Volume 2 — Massachusetts Reports

<p>A wager policy is not a valid contract, semble.</p> <p>[Where a policy contained a clause providing that the underwriters should be discharged in case the same property should be insured wholly by any prior policy, and also a c..ause providing that for so much as was insured on the cargo the policy should be deemed sufficient proof of interest, and that no part of the premium on the same should be returned for want of interest, and the assured had received the full amount of all his interest in the cargo from the underwriters upon a prior policy, deducting a pro rata premium, — held, that he was not entitled to recover any thing upon the last policy.]</p>

<p>Goods are stolen in New Hampshire, and brought into tills state: indictment lies against the receiver of them here.</p> <p>Receiver of stolen goods sentenced to pay the treble value.</p>

<p>The question in these actions was, whether Tuckerman could be held as the trustee of Healy, by force of the statute of this com monwealth, passed February 28, 1795, entitled, “An Act to enable creditors to receive their just demands out of the goods, effects, and credits, of their debtors, when the same cannot be attached by the ordinary process of law.” The facts appear, in Tuckerman’s answer to the usual interrogatory, as follows: —</p> <p>The said Tuckerman makes answer that, on the 5th day of January, A. D. 1797, Amasa Penniman made his note of hand of that date, whereby he promised the said Tuckerman to pay him, or order, 1075 dollars, in sixty days after date, with interest after; which note said Tuckerman endorsed to William Healy, and the said Healy endorsed the same to John Haskins. That, on the 1st day of August, 1801, said Healy sued said Tuckerman, in which suit said Healy set forth, in his declaration, that he had paid said Haskins (who was the last endorsee) the amount of said note. That action was tried at the Supreme Judicial Court at Boston, March term, 1804, and a verdict was obtained against said Tuckerman for 1528 dollars and 29 cents. That, before the said verdict was obtained against him, viz., on the 13th day of December, 1803, the said Tuckerman was summoned as the trustee of the said Healy, at suit of Asa Nichols ; and also before the said verdict was obtained aforesaid, viz., on the 11th day of January, 1804, the said Tucker-man was summoned as trustee of said Healy, at the suit of Oliver W. Champney. That, after the said verdict was obtained as aforesaid, and before judgment was rendered thereon, viz., on the 15th day of March, 1804, the said Tuckerman was summoned, as the trustee of the said Healy, at the suit of James Eunson. The said action of Healy vs. Tuckerman has been continued from term to term, and no judgment has yet been rendered on the said [ * 33 ] * verdict, by reason of the said Tuckerman’s being so summoned, as aforesaid. Upon the foregoing statement of facts, the said Tuckerman submits himself,” &c.</p>

Error on a judgment of the Court of Common Pleas for this tounty, in January, 1798. The original writ, on which that judgment was founded, was served in June, 1795, by leaving an attested copy at the last and usual place of abode of Skipwith, the original defendant, and by summoning a number of persons as his trustees. Skipwith never appeared in the action, and in July, 1797, was defaulted.

<p>This was an action of assumpsit, and was tried the first week ot this term before the three justices, Sedgwick, Thatcher, and Parker. A paper was offered in evidence to the jury, by the defendant’s counsel, which was objected to by the counsel for the plaintiff.</p>

This was an action of assumpsit, in which the plaintiffs set forth their charter of incorporation from the state of New York; sundry assessments made, in pursuance of the charter, upon the stockholders, of which the defendant was one; and his undertaking and promise to pay the amount of those assessments. The New England Marine Insurance Company were summoned, as trustees of the defendant, by a service on Peleg Coffin, Esq., their then president.

<p>This was an action of assumpsit for a seaman’s wages, in which the following facts were agreed in a case stated for the opinion of the Court, viz.: Brooks, about the 12th November, 1799, shipped as mate on board the ship Ariadne, Le Bosquet, master, owned bj Messrs. Joseph and John Dorr, the original defendants, for a voyage from Boston to Charleston, S. C., thence to London, and thence to her port of discharge in the United States, for the monthly wages of 30 dollars per month. The ship arrived at Charleston in ballast, there took in a cargo on freight for London, and on the 12th of March, 1800, on her passage for London, was taken by a French privateer. Broolcs, and some other seamen, at the time of the capture, were taken out of the ship on board the privateer, and carried into France as prisoners, where Brooks was detained until the 12th of May following, when he was released; and he then, as soon as he could, returned to Boston, where he arrived on the 12th of July, 1800. The ship was carried by the captors into St Andero, in Spain, and there detained until the 10th of December, [ * 40 ] 1800. She was then restored, * and delivered to Capt. Le B., who hired seamen, with whom, and with two of his original crew, who had continued on board the ship, he proceeded to London, the original port of destination. He arrived there on the 13th of June, 1801, delivered his cargo, and received his full freight money. The ship and freight were insured at a premium of 7£ per cent., and, upon receiving intelligence of the capture, the owners abandoned to the underwriters on the 12th of June, 1800, and, on the 1st of November following, received as for a total loss. The assurers took possession of the ship in London, where she was sold by their agent on the 12th of July, 1801, and the seamen on board were, on the same day, paid off and discharged, When the voyage was settled between the assurers and their agents at London, a balance of £120 sterling remained in the hands of the agent. This sum was paid to Capt. Le B. generally, but not specially, for the use of Brooks, nor has he demanded, or ever received, any part of the sum — Capt. Le B. alleging that much more than this sum is due to himself for wages and services. Brooks has received 30 dollars, advance wages, 9 dollars 57 cents in Charleston, and 20 dollars in France; and he now demands, of the owners, the balance of his wages, to be computed from the 12th of November, 1799, the time of his shipment, to the 12th of July, 1800, the time of his arrival at Boston, at the rate of 30 dollars per month. Upon these facts, the Court are to decide what sum, if iny, is due to the plaintiff, and the defendants are to confess judgment for such sum; if the Court decide that nothing is due to the plaintiff, then he is to become nonsuit, and costs allowed the defendants.</p>

<p>This was an action of assault and battery, brought by a mariner against the master of the ship. The declaration contained several counts, reciting as many distinct injuries. Upon the general issue, pleaded at last March term, there was a verdict for the plaintiff for 755 dollars damage; upon which the counsel for the defendant moved in arrest of judgment, because the plaintiff, in the third count of his declaration, has charged the assault and battery, therein complained of, with a continuando ; and the jury have rendered a general verdict for the plaintiff, with entire damages for all the matters complained of in the declaration.</p> <p>The third count, to which the exception was taken, alleged that the defendant, on such a day, at such a place, with force and arms, did make an assault on the plaintiff, and, making fast his body in an inclining posture over a large water-cask, did beat, bruise, and wound him, with a large piece of three inch plank, by means whereof he was lacerated and maimed, and there afterwards, (he said. Benjamin, continuing his assault, last aforesaid, on the body of the said Benson, with force and arms, to wit, with four parts of a two inch and a half rope, did beat, bruise, &c.</p> <p>* On the part of the defendant, it was argued that an [ *51 j assault is one entire and individual act, and the same assault cannot be committed at divers times. The declaration, in this case, is not so well as if laid diversis diebus et vicibus, as it was in Michell vs. Neale, (1) where judgment was rendered for the defendant. Where the act is of such a nature as that it may be performed at several times, there it may be laid with a continuando; but where the act must be done all at one time, and terminates in itself, as an assault, it cannot. (2) This objection may as well be made in arrest of judgment as upon demurrer. (3)</p> <p>One of the Court, inquiring if no authorities to the point could be ■sited from more modern books, was answered that the point was early so well settled as to furnish a fair presumption that the same error has not occurred in later times.</p> <p>There being no limit assigned to the time of this trespass, its continuance is implied up to the commencement of the action. Ilovt' could the defendant be prepared to answer to such a charge ? In fact, this count describes two several trespasses, with two distinct instruments. It cannot be known what part of the damages were given for that part of the trespass which is ill alleged, perhaps the whole.</p> <p>On the other side, it was said that the trespass is alleged to hate been committed on a day certain ; whereas a continuando always includes several days. But if this is within the technical idea of a continuando, and if a trespass of this kind does not lie in continuance, the Court will intend that no part of the damages was given for it. (4) The case in Cowper, 828, shows that advantage must be taken of this defect, if there is any, upon special demurrer. Courts are more liberal in modern times than formerly, and many faults in pleading, heretofore held fatal, are now cured by verdict.</p> <p>For the defendant, in reply. Afterwards certainly means at another and subsequent time. And should it be yielded that this whole transaction is laid, in this third count, as having [ *58 ] taken * place in one day, still, as several assaults may be committed in one day, some of which shall be justifiable, and some not, this is, in strictness, declaring with a continuando, and liable to all the objections which have been urged. Is this fault cured by the verdict ? Where, in the same count, some things are laid with a continuando, which may well be so laid, and some which cannot, the Court will presume the damages given for the causes which are well laid. But the whole of this third count is laid with a continuando, whereas the matter does not lie in continuance. When a declaration is bad through negligence, the Court will not be inclined to favor it. Liberality has been carried, in modern times, too far for the honor of the profession. Ancient authorities, like ancient landmarks, are more venerable than modern ones.</p>

<p>This was an action of ejectment, brought in the county oí Norfolk, by a minor, to recover certain lands which had been leased to the defendant, Colder, by the father of the plaintiff, as guardian by nature of his daughter. The jury returned a verdict for the plain tiff, subject to the opinion of the Court on this question, whether the father, as natural guardian, has a right to lease the independent estate of the minor, for years, without being appointed by the judge of probate, and giving bonds ; the minor being under the age of fourteen years, the lease being for seven years, and to continue till the minor should arrive to the age of eighteen years. After the minor arrived at the age of fourteen years, she made choice of a guardian, who was duly appointed, and by whom she brings this action.</p> <p>At this term, to which the cause had been referred for argument, there was no appearance for the defendant.</p>

<p>A devise in these words, “ I. give unto my three sons, A, B, and C, all my other lands, ifc.: — also my will is, that if either, or any of them, should die without children, the survivor, or survivors, to hold the interest or share of each, or any of them, so dying without children, as aforesaid,” passes an estate in fee simple, determinable on the contingency of their dying without issue, and on that contingency vesting in the survivor, or survivors, by way of executory devise.</p>

<p>The defendant was indicted for uttering, and publishing as true, a certain false, forged, and counterfeit, bill or note, counterfeited to the likeness and similitude of a bill or note issued by order and direction of the President, Directors, and Company, of the New Hampshire Bank, (which bank then was and yet is established by, and under the authority of, the state of New-Hampshire,) signed by the president, and countersigned by the cashier thereof; which bill or note is in substance and of the purport and effect following, viz.: “Ten dollars, No. 129. The President, Directors, and Company, of the New Hampshire Bank promise to pay ten dollars [ *78] at the Bank of the United * States in Philadelphia, to John Pocoke, or bearer, on demand. Portsmouth, the 12th day of May, 1801. Oliver Peabody, Prest. -Peabody, Cashr.”-against the peace and contrary to the form of the statute, &c.(a)</p> <p>At the last term of the Court, the following verdict was found, viz.: “ The jury find the defendant guilty of uttering and publishing the paper set forth in the indictment, in manner and form, and with the intent, as therein alleged; but the jury further find that the name of Peabody, purporting to be the name of the cashier of the said bank, and countersigned to the said note, is not the name of any person who has been, at any time, cashier of the said bank.”</p>

<p>To x declaration in assumpsit, containing several distinct causes of action, the de fondant pleads the statute of limitations in bar of the action. Replication that the -> -omise in the first count is within an exception in the statute, and held goou.</p> <p>Court will not grant an amendment or repleader after joinder in demurrer, when the amended or new plea does not go to the merits.</p>

<p>Statute of limitations of the state of New York cannot be pleaded in bar of an action commenced here by inhabitants of New York, upon a promissory note executed there by the defendants, citizens of this state.</p>

<p>Theodore Hinsdale, a deputy sheriff of this county, had in his hands an execution, in favor of the defendants Clark AL, against M. &f J. Wells, for 310 dollars 73 cents. While holding this execution, and before serving it, he was summoned in this action as the trustee of Clark 8f AL After being so summoned, he levied the debt of M. J. Wells, and paid it over to the attorney of the de fendants, taking an obligation to save him harmless. And the question before the Court was whether, upon these facts, which were disclosed in his answer to the usual interrogatory, he should be adjudged the trustee of the defendants, Clark &f Al.</p>

The answer of Palmer, the trustee in this case, was, in substance, that he had given to Farnum, the principal defendant, before the service of the summons, for a consideration that was not questioned, two several notes of hand, amounting in the whole to 300 dollars, which were payable in horses at a day certain, after the service of the summons.

<p>This was an action of covenant broken, brought on a deed of bargain and sale, in which it was, amongst other things, covenanted by Ingersoll that the premises conveyed were free of all encumbrances ; “ and the plaintiff in fact says that, at the time of making said deed, the premises were not free of all encumbrances, because he says that for a long time before the making of said deed there had been, then was, and ever since hath been, a public town-road, or way, duly laid out by the said town of A, for the use [ * 98 ] of all the inhabitants of the said * town,” (and describes the way,) “ which said road, at the time when, &,c., passed in, through, and over, the said tract of land, and contains two acres and a half, part of the premises conveyed.” The defendant pleads, 1st., the general issue non est factum, which is joined ; and 2d., actio non, &c., because he says that, at the time of making and executing the deed aforesaid, alleged in the plaintiff’s declaration, the same one hundred acres described in said deed were free of all encumbrances, and thereof he puts himself on the country.</p> <p>To this plea the plaintiff demurs specially, and for causes of demurrer shows the following, viz.: That the defendant has neither confessed nor denied the existence of said road; that the plea concludes to the country when it ought to conclude with a verification ; that it offers to put in issue to the jury matter of law not proper for their cognizance; and that it is an insufficient answer, &c.</p>

The original writ in this action was not endorsed by the plaintiff or his attorney, as required by the statute of October 30, 1784, prescribing the forms of writs, &c. At the third term of the Court of Common Pleas after the commencement of the action, the plaintiff moved for, and obtained, leave to endorse his writ, the defendant’s counsel objecting and protesting against the same.

<p>A statute establishing a turnpike road, authorizes a gate to be erected at such place near A, as the justices of C. C. P. shall determine; and the justices determine it shall be erected at B, near A, or at any place between B and C, at the election of the proprietors: this is not an execution of the power granted to the justices by the statute.</p>

This was an action of assumpsit for money had and received, which was tried before Sewatt, J., at an adjourned session in December last, when a verdict was rendered for the defendant.

<p>The mother of a bastard child is entitled to the custody of it, and shall hold it against the putative father, after a marriage and divorce had.</p>

In an action of the case for deceit, the plaintiffs declare that Pliny Bliss and Charles Wiley, contriving and intending to cheat and defraud the plaintiffs, in pursuance of such intention made a pretended promissory note subscribed by said Pliny for the sum of twenty-three dollars, payable to the said Charles, which note the said Charles transferred and assigned to the plaintiffs.

<p>A father is entitled to the earnings of his daughter, while under age.</p>

<p>A motion for a new trial, upon exceptions, for the misdirection of the judge, pui suant to the statute, is within the rule established at March term, 1806, in Suffolk.</p>

<p>This was an indictment against the town of Northampton for not providing schoolmasters, as required by the act of June 25, * 1789, entitled, “ An Act to provide for the instruc- [ * 117 ] tian of youth, and for the promotion of good education.”</p> <p>The indictment, after setting forth the offence, concluded in these words: “which is in subversion of that diffusion of knowledge, and, in hinderance of that increase of education, which the principles of a free government require, and against the peace and dignity of the commonwealth.”</p> <p>At a former term the defendants had appeared, and, by permission, had pleaded that they would not contend with the commonwealth. And now, at this term, they move in arrest of judgment, because that, if any offence is charged, it is created by statute, and it is not alleged in the indictment to be against the form of the statute, or of any law of the commonwealth.</p>

<p>This was a libel for a divorce a vinculo. The parties are described as inhabitants of the county of Hampshire. The libel was originally filed at Worcester, and notice ordered for the appearance of the respondent at this term.</p> <p>By the statute of March 16, 1786, entitled “ An Act for regulating marriage and divorce,” it is enacted “ that all questions of divorce and alimony shall be heard and tried by the Supreme Judicial Court liolden for the county where the parties live,” &c.</p>

<p>Conditional judgment on a mortgage shall be for the amount of principal and interest due, though it exceed the penalty of the bond.</p>

<p>Upon an application to the Sessions for the acceptance of a town-way, tile town must be notified before any proceedings are had.</p>

<p>Tne grant of an original administration more than twenty years after the death ot the intestate is, ipso facto, void.</p> <p>The statute of March 9,1784, prohibiting such grant, applies to the case of in-testates dying before, as well as after, the date of the statute.</p>

<p>This was a certiorari brought to quash certain proceedings of the Court of Sessions for altering a highway in the town of Worcester.</p> <p>A number of errors were assigned, but the Court gave no opinion upon any except the following: —</p> <p>“ 6th. Because the said Court of Sessions, by said record and process, have allowed to the said Lincoln, his heirs and assigns, a right to build a dam on the land of said Anna, (1) which they had no authority to do.”</p> <p>*11 7th. Because the said Court of Sessions, by the [ * 126 J record and process aforesaid, have taken the real property of said Anna and given (it) to said Abraham, in part compensation for his property which they took from him, for said additional highway, which said court had no authority to do.”</p> <p>In the return of the committee of Sessions appointed to make the alteration, is contained.the following clause : “ And whereas there is now erected, on the stream of water which crosses the highway laid out as aforesaid, a dam-, now in the occupation of Abraham Lincoln, Esq., and used by him for the purpose of raising a pond for his mill, and other water-works situate south of said highway ; and whereas, by occupying the highway laid out as aforesaid, the said Lincoln will be necessarily deprived of the benefit of said dam, — the said committee do therefore further report that there shall be given, granted, and secured, to the said A. L., Esq., his heirs and assigns, the right and privilege of building, erecting, and continuing in repair, a dam on the south line of the highway laid out as afore said, to extend so far to the east of said stream, on land now belonging to the county, as shall make a water-level with the highest part of the west side of the canal, where the said south line of the said highway passes the same, and the said dam to be built of a sufficient width to render the same strong and secure ; and the said right and privilege to be held and enjoyed by the said A. L., his heirs and assigns, so long as the said highway shall be used and continued.” And the committee also reported a sum to be paid in money to the said Lincoln. This report was accepted and "confirmed by the Court of Sessions.</p>

The defendant was indicted, tried, and convicted, at the last April term, before Sedgwick, J. The chargejn the indictment was, 11 that… Held: and kept in his possession, six quires of noper, which was a material devised, adapted, and designed, by him for forging and making false and counterfeit notes, in imitation of those issued by banks and banking companies established withir some one of the United States of America, by the laws [ * 129 ] of the said states, under * the…

<p>This was an indictment on the second section of the “ Act against forgery and counterfeiting,” (1) by which it is enacted that if any person, having knowledge of the forging any bank bills, shall willingly aid or assist in rendering current as true any such forged bills, and for that purpose shall possess, at any one time, any number, not less than ten, of such forged bills, knowing the same to be forged, with intent to utter or pass them, and thereby injure and defraud any body politic or corporate, or any person or persons, then, &c.</p> <p>The indictment charges the defendant with being possessed of ten several forged bills of the Nantucket Bank, (the tenor of which is set forth,) knowing the same to be forged, with an intent to * utter and pass the same as genuine notes, and [ * 133 ] to injure and defraud the president, directors, and company, of the said bank.</p> <p>The trial was had before Sedgwick, J., at the last term in this county, when it was proved that the defendant was possessed of the bills, knowing them to be forged ; no evidence was given that he had ever offered to pass them within this commonwealth; but a witness testified that the defendant had appointed a place within the state of Connecticut, where he should meet him, the witness, for the purpose of delivering to him the said bills, that the same might be there put in circulation ; and that they were accordingly so delivered to the witness within the limits of the state of Connecticut.</p> <p>The judge directed the jury that, if they were satisfied that the defendant was possessed of the bills at any place within the county of Worcester, knowing them to be forged, with an intent to utter and pass them as good bills, although they should not believe that he had an intention to utter and pass them in any place within the commonwealth, they were bound to find a verdict against the de fendant, and they accordingly so found.</p> <p>After the verdict, the defendant moved for a new trial for the misdirection of the judge in matter of law.</p>

<p>An indictment against a justice of the peace for altering a writ, issued by himselt, after service, and before the return day, not charging the offence as forgery cannot be supported.</p>

<p>A treasurer may be substituted as endorser upon a writ brought upon a probate bond in the name of the judge, in place of his predecessor, who had originally endorsed the same.</p>

At the last April term, the defendant was indicted for that he, at a day and place named, “ falsely, fraudulently, and deceitfully obtained, had, and kept in his possession, one certain false and forged piece of paper, purporting to be a true and genuine promissory note of hand for money, issued by a corporation duly and legally established by law under the denomination of the Richmond Bank, and which was of the tenor following, viz.: — “ Five Dollars.

This was an appeal from a decree of the Court of Probate allow ing an account of the appellee, as he was guardian of a person nor compos. Penniman claimed and entered the appeal as uncle and next friend of the non compos. By the statute passed March 12, 1784, entitled An Act tor establishing Courts of Probate,” it is enacted that “ any person aggrieved at any order, sentence,, decree, or denial, of any judge of probate, may appeal therefrom to the Supreme Court oi Probate.”

<p>This was an action of assumpsit. In the Court of Common Pleas, on the general issue pleaded, there was a verdict for the plaintiff, and, on motion of the defendant, judgment was arrested. Upon this the plaintiff appealed; and now T. B. Adams, for the defendant, moves the Court to dismiss the appeal. And he argued that an appeal lies to this Court only where a party is aggrieved at a judgment of the Court of Common Pleas. Vide “ An Act establishing Courts of Common Pleas,” passed July 3, 1782. Here being no judgment rendered, there was nothing from which to [ * 142 ] appeal. In the act constituting the Courts * of Probate, an appeal is provided in cases of denial of justice, but there is no such provision respecting the Common Pleas. The plaintiff’s proper remedy is by writ of error. We apprehend the Court cannot sustain this appeal.</p>

B. Whitman read a petition praying that a writ of error might issue on a judgment of the Court of Common Pleas for the county of Plymouth, rendered in April last.

<p>The declaration was in trespass, and contained two counts. The first was for passing the turnpike-gate without payment of the legal toll; and the second was for cutting down the gate.</p> <p>The parties submitted the cause to the Court on a statement of facts, in substance as follows: —</p> <p>That the corporation were duly authorized by law to make the road, and, when made and approved by the Court of Sessions for the county of Norfolk, to erect a gate thereon, near the dwelling-house of Joseph Hunt; that the road was so made and approved; that, by the act of incorporation, “ If any person shall cut, break down, or otherwise injure or destroy, the said turnpike-gate, or shall forcibly pass, or attempt to pass by force, without first paying the legal toll at such gate, such person shall forfeit and pay a fine not exceeding fifty dollars, nor less than five dollars, to be recovered by the treasurer of said corporation, to their use, in an action of trespass.”</p> <p>That the gate was erected on a part of the turnpike-road where was before an ancient public highway ; that it was near the house of Joseph Hunt, but that it might have been placed nearer to the said house, and in a part of the turnpike-road which was not before a public highway.</p> <p>That said Stetson did, on the 29th day of March, 1806, forcibly pass the said gate without payment of toll, and in the evening of said day did cut down said gate.</p> <p>If, upon these facts, the Court are of opinion that the corporation had a right, by law, to erect said gate at the place where it was erected, then the defendant agrees to be defaulted; if otherwise, the plaintiff is to become nonsuit.</p>

<p>If a tradesman, having contracted to perform a certain undertaking, voluntarily leaves it unfinished, he can have no action against his employer for the part performed.</p>

<p>The endorsement on a writ on a probate bond must specially designate the character of the endorser, as heir, legatee, or creditor, &c.</p>

<p>This was an appeal from a decree of the Probate Court, allowing two accounts of the appellee as administrator. The appellant, having neglected to claim her appeal within the time limited by statute, obtained a resolve of the legislature, dated June 12, 1805, authorizing her to appeal from said decree, notwithstanding such neglect and declaring that such appeal should have the same effect as if claimed within thirty days; provided she should give bond to prosecute her appeal, file the reasons thereof, and notify the adverse party, before the 1st day of September then next. August 29, 1805, she gave bond, and filed her reasons of appeal; but the ad verse party was not notified until the 23d day of September, 1805. The appeal was entered at the last October term of this Court And now, at this term,</p>

<p>In a libel for a divorce a mensd et thora, the Court do not require evidence of the marriage unless denied by the respondent.</p> <p>Threats of violence, without actual assault, are no ground for a divorce a mensd et thora.</p>

This was an action of debt on a bond given by the defendants to the judge of probate, conditioned for the faithful administration of the estate of Ebenezer Leach, deceased, of which the defendant, Asa Leach, was administrator.

<p>A libel for a divorce filed in a county into which the libellant has removed, leav tog the respondent in another county, will not be sustained.</p>

This was another libel for the like cause as the last case. The only evidence offered to prove the adultery was the confession of the respondent that he had committed the crime with a certain married woman, and had made a pecuniary satisfaction for the injury to the husband.

<p>When a sheriff returns, upon an execution, that he has appointed two of the appraisers of real estate to be levied upon, he must also return that the debtor refused to choose one.</p>

Certiorari on certain proceedings of the Court of Sessions upon the complaint of Lydia Clark against Joseph Cundell as the putative father of a bastard child, of which she had been delivered.

<p>The Attorney-General (Sullivan) presented a petition of David Tucker, William, Peirce, and John Ruggles, Jun., who, as selectmen of Milton, in the county of Norfolk, had been appointed, by the judge of probate for said county, guardians of one Jahez Sumner, of said Milton, pursuant to the 8th section of “An Act empowering the judges of probate to appoint guardians to minors and others,” passed March 10, 1784. The petition stated that the persona estate of said Sumner amounted to 186 dollars ; that there were debts due from his estate amounting to 141 ; that, in the opinion of the petitioners, (which was fortified by a certificate from the judge of probate for the county of Norfolk,) it was expedient that the whole of the personal property of their ward should be retained for the use of him and his family, and that a portion of the real estate be sold for the payment of the debts, — and they prayed amnority to sell the same accordingly.</p>

<p>In the former action, the inhabitants of Carlisle were plaintiffs, and recovered judgment, on a verdict, for 16 dollars 11 cents damage, and 106 dollars 75 cents costs of suit. The inhabitants of Billerica paid the amount of the judgment, and brought their writ of review. Upon the trial of the review, the former plaintiffs recovered only 10 dollars 11 cents damage; and the counsel for the plaintiffs in review insisted that, within the equity of the statute which provides that, in all actions where the title to real estate does not come in question, a plaintiff recovering less than 4 pounds debt or damage shall be entitled to only one fourth part so much cost as the debt or damage, the present defendants in review should refund the costs of the former action, except the fourth part of 10 dollars 11 cents, the amount of damage as settled by the last verdict.</p> <p>The counsel on the other side opposed this, and contended that the former judgment was to be reversed partially as to the damage, and not at all as to the costs.</p>

<p>A bond from the husband to the father of the wife for her maintenance, after a voluntary separation, is a valid contract.</p>

The indictment, found at the Court of Sessions, in September, 1803, which contained only one count, charged that the defendant, at Burlington, in said county, on Lord’s day, August 21, 1803, within the walls of the public meeting-house, which is used and improved as a house of public worship, with force and arms did behave indecently and rudely, and then and there did wilfully interrupt and disturb the people of said B., then and there assem bled in said meeting-house for…

<p>Where referees award concerning the costs of a suit, the judgment must conform to their award.</p>

This was a libel for a divorce from the bonds of matrimony, for • the adultery of the husband. It appeared that the [ * 168 ] * parties were married a few years since at Framingham, in this county, lived first at Northampton, in Hampshire, and afterwards at Neivburyport, in Essex, where the husband deserted his wife, and has since continued out of the state.

<p>A testator, m case certain devises and bequests to his widow should prove insufficient for her comfortable support, directs his executor to sell certain land for that end. Supplies furnished to the widow by a stranger, after the death of the executor, create no legal demand on the testator’s estate in virtue of suck direction.</p> <p>[And there being no personal estate, or debts due from the estate to the value or amount of five pounds, unless this were such a debt within the meaning of the act, March, 1784, § 10, — held that letters of administration could not be granted.] '</p>

<p>Town must be notified of a petition for a highway before the Court of Sessions adjudge it of common convenience and necessity.</p>

<p>The Court of Sessions must adjudge a way petitioned for to be of common convenience and necessity previously to the laying it out</p>

<p>Assumpsit by the endorsee of a promissory note against the promisor. By a state of facts agreed on, it appeared that the plaintiff, at the same term when this action was commenced, also brought an action against the promisee as endorser. In this last action the defendant was defaulted, judgment given against him for the amount of the note and costs; execution issued upon that judgment, and was returned satisfied.</p> <p>t * 172 J * The question which, upon these facts, was submit ted to the Court, was, whether the plaintiff could maintain this action for the costs. If the Court should be of opinion that he could, then judgment is to be rendered in his favor for one cent damage and costs of suit; but if otherwise, the defendant is to recover his costs.</p>

<p>A nolle prosequi, entered on an indictment, is no bar to another indictment for the same offence.</p>

This was an action of trespass for breaking and entering the plaintiff’s close, and prostrating her fence. It was commenced before a justice of the peace.

<p>A policy of reassurance is a valid contract. [The statute 19 Geo. 2, c. 37, did not extend to the then British colonies, and has never been adopted in this commonwealth.]-</p>

<p>The declaration, which was in case, stated that the plaintiff, on the 16th day of September, A. D. 1799, delivered to one John Hutson, one of the deputies of the defendant, a writ of attachment against one Newhall, commanding the sheriff or his deputy to attach the estate of Newhall to the value of 2000 * dollars, and for want thereof, to take his body, to [*189] answer to the plaintiff in a certain action in the said writ set forth: that Hutson returned upon the writ that he had taken the body of Newhall, and- had- taken bail for his appearance, &c.: that such proceedings were had that, in November, A. D. 1800, the plaintiff recovered judgment against Newhall for 1 ISB-ftfiy dollars damages, and 27x5„8tr dollars costs, and in February, A. D. 1801, delivered the execution issued upon that judgment to Hutson, to serve: that Hutson, in April, A. D. 1801, returned upon the said execution that he could find neither the body nor any estate of Neiohall: that thereupon the plaintiff sued a scire facias against one J. W. Smethurst, who was taken by Hutson as the bail: that in April, A. D. 1802, he recovered judgment upon the scire facias against Smethurst for 1281-,5^ dollars damage, and 1 G-fifs dollars costs: that in May, A. D. 1802, he delivered an execution upon that judgment against Smethurst to Hutson, who committed him to jail, from whence he was discharged as a poor prisoner. The plaintiff then avers “ that, at the time when the said H., deputy sheriff as aforesaid, took the said S. as bail upon the original writ as aforesaid, the said S. was, and ever since has been, and now is, a poor man, and not a sufficient surety for the purpose for which he became bail, as aforesaid ; and had not then, and hath not had since that time, property sufficient to pay the money, to the payment whereof he might thereafter become liable by reason of his becoming bail, as aforesaid ; and that the said H., unmindful of and neglecting the duty of his said office, on -, at-, after having arrested the body of the said N., as aforesaid, did not keep him safely, according to ihe precept aforesaid, but did permit him to go at large without taking sufficient bail, as the law, and his duty in that behalf, required; ” and that “ by reason of the aforesaid neglect and misdoing of the said H, in his office aforesaid, the plaintiff has entirely lost the sums aforesaid.”</p> <p>The defendant pleaded the general issue, viz., that the said II. was not guilty in manner, &c. Upon the trial of this issue, April term, 1804, there was a verdict for the plaintiff, for 1411 dollars damages.</p> <p>[ * ] 90 ] * The counsel for the defendant then filed their motion in arrest of judgment, grounded on the following reasons, viz.:—</p> <p>“ I. Because an action of trespass on the case cannot, by law, be maintained against a sheriff for taking insufficient bail.</p> <p>“ 2. Because it is not alleged in the plaintiff’s declaration that John Hutson, therein named, at the time when he took J. M Smethurst, therein named, as bail upon the original writ of said Sparhawk against S. N., in said declaration mentioned, knew that the said Smethurst had not property sufficient to pay the money, to the payment whereof he might thereafter become liable by reason of his becoming bail, as aforesaid, or that he was not sufficient bail in said action.</p> <p>“ 3. Because it appears by the plaintiff’s declaration that he had, before the commencement of this action, accepted the bail bond mentioned in said declaration, and instituted a suit thereon, in which he recovered judgment and execution against the said Smethurst, the bail therein named ; and afterwards on said execution took his body, which was an acceptance of the said bail, and a waiver of all exceptions to the sufficiency thereof.”</p> <p>This motion was twice argued at former terms, by the present Chief Justice and Putnam, for the plaintiff, and Prescott and Jackson for the defendant.</p> <p>In support of the first cause of arrest, the defendant’s counsel cited 1 Com. Dig. titi Bail, K. 5. — Freeman vs. Barnes, 1 Vent. 55. — 2 Saund. with Williams’s Notes, 61. — 1 Guillim’s Bac. Áhr. 323.</p> <p>As to the second reason assigned for arresting the judgment, from the difference between the English practice and ours, it was said no direct authority to the point could be produced from the books, excepting actions against a sheriff for not taking sufficient sureties in replevin, the reason and principle of which, it was contended, apply strongly to this case — that wilful negligence is always alleged in those actions. And for this were cited Concanen vs. Lethbridge, 2 H. Black. 36. — Lilly’s Ent. 37. — Mod. Ent. 215.</p> <p>f * 191 ] * In support of the third cause assigned for arresting the judgment, were cited Impey’s Sheriff, 128. — Groves-nor vs. Sonme, 3 Salk. 57.—Lord Brooke vs. Stone, 1 Wils. 223. — Tidd’s Practice, 89.</p>

This was an action of trespass upon the case, brought by S. Pernam against W. Wead, for a disturbance in the enjoyment of a way, by stopping il The facts, as they were agreed by the parties, were in substance — That, on the 13th day of March, 1789, the plaintiff was seised and possessed, in his own right, in fee simple, of a lot of land in Newburyport, with a dwelling-house thereon, bounded on one side by a street or public highway; and that he being so seised, one Edmund…

<p>This was a writ de homine replegiando brought originally to the Court of Common Pleas in the form prescribed by the statute, (Feb. 19, 1787,) “ where the plaintiff is held without order of law,” alleging that the said Williams was “ taken and detained in a place called the county prison, in Newhuryport, in said county, by the duress of the said Blunt." Upon non cepit pleaded, there was a trial before Dana, C. J., and a verdict for the defendant, at April term, 1805. After the verdict was received, Livermore, for the plaintiff, alleged the following exceptions to the opinion, direction, and judgment, of the chief jusiice : —</p> <p>“ And now the said W. appears, and, in support of the issue in fact, joined upon the record on his part, here offers in evidence to the jury sworn to try the said issue, and moves the Court for leave to show and offer in evidence to said jury, by good and lawful proofs, the following facts, viz.; That, on the 23d day of June, 1803, at Newburyport aforesaid, he, the said B., of his own mere motion, and with an intent unlawfully to take and imprison him, the said W., did exhibit to a certain justice of the peace for said county a certain complaint in writing, here in Court produced, wherein he, among other things, alleged that the said W. was his apprentice, and duly bound to him as such, and had absconded and left his service ; and did then and there procure a warrant from said justice in common form, also here in Court produced, and by virtue of said warrant did cause and procure the said W. to be arrested and brought before the said justice, and thereupon did procure a further warrant from the said justice, commanding the prison-keeper of the common prison in said Newburyport to receive the said W. into his custody and keeping, and him detain for the space of twenty days; by virtue whereof, the said B. caused the said W. to be taken to said prison, and him there to be detained in manner aforesaid, until he caused himself to be replevied and delivered from said imprisonment by force of his writ of replevin aforesaid. And also to offer and show in evidence, as aforesaid, that-he, the said W., was not, at the time of the taking, detaining, and imprisoning, as aforesaid, nor at any other time, the lawful apprentice of him, * the [ * 208 ] said B., nor bound to him as such; so that the taking, detaining, and imprisoning, aforesaid, were altogether without a right and lawful cause. Whereupon it was adjudged by the Court that the evidence offered as aforesaid, and the facts aforesaid offered to be proved, were not legal evidence to be admitted in this cause, and were insufficient in law for him, the said W., to maintain and prove the said issue on his part; and the said evidence, or proofs, were accordingly refused by the Court to be admitted in the trial of said issue by the jury aforesaid. Because the proceedings before the said justice, and the judgment thereon by him rendered, stand in full force; ■ and because the said W. did not appeal therefrom, as by law he might have done.'”</p> <p>(Note.—The words last above quoted, which are printed in Italics, were added by the judge before whom the trial was had.)</p> <p>The cause has since stood continued to this term; and now Liv ermore, for the plaintiff, moved for a new trial, and contended that the evidence ought to have been admitted, whereby it would have appeared that the taking and imprisoning was by Blunt, the defendant, though the actual custody was by the prison-keeper; thal B. being the principal actor who caused the taking and imprisonment, and the detention properly the detention of B., the writ was duly brought against him ; that the verdict was consequently wrong, and ought to have been that the defendant did take in manner and form, &.c., and damages should have been assessed for the plaintiff; that the evidence being objected to by the defendant, and rejected by the Court, the facts, if competent to support the action, are confessed in the same manner as if demurred to. (1)</p>

<p>Shop books verified by the oath of the party, though not kept regularly in the manner of a day book, may be given in evidence to the jury, who are to judge of their credit If in an account any articles are within six years, they will draw after them the articles beyond six years, so as to take them out of the statute of limitations.</p>

<p>The statute of March 7,1806, respecting marriage and divorce, applies to divorces decreed after the passing it, whether the adultery was committed before or after the date of the statute.</p>

The declaration in this case was in covenant broken, for that, by a certain deed, indented and made on the 23d day of July, A. D. 1802, between the said John, on the one part, George F. Williams, a minor, of the second-part, and the plaintiff, of the third part, sealed with the respective seals of the said parties, and in Court to be produced, in consideration of certain covenants of the plaintiff therein contained, and on his part to be performed, and in consideration that…

The Court having determined that the defendants were answerable only for a partial loss, and they having been defaulted according to the agreement of the parties, (a) assessors were appointed by the Court to ascertain the plaintiff’s damages, who reported, as follows: — “ We, the subscribers, assessors, &c., have met, and fully heard the parties on the matters referred to us, and we find [ * 233 ] * that the whole loss on the vessel and cargo, insured by the policy in the…

<p>This was a review of an action of the case brought by Asa Kilham against the plaintiffs in review, who, on the 9th day of May, A. D. 1803, presided as selectmen at a town meeting held for the choice of representatives, and refused to receive the vote of the defendant in review on the ground of his being an alien.</p> <p>The cause was tried upon the review at the last April term before Parker, J., and a verdict given for Kilham, the plaintiff in the original action. After the verdict, the plaintiffs in review moved the Court for a new trial, for the misdirection of the judge in matters of law.</p> <p>The facts proved at the trial were — That K. was born in Wtnham, in this county, May 28, A. D. 1754. At fourteen years of age he was placed as an apprentice with a carpenter in Salem. A short time before the commencement of hostilities, (April 19, 1775,) one W. Lilly, a native of Great Britain, then living in Salem, with his family, proposed to K. to hire him to go with him to Newfoundland, to work at his trade there for six months in that year. Soon after the 19th April, 1775, K., not yet being of age, but having obtained his master’s consent, went with Lilly and his family, and among them a young woman, — whom Kilham married in January, 1779, — to Newfoundland, then, and ever since, under the jurisdiction of the king of Great Britain, without the leave or permission of the legislative or executive authority of this or any other of the then United Colonies. At that place he continued till August, 1779, laboring at his trade, not only on houses and buildings, but on British ships of war and prize vessels, and on barracks for the use of British soldiers. During this time he was in the family and service of Lilly, and there was no evidence in the trial of any force or compulsion. He frequently expressed to Lilly his attachment to his native country, and his wishes and determination to return to it when he should have an opportunity. Accordingly, in August, 1779, he embarked wiih his wife, and some property, in a British armed ship, lor St. F.ustatia, in order to obtain a passage from thence to Massachusetts. On his passage he refused * to fight [ * 237 j against Americans; and the officers of the ship, upon rhscovering his intentions of returning to his country, retained the property lie had on board. Early in 1780, he arrived at Salem, where he has since lived, and usually wrought at his trade, and in the year 1786 was a non-commissioned officer in the militia there. For upwards of twenty years he had voted at town meetings, and his name was borne on the list of qualified voters at the time his vote was refused as stated in the declaration. There was no evi dence that his right to vote had ever before been questioned on the ground of his being an alien; nor did it appear that he left any property or domicile in any of the colonies, at the time of his going from Salem to Newfoundland. After his return, he frequently related to his neighbors in Salem the circumstances of his being in Newfoundland, and the manner of his employment there, and his return, from which relations only the evidence to those points was obtained. There was no evidence of malice in the selectmen, other than what the facts recited furnished.</p> <p>Upon these facts, which appeared by the judge’s report, a new trial was moved for, as aforesaid, for the following reasons: —</p> <p>1st. Because the judge stated to the jury that thé main question before them was a question of law, which properly belonged to the Court, and not to the jury, to decide; and that, in his opinion, Kilham, on all the facts aforesaid, by the law of the land, was not an alien, but a citizen of the United States, and had a right to vote at the time when he offered his vote.</p> <p>2d. The judge stated to the jury that an act passed April 13. 1779, by the legislature of the then state of Massachusetts Bay. entitled “ An Act confiscating the estates of certain persons commonly called absentees,” ought not to avail against the said Kilham, and that he was not within the same, for this reason, (among others,) to wit, because it was not proved in the said trial that he was, at any time, prosecuted and convicted, upon the said act, for any crime or offence by him committed against the same.</p> <p>[ * 238 J * And now Story, in support of the motion, contended that Kilham was an alien at the time his vote was refused, and proposed to consider his position,</p> <p>1. At common law.</p> <p>2. Under the Declaration of Independence, and the statutes of This government; and</p> <p>3. Under the treaty of peace between the United States and Great Britain.</p> <p>By the rules of the common law, every person born withm a realm owes allegiance to the sovereign thereof, and this allegiance cannot be forfeited, cancelled, or changed, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature. (1) Allegiance is due to the sovereign, not in his political capacity only, but to his natural person. It is due to him not merely by virtue of territorial sovereignty, for it remains though the empire be dismembered. And therefore, where two kingdoms are united under one sovereign, and afterwards separated, all persons born therein during the union owe allegiance to their first sovereign, even after the separation, and cannot by such matters, ex post facto, become aliens. This doctrine is fully stated and approved in Calvin’s case, (2) and in Lord Bacon’s argument respecting the postnati. (3) And the cases of the inhabitants of Normandy, Gascoigne, Guienne, and Anjou, are there cited to show that, though they became de facto subjects of the king of France, yet they owed allegiance to the king of England, and were inheritable of lands in the latter place, until the statute De Prerogativá Regis (4) took away the right. (5) According to these principles, Kilham, having been born within the allegiance of the king of Great Britain, was a British subject, and by the common law did not change his allegiance in consequence of the territory of his birth being dismembered from that empire. If this be true, then the onus probandi lies on him to show that he has since become a citizen of this commonwealth. As it is not pretended *t.hat he has been naturalized, the only means by which [ * 239 j his citizenship could be effected must have been by the operation of the Declaration of Independence, or of the treaty ot peace.</p> <p>In consequence of the Declaration of Independence, the old gov ernment was dissolved, and the majority had a right to form a new one ; but the minority had undoubtedly a right to remove. This seems consonant to the rules of reason, and the principles of natural law. (6) All persons, therefore, who were then within the JJnitea States, and were parties to that declaration, must be considered as agreeing to the new political compact, and by virtue of it became citizens of the established government. As to those who were absent, anima revertendi, to entitle them to the same privilege, it was necessary for them to return within a reasonable time, and by some overt act assent to the compact.</p> <p>This, it is conceived, is a true view of the operation of the Dec laration of Independence, and it agrees with the apparent intent of the legislature in the various statutes made relative to this subject. Allegiance was due to the new government from those only who were parties to it or who derived protection from it. The statute of treasons passed in 1777, (7) in conformity thereto enacts “that all persons abiding in this state, and deriving protection from the laws of the same, owe allegiance to this state, and are members thereof; and that all persons passing through, visiting, or making a temporary stay in, this state, being entitled to, and actually receiving the protection of the laws during the time of such visitation or temporary stay, owe, during -the same time, allegiance to this state.” And it then provides “ that all persons, members of or owing allegiance to this state, as before described, who shall levy war, &.C.,” shall suffer death. This statute does not seem intended to include in its provisions any persons who had left the country previous to the existence of the new government. The subsequent statutes made for the confiscation of the estates of absentees (which we shall hereafter refer to) do not contemplate that persons who had gone away and joined the enemy had committed treason ; [ *240 ] but that their conduct * amounted to an abandonment of their property, which therefore reverted as an escheat to the commonwealth.</p> <p>Consonant with this view of the subject, K. must be considered as having abandoned his native state. His departure was on the very eve of a war; and his subsequent conduct in assisting the British in their hostilities, clearly shows that he had not animum revertendi. And admitting that he had, it was necessary that his intention should have been executed within a reasonable time, which was certainly not done. His return, after an absence of five years, cannot avail him, because it was in direct violation of law. The statute passed in 1778 (8) expressly prohibits the return into the state of persons in his situation ; and it is' presumed that no man can avail himself of his breach of law to establish a right. The consequence seems to be, that K. must be an alien.</p> <p>But if there be a doubt of this construction, it seems completely relieved by the positive provisions of the statute of April 30, 1779, respecting absentees, (9) which in the first section enacts that every inhabitant of this or any other of the late colonies or then states who, since the ] 9th of April, 1775, had. withdrawn, without the permission of the legislative or executive authority of this, or some other of the United States, into parts or places under the acknowledged authority and dominion of the king of Great Britain, and had not before the passing of the act returned into some one of the United States, and been received as a subject thereof, and (if required) taken an oath oj allegiance to such states, shall be 'held, taken, deemed, and adjudged, to have freely renounced all civil and political relation to each and every of the said United States, and be considered as an alien. The second section declares the property of such persons to escheat and enure to the government; and the third section provides process in order to recover the property, in the nature of an inquest of office. This statute was made at a time when the legislature were paramount, and possessed powers of the most transcendent nature. It is a legislative declaration of alienage in all those who are within its provisions, without trial or appeal. * It [*241 ] grew out of the spirit and exigencies of the times; and the occasion is to be found by examining the history of the nation. The construction of it should therefore be liberal, to meet the obvious intention of its makers. The application of the statute to Kilham’s case is so clear that words cannot make it more apparent. The sole inquiry here must be whether a conviction in a court of law was necessary in order to fix the alienage, or whether the act did not if itself operate the disability without any process whatsoever. We contend that the latter is the true construction from the apparent intention of the legislature. It cannot be denied that such an act might have been made. Every law ought to be so construed, as that its provisions may have effect. In the present case, the statute has created no crime, and provided no process or punishment against the person. No indictment could by law be brought to convict any person of abandoning the state, and no judgment could be had that such person was an alien. The intention of the legislature certainly was to deprive all those who had abandoned the government and its interests of all civil rights and privileges. Yet this intention could never prevail, unless our construction be -the true one ; for no conviction could be had, and consequently no disability of alienage otherwise incurred The law therefore would be perfectly nugatory.</p> <p>Other statutes pursuing the same object confirm this construction, and consider all such persons as civilly dead, and direct that the wddow shall be allowed her dower, and debts be paid by the committee appointed to administer the estate. (10) And surely no conviction could be had after a person was civiliter mortuus. No statute can be found inflicting any penalty upon the person in this case. And if absentees were personally amenable, it is a little extraordinary that the zeal of the times should not have meted an adequate punishment. It may be said that a conviction might at least be had in those cases where an inquest was brought, [ *242 ] under the statute, against real estate. * But certainly it is not so. The inquest was a process in rem only, and not in personam. The judgment decided the title to the land, and vested it in the state, but went no further. Either the statute has no operation in this respect, or it has fixed the disability, and admitted it to be shown and pleaded in the present form.</p> <p>Nor is this a new principle. Instances are not unfrequent of attainders, convictions, and disabilities, made by the legislature in critical times. The statute against the conspirators, passed the same day with this under consideration, was of this nature. So by the British statute de prerogative! regis, (17 Ed. 2,) the inhabitants of Normandy were declared aliens, and not capable of inheriting lands in England. But it never was conceived that, to support a plea of alienage pleaded to a real action brought by a Norman, it was necessary to show a judgment in a criminal suit finding that fact. The reason must be, that it was not part of the punishment inflicted on conviction of a crime; but a civil disability established by the legislature ipso facto. The plea of alienage, in such a case, would be general, and the particular facts which constituted it would be matter of evidence. The true distinction between laws where personal disabilities require conviction before they attach, and where they do not, is this: when the disability. is a personal forfeiture for crimes, there before judgment it cannot be pleaded or shown. But it is otherwise, where the disability is created by law independent of the commission of, or judgment for, an offence. Disabilities of this latter kind may always be shown or pleaded, to rebut a claim. The plea of profession assimilates to the present case. It alleges that the party is professed, (1,) and the facts which constitute profession are matters of evidence. But it could never be contended that a conviction was necessary before the plea could avail; for, though the law declares a person professed civiliter mortuus, profession is not an offence, nor the deprivation of civil existence a punishment inflicted upon conviction thereof. In the same manner may all other civil disabilities of this class be [*243] shown, such as villenage, nonage, * bastardy, &c., whether the same be created by the common law or by statute ; and any other construction would virtually annul such law or statute.</p> <p>The result of these reasonings is, that Kilham, being born a Britisl subject, owed perpetual allegiance to the British crown, and the proof lies on him to show himself a citizen of this commonwealth that being absent at the time of the Declaration of Independence, and not having returned within a reasonable time, nor until his return was a violation of law, he still continues a British subject, and an alien to this commonwealth; that the statute of April 30, 1779, is a declarative act to the same effect, fixing the alienage unchangeably ; and that no conviction under that statute could be had, or was necessary, in order to entitle this disability to be shown in civil suits.</p> <p>If these conclusions are correct, the treaty of peace cannot affect the case. K., being at that time an alien, could not be a party to it, on the side of the United States. The only article which bears upon this subject is the sixth, which provides that no future confiscations be made, nor any prosecutions commenced against any person for the part he may have taken in the war; that no person shall suffer any future loss or damage on that account, either in his person, liberty, or property ; and that those in confinement on such charges shall be set at liberty, and the prosecution so commenced be discontinued. It is obvious that this article is calculated only tc prevent future confiscations and prosecutions, and not to annu. those already definitively adjudged. It could neither create nor take away citizenship. It prevented future disabilities, but did no cancel those already established.</p> <p>But, at all events, this action could not be maintained against the original defendants without proving that they acted corrwptly and maliciously; both which allegations are negatived by the state of facts. A mere error in judgment, in a case of this nature, however inconvenient or painful to a party, is not actionable. If it were otherwise, no man would ever accept the office of selectman. If a public officer exercise his discretion * fairly, [ * 244 ] and without malice, he ought to be protected, and the law has wisely so adjudged. (12)</p> <p>Putnam, on the other side. We understand the direction of the judge who tried the cause to have been that, if the facts stated in the report were satisfactorily proved to the jury, the law resulting from them was in favor of the plaintiff’s right to vote as a native citizen of this commonwealth, and that the statute of 1779 cannot now be applied to disfranchise him, as no prosecution was ever had against him for any offences therein described. It is our duty to show that this direction was correct, and that, therefore, a new trial ought not to be granted.</p> <p>We contend that natural allegiance is commensurate with the government affording protection; that it is due to the govern ment of the country of our birth; that, before the separation of the colonies from Great Britain, it was due to the king of the people of both countries; and that, after the political bands of union were dissolved, the people of the United States assumed the sovereignty of these states, and claimed and became entitled to the allegiance of all their native inhabitants, excepting only those who elected to adhere to the king.</p> <p>The treaty of peace was a surrender on the part of Great Britain to the people of the United States, of all claim to their allegiance ; and the people of the United States, who were parties to that instrument, did thereby virtually renounce all claim to the protection of the king, and acknowledged the sovereignty of the people. These principles we apprehend to have been fully considered, upon a state of facts, in the late case of Gardner against the same defendants.</p> <p>(Here Putnam briefly recapitulated the facts in the case referred to, which are stated more at length in the case in the note.) (a)</p> <p>* In that case, it was argued for the defendants, that tí. having voluntarily withdrawn from the state, without permission of the government, into a place then under the acknowledged dominion of the king, by force of the statute of 1779, (called the Absentee \x,t,) he ought to be considered as an alien. It was [ * 246 ] * replied that G. had never intended to abandon his country; that he voluntarily returned, and was cordially received, during the war; that he was never prosecuted under the Absentee Act; and was a member of the United States at the execution of the treaty of 1783. The Court determined that he was a citizen.</p>

Ejectment. The plaintiff claimed under a sale by the “ Front Street Corporation in the town of Boston,” established by a law of the commonwealth, passed March 6, 1804. (1) By this statute sundry persons, and amongst them the defendant, Marshall, described as “ being owners and proprietors of the lands and flats over which the said street will pass, and of the lands and flats adjoining thereto,” are incorporated for the purpose of making a street in the town of Boston.

<p>By an insurance on property on board a ship, effected in behalf of the master ot the ship, whose only interest on board was his commission, of seven and a half per cent on the cargo homeward, such commission is insured.</p>

The writ in this case was dated November 15, 1803, and the. declaration was “in a plea of the case for that the said R., at said Boston, on the 10th day of September last past, by his note under his hand of that date, for value received, promised the plaintiff to pay him or order ninety-five dollars — ten dollars per month for the next nine months, and five dollars for the tenth month, from the above date.

<p>An information under the Conspirators Act, passed April 29,3779, must describe the estate claimed and the title set up thereto by the commonwealth, must allege that the conspirator was seised of the land demanded in his own right, and also that he was seised between the 19th April, 3775, and the date of the act. Such an information may be filed in a different county from that where the land lies, and the summons be made returnable in the latter county.</p>

<p>A draws his order on B, an insurance broker, directing him to pay to C and D, in proportion to their respective demands against A, the balance that may intimately be due to A, on his insurance account, when B should be in cash for the same— also any other moneys which B might afterwards receive on A’s account — to the amount of C and D’s just demands against him. B accepts the order. Such acceptance will support an action by C against B, for C’s proportion of the moneys received by B.</p>

<p>Under the act of March 15, 1805, making further provision in the judicial depart ment, one capitally indicted cannot be arraigned, unless three justices of the Court be present In capital trials the prisoner may give his general character m evidence, after which the prosecutor may call witnesses to disprove such testimony.</p>

<p>A member of the Massachusetts Mutual Fire Insurance Company may surrender hia policy at his own discretion, after alienating the building insured; and may demand his proportion of the funds at the time of the surrender; until which time the policy does not expire.</p>

<p>A judgment upon a formedon in the descender, that the tenant recover his costs, is a good bar to a writ of entry sur disseisin for the same lands brought by the same demandant against the son and heir of the tenant in the first action.</p>

<p>Trespass for an assault and battery, brought originally at the Court of Common Pleas in Nantucket county, and, by appeal, to this Court. Upon the general issue pleaded, the plaintiff had recovered a verdict in both courts; and now B. Whitman, for the defendant, moves that judgment be arrested, on the ground that the declaration was insufficient. The supposed defect in the declaration was, the' the plaintiff has declared, in an action of trespass for an assault ana battery, by way of recital only, and has not directly alleged any trespass to have been committed, but has declared for that whereas,” &c.</p>

<p>Case on a policy of insurance underwritten by the defendant A statement of the facts was agreed on by the parties, substantially reciting that the plaintiff, on the first of December, A. D. 1802, caused himself to be assured the sum of 2000 dollars on the cargo of the schooner Charlotte, at and from Fredericksburg to the port of discharge in Newburyport. The defendant subscribed the policy for 300 dollars. At the time of effecting the policy, the plaintiff expected goods to be shipped from Fredericksburg, on his own account and risk, on board the said vessel, to the amount of the sum insured ; and the vessel had then sailed from Fredericksburg, bound for Newburyport, having on board goods to the amount insured, shipped by Winchester, Howard, &f Company, on their own account and risk, consigned to the plaintiff for sales and returns. The plaintiff was then the general agent of that company, and their creditor to a larger amount than the value of the goods shipped. But the vessel had no goods or cargo for the plaintiff as his property, and he had received no advice of the shipment consigned to him at the time of making the insurance. The vessel, having met with damage at sea soon after sailing, put into Norfolk, where the goods shipped by Winchester, Howard, Co., were taken out of the vessel, for their account, and by their agents, Murray Co., of Norfolk. After this event was known at Newburyport, where the parties to this action live, and where the policy in the case was made, the plaintiff received a letter from Winchester, Howard, &f Co., advising of their shipment by the Charlotte, and requesting insurance to be made for their account.</p> <p>If, upon these facts, the Court should be of opinion that the plaintiff .is entitled to recover, it was agreed that referees should be appointed to adjust the amount of the loss, and judgment be entered up according to their report. If the opinion of the Court should be that, the plaintiff is not entitled to recover any loss, he was to become nonsuit, and the defendant recover costs.</p> <p>*The action was pending in Essex, and was argued at [ * 366 ] the last November term, at Salem, before Sedgwick, Sewall, and Parker, justices, by Prescott for the plaintiff, and Jack son and Little for the defendant. It was continued nisi for advisement, and judgment was to be entered, as of November term, according to the opinion of the Court.</p>

<p>Where an indictment and a civil action are pending at the same time for the same assault and battery, the Court will not stay proceedings on the indictment, if the party injured is not to be used as a witness for the government.</p>

<p>The indictment was found at the last November term, and contained two counts, 1st. It charges that the defendant, “at Boston, in said county, with force and arms, on the 21st day of June, in the present year, did willingly and deceitfully cause, or procure and abet and command, the forging and making a certain promissory note in writing for money, purporting to be a true and genuine promissory note of one Salisbury Blackmer to the said James Ross, or his order, for the sum of 500 dollars, and dated in September, A. D. 1805, with an intent the said £. B. to wrong and defraud.”</p> <p>The 2d count was for uttering and publishing the same note with an intent to defraud certain persons named in the indictment.</p> <p>Upon trial before Parker, J., a general verdict of guilty was given ; after which L. Richardson filed a motion in arrest of judgment, and set forth six several reasons in support of his motion, which was at this term submitted to the opinion of the Court without argument, Richardson observing that his principal reliance was on the fourth reason, which was as follows — “ because the note referred to in said indictment is not sufficiently described and set forth, so as to warrant and support a judgment thereon; nor does it appeal with certainty, on the face of said indictment, when the said note was dated, nor when the same was payable.”</p>

<p>A judgment is recovered against a bankrupt (who has obtained his certificate) for a debt due before the bankruptcy, and execution is delivered to the sheriff, who neglects to serve it In an action against tire sheriff for such neglect, the creditor shall recover only nominal damages.</p>

<p>The only question m this case was, whether Williams was the rustee of Gorham at the time of his being summoned. By his answer to the usual interrogatory it appeared that, before the service of the summons, W. had been appointed sole assignee of one Samuel Rogers, a bankrupt, who at the time of his bankruptcy was indebted to Gorham in 9069 dollars 78 cents, on two negotiable promissory notes. A first dividend was ordered December 5, 1803, and Gorhams proportion of it was soon after paid to him. The second dividend, of which G.’s proportion was 450 dollars, was ordered on the ninth day of July, 1805. But previously to that time, viz., on the 18th day of October, 1804, W. had advanced the amount of that dividend to G., taking his promissory note for the same sum, payable three days before such second dividend should be ordered, * with lawful interest; and on • the 23d day [ * 376 ] of January, 1805, G. signed a memorandum on the back of the said note, declaring that the intention of the parties was that the said 450 dollars, and interest, should be applied towards the said second dividend, and expressly agreeing that they should be so applied. The amount due on the note exceeded the amount of G.’s dividend.</p> <p>On the same 23d of January, 1805, W., at the request of G., signed a memorandum upon each of Rogers’s notes to G. of the following tenor, viz.: “ Boston, January 23d, 1805. I will be accountable to bearer of this note, for the benefit of the creditors of S. G., in proportion to their respective demands on him, for such dividend thereof as may hereafter be decreed by the commissioners on the within-named R.’s estate, to be paid by me as his assignee , the sum I have paid on account of the second dividend, and interest, to be first deducted.” W. has since been informed, and believes, that those notes have been delivered to Messrs. D. D. Rogers, J. Lee, and S'. Brown, agents of S'. G.'s creditors, and are still in theii possession.</p> <p>No further dividend has yet been made or ordered by the com missioned on R.’s estate, but W. has received moneys, and has claims as assignee, which will probably form a dividend equal to the second.</p> <p>W. then goes on to state that G., on the 27th day of February, 1805, by an indenture made between him and divers of his creditors, conveyed to said creditors certain property, debts, and effects, (including the debt originally due from Rogers, the bankrupt,) in full discharge of their demands upon him.t</p> <p>Williams was summoned, as the trustee of Gorham in this action, on the 25th day of January, 1805.</p>

<p>This was a writ of entry brought to recover seisin and possession of the land described, of which the demandants allege that Elizabeth Gilman was seised until the entry and disseisin committed by Bass, the tenant; and that from the said Elizabeth the right descended to Joshua Howe, her cousin, and father of the de mandan ts.</p> <p>Upon the general issue pleaded, a verdict was rendered for the tenant, upon the review, which was tried at the last November term, before Parker, J. And the cause now came before the Court upon a motion of the demandants for a new trial, on the ground that the judge had misdirected the jury as to the proper and legal construction of a deed given in evidence on the trial.</p> <p>The facts proved at the trial, as far as they involve the merits of this motion, were that on the 21st of January, 1707-8, Robert Calef and his wife conveyed, by deed, to Israel Howe-, a piece of land in Boston, described as bounded forty-five feet on Orange Street; and on the 10th of October following, Joseph and Hannah Simpson conveyed to said Howe another piece of land adjoining that aforementioned, bounding twenty feet on Orange Street, which is the land demanded in this action. Israel Howe died seised of both parcels, and from him they descended to the said Elizabeth Gilman, who becoming non compos, Joseph Howe, as her guardian, entered and took the profits until the year 1775, or, thereabouts. On the 5th of June, 1778, the said Joseph, guardian as aforesaid, and being thereto authorized by a resolve of the legislature, by his deed of that date conveyed to Bass, the present tenant, a piece of land described as bounded on Orange Street, and there measuring forty-five feet, and on one side by land of the' heirs of Hannah Kent, and on the other side by land of the heirs of Joseph Veasie. It appeared by the plan used in the case, which was agreed to represent truly the land, as owned by the heirs of Kent and of Veasie at the time of executing the last-mentioned deed, that the *lot between the heirs of Kent and Veasie measured [ * 381 ] sixty-five feet on Orange Street, and that the deed to Bass would be satisfied, as to admeasurement, by supposing it was intended to convey only the lot which Calef and his wife sold to Israel Howe. The demandants offered evidence to shew .hat the deed to Bass was drawn by the deed of Calef and his wife to Howe; but this was rejected by the judge, who also directed the jury that the construction of the deed to Bass was a matter of law, and that where certain fixed monuments or immovable objects are referred to, for the purpose of ascertaining the quantity of land conveyed, those monuments must govern, although it should appear that the actual admeasurement did not agree with the extent stated in the deed; and therefore that, in the present case, by the words of the deed of Howe to Bass, all the land between the heirs of Kent and of Veasie passed to the grantee, although it measured sixty-five feet on the street, and the deed described it as measuring only forty-five feet.</p> <p>The judge also stated to the jury, that Israel Howe having purchased the two parcels a century ago, and within a year of each other, the whole must have been considered as one lot for a great length of time; and that from the petition to the legislature for license to sell, the resolve authorizing the sale, the deed of the guardian, and his acquiescence in the possession of the whole under that deed, there could be no doubt, if it were proper to go out of the deed for an explanation, that the whole lot owned by Elizabeth Gilman was intended to be sold.</p> <p>It was agreed that the guardian pursued his authority in selling to Bass, that the sale was fair, and that Bass was the highest bidder.</p> <p>And now the counsel for the demandants, in support of the motion for a new trial, agreed to the general principle, laid down by the judge at the trial, that monuments were a more sure guide in the construction of a deed than the length or direction of lines. But they thought the application of the principle in the present case too rigid, and contended that they ought to have been [ * 382 ] permitted to introduce circumstances which * would have led the jury to a different conclusion. They also endeavored to make a distinction in their favor between one selling land under a naked authority, as a guardian, executor, &c., and the actual owner of the land; and that in the former case, as the rights of others were to be bound, the deed was not to be taken so strongly against the grantor as where the grantor’s own rights were to be affected ; that as the title of Elizabeth Gilman, the ward, was derived from two deeds, it would have been proper evidence to be left with the jury, that one of those deeds only was handed- to the scrivener, who was employed to draw the deed to Bass, and that that deed contained the forty-five feet fronting on the street. It was also observed that, as the land conveyed in the deed conveying the forty-five feet was bounded in part on Vvasie’s heirs, the land in the deed from Simpson term noting in a point before it reached the rear of the first-described parcel, the construction, contended for by the demandants would better reconcile the difference between the two descriptions than that insisted on by the tenant, and would give some effect to every part of the description in the deed.</p>

<p>Thomas Boylston, formerly of Boston, went to England, by permission of the government of Massachusetts, during the revolutionary war, and there died in the year 1798, having made his will, by which he bequeathed the greater part of his estate to the town of Boston, for certain charitable uses, and made the selectmen of Boston trustees of the said estate. The executors named in the will having declined to accept the trust, administration of the estate of said deceased, with the will annexed, was committed to Ward N. Boylston, the present respondent, in the Prerogative Court of the archbishop of Canterbury.</p> <p>Afterwards, the said W. N. Boylston came into this state, *and, in order to enable himself to collect certain [ * 385 ] debts due said estate here, filed a copy of the said will in the probate office in the county of Suffolk, and the judge ot probate granted administration thereof to the said Boylston, pursuant to the statute of this commonwealth, passed June 29, 1785, entitled “ An Act for the filing and recording of wills proved with out this government, and for taking affidavits in writing for the probate of wills in certain cases.”</p> <p>In December, 1805, upon the application of the said selectmen, the judge of probate cited the said administrator to appear before him, to show cause why he had not settled his administration account, rendered proper inventories of the estate of the testator, and generally to make answer to such questions as might by law be put to him, and to submit himself to such examination as by law he was bound to do. Upon his appearance, in obedience to this citation, a number of interrogatories were put to him, of which it is unnecessary in the present case to state any except the following, viz. : —</p> <p>“ 10th. What is the amount of the testator’s effects, which came to your hands before you took administration in this county de bonis non, with the will annexed ?</p> <p>“11th. Did you not receive from the hands of a Mr. Cookson, al whose house the said testator died, certificates for 30,000 dollars of the deferred stock of the United States debt, which belonged to the testator ?</p> <p>“ 12th. Did you not also receive from said Cookson £4332 10s. 10d. sterling money of Great Britain in cash, being part of the estate of the testator, — and when did you receive it ?</p> <p>" 13th. Have you received any other effects, estate, or credits, in 'England, oi elsewhere, previous to your taking administration here r ”</p> <p>To these interrogatories he answered, substantially, that the testator was an inhabitant of Great Britain, and died in ^London; that letters of administration with the will annexed were granted l<> him, as next of kin, by the archbishop of Canterbury; that he became bound to administer the personal estate of the [ *386 ] * testator according to the laws of England; that he is accountable only to the said archbishop for any assets received or to be received by him in England, or elsewhere, as he conceives; and that he hath no necessity to answer the said interrogatories, or either of them, and is not accountable before this Court for any such assets.</p> <p>The judge of probate below decreed that the said administrator had not in his hands any assets of the estate of said deceased for which he was accountable in that court to said legatees. From this decree the said selectmen appealed to this Court, as the supreme Court of Probate, and the cause came on to be argued at this term.</p>

<p>A dwelling-house, and land thereto belonging, is devised in fee, “ so as it has been improved by my tenants for many years.” These words shall be construed to ascertain the extent of the premises devised, and not to restrain the devisee from enlarging any of the buildings.</p>

The defendant was indicted at the last November term, in this county, for forging and uttering as true a promissory note, purporting to be the note of one Jonathan Ellis, payable to John Flanders, or order. Upon not guilty pleaded, he was tried before Parker, J., and convicted.

<p>A factor has no authority to pawn goods intrusted to him for sale.</p>

<p>This was an action of assumpsit for money had and received, and was tried before Parker, J., at the last November term, when a verdict was found for the plaintiff, subject to the opinion of the Court upon the report of the judge. From this report it appeared, that Walsh, in February, 1800, was master of the ship America, bound on a voyage from Boston to Teneriffe and La Vera Cruz lie received merchandise from one William H. M’Neil, to be sold at La Vera Cruz, and promised, in writing, to account with M’Neil for the amount of the invoice and one half of the profits. He made the voyage safely, and certain profits accrued, according to account rendered by him, amounting to one hundred per centum on the invoice price.</p> <p>At the time of the shipment, Austin advanced to M’Neil one half of the adventure, and was, by agreement with M’Neil, to receive one half of the proceeds of the whole adventure. This was proved by an acknowledgment subscribed by M’Neil on a copy of the invoice on the same day the shipment took place; and also by M’Neil himseli, who was admitted to testify to this fact, after being objected to by the defendant’s counsel; but it did not that Walsh had knowledge of Austin’s interest in the adventure before he sailed. After the ship departed on hei voyage, M’Neil, becoming insolvent, executed a deed in which he acknowledged Austin’s interest in the adventure, made him his attorney to receive the one half of the proceeds to his own use, and directed Walsh to pay over the same to him.</p> <p>On the return of the ship to Boston, Austin demanded of Walsh his half of the proceeds, showing him the evidence of his property, and forbidding him to pay it to any one but himself. Walsh refused to pay Austin, but said he was ready to account with the right owner, and promised, upon the arrival of the proceeds from the Havana, where he had left them, to pay to Austin, if they be longed to him.</p> <p>[ * 402 ] * Upon these facts the defendant’s counsel insisted, on the trial, first, that the interest of Austin and M’Neil being joint, this action could not be maintained by Austin alone for a part, but should have been brought by them jointly for the whole; secondly, that Walsh’s contract being with M’Neil alone, it could not be assigned in whole or in part, so as to authorize an action in the name of another.</p> <p>These objections were overruled by the judge, on the ground that it was sufficiently proved that Austin was originally interested in one half of the adventure ; that this had been made known to Walsh, and a promise made by him to pay Austin, if he were the owner; and also that the action was not founded upon the contract, and that Austin ought not to be compelled to unite in an action with an insolvent debtor, who might not have any interest in the contract at the time of bringing the action.</p> <p>It was also contended that. M’Neil was not a competent witness; but he being called merely to prove that the papers were executed at the times they respectively bore date, and to prove what Walsh had declared the profils to be, this objection was also overruled.</p> <p>As this trial was final on the part of the defendant, a verdict having been before rendered for the plaintiff, these questions were reserved for the opinion of the Court. A verdict was given for the sum due to the plaintiff, which is to be set aside, and a new trial granted, if the Court so determine; otherwise, judgment is to be entered according to the verdict. ”</p>

<p>To charge one with swindling is not actionable</p>

<p>The indictment in this case, which was found at March term, 1804, charges that Amos Tuttle stole certain enumerated goods, the property of Josiah Bellows and David Stone, and that the defendant “ did aid, abet, and maintain, him, the said Amos Tattle, in the felony and theft aforesaid, and with force and arms did knowingly and feloniously have and receive all the same goods and chattels, he well knowing the same to have been stolen, taken, and carried away, in manner aforesaid, against the peace, &c., and the law in such case made and provided.” There is no allegation that Tuttle, the principal thief, has ever been convicted or prosecuted.</p> <p>At the same term at which the indictment was found, the defendant pleaded not guilty ; and the indictment was continued from term to term until November, 1806, when, by leave of the Court, he retracted his former plea, and filed a plea in bar, which is in substance that, before this Court holden here in March, 1804, he was indicted for having received of the same Amos Tuttle other goods, which had been previously stolen by him from Moses Dow, Jun., knowing, at the time he so received them, that they had been stolen; that upon that indictment he was afterwards, in March, 1806, tried and convicted; that upon that conviction, judgment has been rendered, and still remains in force; that the goods men tioned in this indictment, and alleged to have been stolen from Bellows and Stone, and those alleged to have been stolen from Vow, were in the same packages and parcels at the time they were received by the defendant; that they were all received by him at the same time ; and that the act of receiving them was one and the same. Wherefore he prays judgment, &c. To this plea, the Attorney-General demurred generally, and the defendant joined in demurrer.</p>

<p>A widow, having an infant daughter, possessed in her own right of property sufficient for her support, is not compellable to maintain her, but may have an action against the daughter, when she comes of age, for her board.</p>

<p>An infant alien cannot be naturalized upon his own petition.</p> <p>But upon the petition of his parent or legal guardian, dubitatur.</p>

<p>Neither a loss of the proceeds of the outward cargo destroyed by fire at the foreign port, nor damage to the vessel from worms and climate, nor an extraordinary expenditure of provisions, whether by the seamen or by sentinels placed on board by tire government, nor the possible earnings of the vessel during an embargo, are losses within a policy of insurance against the usual risks on a vessel and cargo to, at and from a foreign port, for the purpose of selling the outward, and purchasing a return cargo.</p>

<p>This was an action of covenant hr oleen, brought upon a deed, purporting a conveyance, from the defendant to the plaintiff, of two hundred acres of land in Effingham,, in the state of New Hampshire, in fee simple, for the consideration of 133 dollars 33 cents. The covenants recited in the declaration were that, at the time of executing the deed, the defendant was lawfully seised in fee. of the premises ; that they were free of all encumbrances; that he had good right to convey the same ; and that he would warrant and •defend them to the plaintiff against the lawful claims of all persons. The plaintiff assigns the breaches of these covenants as follows. “ Now the plaintiff in fact saith that, at the time of executing and delivering the said deed to the plaintiff, the said defendant was not lawfully seised in fee of the premises ; that they were not free of all encumbrances; that he had not good right to sell and convey the same to the said L. M. in manner aforesaid; and that [ * 434 ] he * has not warranted the same to the said L. M. against the lawful claims and demands of any person or persons whomsoever; — and so the said D. H. his covenants aforesaid hath not kept and performed, but altogether hath broken the same.”</p> <p>The defendant pleaded, by leave of the Court, two several pleas in bar, on both which issues in fact were joined, — and on each issue the question was, whether the defendant was seised of the premises in fee simple at the time he executed the deed declared on. These issues were tried before Thatcher, J., at Octobei term, 1805</p> <p>At the trial the plaintiff did not produce the defendant’s deed declared on, and the judge was of opinion that it was not necessary for him to produce it, to maintain the issue on his part.</p> <p>The defendant, to maintain the issue on his part, having stated that he purchased the premises of one Weare Drake, a constable, authorized to convey the same to him in fee simple, for non-payment of taxes duly assessed,—and that, by virtue of that purchase, he entered and was seised, — offered to read Drake’s deed to him, the due execution of which was admitted. But the judge was of opinion that the deed ought not to be read until the defendant should have produced-evidence that the constable was legally authorized to make the conveyance, and the deed was rejected. The defendant offered no other evidence. The plaintiff did not prove any ouster, nor show any title or claim of any person adverse to his own ; but his own witnesses proved a continued, quiet, and undisturbed possession of the premises by the plaintiff, and those claiming under him, from the date of the deed declared on to the time of the trial. The plaintiff proved that the present value of the land was 800 or 900 dollars. The judge, in his direction to the jury, told them that the measure of damages for the plaintiff was the present value of the land ; but that as the plaintiff had laid his damages at 600 dollars only, they could not go beyond that sum. The jury found the issues for the plaintiff, and assessed damages for him at 600 dollars. To these opinions and direction of the judge, the defendant’s counsel filed exceptions pursuant to the statute, which were [ *435 ] allowed and signed by the * judge. At the last July term, in this county, the exceptions were urged by</p>

<p>The resignation of a judge of probate operates a discontinuance of an action Lu his name upon an office bond.</p>

<p>Upon a complaint against one as the father of a bastard child, it must appear that the mother charged him in the time of her travail, and continued constant in her accusation; and these facts must be proved by other testimony than her own, before she is to be received as a witness. Distinction between a writ of certiorari and a writ of error.</p>

Levi Thaxter was appointed guardian of the person and estate of a non compos by a decree of the Probate Court for the county of Middlesex. From that decree Abijah Weston claimed an appeal to the Supreme Court of Probate then next to be holden at Concord. in that county, • on the second Tuesday of April last. Weston failing to enter his appeal, Thaxter filed his complaint, praying affirmance of the decree of the court below.

<p>A conveyance of an estate tail, made in pursuance of the statute of March 8, 1792, may be for a good as well as for a valuable consideration.</p> <p>A deed signed, sealed, delivered, and acknowledged, which is committed to a third person, as the deed of the grantor, to be delivered over to the grantee on a future event, is the deed of the grantor presently; and the third person is a trustee of it for the grantee.</p> <p>But if delivered to a third person as the writing or .escrow of the grantor, to be delivered on some future event, it is not the grantor’s deed until the second deliv cry; and if the grantee obtain possession of it before the event happens, the grantor may avoid it by pleading non est factum; but to this last rule there are exceptions. [Tenant in tail may bar the heir in tail by deed conveying the land to his relatives, executed for a good although it be not for a valuable consideration.]</p>

Covenant broken on a collector’s deed of conveyance of a nonresident proprietor’s land, for the neglect of the proprietor to pay a tax assessed upon it.

<p>Upon a petition for partition, and public notice pursuant to the statute, the right of'possession of one claiming to hold in severalty part of the land described in the petition, and of which partition is prayed for, is bound by the judgment for partition.</p>

This action was brought to recover possession of a certain tract of land in Lebanon, in this county. Upon the general issue pleaded, the action was tried at term, before Thatcher, J., and a verdict rendered for the defendant. At this term the plaintiff moves for a new trial, on the ground that the verdict was against evidence.

<p>Administrator of an insolvent estate is not entitled to partition of land held by the intestate in common with others.</p>

<p>Upon the death of a respondent named in a petition for partition, his heirs cannot be admitted to defend, and the petition abates.</p>

To a scire facias on a bail bond, the defendant pleads in bar that, after making and executing the bond, Leonard, the principal, became a bankrupt, according to the intent and meaning of the act of the United, States entitled “ An Act to provide a uniform system of bankruptcy throughout the United States,” ánd on the 10th day of July, A. I). 1805, obtained his certificate.

This was a writ of certiorari, issued on the motion of the inhabitants of Brunswick, removing a record of the Court of Sessions in this county, respecting the laying of a highway in that town, and sundry errors in the record were assigned in the motion for granting the writ, viz., 1st. That a major part of the committee, who located the way, were inhabitants of Brunswick, and therefore not disinterested. 2d. The way was laid partly over a navigable river. 3d. No notice was…

<p>)n this action, the nature and facts of which are fully shown by the Chief Justice, in introducing the opinion of the Court, the question was, whether a bond to reconvey an estate, upon payment of a sum of money, bearing even date with a conveyance of the same estate from the obligee to the obligor, was within the provisions of the statute passed November 4, 1785, entitled “ An Act giving remedies in equity,” so as to entitle the obligee to an equity of redemption.</p>

<p>If a demand m favor of an inoslvent estate, against one claiming as a creditor, exceeds such claim, it is not a subject for the report of the commissioners appointed to receive and examine the claims upon such estate.</p>

In this action the plaintiff demands possession of a lot of land in the township of Gray, in this county, which he alleges was, in the original division of the township, appropriated to the use of the minister of Gray for the time being; that he was, on the 26th of October, 1803, duly settled and ordained as the minister of said Gray, and still so continues, “ and ought, by the law of the land, to be in the quiet possession of said lot of land, and enjoying the use thereof…

<p>Trustee'of an absconding debtor will be holden, unless sufficient matter appear in his answer to discharge him.</p>

<p>A conveyance of land duly recorded is good against a prior conveyance not recorded, if no notice, express or implied, has been given.</p> <p>When a prior conveyance, not recorded until after one of a subsequent date, is attempted to be supported on the ground of fraud in the second purchaser, the fraud must be very clearly proved.</p>

<p>A part owner of a chattel cannot maintain a replevin for his undivided part: and if it appear from the plaintiff’s own showing that he is but part owner, the Court will abate the writ ex offrno.</p> <p>When judgment is arrested for the insufficiency of the plaintiff’s declaration, the defendant, shall recover costs.</p>

<p>This was an action of the case against the defendant, one of the coroners of this county. The declaration recited that the plaintiff, having a demand against one Hall, sued out his writ of attachment upon that demand, and delivered it to one Longfellow, a deputy sheriff, to be served and returned, who made his return that he had attached nine hogsheads of rum, the property of Hall: that one Greenleaf, claiming to own the said nine hogsheads of rum, sued out a writ of replevin against Longfellow, and delivered it to the defendant to be served : that the defendant, “ minding and contriving to defraud the plaintiff, and to deprive him of the benefit of his said attachment, and utterly regardless of his duty as a coroner,” replevied the same rum out of the possession of the said Longfellow, and delivered it to the said Greenleaf, “ whom he knew to be possessed of little or no property,” taking as sole surety, in the bond to prosecute the replevin, one Cogswell, “ whom he knew to be possessed of no property: ” that in the bond the rum was valued at 400 dollars, although the defendant well knew it to be of the value of 2000 dollars: that the plaintiff recovered judgment against Hall for 1859 dollars 50 cents damage, and 95 dollars 79 cents costs : that Greenleaf duly entered his action of replevin against Longfellow, and, after sundry continuances thereof, became nonsuit; whereupon Longfellow had judgment for a return and for his costs : that the plaintiff sued out a writ of execution [ *515 ] against Hall, and delivered *it to Longfellow, to be levied and returned according to the precept of it, upon which he returned that he could find neither the body nor any property of Hall whereupon to levy it: that the plaintiff’s said judgment yet remains wholly unsatisfied ; and that said Greenleaf and Cogswell have absconded to parts unknown, unable to pay the aforesaid sums, or any part thereof. “ Wherefore, by the misconduct and neglect of the said North, the plaintiff has wholly lost tire benefit of his said attachment, judgment, and execution; to the damage,” &c.</p> <p>Upon not guilty pleaded, and issue joined, a verdict was found, October term, 1805, for the plaintiff, for 880 dollars.</p> <p>The defendant moves in arrest of judgment, and in support of his motion sets forth sundry defects in the declaration; but judgment being arrested on a different ground, stated in the opinion of the Court, it is unnecessary particularly to recite those supposed defects.</p> <p>Upon this motion, the cause came on the first day of this term to be heard.</p>

<p>Debt on bond. The defendant prays oyer of the bond, and of the condition, which is as follows: The condition of the above obligation is such that whereas the said Blood hath * commenced an action of replevin against the said Lind- [ *519 ] 6ay for two oxen said to be detained by the said L. in, &c., as in the writ, &c., is set forth, which action is to be heard and tried at, &c.: now, if the said B. shall prosecute the said replevin to final judgment, and pay such costs and damages as the said L. shall recover against him, and shall also return the said cattle, in case such shall be the final judgment, then this obligation to be void; otherwise,” &c.</p> <p>The defendant then pleads in bar that there never has been any final judgment that he should return said oxen to the said L., and that the said L. has not in said action recovered judgment against him for any costs or damages.</p> <p>The plaintiff replies that, at the Supreme Judicial Court holden, &c., he prosecuted the said action of replevin to final judgment by entering his complaint, and recovered on said complaint judgment against the said B. for a return of the said oxen, 1 dollar damage and costs taxed at 18 dollars 16 cents, which judgment is in full force, — “ and this the said L. is ready to verify by the record in such manner as the Court shall order.”</p> <p>To this replication the defendant demurs, and the plaintiff joins in demurrer.</p>

<p>This was an action of debt upon a bond for the liberty of the prison yard. Upon oyer of the bond and the condition, the defendants plead in bar that M’Lane continued a true prisoner, &c., until the 7th day of October, A. D. 1803, when he was lawfully discharged by Arthur Lithgow, Esq., then and still being sheriff of the county, and keeper of the jail, by and with the consent of the said Bridge. There is a second plea to the same effect, omitting the consent of the creditor.</p> <p>'The plaintiff replies to each plea that the defendant M’Lane was not lawfully discharged, as he has set forth in his plea, and tenders an issue to the country, which is joined by the defendant.</p> <p>At the trial of these issues before Thatcher, J., October term, A. D. 1805, the defendants produced a written permission from Mr. Lithgow, the sheriff, to M’Lane, to go at large. They then produced th« sheriff as a witness to prove the plaintiff’s consent to M’Lane’s liberation. The plaintiff objected to his admission, as an incompetent witness. The objection was overruled by the judge, and the defendants obtained a verdict. To this opinion of the judge, the plaintiff filed his exception pursuant to the statute This exception came now before the Court, upon a motion for a new trial.</p>

<p>A declaration which sets out a defective title is not cured by a verdict.</p> <p>In debt for a penalty, nil debet is the most proper plea.</p>

The indictment charges that the defendant, being a deputy sheriff of this county, with force and arms, by color of his office, did wilfully and corruptly demand and receive of one Joseph Clif ford, for the service of a certain execution against the said Clifford, and wherein one Theophilus Hamblin was the creditor, a greater fee for the service of the said execution than by law was provided, viz., 9 dollars and 17 cents, when in fact there was due to him no more than 1…

Williams, the *rustee, disclosed, upon his examination, that, prior to the semee of the summons upon him in this action, * which was on the 31st December, 1806, for [*525 ] a valuable consideration he had given to King, the principal debtor, a promissory note, payable to the bearer, for 250 dollars, payable in West Indian and English goods, at a time certain, posterior to the service of the summons.

This was an action of the case against the defendant, as sheriff of the county and keeper of the common jail, wherein the plaintiff declared against him, for that one Amos Partridge, under-keeper of said jail, for whose conduct in said office the defendant was answerable, did so carelessly and negligently keep and confine in said jail one Moses Lambert, who was committed to his custody upon mesne process in favor of the plaintiff, that he escaped out of said jail; and…

<p>This was an indictment against the defendant for a nuisance in erecting a building on a certain townway in Hallowed, in this county Upon not guilty pleaded, there was a trial before Sew am, J., at June term, 1806, and a verdict against the defendant, subject to the opinion of the Court on certain points which were to be reported by the judge; and if it should be the opinion of the Court that the indictment was maintained upon the several points stated in the report, then judgment was to be entered, and sentence awarded against the defendant pursuant to the verdict; but if the opinion of the Court should be otherwise, the verdict was to be set aside, a verdict of not guilty entered, and the defendant be discharged from the indictment.</p>

<p>The indictment in this case was found at the Court of General Sessions of the Peace for this county, May term, 1803. It alleges that there is a certain river or stream in this county, which empties itself into the River Kennebeck, called Sandy River, up and through which said Sandy River, salmon, shad, and alewives, have been wont to pass to the ponds adjacent, to cast their spawn, and which river ought by law to be free from all obstructions whatever; yet that the defendant, not ignorant of the premises, at Farmington, in said county, on the first day of June, 1801, with force and arms, built and erected a mill-dam across said Sandy River, and being owne> and occupant thereof, the same hath continued to the present time, without making or providing a sufficient sluice or passage-way either through or round the said dam for the said fish to pass up, as by law he ought to have done. By reason whereof, the said fish have been, and still are, obstructed in their passing up the said river, “ to the great injury of the public, in evil example to all others in like cases offending, against the peace and dignity of the commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>Upon not guilty pleaded at the Court of Common Pleas, (1) he was convicted and sentenced, and appealed to this Court, where, at September term, 1805, he was again tried and found guilty.</p> <p>After verdict, the defendant moved in arrest of judgment: — 1. Because it is expressly declared and enacted, by the statute (2) on which the indictment is founded, that an offence, similar to that charged in said indictment, shall be considered and adjudged to be a nuisance, and abated as such: whereas the offence charged in said indictment is not therein alleged to be a common, [ * 531 ] * public, or other nuisance, nor is it stated that said mill-dam was erected or continued by the said J. K. to the public or common nuisance of all the citizens of said commonwealth, as it should have been. 2. Because, by law, the said indictment did not lie at said Court of General Sessions of the Peace, and said court last named had, by law, no jurisdiction of the offence charged in said indictment. 3. Because the said indictment is informal, and wholly insufficient.</p>

The defendants Mere indicted October term, 1805, for conspiring to accuse one Ichabod Rollings of receiving and concealing stolen goods; and, in pursuance of the said conspiracy, falsely charging the said Rollings, in the hearing of divers citizens, with concealing in his dwelling-house, or barn, divers goods which had been before stolen from one W.; and, in further pursuance of said conspiracy, fraudulently placing the goods aforesaid under the floor of the said Rollings’s…

<p>This action was brought to recover possession of a certain parcel of land in Waterville, in this county.</p> <p>Upon the general issue pleaded, the cause was tried before Thatcher, J., September term, 1805, and a verdict returned for the demandant.</p> <p>Exceptions were filed to some opinions of the judge at the trial, which are stated in the opinion of the Court.</p>

This was an action on a promissory note, to which non assumpsit had been pleaded ; and now Greenwood, for the defendant, moved the Court for leave to withdraw the plea, for the purpose of offering the defendant’s oath that usurious interest had been taken or secured on the note declared on, as provided in the statute against excessive usury. (1)

<p>This was an action of debt on a bond, which, on oyer, appeared to have been made by the defendants to the plaintiff, a deputy sheriff of the county, upon suing out a writ of replevin against him in the name of Blacklin, and was in its form pursuant to the statute.</p> <p>The defendants, under leave obtained, plead two several pleas, the substance of which sufficiently appears in the opinion of the Court, which was given without argument, the counsel for the defendants not inclining to argue in support of the pleas.</p>

The plaintiffs, who sue in this action by Nathaniel Thwing, Esq., treasurer of the county, demand of the defendant, named in the writ as of Portland, in the county of Cumberland, the sum of 1800 dollars, for so much money laid out and expended by the plaintiffs for the defendant’s benefit; and a like sum for so much money had and received by the defendant to the use'of the plaintiffs.

<p>A town in which a prison is situate is held to support a pauper confined in prison for debt, whether he has a legal settlement in any other place or not, after due application to the overseers.</p>

<p>If the sheriff permit a debtor, who has been surrendered by his bail in a civil action, and by the court committed to the custody of the sheriff) to go at large before the expiration of thirty days, he shall be chargeable for an escape, although he was not furnished with a copy of the order of court committing such debtor.</p>

<p>In this action the demandant, Deborah Ray, claimed her dower in certain estates, as the widow of Caleb Ray, deceased. The cause was submitted to the Court on a statement of facts, the substance of which is contained in the following abridged sketch: — James King, being seised in fee of the premises, in 1710 made his last will and testament, and therein devised the same as follows, viz.: — ,</p> <p>“ All the rest and residue of my estate, real and personal, in possession or reversion, whatever or wheresoever, I give unto my loving wife, for and during her natural life ; and after her decease, unto my daughter and her heirs forever. But in case my daughter should happen to die before she come to age, or have lawful heir of her body begotten, then after my wife her decease, I bequeath unto my loving sister, Deborah Calfe, the one third part of my real estate, and the other two thirds unto my said wife, so to be divided unto them or their heirs forever, always provided my said wife should hold all during her natural life, without any interruption.”</p> <p>In 1711, James King died, leaving his wife Rachel, and his said daughter.</p> <p>In 1729, the said daughter Deborah married Caleb Ray.</p> <p>* In 1731, the mother, Rachel King, conveyed her [ *555 J interest in the premises to the said Caleb Ray and wife.</p> <p>In 1732, Caleb Ray and wife conveyed the premises to John Hill, who, in two days after, reconveyed them to the said Caled Ray, in fee.</p> <p>In 1747, the said Deborah Ray died, leaving three children by her said husband, viz., James, the eldest, and now one of the defendants, George, and William. The two last named are dead; William having left issue now living.</p> <p>In 1777, Caleb Ray married his second wife, also named Deborah, the present demandant, and in 1797 he died, leaving her his widow.</p> <p>James Ray has entered upon the premises, claiming as heir in tail to his mother.</p> <p>The question submitted to the Court on these facts is, whether Caleb Ray died seised ■ of such an estate in the premises, as that his widow, the present demandant, is entitled to her dower therein.</p>

<p>Inhabitants of towns wherein jails are situated are bound to provide for poor prisoners committed on execution, though they have a legal settlement elsewhere.</p>

<p>Assumpsit on a policy of insurance on the sloop Margaret and her cargo, wherein the plaintiff demands as for a total loss. The action was pending in the county of Cumberland, and, a statement of facts being agreed on, was continued nisi from September term, at Portland, to be argued at this term.</p> <p>The facts agreed on by the parties were as follows, viz.:—that the plaintiff, being the owner of the sloop Margaret, and her cargo, on the 14th of January, 1800, caused the policy declared upon to be made, and the. same was accordingly made, *and subscribed by the agent of the defendant, for two [ * 566 ] thousand dollars; that the said sloop, on the said 14th of January, 1800, sailed fiom Portland for Cape Francois, and on the 17th day of February following, as she was proceeding on her voyage, was taken by a French privateer, the name of which and of her commander is unknown ; that all the crew of the Margaret were'taken out, except the master, a French crew put on board, and the sloop ordered to a French port; that while the sloop was in possession of the French crew, property belonging' to the cargo, to the amount of 281 dollars, was plundered ; that after the sloop had been in possession of the captors three days, she was recaptured by the British frigate TJ Unite, commanded by John Beresford, Esq., and sent into the Island of. Tortola; that the said sloop and her cargo were then libelled by the recaptors for salvage; that the Vice-admiralty Court of that island decreed that the whole of the vessel and cargo should be sold at auction for the payment of the salvage to the recaptors, and that one third of the gross amount of the sales should be paid to the recaptors for such salvage, the remaining two third parts thereof, after deducting costs of suit, should be paid to the master of the sloop, for the benefit of the owners, underwriters, and all concerned ; that the vessel was accordingly sold for 807 dollars and 25 cents, and the cargo for 3842 dollars and 64 cents; that the said cargo was sold in lots, and purchased by the inhabitants of the island; that the vessel was purchased by David Maxwell, the master, who returned in her, with part of her former crew, to Portland, and there delivered her, to gether with about one hundred hogsheads of salt, purchased with the proceeds of said cargo, for ballast, — on which there was a loss when sold at Boston, — to the plaintiff, the former owner, who re ceived the same, and appropriated it (them) to his own use; that the plaintiff has never abandoned, or offered to abandon, to the defend ant, or any of the underwriters, either vessel or cargo, but credited them, when he demanded a settlement of the policy, with the net proceeds of the property sold in the West Indies.</p> <p>The question submitted to the opinion of the Court in this case is whether, upon the foregoing state of facts, the cap- [ * 567 ] turc, * recapture, and sale, of the sloop and cargo, for the payment of salvage, was such a change of property as will render the defendant liable for a total loss. If the Court should be of the opinion that the circumstances aforesaid create such a change of the property as will render the defendant liable as for a total loss, then judgment is to be rendered for the plaintiff for such sum as shall be agreed on by the parties, or awarded by referees. But if the Court should be of the opinion that the circumstances aforesaid do not create such a change of property as will render the defendant liable as for a total loss, but only for an average loss, then the parties agree that such average loss shall be adjusted by referees, as aforesaid, or by the Court.</p>

<p>Upon a note payable in eight years, with interest payable annually, an action lie* for the interest before the principal is payable.</p>

This was an action of the case against Baldwin, as sheriff of the county of Middlesex, for refusing to deliver to the plaintiff a bail bond, in an action wherein Foster was plaintiff, and in which the deputy sheriff returned that he had taken bail. “ And the said -Baldwin comes and says that, at the time of the purchase and service of this writ, he was, long before had been, and ever since hath been, sheriff of the county of Middlesex; and that by law, for the misfeasance…

<p>This was assumpsit for goods sold and delivered. The plaintiff offered the testator’s day-book in evidence. When the book was produced, it appeared by post-marks that the account had been transferred to a' leger, and the counsel for the defendant insisted that the leger should be produced.</p>

<p>The petition alleges that John Brewer, on the 30th day of November, A. D. 1791, was seised in fee simple of the premises described in the petition, “ and afterwards, on the-day of -, died seised thereof, leaving the said Sarah, and James Brewer, the respondent, his only children and heirs at law, not having given or bequeathed to said Sarah any legacy by any last will and testament, — whereby, and by virtue of the law in such case provided, the said Daniel and Sarah, in her right, became entitled te have one undivided moiety of the premises assigned to them; wherefore they pray for partition,” &c.</p> <p>The following agreement was made between the parties in this cause:—</p> <p>“ John Brewer, being seised of the real estate in Boston mentioned in his will, made his last will and testament, and among other things devised as follows, viz., ‘ I give and bequeath to my beloved wife, Anne Brewer, all my personal estate forever, for her to enjoy.and dispose as she shall see fit after my decease; also I give and bequeath to her all that piece or parcel of land, with the workshop thereon standing, which I bought of Richard Thurston, and is bounded, &c., forever, for her to dispose of according to her mind and pleasure ; also the * income and [ * 571 ] improvement of the remainder of my real estate for and during her natural life ; and at her decease I will and order that the same be divided among my grandchildren, or as many of them as shall be then living, viz.: To James Brewer, Henry Brewer, Thomas Brewer, Jane Brewer, and Dorcas Brewer, children of my son James Brewer, — and to Robert Peck, William Peck, Sarah Peck, John Peck, and Anne Brewer Peck, children of my daughter Sarah, — in equal parts or portions forever, for them to improve and dispose of as they may see fit.’ And the said John Brewer, the testator, afterwards died seised of the estate by him devised as aforesaid, and leaving the said Anne Brewer his widow, and the said James Brewer and Sarah his only children and heirs at law, not having given or bequeathed to said Sarah or to said James any legacy or portion, and without having mentioned their names in any other manner than is above recited ; said Sarah not having had an equal proportion of said deceased’s estate bestowed on her in the deceased’s lifetime.</p> <p>“ Now, if the Court are of opinion that the law is such that the said Sarah is entitled to have a portion of said deceased’s estate, in the same manner as if he had died intestate, then the parties agree that judgment be rendered for the partition thereof, and for the assignment of her part in severalty in that part thereof not specifically devised to Anne Brewer ; otherwise, they agree that said petition be dismissed.”</p>

This was an action of the case on a promissory note subscribed by the defendant’s intestate .jointly with two other persons who survived him, and whom the plaintiffs allege to have absconded and removed out of the commonwealth. Dane, for the defendant, demurred to the declaration on the ground that the promise or contract survived against the other promisors alone, and thereby the estate and administrator of the joint promisor, deceased, were by law wholly discharged.