Volume 28 — Massachusetts Reports

<p>Assumpsit for the use and occupation of a parcel of land ¡n Boston, from August 1, 1824, to May 5, 1825.</p> <p>On the trial, before Wilde J.. it was proved, that on February 25, 1824, the defendant, being the owner of the land, entered into an agreement with the plaintiffs, in which it is stated that the plaintiffs are disposed to purchase, and the defendant is disposed to sell the land for a fair compensation in money, and by which arbitrators therein named are authorized to award what sum of money the plaintiffs shall pay to the defendant for all his estate in the land ; and it is recited, that the more effectually to carry the agreement into effect, the defendant has executed a deed of conveyance of the land to the plaintiffs, to be delivered with the award to the plaintiffs, and that for that purpose he has deposited the deed with the arbitrators ; and the plaintiffs covenant to pay the defendant the sum which shall be awarded, within thirty days after the award shall be made and published ; and it is agreed, that the buildings on the land shall belong to the defendant, and that they shall be removed by him by the 1st of August then next; and that the arbitrators may award what rent shall be paid by him for occupying the land until the buildings shall be removed ; and for the faithful performance of the award the parties bind themselves each to the other in the penal sum of $10,000.</p> <p>Annexed to the submission is a writing of the same date not under seal, but signed by the defendant and Josiah Quincy, (who was then mayor of Boston,) as follows : — “It is agreed by the parties to the annexed instrument, that posses sion shall be given on the payment of the money awarded, and that Amos Binney shall become tenant to the city, after the delivery of the deed by the referees, and that the referees shall award what sum he shall pay for the use of said land, as tenant of the city, during the term he may hold the same after-wards, until the removal of the buildings, which shall not be delayed beyond the first day of August next.”</p> <p>On May 21, 1824, the arbitrators made and published their award, and delivered it to the plaintiffs, together with the defendant’s deed. The arbitrators awarded, that the plaintiffs should pay to the defendant $ 9000 for the land, and that, for me occupation of the land until the buildings should be removed, the defendant should pay the plaintiffs $ 50, computing from the date of the award to the 1st of August following and that he should also pay the plaintiffs $49’42, this sum having been paid by them on account of his share of the expenses of the arbitration. On the samé day the plaintiffs tendered to the defendant the sum of $ 8909-58, being the amount due according to the award, but which the defendant refused to accept. On the 27th of July following, the defendant made a tender to the plaintiffs of $ 10,000, accompanied by a letter, in which he says, that, after many applications, he on the 17th of that month obtained, for the first time, a' duplicate of the award; that the sum awarded to him is an inadequate compensation for his land, and that he has determined to pay the penalty of the bond of submission ; and he demands that his deed may be redelivered to him, according to the understanding when he entered into the bond, in order that he may avail himself of his property according to his just rights.</p> <p>At the time of the submission, the land and a ropewalk thereon were in the occupation of Chapman &• Wainwright, as tenants at will of the defendant, at the rent of $1100 per annum ; and in June 1824 these tenants made a written application to the city government for leave to continue their occupation for six months after the 1st of August, 1824 ; which request was refused, as appears by a vote of the city council, no answer, however, being otherwise returned to the tenants ; and on or about the 1st of August, a verbal application for permission to remain was made by them to the mayor, who gave them to understand that the city would make no difficulty about their remaining, if the defendant, who owned the buildings, would consent, they paying to the city rent for the land equal to the interest on $ 9000. About the same time, upon application by the tenants to the defendant, he consented to their remaining, upon condition of their paying him the same rent which they theretofore had paid, and also agreed to save them harmless from all claims for rent which should be made by the plaintiffs. On the ensuing 1st of January, the tenants accordingly paid the defendant the full rent then due, and took from him a receipt, in which he agreed to hold them harmless as above mentioned. They remained in the occupation of the premises until May 5, 1825, when they left them ; and the defendant soon after removed the buildings. In July following, Chapman & Wainwright .paid to the plaintiffs $ 525-19, for rent from August 1, 1824, to May 5, 1825, the plaintiffs having in the mean time agreed to save them harmless from all claims of the defendant. The defendant afterwards sued them for the rent from January 1, 1825, to May 5, and recovered judgment m this Court for $ 383-49 principal, and the interest then due, which has been reimbursed to them by the city in pursuance of their warranty against the defendant’s claims.</p> <p>Some stones and bricks belonging to the defendant remained on the land until about the 13th of May, when he removed a part of them ; leaving the residue, which he supposed not worth taking away ; and the city have deposited there, from time to time, street-dirt and other materials, the land still re maining uninclosed and otherwise unoccupied.</p> <p>A verdict was taken for the plaintiffs, subject to the opinion of the whole Court.</p>

<p>Bill in equity. The bill alleges, among other things, that about the 11th of December, 1820, the plaintiff and defendant entered into copartnership, by an indenture ; — that in the indenture it was stipulated, that the plaintiff should advance the sum of $20,000, without interest, for the joint benefit of the partners, with which the plaintiff was to be credited in the books of the copartnership that the profits of the business should be divided in the proportion of seventeen twenty-fourths to the plaintiff and seven twenty-fourths to the defendant; thal the plaintiff should have a right to draw from the stock of the copartnership the sum of $ 2500, and the defendant, the sum of $ 300, annually, and no more, to be charged to the parties respectively; and that the business should be carried on by the defendant, and that he should keep a complete set of books in the most regular manner. It is then alleged, that about the 24th of November, 1823, the copartnership was dissolved by an indenture, in which it was stipulated, that certain merchandise then on hand should be divided between the parties in the proportion above mentioned, to be charged to them respectively ; that the defendant should settle and close the business of the copartnership ; and that for this purpose all the effects remaining after the division above mentioned, and all the books and papers, except certain notes and acceptances to be collected by the plaintiff, should be delivered to the defendant, subject to the inspection of the plaintiff; and that the defendant should adjust and settle the business according to the terms of the articles of copartnership, except as to the time of the computation of interest on the capital of $ 20,000 advanced by the plaintiff; that the defendant should render an account to the plaintiff at the end of every term of three months, and should make payments to the plaintiff at the end of every thirty days, until the plaintiff should be reimbursed the -amount of capital furnished by him and of all advances made by him, for the firm, with interest as therein provided. The bill further alleges, that pursuant to the last indenture a large amount of property, notes, books, &c., were put into the hands of the defendant, and that he thereupon collected large sums of money, but that he has not kept full and accurate accounts and rendered the same to the plaintiff upon request; on the contrary, that the accounts rendered to the plaintiff from time to time were inaccurate and incomplete ; that the defendant pretends that the plaintiff is chargeable with interest for all sums by him withdrawn during the copartnership, though less than $ .2500 per annum, whereas no interest ought to be charged on such sums, and no interest had in fact been charged thereon until the plaintiff urged the defendant to make a final settlement ; that the defendant, at various times, rendered accounts of profits to the plaintiff, in which items of interest due to the firm, were embraced, but no charge of interest was therein made against the plaintiff; that the defendant, alleges that he is not liable to account, because the plaintiff, after the dissolution of the copartnership, agreed to surrender all his right in the joint property to the defendant, in consideration of a sum of money to be paid by the defendant by instalments, and that he, the defendant, tendered his notes for the payment of such instalments : but the bill charges that no such binding agreement was made, though a proposition passed between the parties ; that, although the proposition never became a binding agreement, and the plaintiff never released his right to an account, and to the profits of the concern, yet at the time of making such proposition, for the sake of a prompt settlement, he would have complied with the terms thereof, according to his understanding thereof, and according to what he believes was the defendant’s understanding thereof at the time, if the defendant would have fairly so complied ; that the real facts concerning such proposition and agreement were, that the plaintiff, wishing to close the concern, the defendant requested him to estimate the profits and allow the defendant to elect to take the whole copartnership effects and pay the plaintiff his proportion of the profits thus estimated, or to surrender the copartnership effects to the plaintiff and receive his, the defendant’s, proportion of the profits thus estimated ; that thereupon the defendant, having the exclusive control of the books and exclusive knowledge of the state of the debts and effects, rendered the plaintiff an account, purporting to be a statement of the affairs of the concern and of the gains and profits, in which account no mention appeared of interest upon the sums drawn out by the plaintiff as above mentioned ; that the plaintiff, not knowing that this account was not true and just, and not suspecting that any claim would be set up to charge him with interest on such sums, made an estimate of the profits at $ 25,500, and that the defendant, under pretence of complying with the plaintiff’s proposition, elected to take the. whole effects and pay the plaintiff his proportion of the profits thus estimated, and thereupon, for the first time, made out an account against the plaintiff, charging him with interest on the sums so drawn out, to the amount of about $ 2000, which the defendant claimed as a debt due to the partnership and to. be received by him. under the agreement, and, after making this debit, struck a balance, and pretended to tender the plaintiff notes for the balance, namely, $ 1485-88. The plaintiff then alleges that no interest was chargeable on sums so drawn out, and that, if there had been, it would have been a part of th ) profits, in which he would have been entitled to share ; that by rendering accounts of the profits in which no such charge was included, the defendant waived any claim thereto ; that if such interest was properly chargeable, the plaintiff was misled and deceived by the defendant, in his not noting the same as an item of profits in the account which he rendered the plaintiff for the purpose of enabling him to make an estimate of the profits, and therefore that no proceeding founded on such estimate is binding upon the plaintiff, even if it would otherwise have so been. The bill concludes with a prayer, that the defendant may be required to render an account of all moneys paid and received by him, on account of the joint concern, since the dissolution, of all debts due and owing by and to the firm, of all property, effects, and assets, &c., and of all other matters in any wise relating to the concern, and to surrender the books and papers to some suitable person, so that the plaintiff may have access to the same, and to abide such order and decree as to the Court shall seem just and equitable.</p> <p>The defendant’s answer states, among other things, that the parties entered into the copartnership, and that the profits were to be divided in the proportions set forth in the bill; that each party was to draw out his private and family expenses ; that the plaintiff said he should want $ 2500 per annum, and the defendant, thinking interest was to be charged, named $ 300 as the sum which he should want; that the defendant opened and kept complete and correct books, to which the plaintiff had access ; that during the whole copartnership, the book of original entries, he believes, was accurately kept; that apprentices were, with the plaintiff’s approbation, permitted to make entries in and to post the books, in consequence of which, within six or eight months after the commencement of the copartnership, the books were inaccurately kept and would not balance, and never afterward balanced, of which the plaintiff was well informed at the time; that the errors amounted to from $ 1000 to $ 3000, but the items were unknown to the defendant; that the defendant believes the plaintiff was at all times as well informed of the affairs of the co-partnership, and of the books and entries therein, as the defendant was ; that the plaintiff did not require the defendant to make the books balance by correcting mistakes, but waived such correction thereof; that the defendant has accordingly rendered accounts as accurately as the books would allow, without such correction ; that about a month before the purchase hereafter mentioned, the plaintiff examined the books minutely, with the view of buying or selling ; that the defendant never concealed from him, with a view to influence him in making an estimate and proposition, any thing touching interest to be charged on moneys drawn out by the parties respectively, but told him that interest was due to and from the partnership on all the accounts in the books ; that the defendant be lieves, that, according to the custom of merchants, interest is chargeable to the plaintiff on all sums drawn out by him annually, though less than $ 2500; that if no interest had been charged on sums thus withdrawn, it was because the accounts had not been made up ; that those accounts which he rendered to the plaintiff, containing items of interest, were accounts with manufacturers, which were usually made up quarterly; that there were a large number of accounts on which no interest had been charged, it being usual to make up the interest at the time of settlement, which the plaintiff knew ; that during the plaintiff’s examination of the books, he made a memorandum of things that he intended to dispute, submit to arbitrators or adjust, and the defendant made additions to the same, which memorandum contained, among others, the following items; — Rent charged, $37-50; — Insurance premium, $50 ; — Cash short, $ 113 ; — Note of J. J. Whiting paid to Owen and not accounted for, $144; — Interest on Mr. Lord’s account of overdrawn according to the. articles ; — that this last item was set down by the plaintiff after he received from the defendant a communication, dated January 4, 1826, as follows: — I will agree to your proposition, as made to Mr. Parks this day, upon condition that you may take one week from this day to decide on what amount to offer, and that I shall have one week from the time you hand nie your terms to give you my answer ; ” that on the back of this communication Parks wrote and signed, by mutual consent, a memorandum as being part of the agreement between the parties, as follows : — “I understand that Mr. Miller is to predicate the amount of their profits at such sum as he shall see fit, and offer to give and take in the proportion of seven twenty-fourth parts to Mr. Lord, and seventeen twenty-fourth parts to Mr. Miller; the one who buys out the other is to give the other a bond to indemnify the other against any demands which may be claimed by individuals who have had dealings with them in business relating to the concern, and both parties to give up all bonds, articles of copartnership, and exchange their notes for receipts, and the party buying out the other is to pay all the debts and receive all the advantages of the concern ; the memorandum of matters in dispute to be submitted to arbitrators, if the parties do not agree. If Mr. Lord purchases, he is to give his notes to Mr. Miller payable in six, nine, and twelve months, m equal sums, with interest; ” that on the 10th of January, 1826, the plaintiff made the following written proposal to the defendant; — “In conformity to your note of the 4th instant, accepting my proposition for an adjustment as to the supposed profits of our late concern, I hereby propose and do agree to estimate the net profits at $25,500 ; agreeable to that rate both parties will be considered as debtor for any amount drawn out beyond their proportion of profits arising from $25,500, the remaining matters to be adjusted agreeable to Mr. E. Parks’s written memorandum as to his understanding of it; ” that on the 17th of January, the proposal was accepted by the defendant in writing, as follows : — 1 conclude to purchase and to take to myself all the effects of the old concern, agreeable to Mr. Parks’s understanding, and shall make out your account in the course of a day or two, which of course is to be deducted from the balance which will be due you ; ” that by virtue of this correspondence the defendant became the purchaser of all the plaintiff’s interest in tile joint concern, upon the terms therein mentioned ; that at the time of the purchase, the plaintiff was as well informed of the state of the concern as the defendant; that it was understood that the purchaser was to have the benefit and stand the loss, if any ensued from errors in the books ; that the defendant having thus purchased out the plaintiff’s interest, it became unnecessary to submit any of the matters contained in the memorandum before referred to, except Whiting’s note ; that the plaintiff did not at any time object to comply with the bargain because that note or any other matters had not been submitted to arbitration; that pursuant to the terms of the bargain, a balance of $ 1486-88 would be due to the plaintiff, charging him interest on the sums withdrawn annually under $ 2500 ; that the defendant has been at all times ready to comply with the agreement in the manner hereafter mentioned, and is now ready so to do ; that on the 4th of April, 1826, the defendant tendered his notes to the plaintiff for the balance of $ 1486-88^ and also his bond to pay all the debts of the concern, and also an indenture whereby the plaintiff was to convey all his interest in the concern to the defendant, but the plaintiff refused to receive the notes and bond, and to execute the indenture, say-” ing the amount was not right; that the plaintiff has never given any other reason for refusing to comply with the agreement, except that the defendant had charged interest on sums withdrawn annually under $2500 ; that the plaintiff never stated to the defendant, before filing the bill, that sufficient accounts had not been rendered him, or that he was misled, in making the agreement, by any items in the books and accounts, nor that the bargain was for any reason void ; that the defendant has gone on to settle, collect, compound and enter into engagements, in settling up, for his own account and benefit; and that he is now ready to fulfil the agreement according to its true intent and meaning.</p> <p>The parties agreed to submit to the Court, as a preliminary question, the effect of the supposed agreement set forth in the defendant’s answer, in regard to the jurisdiction of the Court as a court of equity.</p> <p>The case was argued at the bar at March term 1828, and afterwards in writing, by L. Shaw, W. Phillips and Bartlett, for the plaintiff, and Rand, for the defendant.</p> <p>On the part of the plaintiff it was contended, that the agreement ought not to defeat the bill or oust the jurisdiction, for the following reasons : —</p> <p>1. The agreement was void for uncertainty appearing on the face of it.</p> <p>The proposition was, that the plaintiff should estimate the profits at a sum for which he was willing to buy out or sell out. But profits were not the only matter to be settled between the parties. A number of charges were in dispute, which were to be the subject of agreement or reference after the profits were fixed. This is clear from Parks’s memorandum. The estimate of profits, therefore, ascertained a part only of the amount in question between the parties. The dis puted charges would form an addition to or diminution of that amount, according as they might eventually be determined by agreement or reference. This part of the consideration of the plaintiff’s selling out, being by the papers made no further certain than leaving it to subsequent agreement or arbitration makes it, the plaintiff’s first position is, that by reason of this uncertainty the agreement is not one of which a court of equity would decree the specific execution, and consequently it cannot be set up by the defendant in bar of the plaintiff’s bill. Keating v. Sparrow, 1 Ball & Beatty, 367; Hannet v. Yeilding, 2 Sch. & Lefr. 549 ; Street v. Rigby, 6 Ves. 818. .</p> <p>2. Another uncertainty arises on the construction of the word “ profits” ; for it is plain from the bill and answer, that the plaintiff put one construction upon it in his proposition to the defendant, and that the defendant professes to have given it a different construction in his acceptance of the proposition ; that the plaintiff did not expect to be charged with interest upon sums drawn out for private expenses, though less than $ 2500 annually, whereas the defendant insists that such interest should be charged ; and this difference is an essential ingredient in the negotiation, as it makes the result vary nearly $ 2000. This misunderstanding and diversity of construction in the very concocting of the agreement, renders the agreement void, and at the same time brings the subject within equity jurisdiction. Lindsay v. Lynch, 2 Sch. & Lefr. 7 ; . Woollam v. Hearn, 7 Ves. 211.; Higginson v. Clowes, 15 Ves. 520; Clowes v. Higginson, 1 Ves. & Beame, 532. The ground upon which the defendant says he arrived at his •construction of “profits,” or the mode of computing profits, is mercantile usage. But it is immaterial how > e arrived at it, if the plaintiff, in making his proposition, thought profits to be one thing, and the defendant, in accepting it, thought them to be another thing, making so great a difference in the result.</p> <p>3. The defendant never accepted the proposition made by the plaintiff, and never has complied with nor been ready to comply with the terms of the agreement proposed by the plaintiff, as the Court will construe those terms ; and he has therefore no right to set up that agreement.</p> <p>The articles of copartnership provide, that the plaintiff shall advance the whole capital of $ 20,000, which shall be carried to his credit on the books ; that annually, in December, the books shall be settled ; that the plaintiff shall have the right to draw from the stock of the firm annually $ 2500, and the defendant § 300, and no more, with which sums they shall be each of them charged ; that the profits shall be annually made up and carried to the credit of each copartner ; and that at the end of the term of the copartnership, the parties shall divide the profits then in and belonging to the concern. These provisions show that no interest was to be charged on the sums thus annually to be withdrawn. Such withdrawal was in fact an annual, partial division of the profits, and it is absurd to say that the profits so divided are chargeable with interest. Further, according to the articles, two annual accounts of profits must have been made up by Lord, and the respective shares of profits credited to the parties, and it is alleged in the bill, and admitted in the answer, that no charge of interest upon these sums annually withdrawn had ever been made, until after the defendant had accepted the plaintiff’s proposition. Again, among the disputed charges on the memorandum kept mutually by the parties, is this entry ; — “ Interest on Lord’s account of overdrawn according to the articles.” These words show, that in estimating the profits, the plaintiff found that the defendant had in one of more years drawn moro, than the $ 300, and the memorandum is made, that the defend ant is chargeable with interest on the excess. It is therefore contended for the plaintiff, that sufficient is shown to induce the Court to say that the plaintiff might, in making the contract, reasonably understand, that in the word profits was not included the interest now claimed. The construction under which the plaintiff acted in making his offer, is the construction which will be adopted by a court of equity. Stoughton v. Lynch, 1 Johns. Ch. R. 467 ; S. C. 2 Johns. Ch. R. 210. If the Court shall adopt the plaintiff’s construction of his proposition, it is too late for the defendant to say he is ready to comply with it, for the plaintiff’s object was an immediate settlement of the concern, and this was the consideration of the advantageous offer which he made to the defendant.</p> <p>4. Admitting the agreement to be valid and binding upon both parties, the plaintiff has a right, under this bill, to claim the execution of the agreement, by having an account rendered upon the principles of it, and to seek relief i equity. The case is covered by the prayer in the bill both for general and specific relief. Wilkin v. Wilkin, 1 Johns. Ch. R. 117; Blake’s Ch. Pract. 31. Assuming that the bargain was founded on the estimate of the profits at $25,500, it is still necessary to ascertain from the articles of copartnership and the books and accounts which are in the defendant’s hands, what is and what is not profits, and how much of what is profits has been received by the plaintiff as a copartner, and what interest, if any, he is to be charged with on sums received by him as such copartner. The Court have equity jurisdiction over these questions, by virtue of St. 1823, c. 140, § 2. See also 3 Bl. Com. 437 ; Ludlow v. Simon, 2 Carnes’s Cas. in E:r. 37, 56 ; Porter v. Kimberley, 9 Johns. R. 470.</p>

<p>A copy of the proceedings of any court of record in this Commonwealth, certified te be a true copy of the record of such court, by the clerk of such court, undez the seal thereof, is competent evidence of the existence of such record, m anj other judicial tribunal in this Commonwealth.</p> <p>In a criminal trial, a clerical error in a copy of a record offered in evidence, maj be amended at any time before the cause is given to the jury.</p> <p>It is competent to the legislature to authorize a court in one county, to sentence to an additional punishment a convict in the state-prison who has been more than once convicted in other counties, of crimes committed in those other counties.</p> <p>A statute erecting a new tribunal or giving jurisdiction to an existing court to *rj past offences, is not ex post facto.</p> <p>The 5th and 6th sections of St. 1817, c. 176, which prescribes additional punish, ment against convicts in the state-prison who have been more than once convicted, are not repealed by St. 1827, c. 118, except so far as they are altered by the 19th and 20th sections of this statute.</p> <p>The statute of 1817 having prescribed that such additional punishment should be awarded by the Supreme Judicial Court, and the statute of 1827, that it should be awarded by the Municipal Court of the city of Boston, it was held, that the Municipal Court might lawfully pass the additional sentence where the last of fence and conviction took place between the enactment of the two statutes. Where an indictment for a third offence recites two former convictions and they are found by the verdict, the additional punishment ought to be, and in judgment of law will be deemed to be, embraced in the sentence then awarded upon the in dictment, so that no information will afterwards lie, to award my additional punishment.</p> <p>Two convictions at one and the same term of the same court, for two distinct crimes, each of which is punishable by confinement to hard labor for a term of years, are two convictions within the meaning of the statutes before mentioned for which additional punishment may be awarded</p>

<p>Assumpsit on a promissory note given by the defendant 10 the plaintiff at Halifax, Nova Scotia, dated February 5, 1821, payable on demand.</p> <p>The defendant pleaded 1. the general issue ; and upon this issue a verdict was found for the plaintiff:—2. actio ncn acerevit infra sex annos: — and 3. non assumpsit infra sex annos.</p> <p>To the second plea the plaintiff replied, that at the time when the action accrued he was beyond sea, without any of the United States, to wit, at Halifax, and there lived until he afterwards, to wit, on tire first day of June 1829, came into the United States, and that within six years after his so coming into the United States, to wit, on the 8th of August 1829, he commenced this action.</p> <p>The defendant rejoined, that the plaintiff and the defendant were both aliens, and were, at the time when the supposed cause of action accrued, inhabitants of Halifax, living under the laws of Nova Scotia, and continued to be inhabitants of and residents in that province from that time for more than six years next ensuing, to wit, on the 1st of March, 1827, that by the laws of Nova Scotia in force at the time when the sup posed cause of action accrued, and ever since, all actions on the case upon promises are barred, unless commenced within six years after the cause of action accrued, that the supposed cause of action accrued to the plaintiff at Halifax on the 5th of February, 1821, and not afterwards, and that the plaintiff did not within six years next after that day commence an action for the same.</p> <p>To this rejoinder the plaintiff demurred, assigning for cause, 1. that it was a departure from the plea; — 2. that as it was founded upon the law of limitations of a foreign country, it was no defence to the plaintiff’s action brought in this State ; and 3. that the law of Nova Scotia is not set forth specially.</p>

<p>If a common carrier receives goods directed to be carried in a particular manner and position, he is bound to carry them in that manner and position; and if he carries them otherwise and they are lost or damaged, the burden will be upon him to prove that the loss or damage was in no degree attributable to his breach of contract, but was occasioned solely by the act of God, or a public enemy, or the act or fault of the owner himself.</p> <p>A box containing a glass bottle filled with oil of cloves, delivered to a common carrier, was marked “ Glass —with care —- this side up.” Held that this was a sufficient notice of the value and nature of the contents, to charge him for the loss of the oil, occasioned by his disregarding such direction.</p>

<p>Debt upon an administration bond, dated March 15, 1805, made to the judge of probate for the county of Nantucket.</p> <p>The action was commenced in 1824. The defendant pleaded, 1. non est factum ; 2. solvit ad diem; and 3. solvit post diem. Issues were joined on these several pleas. Ar the trial before Putnam J. the jury found, “ that the defendant ¡s not indebted to the plaintiff in manner and form as alleged in die writ and declaration.”</p> <p>In regard to the second issue, the jury were instructed — that if they should be satisfied from the evidence, that the heirs of the intestate, after the supposed date of the bond, agreed with his widow, that the administrator (for whom the defendant was surety) should not proceed in the settlement of the estate in the probate office, but that all the property which belonged to the intestate should be delivered over to the widow for her use during her life, the heirs to divide among them what she might leave at her death, and that the heirs intended that such payment should operate just as if it had been paid to themselves under an order of distribution, and that the administrator did deliver .over the property to the widow accordingly — they might, from that evidence and th-i great length of time which had elapsed since the date of the bond, presume that the bond was discharged and paid, notwithstanding there was no evidence of any such agreement under seal.</p> <p>At the time when the jury returned into court with their verdict, neither of the counsel was present; and the jury being interrogated by the judge, whether they found their verdict on the ground that the bond declared on was not the deed of the defendant, the foreman said that they were unequally divided upon that point, but that they all agreed that if it was a good bond originally, it had been paid and discharged. After this inquiry and before the jury separated, the defendant’s counsel came into court. The jury were then permitted to separate, with an intimation from the judge, that their verdict should be put into form and they might affirm it the next day. When they came in on the next day, they said that they bad an opinion as to the bond’s having been altered, as alleged at the trial, and could probably have made their verdict upon that point. The judge inquired if they had had any conversation in relation to the case since they had separated. Gibbens, one of the jurors, answered upon oath, that Mr. Coffin, who was one of the defendant’s counsel, came into his store tr Duy grapes ; that Coffin said nothing about the case, hut he (Gibbens) said to Coffin, “You probably thought we should not have formed a verdict so soon ; ” that Coffin said he had felt very much interested in the case, for that Jones was an excellent man ; that they talked about the case possibly about two minutes ; that the impression left on the mind of Gibbens was somewhat more unfavorable than before, in regard to one of the plaintiff’s .witnesses ; and that he (Gibbens) supposed the verdict was completed.</p> <p>The defendant was desirous of having an inquiry made of the jury, what their opinion was in regard to the alleged alteration of the bond after it was signed. But the plaintiff objected, and the judge did not put the question. The defendant then moved to have the verdict affirmed as it was originally brought into court; which was done, notwithstanding the plaintiff objected to it.</p>

<p>Trespass for 8474 Russia mats, taken by a writ of attachment in favor of John Stone, on May 8, 1829, and sold on execution, by a deputy of the defendant, as the property of George A. Hodges & Co.</p> <p>At the trial before Putnam J. the defendant called G. Wheelwright, the partner of Hodges, who testified that the mats were consigned to the firm by one Slade, for sale, and that on November 5, 1828, they made an agreement with the plaintiffs, Kittredge & Wyman, as follows : — “Bought of George A. Hodges 20,000 Russia mats at ten cents each, at six months’ credit, each party equally interested one half each; said Hodges is to store said mats six months free of expense, and the said Kittredge & Wyman and Hodges are to pay one half of the expenses of hoisting said mats into said Hodges’s loft, and no other expense of getting them into said loft. And it is further agreed, that as fast as said mats are sold, the proceeds are to be paid to said Hodges, and he is to allow interest for the same until the six months’ credit expires. The expense of delivering said mats to be paid by said Kittredge & Wyman and George A. Hodges & Co. as interested.” The mats were kept in the store of Hodges & Co., and had never been out of their possession until they were attached as above mentioned. On May 6, 1829, the plaintiffs and Hodges and Wheelwright made a new arrangement, and a writing was given as follows:— “ Boston, May 6,1829. Messrs. Kittredge & Wyman bought of George A. Hodges & Co. 20,000 Russia mats at 10 cents each, $2000. Received payment. It is understood Kittredge and Wyman are to pay 4 dollars per month storage for the above mats from this date, and interest on the mats until paid, and the said Kittredge and Wyman are not to pay for said mats more than the amount indorsed on this bill, till the same are sold. George A. Hodges & Co. Kittredge & Wyman.” Upon this was the following indorsement : — “Boston, May 6, 1829. Received on account of within, $ 104,50, being for mats sold to this date ; also received $20, Nov. 5, 1828 ; also received $200, May 1, 1829 ; also received their notes at 30 days for $280, at 4 months for $250, at 6 months for $250, — amounting in all to $1104,50. George A. Hodges & Co.” The arrangement of May 6, 1829, was made by Hodges and Wheelwright to prevent an attachment of the property by their creditors, but the plaintiffs had no notice of this intent. Hodges and Wheelwright were to keep possession of the mats until the purchase money should be paid. The plaintiffs gave no note nor money for the part of the mats which was taken by Hodges and Wheelwright under the first agreement, unless the amount (including the notes) indorsed on the bill of sale, over and above the price of 10,000 mats at 10 cents each, should be considered as part payment; but the plaintiffs verbally agreed to pay cash for them as they should have opportunity to sell and dispose of them; and in i the mean time Hodges and Wheelwright were to retain possession of them. On Novenfcer 5, 1828, when the mats were sold as first mentioned, Hodges & Co. gave credit to Slade for 20,000 mats, the supposed quantity sold on that day. The witness considered the mats which were to be paid for in cash, and for which notes had not been given, as belonging to Hodges and Wheelwright. .Speaking of the arrangement, of May 6, the witness said, “We made a new arrangement so far as to give a bill of sale for the whole ; and allowing for what had been previously sold and taken away, the amount sold, together with the cash which the plaintiffs had paid and the notes of hand, were indorsed on the bill of sale, amounting, as was supposed, to about one half of the whole mats. At the time when this arrangement was made, it was proposed to the plaintiffs to give their notes for the whole amount of the mats, in order that Hodges and Wheelwright might raise money upon the notes, but the plaintiffs would not consent, being unwilling to give their notes for any more, but they thought they should pay for the residue, in the course of the summer, and were to take them away as they should pay for them.” He said he thought that the part of the mats which were not paid for, could be attached, and that his partner, Hodges, giving preference . to Stone, Avho was a creditor of the firm, procured the attachment to be made for Stone, and that Stone had no knowledge that any agreement had been made to sell the mats, or that they had been sold, but supposed, at the time of the attachment, that they belonged to Hodges and Wheehvright.</p> <p>It was proved that the notes Avhich had been given, were on May 8, 1829, transferred to a creditor of Hodges and Wheelwright ; and when. any one of them was paid, mats to the amount were counted off and delivered. And the quantity of mats which came to the amount of the notes and cash indorsed on the bill of sale, and which had not been taken away, were counted off and separated from the whole mass, after the attachment, and the residue, being 8474, were held under the attachment. The number of the mats had never before been ascertained. When the mats were taken by the deputy sheriff, the plaintiffs did not offer to pay the money which they had verbally agreed to pay as before stated.</p> <p>A verdict was taken for the plaintiffs for the value of the mats at 10 cents each, with interest from the date of the writ, subject to the opinion of the whole Court.</p>

<p>In the case of insurance on cargo and freight at and from a foreign port, the policy will attach, notwithstanding the vessel while in port, with the cargo on board, may need repairs to put her in a fit condition to undertake the voyage $ the implied warranty being that she shall be seaworthy, not at the time of having her cargo on board, but at the time of her sailing.</p> <p>Thus, insurance was made, November 7,1827, on cargo and freight of a vessel, at and from Vera Cruz to Campeachy and Laguna, either or both, and at and from thence to her port of discharge in the United States, and on December 18th, by an alteration in the policy, for an additional premium, permission was given her to return from Laguna to Campeachy and proceed thence to her port of discharge in the United States, instead of proceeding as before described. The vessel, while at Vera Cruz, with a cargo on board, was unseaworthy for a voyage 3 she however sailed thence, in September, 1827, for the United States, but from necessity put into Campeachy, where the cargo was unladed, the vessel caulked, and the cargo reladed. She sailed to Laguna, where she arrived October 27th, and took in a quantity of logwood. She then began to leak again, but on November 13th got under weigh for the United States. She put into Campeachy again from necessity, and on the 29th proceeded for the United States. She again went to Campeachy from necessity, and the cargo was there wholly unladed, the vessel repaired and made seaworthy, and the cargo sold to defray the expense of these repairs. She then went to Laguna, and took in another cargo, with which she arrived in the United States. It was held, that the policy attached at Vera Cruz, and again at Campeachy after the vessel was there made seaworthy, and therefore that the insurers were entitled to recover both of the premiums. .</p>

<p>In an action brought by one Talbot against Clark, judgment was rendered in favor of Clark for costs of suit; which not being paid on execution, Clark sued out a writ of scire facias against Paine as the indorser of Talbot’s writ. In the scire facias, Clark was styled “ of New Orleans, in the State of Louisiana.”</p> <p>Paine pleaded in abatement, that this writ was not indorsed by the plaintiff with his Christian and surname, nor with the Christian and surname of any agent or attorney of the plaintiff, &c. pursuant to St. 1784, c. 28, §11.</p> <p>The plaintiff, protesting that the writ is not an original writ, and that it is not required to be indorsed, replies, that before the service of the writ, it was duly indorsed by the attorney of the plaintiff, in the proper signature, names and handwriting of the same attorney, who then was and yet is a well known officer of this court (of Common Pleas) duly admitted and practising therein as an attorney and counsellor at law, &c. ; and that the indorsement is in the letters following, to wit, “ J. E Smith, Atty. of John Clark.”</p> <p>The defendant rejoins, that the Christian name of the plaintiff’s attorney was Joseph Emerson, and his surname, Smith, and that the writ was not indorsed with the Christian and surname of Joseph Emerson Smith, absque hoc that the writ was duly indorsed in the proper signature, names and handwriting of the same attorney.</p> <p>The- plaintiff surrejoins, that the writ was duly indorsed by the attorney in his proper signature, &c. thus, &c. (as before,) and concludes to the country.</p> <p>To this there was a general demurrer.</p>

<p>£n aa action of assault and battery brought by a mariner against the mate of the ship, who by order of the master had tied the plaintiff up to the rigging for the purpose of punishment, it was heldi that the averments that the defendant was bound to obey the orders of the master, and that he used no unnecessary violence in tying up the plaintiff, were mixed questions of law and fact, and therefore properly put in issue to the jury.</p> <p>A demurrer to a plea which is defective in being an answer to only a part of the declaration, does not operate as a discontinuance, but entitles the plaintiff to judgment.</p> <p>Where the general issue is pleaded and likewise a plea which is an answer to only a part of the declaration, the plaintiff is not entitled to judgment by nil dicii for the part which is not answered by this plea.</p>

<p>Where a debtor made a general assignment of his real and personal estate and choses in action, in trust fof the payment of such creditors as should become parties to the assignment, and after the assignment had been executed by creditors whose demands were greater in amount than the real and personal estate in the hands of the assignee, but less than the whole property assigned, including the choses in action, another creditor attached by the trustee process a sum in the hands of a debtor of the assignor and included among the choses in action assigned, it was held, that the attaching creditor was entitled to a preference over creditors who executed the assignment subsequently to the attachment.</p>

Assumpsit to recover the amount of one half of the loss upon an adventure in forty-nine hogsheads of hams, purchased in Boston, September 4, 1826, and consigned to New York and Charleston for sale.

<p>Assumpsit on a policy of insurance, dated August 21, 1827, by which the defendants “ cause Foster and Thompson, for the owners of brig Sampson, to be assured, lost or not lost, one thousand dollars on property on board brig Sampson, at and from Havana to Boston.”</p> <p>The declaration contained several counts : — the first averring the interest in the property shipped to have been in Benjamin Gorham, Francis A. Babbitt and Josiah Mason, owners of brig Sampson ; — the second averring that they were the owners of the vessel, and that they were jointly interested in property on board to the amount of $ 456*37, — that Gorham was solely interested in property on board to the amo int of $ 317*55, — and Babbitt solely interested in property o i board to the amount of $ 142*12 : — and the others were t íe usual money counts.</p> <p>The defendants pleaded the general issue.</p> <p>Upon a case stated it appeared, that Gorham, Babbitt and Mason were the owners of the vessel at the time when the insurance was made, and until her loss. The authority of the plaintiffs to effect the insurance, was by virtue of a letter, dated Havana, July 30, 1827, addressed to them by Gorham, who was the master and one of the owners of the vessel, in these words : — “ The property to ship home in Sampson, say 0 1000, you will insure at lowest rate on account of owneis.” The vessel sailed from Havana in August 1827, with property on board belonging to Gorham, Babbitt and Mason jointly, to the amount of $456‘37, and other property belonging to Gorham solely, to the amount of 0 317"55, and other property belonging to Babbitt solely, to the amount of 0 142T2 ; together with other property, of various amounts, belonging to other persons. The vessel, with this property on board, was totally lost by the perils of the seas.</p> <p>The defendants were to be defaulted or the plaintiffs to be nonsuited, or such other order to be made as the Court should think proper.</p>

<p>Assumpsit on a policy of insurance, dated April 20, 1829, by which the plaintiffs were insured $ 1250 on the brig Marshal Ney, for one year from April 18, 1829.</p> <p>The brig was entirely new, and was intended as a regular packet vessel in the line between Boston and Baltimore. She was valued in the policy at $ 10,000, and one eighth of her was owned by the plaintiffs.</p> <p>The brig sailed from Boston for Baltimore, on her first voyage, on the 19th of April, with a cargo worth about $ 60,000, on freight; and on the 22d she struck on a shoal called the Handkerchief, off Chatham, where she continued to beat heavily for forty-eight hours, when the wind forced her over the shoal, and she capsized and sank in seven fathoms of water.</p> <p>On the 30th of April the plaintiffs abandoned the vessel to the underwriters, and now claimed for a total loss.</p> <p>The master, being called by the plaintiffs, testified that the vessel sank about eight miles from land, and that three days after, she had been washed in about six n iles nearer land; that she remained under water about six wrecks ; that she was repaired by the defendants, but he did not think she was so good after being repaired as she was before the disaster ; that she was strained and the deck was sprung down ; that the new rigging was not of so good quality as the old, and was much less in weight.</p> <p>The defendants called B. Brintnall, a ship carpenter, who testified that he was employed by them to raise the brig. That he set off from Boston on the 16th of May, but it was several days before the weather would permit him to work. He began to work on May 27th. He.found the brig on her beam ends at high water, not very heavy on the ground. He had two vessels to assist in weighing her. He got the deck out of water so as to work upon the cargo on the 30th of May, and put the vessel upon the marine railway in Boston, on the 27th of June. Her starboard side was chafed half through, seven streaks under the wales, but not strained. Twelve or fourteen feet of the keel washed off. The witness was ordered to put her in as good order and better, if he could, than she was in before, without limits as to price ; and he repaired her as well as he could. He considered her to be as strong and sound as she was before, though she might not bring so much in the market.</p>

<p>In an action by a vendee, upon a written agreement of the vendor, by which he undertook to ship to the vendee a certain quantity oft( good fine wine,” and acknowledged the receipt of payment, it was held that these words, in this instrument, did not amount to a warranty that the wine was of any particular quality, not only because they were too indefinite, but because the instrument in which they were used was not the contract of sale 3 and that parol evidence was admissible, to show the actual terms of the sale and that the defendant shipped the wine selected by the plaintiff.</p>

<p>An insolvent debtor assigned his real and personal estate to three of his creditors, V., A. and H., in trust to pay, in the first place, the debts due to the assignees, and next, those due to other creditors 5 and H. being likewise responsible for the debt due to V. and A., it was agreed between the three, that V, and A.’s demand should be paid before that of H. The whole property was insufficient to pay the demands of the assignees alone. It was held, that the three assignees had joint possession of the property for the purposes of the assignment, and that V. and A. therefore, who had the actual custody of it, could not be charged in a process of foreign attachment as the trustees of H.</p> <p>Where a person holds real estate, upon a promise to sell it and pay over the proceeds, he is not liable as trustee in a process of foreign attachment, it being contingent whether he will ever sell it and receive the proceeds.</p> <p>So if he has actually sold it, and taken promissory notes for the price, and the notes remain unpaid at the time of the service of the process, he cannot be charged as trustee.</p> <p>Expenses having been incurred and paid by V. and A., with the assent of H., in defending a suit in which the three had been summoned as trustees of the assignor, it was held, in a like process against V..and A. as trustees of H., that they were not liable for the amount of those expenses, but that the same were a charge on the property defended for the common benefit of the three assignees.</p> <p>It was also held, that the commission due to V". and A. for their services as assignees, accrued simultaneously with the performance of the services, and that in a process of foreign attachment against them to recover money which had come to their hands under the assignment, they might retain the amount of commission due at the time when they were summoned as trustees.</p>

<p>Case against the defendants as proprietors of a stagecoach running between Boston and Providence. Trial before Shaw C. J.</p> <p>The first count, after the usual averments that the defendants received the plaintiff as a passenger, for a reasonable compensation, alleges that “ the defendants so carelessly and negligently provided, fitted out, managed and conducted their said stage-coach, that while they were driving and conducting the same, the said stage-coach broke down and thereby crushed the plaintiff under the same and broke his left leg, bruised and wounded his knee and dislocated his shoulder and otherwise greatly hurt,” &c.</p> <p>The second count, after the same introductory averments, and the same averment that the defendants so negligently provided, &c. states the injury thus, — that while the defendants were driving and conducting the stage-coach, the same was overturned and thereby crushed the plaintiff under it, and broke his leg, &c. as in the first count.</p> <p>The defendants contended that the proof did not correspond with either of these descriptions of the nature and cause of the injury, and that so there was a variance between the allegations and the proof,</p> <p>The proof was, that the accident was occasioned by the unscrewing and falling off of a nut which secured the right fore wheel of the carriage to its axle. Whether this was owing to want of due care on the part of any of the defendants’ servants, was a question of fact which was left to the jury-</p> <p>In regard to the mode in which the accident occurred, the proof was, that while the coach was moderately driving through the south part of Boston, the nut in question unscrewed and fell off, unobserved, and by the motion of the coach the right fore wheel ran off, the end of the axletree fell to the ground, and the coach, in consequence, overset on the right side, and fell upon and broke the plaintiff’s leg.</p> <p>In regard to the allegation in the first count, that the 'defendants so negligently provided, fitted out, managed and conducted the carriage, that it broke down and thereby crashed the plaintiff under it, — and the allegation in the second count, that by means thereof it overturned and crushed the plaintiff under it,—the jury were instructed that it was sufficient to maintain these allegations, if the insufficiency of the coach, or its appendages, was the real and efficient, though not the immediate and proximate cause of the breaking down and overturning ; that if by means of the negligence of the defendants or their servants, the nut was insufficiently secured, by means of which the wheel came off, by means of which the carriage fell or broke down and overturned, this would support the allegation, that by means of such careless fitting out, &c. the coach broke down and overturned ; without alleging more particularly the intermediate means by which the injury was occasioned.</p> <p>The jury found a verdict lor the plaintiff, and assessed the damages at $ 1500.</p> <p>The defendants moved for a new trial, on the alleged ground of variance, and also on the ground of newly discovered evidence.</p>

<p>Where, upon the petition of the guardian of a minor for license to sell real estate of the ward, such license is granted and a person appointed to make.the sale, the agent is bound to answer upon oath, in the probate court, interrogatories relative to his proceedings under the license.</p> <p>Where such agent sold the land and took mortgages for the purchase money in the name of the minor, and after the minor came of age, received from her a power of attorney to discharge the mortgages, it was held, that he was not thereby discharged of his obligation to render an account, and answer such interrogatories in the probate court.</p>

David Wier, by his last will, dated March 20, 1819, devised ail his real and personal estate, subject to the payment of his debts, to John Longley, his heirs and assigns, upon trust to sell the same at such time and upon such terms as he should deem expedient, and after realizing the proceeds of such sale and discharging all expenses incident to the ex-' ecution of the trust, to pay thereout $ 800 to Francis Hall, $ 100 to E. T. Hubbard, $200 to Longley, the trustee, $200 to…

<p>Assumpsit. The first count was on a promissory note, dated October 14, 1828, signed 'by the defendant, payable to George P. Thomas or order, for $ 2314-44 in four months and grace, and by Thomas indorsed to the plaintiffs ; the second was indebitatus assumpsit for goods sold and delivered, &c.; and the third was on an insimul computassent for $ 1000. The general issue was pleaded and joined.</p> <p>The plaintiffs’ counsel, in opening the case, stated that the note was given in payment for a quantity of sugar sold by the plaintiffs to the defendant, which was afterwards deposited by him in their hands as11 collateral security for payment of the note, and that they had received from a re-sale of the sugar the sum of $ 1712-78, which they considered as payment of so much of the note, and therefore claimed only the balance ; that a controversy existed as to their right to recover on the note, but there could be no doubt of their right to recover on the other counts, if they failed on the first ; that they should rest their case, in the first instance, on the note, and if the defendant should produce any evidence requiring reply, they would introduce testimony to establish their right of recovery on the count upon the note or on the other counts.</p> <p>The plaintiffs’ counsel then read tire note, the execution of which was not denied, and there rested their case.</p> <p>The defendant’s counsel then stated that they should consider the question as relating to the note alone, and should object to the introduction of any evidence by the plaintiffs, after the defendant’s evidence should be in, in order to sustain the second or third count.</p> <p>The defence set up was, that the note never was accepted by the plaintiffs ; that the consideration for it had wholly failed, or that there never was any consideration for it, and that the contract for which it was given was rescinded, and the plaintiffs had agreed to give the note up to the defendant to be cancelled.</p> <p>One Dunbar, who was called by the defendant, testified that in 1828 he took 30 hogsheads of sugar of the defendant on storage ; that afterwards, in November 1828, the defendant transferred 29 .hogsheads (having sold one to Billings & Marsh) to the plaintiffs, and the witness gave the plaintiffs a writing, dated November 7, 1828, stating that he had received of them 29 hogsheads of sugar on storage from October 14th, to be delivered to them or their order ; that by a memorandum made by the witness, of a conversation between the plaintiffs and the defendant, it appeared that the defendant gave up the 29 hogsheads on condition that he should have his note back when he should have paid for the hogshead sold to Billings & Marsh.</p> <p>George P. Thomas testified that he asked Dehon, one of the plaintiffs, to give up the note or take the witness’s name off, which Dehon refused to do ; that the defendant wished the witness to hold the sugar till the note became due ; that the witness made a sale of part of the sugar and went to the defendant, who said the sugar was not his and that the witness must go to the plaintiffs ; that he went accordingly, and they told him he might sell the sugar, but must report to them the names of the purchasers, and if they were satisfied with the names, the witness could make the sales, but he refused so to do ; and that he considered that he was to receive the money and hold it for payment of the note when it became due.</p> <p>One Goff testified, that about a fortnight after the first sale, a young man came from the original owners of the sugar and told the defendant he wanted the bill of parcels, as there were some errors in it; that it was borrowed and never returned; and that the note had been given before the bill was taken back.</p> <p>It was further testified, that the defendant was present when the sugar was re-sold by auction, and forbade the sale, and demanded either his note or the sugar ; that the plaintiffs said they would not give up the note; that the defendant asked them if his bid would be received, and that the plaintiffs refused to receive it.</p> <p>The defendant’s counsel, after their evidence was in, stated that they should argue the case as standing on the first count, and objected to the admission of evidence to maintain any other count ; which objection was overruled.</p> <p>• The plaintiffs then introduced the deposition of C. Hap-good. He testified that he carried the bill for the sugar to the defendant who made a small deduction from it; that he took the note, which was for the balance, with Thomas’s name upon it, and carried it to the plaintiffs, who said it would not do, and told him to carry it back to the defendant and to get the bill, to see what deduction had been made ; that he did accordingly, and the defendant said he would get a name that would do, or pay the cash ; that he carried the note back to the plaintiffs ; that the defendant afterwards told the plaintiffs t^ey should have possession of the sugar until he paid $ 1000 or made the note satisfactory ; that the plaintiffs told the defendant he must get an order for the sugar from Dunbar in favor of the plaintiffs ; that the defendant said he would sell the sugar for such notes as they would take for the payment of his bill; that the security was not given for the note but for the bill, the note not being satisfactory; that the $ 1000 was to have been paid on account of the bill; that the witness understood that the note was to be kept by the plaintiffs until the bill should be paid ; that it was not agreed that if the defendant should not make the note satisfactory, he should give up the sugar.</p> <p>The plaintiffs introduced a notice given by them to the defendant, that the 29 hogsheads of sugar “ bought by him and for which he had not settled agreeably to the terms of the sale, would be re-sold on the 25th of February for cash on delivery, and that for any loss on the sugar he and his indorser would be held accountable.”</p> <p>It was admitted, that on the day when the note became due, the defendant tendered to the plaintiffs the sum for which one hogshead of sugar had been sold to Billings & Marsh.</p> <p>Wilde J. instructed the jury, that the plaintiffs’ right of action "depended entirely on the first and second counts ; that if upon the evidence they were satisfied of the plaintiffs’ right to recover of the defendant on either count, they must find for the plaintiffs ; that the note was admitted to have been duly signed and indorsed, and that the plaintiffs, on producing it, were entitled to recover, unless good cause could be shown to the contrary, and that the burden was on the defendant to make that out; that if they were satisfied that the note was intended by the parties to be retained by the plaintiffs, their verdict would be on the first count; or if they were satisfied that the note was not accepted by the plaintiffs, and that the sugar was to be returned to them as collateral security for the payment of the bill or price of the sugar, and that the note ought to be returned, their verdict should be on the second count; but that if they were satisfied that the original contract was rescinded, and that the sugar was returned in consrruence and not as collateral security, they must find for the defendant.</p> <p>_ ..... The jury were further instructed, that if there were any evidence of misconduct or unfairness on the part of the plaintiffs in making the re-sale, supposing the sugar to have been held as collateral security, still the jury could not consider such misconduct or unfairness in mitigation of damages, but that it would constitute a separate and distinct cause of action, for which the defendant must seek the appropriate remedy.</p> <p>The jury returned a verdict for the plaintiffs on the first count.</p> <p>The defendant moved for a new trial, 1. because the judge permitted the plaintiffs, after they had opened their case and put in all their evidence to support it and waited for the defence to be opened and the defendant’s witnesses to be examined, to put in new evidence to support other counts in their writ, and evidence that had no tendency to rebut the evidence of the defendant’s witnesses, but to prove new, distinct and other contracts and matters different from the contract which, in their opening, they solely relied upon and endeavoured to prove, "which new evidence may have influenced the jury much in finding their verdict.</p> <p>2. Because the jury were misdirected in this particular, that any misconduct or unfairness of the plaintiffs in the re-sale of the sugar, by means of which the proceeds were less than without such misconduct or unfairness they would have been, constituted no lawful cause for reducing the plaintiffs’ damages in this action.</p> <p>3. Because the verdict finds only parcel of the issue, to wit, the promise in the first count, and does not find in relation to the other counts.</p>

This was an indictment charging that the defendant, at Boston, on the 3d of October 1829, with force and arms, two large silver spoons of the value of six dollars, and twd silver tea spoons of the value of three dollars, of the goods and chattels of one William Fenno, in thé dwellinghouse of Fenno in his possession then and there being, did then and there in the dwellinghouse feloniously steal, take and carry away, against the peace iác. and the form of the statute, Sic.

Assumpsit for goods sold and delivered to the defendant on January 5th and 28th, March 23d and 30th, and April 6th, 1829. The writ was dated April 20th, 1829. At the trial before Wilde J., the price, quantity and delivery of the goods (which consisted of leather) were admitted by the defendant, but he set up as a defence to the action, that each parcel was sold and delivered upon an agreement for a credit of six month? from the time of the delivery.

<p>A plaintiff in an action, having appealed, became bound by a recognisance, with surety, to prosecute his appeal with effect and to pay all intervening damages and costs 5 and he entered his appeal, but afterwards became nonsuit. It was held, that the appeal was prosecuted with effect, within the meaning of the recognisance.</p> <p>An action upon such recognisance, to recover the intervening costs, cannot be sustained, unless such costs have been taxed and judgment rendered therefor, before the commencement of such action.</p> <p>In declaring upon such recognisance against the principal, the plaintiff in the original action, it was held to be unnecessary to allege that he had notice of the recovery of such judgment, or to allege a special demand of payment.</p> <p>So in declaring against a surety, who was the attorney of record to the principal in the original action.</p>

<p>This was an action of covenant broken, brought by Harriet Robertson, as administratrix of Andrew Robertson deceased.</p> <p>The declaration sets out the substance of an indenture, under seal, of three parts, made on the 7th of May 1827, between Samuel Downer and Luke Baldwin junior, merchants and partners, of the first part, Gardner, the defendant, of the second part, and certain creditors of Downer & Baldwin, of the third part, by which indenture Downer & Baldwin conveyed all their goods, real estate and choses in action to Card ner, in trust, first, to pay all the reasonable expenses growing out of the assignment; secondly, to pay all the bonds at the customhouse due from Downer & Baldwin ; thirdly, to pay all the creditors of Downer & Baldwin, parties to the indenture, whose names, with the amounts due to them, are borne on a schedule marked A, annexed to the indenture, and in the order in which their names are placed on the schedule, the full amounts due to them respectively; fourthly, to pay to .Andrew Robertson & Co., and other persons named, all such amounts as they might be obliged to pay in consequence of having indorsed certain notes, and having become sureties in certain customhouse bonds, enumerated in a schedule annexed, marked C; and then to pay over and distribute the residue of the assigned property among the several persons whose names are borne on a schedule annexed, marked B, who should become parties to the indenture within sixty dayu, in proportion to their several demands ; and to pay over the residue, if there should be any, to Downer & Baldwin. The declaration further alleges, that Gardner did, in the indenture, covenant with each of the parties thereto, that he would, according to his best skill and judgment, perform all the trusts therein contained, The plaintiff then avers, that the name of Andrew Robertson, the intestate, is borne on the schedule A, and that the amount of $ 11,769-39, is placed thereon, as due to him; and that he became a party to the indenture on the 7th of May.- The plaintiff then assigns for breach, that Gardner has not, according to his best skill and judgment,, sold and disposed of the goods and real estate assigned to him, nor collected the choses in action, nor applied the proceeds of the assigned property according to the trust; and that he did not pay to the intestate, in his lifetime, and has not, since his decease, paid to the plaintiff as administratrix, the sum of $ 11,769-39, but that the same remains wholly due and unpaid.</p> <p>The defendant, after oyer of the indenture, and of the schedules thereto annexed, (which indenture was executed by the parties of the first and second parts, and all the parties of the third part whose names were on schedule A, and some of those whose names were on schedule B,) pleads, that after the making of the indenture and before either of the trusts to be executed by the defendant, was performed in whole or in part, viz. on May 15, 1827, the intestate, by a writing under his hand, declared and consented that certain promissory notes indorsed by his partnership, styled Andrew Robertson & Co., or by the defendant, or by C. Wade, or sums of money for which they or some of them were liable, should be paia out of the assigned property, before the debts mentioned in schedule A, and that the intestate thereby directed and licensed the defendant to pay those indorsed notes and sums of money in preference to the debts contained in scheduled?; that afterwards, on June 2, 1827, the intestate by another writing under his hand, declared and consented that certain debts due from Downer & Baldwin on account of the intestate’s partnership, ought to have been placed among the preferred debts and should be paid next in order after the customhouse bonds and the indorsed notes mentioned in the indenture, and the intestate thereby directed and licensed the defendant to pay, out of the assigned property, the debts due from Downer & Baldwin, on account of the intestate’s firm, to an amount not exceeding $3000, in preference to the debts mentioned in schedule A ; that he, the defendant, did, with all convenient speed, and according to his best skill and judgment, sell the goods and real estate and collect the choses in action assigned to him ; and that at the time of the commencement of the plaintiff’s action, the whole amount of the moneys which had been received by him as the property assigned, was not sufficient for the payment of the debts which by the indenture and by the orders and licenses given to the defendant by the intestate, were to be and ought to be paid by the defendant in preference to and before the debt alleged in the declaration to have been due from Downer & Baldwin to the intestate ; and that the defendant, at the time when this action was commenced, had paid and applied all the proceeds of the assigned property which had been received by him under the indenture, for, towards and in satisfaction of the several expenses, debts and claims to which, by the indenture and the abovementioned orders and licenses of the intestate, the same proceeds were applicable and payable.</p> <p>To this plea the plaintiff demurred.</p>

This was an action of covenant broken, brought against the executors of the will of Thomas Leach.

<p>Where the defendant was arrested on mesne process and gave bail, and the plaintiff, before judgment was rendered, covenanted not to arrest him on any writ or execution within four months, it was held, that the bail was not thereby discharged, for the covenant was only collateral to the action and did not deprive the plaintiff of the power to arrest the defendant, nor the bail of the power to surrender him within the four months.</p>

<p>Assumpsit on a policy of insurance underwritten by the defendants, upon property of the plaintiffs shipped on hoard a vessel, from a port in England to a port of discharge m the United States ; 16 partial loss to be computed upon each package as if separately insured.” The plaintiffs allege in their declaration, that on May 5, 1828, they shipped on board the Aspasia, at Liverpool, certain goods, to be conveyed to New York, and that owing to tempests on the voyage the salt water found access to the goods and injured them ; and the plaintiffs claimed a partial loss amounting to thirty-three per cent upon the value of the goods.</p> <p>At the trial before Wilde J. it appeared, that the goods alleged to have been damaged consisted of thirty-two bales of point and duffil blankets ; and that the blankets were manufactoed for the plaintiffs by one Wood, in the kingdom of Great Britain.</p> <p>The plaintiffs offered evidence tending to prove that the blankets were damaged on board, by the perils alleged in their declaration. The defendants contended that the damage arose from some defect in the manufacture of the blankets, or from their having been fraudulently packed by Wood in a wet state, for the purpose of increasing their weight, the blankets having been purchased by the plaintiffs by weight.</p> <p>The defendants offered in evidence two depositions of one Russell, to prove that during the year 1828 he imported into New York certain bales of point and duffil blankets manufactured by Wood, which proved to be damaged, and, in the opinion of Russell, by being packed in a wet state for the purpose of increasing their weight.</p> <p>The defendants also offered the testimony of one Lee, who stated that in 1828, the firm of which he was a partner, received a consignment of point and duffil blankets from Wood, and also some which they purchased of Wood; that the blankets came in three different vessels, and were all damaged ; that the blankets in the inside of the bales were slightly damp and very much spotted, and the outside blankets were perfectly dry ; that the damage to the blankets exhibited as part of the Aspasia’s cargo, was of a similar character, and he would have supposed they were a part of his own ; that the damage was of a peculiar kind and not like that produced by salt water.</p> <p>There was evidence in the case tending to show that the damage was caused by sulphuric acid.</p> <p>To the admission of the depositions of Russell and of the testimony of Lee, the plaintiffs objected, on the ground that it was an attempt to prove that Wood had fraudulently damaged» the blankets in question, by proving that he had in other cases damaged blankets by packing them in a wet state to increase their weight; which the plaintiffs contended it was not competent for the defendants to do. But the judge overruled the objection and permitted the evidence to go to the jury.</p> <p>In regard to the principles upon which the jury were to proceed in assessing the damages, if they found for the plaintiffs, no evidence was adduced by the plaintiffs tending to designate the bales supposed to be damaged by perils of the seas, from those internally damaged in the manufacture, or tending to show how much the damage was by perils of the seas and how much by the manufacture, other than that there was evidence tending to show that several of the bales were much more wet externally than the rest of the thirty-two bales, and that one of them in particular was so wet that the water could be wiped off with the hand ; and in the argument of the plaintiff’s counsel, the attention of the jury was called to the particular situation of these bales, which was dwelt upon by him for the purpose of satisfying the jury that the damage complained of must have been a sea damage, and of raising the presumption that all the bales must have been damaged from the same cause : although the judge was not desired to instruct the jury particularly in relation thereto. But the defendants’ counsel, in his argument of the cause, distinctly stated to the jury the legal grounds upon which they must proceed in assessing the damages, namely, that they were to take the difference between the value of the sound and unsound article at New York, and allow the same proportion on the invoice price in England; and the counsel for the plaintiffs in his reply, conceded that the principle had been correctly stated by the defendants’ counsel in this particular ; and the cause was finally committed to the jury by the judge, without his attention being again called to that subject by either party. And the judge directed the jury generally, that unless the damage supposed to have accrued by the perils of the seas to the bales, exceeded five per cent, they must find for the defendants. The jury found a verdict for the defendants, and no inquiry was made or moved for by the plaintiffs’ counsel at the time, as to the principles upon .which the verdict was founded.</p> <p>The plaintiffs moved for a new trial; —</p> <p>1. Because the depositions of Russell and the testimony of Lee were admitted in evidence.</p> <p>2. Because of the foregoing erroneous instructions in matters of law.</p>

<p>On August 11, 1830, Caleb Hayward, the clerk of Faneuil Hall market, in the city of Boston, made a complaint to the Police Court, alleging that Nightingale, on that day, with a certain wagon, occupied a stand in South Market street without permission of Hayward, the clerk, &c. and for the purpose of vending in South Market street commodities not being the produce of his own farm or of some farm in his neighbourhood ; that Nightingale then was an inhabitant of the town of Quincy, which town is in the vicinity of Boston, and Nightingale being ordered by Hayward to remove forthwith from the street, did not so remove, but refused, against the peace, &c. and the form of the statute, &c. and the bylaw of the city. Nightingale was convicted in the Police Court, and he appealed to the Municipal Court of’ the city of -d Boston.</p> <p>At the trial in the Municipal Court the attorney for the commonwealth read to the jury the 1st and 8th sections of the city ordinance for the regulation of the market, passed November 13, 1826. The first section prescribes, “ that the limits of Faneuil Hall market shall be the lower floor of the building, &c. and the street on each side thereof, called North Market street and South Market street.” The 8th section provides, “ that no inhabitant of the city of Boston, or of any town in the vicinity thereof, not offering for sale the produce of his own farm, or of some farm in his neighbourhood, shall at any season of the year, without the permission of the clerk of Faneuil Hall market, be suffered to occupy any stand with cart, sleigh or otherwise, for the purpose of vending commodities in either of the streets mentioned in the first section of this ordinance ; and every such person, on being so ordered, shall remove from out of said streets.”</p> <p>It was testified, that Nightingale took a stand in South Market street on the 11th of August, at sunrise, with a wagon, and continued to occupy the same until 11 o’clock in the forenoon ; that he there sold the carcasses of sheep, which he had bought some months before at Brighton, and of lambs which he had bought the week before at Hingham, and divers other articles the produce of his own farm in Quincy ; that early in the morning, and again two or three hours afterwards, the clerk of the market ordered him to leave the street, (which was within the limits of the market, as defined in the ordinance,) but he refused ; that while he was coming to the city in the morning, he said he meant to try the law ; and that neither the city government, nor the clerk of the market had, established a rule as to what was to be regarded as the vicinity of Boston.</p> <p>The counsel for Nightingale insisted that the by-law was void, on the ground that it was partial and did not operate upon all the citizens of the commonwealth equally, and that it made a distinction between the inhabitants of Boston and its vicinity, and the inhabitants of distant towns in the commonwealth ; that it was void from its uncertainty, in not declaring what towns were to be comprehended within 1 the vicinity ” of Boston ; that it was defective, inasmuch as it left it to the discretion of the clerk of the market to require the removal of persons, whereas the by-law should have been-so expressed as that every citizen might determine for himself where to stand ; and that according to the testimony, Nightingale did not violate the by-law, inasmuch as a large portion, perhaps half in value, of the articles in his wagon were the produce of his own farm.</p> <p>The judge (Thacker) instructed' the jury, that the court was competent to try the case, notwithstanding it was to enforce a by-law of the city, to the breach of which a pecuniary penalty was annexed ; that the ordinance was a good and wholesome regulation, and binding on the citizens and on all persons who came to the market with their carts and wagons to offer produce for sale ; that it was not a restraint of trade ; that it belonged to the jury to settle from the evidence, whether the defendant was an inhabitant of a town in the vicinity of Boston) and whether he came to the market, offering for sale the produce of his own farm or of some farm in his neighbourhood ; that it was true he might have had some of the productions of his own farm, and yet if these were but a cover to screen him from the operation of the ordinance, and his intent was to sell produce, not of his own farm nor of any farm in his neighbourhood, the case would be within the mischief against which the ordinance was intended to guard.</p> <p>To these instructions the counsel for the defendant excepted.</p> <p>The jury having found the defendant guilty, he now petitioned this Court for a writ of certiorari to the Municipal Court.</p>

<p>Bill in equity, commenced in April 1829, by the executrix of Seth Johnson against the administrator, widow and heirs of Ezra Hyde.</p> <p>The bill sets out, that on October 21, 1809, it was agreed between Johnson and Hyde, that Johnson should advance to Hyde large sums of money, to be used in trade, which was to be carried on solely by and in the name of Hyde, and that Johnson should receive, besides the sums advanced, one half of the clear gains of the trade ; that in pursuance of the agreement Johnson did advance large sums, and thereby became a dormant partner of Hyde; that Hyde immediately entered into an extensive business in merchandise, which he carried on until a short period before his death, making from it great gains, during which period divers settlements took place ; that early in 1823 the copartnership was by mutual agreement dissolved ; that as Hyde had carried on the business in his own name alone, and was alone responsible for the debts, (which the plaintiff believes amounted at the time of the dissolution to $ 50,000 or $■ 60,000,) it was agreed that the property of the copartnership should for the time remain with Hyde ; that Hyde agreed that he would diligently collect the effects and apply them in payment of the outstanding debts, and would render an account of all his doings therein, and as soon as could conveniently be done, would pay over to Johnson the sum he had advanced, with his moiety of the profits ; that thereupon Hyde took under his charge the whole property, which, as the plaintiff believes, was sufficient to pay the debts and leave a surplus to repay Johnson’s advances and to divide as profits ; that before the debts were paid, Hyde died, leaving a widow and children ; that letters of administration on his estate were granted to Ames the defendant, and as it was impossible to distinguish the private property and debts of Hyde from those of the copartnership, and as the whole property was nominally Hyde’s, Ames took the whole property under his control ; that Hyde’s estate was represented to the judge of probate as apparently insolvent, whereupon commissioners of insolvency were appointed, and six months were allowed to creditors to present arid prove their claims ; that claims to the amount, as the plaintiff believes, of $ 40,000 or $ 50,000 were proved and allowed ; that Johnson presented his claim for the balance of his capital and his share of the profits, amounting to $¡ 3000, for allowance; that most of the creditors objected to its allowance, on the ground that their demands became due from Hyde while carrying on the trade, in which Johnson was a silent partner and consequently liable for the payment of the same demands, and that Johnson was not by law entitled to be paid, until their demands had been fully paid ; that upon that ground the commissioners made their report to the judge of probate, disallowing Johnson’s claim, and for the same reason Johnson acquiesced therein and did not give notice, witliin twenty days, of his intention to prosecute his claim at common law ; that thereupon, as the plaintiff believes, it was agreed and understood by Johnson, Ames, and all the parties interested in the estate, that in case the administrator should collect assets sufficient to pay the debts, and there should be any surplus, then Johnson, as being specifically interested in the property, would have a good claim in equity upon the same, to the amount of his interest in the capital stock and profits, as before stated, and the administrator, widow, heirs and next of kin to Hyde, to whom such surplus might come, would stand chargeable as trustees therefor ; that after the report of the commissioners and an order for the payment of the partnership debts, Ames received assets sufficient to pay their full amount and leave a considerable balance ; that Hyde had, at his death, divers parcels of real estate and certain personal property, which have not been required for the payment of his debts ; that all the real and personal estate which has come into the hands of Ames, subject to Hyde’s debts, and all which has or may come into the possession of the widow and heirs, have and will come charged with a trust in favor of the plaintiff, to the amount of Johnson’s interest in the copartnership property at the time of its dissolution. The prays for a discovery and relief. The defendant Ames pleads in bar, that after the death of</p> <p>Hyde, viz. on July 23, 1823, letters of administration were granted to Ames, and that he accepted the trust; that by St 1791, c. 28, it is enacted, that no administrator shall be held to answer to any suit, unless commenced within four years after his accepting that trust, provided he gives notice of his appointment in the manner prescribed by St. 1788, c 66, and that Ames gave such notice ; that if the laintiff, in her own right or as executrix, ever had any cause of action, as alleged, she did not commence any suit within fo years. And insisting on his plea, Ames admits that the intestate died possessed of certain leasehold estate, &c. but he avers that he accounted therefor at a probate court held on September 26, 1825, and he denies that other property has come to his hands which has not been inventoried and accounted for ; and he denies that any agreement was made by him to account with Johnson.</p> <p>The plea of the widow and heirs of Hyde sets out the grant of administration to Ames, the representation of insolvency, the report made on January 17, 1825, of claims allowed by the commissioners, the allowance of the administrator’s second account on February 7th 1825, without objection on the part of Johnson, the presentation of a third account on September 26, 1825, and the allowance of it after public notice, and the decree of the judge of probate, that the whole amount of claims allowed and interest should he paid, there appearing to be a balance more than sufficient for that purpose ; it further alleges, that by St. 1788, c. 66, where certain demands against the estate of any person deceased, arise by virtue of any agreement that could not be claimed until after the term of three years from the time of notice of the appointment of an administrator, the agreement not being in full force during that term, the claimant may have his remedy against those who inherit the estate, if such claim be made within one year from the time of its becoming due ; and it further alleges, that if the plaintiff or her testator, had any such claim, the same arose within one year from September 26, 1825, hut that neither of them gave notice of such claim, nor was a suit brought therefor.</p> <p>The administrator, widow and heirs severally plead the proceedings which took place in the administration of Hyde’s estate, and that Johnson did not within twenty days after the report of the commissioners, give notice in writing at the probate office, of his intention to have his claim determined at common law ; and they then plead the St. 1784, c. 2, barring the claim of a creditor under such circumstances, unless he shall find some other estate of the deceased, not inventoried or accounted for by the administrator ; and they deny that there is any not accounted for.</p> <p>In the defendants’ answer in support of their plea, they severally deny any agreement or understanding with the administrator, that after the payment of debts, Johnson should have a claim in equity to the surplus, or that the administrator, widow and next of kin would stand chargeable as trustees, &c; or that Johnson did expressly give notice to the administrator that such was his right, as alleged in the bill; and they deny that any estate has come to their knowledge, which has not been inventoried or accounted for.</p>

Debt for the penalty of a bond. The parties stated a case. In November 1826, the plaintiff sold to the defendant the ship Israel for $ 18,000, and executed the usual bill of sale The defendant paid no part of the consideration, but executed the bond on which this action is brought, dated November 17, 1826, in the penal sum of $ 36,000.

The petition sets forth, that the respondents brought an action of assumpsit against Gray and one Usher, formerly partners, in which the ad damnum was laid at $75 ; that the writ was returnable to the Court of Common Pleas at October term 1828 ; that at that term Usher was defaulted, but Gray appeared ; that the action was continued from term to term, until April term 1830, when Gray pleaded that he and Usher had, before the commencement of the suit, fully paid the sum…

<p>Where a deed of a parcel of land, after describing it by bounds and admeasurements in feet and inches, contained the words—“ or however otherwise the same is bounded or reputed to be bounded, being the mansion-house and land thereto belonging,” — it was held, that this sweeping clause did not enlarge the grant; although if these general words had stood alone, they would have carried the mansion-house and land belonging to it not embraced by the particular description.</p> <p>Where a deed of land de'scribes it as bounding on a road, but sets forth metes and bounds which plainly exclude the road, no part of the soil and freehold of the road passes by the grant.</p> <p>The lessee of an easement may disseise the lessor during the continuance of the term, by taking exclusive possession of the land against the will of the lessor. Thus, the lessee of an easement in a dock, may disseise the lessor by converting the dock into a wharf.</p> <p>A deed duly executed, acknowledged and recorded, is always admissible evidence to prove a grant, whether the grant is a valid grant or not.</p> <p>Where two persons claiming the same parcel of land, do not derive their titles from the same grantor, the last purchaser cannot object that the deed to the former was not on record at the time of the last purchase.</p> <p>Thus, where the demandant who claimed under an ancient deed not recorded, bad not been in the visible possession of the land for more than forty years, the same having been used as a highway during that period, and the tenant, upon the discontinuance of the way, purchased without notice of such deed, from a stranger to the demandant’s title, it was held, that such deed, which had been subsequently put upon record, was admissible evidence in support of the demandant’s title; though if the demandant and the tenant had derived their titles from the same grantor, the deed would not have availed the demandant.</p> <p>Where a grantor, for a consideration named, conveyed in fee a parcel of land, the grantee “yielding and paying thereout a quitrent for the same,” annually forever to the town of Boston; and likewise, “ for the consideration aforesaid,” quitclaimed all his right in a parcel of land adjoining the first; both of which parcels originally belonged to the town; it was held, that the quitrent had reference to the first parcel only, and that the payment of it by the grantee did.not estop him to allege a disseisin by him of the town, of the other parcel.</p> <p>Where a dock, of which the owner of an adjoining wharf claimed to be seised, was filled up by the town, and being so filled up, was used together with the wharf, ns a highway, and afterwards the whole was paved by the town, though it did not appear that the way had been laid out according to the statutes, it was held, that the acts of the town amounted to a disseisin of the dock, but that they were equivocal in respect to the wharf, and it was a question for the jury to determine whether such acts were done with intent to disseise.</p> <p>In ascertaining the value pursuant to the Betterment act, of land recovered in a real action, with and without the improvements made by the tenant, the land is to be estimated with all its privileges and appurtenances and subject to all its incum brances existing previously to the making of the improvements.— So that if the tenant, by erecting a building, extinguishes ao easement to which as owner oi other land he is entitled, the land in controversy is to be valued in the same man ner as if there had been no such extinguishment.</p> <p>Where a tenant holds land by a defective title and an easement in it by a valid title the easement is not extinguished by unity of possession. If in a writ of entry the tenant pleads the general issue, whereby he claims the fee, . but fails to support his plea, he is not thereby estopped from setting up a claim to an easement in the land.</p>

Assumpsit. The defendant was attached to answer to John Pattee and Sarah Pattee his wife, in a plea of the case, for that the defendant, on the 15th of December 1827, being indebted to Sarah Pattee, then sole, in the sum of $ 1000, for so much money before that time had and received to her use, in consideration thereof promised her, by the name of Sarah Beck, to pay her that sum on demand.

<p>Goods attached on mesne process were replevied and the plaintiff in replevin, after entering his action, became nonsuit; and in the mean time, judgment was recovered and execution was issued and returned unsatisfied in the original action. In an action upon the replevin bond it was held, that in assessing 'damages, interest should be cast on the valuation of the property in the writ of replevin, at the rate of six per cent from the time when the property was replevied until the issuing of the execution in the original action, and at the rate of twelve per cent, thereafter until the entering up judgment in the action upon the bond.</p> <p>Where the goods, when attached, were subject to duties, and the plaintiff in replev in paid the same, it was held that such interest should be cast only upon the difference between the amount so paid and the valuation in the writ of replevin.</p>

<p>Whether the outfits of a whaling ship would be protected by a policy on cargof queers.</p> <p>But the oil and other articles which are the ordinary products of the voyage and the procuring of which constitutes its direct object, are covered by such a policy.</p> <p>A policy e* on cargo, lost or not lost, on board of a ship now on a whaling voyage in the Pacific ocean, during her stay and until her return, beginning the adventure upon the said cargo as aforesaid,” relates back to the commencement of the voyage, so as to cover a loss which happened at any time anterior to the date of the policy and after any oil was taken in.</p> <p>Where a ship is insured for a voyage, it is the duty of the owner to keep her seaworthy during the voyage, if it is in his power, and if she is rendered otherwise by damage or loss in her hull, sails, equipments, or crew, he is bound to repair or supply the damage or loss as soon as he conveniently can 5 and if he neglects to do so, and in consequence a loss ensues, the underwriter will not be liable for it 5 but for a loss ensuing which is in no way attributable to such neglect, it seems the underwriter will be responsible.</p> <p>Where a vessel insured sails apparently in a seaworthy condition, and is never afterwards heard from, the law presumes that the loss was occasioned by a peril insured against. But where it is proved that the vessel was lost by springing a leak and foundering in moderate weather, the presumption is that the loss arose from weakness and internal defect, and the burden of proof is upon the assured, to show that it arose from some extraordinary injury coming under the denomination of a peril of the sea.</p>

<p>Where a party obtains a new trial upon payment of costs, and upon the new trial the other party again prevails, the costs so paid, are not again to be taxed by the prevailing party 5 unless there was a special order of the court to that effect at the time of granting the new trial.</p>

<p>In an action for a libel, the defendant pleaded the general issue and two pleas in justification. The case stood in order for trial on the 15th of February, and the next day, after the trial was begun, it was referred under a rule of court. The arbitrators awarded that the defendant should pay the costs of court and half the costs of the reference.</p>

<p>This was a writ of error brought to reverse a judgment of the Court of Common Pleas. The action was commenced before a justice of the peace, by whom judgment was rendered for Burt, the original plaintiff, for double damages. Fair-field appealed to the Common Pleas and was there defaulted, and judgment was entered for the sum found by the justice of the peace, with costs.</p> <p>The original plaintiff declared in trespass, 1. for that Fairfisld, with force and arms, with certain dogs of him the said Fairfield, worried, injured, and by the biting of said dogs, killed certain sheep, the property of the plaintiff, to wit, &c. against the peace of the commonwealth, and to the damage of the plaintiff, twenty dollars. 2. For that Fairfield, with force and arms, with a certain dog accustomed to bite sheep, which dog Fairfield knowingly owned and kept, three ewes, &c. the property of the plaintiff, &c. chased, worried, wounded, injured, and by the biting of said dog, &c. killed, &c. against the peace, &c. and against the statute in such case provided. 3. For that Fairfield, with force and arms, with certain dogs, which dogs were accustomed to injure, worry, bite and destroy sheep, of all which he was well knowing, which said dogs he owned and kept, three ewes, &c. the property of the plaintiff, &c. chased, worried, injured, wounded and rendered of little value, by reason of the biting of the dogs aforesaid, against the peace, &c. and against the statute, &c.</p>

<p>This was an appeal from the decree of the judge of probate, allowing an account of Ebenezer Gates and Candace his wife, she being the executrix of the last will of Zephaniah Davison, her former husband, and the appellants being devisees.</p> <p>The second clause of the will is as follows : —<61 give and bequeath to my wife Candace, a tract of land, &c., containing about twenty acres, together with the house, barn and other buildings thereon standing and being, reserving however to my mother Susannah Davison the privileges, rights and immunities which she has heretofore enjoyed to, in, with and from said house and buildings, during the term of her life to all intents and purposes. I also in- like manner give and bequeath to my said wife all my personal property, to the intent that she may be enabled to pay all my debts ; and I hereby will and ordain that she procure three decent sets of tombstones with suitable inscriptions to perpetuate the memory of my deceased father, my mother and myself. All the before mentioned premises my said wife is to have, use, occupy and enjoy during the term of her natural life, and at her decease I devise and bequeath that all and every part and parcel thereof, both real and personal, of the before mentioned premises, do revert and enure to my brothers and sisters, to wit,” &c.</p> <p>The third clause is : — “Relative to my pother Susannah Davison, I will, devise and bequeath that she retain the usual privileges of the house as she has before enjoyed, and that she be comfortably clothed and fed, maintained and supported, in sickness and health, out of the before bequeathed and devised premises to my said wife Candace during the term of her natural life, and her funeral obsequies performed at her death.”</p> <p>In the fourth, fifth and sixth clauses certain other real estate is devised to his father-in-law, two of his brothers and an adopted son.</p> <p>The seventh clause is : — “I will, devise and bequeath that the residue of my real estate, being about sixty acres of land, be committed to the care, management and disposal of my said wife (if necessary) for the maintenance and support of my said mother Susannah Davison, during the term of her life and the procuring the tombstones before mentioned, and at the decease of my said mother, the sixty acres of land to revert and become a fee simple in the hands of my said brothers and sisters, to them and their heirs and assigns, on an equal distribution between them, excepting ” &c.</p> <p>At a probate court held in 1830, the appellees presented an account, in which they pray an allowance of charges as payment by them of a legacy to Susannah Davison, viz.</p> <p>To supporting and maintaining said Susannah from September 3, 1808, to December 3, 1826, 18 years and 3 months, at $ 1‘50 per week . $ 1423-50</p> <p>Brought forward . . . 1423-50</p> <p>To funeral charges and grave-stones for said Susan-nah, and incidental expenses . . . 40-50</p> <p>1464-00</p> <p>Contra.</p> <p>By use of real estate given by will, viz. 60 acre lot,</p> <p>18 years at $ 18 per year . . . 324-00</p> <p>$1140-00</p> <p>The judge allowed the credit to the estate, as contained in the account, and of the charges he allowed $ 988:50, leaving a balance due to the accountants, of $664-50. ^</p> <p>An appeal from this decree was claimed, for the following reasons : —</p> <p>1. Because nothing but the income of certain real estate was devised for the use and benefit of Susannah Davison, and that only for her life, and the appellees were not authorized or required by the will to pay over to her any thing but the annual income, and that only during her life, the whole of the real estate devised for her life being devised in remainder to the appellants and others, from and after her death.</p> <p>2. Because the rents and income of the real estate which was devised for the support of Susannah Davison, and which rents and income the appellees received from the death of the testator to the death of Susannah, a period of about twenty years, and which were more than enough to support Susannah, have not been credited to the estate of the testator, but only a small part of the same has been accounted for by the appellees.</p>

<p>A testator bequeathed to the plaintiff the use of $ 300 during her natural life 3 and after divers legacies to other persons, he gives as follows; — In addition to the foregoing bequest made to the plaintiff, I give and bequeath to her a kandaome support during her natural life, to be furnished by my executors, and the expenses thereof to be paid out of my estate by my said executors. In an action for the legacy given in this last clause, it was held; —</p> <p>That parol evidence of the declarations of the testator, showing his intention that this clause should take effect only in case the plaintiff's other resources should be insufficient for her support, was inadmissible :—</p> <p>That independently of extrinsic evidence the plaintiff was entitled to a reasonable support under this clause, notwithstanding she might have the ability to support herself by other means:—</p> <p>And that she was not bound to go into the family of one of the executors to receive lodging and subsistence, but was entitled to the support in whatever place she might choose to reside.</p>

<p>Assumpsit to recover the wages of the plaintiff as a teacher of the southern district school in Great Barrington.</p> <p>By the agreement of the parties, the following facts were to be admitted, as proved on the trial in the Court of Common Pleas.</p> <p>At a town meeting of the inhabitants of Great Barrington on March 16, 1829, the town voted to raise the sum of $ 800 for the support of schools for the then current year, to be apportioned among the school districts of the town, and to be drawn from the treasury by orders in favor of the person who in any district should hire the teacher for such district. They also voted to choose one man in each school district to be the prudential committee of the district, unless the district should choose a committee for themselves, which by the vote they were authorized to do. In pursuance of this vote, the town chose Morris B. Wilcox as committee for the southern district ; and the inhabitants of this district afterwards chose Wilcox as their committee to hire a teacher for the district. At the town meeting above mentioned, Wilcox made a contract with the plaintiff to keep the southern district school for the term of four months, at ten dollars a month. The plaintiff kept the school accordingly for four months ending on February 20, 1830, and the sum of $40 was due for his wages at the time when this action was commenced. The plaintiff had been duly examined and recommended as a teacher, by the school committee of the town. Previously to the close of the school kept by the plaintiff, the town had collect ed the money voted to be raised for the support of schools, and the portion of it belonging to the southern district had been paid over to Wilcox, on an order drawn in his favor on the treasurer, for that purpose, and was in his hands when this suit was commenced. The plaintiff was under twenty-one years of age when his school closed, and a writ in favor of one Taylor against the plaintiff’s father and against Wilcox as trustee of the father, was served on Wilcox previously to the service of the writ in the present action.</p> <p>The counsel for the defendants insisted, that by St. 1826, c. 143, § 17, a school district is made a corporation, and as such, is made liable for the wages due to a teacher, on a contract between him and the prudential committee of the district. The counsel likewise insisted, that since the passing of that statute, towns in their corporate capacity have not been hable upon such a contract, they having performed their whole duty when they have raised, collected and paid over to the committees of the several districts the full amount of money which the law required the town to raise.</p> <p>But Strong J. instructed the jury, that the inhabitants of the town of Great Barrington were liable in this action for the amount of the plaintiff’s wages, notwithstanding they had raised and collected the money to the amount of the wages and had paid it over before the commencement of the action and before a demand of the wages, to Wilcox, the committee of the district, who, and who only as such committee, had made the contract with the plaintiff.</p> <p>The jury returned a verdict for the plaintiff, and the defendants excepted to the foregoing instruction of the judge.</p>

<p>Petition for a certiorari to a justice of the peace, by whom the petitioner had been fined for neglecting to perform military duty in a company of light infantry, in September 1830, at Great Barrington.</p> <p>At the trial before the magistrate, it was admitted that F. H. Bartholomew, the complainant, was the clerk of the company. It was proved that Dewey the petitioner had enlisted into the company; that he was more than eighteen and less than twenty-one years of age at the time of enlisting and at the time of the trial ; that he enlisted without the knowledge or consent of his father, in whose family he then and had ever since resided ; and that his father, on learning that he had enlisted, objected to his doing duty in the company, refused to furnish him with a uniform, and directed him to do duty in the standing company in Great Barrington, which he had ever since done. It was admitted that the clerk of the light infantry company, was under the age of twenty-one years at the time of filing the complaint.</p> <p>The petitioner prayed for a certiorari for the following reasons : —</p> <p>Because, at the time when he enlisted he was, and now is, a minor, and has no property to enable him to equip himself for the performance of duty in the light infantry company.</p> <p>Because he enlisted without the knowledge and against the will of his father, though he then was and ever since has been a member of his father’s family.</p> <p>Because his father has ever refused to arm, equip and provide a uniform for him as a member of the light infantry company, and will not permit him to do duty therein.</p> <p>Because Bartholomew, the clerk of the light infantry company, who has prosecuted the petitioner for the fine, is a minor.</p>

<p>A petition was presented to the county commissioners, signed by M. Griffin, M. C. Chamberlin, L. Atwood, Philip Merrill, J. C. Chase and Hosea Merrill, reciting that certain alterations have been made by the commissioners in the highway from Pittsfield to Dalton, where it passes the land of the petitioners, and praying that a jury may be granted, to make such alterations in the location of the highway as to them may seem meet, and also to increase the allowance made by the commissioners for the damages severally sustained by the petitioners.</p> <p>Upon this petition a warrant was issued, and a jury was summoned and empannelled by John Pomeroy, a deputy sheriff, who was an inhabitant of Pittsfield.</p> <p>Chase, one of the petitioners, is a tenant in common with A. F. Merriman of a portion of the land over which the road was located by the commissioners, and Merriman, at the time of the location of the road, desired the same, and agreed verbally with the commissioners, for himself and Chase, as to the amount of their damages.</p> <p>At the hearing before the jury, Hosea Merrill was called by the attorney for the county as a witness to one fact only, and that in reference to the removal of a barn on the land of Merriman and Chase, and after he had been examined by the attorney for the county upon this point, the attorney for the petitioners insisted that he might lawfully examine the witness in reference to the witness’s damages and all other matters before the jury, on the ground that the witness was not only a petitioner for increase of his own damages but also for the alteration of the location, and the questions put to him by the attorney for the petitioners were intended to refer to and operate upon the question of change of location of the whole road.</p> <p>To this the attorney for the county objected, but the objection was overruled by the jury, and the testimony of the witness admitted in reference to his own damages and those of the other petitioners.</p> <p>The jury, by their verdict, determine that the public good does not require the alteration made by the commissioners, and they alter the location as follows, to wit, “ beginning against the west gate-post near Chase and Merriman’s house in the centre of the now travelled path, thence east 21 degrees north, 52 rods, thence east 12 degrees north, 55 rods, thence east 14 degrees south, 118 rods, to the east line of Martin Chamberlin’s land ; the above survey is made through the cen tre of the road and is to be four rods wide.”</p> <p>The road as laid out by the jury, was. intended to be laid out over the old road, but in some places small deviations were made, going across corners of land belonging to the petitioners. The jury did not allow damages to any of the petitioners.</p> <p>The alterations made by the commissioners extended over land of Z. Crane about 22 rods, but the location by the jury extended only to the east line of Chamberlin’s land, (which lies west of Crane’s,) without referencé to that portion of the road located across Crane’s land, and without meeting the same.</p> <p>To the acceptance of this verdict the counsel for the county made the following objections : —</p> <p>1. That Pomeroy, the officer who summoned the jury, being an inhabitant of Pittsfield, was interested in the proceedings.</p> <p>The fact that Pomeroy was an inhabitant of Pittsfield and interested, was known to the counsel for the county before the jury were empannelled, and it was agreed by the attorney for the petitioners and. by L. Washburn, chairman of the commissioners, that Pomeroy should be the officer, before the warrant was delivered to him.</p> <p>2. That the testimony of Merrill in reference to his own damages and the damages of the other petitioners, and for the purpose stated by the attorney for the petitioners, was improperly admitted.</p> <p>3. That Chase was bound by the act of his co-tenant and could not of right petition for a jury.</p> <p>4. That the verdict was void, 1. for its uncertainty as to the new location ; — 2. because it is inconsistent with the situation of the old road and the new one located by the commissioners ; and 3. because the verdict does not mention the owners of the land over which the road passes.</p> <p>5. That the jury had no lawful authority to alter the location in the manner they have done and upon this petition.</p> <p>6. That Crane and Merriman did not join in the petition.</p> <p>7. That the jury had no lawful authority to discontinue the road laid out by the commissioners, or to do'that which would operate as a discontinuance of the same.</p> <p>8. That the course of the road laid out by the jury, is inconsistent with the alterations prayed for, and it does not terminate in or with the road laid out by the commissioners.</p> <p>These objections were overruled by the Court of Common Pleas and the verdict affirmed ; and to this opinion and decision of the court the counsel for the county excepted.</p>

<p>The defendant was indicted capitally at the last term of this Court, for rape, and that being a nisi prius term, the case stood over for trial at the present term, before a full court, as required by law.</p> <p>It appeared that the principal witness, the party aggrieved, was the sister of the accused; that, being a minor, she had recognised for her appearance at this term as a witness, with her father as surety. Being called upon their recognisances, both the witness and her surety made default, and upon evidence offered, it appeared that she had absented herself a few days before the sitting of the Court, had gone 'out of the jurisdiction of the state, and could not now be found. Some evidence was offered tending to show, that this was done with the knowledge and connivance of the prisoner, but the evidence was not very full upon that point.</p>

<p>if in a deed of sale with covenants, the sale appears on the face of the deed to be void, the covenants which are relative and dependent are void, but not those which are collateral and independent.</p> <p>Thus, where an officer sold on execution an equity of. redemption, and in his deed to the purchaser covenanted that he had obeyed all the directions of law relative to such sales, it was held, that even if the grant was void on the furs of the r deed, this covenant was binding, it being collateral to the grant.</p> <p>Held, also, that the purchaser had a right to rely for his security on such express covenant, although by a recital in the deed it appeared that the grantor's proceedings in such sale had not been regular.</p> <p>Where such grantor covenanted that he had obeyed all the directions of law relative to such sates, but afterwards neglected to return the execution, it was held, that the covenant was broken.</p> <p>The measure of damages in an action of covenant for such breach, is the sum pata by the purchaser for the equity of redemption, and interest thereon.</p> <p>Where therefore the debtor against whom the execution was issued, was insolvent, and the purchaser bid at the auction a much larger sum than the equity of redemption was worth, and part of the sum so bid was paid in satisfaction of the execution, and the residue was applied towards the satisfaction of another execution in favor of the purchaser himself against the debtor, it was held, that the sum bid, (and which was the consideration stated in the deed,) with interest thereon, was not the measure of damages, but that the value of the equity of redemption, to be determined by a jury, with interest thereon, was the measure of damages.</p> <p>The land, of which the equity of redemption was thus sold and conveyed, was under a second mortgage made as collateral security for a note payable in labor upon materials to be furnished within a limited time by the mortgagee, but such materials were not furnished until after the time had expired ; and it was held, that the mortgager might waive the agreement as to the time, and that in estimating the value of the equity of redemption as a measure of damages for the breach of the covenant, the jury had a right to consider whether there had been such a waiver.</p>

<p>Writ of entry. The demandants counted upon the seisin of their father, William Wade. Plea, non disseisivit. Trial before Wilde J.</p> <p>To maintain the issue on their part, the demandants offered in evidence a deed of mortgage, dated April 29, 1819, from Thomas Fry and Nathaniel Fry to John Gould, to secure the payment of $ 1500, — and an assignment of the mortgage to Justice Willard, dated February 8, 1825,—and a deed from Willard to Wade, the demandants’ father, dated February 26, 1827, by which deed Willard, in consideration of $ 527T0, did “ remise, release, grant, bargain, sell and forever quitclaim ” to Wade, all Willard’s “ right, title, interest and estate of, in and to ” the demanded premise^ “ being the same land which was mortgaged to John Gould &c. and assigned bj said Gould to me on the 8th day of February A. D. 1825, together with the evidences of the sum remaining due on said mortgage; meaning hereby to release all the right I have in the premises by virtue of said mortgage and assignment, the aforesaid sum having been this day paid me in discharge of said mortgage.’’ It was proved that Gould had entered on the demanded premises for condition broken, and that the right to redeem would have been foreclosed on February 27, 1827.</p> <p>The tenants offered in evidence a deed of Nathaniel Fry to Thomas Fry, dated March 12, 1821, of his interest in the demanded premises, — a mortgage from Thomas to Nathaniel of the same date, to secure $ 1000, according to his promissory note — an assignment from Nathaniel, of the note and mortgage, to Joseph and Elijah Bissell, — and an assignment from them to the tenants. They also offered to prove, that Wade was the purchaser of the equity of redemption of this land, but it was finally admitted that the purchase was void, Wade having brought a bill in equity to redeem, which was dismissed on an objection taken by the tenants to his title to the equity of redemption.</p> <p>It was proved by parol evidence, that Wade paid to Willard the amount due on the mortgage of T. and N. Fry, at the time of the execution of Willard’s deed, and that he paid it with intent to save his rights ; that he wanted Willard to assign the mortgage and moneys and evidences of the debt due thereon; that Howard objected, and Willard intended that his deed should not operate as an assignment, but as a discharge of the first mortgage, thereby to save the rights of the tenants under the second mortgage ; that the evidences of the debt were delivered by Willard to G. Bliss junior, the attorney of Wade, Willard intending that the delivery of them should be considered as of notes delivered up on payment, and Bliss claiming to hold them and the deed as legally assigned to Wade. Bliss prepared a release and assignment in apt words to carry Wade’s object into effect, but Willard refused to execute it. Willard then turned to St. 1798, c. 77, relating to the redemption of mortgages, and said he would give such a deed as Wade under the circumstances was entitled to have, and he wrote and delivered as such a d;ed, the one above mentioned. Bliss objected to the clause, in which it is said that the money had been paid in discharge of the mortgage, but Willard refused to strike it out. Bliss said he would take the deed, but as an assignment of the mortgage; Willard, resisting, delivered it as a discharge.</p> <p>The demandants objected to all the evidence offered by the tenants.</p> <p>A verdict was taken for the tenants, but if the Court should be of opinion that the demandants were entitled to maintain the action, the verdict was to be set aside and the tenants to be defaulted.</p> <p>The cause was argued in writing.</p>

<p>A debtor assigned goods by deed poll, in trust to pay certain creditors named, in full, and other creditors who should in writing express their assent to the assignment, pro raid, and the goods were forthwith delivered to the assignee \ but before the assignee, who was himself a creditor, or any other creditor, had in writing assented to the assignment, the assignee was summoned, in a process of foreign attachment, as the trustee of the assignor. Held, that the assignee had no right to retain the goods in order to satisfy his own demand or that of any other creditor, and that he was chargeable as trustee.</p>

Writ of right to recover a lot of land on Hampton Plain, in Westfield, containing eighty acres. Trial before Wilde J. The demandants proved that the lot in controversy was originally laid out to Stephen Kellogg in 1734. From the records of the town it appeared, that there was a Stephen Kellogg, who was married in 1719, and had six children, one of whom was named Stephen.

<p>Trover, to recover the value of a promissory note, pledged by the plaintiff to the defendant. The suit was brought on the ground that the plaintiff was in a state of insanity at the time when he made the pledge. At the trial in the Common Pleas, before Williams J., the counsel for the defendant requested the judge to instruct the jury, that although they should believe the plaintiff was insane and incapable of understanding at the time of making the contract, yet that if the defendant was not apprized of that fact, or had no reason, from the conduct of the plaintiff or from any other source, to suspect it, and did not overreach or impose upon the plaintiff, or practise any fraud or unfairness, then the contract was not to be annulled. But the judge held this not to be law, and instructed the jury otherwise ; and the jury returned a verdict for the plaintiff. To this opinion the defendant excepted.</p>

<p>Assumpsit. Plea, the general issue. At the trial before Wilde J., the plaintiff claimed to recover of the defendant for money paid for him for certain goods, which he alleged the defendant had received on his responsibility at the store of Samuel Gray. The defendant denied that the goods were furnished by the plaintiff for the defendant, and alleged that they were delivered at Gray’s store by the plaintiff and Luke Watson for the benefit and account of one William Duncan. The defendant further contended, that if the goods were sold to him and not to William Duncan, yet the defendant was liable not to the plaintiff alone, but to the plaintiff and Watson. The plaintiff offered in evidence the deposition of Gray containing the following statement. “ About the 14th of June 1822, two men came to my store together with Horace Allen. Allen remarked to me, here is a Mr. Duncan, who wants dye stuffs. The Christian name of Duncan, according to my impression, was Horace. Allen said he would be responsible, or that toe (by which I understood Horace Allen and Luke Watson, who I knew were connected in business) would De responsible, and the goods I then sold to Duncan I charged to Allen and Watson. The same Mr. Duncan who came into the store with Allen, selected the goods and took them from the store. Afterwards, September 9, 1823, in a general settlement of accounts between Allen and myself, Allen paid to me ^le bill of goods purchased as aforesaid by Duncan, amounting to $ 142-42. Watson personally gave me no authority to charge the goods to him and Allen.” Then followed these words, which were objected to by the defendant, as improper evidence to go to the jury, — “ and three or four months after they were so charged, Allen informed me that Watson had nothing to do with the matter,” — but the judge overruled the objection and permitted them to go to the jury. The concluding part of the following sentence was objected to by the defendant, but was admitted. “ Allen was not present when the above-mentioned goods were charged to him and Watson, nor do I know that he knew in what manner they were charged until payment was due, and I spoke to him about it, and it is my impression that was the time when he informed me that Watson had nothing to do with the matter.'1'’ Other evidence was introduced by both parties, and the case was submitted to the jury with instructions from the judge, that if they found the goods were purchased by William Duncan, or were purchased on the responsibility of Allen and Watson, their verdict should be for the defendant, but otherwise for the plaintiff. They found a verdict for the plaintiff. If the testimony objected to was improperly admitted, a new trial was to be granted.</p>

<p>This was a petition for partition, filed by Aaron Colton and Hazael Phillips, in which they represent that they are seised and possessed of one moiety of seventy-two acres of land lying in common and undivided with land of Reuben Smith and Gideon Phillips.</p> <p>Gideon Phillips was defaulted ; and the following facts appear from a statement agreed upon by the petitioners and the other respondent.</p> <p>At the Court of Common Pleas, August term 1829, these same petitioners presented their petition against Reuben Smith, for partition of three undivided fifth parts of sixty acres of land, being all of the premises described in the present petition, except twelve acres conveyed to Gideon Phillips as hereafter stated. At the November term of that court, the following facts were agreed and the following proceedings had.—In 1826, Quartus Smith, being seised of three undivided sixth parts of the seventy-two acres, mortgaged his share to Aaron Colton and Henry Phelon, and in January 1829, Phelon assigned his interest in the mortgage to Hazael Phillips. In November 1827, Reuben Smith, being seised of two other undivided sixth parts and Gideon Phillips, of the remaining sixth part, Reuben and Quartus executed a deed of release to Gideon of all their interest in twelve, acres of the land, and Gideon executed a like deed of release to them of all his interest in the remaining sixty acres. At the Cour< of Common Pleas, November term 1828, Reuben preferred his petition for partition of the sixty acres ; and Quartus, then being in possession of the same, appeared in court and consented that partition should be made. Partition was thereupon ordered to be made, and commissioners were appointed by the court for that purpose. The commissioners made a division, which was returned and accepted by the court at March term 1829, and although the present petitioners entered an appearance upon the docket and requested- to be heard at the return of the commission, yet they were denied a hearing, as not being parties, not having been named in the petition. Reuben Smith, since the acceptance of the division, has possessed the portion set out to him by the commissioners.</p> <p>On May 14, 1829, Quartus Smith certified on the back of the mortgage deed, that he had on that day given possession of the mortgaged premises to the present petitioners, for the purpose of foreclosing the mortgage ; and these petitioners immediately thereafterwards entered upon that part of the sixty acres which was not set off to Reuben Smith, and occupied the same. About the time of their entry upon the land, they gave notice to Reuben Smith that a petition would be presented for a new division. If the Court of Common Pleas should be of opinion that the petitioners were entitled to partition, judgment was to be rendered that partition should be made ; but otherwise they were to take nothing by their petition ; the parties, in either case, reserving the right of appeal. The Court of Common Pleas rendered judgment for the respondents, and from that judgment neither of the parties appealed.</p> <p>In the present case the parties agreed that the facts above stated were correct, and the following additional facts were admitted.</p> <p>Reuben Smith has held and occupied in severalty, up to the time of the service of this petition, that part of the land which was set off to him in his partition suit against Quartus ;</p> <p>Gideon Phillips entered and has occupied in severalty the part released to him by Reuben and Quartus Smith, from the time of the execution of the deed of release ; and the petitioners have occupied the residue of the seventy-two acres ever since the date of Quartus’s certificate. On March 19, 1830, Quartus released to the petitioners his right to redeem the land mortgaged by him to Colton and Phelon. The petitioners took possession on May 14, 1829, for the purpose of foreclosing the mortgage, and immediately afterwards notice was given to Reuben Smith, that possession under the mortgage was taken, and that a. petition would be presented for a new division. No act was done by the petitioners at the time of taking possession, or since, to turn Reuben Smith or Gideon Phillips out of the actual occupation of the parts they respectively possessed at that time. It was agreed that the judgments above mentioned should have the same effect as if specially pleaded by way of estoppel or in any other way.</p>

<p>Where the parties agree that a nonsuit or default shall be entered, according to the decision of the Court on a question of law raised upon a given state of facts, it seems that any point of form in the pleadings is waived, unless expressly re* served.</p> <p>Assumpsit for money had ana received may oe maintained by the indorsee of a promissory note against any previous party to the note.</p> <p>The indorser of a promissory note who pays the amount of it and takes it up, may maintain an action upon it as indorsee against a prior indorser, without proving that notice of its dishonor was given to himself or that he paid the amount of it under a legal liability.</p>

<p>The circumstance that a county commissioner is a taxable inhabitant of a town through which a contemplated road is to pass, does not constitute such an interest as will disqualify him to act as a county commissioner in the proceedings relative to laying out and making the road.</p> <p>The circumstance that a son and a brother of a county commissioner have joined with others in a petition that a road may be laid out, does not disqualify him to act on the question of common convenience and necessity of the road, it not appearing that the son or brother has any other than a public interest in the subject of the petition.</p> <p>Whether evidence aliunde can be received upon the return of a certiorari, to show errors or irregularities not apparent upon the record, quaere.</p>

<p>Where the defendant-pleads the statute of limitations in bar to the whole of a bill in equity, he must, in his answer in support of the plea, answer all the charges in the bill which may avoid the bar oy showing a new promise; but he is not bound to answer to the original cause of action.</p> <p>Upon a bill in equity by one partner against his co-partners for an account, the answer of one of the defendants will not be evidence to charge another.</p> <p>But if it appears that the defendants as constituting a partnership among themselves, of the one part, were in partnership with the plaintiff, of the other part, the answer of one of the defendants would be evidence to charge the others.</p>

<p>To an action on a promissory note, the defendants plead a release by the plaintiffs puis darrein continuance, with a proferí.</p> <p>The plaintiffs pray oyer, and the instrument being set out, k appears to be under seal, executed by Rixford, Skinner and Eairoanks, the plaintiffs, purporting to be a release of all demands, and' especially of the note sued, describing it as “ a note now in suit in our names, but not authorized by us.” The replication then alleges a previous assignment of the note from the original promisees, through several mesne conveyances, for a valuable consideration, to Dorus Bascom, who thereby became possessed of the same as of his own property, with full right and power to control, sue for, recover and dispose of the same for his own benefit; and so the plaintiffs say that this action is prosecuted for the use and benefit of Bascom, that the nominal plaintiffs have no interest in it, but executed and delivered the supposed release in collusion with the defendants, and in fraud of the rights of Bascom ; of all which matters the defendants, prior to the execution of the release, had notice.</p> <p>The defendants rejoin, that the release was not executed and delivered by the nominal plaintiffs in collusion with the defendants and in fraud of the rights of Bascom, and tender an issue to the country.</p> <p>The plaintiffs demur, and assign the following causes ; —</p> <p>1. Because the issue tendered is immaterial: —</p> <p>2. Because the rejoinder only traverses matter introduced as an inference from the facts previously alleged : —</p> <p>3. Because the traverse is taken upon matter of law, the allegation of fraud and collusion being made in the declaration merely as an inference of law : —</p> <p>4. Because the rejoinder does not traverse any of the assignments stated in the replication, nor the allegation that the nominal plaintiffs were in nowise interested in the note or suit, but only that they fraudulently and collusively executed the release.</p>

<p>Writ of entry. The case came before the Court upon a statement of facts.</p> <p>In April 1829, the tenant sued out a writ against Benjamin Ruggles, upon which the officer who served it made a return, dated April 27, 1829, as follows : — “ By virtue of this writ I have attached all the right, title and interest, which the within named Ruggles has to his homestead on which he now dwells, together with all the land thereto belonging, lying in Enfield, in said county. Also all the right and interest which said Ruggles has to any lands lying in Enfield aforesaid,” &c.</p> <p>In May 1829, the demandant sued out a writ against Ruggle.s, upon which the officer who served it made, a return, dated May 16, 1829, as follows : — “At the direction of the creditor, by -virtue of this writ, I attached all the right, title and interest that the within named Benjamin Ruggles has in the farm he now lives on. Also about twenty-five acres of land adjoining land of Charles Gardner, all situated in Enfield in the county of Hampshire. Also two pews,” &c.</p> <p>The tenant and the demandant afterwards recovered judgment against Ruggles, and their respective executions were duly levied on the demanded premises, the demandant’s, on December 19, 1829, and the tenant’s, on January 4, 1830, and were duly recorded and returned. The tenant is now in possession, claiming to hold under the levy of his execution.</p> <p>The demanded premises, at the time of the attachments above mentioned, were the property of Ruggles, and were a part, of the lot of twenty-five acres described in the return on the demandant’s writ against him ; the same having been devised some years since to Ruggles by his father, together with other lands upon which Ruggles lived at the time when the attachments were made. The 25 acre lot was separated from the other lands by a highway and other farms intervening, and is situated more than half a mile therefrom. The other land? are divided by a road, and there are two houses thereon, one on each side of the road. Ruggles occupied one house and all the land on both sides of the road, with the exception of a small parcel on which the other house stood, in the occupation of a tenant. The 25 acre lot consists of pasture and woodland, and until the levy of the executions above mentioned, was occupied by Ruggles, and had been previously occupied by his father.</p> <p>If the demandant was entitled to recover:, the tenant was to be defaulted ; otherwise, the demandant was to become non-suit.</p> <p>The cause was argued in writing.</p>

At April term 1831 of this Court, in the county of Franklin, the defendants were indicted for a misdemeanor in disin terring a dead body on the 20th of February of the same year, contra formam statuti.

<p>A sale of a chattel, without a delivery, gives the vendee a constructive possession sufficient to maintain trespass against a person who takes the chattel without right.</p> <p>Thus, where the owner of a chattel sold it to the plaintiff on Saturday night, and the plaintiff used'due diligence to obtain possession of it on Sunday, but a creditor of the owner took it on that day and secreted it and caused it to be attached on Monday on a writ against the debtor, it was held that the plaintiff might maintain trespass against such creditor and against the attaching officer.</p>

<p>The commanding officer of a company of militia has no personal interest, either as an officer or as a member of the company, in the money collected of the members for fines; he is therefore a competent witness in a prosecution for a fine.</p> <p>The authority of the commanding officer of a regiment or battalion in the militia, to grant warrants to sergeants appointed by the captain of a company, is a personal duty or trust, and cannot be transferred to another by a previous general delegation of authority; and unless therefore a person appointed a sergeant by the cap-, tain, has a warrant acted upon by the commanding officer of the regiment or battalion and signed by him, or by some one by his specific direction, he cannot be duly appointed and qualified to act as clerk of the company.</p>

<p>This was an action of indebitatus assumpsit. A bill oi particulars and an account in set-off were filed. The Court of Common Pleas appointed auditors to state an account between the parties, and the auditors made a report. At April term 1831, of this Court, the case was recommitted to the same auditors, who made a further report. At the trial at September term 1831, before Putnam J., the defendant objected to the report so ffir as it related to the testimony of one Thayer, which is set forth in the report, and he offered Thayer as a witness to the jury; but the judge refused to admit the witness. The defendant was then defaulted by con sent, subject to the opinion of the whole Court upon this point. If the decision was incorrect, the default was to be taken off and such further disposition made of the case as the Court might order.</p>

<p>tn trespass for taking horses claimed by the plaintiff under a sale alleged by the defendant to be fraudulent as against creditors of the vendor, the plaintiff offered evidence to show, that after the sale he directed the vendor to take the horses to an inn and get them kept at the plaintiff’s expense, and that on the next day he himself told the innkeeper that he owned the horses by virtue of a bill of sale and would pay for their keeping. It was held, that these declarations of the plaintiff were admissible as part of the res gestee.</p> <p>In an action of trespass against an officer, by whom goods claimed by the plaintiff were attached on several writs sued out by creditors of another person and were at their request sold on mesne process, one of the creditors who has discontinued his suit is not a competent witness on behalf of the officer, to prove that the goods were the pioperty of the debtor and not of the plaintiff 3 for in case the officer succeeds in his defence, the expenses of the sale will be a charge against the fund in his hands, but if he fails, they will be a charge against the creditors a* whose request the sale was made.</p> <p>Where goods assigned to a creditor in trust to pay himself and other creditors, were attached at the suit of some of the creditors as the property of the assignor, before the assignment had been assented to by any creditor besides the assignee, and the value of the goods exceeded the amount of the assignee’s demand, it was held, in an action of trespass brought by the assignee against the attaching officer, that the measure of damages was the amount of the plaintiff’s demand against the assignor, and not the value of the goods.</p>

<p>This was an action on the case for a fraud in the perform anee of a special contract, alleged to have been made by the defendant with the plaintiff, to manufacture a certain quantity of shingles for the plaintiff. The cause was tried in the Court of Common Pleas, before Strong J.</p> <p>Before the case came on for trial, the plaintiff moved to amend by filing two new counts containing the allegations that the plaintiff was to furnish suitable materials for making the shingles, and that he did furnish such materials. The defendant objected that the amendments were for new causes of action, but the judge allowed them to be filed.</p> <p>Among other evidence introduced by the plaintiff to show a fraud in the manufacture and packing of the shingles, a trunk full of what was alleged by the defendant to be shingles, was brought into court and exhibited to the court and jury. These were proved to have been taken out of the bunches of shingles made by the defendant for the plaintiff. Upon inspection of them the court considered that they could in no sense be deemed shingles ; that no prudent person would ever think of using them as shingles, upon any building ; that they were mere chips. The defendant contended, that it was the province of the jury, and not of the court, to determine the nature of the things brought into court in the trunk, and whether they were or were not to be considered as shingles. But the judge ruled that as it was apparent by inspection, that they were not shingles, and there was no doubt about it, it was proper that the court should decide the question.</p> <p>The defendant offered to prove, in defence of the whole action, as well in respect to the shingles brought into court as to those which were not brought into court, that the plaintiff furnished the materials, and that they were so bad that no better shingles could be made out of them ; and he stated as- one ground of his motion, that the plaintiff had alleged in his writ that he was bound to furnish suitable materials. The judge ruled, that as to those which were brought into court, such evidence would not be a defence ; that if the materials were so bad that no better shingles could be made of them, the defendant should not have used the timber at all; but that the defendant might introduce the evidence and have the benefit of it so far as it would operate, with respect to those shingles which were not brought into court, in mitigation of damages, and as a defence pro tanto, if the evidence should be sufficient. The defendant declined introducing the evidence, unless it could be admitted as a defence to the whole action.</p> <p>It was proved that the shingles were delivered to the plaintiff in bunches, that the outsides of the bunches appeared well, and that the plaintiff, at the time of the delivery and until he had paid the defendant, had no knowledge that any of the shingles were defective.</p> <p>The jury found a verdict for the plaintiff.</p> <p>The defendant filed exceptions to the foregoing decisions of the judge.</p>

<p>Where the settlement of a testator’s estate is delayed a long time without any neg* ligence on the part of the executor, and he has not used nor made profit of the funds in his hands, he is not chargeable with interest.</p> <p>Devise: — u I give to my wife the improvement of all my estate, real and personal, which improvement to belong to herself for her own benefit, so long as she remains my widow, but should she marry or die, I bequeath the estate in manner following,” &c. giving real estate and pecuniary legacies to the testator’s children. In a codicil the testator says: “ It is- my will that after settling my estate my wife have the interest of the remainder of my personal estate and that the judge of probate appoint a disinterested person to take charge of said personal estate and pay the interest to her so long as she remains my widow, and after her decease the personal estate to be divided equally among my heirs.” It was held, that the widow was entitled to the interest of the personal property not applied to the payment of debts and charges of administration, from the death of the testator and not merely from the time when his estate should be settled $ and that the payment of the pecuniary legacies was to be postponed until after her right to such interest should terminate.</p>

<p>A general traverse ought to conclude to the country 5 and the circumstance that new matter is introduced by way of inducement to the traverse, makes no difference.</p> <p>In trespass for assault and battery committed upon the plaintiff in his dwelling house, the defendant cannot justify on the ground that he was the owner of the house and that the possession was unlawfully withheld from him, and that he used no more force than was necessary to enable him to enter and to overcome the plaintiff's resistance.</p> <p>In such action, the defendant pleads that the assault and battery were committed in defence of the possession of a dwellinghouse of which the defendant was seised and possessed, and the plaintiff replies de injuriá, &c. Held, that the replication was sufficient.</p> <p>In such action the defendant pleads that the first assault was committed by the plaintiff, and the plaintiff replies that the defendant broke open the dwellinghouse of the plaintiff and beat him, and that he in defending himself against the defendant, gently laid his hands on the defendant, which was the same assault in the plea mentioned, concluding with a verification. Held, that the replication was bad, inasmuch as it does not aver distinctly, whether the plaintiff or the defendant made the first assault; and if it means the former, it ought to have confessed and avoided in direct and unambiguous language; if the latter, it ought to have contained a general traverse, concluding to the country.</p> <p>In such action it appeared, that the plaintiff lived in the same house with his son and son’s wife, that the defendant broke open the house and beat the plaintiff and his son, that the son's wife was in travail, and that this fact was made known to the defendant before he entered the house. Held, that the situation of the son's wife was properly admitted in evidence, to show the malice of the defendant and the aggravated suffering of the plaintiff, although it was not set forth in the plain tiff's declaration.</p> <p>In such action the circumstance that the defendant entered the house for the purpose of making an attachment, is not admissible in evidence in mitigation of dam ages.</p>

<p>This action was commenced against Peck, and upon his death pending the suit, was defended by his administrator. The plaintiff declared in a plea of debt, for that by the consideration of the Court of Common Pleas held at Wilkesbarre in Pennsylvania, in 1829, he recovered judgment against Peck for 0 200 debt, as well for the governor of Pennsylvania and for the support of the government thereof, as for himself; whereby an action had accrued to the plaintiff to recover of Peck, as well for himself as for the governor of Pennsylvania and for the support of the government thereof, the sum above named, with interest.</p> <p>It was admitted that there was a record of such a judgment as the plaintiff had declared on ; that it was recovered with notice and on the verdict of a jury ; and that it appears by the record, that the judgment was recovered on a penal statute for usury in a qui tarn action ; and it was agreed that the defendant might take any exception to the jurisdiction of this Court, 'which he could in any state of the pleadings.</p>

Assumpsit to recover of the defendants the balance of an order dated at Goshen, January 16, 1829, and signed “ Timothy Lyman, Benjamin White, Jared Hawks junior, Committee of the said town,” directing Malachi James, as the collector and treasurer of the town for that year, to pay to the plaintiff $250,- “ it being due him out of the $> 500 raised by the town the last winter, towards making the road from Cummington line to near John Williams’s in said Goshen.” At the trial…

This was an action of debt against the defendants, Shepherd & Robbins, as late copartners, upon a contract for the delivery of wool. The declaration contained a special count upon the contract, and general counts for goods sold and delivered, &c. A trial was had before Wilde J. Shepherd made no defence.

This was a libel by a wife against her husband, for a divorce a mensa, et thoro, for neglect to make suitable provision for the maintenance of the libellant, and for extreme cruelty alleged to have been used towards her in August 1830, at Uxbridge, in the county of Worcester. The libel was filed on September 6, 1830.

Assumpsit upon a promissory note made by the defendant, on April 28, 1828, payable to Thomas Buffum & Co., for $465‘83, with interest, on demand, and indorsed to tne plaintiff in January 1829. The cause was tried before the late chief justice Parker. To prove the time of the indorsement the defendant called Arnold, one of the house of Thomas Buffum & Co., who, though objected to, was admitted for that purpose.

This was an action of covenant, brought upon a lease made by the defendant’s intestate, of waterworks and buildings, with the whole control ®f the water, &c. A part of the water had been diverted both before and since the death of the lessor, under a paramount title. The lease contained a covenant foi quiet enjoyment, and the declaration alleged a continuous breach of that covenant.

<p>Where i probate appeal is rightfully heard before one of the judges of this Court, without a jury, his decision of a question of fact upon the evidence laid before him, is conclusive, unless in the exercise of his discretion he shall reserve, for the determination of the whole Court, the question of the sufficiency of the evidence to support a decree.</p> <p>Where a question of fact is so reserved, the evidence may be stated by the judge, either in his decree, or in an accompanying report.</p> <p>But a party to a probate appeal cannot, as a matter of right, require the judge to report the evidence.</p> <p>Questions of law arising on the trial of a probate appeal before one of the judges of this Court, may be brought before the full Court upon the report of the judge, (in case he shall, in the exercise of his discretion, think fit to report the same,) or upon exceptions filed.</p>

Petition for partition of certain land, in which the petitioner alleges that he is interested with persons unknown.

<p>The defendant was indicted and convicted as a common barrator. The trial was had before Wilde J.</p> <p>1. The defendant objected to the sufficiency of the notice of the particulars given him before his trial, because the notice stated that evidence would be offered concerning the following particulars, namely, —</p> <p>“ Complaint in behalf of the Commonwealth vs. Philip F. Cowdin for perjury, before M. Gill Esq.</p> <p>Two complaints &c. vs. Same, for forgery, before I Goodwin Esq.</p> <p>Complaint &c. vs. Same, for forgery, before C. Myrick Esq.</p> <p>Complaint &c. vs. Same, for forgery, before D. Brigham Esq.</p> <p>Complaint &c. vs. Josiah Hartwell and others, complaint made to W. Jennison Esq.</p> <p>Complaint &c. vs. Sumner D. Boynton for assaults &c. before P. Williams Esq.” —</p> <p>and in the notice it was not stated at what time the complaints were made, and the initial letter only of the Christian name of several of the magistrates, before whom the complaints were stated to have been made, was given.</p> <p>2. The defendant objected that evidence was received con cerning complaints stated in the notice to have been made before I. Goodwin Esq., C. Myrick Esq. and D. Brigham Esq., when in fact those complaints were made before other magistrates, and returned and tried before Goodwin, Myrick and Brigham.</p> <p>3. The defendant objected that the judge did not instruct the jury, that the recognisance of the defendant in the complaint tried before Myrick, to appear at the Supreme Judicial Court, was conclusive evidence that the defendant in this indictment had probable cause to make that complaint.</p> <p>These objections having been overruled at the trial, the defendant filed his exceptions, and prayed for a new trial.</p> <p>He also moved in arrest of judgment, on the ground that tiie indictment charging him generally as a “ common barrator,” was insufficient.</p>

<p>The Court has no power to decree a specific performance of a contract, unless every part of it has been reduced to writing.</p> <p>Thus where the defendant entered into a contract in writing to execute and deliver a deed of land upon the payment of certain notes given for the purchase money, and made a subsequent verbal promise to deliver the deed upon payment of the notes before they should fall due, it was held, that a bill in equity against him for the specific performance of the contract as modified by the verbal agreement could not be sustained.</p>

<p>A vacancy in the office of judge-advocate will not authorize the major general to appoint a judge-advocate pro tempore for any particular court-martial.</p> <p>The proceedings of a court-martial without a judge-advocate legally appointed, are illegal and void.</p>

<p>Where a division court-martial, which assembled during a vacancy in the office of judge-advocate, afterwards met merely by force of an adjournment, and in the mean time a judge-advocate was duly appointed and commissioned, it was hela that the proceedings at the adjourned session were void, the court as at first constituted not being a legal court, and the act of adjournment being consequent ly a nullity.</p>

<p>This was a bill in equity brought by Clark and six others, alleging that on or about the 4th of July 1825, the plaintiffs and divers other persons entered into partnership for the purpose of establishing and maintaining a line of stage-coaches between Boston and Greenfield, and that in execution of that project, horses, carriages, &c. were purchased by the partners, each of whom paid for that purpose $40 on each share subscribed or taken by him in the enterprise; that immediately thereafter divers of the partners abandoned and gave up their shares and wholly withdrew themselves from the company, they having the right so to do by the terms of the original subscription and agreement, and thereupon the remainder of the partners became interested in the property and enterprise, and agreed, each with the other, to share in the profits or losses which should accrue therefrom, in proportion to the number of shares therein taken by them respectively ; that the partners who remained and became exclusively interested after such abandonment, were the plaintiffs together wúh Reed and about fifty others (naming them and stating the number of shares taken by them respectively, nearly all of them being made defendants) ; that five of the partners have died (naming them and their respective executors and administrators) ; that the enterprise was kept in operation from the time of its commencement until about the 5th of November 1827, when the further prosecution thereof by the partners was discontinued and the property was sold by them ; that the enterprise proved to be very unprofitable ; that no adjustment of the partnership concerns has ever ■ been made by and between the partners ; that many and large debts are still outstanding against the partnership ; that the plaintiffs have severally expended more money and performed more services than their proportion, for which they have never been reimbursed or remunerated, and that they are still liable to be called upon for the payment of the outstanding debts ; and that they have repeatedly requested their partners to contribute their just proportion towards the payment of the debts and to come to a final adjustment of the affairs of the partnership, which request has not been complied with. The prayer of the bill is for an account and for relief.</p> <p>In an amended bill the plaintiffs allege, that after the enterprise was put into operation, the partners held meetings from time to time, at which regulations were adopted and officers chosen, &c. ; that the defendants attended many of the meetings and exercised the same powers and privileges as the complainants did ; that three assessments of nine, ten and six dollars were assessed in October 1825, and February and May 1826, upon each share, and that the defendants, as well as the plaintiffs, paid the same ; that the defendants, at all times during the period when the scheme was prosecuted, acted as members of the company, and none of them, until after the relinquishment of the enterprise, ever gave notice to the company of his intention to abandon to them his interest in the enterprise. The amended bill concludes with certain interrogatories.</p> <p>Numerous answers to each bill were filed, some by several of the defendants jointly, and others by other defendants separately ; and different defendants employed different counsel. Most of the defendants deny that they entered into partnership with the plaintiffs, but they state that in March or April 1825 they were requested to contribute a sum of money for the purpose of assisting in establishing a line of stages from Greenfield to Princeton, and they accordingly subscribed certain sums specified, -most of the subscribers $ 25 each ; that on or about the 4th of July 1825 a subscription paper was signed by several of the defendants, which was as follows ; — “ Whereas it is contemplated to extend the stage now running from Greenfield to Princeton on to Boston, and whereas it is contemplated to raise the sum of $ 1260 to effect the same, to be divided into eighty-four shares of $ 15 each; — We the undersigned mutually promise and engage to take the number of shares set against our respective names in aid of the aforesaid object, to be paid one half in three months and the other half in six months, provided the number of shares aforesaid are all taken up ; and no subscriber shall be liable to pay any assessment, provided he chooses to abandon his share or shares to the company ; and a refusal to pay any assessment which may be thought by a majority of the company or proprietors necessary, shall operate as a forfeiture of his share or shares ; ” they further state, that after subscribing this paper, they abandoned their shares and have refused to pay the assessments imposed by the company on their shares.</p> <p>The bill was dismissed for want of jurisdiction, the case showing no partnership, and the defendants claimed costs.</p>

<p>The St. 1828, c. 137, § 6, which provides that where judgment shall be rendered for the plaintiff in an action on the case for a nuisance, “ the court may, on motion of the plaintiff, in addition to the common execution, issue a warrant to abate the nuisance,” leaves it within the discretion of the court to grant or refuse such motion.</p> <p>The above provision is remedial, and not unconstitutional, when applied to a nuisance created and action brought before the statute was passed.</p> <p>Where the defendant erected a mill dam, which was found to be a nuisance to the plaintiff’s mill dam erected at about the same time and which prevented the plaintiff from building a mill, and the defendant built a manufactory at great expense, and the plaintiff’s water privilege was of comparatively little value, and the defendant, before the action was brought, mortgaged his estate and it did not appear by the record that the mortgagees had had notice to appear in defence of the action, before the defendant’s dam was adjudged a nuisance, the Court refused to award a warrant to abate the nuisance.</p>

<p>Trespass for an assault, battery and imprisonment of the plaintiff.</p> <p>It was agreed, that at a legal meeting of the second school district in Mendon, held on October 15, 1827, the clerk of the district resigned his office, and thereupon the defendant was elected clerk and sworn. The warrant of the selectmen for calling the meeting contained no article for the election of a clerk. At a meeting of the district, warned by the defendant as clerk but without a warrant from the selectmen, held on December 14, 1827, the district voted to raise the sum of 800 dollars for the purpose of building a schoolhouse, and the defendant as clerk certified the vote, in May 1828, to the assessors of the town, but they neglected to assess the sum mentioned, while they remained in office. In October 1829 the defendant delivered to the assessors for that year a certificate in the following form ; — “ As clerk of the second school district in Mendon I now certify to you, that the following vote was passed at a legal and duly organized meeting of the inhabitants of said district, holden December 14, 1827 ; ‘ Voted that the district raise the sum of eight hundred dollars and cause the same to be assessed and collected for the purpose of building a schoolhouse in said district.’ John G. Met-calf, Clerk Second School District.” The assessors there upon assessed the sum specified in the vote, upon the polls and estates of the inhabitants of the district, and committed the assessment thereof, with a warrant for the collection of the same, to the collector of taxes for the town. The plain tiff was assessed the sum of $25-50, which he refused to pay, and he was thereupon arrested by the collector, by virtue of his warrant, and held under arrest three hours and until he paid the tax and the collector’s fees.</p>

<p>(n an action between two towns to recover the amount of expenses incurred by the plaintiff town in relieving a person whose settlement was in the defendant town, the fact that such person might by going a short distance have obtained of his debtor as much money as was expended for his relief, was held not to be conclusive evidence that he was nota pauper.</p> <p>But if he was not a pauper, evidence is admissible to show that he was in distress under such circumstances as to require immediate aid from the plaintiffs.</p>

<p>A divorce a vinculo for the cause of adultery was decreed, where the only evidence of the crime was the confession of the guilty party, there being no reason to suspect collusion.</p>

<p>The defendant conveyed land to the plaintiff in mortgage, and gave a bond with condition that he would discharge all incumbrances. The plaintiff having entered for foreclosure, a prior mortgagee recovered judgment for possession for the non-payment of a sum found due on his mortgage, and afterwards entered upon the plaintiff and evicted him. The plaintiff commenced an action upon the bond before the eviction, and upon a hearing in equity after the eviction, it was held, that the measure of the plaintiff’s damages was the amount of the first mortgagee's judgment and costs, with interest computed thereon to the time of rendering the judgment for the plaintiff.</p>

Petition for a review of an action tried at April term 1830 of this Court, in which Allen was the plaintiff and Davis the defendant. The petition contains the following allegations. The action was brought to recover a part of the consideration for a farm sold by Allen to Davis in 1823 ; and the question in controversy was, whether Davis had paid the whole consideration at or near the time of the purchase, or whether a part of it remained due.

<p>Trespass for taking a horse.</p> <p>The cause was tried before Putnam J., and by his report it appeared that the defendant, being a deputy sheriff, took the horse as the property of Jonathan Peirce, upon an execution m favor of one Butman against Peirce. The horse once belonged to Peirce. He failed on the 29th of October 1829, and all his property except this horse was attached on three writs, one in favor of J. F. Clark, and the other two in favor of his sons Willard Peirce and John G. Peirce. The horse was sold by Jonathan to his son Willard on the 31st of October, for $75, and was paid for by a note for that amount, payable in a year. It was however proved by one Gates, that Willard told him on the 30th of October, that he had bought the horse. The bargain was made at the plaintiff’s house, and he witnessed the note. On the same day Willard and the plaintiff conversed about exchanging horses, but no bargain was completed between them until the 2d of Novemher, when an exchange took place and the plaintiff thereby obtained the horse in controversy.</p> <p>It was alleged by the defendant, that the sale from Jonathan to Willard was fraudulent, and that this was known to the plaintiff when he obtained the horse.</p> <p>The defendant proved by the testimony of Gates, that on the morning of the 29th of October, he (Gates) learned of the failure of one Willington; that he communicated this to Jonathan Peirce, who thereupon said he had signed notes with Willington at the bank, and he now expected they would come upon him, and if they did, he must do the best he could ; that Jonathan then took the horse and rode him away, and the horse was never brought back again ; that when Jonathan rode away the horse, he went to the house of one of his sons-in-law, three or four miles distant, where he found his son Willard, to whom he communicated the fact of his being in failing circumstances. Whereupon Willard procured the writs in favor of himself and of John G. Peirce to be sued out and served.</p> <p>Testimony was offered by the defendant, of declarations of Jonathan and Willard, tending to show a conspiracy between them to keep the horse from the creditors of Jonathan.</p> <p>The plaintiff then, in order to show his motives in procuring the horse, offered to prove, that prior to the failure of Jona than Peirce, viz. in August 1829, Jonathan in a conversation which he had with Gates, stated that he and Willard were desirous of obtaining the plaintiff’s horse to mate one w'hich Willard owned, and for this purpose wished to exchange with the plaintiff, and that the horse of the plaintiff would mate the one owned by Willard. The defendant objected to this evidence, but the objection was overruled, and Gates testified, that sometime in August 1829 he heard 'Jonathan speak of swapping with the plaintiff for his horse, which was very lively that Jonathan said the plaintiff proposed it for the purpose ot getting a steady horse to work.</p> <p>The jury were instructed, that there were two questions ior them to decide, first, whether the sale from Jonathan to Willard was fraudulent ; and second, whether this was known to the plaintiff at the time of exchanging his own horse fot the horse in controversy.</p> <p>A verdict was found for the plaintiff, and the defendant, among other things, excepted to the admission of the declaration of Jonathan Peirce, as testified to by Gates.</p>

<p>A contract was made between the respondent and a manufacturer, by which the respondent was to invest a certain sum in a manufactory to be owned by him, and the manufacturer was to be employed by him for a salary, and was to deposit in his hands a sum of money to indemnify him against loss in the business. The contract was to determine upon the request of either party, and so much of the sum deposited as should not be required to indemnify the respondent against loss, was to be repaid with interest. Held, that the contract was not fraudulent per se as against creditors; and that the respondent was not liable in a process of foreign attachment served on him while the contract was in operation, as the trustee of the manufacturer for the sum deposited, it being contingent whether any part of that sum would ever become due to the manufacturer.</p>

Trespass for breaking and entering the plaintiff’s close and encumbering his barn by depositing there four tons of hay, against his will and to his damage. The defendant pleads in bar, that the close and barn, at the time when the supposed trespass was committed, were the soil and freehold of Earle Flagg, and that the defendant, as the servant of Earle and by his command, broke and entered, &c. and deposited the hay, as he lawfully might do.

<p>Commissioners of insolvency on the estate of a person deceased, are not authorized to allow a claim against the deceased which depends on a contingency whether it will ever become due.</p> <p>Thus, where the plaintiff agreed to support a third person during his life, and took from the deceased a bond of indemnity, it was held that the commissioners were authorized to make the plaintiff an allowance only for his expenses previous to the close of the commission, it being uncertain how long such third person would live, and what amount would be required for his support, and whether the plain- * tiff would continue to fulfil his agreement to support him.</p>

<p>Assumpsit. On a case stated it appeared, that the writ was sued out and property of the defendants attached on the 19th of June 1829. The plaintiffs were commission merchants in Providence, Rhode Island, and the defendants were merchants in Savannah, Georgia. In 1829 the defendants made several shipments of cotton, to be sold by the plaintiffs but at the risk of the defendants. The cotton was sold to persons in good credit, for their notes, payable to the plaintiffs or their order, in six months, at a bank in Providence. The defendants, whenever they made a shipment, drew bills upon the plaintiffs, without waiting for the sales or the avails of them, and these drafts were accepted and paid. Before the notes given for the cotton fell due, several of the promisors became insolvent, so that the plaintiffs had advanced on the defendants’ drafts a much larger sum than they had realized from the notes of the purchasers. None of the notes were negotiated. The accounts current were made a part of the case. The action was commenced before any one of the notes had fallen due, but not until after the failure of the makers, and the defendants contended that it was prematurely commenced.</p> <p>A default or a nonsuit was to be entered, according as the Court should adjudge upon these facts.</p>

<p>The plaintiff declared in “ a plea of the case, for that the defendant at &c. on &c. sold and delivered the plaintiff a quantity of beef, to wit, one hundred pounds, for the sum of three dollars ; and the defendant then and there sold the same to the plaintiff as and for good and wholesome meat, for the said sum of three dollars, then and there agreed to be paid by the plaintiff to the defendant; which said meat or beef was there at said time, unwholesome from the state in which the animal died ; which the defendant then and there well knew ; and so the defendant deceitfully injured and defrauded the plaintiff.”</p> <p>In the Court of Common Pleas held by Strong J., alter a verdict for the plaintiff, the defendant moved in arrest of judgment, 1. because the plaintiff, in his declaration, has not alleged any payment for the meat purchased by him, but has set forth facts which, if true, discharge him from any liability to make payment therefor ; 2. because he has not alleged that any damage whatever was sustained by him in consequence of any act stated to be done by the defendant.</p> <p>The Court of Common Pleas, upon this motion, arrested the judgment; and to this decision the plaintiff excepted.</p>

<p>In the case of a person committed to gaol on an execution in favor of several creditors, partners or not partners, all living within the commonwealth, the notification that he intends to take the poor debtors' oath must be served on each of the creditors $ otherwise the departure of the debtor from gaol, in pursuance of proceedings founded on such notificatipn, will be an escape.</p>

<p>It being referred to the Court to determine whether a certain book was the record' of a church, or a private memorandum, it appeared thht during the whole time it was kept a certain individual was the minister of the parish and pastor of the church, that the book was kept wholly or principally by him, that it contained a regular statement, in proper form for a record, of the admission of members, the choice of officers, and the transaction of the regular business of the church, and that no other book was kept as a record; and thereupon it was held, that the book m question was the record of the church.</p> <p>On the same considerations it was held, that the book was originally purchased for or given to the church for the purpose for which it was used, and that by force of St. 1785, c. 51, the legal property in it vested in the deacons of the church, and that they were entitled to recover it in an action of replevin against a person having it in his possession.</p>

<p>Debt:onan administration bond, dated in 1814, against the heir and devisee of one of the sureties, the action being brought, according to the indoisement on the writ, for the benefit of an heir of the intestate : pleas, 1. performance ; and 2. that the surety died in 1819, and that letters testamentary were granted in the same year to his executor, and that the estate in the hands of the executor ought to have answered the bond : replication, that the administrators, in 1818, settled their first and only account, showing a balance in their hands, which was ordered to be accounted for according to law, but that the administrators converted the same to their own use and died insolvent; that in 1813 the intestate mortgaged his land to secure a debt payable within four years, but that the debt not having been paid, the assignee of the mortgage recovered possession of the land in 1830. Held, that the action could not be sustained, 1. because no substantial breach of the bond was set forth, the neglect to settle an administration account within one year not being assigned as such, and it not being alleged that the administrators were cited to settle a second account; 2. because the breach, if any, took place before the settlement of the estate of the surety was closed, and the claim should have been made against his executor; and 3. because there had been no probate decree ascertaining the distributive share of the heir who instituted the suit, and no demand thereof made upon the administrators.</p>

<p>If a jury agree upon a verdict during the adjournment of the court, and are there upon permitted to separate, and afterwards, on their coming into court, one of them dissents, the verdict cannot be recorded.</p>

<p>A testator gives<{ to my several grandchildren hereafter named, to wit, &c. (naming nine grandsons and nine granddaughters) all the remainder of my real and personal estate, to be equally divided between them.” He then authorizes a sale by his executors, of his real and personal estate, and directs that the proceeds, after the payment of his debts, &c. shallc< be equally divided between my several grandchildren named in this eleventh section:—provided however, and it is my intention, that if any of my grandsons should die before they arrive to the age of twenty-one years, [the share of the one so dying is] to be equally divided among the surviving ones 3 — provided also, that if any of my granddaughters should die before they arrive to the age of eighteen years, [the share of the one so dying is] to be equally divided among the surviving ones.” It was held, that the legacy to a grandchild under the age specified was a contingent legacy, and that it was the duty of the executors to retain the same in their hands until the legatee’s death or attainment of such age; and that a payment by them to the guardian of a legatee who afterwards died before attaining such age, was made in their own wrong.</p> <p>The settlement in the probate court, of an account in which the executors charged the legacy so paid to the guardian, was held not to estop a surviving residuary legatee from maintaining an action against the executors for his share of the legacy so paid, notwithstanding he had notice and was present at the settlement of the account, for the judge of probate has no jurisdiction of the questions to whom and at what time a legacy is to be paid.</p> <p>was held, that the share of a grandson, one of the residuary legatees, wbc e’>d under age, was to be divided among the surviving grandsons named in the re- • siduary clause, to the exclusion of a grandson not there named, and of the granddaughters.</p>

Trespass. The action was submitted to the decision ol the Court, upon the following facts. The plaintiffs are a manufacturing corporation doing business in Millbury, where they own real and personal estate, which is employed in the manufacture of woollen goods.

This case, which was an action against the sheriff of Worcester county, was submitted to the Court upon a statement of facts. The plaintiffs, on October 2, 1828, sued out their writ against one Holt, and on the same day delivered it to Joseph Upham, one of the defendant’s deputies, to be served.

<p>Action on the case. The declaration contained five counts ; the fourth and fifth of which will show the nature of the action.</p> <p>In the fourth it is alleged, that one C. D. Thompson, at Oxford, on December 7, 1826, was justly indebted to the plaintiff in the sum of $56.13, and was possessed of certain property, to wit, &c. of great value, to wit, $250, and the defendant, well knowing the premises and fraudulently contriving to deprive the plaintiff of the means of obtaining payment of his debt, and in order to aid and abet Thompson in his designs to evade payment of it, and thereby prevent the plaintiff from collecting and recovering it of Thompson, which he was about to do by due process of law, did fraudulently and wrongfully and with an intent the plaintiff thereby to defraud and injure, take and receive the property from Thompson and convert it to his the defendant’s own use, and thereby prevented the plaintiff from collecting his debt by attaching and selling the property by due process of law, as he might and would otherwise have done ; whereby the plaintiff has been ever since prevented from recovering his debt of Thompson, and wholly deprived of the benefit of the same, and the same is still due and unpaid.</p> <p>The fifth count alleges, that whereas Thompson, at Oxford, on December 7, 1826, was indebted to the plaintiff in the sum of $ 56, and was fraudulently and wrongfully contriving and intending to prevent the plaintiff from recovering the same of Thompson by putting out of his possession the property and estate of which he was possessed, so that the same could not be come at to be attached by due process of law, and avoiding the process of law provided for the collection of debts, by going out of the commonwealth and the reach of said process — of all which the defendant was then and there well knowing— he, the defendant, did, in order to aid and abet Thompson in his wrongful and fraudulent intent, and with the intent to injure and defraud the plaintiff of his demand against Thompson, take into his possession, purchase and receive the property and estate of Thompson, then and there being found, of great value, to wit, $250, and did fraudulently and with the intent to deprive the plaintiff of the means of recovering his debt of Thompson, aid, abet and assist Thompson to avoid the process of law provided for the collection of debts, by departing out of the commonwealth, which Thompson did, and has ever since remained without the reach and effect of the legal process of the commonwealth, in foreign parts, to wit, in the State of Vermont ; whereby the plaintiff was deprived of the means of collecting his debt, as he might and would otherwise have done, and was about to do, by attaching the property or arresting the body of Thompson by due process of law, and has ever since been deprived of his debt and all means of collecting the same or enforcing payment thereof, and has wholly lost the same, and has been otherwise greatly injured by the fraudulent doings of the defendant as aforesaid.</p> <p>The general issue was pleaded, and upon the trial a general verdict was returned for the plaintiff.</p> <p>The defendant moved in arrest of judgment, upon the ground that no sufficient cause of action was set forth in the declaration.</p>