Volume 25 — Massachusetts Reports

<p>Where I, an indorser of a protested bill, after having had sufficient opportunity to ascertain the circumstances of the presentment, protest, and notice, promised M, a subsequent indorser, who had taken up the bill, to repay him, and afterwards received the bill from M, proved it in his own name against the estate of the drawees who had failed, and received a dividend upon it, ami retained the bill ; it was held, that I was liable on this promise to repay M, unless he could prove that his promise was made under a mistake of the facts. During the Christmas holydays vessels are not allowed to clear out at the Havana ; it seems therefore, that during the continuance of the holydays it is not necessary to write a notice of the dishonor of a bill, to be sent to a foreign port.</p>

<p>A written authority is not necessary in order to enable an agent to sign, for his principal, a contract required by the statute of frauds to be in writing.</p> <p>W, as agent for S, agreed with N, at Newburyport, to purchase of him a quantity of fish then at Newburyport, and N told W to go to C the next day and get him to sign the contract for N, if he was not in town himself. W accordingly wrote a contract stating a sale of the fish by N to S for “ 12$. 3d. per quintal and nine cents per quintal for delivering them in Boston, the wharfage to be paid by S, all other incidental charges to be paid by N, cash to be paid in Boston, the fish to be at S’s risk when on board the vessel at Newburyport.” C signed this contract for N and received from W a counterpart signed by W in behalf of S.</p> <p>C had no authority to act for N except that communicated by W. C delivered the counterpart to N the same day, who received it without objection, and did not object to it for several days. N having refused to deliver the fish, S brought an action on the written contract to recover damages for the non-delivery. Held ; —</p> <p>That N was bound by the contract, even if C had no authority to sign it, having adopted it:—</p> <p>That by the contract the fish were t > be delivered in Boston, and would not become the property of S until delivered there : —</p> <p>That therefore the damages recoverable must depend on the value of the fish at Boston at the time when they ought to have been delivered.</p>

This was assumpsit on a policy of insurance for 4000 dollars on the ship Panther “ at and from Boston to all ports and places on the globe and until her return to Boston, not exceeding two years from this date, September 11, 1824, at noon. The assured has liberty to cancel this policy at any time, by paying the amount of premium due pro rata, the same not to be less than two and a half per cent.” The premium was at the rate of five per cent per annum.

Case by the plaintiffs, as owners of the brig Only Son, foi m injury done to that vessel by the schooner Napoleon, of which the defendants were owners. It appeared on the trial, before Parker C. J., that the Naooleon, when sailing out of the harbour of Boston, bound on a foreign voyage, with a pilot on board, came in contact with the Only Son, which was lying in the stream, and the bowsprit of the Only Son was injured, and some other damage done.

<p>An original writ was indorsed by the plantiff ?s attorney thus,61 A. B. by his attorney, C. D.” Held, that C. D. was liable as indorser of the writ.</p> <p>In order to entitle a trustee, under St. 1794, c. 65, § 4, to costs, it is not necessary that the answer made by him at the first term should be sworn to in court.</p> <p>Where a person summoned as trustee is discharged and recovers judgment for costs against the plantiff, the indorser of the writ is not liable for such costs, his liability only extending to costs recovered by the defendant.</p>

<p>William Minot, as executor of the last will of Elizabetn Hancock, widow of Ebenezer Hancock, presented a petition to the judge of probate, representing that J. G. Rogers, as administrator de bonis non of the estate of Ebenezer Hancock in 1823, recovered judgment against John Plancock for the sum of 60,825 dollars, being for debts due from John to the estate of Ebenezer, and afterwards sued out a writ of execulion on the judgment, and on May 13, 1823, levied upon certain land of John, being an undivided sixth part of the mansion house estate of the late governor Hancock ; that this undivided sixth part was appraised at 18,710 dollars, which sum is credited in the administration account of Rogers ; that Rogers now stands seised and possessed of the whole estate in the land set off to him on execution, in trust for the sole use and behoof of the widow and heirs of the intestate, and that it is not necessary for the payment of debts, legacies, annuities, or charges of administration, and that it ought, by law, to be distributed as the personal estate of the intestate, and one third of it assigned to the petitioner as executor of the widow. The petition concludes with a prayer of distribution accordingly.</p> <p>Thomas Hancock filed an answer to the petition, in which lie states, that Ebenezer Hancock died intestate, leaving a widow (Elizabeth above named) and two sons (John aboyé named and Thomas the respondent) ; that Ebenezer died seised of much real estate, and of but little personal estate ; that a considerable portion of the personal estate was allowed to the widow by the judge of probate, and her dower duly assigned to her in all the intestate’s real estate lying within this Commonwealth ; that though the personal debts of the intestate were very small, yet that he was surety for his son John for a large ¿mount; that the creditors of John commenced suits against Rogers as administrator of Ebenezer, and under a commission of insolvency, and by virtue thereof, re covered judgments against the administrator to the amount of 57,435 dollars, and the administrator, in order to satisfy the debts, sold real estate of Ebenezer, of one half of which the respondent as one of the heirs was then seised, under a license of court, obtained for that purpose, to an amount sufficient to pay the demands; that by reason thereof a debt was created m favor of the administrator against John, and in consequence thereof the administrator commenced an action against John, and recovered judgment for the sum of 60,825 dollars, and levied an execution on his real estate and on certain equities of redemption ; the whole amounting to 26,030 dollars, and the estate mentioned in the petition being appraised and set off at the sum of 18,710 dollars. The respondent admits that this estate has never been distributed by the Court of Probate, but he denies that the widow, or her executor, has a right to any part of the same.</p> <p>The judge of probate, after hearing the parties, decreed that the administrator was seised and possessed of the land set off to him on execution, for the sole use and behoof of the widow and heirs of Ebenezer Hancock, and ordered a distribution of the same as of personal estate, viz. to the executor of the widow and to John and Thomas one third part each.</p> <p>From this decree Thomas appealed for the following reasons : •—■</p> <p>1. Because the estate in question was not the proceeds of debts due to Ebenezer in his lifetime, and in which alone his widow could be interested : —</p> <p>2. Because the moneys paid by the administrator for at c°unt of John, were not a part of the personal estate of Ebem ezer; in consequence of which the widow’s share of the personal estate was not diminished by such payment: —</p> <p>3. Because the dower of the widow in the real estate of Ebenezer had been set out before the sales under the license of court: —</p> <p>4. Because the real estate in the hands of the administrator is in place of the real estate of Ebenezer which had been sold for the payment of debts, and is to be distributed and disposed of in like manner : —</p> <p>5. Because, so far as it can be considered as personal estate, as such it is to be appropriated for the payment of debts, and to be applied, in the settlement of the estate, to the relief of the real estate and to the protection of the heirs at law : —</p> <p>6. Because the judge of probate has not marshalled the assets of the estate of Ebenezer according to the true intent and meaning of the statute of distributions of intestate estates.</p> <p>The petition was founded on St. 1788, c. 51, § 3, which provides, “that whenever any executor or administrator shall recover judgment for any sum of money, whereon execution shall issue, and lands, tenements or hereditaments shall be set off to the said executor or administrator, in discharge of the said execution, the said executor or administrator shall be seised and possessed of the whole estate in the lands, tenements or hereditaments so set off, to the sole use and behoof of the widow and heirs of the deceased intestate, or to [the use of] the residuary legatee or legatees of the testator, as the case may be ; and the Court of Probate may make distribution of the same, as of personal estate, accordingly ; unless the lands, tenements or hereditaments so set off on the said execution, shall be necessary for the payment of debts, legacies, annuities or charges of administration.”</p> <p>The 2d section contains a similar provision in regard to land mortgaged to the intestate, of which the administrator shah recover seisin and possession.</p>

<p>Assumpsit for money had and received, brought by the plaintiffs, merchants of Liverpool in England, against the defendants, merchants of Boston, to recover the dividends which had been received by the defendants on certain shares in the United States Bank. The case was submitted on an agreed statement of facts.</p> <p>The defendants, m the spring of 1825, remitted to Samuel Williams, a banker and commission merchant in London, one hundred and thirty shares in the stock of the United States Bank, owned by them, to be sold on their account. Williams, on April 19, 1825, sold to the plaintiffs, through a broker, eighty shares, and then made and signed the following documents : —</p> <p>“ London, 19 April, 1825.</p> <p>Dr. to Samuel Williams for the following U. S. Bank shares with the dividend from the 1st day of January, 1825.</p> <p>No. 3S7 — 25 in the name of C. & C. F. Adams. “ 374 — 55 “ “ “ “ “</p> <p>80 a £25 per share.</p> <p>London, 23 April, 1825.</p> <p>Received of the sum of</p> <p>pounds, being the full purchase money for the abovementioncd bank shares, of the United States of America, certificates for which I now deliver with power of attorney for transferring tie same ; and do hereby guarantee the regularity of said doc ti-men ts, and promise to be accountable for such dividends as may become due and be received by me or my agent from the 1st day of January, 1825, until transfer, provided such transfer be made within twelve months from this date.</p> <p>S. Williams.”</p> <p>On the 10th of May, 1825, Williams sold to the plaintiffs the remaining fifty shares, giving a similar document.</p> <p>These documents were made in blank to enable purchasers to dispose of the stocks and transfer them by delivery of the documents. But the defendants were not informed to whom the documents were sold or delivered.</p> <p>The stock continued to stand in the defendants’ names in the books of the bank until after January, 1826 ; and they, by the usages of the bank, were entitled to receive the dividends on the shares standing in their names, without producing the certificate of ownership. On July 18j 1825, a dividend of profits was made by the bank of two and three quarters peícent, amounting on the 130 shares to 357 dollars 50 cents, and a like dividend of the same amount was made January 18, 1826, both of which were received by the defendants. The defendants on June 29, 1825, received a letter from Williams, dated London, May 18, 1825, in which he says, “ I beg your reference to my respects of the 28th ult. and confirm the same, except as to the transfer of the bank shares, upon which I paid the dividend to the 1st of Jan. last. Since then I have ascertained that they have not been yet transferred, and if you find that also to be the case on the 1st of July next, you will retíeive another half year’s dividend, and I must pay it to the purchaser here.”</p> <p>The defendants, after having received the July dividend, remitted to Williams by the next packets on 22d and 30th of July, 2227Z. in exchange, which was received August 22d and 31st, and became cash September 24th and October 3d, 1825, for the payment of this dividend and other mercantile uses, but without any specification of the dividend or other purposes. Williams, by these remittances, became indebted to the defendants, and has ever since continued so.</p> <p>Williams became bankrupt October 25, 1825, and has never paid the plaintiffs, nor any one else, the amount of the dividend. After Williams’s bankruptcy, the plaintiffs, by their agents, made a demand on the defendants for the dividends which they had received ; the defendants paid the dividend of January, 1826, which they had received after they knew of Williams’s bankruptcy, but declined paying that of July, 1825.</p> <p>The letter of attorney to Williams, and his receipt and guaranty and bill of sale, continued in blank, and might have been transferred indefinitely up to May, 1826, without any possibility of the defendants’ knowing who was the owner, and they were never informed, until that time, that the plaintiffs were the owners.</p> <p>The defendants were to be defaulted or the plaintiffs to become nonsuit, according to the opinion of the Court.</p> <p>The case was argued in writing.</p>

<p>On an application for a mandamus to compel the clerk of a parish to give the pe- , tilioner a certificate of his having become a member of the parish, in order that he might file it with the clerk of the religious society which he wished to leave, the mandamus was refused, on the ground that the petitioner had a remedy by action, and a decision on this summary process might affect the rights of persons who had not been heard.</p>

<p>Tiie maker of a note, who has been committed to jail on execution on a judgment in favor of the holder, but has not paid the note, is still liable to be sued by an indorser who pays the amount of the note to the holder j and the suit of the indorser may he brought while the maker is still in jail in the prior suit.</p> <p>An action for money had and received may be maintained by the indorsee of a note against the maker, although the note was signed by the maker merely for the accommodation of the payee, and the maker never received either money or any other consideration for signing It.</p> <p>\Vhere the holder of a note with several indorsers in blank, sues the maker and writes over the name of the first indorser an order to pay it to himself, the holder, but without striking out the names of the subsequent indorsers, he does not thereby discharge them ; and therefore one of them who pays the amount of the note to the holder, may sue any of the prior parties.</p>

<p>A bill of exchange, which was indorsed by C of New Orleans, and was payable in Boston, was owned by T of New York. The bill was dishonored by non-accept-once August 11, and H, who was T’s agent at Boston, wrote to T by mail the same day, informing him of the dishonor of the bill. T, by an answer dated August 13, requested H to give the notices. H accordingly had the notice to C put into the mail at Boston, August 19 Held, that the notice was not seasonable, even if T was justifiable in sending to H, instead of sending notice himself directly from New York to New Orleans.</p> <p>It seems, that T was bound to send notice direct from New York to New Orleans. In an action by the holder of a bill of exchange against an indorser, a subsequent indorser is not a competent witness to charge the defendant, without a release from the plaintiff.</p> <p>The deposition of a witness was rejected at the trial, on the ground of interest, the plaintiff nonsuited, and the judge who tried the case refused to take off the nonsuit in order to give the plaintiff an opportunity to execute a release to the witness and have his deposition taken anew. It was held, that this was a proper matter for the discretion of the judge, and that his refusal was right.</p> <p>It seems, that the plaintiff had no sufficient ground for the postponement of the trial or continuance of the action, even if his motion had been made before the nonsuit was ordered.</p> <p>It is not necessary to object to the competency of a witness on the ground of interest, at the time when his deposition is taken ; it is sufficient to make the objection at the trial.</p>

This was assumpsit against the defendant as guarantor of two promissory notes. The action was tried before Parker C. J. A note for 1251 dollars was produced, dated November 27th, 1822, signed by George De Wolf for himself and John Smith, payable to the plaintiffs or order in eighteen months. This note was given for the premium of insurance on the ship Octavia and cargo, by a policy of that date. On the back of this note are the following words. “ Boston, April 27, 1825.

<p>In this action, the plaintiffs, who were copartners, déclared on divers promissory notes made to them before November 10, 1825. The defendant pleaded a general release of that date, signed by Emerson, one of the plaintiffs. The plaintiff, after oyer, demurred generally.</p> <p>The instrument of release was an indenture between the defendant, his creditors and John Lemist, whereby he assigned divers “ quantities of leather and stock designed for the manufacture of boots and shoes, and also of boots and shoes already made, or partly made,” in the hands of certain persons named, to Lemist in trust for the benefit of the creditors, narties to the indenture ; and they, in consideration of the premtses, released all actions, claims and demands against the de fendant. The release did not, on the face of it, purport to apply particularly to debts due to Emerson separately, or to those of the plaintiffs as partners ; and it did not appear that the defendant, at the time of making the assignment, was indebted to Emerson separately.</p> <p>The indenture contained a provision, that a schedule of the property should be made out and annexed “ as soon as may be.” No such schedule was annexed.</p>

<p>Elijah Loring and Washington Munroe were summoned as trustees in this case. The answer of Loring sets forth an ■indenture of assignment, dated January 5, 1828, by which Langton assigned his property to Loring and Munroe, for the benefit of Munroe, to whom he was indebted, and other creditors. In a schedule of borrowed money annexed to the indenture was enumerated a note to Munroe for 6161 dollars 13 cents, and in another schedule another note to him for 656 dollars 35 cents. He also states, that on the 8th of January, 1828, Langton came to his (Loring’s) counting-room, and stated to him for the first time, that the sum of 1000 dollars was included in one of the demands of Munroe over and above his genuine demands, and this he wished struck from the list of claims, as it was intended to be reserved for his benefit. On the same day, with Munroe’s consent, the amount of 10CU dollars was struck off, and a memorandum was written at the foot of the schedule, signed by Langton, Loring and Munroe, stating that it was an error, and therefore deducted. The note for 656 dollars 35 cents was also struck from the other schedule, and a similar memorandum made. On January 12, 1828, Munroe assigned his property to William Dehon and Loring, for the benefit of his creditors, including his claims against Langton, and the share which he was to receive of Langton’s effects, and by the same instrument he conveyed to Loring all his interest as trustee in the property assigned by Langton, so as to constitute Loring sole trustee of Langton’s property The answers of Munroe confirmed the statements of Loring. He also stated, that at the time when he consented to have the 1000 dollars struck off, he had not examined his papers, and for the moment supposed Langton to be correct in his statement, in relation to the supposed reservation of 1000 dollars ; but that on inspection of his papers soon after, he ascertained that Langton was under an entire mistake in relation to the supposed reservation, and that the sum of 1000 dollars ought not to have been struck off. Munroe also stated the items out of which the sum mentioned in the note was composed, which tended to show that the full amount was due to him. Munroe also claimed to have the 1000 dollars restored to the schedule.</p> <p>The note for 656 dollars 35 cents was included in a check for a larger amount.</p> <p>Langton having made an affidavit relative to the indenture, and tending to invalidate it by showing a reservation of 1000 dollars for his benefit, which affidavit was sent to Loring, an interrogatory was filed on behalf of the plaintiffs, requesting Loring to annex the affidavit to his answer. This he declined doing, because, as he says, “ he has not such confidence in the statements of Langton as to be willing to make them a part of his answer, and because he thinks he has reason to believe the statements of Langton heretofore made relative to said transactions, either through forgetfulness or otherwise, have been so grossly erroneous that they might be calculated to mislead the Court, and finally because he is advised by his counsel they are not proper to be introduced.”</p> <p>A motion was made by the plaintiffs, that the trustee should be ordered by the Court to annex the affidavit of Langton tc his answers.</p>

<p>If goods consigned to a commission merchant for sale, and on which he has a lien for a balance due to him from the owner, are attached as the property of the factor, the owner of the goods may maintain trespass against the officer who made the attachment.</p> <p>The lien of the factor is a personal privilege, and cannot be set up by any other person in defence of an action by the principal.</p> <p>A commission merchant, who had sold an article consigned to him, afterwards purchased it back at a reduced price on his own account, but it proving defective, the original owner who had made the consignment agreed to take it back, and it was accordingly charged to him in account by the factor, though it still remained in the factor’s possession, without any other act done to revest the property. Held, that the property was revested in the original owner, who might maintain trespass against any wrong-doer who took the article from the possession of the factor.</p> <p>If A’s personal property is attached in a suit against B, and A sells and assigns his property to a third person while it is under attachment, an action of trespass for the benefit of the vendee, against the attaching officer, is properly brought in the name of A.</p>

This was an action of covenant broken. The contract was an indenture made between these parties, whereby the defendant agreed to furnish 2000 dollars, for the purpose of “ carrying on the general business of brokerage in Boston, embracing, as time and opportunity shall give, the vending and selling of lottery tickets.” The defendant pleaded ;— 1. JVon est factum ; — 2.

Assumpsit against the surviving partner of the house of Stone & Kent, for goods sold and delivered, money had and received, and money paid. At the trial, before Wilde J., the plaintiff proved, that in 1825 he was a commission merchant residing at Manches^ r, England, and that his business consisted principally in executing orders sent to him from .the United States, for British manufactures.

Trespass on the case. The declaration alleged, that the plaintiff was the owner and was in possession of certain land and buildings, situate in Boston and bounded northerly on Essex street, which formerly belonged to John Trench, under whose title the plaintiff held ; that Trench was also owner of a triangular piece of land lying to the west of the plaintiff’s lot, being one hundred feet in length from south to north, fourteen feet wide at the south end, and coming to a…

This was assumpsit on a policy of insurance made by the defendants, on the 3d of January, 1825, insuring 1500 dollars on the brig Columbia, valued at 2000 dollars, and 2500 dollars on her cargo, for a voyage from Boston to a port or ports m the island of St. Domingo, and thence to her port of discharge in the United States.

This was assumpsit to recover damages of the defendants for refusing to transfer to the plaintiffs, (copartners,) on the books of the company, and deliver to them a certificate of twenty-five shares of the capital stock of the company, standing in the names of Adams & Amory, and alleged to have been assigned by them to the plaintiffs.

<p>A advanced money on the outward cargo of a vessel bound to Hamburg, the cargo, for his security, being shipped in his name, though really belonging to B & C, the owners of the vessel. The cargo was sold at Hamburg by the agents of the owners. The ship sailed for Russia, and there took in a return caigo, which was shipped by D & Co. the agents of B & C, and paid for out of the proceeds of the outward cargo which they had received from Hamburg. D & Co. took from E. the master, bills of lading in which the cargo was to be delivered to order or assigns, and no freight was specified. D Sc Co. indorsed the bills of lading to A and transmitted them to him. But E did not know that they had been so indorsed. During the voyage home the vessel was forced to put into Copenhagen, and seven bundles of hemp were taken out, which, as it could not be restowed, was left by E with merchants there, with orders to have it sold, and the proceeds sent to London to the credit of B, the principal owner. The proceeds were accordingly remitted and received by B, who failed before the ship returned to the United States, but whose failure was not known to the master at the time when he gave these orders. In an action brought by A against E for money had and received to recover the proceeds of the hemp, held, that E, not knowing of A’s interest in the cargo, was justified in directing the proceeds of the hemp to be credited to B ; and that the action could not be maintained.</p>

<p>Ti-iis was a bill in equity. The bill sets forth, that by an indenture made between the complainant and John Grew, “ late of Boston,” the defendant’s testator, on January 1st, 1818, the complainant and John Grew entered into partnership for fi.ve years in the hardware business. The bill sets out the terms of the indenture, one of which was, that at the dissolution of the partnership, Grew or his representative should have the power to sell the stock and settle.the business ; and the partnership subsisted until it was dissolved by Grew’s death on September 25th, 1821. The bill further states, that when the indenture was made, the complainant was little more than twenty-one years old, and had never transacted any mercantile business of consequence except as clerk to Grew; and that Grew brought into the partnership his old stock, which consisted in a great part of shop-worn and unsaleable articles, and charged it to the partnership at a higher price than it was worth ; and that the complainant had also been injured by the mode in which the annual accounts of stock were taken and inters*, charged ; and that if the business was fairly settled, a balance would be due to the complainant; but that no final account has ever been settled between him and Grew or Grew’s representatives ; that after Grew’s death, the defendant and Henry Wainwright, since deceased, were executors of Grew’s will; that the complainant wished them to settle the partnership business, but that they declined, and requested him to settle it and agreed to allow him a compensation for it; that he thereupon proceeded to sell the stock and collect the debts of the partnership ; and that in August, 1822, during Wainwright’s life, the complainant took a certain quantity of the joint effects, for which he gave three notes for 2233 dollars 33 cents each, to the executors, and on September 10th, 1824, another note for 1200 dollars, and on October 23d, 1824, another note for 973 dollars 82 cents ; all which notes the complainant avers that he has paid, except one of those for 2223 dollars 33 cents, upon which the present defendant as executor, since Wainwright’s decease, has sued the complainant, which suit he alleges to be still pending in this Court. The complainant further alleges, that he has paid large sums to the executors ; and that on a fair settlement it will appear that they have been overpaid, and that no part of the note ought to be paid to Henry Grew as executor ; but that he is indebted as executor to the complainant. The bill alleges a refusal on the part of the executors, and the survivor of them, to settle with the complainant. The prayer of the bill is, that an account may be taken of all the partnership dealings, and that the defendant may be held to account for all the moneys received by John Grew and by the executors or either of them since his decease ; and that the defendant may be restrained by injunction from all further proceedings in the suit at law on t^e note.</p> <p>The defendant demurred to so much of the bill “ as does not relate to his character and capacity of executor &c. as aforesaid and to the said copartnership dealings,” alleging for causes of demurrer, 1. That it is apparent from the complainant’s own showing, that he has no ground of complaint, for he does not pretend that there was ever any controversy in relatian to the payments and receipts mentioned in the bill: 2. That if there is such ground of complaint, the complainant has a complete remedy at law.</p> <p>As to the residue of the bill, “and the several allegations therein contained not herein before demurred to,” the defendant pleaded the statute of 1791, c. 28, limiting suits against executors and administrators to the term of four years, from the time of their accepting the trust, provided they give notice of their appointment according to law. He averred that he and Wainwright, at a Probate Court held in Boston, October 8, 1821, were “duly appointed executors of the last will and testament of John Grew then late of said Boston, merchant, deceased, and then and there duly qualified themselves as such executors by giving bonds according to law, and did thereaflerwards within three months from the day last aforesaid give public notice of their said appointment and acceptance of said trust according to law, by posting up notifications of their said appointment and having taken upon themselves that trust, at public places in said city of Boston; ” also setting forth a publication in the Boston Gazette, and averring that four years had elapsed since the defendant accepted the trust of executor.</p>

<p>This was a bill in equity. The bill alleges that the defendants, Winslow and Henry Lewis, were indebted to the bank as indorsers of a note dated January 4tb, 1822, signed by Eyre M. Jeffries, for 1462 dollars 50 cents, payable in six months and grace to Robert Ludlow or order, and indorsed by him and by W. and H. Lewis. The bill also alleges a due presentment and dishonor of the note, and notice to the defendants.</p> <p>The bill further alleges, that on January 15th, 1824, Wins-low and Henry Lewis, by indenture, conveyed their property to Alexander Townsend and Samuel Austin junior, the other defendants, in trust to pay certain claims set forth in a schedule thereto annexed, in full, one of which was that of the plaintiffs, and then to divide the residue of the proceeds of the property ratably among certain other creditors ; that the note has never been paid ; that Jeffries is insolvent, and that Ludlow died in solvent; and that the plaintiffs gave notice to the trustees, oi their intention to take the benefit of the provisions in the inden turc in relation to their claim.</p> <p>The plaintiffs further allege, that the trustees accepted the trust; and in answer to a pretence of the defendants, that the indenture was never executed and delivered to the trustees, they charge that the same was executed and delivered to the trustees and by them accepted, and that they have proceeded to sell and dispose of the property, and to apply a part of the proceeds in payment of debts which by the terms of The indenture were postponed to that of the plaintiffs, but have re fused to pay the plaintiffs.</p> <p>In answer to another pretence of the defendants, that the plaintiffs have no remedy, because they formerly brought an action atTaw against Winslow and Henry Lewis on the note, in which action judgment was rendered in favor of the defend ants, the bill charges that the defence set up at the trial of that action was, that the suit, which was commenced on the do) when the note fell due, was brought before notice of its dishonor had been given to the defendants, who were indorsers, and that this was the only defence, and that judgment was rendered in favor of Winslow and 'Henry Lewis on the ground alone that the action was brought prematurely ; and the bill alleges that this judgment is no bar to an action, even at law, on the note, brought after notice was given. [See Wet» England Bank v. Lewis, 2 Pick. 125.]</p> <p>The prayer of the bill is, that the trustees may stand charged with the execution of the trust, and be ordered to pay the plaintiffs the amount of their debt.</p> <p>The answers of the defendants admit the material averments as to the note, but insist that the "indenture was never delivered except conditionally, if they are allowed to do so after the decision of this Court in Ward v. Lewis. [See the case in 4 Pick. 518.] They also urge the judgment in the suit on the note as a bar to the bill.</p> <p>Townsend, in his answer, states that after executing the indenture he returned^ it to the Lewises, and never saw it again until the filing of the bill in Ward v. Lewis, when two parts were put into his hands by the Lewises as their counsel ; he denies that any part of the property ever came to his hands, or that he acted as assignee ; and he asserts that the trusts were never affirmed by the plaintiffs, but were disaffirmed by their suit at law ; and he denies that he ever had notice that the plaintiffs intended to avail themselves of the trust, until August 25, 1825, at which time he received a written notice from their solicitor that they desired to avail themselves of the trust in the indenture, which notice was addressed to him and Austin, but which he did not communicate to Austin until April 20, 1827, supposing Austin to have received a like notice.</p> <p>The answer of Austin relies upon the same facts which are stated in Ward v. Lewis, to show that the indenture was never delivered ; and states that property of the Lewises was put nto his possession, with which he charged himself, the particulars of which appeared in an account referred to ; and that the Lewises having settled with all their creditors who had subscribed the indentures, the balance of the account was merged in his private accounts with the Lewises, which accounts have all been liquidated and paid, except 3882 dollars, the amount of the judgment against him in the suit of Ward v. Lewis, which he paid out of his own property that he has since received of the Lewises 2820 dollars, leaving a balance of 1062 dollars due him, for which he has no security ; that after the execution of the indenture, certain proceedings were had among the creditors, which are stated at large in his answer in the case of Ward v. Lewis, from which he was led to believe that the indentures were given up and abandoned, and that he acted accordingly ; he further states, that shortly after he had signed the indenture, Samuel Dorr, the president of the New England bank, having called on him to examine the indenture, he asked Dorr to execute the same in behalf of the plaintiffs, which Dorr declined ; and he denies that he ever received any notice that the plaintiffs intended to avail themselves of the trust, until about April 20, 1827, and after the termination of the suit of Ward v. Lewis. He also insists that the judgment on the note, at law, against the plaintiffs, was a bar to this suit; and denies any trust, or that the same was ever affirmed by the plaintiffs ; but alleges that the same was disaffirmed and repudiated by the psosecution of the suit at law by the plaintiffs.</p>

<p>A verdict will not be set aside as against evidence where there is evidence on both sides, unless it is manifest that the jury in giving tneir verdict must have mistaken or abused their trust.</p> <p>Where a note is made by A payable to B, and indorsed by C at the time it is made, C becomes a promiser on the note, and may be declared against as such.</p> <p>It seems, that from the form of the note, without any other evidence, C will be regarded as surety to A.</p> <p>In an action by B against C as a promiser of such a note, the declarations and admissions of A are not admissible against C, for A is himself a competen! witness.</p> <p>A creditor who has his debt secured by a surety, and has also property pledged lo him by the principal debtor as security, is bound to keep the property for the benefit of the surety as well as himself, and if he surrenders the property without the knowledge and consent of the surety, he loses his claim against the surety to the amount of the property given up.</p> <p>A surety, who is sued alone, is entitled in this State to the same defence in law which he would have in equity.</p> <p>Whether the surety can set up such equitable defence when he and his principal are sued in a joint action, queere.</p> <p>If the '“•"^ditor informs the surety that his debt is paid, and the surety thereby loses an opportunity of securing himself against his principal, the surety is discharged, although the debt was not in fact paid, and the creditor acted under a mistake in the declaration which lie made.</p> <p>Where the creditor received from the principal debtor the note of a third person to a larger amount than the debt, and gave a receipt which stated that the note was received “ in security for all notes signed ” by the debtor, it »as held, in an ac' ion «gainst the surety, that paroi evidence might be received to show that the note of the third person was received in payment by the creditor, and with intent to discharge the debtor and his surety. '</p>

<p>Indictment against Kennard and two others. The first count is for a common assault and battery upon one Smith. The second count alleges, that on October 2, 1826, by virtue of a writ of attachment, James Dennie, a deputy sheriff, attached certain goods and placed them in the custody of Smith, and Smith being lawfully in possession of them under the authority of the deputy sheriff, the defendants on the same day assaulted and beat Smith, and with force and a strong hand deprived him of the custody and possession of the goods.</p> <p>Kennard, as to whatever is against the peace, pleads not guilty ; and as to the residue of the offence charged, he pleads, that Brodhead, one of the defendants, and one Coolidge, be. fore and at the time when the offence is supposed to have been committed, were possessed of a certain shop, and of certain goods, being the same goods mentioned in the indictment, which were the proper goods of Brodhead and Coolidge, and being so possessed thereof, Smith, on, &c. was unlawfully in the shop, against the will of Brodhead and Coolidge, and with a strong hand kept them out of possession of the shop and of the goods, and that Brodhead requested him to depart from the shop and to give up the goods to Brodhead and Coolidge, which he refused to do ; whereupon Brodhead requested Kennard to aid him in the defence of the possession of the shop and goods, and thereupon in defence of the shop and goods, they gently laid their hands upon Smith and removed him from the shop and from the goods.</p> <p>Replication, de injuria sua, SfC.</p> <p>Verdict, guilty in manner, &c. and of his own wrong, and without any such cause, &c.</p> <p>At the trial, before the chief justice, it appeared, that Dennie, on the 2d of October, 1826, having a writ of attachment in favor of Lambert & Patterson against one Motley, went with Lambert, soon after sunset, to the shop which had been occupied by Motley, and there found goods which he attached. Dennie left Smith in the shop, directing him to keep possession by virtue of the attachment. Jn the course of the evening Smith was put out of the shop by force, by direction of •Brodhead, Kennard assisting by Brodhead’s request. No more force was used than was necessary to put Smith out of possession, and no unnecessary harm was done to him, though he was, probably without design, slightly hurt in the arm.</p> <p>Kennard offered to prove, that previously to the attachment, Motley had assigned the goods, for the benefit of bis creditors, to Coolidge and Brodhead, and that they immediately took possession of the goods, and appointed an agent to take charge of them ; that this agent was in the shop, claiming to hold the goods in behalf of his principals, during the whole time that Smith was there ; and .that he informed Dennie, at the time of the attachment, that the property belonged to Coolidge and Brodhead. The execution and validity of the assignment , . , were admitted.</p> <p>Evidence of these facts was rejected, on the ground that they did not constitute a justification ; and the verdict was thereupon taken by consent, subject to the opinion of the whole Court.</p>

<p>Samuel Thompson of Medford was brought before the Court upon a writ of habeas corpus directed to Barnard Brickett. By the return it appeared, that a suit was brought in Vermont, before a justice of the peace, by William Brock against Thompson, in which Thompson was arrested and Brickett became his bail; that a judgment was rendered against Thompson ; and that Brickett took him at Medford for the purpose of removing him to Vermont, to deliver him up there in discharge of Brickett as bail.</p> <p>In Vermont, the person becoming bail in a civil action, indorses his name on the writ, and the officer delivers to him a bail-piece ; and when he desires to take the body of the principal, the bail-piece is sufficient evidence to entitle him to a warrant from any judge &c. to take the body.</p>

<p>The selec;men of a town being appointed guardians of a spendthrift, under the statute authorizing the judge of probate to appoint the selectmen or 66 other suitable persons,” do not cease to be such guardians on the expiration of the period for which they were elected to the office of selectmen.</p> <p>It is not requisite that such guardians should give a bond with sureties, as a condition precedent to their acting ; it being in the power of the judge of probate to remove them at any time, on their failing to give security as he may direct.</p> <p>One of two witnesses to a deed deposed that he did not recollect witnessing it, but knew the attestation to be in his handwriting, and that the other subscribing witness had a short time previously, but long after the commencement of the suit, m which the deposition was taken, left the Commonwealth, after advertising his intention so to do, and that though the deponent did not recollect having seen him write his name, he had often received letters from him, and thought the signature in question was his handwriting. Held, that this was sufficient proof of the execution of the deed for the purpose of reading it in evidence.</p> <p>A grantee, not having been in actual possession of the granted premises otherwise than by leasing them to his grantor and receiving rent from him, executes to a purchaser for a valuable consideration, a deed of conveyance, by tc quitclaim and release ” in the form in common use in Massachusetts, which was duly recorded m the registry of deeds. Held, that this was a sufficient conveyance to pass the estate, though the releasee had not a previous interest in or possession of the estate. _</p> <p>Where a witness on the stand, upon cross-examination, contradicted a deposition he had previously given in the same case, the party calling him was not permitted to call other witnesses in support of his general character for truth.</p>

This was assumpsit on a bill of exchange drawn by John R. Bradford, in Boston, on the 15th of March, 1826, on the defendants, merchants of Richmond, Virginia, for 1000 dollars, payable in four months at the Mechanics’ Bank in New York, to the order of the. drawer, by whom it was indorsed. The plaintiff was the second indorser.

<p>Assumpsit on a bill of lading, dated October 15th, 1827, against the owners of the sloop Hero, one of whom, Ephraim Ripley, was then master. The bill of lading was signed by Ripley, and was In the common form ; stating that the goods were shipped in good order by the plaintiffs, on board the sloop then u lying in the port of Boston and bound for Charleston, South Carolina ; ” for which voyage she had before been advertised. The plaintiffs had effected insurance to the amount of 2584 dollars on their shipment, “ from Boston to Charleston.” Goods had been taken on board of the sloop for divers persons, to be delivered at Edgartown, in Martha’s Vineyard, and the master intended, at the time of sailing, to put into that • port for the purpose of delivering such goods. The master did m fact put in there on the voyage, and remained there , about three days, and delivered the goods shipped for that port. He then proceeded on the voyage to Charleston, in the course of which he encountered bad weather, and was stranded on the coast of Virginia, whereby the plaintiff’s goods were wet and damaged, and, in consequence of the disaster and damage, were sold by auction at considerable loss : to recover which loss this action was brought; on the ground, that the taking goods for Edgartown and stopping to deliver them, dis charged the underwriters from any liability under the policy.</p> <p>At the trial, the defendants offered evidence, that though there was an original intention to put into Edgartown, yet, in fact, the sloop went in on account of the wind and tide, and that as these were at the time, she would have gone in, though there had been no such original intention; and that she was not detained by the delivery of the freight there, but proceeded on the voyage as soon as the wind permitted. Wilde J. allowed this evidence to be given, and instructed the jury, that if they were satisfied that the sloop went into Edgartown on ui count of the state of the winds and tide, and that they were such as to render it expedient to go in there, and that she was not detained by the delivery of the freight, they should find a verdict for the defendants ; whereupon the jury found a verdict for the defendants. If this evidence was improperly admitted, or if the instruction was erroneous, the verdict was to be set aside.</p>

This was a writ of error to reverse a judgment of the Court of Common Pleas, rendered at the September term 1826, in Middlesex, against the plaintiff in error. The original suit was an action of assumpsit on a promissory note, brought by War ren, the defendant, against Peck, the plaintiff in error, as promisor.

<p>A subsequent attaching creditor being admitted, under the statute of 1823, c. 142, to defend against the first attaching creditor, is not confined to the grounds of defence of which the debtor might have availed himself, the object of the statute being to prevent collusion between the first attacher and the debtor.</p> <p>The general rule, that a party cannot give evidence of his declarations in his own favor, applies to declarations made by the plaintiff in an action which is defended, pursuant to the statute, by creditors of the defendant.</p> <p>A note was made by a failing debtor, on which the payee immediately made an attachment of the debtor’s property. Part of the alleged consideration of the note was an acceptance made by the payee, of an order drawn on him by the debtor in favor of another creditor, A subsequent attaching creditor being admitted, under the statute, to defend, it was held, that the plaintiff could not introduce evidence of his own declarations made on the day when the note was given, to show that the acceptance was made before the attachment.</p>

<p>ín an action on the case, for falsely representing H to be “ worthy of credit,” knowing he was not, the defendant pleaded the general issue. The jury retired on Saturday afternoon and separated in about three hours, the judge having authorized them so to do, when they had made up their verdict; and on the following Monday morning, they rendered in a verdict,<6 that the defendant did not say H was perfectly good, knowing it to he false and with intention to defraud.” The judge informed them what the issue was, directing them to retire again ; which they did, and returned with a similar verdict, adding thereto, “ and they thereupon find the defendant not guilty.” Held, that the first verdict was defective in form only, and therefore that the separation of the jury and the return of the sec and verdict were not grounds for a new trial.</p>

This was assumpsit on a promissory note, dated October 4, 1826, payable to the defendant’s own order, and by him signed and indorsed. It was taken by Whitwell, Bond and Seaver, in payment for goods of the plaintiff sold by them, as auctioneers, to the defendant. The defendant pleaded five pleas, on three of which the pleadings terminated in issues of fact, and on the two others, by demurrer to a surrejoinder.

<p>Trespass for mesne profits. The parties stated a case.</p> <p>John Ballard senior owned the estate. He died March 2, 1824, testate, leaving six heirs at law, the wife of the plaintiff being one of them and the wife of the defendant another. At the time of his death, the defendant, with his family, occupied the estate ; and he continued so to occupy until September 23, 1824, supposing that he owned, in right of his wife as one of the residuary legatees, one third of the estate. He then pur chased the other two thirds of the other residuary legatees, and supposed he was the lawful owner of the whole ; and from that time he claimed exclusive right to the whole under the will and the deeds. It was not until after he had made this purchase, that any intimation was given him that the other children of the testator supposed he died intestate as to this messuage ; and no demand for rent or claim of interest in this estate was made by the plaintiff until October, 1825, when he asserted and claimed his wife’s right therein. The heirs whose rights were denied having bound themselves to pay, by contribution in proportion to their several interests, the costs of all suits which might be necessary to establish their several titles, by mutual agreement between them a suit was brought on July 24, 1826, by the minor children of William Ballard, a son of the testator, to recover from the defendant one sixth part of this estate ; and on August 20, 1827, it was determined that the testator died intestate as to this messuage, and the defendant was defaulted in that action. (See 5 Pick. 112.) In February, 1828, the defendant petitioned for partition, neither the plaintiff nor any other person objecting, and commissioners were appointed, whose return, dated June 5, 1828, was accepted by the Common Pleas in July following. On March 3, 1828, the plaintiff received notice that the defendant was holding only as a tenant in common, and therefore he would pay no rent. Prior to the meeting of the commissioners, neither the plaintiff nor his wife ever took formal possession of any part of the messuage, or entered thereon declaring their intention to make an actual entry ; but both were served with an order of notice on the petition for partition, and at the meeting of the commissioners both the plaintiff and the defendant were present with them on the estate, took part in the proceedings, and the plaintiff, in right of his wife, claimed one sixth part of the estate. The defendant never received any rent from the estate, but occupied it from the second of March, 1824, to the time of the partition.</p> <p>The questions were, whether the plaintiff was entitled to recover any rent in this action ; and if so, for what length of time.</p>

<p>This was an action of debt to recover a balance alleged to be due to the plaintiffs for building a meetinghouse for the defendants, who were a corporation, and for extra-work and materials about the same. On the 30th of May, 1827, a contract under seal was made by the parties, by which the plaintiffs, among other things, “ covenant, promise and agree, that they will, on or before the 1st of December next after, in a good and workmanlike manner, substantially erect and build, and, except the cellar and basement story, completely finish a meetinghouse for said proprietors, according to a plan exhibited,” &c. “ The roof shall be made according to the plan before refer-1 ed to, well strengthened, and covered with slate, in a thorough and proper manner,” &c. “ And it is agreed that the materiais of every kind shall be good and well seasoned, and that the whole shall be completed in a workmanlike manner.” And the defendants agreed to pay 8000 dollars, in instalments, for building the meetinghouse. The house had been built’by the plaintiffs, and been occupied by the defendants as a place of public worship, but without prejudice to their rights.</p> <p>The declaration contained nine counts ; — 1. The first sets forth the contract, avers performance on the part of the plaintiffs and alleges that the defendants have not paid the sum of 8000 dollars, nor any part thereof, excepting the sum of 6004 dollars, per quad actio accrevit. 2. The second is the same as the first, except that it sets forth that the contract was made by a committee on behalf of the defendants. 3. The third is similar to a count in indebitatus assumpsit for work, labor, care, diligence, &c. and materials found. 4. The fourth is quantum meruit for labor and materials to the value of 3000 dollars. 5. The fifth is similar to a count in indebitatus assumpsit for money paid, laid out and expended, to the same amount. 6. The sixth is for interest. 7. The seventh is upon an account stated. 8. The eighth counts upon the contract, as in the first, except that it avers the whole sum of 8000 dollars to be due. 9. The ninth is like the eighth, except that it alleges that the defendants did not pay the two last instalments stipulated for in the contract, viz. 1000 dollars when the outside of the meetinghouse was finished, and 1000 dollars when the building was completed, per quad actio accrevit to recover 2000 dollars, parcel of the sum of 8000 dollars. The defendants pleaded generally to these counts nil debet; on which issue was joined.</p> <p>The defendants objected to the joinder of these counts, on the ground that, in this Commonwealth, debt on simple contract does, not lie for work and labor, and a quantum meruit thereon.</p> <p>Wilde J., before whom the action was tried, reserved this question.</p> <p>The defendants introduced evidence, that the roof of the house was constructed in an unskilful and unworkmanlike manner, and that some of the materials were not of the quality agreed upon in the contract.</p> <p>The defendants objected to the introduction of any testimony on the part of the plaintiffs under the counts for labor done, and materials found, contending that under the counts founded on the contr "ct such evidence ought not to be admitted But the judge ruled, that the plaintiffs might show that they were reasonably entitled to recover for labor and materials, independently of the "contract, and that the defendants might introduce evidence to rebut the plaintiffs’ evidence and show that they had derived no benefit from the plaintiffs’ labor and materials ; and the testimony was introduced accordingly. The testimony of the defendants tended to show, that the roof was so improperly constructed and of so bad materials, that it must be taken down, and so was of no value to them. Upon this point the judge charged the jury, that if thé roof ought to be taken down, and that over and above the value of the old materials, it would cost the defendants as much to take it down and rebuild it, as remained due upon the contract, provided it had been fulfilled on the part of the plaintiffs, they should find for the defendants ; but if the roof need not be taken down, but might be. strengthened and supported, they might deduct from the sum so remaining unpaid, the amount it would cost to make the roof safe and substantial, and find the balance for the plaintiffs ; but if they thought there was reasonable ground to doubt whether the roof could be sufficiently strengthened, they ought to decide against the plaintiffs ; whose duty it was to satisfy them on this point.</p> <p>The jury found a verdict for the plaintiffs, for 743 dollars , the amount due on the contract, had it been complied with, being 1996 dollars.</p> <p>If the counts were improperly joined, or if the evidence to prove the quantum meruit was improperly admitted, after it appeared that the special contract had not been performed, the verdict was to be set aside and a new trial granted.</p>

This was an action against the defendants, who were owners of the New York mail coach, as common carriers, to recover the value of a package of laces, which had been sent by the plaintiff to one of the defendants’ coaches to be transported to Hartford.

<p>A certificate obtained under an insolvent law of one State, which declares the person of the insolvent to be exempted from arrest for debts contracted previously to his assignment, is no bar to an action on such a debt, commenced by arresting him, in another State.</p> <p>W, a resident in New York, made at that place a' negotiable note, in payment for goods, to an agent of a corporation established in Massachusetts, the agent also residing in New York, and W knowing the contract to be made on behalf of the corporation. W afterward assigned his property and obtained a certificate under the insolvent laws of New York, which declared his person to be exempted from arrest for debts contracted previously to his assignment. Held, that this certificate was no bar to an action brought by the corporation against W in Massachusetts, which was commenced by arresting him ; and that the certificate could not affect the judgment or form of the execution in Massachusetts.</p> <p>Whether W has any remedy for being arrested on mesne process or on execution in Massachusetts, queere.</p>

<p>An account that is closed, is not in consequence necessarily a settled account'.</p> <p>An account “ concerning the trade of merchandise, between merchant and me* chant,” is not barred by the statute of limitations, although none of the items are within six years before the action was brought.</p> <p>The death of one of the parties to such an account, does not operate as a settlement or statement of the account, so as to bar it by the lapse of six years from the time of his death.</p> <p>Whether accounts concern u the trade of merchandise between merchant and merchant,” is a question of fact to be decided by the jury.</p> <p>Such accounts are not merely accounts for merchandise bought and sold between the parties, but also include demands for money growing out of the trade of merchandise.</p> <p>The lapse of twenty years from the time of a debt’s becoming due, does not operate as an absolute bar to its recovery, but affords a presumption of payment j which presumption may be rebutted by evidence, tending to show that payment has not in fact been made.</p>

<p>A discharge obtained under an insolvent law of one of the United States, is no bar to an action brought by a citizen of another State against the insolvent, even upon a contract made between them in the State where the insolvent law was passed. Therefore where P, who was residing in New York with the intention of becoming a citizen of that State, sold goods there as the agent of B, a citizen of Massachusetts, to M, a citizen of New York, taking for them M*s note payable to P or order in three months, which P immediately passed to B j and afterwards M obtained a discharge under the insolvent law of New York ; in an action by B as indorsee against M as maker of the note, it was held, that the discharge obtained in New York was no bar to the action.</p>

<p>An officer went on board a ship with a writ, in order to attach goods as the property of a consignee, and the goods being in the lower hold covered up with other goods, lie did not go below or see the goods, but paid the freight to the master, and left a keeper to take charge of the goods, as attached, and returned on the writ, that he had attached them at the time when he went on board. The keeper continued on board several days and took possession of the goods when they were hoisted from the hold. It seems, that in point of form the proceedings of the officer and his keeper constituted a valid attachment of the goods.</p> <p>Hoods shipped on board a vessel, are still in transitu after the arrival of the vessel in which they are shipped, until they are taken possession of on behalf of the consignee.</p> <p>An attachment of goods on board a vessel, as the property of the consignee, does not defeat the right of the consignor to stop them in transitu.</p> <p>Though the right of stoppage in transitu on the part of the consignor is adverse to that of the consignee, yet the consignor’s right of stoppage is not defeated by his obtaining from the consignee a writing, in which the consignee declares that he revokes the order for the consignment, declines to receive the goods, and requests the master of the ship, or any other person having the goods in his custody, to deliver ‘hem to the consignor.</p>

Assumpsit on a promissory note, dated August 31, 1813, for 1100 dollars, signed by the defendant, payable to one Kettell, or his order, and by him indorsed to the plaintiff. The defendant pleaded the general issue, which was joined ; also non assumpsit infra sex annos, and actio non accrevit infra sex annos; to which the plaintiff replied a new promise within six years, and that the action did accrue within six years ; and issues were joined on these replications.

<p>An ante-nuptial contract by which the wife is to hold her own earnings to her separate use, is fraudulent as it respects previous or subsequent creditors of the husband.</p> <p>Whether a settlement upon a wife after marriage, without any previous contract or consideration, by a person free from debt, is valid against creditors, qucerei but at any rate the intention to make such a settlement must be clearly proved.</p> <p>Husband and wife give their joint promissory notes and take from the promisee a bond, that if they, or either of them, pay all taxes on certain land, he will, upon payment of the notes, convey the land, at the request of the wife, to her or her appointee. The husband is an ignorant man, and incapable, by reason of alien-age, of holding real estate. Held, that an intention to make a settlement on the wife was not clearly proved ; and she was decreed to deliver the bond over to the husband’s assignee.</p> <p>Pending a bill in equity to obtain possession of a bond admitted by the defendant to be under her control, on motion it was ordered, that she should leave it with the clerk of the court, with liberty to the plaintiff to take a copy.</p> <p>The constitutional provision, that a subject shall not be compelled to furnish evidence against himself, has reference to criminal cases only.</p>

Petition for a certiorari, to set aside certain proceedings of the mayor and aldermen of the city of Boston in relation to the widening and laying out of a street over land of the petitioner and taking away a part of his store standing on the same.

Assumpsit. The action was brought on the 24th of July, 1826, the service being by an attachment of the defendant’s interest in certain real estate. The sixth count was upon a promissory note dated at New York, March 26th, 1825, for 787 dollars and 50 cents, payable in six months to T. G. & W. F. Cary, and by them indorsed to the plaintiffs.

Assumpsit on a policy of insurance upon the ship Esther, at and from Boston to Valparaiso, and at and from thence to all ports and places to which she may proceed, backwards and forwards, until her return to her port of discharge in the United States, the risk commencing December 1.4, 1821, and being limited to two years from that time, against perils of the seas, fire, enemies, pirates, assailing thieves, restraints and detainments of princes, &c. The plaintiffs aver their…

<p>This was an action on the case brought by the owner of a house for cutting away a part of it while it was in the occupation of his tenant for the term of one year. After a verdict for the plaintiff, it was moved in arrest of judgment, that trespass, and not case, was the proper form of action.</p>

<p>In assumpsit, to recover one quarter of the proceeds of the sale of a vessel and of her earnings previously to the sale, the plaintiff, in support of his title, produced a bill of sale of one quarter thereof from S, who with three others was the first owner of the vessel. The defendant produced a paper, executed previously to the sale to the plaintiff, by all the first owners, whereby they agreed to " pledge ” to the defendant the vessel, then building as security for his advances thereon, and .j allow the defendant to buy any part of the vessel, at a certain rate per ton. 1 he vessel was afterwards sold by the defendant ; but his advances amounted to more than the proceeds of the sale and earnings. Held, that the !ast mentioned in* rfrument was not an absolute transfer, nor a mortgage, nor a pledge j and that without a delivery of the vessel, it was incompetent to avoid the subsequent transfer to the plaintiff.</p>

<p>This was a bill in equity, brought by the plaintiff in his own right and as executor of the last will of Joseph Peirce.</p> <p>The bill charges, that on March 21, 1811, Dorr lent to Joseph Peirce 3000 dollars, and that Peirce thereupon, as security for the loan, executed to Dorr an absolute deed of certain lands in Maine, without taking from him any memorandum in writing or instrument of defeasance; that on April 2, 1811, Peirce, at the request of Dorr, returned 1000 dollars, and thereupon Dorr gave him the following note : — “ Boston, April 2, 1811. Value received I promise to pay Joseph Peirce one thousand dollars with interest, when certain lots of land at West Boston, which I bought of him, as by the deed of the 7th of March last, and certain other lots and lands which 1 purchased of him lying in the District of Maine, as by the deed of the 21st of March last, shall have been sold, provided they produce in cash with interest the several sums expressed i” the respective deeds, and if not, the deficit is to be considered as part payment of this note. John Dorr;” that on the 4th of October following, at the like request of Dorr, Peirce returned him 2000 dollars, the rest of the sum lent, and Dorr ought to have reconveyed the lands in Maine, and Peirce requested him so to do ; but Dorr refused, and in lieu thereof gave Peirce a note like the one above recited, except as to the date and the sum ; that the transaction of March 21, 1811, was wholly distinct from any other transaction between the parties, but that Dorr availed himself of the embarrassed state of Peirce’s affairs at the time, and of his age and infirmities, to connect it with a transaction of March 7, 1811, and declared that he would reconvey the lands in Maine, on the final settlement of their dealings ; that on March 7, 1811, Peirce was indebted to Dorr, according to Dorr’s statement, in the sum of 2272 dollars, to secure the" payment of which sum Peirce executed to Dorr an absolute deed of two lots of land lying at West Boston ; that these lots exceeded in value the debt due to Dorr, and that it was understood that Dorr should sell the same, and after deducting from the proceeds the debt due to himself, should pay the surplus to Peirce ; that it was not necessary for the security of Dorr, that he should retain the lands in Maine, and that Peirce submitted to it because he supposed himself to be without remedy ; that Peirce made repeated requests to Dorr to sell the lots in Boston, and upon his refusal, proposed that Dorr should reconvey to him one of the lots, in order that he might, by the sale thereof, raise money to satisfy the claim of Dorr, but that Dorr refused this request also ; that during this negotiation Dorr delivered to Pierce a statement of the account between them, in which he charges 105 dollars “ for commissions and care ” as trustee, and also sent to Peirce the form of an obligation, proposed to be executed by Dorr, releasing one of the lots in Boston, and binding himself to release the other lot and the lands in Maine, upon Peirce’s paying 3497 dollars, with interest, within two years from December 14, 1811 ; that on May 3, 1813, Dorr and Peirce signed a writing as follows : — “ Be it known' to all men, that whereas John Dorr purchased of Joseph Peirce two eeriain lots of land at the westerly part of Boston, as described in a deed on record dated 7 March, 1811 ; also certain other lands and an island, &c. as described in a deed on record dated March 21, 1811 ; and whereas it is the desire of said Peirce to repurchase said lots, land and island ; be it known, that it is now mutually agreed, that upon the payment made to Dorr his heirs :r assigns, of the sum of 3296 dollars 46 cents, m two years from the 27th day of March last, together with interest from said day, which said Peirce hereby agrees to do, and also to pay any further sum that may then be due to said Dorr, the latter hereby agrees to quitclaim to him said Peirce, his heirs or assigns, all the said lots, land and island, &c. And to facilitate the accomplishment of this agreement, said Dorr agrees to quitclaim in like manner either or all said lots, land and island whenever, before the two years before named have elapsed, a fair price can be obtained therefor, and to apply the proceeds, so far as the same will go, to the payment of the aforesaid sum or sums and interest on the same. And should any money remain in said Dorr’s hands thereafter, the same shall be paid to said Peirce ; ” that the two notes signed by Dorr on the 2d of April and 4th of October, 1811, were thereupon delivered by Peirce to Dorr ; that prior to the execution of this writing and the giving up of these notes, Dorr exhibited a statement of the account between him and Peirce (which is set forth, and which includes these notes) ; that by force of the writings and statements of Dorr set forth in the bill, he held the lands in Boston and Maine in trust eventually for the benefit of Peirce, for the purpose of selling the same and applying the proceeds in satisfaction of the debt due to himself, and paying over the surplus, if any, to Peirce ; that Dorr continued to hold the lands, though solicited by Peirce to dispose of them", they being, as Dorr knew, the only fund out of which the debt could be paid, and that Peirce, despairing at last of obtaining justice, wrote and signed, on the 1st of January, 1826, a declaration (which is made a part of the bill) in which he states, that having involved himself in debt by indorsing certain notes, he borrowed 3000 dollars of Dorr, for the purpose of taking up his indorsements, and proposed to mortgage to Dorr, for his security, certain lands in Maine, but that being advised by counsel that a mortgage would not be safe, since he might be considered as thereby secreting his property from creditors, he made an absolute deed as the safer course, and for no other reason, as Dorr must have known ; that in April and October, 1811, he returned the 3000 dollars to Dorr in the identical bank bills which he had received from him, and he expected the transaction to be cancelled ; but that Dorr refused to cancel it, saying it had better stand till the whole was settled ; that this transaction stands alone, unconnected with any other ; that he could not comprehend the object of Dorr’s offering him the two conditional notes, after he had received back the whole of the consideration money ; that he was not satisfied to have it stand so, as he wanted to sell the land ; that Dorr said he could sell the land as well as Peirce, that the conveyance was never considered to operate as a mortgage, that he had bought the land of Peirce ; that he (Peirce) had tried to effect an acknowledgment of Dorr’s having received back the money with which he held up the idea of his. having bought the land ; and Peirce suggests that the communications, between them on the subject may amount to a mortgage ; that Peirce died January 1, 1828, having made a will, and that letters testamentary were granted to the plaintiff in February ; that on the 19th of April the plaintiff required Dorr to render an account of his trust and to perform the same according to the true meaning and intent thereof, more especially to sell the lands in Boston and apply the proceeds to his debt; objecting however to the allowance of interest after a reasonable time from the original conveyance had elapsed, in which he might have effected sales ; but that he has neglected to do either.</p> <p>The prayer of the bill is, that the defendant may be held to render an account of his trust and make such conveyances to the plaintiff as he shall be entitled to have ; and also for general relief.</p> <p>To the foregoing bill the defendant demurred, assigning for cause of demurrer, that this Court has no jurisdiction in equity to enforce the specific performance of contracts in writing, except by virtue of St. 1817, c. 87, which applies only to con- ‘ tracts made since the passing of the statute ; that the plaintiff claims the specific performance of a contract which he alleges was made on May 3, 1813 ; and that except that contract, there is nothing set forth in the bill which will entitle the plaintiff to relief in a court of equity.</p>

<p>Assumpsit by the payee against the maker of a promissory note, dated July 12, 1819, for 350 dollars, payable on demand. The defendant pleaded non assumpsit infra sex annos. The plaintiff replied that the note was made and signed by Dunham at the time and place when, &c. “ in the presence of one witness, who then and there attested the same,” The defendant took issue on this allegation.</p> <p>At the trial, before Wilde J., G. E. Head testified, that he wrote the note declared on, and that it was signed by the defendant on the day of the date in Head’s office, he then being attorney for the plaintiff. Head did not know whether Dun-ham read the note before signing it, but presumed that he did. The note, before Dunham signed it, had the word “ Witness ” written on it in the place where witnesses usually sign their names, and with the intention of Head to sign it as a witness ; though nothing was said to Dunham about the note’s being to be witnessed. There was much conversation at the time between Dunham and Head, which withdrew Head’s attention from witnessing the note while Dunham was present, and he did not subscribe his name as a witness in Dunham’s presence. In two or three hours after, Head went to an insurance office, to deliver the plaintiff the note. When he handed it to the plaintiff, the plaintiff observed that it was not witnessed, and that he should like to have it witnessed. Head immediately wrote his name as a subscribing witness, Dunham not being present and having no knowledge of this fact.</p> <p>The judge, upon this evidence, ordered a nonsuit, subject to the opinion of the whole Court.</p>

Assumpsit on two promissory notes dated October 7, 1826, made by Hugh Hill, payable, one in three months, the other in four months, to Hugh M‘Kibbin & Co. of New York, oi order. The notes were indorsed by the defendant to the plaintiff. They were lodged in the Eagle bank in Providence for collection, and were sent by that bank to the Franklin bank in New York for collection, and were returned to the Eagle bank, protested for non-payment, and were taken up by the plaintiff.

<p>Assumpsit. The declaration alleged, that the defendant, by his memorandum in writing, promised to convey to the plaintiff a certain farm for the sum of 1940 dollars, and averred a breach.</p> <p>At the trial, before Wilde J., the plaintiff, in support of his claim, offered in evidence the following memorandum, “ Boston, January 4, 1827. It is agreed and understood that William S. Bird is to have the refusal of a certain farm situated in Ashby commonly called the Waters farm which farm was bought by me for the sum of 1940 dollars upon his complying with certain conditions from the first day of April next which conditions the aforesaid William S. Bird has complied with Richard Richardson.”</p> <p>The defendant objected to the admission of this evidence as not supporting the declaration, and contended that the memorandum did not prove that the defendant agreed to convey the farm to the plaintiff for the sum of 1940 dollars, but only that he bought it for that sum. This objection was sustained by the judge, and a nonsuit was ordered. Whereupon the plaintiff moved for a new trial.</p>

This was a bill in equity brought by Gibbens as administrator of Benjamin Porter.

<p>Assumpsit upon a warranty in the sale of a seroon (or leather bag) of indigo. On one side of the seroon was cut a small triangular hole, at which the purchaser might draw out a specimen, and at the sale the plaintiff examined the article in this mode. In the bill of parcels the article was described as “ one seroon of indigo.” The greater part of the contents of the seroon proved to be a substance resembling burnt clay, colored so as to look like indigo, and at the end of the seroon there were from seven to ten large pieces of leather and bones ; and what indigo there was in the seroon was of an inferior kind and not like the specimen. The defendant was innocent of the fraud.</p>

Scire Facias By the answers of Cordis filed in the original action, if appears, that at the time of the service of the original writ upon him as trustee, in 1825, he had an open account with Williams, who was a banker in London, England, upon which he admits he was indebted to Williams in the sum of 6731. 8s. 4d. sterling, equal, at the par of exchange, to 2992 dollars and 96 cents.

<p>in an action by the assignee of a mortgage to recover possession of the mortgaged premises, against a disseisor, the affidavit of his assignor is not admissible in evidence to prove the loss of the mortgage deed, for the assignor might be a witness in the case.</p> <p>fn such an action, if diligent search and inquiry are made for the mortgage deed, by the demandant, and it cannot be found, he may give a copy from the registry in evidence.</p> <p>If the mortgage deed appears from the registered copy to be an indenture interchangeably signed and sealed, and the part belonging to the mortgagee is proved to be lost, in order to make the copy admissible, due diligence must be shown to ascertain whether any counterpart exists, and if it does, to obtain it to be used in the trial.</p> <p>Where land is mortgaged, a person who by taking possession of it disseises the mortgager, disseises also the mortgagee, and so long as the disseisor is in possession, the deed of the mortgagee will not pass his, the mortgagee’s, interest in the land.</p> <p>Where a person, without title, took possession of land which was under mortgage, and built on parts of it a carpenter’s shop and a blacksmith’s shop, and the tenants of the carpenter’s shop occasionally used parts of the lot adjacent to their -«hop, to spread their boards on, and the tenants of the blacksmith’s shop used other parts of the lot to run carriages on, and put tires on wheels, it was held, that this was a disseisin of the mortgagee only for the part of the land covered by the shops.</p>

<p>H having in his hands goods of N for sale, on which H had made advances, N requested him to pay out of the proceeds of the goods a bill drawn by N which had been dishonored, and to inform S & Co., who had accepted the bill for the hon- or of an indorser, of this request. H accordingly informed S & Co. of this request, and promised them verbally to pay the amount of the bill as soon as he should be in funds from the proceeds of the property. H having been summoned in foreign attachment, as the trustee of N, it was held, that S & Co. had acquired a claim against H for the funds in his hands, and that he was therefore chargeable as trustee of N, only for the balance in his hands after deducting his advances and the amount of the bill.</p>

This was a bill to redeem an undivided moiety of a bathing-house situated on the northeasterly side of canal bridge. The house is erected on piers driven into the mud below low-water mark in Charles river. The bill alleges that the moiety in question was mortgaged by one Farnum to the defendant, and that the equity of redemption was taken and sold on execution and purchased by the plaintiff.

<p>The demandant, being owner of a parcel of land with a dwellinghouse thereon, adjoining on the north to land with a dwellinghouse thereon belonging to his sister, facing to the south, conveys to the tenant’s grantor in fee simple, “ provided, however, this conveyance is upon the condition, that no windows shall be placed in the north wall of the house aforesaid, or of any house to be erected on the premises, within thirty years from the date hereof.” After the sister has conveyed her land to a stranger, the tenant mortgages by a deed reciting the foregoing provision, and afterward, while remaining in possession, makes windows in the north wall. Heldt that the above clause was a condition, and not a covenant ; that it was a valid condition ; and that such breach of it worked a forfeiture of the estate, and gave the demandant a right to re-enter.</p>

<p>Bill In equity. The plaintiffs allege, that by indentures doled ¡September 30, 1817, between Elizabeth F. Hildreth, one of the plaintiffs, then sole, of the one part, and her father, Ephraim Eliot, now deceased, of the other part, it was recited, that she was the owner of certain real and personal estate and was desirous of securing the same, in the event of her marriage (which, as the plaintiffs aver, was then about to take place and afterward did take place with Daniel Dunton, who has since died), to her sole use and benefit: That for that purpose it was agreed, that the property “ should be, and the same was thereby, granted unto said Ephraim to be held in trust by him, his heirs and assigns forever, for the separate use and benefit of -«id Elizabeth and her heirs, notwithstanding the coverture ; that is to say, that the same should be so held by said Ephraim and by any other trustee who might be appointed in the manner therein provided, without being liable to the debts, incumbrances or control of any husband she might have during the" existence of the trust; with powers of leasing and investing, &c. and that he should pay over all rents and income and also such portion of the principal as he, said Ephraim, should judge necessary for her convenience and support, unto said Elizabeth or to such person as she should in writing, without the intervention of any husband, appoint, for and during her natural life, that is to say, during the term for which said trust should continue, &c. ; and after the decease of said Elizabeth, the residue and remainder &c. to convey unto such child or children, his and their heirs and assigns forever, as she should leave ; and happening the death of said Ephraim, his heirs &c. should as soon as practicable make conveyances to transfer the real and personal estate unto such person as should be appointed trustee by the judge of probate for Suffolk county for the time being who was in that event authorized by the indentures to make the appointment : That Ephraim, the trustee, took possession of the property and continued to manage the same until his death : That after the death of Dunton, the plaintiffs intermarried, viz. on August 4, 1824, and have issue, one son : That Ephraim, the trustee, died and left nine children, who are the plaintiff Elizabeth, and the defendants : That he made a will and appointed Ephraim L. executor, who, as well as the other defendants, declines making an assignment of the trust property until a trustee shall be appointed, and that notwithstanding the power given by the indenture to the judge of probate to nominate a trustee, he has declined so to do : That the indentures were executed at th ¡ instance and intreaty of Ephraim the trustee, to guard against Dunton’s intermeddling with or wasting the property, and that all the purposes for which the trust was created have been satisfied, and that the trust ought to be revoked and the property ought to be restored to Elizabeth in her absolute right, to be held by her and her heirs.</p> <p>The bill prays that the defendants may be decreed to convey and deliver over the property to Elizabeth ; or if the trust ought to be continued during her natural life, it asks for the appointment of a trustee.</p> <p>The defendants, in their answer, state, that soon after the death of Ephraim the trustee, the executor presented a petition to the judge of probate, praying him to appoint a new trustee, in pursuance of the provisions of the indenture, but that the judge refused, on the ground that he had no jurisdiction in the matter. They insist that the trust is to continue during the natural life of Elizabeth, and they say that it is expressly provided in the indenture, that any trustee who shall be appointed, shall give bonds with sufficient sureties to the judge of probate for the faithful execution of the trust. They offer to convey and pay over the trust property, and they pray the Court to preserve the trust, and to appoint a new trustee, and to order that he give bonds in the mode provided in the indenturs.</p>

<p>The answers of Ebenezer Chadwick and John A. Bacon, the supposed trustees, disclosed the following facts. By an indenture, dated December 19th, 1826, made between the defendants, Cutter and Brigham, then merchants under the firm of Henry Cutter & Co., of die first part, Chadwick and Bacon of the second part, and certain creditors of the defendants of the third part, the defendants assigned to Chadwick and Bacon goods and merchandise, book debts, promissory notes, and other choses in action, to a large amount, for the benefit of the defendants’ creditors. Certain debts enumerated in one schedule were to be first paid in full out of the proceeds of the assigned property ; and if any surplus was left, it was to be appropriated pro rata to the payment of the debts enumerated in another schedule. Five months were allowed for creditors to become parties to the instrument; and all who became parties, discharged Cutter & Co. from their demands. On the day before the writ was served on the trustees, which was done December 20, 1826, the preferred creditors of the defendants, the aggregate amount of whose claims was 43,798 dollars, had become parties to the assignment. After the service of the writ, other creditors became parties to the assignment ; and the total amount due to all the creditors who became parties, was 61,459 dollars. All the goods and merchandise assigned were sold by the trustees, after the service of the writ, and produced the sum of 20,331 dollars,, which the trustees distributed ratably among the preferred creditors. Before their final answer, the trustees had received from the sale of the goods, and collected from the book debts, notes and other choses in action, the amount of 44,723 dollars; and they estimated the amount still to be received under the assignment, at about 10,000 dollars. At the time of their last answer, the trustees had in their hands 925 dollars more than sufficient to pay all the preferred debts, out of which sum were to be paid all the costs and charges incident to the assignment.</p> <p>The case was argued, first orally, at March term 1828, and afterward in writing, by Hubbard and Fletcher, for the plaintiff, and Bassett, for the trustees.</p>

<p>This was an action of waste. The declaration alleged, that Solomon Sackett died seised in fee simple of several parcels of land described, containing about 114 acres ; that he left two brothers (Erastus and Joseph, the plaintiffs) and three sisters (Penelope, Candace and Terza) his heirs at law ; that he devised to the defendant “ the one half of his real estate, being the estate above described, and that she should have the use and improvement of the other half of his real estate, being the real estate described as aforesaid, during her life, and that at ner decease, he devised the residue of his real estate, being the half last above mentioned, to be divided in equal shares among his brothers and sisters and their respective heirs ; that by virtue of the said devise, the plaintiffs, as heirs of the said Solomon, became seised and entitled to two equal shares, being two fifth parts of the moiety of the said real estate, and that the said two equal shares will revert to them, to be by them held as of their own inheritance and in fee simple at the death of the said Elizabeth, which real estate is now held by them as tenants in common and that the defendant had caused or permitted certain waste, to the prejudice, loss and disinherison of the plaintiffs.</p> <p>The tenant pleaded that she had not made any waste.</p> <p>At May term 1828, before Putnam J., the defendant objected that the plaintiffs could not maintain this action, they being the owners of only two undivided fifth parts of the reversion, and contended that all the reversioners should join, to recover the damages ; whereupon a nonsuit was ordered, subject to the opinion of the whole Court.</p> <p>The case was argued at September term 1828, and afterward in writing.</p> <p>Gold and Porter relied on St. 1785, c. 62, § 3, which provides, that “ in actions of waste, ejectment or other real actions, where possession of the inheritance alleged to have descended is the object of the suit, the heirs may all, or any two or more of them, join therein,” &c. The plaintiffs claim as heirs, not as devisees. Parsons v. Winslow, 6 Mass. R. 178 ; Whitney v. Whitney, 14 Mass. R. 88.</p>

<p>Where an agreement, signed by three persons, was afterward altered by the consent of two of them, by adding seals to the names of the signers, and interlining the words “jointly and severallyand was afterward delivered by those two, it was held, that the alteration did not vitiate the instrument with regard to those two, but that they were bound by the instrument in its altered form.</p> <p>A and B having been partners, A gave an obligation to B to indemnify B against a note on which C was promisor, C having become so merely as surety for A and B j C afterwards advanced money to B, with which B paid the note. Heldt that A was liable to B on the obligation, for the amount of the note paid by B.</p>

Trespass qu. el. fr. A verdict was found in favor of the-plaintiff. The parties were in possession of two adjoining lots of land, under different titles. The dividing line', which was first laid out in 1734, was a straight line. A crooked fence was erected more than fifty-eight years before the trial, and included on the Burghardt side a part of the other lot; but the owners oí the two lots occupied respectively up to this fence for more than thirty years.

This was trespass qu. cl. fregit for entering the plaintiffs’ dose and pulling up and tearing away his dam across Williams’s River. The defendant pleaded, 1. the general issue, which was joined : 2. that the locus in quo, which he described, was his soil and freehold, being on the west side of the river.

<p>A mortgagee of personal property mortgaged to secure a debt, may maintain trespass against a stranger, who lakes it from the possession of the moitgager, although the trespass be committed before the debt becomes due A mortgagee of a building standing, not on land of the mortgager, but on that of a third person, may maintain trespass against a stranger who pulls down and car* ries away the building, the building being unoccupied at the time of the trespass, and the mortgagee not having taken actual possession.</p> <p>Trespass may be maintained against a person who carries away the materials of a building, which has been pulled down by a trespasser, though the person carrying them away was not engaged in the pulling down.</p>

<p>If A signs his name on a paper in blank, and by paroi authorizes B to write an agreement of a certain description over his name, he will be bound by such agreement when written over his name by B. But if B adds a seal to the name of A, and delivers the instrument as A’s deed, A will not be bound.</p>

Assumpsit on the following contract, dated October 1, 1824 : — “For value received I promise to pay Joshua West or order five hundred dollars as soon as it can be collected on Allen Smith’s note due 1 February, 1826, and interest. John Chamberlin.” One count upon this contract alleged that the money had been collected of Smith ; another count was for money had and received.

This was a petition for partition of certain land, whereof the petitioners alleged themselves to be seised as tenants in common, namely, Samuel Liscomb and Abba his wife, in her right, of one twentieth part, and Charles A. Thomas, the other petitioner, of one twentieth part.

<p>Trespass quare clausum fregit for breaking and entering several closes of the plaintiff, and carrying away marble from a quarry in one of the closes. The general issue was pleaded ; also several pleas in bar, in which a right to enter upon the closes and do the several acts complained of, is averred and claimed under title derived from a sale on execution against one Eli Garlick.</p> <p>At the trial, before Parker C-. J., the following evidence was produced. On June 24, 1820, Garlick, who was then owner of the closes described in the writ, executed an agreement with William Middlebrook, David Dell, and Stephen Mead and sons, by which they were to have the use of the quarry for ten' years, with the right of way through the closes for the purpose of going to the quarry and carrying away the marble ; and the parties entered into and occupied the closes pursuant to the agreement. This agreement was not recorded. On September 14, 1822, Garlick, for a valuable consideration, conveyed the same closes to Farnum, the plaintiff, by a deed which contains the following clause; — “reserving also the use of the quarry on said Burhans lot until the expiration of the lease I have heretofore made to Stephen Mead and others,” (meaning the agreement before referred to.) This agreement or lease was cancelled on October 5, 1822, by consent of the parties to it, and the names and seals torn off</p> <p>Garlick continued to use the quarry occasionally after the cancelling of the lease, under the reservation in the deed ; and on November 26, 1826, his supposed right in the same was taken on execution and sold in due form to the defendant; and the acts complained of were the passing through the closes to the quarry mentioned in the reservation, for the purpose of taking marble therefrom, and repassing through the same with loads of the marble to a mill where it was to be wrought.</p> <p>It was insisted by the plaintiff’s counsel, that even if the defendant had any right to enter on and pass over the land and take stone from the quarry, yet that he pursued a course different from the route which had been usual. But there was evidence that the plaintiff had fenced out the old road, and that the route taken was that which would do the least injury to the plaintiff’s land.</p> <p>A verdict was taken for the plaintiff; which was to be set aside, and the plaintiff nonsuited, if a right or interest remained in Garlick at the time of the sale on execution, which passed to the defendant; otherwise judgment was to be rendered -on the verdict.</p>

<p>A judgment in favor oí the judge of probate in a suit upon a probate bond, broug* in his name, for the benefit of a legatee, against an executor and his sureties, may be set off against a judgment recovered by the executor in his individual capacity against the legatee.</p> <p>Court, in their discretion, refused to set off the costs in such actions.</p>

<p>A notice of a meeting of the commissioners of highways for the purpose of viewing the route of a highway, signed “ By order of the commissioners, A. B., chairman,” was held to be sufficient, notwithstanding the objection that it did not appear that the notice was issued at a meeting of three or more of the commissioners.</p> <p>Where, upon a petition for the alteration of a (< county road ” (as it was called, though in fact it was a town road) or .the location of a new road, between two other county roads, the commissioners of highways laid out a new road between the termini, it was held, that their describing the new road as an alteration, did not vitiate their proceedings.</p> <p>Where the commissioners, after notice to all persons interested, viewed the route for a highway, and adjourned to a certain time and place for the purpose of locating the way and assessing the damages to individuals, it was held, that it was not necessary to give notice of the time and place so appointed.</p>

<p>’rite defendant, in 1799, conveyed to the plaintiff land in New York, with covenants of warranty and freedom from incumbrances. A judgment had been recovered in 1786 against the defendant’s grantor, which constituted a lien on the land, and in 1801, upon a scire facias to revive the judgment, an execution was issued, by virtue of which the land was sold by the sheriff and a deed given by him to the purchaser. Held, that as the plaintiff’s title was entirely defeated, there was a breach of the covenant against incumbrances, and that the damages were the amount of the consideration and interest.</p> <p>The testimony of witnesses, that they were in possession of the land claiming title under a grantee of such purchaser, without proof of a conveyance by deed from such grantee, was held not to be sufficient evidence of an actual eviction under a paramount title, to authorize the plaintiff to recover on the covenant of warranty</p>

<p>If exceptions are unseasonably filed to an interlocutory order of the Common Fleas in an action in which the party excepting wishes to have a trial, he should enter his exceptions in this Court, where they will be dismissed, and then the action may be brought forward on the docket of the Common Pleas.</p>

Indictment for burglary. The evidence as to breaking was, that in the evening of May 22, the witness fastened the outer door of the dwellinghouse by turning a button down upon the latch, and that about daybreak in the morning he found the door open, and also that the network of the buttery window had been cut away and torn down.

Trespass quart clausum fregit for breaking down and destroying part of a mill-dam belonging to the plaintiffs. The general issue was pleaded and joined. Also, a former suit and recovery for the same cause of action. The plaintiffs replied that the former suit was not for the same cause of action ; and thereupon issue was joined.

<p>On a petition for a review in this case, which was a writ ol entry, notice was ordered to be served on the demandant’s attorney of record. The demandant was only a nominal party, and the parties in interest (three in number) were present when the order was passed. Such notice being now objected to, the Court said that as no particular mode of notice was prescribed in the statute respecting reviews, if the party interested had substantial notice, they saw no reason why he should 'not answer.</p> <p>Upon the hearing of the petition, the counsel for the demandant produced one of the jurors to testify that a misapprehension at the trial, in regard to a certain line, had no influence upon the verdict; and to show that such evidence was admissible, they cited Ex parte Caykendoll, 6 Cowen, 53; The People v. Columbia C. P. 1 Wendell, 297.</p>

<p>By a bill of lading expressing that goods are to be carried from one port to another, a direct voyage is primd facie intended ; but this presumption may be controlled by a usage to stop at intermediate ports, or by personal knowledge on the part of the shipper, that such a course is to be pursued.</p>

<p>This was assumpsit upon the following contract, dated April 13, 1825, viz. — “ Whereas Horace Smith heretofore made three several notes to Alpheus Smith for 2000 dollars each, payable in machine cards, one of which notes is now in the hands of Austin Flint of Leicester, and on which said Flint has a lien for the payment of a debt to H. G. Henshaw, of not more than 500 dollars, —-‘and whereas the balance of said note, after paying said Henshaw’s debt, has been this day assigned to Joseph Carew of Springfield, a creditor of said Alpheus Smith, — I do hereby warrant and guaranty to said Carew the payment of said note according to its tenor, after deducting the claim o<* said H. G. Henshaw. which shall not exceed 500 dollars : — The said Carew agreeing to take any sum not less than 500 dollars, upon reasonable notice, towards the payment of said note. Nathaniel P. Denny.”</p> <p>At the time of the execution of this contract, Alpheus Smith was indebted to the plaintiff in a large sum of money, and Horace Smith was indebted to Alpheus upon three promissory notes, one of which, dated January 21, 1824, was for the sum of 2000 dollars, payable in good merchantable machine cards at cash price, in three years from the date, with interest annually. By an instrument under seal, dated April 13, 1825, Denny, as guardian of Alpheus, assigned to the plaintiff “ the balance which may be due ” on this note, “ after deducting what may be due to Horatio G. Henshaw from said Alpheus, not exceeding 500 dollars, which said note is now in the hands of Austin Flint, and is there to remain until said Henshaw is paid.” The plaintiff at the same time executed an agreement, ui which it is stated, that the amount due to him could not then be ascertained, and he agrees, in case the property assigned should exceed the debt, to pay over the balance to the defendant, “ it being understood that the cards received by virtue of the assignment shall be sold as soon as may be, and at the best advantage, and the proceeds shall be applied first to the payment of the debt to H. G. Henshaw, and the residue to the discharge of said Carew’s claims.”</p> <p>There was an indorsement upon the note, under date of January 27, 1824, of a payment of 286 dollars 27 cents.</p> <p>The demand of Henshaw against Alpheus Smith was on a promissory note, dated January 31,1824, on which Henshaw recovered a judgment in March, 1826, for 569 dollars, being the principal, interest and costs. In April, 1826, Horace Smith, at the request of Henshaw, engaged to make the cards in about a month, to pay Henshaw the amount of his judgment; and Henshaw stated that he should write to Carew for his consent; which if he did not obtain, he should wish the cards to be delivered and he should take them on execution, and have them sold on execution to satisfy his judgment. Accordingly on May 10, 1826, Horace Smith had prepared cards for delivery, and two persons were called in to appraise them. A quantity appraised at 1308 dollars 50 cents, was sold by auction by a deputy-sheriff, under the execution, the proceeds of which were no more than sufficient to satisfy the execution, and the sum of 1308 dollars 50 cents was then indorsed by Flint as so much paid upon the note. It appeared that the plaintiff had notice of the intention to turn out the cards and to sell them on execution, Washburn, the attorney of Henshaw, having written to Packard, agent of Carew, a letter dated March 21, 1826, in which he says, that Henshaw is in want of his money, and that Horace Smith is ready to pay the cards due on me note in Flint’s hands; and Washburn asks, whether Carevv “ will take all the cards and pay Henshaw’s debt, or let Hen shaw take enough to pay himself and leave the rest for Carewl Have you or Carevv any objection to Horace’s paying Henshavv, within a fortnight, cards enough to satisfy his debt ? If either of you have any thing to say on the subject, I wish you to write me soon ; as the cards will be ready for sale in a fortnight, and Henshaw has judgment on his note, and will sell them on execution when turned out to him.” But there was no evidence that Carew consented to this proposition, otherwise than In not answering the letter. He lived more than thirty miles from Leicester, where these transactions took place. When the note guarantied became due, the plaintiff called on Horace Smith for the cards, and Horace showed him cards ready for delivery. '1 he plaintiff asked if those were all ; and was informed that they were. These cards had before been appraised by two persons, having been examined by a person who accompanied the plaintiff for that purpose, and who stated that they were merchantable according to the contract. This person looked at the exterior of the bundles, without opening 01 s'parating them. They were then delivered to the plaintiff at the appraisement. The balance of the note thus paid was about 670 dollars. The defendant was present at this time. The plaintiff, being asked by Flint if he should give up the note to Horace Smith, turned to the defendant and asked him. The defendant said he had nothing to do with it. Where pan the plaintiff said it might be given up '; and thereupon it was given up by Flint as paid. The cards were afterwards transferred to Springfield, where they were received by an agent of the plaintiff. There was evidence tending to prove that they were not of a merchantable quality, and were worth much less than the sum at which they were opp aised, being packed so as to deceive ; and there was evidence to contradict this ; but the judge who tried the cause being of opinion that the acceptance of them by the plaintiff, upon such examination as took place, was a payment pro tanto, as it respected the defendant’s guaranty, and that if any fraud was practised, the defendant was not answerable for it, this evidence was considered irrelevant and was rejected.</p> <p>The plaintiff insisted that the guaranty covered the whole of the note, except the claim of Henshaw to the amount of 500 dollars, without regard to the sum indorsed upon the note, paid before entering into the guaranty, and offered evidence to show that he did not know of this indorsement. But the judge was of opinion, that the evidence was irrelevant, whether the parties were or were not ignorant of the indorsement, unless the defendant knew and concealed the fact from the plaintiff; of which there was no evidence. The judge was of opinion, that the guaranty covered the sum due on the note at the time when the contract was entered into, and no more.</p> <p>The defendant insisted that the legal effect of his contract of guaranty was only to the extent of what should be due on the note, after deducting the appraised value of the cards taken to satisfy the debt of Henshaw and costs of suit and of sale. viz. 1308 dollars 50 cents, and also deducting the sum previ ously indorsed ; so that the plaintiff having received cards for the balance according to this computation, the guaranty was satisfied and discharged. The judge was of opinion, that no further allowance could be made on account of Henshaw’s debt, than 500 dollars.</p> <p>The plaintiff insisted, that by reason of the judgment and execution, and the proceedings under them, Henshaw had lost his lien on the note, and therefore that the defendant was liable for the whole amount of the note upon his guaranty ; but this was overruled.</p> <p>The question as to the correctness of all these opinions was reserved for the consideration of the whole Court.</p>

<p>This was an. indictment upon the second section of St. 1814, c. 175.</p> <p>The first section provides, “ that if any person, not being authorized by the board of health, or the selectmen of any town in this Commonwealth, shall knowingly and wilfully dig up, remove or carry away, or aid or assist in digging up, removing or carrying away any human body, or the remains thereof,” such person shall be imprisoned, &c.</p> <p>The second section provides, “ that if any person or persons knowingly and wilfully receive, conceal or dispose of any human body, or the remains thereof, which shall have been dug up,- removed or carried axvay in the manner described in the first section of this act, he or they shall be subject to the same forfeitures and penalties,” &c.</p> <p>The third section is, “ that all fines, accruing under this act, shall enure, one half to the informer, and one half to the town in which the offence is committed.”</p> <p>At the trial, which was before Parker C. J., it was proved by the government, that the defendant, on the night of November 17, 1828, went with a horse and wagon towards the com mon b'.irying-ground in Springfield, having a box in-the wagon, which was procured by him ; that one Perkins and one Moore went in the wagon with him and acted under bis direction ; that the dead body of the person mentioned in the indictment, which had been previously taken out of the grave in which it had been buried, the grave having been dug up for that pur pose, was taken from the ground where it had been laid neai the burying-place and covered over with leaves, by Moore, Perkins remaining in the wagon taking care of the horse, and was put into the box and the box covered and locked ; and that the wagon was then driven over the bridge, where it had been agreed by the defendant he would meet Perkins for the purpose of conveying the body to Pittsfield. There was no proof that the defendant was at the graveyard at the time when the body was taken and put into the box, or that he assisted in that act; but it was fully proved that Moore and Perkins acted under his authority and by his direction.</p> <p>It was objected by the defendant, that the evidence proved that the body was dug up and removed by him, as much as that, he concealed or disposed of it; so that the offence was under the first section of the statute : And further, that the facts proved did not show such an offence as is described in the second section. Both of these objections were overruled. The defendant, being convicted, moved for a new trial.</p> <p>The defendant also moved in arrest of judgment, because the indictment did not allege that the disinterment was not authorized “ by the board of health, or the selectmen of any town in this Commonwealth.” The allegation was only, that it was not authorized by the board of health or selectmen of the town of Springfield.</p>

Assumpsit to recover a sum of money expended by ihe plaintiffs in the support'of Noah Kentfield, a pauper.

This was an action of slander. The declaration containea five counts. The jury found the defendant guilty as to the first, third and fifth. The defendant moved in arrest of judgment on the ground of the insufficiency of the three counts above specified.

Trespass quare clausum fregit. The plaintiff claimed a title by virtue of a levy upon the land as belonging to Andrew Hyde, for a debt due before January 6, 1826. The defendant claimed the land under a deed from Hyde, dated on that day ; and the question was, whether this deed was made bond fide and for a valuable consideration. The defendant proved that a part of the consideration was a debt due to him from Hyde, of about 187 dollars.

<p>A notice by overseers of the poor, that expenses had been incurred for the support of “the child of Miss H. W., the daughter of T. W., who are inhabitants of the town of W,” was held sufficient to sustain assumpsit against such town.</p>

<p>Assumpsit upon a promissory note made by the defendant, payable to the plaintiff or order.</p> <p>At the trial, before Parker C. J., it appeared, that the note was used at the trial in the Common Pleas, but the case was taken from the jury and brought up by demurrer. It having been suggested by the plaintiff’s counsel, that the note had not been seen by any one since the trial in the Common Pleas, the judge admitted the affidavit of the plaintiff to show that it was not in his possession, and that he did not know where it was, and then allowed him to give such evidence as he could of the loss.</p> <p>It appeared from the evidence of the clerk of the court and °f counsel in the case, that the note was read to the jury at the trial in the Common Pleas, that it agreed with the description of it in the writ, that it was not then suggested that there was any variance between the note and the declaration, and that the defence made was founded on the existence of the note. It also appeared from the testimony of the plaintiff’s counsel, that they had not seen the note since the trial in the Common Pleas.</p> <p>Isaac B. Barber, the attorney who filled the writ, testified, that he drew the writ from the original note then in his possession, that he brought it with him to court, where it was used on the trial in the Common Pleas, that he had searched among his papers and could not find it, and that he had not seen it since the trial. After he had given this evidence, it was objected that he was not a competent witness, having indorsed the writ. The judge, however, considered the evidence as proper for the Court to act on, in determining whether the plaintiff should be allowed to go to the jury without the production of the note.</p> <p>No defence being made to the note, the judge informed the counsel, that he should instruct the jury that on this evidence they ought to return a verdict for the plaintiff, and that judg ment would be rendered thereon for the plaintiff on his giving a sufficient bond of indemnity to save the defendant harmless from any future claim on the note. Whereupon the defendant consented to be defaulted, reserving for the whole Court the-question, whether the evidence was sufficient and conclusive, without any thing to contradict it, to prove the loss of the note, and to entitle the plaintiff to recover without producing it. And judgment was to be rendered for the plaintiff on bis filing the bond, if this proceeding is right; otherwise the default was to be taken off and a new trial granted.</p>

<p>Assumpsit upon the following contract.</p> <p>“I the subscriber place my son David Townsend with Phelps & Clark to learn the art of printing, on these conditions ;— 1st. The said David is to stay three weeks on trial; then, if both parties are suited, he is to stay till he is twenty-one years of age. In consideration of his being so old, I agree further, that I will pay said Phelps & Clark the amount of six months’ work at 4 dollars per week, unless said David continues in their employ six months after he is twenty-one years of age. Greenfield, August 31, 1827. William Townsend. (Said David was eighteen'years of age the 18th day of June, 1827.)”</p> <p>The declaration averred that the plaintiffs received David as an apprentice on trial for three weeks, and afterwards, both parties being suited, they employed and instructed him as an apprentice, treating him like other apprentices, from August 31st, 1827 to February 8th, 1828, on which day he left their service without any cause ; and that he refuses to stay in theii service till he is twenty-one.</p> <p>At the trial, before Parker C. J., the evidence proved the allegations in the first count; and it was admitted that the contract was in the handwriting of one of the plaintiffs, and that the defendant had no counterpart. But the judge was of opinion, that the written contract was not binding on the de- ' fendant, on the ground that there being no provision in t for the benefit of the plaintiff and his son, it was without consid«ration. A nonsuit was ordered, subject to the opinion of the whole Court. _</p>

This was an appeal from a decree of the judge of probate of Franklin county, allowing the first account of Pliny Arms, the appellee, as administrator on the estate of David Dickinson. The appellee was appointed administrator in 1823. The estate was solvent.

Trespass for talcing a quantity of hay, which the plaintiff attached as a deputy sheriff, on a writ against Norman Smith.

<p>Where a son made a bond to his father, reciting that the father had conveyed certain land to the son, and conditioned, among other tilings, to pay all the father’s debts existing at the time of making the bond, and on the decease of tile father his estate was declared, and eventually proved, to be insolvent ; and the holder of a note of tlie father, dated prior to tile bond, presented the same to the commissioners, by whom it was rejected as a debt which the son was bound to pay, and the holder of the note neglected to prosecute the same against the estate by a suit according to the provisions of the statute in such case ; it was keldy that the administrator might maintain a suit on the bond for the benefit of tlie holder of the note.</p>

<p>Where a town-house was erected on land of the town under a contract with the builder that the town should occupy part of it at a certain rent, and should have the right to purchase the house at an appraised value, it was held, that the house was the personal property of the builder, but that an attachment of it in the man net* in which real estate is attached, no actual possession being taken by the officer, was valid.</p>

<p>It appeared from the answers of Russel], the trustee, that on February 7, 1820, Allen, the defendant, made a deed of his farm to Russell, and Russell gave Allen a note for 1500 dollars on interest. The note was given to enable Allen to raise money on it, and the land was intended as security, though the deed was absolute. In the course of the next four months Russell advanced various sums and gave notes to Allen, which were indorsed on the note for 1500 dollars; and on June 5, 1820, paid the balance of the note and took it up. On January 7, 1821, Russell gave Allen a bond to reconvey, if Allen should pay 1600 dollars before March 17 ; this sum was said to be made up of the 1500 and interest. Allen occupied the farm for fourteen months after the deed was given, without paying rent, and afterwards for two years at a rent of 120 dollars 8 year, which was paid to Russell. Russell paid 40 dollars to obtain a release of dower in the farm from a Mrs. Prentiss ; and in 1823 he sold the farm for 2000 dollars on a credit of four years, taking in payment notes of different persons, and the purchaser’s notes for 800 dollars which were secured by mortgage of the farm to Russell. At the time this action was brought, in October, 1828, and at the time of the answer, the notes secured by mortgage, which became due in the spring of 1827, remained unpaid ; and the purchaser had not personal property enough to pay them. Russell had taken no legal measures to compel payment. Russell considered himself as having obtained an absolute and unconditional title to the estate for an adequate consideration ; but if it was to be considered a trust estate, he claimed an allowance for various services and expenses in relation to the business specified in the answers, amounting in the whole to 207 dollars.</p> <p>Russell also held two notes of Allen on interest, one dated October 9, 1820, for 22 dollars, the other, November 13, 1820, for 37 dollars ; and an execution for 122 dollars 59 cents.</p> <p>In the Common Pleas the defendant was defaulted. After Russell had answered, he was adjudged trustee by the court, and by agreement of the parties an auditor was appointed to ascertain with what sum Russell should be charged, his report to be final between the parties. At a subsequent term of the Common Pleas, the auditor having made no report, Russell, by leave of the court, made an additional answer, the plaintiff objecting to its admission. The Common Pleas then adjudged Russell to be trustee ; from which judgment he appealed to this Court.</p>

Assumpsit to recover the amount of expenses incurred by the plaintiffs for the support of Dorothy Marsh, a pauper. The only question made at the trial, which was in the Common Pleas before Williams J., was whether the pauper had a legal settlement in the town of Conway. The pauper was the daughter of Abner Marsh, and derived her settlement from him. Abner, with his family, removed to Conway in March, 1797, and continued to reside there until August, 1823.

Assumpsit. The plaintiff, as a deputy sheriff, attached certain property of Noah Clark on a writ in favor of one Lamb as executor against N. Clark, and delivered it to the defendants, taking from them a receipt in which they promised to redeliver it to the plaintiff upon demand. The present action was founded upon this receipt.

<p>A verdict in this Court may be amended by the judge’s notes, after error brought and joinder in error.</p> <p>Where three counts alleged a promise to the plaintiff as executor and a fourth a promise to the testator, ail being for the same cause of action, and the defendant pleaded to the three first, that the action did not accrue to the plaintiff within six years, and to the fourth, that the action did not accrue to the testator within six years, and the jury found for the pfaintiff upon the first issue, saying nothing about the other, the plaintiff was allowed, after error brought, to amend die verdict by tile judge’s notes, upon payment of costs.</p>

<p>Where the person appointed by a sheriff to take custody of personal property attached, abandons it, and it comes into the possession of an adverse claimant, the lien created by the attachment is lost.</p> <p>A mortgage was made of a factory and certain machinery ee in preparation soon to be placed there,” but no possession of the property was taken at the time, and the mortgager still continued to occupy the factory. The machinery was afterwards attached in the factory, in a suit against the mortgager, and a person at the factory was appointed by the attaching officer to take charge of the machinery attached. This person subsequently absconded, and the mortgagee took possession of the mortgaged property, real and personal, including what had been attached. An execution having issued in the suit in which the attachment was made, the attaching officer took the machinery out of the possession of the mortgagee, and sold it on the execution. Held, that the possession of the machinery taken by the mortgagee perfected his title under the mortgage ; that at the time the officer took the machinery on execution, he had lost the lien created by his attachment; and that the mortgagee might maintain trespass against the officer.</p>

<p>■Assumpsit upon a promissory note, dated on October 9, 1823, for 1000 dollars, payable to the Oxford bank in sixty days and grace.</p> <p>On a case stated it appeared, that the note was made by Alpheus Smith and James Anderton as principal and surety, jointly and severally, and was offered at the bank for discount; but the bank refused to discount it, and the cashier wrote on the back of it the words, “ I guaranty the payment of the within note,” to which Smith procured the signature of the defendant. The note was then discounted at the bank, and the amount thereof was paid to Smith. A payment of 250 dollars was made by Smith at the maturity of the note, about the 1st of December, 1823, and no notice of the non-payment of the residue was given to the defendant. The note so remained until October 7, 1824, when an action was commenced upon it against Smith, and one Southgate was summoned as his trustee. Judgment was rendered in that action, in March, 1825, and Southgate paid on the judgment the amount in his hands, being 535 dollars ; and nothing has been paid upon the note or judgment since. 'Smith and Anderton were reputed to be men of property at the time of making the note and so continued until the time of their failures. Smith failed about the 23d of January, 1824, and Anderton in February following, each being possessed of visible and attachable property much exceeding the amount of this note, and which was attached and levied on by their other creditors. Since their failures they have continued insolvent.</p> <p>Smith lived about ten miles from the Oxford bank and in the same village with Haynes, at the date and maturity of the note. Anderton lived between this village and the bank, and about six miles from the bank. .</p> <p>On the 7th oT October, 1824, the directors of the bank chose a committee to go to Leicester to effect an adjustment of the affair, and notice was then given to Haynes that the note had not been paid. Haynes had never given the plaintiffs notice of the failure of Smith and Anderton, nor requested the plaintiffs to collect the note. Both Smith and Anderton, previous to their failures, were in the habit of doing business at the Oxford bank.</p> <p>The plaintiffs were to become nonsuit or the defendant to be defaulted, according as the Court should order.</p> <p>The declaration contained two counts ; one charging the defendant as an original promisor, the other as a guarantee.</p>

This was a petition for a writ of certiorari to a justice of the peace, by whom the petitioner had been fined for neglecting to meet with the company of riflemen in the town of Dudley, in September, 1827, at a company muster and a regimental review.

<p>Where no return had been made to the clerk of the District Court, of a sale of luna for the United Slates direct tax of 1815, to enable him to give a deed to the pur chaser, it was held, that in order to maintain an action by the purchaser against tile collector for not causing such a return to be made, by means of which neglect the plaintiff lost the title and possession of the land, it was necessary for the plaintiff to prove that the tax was granted by Congress, that it was duly assessed, and that ail the proceedings necessary to give validity to#the sale, except those which it was the duty of the defendant to perform, were legally had, so that it should appear that the plaintiff’s losing the land was owing to the defendant’s neglect. Proof that the defendant was collector, and that the person who made the sale was his deputy, and that the defendant had received from another person who acted as principal assessor, a list of the taxes in his district, will not throw on the defend ant the burden of proving that the-tax was not legally assessed.</p>

This was an appeal from a decree of the judge of probate disallowing the claim of the petitioner for dower in the estate of John Putnam, deceased. The following facts were agreed by the parties. On June 14, 1798, John Putnam was lawfully married to Anna Cox, in this Commonwealth, where he then, and until his death, had his residence and domicil. In September, 1817, the marriage was dissolved by a decree of divorce by this Court, for the cause of adultery committed by him.

A writ of certiorari to the Court of Sessions was grantee in this case, at April term 1828, because they had issued a warrant for empannelling a jury to assess the damages sustained by the respondents by reason of the location of the Central Turnpike road over their land, without having given notice to the turnpike corporation to show cause why such warrant should not issue.

Trover for divers articles of household furniture attached by the defendant, a deputy sheriff, as the property of Jacob Shumway. The articles formerly belonged to Jacob Shumway, and were in a house in Shrewsbury, owned by one Eager and occupied by Jacob S. The property having been attached by Eager, the plaintiffs, in order to aid Jacob S., satisfied the debt due to Eager, and purchased the furniture, at an appraisement, taking a bill of parcels of it for their indemnity.

<p>Where a captain of a company of militia certified on the warrant oí a {sergeant, that such sergeantet has been appointed clerk of said company and has taken the oath necessary to qualify him to discharge the duties of his office,” without dating the certificate, it was held, that the captain (then become major) might-amend by affixing the date, and also that paroi evidence of the time was admissible ; that the oath must be presumed to have been administered by the captain ; and that the certificate was sufficient, though it did not set forth the oath which was administered.</p>

Assumpsit for the board of Susan Grout, the defendant’s testatrix, from June 1, 1821, to April 29, 1824. The defendant pleaded, 2. that the testatrix devised to the plaintiff and his wife twenty-five acres of land in lieu and in satisfaction of his demand ; that the will was proved ; and that after the probate of the will the plaintiff accepted the land so devised. 3.

The defendant was convicted on an indictment for perjury m his testimony before the grand jury for the Court of Common Pleas ; which testimony related to the offence of breaking glass, supposed to have been committed by certain persons, against the provisions of St. 1785, c. 28, § 1.

<p>‘ An act, incorporating individuals for a particular purpose, does not vest in the corpo* ration, land previously owned by them as tenants in common and previously used for the same purpose.</p> <p>Parol evidence is not admissible to show that a deed given by one of such tenants in common, of his shave in the stock of the corporation, was intended to pass his share of the land.</p> <p>If a grantee of land with warranty, being evicted by a paramount title, extinguishes sucli title for a nominal consideration, he can recover upon the warranty the amount of such consideration only, together with a reasonable compensation for any trouble and expense to which he may have been put in procuring the extinguishment.</p>

<p>Where a promissory note was signed by B and H as principals, and by the defend ant as surety, it was held, that the reception of interest in advance, of the princi pals, by the holders, after the note was overdue, did not discharge the surety.</p>

Assumpsit on a promissory note, dated September 25, 1827, for 100 dollars, given by Silas Reed junior as principal and the other defendant as surety.

This was an indictment, in which it was alleged, that there was “ a certain common and public highway and town road in the town of North Brookfield in' said county, leading and passing from the Baptist meetinghouse in the town of Brookfield to the dividing line between the towns of Brookfield and North Brookfield, and thence in said North Brookfield by the dwelling of the widow Converse to the North Brookfield meetinghouse, &c. which said public highway and town road the…

<p>A and B were sureties on a bond for C ; a suit was brought on the bond, and A paid it ; A died, and by his will made C his residuary legatee and devisee. A’s estate was sufficient to pay all debts and legacies, and to leave a surplus for C, which however would not be sufficient to pay all the debts of C, who was insolvent. A’s administrator sued B to recover a contribution from him as co-surety on the bond ; and B brought a bill for an injunction against the suit at law Held, that this Court had no jurisdiction of the case under St. 1817, c. 87.</p> <p>This Court refused to give an opinion, whether the facts stated were a defence to the suit at law, which was pending in the Common Pleas, although the parties had agreed to submit the question to this Court, and to be bound by the decision.</p>

This was an action for a malicious prosecution in procuring an indictment against the plaintiff for a nuisance, in 1826. The supposed nuisance consisted in the plaintiff’s having put bis stone-wall in the highway, in Westminster.

<p>In the Common Pleas the trustee made the following disclosure.</p> <p>On October 11, 1828, he made a note not negotiable, by which he promised to pay the defendant 56 dollars on demand with interest. He was summoned in this action early in the evening of the same day, he thinks between six and seven o'clock. A few days afterwards Smith Tourtellott informed him, that he, Tourtellott, had purchased the note of the defendant, and requested the trustee to pay it to him, Tourtellott. He then informed Tourtellott of the service of the trustee process upon him. Tourtellott, on November 29, 1828, handed the trustee a written notice signed by Tourtellott^ in the following words, viz. “ This is to give you notice, that I purchased a note of hand [describing the note above mentioned] on the same day of the date of said note, about three oj the Mck in the afternoon of the said day. I sold said Wheelock a pair of oxen, and took the abovementioned note towards the payment of said oxen.” The notice was accompanied by a certificate signed by the defendant, that he had transferred the note to Tourtellott, as stated by Tourtellott. The trustee, in the afternoon of- October 11, before the service of the writ upon him, saw the defendant’s boy driving a ¡air of oxen which the trustee supposed to be the same which Tourtellott stated that he had sold to the defendant.</p> <p>At the next term of the Common Pleas after the answers were given, and before the court had given any opinion upon them, Tourtellott appeared, and presented a petition, in which he requested the court to permit him to become a party to the suit, in order that he might have a jury tó try the validity of the assignment, according to the statute ; but the court refused to grant the petition, and adjudged Healy to be trustee.</p> <p>To this' refusal and judgment Tourtellott filed exceptions</p>

<p>A town which is obliged to maintain a highway, through which a canal has been constructed, not being the owner of the soil, is not entitled to damages under a statute providing for the assessment of damages to the owners of the land through which the canal passes.</p>

<p>Upon a case stated it appeared, that this action was brought to recover the amount due on a promissory note, made by David Hicks, the defendants’ intestate. Hicks, at the time of his death, resided in Vermont, where administration was granted to the defendants. They represented the estate to be insolvent, on January 4, 1827 ; and commissioners were appointed, agreeably to the laws of Vermont, for the purpose of adjusting the claims of the creditors. The commissioners gave due notice, received the claims of creditors, and made a return of their commission, with a list of the claims allowed by them. The amount of the claims allowed by the judge of probate in Vermont exceeded the value of the real and personal estate of the intestate. No notice of the issuing of the commission was given to the plaintiff, either personally or by advertising in this Commonwealth, till after the commission was closed ; and his claim was not presented to the commissioners or allowed by the judge of probate. The intestate was the owner of real estate in this Commonwealth. The administrators took out letters of administration here, and obtained license to sell the real estate for the payment of the debts. No commission of insolvency was issued here and the property here was sufficient to pay the demand of the plaintiff in full. Notice of the plaintiff’s claims was given to the administrators, before the assets in this Commonwealth were withdrawn therefrom.</p>

This was an action brought to recover the expenses incurred in the support of Abner Putnam and his family, paupers, whose settlement was alleged to be in Oxford. At the trial, in the Common Pleas before Strong J., the plaintiffs contended that the settlement of Abner Putnam was derived from his grandfather, Elisha Putnam, through his father.

<p>A testator gave a specific and several general legacies, and devised his farm, being all his real estate, to several of his children, and afterwards by a general clause made the same children residuary legatees and devisees ; his personal property was not sufficient to pay his debts and the specific legacy. Held, that the general legatees must lose their legacies, and that the real estate, being specifically devised, could not be sold to pay them.</p>

This was an action of covenant broken, brought upon a deeo made by the defendant on the 3d of May, 1825.

<p>If an administrator, in his answer to interrogatories proposed to him in the Court of Probate touching his account, makes an admission tending to charge himself with any estate omitted in his account, and at the same time states a fact in his discharge, such statement must be rejected as irrelevant, unless supported by proof.</p> <p>The party at whose instance interrogatories have been proposed, in the Court of Probate, to an administrator touching his account, has a right to offer evidence to disprove his answers.</p>

<p>A note, and a mortgage deed given to secure it, were handed, with other effects, by A, the administrator of the mortgagee, to B, the guardian of the mortgagee’s heirs, on a settlement, as their property, but the note was not indorsed, and no assignment in writing was made of the mortgage, but a power of attorney was given to B to act in the name of A. This power was not recorded. It was held, that the mortgager or his assigns, if acquainted with the equitable assignment, had no right to tender or pay the mortgage money to A, if such tender or payment was made with a design to injure B and the heirs ; and that a discharge of the mortgage made by A would not defeat the rights of B.</p> <p>It seemst that the payment should be made to B, and that he might discharge the mortgage by cancelling the deed and giving up the note.</p> <p>The expression (t power of attorney ” implies a power under seal.</p>

Assumpsit for money had and received. The parties agreed upon the following facts. In 1828, the First Parish in Fitchburg voted to raise the sum of 600 dollars as a parish tax. The sum of 5 dollars 28 cents was assessed upon the plaintiff for certain personal property which he held as guardian of Abel and George Farwell, minor children of Daniel Farwell deceased, and was collected by a distress of his own property, and received into the parish treasury.

This was a bill in equity to redeem certain mortgaged estate. The prayer of the bill extended to the redemption of a farm in Phillipston and other estate included in the' same mortgage, but the object of the plaintiff was to redeem only the estate last mentioned. The case was submitted on the following statement of facts.

<p>A and B, tenants in common, mortgage their land to C, to secure the payment of a joint and several bond, and A afterwards mortgages his moiety to C to secure a debt due from himself alone. C enters upon A*s moiety of the land for breach of the condition of the second mortgage. He then brings an action against B upon the first mortgage for breach of the condition. Held, that the conditional judg meat should be rendered for only one half of the amount of the bond.</p>

<p>Trespass for breaking and entering the plaintiff’s close in Watertown, on the 2d of June, 1825.</p> <p>The defendant pleaded 1. the general issue.</p> <p>2. That the locus in quo now is and at the time &c. was, and from time whereof the memory of man is not to the contrary hath been, an open, common and public landing-place, in and adjoining Charles river, the same being there a navigable river, in which landing-place every citizen of this Commonwealth now has, and at the time &c. had, and from the time whereof the memory of man is not to the contrary, hath had the liberty, right and privilege of entering by himself and with his teams, and of putting and placing thereon boards, timber, &c. borne on and landed from the river, or to put the same on board boats &c. from the landing, at all times and seasons, at his pleasure ; wherefore the defendant, being a citizen, &c.</p> <p>3. That the locus in quo is such a landing-place for the inhabitants of Watertown.</p> <p>Replications were filed, traversing the facts stated in the pleas, and issues to the country were joined thereon.</p> <p>The cause was tried before Morton J. He instructed the jury, that if they found that the plaintiff was in possession at the time of the" acts complained of, they should find for the plaintiff; unless they should also find, that the locus in quo had been used as an open, public landing-place for sixty years, or beyond the memory of man, without having been interrupted ; in that case they should find the first and second issues for the defendant.</p> <p>And as to the first issue, the jury found “ the defendant not guilty, inasmuch as the prescriptive right to the landing had never been lost.” And as to the second, they found that the locus in quo is a common landing-place for all the citizens of the Commonwealth, in manner and form as set forth in the second plea. The verdict on the other issue was taken for the plaintiff by consent.</p> <p>The plaintiff moved for a new trial because the verdict was against the law and the evidence, inasmuch as there was sufficient evidence of title and possession in the plaintiff and those under whom he claimed, and of the trespass alleged, and no sufficient evidence of an uninterrupted and immemorial use of the loops in quo as a public landing-place, or of a prescriptive right in the inhabitants of the Commonwealth to a landing-place there, as alleged in the s'econd pica ; and because the verdict was wholly insufficient to maintain the issues on the defendant’s part.</p> <p>And if a new trial should not be granted, the plaintiff moved that judgment might be rendered for him, notwithstanding the verdict on the first and second issues.</p>

<p>Where money was lent before the statute of usury (1783, c. 55,) was repealed, and s promissory note was given for its repayment with lawful interest, and the borrow er promised verbally to pay a usurious rate of interest for the loan ; it was held9 that the note w'as not rendered void by the verbal agreement.</p>

<p>An action of debt lies to iccovcr the treble damages given by St. 1795, c. 75, § 3, for waste committed on land pending a suit for its recovery.</p> <p>The declaration in such an action, if the defendant was not a party to the suit for the land, must allege that he knew of the pendency of that suit when he committed the waste.</p> <p>The want of such an allegation is not cured by a verdict for the plaintiff, but is a good cause for arrest of judgment.</p> <p>A count in debt for cutting down and carrying away trees on land of which the plaintiff is lawful owner, and while he had a good and legal title thereto, without averring the pendency of any suit for the land, is bad.</p>

Trespass quare clausum fregit. The close described was a lane in the town of Malden. The defendant pleaded, 1. That the locus in quo was a public highway by prescription. 2. That it was a private way by a non-existing grant to the predecessors of the defendant. 3. That it was a private way to the defendant and his predecessors by prescription. 4. '['hat it was a way by a non-existing grant to the inhabitants of Malden. 5.

This was a writ of dower, brought by the widow of Israel Walker.

<p>An appeal lies in a personal action commenced in the Common Pleas, where tne ad damnum, is laid at more than 100 dollars, although the demand set out in the writ be for less than that sum.</p>

<p>A promissory note given to a creditor is not payment of the previous debt, where it is not intended as such by the parties.</p> <p>Where a mortgage is given to secure payment of a note, and the assignee of the mortgage takes a new note from the mortgager, in exchange for the old one, it not being intended as payment, the mortgage debt is not thereby paid, but the mortgage remains good as security for the amount due on the new note, as against the mortgager himself.</p> <p>Whether the exchange would operate as payment of the first note, as against a purchaser under the mortgager, quare.</p>

<p>This was an action of debt on a bond dated April 3, 1826.</p> <p>The condition of the bond, which was set forth on oyer, after reciting that Wellington, at the last March meeting, was chosen collector of taxes for the town of Ashby for the year, proceeded, —“Now if the said Amos Wellington shall well and truly pay over to the treasurer of the said town of Ashby, as also the county and State tax to the treasurer thereof, all moneys assessed by the said town of Ashby and committed to him to collect, agreeably to the directions of the assessors and a vote of said town of Ashby at their annual March meeting in 1823, then” &c.</p> <p>The defendants pleaded omnia performavit.</p> <p>The plaintiffs replied, that Wellington, after the delivery of the bond, “did collect and receive as such collector, of and from the said inhabitants of Ashby, a large sum of money, viz. the sum of 515 dollars and 28 cents, which had been assessed by said town of Ashby and committed to said Wellington, collector as aforesaid, to collect, the same being assessed for the payment of the salary of Rev. Ezekiel L. Bascom, after the execution and delivery of said bond and within the year next following the day of the said March meeting,” &c. On this, issue was tendered and joined.</p> <p>At the trial, before Morton J., the following facts appeared in evidence. The town of Ashby had for many years prior to the date of the bond, managed its parochial affairs as a town, without organizing itself as a parish. Some time before the date of the bond, a second parish was formed in the town, and was duly organized as a parish. From the time of the formatian of the second parish, to the time of the trial, the first parish had managed their parochial affairs by the officers chosen by the town, without any special organization for the manage* ment of parish business. The taxes in question were assessed by the assessors chosen by the town, for the payment of the salary of the minister of the first parish. Wellington was chosen collector of taxes for the town for the year 1826. Wellington, being called on by the plaintiffs, produced the book containing a list of the assessments. While the list was in Wellington’s hands, he collected of one Stephen Wyman, named in it, the amount assessed upon his polls and estate, and gave Wyman the following receipt, viz. “ Ashby, February 21, 1829. Received of Stephen Wyman twenty-nine dollars and thirty-three cents in full for his minister tax for 1826. Amos Wellington, Collector for Ashby.”</p> <p>The book produced by Wellington, beside the list of assessments, contained the following order, dated September 12lh, 1826, and signed by the assessors of the town : — “ Collector’s Book, 1826. Minister rate. To Amos Wellington, Esq. collector of taxes for the town of Ashby. The foregoing is a list of assessments upon the polls and estates of the persons therein named, each one for his proportion of the sum of five hundred and fifteen dollars twenty-eight cents, which you are to collect and pay on or before the first day of December next.”</p> <p>The defendants were defaulted. The default was to stand, if the Court should be of opinion that the facts proved supported the plaintiff’s replication ; otherwise the default was to be taken off and a new trial granted.</p>

This was an action of debt brought originally in this Court, by the plaintiff, in his capacity of judge of probate, upon a bond made by the defendants, dated October 27, 1824.

<p>This was an action upon a bond given to the judge of probate, in 1814, by Hurd, as guardian of Julia Danforth, then a minor, and by Luther French and Joseph Locke, the other defendants, as his sureties</p> <p>The parties stated the following facts.</p> <p>On March 16,1816, Hurd, at his own request, was dismissed from his guardianship, and Josiah Crosby was on the same day appointed guardian in his room.</p> <p>On December 4, 1816, Hurd settled his account as guardian, in the Probate Court, when there was a balance against him of 478 dollars 48 cents. It appears by a writing on the account, signed by Crosby, that he was present and made no objection. Hurd having become insolvent, his sureties were called upon to pay the balance above mentioned. It not being convenient for French to make the payment, he, on November 1, 1819, made a mortgage in fee to Crosby, of certain land, for the consideration of 500 dollars, but without any note or other personal security to accompany the mortgage : — upon condition, that if French, his heirs, &c. pay “ to the said Crosby, his heirs, executors, administrators or assigns, one half of the amount of the balance due from Isaac Hurd junior to Julia Danforth, for whom the said Crosby is guardian, according to said Hurd’s settlement in the Probate Court as late guardian to said Julia, with interest on said amount, within six months from this date, then this deed shall be void ; otherwise,” &c. The deed was immediately acknowledged and recorded.</p> <p>Crosby not wishing to retain the guardianship, Julia Dan-forth, in March, 1823, being then eighteen years of age, made choice of William Richardson as her guardian, and on the 5th of that month the judge of probate made a decree appointing Richardson guardian, “he giving bond as the law directs.” A letter of guardianship was made out, but not delivered to Richardson, on which the register of probate indorsed the words,— “ To be delivered when bond is filed.” And at the same time Crosby settled his account of guardianship, to which Richardson assented by his signature to the following words, written on the account by the judge of probate. “ Having seen the within account of Josiah Crosby, hitherto guardian of Julia Danforth, (to which minor I have this day been appointed guardian,) I have no objection to make thereto. March 5, 1823.” No decree or order was made by the judge, that Crosby should be discharged from his trust of guardian, nor is there any written request on file in the probate office, for such discharge. Richardson soon after assumed to act as guardian, and continued to do so until his death. On November 24, 1823, he received of Locke, the co-surety with French on Hurd’s bond, the sum of 339 dollars 32 cents, and gave a discharge for the same under his hand and seal as guardian ; and afterwards, on June 15, 1826, he died, without having filed any bond in the probate office.</p> <p>French made Richardson his agent for selling the land mortgaged to Crosby, but whether before or after March 5, 1823, did not appear, and Richardson, as such agent, sold the same in April, 1823, to William Bowers, for 685 dollars. Within a few days after the sale, Crosby applied to Bowers, in the absence of Richardson, to know whether he was about to make a payment of money to Richardson. Bowers answered that he was ; whereupon Crosby said the money was coming to him on account of Julia Danforth. Bowers then paid Crosby 50 dollars on account of the purchase, for which Crosby gave him a writing to show that he had paid that sum ; but whether in the form of a receipt or a note, did not appear. Some days after, Bowers presented that paper to Richardson, who allowed the 50 dollars towards the purchase money of the land, Crosby being present but saying nothing in relation to the matter. On May 21, 1823, Bowers went with Richardson to Crosby’s, where Bowers paid the residue of the purchase money to Richardson, and received from him French’s deed of the land, and at the same time Crosby executed a discharge, under seal, upon the back of the mortgage, as follows : — “I acknowledge to have received full satisfaction for the within mortgage deed, and desire the same may be entered in the margin of the record thereof. Witness,” &c. The money paid by Bowers to Richardson was immediately paid over by Richardson to Crosby. But Crosby testified, that he received the money in discharge of a debt due from Richardson to him, and not as the money of Julia Danforth or for her use. It was further testified by Andrew French, the son of Luther, that he having undertaken to pay his father’s debts, Crosby, about a year after the sale of the land, called on the witness for payment of a note of about 200 dollars, which Crosby held against Luther. The witness told Crosby, he thought the land was sold for enough to pay the mortgage and the note. Crosby replied, that the mortgage had been paid to him, but he had received nothing towards the note.</p> <p>The question was, whether the defendants were still liable for the sum secured and paid by French in the manner above stated.</p>

<p>To a writ of dower, the tenant, who is a purchaser, pleads, that he cannot deny the right of the demandant to be endowed, but that he has made improvements on the land, and that he has always been ready to render to the demandant her rev sonable dower, according to her just rights in respect to the increased value of the land, and that on a day specified he assigned a third part of the land, in the con dition in which it was at the time of the alienation, by metes and bounds ; and he prays that the increased value may be inquired of. Upon demurrer it was held, that, as a plea in bar, the plea was bad ; and that it must be construed as admitting a right to recover dower according to the value at the time of the alienation, but denying the right to be endowed of the improvements.</p> <p>If a wife joins in a deed with her husband,<c in token of her relinquishment of dow cr,” without any words of grant on her part, although the husband may have previously parted with all his right and title to the grantee named in the deed, she is nevertheless estopped to claim her dower.</p>

Assumpsit to recover the amount due on thirteen promissory notes and four checks. The defendant pleaded non assumpsit, and actio non accrevit infra sex annos. The case was tried before Morton J. The plaintiff gave in, evidence the notes and checks, all of which were payable more than six years before the suit was brought.

This action was brought to recover damages for an injury sustained by the plaintiff by the oversetting of a stagecoach owned by the defendants, through the negligence of their driver.

This was trover for the pannel work of sixty-six pews, which the defendant, as a deputy sheriff of the county of Es sex, had attached as the property of John Johnson, first at the suit of James Homer, and secondly at the suit of a committee of a religious society in Amesbury. At the trial, before Morton J., the following facts appeared in evidence.

<p>Land granted by A to T with covenants against all incumbrances and of general warranty, was nevertheless subject to a mortgage to C, on which C subsequently recovered the conditional judgment, and obtained possession of the land. While the land continued in T’s possession, lie mortgaged it for a smaller amount than C’s mortgage. After C liad thus obtained possession, T brought an action against A for a breach of the above covenants, in which It was held ; 1. That the covenant against incumbrances was broken when the deed was execuied, but that T could only recover nominal damages, as he had not paid any thing to remove the incumbrance. 2. That the covenant of warranty was broken ; that T, by his mortgage, had assigned this covenant, to the extent of the sum due on this mortgage, to the mortgagee ; that the damages recoverable in this action were the amount of C’s judgment for debt and costs, deducting the amount of the mortgage which T had made himselfj and that if before judgment T paid oft' the mortgage made by himself, lie could recover in this action the whole amount due to C.</p>

Trespass for taking, carrying away, and destroying two hundred gallons of French brandy. Trial before Morton J. on the general issue.

This was replevin for one hundred and twenty sheep, which had been attached by the defendant in a suit against Jacob Newcomb. At the Common Pleas the defendant pleaded in abatement, that the plaintiff was an infant at the time when the writ was sued out, and had sued in his own name, and not by his guardi an or next friend.

<p>Neither cl uses in action nor land assigned, are, in the hands of the assignee, goods, effects, or credits of the assignor liable to the trustee process; even in case the assignee would be trustee after receiving money by means of the choses in action, or as the proceeds of the sale of the land.</p> <p>A debtor assigned goods, clmses in action, and land, to an assignee, for the benefit of creditors. Aftei* some of the creditors had become parties to the assignment, the assignee was summoned as trustee of the debtor, before money was collected on any of the choses in action, or the land was sold. The goods were not sufficient to pay the debts of those creditors who had become parties before the writ was served, but the proceeds of the whole funds, including the choses in action and the land, would be more than sufficient. The court refused to direct the trustee to pay tlie creditors who had signed, out of the proceeds of the choses in action, and the land in the first place, and thus leave a part of the goods to be held by die trustee process, and discharged the trustee.</p>

This was a petition for a certiorari to the Court of Common Pleas, in the case of a complaint against the petitioner under St. 1785, c. 66, for the maintenance of the complainant Hardy’s bastard child, born October 19, 1S2S, of which the complaint alleged Maxwell to be the father.

Assumpsit to recover expenses incurred in the support of Abel Stearns and his family, who were paupers. Plea, non assumpsit. At the trial in the Court of Common Pleas, before Strong J., the plaintiffs, in order to prove that it had been duly notified to the defendants that the paupers had become chargeable to .the town of Ashby, produced a notice signed by two of the selectmen of Ashby as selectmen, with evidence that it had been duly sent to the overseers of Lunenburg.