Volume 20 — Massachusetts Reports

Jackson and Lincoln, the supposed trustees, in their an swers, disclosed an agreement made on the 21st of December, 1322, between themselves and Aiken & Cushing, the principal defendants, wherein it was stipulated that Aiken & Cushing, who were housewrights, should finish by the 1st of August a dwellingbouse which they had begun to erect or and of one Rice, but which at the time of the agreement had been purchased by Jackson & Lincoln, and that they should find all the…

<p>In assumpsit for goods sold, the plaintiff, to take the case out of the statute of limita tions, proved that the defendant said he would pay for the goods, if A. J3. would say that he had had them, or, if the plaintiff would prone it by A. B.— leaving it uncertain which expression was used. Held, that the plaintiff had not laid a foundation for the admission of proof of A. B.’s declarations.</p>

<p>Where a note is given in the name of a firm, by one of the partners, for the private debt of such partner, and known to be so by the person taking the note, the other partners are not bound, unless they have been consulted and have consented to the transaction.</p> <p>The person taking such note cannot recover on it against one who indorses it without any consideration, thinking it to have been made by the firm $ and the burden oí proof is on the holder, to show that the indorser knew the circumstances under which it had been made.</p>

<p>Assumpsit on an account annexed to the writ, to recovei the price of 40 firkins of lard sold and delivered by the plaintiff to the defendants, who at the time were partners in trade in the city of New York.</p> <p>At the trial, before Wilde J., the plaintiff proved the sale and delivery, but it appeared that a negotiable note had been given by the defendants at the time, payable in four months, and that the plaintiff had given a receipt stating that the note was received in full for the lard. Whereupon the plaintiff moved for liberty to amend his writ by inserting a count on the note, but this amendment was not allowed.</p> <p>The plaintiff then offered evidence to prove that the note had never been paid, and that it was lost. The defendants’ counsel contended that the note, being negotiable, was in law payment for the lard ; but as it appeared that the contract was made in New York and was to have been performed there, and as it was admitted that by the law of New York, as laid down in reported cases, the note would not amount to payment, the jury were instructed to find for the plaintiff, if they should be satisfied that the note had never been paid and that it was actually lost; and they accordingly found a verdict for the plaintiff.</p> <p>If the Court should be of opinion that on this evidence the plaintiff was not entitled to recover, the verdict was to be set aside and the plaintiff was to become nonsuit; unless the Court should be of opinion that the motion to amend ought to have been allowed.</p>

<p>In the case of a libel for a divorce, J. T. Austin, on the part of the libellant, offered in evidence a deposition in perpetuam, taken'in the State of Maine before the libel was pending and without notice to the libellee.</p> <p>Austin urged that it was admissible as a deposition in perpetuam, taken pursuant to St. 1797, c. 35, § 8 ; or that at least the Court might, within their discretionary power, admit it as a foreign deposition ; or that it might be viewed as a judidicial proceeding pursuant to the statute of Maine, which is similar to our own, and so it would be entitled to full faith anc credit here by the constitution and laws of the United States . and that if a deposition in perpetuam could not, under our statute, be taken in another State, a party would have no means of perpetuating the testimony of a witness living in such State.</p>

<p>Debt on a joint and several bond made by Edward V. Baxter, Thompson Baxter, and the defendant’s testator, conditioned that E. V. Baxter should faithfully discharge his duties as a teller of the State Bank.</p> <p>The defendant pleaded in abatement, that an action for the same cause had been commenced in the Court of Common Pleas against Touro and T. Baxter as survivors of E. V. Baxter, had been brought into this Court by appeal, and had been continued from term to term till November term 1822, when Touro having deceased his death was suggested on the record, and had since been prosecuted in this Court against T. Baxter as survivor of Touro and E. V. Baxter, and yet remained undetermined.</p> <p>General demurrer.</p>

<p>The warden of the State prison brought an action, pursuant to St. 1813, c. 47, $ , upon a contract relative to the employment of convicts within the prison, and died pending the suit. It was held, that neither his successor nor executor could be compelled to prosecute the suit, and that the defendant’s remedy for his costs was by application to the legislature.1</p>

Assumpsit upon a memorandum in writing as follows : — “ Memdm. State Bank. No. 100 Dolls. cts. May 29, 1819. Pay to Capt. Cazneau or bearer one hundred dollars. Elisha Wheeler. To the cashier.” The word State was cancelled by a line drawn through it. The declaration contained the usual money counts ; also counts upon the memorandum as upon a promissory note, and as upon a bill of exchange.

<p>Assumpsit for money had and received and for money lent and accommodated.</p> <p>The plaintiffs, to maintain their action, offered to prove, that in November, 1822, they shipped on board the ship Topaz 904 barrels of apples,'to be carried to the port of Liverpool, and that freight was paid in advance to the defendants, they being owners of the ship for the intended voyage ; that no deduction was made from the usual freight on account of advance payment, and that there was no agreement that freight was to be allowed at all events; that the ship was stranded at Crosby, about six miles below the port of Liverpool, and that the greater part of. the apples belonging to the plaintiffs was lost.</p> <p>The defendants objected to this evidence, contending that the freight having been paid in advance, they were not liable to repay it, the apples having been lost without their fault and there having been no agreement to refund in case of such loss.</p> <p>This objection the judge overruled, intending however to reserve the question. The plaintiffs accordingly proved the stranding of the vessel and the loss of the apples.</p> <p>In the bill of lading it was expressed, that thv apples were to be delivered “ in the like good order and we)1 conditioned, at the aforesaid port of Liverpool, the danger of the seas only excepted, unto Mr. William Graves [one of the plaintiffs] or to his assigns, he or they paying freight for the said goods nothing, being paid here.”</p> <p>The cause was argued at much length by W Prescott and J. T. Austin for the defendants, and S. Hubbard for the plaintiffs. The points raised will sufficiently appear in the opinion of the Court delivered by the chief justice</p>

<p>The defendant was indicted for letting out and accommodating a part of a house to one Susan Bryant, with the intent that the business of prostitution should be carried on therein. The house was owned by the defendant but not occupied by him. The indictment alleged that he did, on a certain specified day, let out and accommodate this house for the purpose mentioned, and that it was afterwards in fact used for that purpose.</p> <p>There was no evidence to prove any express agreement that the house should be thus used, but there was evidence that the lessee was a woman of ill fame, and that the defendant knew it when he let the house. The letting was not until some months after the time mentioned in the indictment.</p> <p>It was contended on the part of the defendant, that it was incumbent on the government to prove an express illegal agreement, and to show that it was made at the time charged in the indictment; and further, that the facts set forth in the indictment did not constitute an offence, either at common law or by statute.</p> <p>A verdict was taken against the defendant, subject to the opinion of the Court upon these points.</p>

<p>Whether any entry on Jand by virtue of an extent, although the execution be extended on the land of a personnel a parly to it, will sustain a process of forcible entry and detainer, quaere.1</p> <p>The possession of a tenant at will is not the possession of the lessor so as to enable him to maintain forcible entry and detainer against a stranger for expelling the tenant.</p> <p>Where a writ of restitution in a process of forcible entry has been executed, and the proceedings are afterward quashed upon certiorari, this Court have power to award a writ of re-restitution.</p>

<p>In an action on the case in the nature of a conspiracy, against three, for obtaining goods upon credit by false and fraudulent representations, evidence that such repre sentations were made by one alone in pursuance of a previous agreement and con federacy to that effect with the other two, but in their absence, will sustain a declaration charging them all with having made the representations.</p> <p>A judgment on the merits in such action is conclusive on the parties, and is a bar to any new action in a different form.</p>

<p>This was an action on the case against Israel Herschell, Jacob Myers, and Isaac Joseph, for making false and fraudulent representations in order to induce the plaintiffs, and by which they were induced, to sell goods to Herschell on credit.</p> <p>The second count alleged, that u Herschell, Myers, and Joseph, at &c., maliciously and wickedly contriving and intending, for their own lucre and gain, to injure, cheat, and defraud the plaintiffs, did then and there falsely and fraudulently say, represent, and declare to the plaintiffs, &c., [setting forth the pretences by reason of which the plaintiffs were induced to part with their goods, and denying the truth of such pretences,] and so the plaintiffs say they have been cheated and defrauded by reason of said false and fraudulent representations so by said defendants made, and have wholly lost their said goods,” &c.</p> <p>There was a third and a fourth count which the defendants contended were not properly in the case.</p> <p>Herschell was defaulted. The two other defendants pleaded severally not guilty. /</p> <p>At the trial, which was before Parker C. J., there was no evidence that either Myers or Joseph made any representations to the plaintiffs, nor was either of them present when the goods were purchased, or at any other time; but there was evidence tending to prove an intimacy and connexion between the three defendants, and a knowledge of the purchase made by Herschell, and a participation in the disposition of the goods after they were purchased.</p> <p>The jury were instructed, for the purpose of obtaining a verdict upon the facts, that if they were satisfied from the evidence, that there had been, previous to the purchase, an agreement or confederacy between both Myers and Joseph, or either of them, and Herschell, to cheat and defraud the plaintiffs by such representations as were set forth in the declaration, and which were proved to have been made by Her-schell, and that it was part of the agreement and confederacy that Herschell alone should make the representations, they might find both or either of them guilty, according as the evidence might apply to both or either; but that unless they were thus satisfied they must acquit them, even though they should be satisfied that after the purchase they assisted Her-schell in fraudulently disposing of the goods and shared with him in the proceeds.</p> <p>A verdict having been returned against both Myers and Joseph, they moved for a new trial on the ground that the verdict was against law.</p> <p>because evidence had been admitted to prove a conspiracy, when no conspiracy was set out in the declaration. This is not an action of conspiracy or in the nature of conspiracy, but an action of the cas.e for making fraudulent representations. These are distinct causes of action, and are to be set out accordingly. In conspiracy the agreement to defraud is the crime, whether any act is done in pursuance of it or not; and this was indictable at common law. The offence in the other case consists in getting the goods upon the false and fraudulent pretences; which was not indictable until St. 1815, c. 136, was passed. Other distinctions might be pointed out. Regina v. Best, 2 Ld. Raym. 1167 ; g. C. 1 Salk. 174 ; Robinson’s case, 1 Leach, (3d ed.) 44; Commonwealth v. Warren, 6 Mass. R. 72, 74; Commonwealth v. Judd, 2 Mass. R. 329 ; The King v. Mason, 2 T. R. 581; Subley v. Mott, 1 Wils. 210. There is a dif-,^ ference between making fraudulent pretences and causing them' to be made ; and great nicety is required in setting out such (1) pretences so that the allegations and the proof may correspor Resc v. Douglass, 1 Campb. 212 ; Rex v. Plestow, ibid. ^ Rex v. Perrott, 2 Maulé & Sel. 379. No case goes Í than that of Rex v. Young et al., 3 T. R. 98, in imputing . one the fraudulent pretences of another, and there all the defendants were present when the pretences were made. 3 Chit. Grim. Law, 999. A conspiracy may be proved from the several acts of the parties at different times, but in an action for obtaining goods on a joint fraudulent misrepresentation, only the res gestee at the time are admissible in evidence. A false affirmation is a several act, and two persons cannot be indicted together for perjury; Rex v. Phillips, 2 Str. 921 ; and yet if a suborner should be joined in such an indictment with the person who actually makes the false affirmation, the maxim, qui facit per alium &c., would apply with as much force as in the case before the Court. An acquittal of the defendants, in this action, would not be a bar to a future action for the conspiracy.</p> <p>said it was immaterial whether a conspiracy were alleged or not, if overt acts were set out and proved, by which the plaintiffs were injured. Skinner v. Gunton, 1 Wms’s Saund. 228, and note 4. The acts of one of the defendants done in pursuance of an agreement with the others, are the acts of all, and they may be alleged according to their legal effect. In treason and trespass it is well settled, that the act of A done by command or advice of B, may be set forth as the act of B ; and the same principle is applicable in many other cases of torts, and also in cases of contract. 1 Chit. PI. 67, 181, 381 ; Paley on Princ. and Ag. 231; Com. Dig. Trespass, C; Starkie on Crim. PL (Amer. ed.) 36, 88, 89; Rex v. Stone, 6 T. R. 527 ; Fost. Cr. L. 350; Brucker v. Fromont, 6 T. R. 659 ; 2 Chit. PI. 281, note ; Jones v. Hart, l Ld. Raym. 738; Rex v. Johnson, 7 East, 65 ; Harding v. Greening, 1 B. Moore, 477; Rex v. Hunt, 2 Campb. 583; Rex v. Cope, 1 Str. 144; Woodgate v. Knatclibull, 2 T. R. 148 ; Gardner v. Preston, 2 Day, 206 ; Rex v. Brisac et al., 4 East, 164; Young v. The King, 3 T. R. 105, 107; Patten v. Gurney, 17 Mass. R. 182; Barker v. Braham et al. 2 W. Bl. 866 ; Parsons v. Lloyd, ibid. 845 ; Robinson’s case, 1 Leach, 45 ; The Coalheavers’ case, ibid. 76 ; Collins et ah v. Commonwealth, 3 Serg. & Rawle, 220 ; Commonwealth v. Gillespie, 7 Serg. & Rawle, 769; Rex v. Salter, 5 Esp. R. 125 ; 2 Starkie on Evid. 54, 403; 3 id. 1565, 1581, 1582.</p> <p>cited 2 Stark, on Evid. 563; 2 East’s P. C. 973; Steioart v. Dickens, Stark. Crjm. PI. 92, note; 3 Stark, on Evid. 1526.</p>

<p>The defendant gave to L a bill of parcels of certain goods, and a certificate that he held them for L on storage. The bill was receipted, L having given his negotiable note for the amount. Afterwards L offered to cancel the contract, if the defendant would return the note 5 to which he agreed. The .note was then in a bank, having been discounted for the defendant, but some days afterwards the defendant tendered it to L and requested him to cancel the contract 3 but L had in the mean time assigned the goods to the plaintiffs, his creditors, informing them however of the conversation relative to cancelling the contract. In trover by the assignees it was held, that the defendant was estopped to say he never had any such goods 5 that the property vested in L 5 that the defendant had no lien for the price of the goods 5 that the contract was not rescinded, it having been executed 5 and that there was no resale to the defendant, but at most only a conditional agreement to reconvey, which not being in writing, &c., was void by the statute of frauds.</p>

<p>This was an action of assumpsit on a policy of insurance, underwritten by the defendants, on property on board the ship Panther. One question in the case was, whether the damage done to the property was occasioned by the ship’s bilging, so as to make the defendants liable for a particular average, within the meaning of the following clause in the printed part of the policy, viz. “ And it is further agreed be tween the parties, that the assurers are not liable for any par tial loss on salt, grain, hemp, flax, fish, fruit, hides, skins, oi other goods that are esteemed perishable in their own nature, but the owners of such shall recover on a general average, and on a particular average when the damage happens by stranding or bilging, provided such damage amount to seven per cent.”</p> <p>In some depositions used at the trial it was stated, tnat the ship, laden with a cargo of wheat, hides, and tallow, encountered a tremendous hurricane, which threw her on her beam ends, by which she strained excessively in the larboard waist and bilge, lost her main and mizen masts, fore-topmast, and rudder, and with the water admitted into the ship by thus straining and also down the mast-coats and companion way, the after part of which was stove in, she righted with six and a half feet water in the hold, having remained about ten minutes on her beam ends. The cargo was greatly shifted and damaged on the larboard side. After the ship righted, the spars got under her bottom, so that they could not be cleared away for several hours, and thumped under her stern, so as to take off a number of sheets of copper, and one plank in the counter was almost stove through by the spars striking against it, whereby a considerable quantity of water was let into the vessel ; and the bilge and water-way seams were opened by the straining of the ship, whereby a great quantity of water was let in. The ship leaked but little after the wreck of the spars was cleared away.</p>

<p>This was an action of assumpsit on a policy of insurance, underwritten by the defendants, on property on board the ship Panther. One question in the case was, whether the damage done to the property was occasioned by the ship’s bilging, so as to make the defendants liable for a particular average, within the meaning of the following clause in the printed part of the policy, viz. “ And it is further agreed be-tween the parties, that the assurers are not liable for any partial loss on salt, grain, hemp, flax, fish, fruit, hides, skins, or other goods that are esteemed perishable in their own nature, but the owners of such shall recover on a general average, and on a particular average when the damage happens by stranding or bilging, provided such damage amount to seven per cent.”</p> <p>In some depositions used at the trial it was stated, that the ship, laden with a cargo of wheat, hides, and tallow, encountered a tremendous hurricane, which threw her on her beam ends, by which she strained excessively in the larboard waist and bilge, lost her main and mizen masts, fore-topmast, and rudder, and with the water admitted into the ship by thus straining and also down the mast-coats and companion way, the after part of which was stove in, she righted with six and a half feet water in the hold, having remained about ten minutes on her beam ends. The cargo was greatly shifted and damaged on the larboard side. After the ship righted, the spars got under' her bottom, so that they could not be cleared away for several hours, and thumped under her stern, so as to take ofF a number of sheets of copper, and one plank in the counter was almost stove through by the spars striking against it, whereby a considerable quantity of water was let into the vessel ; and the bilge and water-way seams were opened by the straining of the ship, whereby a great quantity of water was let in. The ship leaked but little after the wreck of the spars was cleared away.</p> <p>contended that any accidental injury to the bottom of a ship from the perils of the sea, by which water is let in, is a bilging. The intention of the policy in enumerating certain perishable articles, was to draw a distinction between damage arising from the nature of the articles and sea damage. For the meaning of the word bilge he referred to the Dictionaries of Skinner, Bailey, Kenrick, Sheridan, Johnson, and others, to the Cyclopaedias of Rees and Nicholson, and to the case of Peele v. Merchants’ Insurance Company, recently determined in the Circuit Court of the United States before Mr. Justice Story. [3 Mason, 39-] He cited also Burnett v. Kensington, 7 T. R. 210.</p> <p>referred to the same Cyclopaedias and to the Encyclopaedia Britannica, the Glossary in Bowditch’s Practical Navigator, p. 235, Falconer’s Marine Dictionary, and the case of Burnett v. Kensington, to show that a ship is not bilged, unless the bottom is broken or a plank started, so as to give a free passage for the water, and not merely to admit a leakage.</p>

<p>Where a right m equity of redeeming mortgaged real estate is sold on execution to a creditor of the mortgager, the mortgager is entitled to redeem such right in equity upon repayment of the purchase money and interest, without paying other demands of the purchaser against him.</p> <p>A tender of the purchase money must be unconditional 5 and where the mortgager ot fered the money, but insisted on the purchaser's executing a release of the right in equity, which he refused to do, the tender was held insufficient.2</p>

<p>A grants land to JB in fee with warranty, and then mortgages the same land to C, who has no notice of the former conveyance, and whose deed is recorded before JB's. After B?s deed is recorded, C assigns the mortgage to the demandant, who releases to A and at the same time takes back from him a new mortgage with warranty. B dies, leaving A and the tenant his heirs, having been in possession during the time of all these conveyances. Held. that the release to A did not give him an instan taneous seisin so as to enable him to reconvey an estate, but that it operated by estoppel a discharge of the first mortgage, leaving B an unincumbered fee; but that when the land came to A and the tenant by descent, the demandant took A;s moiety by estoppel by virtue of the second mortgage.</p> <p>A deed creating an estoppel to a party who undertakes to convey by it land in which he has nothing at the time, but to which he afterwards acquires a title by descent or purchase, passes an interest and a title from the moment such estate comes to the grantor, not only against the grantor and those claiming under him, but also against strangers who come in after the estoppel.</p> <p>Where the demandant in a writ of entry makes out his title to a part only of the land demanded, he shall have judgment for that part.1</p> <p>Where a mortgagee recovered in a writ of entry against a stranger, the judgment rendered was conditional. See St. 1785, c. 22, § 1.</p>

<p>A grants land to B in fee with warranty, and then mortgages the same land to C, who has no notice of the former conveyance, and whose deed is recorded before B?s. After B's deed is recorded, C assigns the mortgage to the demandant, who releases to A and at the same time takes back from him a new mortgage with warranty. B dies, leaving A and the tenant his heirs, having been in possession during the time of all these conveyances. Held, that the release to A did not give him an instantaneous seisin so as to enable him to reconvey an estate, but that it operated by estoppel a discharge of the first mortgage, leaving B an unincumbered fee 5 but that when the land came to A and the tenant by descent, the demandant took AJs moiety by estoppel by virtue of the second mortgage.</p> <p>A deed creating an estoppel to a party who undertakes to convey by it land in which he has nothing at the time, but to which he afterwards acquires a title by descent or purchase, passes an interest and a title from the moment such estate comes to the grantor, not only against the grantor and those claiming under him, but also against • strangers who come in after the estoppel.</p> <p>Where the demandant in a writ of entry makes out his title to a part only of the land demanded, he shall have judgment for that part.1</p> <p>Where a mortgagee recovered in a writ of entry against a stranger, the judgment rendered was conditional. See St. 1785, c. 22, § 1.</p>

<p>Two defendants in an actios 'f trespass joined in their plea, and in the Court of Cora* mon Pleas judgment was giv ja in favor of one and against the other. The pJaintiSf appealed from both judgments, and in this Court the judgment was in favor of bcth defendants. Held, that they were not entitled to several costs.</p>

<p>A. gave his note in payment for goods purchased by B through a broker, and took the goods to sell on commission as security for his liability. After he had sold them at a profit, but before he had received payment for them, B was summoned as a trustee of the broker, who was to have part of the net profits. Held, that he was not chargeable, it being contingent whether any net profits would ever come into hia hands.</p> <p>If, after the service of a trustee process by leaving a copy, the person summoned shall, bond Jidef before actual notice of the service, make a payment, or give or accept a negotiable security in favor of the principal debtor, which shall have been negotiated before notice, he will be protected against the trustee process. Semble.1</p> <p>Aliier, where he has reason to suppose such service has been made, and he neverthe less makes a payment &c. with a view to assist the principal debtor in defeating his creditors of their debts. Semble,</p>

<p>A. codicil fraudulently destroyed was established upon parol proof of its contents.</p>

<p>A codicil fraudulently destroyed was established upon parol proof of its contents.</p>

<p>Insurance was made on goods, the produce of the United States, on board an American vessel, “ at and from Boston to St. Pierre's Miquelon, at and from thence to Boston, with liberty to proceed to St. John's, Newfoundland.” The assured went to St. Pierre's, where he sold part of the goods, and with the residue he proceeded to St. John's, not knowing that such voyage was prohibited, and there the property was seized and condemned because it had not been brought directly from the United States. It was held, that the loss was not covered by the policy, the terms being general, and it not being known to the insurer that an illicit voyage was intended to be insured.</p>

<p>This was an action for money had and received, brought to recover back the amount of the testator’s subscription to a policy of assurance upon the schooner Jefferson, belonging to the defendants, on which a total loss had been paid on the 18th of September, 1813. The money was sought to be recovered back, on the ground, that at the time when the policy was subscribed the loss of the vessel was known to one or both of the defendants, and so that the insurance was fraudulently obtained. The defen lants pleaded the general issue and the statute of limitations To this last plea the plaintiff replied, setting forth the fraud practised by the defendants and averring that the testator did not discover it until within six years before the commencement of the suit; to which there was a general demurrer.</p> <p>At the trial of the cause the judge admitted in evidence the deposition of Betsy Knox, taken in perpetuara, before the institution of this action, at the request of one Homer and others, underwriters on the same policy, but not at the request of the plaintiff or his testator. If the deposition was improperly admitted a new trial was to be granted.</p>

<p>This was an action for money had and received, brought to recover back the amount of the testator’s subscription to a policy of assurance upon the schooner Jefferson, belonging to the defendants, on which a total loss had been paid on the 18th of September, 1813. The money was sought to be recovered back, on the ground, that at the time when the policy was subscribed the loss of the vessel was known to one or both of the defendants, and so that the insurance was fraudulently obtained. The defendants pleaded the general issue and the statute of limitations. To this last plea the plaintiff replied, setting forth the fraud practised by the defendants and averring that the testator did not discover it until within six years before the commencement of the suit; to which there was a general demurrer.</p> <p>At the trial of the cause the judge admitted in evidence the deposition of Betsy Knox, taken in perpetuam,, before the institution of this action, at the request of one Homer and others, underwriters on the same policy, but not at the request of the plaintiff or his testator. If the deposition was improperly admitted a new trial was to be granted.</p> <p>The plaintiff waives the tort and sues in assumpsit. The promise, if any, was made in 1813. The plaintiff says he ought not to be barred by the statute of limitations, because the testator paid the money in consequence of a fraudulent concealment; but he ought to state that fraudulent means were used after the action accrued, such as falsifying records or accounts, &c., to prevent the testator from coming at a knowledge of the facts. If this replication is sustained it will repeal the statute, so far as concerns actions founded on fraud, for a party will have only to say that he did not discover the fraud until within six years. But does this present an issue which can be tried at common law ? And what is a discovery ? Shall it be full proof of fraud ? Certainly not; it is enough if the inference of fraud may be drawn from circumstances . A party is not to say that he will pay the money and will get proof of one circumstance one year and of another the next, and so on, till his evidence shall be sufficient to convince a jury of the fraud, and then he will recover the money back. There is a peculiar propriety in applying the statute to cases of this kind, because fraud is commonly proved or disproved by many little circumstances. The question is not whether fraud, if proved, shall be protected, but whether evidence of it shall be admitted after such a lapse of time.</p> <p>The deposition of Betsy Knox should have been rejected, beeause it was res inter alios acta. It was an answer to sut questions only as were put to the witness, and it is to be considered as a partial representation of facts in regard to persons who had not an opportunity to be present. In a deposition taken at the request of Homer, it would have been impertinent in the defendants to put interrogatories relating to the claim of the plaintiff’s testator. Berkeley Peerage Case, 4 Campb. 412.</p> <p>referred on the first point to Homer v. Fish et al., 1 Pick. 435, and the cases there cited ; and in regard to the deposition they relied on St. 1797, c. 35, § 8, which says that a deposition taken in perpetuam maybe “used as evidence in any cause to which it may relate.” In the provision in the same section, that the deposition shall be recorded in the registry of deeds of the county where the land lies, if it respects real estate, and if it relates to personal estate, in the registry of deeds of the county where the person lives for whose use it is taken, the place of recording is designated, merely that the deposition maybe recorded somewhere, without any intention to restrict the use of it to any particular person.</p>

<p>Scire facias against the defendant as bail of George Man ners to a writ issued from the Court of Common Pleas.</p> <p>The defendant pleaded in the Court of Common Pleas, 1. That Manners, at the time of the impetration of the original writ, was, and ever since had been, consul of the king of the United Kingdom of Great Britain and Ireland, duly accredited by the president of the United States ; and to this there was a general demurrer: — 2. JVieZ tiel record; and upon this an issue to the court was taken. The plaintiff produced the record of the judgment in the original suit of Hall against Manners, which stated that Manners appeared at the return term, in April 1823, and pleaded to the jurisdiction of the court, that he was consul, &c., and that cognizance of the action belonged to the District Court of the United States ; and the record further stated, that the action was continued to July term following for judgment final, and from thence to October term following to be defaulted ; and that at that term Manners made default, and thereupon judgment was rendered.</p> <p>The judgment of the Cpurt of Common Pleas on both issues was against the defendant Young ;• whereupon he filed his exceptions.</p>

<p>Assumpsit to recover the sum of 1000 dollars, with interest from the 10th of December, 1818.</p> <p>At the trial it appeared that the defendants, being in failing circumstances, on the 26th of February, 1817, assigned all their property, real and personal, to the plaintiffs and W. Lovering junior, in trust, in the first place, to pay ail bonds and debts owing from the defendants to the United States, and afterwards to pay other creditors in proportion to their respective debts, in case the property should be insufficient to pay the whole of such debts. This assignment was cancelled on the 25th of April, 1817, and a verbal agreement was then made, by which the assignees were still to hold the personal property in trust for the payment of the defendant’s debts, exclusive of those due to the United States, and at the same time a deed of mortgage, unaccompanied with any note or bond, was executed and delivered to the assignees, conveying certain real estate in fee, and conditioned to be void on payment of 20,000 dollars in one year. In consideration of the premises the assignees, under a letter of attorney from the creditors, on the same day executed and delivered to the defendants a release under seal of all demands by them represented. Three lots of land were mrposely left unincumbered by the mortgage, in order that they might be conveyed to the United States ; and lest the United States should not receive them in full satisfaction of their debt, it was agreed in writing, on the 21st of April, 1SJ7, by the creditors who executed the letter of attorney, that their attorneys might retain so much of the property placed in their hands as should be sufficient to indemnify themselves against any claim of the United States. The three lots mentioned were conveyed by the defendants to the United States in December, 1817, in part satisfaction of their debt, leaving a balance of about 10,000 dollars unpaid.</p> <p>On the 4th of June, 1818, the defendants submitted to the attorneys a proposal, in writing, to pay them, in six months from that date, a sum of money, as a final settlement, amounting to 43 per cent, of the demands which they held, together with 700 dollars as a compensation to the attorneys for their time and labor in the business, and to receive back all the property transferred to them. This proposal was accepted in the manner hereafter mentioned, and on the 10th of December, 1818, the attorneys received the stipulated sum, and released to the defendants all the property, excepting a parcel of land in Essex street included in the deed of mortgage, and at the same time signed a memorandum, written by W. Minot, the attorney of both parties, at the foot of the deed, acknowledging that the sum due thereon was reduced by settlement to 1000 dollars, to be paid in five years with interest, and promising not to sue or take possession under the mortgage within that period. The deed with this memorandum remained in the possession of the plaintiffs ; but a paper of similar import, signed by the plaintiffs, was delivered to the defendants. The land in Essex street was subject to a prior mortgage for about 14,000 dollars, and the prior mortgagee had entered and foreclosed within the five years mentioned in the memorandum. The defendants owned only an undivided moiety of that land, and in sundry estimates given by them to the plaintiffs the moiety was slated to be subjec-t to a mortgage for about 8000 dollars, instead of 14,000, they supposing that as they owned only half of the land, their interest in it would be liable for only half of the mortgage debt.</p> <p>Lovering testified that the attorneys at first declined acceding to the proposal of the 4th of June, 1818 ; that the defendants offered them 1000 dollars if they would accept it; that the witness still declined, but the plaintiffs were willing to accept on those terms ; whereupon the defendants promised to pay them 1000 dollars with interest, in five years after the contemplated settlement, and to give them collateral security on real estate ; that the ground of refusal on the part of the attorneys was, that in their opinion the property released would be insufficient to raise the 43 per cent, and pay the United States besides, in which case they supposed the United States might call upon them to make up the deficiency ; that the 1000 dollars was intended as an estimate of this risk, and to indemnify the plaintiffs, not only for any liability on that account, but also for any trouble or expense to which they might be put in resisting the claims of the United States, if any should arise ; that it was agreed that Cabot, one of the plaintiffs, should indemnify the witness against all such liability, receiving his share of the 1000 dollars ; in consideration of which the witness withdrew his objection, and signed the written proposal, in testimony of its acceptance ; and that the promise to pay the 1000 dollars, being made to the plaintiffs, was not inserted therein, because the promise contained in that paper was a promise to himself jointly with the plaintiffs.</p> <p>He further testified, that the memorandum of the 10th of December, 1818, at the foot of the mortgage deed, was made in pursuance of the verbal agreement of the 4th of June, and was intended to make the deed operate as the promised collateral security for the 1000 dollars ; and that in order to give it that effect, the attorneys, on the same 10th day of December, released all the property transferred to them, except the land in Essex street, and the witness assigned to Cabot all his remaining interest in the mortgage, for the nominal consideration of 250 dollars and a written obligation to indemnify him against the United States, and that the attorneys at the same time received from the defendants the sum agreed on, which (excepting the 't'OO dollars) they afterwards distributed among the creditors, requinng eacn creditor at the time of payment to execute a bond of indemnity to the plaintiffs against all claims of the United States.</p> <p>The jury returned a general verdict for the plaintiffs, on the ground, as they stated, that the consideration for the promise was as well an expected benefit to the defendants by the release of the property assigned, as the risk assumed by the plaintiffs.</p>

<p>Assumpsit for money had and received. Pleas, the geu eral issue and the statute of limitations.</p> <p>The defendant had been accustomed to make deposits in the Union Bank, and this action was brought on the ground that the bank had by mistake credited him with 1000 dollars more than he had deposited, and that in consequence he had overdrawn to that amount.</p> <p>At the trial the plaintiffs offered in evidence the leger and journal of the bank ; which were objected to by the defendant as incompetent evidence, but the judge permitted them to go t0 the jury-</p> <p>It appeared by the leger, that the items of cash put to the defendant’s credit in the month of November, 1817, when correctly added, amounted to 1000 dollars less than the actual footing ; and that the balance was so struck as to include this sum in that which was carried to his credit the ensuing month. The leger contained entries of debt and credit every month after, until February, 1824, when the dealings between the bank and the defendant ceased, there being then a balance in his favor of 12 dollars, 24 cents, which was paid on his check, the cashier saying, that the defendant would do what was right. A balance was struck at the end of every month, and the above-mentioned sum of 1000 dollars was included and carried forward in every account. By the actual entries for February, 1818, the defendant overdrew, on the 18th of that month, 421 dollars and 13 cents. If he ought to have been charged wit! the 1000 dollars, the amount overdrawn would be increased, and the balance of the preceding month, and also of divers subsequent months, would be against him.</p> <p>The journal contained similar items of charge and credit with the leger, except the footings at the end of each successive month ; and it was stated by the plaintiffs, and not denied, that if the sums drawn out or charged on one side, and the deposits on the other, were respectively added, commencing on the 1st of November, 1817, they would show, on striking a balance at the end of January, 1824, that the sum of 988 dollars, 76 cents, had then been overdrawn.</p> <p>The blotter kept by the receiving teller of the bank, and containing bis entries of the deposits, was admitted in evidence, though objected against by the defendant. The person who kept this book was alleged to be insane, and his handwriting was therefore allowed to be proved by the testimony of Nathaniel Emmons. The entries in the blotter appeared to correspond with those in the journal, as it respects the items of credit given by the bank to the defendant.</p> <p>In consequence of a notice upon the defendant to produce his deposit books (usually called bank books) he made affidavit, that he had searched for them, but that he was unable to find any except two, which he brought into court, commencing in 1823.</p>

<p>By the shipping articles of a whaling ship the seamen were to have shares of the net proceeds of the oil to be obtained, in lieu of wages. According to the usage of that business, the master supplies the seamen, when abroad, with necessary clothing, and retains from their shares respectively the amount advanced 5 and this, whether they return in the ship or desert, and whether their shares are or are not assigned. Held, that this was a reasonable usage, and tnat the master, by putting the oil, marked with the ship’s mark, on a wharf, whence part of it was taken by the plaintiffs, but afterwards returned, and by delivering it up to a genial agent for settling the voyage to be sold, did not part with his lien.</p> <p>Such seamen, after assigning their shares, forfeited them by desertion, but the shipowners nevertheless authorized their agents to pay the shares to the assignee, making deductions for the expenses of procuring other seamen 3 and the agents gave the assignee a written promise, upon which *hey were afterwards held personally liable to pay him the shares. Whereupon they brought an action of assumpsit in their own names against the master, to whom such shares had been paid over by the general agent for settling the voyage, and th % action was sustained for the balance after deducting the amount of the master's advances.</p>

<p>Trespass de bonis asportatis. Plea, that the property of the goods, at the time of the taking, was in one Stevens, and not in the plaintiff; that the defendant was a deputy sheriff", and that he took the goods by virtue of a writ of attachment against Stevens in favor of one Shattuck. Replication, that the defendant took the goods of his own wrong, traversing the property’s being in Stevens, and concluding with a verification. Rejoinder, that the property was in Stevens, and concluding to the country ; and issue joined thereon.</p> <p>Ward C. J. of C. C. P. was of opinion, that the issue ought to have been taken upon the property’s being in the plaintiff", but inasmuch as a finding that the property was in Stevens would have been decisive against the plaintiff", he refused to order a repleader before a trial; and the case was committed to the jury, who returned a general verdict that the defendant was guilty, and assessed damages. It not being observed that the verdict did not follow the issue, it was affirmed. Upon a motion by the defendant, which was resisted by the plaintiff", the juuge granted a new trial and ordered that the parties should replead.</p> <p>To these several determinations the plaintiff" filed his exceptions.</p>

This was an action of debt upon a probate bond given by Joseph Head as principal, and the other defendants as his sureties, upon letters of administran 3n with the will annexed being granted to him on the estate of Thomas Stewart; and the suit was prosecuted for the benefit of Robert Lenox, a citizen of New York, James Sheafe, a citizen of New Hampshire, and Thomas Bruce, a subject of Great Britain and living in London. their claim ; that on the 8th of January, 1822, the…

<p>Implied notice of a prior unregistered deed, to avoid a subsequent deed or attachment, must be not merely a probable, but a necessary and unquestionable, inference from the facts proved.</p> <p>Such inference cannot in all cases be made from an open, peaceable, and exclusive possession. Thus, where a person owning and in possession of part of a lot of land not divided by any partition fence, purchased the residue, consisting principally of woodland and which had not been occupied by the grantor, repaired the fence round the lot, depastured cattle in it, sold trees from the part purchased, and removed an old hovel standing on the same part, it was held, that these facts did not imply notice. 0</p> <p>Whether if the evidence of possession be such as to raise a legal presumption of notice, such presumption may not be rebutted by other evidence, quaere.</p>

<p>This case came before the Court upon an agreed statement of facts.</p> <p>On the 13th of January, 1741, the legislature granted to seventy-six petitioners a township, to be laid out in seventy-nine shares, one of which was to be for the first settled mm ister> one f°r the ministry, and one for the school, on certain conditions which were afterwards performed. The proprietors laid out the township in shares accordingly, built a meetinghouse, and in 1764 settled and ordained the Rev. Daniel Collins, who was of the congregational order, as their first minister. He entered upon the share appropriated for the ministry, and occupied it until the 18th of May, 1797, when it was sold in virtue of a resolve of the legislature of the 15th of February, 1797. The township was incorporated in 1765, by the name of Lanesborough.</p> <p>At a town meeting in May 1796, a vote was passed, all denominations of Christians that were present voting, tha* the town would petition the legislature that the ministry land might be sold, and the proceeds be kept as a fund for the benefit of the congregational society and the protestan! episcopal society in the town, the congregational to have four-fifths and the episcopal one-fifth of the income for the support of their several ministers and their successors for ever ; and that G. Wheeler and W. Hubbell (both members of the congregational society) should be a committee to present the petition. This committee accordingly presented a petition to the legislature in May 1796, which was continued to the next session to be held in February, 1797.</p> <p>At a town meeting held in September 1796, for the purpose. of ascertaining whether the town would not reconsider the former vote, a committee was appointed, consisting of three congregationalists, three episcopalians, and three baptists, who at a town meeting held in November following, reported, that Mr. Collins should receive out of the income of the money arising from the sale of the ministry land, 66 dollars, 67 cents annually, during his ministry, in addition to his salary, as a compensation for relinquishing the land, and that the same sum should remain to his successors of the congregational order forever ; and that of the remainder of the income Rfr. Collins and his successors should have two-thirds, and the Rev. Daniel Burhans, minister of the protestant episcopal church, and his successors. should have the other third. A vote was passed in conformity to this report.</p> <p>On the 15th of February, 1797, the legislature passed a resolve, authorizing Mr. Collins and the selectmen of the town for the time being, to sell the ministry land, and put the proceeds of the sale on interest, the income to be applied, under the direction of such persons as the inhabitants of the town might from time to time appoint for that purpose, in the manner contained in the vote last mentioned ; with a proviso, that it should be in the power of the legislature, on the application of any denomination of Christians having a settled minister in the town, thereafter to make a new appropriation of the income.</p> <p>Pursuant to this resolve the land was sold in March 1797 ; and notes were taken payable to the selectmen and their successors, and the income of the fund was applied, agreeably to the resolve, up to January 1824. In November 1797, the treasurer of the town was appointed trustee of the fund, and the notes were delivered in.to his hands, to be renewed as they became due. After this period the notes were taken, some in the name of the inhabitants of the town, and some in the name of the treasurer and his successors.</p> <p>On the 8th of June, 1814, upon an application made, without any authority from the town, by Mr. Collins, Mr. Purdee, minister of the protestant episcopal church, and the selectmen, two of whom were congregationalists and one an episcopalian, the legislature, without issuing any order of notice to all persons interested, passed a resolve, repealing the proviso before mentioned and confirming the appropriation of the fund and income as already established.</p> <p>In May 1818, Mr. Sheldon, a minister of the congregational order, was settled as a colleague pastor with Mr. Collins over the congregational church and society, and he has continued to be their minister ever since. Mr. Collins died in August 1822. In April 1820, the plaintiff was settled and duly licensed by the bishop as the protestant episcopal minister, and from that time to the present he has officiated as such. The protestant episcopal society was organized in 1767, and on the 3d of February, 1823, was incorporated by legislature.</p> <p>The congregational and episcopal societies made use of the corporate capacity of the town, and of the town officers, to raise and collect money for the salary of their ministers and for repairing and painting their meetinghouses, before 1797, occasionally, and uniformly afterwards until 1819, when the episcopal society raised money for these purposes by themselves ; but this society voted and acted upon all other parochial subjects, and raised money for all other parochial purposes, by their own votes and proceedings.</p> <p>In 1796, when the two votes were passed for obtaining leave to sell the ministry land, a majority of the voters were of the congregational'order. There was then no baptist society in the town, and but a few persons of that persuasion. These few were exempted from taxation for the support of public worship in the other religious societies.</p> <p>In December, 1824, the inhabitants of the town belonging to the congregational society organized themselves as a parish, pursuant to St. 1786, c. 10, and elected parish officers, viz. three assessors, a prudential committee, a cleric, a collector and a treasurer. The defendant, who was treasurer of the town and had in his possession the notes constituting the ministry fund, was chosen treasurer of the parish, and appointed trustee of the fund, and was directed to retain it in his hands for the use of the parish. In January 1825, the plaintiff demanded 90 dollars and 23 cents of the income, as granted to him by the resolve first mentioned, which the defendant refused to pay, and to recover which this suit was brought.</p> <p>If the Court should be of opinion, that in any form of action the plaintiff was entitled to recover, the defendant was to be defaulted; otherwise the plaintiff was to become nonsuit.</p>

<p>This was an action of debt upon an administration bond, brought in the name of the judge of probate for the countv of Franklin for the benefit of Epaphroditus Champion.</p> <p>The defendants pleaded a general performance of the condition. The plaintiff replied, that B. Leonard the intestate, on the 27th of October, 1820, was seised in fee simple of certain parcels of land in Conway ; that on the 28th he fraudulently conveyed them to Wing (the administrator) with intent to defraud and deceive his creditors of their just debts ; that this real estate was at the time of Leonard’s death liable for the payment of his debts, and when administration was granted to Wing, on the 15th of July, 1823, the same real estate came to the knowledge and into the hands and possession of Wing as the estate of Leonard, and was liable by law to be inventoried as Leonard’s estate, and in case the personal estate were insufficient for the payment of his debts, to be administered by Wing for the payment of such debts ; that the personal estate was insufficient; that Wing represented Leonard’s estate to be insolvent; that commissioners were appointed ; that Champion’s debt was due on the 1st of October, 1820, and was proved under the commission and allowed; that the doings of the commissioners were returned into the probate court, ratified and approved ; that the estate of Leonard, exclusive of the real estate mentioned, was in fact insolvent ; yet that Wing, well knowing the premises, did not inventory the same real estate. To this the defendant demurred, and assigned causes of demurrer.</p>

Assumpsit upon a joint and several note given by the defendants to the plaintiff. At the trial the counsel for the defendants offered to prove, by the oath of William Putnam, under St. 1783, c. 55, § 2, that the note was given for a usurious consideration. The plaintiff objected that he was not obliged by law to repel this defence by his oath, unless both defendants should offer to swear, and if required, should actually swear to the alleged usury.

<p>Where a contract is attempted to be avoided or enforced by the oath of a parly, pursuant to St. 1783, c. 55, § 2, against usury, all the debtors or all the creditors must offer to swear, and if required, actually swear, respectively, that there was or was not usury.</p>

This was an action of assumpsit, brought originally before a justice of the peace, to recover expenses incurred in the support of Miriam Pierce, a pauper, whose settlement was alleged oy the plaintiffs to be in Charlemont.

This was an action of assumpsit, brought originally before a justice of the peace, to recover expenses incurred in the support of Miriam Pierce, a pauper, whose settlement was alleged by the plaintiffs to be in Charlemont.

<p>The principle, that after a partnership is dissolved, one partner, dealing with a person who has no notice of the dissolution, may bind his copartner, applies only to transactions in the usual course of business.</p> <p>Thus, wkere a partner having absconded, his copartner told the holder of a note against them not then due, that they were going to fail, and renewed the note in the name of the firm, making it payable on demand in order that the creditor might secure himself it was held, that this note did not bind the absconding partner, notice of the dissolution being either not necessary or being implied by the transaction itself.</p>

<p>This was assumpsit against the defendant as indorser of a promissory note, payable on the 1st of November, 1822, at the Merchants bank in the city of New York. A trial was had upon the general issue.</p> <p>The plaintiffs produced the deposition of W. S. Rossiter, the cashier of the Eagle bank, stating that on the 1st of November the plaintiffs owned the note. Also the deposition of W. C. Mulligan, a notary public at New York, stating that on the 1st of November, which was Friday,, he presented the note at the Merchants bank for payment, which was refused ; that on the same day a notice was made out and examined by the deponent, directed to Chapin, and enclosed in a letter directed to Rossiter, at New Haven, and delivered to the deponent’s clerk to be put into the post-office in New York; that the deponent did not know the place of residence of Chapin, and therefore he sent the notice to Rossiter, at whose request the demand of payment had been made.</p> <p>They produced also the deposition of J. S. Barnard, a clerk in the Eagle bank, stating that on Monday, the 4th of November, he received from the president of the bank a notice of the non-payment signed by Mulligan, with directions to go to Hartford with it and ascertain Chapin’s place of residence, and to put the notice into the post-office at Hartford ; which he did a little before 9 o’clock on the evening of the same day, bhe mail being then not closed, to be forwarded to Springfield where Chapin resided.</p> <p>It was proved that the mail from New York to New Haven and Springfield closes every day at 7 A. M. and leaves at 8, reaches New Haven the same evening, and Springfield, on Monday, Wednesday and Friday, at 11 the next morning, on Tuesday, Thursday and Saturday, at 3 or 4 P. M. ; that a letter put into the mail at New Haven at any time on Sunday or Sunday evening reaches Springfield on Monday at 11 A. M. ; and that a letter put into the post-office at Hartford on Monday evening before the mail closes reaches Springfield on Tuesday at 3 or 4 P. M.</p> <p>A verdict was directed for the plaintiffs, subject to the opinion of the Court.</p>

<p>Assumpsit upon a promissory note made by the defendant, payable to W. Putnam or order, and by him indorsed to the plaintiff. Plea, the general issue.</p> <p>At the trial, before Putnam J., the defendant offered the indorser as a witness, to prove that the consideration of the indorsement was usurious ; but he was rejected as incompetent, on the authority of Manning v: Wheatland, 10 Mass. R. 502.</p> <p>The indorser had released to the defendant all his claims upon the note, and the defendant offered to prove by him that the note was pledged to the plaintiff as collateral security for a debt much less than the amount of it, contending that the plaintiff ought not to recover more than the amount of such debt. This evidence was considered as irrelevant and was rejected.</p> <p>A verdict was returned for the plaintiff, but if either of these determinations was incorrect, a new trial was to be granted.</p>

<p>This was an action of debt on a bond for 600 dollars, the condition of which, as set forth on oyer, was as follows : — “ The condition of the foregoing deed is this, that if the said Miner shall from this time cease to have any concern in the business of boating on Connecticut river, and shall give them all the freighting of his goods, wares and merchandise up and down Connecticut river, at the customary freight, and to be paid in goods at the usual price, and shall aid and countenance them in their business, and shall not directly or indirectly promote any other boatman to compete with them in the business of boating, then the bond to be void,” &c.</p> <p>The defendant pleaded performance generally. The plain tiffs replied, assigning as a breach, that the defendant did encourage other boatmen (naming sundry persons) to compete with the plaintiffs. The defendant demurred specially, but on the argument waived the causes of demurrer.</p> <p>The cause was spoken to at this term, but was afterwards argued in writing by E. H. Mills, Rice and J. H. Jlshmun for the defendant, and by Dwight and Bliss junior for the plain-</p>

<p>Upon a complaint under St. 1785, c. 66, § 2, (Revised Slat. c. 49, § 1,) for the maintenance of a bastard child, evidence that the general character of the complainant for chastity, previous to her connexion with the respondent, was bad, and that she had previously had frequent criminal intercourse with other persons, is not admissible for the purpose of impeaching her credit as a witness.</p> <p>In such a prosecution the complainant entered her complaint in the Court of Common Pleas by attorney, but pleaded by guardian $ and upon certiorari after judgment it was presumed that she was of age, the contrary not appearing and not being inferrible from her pleading by guardian.</p> <p>Such a complaint purporting to be made pursuant to the statute, but not concluding with contra fot'mam statuti, was held sufficient.</p> <p>If a case is brought before this Court by exceptions to the directions of the Court of Common Pleas and this Court refuses to take cognizance of the exceptions, it is competent to the Court of Common Pleas to bring the case forward by entering the continuances, and to enter up judgment.</p> <p>Upon certiorari it will be presumed, in favor of such judgment, that the case was not brought forward without notice to the party who took the exceptions, nothing to the contrary appearing on the record</p>

<p>This was an action to recover expenses incurred in the support of Matthew Watson, a pauper whose settlement was alleged to be in Leicester. The defence was, that Watson had gained a settlement in Montville, in Maine, before the separation of that State from Massachusetts, according to the provision in’ St. 1793, c. 34, that “any person &c., having an estate of inheritance or freehold in the town, &e., of the clear yearly income of three pounds [ten dollars], and taking the rents and profits thereof three years successively, &c., shall thereby gain a settlement therein. ”</p> <p>At the trial, which was before Lincoln J., the defendants proved, that Watson purchased an estate in Montville in January 1808, for 300 dollars, and sold the same in May 1811, for 1000 dollars. The counsel for the defendants requested the judge to instruct the jury, that in estimating the value of the yearly income they might take into consideration the increased and increasing value of the estate, arising from its local situation. But, on the contrary, he instructed them, that they must determine the question upon the evidence of the real value of the income, and that this income by the rents and profits of the estate must, each and every of the three years, be of the amount of at least ten dollars.</p>

This case came before the Court upon a statement of facts. On the 9th of November, 1822, the plaintiffs sued out a writ of attachment against J. Leland, J. Morse, S. Hutchinson and L. Morse as surviving partners of N. F. Morse, and delivered it to D. Sherman, a deputy of the defendant, who was then sheriff of this county, and Sherman on the same day at one o’clock P. M. attached property of Leland and the rest as such surviving partners, and returned the attachment on the…

<p>This was an action to recover éxpenses incurred in the support of Matthew Watson, a pauper whose settlement was alleged to be in Leicester. The defence was, that Watson had gained a settlement in Montville, in Maine, before the separation of that State from Massachusetts, according to the provision in St. 1793, c. 34, that “ any person &c., having an estate of inheritance or freehold in the town, &c., of the clear yearly income of three pounds [ten dollars], and taking the rents and profits thereof three years successively, &c., shall thereby gain a settlement therein.”</p> <p>At the trial, which was before Lincoln J., the defendants proved, that Watson purchased an estate in Montville in January 1808, for 300 dollars, and sold the same in May 1811, for 1000 dollars. The counsel for the defendants requested the judge to instruct the jury, that in estimating the value of the yearly income they might take into consideration the increased and increasing value of the estate, arising from its local situatio.;. But, on the contrary, he instructed them, that they must determine the question upon the evidence of the real value of the income, and that this income by the rents and profits of the estate must, each and every of the three years, be of the amount of at least ten dollars.</p>

<p>Partnership property was attached upon a writ containing the names of three only out of four surviving partners, and the next day the name of the fourth was inserted and a new attachment made upon the same property 5 but in the mean time another creditor had attached the property upon a writ against the four partners. Held, that the first attachment was vacated as against the second attaching creditor.</p>

<p>Where a minor son makes a contract for his services on his own account, and his father knows of it and makes no objection, there is an implied assent that the son shall have his earnings 5 so that, unless there is a design to defraud the father’s creditors, the son’s employer will not be liable in a process of foreign attachment as the father’s trustee.</p>

<p>This was an action on the case in the nature of waste, for cutting down trees on land assigned to the wife of the defendant as her dower in the estate'of her former husband Nathan Newton. The cause was tried before the chief justice.</p> <p>The plaintiff, through several mesne conveyances from the heirs of Newton, held the reversionary interest in the land by deed of mortgage, made on the 17th of June, 1815, to secure the payment of a sum of money on or before the 17th of June, 1816. He was put in possession in May 1823, by virtue of a writ of habere facias issued on a judgment recovered in a suit on the mortgage, having never before entered under the mortgage, and this action was commenced in August following. The acts complained of were done before the plaintiff was so put in possession.</p> <p>The defendant objected that this action could not be maintained by a mortgagee, until after a foreclosure, or until after an entry for condition broken, or at least not without an entry under the mortgage and actual possession ; nor in either case for acts done before possession taken ; but the objection was overruled.</p> <p>The defendant offered to prove that the trees were out down by other persons, mere trespassers, without his consent or knowledge ; but the evidence was rejected.</p> <p>A verdict was returned for the plaintiff, subject to the opinion of the Court in regard to the foregoing determinations.</p>

<p>Trespass quare clausum fregit. Plea, soil and freehold in Jacob and Susannah Willard.</p> <p>The plaintiff claimed by virtue of an extent upon the land on the 27th of April, 1822, as the property of R. Bathrick.</p> <p>Susannah Wheeler being the owner of the land, in 1807 in termarried with J. Willard, whereby he became seised of a life estate therein. On the 16th of June, 1807, J. Willard conveyed by deed of release and quitclaim to R. Bathrick, father of Mrs. Willard, all his title and interest. The consideration expressed in the deed was 10 dollars. Bathrick lived upon the land and continued to occupy it until the time of the plaintiff’s extent. On the 24th of October, 1821, Bathrick, being then insolvent, gave a deed of the land, without covenants oi warranty, to Mrs. Willard, for the consideration of 20 dollars, for which sum she gave her note. She knew of the embarrassments of her father, and this deed was made on that account, to prevent the land from being taken by his creditors. She , ved on the land at the time, her father having boarded with her four months.</p> <p>The defendants offered to prove by parol evidence, that Willard’s estate, at the time when he gave the deed to Bath-rick, was of much greater value than 20 dollars ; that nothing was in fact paid by Bathrick, but that the deed was without consideration ; that it was agreed between them that Bathrick should permit Mrs. Willard to occupy the land as if it were her own; that Mrs. Willard remained in possession to the present time ; and that the conveyance was made to her by Bathrick, because he held the land in trust for her, and to prevent the property, which was only intended to be held by him for her, from being taken from her to pay his debts. This evidence was rejected. t</p> <p>The defendants also offered in evidence a bond made by Willard to Bathrick, bearing even date with his deed to Bath-rick, in which he covenanted “ never to exercise any authority over his wife or any property real or personal which she may hereafter acquire or which she now has.”</p> <p>The defendants were defaulted ; but if the whole Court should be of opinion that the parol evidence was improperly rejected, or that from a consideration of the conveyances referred to and the facts proved, the defendants could maintain the issue of soil and freehold in J. and S. Willard, the default was to be taken off.</p>

<p>The general position, that a moral obligation is a sufficient consideration for an express promise, is to be limited in its application, to cases where a good or valuable consideration has once existed.</p> <p>Thus, where a son, who was of full age and had ceased to be a member of his father’s family, was suddenly taken sick among strangers, and, being poor and in distress, was relieved by the plaintiff, and afterwards the father wrote to the plaintiff promising to pay him the expenses incurred, it was held, that such promise would not sustain an action.</p>

<p>S makes a will, bequeathing legacies u to the two oldest children ” of M. One of the two oldest at the date of the will dies. S afterwards by a codicil confirms the will, except in some particulars, saying nothing of these bequests. Held, that the two oldest children living at the testator's decease, were entitled to the legacies.</p> <p>An action for a legacy will not lie until after a demand by the legatee upon the exe cutor.</p> <p>The power of a prochein ami commences with the suit, and he can therefore maintain a suit for such causes of action only as may be prosecuted without a previous special demand $ unless the defendant has waived the necessity of a demand.</p> <p>A father, as natural guardian, is not entitled to demand or receive payment of a legacy to his child 5 but where a demand by him was resisted by the executor, solely on the ground that the child had no claim to the legacy, it was held that the executor had waived the necessity of a demand, and an action by the legatee by his father as prochein ami was sustained.</p>

<p>This was an action on the case in the nature of waste, for cutting down trees on land assigned to the wife of the defendant as her dower in the estate of her former husband Nathan Newton. The cause was tried before the chief justice.</p> <p>The plaintiff, through several mesne conveyances from the heirs of Newton, held the reversionary interest in the land by deed of mortgage, made on the 17th of June, 1815, to secure the payment of a sum of money on or before the 17th of June, 1816. He was put in possession in May 1823, by virtue of a writ of habere facias issued on a judgment recovered in a suit on the mortgage, having never before entered under the mortgage, and this action was commenced in August following. The acts complained of were done before the plaintiff was so put in possession.</p> <p>The defendant objected that this action could not be maintained by a mortgagee, until after a foreclosure, or until after an entry for condition broken, or at least not without an entry under the mortgage and actual possession; nor in either case for acts done before possession taken ; but the objection was overruled.</p> <p>The defendant offered to prove that the trees were cut down by other persons, mere trespassers, without his consent or knowledge ; but the evidence was rejected.</p> <p>A verdict was returned for the plaintiff, subject to the opinion of the Court in regard to the foregoing determinations.</p> <p>1. Waste will lie only for one who has tire immediate estate and inheritance in reversion ; Bac. Abr. Waste, G ; Com. Dig. Waste, C, 2, 3 ; 3 Bl. Com. 225 ; and such estate must not be contingent or defeasible, like that of a mortgagee. Peterson v. Clark, 15 Johns. R. 205. The waste here was done before the condition was forfeited; that, however, is immaterial, since after a forfeiture the estate of the mortgagee remains contingent. The reversion must continue in the same state when the action is brought, that it was when the waste was committed ; otherwise the action cannot be maintained. Co. Lit. 53 b; Bac. Abr. Waste, G. The mortgager has an estate of inheritance, and for waste committed before an entry under the mortgage the remedy should seem rather to belong to him ; for before such entry the rights of the mortgagee are limited. Wilder v. Houghton, 1 Pick. 87; Hatch v. Dwight, 17 Mass. R. 289 ; Starr v. Jackson, 11 Mass. R. 519 ; Elliot v. Smith, 2 N. Hamp. R. 432.1</p> <p>2. The evidence excluded should have been admitted. It would be a great hardship on the defendant to make him liable for waste committed by mere strangers without his knowledge.</p> <p>cited to the first point, Penniman v. Hollis, 13 Mass. R. 431 ; Erskine v. Townsend, 2 Mass. R. 495 ; Parsons v. Wells, 17 Mass. R. 419; Starr v. Jackson, 11 Mass. R. 519 ; 2 Wms’s Saund. 252 c; Brady v. Waldron, 2 Johns. Ch. R. 148; — to the second point, Bac. Abr. Waste, G, 1 ; Co. Lit. 54 a; Bray v. Tracy, Cro. Jac. 688.</p>

<p>This was an action of covenant, which came before the Court on a case stated.</p> <p>On the 4th of"March, 1824, the parties entered into an indenture, by which Smith leased to the defendants, for three years, two thirds of a farm, and it was covenanted that they should “ not carry off any hay or stover of said farm, under forfeiture of ten dollars for each ton.” While the defendants were in possession under the lease several tons of bay were attached upon writs sued out by creditors of the defendants, and were removed from the farm and sold, and the proceeds were afterwards applied in part satisfaction of the judgments recovered by the creditors. Putnam forbade the officer to carry off the hay, as there was a condition in the lease that it was not to be carried off the farm.</p>

This was an action of covenant, which came before the Court on a case stated.

<p>On the 25th of May, 1781, a committee of the legislature, thereunto duly authorized, by their deed duly executed, for the consideration of £1124, granted to Pierre Mathieu André, his heirs and assigns, with warranty, a tract of land in the town of Holden, which had been confiscated as estate of William Brattle. André was at that time resident in Boston, but was a subject of the king of France and alien to the commonwealth, and was never naturalized therein. The purchase was made for the benefit of Jean Francois Billon, likewise a subject of the king of France, and resident at Marseilles. André and Billon both died in 1810, intestate.</p> <p>In February 1820, the attorney-general, pursuant to a resolve of the legislature of the 31st of January preceding, filed an information to recover seisin and possession of the land in question, alleging that it ought to escheat to the commonwealth for defect of title in any person who could by law hold the same.</p> <p>The children of André, being his heirs and subjects of the king of Franee, and the children of Billon, being his heirs and subjects of the same king, appeared and answered to the information, alleging respectively that the title to the land had descended to them.</p> <p>The cause was argued in writing.</p>

<p>The appointment of a member of a volunteer company in the militia to be an engine-man, exempts him from militia duty, but does not discharge him from his enlistment, and if he ceases to be an engine-man before the expiration of the term of the enlistment, his liability to do duty in such company revives. And this liability will not be affected by his enlisting, while so exempted, in another volunteer company and re ceiving a non-commissioned officer's warrant therein. [See Revised Slat. c. 12 52.]</p>

<p>This was an action of assumpsit upon a promissory note given by Spooner to the plaintiff, dated October 4, 1822, for 39 dollars. The defendant, by J. W. Jenkins his guardian, pleaded the general issue.</p> <p>On the trial in the Court of Common Pleas, before Strong J., it was shown, that on the 20th of August 1822, a complaint was made by the selectmen of Barre, to which town Spooner belonged, to the judge of probate, requesting a guardian to be appointed over Spooner, on account of his intemperance, idleness and wasting of property ; that the judge decreed that an order of notice should issue to Spooner to appear or, the 3d Tuesday of October following, to show cause why & guardian should not be appointed, which order was served or- the 27th of September ; that on the 3d Tuesday of October the judge decreed that Spooner should be put under guardianship, spd on the 7th of January 1823, appointed Jenkins his guardian ; and that before the date of the note the selectmen of Barre filed a copy of their complaint, and of the order of notice thereon, in the office of the register of deeds. It further appeared that the note was made for a valuable consideration.</p> <p>The jury were instructed that the statute of 1818, c. 60, did not apply to this case ; whereupon the defendant filed his exceptions.</p> <p>The statute referred to provides, that in case a guardian shall be appointed to a person complained against as above, “ every gift, bargain, sale or transfer of any real or personal estate,” made by such person after the filing of a copy of the complaint, and of the judge of probate’s order of notice thereon, with the register of deeds, shall be void.</p> <p>The case was argued in writing, in vacation.</p>

<p>This was a writ of entry, in which the demandants counted upon their own seisin within thirty years and a disseisin by the tenant. Trial was had before Putnam J. upon the general issue.</p> <p>It appeared that John Cole, by his last will, dated in February 1807, and proved in July following, devised the land in question, “ to the South Parish of Sutton, to be applied for the use of schools, and to be kept by the inhabitants for ever.” The South Parish, and the First Parish in Sutton, mean the . , same parish.</p> <p>To prove an entry under the devise, the demandants offered in evidence a- book purporting to be the records of the South Parish, in which were entered a vote of that parish at a meeting on the 2d of March, 1808, “ to choose a committee, to consist of three persons, to manage the prudential affa'rs of said society,” and the choice of three persons as such committee.</p> <p>A warrant was issued by this committee on the 11th of April, 1808, for a meeting of. the inhabitants of the parish on the 2d of May following, and at a meeting held accordingly, these votes were passed. “ Voted, that the parish will take measures to obtain possession of the donation of the late Mr. John Cole. Voted, that the parish will choose an agent or agents to institute or defend any suit or suits that may be com menced for or against them, and act any thing relative thereto Voted, to choose twro agents. Chose Estes Howe Esq. and Lieut. Amasa Roberts, agents.”</p> <p>The tenant objected to these records as evidence, on the ground that the meetings above mentioned were irregular and illegal, and all the proceedings at them void. In support of the objection, he gave in evidence the act of October 28, 1743, incorporating The North Parish in Sutton, and the act of June 25, 1794, incorporating The First Congregational Society in Sutton ; and offered to prove, that from the time of the incorporation of that society, until the 2d of March, 1808, the South Parish had not been in an organized slate ; that the meeting held on that day was called by a warrant issued by a justice of the peace, upon an application of fewer than ten in habitants of the parish ; and that members of the Congregationa society voted, both at that meeting and at the meeting held on the 2d of May, indiscriminately with the inhabitants of the parish; and that the records of the parish begin in 1808 toa terminate in 1813.</p> <p>The tenant insisted that these facts, if proved, would show that the parish had not accepted of the devise, and had no entered on the demanded premises so as to maintain this action But with a view to try the merits of the case, the judge ruled that the records were sufficient to prove that Howe and Roberts were authorized to enter and claim for the demandants, and that evidence of the facts which the tenant offered to prove was inadmissible.</p> <p>The demandants then called Roberts, who testified that in 1808, after the vote by which he was chosen an agent, he entered upon the demanded premises and claimed possession for the parish, which the tenant refused to yield</p> <p>A verdict was returned for the demandants.</p> <p>The cause was argued in writing by L. Lincoln, before his appointment as a justice of this Court, for the tenant, and E H. Mills and Ashmun for the demandants.</p>

<p>The defendant in error was the original plaintiff in an action of trespass. The case involved a question of costs depending upon St. 1786, c 66, respecting reviews in civil actions. It was argued at the October terms in 1822 and 1823, and after-wards in writing, by T. Fuller for the plaintiff in error and Fay for the defendant. The facts will appear in the opinion of the Court, which was delivered by</p>

This was a writ of entry sur disseisin, m which the demandant declared on his own seisin within twenty years and, a disseisin by the tenant. A trial was had upon the general issue.

This was an action of replevin for certain household furniture. The defendant pleaded that the property in the furniture was in John Wheeler, when he as a deputy sheriff attached it for some of the creditors of John Wheeler. The plaintiff replied property in himself, and issue was joined thereon.

This was an action of replevin for certain household furniture. The defendant pleaded that the property in the furniture was in John Wheeler, when he as a deputy sheriff attached it for some of the creditors of John Wheeler. The plaintiff replied property in himself, and issue was joined thereon.

<p>Debt against the defendant as sheriff of this county for an escape of one Ames, who was committed on execution to the gaol in Concord.</p> <p>The defendant relied on St. 1821, c. 22, which provides (§ 1) that when any person confined in close prison on mesne process or execution shall claim relief as a pauper, the keeper of the prison shall after twenty-four hours furnish relief at the charge of the creditor ; and (§ 2) that when the keeper, at the time of the commitment, shall require of the creditor or his attorney, or of the officer committing, security for the expense of supporting the debtor, in case he shall claim relief as a pauper, unless satisfactory security is given the keeper may discharge the debtor after twenty-four hours from the time ol his claiming such relief.</p> <p>The defendant proved by the officer who committed Ames, that at the time of the commitment inquiry was made by the wife of Moore, the deputy gaoler, as his agent, he being then absent, who would pay for Ames’s board ; that the officer told her that no provision would be made by the creditor, nor by his attorney, and that he himself had no authority from any one to become responsible.</p> <p>The defendant also proved that Ames continued in close confinement about thirty hours ; that when first imprisoned he told Mrs. Moore he must be supported, as he could not support himself; that at the expiration of the thirty hours be told Moore he wished application might not be made to the overseers of the poor of the town where he belonged, for payment of his board during the thirty hours, as the inhabitants were mean about such things ; that he paid Moore all that was due to him, except a few cents which he afterwards paid, and Moore discharged him.</p> <p>The trial was had in the Court of Common Pleas before Strong J. who was of opinion that a sufficient requirement was made by the gaoler for security for Ames’s, support, and sufficient claim for relief as a pauper was made by Ames ; and that consequently the defendant was not liable for an escape. The plaintiff filed his exceptions, alleging 1. that a more particular and definite demand should have been made on the creditor, &c., for security for the prisoner’s board, and 2. that the prisoner or gaoler should have made complaint to the overseers of the poor of Concord, pursuant to St. 1793, c. 59, § 13, in order to make sufficient claim for relief as a pauper, to justify the defendant in discharging the prisoner.</p>

<p>Where an administrator pays a debt in full, upon an erroneous belief that the estate oí his intestate is solvent, an action to recover back part of the money paid does not accrue until the insolvency of the estate is ascertained by a decree of insolvency and order of distribution; and consequently, the statute of limitations begins to run from that time.</p> <p>A demand of repayment was made after such decree, and interest was allowed only from the time of such demand.</p>

<p>O. J. H. was enrolled in a company of militia by the name of C. H. Held, tl at he was not duly enrolled.</p> <p>On the back of a sergeant's warrant was a certificate, that he had “ taken and subscribed the oath according to law before me J. T. W. commanding officer.” Held, that this was not a sufficient certificate of his being appointed clerk of the company, and that it could not be amended by inserting proper words of appointment, to sustain a prosecution commenced by him as clerk. [See Revised Slat. c. 12, § 112.]</p>

<p>Webber was fined by a justice of the peace for neglecting to muster in a standing company of militia in Bedford on the 3d of May, 1825 ; and now, upon his petition for a writ of certiorari, it appeared, that when he was enrolled and warned, he lived in Bedford, which is within the limits of the second brigade of the third division, and was justly fined, unless the following facts constitute a defence. Previously to the time of the notification, he had been enrolled in a company of artillery in Lexington, which is within the limits of the first brigade of the same division, and was doing duty in it. This company was raised as early as 1785, and the officers first commissioned were authorized by their commissions to command “ the company of matrasses in the brigade in the county of Middlesex ; ” there being then but one brigade in the county. As early as 1790, the militia of the county were formed into two brigades constituting the third division, and the tenor of tbe commissions was altered accordingly. For the last twenty-five years, at least, there have been some members of this company, who at the time lived within the limits of the second brigade, doing duty in this company, and no legal or official complaint had ever been made before the one in this case.</p>

<p>Where each party files his exceptions to the direction of the Court of Common Pleas, and the exceptions are overruled and the judgment affirmed, each is entitled to his costs.</p>

<p>This was an action on the case, founded upon St. 1786, . 81, § 7, to recover double damages for an injury sustained by the plaintiff in having his chaise overturned and broken, by reason of a certain highway in Weston being suffered to be out of repair and incumbered and obstructed by several large stones placed and left upon it.</p> <p>The statute provides, that if any person shall receive any injury “ through any defect or want of necessary repair and amendment of any highway,” Sic., he may recover of the county, town, &c., who are by law obliged to keep it in repair, in case they had reasonable notice of the defect, double the damages thereby sustained.</p> <p>On the trial in the Court of Common Pleas, upon the general issue, it appeared that a small wooden bridge in Weston being supposed to require rebuilding, the selectmen determined to rebuild it with stone, and entered into a contract with one Converse Bigelow for furnishing the stone and rebuilding the bridge. This agent procured several large stones to cover the bridge, which he placed at each side of it as far out of the travelled path as they could be without being exposed to fall from the causeway, which there formed the road. The stones thus placed left only eleven feet and a half in breadth for carriages to pass between them, and as the plaintiff was passing in his chaise early in the evening, his horse sheared from the stone placed on the right hand side of the bridge, and ran over another on the left, by which his chaise was overturned and broken.</p> <p>The defendants contended, that by the statute they were liable for such injuries only as arose from neglect to repair the roads, or from the decay of the roads or bridges. But Strong J. instructed the jury, that they were liable for injuries occasioned by stones or other obstructions or incumbrances laid or suffered to remain in and upon such roads.</p> <p>The jury found a verdict for the plaintiff, and the defendants thereupon filed their exceptions to this direction.</p>

<p>Case for diverting water from the plaintiff’s mill. Trial before Putnam J. upon the general issue.</p> <p>It appeared that the plaintiff’s mill is about two miles below a mill seat owned by the defendant, and upon the same stream. The plaintiff’s mill was originally occupied for a grist-mill. That was taken away about ten years ago, and a woollen manufactory has been built in its place. The plaintiff’s watercourse and mill seat had been used, by him and his ancestors, for more than forty years next before the diversion for which the action was brought. The defendant owned an ancient malt mill and dam. There were two outlets for the water from this dam, one of which, on the westerly side, suffered the water to pass into an ancient channel, about twenty rods in length, and after irrigating a small tract of ground belonging to the defendant, to unite with the stream running to the plaintiff’s mill. The plaintiff complained of a diversion of the water by reason of a new channel which the defendant cut in 1817, from three to five feet in width, leading from the ancient one and passing through a hill of sand, which was excavated to make a passage for it, and thence extending round the margin of a large tract of plain land belonging to the defendant, from which new channel the defendant cut small ditches into and across the plain land for the purpose of irrigation. The land was so porous that the water would not reach the end of the ditches, but would be absorbed. When the gate leading from the ancient channel into the new one was kept shut, there was water enough at the plaintiff’s mill; but when it was open, the water failed, so that the machinery could not be made to work</p> <p>The counsel for the defendant contended that he had a right to conduct the water from his ancient channel, and use it in the manner before stated ; but the judge was of a different opinion, and so instructed the jury. He stated to them that me peaceable and exclusive use of the water-course under a claim of right, for more than twenty years, unexplained, was conclusive evidence of a right in the party so enjoying it; and that the defendant turned the water into the new channel after the plaintiff’s right had been long established to have all the water, except what the defendant had appropriated to his own use before the cutting of the new channel.</p> <p>The jury found a verdict for the plaintiff, and the defendant moved for a new trial on the ground of a misdirection.</p>

<p>i, C. having inherited one fourth part of certain land which had been set off to the widow of W. C. for her dower, and having purchased of T. G. in 1798, for 700 dollars, two other fourths, conveys to J. T., in 1799, for 350 dollars, “ one half of all that part of the real estate of W, C. which was set off to the widow, which was conveyed to me by T. G., reference to his deed being had, meaning to convey by this instrument the full one half of the above described estate as the same is now in common and undivided;” and in 1811, he releases to J. T. all his right in the rest of the dower land. In 1817, J. T. reconveys to J. C. an 11 undivided moiety of certain real estate, the same being a part of the real estate of W. C. and set off as dower, &c., meaning hereby to reconvey to J. C. the same premises that J. C. conveyed to me in 1811.” It seems, that one half of the dower land passed by the first deed of J. C. to J. T. 5 but it was held, that if only a fourth passed, yet that J. T/s deed to J. C. passed a moiety of the dower land, either according to the intention of the parties, or if not, because the clause above italicized was not a reservation, exception, or explanation of the preceding words of grant, but was repugnant to them and therefore void.</p>

<p>Petition by prochein ami of an infant feme covert for the sale of real estate granted, and the proceeds ordered to be secured for her benefit.</p>

<p>This was an indictment upon Si. 1798, c. 20. [See Revised Stat. c. 47, § 9.] There were two counts. The first alleged, that on, &c., at Attleborough, in the county of Bristol, the defendant, “being then a person there licensed as an innholder according to law, &c., did unlawfully &c. suffer and allow sundry persons &c. to play at cards and other unlawful games in the dwellinghouse of him the said Bolkom, occupied and improved by him, being the same dwellinghouse in which he was licensed to keep his inn as aforesaid,” &c. The second count contained an averment that the defendant was a licensed innholder, and alleged that he “ unlawfully &c. did afow a great number of persons &c. to play in his inn at cards and keeno table for money.” i,</p> <p>Upon the trial the attorney-general, to prove that the defendant was duly licensed as an innholder, offered in evidence a book purporting to be the book of records of the Court of Sessions of the county of Bristol, and kept by the clerk of that court, in which, under the head of “ Licenses Sep‘.ember term 1823,” was entered the name of the defendant, with the names of his sureties in the recognisance required by law. The defendant objected to this evidence, until it were proved by record evidence or otherwise, that the defendant had previously been approved of by the selectmen, or otherwise, upon their unreasonable refusal to give their approbation, had made application for a license. This objection was overruled. The defendant then objected to the sufficiency of the record, because it did not set forth in full that the court had licensed him, but merely contained his name in the manner before stated. The cleric testified that the book produced was the only book of records of the Court of Sessions since 1814; that th'e entry of the license to the defendant was made in the usual and only manner in which licenses are recorded, and that the entry so made was the record of a license being granted to the defendant, and that he entered into the recognisance required by law with those persons as sureties whose names were so entered with the name of the defendant. The book was admitted in evidence and the defendant was convicted upon a general verdict, the objections made by him being reserved for the consideration of the whole Court. A motion also was made in arrest of judgment for defects in the indictment.</p> <p>The cause was argued on the 15th of November, by W. Baylies and Darling for the defendant, and Morton (Attorney-General) for the commonwealth, and was determined on the 17th.</p>

<p>On an indictment against an innholder, the minutes of the Court of Sessions, of a license having been granted him to keep an inn, are admissible evidence to prove that fact, no extended record of the granting of such licenses being kept by the court.</p> <p>Where such a license has been granted, it will be presumed that the court had proper evidence before them, as the recommendation of the selectmen, &ci</p> <p>An indictment against an innholder for suffering persons "to play at cards and other unlawful games,” is sufficiently certain, the word cards being used in the statute as the name of a game, and the words "other unlawful games” being surplusage*</p> <p>In such indictment it is not sufficient to allege, that the defendant was duly licensed and that he allowed persons to play in his inn, but it must be directly averred that he actually kept an inn»</p>

<p>Where a grantor of land having obtained possession surreptitiously of the deed, pretending that he would get it recorded, conveyed the land again to a person who had knowledge of the former conveyance, it was held, in an action by the heir, of the first grantee against the second, that the demandant, having traced the deed into the hands of the grantor, might give parol evidence of its contents without calling him as a witness, though released by the tenant, to prove its loss, or showing that it was not in the register's office; and that not knowing who were the subscribing witnesses, he was not bound to prove their handwriting; and that the declarations of the second grantee previous to the second conveyance, were admissible to show such conveyance to be fraudulent.</p> <p>Where a lost deed is not proved to have been destroyed, but only mislaid, tt seems that the party should make affidavit that he has not been able to find it.</p>

<p>This was a writ of entry to recover certain land called “ The White farm,” and the demandants counted upon the seisin of Walter Spooner, to whom Alden Spooner, his father, had conveyed the land, and a descent to Mrs. Davis as the only child and heir of Walter, and upon an entry of the tenant after an abatement by Alden and a conveyance by him to the tenant.</p> <p>The tenant pleaded, 1st, that Walter did not die seised ; upon which issue was joined ; and 2dly, that the tenant, at the time of the conveyance to him, did not know that Alden had previously conveyed the land to Walter ; to which there was a replication that he did know of it; and thereupon issue was joined.</p> <p>The cause was tried before Lincoln J. On the part of the demandants, one Haskell testified, that soon after Walter’s death, which was in 1808, he went to see his widow, who was sister of the witness ; that she showed him two deeds purporting to be made by Alden to Walter, and to be attested by three subscribing witnesses and acknowledged before Seth Spooner, justice of the peace ; that he read the deeds and proposed to take them and have them put on record, but she objected, saying her father Spooner would be offended, and that he delivered them back to her and had never seen them since. Upon cross-examination the witness said he did not remember the names of either of the subscribing witnesses, nor the date of the deeds.</p> <p>Betsey Howard, who was the widow of Walter Spooner, having released to the demandants her right of dower, and being admitted as a witness, testified to some of the facts before stated, and that she objected to the proposition to have the deeds recorded, because, as she expected her father Spooner would administer on her husband’s estate, she was afraid he would be offended if she meddled with the papers. On cross-examination she was asked, how she knew the papers were deeds from Alden to Walter. She answered that they looked like deeds ; that she remembered there was written on the back of one of them, C£ Deed of the White farm from Alden Spooner to Walter Spooner,” but she did not know when or by whom it was written ; that she had no recollection of ever Opening the papers,'but only remembered the external appearance and the filing. She further testified, that a short time after her interview with her brother, Alden came to her house and asked permission to go to his son’s desk, as there were papers there relating to his son’s business as a deputy sheriff, which were wanted; that while he was at the desk he took up the deeds and said, ic What, has not Walter got these deeds recorded,” and then said he would take them and get them recorded ; and that this was the last she ever saw of them.</p> <p>The demandants again called Haskell to prove the handwriting of Alden in the execution of the deed, and to prove the contents of the deed. The tenant objected, that having proved that the supposed deed was in the hands of Alden, they must call on him to produce it, or show that it had been lost or destroyed ; that he was then in court, and was a competent witness for the demandants, if not objected to on the part of the tenant; and that resort could not be had to proof of the handwriting of the grantor, without first calling the subscribing witnesses, or proving that they were dead or out of the reach of process. These objections were overruled.</p> <p>The demandants called several witnesses to the declarations of Alden before the conveyance to the tenant, that he had given the White farm to his son Walter. The tenant objected to this evidence, but the objection was overruled. To resist this evidence the tenant called Alden, who testified that he never gave a deed to Walter</p> <p>A verdict was returned in favor of the demandants, and the legal effect of all these objections on the part of the tenant was reserved for the consideration of the whole Court.</p> <p>The deed should have been proved to be lost, and by the best evidence which the case would admit, before parol evidence of its contents was received. The King v. Castleton, 6 T. R. 236 ; Jackson v. Hasbrouck, 12 Johns. R. 192 ; Jackson v. Frier, 16 Johns. R. 193 ; Little v. Lessee of Delancey, 5 Binney, 267 ; Jackson v. Todd, 3 Johns. R. 300. The presumption was that it existed either in Alden’s hands or in the register’s office. The demandants should therefore have called upon Alden to produce it; and if he had said there was no deed in his hands, they should then have shown that they had made inquiry of the register. Alden had been released by the tenant, and his testimony used at a former trial; he was therefore a competent witness for the demandants, if the tenant did not object to him. For any thing that appears, the deed has been recorded and redelivered to the party entitled to it.</p> <p>In regard to the subscribing witnesses, it does not follow that because Haskell did not know who they were, the de-mandants also were ignorant. They should have made an affidavit to that effect. Blanton v. Miller, 1 Haywood, 4; Park v. Cochran, ibid. 410.</p> <p>The demandants were not at liberty to call Alden as a witness to testify to his own infamy. Storer v. Batson, 8 Mass. R. 440 ; 3 Dane’s Abr. 296 ; Rex v. Lewis, 4 Esp. R. 225. But if he was a competent witness, they were not bound to make use of his testimony. jBridge v. Eggleston, 14 Mass. R. 249. Since however he was called by the tenant and testified that he never gave to his son a deed of the land in question, our neglect to call him amounts to nothing more than irregularity; which is not a ground for a new trial. As we did not know who were the subscribing witnesses, and were prevented from knowing it by the misconduct of the grantor himself, who is identified with the tenant, we were not obliged to prove their handwriting. The acknowledgment of the party has frequently been considered as evidence of the execution of a deed. Bowles v. Langworthy, 5 T. R. 366; Hall v. Phelps, 2 Johns. R. 451.</p> <p>Evidence of the declarations of Alden having been admitted, although objected to at the time, we were obliged to call him, in order to rebut such evidence, and if it was the duty of the demandants to make him their witness, the tenant ought to be placed in as good a situation as if they had done it. The declarations were not admissible before he had testified, but only to contradict his testimony.</p>

<p>In case for the continuance of an obstruction in a private way, a verdict and judgment on the general issue in a former action between the parties for the same obstruc* lion, is admissible, though not conclusive, evidence to show that the plaintiff has a right to the way.</p>

<p>Assumpsit. In a case stated the following facts were agreed. The plaintiff was the mother of Catherine Boucher, who at the time of the commencement of this action was the wife of the defendant and who had lived with him as such until the spring of 1824, when he caused her to be committed to gaol on a complaint against her for adultery. She was convicted of that crime, and remained in prison under sentence of court until the autumn of the same year. In the mean time the defendant had let his house, and had gone to live at board, but had retained one room in which his furniture was locked up. He was occasionally at his house both before and aftei the expiration of the sentence against his wife. Upon her release from prison she went to her mother’s in Freetown, and lived there to the time of the commencement of this action, which was brought for her board. During this period the defendant boarded in the village of New Bedford, about three quarters of a mile from his house, and another family lived in the house. The defendant made no provision for the support of his wife, nor offered to do so, during this peiiod, nor did she ever request him to do it, or ever return to New Bedford ; but be advertised in the New Bedford Mercury, forbidding all persons to trust her on his account. Since the action was commenced the defendant had obtained a divorce for adultery.</p>

<p>Assumpsit for money had and received. Plea, the statute of limitations. The action was brought to recover money borrowed in 1814 by the agent of the Westport Cotton Manufacturing Company, then a voluntary association composed of the defendants, but which in 1815 was incorporated. To take the case out of the statute of limitations the plaintiff proved an acknowledgment of the debt within six years next before the commencement of the action, by two of the defendants. The whole number exceeded twenty. A verdict was found for the plaintiff.</p>

<p>In a question of the settlement of a female pauper, depending on the validity of her marriage, the pauper and her supposed husband are competent to testify concerning the marriage.</p> <p>In such a case proof of a marriage de facto in another Slate is sufficient to throw the burden of proof on the party impeaching its validity. Semble.</p> <p>A statute of another State, or its repeal, cannot be proved by parol evidence.</p> <p>A book purporting to contain the statutes of any one of the United States and to be printed by its authority, is primd facie evidence of the written law of such State.</p> <p>A liter of a printed book of statutes of a foreign nation. Semble.</p>

<p>This was an action of assumpsit upon a promissory note, In which “ John S. Johnston as principal and Edward Ayres as surety jointly and severally promise to pay the President, Directors & Co. of the Bedford Commercial bank or order three hundred dollars on demand,” &c.</p> <p>To maintain the action the plaintiffs proved, that prior to the date of the note Johnston owed them about 300 dollars as a balance of accounts, and when called upon to pay this balance offered to procure a good note, which would enable them to obtain the money from the Bedford Commercial bank; that they assented, provided such a note could be obtained as would not require their names. Johnston accordingly made the note in suit, and obtained the signature of Ayres, and delivered it to the plaintiffs in payment of the balance due to them. The plaintiffs presented the note to the bank for discount, but the directors refused to discount it. It was after-wards taken from the bank by the plaintiffs and had ever since remained in their possession.</p> <p>The plaintiffs also offered to prove that notes of this kind were frequently negotiated at the bank, and that it was common for debtors to make such notes, intending them as accommodation notes, and to deliver them to their creditors, who procured the discount.</p> <p>It was in evidence that the bank refused to negotiate this note to the plaintiffs, or to suffer them to bring an action in the name of the bank.</p> <p>The defendants contended that the plaintiffs, not being named in the note, could not maintain this action ; that there was no privity of contract between them and Ayres.</p> <p>Wilde J., before whom the cause was tried, directed a non-suit, subject Ac.</p>

<p>A divorce will not be granted for adultery of the wife committed through the hus band’s procurement.</p>

<p>This was an action.of debt for penalties alleged to have been incurred by the defendant under St. 1786, c. 68, regulating licensed houses. Plea, the general issue.</p> <p>The defendant admitted that he kept an inn and a store in Rehoboth, and that he sold various distilled spirits in them, as alleged in the writ, but he contended that he had been duly licensed so to do.</p> <p>It appeared that he was licensed as an innholder; but the plaintiff insisted that the license was void, because the certificate of the selectmen of Rehoboth did not conform to the statute (§2), but merely recommended the defendant “as being a suitable person to receive a license.”</p> <p>The plaintiff objected also, that the license did not extend to the store ; but the defendant contended that he had a right to sell by retail, as well in his store as in his dwellinghouse, on the ground that the store was a dependency of the house, within the meaning of the statute. The store stood between two and three rods from the house, and between the house and a shed used for the accommodation of travellers. The store and shed were contiguous and served in part to enclose the defendant’s field in which his house was situated. The upper story of the store was sometimes used by the defendant as a dining-hall on muster days and at other times, and beds were set up in it for occasional use.</p> <p>Upon these facts Wilde J. directed a nonsuit, subject to the opinion of the whole Court.</p>

<p>k person who has never been an inhabitant or resident within this commonwealth, but who only comes here occasionally in the day time, is not liable to the trustee process.</p>

Trespass against Brock, Barnard and Chace for an assault and battery. The action was entered in the Court of Common Pleas at September term 1823, and was continued till March term 1824,. when it was brought into this Court by demurrer. The defendants pleaded jointly in the court below. Here the plea and demurrer were waived and they pleaded severally a justification ; and upon a trial the plaintiff obtained a verdict against Brock only.

<p>A .ibei was published in 9 newspaper printed in another State, but which usually circulated 'n 3 county in this State, and the number containing the libel was actually received a» 3 circulated in such county. Held, that this was competent and conclusive evidence of a publication within such county.</p> <p>The malicious intent charged in an indictment for a libel, where the truth of the facte contained in the libel is not admitted in evidence, is an inference of law.</p> <p>The provision in the constitution securing the liberty of the press, was intended to prevent any previous restraints upon publications, and not to affect prosecutions for the abuse of such liberty.</p> <p>The general rule is, that upon indictment the truth of a libel is not admissible in evidence. Whether in any particular case such evidence is admissible, is to be determined by the court 5 and if admitted, the jury are to determine whether the publication was made with good motives and for justifiable ends.</p> <p>On an indictment for a libel published in a newspaper, charging a person with mis conduct as an innkeeper, for which he was liable to punishment, it was held, that the truth of the libel was not admissible in evidence.</p> <p>Publishing a correct account of a judicial proceeding, but with comments and insinúa lions tending to asperse a man's character, is libellous.</p>

<p>Assumpsit, brought by the treasurer of the third parish in Dedham, upon the following promissory note signed by Oliver Ellis, the defendant’s testator, viz.: — “ Dedham, June 1st, 1811. Borrowed and received of Willard Gay, Esquire,</p> <p>treasurer of the third parish in Dedham, seventy-five dollars, which sum I promise to repay him or his successor in said office, according to the conditions of a donation made to said parish, and accepted by them by a vote passed May 30th, 1811, and recorded in the parish book of records, reference thereto being had, with interest on the first day, of March annually.”</p> <p>The conditions referred to were contained in a subscription paper, dated April 18th, 1811’, by which forty-two persons agreed to pay the several sums affixed to their names, (75 dollars being affixed to that of O. Ellis,) to the treasurer of the third parish in Dedham. Among other things, it was stipulated that the sums subscribed should be placed at interest, and the interest devoted for ever to the annual support of a gospel minister of the congregational denomination ; that any subscriber should be entitled to the loan of the sum subscribed by him, by giving his note therefor to the parish treasurer and paying the interest annually ; but that if such subscriber should neglect to pay the interest for the space of thirty days after it should fall due, it should be the duty of the trustees hereafter mentioned forthwith to compel payment of the principal sum ; that the settled minister, the parish treasurer, and parish committee, should be a board of trustees to manage the fund, and to have the entire control of it, subject to the conditions of the donation ; that in case the parish should misapply the fund, or place the house of w’orsbip at a greater distance than fifty rods from where it then stood, or should be destitute of a settled minister for the space of six years, it should be liable to repay to the donors or their representatives the sums subscribed ; and that the proprietors, should a majority of them think best, might within two years get incorporated, and might vary the mode of managing the fund, but not the application of it.</p> <p>In May 1811, O. Ellis made the note declared on, the interest on which he paid during his life. No other consideration was received by him than what is expressed in the ru'bscription paper. A vote of the parish was passed in May 1811, accepting the donation according to the conditions of the subscription paper, and another vote ordering that instrument to be inserted in the parish records ; and since then the hoard of trustees have had the control of this note and of the rest of the fund, and have complied with the requisitions of the subscription paper. Some of the subscribers paid money, and others gave notes similar to the one declared on, and have paid the interest annually.</p> <p>In the Court of Common Pleas the defendant objected to the reading of the note to the jury, because the plaintiff had no legal interest in it, and was not a party to it. He also objected to the reading of the parish records, because the parish was neither a party to the contract declared on, nor could it assume the obligations which seemed to be intended by the recorded votes. He further objected that there was no legal consideration for the note. And lastly, he objected to the whole proceedings in creating and managing the fund, Decause no party had promised to accept and appropriate it according to the intention of the donors. But Williams J. overruled all these objections and ruled that the parish might sustain the action in the name of their present treasurer, and directed the jury to find for the plaintiff. Whereupon the defendant filed his exceptions.</p>

This was an indictment against the defendants for not repairing an ancient highway, alleged to be a part of their turnpike road, in the town of Roxbury At the trial, before Wilde J., it was proved, that by St. 1805, c. 67, the defendants were authorized to make and keep in repair a turnpike road from Roxbury to Worcester, and that a committee named in the statute were empowered to locate, view and accept the same, when completed to their satisfaction ; that the committee did…

<p>Air. execution levied on land must be returned into the clerk's office in order to complete the title of the creditor 5 but if it has been returned before it is offered in evidence of such title, although after the return day, it will be sufficient.</p>

Debt on a bond executed by Chickering as principal and by Jeremiah S. Boies and William Dean (since deceased) as sureties, for 20,000 dollars, dated the 15th of April, 1814, conditioned that Chickering “ shall well and faithfully execute and perform all the duties of cashier of said Dedham Bank, to which office he has been duly appointed, without fraud, covin, concealment, neglect or delay, so long as he shall continue in said office ; and when a successor shall be duly…

<p>Passing in a vehicle swiftly by a turnpike gate and not stopping when called after to pay the toll, is a forcible passing within the meaning of the statutes respecting turnpike roads.</p> <p>Erecting a toll-board with the rates of toll in the small Roman character, but of a large size, was held to be a compliance with a statute requiring them to be in “ large or capital letters."</p>

<p>This was an action against the defendants for forcibly passing a turnpike gate of the Norfolk and Bristol Turnpike Corporation, without paying the toll.</p> <p>Upon the trial, in the Court of Common Pleas, before Williams J., it appeared that the defendants were in a wagon drawn by one horse upon a quick trot, the toll-gatherer being at the door of the tollhouse, and the gate (which they knew to be a turnpike gate) being open ; that the toll-gatherer called to them first when they had arrived within about one rod of the gate, again when they were passing him, and a third time after they had passed him ; that they did not make any reply, nor pay the toll, but after they had gone about ten rods, greatly increased their speed.</p> <p>It also appeared that the sign-board containing the rates of toll was written chiefly in the small Roman letter, but of a size so large as to be legible at the distance of more than three rods.</p> <p>The defendants objected that the plaintiff had not proved a forcible passing, within the meaning of the statute creating the turnpike corporation, and that the rates of toll were not in capital letters ; and a verdict being taken in their favor by the direction of the judge, the plaintiff filed his exceptions.</p> <p>The St. 1801, c. 69, establishing this corporation, provides that it shall, at each place where the toll shall be collected, erect a sign or board, with the rates of toll “fairly and legibly written thereon, in large or capital letters.” The St. 1804, c. 125, which defines the general powers and duties of turnpike corporations, enacts in § 4, that all turnpike corporations shall erect a sign-board, with the rates of toll “fairly and legibly written or printed in capital letters ; and whenever said corporation shall neglect so to do, they shall not be entitled to demand or receive any toll at the said gate.”</p> <p>said that the direction of the judge on the defendant’s first objection was in the plaintiff’s favor, and that he excepted only to the direction, that the words “large or capital” meant “large, to wit, capital.” The intention of the legislature was that the letters should be easily legible, and this appears, not only from the phrase in the particular statute in question, but also from the variety of expressions used in different acts respecting toll bridges and turnpike roads; such as, “fairly and legibly written,” — “ large letters,” — “ large characters,” — “ large capital letters,” — ’“large capital characters,” — “large and capital letters,” — “large or capital letters.” Under the act creating this corporation, erecting a toll-board is not a condition precedent to their right to demand toll. The general act of 1804, c. 125, is prospective, even in terms, but if it were otherwise it could not affect the rights previously granted to this corporation.</p> <p>insisted, that “large or capital letters,” in the private act, meant capitals, and that the expression' “ capital letters” in the general statute was explanatory. This last mentioned statute applies to all turnpike corporations without distinction, and it was so considered in Wales v. Stetson, 2 Mass. R. 143. Erecting a toll-board in capital letters was therefore a condition precedent to the right to demand toll. By a forcible passing, the statute means a violence done to the gate or to the person of the toll-gath-®rer></p>

<p>This was an action on the case, in which the plaintiff, in his first count, alleged that he was seised and possessed of two pews in the First Congregational meetinghouse in Canton, and that the defendants, in pursuance of votes of the parish, pulled down the meetinghouse, thereby destroying the plaintiff’s pews, without first causing them to be appraised pur suant to St. 1817, c. 189, § 5. [Revised Stat. c. 20, § 36.] The second count contained the same allegations, and further, that after the erection of a new meetinghouse the proceeds of the sale of the new pews were not first applied to the payment to each proprietor of the pews taken down, at such appraised value, but were appropriated to another purpose.</p> <p>The defendants pleaded, that the meetinghouse was their property, that it had become old and decayed, and that it was necessary to take it down and build another for their accommodation in attending upon the public worship of God ; and that at a legal meeting they passed the votes mentioned, and in pursuance of those votes caused the old meetinghouse to be taken down and a new one to be erected.</p> <p>To this plea the plaintiff demurred for cause.</p>

This was an action upon the case, in which the plaintiff declared that the defendant, by erecting a dam on Neponset river below the plaintiff’s mills,'had obstructed the ancient course of the water and caused it to flow back upon the wheels of the plaintiff’s mills, whereby they were retarded. The declaration contained two counts.

<p>Trespass for breaking the plaintiff’s close and digging his clams there growing.</p> <p>The defendant pleaded that the soil and freehold in the locus in quo were in the inhabitants of Gloucester. The plaintiff replied that the soil,and freehold were in himself, and so it was found by the jury.</p> <p>The defendant pleaded also, that for a time beyond the memory of man, the inhabitants of Gloucester have had and continued to have a right to go upon the locus in quo, where no grass or thatch grows, and there to dig clams for their own use, and that he, being an inhabitant &c., dug the clams &c. The plaintiff in his replication^ denied this right, but the jury found it to be in the defendant according to his plea.</p> <p>At the trial, the plaintiff produced a deed of one Ingersol, dated in 1788, granting to him a parcel of thatch bank, which is situated at the mouth of Chebacco river, upon an isthmus, having that river on one side and the back river on the other, and at high tide is covered with water ; and he contended that his grant of the thatch bank extended his title to the channel of the river on each sute of the land, and so included the locus in quo, which is a gully of flats ground covered with water at half tide, where no thatch grass can grow. The defendant contended that such a construction was not applicable to this grant, and that the inhabitants of Gloucester, to whom the land once belonged, never intended, by a grant of the thatch bank, to grant the flats ground, which was the bed of their clams and necessary for their bait for the cod fishery. The jury however were instructed that the grant did extend to the channel on each side of the isthmus.</p> <p>The evidence was very full, that all the inhabitants of Glou cester had for more than sixty years dug clams in the locus in quo for their own use, without any interruption from the ownet of the thatch bank ; but the plaintiff contended, that a right to do so cannot be claimed by prescription. The jury however were instructed otherwise.</p> <p>The plaintiff objected to almost all the witnesses for the defendant, because they were inhabitants of Gloucester ; but their testimony was admitted under St. 1792, c. 32.</p> <p>The verdict was taken subject to the opinion of the whole Court.</p>

<p>This was a writ of entry.</p> <p>Upon a case stated it appeared, that on the 9th of July, 1777, Joseph Whipple, being seised in fee of the demanded premises, made bis last will, which was afterwards approved and allowed on the 2d of July, 1781.</p> <p>The testator, after saying, “ And as to my worldly estate, &c., I dispose of it in the following manner,” &c., gives to his wife certain personal estate, and the improvement during her natural life of certain real estate ; and to his granddaughter Hannah Whipple twenty pounds ; and then proceeds, “ I give all the remainder of my estate, both real and personal, to my daughter Sarah Annable and the children born of her body, including all my wife has the improvement of during her life after her decease.”</p> <p>In virtue of this devise, Sarah Annable became seised of the demanded premises and held possession until the 14th of October, 1822, when she died intestate," having had six children, namdty, Joseph W., Michael, and Daniel, who were born before the making of the will, Solomon, who was corn afterwards, all of whom were living at the decease of the testator, and Ephraim and Sarah, who were born after his decease. Michael died in the lifetime of bis mother, under age and without issue. Joseph W., the eldest son, likewise died in the lifetime of his mother, leaving the demandant, who was his eldest son, and seven other children, all of whom were born after the decease of the testator, and were living at the decease of their grandmother Sarah Annable.</p> <p>The tenants claimed under Daniel, Solomon, Ephraim, and Sarah, who upon the death of their mother entered into the demanded premises and conveyed the same to the tenants.</p> <p>If upon these facts the demandant was entitled to the whole or any part of the demanded premises, judgment was to be entered accordingly ; otherwise he was to become non suit.</p>

<p>Debt on an administration bond.</p> <p>Upon a case stated it appeared, that the defendant was appointed administratrix of the goods and estate of her husband Edward Swain, and gave the bond in February 1799. She returned an inventory of the estate in May following. The estate was represented as insolvent, and a report of the debts due from it, amounting to 2903 dollars, was made by the commissioners in January 1800. The defendant at the same time settled her administration account, and the balance of 1425 dollars, which was all the property that had come into her hands as administratrix, was ordered to be distributed among the creditors of the estate ; which was done accordingly. In September 1821, the defendant, in he: capacity of administratrix, presented a claim to the commissioners under the late Spanish treaty, for the intestate’s share of a certain vessel and part of a cargo, which formerly belonged to him and Thomas Ham, jointly. The claim was allowed and the defendant, pursuant to the award of the commission ers, received in September 1824, the sum of 3056 dollars. In the same September, upon the application of Ham, who was one of the creditors of the estate, and whose demand had been allowed by the commissioners of insolvency, she was cited by the judge of probate to account for this money. She appeared accordingly, but refusing to settle any account, the judge ordered her refusal to be recorded, and afterwards, upon the petition of Ham, authorized this action to be com menced</p> <p>If the Court should b? of opinion that the action was not barred by law, and that the defendant ought to account for the money last received, as assets belonging to the intestate’s estate, then she was to be defaulted ; but if the Court should be of opinion that the action could not now be maintained, then the plaintiff was to become nonsuit.</p>

<p>This was trespass against the defendant, as sheriff of the county of Suffolk, for the act of his deputy, in attaching on mesne process two stagecoaches and four harnesses belonging to the plaintiff, while he was using them for the conveyance of passengers.</p> <p>At the trial, before Putnam J., it was proved, that one of the coaches was attached near the appointed time for starting from Boston to Salem, when some of the horses were fastened to it and eight or nine passengers were engaged and were ready to go in the coach. The other had arrived at Boston from Salem, and was attached in the yard where it used to put up, and into which it was not commonly driven until after all the passengers had been distributed, but there were two female passengers still in the coach waiting to be carried to their respective places of destination in Boston, and the horses were still fastened to it, at the time when it was attached.</p> <p>The defendant submitted to a default, but if the Court should be of opinion that the action could not be maintained, the plaintiff was to become nonsuit.</p>

<p>Devise of “ the remainder of my property, of whatsoever name or nature,” accompanied with a schedule of the testator's property, which was all personal. Held, that the will did not purport a disposition of both real and personal estate, and therefore did not require the attestation of three witnesses.</p>

<p>Where a man dies testóle and solvent, and his widow waives her rights undei ile will, she is not entitled to an allowance by the judge of probate, of a portion of the personal estate of the deceased.</p>

<p>This was an action of slander for words spoken by the wife, charging the plaintiff with fornication and adultery. Plea, the general issue.</p> <p>At the trial, which was before Lincoln J., the plaintiff, to fortify the legal presumption of malice arising from the speaking of slanderous words, and as evidence of the malice with which the words laid in the declaration were uttered, offered evidence of the repetition by the wife, of similar slanderous expressions subsequently to the commencement of the action. This evidence was objected to by the defendants, because if such expressions were used, they would furnish ground for another action ; but the judge overruled the objection, and admitted the evidence.</p> <p>In their defence under the general issue the defendants pro posed to prove, that the wife had been led by particular instances known to her of improper conduct on the part of the plaintiff in regard to men, both married and unmarried, and by reports, which were current in the town where the defendants lived, of the same and similar improprieties of conduct, to believe that the words spoken were true, in order to show that the speaking of the words was not malicious. But the judge ruled, that all the evidence proposed to be given of particular facts in the conduct of the plaintiff, or of reports respecting any particular instances of impropriety, was inadmissible.</p> <p>The genera] character and rank in society of the plaintiff was inquired into without any objection being made.</p> <p>A verdict was found for the plaintiff, subject to the opinion of the whole Court in regard to the correctness of the foregoing determinations.</p>

<p>Case for a libel; plea, the general issue.</p> <p>At the trial, before Putnam J., it appeared, that the plaintiff was a young lady of good education and of respectable connexions. She had been employed nine or ten years as a schoolmistress in Methuen, ( where the parties belonged,) 'and in other towns, and was much respected in that employment. Her mother was dead. Her father, who was a physician, was unable to render any aid in supporting the family, and she had sisters younger than herself who depended verv much upon her for advice and assistance. The defendant had been for many years a representative from his town in the General Court, twice a senator from this county, was a magistrate of very respectable character and the most wealthy inhabitant of Methuen.</p> <p>The supposed libel was a written communication, dated May 3, 1824, addressed to the committee of a school district in Methuen, in which the defendant, after stating that he had been informed that the committee had employed the plaintiff to teach the school in that district the ensuing summer, remonstrates against the appointment, and accuses the plaintiff of want of chastity in several instances, and pledges himself to prove the charges.</p> <p>The defendant’s counsel did not contend that the charges were true, but they put the defence wholly on the absence of malice ; asserting that the defendant believed the charges to be true when he made them, and that he not only had a right, but that it was a duty which he owed to his children and grandchildren, and to the preservation of the public morals, to submit them to the school committee for the purpose of procuring the removal of the plaintiff from the school ; and that he haa proceeded in this n^atter with great deliberation. The son of the defendant testified, that the defendant employed him to make inquiries, and to ascertain the truth of the reports which were in circulation respecting the plaintiff, and that he did so, and that he procured certificates in writing corresponding with the charges, which he delivered to the defendant before he wrote the supposed libel.</p> <p>Much evidence was introduced, on both sides, as to the plaintiff’s general character for chastity, and as to malice on the part of the defendant.</p> <p>On this last point the plaintiff proved, that after the action was commenced, and before the sitting of the Court of Common Pleas to which the writ was returnable, the defendant caused a number of witnesses (among whom was the plaintiff’s father,) to be examined before a magistrate in Methuen, in a public manner, as well to prove the truth of the charges contained in the supposed libel, as to show that the plaintiff’s general character for chastity was bad, when no legal cause existed, or was stated by the magistrate, for the taking of the depositions ; the defendant suggesting merely, that he was apprehensive the witnesses would go out of the commonwealth before the sitting of the court, when there was no evidence that any of them had such an intention. The counsel for the plaintiff argued, that the defendant knew the charges to be false when he made them, for that it did not appear that he had at present any new light upon the subject, and yet he had not thought it expedient to plead the truth of the charges, and to give the plaintiff an opportunity of disproving them.</p> <p>The counsel for the defendant contended, that even if he knew, when he made the complaint, that the charges were false, no action would lie, because the complaint was made to persons having competent authority to redress the grievance complained of. But the judge instructed the jury, that as the defendant did not contend that the charges were true, the verdict should be for the plaintiff, if she had proved that they were made and published maliciously ; but that if the jury believed the defendant wrote and published the supposed libel under a belief that the charges were true, and with an honest intent to cause the plaintiff to be removed from the school for a want of chastity, the verdict should be for the defendant; that it was necessary to prove that the libel was malicious, as well as false, and that if the plaintiff did not prove the malice beyond any reasonable doubt, such doubt should operate in favor of the defendant; adopting the principle, that it was of the utmost importance that instructers of youth should be of pure morals. The judge remarked, that malice might be implied or expressed ; and upon the subject of implied malice, he referred to the evidence produced by the defendant, that he had employed his son to make inquiries, and to the fact, that the defendant was in possession of the certificates, and had formerly undertaken to prove the charges, but at the trial did not put the truth of them in issue. The jury were told, that they might consider what was the fair presumption arising from such conduct; whether it was, that the defendant had acted honestly, or maliciously, in making the charges ; whether it was, that he then believed them to be true, or that he then knew them to be false.</p> <p>The jury found a verdict for the plaintiff for 1400 dolíais damages. The defendant moved for a new trial, because the damages were excessive ; because the jury were misdirected upon the subject of implied malice, as arising or to be presumed from the conduct of the defendant as above stated ; and because no action will lie on the supposed libel, however false and malicious it may have been, for that it was in the nature of a petition to the General Court or any body of men authorized to grant redress.</p>

The petitioner, a private in a company of militia, obtained from the surgeon of his regiment a certificate, (pursuant to St. 1809, c. 108, § 29,) dated May 3, 1825, that “he ought to be excused from military duty for one year, on account of his being deprived in a great degree of the use of the forefinger of his right hand,” and on the back of the certificate the captain of the company wrote that he was exempted for one year from that- date; which was approved-by the colonel…

The petitioner, a private in a company of militia, obtained from the surgeon of his regiment a certificate, (pursuant to St. 1809, c. 108, § 29,) dated May 8, 1825, that “he ought to be excused from military duty for one year, on account of his being deprived in a great degree of the use of the forefinger of his right hand,” and on the back of the certificate the captain of the company wrote that he was exempted for one year from that date; which was approved by the colonel…

Action of covenant broken, on a charter-party. Under leave to plead double, the defendant filed a plea of non est factum, and also of payment.

<p>Upon a complaint brought before the Justices’ Court for the county of Suffolk by the petitioner, as c.erk of a company of militia, against the respondent, for neglecting to attend several musters of that company in 1824, it was admitted by the parties, that the respondent was a schoolmaster in Boston, and regularly employed as such, when the supposed neglects took place ; that he instructed children in the common branches of education, namely, reading, writing, arithmetic, grammar, geography, history, natural philosophy, &c. ; that he occupied a schoolhouse, in which he was regularly employed from eight o’clock A. M. to one o’clock P. M. and from half-past two or three to five or six P. M. every day in the week, except Sunday ; that he instructed from twenty-five to thirty-five boys, and as many girls ; and that he was not employed by the municipal government of Boston, but kept a private school on his own account. The respondent was acquitted, and thereupon the complainant presented his petition to this Court for a writ of certiorari to the Justices’ Court.</p> <p>The case was argued before Parker C. J., who laid it before the whole Court.</p>

<p>Whether a stagecoach when actually travelling is liable to be stopped and attached on mesne process, qucere.</p> <p>But a stagecoach was attached about the time fixed for its departure, when part of the horses were fastened to it and the passengers were engaged and ready to take their seats, and the attachment was held valid.</p> <p>So of an'attachment of a stagecoach which had been driven into the yard of the tavern where it was accustomed to put up at the place of its destination, but had not distributed all its passengers.</p>

<p>Under St. 1783, c. 39, § 8, the proprietors of common and undivided land may make a valid partition by vote, and without any instrument under seal.</p> <p>Pursuant to votes, such proprietors laid out several large tracts of land, each into 27 equal parcels, and having arranged themselves into 27 classes as nearly equal in interest as might be, assigned by lot to each class one parcel of each tract, to be held in common by the members of the class and to the exclusion of the other proprietors. Held, that such partition was valid.</p> <p>If in a partition the parcels of land are made certain by the metes and bounds referred to, an error in the courses and distances stated will be immaterial.</p> <p>A partition under St. 1783, c. 39, will be valid, notwithstanding that in some instances the shares are assigned to the heirs, sons, &c., of A, B, &c., without naming the assignees except by words of description.</p> <p>If such proprietors appoint a committee to survey a tract of land, and to lay it out m lots preparatory to a partition, they may either assent to the doings of the committee, or make partition without regard to them 5 so that if only a part of the members of the committee should act, and the proprietors should ratify their doings, and make partition accordingly, the proceedings would be valid.</p> <p>If a petition for partition is discontinued, it will not defeat a voluntary partition made by the proprietors themselves while it was pending.</p>

Assumpsit. On a motion by Leland, that the Court would order a nonsuit, upon an agreement of the plaintiffs that the action should be discontinued —

<p>A notification to a creditor that his debtor intends to take the benefit of St, 1787, c. 29, [see Revised Stat. c. 98,] for the relief of poor debtors, cannot be avoided by showing that it was signed in blank by the justice of the peace, and, while he was out of the commonwealth, was filled out and served.</p> <p>The certificate of the two justices of the peace who administer the poor debtor’s oath, that the return of such notification is conformable to law, cannot be contradicted by extrinsic evidence.1</p> <p>The acts of such justices where they have no jurisdiction, may be avoided by plea or evidence.</p>

<p>A town may acquire a right of way by grant, and exclusive uninterrupted user bj the inhabitants for twent}7 years, unexplained, is evidence of a grant 3 but such waj will be a private wa}7, and a nuisance on it will not be indictable.</p> <p>A public town way can be established only in the mode prescribed by SC. 1786, c. 67 and a record of the establishment of such a way cannot, it seems, be presume from a user for any length of time.</p>

<p>Assumpsit against the defendants as indorsers of two promissory notes made by Wentworth & Low, of Boston, and negotiated to the plaintiffs by the defendants.</p> <p>One of the notes was made on the 22d of April, 1824, far the sum of 510 dollars, payable in four months with grace. The declaration alleged that it was presented to the makers and payment demanded.</p> <p>In respect to this note, Andrew Johonnot, a clerk in the City Bank, testified, that the third day of grace falling on the 25th day of August, which was the day of the annua commencement at Harvard College, and a holiday on which no business was done at the bank, he on the 24-th made out a written demand on the makers and a notice to the indorsers, bearing date of the 25th ; that on the 24th, in the afternoon, after the usual hours of business at the bank, he went to the store of Wentworth & Low, in Boston, and finding the dooi closed, he put the demand on them under the door and into the store ; and that immediately afterwards he went to the store of the defendants in Boston, and finding the door shut, he put the notice for them under the door. The witness further testified, that it hat^ been the invariable custom of the City Bank to suspend all business on commencement day, and that when notes fell due on that day, it was the practice to give notice on the day preceding, as in cases where they became due on Sunday; that he understood this to be ?ne custom of the other banks in Boston, and that he knew it was their custom not to do business on commencement day, nor on the days of election, fourth of July, and Christmas, all of which were regarded as holidays.</p> <p>Joseph Chapman, cashier of the Boston Bank, testified that it was the custom at that bank, and at all the banks in Boston, to consider the days before specified, as holidays, and when a note falls due on one of them, to give the notice on the day preceding ; but that it was common at the Boston Bank to write on the back of the notice, that the next day being a holiday, no business would then be done at the bank. He also testified that the defendants had done business at the Boston Bank for many years.</p> <p>Matthew S. Parker, cashier of the Suffolk Bank, testified that it was the custom with the banks in Boston, and particularly the Suffolk Bank, to treat notes falling due on either of the days in question, precisely as if they had fallen due on Sunday ; that it was most usual to date the notifications, in such cases, of the day when they were delivered, but that they sometimes bore date of the third day of grace.</p> <p>John Pickens, cashier of the City Bank, testified in a similar manner as to the general custom of the banks in Boston, and also stated that the defendants had done business at the City Bank and had had frequent discounts there.</p> <p>James Dalton, cashier of the Manufacturers and Mechanics Bank, a witness on the part of the defendants, testified that the usage at that bank was, when a note falls due on a holiday, to make the notification bear date of that day, and to direct the messenger to deliver it on the day of the date, and unless the note is made payable at the bank, to present the note with the notification ; that when a note falls due and notice is given on a holiday, the fact is noted on the back of the notification ; and that the bank is not open on such days. they were satisfied that such was the particular custom ol the City Bank, and this expressly known to the defendants when they negotiated the noté,— the defendants would be bound by the custom, and the jury would consider the demand on the makers and the notice to the defendants as seasonably and properly made; but that if they were not satisfied of this general custom, or of a particular custom of the City Bank expressly made known to the defendants, the verdict should be for the defendants.</p> <p>The verdict was for the plaintiffs ; but if the Court should be of opinion that the demand on the makers, or the notice to the indorsers, was, in manner or time, insufficient or unseasonable, or that the evidence was inadmissible under the declara tion, a new trial was to be granted.</p> <p>The other note in suit was given for the sum of 480 do lars, and fell due on the 28th of September, 1824. The defendants pleaded a tender of the sum of 480 dollars on the 29th of September. The plaintiffs replied that they ought not to be barred by reason of the tender, for that on the 28th of September a demand of payment was made on the makers, and payment not being made, the plaintiffs on the same day duly notified the defendants thereof, and required payment of them ; that the de fen dan ts thereupon did not pay the note, and the plaintiffs after-wards, on the same day, caused it to be noted for protest by a notary" public, and due notice thereof to be given to the defendants on the same day. To this there was a general demurrer</p>

<p>Though a tenant in common or partner may now have relief in equity against his cotenant or copartner, under St 1823, c. 140, yet if the joint interest is determined or the partnership dissolved, all accounts and liabilities being settled and discharged, and a balance remains due from one cotenant or copartner to another, *' iceay be recovered in an action of assumpsit, and without any express promise.</p> <p>The plaintiff and defendant being part owners of a vessel, of which the defendant was master, and being jointly concerned in a whaling voyage, undertaken by such vessel, the defendant, in the course of the voyage, landed some prisoners from a privateer, and also saved some articles from a wreck $ for each of which services he received a compensation. On his return he settled up the voyage, but without rendering any account of these two items of compensation. Held, that the plaintiff might recover her proportion of the same in the form of assumpsit.</p>

<p>Assumpsit for money had and received. The case came before the Court upon a statement of facts.</p> <p>Nathan Bond was formerly an underwriter in an insurance office kept by Joseph Taylor. Bond became bankrupt, and the plaintiff was appointed assignee on his estate, under the late bankrupt law of the United States. Taylor kept a running account with Bond of all premiums received and losses paid by him for Bond, the balance of which, on settlement, was found to be in favor of the broker, amounting to more than the sum demanded in this suit. This balance was never paid, nor was it proved under the commission. For some of the losses paid by the broker, as above mentioned, compensation was claimed, for the benefit of whom it might concern, under the treaty with Spain of February 1819, and was allowed and paid to the defendant as agent in this behalf; and the amount is now claimed from him by the executor of Taylor. The commissioners under the treaty made it a rule, not to award compensation to the keepers of insurance offices, but to the owners of the property spoliated, or their assignees, in fact or in law, stating that this general rule, made for convenience, was not to prejudice the right or claim of any other persons to the sums awarded. The policies and deeds of abandonment were retained by Taylor until his decease, and afterwards remained in the hands of his executor, and were produced and furnished by him in support of the claim before the commissioners under the treaty.</p> <p>The question submitted to the Court was, whether the executor of Taylor had such a lien on the policies in his hands, for the balance of the account, as to be entitled to apply the proceeds to pay such balance. If the Court should be of opinion that he was so entitled, the plaintiff was to become nonsuit ; otherwise the d< fendant was to be defaulted.</p>

<p>When the question is of the real subject matter of a suit, in order to show a bar to another suit, or to lay the foundation of an action of indemnity, the identity of the cause of action may be averred, and may be proved by other than record evidence.</p> <p>By a contract made in this State, A engaged 11 to repay to B, of New Hampshire, any moneys, not exceeding 1500 dollars, which B should legally be compelled to pay to C on account of money received of C on account of, and in part pay for money due on D’s bond to B.” C recovered of B, in an action brought in New Hampshire, a larger sum than 1500 dollars. Held, that the words legally compelled meant compulsion by legal process, without reference to the laws of any particular State; that as the particular ground of the recovery in C's action did not, and was not required to appear by the record of the judgment, it might be shown by parol evidence} and that the measure of damages in an action on A’s contract should be the 1500 dollars, with interest from the time of a demand made subsequently to the recovery against B.</p>

<p>3*he master and crew of a ship engaged on a whaling voyage, who are to receive, in lieu of wages, a proportion of the net* proceeds of the oil which shall be obtained, are not partners with the owners of the ship, and need not be joined in an action brought by the owners to recover of a third person a part of such oil.</p> <p>When a witness, being asked whether he is interested in the suit, declares (hat he has parted with his interest, and without further question is allowed to testify in chief, a new trial will not be granted because the deed of transfer or a release was not exhibited.</p> <p>By a usage in the whaling business, masters of ships meeting at sea sometimes enter into a contract of mateship; so that if the ships cruise together, they divide equally the oil obtained, before they separate 5 if they cruise separately, they make an equal division upon their first meeting afterwards ; if the ships accidentally separate and do not meet again, neithei can claim of the other, if one returns home full; but if they do meet abroad, and neither has filled, the settlement and division take place immediately. Held, that this was a reasonable usage, and binding on the owners of the ships, where they do not prohibit the masters from making such contracts.</p> <p>Although it is usual in mateships, for the masters to make the division of the oil when at sea, yet if one of them refuses to deliver what is due from him, an action will be sustained, after the return of the ships, between their respective owners.</p>

<p>An original writ prosecuted by an individual was indorsed thus — “ A. B. by C. D. his attorney.”—Held, that the attorney had thereby made himself responsible for the costs which the defendant should recover, and consequently had disqualified himself to be a witness on the part of the plaintiff.</p>

<p>The judge of probate of this county having decreed, that letters of administration on the estate of Jean C. Picquet should be granted to his son Antoine F. Picquet, an appeal was entered by James Swan, who alleged as reasons for the appeal, that it appeared that the deceased was a French subject domiciled in Paris, and that he died there, not having left any estate within this commonwealth ; that no more was pretended, than that at the time of his decease he was possessed of certain bills of exchange, which had since been brought into this State, Swan, the acceptor, being at the time of making them, and ever smce, resident in France, and within the same jurisdiction within which Picquet the eldei died ; that there was no proof that the supposed debtor had any property within this State ; and that the acceptance of the bills was obtained by fraud and duress, and Swan, in truth, was not a debtor to Picquet the elder at the time of his decease.</p> <p>Antoine F. Picquet now moved that the appeal should be dismissed, on the ground that the appellant had no interest in the matter thereof, which could be recognised by the Court, and was not by law entitled to maintain the appeal.</p>

<p>A bill of particulars should give as much information as a special declaration, so tha the defendant may know the real ground of the action.</p> <p>It is amendable like a declaration.</p> <p>If it is insufficient, or not attempted to be supported by proper evidence, a nonsuit may be ordered.</p> <p>All gaming is unlawful; and money lost at gaming, whether by fair or by foul play, cannot be recovered back by the loser, nor by his executor or administrator, in an action commenced after three months from the losing.</p>

<p>A testator, after devising one fifth part of his estate to each of his children, directed that all he had advanced to them respectively, and for which he had claims and demands, should be considered as a part of his estate and as a part of the devises. These claims against the different children were unequal in amount, and consisted of promissory notes on interest and book charges. It was held, that the sum for which any note was given, should be considered as an advancement, not bearing interest, and that the promisor should not be allowed to pay it as a debt in order to entitle himself to a fifth part of the testator’s real estate.</p>

<p>Whether in an action upon a negotiable promissory note, given for the purchase money of land conveyed by deed with the usual covenants of seisin and warranty, the action being between the original parties, it is competent for the defendant to set up, by way of defence, a total want of title in the grantor at the time of the conveyance, and an eviction of the grantee, qucere.</p> <p>But where the promisee had died insolvent, and the action was brought by the administrator of an indorsee, who at the time of the indorsement had notice that the title was questioned, such defence was allowed under the general issue, since the defendant could not plead the demand on the covenants by way of set-off, nor avail himself of it in a cross action\ and in such a case the plaintiff may introduce evidence to show that the value of the land, at the time of the eviction, was less than the amount of the note.</p> <p>A knowledge on the part of such indorsee, that the title to the land is questioned, ar,i that the grantee intends to resist payment of the note in case he shall be evicted, without a knowledge of any particular fact tending to invalidate the title, is sufficient notice to put him on his guard, and to let the grantee in to make such defence.</p>

<p>The legislature have authority to enact, that the interest which an inhabitant of a city may have in a penalty for the breach of a by-law thereof, shall not disqualify him to act as a judge, juror, or witness, in a prosecution to recover such penalty.</p> <p>The city of Boston have authority to make a by-law prohibiting persons having the care of a wagon, cart, &e., from driving their horses on a trot or gallop in the streets of the city, such by-law not being in restraint of trade, but a reasonable regulation of it.</p> <p>Although the object of such by-law be to prevent passengers in the streets from being endangered by fast driving, yet in a prosecution on (he by-law it is not necessary to prove that any individual was actually endangered thereby.</p> <p>Upon an indictment for a breach of such by-law, evidence of the defendant's general character as a careful driver, is inadmissible.</p> <p>So of evidence of permission from the mayor and aldermen of the city to drive faster than the by-law allows.</p> <p>Whether a by-law be reasonable or not, is for the court to determine, and evidence to the jury on that question is inadmissible.</p> <p>An act of the legislature, providing that in prosecutions on the by-laws of Boston it shall not be necessary to set forth the by-law at large in the complaint, is not unconstitutional as conferring an exclusive privilege.</p> <p>Bo of St. 1817, c. 50, providing that such prosecutions may be in the name of the commonwealth: and that statute is not repealed by the act by which the town of Boston was incorporated as a city.</p> <p>Whether a complaint for a breach of a by-law of Boston, concluding against the form of the by-law in such case made and provided, be sufficient, without concluding also against the form of the statute, qucere.</p>

<p>This was an action of assumpsit brought to recover one third part of the rents and profits received by the defendant from certain real estate described in the plaintiff’s writ. The case was submitted to the determination of the Court upon an agreed statement of facts.</p> <p>On the 18th of November, 1814, Abraham Gibson, the husband of the plaintiff, being seised in fee simple of the estate in question conveyed the same to one Brooks by deed of mortgage, conditioned for the payment of a promissory note given by A. Gibson to Brooks for 15,000 dollars in one year (afterwards extended to two years) from date and interest: The plaintiff joined in this deed in relinquishment of her right of dower. On the 10th of July, 1816, A. Gibson died, and E. Farley and J. Gibson were appointed administrators on his estate. They afterwards represented it as insolvent, and thereupon a commission of insolvency issued ; and Brooks presented his note to the commissioners, who allowed it as a debt existing against the estate, and returned it in their report to the judge of probate. The administrators paid to the other creditors of the estate 90 per cent, on their demands ; but before any distribution was made, the amount of the note to Brooks was struck from the list of claims. On the 26th of November, 1817, the administrators, under a license from this Court, for the consideration of 4300 dollars, conveyed to the defendant all the interest which A Gibson had at the time of his decease in the estate in question ; and the defendant at the same time gave them a bond obliging himself to pay the debt due to Brooks. The defendant immediately gave notice to the tenants of this estate that he had purchased it, and required them thereafter to pay the rents to him, which they consented to do, and ever since have done. On the 8th of January, 1818, Brooks, in consideration of 16,540 dollars paid him by the defendant, executed a deed, purporting to assign to the defendant and his heirs the mortgaged premises; and on the same day the defendant conveyed the same in mort gage to John Parker, with condition for the payment of 6000 dollars in eighteen months and interest, which was afterward, on the 6th of April, 1821, paid, and the mortgage discharged.</p> <p>On the 13th of February, 1818, the debt mentioned in the ondition of Brooks’s mortgage being due and unpaid, (unless the facts stated operated as an extinguishment of it,) and the time limited for the payment being expired, the defendant, in presence of C. Haven and R. P. Tolman, two of the tenants, entered the mortgaged premises, and caused those persons to subscribe a memorandum, which was agreed to be evidence in the case, stating that on the day last mentioned ^le defendant, in their presence, took peaceable possession, as he said, for the purpose of foreclosing the mortgage. Ever since this entry the defendant has been in quiet possession, and has received the rents from the tenants to whom the premises were leased by him. No memorandum of this entry and possession was made in the registry of deeds, nor was any notice given of the same, except that the defendant mentioned it to Farley and A. Cushing, with whom he happened to converse on the subject ; and no part of the debt was paid or tendered to Brooks or the defendant, or in any way satisfied, unless by operation of law upon the facts agreed.</p> <p>The plaintiff did not, before the commencement of this suit, demand of Brooks, or of the defendant, to set off her dower in the premises, nor has it ever been set off to her; but she did, on the 21st of August, 1817, demand of the administrators and of the heirs of her deceased husband, to set off her dower in all the real estate of which he died seised and possessed.</p> <p>If, upon these facts, the Court should be of opinion that the plaintiff could maintain the action, judgment was to be rendered for damages ; otherwise she was to become nonsuit.</p>

<p>Assumpsit. The defendant was called in the writ, of Louisville in the State of Kentucky, and there was no service except by the attachment of two parcels of land. The defendant, upon oyer of the writ, declaration and return of the officer, pleaded in abatement of the writ, that he had no right, title, interest or property in the land, that could be attached on the writ ; and issue was taken on that fact.</p> <p>The plaintiff, to maintain the issue on his part, produced a deed indented between John Peck and Whiting the defendant, dated the 31st of March, 1810, and recorded on the 11th of April following, in which Peck, after a recital that he stood indebted to Whiting in the sum of 3000 dollars, for which he had given his promissory note of even date with the indenture, payable in twelve months, conveyed to Whiting in fee a parcel of land, in trust, that Whiting, his heirs or assigns, should and might, at the expiration of thirteen months from the date, or at any time thereafterwards, sell the granted premises, if he or they should think fit, by public auction, and apply the proceeds of such sale, in the first place to pay the 3000 dollars and interest and the expenses of the sale, and then to pay</p> <p>over the surplus, if any, to Peck, or his assigns ; provided, nevertheless, that if Peck, his heirs, &c., should pa) the 3000 dollars and interest within the thirteen months, the indenture should be void.</p> <p>The plaintiff also produced another deed indented between Peck and Whiting, dated the 2nd of February 1810, and '■ecorued the next day, conveying another parcel of land to Whiting, with a similar power to sell after fifteen months, in case the sum of 3500 dollars and interest, for which a promissory note had been given, should not be paid within that time, and a similar proviso, that upon a payment within that time the indenture should be void.</p> <p>The defendant produced a deed dated the 8th of March, 1810, but not recorded, whereby he conveyed to Ebenezer Francis the deed and note last mentioned, and all his right, title and interest in the parcel of land described in the deed, on the same trust and subject to the same condition. He also produced a deed of release and warranty from Peck to Francis of the same parcel, dated the 27th of November, 1811, and recorded on the 16th of January, 1812.</p> <p>Upon these facts the defendant contended, that his interest in these parcels of land, being only that of a mortgagee, was not liable to be attached as his property, but the Chief Justice instructed the jury otherwise ; and thereupon a verdict was returned for the plaintiff, subject to the opinion of the whole Court.</p>

<p>Trover for a horse. One of the defendants was defaulted. Thwing, who was an infant, defended by guardian.</p> <p>The plaintiff offered evidence, that the horse was let by him to the defendants to drive in a chaise to the Punch Bowl in Brookline, and that they went to Fresh Pond in Cambridge without leave, and afterwards to the Punch Bowl; and that the horse was returned much injured.</p> <p>The counsel for Thwing contended, that as this was a transaction arising originally on contract, in which the infancy of Thwing would have been a good defence, the plaintiff should not recover upon the same facts by changing the form of his action to tort.</p> <p>But the jury were instructed, for the purposes of this trial, that the action would lie against Thwing, notwithstanding hii infancy ; and a verdict was found for the' plaintiff.</p> <p>If the Court should be of opinion, that the instruction tc the jury was wrong, the plaintiff was to be nonsuited ; bu otherwise, judgment was to be entered according to the ver diet.</p>

<p>Trover for several hogsheads of molasses. Plea, the general issue.</p> <p>To prove tneir property, the plaintiffs produced a bill of lading, made on the 11th of May, 1822, of certain articles shipped on board of the brig Enterprise, Paul E. Merrill master, then at Portland, and bound for the West Indies, in the name and for the account of William Gordon the owner. On the bill of lading was an indorsement by Gordon, stating that “ the property named in the bill of lading, or the proceeds thereof, was to be subject to the orders of the plaintiffs, anti pledged to them for the security of 7400 dollars,” which they had advanced to Gordon, to enable him to procure the cargo. This assignment, though bearing date of the 11th of May, was not made and signed until after the 1st of June ; but it had been agreed between the plaintiffs and Gordon, before the cargo was shipped, that the bill of lading should be so assigned to them as security. The vessel sailed on the 16th ol May ; no actual possession of the cargo having been taken by the plaintiffs, and Merrill having no knowledge that the bill of lading was to be thus indorsed, or that the plaintiffs had any interest in the cargo. In the instructions given to Merrill be fore he sailed, dated May 13th, 1822, he is directed to go to Point Petre, in Guadaloupe, where, says Gordon, “ you are to do the best you can for my interest; and in the prosecution of the voyage, your own judgment will be relied upon in its management as in your opinion will be most advantageous.” Merrill proceeded to Point Petre, where he sold part of his cargo, and with the proceeds purchased the molasses which is the subject of this suit. Thence he sailed with the molasses to the island of St. Thomas, where he received two letters from Gordon, informing him of Gordon’s failure and directing him “ to ship the cargo of the Enterprise to Peters, Pond, & Co. of Boston,” and giving the form of a bill of lading for that purpose. The defendants had drawn a bill on Gordon for upwards of 2000 dollars which he owed them, and this bill had been refused acceptance, though intelligence of the refusal had not reached the defendants. Upon learning the failure of Gordon, they demanded payment of their debt of Merrill, and proposed to purchase the molasses and to pay him therefor, deducting their debt from the price. Merrill not assenting to this, they represented to him, that they should take measures, by detaining the vessel or otherwise, to compel payment. He thereupon sold the molasses to them, at an agreed price, and received the balance (2000 dollars), after deducting the debt (2,139 dollars, 49 cents), and took a discharge of the debt for Gordon. This balance was paid over by Merrill to an agent of Gordon, and was appropriated for disbursements of other vessels belonging to him, but which also had been assigned to the plaintiffs for security for advances ; so that the plaintiffs had the benefit of.those disbursements. Merrill gave bills of lading of the molasses to the defendants, and agreed to carry it for them to New York at a stipulated freight. He sailed accordingly, and was driven by stress of weather into St. Domingo ; and there the vessel was lost, and the cargo sold for the benefit of the underwriters. Merrill deposed that he was the brother-in-law of Gordon, and that he had sailed with such general instructions five voyages before. It appeared also, that on those voyages he traded according to his discretion for the account of his owner, until he obtained a cargo with which he was willing to return home, and that Gordon was satisfied with his conduct. Merrill further stated, that there was an understanding between Gordon and himself, that he might dispose of so much of the cargo as would sell at Point Petre, and ship the proceeds to Portland, and then go to St. Domingo, there to sell the rest of the outward cargo, and ship the proceeds to the United States ; and that he should then go into the freighting business among the islands ; that the principal object was freight; that in former voyages he bad carried on freighting business between St. Domingo and St. Thomas; and that when he sailed on this voyage, it was supposed that similar business would be alike advantageous. He said, that as be had no opportunity to ship the proceeds of his outward cargo to the United States, he felt authorized to sell them to any person, with a view to the freighting business. The defendants did not see the original instructions or letters to Merrill, nor make inquiry concerning the extent n his authority ; neither did he inform them concerning the same ; but they must have known that the molasses was taken on board as return cargo. The plaintiffs, on the 4th of December, 1822, wrote to the defendants, complaining of Merrill’s having paid them 2,139 dollars, part of the proceeds of the cargo of the Enterprise, saying that the cargo belonged to themselves, and that the money was paid wrongfully, and claiming to have it repaid. The plaintiffs also brought an action of assumpsit against the defendants to recover that same sum, but it was discontinued before the commencement of the present suit.</p> <p>By direction of the Chief Justice, who tried the cause, a rerdict was returned for the plaintiffs, subject to the opinion of the whole Court on the foregoing facts.</p>

<p>The question was, whether a person, who is duly enlisted in a volunteer company raised within the limits of the brigade within whose limits he resides, is obliged to produce to the commanding officer of the standing company within whose limits he resides, a certificate pursuant to the 4th section of St. 1825, c. 153 ; which enacts, “ that any non-commissioned officer or private of any company raised at large, by producing a certificate from the commanding officer of the company to which he belongs, that he does active duty in said company, and keeps himself properly armed, equipped, and uniformed, shall be exempted from all duty in the standing company within whose bounds he may reside.”</p>

<p>The provision in St. 1821, c. 109, § (6,) [see Revised Slat. c. 87, § 3,] that the justices of the Police Court of Boston shall, under the appellation of The Justices' Court for the County of Suffolk, have original, exclusive jurisdiction and cognizance of all civil suits and actions which before might have been heard and determined by any justice of the peace of that county, is not unconstitutional 5 neither as interfering with the power of the governor to appoint all judicial officers, nor as abridging the constitutional powers of justices of the peace, nor because it depended for its force upon the contingency of the acceptance by the inhabitants of Boston of the act establishing the city of Boston, nor because its application was not general to the justices of the peace in all the counties in the commonwealth.</p>

<p>ne provision m St. 1782, c. 11, § 6, that pleas in abatement in the Court of Common Pleas" shall be filed before the jury is empannelled, is no longer in force$ and a ruie of that court, that such pleas “ may be filed at any time during the first four days of the return term, and not afterwards,” .is vaJid by virtue of St. 1820, c. 79, 5 7.</p> <p>So long as a rule of court remains unrepealed, it cannot be dispensed with in a particular case. Thus, where a plea in abatement, in consequence of misinformation from a judge of the Court of Common Pleas, was not offered until the fifth day of the term, and was then, by leave of the judge, filed as of the fourth day, the filing was held to be improper, being in contravention of the rule above recited.</p> <p>The plaintiffs did not appeal from such decision of the judge, but demurred to the plea, assigning for cause, that it was filed too late 3 but this Court, notwithstanding the irregularity in bringing up the case, seeing upon the record produced that the plea was filed contrary to the standing rule of the court below, rejected such plea and awarded a respondeos ouster.</p>

<p>A member of the House of Representatives can, constitutionally, be elected to a seat in the Council.</p> <p>Tne .constitution allows the filling of a vacancy in the House of Representatives, which has been occasioned by the election of one of its members into the Senate or Counci.</p>

<p>Husband and wife being seised in fee of land in her right, in consideration of the marriage and of twenty shillings, by deed acknowledged and recorded, 44 gave, granted, bargained, sold, enfeoffed, and conveyed ” the same to J. S. in fee, to the use of the husband and wife, their heirs and assigns, and the heirs and assigns, of the longest liver of them. Held, that the deed should be taken, not as a bargain and sale or covenant to stand seised to uses, whereby there would be a use upon a use, but as a feoffment to uses ; so that J. S. stood seised to the use limited in the deed, and then the statute of uses executed the use, thereby making the husband and wife complete owners of the land as joint tenants in fee.</p>

<p>In this action Thatcher demanded against Omans and George B. Nye possession of one undivided seventh part of a tract of land in Rochester ; alleging that Sarah Gill, wife of Moses Gill, on the 1st of August, 1771, was seised in fee of the premises, and that on the 3d of August she died so seised, without issue, and the right descended to the demandant, and that the tenants entered, &c. Moses Gill was admitted to defend, and he and the tenants pleaded that the tenants were not guilty of the disseisin complained of, and thereupon issue was joined. The jury found a special verdict, stating that on the 4th of December, 1775, Sarah Gill, wife of Moses Gill, was seised in fee simple ; that on the same day Moses and Sarah being seised in fee in her right, and being of full age, made and executed the deed hereafter mentioned, to one John Scott, for the considerations therein expressed, which deed was thereupon duly acknowledged and recorded ; that Sarah died on the 5th of August, 1771, having never had issue, and that the demandant was one of her heirs at law; but whether, &c.</p>