Volume 26 — Massachusetts Reports

<p>If one discharges a gun at wild fowl, with knowledge and warning that the report will affect injuriously the health of a sick person in the neighbourhood, and such effect is produced by the discharge, he is guilty of an indictable offence.</p>

<p>Where a vessel is sold while at sea, it is sufficient tor the vendee, in order to main tain his title against a subsequent purchaser or attaching creditor, to take posses sion of her without any unreasonable delay after her arrival.</p> <p>Whether the purchaser has taken possession of the vessel within a reasonable tima after her arrival, is a question to be decided by the jury upon the circumstances of the case.</p> <p>One eighth of a vessel at sea belonging to Hyannis, was sold to a person residing in Nantucket, on August 11th; she arrived at Hyannis August 22d, and sailed from there August 29th, on a new voyage, and returned there again September 16th, and was attached as the property of the vendor September 17th. The vendee came from Nantucket by the first packet after receiving news of her arrival, and arrived at Hyannis September 23d, and on that day replevied tiie vessel. It did not appear that the vendee knew of the vessel’s being at Hyannis in August, while she was there. Held, that the vendee’s title should prevail against the attachment.</p>

This was assumpsit. The plaintiff, in the first coum, claimed one quarter part of the disbursements of the sloop Register, against the defendant as owner of one quarter part of the vessel. The second count was upon a sale of one quarcer of the sloop, and a promise by the defendant to pay to the testator, Asa Higgins, one quarter part of the amount which the testator had paid for the sloop. The ueclaration also contained counts for money had and received and for interest.

This was an action on the case, for a breach of a special contract, in which the defendant undertook to bleach cotton cloths for the plaintiffs. At the trial, the superintendent of the company’s works testified, that the defendant omitted some of the processes requisite for good bleaching, and the witness estimated the damage sustained by the company, in regard to one species of goods, at $ 1652.

<p>Church Gray, being summoned in a process of foreign attachment as the trustee of Bliss, disclosed an indenture of two parts, made by Bliss of the one part and the respondent of the other part, whereby Bliss assigned to the respondent certain parcels of real estate and all his goods and chattels and choses in action, in trust to pay certain of his creditors in full, and others pro rata, in case the property should be insufficient to pay them in full ; and the respondent covenanted to perform the trust.</p>

Trespass for taking and impounding the plaintiff’s cow. At the trial, in the Common Pleas, before Williams J., i was admitted that the cow was taken damage-feasant, and impounded by virtue of St. 1788, c. 65, § 3. The plaintiff offered evidence tending to prove, that after the taking, the cow was bruised and injured ; and he contended that this abuse made the defendant a trespasser ab initio.

The defendant was indicted for stealing fourteen tame doves, the property of Benjamin Williams. At the trial, before Morton J., it was proved, that Williams had dove-houses in which he reared doves, and that he used them for food ; that the doves mentioned in the indictment occupied these dove-houses, and were claimed by Williams as his property ; that he took care of them and fed them regularly, and that they would come to be fed when called.

<p>Assumpsit upon a promissory note made by A. Snell junior, as follows : — “ Westport, March 9th, 1809. Value received, I promise to pay W. White or order 100 dollars, to be paid if I recover of T. Shearman my demands against said Shearman, &c. to be paid when recovered of said Shearman,” &c.</p> <p>The plaintiff, in his second count, alleged that Snell had no demands against Shearman. In his fourth count, filed under leave to amend, he set out the note, and alleged, that although Snell had demands against Shearman, yet he “never collected or recovered said demands of said Shearman, nor used proper diligence to recover and collect the same.”</p> <p>Upon the trial, before Wilde J., the jury were instructed, that it was not necessary that the plaintiff should prove a demand on the testator to collect his demands of Shearman, if they should be of opinion that due diligence had not been used in collecting the same.</p> <p>White -</p> <p>The jury returned a verdict for the plaintiff, upon the ground that the defendant had not used due diligence, and the plaintiff took a verdict upon the fourth count.</p> <p>The defendant moved for a new trial, on account of the instruction to the jury. He likewise moved in arrest of judgment, on the ground that judgment could not be rendered on the fourth count, because this count was incompatible with the second ; also, because it was bad and insufficient to found a judgment upon.</p>

From the answers of Whitwell it appeared, that on April 4th, 1829, he received of Luther T. Wilson, one of the defendants, a bill of sale of three eighths of the brig Mentor ; that this was an absolute purchase, for which he promised verbally to pay Luther T. the sum of $ 2000 ; that no money was paid at the time nor since, as Luther T. and his father Luther Wilson, who were partners, were and still are indebted to the respondent in a much larger sum than $2000 ; that on May…

John S. Russell, one of the supposed trustees, disclosed in his answers an assignment made by Wheeler to RusscL and the other supposed trustees, of property, real and personal, to a large amount, in trust to sell and dispose of the same, and out of the proceeds to pay all Wheeler’s creditors, in ratable proportion to the debt of each, without preference.

<p>On the question, whether ’ one H., under whom the plaintiff claimed, had a title to certain land, the administrator on H.’s estate testified, that his (the administrator’s) house was destroyed by fire, and that H.’s papers were all burnt in the house; that he did not recollect ever seeing a deed of the land from A. to H., but that there was a bundle of deeds belonging to H. which he (the administrator) had never examined. Another witness testified that she heard a conversation between A, and II. relating to the purchase of land, and that she thought there must have been a deed, though she never saw one, and that she saw H. pay money to A. and heard „ something about a warranty deed. It was also shown, that a deed taken by the defend mt recognized the lot “ sold by A. to H.” Held, that this was sufficient proof of the loss of the deed, to render a copy admissible in evidence.</p> <p>Where the proof of a deed is by a copy, it is not necessary to produce a subscribing witness to prove the execution.</p> <p>Where a registry copy of a deed is duly admitted in evidence, the registry itself is evidence that the deed was executed.</p> <p>Where a person, while living upon land to which he afterward acquires a title, takes a deed of part of a tract described as bounding on such land, this is evidence against him, in the nature of a confession, that such land does not cover any part of the tract so described.</p> <p>On a question of title, locations made by the proprietors of common land to the grant- or of one party, may be given in evidence by the other party, for the purpose of showing that the locations did not cover the land granted, and that the grantor conveyed land to which he had no title.</p>

At a court of probate held in August 1826, Bass, executor of the last will of Thomas Eaton, presented a petition praying for an allowance of his account against Samuel Breck, a minor under the guardianship of Stetson, upon which petition a decree was passed allowing the account. From this decree Stetson, as guardian, appealed for the following reasons. 1.

<p>If .enante in common of a mill-dam make repairs on it together, and one contributes more than his proportion of the expense, he may recover the excess from his co-tenant in an action of assumpsit.</p>

<p>A special demurrer to an amended declaration on the ground of defects of form may be filed at the term of the Common Pleas when die amendment is made, that being the “ first term ” in respect to such amended declaration.</p> <p>It is too late to file such demurrer at the next term after the amendment is made.</p>

<p>Assumpsit for money had and received.</p>

This was a writ of entry. The case was submitted on an agreed statement of facts. The demanded premises are a part of a farm in Middleborough, of which Japhet Le Baron died seised.

Assumpsit upon a promissory note made by the defendant to Ichabod Dunham, the testator. Trial in the Court of Common Pleas, before Williams J., upon the general issue. The defendant filed in set-off an account for $ 14-50, and offered evidence to prove the same.

<p>Where a promissory note was signed by the defendant and one A., and A. gave in renewal of it a note in which the name of the defendant was forged, and a suit was brought upon the forged note, and the plaintiff gave in evidence declarations and admissions of the defendant tending to show an adoption of this note and to take it out of the statute of limitations, in one of which declarations he spoke of the suit’s having been commenced, it was held, that the service of the writ did not raise a presumption that the declarations related to the new note lather than the old one, without evidence that the defendant had knowledge of the new one or of the contents of the writ; and that the burden was on the plaintiff to prove such knowledge; and that it was proper for the jury to determine upon the whole evidence, to which of the notes the declarations and admissions related.</p>

<p>Where A. occupies one half and B. the other half of a dwellinghouse, a notification left at B.’s part of the house, for A. to appear at a militia muster, is not a legal warning.</p>

<p>It was alleged for error, that neither at the time of the supposed delinquency, nor at the time of making the complaint to the justice, was Matthew Kingman, the complainant, the clerk of the company. One Packard testified, that in May 1828, he, Packard, was the clerk of the company ; and that in the autumn of that year he resigned his office and surrendered his sergeant’s warrant to the captain, who accepted the same, and that he then went into the ranks. Kingman was appointed clerk in April 1829. The objection was, that Packard could not make his resignation to the captain and go into the ranks, and consequently he continued still to be the clerk. But, per Curiam,, the captain had a right to appoint the clerk, and of course a right to accept his resignation.1</p> <p>The order was, that the company should be warned to appear “ at Col. Edward Southworth’s store in North Bridgewater,” and the complaint against the petitioner was for neglecting to appear at that place ; but he was warned to appear “ at the usual place of parade of said company in North Bridgewater.” It was objected that he was not warned to appear at the place mentioned in the complaint. Evidence was produced before the justice, that Southworth’s store was, and for years had been, the usual place of parade of the company, and that the petitioner had been enrolled in the company in 1828, and had performed military duty therein. Per Curiam. This was sufficient to sustain the complaint, so far as regards this obje' tion.</p>

Assumpsit upon a joint and several promissory note made by the defendant and one Charles Stetson, now deceased, dated February 11th, 1813, payable to H. Hathaway, the plaintiff’s intestate. The defendant pleaded that he did not promise the intestate within six years before the commencement of the action. The plaintiff replied a new promise within six years.

Assumpsit for $25 money had and received. At the trial of the case, before Cummins J., in the Court of Common Pleas, the plaintiffs proved that an action was brought in the defendant’s name against Benjamin Dean, James Dean, and Jacob A. Thomas, to recover a penalty of $ 50, for a violation of the 4th section of the St. 1819, c. 133, regulating fishing in Taunton Great River ; which action was sued as well for the inhabitants of Raynham as for the present defendant.

This was a petition presented at October term 1828, for a writ of certiorari, in which the petitioners represent, that at the term of the county commissioners of Bristol held on the fourth Tuesday of September 1828, the commissioners of highways of the same county made returns of their laying out a new highway in the counties, of Bristol and Plymouth on the petition of William Hathaway and others for the location of a certain road from Taunton to New Bedford, beginning &c.…

This was an action of debt for rent from December 6th, 1824, to June 6th, 1825. Trial upon the general issue, before Wilde J. It was proved that one Randolph formerly occupied the premises described in the declaration, holding the same under a lease from one Brownell. The defendant purchased all the right of Randolph, the same being sold on execution, and the plaintiffs, before the expirado' of the term created by the lease, purchased all the right or rownell.

<p>Before the town of West Bridewater was formed out of a part of the town ot Bridge-water, the great-grandfather of a pauper gained a settlement in Bridgewater by a residence in that part of the town which is now West Bridgewater; the pauper, his father, and grandfather, resided in that part of the town which is now Bridgewater, and the pauper owned and was taxed for real estate in the part of the town which is now Bridgewater, so that he would have gained a settlement therein if it had been a separate town. By the St. 1821, c. 82, creating the town of West Bridge-water, it is provided, that “ all persons who may hereafter become chargeable as paupers to the said towns of Bridgewater and West Bridgewater, shall be considered as belonging to that town on the territory of which they had their settlement at the time of passing this act, and shall in future be chargeable to that town only.” Held, that the pauper’s settlement was in West Bridgewater.</p>

This was an action of the case, in which the plaintiff declared that he was lawfully possessed of four mills upon Taunton river, “at a place called Titicut Falls, in the parish of Titicut in the said county of Plymouth,” and that the defendants had wrongfully kept up a certain mill-dam across the river “ below the said mills of said Jacob and between the same and said Mount Hope bay, to wit, at the parish aforesaid,” and thereby caused the water to flow back upon the…

<p>This was a complaint under the statute,, in order to obtain damages for overflowing the complainant’s land. His complaint alleged, that the defendants “ have maintained and kept up a dam across Charles River for six years last past, and still do maintain and keep up said dam, whereby the lands ” of the petitioner, since May 25th, 1825, “ have been overflowed and greatly damaged.”</p> <p>The respondents pleaded, that a jury ought not to be empannelled to appraise the yearly damage, because they are seised and in the possession and occupation of certain mills on and below the dam, and by reason of such seisin, possession ■ and occupation by them and those whose estate they have, they, for all the time mentioned in the complaint, had, and still have a right, by means of the dam, to raise the water as high as it has been raised by this means during the time mentioned in the complaint, without paying damage.</p> <p>The replication denied the right of the respondents to raise the water as high as it had been raised, without paying damage. Issue was thereupon joined, and a verdict found for the complainant.</p> <p>The respondents then moved in arrest of judgment,, because the complaint did not allege that the dam was erected and kept up and the water raised for the purpose of working or turning any water-mills, or that there were any mills on, below, or connected with the dam, by means of which the complainant’s land was overflowed.</p>

The petition represents that the petitioners are interested m and hold in common and undivided with Payton Gay or some other persons to them unknown, 49,502 parts of 75,000 parts of a piece of land in Dedham ; of which they pray partition, &c. Payton Gay and George W. Gay, having appeared to this petition, plead, that they, the respondents, at the time of preferring the petition, were, and ever since have been, and now are sole seised and possessed of the land in question, “…

This was a writ of error sued out by Plimpton, the original defendant, against Baker, the original plaintiff.

This was a bill in equity brought by the plaintiff as administratrix of the estate of Isaac Copeland ; in which she alleges, that in 1813 the intestate entered into the business of carpentry and machine-making, as a partner on equal shares with Thomas Crane, one of the defendants ; that she believes there never was any written agreement containing the terms of the copartnership'; that Thomas Crane was the agent of the company and had the keeping of the books, until the…

Assumpsit for money had and received, to recover the dividends on twelve shares, numbered from 25 to 37 inclusive, in the stock of the Blue Hill Turnpike Corporation. Plea, the general issue. Trial before Morton J. The defendants admitted that the dividends had been de dared upon the abovementioned shares, and that the plaintiff demanded payment of them in February 1828, but they denied the plaintiff’s title to the shares.

This was an action of debt upon a bond, the condition of which, as it appeared upon oyer¡ was as follows.

This was an action of debt to recover a penalty. In the writ the plaintiffs describe themselves as “a committee of the town of Braintree for the purpose hereinafter mentioned, and who sue for the use and benefit of the town of Braintree.” By the first section of St. 1817, c. 151, the inhabitants of the town of Braintree are authorized to regulate at their annual •meeting in March or April, the taking of fish in the Monatiquot river within that town, and the regulations thus…

Assumpsit for $200, money had and received. At the trial, before Morton J., the following facts appeared in evidence. The plaintiffs are the children of James Fairbanks. In the year 1817 James Fairbanks gave a promissory note for $94 to George Blackington, the father of the defendant, and also father of Fairbanks’s wife, the mother of the plaintiffs. The note was made to bear date September 7th, 1814.

<p>This was assumpsit for money had and received. Judgment was given for the defendants in the Common Pleas, upon a statement of facts drawn up by Strong J. of that court, according to the agreement of the parties. The action was brought to recover the amount of a tax assessed on the plaintiff for the year 1826, which he paid after it had been demanded by the collector. The town, on May 15th, 1826, voted the sum of $ 600 to be paid to the Rev. George Morey, and the plaintiff’s proportion of the sum was included in the tax which he paid. The proceedings which led to this vote, on account of which the legality of the tax is questioned, are as follows.</p> <p>The selectmen of the town issued a warrant for calling a town meeting on March 6th, 1826, in which the 4th article to be acted upon is the following. “ To see if the town will hire a clergyman to assist the Rev. George Morey in his ministerial duties, or take such other measures in relation thereto as they shall see cause.” At this meeting a committee was chosen to confer with Mr. Morey to ascertain if he would dissolve his ministerial connexion with the town, and on what terms, and to report at an adjourned meeting in April.</p> <p>At the adjourned meeting of the town, held April 3d, 1826, this committee reported that they had conferred with Mr. Morey, and they stated certain questions which they had put to him and his answers, from which it appeared that he declined giving up his salary, or relinquishing his ministerial connexion unless his whole salary should be paid during his life, but that he hau no objection to having a colleague settled. At this meeting a committee was chosen to obtain legal advice in rela tion to the contract with Mr. Morey, and how far the same is binding on the town, and to report at the May meeting.</p> <p>A meeting of the town was held on May 1st, 1826, in the warrant for which meeting, the 7th article to be acted on is stated to be, “To hear the report of the committee respecting the settlement of Mr. Morey, &c. and act thereon as they see cause.” At this meeting it was voted to be the wish of the town to dissolve the ministerial connexion with Mr. Morey. A committee was also appointed to wait on Mr. Morey, to give him an opportunity to make any propositions in relation to a dissolution of the ministerial connexion, and if he made any proposal which the committee should think satisfactory, they were to request the selectmen to call a town meeting to act upon it.</p> <p>A meeting of the town was held on May 16th, 1826, in the warrant for which meeting the second article is, “ To hear the report of the committee that was chosen to consult with the Rev. George Morey relative to dissolving his ministerial con-' tract with said town, and act thereon as they see cause ;” and the third, “ To adopt such measures in relation to their ministerial concerns as may then and there seem expedient, and act thereon as they see cause.” At this meeting the committee reported, that Mr. Morey had agreed to receive $600 as a final compensation for all claims, and to relinquish the ministerial connexion ; they also stated that a gentleman had given them $ 50 to make a part of the 600, in case the town should accept the proposal of Mr. Morey. The town thereupon, after a pie-amble reciting that Mr. Morey had become incapable of discharging the duties of his office by reason of the infirmities of age, and expressing a desire to promote the comfort and welfare of their venerable pastor, voted, “ that the town pay the Rev. George Morey the sum of six hundred dollars ” in full of all claims for a stipulated salary, and that the committee appointed at the last meeting be authorized to carry this vote into effect and to make a settlement and take a release from Mr. Morey. The town also voted “ to grant six hundred dollars to pay Rev. George. Morey and ministerial uses.”. At this meeting the plaintiff attended, and observed to a person present that they did not give Mr. Morey enough; though it did not appear whether he voted on the question. At a subsequent meeting expressed his satisfaction with the proceedings of the town relative to Mr. Morey, and observed that he should be willing to pay his portion of $ 1000. But before the tax was demanded of him he became dissatisfied.</p> <p>An agreement in pursuance of the town’s vote, and containing a release from Mr. Morey, was accordingly written and signed by the committtee on behalf of the town, and by Mr. Morey.</p> <p>The assessment committed to the town collector contained three divisions ; the first, County and Town tax, the second, School tax, the third, Ministerial tax. Under the first division were four columns, headed respectively, “ No. of Polls, Poll Tax, Real, Personalunder the second and third divisions the columns were headed, “ Poll Tax, Real, Personal, ” and another column was headed “ Total.” There was no column, under either of the divisions, headed “ Income.’’’’ And in the valuation and description of estates taxed by the assessors, there was no column for income, and ho mention was made of it.</p>

This was a petition for partition of land in Braintree, of which the petitioner averred that he was seised of an undivided moiety as tenant in common with the respondent. The respondent pleaded that he was sole seised, and traversed the petitioner’s seisin. At the trial, before Morton J., the following facts were proved or admitted.

<p>Though a turnpike corporation has only an easement ih the land over which the turnpike road is located, it may make any use of the land which is necessary for the enjoyment of its franchise.</p> <p>It may therefore cause a dwellinghouse to be erected for the toll-gatherer, and trees to be cut down, and a cellar and a well to be dug for the accommodation of the house, on land over which the turnpike road is placed, without being liable to an action of trespass by the owner of the land.</p>

<p>ignorance of law signifies ignorance of the law of one’s own country.</p> <p>Ignorance of the law of a foreign government is ignorance of fact.</p> <p>In this respect, the laws of other states in the Union are foreign laws.</p> <p>Money paid by mistake through ignorance of the law of another of the United States, may be recovered back.</p> <p>Whether money paid under a mistake of law can be recovered back, quaxre.</p> <p>4. citizen of this Commonwealth died here, intestate, being seised of real estate here and in New York, leaving a niece, the child of one of his sisters, and three nephews, the children of another sister, his heirs at law. By a statute of New York, the land in that State descended, one moiety to the niece, and the other moiety to the nephews. The niece (with her husband) and the other heirs sold land in New York by a joint deed of release and quitclaim, and the purchaser gave to the husband and the three nephews each a bond for one quarter of the purchase money, all parties being ignorant of the statute; which bonds were paid to the respective obligees. The husband, on discovering that half of the land descended to his wife, brought assumpsit against one of the nephews to recover one third of the fourth of the purchase money, and the action was sustained.</p> <p>So the husband was held entitled to recover of the nephew in the like proportion, where upon the sale of land in New York a part of the consideration was paid at the time of the purchase, and divided equally among the four heirs.</p> <p>The husband was held entitled to interest, only from the time of the service of the writ, (no previous demand was proved,) notwithstanding the nephew had made use of the money in question.</p> <p>The intestate mortgaged land in New York as security for money to be lent to him by L. at successive periods, part of which was received by the intestate and the residue by his widow as his administratrix. By an agreement between the heirs and the administratrix, by which certain stock was placed under the control and management of the heirs, it was stipulated that this and other debts should be paid out of the proceeds of the stock. Before the stock was sold, L.’s remedy against the administratrix became barred by St. 1791, c. 2S, limiting suits against administrators, and his only remaining remedy was on the mortgage. The mortgaged land having been sold by the four heirs in the manner first above mentioned, the purchaser gave them a bond, by which he undertook to pay the debt to L., and for this purpose, when he paid his four bonds given for the purchase money, he was allowed to deduct from each an equal sum; and it was then agreed bntwee.i the heirs and the administratrix, that the payment of the debt by the heirs should have the same effect upon the pat ties in interest as if it had been paid by her as administratrix, it not being then certain that the personal estate would be sufficient to pay the debts of the intestate. The purchaser neglecting to pay the debt, L. obtained payment by a sale of part of the mortgaged premises, pursuant to the laws of New York. It was held, that the husband was not entitled to recover any thing of the nephew on the ground that half of the debt to L. was paid by the land, in* stead of being paid by the personal estate; for if the husband, with a knowledge that his wife owned half of the land, would not have consented that the debt should be paid out of this particular fund, the nephew, with the like knowledge, would have relied on the statute bar, and have left the creditor to his remedy on his mortgage, and although, the personal estate here was liable to the payment of the debt, if the creditor had chosen to enforce it by a suit against the administratrix, yet it was not her duty to go into New York to relieve the mortgaged estate.</p> <p>If an heir sells land incumbered with a mortgage, without applying to the administrator to redeem, he cannot afterward come upon the personal estate for assislance.</p> <p>Where land of two tenants in common was sold by them and one brought assumpsit for his share of the proceeds against the other, and in an agreed statement of facts the parties set forth the proportions in which they owned the land, it was held, that the objection that the title to land was drawn in question in an action of assumpsit, did not apply,</p>

<p>This was an action upon a bond given to the plaintiff as judge' of probate, by the defendant as the trustee under the will of William Pousland.</p> <p>The parties stated a case.</p> <p>William Pousland made his last will, which was duly proved and allowed, containing the following clause:—“ I give, devise and bequeath one third part of my real and personal estate unto Nathaniel Lamson, of &c. his executors and administrators, upon trust, that he the said Nathaniel Lamson, his executors or administrators, shall and do pay the income of said real estate and the interest of said personal estate, to my son Joseph Pousland during his life ; and after his decease the-same to descend to his legal heirs. My will further is, that if my said son shall, by reason of sickness or incapacity, be unaable to get a support for himself or family, in that case the said Nathaniel Lamson, trustee as aforesaid, his executors or administrators, shall and may advance him, my said son, from time to time, from the personal estate, such sum or sums of money, over and above the income of the part devised as aforesaid, as he or they may deem proper.” On the 19th of November, 1822, Woodberry was duly appointed trustee under the will.</p> <p>Joseph Pousland was a mariner. He had no family to maintain, and was never married. He went to sea in June 1822, and never returned. He died in 1824, but his death was not known here until 1826. He made his will, which has been duly proved and allowed Woodberry has paid the interest and income of the estate to Abigail Pousland, (who had a power of attorney from Joseph to receive the same,) and likewise paid debts of Joseph, as appears by accounts settled by Woodberry in the probate court. Abigail Pousland has demanded, under the will of Joseph, all his personal property; and W. D. Crossfield and Hannah his wife, have demanded a share of the same ; Hannah being a sister of Joseph Pousland, and she and Ruth Pousland being his heirs at law.</p> <p>W. D. Crossfield was present at the exhibition and examination of the last probate account of Woodberry, settled in July 1827. Notice of the settlement of the other accounts was given only to Abigail Pousland, as attorney of Joseph. In these accounts Woodberry had allowance of sums paid to creditors of Joseph, and to Abigail Pousland, subsequently to the death of Joseph.</p> <p>The case was argued in writing by Saltonstall, for the plain-an(^ Kimball, for the defendant.</p>

<p>Replevin for oxen, &c. The defendant, a deputy-sheriff, pleaded, 1. Property in Nathan Abbott and Nathan Abbott 3d, with an avowry for a return. 2. Property in Nathan Abbott. 3. Property in Nathan Abbot 3d. The replication was, property in the plaintiff; on which issue was joined.</p> <p>The case was tried before Putnam J.</p> <p>The plaintiff claimed as a purchaser from Nathan Abbot and Nathan Abbot 3d on July 16th, 1827. The bill of sale was produced, in which they acknowledged to have received payment by a note of that date given to them by the plaintiff.</p> <p>The defendant claimed the property on an attachment made hy him as deputy-sheriff, in a suit against the Abbots.</p> <p>The Abbots were offered as witnesses by the defendant, to prove that the sale to the plaintiff was not made bonájide, but with an intent to defeat their creditors. Their evidence tended to show this fraudulent intent on their part, and a design on the part of the plaintiff to assist them in carrying it into effect. It also appeared' from their testimony, that the plaintiff did not make the note at the time the bill of sale was given, but with the consent of Nathan Abbot had passed it to Moses Bailey, his father, as security for a debt due to him from Nathan Abbot. Their evidence did not show whether the note had been paid or not, or whether it was negotiable or not, or what had become of it.</p> <p>The counsel for the plaintiff objected to the competency of the Abbots as witnesses, and they were rejected, and the defendant defaulted. If they, or either of them, were competent, the default was to be taken off and a new trial granted; otherwise judgment w'as to be entered on the default.</p>

The indictment in this case recites, that by a statute passed March 4th, 1826, (Si. 1825, c. 164,) James Prince and others were incorporated by the name of The Proprietors of the Newburyport Bridge, and that by the second section it is enacted, that there shall be a draw not less than thirty-eight feet wide, and a suitable pier on each side of the bridge at the draw.

Emerson, being summoned as the trustee of Asa Pingree, made a general answer, that at the time of the service of the original writ be bad not any goods, effects or credits of Pingree in bis hands ; and that be had not promised to pay Pingree or to be accountable to him for any sum of money or othei thing whatsoever, within six years before the commencement of the plaintiff’s original suit; and that he never gave Pingree, or any other person on his account, any bond,…

This was an action on the case to recover double damages under the St. 1786, c. 81, § 7, for an injury sustained by the plaintiff through a defect in a town way in Andover. At the trial, in order to prove that the road was duly located, approved, and recorded, the plaintiff offered certain books of town records.

<p>A., being the owner of a factory and the machinery in it, gave a bond to S., conditioned that lie would convey them to S., when certain negotiable notes given as the consideration, should be paid, and that S. should have the possession of the property, so long as he continued to pay the notes as they became due, and no longer, and possession was delivered immediately, pursuant to the bond» Before the first note became due, the machinery was attached as S.’s property, and was removed from the factory by the officer, who, before the removal, had full notice of A.’s title, and the machinery was afterwards sold on execution. A. then brought an action against the officer, in which the declaration contained counts in trover and case. Held, 1. That A. might maintain case for the injury done to his reversionary interest in the machinery 2 2. That the proceeds at the sheriff’s sale were not ihe measure of damages in the action: 3. That the measure of damages was the value of the machinery as it stood in the factory, before its removal.</p> <p>The court refused to set aside the verdict in this case on the ground of excessive damages, though the amount was nearly three times as much as that produced by the sheriff’s sale.</p> <p>Whether the count in trover could be supported, qucere.</p> <p>It seems, that if S. himself had removed and sold the machinery, A. might have brought trover against the vendee.</p>

Assumpsit on a promissory note dated October 30th, 1822, for 0 500, payable to John Tyler on demand with interest, and indorsed to the plaintiff without recourse to the indorser. Plea, the general issue.

The indictment against the defendant set forth, that, without a license, he “ did presume to be a common seller of rum and other strong liquors by retail, and in his shop” did “ commonly and publicly sell and utter by retail, and did cause to be sold and uttered, by retail, rum and other strong liquors to divers good citizens,” &c. The defendant, having pleaded not guilty and been convicted in the Common Pleas, appealed to this Court.

<p>An amendment made by leave of court, by an officer, to his return on a writ, ca:inoi affect the rights of persons not parties to the suit, acquired before the amendment is made. 0</p> <p>An officer returned on a writ, that he had attached a piece of land of the debtor on a certain day. Before that day a mortgage made by the debtor had been placed on record. The officer afterwards, by leave of court, amended his return so as to date the attachment before the recording of the mortgage, though not before its delivery; and the land was seasonably set off to the creditor on an execution issuing in the case. Held, that the title of the mortgagee should prevail over that of the judgment creditor.</p>

<p>Assumpsit, for the rent of thirty tan-vats from October 10th, 1825, to December 1st, 1827, and also for money had and received.</p> <p>At the trial, before Putnam J., the following facts appeared in evidence.</p> <p>On June 7th, 1825, John Frye, who was then the owner of the land on which these and other vats are situated, mortgaged the same to the defendant, who, having obtained judgment on his mortgage for condition broken, took possession of the land on an hab. fac. poss. on March 9th, 1827.</p> <p>On August 14th, 1827, the plaintiff purchased the right of redemption, and received a deed of it from a person who had bought it at a sheriff’s sale on an execution against Frye.</p> <p>On September 11th, 1827, the plaintiff, as assignee of the mortgager, received an account from the defendant as mortgagee, of the amount due on the mortgage, paid the balance of the account, and received from him a deed of all his interest in the land as mortgagee, but “ excepting and reserving ” all his “ other right, title, and interest ” in the land. In this account the defendant did not allow any thing for the rent of the thirty vats, which is claimed in this action. It appeared from this account, that on October 4th, 1826, the defendant had received rent from Hart and Harris, who were tenants of a part of the mortgaged land, which he credited. The defendant, as mortgagee, had also claimed rent of the plaintiff for a number of tan-vats on a part of the mortgaged land, which the plaintiff had occupied under a lease for three years from Frye, dated April 1st, 1825, and the defendant, on May 28th, 1827, brought a suit for this rent, which was discontinued at the September term 1827.</p> <p>On September 24th, 1827, the plaintiff demanded rent of the defendant for the thirty vats, which he refused to pay.</p> <p>The defendant had had possession of the thirty vats during the time for which rent is claimed ; but he contended that he had a right to this possession without being accountable for rent, under a contract made by him with Frye, while Frye was owner of the land, dated October 10th, 1825. By this con tract Frye agreed to find vats, tools for tanning, and yard-room , the defendant agreed to find hides and bark ; each party was to do half the labor, and find half of every thing necessary to tanning; Frye was to pay half the interest of all money paid out by the defendant, until received by him again ; the defendant was to pay a dollar a year each for half of all the vats employed, and twenty-five cents a day for the bark-mill ; and the profits of the business, after paying the defendant his advances f°r hides, bark, &c. were to be divided equally between the Under this contract the defendant and Frye were concerned together in slaughter hides and buffalo hides, which were worked into the thirty vats. Frye, having become insolvent, absconded in the spring of 1826. It takes two years to tan out slaughter hides, and longer to tan out buffalo hides. On February 26th, 1826, Frye assigned eight of the vats to Elijah Upton, together with the packs of leather in them which belonged to Frye ; and Upton employed the defendant to tan out the hides thus assigned. The hides which Frye and the defendant were tanning required continued care and attention after Frye absconded. The vats assigned to Upton were cleared out in October 1827, when the leather was well tanned, the rest, about October 1828, at which time the leather was iti good order for the market. On a settlement of the business under the contract, Frye would be indebted to the defendant. The plaintiff knew of the defendant’s contract with Frye, before he bought the equity of redemption.</p> <p>, Judgment was to be given for the plaintiff or the defendant, according to the opinion of the whole Court.</p>

<p>This was an action of assumpsit for the proceeds of part of the brig Ann and cargo, formerly the property of Henry Prince and Henry Prince junior, the father and brother of the plaintiff, which the plaintiff claimed under an assignment from Henry Prince, dated August 18th, 1826. A trial was had before Wilde J.</p> <p>The assignment was an indenture between Hemy Prince of the one part, and George Hodges and the plaintiff of the other part. After a recital that Henry Prince is indebted to Hodges in the sum of $3000 and to the plaintiff in the sum of $4000, according to a schedule annexed, Henry Prince assigns to Hodges and the plaintiff one half of the brigantine Ann with her appurtenances, “being now at sea,” with the part of her cargo, and the proceeds thereof, belonging to him, to have and to hold to them respectively in the proportions which the sums of money due to them respectively bear to each other; and Henry Prince covenants with them respectively, that he is the lawful owner of the bargained premises, that he has good right to sell the same, and that he will warrant and defend the same to Hodges and the plaintiff against the lawful claims and de mands of all persons ; and he constitutes Hodges and the plain tiff jointly and severally his attorneys and attorney in the premises, to receive the property and settle all accounts, matters and things relative thereto, as they shall judge expedient; provided, that if Henry Prince shall pay the sums mentioned in the schedule, the indenture shall be void ; and Hodges and the plaintiff, for themselves respectively, covenant that so soon as the sums respectively due to them shall be paid, they will execute a reconveyance of the property assigned.</p> <p>The nominal defendants held the proceeds of the property assigned, under an agreement with divers creditors of Henry Prince, dated May 17th, 1827. The real defendants were the Oriental Insurance Company, claiming the vessel and cargo under an attachment made on May 10th, 1827, in an action upon a premium note given by Henry Prince.</p> <p>By the agreement last mentioned, between the attaching creditors, — the shippers of that part of the cargo which did not belong to Henry Prince and Henry Prince junior,— the assignees (including the plaintiff) of Henry Prince and Henry Prince junior, — the holders of a respondentia bond given by Henry Prince and Henry Prince junior, — and Shepard and Ropes, the nominal defendants,—it is provided, that Shepard and Ropes shall take possession of the brig and cargo and sell the same, as agents for all concerned and claiming any interest in the same, and from the proceeds shall first pay all charges upon the brig and cargo and all claims not disputed by the attaching creditors, and shall retain such part of the proceeds as those creditors shall allege to be the property of Henry Prince and Henry Prince junior, for the use of such persons as are legally entitled thereto ; that this arrangement and sale shall be without prejudice to the respective rights of any or either of the parties now existing by attachment, assignment, as shippers, or otherwise ; and Shepard and Ropes agree to pay over the net proceeds to such persons of the other parties, in such proportions as it shall be decided judicially they are entitled to, or as by any voluntary agreement, between the parties claiming and the attaching creditors, it shall be agreed to divide the same.</p> <p>The plaintiff produced the assignment first mentioned, and other evidence, in support of his claim, and then offered Henry Prince as a witness ; who was objected to, and in that stage of the cause rejected, on the ground of his liability under the covenants in the assignment.</p> <p>The defendants produced evidence for the purpose of showing that the debt of the defendant was not bona fide.</p> <p>The plaintiff then, to rebut the presumption of fraud and to prove the consideration of the assignment, again called Henry Prince, and he was admitted to testify ; and on his cross-examination, the defendants were allowed to inquire of him as to the consideration of Hodges’s demand, and he disclosed that the provision for Hodges, in the assignment, was to secure a note for $ 3000, given without consideration and for the benefit of the witness, but that the plaintiff knew nothing of this; that he had never paid the plaintiff any thing on account of his services in the Ann, which services were performed as stated in an account in the case, and that when the assignment was made he supposed there was something due to the plaintiff, besides the amount of a note dated March 26th, 1826, for $3568 on demand with interest, given by the witness and Henry Prince junior to the plaintiff, for the balance of his account for services and commissions in the brig Ann.</p> <p>Joseph H. Prince, an attorney at law, testified, that before he drew up the assignment, he had, by request of the plaintiff, made an attachment against Henry Prince and Henry Prince junior to secure the plaintiff’s debt, which the plaintiff stated t0 be about $ 4000 ; that he understood from the plaintiff, when he was requested to make the assignment, that his claim consisted of the abovementioned demand for services and commissions, and also some money of the plaintiff in the hands of D. L. Pickman, N. and Z. F. Silsbee and R. Stone.</p> <p>Pickman testified, that he and the Silsbees and Stone were shippers in the brig Ann ; that they had paid their part of the commissions to Henry Prince junior as agent, he having had the management of the business of the voyage ; that at the time of the assignment there was a sum due to the plaintiff and Millet, the master of the Ann, on account of a shipment of tin at Java in an invoice of theirs, in which the plaintiff and Millet were interested, which, with part profits, amounted to $337, the account concerning which was settled with the plaintiff and Millet in August 1827 and paid to them.</p> <p>It did not appear that there was any particular reason whj the plaintiff’s commissions should be paid by Pickman and others to Henry Prince junior in the first instance, otherwise than that it was their practice, and Henry Prince junior’transacted the business of the Ann. Nor did it appear, otherwise than by such practice and the other evidence before stated, that money thus paid to Henry Prince junior had ever been considered as received by him and Henry Prince as partners or jointly, nor that they ever had jointly paid or received any such money, or otherwise ; but it did appear that Henry Prince junior was the agent for the owers of the vessel.</p> <p>Joseph H. Prince, who was again called by consent, after the argument of the defendants’ counsel, said that Hodges requested him to draw an assignment ; that his father, Henry Prince, afterwards wished him to secure the plaintiff; that he had before attached real estate for the plaintiff, at his request, on a writ against Henry Prince and Henry Prince junior for $ 4000 ; that the assignment was executed first by his father, then by Hodges, then by the plaintiff; that he did not know any thing about the consideration of Hodges’s note ; that Hodges and the plaintiff were never at his office together ; that when the writ was filled up, no account was before him, but the plaintiff said that about $4000 was the amount due ; that the plaintiff had been much in want of money, and he had lent him some himself, and had borrowed money to pay his expenses to Baltimore, where he now resided ; and he stated, but not in answer to any interrogatories to that point, that the plaintiff had often complained, before the lime of making the writ, that his father and brother were indebted to him. After the witness stated this, the defendants’ counsel objected to it, but the judge overruled the objection.</p> <p>The defendants’ counsel contended that this action could not ue maintained, because it was not brought by the plaintiff as survivor of Hodges.</p> <p>The jury were instructed, that the action in the present form would lie ; and they were directed to consider, whether the transaction on the part of the plaintiff was fraudulent in the whole or in part; that if a part of his demand was fraudulent, it would avoid the whole transaction ; that the assignment to Hodges was fraudulent in law and void, but that a distinction was to be made in cases of an assignment for the benefit of several parties, for it might be good as to one party and void as to another ; that the circumstance of the want of consideration in the case of Hodges, would have a tendency to throw suspicion upon the plaintiff’s demand, but that if it was proved that the plaintiff had not any knowledge of it, it should not affect his claim ; that the strongest circumstance was, that the sum mentioned in the assignment was about $ 400 more than the note, which if the plaintiff knew it not to be due, would avoid the whole, but if it was included in the assignment by any mistake merely, it was not fraudulent; that the jury should take all the circumstances into consideration, and if they were satisfied there was fraud, the plaintiff could not recover ; that if they believed the transaction to be honest, they should consider what was really due to the plaintiff, and return a verdict for such a proportion of the amount in the hands of the defendants as the amount due to him would entitle him to.</p> <p>The jury returned a verdict for the plaintiff.</p> <p>The defendants moved for a new trial : —</p> <p>1. Because Henry Prince was admitted to testify in behalf of the plaintiff, being incompetent from interest in the event of the suit.</p> <p>2. Because the judge instructed the jury, that unless the plaintiff was privy to the transaction with Hodges, it ought not in any manner to operate against the plaintiff’s claim.</p> <p>3. Because the plaintiff and Hodges, by the assignment, take as tenants in common, and ought to have been joined in an action for the property conveyed by it or the proceeds thereof, and the same matter which is a defence as to both, is a defence as to either.</p> <p>4. Because the plaintiff sues, in point of law, as the survivor of Hodges, and the same matter which would be a defence to an action brought by both, is a defence to this action.</p> <p>5. Because Joseph H. Prince was admitted to testify in behalf of the plaintiff, to conversations between him and the plaintiff, in which the plaintiff stated that Henry Prince and Henry Prince junior were indebted to him, and in which the witness, upon these statements, advised the plaintiff to commence an action, the same conversations having been had, not at the time of making the plaintiff’s writ, but at other times, long before.</p> <p>6. Because the verdict is against the weight of the evidence, upon the point of the excess of the debt. mentioned in the assignment over that attempted to be proved.</p>

<p>Where individuals, having a design to be incorporated for the purpose of creating a water power, cause surveys and estimates to be made of the water power which can be created, and thereupon represent it to be greater than it really is, but without any intention to deceive, persons who subscribe for stock in the corporation upon the faith of such representations and agree to be personal!'* liable for assessments, cannot avoid the contract on the ground of the mistake.</p> <p>Where an act of incorporation required that the capital stock should consist of 6000 shares, and that the whole number should be subscribed for before an assessment should be laid, and 30 of the 5000 shares were subscribed for by A. on account of B., but without authority, it was held, that the capital stock was not all taken up in such a manner as to authorize the corporation to lay an assessment; the effect of A.’s subscription being not to make him a member of the corporation, but only to subject him to a special action of the case for damages.</p> <p>If all the shares in such a corporation are taken up by solvent persons, the unexpected insolvency of some of them, whether before or after the corporate powers have been exercised, will not deprive the corporation of the power to lay assessments.</p> <p>But where only a part of the shares were originally taken up, and some of the subscribers became insolvent, and in laying an assessment to defray preliminary expenses, (which was allowed by the act of incorporation,) the insolvent subscribers were not assessed, and afterwards additional subscribers were obtained, it was doubted whether the corporation could consider the insolvent persons as stockholders.</p> <p>Whether in a case where by an act of incorporation the shares in the capital are made liable to be sold for non-payment of assessments, and the subscribers to the stock sign an agreement making themselves liable personally to a certain amount, a vote of the corporation, that the subscribers shall be liable personally for only a part of such amount, will have the effect to discharge a dissenting subscriber entirely from his personal liability, qucere.</p>

<p>This was assumpsit for a breach of contract of the defendant in quitting the service of the plaintiff, in which he was engaged as a weaver, without giving a fortnight’s previous notice.</p> <p>In the Common Pleas, where the parties agreed upon a case, a nonsuit was directed ; and the case was brought before this Court by exceptions.</p> <p>The facts, as agreed by the parties, are as follows.</p> <p>On the 3d of-July, 1828, Reeves, the defendant, came to the woollen factory of the plaintiff in Andover, and asked the overseer of the weaving room “ if he had a loom idle,” and on being answered in the affirmative, engaged to work on a loom there. On the second week of Reeves’s engagement, he left his work at the factory without notice or leave, and was absent two or three days, and then returned and resumed his work. Reeves was paid for his work by the piece, at the same rate a yard as the other weavers in the same factory. When he had earned about ten dollars, Stevens, at his request, paid him that amount. At the time Stevens made this payment be knew, but not from Reeves himself, that Reeves had engaged a loom in another factory. About the 21st of July, Reeves left the employment of Stevens without his consent, and without having given any previous notice to Stevens.</p> <p>No agreement was made between the parties as to the price that Reeves should receive for his labor, nor as to the time that he should continue in Stevens’s employment, other than may be implied from the circumstances of the case. It was proved that it was the usage in Stevens’s factory, to give a fortnight’s notice before quitting, and this was generally understood by the workmen. But Reeves had no information given him of this usage, and there was no notice of it posted up ; and it is not usually communicated to those who labor in the factory, at the time of their engagement. It was proved that there was a similar usage in other factories in the vicinity, and that notice of it was commonly posted up with other rules. In every factory there are certain rules for the regulation of the workmen, in respect to their quitting the factory.</p> <p>Reeves constantly follows the occupation of a weaver, but at the time when he was engaged by the plaintiff he had just arrived in this country.</p> <p>Stevens sustained an actual damage in consequence ol Reeves’s quitting his service.</p> <p>The case was argued in writing, by Spaulding, for the plain tiff, and Crosby, for the defendant.</p>

<p>The by-laws of a corporation required that all transfers of shares should be made in a book to be kept by the treasurer. Held, that an assignment of shares by the deed of the vender, accompanied by a delivery of the certificates to the vendee, was valid, without any transfer on the books of the corporation, not only between the vender and vendee, but against a creditor of the former, who attached the shares before any notice of the sale had been given to himself or to the treasurer of the corporation.</p> <p>It seems that the vendee could not compel a payment of dividends, or claim a certificate from the corporation, without first applying to have the transfer made according to the by-law.</p>

This was a scire facias brought in the Common Pleas upon a recognizance, the condition of which was, that George Lane, who was licensed to retail spirits, should observe the laws relating to such retailers, for one year. The declaration alleged, that Lane had been convicted of breaking the laws in that behalf made and provided, as appears of record, by which means the recognizance was forfeited. The defendant pleaded, 1. Nul tiel record, on which issue was joined : 2.

<p>Bill in equity. The case was argued in June 1829.</p>

<p>This was aa action on the case against the defendant for obstructing and preventing the plaintiffs from bringing vessels up to their wharf and laying them in a dock on the north side of the wharf. The defendant pleaded the general issue ; also a special plea of soil and freehold in the dock and flats adjoining the plaintiffs’ wharf, and that of his own right he drove down piles, &e. ; to which the plaintiffs replied, (protesting that the flats were not the soil and freehold of the defendant,) that the defendant of his own wrong drove down the piles. Is«ue was joined on both pleas.</p> <p>The cause was tried before Parker C. J.</p> <p>The plaintiffs produced a deed from the Commonwealth of Massachusetts to Parsons and Sargent, dated December 10th, 1779, of the wharf, formerly the property of Thomas Hutchinson, governor of Massachusetts, bounded north on the dock, and they proved title in themselves in the wharf and appurtenances, as the same were conveyed by the Cbmmonwealth. It was admitted that Hutchinson wbnt to England in 1774 and never returned to Boston, and that his estate here was confiscated.</p> <p>The defendant was a shipwright. He owned the dock, and likewise the upland adjoining, which he used as a shipyard.</p> <p>Much evidence was introduced on each side, to show the use which both parties and their predecessors had made of the wharf and dock.</p> <p>The chief justice directed the jury, that the claim in this ease was founded on the supposition, that the plaintiffs were entitled to an incorporeal right of easement in the doctt, as set forth in their declaration ; that in order to establish their claim, it was not requisite for them to produce any deed or to prove that one ever existed, the rule being, that twenty years’ occupation alone is sufficient ground of presumption, that the occupation began in virtue of a compact between the parties : — but this rule is to be applied only in cases where all the legal qualities of such a right are proved to exist; one is, that the occupation must be uninterrupted by the owner of the land another is, that the occupation must be really adverse, that is not by reason of any permission, license, or indulgence of the owner.</p> <p>The jury were further directed, that if Hutchinson possessed the right now claimed by the plaintiffs, twenty years before he left the country, it was so established and could not be defeated by any thing short of twenty years’ obstruction ; ana the right, if so gained, passed to Parsons and Sargent. The burden of proof was on the plaintiffs to show that the occupation they enjoyed was by right or claim of right If the jury were of opinion that Hutchinson exercised the right for twenty years before he went away, it was enough ; but if his right, or the exercise of it, began in 1762 or 1767, (as the defendant contended,) it was insufficient, and the plaintiffs must then resort to the evidence of their occupation since the purchase bj Parsons and Sargent ; and here they were bound to show an uninterrupted adverse occupation by themselves for twenty years ; they could not avail themselves of the period of occupation by Hutchinson before the revolutionary war, in connexion with their own subsequent occupation, because of the interruption from 1774 to 1780.</p> <p>The jury returned a general verdict for the defendant. The plaintiffs moved for a new trial, because the verdict was against the weight of the evidence, and because the foregong instructions were erroneous.'</p>

William Lovering junior complained that he was restrained of his personal liberty by Henry H. Huggeford, and prayed for a writ of habeas corpus, which was granted. Huggeford made return, that as a deputy sheriff he held Lovering in custody upon an arrest made on the 15th of March, by virtue of an execution.

This was a writ of right, commenced in 1825, for tne recovery of one undivided sixth part of certain land. The mise was joined on the mere right. A verdict was found for the tenants at November term 1826, and at March term 1827 a new trial was granted. At November term 1828 a second verdict was found for the tenants, and the demandant moved for a new trial.

Assumpsit on a promissory note, dated January 23d, 1824, for $2233,33, payable to James White or order in one year, with interest semiannually, and by White indorsed to the plaintiff. Trial before Wilde J. The interest on the note had been paid by the defendant as it became due, the last payment being in January 1827.

<p>Assumpsit to recover the balance of an account annexed to the writ; there being also a count for money had and received.</p> <p>The defendants were John Winship, Amos Binney and John Binney. Winship was defaulted, and the other defendants pleaded the general issue.</p> <p>The plaintiff gave in evidence three memorandum checks signed by Winship, one dated May 19th, 1825, for $2000, another, May 26th, for $3000, and the third, July 12th, for $ 400. It was proved that the amount of the checks was received at a bank by Winship, on checks of the same dates signed by the plaintiff, he having deposited money there, which he had then recently received as guardian to his children.</p> <p>The principal question in the case was, whether the Binneys were indebted for this money as copartners with Winship, it being admitted that a copartnership actually subsisted in the manufacture of soap and candles ; which was carried on at Charlestown in the name of Winship alone, according to the articles of copartnership.</p> <p>To prove the liability of the Binneys, the plaintiff gave in evidence the following letter, dated May 25th, 1825, from Winship to the plaintiff: — “ Can you further oblige me with the loan of 3000 dollars to-morrow, for a short time ; it shall be returned with the other loan, as soon as you wish to invest it permanently. You may rest perfectly safe as to security, as the Mess. Binneys are abundantly able to meet any of my engagements ; this money, as well as the other a few days since, being for the use of the factory in which I am engaged as co-partner with them.”</p> <p>The plaintiff attempted to show by parol testimony, by the ftooks of the manufacturing company, and by invoices of property shipped in various vessels to foreign ports which were entered in the books of the company kept by Winship, that the money borrowed of the plaintiff was applied to the use of the company. The defendants attempted to rebut this, by testimony relating to the capital advanced by the Binneys, their ignorance of the particular transactions of Winship, and the large sums raised by Winship without their knowledge; and they insisted that it appeared by the books, that there had been but two shipments of any other articles than soap and candles (and that these were the proceeds of soap and candles shipped abroad) before February 1st, 1825 ; and that these invoices were entered in the books in April 1825.</p> <p>On the 15th of September, 1825, public notice was given, that the copartnership was dissolved, and that their concerns would be settled by Amos Binney.</p> <p>On this part of the case the jury were instructed as follows:— A copartnership is proved, which, though not made public by advertisement, is generally known, and is proved by written articles between the parties. It is however limited to a particular branch of business, but that is capable of great expansion, within the intent and meaning of the parties. The products of the factory might be, and no doubt were intended to be, shipped to foreign markets, particularly the West Indies, and the proceeds then might be invested in the produce or manufactures of that market, and there shipped to a European market, from which returns might be made in produce or manufactures or in bills of exchange on London or elsewhere, and thus the parties in the soap and candle manufactory would become extensive merchants, and the copartnership would extend throughout the whole adventures until their close at the home port. This business would naturally associate itself with others,</p> <p>for a cargo of soap and candles only, to the West Indies, might come to a bad market, and the shippers would be likely to take an assorted cargo, with the view of saving on one article what they might lose on another. And this extension of the business, if known to the members of the copartnership, or if, from the circumstances, presumed to be known, would undoubtedly be for the benefit or to the disadvantage of the whole. Credit therefore would probably be wanted, as was expected by all, it being provided in the articles and the bond from Winship to the Binneys, that indorsed notes should be given. Now as the partner, whose name is assumed by the firm, may also engage in other branches of business, in which he may want credit on his own private account, if he applies for a loan of money to one who is ignorant of the copartnership, and no information is given of its existence, it is a private loan, and does not bind the firm, unless the creditor shall know that the money borrowed or the goods procured by the individual went to the use of the firm. The burthen of proof in such case is upon the creditor, in order to make good his claim upon the firm ; for he credited the individual and not the firm, and it will be presumed to be for the private benefit of the individual, unless the contrary is proved. But if the existence of the firm is known to the person who makes the loan, and representations are made to him by the borrower, that he borrows for the use of the company, and that they are answerable for the debt, so that credit is given to the company and not to the individual partner, the burthen of proof is upon the company, when sued, to show that the power confided to the individual has been abused, and that the money borrowed was applied to his private use, and also that this was known to the lender to be his intention. This principle necessarily follows from cases settled. If a purchase is made in the name of a firm, or money borrowed, and a note given or indorsed in that name, this is primó facie evidence of a debt from the firm, and it can only be rebutted by proof in the defence, that this was fraudulently done by the individual partner for his own private use, and that this was known to the creditor. So that in the limited partnership, if the name of the firm had been John Winship & Co., or Winship & Binney, all notes given to any creditor, in either of those names, would be company notes, unless disproved, as before stated. Now the making and offering of such a note is nothing more than a representation that the money is wanted for the use of the company, and as they confide in the individual, they will be bound by his acts. The name of the firm here being only the name of the individual, a note offered in that name, unaccompanied by any representation, would of course import only a promise by John Winship alone, and the credit being given to him alone, the creditor would not recover against the firm, without proving that the money actually went into the funds of the firm. But if the borrowing partner states that he is one of a company, and that he borrows money for the company, or purchases goods for their use, then, as there is such company, and as they have given him authority to use the company credit to a certain extent, and as the creditor will have no means of knowing whether he is acting honestly towards his associates or otherwise, if he lends the money or sells the goods on the faith of such representation, the company will be bound, unless they prove that the contract was for his private benefit, and known to be so by the creditor. And in this case the representation contained in the letters from Winship to the plaintiff is quite sufficient to throw the burthen of proof on the defendants.</p> <p>It further appeared, that Winship conveyed a dwellinghouse to the plaintiff as security for his demand, and that in Novembe 1825, the plaintiff paid $ 400 to one Thompson, to discharge an attachment which Thompson had made upon the house. There were other attachments not then known to the plaintiff, which eventually took the whole property in the house.</p> <p>In the plaintiff’s account, Winship was credited with $ 637 for cash lent at divers times. The jury were instructed that this sum of $ 400 ought to be set off against the $ 637,1 as it was yaid to discharge an incumbrance on property taken as security, and believed at the time to be free from any other incumbrance.</p> <p>Winship likewise assigned to the plaintiff a quantity of soap and candles, with general power to sell the same, and account to Winship therefor, applying the proceeds first to the payment of his demand. The plaintiff made a sale to one Tappan, on a credit of six months, and took in payment a bill upon Holbrook & Dexter, then in good credit, which was duly accepted but never paid, the acceptors having become insolvent before the bill became due. It was proved that a sale on a credit of . six months was according to usage ; and the jury were instructed that the plaintiff should not be charged with this loss, if they were satisfied that it was usual to sell on credit, and that the credit of Holbrook & Dexter was good at the time when the bill was taken.</p> <p>In regard to interest, the jury were instructed, that if they were satisfied the money was borrowed under an engagement tcreturn it in a few days, and it was not returned, but on the contrary the debtor refused or became unable to pay at all, this was such a breach of trust as would entitle the lender to receive interest; certainly after a demand; and that the necessity of taking an assignment of property and actually taking it, was equivalent to a demand.</p> <p>A verdict was returned for the plaintiff.</p> <p>The defendants moved for a new' trial, because there was no evidence that the money obtained on the checks went to the use of the company, and the judge erred in charging the jury, that inasmuch as Winship, when applying for the money, represented that he wanted it for the firm, the plaintiff was not bound to show that it was so wanted, or went to the use of the firm ; whereas the jury should have been instructed, that in a dormant copartnership, where the active partner has taken up money in his own name, it is incumbent on the plaintiff to show that the money went to the use of the firm, whatever may have been the representations.</p> <p>Also, because the judge erred in charging the jury, that the plaintiff had a right to set off .the $ 400 paid by him to Thompson m November 1825, Amos Binney having been before that time constituted the settling agent of the concerns of the firm, and that fact being known to the plaintiff.</p> <p>Also, because the judge erred in charging the jury, that the plaintiff was authorized to sell upon credit the goods of the firm pledged to him by Winship as collateral security, whereby the sum of $480 was not allowed by the jury to the defendants.</p> <p>Also, because the judge erred in instructing the jury to allow the plaintiff interest on the checks, the action being for money had and received, and no special promise alleged, and no demand having ever been made on the defendants until this suit was brought.</p>

<p>This was an action on the case against the defendant a^ keeper of a common inn in Boston. The declaration alleged that the plaintiffs, being owners of a horse, chaise and harness, sent Lydia Giles, their servant, who was received by the defendant as a guest, with the horse, chaise and harness, in his inn, and that the defendant, by the custom of the land, was bound to keep the chaise &c., without diminution, pilfering or loss, but that, by the negligence of the defendant and his servants, certain malefactors stole the harness, and so the plaintiffs lost the same.</p> <p>The defendant pleaded the general issue.</p> <p>At the trial in the Common Pleas, before Ward C. J., it was proved that Lydia Giles hired the horse &c. of the plaintiffs, and drove the same to Boston to the house of one Abrams, where she stayed as a visitor, and sent the horse &c. to the stable of the defendant, who was an innkeeper, to be kept during her visit. The harness was put into the chaise under the defendant’s shed, and it was proved that the defendant usually put and kept the chaises and harnesses of his guests, and also his own, under the same shed, and that during the time the plaintiffs’ chaise and harness remained there, the gate of his yard, including the shed, was fastened and secured in the usual manner, namely, from nine o’clock in the evening until daylight. At the end of four days, when Lydia Giles sent for the horse, &c. the harness could not be found, and was supposed to have been stolen ; whereupon the plaintiffs claimed of the defendant the value thereof in damages, and afterwards brought this action to recover the same.</p> <p>The defendant produced witnesses, who testified that his shed was secured like many others in Boston, and as it had been for many years, without any similar loss having occurred. Lydia Giles was in no way connected with the plaintiffs, ex cept merely as having hired the horse, chaise and harness. The defendant usually kept several horses at livery, and he usually had horses belonging to guests. He received pay in the present case and in all such cases, only for the keeping of the horse, and received no more therefor than he would in the case of a horse being placed in his stable without any chaise or harness.</p> <p>Upon this evidence it was contended, that the defendant was not liable, unless the plaintiffs proved negligence in him or his servants ; that the plaintiffs had not proved the allegation in their writ, that they by their servant had been entertained by the defendant as his guests ; but that the defendant in fact merely received the horse, chaise and harness to keep at livery, and not as innkeeper. It was likewise insisted, that the custom of the realm or common law of England, making innkeepers liable in all cases of loss except from the act of God and the king’s enemies, is not the law of this Commonwealth.</p> <p>The jury were instructed, that innkeepers were entitled to a certain privilege, had a lien on the effects of their guests to secure payment for the accommodations which were furnished them, and were by law bound in all events to keep the effects of their guests safely ; that in order to make them responsible for the loss of any thing which had been committed to them by their guests, it was not necessary to prove that they were chargeable with negligence in keeping it, and that unless the loss arose from the act of God or the common enemy, it would fall on the innkeeper and not on the guest; that the plaintiffs having the general property in the horse, chaise and harness, which were committed to the defendant, they could maintain the action against him as well as if they had committed them to the defendant themselves under the same circumstances under which they were committed to him by L. Giles, and that t0 constitute the plaintiffs or L. Giles guests of the defendant, so as to make him answerable for the loss of the harness, it was not necessary that the plaintiffs or L. Giles should diet and lodge in his house ; but that the standing of the plaintiffs’ horse in the defendant’s stable and being fed by him for gain, would make the defendant responsible for the safe keeping of the harness of the horse, as much as he would be for the baggage of a guest, and that it was not necessary for the plaintiff to prove that the defendant received any thing expressly on account of keeping the harness.</p> <p>The jury were further instructed, that the defence set up by the defendant, that he kept a livery stable as well as a tavern, and that he received the horse, chaise and harness as a keeper of a livery stable and not as an innkeeper, could not avail him ; and having hung out his sign and held himself out to the world as an innkeeper, and having made no communication at the time to the person who committed the horse, chaise and harness to him, that he received them as keeper of a livery stable and not as innkeeper, he could not now qualify the receipt of them by showing that he kept a livery stable as well as an inn.</p>

Writ of entry, (or the recovery of land in Nantucket. The demandants counted on their own seisin, and a disseisin by the tenants. Plea, that the tenants did not disseise. At the trial, before Wilde J., the demandants gave in evidence a deed of the demanded premises, dated October 21st, 1822, made to them by Elisha Raymond, administrator of the estate of Ebenezer Raymond, who died intestate, seised of the demanded premises in fee simple.

<p>This was a writ of scire facias, in which it was alleged that at March term 1827 of this Court," Coffin the plaintiff recovered judgment against the goods and estate of Nathaniel Russell, late of Nantucket, deceased, in the hands and under the administration of Cottle the defendant, for the sum of $1523 debt and $ 97 costs; that an execution was issued, returnable in November 1827, and that payment of it was demanded of the defendant, but that he refused to pay it, and that he had committed waste; and he was required to show cause why execution should not issue against him de bonis propriis.</p> <p>The scire facias was returnable at March term 1828. At that term the defendant filed two pleas. He pleads first, that havin0 .;een duly appointed administrator, he represented the estate to be insolvent ; that commissioners were appointed ; that the plaintiff laid his claim before them and they allowed only a part of it, viz. $ 805 ; that he gave notice of his intention to prosecute his claim at common law ; that he accordingly brought his action, and at March term 1827 of this Court recovered judgment for $ 1523 and costs, against the estate of the intestate in the hands of the defendant as administrator; that the execution on this judgment issued improvidently, irregularly and contrary to law ; that the defendant has duly settled his account of the estate, and has allowed all the proceeds of the estate which have come to his hands or knowledge, in order that the same might be distributed and paid agreeably to law ; that the estate is in fact insufficient to pay all the debts allowed by the commissioners, including the judgment recovered by the plaintiff, which was duly added to the commissioners’ report; without this, that the defendant has committed waste.</p> <p>The defendant pleads secondly, that since the rendition of the plaintiff’s judgment, it has come to the knowledge of the defendant, that Isaac Coffin, judge of probate for the county of Nantucket, by whom the letters of administration were granted, was at the time of granting the same, and still is, a creditor of the estate of Russell, and has presented his claim as such, and so is interested in the estate, and being so interested therein, the judge had no jurisdiction over the same, but that at the time of granting administration and ever since, the jurisdiction pertained to the judge of probate for the county of Barnstable, and so the proceedings of the judge of probate for Nantucket are and were absolutely void, and the defendant never was administrator and never did administer or intermeddle with the estate of Russell.</p> <p>At November term 1828, the plaintiff filed his replications. To the first plea he replies, that the defendant did negledt to exhibit and settle his account of his administration within six months after the report of the commissioners had been made to the judge of probate, so that by reason of such neglect the judge could not proportion the estate among the creditors, and the judge did not allow any further time for exhibiting and settling such account ; whereupon the plaintiff, being a creditor, did prosecute his suit wherein the judgment was rendered, then already commenced, unto final judgment, which judgment was therein rendered and execution awarded thereon, in the same manner as if the estate had not been represented insolvent, whereupon execution did issue and has been returned as alleged in the scire facias, and the defendant has wasted the g°°ds and estate of Russell as alleged in the scire facias.</p> <p>To the second plea the plaintiff replies, that before the commencement of the suit upon which the judgment was rendered, viz. on April 9th, 1824, it did come to the knowledge of the defendant that the judge of probate for Nantucket was a creditor of the estate and had presented his claim as such creditor, and that after notice thereof the defendant did administer and intermeddle with the goods and estate which were of Russell at ,the time of his death.</p> <p>At the same November term, the defendant rejoins to the first replication, that within six months next after the commissioners made their report, viz. on. the 23d of the same April, the defendant did exhibit to the judge of probate a true account of his administration, which the judge allowed and settled , that on the 20th of June then next, he obtained license to sell real estate of the deceased, for the payment of his debts, and in pursuance thereof he did sell the whole of the real estate, and afterwards, on the ISth of January, 1827, and before the plaintiff had recovered his judgment, and before the same was added to the list of claims allowed by the commissioners, to be paid in due proportion out of the estate of the deceased, the defendant exhibited his second account of administration, comprehending therein all the moneys received by" him for the real estate, to the end that the judge of probate, so soon as the list of claims could be completed, might proportion the same among the creditors, and that the defendant’s account was allowed by the judge and duly settled ; without this, that the defendant neglected to exhibit and settle his account within six months after the report of the commissioners had been made.</p> <p>To the second replication the defendant rejoins, that after notice that the. judge of probate was a creditor, the defendant did not administer or intermeddle with the goods and estate which were of Russell at the time of his death ; concluding to the country.</p> <p>At the same term the plaintiff surrejoins by tendering an issue to the country upon the traverse in the first rejoinder, and by joining issue on the second rejoinder, and the defendant joins issue on the first surrejoinder.</p> <p>During March term 1829, viz. on June 19th, the defendant filed a plea, alleging, among other things, that after the last continuance of this cause, viz. on the 10th of March, 1829, the defendant was duly appointed administrator on the estate of Russell, by the judge of probate of Barnstable county, who had and still has exclusive jurisdiction thereof by reason of the interest of the judge of probate for the county of Nantucket in the estate of the deceased, as a creditor thereof, and afterwards, viz. on May 19th, 1829, at a probate court for the county of Barnstable, the defendant, having received a list of the claims due from the estate, represented the estate to be insolvent; whereupon commissioners were appointed with power, during six months, to receive and examine all claims of the creditors ; that the commissioners gave notice of the times and places of their sitting for that purpose ; that they have not yet made a report, the period assigned for the performance of their duties not having elapsed ; without this, that the plaintiff has wasted the estate as alleged in the writ of scire facias.</p> <p>To this plea the plaintiff demurred generally.</p>

This was a writ of entry, in which the demandants claimed two undivided third parts of a small piece of land in Devon-shire street, in Boston, with a building on it, and also of a chamber in a stable adjoining the land. The demandants counted on a devise of the demanded premises made by Abiel Smith to Barney Smith for life, remainder .in fee to the demandants and the tenant, into which the tenant had intruded on the death of the tenant for life and kept the demandants out.

Indebitatus assumpsit for work done, materials found, money paid, Sic., brought against the defendant jointly with William Payne, who died after the action was commenced.* At the trial before the chief justice it appeared, that in 1821 the plaintiff was employed by Perkins and Payne to build a hotel at Nahant, which was begun in that year and finished in 1823.

Assumpsit. The declaration alleged, that the defendant employed one Newell, a housewright, to build for him a house ; that Newell was to do all the work and find all the materials, and the defendant was to pay him therefor the sum' of $ 1400, when the house should be completed ; that Newell being indebted to the plaintiff in the sum of $790, partly for materials supplied and used for building the house, and being desirous of purchasing more lumber to finish the house, the…

This was an action on the case against the defendant as sheriff, for the wrongful acts of one Freeman, his deputy.

<p>The parties stated a case, by which it appeared, that on May 11th, 1829, the plaintiff, an inhabitant of the city of Boston, at an election of representatives to the general court, tendered a printed vote for fifty-five persons, the number to be chosen, which the defendants, the warden and inspectors of ward No. 7, in which he resided, refused to receive. The defendants did not believe this to be a sufficient legal vote, because it was a printed one, and they rejected it solely on that account. If the vote was a legal and sufficient one, the defendants were to be defaulted, and damages were to be assessed bv the Court.</p>

<p>Replevin of a model of the state-house and a model of 'Westminster Abbey, in shell-work. The defendant, in his plea, traversed the allegation of property in the plaintiff, and issue was joined thereon.</p> <p>The plaintiff, to prove his property, offered the deposition of Robert Henry, in which it is stated, that Wood, for the accommodation of Henry, indorsed a promissory note signed by Henry and held by Jonas Coolidge, for $ 1156, dated September 25th, 1826, payable in six months, and that on October 3d, 1827, Henry mortgaged to Wood the shell-work replevied, with other property, on condition that if Henry, within twelve months, should discharge so much of the note as Wood should be obliged to pay as indorser, the assignment should be void ; but that until default in the performance of the condition, Henry should retain possession of the property, and have power to sell it and apply the proceeds to the payment of the note ; and that by an instrument dated in June 1828, the transfer was made absolute. The deponent states, that he put t^le shell-work into the hands of Braynard to dispose of by a lottery ; that there were to be 600 tickets at three dollars each, and that Braynard was to have 100 tickets for his services and expenses ; that the deponent had received money froiy Braynard at different times, on account of the shell-work, he thought not exceeding $60 or $70, which was to be accounted for when the lottery was drawn ; that Braynard defrauded the deponent, and after the drawing, by Braynard’s account, only $ 100 was due to the deponent ; and that the deponent was insolvent. To the cross-interrogatory,— “ If Wood recovers of Braynard in this action the shell-work sued for, will Braynard have any claim on you for it, or for the debt you owed him” — the deponent answered, — “ I should not think hr had, as he has completely deceived me, and now holds posses sion of four of the articles of shell-work valued at 400 dollars.” To the cross-interrogatory, whether the deponent was not interested in the event of this action, the deponent answered,— “ I am certainly interested in the event of this action, •for if Wood prevails, I shall have the pleasure to know that he will be partly paid for the money which he was bound for to Jonas Coolidge.”</p>

Assumpsit on the common money counts, and on an account stated. Trial before Parker C. J. It appeared that on May 7th, 1823, the plaintiff and the defendant became joint owners of the brig Sarah Maria, and continued so for several years. She was employed in voyages to the West Indies, with cargoes owned by them jointly, and was commanded by the plaintiff as master.

Debt on a probate bond given by Elizabeth Durell on taking letters of administration on the estate of her deceased husband. The action was brought for the benefit of a creditor of the estate, who had obtained an execution against the administratrix personally, on a scire facias issued for that purpose, for waste of the estate. This action on the bond was entered at March term 1829, and an appearance was entered for the defendant.

This was an action of debt, in which the plaintiffs declared upon an indenture made between the parties on the 23d of February, 1829. The declaration also contained counts for money paid, money had and received, and for goods sold and delivered, and work and labor performed.

<p>Assumpsit on the common money counts, and for goods sold and delivered. Plea, the general issue.</p> <p>Upon the trial, before Wilde J., the following facts appeared in evidence. In November 1822, the plaintiff applied to Baker & Hodges to purchase for him a ship for a contemplated voyage to South America. They purchased the ship Canton; and also a few articles intended to be shipped as a part of the cargo. The plaintiff shortly after sold one half of the ship to the defendant, and it was agreed that they should furnish and be interested, each one moiety, in the cargo and voyage. It was further agreed, that the ship should be fitted out under the agency of Baker & Hodges ; and in order to raise the necessary funds to meet the advances to be made by Baker & Hodges, two bills of exchange, one for $ 20,000, the other for $ 5,000, were drawn by the plaintiff on the master of the Canton at Valparaiso, and indorsed by the defendant, for the purpose of being negotiated with the secretary of the navy of the United States, the proceeds to be placed in the hands of Baker & Hodges, for the joint account of the plaintiff and the defendant. On receiving the indorsement of these bills of exchange, the plaintiff gave the defendant therefor the following receipt, dated November 26th, 1822 : — “ Received of R. J. Cleveland two sets of exchange &c., which I am to negotiate with Smith Thompson, secretary of the navy of the United States ; which money I am to deposit with Baker & Hodges our joint account in an expedition to the Pacific ocean in the ship Canton.” The plaintiff was able to negotiate only the bill for $ 20,000 with the secretary of the navy ; which was done at a discount of six per cent; and the plaintiff accordingly received $ 18,800, the whole of which, except $300, he soon after paid over to Baker & Hodges, and at a subsequent period he paid over the $ 300. The balance of the out-fit beyond the $ 18,800 was advanced by Baker & Hodges and the master of the Canton, on the credit of the ship and cargo or of the owners. The voyage being attended with great loss, the bill came back protested. The defendant was not duly notified of the non-acceptance or the non-payment of the bill. The ship returned to New York, in October 1824, and was there sold, together with the whole cargo, under the direction of Baker & Hodges ; and after deducting what was due to them and the master for their advances, there remained in the hands of Baker & Hodges a balance of $ 11,282-50. On December 22d, 1823, the defendant’s moiety of this balance was, by his direction, paid over to the plaintiff by Baker & Hodges ; and on the same day the defendant placed in their hands the note of one Tappan, which was duly paid in February following, and the proceeds, amounting to $ 3635, received by the plaintiff, by order of the defendant. There was no proof of payment of the bill by the plaintiff.</p> <p>The plaintiff claimed to recover one half of the amount remitted by him to Baker & Hodges, deducting half of the net proceeds of the sales of ship and cargo, and the sum received by Tappan.</p> <p>The plaintiff also claimed the sum of $100, as half of his expenses in New York, in attending to the settlement of the voyage.</p> <p>On the part of the defendant it was contended, that the plaintiff was not entitled to recover any thing, until he had paid on account of the defendant a larger sum toward the bill of exchange than he had received, as above mentioned.</p> <p>The case was taken from the jury and reserved for the opinion of the whole Court; who were authorized to assess damages in case the plaintiff ought to recover.</p>

<p>This was assumpsit to recover the money mentioned in tile following contract: — “Boston, March 19, 1828. Received of A. Gerrish jun., by the hands of Mr. S. Brown, one thousand dollars, to be accounted for with Mr. Gerrish. Calvin Washburn & Co.”</p> <p>At the trial, before Putnam J., the plaintiff, having proved the contract, rested his case. The defendants objecting that no demand on them had been proved, which they contended was necessary in order to support the action, the plaintiff offered to produce evidence of a demand, before the end of the trial, which being assented to, the trial proceeded.</p> <p>The defendants then offered to prove, that before the making of the contract, the plaintiff was indebted to Lysander Washburn of New Bedford, and that Lysander Washburn was indebted to them ; and that it had thereupon been agreed, that the plaintiff should, out of the proceeds of some bank stock which he owned, pay to the defendants one thousand dollars on account of Lysander Washburn and towards the debt due from the plaintiff to Lysander Washburn; that a few days after-wards, the stock was sold by Stephen Brown as agent of the plaintiff, and the sum of one thousand dollars paid by Brown to the defendants, and the written contract was given by them to Brown, and was by him passed to the plaintiff; and that the defendants credited the amount to Lysander Washburn in their books.</p> <p>The plaintiff objected to this evidence, on the ground that it was offered to alter, vary, or explain the written contract, which was on its face certain and unambiguous ; and the judge rejected it. The defendants were thereupon defaulted. If the evidence ought to have been admitted, the default was to be struck off, and a new trial granted ; otherwise judgment was to be entered for the plaintiff.</p>

<p>Assumpsit to recover the sum of $457'58, for the labot of certain convicts in the state-prison, from July 1st to August 20th, 1828. Their services were charged at thirty cents a day, according to a parol contract. A trial was had before Putnam J.</p> <p>The action was brought in the plaintiff’s capacity of warden of the state-prison, according to St. 1827, c. 118. The 4th section provides, that “ all contracts on account of the prison shall be made with the warden, and, when approved by the inspectors, shall be binding in law ; and the warden, or his successor in office, may sue or be sued thereon,” &c.</p> <p>The defendant objected, that the statute refers to contracts in writing and express contracts, and not to parol or implied contracts ; but for the purposes of the trial this objection was overruled, and the plaintiff was permitted to prove the parol contract, and that it was approved by the inspectors. There was no evidence of any approbation of it in writing, on the part of the inspectors.</p> <p>It was,proved, that the convicts so hired of the warden, were employed by the defendant in his shop within the walls of the prison, as cabinet-makers, and that cabinet work upon which they had labored for the defendant, of more value than the amount now claimed for their services, was burnt up by a fire set to the shop by some of the convicts in the prison, who had the liberty of the yard, upon a Sunday. Whether any of the convicts employed by the defendant participated in this criminal act, did not appear. It was proved that there was no negligence on the part of the officers of the prison, in guarding the conx'icts.</p> <p>The records of the inspectors were admitted in evidence, notwithstanding they were objected to by the plaintiff; also the written proposals of the defendant in 1827, and the record of the directors showing the qualified acceptance of them.</p> <p>Thomas Harris, who was warden when the parol contract was made, testified that he and the defendant referred to the written contracts of 1826 and 1825, in regard to the rate of wages. In those contracts there is no provision subjecting the defendant to bear the risk of fire or other damage to be done by the convict laborers ; and Harris said he told the defendant that he must bear such risk, and that the Commonwealth were not to bear it; but he added, that the defendant utterly refused to take that risk. In consequence of this, or for some other reason, no written contract was made. And there was no proof of any agreement on the part of the defendant, that he would run the risk of losses by fire, unless it can be inferred from the evidence above stated, together with the fact of his employing the convicts under the parol agreement.</p> <p>The jury were instructed, that if they believed from the evidence, that the defendant did agree to take the risk of fire, he must be held to bear it; if not, then if the convict laborers had by their misconduct or negligence done as much injury as benefit upon their work for the defendant, their verdict should be for the defendant.</p> <p>The jury found a verdict for the plaintiff; and the defendant moved for a new trial, for misdirection, and because the evidence was not sufficient to warrant the jury to find an agreement or assent on the part of the defendant to bear the risk of fire.</p>

This was an action of trover to recover the value of a mare. The defendant pleaded the general issue, and a special justification stating that he, being a deputy sheriff, attached the mare as the property of Isaac W. Goodrich on a writ against him.

<p>John Hawes died on January 22d, 1829, and his last will, bearing date October 23d, 1813, was approved and allowed by the judge of probate in this county, on March 9th, 1829. From this decree Joseph Hawes, an heir at law, appealed.</p> <p>The reasons of appeal were, because the witnesses to the will were not competent and credible witnesses, being inhabitants of South Boston and interested in the devises in the will. - ■</p> <p>Because the will had been revoked by various acts and deeds of the testator in his lifetime ; the testator having conveyed by deed the lands described in several of the clauses of the will: —</p> <p>Because the will is void, being against the statutes of mortmain and the statutes of this Commonwealth, and creating perpetuities and indefinite and useless accumulation : —</p> <p>. Because the will is void for want of legal and competent devisees to take according to its provisions • -</p> <p>Because it is void for vagueness and uncertainty and want of object and meaning : —</p> <p>And because the provisions and appointments in the will are so uncertain, and the contingencies on which they depend so remote and obscure, that the same are incapable of being carried into effect.</p> <p>By the will the testator devises to his wife, during her life, the use of the whole of his real estate and the income of all his personal estate. He then gives real estate and pecuniary legacies to divers persons, the devises to take effect after the death of his wife.</p> <p>In the twenty-second clause of the will, he devises to cer tain persons, sight acres of land in South Boston, (which is a part of the city of Boston, separated from the residue by an inlet of the sea,) to hold, after the death of his wife, in fee simple, as joint tenants, in trust for the use of all such persons as shall hereafter reside at South Boston ; — one half of the income and proceeds of the land to be applied forever, by the trustees, their associates and successors, to the support and maintenance of the gospel ministry of the congregational denomination in and over the first Christian church and society of that denomination, which may be formed, incorporated and regularly organized in South Boston and which church and society shall worship in a house to be erected on a lot of land conveyed by the testator in 1807 to the inhabitants of South Boston for the use of the gospel ministry ; — the other half of the income and proceeds to be applied forever for the purpose of establishing and supporting public schools in South Boston in such way and manner as in the opinion of the trustees, their associates and successors, shall most tend to the benefit and advantage of the inhabitants of South Boston.</p> <p>In the twenty-third clause he devises the residue of his real estate to the same trustees, to hold in like manner for the uses mentioned in the preceding clause, and also to be applied to the establishment of a second congregational church and society in South Boston at such place as the trustees, their associates and successors shall appoint, to the settlement and support of a minister over the same, and for erecting and maintaining a house of public worship for the same, and for the support and encouragement of such other seminaries of learning, and in such way, as thetrustees, their associates and successors shall think most for the honor of God, and the good and happiness of the inhabitants of South Boston and their posterity.</p> <p>In the twenty-fourth clause he gives the residue of his personal estate to the trustees, to be applied, after the death of his wife, to the purpose of erecting and maintaining a meetinghouse on the land conveyed by the deed before mentioned, but in case a meetinghouse should be built thereon before his decease, then the property is to be applied to the support and maintenance of such minister of the congregational denomination as may be settled in and over the church and society that shall worship in such house.</p> <p>The attesting witnesses had executed a release of any interest supposed to be conferred on them by the will, and being sworn, one of them testified that he has lived in South Boston forty-five years ; that he owns real estate there ; that his children no longer go to school, but whether they had left off at the time of making the will, he could not recollect. Another testified that he lived in South Boston in 1813, and carried on business there, owning personal estate ; and that he now lives there and owns real estate there. The third testified that he lived there in 1813, and has ever since ; that he never owned real estate there, but that he has personal estate there; that a congregational society was formed there as many as ten years ago, and that he was a member of it several years, but had recently left it.</p> <p>The society was incorporated on February 19th, 1818.</p>

On a writ of habeas corpus directed to the keeper of the gaol in Suffolk, to bring up the bodyaof Mary Woodman, it -appeared that she was imprisoned upon an execution issued against her husband and herself, upon a judgment recovered against them by Philip Wentworth, for a debt contracted by her previously to the marriage. The husband was not within the Commonwealth when the judgment was recovered, nor when the wife was committed.

Trover.* A case stated by the parties was turned into a special verdict, in which the following facts were found. The merchandise described in the declaration was brought from a foreign port to the port of Boston, consigned to George De Wolf and John Smith. Soon after the arrival of the vessel, the collector of the port caused an inspector to be placed on board.

<p>Where an agent, having received money, unreasonably neglects to inform his ero ployer of it, he is liable for interest from the time when he ought to have given information.</p> <p>Interest is to be allowed where the law by implication makes it the duty of the party to pay over the money to the owner without any previous demand on his part.</p> <p>In 1803 and 1804, D., a merchant in St. Domingo, indorses and transmits to J. & T. H, P., a mercantile house in Boston, consisting of J. P. and the defendant, four bills drawn upon the French government, requesting that they may be sent to France for collection. J. P. makes an entry of the bills in his own memorandum book, and states that the proceeds are to be remitted to London; but no entry is made on the regular account books of the house. The bills are duly sent to a banker in Paris, presented for payment and protested, and D. is put into direct correspondence with the banker, and he thereupon charges the banker in his books, and discharges J. & T. H. P. In 1806 D. dies, and afterward, in the same year, upon inquiries made by a person in France with a view to taking the business out of the hands of the banker, the banker replies that he is accountable only to J. & T. H. P., and upon notice of this interference, J. P., in the name of his house, writes to the banker that the bills belong to them, and have nothing to do with the concerns which may exist between D. and the person who had interfered. In 1815 the French government issue stock in payment of these bills and of two others belonging to J. & T. H. P., of which the banker gives them notice; and J. P. makes an entry in his memorandum book of the amount of stock for which each bill was liquidated, representing three of the four to be the property of D., and the fourth to be the property of a house of which J. P. had formerly been a member. The banker receives and retains the dividends on the stock until 1822, when, upon the death of J. P., the defendant, as surviving partner, directs the banker to dispose of the small amount in the French funds belonging to the late house and remit the amount, with the accumulation, to a banker in London. Upon this, the Paris banker remits the proceeds of the six bills, and the defendant, not recollecting that D. had any interest in them, credits his share to the account of profit and loss. The defendant draws bills upon the London banker for the amount in his hands, the rate of exchange on England being above par. In 1807, D.’s will was proved in New York, and in 1827 the executor took out letters of administration in this Commonwealth, having previously, in the same year 1827, satisfied the defendant that three of the bills belonged to the testator, and .having demanded the proceeds of the four bills with interest. It was held, that the agency of J. & T. H. P. ceased when the testator was put in direct communication with the Paris banker ; that it was resumed by the correspondence in 1806; that it was their duty, whether the agency were gratuitous or for a commission, to have made such entries in their books as would have shown that the testator was interested; that it was the duty of the defendant to have given notice, in 1822, of such interest, to some of the heirs of the testator, they being known to him; that having neglected so to do, he was liable for interest from that time; and that as originally the proceeds of the bills were to be remitted to London, he was liable to account at the rate of exchange on England at the time of the remittance.</p>

<p>This was an action of debt on a probate bond, given by Thomas Cushing as principal, and Mackay as surety, to the judge of probate of Suffolk; and was brought on behalf of Experience S. H. Freeman,1 daughter and legatee of Watson Freeman. On oyer it appeared to be an executor’s bond ip common form, conditioned that Cushing, the executor of the will of Watson Freeman, should make and return under oath an inventory of the goods, chattels, rights and credits of the deceased which had or should come into his hands, and the same goods, chattels, rights and credits should “ well and truly administer according to said willand should render an account within a year. After oyer of the condition, the defendant Mackay, who alone appeared, pleaded a general performance of the condition of the bond.</p> <p>The plaintiff then prayed that the will mentioned in the condition of the bond should be enrolled, which was accordingly done. The will gives the testator’s personal estate to his five children, Watson Freeman, Mary Ann Freeman, Charlotte Freeman, Benjamin Freeman and Experience S. H. Freeman, to be apportioned and disposed of as therein after directed. It then provides, that in consideration of the greater expense which the education of his sons will require, they shall each receive one thousand dollars more than their sisters. It then continues, “And I will and direct, that all the residue of my personal estate shall be distributed in equal portions among all my children above mentioned, and I do hereby request and direct the executors of this my last will and testament to dispose and invest my personal estate in public funds in the most secure and advantageous manner, and to appropriate and apply the income thereof to the maintenance and education of my said children during their minority, according to the apportionment above made, and to pay to each of my said sons his respective share of my personal estate on the day whereon he may attain the age of twenty-one years, and to each of my daughters one moiety of her respective share when she shall nave attainen the age of twenty-one years, and the other moiety when she shall have attained the age of twenty-four years.” In case of any son or daughter marrying before he or she is twenty-one years old, one half of his or her portion is directed to be paid on the day of marriage.</p> <p>The will left no other legacies, ard appointed Cushing and three other persons executors.</p> <p>The testate' also gave his real estate “ to be divided ana apportioned among” his children in equal shares, u ano to be disposed of and distributed and delivered to them severally in like manner ” as his personal estate ; and directed his “ executors to appropriate the income of his said real estate equally among his said children for their maintenance and education ; ” and provided, that in case the income of the real and personal estate was more than sufficient for the purpose, the excess should be added to the principal and vested in the same manner as the personal estate ; but if “ the avails ” of the real and personal estate are insufficient, he directs his executors to sell so much of his real estate as they shall judge sufficient for the purpose. He also authorizes the executors to sell any part of his real estate and invest it in funds, if they think it will be advantageous to his children.</p> <p>The plaintiff replied, that Cushing, having in his capacity of executor received a large sum of money as assets of the testator, to wit, twenty thousand dollars, which remained in his hands after the payment of all debts and charges of settling. the estate, while he was executor, and during the minority of the children, “ did not dispose and invest the personal estate of said Watson Freeman, his testator as aforesaid, in public funds according to the directions of the said will, but refused and neglected so to do, contrary to the form and effect of the condition of said writing obligatory ; and this he is ready to verify.”</p> <p>To this replication there was a general demurrer and joinder.</p> <p>The case was argued first at the bar and afterwards in writing.</p>

This was a bill in equity, representing that the plaintiffs, on the 23d of May, 1827, were creditprs of the Boston Glass Manufactory; that by an indenture bearing date of that day, between the manufactory of the first part, the defendants of the second part,, and all those persons who should become parties thereto of the third part, the property of the manufactory was assigned to the defendants and accepted by them in trust to distribute the net proceeds ratably among the…

This was an action of debt brought by the treasurer of the Commonwealth, upon a bond given by the defendants, as auc tioneers, in pursuance of the third section of St. 1822, c. 87, imposing a duty upon sales by auction. The breach alleged was, that the defendants had sold by auction certain property belonging to the New England bank, and had not accounted for the duties payable upon such sale.

Assumpsit. The declaration- alleged, in the first count, that the defendants, on January 10th, 1S2S, being the proprietors of a building in the city of Boston, called the city theatre, in consideration that the mayor and aldermen of the city would grant them a license for theatrical and equestrian exhibitions in the theatre, for the term of one year from that date, promised the city to pay them $ 1000 on demand ; and that the mayor and aldermen did grant them such a license.

<p>This was an action against the defendants as indorsers oi a promissory note, made by W. C. Williams, dated January 6th, 1829, payable to the defendants in four months, and by them indorsed to the plaintiffs. On May 6th, 1829, the bank gave notice to Williams by a notification put into the post-office at Boston, addressed to him at Newburyport, his place of residence ; and on May 9th another notification, addressed to him as before, was put into the post-office in Boston at half past eight o’clock in the forenoon. Williams had stopped payment before the month of May.</p> <p>The defendants had also stopped payment before May 9th, 1829, on which day, at 15 minutes before 9 o’clock in the forenoon, notice was given to them of the non-payment of the note by the maker, by giving them the usual bank notice.</p> <p>The writ was dated May 9th, 1829, and was served on that day at 18 minutes after 9 o’clock, by an attachment of the defendants’ property. During the month of May the bank was opened at 9 o’clock, and the usual bank hours for doing business were from 9 A. M. to 2 P. M.; and it was the custom of the bank to give notice to the maker and indorser of notes' on the last day of grace, immediately after the bank had closed, when the note remained unpaid.</p> <p>The defendants were defaulted, and judgment was to be entered on the default, or the plaintiffs were to become nonsuit, according to the opinion of the Court as to the sufficiency of</p>

<p>This was an action of assumpsit, which was submitted to the Court on the following agreed statement of facts.</p> <p>Knower, the plaintiff, on October 29th, 1825, being largely indebted to the firms of Emerson & Hastings, Emerson & Jones, and the then late firm of Emerson & Spear, of each of which firms the defendant was a member, gave the defendant a promissory note for $ 4570, payable on demand to Emerson’s order, an amount which the plaintiff was supposed to owe these firms, and took from the defendant a writing dated on that day, *n which he acknowledged the receipt of the note, on account of Emerson & Hastings, Emerson & Jones, and the late firm of Emerson & Spear, and promised to account for it on settlement, or to deliver it up to Knower.</p> <p>Before this time Knower had consigned boots and shoes to a large amount to divers commission merchants in New York ; and they had made advances on these consignments.</p> <p>At the same time that Knower made the note for $ 4570,. he also gave Emerson orders on all these commission merchants, requesting them to deliver up or pay over to Emerson all the plaintiff’s property in their hands, or the proceeds of it. Emerson then signed and delivered to Knower the following contract:— “ Providence, Oct. 29, 1825. Received of Samuel Knower an order on Spafford & Tileston, &c. for each and every one to accept and deliver up all proceeds due the said S. Knower, and I do hereby agree to pay over to said S. Knower the proceeds of all property which they and each may account to me for, over and above paying these my several demands, viz. a demand of Emerson & Hastings, do. Emerson & Spear, do. Emerson & Jones ; and I do hereby agree, that if there should not be more than one thousand dollars due the said S. Knower after paying my just demands, that I will divide equally the proceeds ivhich I shall receive from the above named firms of New York, on account of said Knower, with the said Knower, and no other. But if there should be over and above one thousand dollars, the said Knower can expect no division of the proceeds, as I shall pay all over my demands to him and no other. — William Emerson. ’ ’</p> <p>Emerson, by means of the orders, received from the New York merchants, at different times in 1826, the proceeds of all Knower’s property remaining in their hands, amounting in all to $ 1039-51, the whole of which he indorsed in several sums upon Knower’s notes to Emerson & Spear.</p> <p>On October 29th, 1825, when Knower gave his note to Emerson for $ 4570, the whole amount which was due from him to the firms in which Emerson was a partner and to Emerson separately, was $ 3485-90.</p> <p>On November 10th, 1825, Knower made a general assign* ment of his property to John Lemist, for the benefit of his creditors. By a provision in this instrument, all the creditors who became parties to it released all their claims against Knower. Emerson was one of the creditors who thus became parties. In this instrument, among the assigned property, are specified the boots and shoes consigned to the New York merchants, which consignments and their proceeds are stated to be “subject to a certain order drawn by said Knower in favor of one William Emerson ; ” and Lemist is appointed attorney of the assignor, and as such, among other things, is authorized to demand and sue for all balances which were due or should become due “ from said merchants in New York and said William Emerson.”</p> <p>This action was brought in Knower’s name for the benefit of Lemist, the assignee. The defendant was to be defaulted or the plaintiff to become nonsuit, according to the opinion of the Court upon the foregoing facts. The defendant, if the decision was against him, claimed a deduction of $ 98,50 for expenses and trouble in collecting the money in New York, the right to claim which was also submitted to the Court.</p>

<p>This was assumpsit for goods sold and delivered, and on the following note, viz.: — “For value received in N. E. rum for use of myself and owners of Brig Ida, I promise to pay Horace Scudder or order 519 dollars 53 cents, on demand, with interest after six months. For myself and owners of Brig Ida. Feb. 28, 1828. Mien Hallett.” The note was indorsed by Scudder to the plaintiffs, without recourse. The note also contained an indorsement by Scudder, acknowledging the receipt of $ 163-67, “ being net account of sales of 38 barrels of gin, after deducting 100 dollars, amount of an order accepted to pay Joseph Swan out of the proceeds of said gin.”</p> <p>At the trial, before Wilde J., it was admitted, that the defendants and Allen Hallett were joint owners of the brig Ida, which was built to run as a regular packet between the ports of Boston and Baltimore. Scudder being called as a witness by the plaintiffs, testified that he, being a commission merchant in Boston, sold a quantity of N. E. rum belonging to the plaintiffs to Hallett, who was the master of the Ida, on the credit of her owners ; that the rum went on board of her; that he took the note in payment; that he, Stanton, Fiske & Nichols, and the defendant Thacher, were agents to procure freights and passengers for the Ida ; that it had been a general practice for masters of vessels, in this business, to take up goods on account of the owners, when a full freight could not be procured ; that Hallett proceeded in the Ida to Baltimore, where, failing to sell the rum, he shipped it to Charleston, where he exchanged it for 38 barrels of gin, which he shipped to Boston, and which, on its arrival, was placed by Warren Hallett, a brother of Allen Hallett and one of the defendants, in the witness’s hands to sell on account of this note ; and that he accordingly sold the same, and made the indorsement of the proceeds on the note. Allen Hallett died on his passage from Charleston to Boston.</p> <p>On cross-examination this witness stated, that there was an understanding between him and Allen Hallett, that the proceeds of the rum should be sent to him, though there was no strict bargain to that effect. He admitted that he never consulted with the defendant Thacher, who resided in Bos'on, and was known to him to be one of the owners, as to the sale of the gin, or the purchase of the rum by Allen Hallett ; and that Thacher never had notice of the note, until after Allen Hallett’s death, and was not called on to pay the balance due upon it, until after Allen Hallett’s estate had been represented to be insolvent. The witness said, that he expected that the note would have been paid by Allen Hallett, and therefore did not apply to the owners. He also testified, that Allen Hallett, some time before he was in the Ida, had been master of the Helen, which belonged to the Union Line of Baltimore Packets, and that he had several times sold him goods on the credit of the owners, which goods had gone to the credit of the con cern, and the purchases had been ratified by them ; but that he did not know that the purchase of rum in this case was known to the owners of the Ida, at the time it was made. He supposed, however, though he did not certainly know, that it was known to Warren Hallett at the time he' put the gin into his hands. Here the plaintiffs rested their case.</p> <p>The defendants called Francis Stanton as a witness, who testified that he had been concerned in the lines of packets between Boston and Baltimore and Boston and New York, for fifteen or twenty years ; and the house of Stanton, Fiske & Nichols, to which he belonged, had been, during that period, agents for those lines of packets, and -still were for the New York packets; that he had never known the masters of these vessels take up goods on the credit of the owners, in Boston or any other port; and that there was not, to his knowledge, any such general usage or practice. He said, however, that it was usual, in the Union Line, to permit masters, when they had short freight, to purchase flour and other merchandise out of the stock, which consisted of funds on hand derived from the earnings arising from freight and passengers and profits of these purchases, but not to make purchases on credit, or otherwise than with the stock ; and that the stock so purchased belonged to the owners.</p> <p>The judge instructed the jury, that unless they were satisfied from the evidence, that Allen Hallett was expressly or impliedly authorized by the defendants to purchase the goods for them or on their credit, the plaintiffs bad not maintained their action ; and that the burden was on the plaintiffs to prove that Hallett had that authority. The jury were also instructed, that there being no express evidence of such authority, they should find for the defendants, unless they were satisfied that there was some usage of trade authorizing the master to bind his owners, or that the goods purchased came to the use of the owners.</p> <p>The jury returned a verdict for the plaintiffs, for the balance due on the note, deducting the indorsement of $163"67 with interest. On inquiry, the foreman stated that the jury had rendered their verdict on the ground of a general usage of masters of packets in this line to purchase goods on the credit of their owners ; but another juryman stated, that he and some of the rest were of opinion that'there was sufficient evidence to prove that the rum came to the use of the defendants.</p> <p>The defendants moved for a new trial, because the verdict was against both law and evidence ; and they also excepted to the verdict, on the ground that the $ 100 paid to J. Swan, being part of the proceeds of the gin, ought to have been applied towards payment of the note.</p>

Assumpsit. The declaration contained three counts ; the first was for money paid to the use of the defendant by the plaintiffs as administrators of Isaac Durell ; the second was for money had and received by the defendant to the use of the plain'iffs as administrators; and the th:rd was for money had and received by the defendant to the use of Durell, the intes* tate.

The question in this case was, whether Sumner was chargeable as trustee of the defendants, Stephen Hills & Co. The following facts appeared from his answers.

Replevin brought by the plaintiffs, who are brewers in the city of Boston, to recover of the defendant, a deputy of the sheriff of Suffolk, eighteen beer barrels, each containing about thirty gallons of beer, with their contents, being in the cellar recently occupied by one Klein, in Market street; which the plaintiffs aver to be their property, and that the defendant took and unlawful’y detained the same on the first day of August, 1828.

<p>Debt upon a probate bond. The original writ, which was made returnable to this Court, was under the seal of the Court of Common Pleas, the plaintiff having made use of a blank writ of the Common Pleas. The defendant pleaded in abatement, that the writ was not under the seal of this Court; and thereupon the plaintiff moved that the writ should be amended by affixing to it the seal of this Court; but the Court said the amendment could not be made.1</p>

<p>Devise of $ 50,000 to executors, “ in trust to loan the same upon ample and suffi cient security, or to invest the same in safe and productive stock, either in the public funds, bank shares or other stock, according to their best judgment, and to pay over the profits and income thereof to the testator’s wife during the term of her natural life,” and after her decease to deliver one half in actual value of the entire fund to a college for the foundation of a professorship, and the other half to a hospital. Held, that the trustees were authorized to make investments in stocks of an incorporated manufacturing company, and of an incorporated insurance company.</p> <p>An insurance company, in whose stock the trustees invested part of the fund, made a dividend of money received by virtue of a treaty with a foreign government, for claims existing at the time of the investment, for illegal captures of property insured by the company. It was held, that the money so received was not a part of the capital stock of the insurance company, and that the dividend was rightly paid to the widow, instead of being reinvested by the trustees.</p> <p>So a dividend of the proceeds of patent rights and patterns belonging to a manufacturing company and sold by them, was held not to be a part of the capital stock, but to have been rightly paid over to the widow.</p> <p>The executors having offered an account in the probate court, in which they charged themselves with the value of certain stocks belonging to the testator, and credited themselves with the same sum as the value of the same stocks appropriated by them as the trust fund, and the judge of probate having allowed the same, it was held9 that the college and the hospital, not having appealed from the decree, were precluded from objecting to the investment of the trust fund.</p>

Assumpsit on a policy of insurance dated December 5th, 1827, on the brig Delta, “ at and from wherever she may be on the 11th day of December, 1827, at noon, to and at all ports and places to which she may proceed for one year from that time.” The vessel was valued at $ 10,000, and was insured for that sum to Hall and Williams, the plaintiffs, for whom it might concern, payable to them in case of loss.

Assumpsit on a policy of insurance. A new trial having been ordered, (as appears by the report of the case in 6 Pick. 131,) the plaintiffs, upon the new trial, offered divers depositions taken in Norfolk, Virginia, under a pommission issued from the office of the clerk of this Court in October 1829. These depositions were objected to by the defendants, on the following grounds.

<p>The statute of limitations begins to run from the date of a promissory note payable in money on demand.</p> <p>B it x 'here an action will not lie without a previous demand, as on a promise to deliver goods or perform some service on demand, the statute begins to run from the time of making the demand.</p> <p>In the case of a debt barred by the statute of limitations, a new promise is a new cause of action, but the plaintiff has a right to declare on the original promise, and if the statute is pleaded, to reply the new promise.</p> <p>If the new promise was made by the debtor when out of the Commonwealth, and he did not leave properly therein which could be attached by the ordinary process of Jaw, the statute will not begin to run upon the new promise until after his return into this Commonwealth.</p> <p>A new promise made to the holder of a note, will enure to the benefit of a subsequent indorsee.1</p>

<p>John Francis Knapp was indicted as principal, together with Joseph Jenkins Knapp and George Crowninshield as accessories, in the murder of Joseph White of Salem, which was perpetrated on the 6th of April, 1830. The indictment alleged, that Richard Crowninshield also was a principal, and that he had committed suicide. The parties indicted were tried separately.</p> <p>On the arraignment of J. Francis Knapp on the 23d of July, he desired that R. Rantoul, who had recently been admitted an attorney of the Court of Common Pleas, might be assigned as one of his counsel ; but the Court refused his request, observ mg that they had no control over Rantoul as an officer of this Court. They added, that it was proper that a person of more legal experience should be assigned, who might render aid to the Court as well as to the prisoner.</p> <p>On the first day of the term, F. Dextet, on behalf of the persons accused of the murder, stated it to be the English practice, to indorse on the indictment the names of the witnesses exam ined in the case by the grand jury, and he requested that this might be done, should any bills be found. The Solicitor-General said that by our practice the grand jury return a list of all the witnesses examined by them, without naming the cases, but that if it was desired in the present instance, the witnesses examined upon each case should be specified. Dexter requested that this course might be pursued. Now, after indictments had been found, Dexter and W. H. Gardiner, of counsel for the prisoner, stated that they had not been furnished with a list of the witnesses.</p>

<p>In the case of a grant of land by the Commonwealth, in which the land is described by courses and distances, without reference to monuments, evidence of long continued occupation under it is admissible to prove the boundaries, and though the given distances are exceeded, they may be controlled by the boundaries so proved.</p> <p>Grants of contiguous land by the Commonwealth and occupation under them, and subsequent conveyances by the grantees referring to monuments not. existing at the time of the original grants, are admissible in evidence for the same purpose.</p> <p>A usual practice of surveyors of land laid out by the proprietors of a town, to overrun the exact measures, is admissible to show that the boundaries of an ancient grant by the Commonwealth in an adjacent town, and described by courses and distances, exceeded the distances given. •</p> <p>For the same purpose, evidence is admissible that at the time of an ancient grant by the Commonwealth, it was the uniform practice, in surveying such grants, to give large measure*</p> <p>Where a tenant of land presented a petition to the legislature, admitting that the land belonged to the Commonwealth and praying that it might be granted to him, and thereupon the land, by authority from the legislature, was sold to another person, it was held, that the tenant was not estopped from setting up his title, but that his admission in his petition and his declarations, unexplained, that the land did not belong to him, were strong evidence against him, and the burden of proof hy on him to show that they were founded in innocent mistake.</p> <p>If two writs of entry for the same land are brought successively by different demand-ants, and the tenant pleads nul disseisin in the first action, he is not thereby prevented from pleading a disclaimer in the second.</p>

<p>If the plaintiff owns a mill on one side of a river, and the defendant a mill on the other side, with a dam in common, and each is entitled to the water alternately six months in the year, each has a right to repair his own floom at any time of the year; more especially where each has a right to the surplus water not required by the other’s mill.</p> <p>In such case, if the defendant uses ordinary diligence in making the repairs, he will not be responsible for an accidental damage to the plaintiff.</p> <p>Where such defendant, in order to prevent great injury to both parties from an accident occasioned by him in making repairs, but without negligence on his part, found it necessary to raise the waste gate and remove the flash-boards of the plaintiff, it was held that he was not liable for the damage.</p> <p>Tiie St. 8 ^9 Wm. 3, c. 11, § 7, respecting survivorship of actions, has, it seemsf been adopted in this Commonwealth.</p> <p>Upon the death of one of several plaintiffs in an action of trespass guare clausum fregit9 rhe action, by St. 1828, c. 112, survives to his co-plaintiffs.</p>

The plaintiff, as the surviving partner of two distinct mercantile firms, commenced two actions of assumpsit, for different causes of action, against the defendants, at the same term of the Court of Common Pleas, both of which actions were brought up to this Court and determined in favor of the plaintiff.

Assumpsit upon a promissory note, for $ 150, dated February 23d, 1828, made by Reuben Stoddard, the intestate. Trial before Putnam J., upon the general issue. The plaintiff, on December 8th, 1827, sued out a writ against one Knapp, in which the ad damnum was laid at $200, and attached certain real estate which Knapp had previously conveyed to Stoddard. This conveyance the plaintiff considered to be fraudulent and void as against creditors.

This was a petition for partition. The facts were, that Timothy Grilling, the elder, died on September 11th, 1820, leaving five children and heirs, namely, Timothy, Luther, William, Harvey and Martin Grilling, all of lawful age. At his decease he was seised of the following parcels of land in Richmond, namely, a homestead, appraised at $3270, a lot appraised at $1075, and the “ Tracy lot” appraised at $119', amounting in the whole to $5535.

<p>Assumpsit on a joint and several note, payable by Perry and J. West to Seth Snow or order, and indorsed by the payee to the plaintiff when over-due and after the receipt hereafter mentioned had been given.</p> <p>Payment of $300 on'May 20th, 1829, which was previous to the indorsement, was proved to have been made in bills oc the Columbia bank, at Hudson, for which a receipt was given by the payee as follows: — “Becket, May 20, 1829. Received of J. West and A. Perry, by the hands of Amos West, son of J. West, 300 dollars in bills on the Columbia bank, Hudson, which I agree and promise to indorse on a note I hold against West and Perry, or return the same when called for. Seth Snow.” On May 21st, 1829, the bank stopped pay ment. Snow lived in Becket, West in Lee and Perry in New Lebanon, several miles from each other and from the bank at Hudson. It was proved that the bills were sent by Perry, or West and Perry, by a boy, the son of West, with directions to deliver them to Snow,-and to see their amount indorsed on the note, or to take a receipt for the same. It was also proved, that the bills so sent were the property of Perry; and that at the time of the service of the writ, Snow had given no notice to Perry that he had not applied or would not apply them towards payment of the note. There was evidence tending to show, that about a week after the receipt of the bills, notice was given to West that they would not be so applied. Perry’s instructions to the boy were, that the money should not be left unless he saw it indorsed on the note , and the boy testified, that Snow, who was from home, agreed to indorse it when he should return home at evening ; but in this he was contradicted by Snow. The boy further testified, that he told Snow that Perry sent the money. It was proved that the receipt did not come to the hands of Perry until five days afterward, and there was no evidence that he had previous knowledge of it, or that Snow had ever returned or offered to return the money. And the testimony of Snow, that he gave notice to West, was contradicted by West.</p>

<p>Accord and satisfaction is a good plea to an action for a breach of a covenant against incumbrances on land; and the lapse of twenty years after actual damage suffered from the breach, furnishes a presumption, which, if not rebutted, will sustain the plea.</p>

John Dryden brought an action against Cyrus P. Dryden, in which he declared, 1. on a written contract, 2. for money had and received, and 3. for goods sold and delivered. Judgment was rendered against Cyrus, on all the counts, at February term 1827, of the Court of Common Pleas, upon a default. Whereupon he brought his writ of error, assigning for error that the first count was insufficient to sustain the action.

<p>A note indorsed by the defendant and plaintiffs and discounted at a bank in Connecticut, was indorsed by the cashier to the cashier of a bank at New York, where the maker lived, and there a notary public demanded payment of the maker, which being refused, die notary sent a notice of non-payment to the cashier of the Connecticut bank, who immediately sent notices to the defendant and the plaintiffs, and the plaintiffs paid the note at that bank. It was held, that these facts showed that the Connecticut bank were the holders of the note at the time of its dishonor, and that so the notary was their agent; and the notice to the defendant, which was by the usual course of the mails, was held to be sufficient, though it was not so early as notice direct from New York would have been.</p> <p>The relative rights and duties of parties who indorse a promissory note for the accommodation of the maker, are the same as in the case of a business note; so that due notice of the dishonor of such accommodation note having been given, a subsequent indorser who pays it, may recover of a prior indorser the whole amount paid, and not merely a contribution as in the case of sureties.</p>

Trespass for taking the plaintiff’s mare. At the trial, before Putnam J., the plaintiff proved that the defendant took the mare out of the plaintiff’s possession.

Assumpsit. The declaration alleged, that on September 12th, 1828, in consideration that the plaintiff, at the request of the defendants made by Luther Washburn, Peter Briggs, and Lyman Brown, county commissioners and agents of the defendants in this behalf, would construct a road in Stockbridge by July 1st, 1829, to the acceptance of the commissioners, the defendants, by the commissioners, promised the plaintiff to pay him therefor, when so completed, a certain price, by…

Trespass against Halsey and Avery for entering Wood-ruff’s close and pulling down a blacksmith’s shop; with c.ounts for carrying away the materials. The defendants plead severally the general issue.

On the petition of S. W. Halsey, a private in a company ol militia, a writ of certiorari was issued to a justice of the peace, by whom Halsey had been fined for neglecting to meet with the company on the first Tuesday of May 1829.

Trover for a wagon. It was admitted that the wagon was made by Brown, the plaintiff’s intestate, and that it was taken by the defendant about a fortnight after Brown’s decease, and converted to the defendant’s own use.

The petitioner, as executor of Calvin Hubbell, deceased, represents that the real estate of the- testator was appraised at $ 1938 ; that the amount of the personal estate, including the proceeds of a part of the real estate specifically appropriated to the payment of debts, is $ 4059 ; that the amount of ,the executor’s account for funeral charges, debts, and expenses of administration, is $2616 ; that the amount of specific legacies of personal estate is $ 1514 ; that the…

<p>From the answers of Merrick it appeared, that he had become surety for'Strong to the Hampden bank, for about $500, and that D. B. Bush, in September 1829, as agent of Merrick, took of Strong an absolute deed to Merrick of certain real estate, in order to secure him against this liability. Bush informed Merrick that the deed was also to be held as security for Bush’s claims against Strong, amounting to $400. The real estate was at that time incumbered by mortgages and attachments. The deed was recorded on October 1st, 1829. The writ in this case was dated December 26th, 1829, and before it was served upon Merrick, Strong had paid the whole amount for which Merrick was liable, except about thirty dollars. No part of Bush’s claim had been paid by Merrick, nor did Merrick know whether any part of it had been satisfied by Strong. Before the conveyance to Merrick, Strong’s right in equity to redeem had been attached by A. Hayden, and Merrick took an assignment of Hayden’s execution, which was for about $ 50, but Merrick’s claim being secured by N. Willis, he relinquished his claim to the execution, and the equity of redemption was sold on the execution in April 1830, with his consent, and was purchased by Willis for $ 1700. Merrick understood, before the sale, that Willis was a creditor of Strong, and that he had attached the real estate in question. At the time when Merrick relinquished his claim to.the execution, some provision was made for Bush’s claim, by an agreement between Bush and others, but Merrick did not know the nature of the agreement.</p>