Volume 29 — Massachusetts Reports

<p>A person does not acquire a legal settlement by residing in a town ten years to* gether and paying taxes there for any five of those ten years, if within that time he is committed to gaol, and while there applies for and receives relief as a pauper, from the gaoler.</p> <p>Where a pauper, whose legal settlement was in the town of S. was relieved by the overseers of the poor of the town of C., and upon notice the expenses were reimbursed by the overseers of the poor of the town of E. S., upon the supposition that Ins legal settlement was in E. S., it was held, that the town of E. S. could not maintain an action for repayment against the town of S.</p> <p>A notice by the overseers of the poor of one town to those of another, that a person has become chargeable as a pauper, given within three months after the expenses were paid, but not within three months after they were incurred, is insufficient.</p>

<p>Assumpsit to recover $711-50, money had and received to the use of the plaintiff, being the amount of a tax assessed upon him for the year 1828, for his poll and personal estate, and by him paid to the treasurer and collector of the city of Boston.</p> <p>At the trial, before Wilde J., it was proved that the plaintiff, with his wife, had lived at board in Medford several years, and had been taxed there four years preceding 1828, and also that year, and that on the 1st of May 1828 one of the assessors of Medford saw him there, at the house of his son-in-law, with whom he and his wife were then boarders. The plaintiff was usually in Boston some days every three or four weeks, where his principal business was the taking care of his property, consisting chiefly of public stocks and money, and on those occasions he boarded with a son-in-law who resided there , and the early part of the month of May 1828 the plaintiff passed in Boston.</p> <p>It was not questioned on the part of the defendants, that the plaintiff had his residence in Medford and was liable to be taxed there in the year 1828. The defence set up was, that he had requested the assessors of Boston to tax him there, by the following note. addressed . to them. “ Boston, Gouch Street, May 1828. You will please to be informed that I am a boarder at my son’s, E. D. Clarke, and you are requested to assess me this year, a light tax for personal estate ; trusting in your prudence and moderation, it is my wish in future to pay a light tax to this city.”</p> <p>The plaintiff was the owner of real estate in Boston, for which he admitted that he was regularly taxed in 1828. The taxes of that year were committed to Mackay, the treasurer and collector, on the 1st of November, and he soon gave notice to the plaintiff of his being taxed in Boston, and of the amount of his tax, with the time when payment would be required. On the 20th of December 1828 the plaintiff called upon Mackay, paid the tax on his real estate, and then objected to the tax on his poll and personal estate, as being an illegal assessment, saying that he was taxed wrongfully, that he had been taxed in Medford for his poll-and personal estate for 1828, and had already paid his taxes there. Mackay replied, that if he did not pay at the time limited, a warrant of distress must be issued against him, unless he obtained an abatement. The plaintiff thereupon petitioned the mayor and aldermen of the city for an abatement of his tax, which being refused, he paid the amount to Mackay on the 17th of January 1829.</p> <p>Upon these facts such judgment was to be rendered, upon nonsuit or default, as the whole Court should direct.</p>

<p>Where there are several issues joined and the finding of one or more of them ia decisive of the cause and renders the other issues immaterial, the jury may be discharged from finding any verdict upon these other issues, whether the parties consent or not.</p>

Assumpsit to recover for expenses incurred in supporting certain persons named in the plaintiffs’ writ, while confined in the house of correction in Boston, pursuant to sentences under St. 1787, c. 54, for suppressing and punishing rogues, vagabonds, &c. The parties stated the following facts. The writ was served on the 29th of July 1828.

<p>Where goods, lands and choses in action are assigned upon trust that the assignee shall convert the same into money and apply the money to the payment of such of the assignor’s creditors as shall become parties to the assignment, the assignee cannot be charged on a trustee process for the lands not sold and paid for, or the choses in action not collected, before the service of the process $ nor will the Court compel him to apply first "such land or choses in action to the payment of the creditors, parties to the assignment, in order to create a surplus of the goods to which the trustee process may attach.</p> <p>A consignee who has sold goods upon a credit, and guarantied the sale, is not chargeable as the trustee of the consignor, upon a trustee process served before the expiration of the credit.</p> <p>A debtor, after reciting his inability to pay all his debts, and his desire to make a distribution of his property among his creditors in a certain manner, assigns to a trustee, for that purpose, a distil-house in Medford, and land and wharf adjoining, and all the apparatus, u and all the rum and other liquors whatsoever in the same distil-house or on said wharf or elsewhere on the premises, and all the casks, shooks, wood, stock and other personal property whatsoever, being on the premises of or belonging to the debtor, and a certain lighter and boat, &c. and all the book accounts and debts due, &c.” At the time of making the assignment, the debtor had consigned to a commission merchant in Boston several barrels of rum, for sale, and while it remained unsold, a trustee process, at the suit bf a creditor of the consignor, was served upon the consignee. Held, that this rum did not pass by the assignment, (the words “ personal property ” being restrained to articles ejvsdem generis with those previously enumerated,) and therefore was held by the trustee process.</p>

<p>Writ of entry. Upon a case stated it appeared, that on November 4, 1814, Matthew Bridge was seised of the demanded premises and certain other real estate, and that on that day he made his last will, containing the following provisions : —</p> <p>1. “ I give and bequeath to my beloved wife Alice, my mansion-house where I now live, with the land, stable and appurtenances, &c. with all the furniture, &c. to be and remain her sole property during her life ; and I do further give and bequeath to her during her life, 1200 dollars per annum, &c.; and it is my direction that the sum of 20,000 dollars be appropriated in some secure fund, &c. for the regular payment of her annuity, and that if from any cause the product of the said 20,000 dollars should fall short of the said annuity, the deficiency shall be made good from my other estate herein bequeathed.”</p> <p>2. “ To the children of my son Nathan Bridge, as well as to those who may hereafter be born, I give and bequeath the dwellinghouse with the land and other buildings which my said son now occupies, which premises I value at 8500 dolIars, and which house, land and appurtenances shall remain for the occupancy and benefit of said Nathan Bridge, my son, during his natural life.”</p> <p>3. “ To my son Nathan Bridge I give and bequeath one half of my store in Kilby Street in Boston, which I value at 2500 dollars. I also give him my carriage and my car riage horses ; he prov'ding his mother with a suitable chaise horse.”</p> <p>4. “ To the children of my daughter Alice Baker, as well as to those who may hereafter be born, I give and bequeath the distil-house, &c. which I value at 11,000 dollars, &c. and the house and land, &c. which is now occupied by my daughter Alice; it being understood, and it is my intention, that the distillery and its appurtenances, together with said dwellinghouse and land, shall be for the free use and occupancy of my said daughter during her natural life.”</p> <p>5. “ To the children of my daughter Sally Knowles, and to those who may hereafter be born, I give and bequeath the new brick house and land, &c. which I value at 10,000 dollars ; the house and appurtenances in Bow Street, &c. which I value at 2500 dollars ; also a lot of land, &c. ; also the land which I bought, &c., both of which parcels I value at 1000 dollars, &c.; and the wharf, &c. which I value at 3200 dollars ; it being understood, and it is my intention, that the whole of said estates and their appurtenances shall be for the free use and occupancy of my said daughter Sally during her natural life.”</p> <p>6. “ To my son Samuel Bridge, I give and bequeath all the moneys which remain due to me in the hands of Samuel Williams in London, together with the interest that has accrued on the same to the present time, and which I now estimate at 15,000 dollars, &c. and this property is to be considered as part of his portion of my personal estate. I also give and bequeath to my said son Samuel one half of my store, in Kilby Street, in Boston, which I value at 2500 dollars, and which premises he shall come into possession of when he shall become of age, &c. And I further direct that the remainder of his education be paid for, together with all proper expenses until he is of age, without any charge against him for the same. I also give and bequeath to my said son Samuel, the reversion of my mansion-house, with all the land and buildings, to be his sole property at the decease of my wife. The value I estimate at 8000 dollars, but as-he will not probably receive possession for several years, it is to be estimated in the division of my estate at 6000 dollars.”</p> <p>11. “ The remainder of my estate, consisting chiefly of stocks, cash, merchandise, and a woodlot at Lexington which I value at 1000 dollars, after establishing the fund for my wife, to be equally divided among my children ; first debiting them with the amount they or their children have received in real estate according to my. valuation in this instrument, so that when one has received more than another in real estate, the excess may be deducted from their proportion of the personal property. The woodlot at Lexington, or any other estate which I may not have disposed of, may be sold at the discre tion of my executors. The merchandise I leave, I wish to be sold as soon as may be convenient.”</p> <p>12. “ On the decease of my wife, I give the funds appropriated for her support and the furniture at the mansion-house, to be equally divided among my children, Nathan, Alice, Sally and Samuel.”</p> <p>13. “Having at different periods advanced to my son Nathan 11,500 dollars, for my daughter Alice 7000 dollars, and for my daughter Sally 2500 dollars, I hereby direct these sums shall be charged to them respectively in the distribution of my personal estate.”</p> <p>“ Finally. I constitute and appoint my son Nathan Bridge and my brother Jonas Bridge, to be joint executors of this my last will and testament, whom I particularly enjoin to be scrupulously exact in carrying this will into effect according to the true spirit and meaning.”</p> <p>The will was duly proved and allowed in December 1814. The value of the several parcels of real estate mentioned in the will, as fixed by the testator, was the value of a fee simple title to those estates, and not the value of life estates therein. Nathan Bridge died in September 1830.</p> <p>If the Court should be of opinion, that by virtue of the will, the children of Nathan Bridge took a fee simple, subject to his life estate in the premises described in the second item of the will as then occupied by Nathan Bridge, judgment was to be rendered for the tenant; but if the Court should be of opinion that they took only a life estate, subject to the life estate of Nathan Bridge, judgment was to be rendered for the demandant.</p> <p>The case was argued in writing.</p>

<p>Bill in equity. The plaintiffs set forth, that they are tenants in common with the defendant of a certain mill on Charles River, at Watertown, with the land and water privileges thereto belonging, known as the ancient grist mill, the plaintiffs owning two thirds and the defendant one third. The bill then states, that the defendant is owner in severalty of an estate and mill privilege adjoining to the ancient grist mill, with a limited right to draw water from the same common stream, to wit, sufficient to keep in constant operation 648 spindles for spinning cotton, with the necessary machinery. It then avers, that the cotton factory has in .fact been burnt down and discontinued, and that the defendant has substituted in its place a paper mill, and for a long space of time has taken and drawn, and still takes and draws, from the creek and pond above the ancient grist mill, a quantity of water much larger than suffi cient to keep in operation a cotton factory of 648 spindles, to the great damage of the plaintiffs, as they are owners in common with the defendant, of the ancient grist mill. The bill makes the usual charges and averments, and prays for an answer and process, and that commissioners may be appointed to ascertain the defendant’s rights, that he may be enjoined from exceeding them, and for general relief.</p> <p>To this bill there was a general demurrer, and the question was, whether the Court had jurisdiction.</p> <p>The case was argued in writing by R. S. Fay, in support of the demurrer, and by F. Dexter and W. H. Gardiner, for the plaintiffs.</p> <p>In support of the demurrer it was said, that the bill does not aver that the defendant uses more water than he is entitled to, imder the several rights set forth. The bill, therefore, must stand entirely independent of any question that might have been made between these parties as tenants in common, since it makes no complaints nor prays for any thing against the defendant as tenant in common of the ancient grist mill. The fact, therefore, of his being tenant in common is immaterial under this bill, and may be struck out.</p> <p>The rights of the parties are already sufficiently distinct, and cannot be made more so by the appointment of commissioners.</p> <p>The questions presented by the bill do not arise between the parties as tenants in common. They are not tenants in common in the subject matter of the bill; and the jurisdiction of the Court cannot be maintained upon that ground.</p> <p>The bill is defective, inasmuch as it does not allege any special damage caused by the defendant’s use of the water.</p> <p>A court of equity will not interfere between independent proprietors and grant a commission to settle boundaries, without the consent of parties. Speer v. Crawler, 2 Meriv. 410. All the cases where a court has exercised this jurisdiction have been where the soil itself was in question, or where there might have been a multiplicity of suits ; as where there were several parcels of land and several owners, and the boundaries betwixt the several parcels were confused. Here neither the soil nor any right is in dispute. Wake v. Conyers, 1 Eden, 335 ; S. C. 2 Cox, 360 ; 8 Com. Dig. (Hammond’s edit.) Appendix, Boundaries, 2.</p> <p>The plaintiffs have a plain and adequate remedy at law, by an action on the case for diverting a water-course, notwithstanding the defendant is a co-tenant of the right infringed by him. Bac. Abr. Joint Tenants fyc. K; Angelí on Watercourses, 83.</p> <p>If this were sustainable, as a bill for partition, the Court would not issue a commission, for a partition in equity is effected by conveyances directed to be executed between the parties, and here some of the parties are incompetent to execute sufficient deeds, except upon license from the Supreme Court of Probate. Whaley v. Dawson, 2 Sch. & Lefr. 372.</p>

<p>Bill in equity to redeem three parcels of land in Hopkiu ton. Service was made upon the defendant on July 6, 1825.</p> <p>The bill alleges, that Joseph Belknap, being seised in fee of the three parcels, mortgaged the same on December 22, 1813, to Elizabeth Price, to secure the payment of a sum of money, and that on April 19, 1822, Elizabeth Price assigned the mortgage to the defendant : —</p> <p>That on December 13, 1817, Joseph Belknap conveyed one parcel to Seth Belknap ; that on April 10, 1819, Seth reconveyed the same in mortgage to Joseph ; that on May 4, 1819, Joseph assigned this mortgage to the plaintiff; that the condition of this mortgage has not been performed : —</p> <p>That on May 25, 1819, Joseph Belknap mortgaged to the plaintiff the second parcel, and that the condition of this mortgage has not been performed : —</p> <p>That on December 13, 1817, Joseph Belknap conveyed to Seth Belknap the third parcel; that on January 27, 1819,-Seth conveyed the same to one Chamberlain ; and that on June 17, 1825, Chamberlain conveyed the same to the plaintiff.</p> <p>The bill further alleges, that the plaintiff, being seised of the right in equity to redeem the three tracts from the mortgage made to Elizabeth Price and assigned to the defendant, applied to the defendant on October 6, 1824, and again on June 18, 1825, to state his account of the rents and profits, &c. in order that the plaintiff might redeem, but that the defendant refused to state an account, &q. It concludes with a prayer for an account, and an offer to pay whatever sum may be found due to the defendant.</p> <p>The defendant, in his answer, states that Elizabeth Price, after the condition in the mortgage to her was broken, to wit, on July 1, 1820, assigned the mortgage to one Lawson Valentine 3 that on April 19, 1822, Lawson assigned the same to the defendant; that before he received this assignment from Lawson, he applied to the plaintiff to induce him to purchase of Lawson his right in the land, and that the plaintiff refused to purchase the same or to pay any thing towards redeeming the mortgage made to Elizabeth Price, and that the plaintiff then declared to the defendant that he never should or would redeem the land, because it was not worth more than the amount for which it was mortgaged to Elizabeth Price ; that the plaintiff afterwards, and before the defendant took the assignment from Lawson Valentine, requested and urged the defendant to purchase the mortgage made to Elizabeth Price, and repeatedly declared to and assured the defendant, that if he would purchase it, he the plaintiff would never redeem it, that the land was not worth more than the amount due on that mortgage, and that if the defendant would make the purchase, it would free the plaintiff from the importunity of the Belknaps and of one Parker ; that the defendant, confiding in the assurances so given to him by the plaintiff, made the purchase and took the assignment from Lawson Valentine, and after-wards erected a dwellinghouse on the land, at a great expense, and otherwise increased the value of the land, before the plaintiff notified him of his intention to redeem the land, and before the defendant had any knowledge or even suspicion of the plaintiff’s intention to redeem the same.</p> <p>The defendant further answers, that Joseph Belknap, on March 26, 1821, by his deed of that date, released the premises described in the bill, to Lawson Valentine in fee, and that as the defendant has been informed and believes, Lawson, at the time of the delivery of the deed, had no knowledge that Joseph Belknap had before assigned to the plaintiff the deed of mortgage made by Seth Belknap to Joseph, or that the plaintiff had any interest in or title to the land, or any part thereof, by virtue of that deed.</p> <p>The defendant also states, that he has no account of his expenditures on the mortgaged premises, nor of the income received by him ; that he was induced by the repeated declarations of the plaintiff to believe, and he did believe, that it never would be necessary for him to state his account, because his dwellinghouse has been destroyed by fire and his papers relating to the mortgage have been consumed.</p> <p>The plaintiff filed a general replication, and the parties exhibited their proofs.</p> <p>The cause was argued in writing by Stearns and Josiah Mams, for the plaintiff, and by Hoar, for the defendant.</p>

<p>When an execution is levied on land, it is the duty of the officer to give notice to the debtor, in order that he may choose one of the appraisers, and it must appear substantially in the officer’s return that he has given such notice.</p> <p>As no particular mode of notice is pointed out by the statute, a return that the debtor neglected to choose an appraiser was held to be sufficient, because by necessary implication it alleges that he had notice.</p> <p>The officer having returned that he seized the land in October, and that he kept uninterrupted seisin of it till the 1st of January following, — and the question being, whether the levy was recorded in due season,— the Court considered the levy to have been made on the 1st of January, there having been no attachment or conveyance affecting the title between October and January, and so the recording (which was within three months from the 1st of January) was in due season.</p> <p>Where an officer returns that he levied an execution on a certain day, which was the return day of the execution and the day of the sitting of the court to which it was returnable, it will not be presumed that the levy was not begun until after the adjournment of the court on that day.</p> <p>Devise: — “1 give to my daughter the income and interest of my estate, real, personal and mixed, during the life of her husband , — and in case she shall survive her husband, I give to her, her heirs and assigns, a moiety of the estate, and the other moiety I give to her children, their heirs and assigns 5 — and in case she shall survive her husband and all her children, I give the estate to her, her heirs and assigns $ — and in case she should die living her husband, I give to her husband the income and interest of a moiety of the estate during his life, and the residue of the estate I give to her children, their heirs and assigns.” The husband and four children of the daughter were living at the time of the making the^ will, the death of the testator and the death of the daughter. It was held, that a life estate in the real property was given to the daughter, for the joint lives of herself and her husband j that her children took a vested remainder in one moiety $ that the remainder to them in the other moiety was contingent, depending on the event of the daughter’s dying before or after her husband 5 that if she should survive him, she would take this moiety in fee 5 that if he should survive her, he would take an estate for his life in this moiety, with remainder to her children 5 and that as he in fact survived her, the remainder thereby became vested in the children.</p> <p>- One of the sons of the daughter having by his deed, with general warranty, "made during her life, conveyed li all his right, title and interest in and to the undivided real estate devised,” it was held, that the deed conveyed only his vested interest, and the warranty being only coextensive with the grant, he was not thereby es-topped to claim the contingent interest when it became vested in him by the happening of the contingency.</p>

<p>The statutes for the regulating of mills were designed to provide for the most beneficial occupation and enjoyment of natural streams and water-courses, but do not authorize the mill-owner to make a canal or artificial stream in such manner as to lead the water into the lands of another person 5 the remedy, therefore, of the party whose land is flowed by such artificial stream is by an action at common law.</p> <p>The fact that such artificial stream was made in virtue of a contract between the owner of the mill and the owner of the land, does not put it upon the footing of a natural stream, so as to bring it within the operation of the statutes.</p> <p>Where the act complained of is not a direct injury to the plaintiff's land, but the opening of a sluice on land upon which the mill-owner has a right to enter, in consequence of which the plaintiff's land is flowed, it seems that case and not tiespass is the proper form of action.</p>

A motion for a new trial in this case was argued by F. Dexter for the defendant, and H. H. Fuller for the plaintiff. The questions raised appear in the following opinion of the Court, which was drawn up by

Trespass for taking and carrying away fifty pieces of white flánnel, the property of the plaintiff.

<p>Assumpsit by the plaintiffs, manufacturers of scythes in the town of Westford, against the defendant, a trader in the town of Tewksbury, to recover the price of two dozen scythes, as goods sold and delivered.</p> <p>At the trial before Shaw C. J. the plaintiffs called a witness, one Richardson, who testified that he was an agent of the plaintiffs ; that in the spring of 1827 he called at the defendant’s store in Tewksbury to inquire if he should want any of the plaintiffs’ scythes that season; that the defendant told him he should, and that he would take a dozen of common and a dozen of double steel.</p> <p>One Parkhurst, called by the defendant, testified that he was a clerk in the defendant’s employment; that he was present when Richardson called at the defendant’s store ; that the defendant, in answer to the question whether he should want scythes that season, told Richardson he should want scythes, but not from the plaintiffs, as he was going to have some ot Owen Spaulding.</p> <p>Richardson again testified that the defendant did not tell him he should not want scythes of him, and that he had no recollection of hearing the name of Spaulding mentioned ; that he packed up two dozen scythes at the plaintiffs’ manufactory, and delivered them to one Simons, another agent of the plaintiffs, to carry to the defendant’s store.</p> <p>Simons testified that he carried the scythes and left them at the defendant’s store ; that the defendant was not there, and he delivered them to Parkhurst and told him from whom he had brought them. On cross-examination, he stated that Parkhurst asked him if they came on Owen Spaulding’s account, and that he answered that he did not know.</p> <p>Parkhurst further stated, that he received the scythes in two bundles, which he afterwards found to contain twelve of common and nine of double §teel; that he asked Simons at the time, if they were delivered on account of Spaulding, and Simons said he did not know; that he, the witness, credited them to Spaulding on the same day, but he did not know whether he told Simons that he should credit them to Spaulding ; that he so credited them, in consequence of the conversation that he had heard between the defendant and Richardson, and between the defendant and Spaulding.</p> <p>Spaulding deposed that he agreed with the plaintiffs to let the defendant have scythes on his account; that they after-wards informed him that they had so done ; that he credited the plaintiffs and debited the defendant accordingly ; and that he afterwards settled his account with the defendant and had an allowance for the scythes.</p> <p>One Warren testified, that afterward, in 1829, Farwell, one of the plaintiffs, told the defendant that he knew at the time when the scythes were delivered, that they were credited by tire defendant to Spaulding. This was when Farwell came for his pay, and the defendant then said that he had agreed with Spaulding for the scythes, and asked Farwell why he charged them to him rather than Spaulding, and Farwell said, because he did not know whether he owed Spaulding or not The defendant asked him, why, if he did not choose to take Spaulding as paymaster, he did not let the defendant know it in season.</p> <p>One Randall testified that he lived with Spaulding in the summer of 1827 ; that Farwell was at Spaulding’s shop and told him that some scythes had been left at the defendant’s on his (Spaulding’s) account.</p> <p>There was much contradictory evidence as to the principal points.</p> <p>The jury were instructed, that this action being assumpsit for the sale and delivery of goods, in order to maintain it the plaintiffs must show that there was a contract of sale and a delivery in pursuance of such contract. Both must concur. Where there is an unconditional delivery of goods, which the vender has to sell, as in case of a trader or manufacturer, to another, who accepts them unconditionally and applies them to his own use, the fact of a contract of sale is implied by law. But a mere contract of sale, without a delivery of the goods, (which implies an acceptance by the vendee,) is not sufficient to maintain an action for goods sold and delivered, though it may found an action for damages for not accepting the goods. If however there was a clear and unequivocal contract made by the defendant with the plaintiffs, through the agency of Richardson, to purchase the scythes, and after-wards the plaintiffs sent them pursuant to this agreement, and the defendant or his agent, Parkhurst, did not give distinct notice that he did not receive them on account of the plaintiffs, but of another person, the law will presume that the scythes were received as of the plaintiffs; arid this will const! • tute a delivery, which completed the sale and rendered the defendant liable. The jury therefore would consider the evidence in regard to such alleged contract, and if such contract was satisfactorily proved, it would strengthen the presumption, that the goods were delivered and received on the plaintiffs’ account. But although there may have been a contract by the defendant to purchase two dozen scythes of the plaintiffs, yet if he did not in fact, or by reasonable presumption, receive these scythes pursuant to that bargain, the sale was not complete. If Simons, the plaintiff’s agent, had left it doubtful at the time of his delivering the scythes at the defendant’s store, whether they came on the plaintiffs’ or on Spaulding’s account, the jury would consider whether in fact the scythes were received by Parkhurst, the defendant’s agent, on the plaintiffs’ account or on Spaulding’s. If the testimony of Parkhurst and the book of entries were believed, the scythes were received on Spaulding’s account. If in fact they were so received and were credited to Spaulding, and this was seasonably known to the plaintiffs, if they did not give seasonable notice to the defendant that they did not intend to deliver them on Spaulding’s account but on his (the defendant’s) account, so that he might have returned them, then there was no delivery pursuant to the alleged contract, and the sale was not complete.</p> <p>A verdict was returned for the defendant, which the plaintiffs moved to set aside on account of misdirections in point of law.</p>

<p>Writ of entry, wherein the demandant counts upon her own seisin within thirty years and a disseisin hy the tenants.</p> <p>The cause was tried before Shaw C. J. By his report it appeared, that the demandant claimed under a deed from her brother Nehemiah Foster, dated August, 30, 1827, in common form, with warranty, for the consideration of $ 854-68. The grantor was in failing circumstances at that time. If this deed was valid, the demandant was entitled to recover.</p> <p>The tenants claimed in the character of creditors of the grantor, and by virtue of levies of several executions against him upon the demanded premises ; and they alleged that the deed to the demandant was fraudulent and void as against creditors of the grantor.</p> <p>J. R. Adams, who.was one of the attesting witnesses, testified that he drew the deed and witnessed the execution of it by the grantor, who took it away, but that he saw no money paid. It was then insisted by the counsel for the tenants, that as they had shown a prima facie title by the levies, the burden of proof was upon the demandant to show a consideration paid, by other evidence than the deed itself. But it was ruled, that if it was proved that the deed was duly executed, delivered and recorded, notwithstanding the grantor was in failing circumstances, the deed itself was prima facie evidence of a consideration, and the burden of proof was upon the tenants, in the first instance, to show a want or inadequacy of consideration, or to impeach the instrument as a deed made to defraud, defeat or delay creditors.</p> <p>The tenants offered the testimony of John P. Robinson, an attorney and counsellor of this Court. He stated that he knew nothing in regard to this conveyance, except what the grantor communicated to him in a conversation and consultation held with him in relation to making this conveyance. It was objected that this was a privileged communication, made to him as a professional man in relation to a conveyance, and that he could not be called upon to disclose it to the injury of any one claiming under such conveyance. On the preliminary examination, Mr. Robinson testified that he was admitted to the bar and went to Lowell to settle in the practice of his profession, in July 1827 ; that his own office not being in readiness, he went to pass the day in the office of Mr. Glidden, who was absent; that Foster, the grantor, applied to him there, and asked him if he kept the office, or if he was a student; to both of which he answered no, but he told Foster that he was a lawyer. Foster then stated the circumstances and consulted him at length upon the subject; and he gave Foster some opinions. Both considered that he was acting professionally, and Mr. Robinson considered himself entitled to a fee, but he never was paid. Foster, when he went away, promised to return in the afternoon, but the witness did not see him again.</p> <p>Upon this statement it was ruled by the judge, that the communications made by Foster were privileged, under the rule which prohibits a legal adviser from disclosing facts communicated to him by his client, in the course of professional conversation ; and the testimony of Mr. Robinson to these facts was rejected.</p> <p>The tenants then proposed to prove that other fraudulent conveyances were made by the grantor, at or about the same time with the conveyance in question. It was ruled that such evidence was admissible, provided it was connected with other evidence to show that the demandant knew of the fraudulent intent with which these conveyances were made, and participated in it. But unless some evidence was offered to show that the demandant knew of these particular conveyances, oi of a general purpose of the grantor to convey away his property to the injury of his creditors, the evidence of other conveyances was not admissible.</p> <p>A verdict being returned for the demandant, the tenants moved to set it aside, on the ground that the foregoing decisions were incorrect.</p>

<p>The words u the treasurer of the masonic lodge who robbed the treasury of a sum of money and bought a farm with it,” impute only a breach of trust, and are not in themselves actionable.</p> <p>The same words spoken after the office of treasurer had ceased to exist, concerning a person who had been treasurer, were held not to be actionable on the ground of having been spoken of him in relation to an office of honor or profit.</p>

<p>A ship having sailed on a whaling voyage 11 from New Bedford and back to New Bedford/7 on her return arrived at a bank without the harbour of New Bedford, but within the limits of the town and port of New Bedford, where she grounded and where she remained, without casting anchor or furling her sails, for some hours, when she floated and was brought into the harbour. It was held, that the voyage was not completed until the ship was brought into the harbour, and con eequently that the earnings of a seaman on board were contingent, and therefore not attachable by the trustee process, while she remained without the harbour.</p>

Assumpsit for money had and received, to recover the amount of the plaintiff’s earnings on a whaling voyage, as a mariner on board the ship Hector, of which the defendants were the owners. Plea, the general issue. At the trial before Morton J., it was proved that the plaintiff had performed the voyage, and that by his contract with the defendants, he was to receive one sixty-fifth part of the ship’s earnings.

<p>Assumpsit to recover the amount of the plaintiff’s earnings as cooper of the ship Alliance, on a whaling voyage from Newport to the Pacific Ocean.</p> <p>At the trial, before Morton J., the defendant produced a written agreement, not under seal, dated December 31, 1824, between Christopher Hammond, his wife Lovey Hammond, and the plaintiff, her minor son, of the one part, and the defendant, of the other part, in which it is recited, that the plain tiff had for some time past lived with the defendant as an ap prentice to learn the trade of a cooper, and that indentures have been made, but not signed,- by the parties, and it is stipulated that the plaintiff shall perform a voyage round Cape Horn in the ship Alliance, and shall “perform the duty he ships to perform,” according to the best of his skill and judgment, and that on the return of the'ship the defendant shall receive the plaintiff’s earnings on the voyage ; and the defendant agrees to relinquish to the plaintiff all demands which he now has against him, and to furnish him with suitable outfits, which are to belong to the plaintiff; and should the ship return before the plaintiff arrives at the age of twenty-one, he is to be free from his apprenticeship. The ship returned in June 1828, the plaintiff being then a little over twenty years of age. It was admitted that the defendant received the amount of the plaintiff’s earnings on the voyage, viz. $ 576.60, and that he furnished the plaintiff his outfit.</p> <p>Evidence of a custom, as stated in the preceding case of Randall v. Rotch, was offered and rejected.</p> <p>A default was entered by consent, subject to the opinion of the whole Court.</p>

<p>A father bound his minor son an apprentice until he should come of age, by an indenture executed by the father, the minor, and the master, securing to the minor the benefit of his earnings. The minor afterwards sailed on a whaling voyage, * with the consent of his father and master, and the indenture was discharged by a deed executed by the father and master. An order bearing the same date with this discharge was drawn by the minor and his father in favor of the master, upon the owners of the ship, for a part of the minor’s earnings on the voyage, and another order was drawn about the same time by the minor alone, for all his earnings on the voyage, in favor of another person, and the father never made any claim to them. It was held, that the minor’s earnings on the voyage were not liable to be attached on a trustee process sued out by a creditor of the father.</p>

The supposed trustee set forth in his answer, an indenture by which Bliss assigned all his property, real and personal, to the respondent, in trust for the payment of the creditors of Bliss, who should become parties to the indenture; and the respondent stated, that the amount of the claims of the creditors, who agreed to and signed the instrument before the service of this process upon the respondent, was $ 565 ; that the personal property was of the value of $ 270 ; and…

<p>This was a complaint founded on St. 1825, c. 89, entitled “ an act providing further remedies for landlords and tenants,” originally brought and tried before a justice of the peace. At the trial before the justice, upon the general issue, the complainant recovered judgment for.possession ; from which judgment the defendant appealed. After duly entering his appeal in the Court of Common Pleas, he was defaulted; whereupon the complainant moved the court for judgment, not only for possession, but for rent in arrear, intervening rent, damages and costs.</p> <p>The complainant, in order to show the amount of rent and damages to which he was entitled, offered to prove the value of the demanded premises, that he had owned them for several years, subject to the life estate of Noah Perry, who died in February 1830, that at the death of Noah the defendant was in possession,' and that he had ever since kept the complainant out'; that while the defendant was in possession and after the death of Noah, there were lying on the premises six tons of chestnut timber, and three or four cords of wood, which had since been carried away ; and that some damage had been done to the house and shed standing on the land.</p> <p>Williams J. being of opinion that the complainant was not entitled to recover judgment in this process, for rent and damages, rejected the evidence, and ordered judgment to- be entered for the complainant for possession and costs only ; to which opinion and judgment the complainant filed exceptions Chapin for the complainant.</p>

Assumpsit brought by John Gilmore and his son John Dean Gilmore, against George Wilbur and Albinus Wilbur The declaration contained two counts in indebitatus assumpsit, one, on an account annexed to the writ, for various parcels of wood sold and delivered, the other, for money had and received.

<p>This was an action of debt for rent from June 3, 1823, to December 3, 1824, and from June 3, 1825, to December 3-, 1829, at $75 a year.</p> <p>It was agreed that the premises for which the rent was claimed, were, on May 6, 1822, the property of Uriah Brown-ell, who, on that day, by an instrument under seal, demised the same to one John Randolph for the term of twelve years from that date, Randolph yielding rent therefor at the rate of $ 75 a year, payable semi-annually. The defendant purchased all the right which Randolph had in the premises, and afterwards the plaintiffs purchased all the right which Brownell had therein.</p> <p>If the defendant was bound to pay the amount of rent reserved in the indenture of lease, he was to be defaulted and damages to be assessed accordingly ; but if he had a right to show that the premises weré not of that annual value, a new trial was to be granted and damages to be assessed by the jury.</p>

<p>Assumpsit for money had and received, and money paid. At the trial, before Shaw C. J., it appeared, that the defendant gave the plaintiff his note, dated March 24, 1825, for $ 200 ; that the plaintiff transferred it to Branch By rom, indorsing it to him “ without recourse ” to the plaintiff; that Byrom commenced an action as indorsee against the defend ant, which was successfully defended on the ground of usury between Ramsdell and the defendant in the creation of the note; and that after the termination of that suit this action was brought.</p> <p>On the trial of the present action the plaintiff offered to show, that a part of the consideration of the note for 200 dollars was one or more notes which the plaintiff, on the 24th of March 1825, held as promisee or indorsee against the defendant ; and he claimed to recover the amount of the notes thus given up.</p> <p>The defendant objected to this evidence, but it was admitted, and a verdict thereupon returned for the plaintiff. If this evidence ought not to have been received, a new trial was to be granted.</p>

<p>Assumpsit. The declaration contained a special count on the following agreement in writing, dated New Bedford, March 20, 1826 :—cc Whereas Manasseh Kempton has this day indorsed for Thomas T. Churchill the following notes, all payable in two years, viz. (describing five notes,) and I the subscriber having, for good reasons and considerations, agreed to become security for one fourth part of the whole of the foregoing sums, I do hereby agree and bind myself to sustain one fourth part of all the loss which shall happen to said Manasseh by reason of his indorsement of said notes ; that is to say, if he, said Churchill, should fail to pay said notes, or parts thereof, and said Manasseh should be compelled to pay the same, or any part thereof, I do hereby agree to pay one fourth part of said notes, if he should have the whole to pay, or such parts thereof, as said Churchill shall fail to pay, and the same proportion to be paid and sustained by me, as said notes shall become due and remain unpaid by said Churchill. Timothy G. Coffin.”</p> <p>At the trial, which was before Morton J. upon the general issue, the plaintiff produced the notes, signed by Churchill and indorsed by the plaintiff, and proved that they had been paid by the plaintiff after a demand on Churchill as maker and notice to the plaintiff as indorser.</p> <p>The defendant contended that the plaintiff was not entitled to recover, unless he proved that Churchill, at the time when the notes became due, was unable to pay them; but this objection was overruled.</p> <p>The defendant then offered to prove, that at the time when the notes became due, Churchill had property sufficient to pay all of them, and that two or three years afterward the plaintiff attached the property of Churchill to secure the payment of other debts due from him to the plaintiff; but the judge, being of opinion that this would be no defence to the action, rejected the evidence.</p> <p>The jury returned a verdict for the plaintiff, and the defendant moved for a new trial.</p>

<p>On a promissory note payable at a particular house, an actual or virtual demand must be made at such house, and notice of non-payment there must be given to the indorser, in order to charge him ; and notwithstanding the maker's insolvency and absence from the commonwealth, unless the note is at such house on the day when it becomes due, in the hands of some one authorized to receive payment, no demand, actual or virtual, can be made.</p>

<p>Assumpsit. The following facts were agreed to by the parties. On November 20, 1826, the defendant gave the plaintiff a writing as follows : — “ New Bedford, Nov. 20, 1826. This is to certify, that I, the subscriber, do hereby agree to be responsible and pay to Messrs. Babcock and Allen for whatever goods have been or may be delivered to Thomas C. Case. John'Bryant. (Security for one year).” After the above date and before July 17, 1827, the plaintiffs (Babcock and Allen) delivered to Case goods to the amount of $115.21, and on the day last named took of Case his negotiable note for that amount, payable on demand, with interest. This note is wholly due and unpaid. The writ is dated February 16, 1829.</p> <p>If, in the opinion of the Court, the plaintiffs could not, upon these facts, maintain this action, they were to become non-suit ; otherwise, judgment was to be rendered in their favor.</p>

<p>Trover for the conversion of a horse. Trial before Morton J. upon the general issue.</p> <p>It appeared that in July 1829, the defendant hired a horse and gig of the plaintiffs, who kept a livery stable, to go from New Bedford to Fall River and back to New Bedford. The defendant took the horse and gig in the morning and returned in the evening. Immediately after the return of the horse to the stable, it was discovered that he was sick ; and he continued sick about three days and then died. The defendant, upon his return, told the plaintiffs that he had been further than he expected to have gone, and that he had travelled to Fall River, thence to Warren and Bristol, and from Bristol through Westport to New Bedford; to which the plaintiffs made no objection. On being asked what was to be paid for the use of the horse and gig, the plaintiffs desired the defendant to settle with or pay their agent, of whom the defendant had engaged the horse and gig. The defendant stated to such agent the places to which he had been and the distance, and payment was received for the whole distance so stated, but there was evidence tending to show that the actual distance was greatei than the defendant represented it. Witnesses called by the plaintiffs testified that in their opinion the death of the horse was occasioned by hard driving in very warm weather.</p> <p>The defendant contended, that although the original contract between the parties was for the hire of the horse and gig to go from New Bedford to Fall River and back ; and although the defendant, in going from Fall River to Warren, Bristol, &c., had deviated from the terms of the original contract, yet inasmuch as. on his return to New Bedford he had informed the plaintiffs of the route he had in fact travelled, and no objection was then made by the plaintiffs to his having gone further than he was permitted by the terms of the original contract; and especially as the plaintiffs, after being informed of the route taken, had received payment for the drive upon that route as upon a contract of hire : — the receipt of payment under such circumstances would warrant the jury in inferring a subsequent assent, on the part of the plaintiffs, to the use of the horse by the defendant, in going from Fall River to Warren, &c., which assent, if duly proved, would justify him in going that route. And if such assent were given, although the death of the horse might have happened, either from hard driving, or from the defendant’s giving him food or water improperly, during any part of that route, the defendant would not be answerable, in this form of action, for such abuse of the property confided to him.</p> <p>But the judge informed the defendant’s counsel, that he should rule this part of the case against him ; and that he should instruct the jury, that if they should believe that the death of the horse happened from any abuse or improper treatment of the same by the defendant in going from New Bedford to Fall River, or if the horse, at the time of his being let to the defendant, was diseased and unable to perform the journey from New Bedford to Fall River and back, and the death happened from such disease, their verdict must be for the defendant; but if they should believe that the death happened from any abuse or improper treatment by the defendant after leaving Fall River and going thence to Warren, Bristol, &c., and thence to New Bedford, or if the horse, at he time of his being let, was diseased, but able to perform the journey from New Bedford to Fall River and back, but not able to perform the journey travelled by the defendant, their verdict must be for the plaintiffs for the value of the horse in the condition he was in at the time of leaving Fall River.</p> <p>The defendant thereupon consented that the plaintiffs might take a verdict, with the view of having the point above ruled against the defendant, determined by the whole Court.</p>

Assumpsit by two copartners in the business of victuallers and butchers in the town of Troy, to recover the sum due on an account for butcher’s meat supplied to the defendant from January 1828 to December 1829.

<p>A levy on the “westerly half” of a dwelling-house, “ with the land the westerly half of said house stands on, and the part of the garden oack of the said house, the width of the house,” to a bound specified, was held to be a levy by metes and bounds, and to be sufficiently definite as to the line dividing the house.</p> <p>A delivery of a deed to the register of deeds by the grantor for the use of the grantee, to be recorded, and the grantee's subsequent assent to the same, is equivalent to an actual delivery to the grantee, and the deed will prevail against an attachment by a creditor of the grantor made after such assent.</p>

<p>Writ of dower. The following facts were agreed to bj the parties.</p> <p>Elijah Réed, the late husband of the demandant, died seised in fee of the land described in the writ. On August 8, 1816, he made his last will, containing the following provisions : — “I give and bequeath to my beloved wife Lucy Reed, and Alice Reed my daughter, one half of my dwellinghouse where I now live, the southerly part of said house, and the north buttery in said house, during my wife’s natural life. Also to my beloved wife I give and bequeath one half of my indoor moveables. I also give and bequeath to my beloved wife one cow, which I order my sons Solomon and Elijah to keep for her, or some other in the room of it, free from any expense to her during her natural life. Also I give and bequeath to my wife and my daughter Alice Reed, one heifer a year old last spring, and hereby order my two sons Solomon and Elijah to be at one half of the expense of keeping said heifer for their mother.” 'The will was proved in September, 1816. Soon after the death of the testator, the demandant selected a cow from the stock on the farm, and that cow, or another instead of it, has ever since been kept on the farm for her by her sons Solomon and Elijah, and she has had the use of it ever since, until within a year past, when she sold it. A heifer was provided for her and Alice by Solomon and Elijah, and was kept by them for their mother until it died, which happened soon after the probate of the will. The demandant has always since the death of her husband, been in the possession of the indoor moveables. She has always lived in that part of the house which was devised to her, and Alice has lived with her. It appeared by the records of the probate court, that in March 1829, the judge of probate appointed a committee to set off by metes and bounds and define that part of the dwellinghouse of the testator unto his widow and Alice, which was devised to them for their use during their natural life, together with the cellar, privileges and appurtenances ; and in April 1829, the committee made a return showing their performance of the duty required of them. The real estate of the testator was appraised, soon after his death, at $ 10,529, and the personal at $ 647 ; his debts amounted to a sum between $ 3000 and $ 3600 ; the real estate given to Alice was worth $ 900 ; one half of the indoor moveables was worth $ 95 ; and the fee simple of the whole dwellinghouse was worth between $ 1300 and $ 1400. A demand was made upon the defendant, on July 5, 1830, to assign dower to the demandant.</p> <p>On the foregoing facts, or such of them as would be admissible in evidence on a trial before a jury, and on such inferences as may be legally made from them, the case was submitted to the Court; and if in the opinion of the Court, the demandant was entitled to recover, the defendant was to be defaulted ; but otherwise the demandant' was to become non-suit.</p>

<p>This was a writ of entry brought by the demandants as a corporation, to recover about eighty acres of land. The first count alleges that James Godfrey was seised of the demanded premises on May 27, 1823, and that he then conveyed the same to Lemuel Perry, Jacob Shepard and Thomas Braman junior, selectmen and overseers of the poor of Norton, to the use of the town, whereby, &c. In the second count the demandants allege their own seisin within thirty years, and a disseisin by the tenant. Plea, that the tenant did not disseise, and issue joined thereon.</p> <p>On the trial, before Shaw C. J., it appeared that Godfrey was an inhabitant and had his legal settlement in the town of Norton ; that Perry, Shepard and Braman were selectmen and ex officio overseers of the poor of the town ; that on February 5, 1823, they presented a complaint to the judge of probate, setting forth that in their judgment, Godfrey, by excessive drinking and idleness, was wasting his property, whereby he and his family were in danger, of coming to want; and praying that he might be put under guardianship. Upon this complaint an order of notice was issued, but no other proceedmgs were had, except that the complaint was several times continued at the request of Godfrey or of his counsel and friends, and with the consent of the complainants.</p> <p>On May 27, 1823, Godfrey executed the deed relied upon by the demandants, being a warranty deed in common form, by which, in consideration of $ 1500, he conveyed the premises to Perry, Shepard and Braman, selectmen and overseers of the poor, (not mentioning heirs,) to hold to Perry, Shepard and Braman in trust for the use of the inhabitants of Norton, or to their successors in office, in trust for the same use for ever, with covenants of seisin and warranty to Perry, Shepard and Braman and their successors in office; provided that if Godfrey should relieve, provide for and comfortably maintain himself, his wife and minor son during his minority, and indemnify the town against any cost and expense therefor, then the deed, as also an obligation to Perry, Shepard and Braman, to the like effect, should both be void.</p> <p>Godfrey executed a bond of like date, by which he bound himself in the sum of $ 1500 to Perry, Shepard and Braman, selectmen and overseers of the poor of Norton, to be paid to them, their successors in office or assigns, to the use of the town, conditioned that if Godfrey should relieve and support himself, &c. (as in the deed,) the bond should be void.</p> <p>Before the time of the conveyance Godfrey had been reputed to be a man of large property; but at that time his affairs were much embarrassed, and his property, independently of the mortgaged premises, was not sufficient to pay his debts.The selectmen of Norton were induced to relinquish the proceedings which they had commenced before the judge of probate with a view to have Godfrey put under guardianship, solely in consequence of his consenting to give the abovementioned bond and mortgage to secure the town against liability for the support of himself and family. During those proceedings, Shepard Leach remonstrated repeatedly with the selectmen against putting Godfrey under guardianship, on the ground that he was a man of ample property, and that the town was in no danger ; which, as he testified, he then verily believed.</p> <p>Leach brought actions against Godfrey and recovered judgmeats in June and September 1823, on demands, a large part °f which was due prior to the date of the mortgage under which the demandants claim, and his executions were levied in October 1823, upon real estate, including the demanded premises. Leach conveyed the demanded premises to Leonard, the tenant, by a quitclaim deed in common form, duly executed, dated April 1, 1829. The tenant took the deed with notice of the bond and mortgage under which the de mandants claim.</p> <p>The question reserved for the Court was, whether the do mandants were entitled to recover ; and judgment was to be rendered on nonsuit or default, or a new trial' was to be had, as the Court should order.</p>

Action of slander. The first two counts in the declaration charged the defendant with having uttered, at a public town-meeting, the words, “ Bradley has put in two votes.” The defendant pleaded the general issue only. At the trial, before Putnam J., these words were proved to have been spoken as alleged. The defendant proved, that at the time of uttering them he was one of the selectmen of Brookline, and that he was requested to see that no one voted improperly.

<p>An executor is bound to make oath to the truth and correctness of his accounts, and to answer such specific interrogatories as may be put to him by the adverse party touching the subject matter of the accounts 5 but he cannot be admitted, upon his own motion, as a competent witness generally to his accounts and to the items and particulars of them, except to support small charges not exceeding forty shillings.</p>

<p>After a trustee in a process of foreign attachment has put in his general answer and has filed answers to such interrogatories as may have been propounded to him by the plaintiff, and before final judgment thereon, it is competent for the court to receive a new and additional answer, upon the trustee’s own motion, without a new interrogatory.</p> <p>Where such additional answer is made, the plaintiff should be allowed to file new interrogatories.</p>

Assumpsit upon an account for labor, &c. Trial before Putnam J. upon the general issue. The plaintiff produced a transcript of his account, copied from his day-book and leger by a witness and sworn by the witness to have been copied correctly, which was admitted in evidence, it having been proved that the original books had Deen accidentally burnt.

<p>Petition for a review by a trustee.</p>

<p>A promissory note given to a feme covert for her separate use, for the consideration of her distributive share in an intestate estate, becomes immediately the property of the husband.</p>

<p>This was an action on the case against the defendants, alleging negligence on the part of their servant, in driving a four-horse sleigh, in the highway in Waltham, by means whereof the plaintiff was run over and injured. The cause was tried before Putnam J. and a verdict was found in favor of the plaintiff. A motion was made to set aside the verdict, on the ground of misdirection, and also because it was a verdict against the weight of evidence.</p>

<p>A testator devised to his widow the profit and benefit of one half of his real and personal estate, during her life, and devised the same estate, after her death, to his children, two fifteenths to each of his sons, and one fifteenth to each of his daughters, and appointed one of his sons executor. The executor gave his bond to the widow, conditioned to furnish her with certain articles towards her support, in consideration of her conveying to him her interest in the real estate. By an instrument under seal, executed by several of the children, and assented to in writing by the widow, it was agreed that the personal estate in securities which was left to the widow should be placed in the hands of the executor, in trust that a part of the income should be applied to the support of the widow during her life, and the balance be divided every year equally between the parties to the agreement, and that at the decease of the widow the same personal estate, with the interest accrued thereon, should be divided among them in the same manner as if their father had di,ed intestate. In an action against the executor, after the death of the widow, by a son who had not executed the agreement, to recover his share of the personal estate and interest, it was held, that he was entitled to two fifteenths of the capital and of the interest which had accrued after the death of the widow.</p> <p>Held also, that the executor could not charge the funeral or other expenses, on ac count of the widow, against this fúnd and the interest which had accrued subsequently to her death.</p> <p>Held also, that in such action the executor was not entitled to retain any part of the same personal estate as a compensation for collecting in the assets of the testator, for it must be presumed that he received a compensation for such services upon a settlement in the probate court; but a commission for investing the capital and keeping it at interest during the life of the widow, and collecting it in afterwards, was allowed; also a commission on the interest which accrued after the death of the widow and was collected by him.</p>

<p>It is not only the right but the duty of the city government of Boston, so far as they may be able, to remove every nuisance which may endanger the health of the citizens.</p> <p>And they have necessarily the power of deciding m wnat manner this shall be done, and their decision is conclusive, unless they transcend the powers conferred on them by the city charter.</p> <p>Police regulations to direct the use of private property so as to prevent its being pernicious to the citizens at large, are not void although they may in some measure interfere with private rights without providing for compensation.</p> <p>The property of a private individual may be appropriated to public use in connexion with measures of municipal regulation, and in such case compensation must be provided for, or the appropriation will be unconstitutional and void.</p> <p>By an indenture between the town of Boston and the Boston Mill Corporation, this corporation granted to the town a certain proportion of a tract of land covered with water, u excepting the mill creek and such other canals as may be agreed to be kept open for the passage of boats;” and by a subsequent indenture between the same parties it was agreed, that the town might put a covering over part of the creek (or canal), “ provided only that no interruption or impediment shall be made or permitted below said covering, to boats or rafts passing through or into said canal.” It was held, that these provisions did not amount to a license to the abutters to navigate the creek.</p> <p>The creek however was in fact kept open for the purpose of boat navigation, and it was held, that although there was an implied license to every one so to use it, yet that this was not a perpetual license which could be pleaded as a grant or a dedication to the public; and that no use of the creek while it was permitted thus to remain open, would give to any individual a prescriptive right.</p> <p>It was also held, that an abutter could not gain any prescriptive right by using the creek, while thus kept open, for the purposes of a drain, because such use was not adverse.</p> <p>In an action of the case for an injury caused by a public nuisance, it is not a sufficient allegation of special damage, to aver that by reason of the nuisance the tenant of the plaintiff's messuage refuses to pay his accustomed rent, for the tenant is liable to pay the rent, so long as he occupies, and can claim no re duetion on account of any unlawful obstruction caused by a third party.</p> <p>Nor is it sufficient to aver that the tenant threatens to quit in consequence of the nuisance, for the plaintiff cannot recover quia timet.</p>

<p>If a bond taken by a justice of the peace, of one accused as the father of a bastard child, is duly returned to the next Court of Common Pleas, and the complaint is entered on the clerk’s docket at the same term, and the child not being then born, a continuance is entered on the docket, the bond is thereby well continued, within the meaning of St. 1785, c. 66, $ 2, and it is not necessary that the continuance should be entered on the bond itself.</p>

<p>Where a creditor who has attached the property of his debtor, is allowed (under St 1823, c. 142) to defend against the suit of a prior attaching creditor, the plaintiff may give in evidence the admissions of the debtor, even if made since the subsequent attaching creditor took upon himself the defence.</p> <p>In the case of a verdict given for too large a sum, the excess, if ascertained, may be remitted and judgment be rendered for the balance $ but where the excess was uncertain and considerable in amount, a new* trial was granted.</p>

<p>Where goods attached by an officer on mesne process, are delivered to a keeper upon his accountable receipt, and by him are restored to the debtor, and are after-wards demanded of the officer upon the plaintiff's execution, but not until after the expiration of thirty days from the rendition of the judgment, the officer is not liable to the plaintiff for not delivering the goods, the attachment having been dissolved by lapse of time.</p> <p>But where the goods so attached, receipted for and restored, were tools of trade, and the debtor brought an action of trespass against the officer for attaching them and gave in evidence the value of the goods and recovered judgment therefor, and the plaintiff, in pursuance of his agreement to indemnify the officer for making the attachment, defended the action of trespass and satisfied the judgment, it was held that the officer was liable to the plaintiff for the goods, for by the judgment and satisfaction the property became vested in the plaintiff.</p>

<p>Where a freeholder to whom a warrant was directed for calling a school district meeting made a return thereon, that 11 he had warned all the legal voters” in the district ({to meet at the time and place and for the purposes within mentioned/ the return was held to be insufficient, because it did not specify the mode in which the notice had been given to every voter, nor state that it had been given any length of time before the hour appointed for the meeting.</p> <p>A town can execute its power to form school districts only by a geographical division of its territory, and the districts must be so constituted as to include all the inhabitants of the town: — so that where a town, after defining an east and a west district, by geographical lines, proceeded to direct that certain individuals, by name, should have liberty to send their children to schools in adjoining towns, “ all other inhabitants of the town to belong to the centre school district in said town,” the districting was held to be invalid on both these grounds.</p> <p>It seems, that in general a town is not liable to an action by an inhabitant of a school district for money collected on an illegal assessment upon the district, but the money, when paid over to the town treasurer, is received by him as the agent of the district.</p>

<p>Writ of entry. Upon a case stated it appears, that the tenant, being owner of the demanded premises, mortgaged the same by his deed of March 3, 1820, to his uncle, Moses Brown, to secure the payment of the mortgagor’s note of that date to the mortgagee, for $ 3500 and interest; on which only two years’ interest has ever yet been paid. On October 22, 1324, the mortgagee made his last will, which in March, 1827, the testator being then deceased, was duly proved.</p> <p>The will contains the following bequest : — “I give, bequeath and devise unto Joseph Brown, son of my nephew Moses Brown of West Newbury, his heirs, executors, administrators and assigns, a certain mortgage from my said nephew to me of real estate, (describing it,) to secure the payment of a certain promissory note for $ 3500, and also the said note and all my right and interest in the premises mortgaged, upon the express condition however, that the said Joseph shall permit his father to remain in possession of the mortgaged premises during his life ; and upon the further trust and condition, that he shall also comfortably and suitably maintain during their lives, the two sisters of his father, who are .deranged in mind.” The tenant continued in possession of the demanded premises.</p> <p>Merrill commenced an action against the tenant, and on January 30, 1829, attached the demanded premises, and in September 1829, he recovered judgment for $802.24, and levied on the demanded premises as the freehold estate of the tenant during his life. Formal seisin was duly delivered by the officer to Merrill, but the tenant has ever since remained in possession of the land.</p> <p>The land, at the time of the decease of the testator and ever since, has been of much less value than the amount of the debt for which the mortgage was given.</p> <p>Joseph Brown is yet under twenty-one years of age. The mortgage and note have not been assigned to him by the executors of the will, nor is it proved that he has ever accepted the devise.</p> <p>A nonsuit or default was to be entered, as the Court should direct.</p>

<p>The following facts were stated by the parties.</p> <p>James Prince (of whose last will the plaintiffs, Doane and another, were executors,) was collector of the customs for the district of Newburyport for a long time previous to the 10th of January, 1829, at which time his commission expired. He was succeeded in that office by Currier, who received his appointment on the 22d of January, 1829, and remained in the office until removed therefrom, of which he received notice on the 22d of June, 1829. The defendant was appointed to succeed Currier, and on the 26th of the same June he gave notice of that fact to Currier, and suggested his desire to await the reasonable convenience of Currier, but that he was ready to enter on the duties of the office and to receive the papers, books and public property. The 1st of July following was fixed on for that purpose, and on that day Currier surrendered the books, &c., and the defendant then entered on the duties of the office.</p> <p>When Currier was appointed collector, he received from Prince certain bonds which had been taken by Prince as collector, before the term of his office had expired. A part of these bonds, amounting to $ 19,654-10, were not due, and remained unpaid at the time when Currier was removed from office. The amount of bonds for duties taken by Currier, was $ 39,651-67. These bonds, together with those above mentioned for 19,654-10, amounting in the whole to $ 59 305-77, were delivered to the defendant at the til re when he took possession of the office.</p> <p>The commission allowed by law to the collector of the district of Newburyport, is three per cent on all moneys received on account of duties on importations and tonnage.</p> <p>When Currier entered upon the duties of his office, and received the books and papers, he gave Prince a receipt promising to pay over to him when collected, one and a half per cent upon the amount of the bonds then delivered to him by Prince. And when Currier delivered the books and papers of the office to the defendant, he took from him a receipt as follows : — “ District and Port of Newburyport, July 1, 1829. I have this day received of S. H. Currier, Esq. the bonds of which the foregoing is a schedule, and for which, amounting to $ 59,305;77, I promise to account according to law, when collected. Samuel Phillips, Collector.”</p> <p>Currier held the office of collector till the 1st of July, and performed the duties and received the fees of office. The de fendant received no fees of office and performed no official duty before that day.</p> <p>The defendant collected the amount of the bonds delivered to him, and received the commission of three per cent thereon.</p> <p>The plaintiffs, Doane and another, claim of the defendant one and a half per cent on the sum of $ 19,654-10, with interest from the time when it was received by the defendant.</p> <p>The plaintiff, Currier, claims of the defendant three per cent on the sum of $39,651-67. He further claims the sum of $ 200 for making up the usual accounts and abstracts of the office to the 1st of July. The same number (about forty) would have been required of him had he relinquished the office on the 26th of June, and the same would have been required of the defendant from the 26th of June to the 1st of July.</p> <p>A nonsuit or default was to be entered in either or both . actions, according to the opinion of the Court upon the foregoing facts.</p>

<p>A town has authority to provide for the support of a public clock, and to assess the expense thereof upon the inhabitants of the town.</p> <p>Where upon the question whether a town would make the necessary repairs upon a town clock, a vote was passed to refer that matter to the selectmen, it was held, that the selectmen were authorized to determine not only whether the clock should be repaired, but also what repairs should be made, and that they were not restricted to inconsiderable repairs, such as had previously from time to time been made.</p>

<p>Bill in equity. The bill sets forth, that on the 13th of October, 1823, Nathaniel Safford was the owner of one sixth part of the ship Factor ; that he was then indebted to John Dike in the sum of $ 3,000 ; that he then conveyed to Dike the sixth part of the vessel and of her" earnings, as collateral security for the debt; that on the 12th of January, 1826, Dike executed and gave to Nathaniel a writing, wherein he acknowledged he had received the conveyance as collateral security, and promised to relinquish to Nathaniel his interest in the property thus conveyed, upon payment of the debt; that on the 7th of April, 1826, Nathaniel, by his deed of assignment of that date, more formally confirmed the first conveyanee, and conveyed the sixth part' of the vessel and of hei earnings to Dike, to hold the same upon the special trust to apply them to the payment of the debts mentioned in the deed, and, for that purpose, upon the incidental trust to sell the property at his discretion, and having made such application, to pay over the surplus to Nathaniel, — under and by virtue of which promises Dike became trustee under the deed for the purposes mentioned ; that on the same 7th of April, Nathaniel drew his order on Dike, directing him to pay over to Haskell, the defendant’s intestate, the balance that might remain in his., hands belonging to Nathaniel after the final settlement between Nathaniel and Dike, which order Dike accepted ; that under these conveyances Dike took possession of the vessel and employed her in making voyages until the 24th of September, 1827 ; that he then made known to Nathaniel, Haskell and the plaintiff, his purpose of selling the sixth of the vessel, under the trust, for the more speedy payment of his demand, unless a part of the demand should be then paid to him or assumed by the plaintiff and Haskell; that the plaintiff and Haskell were both creditors of Nathaniel, and that to prevent the sale of the vessel, and to induce Dike to continue to employ her, it was, on the 24th of September, 1827, agreed between Nathaniel, Haskell, the plaintiff and Dike, that Haskell and the plaintiff should advance and pay to Dike, on his demand secured as above mentioned, the sum of $ 1700, and that Dike should continue to employ the vessel and hold the same and her earnings, upon trust to apply the same, first to the payment of the residue of his demand against Nathaniel, then to the payment of the $ 1700 advanced by Haskell and the plaintiff, then to the payment of Haskell’s debt against Nathaniel, and then to the payment of the plaintiff’s debt against Nathaniel ; that in pursuance of this agreement the plaintiff and Haskell paid Dike ijp 1700, by giving him two notes, one for $ 500, signed by the plaintiff as principal and Haskell as surety, the other for $ 1200, signed by Haskell as principal and the plaintiff as surety ; on which notes Dike obtained the money by indorsing them to the Exchange Bank; that by virtue of the premises, Dike became the trustee of the plaintiff and Haskell, of the sixth part of the vessel and her earnings, upon the trusts above mentioned, which trusts arose under the deed of Nathaniel; that Dike continued to hold the vessel, and to employ her and receive her earnings upon these trusts, until the 8th of July, 1829 ; that at that time the residue ot his demand was fully paid ; that on that day Dike became insolvent and executed an assignment of his property by deed for the payment of his debts, wherein he expressly excepted the sixth part of the vessel, then at sea, and accruing earnings, from the assignment, reciting that he held the same in trust for the plaintiff and Haskell, as collateral security of demands; that on the same day Dike, without the consent or knowledge of the plaintiff, sold and conveyed the sixth part of the vessel and earnings then accruing to Haskell, without any consideration therefor, with full notice to Haskell of the trust upon which Dike held the property, and Haskell then agreed in writing with Dike and the plaintiff, to hold the property upon the same trust upon which Dike had held it, namely, to pay the debt of $ 1700 ; that by virtue of the premises, Haskell became, under the conveyance from Dike, trustee of the plaintiff, and of the property, in trust to pay that sum of $ 1700 ; that about the 1st of August, 1829, Haskell died, not having paid that sum nor executed his trust; that the plaintiff has been compelled to pay the sum of $ 550 upon one of the notes given as before mentioned, and is legally compellable as surety to pay the sum remaining due on the other, amounting to $600 ; that on the 1st of September, 1829, the defendant was appointed administrator of the estate of Haskell, and on the 5th of October, 1830, filed an account of his administration in the probate office ; that the estate is insolvent, and that the defendant has received and sold the sixth part of the vessel and received the earnings which were accruing at the time of the conveyance to Haskell, which proceeds and earnings amount in all to about the sum of $ 1700 ; that the defendant has inventoried the proceeds and earnings as the estate oi Haskell; that on the 4th of October, 1830, the plaintiff requested the defendant to apply the same to the extinguishment of the notes above mentioned and the reimbursement to the plaintiff of the money which he has been compelled to pay thereon; which the defendant refused to do, and claims to hold the same as general assets of Haskell; that the defendant is the trustee of the plaintiff and of the fund mentioned, upon the foregoing trusts, and in equity and conscience ought to have executed the trust upon the plaintiff’s request. The bill prays for general relief.</p> <p>The defendant, in his answer, admits that on October 13, 1823, Nathaniel Safford conveyed one sixth of the Factor to Dike, and he avers that the conveyance was by an absolute bill of sale, but that it was intended by Nathaniel and Dike to be as collateral security to Dike for certain promissory notes ; and that on April 7, 1826, the conveyance was confirmed to Dike, together with all the freight and earnings of one sixth of the ship, as collateral security to Dike for certain promissory notes of Nathaniel for about $2700, with authority to Dike to sell the sixth of the ship, and after indemnifying himself in the premises, to account to Nathaniel for the surplus, if any ; but he denies that the sixth of the ship was conveyed to Dike, or confirmed to him upon trust, and that Dike became trustee, as set forth in the bill; he avers that Dike employed the ship, and that on September 27, 1827, there appears to have been a balance of about $3144 due on account, as stated by Dike ; and he denies that Dike at that'time made known to Nathaniel his intention to sell the sixth of the ship, unless a part of his debt should then be paid to him or assumed by John Safford and Haskell; and he denies that John was the attorney to Nathaniel authorized to act in the premises ; he does not admit that John was a creditor of Nathaniel, and he believes that Haskell was then a creditor of Nathaniel to the amount of about $ 1000, and that Haskell held an order, dated April 7, 1826, drawn by Nathaniel on Dike, and accepted by Dike, payable to Haskell, for any balance that might be in Dike’s hands on settlement, as security for Haskell’s debt; he denies that an agreement was made between Dike, Nathaniel, John and Haskell in the manner and for the purposes and upon the trusts on the part of Dike, set _orth in the bill ; he admits that John and Haskell, on September 24, 1829, furnished Dike with $1700, by a discount of thé two notes at the Exchange Bank, but he denies that the same was furnished under and in pursuance of the agreement as set forth m the bill, and he denies that Dike then became and was the trustee of John and Haskell, of the ship and earnings, upon trusts arising under the deed of Nathaniel to Dike ; he denies that Dike, in his assignment of July 8, 1829, excepted the sixth of the vessel and her earnings, as is averred in the bill, and he says that at the time when the sum of $ 1700 was furnished, Dike gave Haskell a receipt as follows : — “ Received of Samuel Haskell his note for $ 1200, payable in one year with interest, on account of one sixth part of the ship Factor and her earnings for the present voyage, and the same being part of the balance due me from the former owner of the one sixth part of said ship, as appears by account rendered August 15th, 1827, and the balance then being $ 3144-35, on demand ; ” and that Dike gave John Safford a similar receipt for his note of $ 500 ; he admits that on July 8, 1829, Dike’s debt against Nathaniel was nearly or quite satisfied, but he denies that he then became trustee of Haskell and the plaintiff, of the sixth part of the ship and earnings ; he admits that Dike, on July 8, 1829, conveyed the same to Haskell, but without notice of any trust, and he says that at the same time Haskell gave to Benjamin Merrill and Robert Manning, then the assignees of the property of Dike for the benefit of Dike’s creditors, a receipt and promise as follows : — “ In consideration that Benjamin Merrill and Robert Manning have caused John Dike to convey to me one sixth part of the ship Factor, I agree to account with and pay over to them, any balance of accounts that may on full settlement of all demands, appear tebe due from me, and I further promise to pay and take up two notes of hand, now held by the Exchange Bank, one made by said Haskell, and the other by John Safford, both amounting to seventeen hundred dollars principal; ” and that Haskell, on the same day, gave to John a writing as follows : — “ I hereby certify that the note of this date, signed by John Safford and myself, for five hundred dollars, in favor of the Exchange Bank, is for account of one sixth part of the ship Factor, and her earnings the present voyage, and said note is to be paid by me, whenever I realize that amount from the effects of said ship and her earnings ; ” he denies that the conveyance of one sixth part of the ship and her earnings to Haskell, was made upon an agreement in writing to hold the same in trust for John Safford, and that Haskell became a trustee for the plaintiff, of that property ; he admits that Haskell died, that he, the defendant, was appointed administrator on Haskell’s estate, and that the estate has been represented insolvent; he admits that he has received the proceeds of the sale of the sixth part of the ship and her earnings, amounting in all 'o the sum of $ 1670, and says that he has credited the same in his account of administration, which was settled in the probate court in November 1830 ; he admits that on October 4, 1830, John Safford requested him to apply those proceeds in the manner as is alleged in the bill, and that he refused so to do, because he considered the same as general assets of Haskell’s estate, and because the same was less than what was due from Nathaniel to Haskell; and he further says, that John exhibited a claim on the notes at the Exchange Bank, to the commissioners on Haskell’s estate, viz., one note unpaid, on which Haskell was principal and John surety, for $ 600, and a claim for $ 534-75 for the money paid to the Exchange Bank on the other note ; and he says that the claims were allowed by the commissioners, and that he has paid a proportional dividend on the same by order of the judge of probate, amounting to $ 462-41 ; and he denies that he is trustee of the plaintiff and of the proceeds above mentioned.</p> <p>The plaintiff produced the depositions of Dike and Nathan iel Safford, supporting the allegations in the bill. The deeds and writings referred to in the bill and answer were likewise exhibited.</p> <p>The writing of January 12, 1826, signed by Dike, was as follows :— “Received of Nathaniel Safford a bill of sale of one sixth part of the ship Factor as security for a note indorsed by me for twelve hundred dollars, and two notes of this date for fifteen hundred dollars. On the three notes being paid I agree to relinquish the said one sixth of the said ship.”</p> <p>By the indenture of assignment made on July 6, 1829, Dike conveys to Merrill and Manning, for the benefit of his creditors, his interest in the ship Factor and her earnings, which is recited to be one fourth part, “ it being understood that the said Dike does not hereby intend to convey, but excepts one sixth part of the ship Factor which said Dike holds as collateral security for the payment by John Safford and Samuel Haskell of a certain sum of money due to said Dike from them.”</p>

<p>By the statutes of the Theological Institution at Andover a professor is under the immediate inspection of the trustees, and they may remove him from office for gross neglect of duty, &c. The visitors are empowered to hear appeals from decisions of the trustees, to review and reverse any censure passed by the trustees upon any professor, and to admonish or remove a professor for neglect of the duties of his office, &c. An appeal lies from the visitors to the Supreme Judicial Court, who are authorized to declare null and void any decree of the visitors which is contrary to the statutes of the founders or beyond the just limits of the power prescribed to the visitors. A professor was removed by a vote of the trustees, for neglect of duty, and upon successive appeals, the visitors affirmed the decision of the trustees and the Supreme Judicial Court affirmed the decree of the visitors. In an action by the professor to recover his salary, it was held, that he might prove that the vote of the trustees was founded on irregular and illegal proceedings of the trustees and so was not sustainable as a judicial proceeding.</p> <p>The plaintiff having thus shown the invalidity of the decision of the trustees, and also proved a tender of performance of the duties of his office and a refusal by the trustees, it was held that his salary continued to run until the decree was passed by the visitors confirming his removal.</p> <p>The decree of the visitors having been affirmed upon tne appeal to tne Supreme Ju dicial Court, it was held, that the plaintiff was not entitled to recover for his salary for any time after the passing of that decree.</p> <p>So if the vote of the trustees had been ultimately supported as a regular judicial proceeding, the decision of the Supreme Judicial Court would have related back, so that the removal would have taken effect from the time of passing that vote.</p> <p>A professor at this institution is not liable to be removed by the trustees upon considerations of mere expediency or convenience, nor unless he has forfeited his office for one of the causes mentioned in the statutes of the institution 3 the removal of a professor, therefore, by the trustees, is a judicial proceeding, and in order to render it legal and binding on him there must be substantially, 1. A monition or citation to him to appear 5 % A charge given him to which he is to answer 5 3. A competent time assigned for proofs and answers 5 4. Liberty of counsel to defend his cause and to except against the proofs and witnesses 3 and 5. A solemn sentence after hearing the proofs and answers.</p> <p>Where a committee of the trustees appointed to inquire generally into the condition of the institution, examined the professors and other persons, and made a report concerning the plaintiff one of the professors, founded on statements made by himself and by other persons who were not examined in his presence, and the trustees, without notice to the plaintiff, voted that in view of the report and accompanying documents the interest of the seminary required that the plaintiff's connexion therewith should be dissolved 3 and after an unsuccessful attempt to induce him to resign, a committee of the trustees made a report recommending his removal, and the trustees sent a copy of this report to the plaintiff, and informed him that he might make any communications in regard to it, and that he might have the aid of counsel in preparing any argument or testimony which he might himself choose to present, but that he could not be heard by counsel,— but the trustees did not offer to file specific charges and to take upon themselves the burden of proving them by competent evidence in the presence of the plaintiff, and they refused him access to the documents which had relation to the charges intended to be relied on and from which the report of the committee containing the charges and the grounds of them had been prepared,—and the plaintiff declining to appear before them, they voted, upon the reasons and facts stated in the report, and without other evidence, inquiry, or hearing, that the report be accepted and that the plaintiff be removed from his office, — it was held, that independently of the first vote of the trustees, by which they disqualified themselves to act judicially on the question of removal, the plaintiff had not had the substantial benefit of a trial, and that the vote of the trustees was therefore ineffectual to remove him from his office.</p>

Waldo, the supposed trustee, made answer to the following effect : — On December 4, 1828, as the agent of Dins-moor, one of the principal defendants, I received of one Channing, at New York, the sum of $ 771, and I brought the amount in a thousand-dollar bill of one of the New York banks. On my way home to Methuen, I endeavoured to get the bill changed at the Andover bank, in order to pay Dinsmoor his money, but the cashier declined changing it.

<p>If a civil officer breaks open a dwellinghouse by forcing the outer door, against the prohibition of the owner, with the direct and avowed purpose of making an at tachment of the owner’s goods in the dwellinghouse, not only is such breaking an unlawful act, but the attachment made by means of it is unlawful and invalid</p>

<p>In an action upon a policy of insurance upon a vessel, to recover for a total loss, in a case where the vessel was sold by the master in a foreign port after a survey recommending a sale, the jury were instructed not to give effect to the survey, if they believed from the evidence that the facts (not saying the material facts) stated in the survey were not true, but the judge proceeded to call their attention to the material facts upon which the recommendation of a sale was founded. The jury having returned a verdict for the defendants, thereby disregarding the survey, it was held that the plaintiffs were not entitled to a new trial on the ground of a misdirection to the jury.</p> <p>In determining the question whether the cost of repairing a vessel which is insured in a valued policy, would amount to more than half the value of the vessel, so as to constitute a constructive total loss, the sum agreed on in the policy as the value of the vessel, is primá facie, and in the absence of all other evidence, to be deemed the true value.</p> <p>Where a policy on a vessel contained an express stipulation, that the assured should not have the right to abandon for the amount of damage merely, unless the amount which the assurers would be liable to pay under an adjustment, as of a partial loss, should exceed half the amount insured, the cost of repairing the damage, after deducting one third new for old, must exceed half the value of the vessel, in order to warrant an abandonment.</p> <p>Upon the question whether the sale of a vessel by the master was a matter of necessity, the jury were instructed to consider how an owner of a vessel would have acted under like circumstances 5 and it was held that this was not an unfit illustration 5 for the jury must have understood the instruction as referring to a prudent and discreet owner, and not to a rash and careless one.</p> <p>A new trial may be granted in order to determine a particular point, or to correct a particular error in the former trial, without opening the whole case.</p> <p>Thus, where upon the trial of an action on a policy of insurance the judge observed that it might be most convenient for the jury to decide only the question whether the loss was total or partial, and that if in their opinion it was partial only, assessors might be appointed to estimate and state the amount of the loss, and the plaintiffs did not express their dissent to this course, and no statement of the amount of a partial loss was offered by either party, and the jury found that the loss was a partial one, it was held, that the plaintiffs were not entitled to a new trial on the whole case, but as it appeared that they acted under a misapprehension of their rights in not expressing their dissent, a new trial was granted, upon their consenting that a verdict should be entered for a partial loss, and that the inquiry before the jury should be confined to the question of the amount.</p>

<p>Wisen the Supreme Judicial Court is held in Nantucket by one judge, it has cognizance of all matters cognizable by it when so held in any other county 3 and when held in Nantucket by three or more judges, it has cognizance of all matters cognizable by the full Court in any other county.</p> <p>All proceedings in law or equity arising within the county of Nantucket, though ultimately requiring the action of the full Court, are, in the first instance, to be brought and made returnable at the term in Nantucket.</p> <p>When the Court is held in Nantucket by one judge, and a question of law arises requiring the action of the full Court, the judge will direct the case to be entered at the next November term In the county of Suffolk, and will further direct what copies and other papers shall be filed in the Suffolk clerk's ofiice, and at what time 3 and if the party whose duty it is shall not, within reasonable time, enter the action in Suffolk, the other party will be at liberty to do so, giving such notice as the Court may order.</p> <p>When the action is so entered, all further proceedings are to be had, judgment given and execution issued by the Court sitting in Suffolk, except when a new trial shall be ordered 3 in which case, the cause is to be remanded to Nantucket.</p> <p>In all cases of exception, motions for new trial or in arrest of judgment, after verdict, or after a default 01 nonsuit subject to the opinion of the whole Court, the cause at Nantucket will be considered as continued nisi; and if the party taking the exception or making the motion, shall fail to enter the action at the next November term in Suffolk, and the adverse party does not enter it, the party entitled to judgment upon such verdict, default or nonsuit at the ensuing term in Nantucket, upon producing a certificate of the clerk in Suffolk, that the action has not been entered there, will be entitled to judgment as of course, unless good cause is shown to the contrary.</p> <p>When an action is brought from Nantucket and entered in Suffolk, the usual fees are to be paid on the entry, as on the entry of other actions, except the part taxed for the justices of the Court.</p>

<p>A factor, being advised of a provisional consignment to him and of a bill of exchange drawn on him by the consignor expressly upon the credit of the consignment, re fused in terms to accept the draft, but afterwards received from the master of the vessel the goods consigned. Whether receiving the goods did not ipso facto render him chargeable as acceptor of the draft, qucere.</p> <p>Where the shipper of goods fills up the bill of lading with the name of a particular consignee or bearer, the mere delivery of the bill of lading by the shipper, for value, passes the property, against any person except a previous assignee of the bill of lading.</p> <p>Where the shipper of goods drew a bill of exchange upon the credit of the con signment, and, as collateral security, delivered to the holder the bill of lading, by which the goods were to be delivered to the defendants or bearer, but the defendants refused to accept the draft and afterwards obtained the goods from the master of the vessel and sold them, it was held, that upon the refusal to accept the draft the holder became entitled to the possession of the goods, and that he might recover of the defendants the proceeds of the sale.</p>

Debt on a bond, dated May 12, 1824, with a penalty of $ 16,000. The condition is, that whereas Ashur Adams, the principal, has been duly appointed to the office of teller of the American bank, if he shall faithfully perform and discharge the duties of his office for and during the whole term in which he shall continue therein, then the obligation shall be void, otherwise, &c. Plea, general performance.

<p>In trover for goods sold by the plaintiff to a vendee under whom the defendant derived his title, it was held, that the testimony of persons who had sold goods to the same vendee about the same time, showing that he was then insolvent, and that he knew it, and that he had no reasonable expectation of paying for the goods purchased by him, is competent evidence to prove that his purchase from the plaintiff was fraudulent.</p> <p>A fraudulent purchase of goods, accompanied with delivery, is not void but voidable only, at the election of the vendor, and until it is avoided the vendee has power to make a valid sale of the goods to a bond Jide purchaser having no notice of the fraud.</p> <p>Where goods sold, to be paid for on delivery, were put on board a vessel appointed by the vendee to receive them, not for the purpose of transportation to him or to be delivered for his use at a place designated by him, but to be shipped by such vessel, in his name, from his place of residence and business, to a third person, it was held, that the right to stop in transitu was at an end when the goods were put on board the vessel.</p> <p>If a bill of lading is signed before the goods are shipped or even purchased, and afterwards, at any time before the vessel sails on the voyage described, goods are put on board as and for the goods embraced in the bill of lading, as against the shipper and master, the bill of lading will operate on such goods by way of relation and estoppel; and the consignee, who receives it and accepts drafts on the faith of the consignment, has as valid and effectual a title to the goods as could be obtained by an actual delivery of the goods themselves.</p>

<p>Trover to recover the value of a pair of looking-glasses attached and sold by the defendant, a deputy sheriff, as the property of Selden Braynard. The declaration alleges the conversion to have taken place on January 23, 1830.</p> <p>At the trial, the plaintiffs produced the deposition of Braynard, in which he testifies, that he purchased the glasses of Doggett & Co. in March 1825, for $600, and took a bill of sale of them, and at the same time it was agreed between them, that if the glasses did not fit his rooms, Doggett & Co. should not charge him storage, until he should have made some disposition of them; but it was then expected that he would use them immediately. In 1827, while they remained in the warehouse of Doggett & Co., the deponent, wishing to raise money upon them, applied to the plaintiffs for an advance of $ 400 upon them, whereupon an order was drawn, addressed to Doggett & Co. and signed by the deponent, as follows : — “Please deliver Messrs. Thomas K. Jones & Co. one pair of large looking-glasses purchased by me of you for $ 900, for value received ; ” which was Indorsed, “ Accepted John Doggett & Co.” Upon giving this order, thus accepted, to the plaintiffs, they advanced to the deponent the $ 400 ; it being then agreed that the glasses should be advertised and sold within a convenient time, but at a limited price, so that they should not be sacrificed. The glasses remained in Doggett & Co.’s store eight or ten days after the acceptance of the order ; and a day or two previous to the time fixed for the sale, they were sent by the order of the plaintiffs to their auction store. They did not however bring the price limited, and therefore were not sold. Soon afterwards the deponent, knowing that an auction store was an improper place for valuable articles of this sort, suggested to Dehon, one of the plaintiffs, that it would be better to have the glasses sent back to Doggett & Co.’s warehouse, and the deponent accordingly called and requested Doggett & Co. to send their men to take the glasses back, the deponent presuming that their men would handle glasses with more care than the plaintiffs’ men. The glasses were carried back .accordingly. Nothing was then said to Doggett & Co. by the deponent about their acceptance, or of any relinquishment by the plaintiffs of their claim under it. Some time after the glasses had been sent back to the warehouse of Doggett & Co., they wished to have them taken away, and they spoke to the deponent about it several times ; and he replied, “we are in hopes of doing something with them shortly, so as to have them removed.” Doggett & Co., as the deponent believed, asked him why he would not take the glasses to his house on Jamaica Plains; but the deponent made some plausible excuse, knowing that he had no right to remove the glasses until the plaintiffs were settled with. At last Doggett & Co. suggested that they should be sent to their store in Roxbury, and the deponent replied that he thought that was the best way they could be disposed of. The deponent afterwards understood from Doggett & Co. that the glasses were sent to Roxbury, but he had nothing to do with them after requesting Doggett & Co. to send for them as before mentioned. The deponent had never repaid the plaintiffs. Doggett & Co did not (to the deponent’s knowledge,) know that the plaintiffs had made the advance to the deponent. The deponent never exercised any right of ownership or control over the glasses, after the acceptance was given. The deponent believed he obtained leave of the plaintiffs to have them sent to Roxbury, but there was no evidence that Doggett & Co. had notice of it.</p> <p>It was admitted that the glasses had been attached while in the store of Doggett & Co. at Roxbury, in suits brought by them and by others against Braynard, and were in the custody of the defendant, who had advertised them for sale by auction by virtue of executions obtained in those suits, on January 23, 1830 ; and that on that day the plaintiffs demanded the glasses of the defendant, showing the acceptance, and in the presence of Braynard, and that the defendant refused to deliver them; and that they were afterwards sold by his orders.</p> <p>The defendant introduced one Clark as a witness, who testified, that on April 10, 1829, a few days after the attachments had been made, he called upon Dehon, and inquired of him what claim he had on these glasses, then in Doggett & Co.’s possession ; whereupon Dehon exhibited the acceptance in the case, and said that he had advanced § 400 upon them. The witness inquired whether he took a bill of sale, and he replied that he did not, and that the order was all the claim he had. The witness asked if he ever told Doggett & Co. that he had a claim on the glasses, and he answered “ never,” and that he thought it unnecessary to give notice, as he had their written acceptance.</p> <p>If upon the testimony the Court should be of opinion that the plaintiffs were entitled to recover, judgment was to be rendered accordingly ; otherwise, for the defendant.</p>

<p>Whe/e the owner of lands in fee simple, being in failing circumstances, conveyed the lands to F. and his successors, in trust from the proceeds of the sales thereof to pay the grantor’s debts, and to reconvey whatever surplus there might be, and appointed F. his attorney, “ giving him, at his own discretion, full power to sell all or any of the lands,” it was held, that although F. did not take a fee himself, nevertheless he had a sufficient power of attorney to convey the fee.</p>

<p>This was an action on the case for maliciously attaching and detaining on a writ of replevin, dated June 26, 1828, the schooner Caroline. The present action was to be determined upon the same principles as if it had been brought against Thomas Bradford, junior, and John C. Decosta, of Philadelphia, who were the plaintiffs in the replevin suit.</p> <p>At the trial before Morton J. it appeared, that C. and C. W. Pierce, of Philadelphia, failed in business on May 2, 1828, and on that day assigned their property for the benefit of their creditors, to Bradford and Decosta. It was alleged by the defendants, that among the property so assigned was one half of the schooner Caroline ; which was denied by the plaintiff.</p> <p>Larkin & Curtis were once the owners of half, if not the whole of the Caroline, and the plaintiff produced a bill of sale of her to himself from the assignees of the property oí Larkin & Curtis, dated June 24, 1828, and a copy of the enrolment of her in the custom-house in Boston, dated June 25th, in his own name ; and it appeared that the vessel was delivered to him before the defendants had taken any possession of her, or had made known to him their pretensions.</p> <p>Bradford and Decosta instituted a libel in the District Court of the United States at Boston, on June 25, 1828, claiming to be put into possession of one half of the vessel with Wills, which libel upon a hearing, on June 26, was dismissed and the replevin suit was on the same day commenced.</p> <p>Upon the evidence in the case, the judge instructed the jury, among other things, that the plaintiffs in the action of replevin, claiming to own only one half of the vessel, could not maintain replevin, yet that if acting as rational men they honestly believed that they could maintain that action for the recovery of any real or supposed interest, it would be a justification in the present suit ; but if their purpose was to obtain an illegal object, or a legal object in an illegal manner, it would not amount to a justification : That the legal presumption that every one knows the law, applied to the present case, and that the plaintiffs in replevin must be presumed to have known that that action would not lie, unless they could show the contrary : That this might be done by proving that they were advised by counsel that replevin was the proper remedy : That it was incumbent on the plaintiff, not only to show that the action of replevin was commenced without probable cause, but that it was malicious : That legal malice might differ from malice in the common acceptation of the term : That to do a wrong or unlawful act, knowing it to be such, constituted legal malice ; and that the plaintiffs in replevin could not justify doing a wrong or unlawful act, knowing it to be such, upon the ground that they did it to obtain a lawful end.</p>

<p>in an action upon an account annexed to the writ, one item in the account was a charge of the excess of expenses on certain goods of the defendant sold by the plaintiff as factor, over and above the proceeds of the sale. At the trial the plaintiff was permitted to strike this item out of the account, although the defendant objected, and the defendant was not permitted to avail himself of the credit given him in the plaintiff's account of sales,unless he would admit the correctness of the charges against him in the same account, some of which he contested. The defendant had not filed an account in set-off. It was held, that this course of proceedings was incorrect, as it would give the plaintiff the advantage of his charges without proving them, and would deprive the defendant of the benefit of a set-off 5 and it was ordered that the item struck out should be restored.</p> <p>in an action by a factor against his principal, to recovera general balance, the plaintiff’s negligence in selling the defendant’s goods may be given in evidence in mitigation of damages, and to bar all charges for commissions, and all charges for interest, storage, &c. caused by the plaintiff’s negligence.</p>

<p>This was an action on the case by a foreign merchant against the defendant, a branch pilot for the harbour of Boston, for the negligence and unskilfulness of Josiah Ayres, junior, his deputy.</p> <p>The declaration contained originally two counts. The first alleged, that the defendant, on July 28, 1831, was one of the pilots for the port of Boston, duly appointed, &c. and was furnished with a branch or warrant for the due execution of the duties of his office, and was entitled to the lawful fees of pilotage ; that the plaintiff was the owner of a vessel called the Isabella, which was laden with a cargo, the property of the plaintiff, which vessel was sailing upon a voyage from Malaga to Boston, and had arrived in the Massachusetts bay and near to the harbour of Boston ; and that the defendant boarded the vessel off the port of Boston and for the legal fees of pilotage undertook to pilot the vessel into the port of Boston and to bring her safely to her moorings therein ; yet the defendant, not regarding the duties of his office, &c. so ignorantly, negligently and unskilfully managed the vessel, in piloting her into the port of Boston, that he ran her aground on certain rocks called the Minots, situated off a certain place called Cohasset, near the entrance of the harbour of Boston, and upon pilotage ground of the pilots for the port of Boston, by which means the vessel with her cargo was wrecked and totally lost to the plaintiff.</p> <p>The second count alleged, that the defendant was one of the pilots for the port of Boston, duly appointed, &c. and that the plaintiff was the owner of the Isabélla, &c. and that one Josiali Ayres, junior, a deputy pilot under the defendant and for whose acts, misfeasances and non-feasances as such deputy the defendant was answerable, boarded the vessel off the port of Boston, and for the legal fees of pilotage undertook faithfully to pilot her into the port of Boston, but that he ignorantly, negligently and unskilfully ran her aground, &c. to the damage, &c.</p> <p>The plaintiff, upon leave to amend, filed a third and a fourth count.</p> <p>The third recites, that the trustees of the Boston Marine Society, at a regular meeting on January 16, 1830, did, in pursuance of a statute of the Commonwealth (St. 1829, c. 2,) among other rules, establish the following, &c. (reciting the 2d, which prescribes the form of the branch for the Boston pilots, containing this clause, viz. “you are to be governed by such rules and regulations, and to receive such fees, as may be prescribed in conformity to the provisions of the act above named ; ”— the 6th, which provides that eight commissions or branches shall be granted for piloting, &c. and that each person so commissioned may appoint deputies ; — the 7th, prescribing the fees of pilotage ; — the 8th, providing that if any branch pilot of the harbour of Boston oilers himself to any vessel liable to take a pilot, outside of a line drawn from the Harding’s Rocks to the outward Graves, and from thence to Nahant Head, if inward bound, or any branch pilot offers himself to any vessel outward hound, &c. and the master of said vessel refuses to take such pilot on board, the master and owners of said vessel, or either of them, shall incur and be liable to the penalty in the first section of St. 1829, c. 2; — the 9th, providing that if any vessel, whilst under the charge of a branch pilot or his deputy, shall be lost, or run aground, or sustain any damage, through the negligence or unskilfulness of such branch pilot or his deputy, such branch pilot shall be liable not only for himself but for his deputy, to pay the owner of such vessel all damages, and also be liable to have his branch or commission taken from him; — the 11th, prescribing that it shall be the duty of the pilot, after having brought a vessel into the harbour of Boston, to have her properly moored, &c.; — the 13th, making the hull and appurtenances of the vessel liable for the fees of pilotage; — and the 14th, recommending eight persons, including the defendant, to the governor and council, as duly qualified for pilots,) which rules and regulations, on February 12, 1830, were duly approved by the governor, with the advice of the council, after a due hearing of the parties interested, a copy of which the plaintiff brings into court; and the plaintiff alleges, that on July 28, 1831, the defendant was one of the pilots, &c. duly appointed, commissioned and sworn according to the rules and regulations aforesaid, and was entitled to the lawful fees for pilotage, and subject to the liabilities according to the rules and regulations aforesaid; that Josiah Ayres, junior, was a deputy pilot duly appointed by the defendant, &c. and for whose acts, misfeasance and nonfeasance as such deputy pilot the defendant was and is by law answerable, according to the rules and regulations aforesaid ; that the plaintiff, on July 28, 1831, was the owner of the Isabella, &c. laden with a cargo, &c. the property of the plaintiff, &c. and sailing on a voyage from Malaga to Boston, &c. ; that Josiah Ayres, junior, being a deputy pilot under the defendant, &c. and for whose acts, &c. boarded the vessel, the same being liable to take a pilot and inward bound in the said bay, off the said harbour of Boston and outside of a line drawn from the Harding’s Rocks to the outward Graves and from thence to Nahant Head and -ipon pilotage ground of the pilots for said port of Boston, and offered himself to the master of the vessel as a pilot, and *n executi°n of his office as deputy pilot aforesaid' and for the legal fees for pilotage, took upon himself all the charge of piloting the vessel into the port of Boston and of bringing her safely to her moorings therein, and promised the plaintiff that he would faithfully do the same ; yet the said Josiah Ayres, junior, deputy pilot &e. not regarding the duties &c., so ignorantly, negligently and unskilfully managed the ship in piloting her into the port, that he ran her aground on certain rocks, called the Minots, situated off a certain place called Cohasset, near the entrance of the harbour of Boston, and upon pilotage ground, &c. by means whereof the vessel was wrecked and wholly lost to the plaintiff and the cargo was greatly damaged, wasted and destroyed, &c.</p> <p>The fourth count alleges, that the defendant, on &c. was a pilot for the port of Boston and entitled to the fees for pilot-age for his services as such pilot, and that the plaintiff was the owner of the Isabella and cargo, which vessel was sailing &c. and had arrived near to the harbour of Boston, and that the defendant, in the execution of his office of pilot and for the fees of pilotage, by one Josiah Ayres, junior, his servant and deputy, took upon himself all the charge of piloting the vessel into the port of Boston and bringing her safely to her moorings therein; yet the defendant, not regarding, &c. by his said servant and deputy so ignorantly, negligently and unskilfully managed the vessel in piloting her into the port of Boston, that he ran her aground on certain rocks called the Minots &c., and upon pilotage ground &c., by means whereof the vessel was wrecked &c. All which is to the damage &c.</p> <p>The defendant moved to strike out the 3d count because it could not lawfully be filed, the 1st and 2d being according to the common law, and the 3d being according to a special statute and making admissible a new and different class of evidence.</p> <p>After a verdict for the plaintiff, the defendant moves in arrest of judgment; —</p> <p>1. Because there is a misjoinder of counts, the 3d not being according to the common law, as the 1st and 2d are, bul being grounded on a special act of the legislature, and not admissible in a special action of trespass on the case.</p> <p>2. Because there is a general verdict, and the 1st, 2d and 4th counts are defective.</p> <p>3. Because, in effect, this is a suit on a special statute, and the statute is not recited, and the form of an action on tne statute is not complied with.</p> <p>The St. 1829, c. 2, provides in the first section, that no person shall undertake to pilot any vessels (fishing vessels &c. excepted) into or out of the harbour of Boston, without first having obtained a commission or branch as ■ in the statute is provided, under a penalty of fifty dollars for each offence. The second section provides, that to such persons as may obtain from the trustees of the Boston Marine Society a certificate that they are duly qualified, the governor, with the advice of council, may grant commissions or branches au thorizing such persons to exercise the business of pilots for the harbour of Boston, and to employ deputies. By the third, the trustees are empowered, from time to time, by votes passed at their regular meetings, to record, to ordain and establish such rules and regulations for fixing the duties to be performed by these branch pilots, with penalties for the nonperformance or mal-performance thereof, &c., and in general to establish all such rules and regulations, for the government of the pilots and of the pilotage into and out of the harbour of Boston, as the trustees may deem necessary or expedient, “and the same shall be of as full force and effect as if herein specially enacted, &c. provided however that such rules and regulations shall not take effect until the same shall be approved by the governor, with the advice of council, after a due hearing of the parties interested by petition or remonstrance.” In the fourth section it is enacted, that in case no Boston branch pilot shall offer his services to the master of a vessel bound into Boston harbour, before such vessel shall have passed a line drawn from Harding’s Rocks to the outer Graves, and from thence to Nahant Head, such master shall be at liberty to pilot his own vessel, or to employ any other person to pilot his vessel into Boston harbour, without incurring the penalties of this act.</p>

<p>If the defendant pays money into court, and the plaintiff nevertheless proceeds to trial and a verdict is given against him, he neither pays nor recovers costs up to the time when the money was paid into court.</p>

<p>A ship belonging to a citizen of the United States, being insured, sailed on a voyage from Buenos Ayres to China and back, with a cargo belonging to citizens of Buenos Ayres, and after entering the River La Plata on her return voyage, the master being ignorant that war had commenced between the Brazils and Buenos Ayres, she was taken by a Brazilian squadron blockading the port of Buenos Ayres and sent under a prize master to Rio Janeiro, where prize proceedings were instituted by the captors, and during the pendency of the same she was seasonably abandoned to the underwriters. It was held, that the capture was hostile 5 that the case did not come within the perils excepted in the policy, of illicit trade or trade in articles contraband of war, there being no evidence that the ship was violating any of the laws of trade of Buenos Ayres, or that she had on board articles contraband of war; that she was not violating the belligerent rights of Brazil, as she had no notice of the blockade; and consequently, that the underwriters were liable for the loss.</p> <p>Under a policy of insurance containing a clause, that il in case of capture or detention the assured shall not have the right to abandon therefor until proof is exhibited of condemnation, or of the continuance of the detention for at least ninety days,” although the detention may in reality have continued for that period, yet the assured cannot abandon therefor until he has intelligence of that fact.</p> <p>But a premature offer to abandon for such detention may, in consequence of the acts of the parties, operate as a continuing notice of abandonment, which will become effectual so soon as the assured shall receive and communicate to the underwriters evidence of the detention’s having continued ninety days. Thus, where the offer was never countermanded, but the assured, as well in furnishing the requisite proof of the continuance of the detention as in other transactions witli the underwriters, acted upon it, from time to time, with their knowledge, as a subsisting notice, it was held to have become a valid abandonment.</p> <p>The kind or degree of proof necessary to be furnished, on the offer to abandon, of the continuance of the detention, is not that which would be required to sustain an action on the policy, but such as is usually produced to underwriters as preliminary proof of loss, is sufficient.</p> <p>The redelivery of the vessel to the assured, by order of the prize court, upon his giving bond either to return the vessel in specie or pay her value in case of a condemnation, is no determination of the hostile detention.</p> <p>The delivery of the vessel on bail to an agent appointed by the master after the capture, is not a waiver of the abandonment; for if the abandonment was valid, such agent was the agent of the underwriters themselves, and not of the assured.</p> <p>So if the master appoints an unsuitable person (for example, the agent of the captors) to protect the property, it will not affect an abandonment valid in other respects; for such agent is the agent of the underwriters.</p> <p>Where the assured, in making an abandonment in consequence of information contained in a letter, communicates so much of the letter as he deems material, expressly designating it as an extract, and the underwriters do not call for the whole of the letter, the omission to communicate the whole will not affect the validity of the abandonment.</p> <p>Where a vessel, insured in a valued policy, is captured as prize and abandoned to the underwriters, and is redelivered on bail upon a valuation made by order of the prize court, the amount of damages in a recovery for a total loss is according to the valuation in the policy, and not according to that made in the prise court.</p> <p>A ship was insured for twelve months or until her arrival, at the premium of four and a half per cent, per annum and at that rate for a longer or shorter period, but warranting two and a half per cent, for six months, and the assured was not entitled to abandon for capture or detention until proof should be exhibited of the detention having continued ninety days. The ship was captured just before the expiration of the six months, and after proof exhibited of detention for ninety days, was abandoned. It was held, that the abandonment had relation back to the time of the capture, the result showing a total loss at that time, and that the underwriters were entitled to a premium for only six months.</p>

<p>In an action by the plaintiff* as indorsee of certain promissory notes, a writing was produced in evidence, given by the plaintiff to"his mother, in which, after acknowledging that he has received of her the notes in question, signed by the defendant and indorsed by the promisee, he says, “ said notes I am to collect, being to the amount of $ 1412*86, and after said notes are paid by the promisor to me, I will account to her for the same, or deliver the notes to her if 1 cannot recover them of the promisor.” It was held, that by the legal construction of this writ ing it did not necessarily import that the plaintiff received the notes merely as agent to collect them in the name of his mother, and not as indorsee, and that it might be explained by parol evidence $ for as it was collateral to the contracts upon which the action was brought, it did not fall within the rule, that parol evidence is not admissible in aid of the construction of a written instrument.</p>

<p>Assumpsit on a promissory note.</p> <p>The case was decided on these facts. The plaintiff is administrator de bonis non of the estate of Anne Smith, on which estate E. H. Robbins junior and Margaret Coffin had been executors, and from which trust they had been discharged at their own request. The defendants are executors of the will of William Payne. The plaintiff offered in evidence a promissory note for § 6000 given by Payne to Anne Smith. The defendants offered in evidence as proof of payment, the following memorandum signed by Robbins while he was executor, which relates to the same note. “ It is hereby agreed that the sum of $ 3235, with interest from May 2, 1829, due from E. H. Robbins junior to the estate of William Payne, being the purchase money of certain Dover shares sold on said 2d of May, shall be applied on a certain note of said William Payne for $ 6000 now held by the representatives of Mrs. Anne Smith. July 27, 1829. E. H. Robbins junior.”</p> <p>If this memorandum was sufficient proof of payment of the sum of $ 3235 on account of the note, the plaintiff was to become nonsuit; otherwise the defendants were to be defaulted.</p>

<p>Assumpsit. The declaration originally contained two counts ; the first, upon an account annexed to the writ, in which the plaintiffs claimed, for half the amount of loss, including bad debts, in an adventure in hams on joint account with the defendants, $ 593-49, and for interest on the above to the date of the writ, $ 82-22 ; the second, for money paid. Previously to a trial at November term 1830, under an agreement that the plaintiffs might file new counts for the same cause of action, counts were filed for money had and received, money lent, money due for interest, insimul computassent, and goods sold and delivered.</p> <p>At the trial in November 1830, the evidence showed that the outstanding debts of this partnership were of some value. At March term 1831 a new trial was granted, upon the application of the plaintiffs, in order that they might have an opportunity to prove that those debts were of no value and that no part of them could be collected.</p> <p>Upon the new trial at November term 1831, before Morton J., the counsel for the plaintiffs stated to the jury, that this action was brought to recover of the defendants one half of the loss upon an adventure in hams, which was entered into and prosecuted upon joint account between the plaintiffs and the defendants ; that the amount claimed by the plaintiffs was one half of the net loss upon the sales compared with the purchases, allowing all the outstanding debts as if good, and in the same manner as if all the sales had heen paid for according to the terms of sale ; and he offered a specification of the claim in behalf of the plaintiffs, in which the account between the parties was made out upon this principle.</p> <p>To this statement of the claim the counsel for the defendants objected, because in the account annexed to the writ the plaintiffs had claimed one half of the outstanding debts which were declared by the plaintiffs to be bad, and the case had at the former trial proceeded on that ground. The counsel for the plaintiffs then proposed to waive the count upon the account annexed, and moved for leave to strike out that count. The Court granted the motion, but upon terms of paying costs to which the counsel for the plaintiffs would not accede ; and he elected to proceed upon the counts as they stood, stating that he should claim nothing upon the account annexed to the writ. To this the counsel for the defendants objected. The Court, saving this objection, allowed the plaintiffs to proceed and recover upon such counts as were applicable to their claim as now presented to the jury.</p> <p>The jury found a verdict for the plaintiffs for the amount claimed by them upon the principle stated by their counsel; and the defendants moved for a new trial on account of the above ruling of the Court.</p>

<p>One summoned as trustee under a trustee process, may make the affidavit of another person a part of his answer, if he is willing to swear that he believes it to be true, or he may reject it.</p> <p>The circumstance that such affidavit was made by a person interested in the cause is immaterial, for it is received upon the authority of the trustee’s oath, and not as the testimony of a witness.</p> <p>Though the answer of a trustee, where the language is doubtful, is to be construed most strongly against himself, yet it is not to receive a construction against the fair and natural import of the language taken all together.</p>

<p>Id order that a prior attachment of a debtor’s property by one creditor, may be valid as against a subsequent attachment by another, the first writ, at the time when it is served, should set forth clearly the cause of action intended to be secured by the attachment.</p> <p>If a new count is filed by the first attaching creditor, which does not appear by the record to be for the same cause of action as the original declaration, and judgment for the plaintiff is rendered thereon, the attachment is vacated as against a subsequent attaching creditor.</p> <p>Thus, where the writ, at the time when the attachment was made, contained only general money counts, and the plaintiff filed new counts on promissory notes, the attachment was held to be vacated as against a subsequent attaching creditor, because the original declaration did not show that the notes were intended to be produced in evidence.</p> <p>If property is attached on a writ founded on two demands, one of them honest and the other fraudulent on the part of the plaintiff, and judgment is rendered for the plaintiff upon both, the attachment is wholly void as against a subsequent attaching creditor.</p> <p>An officer attached personal property of a debtor on a writ sued out by Í, subject to a previous attachment in favor of K. F was admitted, under St. 1823, c. 142, to assume the defence of K’s action, on the ground of its being fraudulent. K’s writ, at the time when it was served, contained general money counts, and by leave of court he filed new counts on promissory notes, upon which counts he obtained a verdict, judgment and execution. F gave the officer notice not to levy the execution on the property attached, stating that by the proceedings which had taken place in the suit, K’s attachment had been vacated. No indemnity was offered by F, nor demanded by the officer. The officer disregarding the notice, levied K’s execution on the property attached. F afterwards obtained judgment and execution, and directed the officer to levy on the property attached on his original writ, but the officer returned the execution unsatisfied, and so F lost his debt. Thereupon F brought an action against the officer for not applying the property to his execution, and upon the trial he proved that the new counts filed by K were for new and fraudulent causes of action. It was held, that the officer was liable to F, and that as the property returned as attached on F’s writ was more than the amount of his execution, the measure of his damages was the amount of his execution with interest from the time when it ought to have been levied.</p>

<p>A bill of exchange indorsed in blank by the payees and left by them in the hands of the drawer, was transferred to the plaintiff without the knowledge of the indorsers, with the following words written by the drawer under his name, — “ left with Mr. B. (the plaintiff) as collateral.” It was held, that this was not an alteration of the bill, and therefore that it did not render it void as against the indorsers.</p> <p>Where a bill of exchange indorsed in blank by the payees, but made payable to a particular person by the last indorsement, was presented to the drawee for payment, by the last indorser, who was in possession of the bill bond Jide, the presentment was held sufficient to charge the preceding indorsers.</p> <p>It seems that a bill of exchange payable in a fixed period from the date, may be presented for acceptance at any time before it becomes due. Thus, a bill drawn at Boston upon a merchant in New York, dated April 23, payable in four months from date, and presented for acceptance on July 13, was held to have been presented in due season.</p> <p>If the holder of a bill transferred to him as collateral security for indorsing another bill, pays this last bill without due notice of its having been dishonored, such payment is gratuitous, and he cannot recover upon the bill pledged to him as collateral security.</p>

<p>Assumpsit. The plaintiffs were Gould Hoyt, John G. Coster, Edmund Smith, George G. Gardner and Joseph Smith.</p> <p>The plaintiffs declared, 1. That on August 29, 1824, they employed the defendant as a commission merchant at Gibraltar, to sell for them a cargo of 4577 bags of cocoa, that the defendant effected a sale on May 30, 1825, and that he had not paid over the proceeds ;—and 2. That he had refused to account for the proceeds.</p> <p>At the trial before Wilde J., the following facts were proved or admitted.</p> <p>In March 1823, the ship Sabina sailed from New York on a trading voyage to South America. A cargo was put on board by the plaintiffs and was owned by them in the following proportions, namely, one fourth by Hoyt, one fourth by Cos ter, two sixteenths by Edmund Smith, three sixteenths by Joseph Smith, the supercargo, and three sixteenths by Gardner, the master. Bills of lading were signed by the master, by which it was represented that Hoyt was the shipper of the cargo, on account and risk of the persons before named, and in the proportions before stated, consigned to Gardner and Smith, the master and supercargo. The respective shares of the master and supercargo were under bonds of respondentia to the Ocean and Union Insurance Companies in New York, the master’s for $ 7000, and the supercargo’s for $ 7500; and by an indorsement on the bills of lading this fact appeared.</p> <p>The ship was at Guayaquil in March 1824, and there a cargo of 9682 bags of cocoa, the proceeds of the cargo from New York, was obtained, and on March 17th the master signed bills of lading, by which it was represented that the supercargo and himself had shipped for Gibraltar, for account and risk of the same persons and in the same proportions as shown in the outward bills, the cocoa above mentioned, to be delivered to the shippers. Upon these bills the master and supercargo assigned their shares in the cargo to the Ocean and Union Insurance Companies, respectively, in pursuance of the respondentia bonds.</p> <p>Prior to the sailing of the ship from Guayaquil, a merchant of that place, having a claim against Gardner, instituted legal proceedings against him, and Gardner was obliged to give bail or security to respond the result. Robinett and Wheelwright, merchants at Guayaquil, became bail for him, upon his giving them a bill of lading, dated March 24, 1824, of the following import: — “Shipped by Robinett and Wheelwright in, &c. 1000 bags of cleaned cocoa, for their account and risk, to be delivered upto Horatio Sprague, he paying freight at the rate of one dollar per bag.” The bill refers to this memorandum in the margin: — “It is understood that the 1000.bags of cocoa herein expressed, are to be delivered pro rata to the whole quantity shipped in the vessel.” And the following memorandum is indorsed : — “ The condition of the within bill of lading is expressed in the letter accompanying the said bill.” This letter, which is from Robinett and Wheelwright to Sprague, says ; “ Enclosed we forward you a bill of lading for 1000 bags clean cocoa, shipped by us on board the ship Sabina of New York, Capt. George G. Gardner, for his account and risk. This cocoa is given to us by Capt. Gardner in consequence of our having stood security for him in a suit now pending with a resident of this place, as collateral security.”</p> <p>About the end of August 1824, the ship arrived at Gibraltar ; and all the cocoa on board went into the defendant’s hands.</p> <p>On September 6, 1824, the defendant caused the bill of lading given by Gardner to Robinett and Wheelwright, to be presented to Gardner and the contents to be demanded by a notary ; to whom Gardner made answer, “ I cannot deliver this cocoa, having no such property on board, as is well known to the shippers ; ” whereupon the bill of lading was protested. Of this circumstance the defendant informed Robinett and Wheelwright by a letter dated September 10, 1824.</p> <p>The defendant agreed to advance to the master $7500, which the master told him was on account of the respondentia bond to the Ocean Insurance Company, and the defendant remitted that sum to Hoyt in October 1824 ; but before it was received, the bond had been paid by Hoyt.</p> <p>On September 9, 1824, the master and supercargo, being about to leave Gibraltar, gave a letter of instructions to the defendant, stating the proportions in which the plaintiffs were interested in the cocoa, and that the interests of the master and supercargo were under bonds of respondentia to insurance companies in New York ; that “ with respect to the advances made to the master and supercargo on their proportions of interest in the cargo, to enable them to cancel the respondentia bonds, they would make an arrangement with the defendant before they should leave Gibraltar, on the subject of interest of money and guarantee, so as to protect them from all loss that might happen on the sales of their interest in the cargo.” The defendant is also directed, when the sales shall be completed, to make up the accounts “in the names of the con cern, for their respective proportions of interest as above mentioned,” and from time to time, as he shall be in funds from sales, to remit the amount in hand to Thomas Wilson & Co. of London, “ for account of the concern in their respective proportions ” ; but as it respects the master and supercargo, they having received advances on their respective proportions of interest in the cargo, should there be a balance in their favor when the sales should be closed, the defendant is directed “ to remit such balance to them respectively to New York, instead of to London ” And the defendant is further directed to correspond with Hoyt, “ the owner of the Sabina, who is the general agent of the concern for the voyage,” and to be governed by any instructions he may receive from Hoyt in relation to the property.</p> <p>The defendant received notice from Robinett and Wheelwright, that they would hold him responsible for all loss they might sustain in consequence of his neglect to obtain the contents of their bill of lading.</p> <p>The defendant rendered accounts of sale of this cargo of cocoa to Hoyt, and on May 30, 1825, paid over all the proceeds then remaining in his hands, except $ 6000 retained to await the adjustment of Robinett and Wheelwright’s claim.</p> <p>This suit was instituted on December 22, 1828. On April 22, 1829, Robinett and Wheelwright withdrew their claim against the defendant for the proceeds of the 1000 bags.</p> <p>A verdict was taken by. consent for the plaintiffs, subject' to the opinion of the whole Court.</p>

<p>Assumpsit on a guaranty.</p> <p>Upon a ■ case' stated it appeared, that the plaintiff, by an indenture dated March 21, 1826, leased a dwellinghouse to F. S. Durivage, u to hold for the term of one year from the 21st day of March aforesaid, said Durivage yielding and paying therefor' the rent of $250 per annum for the same, and after the same rate for a shorter period of time. And the said lessee doth promise to pay the said rent in quarterly pay ments, as follows, &c. and to quit and deliver up the premises to the lessor, or his attorney, peaceably and quietly, at the end of the term, in as good order, &c. and to pay the rent as above stated, and all taxes and duties levied or to be levied thereon, during the term, and for such further time as the lessee may hold the same, and not to make or suffer any waste thereof; and that the lessor may enter to view, and make improvements, and to expel the lessee, if he shall fail to pay the rent and taxes as aforesaid, or make or suffer any strip or waste thereof.” At the same time when the lease was executed, the defendant signed a writing on the back of it, which was as follows : — “For the consideration of one dollar to me paid by Samuel Salisbury Esq. I hereby guarantee the fulfilment of the covenants of the within named Durivage as within expressed.” This guaranty was not under seal. Another writing signed by Durivage, on the back of the lease, was as follows : — “ It is understood and agreed, that if said Salisbury should at any time determine to sell the estate, or to pull it down, I am to vacate the premises on receiving a reasonable notice, any thing in the within lease to the contrary notwithstanding.”</p> <p>-Durivage, who had occupied the house for a year before the commencement of the lease, continued to occupy it until June 21, 1829, at which time he left it, the sum of $253-75 being then due from him for rent and taxes, all of which had accrued subsequently to March 21, 1827, a year after the date of the lease, Durivage having paid all the rent and taxes for that year. No new lease or express contract in relation to the house was made between the plaintiff and Durivage subsequently to the one in question. Durivage has been called on several times by the plaintiff, to pay the balance due from him, but has neglected to pay it, and since he quitted the house the defendant has been informed of his neglect, and been called on for payment, by the plaintiff. Durivage, several times during his occupancy of the house, expressed to the plaintiff his willingness to leave it, if the plaintiff was dissatisfied with his want of punctuality in paying the rent or could do better with the house, but he never actually tendered the key to the plaintiff. No notice was given by the plaintiff to the defendant, that Durivage continued to hold the house after the expiration of a year from the date of the lease, nor was the •defendant ever called on by the plaintiff to deliver up the house or pay the rent, until after Durivage had quitted ; but the defendant knew that Durivage continued to occupy the house, until he left it. On January 27, 1829, the defendant accepted a draft for 100 dollars, payable to the plaintiff, which was drawn by Durivage on account of arrears of rent and was known by the defendant to have been drawn on that account; and at the same time the defendant accepted another draft of the same tenor and for the same amount in favor of Churchill & Collamore, which was given by Durivage for rent of his school-room, for which the defendant never was responsible in any way. Both of the drafts were accepted at the request of Durivage and without any funds of his in the hands of the defendant; and they still remain in the defendant’s possession, unpaid by Durivage.</p> <p>If the Court should be of opinion that the defendant was liable for the arrears of rent or any part of them, due from Durivage when he left the house, the defendant was to be defaulted ; but if he was not liable for any part of the same, the plaintiff was to become nonsuit.</p>

<p>Assumpsit against the defendants as the general owners of the schooner Caledonia, of Chatham, of which Joshua Atkins (an infant) was master, for not delivering goods shipped on board the schooner at Boston, to he delivered in like good order &c. to the plaintiff at Washington, District of Columbia.</p> <p>Plea, non assumpsit.</p> <p>At the trial before Wilde J. it appeared, that the schooner arrived at Alexandria, and that the goods were there, without the consent or knowledge of the owner of them, removed by the master from the schooner into a small river craft, which afterwards sunk and the goods were destroyed.</p> <p>One ground of defence was, that the owners of the schooner had orally chartered her to the master upon shares, according to a usage alleged to exist at Chatham, in regard to vessels employed in the coasting trade.</p> <p>Zenas Atkins, (once the master of the schooner,) testified that the owners authorized him, if he left the vessel, to give her up to his brother, Joshua Atkins, who had been his mate ; and that in pursuance of this authority he did give her up to his brother, and contracted with him to run her upon the same terms he himself had run her, namely, upon shares. Joshua Atkins testified that he run her upon shares, according to the agreement made with Zenas, and that the owners afterwards confirmed this agreement.</p> <p>The judge instructed the jury, that if they were satisfied that the vessel had been chartered by the owners to the master, for the voyage in question, in pursuance of the supposed usage, they should find for the defendants, and that the questions how far the minority of the master, or the usage, would affect the rights and liabilities of the parties, would be reserved for the consideration of the whole Court.</p> <p>It was objected on the part of the plaintiff, that Zenas Atkins had no power from the owners to let the vessel to his brother, but that he was only authorized to give her up to him. As to this the jury were instructed, that they were to judge from the evidence, what was the intention of the owners in this respect, and whether under the circumstances the authority to give up the vessel did not imply an authority also to agree upon the terms ; and that in weighing the testimony on this point, the usage might serve in some measure to show what was the intention of the parties, or to substantiate the testimony of Zenas and Joshua Atkins ; but of this they would judge, taking it in connexion with the other evidence; and that the usage, whether valid or not, would not avail the defendants, unless the vessel was actually let or chartered to Joshua Atkins.</p> <p>The jury lound a verdict for the defendants ; but if the directions given to the jury were wrong, or if they aught to have been instructed that Joshua Atkins, being a minor, was not competent to charter the vessel, so as to relieve the owners from their liability to the shipper, in this case a new trial was to be granted.</p>

Assumpsit on a promissory note signed by John Winship, payable to Kendrick, Gray & Co. or order, and by them indorsed to the plaintiff.

<p>Writ of entry to recover one seventh part of a small parcel of land in Boston covered by a building recently erected by the tenant.</p> <p>Upon a case stated it appears, that Samuel Eliot, by his will dated June 30, 1818, devised as follows: — “ Thirty-first. I give to my daughters, Frances Bray, Mary Harrison Dwight and Elizabeth Guild, severally and respectively, the brick dwellinghouses and their respective privileges and appurtenances, by them at the day of the signing of this will respectively occupied and improved, each to have and to hold their houses and estates thereto belonging now in their occupation, to them, their heirs and assigns for ever; provided however that this devise shall be considered as a part of their respective portions, and they shall be each respectively charged therefor On account of said portions the sum of eight thousand dollars.” — “ Thirty-third. It is my will that my wife Catharine Eliot, and my children who may reside with her, shall have the use of my present mansion-house, and also the free use of all my plate, furniture, &c., it being my design that the family establishment shall continue, as much as possible, unchanged. The said devise of the mansion-house to my wife for life, is on the condition that she shall continue to reside therein personally, &c. and in case she shall not, &c. then I give the same house and land thereto belonging to my son William Havard Eliot (the demandant), his heirs and assigns for ever, upon the same condition that he shall personally occupy the same during his life,” &c. — “Thirty-sixth. All the rest, residue and. remainder of my property, real or personal, which I have not before disposed of, I give to my children (naming them, there being seven) and their respective heirs and assigns, equally to be divided among them.” The will afterwards provides, that in case the testator’s wife shall occupy the mansion-house during her life, the reversion shall go to his son William Havard Eliot, his heirs and assigns, the same to be charged to him, in the apportionment of the testator’s estate, at the sum of $ 12,000, if the son shall survive his mother and shall elect to take this devise. The testator further says;—“Notwithstanding my devise of the residue, of my estate to my children, to prevent the necessity of partition between them I have thought it best to devise it specifically to them at such values and prices as appeared to me to be relatively equal,” &c. ; and he then proceeds to appropriate to his children severally, specific parcels of real estate at affixed values, but makes no mention of the court hereafter described.</p> <p>The testator died in 1820.</p> <p>The three houses first mentioned were built by the testator in 1805, on land which he purchased of John Jeffries. He purchased this land, intending to add the southerly half of it to his mansion-house estate, and expecting that William Phillips would take the other half, which adjoined Phillips’s land ; but Phillips refusing to take it, the testator built the three houses.</p> <p>The land purchased of Jeffries comprises all that lies between the testator’s mansion-house estate, and the land of Phillips ; and the three houses were placed on the northerly part of it, fronting southerly, and’ leaving between them and the mansion-house a court, which opens easterly on Tremont Street. The house which formerly stood on the Jeffries land was about where the easternmost of the three now stands, and the space between that and the mansion-house has been unobstructed, and the windows of the mansion-house have been where they now are, more than forty years before the commencement of this action. Five of the windows look upon the court, and two rooms are entirely dependent on them for light. The summer after the three houses were finished, the testator opened a drain from them and from the back part of his mansion-house, running down about the middle of the court to Tremont Street; which has ever since been used for all the houses. The court was never used by the testator as a passage-way to his mansion-house estate, nor in any other way in connexion with it, except for light and air from the windows, and for the drain ; and there was no entrance or communication between them</p> <p>The three houses with the appurtenances and estate belonging to them, as devised by the will, had in 1828 become the property of Benjamin Guild, and upon a treaty between Guild and the demandant for the purchase of the same, (the demand-ant being then the proprietor of the mansion-house estate, his mother having deceased,) Guild procured a release of all right in the court from all the residuary devisees except the demand-ant. Guild then conveyed to the demandant the three houses and estates, and also the right which he had acquired (if any) by the release. The demandant, in 1829, reconveyed to Guild the three houses and estates, and all right in the passage-way except his own share thereof (if any) as one of the residuary devisees. Guild afterwards conveyed the same to Carter, the tenant.</p> <p>Since the building of the three houses the land between them and the mansion-house has lain open, and has been used by the tenants of the houses, and by them only, to pass to and from their houses, and the two westernmost houses have no access to the street except over this land ; fuel and materials for repairing the houses have been placed upon it, as the occasion of the several tenants required, and usually by each tenant in front of the house occupied by him ; and since the death of the testator, a tenant of the westernmost house has put out trees on the southern border opposite to that house. But there was no evidence of other specific uses than those above mentioned or similar ones ; and no evidence that any tenant was ever forbidden or prevented from making any other use of the land. There is a fence separating the court from the street, through which there is an entrance by a large gate and a small one. In Boston it is very common for estates to have a drain entering into the drain of another estate, or passing through another estate.</p> <p>This action is brought to recover one undivided seventh part of a portion of the court, at the westerly end, of which the tenant has taken exclusive possession by covering the same with his building. He derives his title to the same from Frances Bray, who took under the will the westernmost of , the three houses.</p> <p>If the Court shall be of opinion that the demandant is entitled to one seventh part of the fee of the land described in his writ, judgment is to be rendered for him for the demanded premises ; otherwise he is to become nonsuit.</p>

<p>Devise of a sum of money to two persons named, in trust, to be invested in safe and productive stock, the income thereof to be paid to the testator’s widow during her life, and after her death the fund to be transferred to certain public institutions; and in case the trustees named or either of them should resign the trust, or die before having fully performed and executed the same, u the judge of probate having jurisdiction of the will, shall forthwith appoint one or more trustee or trustees in place of such trustee or trustees so failing.” The trustees named having accepted the trust, one of them died and the other afterwards resigned, » before the trust had been fully performed. It was held, that the appointment by . the judge of probate, of one person as sole trustee, was not a compliance with the intent of the will, but that two trustees should be appointed.</p> <p>It seems that by St. 1817, c. 190, § 40, the foregoing direction in the will in regard to the appointment of trustees, was binding on the judge of probate.</p> <p>But if he was not bound to pursue such direction, he was required by the 39th and 40th sections of the statute, to appoint one trustee in the place of the trustee dying, and another in the place of the one resigning.</p>

<p>An indenture was made, by which a debtor assigned all his property in trust to pay certain creditors, parties to the indenture, and it was stipulated that he should continue to use the property in his business as before, until the assignees should think it expedient to take possession, and that the assignees should take possession of subsequently acquired property and apply it to the payment of subsequently contracted debts. The assignees having taken possession of all the property and the same having been attached in their hands by a trustee process, it appeared that the demands of the creditors who had become parties to the assignment before the service of the process, exceeded the amount of the proceeds of the assigned property. Heldf that these creditors were entitled to the whole of the property as against the attaching creditor, and that it was not competent to him to object that the assignees intended to distribute part of it among creditors not parties to the assignment.</p>

<p>Such a state of facts may be set forth in a special plea as may be a sufficient bar to the action, although the plea may be incapable of being designated by any tech nical name known in the law.</p> <p>In an action against the master of a vessel, upon a bottomry bond, the defendant pleaded, that one P was the owner of the vessel and that he had chartered her to one G, to be employed under the command of the defendant; that the defendant, in a foreign port, gave the bond to the plaintiffs for the money therein mentioned, which money was of necessity procured by him of the plaintiffs and was by him, as master, wholly expended in and about the business of G and for the purpose of enabling the ship to sail for this country; that before the arrival of the ship here, G signed two negotiable notes payable to the plaintiffs, and a third, payable to P, and delivered the notes to P, and also assigned certain choses inaction to P, (the whole being less than the amount of the bond); that the same were so made, delivered and assigned to P, and were received by him, for the purpose and upon his undertaking to satisfy the plaintiffs therewith, in respect to their claims on the bond, and to cause the same to be extinguished; that by means of the two notes to the plaintiffs and the choses in action and a sum of money the property of P. he (P) afterwards procured the bond to be assigned to his agent, for his sole use ; and that the action was commenced and prosecuted in the name of the plaintiffs, at the instance and for the exclusive use of P. Upon demurrer it was held that the plea was a bar to the action.</p>

<p>This was an action on the case against the defendant, foi obstructing the plaintiffs’ grist mill. The parties stated a case for the opinion of the Court.</p> <p>The plaintiffs were duly organized under their act of incorporation, dated June 14, 1814 ; which act, and all others touching the subject of their incorporation or other rights, were in the case.</p> <p>All votes of the town and city of Boston, reports of the legislature, remonstrances and petitions to the legislature or to the town or city of Boston, were to be considered as in the case, if the Court should adjudge them to be competent evidence.</p> <p>The act of incorporation provides, in § 1, that the corporation may purchase and hold real and personal estate, (not exceeding in value two millions of dollars,) necessary to promote the objects of the corporation.</p> <p>It further provides (§ 2,) that the corporation shall have power to build a dam from Charles Street, at the westerly end of Beacon Street, in Boston, to the upland at Sewall’s Point, in Brookline, which dam shall not be less than forty-two feet wide on the top, and made so as effectually to exclude the tide water, and to. form a reservoir or empty basin of the space between the dam and Boston Neck ; and shall have power to build a dam from Boston to South Boston, with gates, sluiceways and other things necessary to admit and detain the tide water between this dam and Boston Neck, at the height of common tides ; and shall make in this dam a lock for the passage of rafts, boats, &c. ; and may run a dam from Gravelly Point in Roxbury, to the dam first described, so as to inclose the tide water within Tide-mill creek, and may connect the same with the full basin on the east, by a canal, at least one hundred feet wide, and boats and other things may pass and repass in the canal, at all times, free of toll ; and if the corporation shall fail, for the space of three years from the passing of the act, to secure the tide waters within Tide-mill creek, and to connect the creek to the full basin on the east, the legislature may compel the execution thereof, under such penalties and forfeitures as it may think proper to impose ; and the corporation may cut any number of convenient race-ways from the full basin to the empty basin ; and may lease or sell the right of using the water, upon any terms and in any manner they may think proper.</p> <p>By § 3, and an additional act passed June 19, 1816, the corporation are authorized to finish the dam first mentioned, so as to render it a good road, suitable for the passing of carriages, &c. and to receive a fixed toll of persons passing over it, whenever it shall be completed and whenever either of the other dams shall be so far completed, as that mills can be established, employing a power equal to turning twenty pair of common mill stones, and the corporation, or its assigns, shall have actually erected mills employing a power equal to ten pair of common mill stones.</p> <p>By § 4, the corporation shall be entitled to all the benefits of the engagements of the town of Boston with the petitioners for the act of incorporation, as the same are expressed in the doings of the town at its meetings of June 11 and Cctooer 20, 1813.</p> <p>By § 6, it is enacted, “ that any person or corporation, sustaining any damage by the building of said dams, bridges or causeways, or from cutting said canal or race-ways, or from the exercise of any of the rights and powers herein given to said corporation, may apply (if within one year from the time any such damage may have happened) to the Court of Common Pleas for the county in which the land lies, for a committee to be appointed to estimate the damage.” The committee appointed pursuant to this section, are first to inquire, “whether any damage has been sustained from the causes aforesaid, and if any, they shall estimate the same, and where the damage is annual, they shall so declare the same in their report.” This section then makes provision for the return of the report to the Court of Common Pleas, and for a trial by a jury in case either party shall be dissatisfied with the report.</p> <p>The stipulations contained in the engagements of the town of Boston, referred to above in § 4, were not complied with on the part of the plaintiffs, .and their counsel conceded that they were not entitled to the benefit of those engagements. The claims of the town and of some of the abutters on the empty basin, conflicting with those of the corporation, were recently settled by a compromise, to which however the defendant was not a party.</p> <p>At the time when the act of incorporation was granted, the Commonwealth owned a large extent of flats and channels between the first mentioned dam and Boston Neck, but the capacity of the empty basin as claimed by the plaintiffs, would be much diminished if limited to the flats and channels so owned by the Commonwealth.</p> <p>The defendant erected a dwellinghouse, and for that purpose placed earth and stones upon land admitted (so far as regards this action) to be owned by him in fee, and within that part of the empty basin claimed by the plaintiffs, which would be useful for the mills when the whole power should be m operation.</p> <p>The wheels of the grist-mill belonging to the plaintiffs, were, before any obstruction was placed in the empty basin by the defendant, impeded in some degree at neap tides, and the earth and stones placed there by him did in some degree, though not capable of accurate measurement, increase the difficulty and occasion some damage to the plaintiffs ; which it was agreed should be estimated at one dollar.</p> <p>Since the plaintiffs were incorporated and before the act complained of in the writ, they have by voluntary compact, for a valuable consideration, made an arrangement with some of the owners of flats within the empty basin, by which such owners are authorized to fill up considerable portions of the basin, whereby its capacity for receiving water flowing from the mills would be essentially diminished, some of which owners have built upon their flats pursuant to the agreement, by which the actual capacity of the basin has been diminished, but not in so great a degree as to admit of any precise estimate of its present effect upon the plaintiffs’ mill power. The defendant’s doings, however, would have impeded, in the same manner as at present, the use of the plaintiffs’ mill power, if this compact had not existed and the acts done under it had not occurred.</p> <p>If upon these facts the Court should be of opinion that the plaintiffs were entitled to recover, judgment was to be rendered for the plaintiffs, and damages to be assessed at one dollar ; otherwise the plaintiffs were to become nonsuit.</p>

<p>Assumpsit. At the trial-the plaintiffs offered in evidence a bill of exchange, dated August 26, 1825, drawn by the defendants, who were merchants and partners, living at Nantucket, on Macy, Bunker & Macy, of New York, and by them accepted, for §4000, in favor of Philip H. Folger, cashier. The bill was indorsed by P. H. Folger, cashier, tc the order of M. S. Parker, cashier, and by M. S. Parker cashier, to the order of J. Delafield, cashier. The materia.</p> <p>■ facts are stated in the opinion of the Court : — which was delivered by</p>

<p>The parties stated the following facts. The plaintiff was, on the 4th of April, 1831, and for one year previous thereto had been, an inhabitant in the seventh ward, in the city oi Boston. ■ He was of the age of twenty-one years. During the two years next preceding the day above mentioned, state and county taxes had been assessed upon him within this Commonwealth, all of which were paid by him, and he was duly qualified, according to the constitution, to vote at an election of governor, lieutenant governor and senators. At a legal meeting, on the 4th of April, 1831, of the inhabitants of Boston resident in the seventh ward, for the purpose of making such an election, the plaintiff offered to the defendants, being the warden and inspectors of the elections of the ward, his vote for certain persons to be governor, lieutenant governor and senators, but the defendants refused to receive the vote, because the plaintiff’s name was not placed and borne on the list of qualified voters of the ward.</p> <p>If the defendants were justifiable in refusing the plaintiff’s vote, the plaintiff was to become nonsuit; if otherwise, the defendants were to be defaulted.</p> <p>The St. 1821, c. 110, establishing the city of Boston, provides, in § 24, that prior to every election of city officers, or any officer or officers under the government of the United States, or of this Commonwealth, it shall be the duty of the mayor and aldermen to make out lists of all the citizens of each ward, qualified to vote in such election, in the manner m which selectmen and assessors of towns are required to make out similar lists of voters ; and it shall be the duty of the mayor and aldermen to deliver such list of the voters in each ward, so prepared and corrected, to the clerk of the ward, to be used by the warden and inspectors thereof at such election ; and no person shall be entitled to vote at such election, whose name is not borne on such list; and to prevent frauds and mistakes in such elections, it shall be the duty of the inspectors, in each ward, to take care that no person shall vote whose name is not so borne on the list of voters.</p> <p>The third amendment to the constitution, which prescribes that every citizen having certain qualifications, shall have a right to vote in such elections, does not require that his name shall be borne on any list; and the question was, whether the St. 1821, c. 110, § 24, above recited, is not inconsistent with this amendment, and therefore void.</p>

<p>Where a prisoner indicted in this Court pleads a former conviction in the Municipal Court of Boston, with a profert of the record, a certiorari to the justice of that court commanding him to certify the whole record of the proceedings, may be issued upon the application of the prosecuting officer, suggesting a diminution of the record.</p> <p>To such plea the prosecuting officer filed a general demurrer, reciting that the certiorari had been returned and that the whole record was before the Court, but neither suggesting a diminution of the record nor praying oyer of the record as certified ; and it was held, that in determining on the demurrer the sufficiency of the plea, the Court could not take notice of the record as certified.</p> <p>Unless the first of two indictments was such as the prisoner might have been con victed upon, by proof of the facts contained in the second, an .acquittal or conviction on the first can be no bar to the second.</p> <p>A conviction upon an indictment for an assault with intent to murder, cannot be pleaded in bar to an indictment for murder; for the offences are distinct in their legal character, and in no case could a party on trial for the one be convicted of the other.</p> <p>Upon an indictment for a felony the prisoner cannot be convicted of a misdemeanor.</p> <p>A prisoner on trial for a capital or other crime, has no right to have the jury polled.</p> <p>Where there has been an irregularity or misconduct on the part of jurors, which might affect their impartiality or disqualify them for the proper exercise of their reason and judgment, their verdict should be set aside; but in other cases the proper mode of correcting the irregularity is by animadversion upon the conduct of the jurors or of the officers having them in charge.</p> <p>Where the jury in a capital trial had retired with the cause, and one of the constables having them in charge and a stranger carried reasonable refreshments into their room, but no conversation respecting the cause took place between those persons and the jury, it was held, that the prisoner, who was convicted, was not entitled to a new trial.</p> <p>The Court permits cider to be furnished to a jury, but not spirituous liquors.</p>

<p>This was an action of covenant upon an indenture.</p> <p>The declaration sets forth, that the defendant, for the considerations mentioned in the indenture, assigned to the plaintiff all his, the defendant’s, claim against Ethel Olmstead, which was for a balance on taking an account of their mutual dealings ; that the defendant, among other things, covenanted with the plaintiff, “ that the said account was by him, as he believed, justly stated, and that he had received nothing on account of it, other than what appeared in his books and the account stated, resulting in the balance aforesaid; ” and that me account was not justly stated by the defendant, which the defendant, at the time of making the indenture, well knew, &c.</p> <p>The defendant craves oyer of the indenture and sets it out m full. It is stated in the indenture, that the claim against Olmstead is disputed and that the defendant does not warrant the amount of it, or that any thing shall be recovered from it.</p> <p>The defendant then pleads non est factum and six special pleas in bar ; upon all which pleas issue is joined.</p> <p>On the trial of the issues, before Shaw C. J., an instrument purporting to be an original indenture between the parties, being produced, it was objected by the defendant, that it ought not to go to the jury upon the issue of non est factum, because there was a variance between the covenants contained in it and those set forth in the declaration.</p> <p>In support of this objection it was contended, that in the construction of any covenant all the parts of the instrument should be taken together ; that in this instrument there were clauses and provisions which restrained and qualified the particular covenants set forth in the declaration, and that such restraints and qualifications should have been set out in the declaration, and that without, them the covenants were not truly stated and could not be truly said to be the defendant’s covenants, and therefore that such instrument could not maintain the issue of non est factum for the plaintiff.</p> <p>But the chief justice, acceding to the correctness of the proposition, that in construing each covenant all the parts of the instrument were to be taken together, ruled that as the instrument produced corresponded precisely with the instrument set out on oyer, whatever grounds of objection the defendant might take by demurrer, or in arrest of judgment, it could not be rejected and prevented from going to the jury on the ground of variance ; and subsequently the jury were instructed, that if they found that the instrument produced was duly-executed by the defendant, they should find the issue on the plea of non est factum for the plaintiff.</p> <p>A verdict was returned for the plaintiff upon ail the issues ; which, so far as it regards the issue on the plea of non est factum, the defendant moved to set aside, on the ground of an alleged misdirection.</p> <p>At the time of the return and affirmance of the verdict, on a question respecting the computation of interest in the assessment of damages, at the request of the defendant and with the consent of the plaintiff, an inquiry was made of the jury, as to the time, if any, from which they computed interest; where upon, in the presence and hearing of the jury, the foreman answered, that upon the subject of damages there was a great diversity of opinion among the jury, that they acted upon no uniform rule, but each juror fixed the sum which he thought right, that these were all added together and the aggregate divided by twelve, and that the average thus ascertained was the sum inserted in the verdict as damages. The defendant moved for a new trial, on the ground that this mode of assess ing the damages was illegal.</p> <p>The defendant moved in arrest of judgment, 1. Because the indenture was insufficient to support the action. 2. Be cause the instrument set forth on oyer, varied materially from the supposed deed declared on.</p>

<p>If a person summoned as trustee in a trustee process brought in a county other than that in which he resides, would entitle himself to costs against the plaintiff in the event of a judgment in favor of the principal defendant, he must appear and submit himself to interrogatories at the return term of the writ.</p>

Trespass quare clausum. Plea, the general issue. At the trial, before Morton J., the defendant set up title in himself in the locus in quo, and the defence depended upon the division line between the plaintiff’s and defendant’s respective lands.

<p>In a real action a copy of a registered deed made to a common ancestor of the par ties, is admissible in evidence, if there is no reason to presume the original deed to be in the possession of one party rather than the other.</p> <p>If an original proprietor, seised as tenant in common with others, of a township of land, and entitled to a certain number of acres as his share, makes a grant of the land before it is located to him, his title passes by the deed, and upon a location being made to his right, the land vests in his grantee in severalty.</p> <p>A grant of land in fee to two persons " jointly, to be equally divided between them,” creates a tenancy in common by virtue of St. 1785, c. 62, § 4, if not at common law.</p> <p>An award made more than forty years ago, of a partition of land among heirs, without proof of any submission, was held not to be binding as an award.</p> <p>Whether a grant oy a tenant in common to his co-tenant, or a disseisin by the co-tenant, or a partition, of open, unenclosed woodland, can be presumed from possession and acts of ownership by the co-tenant, quaere. But at any rate, the evidence of an open, undisputed, adverse possession must be very clear, in order to raise such a presumption.</p>

Assumpsit upon several demands, one of which was a subscription by the defendant, of $ 100, in aid of the funds of Williams College.

Assumpsit on a promissory note, dated August 29, 1829, and payable to Alonzo Case or bearer, on or before June 1, 1830. On the trial, before Morton J., upon the general issue, it was proved that the note, within three or four days from its date, was assigned to the plaintiffs by Case, to whom they paid, in goods at retail prices, the amount then due thereon.

<p>Where the amount of damages is matter of opinion merely, the fact that the jurj have fixed them at a greater or less sum than any of the witnesses, is not a ground for a new trial.</p> <p>If it were legally proved that the jury had reduced the damages below twenty dollars, contrary to the evidence, in order to prevent the plaintiff from recovering full costs, the Court would not sustain the verdict 5 but where other and legal reasons may be supposed to have influenced their decision, the Court will not impute to them an improper motive.</p> <p>In an action to recover a quantum meruit for the plaintiff's services in the part-performance of a special contract, he is not entitled to interest on the unliquidated sum due to him, from the time of making a special demand before action brought, but only from the time of the service of the writ. Semble.</p>

<p>Under a grant of a mill, “ also the mill yard and all other appurtenances and privi leges, roads and appendages belonging to said mill, with the right of digging, damming and flowing for the accommodation of said mill,” the grantee has not a right to erect a trough on the grantor’s adjoining land to conduct the water to the mill, no such trough having existed at the time of the grant, and the place where it was erected not having ever been flowed by the mill dam.</p>

<p>An action upon a bond made to A, conditioned for the support of B, cannot be maintained in the name of B.</p>

<p>When a mill is disused and removed and not replaced, the dam ceases to be a mill dam under the protection of the mill acts, and the remedy for the owner of land which is flowed by it is an action at common law.</p> <p>In such action the plaintiff can recover only for the injury caused by the dam since it ceased to be under the protection of the mill acts.</p>

<p>The plaintiff in replevin derived his title to the goods replevied, under a mortgage made to him by a third person to indemnify him against a promissory note described in the mortgage as having been given for a certain sum, but the note produced by the plaintiff was for a different sum; and the mortgage was alleged by the defendant to have been either fraudulent or discharged. It was held, that the plaintiff might prove by parol evidence, that the note produced was the one referred to in the mortgage.</p> <p>In a receipt given to a deputy sheriff, the receipter, after enumerating certain goods, says,-—•**the property of S. attached on a writ, &c. all which I promise to redeliver on demand.” The goods were redelivered accordingly to the officer, and the receipter immediately afterwards replevied them as his own property. It was held, that he was not estopped by his written receipt, nor by the redelivery of the goods, to deny that they were the property of S.</p>

Assumpsit upon a writing signed by Stedman, Lee and Curtis, the defendants, in which they acknowledge that they have received of the plaintiff “ a sorrel horse worth $ 50 ” and other chattels, each valued separately in like manner, attached by the plaintiff as a deputy sheriff, on a writ against Stedman ; and the defendants promise to redeliver the chattels to the plaintiff', in case execution shall issue against Stedman in that suit.

<p>Assumpsit on a promissory note, dated October 22, 1827, for $300, payable to the defendant, in sixty days, signed by Jacob Lansing and indorsed by the defendant.</p> <p>The defence was usury.</p> <p>In a case stated it is agreed, that the following facts are proved by the testimony of Lansing, if he is a competent witness ; and the only question as to his competency arises from the fact of his being the maker of the note. He is in no way interested, having been released by the defendant. He testifies, that on October 22, 1827, he drew the note and the defendant indorsed it for his accommodation, and that on the same or the next day he applied to the plaintiff, who then resided in the city of Albany, to borrow money, and handed him the note, and that the plaintiff, after reading the note, gave the deponent a check for $275, which the deponent accepted for the face of the note, it being then agreed between him and the plaintiff, that the premium to be allowed on discounting the note should be $25.</p> <p>The statute of New York for preventing usury, in force when the note was made and until January 1, 1830, declares it to be unlawful to take more than at the rate of seven per cent, per annum for the loan or forbearance of any moneys, and that all notes, &c. wherein or whereby more than seven per cent, shall be reserved or taken, shall be void.</p> <p>If upon this evidence the defence of usury was sustained, the plaintiff was to become nonsuit.</p>

Assumpsit on the following written promise of the defendant:— “I hereby agree .with John A. Sheldon to pay one half of the taxable costs in the suit commenced by him against me at the Hampden court in March current, he withdrawing said suit and making no further costs thereon.” On the trial of the present action, in the Court of Common Pleas, before Strong J., the plaintiff offered to prove by the testimony of Augustus Collins, his attorney in the suit in Hampden, that that…

<p>Action of debt. The defendant Hill, at the time of issuing the writ, lived in the State of New York, and personal service was not made on him. The action was continued two terms on the plaintiff’s motion. At the third term the defendant appeared, and on the third day of the term he filed a plea in abatement, that the writ was not indorsed by the plaintiff by 'his Christian name and surname, or by his agent or attorney.</p> <p>The plaintiff brought up the case on demurrer, reserving all his rights to object to the plea, and in this Court he objected to its being received ; which objection was overruled, and issue was joined on the plea.</p> <p>Before the writ was served, it was indorsed in the handwriting of Byington, the attorney of record in the case, as follows : — “ Loring G. Robbins by Att’y.” Robbins was an inhabitant of this Commonwealth, at the time of bringing the action.</p>

<p>In an action on St 1786, c. 81, § 7, to recover double damages for an injury occasioned by a defect in a highway, it is not necessary for the plaintiff to allege, in bis declaration, that he is entitled to double damages.</p>

<p>There being no general bankrupt law of the United States in force, the law of a State providing for the discharge of an insolvent debtor, upon the surrender of his property, is a constitutional law, so far as it operates upon future contracts made within such State, by citizens thereof, and which contracts, by their terms, are to be performed within the limits of such State.</p> <p>A discharge obtained under such operation of an insolvent law of another State, is a good defence to an action brought in this State upon a contract embraced in the discharge.</p> <p>Where a judgment on a contract was obtained in this State, and afterwards the defendant obtained a discharge under such insolvent law, embracing the contract, it was determined in a suit here upon the judgment, that the Court would look behind the judgment to the original contract, and that the discharge was a bar to the action.</p> <p>In giving effect to the local law of another State, by which a contract there made is discharged, the Court will also give effect to a rule of evidence accompanying and making a part of the local law, and providing for the mode of proving the discharge.</p> <p>Thus, in the case of such insolvent law, the discharge being, by the law of such other State, made conclusive evidence of the facts and proceedings therein contained, in the courts of such State, it must have the same effect in this State.</p> <p>Under the insolvent law of New York, of April 12, 1813, the proper tribunal has jurisdiction of the person, when the party petitioning is an inhabitant of the county in which his application is made, and jurisdiction of the subject matter, when the proceedings are brought before such tribunal by a petition of the insolvent, in conjunction with persons purporting to be two thirds in amount, of the creditors residing in the United States.</p> <p>Under that law, the facts, that the person granting the discharge held the office conferring authority to act in cases of insolvency within the county in which he acted, and that he had jurisdiction of the person and of the subject matter as above mentioned, being proved here by evidence aliunde, all other material facts necessary to give validity to the discharge, are proved by the discharge itself.</p> <p>On the question, whether the magistrate who granted the discharge, had jurisdiction, the facts, that of several petitions presented to him signed by different creditors, one had been signed two or three years before the presentation of it, and was addressed to another magistrate but of like authority, at the time, ic cases of insolvency, were held to be immaterial.</p>

<p>Assumpsit for $ 2000 money had and received, &c. Plea, the general issue.</p> <p>At the trial before Morton J., the plaintiff gave in evidence a note signed by the defendants, for $ 2000, dated June 2, 1824, payable in sixty days from date. On the note were twenty-five endorsements, each for the sum of $21, made at intervals of about two months, in the following form : — “ Received $21, Aug. 6, 1824.”</p> <p>The defence was usury. The defendants called the cashier of the bank, who testified, that when the note was discounted the sum of $ 21 was deducted for the interest or discount for sixty-three days ; that when the several indorsements of $ 21 were made, the money was received by him upon the same computation of interest, and was credited on the books of the bank to the discount account; that the directors of the bank signed the discount sheet weekly, and had opportunities to see how the interest or discount was computed on this and other notes, but that they never gave him any directions how to compute interest in any case, nor complained of the manner in wl ich it was computed ; that he always made his computations of interest upon the principle adopted in Rowlett’s Tables, that is, to consider sixty days as two months, and that he was in the habit of using those tables ; that he knew that this principle would give a gain of five days in the year to the lender, but that he had no recollection that this occurred to him at any time when he was calculating the interest upon the note in suit; and that he never intended to take of the defendants more than the lawful interest.</p> <p>The plaintiffs offered to prove, that it was the custom of all the banks in this and the adjoining States, to use Rowlett’s Tables, and to compute interest or discount upon the same principle that was adopted in the present case. This was objected to by the defendants ; and with a view of bringing before the whole Court the questions arising in the case, the judge rejected the evidence.</p> <p>The defendants contended, that the fact of the receipt ol $ 21 as the interest of $ 2000 for sixty-three days, showed the note to be usurious and void ; and that it could not be explained by any of the evidence introduced or offered to be introduced ; and that all the above facts showed the note to be usurious. The plaintiffs contended, that the facts did not in themselves show the note to be usurious ; but that if they did, yet they might be explained by proof of the usage of other banks ; and at any rate, that the question whether there was any corrupt agreement, was one which must be tried by the jury, and that from the above evidence they might find that the excess of interest was taken by mistake.</p> <p>A nonsuit or default was to be ordered, according to the opinion of the whole Court upon the foregoing facts.</p>