Volume 23 — Massachusetts Reports

Assumpsit for expenses incurred in the support of Elizabeth Foss, a pauper. At the trial, before Putnam J., it was proved, that the pauper was a granddaughter of Shadrach Ireland, a teacher of certain peculiar doctrines in religion, and derived her settlement from him. He fled from Charlestown in 1760, to Harvard, to avoid a prosecution for blasphemy, and lived there in great privacy till 1780, when he died there.* His wife and four children remained at Charlestown.

<p>This was a bill in equity brought by John Manning, Aaron Pool and William Norwood, all of Gloucester, on behalf of themselves and of all others, being inhabitants of Sandy Bay (part of Gloucester) and belonging to the religious society of universalists, otherwise heretofore called members of the Independent Society in Gloucester, and parties to the covenant hereafter mentioned, and their heirs. The bill alleges, that heretofore, as set forth in the covenant, purporting to be dated on the 20th of August, 1802, the plaintiffs, having neen requested by the inhabitants of the fifth parish to join them in building a house for public worship, presented the covenant to a meeting, called an inhabitants’ meeting, held by the fifth parish and others, inhabitants of Sandy Bay, being the plaintiffs in this suit, convened by the authority of the fifth parish, and that the covenant was accepted by the parish; that the plaintiffs did by the covenant, under their seals, covenant and agree with the inhabitants of the parish, that they would bind themselves and their heirs for the building and finishing of the meetinghouse, in concurrence with the inhabitants of the parish, in manner following, viz. that after the sales of the Dews, if the proceeds should be insufficient to defray the expense of building, they would pay their proportion of the deficiency, to be ascertained by the town valuation of 1803, by a joint committee to be appointed by the parties for that purpose, or if there should be a surplus, that it should be distributed between the parties in the like proportion ; and that the meetinghouse should be used by the parties respectively in the same proportion, to be ascertained by a joint committee of both societies ; and that upon the proportion’s being ascertained to the acceptance of a majority of their committee or committees respectively, it should thereupon be accepted by the inhabitants, and such proportion should be recorded on their parish book, and should be mutually binding on both parties ; that such apportionment should continue in force for seven years, and at the end of every seven years there should be chosen a joint committee of the parties to determine the proportion anew, according to the town valuation of every seventh year ; and that every new appointment should be binding on the parties for seven years, the committee having first noted their doings in writing and delivered a copy to each of the Pities. The plaintiffs further aver, that this covenant was adopted by the parish, and that in pursuance of the provisions therein contained, the plaintiffs and the parish built the meetinghouse, and thereupon became owners and tenants in common of the same, and by themselves and their pastors occupied the same alternately, from the time of the dedication thereof on the 12th of September, 1804, for the space of two years ; that on the 3d of January, 1805, pursuant to the covenant, a joint committee was chosen, who made an apportionment, such as to give to the parish the use of the meetinghouse for thirty-one Sundays in a year and to the plaintiffs twenty-one, and this apportionment was noted in writing by the committee and a copy delivered by them to the plaintiffs, and an other copy to the defendants, to be accepted and recorded in their parish book ; that pursuant to this apportionment, the plaintiffs used the meetinghouse until the 9th of February, 1807, when they were debarred the use of it by the parish ; that at that time there was in the hands of their common treasurer for building the meetinghouse, the sum of 1600 dollars, which, together with the proceeds of the sale of 14 pews then remaining unsold, the parish have since taken, without accounting to the plaintiffs for their proportion thereof. The plaintiffs further aver, that in 1811 they appointed a committee to meet any committee that might be chosen by the parish, for the purpose of apportioning the meetinghouse, and that the committee made application to the parish to be permitted to use the meetinghouse pursuant to the covenam and agreement before mentioned ; that the application was renewed in 1821 ; and that in 1824 they made application for the same purpose, and also for their proportion of the surplus money above mentioned, and for compensation for being debarred the use of the meetinghouse ; all which the parish refused. The plaintiffs pray for a decree of specific performance of the agreemen between the parties. They also allege, that the defendants, by their doings, have made themselves trustees in the premises to the use and benefit of the plaintiffs jointly with themselves in the proportion stated, and pray for a performance of the trust.</p> <p>The defendants answer, that they did not enter into such covenants and agreements with the plaintiffs, then members of the Independent Society, as are set forth in the bill; that the supposed covenant and agreement, alleged by the plaintiffs to have been signed and sealed on their part, was not delivered to the defendants, and was not accepted by them, and was not recorded on the parish records ; that the plaintiffs and defendants did not build the meetinghouse and thereupon become owners and tenants in common thereof, and did not use the same in common alternately for two years, as alleged ; that no apportionment of the meetinghouse was made by a joint committee for that purpose duly chosen and authorized ; that they are not bound to account to the plaintiffs for the proceeds of the pews, but they say that the whole proceeds have long since been applied for the payment of the expense of building and completing the meetinghouse ; that they did not grant the separate use of the meetinghouse to the plaintiffs upon their several applications, nor appoint committees to apportion the same, because the meetinghouse was built upon land of the parish, and has always belonged to the parish, and the plaintiffs have had no right or interest therein, except what belonged to such of them as owned pews ; that they have never been trustees in the premises, for the use and benefit of the plaintiffs in any manner; that the supposed covenant and agreement purports to have been executed by thirty-six persons, (who are named, including two only of the three plaintiffs,) and that after the date thereof and before this suit was commenced, thirteen of them (naming them) became members of the parish by joining the religious society thereof, five of them (naming them) removed from the bounds of the parish, and sixteen of them (naming them) died; that it was provided by the supposed covenant and agreement, that the persons wffio signed and sealed it should meet together annually for the choice of certain officers and the transaction of other business, and that such meetings have not been held ; that those persons did not become a separate religious society for the support of public worship, but continued to be members of the Independent Society ; and that if the plaintiffs ever had any cause of complaint against the defendants, it is barred by the statute of Imitations.</p> <p>It was agreed by the parties, that all the inhabitants of tne territory of the fifth parish, otherwise called Sandy Bay, the cape, and the head of the cape, were formerly members of the first parish in Gloucester, and that on the 1st of January, 1754, they were incorporated as a distinct parish. Before their in corporation, to wit, in 1752, they voted to build a meetinghouse, and they accordingly did build one. It was taken down and sold in 1804, and the proceeds distributed among the several owners of the pews. Ebenezer Cleaveland was ordained minister of the parish in 1755, and on his own request was dismissed in 1779. From that time there was no settled minister in Sandy Bay, until October, 1805, when the present minister of the parish was ordained.</p> <p>From 1774 there has been in Gloucester a society of uni versalists. It was known by the name of the Universalis! Independent Society, and was incorporated June 28, 1792, by the name of the Independent Christian Church. In 1788 divers inhabitants of the fifth parish had joined themselves to this society. These members met occasionally, as they had preaching, at the old meetinghouse, and elsewhere within the fifth parish. The others of their denomination used to meet at the harbor, so called, in the first parish, five miles from the old meetinghouse. The society had there a meetinghouse, owned by individuals, and a settled minister.</p> <p>There were no other denominations of Christians in Sandy Bay, until 1805. After that time there were baptists ; who were incorporated in 1811.</p> <p>From 1787 the warrants for meetings are recorded, “to the freeholders and all qualified voters of the fifth parish.”</p> <p>At a meeting March 25, 1788, it was voted to repair the meetinghouse, the parish committee to attend to the business of repairing. It was also voted, that the Independent Society have the meetinghouse every fourth Lord’s day the current year for their use, by paying one fourth part of the costs of reparation. A vote similar to this last was passed in April, 1792, and in June following it was voted, “ that the Independent Society have the meetinghouse one fourth part of the time to preach in. as long as they shall repair one quarter part."</p> <p>The inhabitants of the territory of the fifth parish, from their incorporation in 1754 until the building of the new meetinghouse in 1804, acted in the name of the fifth parish in or of Saridv Bay, as a school district, and managed their school concerns by the parish officers until 1787. Then they divided ihemselves into three wards for that year, and chose a committee of two for each ward, without regard to religious denominations. In 1790, at a meeting respecting schools, a member of the universalist society was chosen moderator; and in 1792, two of that society were added to the parish committee to regulate schools and lay out the money. In 1796 it was voted to build a schoolhouse “ on the parish land.” The expression in the warrant is, “ the land that belongs to the parish for that purpose.” It was also voted, that the parish committee, with four other persons (three of whom were universalists), should be a committee for building the schoolhouse. These votes, however, were not carried into effect. In 1797 it was voted, that any number of persons should have liberty to build a proprietors’ schoolhouse on the parish land ; and that the school committee, with the parish committee, lay out a convenient lot for the same. This school committee consisted partly of universalists. The committee set off a part of the land to the proprietors of the new schoolhouse ; which was built in shares by individuals of both societies.</p> <p>The remaining part of the land above mentioned, on which the new meetinghouse was afterwards built, was the remaining front of an acre of land granted by the commoners of Gloucester, January 26, 1725, “ to John Pool, John Tarr, Jabez Barker, and the rest of the neighborhood at the head of the cape, for the use of a school for ever,” &c. This grant and the location, and the gift, in 1765, of the reversion, in case of a forfeiture, to Rev. E. Cleaveland, are all that is to be found in the records of the commoners respecting this land. It appears by the parish records, that in 1780 it was voted, that the parish committee take care of the school land. In subsequent years there were votes requiring the parish committee to lease the land, fence it, &e. In 1807 it was voted, that the Rev. Mr. Jewett have the improvement of the parish for the current year. A similar vote was passed every year until 1813, when it was voted, that he “ should have the improvement of the parish land so long as he continues to supply the desk in this house.”</p> <p>At a meeting of the fifth parish, April 26, 1802, it was voted “ to build a meetinghouse the current year.” A committee of five, two of whom were universalists, was chosen to build the meetinghouse. It was also voted that the committee warn all the inhabitants to meet at the adjournment.</p> <p>Pursuant to the above vote a warrant was issued, to warn “ the freeholders and other inhabitants of both societies in the fifth parish.” A meeting was held May 11, 1802, when it was voted “ to record the word inhabitants for the word parish that is used in the warrant;” and “ that the inhabitants will build tire meetinghouse on the land belonging to the inhabitants, adjoining to the new schoolhouse land in Sandy Bay.” The meeting was adjourned to May 25, when it was voted, “ that the Independent Society build the new meetinghouse according to their town valuation, with the other society called the fifth parish in Gloucester ;” — “ to build and improve the house according to the town valuation — “ to take the valuation by the town valuation and in the year 1803.” The building committee were directed to proceed in the execution of the work. They purchased materials in 1802, 1803, &c. and hired money on their own credit, and built and completed the house.</p> <p>On the 4th of July, 1804, pursuant to a warrant issued by the parish committee, to warn “ the freeholders and odier inhabitants of both societies in Sandy Bay,” a meeting was held, at which a committee of five (who were members of both societies) was chosen to appraise the pews before the time of sale. It was voted, “ that the pews be set up at the appraisal and struck off to him who shall offer the most money above the appraisal, being an inhabitant of Sandy Bay.” Three persons, two of them universalists, were chosen a committee to sell the pews and give conveyances of the same. At an adjourned meeting, July 9th, F. Norwood jun. was chosen treasurer to receive the moneys arising from the sale of pews. The 19th of July was appointed for the sale. The sum of the appraisals was 8871 dollars, the estimated cost of the house, The amount received by the treasurer for the pews sold was 9009 dollars. Of 121 pews sold in 1804, 50 were bought by universaVsts. In 1807 the defendants sold the rest of the pews (16 m number), appraised at 1135 dollars in the whole, at a small advance above the appraisal. The bell and clock now in the meetinghouse were purchased by the defendants with part of the money thence received.</p> <p>On the 1st of February, 1805, a warrant was issued to warn the freeholders and other inhabitants of the fifth parish qualified to vote in town meetings, “ first, to see if said parish will accept in toto a certain instrument containing articles of agreements entered into by certain individuals of the Christian Independent Society, relative to their building and improving the new meetinghouse with said parish, and record the same on the parish book. Secondly, to know if said parish will accept the report of the joint committees of the fifth parish and of the proprietors of the Independent Christian Society, in which they have agreed on the proportion of time each society is entitled to improve respectively the new meetinghouse.” On the 18th of February the parish voted not to accept of this instrument, nor of the report of this joint committee.</p> <p>At a parish meeting, March 7, 1805, it was voted, “ that the parish committee agree with the committee of the Independent Society, and know how each society is to improve their proportion of time, and make report at the adjournment.” The record of the adjourned meeting, March 25, states, “ that the committee did not make any return of their doings as respects the Independent Society.” On the 17th of March, 1806, the parish voted, “ that the parish committee notify the committee of the Independent Society to meet with them, and at such meeting of the two committees said parish committee allow said Independent Society to improve the meetinghouse in proportion to what said society owns in said house, the current year.” The committees had a conference, and the universalista rejected the proposition.</p> <p>On the 5th of February, 1807, the parish voted, “ that the parish committee keep the keys of the meetinghouse in their possession, and not deliver them to any person or persons whatever, nor open the house unless it be for public worship, or to transact parish concerns in; ” and the parish officers have governed themselves by that vote to the present time. The new meetinghouse was dedicated in September, 1804, and for about two years was used two Smidays in five by members of the Christian Independent Society. There was no settled minister at Sandy Bay in 1802 and 1803, and a universalist minister has never been settled there.</p> <p>The universalists appointed committees for apportioning the meetinghouse, and made demands for the use of it, as stated in the bill.</p> <p>Since the year 1803 some inhabitants of the parish have joined or returned to the universalist society in Gloucester, others have become members of the baptist society, and some universalists have returned to the parish society.</p> <p>The parish committees called the parish meetings and the inhabitants’ meetings respecting the meetinghouse, &c. aftei the first meeting in 1802, which was called on a justice’s warrant. The records of all the meetings before referred to were made by the parish clerk.</p> <p>The support of public worship in Gloucester has been by taxes on polls and estates, or voluntary ; never by assessments on the pews, or shares in the houses of public worship.</p> <p>The universalists who were proprietors of the meetinghouse, have held meetings as set forth in their records, beginning February 17, 1804, but the defendants objected that these records were not admissible in evidence. It appeared from them, that such universalists met at different times from February 17, 1804, to February 25, 1811, (once, in 1805, in the meetinghouse,) and took measures for procuring an apportionment of the meetinghouse.</p> <p>On the 26th of February, 1821, a number of persons met at the house of Manning (one of the plaintiffs), for the purpose of forming a religious society, and chose a committee to draft a constitution. They met by adjournment on the 2d of March, when the constitution was reported and accepted, and again on the 9th of March, when they chose a clerk, treasurer, and committee; also a committee to give notice to the Christian Independent Society in Gloucester of the establishment of the Universálist Benevolent Society, and to request the Christian Independent Society to discharge Aaron Poole and others. They have met every year since, and chosen officers for the year. In the constitution they recite, “ that being in part the remainder of that portion of the Christian Independent Society of Gloucester, who heretofore, in the year 1802, formed ourselves into a body, by joining as pro prietors toward building a house of public worship, &c. with and by the request of the fifth parish, &c. and other members who have since joined us, considering the distance we are from said Christian Independent Society’s meetinghouse at the harbour, so called, and presuming on the free consent of the said society that we should separate therefrom and become a society of ourselves, — and in order to improve what property we may have in common with said fifth parish in said meetinghouse in Sandy Bay, and other conveniences and appurtenances there, — we do hereby engage to conform to such rules,” & c.</p>

<p>Where the damages occasioned by laying out a road were estimated by a committee, and their report was accepted by the Court of Sessions, but the road was not worked before the St, 1825, c, 171, took effect, it was held, that the commissioners appointed.under that statute having determined to construct the road, it was theii duty to estimate the damages anew, in order that they might be paid by the county.</p> <p>It was held also, that by St, 1827, c, 77, (repealing the former statute,) the authority of the Commissioners over such road continued until it snould be finally and conclusively acted upon by them.</p>

<p>This was an action of assumpsit upon the following agreement, subscribed by the defendant and others, in April, 1826, viz. “ Whereas it is proposed to establish manufactures in Salem, and with a view to that object an act of incorporation has been obtained, entitled An Act to incorporate the Salem Mill Dam Corporation, — we, the subscribers, severally agree o take the number of shares of the capital stock in said corporation which are affixed to our respective names, and to pay all such legal assessments on each of said shares as shall be made by the future government of said corporation, after the same shall have been organized according to said act; it being understood, that in case more than five thousand shares shall he subscribed for, the committee under whose direction this subscription is opened, shall reduce them to that number, in such a mode as they shall think equitable. ”</p> <p>The act of incorporation referred to, (St. 1825, c. 148, passed on the 4th of March, 1826,) provides, in the 4th section, “ that the capital stock of said corporation shall be divided into five thousand shares, not exceeding one hundred dollars each.” The 6th section provides, “that the said corporation, or its officers duly authorized by its by-laws, may, from time to time, make assessments upon the shares subscribed for, until the whole amount of the said capital stock shall be paid m. And if the proprietor of any share shall refuse or neglect to pay any assessment for the term oí thirty days from the time appointed therefor, the share or shares of such proprietor may be sold by public auction. In the 7th section it is provided, that the persons named in the act, or any two of them, shall call the first meeting of the corporation, by giving notice in one or more of the Salem newspapers ; “ and at said meeting there shall be chosen, by a majority of votes, a clerk or secretary, who shall be duly sworn to record the doings thereof ; and any act or acts may be done for the purpose of organizing the said corporation, and arranging its affairs ; at which meeting every person shall be entitled to one vote for each share owned by him. And the number, powers and duties of the several officers, agents and servants of said corporation, together with the time and manner of choosing and appointing them, and the number of votes to which the shares of each member of the corporation shall entitle him at future meetings, may be regulated by the by-laws. Provided, however, that no meeting as aforesaid shall be called before one thous- and shares shall be subscribed for ; and provided also, that no proprietor shall be entitled to more than twenty votes.”</p> <p>In the 9th section it is enacted, that if at any time the corporation shall use the water power to be created by them, for the purpose of carrying on manufactures, the corporation shall be subject to the provisions of “ an act defining the general powers and duties of manufacturing corporations,” except that the liability of the members, in their individual capacity, for the debts of the corporation, is to terminate, unless such debts shall be put in suit against them within one year after they shall have ceased to be members.</p> <p>At the trial, which was before Putnam J., it appeared that the defendant had subscribed for twenty shares. On the 17th of May, 1826, the first meeting of the stockholders was held, when the act of incorporation was accepted by a unanimous vote, and the corporation was organized according to the act. The report of the committee for obtaining subscriptions was laid before the meeting, stating that the number of shares subscribed for was at that time twenty-three hundred and seventy-eight, and recommending that subscriptions should not be received after the whole number of shares subscribed for should amount to three thousand. Additional subscriptions were subsequently obtained, so that on the 4th of September, 1826, the whole number of shares subscribed for was twenty-six hundred and eighty-seven ; and this number was never afterwards augmented. On that day the first assessment, being three dollars on each share, and for the defendant’s proportion of which this action was brought, was laid by the directors, pursuant to the by-laws, to be paid into the treasury of the corporation on or before the 13th of September. At a meeting of the directors on the 24th of October, it was voted to proceed in the erection of the dams, whenever available funds to the amount of 250,000 dollars should be obtained. One hundred and twenty-five of the' shares subscribed for were then supposed to be insolvent and not available. The defendant was then a director, and a large sum of money had been expended by the board of directors, and many contracts had been made by them. The defendant was present at the first meeting of the stockholders, and likewise usually attended the subsequent meetings of the corporation.</p> <p>The defendant moved for leave to prove that the sum for which subscriptions had been obtained,' was insufficient to complete the work undertaken; but the motion was overruled.</p> <p>The books and records of the corporatiofi and directors made a part of the case.</p> <p>According as the opinion of the Court should be upon the foregoing statement, a default or nonsuit was to be entered, or a new trial granted.</p>

<p>Assumpsit. The plaintiffs prpved that they were incorporated (by St. 1825, c. 164) for the purpose of building a bridge over Merrimack river; that the defendant, on the 14th of March, 1826, and before the first meeting of the corporation, subscribed the agreement upon which the action was brought, to take thirty shares in the stock of the corporation, and to pay the assessments when called for by the treasurer of the corporation, agreeably to the act of incorporation and the by-laws which might thereafter be made, provided the same should not exceed forty dollars on a share. The corporation was organized on the 24th of March, and an assessment of five dollars was laid, which the defendant paid. An assessment of ten dollars was afterwards laid, to recover which this action was brought.</p> <p>The 5th section of the act of incorporation provides, that the stock shall be “ divided into one thousand sharesand the counsel for the defendant contended, among other things, at the trial, that it was incumbent on the plaintiffs to show that the stock had been so divided. But in this they were overruled. They likewise offered to prove that the whole number of shares had not been taken up , but this evidence was rejected.</p> <p>A verdict was found for the plaintiffs.</p>

<p>Where two persons build a ship together, to be owned by them in certain propoi. tians, and one advances more than his proportion of the expenses, he has no lien on the ship for the balance due to him, but the interest of the other in the ship, at east to the extent of his advances, is liable to attachment at the suit of other creditors.</p>

<p>A testator directs his executor to appropriate towards the support of a school, all the income of twenty-seven shares in one bank, ten and a half in another, and fifteen in an insurance company. When he made the will, he owned just so many shares in the two banks and the insurance company, but before his death he sold his twenty-seven shares in the first-mentioned bank. It was held, that the legacy was specific, and that the sale was an ademption pro tanto.</p>

<p>The owner of the soil over which a turnpike road is laid out, may maintain trespass against the servant of the corporation for taking the herbage.</p>

<p>This was an action of the case, founded upon St. 1786, c. 81, § 7, to recover double damages for an injury sustained by the plaintiff, by reason of a certain highway in Andover being suffered to be out of repair and encumbered b) a large stone.</p> <p>At the trial it appeared, that the way was a town-way, laid out by the selectmen of Andover, and accepted by the inhabitants of the town.</p> <p>The defendants contended that an action does not lie upon the statute for an itijury sustained in a town-way. By consent of parties a nonsuit was directed, subject to the opinion of the whole Court.</p>

<p>Where a testator bequeathed to his wife, “ all rents in arrear on her real estates,** memorandums written and signed by him were admitted in evidence, to show that he included in those terms, not merely rents unpaid by the tenants, but all the money he had ever received for rent, or otherwise, belonging to his wife, with interest</p>

<p>Trover for machmery, goods and chattels. Trial before Putnam J.</p> <p>It was admitted that the plaintiff was once the owner of the property. Moody Bridges, a deputy of the defendant, and for whose alleged default this action was brought, attached it on several writs as the property of William Scholfield, and the defendant contended that the plaintiff had sold and disposed of it in such manner as to render it liable to Seolfield’s creditors.</p> <p>It was proved that the machinery belonged to a cotton facory in Andover, and that the plaintiff gave Scholfield possession of the real estate or factory by turf, &c. and permitted him to enter and have the actual possession of the machinery,</p> <p>&c. Scholfield then made such alterations as his convenience required, put up new lathes instead of the old ones, and made alterations in the looms, and in other respects managed as if he had been the owner of the property. He sold some of it, and received the payment for it.</p> <p>Evidence was produced of declarations of the plaintiff to different witnesses, at different times, that he had sold the factory, machinery, &c. to Scholfield. These declarations were objected to on the part of the plaintiff as incompetent evidence, but were admitted ; and his counsel then undertook to explain them in this way, viz. that there had not been an actual sale, but an agreement for a sale, accompanied indeed with immediate possession, but without any change of property. And they • proved by Hobart Clark, Esq., ^mt the plaintiff and Scholfield together consulted him, and finally agreed that the plaintiff should give a bond to Scholfield to convey the factory, &c. A bond was accordingly given, dated August 13, 1824, by the plaintiff as principal and one Adams as surety, in the penal sum of 18,000 dollars. The condition was, that whereas Ayer “ has agreed to sell and convey ” to Scholfield, a woollen factory, &c. for the sum of 9000 dollars, to be paid by instalments, the first of which was payable on the 1st of February, 1825, anil the last on the first of April, 1828, with interest to be paid annually, according to the tenor of certain negotiable promissory notes given by Scolfield to Ayer, of even date with the bond ; “ and whereas it is agreed that the said Scholfield shall enter, improve and occupy the said real estate with all the machinery and other property belonging to the factory, dye-house, and gristmill, &c. and have quiet possession and enjoyment thereof so long as he shall continue to pay his said promissory notes as the payments become due, and no longer ; — now if the said Ayer, &c. shall permit and suffer the said Scholfield, &c peaceably and quietly to enter, improve, occupy and enjoy all the estate and property above mentioned, according to the terms and conditions aforesaid, without any manner of let, suit, trouble, &c. and if the said Ayer, &c. shall make, execute and deliver to said Scholfield, &c. a good warrantee deed of all the aforementioned estate and property, free and clear from all incumbrances, so soon as can be accomplished after all the aforesaid notes are paid, then this obligation to be void,” &c. It was then argued by the plaintiff’s counsel, that after the agreement had been executed and possess! in had been given in virtue of its provisions and conditions, it was in a popular sense true, that the plaintiff had sold out the factory, &c. to Scholfield, and it could not be expected that the plaintiff would have told the great number of people to whom he mentioned the sale, the particular terms and conditions at tending the same.</p> <p>The counsel for the plaintiff offered to inquire of a witness, whether it was not understood in the neighbourhood that the plaintiff had given only a bond, and not an actual conveyance of the property. This was objected to and not permitted. But the plaintiff was permitted to prove, if he could, that any of the attaching creditors knew the situation of the property ; and evidence was introduced tending to show that Bridges, the deputy sheriff, and some of the creditors, were acquainted, before the suits were commenced, with the terms of the contract beween the plaintiff and Scholfield.</p> <p>It was contended on the part of the defendant, that the plaintiff was estopped, in regard to the attaching creditors, from saying that he had not sold the property, or that it was not Scholfield’s.</p> <p>The jury were instructed, among other things, that if, from the evidence, they were satisfied that the plaintiff had delivered the goods to Scholfield, and permitted him to have them in such manner as induced the attaching creditors to give him a false credit, and that they trusted him upon the belief which the plaintiff had caused them to have, that the machinery at the factory belonged to Scholfield, their verdict should be for the defendant, notwithstanding, as between the plaintiff and Scholfield, the latter (not having performed the conditions) could not have compelled the former to execute a conveyance according to the bond ; — that if the attaching creditors knew the situation of the property, and that only a bond for a conveyance, and not an actual conveyance, had been given, they could not recover on the ground of the plaintiff’s having permitted Scholfield to have the possession of the property, and if the jury should be of opinion that the creditors had such knowledge, their verdict should be for the plaintiff, unless they were satisfied that the bond and agreement were not bond fide, but made with intent to defraud creditors ; — and that as to those persons who trusted, knowing the situation of the property, no false credit could be said to have been held out.</p> <p>The jury found a verdict for the plaintiff for 18 dollars damages for one article, which had been only lent to Scholfield, but in regard to all the other articles mentioned in the writ they found the defendant not guilty. The plaintiff moved for a new trial.</p>

<p>The holder of a promissory note, falling due on Sunday, asked the indorser, on Saturday, if it would not be best to call on the two makers, who lived about twenty miles from the holder, and who were wholly insolvent ; to which he replied, that it would be of no use. On Monday it rained very hard. On Tuesday the holdei made a demand on one of the makers, and took a letter from the indorser, datec on Monday, addressed to the other, stating that the indorser had been called upon to pay the note, and requesting this other maker to attend to it as soon as possible; but he had absconded, having before the note fell due made a mortgage to the indorser; which however proved to be of no value. It was kelds that if a demand on Monday would have been seasonable, the rain furnished no excuse for not making one on that day,; but it was also held, that the jury would be warranted in in* ferring that the indorser had waived a demand.</p>

The defendant executed and delivered an instrument under seal, dated December 2, 1825, in which, after reciting that the plaintiff had conveyed to him all his real and part of his personal estate, he covenants to sell the same on or before the 1st of April, 1826, and to apply the proceeds to the payment of the plaintiff’s debts, and to pay over the. residue, if any, to the plaintiff on or before the 1st of May, 1826. Upon this covenant the present action was brought.

<p>Writ of entry. The parties agreed, that on the 26th of March 1793, one Samuel Downing, being seised in fee of the land which includes the demanded premises, conveyed the same to Zebediah Shattuck. Shattuck, by deed dated March 28, 1808, conveyed a part of the same, by metes and bounds, to Z. Shattuck junior, his son. On the 11th of July, 1823, Shattuck and Shattuck junior conveyed all the land described in the deed first mentioned, to the plaintiffs, by a deed of mortgage, which was sealed and delivered by both, rut acknowledged by Shattuck junior only, and was recorded the 14th of the same July. The land demanded is included in that part of the Downing farm, which belonged to Shattuck senior at the date of the mortgage. This mortgage was given as collateral security for a bond executed by the two grantors in 1806, and the covenants of seisin, freedom from incumbrances, and warranty, as to the whole of the premises, are made by them jointly.</p> <p>On the 1st of May, 1824, the land in controversy was attached, at the suit of Mary Barnard, as the estate of Shattuck senior, and her execution in that suit was duly levied on the same, October 21, 1824. The tenant is in possession under a quitclaim' deed duly executed by M. Barnard. No other evidence appears, that at the time of the attachment she or the tenant had notice of the mortgage, than the presumption resulting from the registry of the same.</p> <p>If on these facts the Court were of opinion that the demandants were entitled to recover, the tenant was to be defaulted ; otherwise the demandants were to be nonsuited.</p>

<p>Trover for a promissory note made by one Rogers to the plaintiff, dated December 3, 1823.</p> <p>The defendant pleads in abatement, that the plaintiff, before and at the time of the purchase and service of the writ, was and now is under coverture of Peter Abbot, her husband, who is now living at Chester, in the State of New Hampshire.</p> <p>The plaintiff replies, that at the time of her intermarriage with Peter A. on the 7th of March, 1782, he was a native citizen of New Hampshire, and at that time and long before was resident at Kingston in that State ; that in 1805, he, by his cruel treatment of the plaintiff, drove her from Kingston, the place of their residence, without any means of necessary provision or support, and that he has never since that time corresponded with her nor in any manner provided her with any support, but she has lived separate and apart from him, within this commonwealth, and maintained herself by her labor as a single woman ; and further, that he, from the time of their intermarriage to the present time, has continued a citizen of New Hampshire and resided therein, and after the expulsion of the plaintiff from his house, to wit, August 9, 1805, he, according to the form of law in that State, married one Susanna Mills, with whom he has ever since cohabited and now cohabits, and by whom he has had several children ; she further says, that the note in question was given to her as the proceeds of her labor since her separation from her husband and that she has no other means of subsistence than her daily labor.</p> <p>The defendant rejoins, that the husband, from the time of his birth, has been and now is a citizen of the United States, and now resides therein, and has not at any time renounced or abjured his allegiance and fidelity to the United States, or been exiled, outlawed, or banished from the United States, or in any other way released or discharged from his allegiance thereto.</p>

<p>This was a complaint to the Court of Common Pleas, pursuant to St. 1795, c. 74, alleging that the complainant’s land was flowed by reason of the respondents’ mill dam, and praying that a jury may be summoned to appraise the yearly damages done to the complainant by the flowing, and how far the same may be necessary.</p> <p>The respondents, in their plea, say that the complainant ought not to have a jury summoned, for that the respondents were incorporated by St. 1822, c. 25, and by the same statute were authorized to build and maintain for ever a mill dam across Chebacco river at the height of the surface of the marshes, and thereby to admit and detain the tide waters at all times of the year at that height, and that under this authority they built and have maintained a dam of that height and no higher, and thereby admitted and detained the tide waters, as they lawfully might, by which dam the flowing, if any, has been occasioned ; and they say that the complainant’s remedy therefor, if any, should be by an action at common law, and not by the process under the statute of 1795.</p> <p>The complainant replies, that the corporation were authorized to build and maintain a dam, &c. provided they should make a waste gate twelve feet wide, and eighteen inches deep from the top of the dam, which should be kept open at all times when the high marshes should be flowed above the dam, and he avers that the corporation have never made such a waste gate.</p>

<p>Assumpsit for money had and received</p> <p>Upon a case stated it appeared, that the plaintiff, on the 1st of May, 1825, was an inhabitant of Danvers ; that he seasonably exhibited to the assessors for the year a list of his estate ; that the several items in the list amounted, according to the valuation of the assessors, to 8,350 dollars ; that to this sum the assessors added 18,000 dollars, which they estimated as the value of personal property of the plaintiff not mentioned in his list, and which was then invested in a mercantile establishment for the transaction of commission business in the city of New York, in the name of the plaintiff and owned by him, but manage^ by his son as his agent; that upon this valuation, amounting to 26,350 dollars, they assessed him, for town and county taxes, in the sum of 81 dollars and 48 cents ; that before the commencement of the action the plaintiff paid this sum, pursuant to a warrant issued to the collector of taxes for Danvers, and with a view to the institution of process to recover back 55 dollars and SO cents, (the proportion assessed on the 18,000 dollars,) on the ground that it was assessed on property for which he was not liable to be taxed in Danvers. From depositions in the case it appeared, that for several years'the plaintiff had had a large amount of property under the care of his agent at New York, which was employed in making advances upon goods consigned for sale, and that the profits of the business, accruing from interest on the advances, and from commissions, were not withdrawn, but were added to the capital.</p> <p>If the Court should.be of opinion that the plaintiff had maintained his action, judgment was to be rendered in his /avor for such sum as the Court should order ; if otherwise, he was to become nonsuit.</p>

<p>A town which acts also as a parish, may raise money to repair a meetinghouse as a compensation foi the use of it for municipal purposes, or to pay a sexton for ringing the bell fat town meetings, but such design should appear in the vote 5 for primé facie, money to repair a meetinghouse, or for the pay of a sexton, is for parochial and not municipal purposes, and cannot be assessed on such inhabitants as are not members of the parish.</p>

<p>A complaint under St, 1785, c, 66, § 2, for the maintenance of a bastard child, par takes of the nature both of a criminal and a civil suit, and in the city of Boston it is cognizable by the Police Court and the Municipal Court.</p> <p>Where upon a petition for certiorari, it appeared that the proceedings upon such complaint were before and by the authority of the “Justices’ Court for the county of Suffolk and of the Police Court for the city of Boston,” it was held, that as the same persons were the justices of both of these courts, they must be presumed to have acted as justices of the Police Court, and the description of the other court might be rejected as surplusage.</p> <p>The minute interest which the justices of the Municipal and Police Courts in Boston have, as inhabitants, in such a prosecution, does not disqualify them for taking cognizance thereof, there being no other court within the city, which has jurisdiction in such cases.</p> <p>The statute does not require that the complainant in such a prosecution shall be an inhabitant or have a legal settlement in any town in the county in whiih the prosecution is instituted.</p>

<p>The justices of the Justices’ Court for the county of Suffolk have authority to estab. lish certain days in the week as regular term days of that court, and to continue actions from term day to term day.</p> <p>Where the defendant in an action in that court was defaulted in consequence of the clerk’s forgetting to enter his appearance on the docket, but no judgment was entered up, it was held that the justices had power, at their discretion, at a subsequent term day, to take off the default, and to order the cause to stand for trial.</p>

<p>Where one, being under a recognizance to keep die peace, committed a breach of the peace, for which he was indicted and fined, it was held that he was nevertheless liable to an action for the penalty of the recognizance.</p>

At the term of this Court held at Nantucket in July 1827, the plaintiffs recovered a verdict for 5,337 dollars, in an ac tian brought for an alleged breach of contract on the sale of two parcels of oil, one of 1000 barrels, the other of 50,000 gallons, which oil was warranted by the defendant to contain twenty-eight parts in a hundred of head matter, and to be of a fair merchantable quality.

<p>A. plaintiff cannot be nonsuited against his consent, if he insists on his right to appear when called. Semble.</p> <p>Where a ship insured was surveyed during the voyage and condemned as not worth repairing, and in an action upon the policy, the underwriters defended on the ground of unseaworthiness, it was held that the production of the survey was not essential to the support of the action.</p>

<p>This case was argued at the last March term, by Dart-left, for the trustees, and F. Dexter, for the plaintiff; and at this term the opinion of the Court was delivered by</p>

<p>If the subject of a specific legacy is in the possession of the legatee at the death of the testator, the acquiescence of the executor in such possession is sufficient to vest the property in the legatee, if there are assets enough to pay the debts, without any formal assent.</p>

<p>Assumpsit on a policy of insurance, dated November 11, 1824, by which the defendants caused the plaintiffs to be in sured 9,600 dollars on the cargo, and 400 on the freight, valued at 800, of the schooner William King, at and from Havana to her port of discharge in the United States.</p> <p>At the trial before Wilde J. it appeared in evidence, that the schooner sailed from Havana on the 30th of November, 1824, bound for Castine, having on board 500 bags of coffee, 50 boxes of sugar, and six chests of tea, the whole of which, as well as a part of the vessel, was the property of the plaintiffs. After being several days at sea, she was compelled by stress of weather, the death of the mate and sickness among the crew, to bear away for the port of Charleston for repairs, and for a new crew, where she arrived on the 7th or 8th of December. Certain repairs were there made and a new crew shipped, and to defray the expenses the master sold 40 bags of the coffee for 660 dollars and 80 cents, exclusive of the duties and charges. The schooner sailed from Charleston with the remainder of her cargo, on the 18th or 19th of December, and on the 28th she was cast ashore, by stress of weather, at the Washwoods, on the coast of Virginia, about forty miles from Norfolk. She sustained no material damage by stranding. On the second or third day afterwards all her cargo was landed on the beach, with but little if any damage, where it remained until the 11th of January, 1825, when it was sold, as was the schooner also, by the wreck master, by order of the master of the schooner, for the benefit of the owners, underwriters, and others concerned. The cargo and vessel were advertised for sale in the Norfolk newspapers of the 3d of Janu ary. Having completed the sales and received the proceeds, the master went to Norfolk, where he paid the duties on the cargo to the collector of Norfolk, on the 15th of January, amounting to 5,390 dollars. From thence he proceeded to New York, where he had a wife and child. He has ever since, as it is believed, kept himself fraudulently concealed, has not paid the proceeds of the cargo and vessel to either the plaintiffs or the defendants, and neither party has been able to find him. The master and mate on the outward voyage died at. Havana, and the master on the voyage from that port was a stranger to the parties. He was appointed by the plaintiffs’ correspondents, being well recommended by the master of the ship Comet of New York, of which he was chief mate. The news of the stranding was first learned by the plaintiffs on the 8th of January, by a letter from the master, which was com municated to the defendants, and on the same day an abandonment was tendered to them and by them refused.</p> <p>No notice was given to the defendants of the schooner’s bearing away for Charleston, nor any demand made for the general average loss thereby sustained, until the 9th of March; and the papers then communicated were the bills of expenses at Charleston, and the survey and protest. The action was brought on the 16th of April.</p> <p>The plaintiffs claimed to recover for two distinct losses, a general average loss at Charleston, and a total loss by the stranding at the Washwoods.</p> <p>The defendants resisted the claim for the loss at Charleston on two grounds ; first, that there was no count in the declaration which could embrace this loss; and, secondly, that the company were not liable to be sued for it until sixty days after notice and an adjustment of it, the words of the policy being, ££ And in case of loss, &c. such loss shall be paid in sixty days after proof and adjustment thereof.” The judge however overruled the objections, reserving them as questions of law ; and the jury found a verdict for the plaintiffs for this claim.</p> <p>The defendants resisted the claim for a total loss on two grounds : —</p> <p>First, that the vessel was intentionally and fraudulently stranded by the master. But the jury found that she was stranded and totally lost without fraud or fault to be imputed to him.</p> <p>Secondly, that the cargo being landed on the beach with trifling damage, if any, and in a condition to be transported to Castine, its port of destination, it was the duty of the master thus to send it on, (and not to sell it,) if he could effect it at an expense short of one half of its value.</p> <p>The cost of the cargo at Havana (including the six chests of tea, which were a part of the outward cargo) was 12,512 dollars ; and deducting 660 dollars, the net proceeds of 40 ^a§s c°fi"ee sold at Charleston, the balance is 11,852 dollors. The gross amount of the sales of the coffee, sugar and tea at the Washwoods, was' 11,544 dollars ; from which deduct 5,390 dollars (paid for duties) and there will remain 6,154 dollars ; but deduct 577 dollars, commissions of 5 per cent, on the sales, and 300 dollars, the estimated expense of saving the property, (amounting together to 877 dolíais,) and there will remain 5,277 dollars.</p> <p>The defendants introduced evidence tending to prote, that it was in the power of the master to take on his cargo to the port of destination in four different ways. 1. By getting the schooner off and putting the cargo on board. 2. By procuring another vessel to proceed to the Washwoods and take the cargo on board. 3. By transporting the cargo by land to Norfolk, and thence shipping it to Castine. And 4. by transporting it to the North Landing or some place on the waters of Currituck Inlet, and thence shipping- it to Castine., The jury did not find which of these modes was most practicable, but they found generally that it would have cost 3,859 dollars to transport the cargo from the place of stranding to Castine, exclusive of any deduction or discount of the freight for the original voyage.</p> <p>In regard to the vessel, the master caused no survey to be made, consulted no one about the practicability of getting her off, made no attempt to that effect, nor manifested a disposi tian to make any. The same remarks are applicable as to any attempt or disposition to transship or otherwise transport the cargo to its port of destination.</p> <p>On the part of the plaintiffs it was insisted, that there was a usage to sell on the spot, goods cast on that shore, of whatever description, and particularly groceries, and that by this usage and the situation of the property at that season of the year, and under the circumstances in which the master was placed, he was authorized to sell on the beach for the benefit of all concerned. Evidence was introduced on both sides in regara to this usage, but there was no testimony that it was known to the parties, or to underwriters, merchants or navigators at Boston, at the date of the policy. The jury were in strut ted, that if they found the usage would authorize the master to sell under the circumstances proved, they might return a verdict for the plaintiffs as for a total loss, the point being reserved, under the defendant’s objections to it, as a question of law. The jury found that the usage did authorize the sale, and returned a verdict for a total loss in cargo and freight.</p> <p>The evidence respecting the usage and the expense of transporting the cargo from the Washwoods to Castine, was contained in depositions to he referred to by the Court.</p> <p>If the Court should be of opinion that the verdict, either for a partial or a total loss, was against the evidence, a new trial was to be granted. If they should be of opinion, that independent of the usage, the facts found by the jury proved only a partial loss, a new trial was to be had, or a judgment rendered for a partial loss, as the Court might order; unless they should be of opinion that the usage was sufficiently proved and was valid, so as to authorize the master to sell the cargo and thereby constitute a claim against the defendants for a total loss.</p> <p>In regard to the general average expenses at Charleston, judgment was to be rendered for the amount to be settled by the respective counsel, unless one or both of the points of law reserved on this head should be decided in favor of the defendants, or unless a previous average loss from expenses paid out of the property insured, should be considered as merged in a subsequent loss.</p>

<p>Where a question of boundaries was submitted by the plaintiff and defendants to arbl • trators, who awarded that the plaintiff had a title to the land as far as a certain line, and that the defendants, who were in possession, should give him a release of the same, it was held to be no objection to the validity of the award, that it did not direct the plaintiff to give the defendants a release of the land on the other side of the line.</p> <p>Where it manifestly appears by the submission, that the parties intended to leave the whole matter, law and fact, to the decision of the arbitrators, the award is conclusive, although they should have mistaken the law, unless the award itself refers the point to the consideration of the court.</p>

<p>An ancient book of records of the town of Boston, entitled the Book of Possessions which, although not regularly authenticated, has been preserved among the records of the town, was held (there being nothing to impeach its verity) competent and sufficient evidence to establish the ancient titles under allotments from the town.</p> <p>The owner of land bordering on a cove where the sea ebbs and flows, who is entitled, under the colony ordinance of 1641, to the adjoining flats ec to the low-water mark,” cannot always claim the flats in the direction of the exterior lines of his upland, but only in the direction towards low-water mark from the two corners ol his upland at high-water mark.</p> <p>Thus in the case of a circular cove in which there is no natural channel, if a straight line across the mouth of the cove is 100 rods in length and the circular line of high-water mark is 200, each owner of a lot abutting on the cove is entitled to run his lines from the two corners of his lot in a direction towards low-water mark, so as to include a parcel of flats, which at the mouth of the cove will be one half the width of the lot at high-water mark ; and thus each will hold his adiare in severalty.</p> <p>In the case of an ancient grant of t( all that cove, already bounded,” &c. it was held, that in the absence of all proof of ancient bounds supposed to be-referred to, the grant must operate according to the general description of the estate granted.</p> <p>In a writ of entry, upon the question whether the grantees of a cove, under whom the tenants derived their title, had ever claimed or taken possession of flats outside of a certain line, the tenants were permitted to give in evidence an ancient deed under which possession had been taken and continued to the present time, from such grantees to a third person, of a part of the flats so situated.</p>

<p>The purchaser of an equity of redemption sold by the sheriff on execution, obtains by tlie sale a seisin of the land, unless the mortgager is disseised at the time of the sale ; in which case he obtains only a right of entry, and in order to maintain a writ of entry counting upon his own seisin, he must actually enter.</p> <p><ut whether lie might not, without an entry, maintain an action by declaring specially upon the seisin of the mortgager, qucere,</p> <p>t disseisin may be effected without the actual knowledge of the owner of the land, acts of notoriety, such as putting a fence round the land or erecting buildings upon it, being constructive notice to all the world.</p> <p>Vhere in a writ of entry the tenant files a claim for improvements, and the demand-ant claims that the value of the land without the improvements may be found, it is not necessary that a special issue be framed on the possession of the tenant; and if he has not been in possession six years, the jury may find that fact as a reason for not inquiring into the value of the improvements.</p>

<p>Where in an action between partners to recover the balance due from the defendant upon the dissolution of the firm, the plaintiff obtained a verdict, but it appeared at the trial that there was one debt against the firm which had not been paid, the plaintiff was nevertheless permitted to take judgment, upon releasing to the defendant the amount of that debt.</p>

<p>Assumpsit on a policy of assurance, whereby the defend ants caused the plaintiffs to be assured 20,0,00 dollars on goods, being their stock in trade, contained in store No. 69 Washington street, Boston, against loss by fire, for the term of one year.</p> <p>At the trial it appeared, that a fire took place within the year, viz. in November, 1825, in Court street, near which the store was situated, and that by means thereof the store and its contents were in great danger. The stock, consisting of valuable military implements and jewelry, and such articles as are usually comprehended in a jeweller’s stock, was removed to places of security, and the loss and damage happening to it was adjusted and paid. While the fire raged, the store being in imminent danger and the heat so great as to render it hazardous to continue long in packing up and removing the goods, it was proposed by a witness, who was then aiding in the preser vation of the property, to procure blankets to spread on the outsid.e of the store, where it was exposed to the flames. The president of the insurance company was there, and upon being asked by Welles his opinion of it, said if it was thought to be useful, he should like to have it tried. Whereupon a bale of blankets was procured by Welles, which being wet and hung out of the windows, were of essential service in stopping the progress of the flames, and in enabling the persons in the store to remove the goods. From the state of the weather and the course of the wind, it was considered by many persons pres</p> <p>ent, that had this building taken fire, the flames would have been communicated to the old State-house, in State street, and that then the conflagration would have been very extensive. The defendants were largely engaged in insuring against fire, and at this time there was a subsisting policy for 30,000 dollars on a building near the State-house.</p> <p>The cost of the blankets used for the above purpose was 93 dollar's, and they were so nearly destroyed by the fire as to he wholly worthless. The plaintiffs paid for them, and demanded from the defendants an entire indemnity. The defendants contended, that if they were liable at all, it was only for the proportion which they had at risk upon the policy, taken in connexion with the store of which the plaintiffs had a lease for ten years, and the value of the stock over and above the sum insured upon it. The amount of the plaintiffs’ stock at the time of the loss was stated by them at 35,000. The store was estimated to be worth 5000 and the lease 5000. On these data the defendants estimated their proportion of the loss by the blankets, and they brought into court, under the common rule, a sum of money exceeding such estimate.</p> <p>If the defendants were right, in supposing that they were not liable for the loss, beyond a fair proportion calculated on the above principles, and in regard to the subjects of contribution, the plaintiffs were to become nonsuit; otherwise, &c.</p> <p>In the policy it is provided, that the “ company shall not be liable for more than the sum insured in any case whatever,” — and that “ in case of any loss, the same is to be paid without any deduction.”</p>

<p>Petition for a writ of certiorari to the Municipal Court ol the city of Boston. Vandine was prosecuted upon a by-law of Boston, passed in April, 1826, by which it is ordained, that no person shall remove, cart or carry through any of the streets, squares, lanes or alleys of the city, any house-dirt, refuse, offal, filth or animal or vegetable substance from any of the dwellinghouses or other places occupied by the inhabitants, in any cart, wagon, truck, hand-cart or other vehicle, unless such person so removing, &c. together with the cart, &c. shall be duly licensed for that employment and purpose by the mayor and aldermen, upon such terms and conditions as they shall deem the health, comfort, convenience or interest of the city require, on pain of forfeiting a sum not less than three dollars nor more than twenty.</p> <p>It was proved at the trial, that Vandine transported house-dirt and offal from the yards of houses to his cart standing in the streets of the city.</p> <p>Vandine being called on for his defence, it was agreed that he was an inhabitant of the town of Cambridge, and that he owned and kept there a large number of hogs.</p> <p>The judge instructed the jury, that the subject of the regulation was one on which it was proper for the city to legislate, it having relation to the public convenience and the health of the inhabitants, within St. 1821, c. 110, § 15, 17, and St. 1785, c. 75, § 7 ; that it was the duty of the city to remove from the streets and houses all nuisances which might generate disease or be prejudicial to the comfort of the inhabitants, and it was both reasonable and proper, that it should be in their discretion to contract with persons to perform the work, so that it might be done on a general system. If it were found nn experiment, that the duty would not be thoroughly and faithfully performed, or would be attended with more expense t0 ^he city, if individuals should remove these substances in their own carts and upon their own account, it was 'competent for the city government to enact a by-law which should subject all such persons to the vigilance of that government, and which should require them to be first licensed. He further instructed the' jury, that so far as, by virtue of the general laws of the Commonwealth, the city council had power to make bylaws for governing the city, these regúlations were binding on all persons actually resident within its limits, either for business or pleasure, and whether inhabitants or strangers ; that the object of the by-law being to secure to the city the regular and effectual removal, by the public authority, of all sources of nuisance which are collected and accumulated in the houses in the city, by not suffering individuals, under no obligation of trust, to interfere in the same, it amounted to the prohibition of a nuisance ; and that so far as it affected trade, it was not a restraint, but only a regulation of it.</p> <p>To these directions and opinions the defendant filed excep tians.</p>

<p>T having been a partner in trade with P, and the firm having occupied a store belonging to the heirs of one on whose estate T was administrator, T brought an action for money had and received against P to recover a general balance, and likewise actions in the names of the heirs, but without their knowledge, against P and himself for rent. All these suits were submitted to arbitrators, with an agreement that they should consider the rent as having been paid by T, and they awarded that a certain sum was due to him. In an action by P against T for bringing these suits alleged to be malicious, it was held that P, in order to prove malice, might show that nothing was due from him in the first suit as the partner of T.</p> <p>Held also, that the submission and award were not conclusive evidence of probable cause for bringing the several suits, nor of a waiver of P’s right to sue for damages on the ground of their being malicious.</p> <p>A witness having testified at the trial, that the partnership books were incorrect, T moved that an auditor should be appointed to audit the accounts, which motion was overruled. Held, that this was a matter within the discretion of the judge, and consequently that the refusal of the motion was no ground for setting aside the verdict.</p> <p>Held also, that although where there are mutual dealings, if one party has not an opportunity of knowing both sides of the account, he may, to effect an adjustment, sue on the debit side, without regard to the credits, yet that in the case of a partner who may examine the books, such a proceeding, accompanied with an attachment of property, may be evidence that the suit was malicious.</p> <p>Held also, that the several suits brought by T were not to be taken together as one, and therefore that a balance being found due to him upon them all collectively, did not disprove malice.</p> <p>Held also, that T, being administrator, might be considered as having implied authority to institute the suits for rent, if his purpose was fair and honest ; but that these suits, although they were not groundless, yet if they proceeded from malice, would sustain an action by P against T for malicious suits.</p>

<p>Assumpsit on a policy of insurance, made on the 17th of September, 1825, by which the defendants assured for the plaintiff, for whom it might concern, 3600 dollars on the brig Joseph and appurtenances, for the term of six months from the 20th of the same September.</p> <p>The first count alleged the insurance to have been made for the benefit of the plaintiff, William Bright and Joshua Seaver, one quarter for each, and one quarter for Porter & Greene. The third alleged it to have been made for the benefit of Seaver, and that he was interested to the whole amount insured upon the vessel. The ninth was similar, substituting Porter & Greene for Seaver. The fifth alleged it to have been made for the plaintiff’s own account and benefit, and that he was interested one quarter part in the vessel.</p> <p>A total loss happened on the 2d of March, 1826, while the vessel was on her passage from Monte Video to Boston. The defence was, that at the time of the loss no part of the vessel was owned by the plaintiff, nor by any person for whom he had caused the insurance to be made, except Bright, (who it was alleged disavowed the action,) and Seaver.</p> <p>At the time of making the policy, the vessel was owned by the plaintiff, Seaver and Bright, one fourth each, and the remaining fourth by Porter & Greene. The plaintiff acted as ship’s husband in fitting her out, and had authority to make insurance on the whole vessel. By a letter of instructions, signed by the plaintiff and Seaver, dated October 22, 1825, and delivered the same day, the care of the brig and cargo was committed to Bright, who was the master, and John Pedrick 3d, with instructions to proceed from Boston to Buenos Ayres, and there deliver the cargo. The letter adds, “having accomplished this, we wish the vessel to be sold, if it can be done at such a price as yourselves, who represent the other half of the vessel and cargo, think reasonable.” By a letter of attorney, dated the 15th of October and acknowledged before a notary public on the 21st, the plaintiff authorized Pedrick alone to make sale of his quarter part of the vessel, stating that she was then bound on a voyage to the Brazils. On the 18th of February, 1826, at Monte Video, in consideration of 1700 dollars received of Bright, Pedrick made a bill of sale of one half of the vessel to Bright and Seaver. This instrument, in the body of it, purported to be a conveyance by Pedrick personally, but was executed in the following manner : — “ John Pedrick 3d, attorney to E. Copeland jr.”, and a seal. “ Porter and Greene by John Pedrick 3d,” and a seal. There was no evidence in the case of any authority from Porter & Greene to Pedrick to sell the brig, or from Seaver to Bright to purchase any part of her.</p> <p>The plaintiff contended that Pedrick had no authority to sell his share, nor that of Porter & Greene ; that if he had authority to sell for him, it was not executed in such a manner as to pass the property ; and that Bright had no authority to purchase for Seaver. The defendants insisted that Pedrick had lawful authority to sell, and that it was duly executed.</p> <p>Two bills of exchange, one in favor of Porter & Greene for 425 dollars, the other in favor of the plaintiff for 850 dollars, were drawn by Bright on Seaver for the price agreed for the purchase between Bright and Pedrick, 425 dollars being paid in cash towards the share of Porter & Greene, and passed to their credit in Pedrick’s account with them. These bills were remitted by Pedrick-, but on presentment were not accepted, but were protested ; and they were also protested for non-payment. The protest for non-acceptance was before notice of the loss of the brig was received.</p> <p>On the 23d of March, 1827, Bright executed a sealed instrument revolting the authority of the plaintiff to claim of the defendants indemnification on account of the loss of Bright’s quarter part insured as before mentioned ; and notice of such revocation was given on the 22d of November, 1827, (pending this action,) to the defendants, accompanied with a demand in Bright’s own name for indemnification, and on the 23d to the plaintiff.</p> <p>The defendants contended, that from certain correspondence in the case between them and the plaintiff, it appeared that there was, in point of law, a ratification of the doings of Pedrick in regard to the sale of the brig ; which legal inference was denied by the plaintiff.</p> <p>In order to have the matters of law arising on trie several instruments settled, as also the effect of the correspondence, a verdict was taken for the plaintiff, subject to the opinion of the Court.</p>

<p>Where the defendant sold the plaintiff a grocery store for a sum of money stated in the deed, and agreed verbally not to carry on the same kind of business within a certain distance, it was held to be a sufficient consideration for this agreement, that the plaintiff was thereby induced to make the purchase, if eld also, that such agreement was consistent with the deed and did not relate to the conveyance of land, and so might be proved by paroi evidence.</p> <p>The jury may be asked by the judge upon what grounds they have returned their verdict, and if by their answer it appears that they have proceeded upon an erroneous principle, the verdict may be set aside.</p>

<p>In November, R, in contracting to build a ship for G, agrees to find all and do all in the carpenter’s line, and to launch the ship and deliver her to G in September following,- G stipulating to pay for her a certain price per ton in thirty days aftei the delivery ; and in another instrument of the same date, R leases his ship-yard to G, and covenants, as soon as the keel shall be laid, to execute a bill of sale of the ship, before G shad De liable to make advances. G and one L, on the same day, agree that the ship is for their account and risk, and that they will sustain their respective proportions of profit and loss. On the 12th of May following, in consideration of advances made by G and to secure him against loss, R executes to him a conveyance of all the lumber and materials in the yard, and covenants to apply them to the building of the ship ; but this instrument is made before the keel is laid. On the 20th of May, the keel being laid and the stem and stern posts raised, R, to secure the performance of the contract of November to build a ship, executes to G a conveyance of “ the keel and other parts of an unfinished vessel, being the same vessel contracted to be built by the instrument of November,” with a lease of the ship-yard, and makes a symbolical delivery ; and die instrument contains a condition, that if G shall neglect to fulfil his part of the contract, the conveyance shall be void, and likewise a covenant by G, that R shall have free ingress into the yard to finish and launch the ship. Held, that these contracts were not fraudulent per se9 nor uníawful ; that the contract of May 12th was inoperative as a conveyance of the ship ; but that by virtue of the contracts of November and of May 20th, the property in the keel vested in G, subject to the condition mentioned, and drew after it all the subsequent additions ; and that an action of trespass against a sheriff who afterwards attached the ship on the stocks as the property of R, was rightly brought by G and L jointly.</p>

<p>Trespass against the defendant for taking and carrying away certain lumber and materials alleged to be parts of an unfinished ship. The defendant, as a deputy sheriff, on the 8th of August, 1826, attached these articles as belonging to Edward Rogers and Henry Rogers, and the question was, whether the property was in the plaintiffs (Glover and Lap-ham) at the time of the attachment.</p> <p>At the trial, before Wilde J., the several instruments men tioned in the preceding cáse were given in evidence. The plaintiffs also offered to prove, that within a few days after the 20th of May, 1826, a delivery was made to Glover of the lumber and materials, and of the unfinished ship, and that a considerable portion of the materials claimed in this suit was at the time of the attachment, partly or wholly finished and fitted to be applied to the ship. And they showed that advances had been made to the Rogerses on account of the ship, of 1000 dollars prior to the bill of sale of May 12th, and of 5,800 prior to the attachment.</p> <p>To show that the materials and lumber claimed in the suit were in the ship-yard at the time of the execution of the bil of sale above mentioned, the plaintiffs produced a schedule, and offered to show by H. Rogers, that a day or two after the attachment the witness and Glover went into the yard with the view of identifying and distinguishing such part of the lumber and materials as were in the yard on the 12th of Ma) and were comprehended in the bill of sale, and that the witness thereupon carefully selected the same, and Glover, in his presence, set down the same in writing, article by article ; which schedule was produced and identified by the witness, but inasmuch as he said, that after the lapse of time which had occurred, he could not testify from his present recollection that the articles were in the yard on the 12th of May. and that the perusal of the schedule did not refresh his recollection, the judge refused to allow the schedule so identified to be read to the jury. The judge being also of opinion, that upon the evidence produced and offered to be produced by the plaintiffs, this action could not be maintained in the joint names of Glover and Lapham, a nonsuit was entered, with a view of reserving these questions for the consideration of the whole Court.</p> <p>Shaio and Bartlett contended that the materials for the ship passed to Glover by the terms of the contract, or if not, that they passed as appurtenant to the ship ; and in either case, they became the joint property of the plaintiffs, Lapham being a dormant partner. Woods v. Russell, 5 Barn. & Aid. 942.</p> <p>On the point that the evidence rejected was admissible, they cited Union Bank v. Knapp, 3 Pick. 96 ;1 State v. Rawls, 2 Nott & M'Cord, 331.</p> <p>Rand and Morey, contra, cited Clough v. Woods, 5 Serg. & Rawle, 282:—Mawman v. Gillett, 2 Taunt. 326, note ; Lucas v. Be La Cour, 1 Maulé & Selw. 249.</p>

<p>Where in trespass de bonis asportatis the defendant pleaded the general issue, and filed a brief statement alleging that as an officer he attached the goods as the property of a stranger, it was held that the plaintiff was entitled to the opening and closing argument before the jury, notwithstanding the defendant admitted at the outset that the property was once in the plaintiff and assumed the burden of proving a transfer to such stranger.</p>

<p>An officer having a joint execution against two whose several property he attached on the original writ, is not bound to levy equally, so far as may be practicable, on tile property of each, but may levy on any of the property attached, without regard to a second attachment made by him at the suit of a creditor of one of the same defendants.</p> <p>Where an officer unlawfully refuses to levy an execution upon money m his hands, the remedy is an action on the case, and not assumpsit for money had and received.</p>

<p>This was an action of debt upon a judgment recovered against Williams and Fiske, the two defendants, in the Superior Court in Georgia.</p> <p>The defendants plead,</p> <p>1. Nul tiel record, concluding to the country ; to which the plaintiffs demur, assigning for cause that the plea ought to conclude with a verification.</p> <p>2. That neither of the defendants was served with process, or had notice of the original action, or appeared thereto, or authorized any person to appear for him.</p> <p>3. That Fiske, one of the defendants, never was an inhab ant of Georgia or resident therein, was never served with process, and never had notice of the original action nor appeared thereto.</p> <p>To these two pleas the plaintiffs reply, that the defendants are estopped by the record in Georgia from denying notice, appearance, &c. On oyer prayed and granted, this record is set forth; whereupon the defendants demur to the replication.</p> <p>4. Nil debet; to which the plaintiffs demur.</p> <p>By the record it appeared, that the plaintiffs commenced s suit in Georgia, in May, 1824, against Williams and Fiske, as late copartners under the firm of E. Williams & Co. The officer’s return, dated May 4, 1824, was as follows:—“I have served a copy on Edward Williams, Abijah Fiske not to be found in the county.” The plea, filed July 15, 1824, was :—“ And the said Edward Williams, by William W. Gordon his attorney, comes, &c. and saith that he did not undertake,” &c. In another part the record states ;—“ After-wards, to wit, on, &c. came the within named Henry Hall, &c. as well as the within named Edward Williams and Abijah Fiske within named by their attorney within named, and the jurors, &c. upon their oaths say, &c. Therefore it is considered that the said Henry Hall, &c. do recover against the said Edward Williams and Abijah Fiske the damages aforesaid by the jury aforesaid, in form aforesaid, assessed,” &c.</p>

<p>The facts in this case and the points argued, are sufficiently stated in the opinion of the Court. Besides several of the authorities there cited,</p>

<p>Where a promissory note on demand, with interest under the legal rate payable semiannually, made by H 8c C, copartners, in the name of the firm, to C or his order, was indorsed to the plaintiff after six months as collateral security for money borrowed by C, it was held, in an action against H, the surviving partner, that under those circumstances the plaintiff took the note subject to all the equity existing against it in the hands of C, the payee.</p>

<p>Replevin for ten boxes of sugar. The defendant, who was a deputy sheriff, pleaded that the sugar belonged to Fair-field and Holland, and that he attached it as their property. The plaintiff replied that the property was in himself; and issue was joined thereon. A trial was had before Parker C. J.</p> <p>On the first of February, 1827, preceding the attachment, the sugar belonged to the plaintiff and one Sears. The plaintiff claimed title to the whole by virtue of a sale made to him by Sears after it was attached, and he relied upon the testimony of Sears; who was objected to as being interested in the event of the suit, but he having stated that he had then no interest, having sold his half of the sugar to the plaintiff for one half of the supposed value, and that he was in no way accountable to the plaintiff if he failed to maintain his title, he was admitted.</p> <p>Sears testified, that on the first of February he sold the sugar to Fairfield on the express condition that he should give a promissory note for the price, with Holland as an indorser. The sugar was delivered to Fairfield by the clerk of the witness, in his absence from the store, and nothing was said at the time respecting the condition. The plaintiff was in New York at the time of the delivery, and no note was given. The witness stated that he did not know of the delivery until the next day. A bill of parcels, not receipted, was given to Fair-field when the sugar was taken away from the store. The witness testified that it had been usual for him, and he supposed it was for others, to deliver goods before the security was given. No 'demand of the note was made until after the attachment, which was eight days after the bargain and delivery. Afterwards the plaintiff applied to Fairfield to furnish the note, or to give up the sugar ; which he said he was unable to do, but would, if the creditors who had attached, would consent. The plaintiff also applied to Holland to indorse a note, which he declined. It was testified by Fairfield, that he and Holland were secret partners ; but Sears testified that this was not known to him when he made the sale ; that he asked Fairfield whether Holland was his partner, and was answered that he was not, but soon would be. They were in fact, however, secret partners at that time.</p> <p>The principal question at the trial was, whether the sale by Sears to Fairfield was absolute or conditional; and there was contradictory evidence on this point, Fairfield, who was called by the defendant, having testified that the sale was absolute. The verdict established the fact that it was conditional, as testified by Sears. The defendant excepted to the verdict, on the ground, that admitting the sale to have been conditional, delivering the sugar without taking the note and suffering it to remain so long a time in the possession of Fairfield, and omitting to rescind the bargain by demanding the sugar, during that time and until after the attachment, made the property Fairfield’s, so as to be liable to attachment by his creditors. This was reserved as a question of law, the jury having determined that in point of fact there was no intention on the part of Sears to waive the condition. On this point the jury were instructed, that though nothing was said, at the time of the delivery, about the condition, yet if they believed it was not intended to waive it, they might consider it in force.</p> <p>The defendant objected too, that the action could not be maintained by the plaintiff alone, but that Sears ought to have been joined. He also moved for a new trial, because Sears was admitted as a witness.</p>

Debt. The declaration set forth, that on the 2d of June, 1826, the defendants, as administrators of Stephen Bean, and-the plaintiff, by articles of agreement in writing, submitted all claims and demands in difference between them to arbitration, it being expressly agreed that the defendants should not be held personally responsible by reason of any thing contained in the submission ; that the arbitrators, within the time limited, made and published an award, in which the sum…

<p>The statute of limitations respecting suits against an executor or administrator begins to run from the time of the defendant’s accepting the trust, and not from the time of giving public notice of his acceptance.</p> <p>In pleading this statute, it is sufficient for the defendant to allege that he posted up notifications of his appointment e< in two public places in the town,” &e. without specifying the places.</p> <p>In such plea it is sufficient to allege generally, that the defendant gave a bond to the judge of probate for the faithful administration of the estate of the deceased, according to the form of law in that behalf provided, without setting out the bond.</p>

<p>Trover for 14 tons of imperial slate. A trial was had before Parker C. J.</p> <p>It appeared that 176 tons, 4 cwt. of slate being consigned to the defendants for sale and being piled together on Liverpool wharf, they on the 29th of August 1826 made an agreement with one Galbraith, that they (the defendants) should take 70 tons from the pile, and that the residue should be sold to Galbraith at 30 dollars a ton, to be paid for by him as taken away, one half to be taken away within three months and the other halt within four months. The sum of 250 dollars was paid as earnest money. Previous to the 23d of November the defendants had separated the 70 tons reserved as above mentioned.</p> <p>The plaintiff produced a receipt signed by the defendants, dated November 23d, for 420 dollars received of Galbraith on accomit of a sale of slate to him according to the agreement of the 29th of August. He also produced a bill of parcels dated November 23d, signed by Galbraith, purporting to convey to the plaintiff the same quantity of slate (14 tons) for the same sum of 420 dollars, and acknowledging the receipt of that sum. That he paid the money to Galbraith on the 23d of November, was not contested ; and he proved that Galbraith, in the afternoon of the same day, made a symbolical delivery to him of the 14 tons. When the payment of the 420 dollars was made by Galbraith to the defendants, it was agreed that at 2 o’clock of the same day the 14 tons should be delivered to him, and at that time he and a clerk of the defendants, who was ordered to procure a weigher and have the 14 tons weighed and delivered, repaired to the wharf where the slate was in a pile. No weigher appearing, Galbraith wished to have the quantity measured off from the pile, beginning at one end ; but the clerk refused to do this, saying it was contrary to his orders. Galbraith then wished him to deliver one slate in lieu of the 14 tons, but this also the clerk refused to do, for the same reason. Galbraith then said that he would call at the defendants’ store in a few days and let them know when he should want the slate, and then he would have it weighed off.</p> <p>On the 1st of December, it being apprehended that Galbraith might not be able to fulfil the contract of August 29th, an estimate was made of the sums paid by him, and he gave his note to the defendants for 607 dollars 62 cents, the balance due according to the contract. All the slate was delivered to him except 23 tons, and on his note was the following memorandum : — “ When paid, 23 tons of slate to be delivered to Mr. Galbraith.”</p> <p>Some days after the above transaction of December 1st, the plaintiff called at the store of the defendants with an order from Galbraith, and demanded the 14 tons of slate which he had purchased of Galbraith. Austin, one of the defendants, answered, that the slate had never become Galbraith’s ; to which the plaintiff replied, that it was delivered in his presence. This was denied by Austin.</p> <p>On the foregoing evidence the chief justice directed a verdict for the defendants, subject to the opinion of the whole Court.</p>

<p>An assignment by commissioners of bankruptcy in a foreign country, does not operate a legal transfer of the bankrupt’s property in this State, as against a creditor of the bankrupt.</p> <p>Thus, where W, a banker in England, having advanced money to pay a bill of exchange drawn upon him by M, a citizen of this State, became a bankrupt, and after an assignment of his effects by commissioners of bankruptcy, but before notice of it had reached this country, the debt due from M, (he not having remitted funds to replace the money advanced,) was attached in his hands by virtue-of our trustee process, by B, a citizen of this State and a creditor of the bankrupt, the attachment was held valid as against the assignment.</p> <p>Whether an assignment made by the bankrupt himself to the same assignees and for the same purposes, of his property here, would be valid against a subsequent attachment under the trustee process, qucere.</p>

This was an action of debt upon the following articles of agreement, dated September 8, 1824, viz„• “ Whereas Zebina Eastman and others, whose names are hereunto subjoined, purchasers of petos in the meetinghouse of the Second Society of Universalists in Boston, claim of Winslow Wright and others, whose names are hereunto subjoined, original subscribers for building said meetinghouse, the sum of 3326 dollars and 41 cents, to be paid into the treasury of said socle ty, or to…

<p>This was an action of assumpsit instituted in the name of the plaintiffs for the benefit of the Provident Institution for Savings, to recover the amount of the dividend declared by the Washington Bank, on the 5th of April, 1826, on two shares of the stock of the same bank standing in the names of the plaintiffs. The defendants pleaded the general issue.</p> <p>On the trial before Ward C. J. of the Court of Common Pleas, the following facts appeared in evidence.</p> <p>The act incorporating the Washington Bank was passed on the 26th of February, 1825, containing these provisions, viz. “ The capital stock of said bank shall not be sold or transferred, but shall be holden by the original subscribers thereto, for and during the period of one year from the time of passing this act; ”—and “ no stockholder shall be allowed to borrow any money until he shall have paid in his full proportion of the whole of said capital stock.”</p> <p>On the 23d of March, 1825, the bank made a by-law, as follows:—iC The stock of every member of said corporation shall be considered and is hereby declared to be pledged to the corporation for any and all sums of money which said member may at any time owe said bank; and the boaid oi directors may, if they see cause, refuse to make any transfer or pay any dividend upon the stock of any member who may be so indebted, until said debt be fully discharged.”</p> <p>The plaintiffs were original subscribers for twC shares in .he bank, of 100 dollars each, and after paying the several assessments which had been made, amounting in the whole to seventy-five per cent, they on the 1st of September, 1825, transferred their right to these shares to Ball & Davis, and before the 28th of the same month, Ball & Davis transferred their right to the Provident Institution as collateral security for a loan. The treasurer of this institution, on the same 28th of September, the day on which the last instalment of the capital stock of the Washington Bank was payable, paid into the bank the instalment due on the two shares, and gave notice to the president and cashier that these shares were transferred, as above mentioned, to the Provident Institution, and that he made the payment on account of that institution ; upon which the president remarked, that the shares could not be transferred for some months then to come.</p> <p>On the 25th of April, 1826, a dividend of eight dollars was declared upon the two shares, and on the same day the treasurer of the Provident Institution demanded the dividend and a transfer of the shares, and offered to surrender the receipts of the bank for the several instalments which had been paid ; but the president and cashier refused to pay him the dividend or transfer the shares.</p> <p>On the 28th of December, 1825, the bank discounted a note made by the plaintiffs and indorsed by one Baker, for 32Ú dollars and 50 cents, payable in six months, which was still unpaid.</p> <p>Upon this evidence the judge instructed the jury, that the legislature, when they granted a charter to a number of citizens to facilitate their operations in any branch of business, had the power and the right to couple with the grant any limitations and restrictions which they might consider the public interest and convenience and sound policy required ; that the act incorporating the bank, having expressly provided that stockholders should not sell or transfer their stock, but that the shares should be held by the original subscribers for one year from the time of passing the act, the transfer from the plaintiffs to Ball & Davis was void, and the Provident Institution could derive no title through them to the two shares or the dividend declared upon them ; that it was true, there was no equity in the bank’s retaining the shares to cover a loan made to the plaintiffs after notice that the Provident Institutian claimed the shares under an assignment and had paid one instalment of the capital stock, yet the provision in the statute was peremptory, and an assignment, which in equity would otherwise have been good and the interest under it have been protected by the court, must bend to the positive provisions oí the statute ; that the evil resulting from bank charters being ob ained merely for the purposes of speculation, when there was no intention on the part of the applicants to fill up their shares and pursue the business of a bank upon regular principles, was a great one, and in order to suppress it the legislature had found it necessary to prohibit the sale and transfer of shares until the whole capital stock was paid in, and to prohibit a loan to any stockholder upon the credit of instalments which had been paid in, to enable him to pay subsequent instalments.</p> <p>Under the above instructions the jury returned a verdict for the defendants ; whereupon the plaintiffs filed exceptions.</p>

<p>Where a claim filed by the plaintiff before commissioners of insolvency upon the estate of an intestate, was rejected because he was a dormant partner of the intestate, and so liable to the other creditors, but he did not thereupon give notice, within twenty days, of his intention to prosecute an action at common law, and it afterwards appeared that the assets were more than sufficient to pay the other creditors, it was held that he could .not maintain an action of assumpsit against the administrator for the general balance due to him.</p> <p>But it seems that he would have a remedy by a bill in» equity.</p> <p>Whether the commissioners might not have received the claim and reported the special circumstances of it, so that it might be allowed or not, as the situation of the estate would justify, quaere.</p> <p>Whether a dormant partner is entitled, upon the death of the active one, to take possession of the partnership effects and settle the partnership concerns, quaere.</p>

<p>A ship-master having agreed to take the defendant’s schooner for the purpose of getting employ in the freigiiting business, engaged to victual and man her, and pay half of all port charges, pilotage, &c. and the defendant engaged to pay the other half, together with eight dollars per month for one man’s wages, and to put the schooner in sufficient order for the business ; and all money so stocked in the schooner, whether for freight or passage or whatever, was to be equally divided between the master and the defendant, each party accounting for the above. Held that the master was owner pro kac vice that the contract did not make him and the defendant partners : and that the defendant was not answerable to a shipper of goods which had not been delivered according to the bill of lading.</p> <p>Where a vessel is chartered without any limitation of time, it is an indefeasible hiring for every voyage which she shall have undertaken before notice from the owner of his intention to put an end to the contract.</p>

Assumpsit. The plaintiff declared for the sum of 1500 dollars, first, in indebitatus assumpsit on an account annexed to the writ, for his services as special director of the bank ; secondly, that the defendants, in consideration that the plaintiff, at their special request, had performed certain services ip and about their banking affairs and concerns, promised to paj him on demand so much money as he reasonably deserved to have, &c. The defendants pleaded a tender of 300…

<p>This was an action of the case against the defendant, a deputy sheriff, for neglecting to levy an execution in favor of the plaintiff against John Brown, upon certain goods which had been attached by the defendant, upon the original writ, as the property of Brown. Brown carried on business in his own name alone, and the goods were in his shop as stock in trade. Before the plaintiff attached, there had been three attachments of the same goods in favor of W. Lawrence, the Dorchester Iron Company and Aaron Brown, in suits against John Brown alone ; in which suits judgments were obtained and executions were duly issued and delivered to the defendant. Soon after these attachments, by the consent of all parties, the goods were sold by the defendant pursuant to law. The defendant paid tc Lawrence and the Dorchester Iron Company the amount of their respective executions, and to Aaron Brown a certain sum in part satisfaction of his execution ; retaining in his hands enough of the proceeds to satisfy that execution in full, and the plaintiff’s execution in part.</p> <p>After the foregoing attachments, Bogart & Co. sued out their writ of attachment against John Brown and Aaron Brown, charging them as copartners, and on this writ the defendant attached the same goods as copartnership property. On the tr a1 o. the action, upon the question of copartnership, Bogart & Co. obtained a verdict, and judgment was rendered in their favor against John and Aaron Brown ; and the defendant was notified to hold the proceeds of the stock to satisfy the judgment.</p> <p>The debt upon which the judgment in favor of Bogart & Co. was rendered, arose from the sale of goods to John Brown, and the goods made part of the stock in the store ; and the other debts, except the one due to Aaron Brown, arose in the same way ; it being unknown that a copartnership existed be-ween John and Aaron Brown.</p> <p>If the Court should be of opinion that the existence of a dormant partnership, unknown to all the parties who dealt with John Brown, did not give Bogart & Co. priority of security upon the goods as partnership property, the defendant was to be defaulted.</p>

<p>A judgment recovered in another of the United States against a cititen of Massa» - chusetts, who at the commencement and during the pendency of the action woo not within such State, and never was served with process, nor ever appeared to the action, though he had knowledge of its being commenced, is not binding upon him in Massachusetts.</p>

<p>A witness told the plaintiff that the defendant had left money with him to pay the plaintiff’s bill, and that if the plaintiff would make it right, by deducting a certain sum, he would pay it, at the same time making a motion with his hand towards his desk, at which he was then standing ; and he swore that he believed, but did not know, that there was money enough in his desk, but if there was not, he would have obtained it in five minutes if the plaintiff would have made the deduction, but the plaintiff replied that he would deduct nothing. Held that this was not a tender.</p>

Assumpsit. By the answers of the respondents, who were summoned by virtue of the trustee process, it appeared that on the 24th of May, 1827, Lamson made to them a general assignment of his property, consisting of chattels and choses in action, in trust to pay his creditors, who should become parties to the assignment, some of them in full and others in proportion to the amount of their respective debts.

<p>An assignment of goods at sea and their proceeds, is sufficient to pass a legal title to the proceeds.</p> <p>The United States have a lien on goods imported, for only the duties on the specific goods, and not for other debts due from the importer.</p>

<p>Assumpsit. The counts were quantum valebant for goods sold, and indebitatus assumpsit for money laid out and expended, money lent, and money had and received. In each count was alleged a promise by the defendant to the testator on the 31st of December, 1804. A bill of particulars was filed by the plaintiff in the form of an account current, embracing charges from April 11, 1800, to November 26, 1804, and credits from July 2, 1802, to December 31, 1804.</p> <p>The defendant pleaded non assumpsit infra sex annos. The plaintiff replied, that at the time, &c. the testator and the defendant were merchants, the defendant residing in Bordeaux, in France, and the testator in Boston, and that the causes of action arose out of the mutual dealings and accounts of the defendant and the testator as merchants, and wholly concerned the trade of merchandise carried on between them. To this there was a demurrer.</p> <p>It was agreed, that on oyer of the letters testamentary, it would appear that the testator’s will was proved June 21, 1813, and that the same use might be made of this fact as if it had appeared on oyer.</p>

<p>Assumpsit. The action was brought against Whit mg, and after his death, Richardson, as administrator, was allowed to come in and defend. Whiting was named in the writ, as of Louisville in the State of Kentucky. The officer returned, that he had attached all the right and title of Whiting in a parcel of land, and had left a summons at the place of his last and usual abode when in the Commonwealth. Whiting, after oyer of the writ, declaration and officer’s return, pleads by his attar ney, that, “ he had no right, title, interest and property in said land, that could be attached by virtue of said writ, and this he is ready to verify ; wherefore he prays judgment of the same writ and that it may abate, and for his costs.” To this plea the plaintiff demurs generally.</p>

<p>This was an action of assumpsit on the common money counts to recover the sum of 2500 dollars.</p> <p>At the trial it was proved, that on the 11th of June, 1817, Clark made an agreement under seal with Charles A. Den-net, in which he covenants to pay to Dennet the sum of 4000 dollars, and to let him have the use of it for three years, and Dennet covenants to employ it in trade, either by himself, or in partnership with such other person as he may select; and they mutually agree to receive each a moiety of the net profits, Dennet’s share to be in full satisfaction for his trouble and services.</p> <p>On the 25th of the same June, Dennet entered into a general copartnership with Bailey, for three years, and each paid in as capital stock, the sum of 4888 dollars. Bailey then knew of the agreement between Clark and Dennet.</p> <p>On the 12th of December, 1819, Dennet died, and Bailey proceeded to settle the concerns of the partnership. On the 20th of January, 1821, 2500 dollars were paid to Clark by Bailey, and thereupon Clark gave a receipt, stating that he had received that sum of the administratrix of Dennet, on account of the deceased ; and the administratrix at the same time gave a receipt, stating thou she had received that sum of Bailey, surv ving partner of the firm of Bailey and Dennet, on account of the deceased. There was evidence in the case tending to show that this payment was made by Bailey under the beliei that such an amount would be coming from the firm to Den-net; which belief proved to be erroneous. It was testified that Bailey said all the debts of the firm were paid, and that the firm owed him for money advanced for that purpose.</p> <p>The plaintiff contended, 1. that if Clark, by virtue of the agreement of June 11th, was a partner of Bailey & Dennet, he was liable to refund the sum of 2500 dollars paid to him by Bailey under the belief that the firm was solvent at the time of Dennet’s decease, and that such an amount or more would be coming to Dennet upon the final settlement of the copartnership concerns ; and that this was the proper form of action for the recovery thereof: — Or, 2. that if Clark was not a partner of Bailey and Dennet, then he was liable to refund the sum in question paid to him by Bailey on account of money said to be due to him from Dennet’s estate, under the belief that the firm of Bailey & Dennet was solvent at the time of Dennet’s decease and at the time of such payment, and that such an amount or more would be coming to the estate of Den-net upon the final settlement of the copartnership concerns ; and that this is the proper form of action for the recovery thereof.</p> <p>The defendant insisted, that as it regards Bailey & Dennet, he was not a copartner, and not bound to refund this money or any part of it, and not involved in their concerns in any other manner than as his interest might be further affected by the insolvency of Dennet ; and that if he was a copartner, this action could not be maintained against him.</p> <p>If the Court should be of opinion that the defendant was thus chargeable, and that the action' could be sustained, the case was to be sent to auditors.</p>

<p>Under St. 1827, c. 88, giving relief in equity in cases of waste and nuisance, this Court has equity jurisdiction in regard to nuisances of a private nature ; such as establishing without right a bridge so near to one before rightfully existing, as to diminish the profits accruing from tolls ; there not being in such case a plain, adequate and complete remedy at law.</p> <p>Whether in regard to some public nuisances, as where the health or comfort of a neighborhood is affected, the Court has not similar jurisdiction, at least so far as to procure immediate relief by injunction, qtuBre.</p> <p>The several statutes giving equity jurisdiction to this Court are not at variance with the 15th article of the Declaration of Rights, securing a right to a trial by jury in all controversies concerning property (certain cases excepted), for whenever a party shall require that any controverted fact be tried by a jury, the Court by force of that article will order an issue for that purpose.</p> <p>Upon a bill in equity filed by the proprietors of a toll bridge built many years ago under authority from the legislature, praying for an injunction to restrain the defendants from erecting another bridge so near as to interfere with the plaintiffs* franchise, the Court refused to grant a temporary injunction before a hearing on the merits, on the grounds, — that die defendants likewise professed to act under authority from the legislature, and denied the exclusive right of the plaintiffs to the extent claimed by them, ■— and that the injury which the plaintiffs might suffer by the delay was not in its nature irreparable.</p>

<p>In a writ of entry* the want of an averment of seisin in the demandant is cured by a verdict that he was disseised, and he is entitled thereupon to be reseised of at least an estate of freehold.</p> <p>Where án individual, under a resolve of the legislature authorizing him to sell, by a quitclaim deed, land belonging to the Commonwealth, gave a deed in his own name as agent, and under his own seal, the deed was held valid.</p> <p>Held also, that he did not exceed his authority by warranting the land against ail persons claiming under the Commonwealth, that being no more than the legal effect of a sale.</p> <p>Held also, that it was not necessary to recite in the deed the particular acts which the resolve required to be performed in making the sale.</p> <p>A deed conveying all the lands belonging to the Commonwealth “ between the old west line of S. and the east line of M. W.” (adjoining towns,) is not void for uncertainty of description.</p> <p>A grant of land by the Commonwealth will pass its title, notwithstanding an adverse possession, the Commonwealth being incapable of being disseised.</p> <p>Successive disseisins do not aid one another in creating a title by possession. Thus where a disseisor conveys part of the land, and the grantee, under color of the deed, enters upon the whole, the1 possession of the first disseisor will not avail the grantee, in regard to the part not embraced by the deed.</p>

Debt upon an administration bond, dated May 10, 1825. The estate of Timothy Griswold, the intestate, was represent ed insolvent, and the administrators, one of whom was his widow, obtained license to sell his real estate for the payment of debts. The replication stated, as a breach of the bond, that the real estate was sold subject to the widow’s right to dower, when in fact she had, in the lifetime of the intestate, released her dower.

<p>This was a petition for a new trial. Chatfield sued Lathrop to recover 63 dollars, which he had paid him about the 5th of March, 1826. The verdict, which was in favor of Lathrop, turned upon the testimony of one Piper, who testified, that he was present on the 5th of March, when money passed from Chatfield to Lathrop, but that the sum of 63 dollars, which Chatfield contended he had paid to Lathrop at that time, was not so paid. Chatfield objected to Piper on account of his interest, and the witness being put on the voir dire, the ob jection was overruled. The ground of the present application was, that Chatfield had discovered evidence since the trial which would exclude Piper’s testimony ; and if he should fail in this, that he had discovered evidence since the trial, which would prove by the declarations of Lathrop and Piper, that he did pay the sum of 63 dollars to Lathrop, as above mentioned</p>

<p>This was an action brought by a surety against his co-surety for contribution. The principal debtor was offered by toe defendant, as a witness to prove an arrangement and settlement between the sureties, but was objected to by the plaintiff on the ground of interest. Putnam J. sustained the objection, considering the principal to be interested to the extent of the costs which might be recovered by the plaintiff in case he prevailed. If the witness was improperly excluded, a new trial was to be granted.</p>

<p>Where a mortgagee, upon being requested by the mortgager to state an account of the money due on the mortgage, renders such an account without any unreasonable delay, giving all the information in his power, he will not be liable to the costs of a bill to redeem, under St. 1821, c. 85, § 1, although some items in the account should prove erroneous : nor, if the bill is sustained, will he be entitled to recover costs.</p>

<p>Rufus Saxton, administrator on the estate of William Barnard, deceased, presented an account of administration to the Probate Court of the county of Franklin in May, 1826, which, after due notice, &c. was allowed by the judge in June. In this account he did not charge himself with any interest. In October the administrator presented a petition to the judge to be allowed a commission on his disbursements ; and after due notice, &c. the prayer of the petition was granted in the succeeding November.</p> <p>In the same month of October, W. Chamberlain and S. Allen, creditors of the deceased, presented a petition to the judge, that Saxton, the administrator, should be required to account for interest on the money in his hands belonging to the estate ; and in November it was decreed, that the administrator should be examined upon oath touching the time when he received the money and the use which he had made of it. From this decree the administrator appealed for the following reasons, viz. — There is not any statute or law of the Commonwealth by force of which an administrator is answerable for interest on any money in his hands, and it has, until very recently, been held by the Supreme Court to be questionable, whether administrators were liable to such examination ; and the case of Stearns et al. v. Brown, 1 Pick. 530, where it was held that they were bound to answer, was very different from this case. There the administrators were called upon to answer interrogatories touching the use made of money in their hands only during the pendency of the appeal in the case. Here the administrator exhibited his account of administration at a Court of Probate in May, 1826, including the whole amount of interest received by him, and the case was continued to a Probate Court in June then following, and an order of notice was issued and published in a public newspaper agreeably to the order, that all persons interested might appear, &c. at which court one of the petitioners was present and examined the account and made no objection to the same, nor was any objection made by any one, and the administrator then and there made oath that the account by him exhibited was true. Now if the creditors have a right to make the inquiry of the administrator respecting the use of the money in his hands, they ought to have appeared at the Court of Probate, according to the notice, and have put the interrogatories before the oath above mentioned was tendered to the administrator, and by neglecting to do so they have waived their right to make such examination.</p> <p>The case was argued in writing.</p>

<p>Assumpsit on the following promissory note. “ July 14th, 1819. For value received, I, the subscriber, of Am herst, &c. promise to pay to the trustees of Amherst academy or their order, on or before the 23d of May, 1820, one Hundred dollars, with annual interest from and after the 23d of May, 1819, being the amount of my subscription to the charitable fund established m Amherst for the classical education of indigent pious young men, and in pursuance of my covenants and engagements as expressed in the constitution of said fund by me subscribed, and dated the 23d of May, 1818. Jonathan Cowls.” ■</p> <p>The defendant pleaded the general issue, and offered in evidence the original subscription paper. The constitution referred to was for the purpose of founding an institution for the instruction of youth in all the branches of literature and science usually taught in colleges, to be located in Amherst and incorporated with the academy in that place. The 2d article was as follows : — “In order to effect the benevolent object aforesaid, we whose names are hereunto subscribed, severally and solemnly promise to pay to the trustees of Amherst academy for the time being, or to their successors in office, the sums annexed to our respective names, for the purpose of raising a permanent fund of the amount of at least 50,000 dollars, as the basis of a fund for the proposed institution, the interest of which is to be appropriated in manner hereinafter provided, to the increasing said fund, and for the classical or academical and collegiate education of indigent young men of promising talents and hopeful piety, who may desire such an education, with the sole view to the Christian ministry &c. ; provided that in case the sums subscribed to this instrument in the course of one year from the date hereof shall not amount to the full sum of 50,000 dollars, then the whole, or any part thereof, shall be void, according to the will of any subscriber, he giving three months’ notice &c., and within three months after the expiration of the year.” The 5th article provided, that until the contemplated institution should be incorporated and organized, the property of the fund and the management thereof should be vested in the board of trustees of Amherst academy ; so however as to be in conformity to the provisions of this constitution ; and that upon the in corporation and organization of the institution in question, the trustees of the academy should without loss of time transfer to the board of trustees of the institution the whole of the property of the fund, together with the titles and evidences of the same.</p> <p>The defendant further offered in evidence a deed of assignment from the trustees of Amherst academy to the trustees of Amherst college, transferring the note in suit.</p> <p>The St. 1824, c. 84, establishing a college in Amherst, in § 5, authorizes the trustees “ to receive all the real estate, goods, chattels, choses in action, and property of every description whatever, which has, heretofore, been given, &c., or engaged to be given, paid or devised to the trustees of Amherst academy, with the intent and for the purpose of establishing and maintaining a classical or collegiate institution in said town ; and that all the said funds &c. shall be faithfully and for ever used and appropriated according 10 the will of the donors.” In § 7 it is provided, that if the trustees of Amherst academy shall not within eight months, by a good deed or deeds, assign to the trustees of Amherst college all the property specified in § 5, the act shall he void.</p> <p>The St. 1815, c. 102, establishes an academy in Amherst, for the purpose of promoting morality, piety, and religion, and for the instruction of youth in the learned languages, End in such arts and sciences as are usually taught in other academies, or as shall be directed by the trustees.”</p> <p>It was contended by the defendant, that this action could not be maintained : — 1. Because there was no sufficient legal consideration for the promise : — 2. Because the trustees of Amherst academy could not become the payees of a note given for the purposes expressed in the note and subscription paper : — 3. Because the note was transferred to the trustees of Amherst college, and the suit should have been brought in their name.</p> <p>For the purposes of the trial, all these points were ruled against the defendant, and the jury were instructed to find a verdict for the plaintiffs. A verdict was returned accordingly, subject to the opinion of the whole Court.</p>

<p>Assumpsit on certain promissory notes made by the defendant to the plaintifs respectively, in the State of New York, previous to the 3d of April, 1811.</p> <p>In the first case (Kimberly et al. v. Ely) the defendant pleaded in bar a discharge, as an insolvent debtor, under a statute of insolvency passed April 3, 1811, by the legislature bf New York.</p> <p>This statute provides, that any insolvent debtor imprisoned on any civil process under the authority of that State, or who should be prosecuted in any court thereof, for debt or on contract express or implied, may petition the recorder of the city of New York, Albany or Hudson, that his estate may be assigned for the benefit of his creditors, and upon an exhibition of his debts, and of the property belonging to him and of debts due to him, may be allowed to assign the same as aforesaid, and thereupon may by the said recorder be for ever discharged from any debts due from him before that time, or any liabilities incurred or afterwards accruing on any pre-existing contract.</p> <p>The plea sets forth the various requisitions of the statute, and avers a performance by the defendant of every thing required to entitle him to the discharge, and makes profert of the certificate of discharge by the recorder of New York. It also states that the plaintiffs were transacting business in New York under the firm of Kimberly, Brace & Company, at the time of making the note, that the same became due on the 1st of May, 1810, and that the plaintiffs proved the debt under the commission and received a dividend</p> <p>To this plea there was a general demurrer and joinder.</p> <p>The pleadings in the other cases were nearly similar. The plea in the case of Ely against Ely alleges that the contract was to be performed in New York, and that it was proved and allowed under the commission; but it does not aver that the plaintiff was an inhabitant of New York, nor that he received a dividend. In Allen et al. against Ely the plea states that the debt became payable after the passing of the statute, that the plaintiffs were inhabitants of New York, that they received a dividend, and that Allen was one of the assignees.</p>

<p>In trespass against an officer for attaching property of the plaintiff in an action against him which was not sustained, it was held that he was not estopped to show that the property belonged to him, although at the time of the attachment he declared it belonged to a stranger, the plaintiff having acquired no advantage and the officer having sustained no damage by such declaration.</p> <p>Where a defendant, whose property had been attached, made an agreement with the plaintiff that the defendant should take the property, and if an adjustment of the suit should not be made, should return it and the plaintiff might then sell or dispose of it as he chose, and apply the proceeds to his claim against the defendant, and the property was delivered to the defendant and returned to the plaintiff and afterwards sold by the officer, by auction, upon the mesne process, the defendant forbidding the sale $ it was held, that the defendant had a right to revoke die license to sell.</p> <p>Where an officer sells chattels attached on mesne process, without pursuing the provisions of St, 1822, c. 93, and the defendant prevails in the suit, the officer becomes a trespasser ab initia, and is liable to an action without any previous demand on him for the chattels.</p>

<p>Elihü Lyman, of Enfield in the county of Hampshire, died in February, 1826. On the 11th of April following, his estate was represented to the judge of probate to be insolvent, and thereupon a commission of insolvency was granted and ten months (afterwards extended to thirteen months) were allowed to the commissioners to receive, examine and report on the claims of creditors. On the second Tuesday of August, 1827, which was after the report of the commissioners had been accepted by the judge of probate, but before any order of distribution had been passed, a petition was presented to the judge by William Walker of Cooperstown, in the State of New York, alleging that in 1820 he remitted to Lyman, who was an attorney at law, three notes signed by one Scott, for collection ; that the notes were for the sum of 340 dollars, payable in three and four years from April, 1818 ; that Lyman, in 1821, paid him about 250 dollars on account of the notes ; that he heard nothing further upon the subject of the note last, due, until he was told of Lyman’s death, when he ascertained that the note had been paid, that Lyman’s estate had been represented insolvent, commissioners had been appointed, and a report had been made on the. 17th of May, 1827, whereby he was barred from presenting his claim. The petition concluded with s prayer that the commission might be re-opened, and a day be given to the petitioner to present his claim to the commissioners. The judge of probate, thinking that there was not sufficient reason for a further extension of the time lowed .0 creditors to exhibit their claims, decreed that the petition could not be granted. From this decree the petitioner appealed ; — 1. Because, living at the distance of 160 miles from the place where the commissioners sat, he never heard of their session : —2. Because, when he heard that the commission had closed, he made immediate application to the judge of probate to have it extended : — and 3. Because, having a just claim against the estate of Lyman, he would lose the same unless the commission were ex tended.</p> <p>The petition was supported by affidavit.</p>

<p>Whit of entry sur disseisin. The tenants offered in evidence, in support of their title, a deed from J. W. Smith to Z. Lyman, of “ a certain tract of land lying in South Hadley, with the buildings thereon standing; further reference had at the register’s office, book no. 51, page 257.” At the place referred to was the record of a deed dated February 21, 1824, from Willis Pease to Smitn, of “the right to lay out m Thomas Hovey’s 2d choice in the two thousand acre division, nine acres of the common and undivided land in South Hadley or Granby in the county aforesaid, which Thomas Moody of said Granby conveyed to me by a deed dated the 28th day of Aug. A. D. 1821.” The tenants produced also the Proprietors’ Records of South Hadley and Granby, in which was the following entry. “ Part of Thomas Hovey’s second choice in the 2000 acre division laid out to Willis Pease on the mountain west of Taylor’s Crack, beginning &c., nine acres, surveyed August 28th, 1821, per Gardner Preston, surveyor.” The tenants also proved by a witness, that the land so laid out was the same with the demanded premises, and with that intended to be conveyed by Smith’s deed. The demandant objected to the admission of these deeds as being void for uncertainty, and to the paroi evidence so offered to explain and support them.</p>

Ln me Uourt of Common Pleas an interrogatory was put the persons summoned as trustees, which they declined answering, and thereupon the Court ordered that they should answer the same. To this order they filed exceptions.

<p>This was an action of trover for several articles described in the writ, the property of one Wilcox, the plaintiff’s intestate, who died in June, 1825. Letters of administration were granted to the plaintiff on the 23d of August, 1825. The intestate was a pauper, and receiving support from the defendants, who were overseers of the poor for the town of Rowe. Immediately after his death, the property sued for was taken into the custody of the defendants by virtue of St. 1817, c. 186, § 6, which provides, “that upon the death of any pauper, who, at the time of his decease, shall he actually chargeable to any town or district within this Commonwealth, the overseers of the poor of such town or district may take into their possession all the personal property belonging to such pauper. And if no administration shall be taken upon the es-tote of such pauper within thirty days after his decease, said overseers may sell so much of such property, as may be necessary to repay the expenses incurred for such pauper.” Soon after taking out of letters of administration by the plaintiff, the defendants, knowing that fact, sold the property in question by public auction. The sale was fairly conducted, and the property sold was no more than enough to indemnify the town for the expense incurred by them for the support of the pauper. The sale was forbidden by the plaintiff, and he attended to take possession of the property. Two of the articles sold were struck off to one of the defendants.</p> <p>Howe J. of C. C. P, before whom the cause was tried, was of opimon that these facts constituted a good defence ; to which opinion the plaintiff excepted.</p>

Assumpsit. The original count in the writ alleged, that Whitaker, administrator &c. of Davis Packard, on the 27th of June, 1827, the date of the writ, being indebted to the plaintiff in the sum of 2000 dollars for so much money before that time had and received by Packard, promised the plaintiff to pay him the same sum on demand; yet, though often requested, neither Packard in his lifetime, nor, after his death, the defendant, had paid any part of that sum.

Case against the defendant as sheriff of the county of Franklin. The declaration alleged that one Horsley was arrested at the suit of the plaintiff and committed to the jail in Greenfield, of which the defendant was the keeper, and that the plaintiff afterwards recovered judgment against him for the sum of 99 dollars, but that before the rendition of the judgment the defendant voluntarily permitted him to escape, by means whereof the plaintiff lost his debt.

This was a petition to the Supreme Court for a certiorari. It alleges, that on May 9, 1827, petitions were presented to the compiissioners of highways for the county of Franklin for a new road in the towns of Wendell and New Salem ; that on the first Tuesday of March, 1828, the commissioners returned to the county commissioners their doings, whereby they located and established a new highway agreeably to the prayer of the petitions ; that the present petitioners, viz. the…

<p>Where a surety receives from his principal, property to secure him against his lia* bilities, and the principal subsequently makes a settlement with the surety, in which he transfers to the surety his whole interest in the property for a grossly inadequate consideration, the settlement is fraudulent against creditors of the principal; but the surety is still entitled to hold the property to secure him against his original liabilities.</p> <p>If in such case the surety be summoned as trustee of the, principal, he will have a right to deduct from the proceeds of the property all payments which he has made on account of his liabilities as surety, and all amounts which he is still liable to pay on that account, and also any other payments bonájide made by him on account of the principal ; and will be chargeable only for the balance after making these deductions.</p> <p>Where in such a case, one of the original liabilities was to pay a life annuity to a third person, the Court directed the value of the annuity to be estimated in ready money, and to be deducted from the proceeds in the trustee’s hands, and that he should only be chargeable with the balance.</p> <p>If in such case the parties and all concerned agree, the plaintiff may relieve the trustee from his future liability to pay the annuity.</p> <p>A person cannot be chargeable as trustee in the trustee process, on account of land which has been conveyed to him by the principal defendant io defraud creditors.</p>

<p>It an officer, having attached goods of a debtor, suffers them to remain intermingled with other goods of the debtor, and makes claim to the whole, so that another officer, having a writ against the same debtor, cannot distinguish which have been ittached, the latter officer will be justified in attaching the whole.</p> <p>It is not a ground for a new trial, that the judge, after having summed up the cause, instructed the jury, on motion of counsel, upon a point arising out of the facts in Uie case but not previously suggested, such course of proceeding being a matter within the discretion of the judge; but if the losing party might have produced material evidence on such point, in case it had been earlier presented, he has a remedy by petition for a new trial.</p>

<p>Where a creditor of an intestate estate represented insolvent, had his whole claim allowed by the commissioners, notwithstanding it was partially secured by a mortgage, and received a dividend upon the whole, he was held to have waived his security by the mortgage.</p> <p>Where an administrator appointed here takes out letters of ancillary administration in another State, and thereupon collects debts of citizens of such State, and sells land there situate, the administration of such assets is not covered by his bond given here, but he will be presumed to have rightly accounted for the same in such other State.</p> <p>But moneys received in another State, of debtors living here, are to be accounted for in this State.</p> <p>Where, in an action on an administration bond, a forfeiture was confessed and the parties were heard in chancery, it was held, that the execution against the administrator might include sums received by him since the commencement of the action.</p>

<p>The St, 1783, c. 44, § 3, prohibits sheriffs from making or filling up any plaint, deo laration, writ, or process, and provides, that66 all such acts done by either of them shall be void.” A writ and declaration were written by a deputy sheriff, an attachment of land made upon the writ, and the land seasonably set off on an execution issued on a judgment recovered in the suit. Subsequently to the attachment, and previously to the judgment, the debtor conveyed the land to a bond jide purchaser for a good consideration. It was held, that this conveyance defeated the attachment, and that the title of the purchaser was good against the judgment creditor.</p> <p>Ji seems that as between the parties such judgment is good.</p>

<p>This was a bill in equity. The bill sets forth, that Na thaniel Maynard,- on the 2d of March, 1814, mortgaged a iract of land to his father, Daniel Maynard, the defendant, to secure a note for 500 dollars, given by Nathaniel to Daniel, payable in one year ; that Nathaniel continued in possession of the land without any entry being made upon him by the defendant, and on May 1, 1819, he sold and conveyed the land to the plaintiff, for a consideration equal to the whole value of the land, by a deed with covenants of warranty against all persons and for quiet enjoyment f that under this deed the plaintiff entered on the land and has continued in possession ever since. The bill further alleges, that the plaintiff, feeling apprehensive that he might have to pay the balance due on the note of Nathaniel Maynard, and that he should be unable to recover the same of him, unless he, the plaintiff, immediately paid off the incumbrance and sued Nathaniel to secure the amount thus paid, did, on March 20, 1820, inquire of the defendant if he would receive the amount due on the mortgage and discharge it, which the defendant then agreed to do ; that the plaintiff, relying on this promise, on November 1, 1820, sent a messenger with the money to the defendant, and that the messenger tendered the defendant the amount then due on the mortgage; but that the defendant, being apprehensive that the design of the plaintiff in paying the money was to. obtain a right to sue the defendant’s son, refused to take the money ; and in order to induce the plaintiff to desist from his purpose of securing himself from his liability, professed great friendship for the plaintiff and his family, and gratitude for their kindness to a child of the defendant’s, and stated that he should take this opportunity to make a requital ; and that he would so manage his affairs that the plaintiff should never suffer by or on account of the mortgage ; and that if the plaintiff would not insist on paying the mortgage, and would forbear to sue his son for a breach of the covenants in his deed, the plaintiff should hold the land for ever discharged from the mortgage. The bill further alleges, that the plaintiff, relying on these assurances, took no further measures to secure himself, and forbore to sue Nathaniel for a breach of his covenants ; that Nathaniel became insolvent about the first of the next January, and has ever since continued so ; that on or about March 15, 1826, the defendant commenced a suit in the Court of Common Pleas against the plaintiff to recover possession of the mortgaged property, to which suit the present plaintiff pleaded in bar the matters above set forth, and on a trial by jury in this Court a verdict was found in his favor ; that no judgment was rendered on the verdict, but the case having been continued for the opinion of the whole Court, a new trial was granted, on the ground that the matter set forth in the plea did not constitute a legal defence to the action. (See Maynard v. Hunt, 5 Pick. 240.)</p> <p>The bill, after averring that the legal advantage obtained by the defendant is inequitable and founded in fraud, asserts the jurisdiction of this Court as a court of chancery, on the ground that the defendant’s estate is a trust estate created by deed, and concludes by praying that the mortgage deed made by Nathaniel Maynard may be delivered up to the plaintiff and cancelled, and that the defendant be enjoined from proceeding in his action at law, and from commencing an) other suit to recover possession of the mortgaged premises, and for general relief.</p> <p>To this bill the defendant demurs generally.</p>

<p>Where the purchaser of an equity of redemption of land which is subject to two mortgages, pays and takes an assignment of the first mortgage, it seems, that he does not thereby acquire the rights of an assignee of the first mortgagee, but that (lie first mortgage is discharged.</p> <p>A purchased on execution the equity of redemption of land which was subject to two mortgages ; he then paid the first mortgage and took from the mortgagee a deed purporting to “ release, grant, bargain and sell ” the mortgagee’s interest in the land, and adding, “ the aforesaid sum having been this day paid me in discharge of said mortgage.” In a writ of entry by A against the second mortgagee to obtain possession of the land, it was held, that the deed to A was not an assignment, but a discharge of the first mortgage.</p> <p>Parol evidence is not admissible in such a case to show the intentions of A in receiving, or of the first mortgagee in giving such a deed</p>

<p>In pursuance of the decision of the Court reported in 4 Pick. 68, a mandamus issued requiring the commissioners either to cause the road in controversy to be constructed ana finished, and to certify the expense of constructing and finishing the same to the Court of Sessions, or to show cause to the contrary to the Supreme Court; and to show to the Court, at the next May session in Hampden, the manner in which this command was executed. At the May term 1827, the commissioners made a return, in which they stated at length the proceedings of the town of Springfield with regard to the road, and the reasons why they could not cause the road to be constructed and finished, and certify the expenses thereof to the Court of Sessions.</p> <p>At the next September term, in Hampden, the petitioners moved that the return of the commissioners should be quashed, and a peremptory mandamus be issued, assigning several causes which it is not necessary to specify. A motion was made by the respondents, at the same term, to quash the writ for informality.</p> <p>The case was argued in writing by G. Bliss senior and Willard, for the relators, and Lathrop, for the respondents.</p> <p>On February 28, 1828, and before the arguments of the counsel were completed, an act was passed, repealing the statute of 1825, c. 171, which provided for the creation of commissioners of highways. This act provided for the appointment of county commissioners, who were vested with all the powers of the commissioners of highways. This statute however provided, “ that this act shall in no way affect any highway already adjudged by the commissioners of highways for any county to be of common convenience and necessity, or any highway already laid out or supervised and established, altered or discontinued by said commissioners, whether the same be worked or not, or any contract by said commissioners or by their direction, entered into, or any liabilities incurred, or rights accrued under the same, but the same and the remedies for enforcing them shall remain as if this act had not been passed.</p>

<p>A promise by one person to pay for a dinner furnished for others, made while they are in the act of eating the dinner, is not binding without a note in writing, the dinner not having been originally provided at the request and on the credit of the person making the promise.</p> <p>A verbal promise by A, after the commencement of the dinner, in such case, to be responsible for the dinner, is not binding, even if the plaintiff furnished it under an expectation that A would pay for it, if A had previously done nothing to authorize such an expectation.</p> <p>A forbearance to collect the pay for the dinner from the persons who are eating it, though it might be a good consideration for a promise to pay for it by another person, yet it does not constitute such an original contract as would be valid without a note in writing.</p>

<p>In an action brought in the Common Pleas by an executor, the original declaration was for money had and received by the defendant to the use of the plaintiff, an executor, and that court allowed the plaintiff to amend by adding counts for money had and received by the defendant to the use of the testator and a promise thereon to pay the executor j on an insimul computassent between the plaintiff as executor and the defendant, of money due to the plaintiff as executor ; and for money had and received to the use of the testator, and a promise to pay the testator. Verdict and judgment for the plaintiff. On a writ of error, it was held, that it was not error in the Common Pleas to allow the amendments, and that after verdict and judgment the amended counts must be presumed to be for the same cause of action as the original count, as nothing appeared on the record to show that they were for different causes of action.</p> <p>In the above action the defendant pleaded non assumpsit and non assumpsit infra sex annos to the whole declaration $ and to the first, second and third counts, actio non accrevit infra sex annos to the plaintiff as executor; and to the fourth count, actio non accrevit infra sex annos to the testator. Issues being properly joined, the jury found “ that the defendant did promise the plaintiff in manner and form, &c. within six years next before,” &c. Judgment was entered on this verdict for the plaintiff. Held, 'that the verdict was not erroneous in not' finding upon the issue of no» accredit, as the promise was not averred to be to pay at a future day ; but that it was erroneous in not finding as to the promise alleged in one of the counts to pay the testator. Held also, that even after error brought, the verdict might be amended by the judge’s minutes.</p>

This was assumpsit to recover the value of certain land described in a deed from the plaintiff to the defendant, dated June 18, 1824, purporting to be made for 1100 dollars, which, as was said in the deed, had been paid to the plaintiff, and the receipt whereof he acknowledged, as in the common form of a deed.