Volume 3 — Massachusetts Reports

<p>A. and B. having an open account, an adjustment takes place between A. and an agent of B., duly authorized, and the balance found due is paid over to the agent. B. expresses dissatisfaction at the mode of the settlement: whereupon A. writes to B., “ Re-peruse the accounts, make out a statement according to your own wishes, and draw on me for the balance, which shall be punctually honored.” Two years afterwards, B., being pressed by a creditor, draws a bill on A. in favor of the creditor. It was held that A. was not bound to accept or pay the bill so drawn.</p>

<p>This was a writ of entry sur disseisin, pending in the county of Cumberland, in which the demandant claimed one undivided twenty-seventh part of the premises described.</p> <p>May term, 1805, the cause was submitted to the Court upon the following facts agreed by the parties.</p> <p>The premises demanded were in the seisin and possession of Joseph Quinby of Falmouth, who died seised thereof in fee simple, on the 30th of April, A. D. 1776, having, by his last will and testament duly proved, devised the same to his three sons, Thomas, John, and Levi, in equal shares, all of whom entered under the will, and became seised in fee simple. Thomas died seised of his purparty prior to March 9 th, 1783; Levi died seised as aforesaid after that date, leaving Mary Quinby, their mother, and widow of the said testator, then in full life.</p> <p>The said Thomas and Levi were respectively more than twenty-one years of age, unmarried, intestate, and without issue at the time of their deaths. One brother, John Quinby, and three sisters, Rebecca, Eunice, and Mary, survived them. Joseph Quinby, another brother, died before Thomas and Levi, leaving three sons, Frederick, the bankrupt, Henry, and Joseph, his heirs at law.</p> <p>Upon these facts, if it should be the opinion of the Court that the said Mary, the mother, is by law entitled to take and hold the said estates of the said Thomas and Levi, as sole heir and next of kin to them or either of them, the demandant shall be nonsuit, if the opinion of the Court should be that by law the said | * 14 ] Frederick, the bankrupt, took the * said estates, or either of them, as heir of his father, Joseph Quinby, with the surviving brother and sisters aforesaid, and their representatives in equal shares with the said Mary, the mother, the tenant shall be defaulted, and judgment be rendered for possession of such a part of the demanded orcmises as the said Frederick, the bankrupt, shall be entitled to</p> <p> </p>

<p>In this cause the following facts were agreed by the parties, “ On the 16th of March, 1794, Hannah Church, being seised in fee simple, made her last will, which was afterwards duly proved; in which, after bequeathing therein several small legacies, she divides the residue of her estate into five equal shares, and gives one fifth to James Miller Church, the petitioner, and his sister Hannah, children of her son Benjamin Church, deceased, in equal shares ; one fifth unto six children of her son Edward Church, in equal shares ; one fifth to a daughter of her son Giles Church; one fifth to two sons of her daughter Mary Cookson; and the other fifth to her daughter Abigail Phillips. The testatrix at her death left seven children, or lawful issue of seven children ; so that if she had died intestate, her son Edward would have inherited one seventh part of her whole estate. The petitioner sues for one tenth part of the residuary estate to be assigned to him in severalty. The respondent Crocker, as grantee of Edward, son of the testatrix, claims to hold one seventli part of the whole, on the ground that Edward, who survived his mother, hath not any bequest or devise in the said last will, and that, as to him, the said Edward, she died intestate; in which case the petitioner *is entitled to no [ * 18 ] more than one tenth of six seventh parts. Upon these facts it was submitted to the opinion of the Court whether the petitioner was entitled to one tenth of the whole premises, or to one tenth only of six seventh parts ; and in either case the Court were to award costs to either party in their discretion.</p>

<p>When an action against a sheriff arises partly from matter of record, and partly from matter in pais in different counties, the plaintiff may bring his action in either county, at his election.</p>

Case upon a promissory note. The plaintiff calls himself of Charlotte-Town, in the province of Nova Scotia, within the British dominions. The defendant is named of Boston, in this county. The note declared on purports to have been made at Charlotte-Town, June 6, 1792, for £36, * Halifax cur- *35 rency, payable to the plaintiff in ten days from the date, and subscribed by the defendant.

<p>The Court will, require affidavits of the facts stated in a petition for a review before malting a rule to show cause.</p>

<p>A party to a negotiable security shall not be a witness to prove that, at the ti ne he gave it currency, it was void. But he may be permitted to testify to any facts happening afterwards, if he is not interested.</p>

<p>This action was brought to recover the amount of all invoice of goods shipped by the plaintiffs, merchants in Great Britain, to Lewis Glover. At the trial before Parker, J., at the last November term, the plaintiffs’ counsel stated that after the shipment, and before the arrival of these goods, Glover, who had discontinued business, informed an agent of the plaintiffs here, that he should not take the goods on his own account, to which the agent agreed; that, on the arrival of the goods, no person appeared to take the consignment of them, and they remained for some time in the custody of the officers of the customs ; that Glover made several attempts to sell them for the plaintiffs, and finally sold them to the defendants, informing them that he disposed of them as the agent of the plaintiffs, and agreed to take the defendants’ note for the amount, payable in nine months; that the defendants, after receiving the goods, refused to give such note, and .had not yet paid for the goods.</p> <p>To prove this statement, among other witnesses, he called Glover, who was objected to by the defendants’ counsel as incompetent on two grounds: 1st, that he was interested in the event of the suit; and 2dly, that, having endorsed his name on the bill of lading generally, and not as agent, he should not be permitted by his own testimony to invalidate that instrument.</p> <p>The objections were overruled by the judge, and Glover was admitted as a witness. A verdict was given for the plaintiffs, sub-to the of the the above statement, which was reported by the judge, the witness ought to have been admitted ; judgment to be rendered according to the verdict, unless the Court should be of opinion that the witness was incompetent; and in such case the verdict to be set aside, and a new trial granted.</p> <p>[ * 30 ] * And now Dexter, in support of the objections, contended that the invoice and bill of lading which accompanied the goods, and were in the usual form, purporting that the goods were shipped on the account and risk of Glover, vested the property of the goods consigned in him ; and that the whole contract being in writing, parole testimony ought not to have been admitted to control, impeach, or explain it away.</p> <p>Glover is directly interested in the event of the action ; for if by his testimony he enables the plaintiffs to recover of the defendants, he avoids the plaintiffs’ action against him for assuming to dispose of the goods, after he had disclaimed the consignment.</p> <p>Chief Justice. The plaintiffs can never sue Glover for a misfeasance, since, by this action, they have affirmed the sale by him.</p> <p>Dexter. Glover is still interested in supporting this action ; for the defendants are attached, as his trustees, on account of these same goods. So, if the sale by him should be disaffirmed, he not only cannot receive any benefit, but the costs of the process against his trustees would first be taken out of his effects. A direct interest, however small, in the event of the action, renders a witness incompetent, and supports our objection.</p> <p>Finding the Court strongly inclined against him upon the secón i objection, Dexter would not press it.</p>

<p>Upon an appeal from a decree of the Probate Court granting letters of adminis tiation to A. B., the Court may reverse the decree as to the appointment of A. B., and affirm it as to the residue; and in such case the papers are remitted to the judge, who is directed to grant administration to C. D. or E. F.</p>

The principal defendants were owners of a ship called the Governor Gilman, on board which the persons summoned as trustees, in December, 1802, severally shipped a quantity of specie, under an agreement with the owners of the ship, that it should be transported to Calcutta, and there be invested by an agent of the shippers, one half in sugars and the other half in cotton goods, which were to be brought back to Boston, in the ship, and there delivered to the respective…

Case upon a policy of insurance on the hull and appurtenances of the ship Columbia, valued at 10,000 dollars, at and from Bilboa, or other Spanish ports without the Straits of Gibraltar to Teneriffe, and at and from thence to Jamaica. The defendants underwrote four thousand dollars.

These three actions were pending in Cumberland, and the question before the court was the same in each, and depending on the same facts disclosed by Mr. Cobb, the trustee, on his examination, viz., whether, at the time of the several processes being served on him in the respective actions, he was the trustee of the principal defendants.

The declaration was in case for that the defendant at, &c., began to court the plaintiff under a pretence of a design to marry her, and having under that pretence gained her affections, got her with child, and afterwards utterly forsook her; whereby she hath been greatly injured in her reputation, hurt m her peace of mind, &c. To her damage 2000 dollars (1).

This was an action for money had and received, which the parties submitted to the opinion of the Court, upon the following facts.

<p>The endorser of a bill of exchange, drawn in a foreign country, and endorsed by one who has his residence there, is answerable only according to the laws of that country.</p>

<p>Upon the trial of an indictment for passing a forged instrument, when the instrument alleged to have been forged has been secreted to protect the oifender the person whose name is charged to have been forged, and who had seen and copied the instrument, is a competent witness to prove the instrument forged ; and tire production of the instrument itself will be dispensed with.</p>

<p>This was an action of debt on bond pending in the county of Cumberland. At the last May term, at Portland, the defendants pleaded, first, the general issue non est factum, which was joined. And, secondly, they prayed oyer of the bond declared on, and of the condition, and had it.</p> <p>*The bond was in the penal sum of 3976 dollars, 60 [ *87 ] cents, and bears date the 13th day of December, 1806. The condition recites that the defendant Willis was imprisoned in the prison at Portland, by virtue of an execution issued against him in favor of the plaintiff, for the sum of 1500 dollars, damage, and 487 dollars, 95 cents, costs of suit, and goes on, “Now, if the said Willis shall from henceforth continue a true prisoner in the custody of the jailer, and within the limits of the said prison, until he shall be therefrom lawfully discharged, and without committing any manner of escape, then said obligation to be void, otherwise to remain in full force.”</p> <p>The defendants then plead that Willis, the defendant, did, from the execution and delivery of the said bond, continue a true prisoner in the custody of the jailer, and within the limits of the said prison, until he was therefrom lawfully discharged on the 23d day of March last past, without committing any manner of escape; and this they are ready to verify; wherefore they pray judgment, &c.</p> <p>The plaintiff replies (protesting that the said Willis was not lawfully discharged, &c.), that after the execution and delivery of the said writing obligatory, the said Willis, at said Portland, on the 20th day of January, 1807, in the night time of said day, passed out of the custody of the jailer, without the limits of the said prison, without being therefrom lawfully discharged, and committed an escape. Upon which issue is joined.</p> <p>The two issues aforesaid were tried before the chief justice, at the sittings after the last May term, at Portland, when the jury returned a verdict for the plaintiff upon both issues.</p> <p>The defendants moved for a new trial for a misdirection of the judge, referring to a report of the trial to be made by the said judge ; and the cause was continued nisi, tc be argued before the whole Court at this term.</p> <p>The report now made by the chief justice states that the plaintiff to maintain the first issue, produced the bond, and two of the subscribing witnesses, who testified to the signing, sealing, and delivery of the bond; but he did not produce any evidence [ * 88 ] that the sureties in the bond were approved * by two justices of the peace quorum unus. The defendants, for that cause, objected to the reading of the bond in evidence of the jury. The chief justice overruled the objection, observing that it was new, and that he would reserve the point, if the defendants should move for a new trial.</p> <p>To maintain the second issue, the plaintiff gave in evidence that Willis, the debtor, after the execution of the bond, and before his discharge, had in the night time gone to a certain pump for water; and it was agreed by the parties .that this pump was in ground owned by the county of Cumberland, but was not within the jail, nor within any of the houses or apartments belonging to the jail, nor within the picket fence around the jail, but was within the boundaries of the yard appertaining to the jail as fixed and determined by the Court of General Sessions of the Peace for the said county; that there was another pump within the said picket fence, and that both of the pumps were in wells sunk by the county, for the use of the jail. And the weight of evidence was, that when Willis went to the pump first described, in the night time, the pump within the picket fence was frozen.</p> <p>The defendants insisted that on these facts there was no escape, and that the second issue ought to be found for them.</p> <p>The chief justice directed the jury that if they were satisfied that Willis, the debtor, after the execution of the bond, and before he was discharged, did, in fact, in the night time, go to the other pump first described, they ought to find the issue for the plaintiff, otherwise that they ought to find it for the defendants; at the same time observing that he should reserve the legality of this direction for the consideration of the whole Court, if the defendants requested it.</p> <p>After the verdict the defendants moved for a new trial on both the points which the chief justice had proposed to reserve at their request.</p>

<p>The resolve of the General Court, dated March 5, 1801, relating to the Pejepseot proprietors, and to settlers on their lands, being upon a condition to be performed by the said proprietors, and the condition not having been fulfilled, the resolve has no effect.</p>

<p>A debt due from A. to B. for the recovery of which an action has been com menced and referred by a rule of the court, in which rule it was agreed that judgment should be entered up according to the report of the referees, and execution issue thereon, is not liable to attachment in the hands of A. at the suit of S.’s creditor.</p>

<p>The Court mil grant a new trial where evidence has been rejected by the judge, which was proper to have been received under one count of the declaration; although such count was not relied on nor read by the plaintiff at the trial, a general verdict having been given for the plaintiff on all the counts.</p>

<p>The indictment, which was found at March term, 1804, charged that one Amos Tuttle, at Greenwich, in the county of Hampshire, certain goods and chattels, described in the indictment, the property of Robart Field and Peleg Canada, feloniously stole ; and that the defendant, at Boston, in the county of Suffolk, and on the 9th day of August, 1802, “ did feloniously receive and have all the same goods and chattels aforesaid, after the same had been stolen, taken, and carried away aforesaid, he, the said Andrews, then and there well knowing the same to have been so stolen, taken, and carried away; and did aid, abet, countenance, and maintain him, the said Amos Tuttle, in the felony and theft aforesaid, against the peace,” &c.</p> <p>The defendant was tried, upon not guilty pleaded, at the March term, 1807, before Parker, J.</p> <p>The jury returned a special verdict as follows, viz “ The jury find that the said Thomas Andrews did feloniously have and receive the goods mentioned in the indictment, in manner and form as is therein set forth, knowing the same to have been stolen; but they do not find that Amos Tuttle, the principal, mentioned in said indictment, was ever convicted of the theft therein alleged; and whether the law be such, that the said Andrews can be lawfull} tried and convicted of the charge in said indictment, before the conviction of the said Tuttle, the jury are ignorant, and pray the advisement of the Court; and if the law be such, that the [ * 127 J said Andrews can be thus convicted, the jury find * him guilty in manner and form as alleged in said indictment otherwise they find him not guilty.”</p> <p>The defendant, upon this verdict being found, moved the Court to arrest the judgment, because it appearing that the defendant was indicted as an accessory to a felony, he could not legally have been put on his trial, until the principal felon had been tried and convicted.</p>

<p>This was assumpsit on a policy of insurance, in which the plaintiff demands as for a total loss of the vessel insured.</p>

<p>If money be secured by a mortgage to be paid in five years with interest to be paid annually; and at the same time a lease is made by the mortgagor to the mortgagee for the same term, reserving rent, the law will presume the mortgage to be first executed, and it will be no bar to a recovery of the rent due by the lease.</p> <p>If one demise an estate for a term of years, reserving rent, and afterwards mortgage the same estate to the lessee in fee, and the mortgagee refuses to pay the rent, the rent is suspended until the condition be performed, or the estate redeemed: during the suspension, the lessee will be accountable for the profits, as mortgagee, towards the discharge of the interest and principal of the debt: if he voluntarily pay the rent, he shall not afterwards be accountable as mortgagee for the profits for the same time.</p> <p>A mortgagee in fee may enter immediately after the execution of the mortgage, put out the mortgagor and receive the profits, if there be no agreement to the contrary; and if the mortgagor refuse to quit possession, the mortgagee may maintain trespass against him, or in a writ of entry recover against him as a disseisor.</p>

This was a libel for a divorce a vinculo matrimonii for the cause of adultery. The allegation was, that the respondent, within five years last past, has deserted the libellant, and committed the crime of adultery.

This was a libel similar to the preceding. The adultery ivas alleged to have been committed at Homer, in the state of New York, and that appeared to have been the settled place of abode oi the parties at the time. The libellant has since removed into this county.

In this libel, which was for a divorce from the bonds of matrimony, for the adultery of the husband, the respondent is named of Sheffield, in this county.

<p>A minister settled in a parish for an indefinite term does not hold his office at the will of the parish.</p> <p>In a declaration in assumpsit the word promised is not necessary; any other intelligible word of the same import, as agreed, for instance, is sufficient</p>

The plaintiff in error made his application to the Court of Common Pleas for this county, pursuant to the statutes of this commonwealth, for the support and regulation of mills, setting forth that he was seised and possessed of a certain tract of land in Great Barrington, through which a stream of water passes, that Comstock, owning and occupying a saw-mill on the said stream, had erected a dam across said stream, for the working of said mill, whereby ten acres of good and…

This was a libel for a divorce a vinculo for the adultery of the husband. The evidence was, that the crime was committed in Connecticut. The husband had occasionally dwelt in different towns of that state, and of New Yorlc, appearing to have had no settled place of residence. The libellant lived in this county when the crime ivas committed, and has continued here ever since.

This was a certiorari to the Court of Sessions for this county, to remove into this Court the proceedings of the Sessions, touching the laying out a certain town-way in New Marlborough.

<p>Case for a breach of promise of marriage and seduction. Upon the general issue pleaded, the cause was tried before Sedgwick, J., at the last May term, in this county. It appears from the judge's report, that, after the evidence of the defendant’s promise, and of the breach of it, was given to the jury, the defendant gave in evidence the circumstances, condition, and age of the parties respectively, and also evidence of instances of the misconduct and impropriety and indelicacy of the behavior of the plaintiff, as well before as after the defendant’s promise, and before the breach of it. On this part of the evidence, the opinion of the judge was declared to be, 1. That if the woman was of bad character at the time of the contract, and that was unknown to the defendant, the verdir< ought to be in his favor. 2. That if the plaintiff, after the promise, had prostituted her person to any person, other than the defendant, she thereby discharged the defendant(1). 3. That if her conduct was improperly indelicate, although not criminal, before the promise, and it was unknown to the defendant, it ought to be considered in mitigation of damages (2). 4. That if such was her conduct after the promise, it was proper, in the same view, for the consideration of the jury.</p> <p>It appears in evidence, that the parties from early life had lived within a few miles of each other, and, for some time before the promise, in the same neighborhood; and that a personal intimacy had existed for a considerable time before the promise.</p> <p>The defendant’s counsel offered to prove a general bad character of the plaintiff as to chastity, between the time of the promise, and the breach of it; but they declined to state whether they would rely on it as an answer to the action, or only in mitigation of damages. The evidence was rejected, the judge being of opinion that in either view it was improper. After a verdict for the plaintiff, the defendant’s counsel filed an exception to this last opinion of the judge, and ■ on that ground a motion for a new trial was now made.</p> <p>'* In support of the motion, it was contended that, in [* 190 J an action of this kind, the character of the party was the very point in issue, and therefore evidence to that point ought not to have been rejected. If a man, believing that a woman’s conduct has been regular, and that her character is free from reproach, promises her marriage; and afterwards is convinced that he has committed an error, and that the woman’s conduct has been lewd and unchaste, whereby her character is degraded ; it is humbly-conceived that no laws, divine or human, will compel a performance, or punish a breach of a promise so circumstanced. The consequences of a performance would be mutual, and perhaps equal wretchedness to both the parties. On what rational ground can a woman, in such a case, claim damages for the breach of a promise, the performance of which would entail misery upon her for life ?</p> <p>The case of Foulkes vs. Sellway (3) is directly in point, and if, being a nisi prius decision only, it is not received as authority, yet the sound reason of the case cannot fail of having weight with the Court. The witness, in that case, appears to have been sent to the place where the plaintiff lived, to look up the blemishes in her general character. Yet Lord Kenyon admitted him, and observed that character was • the only point in issue. That was public «pinion, founded on the conduct of the party, and was a fair subject of inquiry; his lordship, therefore, thought that what that public thought was evidence on the issue as it then stood.</p> <p>If we are' to be told that it was our duty to have known the plaintiff’s character, and our folly to make a promise of this kind without previous inquiry, we answer that, besides the indelicacy of such an observation in the mouth of the plaintiff, it is well known that the character of a female is a subject always treated with tenderness, and that persons of the condition in society, which would justify an inquiry of them, would be extremely unwilling to injure a character not altogether sunk in infamy, especially in the estimation of one supposed to be in the relation of a lover.</p> <p>[ * 191 ] * Whether the lewdness suggested was in fact before the promise was made, or afterwards, cannot be material. The discovery of it, let it have happened when it may, upon every principle of morality and sound policy, operates to release the party from the obligation to fulfil the promise.</p> <p>The plaintiff’s counsel were stopped by the Court.</p>

Debt on a judgment of the Court of Common Pleas, for this county.

This was a writ of replevin, to which the defendant pleaded, in abatement, that, at the time of the service of the writ, it was not endorsed by any responsible person with his Christian and surname, as the law requires. To this plea the plaintiff demurred, and the defendant joined in demurrer.

The declaration was in assumpsit, and contained two counts. The first count states, that the defendants on the 4th day of May, 1798, contracted with the plaintiffs, to make and complete a turnpike road from the house of-Graves, in Palmer, to the house of Reuben Sikes, in Wilbraham, by the 15th day of September, 1798, in the manner specially stated in the count; and then alleges, that, although the defendants proceeded to make the road, they did not complete it * agreeably to…

This was a real action brought to recover a certain tract of land described in the declaration, as follows: “A certain tract of land lying and being in Brimfield, aforesaid, containing one acre, lying and being on the easterly and southerly side of river in said Brim-field, and bounded westerly and northerly on said river, and on every other side on land in possession of said Abner.” After issue was joined, and while the cause was on trial before Sedgwick, J., at the last…

<p>This was assumpsit, on a promissory note made by the defendant, for 1131 dollars, 31 cents, payable to Thomas Dwight, or his order, on demand, dated September 10, 1804, and endorsed to the plaintiff. Upon the general issue pleaded and joined, the cause was tried before Sewall, J., at the December adjournment, 1805.</p> <p>At the trial the parties agreed to the making and endorsing of he note; and it was further agreed that the action should be considered as between the original promisee and the promisor. Thereupon the defendant, to show that the sum of 118 dollars, 25 cents, ought to be deducted from the amount of the note, gave l * 212 ] in evidence a letter from said * Dwight, to the defendant, dated May 19, 1802 (in which he informs the defendant that he sends therewith 200 tickets in the South Hadley canal lottery, and requests him to put them into such hands as he, the defendant, shall think safe, taking receipts therefor, and engaging him a compensation for his trouble). Also an account stated, of which the balance agreed with the amount of the note, on the back of which was a memorandum, written by said Dwight, which admitted that the sum of 118 dollars, 25 cents, was due to the defendant, from purchasers of the said tickets, and that the recovery of that sum was doubtful.</p> <p>The defendant also read in evidence the memorandum on said note, in the handwriting of the promisee (purporting that the defendant had suggested doubts whether he should be able to collect moneys due from certain individuals named, amounting to the last-mentioned sum, and wished to be considered by the managers of the lottery, or the proprietors of the canal, and to have that sum deducted from the amount of the note).</p> <p>And the defendant’s counsel, to prove the payment of a further sum of 40 dollars, offered, in evidence to the jury, a paper purporting to be a receipt for that sum, to be paid to said Dwight, or his attorney, and signed by James S. Dwight. Jonathan Dwight, jun., was produced as a witness, and proved the handwriting of James S. Dwight, and also swore that the said James and himself commonly kept their accounts of cash together, and made no separate accounts; that the witness was the attorney of Thomas Dwight, and at that time had the note in possession, but did not know that the said sum had ever been received by him, or had ever come to the use of the said Thomas.</p> <p>The judge refused to let the said receipt go in evidence to the jury; and directed the jury, that the said letter did not show that the defendants had authority to sell the tickets on credit, on account of the managers, and that by making said note, the defendant had precluded himself from claiming or demanding said deduction. To these opinions of the judge, the defendant’s counsel filed exceptions. There was a verdict for the plaintiff, and the action was continued to the next April term, when Scwall, J., again sitting in court, deeming *the said exceptions to [ * 213 ] be frivolous and immaterial, entered judgment according to the verdict, and awarded execution.</p>

<p>This was an action of trespass quare clausum fregit. Upon the general issue pleaded, the cause was tried before Sedgwick, J., at the last December adjournment. At the trial, it appeared in evidence that the plaintiff, having an execution against the defendant Potter, on the 17th day of June, A. D. 1801, caused it to be levied on the land described in the declaration, the same being the proper!) of Potter, and in his possession, and that the execution was duly returned and registered. It did not appear that the plaintiff had other of said close, or to the issues and profits [ * 216.] * thereof, than what he derived merely from the levy of the execution, as aforesaid, and the return and registry thereof, the said Potter being in possession thereof at the time of the levying the said execution, and ever since, and for twenty years before. The defendants’ counsel objected at the trial, that upon these facts, the plaintiff could not by law maintain his said action of trespass against the defendants. This objection was overruled by the judge, and a verdict found for the plaintiff, whereupon the counsel for the defendants filed his exception to the said decision and opinion of the judge, and now moves for a new trial on that ground.</p>

This was an action of the case upon a promissory note, made by the defendant to the plaintiff, for 450 dollars, payable in nine years from the 18th of May, 1803, with interest from that day, the interest to be paid annually; and the plaintiff avers that the interest amounted on the 19th of May, preceding the commencement of the action, to the sum of 81 dollars, and that said last-mentioned sum became due on said last-mentioned day, and payable to the plaintiff, by virtue of…

<p>A declaration in trespass-for entering the plaintiff’s house, taking his goods, and terrifying, and falsely imprisoning his wife, is good after verdict; and the injury to the wife shall be taken as matter of aggravation only.'</p>

The writ of error in this case was brought to reverse a judg merit of the Court of Common Pleas for this county, which was rendered upon an appeal from the judgment of a justice of the peace. The original action was trespass against the plaintiffs in error, and a third person, brought by the defendant in error, for an injury *o his horse.

<p>A promisee of a note endorses it specially, thus: “ For value received, I order the contents of this note to he paid to A. B., at his own risk.” In an action on such note by the endorsee against the promisor, the promisee is a competent witness to prove the execution of the note. Such special endorsement transfers the property of the note, with its negotiable quality, to the endorsee.</p>

The declaration in this case contained two counts. The first was trover for a yoke of oxen; the second was upon the custom charging the defendant, as an innkeeper, with negligently keeping the plaintiff’s oxen, and permitting them to go at large, whereby they became wholly lost to the plaintiff.

<p>The Sessions cannot lay out or alter a highway, without a previous application ¡ nor can they adjudge such way or alteration to be of common convenience or necessity, until after notice to the town.</p>

<p>This was an action of trespass, brought against the defendants, who were assessors of the town of Petersham, for illegally assessing the plaintiff towards a tax voted by a school-district in Petersham,, of which the plaintiff is an inhabitant. A case was made for the opinion of the Court, and if that # opinion [ * 231 ] was in favor of the plaintiff, the defendants agreed to be defaulted, and that judgment be rendered against them, for the sum assessed on the plaintiff with interest and costs; otherwise the plaintiff was to be nonsuit, and the defendants recover their costs.</p>

<p>In the original action, of which this is a review, the plaintiff recovered eleven dollars damage. The Court adjudged him full costs, being of opinion that he had a reasonable expectation of recovering larger damages than four pounds (1). The plaintiff brought this review, with a view of obtaining larger damages. He recovered but one cent on the review.</p>

This was an action of debt, on an administration bond, brought in the name of the judge, and was endorsed thus: “ This suit is commenced for the benefit and use of Winthrop Ward, and William Ward, children and co-heirs, devisees and legatees of Jonathan Ward, late of Southborough, deceased.” At the last September term, in this county, the parties, by a rule of the Court, referred the action to the determination of certain referees, who now report their opinion that the…

<p>The three subscribing witnesses to a will must be produced at the probate thereof! if living, and subject to the process of the Court.</p>

This was an action pending in Suffolk, upon a policy of insurance upon the ship Elizabeth, her appurtenances and outfits, and on he freight from Boston, to one or more ports beyond the Cape of Good Hope, one or more times, for the purpose of procuring a homeward cargo, and at and from thence to her port of discharge in Europe, or the United States, with liberty to touch at the usua. places, for refreshments, &c. 7000 dollars were insured, viz., 4500 on the ship and…

This was an action of the case against the defendant, as sheriff of the county of Kennebeck, for not returning an execution, and for not paying over to the plaintiff, moneys received by him in satisfaction of the execution after the return day.

This was a writ of error brought to reverse a judgment of this Court rendered at October term, A. D. 1804, against the plaintiff in error, in an action of debt upon a bond given by him, for the faithful execution of the last will and testament of Enoch Glover, deceased.

<p>The fifth section of the act for the punishment of incendiaries, &c. (1804, cap 131.) has relation to the first and second sections only.</p>

<p>In this action the plaintiff, as he is administrator of Anna Dean, deceased, demands possession of a certain parcel of land in Jtay?iham, and says that his intestate, while living, and within thirty years last past, viz., on the 28th day of April, Anno Domini 1798, was seised and possessed thereof, and afterwards, in the same year, died so seised; and the plaintiff further says that he now ought to be in the possession thereof, to administer the same according to law, the personal estate of the intestate being insufficient to pay her debts, legacies, funeral charges, and charges of administration; but the defendant hath since unjustly, and without judgment, entered into the demanded premises, and deforced the plaintiff therefrom, and still unjustly holds him out.</p> <p>Upon the general issue pleaded, a verdict was rendered for the plaintiff, by agreement of the parties, subject to the opinion of thé Court on these facts, viz., that the plaintiff’s intestate left sufficient personal estate to pay all debts due from her at the time of her decease, and the charges of her funeral; that the plaintiff hath settled a second administration account, which is in the case ; if the Court are of opinion that the plaintiff, upon these facts, can maintain this action, judgment is to be entered accord- [ * 259 ] ing to the verdict; otherwise the verdict is to be set aside, and the plaintiff to become nonsuit.</p> <p>By the second administration account, referred to in the above agreement, it appears that a balance of 29 dollars, 56 cents, remained due to the plaintiff, in his capacity of administrator: the principal part of the plaintiff’s charges against the intestate’s estate consisted of labor and expenses about one or more lawsuits with the present defendant.</p>

<p>Debt for two penalties of ten dollars each, for detaining the plaintiff’s vessel more than five minutes two several times, without raising the draw of the bridge, as the plaintiff says the proprietors by the provisions of the act incorporating them, were bound to do.</p> <p>Upon the general issue pleaded, a verdict was taken, at the last October term, for the plaintiff, subject to the opinion of the Court, upon a case agreed by the parties, in substance as follows:—</p> <p>The plaintiff’s vessel was of that description commonly called lighters, ol twenty tons burden, without a deck, and with a movable mast so large as to require more than one man to take it down. At the times mentioned in the declaration, the said lighter was deeply loaded witli bricks taken on board below either of the ancient bridges hereafter mentioned, and could not pass said draw with the mast standing, unless the draw was raised. At the times mentioned t was inconvenient to take down the mast; the wind was fair, and it would have been convenient to the plaintiff to pass the draw with the mast standing. There are divers small vessels which pass up and down the river, without decks, and without fixed masts, commonly called lighters, and not commonly called vessels. Above the bridge, mentioned in the declaration, there are, and for a long time before said bridge was built, were two ancient bridges [ * 264 ] over the same rivér, not * furnished with draws. Lighters used upon the river are made with movable masts, to take down when there is occasion to pass the said ancient bridges, or when the wind is contrary. These lighters seldom pass out of the river. There are also a number of decked vessels which navigate the river, for which the draw is taken up when they have occasion to pass the bridge; and these are called vessels, and not 'ighters.</p> <p>If, upon these facts, the Court should be of opinion that the plaintiff’s lighter was a vessel, within the meaning of the third section of the act authorizing the defendants to build the said bridge, judgment is to be entered for the plaintiff according to the verdict; otherwise he is to be nonsuit.</p> <p>The third section of the act (1) incorporating the proprietors, authorizes them to build a bridge over Taunton Great River, at a place described, with a convenient draw for the passing of vessels, at least twenty-eight feet wide, with strong abutments, and a sufficient pier on each side to secure all such vessels as may attempt to pass through said draw, free of wharfage or expense of any kind : “ And the said proprietors shall constantly keep some suitable person or persons at said bridge, who shall raise said draw for any vessel that may be passing up or down the river aforesaid, without toll or expense; and in case any vessel about to pass said bridge shall be detained, at the draw more than Jive minutes before the same shall be begun to be raised, the proprietors of said bridge shall forfeit and pay to the owner or owners of such vessel, the sum of ten dollars for each and every such detention, to be recovered by action of debt in any court proper to try the same.”</p> <p>The cause was argued at the last term, and continued nisi for judgment.</p>

<p>When a corporation, dissatisfied with the damages reported by a committer for .aying out a highway, applies to the Court of Sessions for a jury, by whom the damages are reduced, no costs arising upon such application can be taxed for the owner of the land.</p>

<p>A debtor’s return into this government, from which the statute of limits ’ions begins to run, must be such a return as wilh enable his creditor, using reasonable diligence, to arrest his body as security.</p>

<p>The declaration was in case, and set forth a promissory note from one John Ames, payable to the defendant, for 118 dollars with interest; after which the declaration proceeds:—“And the said Oliver there afterwards, on the same day, by his writing under his hand on the back of said note, in consideration that the plaintiff had loaned to the said John, brother to said Oliver, and with whom the said Oliver then had a subsisting connection, 118 dollars, the said Oliver then and there promised the said Elisha to guaranty to him the payment of the contents of said note on demand, and then and there, in consideration of the premises, promised the plaintiff to pay him the contents of said note, agreeably to the tenor of the same; yet, though requested,” &c.</p> <p>Upon the general issue pleaded, the cause was tried before Parker, J., at the last May term, when a verdict was given for the plaintiff, subject to the opinion of the Court, upon a report of the evidence to be made by the judge who sat in the trial.</p> <p>By that report it appeared that John Ames, being indebted to the plaintiff upon a promissory note of an anterior date to that of the note described in the declaration, the plaintiff demanded security. John offered his brother Oliver as surety, whom the plaintiff agreed to accept. The present note was accordingly made by John; payable to Oliver (but not to his order), who endorsed it in blank. The plaintiff received it, and delivered up the former note to be cancelled.</p> <p>The plaintiff wrote over the defendant’s name on the back of the note, as follows:—“In consideration of the subsisting connection between me and my brother John Ames, and in consideration of receiving from Elisha Josselyn a note of the said John of the same amount, I promise and engage to guaranty the payment of the contents of the within note to the said Elisha Josselyn, on demand.”</p> <p>There was evidence of the defendant’s confession that he was answerable to the plaintiff for the debt, and that he expected to pay it. No demand on John, or notice to the defendant, was proved.</p>

<p>Trespass for taking and carrying away two cows of the plaintiff's, of the value of fifty dollars.</p> <p>The defendants pleaded the general issue, which was joined by the plaintiff. They also filed a brief statement pursuant to the statute*of 1792, c. 41, in which they allege that they were regularly chosen, and duly qualified to act as assessors of the north parish in Harwich, for the year 1804, which parish, they say, comprehends the whole of the town of Brewster, and part of the town of Harwich ; that the plaintiff was an inhabitant of the said parish, and, with his estate real and personal, liable to pay all parish taxes; that in the parish tax for the said year, which was duly voted, and by the defendants assessed, the plaintiff was assessed the sum of 13 dollars, 71 cents, being his just proportion of the tax; which he having refused to pay, the collector of the parish, to f * 277 ] whom the tax was committed, took * the two cows mentioned in the plaintiff’s declaration, and disposed thereof according to law, to discharge the plaintiff’s said proportion of the tax aforesaid.</p> <p>At the trial, which was had at the last October term at Barn-stable, before Parker, J., the existence of such a parish being questioned, the records were produced, which bore date as early as March 25, 1747. The choice and qualification of the defendants as assessors, and of the collector, were regularly proved ; and it was conceded by the counsel for the plaintiff, that the tax was legally made as to proportion, and that the plaintiff was assessed in the sum of 13 dollars, 71 cents, which he had refused to pay, after demand.</p> <p>The defendants showed, by the records of the parish, that the plaintiff, in 1790, was chosen to, and accepted the office of assessor for the said parish; and that, in 1799, he acted as moderator of the parish meeting, and was also chosen assessor and member of a committee, in which offices he served. It was also proved that he, with his family, attended public worship in the meeting-house of said parish, and paid his taxes there until the passing of the act to divide the town of Harwich, and incorporate the northerly part thereof by the name of Brewster.</p> <p>These facts were declared to the jury by the judge to be satisfactory evidence of the existence of the parish, and of the habitancy of the plaintiff within it.</p> <p>The plaintiff, in answer to the foregoing facts, showed the act of 1802, c. 76, for dividing the town of Harwich, and relied upon the second section thereof, which provides that certain remonstrants, as they are called, living in the north parish, shall have liberty to remain to the town of Harwich, on complying with certain formalities. He then showed that he was within the said provision.</p> <p>The plaintiff’s counsel contended that by law his connection with the north parish ceased and determined, and' that, by the act aforesaid, the parish, if any existed, was merged or destroyed, the town of Brewster being created out of it, and that the right to exercise parochial authority over the plaintiff was gone.</p> <p>[ * 278 ] * The jury were directed that the act incorporating the town of Brewster did not operate to extinguish the power and authority of the north parish, the existence of which was recognized by the aforesaid act; that the privilege given by said act to the plaintiff and others to belong to the town of Harwich, though living within the lines of Brewster, was municipal, and not parochial ; that the north parish, and the plaintiff’s connection with it, continued, notwithstanding the act of incorporation aforesaid ; and, there being no controversy about the facts in the cause, the jury were further directed that the defendants had established their justification, and that the verdict ought to be, that they were not guilty.</p>

At the last July adjournment in Suffolk, B. Whitman filed a motion for a rule of Court against the respondent to show cause why an information, in the nature of a quo warranta, should not be awarded against him for claiming to hold the office of town clerk of Tisbury, in Dukes county.

<p>At the opening of the Court, W. Austin moved for a writ of protection to issue in favor of Mr. M’Neil. who was returned aa one of the grand jury, and who was apprehensive of an arrest.</p>

<p>A sheriff having collected money upon an execution not yet returnable, and of whom the money has not been demanded, cannot be held as the trustee of the judgment creditor on process of foreign attachment</p>

The original action was case against Thayer, for placing sundry logs in a highway in Cambridge, by means of which the plaintiff, Dudley, was thrown out. of his chaise, his ankle dislocated, his chaise broken in pieces, &.c. A verdict was given for the plaintiff, and the defendant, Thayer, brought his writ of review at April [ * 297 ] term, 1804, from whence * it was continued to the succeeding November term, when it was suggested on the record that the plaintiff in review…

<p>Assumpsit on a promissory note made by the defendant’s intes tate to the plaintiff. At the Court of Common Pleas the defendant pleaded the general issue, with a reservation to waive the plea and plead any other plea upon the appeal. The appeal was entered here at October term, 1804. The defendant now moved for leave to file a plea of the statute of limitations. This was objected to by the plaintiff, on the ground that the former plea ought to have been waived, and the new one tendered, at the first term in this Court.</p>

<p>This was a writ of error brought to reverse a judgment of this Court rendered at October term, 1799, upon a petition of the defendant in error, for partition of certain land in Woburn, * which he alleged to be holden by himself and the [ * 300 ] plaintiff in error, as tenants in common.</p> <p>The petition was originally presented at the Court of Common Pleas, and was brought up to this Court by appeal from a judgment on a sham demurrer. After a number of continuances, the parties appeared and agreed upon, and the Court did accordingly appoint A., B., and C., freeholders, commissioners to make partition of the premises as prayed for. The commissioners made return that, after being duly sworn, and after seasonable notice to the parties interested, they had set off to the petitioner his purparty by metes and bounds. The Court accepted the report, and gave judgment for the petitioner to hold his share in severalty, and to recover costs against Symonds, the respondent.</p> <p>The errors assigned were, 1. 2. The want of the interlocutory judgment quad partitio fiat. 3. There was no judgment that the partition of said premises should stand. 4. There was no judgment as to that part of the premises not assigned to the petitioner. 5. It does not appear by the record, that due and proper notice, or what notice was given to the parties by the commissioners. Nor, 6. That the commissioners were freeholders of or in said county of Middlesex. Nor, 7. That they were duly sworn. 8. The Court adjudged cost's to the petitioner, which by law ought not to have been. 9. The judgment was rendered that the petitioner should have his share of the premises in severalty, and nothing more; whereas the entry of said judgment on the record of the Court is also that he should recover his costs. 10. The general error.</p>

<p>In debt upon a replevin bond against the surety, the defendant pleads that the goods replevied were the proper goods of the plaintiff in replevin, and were attached and held as such by the defendant in replevin, who was a deputy sheriff, upon mesne process against the plaintiff in replevin. The plea was adjudged bad.</p>

<p>This was a writ of error upon a judgment of the Court of Common Pleas for this county.</p> <p>The defendant in error filed a complaint or information against the plaintiff in error before a justice of the peace, for this county, for taking certain fish in Merrimack river, contrary to the statute of 1789, c. 51 (1 Mass. Spec. Laws, 272), all the forfeitures imposed by said act being appropriated, one moiety to the poor of the town where the offence is committed, and the other moiety to the informant. The justice adjudged Melvin to pay a fine of five dollars and costs. Upon the appeal to the Court of Common Pleas, he was acquitted by verdict of a jury. It was therefore considered by the said court, that the said William Bridge take nothing by his complaint aforesaid, and that the said Benjamin Melvin be discharged and go thereof without day. Melvin thereupon moved for judgment for costs in his favor, which the Court denied. And this denial he now assigns for error.</p>

<p>An action of debt does not lie upon the award of damages by a committee of the Sessions, for locating a highway, although the report is accepted by the Sessions.</p>

<p>This was an action of trespass for taking, carrying away, detaining and converting certain goods and. chattels of the plaintiff.</p> <p>The defendants jointly plead the general issue, which is joined by the plaintiff. They also plead jointly in bar to all the trespass, but the force and arms and whatever is against *the [ * 311 ] peace. The material facts alleged in the bar are, that the goods were the property of Parker, one of the defendants; that he sued out a replevin directed to a coroner (the plaintiff being a deputy sheriff) to replevy the goods, which writ is described to be of the form required by the statute; that the coroner replevied the goods, and delivered them to the said Parker, and to the other defendants, who acted as his servants and at his request.</p> <p>To this plea the plaintiff demurs, and assigns for causes of demurrer, 1. The plea does not contain any answer to the force and arms, &c. 2. It is not alleged that Parker gave any bond to prosecute his writ of replevin, &c. 3. It is not alleged that the goods at the time when, &c. had not been taken as the property of the said Parker upon mesne process, by warrant of distress, or in execution. 4. The plea is double, as it sets forth two distinct matters in bar, viz. property in the goods in the said Parker, and the process of law, viz. a writ of replevin, by which the defendants pretend to have taken the same goods. 5. The plea amounts to the general issue.</p>

This was a writ of entry, in which the demandants counted on their own seisin, and a disseisin by the tenant, who pleads m bar, “ that, at the time of suing out the demandant’s * original writ, he had not, nor at any time since hath had, [ * 313 J and now hath not any estate in, or claim to, or possession of, the said demanded premises, or any part thereof, and this hr is ready to verify.

Ejectment for certain lands in Hopkinton, in this county, belonging to the Hopkins’ fund, so called.

<p>One permitbng his wife's mother to reside in his house, and affording her tne rights of hospitality, although forbidden by the husband of the mother, is not liable to the action of the husband for illegally harboring his wife.</p>

<p>One who has collected for an executor the amount due on a promissory note made payable to A. JB., executor, &c., is liable to a foreign attachment as the trustee of A. B. in a suit against him, for a demand due from him personally.</p>

<p>This was an action of replevin commenced by Samuel Pitts, the plaintiff’s testator, whose death was suggested upon the record of the Court below, and the present plaintiff was admitted to prosecute the action. After a verdict was found for the plaintiff in this Court at the sittings after the last October term, the defendant moved to arrest the judgment, because the said executor ought not to be permitted to prosecute this suit after the death of his testator.</p> <p>* And now, the counsel for the plaintiff contended [ * 322 ] that an executor may maintain replevin for the goods of the testator, though taken in his lifetime (1), and our statute (2) provides that in all cases, where the cause of action survives, executors and administrators of parties, dying pending the action, shall be admitted to prosecute or defend in such action.</p> <p>The defendant’s counsel declined arguing in support of the motion.</p>

<p>A neglect of a husband to provide a support for his wife, whereby she and her children are reduced to great distress, is no cause of divorce a mensa et thora.</p>

Tr¡s was an action of assumpsit, for the support of the widow Sarah White, and Lucy, her daughter, from Nov. 9, 1801, to June 8, 1802. The action was tried before the late Chief Justice Dana, at the October term, 1805, and a verdict found for the plaintiffs. The defendants moved for a new trial, on the insufficiency of a certain warning or caution made by the selectmen of Newton, in the year 1765, pursuant to the statutes then in force.

<p>Upon a rule entered into before a justice of the peace pursuant to stat. 1786, c. 21, it is necessary that a demand be annexed to the submission.</p>

<p>This was an action of trover brought by the plaintiff as assignee of one Wilkins, a bankrupt, for the conversion of certain promissory notes described in the declaration.</p> <p>October term, 1805, the action was submitted to the opinion of the Court on a case stated by the parties, from which, it appeared that Wilkins, the bankrupt, was, before and at the time of his bankruptcy, justly indebted to Winning, on a note of hand which Winning held against him; that about a fortnight before Wilkins's bankruptcy, he and Winning were together, when Winning told him that he did not like the appearance of things, and that he, Winning, must be secured ; that the evening before the bankruptcy, Wilkins, in contemplation of an act of bankruptcy, transferred the notes in question to Winning, as a collateral security for the payment of his said note to Winning, who then considered Wilkins to be insolvent and in failing circumstances; that Wilkins the next morning committed an act of bankruptcy; that before the commencement of this action, a commission of bankruptcy had issued against Wilkins; that he had been duly declared a bankrupt, and all his effects regularly assigned by the commissioners to the plaintiff, who had been duly chosen his assignee; and that the notes mentioned in the declaration' had been converted by the defendant.</p> <p>At the last October term, the plaintiff referred the Court to the following authorities, viz., Harman & Al. vs. Fisher, Cowper, 117.— Smith & Al. vs. Hodson, 4 Term R. 211.—Holbird vs. Anderson & Al., 5 Term R. 235.—Linton vs. Bartlet, 3 Wilson, 47.—Nixon & Al. vs. Jenkins, 2 H. Black. 135.— Cooke’s B. L. 85.</p>

<p>This was an appeal from a decree of the Probate Court, approving the will of Jepthah Richardson. The sanity of the testator being denied, an issue was made to the jury. On the trial, the Court permitted the subscribing witnesses to the will, to be inquired of, generally, as to the judgment they formed of the soundness of the testator’s mind, at the time of executing the will; observing, that the law placed them around the testator to try, judge, and determine, whether he is compos to execute it.</p>

Assumpsit for the premium upon a policy of insurance. The action was pending in Suffolk county, and was originally com aienced against John Lowell, Esq., deceased.

<p>This was a writ of right, in which the demandant claimed an undivided moiety of a certain parcel of land in Newburypcrt, bounded northwardly on Merrimack river. The writ was dated the 8th day of February, 1802, and alleges that Zaccheus Perkins, the 1 * 353 ] demandant’s father, was seised *of the same within sixty years from the date of the writ: that, on his death, the same descended to her as his daughter and heir, and that the tenant deforceth her.</p> <p>The demandant having obtained a verdict in the original action, the tenant brought his writ of review, upon which another trial was had before Parker, J., April term, 1806, when a verdict was again rendered for the demandant. The tenant moved for a new trial for the misdirection of the judge at the trial, and that motion came on now to be argued by Dane and Putnam for the tenant, and Jackson for the demandant, before Sedgwick, Seioall, and Parker, Justices • the Chief Justice not sitting, as he had been formerly of counsel in the cause.</p> <p>The report of the judge, who sat in the trial, states that the demandant, to prove the seisin of her ancestor, read in evidence the copy of a vote of the town of Newbury (1), passed 8 March, 1680, granting William Noyes a piece of land below high-water mark, to set a shop upon, and not exceeding forty feet in the front; also the copy of another vote, passed 9 February, 1721, granting to the same W. Noyes another parcel of land above high-water mark, and bounded northwardly thereby. The demandant then read a deed of Parker Noyes and his wife, who had the estate of the said W. Noyes, dated 10 November, 1740, of the same two parcels of land to Zaccheus Perkins, her father.</p> <p>On the 28th of April, 1741, the said Z. Perkins conveyed the same two parcels of land by deed to Spencer Bennett, who, on the 2d of March, 1742, conveyed one half of the house which had been built on the upland, and of the land upon which it stood, by metes and bounds, together with one half of the land and flats below the house in quantity and quality, to the said Z. Perkins.</p> <p>It appeared in evidence, by depositions in the case, that Bennett had, in 1740, lived in a house on the premises, and built a shop below the house on a wharf or breastwork, also built by him ; but it did not appear under whom he so occupied. It also appeared that the west end of the house and * the land [ * 354 ] back of it was occupied under Z. Perkins, and that the flats below were used in common by the occupants of each part of the house.</p> <p>It was also proved that, by the shifting of the channel of the river, the flats were much increased in extent, since the year 1740.</p> <p>The tenant produced in evidence a deed from a committee of the proprietors of Newbury, dated 15th of June, 1750, conveying, besides a piece of upland, “ a piece of flats of forty feet in breadth, running from the rear of W. Noyes’s grant down to the channel,” to Spencer Bennett, under whom, by the deed of said Bennett to James M’Hei 1, and by deed of the heirs or devisees of M’Herd to the tenant, he claims to hold.</p> <p>The tenant’s ccrunsel insisted, at the trial, that Z. Perlcins could have been seised of the flats only as they in fact existed at his death, and that none which had been made by alluvion could be recovered by the present demandant. The judge directed the jury that, if Perkins was seised of the flats within sixty years, whatever increase there had been rightfully accrued to the demandant as his heir.</p> <p>They also contended that the grant of the proprietors to Noyes passed to him no more of the flats than were sufficient to set a shop upon. Upon this point the jury were directed that, by the legal construction of the grant, it extended to low-water mark; which appeared, by the evidence in the case, to have been the construction given by all who had occupied under said grant.</p> <p>It was then contended that the deed from Bennett to Perkins did not necessarily create a tenancy in common; and that, if such was the legal construction of the deed, the jury might presume that a uartition had been made by the parties. The judge directed the ury that, by virtue of the said deed, Bennett and Perkins became tenants in common, and, there being no evidence of any holding in severalty, except of the upland, which severance was in conformity with the deed, there was nothing in the case from which a partition of the flats could be inferred.</p> <p>Another point made by the tenant’s counsel was, that [ * 355 ] Bennett, * having entered in 1740, and built a wharf, and afterwards having purchased of the proprietors, must be considered as having entered under the proprietors, and not under Z. Perkins. Upon this point the jury were instructed that Bennett having conveyed to Perkins in 1742, his purchase of the proprietors in 1750, provided he acquired any title by that purchase, inured to the use of Perkins, whom he had made, by his deed, tenant in common with himself.</p> <p>Finally, the judge directed the jury, if they were satisfied with the evidence of the demandant’s title, as she had set it forth, they might by their verdict find that, to all the demanded premises above low-water mark, she had a better right to recover than the said Frothingham had to hold; and their verdict was accordingly. To all which opinions and directions the counsel for the tenant excepted.</p> <p>And now, Putnam, in support of the motion for a new trial, contended that the grant to W. Noyes, in 1680, of a piece of land below high-water mark to set a shop upon, could, by no legal construction, be intended a grant from high to low water mark. The extent northwardly towards the river was uncertain by the words of the grant. It is true it might be made certain by the grantee’s taking possession of, and actually occupying to a certain limit. But this was a question of fact belonging exclusively to the jury. The distance from high to low-water mark might contain a space sufficient to set ten shops upon. The observation of Justice Buller, in the case of Macbeath vs. Haldimand (2), on the construction of letters, applies fully to this point. “ If they be written,” says the learned judge, “ in so dubious a manner as to be capable of different constructions, and can be explained by other transactions, the whole evidence must be left to the jury to decide upon; for they are to judge of the truth or falsehood of such collateral facts, which may !ary the sense of the letters themselves; but if they be not explained by any other circumstances, then like deeds, or other written, agreements, the construction of them is a mere matter of law.” In the case at bar, the tenant showed circumstances dehors the grant,- which went to explain * and limit the extent of [ * 356 ] the grant; yet the judge directed the jury, as a matter of law, that the grant should extend to low-water mark. In Doe vs. Burt (3), Justice Ashurst says, “ that the construction of all deeds must be made with a reference to their subject matter. And it may be necessary to put a different construction on leases made in populous cities, from that on those made in the country.” In the same case Justice Buller observes, that, “ Where there is a convey anee in general terms of all that acre, called Black-acre, every thing which belongs to Black-acre passes with it. But whether parcel or not of the thing demised, is always matter of evidence.”</p> <p>Put the case that one, owning a tract of land abutting on a street on one side, and extending thence in depth a mile, grants a part of it under the description of a house-lot of a definite width on the street, but without limiting its depth; would it be contended that the grantee might extend his location the whole mile ? Actual and undisturbed occupation would be the only mean by which the extent of the grant could be ascertained.</p> <p>All that the present demandant can have a pretence of right to, is so much as her father died seised of. It was in evidence that from particular causes, other than natural ones, there has been a considerable accession of land to that which existed in 1742. The doctrine of acquiring property by alluvion is confined to such increase as arises by insensible degrees (laiens incrementuni). and from natural causes. The increase in this case was from the erection of wharves above and below the premises in question, which is wholly an artificial cause (4).</p> <p>If Bennett’s deed to Perkins created a tenancy in common in the-land below the house, yet we contend the evidence of a several possession, from the date of that deed to the commencement of this action, was sufficient to support a presumption that partition had been made. The tenant, and those under whom he claims, had always a right to compel partition. In the case of Vandyck vs. Van Beuren 8f AL (5), it was held that a sole possession under [ * 357 ] claim of right *for forty years only by one tenant in common, amounts to an ouster; and the Court said not only that the facts raised the presumption, but that the jury were not at liberty to resist it. In Denn vs. Barnard (6), Lord Mansfield said, “ If no other title appears, a clear possession of twenty years is evidence of a fee.” In Fisher & Al. vs. Prosser (7), Ashurst, J., says the point was left to the jury, and the jury have presumed an actual ouster; and he adds, “ I think that after a quiet, uninterrupted and undisturbed possession of forty years, they were well warranted in so doing.” Now, if such a partition is presumed to exist, the demandant cannot recover in this form of action.</p> <p>The verdict in this case is so uncertain that the sheriff cannot deliver possession under it. Low-water mark is a very indefinite description of a boundary. Besides the difference between the receding of the water in spring and neap tides, the freshets, to which all long rivers, like the Merrimack, are subject, make a very essential difference.</p> <p>The Court will look with strictness on writs of right. They are not favored by the law. In the case of Charlwood vs. Morgan & Ux. (8), the mistake of a single Christian name made in deriving the demandant’s title was refused to be amended, although shown by affidavit to have arisen from mere accident. The chief justice there said, if the proceeding had not been by writ of light, the Court would have been willing to grant the amendment. But, considering how much that process had always been discouraged, how much tenants have been permitted to avail themselves of every advantage to defeat the claims of demandants, unless the precedent could be produced, the soundest exercise of discretion would be not to allow the amendment. “ Every one knows,” adds his lordship, “ the consequence of overturning titles which have been supposed to exist for near sixty years. Many great purchasers consider sixty years’ possession as the best title which can be made, and it has often been lamented, by eminent lawyers, that the period has not been * shortened, who have thought that sixty [ * 358 ] years was too long a time for titles to remain in dubio.”</p> <p>It cannot escape the observation of the Court how strongly these sound and sensible observations apply to the case at bar, in which but twenty days of the sixty years remained unelapsed at the date of the writ.</p>

The declaration in this action was in case, and contained the fol-owing counts, viz. 1st. Indebitatus assumpsit for 1491 dollars, 16 cents,… Held: by virtue of his being such original subscriber, associate, or assignee, in the aforesaid original stock of 100,000 dollars; and that if such original subscriber, associate, or assignee, after his subscription to said new stock as aforesaid, should pay into said company any such sums of money upon his shares so subscribed, and at…

The libel in this case, which was for a divorce a vinculo for the cause of adultery, alleged that since the intermarriage of the parties, the respondent had associated with divers lewd women, and had committed the crime of adultery.

<p>Assumpsit on a promissory note. By a case submitted for the opinion of the Court, it appeared that the note declared on, was given for the amount of the premium upon a policy of insurance, effected in the office of the plaintiff, an insurance broker. The defendants claimed a return of the premium, on the ground that the policy never attached, and this f action [ * 393 ] was to be decided on the same principles, as if it had been brought by the defendants against the underwriters for a return of premium, supposing the same to have been paid ; in other words, if the Court should be of opinion, from the facts stated, that in an action for money had and received, brought by the defendants, for a return of the premium, they would be entitled to a return of the whole, judgment in this action to be for the defendants; and if entitled to a return of a part only, judgment to be rendered for the plaintiff for the amount of the note declared on, deducting such part.</p> <p>The policy was upon effects on board the brig Essai, from the island of Sumatra, or any other port in India, to a port of discharge in the United States, with liberty to stop and trade at the Isles of France, or Bourbon, or both; the rislc of the present policy to commence when the outward insurance ceases, which it is understood was to continue till the outward cargo of merchandise and money was disposed of, and the return cargo on board. Premium twenty per cent.</p> <p>The outward insurance referred to, was effected in France, from whence the vessel sailed for India, and was upon merchandise .of whatever nature it may be, laden, or to be laden, on board the vessel named the Essai, from Bourdeaux, for India, with liberty to go to any port or ports whatever; the rislc to finish when the said vessel shall have safely arrived, and the master shall have entirely invested the above-mentioned dollars in the produce of said country, and have safely landed the merchandise.</p> <p>The vessel sailed from Bourdeaux for India, with French papers, and under French colors, on the 12th of January, 1803, with a cargo of merchandise and specie, with intent to dispose of said cargo at Sumatra, and there to purchase a return cargo of pepper. On the 25th of June following, the vessel arrived safely at Sumatra, where a part of the cargo was disposed of for pepper. The residue was not landed, the master having at this time received information of the renewal of hostilities between Great Britain and France; in consequence of which he judged it necessary, for the preservation of the vessel and cargo, to depart immediately from * Sumatra, there being English cruisers in the seas there- [ * 394 ] abouts; and accordingly, without completing his investments, he sailed, with the remainder of the outward cargo, and with the pepper purchased as aforesaid, for the Isle of France, where he arrived on or about the I Oth of December following, and vyhere he invested the remainder of his outward cargo in the produce of that island. From thence, after changing his French papers and colors for those of the United States, he sailed for Boston, where he arrived in April, 1804.</p> <p>It was agreed that the premium on a policy and risk like the piesent, from Sumatra to the Isle of France, would be six per cent.; and that among merchants the Isle of France is usually considered as being in India.</p> <p>If, upon these facts, the Court should be of opinion that the plaintiff is entitled to recover the whole, dr any part of the premium secured by the note declared on, judgment to be entered accordingly; otherwise judgment is to be rendered for the defendants.</p>

<p>This was a petition of a guardian of a minor, setting forth that Zhe personal estate of his ward was insufficient for the payment of his just debts, and praying for authority to sell so much of his real estate as shall be necessary for that purpose.</p>

The petition set forth that the minors, of whom the petitioners were the guardians, were possessed of a certain real estate, part of which it was necessary to sell for the payment of debts due from the minors, and that by a partial sale the residue would [ * 399 ] be greatly injured, and thereupon prayed authority * to sell the whole of the estate. The facts alleged were also certified to be true by the judge of probate.

<p>Upon a submission to referees before a justice of the peace, pursuant to the statute of 1786, c. 21, the demand annexed to the submission must be sub scribed by the person making it</p>

<p>After twenty years’ acquiescence by the heirs of an intestate, in the possession of the real estate of their ancestor, holden under a sale by the administrator, the Coi ‘rt will presume that the administrator took the oath and posted the notifications according to law, previous to the sale; evidence being given of the license to sell, and of the actual sale at auction.</p>

<p>Trover for a promissory note for 600 dollars, subscribed by Sivasey and Rogers, payable, with interest, to one Paul Pilsbury, or order, and endorsed by him to the plaintiff.</p> <p>Upon trial, before Sewall, J., at the sittings here, after the last November term, a verdict was given for the defendant that he was not guilty, which was taken, subject to the opinion of the Court, upon the report of the judge, the plaintiff waiving his right to review, and moving for a new trial.</p> <p>The case, as reported by the judge, was shortly this:—The plaintiff, having a demand on Pilsbury, for begetting her with child, employed the defendant to pursue the same in her behalf, and made him her attorney for that purpose. He went to Dover, in New Hampshire, where he found Pilsbury, and arrested him. The matter was then compromised by P.’s agreeing to give 300 dollars, for an acquittance in full. As payment or security for that sum, he delivered Day the note described in the declaration, and which he endorsed specially to Day, the sum of 300 dollars having been previously paid and entered upon the note. For the interest due, Day gave his own note to Pilsbury, and also gave him a full discharge in behalf of the plaintiff. These transactions were in January, 1805. In the course of the same month, the plaintiff applied to Day for a settlement, requesting him to collect some money for her, and offering. if she could have 100 dollars upon the note, to let the vest remain in his hands for two years, he paying her the interest. Day undertook to collect the 100 dollars, observing that he must deduct 27 dollars, for the note he had given Pilsbury on account of the interest, and that she might have the whole i sum due, if she should want it, upon two days’ notice. After this she demanded the note, and was refused. In the following March she employed Pilsbury to demand and recover the note from Day, and gave him a power of attorney for that purpose, in pursuance of which, he repeatedly demanded the note, and was refused; but at- the last time Day proposed a settlement, and claimed to have an allowance of 30 dollars for his time and expenses in the service of the * plaintiff. Pilsbury refused to make him the allowance, [ * 404 ] and Day refused to deliver up the note. It was agreed that Day did collect 100 dollars upon the note, of which he paid the plaintiff 70 dollars, retaining the other 30 by her consent; and that she had also paid him the sum of 10 dollars, for which she had no receipt or voucher.</p> <p>Upon this evidence the jury were directed that the special endorse ment upon the note, and the other circumstances in evidence, had made it the property of the defendant; and although he might be accountable for the amount of it in another form of action, yet that he was not liable in this action.</p> <p>And now, Livermore, in support of the motion for a new trial contended that the note in question vested in the plaintiff, and became her property on the delivery of it to the defendant, who received it as her agent only.</p> <p>Property in a personal chattel, or a right to the possession ot it, is sufficient ground to maintain an action of trover against one possessed of the chattel, by whatever means he may have become possessed of it.</p> <p>When the defendant had discharged Pilsbury of all the plaintiff’s claims upon him, and had received this note in satisfaction, he received it solely for her use, and his afterwards procuring it to be specially endorsed to him was a tortious conversion of it to his own use (1).</p> <p>The Court suggested to Livermore that his declaration described a note as endorsed to the plaintiff, and the evidence was of a note endorsed to the defendant; and they thought the variance fatal.</p> <p>Livermore thought the particular recital of the endorsement was unnecessary, and hoped the Court would reject it as surplusage, in a case where the equity was so clearly and strongly with the plaintiff.</p> <p>The declaration was afterwards amended by consent, by striking out the recital of the endorsement to the plaintiff.</p> <p>Prescott would have argued against the motion, but was informed by the Court that it was unnecessary.</p>

<p>The necessity or convemer.ce of an alteration in a highway, and the unreasonableness of the damages awarded, are subjects not within the jurisdiction of this Court, but belong exclusively to the Sessions.</p> <p>Where a warrant to a locating committee particularly describes their whole duty, an oath faithfully and impartially to perform the service' to which they are appointed, or faithfully and impartially to discharge the trust reposed in them, is sufficient.</p> <p>When a town has appeared at the Sessions, and opposed the acceptance of the report of a locating committee, without objecting the shortness of. the notice given by the committee to the town, this Court will not quash the proceedings of the Sessions on account of such shortness.</p> <p>Establishing an alteration in a highway, is in law a discontinuance of the part altered.</p> <p>Where no time is allowed by the Sessions for the owner of land, over which a highway is laid, to remove wood, &c., this Court will not presume that any wood, &c., was growing on the land.</p>

This was an action of trespass for an assault and battery. The defendants severally pleaded not guilty, and upon the first trial, the jury, finding them both guilty, assessed damages against them jointly, in the sum of ten dollars. The plaintiff reviewed the action, and at the last April term, in this county, the jury found Morbinger not guilty, and Pitman guilty, against whom they assessed damages in the sum of sixteen dollars and seventy-five cents.

<p>A ship, cargo, and freight, are insured “ from Boston to the Canaries, at and from thence to any port or ports of Spanish America, and at and from thence to her port of discharge in the United States, under whatever papers she may sail. She goes safely to the Canaries, and from thence under Spanish colors, and with Spanish papers to Vera Cruz, where the outward cargo is landed, and afterwards seized by the Spanish government as an illegal importation; the master remains with the ship five months at Vera Cruz, prosecuting the recovery of the cargo. Failing in that object, he takes a cargo on freight for the Havanna, at which place he was to exchange his papers, and thence return , to the United States. On her passage to the Havanna, the ship is captured and condemned.</p> <p>It was held that the stay at Vera Cruz was not, and that the voyage to the Havanna was, a deviation.</p>

<p>The tenant, in the actual occupation of land, is liable to be assessed for it, in ■ parish taxes, and not the owner of the land, who lives in another town.</p>

<p>Trespass for an assault and battery, and false imprisonment. As to the force, &c., the defendants plead not guilty, and issue is joined by the plaintiff. As to the residue of the trespass, they justify as assessors of the first parish in Newbury, for the yeai 1804, and set forth sundry resolves of the General Court, authorizing the assessors to reassess the parish taxes for the year 1796, which had been found illegally assessed, and their proceedings in pursuance of said resolves. The plaintiff replies de injuria sua proprio, and traverses the legal reassessment in 1804. The defendants join issue upon the "traverse, and upon trial of these issues, before Sewall, J., at the sittings after the last November term in this county, a verdict was rendered for the plaintiff, I * 430 ] * subject to the opinion of the Court upon a report of the case by the judge who sat on the trial.</p> <p>In support of their special justification, the defendants produced at the trial a book containing what they contended ought to be considered as a list and valuation required by law. On the first page of this book was written a schedule of taxable articles, including real and personal estate, as houses, acres of land of different, descriptions, horses, cattle, &c., and a value or price set against each article. The rest of the book .contained the tax for the year, in which was the plaintiff’s name, and the amount of 15 dollars, 68 cents, set against it, as the tax on his poll and estate. And it was admitted that the plaintiff was, in 1796, a resident in the said first parish, and there liable for parish taxes; and that a notification was made to the inhabitants to return a list of ratables, and that no sts were brought in previous to the assessment in 1796.</p> <p>It clearly appeared in evidence that no other list, or valuation, or invoice, than the one above described, had been prepared.</p>

<p>In assumpsit for not accounting for merchandise consigned to the defendant’s intestate, to be carried to Batavia, and there be disposed of for the plaintiff’s benefit, the parties agreed on a statement of facts, from which it appeared that the intestate received the merchandise mentioned in the declaration, to carry in the ship Franklin, J. D., master, the intestate being the second mate, on the account and risk of the plaintiff, to sell the same for the most it would fetch, and invest the proceeds in such other goods as he, the intestate, should think would yield the most profit, for which he was to receive one half the net profits in lieu of freight and commissions. The outward adventure was sold at the Isle of France, and the proceeds carried in specie to Batavia, whither the plaintiff knew the ship was bound, and he was acquainted with the usages of trade there. On the ship’s arrival at that place, the master of the. ship gave bond that he, his officers and crew, should conform to the revenue laws, against the violation of which he particularly cautioned the officers and men. The risk of illicit trade at Batavia was very great, all commercial intercourse being confined to the masters and supercargoes of ships. The master of the ship, while on shore, sent a messenger on board for the private adventures belonging to himself, his officers and crew, to lay [ * 435 ] * out for them. All the people, except the intestate and one other officer, complied with the order, and those two, the day before the ship sailed, carried their money, including the proceeds of the plaintiff’s adventure, on shore, in expectation of purchasing coffee. Not being able to procure the coffee, they were returning with the money in the boat to the ship, when the officers of the government seized it for a breach of the revenue laws, which prohibit money once landed to be brought away without a special permit from the government, and the money was lost. The defendant’s intestate had been in Batavia with the same master before. If, upon the facts, the Court should be of opinion that the plaintiff was entitled to recover, judgment to be entered for him for 185 dollars, 85 cents; if not, he was to become nonsuit.</p>

Assumpsit for the maintenance of Elizabeth, the wife of William Stimpson, he being described as an inhabitant of Andover, and of three of his children. The declaration contained three counts: the first was a general indebitatus assumpsit; the second was a quantum meruit; and the third was for money laid out and expended. The general issue was pleaded and joined.

<p>Money was lent on a bottomry bond, conditioned that if the vessel should perform the voyage, the money should be paid in twenty days after her arrival; if she should be lost through perils of the seas, or by fire, or the enemies of the United States, the bond to be void. The vessel was captured by a British cruiser and condemned as lawful prize; upon the appeal, the condemnation was reversed, and full compensation received by the owner, for vessel, cargo, and freight, by virtue of an award of the commissioners under the treaty of November, 1794.</p> <p>It was held that the obligee could not recover in an action of debt brought on the bond.</p>

This was an action upon a policy of insurance, dated June 8th, 1800, whereby the defendants undertook, for a premium of 30 per cent., to insure the plaintiffs “7500 dollars on the cargo or freight of the ship America, at and from Teneriffe, to the port of discharge in the West Indies, or Spanish America, and at and from thence to the port of discharge in the United States, with liberty to proceea from the West Indies or Spanish America to Europe ; both or eithei to the…

This was an action of the case upon a special agreement stated in the declaration.

<p>This was trover for sundry articles formerly the property of the bankrupt, and which the plaintiff charges the defendant with having converted to his own use.</p> <p>The cause was tried at the sittings after November term, 1806 before Seivall, J., whose report follows.</p> <p>“ The Newburyport Marine Insurance Company, in the Court of Common Pleas for the county of Essex, July term, 1802, recovered a judgment against Edmund Bartlet, since declared a bankrupt, and on the 10th day of the same July sued out an execution thereupon. In the same month, Richard Bartlet was employed by the said Edmund, and his father, William Bartlet, to settle Edmund’s books, and having ascertained, among others, the balance due from him to his brother-in-law, George Jenkins, a negotiable note was given therefor by the said Edmund, to the said George, dated August 2d, 1802, for the sum of 2556 dollars, 75 cents. About this time, also, the said Richard prepared a list of Edmund’s debts generally, which, with a statement of his affairs, were laid before his creditors at a meeting called for the purpose. At that meeting, a Mr. Cartel and another person being present for the Insurance Company. Edmund requested to have the advice of his creditors; to which the said Carter replied that the company had no opinion or advice to give, but came to hear his proposals. At a second meeting of the creditors, holden a few days after the first, Mr. Stocker, president of the company, being present in their behalf, certain proposals by W. Bartlet, the father, for the settlement of his son’s affairs, were laid before the creditors; with which they declared [ * 488 ] themselves satisfied, * and ready to accept them. At a third meeting of the creditors, after writings had been prepared pursuant to the proposals of W. Bartlet, Mr. Jackson, counsel for the Insurance Company, attended in their behalf, and gave notice that the company would not accede to the intended compromise, unless there could be a previous adjustment of a dispute between them and the said Edmund respecting a loss claimed by him upon a certain policy of insurance.”</p> <p>“ It being thus understood that Edmund Bartlet was in doubtful circumstances, and there being in the hands of the defendant, a deputy sheriff for the said county, the execution sued out by the-Insurance Company as aforesaid; the said Edmund being at the counting-house of his father on the 17th of September, 1802, the father inquired whether there were not several articles belonging to the new vessel (referring to a vessel then lately built by the said Edmund), which lay exposed to be taken by an attachment or execution, and said, if so, they ought to be secured by a bill of them to him, and he would take care of them. A bill of parcels without seal was then made of a quantity of rigging and two boats, articles which had been provided for the said new vessel, which was signed by the said Edmund, and thereby the articles mentioned therein were transferred to the father as bought by him ; but no money was then paid, nor any credit given for the amount, although he was at that time a creditor to his son for a very large amount. The father had the rigging removed immediately from Edmund’s warehouse, or one occupied by him, to a warehouse of the said William, near where the said new vessel lay at that time ; and it appeared that the whole of the rigging was soon afterwards put upon that vessel; but the boats mentioned in the bill were never obtained, the builder, who had not been paid for them, refusing to deliver them.”</p> <p>“ On the 21st of September, the defendant, Bagley, by virtue oí the execution in his hands in favor of the said Insurance Company, took the articles mentioned in the plaintiff’s declaration, being the goods of the said Edmund.”</p> <p>Afterwards, on the same day, the said Bagley received of Mr. Hodge, an attorney at law, a writ against Edmund * Bartlet at the suit of Oliver Osgood, which had been [ * 489 ] prepared in the July preceding at his request, and by concert between him and tne said Edmund, with the intention of making him a bankrupt. The service of it was deferred at the request of Edmund Bartlet, because, as he said, he was not then ready. But September 21st, Edmund Bartlet requested Bagley to apply for the writ; and by agreement and concert between them, the said Bagley, at the hour of nine or later in the evening, applied at the dwelling-house of Edmund Bartlet, and endeavored to serve the writ upon him, but was denied admittance by the said Edmund, then in the house.”</p> <p>“ On the 24th of the same month, the district judge granted a commission of bankruptcy against the said Edmund Bartlet, at the suit and upon the petition of the said George Jenkins, and under that commission Edmund Bartlet has been since declared a bankrupt, and the said Jenkins’s debts, viz., the said note of 2556 dollars, 75 cents, given in the August preceding, and another note of 400 dollars, dated June 22d, 1801, have been proved and allowed. The defendant admits that Edmund Bartlet was a trader within the meaning of the statute of bankruptcy.”</p> <p>“ On the 25th of September, William Bartlet notified the defendant that a commission of bankruptcy had been taken out against the said Edmund, and forbade any sale of the goods taken by force of the said execution; but the defendant proceeded notwithstanding, and on the same day sold the said goods at public auction for the prices, and according to the return of the said execution, a copy of which is in the case. The sale was pursuant to advertisements made as the law requires, excepting that certain articles, taken and sold under the execution, had not been spe cifically mentioned in the previous advertisements.”</p> <p>“ There was no evidence that Jenkins, the petitioning creditor, .had any knowledge of the concert and agreement between Edmund Bartlet and the said Osgood and Bagley respecting the writ, which the latter attempted to serve on the 21st of September; and it appeared that in the petition, upon which the said commission issued, there was no specification of any act of bankruptcy, | * 490 ] biit several acts of * bankruptcy, such as the statute requires to be proved, were alleged in general terms.”</p> <p>“ It also appeared that upon certain allegations of the said Insutanee Company, and their prayer against the said commission, and to have the same superseded, certain proceedings and a verdict of a jury thereon were had before the said district judge, copies of which are in the case.”</p> <p>“ It also appeared that the new vessel, upon which the rigging transferred by the said Edmund to his father was finally put, had been, before the said transfer, mortgaged to one Pierce to secure a debt of the said Edmund, and he had assigned her to the said William, upon receiving his personal security for the same debt. And after the said rigging was put upon the vessel, the said William sold the same, and accounted with the plaintiff for the proceeds, and deducting the sum due to the said Pierce, and some other sums due to himself, the said William paid a balance to the plaintiff as assignee of Edmund Bartlet.”</p> <p>“Upon this evidence the jury returned a verdict for the plain tiff, and assessed his damages at 4171 dollars, 55 cents, which was taken subject to the opinion of the Court upon the case.”</p> <p>The principal question which came on at this term to be argued was, whether Edmund Bartlet, the supposed bankrupt, had committed an act of bankruptcy before the 21st day of September, 1802, the day when the defendant’s qualified property in the goods commenced by his seizing them upon the execution which he then held in favor of the Neioburyport Marine Insurance Company</p> <p>Livermore said he should contend that the sale by the bankrupt to his father, on the 17th of September, was a complete act of bankruptcy, within the description in the statute for establishing a uniform system of bankruptcy throughout the United States. 1st. It was making a fraudulent conveyance of his chattels, and if he should fail in establishing this point, he should argue, 2. That it was a concealing of his goods to prevent their being taken in execution.</p> <p>He was aware that an opinion was prevalent that a fraudulent conveyance, within the meaning of this statute, must be * by deed under seal. This opinion, he hoped to show, [ * 491 J was founded neither in principle nor precedent, but has obtained a currency merely from an obiter opinion that dropped from Lord Mansfield, while reporting the evidence at the trial of the action Martin & Al., Assignees, vs. Pewtress & Al. (1). As he should have to contend against the opinion of a very great man, ivhose most hasty sayings had been always viewed with respect, Livermore prayed permission to treat the subject much at large.</p> <p>The common idea attached to the word conveyance is no more than transfer, and that this is also the correct and legal meaning of it will appear from an examination into its origin, and its constant use by writers on law.</p> <p>Before the time of Lord Chief Justice Cake, all the reports and treatises upon law were written either in Latin or French; and most of the reports continued to be written in the old French down to the latter part of the reign of Charles the Second. The word convey is manifestly derived from conveho, to carry. The word conTiyer, in the Norman French, although derived from the same root, was never used to signify the alienation of estate. This word is not to be found in the abridgments of Fitzherbert or Brooke. In Perkins’s treatise, said to be first published 24th of Hen. 8, the word conveyer is used to signify the carrying water in pipes, and it is found in no other sense, though the book is entitled by its translator, “ A treatise on the laws of England on the various branches of con veyancing.” Littleton uses the word in a different sense, viz. to derive or transmit title by descent (2). Since the time of Lord Coke, the word has come into very extensive use.</p> <p>The word graunte [now grant] was generally used to denote the transfer of estate. Fitzherbert, Brooke, and every one who has published a digest or abridgment of the law down to the present day, place the law relating to the transfer of real or personal estate under this head. Grant is used as synonymous with gift, and also with transfer, and sale (3). Littleton (4) speaks of granting [ * 492 ] by deed and without deed; * and he says (5) the opera tive words in a deed of alienation, or as is commonl} said, conveyance, are dedi, concessi, conftrmavi. But the word convexi was never used, and indeed would be absurd.</p> <p>Lord Coke having first used it in English to signify the alienation of estate, the sense in which he used it is to be attended to. In pages 9 and 10 of his commentary, he uses it as synonymous with feoffment, grant and alienation, so also 247, b. 336, a.; but he does not appear to consider it as technical, which may be further argued from his giving no etymology of it, which he seldom fails to do, vhen he first uses a word as technical. A man, says he (page 10), may purchase lands by ten manner of conveyances, among which he specifies feoffment, fine, common recovery, exchange and devise, all of which may be without deed. Surrender is called a conveyance ; yet copyhold estates did not pass by deed, but by surrender (6).</p> <p>Lord Chancellor Bacon, in his reading upon the statute of uses, speaks of conveyances by deed, by livery, and by word.</p> <p>Comyns (Bankrupt, C. 8), in construing the stat. 1 Jac. c. 15, says, “and, therefore, if he makes a grant, or conveyance fraudulent within the stat. 13 El. or 27 El., it makes him a bankrupt; and as to what conveyances are fraudulent, refers to Covin, B. 2, &c., where are mentioned a great variety of conveyances which were not by deed. And from any thing to be found in Comyns, no idea can be entertained that he conceived a fraudulent grant or conveyance, to constitute an act of bankruptcy, must necessarily be a deed, or instrument under seal.</p> <p>Bacon (Abr. title Fraud, B.), speaking of fraudulent conveyances, mentions a sale in market overt, which certainly is not to be supposed by deed.</p> <p>Dalrymple, in his essay on feudal property (page 238), speaks of parole conveyances of lands, which remained until abolished b) • stat. 29 Car. 2, c. 3.—Saunders (7), speaking of conveyances by feoffment, says the charter of feoffment was by no means a necessary part of the conveyance. Finer (8) says, “ By sale a [ * 493 ] .non may convey his goods to * another,” and “ all chattels may be granted or given without deed, except in special cases.”</p> <p>Sir William Blackstone treats the subject of passing estates from one to another under the head of alienation, and it is certain he considers the word conveyance to have no other import than transfer. He enumerates and describes several species of conveyances, which cannot be by deed. In discussing the subject of title to things personal by gift, grant and contract, he says such gift, &c., may be done by writing, or by word of mouth, attested by sufficient evidence. And he immediately adds, “ but this conveyance, when merely voluntary, is somewhat suspicious,” &c.</p> <p>As far then as common sense, and the authority of the most eminent lawyers from the time of Edward the 4th, to the time of Justice Blackstone, can be a rule, nothing more is meant by a fraudulent grant or conveyance, than a fraudulent alienation or transfer; and this according to the subject matter.</p> <p>An examination of the statutes bearing on this point will lead to the same conclusion. To this effect, the statute of uses, 27 H. 8. c. 10 ; the statute against fraudulent deeds and alienations, &c.. 13 Eliz. c. 5. § 2, 3, 6 ; the statute of bankrupts, 1 Jac. 1. c. 15. <§> 2, 5, may be referred to.</p> <p>When the last-cited statute was enacted, all estates real and personal, except such as lie in grant, might be alienated or conveyed without deed. Now the 5th section of that statute gives power to the commissioners to sell and dispose of any manors, &c., goods or chattels conveyed by the bankrupt to his children or other persons, not bona fid.e purchased, conveyed or transferred. There is a similar provision in the 17th section of the act of the United States. If the construction now contended for is not the true one, it must follow, that in England, at the time of passing the statute of James 1; a man might wholly evade this provision by taking care not to make the transfer by deed; and in this country might have done the same as to personal chattels. In this place it may be pertinent to notice that by the additional statute of 21 Jac. 1, it is provided that all the statutes of * bankruptcy shall be [ * 494 J largely and beneficially construed and expounded for the aid, help and relief of the creditors, &c. To give the statutes a construction, which would enable the bankrupt to make away with hi property, can hardly be said to comport with the intention of th legislature.</p> <p>The 7th section of this last statute inflicts a punishment upon bankrupt, who shall be found to have fraudulently conveyed away his goods, chattels, land or tenements to the value of twenty pounds, it would have been a singular circumstance, that a person indicted upon this section, and on trial before Lord Mansfield, should avail himself of his lordship’s doctrine, and say he had made no con veyance, because it was not done by deed, or writing under seal, but merely by a bill of parcels. And the bankrupt laws, being penal, must be construed strictly, for which also he would have his lordship’s authority.</p> <p>As it will doubtless be contended that the statute of James has had a different construction from that which the plaintiff in the case at bai insists on, it will be allowed to trace the opinion to its origin, beginning with the last case that bears upon the question, and thence proceeding upwards.</p> <p>Manton & Al. vs. Moore (9) was a case of a bill of sale under seal, for it is called a deed; consequently this point could not have been decided, and nothing was said on the subject, except by Lord Kenyon, who observed “ that a conveyance of goods without deed is fraudulent, unless possession of the goods be given; if it be by deed, it is fraudulent and an act of bankruptcy. Here at least we have his lordship’s opinion that there may be a fraudulent conveyance of goods without deed; and the statute says that a fraudulent conveyance of goods shall0be an act of bankruptcy.</p> <p>In Whitwell & Al. vs. Thompson (10), the act of bankruptcy proved, and so decided to be by Lord Kenyon, was a deed executed May 30th, 1789. But a certain agreement, in its nature fraudulent against creditors, dated May 24th, was admitted by counsel not to be an act of bankruptcy; and the obvious reason of the admission was, that the deed of May 30th answered all their pur- [ * 495 ] pose. The question on * the first paper never came before the Court; and if it had, the admission of counsel at a trial does not prove the law.</p> <p>The question in the case Ex parte Cockshott (11) was whether an act of bankruptcy had been committed by the fraudulent surrender of a copyhold estate. It was contended by Cook, as counsel, that this could not be an act of bankruptcy, because not by deed ; and he cited the case of Martin 8f Al. vs. Pewtress Al. to show that Lord Mansfield had so determined. But the lord chancellor decided upon a very different point, without noticing the argument of Mr. Cook, viz. that- a copyhold estate was not liable to an elegit or fieri facias; consequently such surrender could not delay creditors, and therefore was no act of bankruptcy.</p> <p>In Hassells & Al. vs. Simpson (12), the assignment was by deed; there was therefore no occasion for the observation of Lord Mansfield, that “ a fraudulent disposition of a trader’s property is void against creditors; and if it is done by deed, it is, by force of the statute of James, an act of bankruptcy.” There could be no decision upon this point, and no other person made any observation upon the subject.</p> <p>The question in Rust & Al vs. Cooper (13) was, whether a certain bill of parcels made by the bankrupts to the defendant was fraudulent. Whether it constituted an act of bankruptcy or not, was wholly immaterial. If it was not fraudulent, it could not be an act of bankruptcy; if it was, the plaintiffs would recover, as there had been a clear act of bankruptcy independent of this transaction. It was determined to be fraudulent, and the plaintiff recovered. Lord Mansfield, in the course of a long argument, said, “ But I am of opinion, that no fraudulent transaction, which is not a deed, is in itself an act of bankruptcy.”</p> <p>Clavey & Al. vs. Haley Al. (14). The case was the fraudulent admission of a debt, and suffering judgment and execution to issue, whereby the bankrupt’s goods were taken.</p> <p>The counsel stated the questions to be, 1. Whether the execution was a fraudulent attachment, &c. 2. Whether it was * a fraudulent conveyance. Lord Mansfield interrupted [ * 496 ] the counsel, and said, “A fraudulent conveyance,to constitute an act of bankruptcy, must be by deed.” Mr. Cowper then confined himself to the first question. The second point was not argued, nor did the Court give any opinion upon it.</p> <p>The case of Harman & Al. vs. Fisher (15) was trover for two promissory notes. The question arose upon the time when the notes were delivered to the defendant, and this was necessarily the only matter under consideration; yet Lord Mansfield says, “If it had been oy deed, it would itself have been an act of bankruptcy.” The case of Linton vs. Bartlet, cited by Lord Mansfield,, was of a transaction by deed, which was decided to be an act of bankruptcy; but the question whether, if the same transaction had been by writing without seal, it would have been an act of bankruptcy, was not and could not be agitated or determined.</p> <p>Martin &/• AL vs. Pewtress &/■ AL, before referred to, is the first case, in which the distinction was attempted to be made, and that solely by Lord Mansfield. The case was decided in favor of the plaintiffs, upon the ground of fraud in the transaction, which rendered the sale of the goods a nullity; and there having been a clear act of bankruptcy proved, it was quite unnecessary that this transaction should be considered an act of bankruptcy in itself. It was argued for the plaintiffs by three very eminent lawyers, who contended that it was a fraud, and a conveyance of the goods (here was no deed) without i valuable consideration, and amounted to an act of bankruptcy. The defendant’s counsel say not a word whether it was a conveyance or not,, but confine themselves to two other points, which were the only points adjudged. Lord Mansfield seems the only person, who had formed an opinion that there was no conveyance, so as to constitute an act of bankruptcy. Yates, J., confines himself to the real points before the Court. Aston, J., adopts the opinion of Lord Mansfield implicitly. No authorities are cited, nor any reason given by Lord Mansfield for his opinion, except that, having dropped it at nisi prius, he is determined to adhere [ * 497 ] to it. He thinks deeds and conveyance merely * synonymous, against the whole current of legal, judicial and parliamentary authorities.</p> <p>Alderson & Al. vs. Temple (16). A note sent by post to the defendant on the eve of bankruptcy. The transaction was adjudged fraudulent. Yates, J., says, “I doubt whether this was not itself an act of bankruptcy.” Aston, J., says, he did not conceive the statute reached choses in action; in all the rest he concurred.</p> <p>From the strictest examination of the books it appears, then, that there never bad been a serious adjudication, upon argument, that a fraudulent conveyance of a bankrupt’s estate or goods must necessarily be by a deed or sealed instrument, in order to constitute il an act of bankruptcy.</p> <p>If, after this collection of cases, which seem conclusive, the Court should be of opinion against the plaintiff on the first point, it was still to be contended, secondly, that here was a concealing of the bankrupt’s goods, to prevent their being taken in execution. This can hardly be made more plain or apparent than the report of the judge has made it. The bankrupt’s father inquires of him if there were not certain pieces of his property exposed to be taken in execution, and proposes to him to make a bill of them to him, and he would take care of them. This was accordingly done, and the articles were immediately conveyed to the warehouse of the father, and there, it may be presumed, were mixed with others of the same description, in which the father was a large dealer.</p>

<p>An administrator, who has received letters of administration under the authority of another state, cannot prosecute or defend an action in the courts of this commonwealth, by virtue of such letters of administration.</p>

<p>Covenant broken upon a deed of the defendant and one Henry Brazier, deceased, dated December 28, 1801, conveying to the plaintiff in fee simple a certain messuage and land in Boston, in which were contained the usual covenants, viz., that the grantors were lawfully seised in fee of the premises, that they were free of all encumbrances, that the grantors had good right to sell and convey, and would warrant and defend the same to the plaintiff against the lawful claims and demands of all persons.</p> <p>The declaration contained two counts; the first count alleged generally a breach of all the covenants; the second count sets forth specially a breach of the covenants that the premises were free of all encumbrances, and that the grantors would warrant and defend the same to the plaintiff.</p> <p>[ * 524 ] #In a case stated for the opinion of the Court, the making the deed as set forth in the declaration was agreed. It was also agreed that the estate in question formerly belonged to Moses Gill, Esq., deceased, who by his last will devised the same to Moses Gill, his nephew, whom he also made executor of his will and residuary legatee, and who, upon proving the said will after the death of the said testator, upon probate of the will, gave bond to the judge of probate with sureties, conditioned to pay the debts and legacies of the testator. The said testator died seised; and after his death, the said Moses, the nephew, by his deed dated July 19th, 1800, sold and conveyed the same messuage, &c., to the said Samuel and Henry in fee simple, who afterwards conveyed the same to the plaintiff as above stated. At the Supreme Judicial Court, holden at Boston, in August, 1804, Ward Nicholas Boylston, administrator with the will annexed of the estate of Thomas Boylston, in an action against the said executor, recovered judgment against the estate of the said Moses Gill, deceased, for the sum of 106,176 dollars, 66 cents damage and costs of suit, and on the 11th of September following, sued out execution upon the said judgment in due form of law, against the estate of the said Moses, deceased, and not finding sufficient personal or real estate undevised, wherewith to satisfy said execution, caused the same to be levied on the said messuage, &c., and accordingly on the 19th day of said September, the same having been previously duly appraised, seisin and possession thereof were delivered to the said W. N. Boylston by one O. H., then a deputy sheriff of the county of Suffolk. The plaintiff, knowing that the said messuage, &c., was part of the estate of the said Moses Gill, deceased, and believing that it was liable for the payment of his debts, did not resist the service of the said execution, under which the said W. N. Boylston has ever since held possession of the said messuage, &c.</p> <p>If, upon these facts, the Court should be of opinion that the plaintiff could recover in this action, it was agreed that the damages should be ascertained by assessors thereafter to be appointed, and judgment be rendered accordingly. If, in the opinion of the Court, the plaintiff could not recover, he was to become nonsuit and the defendant to recover costs.</p>

<p>In an action for slander, the plaintiff may give in evidence his own rank and condition of life, to aggravate the damages ; and the defendant may avail himself of such evidence when it will have a legal tendency to mitigate the damages.</p> <p>The defendant in such action may give in evidence, under the general issue, facts tending to mitigate the damages, which he will not be permitted to do, when he has pleaded the truth of the words in justification.</p> <p>If, through the fault of the plaintiff in such action, the defendant, at the time of speaking the words and when he pleaded the justification, had good cause to believe they were true, he may show this in mitigation of damages.</p>

This action was broúght on a promissory note, made by Wilson to Sewell, dated June 1st, 1796, for 1973 dollars, 89 cents, payable to him or order in sixty days. Sewell endorsed it to Pomeroy, and he endorsed it in blank, delivered it over to Rogers for a valuable consideration, who lodged it in the United States’ Bank for collection.

<p>If a bill of exchange is protested for non-acceptance, an action presently lies for the holder against the- drawer and endorsers, although the time of payment is not come.</p>

William C. Martin, being indebted to James Scott in the sum of 5000 dollars, and having shipped a parcel of goods on board the ship-, upon which he had effected a policy of insur- [ * 559 ] anee, in order to secure Scott, assigned *the bills of lading and the policy to him by a blank endorsement. A total loss happened. The plaintiff, a creditor of Martin, sum maned Welles, one of the underwriters, as trustee of Martin ; Welles having no knowledge of the assignment to Scott.

This was an action of ejectment for a house in Boston. The facts were as follows: E. Welsh, being indebted to sundry persons, and wishing to secure his estate from attachment, conveyed the house in dispute to Waldron, without a valuable * consideration. Waldron, afterwards meeting with mis- [ * 560 ] fortunes, conveyed the house to Tyler, in trust for Welsh.

<p>This was an action against the sheriff for a false return. The facts were as follows:—N. B. was the owner of a share in the Hay-market theatre, and was indebted to S. Smith in a considerable sum of money. Smith purchased a writ, which was put into the hands of a deputy sheriff, who arrested N. B., and took bail.</p>

<p>This was an action of debt on a bond, dated November 3, 1785, conditioned to pay the sum £277 Is. lid., lawful money, in six months with interest.</p>

<p>The plaintiffs in this case declared that the defendant, at their request, and for a certain premium paid him by them, underwrote one thousand dollars on a policy of insurance, dated September 7th, 1798, upon their ship Commerce and her appurtenances, upon a voyage from St. Ubes to her port of discharge in the United States, and that the said ship was totally lost by storm and the dangers of the seas on the voyage aforesaid. There was also a count for 700 dollars, money had and received.</p>

This was a scire facias against Weller as the trustee of Jason Willard, and the question was whether he should be holden as trustee upon the facts disclosed upon his examination.

This was an action of the case brought by the endorsee of a promissory note against the maker, who offered his endorser, the payee of the note, as a witness to prove that the note was made on a usurious contract. The Court, on a full consideration of the cases of Walton vs. Shelly, 1 Term R. 296, and of Buckland vs. Tankard, 5 Term R. 578, ruled that the endorser could not be admitted as a witness to prove the note usurious, it being to destroy his own contract.