Volume 27 — Massachusetts Reports

<p>In an action of debt upon a judgment recovered in another State, it is sufficient the plaintiff, upon the issue of nul tiel record, to produce a copy of the record of the judgment, without producing a copy of the record of the antecedent or subsequent proceedings.</p> <p>Where, by the forms of proceeding in another State, judgment is entered for the penalty of a bond and a fieri facias issues for only the sum actually due to the plaintiff, if an action of debt on such judgment is brought in this State, and the issue ofnvZ tiel record is found for the plaintiff, the judgment will be that there is sucli a record, and an execution will be awarded for the sum actually due to the plaintiff.</p>

<p>A part of the real estate of an intestate being required for the payment of his debts, his widow and children (some of them, being minors, by their guardians) agreed that the whole should be sold together, and that the interest of one third of the proceeds should be secured to the widow during her life. Upon the petition of D. as guardian of one of the minors, and of the widow as guardian of the others, D. was licensed to sell the shares of the minors, and he made a sale accordingly, the other heirs joining in the conveyance and the widow releasing her dower. D. afterwards executed a note with surety, which was subsequently secured by a mortgage, for the amount of one third of the proceeds, payable to the heirs, with interest payable to the widow for her life, and delivered the same to the widow, who deposited it with B. for the benefit of all concerned. Afterwards, without the knowledge of the heirs, the note was exchanged for two notes given by other promisors, amounting to the same sum, one payable to the widow or order, the other to B. or order. It was held, that a bill in equity in favor of the heirs, either to enjoin these promisors from paying the principal to the promisees, or to compel the promisees to give security, would not lie under St. 1817, c. 87, on the ground that here was a trust arising in the settlement of an estate, nor under St. 1823, c. 140, on the ground that the parties were partners or tenants in common in the fund or securities.</p>

<p>A witness is bound to answer a question in a matter pertinent to the issue, where his answer will not expose him to criminal prosecution, or tend to subject him to a penalty or forfeiture, although it may otherwise adversely affect his pecuniary interest.</p> <p>So a witness may be compelled, under a subpeena duces tecum9 to produce a document in his possession, unless he has a lawful or reasonable excuse for withholding it, although the production of it will adversely affect his pecuniary interest.</p> <p>Of the lawfulness or reasonableness of such excuse, the court and not the witness is to judge.</p> <p>In an action upon a promissory note, a witness served by the plaintiff with a' subpama duces tecum to produce the note, testified that the defendant, a mechanic, assigned his property to the witness, who was a creditor, and that the plaintiff and the other creditors put their demands, including the note in question, into the hands of the witness for collection, under an agreement that he might furnish stock to the defendant to work up for the benefit of the creditors, and that the proceeds of all the property should be applied first to the repayment of the advances made by tlie witness, and the surplus to the payment of the demands, and that a large sum was due to the witness on account of his advances. Held, that he was not bound to produce the note for the purpose of sustaining the action.</p> <p>Held9 also, that as no period was specified for the continuance of the witness’s agency, a reasonable time must be allowed, and that a creditor must be considered as acquiescing in the time taken by the agent, unless he gave notice to him to hasten the collection of the demands.</p> <p>Held9 also, that a creditor could not secure his own demand by attaching the property, without first giving notice to the other creditors and putting them in the same situation which they were in before the agreement was made.</p>

<p>The petitioner represented, that an action of trespass was brought against himself and Nahum Bryant by Calvin Merrill, for taking a quantity of hay which Merrill claimed to have attached as a deputy sheriff, on a writ against one Smith ; that the cause was submitted to a jury at September term 1829, in Franklin county, upon the general issue, severally pleaded by the defendants, and the jury returned a verdict convicting the petitioner and acquitting Bryant; that before Merrill’s attachment, the petitioner, as a deputy-sheriff, had attached the same property on a writ against Smith, in the presence and with the knowledge of Bryant, and appointed him the keeper thereof, but that as there was some evidence at the trial that Bryant participated with the petitioner in removing the hay after Merrill’s attachment, the judge refused to discharge Bryant, or to permit the issue as to him to be tried first and separately, so that the petitioner was prevented from using Bryant as a witness on the trial of the issue as to the petitioner. Wherefore' the petitioner prayed that a new trial might be granted as to him, in order that he might have an opportunity of availing himself of the testimony of Bryant, for the purpose of proving the prior attachment made by the petitioner.</p> <p>Bryant, being now sworn, testified that before Merrill’s attachment, he went with the petitioner into the barn where the hay was, and that the petitioner attached it and appointed the witness a keeper of it. On cross-examination he answered that he did not see the petitioner touch the hay, but that the petitioner said he attached it.</p>

<p>A testator directs that his debts be speedily paid, and gives to his wife one third of his real estate for her life and one third of his personal estate forevei, and after divers legacies to be paid in real estate or specific articles, he proceeds,—“ To my sons, See. I bequeath all my personal estate after deducting what I have given to my wife and paying my debts, to be equally divided among them.” Held, that the wife was entitled to one third of the whole personal property, without first deducting the amount of the debts.</p>

This was an action brought to recover the expenses incurred in the support of Abel Eaton and his family, who were paupers. The following facts were agreed by the parties. Samuel Eaton, the grandfather of Abel, had his settlement in Sudbury in 1773. In that year he removed to Worcester, where he resided till 1777, when he removed to Holden. He owned real estate in Holden from 1777 until 1791.

<p>Assumpsit for the support of Arnold Clark and Tacy his wife, from November 16th, 1826, to March 23d, 1827. One count in the declaration was for money bad and received.</p> <p>At the trial in the Common Pleas, before Cummins J., it appeared that Clark and his wife were State paupers, and that they had resided in Leyden ever since 1824. The overseers of the poor of that town had received, for the benefit of the town, $ 1-80 a week from the treasury of the Commonwealth, for the support of Clark and his wife as State paupers, for the whole of the time covered by the plaintiff’s declaration. The paupers were at the plaintiff’s house and supported by him from the 16th of November to the 23d of March, and he gave notice to the overseers to remove them, under the circumstances hereafter mentioned.</p> <p>It was in evidence on the part of the defendants, that in April 1825 Elisha Chapin was chosen sole overseer of the poor of Leyden, and that at the same meeting it was voted that the overseer be authorized to make any contract he shall deem best for the good of the town, for the support of town and State paupers. Chapin made a contract with George Mowry for the support of Clark and his wife, dated May 14th, 1825, in the form of a bond given by Mowry as principal and Chapin as his surety, to Chapin as overseer or his successors.</p> <p>The condition was, that Mowry and Chapin should support the paupers during their lives ; and the bond contained a clause (since obliterated) whereby “ the overseers agree that Mowry and Chapin shall have whatever the State may allow for the support of Arnold and his wife.” In April 1826, Chapin, Mowry, and H. Newcomb were chosen overseers. Mowry, with the approbation of Chapin and Newcomb, supported the paupers until the time when they went to the plaintiff’s house. The plaintiff knew that Mowry had been supporting them until that time. The money received by the town from the Commonwealth, was paid over to Mowry. The plaintiff called upon Chapin a few days after the paupers left Mowry’s, and requested him to take them away. Chapin told him he would inquire into the alleged grounds of complaint made by the paupers against Mowry, and that he would pay the plaintiff for keeping them until they should be removed by the overseers. Mowry, upon being applied to by the plaintiff a day or two before the conversation with Chapin, told the plaintiff it was his duty to send the paupers back, and that nothing should be paid by himself or the town for their support. Newcomb, upon being applied to by the plaintiff, did not promise to pay him any thing for their support.</p> <p>About six weeks after the paupers first went to the plaintiff’s, they were removed by the overseers to Mowry’s. They returned the next day to the plaintiff’s without the knowledge or consent of Mowry. The plaintiff told them they must go back to Mowry’s, but they refusing, he told them they must go to Newcomb’s, who would provide for them. They accordingly went to Newcomb’s, who told them they must go back to Mowry’s, but they remonstrating against this, as it was stormy and late in the afternoon, he said he would permit them to go to the plaintiff’s for the night, but that they must return in the morning to Mowry’s. Newcomb testified that he made them no promise that the plaintiff should be paid. They then went to the plaintiff’s, and were supported by him at his house, until the time of their final removal on March 23d, 1827. While they were at the plaintiff’s, the overseers provided certain articles of clothing, which were sent to'them at the plaintiff’s house, and which were afterwards paid for by Mowry, who at the time of the purchase agreed to pay for them ; but the plaintiff bad no knowledge of this agreement.</p> <p>The plaintiff contended, 1st, that he was entitled to recover, because the paupers had been in fact supported by him and no one else, and that the overseers having certified to the legislature that they had expended 90 cents a week for the support of each of the paupers during the time covered by the plaintiff’s demand, and having received that sum from the Commonwealth, the defendants were concluded from denying their liability in this action, or that at least these facts were evidence of a contract between the defendants and the plaintiff:—</p> <p>2. That there was sufficient evidence to go to the jury, of a promise, express or implied, of the overseers to pay the plaintiff: —</p> <p>3. That the neglect of the overseers to remove the paupers after due notice that the plaintiff was supporting them, one of the overseers promising that he should be paid, and another not expressly objecting thereto, was sufficient to make out the issue on the part of the plaintiff: ■—</p> <p>4. That the fact that there was a contract with another person for the support of the paupers (admitting the contract to be valid) was immaterial as between these parties : —</p> <p>5. That the bond before mentioned was void or voidable, or at least ineffectual after the first year, from various considerations arising from the face of it or from the facts before stated. And in order to show the bond to be void or fraudulent upon the Commonwealth, the plaintiff offered evidence to prove, that at the time when it was entered into, and until the paupers went to the plaintiff’s, the labor of the paupers was adequate to their support; but the evidence offered was rejected by the judge : —</p> <p>6. That when Newcomb sent the paupers to the plaintiff’s to stay over night, the town was thereby rendered liable until they were removed, or at least for the night: —</p> <p>7. That the count for money had and received was supported by the facts contained in the first ground of the exception.</p> <p>But the judge held that the receipt of the money from the Commonwealth, under the circumstances, did not render the defendants liable in this action ; that it was immaterial to the present action, whether the bond was binding or not as between the parties to it, provided that Mowry, in pursuance of the condition, actually supported the paupers, and that if they voluntarily left him without his consent and lived with the plaintiff, the plaintiff was not entitled to recover of the town for their support, notwithstanding the notice that they were in his family, and the request to the overseers to remove them, and notwithstanding the overseers received 90 cents a week for the support of each of them while they were in fact supported by the plaintiff, and paid over the money to Mowry, after notice from the plaintiff that he had so supported them ; that there was not evidence sufficient to go to the jury to prove a promise, express or implied, on the part of the defendants ; and that the action could not be supported for any part of the time embraced by the declaration.</p> <p>The plaintiff offered evidence tending to prove that the paupers left Mowry’s on account of his ill-treating and insufficiently providing for them, but the judge ruled that the plaintiff was not entitled to recover on this ground, unless the paupers were compelled to leave Mowry in consequence of personal violence towards them, or of his so insufficiently providing for their support as to render it unsafe and improper for them longer to remain under his care ; and the facts not bringing the case within the rules so laid down, the judge ordered a nonsuit.</p> <p>To the foregoing directions and opinions the plaintiff filed exceptions.</p>

Assumpsit upon a promissory note and for goods sold and delivered. The case was tried upon the general issue, in the Common Pleas, at August term 1830, when a verdict was found for the defendants.

Assumpsit. The first count was for $2036'08, on an insimul computassent between Cephas Hoyt, the intestate, and the defendant, on September 11th, 1827 ; the second was for fp 4436-08 on a like insimul computassent; the third was for money had and received ; and the fourth, for money lent and accommodated.

<p>Where the ad damnum in a trustee process exceeds $ 100, and the trustee, having denied that he had in his hands goods, effects or credits of the principal defendant, is nevertheless adjudged trustee by the Court of Common Pleas, he cannot file exceptions, but his remedy is by appeal.</p> <p>If a party files exceptions to the judgment of the Common Pleas, where an appeal is his only proper remedy, but neglects to enter his exceptions in this Court, a complaint by the other party for costs on account of such neglect, cannot be sustained.</p>

This was an action on the case, brought to recover damages for an injury done to a quantity of merchandise, in consequence of the insufficiency of a bridge in Athol, which formed a part of the turnpike road of the defendants.

<p>This was an indictment for disinterring the body of one Chase, which was alleged to have been interred in “ the common burying ground in Greenfield, belonging to the first congregational parish in said Greenfield.” The crime was alleged to have been committed in 1824, and was set forth as an offence at common law, the indictment not concluding contra formam statuti.</p> <p>At the trial, before Morton J., the defendant objected that no evidence had been introduced on the part of the Commonwealth, to prove the allegation that the burying ground belonged to the first congregational parish ; but the jury were instructed that this allegation was inama erial and need not be proved. The defendant being found guilty, he excepted to this instruction. x The defendant also moved in arrest of judgment, because the indictment was brought at common law and not upon Si. 1814, c. 175.</p>

Assumpsit on a policy of insurance, dated December 29th, 1828, whereby the defendants insured for the plaintiff $ 1400 on his dwellinghouse in Northampton, against loss by fire. Upon a case stated it appeared that the house was destroyed by fire on April 23d, 1829, and the amount of the loss was $ 1300. The policy contained a provision, that if the property should be sold or conveyed, in whole or in part, the policy should become void.

This was an action against the sheriff of Hampshire for the default of his deputy, Austin Smith, in falsely returning that certain property attached by the deputy on the plaintiffs’ writ against one Blood, was subject to two former attachments ; whereas if any such attachments had been made, they had been made upon writs made, drawn and wholly or partially filled up by Smith, while such deputy, and so were of no validity.

<p>The action of debt on a bail bond is not taken away by St. 1784» c. 10, it seems, but it must be commenced within one year next after the entering up of final judgment against the principal.</p> <p>Whether a bail bond is assignable by our law, so that the assignee may maintain an action in his own name, qucsre.</p> <p>If an action upon a bail bond given in another State, could be maintained in this State, it must, by St. 1784, c. 10, be brought within a year after the entering up of final judgment against the principal: —• but such an action cannot be maintained within this State.</p>

From the answers of Rice, the supposed trustee, it appeared that the overseers of the poor of Charlemont had put up to auction a pauper, who was an insane female residing with Scott, to be bid off by. the person who would undertake to support her, during one year, for the least sum. She was bid off by Rice, who was to be paid for her support at the rate of one dollar a week.

In these indictments the defendants were jointly charged with knowingly uttering a forged promissory note. Marsh was tried on both indictments, before Wilde J. The trial of Barton having been continued to the next term, he was offered as a witness on the part of Marsh ; but was rejected. Marsh was convicted on both indictments. If Barton was not rightly rejected, new trials were to be granted ; otherwise the verdicts were to stand.

<p>Where a highway bad been laid out by the court of sessions and had been partly worked, and the commissioners of highways had refused to take supervision of it, before they were superseded by the county commissioners, it was kelds that it was the duty of the county commissioners to take supervision of it and either discontinue it or complete it.</p> <p>Upon the petition of a town for a mandamus to the county commissioners to take supervision of and to finish a part of a highway which had formerly been laid out by the court of sessions, an alternative mandamus was issued, to which the commissioners made return, that the part in question, which was a bridge, had been built by the town, with the aid of individuals, and that the expense had been voluntarily incurred by the town and the individuals after the enactment of the statute providing for the payment of similar expenses out of the county treasury ; and that the bridge, immediately after its erection, was dedicated to the public, without any expectation on the part of the town that the expense would be reimbursed by the county. It was held, that this return was substantially good.</p> <p>Exception was taken to the return, that it did not aver in what manner the bridge was dedicated, but as the proceedings of the town, which were made a part of the return, showed for what purpose the bridge had been built, and as the building of a bridge on a highway is ipso facto a dedication of it to the public, the return was o held to be sufficient.</p> <p>Where it did not appear by the petition for a mandamus to the county commissioners, nor on the face of the proceedings, that any part of a road had been worked by the petitioners, nor that they had incurred any expense therefor, nor that they were requested by the commissoners of highways to construct the road, it was held, that it was not necessary, in the return, to notice such supposed facts.</p> <p>A return to an alternative mandamus is sufficient, if it contains a full and certain answer to all the allegations expressly made in the petition for it, and discloses a fair legal reason why the mandamus should not be obeyed.</p> <p>The return was allowed to be amended, after exceptions to it had been filed.</p>

This was an action of covenant broken, upon an indenture of apprenticeship, made August 4th, 1826, by which Betsey Bullard, one of the defendants, who was then a widow, as guardian by nature of her son Asa Strong, binds him, with his consent, to the plaintiff, to learn the trade of cabinet-making, and to serve as an apprentice until 1830, when he will arrive at the age of twenty-one. .The indenture then declares, that “ the said apprentice his said master well and faithfully…

This was a bill in equity to redeem. Isaac Amidon, under whom both parties claimed, made a deed of mortgage to the defendant, dated the 7th of April, 1827.

<p>Tlie question whether an account settled in the probate court by an administrator was fraudulent, cannot be tried in an action on the administration bond for not settling a true account.</p> <p>Where an action on an administration bond is stated in the indorsement on the writ, to be brought for the benefit of a creditor, if the action cannot be sustained for his individual benefit, judgment cannot be rendered in favor of the judge of probate in his own right for the benefit of all parties interested in the estate.</p>

<p>Jonathan Grout died in 1807, having made a will, in which Hutchins Hapgood, the appellee, was named the executor. Hapgood took out letters testamentary in December 1807, in the county of Worcester, and settled in the probate court of the same county three accounts of administration ; the first, in August 1813, the second, in May 1815, and the third, in December 1819.</p> <p>At a court of probate held in May 1823, John Jennison, John Sanderson and Israel Houghton, the appellants, presented a petition, in which they represent, that the executor has come into the possession of goods, effects and credits belonging to the estate of the testator, for which he has never accounted, and that the accounts which have been rendered by him contain many gross and important errors, which have been discovered since the settlement of the accounts, and that the petitioners have good reason to believe that many frauds and deceitful artifices have been practised by the executor in stating and settling his accounts ; and they pray that he may be cited to render a true, perfect and final account of his administration, so that the errors may be corrected.</p> <p>A citation was issued accordingly, and at a probate court held on January 20th, 1824, the petitioners offered to prove, in order to avoid the effect of the previous settlements and decrees, that the errors were intentionally and fraudulently introduced by the executor into his accounts, for the purpose of depriving the petitioners of their just rights, and that the decrees allowing the same were fraudulently procured and obtained by means of the deceitful artifices and false oaths of the executor.</p> <p>At the same court the executor rendered an account, in which several errors in his former accounts were corrected, and the judge of probate decreed that he should be charged with a balance of $ 3433-45, and that he should pay over this sum to the legatees or devisees, in proportion, according to the will of the testator.</p> <p>From this decree the petitioners appealed, and filed numerous reasons of appeal.</p> <p>At April term 1824, of this Court, as Supreme Court of Probate, the appellee, for answer to the complaint of the appellants, pleaded that the accounts rendered by him as executor were not fraudulent, and that the several decrees of the judge of probate allowing the accounts were not obtained by the false affirmations and oaths of the appellee, but, on the contrary, that the accounts were severally made and rendered by the appellee honestly and in good faith, he, at the time, believing them respectively to be just and true. Issue was joined on this plea, and upon a trial the jury found that the accounts were fraudulent, and that the several decrees allowing them were obtained by the false affirmations and oaths of the executor, and not honestly and in good faith.</p> <p>After this verdict, Samuel Howe (a judge of the Common Pleas) was appointed an auditor to examine all the accounts, and the evidence and vouchers in support thereof, of the appellee, in relation to his administration, and to make a fair and correct statement of the several claims of the appellee against the estate, and of the credits with w'hich he ought to charge himself, and how far the accounts were correct and ought to be allowed.</p> <p>At the hearing before the auditor, interrogatories on the part of the appellants were put to the appellee, some of which he declined to answer, because they had no application to any matters relating to his administration upon the estate within this Commonwealth, but related exclusively to his administration upon the estate of the testator within the State of Vermont, where the appellee had been legally appointed administrator and had given a bond to account for the property of the testator within that State, and had obtained a citation to all persons interested, which had been duly served, to appear at a probate court to be held in Vermont in March 1825, to show cause why the account of the appellee, as executor, should not be allowed. The appellants alleged that the appellee ought not to refuse to answer all the interrogatories, because he had heretofore rendered to the court of probate within this county divers accounts of his administration, embracing matters transacted by him as executor, as well within the State of Vermont as elsewhere, without any exception having been taken by the appellants as to the right or authority of such court to take cognizance of all the subjects contained in those accounts, or any objection being made against a full and final settlement thereof within this Commonwealth ; and that such court has proceeded, with the consent of all persons interested, to pass decrees upon all the subjects of the accounts thus voluntarily rendered ; and that the appellee, although more than seventeen years had elapsed since he accepted the trust of executor, had never rendered any account of his administration to any court in Vermont, nor had he been required to do so. The appellee, after the auditor had decided that he should answer the interrogatories respecting the estate in Vermont, submitted to answer them and to settle his accounts, reserving to himself the right to present the same question to this Court, and protesting against the right of the auditor, or of this Courtj to compel him to settle here any account of his administration in the State of Vermont.</p> <p>At October term 1825 of this Court, the auditor made a report.</p> <p>It appeared by this report, that the appellee originally proved the will and obtained letters testamentary in Massachusetts, and that a copy of the will and of the probate was filed by him in Vermont, where he took out letters of administration. All the testator’s debts were proved before commissioners of insolvency appointed here, and the same have been paid by the appellee. All the parties to the present suit live in Massachusetts, and no person interested in the estate lives in Vermont.</p> <p>In regard to the property situated without tire Commonwealth, which consisted chiefly in land, part of which was sold by the appellee as administrator, under a license of a court of probate in Vermont, for the payment of debts, the auditor reported, that the administration here had been treated by all the parties as the principal administration, the appellee having three times settled his accounts in the probate office here, and having in each instance included an account of his proceedings in Vermont as well as here, and especially, in his accounts furnished to the auditor at the first meeting to hear the parties, having included all the items of debt and credit relating to the estate in Vermont as well as here, and having claimed divers large sums of money, as well for debts due there, as for personal services rendered in the settlement of the estate there ; and inasmuch as the interrogatories objected to related entirely to items contained in the accounts thus furnished to the auditor by the appellee, the auditor decided that the objection urged by the appellee furnished no excuse for not answering the interrogatories proposed by the appellants. If the Court should be of opinion that they have no jurisdiction over the proceedings of the appellee in relation to the estate in Vermont, but that his account respecting the same is to be settled in the courts of that State and not elsewhere, then all the items in the accounts filed in this case and considered by the auditor, in relation to estate so situated, were to be rejected.</p>

This was a bill in eqijity commenced in July 1828, by the plaintiff, as executor of John Codman, against the defendant, as administratrix of Penuel B. Rogers.

Assumpsit to recover of the defendant his contribulive proportion of a joint and several promissory note, for $ 300, dated January 8th, 1828, payable to the Worcester Bank or order in fifty-seven days and grace. On a case stated it appeared, that the note was made by one Howe as principal and one Snow and the plaintiff as sureties. On the back of the note was the following indorsement; — “ I consider myself holden as guarantee for this note. Joseph Griggs.

<p>This was a bill in equity. The plaintiff alleges, that on February 13th, 1812, Bacon and others were made a corporation by the name of the Merino Wool Factory Company, with the powers and privileges, and subject to the duties and requirements, prescribed in St. ISOS, c. 65, defining the general powers of manufacturing corporations ; that the corporation was Organized and became possessed of real and personal estate ; that the plaintiff became a member of the corporation, and as such, in 1814, was seised and possessed of four thirtieths of all the corporate property belonging to the corporation, in common and in partnership with the other members thereof, and entitled to his full proportion of the profits thereof, or of the net proceeds thereof whenever it should be sold or otherwise disposed of, after the payment of debts, &c. ; that the corporation, from the time of its organization until about the month of August 1818, was constantly engaged in the business of manufacturing, and during all that time the plaintiff was a member of the corporation, and entitled to all the rights and privileges of a member, and still is ; that the defendants, Bacon and Brown, having, before August 1818, respectively become seised and possessed of shares in the corporation, and thereby become members, unjustly possessed' themselves of all the property and all the records, books and papers of the corporation, and sold the property in the name of the corporation, and received the proceeds ; that a large balance would remain, after paying the debts of the corporation ; and that the defendants refuse to account to the plaintiff for his share of the balance, and refuse him access to the records, books and papers.</p> <p>The bill prays for a discovery and an account, and for general relief.</p> <p>The defendant Bacon filed a plea to the jurisdiction of the Court as a court of equity.</p>

<p>Assumpsit on two promissory notes made jointly and severally by George Wall as principal and the defendant as surety. One note, dated October 2d, 1826, was for $300, the other, dated December 25th, 1826, for $600, each payable to the plaintiffs in sixty days after its date.</p> <p>The cause was tried before the late Chief Justice Parker. The defence was, that credit was given by the plaintiffs to Wall, after the note became due, and that the principal having failed, the defendant was discharged.</p> <p>It was proved, that on loans made by the bank in this form, it was the practice to renew the note on the payment of twentygve per cent at tge expiration of sixty days, without taking a new note. It was also the practice to continue to credit from time to time, when the affairs of the bank admitted of it, on the payment of the interest in advance, to directors and other customers who exchanged at the bank the bills of other banks for the bills of this bank ; but such exchanges of money were matters of accommodation with the bank, and were not parts of the negotiation for any particular loan or renewal of a loan ; and on such payment of interest under such circumstances, the note lay, with the indorsement of interest upon it, the bank and the borrower understanding that if the bank should want money, the borrower might be called upon before the expiration of his credit thus obtained.</p> <p>The loans secured by the notes in suit were thus continued from time to time until the failure of Wall, which was in October 1828. It was proved by the cashier of the bank, that three months, and also immediately, before the failure, the defendant was told that these notes were in the bank unpaid ; and that the defendant had been a borrower at the bank, but had always paid his notes by instalments of twenty-five per cent, in the usual course of business at the bank.</p> <p>The defendant also contended, that if he was not discharged by the foregoing facts, the plaintiffs were entitled to recover only a small part of the sum demanded, for the following reasons. Before March term 1829 of the Common Pleas, and ‘ -before the commencement of this suit, the plaintiffs brought an action against Wall on a large number of promissory notes made by him to the bank, some of which were signed by him alone, and others by him and a surety. Real estate was attached to secure these notes, among which were the notes now in question. Notes thus sued, to the amount of $ 1267, were secured by Wall by a pledge of nineteen shares in the bank. Judgment was obtained by the bank, at the March term above mentioned, for § 8359, and an execution issued thereon was satisfied, to the amount of $ 6294, by a levy on the real estate attached and by a sale of the shares pledged. The defendant,, insisted that this sum ought to be apportioned on all the notes included in the judgment, so as to discharge such proportion of each of the two notes signed by him, as the whole proceeds of the property bore to the whole amount of the judgment, and thus leave him liable for only the balance of the two notes. The plaintiffs contended, that if any proportionable deduction was to be made from the defendant’s notes on account of the part satisfaction of their judgment, they had a right, in the first place, to appropriate the property secured by the levy, to the payment of such notes in the bank as were not secured by" sureties. But to show that no such deduction should be made, the plaintiffs proved that Wall, before his failure, assigned goods . to the defendant to indemnify him against his liabilities for Wall. The goods were assigned to the defendant, “ to secure him for all legal demands he may have against Wall, and also to secure him for all notes or drafts which he may have signed as surety with Wall or which he may have indorsed,” and the surplus was to be paid over to one Bates. Wall testified, that when he made the assignment, he believed that the debts to the plaintiffs were all secured by the attachment, and that the proceeds of the goods would therefore be sufficient to indemnify the defendant for his liability on a note for him at the Mention bank for $400, and would afford a surplus for Bates, for whom the defendant acted in procuring the assignment, and whose demand was large enough to absorb any surplus after giving an indemnity to the defendant. It was contended, therefore, by the defendant, that this assignment ought not to render him liable to the plaintiffs beyond the proportion above stated, as by virtue of the assignment he was accountable to Bates.</p> <p>If the plaintiffs were entitled to recover the whole or any part of the notes in suit, the defendant was to be defaulted, and judgment was to be rendered for such sum as the Court should find due.</p>

This was a complaint by the clerk of a company of militia in the town of Holden, against the defendant, a private in the company, for disobeying an order of the commanding officer.

<p>Assumpsit upon promissory notes, and upon an account annexed.to the writ.</p> <p>The action was referred under a rule of this Court. The defence before the referees was, an alleged payment to Elijah White, as the agent of the plaintiff. The defendant produced the account, and a receipt in full of the same signed by White, The notes were in the possession of the plaintiff, with the name of the defendant torn off. The plaintiff called White for the purpose of proving that the money was not paid to him by the defendant, and .that the defendant’s name was taken from the notes, and the receipt was given, by mistake. The defendant ■ examined White upon the voir dire, and he testified that he was the authorized agent of the plaintiff to receive the money of the defendant, and that he tore off the defendant’s name from the notes, and that he made and signed the receipt produced ; he further testified', that he had never received any release or discharge from the plaintiff. Thereupon the defendant objected that the witness was incompetent, on account of his interest in the event of the suit, but the referees admitted him to testify; and they made a report, awarding a certain sum to the plaintiff, “ on condition that White shall be adjudged by the justices of the Supreme Judicial Court to have been legally admitted to testify in the cause ; ” otherwise they awarded to the defendant his costs.</p>

Case for obstructing a way leading from a wood-lot belonging to the plaintiff, over the defendant’s pasture, to Flip lane in Leicester. The three first counts in the declaration described the way as appurtenant to the wood-lot; the fourth and fifth alleged a prescriptive right to the way in the plaintiff and all those who were owners of the farm on which he lived.

<p>Assumpsit to recover the assessments upon sixteen shares . in the Central Turnpike Corporation, alleged to have been subscribed for by the defendant. The cause was tried before Parker C. J.</p> <p>The act of incorporation (Si. 1824, c. 13,) provides, that the stock of the corporation shall be divided into 400 shares of $ 75 each ; and that no person shall be held to pay a greater sum than $75 on any share by him subscribed for.</p> <p>The subscription papers contained a promise of the suhscribers to pay the sums which should be assessed on their shares.</p> <p>The subscription paper said to have been signed by the defendant, was not produced, but was alleged to be lost. It was proved that Harrington, the. former clerk of the corporation, was dead, and his administrator, Train, testified that he had come into possession of all Harrington’s papers, among which were some relating to this turnpike, but there was no subscription paper. And the present clerk, a member of the corporation, who succeeded Harrington, made oath that there was no such paper now on the files. At a meeting of the corporation on June 27tb, 1826, E. Warren was chosen clerk pro tempore, and at a meeting on September 20th, 1826, S. Fiske was chosen clerk pro tempore.</p> <p>It appeared by the records of the corporation, that names purporting to be the names of subscribers, with the number of shares, were entered therein ; and that the defendant was present at many of the early meetings, sometimes acting as chairman, and there was parol evidence sufficient, if admissible, to prove that he subscribed for sixteen shares.</p> <p>The subscriptions were made on several papers, which were, at the time of subscribing, in the hands of persons who were then acting as agents or directors of the corporation. These agents or directors were not produced as witnesses ; nor did it appear that any inquiry bad been made of them, although the defendant objected to the admission of secondary evidence until such inquiry should have been made. These papers had been returned to the clerk and were kept very carelessly by him, and some of them were lost.</p> <p>It did not appear, however, that the number of shares, into which the stock was divided, was taken up, until the day on which the last assessment was made, when several persons subscribed for nine shares, the number found, upon an examination of all the documents, to be deficient. This was done in November 1826, and an assessment of $ 13 on a share was then made and notified in the newspapers. It was testified that at this time the directors examined all the subscription papers and books, and found there were but nine shares deficient. This was all the evidence of the amount of the deficiency.</p> <p>Although" the books of the corporation and the treasurer’s list of assessments and payments were produced, it did not appear that any assessments had been made on the full number of shares. The only evidence as to this came from the testimony before stated. The' votes for the assessments were general, not specifying the number of shares upon which the assessments were made. It appeared that the several directors were authorized to receive assessments ; the treasurer’s books, therefore, would not show the number of shares on which assessments had in fact, beed paid.</p> <p>It was testified by Fiske, that in November 1826 the defendant was chosen president of the corporation, but that he declined ; saying that he was willing to pay on his shares, and that the money was ready whenever they chose to call.</p> <p>Some of the subscriptions were conditional in regard to the route of the road, but it was stated that nearly all the subscribers had paid their assessments. The road had been finished.</p> <p>The jury were instructed, that if they believed the first assessment of two dollars on a share was wanted for preliminary expenses, for surveying and locating the road, &c. and if they were satisfied that the defendant had subscribed in the form supposed, the plaintiffs were entitled to recover that sum ; as also the last assessment, if the jury were satisfied that all the deficient shares had been subscribed for before it was laid ; but that the intermediate assessments the plaintiffs could not recover. A verdict was returned accordingly for the plaintiffs.</p> <p>The defendant moved for a new trial, because of the admission of evidence, other than the subscription paper, to prove his promise ; and because of the instructions to the jury.</p>

Assumpsit on a written promise of the defendant to guaranty the payment of a note of hand, purporting to be made by E. Valentine & Co., of which firm the defendant was a partner. A witness testified, that the plaintiff and the defendant being together on the day of the date of the guaranty, it was stated that the plaintiff was to let the defendant have the note to send to Maine, where Valentine was gone, in order to secure it by an attachment in the name of the plaintiff.

Assumpsit for expenses incurred by the plaintiffs in the support of Olive Smith, a pauper, from January 20th, 1827, to January 17th, 1829. Upon a case stated it appeared, that the pauper resided in Uxbridge, and was chargeable to that town from December 5th, 1826, to January 17th, 1829. The settlement of the pauper was in Seekonk. On January 22d, 1827, the following notice from the overseers of Uxbridge was delivered to those of Seekonk:—“Uxbridge, December 5, 1826.

Petition for partition. The estate to be divided consisted of several detached parcels. The parties were desirous that the whole of one parcel might be assigned to one, the whole of another to another, and so on; but the commissioners thought they had not the power to make such a division, under the statute of 1783, c. 41, and so divided each parcel among ad the cotenants.

This was a petition for a writ of certiorari to a justice of the peace, by whom the petitioner had been fined in November 1828, upon a complaint for neglect of militia duty subsequently to the 1st of April in the same year.

<p>In assumpsit against an executor, a count on a promise by the testator may be joined with a count for the funeral expenses, alleging that they were incurred at the requestor the executor, and that he as executor promised to pay therefor.</p> <p>But it seems, that a count on a promissory note of the executor, given in payment of the funeral expenses, cannot be joined with a count upon a promise of the testator.</p>

Assumpsit for use and occupation. At the trial, before the late chief justice Parker, it appeared that the plaintiff derived his title to the land from his father, to whom it had been mortgaged by Gershom Brown, the former owner. On May 7th, 1825, the plaintiff took possession of the land for condition broken. Previously to the mortgage to the plaintiff’s father, Brown mortgaged the land to Samuel Haven junior.

<p>Assumpsit for money had and received. At the trial it appeared, that the action was brought to recover a proportion of the proceeds of wood and timber cut by the defendant on a parcel of land, of which one undivided fourth part was owned by the plaintiffs in right of the wife. The owners of the other three undivided fourth parts had conveyed the whole of the land to one Baldwin, who entered under his deed, and the whole parcel was afterwards levied upon by the defendant, to satisfy an execution in his favor against Baldwin. The defendant entered under his levy, and claimed to be the sole owner of the land, and cut and sold the wood and timber as his own property. Parker C. J. directed a nonsuit, with liberty to move to have it taken off.</p>

<p>An action of trespass de bonis asportatis is rightly brought in the name of the person who was the owner of the goods at the time of the trespass, although he may have sold them before the action was commenced.</p> <p>If the vendee brings such action in the name of the vendor without authority, the defendant should make the objection at-the first term.</p> <p>A judgment in such action prosecuted for the benefit of the vendee, would be a bar to an action of trover subsequently brought by the vendee in his own name.</p> <p>It seems, that a return of an attachment of personal property does not conclusively prove a taking, so as to subject the officer to an action of trespass.</p> <p>The plaintiff in an action of trespass, having alleged in two counts respectively two acts of trespass, to which the defendant pleaded a justification, new assigns a trespass, which he avers to be different from those justified, and the defendant pleads the general issue to the new assignment. Held, that the plaintiff was bound to prove a different trespass from those justified ; and that he could not sustain the action by proving the trespass mentioned in one of the original counts, on the ground that the plea in justification was insufficient ; for if it was insufficient, he should have traversed it or demurred,* *</p>

<p>Trover. The opinion of the Court, drawn up by Shaw C. J., contained the following statement of the facts.</p> <p>This action of trover, for certain tankards, and other articles of church furniture, comes before the Court upon an agreed statement of .facts. The plaintiff claims the property of these articles, in his official capacity, as deacon of a church in Brookfield, and in that capacity he made a demand therefor before the action was brought; and the defendant, admitting that he was in possession of the articles, and insisting on his right to retain them and withhold the possession from the plaintiff, refused to deliver them, and claims property therein, as deacon of the same church. This was sufficient evidence of conversion, if the property was in the plaintiff; and this therefore is the sole question. Both parties rely upon the statute of 1786, which provides that all grants and donations of property, real or personal, made to churches, shall vest in the deacons thereof in their official capacity, to hold to them and their successors in the same office. These terms “ grants and donations, whether real or personal,” seem comprehensive enough to embrace any mode in which property can be acquired, and any species of property; and therefore all property, whether acquired by gift or purchase, or in whatever mode conveyed, for the use and benefit of a church, by force of the statute, vests in the deacons thereof, so that the legal property is in them, though held for the use and benefit of such church. The question in controversy then resolves itself into this ; which of the churches, namely, the one represented by the defendant, or the one represented by the plaintiff, is beneficially entitled to the property thus claimed.</p> <p>It is agreed that the property was once beneficially the property of a congregational church in Brookfield, called “ The Church in the Third Precinct in Brookfield.” A part of the furniture in question was, bequeathed to the church, by this designation, by a Mrs. Bartlett, and was received by the church in 1772 ; in regard to the remainder, it is not particularly known how it was acquired. This circumstance, however, is immaterial, it being admitted, that however acquired, the property of the whole vests in the samé manner, the legal property depending not upon the mode of acquisition, but upon the identity of the church, which is beneficially interested. Previously to the incorporation of the town of North Brookfield, - in 1812, there were three territorial parishes in Brookfield, and the above designation “ the Third Precinct in Brookfield,” was sufficiently accurate and descriptive. But by the incorporation of the second parish into a distinct town, it in some measure ceased to be so ; and the third precinct was therefore sometimes called the second society or parish in Brookfield, and sometimes the South Parish ; but it is agreed that all these names designated but one religious society, which was that incorporated by the name of the third precinct, in the year 1756, and over which Mr. Stone was settled in 1801. The furniture in question was used by the said church, in the third precinct, until the formation of the Evangelical Society in 'Brookfield, with which the major part of the individuals, then constituting the said church, united, and have ever since worshipped, having filed with the clerk of the third precinct, certificates of their having become members of the Evangelical Society, and thus ceased to be members of the third precinct. In April 1827 the civil contract of Mr. Stone, the ordained minister of said precinct, ceased by mutual consent. In the contract of dissolution between the parish and Mr. Stone, the latter reserved the right to be still deemed the pastor of the '.hurch existing in that society, and to have the occasional use of their meetinghouse, until it should be occupied by some person engaged by the parish to which reservations the parish, as far as their rights were concerned, assented. In May 1827, a major part of said church, including the deacons, with others, constituting a minority of the parish, commenced attending upon the ministrations of Mr. Stone, at a place in the vicinity of the meetinghouse, and continued so to do till the 24th of August of the same year, when, by a written agreement, they formed themselves into a new religious society, under the name of “ The Evangelical Religious Society in the South Parish or Precinct of Brookfield.” This agreement recites the dissolution of the civil contract between Mr. Stone and the said congregational society, contrary to their wishes, and against their individual counsels, and that the pulpit of said parish had been supplied by said society with teachers, who, in their opinion, inculcated doctrines and precepts contrary to those taught in the bible, and therefore they united together as a society, under the name above mentioned, for the purpose of supporting public worship and receiving religious and moral instruction, agreeably to the dictates of their consciences, and agreed to conform to the laws of the Commonwealth, in relation to religious societies formed for such purposes. The society was formed and organized under the statutes of 1811, c. 6, and 1823, c. 106, and gave to the members composing it, certificates of membership, which were duly filed with the clerk of the third precinct, and thereby the said members became exempt from the payment of taxes, and from all other duties and obligations as members of the parish, and ceased to be members thereof. Two of the male members, and a number, though a minority, of the female members, remained with the old society. This society shortly after settled the Rev. Mr. Noyes, and for convenience may be designated Mr. Noyes’s society. On the 9th of October, an ecclesiastical council, convened at the request of Mr. Stone and that part of the church that attended his ministry, came to a result, approving of the course pursued by them, and recommending to them to make great exertions and sacrifices, to support their pastor separately from the parish, and maintain public worship, and if necessary, to apply to a missionary society for aid. In November 1827, a majority of the male members of the said third church, as it existed previously -to the formation of the Evangelical Society, Mr. Stone continuing to act as their moderator and pastor, at a church meeting duly notified, voted to unite with the Evangelical Society, in the support of public worship. In December, this society formally invited Mr. Stone to act as their minister ; and from August preceding, till the time of the .commencement of this action, the said major part of said church attended public worship in such places as could be conveniently obtained, in conjunction with the Evangelical Society, celebrating from time to time the Lord’s Supper, under the pastoral care of Mr. Stone.</p> <p>The two remaining male members of Mr. Noyes’s society, upon due notice of a church meeting, proceeded to act as the church of that society, by joining in the call to Mr. Noyes, uniting with the parish committee in calling an ordaining council, and in admitting other members. In October, these two members, assuming to act as the church of the third precinct, proposed a mutual council to Mr. Stone to dissolve his relation to the church, but Mr. Stone refused to.recogize them as such church, and for this and other causes, no council was called for this purpose. The ecclesiastical council, called to assist in the ordination of Mr. Noyes, recognized these two members and their associates, as the third church, and proceeded to ordain Mr. Noyes, as the minister and pastor of the third church and society in Brookfield. From the settlement of Mr. Noyes, the said two members and their associates, claiming to be the said first mentioned church in the third precinct in Brookfield, have acted as a church under his pastoral care, admitting new members, attending upon the communion, and continuing from that time to be associated with said third precinct. Of this church the plaintiff was duly elected sole deacon. Both of these bodies claim to be the true church, and each of them, by some official act, has passed some censure upon the members of the other, and upon their claims and proceedings.</p> <p>The case was argued in writing.</p>

<p>Writ of entry to recover seisin of two acres of land in Charlton. The demandant declared upon his own seisin within thirty years and a disseisin by the tenant. The tenant pleaded non disseisivit.</p> <p>At the trial, before the late chief justice Parker, it appeared that the land demanded is part of a farm formerly belonging to Jacob Davis. The demandant produced a deed made to him by Eunice Oakes on April 14th, 1817, and proved that at the time of the execution and delivery of this deed he was, and for several years before had been, in possession of the demanded premises under Eunice Oakes; and he there rested his case.</p> <p>The tenant gave in evidence a deed from Jacob Davis to Caleb Ammidon, dated June 12th, 1789, of the farm, excepting out of the grant the demanded premises. Also a deed from Ammidon to Abijah Oakes, dated October 12th, 1792, of the whole farm, including in the description the demanded premises, with covenants of seisin and warranty. Under this deed Abijah Oakes entered upon and occupied the farm generally, and the demanded premises, in the manner hereafter 'tated. The tenant also produced a deed of release from Jacol Davis to Ammidon, of the part excepted out of his former deed. This deed is dated September 25th, 1796, at which time neither Davis nor Ammidon was in possession. The demand-ant objected to the admission of this deed, but the objection was overruled.</p> <p>The tenant then produced a deed of the demanded premises from three of. the heirs of Abijah Oakes, there being four, dated August 14th, 1827, at which time the demandant was in possession, claiming to hold the same under bis deed from EuOakes. The deed thus produced was delivered upon the premises, an entry having been made for the purpose of conveying. The admission of this deed was objected to, on the ground that there being an adverse possession of the demand-ant under claim of right, nothing passed by the deed. This objection also was overruled. The tenant knew, at the time of the bargain for the land with the heirs, and of the execution of this deed, that the demandant was in possession claiming title.</p> <p>The tenant then proved by Isaac Oakes, one of his grantors, son of Abijah Oakes, that the father occupied the land demanded, and cultivated the same, in 1792, and from that time until 1807, when be removed to Stockbridge ; and that he cultivated it and took the crop in 1808 ; that in 1809, the wit ness, at the request of his father, let the land to one Brown for $ 8, which were paid to the witness, and by him to his father ; that in 1810 the witness made a new bargain with Brown, who was to pay $ 6 for the use of the land, but whether that sum was paid or not, the witness did not know. In 1811 the demandant occupied the land, and he continued to occupy it, until the disseisin alleged to have been committed by the tenant. Abijah Oakes died in 1814.</p> <p>To rebut this evidence the demandant offered to prove, that Eunice Oakes, mother of Abijah, who lived in the house with her son, but supplied her own food at his table, had been in the sole occupation of the land demanded, for more than forty years before the action was commenced, cultivating it as a garden, having fruit-trees there, &c. But it was stated that this evidence principally resulted from declarations of Abijah Oakes, not made while on the land and cultivating the same, but at various times and places away from the land, tending to show that he worked on and cultivated the same for his mother as her property.</p> <p>The judge ruled that evidence of this nature was inadmissible. Whereupon the demandant became nonsuit, with liberty to move to have the nonsuit taken off; and if the foregoing rulings were wrong, a new trial was to be granted ; otherwise the nonsuit was to stand.</p>

<p>A debtor,e< in consideration of his indebtedness to the plaintiff,” conveys to him, by an instrument in writing, certain personal property, 66 and it is agreed that the debtor shall remain in possession of the property until default of payment of what may be due to the plaintiff, at such time as he shall make demand of payment.”</p> <p>Held, that this mortgage was valid as against creditors, it being bond fide, and a delivery of the property having been made before any attachment or levy by any creditor, though not at the lime of the execution of the instrument ; and that it purported to secure, not only subsisting debts due to the plaintiff, but also to saxre him harmless from liabilities which he might subsequently incur for the debtor.</p>

This was an action for breaches of covenants against incumbrances and of warranty, contained in a deed of land, dated January 13th, 1825, given by the defendant to the plaintiffs.

Trespass for breaking the plaintiff’s close, and for taking and carrying away therefrom a quantity of corn. The cause was fried before the late chief justice Parker.

Assumpsit on a promissory note, dated March 11th, 1828, for $ 50, payable to Joshua N. Bartlett or order, in thirty days, and indorsed in blank. Trial before the late chief justice Par~ her. The defence was, that the note was dishonored at the time when it came to the hands of the plaintiff, and that being an accommodation note between Bartlett and the defendant, without any valuable consideration, the plaintiff was not entitled to recover.

<p>The parties submitted this case to the determination of the Court, upon an agreed statement of facts.</p> <p>The plaintiff, as administrator with the will annexed, of William Watson, brought the action for one half of a sum of money paid by the testator upon a judgment recovered on a guardianship bond given by Samuel D. Watson as principal, and the testator and the defendant as sureties. Samuel D. was insolvent, and the judgment, which was against the three obligors, was satisfied wholly by the testator. The testator died in March 1828. In his will, after divers pecuniary legacies, he devised all the residue of his estate, real and personal, to his son Samuel D., and appointed him executor. Samuel D. being unable to procure bondsmen, did not take upon himself the execution of the trust, and the plaintiff was appointed administrator with the will annexed. The estate of the testator was more than sufficient to pay the debts and pecuniary legacies, but the personal estate alone was not sufficient for that purpose. A considerable residue of the testator’s estate would remain to Samuel D., consisting of land, which was, immediately on the death of the testator, attached by the creditors of Samuel D. and levied upon to satisfy the judgments recovered by them, and Samuel D. was still wholly insolvent. If the plaintiff should fail to recover the debt sued for in this action, it would be necessary, for the payment of the debts and pecuniary legacies of the testator, to sell some part of his real estate, which had been so levied on by the creditors of Samuel D. If the plaintiff should recover, the defendant would be without remedy for the amount he might be compelled to pay, Samuel D. being utterly destitute of property. The payment of the judgment on the bond was made by the testator some years after the making of his will. No demand was made by him upon the defendant for contribution.</p>

Upon a case stated by the parties it appeared, that this was an action of debt upon the following writing, which was signed and sealed by the defendants in New York, and sent by mail to Bird :—“Know all men by these presents, that we, John Everett and John Washburn, of Litchfield, Herkimer county, State of New York, are held and firmly bound to Abner Bird and Thomas Kendrick junior, of the town of North Brookfield, State of Massachusetts, Worcester county, to pay unto said…

<p>At the bottom of a promissory note on demand, was written the memorandum, “ one half payable in 12 months, the balance in 24 months.” Held, that it was competent to either party to the note to prove by parol evidence the time when, the person by whom, and the circumstances under which the memorandum was affixed to the note.</p> <p>Such memorandum being proved to have been affixed to the note before it was delivered to the promisee, and so constituting a part of the contract, it was held, that the contract was to be construed according to the written terms ; and that parol evidence, to show that the stipulation for a term of credit was provisional, namely, if the promisor should remain solvent, was inadmissible.</p> <p>It was also held, that there was not such a repugnance between the memorandum and the words “on demand,” as would invalidate the contract, but that the memorandum limited the generality of those words.</p>

Assumpsit. Plea, the statute of limitations. Upon a case stated, it appeared that the action was upon a joint note signed by William Watson and his son Samuel D. Watson, dated April 15th, 1815, promising to pay the plaintiff $ 111-36, on demand, with interest. The interest was indorsed in the handwriting of William, up to'January 1818.

This was a petition to this Court at March term 1830, in Suffolk, in which the inhabitants of Mendon represent, that a petition was presented to the county commissioners of the county of Worcester, by Amariah Chapin and others, upon which the commissioners, at a meeting held on the second Tuesday of September 1829, laid out and established a public highway partly in the town of Mendon ; that at the same meeting the inhabitants of Mendon preferred to the commissioners a…

The petitioners represent, that they are owners of certain land in Millbury ; that the respondents, by virtue of their act of incorporation, have located and constructed a reservoir to the Blackstone canal, by reason of which the petitioners’ land was overflowed with vyater and rendered good for nothing ; that certain commissioners, appointed pursuant to the act, had made an estimate of the damages sustained by the petitioners, with which they were dissatisfied, and upon…

Indictment for a nuisance to a highway in North Brook-field. The parties agreed upon the following facts. In 1773, the selectmen of Brookfield (then embracing the territory of North Brookfield) laid out the highway in question.

<p>Where tenants in common of land, including a town road passing through the same, made a partition by mutual deeds of release, in which the bounds of the tracts so released were described as “ beginning at a stake and stones on the side of the town road,” &c. thence by various courses (< to said road, thence by said road to the place of beginning,” it was held, that the road was not included in the partition, but that the parties still remained tenants in common thereof, subject to the public easement.</p>

Fletcher and Gardiner offered the petition of the defendant, in which he represents, that in January 1829 he was tried before Morton J. upon an indictment for an alledged libel upon John Keyes ; that he endeavoured to satisfy the jury by proof, that the supposed libellous matter was true, or if not true, that he had such reasonable grounds to believe it to be true, and such good motives and justifiable ends for the publication, as necessarily rebutted the imputation of…

Assumpsit by the administrator of G. Cooper, on a note made by the defendant to the intestate. Plea, the general issue. The note declared on was produced by the plaintiff. The defendant then gave in evidence a judgment rendered in 1824 against Cooper as principal and the defendant as his trustee, in favor of N. M.‘Intire. Upon this judgment an execution had been issued, but had not been returned.

<p>This was an action of covenant broken, against Samuel Learned and Thomas Learned, founded upon a deed of indenture dated May 7th, 1824, between Daniel Jackson and Polly nis wife, of the first part, the defendants of the second part, and the plaintiff of the third part. The indenture recites, that Daniel and Polly Jackson have, by their deed bearing even date with the indenture, conveyed to Samuel Learned all their joint and several estate in the Philadelphia Packet wharf, in Boston ; that Samuel has made his promissory note to Daniel Jackson, for $ 2500, payable in six months, as a consideration for the conveyance to Samuel of Daniel Jackson’s right in the real estate above mentioned ; that it is the intention of the parties, that a sum of money shall first be raised out of the estate, sufficient to pay Samuel the amount of bis note to Daniel Jackson, and that then the net rents and profits and income of the estate shall be paid to Polly Jackson to her sole and separate use, without being subject in any way to the authority or control of her husband or to his debts, and that if the estate shall be sold during the life of Polly Jackson, as provided in the indenture, the proceeds thereof, after raising the amount of the note and making deductions for the charges of managing the estate, shall be placed out at interest on good security by Samuel, or paid over to Polly Jackson, for her sole and separate use, without control of her husband or liability for his debts, or to such person or persons as she by any writing under her hand, attested by at least two credible witnesses, shall, notwithstanding her coverture, appoint at her election ; and if the same shall not be sold in her lifetime, Samuel shall, immediately on her decease, convey the same to such person as she shall in like manner appoint, and in default of such appointment, to her right heirs. And Samuel and Thomas Learned covenant with Richardson, that Samuel and his heirs, so long as he and they shall hold the estate, shall collect the rents and income, and after deducting reasonable costs and charges, pay over the residue to Polly Jackson, into .her own hands, for her sole and separate use, half-yearly, so long as she shall live, and in such manner as not to be subject to the control or go to ,the use or be liable for the debts of Daniel Jackson, and that Samuel and his heirs shall at any time, during the fife of Polly Jackson, sell and convey the estate to such person, at such time, and for such price, as she shall, notwithstanding the coverture, by any writing under her hand, attested by two witnesses, appoint and direct, and shall pay over the proceeds, after deducting enough to pay the amount of the note to Daniel Jackson with interest.</p> <p>The defendants pleaded twenty-seven pleas, some of which terminated in demurrers, and others in issues to the country. In these last they pleaded, that Polly Jackson never directed Samuel Learned to sell the real estate and invest the proceeds ; that she did not give such a direction in writing ; that Samuel never received any money upon a sale of the estate ; that she never directed him to take any security ; that she never made an appointment whereby Samuel was required to pay or deliver over any money or security ; that no sufficient demand was ma<Je on him ; and that no demand was made on him at a reasonable time or place.</p> <p>The plaintiff produced the deed from Daniel and Polly Jackson, of May 7th, 1824, referred to in the indenture ; — also a deed from Samuel Learned to the .city of Boston, dated June 30th, 1824 ; — several accounts between Samuel Learned and Polly Jackson, and receipts by Polly Jackson ; — also the city auditor’s book, showing the amount of city stock standing in the name of Samuel, and that he received the interest upon it until January 1828, when the interest was received by Thaxter and Hunnewell.</p> <p>The plaintiff then proved by the testimony of John Tarbell, that on September 19th, 1827,'at 40 minutes past 6 o’clock, P. M., he delivered to Samuel, at Lexington, which is six miles from the place of residence of Polly Jackson and of Samuel, a writing signed by Polly Jackson in the presence of two witnesses, requesting and directing Samuel to pay and deliver over to her, for her separate use, according to his covenants in the indenture, all the moneys and securities taken by him upon the sale made by him to the city of Boston, of her share in the Philadelphia Packet wharf, after deducting her proportion of the charges and expenses of the sale, and the amount due to Samuel on account of the note for $2500 given by him to Daniel Jackson ; that it was a very dark and stormy night, and that the writ in this case was served the next morning at one minute after midnight, by attaching the property of Thomas Learned. The witness further testified, that near night the next day, when he arrested Samuel Learned, the latter said, “ I have got all the property ; I have not spent a dollar of it; it is safe.” The witness requested him to deliver it to the witness, saying that he was authorized to receive it and that all the plaintiff wanted was security ; but that Samuel refused, saying, “ I have got all the property and I will keep it.”</p> <p>Two other witnesses testified, that more than a year before the date of the written request, they heard Samuel say to Mrs. Jackson, that “he had got her property ; he intended to keep it; and he would not let her have any more than he thought proper, as he had her daughter to maintain.”</p> <p>Daniel Jackson, the husband of Polly, testified, that one or two days after the attachment of the property of Thomas Learned, he heard him say to Mrs. Jackson, that it was a family affair, and she had better settle it; she refused ; he urged her, but she still refused. He then repeated, you had better settle it, for from the information I get from my brother, my property which you have attached is all you will ever get, and if I had received reasonable notice, you would not have gotten that. This witness further testified, that he had often heard Samuel, both before and after the commencement of this suit, say that he had gotten the property, and that he meant to keep it; he did not mean to pay it over. On cross-examination, the witness could not say positively that he had heard Samuel make the above declarations within a year before the commencement of this action.</p> <p>The defendant contended, that the above evidence, all of which they seasonably objected to, was not competent nor sufficient to support the issues on the part of the plaintiff. But the judge ruled that it was competent for the purpose for which it was introduced, and he instructed the jury that it was such, that upon it they might find a verdict for the plaintiff. Whereupon a verdict was taken for the plaintiff by consent, subject to the opinion of the whole Court.</p>

This was a petition for a writ of certiorari to the county commissioners, as successors of the commissioners of highways.

This petition was presented at this term, setting forth, that at the recent term of this Court in Berkshire, the inhabitants of the town of Adams presented a petition, in which they stated that the county commissioners, in September 1829, established alterations in a certain county road in that town ; that in July 1830, the commissioners issued notice to the inhabitants of that town to work the road as so altered, and to have ^e same completed by the last Tuesday of…

Upon the application of Ephraim Tufts, whom the judge of probate of the county of Suffolk had appointed guardian of Margaret F. Holst, a minor, a writ of habeas corpus was issued to Hammond, a member of the society of shakers at Harvard, commanding him to bring the minor into court.

This action was submitted, under a rule of court, together with all other demands between the parties, to three referees, at March term 1829 of the Court of Common Pleas. The referees made a report in favor of the plaintiff; whereupon the defendant moved in that court, to set aside the award and discharge the rule, on the ground of partiality in the referees.

This was a writ of entry brought upon a mortgage of certain real estate, made by one Amos Needham to Thomas Richardson, the intestate. The tenant disclaimed as to one undivided moiety, and claimed to hold the other moiety under Samuel Needham.

<p>Assumpsit upon a promissory note made in the name of Cooper, Gould and Robbins, who were partners, payable to Robbins or his order, and by him indorsed to the plaintiff. Gould and Robbins were defaulted, but Cooper pleaded the general issue, that he did not promise with Gould and Robbins. The note was signed by Gould in the name of the firm. The defence was, that the note was fraudulently obtained by Robbins for the purpose of paying his private debt to the plaintiff, and that the plaintiff received it from Robbins in satisfaction of his private debt, knowing that it had been thus obtained. A verdict was found in favor of Cooper, and judgment was rendered for him for his costs. Afterwards the plaintiff moved for judgment against the two defendants who had been defaulted, and Gould resisted the motion.</p> <p>The cause was argued in writing.</p>

This was an indictment for selling spirituous liquors, and permitting the purchasers to drink them, in a building of the defendant, not an apartment or dependence of his dwelling-house, he being only licensed to sell spirits in his dwellinghouse and the apartments and dependencies thereof. At the trial, before Morton J., the following facts were admitted or proved.

Trespass on the case for the destruction of the plaintiff’s exclusive right to a fishery in Merrimack river in front of the defendant’s lot and near the bank of the river included in the lot.

This was a review of an action of assumpsit brought by Harvard College against Makepeace, in which judgment was rendered against Makepeace by the Court of Common Pleas, in June 1827, upon a default, for $ 1353-59 and costs. The parties stated the following facts. The original action, which was commenced in February 1826, was founded upon a promissory note, dated March 15th, 1824, made by Makepeace to the college for $4310-50, on demand with interest.

Writ of entry, in which the demandants count upon their own seisin in right of the wife, within thirty years. The parties stated the following facts. Josiah Sawtell, being seised in fee of the demanded premises, on September 13th, 1775, made his last will, and therein devised the same premises to his wife during her life.

Trespass quare clausum fregit. The defendant pleaded, 2dly, a private way by prescription ; — and 4thly, that he was seised of an adjoining close, and as appurtenant to it he had a right at all seasons, and in all directions, to pass over the plaintiff’s close. The plaintiff, in his replication, denied the right of way as set forth in the pleas ; and as to the second plea he now assigned extra viarii, fyc. The defendant joined the issues tendered.

This was a writ of entry sur disseisin, in which the demandant, as the settled minister of the parish in South Reading, demanded four acres of land back of the meetinghouse, and near the pond in that town. He sets forth in his declaration, that his predecessor was seised of and enjoyed the same in right of the parish, until his death ; upon which the tenant entered and wrongfully keeps the demandant out.

This was an action of assumpsit, in which the plaintiff declared that the defendants insured certain buildings of the plaintiff in Hopkinton, for the term of seven years from the 16th of January, 1827, and that on the 31st of the same January the buildings were burnt.

<p>This was an action on the case against the defendant, for refusing the plaintiff permission to vote at a parish meeting in Malden.</p> <p>On the trial, before Wilde J., it appeared that formerly the town of Malden consisted of one parish, and transacted their parish business in town meeting, the town clerk and other town officers sérving as parish officers.</p> <p>By St. 1819, c. 128, a baptist poll parish was created in Malden. Nearly at the same time a voluntary religious society of episcopalian methodists, and in 1826, another voluntary religious society of methodists, were duly organized in the same town. These three societies have remained regular societies, maintaining religious worship.</p> <p>In April 1828, another voluntary religious society was duly organized in Malden, and was called “ The Congregational Religious Society for the Support of Orthodox Preaching in Malden.”</p> <p>The remaining inhabitants of Malden constituted the First Parish in Malden, and they organized themselves as a parish, and chose parish officers.</p> <p>On the 20th of October, 1828, a meeting of the First Parish was regularly held for parish purposes. At that meeting the defendant, who had been legally chosen and qualified as the' clerk of the parish, acted as such, and in that character presided at the meeting in the choice of a moderator therefor ; and while the defendant was so presiding, the plaintiff claimed a right, as a member of the First Parish, to vote, and offered his vote for such moderator. But the defendant refused to receive it, and for such refusal the present action was brought.</p> <p>At the time when the plaintiff so offered to vote, he was more than twenty-one years of age, and had been an inhabitant in Malden, paying annual State, county and town taxes on his poll and estate for several years, and he was then in all respects a legal and qualified voter in town affairs in Malden ; and for several years prior to 1828, he had been a regular member of the First Parish. He was the owner of a pew in the meetinghouse of the First Parish, but this is a territorial parish and no tax has ever been levied or assessed on the pews.</p> <p>At the time of the organization of the abovementioned Congregational Religious Society, in April 1828, the plaintiff became a member of it and assisted in its organization, and he was then chosen one of the assessors of the society.</p> <p>On June 23d, 1828, the plaintiff obtained from the clerk of that society, and filed with the clerk of the First Parish, a certificate as follows : — “ Malden, June 23, 1828. This certifies that Capt. Uriah Oakes is a member of the Congregational Religious Society for the Support of Orthodox Preaching in said town. Attest, Nathan Newhall, clerk of said society.”</p> <p>On the 29th of July, 1828, the plaintiff obtained from the clerk of the same society and filed with the defendant, the clerk of the First Parish, a certificate as follows :— “ Malden, July 29, 1828. This certifies that Capt. Uriah Oakes, at his own request, ceased to be a member of the Congregational Religious .Society for the Support of Orthodox Preaching in said town. Attest, Nathan Newhall, clerk of said society.” On presenting this certificate, the plaintiff demanded of the defendant a certificate that the plaintiff had joined and become a member of the First Parish ; which the defendant declined giving him.</p> <p>The First Parish has a fund for the support of the ministry, for the management of which an act of the legislature was passed on June 20th, 1807.</p> <p>The plaintiff was nonsuited; but if, in the opinion of the Court, he had a legal right to maintain his action against the defendant for refusing to receive his vote, the nonsuit was to be taken off and a new trial granted.</p>

<p>The plaintiffs, as owners of mills situated on Charles river, in Natick, brought an action on the case against the defendant, as owner of mills situated on the same river, in Dover, about six or seven miles below the plaintiffs’ mills. The writ was dated March 26th, 1829.</p> <p>The declaration contained two distinct counts ; one, for damage done to the plaintiffs’ ancient mills ; the other, for damage done to a mill site and privilege, upon which the plaintiffs had begun to erect a dam and cut a canal, and taken other measures to erect and complete a mill.</p> <p>On the return of the writ, the parties agreed to refer the action and all matters in dispute between them, to the determination of Samuel P. P. Fay, William Baylies, and James F. Baldwin, esquires. It is agreed, in the submission, that the referees shall determine what sum, if any, the plaintiffs shall recover as their damages in the suit, and in what way the defendant has a right to and may have and keep his dam below the plaintiffs’ mills or mill sites, as it respects the place, height and construction of such dam, and the places, width, height, magnitude, construction and number of the waste ways and sluices thereof, and every other thing that may in any way affect the raising or Bowing of the waters above such dam, without violating the legal rights of the plaintiffs ; and the referees shall order and direct the way and manner in which the same shall from time to time and at any and all times hereafter be constructed and kept, accordingly, and shall in all other respects determine and settle the rights of the parties in the premises, and make such special award, and order such specific performance thereof, as the nature of the case may in their opinion require, always having regard to the legal rights of the parties. And shall make and fix all such permanent marks and monuments in or near the river or dam, to mark and limit the rights of the parties as it regards the height of the dam and the water, and to prevent future disputes and litigation, as shall be deemed expedient, and shall designate what sluiceways and waste gates the defendant shall have, keep, and provide, and how he shall manage the same to let'off the superabundant water, and to prevent its rising above such marks or monuments as they may designate.</p> <p>The referees made their report, in which they award, among other things, that the defendant’s right of flowing at the place where his present dam is situated, and by means thereof, as acquired by actual use for twenty years previous to June 1828, does not exceed one foot and twenty-nine hundredths of a foot above the sill in that dam, on which his three feet flash gates now’ rest; that since June 1828, he has raised the water of the river by means of his present dam, higher than he had a right to do by his previous use, so as to throw back the water on the plaintiffs’ land, and injuriously to affect the working of their mills ; that his dam and gates ought to be so reduced and regulated, as that the water in its usual and ordinary state or flow, should not be raised immediately above the dam, to a greater height than the point above mentioned.</p> <p>On motion of the defendant, in the Court of Common Pleas, this report was recommitted to the referees, for the purpose of their reporting to the court their decision upon all questions of law which either party might request, and so much of the evidence as was necessary to present the questions fairly ; and they were empowered to go into the reconsideration of the case generally, or in part, as to law and fact, so far as they might think expedient.</p> <p>The referees made a second report, confirming their former one, and setting out the grounds of their decision. They state, that the plaintiffs own several mills on Charles river, and about seven miles above the mills of the defendant. The plaintiffs a^so own the Lnd on the right side of the river, and to the thread of it, for about one hundred rods below their mills and dam. Within this distance there is a fall in the river, and another mill or mills might be placed on their land on the bank near the lower boundary, to be driven by water brought by a canal from their present pond ; by which means they would gain an additional head and fall; and this privilege enhances the value of their property. On the 28th of May, 1828, the plaintiffs having had an application for the purchase of their mills and privileges, caused a survey to be taken of the river from their dam to the defendant’s dam, and they informed him of their intention to occupy the lower privilege on their land, and that they had on the preceding day begun to dig a canal for a mill to be erected near the lower boundary of their land, in order to use the fall between that point and their dam. In pursuance of that intention, the plaintiffs had begun to dig the canal, and in the course of a few days they removed a considerable quantity of earth in the progress of that work; and about the same time they dug a trench at the margin of the river, at the lower end of the proposed canal, and placed a mud sill therein, as the first step towards the erection of a mill. Within a few days, and early in June 1828, the defendant, who was about erecting a new dam on the site of his existing one, raised a temporary dam above, which flowed the water upon the plaintiffs’ land, so as to interrupt their work. In the course of the summer of 1828, he erected a new and permanent dam, which is that complained of, much higher than his former one, by which, from about the 20th of October, 1828, to the date of the plaintiffs’ writ, the water has been raised higher by a foot and seventy-one hundreths of a foot, than it had been usually raised, at any former period, either by the dam or dams which for the last thirty years have stood in the place cf the present one, or by the ancient dam, called Fisher’s dam, owned by the defendant and his predecessors, which stood about twenty rods above, and which was removed upon the erection of the one on the present site. This additional raising of the water was not indispensably necessary to driving the defendant’s mills, which in number and description were the same as had been there for the last twenty years or more, although such additional head would increase their power ; but it throws back the water upon the aprons of the plaintiffs’ mill wheels, and fills the channel of the river immediately below, so as injuriously to affect thei'r operation. Perhaps the greater part of this additional flow might take place without actually injuring the plaintiffs’ mills, but no part of it can take place without flowing their land and depriving them of the benefit of the fall below their mills and within their own land, either for the purpose of more readily discharging the water from their mill wheels, or of erecting a new mill below. The plaintiffs claim damages for any flowing upon their lands or mills by means of the defendant’s dam, not justified by at least twenty years’ use previous to June 1828. The defendant claims to have ae- ■ quired a right, by a use of twenty years or more, immediately previous to June 1828, to raise the water as high as he has in fact raised it since that period by his present dam. He also claims a right to raise it as high as the owners of Fisher’s dam had acquired a right by that dam to raise it, although he may never have raised the water so high by the lower one which was substituted for it. And he further claims, that if he had not by either of those dams acquired a right to raise it as high as he has done since ,Tur\e 1828, he has a right, under the acts for the support and regulation of mills, so far as regards the fall below the plaintiffs’ mills and overflowing their land, to raise and continue it at that height, which is one foot and seventy-one hundredths of a foot higher than that fixed by the award of the referees, subject to damages, as provided in those acts ; and in that case the plaintiffs’ remedy, if any, was by complaint under the statute, and not by action at common law, and the referees, under the submission, could not award respecting it ¿ but if the referees ought to award in regard to it, they should give damages, and not restrain the defendant from flowing.</p> <p>Upon these facts and claims the referees determined, that the defendant had raised the water higher than he was authorized to do by his use previous to June 1828, and that his flowing should be reduced and fixed as in the award, at the point to which he had acquired a right to flow by twenty years’ previous use. This reduction was greater than what was necessary t0 rel’eve th® plaintiffs’ mills from back water, but not greater than was necessary to relieve the privilege below, and take off the water, so as to give the plaintiffs the benefit of the fall below', within their land. The referees were also of opinion, that the defendant can claim no right under the old dam, that having been abandoned ; still they were not satisfied from any evidence in the case, that the customary flowing under that dam was higher than the point fixed by the award. The referees were of opinion, that the terms of .the submission authorized, and that the justice of the case required, .that their . award should be founded upon the rights acquired by the defendant, and those under whom he claims, by tw'enty years’ previous use. And that they were'not obliged, having regard to the rights of the parties, to determine in favor of the right claimed by the defendant under the statutes made for the regulation of mills, and to authorize by their award his raising the water so as to fill the channel of the river against the plaintiffs’ land, extinguish the fall therein, or destroy a privilege which they had begun to occupy as such, although no mill was in fact erected.</p> <p>Judgment was rendered in the Common Pleas upon this report, to which judgment the defendant excepted : —</p> <p>1. Because the referees determined, that the defendant was limited, as to the height of his dam,-by the use of himself and his predecessors, for twenty years previous to 1828.</p> <p>2. Because they determined, that the defendant had no legal right, by his dam, to throw back the water towards the plaintiffs’ mills in such a manner as to destroy a fall or declivity in the water of the river, at a place where the plaintiffs own the land on one side only of the river ; although by such throwing back the water no other damage was done to the plaintiffs.</p> <p>3. Because they determined, that the defendant has no legal right to raise his dam to any height which will not throw back the water in such a manner as injuriously to affect or impede the existing mills of the plaintiffs.</p> <p>4. Because they determined, that the plaintiffs have a right to reduce or cut down, and that the referees have a legal right to order a reduction or cutting down of the defendant’s dam, although it does not or may not raise the water so as to obstruct or retard the wheels of the plaintiffs’ mills, but only so ..s to overcome the fall in the bed of the river opposite to the plaintiffs’ land, where they own only on one side of the river.</p>

This was a petition for a writ of certiorari, in order to quash the proceedings of two justices of the peace, who had administered the poor debtor’s oath to one Snell.

Writ of entry sur disseisin for fourteen and a half acres of land in Plympton. Plea, nul disseisin. At the trial, before Morton J., it appeared in evidence, that before the year 1780 Zechariah Stan dish died seised of the demanded premises, leaving a widow, Olive Standish, to whom the premises, together with fourteen and a half acres of other land adjoining, were in 1780 assigned as dower by order of the judge of probate.

<p>In a statute for protecting a beach from damage, a clause that any person having “ any legal title in any part thereof,” shall be compensated for any injury he may sustain under the provisions of the statute, is broad enough to cover an injury to a right of common in tile beach.</p> <p>It is not necessary, in order to sustain a grant by a vote of a town, to show a consideration for the grant.</p> <p>A grant of a right of common to the inhabitants for the time being (not incorporated) of a certain territory, conveys no right to persons who are not inhabitants at the time of the grant.</p>

This was an action upon a bond given by Jeremiah Stetson, executor of the last will of his father, as principal, and two sureties, conditioned for the payment of debts and legacies. The action was brought for the benefit of Elizabeth Stetson, by the plaintiff, in his capacity of judge of probate, against the defendant as executor of Samuel Barstow, one of the sureties.

This was an appeal from a decree of the judge of probate of Plymouth county. The appellant was the administrator on the estate of Zabdiel Sampson. In his administration account Be had charged certain sums, as the intestate’s contributory «hare, as a member of the Plympton Wool Manufacturing Company.

<p>This was an appeal from a decree of the judge of probate for the county of Plymouth, by which, in virtue of his discretionary power under St. 1805, c. 90, § 2, an allowance of $3000 was made out of the estate of Nathaniel Washburn junior, deceased, intestate, to his widow, the appellee.</p> <p>The deceased left no child, and his father, the appellant, was his heir at law. His personal estate was, inventoried at about $ 6000, his real estate was worth about $ 4000, and his debts amounted to about $4000. He was married in 1823, and he received with his wife, furniture worth $500. The rest of his property was acquired by himself, no part of it having been derived from his father. The widow was the daughter of a farmer. She had formerly kept a school. For five or six years she had been in feeble health, and for the last six months had been incapable of making any exertions for a livelihood ; and she had no means of support, except from her husband’s estate. She was about thirty-five years of age.</p>

<p>Where a demandant derived his title from the deed of a guardian of two minors, who in the letter of guardianship were called et Phebe Vose Sowle and Mary Jeffers Sowle, children of N. S.” and in the guardian’s petition for a license to sell, the license and deed, they were called t( Phebe Sowle and Polly Sowle, daughters of N. S. and granddaughters of N. S.,” it was held, that the identity of the wards was apparent on the face of these documents; but that if there was any question of their identity, it was a question of fact for the jury, in a deed by a guardian under a license of court, it is unnecessary to state the reason for granting the license and making the sale.</p> <p>A deed of<c all the ward’s share and interest” in certain land, will pass both a present estate and a reversionary interest belonging to the ward in the land described.</p>

Assumpsit for expenses incurred by the plaintiffs in relieving and supporting Luther Eaton, a pauper. At the trial, before Morton J., the settlement of the pauper was admitted to have been originally in Middleborough ; but the defendants undertook to prove that he had acquired a settlement in Attleborough by virtue of a residence there during the term of ten years, and the payment of all taxes assessed upon him for five years of that period.

<p>Assumpsit on a promissory note made by the defendant to the plaintiff. Plea, the general issue.</p> <p>At the trial, before Morton J., the defendant offered to prove that on November 22d, 1808, the day of the date of the note, he gave the plaintiff a mortgage deed of certain real estate as collateral security for the note, that the plaintiff had entered into possession of this estate, that it was of greater value than the amount of the note, and that the rents and profits were of greater value than the amount of the note.</p> <p>The plaintiff showed, that on April 6th, 1808, and also on July 13th, 1811, the defendant mortgaged the same premises to the Plymouth bank, that these last mentioned mortgages were put in suit, a conditional judgment rendered thereon, and possession of the estate given to the attorney of the bank, by the sheriff, by virtue of a writ of possession, on November 13th, 1817, and that on December 6th, 1821, the bank released the mortgaged estate to the plaintiff.</p> <p>The defendant then offered to prove, that from the time of the delivery of possession to the bank, he had continued to have possession of two parcels of the real estate mentioned in the mortgages, and that from the date of the deed of the bank to the plaintiff, the plaintiff had continued to receive the rents and profits of the residue of the estate, and that these rents and profits were of greater value than the amount of the note declared on. He further offered to prove, that the land of which the plaintiff had taken possession, was of greater value than the aggregate of the sums due on the mortgages to the bank and on the note on which this action was brought.</p> <p>But this evidence was rejected and a verdict was returned for the plaintiff. If the evidence was admissible, a new trial was to be granted ; otherwise judgment was to be rendered on the verdict.</p>

<p>Where a statute does not vest a right in a person, but only prohibits the doing of some act under a penalty, the party violating the statute is liable only to the penalty ; but where a right of property is vested in consequence of the statute, it may be vindicated by the common law, unless the statute coniines the remedy to the penalty.</p> <p>The St, 1815, c. Ill, vests in the town of M. the right of disposing of the privilege of taking alewives in a river within the limits of the town, and enacts, that persons obstructing the passage of the fish shall be liable to a certain penalty. It was held, that the remedy prescribed by the statute was cumulative, and that an action on the case at common law, might be maintained by the vendee to whom the privilege had been sold by the town, against any person obstructing the passage of the fish.</p> <p>Where an injury to a fisfiery in one county is occasioned by an obstruction to die passage of the. fish erected in another county, the owner of the fishery may bring his action in either county.</p> <p>On an action on the case for such injury, it seems that it is unnecessary for die plaintiff to allege in what county the obstruction was erected.</p>

<p>Assumpsit for services rendered, according to the account annexed to the plaintiff’s writ.</p> <p>On the trial, which was in the Common Pleas, before Williams J., Richmond admitted that the services had been performed. The defence set up by him was, that on the first day of August, 1829, he purchased and caused to be served on Briggs a writ of attachment counting in assumpsit on a halanee due him on an account, as stated in the account annexed to the writ, in which account he had credited Briggs for the identical services sued for in this action, as much as was reasonably due to him therefor; that Richmond’s writ was made returnable before Thomas Weston, a justice of the peace, on the eighth day of August, 1829, at 9 o’clock in the forenoon ; and that he entered his action at the return time thereof, and recovered judgment against Briggs, upon default, for the balance of the account, pursuant to the declaration in his writ.</p> <p>The present action was commenced on the same first day of August, and the writ was made returnable before Seth Miller, a justice of the peace, on the same eighth day of August, at 8 o’clock in the forenoon. The action was entered before the justice at the return time thereof, and after trial and judgment, it was carried to the Common Pleas by appeal.</p> <p>On the trial in the Common Pleas, it was proved that the writ sued by Richmond was served upon Briggs before the purchase of the writ in this action, and that Briggs, at the time of the service of- Richmond’s writ upon him, and before the purchase of his own writ, had knowledge of the contents of Richmond’s writ, and knew that in the account annexed thereto, Richmond had credited him for the services sued for in this action.</p> <p>It was also proved, that before Richmond bad entered his action, Briggs offered to pay him his whole account and the cost of suit, and that Richmond declined accepting the same, but that he offered to accept the balance for which he had sued.</p> <p>Upon this evidence it was contended, that the plaintiff was entitled to recover ; but the judge instructed the jury, that unless they found the services sued for in this action to be of greater value than the sum credited therefor to the plaintiff in the action sued by Richmond, the plaintiff was not entitled to recover.</p> <p>The jury found a verdict for the defendant; and thereupon the plaintiff filed exceptions to the foregoing instruction.</p>

<p>Upon a bill to redeem, the allowance of sums expended by the mortgagee in necessary repairs and betterments of the mortgaged premises, cannot be objected to on the ground that those sums exceed the amount of the rents and profits; for the St. 1798, c. 77, § 1, provides expressly for their allowance in such a case.</p> <p>Disbursements for improvements merely ornamental, and which are not necessary to the upholding of the estate, and do not contribute any thing to its permanent value, ought not to be allowed.</p> <p>Where a master in chancery, in stating an account between the parties to a bill to redeem, makes an allowance to the mortgagee for repairs, such repairs will be presumed to have been necessary, unless the contrary appears either from the master’s report itself or from other evidence.</p> <p>In the case of repairs made by the mortgagee, the mortgager should be charged with no more of the cost than is beneficial to the estate.</p> <p>Upon a bill to redeem, only simple interest is to be computed upon the mortgage debt; but if the rents and profits received by the mortgagee exceed the amount expended in repairs, &c. the excess will be applied from lime to time to the payment of interest accrued, before any part is applied to the reduction of the principal.</p>

<p>This was an action of assumpsit, brought by David R. Green and Robert Gibbs, on a policy of insurance dated July 28th, 1827, on the sloop Falcon. Plea, the general issue.</p> <p>At the trial, before Morton J., it appeared that the Falcon sailed from Savannah for New York on the 12th of July, 1827, and that on the 14th she struck on Cape Lookout shoals and was totally lost.</p> <p>The ground of the defence was, the fraudulent misrepresentations of the plaintiffs as to the time of the vessel’s sailing.</p> <p>The defendants introduced the following evidence.</p> <p>Stephen Merrihew, who was the president of the insurance office at the time when the policy was effected, testified, that about 8 o’clock in the morning of the 28th of July, Green, one of the plaintiffs, showed him the paragraph in the Palladium of July 27th, relating to the Falcon. In the column of marine intelligence was the following item : “ At Savannah light-house, 15th instant, Milton, Webb, for Liverpool, &c. The Falcon had-sailed for New York.” In the same column, lower down, was the following : “ Arrived at New York, on the 23d, pilot-boat Tatnall, Hopkins, seven days from Savannah.” Between 11 and 12 o’clock, on the 28th, Green came into the office and desired to obtain insurance on the Falcon. The witness pointed to the first-mentioned paragraph in the Palladium, and said he had seen that information, and the vessel had probably sailed about that time, (the 15th.) Green replied that a Rochester captain who sailed on the 9th, had arrived and reported that she was to sail in two days. The witness asked why she did not sail sooner. Green re| lied that the master had to settle up his affairs, and gave some other reasons. The witness asked Green if that was all the information he had, and he replied that it was. The witness immediately directed the policy to be made, and Green executed the premium note. This was on Saturday. On Monday Green took the policy, and on the same day the parties heard of the loss of the vessel. On cross-examination, the witness stated that he knew of the arrival of the Tatnall at New York on the 23d of July in seven days from Savannah, but he could not recollect whether he read it in a newspaper or heard it from Green ; and that he had no recollection of having seen Lang & Turner’s Gazette of the 24th of July, or any other New York paper of that date, when the policy was effected.</p> <p>Lang & Turner’s Gazette of July 24th mentioned, under the head of marine intelligence, that the Tatnall arrived at New York on the 23d, in seven days from Savannah, and that she reported that the Falcon had sailed three days before the Tatnall, for New York.</p> <p>William Phillips testified, that on the morning of July 28th be saw on board of the packet Rodman, which had arrived at New Bedford from New York, a letter directed to Green, and another which had been first directed to Green and afterwards to Robert Gibbs, the first superscription being erased, and that he delivered the former to Green about 7 or 8 o’clock on the same morning.</p> <p>These two letters were written by Gibbs himself, and such parts of them as related to this subject, were introduced. The first letter was dated the 24th, and instructed Green to procure insurance, stating that the Tatnall sailed on the 15th, and that the Falcon must have sailed on the 11th or 12th. In the other letter, dated the 25th, Gibbs expressed his apprehensions for the safety of the vessel, saying that she ought to have arrived.</p> <p>Joseph Allen testified, that he was in New York in July 1827, and that he bad a conversation with Gibbs, who spoke of the Falcon and said he had written, or was about to write, to his partner to get insurance upon her. Gibbs brought letters on board the Rodman to send by her. He said he had written a letter to his wife and misdirected it to bis partner, and that he erased that direction, and directed the letter to Robert Gibbs.</p> <p>The Rodman sailed on the 26th of July, in the morning. The news of the loss of the Falcon arrived at New York at 2 o’clock in the afternoon of the same day.</p> <p>Ivory H. Bartlett testified that he was a proprietor of the stage coaches running between New Bedford and Newport; that in 1827, there was no steamboat mail ; that the arrival of the boat at New York was irregular ; and that when the boat arrived before the mail was made up, the letters brought by the boat came to New Bedford in the mail.</p> <p>It was testified that in 1827 the steamboats usually left New York at 3 o’clock in the afternoon.</p> <p>The plaintiffs then introduced the following evidence.</p> <p>John B. Taylor testified, that on the morning of the 28th of July he took from the Rodman the letter directed to Robert Gibbs, and kept it till afternoon, when he sent it to Mrs. Gibbs ; that early in the evening he saw it at her house, and that she requested him to deliver to Green the part of it which was produced at the trial and which she had previously separated from the rest, but that he went away and forgot it.</p> <p>Lang & Turner’s New York Gazette of July 24th was then offered .by the plaintiffs and objected to by the defendants, but it was admitted.</p> <p>Benjamin T. Congdon testified, that by the regular mail, Lang & Turner’s Gazette of July 24th, should have arrived at New Bedford on the evening of the 26th, and that he knew it must have been received there at least as early as the evening of Friday the 27th ; that after the loss of the Falcon and before the commencement of this suit, he examined the defendants’ files and there saw the paper of the 24th.</p> <p>It was in evidence, that the Tatnall was a fast sailer, and that passages from Savannah to New York varied as to the time in which they were performed, from three to ten days.</p> <p>Upon the foregoing and other evidence, the defendants contended that Green was bound to communicate the letters of July 24th and 25th ; that Gibbs was bound to communicate information of the loss, by the steamboat which left New York at 3 o’clock on the 26th of July ; and that either of these omissions amounted to a fraudulent suppression of material facts, which vitiated the policy of insurance.</p> <p>The judge instructed the jury, that if either of the newspapers produced on the trial, contained all the information which the letter of July 24th did, and if such paper was actually seen by the president of the insurance company and that part of it containing such information was read by him, the omission to communicate this letter was not material ; that the omission to communicate the letter of July 25th was not material, unless the jury believed that it was misdirected for the purpose of delaying its arrival, or that there was neglect by which it was so delayed as to prevent its being communicated before the insurance was effected ; that although Gibbs was bound to forward information by the earliest and most expeditious usual route of mercantile communication, yet that the omission to send by the steam-boat was not so material an omission as would vitiate the policy, unless it was a mode of communication frequently resorted to by merchants in such cases.</p> <p>The jury returned a verdict for the plaintiffs.</p> <p>To the above instructions the defendants excepted ; and they moved for a new trial because the verdict was against evidence.</p>

<p>In order to maintain an assignment by a failing debtor for the benefit of creditors, against an attachment of a creditor not a party to such assignment, it must appear that the assignment was made upon a valuable and adequate consideration, and in good faith, to satisfy or secure existing debts or to indemnify against subsisting liabilities, and tjiat it has been assented to by creditors or sureties whose demands are sufficient to absorb the property conveyed ; and the burden of proof is upon the assignees to show an adequate consideration for the assignment.</p> <p>Where the assignment was by an indenture between the debtor, of the one part, and the trustees of the other part, and was not intended to be signed by the creditors, and the trustees were required to make a distribution of the property among all the creditors, without preference, in proportion to their respective demands, and there was no stipulation that the creditors should release their demands or take upon themselves any onerous condition, it was held nevertheless that the creditors* assent to the assignment could not be presumed.</p>

<p>This was an action on the case, in which the plaintiff demanded damages against the defendants for refusing to issue certificates of her ownership of certain shares in the capital stock of the Manufacturers and Mechanics’ Bank of Nantucket.</p> <p>At the trial, before Morton J., it appeared that Francis G. Macy and others were created a corporation on June 18th, 1825, by the name of The President, Directors and Company of the Manufacturers and Mechanics’ Bank of Nantucket, the capital stock of which company was to consist of the sum ol $ 100,000, divided into shares of $100 each ; and that Macy was an original subscriber for ninety shares. An instalment of eighty dollars on a share being required to be paid, Macy, on the 6th of January, 1826, paid $2750 towards his ninety shares and drew his order on Messrs. Macy, Bunker & Macy for $4637-62, being the residue then payable on the ninety shares, together with interest on the same from the time the instalment became due. This order was drawn in favor of Barker Burnell, the cashier of the bank, and at the same time Macy executed an instrument as follows : — “ Know all men by these presents, that whereas I have drawn a draft on Messrs. Macy, Bunker & Macy, merchants, New York, at one hundred and twenty days date, in favor of Barker Burnell, cashier, for four thousand six hundred and thirty-seven dollars and sixty-two cents, and which was delivered to said Burnell in payment for stock, I hereby transfer to the President, Directors and Company of the Manufacturers and Mechanics’ Bank of Nantucket, all my right and title to and interest in ninety shares of the capital stock of said bank, excepting and reserving twenty-seven hundred and fifty dollars in said stock, as collateral security for the payment of said draft.” The draft was made when Macy had no funds in the hands of Macy, Bunker & Macy, and without authority, and it was never accepted nor paid. The remaining twenty per cent on the ninety shares, was never paid by Macy. The bank never passed to his credit any stock in the bank, and no certificate or scrip was ever issued to him for shares. The above sum of $2750 was placed to. his credit in part-payment of sums due from him to the bank, apart from the transaction respecting the shares. At the time when the. attachment hereafter mentioned was made by the plaintiff, Macy was indebted to the bank for money received of them, in a sum exceeding $2750.</p> <p>On December 19th, 1825, the plaintiff sued out her writ of attachment against Macy, in which she demanded of him the sum of $2500, and on January 10th, 1826, she caused thirty-five shares of the stock in the bank, to be attached as his property, to respond the judgment which she might recover in that action. On the first Monday in October 1826, the plaintiff, in pursuance of the writ of attachment, recovered judgment and execution against Macy for the sum of $ 2500 debt, and $15'56 costs of suit, which execution was delivered to the sheriff who made the original attachment. The cashier of the bank gave the sheriff a certificate as follows. “ Nantucket, Oct. 10, 1826. The sheriff of this county having requested me to state what interest Francis G. Macy may have in the capital stock of the Manufacturers and Mechanics’ bank, I now certify that said Macy has transferred all his stock in said bank to the president, directors and company thereof as collateral security, excepting twenty-seven hundred and fifty dollars, and that said Macy is indebted to said bank in a sum exceeding the transferred and untransferred property.” On the 25th of November, 1826, the sheriff sold on the execution, at public vendue, twenty-seven of the shares attached by him, to the plaintiff, who was the highest bidder, at $81 for each share ; and on the 27th of November, by virtue of an alias execution issued on the same judgment, he sold seven more of the shares attached by him, to the plaintiff, who was the highest bidder, at $ 80 for each share. The officer, in making the attachment and the sales on execution, pursued the directions of St. 1804, c. 83. On the 3d of October, 1827, tl e plaintiff tendered to the cashier of the bank, the sum of $ 680, as an instalment due on the shares sold to her, and exhibited to him attested copies of the executions and officer’s returns thereon, and demanded of the bank that they should issue certificates to her of her ownership of these shares ; which was then and there refused.</p> <p>The plaintiff demanded damages to the value of the shares as they were struck off" to her, and interest on that sum. The defendants claimed to hold the shares by virtue of Macy’s conveyance above recited.</p> <p>The defendants were defaulted. If the opinion of the Court should be in favor of the plaintiff, the default was to stand, and the Court were to assess such damages as they might deem proper ; otherwise the plaintiff was to be nonsuit.</p> <p>The papers in the case, and the act incorporating the bank, were to be referred to by either party.</p>

<p>Printing types and forms are not tools necessary for the trade or occupation of a printer, within the meaning of St. 1805, c. 100, and therefore are not exempted from attachment and execution.</p>

<p>This case was heard before Shaw C. J., and the following opinion, in which Wilde J. concurred, was delivered by him at May term 1831, at Plymouth.</p>

<p>A party aggrieved by the opinion or judgment of the Court of Common Pleas rendered upon any issue in law or case stated by the parties, where it is not agreed that the decision of that court shall be final, may bring the action before the Supreme Court by appeal, whether the ad damnum be laid at more or less than one hundred dollars, and whether the parties do, or do not, reserve a right to waive in the appellate court the pleadings joined or statement of the "case made in the court below.</p> <p>Upon an appeal from a judgment of the Court of Common Pleas upon a case stated, the form of bringing up the action may be by entering the agreed statement upon the record, somewhat in the manner of a special verdict, and the judgment of the court thereon.</p> <p>The answer of one summoned as trustee, denying that he has in his hands effects of the principal defendant, and the prayer of the plaintiff* that he may be adjudged trustee upon the answer, are in substance the joinder of an issue, within the meaning of St, 1820, c, 79, § 4, allowing an appeal from a judgment of the Court of Common Pleas in an action “ wherein any issue has been joined.”</p> <p>Such issue between the plaintiff and the person summoned as trustee, is an issue in law9 and therefore either party may appeal from the judgment of the Court of Common Pleas thereon, although the ad damnum be laid at a sum less than one hundred dollars.</p>

<p>Habeas corpus to T. P. Whitney, the deputy-jailer, to bring before the Court the body of Walter A. Baxter. It appeared that Baxter was committed and detained in prison on an execution against him in favor of George M. Gibbens, dated September 10th, 1830, which was issued on a judgment rendered on September 4th ; that" Gibbens died on October 3d ; that the commitment was made on October 11th ; and that the prisoner’s board was paid by Moses Draper, the attorney of G'mbens in the suit.</p> <p>An order of notice having been served upon Draper and no appearance being entered, the case was argued by Metcalf in behalf of the prisoner.</p> <p>On the return of the writ, Metcalf proposed to rest the. prisoner’s claim to a discharge from imprisonment, solely on the provisions of St. 1787, c. 29, and St. 1821, c. 22, which, he contended, were wholly inconsistent with the right of commitment in execution after the plaintiff’s death. But the Court intimating a desire to be referred to the common law authorities on the point, he afterwards cited the following cases.</p>

<p>This was a writ of entry, in which the demandants claimed about 100 acre's of land in Milton. They counted upon their own seisin within thirty years and a disseisin by the tenants. The tenants pleaded that they did not disseise the demandants, and claimed to hold the land in their own right.</p> <p>The parties stated a case.</p> <p>Prior to 1659, the township of Dorchester included all the territory which was comprehended within the towns of Dorchester and Milton, before the annexation of a part of Brain-tree to Milton ; and the part of Dorchester lying on the southerly side of Neponset river, which was in 1662 incorporated as the town of Milton, was called Unkataquissett or Unquity.</p> <p>On the records of Dorchester there is an entry, that at a meeting of the proprietors of certain common lands, in Dorchester, in 1659, a vote was passed, “that they do freely give, sequester and set apart for ever, 400 acres of land, that is, 200 acres thereof, to be improved from time to time for the use and maintenance of the ministry, to the inhabitants of Dorchester that live on the northwest side of the river Neponset, and the other 200 acres to the inhabitants of Dorchester that live on the southeast side of the said river Neponset, to be improved for the use of the ministry there from time to time ; and the donors do declare, that the land aforesaid shall not be given or any way made over, alienated or sold, directly or indirectly, to any minister or any other person or persons whatsoever, as to them and their heirs, executors or assigns, but shall remain and continue to be improved for the use above-said.”</p> <p>Afterwards the town of Dorchester gave their consent, that the part of the town lying on the southeast side of Neponset river should be set off into a separate town, upon certain conditions, one of which was, “that all that land, or any of their estates inhabiting upon the land lately reserved for the maintenance of .the ministry in Dorchester, both it or they, shall not be charged to any common charges by our neighbours at Unquity.” The part of Dorchester above specified, was incorporated accordingly, in 1662, by the name of Milton.</p> <p>In 1663, a partition of the 400 acres “formerly laid out for the maintenance of the ministry in both towns,” was made by mutual consent, and the demanded premises are a part of the land set off to the town of Milton as their share, to be held in severalty ; and the town entered upon the lands set off, and held the same in severalty from the time of the partition until the year 1818, during all which period the lands were leased from time to time and the proceeds thereof were paid into the treasury of the town.</p> <p>In regard to the manner in which the town of Milton had managed the lands and applied the income thereof, until possession was taken by the parish, the demandants referred to the town records. By these it appeared, that from 1783 to 1794 the Rev. Nathaniel Robbins was taxed for “ministerial land ;” and in 1802 the Rev. Joseph McKean was taxed for “town’s land.” In 1756 the town chose a committee to let out the “church land” for one year. In 1757 it was voted that a committee let the “ church land ” for seven years, and that they reserve liberty to the town to build a house and barn on the “ church land.” In 1764 a committee was chosen to let out the “ church land ” for three years, and another committee, to see if it was best to fence off any part of the “ church land.” In 1758 it was voted, that the selectmen sell the timber and bark on some few trees at the south corner of the “ church land for the use of the town.” In 1762 it was voted, that S. Clap have old stumps and brush in the “church land.” In 1778 it was voted to sell all the wood on the “ ministerial land.” In 1782 a committee was chosen to lease out the “ ministerial land ” in such parcels, for such time and upon such terms, as they should think most conducive to the interest of the town. In 1783 the selectmen were appointed a committee to settle with any person who had cut or carried off any timber from “ the town’s ministerial land.” In 1785 and 1786 t was voted, that the proceeds of the sale of trees and wood on the ministerial land be applied to the payment of sums due from the town to R. Houghton, B. Wadsworth and Col. Bad-lam. In 1799 a committee reported, that they had leased two acres of the ministerial land to Lemuel Gulliver for one hundred years, for $ 126-34, which money they had received ; and the town voted that the committee pay the money into the town treasury. In 1807 a committee was authorized to sell off such part of the wood standing “ on the ministerial or town’s land,” as they might judge would be for the interest of the town, and likewise to give the overseers of the poor liberty to take such wood from the land for the use of the poor, as would best promote the town’s interest.</p> <p>The tenants likewise referred to several votes of the town. In 1751 it was voted that the committee “ chosen to let out the church land, should be empowered to let to Mr. Nathaniel Robbins twenty-five acres of the church land, besides the church meadow, during his being our minister.” On the settlement of Rev. Mr. Robbins it was agreed between him and the town of Milton, that his salary should be “ the sum of 65Z. 13s. 4d. lawful money, each year yearly, so long as he continues our minister ; the rent of Milton ministerial land to be part of said yearly sum.” In May 1779, it was voted, that “ the Rev. Mr. Robbins’s salary for the present year shall be made equal to the sum for which the ministerial1 land rented in March last.”</p> <p>The town of Milton composed a single territorial and congregational parish until February 1818, and transacted their municipal and parochial concerns under one organization. In 1817 the town voted that application be made to the legislature to incorporate as a parish, all the congregational inhabitants not belonging to any religious society out. of the town, and to provide in the act of incorporation, that all the duties and obligations of a parochial or ministerial nature, then binding on the inhabitants of the town, should devolve and be binding on the parish, and that all the rights and immunities of a parochial or ministerial nature then appertaining to the town, should enure to and vest in the parish. An act of incorporation was passed on February 19th, 1818, (St. 1817, c. 132,) in conformity to the vote, and the second section provides, that the parish shall be deemed to be successor to the town, as far as relates to parochial proceedings, rights, immunities, duties, contracts and undertakings ; “ provided that nothing herein contained, shall be construed to divert the use of the ministerial lands in said town, from the intention of the donors, as expressed in the original appropriation thereof, or as altering or affecting the title of any such real estate.”</p> <p>After the passing of the act of incorporation, the parish entered upon and held the demanded premises, by their officers and agents, leased the same from time to time for their benefit, and have ever since taken the profits of the same.</p> <p>Judgment was to be rendered upon a nonsuit or default, as the Court should direct.</p>

<p>This was an action on the case against the defendants, for not transferring to the plaintiffs thirty shares in the capital stock of the Bank of Norfolk.</p> <p>At the trial, before Morton J., it appeared that one Langdon was an original subscriber to the stock of the Bank of Norfolk, for thirty shares, and was present at the passing of the by-lawa of that bank, and consented to the same. The 9th by-law provides, that the stock .of any member of the corporation shd be transferable only at the bank ; and this is stated in the certificates of stock. The 12th by-law is as follows: — “The stock of every member of this corporation shall be considered and hereby is pledged to the corporation for any or all moneys which such member may at any time owe the bank, and the board of directors may, if they see fit, refuse to make any transfer or pay any dividend upon the stock of any member who may be so indebted, until such debt be fully discharged.”</p> <p>On March 14th, 1827, Langdon offered his note of that date, at four months, for $4000, indorsed by Walley & Foster, to the Bank of Norfolk, for discount, and a discussion taking place among the directors on the subject of the note, the agent of Langdon said there would be no risk in discounting it for the sum of $ 3000, as Langdon had thirty shares in the capital stock of the bank, amounting to that sum, which would be held by the by-laws as security for the note ; and this fact being ascertained by a reference to the books, the note was discounted for the sum of $ 3000. Before the expiration of the four months, Langdon became insolvent, and the directors thereupon, to wit, on the 18th of April, 1827, ordered the cashier not to transfer the shares nor pay any dividend thereon, until the note should be paid. The note remains unpaid, the indorsers as well as the maker having become insolvent, and the defendants have no security for the same, except these shares.</p> <p>On the same 18th of April, Langdon, bond fide and for an adequate consideration, assigned all his right, title and interest in the thirty shares to David Lowland Thomas Cordis, and as a part of the same transaction, executed a power of attorney to Low, upon the back of the certificate, for transferring the same shares upon the books of the bank ; and on the 19th of April, Low presented the assignment and power at the bank, and demanded of the cashier to transfer the shares into the name of Low, upon the books of the bank, but the cashier refused, and informed Low that the bank held the shares as pledged for the payment of the note above mentioned, and exhibited to him the 12th article of the by-laws.</p> <p>On the 21st of April, the plaintiffs caused a w'rit of attachment to be sued out against Langdcn, and deliverec the same to a deputy-sheriff for service. The officer called at the bank with Alexander Bliss, the plaintiffs’ attorney, for the purpose of attaching the thirty shares as the property of Langdon, and was there informed by the cashier, that the shares were held by the bank as pledged for the payment of the note before mentioned ; and also that the title of Langdon, if he had any, had been assigned to Low and Cordis, and that they had demanded that the shares should be transferred into the name of Low, and that the bank had refused in the manner and for the cause above stated. The cashier delivered to the officer a memorandum of the number of the certificate of the shares, supposing the statute made it his duty to do so, and also delivered a copy of the by-law to the plaintiffs’ attorney, after reading the same in their presence and hearing. The officer nev-. ertheless, in pursuance of orders from Bliss, proceeded to attach Langdon’s interest in the shares. The plaintiffs after-wards obtained judgment and execution against Langdon, and the shares were seized and sold upon the execution. At the time and place appointed for the sale, Cordis and the agent of the Bank of Norfolk, in the hearing of the company assembled, severally forbid the sale, but the officer proceeded to sell the interest of Langdon in the shares, and the same was bid off by B. Hedge, as agent for the plaintiffs, as appears by the return upon the execution, a copy of which was left with the cashier of the Bank of Norfolk ; and Hedge thereupon demanded a transfer of the shares to the plaintiffs, which was refused for the causes above mentioned, and a copy of the 12th article of the by-laws was given to Hedge.</p> <p>Upon these facts the jury were instructed; that the by-law was valid and effectual to justify the defendants’ refusal to transfer the shares to the plaintiffs ; and that if there was any defect in the by-law, yet the assignment to Low and Cordis and the proceedings under the same, being prior in point of time, must be preferred, and would exclude the claim of the plaintiffs.</p> <p>A verdict for the defendants was taken by consent. If the direction of the judge was right, or if upon these facts the defendants were entitled to a verdict, then the verdict was to stand ; otherwise a new trial was to be granted.</p>

Writ of dower. A special verdict was returned, in which the jury find that the late husband of the demandant was seised, during the coverture, of such an estate in the land described in the writ, as that he could endow the demandant thereof; that the land of which dower js demanded, consists of about fifty acres, a part of which, to wit, about four acres, contains a quarry of slate stones, lying mostly within from one foot to ten feet below the surface of the ground, but…

<p>Assumpsit for money had and received. The action was commenced on March 23d, 1829, by Ann Monk, the plaintiff’s intestate. The parties stated the following case.</p> <p>Lemuel Drake, by his last will, which was allowed and approved by the court of probate in November 1805, gave to Lemuel D. Southworth $ 100 when he should arrive at eighteen years of age ; but if he should die before he arrived at that age, then the money was to go to the use of the schoo' mentioned in the will. Southworth died before he arrived at the age of eighteen years.</p> <p>L. Drake also devised to the defendants $ 300, for the purpose of building a schoolhouse for the use of a free grammar school, or other school, as the town might direct, provided the . schoolhouse should be built by the town within 100 rods of the place where the meetinghouse then stood.</p> <p>On May 5th, 1806, the. defendants, in legal town meeting, voted to “ accept the donation of L. Drake, and to make provision for performing the conditions on their part, agreeably to his will, as soon as the circumstances of the town would permit.”</p> <p>In the last clause of the will, L. Drake gave “ all the remainder of bis estate, of what name or nature soever, or wherever the same might be found, to his wife Abigail Drake, her heirs and assigns for ever.”</p> <p>In 1806, Abigail Drake died intestate, and the settlement of her estate in the probate court was closed on January 1st, 1811.</p> <p>On March 14th, 1814, the administrator de bonis non of L. Drake paid to the treasurer of the defendants the abovementioned sums of $ 100, bequeathed to Southworth, and $ 300, bequeathed to the defendants, and $ 116, the amount of interest received on the two first mentioned sums and rent received by him of real estate which was devised by L. Drake to the defendants, and which real estate has since been recovered by the heirs at law of Abigail Drake, by a judgment of this Court rendered in 1828.</p> <p>The defendants, on March 14th, 1814, took possession of tne real estate devised to them, and afterwards, and before the recovery thereof from them, cut down or sold wood growing thereón, and received into their treasury the proceeds of the sale of the wood.</p> <p>The plaintiff’s intestate, Ann Monk, was a sister and one of the four heirs at law of Abigail Drake. She was the wife of Elijah Monk at the time of the death of Lemuel Drake, and until 1824,' when Elijah Monk died.</p> <p>Before the commencement of this suit, viz. on June 1st, 1828, the plaintiff's intestate demanded of the selectmen of Stoughton her share of the money above mentioned, in the possession of the defendants.</p> <p>At the commencement of this suit, the defendants had not built any schoolhouse according to the provision in the will, unless the following facts show a compliance therewith. In 1826, certain individuals in Stoughton erected a schoolhouse within 100 rods of the meetinghouse, and conveyed it to the town. A new school- district was formed in that part of the town, and the house so erected has been ever since used as a district schoolhouse.</p> <p>If the plaintiff was entitled to recover, notwithstanding the statute of limitations, judgment was to be rendered for such sum as the Court should order; otherwise he was to become nonsuit.</p>

<p>Assumpsit. The action was commenced in June 1829. Plea in abatement, that the plaintiffs, at a Court of Common Pleas held at Providence in the State of Rhode Island, in May 1829, impleaded the defendant in a plea of the case and for the same causes of action, prout patet, &c., that the parties are the same, and that that plea yet remains undetermined. To this the plaintiffs demurred.</p>

<p>Baker brought an action on the case against Plympton, wherein he alleged, in his first count, that on the 4th of October, 1826, he was possessed of a certain close, to which he then had and still ought to have a way through, over and across a certain close occupied by Plympton, yet Plympton excluded him unjustly from the use of the way, and on the 5th of the same October erected fences across the same and obstructed Baker’s passage. There were two other counts, in one of which Baker claimed a right of way by prescription. The general issue was pleaded.</p> <p>The case was tried in the Court of Common Pleas at December term 1826, when a verdict was found for P'ympton and judgment rendered that he recover his costs, amounting to 024-50. Baker appealed, and upon a trial of the cause in this Court, at February term 1827, upon the same issue, a verdict was returned for Baker for 0 1 damage, and judgment was entered for 0 1 damage, and 0 92’20 costs of suit.</p> <p>The case now before the Court was a writ of error, sued out by Plympton, to reverse this judgment. The error assigned was, that the original suit was a personal action, in which the Common Pleas rendered a judgment in favor of Plympton on a verdict, and upon the appeal, Baker recovered less than $ 100 damage ; whereupon judgment was rendered, (without any certificate from the Supreme Court, that there was reasonable cause for the appeal) in favor of Baker for his damages, and for his costs of suit as well after as before the appeal. The pleadings upon the writ of error terminated in a general demurrer.*</p> <p>The cause was argued in writing.</p> <p>Richardson contended that the original suit was a “real action” within the meaning of Si. 1820, c. 79, § 4 ; that consequently the original plaintiff was entitled to full costs upon the appeal, and so there was no error in the judgment. He cited St. 1783, c. 42, § 2 ; 1784, c. 28, § 9 ; 1786, c. 52, § 3; 1803, c. 154, § 5 ; 1807, c. 123 ; 1811, c. 33, § 4 ; 1817, c. 185, § 2, 3, 4 ; Crocker v. Black, 16 Mass. R. 448.</p>

<p>Where one count in an indictment for murder charged J. F. K. as principal in the first degree and the defendant as accessory, and another count charged 11. C. as principal in the first degree, and J. F. K. as principal in the second degree, and the defendant as accessory to both, and J. F. K. had been convicted but 11. C. had not, it was held that the defendant must plead to both counts so far as they charged him as accessory to the principal who had been convicted.</p> <p>In a capital trial, one called as a talesman cannot be sworn as a juror, unless the court are satisfied that his name is contained in the jury-box.</p> <p>After the jury are empannelled in a criminal case, it is too late to inquire into the impartiality of a juror.</p> <p>But after the jurors are all sworn merely, it is not too late. (See note9p. 480.)</p> <p>Where a juror was sworn in a capital trial, but was subsequently set aside at the instance of the government, and after lie was swovn and before be was set aside, others returned as jurors were challenged peremptorily, the prisoner was permitted to waive any of his challenges. (See same note.)</p> <p>The St. 1807, c. 18, does not prohibit the appointment of counsellors of this Court to aid the law officers of the Commonwealth, whenever the circumstances of the case may require the Court, in the exercise of a sound discretion, to make such an appointment.</p> <p>Where a principal and accessory were indicted for murder, and a counsellor of thjs Court assisted the attorney-general and solicitor-general at tile trial of the principal, the prisoner’s counsel, who were the same in both cases, not objecting, and afterwards, merely upon the request of the attorney-general, with the concurrence of the solicitor-general, and without any pecuniary consideration, such counsellor promised to assist in the trial of the accessory, and preparation for the trial was made under the expectation of his assistance, the Court permitted him to aid the attorney-general, it being understood i( that the direction and control of the prosecution ” should be with the attorney-general.</p> <p>It seems, that in the trial of one person, upon an indictment, no more than two counsel can be permitted to manage the cause on the part of the Commonwealth.</p> <p>Where principal and accessory are joined in one indictment but are tried separately, the record of the conviction of the principal is primé facie evidence of his guilt, upon the trial of the accessory, and the burden of proof rests on the accessory to show, not merely that it is questionable whether the principal ought to have been convicted, but that he clearly ought not to have been convicted.</p> <p>On the question of the principal’s innocence, the Court refused to confine the accessory to the proof of some new fact not proved ¡n the trial of the principal, or to fix any limitation to the admission of evidence to show that the principal was not guilty.</p> <p>If an accomplice receives a promise from the attorney-general, that he shall not be prosecuted if he will become State’s evidence and make a full disclosure, and upon such promise he makes a confession, but afterwards refuses to testify, he may be put upon his trial, and this same confession will be admissible in evidence against him.</p> <p>Although in criminal cases the jury are judges of the law so far as it is involved in the general question of guilty or not guilty, yet questions of law, whether they arise in the arraignment of the prisoner, or in relation to the admissibility of evidence, must be decided by the Court, and must not be reviewed by the jury.</p> <p>Thus if the Court admit the confession of a prisoner, the jury cannot reject it as incompetent evidence, although they may disregard it as incredible.</p>

Richard Crowninshield, J. Francis Knapp, Joseph J. Knapp and George Crovvninshield, the prisoner at the bar, were indicted for the murder of Joseph White on the 6th of April, 1830, the former as principals, and the two latter as accessories. The prisoner was now upon his trial as accessory to J. Francis Knapp, who had been convicted. John C. R. Palmer testified to the following effect. On the 2d of April, 1830, I was at the chamber of George and Richard Crowninshield.

<p>Repairs made by the minister of a parish upon the parsonage-house during his occupation of the same are not, merely by virtue uf his parochial relation, a legal charge upon his parish ; and where, after the dissolution of his ministerial relation, the parish voted to reimburse him the expense of repairs made by him without their request, it was held that the vote was not binding as a promise, the consideration, if there was any, having been executed before the vote was passed, and the parish having no authority to incur debts not founded on a beneficial equivalent.</p>

<p>This was an action of trespass for breaking the plaintiff’s close, situate in Reading, in the county of. Middlesex.</p> <p>The defendant lived in the county of Middlesex, and the plaintiff, in the county of Essex. The writ was directed to the sheriff of Essex or his deputy, and was made returnable before a justice of the peace for that county ; and the defendant was held to bail upon the writ, in the same county.</p> <p>At the court of the justice of the peace, the defendant plead ed to the jurisdiction, but the plea was overruled. He then, pleaded the general issue, with a reservation of the right still to insist on the objection to the jurisdiction. A judgment was rendered in favor of the plaintiff, and the defendant appealed to the Court of Common Pleas held in and for the county of Essex. In that court (Strong J. presiding,) before the cause was committed to the jury, the defendant renewed the objection to the jurisdiction. A verdict was returned for the plaintiff, and then the defendant moved for and obtained judgment notwithstanding the verdict. To this judgment the plaintiff filed exceptions.</p>

<p>Assumpsit for a legacy.</p> <p>The parties agreed, that on September 18th, 1826, Josiah Smith made his will, appointing the defendant his executor, and bequeathed to Mary Smith, the plaintiff’s intestate, as follows : — “I give to my wife Mery Smith twenty-five shares in the NewburypOrt bank, and one half of all the money which I may leave in my house at my decease, together wdth all my family stores at that time on hand. I also give her the use of my household furniture during her natural life, excepting such part thereof as is otherwise disposed of in this will. I also give her my pew in &c. during her life. The foregoing bequests being subject to the following conditions, viz. that my said wife shall relinquish all her right of dower in my estate, and provided also that she educate and bring up my granddaughter Mary L. Richards until she arrive at the age of eighteen years or is married, as the case may be. And at the decease of my said wife, I give all the furniture above given to her use for life, to my said granddaughter Mary L. Richards and her heirs. And it is my will also, that she have all the fam' ly stores which my said wife may leave at her decease.” — And' it is also my will, that whatever money my said wife may have in her possession at the time of her decease, may be equally divided between my said granddaughters and their-respective heirs.”</p> <p>On September 9th, 1828, the testator died, leaving twenty-five shares in the Newburyport bank, $ 507 in money on hand, and family stores to the value of $ 92, his wife then living in his house, and being in possession of the $ 507 and the family stores.</p> <p>On the evening succeeding the funeral of the testator, Mary Smith was taken ill, and on the 16th of the same month she. died, without ever having expressly, by writing or other proceeding, in the probate court or elsewhere, waived the provision made for her in the will; nor did she ever claim dower. The provision for her under the will was of more value than all the real estate of the testator.</p> <p>Soon after the death of the testator the defendant took possession of his personal property, including the $ 507 and the family stores, and on September 30th he caused the will to be proved in due form of law ; and on the same day the plaintiff took out letters of administration on the estate of Mary Smith The plaintiff soon afterwards made a demand of the property so bequeathed to his intestate, which the defendant refused to deliver without an order of court.</p> <p>At the time when Mary Smith was married to the testator, in 1804, she was possessed of personal property of the value of $ 2500, and of a life estate in certain real prbperty of the value of $ 5000.</p> <p>Mary L. Richards, the granddaughter, was twelve years old at the time of the decease of the testator, and is now living.</p>

<p>Assumpsit for supplies furnished by the plaintiffs to Sally Dury, a pauper, and her two children.</p> <p>By the report of Putnam J., before whom the cause was tried, it appeared that Sally Dury had been twice married, but that she had not gained a settlement thereby, and that she had a derivative settlement from her father, Peter Hunt.</p> <p>Peter Hunt was born on the 4th of April, 1745, old style, at Weymouth, and resided there till about the year 1764. He then went to Boston where he resided about three years. He was married at Boston in February 1766. He and his wife and family were warned out of Boston on the 15th of March, 1768.</p> <p>A nonsuit was entered, subject to the opinion of the Court on the question, whether the legal settlement of Sally Dury was in Boston i</p>

<p>The mere absence of a person from the Commonwealth without being heard from, for any period short of seven years, is not sufficient to raise a legal presumption of his death.</p> <p>Tlius, where a promissory note was taken by an agent in the name of his principal, who had sailed for the West Indies or elsewhere and a market, nineteen months before, and had never since been heard from, the note was held to be binding upon the promisor.</p> <p>But letters of administration having been granted upon the estate of the promisee in three years after he sailed, and the administrator having brought a suit upon the note, and no plea in abatement having been filed, the grant of administration was held to be conclusive evidence, in such action, of the death of the promisee. /</p>

Petition for partition. The parties agreed, that in 1782 Benjamin Reed died seised of the premises described in the petition, leaving his wife Elizabeth, Richard Reed, a son by his former wife, and George Gordon, Nicholas Gordon and Elizabeth Gordon, children of his wife Elizabeth by a former husband.

<p>If a party to the proceedings of county commissioners in laying out a highway, has notice that one of them is not disinterested, but takes no exceptions to such commissioner’s acting, until after the highway is established, he will be deemed to have waived any exception on that account.</p> <p>Where a county commissioner is interested in a road by reason of his owning land in a town- through which the road is laid out, and he lias been taxed by the town for his land, the town must be considered as having notice that he is so Interested. Where notice of a petition for a certiorari to county commissioners was served upon their chairman, and he alone appeared and made answer in behalf of the commissioners, the Court, on dismissing the petition, directed that costs should be taxed for the travel and attendance of only one commissioner.</p>

The petitioner represents, that the county commissioners, having viewed a certain road in Newbury, afterwards, at their July term 1829, located the same over a parcel of land owned by the petitioner, and assessed damages for the land so taken, in the sum of $ 130, and ordered the damages so awarded for her land to be paid to Jacob Kent, who was not the owner of the land at the time of the view nor at any time since ; and that the sum so awarded remains in the hands of the…

<p>This action was replevin, to recover a brick-pressing machine attached by the defendant as a deputy sheriff, on February 11th, 1829, on a writ in favor of J. W. Proctor against J. P. Fowler, as the property of Fowler.</p> <p>Upon a case stated by the parties it appeared, that the abovementioned attachment was made in a proper manner; that the writ was duly entered and judgment recovered by Proctor; and that within thirty days thereafter the defendant took the property upon an execution issued upon the judgment, and proceeded therewith according to law, until the same was taken from his possession by the coroner, in behalf of the plaintiff in this suit.</p> <p>By an indenture between Reed and Fowler, dated May 15th, 1828, Reed covenants and agrees with Fowler, to sell to him on or before the 1st of September, 1828, a brick-pressing machine, for the sum of $ 200, to be paid on the delivery of the machine ; and he further agrees, that Fowler shall have full liberty to use the machine until the 1st of September ; and that he will purchase of Fowler all the bricks that he (Reed) may have occasion for between the date of the instrument and the 1st of September ; — and Fowler covenants and agrees to pay Reed, on or before the 1st of September, the sum of $ 200, for which sum he has given Reed his note, bearing even date with the indenture ; and he further agrees to furnish Reed with all the bricks which he (Reed) may have occasion for between the date of the instrument and the 1st of September, to the amount of $ 200, at the market price; and for the faithful performance of these covenants, Reed and Fowler bind themselves, each to the other, in the penal sum of $100. By mutual consent of Reed and Fowler, the instrument was left in the care of E. Hunt, ofie of the subscribing witnesses, and so remained until taken to be used in this action.</p> <p>In consideration of the making and delivery by Reed to Fowler, of the machine in question, Fowler gave Reed a negotiable promissory note, of even date with the indenture, for the sum of $200, payable “on or before the 1st day of September next, with interest from the date, if not paid at that time.” Fowler paid to Reed, $50 on the 29th of October, and $ 50 on the 3d of November, in part-payment of the note.</p> <p>Fowler possessed and used the machine from the time of its first delivery previously to the first of September, until it was attached by the defendant ; and at the time of the attachment it was in the brick-yard of Fowler, housed with other tools used in his business.</p> <p>The plaintiff demanded the machine of the defendant, before the writ of replevin was served.</p> <p>If the Court should be of opinion that the property of the machine was in the plaintiff, the defendant was to be defaulted ; otherwise the plaintiff was to be nonsuit.</p> <p>The case was argued in writing.</p>

Bill in equity. The plaintiff alleges that he was appointed administrator of the estate of Elizabeth Collins ; that on the 1st of January, 1824, Edmund Ingalls was indebted to her in the sum of $600;'that Edmund Ingalls died, not having paid the debt, and in August 1824 the defendant was appoint ed administratrix of his estate ; that in January 1825 the defendant obtained an order .from the judge of probate to sell real estate of Edmund Ingalls, to the amount of $ 365, for…

<p>Assumpsit upon a promissory note given by Winthrop Sargent to the defendant, dated November 11th, 1828, for $ 3600, payable in fifty-seven days, indorsed by the defendant and Judith Worcester. The cause was tried before Putnam J.</p> <p>A demand on the maker and notice to the indorser, were proved.</p> <p>Before the note became due, the maker failed, and on the 5th of January, 1829, he executed an indenture of three parts, whereby he assigned his property to trustees for the benefit of his creditors. The indenture was executed by the plaintiffs on the same day, and by the defendant before the note in suit became due. According to the assignment, the property transferred was to be applied by the trustees, first, to the payment of the expenses of the trust; secondly, to the payment of sums due, or which should become due, to the United States for duties, or which should be paid by Worcester, the defendant, as the surety of Sargent on bonds given at the custom-house; and thirdly, to the payment in full, of 0 5500 due to the plaintiffs, of “ a certain note made by Sargent for the sum of $ 3600 and indorsed by David and Judith Worcester,” and of certain other preferred debts ; and the residue was to be applied, pro rata, towards the satisfaction of the demands of other creditors who should become parties to the assignment.</p> <p>The indenture contains the following provisions : — And each of said parties for himself, and not one for the other, doth hereby remise, release and for ever acquit and discharge said Sargent of and from their respective claims, debts, dues, demands, actions and causes of actions, and from every liability, whether contingent or absolute, and of every name and nature. And each of them doth covenant for himself, to and with said Sargent, that he will not, and no person claiming under him shall, sue, molest or trouble said Sargent, for or on account of any debt, claim or demapd whatever, or by reason of his having indorsed &c. or otherwise become responsible on the contracts or engagements of said Sargent, &c. Provided always, that nothing herein contained shall be construed to impair or affect any lien or pledge heretofore created or obtained as security for a debt or claim due from said Sargent.”</p> <p>The defendant contended that the plaintiffs, having discharged the maker of the note by their covenants and release contained in the assignment, were precluded from maintaining this action.</p> <p>The plaintiffs "then offered parol evidence to prove that the covenants and release were not intended to extend to or affect this note, or certain other notes, which in the whole amounted to $ 23,212, and which were secured by good indorsers ; but related only to the sum of $ 5500, for which the plaintiffs had no security. The defendant objected to the parol evidence, but it was admitted with a view to ascertain the facts.</p> <p>A verdict was taken for the plaintiffs ; but if the parol evidence should have been rejected, and if the plaintiffs were precluded from maintaining the action by their release of Sargent in the assignment, the verdict was to be set aside and the plaintiffs were to become nonsuit.</p>

<p>Assumpsit for money had and received. The case was tried before Putnam J.</p> <p>The plaintiff was the indorser of a note for $661 made to him by Winthrop Sargent, which became due to the defendants on January 5th, 1829, on which day Sargent stopped payment. The bank sued the plaintiff on the morning of the 6th. Afterwards, on that day, the plaintiff made a transfer of personal property to the bank, of the value of $ 4546, as collateral security for what he then owed or should owe to the bank, and the bank agreed to lend him $ 2600; and it was understood that the plaintiff was to pay the note for $ 661, when he should receive the money so agreed to be lent to him On the 13th of January he received the money upon the new loan, and paid the note for $661, by his check on the bank. On the 5th of January, Sargent executed an indenture of assignment of his property to trustees, for the benefit of his creditors, the material parts of which are stated in the preceding case of Gloucester Bank v. Worcester. The plaintiff executed it likewise, but at what time, did not appear. It was proved that he knew, before he paid the note, that the bank had executed an indenture of assignment between the bank and Sargent, but that he did not know it contained a release of their demands against Sargent. The plaintiff held a note against Sargent for $ 2703, and the sum of $ 3300 against the name of the plaintiff on a schedule annexed to the indenture, was understood to refer to that note and the note for $661.</p> <p>The parol evidence which was given in the case of Gloucester Bank v. Worcester, was admitted in this case, though objected to by the plaintiff.</p> <p>The jury found a verdict for the plaintiff for $715 ; which was to be retained, if, in the opinion of the whole Court, the plaintiff could recover on the ground of money paid by mistake.</p>

<p>E. L.,, having bought a shop, placed it upon his father’s land and occupied it as his dwellinghouse. He died, and afterwards, upon the death of his father, the land, with this and another house upon it, descended to the two daughters of E. L. as tenants in common, both of whom were married. The husband of one of them gave the plaintiff, who was the husband of the other, a sum of money for the choice of the houses, and he chose the house last mentioned. The plaintiff thereupon occupied the house first mentioned, as his own, and built an addition to it. It was held, that the plaintiff having a freehold in the land and the exclusive right of occupation and disposal of this house, a representation of the house as his own property, on procuring it to be insured, though not strictly accurate, was not such a misrepresentation as would render the policy void, there being no intentional deception and no over-estimate of the value of the house.</p> <p>If the assured does not communicate facts within his knowledge which increase the risk, the policy will be void, although he did not suppose the facts to be material.</p> <p>Whether alterations or additions made to a house insured against fire, increase the risk or not, is a question for the jury.</p> <p>Where a policy of insurance against five provided that the insurer “ should not be liable for more than the sum insured in any case whatever,” and he paid for repairing a partial loss, and afterwards a total loss happened, it was held that he was liable for no more than the difference between the sum already paid and the whole sum insured.</p> <p>And where, In the same policy, one sum was insured on one building, and another on another, and both losses were upon the same building, it was held that the insurér was liable for only the difference between the sum paid and the sum insured on that building alone.</p>

<p>Whether the St. 1826. c. 143, § 14, enabling school districts to prescribe the mode of warning their meetings, authorizes them to dispense altogether with a warrant from the selectmen, or only to regulate the mode of warning the inhabitants under such warrant, queere.</p> <p>4t a meeting of a school district duly called by a warrant of the selectmen of the town,<( to choose a district committee and to act on other business that may be thought necessary,” it was voted that future meetings should be warned by the clerk of the district ; and at a future meeting so warned, a sum of money was voted to be raised, which was afterwards assessed by the assessors of the town. It was keldy that the vote at the first meeting was invalid, there being no article in the selectmen’s warrant, on the subject of calling future meetings, and that therefore the subsequent meeting and the grant and assessment of the money, were illegal.</p> <p>The St. 1823, c. 138, § 5, exempting assessors from responsibility for the assessment of a tax on the inhabitants of ** any city, town, district, parish, or religious society,” does not apply to the assessment of a lax on the inhabitants of a school district.</p> <p>A person who is compelled to pay a tax thus illegally assessed, has a right of action against the assessors, and not against the school district.</p>