Volume 24 — Massachusetts Reports

<p>This was a bill in equity brought in July, 1820, oy the administrators, widow and children of John Grout, against the executor of Jonathan Grout. The bill alleged that the testator, at the time of his decease, was seised of a large real and personal estate situated in Massachusetts and Vermont, including a valuable farm in Petersham, which was known by the name of his homestead farm, and which he had mortgaged to one Abigail Hale ; that he devised this farm to his son John Grout above named in fee, directing that if his son Jonathan Grout junior should be unable to redeem the mortgage, according to certain bonds, wherein he had engaged to indemnify the testator against the mortgage, one half of the incumorance should be paid out of the testator’s other estate, and after each of the testator’s five daughters should have re ceived 1000 dollars, the residue of the incumbrance should be paid out of the testator’s other estate ; that the testator died on the 9th of September, 1807, and the defendant soon after caused the will to be proved in Massachusetts and Vermont, and accepted the trust of executor, and by virtue thereof possessed himself of effects and estate of the testator, besides the farm above mentioned, more than sufficient to pay the debts, legacies and expenses of administration ; that John Grout died on the 12th of September, 1807 ; that Jonathan Grout junior had never paid, and ever since the decease of the testator had been unable to pay, the money due on the mortgage, and that the plaintiffs had requested the defendant to pay the same out of the estate of the testator, in order that the farm might be redeemed and disposed of for the benefit of all persons interested in the estate of John Grout ; but that the defendant had unnecessarily sold the farm by virtue of his authority as executor, the testator’s estate, exclusive of the farm, being sufficient to redeem the mortgage, besides paying the testator’s debts and legacies, and the expenses of administration, and had himself purchased and redeemed the farm for a sum much less than its real value ; that the defendant, in April, 1809, redeemed and took possession of the farm, and had ever since received the rents and profits, appropriating them to his own usé ; and that the plaintiffs had requested him to convey the farm to the administrators of John Grout, and to account to them for the rents and profits, but that he had refused so to do. The prayer of the bill was, that if the defendant would not admit that assets came to his hands sufficient to redeem the mortgage, after paying the testator’s debts, &c. he should set forth an inventory and account of the testator’s goods and lands, debts, &c. and that he should be decreed to convey the farm, and account for and pay over the rents and profits, to the administrators of John Grout.</p> <p>The defendant, in his answer, objected, that if the complaint were true, the plaintiffs had an ample remedy in the courts of probate and common law; that many of the matters alleged against him referred to times so long past and to circumstances so multifarious, and to business so complicated in its character, that it was impossible from memory to state the particulars required, and it was not reasonable or fit in equity to hold him so to do ; that every thing which he had ever done in reference to the subjects contained in the bill, was done by him as executor, except as hereafter mentioned, and was properly cognizable before the Probate Court; and protesting that he had already settled all matters in relation to the estate of his testa tor, before the Probate Court for this county, after due notice to all persons interested, and that that court had, on the 7th ol December, 1819, passed a final decree respecting the same, from which no appeal had ever been claimed, and that therefore this bill ought not to be sustained ; nevertheless, if this Court should overrule his objections to their jurisdiction, he denied that he was accountable for the homestead farm, or any disposition made of it, otherwise than by the sale of the right in equity to redeem the same from the mortgage, and for which he had already accounted in his administration accounts ; he further stated, that on the 3d of March, 1807, the right in equity to redeem was taken and sold by virtue of an execution against the testator to N. Hale, and that the defendant, on the 21st of April, 1809, in his capacity of executor, purchased and redeemed the same right in equity of and from John Jennison, one of the plaintiffs, to whom it had been assigned by Hale ; that the defendant afterwards, intending to benefit the testator’s estate, sold the right in equity, pursuant to a license of this Court, by public auction, to one Brooks, and faithfully accounted for the proceeds in his accounts of administration ; that on the 1st of March, 1809, he and Brooks, with their own money, and on their own account, procured to themselves jointly from Abigail Hale an assignment of the mortgage; that at that time, the defendant, as executor, had not, nor could by any means have obtained from the testator’s estate, money sufficient to redeem the mortgage, or to pay one half of the amount, if any other person could or would have paid, the other half on account of the estate of John Grout; that after the assignment to Brooks and himself of the mortgage, and after the sale to Brooks of the right in equity to redeem, to wit, on the 1st of January, 1810, he purchased of Brooks, for a valuable consideration of his own money, all the right, title and interest of Brooks, in the farm, and took from him a conveyance thereof accordingly ; that to the best of his judgment and belief, the amount of the mortgage, together with the sum for which the right in equity was sold, was the full value of the farm at the time of the conveyance to him by Brooks ; that Brooks was not re quested by the defendant to purchase the right in equity, and that the conveyance thereof by Brooks to the defendant was not made in pursuance of any agreement or understanding between them entered into previously to the sale to Brooks ; that he never took the rents and profits, nor had possession of the farm, in his capacity of executor, nor in any other manner than as a purchaser in his own right for a valuable consideration paid out of his own money ; that he took possession of the farm in his own right, under and by force of the original deed of mortgage and for breach of the condition, and also by force of the deed of conveyance of the right in equity, and that the right to redeem was foreclosed long before he could obtain from the testator’s estate any money to apply to the redemption, and that there never had come to his hands from the testator’s estate, after paying debts, legacies, &c. a sufficient sum to pay the whole amount of the mortgage, and the administrators and heirs of John Grout had never offered to pay one half thereof, so that upon the payment of one half by the defendant the farm might have been redeemed.</p> <p>The plaintiffs filed an amended bill, in which they charged, among other things, that the defendant rendered false and fraudulent accounts in the probate office, which were allowed without notice to the plaintiffs ; and that he made sales of the testator’s lands, and procured certain persons to bid, to whom a great proportion of the lands was struck off for and on account of the defendant at prices much less than their true value, and that he had again sold many parcels at much greater prices than he paid, and that he refused to account to the plaintiffs for the gains thereby accruing</p> <p>The defendant, in his answer to the amended bill, denied that his accounts of administration were false or fraudulent, or settled without notice to all persons interested. He further stated, in answer to a charge in the amended bill, that after the assignment of the mortgage to himself and Brooks, they prosecuted an action of ejectment for the recovery of possession of the farm against Prudence Grout, the widow and one of the administrators of John Grout, and recovered judgment, and that the defendant, in the name of himself and Brooks, sued out a writ of seisin on such judgment, and by force thereof evicted Prudence Grout on the 22d of June, 1811, and thereupon took possession of the farm to his own use. He also stated, that certain parcels of land were bid off by one P. White, and that the defendant conveyed the same to him by deed of November 2, 1808, and charged himself with the proceeds of the sale in his accounts of administration ; that to induce White to take a conveyance, he represented to him the value of the lands, and promised him that if he should be dissatisfied with the purchase, or should become unable to pay for the lands, the defendant would take them off his hands by a purchase at the same price ; that in July, 1809, White having become dissatisfied and being unable to pay, the defendant, as he had accounted in the Probate Court for the proceeds, was obliged for his own security, to take from White a conveyance to his own use, and that he still held the lands, with the exception of a few lots, which he had sold. He further stated, that sales of other lands were made by him in June, 1814, and that the proceeds had been accounted for in the probate settlement of his accounts ; that certain lots were oid off by M. White and S. Gates, at the request of the defendant, and with an agreement that the defendant, after conveying the same to them in his capacity as executor, would take a conveyance thereof from them to himself, and would account for the price in his settlement of the estate, without their paying any money to him ; and he alleged that the several parcels of land before mentioned could not have been sold for a greater amount than had been obtained therefor and accounted for as above stated.</p>

Trespass quart clausum fregit. Trial before Parker c. j„ The plaintiff claimed a title under an execution extended by him upon the land as the property of Samuel Campbell, and who was the owner, unless the property had passed out of him by virtue of the following proceedings.

<p>A judge of probate has authority to examine an administrator upon oath, touching any obligation due from the administrator himself to the intestate’s estate.</p>

<p>The provision in the Act of Congress of January 9, 1815, that the direct tax laid thereby shall remain a lien on land during two years after it shall become payable, does not restrain the collector from selling the land after the two years have expired, where there has been no alienation of it by the owner.</p> <p>Where no return had been made to the clerk of the District Court of a sale of land for the United States direct tax of 1815, to enable him to give a deed to the purchaser, it was held, that a demand of a deed was not necessary in order to sustain an action by the purchaser against the collector for not causing such a return to be made.</p> <p>In such an action the declaration should contain an allegation that the tax had been duly assessed.</p>

Assumpsit to recover one third part of a sum of money paid into the several treasuries of the State, the county of Worcester, and the town of Milford, by a collector of taxes, who had collected the same of divers inhabitants of that town by virtue of a warrant committed to him by Nelson, the plaintiff, David Stearns and James Perry, assessors of the town, on an assessment made by them of State, county and town taxes for the year 1819. The parties stated a case.

Upon a case stated the following facts appeared. This was a bill in equity brought by Samuel Hadley and his wife to redeem land, the fee whereof was in the wife. On the 21st of January, 1821, the plaintiffs mortgaged the land to Abel Hadley, the defendant’s intestate, to secure the payment of a promissory note for 100 dollars in one year.

<p>In this action, which was covenant upon a lease of waterworks and buildings, with the whole control of the water in the pond, except the right which E. Bangs has to take water in logs to his garden, and a similar right reserved to the lessor, the Court held, that parol evidence was not admissible to prove that in the intention of the parties to the lease, there was likewise an exception of the right which the county of Worcester-had exercised for more than twenty year’s, of occasionally d. verting part of the water for the purpose of cleansing the county gaol, and which diversion was well known to the parties at the time of making the lease.1</p>

<p>A mortgager may plead a disclaimer in bar to a writ of entry to foreclose brought against him after he has assigned his right to redeem.</p>

<p>The owner of a mill, who is entitled to use only the surplus water not required by another mill, is bound to shut his gate when there is not a sufficiency of water for both ; but if the other mill-owner, in such case, undertakes himself to prevent the passage of the water to the mill first mentioned, he will be liable to an action if lie does not remove the obstruction as soon as the deficiency of water ceases.</p>

Assumpsit on an- order, dated April 1, 1821, payable at sight, drawn by the deputy postipaster general of the United States, at Washington, upon the defendant, who was postmaster at Watertown, in this State, in favor of the plaintiffs. At the trial, before Parker C. J., it appeared that the plaintiffs sent the bill for collection to S. Burt, who delivered it to J. Sawyer, with directions to call on the defendant and demand payment.

Entry sur disseisin. The tenant pleaded the general issue He also pleaded in bar, that the demandant, on the 19th of January, 1826, executed a deed of the demanded premises, for a valuable consideration, to one Edgarton, and that the demandant and Edgarton both knew of the tenant’s adverse possession and claim of title, and that tins action was commenced and prosecuted by Edgarton, at his own cost and risk, against and without the consent of the demandant, who had no…

<p>Action of slander. The declaration alleged that the defendant uttered and published of and concerning the plaintiff, certain defamatory words, vis. “ He is a damned liar ; he took a false oath, and I can prove it.” In the declaration there was a colloquium respecting a reference entered into, under the statute, between the defendant and one Gould, at which reference the plaintiff was duly sworn as a witness and testified; and there were innuendoes explaining the words to be a charge of perjury.</p> <p>The defendant pleaded the general issue, and special pleas in justification alleging the words to be true.</p> <p>A trial was had before Parker C. J. The report of the judge stated, that the plaintiff proved the speaking of the words. The defendant then offered to prove, under the general issue, that the plaintiff, in his testimony at the reference, said some things which were not true, which were not material to the subject of inquiry before the referees ; and he contended, that as there was no direct charge of perjury in the words uttered, the jury ought to consider that the charge of false swearing related to those matters of testimony which would not amount to perjury. But the judged ruled, that as the defendant had pleaded in justification, and so taken upon himself to prove that the plaintiff had sworn falsely in points which were material, he could not be allowed under the general issue so to limit the application of the words spoken, but that the jury should determine from the whole evidence, whether the innuendoes averred in the declaration were maintained or not. The defendant contended, that the jury ought to have taken this matter into consideration in mitigation of damages, if not in defence, under the general issue ; but there was no motion for so making use of the above facts The evidence relating to them vas before the jury, but whether it influenced their minds or not, on the question of damages, could not be ascertained.</p> <p>The defendant, in support of his pleas in justification, produced witnesses to prove the testimony given by the plaintiff an the trial before the referees, and this evidence was left to the jury, together with such explanations as were given on the part of the plaintiff by the testimony of other witnesses ; and the jury were instructed to find the several special issues for the defendant, if they were satisfied that the plaintiff had knowingly testified falsely in the manner stated in the pleas, or either of them, taking into consideration each plea separately ; otherwise to find these issues for the plaintiff.</p> <p>The jury returned a verdict, on all the issues, in favor of the plaintiff.</p> <p>The defendant moved for a new trial because of the ruling of the judge in regard to the evidence offered on the general issue, and because the jury ought to have been instructed to take that evidence into consideration in mitigation of damages.</p>

<p>Assumpsit. One count was upon a promissory note made by the defendant for 67 dollars and 85 cents, payable to S. Peck or order on the 15th September, 1826, and indorsed by Peck. Another count was upon a note for 269 dollars 42 cents, dated September, 16th, 1826, made and indorsed in the same manner.</p> <p>The defendant pleaded the general issue, which was joined. Also a plea in bar setting forth generally a usurious bargain for the loan of money, for which the notes were given. This was denied in the replication, and issue was joined thereon to the country.</p> <p>At the trial, before Parker C. J., it was proved, that the property in the notes continued in Peck until the time of the trial, Brigham having no interest therein, but the suit being •brought in his name at the request and for the benefit of Peck.</p> <p>It appeared that the note described in the first count was for a valuable consideration and not usurious, and the verdict was for the plaintiff on this count.</p> <p>In regard to the note described in the second count, there was evidence that part of the consideration of it was two notes, each for 65 dollars, and that 5 dollars in each was taken over and above lawful interest. The verdict affirmed the plea of usury, and under the direction of the Court the jury returned a verdict fo the plaintiff for the balance due on the note in ques-non, after deducting the sum taken and reserved thereon beyond the lawful interest, and three-fold the lawful interest due on the note at the time of the trial.</p> <p>The questions saved arose upon St. 1826, c. 27, which provides, that whenever, in any action brought on any contract or assurance for the payment of money, it shall appear that a greater rate of interest than six per cent shall have been reserved or taken, “ the defendant shall recover his full costs, and the plaintiff shall forfeit three-fold the amount of the whole interest reserved or taken, and shall have judgment and execution for the balance only which may remain due upon said contract or assurance, after deducting three-fold the amount of said interest; and whenever a greater rate of interest shall have been paid than as aforesaid, a remedy shall accrue to recover back three-fold the amount of the whole interest paid.”</p> <p>The defendant contended, that the jury ought to have deducted three-fold the amount taken and reserved usuriously, as well as three-fold the lawful interest due on the note ; — if he was right, the verdict was to be altered conformably.</p> <p>The plaintiff contended, that as at the time when the two notes of 65 dollars were given, the statute of 1825, c. 143, was in force, by which the taking and reserving more than six per cent, was not unlawful, or did not render void the notes, the note described in the second count was not usurious, and therefore there should have been no deduction on account of unlawful interest. If he was right in his construction of the statutes, the verdict was to be altered so as to include the sum deducted on account of unlawful interest.</p> <p>The further question was submitted to the Court, whicn party was to recover costs, in reference to the statute of 1826 above mentioned.</p>

<p>Assumpsit to recover expenses incurred by the plaintiffs in supporting'Seth Stone, a pauper.</p> <p>Upon a case stated it appeared, that the pauper was ti e legitimate son of Jonathan Stone, whose settlement was in Watertown. The pauper removed to New Salem in April, 1794, and resided there till August, 1803, when he absconded, leaving his wife there. He never returned. He had no fixed place of residence, after he absconded, until after the lapse of ten years from the time when he went to New Salem to reside. His wife remained there until May, 1804. Before the ten years had elapsed she stood in need of relief and received assistance from the town. The pauper paid taxes for more than five years during the time of his residence in New Salem.</p> <p>The plaintiffs were to recover judgment against Watertown oí New Salem, according as the settlement of the pauper snould be determined to be in one or the other of these towns.</p>

<p>Assumpsit on the following writing :—“ The town of Chari ton Dr. to David Lathe. 1821, June 9. To cash advanced to secure the property of William Thayer, which I promise to account to the town for, out of said Thayer’s property, 70 dollars. 1821, July 7. Received pay in full for the above account. David Lathe.” The declaration contained a count for money had and received. It was not alleged that any of Thayer’s property had come into the hands of the defendant.</p> <p>At the trial, before Parker C. J., it was proved, that Thayei had wandered from the State of Vermont to Charlton, where he fell into distress and was relieved by the overseers of the poor, he having a settlement in that town. He was supposed to be a person of unsound mind, and was treated as such. It was understood that he had left some property in Vermont, and the selectmen of Charlton, being desirous of indemnifying the town for the expenses incurred in his support, employed the defendant to look up and obtain possession of such property of Thayer as he could find ; and they advanced him 70 dollars, and took from him the writing above mentioned, he having stated that he had paid that sum to clear encumbrances on the property found. The defendant was authorized by a power of attorney from Thayer, procured by the selectmen of Charlton, to receive any property of Thayer in Vermont. The property found consisted in part of a tract of land pledged to secure a debt due from Thayer. The defendant paid the debt and received a deed reconveying the land to Thayer. There was also a promissory note due from one Brown, which was delivered up to the defendant by the person with whom it had been deposited</p> <p>After the defendant had obtained possession of the deed and note, one White was appointed guardian of Thayer, and as such he demanded and received the deed and note, the defendant having received no money thereon ; neither did it appear that he had been reimbursed by the guardian his expenses or any money which he had paid to redeem the property.</p> <p>A nonsuit was directed, with leave for the plaintiff to move to set it aside and have a new trial.</p>

<p>The condition of a mortgage of a farm was, that the mortgager should allow the mortgagee and another person to occupy certain apartments in his house on the premises, should provide for their support during life, and for their burial at death, and after their death should pay certain specified sums to individuals, and all the debts of the mortgagee then contracted. The farm was afterwards, in 1787, taken on execution against the mortgager and set off to the judgment creditor at an appraised value, which was stated in the return to be 66 after deducting the incumbrances thereon.” Held, that the levy and return were sufficient, and passed a good title to the judgment creditor*</p>

This was an action of assumpsit on a spécial contract between the parties, dated March 9, 1826, by which Flagg agreed “ to build and furnish Dryden, at Southwick’s factory” in Holden, “ twelve power looms for weaving satinet cloth, to be . completed by the first of August next; ” and Dryden agreed to pay Flagg “ for said looms the sum of thirteen hundred and eighty dollars,” and the expense of transportation, one third when the looms were completed, one third in one year…

•Assumpsit to recover 41 dollars paid by the plaintiffs for the defendant’s benefit.

<p>Trover for divers articles of household furniture attached by the defendant, a deputy sheriff, as the property of Jacob Shumway.</p> <p>The case was tried before Parker C. J. The plaintiffs, to prove their property, produced in evidence a written conveyance of the furniture to them made prior to the attachment.</p> <p>It appeared in evidence that Jacob Shumway owned the furniture, which was in a house belonging to Nahum Eager, which was occupied by Jacob Shumway as a tavern, that Eager, to whom Jacob Shumway was indebted, brought a suit against him, and A. H. Ward, Eager’s attorney, directed the officer who had the writ to attach the furniture. Jacob applied to the plaintiffs, one his brother and the other his brother-in-law, who were willing to assist him if they could be made secure. Being advised by counsel, they gave their note to Eager for the debt, which they afterwards paid, and purchased the furniture of Jacob, taking a bill of parcels of it, at an appraisement made by the officer who had the writ. The amount of the furniture thus appraised corresponded within a dollar or two with the amount of the debt secured ; and the fairness of the appraisement was not contested. Eager at the same time executed a lease of the house to the plaintiffs, and Jacob Shumway con-tinned to occupy it for four or five months, and then moved to a house in Sudbury, into which he removed the furniture. There was no delivery of the furniture when the conveyance of it was made, the business being transacted at the office of the attorney who had-brought Eager’s suit, and two miles from the place where the furniture was, and no contract was proved by which Jacob was to have the use of the furniture. There was evidence tending to show that Jacob, after removing to Sudbury, considered the furniture as his own, purchasing and adding to it other furniture, and crockery and glass to supply the place of some which was broken in the house.</p> <p>The defendant’s counsel insisted that the sale to the plaintiffs was void for want of a delivery, notwithstanding the lease of the house to them, they never having entered under the lease ; that Jacob’s possession of the furniture and dealing with it as his own, and making declarations to that effect, rendered it in law his property, so as to be liable to creditors who had trusted him on the belief that he was the owner of it; and that the furniture claimed by the plaintiffs being mixed with other articles of furniture owned by the debtor, so that the officer was not able to distinguish, the action would not lie.</p> <p>The case was put to the jury solely on the question, whether the transaction in Shrewsbury was bona fide, the other points being reserved for the consideration of the Court. The verdict, which was for the plaintiffs, was to be set aside, if not justified by the facts in the case ; otherwise judgment was to be rendered thereon.</p>

<p>In this action the plaintiffs alleged that they were trustees appointed to perpetuate the charity of Edward Hopkins esquire ; and the action was brought to recover the amount of a rent-charge of three pence sterling an acre upon 112 acres of land in Hopkinton, in the possession of the defendants. The defendants pleaded the general issue.</p> <p>In the Court of Common Pleas, before the trial came on, toe attorney of the plaintiffs filed a suggestion that James Savage esquire, one of the plaintiffs, had resigned the trust, and that his resignation had been accepted by the trustees.</p> <p>After evidence had been introduced by the counsel for the plaintiffs, the .defendants objected to his proceeding further in the cause until he had shown that the plaintiffs were the legal and rightful trustees of the charity. The counsel then offered to prove to the judge, by the testimony of Savage, that the record book of the trustees was accidentally destroyed by fire in 1824 ; and that it purported to contain the regular records of the proceedings of the trustees, and of their appointment from time to time, as vacancies had happened in the trust, from the first organization of the same. The admission of this testimony was objected to on the part of the defendants, because Savage was one of the plaintiffs ; and Strong J. rejected the evidence and nonsuited the plaintiffs. Whereupon the plaintiffs filed exceptions to the decision.</p>

<p>Where a husband lived in a different town from his wife, and in adultery with another woman, but occasionally visited his wife, and afterwards died insolvent, it was held, that his administrator was entitled to recover money received and promissory notes taken by the wife, previous to the death of the husband, in a trade carried on by the wife separately.</p>

<p>Trespass quare clausum, fregit. The defendant pleaded three pleas in justification, the first of which was that the locus in quo is part of a public highway. The alleged trespass consisted in the defendant’s passing from his own close across the close claimed by the plaintiff.</p> <p>In support of the first plea, the defendant read at the trial a vote of the town of Reading in 1741, that all the common lands (including the locus in quo) “ shall continue to be unfenced as they are, for the use of the old parish for highways, a training field, a burying place, and the more convenient coming at the pond with flax and creatures, and also to accommodate the neighbours that live bordering on the pond, for their more convenient coming at and improving their own lands and buildings, all of the aforesaid lands to remain unfenced as they now are, and to the use of the old parish and neighbourhood aforesaid forever, never to be disposed of for any other use whatsoever, without the consent of every freeholder in said parish.” The plaintiff’s counsel objected to the reading of this vote as irrelevant, and not tending to support the plea, but it was admitted. It appeared in evidence, that the plaintiff’s close had always been open and unfenced in front of the defendant’s close, till the spring of 1805. The parish schoolhouse had occupied a part of the westerly side of the lot. In 1805 the lot was enclosed, pursuant to a vote of the parish ; and it had been peaceably occupied by the plaintiff for more than nineteen, but less than twenty years, at the time when the alleged trespass was committed. The defendant’s witnesses testified that they had often known Mr. Prentiss (the former owner of the defendant’s close) or those employed by him, for more than thirty years, cross the land now the plaintiff’s close, then being unfenced, with cattle and horses, and several times with a cart, into his close, for the purpose of cultivating it. They also stated, that persons on foot coming to church, and children in going to school, and others who had occasion, crossed the plaintiff’s lot, then common land, whenever and wherever they thought proper ; that it was common land all round the school-house.</p> <p>The plaintiff’s witnesses testified, that no cart-path, in any direction over the plaintiff’s close, was visible, and that ther« was no appearance there of travelling with teams, horses, or on foot. It was proved that the travelled paths of the great road from Boston through South Reading to Andover, and other roads adjacent or near to the plaintiff’s and defendant’s closes respectively, were exactly the same as they had been for forty or fifty years, and were of sufficient and convenient width.</p> <p>The defendant contended, that the plea of a public highway over the locus in quo was supported by the vote of 1741, and the other evidence in the case. The plaintiff contended that that vote was irrelevant, and that the evidence in the case did not support the plea.</p> <p>A verdict was taken by consent for the defendant, on the issue joined on the first plea, with leave for the plaintiff to move for a new trial.</p>

This was a bill in equity to redeem an undivided moiety of several parcels of land.

<p>The defendant dug a ditch whereby water was conducted from his brewery to an old clay-pit in the plaintiff’s brick-yard ; where the water became stagnant and so offensive that the board of health ordered the plaintiff to fill the pit, which she caused to be done at her own expense. It was held —</p> <p>That an action on the case for a nuisance Jay against the defendant:—</p> <p>TJiat the plaintiff might bring such action, notwithstanding slie had made a contract with a third person whereby he was authorized to dig and manufacture into bricks, in the yard, as much clay as he pleased at a certain price per thousand, and to have such use of the yard as was necessary and convenient, and he did according ly use part of the yard for that purpose :—</p> <p>That if filling the pit was necessary, the expense of filling it should be included in thv assessment of damages :—</p> <p>And that as the filling of it was ordered by the board of health, it should be presum ed to have been necessary, unless the contrary were shown.</p>

<p>Case for the destruction of the plaintiff’s several fishery in the Merrimack river. The defendant pleaded the general issue, and soil and freehold in himself. Trial before Morton J.</p> <p>The plaintiff claimed the fishery by prescription. To support his title he offered in evidence the record of a judgment in a former action between the same parties, respecting the fishery at the same place, in which Melvin was defendant, and Whiting was plaintiff; which was admitted without objection.</p> <p>That was an action of trespass, in which it was alleged that Melvin entered the close of Whiting, covered with water, and there took fish. Melvin pleaded that he was seised in fee of land on the bank of the Merrimack river, and that he had by prescription a free fishery in the fishery mentioned in Whiting’s declaration, in which fishery he (Melvin) and all those whose estate he had, fished, and still of right ought to fish, at his and their free will and pleasure. Issue was taken on these allegations ; and the jury found that Melvin, and all those whose estate, &c. from time whereof, &c. have been used and accustomed to fish in the fishery at their free will and pleasure, and that Melvin still of right ought to fish in the fishery.</p> <p>The plaintiff' also introduced evidence tending to show that he, and those whose estate he had, had possessed the fishery for more than sixty years and beyond the memory of man. To rebut this the defendant offered parol evidence of the testimony given on the trial of the former action, by two witnesses who had since deceased. This was objected to by the plaintiff, but was admitted.</p> <p>The plaintiff contended that the record of the former judgment was conclusive evidence of his title to the fishery as set forth in his declaration. The defendant, on the other hand, contended that it proved conclusively that the plaintiff had no such exclusive right in the fishery as he had described, and as was necessary to support this action.</p> <p>The jury were instructed that the record was not conclusive either for the plaintiff or the defendant; that although it established in the plaintiff a right to take fish in the fishery in question, yet it did not support his claim to the exclusive right to the fishery, nor show such a property in him as was necessary to the support of this action ; but that this must depend upon the other evidence in the case.</p> <p>A verdict was found for the defendant. The plaintiff excepted to the above instructions ; if they were wrong, or if the parol evidence of the testimony of the deceased witnesses was inadmissible, a new trial was to be granted; otherwise judgment was to be rendered upon the verdict.</p>

<p>The case of Shute v. Barrett was an action on the case for slander. The words complained of charged the plaintiff with adultery, fornication, open and gross lewdness, and lewd and lascivious association and cohabitation with an unmarried woman.</p> <p>The case was tried on the general issue, before Morton J., and the following facts appeared in evidence. The plaintiff was a married man, but had separated and lived apart from his wife. He had been employed by the overseers of the poor of Malden for four years to take charge of the almshouse. A female named Lydia Oakes, the plaintiff in the other action, was employed there during the same time. In March, 1825, at a town meeting, in a debate relative to the appointment of a new superintendent of the almshouse, the words for which this action is brought were spoken; they amounted to a charge against the plaintiff and Lydia Oakes of living in a state cf illicit intercourse.</p> <p>Evidence which was introduced in relation to the plaintiff’s character showed that he was a man of small property, that before he was appointed superintendent some of his own family had been assisted by the town, that he was by trade a shoemaker, that until he received this appointment his character as an honest man and a man of correct habits was perfectly fair and unimpeached, except that reports unfavorable to his conduct in relation to Lydia Oakes had got into circulation, but that he had separated from his wife, whose mind was at times deranged.</p> <p>Sixteen or eighteen witnesses on the part of the defendant, stated that reports unfavorable to the chastity of the plaintiff and Lydia Oakes had been prevalent since they had been employed to superintend the almshouse ; but none of them had any personal knowledge of any illicit intercourse. The witnesses stated that these reports Were believed by some and disbelieved by others, and several witnesses stated that these reports did not generally circulate till about the time of the town meeting. Several witnesses also stated that they had seen the plaintiff and Miss Oakes together at several public places, at Bunker Hill, at Harvard College commencement, and at a muster, and that they walked arm in arm.</p> <p>The defendant was reputed to be a man of large property.</p> <p>One of the overseers testified, that a short time before the town meeting, he informed the defendant that he had investigated the report that Lydia Oakes had been found in bed with the plaintiff; that the woman who had circulated it stated that Shute slept with one of his children, that he got up very early and went to Marblehead, that after he had gone the child cried a good while, and that then Miss Oakes got up and went and lay down on the bed with the child, and that she went into tht room, and thought she would have some sport, and said she founn Mist Oakes in Shute’s bed, and that he, the witness, was satisfied with the explanation ; to which the defendant said that he was satisfied too, if that was the case.</p> <p>The j ry found a verdict for the plaintiff, and assessed damages at 707 dollars 50 cents. The defendant moved for a new trial on the ground that the damages were excessive.</p> <p>The case of Oakes v. Barrett, was an action for "he same words. The action was tried before Morton J. The evidence introduced was substantially the same as that in Shute v. Barrett, with the following additional evidence.</p> <p>The plaintiff was an unmarried woman, of perfectly fair character, but without property.</p> <p>Henry Gardner, a witness for the defendant, testified, that three or four years ago he had a conversation with the plaintiff, m which she inquired of him how he knew that she and Shute lodged together, to which he replied that he did not know it, but that he had heard such a report; that she became very angry and vowed, that if her character was gone, she would stay and see it out; that he then told her that he had heard that she had sent word to Mrs. Shute that she went whortleberrying with her husband ; that the plaintiff asked what harm there was in that.</p> <p>Mrs. Shute testified, that the plaintiff asked her if it was not impudent to send word to her not to go blueberrying with Shute ; that the plaintiff said that she could walk with him when she pleased, and could have him for all his wife could do, and would have him if she pleased ; and that the plaintiff seemed very angry when she said this.</p> <p>The jury returned a verdict for the plaintiff, and assessed damages at 591 dollars 67 cents.</p> <p>The defendant moved for a new trial, on the ground that the damages were excessive.</p>

This was an action on a promissorj note dated August 2, 1823, by which Parker, as principal, and the other defendants, as sureties, jointly and severally promised to pay the Mem mack Bank or order 600 dollars in sixty days and grace. The writ is dated June 28, 1826. Parker was defaulted; the other defendants pleaded the general issue.

<p>Where a bond is signed and sealed, but not delivered to the obligee, and it is after-wards put into the possession of the obligee by a person who has no authority to deliver it, the obligee cannot maintain any action on the instrument.</p> <p>R was appointed guardian of a minor, and a letter of guardianship was made out for him at the probate office, on which was minuted “ to be delivered when bond is fil ed.” R acted as guardian for more than two years, until his death. He and two other persons as his sureties executed a guardianship bond to the judge of probate in the presence of witnesses, and R took it and kept it among his papers, where it «as found at his death. His administrator filed the bond in the probate office, with a written declaration on it, that he did not intend to affect the legal rights of the parties by thus filing it. It was held, that no action could be maintained upon the bond by the judge of probate, as it had never been delivered.</p>

<p>Suicide committed by a testator soon after making his will, is not conclusive evidence of insanity.</p> <p>Upon an appeal from a decree of the judge of probate disallowing a will on the ground that the testator was not of sound mind, the right to open and close is with the appellant, as lie is in the first place to prove the execution of the will and to examine the subscribing witnesses as to the sanity of the testator.</p> <p>A will being proved primé. facie by the statute evidence, the burden of proof is on the party objecting to its allowance on the ground of insanity, to show that the testator was not of sound mind ; and if the evidence is doubtful, the presumption of law in favor of sanity is to have its effect.</p>

<p>This was an appeal from a decree of the judge of probate, which disallowed a certain charge in the account rendered by the appellant, as administrator of William Buckley. The item disallowed, was the following charge against the estate, viz. “ 39,570 bricks appraised belonging to Judge Ward, $217,63.”</p> <p>The facts in relation to this charge, are as follows. These bricks were included in the inventory of the estate, with which the appellant was charged.</p> <p>Artemas Ward, on January 1, 1823, leased by indenture to Buckley, the intestate, a brick-yard on Lechmere Point, to hold till January 1, 1828 ; “Ward reserving to himself the right of expelling said Buckley from the premises, if he shall fail to perform all and each of his several covenants hereinafter mentioned.”</p> <p>“ Secondly, the said Buckley, during the term aforesaid, may manufacture bricks from the clay upon the premises, to any amount that he may think proper, and when made, appro priate the same to his own use.”</p> <p>covenants, first, that every year, during the continuance of the lease, he will manufacture, at least to the amount of 400,000 bricks, and pay for the clay, for every thousand of bricks, the sum of fifty cents, and the like sum for each thousand he may make over and ab> ve 400,000. Secondly, that he will pay to Ward on the first day of December annually during the continuance of the lease, such su i of money as may at those times respectively be due to Wa d under the contract: “Provided, however, and it is expressly agreed and understood by and betwe/ n the parties to these presents, that in lieu of such sum of money, to be paid as aforesaid, said Ward may, at his option, from time to time, as bricks shall be manufactured by said Buckley, take to himself and appropriate to his own use, at the fair market price, at the kiln, such quantity of bricks as shall be fully equivalent to the sum which the said Buckley has stipulated to pay as aforesaid.”</p> <p>A contract for the sale of a kiln of bricks by Buckley to A Townsend, dated November 16, 1824, contains the following clause, — “ The bricks are hereby sold to said Townsend, subject to the lien of Hon. Judge Ward, for the land rent, and to no other lien.”</p> <p>Buckley, in 1825, dug clay in the brick-yard and manufactured 374,000 bricks ; and died November 23, 1825, leaving 187,000 bricks in the yard, not having paid Ward for any part of the clay. Ward, after Buckley’s death, entered into the yard for the non-payment of the money for the clay, the 187,000 bricks still remaining in the yard, no part of them having been taken, sold, or disposed of by the appellant. Ward, in May, 1827, which was as soon as a market' could be obtained for bricks at a fair price, took 39,570 bricks, part of the 187,000, at 5 dollars a thousand, at the kiln, as payment for the clay. The appellant afterwards took and sold the residue of the bricks at 5 dollars a thousand, and was charged for them at that rate by the judge' of probate, in the settlement of his account, Buckley’s estate was declared insolvent, but Ward did not exhibit any claim against it before the commissioners appointed to receive and examine claims.</p>

Trespass for taking the plaintiff’s cow. Plea, the general ssue, accompanied with a brief statement setting forth that the defendant was an assessor of the town of Stow, that the plaintiff was taxed as belonging to the northwest school district his proportion of a school district tax, and that the cow was dis-trained by the collector of taxes for the plaintiff’s tax.

Trespass. On a case stated by the parties, it appeared that the plaintiff was assessed by the assessors of Waltham for 1826, to the town and county tax, 24 dollars, 71 cents, and to the ministerial tax, 17 dollars 36 cents. This assessment except 14 dollars, was made on a farm in Waltham in the plaintiff’s possession under a lease from the President and Fellows of Harvard College.

<p>The owner of land makes a deed thereof, not fraudulent, to his grandson, in eon* sideration that the grandson shall live with and work for him during the grantor’s life, notwithstanding that the grandson is to come into possession when he arrives at the age of twenty-one, upon condition that he bring in to the grantor a certain proportion of the yearly produce, &c. and within one year after he becomes of age he is to pay the grantor or his order a certain sum of money ; provided nevertheless, that if lie should not live to take the premises into his possession, &c. the deed should be void. Held, that this was a covenant to stand seised to the use of the grandson, and that he having performed the conditions until lie became of age, the possession was transferred to the use without an actual entry, and a seisin thereby vested in him, subject however to be defeated by the grantor or his heirs upon the non-fulfilment of the conditions which were to be performed after the grantee became of age.</p> <p>The oath required of an executor &c. licensed to sell real estate, must be taken before he fixes on the time and place of sale, and not merely before he gives a deed to the purchaser.</p>

<p>To indorse means to put a name on the back of a paper.</p> <p>Therefore where in a scire facias brought to recover costs against the indorser of a writ, the defendant pleaded that he did not indorse his name on the back of the writ, concluding with a verification, and the plaintiff replied that the defendant did indorse his name on the writ, and the defendant demurred specially, assigning for cause the omission of an averment that the indorsement was on iht back of the writ, which it is required to be by St. 1784, c. 28, § 11, the replication was held sufficient, to indorse meaning the same as to indorse on the back.</p> <p>Where this Court orders a new indorser of a writ, under St. 1784, c. 28, § 11, in an action originally commenced in the Common Pleas, an indorsement on the office copy of the original writ filed in this Court, is sufficient to bind the indorser, without any indorsement of the original writ in the court below.</p> <p>A new indorser of a writ, who is substituted for the original indorser, is liable for all the costs recovered against the plaintiff, arising from the commencement of the action, not merely for those accruing subsequently to the indorsement.</p> <p>A conclusion of a replication with the words,c< of this he puts himself on the country,” instead of “ this he prays may be inquired of by the country,” is informal Where a replication was demurred to specially for this informality, the Court al lowed the plaintiff to amend without any terms.</p>

<p>By a provincial statute of 1741, it is provided, that the trustees of a charity may tease certain lands in Hopkinton and Upton to tenants, to hold to them, their heirs and assigns forever, reserving a certain rent, the tenants covenanting to pay all province taxes for their lands, to be rated by the General Court from lime to time for what they are worth above the rent reserved. In 1787 the legislature pass a resolve that the lands shall be taxed like other lands, and the money oe paid -.‘nto the hands of the treasurer of the Commonwealth, who is directed to pay the rent over to the trustees. The rent is paid accordingly until 1823, after which no tax having been laid by the legislature, the rent remains unpaid. Held, that the legislature never intended to assume the obligation of paying the rent, except out of the taxes ; that the receipt of the rent through the treasurer of the Commonwealth by the trustees, did not discharge the tenants from their obligation to pay the rent; and that when the legislature ceased to tax the lands, the liability of the tenants to pay rent immediately to the trustees revived.</p>

<p>Assumpsit for money had and received. Pleas, the general issue and the statute of limitations.</p> <p>The action was- commenced by Seth Miller, the testator, October 30, 1821.</p> <p>At the trial, before Morton J., it appeared, that a tract of land in Middleborough was divided many years ago into eight lots. The testator and the defendant were owners m equal parts of one of these lots, containing twelve acres, as tenants in common. The defendant owned likewise several of the others adjoining the one owned in common.</p> <p>The defendant sold the wood standing, in lots, to different purchasers, bounding each lot; and the boundaries thus given, and within which the several purchasers cut off the wood, included a portion of the lot owned in common by the testator and the defendant. Leases were given of these lots to the several purchasers of wood, to enable them to cut off the wood.</p> <p>A part of the wood was sold to the purchasers to be coaled, and to be paid for by one half of the coal, delivered at Fall Brook furnace. The coal was delivered at the furnace in 1816 and 1817, and credit for one half of it was given upon the books at the furnace, to the defendant.</p> <p>Another portion of the wood was sold in June, 1815, and was to be paid for when it was cut off; but it was two years before it was all cut off. Payments were made to the defendant at differents times, beginning a considerable time after the purchase.</p> <p>Another portion was sold in June, 1815, to be paid for after it should be cut off. For this a note on interest was given, which was paid at different times, the first payment being a considerable time after the purchase.</p> <p>For some of the wood sold, the defendant received in payment real estate.</p> <p>There was no evidence of any request by the testator to the defendant to account, or to pay the money received by him, nor that the real estate received in payment for wood had been sold by the defendant.</p> <p>Upon this evidence the jury were instructed to find a verdict for the plaintiff for one half of the amount which the defendant had received in payment for wood sold from the lot owned in common, within six years before the commencement of this action, whether the payment was made in money or real estate, or otherwise. They were also instructed to include all the payments made upon the note within that period, and the credits given to the defendant at the furnace, provided they were satisfied that he availed himself of them.</p> <p>A verdict was found for the plaintiff, and the defendant ex cepted to the above instructions.</p>

Assumpsit. At the trial, the deposition of one Mansfield, offered by the defendant, was objected to on the ground that the taking of it was not duly notified to the plaintiff. It appeared that notice was given to Kilborn Whitman, esquire, as the plaintiff’s attorney. The action was removed to this Court by demurrer to the plea, with a reservation of the right to plead anew.

<p>This was an action-on the case. The plaintiff, in his first count, alleged that he was seised of a pew in the meetinghouse in the parish, and that the defendants, in pursuance of votes of the parish, pulled down the meetinghouse without providing any sufficient indemnity to the plaintiff as a pew-holder. The second count alleged that the pulling down was an unnecessary, wanton and wasteful act on the part of the parish, the meetinghouse not being ruinous or greatly out of repair, but being a safe, convenient and honorable place of public worship. The defendants pleaded the general issue.</p> <p>The defence was, that the meetinghouse had become so old and decayed and that the interior was of so inconvenient structure, as to render it necessary and proper to take it down and rebuild, and that the parish was under no legal obligation to provide an indemnity for pew-holders.</p> <p>Much evidence was introduced by the defendants tending to show that the house was inconvenient, decayed, and unfit to be longer used as a place of public worship. The plaintiff introduced evidence to counteract this, and to show that the pews were valuable to the owners. There was no evidence that the parish acted maliciously or wantonly.</p>

<p>Assumpsit to recover expenses incurred in supporting Sarah S. Clapp, a pauper.</p> <p>The parties agreed that the pauper was the legitimate daughter of Michael Clapp ; that she never gained a settlement in her own right; that Michael gained a settlement in Hanover, which continued until his decease in 1803 ; that after his decease, his widow, the mother of the pauper, removed to Scituate and there gained a settlement in her own right during the minority of the pauper, who removed with her mother.</p> <p>If the pauper’s settlement was still in Hanover, the defendants were to be defaulted ; if otherwise, the plaintiffs were to be nonsuit.</p>

<p>To a complaint against a mill-owner for flowing land ten years, the respondent pleads that the complainant ought not to have a jury to estimate any damage against her for damage sustained during a portion of the time, for that before a certain day specified, she was neither the owner nor occupier of the mill or dam. Plea held bad, as not covering the whole complaint, nor showing any reason why the complainant should not have a jury.</p> <p>A mill-owner is not liable under St. 1795, c. 74, (“ for the support and regulation of mills,”) for damage done by flowing before his title commenced.</p>

<p> Writ of dower. </p> <p>The tenant pleads, that the land in which dower is demanded is a lot of wild swamp land and wholly in a state of nature, jé ling no annual profits or income and incapable of cultivation, and is not now, and was not during the coverture of the wife with Nathan Warren, her former husband, adjoining to, parcel of, or connected with, any other estate of Warren.</p> <p>The demandants reply, that Warren, during the coverture, was seised in fee of a dwelling-house and a lot of land adjoining, containing thirty acres, the same then and ever since being wholly improved land, and under cultivation, of which the wife has been endowed; that Warren, during the coverture, was likewise seised in fee of the demanded premises, containing eleven acres of wild swamp land, this lot affording wood, timber and materials suitable for fire-bote, house-bote and fencebote for the wife for her necessary fuel and for the necessary repairs of such part of the dwellinghouse, and of the fences on such part of the land, as were assigned to her as her dower; the same lot having been used by Warren for the same purposes ; that this lot is within one mile of the dwellinghouse and cultivated land, and is the only lot of wood and timber that was owned and used by Warren, during the coverture, for the purposes before mentioned.</p> <p>The tenant makes a rejoinder, to which there is a general demurrer.</p> <p>The question was upon the sufficiency of the replication.</p>

Assumpsit for money had and received, for the purpose of recovering the plaintiff’s proportion of the proceeds of three fishing trips performed by him in the defendants’ vessel called the Clarion. Plea, the general issue.

<p>Writ of right to recover certain land in Fairhaven.</p> <p>The tenants pleaded, first, the general issue.</p> <p>The second plea was, that one Alden Spooner was seised of the land in fee, and that he conveyed the same to Walter Spooner by his deed duly executed in fee, from whom it descended to the wife of Humphrey Davis, and that afterward Alden Spooner conveyed the same land to the demandant, he, the demandant, “ then well knowing that Alden Spooner had before that time conveyed the same premises to Walter Spoon-er in manner aforesaid,” and that the tenants thereafterward entered on the demandant and ejected him.</p> <p>The demandant replied, that Alden Spooner did not convey the land to Walter Spooner, as alleged in the plea; with a tender of an issue to the country.</p> <p>The tenants rejoined, that the demandant was estopped to say that Alden Spooner did not, by his deed duly executed, convey to Walter Spooner, because the tenants had heretofore impleaded the demandant in an action of ejectment, in which the demandant pleaded, that at the time when Alden Spooner conveyed the demanded premises to him, he, the demandant, “ had no knowledge that Alden Spooner had before that time conveyed the demanded premises to Walter Spooner that to this the tenants replied, that the demandant did know that Alden had before conveyed to Walter ; that an issue was joined thereon, and that the jury found that the demandant, at the time of the conveyance to him, “ had knowledge that Alden Spooner had before that time conveyed the demanded premises to Walter Spooner and that judgment was rendered according to the verdict.</p> <p>The demandant demurred generally.</p>

<p>A militia court-martial may sentence the accused to removal from office and likewise to pay a fine, the St» 1821, c. 92, § 9, authorizing the punishment by fine, being cumulative.</p> <p>The approbation of the sentence of a court-martial by the officer who ordered the court, ought to be certified under his own signature, and not under that of his aidde-camp. Semble»</p> <p>The members of a court-martia ordered for the trial of several complaints against several officers, must be sworn respectively for the trial of each complaint.</p> <p>The opinion of the judge-advocate on any question of law arising in a trial before a court-martial, ought to be reduced to writing and delivered to the court, so that they may have it with them when deliberating on the question.</p>

<p>This was an action of waste against a tenant in dower Referees had been appointed to view the place supposed to have been wasted, with the powers of a jury, and if waste had been committed, to assess the damages ; and to present for the consideration of the Court any questions of law which might arise ; and the case came before the Court upon their report.</p> <p>In regard to the statute of limitations, which had been pleaded, the referees reported that they were of opinion, that although the action of waste is a mixed action, being for damages as well as forfeiture of the land, it is not included in and barred by any statute of limitations of this Commonwealth.</p> <p>The woodland described in the declaration was disconnected from the homestead farm of the defendant’s husband, (on which she has lived since his decease,) and distant from it about two miles. The husband cut wood on this land and used it for fire-wood ; and the defendant had not cut an unnecessary quantity for this purpose. She cut sparsim over the whole lot. There were upon the lot several pine trees fit for fire-wood, some of which the referees thought she might have lightfully cut for fire-wood, but oak had been mostly or wholly cut by her.</p> <p>The reversionary interests in the woodland and in the homestead, were in different individuals. The defendant cut upon the woodland four white-oak timber trees, from which posts were made and used in repairing fences on the homestead. She likewise cut two white-oak trees on the woodland, which were sold by her for machine shafts, she receiving in exchange a quantity of fire-wood as great or greater than the trees would have made if used for that purpose.</p> <p>If cutting these six trees and appropriating them as above mentioned constituted waste, the referees assessed the danages at thirteen dollars.</p> <p>The trees used for posts and for shafts were all cut between seven and ten years before the hearing, except one of the trees used for posts, which was cut in 1826.</p>

<p>Assumpsit for the board and nursing of William Hor, a pauper, from October 2, 1826, to November 20, of the same year, at the rate of five dollars a week, and the expenses of die attending physician. Plea, non assumpsit as to all of the demand, except six dollars and fifty cents, and a tender of that sum.</p> <p>At the trial, before Morton J., it was admitted, that the pauper’s settlement was in Attleborough. He was taken ill at Seekonk, September 11th, 1826. Notice was given to the overseers of Attleborough October 2d. Within thirty days after the receipt of this notice, they gave notice to the overseers of Seekonk, that they admitted the pauper’s settlement to be in Attleborough, and they went to his residence for the purpose of removing him, and with suitable means to effect his removal; but in the opinion of his attending physician, and others who saw him, he could not be removed with safety. As soon as he could be removed with safety, but not within thirty days from the receipt of the notice, the overseers of Attleborough did remove him.</p> <p>The defendants contended, that inasmuch as they had done all in their power to remove the pauper within thirty days, and had actually removed him as soon as it could be done with safety, they had brought themselves within St. 1821, c. 94, § 3, which enacts that a town in which a pauper has a settlement, shall not be subjected to a greater expense than at the rate of one dollar per week, for supplies furnished to the pauper by another town, “ provided it shall cause such pauper to be removed within thirty days from the time of receiving legal notice, that such support has been furnished.” But this objection to the plaintiffs’ recovery was overruled.</p> <p>The defendants then offered evidence to prove, that at the time when they attempted to remove the pauper, they made a contract with the person who had before boarded and nursed him, and also with the physician who had attended him, to continue to do the same at a certain price, at the expense of Attleborough. The plaintiffs contended that this, if true, did not bring the case within the statute. But as there was con tradictory evidence on this point, the judge overruled the objection and submitted the question to the jury ; who found that such contracts were made by the defendants, and that they tendered an amount sufficient to cover the support of the pauper at one dollar a week up to the time of the contracts.</p> <p>The plaintiffs moved for a new trial.</p>

<p>A deed of land and a bond from the grantee to convey it to the grantor, bearing different dates but executed and delivered at the same time, constitute a mortgage.</p> <p>Although such bond may not be recorded, yet a subsequent purchase or attachment of the land with notice of the bond, will not be valid. Semble.</p> <p>To constitute such notice, the purchaser or creditor must know or have reason to believe that the bond is of the same date with the deed, or so executed and delivered as to form a part of the same transaction.</p>

<p>An application to a minister of the gospel to join with his society in calling a mutual council to consider the expediency of dissolving his pastoral relation with the society, on account of alleged misconduct on his part, ought to state substantially the charges against him intended to be laid before the council.</p> <p>If upon a regular application for such purpose, the minister declines signifying his assent or dissent until the society shall comply with unreasonable conditions proposed by him, his conduct will amount to an unreasonable refusal to join in calling a mutual council.</p> <p>Where some of the charges made against a minister and laid before a council furnish ground for a compulsory dissolution of his contract with his society, and others do not, and the result of the council states that several of the charges were proved, but without specifying which, their recommendation of a dissolution of the contract can have no effect.</p> <p>Parol evidence is not admissible in such case to show which charges the council considered to be proved.</p> <p>An ex parte council should be composed of men who are presumed to be impartial and who have not prejudged the case :— so that where some of the members of a council, called by the society alone, had been members of a previous council, which had decided against the minister upon the same charges, a similar result of the ex parte council was held to be of no validity.</p>

<p>Where a person summoned as trustee, who was indebted to the principal defendant ’ at the time of the service of the writ, had before that time indorsed a note of the defendant, to a larger amount, which became payable before the trustee made his answer, arid which he was compelled to pay as indorser before making his answer, in consequence of the maker’s failing to pay it, it was held, that the supposed trustee might set off the amount thus paid by him against the debt due from him, and that therefore he could not be chargeable.</p>

<p>An agreement, partly verbal and partly in writing, was made between T and S, by which T was to furnish the materials and S the land for the erection of salt-works, to be owned by them in common, three fourths by T and one fourth by S, and each was to have the right of entering upon, repairing and using the salt-works whenever he should think it necessary. In pursuance of the agreement, S procured 0 lease of land to himself during the term of time that salt-works should be erected and used on the land. S afterward conveyed all his right, title and interest in an undivided fourth of the salt-works to C and his heirs, covenanting that he was seised in fee of the granted premises and warranting the same ; and C levied an execution on the other three fourths as the real estate of T, S and the lessor of the land acting as appraisers. The demandant then levied on the whole of the land and salt-works as the real estate of C, entered into possession and took the profits. Three fourths of the salt-works were afterward taken as personal property on an execution against T and sold to the tenant, and C made to the tenant an assignment of the fourth part which S had formerly conveyed to C, and the salt-works were then held and occupied by S and the tenant, pursuant to an agreement between them, until the death of S. In a writ of entry to recover the whole land, with the salt-works, it was held : —</p> <p>That S took by the lease an estate for life, determinable upon the salt-works ceasing to be used :—*</p> <p>That the demandant acquired by his levy all the original title of S in one fourth of the demanded premises, but that his right of action was destroyed by the death of S ; —</p> <p>That T was not a tenant in common of the land with S : —</p> <p>That C, by his levy, became actually seised by disseisin of three fourths of the land, but that this was a wrongful seisin, which was defeated by the subsequent entry of S : — and</p> <p>That C did not gain a title by estoppel as against S and his lessor by reason of their acting as appraisers in the levy of C’s execution against T.</p> <p>Where a tenant for life conveys “ all his right, title and interest55 in the land to the grantee and his heirs, with a covenant that he is seised in fee, only the life estate passes, for the covenant cannot enlarge the words of the grant so as to pass a fee by disseisin.</p>

<p>Where an indictment, containing only one count, sets forth, in aggravation of the of-fence charged, a former conviction of a similar offence, a nolle prosequi as to the matter in aggravation may be entered after a conviction on the whole indictment.</p> <p>Where the defendant was convicted generally upon an indictment charging him as a receiver of stolen goods and alleging a former conviction for a similar offence, but no evidence was produced to prove his identity with the person named in the former conviction, the point not being admitted nor denied before the jury, a new trial was granted, because the supposed former conviction had a tendency to induce the jury to be satisfied with less evidence than if his character had not been thus impeached.</p>

<p>This was an action of assumpsit. The first count was on a conditional promissory note, to be void if the plaintiff failed to perform an agreement of the same date with the note, by which the plaintiff, for the sum named in the note, contracted to erect for the defendant on his land, by a certain day, a house of a certain size, and to be built in a specified manner; this count averred that the house was built pursuant to the contract. Another count was for work done and materials found, and upon a quantum meruit for building a house on the defendant’s land at his request. The declaration also contained the common money counts, and counts upon two other promissory notes.</p> <p>On the trial, before Morton J., on the general issue, it appeared that the plaintiff erected a house upon the defendant’s Iand; within the time and of the dimensions stated in the contract, but that in workmanship and in materials it was not according to the terms of the agreement.</p> <p>It appeared that the defendant, who lived near the place where the house was erected, after the date of the contract, had requested the plaintiff to begin the house which he had agreed to build ; that during the progress of the work the defendant visited the place almost every day, and sometimes oftener, and had an opportunity to see all the materials as they were used, and all the work as it was done ; that he objected to parts of the work as it was done, and especially to the'clapboards, as not being according to the contract; that after this he continued to give directions about the house, and particularly directed some variations from the contract. With much of the work he, from time to time, expressed himself to be satisfied, but almost always declaring at the same time that he was unacquainted with, and no judge of such work. Soon after the house was done the defendant refused to accept it. But there was no evidence tending to show that the defendant, in any way, informed the plaintiff, or that the plaintiff had any knowledge, that the defendant did not intend to accept the house, till after it was finished.</p> <p>The plaintiff’s counsel admitted that he had not fulfilled his contract. But they offered evidence of the value of the house when completed ; and contended, that the defendant having become the owner of the house, and having permitted and encouraged the plaintiff to proceed in finishing the house after he (the defendant) had discovered that it was not according to contract, the plaintiff might waive the first count, and recover upon the others the value of the house. This evidence was objected to by the defendant’s counsel, but admitted.</p> <p>The defendant afterwards gave in evidence three receipts for money paid by him to the plaintiff, one being towards the payment of the conditional note, before the commencement of the house ; the others, on account of the two other notes, which they exceeded by twenty-three dollars.</p> <p>In ordér to reserve the question of law for the whole Court, the judge instructed the jury to find a verdict for the plaintiff ^0T sum which in their opinion the house was worth to the defendant when it was completed, deducting the twenty-three dollars and the other payments made by the defendant.</p> <p>The jury returned a verdict for 644 dollars 76 cents.</p> <p>To the above orders and instructions the defendant excepted. If they were right, judgment was to be entered according to the verdict; if wrong, a new trial was to be granted, and such other orders made as the Court should think right.</p>

<p>traveller, in order to be entitled to recover damages of a town &c., for loss caused by a deficiency in a road, is not bound to look far ahead in order to guard against obstructions which ought not to be suffered to exist.</p> <p>Thus, where a person travelling with a horse and wagon might, from an eminence in the road, have seen that a causeway at a considerable distance, which he intended to pass over, was covered with water, but when he descended the hill the causeway v/as out of sight until he had proceeded too far either to turn back or go on with safety, it was held, that hitherto he was not guilty of negligence ; and as he then used ordinary care in endeavouring to extricate his horse from the danger, but without success, he was held entitled to recover for the loss.</p>

<p>Assumpsit for the support of a pauper, who was supposed by the plaintiffs to have acquired a settlement in West Bridge-water, by virtue of St. 1821, c. '82, incorporating that town, (previously a part of Bridgewater,) which enacts, “ that all persons who may hereafter become chargeable as paupers to the said town of Bridgewater, or West Bridgewater, shall be considered as belonging to that town on the territory of which they had their settlement at the time of passing this act, and shall in future be chargeable to that town only.” At the trial in the Common Pleas, before Williams J., it appeared, that the pauper and his ancestors, so far back as the memory of living witnesses extended, had resided on the territory now inc-uded in Bridgewater; but the plaintiffs alleged that he was the descendant of James Keith, the first minister in Bridgewater, and after offering evidence to prove his pedigree, they undertook to prove the settlement of Keith to have been within the territory now West Bridgewater. For this purpose they offered in evidence an extract from the town records of Bridgewater, before it was divided into several towns, purporting to contain a grant in 1664 of certain lands (bounding them by monuments) and a dwellinghouse thereon, from the town to Keith, in consideration of his settling among them in the gospel ministry. Also other votes and acts of the town regarding him as their minister, increasing his salary, &c. for many years following. Also Keith’s last will, dated July 20, 1718, and duly proved, by which he devised to his five sons, his “ homestead.” Also the deed of the five sons to Ephraim and William Fobes, dated March 18, 1724, conveying “ the lands and tenements given to them by said last will,” and describing the same by the monuments mentioned in the original grant of 1664. The plaintiffs also offered to prove, by deeds and records of the mesne conveyances from that time to the present, and by witnesses who knew the monuments above mentioned, that the land and house granted by the town to Keith, were in the territory now West Bridgewater. But the judge ruled that this was not competent evidence to prove that the domicil or residence of Keith was in that territory, and the jury returned a verdict for the defendants. To this opinion and direction the plaintiffs filed exceptions.</p>

<p>The respondent in a process of foreign attachment discloses that he has executed a bond to the principal defendant, with condition to pay him a certain sum ; that the defendant has written a letter to a third person, stating that a part of the consideration of the bond proceeded from other persons, and that a corresponding part of the sum secured was due to them ; that the respondent believes the letter (which he offers as part of his answer) to be true, and that the like information was given to him at the time when he executed the bond. It was held, that the letter was properly made a part of the answer, its contents being verified by the respondent; that the answer showed that the whole amount of the bond was not the property of the defendant; and that the respondent should not be charged as trustee for that oart which was due to the other persons.</p>

This was an action on the case. The plaintiff declares, that from August 1,1813, he has been seised and possessed of an ancient mill and dam, in and across Neponset river, and that on that day the defendants wrongfully heightened a dam across the same stream below the plaintiff’s mill, and have ever since kept their dam higher than it ought to have been raised, whereby the wheels of the plaintiff’s mill have been retarded and obstructed, “ and the profits thereof diminished…

<p>Mill creek is a natural stream running out of Charles river into Neponset river. The proprietors of Mills on Charles River were incorporated by St. 1797, c. 45, and the proprietors of Mills on Mill Creek and Neponset River, by St. 1797, c. 77. In pursuance of the provisions of St. 1808. c. 8, § 2, and St. 1808, c. 100, § 2, Elijah Brigham, Jonas Kendall and Loammi Baldwin were, in 1809, appointed by this Court, commissioners, with the authority of commissioners of sewers, for the purpose of removing obstructions in Mill creek and Charles river, and fixing such permanent boundaries m each, as would secure the proportion of water which they should determine might run in each, agreeably to the statutes last mentioned. They were directed by the commission to make return of their doings to this Court as soon as might be, but the statutes contain no provision to that effect. The com missioner's drew up their report in September, 1813, but from accident it was not returned into Court until 1826, when this petition was presented by the Proprietors of Mills on Charles River tn have the report accepted and recorded.</p> <p>The case was spoken to several times by Gorham, on behalf of the petitioners, and Richardson, on behalf of The Proprietors of Mills on Mill Creek, &c.</p>

This was a petition of Lewis Thayer and Relief Thayer is wife, in her right, and Mary Thayer a minor, by guardian, to have their shares (one quarter each) in a parcel of land containing two acres and a half, set off to them in severalty. Lewis Withington, one of the respondents, pleaded that he was sole seised of the land. The petitioners replied that they were seised as tenants in common with Withington and others ; and upon this, issue was joined.

Assumpsit. The first count alleged, that the defendants received of the plaintiff three trunks of boots to be sold and the proceeds of the sale to be accounted for and paid over. The second count was for money had and received. The trial was before Morton J. upon the general issue. The writ was dated October 4, 1821. It appeared that the plaintiff, early in the spring of 1819, consigned three trunks of boots to the defendants at Blakely, in Alabama, to sell on commission.

<p>Debt for an escape. Plea nil debet.</p> <p>At the trial, before Morton J., it appeared, that Jeremiah Baker was committed to gaol on an execution against him in favor of the plaintiff, and that after remaining in gaol twenty-four hours, he was discharged by the gaoler. When Baker was committed, he stated to the gaoler that he had a cold, was wet, and needed refreshment, and that he wished to be furnished with something warm, but that he had no property, and could not pay for it. The gaoler then asked the deputy sheriff who served the execution, if he had any money to pay for the debtor’s board, or would be accountable for it. He replied, that he should not pay or become accountable for *t, as he had not been requested to do so by the creditor. No notice of the commitment was given to the creditor or his attorney.</p> <p>The plaintiff’s counsel contended that the defence was not supported, because it did not appear that the debtor claimed relief as a pauper, and because it was the official duty of the deputy sheriff to give notice of the commitment to the creditor or his attorney. A nonsuit was entered by consent, these questions being reserved for the decision of the whole Court.</p> <p>The defence was founded upon the provision of St. 1821, c. 22, § 2, “ that when the keeper of the prison, at the time of the commitment of any person upon mesne process or execution, shall require of the creditor, &c. or the officer committing, security for the expense of supporting such debtor, in case he shall claim relief as a pauper, unless satisfactory security is given, &c. he may, after twenty-four hours from the time said poor' debtor shall claim relief as a pauper, discharge said debtor from imprisonment.”</p>

This was an action of debt upon a judgment of the Common Pleas rendered in 1810, upon a complaint of the plaintiff, for flowage by the defendant’s mill-dam, of thirty acres of land of which the plaintiff alleges that he then was- and ever since has continued to be seised in fee. The yearly damage, as found by the sheriff’s jury, was seven dollars and fifty cents.

Assumpsit. The action was entered in the Common Pleas at September term 1827. The declaration then contained three counts. The first alleged that the defendants were indebted to the plaintiffs, on the balance of accounts, in the sum of 568 dollars 79 cents, and that in consideration thereof they promised to pay that sum on demand, with interest, and damages for the non-acceptance of the plaintiff’s draft.

This was an action on the case to recover of the defendant a penalty for forcibly passing the turnpike gate on the Wrentham and Walpole turnpike road, without paying toll. The defendant pleaded the general issue.

Debt upon a recognizance. In the first count it is alleged, “ that the defendants, at Dedham, on the 19th of September, 1826, by their recognizance, acknowledged themselves to be indebted to the plaintiff in the sum of 110 dollars, as by the record remaining in the Supreme Judicial Court for the county ' of Norfolk will fully appear, which is in full force, whereby an action hath accrued,” &c. In the second count it is alleged, that the defendants, at the Court of Common…

This was a bill in equity to compel the respondents, associates in an unincorporated company, to account with the plaintiff, the bill alleging that the plaintiff was a partner, that the respondents had the management and control of all the joint stock and property, consisting of horses, stagecoaches, Saz. The respondents pleaded that the plaintiff had no interest in the company, and that he was not a partner or associate. Issue was taken upon the plea.

<p>Assumpsit on a promissory note made by William Peirce, the defendant’s intestate. The action was commenced in November, 1826.</p> <p>In September, 1828, the defendant filed his plea ; in which he admits the note to be due, but says that the estate of the intestate being insufficient to pay his debts, he, the administrator, on the 28th of April, 1828, at a Court of Probate, represented the same to he insolvent, and that commissioners were appointed to examine the claims of creditors, for which purpose six months were allowed, which have not expired , and he prays that no execution may issue against the estate of the intestate in the hands of the administrator, but that judgment, if any should be rendered, may be rendered as against an insolvent estate.</p> <p>The plaintiff replies, that he ought not to be precluded from having execution on the judgment to be rendered against the estate of Peirce, in the hands of the administrator, because, on the 17th of November, 1826, while Peirce was alive, the plaintiff attached on the original writ in this suit, certain real estate of which Peirce was then seised, to respond the judgment, and on the 22d of the same November, Peirce for a valuable consideration conveyed the same real estate to one Todd, and on the 25th of December then next, Peirce died ; and the plaintiff waives all claim against any other property of Peirce except this real estate.</p> <p>T o this replication there was a general demurrer.</p> <p>The St. 1784, c. 2, provides, that no action brought against any administrator shall be sustained, after the estate shall be represented and found insolvent, unless the administrator, having objection to the claim, shall consent to have it settled by course of law ; in which case the judgment of the court shall determine the claim and be reported by the commissioners as such. In St. 1783, c. 59, it is provided, that when any land is attached upon any writ, and the defendant shall die before final judgment, and his estate shall be represented insolvent, and a commission of insolvency shall thereupon issue, such attacnment shall have no force after the death of the defendant.</p>

<p>Where a factor, having sold goods of his principal, took a negotiable note in his own name for the price, and before the same became due, the purchaser failed and assigned his property by an indenture, which contained a release of all debts due to the creditors who executed the same, among whom was the factor, who had several demands of his own against the purchaser, it was held, in an action by the factor to recover back money advanced to the principal, that parol evidence was not admissible to show that the factor intended to release only the debts due to himself; and that as the purchaser was discharged from the note in question, the principal might avail himself of that fact in defence to the action.</p>

Scire facias. From the answers of Peele it appeared, that on August 14, 1826, James Silver was in failing eircuinstances by reason of the failure of Richard Wheatland, for whom he was liable as indorser, and that he was desirous of securing Peele against loss from his liabilities on account of Silver, and also of securing to J. Hodges, E. Appleton, J. Day and M. Day the payment of certain debts contracted by Silver on his own account and then unpaid, in preference to the…

<p>This was an appeal from a decree of the judge of probate removing the appellant from the office of administratrix of the estate of her husband, Joseph Andrews, deceased, intestate. The estate had been represented insolvent. The decree was passed upon the petition of creditors of the intestate, praying for the removal of the administratrix on account of her refusing to inventory certain parcels oi real estate, to the end that the same might be sold for the payment of debts. The creditors represented that this real estate had been fraudulently conveyed by the intestate for the purpose of defrauding his creditors, and that they had given notice thereof to the administratrix and had requested her to cause the same to be inventoried as the real estate of the intestate; and they offered, in their petition, to indemnify her for so doing.</p> <p>The administratrix appealed from the decree, “ because the real estate was conveyed by said Joseph Andrews in his lifetime to John H. Andrews bond fide and for a valuable consideration, and not for the purpose of delaying and defrauding the creditors of said Joseph.”</p>

<p>Johnson prayed for a writ of certiorari (which was grant ed) to a justice of the peace, by whom he had been fined for neglecting to meet with a militia company at a company training on September 30, 1826.</p> <p>At the trial before the justice, the clerk of the company produced a list or roll by which he called the names of the company, and on which Johnson’s name was entered. Johnson objected to this evidence of his enrolment, and called for the book of enrolment belonging to the company; which being produced, it was proved that his name had not been entered in the roll of this book for the year 1826, until the day of the trial, but that it had been entered on the rolls of preceding years.</p> <p>Johnson, to excuse his neglect, offered in evidence a certificate of the surgeon of the regiment, which was as follows :—“ This certifies that Alfred Johnson complains of pain and weakness in his breast occasioned by a severe strain, which he says renders him unfit for his usual business and unable to perform hard labor ; this being the case, he ought, in my opinion, to be excused from militia duty this season. Oct. 1826.” He proved that he showed this certificate to the captain of the company, within twenty days after the training. He also called witnesses to show his inability to perform military duty.</p>

<p>This was an action for a total loss, upon a policy of insurance, dated December 6, 1820, upon the ship Argonaut, at and from Leghorn to her port of discharge in the United States. The ship was valued in the policy at 12,000 dollars. The cause was tried before Putnam J., upon the general issue.</p> <p>It appeared, that in the prosecution of her voyage, the ship was driven upon the rocks at Gerrish’s Island, near Portsmouth, on the 24th of March, 1821, and received great damage. While she lay there an offer to abandon was seasonably made on the 26th of March. The defendants caused the vessel to be taken from the rocks, and having made certain repairs upon her, offered to restore her to the plaintiffs.</p> <p>The plaintiffs contended, that the vessel had not been sufficiently repaired, nor within a reasonable time, and that the expense of the repairs made, and of those still necessary, would exceed fifty per cent of her value. All this was controverted by the defendants, and they contended that if there had been some unnecessary delay, it could not change a partial into a total loss.</p> <p>The jury were instructed, among other things, that if there had been an unnecessary delay in making the repairs, they must find for the plaintiffs as for a total loss.</p> <p>The jury agreed that the abandonment was justifiable and duly made ; that the repairs were insufficient; that the expense and damage exceeded fifty per cent of the sum named in the policy, and that there had been an unnecessary delay in repairing the ship ; they therefore found a verdict for the plaintiffs.</p> <p>In an estimate returned by the jury, of the expenses and damage, amounting to 6191 dollars, was one item of 1500 dollars, for “ damage of leak and straining of vessel not otherwise provided for.”</p> <p>Several other points not necessary to be stated, were made at the trial, and argued before the whole Court. The defendants moved for a new trial on account of the directions which were given to the jury.</p>

<p>In the case of a valued policy upon a ship, by which the underwriter is not to be Iia ble for a particular average unless it shall amount to five per cent, the percentage is to be reckoned upon the valuation after deducting the premium.</p> <p>Where the vessel sustained a damage in a gale, and several months afterward another damage by running foul of another vessel, it was held that these two distinct losses could not be joined together to make up the five per cent.</p> <p>Where a vessel insured, having lost her boat and camboose and had her mainsail damaged in a gale, repaired the sail at sea with duck taken from the cargo, and purchased an old boat and camboose at a port of necessity, and, upon her arrival at home, sold the sail, boat and camboose, and procured new ones, it was held, that the loss was particular average ; but other repairs made abroad from strict necessity to enable the vessel to return, and which were of no value after her return were held to come under geneial average.</p> <p>Where the master, in the exercise of his discretion and acting in good faith, makes in a foreign port only temporary repairs of an injury covered by the policy, and permanent repairs are made at home at the end of the voyage, the underwriter is liable for both repairs.</p> <p>In the case of a partial loss on a ship, in making the deduction of one third new for old from the expenses of repairs, the value of the old materials is to be first deducted from the gross expenses, and then one third is to be deducted from the balance.</p> <p>The deduction of one third new for old is to be made in the case of a new iron strap for a dead-eye.</p> <p>The underwriter was held not to be liable for a hawser lost overboard, which was stowed in the boat on deck.</p> <p>The assured is not entitled to charge a commission on the repairs made at home : nor for the expense of a survey made at home.</p>

<p>A cargo consisting of lumber and other articles, was shipped by a merchant on board the plaintiff’s vessel, and consigned to the master, he paying freight, viz. three fifths of the lumber and for the other articles a sum of money. The ship and cargo were totally lost on the voyage. It was held, that a policy effected by the owner of the vessel on property on board, covered the three fifths of the lumber, but not the freight of the other articles.</p>

<p>This was an action of trespass quare clausum fregit, which was tried before Putnam J. The plea was, that the defendant had a right of way through the cellar of the plaintiff’s house. New assignment, that the defendant passed from the cellar to the rooms above [which belonged to the defendant] without having any occasion to go into the cellar to do any particular business therein.</p> <p>The defendant relied upon a reservation in a deed which he made to the plaintiff on November 25, 1818, by which he conveyed to the plaintiff, the eastern half of the defendant’s “ dwellinghouse with the land under the same and cellar.” The deed also conveyed to the plaintiff a lot of land on the eastern side of the house, and “ also the privilege of passing and repassing up and down the cellar stairs the inside of said house, reserving however a privilege to pass and repass through said lot of land to the outer cellar-way, and through said way and cellar, where it may do the least damage : Also one half of the land in front of said house and at the western end and backside in common and undivided,” “reserving the western half of said house as stipulated above and cellar.”</p> <p>The defendant was permitted to give parol evidence of such a use as he now claims, to pass &c., immediately after the deed, and continued from that time with the plaintiff’s knowledge, and without any objection until the time of the alleged trespass.</p> <p>The plaintiff’s counsel objected to the admission of this evidence ; and also requested the judge to instruct the jury, that the reservation under which the defendant justified, gave him the privilege of passing over the plaintiff’s land, and through the plaintiff’s cellar to the defendant’s cellar and back again, for the purpose of carrying any thing into the cellar, or taking any tiling out, or doing any thing therein, but not the privilege of so passing to and from the upper apartments of the defendant’s house directly, where the object is merely to go into or come out of the house, and that the evidence offered by the defendant, of the manner in which he had used the privilege, was not sufficient to control this construction of the deed. This construction was adopted by the judge for the purposes of the trial, unless the jury should be of opinion, from the evidence in the case, that the parties intended by the reservation of the way through the cellar, that the defendant and his assigns, owners and occupiers of the western part of the house, should pass to the apartments above the -cellar, and repass therefrom through the cellar, as the defendant claims, when they have nothing to do in the cellar. And the jury were instructed, that such intent and meaning of the parties to the deed might be inferred from the contemporaneous and subsequent usage, without any objection on the part of the plaintiff, he knowing such usage ; but that the burden of proof was on the defendant. The jury found a verdict for the defendant upon that ground.</p> <p>If the whole Court should be of opinion that the parol evidence should have been excluded, and that the construction of the deed for which the counsel for the plaintiff contended was right, then the verdict was to be set aside. But if the defendant’s construction of the deed was right, or if the parol evidence was rightly admitted, judgment was to be rendered on the verdict for the defendant.</p>

<p>If an officer exacts the payment of a tee before it is due, it is extortion at common law.</p> <p>The statute of 1795, c. 41, [See Revised Stat. c. 122, § 19,] regulating fees, and imposing a penalty for taking excessive fees, does not repeal the common law in this respect.</p> <p>Where the keeper of a gaol, when a prisoner was committed on execution, demanded and received of the officer who committed him, and who paid the money on account and by direction of the judgment creditor, forty cents, being twenty cents for turning the key on the committal, and twenty cents for turning the key on the discharge of the prisoner, it was held, that taking at that time the fee payable on the discharge, was extortion at common law.</p> <p>The indictment, which stated the money to be paid by the judgment creditor, was held to be right, the officer having paid it merely as the agent of the creditor.</p>

<p>This was an action foi money had and received, which was submitted to the Court on the following statement of facts.</p> <p>In March, 1826, Nathaniel Safford and Josiah Gould were the owners of the brig Monroe of Beverly, then bound on a voyage to Africa. The plaintiff, wishing to be interested in the voyage, advanced 600 dollars to Safford and Gould, receiving from them the following receipt and promise under their signatures. “ Beverly, March 4, 1826. We, the owners of brig Monroe, Capt. James Vent, hereby acknowledge to have received of Mr. Kimball Gallop 600 dollars in cash, being the amount of his adventure on board said brig, to be received from the proceeds of said brig’s cargo whenever her voyage may end, either upon the coast of Africa, America, or elsewhere. We, the subscribers, promise to pay said Kimball Gallop, or his order, his proportion of the proceeds of said cargo according to the aforesaid investment of 600 dollars, reckoning the cargo at its fair cash price and necessary charges, including duties and insurance, and in case of loss, the above amount to draw a proportion of insurance recovered.” Insurance was effected by Gould for whom it might concern, the loss payable to his order. The invoices and bills of lading of the cargo, both outward and homeward, were in the names of Gould and SafFord. The brig sailed on her voyage. During her absence Gould and SaiFord, by deed dated April 8, 1826, conveyed the brig Monroe’s cargo, with other property, to the defendants Newman and Payne, to indemnify them for certain promissory notes signed by them, and delivered to Gould and SafFord for their accommodation, and to enable them to raise money on the notes. The assignment conveyed all the cargo of the Monroe shipped by Gould and SafFord, “ particularly described in the invoice and bills of lading heretofore by them indorsed and delivered over to the said Newman and Payne, and all and singular any sums of money or credits, being the proceeds of said goods, wares, and merchandise, for which the same shall be bartered or exchanged, or in which the proceeds thereof are or shall be invested.” And the assignment authorized Newman and Payne to sell the goods and appropriate the proceeds thereof to the payment of the notes, and to indemnify themselves for any loss or damage which they might sustain by reason of their having signed them. And Newman and Payne undertook to pay over the surplus, if any, to Gould and SafFord’s order. On April 7, 1826, Newman and Payne accepted an order drawn on them by Gould and SafFord in favor of Mrs. Abigail Gould for 20,000 dollars, provided such a balance should remain in their hands after the objects of the assignment were satisfied.</p> <p>Gould and SaiFord failed soon after making the assignment; and Newman and Payne have not received sufficient property under it to indemnify themselves and pay the order in favor of Mrs. Gould.</p> <p>The brig Monroe arrived at Beverly from her voyage, in December, 1827. The plaintiff was the first mate of the brig. Soon after her arrival he notified Newman and Payne of his agreement with Gould and SafFord, and of his claim on them (Newman and Payne) on account of the same.</p> <p>Judgment was to be given for either party according to the opinion of the Court.</p>

<p>The St. 1822, c. 104-, [Revised Stat. c. 3, § 3,] requiring a collector of taxes to return to the selectmen, fifteen days before the first Monday in March, a list of persons from whom he shall have received payment of a State or county tax, intends that the list shall remain with the selectmen for their use, and not be taken away again by the collector.</p> <p>It is not necessary that such list should be delivered to the selectmen at a meeting of the board ; a delivery to one of them is sufficient.</p>

<p>A, a deputy sheriff, attached certain goods as the property of B; C, a coroner, afterward attached and took possession of the same goods in another suit against B, on the ground that A had abandoned his attachment. A then brought trover against C for the goods. While this action was pending, the creditors in the suits in which A had made his attachment, recovered judgments against B, and put their executions into A’s hands, threatening to sue him unless he satisfied them, C then, at the request of A, and with the consent of the parties for whom C had attached, delivered the goods to A, A giving C a written agreement that he would pay to Cthe proceeds of the goods in case A should fail in his suit of trover. A .sold the goods by auction. Afterward C recovered judgment for costs against A in the action of trover, and immediately made a demand on A for the amount of the proceeds of the goods ; which A refused to pay. The creditors for whom C had attached afterward recovered judgment against B, and, within thirty days after, A was notified of it, and again requested to pay over the proceeds ; but the creditors did not take out execution within the thirty days. It was held, that A was liable to C on the agreement for the proceeds of the goods.</p>

This was an action against Smith as the indorser of four promissory notes. The case was submitted to the Court on the following facts agreed by the parties.

<p>A testator devised lands to each of his five children, and also bequeathed an an. nuity to his wife for her life in lieu of dower, charging the estatus of each of hh children with the payment of one fifth part of the annuity. After his death the widow accepted the annuity, which was paid to her for some years, and then discontinued until her death. Parcels of the land devised to one of the sons were taken during the widow’s life and sold by order of court to pay the debts of the testator. They were sold subject to the annuity, and the deeds to the purchasers also stated that the lands were “ subject to certain incumbrances charged in the will ” oí the testator. During the widow’s life, several creditors of the same son severally levied executions which they had obtained against him, on the remainder of the lands devised to him ; the appraisers, in estimating their value, taking into consideration the annuity and the amount in arrear. The administrator of the widow brought assumpsit for one fifth of the arrear of the annuity against all the purchasers of the devised land and all the creditors to whom land was set off as above mentioned, having previously made a demand on them while they were tenants of the land. Held, that the action for the annuity might be maintained, and that all the defendants were properly joined.</p>

<p>\ person occupying land under a contract for the purchase ot it, is not liable to pay rent on an implied contract for the use and occupation, if the owner of the land fails to execute a conveyance of it to him.</p> <p>V paid L 100 dollars as the price of a piece of land, and L gave P a promissory note for the money payable to P or order, under which the following memorandum signed by L was written. “ N. B. This note is to be given up when I give him a deed of the land, which I have engaged to give him,” See. P occupied the land nine years till the time of L’s death, but L made no conveyance of the land, and P retained the note. L died insolvent, and his administrators brought assumpsit against P for the use and occupation of the land during the nine years. Held, that the action would not lie.</p> <p>It seemst that the note with the memorandum is a sufficient agreement in writing for a court of equity to compel a conveyance of the land.</p>

<p>This was an appeal from a decree of the visitors of the Theological Institution in Phillips Academy in Andover, removing the appellant from the office of Brown professor of ecclesiastical history in that institution.* The appellant was a professor on the Associate Foundation.</p> <p>At the annual meeting of the Trustees of Phillips Academy on the 21st of August, 1827, a committee was appointed to ascertain, among other things, whether any violations of the laws of the Theological Seminary had taken place, and to inquire into the measures and conduct of the students and of the faculty, so as to present a full view of the internal state of the Theological Seminary in all essential particulars, suggesting such remedies for any evils which might be found to exist, as to them might seem expedient.</p> <p>At a meeting in September, 1827, the committee made a report, and the trustees voted, that in view of the report and accompanying documents, it was the opinion of the board, that the interests of the seminary required that the connexion of Dr. Murdock therewith should be dissolved; and it was therefore voted that he should be requested to resign his office. Unsuccessful negotiations were afterward carried on between Dr. Murdock and committees of the trustees, in regard to the terms upon which he would be willing to resign.</p> <p>At a meeting on the 1st of November, 1827, a committee was appointed to consider what further measures the trustees should take in relation to Dr. Murdock, and the committee made a report, recommending the removal of Dr. Murdock for the following reasons : -—</p> <p>1. There are in Dr. Murdock’s mind jealousies of the other members of the faculty and of the trustees, and a want of confidence in his colleagues and in the trustees ; out of which evils necessarily grow, tending to the material injury, if not the prostration, of the government of the institution.</p> <p>The report then specifies the jealousies alluded to, and for proof of their existence refers to Dr. Murdock’s own statements before the committee of inquiry first mentioned, and it alleges that there is no reasonable prospect that these jealousies could be removed.</p> <p>2. There is a wide and settled difference of views between Dr. Murdock and the trustees in regard to the arrangement in relation to his department.</p> <p>The report proceeds to state in what this difference consists, and Dr. Murdock is quoted as saying‘that a change in the arrangement is essential to his respectability and usefulness as a professor in the institution. 3. “ Dr. Murdock entertains views respecting the course 0f con3uct proper for an officer in the institution, and has in of these views pursued a course of conduct, in several particulars, wholly inconsistent with the real interests of the seminary. He stated to the committee of inquiry, that in a certain instance he had made representations to one of his colleagues, respecting another, of an unfavorable character, with the design of prejudicing that one against the other, that the former might unite with him in opposition to the other. He has stated that he thinks it proper to discuss with the students subjects belonging to the departments of his colleagues, and in such discussions ■ to impugn the arguments which his colleagues have advanced, and that he has done this. He also stated that he thinks it proper for a professor to converse often and freely with the resident licentiates (who have constant intercourse with the students) and occasionally with the students, respecting the character and conduct of his colleagues, and he has done this. He has expressed to resident licentiates and to students the opinion, that certain laws of the Institution were unreasonable and unjust in their influence. He has disclosed the proceedings and differences of the faculty in their official meetings, in such communications impugning the opinions and acts of his colleagues.”</p> <p>4. “ There has been gross neglect of duty in Dr. Murdock, especially during the past year. By the regulations of the trustees adopted in September, 1826, he was required to deliver a public lecture at least every third Wednesday afternoon in the winter term, or nine lectures in as many succes sive weeks ; to deliver private lectures, two in each day, to the senior class, commencing with the summer term, and continuing till a regular and competent course be completed ; and to privately criticize compositions of the junior students, one in each day, during the winter term, and examine and criticize one half of the sermons and skeletons of sermons of the middle and senior classes ; but according to his statement to the committee of inquiry, he did not, during the whole year, criticize any compositions of the junior students, and he examined fewer sermons than were required. He wrote no lectures in ecclesiastical history during the year. He delivered no public lectures during the winter term, and did not commence delivering private lectures in the summer term, till five or six weeks after the beginning of the term, and then but two Iectures in a week, except in one instance, when there were three.’</p> <p>The report states, that “the preceding just and sufficient grounds for the removal of Dr. Murdock are furnished by Dr. Murdock’s own statements to the committee of inquiry.” It then sets forth additional charges, which it is unnecessary to state.</p> <p>An attested copy of the foregoing report having been trans mitted to Dr. Murdock, that he might have opportunity to make any communications in regard to it, he requested and demanded ; — 1. To be represented and fully heard by his counsel, on his trial before the board of trustees:—2. To have definite, plain and distinct specifications of charges de livered to him : — 3. To have access to the documents, records and other papers of the board and of their commit tees : — 4. To have none but fair and legal evidence received in proof of any of the charges to be brought against him, and that he might not be betrayed or compelled to furnish evidence against himself.</p> <p>The trustees voted, that it was inexpedient to permit coun sel to appear personally before them, but that they were not unwilling that Dr. Murdock should have the aid of counsel in preparing any argument or testimony which he might choose himself to present to the board : — That it would not be expedient to disclose to him any documents laid before any committee of the board of trustees, the grounds having already been stated to him on which the board would proceed, when they should act upon the report recommending his removal ; and that they did not intend to resolve themselves into a court, nor to adopt any technical rules or forms.</p> <p>Dr. Murdock, in consequence of these proceedings, declined appearing before the trustees to make his defence ; and at a meeting on the 18th of December, 1827, the trustees accepted the report of the committee recommending that Dr. Murdock should be removed from office, and in pursuance thereo passed a vote of removal. From this determination Dr Murdock appealed to the board of visitors.</p> <p>A meeting of the visitors, viz. William Bartlett esquire, Rev. Calvin Chapin, D. D. and Hon. William Reed (the Rev. Jeremiah Day, D. D LL. D. being absent), was held at Andover on the 5th of August, 1828. Dr. Murdock appeared, and on his motion Levcrett Saltonstall and John G. King were admitted as his counsel. Samuel Hubbard esquire, Rev. Benjamin B. Wisner, and Samuel Farrar esquire, a committee of the trustees, appeared on their behalf.</p> <p>The board having voted, that when they should adjourn, they would adjourn to the 25th of September, Saltonstall moved that in the interim certain minutes and-documents of a committee of inquiry appointed by the trustees, should be submitted to the inspection of Dr. Murdock and of his counsel, and be delivered to them. This being objected to, it was voted, as the opinion of the board, that their authority did not extend to the case contemplated, and that if they had the power supposed by the motion, the exercise of it would not be essential to a just and thorough investigation of the cause before them.</p> <p>At the meeting in September all the visitors were present, but Mr. Bartlett was excused from sitting in the case.</p> <p>Samuel D. Parker was admitted as counsel in behalf of the trustees.</p> <p>Dr. Murdock’s counsel moved that the trial should be open to the public. Whereupon it was resolved, “ that the adoption of said motion cannot, in the view of the visitors, contribute to the discovery of truth, and that therefore it is not adopted, — there being no conveniences nor reasons for a public hearing.”</p> <p>The counsel of Dr. Murdock produced a certified copy ol the report above recited of a committee of the trustees, and of the votes and decision thereon from which he had appealed ; and they put in an answer of Dr. Murdock, in which he pleads that he is not guilty of the matters charged in the report, and answers specially the several charges and specifications against him</p> <p>The trustees put in a replication, in which they allege that Dr. Murdock is guilty of the several charges and specifications, and pray that their decision may be affirmed ; and they annex a transcript of the records of their proceedings relating to their decision.</p> <p>The trial then proceeded, and evidence was produced on both sides.</p> <p>A motion was made on the part of Dr. Murdock, that all the charges and specifications founded on his own statements before the committee of inquiry, should be dismissed ; for that it was his duty fully, freely and confidentially to disclose to that committee such facts and opinions as he believed the interest of the seminary required, and it was unjust and illegal to make his communications and statements to the committee the ground of charges against him. This motion was overruled.</p> <p>A motion was then made on the part of Dr. Murdock, that the four first charges, and the specifications under them, should be dismissed, because the evidence produced by the trustees had no tendency to prove them. This motion was overruled.</p> <p>The counsel of Dr. Murdock moved for an adjournment for several weeks, alleging that they were surprised by the evidence and the course of proceeding before the visitors. This motion was overruled, as being very inconvenient and unjustifiable.</p> <p>Another motion was made on the part of Dr. Murdock, m which, after reciting that the four first charges and specifications purport to be founded on his own statements, he alleges that the trustees have not offered evidence of those statements, but have given evidence relating to his conduct and conversations during the last nine years ; that this course is a surprise on him; and that evidence has been given of many transactions which can be explained only by himself; and he moves that he may be permitted to make his own statement under oath, and to answer interrogatories. This was objected to by the trustees, on the ground that Dr. Murdock had a direct pecuniary interest in the event of the cause, but they were willing that his own voluntary statement before the committee of inquiry, as well as the whole examination before that comnittee, should be made part of the evidence in the case. This proposition was not agreed to hy Dr. Murdock’s counsel The visitors were of opinion that Dr. Murdock had no right himself to give evidence under oath, and the motion was overruled.</p> <p>On the 14th of October, the visitors determined that the facts set forth in the charges and specifications were proved, except the following :—1. That Dr. Murdock “ has stated that he thinks it proper to discuss with the students, subjects belonging to the departments of his colleagues, and in such discussions to impugn the arguments which his colleagues have advanced, and that he has done this : ” — 2. That he “ has made to resident licentiates and students representations respecting one of his colleagues having intrigued with the students in 1820, to produce among them dissatisfaction with Dr. Murdock : ” — And they affirmed the decision of the trustees removing him from office.</p> <p>From this decree Dr. Murdock appealed to this Court, by virtue of St. 1823, c. 50, § 3.</p> <p>This statute enacts, that if the visitors of the. Theological Institution “ shall at any time act contrary to the statutes of the founders of said institution, or exceed the limits of their jurisdiction, the party aggrieved may appeal to the Supreme Judicial Court, to be holden within and for the county of Essex, and the said Supreme Judicial Court, which may be authorized to decide questions of law in civil actions, is hereby authorized to declare null and void any decree or sentence of the visitors, which they may consider contrary to the statutes of the founders, and beyond the just limits of the power prescribed to them thereby : provided, however, that nothing herein contained shall be construed to limit or restrain the Supreme Judicial Court from exercising all such jurisdiction in '■elation to said corporation, as by law they might exercise, had not this special provision been made.”</p>

This action was brought to recover the expense of keeping, supporting and employing several paupers, inhabitants of Salem, in the house of correction at Ipswich, by the plaintiff’s intestate. The case was submitted to the Court on the following statement of facts agreed by the parties. The plaintiff’s intestate was master of the house of correction at Ipswich.

The petitioners represented that the Court of Sessions, at April term 1825, adjudged that the road leading from the west meetinghouse in Bradford to the west meetinghouse in Boxford should be widened and straightened, and that two pieces of new road should be laid out, one in Bradford and Boxford, the other over B. Tyler’s lands ; that a committee appointed for those purposes, having executed their duties, made a report at July term 1825, which was accepted on the 12th of…

This was a complaint to the Court of Common Pleas, setting forth that the complainant is the owner of certain land in Newbury; that in 1812, the respondent built a mill-dam, whereby the land was flowed ; that upon a complaint to'the Common Pleas in 1814, by the same complainant against the same respondent, it was adjudged that the complainant should recover the sum of two dollars as the yearly damage done to the land by the flowing ; and that the yearly damage exceeds that…

<p>Filing and opening in the clerk’s office a deposition taken in a suit in chancery, is equivalent to a publication in the English practice.</p> <p>Notice that a suit in chancery is brought to an issue, being given by the plaintiff thirty days before the ensuing term, the case will stand for a hearing at such term in its order on the docket, like cases at law ; the English rules in chancery relative to setting down a case for hearing not having been adopted by this Court.</p> <p>Whether suits in chancery are embraced by the exception in the 15th article of the declaration of rights, which article provides, “ that in all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherwise used and practised, the parties have a right to a trial by jury,” qucere.</p> <p>But if a party to a suit in chancery has, by virtue of that article, a right to a trial by jury, it is only in regard to controverted facts deemed essential to the fair and full trial of the case ; and whether a fact proposed to be so tried is essential or not, is to be determined by the Court.</p> <p>If, upon inspecting the pleadings, it appears that important facts are asserted anu denied, the Court, in its discretion, may direct issues before a hearing.</p> <p>Where the legislature passed an act granting additional privileges to a bridge corporation, and providing, ” that in consideration of the privileges so granted the corporation shall relinquish the additional toll on the Lord’s day, from and after the passing of this act, ” it was held, that this relinquishment was a condition subsequent, the non-performance of which was a matter between the government and the corporation only, and could not be taken advantage of by a stranger to invalidate the grant.</p> <p>If a corporation obtain an extension of their charter by false and colorable representations to the legislature, it may be made the ground of a quo warranto, but a stranger cannot take advantage of the fraud to deny the validity of such extension.</p> <p>The government of the colony of Massachusetts having established a ferry between Boston and Charlestown, over Charles river, recite, in an ordinance to which are affixed the dates of 1636, 2640 and 1642, that they have given ec the revenue of the ferry ” to Harvard College. At a general court in 1640, “ the ferry between Boston and Charlestown is granted to the college.” The ferry was at that time under lease. In May, 1650, the college was incorporated. In October following, in answer to the petition of the president of the college in regard to 16 rectifying the ferry rent, which belongs to the college, it is ordered that it shall be in the liberty and power of the president, in behalf and for the behoof of the college, to dispose of the ferry by lease, or otherwise, making the best and most advantage thereof to his own content.” In .an order of 1654 it is said, 66 besides the profit of the ferry formerly granted to the college, which shall be continued, there shall be yearly levied by addition to the county rate, an hundred pounds, to be paid to the college treasurer, and this to continue during the pleasure of the country.” From 1639 to 1785 the college received the profits of the ferry ; which, during part of the time from 1650, was under their own management, and for the rest of the time since that year was leased by them to tenants. The rates of toll were fixed by the college, but the legislature passed acts from time to time for regulating the ferry, in some instances affecting the toll, sometimes consulting and sometimes without consulting the college. By St. 1784, c. 53, (passed March 9, 1785,) entitled, c< An act for incorporating certain persons for the purpose of building a bridge, over Charles river, between Boston and Charlestown,” the persons incorporated were authorized to erect the bridge <c in the place where the ferry between Boston and Charlestown is now kept,” and to receive toll for forty years from the day on which the bridge should be opened for passengers ; double toll to be paid on the Lord’s day. During that term the corporation were to pay the college an annuity of 2002., and at the end of the term the bridge was to “ revert to and be the property of the Commonwealth, saving to the college a reasonable and annual compensation for the annual income of the ferry, which they might have received, had not said bridge been erected.” The bridge was opened for passengers on June 17, 1786. The college made no conveyance of the ferry by deed to the bridge corporation, but the annuity was paid by that corporation and received by the college. In 1792, on an application for authority to build a bridge across the same river between Boston and Cambridge, a committee of the legislature reported, that the statute of 1784 was not<£ an exclusive grant of the right to build over the waters of that river ; ” which report was accepted, and certain individuáis were by Si. 1791, c. 62, (passed March 9, 1792,) incorporated for the purpose of building the West Boston bridge, between Boston and Cambridge, with authority to receive toll for forty years and with the obligation to pay an annuity to the college : and te whereas the erection of Charles River bridge was a work of hazard and public utility,” and the West Boston bridge might<f diminish the emoluments of Charles River bridge, therefore, for the encouragement of enterprise,” it was enacted that the privileges and duties of the proprietors of Charles River bridge should continue thirty years huger, and that in consideration of the privileges i* thw act granted, they should relinquish the additional toll on the Lord’s day, froir ana after the passing of this act. Soon afterward the proprietors of Charles Riv er bridge ceased to demand the additional toll, and it has not been exacted since, and in 1802 they ordered such parts of the statute of 1791 as concerned them, to be entered on their records ; but they did not pass any express vote to accept the act until February, 1826, a few months before the expiration of the term of their original charter. They have ever since continued to comply with the provisions of the ttvo statutes. In 1828 (by Si. 1827, c. 127,) the legislature incorporated certain persons for the purpose of building the Warren bridge across the same river, between Boston and Charlestown. This bridge was built in pursuance of the act. near to Charles River bridge, the distance between them on the Charlestown shore being 260 feet and on the Boston shore 915 feet, and in consequence near.y twc thirds of the toll were diverted from Charles River bridge. The act of 1827 provided that the Warren bridge corporation should make compensation to any person or corporation whose real estate should be taken for the use of the bridge, but was silent, in regard to damage of any other kind. It was held : —</p> <p>By Morton J., that by virtue of the grants relating to the ferry and the practical construction of them, the college had a permanent indefeasible interest in the ferry, subject to the iegulation of the government; —by Putnam J., that the college were seised in fee of the franchise ; and by Parker C. J., that the grants before 1650 did not vest in the college the absolute property in the ferry itself, but only a permanent right to the profits, the government being at first trustees of the ferry for the benefit of the college ; and the trust being afterwards relinquished, the college thus became the owners of the ferry, subject to the regulation of the government : —</p> <p>By Parker C. J., Wilde J. and Morton J., that the right of the college was not transferred to the proprietors of Charles River bridge : — but by Wilde J., that by the statute of 1784 and the acquiescence of the college, the ferry was extinguished :— and by Morton J., that the public exigences requiring it, the government seized the college right, (after providing a suitable indemnity,) to enable them to make a compact by which the public wants might be satisfied; — but by Putnam J., that the college, for a valuable consideration paid by the proprietors of the bridge, consented that they should have the ferry during the continuance of their charter : —</p> <p>By Putnam J., that no other ferry could be lawfully erected by the government, or by an individual, so near to the old ferry as to draw away its custom, and that a feiry set up at the place where Warren bridge is built, would have been so near as to be a nuisance to the old ferry ; —by Parker C. J., that the grant was not of an exclusive right along the whole opposite shores of Boston and Charlestown, neither was it limited to the ferry-ways, but it gave a right to receive toll from all persons, who, having occasion to pass between Boston and Charlestown over the river, would in the usual course of travel cross at this ferry ; but that the government had a right, whenever the increase of population should require it, to establish another ferry between the two towns, only providing for a just compensation to the proprietors of the old ferry according to the value of the property at the time : in order however to give the owner of an old ferry a claim to compensation, the new one must not merely be so near as to take away some of the ñustora ; it must be near in a positive sense ; it must be within the range of the exclusive right of the old one ; which is to be settled, in the case of a prescriptive ferry, by proof of use, and where a grant exists, by the terms of the grant: —</p> <p>By Parker C. J. and Wilde J., that when the legislature authorize the establishment of a bridge or ferry near an old one, this is not a taking of private property for public uses, within the meaning of the 10th article of the declaration o' rights or the fifth amendment to the constitution of the United States, (which provide respectively that private property shall not ^e “ appropriated 53 or t( taken 33 for public use, without compensation,) as the da iages are only consequential ; but by Parker C. J., by the principles of our const! tion and the nature of our government, the legislature are prohibited from maki g a grant to the necessary and essential injury of a pre-existing grant, witho. providing for a just compensation : —</p> <p>By Parker C. J., and Wilde J., that the express acceptance by the proprietors of Charles River bridge, of the statute of 1791, was in due season, it being before the expiration of their original charter and before the grant to the proprietors of the Warren bridge ; and further, that their acceptance might be presumed from their previous proceedings and from the statute’s being to their benefit: —</p> <p>By Parker C. J., that the ceasing, soon after the enactment of the statute of 1791, to take the additional toll and never exacting it since, was a sufficient relinquishment of it, without any express vote : —</p> <p>By Morton J., that the contract between the legislature and the proprietors of Charles River bridge contains no grant, express or implied, of an exclusive right beyond the limits of the bridge itself, but their right extends only to taking toll of such persons as may choose to pass the bridge ; so that the statute of 1827 is not contrary, either to the constitution of this Commonwealth, as taking private property for public use without compensation, or to that of the United States, as im- , pairing the obligation of a contract: —</p> <p>3y Wilde J., that the proprietors of Charles River bridge did not derive, expressly or oy implication, from the statutes of 1784 and 1791, especially the latter, an exclusive right of transportation over the river between Boston and Charlestown ; and that the statute of 1827 was not repugnant to the declaration of rights, for no property of those proprietors was taken, the damages sustained by them being only consequential, and was not inconsistent with their rights under the statutes of 1784 and 1791, and so was not contrary to the constitution of the United States By Putnam J., that the proprietors of Charles River bridge having acquired the right of the college to the ferry, did, by virtue of the acts of 1784 and 1791, become seised of an exclusive franchise for transportation over Charles river between Boston and Charlestown over their bridge, as extensive as the owners of the ferry had enjoyed for transportation in boats, so that a new ferry or bridge which would have been a nuisance to the old ferry, would be a nuisance to the old bridge ; that independent of the ferry, the statutes authorizing the proprietors of Charles River bridge to erect a toll-bridge, contains an implied engagement on the part of the legislature, not to grant another bridge so near as to draw away the toll from the old one ; and that the statute of 1827 is contrary to the constitution of the United States, inasmuch as it impairs the obligation of the grant previously made to the proprietors of Charles River bridge, and contrary to the constitution of this Commonwealth, inasmuch as it takes away their property for public uses, against their consent, without compensation, and without provision for a trial by a jury : —</p> <p>By Parker C. J., that the contract of the government with the proprietors of Charles River bridge was, that the grantees should have a right as extensive as the owners of the ferry had, to take toll from persons having occasion to pass between Boston and Charlestown, and that this right should not be disturbed or impaired, unless public necessity should demand it, and in such case the grantee should be indemnified ; and that the statute of 1827, in so far as it authorizes, and by its necessary operation occasions, a diversion of travel and toll from Charles River bridge, with out providing for an indemnity, impairs the obligation of the contract with the proprietors, and is contrary to the constitution of the United States and to the principles of the constitution of this Commonwealth.</p>

This was a writ of entry to recover an undivided moiety of a certain messuage. The demandant alleged a seisin in himself and a disseisin by the tenant. Issue was joined on the plea of non disseisivit.

This was an action on the case for a conspiracy to defeat the plaintiffs of obtaining a debt due to them from the firm of Carr & Grant. On the trial, before Parker C. J., the following facts appeared in evidence. Joseph S. Carr and the defendant Grant, were partners in business in Boston, and indebted to the plaintiffs in the sum of 425 dollars 56 cents.

<p>•A attached an equity of redemption of land of B, and C subsequently attached the same equity. The equity was taken on an execution in A’s favor, and adver tised for sale, but the advertisement published in the newspaper did not specify any place of sale. The sale was made on the laud, C acting as auctioneer. At the sale C set up the estate as subject to no incumbrance but the mortgage ; and nothing was said of his having a subsequent attachment. The equity brought a fair price. The officer’s return stated, that he had advertised the place of sale in the newspaper. C, having afterward obtained judgment and execution in his suit against B, brought an action against the sheriff for the false return of his deputy, jHeld j —</p> <p>That the return was false: —</p> <p>That the action was maintainable t —</p> <p>That the damages recoverable were, the amount of C’s judgment against B, with interest from the service of the writ, the amount for which the equity was sold being more than sufficient to have satisfied C’s judgment: —-</p> <p>That C, as he was acting as auctioneer, was not bound to disclose his attachment at the sale ; and was not estopped by his representation then made from maintaining this action : —</p> <p>That the return of the officer was so far conclusive, as that the equity of redemption passed by the sale, and could not therefore have been taken again on the plaintiff’s execution.</p>