Volume 22 — Massachusetts Reports

<p>Id an action against the promisor by the holder of a promissory note indorsed after it was dishonored, the defendant cannot file in set-off a demand against the payee. Semble. But whether lie may not give in evidence, under the general Issue, the same facts which would constitute a defence in another form if the payee were the plaintiff, quesre.</p> <p>In such action the defendant proved, that there being an unsettled account between himself and the payee, the payee agreed to take up the note from a creditor, to whom he had indorsed it, and upon a settlement of the account, to deliver it to the defendant; that the payee did take it up for that purpose, and that there was a balance due from him to the defendant exceeding the amount of the note. Held9 that tliis agreement operated as a payment of the note.</p>

<p>Replevin. The defendant traversed the plaintiff’s property in the goods replevied, and issue was joined thereon.</p> <p>At the trial, before Wilde J., it was testified on the part of the plaintiff, that he was a West India goods trader, and that he furnished one Chanly, from time to time since De cetnber 1824, with divers goods in the same line, to be sold at a retail shop kept by Chanly, which goods were marked at certain prices, such as were usually charged to purchasers by the plaintiff; that it was agreed between them, that Chanly should pay for the goods at those prices, as fast as he could make sale thereof, and whatever he might ob'am over was to be his profits; the goods were to remain the plaintiff’s, until sold, and such articles as should not be sold were to be returned to the plaintiff; and if any were lost by fire or otherwise, the plaintiff was to bear the loss ; but whatever was sold was to be at Chanly’s risk, if credit were given, and for all the goods sold he was, at all events, to account with the plaintiff, at the prices marked. It appeared in evidence, that at the time when the plaintiff began thus to furnish goods, he took from Chanly and his wife a lease of certain tenements belonging to the wife, as security for the perform anee of the agreement on the part of Chanly. Chanly failed in business before this agreement with the plaintiff, and in September 1823, took the poor debtor’s oath. During the abovementioned transactions no account had been settled between the plaintiff and Chanly, who at the time of the trial was indebted to the plaintiff in a large balance. On the part of the defendant it was proved, that he, being a constable, attached the goods in question on the 10th of June, 1826, on a writ against Chanly, to secure the payment of a debt contracted in 1822, and before Chanly’s failure. Evidence likewise was introduced to show, that during the period ol Chanly’s dealings with the plaintiff, there was nothing indicating to the public that he did business otherwise than on his own account.</p> <p>The jury were instructed, that if the' goods in question were consigned by the plaintiff to Chanly to be sold on the terms before stated, and were not actually sold to him, the property remained in the plaintiff at the time of the attachment, and the action might be maintained ; that such a consignment was not fraudulent in law, especially as to the prior creditors of Chanly ; that the case did not present a question of fraudulent sale, but whether any sale had been in fact made; that the questions, whether the word “agent” were written on Chanly’s sign, or whether he sold in his own name, or whether the plaintiff had security for the fulfilment of the agreement, were immaterial, except so far as they might affect the general question, whether there was in fact a sale to Chanly or not ; that the purchasing of other goods by Chanly, with or without the knowledge of the plaintiff was not material, provided the goods in question were the same that were consigned by the plaintiff, as above mentioned, for sale; and that of this the plaintiff was bound to satisfy them, otherwise they should find for the defendant. The jury found a verdict for the plaintiff, and the defendant excepted to these opinions of the judge.</p>

<p>Assumpsit for money had and received.</p> <p>The plaintiffs consigned goods to James Vila & Co. for sale on commission, who from time to time made advances upon them; and on the 15th of December, 1825, when they failed in business, they were in advance 147 dollars above the net amount of the sales. The goods were sold at different times to divers persons, mixed indiscriminately in the same parcels with the goods of a great many other consignors, without informing the purchasers that they belonged to more than one person, or that they were not the goods of Vila & Co., who dm ousmess in Boston as merchants on their own account, as well as on commission. In some instances the purchasers were charged in account with the amount of their purchase, and in others, notes payable to Vila & Co. oi order, were taken in payment. The amount outstanding in eluded in accounts thus charged, at the time of their failure, on account of goods sold for the plaintiffs, and which had since been paid to the defendants, as assignees of Vila & Co., was 275 dollars, and the amount included in the various promissory notes, taken as above mentioned, and which had been paid to the defendants, was 216 dollars. Vila testified that, in sales, it was the usage of his firm, and of all commission merchants dealing in the same kind of business, to mix the goods of various consignors in one lot, and to charge the same, or take notes therefor, as before mentioned; that the usage was, to negotiate notes so taken, for the benefit of the commission merchant, as his own property, whether he were in advance to the consignor or not, and that in case of failure of the purchaser, notice was not usually given to the consignors, but they were charged with the debt as a bad debt j that the notes were not usually claimed by or given up to the consignors, the number interested in a single note rendering it in most instances impracticable; that an account of the amount of goods sold for each consignor was kept, wherein he was charged with advances &c. and bad debts, and credited with the amount of sales ; that this usage was generally known to the various consignors who sent goods to this market for sale; and the witness believed that the plaintiffs had notice of the usage, and tacitly assented thereto. Other witnesses testified to the continuance of this usage for fifteen years, and that it would be extremely inconvenient to transact the. business of commission merchants, selling principally to country traders (as those dealing in American goods do), in any other way.</p> <p>Vila & Co. on their failure, by indenture tripartite, dated December 15, 1825, assigned all their effects to the defendants, in trust to pay them and their other creditors the moneys due to them. The assignment contains a covenant not to sue, and a release of all demands, and was executed by the plaintiffs before the commencement of their suit. The amount of their demand was contained in a schedule attached to the indenture at the time of their signing and sealing it, ana the sums claimed by them were included in the notes and accounts contained in the same schedule. This indenture was offered in evidence by the defendants, to show that the plaintiffs had treated Vila & Co. as their debtors for the sums they now claimed of the defendants, and had released the same.</p> <p>A verdict was taken for the plaintiffs, subject to the opinion of the whole Court.</p>

<p>The rule, that a promissory note given in a partnership name shail, in the hands of an innocent holder, be considered, primA facie, as having issued for the partnership account, is limited to cases where the signature or other circumstances indicate a partnership concern.</p> <p>So that where a partnership was carried on in the name of an individual, it was held, that a note in common form, signed by such individual, did not ptimA /acts bind his copartners; and that upon the question, whether it was given for the use of the copartnership, the burden of proof was on the holder.</p>

<p>A promissory note payable on demand, with interest after a limited term, wil alp-port an action brought before the expiration of that term;1 wherefore, in the case of goods sold and delivered, to be paid for by such a promissory note, if the vendee neglects or refuses to give the note, the vendor may forthwith bring indebitatus assumpsit for the price.</p> <p>A usage of an individual, which is known to the person with whom he deals, may be given in evidence, as tending to prove what was the contract between the parties.</p>

<p>In an attempt to charge one as a dormant partner, notice was given to him to produce at the trial the original contract of copartnership, a copy of which was annexed to the notice. Helds that notwithstanding die supposed copy differed materially, in one particular, from the original contract, the notice was sufficient to let tlie plaintiff into parol evidence of such contract; it not being suggested that there was more than one contract of the like kind, or that the defendant was surprised.</p> <p>Held also, that such supposed copy of the contract, and the plaintiff’s affidavit that he believed it to be a true copy, could not be used as evidence by the defendant, who had in his possession the original contract.</p> <p>Held also, that parol evidence on the part of the defendant, to show that the written agreement was different from what the plaintiffs’ witnesses stated it to be, was inadmissible; but that the defendant might introduce parol evidence to show that he had not entered into any written agreement of copartnership.</p>

<p>The domicil of a person non compos mentis under guardianship, may be changed by the direction or xvitli the assent of the guardian, express or implied.</p> <p>A person non compos, born in the county of Suffolk, removed, upon the death of her father, into the county of Middlesex, where she lived as part of her brother’s family many years, and until her death, being for the last years of her life under a guardian who provided for her support, xvhose residence was in Suffolk. Held, that her domicil a: the time of her death was in Middlesex; and that letters of administration on her estate granted by the judge of probate of Suffolk, were void for want of jurisdiction.</p> <p>The St. 1817, c. 190, § 12, bv which actions to recover real estate sold by administrators &c. on license, are limited to five years, applies only to sales made subsequently to the passing of the statute.</p> <p>Such a sale made previously to the passing of the statute, may be avoided after the lapse of txventy years.</p> <p>A grant of administration which was originally void, and not merely voidable, can acquire no validity from an acquiescence of twenty years or any longer period.</p>

<p>Chapman and Tuckerman, the supposed trustees, disclosed in their answers an indenture of assignment, dated June 18, 1822, between Ludlow of the first part, themselves, being creditors of Ludlow, of the second part, and other creditors, who should execute the indenture, of the third part, by which Ludlow assigns to Chapman and Tuckerman certain real estate, chattels, and credits, upon trust to sell the land and chattels and collect the sums due to Ludlow, and after deducting their expenses and 1000 dollars for their services in executing the trust, in the first place, to apply the proceeds to the payment in full of debts due from Ludlow to the United States, amounting to about 3000 dollars ; — secondly, to apply the residue in payment pro rata of the debts due to the assignees and the creditors of the third part, but on con dition that those creditors only shall be entitled to a dividend, who shall execute the indenture within two months from the date (and by a subsequent agreement of September 6th. within thirty days from that time) ; — and thirdly, to pay to the order of Ludlow the surplus, if any, and any dividend which would have become payable to any creditor if he had not neglected to execute the indenture. The creditors who became parties to the indenture thereby released their demands. The supposed trustees further stated, that the indenture was executed by Ludlow, one Thayer, and themselves, before the service of this trustee process, vshich was on the 3d of July, 1822. Their own demands, exclusive of the 1000 dolíais above mentioned, amounted to 4453 dollars, and Thayer’s was 2511 dollars. The amount due to creditors who afterwards executed the indenture exceeded 10,000 dollars.</p> <p>Part of the property assigned consisted of two thirds of the brig Wethered and her cargo, and one quarter of the brig Hopestill and cargo, both then at sea, and pledged to T. K. Jones & Co., from whom the assignees afterwards received a balance of 5919 dollars. Some property at St. Salvador was likewise supposed to be included in the pledge and in the balance just mentioned. The Hopestill, which was insured, was lost at sea, and the assignees received from the underwriters 3243 dollars.</p> <p>Another item was 300 barrels of beef, referred to as being under Boylston Market, but which was never there; Ludlow having only a contract, made by one Whiting, engaging to deliver to Ludlow or his order that quantity of beef. An action was brought upon this contract, and upon a judgment recovered the assignees received 1419 dollars. [See Chapman et al. v. Searle, Administrator of Whiting, 3 Pick. 38.]</p> <p>Further sums amounting to about 1100 dollars were received by the assignees ; part of which was the proceeds of some of the land assigned.</p>

This was an action on a policy of insurance, by which the defendants undertook to insure the sum of 10,000 dollars on merchandise in the store of the plaintiffs, and by them held in trust, for the term of a year, against any loss or damage by fire.

<p>Assumpsit against Otis, King, and Holden, as copartners, to recover the value of certain goods consigned by the plaintiff to King, and alleged to have been sold by the defendants. Holden, pleaded his infancy and the plaintiff entered a nol. pros, as against him. Otis pleaded that he, with King and Holden, never promised, &c.</p> <p>At the trial it appeared that King sailed from Boston, in June 1825, as a passenger in the Governor Carver, for Cumana, carrying with him the plaintiff’s goods and those of other persons, consigned to him for sale. He arrived at Cumana the last of July or first of August. Otis also went as a passenger in the same vessel, carrying with him a quantity of furniture belonging to himself, and a case of oiled cloths consigned to him for sale. On the 20th of August, King and Otis hired a house on their joint account and responsibility, and deposited their goods therein, but in separate apartments. Each made sales, from time to time as he could find purchasers, of the property under his care, and received the money for the same. In this they were assisted by Holden. To prove that they were partners, the plaintiff produced written articles of copartnership, bearing date of September 4, 1825, signed by Otis, King, and Holden, and by which they were to share in the commissions on sales. He also gave in evidence three books purporting to be a day book, sales book and leger. The sales book and leger were in the handwriting of King ; the day book principally in his handwriting or in that of Holden, with occasional entries by Otis.</p> <p>The defendant Otis proved, that on the 7th of September he sailed for Boston, leaving King and Holden in Cumana, and that during his absence all the goods then on hand were . sold by auction by King’s orders, and the proceeds paid to him. He offered to prove, that when the articles of co-partnership were signed, it was agreed between the parties, that they should not go into operation, until Otis should have arrived in Boston and ascertained whether sufficient business could be obtained to make it an object; but this evidence was rejected. Otis denied his liability in any event for such of the plaintiff’s goods as had been sold by King previously to the 4th of September.</p> <p>A verdict was taken for the plaintiff by consent, subject &c.</p>

<p>The defendant was convicted, and upon a motion in arrest of judgment, Rand contended that the indictment was defective, — because it did not allege that the tickets were advertised as being for sale within the commonwealth, and so no offence was set forth, and it was not a sufficient answer to say that the indictment followed the words of the statute ; — because it did not allege that the lottery was in this State and was unauthorized by our laws, and that the defendant advertised tickets in such a. lottery as being for sale here; — because it did not set forth with reasonable certainty the lottery, the tickets in which were advertised ; — and because the penalty was intended to be imposed only on the person who was concerned in selling the tickets, and not on the mere printer of an advertisement.</p>

This was an information filed in the Municipal Court, upon St. 1825, c. 184, which prohibits advertising lottery tickets for sale. [See p. 41.] The defendant having been convicted in this Court, moved for a new trial, first, because the chief justice charged the jury, that any written or printed paper, or painted board, at the defendant’s place of business, giving notice that lottery tickets were for sale, was an advertisement within the meaning of the statute.

This was debt upon a judgment recovered by the plaintiff against the defendants, for 8120 dollars debt, and 14 dollars costs. The defendants pleaded payment, and thereupon issue was joined.

Assumpsit on a policy of insurance upon property on board the sloop Delia, at and from New York to Lynn, with liberty to call at Newport.

Assumpsit on a promissory note made on the 19th of May, 1814, by the defendant and one Porter, whom the defendant survived, for the sum of 559 dollars, with interest, payable on demand. The defendant pleaded the general issue and the statute of limitations. To this last plea the plaintiff replied, that the action accrued within six years before the commencement of the suit; and issue was joined thereon.

Replevin of divers articles of household furniture, which had been attached, on the 11th of October, 1825, by a deputy of the defendant, as the property of one King; and which were his property, unless the same passed to the plaintiffs by virtue of a conveyance made on the 26th of September, 1825.

Debt on an administration bond, against the only surviving obligor. On the writ was an indorsement, stating that the action was brought for the benefit of Rose Hussey and others, heirs at law of the intestate. The action was entered at November term 1824, when a rule was made by consent to refer it; which rule was afterwards, at March term 1825, discharged.

<p>This was a writ of certiorari to the Municipal Court, in the case of a complaint under St. 1785, c. 66, § 2, for the maintenance of a bastard child. It was objected, that the judge of that court decided, that an accusation made by the complainant after the child was born, but before the removal of the afterbirth, charging the defendant with being the father, was not made in season to entitle her to be a witness.</p>

<p>The provision of Si, 1817, c. 190, § 16, that when any person shall die without the commonwealth, leaving estate within the same to be administered, any person interested in the estate shall be entitled to letters of administration thereon, in like manner as if such intestate had died within the commonwealth, applies as well to foreigners as to citizens.</p> <p>So of the provision in § 14, requiring the administrator to give bond with sureties for the faithful discharge of his trust.</p> <p>A resolve of the legislature empowering ” a judge of probate to take an administration bond in a mode differing from that prescribed by the general laws of the commonwealth, is not imperative; and if it were, it would be unconstitutional.</p> <p>Upon the application of a foreign administrator for ancillary letters of administration, to enable him to collect a debt due to the intestate’s estate, it appearing that the heirs had committed to him the unlimited disposition of the proceeds of the claim, that the foreign creditors had all the security for faithful administration to which by the laws of the country of the intestate’s domicil they were entitled, and that probably there were no creditors in the United States, the Court decreed that an administration bond should be taken in a moderate penalty, and one much less than the amount of the debt.</p>

<p>A clause in a policy of insurance, that the policy shall be void if transferred or pledged without the previous consent in writing of the assurers, is to be construed strictly; and nothing but an effectual transfer or pledge will come within the terms of it.</p> <p>Where fhe assured made a general assignment of his effects, including (e all policies of insurance,” it was held, that a policy in the hands of his agent, who had a lien upon it, did not pass by the assignment, within the meaning of the clause above mentioned.</p> <p>Where the assured assigned all his effects, including the subject matter of the insurance, in trust to pay his creditors and to pay over the surplus, if any, to himself, and the creditors thereupon executed an absolute release of their demands, it was held that the assured, in order to recover upon the policy, must show that there was a surplus.</p>

<p>¥his was an action of assumpsit, ia which the plaintiff de clared against the defendant for money had and received, and as drawer of a bill of exchange, and in some counts for negligence as his sole agent, and in others as joint agent with William Wyer, since deceased, in respect to the same bill and another. The material facts are stated in the opinion of the Court.</p>

<p>Assumpsit upon a policy of insurance on the ship James and cargo, “ at and from St. Johns, New Brunswick, to Kingston and a market in Jamaica, and at and from thence back to St. Johns, N. B.”</p> <p>The parties stated the following case.</p> <p>The vessel cleared at St. Johns for Jamaica on the 18th of November, 1824, and sailed thence on the 23d with a cargo, bound, according to the protest made by the supercargo and her then captain, to Port Maria in Jamaica, where she arrived on the 14th of December. She there disposed of her outward cargo, without going or attempting to go to Kingston. On the 4th of April, 1825, having received on board a return cargo, she sailed for St. Johns, N. B., and on the 30th the ship and cargo were totally lost by the perils of the seas.</p> <p>The plaintiff claims the right to prove the true destinados of the ship at the time of her sailing from St. Johns, and to introduce the instructions given to the master and supercargo, as part of the case. This the defendants resist, on the ground that neither the instructions, nor the substance of them, were communicated at the time of effecting the insurance. But if the plaintiff would be permitted to prove, on a trial by jury, what was the real destination, it is agreed that, pursuant to the instructions above mentioned, the master was to proceed to Kingston or any other port in Jamaica to which he might be ordered by the supercargo; and the supercargo was directed to proceed with the ship to Jamaica, and when off the east end of the island, if he was in season to fulfil a contract respecting part of the cargo deliverable at Port Maria on or before the 15th of December, and the time should appear favorable, to proceed direct to Port Maria; but if he should not arrive in season to fulfil that contract, his orders were to proceed direct to Kingston, there dispose of such part of his cargo as should be saleable, and proceed with the residue to Port Maria.</p> <p>• The plaintiff represents that the course from St. Johns to Kingston and to Port Maria, is the same, until the vessel arrives off the east end of the island of Jamaica.</p> <p>The port of Kingston is the principal port for trade in Jamaica, and is an excellent harbour.</p> <p>The plaintiff claims for a total loss ; which the defendants resist, on the ground that they insured the vessel first to Kingston, and from thence, if necessary, to a market in Jamaica ; that the voyage performed was not the one insured, and if commenced, there was a deviation which discharged the underwriters before the happening of the loss; or that the policy is void on account of a material concealment, and the instructions before mentioned, if received in the case, are not in compliance with the conditions of the policy.</p> <p>If the Court shall be of opinion that the plaintiff is entitled to recover, the defendants shall be defaulted ; otherwise the plaintiff is to deliver up the policy to be cancelled, and judgment is to be rendered for the defendants for costs.</p>

<p>This was an action of debt. At the trial, before the chiet justice, it was proved, that Abiel Winship and J. P. Clark were executors of the will of Edward Tyler, and in 1812, with the plaintiff and one Page as their sureties, gave a joint and several bond to the judge of probate, conditioned that “ Winship and Clark ” should faithfully perform the duties of executors.</p> <p>Hannah L. Tyler brought a suit for a legacy against the executors, which was defended by them at the request and by the written direction of other legatees and of the heirs of Edward Tyler, but judgment was recovered by the plaintiff in the suit in 1814. Clark died before the rendition of judgment, and after his death Winship acted as sole executor. The judgment was satisfied by a sale on execution of divers shares in the stock of the North American Insurance Company, which produced less than half their nominal value. The stock of that company began to fall in 1813. in consequence of spoliations, and was at the lowest price in the beginning of 1815. The shares mentioned were sold at a moment of especial depression, and brought as much as any shares sold at that time. The office was closed in January 1815, and in February a dividend of capital was made, and paid off in six per cent, stock. This dividend was eighty per cent. Two other dividends amounting to above nine per cent, were” afterwards made. In 1822 a suit was brought upon the bond, in the name of the judge of probate, against Winship, the surviving executor, and the two sureties. The breach alleged was the suffering the insurance shares to be taken and sold on execution ; and this having ' been determined by this Court to be waste, at March term 1824 judgment -was rendered in favor of the judge of probate for the penalty of the bond, and on a hearing in chancery, execution was awarded for the sum of 1213 dollars, 35 cents, damages and costs of suit. No execution was taken out, but that sum was paid by the plaintiff and Page, one half by each.*</p> <p>The defendant is the daughter and sole heir of Clark, the executor ; and estate more than sufficient to satisfy the claim of the plaintiff descended to her from her father ; and this action was brought within the time prescribed by the statute, providing for the bringing of actions against the heirs, devisees or legatees of a deceased debtor.</p> <p>The plaintiff contended, that notwithstanding Clark died before the rendition of the judgment in the suit of Hannah L. Tyler, to satisfy which the insurance stock was sold, he was guilty of unfaithful administration in defending that suit, and in not selling the shares when they would have brought the same price as other like shares sold by him belonging to the testator’s estate, and therefore was chargeable equally with the other executor for the waste which was the cause of the judgment upon the probate bond ; but the chief justice ruled that the executors were not chargeable with misconduct in defending that suit.</p> <p>It was then contended, that waste having been committed by Winship after the death of Clark, the estate of Clark was liable on account of his being joint executor with Winship, and upon the principle that the bond being a joint obligation of Clark and Winship as principals and Brazer and Page as sureties, Clark and Winship were each liable for the whole debt in case of non-fulfilment of the condition, and were each liable to the sureties in the same manner as to the obligee; but the chief justice was of a different opinion and ruled accordingly.</p> <p>The plaintiff thereupon consented to become nonsuit, with liberty to move that the nonsuit should be taken off.</p> <p>J. B. Davis, in support of such a motion, insisted that Clark committed waste in defending the action brought by Hannah L. Tyler.</p> <p>But admitting that no waste was committed until after Clark’s death, he said that a probate bond is an obligation for the payment of money, and is to be construed like any other bond; that Clark and Winship were not- only joint executors, but likewise joint obligors, and they bound themselves to save their sureties harmless. Co-obhgors who are principals are mutually liable to each other for contribution ; and if Winship had paid the whole amount of the judgment, he would have had a remedy against Clark or Clark’s heir for a moiety. If then the present action is not sustained, the surety will stand in a worse situation than the principal. So likewise sureties have a remedy against each other, and if Brazer had paid the whole sum, he could enforce contribution from Page ; and it will not be contended that sureties have not as great a right against the principal as against each c ther Com. Dig. Chancery, 2 S and 4 D 6. If the plaintiff and Page had been insolvent, and an action had been brought by the judge of probate against the defendant upon the bond, she would have had no valid defence ; and if such an action would lie, it is plain that the present is maintainable, inasmuch as the surety who has paid the debt stands in the place of obligee. Wright v. Morley, 11 Ves. 22; Hayes v. Ward, 4 Johns. Ch. R. 123 ; Clason v. Morris, 10 Johns. R. 524. By the breach of the condition of this bond the penalty became a joint debt to the judge of probate ; 5 Bac. Abr. 156, Obligation, A ; and in the case of a joint contract the sureties have a remedy against either principal for the whole money paid by them. Duncan v. Keifer, 3 Binn. 126.</p> <p>It was also contended on the part of the plaintiff, that Clark, if not liable as principal, must at least be considered as a co-surety for Winship’s faithful administration.</p>

Assumpsit for money had and received. Upon a case stated it appeared, that on the 26th of July, 1826, the Suffolk bank, being the holders of bank notes, in common form, to the amount of 48,000 dollars, which had been previously issued by the Worcester bank, presented the same by their agent, in banking hours, at the Worcester hank m Worcester, and demanded payment.

This was a writ of entry, in which the demandants counted upon their own seisin of one sixth part of certain land, and a disseisin by the tenant.

Trover for certain merchandise. On a case agreed by the parties it appeared, that the mer vessel was unladen. B. H. Scott, public-store-keeper. 1 hold the above' described twenty-three cases silks subject to order of James Dennie Esq. dep. sheriff.

<p>Assumpsit for rent of a ropewalk, from the 1st of January, 1825, to the 6th of May following. Plea, the general issue.</p> <p>The parties agreed upon a statement of facts, by which it appeared that the plaintiff, in 1820, being owner of the ropewalk and of the land under it, leased the whole to the defendants for one year, at a rent of 1200 dollars. They held over at the same rent till 1823, when it was reduced to 1100 a year; and they continued to occupy until May 6, 1825, when the building was removed. They paid rent to the plaintiff, at the rate last mentioned, up to January 1, 1825.</p> <p>On the 25th of February, 1824, an agreement was made between the plaintiff and the city of Boston, for the sale of the land lo the city, by which agreement referees were chosen to determine it' ialue; and in order to insure the performance of the award, the plaintiff executed a deed, bearing date of the same 25th of February, .and placed it in the hands of the referees, to be delivered with the award to the city. It was also agreed that the building should belong to the plaintiff, and should be removed by him by the 1 st of August then next ensuing, and that the referees should award what rent should be paid by him for the occupation of the land until the building should be removed. The parties bound themselves in the penal sum of 10,000 dollars to fulfil their respective agreements.</p> <p>On the 21st of May, 1824, the referees made their award, determining the value of the plaintiff’s title to be 9000 dollars, and delivered his deed to the city ; and they awarded that he should pay to the city 50 dollars for the use of the land from that day till the 1st of August. The deed was recorded on the same 21st of May. To this award the plaintiff excepted, and still continued to except, having refused to receive the sum of 9000 dollars, which was duly tendered to him, and having tendered the penalty of 10,000 dollars, denying that his estate passed by the deed.</p> <p>On the 1st of August, the defendants being desirous to continue their occupation, the plaintiff consented to it upon their promise to pay him rent as they theretofore had done, and at the same time he agreed to hold them harmless against any claim which the city should make for rent, — the mayor having required them to quit the premises on or about the 1st of August, informing them that if they remained, the city would exact rent of them ; and on the 1st of January, 1825, when they paid the rent then due, the plaintiff, in his written receipt therefor, included a promise to indemnify them against the claims of the city. No notice was ever given to the plaintiff, nor any demand made upon him by the city, to remove the building. The defendants afterwards paid to the city the rent from August 1, 1824, to May 6, 1825, upon receiving a guaranty against all claims that should be made by the plaintiff.</p> <p>According as the opinion of the Court should be upon the foregoing facts, the plaintiff was to be nonsuit, or the defendants defaulted.</p>

This was an action of trespass quare clausum fregit, in which the plaintiff alleged his title to a parcel of land or flats in Boston, bounded south on a line parallel to the solid part of the north side of the long wharf and 24 feet distant therefrom, measuring on this line 200 feet; east on the neck oi the T wharf, there measuring 30 feet; north by a line parallel with the line first mentioned and 30 feet distant therefrom, measuring on this line 200 feet; -ivest by the…

This was an action of formedon in remainder. Plea, the general issue. The tenants prayed that the increased value of the demanded premises by reason of their buildings and improvements, might be determined, and the demandant, that the jury might decide what would have been the value had no such buildings or improvements been made by the tenants.

<p>A legal assignment of dower is not necessary, to enable the widow of a moitgager to maintain a bill in equity to redeem.</p> <p>This Court has authority, under St. 1798, c. 77, to sustain such bill.</p> <p>The administrator of an insolvent estate is not bound, nor has he a right, for the benefit of the widow and heirs, to apply the personal assets to the redemption of a mortgage made by the intestate; the creditors’ lien on the personal estate being paramount to their claims.</p> <p>Where upon the purchase of an equity of redemption from the administrator of the mortgager, the purchaser gave a bond to the administrator to pay the debt secured by the mortgage, and afterwards did pay the debt, taking an assignment of the mortgage, it was held, upon a bill to redeem brought by the mortgager’s widow, that she could take no advantage of the bond, either by estoppel or otherwise, she not being a party to it.</p> <p>Where one being in possession under a deed of an equity of redemption, afterwards makes an entry and holds possession three years as assignee of the mortgagee, without notice to the widow of the mortgager, her right to redeem will not be foreclosed.</p> <p>Where the purchaser of an equity of redemption pays the mortgage debt and takes an assignment of the mortgage, the widow of the mortgager is not entitled to redeem except upon paying the whole debt secured by the mortgage.</p> <p>Where one claiming under the mortgager redeems, the widow of the mortgager will be let in by contributing her portion of the mortgage debt, according to the value of her life estate in one third part of the mortgaged premises.</p> <p>A motion to vary the minutes of a decree in chancery may be received at any time oefore a final decree is made and recorded.</p> <p>Whether a party shall be allowed to argue a point on such a motion, depends on the discretion of the Court.</p> <p>The owner of land makes a mortgage, his wife releasing her right of dower, and dies; the defendant purchases of the administrator the equity of redemption, and takes possession; he afterwards pays the debt and takes an assignment of the mortgage, and at a subsequent period declares that he holds for the purpose of foreclosing. On a bill in equity to redeem brought by the widow, who had no notice of the attempt to foreclose, it was held, that she might elect to consider the defendant in possession under the mortgage from the time of his taking the assignment, and that he should account for the rents and profits from that time.</p> <p>Por previous rents and profits he is not liable in any action, no demand of dower having been made upon him before that time, and tire statute of 1816, c. 84, entitling a widow to rents and profits until her dower shall be assigned, being intended to give her a remedy only against the heirs of her husband. Semble.</p> <p>Upon a bill to redeem against the assignee of a mortgage, where the rents and profits were considerable and the interest of the debt wa* movable semiannually, it was decreed that interest should be computed upon the rent» and profits, making semiannual rests.</p> <p>Such assignee was allowed a commission of five per cent, on the rents received, as a compensation for his cure and trouble in collecting the rents and managing tint estate.</p>

<p>Under a grant of a right of way across tne plaintiff’s lot of land, the grantee has not a right to enter at one place, go partly across, and then come out at another place on the same side of the lot; and parol evidence to show that such was the intention of the grant is inadmissible.</p> <p>Held also, that dragging timber from the grantee’s wood lot upon the plaintiff’s land, for the purpose of turning it round, was a misuser of the right of way.</p>

The qui tam action was on the 1st and 3d sections of St. 1785, c. 24, for the suppression of lotteries. The first count was for disposing, by way of lottery, of a wagon belonging to one Bunker. The other action was debt upon St. 1817, c. 191, § 1, 5.

<p>Where the return day of an execution levied on land falls within the time allowed bj law for recording the execution in the registry of deeds, if the officer does not either cause it to be duty recorded, or return it into the clerk’s office on or before tlie return day, or deliver it to the creditor in season to be put upon record, he will be liable to the creditor for the value of the land lost by his neglect.</p> <p>The title of a creditor who attaches and levies on land, but does not get his execution recorded in the registry of deeds until after three months from the levy, is invalid against a creditor who obtains a title to the same land by attachment and levy, or by deed, between the first creditor’s attachment and the registry of his execution.</p> <p>Where land is attached under one description and levied on under another, parol evidence is admissible, on a question of title, to shqw that both descriptions refer to the same land.</p>

<p>Case for obstructing and diverting a watercourse. At the trial, before Howe J., in the Court of Common Pleas, it appeared that twenty years ago the defendant and the grantor of the plaintiff were tenants in common of the land through which the stream flowed; that about eighteen years ago the land was divided between the then tenants, soon after which one of them conveyed to the plaintiff. In March 1825 the defendant erected a dam across the stream and opened a ditch above the dam, whereby a large portion of the water which before that time had been accustomed to floxv through the defendant’s land and pass on to the land of the plaintiff, was wholly diverted therefrom. The defendant contended, that he took by the erection of the dam no larger portion of the water than he was in the enjoyment of when the land was divided ; and that if he did, he took no more than was useful to him for the purpose of irrigating his lands, and that he had a right to all that was necessary for this purpose, although he might thereby deprive the plaintiff of a portion of the water he had before used for the same purpose. It did not appear that the plaintiff had ever appropriated the water in any other way than for irrigating his land. The jury were instructed, that each of the parties had a right to the enjoyment of the water in the same way and in the same proportions that it was .enjoyed when the land was divided ; that if the defendant had taken a larger portion of the water than he then enjoyed, and the plaintiff was injured thereby, the action was sustained, and the defendant’s having diverted it for the purposes of irrigation would form no justification of his conduct. The jury found a verdict for the plaintiff, and the defendant filed exceptions to the instruction of the judge.</p>

<p>Upon a process of foreign attachment the supposed trustee made answer, that before the service of the writ upon him, he was requested by one Peirsons to obtain security on a promissory note made by the principal defendant to Peirsons, which was then due ; that the respondent accordingly went to the house of the debtor, who had left the State on account of his embarrassment by debt, and the wife of the debtor delivered to him, as the agent of Peirsons, certain furniture in pledge for the payment of the note, — which de livery and pledge were immediately assented to by one Lane-ton, who said he was the attorney of the debtor and was authorized to assist him in the settlement of all his affairs, but that he had no written power of attorney ; and that on the same day, and while he had the furniture at his own house and in his custody as agent of Peirsons, he was served with the trustee process, and on the next day, agreeably to a permission given at the time of making the pledge, the furniture was attached and taken out of his hands by virtue of a writ which he procured in favor of Peirsons upon the note above mentioned ; — which was for a larger sum than the value oí the furniture in question.</p>

<p>The demandant in a writ of entry counted upon his seisin in mortgage and gave in evidence a paper, on one side of which was a deed apparently absolute, dated and duly executed, and on the other side a writing in the usual form of a condition to mortgage, without date, signature, or seal. Held, that this condition was a part of the deed.2</p>

<p>Upon a trial in court, of a complaint against a mill-owner for overflowing the complainant’s land on a particular day and on divers days before and after until the date of the complaint, the evidence must be confined to damage done within the period specified. Semble,</p> <p>Upon such trial, the jury, in determining whether any damage was done to the land, may take into view any benefit derived from the overflowing.</p>

These were actions of trover. Upon a case stated it appeared, that on the 21st of July, 1825, John Foster died intestate, seised and possessed of real and personal estate, leaving a widow, and six minor children of from six to eighteen years of age.

<p>A plea of tender of rent after the day of its falling due, is insufficient; and after a verdict on such plea in favor of the defendant, the plaintiff is entitled to judgment non obstante veredicto.</p> <p>A rule of court operates prospectively only. — Thus, a motion that the plaintiff take money tendered after the day when it fell due and pay the defendant his costs, was disallowed, no rule of court permitting such course of proceeding having been promulgated.</p> <p>Where both parties filed exceptions and the plaintiff prevailed upon the defendant’s exceptions and waived his own, the defendant was not allowed costs upon the plaintiff’s exceptions.</p>

<p>Action of waste. Plea, no waste. The declaration alleged a devise to the defendant of a farm containing about 214 acres, one half in fee and the other half for her life, and set forth waste in divers parcels of the land. The jury returned a general verdict that the defendant had committed waste, and assessed damages in a certain sum. It was moved in arrest of judgment, that the verdict did not specify the particular places in which the waste had been committed, so that there could be no judgment for the plaintiff to recover the places wasted ; Greene v. Cole, 2 Wms’s Saund. 250, note 6 ; anu the Court held, that the finding was not sufficient to sustain a judgment of forfeiture ; *,1 but a new trial was granted, because the jury were instructed that the defendant was answer able only for her own waste, and not for waste committed by a stranger, the case of Fay v. Brewer, 3 Pick. 203, not having been adverted to at the trial.</p>

<p>Where the defendant obtained possession of divers promissory notes without a legal transfer from the owner, and received payment of some of them more than six years, and of others within six years, next before the commencement of the action, it was held, that he was liable in assumpsit for the sums received within the six years, and that he was estopped to say that the notes were obtained by fraud and eo an action of trover would have been barred by the statute.</p>

<p>This was an indictment for a nuisance by erecting a dam aciMss the Connecticut river between Northampton and South Hadley. The indictment alleged that the river, at that part of it, was a public river, and that by the dam the passage of boats, rafts, &c., up and down the river had been impeded, and the passage of salmon, shad and alewives, which from time immemorial had passed up the river to cast their spawn, had been obstructed, and the adjacent meadows had been covered with stagnant water, whereby the health and lives of the citizens inhabiting in the neighbourhood were endangered.</p> <p>At the trial, before Wilde J., the defendant objected, that this being an indictment at common law, the dam could not be considered as a nuisance on account of the obstruction to the passage of the fish ; but the judge, for the purpose of reserving the question for the whole Court, instructed the jury that they might find a verdict against the defendant, if they should be of opinion that the fish were obstructed in their passage up and down the river, although they should be satisfied that the dam was no obstruction to the passage of boats, &c., and did not endanger the health of the citizens living in the vicinity.</p> <p>The jury returned a verdict against the defendant, and stated that they found, from the evidence, that the dam was no obstruction to the passage of boats, and that it did not endanger the health of the citizens, but that it was an obstruc tion to the nassage of the fish.</p>

<p>Assumpsit. The writ was indorsed as follows : — “ B. Brainard, attorney for E. Purple.” The ad damnum was laid at 1500 dollars. The action was entered in the Court of Common Pleas for the county of Franklin at April term 1826, and thence continued, with a saving of all advantages to the defendants, to the August term. At that term the defendants moved that the action might be dismissed for want of an indorser. The plaintiff then filed a motion, stating that the action ought not to be dismissed, for that the writ was legally indorsed, but asking leave to have an additional indorsement made. This motion was overruled, and the action was dismissed. The plaintiff appealed to this Court, to be held for the county of Franklin in September 1826. On the first day of that term, the defendants moved that the appeal be dismissed ; which motion was overruled. The defendants then moved that the action be dismissed for want of an indorser of the writ. This motion likewise was overruled. The defendants excepted to these decisions, and the questions thereupon were reserved for the opinion of the whole Court.</p>

<p>Augustus Lyman represented to the judge of probate for the county of Franklin, that by the last will of George Arms he was entitled to nine thirty-second parts of a tract of land described in the will ; and that it was agreed among the devisees, that Pliny Arms should have a portion of this land, and in consequence he conveyed to P. Arms two of his nine parts; and he prayed that a committee might be appointed to set off to him in severalty his remaining seven parts. The judge decreed that a division of the land should be made among the devisees, according to the will, and appointed a committee to make the division.</p> <p>From this decree Solomon Williams and Pliny Arms, be ing interested in the estate of the testator, appealed for the following reasons : —</p> <p>1. Because the judge of probate had no jurisdiction of the subject matter of the petition ; —</p> <p>2. Because the decree is not in pursuance of the prayer of the petition , —</p> <p>3. Because neither the names nor the proportions of the devisees, except the appellee, are stated in the petition ; —</p> <p>4. Because although by the petition it appears that Pliny Arms is interested in the estate, and although the decree is</p> <p>for a division of the whole of the estate, yet no provision is made for setting off to him his share ; — and</p> <p>5. Because the estate will be more valuable if held in common, than if it is divided.</p>

<p>% «Tit of error lies on a judgment of the Court of Common Pleas, rendered on the .«port of referees under a submission entered into before a justice of the peace, paisuant to St. 1786, c 21.</p> <p>S nil .«ierees, under a submission of all demands between the plaintiff and the adminibhator of his deceased partner, awarded to the administrator a certain sum, and th«n toe plaintiff should have and retain all the property of the firm. Upon error in law assigned, the Court held that they could not infer from the record that the plaintiff was charged by the referees with the value of this property.</p> <p>Held also, that the plaintiff could not maintain a writ of error, because the referees had taken into wnsideration his demand against a third person, in reduction of the administrate.1* ciaim, the error being in the plaintiff’s favor.</p>

<p>A verdict will not be set aside on the ground that improper evidence was admitted and commented on by the judge, if no objection to its admission was made at the trial.</p> <p>The deed of a person non compos mentis not under guardianship conveys a seisin, it being voidable only, and not void. But the deed of a person non compos mentis under guardianship is void.</p>

<p>Plea in abatement — that the writ, at the time when it was put into the officer’s hands for service, and at the time when it was served, by attaching the property of the defendant, contained no count or declaration, nor was there any cause of action in any way or manner set forth—held sufficient on special demurrer.</p>

Assumpsit upon a promissory note made by the defendant to Salmon Graves for 550 dollars, payable on demand with interest, dated December 24, 1818, and indorsed to the plaintiff. Pleas, the general issue and the statute of limitations.

<p>This was an action of debt upon a bond made by R. Leonard, J. Day, and E. Purple, to the plaintiff, as a coroner, upon his serving a writ of replevin sued out by Leonard and Day against A. Hill. The condition was, that Leonard and Day should prosecute the writ of replevin to final judgment, and should pay all such damages as Hill should recover against them, and should return the chattels replevied, in case &c. The "defendants, after oyer of the bond and condition, demurred generally to the declaration.</p>

<p>When one subscribes with others a sum of money to carry on some common project, lawful in itself and supposed to be beneficial to the projectors, and money is advanced upon the faith of such subscription, an action for money paid may be maintained against a subscriber for the amount of his subscription, or such portion of it as may be equal to his proportion of the expense incurred.</p> <p>Where a first meeting of such subscribers was held, and the plaintiff was appointed agent of the company, and, in pursuance of authority then given him, he expended money for the purpose of the subscription, and the defendant, one of the sub scribers, afterwards offered to pay the amount of his subscription, if the plaintiff would receive payment in a specific article, and also declared to a third person, that he should have paid, if he had not been ill treated by the plaintiff, it was considered that the defendant had waived any objection from the want of notice to attend the meeting, and had recognised his original engagement as still subsisting; and he was held liable to pay his proportion of the sum subscribed.</p>

<p>Trespass for breaking and entering the plaintiffs’ close, called the mill lot, and destroying their mill dam standing in and extending across Agawam river, by reason whereof the water was diverted from their grist-mill.</p> <p>In support of their action, the plaintiffs exhibited their title to the mill lot and stream of water. The mill lot and mill stream were on the northern side of the river. The dam extended across. The plaintiffs offered to prove that the defendants came to the river, below the mill; that thirteen of them went across the river to the south side, and pulled up about a hundred feet of the dam south "of the thread of the river, and then returned to the side on which the mill stood ; that they then went up tó and about the mill, and that one of</p> <p>the defendants, who did not cross the river, stood on the mill lot while the otheis were pulling up the dam, and gave directions to them when to desist. The defendants objected to evidence of the destruction of any part of the dam south of the thread of the river, because it was not contained in the description in the plaintiffs’ declaration, nor in the original grant from the town of Springfield of the mill lot and the stream. And Morton J., who tried the cause, ruled accord ingly. If this direction was wrong, a new ti ll was to be granted</p> <p>The jury returned a verdict for the plaintiffs for nominal damages only, for the entry of the defendants on the north side of the river.</p>

<p>By articles of copartnership it was agreed, that any partner might assign his share of the stock by a certificate in writing, which when lodged with the clerk of the company should entitle the assignee to all die privileges and subject him to all the liabilities of an original partner. Held, that an assignment without such certifisate would nevertheless transfer the property.</p> <p>The assignor of a share, in an action against the assignee, declares that in consideration of the assignment, the assignee promised to pay all arrearages due on the share, but proves a promise to pay the arrearages and also what he had paid to the company. Heidi that the variance was not material, being injurious to the plaintiff alone.</p> <p>A partner sold his share to two individuals, and afterwards, at their joint request, made his certificate to one of them. Held, that the certificate was not the sale, nor the essential evidence of it, and that'parol evidence was admissible to show that the sale was made to both.</p>

This was an action brought to recover taxes assessed upon Adam Johnson and his estate.

<p>Writ of right. The tenant pleaded in bar, that he was not tenant as of freehold ; but that one Holcomb was “ seised ” of a part of the messuage demanded, and demised the same to the tenant to be held by him as tenant at will, by virtue whereof he entered and became possessed as tenant at will; and that one E. Brown and one H. Brown were seised of the residue of the messuage in their demesne as of fee, and demised the same to the tenant to be held by him as tenant at will, &c.</p> <p>The demandant demurred, first, because the plea was m bar and not in abatement; and secondly, because it did not allege of what estate Holcomb was seised, nor whether he was seised by right or by wrong, nor that he bad a freehold in the land described in the plea.</p>

<p>Writ of entry. The demandant declared upon his seisin in fee and in mortgage and a disseisin by the tenant.</p> <p>The tenant pleaded, first, nul disseisin.</p> <p>Secondly, that Nathaniel Maynard,- the mortgager, assigned the premises to the tenant with warranty against all incumbrances, and that the. tenant, after condition broken but before the action was brought, tendered 400 dollars for the discharge of the mortgage. The demandant took issue on the tender.</p> <p>Thirdly, that in consideration that the tenant would forbear to make the tender, the demandant promised that the tenant should hold the land discharged of the mortgage and that he (the demandant) would resort to Nathaniel Maynard for pay ment of the note which ivas secured by the mortgage. Issue was taken on this plea.</p> <p>Fourthly, a plea like the second, except that it alleged tender of 450 dollars. Issue was taken on the tender.</p> <p>The cause was tried before Putnam J., and a verdict was found for the tenant upon all the issues.</p> <p>The demandant thereupon moved in arrest of judgment, because the three last issues were immaterial, and the first issue was found only for form’s sake and as a consequence of the finding on the other issues.</p> <p>He further moved, that if any of those three issues should be adjudged material, the Court would grant a new trial, because no evidence had been introduced sufficient or proper to maintain either of them on the part of the tenant, and because all the evidence in the case, the three last pleas, and the admissions of the tenant’s counsel, showed that the finding of the first issue for t ie tenant was a consequence of finding the other issues in his favor, and that if that issue had stood alone, it would have been found for the demandant.</p> <p>At the trial J. W. Hunt, the brother of the tenant, testi fied, that at the tenant’s request, he ca'led on the demandant and inquired how much was due upon the note. The demandant replied 400 dollars. The witness asked him if he intended to call upon the tenant for the land, if Nathaniel Maynard (who was the demandant’s son) should be unable to pay the note. He answered in the affirmative. The witness said he would pay him 400 dollars ; that he came for the purpose of settling with him ; that he had the money with him in bank bills, and that he would get the specie if it would make any difference. The demandant said it would not. He also said that if he took the money, the tenant would immediately sue Nathaniel. The witness told him he could expect nothing else. The demandant then said he would not take the money ; he would, rather it should lie as it was on interest ; he was secure ; but he assured the witness that his brother should not be hurt.</p> <p>The question whether this evidence was sufficient to warrant the finding of the jury, was reserved for the determinatiozi of the whole Court.</p> <p>Neioton and Grennell, for the demandant, were stopped by the Court.</p>

<p>This was an action for slander, in charging the plaintiff with being a liar, a knave and a rascal. The defendant admitted the speaking of the words, and filed several pleas in justification alleging the words to be true. The plaintiff put in a general replication of de injuria suá.</p> <p>At the trial, before Wilde J., it was admitted that the plaintiff was a clergyman, and the trial proceeded upon the pleas in justification. The plaintiff then introduced evidence of his good character; which evidence was objected to on the part of the defendant.</p> <p>In relation to the charge of being a knave, the judge ruled that the term knave implies one who has been guilty of dishonest acts ; that the charge was in itself actionable ; and that if the defendant did not prove dishonest acts on the part of the plaintiff, the jury must give damages for that charge. To this opinion the defendant objected.</p> <p>It was contended on the part of the defendant, that the jury should return their verdict merely as to the truth of the facts set forth m the several special pleas of justification ; but the judge ruled that the jury should return a verdict for the plaintiff, unless the evidence offered satisfied them that the defendant had proved the plaintiff guilty of the charges as set forth in the declaration.</p> <p>These questions were reserved for the consideration of the whole Court.</p> <p>In the tenth plea in justification, the defendant sets forth, “ that the plaintiff told one Clark Thompson, that he had received a letter or papers respecting the medical character of Dr. Brooks (the defendant) from a person who put M. D. to his name, but he had ascertained he had no right to those letters, for he was nothing but a quack; ” and the defendant avers that this was false.</p> <p>To support this plea the defendant offered Thompson as a witness ; who testified that he told the plaintiff “ that Brooks said he (the plaintiff) had seen the evidence oí his qualifications as a physician ; and that the plaintiff replied that he had received a recommendation from one who signed M. D. to his name, but he had ascertained he had no right to it, and if he had no right to it, he was nothing more, than a quack.” The witness said this was as he understood it, though he might be incorrect. The defendant proved that N. Smith, the author of the communication above mentioned, had previously received the degree of doctor of medicine. The plaintiff offered no evidence to contradict the testimony or impeach the character of Thompson.</p> <p>Upon this plea and this evidence the jury returned a verdict for the plaintiff, and the defendant moved for a new trial because this finding was against evidence.</p>

<p>An indenture of apprenticeship entered into by overseers of the poor, which does not contain a provision for the instruction of the minor in reading, &c., pursuant to St* 1793, c* 59, § 4, is void in regard to all the parties.</p> <p>. An indenture by which selectmen and overseers bound a minor over fourteen years of age as an apprentice, (instead of the minor’s binding himself,) and in which it was not stated that he had no father, mother or guardian within the common» wealth, was held not to be within St* 1794, c. 64, § 1.</p> <p>Where a stranger, having no authority over a minor, undertakes to bind him as an apprentice, and covenants for his faithful service, the contract is not valid at common law as to either of the parties.</p>

<p>An action on the case for diverting a water course dies with the plaintiff.</p>

<p>This was a bill in equity brought by subsequent mortgagees to redeem the land from two prior mortgages, and to compel the prior mortgagee to release the two first mortgages.</p> <p>In the hearing, before Morton J., the following facts appeared.</p> <p>On the 24th of April, 1821, Joseph Winship gave to the defendant two promissory notes for 300 dollars each, one payable in three, the other in six years, with interest annually. On the 14th of June, 1821, J. Winship made his mortgage deed to the defendant, to secure the payment of the two notes according to their tenor.</p> <p>On the 11th of February, 1822, J. Winship made a second mortgage, to one Carew, to secure him for his liability as surety on a note given by J. Winship to one Pynchon. On the 28th of September, 1824, Carew assigned this mortgage to the defendant, there being then due upon the note to Pynchon about 200 dollars, which the defendant paid to Pynchon, the residue of the note having been paid by J. Winship.</p> <p>On the 16th of June, 1823, J. Winship made a third mortgage to Carew and the two plaintiffs, to secure Carew</p> <p>and D. Winship for their liability as sureties upon a note given by J. Winship to the Hartford bank, and Carsw for his liability as surety upon a note given by J. Winship to the Springfield bank, and to secure the payment of a note given by J. Winship to D. Winship for 568 dollars, and another note given by J. Winship to Saunders for about 556 dollars. On the 20th of September, 1825, Carew assigned to the defendant all his interest in this third mortgage. On the 28th of October, 1823, Carew paid 75 dollars upon the note to the Hartford bank, the residue of which was paid by D. Winship. The note to the Springfield bank, dated June 11th, 1823, for 300 dollars, payable in 57 days, was wholly paid by Carew. On the 19th of January, 1824, J. Winship repaid Carew about 18 dollars. Since the commencement of this suit, viz. on the 31st of May, 1826, J. Winship conveyed to the plaintiffs all his remaining interest in the mortgaged premises.</p> <p>On the 5lh of August, 1823, the interest on the two notes first mentioned not having been paid, the defendant took possession of the premises for condition broken, and continued in possession to the time of the commencement of this suit. During that period the rents and profits received by him, exclusive of one quarter’s rent (15 dollars) which the tenant absconded without paying, amounted to about 266 dollars, and the repairs, including 6 dollars"75 cents paid for insurance of the premises and 6 dollars 62 cents paid for making an aqueduct for the accommodation of the house, there being no well, amounted to about 50 dollars.</p> <p>On the 26th of April, 1826, the plaintiffs tendered to the defendant 800 dollars, to redeem the premises from the two first mortgages.</p> <p>Upon the foregoing facts, such order or decree was to be passed, as in the opinion of the whole Court justice might require.</p> <p>The case was argued very fully, first at the bar, at .September term 1826, and afterwards in writing, by Bliss junior, for the plaintiffs, and Willard, for the defendant.</p> <p>The defendant contended that the suit could not be sus tained ; —</p> <p>1. Because two tenants in common cannot join in a real action. Rehoboth v. Hunt, 1 Pick. 224; Lit. § 311, 312.— The plaintiffs answered that the suit was not in the nature of a real action, and was not to be -trammelled by the technical rules by which real actions are governed; Lit. § 312 ; Stearns on Real Actions, 198, 199 ; Penniman v. Hollis, 13 Mass. R. 430; Parsons v. Welles, 17 Mass. R. 427; that the plaintiffs could not properly sever; that the joinder was not injurious to the defendant; and that it was beneficial to the plaintiffs, in preventing an action between them for contribution. Co. Lit. 198 ; Weller v. Baker, 2 Wils. 423 ; Somev. Barwish, Cro. Jac. 231 ; Taylor v. Porter, 7 Mass. R. 355.</p> <p>2. Because one of the two notes first mentioned had not become due, and the defendant ought not to be compelled to receive his money before it was due, and release the two first mortgages, as requested by the plaintiffs when they made the tender. The mortgager voluntarily pledged his estate upon the conditions in the first mortgage, and if he had paid the interest punctually, or tendered it within three years after the defendant’s entry, there could have been no foreclosure. The plaintiffs did not offer to pay the interest alone, but they tendered a large sum to redeem the land, and the defendant rightfully refused to receive it, part of it not being then payable. They should have tendered only the sum which was due, and have waited till the rest of the debt became payable, before they brought their bill to redeem. The defendant must be considered as in possession under his general right as mortgagee, as well as for the breach of one of the conditions. Colman v. Packard, 16 Mass. R. 39 ; Wilder v. Houghton, 1 Pick 89; Perkins v. Pitts, 11 Mass. R. 130. The plaintiffs pray for seisin and possession, and this is the judgment pointed out by St. 1798, c. 77, under which this bill is brought; and it is the only judgment which the Court have power to render ; but such a judgment would be manifestly unjust, so long as any sum secured by the mortgage remains unpaid. Taylor v. Townsend, 6 Mass. R. 264, 269. The cases of a constructive levy of a writ of possession, notwithstanding the tenant has a right to possession, are where the judgment is against some other person than the tenant; and in some instances the authority to levy is given expressly ny statute. — To this the plaintiffs answered, that the question was not whether the defendant could be compelled to receive the amount of his second note before it became payable, but whether the plaintiffs could, by any proceedings had before that note fell due, prevent a foreclosure. The defendant having given no notice that he held on any other account than for a breach of the condition to pay interest, he must be considered as in possession for that cause alone, and it certainly is equitable, that upon a tender of all the sums due upon the notes secured by the two first mortgages, the plaintiffs should have a bill to redeem. The condition for the payment of interest was in fact performed by the receipt of the rents soon after the defendant entered. Tirrell v. Merrill, 17 Mass. R..117. The plaintiffs could not tender the interest due and then wait till the principal became due, before they brought their bill, for by St. 1821, c. 85, § 3, the bill must be brought within one year after the tender. If the defendant can be considered as holding under the two distinct rights of possession of a mortgagee, 'the plaintiffs may consistently have a decree to redeem from the possession for condition broken, and may levy an execution for possession, without disturbing the defendant’s possession for the sum not yet due. Perley v. Chandler, 6 Mass. R. 456 ; Williams v. Amory, 14 Mass. R. 20; Penniman v. Hollis, 13 Mass. R. 429.</p> <p>3. Because the defendant had a right to apply the rents and profits,, at least those which were received after the assignment of the third mortgage, to the extinguishment of his debt secured by that mortgage ; for a subsequent mortgagee may have the rents and profits with the consent of the prior mortgagee. Newall v. Wright, 3 Mass. R. 138 ; Goodwin v. Richardson, 11 Mass. R. 474. — To this the plaintiffs answered, that the defendant had no further rights under the third mortgage than his assignor Carew had; Hills v. Eliot, 12 Mass. R. 26 ; Warden v. Adams, 15 Mass. R. 243; Brigham v. Eveleth, 9 Mass. R. 542; Sargent v. Parsons, 12 Mass. R 152 ; that he must apply the rents and profits to the extinguishment of the mortgage under which he held pos</p> <p>session ; that he was not in possession under the third mortgage, at least not adversely to the plaintiffs,, the possession of one tenant in common being the possession of all; and that a mesne incumbrancer may insist upon the rents received-by a prior mortgagee being applied to the prior mortgage. Robinson v. Cumming, 2 Atk. 410 ; Gould v. Tancred, ibid. 534 ; Ld. Penrlvyn v. Hughes, 5 Ves. 99 ; Tracy v. Hereford, 2 Bro. C. C. 128 ; Sherlock v. Lowe, cited in Irish T. R. 604 ; Newall v. Wright, 3 Mass. R. 154 ; Coppring v. Cooke, 1 Vern. 270 ; Bentham v. Haincourt, Prec. Ch. 30.</p> <p>4. Because the plaintiffs were bound to tender enough to redeem the three mortgages, before they could compel the defendant to release.— The plaintiffs, on the contrary, contended that the defendant, as tenant in common with them in the third mortgage, should aid them in redeeming the two first mortgages ; and that the Court would effect this by deducting from the sum to be paid by the plaintiffs such a' proportion as the defendant’s interest in the third mortgage bore to that of the plaintiffs. Deering v. Earl of Winchelsea, 2 Bos. & Pul. 270 ; Taylor v. Porter, 7 Mass. R. 358 ; Campbell v. Mesier, 4 Johns. Ch. R. 339 ; Lawrence v. Cornell, ibid. 345 ; Cheesebrough v. Millard, 1 Johns. Ch. R. 409 ; Stevens v. Cooper, ibid. 425.</p> <p>In case the suit were maintained, the defendant claimed allowance under the head of “ repairs and improvements,” (St. 1821, c. 85, § 1,) of 6 dollars 62 cents for making an aqueduct on the mortgaged premises. The plaintiffs objected, and cited Russell v. Blake, 2 Pick. 506, [2d edit. 505, 506, 507, notes ;] Godfrey v. Watson, 3 Atk. 517 ; Moore v. Cable, 1 Johns. Ch. R. 385 ; Bonithon v. Hockmore, 1 Vern. 316.</p> <p>The defendant also claimed allowance of a charge of 6 dollars 75 cents paid by him for insuring the premises against loss by fire, contending that in case of a loss the mortgager and his assigns would have the benefit of the sum paid by the underwriter, which would be applied to the mortgage debt. This was controverted by the plaintiffs.</p> <p>The plaintiffs contended that the defendant was responsible for the quarter’s rent remaining due from the tenant who ab-</p> <p>sconded. St. 1785, c. 22, § 2. He was guilty of gross negligence in not taking adequate security. — The defendant cited contra, Powell on Mortg. 1028, 1029.</p> <p>The defendant, in his account, stated his debt with interest, making annual rests, and the rents and profits without any interest. St. 1785, c. 22, § 2. But the plaintiffs contended that interest upon interest could not be allowed, and that the rents and profits should be applied, as they accrued, to the principal and interest of the debt. Howard v. Harris, 1 Vern. 194; Davis v. Higford, 1 Ch. R. 28 ; Com. Dig. Chancery, 3 S. 4 ; Ex parte Champion, 3 Bro. C. C. 440; 1 Mad Ch. Pr. 427 ; Dighy v. Craggs, Ambl. 612; St. 1808, c. 98, §3.</p>

<p>The plaintiff in a bill in equity to redeem sets out the mortgage, an entry by the de fendant after part of the sum secured had become due, and a tender, and prays tc be restored to his title and possession; and pending the suit, he brings another similar bill, but stating an additional tender made after the whole sum had become due. To this bill the defendant pleads the pendency of a former suit for the same matter, and the plea is sustained with costs for the defendant.</p> <p>Held also, that the new right acquired by the plaintiff while the first suit was pend* ing, was proper matter for a supplemental bill, but not for an original bill.</p>

<p>Indictment for forging a promissory note according to the “purport and effect following, I promise” 8fc, instead of I promised» Hdd an immaterial variance. The fact of forging a note within a county cannot be inferred from its having been uttered therein.</p>

<p>Writ of entry. The demandant claimed by'virtue of an attachment and extent upon the land as belonging to James W. Jenkins.</p> <p>In October 1823 Alpheus Plumer, then the owner and in possession of the land, mortgaged it to James W. Jenkins to secure a note for about 1200 dollars. In May 1824 James assigned the note and mortgage to Joseph Jenkins, the tenant. The deed of assignment was not recorded until the day of the trial of this action. In May 1825 Plumer executed and delivered to James a deed of the land, in which it was stated that the land was under a mortgage to him for 1200 dollars, and in the covenant against incumbrances the mortgage was excepted. The demandant’s attachment on the land was made in March 1826.</p> <p>The tenant contended at the trial, that there was no title m James which could support the extent, because, being mortgagee and his interest legally assigned, he could take nothing by the subsequent deed except the mortgager’s right to redeem, which could not be extended upon and appraised, in the mode pursued by the demandant.</p> <p>If upon these facts the demandant could not maintain the action, he was to become nonsuit; but otherwise the action was to stand for trial.</p>

<p>This was a cross, bill in equity to redeem. The following facts were stated by the parties.</p> <p>On the 22d of January, 1816, Joseph Wyman mortgaged certain land to J. and L. Pond ; and on the 21st M August, 1820, he made a second mortgage to the same mortgagees</p> <p>Before the making of the second mortgage, the right of redeeming the first was attached at the suit of a creditor of the mortgager, and on the 6th of November, 1820, (the attachment remaining in force) was sold on execution to Luther Willson, to satisfy the judgment recovered in that suit. The right of redeeming the second mortgage was also attached at the suits of other creditors of the mortgager, before the right of redeeming the first mortgage had been sold, and on the 21st of May, 1821, (the attachments remaining in force) it was sold on execution to Bigelow, to satisfy the judgments recovered in those suits. On the 9th of January, 1821, the mortgager, by deed of quitclaim, conveyed his remaining interest in the land to Reed. On the 6th of March, 1821, Willson released and conveyed to Reed a portion of the land, in consideration of a release by Reed to Willson of the residue. The second mortgage was assigned by J. and L. Pond to Bigelow on the 6th of November, 1821. On the 21st of October, 1825, the sum supposed to be due to Bigelow was tendered to him by Reed.</p> <p>Bigelow brought his bill in equity against,Willson, to redeem the whole of the land, and by order of the Court, Reed was made a party to the bill; and in 1826, pending that suit, Reed brought this cross bill to redeem of Bigelow that part of the land which had been released by Willson.</p>

Assumpsit upon a promissory note, for goods sold and delivered, and for money had and received. The case came before the Court upon an agreed statement of facts.

This case was formerly submitted to the determination of the Court upon the report of referees, and a decision was made, as published in 4 Pick. 104.

<p>This was an action oi trespass brought by the Wolcott Woo len Manufacturing Company, and certain individuals doing business under the firm of the Columbian Manufacturing Company, against the defendant, for breaking and entering, on the 10th of August, 1825, into their close in Sturbridge, situated on both sides of the outlet of Watkins pond, and shutting down the plaintiffs’ gate in their dam, thereby preventing the water of the pond from running to the plaintiffs’ grist-mill and woollen and cotton mills, situated on Quinabaug river in Southbridge ; by reason of which the plaintiffs had suffered damage for want of sufficient water to drive their mills.</p> <p>The defendant pleads, that long before and on the 10th of August, 1825, he was possessed of an ancient mowing lot situated on both sides of a brook, flowing from Watkins pond to Quinabaug river, on which lot he, and those heretofore possessed of the same, have been accustomed to cut and make into hay large quantities of grass, which from year to year grew thereon, free from any flowing of the same, and that the grass being then ripe, &c., he cut a part of it, &c., and which was then lying on the lot, and not sufficiently made into hay to be carried off, and was cutting the remainder, &c., and the plaintiffs having recently erected a dam across the brook above the lot possessed by the defendant, and thereby raised a large pond of water, and having on the 10th of August raised the gate of their dam and thereby let down so much water as to overflow the mowing lot, so that the defendant could not make the grass into hay, &c., for the purpose of stopping the flow of the waters on and over the mowing lot, and of enabling himself to make the grass into hay, &c., he, on the 10th of August, entered ipon the prem ises of the plaintiffs and shut down the gate, &c.</p> <p>The plaintiffs, admitting the facts stated in the plea, reply, that on the 10th of August, and long before, they were the owners and occupants, in severalty, of two mills situated on Quinabaug river, about three miles below the ancient mowing lot of the defendant; that for the purpose of raising a suitable head of water for driving their mills, they, on the 31st day of December, 1822, purchased jointly, in fee simple, and have ever since been jointly seised and possessed of a tract of land in Sturbridge, about a quarter of a mile above the mowing lot; that on the same 31st of December, they erected upon this tract of land the dam and gate mentioned in their writ, by means of which a suitable head of water was raised for driving their mills; that for the purpose of using the water, they from time to time, and as often as occasion required, opened the gate, so that the water flowed down in sufficient quantities to drive their mills ; that on the 1 Oth of August, having occasion for the water reserved and collected by the dam and gate, for the purpose mentioned, and the same being a suitable and proper occasion for the use of the water for such purpose, they opened the gate, whereby the water flowed in the brook and over the ancient mowing field to the plaintiffs’ mills in such and no greater quantity than they had occasion to use in driving their mills to the best advantage ; and that on the 10th of August, while the water was so flowing for the purpose mentioned, the defendant entered, &c., and shut the gate, whereby the plaintiffs were prevented from using their head of water to the best advantage.</p>

<p>Case for slanderous words charging the plaintiff with theft.</p> <p>A justification was pleaded, without the general issue, and the whole defence was placed on the ground that the plaintiff was guilty of the theft of which the defendant had accused her.</p> <p>His counsel however contended, that from the facts proved which had a tendency to establish his plea, the jury ought to be satisfied that the words were spoken under a belief that they were true, and not maliciously ; but the Chief Justice instructed the jury, that if the defendant’s evidence failed to prove the guilt of the plaintiff, malice was necessarily to be inferred, and that the same facts could not be made use of in mitigation of damages.</p> <p>It appeared, after the jury had returned a verdict for the plaintiff, that two depositions, which had not been read on the trial, were put up with the other papers and delivered to the jury, and were returned by them with their verdict. It did not appear by whom these depositions were put up for the jury. The irregularity was entirely accidental. The question being put to the jury whether these depositions were read by any of them, tjiey retired to inquire of each other, and on their return (one of them having gone home) the foreman stated that none of the jury had any distinct recollection that either of the depositions had been read by them, but they recollected that part of one of them had been read in court. On the next day some of the jury having suggested that the answer of the foreman was not sufficiently explicit, the question was again put to him, and he stated that the jury had intended to answer, that they were satisfied that' neither of the</p> <p>depositions was read by them m their room. They were then asked if they all agreed in that answer, and they assented The depositions taken for the case amounted' to a hundred , and some of them having been rejected, the number delivered to the jury, after being read in court, was seventy-one. Most of them were taken to impeach or support the credit of witnesses, or the character of the plaintiff, and the jury stated that they had read very few of them.</p>

<p>A new count, filed under leave to amend, must be of the like kind of action with an original count and such as might have been joined with it, and subject to the like plea; and the subject matter of it must be the same as that of the original count, and not an additional claim.</p> <p>Thus, where the original count was indebitatus assumpsit for goods sold and delivered and a bill of particulars was filed, and afterwards two new counts were filed charging the defendant with having received merchandise as bailiff or factor, and no evidence was offered in support of these counts, of any other merchandise being received than that contained in the bill of particulars, a verdict for the plaintiff upon the new counts was sustained.</p> <p>Such an amendment, being only a variation in the form of declaring, will not dis charge bail nor give a priority to a subsequent attaching creditor.</p>

<p>A refusal of the creditor to sue the principal upon a mere request of the surety, unaccompanied with an offer of indemnity against the costs and charges of the suit; is not a defence at law to a suit against the surety, notwithstanding the principa, may afterwards have become insolvent.</p> <p>So of a refusal, under like circumstances, to prosecute a suit already-commenced and in which the creditor has attached property sufficient to satisfy the debt.</p> <p>The payee of a promissory note made by principal and surety, brings an action against the principal on the note and on another debt, and attaches personal property sufficient to satisfy both demands. The property is left in the possession of the debtor, one B giving his accountable receipt therefor to the attaching officer, and part of it is afterwards attached by other creditors. B then pays the amount of the note, which is indorsed to him at his own risk, and is thereupon withdrawn from the suit, and the residue of the property attached is applied in satisfaction of the payee’s judgment upon his other demand. B then sues the surety upon the note. Held that the surety is liable, notwithstanding he requested the payee, after his attachment, not to assign the note.</p>

<p>In an action by the indorsee against the maker of a negotiable note indorsed when overdue, the defendant may show in his defence a negotiable note made to him by the payee, upon proving that it was intended as evidence of a payment of the note in suit.</p> <p>In such action the defendant may file in set-off a negotiable note made to him by the payee before he had notice that the note in suit was assigned.</p> <p>But if he does not file such a note in set-off, nor prove that it was given as evidence of a payment, he cannot make use of it in his defence.</p> <p>It is no objection to such set-off, that the defendant has commenced a suit upon the note filed.</p>

<p>Where an administrator dies within four years from the grant of administration, and an administrator de bonis non is appointed, actions of creditors are not barred until after the expiration of four years from this last grant of administration.</p> <p>Land was devised to A in trust to apply the rents and profits to the support of B during his life, and in an action by the cestui que trust against the trustee to recover the rents and profits, it was held that the general statute of limitations does not apply to trusts.</p>

<p>A writ of mandamus lies to compel a town treasurer to issue his warrant of distress against a collector of taxes neglecting to collect and pay over the same at the time fixed in the assessors* warrant to the collector.</p> <p>Where an alternative mandamus issues in such case to the treasurer, it is not necessary to make the collector a party or to give him notice.</p> <p>If the facts upon which such treasurer is to issue his warrant of distress are properly certified to him, he has no discretion, but is obliged to issue his warrant.</p> <p>But if upon the return of an alternative mandamus to the treasurer, it appears that the tax is illegal or not duly assessed, the court may refuse to grant a peremptory mandamus.</p> <p>If tlie person appointed to warn a school district returns that he warned she inhabitants, but without stating the time or manner of warning, and the inhabitants meet and vote to raise a sum of money, and this vote is duly certified to the assessors, they are obliged to assess the tax, and neither they nor the town treasurer can inquire into the regularity of the proceedings antecedent to the meeting.</p> <p>A school district tax may be assessed upon the valuation of property taken in reference to the town taxes for the same year.</p> <p>Whether a person who moves into a school district after the valuation for the town taxes has been taken, is liable to be taxed therein until a new valuation is taken, qucsre.</p> <p>If after a tax has been raised and assessed on the inhabitants of a school district, part of the district is set off into another district, the inhabitants of such part remain liable to pay the tax, the debt being fixed by the assessment.</p> <p>A town has not power to alter the limits of a school district so far as to destroy the corporation, without its consent, nor so as to annul or impair contracts made with the corporation.</p>

<p>An executor who is residuary devisee, by giving bond in the probate office for the payment of all the debts and legacies, acquires an absolute title in the estate devised, and of course may convey an indefeasible title to a bond fide purchaser; and whether he does or does not give notice of his appointment, is in this respect of no importance.</p> <p>Whether a creditor of the testator, having obtained judgment and execution against an executor who has given sucli bond, can levy upon the estate devised, before any conveyance of it nas been made, g«cere.</p> <p>A testator indebted on a bond secured by a mortgage on part of his land, bequeaths an annuity to A, and makes B and C his executors and residuary devisees. The • executors give bond in the probate office for the payment of all the debts and legacies, divide the estate between them, and procure a discharge of the first men- N tioned bond and mortgage by giving each his separate bond for half of the debt, with a mortgage on his portion of the land originally mortgaged. The annuitant brings a bill in equity for arrears, and obtains a decree, in which it is ordered that the execution to be issued shall be satisfied out of estate which has not been taken ana appropriated for the payment of the testator’s debts. Held, that by a just construction of the decree the land mortgaged was not liable to be ey ended upon.</p>

<p>A conveyance by a disseisee is unlawful and void, but the title remains in the grantor, so that in a writ of entry brought by him, the tenant cannot plead that the demandant, after the disseisin, made such an unlawful conveyance, and that the action is brought at the expense and for the use of the grantee in pursuance of an unlawful agreement between him and the grantor.</p>

<p>Habeas corpus to the sheriff of Suffolk to bring up John G. Nazro. Upon the return of the writ it appeared that Nazro was arrested and committed to jail at the suit of Caleb Cushing, as administrator of Abel Johnson, formerly of Newburyport, upon a process in the common form of a writ of capias and attachment against Nazro, wherein was inserted a bill in equity setting forth a copartnership heretofore subsisting between Johnson, Nazro and one Brice at Cape Haytien in the island of Hayti, and that the administrator believes that a large sum is due from the firm to Johnson’s estate, and praying that Nazro may be restrained by injunction from collecting the partnership debts, that a receiver may be appointed, and that Nazro may be compelled to exhibit the books, &c., and to account, and pay over such sum as may be found due to the estate of Johnson. The officer was directed to hold the defendant to bail in the sum of 10,000 dollars.</p> <p>An affidavit of Nazro was read, stating that he was a partne of Johnson and Brice at Cape Haytien, previous to March 1827, when Johnson died ; that he left Brice at Cape Haytien settling the partnership concerns ; that he did not refuse to exhibit the books, &c., but on the contrary requested the administrator to send an agent to Cape Haytien to examine them ; that when the affairs of the partnership shall be settled, he will be ready to exhibit an account, and to pay over the balance, if any, which may be due to Johnson’s estate ; and that it is impossible for him to comply with the requirements of the bill, without going to Cape Haytien, especially as Brice is now dead.</p>

<p>Where a citizen, having lived many years at.W, in the county of M, purchased and furnished a house at B, in the county of S, and afterwards with his family spent his summers at his house in W, where he continued to pay his taxes, and his winters at his house in B, and died while so residing in B, it was held that he was an inhabitant of W, within the meaning of St, 1817, c. 190, and that the probate of his will might be taken in the county of M.</p> <p>Whether a probate taken in the county of S would not likewise have been valid, ' queer e.</p>

This was assumpsit brought by a deputy sheriff upon a contract of indemnity, by which the defendant agreed that William Ashley, of the State of New York, should save the plaintiff harmless in the levy of an execution in favor of B Pease against W. H. Folger, upon certain articles pointed out by Ashley as the property of Folger, according to the terms of an engagement from Ashley to the plaintiff. The case was tried before Morton J., upon the general issue.

<p>Assumpsit for money had and received. Trial before Putnam J.</p> <p>On the 12th of August, 1824, the plaintiff, being a creditor of Asa Lawrence, employed the defendant to take a conveyance from Lawrence of his right in equity to redeem certain land, and to make sale of the' land upon the best terms he could, and after discharging the incumbrances, to pay the surplus to the plaintiff. The defendant sold the land to one Eaton in March 1825 for 2335 dollars, payable on the 1st of April then next. On the 30th of Marcli Eaton paid all the purchase money except 28 dollars, for which he gave his promissory note, and which was not paid when this action was commenced, ,viz. May 28, 1825, but was paid in June following. Eaton was in good credit, and the defendant might have received the 28 dollars on the 30th of March. The plaintiff was entitled to about 70 dollars, if he was to recover any thing in this action. On the day when the action was com-</p> <p>menced, the plaintiff made a demand on the defendant of what was due on the Bully execution, as the execution against Lawrence was called. The defendant replied that “ he knew nothing about it,— if Bully owed any thing, he might collect it himself,— he had nothing to do with it,— he had before said all that he could say about it.” The defendant paid off the incumbrances as early as March "30, 1825.</p> <p>The defendant contended that he was not liable to be sued for the surplus proceeds of the land, until he had collected the whole, or haa been guilty of some fraud or unreasonable neglect. And the jury were instructed to find for the plaintiff, if from the evidence they believed that the defendant had conducted himself fraudulently, or if he had unreasonably delayed to settle and finish the business when the demand was made ; otherwise to find for the defendant. They found foi ^le plaintiff, and the defendant moved for a new trial on the ground that the evidence would not warrant the finding.</p>

Assumpsit upon a promissory note given by Eli Bullard, the defendant’s intestate, to Mary Hill, the plaintiff’s intestate, for 59 dollars 40 cents, dated December 27, 1814, payable on demand with interest, and purporting to hare been given for value received. At the trial, before Morton J., the defence set up against the note was a want of consideration.

<p>tile plaintiff gave a bond to convey to the defendant a parcel of land, which the defendant had agreed to purchase, and the defendant gave a promissory note on demand, not negotiable, for the amount of the agreed consideration, but taking from the plaintiff a receipt stating that if tiie bargain should be rescinded, the note should be given up, upon the defendant’s giving up the bond. The bond, note and receipt bore the same date. Held, that these papers constituted one contract; that the contract was valid; and that an action would not lie on the note, without a previous tender of a deed of the land.</p>

<p>This was an action upon an administration bond, dated December 17, 1817, given by the defendant as one of the sureties for Edward Wright, administrator on the estate oi Jonathan Wright, deceased, intestate.</p> <p>In a case stated it was agreed, that the action was brought at the promotion and for the benefit of M. Pritchard, N. Barrett and A. Brooks, who were creditors of George Wright, a son and heir of the intestate. The intestate left two heirs, viz. the above named George and Edward. He died seised of real estate, all which he had mortgaged to Levi Frisbie to secure the payment of 1000 dollars and interest. His wife survived him and had her dower assigned to her.</p> <p>in 1818 the administrator, having duly accounted for the personal estate, represented to the judge of probate that there was a deficiency of personal assets to pay the debts of the intestate ; a list of which, including the one to Frisbie, he filed in the probate office, amounting to 2515 dollars, to be provided for by the sale of real estate, and license was granted to him to sell so much as should raise the sum of 2545 dollars, to pay the debts and charges of sale. In the same year he sold under the license so much as raised the sum of 2550 dollars, being all except the part assigned to the widow for her dower. The purchaser was an agent employed by the admin-, istrator to bid for him at the sale. In 1821 the administrator rendered his last account, in which he charged himself with the proceeds of the sale, and charged the estate with the sum of 1060 dollars as paid by him to Erisbie for principal and interest of the mortgage. He made oath to his account, and it was allowed by the judge, including the charge of 1060 dollars, although the administrator knew that no part of that sum had been paid. On the settlement of the account a balance of 19 dollars was found due from the estate to the administrator.</p> <p>Immediately after the death of the intestate, Pritchard,</p> <p>Barrett and Brooks respectively commenced suits against George Wright, and attached all his right in his father’s es tate, and in 1820 obtained judgments, and within thirty days thereafter levied their executions on an undivided moiety of the land assigned to the widow, she being then alive, which executions were duly returned and recorded. In the levies no notice was taken of the mortgage.</p> <p>In 1823 the representative of Frisbie took possession of the mortgaged estate for condition broken, and that possession has been continued more than three years.</p> <p>The administrator administered the estate faithfully, except as above stated. In 1824 he died insolvent, and in 1826 the widow died.</p> <p>If on these facts the judge of probate ought to have given leave to Pritchard, Barrett and Brooks, to bring this suit, it was to be considered as having been duly obtained ; and if the action could be maintained, the defendant was to be defaulted and heard in chancery ; but otherwise the plaintiff was , , to become nonsuit.</p>

<p>Words proper for a devise of an estate for life, will not be construed to pass the fee, by reason of a condition annexed which is to be performed before the death of the devisor and is not known to the devisee before that event.</p> <p>Thus by a devise to A and his present wife, and to the survivor of them, of a house and land, on condition that A shall serve the testatrix as a coachman so long as she shall require, which condition was unknown to the devisees, A takes only an estate for life.</p> <p>Declarations of a testatrix before making her will, are not admissible in evidence to vary the legal construction of the will.</p>

<p>Assumpsit for money had and received. Trial befoie Morton J.</p> <p>To support the action, the plaintiff read in evidence a. promissory note given to him by the defendant.</p> <p>The defence was made by one Bigelow, a creditor of the defendant, who had made an attachment upon the defendant’s property subsequently to an attachment made by the plaintiff, and who was allowed to defend under St. 1823, c. 142. The defence relied upon was, that the note in suit was given without any consideration, and by fraud and collusion between the plaintiff and the defendant.</p> <p>The plaintiff offered to prove the admission of the de fendant made since the commencement of the suit, that the note was given for a valuable consideration, and was honestly due to the plaintiff; but this evidence was rejected.</p> <p>The jury returned a verdict for the defendant, and the plaintiff moved for a new trial, among other reasons, because he was not permitted to prove the confession of the defendant as above stated.</p>

<p>Assumpsit on a promissory note payable to W. Walsh or order, in sixty days with grace, and indorsed by Walsh to the plaintiff.</p> <p>At the trial, before Morton J., it was admitted, that Coopei,</p> <p>Gould, and Robbins, the three defendants, were partners in the business of brewing, and that the note was signed by Robbins in the name of the firm. Robbins had been defaulted. Cooper and Gould, who appeared and pleaded the general issue, objected to the admission of the note in evidence, because it was described in the declaration as dated at Concord, in this county, whereas it appeared to be dated at Boston, in the county of Suffolk. But the judge ruled that the variance was immaterial, and permitted the note to be read to the jury.</p> <p>The defendants then offered to prove that the note was made by Robbins for his own benefit and on account of his private business, and not for the benefit or on account of the company, or with the knowledge of the other partners. But as the defendants did not offer to prove that the note was due when it was indorsed to the plaintiff, or that he had any knowledge of these facts, the judge was of opinion that they did not amount to a defence, and directed the defendants to be called.</p> <p>If this opinion was wrong, or if the note was improperly admitted in evidence, the default was to be taken off and a new tria granted.</p>

Assumpsit upon a promissory note, for 1000 dollars, made in the name of Cooper, Gould, and Robbins, the three defendants, payable to Robbins or his order in one year with interest, and indorsed by Robbins to the plaintiff. Gould and Robbins were defaulted, and Cooper pleaded the general issue.

Bill in equity to redeem. The bill was served • on the defendant on the 6th of July, 1825.

<p>Keniston was sentenced on the 6th of October, 1825, to solitary confinement for ten days and hard labor for two years, in the state prison, and was on the same day removed to the prison. On the first day of this term, which was the 16th of October, (Keniston being still detained in the prison,) the solicitor-general filed an information, stating a former con viction and sentence to hard labor for another offence, and praying that an additional punishment might be awarded, pursuant to Si. 1817, c. 176.</p>

<p>Assumpsit upon an account annexed to the writ, for sup plies of provisions for the sloop Superb.</p> <p>Plea, the general issue.</p> <p>At the trial in the Court of C. P., before Williams J., it appeared, that the provisions were sold and delivered by the plaintiff, in August 1824,. at New Bedford, to one Parker, then master of the sloop, for the use of the sloop, of which the defendants, who lived at Edgarton, were then the general owners; that Parker had previously, by a parol contract made between him and the defendants, taken the sloop and agreed to victual and man her, free of expense to the owners, and to pay them one half of her earnings, and that she was, at the time of the sale and delivery of the provisions, in the possession and employment of Parker in pursuance of the contract. The judge directed a nonsuit ; whereupon the plaintiff filed exceptions.</p>

<p>Writ of entry, in which the demandant declared on his own seisin within thirty years. Plea, nul disseisin.</p> <p>At the trial, before Morton J., it appeared, that the demandant was formerly seised of the land demanded, consisting of a parcel of salt marsh, and that for the purpose of securing a debt due from him to one Crocker, he conveyed the same t w to absolute deed to Crocker, who agreed to recon.vey upon pa_ ment of the debt. This deed was duly recorded. In pursuance of his agreement Crocker did réconvey by a deed of quitclaim, which was not put upon record. This deed was returned to Crocker and cancelled, and he made a deed of quitclaim to one Boane, which was never recorded. Afterwards Boane gave up this deed, and on the 31st of August, 1820, Crocker made another deed of quitclaim to the tenant, which was recorded. The demandant possessed an: annually mowed the land until the year 1819, when it was not mowed by any one, and no other person took possession of it until 1820, when it was first let to the tenant by Boane ; and after he had mowed it and removed the hay, the deed above mentioned from Crocker to him was made. There was no evidence that he knew of the deed from Crocker to the demandant, or of the demandant’s claiming the land.</p> <p>The. demandant’s counsel contended, that the deed from Crocker to the tenant, being merely a release, could not operate for the want of sufficient possession in him, and that the estate, having vested in the demandant by Crocker’s deed to him, could not pass from him but by his deed of conveyance; but the judge was of a different opinion, and ordered a nonsuit, subject to the opinion of the whole Court.</p>

Assumpsit upon a promissory note as follows : — “ West-port, March 9, 1809. Value received I promise to pay W. White or order 100 dollars, to be paid if I recover of T. Shearman my demands against said Shearman towards the land where I now live, to be paid when recovered of said Shearman, with interest from this date. Amos Snell jun.” The writ contained three counts.

<p>The Court said that this was not like common cases of alimony ; that the situation of the petitioner required extraordinary expenses, and if the parties had not been divorced, the respondent would have been morally obliged to spend more than his income, and to sell part of his real estate, to pay those expenses, and his improper conduct ought not to excuse him from doing what by his marriage contract it would have been his duty to perform. The Court therefore increased the allowance to 60 dollars a year.1</p>

<p>The defendants were jointly indicted and tried for receiving and secreting a piece of broadcloth, a shell comb, and a quantity of money, knowing that they had been stolen. Trial before Morton J.</p> <p>Before the trial commenced, the counsel for Malbone moved that he should be tried separately, and assigned as a reason, that evidence of the declarations of his wife might prejudice him. This motion was objected to by the attorney-general and was overruled.</p> <p>It appeared that a piece of broadcloth was found in Malbone’s house, and the attorney-general offered in evidence the declarations of the wife in relation to it. These were objected to, but admitted.</p> <p>The indictment set forth the record of a former conviction of Malbone of a similar offence, with the usual allegations of identity. Upoi. the trial the identity was not denied, nor was any evidence offered to prove it. No question was made to the jury upon the point.</p> <p>The jury returned a general verdict of guilty against Malbone, and of not guilty in favor of his wife.</p> <p>The defendant Malbone moved for a new trial, 1. on ac count of the admission of the testimony above mentioned ; and 2. because there was no evidence of the identity of the Malbone Briggs named in the former conviction and the present defendant, to support the verdict.</p>

<p>Assumpsit upon a promissory note. The defendant, by his attorney, pleaded the general issue.</p> <p>At the trial in the Court of Common Pleas, the plaintiffs having produced the note and proved the defendant’s signature, the defendant offered to prove that at and before the making thereof he was, and ever since had been, an idiot and incapable of making a valid contract; but Williams J. ruled that he was not, by law, entitled to this evidence. The jury having found a verdict for the plaintiffs, the defendant filed his exceptions to this direction.</p>

<p>The testimony of the cashier of a bank, that a letter was received either by himself or by a director, and that each of them had searched for it, and that it was probably lost when the fire happened at the bank, is not sufficient, without the affidavit of the director also, to let in parol evidence of the contents of the letter, for the testimony that the director had searched for it is but hearsay.</p> <p>But if the cashier had further testified, that the letter was kept on the files of the bank, it seems that secondary evidence of the contents would have been admissible# Presumptive evidence of the loss of a paper is sufficient to let in parol evidence of the contents.</p> <p>in an action against the indorser of a note, proof of a waiver of notice will support the allegation of actual notice.</p> <p>Where the indorser of a note applied to a bank to have it discounted, and promised to attend to. the renewal of it, and to take care of it, and directed that a notice to the maker should be sent to his care, and such notice was sent accordingly, it was held) that this was a waiver of a regular demand and notice, or at least that from it a jury might legally infer a waiver.</p>

<p>In an action against an attorney to recover money collected by him of the plaintiff g debtor, the debtor is a competent witness to prove that he paid the money to the attorney.</p>

<p>Scire facias against Brownell as trustee of Benjamin Devoll. Brownell disclosed that a bill of sale of personal property was made to him by B. Devoll, and various questions were put to him, in order to prove that the bill of sale was fraudulent as against creditors and that he had secreted the property, which he'refused to answer.</p>

<p>Assumpsit for expenses incurred in supporting Thomas Howard, his wife and child, paupers whose settlement was alleged to be in Pembroke.</p> <p>On the 14th of August, 1809, land in Pembroke, of the yearly income of three pounds, was set off to the wife as dower in the estate of a former husband, by commissioners appointed for that purpose, and on the 15th of September, 1810, their report was accepted and the dower confirmed by a decree of the judge of probate. Howard took possession of the land immediately after it was set off, and continued to occupy and receive the income of it until January 6, 1812, when, to satisfy an execution against him, he and his wife made a lease of the land for one year, to commence on the 16th of March, 1812, whereupon the execution was discharged. In May 1813, it was set off for the term of two years, in satisfaction of another execution, and in July 1814 Howard and his wife conveyed all their interest in the estate to one Whitman.</p> <p>Morton J. ordered the defendants to be called, but if upon these facts the settlement of the paupers was not in Pembroke, the default was to be taken off.</p>

<p>Trespass quare clausum fregit. The plaintiff, being owner and in possession of the locus in quo, conveyed it to Nehemiah Newhall by deed dated the 18th of February, 1823, and recorded on the 21st, and at the same interview, but after the deed was executed, Nehemiah Newhall executed a bond to the plaintiff dated the 19th of February, conditioned that he would reconvey upon payment of a sum of money within three years. On the 14th of January, 1826, the defendants attached the land on mesne process, and subsequently extended upon it, as belonging to Nehemiah Newhall. On the 11th of February, 1826, which was before the extent, the bond' was recorded, the defendants having previously had no knowledge of its existence.</p>

<p>The assessors of a town, &c., are not responsible to an inhabitant for any uninten» tional error committed by them in the assessment of a tax, but the party injured thereby must seek his remedy against the town, &c.</p>

<p>Assumpsit. Plea, the general issue, except as to the sum of 495 dollars and 69 cents, which was brought into court and accepted by the plaintiffs in part satisfaction.</p> <p>The action was brought to recover the plaintiffs’ proportion of the demurrage, received through the United States’ government of the Columbian government, for the detention of the schooner Minerva.</p> <p>At the trial, before Morton J., it appeared that the Minerva was owned, one quarter by the plaintiffs and W. Wilde deceased, one quarter by the defendant, and the other two quarters by W. Read and B. W. Brown. The plaintiffs and Wilde took the vessel into their employment at the halves. They were to fit her out, and to pay the owners one half of her earnings. They fitted her out accordingly. She sailed from Somerset to Wilmington, thence to Baltimore, thence to St. Jago de Cuba, and on her return from thence, bound to Philadelphia, she was captured by a Columbian privateer, and after a detention of several months was condemned. The defendant, as agent of the owners, made application to the congress of the United States for relief; in consequence of which, and by means of the interposition of the United States’ government, the Columbian government made restitution to the owners and others interested in the vessel and voyage. The defendant, as agent, received 4000 dollars for the vessel, 1000 fci loss on the homeward voyage, and 1500 for demurrage, with interest from June 27, 1820, the day of the capture, to March 18, 1825. The amount received by the defendant for demurrage, including interest, was 1924 dollars and 68 cents. The crew of the Minerva, during her detention, were in part subsisted by provisions from the Columbian squadron lying in the port, partly by rations from the Columbian government, and partly by provisions on board.</p> <p>On the 30th of October, 1821, the plaintiffs and the defendant, together with the other owners of the Minerva, (except Wilde, who had died,) made a settlement and.agreement relative to all the concerns of the schooner, in the words following, viz. “ Troy, October 30, 1821. This day we the subscribers, owners of the schooner Minerva lately lost on the Spanish Maine, have settled all account's relative to said schooner that have come to our knowledge. And if any more demands should be brought against said owners, they are to be paid as we own in said schooner, and if any money should be recovered for our claims on the captors of said schooner, we are to receive in proportion as we own in said schooner ; the claims for wages, or victualling said vessel on her last voyage, while W. Wilde was master, to be paid by T. E. Warning and A. W. Coggeshall. Whatever may be recovered for the freight on board said schooner at the time of her capture, is three eighths to J. E. Read, W. Read and B. W. Brown, and five eighths to T. E. Warning and A. W. Coggeshall.”</p> <p>A copy of the memorial made by the defendant as agent of all the surviving owners, and drawn with their knowledge and consent, was made a part of this case.</p> <p>In the spring of 1821 all the surviving owners fitted out a small vessel to go to the Spanish Maine, to recover some indemnity from the captors ; and all the expenses of this expedition were paid by the several owners according to their interests in the vessel.</p> <p>In March 1826 the parties entered into a rule of reference, wherein the plaintiffs claimed only five eighths of the demurrage. This rule was never acted upon.</p> <p>The plaintiffs contended that the fitters were entitled to</p> <p>the whole amount paid for the demurrage and the defendant contended that the owners were entitled to the whole.</p> <p>The judge ordered a nonsuit, but if the plaintiffs were en titled to recover any thing further, the defendant agreed to hi defaulted, and that judgment should be rendered for the plain tiffs for such sum as the Court, upon the foregoing factr, should adjudge to be due.</p>

<p>Assumpsit upon a promissory note dated May 2, 1825, made by the defendant to the plaintiff, for 600 dollars ; interest and 100 dollars of the principal to be paid yearly.</p> <p>The parties agreed, that on the 28th of November, 1824, the plaintiff intermarried with Ebenezer Dean. At that time she was seised in her. own right of certain real estate ; which on the 2d of May, 1825, she and her husband conveyed to the defendant. The note sued was given as a part of the consideration mentioned in the deed, and it was then agreed by the husband, that the plaintiff should retain the note as her own property, and should receive the payment of it to her own separate use ; and she has ever since retained the note. At the term of this Court held at Taunton in April 1826 she was divorced from the bed and board of her husband, and it was decreed “ that all the real and personal estate which came to the said Ebenezer by his marriage with the plaintiff should be restored to her.*” Upon this statement the plaintiff contended that she was entitled to recover the amount of the note.</p> <p>It was also admitted, that in August 1826 the defendant, without the knowledge or consent of the plaintiff, paid over to the husband the amount of the note, taking from him a bond of indemnity. -</p> <p>If the Court should be of opinion that the plaintiff was entitled to recover, the defendant was to be defaulted; if otherwise, the plaintiff was to be nonsuited.</p> <p>It was further agreed, that the defendant should have, under this statement of facts, all the advantages which he could by a plea in abatement, he having in the Court of Common Pleas duly pleaded in abatement the coverture of the plaintiff.</p>

<p>Assumpsit for one year’s salary, from September 24, 1825, to September 24, 1826, due to the plaintiff as the ordained minister of the Catholic Congregational Church and Society in the second precinct in Rehoboth; also for 4000 dollars money had and received by the society to the plaintiff’s use Plea, the general issue. A trial was had before Morton J.</p> <p>The plaintiff was ordained as minister of the society and of the church connected with it, on the 24th of September, 1800. The society passed a vote granting him a salary of 350 dollars a year, so long as he should continue to perform the duties of minister. In 1810, the society raised the salary to 450 dollars, and m 1813, to 500.</p> <p>It was agreed that the plaintiff officiated as the pastor of church and society, during the year for which he now c^rne(l his salary, and that he preached in the meetinghouse until he was prevented by the society, and afterwards performed the services of public worship in private houses, to such of the society as chose to hear him.</p> <p>On the 18th of "June, 1792, an act was passed to incorporate the society, and to repeal an act, passed in 1761, investing the committee of the second precinct in Rehoboth with corporate powers.</p> <p>In support of the count for money had and received, the plaintiff produced the will of Ephraim Hunt, dated February 21, 1774, and approved March 4, 1776, in which the testator devises and devotes certain real estate towards the support of public worship, for the benefit of the inhabitants of the second precinct in Rehoboth, who shall attend meeting in the church at Palmer’s river, and directs that the estate shall be leased out, and the yearly income and rents paid to the min ister of the church at Palmer’s river. It appeared that the society, after its incorporation, took possession of the estate by its trustees, and received the rents and profits thereof from the plaintiff’s ordination to the present time ; which greatly exceeded the amount paid to the plaintiff as his salary, and which have been added to the fund of the society. The church suffered no change whatever by the incorporation oi the society, but remains the same body as it was in 1774.</p> <p>In answer to this count, the defendants produced evidence tending to show, that at the time of the plaintiff’s settlement he agreed, in consideration of his being ordained and receiving the stipulated salary, to relinquish all claim and title to the income of the Hunt devise. This evidence, being parol, was objected to by the plaintiff, but was admitted.</p> <p>The question was left to the jury upon the. evidence, and upon this count they found for the defendants.</p> <p>In answer to the counts for one year’s salary, the defendants offered receipts, showing that the plaintiff had received his salary for the first quarter of the year, and they contended that before the termination of this quarter, he had been dismissed from his office of minister of the society.</p> <p>For this purpose the defendants offered the votes of the society, of September 9, 1825, dismissing the plaintiff from his pastoral office, requesting the church to concur in his dismission, and to invite the plaintiff to join them in calling a mutual council to complete his dismission, and if he should refuse, then to call an ex parte council; and in case the majority of the church should refuse to call a council, requesting the minority to do it; also choosing a committee to communicate these votes to the church. The defendants then offered a copy of a communication to the church by this committee, dated September 9, 1825, and the answer of the church declaring that they do not wish the dismission of their pastor, and refusing to join in calling a council. Also the request of a minority of the church to the plaintiff, dated September 19, 1825, to join in a mutual council, and the plaintiff’s refusal, dated September 20th. Also letters missive by a minority of the church, dated October 1, 1825, calling a council, and. the proceedings and result of the council, dated October 12, 1825, in which they declare that the minority of a church may rightfully call an ecclesiastical council, but that such council has no right to advise the dismission of their pastor ; and they recommend to the aggrieved members of the church to make further efforts for a reconciliation, and to the pastor to agree to a mutual council.</p> <p>The defendants then offered the votes of the society of October 25, 1825, to dismiss the plaintiff, because owing to his conduct they considered his usefulness very much at an end ; to have a council called ; and to choose a committee to select the council, issue letters missive, and make communication in behalf of the society to the council when assembled. They also offered a request of three members of the church to the plaintiff, dated October 15, 1825, to unite with them in a mutual council, and his answer, dated the 17th, declining. Also a letter missive calling an ex parte council, signed by five member» of the church, and by the committee of the society.</p> <p>The remonstrance of the plaintiff against the meeting oí the council, dated October 29th, and two protests of the</p> <p>plaintiff to the council, dated November 2d, against their authority to proceed, were then offered.</p> <p>The defendants also offered a notice of the committee of the society to the plaintiff, that they had called a council, of the time and place of meeting of the council, and of the charges which they intended to prefer against him, dated October 27, 1825.</p> <p>The defendants then proved, that a committee of the first council advised the plaintiff to agree to a mutual council, and that he refused, and declared that he never would agree to any council. He appeared before the last cotlncil, but it was only to object to their jurisdiction.</p> <p>The defendants then offered the proceedings and result oí an ex parte council, held on the 1st and 2d of November, 1825, in which the council declare, that they are regularly convened and have authority to proceed, that a mutual council has been sufficiently offered, and that it is expedient that the ministerial connexion between the plaintiff and defendants be dissolved. They recommend to the society to pay the plaintiff 500 dollars, if he will consent to the dismission. They decline investigating the charges brought against the plaintiff, but declare that their decision in favor of his dismission is founded upon his unjustifiable and oppressive discipline in his church, the alienation of many of his church and society, and the loss of his usefulness as a minister, and the danger that his continuance will increase the existing difficulties.</p> <p>The plaintiff objected to the admission of the proceedings relative to the last council and of the result of the council, because there was no offer of a mutual council, and because no sufficient cause for dismission was assigned. The defendants contended that the declaration of the plaintiff, that he never would agree to a mutual council, was on his part a waiver of any right to an offer of a mutual council, and justified the defendants in calling an ex parte council without any offer of a mutual council, and also that the plaintiff’s appearance before the council was an admission that it was regularly convened. But the judge rejected the evidence.</p> <p>The defendants then offered the proceedings of the society at a meeting on the 30th of November, 1825, when it was voted to dissolve the connexion between the plaintiff and the church and society for the following causes, viz. the advice and recommendation of the former councils ; — that the plaintiff had neglected his parochial duties ; — that by his deportment towards individual members of the society and members of the church, and by his unjustifiable and oppressive proceedings in the church, he had forfeited his contract with the defendants. It was also voted to accept and approve the result of the council held on the 1st and 2d of November, and to direct the trustees of the society not to pay the plaintiff his salary any longer, and to shut up the meetinghouse, and to communicate these proceedings to the plaintiff.</p> <p>The plaintiff objected to the admission of this evidence, because the proceedings were inoperative, there being no sufficient causes assigned for the dissolution of the contract between the parties. The evidence was rejected.</p> <p>Tl.e defendants then offered to show that the plaintiff had, by unchristian and immoral conduct, forfeited his office; and they proposed to prove specifically, that he had been partial and oppressive in church discipline, in preferring charges before the church against an individual, of falsehood and slander, which were not supported, and charges which were frivolous and vexatious, such as that the person complained of demanded and took unreasonable prices for certain articles, that he practised deceit in the sale of other articles, and that ae was guilty of intoxication. They also offered to pi ove that the plaintiff had said of three members of his church, that they were liars, of one of the deacons, that he was a wicked man, &c.</p> <p>To the admission of this evidence the plaintiff objected, because these allegations now proposed to be proved, were no. i ssigned by the society, in their vote,' as the causes of the plaintiff’s dismission, and because the plaintiff had in no way any notice of thefn, nor any opportunity to be prepared to meet ti e evidence produced in support of them. The evi? dence was rejected.</p> <p>The defendants contended that as the plaintiff, in his counts for his salary, had alleged the performance of the duties of his office, and as the evidence showed that he had not in fact performed them, the counts were not supported, although it appeared that the defendants themselves had prevented the performance. But the judge overruled this objection, and instructed the jury, that if the plaintiff was ready and offered to perform his parochial duties, and was prevented by the acts of the defendants, he was entitled to recover in this action.</p> <p>To this instruction the defendants excepted. If it was wrong, or if any of the decisions of the judge in admitting or rejecting evidence was erroneous, a new trial was to be granted ; otherwise judgment was to be rendered upon the verdict.</p>

<p>One summoned as trustee in a process of foreign attachment, answered, that as guardian of an infant he sold land to the principal defendant, under a license of court, but that he did not give the bond nor take the oath required by law previous to such sale ; that part of the pur grase money had been paid, and a deed had been executed and placed in the hands of a third person, to be delivered when the residue should be paid; that the principal defendant, soon after the sale, entered and was still in possession of the land, and had paid the taxes for several years, but that the last tax had been assessed to the respondent as guardian, he being himself one of the assessors. Held, that he was chargeable as trustee for the money which he had received, the sale being invalid.</p>

The appellant applied to the judge of probate for the county of Barnstable for letters of administration on the estate of Nathaniel Russell of Nantucket, deceased, intestate. He represented, that the judge of probate for Nantucket was interested in the estate, being a creditor of the deceased and an attorney to two of the heirs.

Trespass quare clausum fregit. Pleas, 1. a right of waj by prescription from the upland across the plaintiff’s sal marsh (the locus in quo), to the defendant’s salt marsh, in the fall and winter, where most convenient to the defendants anc. least prejudicial to the plaintiff, for the purposes of getting the produce of the defendant’s marsh and of improving and managing the same : — 2. a right of way of the same kind and extent by a non-existing grant.

<p>Where a shop placed on land of the plaintiff with his permission, was sold on an execution against the owner, it was held that the purchaser had a right to enter upon the land and remove the shop.</p> <p>fn an action of trespass for such entry against the purchaser and his assistants, the defendants, in support of their justification, may give in evidence the execution and return, without proving that the person levying the execution was an officer de jure } and it is immaterial that he is one of the defendants.</p>

<p>A decree of a judge of probate, that a person is non compos mentis 3 or appointing a guardian over him for that cause, without notice, is absolutely void; and where the probate records are apparently entire, and no loss of papers in the probate office is suggested, it cannot be presumed, even after the lapse of thirty years, that any decree was passed, adjudging a person to be non compoSi or any notice given* which does not appear.</p>

Trespass for breaking and entering the plaintiff’s close in Marshfield, described as a wharf and landing place, bounded on three sides by the navigable waters of North river, and taking, carrying away, and converting to the defendant’s use, the plaintiff’s store thereon standing.

<p>Trespass de bonis asportatis. The defendant pleaded in justification, that he took the property by virtue of a warrant of the assessors of the First Universalist Society of Plympton, requiring him, as collector of taxes for that society, to levy and collect of the plaintiff, his proportion of a tax assessed.</p> <p>The question was upon the sufficiency of the warrant. The parties agreed, that it was made out and signed by the</p> <p>assessors, and that while they were together a seal was put or the usual place of sealing assessors’ warrants, at the left hand at the top, and the warrant was otherwise in due form, except that it concluded with the words, “ given under our hands,” without adding “ and seals.”</p>

<p>The circumstance, that in the assessment of a tax some individuals are assessed who are not liable to the tax, does not vitiate the assessment as respects those who are liable ; and a second assessment made for the purpose of rectifying the error, is illegal and void.</p> <p>Where a religious society voted to raise a sum of money, without appropriating it, intending that it should be assessed on a valuation of the 1st of May following and be applied to defray expenses to be incurred after that day, it was held, that a pet-son, who separated himself from the society after the vote and before the 1st of May, was not liable to the assessment.</p> <p>Held also, that a person whose property had been taken by distress to pay a tax thus illegally assessed, might maintain an action of trespass against the assessors, or for money had and received against the society to which it had been paid.</p>

<p>This was an action of debt, founded upon St. 1785, c. 52, to recover double the value of fence erected by the plaintiff between his land and that of the defendants.</p> <p>The defendants pleaded that the plaintiff and those under whom he claims, have time out of mind built and still ought to build and maintain the division fence between the lands ; and upon this issue, was joinech</p> <p>At the trial, before Morton J., it appeared, that the plaintiff was the owner and occupant of the land described in his declaration ; that by St. 1811, c. 56, the defendants were created a corporation for the purpose of managing the common and undivided lands in Hull, which adjoin the land described in the plaintiff’s declaration ; that the defendants’ lands have time out of mind been owned and occupied by them, and those under whom they claim, as tenants in common ; that the plaintiff, and those under whom he claims, during all that time owned and occupied eleven one hundred and forty-fourth parts of the same ; and that the lands both of</p> <p>the plaintiff and of the defendants are improved lands within the meaning of the statute.</p> <p>Upon these facts the plaintiff contended, that it appearing that he and those under whom he claims have always been tenants in common with the defendants and those under whom they claim, the defendants could not show a prescriptive obligation on the part of the plaintiff to maintain the fence in question. But for the purpose of trying the question of fact by the jury, the judge overruled the objection.</p> <p>The defendants then produced evidence, that for fifty-six years the plaintiff and his ancestors had maintained the fence at their own expense ; that fifty-six years ago the fence was an old one, and that then one of the plaintiff’s ancestors, being the owner of the land, said that himself and his ancestors had always maintained the fence.</p> <p>The jury Teturned a verdict for the defendants. If upon the foregoing evidence the Court should be of opinion that the defence was not supported, a new trial was to be granted ; but otherwise judgment was to be rendered upon the verdict.</p>

<p>Assumpsit upon a note signed by the defendant, in which <£ for value received ” he promised to pay the board of trustees of the fund belonging to the second precinct in Pembroke, now the congregational society in Hanson, fifty dollars on demand and on interest. Plea, the general issue.</p> <p>Upon the trial in the Court of Common Pleas, before Williams J., it appeared, that individuals belonging to the church and congregation in Hanson met for the purpose of raising, by voluntary subscription, a sum of money to be added to the fund already established for the support of the minister of the congregational society in that town. (See the acts incorporating the trustees, viz. Special St. 1794, c. 29, and 1816, c. 93.) It was agreed in writing by those who met, of whom the defendant was one, that they should subscribe whatever they felt themselves able to do, and in case the whole sum subset ibed should amount to a sufficient addition to the fund for the support of a minister, they were to be held, otherwise not. On this agreement the defendant subscribed fifty dollars, and the original fund with the additional sum subscribed being sufficient to support a minister, the defendant gave the note declared on.</p> <p>In defence he offered to prove by parol evidence, that the note was given upon a condition that the principal should not be called for, so long as the interest should be punctually paid; but this evidence was rejected. He always paid the interest punctually.</p> <p>The note was given in evidence to the jury, with the instruction that it was founded upon a sufficient consideration ; and they returned a verdict for the plaintiffs.</p> <p>The defendant filed his exceptions to the foregoing directions of the judge.</p>

<p>Petition for partition. The petitioners claim to be seised each of one twelfth part of a tract of woodland, as heirs of Nathaniel Shepardson. The respondents plead that they, as tenants in common, are seised of all the land, and traverse the seisin of the petitioners ; upon which issue is joined.</p> <p>It was-agreed by the parties, that Nathaniel S. died seised of the land, leaving twelve heirs, of whom the petitioners are five. Otis Shepardson was one of the heirs, and the respondents are the heirs of Otis. The respondents claim under the will of Nathaniel, in which he devised to his widow, during her life, the use and improvement of all the homestead or farm whereon he then lived, and to his son Otis, in fee, the whole of the farm and buildings where he (the testator) then lived, after the decease of his widow. By the other provisions in the will the testator gave all his personal property to his widow and to Otis, a pew to two of his daughters, ten acres of land in Wrentham to his son Nathaniel, and several pecuniary legacies to his daughters, one of which was to be paid by his son Nathaniel and the others by Otis, who was also to pay the testator’s debts and funeral charges.</p> <p>It appeared in evidence, that the land described in the petition was, during the testator’s lifetime, woodland, that it was situated about one mile from his dwelljnghouse and half a mile from the nearest part of the farm on which the house stood, that it was usually called the Wrentham lot, that the farm on which the house stood is in Rhode Island and the wood lot in this State, that there was on this farm a great deal of woodland from which the testator usually procured wood for the supply of his fires, that he frequently sold from the Wrentham lot cord wood and hoop poles, and sometimes got from it rails for the use of his farm, and the wood remaining, after taking the rails and merchantable cord wood, was frequently carried to his house and there consumed.</p> <p>It also appeared, that the testator made by parol a division of his real estate between his three sons, and set off to each a part, which he occupied during the testator’s lifetime; that Otis occupied the homestead, and with it, also used the Wrentham lot, so far as to take the wood and rails from it for the use of the house and farm as before stated, but that the proceeds of the timber and cord wood taken from it were received by the testator.</p> <p>Upon this evidence Morton J. was of opinion, that the Wrentham lot did not constitute a part of the homestead, and did not pass by the will to Otis. Whereupon the parties agreed that a verdict should be returned for the petitioners, and that if the whole Court should be of the same opinion, judgment should be rendered upon the verdict; but if of opinion that the land in question passed by the will to Otis, then judgment should be rendered in favor of the respondents.</p>

<p>This was an indictment upon St. 1788, c. 65, § 6, foi pound-breach.</p> <p>At the trial, before Putnam J., it was proved, that eight cows were discovered by Bayley, the tenant of a farm owned by the town of Quincy, doing damage thereon. He sent for Crane, a field-driver and keeper of the town pound. Bayley confined the cattle in a corner of his field until Crane came near, and then turned them into the highway and left them there, and told Crane to take care of them. Crane then took them as neat cattle going at large in the highway, and impounded them.</p> <p>It was admitted that the inhabitants of Quincy by vote, pursuant to St. 1799, c. 61, ordered and directed that neat cattle should not go at large at the time when these ,vero taken and impounded.</p> <p>It was found by the jury, that the defendant broke open the gate of the pound with violence and drove the cows out of the pound.</p> <p>The defendant contended, that upon the facts proved, the rows could not be considered as at large, but as having been originally taken by Bayley damage-feasant, and not liable to to be taken by Crane as being at large in the highway without a keeper. With a view to obtain the opinion of the whole Court, the objection was overruled, and a verdict was found for the commonwealth.</p> <p>After verdict the defendant moved in arrest of judgment, that the St. 1788, c. 65, contained no prohibition against the going at large of neat cattle in the highway.</p>

<p>This was a complaint before a justice of the peace, founded upon St. 1825, c. 89, in which the complainant alleged, that the defendant was in possession of one half of a certain dwellinghouse without law and against the right of the complainant. The defendant pleaded soil and freehold in himself, and traversed the complainant’s allegation above stated ; whereupon the complaint was removed to the Court of Common Pleas, whence it was brought by appeal to this Court. The complainant replied, protesting that the soil and freehold were not in the defendant, that the defendant was in possession without law and against the complainant’s right, and thereupon issue was joined.</p> <p>At the trial, before Morton J., the complainant, to prove his title, produced a letter of administration appointing him administrator of the estate of John Clapham deceased, dated February 14, 1825, granted by the judge of probate for the county of Suffolk ; — an order from the same judge authorizing the complainant to sell real estate of Clapham to the amount of 3083 dollars ; — a deed from the complainant as administrator, dated June 22, 1825, by which, in consideration of 700 dollars, he conveyed the whole of the parcel in question to one Wainwright; — and a deed of sale and re-.ease of the same date from Wainwright to the complainant, in which the consideration was one dollar.</p> <p>It was admitted by the complainant, that Wainwright bid off the land for him and at his request, and never in fact paid any thing for it, the complainant being accountable for the consideration as administrator. The defendant objected that this sale was void, and that nothing passed by these deeds but the objection was overruled.</p> <p>‘ The defendant' then contended, that the grant of administration was void for want of jurisdiction in the judge of probate of the county of Suffolk, because Clapham, who died in the island of Berbice, did not leave any property within that county ; and he produced an inventory dated March 28, 1825, returned by the complainant, which contained real estate in the counties of Worcester and Norfolk, but no other property.</p> <p>The complainant offered to prove by parol evidence, that Clapham did leave certain chattels in Boston, in the county of Suffolk, at the time of his decease. This was objected to by the defendant, but was admitted ; and it was testified that Clapham left Boston about twenty years before his decease, leaving with' his wife furniture and plate, of which there remained in her possession in Boston, at the time of his de cease, certain articles which she afterwards sold and used the proceeds as her own.</p> <p>The jury returned a verdict for the complainant; but if any of the foregoing determinations of the judge was wrong, a new trial was to be granted, otherwise judgment was to be rendered upon the verdict.</p>

<p>Lease of a farm with a provision that the produce, whether growing or harvested, if deposited upon the land, should be held for the rent and be at the disposal of the lessor, and that the lessor might enter to take the same for rent that should be in arrear, accounting for the proceeds towards the payment of the rent. Held, that such produce, before any actual delivery to the lessor, was liable to attachment at the suit of a creditor of the lessee.</p>

Assumpsit by the plaintiff as bearer of a promissory note, dated May 11, 1822, for 5 dollars and 52 cents, payable to S. Godfrey or bearer, in three months from date. Plea, the general issue. At the trial in the Court of Common Pleas, before Williams J., the plaintiff produced the note with the name of Godfrey indorsed thereon in blank.

<p>Devise of real estate to a town for the purpose of building a schoolhouse, provided k is built within 100 rods of the place where the meetinghouse now stands. Held, that this was a devise upon a condition subsequent; that the estate vested accordingly in the devisees ; that it was forfeited by a neglect for twenty years to comply with the condition; and that it passed to the residuary devisee, and not to the heir, there being an interest in the testator not specifically devised, depending upon the performance or non-performance of the condition.</p>