Volume 19 — Massachusetts Reports

<p>A ship insured was accidentally stranded within a few miles of her port of destination. The owner of the cargo, which consisted of iron, saved part of it at his own expense. The insurers afterwards sent men on board, who endeavoured without success to get the ship off, and at the same time the men employed by the owner saved 40 tons more of the iron. The two parties of men acted separately, though sometimes assisting each other. After this the insurers contracted to pay D 2600 dollars if he would get the ship off, and the owner agreed that they might offer D 600 dollars for saving the iron, provided the ship should not be saved. ,D got the ship off, and brought her to the wharf with 155 tons of iron on board.</p> <p>It was held, that the 155 tons were liable to contribute in general average to the 260~ dollars, and that the rest of the iron was not 5 that the contract with D having been made bonh Jide, was binding on the parlies to the contribution, anc that the owner should not be allowed to show that the iron might have been saved for^a less sum than his proportion; and that aid rendered by the owner's men to those of the insurers might be set off pro tanto against any claim for compensation for assisting to save the 40 tors.</p>

This was an indictment for an assault and battery and false imprisonment committed on the body of a negro, named Randolph, in the town of New Bedford. A trial was had upon the general issue, and the allegations in the indictment were proved. The defence set up, and which was also proved, was, that Randolph was a slave, formerly the property of one M‘Carty, of the State of Virginia, who was now deceased ; Randolph having fled from his service in his lifetime.

The respondents brought an action of trespass on the case against the petitioner and one Smith,* who is since deceased, for obstructing a way claimed as appurtenant to the respondents’ land, by erecting a store upon the land over which the way was said to run, so near to the respondents’ store that they could not open their doors or windows. The respondents derived their title to the right of way from a deed made in 1769, by Joseph Russell to Benjamin Taber.

This was a writ of right. The demandant having dec.ared on his own seisin within forty years, moved, at the last term, to amend by striking out forty and inserting thirty; but Putnam J. disallowed the motion. And now L. Shaw, for the demandant, suggested the death of one of the tenants, since the action was entered in this Court.

<p>This was an action of debt, brought originally in this Court by the judge of probate of the county of Plymouth, upon a bond purporting to be given by Bethiah Torrey and the defendants, for the faithful performance by Bethiah Torrey of her duties as an administratrix. After oyer, upon which it appeared that the bond was not signed by Bethiah Torrey, but only by her sureties, the defendants pleaded in their third plea, lhat the supposed writing obligatory was not the deed of Bethiah Torrey ; and in their fourth, that it was not a probate bond of any kind, and that the cause of action, if any, accrued to the plaintiff within the original jurisdiction of the Court of Common Pleas, and not within the jurisdiction of this Court. (See St. 1786, c. 55, § 3.) To these two pleas there was a general demurrer.</p>

Referees appointed by a submission entered into before a justice of the peace, pursuant to St. 1786, c. 21, made a report to the Court of Common Pleas, which was objected to, but the Court overruled the objections and ordered the report to be accepted. The defendant thereupon tendered a bill of exceptions.

Assumpsit. The ad damnum was laid at more than one hundred dollars. In the Court of Common Pleas, the plaintiff not being prepared fct trial, and his counsel not thinking that there was any ground for moving for a continuance, the cause went to the jury without any evidence being offered. A verdict was of course found for the defendant, and the plaintiff thereupon appealed to this Court; and at the last term, at Taunton, he obtained a verdict for about 29 dollars.

This was an action of debt, to recover of the defendant a penalty of twenty pounds, for bringing into and leaving in the town of Middleborough one Margaret Pickens, a pauper, who was alleged to have no settlement there, contrary to St. 1793, c. 59, § 15.

Assumpsit for expenses incurred in supporting Priscilla Hayden, a pauper, whose settlement was alleged to be in Chatham.

<p>The St. 1814, c. 39, § 6, provides that any person sustaining any damage by the building of the dams &c,, by the B. and R. M. Corporation, may apply to the Court &c. for the county in which the land lies, for a committee to be appointed to estimate the damage &c. It was held, that where a person owning land by a navigable creek, with works for the manufacture of soap and candles, was subjected to additional expense in procuring his wood, and was obliged to sell his leached ashes at a less price, in consequence of the water communication by the creek being cut off by the dams, this was a damage to his land for which he was entitled to indemnity under this act, and that it was an annual damage.</p>

This was an action of assumpsit brought to recover the amount of expenses incurred by the plaintiffs, at different times, from the year 1806 to the year 1821, in keeping in repair a way in Roxbury, which, as they alleged, the defendants were bound to repair as a part of their turnpike road. The defendants pleaded the general issue.

Indictment for a nuisance, in erecting a fence on a public landing place on Neponset river, in Milton. At the trial, before Jackson J., in February term 1823, it appeared that the place in question was laid out as a landing place in 1658, by the town of Dorchester, which then included Milton and two other adjoining towns.

<p>in an indictment for uttering a counterfeit bank bill, such bill may be set forth as a forged promissory note 5 and where a design to defraud an individual is set fc rth, it is not necessary to allege the existence of the bank of which it purports to be a bill.</p> <p>Where the bank was out of the State, although within 40 miles of the place of trial, the forgery was allowed to be proved by two witnesses who had very frequently received and paid out bills purporting to be made by such bank, and one of whom had once carried a large number of such bills to the bank, which were all paid by the bank as genuine, but neither of whom liad ever seen the president or cashier write.</p>

<p>In an indictment for not repairing a highway it is not necessary to set out the termini.</p> <p>A user of a way for 27 years by the inhabitants of the town where it lies, and of the adjacent towns, was held not sufficient to establish it as a town way on the presumption of an ancient laying out or grant.*</p> <p>Where the user is by the inhabitants of other towns, as well as of the one where the way lies, the way should be described as a public way, and not as a private town way. d</p> <p>Whether a town way, as such, can be established, except in the mode prescribed by the statutes, quaere.</p> <p>The principle of dedication seems to be inapplicable to such a way.</p>

Assumpsit. The third count in the declaration was for the non-delivery of a certain vessel, bargained and sold by the defendants to the plaintiff. To maintain this count the plaintiff proved that the vessel was, by order of the defend* ants, sold to him, by public auction, for the sum of 870 dollars. It appeared, however, that the conditions of sale were not reduced to writing, and that the auctioneer made no memorandum in writing of the sale.

Assumpsit upon a promissory note. The defendant having pleaded the statute of usury, (1783, c. 55,) and tendered his oath in support of his pleas, Varnum, at the October term 1822, stated that the plaintiff was willing to take his oath to the contrary, pursuant to the provisions of the second section of the statute ; and it being made to appear that the plaintiff was so infirm as to be unable to come into court, a dedimus potestatem was issued to Isaac R. Howe, a justice of…

John Phillips commenced an action of covenant against Stevens and died pending the suit; whereupon the plaintiffs in error, being appointed administrators of the goods and estate of Phillips, were admitted to prosecute the suit; and afterwards judgment was rendered against' them de bonis propriis for the whole amount of the costs, which accrued as well before as after the decease of Phillips. And the administrators now brought a writ of error to reverse that judgment.

This was a writ of entry sur disseisin. Plea, nul disseisin. The action was commenced on the 3d of December 1821.

<p>The members of a committee appointed in pursuance of SU 1786, c. 67, § 4, must all act in laying out a highway!</p>

<p>The tools of a debtor exempted from attachment by St. 1805, c. 100, are such as are necessary to enable him to carry on his trade in a convenient and usual manner. And where the debtor himself worked on watches, and his apprentice or journeyman on jewelry, and the jury found the debtor's principal business was that of a jeweller, it was held that the tools used by the apprentice or journeyman were exempted.</p> <p>If a debtor has two distinct trades, whether his tools used in both are exempted from attachment, and if not, whether he or the officer may elect which tools shall be attached, qucere.</p>

<p>Assumpsit. The parties submitted the case to the determination of the Court upon an agreed statement of facts.</p> <p>The plaintiff sent goods to Winslow, Channing & Co., auctioneers, for sale by auction. They sold them on the usual credits, for the customary commission, but did not guaranty the payments. They were accustomed sometimes, after a sale, to take the purchaser’s note to themselves or order for his whole purchase at the sale, and when goods of several persons were sold on the same day, sometimes more than one person became interested in such note. On the 5th of July, 1822, Winslow, Channing & Co., having failed in business, assigned their property for the benefit of their creditors to the defendants. At that time they had sold 'a large amount of property for the plaintiff, for which they had not accounted, and they had on hand, and then assigned to the defendants, divers notes of hand not due, which were given for the goods of the plaintiff and others, sold as before mentioned, which notes, with the amount of the plaintiff’s interest in each respectively, were specified in the statement of facts. At the time of the commencement of this action the defendants had in their hands 1122 dollars, (part of the proceeds of the notes,) which were the proceeds of the sales of the plaintiff’s goods.</p> <p>If the plaintiff was legally entitled to that sum, the defendants were to be defaulted ; otherwise, the plaintiff was to be nonsuited.</p>

<p>The substance of the disclosure of the trustee, to be gathered from his answers to all the interrogatories and from some statements made by him voluntarily, appeared to be this : —In August 1809, he entered into a bond to the United States, as surety, with others, for William Otis, collector ol the revenue for the district of Barnstable, in the penalty oi 2000 dollars, to secure the faithful execution of that office by Otis, and took from Otis a bond of indemnity in the like penalty of 2000 dollars. Before April 1815, Otis became a defaulter, and absconded, owing a large balance to the United States. The trustee being called upon by Mr. Blake, the District-Attorney of the United States, to make up this deficiency, he paid over to Mr. Blake 1000 dollars on- account of that deficiency, without suit upon the bond ; and after paying the money, he caused Otis to be arrested in Matanzas, in the island of Cuba, by a suit or process upon the bond of indemnity. Otis delivered to the agent of the trustee, property and securities from which the trustee has received 2045 dollars, 44 cents, upon receipt of which property and securities the bond of indemnity was given up to Otis to be cancelled. The expenses in obtaining this settlement were nearly 79 dollars. About a year after the trustee paid the money to Mr. Blake, it was restored to him, without interest, upon a discovery of real estate supposed to belong to Otis, which was attached on a suit brought by the United States against Otis on the bond in which the trustee was surety ; which land was afterwards taken in execution upon the judgment on that bond, which was rendered for the sum of 2852 dollars, 13 cents, and the execution returned on the 4th of March 1816, fully satisfied; and afterwards the land was sold for the sum of 2161 dollars by the United States, through their deputy marshal, who gave a deed in due form of law to the purchaser, without any covenant of seisin or warranty.</p> <p>The trustee further stated, that the land was claimed by one Warren by a title adverse to that derived from the United States, though no action had yet been brought against their grantee ; and that during the pendency of the present action, he, the trustee, had been summoned as the trustee of Otis in a process of foreign attachment sued out by the United States.</p>

<p>At the trial at the last November term, before Parker C. J., one Harris testified that he bought a piece of silk braid of the defendant, but that he did not know whether it was of foreign manufacture or not. On this point it was contended on behalf of the defendant, that the government ought to prove affirmatively that the article was of foreign manufacture ; but the judge instructed the jury, that as such articles were principally, if not entirely, of foreign manufacture, they might presume this to be, unless the contrary were proved. A verdict was found in favor of the Commonwealth, and if the foregoing direction was wrong, the verdict was to be set aside and the defendant was to be discharged from the indictment.</p> <p>.The Court now being of opinion that there should have been proof that the article in question was of foreign manufacture, the defendant was accordingly discharged.2</p>

<p>Fr eight was insured from Richmond to Nice. The ship sailed on the 2d of September, and in consequence of sea damage put into Kennebunk on the 9th to repair. ii was found that two months would be required for making the repairs, and unloading and reloading, and the owner of tobacco on board demanded that it should be sent on in another vessel, as otherwise the object of the voyage, which was to get the tobacco to the French market at the fall concours, would be defeated. The freight from Kennebunk would have been as high as that from Richmond, or higher, and the ship-owner declined hiring another vessel, but offered to repair his own and proceed on the voyage. The shipper insisted on the tobacco’s being sent on immediately or delivered up to him, otherwise it would be abandoned and the ship-owner looked to for damages. He stated also that the freight, if any were due, should be settled. The ship-owner then delivered the tobacco, and the shipper sent it on in a vessel belonging to himself. The freight was abandoned on the 12th of September. The underwriters knew that the cargo consisted of tobacco. Held, that the ship-owner might have made the repairs and detained the tobacco for the purpose of earning the freight, and that the underwriters were not liable.</p>

<p>A public officer, in a report of an official investigation into his conduct, puhiíifced the testimony of a witness with these comments 3 — “ I am extremely loath to imputa to C (the witness) or S, his partner, improper motives in regard to the false accusations against me 3 yet I cannot refrain from the remark, that if their motives have not been unworthy of honest men, their conduct is furnishing materials to feed the flame of calumny &c., has been such as merit the reprobation of every man having a particle of virtue or honor &c. They have both much to repent of for the groundless and base insinuations they have propagated against me.” This was held to be a libel.</p> <p>In an action for a libel a verdict will not be set aside for excessive damages, unless they are so flagrantly outrageous as manifestly to show that the jury were actuated by passion, partiality, prejudice or corruption.</p>

Trespass for taking and carrying away divers articles of household furniture. The defendants pleaded severally the general issue. The property in question was lent by the plaintiff in September, 1820, to one Richardson, his brother in law, with the view of setting him up in the business of tavern-keeping. It did not appear that any compensation for the use of it was agreed for between them, although Richardson testified that he expected to allow a reasonable one.

<p>If an agent, having blended a demand due to his principal with one due to himself, receives a general remittance from the debtor, it shall be applied towards the discharge of both debts in proportion.</p>

Assumpsit upon a promissory note, against the defendants as second indorsers.

<p>A and B executed two parts of an instrument intended to be tripartite, and puc porting to be an assignment by A, who was insolvent, of all his property to B, a creditor, in trust to sell, and out of the proceeds to pay the whole of B's debt, a certain sum to A, and a certain proportion of the debts of other creditors who should execute the instrument of the third part. The property was delivered to B, but a creditor of A attached it before the instrument was signed by any otner creditor than ^ Held, that B’s signing might be considered as a signing by a creditor of the third partj that the instrument was not necessarily void because the property assigned was much more than the amount of B's debt, but that it was void on account of the reservation in favor of A; and that this reservation appearing on the face of the instrument, the question whether it was fraudulent was a question of law.</p>

The defendant was indicted in the Municipal Court, upon St. 1791, c. 58, the third section of which provides that no innholder &c. “ shall entertain or suffer any of the inhabitants of the respective towns where they dwell, or others, not being travellers, strangers or lodgers in such houses, to abide or remain in their houses &c., drinking &c., on the Lord’s day &c., on the penalty of ten shillings,” (increased by St. 1796, c. 89, to 3 dollars, 33 cents,) payable by such…

<p>Assumpsit upon a promissory note for the sum of 665 dollars, made by Hyde, the intestate, to Samuel Learned, and by him indorsed to the plaintiff.</p> <p>At the trial, before Parker C. J., at November term 1823, one ground of the defence was, that the note was given upon a usurious consideration ; another, that it was procured upon an insufficient consideration, in consequence of false representations and imposition in relation to the value of certain promissory notes, which were taken by the intestate for a great part of the consideration. The jury found a verdict for the defendant, on the ground of "usury.</p> <p>Upon this point it appeared in evidence, that Hyde was a man of little property, having a farm valued at 1300 or 1400 dollars, with a very small stock upon it. The farm was unincumbered, but the intestate was in debt to the amount of 300 or 400 dollars. He was far gone in the habit of intoxication, and his affairs were in a declining state. He had never been known to purchase any note or other security. At the request of one Ballough, who was surety on a note given by Hyde to one Baldwin for between 100 and 200 dollars, Baldwin caused the note to be put in suit, and the writ was delivered to the before-mentioned Learned, who was a deputy sheriff; and Learned attached the personal property of Hyde, and Ballough was made keeper of the property attached. Ballough testified, that when Learned came with the writ, he (the witness) urged Hyde to settle the debt, but Hyde said he had not the money. Hyde asked the witness to lend him 300 or 400 dollars, which was refused. The witness then suggested that perhaps Learned would lend the money, but he declined. The witness again' applied to Learned to advance the money, but he again refused. The witness then asked one Hayden, who was present, to furnish the money, but he also refused. Learned and Hyde then went out of the room together, and after a few minutes’ absence Hyde returned, asked for his hat, and said he was going to Watertown. The witness was five or six days in the house as keeper of the property attached. Learned had two or three other writs against Hyde. Hayden testified, that he was asked to lend Hyde 200 dollars, which he declined doing because longer credit was wanted than he could conveniently give ; that he heard Learned refuse, when asked to advance the money ; and that a mortgage being talked of, Learned said he did not like to take a mortgage for so small a sum, as it might be a long time before he should get his money. Levi Thaxter testified, that on the day of the date of the note, which was on the day of the above transactions, Learned and Hyde came together to his office in Watertown for his assistance in settling some business for them ; that Hyde gave the note to Learned for 665 dollars, payable in one year, and at the same time executed a mortgage of his farm to secure the note ; that the consideration of the note and mortgage was 200 dollars, which Learned undertook to pay for Hyde, and two notes of hand amounting to 465 dollars, one signed by one Whitney for near 400 dollars, the other by one Goddard for about 70 dollars ; that the papers were signed freely by Hyde, who appeared to comprehend what he was about; that the note's and mortgage were left with the witness, in order that Learned might ascertain whether the land was free from incumbrance • that in a day or two afterwards Hyde called with Collins, the defendant, and took the two notes; that Collins said they were not good for any thing, and advised Hyde not to take them ; that one Hunting came in, who said he should be glad to take them and give paper for them; (he being a paper-maker.) The testimony as to the value of the notes signed by Whitney and Goddard was contradictory, though none of the witnesses thought Whitney could pay his note, otherwise than by instalments, by the proceeds of his labor. Several witnesses thought both notes entirely worthless.</p> <p>Some declarations of Learned were given in evidence, which had a strong tendency to show that before this transaction he had a design to acquire a title to Hyde’s farm for a consideration much below its real value, depending upon the weakness of Hyde’s understanding for the success of his project. This evidence, however, was admitted under a particular caution to the jury, it being a question to be determined by them, whether the plaintiff took the note under such circumstances as to make such evidence- admissible against him.</p> <p>The jury were instructed, that if they were satisfied from what took place at Hyde’s house, that the real bargain was, that Learned should lend to Hyde 200 dollars, and that he consented to do this only upon condition that Hyde would take the notes of Whitney and Goddard and give his note and mortgage for the amount of these notes added to the 200 dollars to be advanced, and if they were satisfied that these notes were worthless, or were worth so much less than their nominal amount as to make the sum to be paid amount to more than six per cent, over the value of the property-received, and that this was a contrivance to get an enormous compensation for the use of the money lent, the bargain was corrupt and usurious ; but that if Hyde agreed to purchase these notes without considering them as thrown in to cover the usury, the note in suit would not for this cause be void.</p> <p>One of the jury, when about retiring with the cause, having asked what would become of the notes passed to Hyde, in case they should upon any ground avoid the note in suit, or should deduct the amount from this note, the judge answered that they would remain the property of Learned, or of his assignee of this note. This took place in the hearing of the counsel on both sides, and some conversation took place between them about the notes, the defendant’s counsel saying he was ready to give them up; but no objection was made to the observation of the judge, nor did the judge consider it as a part of his summing up, or as having any effect upon the cause.</p> <p>The verdict being for the defendant, the plaintiff moved the Court to grant a new trial.</p> <p>Prescott and Morey, in support of the motion, contended that the plaintiff was an innocent indorsee of the note, and that the evidence did not warrant the jury in finding that the note was grounded on a usurious contract. To constitute usury, a bargain by both parties for a usurious loan must be proved. There was no evidence that Learned was trying to get more than six per cent, interest, or that Hyde thought he was giving it. Hyde took the notes on the supposition that they were good. If they were worth nothing, as some witnesses stated, more than 400 dollars must have been given as a premium for the use of two hundred. Hyde might have borrowed the money elsewhere at the usual rate of interest. Suppose Learned had passed to Hyde, instead of these notes, bills of a bank which Learned knew had failed ; Hyde would have had a remedy, but the note in suit could not have been avoided for usury in the hands of an innocent indorsee. So here there may have been gross fraud on the part of Learned, but the contract was not usurious. To show how much the jury must have found before they could find Usury, we refer to the following authorities. Plowd. on Usury, 201 ; Hawk. P. C. bk. 1, c. 82, § 52 ; Lloyd v. Williams, 3 Wils. 250 ; 3 Chit. Pl. 273 ; 3 Morg. Vad. Mec. 172.</p> <p>The answer of the judge to the juror was incorrect. Roberts v. Tremayne, Cro. Jac. 508 ; Simpson v. Warren, 15 Mass. R. 462. That it was in the hearing of the counsel in the cause and not objected to, will not preclude us from urging it as a ground for a new trial. It would not have been proper to interrupt the judge in this particular case. It is said that the judge did not consider the remark as having any effect on the verdict. We are not bound to show that it had. It is sufficient if it had a tendency to influence the jury ; and that it had such a tendency is to be inferred from the juror’s asking the question, and we have taken an affidavit to prove that it did have an influence on the jury. This verdict being penal in its consequences, the Court will the more readily grant a new trial for a mistake or misdirection of the judge. Wilson v. Rastall, 4 T. R. 753.</p>

Assumpsit on a written contract, bearing date the 21st of December, 1821, which was as follows: — “It is mutually-agreed &c., that said King will purchase of said Dana, and the said Dana will sell and duly transfer to said King, or his assigns, at some time within one year and after one month from the date hereof, 100 shares in the capital stock of the Bank of the United States, for and at the rate of 115 dollars per share, the said King having this day paid in part thereof…

<p>A bond for the debtors’ liberties restrains the debtor within the liberties established by law for the time being. And it was held, that the statute of the 10th of February, 1823, narrowing the liberties in Suffolk after the 15th of May following, was not unconstitutional as appued to a bond given before the passing of the act, but that the principal in such bond, having after the 15th of May made use of the liberties in their former extent, was guilty of an escape.</p>

<p>Whrre tne precise direction of a street in Boston, as laid out and recorded, was uncertain, the laying out was held to be void.</p> <p>The principle of dedication of a way has not, it seems, been adopted in this State And in trespass quart clausum, a plea that the public have used and enjoyed a common way over the close for six years, and that the defendant, to remove an obstruction, dug up the soil, was held bad on demurrer.</p>

At the October term, 1818, of this Court, in Middlesex, the Attorney-General filed an information, stating that Ross, before the Boston Municipal Court, holden in February 1816, xvas convicted of the crime of breaking and entering the house of Hubbard and Green and committing a larceny therein, and was then and there sentenced to be punished by solitary imprisonment for five days, and afterwards by confinement to hard labor for five years : And further, that at the term of…

This case was argued at March term 1823, by Z. G. Whitman for the petitioner and Loring for the respondent, and was continued for advisement. The opinion of a ma jority of the Court was delivered by Wilde J. This case comes before us on petition for a writ of certiorari, to quash the proceedings before a justice of the peace on a prosecution for the recovery of a penalty under the militia laws, and involves a question of considerable difficulty and importance.

This case, which was upon a writ of entry sur disseisin wherein the demandant claimed two parcels of land in Boston, was submitted to the… Held: that under St. 13 Eliz. a conveyance by the fraudulent grantee to an innocent purchaser was void, as against creditors, on the ■ ground that the proviso in that statute did not extend to such a conveyance ; and in Connecticut likewise, where there is a similar statute, but without the proviso, such a conveyance was held to be void.

<p>C being summoned as trustee of H, disclosed that a general assignment was made to himself by H, in trust to pay debts due to himself and others, and to pay over the surplus to H 5 that being told the plaintiff intended to summon him, he gave a bank check to H for the probable surplus, without any understanding that it should not oe presented for payment, but that it was not presented ; that afterwards H being about to be absent from the commonwealth, C suggested that the check should be left with some one who might apply it to the payment of debts not provided for, and it was put into the hands of C's clerk, with whom it still remained. It was held, that giving the check was not a payment of the surplus, and C was adjudged trustee.</p>

Trespass for taking a quantity of wine and of vinegar. The defendant pleaded the general issue, and filed a brief statement, setting forth that he was the sheriff of Suffolk, and that the articles in question were the property of William Plympton and were taken by John S. Williams, a deputy of the defendant, by virtue of a writ of attachment against Plympton in favor of one Fulham.

The plaintiff declared in assumpsit, for that whereas, in consideration that he would buy of the defendant 2000 gallons of winter oil of prime quality, the defendant “ undertook and faithfully promised him, the said Hastings, that the said on was of a good and superior quality, to wit, prime quality winter oil,” he, the plaintiff, did buy the 2000 gallons, yet that the oil was not prime quality winter oil.

<p>A, B and 0, in 1810, gave a bond conditioned that A, as agent of a hat manufacturing company, should faithfully discharge the duties of that office during his continuance therein, and account &c. and surrender, pay over and finally settle &c. whatever funds, stock or money he should have in his hands, whenever thereto requested. When the bond was given, A had charge of a store belonging to the company, and his duty was to deliver hats to the proprietors, keep accounts with them, receive their promissory notes and deliver them to the treasurer of the com pany, and to sell to other persons ; for which services he received a commission, he guaranteeing the debts on sales by retail. In 1816 the company voted that the store should be given up, that a contract should be made with some person to dispose of the hats in future, in such way as should best promote the interest of the concerned, and that the imperfect hats in the store should be sold by auction. A then agreed to deliver the hats in cases to the proprietors from his own store, and he was to be supplied at wholesale prices with hats for retailing on his own account, and Wus to keep the books and accounts with the company. It was held that the acts of A under this new arrangement were not covered by the bond.</p> <p>A replication alleging as a breach of such bond, that the agent had in his hands, in 1822, money which he refused to account for, and a rejoinder that he had not, do not present the question whether the agency covered by the bond ceased in 1816, but the rejoinder should have been, that such agency terminated in 1816, and that for all money received up to that time the agent had accounted.</p> <p>A’s confession after 1816, that he had concluded to continue the agency, and that he was under bond as agent, was held inadmissible as evidence to charge the surety, because it was a confession as to the legal effect of his contract, mid also because he had no legal interest in the question whether his surety W'as bound.</p> <p>After his new appointment A wras debited by the company with the balance of accounts of the first agency, and payments were successively made during six years, and the balance continually changed, so that a larger sum than the old balance had been paid over by him, though a large balance still remained against him*. Held that a new debt was created by this proceeding, for which the surety was not liable.</p>

<p>Assumpsit for goods sold and delivered. Rogerson, one of the defendants, was defaulted, and Jefferson pleaded that he never promised with Rogerson, and issue was joined thereon.</p> <p>At the trial, before Parker C. J., the plaintiff, to prove that the goods were sold to the two, called Elisha Parks as a witness, who being inquired of respecting his interest in the suit, stated that he was an auctioneer and commission merchant, that the goods were sent to him by the plaintiff to sell, and that he had advanced the plaintiff money to near the value, on this consignment; that the plaintiff was still indebted to him for the advance, and was insolvent; that he had other security for his debt, but that he was uncertain whether it was sufficient or not; that he did not know whether he had a lien on the proceeds of these goods, but that if the proceeds came into his hands, he should undoubtedly retain them on account of his debt; and that as agent of the plaintiff he had applied to the attorney to commence this suit. An objection was taken to his competency, but it was overruled. If he was not a competent witness, the verdict, which was for the plaintiff, was to be set aside, and a new trial was to be granted.</p> <p>S. D. Ward now contended that Parks was incompetent to testify, by reason of his being interested. He had made advances on these goods and had a lien, and was a purchaser pro tanto. If process of foreign attachment had been served on the defendants and they had answered that Parks had forbidden them to pay over the proceeds, they would have been discharged. Had a commission of bankruptcy issued against Marland, Parks would have been entitled to the proceeds as against the assignees. Row v. Dawson, 1 Ves. sen. 331 ; Yeates v. Groves, 1 Ves. jun. 280. This case differs from Benjamin v. Porteus, 2 H. Bl. 590, Buckmaster v Harrop, 13 Ves. 474, and Dixon v. Cooper, 3 Wils. 40, where a factor was admitted as a witness, for here Parks was interested both as factor and as pledgee. A witness is incompetent who expects to pay his debt out of the money recovered. Powel v. Gordon, 2 Esp. R. 735 ; Innis v. Miller, 2 Dallas, 50 ; New York Slate Co. v. Ogden, 11 Mass. R. 60.</p>

<p>Previous to St. 1817, c. 190, $ 35, which prohibits guardians from selling stocks with out a license from a judge of probate, a guardian of a person non compos mentis had a general authority to sell any personal property of his ward, and though he might improperly make a sale, a bond fide purchaser would have a good title.</p> <p>T. D. bequeathed to his daughter N. B. the improvement of shares in a bridge corporation during her life, and at her decease to be equally divided among her heirs—» and the residuum of his estate to S. L. B. and N. B. &c., but if they should die without heirs, &c. Held, that heirs meant children, and that N. B. took an interest for life in the shares, with remainder to her children.</p> <p>The corporation gave N. B. a certificate that she was a proprietor during life, pursuant to the will, and she being non compos mentis, her guardian, before the St. 1817, c. 190, made a deed of the shares themselves, in which the certificate was recited, to the p]aio4iff, a bond fide purchaser. The deed was left with the clerk of the corporation to be recorded, but no new certificate was issued to the plaintiff. Held that all N. B.*s interest passed by the deed, and that the plaintiff might maintain an action for money had and received against the corporation, to recover the divi dends.</p>

<p>A vessel was valued at 2000 dollars, and was insured for that sum, on the 1st of June, for whom it might concern. She was then owned by the plaintiff, who, on the 1st of July, made an absolute bill of sale of her, taking a written memorandum from the assignee, wherein he promised to appropriate the proceeds of the vessel to himself as security for indorsing for the plaintiff, and to pay over the balance, If any, to a creditor of the plaintiff. On the 19th of July further security was given to the assignee, and the memorandum was then exchanged for an instrument, under seal, made for the same purposes, wherein the assignee covenanted that the proceeds of all the property assigned to him, including the vessel, should be applied as before mentioned. Afterwards a loss happened. It was held, that notwithstanding the transfer, there was, at the time of the loss, a subsisting interest in the plaintiff, which was protected by the policy 3 since the debts, on account of which the transfer was made, would still exist, except so far as they should be discharged by the proceeds of the property assigned.</p> <p>The vessel insured as above mentioned put into the harbor of St. Domingo, having received damage from the perils insured against. A survey was called and the surveyors reported that she could not be repaired there, by reason of the want »f materials and the extraordinary expense of making repairs at that place, without incurring an expense exceeding her value, and they therefore condemned her to be sold for the interest of whom it might concern. The hull, sails and other material were accordingly sold, in separate lots, for the gross sum of 1086 dollars. The purchaser afterwards refitted her for sea. It was held, that the survey was not conclusive evidence of the necessity of the sale 3 that if the sale were necessary, it would constitute a total loss without an abandonment, and in such case the plaintiff could recover for a total loss ; but that in case of a constructive total loss, he could recover only as for a partial loss, inasmuch as by the transfer he had put it out of his power to make an abandonment.</p>

<p>This was an action of indebitatus assumpsit brought to recover the sum of 27 dollars, 33 cents, as a balance due for services rendered by the plaintiff on the defendant’s farm. Plea, the general issue.</p> <p>At the trial, in the Court of Common Pleas, before Strong J., the defendant admitted that the plaintiff had performed the service set forth in the declaration, and for the price therein stated, and that he, the defendant, had paid him from time to time, before he left the defendant’s service, money amounting in the whole to about 36 dollars, and on account of his labor, but the defendant proved that the plaintiff agreed to work for him a year, for the sum of 120 dollars, and that he, the defendant, agreed to pay him that sum for his labor. He also proved that the plaintiff voluntarily left his service before the expiration of the year, and without any fault on the part of the defendant, and against his consent.</p> <p>The judge thereupon instructed the jury, that the plaintiff would be entitled to recover in this action a sum in proportion to the time he had served, deducting therefrom such sum, if any, as the jury might think the defendant had suffered by having his service deserted ; and if such sum should exceed the sum claimed by the plaintiff, they might find a verdict for the defendant.</p> <p>The jury having returned a verdict for the plaintiff, the defendant filed his exceptions to this instruction.</p> <p>The Court now called on the counsel for the plaintiff to begin, as he was to contend for what seemed to be a new principle.</p>

<p>This was a bill in equity to redeem certain real estate held by the defendant by a deed of mortgage from the plaintiff and by assignments from other mortgagees. The cause was argued on the 10th of July, at an adjourned session. The facts in the case, and the points made by the counsel, will appear sufficiently in the opinion of the Court as delivered by</p>

<p>Debt upon a bail-bond, taken by the plaintiff, as constable, in a suit brought by one Winthrop against one Clapp, the principal in the bond. The defendant was the only surety.</p> <p>The defendant pleaded in bar, that the plaintiff did mot commence his action within one year next after entering up final judgment in the action against the principal, as required by St. 1784, c. 10. To this there was a general demurrer.</p>

<p>An officer having on an execution against a manufactunng corporation arrested a person who was supposed to be a member of the corporation, but who stated that he was not, obtained from the creditor’s attorney a promise of indemnity for committing him. Held, that such promise was not illegal.</p> <p>An attorney at law cannot bind his copartner by such a promise, but the partnership is a circumstance, from which, with other circumstances, it may be inferred he intended to act for both, and where the copartner, subsequently to the commitment, adopted and ratified the promise, it was held, that the officer might maintain an action against them jointly.</p> <p>Admissions made during an attempt to compromise an action, of particular facts which are independent of any offer, may be given in evidence.</p>

<p>By an indenture dated in March, the plaintiff agrees to give the defendant 450 acres of land in Ridgeville, Ohio, the land to be as good as W's, and the defendant is to receive in addition 200 dollars at or before the 1st of July, and the plaintiff, as agent of N, is to receive therefor certain lands of the defendant, the possession to be given of the defendant's land by the 1st of April, and the defendant is to make his selection after B, which selection is to be made by or before the 1st of July, and in consequence of the defendant's not satisfying himself, then C, F and I shall average if he chooses the land above mentioned according to the above contract, or refuses to select himself, and if the said lands should not prove to be as good as the average of lands in that vicinity of towns, then this contract to be void: —-</p> <p>Held, that the covenant of the defendant to deliver possession by the 1st of April was an independent covenant, and that the plaintiff might declare for a breach of it without taking any notice of his own covenants, and that it was insufficient to plead that the land in Ridgeville, from winch the defendant might have made his selection, was not as good as W's or that the plaintiff was not the agent of N, or not authorized by N to make the contract or to prosecute the action, or that N had no land in Ridgeville.</p> <p>field also, that the covenants to convey were mutual dependent covenants, and that the plaintiff should have averred performance on his own part, or an excuse for non-performance; and that the defendant having omitted to select by the 1st of July, the payment or tender of the 200 dollars was a condition precedent to the plaintiff's right to demand a deed of the defendant, and should have been averred.</p>

This was an action on the case against the defendant, as sheriff of this county, for the neglect of Ralph Deming, one of his deputies, in suffering an escape of one Platt Herrick, whom he had arrested on the 3d of October 1821, on a writ of attachment sued out by the plaintiff.

This was an action for a libel published by the defendants concerning the plaintiff. Plea, the general issue. At the trial, before Wilde J., the plaintiff, in support of his action, showed the writing containing the supposed libel, which was a complaint made to a Baptist church, whereof the plaintiff was a member, charging him with having sworn falsely when under oath. The complaint was made out on the 27th of September and' received by the church on the 15th of October.

This case came before the Court upon an agreed statement of facts. The demandant, at the time of her intermarriage with John Kriger in 1801, was tenant in dower of the premises demanded in the present action.

In a writ of entry, Acocks and Cary, the tenants, plead that they cannot render to the demandant the premises demanded, inasmuch as they are not now, as they were, tenants of the freehold, but that during the pendency of the action in this Court, and after issue joined in the Court of Common Pleas from whence it was removed to this Court by appeal, William Chapman and Reuben Ely, creditors of Acocks, caused executions to be extended on the premises, which extent ousted and…

This was an action of slander. The plaintiff, in the first count of his declaration, after the usual statement of good character, alleged that the defendant “ contriving and maliciously intending to hurt &c. the plaintiff in his aforesaid good name &c. and to expose him to the penalties of the law provided against the wilful and malicious burning of private buildings, did on, &c., in the hearing and presence of divers good citizens &c., and in conversation with the same of…

The only question in this case, which was a writ of entry, related to the validity of the extent of an execution in favor of the demandant against Jaquins. The objection made was, that by the return of the officer and the certificate of appraisement signed by two of the appraisers, it appeared that the third appraiser, who was chosen, by the debtor and who acted with the other appraisers, did not sign the certificate because he did not agree in the appraisement.

<p>Where an infant made a special agreement to labor for a certain time for certain wages, and before the time expired left the service of his employer voluntarily and without any fault on the part of his employer, it was held that he might nevertheless recover on a quantum memit for the services performed. But it seems, that if tha employer is injured by the sudden termination of the contract without notice, a deduction should be made on that account.</p>

Noble, administrator on the estate of Samuel Porter, presented a petition to the judge of probate, praying that a certain sum of money in his hands might be ordered to be distributed among the widow and heirs of the intestate, and at the same time produced papers containing the following me morandums in the handwriting of the intestate. “ Received the undermentioned articles of household furniture of Samuel Porter, to return if called for by said Porter,” &c. (Signed)…

Assumpsit for money expended by the plaintiffs in the support of Hannah Allen, a pauper, whose settlement was in Wendell, a town adjoining New Salem.

<p>This was an action of debt. The plaintiff, m his first count, alleged that on the 22d of February, 1820, by Daniel Smith &c., a committee of the inhabitants of Granby duly appointed and authorized by them to contract for and superintend the building of a meetinghouse in that town, by their writing obligatory sealed with their seal, it was agreed by and between the plaintiff and the defendants, that the plaintiff should build a house for public worship &c., and that the defendants, in consideration that the plaintiff should build the meetinghouse in such place as a committee appointed for that purpose should designate, agreed to pay him &c. And the plaintiff averred that he had erected a meetinghouse in the place designated by a committee duly authorized by the defendants for that purpose, &c.</p> <p>In the second and third counts the plaintiff declared generally for work done, materials provided, and money ex pended for the defendants in building a meetinghouse</p> <p>-The defendants, after oyer, pleaded to the first count, 1. Non est factum 2. That the committee were not authorized to make the deed: 3. That the locating committee had never designated a place : 4. That the plaintiff did not build on the place designated : 5. That he built against the will and without the authority of the defendants, on land belonging to private individuals. Issue was joined substantially on all the foregoing pleas. The defendants pleaded, 6. That on the 2d of May, 1820, they gave the plaintiff notice that they had discharged the contracting and superintending committee and had refused to confirm the doings of the locating committee, and that on the 19th of April, 1820, before the plaintiff began to build, they gave him notice not to build in the place where he did, and requested him to build in another place which they pointed out to him. To this the plaintiff replied, that the defendants did not, before he began to build, give him notice not to build where &c., and request him to build elsewhere &c., and issue was joined.</p> <p>To the second and third counts the defendants pleaded nil debent, and issue was joined.</p> <p>At the trial, before Wilde J., the plaintiff, to prove the first and second issues, produced the sealed contract declared on, and copies of certain votes of the town of Granby, by which it appeared that on the 21st of February, 1820, it was voted, that the persons named in the deed (thirteen in number) should be a committee to procure a master builder and superintend the building of a meetinghouse for the town; that 4000 dollars should be raised by a tax, towards defraying the expense ; that the committee should be empowered to borrow money on the credit of the town, if it should be found necessary ; and that Daniel Stebbins, Isaac C. Bates and Philo Dickinson (not inhabitants of the town) should be a committee to locate a place for the town to build on. The defendants objected, that the superintending committee had no authority to contract for building the house, and especially that no authority was given them to contract by deed. They also objected, as to the first issue, that the deed did not bind the town, not being in the name of the town but in the names of the committee. The judge, intending to reserve these questions, ruled that the plaintiff had proved these issues by this evidence, the facts not being controverted, and the jury accordingly found a verdict thereon for the plaintiff.</p> <p>Upon the third issue the plaintiff gave in evidence a writing, dated the 4th of March, designating a place on r: Cook’s hill, so called, at or near a stake,” &c., which was signed by two of the locating committee, the third being present and dissenting. The defendants objected that the whole three ought to agree. The judge, intending to reserve this question, ruled that the locating by two, all being present, was sufficient; and the jury found this issue for the plaintiff.</p> <p>Upon the fourth issue a vote of the town, of the 17th ol April, was given in evidence, adding three persons to the contracting committee. Upon this issue and the fifth, it was contended by the plaintiff, that the superintending committee agreed to the place upon which the house was built; and he introduced witnesses who testified, that at a meeting of the original superintending committee, called for the purpose of marking out the ground, two of the additional members attended, and that the chairman expressing doubts whether they were entitled to be considered members in reference to that subject, six of the old committee, with the two new members, without assigning any reason for their conduct, withdrew, and that six, at least, of the members who remained, agreed that the house should be built where it was in fact built, the seventh intimating his readiness to assent if they could do no better. On the part of the defendants also witnesses were introduced, who testified, that the chairman expressed an unwillingness to act with the two new members of the committee and informed the committee that there was • nothing for them to do, and that thereupon, considering the meeting as dissolved, six of the old members, with the two new ones, retired. The chairman testified that he had no intention of dissolving the meeting, and all the members who remained and acted, seemed, according to their own testimony, and that of several others present, not to understand the remarks of the chairman as indicating such an intention. Some of the witnesses of the plaintiff testified, that the chairman remarked, that there was nothing more for the committee to do than to proceed in the business of the location, as the plaintiff was expected to be on with his hands the next day, and the ground must be prepared.</p> <p>The judge instructed the jury, that the town had authority to add to the superintending committee, and that the new members ought to have been recognised as a part of the committee, and that if the jury believed that in consequence of their attendance, or for any other reason, the meeting was dissolved by the chairman, the subsequent proceedings were irregular.</p> <p>Both issues were found for the defendants ; and the jury also found specially, that the chairman refused to act with the additional members, and that eight of the committee retired, considering themselves as dismissed by the chairman ; and in answer to an inquiry by the judge, in regard to the views of those who remained and proceeded to act, as to which they were directed to find specially, they stated that they had not considered that part of the case.</p> <p>To prove the sixth issue the defendants gave in evidence a vote of the town, of the 10th of April, to reject the designation of a place reported by two of the locating committee, and another, of the 1st of May, to dismiss the superintending committee ; and they proved that this vote was communicated to the plaintiff, and that certain individuals, who were the selectmen of the town, offered to the plaintiff to be at the expense of removing the timber and other materials, and to indemnify him for not building where he proposed to, and also to indemnify him for building in another place, and also assured him, that if he went on to build as he purposed, the town would not pay him. The jury were instructed, if they believed the testimony, to find for the defendants; which they did. They also, under the direction of the judge, found specially, that at the time of the notice and offer above mentioned the plaintiff had contracted for boarding his hands, and that a great part of the materials for building were on the ground where he built, and that the pulpit-windows and cornices were made.</p> <p>Upon the issues on the general counts the plaintiff gave *n evidence the building of the meetinghouse ; but the defendants objected to evidence on these counts, there being evidence that there was a special contract, which the plaintiff contended was still in force ; and that the work was done pursuant to this contract; and that the town, by their selectmen, had given notice to the plaintiff not to build on the spot where he did, and requested him to build on another place. The judge ruled, that the plaintiff could not recover on his general counts, these facts being proved or admitted, and the jury found on these issues for the defendants.</p> <p>■ The verdict was to be subject to the opinion of the whole Court.</p>

<p>In covenant on an indenture of apprenticeship the defendant pleaded, that the plain tiff intended to remove to a distant State for the purpose of there carrying on his trade, and to carry the apprentice with him against the will of the apprentice and of the defendant, and that the plaintiff afterwards did actually remove tbilherj that if the apprentice had remained with him till he went and had refused to accompany him, he would have been abandoned by him 3 whereupon the apprentice, to avoid being carried out of the commonwealth and to provide against/ being deserted, left the plaintiff's service. The plaintiff replied, de injurib sub, fyc. Held, upon general demurrer, that the plea was bad, as alleging only an intention of the plaintiff to violate his covenants 3 and that the replication also was bad.</p>

On the 17th of September, 1795, Seth Murray made his last will, bequeathing £ 50 to Elizabeth Maltby, now Elizabeth Chapin, one of the appellants, to be paid out of the proceeds of a certain parcel of land which he directed his executors to sell, and making Isaac Maltby and his wife Lucinda Maltby residuary devisees and legatees.

This was a petition for partition, in which the petitioners claimed an undivided moiety of a tract of land. The respondent pleaded that he was sole seised of the demanded premises, and traversed the seisin of the petitioners ; upon which traverse issue was joined. The petitioners claimed in the right of the wife, as one of the heirs of Seth Phelps. The wife of the respondent was the only remaining heir.

This action, which was assumpsit for goods sold and delivered and money had and received, was brought originally before a justice of the peace, and was carried by appeal into the Court of Common Pleas. The defendant pleaded the general issue and relied on the statute of limitations. St. 1786, c. 52. The writ was dated on the 25th of November, 1822. The plaintiff, to support the issue on his part, offered in evidence the following order: — 11 Mr. Joseph Bangs.

At May term 1823, in the county of Hampden, the prisoner, an infant under the age of fourteen years, was convicted of an assault with intent to commit a rape. And now, upon a motion in arrest of judgment, E. H. Mills and G. Bliss junior, for the prisoner, contended that it was clear from all the authorities, that an infant under that age is presumed by law to be unable to commit a rape; 1 Hale’s P. C. 630 ; 4 Bl. Com. 212; 1 East’s P. C. 446, § 8 ; and in 3 Chit. Cr.

<p>This was a writ of entry brought by the demandant, a spendthrift under the guardianship of Stephen Thompson, to recover seisin and possession of two parcels of land. The demandant counted upon his own seisin and a disseisin by the tenant; who pleaded nul disseisin.</p> <p>At the trial, before Lincoln J., the demandant, to prove his seisin, offered in evidence the return of an execution in nis favor against the tenant, which had been extended on the lands in question.</p> <p>The tenant objected that the extent was insufficient: — 1 Because it appeared by the return, that the appraiser on behalf of the demandant was appointed by Thompson, as guardian to the creditor, and that seisin was delivered to Thompson, and this too, when it did not appear by the judgment or execution that the creditor was under his guardianship : — 2. Because it did not appear by the certificate of the appraisers, that they entered upon the land appraised, but only that they viewed it and set it out by metes and bounds : — 3. Because it appeared by the certificate and return, that there were two different parcels of land extended upon and appraised, and of different descriptions, one having buildings upon it, and that both were appraised together in one gross sum or value. But it being admitted that Thompson, during the pendency of the original suit, was duly appointed guardian, and it appearing by the record of the case that he appeared in court and prosecuted that suit in behalf of his ward, the judge overruled the objections, and a verdict was returned for the demandant, to be subject to the opinion of the whole Court.</p>

<p>The demandant in a writ of entry shall recover according to his title, where he de* mands more than he has a title to.</p> <p>A demandant counted upon her sole seisin, and upon nul disseisin pleaded she show ed that she was a coheir with five others, and it was held that she should recover but one undivided sixth part.' But if she had proved a-seisin in fact of the whole, without showing such joint title, she might have recovered the whole against tne tenant, who proved no title in himself.</p>

<p>This was an action of trespass brought by Granger, whose property had been taken for the payment of a tax assessed against him in December, 1822, by the defendants, as assessors of the Middle Parish of Granville. The plaintiff recovered a verdict in the Court of Common Pleas, and the case now came up on a bill of exceptions filed by the defendants.</p> <p>It appeared that the defendants did not make a list and valuation themselves of each individual’s taxable property in the parish, but that they assessed the tax in question according to a list and valuation made by the assessors of the town, in the same December, for the purpose of assessing the town taxes; and the case turned on the legality of an assessment so made by the defendants.</p>

Assumpsit for expenses incurred by the plaintiffs in the support of Daniel Prince, a pauper, whose settlement was alleged to be in Springfield. The only question raised was, whether the pauper was a citizen of this State, and so capable of gaining a settlement in Springfield. This question depended upon the following facts, which appeared upon a case stated. Prince was born in Great Britain.

<p>At the nisi prius term of this Court holden in the county of Hampden on the first Tuesday of September 1824, Taylor presented a petition,' sworn to before a justice of the peace, in which he stated, that at a legal town meeting of the inhabitants of the town of Chester, in that county, holden for the choice of town officers on the 2d day of March 1824, by adjournment from the 1st day of the same month, he was duly chosen town clerk, and was during the meeting, and in presence thereof, duly sworn into office, and as such town clerk then and there received the warrant for that meeting and the last record book pertaining to that office, and that during the residue of the meeting, and ever since, he had officiated as such town clerk and still held the office ; and that Henry, the former. town clerk, being present at the meeting on the 2d of March, upon Taylor’s being so elected and sworn, voluntarily gave up to him the record book before mentioned ; but that there were in Henry’s possession a jury box, several books of records, the former warrants for town meetings, documents and vouchers pertaining to the office, and also the valuation and assessment lists lodged in the office by the assessors for the time being, which Henry unlawfully detained ; that he had on the 22d of March, and on the 3d of April, requested Henry to deliver them to him, but that Henry refused so to do ; wherefore he prayed that a writ of mandamus might issue, commanding Henry to deliver over to him the jury box, and other things before mentioned, pertaining to the office of the town clerk.</p> <p>Upon this petition it was ordered, that a rule of court should be served on Henry by leaving a copy of the petition with him, or at his last and usual place of abode, fourteen days before the term of this Court to be holden in the county of Hampshire for the counties of Hampshire, Franklin and Hampden, that he might appear and show cause why he refused to deliver up the jury box &c., or why a writ of mandamus should not be issued against him, commanding him to deliver them up to Taylor.</p> <p>Bates and Johnson now moved that the rule should be discharged ; and they contended, 1. that this Court, sitting in Hampshire as a court of law for the three counties of Hampshire, Franklin and Hampden, have not cognizance of this proceeding in the first instance ; and they referred to St, 1782, c. 9, § 1, 2 ; 1804, c. 105, § 5, 6 ; 1817, c. 63 ; 1820, c. 14 ; 1815, c. 107, § 3. It is manifest from these statutes, that the justice of this Court sitting in Hampden might have issued a mandamus, and consequently that the Court here have at this stage of the proceeding no jurisdiction over the case.</p> <p>2. This process is void, it not being under the seal of the Court and not having any teste ; which forms are required by St. 1782, c. 9, § 3, in all writs and processes of this Court, except in the case of a subpoena ad testificandum. [Parker C. J. This is not a writ' or process within the meaning of that statute. It is merely a rule to show cause. The respondent has a right to come into court or not. If he does not, then a writ issues.*]</p>

<p>Trespass de bonis asportatis. The defendants pleaded the general issue, and a special plea in justification, in which they set forth that they were assessors of the town of Granby in 1822, and that the goods in question were distrained under a warrant from them, to satisfy a tax which they bad assessed upon the plaintiff.</p> <p>The plaintiff claimed to he exempt from taxation, on the ground that he was regularly called and settled as the congregational minister of an unincorporated religious society in Granby, called the West Religious Society in Granby, and that as such minister he resided in Granby at the time when the tax was granted and assessed ; and in his surrejoinder he tendered an issue upon that fact, which was joined.</p> <p>At the trial, before Lincoln J., it was admitted, that the plaintiff was duly ordained a minister of the gospel at Mansfield, in Connecticut, in 1789, according to the forms and usages of the congregational churches ; that he was dismissed in 1796, in regular standing and with testimonials of recommendation as a Christian minister ; and that he was afterwards, in 1797, installed pastor of the church, and settled as a minister of the gospel, in Granby, where he has ever since resided. In January, 1821, a number of the inhabitants of Granby formed themselves into a religious society, by the name of the West Religious Society in Granby, and on the 26th of February, 1821, this society voted to give the plaintiff, who then continued minister of the congregational society in Granby over which he was installed in 1797, a call to settle with them. On the 27th the plaintiff accepted the call. On the 15th of the same February the church in Granby voted that they would be united with the new religious society. On the 3d of October following, the same church voted that it was expedient that there should be two churches instead of one, to be called the West Church and the East Church, and that the plaintiff should still retain his pastoral relation to the West Church, but not to the East Church;, and the plaintiff produced the result of an ecclesiastical council, dividing the church and erecting a West and an East church, without priority to either, the former to be composed of the members of the church who belonged to the West Religious Society. From August 1821, the plaintiff ceased to preach to the Congregational Society, but from that time he preached to the West Religious Society as their minister and pastor. He administered the ordinance of the communion to the whole church, until its division, and afterwards to the church which was constituted within the West Religious Society. By the terms of the plaintiff’s settlement with the Congregational Society, he had liberty to separate from them by giving six months’ previous notice of such intention, and he accordingly gave such notice on the 27th of February, 1821.</p> <p>Upon these facts the plaintiff contended, that after his separation from the Congregational Society in August 1821, and his connexion with the West Religious Society, and without any particular ceremony of ordination or installation over this last mentioned society, he remained exempt from taxation, as a settled minister of the gospel, according to the provisions )f the statute of 1821, c. 107, § 6.</p> <p>The defendants contended, that after the separation of the plaintiff from the Congregational Society by his voluntary act, pursuant to the terms of his settlement, he ceased to be a settled ordained minister of the gospel within the contemplation of the statute, and that his subsequent connexion with the West Religious Society, without installation or some equivalent religious ceremony, did not constitute such ministerial relation and character as would entitle him to exemption ,* and they introduced as witnesses the Rev. Nathan Perkins and the Rev. Joshua Crosby, ministers of the congregational order of Christians, who testified that it is the universal usage of the congregational churches and societies in Massachusetts, when a minister who has been once ordained is to form a pastoral relation with another people, to call an ecclesiastical council, who proceed by prayer and religious services in the same manner as in cases of ordination, with the omission only of the imposition of hands, the ordaining power having before conferred the right to preach, or the pastoral character, and the installation being a mere location of a minister over his people ; that they knew of no instance of the dissolution of the pastoral relation between the minister and his church, without the intervention of a council, and that it would be altogether irregular ; that the understanding is, that the ordination or installation is between the minister and the church, and where there is no church existing, there is no ceremony either of ordination or installation, except in the ordination of an evangelist.</p> <p>It was admitted by the defendants, that the members of .he West Religious Society filed in the office of the town cleric regular certificates of membership, before the tax in question was voted and assessed upon the plaintiff.</p> <p>The judge directed a verdict for the plaintiff, and if the Court should be of opinion that the plaintiff was a settled minister of the gospel, within the meaning of the statute, entitled to exemption from taxation in the town of Granby, at the time when the tax in question was granted and assessed, judgment was to be entered on the verdict; otherwise the verdict was to be set aside and the plaintiff to become nonsuit.</p>

<p>Where an officer, sued m trespass by a vendee of goods, contests the plaintiff's title on the ground of fraud, if he justifies under a writ of attachment against the vendor, he must show a debt against him 3 or a judgment, if he justifies under an execution.</p> <p>A sale made to defeat a claim which might be made under St. 1785, c. 66, § 2, for the maintenance of a bastard child, is fraudulent as against creditors. Semble.</p> <p>A sale made to defraud creditors is void as against subsequent creditors. Semble.</p>

<p>An information was filed by Davis, Solicitor-General, on behalf of the commonwealth, complaining that the justices of the Court of Sessions for the county of Hampden had neglected to cause a suitable house of correction to be erected or provided within that county, pursuant to St. 1787, c. 54, and praying that a writ of mandamus might issue commanding them to make such provision. At May term 1824, in Hampden, a rule was granted by this Court upon the justices of the Court of Sessions, to show cause why they had not provided a house of correction, and why the writ prayed for should not issue ; and at the following September teim in that county the justices of the Court of Sessions filed an answer to the information, in which (reserving all exceptions to the jurisdiction of this Court, and to the form and character of this process) they stated, that the county of Hampden was established in 1812 ; that from that time the Court of Sessions had made all reasonable efforts for providing suitable public buildings for the use of the county ; that in the purchase of land and erection of the gaol and the gaoler’s dwellinghouse they had expended about 15,000 dollars ; that in repairing the old court-house and in erecting the new one they had expended 10,000 dollars ; that in addition to these and other necessary expenses of the county, they had been obliged to expend large sums of money for rebuilding and supporting various bridges in Westfield, Chester and Palmer ; that to meet these expenses they had been obliged, not only to impose heavy taxes on the inhabitants of the county, but also to borrow large sums of money and incur heavy debts, which had not been wholly discharged until since the filing of the information ; that in August preceding they had ordered that a part of the common prison should be used for a house of correction, and had appointed a suitable master thereof; and they submitted, that in the exercise of the discretion of this Court, the youngest and one of the smallest counties in the commonwealth should not, at this time, be .subjected to the expense of providing or erecting a house of correction, when it was a matter of notoriety, that most of the older and larger counties were destitute of such houses ; and they therefore moved that the rule issued against them should1 be discharged.</p> <p>The Solicitor-General, in addition to the facts alleged in the information, and by way of replication to the answer of the respondents, stated that the common gaol in Hampden was wholly insufficient, and without any accommodations proper for the confinement and employment of such persons as' might be committed, either as proper subjects of a house of correction, or as convicts sentenced to hard labor by-judgment of this Court in pursuance of the statute in such case made and provided ; and he further alleged, that there was a balance in the treasury of the county, not appropriated, of 4165 dollars.</p> <p>At the hearing, before Lincoln J., the Solicitor-General admitted the truth of the facts stated in the respondents’ answer, and he produced witnesses who testified to the insufficiency of the gaol for the purposes of a house of correction. A certificate of the balance in the county treasury was also produced, by which it appeared, that of the 4165 dollars above mentioned, 3863 consisted in outstanding taxes.</p> <p>The judge reserved the question, whether a mandamus should issue, and all other questions arising upon the papers and facts proved, for the decision of the whole Court.</p> <p>And now the Solicitor-General, to show that the process of mandamus was proper in this case, referred to the preliminary remarks to the title Mandamus, in 4 Bac. Abr. 496, and letters D and E; and he contended that St. 1787, c. 54, § 1, was imperative on the Court of Sessions to provide a house of correction. He referred to the same statute, and those of 1797, c. 62, — 1802, c. 22, — and 1818, c. 123, as showing such houses to be distinct from common gaols m their general policy and course of discipline, and in the subjects to be confined in them ; and said that it was impossible to carry the provisions of these and some other statutes into effect in the county of Hampden, the part of the gaol appropriated as a house of correction being unsuitable and insufficient for that purpose.</p>

<p>The defendant pleaded in abatement of the writ, that at the time when it was put into the officer’s hands for service, and at the time when it was served, it contained no count or declaration ; and that no cause of action was in any way or manner therein set forth. To this plea there was a general demurrer.</p>

<p>Trespass quart clausum fregit. The supposed trespass consisted in cutting wood on the locus in quo. A trial was had at the April term, before Putnam J., upon the general issue.</p> <p>The plaintiffs claimed a title to the locus in quo, by virtue of the following vote of the proprietors of the township of Worcester, passed in 1733, viz. “ Voted, that 100 acres of the poorest land on Mill Stone hill be left common for the use of the town for building stones.” It was testified that the land was an immense quarry of stone ; that formerly there was but little wood on it, but that now there is a considerable quantity.</p> <p>The defendant claimed a title by virtue of a subsequent grant from the same proprietors to one Hayward. In 1761, John Flagg and Asa Chadwick, the grantees of Hayward, conveyed to Bezaleel Gleason, who in 1779 conveyed to David Chadwick.</p> <p>The plaintiffs produced the record of the case of Gleason v. Flagg et al., decided by the Superior Court of Judicature in 1763, from which they contended it appeared that Gleason was disseised, and so nothing passed by his deed to Chadwick.</p> <p>Each party also produced evidence to show a title by possession.</p> <p>A verdict was taken for the plaintiffs, subject to the opinion of the whole Court.</p>

<p>At a Court of Sessions held on the 2d Tuesday of September, 1823, Appleton petitioned that a jury might be granted him, to estimate the damages sustained by him in consequence of a road’s having been laid out over his land by the Barre Turnpike Corporation ; upon which it was ordered, that notice should be given to the corporation to appear at an adjournment in November, to show cause why the petition should not be granted. Notice was given accordingly, but the corporation did not appear, but made default. The court thereupon ordered the clerk to issue a warrant to the sheriff, or his deputy, to summon and impannel a jury, and to make return of his doings, together with the verdict, in March, 1824. The warrant was issued, served, and returned accordingly.</p> <p>Upon a hearing of the parties before the court, in March, it was proved,- or admitted, that the corporation appeared before the jury, and, before the jury was impannelled, verbally objected to proceeding in the case, because they had not seasonable notice of the time and place appointed for impannelling the jury ; and also, because the jury was summoned, and was about to be empannelled, by Luther Clifford, a deputy sheriff, and not a coroner, when at the same time Moses Holden, another deputy of the same sheriff, was a member of the corporation, (which was the fact,) and interested in the proceedings. There was evidence, that when the first objection was made the counsel for Appleton offered to have an adjournment, and that the counsel for the corporation attended to the trial, and did not request an adjournment or delay for further preparation ; but no evidence was given of any express waiver of the objection. These same objections w.ere made verbally before the court, but they were overruled, and it was ordered that the verdict should be accepted and recorded. Whereupon the corporation filed their bill of exceptions ; and at the April term 1824, of this Court, they presented this petition, praying that on account óf these objections a certiorari might go to the Court of Sessions.</p>

<p>A warning under St. 4 Will, fy Mar. c. 13, to avoid the gaining of a settlement by a pauper, was held not to be proved by a record of the Court of Sessions, staling that tl the selectmen of U. were allowed to enter their caution against C. whom they refuse to admit an inhabitant, he having been duly warned, as by a warrant &c. and return thereon, on file, appears,” although the warrant and return were lost) such act of the Court of Sessions being merely ministerial.</p> <p>Whether such record would have been sufficient evidence, if it had set forth particularly the necessary facts, quaere.</p>

<p>This was an action of assumpsit brought by the under-keeper of the gaol' in Worcester to recover the expense of boarding one Parker, a poor debtor confined in close prison. In a case stated it appeared, that after an execution against Parker in favor of Mallard had been returned with a non est inventus, and after a scire facias had been sued out against Parker’s bail, but before final judgment thereon, the bail committed him to gaol in Worcester, conformably to the provisions of St. 1817, c. 146 ; that Parker having claimed relief as a pauper, the plaintiif called on the attorney of the defendant and demanded of him money or security for the board of Parker, and that the attorney refused to give security or advanee any money, and said that the defendant would not do either ; that the plaintiff kept Parker imprisoned for the term of time mentioned in the writ, and charged for his board af the rate of one dollar and twenty-five cents a week.</p> <p>The plaintiff’s demand was founded on St. 1821, c. 22. which provides, that when any person confined in close prison on mesne process or execution shall claim relief as a pauper, the keeper of the prison shall furnish relief and support to him at the expense of the creditor, and that no town shall hereafter be liable for the support of any poor debtor confined in the manner above mentioned.</p>

<p>Where a person, having as administrator attached real estate, was appointed by the debtor to appraise the same real estate when set off on the execution of a previously attaching creditor, it was held that neither the debtor nor subsequently attaching creditors could object that he was interested.</p> <p>An officer returned on an execution against a tenant in common, that he had delivered seisin of “5 acres and 100 rods of land of an average value, lying in common and undivided with J. B. in a farm &c., containing 122 acres, and an equal proportion of the buildings thereon standing, said farm bounded” &c., and the extent was sustained.</p> <p>When the quantity of land stated to be appraised and set off on several executions, exceeds the quantity contained in the whole tract, the extents are not therefore irregular, but the creditor whose execution is extended last only takes what remains after the previous extents.</p>

<p>Where, upon the commitment of a debtor on an execution then in force, a copy was left with the gaoler, from which the execution seemed not to be in force, and upon a habeas corpus the gaoler returned this copy as the cause of detention, but immediately afterwards a correct copy was left with him and he then returned (ms ¿as copy, the Court refused to discharge the debtor.</p> <p>Upon such commitment it is necessary that a copy of the execution be left with the gaoler. Semble.</p>

The plaintiff declared in debt upon a judgment recovered before a justice of the peace for the county of Windham in Connecticut, with a profert of a copy of the record duly authenticated. The defendant pleaded nil debet; to which there was a general demurrer and joinder.

This was an action of covenant broken. The plaintiffs, as overseers of the poor of the town of Phillipston, declared on an indenture made between a former board of overseers, who were such by virtue of their holding the office of selectmen, and who in the indenture were only called selectmen, and the defendant, whereby one Amos B. Jones, a minoi and a poor person, was bound as an apprentice to the defendant from the date of the indenture in 1817 to 1832, to learn the trade…

<p>A testator, after bequeathing a legacy to his wife, gave all the “ residue and remainder” of his estate to his children, A, B, C, &c., expressly providing that whatever should fall to the share of A should be deposited by his executor in the hands of B and C, and be retained by them and dealt out to A for his comfort and advantage, and authorizing his executor to sell all or any part of his land for the interest of his heirs. Held, that the legal estate of A's share of the land vested in B and C, subject to the power to sell, and that a sale under the power avoided the estate, if any, acquired by a creditor of A under an attachment and levy.</p>

This was an action on the case for a disturbance of a right of way over Concord river, at Billerica, by throwing down the abutment of a bridge which the plaintiff had rebuilt. A verdict was taken for the plaintiff at October term 1821, subject to the opinion of the Court upon the facts which were to be reported by the judge who tried the cause.

<p>This case came before the Court upon an agreed statement of facts.</p> <p>On- the 3d of January 1797, James Richardson, the defendants’ testator, made his last will, containing this provision : “ I give and bequeath to Mary Childs, my niece &c., the interest of 1000 dollars to be paid her annually during her life &c., without any intermeddling of her said husband therewith &c., and at her decease I give and bequeath the said principal sum to be equally divided among her children and payable to them at the respective ages of twenty-one years with interest.”</p> <p>The testator died in 1799, and Mary Childs in 1819. She had eight children, all of whom were living at the testator’s decease. Her son, John Childs, the plaintiff’s intestate, died oefore her, after having arrived at the age of twenty-one years.</p> <p>The question to be determined by the Court was, whether John Childs took a vested legacy, or whether the legacy was contingent, depending on his surviving his mother.</p>

<p>Trespass for mesne profits. A trial was had upon the general issue, at March term 1822, before Wilde J., when the following facts appeared in the case.</p> <p>The plaintiff having recovered a judgment against the administrators de bonis non of the estate of John Harris, deceased, levied his execution on the 30th of March, 1818, upon real estate, consisting of part of a store in Charlestown, then in the possession of J. and J. H. Brown, under a purchase from the same administrators. Before the plaintiff levied his execution, William Thompson, the father of the defendants, had recovered judgment for the premises in a writ of entry sur disseisin against the Browns, * and on the 8th of May, 1818, he executed his habere facias seisinam and expelled the Browns, who were then in possession under a lease which the plaintiff had made to them immediately after his levy.</p> <p>William Thompson, the elder, died on the 16th of November, 1818, and the defendants were his heirs at law. On the 20th of May, 1819, William Thompson, the defendant, in his capacity of administrator upon his father’s estate, leased the premises in question for one year ; and it did not appear that he, or any other of the defendants, had at any time before entered upon the premises, after the death of their ancestor.</p> <p>On the 21st of May, 1819, the plaintiff brought his action against the defendants, for the premises, in which he declared as follows : — “In a plea of ejectment, wherein the plaintiff demands against the defendants seisin and possession of, &c., into which the said defendants have not entry but by William Thompson &c. deceased, who thereof unjustly disseised the plaintiff, and from whom the same descended to the defendants, and saith that he the said Emerson was seised of, &c., in his demesne as of fee, &c., within thirty years last past, &c., and was unjustly disseised thereof by the said William Thompson deceased, from whom the same descended to the defendants, who still unjustly withhold the same from the plaintiff.” To this the defendants pleaded, “ that they never disseised in manner and form,” &c. Upon this issue, the plaintiff obtained a verdict and judgment, and on the 17th of April, 1821, had his writ of seisin duly executed.</p> <p>The counsel for the plaintiff, upon this evidence, contended that he was entitled to a judgment for the mesne profits from the levy of his execution, or at least from the death of Thompson the father; but the jury were instructed to compute the damages from the 21st of May, 1819, the time when the plaintiff commenced his suit for the recovery of the premises ; and they found a verdict accordingly, assessing the damages at 200 dollars per annum. It was agreed by the parties, that if the Court should be of opinion that the plaintiff was entitled to damages for any rents and profits previous to the 21st of May, 1819, the verdict should be altered so as t) conform to such opinion.</p> <p>The cause was first argued at the bar, at October term 1822.</p>

<p>Trespass for mesne profits. The only question was, whether the defendant was entitled to any allowance out of the rents and profits, on account of a well which he repaired by digging it deeper, and stoning it anew, whilst the premises were in his possession. This work was done in the autumn of 1819. The action of the plaintiff against the defendant for the recovery of the land was commenced on the 14th of June, 1819, and he obtained judgment for his seisin on the 2d of November, 1819, and took possession, by force of an habere facias, on the 2d of February, 1820.</p> <p>The cause was tried at October term 1822, before Jackson J., who instructed the jury, that the defendant was not entitled to any allowance on account of the repairs, and the verdict was returned accordingly. Whereupon the defendant moved for a new trial on account of this direction.</p> <p>The Chief Justice, at the opening of the argument, remarked that in a late case in Suffolk it had been held, that a mortgagee in possession could not have an allowance for making any thing new upon the mortgaged premises, but only for keeping them in repair.</p>

<p>A trust estate cannot be extended on by a creditor of the cestui que trust.</p>

<p>This was an action of trover for a quantity of wool. The trial was on the general issue.</p> <p>The wool was formerly the property of the plaintiff, and was delivered by him, at two different times, to Seth King, who carried on a manufactory of woollen cloths. The first parcel was delivered on the 9th of October, 1821, on the terms expressed in the following receipt, given by King to the plaintiff, viz. “ Received of Nathan Barrett junior 52 pounds of wool to manufacture into cloth on the following conditions, viz. the wool is to be reckoned at 75 cents per pound, amounting to 391 dollars, 12 cents, which amount I agree to pay in six months ; the wool, before manufactured, after being manufactured, or in any stage of manufacturing, to be the property of said Barrett, until the above amount is paid.” The other parcel was delivered on the 10th of June, 1822, on a similar agreement.</p> <p>It appeared that the wool received into the manufactory from different persons was usually kept separate, one parcel from another, during the process of manufacturing ; and that none of the parcels delivered by the plaintiff had been manufactured when it was taken by the defendant.</p> <p>On the 21st of June, 1822, King assigned and conveyed to the defendant and one Brown certain goods in the manufactory, to secure certain debts to the defendant and others, and about the same time the defendant took by attachment or otherwise certain other goods then in King’s house. The goods thus assigned and taken included the wool in question.</p> <p>The plaintiff, in order to show that King had not obtained a false credit with the defendant in consequence of this dealing with the plaintiff, produced evidence tending to prove that the transaction was known to the defendant, and that it was according to King’s usual course of business , but this point was not submitted to the jury.</p> <p>A verdict was taken for the plaintiff. If the Court should be of opinion that the property in the wool passed to King, or that the wool was liable to be attached and taken for his debts in June 1822, the verdict was to be set aside and a verdict was to be entered for the defendant.</p>

<p>This case came before the Court upon a statement of facts.</p> <p>The plaintiff and her husband, Theodore Peabody, in 1807, conveyed land held by them in fee in her right to the Trustees of Westford Academy in mortgage ; and the Trustees, on the 2d of May, 1821, assigned the same to the defendant. The equity of redemption was attached by one Wright and others, creditors of the husband, and on the 31st of October, 1820, was sold to the defendant by virtue of an execution in favor of Wright. Theodore Peabody died in January 1821. The defendant, in September 1821, recovered judgment on the mortgage deed against the plaintiff, and on the 22d of November, 1821, he entered upon the land by virtue of a writ of possession. On the 24th of August, 1822, the plaintiff tendered him the sum due on the mortgage for the redemption of the land, but the defendant refused to convey the land for that sum, claiming in addition the amount paid by him for the equity of redemption.</p> <p>If upon these facts the plaintiff was entitled to redeem by paying the sum due on the mortgage, the Court were to decree a redemption on payment of that sum; but if not, the bill in equity was to be dismissed.</p>

<p>Where the jury in a capital trial cannot agree on a verdict, the court have discretionary power to discharge them, and the prisoner may be put upon his trial before another jury.</p> <p>Thus, upon a trial for murder, the jury, after having been out eighteen hours without being able to agree on a verdict, relumed into court, and it appearing that further deliberation would have no tendency to make them agree, they were discharged of the cause. The prisoner was afterwards tried on the same indictment, before a new jury, and convicted of manslaughter, and it was held a good conviction.</p>

<p>An action of debt for a penally for culling and carrying away the plaintiff’s trees, contrary to St. 1817, c. 173, abates by the death of the plaintiff.</p>

<p>The plaintiff having appealed from a judgment on a fictitious demurrer, obtained a verdict for a sum less than 100 dollars, and judgment was afterwards rendered on such sum with interest’ for more than 100 dollars. Held, that the plaintiff should . have his costs in the court below, and the defendant his costs on the appeal.</p>

<p>This was an action on the case against the defendant as sheriff, for an alleged default of Joseph Hunnewell, one of his deputies. A verdict was taken for the plaintiff, subject to the opinion of the Court.</p> <p>In 1812 John Hardy conveyed certain land to the State Bank in mortgage. On the 1st of May, 1820, John Gardner attached the equity of redemption. On the 27th Hardy mortgaged the same land to Thomas Clark. On the 30th of January, 1821, William Foster attached all Hardy’s interest in the land, and afterwards on the same day the plaintiff caused a like attachment to be made by Joseph Parker, another deputy of the defendant.</p> <p>All these attaching creditors recovered judgment against Hardy, and Gardner delivered his execution to Hunnewell within thirty days after his judgment, by force of which Hunnewell seized the right of redemption and sold it on the 28th of March, 1821, for 700 dollars, to Thomas Clark, and immediately paid to Gardner the amount due on his execution. After the sale, and before Hunnewell had paid over the balance of the proceeds, the executions of Foster and of the plaintiff were delivered to him, with directions to satisfy them out of the proceeds, and with information that Foster’s attachment was prior to the plaintiff’s. Hunnewell however returned both executions in no part satisfied, and afterwards ir October 1821, with the consent of Hardy, he paid over the balance mentioned, to Thomas Clark. After these returns, but at what particular time it did not appear, the debt due to Foster was discharged by Hardy.</p> <p>At the time of the sale the amount due on the mortgage to the bank was 474 dollars, 75 cents — on Gardner’s execution with costs of levying, 265 dollars — on the mortgage to Clark, 525 dollars — and on Foster’s execution, 299 dollars, 71 cents ; — making in the whole 1564 dollars, 46 cents. The whole value of the estate, if sold on the terms that the purchaser should pay part of the purchase money in discharge of the debt due to the bank and the residue to the officer, was 1556 dollars, 25 cents. The amount due on the plaintiff’s execution was 102 dollars, 48 cents.</p> <p>If on these facts the plaintiff was not entitled to recover, he was to be nonsuited.</p>

<p>Assumpsit. The plaintiffs alleged that the defendant and his deceased partner were their bailiffs and receivers of a quantity of cotton goods to ship to Washington (N. C.) for account and risk of the plaintiffs, and that they promised to account therefor on demand. On the trial upon the genera, issue, before Wilde J., the defendant offered in evidence the letters of one King, to whom he had sent the goods and who had sold them, to prove that, the defendant and his late partner had used due diligence to collect the proceeds of the sale, and for other purposes ; and it was alleged that King was dead. The judge rejected these letters, and a verdict being found for the plaintiffs, the defendant filed his exceptions to this decision.</p> <p>Stearns, in support of the exceptions, contended that King, if he were living, would be a competent witness, and that as he was dead at the time of the trial, his letters were admissible, as being the best evidence remaining, and that they were admissible also on the ground of their containing an admission against bis interest, of his own liability. On this last point he cited 1 Phil. Ev. 191 ; Stead v. Heaton, 4 T. R. 669 ; Barry v. Bebbington, ibid. 514 ; Higham v. Ridgeway, 10 East, 109 ; Warren d. Webb v. Greenville, 2 Str. 1129 ; 3 Wooddes. 332 ; 12 Vin. Abr. 90, tit. Evidence, pl. 13 ; Haddow v. Parry, 3 Taunt. 305.</p>

Assumpsit for expenses incurred by the plaintiffs in the support of some paupers, who derived their settlement from William Pearson. Pearson resided in Tewksbury for more than ten years after the passing of St. 1793, c. 34, and the plaintiffs alleged that he gained a settlement there by reason of his being a person who ought to have been taxed for five of those years.

Assumpsit for expenses incurred in the support of three paupers, two of them children and the third a grandchild of Samuel Bemis, from whom their settlement was derived.

Assumpsit to recover toll. The parties agreed that the defendant, who was a farmer, owned, among other lands, a lot situated upon one side of the Medford Turnpike road, which he used for mowing, gardening, pasturing and tillage ; that in the years 1822 and 1823, in addition to such cultivation, he made bricks for sale, on a part of it, from clay dug in the lot; and that the toll demanded of him was for carting loads of wood from a wharf in Charlestown over part of the…

This was a bill in equity under St. 1821, c. 85, § 1, which provides, that when any mortgager &c. shall bring his bill in equity for the redemption of the land mortgaged, within three years next after the mortgagee &c. shall have obtained actual possession thereof for the condition broken, and “ shall in his bill offer to pay such sum as shall be found justly and equitably due, or to perform such other condition as the case may require, such offer shall have the like force…

This was a bill in equity to redeem, brought by the as signee of an equity of redemption against the assignee of the mortgage, and was founded upon the same statute as the bill in the last case.

The error complained of was supposed to be in the judgment rendered by that court, at January term 1823, upon the report of a viewing committee, appointed on the petition of Sawin and others for a highway in the town of Natick.

The prisoners were indicted for the murder of Francis L. Lloyd. The indictment alleged that they gave the deceased a mortal bruise on the 12th of May, 1823, in Boston, in the county of Suffolk, and that he died on the 15th, in Cambridge, in the county of Middlesex. The prisoners were set to the bar to he tried at March term 1824, at Concord, but the jury not being able to agree, the cause was taken from them and continued to this term.

Trespass quare clausum fregit. Plea, soil and freehold in the defendant. At the trial, before Putnam J., the defendant claimed under a deed from Thomas Bassett, dated June 5th, 1821. The plaintiff claimed under a levy of an execution against the same Thomas Bassett, pursuant to an attachment made on the 4th of June. The defendant objected to the levy, that it did not appear that the appraisers went upon the land, in order to ascertain its value.

<p>An administrator cannot revive a debt due to himself from the intestate, which at the time of the intestate's decease was barred by the statute of limitations.</p> <p>An administrator who had made advances to the intestate in his lifetime, and since his decease had paid debts out of his own funds, and had rendered no account until after four years from the time of his taking out letters of administration, the delay having been occasioned in part by an attempt to collect a debt in South Carolina, had leave to sell real estate to reimburse himself, the application for license to sell having been made not long after the expiration of the four years, and the real estate having remained as it was at the decease of the intestate, without any partition among heirs or any conveyance.</p> <p>Interest for eighteen months was allowed on such administrator's private account, it being considered that the estate might reasonably have been settled within that period.</p>

Assumpsit. The action was brought originally before the Court of Common Pleas and was referred under a rule, in which it was agreed that the judgment of that court upon the report of the referees should be final. The same court having ordered such report to be accepted, the defendant filed his exceptions to that direction.

The following facts appeared in a case stated. Eliphalet Leach was born in 1786, in that part of Bridge-water which by St. 1821, c. 12, was established as a separate town by the name of North Bridgewater. Nathan Leach, the father of Eliphalet, had his original settlement in the part which is now Bridgewater.

<p>Exceptions will He to a judgment rendered by the Court of Common Pleas upon a report of referees appointed under a rule of that court, in an action brought originally before a justice of the peace.</p>

<p>In this action, which was case for the disturbance of an alleged right of way, it was agreed by the parties, that if upon the following statement of facts the Court should be of opinion that the plaintiff could recover, judgment should be rendered in her favor for five dollars and costs ; if otherwise, that she should become nonsuit and the defendant should recover costs. ,</p> <p>Thomas Jackson senior was the owner of a parcel of land (represented in the note) * fronting on a highway about 117 feet and running back 300 feet, which was taken in execution by his creditors.</p> <p>On the 10th of May, 1813, Samuel Robbins levied on a part n the rear marked A. On the next day Daniel and Charles Jackson, whose estate the defendant represents, levied on a part marked B, fronting on the highway about 66 feet, and on this part stood the house and out-buildings of Thomas Jackson, the judgment debtor. In this levy there was a reservation to the judgment debtor of “ a right of a ten foot way through gates and bars in common with said Daniel and Charles, for the use of going to and returning from the said Thomas’s land lying north of the above described lot, adjoining the same.” On the 17th of the same May, Elizabeth Cooper levied on the remaining front, C, and on the 11th of September following Henry Warren levied on D. On the 30th of August, 1816, Zaccheus Bartlett levied on E and F. ' The remaining small piece, G, was subsequently conveyed by the judgment debtor to N. M. Davis, and by him to those whose estate the defendant represents. That estate was added to in June 1819, by the purchase of a slip eight feet wide adjoining the south westerly side of B, and running the whole length of C and D. The deed of it was given by Warren, who then owned C as well as D, and contained a warranty against all incumbrances. The slip thus purchased, together with two feet of B, was fenced off by the defendant as a way, from the rear until it reached the yard appurtenant to the house of the judgment debtor, and at the end which borders on the street a convenient gate way for carts and carriages has been erected by the defendant. In the parcel marked C there was at the time of Mrs. Cooper’s levy a gate way for carriages 12 feet wide, used by the judgment debtor as the avenue to his barn and the land in the rear. A house has been erected on that parcel, since the levy, about 23 feet westerly of the 8 feet strip before mentioned, and the occupant of this house has erected a gate for carriages, standing side by side with the gate erected by the defendant at the end of the 8 feet strip, and nearly on the same spot where the old gate used by the judgment debtor stood.</p> <p>In May 1819, the plaintiff purchased of Bartlett the parcel marked E adjoining her own land marked H, and the deed contains a clause of warranty of a right of way over the land which had been extended on. At the time of the sale Bartlett had no access to the parcel marked E, unless a right of way resulted by virtue of his levy, over some of the land which had been extended on ; and the plaintiff might now lay out a sufficient way from E over her own land to the highway.</p>

Assumpsit. The plaintiffs declared specially upon a subscription paper containing the following words, viz. “We the subscribers being desirous that the academy edifice should be rebuilt immediately, do hereby promise to pay to the committee which may be chosen by the trustees of the Bridgewater academy, for the purpose of rebuilding the same, the several sums of money, materials or labor for the above Durpose, which shall be set against our names. 4th Feb. 1822.” This paper…

<p>A partial payment made on a note by the principal promisor, will take the debt out of the statute of limitations as to the surety.</p> <p>Mere delay of the creditor to proceed against the principal, without some contract binding him not to proceed against him or a request by the surety that he would en force the demand, will not discharge the surety.</p> <p>Where upon a promissory note, payable on demand, signed by a principal and surety, with witnesses, payments were made by the principal from time to time for twenty years, during the last twelve of which he was reputed to be insolvent, and the holder always at his request allowed him further time, but not any fixed time, for making further payments, and the surety had received no notice, until just before the commencement of the suit, that the note had not been paid, the surety was nevertheless held liable, it being the business of the surety to see that the principal pays.</p>

The first of these actions was assumpsit upon a promissory note, dated the 3d of April, 1821, payable by the defendant to the plaintiff Bayley, in six months, with interest. At the trial, which was upon the general issue, the defendant attempted to prove that the note was given without any consideration.

Assumpsit. In the Court of Common Pleas the defendant pleaded the general issue. The plaintiff demurred, with liberty to waive his demurrer, and a judgment was entered from which there was an appeal. At the May term 1823, of this Court, the counsel for the defendant moved that the action should be dismissed, because the writ bore test in the name of John M. Williams, he not being the first justice of the Court of Common Pleas who was not a party to the suit.

This was a petition for a certiorari to a justice of the peace, who had sentenced Bayley, the petitioner, to pay a fine for neglecting to appear at a muster of a company of militia, in Scituate, on the 20th of October, 1823.

<p>H and G, the owners of a vessel and cargo bound to a foreign port, gave orders to the master to sell both the vessel and cargo and to remit the proceeds. After the vessel had sailed H assigned his part of her and all his interest in the cargo to B, one of his creditors. The master sold the vessel and most of the cargo and remitted part of the proceeds. The residue he brought home with him invested in dollars and bullion. Immediately upon his return he was summoned as the trustee of H. in a process of foreign attachment sued out by G. The master while abroad had received letters from H and B informing him of PTs failure and of the assignments above mentioned, and after the service of the trustee process B showed him the bill of sale of H’s part of the vessel, and the assignment, which was indorsed on the invoice; of H's interest in the cargo. Only one bill of lading was left by the master, and that was in the hands of G. Held, that H having no bill of lading, the delivery of the invoice to B, with the assignment indorsed, was a symbolical delivery of B's part of the cargo, and that the master was not liable as his trustee.</p>

<p>Action on the case for slander. The defendant pleaded, 1st, the general „ issue; 2dly, that the action did not accrue within two years. To this second plea the plaintiff replied in the manner stated in the opinion of the Court, and the defendant demurred generally.</p> <p>Harrington, at this term, spoke in support of the demurrer, and Hastings, in the vacation, furnished a written argument on the other side.</p>

<p>A debtor made a bill of .sale to his creditor, of machines in a manufactory, on condition to be void on payment of a sum of money and the vendee took possession by putting his hands on each piece of machinery. The vendee then made a lease of the machines to the vendor and delivered them to him. Held, that this bill of sale was a mortgage, and that the possession of the vendor after the sale was only prima facie evidence of fraud, which might be rebutted by evidence showing the transaction to have been bond fide.</p>

<p>In an action by a sheriff against the sureties in a bond, conditioned that the principal should faithfully perform the duties of a deputy sheriff and should save the plaintiff harmless from all suits, costs, expenses &c., occasioned by the misconduct of such deputy, it is not a good plea, that before the breach complained of they gave notice to the plaintiff of the deputy's unfitness for office and requested his removal.</p>

This was assumpsit upon an undertaking of the defendant to carry two boxes of marble and one box of granite from Salem to Norfolk and a market.

Chickering and Sweetser, who were summoned as trustees, disclosed in their answers the following facts. On the 13th of March, 1824, Edwards gave them a bill of sale of the brig Margaret, in common form.

<p>A testator devised the residuum of his estate, both real and personal, to his son, his heirs and assigns, on condition that he should pay all the testator's debts, funeral charges and bequests, and should also support the testator's daughter. The son was appointed executor and took upon himself that trust. He entered upon the real estate, conveyed part of it in mortgage, supported the daughter during his life, and died insolvent Held, that the provision in favor of the daughter was a legacy, and that she might maintain an action for it against the administrator de bonis non of the testator, notwithstanding she might have another remedy by entry for non-performance of the condition.</p>

This was an action on the case for an injury done to the plaintiff’s horse by a wood-pile, which the defendant had placed in the highway. At the trial, before Putnam, J., it appeared, that the horse was harnessed to a wagon loaded with two barrels filled with cider, and two others which were only about two thirds 'full. There was no shaft girth to the wagon ; there were breech hooks and lug hooks to the shafts, and there was a crupper to the saddle.

This was a writ of error to reverse a judgment rendered by the Court of Common Pleas, upon the acceptance of a report of referees, to whom the parties had submitted their dispute by an agreement entered into before a justice of the peace, pursuant to St. 1786, c. 21.