Volume 21 — Massachusetts Reports

<p>This Court have power to decree specific performance of a bond .with a penalty, con* ditioned for the conveyance of land.</p> <p>A bond with a penalty, with condition to convey land to the obligee or his appointee, may be assigned after a forfeiture; and the assignee may maintain a bill in equity for a specific performance.</p> <p>The obligors cannot question the validity of such assignment on the grouuu that it was made without consideration.</p>

<p>Where a mortgagee, upon a demand to render an account of the sum due on the mortgage, said he had no other account to render, than one which had been rendered two years before, and it appeared that that account was erroneous, it was held, that there was a sufficient demand and refusal to account, to sustain a bill in equity to redeem under St, 1821, c, 85.</p> <p>Where the grantee of land, under a deed with warranty, was evicted, and the grantor, in discharge of his covenants, gave the grantee promissory notes, secured by a mortgage, to the value of the land at the time of the eviction, it was held, on a bill to redeem, that there woe nothing contrary to equity in such settlement, whatever might have been the rule of law at the time, determining the measure of damages in cases of eviction.</p> <p>Held, also, that a judicial decision, fixing a measure of damages In such cases, will not impair previous agreements founded on a different measure of damages.</p>

This was a writ of entry, in which the demandants counted on the seisin of A. Dewey, their father, and a disseisin by the tenant.

This was an appeal by one of the heirs at law of John Ashley, from a decree of the judge of probate, determining that the sum of 1175 dollars 82 cents was charged to the appellant as an advancement. It was composed of various items charged by the deceased on his book of accounts as follows : — Sheffield, May 1,1807. HENRY ASHLEY Dr. To 500 dollars cash ------ 500 00 To 10 dollars to Parks ----- - 10 00 Feb. 1810. To 35 dollars cash, Lee - - - 35 00 March, 1810.

<p>The petitioner had been fined by a justice of the peace, for neglecting to appear at a muster of a company of militia on the 3d of May, 1825, in the town of Rowe. He now prayed for a writ of certiorari, — because, being an inhabitant of the town of Heath, he was adjudged liable to duty in the militia company in the town of Rowe, by virtue of a sup ■ posed order of the governor, with advice of council, passed on the 21st of February, 1824, disbanding the company in Heath and annexing the same to the companies in Charlemont and Rowe; — because it was adjudged that a copy of the supposed order certified by the secretary of the commonwealth, without oath, was legal and sufficient evidence to prove the existence of the order ; — and because, the supposed order being upon the condition that the company in Heath should, after due notice, refuse and neglect to choose officers wno wowd serve, the company, pursuant to such order, were notified at a public house, in Heath, and in no ■ r^her way, to meet for the election of officers, and about half of the company met accordingly, but failing upon one election to choose a captain who would accept the office, the company was thereupon declared by the officer presiding at the election to be disbanded, and the petitioner, with others, annexed to the company in Rowe.</p> <p>The facts in the case and the questions raised in the argument, will appear sufficiently in the opinion of the Court.</p>

<p>Thu judge of probate has authority, upon the application of any one interested in a will, to summon the executor, or other person having custody of it, to exhibit it for probate; the statute penalty for neglecting to exhibit a will, being merely cumulative. Thus it was held, that a creditor of the testator and of the executor and principal devisee, might claim to have the will exhibited for probate.</p> <p>So, it seems, the judge of probate may ex officio, or at the instance of any one, cause a will to be so exhibited.</p> <p>A will does not become void by the refusal of the executor to accept the trust Whether it would become void by the refusal of all the legatees and devisees to take under it, quceres but nothing short of an express renunciation, and that perhaps should be verified by the record, can be taken notice of in a court of probate»</p> <p>Whether a legatee or devisee can disclaim his legacy or devise to the prejudice of hia creditors, quaere.</p> <p>The widow and next of kin of a testator, being cited to show cause why the will should not be proved and administration granted cum testamento annexa, appeared and opposed the proceedings, but nevertheless, the judge of probate approved the will, and at tbe same time granted such administration to a creditor. It was held, that after the determination that administration should be granted, the widow, next of kin and the devisees should have an opportunity to elect whether they would take out administration, or yiéld it to the creditors.</p> <p>One died intestate, leaving a widow, child, and brother; the child died, leaving the widow its heir; and at the instance of a supposed creditor, the judge of probate decreed that administration should be granted on the intestate’s estate. It was held, that the brother had no right to appeal from the decree, but that the right belonged to the widow. See note.</p>

<p>(Jnder St. 1821, c. 94, § 3, enacting that a town, in which a pauper has a settlement, shall not be subjected to a greater expense than at the rate of one dollar per week, for the support of the pauper in another town, provided such first mentioned town shall cause the pauper to be removed within thirty days after receiving legal notice that such support has been furnished, the removal is a condition precedent, which must be strictly performed: so that where a pauper, while her town was making preparations for her removal, removed of her own accord, it was held, that the town was liable for the reasonable expenses incurred for her support, although they were greater than at the rate of one dollar per week.</p>

<p>To sustain an action against a person of full age, on a promise made by him wflen an infant, there must be an express ratification:—as by saying,ee I ratify and confirm,” or, “ I agree to pay the debt.” A mere acknowledgment of the debt is not sufficient.</p> <p>If, upon a replication of a new promise after coming of age, the evidence is of a promise to pay 66 when the defendant should be able,” the plaintiff must prove the defendant’s ability, according to the terms of the condition.</p> <p>The plaintiff is not bound, however, to show an ability to pay without inconvenience. Per Parker C. J.</p>

<p>Debt on an administration bond. Plea, general performance. Replication, setting out that the administratrix fraudulently received a promissory note from T. Sheldon for 25 dollars, in payment of a debt due to the deceased, and a note against J. Palmer for 60 dollars, the goods &c. of the estate of the deceased, and did not include them in any inventory, nor account for them in the court of probate. Issue was taken on these allegations.</p> <p>At the trial, before Morton J., Sheldon testified, that the administratrix commenced a suit against him; that he told her he was not indebted to the estate, and she could not recover in the suit, but to prevent her from incurring a large bill of costs, and to save himself the trouble and expense of a trial, he would pay her 15 dollars towards the costs. He testified also, that the deceased having complained of sustaining a loss upon notes which the witness had assigned to him, the witness told him he would malee him a present; and further, that although he would not pay the estate any thing, he was willing to malee a present to the heirs, and that when he paid the 15 dollars to the administratrix, he also gave a note to the heirs for 25 dollars, which had been paid since the commencement of this suit.</p> <p>It further appeared in evidence, that the right of the deceased to redeem certain mortgaged estate was, in his lifetime, sold on execution to Palmer for 215 dollars, for which sum Palmer gave his note to the officer. Palmer paid the officer 170 dollars, which was more than sufficient to satisfy all the executions in his hands against the deceased, and this sum was indorsed upon the note. After the appointment of the administratrix, the officer sent her the note and a small sum of money. Within a year from the sale of the equity of redemption, the administratrix sold her right to redeem the same, and by agreement of Palmer, it was sold subject to the incumbrance of 170 dollars, instead of 215. Palmer’s note was given up to him, and the receipts of the sale were ac counted for in the settlement of the estate.</p> <p>The estate of the deceased was insolvent.</p> <p>The jury were instructed, that if the Sheldon note was given in discharge of any debt due to the estate, or any just claim in its favor, the receipt by the administratrix of a note payable to the heirs, was a fraud upon the creditors, and she was bound to account for the 25 dollars, in the same manner as if that sum had been paid to her:—that if she received the Palmer note before she returned the inventory, she was bound to include the note therein; but that if she did not receive it until afterwards, and fairly made the arrangement by which it was given up, so as not to diminish the receipts from the sale of her right of redemption, it was not a breach of the condition of her bond.</p> <p>The jury returned a verdict for the defendants ; and thereupon the plaintiff filed his exceptions to the instructions of the judge.</p>

<p>A grantor, after describing a tract of land conveyed by his deed, but without having mentioned a stream included within the bounds, proceeds thus:—And it is to be understood, and it is the intention of this deed, to convey to the grantee as much of the privilege of the water, as shall be sufficient for the use of a fulling-mill, whenever there is a sufficiency therefor.” It was held, that this clause was not repugnant to the preceding grant, but was a good reservation of the surplus water.</p>

It appeared from the answer of Leland, that before the service of the writ, he had signed as surety a promissory note for 2031 dollars, given by Strong to E. Kimball as the consideration for certain land, and had received for his own security from Strong sundry promissory notes given to G Cutler and L. Boltwood and by them indorsed, and also a promissory note given to Cutler and the wife of Strong, payable to bearer, out of the proceeds of which it was expected that the note…

<p>Assumpsit for money had and received. The action was commenced against the defendant and John Smith, but no service was made upon Smith. Upon the trial, which was upon the general issue, the plaintiff gave in evidence a deed poll, dated September 9th, 1822, by which Samuel Gray and Abel Chapin junior assigned to the defendant and Smith certain property therein described. In this deed, after enui merating certain debts due from the assignors, (including three promissory notes, produced at the trial, for 2473 dol lors 93 cents each, made by them to the plaintiff,) for most of which the defendant and Smith were responsible jointly, and certain other debts for which either the defendant or Smith was responsible, the assignors say, that they are holden to indemnify the defendant and Smith against any loss by reason of such debts, and in case they shall not save them harmless, they authorize them to dispose of the property, and to apply the proceeds to the payment of the debts of the first class fully and absolutely, and then to apply the residue, if any, of the proceeds to the payment of the debts of the second class, pari passu, and if there should be any surplus, the defendant and Smith are constituted trustees to apply the same in satisfaction of a note made by the assignors to George Smith. It appeared that the property assigned was insufficient to pay the debts of the first class, and that it was all applied to some of them in exclusion of the plaintiff’s demands. It further appeared, that the only liability of the defendant and Smith to the plaintiff, was upon a letter of credit or guaranty ; and that in a suit upon the guaranty, this Court decided that they were not holden for the notes in question. Morton J. directed a nonsuit, subject &c.</p>

Assumpsit for money had and received. Trial before Wilde J. On the 17th of July, 1816, Henry King made two notes for 2000 dollars each, which were indorsed by the plaintifi and the defendant, and were discounted at the Phoenix bank in Hartford.

<p>Under St. 1793, c. 75, which allows the defendant to file, as a set-off, an account for “ moneys paid,” he may file an account for moneys had and received by the plaintiff to his use.</p> <p>Where, upon a a account filed as a set-off, under St. 1793, c. 75, a balance appears to be due to the defendant, he may have judgment for the same, in like manner as if die account had been filed under St. 1784, c. 28.</p>

<p>Upon a complaint by a clerk of a company of militia against a private soldier; for neglect of duty, paroi evidence that the clerk had been duly sworn, is not admissible ; but the fact must be proved by a certificate made on the back of his warrant by the officer who administered the oath. Semble.</p> <p>The provision in St. 1821, c. 92, § 11, [see Revised Stat. c. 12, § 94,] requiring all excuses of non-commissioned officers and privates for neglect of military duty, to be made to the commanding officers of their respective companies within twenty days after such neglect, is not repugnant to the constitution or laws of the United States.</p>

<p>Under St, 1825, c, 171, the commissioners of highways have power to supervise and review a road laid out and partly worked under authority from the Court of Ses eions, and to finish or discontinue the road, as they may think expedient»</p>

<p>Where the holder of a note indorsed to him as security for a debt, having recovered a judgment against the promisor, and levied on the rents and profits of his land for a term of years, signed a writing, not under seal, promising to pay to the plaintiff all the rents which he should receive after his debt should be paid, or to allow the plaintiff the use and improvement of the land after such payment, it was held3 that this was a sufficient declaration of a trust;— and that the debt having been paid in the lifetime of the trustee, rents received by his heir under color of descent, might be recovered by the plaintiff in an action of money had and received.</p> <p>Held also, that the value of a specific chattel received in payment of rent, might be recovered in such action.</p> <p>Held also, that after verdict it was too late to object that no consideration for the trust moved from the plaintiff.</p>

<p>■ This was a bill in chancery, in which the complainant set forth, that in April 1821, he entered into partnership with the respondent, and signed an agreement to the following effect:— “I hereby agree to sell goods in Granby or some other place for L. H. for the space of four years, if he thinks best, for one half of the profits arising from sale of said goods. The s.aid L. H. on his part agrees to board and clothe me out °f the goods — that after this agreement was signed, the respondent took it into his possession ; that the complainant had never had in his possession any evidence of the partnership agreement, except a similar paper signed by the respondent ;■ that in pursuance of this agreement, the complainant commenced selling goods and transacting the other business of a country trader, on the 1st of June, 1821, and continued in the faithful conduct of that business for the space of four years; that during that period, the goods furnished by ■ the respondent, or for which he was accountable, amounted in value to 7168 dollars, and that the complainant paid to him 5077; that at the expiration of the four years, after the payment of the board and clothing of the complainant, and the discharge of every claim against the concern except the balance due to the respondent, there were goods on hand amounting at their retail price to 966 dollars, and there were due to the concern, on notes and on book, 4010 dollars; that by the direction of the defendant, the business was carried on in the name of the complainant alone; that on the 1st of June, 1825, the respondent, having possessed himself of the goods, bills, account books, notes and other papers belonging to the concern, refused to make any settlement with the complainant, unless he would allow certain unreasonable charges, and further refused to suffer the complainant to examine any of the goods, bills, account books, notes and other papers ; and that on the next day the respondent delivered to the complainant half of the goods on hand in part payment of what was due to him, but refused to produce the agreement before mentioned, or any of the books and papers, and to make a settlement of the partnership business ; — and the complainant prayed that the respondent might be compelled to come to a fair and just account with him, and to pay him whatever might be justly due on account of the premises.</p> <p>The defendant demurred generally, on the ground tho the case did not come within the chancery jurisdiction of the Court.</p> <p>The St. 1823, c. 140, provides (§ 1), that where any goods &c., writing or other personal property of any person shall be detained from him, so that the same cannot be come at to be replevied, this Court, on application by bill &c., may order the same to be delivered up, or compel such discoveties &c. as equity shall require; and (§ 2) that this Court may determine in equity all disputes between copartners, joint-tenants and tenants in common, in cases where there is no adequate remedy at law.</p>

<p>Within six years after the dissolution of a partnership one of the partners died, and within two years after the grant of letters of administration on his estate, but more than six years after the partnership was dissolved, his administrators brought a bill in equity against the other partners to compel them to account. It was held, that by virtue of &£. 1793, c. 75, § 3, the case was not within the statute of limitations.</p> <p>Where a partnership is dissolved without any adjustment of their concerns, this Court has jurisdiction in equity between the copartners, to compel them to account and make a settlement.</p> <p>Where A, a partner of B and C, having also entered into a distinct copartnership with D, who transacted the business of the same, gave a bond to B and C to share with them his proportion of the profits of this last copartnership, it was held, upon a bill in equity by C against A and B to compel a discovery and settlement of their partnership concerns, that D might be made a party to the suit.</p>

<p>This was assumpsit upon a promissory note for 200 dollars dated January 14, 1823, given by Norman Smith and Rodney Smith to the plaintiff. To the note was subjoined a condition, stating that it should be void if Norman should save the plaintiff harmless from all damage and expense, by reason oí a note signed by Norman and the plaintiff to one Ripley foi 200 dollars. The condition was not set forth in the declara tian. The action was tried before Putnam J., upon the general issue.</p> <p>The defendants proved that Norman paid to Ripley’s ex ecutor, the sum due on the note to Ripley, and that note was produced with an indorsement upon it, that it had been paid by the plaintiff’s signing a note with Norman, to Aaron Brooks junior, for 225 dollars. The plaintiff then proved by one Bryant, that this indorsement was in the handwriting of Norman ; and he offered to prove, that Norman had acknowledged that the money paid to the executor of Ripley was borrowed of Brooks for that purpose, upon the credit and responsibility of the plaintiff, as well as of Norman ; that the note g'ven to Brooks for the money so borrowed was paid bj the plaintiff; and that the circumstances of Norman were such, that he could not have borrowed the money on his own name and credit. This evidence was rejected, on the ground that the note to Brooks was not produced by the plaintiff. And it was stated by the counsel for the defendant, and not denied by the counsel on the other side, that the note was in the hands of Brooks at the last Court of Common Pleas held in the county in which the action was brought.</p> <p>The jury were instructed, that the plaintiff having proved the note declared on, the condition upon which it was given was a matter of defence, and that the burden was upon the defendants to prove that they had paid the note to Ripley and saved the plaintiff harmless ; that the testimony being that Norman paid the money, the burden shifted upon the plaintiff to prove that it was the money of the plaintiff and that Norman acted as his agent; that if Norman procured the money' of Brooks by becoming principal, with the plaintiff as surety, in the note given to Brooks, the money would be the property of Norman, with which he might discharge the note to Ripley ; that if it was borrowed, as well for the plaintiff as for Norman, upon their joint and several note, and Norman took the whole of it, the law would raise a promise on his part to pay one half of it to the plaintiff; and inasmuch as the money was delivered to Norman and by him paid over to Ripley’s executor, the jury might consider the payment as made by Norman’s money, by reason of his being accountable to the plaintiff for so much money had and received above his part borrowed upon the note to Brooks. The jury were also instructed, that if Norman was acting for the plaintiff and paying the note to Ripley with the plaintiff’s money, they might find a verdict for the plaintiff.</p> <p>The jury found a verdict for the defendants, and the plaintiff moved for a new trial.</p>

The plaintiff declares in covenant broken, for that Wilder, by deed, bargained and sold to him in fee, a parcel of land, and covenanted that he (Wilder) was seised in fee of the land, and that he had good right to convey the same, and that the same was free of all incumbrances ; whereas he was not seised in fee, nor had he good right to convey, “ nor could the plaintiff by force of said deed lawfully possess and enjoy the land free of all incumbrances according to the said…

<p>This was an action of debt on judgment. It was entered at the November term 1825 of the Court of Common Pleas for the county of Franklin, and was continued, pursuant to iSt- 1797, c. 50, § 3, on the plaintiff’s suggestion, that the defendant, at the time of the service of the writ, was absent from the commonwealth, and had not returned. At the next term, in April 1826, the defendant appeared, and on the first day of the term moved for leave to file a plea in abatement, in which he alleged that the writ, at the time when it was served, contained no count or declaration, nor any cause of action set forth in any manner. He also, at that term, filed a motion stating the same fact, and further, that after the service of the writ and before the entry of the action and filing of the writ in the clerk’s office, the plaintiff caused a declaration to be inserted in the writ, without leave of the court or consent of the defendant; and therefore praying the court to dismiss the action. At the subsequent term in August these motions were overruled, and the defendant then put m a plea to the action, reserving liberty &c. ; which being adjudged bad upon demurrer, he appealed to this Court, where he renewed his motions.</p> <p>The points raised in the argument will appear sufficiently in the opinion of the Court.</p>

<p>This was an appeal from a decree of the judge of probate, ordering the estate of Darius Ely, deceased, intestate, to be distributed in equal shares between the several appellants and appellees, pursuant to a resolve of the legislature passed on the 25th of February, 1825. Ely was the illegitimate son of Sybil Morgan, who died before him. He .was never married.</p> <p>Abner Morgan and Eunice Cooley, the appellants, were the brother and sister of Sybil, and they claimed each a moiety of the intestate’s estate as his next of kin and heirs at law.</p>

<p>A promise to pay a debt of a testator, by an executor who has given a bond to the judge of probate to pay the testator’s debts and legacies, is not within the statute of frauds, for the bond is an admission of assets.</p> <p>Giving up securities against the testator’s estate, is a «efficient consideration for such a promise.</p> <p>It seems that the creditor’s remedy on the bond is extinguished by such discharge of his demands.</p> <p>Where one of two executors, who had given such a bond, promised to pay the sum due to a creditor, and gave his negotiable note therefor, and the creditor then gave, up his securities against the testator’s estate, and afterwards the' note was avoided for usury, it was keld9 that the creditor might maintain an action on the paroi promise of the executor.</p>

Assumpsit. At the trial it appeared, that at a meeting of the inhabitants of West Boylston, on the 6th of March, 1820, it was voted “to put up the poor of the town separately to the lowest bidder, for one year, commencing on the 10th day of May then next, to be boarded, clothed and nursed, and to free the town from every expense on their account, except the doctor’s hill.” In pursuance of this vote the plaintiff bid oil a pauper, named Howe, at a dollar a week, and took him…

Trover for two horses. It was agreed that the action should be submitted to the determination of this Court upon the report of referees, who had been appointed in the Court of Common Pleas.

<p>This was an action of covenant broken. The trial was upon the issue of non est factum.</p> <p>The contract was an indenture of apprenticeship, made pursuant to St. 1793, c. 59, [see Revised Stat. c. 80, § 14, 15,] and the only question was, what damages the jury should assess upon the defendant for the breach of his covenant to maintain the apprentice, who had become ill and disabled in-his limbs. The apprentice will become of age on the 15th of July, 1832. The defendant maintained him from 1817, when the indenture was made, until the autumn of 1822. The writ was dated the 15th of August, 1823. The plaintiffs claimed damages up to the end of the apprenticeship in 1832, and if they were entitled to recover to that extent, judgment was to be rendered for 400 dollars ; but if only to the time of the purchase of the writ, for 260 dollars.</p>

<p>To take a demand out of the statute of limitations, direct and positive proof of an acknowledgment or new promise in any set form of words, is not required; but they may be inferred from facts, without any words,</p> <p>A mere indorsement made on a note by the plaintiff himself, without the knowledge of the defendant or proof of payment of the sum indorsed, will not take the demand out of the statute.</p> <p>A general acknowledgment of being indebted to the plaintiff is sufficient, primé, fade, to take the demand in suit out of the statute; and the onus lies on the defendant to prove that he had reference to a different demand.</p> <p>An acknowledgment made to a stranger, in the absence of the plaintiff, will take a demand out of the statute.</p>

<p>This was assumpsit upon a quantum meruit for the labor of the plaintiff’s son, a minor; with a count for money had and received. At the trial, before Putnam J., the plaintiff offered paroi evidence to prove his case, which was objected to by the defendant on the ground that there was a contract in writing under seal, upon which the action should have been brought. This contract was exhibited and proved by the defendant. It stated, that the plaintiff’s son should labor for the defendant for the term of nine months, and that the defendant should pay the plaintiff therefor by delivering him a pair of stags and a hog, which were to go immediately into his possession, but remain the property of the defendant till the expiration of the term ; and if the son should perform the whole labor, those articles were to be the property of the plaintiff; but otherwise of the defendant. The judge overruled the objection, and admitted the testimony.</p> <p>It was proved, that the son went into the defendant’s service, and continued in it about six months, and then left it; that the stags and hog were delivered to the plaintiff according to the agreement; that the plaintiff had sold the stags to one Livermore, and he had sold them to one Clark, previously to the boy’s leaving ; that immediately after the boy left, the defendant demanded the stags of Clark, the plaintiff and his son having gone to Ohio. Clark refusing to give them up, the defendant showed him the contract, stating that he meant to be bound by it, and that others should be also, and brought an action against him.</p> <p>Livermore testified, that after the service of the writ upon Clark, he called on the defendant, examined the contract, took counsel upon the subject, and being satisfied that the defendant would hold the stags, settled with him and paid him 55 dollars and the costs ; and that the defendant stated to him, before and at the time of the settlement, that he meant to hold to, and be bound by the contract.</p> <p>A question arising whether the boy left the defendant’s service voluntarily, or was sent away by the defendant, the jury were instructed, if they believed the boy was sent away, to find a verdict for the plaintiff; which they did.-</p> <p>If the action ought to have been brought on the contract, or if the plaintiff ought not to have been permitted to introduce paroi evidence, or if upon the whole evidence the plaintiff was not entitled to recover, the verdict was to be set aside and the plaintiff to be nonsuit; otherwise judgment was to be rendered on the verdict.</p> <p>Lee now insisted on the objection, that as there was a written contract under seal, assumpsit for work and labor could not be sustained. If the contract was broken, the action should have been upon the contract for the breach. If it was fulfilled by both parties, the chattels were the plaintiff’s, and if the defendant had taken them from him, the action mus have been trover &c. for that injury. So, if we suppose that in consequence of the boy’s being turned away wrongfully, the chattels became the plaintiff’s, and that he had sold them, a similar action would lie against the defendant for taking them, but it must be brought by the vendee and not by the plaintiff.</p> <p>The count for money had and received cannot be sup ported ; for if the defendant is liable in that form of action to any one, it is to Livermore, by whom the money was paid to him. Livermore cannot be considered- as the agent of the plaintiff; but even if he could, the money cannot be recovered back, for it was paid voluntarily, with a full knowledge of the fact, that the chattels were to remain the defendant’s until the service was performed. The plaintiff had broken the contract previously to the boy’s leaving the defendant, by selling the cattle. 2 Com. Contr. 41; Bilbie v. Lumley, 2 East, 469, and 471, note; Cartwright v. Rowley, 2 Esp. R. 723; Knibbs v. Hall, 1 Esp. R. 84.</p>

<p>This was an action on St. 1822, c. 104. against the defendant as collector of taxes in Milford for the year 1824, for not returning to the selectmen a list of persons of whom he had received payment of taxes. Trial was had upon the general issue.</p> <p>By the second section it is enacted, that collectors of state or county taxes shall, annually, fifteen days before the first Monday in March, make out and deliver to the selectmen of the town in which they reside, a true and accurate list of all persons from whom they shall within the year then next preceding, have received payment of a state or county tax, specifying the time of payment, or shall exhibit and deliver to the selectmen the original account by them kept of such payment.</p> <p>It appeared that the selectmen of Milford met on the 7th of February, 1825, and that the defendant then put his tax lists into their hands, to enable them to ascertain whether persons applying to have their names put upon the list of voters had paid their taxes, and that after the selectmen had examined the tax lists sufficiently, the defendant took them again into his own possession ; and further, that the tax lists were never withheld from the selectmen when they asked for them.</p>

<p>Where a turnpike corporation had ceased for several years to demand toll, and a town way was in due form of law laid out over the turnpike road and accepted by the town, it was held that the town was indictable for not keeping the way in repair.</p>

<p>This was a scire facias against the defendant as the bail In a suit of the plaintiff against one Brazer. Judgment was rendered against Brazer on the third Monday of June, 1825, and execution was issued on the 30th of that month, returnable on the 29th of August following, and delivered to a deputy sheriff of Worcester.</p> <p>The defendant pleaded that Brazer died before the execution was in fact returned. The replication denied that fact, and issue was joined on it to the country.</p> <p>It appeared that Brazer died on the 18th of September, and that the execution was returned into the clerk’s office soon after the 1st of November, and after it was reported in Worcester that Brazer had deceased. The officer’s return bore date of the return day.</p> <p>The plaintiff objected to the admission of paroi evidence to prove the time when the execution was in fact returned. If upon the whole matter the Court should think the plaintiff entitled to recover, the defendant was to be defaulted ; other wise the plaintiff was to become nonsuit.</p>

This was assumpsit upon a promissory note and an account annexed. The writ bore date of August 10th, 1825, and was served on the 15th, it being returnable to the Court of Common Pleas to be held at Worcester on the 29th.

<p>One who has served seven years in a volunteer company of militia, is ipjo facto discharged, and, unless he reénlists, is liable to be enrolled in a standing company.2</p>

The petitioner was prosecuted before a justice of the peace, under St. 1820, c. 65, for not turning his wagon, with which he was travelling on the highway in Rutland, to the right of the centre of the travelled part of the road, by means of which neglect the prosecutor’s chaise, in meeting and endeavouring to pass, was injured by the wagon.

<p>In trespass quare clausum fregit the defendant may give in evidence under the geneial issue, that he is tenant in common with the plaintiff of the locus in quo; or that lie entered by license of a person who is tenant in common with the plaintiff.</p>

<p>This was a petition for a new trial of two issues joined in the Supreme Court of Probate and tried at April term 1826, before Putnam J., one upon the sanity of a testator, the other upon fraud in procuring the will to be made. The will was found by the jury to have been duly executed. The decree of the judge of probate was affirmed, and administration was granted to the executor before the petition for a new trial was filed.</p>

<p>Debt upon a judgment of the Court of Sessions.</p> <p>The parties agreed upon the following statement of facts.</p> <p>The turnpike road was laid out by a committee duly appointed, and a return of the location, with an estimation of damages, was made at the Court of Sessions in March 1823, and accepted, and the corporation was ordered to pay the damages so assessed. The committee assessed damages to the plaintiff’s testator in the sum of 203 dollars, for injury done to his land by the location, which sum was tendered by the corporation to the testator before the working of the road, but was not received by him. In September 1823, the testator petitioned the Court of Sessions for a jury to assess his damages, and such proceedings were had thereon, that a verdict was returned to that court in March 1824. At a subsequent term in March 1825, those proceedings were vacated and the verdict set aside for irregularity, leaving the petition pending ; after which the respondents appeared no further in the suit. Before the next term the testator died ; and the court adjudged that the petition was thereby abated. In November 1825, the plaintiff demanded of the treasurer of the corporation, the damages assessed by the committee, and afterwards brought this action upon the order above mentioned, requiring the corporation to pay the damages so assesed.</p>

This was a writ of entry, which came before the Court upon a case stated. On the 4th of April, 1816, Christopher Nason, being seised in fee of the demanded premises, mortgaged the same to Daniel Day, to secure the payment of five negotiable promissory notes made at the same time by Nason to Day, payable in five successive years.

Debt on a bond dated the 1st of April, 1823, requiring that Brown should perform “ the conditions” contained in an indenture of lease, made on the' same day between him and the plaintiff; the declaration setting forth a covenant in the indenture to pay the plaintiff 240 dollars at the end of one year, and alleging a breach of that covenant.

<p>This was a bill of revivor exhibited in the Court of Common Pleas at March term 1825, by the heirs at law of John Putnam, setting forth that at September term 1823 of that court, John Putnam brought his bill in equity to redeem certain real estate mortgaged by him to the defendant, and that at March term 1825 the suit abated by his death, and the right of redemption became vested in his heirs ; which right could not be enforced by a new complaint. To this bill the defendant demurred.</p>

<p>This was trespass quare clausum fregit. The trial was, before Putnam J.3 upon the general issue. The defence was, that the locus in quo was the soil and freehold of the defendant. The plaintiff claimed under a deed from James Conant, of April 2, 1824. The defendant claimed by virtue of an attachment made on the 30th of March, 1824, and a levy in 1825, in a suit against the same Conant. It appeared that the defendant being the assignee of a mortgage of the land, and the plaintiff being desirous of purchasing the land, the defendant agreed to sell his interest to the plaintiff for 175 dollars, and upon receiving that sum from the plaintiff’s agent on the 29th of March, 1824, he conveyed his right to Conant for the purpose of enabling Conant to convey the whole estate to the plaintiff on the 2d of April; but in the mean time he made his attachment as before stated. The trespass complained of consisted in the subsequent levy. There was no evidence of any actual injury done to the land.</p> <p>The counsel for the defendant contended, that the jury could not legally infer from these facts that the defendant acted fraudulently in making his attachment; but the jury were instructed, that if the defendant had agreed to convey his interest to the plaintiff by this form of conveyancing, he had no right to interfere in his own behalf to prevent it, and that such conduct was fraudulent and rendered his attachment of no avail against the plaintiff.</p> <p>The counsel contended also, that the jury should give nominal damages, if any ; but they were instructed, that they could find a verdict for the plaintiff only on the ground that the defendant had conducted himself fraudulently, and that they might give such damages as they were satisfied the plaintiff had sustained in consequence of the wrongful act of the defendant, not including in their estimate any thing paid for counsel fees, or services which are compensated in the bill of costs.</p> <p>The jury returned a verdict for the plaintiff for 45 dollars.</p> <p>If, in the opinion of the Court, the plaintiff was not entitled to recover, he was to be nonsuited; if he was entitled to recover, but only nominal damages, he was to release the excess and have a judgment on the verdict for nominal damages.</p>

<p>The owner of the soil of an unnavigable stream has a right, in exclusion of the public, to take fish in the stream.</p> <p>A custom to take fish in alieno solo in an unnavigable river, is not a good custom; but if it were, it could not be given in evidence under the general issue, in defence to an action of trespass; and even if the action is brought before a justice of the peace, such custom ought to be pleaded specially, for it affects the title to land. Such a right, if it can be sustained at- all, must be claimed by prescribing in a qut estate.</p>

<p>A surveyor of highways has no authority to repair a way at his own expense and then to call upon the town for an indemnity.</p> <p>Thus, where a surveyor, before his limits were assigned and without consulting the other surveyors, repaired at his own expense a way, which upon the assignment fell without his limits, it was held that he was without remedy.</p>

This was assumpsit upon a promissory note made by the defendant to C. Wheeler, and by him indorsed to the plaintiffs.

<p>Where the original proprietors of common land, after having laid out a parcel t© Co W., voted that the location should be void9 and C. W. or his heirs acquiesced in the avoidance, having never entered, and the proprietors afterwards laid out the same parcel to the plaintiff, it was kelds that a stranger could not contest the title of the plaintiff on the ground that it was not competent to the proprietors to annul their location to C. W.</p> <p>A paper in the handwriting of a deceased heir of C» W., who was agent of the other lieirs, found among the papers of such heir and purporting to be a copy of a letter from him to the proprietors, is not admissible as evidence of such acquiescence, without previous proof that an original was sent to, or received by the proprietary,, Semble,</p> <p>It was keld9 that extracts from the records of the proprietors were not improperly read by one party to the jury, the records themselves being in court and open to the use of the adverse party.</p> <p>The opinion of a practical surveyor was admitted as evidence, on a question whether certain piles of stones and marks on trees were monuments of boundaries.</p> <p>Where in trespass the defendant pleads soil and freehold in himself, without any other plea, and issue is joined thereon, the right of opening and closing the argu> ment before the jury belongs to the defendant.</p>

<p>This was a writ of entry, in which the demandant counted on his own seisin within thirty years. A trial was had before Putnam J. upon the general issue.</p> <p>The demandant offered in evidence a deed of a committee of the General Court, dated the 17th of December, 1744, to twenty purchasers, of whom Ehenezer Robins was one, of a large tract of land in what is now called Oxford South Gore. This was objected to on the part of the tenant, because the record of the authority to the committee to make the deed was not produced ; but the objection was overruled.</p> <p>The book of the proprietors (the grantees) was likewise offered by the demandant, as containing the records of the j roprietors. It had been formerly in the possession of a witness’s grandfather, whose executor had it thirty years, and from the executor it came into the hands of the witness. The hook, though objected to by the tenant, was admitted.</p> <p>Robins made a deed of his right to S. Dwight in 1745, and a location to Dwight by the proprietors in 1760 was shown by the book of records above mentioned. Dwight died about the year 1775, leaving six daughters his heirs The demandant claimed under deeds from three of them, made in 1808.</p> <p>Isaac King .testified, that in June 1807, he was requested by Elizabeth Waters and others, heirs of Dwight, “ to look up the land for them,” and that in the fall of 1807 he went uPon the land to survey and take possession of it, and that he took with him a surveyor and made a survey. A small portion of the land was cleared and fenced before King made his entry. It was contended on the part of the tenant, that this testimony did not prove an entry by the heirs of Dwight. But the jury were instructed, that if the witness did these acts xvith an intent to- make a claim to the land and to take the legal measures for its recovery, at the request and for the benefit of the heirs, it was a sufficient entry , and that no particular ceremony or form of words was necessary in making an entry into lands.</p> <p>The tenant defended on the ground, that he had a title from persons who entered as disseisors, and had held the land for forty years before this action was brought; and if there was (as he contended) an actual ouster of the heirs when they made their deeds, nothing passed to the demandant.</p> <p>The verdict was for the demandant.</p>

<p>This was an action to recover the penalty of 50 dollars for each of seven violations of St. 1818, c. 109, § 1, which provides, that if any person shall “ place or set any seine or net, or set up, erect, or place any obstruction or incumbrance whatsoever (mill dams excepted) in or across Charles river, whereby the free passing of the fish' up and down said river shall be straitened, obstructed, or stopped,” he shall forfeit, &c.</p> <p>It was proved that the defendant’s seine was put into the river in the following manner. With a long rope at one end of it a half turn was taken round a stake on the Brighton shore, the fishermen holding on by the rope and letting it pass through their hands till it came to the end. The other end of the seine was attached to a jack staff, which lay across a boat and was prevented from slipping over the stern by the boards of the quarter deck rising above the sides of the boat. The painter was made fast to a stake on the Watertown side, and the bow of the boat was hauled close to that shore, which is very bold. The seine moved up and down the river as the current swayed it, or as the rope on the Brighton side was drawn or slackened round the stake. The fishing in this manner continued sometimes ten minutes, once about forty, and once about an hour.</p> <p>The defendant contended, that this was not placing or setting a seine, but drawing a seine ; and an experienced fisherman testified, that a set seine is one which is fixed for the time being, so that it cannot move at the ends where it is fastened ; but that where the end moves in the manner above described, the seine is considered among fishermen as a drawing seine.</p> <p>The defendant also contended, that this seine was not drawn in and across the river, as alleged in the declaration, because it extended only to the boat, and there was a space of from three to twelve feet between the end of the seine, where the leads fell upon the bottom, and the shore on the Watertown side, where the water was two or three feet deep.</p> <p>The jury were instructed, that the seine was not set, within the meaning of the statute, unless made fast for some time at each end, and that it was not extended across the river, as there was a space between one end, where it was fastened to the boat, and the shore ; and a verdict was found for the defendant.</p>

<p>This was an appeal claimed on the 13th of September, from a decree of the judge of prohate. Hilliard inquired whether it ought to be entered at this term, which began on the 17th of October, the St. 1817, c. 190, § 7, requiring such an appeal to be C£ proceeded upon at the next term of the Supreme Judicial Court, which shall be holden next after the expiration of thirty-four days after such appeal shall be made.” Reckoning the day on which the appeal was made as one of the thirty-four, the appeal should be entered at this term.</p>

This was an action of trespass de bonis asportatis, commenced before a justice of the peace.

Assumpsit for expenses incurred in the support of Jonathan Taylor, his wife, and children. The case came before the Court upon exceptions filed by the plaintiffs in the Court of Common Pleas. Jonathan Taylor had no settlement within the common* wealth in his own right. He was the son of John Taylor, whose wife, the mother of Jonathan, had her settlement in Burlington.

Indictment on St. 1815, c. 136, alleging that the defendant did knowingly and designedly, with the intent to cheat and defraud one Edward Hammond, get into his possession from Hammond, fifteen dollars of the property of Hammond, by the following false pretences and tokens, viz. — 1. that his name was H. Cleutt; 2. that he was an agent for the managers of the Maryland Grand State Lottery; 3. that the quarters of tickets which the defendant offered to Hammond, signed H.…

<p>The plaintiff and defendant enter into an indenture, in which, after a recital that they are 66 in possession and improvement and are principal owners of a certain water privilege ” in Concord,66 with the buildings thereon, machinery, fixtures, &c.,” the plaintiff agrees to convey, and the defendant to receive and pay for,66 all the plaintiff’s right, title, interest, and enjoyments of the above described premises, consisting of all his interest in the water privilege, his right and interest to the fulling-mill, work and dress-shop, and all the machinery, fixtures, and appurtenances to the same belonging; also the saw-mill, with every privilege and advantage to the same belonging, with about two acres of land adjoining and connected with said saw-mill, together with all the land under and about said work and dress-shop and fulling-mill which may belong to him,” at such prices as shall be awarded by three men, to be chosen &c., and for the fulfilment of the agreement they “ bind themselves, each to the other, under the penalty of 1000 dollars,” &c.</p> <p>It was held, that after a price had been fixed by referees chosen pursuant to the indenture, it was too late for the defendant to object, that, by the statute of frauds, the indenture was invalid, because the referees and the price were not ascertained by the indenture itself: —</p> <p>That the description of the estate to be appraised was sufficiently certain : —</p> <p>That the award was not invalid, although the referees did not appraise each article separately, and although some articles of inconsiderable value were included under an <c &c. —</p> <p>That as the parties showed the referees the articles to be appraised, if some things appraised did not come within the words of the indenture, the parties must be considered as agreeing that such things were appurtenant to the estate and to be appraised, and if other things were omitted to be shown, the parties must be considered as having waived the appraisement of them; —</p> <p>That the referees acted correctly in appraising the property shown to them, without examining into the plaintiff’s title, no question being made before them as to the extent of his right: —</p> <p>That the referees, in asking each party by himself, at what sum he valued the water privilege, and then comparing the answers with their own ideas of the value, and finally taking the mean sum between those named by the parties, had not misconducted. themselves ; aliter, if they had taken such sum without any exercise of their judgment as to its being the true value : —</p> <p>That a tender by the plaintiff, of a deed purporting to convey the estate by metes and bounds, but not containing the words in the agreement—"all his right, title, interest, and enjoyments ’’ — was sufficient: —</p> <p>That the plaintiff might rely on such tender, without pro'dacing the evidence of his title; the burden being on the defendant to show such a defect in the title as would justify him in refusing to accept the deed : —</p> <p>That the defendant was not justified in such a refusal, in consequence of the estate’s being incumbered, through his own collusion, by an attachment made subsequently to the publication of the award : —</p> <p>That the plaintiff, being under the necessity of calling the subscribing witness to prove the execution of the agreement, was not precluded from contradicting hie testimony given upon cross-examination in relation to other facts : —</p> <p>That the sum of 1000 dollars, mentioned in the agreement, was a penalty, and not liquidated damages ; —</p> <p>And that the plaintiff, having offered to perform all his part of the agreement, was entitled, in covenant broken, to recover the appraised value of the property.</p>

<p>This was a real action brought to recover an undivided moiety of certain land in Bedford. It came before the Court upon a case stated.</p> <p>On the 27th of December, 1798, John Moore, being seised in fee of the demanded premises, made his last will, containing the following devise : — “ I give to my daughter Lydia Bowers the improvement of my homestead farm, on condition that she pay to her sister Elizabeth Hartwell three hundred pounds in the following manner, viz. one hundred pounds in one year after my decease, one hundred more with interest in two years, and the other hundred in three years with in terest; no interest to be paid for the first year ; — the saiu premises to be equally divided between all her legal heirs at her decease.”</p> <p>The testator died in 1807, and the will was proved in October of that year. At the time of making the will, Lydia Bowers had one child, viz. Bradley V. Bowers. At the decease of the testator, she and her son Bradley V. were living, and also a daughter, named Lydia M. Bowers, born after the date of the will. On the 12th of June, 1809, the executors, m order to pay divers debts of the testator and also the legacy to Elizabeth Hartwell, made sale, pursuant to a license of court, of so much of the homestead as raised the sum of 1101 dollars, and they paid the legacy on the same day. On the 4th of June, 1818, Lydia, Bradley V., and Lydia M. Bowers executed a deed of mortgage of a part of the premises devised as above mentioned, being the same which is described in the demandant’s writ, to Porter the tenant, to secure the payment of a note for 400 dollars, of even date, signed by Lydia, Bradley V., and Lydia M. In May 1820, Lydia M. died, under age, having never been married. On the 8th of March, 1821, Lydia and Bradley V. executed another deed of mortgage of the same land, to Porter, to secure the payment of a note signed by Lydia and Bradley V. for the further sum of 400 dollars. In February 1822, Bradley V. died, leaving two children, viz. John M. Bowers, the demand-ant, and Bradley Bowers, both of them born after the decease of the testator. Porter, on the 22d of February, 1822, by consent of Lydia Bowers, she being the tenant in possession, took quiet and peaceable possession of the premises in question, for the purpose of foreclosing the equity of redemption. Lydia Bowers died on the 3d of October, 1822, leaving her two grandsons, John M. and Bradley Bowers, her only heirs at law.</p> <p>In the will, which was made a part of the case, the testator, after saying, “ And touching such estate as it hath pleased God to bless me with, I give, devise, and dispose of in manner following,” makes, among others, these provisions: — “ Imprimis, I give to my daughter Elizabeth Hartwell the improvement of my pasture &c. I also give her the interest of one thousand dollars. The lands and money to be improved by her during her natural life, and at her decease to be equally divided among her legal heirs. Item, I give to my daughter Mary Fitch, under the restrictions herein after mentioned, the income or net proceeds of the after described premises, during her natural life, viz. my farm, &c. All the before described premises shall be equally divided between her legal heirs at her decease. Item, I give to my daughter Lydia Bowers, &c. [as before recited.] Item, 1 give to my daughters, Mary Fitch and Lydia Bowers, my pew in Bedford meetinghouse. Item, I give to my grandson J. M. Hartwell, and to his heirs and assigns for ever, a certain lot of land, &c. Item, I give to my granddaughter Polly Fitch, and to her heirs and assigns for ever, a certain tract or parcel of land, &c. Item, I constitute &c. John Hartwell &c., my executors &c., and I do enjoin it on them to pay all my just debts, and all my legacies but what I have herein before made provision for, and also my funeral charges, out of my estate. And I do commit the disposal of the income or the net proceeds of all those lands and buildings which I herein before proposed for the support of my daughter Mary Fitch and her family, entirely to my said executors, to be dealt out to her &c., and if, in case of sickness or other misfortune, the yearly income or net proceeds of the premises shall prove insufficient to support her and her family, then and in that case I do hereby empower my said executors to sell such part or parts of said premises &c., and at my said daughter’s decease, whatsoever remains óf the premises &c. shall be equally divided between her legal heirs.”</p> <p>The demandant was to be nonsuit or the tenant defaulted, according as the opinion of the Court should be upon the foregoing statement.</p> <p>The cause was argued, first at October term 1825, and afterwards in writing, by Hoar, for the demandant, and Fay and Fiske, for the tenant.</p>

<p>This was an action of assumpsit on promises made to the plaintiff’s intestate.</p> <p>The defendant pleads, that the plaintiff ought not to be received to allege that the defendant made the promises, or has not fulfilled them, because the plaintiff, as administrator, before the commencement of the suit, represented to the judge of probate that the estate of the intestate was insolvent, and thereupon a commission of insolvency was issued, and the defendant presented to the commissioners his demands against the estate, and the administrator presented his claims against the defendant, founded on the identical promises set forth in his declaration, to be allowed to set off against any claim which should be proved by the defendant, and the commissioners, upon an examination of all the mutual claims, found a balance of 201 dollars due to the defendant, and made their report accordingly ; which report was accepted by the ■judge ; and this decree remains unreversed and in full force.</p> <p>The plaintiff replies, that the defendant, being dissatisfied with the rejection of part of his claim by the commissioners, gave notice, within twenty days after the acceptance of the report, to the judge of probate, that he should nrosecute an action at common law for the recovery of his claim ; that he did commence such an action, and afterwards became nonsuit, whereupon judgment was rendered in favor of the present plaintiff for his costs of the suit; and he avers that the commission of insolvency and the report of the commissioners are still pending before the judge of probate, and that no decree of distribution has ever been made.</p> <p>To this replication the defendant demurs generally.</p>

<p>Trespass for breaking and entering the plaintiff’s dwelling-house, putting out his household furniture, and forcibly turning out the plaintiff, his wife, and children. Pleas, the general issue, and soil and freehold in Luther Davis.</p> <p>Trial was had before Morton J. The plaintiff claims to be in the lawful possession of the locus in quo, as tenant at will to Deidamia Rogers, to whom Davis had mortgaged the premises, to secure the payment of 600 dollars in three years from the 13th of February, 1823. D. Rogers testified, that on the Monday before the entry by the defendants, which was in October 1824, she went into the house and took possession of it under the mortgage ; that she then agreed with the plaintiff that he should continue in possession for her, but did not agree upon the time or terms. She took possession in presence of several witnesses, but did not previously give notice to the mortgager ; he was, however, informed of it by the plaintiff, and by others, before the alleged trespass was committed.</p> <p>The jury were instructed, that if the facts above stated were true, the mortgagee entered legally, and thereby became possessed of the premises, and had a right to let them to the plaintiff. A verdict was found for the plaintiff for 500 dollars damages. The defendant excepted to the fo egoing instruction, and also moved for a new trial because the damages were excessive. The facts in regard to this last point will appear sufficiently in the opinion delivered by Putnam J.</p>

Trespass for breaking and entering the plaintiff’s close in Weston. The defendant pleads, first, the general issue, which is joined j and, secondly, thát the soil and freehold were in Abigail Hagar, and that he entered as her servant and by her command. The plaintiff traverses the allegation in the second plea, of soil and freehold in A. Hagar, and issue is joined thereon.

<p>A meetinghouse for public worship built by a town before it is divided into parishes, becomes, upon such division, the exclusive property of the first parish; and the use of it for many years before the division, for town meetings for municipal purposes, gives the town no easement in it, for such use is presumed to have been with the consent of the town in its parochial character, and an adverse right of an easement cannot grow out of a mere permissive enjoyment.</p>

<p>Assumpsit to recover 60 dollars alleged to have been received by the defendants to the use of the plaintiffs.</p> <p>The cause was tried in the Court of Common Pleas, before Ward C. J.</p> <p>The plaintiffs proved, that they purchased rum, from time to time, of the defendants, who were distillers, and that it was delivered to them in two certain casks, which had been gouged at the distillery of the defendants. One of the casks was gouged at 121 gallons, but contained only 1143,-, the other was gouged at 112 gallons, but contained only 106. The plaintiffs were charged for the rum according to the gouge of the casks. They made partial payments from time to time, and some time before they discontinued purchasing rum of the defendants, they settled an account with them, and gave a negotiable note for the balance then due. After they had ceased to purchase rum of the defendants, they settled another account with them, and gave a negotiable note for the balance which had arisen since the former settlement. These notes were afterwards put m suit by the defendants, and a judgment was' entered against the plaintiffs on their default, for the whole amount of the notes ; which judgment • had been paid by the plaintiffs previously to the commencement of this action.</p> <p>It appeared that the plaintiffs, at the time when the action upon the notes was instituted, had come to the knowledge of the fact of their having been overcharged to the amount ol the difference between the actual and the gouged capacity of the casks ; but there was no evidence that they knew of that fact at the time when the settlements nere made .and the notes given.</p> <p>Upon this evidence, it was contended for the defendants, that if the plaintiffs had paid for rum which had not been delivered to them, they had paid with a full knowledge of the fact, and could not maintain an action to recover the money back. But the judge instructed the jury, that if the plaintiffs had no knowledge, when they settled the accounts and gave the notes, that they were charged in the accounts settled, for rum which they had never received, the giving of the negotiable notes must be‘considered as payment of the accounts, and that whatever sum of money the plaintiffs had paid for rum which the defendants had never delivered to them, must be considered as money paid by mistake and without consideration, and in equity and good conscience the plaintiffs had a right to recover it back in this action.</p> <p>The jury found a verdict for the plaintiffs, and thereupon the defendants excepted to this direction, and on account of it filed their motion for a new trial.</p>

This was a bill in equity against Alexander Black junior and Thomas Black, alleging that T. Black, being indebted ¡o W. and S. Fessenden, conveyed to them by deed, on the 11th of March, 1818, for the consideration of 4100 dollars, certain land, with a secret understanding and trust, that they would reconvey the same to T. Black or his order or assigns, on the payment of that consideration and interest from the date of the deed ; that on the 15th of December, 1818, T„ Black…

This was an action of trespass for breaking the plaintiff’s, close and carrying away fifty lengths of his fence. The declaration contained only one count. The defendants pleaded severally the general issue, which was joined. A trial was had before Williams J. in the Court of Common Pleas.

This was a writ of right. The tenant “ comes and defends the right and seisin of the demandants of the demanded premises &c. as of fee and right, and says he hath nothing &c., and disclaims to have any thing, in the demanded premises &c., except only the right and privilege to himself, his heirs and assigns, of a lane upon the demanded premises &c., the full length and breadth of the demanded premises, to a ditch at the northerly end thereof, so as to include the water of a…

<p>Adverse possession of land for twenty years does not of itself raise a presumption of a grant to the tenant; but where, in addition, the demandant occupied land adjoining, and took a deed of mortgage of the land in question referring for a description to a deed in which it was described as having been bought of the demandant, it was held) that the jury were warranted in making such a presumption</p>

<p>Where upon a petition for partition of a parcel of land, it appears that the petitioner and respondent are tenants in common of part only of the land, and not interested in the residue, and partition is accordingly made of such part only, the respondent is entitled to costs»</p>

<p>Trover for a mare. At the trial in the Court of Common Pleas, before Williams J., the plaintiff proved that a mare which he owned, strayed from his enclosure in Middleborough, on the 10th of April, 1825 ; and it was in evidence, that the defendant took up a mare in Concord on the 15th, which was testified to be the same that had strayed from the plaintiff. It also appeared, that the defendant caused the mare taken up by him to be entered, advertised and appraised in manner as the law directs, but that he did not sell her at the expiration of two months after the appraisal, one Hildreth having before that time made claim to her and requested the defendant to keep her, saying, that he would furnish the defendant with the evidence of his ownership.</p> <p>The judge, upon this evidence, was of opinion that the defendant, in not selling the mare at the expiration of the two months, she being appraised at less than twenty dollars, had failed to comply with the provisions of St. 1815, c. 1, and by such failure had rendered the original taking tortious ; and he directed the jury, that if they were satisfied that the plaintiff had proved his property in the mare taken up by the defendant, they should find a verdict in his favor for the value of the mare at the time when she came into the defendant’s possession. The jury having returned a verdict for the plaintiff, the defendant filed his exceptions.</p>

<p>Cndictment on St* 1798, c. 20, alleges that the defendant, st being an innholder duly licensed,” permitted persons 66 to play at the game of cards in his said dwelling-house where he was then and there licensed as an innholder.” Held sufficient, this being equivalent to an allegation that he was in the actual employment of an innholder, and the words 66 the game of” being surplusage.</p>

<p>John Briggs, a private in a company of militia, having been fined by a justice of the peace for neglecting to appear at a meeting of the company on the 5th of October, 1824, filed a petition for a writ of certiorari, alleging, among other things, that the justice permitted Pauli, the complainant and .clerk of the company, to be examined to facts other than the notice to Briggs to appear at the meeting before mentioned ; whereupon a certiorari was awarded ; and upon the return of the writ it appeared, that Pauli had testified that the roll of the company was called on the 5th of October, and that Briggs was absent.</p>

<p>A mortgagee may attach and levy on the mortgaged land, for a debt not secured by the mortgage.</p> <p>Where one of two creditors of an insolvent debtor, knowing only that a deed was making to convey the debtor’s land to the other creditor, attached the land before the deed was recorded, though not until after it was executed and delivered, an extent in pursuance of the attachment prevailed against the deed.</p>

<p>This was an action of trespass for taking and carrying away divers cattle belonging to the plaintiff, an inhabitant of the town of Easton. The defendants justified, on the ground that the cattle were found going at large, without a keeper, in the town of Andover, and that Holt was, at the time of the taking, a field-driver of that town, and that he, with the other defendants as his servants, finding the cattle going at large, took and impounded the same, as they lawfully might do ; and that such further proceedings were had as the law requires. The plaintiff replied de injuria sua fyc. Trial was had before Wilde, J.</p> <p>Part of the evidence produced by the defendant, was a warrant of a justice of the peace to two persons, empowering them, “ upon oath, faithfully and impartially to appraise so many of the creatures belonging to J. G. &c. which have been taken up going at large on the highways, and are now impounded &c., as shall be sufficient to answer the damages and all charges.” On the warrant was a certificate, that the appraisers “ made oath that they would faithfully appraise the within-named creatures, according to their best skill and judgment.” The return was, — “ Pursuant to the within warrant, we have appraised the cattle within-mentioned at 48 dollars — one sparked cow &c. at 12 dollars, &c., the whole amount, 48 dollars.”</p> <p>To the evidence to prove the justification, the plaintiff objected: —</p> <p>1. That the town meeting at which Holt was chosen field-driver, and at which other votes were passed, was not legally notified, because it was not shown that the town had ever agreed upon any mode of notifying town meetings.</p> <p>2. That the application for the appraisement of the cattle was insufficient, because it was not made in writing and signed by Holt.</p> <p>3. That the oath administered to the appraisers was not conformable to the requisition of St. 1788, c. 65, § t.</p> <p>4. That the cattle of persons not inhabitants of Andover might go at large within that town, without any penalty being incurred.</p> <p>5. That the place where the cattle were found was on the Essex Turnpike road, which was not a public highway, within the meaning of the statute restraining cattle from going at large.</p> <p>6. That the cattle could not be legally impounded except in the town pound, and it appeared that they were impounded in a field belonging to Holt.</p> <p>7. That the proceedings were illegal, for that they ought to have been set out and returned at large on the warrant of appraisement.</p> <p>These objections were overruled, and reserved for the consideration of the whole Court.</p> <p>It appeared in evidence, that after paying the penalties and expenses, a small surplus remained of the appraised value of the cattle appraised. The plaintiff contended that the defendants’ proceedings were void, because this surplus was not tendered to him before the commencement of this action. There was evidence tending to prove, that before Holt had had time to obtain and make up a bill of the expenses, the plaintiff left Andover for the purpose of depriving him of an opportunity to make a tender, which he was about to do ; and the jury were instructed, that if the plaintiff did so withdraw himself, and for the express purpose of preventing the tender, it would excuse Holt from making a tender, if such a tender were necessary.</p> <p>It was also objected, that there had been no sufficient notice to the plaintiff, of the place and cause of impounding the cattle, and that no notice given before the impounding would be valid. But the jury were instructed, that if after the taking, and before the impounding of the cattle, the plaintiff was notified by the defendant of the fact and the cause of taking, and was, after the impounding, notified of the place where the cattle were impounded, this would be legal notice.</p> <p>The question, whether the cattle were found going at large without a keeper, was also referred to the jury.</p> <p>A verdict was returned for the defendants ; and the Court were to enter such judgment as law and justice might require.</p>

<p>This was a scire facias to obtain execution against the defendant, who had been summoned in a foreign attachment, on the 4th of May, 1824, as the supposed trustee of Andrew Hutchinson. . The defendant admitted, in his answer, that he had in his hands property which once belonged to Hutchinson, but he likewise disclosed an indenture of assignment, made on the 1st of May, 1824, by and between Hutchinson, of the one part, and Jabel Ingraham and Barney Merry, of the other part, by which Hutchinson conveyed to Ingraham and Merry, all his property, (except his household furniture and wearing apparel,) amounting to about 25,000 dollars, with a provision that the assignees should sell it, and with the proceeds should pay in full the holders of certain specified notes and drafts, amounting to about 14,000 dollars, on most of which one or the other of the assignees was liable as indorser, and should apply the surplus of the proceeds to the payment, in whole or in part, of the demands of all other creditors of Hutchinson who should, within the1 term of six months from the date of the assignment, release him from their several demands, such payment to be made in proportion to the several claims so discharged, and no creditor to be entitled to receive a dividend of the proceeds until he should have signed such discharge.</p>

<p>This was an action of trespass for entering the plaintiffs’ close and cutting down and carrying away divers trees, and destroying a foot bridge, the property of the plaintiff. The defendant pleaded the general issue.</p> <p>At the trial, the cutting of one tree and the destroying of the bridge were proved. The only question made regarded the title to the locus in quo.</p> <p>The plaintiffs introduced in evidence a deed to them from one Ebenezer BucHin including the locus in quo, which is an island in the river Pawtucket, opposite to the plaintiffs’ land on the east side of the river, and proved by several witnesses, that Bucklin, and those under whom he claimed, had frequently cut wood on the island for forty or fifty years, and also proved, that in a partition of land made in 1766, the island was set off to the heirs of Ebenezer Bucklin, father of Ebenezer Bucklin the grantor.</p> <p>On the part of the defendants it was proved, that they oi some of them, were owners of the lot of land on the west side of the river, opposite to the island, and that they had cut wood on the island whenever they pleased, and frequently, for nearly thirty years, and that no objection had been made by the Bucklins or any one else.</p> <p>No part of the island was cleared. It was admitted, that by the original grants under which the parties respectively claimed, the lots east and west of the river were hounded by the river. • It was proved that the eastern branch of the river was twice as large as the western. The bridge was on the side of the island nearest to the plaintiffs’ land.</p> <p>The defendants contended, that the eastern branch of the river was the principal branch, and so their right extended thereto ; or if not, that according to the general course o, the river, the island was nearer to their lot than to the plain* tiffs’, and therefore by law was appurtenant to their lot ; or, at least, that they were tenants in common with the plaintiffs.</p> <p>A verdict was taken for the defendants by consent; but if the Court should be of opinion, that on the foregoing evidence the plaintiffs were entitled to judgment, the verdict was to be set aside and a new trial granted.</p>

<p>A town sold to C a privilege of fishing in a river, with a condition that they would not sell any further privilege ; they did however afterwards sell another privilege to D, and thereupon C refused to accept and pay for the privilege first sold. Helds that the town could maintain no action against C for the purchase money, notwithstanding the sale to D was unauthorized by law and void, and notwithstanding G joined D in carrying on the fishery under the privilege sold to D.</p> <p>In an action by a town to recover the price of a right of fishing, sold by them under an authority derived from a statute, it is not necessary to set forth in the declaration their authority to make the sale.</p>

<p>On a writ of attachment the officer returned, that he had “ attached the homestead farm of the debtor, containing about 30 acres, more or less.9’ Held that this was a sufficient description of the farm, although in fact it contained about 160 acres, the statement of the number of acres being rejected as a mistake in the officer, or as repugnant to the more general description.</p> <p>Where an officer, having seized an equity of redemption upon two executions against the same debtor, sold it upon one only, and after satisfying that execution with part of the proceeds applied the balance to the other execution, the levies were held to be legal.</p> <p>Where a mortgager assigns his equity of redemption after it is attached, and the officer afterwards sells it upon the attaching creditor’s execution, which is satisfied by a part of the proceeds, and having no notice of the assignment, applies the surplus in satisfaction of another execution against the mortgager, he is not answerable to tlie assignee for such surplus</p>

<p>An action, in which one had made a report as auditor, was referred to him with • liberty to reconsider and revise any part of that report, upon evidence or arguments which might be offered by the defendant’s counsel. It was held, that under this rule, the referee was not precluded from hearing evidence on the part of the plaintiffs on the subject matter of the former inquiry, so far as was necessary to correct any mistake in the first report.</p> <p>Two persons, having been appointed guardians of a spendthrift, sold his real estate by virtue of a license granted by the Court of Common Pleas, and credited him in their guardianship accounts with the proceeds, which they applied to the payment of his debts, some of the debts being paid by one guardian and some by the other. The letters of guardianship were afterwards revoked, and the spendthrift and his heirs avoided the sales of the real estate, the license having been granted without any authority, and thereupon the guardians were compelled, upon their covenants, to refund the money paid by the purchasers. It was held, that the guardians had a right of action against the spendthrift’s administratrix for the amount refunded, so much having been originally paid by them for the spendthrift upon a consideration which had failed; that this right did not accrue until the sales were avoided and the money refunded, so that the statute of limitations began to run from that, time, and not from the time of settling their guardianship accounts; and that they had properly joined in an action to enforce such right.</p> <p>The receipts of persons who are not within the commonwealth, are admissible, on proof of their handwriting, as evidence of charges in a guardianship account, of payments made to such persons.</p>

<p>The shipping articles for a fishing voyage, which by the statute of the United States are to be indorsed or countersigned by the owners, do not determine conclusively who are the owners, nor with whom the contract is made ; but a seaman may have his remedy for Ms share of the fish taken, against all the owners, and he may show those whom he sues, to be such, by other evidence than the papers of the vessel.</p> <p>So in an acia in of money had and received, brought by a seaman against all the owners, to recover his share of the proceeds of the fish, it was held that he might prove by the license and by paroi evidence, that some of the defendants who had not indorsed or countersigned the articles, were owners, and shared in the proceeds.</p>

Assumpsit upon a promissory note. At the trial in the Court of Common Pleas, before Strong J., the defendant’s counsel produced a statute of the United States, (1 Cong. 2 Sess. c. 29, § 4,) which enacts, that “ no sum exceeding one dollar shall be recoverable of any seaman or mariner by any one person, for any debt contracted during the time such seaman or mariner shall actually belong to any ship or vessel, until the voyage, for which such seaman or mariner engaged, shall…

<p>A purchases an equity of redemption and enters on the land, and at the request of B, and for a consideration paid by him, C the mortgagee assigns his interest to A. Held, that B had no estate in the land, or at least none that was liable to be taken on execution.</p> <p>In trespass qu, cla, Jr, against two, the defendants sever in their pleas, and the jury assess several damages against them. Ordered, that one execution issue against both for costs only, and several executions for the several damages.</p>

This was an action of the case against E. Tileston, M. Hollingsworth and A. Fuller. The declaration alleged that the defendants wrongfully did erect cí a certain dam ” in and across Neponset river, and The defendants pleaded jointly the general issue and the statute of limitations.

<p>Trespass for entering the plaintiff’s close and carrying away a padlock, boards, &c. The cause was tried in the Court of Common Pleas, before Williams J., upon the general issue.</p> <p>The plaintiff was the owner and in the actual possession of the close, and the defendant entered thereon and carried away the padlock, which was hanging upon a nail on the plaintiff’s corn-house, and some boards which had been fitted and actually used in the corn-house for die purpose of putting up corn in binns, but had never been fastened to the building by nails, screws, or pins. The defendant, at the time when the close was conveyed to the plaintiff, was in the occupation of it as tenant at will to the former owner, and during his tenancy he had procured the padlock and used it in the ordinary manner to secure the corn-house, and he had also procured and fitted the boards as above mentioned. The plaintiff, after the close was conveyed to him, entered thereon and determined the tenancy of the defendant, giving him lib erty to carry away his own chattels then on the close, and the defendant carried away the padlock and boards, claiming them as his own.</p> <p>The plaintiff contended that the padlock and boards were fixtures or appurtenances to the real estate, and that they passed to him by the conveyance of the close with the appurtenances ; but the judge directed the jury otherwise, and a verdict being returned in favor of the defendant, the plaintiff filed his exceptions to such direction.</p>

<p>On a case stated it appeared, that Pratt delivered the note to the plaintiff in its present form, for a valuable consideration ; that the money due on it was frequently demanded of Pratt, but that notice of his default was not given to the defendant until a short time before the commencement of this action ; and that for three or four months after the note was given, Pratt had visible property by which it might have been secured by a suit.</p>

This was an action of debt, founded on St. 1817, c. 173, for cutting trees, the property of the plaintiff.

Debt on a bond executed by Chickering as principal, and one Dean (since deceased) and Jeremiah S. Boies as sureties, for 20,000 dollars, dated the 15th of April, 1814, conditioned that Chickering By that report it appeared, that the first item of damages claimed by the plaintiffs, was the sum of 12,746 dollars, said to have been received by Chickering for account of the plaintiffs, but which he converted to his own use.

<p>The defendants were summoned to answer to B. S. W. of Hingham &c. in a plea of trespass on the case, for that whereas heretofore &c., by an act made and passed on the 5th of March, 1808, entitled, 6C An Act to establish the Hingham &c. Corporation,” it was among other things enacted, that certain persons &c. should be a corporation &c. for the purpose of laying out, making and keeping in good repair, a turnpike road from &c., and they were thereby authorized &c. to erect a bridge over said Back river, &c., and also to erect a bridge over said Fore river, &c., which bridges, it was and is therein enacted, should be well built, &c., at least twenty-eight feet wide, and should have a railing on each side, &c., and that the said bridges should always be kept in good, safe and passable repair, &c., and after the making of the said act &c., the said corporation, the defendants, did lay out and make a turnpike road, &c., and did build bridges, &c., and thereupon did lay open, and thence hitherto have kept open, the said turnpike and the said bridges thereon, &c., for passengers &c. to go, return, &c., with horses, &c., at their free will and pleasure, paying a certain toll, &c., which the said corporation &c. were &c. authorized to and do receive at certain gates, &c., and the plaintiff says, that before, &c., the said bridge &c. over Fore river aforesaid was not twenty-eight feet wide, as by law &c., but at the draws thereof was &c. only fourteen feet wide, and before and at the time aforesaid there was no sufficient railing &c., but the railing on the sides &c. was weak &c., and the bridge &c. was not in good, safe and passable repair, as by law &c., yet the said corporation, wel knowing &c. the premises &c., did not, nor would, widen the said bridge at the draw thereof, nor make a good &c railing &c., nor would keep &c. the said bridge in good &c repair, &c. By means whereof the said plaintiffs &c., on the 5th day of October, 1824, to wit, at Quincy, &c., being passing with M. S. W. since deceased, then wife of the said plaintiff, and Jerusha C. Cotting, in a certain gig of the plaintiff, drawn by a certain horse, on, along and partly over the same bridge and on the draw thereof, &c., the said horse being frightened, &c., the wheels &c. were pushed by the said horse against the said railing &c., which said railing &c., being weak &c., immediately thereupon &c. gave' way, and the said horse and gig or chaise, with the said plaintiff and his said wife and the said J. C. C. therein, were thereby precipitated &c. into the said river &c., to the damage &c</p> <p>The jury found a verdict for the plaintiff, assessing his damages at 600 dollars</p> <p>The defendants moved in arrest of judgment, because the plaintiff had not, in his declaration, alleged that he paid, or offered to pay, to the corporation or their agent, any toll for passing their road and bridges at the time of the injury ; — nor that he was at that time liable to pay any toll for passing them; — nor that the corporation had reasonable and sufficient notice of the defects complained of; — and also because the action was brought at common law, and not upon St. 1804, c. 125.</p>

<p>On the 19th of October, 1807, Nathan Dewing, being indebted to Abel Perry senior in the sum of 400 dollars, conveyed to him the land described in the petition, and on the same day Perry executed and delivered to Dewing a bond, conditioned to reconvey the land in two years, provided Dewing should in that time pay him that sum with interest. These were the only papers that were executed between them. On the 30th of December, 1806, Perry made his will, and appointed his son Abel Perry executor, and among other things, bequeathed to him 11 all the obligations for money that might be due to him, the testator, at the time of his decease.” The testator died in April 1808, and in June following the will was proved and allowed. At April term 1811 of the Court of Common Pleas, the executor brought an action of ejectment to recover possession of the land for the non-payment of the 400 dollars and interest; and at the next September term he recovered judgment for possession, unless the sum of 512 dollars should be paid in two months and interest thereon; and on the 10th of December next ensuing a writ of possession was issued, and on the 28th of the same December the executor, having previously received full satisfaction of the same sum, interest, and cost of suit, by his deed of release and quitclaim reconveyed the land to Dewing. The respondent held under Dewing. The petitioners were heirs at law of Perry senior, and the land was not devised by him, otherwise than by the devise to his son before recited.</p>

Writ of entry. On a case stated it appeared, that in January 1820, one Fairbanks conveyed the demanded premises to one Griggs in mortgage ; that in February following, one Chapin attached the right in equity of redemption, and after-wards caused it to be sold on execution ; that the officer, in his return of the execution, stated that on the fourth of November, 1820, (which was Saturday,) he exposed the right in equity of redemption for sale, and for want of purchasers,…

Assumpsit to recover expenses incurred by the plaintiffs for the burial of Henry Snell and the support of his wife and three children, paupers whose settlement was alleged to be m Hopkinton. Trial before Morton J., upon the general issue. It was proved that John Snell had a settlement in Hopkinton, and that Asa Snell was the son of John, and Henry the son of Asa.

<p>This was an action, commenced before the preceding case was determined, to recover expenses incurred in the further support of the same paupers.</p> <p>On a case stated it was agreed, that the settlement of the paupers was in Hopkinton ; that in September 1823, previously to the commencement of the former suit, a written notice from the overseers of the poor of Walpole was delivered to the overseers of the poor of Hopkinton, stating that Eliza Snell and her four children were chargeable to Walpole, and that their settlement was in Hopkinton, and that at the same time the overseers of Walpole stated verbally the several ages of the four children, who were all minors ; and that the overseers of Hopkinton, in October following, returned an answer denying the settlement of Henry Snell to be in that town. ana stating that the settlement of Asa Snell, from which Henry’s was derived, was in Barre.</p> <p>It was further agreed, that during the pendency of the former suit, a letter from the overseers in Walpole was delivered to one Valentine, at the state-house in Boston, he being then a member of the house of representatives and attending the sessions of the house, and also being then one of the overseers of the poor of Hopkinton ; that Valentine did not open the letter, but lost or mislaid it, and it was never answered ; and that the letter was as follows, — ££ Eliza Snell and her three children, whose legal settlement is in your town, and for whose former support and the charges for the burial of Henry Snell her husband an action is now pending against you, &c., are still on expense. These are to request you to order their removal, &c., and pay the expense which we have incurred,” &c.</p> <p>If on these facts the plaintiffs were entitled to recover for the support of the paupers or either of them, damages were to be assessed by a jury ; otherwise they were to become nonsuit.</p>

<p>Where a member of a religious society having, pursuant to St. 1811, c. 6, filed a certificate of his membership with the clerk of the town in which he lived, removed before the passing of St. 1823, c. 106, to another town, it was held that he was not obliged to file a certificate, under the last statute, with the clerk of the oldest religious society in such town, in order to exempt himself from taxation by that society; and it was further held, that a tax levied on his property by that society, might be recovered back by an action of money had and received brought against the society.</p>

<p>If two tenants in common grant license to a stranger to erect a dam on their land held in common, each of them is estopped to claim damages for an injury occasioned thereby to land held by him in severalty.</p> <p>A corporation having partly made a dam over marsh land and flats held in common by A, B and C, for the purpose of creating a water power by means of a full and an empty basin, A, B and C, by deed, jointly and severally release the corporation from all claims on account of making the dam, or flowing any part of the flats which may be flowed by the waters of the full basin, or obstructing the flowing of the flats in the empty basin; and they jointly give the corporation permission to complete the dam and maintain it for ever. It was held, that this deed was a bar to any claim by A alone for any injury occasioned by the dam to marsh land owned by him in severalty.</p>

<p>This was assumpsit upon the following contract; — “Newburyport, Nov. 19, 1823. Received on board brig Fanny 193 barrels of onions, which I promise to deliver to Mr. Thomas Haven, of Portsmouth, he paying freight for the same five cents per barrel. James Fowler.” Trial was had ' upon the general issue</p> <p>It appeared that the Fanny, of which the deiendant was master, was a registered vessel of 122 tons, and was going from Newburyport to Portsmouth to get freight for some southern port, and that she had only these onions on board as freight from Newburyport to Portsmouth. The defendant went with his vessel to the Pier wharf in Portsmouth, where vessels very frequently go to deliver goods which they have on freight for persons in Portsmouth, and gave notice to Haven that the onions were there for him. Haven told the defendant that he must deliver them at his (Haven’s) wharf, in Portsmouth, or he would not receive them. Fowler refused to do this, and a day or two after put the onions on the wharf, where they remained two nights and were frozen and injured.</p> <p>The plaintiff contended that the defendant, by the custom of Portsmouth, was obliged to deliver goods at the wharf of the consignee, or where he should direct, but the jury did not find that there was such a custom.</p> <p>He also contended that the defendant was bound by the general rules of law to deliver the onions at the wharf of the consignee, and that he was liable for his gross negligence in not taking reasonable and ordinary care of them.</p> <p>The jury were instructed, that if there was no custom as before mentioned, a delivery at the Pier wharf, which was a usual place of delivery, with notice to the consignee, was to Be considered as a delivery to the consignee ; and that if the defendant gave notice to the consignee that the onions were at that wharf for him, and he suffered them to remain there until they were injured by the frost, it was the negligence of the consignee, and not of the defendant.</p> <p>The verdict was for the defendant, and the plaintiff moved for a new trial on account of misdirection.</p>

<p>A letter of attorney, irrevocable, to receive a sum of money to the attorney^ own use, is primé, facie an assignment; but being not a direct, but only a constructive assignment, it is capable of being explained by extrinsic evidence.</p> <p>An offer to pay any sum of money by way of compromise of a pending controversy, cannot be received in evidence against the party making it; but any independent facts admitted during the treaty of compromise, may be given in evidence as confessions.</p>

<p>The plaintiff having delivered wool to one S to be manufactured, called on him ia order to ascertain what progress had been made, and S showed him some wool, yarn, &c., wh’ch he said were the plaintiff’s. In trover against the defendant, wjo attached the wool, &c., as the property of S, it was held that this declaration of S, who afterwards absconded, was admissible in evidence, as part of the re* gest<B9 to prove that the wool, &c., were the property of the plaintiff</p>

<p>If a judge of probate grants leave to bring an action upon a probate bond, for the benefit of an individual, upon his filing a bond to indemnify the judge against the costs of the suit, and the action is brought before such bond is filed, the judge may afterwards receive such bond, and it will relate back to the commencement of the action</p> <p>In an action on a probate bond brought for the benefit of a legatee, it is too late for the defendant, after a confession of the forfeiture of the bond, to object that the action will not lie, because the legatee’s demand had not been reduced to a certainty by a judgment of court or otherwise.</p>

<p>Assumpsit. The action was commenced on the 4th of June, 1825, on the following promissory note : —u Methuen, June 7, 1815. For value received, I, Amos Barker, as principal, and I, Elijah Jennings, as surety, promise to pay to Mr. James Frye, or to his order, one hundred dollars, on demand, with interest till paid; as witness our hands. Amos Barker. Elijah Jennings. Attest, Jesse Bodwell.” Plea, the statute of limitations. Replication, a new promise within six years.</p> <p>At the trial, before Putnam J., it was in evidence, that m October or November 1824, an action upon the note neing then pending in this Court between James Frye and the defendants, Barker told the agent of James Frye, that if he would take the note out of the law and pay the costs, they (using the word we) would pay the debt'. That action was discontinued and the costs paid accordingly. Jennings being told of this arrangement, said, “We were always willing to pay the debt, if Frye would take it out of court and pay the costs.”</p> <p>Between the end of October term 1824 of this Court and the commencement of this action, James Frye indorsed the note to Daniel Frye the plaintiff. In February 1825, Jennings told the plaintiff to sue the note at the next March court, or he (Jennings) would not pay it; he would not stand bound any longer than March court. On the 5th of March, 1825, the plaintiff called on Barker and asked him to pay the note, and told him what Jennings had said. Barker replied, that if the plaintiff would not put the note into the law, he would pay him within two months, or give him satisfactory security ; but that he would not pay it in the law, and would not pay any costs.</p> <p>The plaintiff was to be nonsuited or the defendants defaulted, according as the opinion of the Court should be in favor of one or the other, upon the foregoing facts.</p>

<p>This was assumpsit upon an indorsement by the defendant on a negotiable promissory note given by L. Pierce to the plaintiff, dated December 1, 1820, payable in twelve months, with interest after six months. The indorsement was made in blank, about three months before the note became due, and was filled up by the plaintiff as follows : —c< Eastport, Dec. 1, 1820. For value received I promise to pay Perley Tenney or order the within sum, being 824 dollars, 65 cents, in twelve months from date, with interest after six months.” A verdict was taken for the plaintiff, subject &c.</p>

<p>Assumpsit for money had and received. On a case stated m the Court of Common Pleas, it appeared that the plaintiff, being a resident in Newbury, went with his horse and wagon to a turnpike gate in that town, and demanded liberty to pass free of toll, saying that he was going to Newburyport to purchase some articles for family use; but the tollgatherer refusing him such liberty, he paid the toll and went directly to Newburyport for the single purpose above-mentioned, passing on no part of the turnpike road in any town other than the town of Newbury. Howe J. directed a nonsuit; upon which the plaintiff filed his exceptions.</p>

<p>This was an action for a malicious civil suit. The plaintiff declared in his second count, that he was the owner of a schooner called the Mercury, which schooner was, on the 10th of September, 1822, at Prince’s Island, on the coast of Africa, and that one John H. Swift shipped on board the Mercury, among other goods, a parcel of ivory, all which goods the master of the vessel, by a bill of lading, promised to deliver to J. H. Swift, or his assigns, at the port of Newburyport or Boston, — by means of which promise the plaintiff became bound to deliver the goods to J. H. Swift, or his assigns, or legal representatives duly authorized to receive ihe same, and to no other person whatsoever; that on her arrival in the United States, the defendant, without any claim, title or color of right as the owner of the ivory, or as the assignee or legal representative of J. H. Swift, demanded of the plaintiff that he should deliver to him the ivory shipped by J. H. Swift, together with other ivory, the property of the plaintiff, and upon the plaintiff’s refusal, the defendant, in order to compel the plaintiff to comply with his unjust demand, and maliciously intending to vex, injure and oppress the plaintiff, and without any reasonable or probable cause of action, purchased a writ of attachment against the plaintiff, and on the 2d of December, 1823, caused the schooner Mercury, together with all the ivory shipped by J. H. Swift, and also a large quantity of ivory belonging to the plaintiff, to be taken and attached, and to be detained' in the hands of the sheriff a long time, viz. three months ; that at the court to which the writ was returnable, the defendant, well knowing that he had no probable cause of action, did not enter the same, but discontinued it; ¿tnd that by means of the causeless and malicious suit so commenced, and of the attachment, the plaintiff had been put to great trouble and expense, Stc.</p> <p>In the third count the plaintiff stated, that the defendant, as assignee of J. H. Swift, claimed to receive a certain quantity of ivory, whereas by the bill of lading he was not entitled to receive so much ; that the plaintiff was always ready to deliver the whole quantity specified in the bill of lading, to J. H. Swift or his assigns, he or they first paying the freight; that the defendant, without having paid or offered to pay the freight for any part of the ivory, and without any just or probable cause of action against the plaintiff, but maliciously intending to vex and injure him, caused the schooner Mercury &c. to be taken and attached by the sheriff, and to be detained &c. [as in the second count.]</p> <p>The action was tried before Putnam J.,.upon the general issue, and a verdict was found for the plaintiff.</p> <p>The defendant moved for a new trial, because he contended on the trial, that he had competent authority to claim the property in question and to institute an action for it, without subjecting himself to an action for a malicious suit, upon the following grounds : — 1. That he had himself paid for the whole property in an outward cargo, the proceeds of which were invested in the return cargo, consisting of the ivory in question and other articles mentioned in the bill of lading, and he was the surviving owner of the several persons whom he had admitted to a joint concern in the property, viz. his son J. H. Swift, and one Allen, according to an agreement which was in the case. 2. That the defendant was the assignee of the bill of lading in virtue of the delivery of it to him, and a letter of J. H. Swift to him accompanying the bill of lading. [In this letter J. H. Swift says : — “I should advise you to get the insurance done in this way, — whatever cargo may be shipped in schooner - Mercury.”] 3. That he was the heir at law of his son J. H. Swift. And 4. that toe plaintiff never objected to the defendant’s authority in the case, and ought not now to deny such authority, because he had admitted it by a delivery of all tire articles of merchandise, except the quantity of ivory in question, as well as by his other acts in relation to the transaction.</p> <p>The plaintiff’s counsel moved at the trial, that the jury should be instructed, that if the defendant believed he had a probable cause of action at the time when he sued out his original writ against the plaintiff, and was afterwards informed and verily believed, in consequence of the advice of Mr. Warren, a counsellor of this Court, that he had no cause of action, and he afterwards continued to detain the property under attachment for an unreasonable length of time, and the suit was in fact groundless, this action was maintained. [Mr Warren deposed, that in December 1823, the defendant called upon him for advice and assistance in an action which he (the defendant) had then lately commenced against the present plaintiff, and that upon learning that J. H. Swift was the person named in the bill of lading as consignee of the goods, and that J. H. Swift had never formally assigned his anarent interest to Asa Swift the defendant, he (Warren) stated to the defendant that the action could not be maintained, and that he had better stop it immediately ; at whicn the defendant expressed much surprise, and insisted, that as the property in fact belonged to him, and a bill of lading had been enclosed in a letter to him from his son, he could sustain the action. Warren advised him, however, as his son was probably deceased, to take out letters of administration, and Warren wrote for him a representation to the judge of probate for that purpose.]</p> <p>Putnam J., who tried the cause, reported that there was no evidence that the defendant was the sole heir of J. H. Swift; that he instructed the jury, that the defendant had not by law a right to maintain an action in his own name for the property mentioned in the bill of lading, as surviving owner, or as assignee in virtue of the delivery of the bill of lading ; and that the delivery of part of the property mentioned in the bill of lading did not amount to a waiver of the plaintiff’s right to contest the defendant’s authority to maintain the action in his own name for the residue. Ii these instructions were wrong, a new trial was to be granted.</p> <p>And in regard to the plaintiff’s motion, the judge instructed the jury, that if Swift, at the time when he purchased his writ against the plaintiff, knew that he had no cause of action whatsoever, the law would imply that he acted maliciously ; but that if he believed that he had a just and legal claim against the plaintiff, and procured his writ of attachment for the purpose of enforcing it by lawful process, he was not liable to this action, because the form or the kind of action in his suit was mistaken by his counsel, or because on trial he should, fail to support his suit; that the facts proved in the deposition of Mr. Warren might be taken into consideration in connexion with the other testimony tending to prove that the defendant knew that he had no probable cause of action when he commenced his suit, and acted maliciously, but that those facts would not alone warrant the jury in finding a verdict for the plaintiff, if upon the whole evidence they believed that the defendant supposed he had a just and legal cause of action when he sued out his writ, and that bis suit was commenced for the purpose of enforcing it, and not maliciously to vex and oppress the plaintiff.</p>

<p>Whore goods have been attached, but the officer has not retained possession of them9 notice of the attachment will not preserve his lien against an attachment by another officer.</p> <p>Thus A, a deputy sheriff, having attached goods of B in B9s store, appointed B o clerk liis keeper of the goods. C, another deputy sheriff, having attached other goods of B, deposited them in the same store, but appointed no keeper, and did not take the key of the store, which was in the hands of A9s keeper. After some weeks, A removed his goods and discharged his keeper, and soon afterwards attached the goods deposited as above mentioned, having notice that they had formerly been attached by C. It was held, that this attachment by A was valida</p>

<p>Where the assessors of a religious society assess a tax on a person who is not a mem» her, they are liable to an action of trespass ; for they do not come within the provision in St. 1823, c, 138, § 5, that in certain cases they shall be responsible only for their own integrity and fidelity.</p> <p>In the case of a person separating from one religious society and joining another, filing with the clerk of the society left a certificate of the fact, under the hand of the clerk of the society which he elects to join, is conclusive evidence of his having ceased to be a member of the former society.</p> <p>A limited privilege granted by a special statute to a few individuals, is merged in a more enlarged privilege secured to all the inhabitants of the commonwealth by a subsequent general statute.</p> <p>Thus a special statute providing that the inhabitants of a particular town may sepa • rate from a religious society by the performance of certain conditions, is repugnant to and repealed by a statute giving such power to all the inhabitants of the commonwealth upon the performance of only part of those conditions ; —or if the two statutes, though dissimilar, may yet stand together, it is sufficient for a person to bring himself within the provisions of either.</p>

<p>A stockholder of a bank transfers his shares to the corporation by a writing absolute in form, and surrenders his certificate of stock, and at the same time leaves with the cashier an agreement, in which, after reciting that he had transferred the shares as collateral security for the payment of a certain note to the bank, he covenants that if the note shall not be duly paid, the bank may sell the shares and apply the proceeds to the payment of the note and hold the surplus to his use; he pays interest from time to time upon the note after it has fallen due, and continues to receive the dividends upon the shares. Held, that he is stiR a member of the corporation.</p> <p>In an action brought by a bank, the writ was served by a deputy sheriff who was a member of the corporation. Held, that he was not a party to the writ, within the meaning of St, 1783, c. 43, and so the service was valid.2</p>

<p>A negotiable promissory note may be given in evidence under a money count, in afi action by the indorsee against the maker.</p>

<p>In an action by an indorsee against the maker of a promissory note payable on demand, the declaration set out an indorsement in common form, but by the indorsement proved, payment was not to be demanded within a year from the date there of. Held a variance, notwithstanding the year had expired before the action was commenced.</p> <p>Leave to amend granted after verdict.</p> <p>Whether a foreign attachment is not dissolved by the defendant’s dying insolvent, qucsre.2</p>

<p>This was an action on the case, charging the defendants with enticing from the plaintiffs’ employment certain workmen skilled in several departments of glass-making, and taking them into the service of the defendants, who were proprietors of a glass manufactory at Lechmere’s Point in Cambridge.</p> <p>The plaintiffs proved that some of the workmen were in their employment until the day when they were engaged in the employment of the defendants, and that it was mutually understood that neither party should withdraw from the engagement without giving a fortnight’s notice.</p> <p>The plaintiffs also offered in evidence certain articles of agreement, made between some of the officers of the plaintiff corporation, some of the defendants, and other persons, all being concerned in the manufacture of glass, by which each party stipulated, that he would not employ any workman who might be in the service of either of the others, unless such workman first produced a written discharge, and would not encourage any such workman to seek a discharge ; that each party should keep the others advised of the names of the workmen in his employment; and that the agreement should continue in force five years. The defendants objected that this agreement, if it proved any thing, was a contract, and not evidence in this action. It was rejected by the chief justice ; but lists of the names of workmen, which had been furnished by the plaintiffs, were admitted in evidence.</p> <p>One of the men supposed to have been enticed, having been called as a witness by the defendants, testified that Parmenter, one of the defendants, agreed with him, the day after he had given notice to the plaintiffs that he should leave their service in a fortnight, to receive him into the de fendants’ works ; and it appeared that this man, and another who was called by the defendants, received pay from the defendants for the last fortnight while they were under pay from the plaintiffs ; but it did not appear that any offer was made before notice had been given, and the men remained with the plaintiffs until the fortnight after notice had expired.</p> <p>The defendants contended that they had a right to make a bargain with the men during the continuance of their service with the plaintiffs, to take effect only after the expiration oí that service according to notice. But the chief justice instructed the jury, that while the actual employment continued, though after the notice to quit, it was not lawful for the defendants to malte any bargain or any offer of employment to take effect at a future time, and that if the jury believed the witness, they must return a verdict against Parmenter, and such others of the defendants as they should be satisfied participated in the transaction.</p> <p>A verdict was found for the defendants. If the evidence offered by the plaintiffs and rejected at the trial ought to have been admitted, a new trial was to be granted. If the foregoing instruction to the jury was correct, the Court were to judge whether a new trial should be granted on account of the verdict’s being against the evidence on that point.</p>

Assumpsit on a valued policy of insurance, by which 2500 dollars were insured on the cargo or freight on board the brig Henry, for twelve months, at sea or in port, from November 20, 1823.

<p>á witness having testified that he made a certain statement in conversation with A, evidence was admitted, for the purpose of impeaching his credit in point of recollection, of his having made a different statement to B, when A was not present, rhe master of a vessel writes to his agent, that he ie shall sail on the 12th,” &c., and the agent, in effecting insurance for him, represents that he “ expected to sail about tlu 12th.” Held not to be a misrepresentation, the first expression denoting only an expectation</p> <p>In effecting insuiance on property on board a certain brig from Kingston to St. An drews, the assured communicates truly to the underwriter, that he is informed by the master of a vessel .which left Kingston on the 20th of August, that the brig was to sail in four days after, which would make her within time, but she had in fact sailed on the 12th, so that she was out of time. Held not to be a misrepresentation.</p>

<p>Assumpsit for money had and received ; lent and accommodated ; and paid, laid out and expended. Two special counts were filed at the term of the trial.</p> <p>The ground of the action was, that in April 1822, in Georgia, a promissory note was made at the request of the defendant, for the sum of 1700 dollars, by J. Denniston, payable to the plaintiff, and by him indorsed for the purpose of being discounted for the use and benefit of the defendant at a bank in Georgia; that the note was discounted at the hank and the money received by the defendant, who had undertaken to indemnify the plaintiff, and for that purpose had assigned to him conditionally a patent right; that after one or two renewals of the note at the hank, it was paid by the plaintiff out of his own funds, by giving a new note signed by himself and indorsed by one Clafflin, and that he had received nothing therefor from the defendant.</p> <p>The jury were instructed by the chief justice, that if they were satisfied that the note was made at the request of the defendant and for his use and benefit, and that the plaintiff was the party to the note on whom the bank relied, and that the debt was paid to the hank by the plaintiff, this would con stitute a good ground of action for money lent and accom modated. Also, that the giving a new note to the bank by the plaintiff, with another indorser, in lieu of this note, after it had been several times renewed, the first being given up as paid, was, without evidence of payment of the new note, a payment in law of the first note, so as to entitle the plaintiff to recover upon the money counts.</p> <p>The defendant objected to the filing of the two special counts, as being for a different cause of action; which objection was overruled.</p> <p>A general verdict was found for the plaintiff, and the de fendant moved for a new trial.</p>

<p>Assumpsit for money had and received, goods sdld and delivered, and on other money counts. Trial was had before the chief justice upon the general issue.</p> <p>The plaintiffs proved, that on the 27tli of October, 1825 they, being auctioneers, offered for sale 40 hogsheads of gin The condition of sale was, that the purchaser should give a note payable in four months, with a sufficient indorser The gin was bid off by one Bryant, and was on the same day removed by him to the store of Bryan & Mitchell, where it was stored for him. The removal was known to the plaintiffs and not objected to by them, it being necessary to remove the gin from the street. The plaintiffs’ clerk, when Bryant was about removing it, inquired whom he intended to give as indorser. Bryant answered, Vincent the defendant, and asked if that would be satisfactory. The clerk said he could not tell, but that if it were not, he must furnish a good indorser. Bryant applied to Vincent to become his indorser for the purchase, and Vincent consented, on condition that the notes or other proceeds of the gin, as Bryant should sel it, should be deposited with him. On the 11th of November the note was indorsed by Vincent and sent by Bryant to the plaintiffs ; who immediately sent it back, informing Bryant that the indorser was not satisfactory. Afterwards some conversation took place relative to procuring another indorser, but nothing further was done, and no note was given to the plaintiffs.</p> <p>On the day of the auction and before the gin was removed fr0111 the street, Bryant, without the knowledge of the plain-so]c] four hogsheads to Withington & Russell, at a small advance, and took their note payable in four months, and the four hogsheads were delivered to them and were afterwards disposed of by them in the course of business.</p> <p>On the 13th of November, Bryant failed, and being indebted on account to Vincent, delivered to him the note of Withington & Russell, which when due, and since the commencement of this action, was paid by them to Vincent. On the 23d of November, Bond, one of the plaintiffs, called on Bryant for the gin, and Bryant gave him an order on Bryan & Mitchell for all that was in their store,- which was delivered accordingly. Bond then asked Bryant for the note given by Withington & Russell, and was informed that Vincent had it. At the plaintiffs’ request, Bryant asked Vincent for the note, but he declined parting with it, because, though his indorsement was not received, he had a right to keep the note on account of a balance due to him from Bryant. On the 3d of December, Bond demanded the note of Vincent; which he refused to deliver, claiming to hold it for the purpose above mentioned.</p> <p>Vincent knew, before the note of Withington & Russell was delivered to him, that his name was not received as indorser, and he also knew that no other security had been given to the plaintiffs for the gin. A verdict was taken for the plaintiffs by consent for the amount of Withington & Russell’s note, with interest from the date of the writ; and if on the foregoing facts the plaintiffs ought to recover, judgment was to be entered on the verdict ; otherwise the plaintiffs were to become nonsuit.</p>

The sheriff of Nantucket was commanded to attach the goods of N. Russell, deceased, in the hands and under the administration of D. Cottle, administrator &c. of Russell, and to summon Cottle, as he was administrator, to answer to the plaintiff, for that Cottle, as administrator aforesaid, being indebted to the plaintiff in the sum of 3690 dollars, according to an account annexed to the writ, in consideration thereof, promised &c., — and also for that Cottle, in his capacity…

Assumpsit for money had and received. Trial before Wilde J. upon the general issue. The defendant owned three fourths, and T. H. Howland one fourth, of the brig Chatsworth and cargo, bound on a voyage to South America. On the 25th of January, 1822, the defendant drew a bill of exchange for 10,000 dollars on J. Bates, the master of the brig, to whom the brig and cargo were consigned for sale, and who paid the bill out of the proceeds of the brig and cargo.

Assumpsit for supplies furnished to the master of the schooner Sea Flower for a fishing voyage, and charged to the owners. All the supposed owners were sued, but the writ was served only on the defendant. The plaintiff read m evidence a copy of the enrolment, by which it appeared, that at the time of enrolling the schooner, the defendant was one of the owners.

Information in the nature of a quo warranta, filed by the direction of the legislature, alleging that the respondent has erected and still maintains a bridge across a navigable arm of the sea between Chelsea and Belle Island, whereby the passing of vessels is obstructed, and requiring him to answer by what warrant he claims to keep up and maintain the bridge.

<p>Trover for forty barrels of gin sold by the defendants to the plaintiff, on the 22d of February, 1826, at the rate of about 30 cents a gallon. On the 22d of March the plaintiff paid the price and demanded the gin, but the defendants refused to deliver it; and on the 15th of June this action was commenced. On the 11th of November, which was before the trial, the defendants resold the gin for about 46 cents a gallon, the terms of sale being cash. The jury found a verdict for the plaintiff, and assessed damages in a sum equal to the value of the gin on the 22d of March, the time of the conversion, with interest from that time to the time of trial.</p>

These were bills in equity, brought by the heirs at law oí William S. Skinner, for the purpose of redeeming two parcels of land mortgaged by him to the defendant. The complainants alleged a demand upon the defendant in 1826 to account.

<p>This was assumpsit on a policy of insurance, dated December 16th, 1819, on the ship Marmion and cargo from Boston to any port or ports beyond the Cape of Good Hope, one or more times to the same port, for the purpose of selling the outward and procuring a return cargo, and at and from thence to port of final discharge in Europe or the United States, (not both,) with liberty to stop at the usual places for refreshments and to trade thereat.</p> <p>At the trial, before Parker G. J., it appeared that the vessel sailed on the 29th of January, 1819, for the coast of Cochin China, where the master was directed to purchase a cargo of sugars; but having only gold coin on board, with which he could not trade, he sailed thence to Manilla, intending there to purchase a cargo of sugars, or to exchange" .his gold for silver and return to Cochin China. Being unablti to obtain a cargo of sugars at Manilla, he exchanged his gold for Spanish dollars and returned to Cochin China, and proceeded to the port of Saigon, up a river of the country, where no American vessels had been before. At this port about one eighth part of a cargo in sugar was procured, but the master, finding he should be unable to complete his lading there, sailed thence about the 1st of February for Batavia, to procure the rest of his return cargo, at which place he arrived about the 20th of February. He found that sugars were scarce and dear at that port. He also ascertained that he might procure a cargo of sugar by sending to an outpcrt for it, and having it brought in lighters at an expense of fifty cents a picul, or might proceed to Samarang, an outport of the island of Java, and there complete his lading, or might depart and make up his cargo in some other of the numerous ports in the East Indies ; but by a law of the island he could not proceed to Samarang without discharging the sugar brought from Cochin China. Thinking it would be more advantageous for his owner to procure his cargo at Samarang than at Batavia, he sold his sugars to one White, master of the American ship Franklin, (who had accompanied him from Manilla to Cochin China and thence to Batavia,) and went to Samarang, where he purchased a cargo of sugars. The Marmion sailed with her cargo for Holland, and was wrecked off Goree on the 3d of January, 1821, and the vessel was lost, together with part of the cargo.</p> <p>Two questions were reserved for the consideration of the whole Court; first, whether the returning from Manilla to Cochin China was a deviation; secondly, whether selling at Batavia the sugars purchased in Cochin China for a part of the return cargo, and going thence to Samarang and there taking in a full cargo of sugars, was a deviation.</p> <p>As to the first point, the jury were instructed, that if the purpose of going to Manilla was to procure a cargo, or to sell the outward cargo, the ship had a right to go there, and having sold her gold, which was her cargo, she had a right to go back to Cochin China to purchase a return cargo; and there was therefore no deviation in going back to Cochin China.</p> <p>As to the second point, they were instructed, that within the general terms of the policy, if the sole object of selling the sugar at Batavia was to procure a cargo at Samarang, the transaction was justifiable and not a deviation ; that whether that was the object or not, was a matter of evidence ; that the master stated expressly that such was his object; that sugar was high and very scarce at Batavia, and that he made nothing by tire sale to White ; and that it was agreed that the vessel could not proceed to Samarang without unloading the sugar purchased in Cochin China ; that a sale for the sake of profit, or for speculation, with a view to make two voyages instead of one, was certainly not allowable, and therefore ii half or three fourths of a cargo had been obtained at Cochin China, in point of evidence of intention the case would be very different.</p> <p>The jury returned a verdict for the plaintiff; if the fore going instructions were wrong, a new trial was to be granted.</p>

<p>Error to the Court of Common Pleas. Joseph Hemmenway and Phineas Hemmenway, the original defendants, were attached to answer to Hickes et al., the original plaintiffs, “ for that the said John and Phinéas, at &c., promised the plaintiffs to pay them, or their order, the sum of one hundred and seven dollars and thirty-two cents, on demand, with interest. And also, for that the said John and Phineas, at &c., being indebted to the plaintiffs in the sum of nine dollars and twenty-five cents,” &c. The ad damnum was laid at' 100 dollars. Judgment was rendered upon a default.</p> <p>Among the errors assigned were, 1. that in the writ of Hickes et al. it is not alleged that Joseph and Phineas H. were indebted to them ; — 2. that in the first count it does not appear, that the promise therein set forth was upon any consideration ; — and 3. that the judgment for damages was for a greater sum (viz. 123 dollars and 53 cents) than the damages claimed in the writ.</p> <p>At the next term of the Court of Common Pleas after the judgment was rendered, upon motion of the original plaintiffs and notice to the other party, a remittitur of the excess of damages was entered upon the record. This, it was stated by the counsel, was before the xvrit of error was sued out, but not until after Joseph H. had been committed on execution and had broken his bond for the prison liberties.</p>

<p>Declaration alleging that the defendant, as deputy sheriff, attached goods of A, on a writ of attachment sued out by the plaintiff against A as principal defendant and B his trustee, and wrongfully neglected to levy the plaintiff’s execution upon the goods so attached : —plea, that the defendant, before he attached the goods on the plaintiff’s writ, had attached them on a writ sued out by C against A as principal and B his trustee, and that he afterwards levied C’s execution on tne same : — replication, traversing an allegation in the plea, that after the attachment on C’s writ,66 the defendant took the goods into his possession subject to that attachment.” Held, that the replication was ill, as being a traverse of an immaterial allegation; that it could not be understood as a denial that any valid attachment was made on C’s writ, and that if it could, still it was ill, as being argumentative.</p> <p>Declaration alleging that the defendant, as deputy sheriff, attached goods on a writ of attachment sued out by the plaintiff against A as principal and B his trustee and did not apply them in satisfaction of the plaintiff’s execution, but falsely returned thereon, that previously to the "plaintiff’s attachment, the defendant, in obedience to a writ sued out by C against A as principal and B his trustee, summoned B, who then had the goods in his possession, whereas they had before been taken out of his possession by the defendant. Held, that it was not necessary for the plaintiff to state whether on his writ the goods were attached in the hands of the trustee or in the common mode; that it was sufficient to allege that the execution was delivered to the defendant within thirty days after judgment, to be levied on the goods attached, without averring that the defendant could have seized them on the execution, or that he was requested to seize them; and that the allegation that the return was false, in stating that the goods were under a previous attachment, was material and traversable.</p>

<p>Writ of entry. Upon a case stated it appeared, that the demandants were the heirs at law of-Moses Barker, who in 1793, being then seised in fee of the demanded premises, conveyed the same in fee and in mortgage to one Gerry. In 1803, Gerry assigned the mortgage to one Jeffries. In May 1806, Barker’s right in equity was sold on execution to one Mackay. In July 1806, Jeffries, having obtained a judgment and writ ®f possession against Barker the mortgager, entered by virtue of the same and continued seised of the premises until March 1808, when by his deed of that date he sold and released all his right, title and interest to Barker the mortgager. The tenants claimed by virtue of a conveyance to them in January 1808, of all the right, title and interest which Mackay acquired by his purchase of the equity of redemption. In that year, and after the conveyance from Jeffries to tne mortgager, the tenants entered on the premises, and have continued in possession ever since. According as the opinion of the Court should be upon the foregoing facts, the demandants were to be nonsuited or the tenants defaulted.</p>

<p>This was a bill in equity, setting forth, that each party claiming to own in fee simple a certain parcel of the soil of the ancient mill creek, so called, adjoining other lands belonging to them respectively, they made an agreement, in writing, under their respective seals, by which they submitted to the award of L. Shaw, S. Hoar, and W. Sturgis, all matters in controversy in the premises, and agreed that the arbitrators should determine the boundaries between their estates, and that they would execute any deeds of release necessary and proper to give effect to the award ; that after wards the arbitrators heard the parties, and awarded that the plaintiff had a lawful title to certain land described in the award, and that the defendants should, within thirty days from the publication of the award, make, execute and deliver to the plaintiff, his heirs and assigns, a good and sufficient deed of release and quitclaim of the land so described ; that the award was duly published, yet that the defendants, though specially requested since the expiration of the thirty days, had not executed and delivered to the plaintiff a deed of release and quitclaim, but refused so to do. The bill prayed that the defendants might be compelled to make and execute to the plaintiff a deed of release.</p> <p>The defendants demur to the bill, because it does not contain sufficient matter of equity whereupon the Court can ground any decree in favor of the plaintiff or give him any relief against the defendants; because the Court, as a court of equity, has not jurisdiction over the matters contained in the bill, and it is not competent for the Court to inquire into the submission and award, and to decree a performance thereof; and because the plaintiff has a plain and adequate remedy at the common law.</p>

Replevin for divers goods. The defendant pleaded, that at the time of taking the goods, the property was in S. and J. Robinson and D. R. Newson, and traversed that it was in the plaintiffs ; and on this traverse issue was joined.

This was a bill in equity. The case was argued by Shaw and Bartlett for the plaintiffs, and by Townsend for the defendants. The questions raised will appear sufficiently in the opinion of the Court, which was delivered by

<p>The plaintiff, indorsee of a promissory note, who lived in New York, observed, when he received it, to his immediate indorser, who lived elsewhere, that he had no confidence in the other parties to the note, and did not know them, and should look wholly to the defendant; and the defendant replied, that he should be in New York when the note became due and would take it up, if it were not paid by any other party to it. Helds that this was a waiver of a right to notice of the dishonor of the note, and that an attempt on the part of the plaintiff to give such notice did not affect the question.</p>