Volume 30 — Massachusetts Reports

<p>If an infant of the age of fourteen years enters into an agreement to labor until he shall come of age, in consideration of being furnished with his board, clothing and education, and he is not overreached, and the agreement is not so unreasonable ai to raise any suspicion of fraud, and it is sanctioned by his guardian, and is fully performed on both sides, he cannot maintain a quantum meruit for his services, merely by showing, that in the event which lias happened, his services were worth more than the stipulated compensation.</p> <p>The statute of frauds has no application to a contract which has been fully performed on both sides.</p> <p>An infant may bind himself by an express contract for necessaries, if the form of the contract is such that the consideration may be inquired into.</p>

<p>In order to sustain a bill in equity for discovery and relief, where the loss of a deed is relied on as the sole ground of chancery jurisdiction, the plaintiff, according to the English chancery practice, must file an affidavit of the loss ) but this rule cannot extend to a ease where a fraud, trust or other known ground of chancery jurisdiction, is relied on, and a deed is sought to be disclosed, as any other material fact is sought to be disclosed, by the answer of the defendant) and as this Court is not vested with equity jurisdiction in cases of lost deeds, independently of some other ground of equity jurisdiction, the rule requiring an affidavit is not applicable here.</p> <p>This Court has not equity jurisdiction to compel the performance of a trust arising under a will proved in another State, but of which there has not been a probate in this Slate nor a copy filed and recorded pursuant to St. 1785, c. 12) nor can the executor appointed in such other State be recognised here as the rightful executor, before he takes out letters of administration Itere pursuant to that statute.</p> <p>The St. 1817, c. 87, giving this Court equity jurisdiction u in cases of trust arising in the settlement of estates,” does not apply to the settlement of estates by executors de son tort.</p> <p>Property was conveyed by deed in trust, to a person domiciled in another Slate where he died. His will was there proved, and an executor appointed, who lived in this State, and who, having received the testator's effects, including the trust property, brought the same into this Slate. The -will was not proved here, nor a copy of it filed and recorded pursuant to St. 1785, e. 12. it was held, that this Court had not equity jurisdiction to compel the executor to perform the trust relating to such trust property.</p> <p>If the executor had here filed a copy of the will and taken out letters of adminis tration, pursuant to St. 1785, c. 12, and if be had not accounted in the Sts le where the principal administration was granted, for all the assets there reeeiv d by him, the probate proceedings there could not be revised and corrected in V. is State.</p> <p>A will was proved in another State, where the testator had his domicile, and legacies were paid, and no decree was there passed ordering the legatees to refund any portion of their legacies. The will was never proved here, nor a copy of it filed pursuant to St. 1785, c. 12. It was held, that legatees living in this Slate could not be compelled by this Court, upon a bill in equity, to refund) for it could not be shown that they were liable to contribution, without producing the will and malting a final settlement of the estate) which, upon the facts appearing, it is not competent to this Court to make.</p>

<p>This was a writ of entry brought by the demandant, as executor of Bohan King, to recover possession of two lots of land in the town of Westfield, upon a mortgage made by Pliny Parks to the testator.</p> <p>At a trial upon the general issue, before Morton J., the demandant gave in evidence a deed of mortgage from Parks to Bohan King, bearing date May 8, 1820, and including Doth lots, No. 9 and No. 10. A'so a deed of release and quitclaim of lot No. 9, from Benjamin Barns and wife to Parks, dated April 29, 1820, and a similar deed of lot No. 10, from Moses Allen to Parks, dated April 27, 1820. Here the demandant rested his case.</p> <p>The tenant then gave in evidence the original laying out of these lots in 1734, by which it appeared that lot No. 9 was laid out to Benoni Sacket, and No. 10, to Thomas Ponder. Also a deed from Sacket to David King, dated in 1741, conveying No. 9. Also a deed from Ponder to Daniel Hubbard, dated July 9, 1736, in which the grantor says, “ in consideration of the love, respect and good will I bear to Daniel Hubbard, I give and grant unto him, his heirs and assigns for ever,” the one half of all my lands lying within the township of Westfield, and one half of all my personal estate, habendum to Hubbard, his heirs and assigns' forever, and “ after my decease and after my wife’s decease, then the said Hubbard, for the consideration above mentioned, shall have the other half of all my estate, both real and personal, free and clear, freely and clearly from all other gifts ” &c., (with covenants of right to convey and for quiet enjoyment,) “ and the said Hubbard is to maintain the said Thomas Ponder and his wife all their days.”</p> <p>Much evidence was introduced tending to show that the town of Westfield, and those holding and claiming under them, had had exclusive and uninterrupted possession of the demanded premises for more than thirty years before the commencement of this action; and the tenant contended that neither the mortgager, nor either of his grantors, was seised at the time of their respective deeds, and that neither of them, nor any person under whom they claimed, had been seised of the demanded premises or any part of them, at any time within thirty years before the commencement of this action.</p> <p>It appeared in evidence, that the wife of Benjamin Barns was one of the heirs of Sacket, and that Moses Allen was one of the heirs, if not thé only heir, of Ponder.</p> <p>The demanded premises contained about forty acres, oí which the greater part had been cleared and tilled for more than thirty years ; but a small porti n had never been cleared and now is unimproved land. The demandant contended, that as the unimproved land had not been inclosed, nor in the exclusive possession of any one, the seisin of it passed with the title. To rebut this presumption of seisin in the heirs of Sacket and Ponder, the two deeds above mentioned, from them to King and Hubbard, were admitted, although the demandant objected to their admission.</p> <p>The demandant contended, that the deed from Ponder to Hubbard could have no effect upon more than one half of the lot No. 10, and so the heirs of Ponder continued to be seised of the undivided moiety of the unimproved part of this lot. But the jury were instructed, that as this was a very ancient transaction and it was manifestly the intent of Ponder to grant the whole of his estate after his decease, it was competent evidence tending to show the disseisin of the heirs of Ponder, and in the decision of this question was proper for their consideration, with the other evidence bearing upon it.</p> <p>And upon the whole evidence the jury were instructed, that unless the demandant showed a seisin in some one under whom he claimed, within thirty years before the commencement of the action, he could not recover ; that if he showed a seisin either in Barns and wife or in Allen, at the time of the conveyance to Parks, or in Parks at the time of his conveyance to the testator, then he would be entitled to recover so much as they, or either of them, were seised of at the times of their conveyances,'but if neither of them had a seisin of any part of the demanded premises, then nothing passed by either of the deeds, and the verdict must be for the tenant.</p> <p>The jury returned a verdict for the tenant; but if any one of the directions of the judge was wrong, a new trial was to be granted.</p>

Bill in equity. The bill sets forth, that the plaintiff, on June 18, 1819, mortgaged his real estate, and on April 11, 1323, assigned his goods and choses in action, to the defendant, to secure certain notes due to the defendant and to enable the defendant to raise money to pay other notes of the plaintiff, on which the defendant was liable as surety or indorser, and the expenses of the assignment, the residue, if any, of the proceeds to be paid to the plaintiff or his order…

<p>Pile right of a widow to have dower assigned to her, is not such an estate as can be the subject of a lease; and consequently, a covenant in an instrument purporting to be a lease, to pay her a sum of money annually by way of rent, in consideration of her forbearing to exercise her right, is a personal covenant, and cannot run with the land, so as to bind the assignee of the (so called) lessee. Such a contract for forbearance for a term of years, cannot be construed to be a release5 since a release operates presently and absolutely.</p> <p>[l appearing on the face of such instrument called a lease, that the subject of it was only a right to have dower assigned, the rule, that a lessee or his assignee is estopped to deny the title of his lessor, is not applicable.</p> <p>Nor is such assignee estopped by his payment of rent, to deny that he paid it as assignee of the covenant 5 since by St. 1816, c. 84, a widow is entitled to one third part of the rents- and profits of the land whereof she is dowable, until the heir shall set out to her her dower.</p>

<p>Trespass for breaking and entering the plaintiff’s dwellinghouse, and for an assault and battery upon his person. Plea, the general issue.</p> <p>At the trial, before Wilde J., the plaintiff proved that on April 8, 1829, the defendant, with several other persons, forced open die door of die plaintiff’s dwellinghouse, and with a club severely beat and wounded him.</p> <p>It was also proved, that the defendant was the owner of the house; that the plaintiff occupied it as his tenant, under a lease by indenture for one year from the 1st day of April, 1828 ; that at the time of the execution of the lease the plaintiff gave his promissory note to the defendant for the rent, dated April 1, 1828, and payable in one year from the date; and that on April 2, 1829, the defendant sued out a writ of attachment on the note, and delivered it to Ziba Cook, a constable, for service.</p> <p>Cook testified, that he met the defendant, by appointment, at the plaintiff’s house, on April 3, 182S. The house was closed and the doors fastened. The defendant requested Cook to enter the house, and make an attachment on the plaintiff’s property there being. Cook declined at first to enter forcibly. The defendant requested him to make am attachment by putting his arm through a broken pane of glass, and lie accordingly did, laying his hand on a wheel standing witiain reach : and the defendant told him that this would give him a right to enter.</p> <p>It was proved that the defendant told the plaintiff that the lease was out, and that he, the defendant, had a right to enter, the bouse being his ; and tliat the plaintiff replied that the lease was not out, and besides, that his wife was then m travail (which was the feet) and that for that reason the defendant should not enter.</p> <p>It did not appear that the defendant requested the plaintiff to remove from the house, but all the evidence tended to show that the defendant’s sole object, in entering the house, was to make an attachment.</p> <p>Upon this evidence the defendant contended, that as the action was quare clausum^ he had a right to enter forcibly, and that the plaintiff could not maintain this action. But this objection was overruled; and the jury were instructed, that the defendant had no right to break open the dwelling-house with a strong hand, for the purpose of making a$t attachment; and that notwithstanding the lease was expired and the house was the property of the defendant, he had no right to enter forcibly for that purpose, unless he first requested the plaintiff to remove and give him possession, and that the plaintiff ought to have been allowed time sufficient to remove; but if such request had been made and the plaintiff had refused to quit, then the defendant might have lawfully entered by force immediately, provided no more force was exerted than was necessary for that purpose.</p> <p>The jury returned a verdict for the plaintiff; but if the above instructions and decisions were incorrect, a new trial was to be granted; otherwise judgment was to be rendered according to the verdict.</p>

<p>Devise ; “ I give to mj' two daughters, and the survivor of them, the use of the north half of my dwellinghouse &c., so long as they, or either of them, remain single and unmarried. I also give them all my household furniture &c., to be equally divided between them. Also, the privilege of cutting all firewood that may be necessary for them from either of my wood lots. I give to my son my dwellinghouse, home estate and alt my wood-lands, under the incumbrances mentioned herein.” It was held, that each daughter took a several right for her life, to cut as much wood as should be necessary for her, and that this right did not depend upon her continuing to live in the dwellinghouse nor upon her remaining unmarried.</p> <p>U was also held, that a release by one of the daughters to the son, of 11 all her interest in the dweVinghouse and home estate, which interest is particularly described in the will,” did not convey her right to cut firewood as above mentioned.</p>

<p>A testator owning stock in a bank, which by its charter was to expire within a few years, bequeaths the stock to his two daughters, one of whom was a widow, the other a feme covert, but directs that it shall stand in the name of his executor until the expiration of the charter, the executor paying to the daughters the dividends on the stock. The charier was renewed. It was held, that when the time arrived which had been fixéd for the expiration of the original charter, the daughters were entitled to have the stock transferred to them.</p> <p>Parol declarations of the testator, showing that he expected that the charter would be renewed, were held to be inadmissible in evidence to affect the construction of the will.</p>

Assumpsit. The case came before the Court upon a report of auditors ; which, it was agreed, should be considered as an award of arbitrators. The auditors report, that they have viewed the action in two lights; 1. as founded upon the contract set forth in the declaration ; and 2. as a claim for a quantum meruit for services performed. The contract was as follows : — “Westfield, Nov. 25,1826.

<p>Debt on judgment.</p> <p>The first count sets out, in common form, a judgment recovered before the Court of Pleas and Quarter Sessions for the county of Guilford, in North Carolina, in February 1827, upon a scire facias against the defendant as bail ol one Field.</p> <p>The second count sets out at length, that a suit was commenced by the plaintiff before the same court against Field ; that Field was arrested by the sheriff; that the defendant became his bail, (setting forth the bail' bond and the condition); that by the laws of North Carolina the bail bond was assignable, and that it was assigned to the plaintiff; that the action was entered and Field appeared ; that a judgment was recovered against Field, in May 1826 ; that he did not abide the judgment but avoided, and thereby the condition of the bail bond was broken; that an execution against Field was returned non est inventus; that two writs of scire facias were issued against the defendant as bail, and were returned nihil, .and upon the second scire facias a judgment was rendered against the defendant, as set forth in the first count.</p> <p>The defendant pleaded four pleas:—1. Nul tiel record. 2. Nil debet. 3. As to the second count, that the defend ant never had notice of the judgment against the principal in North Carolina, nor of the subsequent proceedings against himself as bail. 4. That the scire facias mentioned in the first and second counts, never was made known to the defendant, nor had he notice that any process was instituted against him as bail.</p> <p>The first plea terminated in an issue to the court.</p> <p>To support this issue on his part, the plaintiff introduced a copy of the record of the Court of Pleas and Quarter Sessions, in Guilford county, in North Carolina. The defendant objected to the sufficiency of it to support the issue on the part of the plaintiff, but Morton J., before whom the cause was tried, held it to be sufficient.</p> <p>To the third and fourth pleas the plaintiff replies, that the defendant voluntarily became a party to the suit against the principal, by becoming his bail, and by the laws of North Carolina was bound to take notice of the judgment against the principal; that the proceedings against the bail were but a continuance of the original suit, and so the defendant, by the laws of North Carolina, was bound to take notice of the proceedings against himself as bail; and the plaintiff traverses the allegation, that the defendant had not notice of the original judgment against the principal, and of the subsequent proceedings against the bail. Upon these traverses issues were joined.</p> <p>To prove the laws of North Carolina, and to show that by them the defendant was bound to take notice of the original judgment against the principal, and of the subsequent proceedings against the bail, the plaintiff introduced the depositions of John M. Dick and Ralph Gorrell, both of whom were in the practice of the law in that State. The defendant objected to the competency and sufficiency of this evidence ; but the judge ruled that it was competent, and, if believed by the jury, sufficient to maintain the third and fourth issues, on the part of the plaintiff.</p> <p>The jury returned a verdict for the plaintiff on those two issues.</p> <p>To the above decisions the defendant excepted.</p> <p>Upon the plea of nil debet, issue was joined.</p> <p>Under this issue the defendant offered evidence to show that J. M. Dick, the plaintiff’s attorney in the action against Field, gave to an officer two subsequent writs for the same cause of action, directing him to arrest Field upon them and to take new bail, and that at the same time the attorney told the officer that the former suit had been discontinued.</p> <p>The plaintiff objected to the evidence of Dick’s declarations, but the objection was overruled.</p> <p>It was agreed that the defendant, who had been a citizen of North Carolina, left that State in March 1826, and had not been within it since.</p> <p>The jury returned a verdict for the defendant on this issue.</p> <p>Judgment was to be rendered for the plaintiff or for the defendant, or a new trial was to be granted, as in the opinion of the whole Court justice might require.</p>

<p>An act of the legislature providing that the expense of building a particular bridge shall be borne in part by the county within which it is situated, when by the operation of the general laws of the commonwealth the expense wottfc Le oerne wholly by the town within which it is situated, is not unconstitutional.</p>

<p>A feme sole, having contracted a debt in Rhode Island, took the benefit of an insolvent act of that State passed after the debt was contracted, wher«ry tiei person was discharged from arrest, and then married in the same State, Laving no property. The creditor and the wife were inhabitants and citizens of Rhode Island at the time when the debt was contracted, when the insolvent act was passed, when the proceedings under it were had, and when the marriage took place. The husband was a citizen of Massachusetts, and after the marriage the wife came here and resided with him. The act provides, that no man who shall intermarry with any woman who shall have had the benefit of the act, shall be liable for any debt incurred by her before the benefit of the act was extended to her., for any greater amount than the value of the property which he acquired by the marriage. An action for the debt having been brought here against the hus band and wife, it was held, that the husband was not liable, and that the action could not be sustained.</p>

Bill in equity to redeem. The bill alleges that Nathan Powers, on September 3, 1822, was seised of certain land situate partly in Greenwich, in the county of Hampshire, and partly in Hardwicke, in the county of Worcester, and that cn that day he conveyed the same in mortgage to the defendant; that afterwards, on the same day, the mortgager made a second mortgage of the same land to the plaintiff, upon condition that the mortgager should pay a note given on the same day for…

<p>An agreement by an attorney at law with the agent of a third person, that if the agent will employ the attorney to collect demands due to the agent's principal, the attorney will pay to the agent a portion of the fees of collection, is prohibited by St. 1811, c. 62, and will not sustain an action.</p> <p>In an action by the attorney against the agent, for professional services in the collection of such demands, parol evidence is admissible to prove such agreement, notwithstanding the defendant may have signed a written contract, not illegal in its terms, to pay for the attorney's services.</p> <p>Where goods attached are returned to the defendant, upon a receipt given by a third person stating the value of the goods and promising to re-deliver them to the officer in case the plaintiff should recover, the competency of the receipter to testify in the suit may be restored by placing in his hands a sum of money equal to the whole amount for which he can by possibility be liable on his receipt</p>

Scire facias, in which the commonwealth claim judgment for the sum of 200 dollars on the defendant’s recognisance, taken before a justice of the peace, and in which it is alleged, that the defendant became bail for James Esty, and forfeited his recognisance by the avoidance of the principal. The defendant pleaded a special plea in bar, to which the commonwealth demurred generally.

<p>If a writ of attachment is made returnable to the Court of Common Pleas on a day subsequent to the one fixed by law for the sitting of the ccnrt, and the action is entered but the defendant does not appear, the court cannot render a judgment against him upon the writ as it originally stood, nor can the writ be amended by inserting the proper return day.</p>

This was an action on the case, upon St. 1786, c. 81, to recover double damages for an injury to the plaintiff, caused by a defect in a highway in the town of Northfield. The defect complained of was a hole in the road, by the side of a small bridge. The plaintiff alleged that the horse on which he was riding, stepped into the hole, and fell, and threw the plaintiff over his head.

<p>Upon a petition to the commissioners of highways representing that the limits of a highway between certain termini were undefined, that no perfect record of the same could be found, and that useful alterations might be made in the road, and praying the commissioners of highways to view the same and make such permanent boundaries and alterations as they might deem expedient, the commissioners laid out the road by metes and bounds, declared it to be of common convenience and necessity, and established it as a common highway. It being objected that the commissioners exceeded their jurisdiction, in laying out a new road, it was held, that if the word alterations was used technically in the petition, as the substitution of one road for another, the act of the commissioners was by legal implication an alteration, the part of the old road which was superseded being, without express words, discontinued 5 and if alterations was not used technically, there was no color for the objection.</p> <p>The provision in St. 1825, c. 171, § 4, that it shall be the duty of commissioners of highways to cause aQ« roads located by them, to be constructed and finished to their acceptance, was not intended to vary the responsibility of towns under St. 1786, c. 81, § 7, for injuries occasioned by defects in highways, nor in any event to give the party injured an action against the county.</p> <p>The acceptance by the commissioners, contemplated by the statute of 1825, is not the acceptance of the highway, or the act which opens it as a highway for public use, but it is the acceptance of the construction of the road.</p> <p>The town becomes responsible for an injury occasioned by a defect in a highway, from the time when the way is opened for public travel.</p> <p>Evidence that a road has been paid for by order of the commissioners, and that it has been in fact travelled from the time when it was left by them as being finished, is admissible in favor of a stranger injured by reason of a defect in the road, against the town, to prove that the road had been opened for public use and had been accepted and adopted by the town as a highway. And in this view, the certificate of the commissioners of highways to the county commissioners, that a certain sura of money was due to a person named, for his services in making the road, was held to be competent evidence. n an action against a town to recover damages for an injury occasioned by a defect in a highway, it is no justification to the town, that such defect existed in the road ud it was left by the commissioners.</p>

<p>This case was argued in writing, by R. E. Newcomb and H. G. Newcomb for the plaintiff, and by Forbes for the defendant. The opinion of the Court was drawn up by</p>

<p>A covenant in a deed of land, that the grantor will warrant the land against all persons claiming under him, does not estop him from setting up a title subsequently acquired by him by purchase or otherwise.</p>

Writ of entry, wherein the demandant claimed one undivided moiety of a tract of land in Sturbridge.

<p>Assumpsit to recover the value of a quantity of cotton sheetings consigned by the plaintiffs, on November 13, 1829, to Dutch and Matchett, the defendants, to sell, they being • commission merchants and partners, doing business under the firm of Dutch & Matchett, at Boston.</p> <p>On the trial, before Putnam, J., it appeared that at the time of the consignment the plaintiffs drew two drafts on Dutch & Matchett, payable in four months, amounting together to 500 dollars, which they accepted. The defendants dissolved their copartnership on January 1, 1830, and published notice thereof in two Boston newspapers, one of which was usually received at the counting room of the plaintiffs, in Southbridge. The sign of Dutch & Matchett on their store, was taken down in January, and that of Alfred Dutch & Co. put up in its place. By the terms of the dissolution, as published in the newspapers, Dutch was to settle the concerns of the late firm of Dutch & Matchett. Dutch continued to do business at the store under the name of Alfred Dutch & Co., but on his own account; and the. goods on hand were left in the store precisely as they were before.</p> <p>On March 16, 1830, the drafts above mentioned became due and were paid by Dutch. On the 26th of March, M. Plympton, the agent of the plaintiffs, who drew the drafts, was at the store of Dutch several times, and two new drafts, amounting together to 500 dollars, payable in four months, were then drawn by him as agent, on Alfred Dutch & Co., which were then accepted by Dutch under that name. The goods at this time remained unsold, and were in the room in which these drafts were drawn, in plain sight, in the original bales. The value of the goods did not much exceed 500 dollars</p> <p>Hatchett having pleaded that he did not promise with Dutch, and Dutch having been defaulted, the plaintiffs offered Dutch as a witness, to prove that he was the person who negotiated the whole business ; that nothing was done between him and the plaintiffs with an intention that the credit should be changed or a new consignee created ; that the acceptances of March 26th were drawn on Alfred Dutch & Co. as a matter of convenience, in consequence of the dissolution ol the copartnership ; that Dutch, in accepting them, did not act for himself, but as the agent of Dutch & Hatchett; and that the sum of 500 dollars was advanced by the plaintiffs pursuant to an agreement at the time of the consignment, by which the plaintiffs were to replace the amounts of the acceptances made in November, in case the goods should not have been sold when they came to maturity. Dutch was willing to testify, but Hatchett objected to his competency, and the judge ruled that he was not a competent witness. To this decision the plaintiffs excepted.</p> <p>It was proved that none of the goods were sold before April 23, 1830, on account of the price at which they were limited by the plaintiffs; and that between that time and the 23d of July following, when Dutch failed in business, they were nearly all sold. The drafts , of March 26th were not paid by Dutch. •</p> <p>The jury were instructed, that the question before them was, whether the goods had been accounted for by Dutch & Matchett as they ought to have been, and that if they had been accounted for, the defendants could not be held to account for them anew ; that it was a question of intent, which was to be inferred from the acts of the parties, from which acts the jury were bound to draw natural inferences. They were directed to consider, whether the acceptances by Dutch as Alfred Dutch & Co., were meant to be an independent loan, or an advance on the goods. On the subject of the agency of Dutch it was stated to them, that it did not appear that he had any authority to charge Matchett by accepting drafts on account of the late firm, nor that it was in pursuance of any such supposed authority that these drafts were accepted, as no such agency appeared on the acceptances.</p> <p>The jury found that Matchett never promised ; and the plaintiffs moved for a new trial.</p>

<p>Before the repeal of the proviso in St. 1821, c. 85, § 1, it was necessary, in order to sustain a bill in equity to redeem, that the .plaintiff should aver and prove that he had made a payment or tender of the full amount due on the mortgage, (or had performed or tendered performance of such other condition &c.,) or that he had requested of the defendant an account of the amount due and the defendant had refused or neglected to state his account.</p> <p>Money paid into court by the plaintiff, on a bill in equity to redeem, cannot be taken out by die defendant, if he contests die right to redeem and prevails in his defence.</p>

<p>Assumpsit. Upon a case stated it appeared, that ob November 29, 1791, Michael Newhall executed a bond to Nathaniel Farnsworth, conditioned that Michael, his heirs, executors or administrators, should pay to Nathaniel and to Mary, his wife, the sum of six pounds annually, during their lives or the life of the survivor of them. On the same day Michael executed another bond to Nathaniel, conditioned that Michael, his heirs, executors or administrators should pay the sum of nine pounds annually to Nathaniel and Maty, or the survivor of them, during the life of Mary, the payment to commence after the happening of a certain event, which has long since occurred.</p> <p>On February Í9, 1812, Michael made his last will, wherein, after divers legacies and devises, he gives the residue of his estate, real and personal, to his son, Daniel Newhall, 11 upon condition that the said Daniel do pay all my just debts, Mineral charges, and also do pay out and distribute all such legacies as is hereinafter directed, meaning also that he should pay whatever may become due to Nathaniel Farnsworth and Mary his wife, from year to year, according to my contract with them.”</p> <p>On the 1st of November following Michael. died, leaving considerable real and personal estate, among which was a farm occupied by him. Daniel entered into possession of the farm, by virtue of the will, and on June 1, 1818, conveyed u in mortgage to secure the payment of a sum o* money to the defendant and to three others, who on November 9, 1819, assigned their interest in the estate to the defendant, whereby he became sole mortgagee of the same. The deed of mortgage, after describing the estate, contains the following exception, to wit, “ excepting same condition as set forth in my father’s will.” On November 9, 1819, Daniel Newhall made a second mortgage of the estate to the defendant, containing the like exception. The defendant entered into possession of the mortgaged premises, on March 9, 1825, and continued in possession until September 8, 1828, when he sold the same to one Gardner, having previously foreclosed the right of Daniel Newhall to redeem the same.</p> <p>Daniel Newhall gave bond in the prohate office as executor of the will of Michael, soon after Michael’s decease. The demands arising on the bonds from Michael to Farnsworth, were not filed in the probate office pursuant to St. 1788, c. 66, but the annual sums therein stipulated to be paid, were paid and indorsed on the bonds until 1824.</p> <p>Mary Felch, one of the plaintiffs, was at the time of the execution of the bonds, Mary Farnsworth, the wife of Nathaniel, who has since deceased. Nathaniel died previously to. the last payment made on the bond.</p> <p>If upon the foregoing facts this action could be sustained, judgment was to be rendered for the plaintiffs, for a sum to be agreed upon by the parties or assessed by the Court; otherwise the plaintiffs were to become nonsuit.</p>

<p>Trespass de bonis asportatis, brought by William Robinson junior and Sylvanns Robinson, sons of William Robinson senior, against Daniel Mansfield and William Lamed. The defendants pleaded the general issue ; also, that the goods were taken by Mansfield, a deputy sheriff, by virtue of a writ in favor of Larned against Robinson senior, and that Robinson senior was the proper owner of the goods.</p> <p>At the trial, before Wilde J., it appeared that a part of the goods, consisting of stock and farming tools, was previously to November 18, 1826, the property of Robinson senior, and was claimed by the plaintiffs by virtue of a bill of sale thereof from Robinson senior to his son William alone, dated the 20lh of November. The same had been attached on the 18th, by Samuel Smith, a deputy sheriff, as the property of Robinson senior, on a writ in favor of Morris Larned, and had been delivered by the officer, on the same day, to one Kimball, who gave him a receipt for it and a promise to re-deliver it on demand. Evidence was introduced by the plaintiffs, for the purpose of showing that the same property was sold by Robinson senior to his son William by_ consent of Kimball, by the bill of sale dated the 20th of November, and that the full value was agreed to be paid therefor, by William junior’s securing Kim-ball from loss by reason of his receipt. The only payment made by William junior at the time of the sale, was by the way of securing Kimball; and a bond was produced, dated the 20th of November, given by him to Kimball, reciting the sale, and conditioned that he should save Kimball harmless on account of the receipt. But evidence was introduced by the plaintiffs tending to show that the value of the property was paid to Kim-ball, in part by William junior, and in part by Sylvanus, and was applied to the payment of the execution of Morris Larned against Robinson senior. The plaintiffs proved that William junior paid the bond to Kimball, in May, 1828, by notes due to Sylvanus from the Goodale Manufacturing Company and from Slater and Howard. Evidence was introduced to show a delivery of the property in question, by Robinson senior to William junior. The defendants contended, and introduced evidence to show, that the possession of William junior was merely colorable, and fraudulent and void as against the creditors of Robinson senior.</p> <p>The defendants contended also, that so far as the stock and farming tools attached in the suit of Morris Earned were concerned, the action could not be maintained in the name of the present plaintiffs, but should have been brought in the name of Smith, the attaching officer in that suit. But the judge ruled that such attachment created a mere lien upon the property so attached, and that the action was well brought by the present plaintiffs.</p> <p>The defendants contended further, that there was no evidence of a copartnership between the plaintiffs, or of any joint ownership of the goods sued for in this action. But there was evidence that Sylvanus was a dormant partner of his brother William, and that an agreement subsisted between them to share in the profit and loss of each other’s business, and to own all their property in common. There was no evidence that Sylvanus ever had any other than a constructive possession of the property claimed by the plaintiffs. Whereupon it was contended by the defendants, that even if the jury should believe that Sylvanus was a dormant partner of his brother, they could not join in this action. But the judge ruled, that as the action was for a tort, they might well join.</p> <p>The defendants introduced evidence to show, that large quantities of wood, timber and produce were, after the attachment, taken from the farm of Robinson senior, and actually appropriated to the payment of Kimball. To rebut this evidence, Robinson senior swore to the exhibit of his accounts with his sons William and Sylvanus, by which it appeared that a small balance was due to them. The defendants then introduced evidence to show, that upon examining the items embraced in the exhibit a large balance would be found to be due to Robinson senior. Whereupon it was testified by Robinson senior, that he was otherwise indebted to the plaintiffs than as appeared by the exhibit. The defendants objected to his testimony, on the ground, that as the plaintiffs had undertaken to make an exhibit of their accounts with him, they should not be permitted to travel out of it to prove any other indebtment. But the judge allowed the evidence to go to the jury.</p> <p>At the time when Mansfield attached the goods mentioned ' in the plaintiffs’ declaration, a horse, wagon and harness therein mentioned were not removed by the officer, but were delivered to William junior, upon his written receipt and promise to redeliver them to the officer on demand. In the receipt they were described as “ taken on a writ in favor of William Lamed against William Robinson,” and they were valued in the receipt at $ 128. It was contended by the defendants, that as this property had always remained in the hands of one of the plaintiffs, if they were entitled to recover any thing therefor, they should recover only nominal damages. But as there was an outstanding contract for the redelivery of this property to the officer, the jury were instructed, that if they found for the plaintiffs in regard to it, they should find for its full value.</p> <p>The jury were also instructed, that if they found for the plaintiffs, they should find for the value of the property attached by Mansfield, and that they might add simple interest upon that value up to the time of returning the verdict.</p> <p>The jury returned a verdict for the plaintiffs, for the sum of $ 622-07.</p> <p>The defendants moved for a new trial on account of supposed misdirections, as above stated.</p> <p>The case was argued by Tufts and Barton for the defend ants, and by Newton and W. Lincoln for the plaintiffs.</p> <p>It was insisted on the part of the defendants, in regard to the goods attached by Smith and alleged to have been sold by Robinson senior to his son William, that the special property was in Smith, who had the possession by his servant Kimball; that the supposed sale was but a contract of sale, because the goods were incapable of delivery ; and that William junior, not being entitled to immediate possession, could not maintain an action of trespass. Luddon v. Leavitt, 9 Mass. R. 104 ; Perley v. Foster, ibid. 112 ; Warren v. Leland, ibid. 265 ; Bond v. Padelford, 13 Mass. R. 394 ; Brownell v. Manchester, 1 Pick. 232 ; 1 Chit. PI. (edit. 1809) 167, 168 ; Harrison v. M’Intosh, 1 Johns. R. 380 ; Bac. Abr. Trespass, C 2 ; Ward v. Macauley, 4 T. R. 489.</p> <p>But per Curiam. This objection is invalid, for the lien oí Smith had been discharged and the obligation of Kimball substituted for the goods. It has always been held, that where goods attached, are placed in the custody of a receipter in the nsual mode, and delivered to the debtor, they may be conveyed by the debtor or be attached again at the suit of another creditor. [See Denny v. Willard, 11 Pick. 519.]</p> <p>The defendants further insisted, that Sylvanus, being merely a dormant partner of the other plaintiff, could not join in the action. Lloyd v. Jlrchbowle, 2 Taunt. 324 ; Lord v. Baldwin, 6 Pick. 352. On this point the plaintiffs’ counsel cited Patten v. Gurney, 17 Mass. R. 182 ; Skinner v. Stocks, 4 Barn. & Aid. 437 ; Gow on Partn. 154. Per Curiam. This exception cannot be maintained. It was not necessary that the bill of sale should be made to both of the plaintiffs, in order to give them a joint property. If made to one who agreed to purchase for both, both would take. By bringing this action they show their intent to treat the goods as joint property, and there is evidence in the case sufficient to show that they took jointly.</p> <p>The counsel for the defendants further urged, that the account between the plaintiffs and their father, put into the case for the purpose of showing that their father was indebted to them, was like a bill of particulars, which is conclusive on the party filing it; and therefore that the testimony of the father, that he was indebted in other sums not mentioned in the account, was inadmissible. But per Curiam. The account was not a bill of particulars, and the rules of practice in relation to a bill of particulars are not applicable. It was merely an exhibit of transactions between the father and the sons, but it does not purport to contain all the accounts between them. It was for the court, in its discretion, to receive other evidence, and the testimony in question was properly admitted.</p> <p>It was further contended on the part of the defendants, that as the horse, wagon and harness were delivered to William junior himself, upon his receipt, and were not removed, there was no asportation, and a mere technical attachment would not support trespass de bonis asportatis ;.that if the action could be sustained for the taking, the damages must be nominal, as the property went instantly back into the hands of William junior, and he had ever since had the enjoyment of it; and that the contract for re-delivery to the officer made no difference, for it was void for want of a consideration, if the officer committed a trespass in attaching ; at least the Court would not allow the circuity of action by which the officer would recover of William junior and then William junior would recover back from the officer. Gibbs v. Chase, 10 Mass. R. 125; Knap v. Sprague 9 Mass. R. 258 ; Fuller v. Holden, 4 Mass. R. 498 ; Learned v. Bryant, 13 Mass. R. 225. To this it was answered, that the attachment was a constructive removal ; that William junior could make no defence to an action upon his receipt, and at least he might elect to perform his contract; and that the defendants could not suffer by a recovery in the present suit, for this property would be vested in them by the judgment. Campbell v. Phelps, 1 Pick. 62.</p>

<p>Petition for partition. The petitioner prays that his share of a tract of land in Lancaster, called the Poor lot, containing four acres, may be set off to him in severalty. He claims five undivided eighth parts of 96 rods, part of the tract, and one undivided eighth part of the residue.</p> <p>The respondent resists the partition as to 2 acres and 30 rods, which part includes the 96 rods.</p> <p>The tract, which once belonged to Edward Poor, was conveyed to Peter Thurston in 1788. Dorothy Thurston, the wife of Peter, owned a farm containing about 60 acres, adjoining the Poor lot. In 1791, Peter and Dorothy conveyed to their son Gates Thurston an undivided moiety of the farm and of the Poor lot. Peter died in 1812, intestate, owning at the time of his decease an undivided moiety of the Poor lot. He left four children, two of whom were Gates Thurston and Dolly Flagg, wife of Josiah Flagg. On November 15, 1813. Dorothy Thurston released and quitclaimed to Gates Thurston the remaining undivided moiety of the farm of 60 acres.</p> <p>Gates Thurston, by his deed of November 25, 1813, conveyed the farm in mortgage to the New-England bank, describ- ' ing it by metes and bounds. In the description are the following expressions;—“thence south 61east 7 rods and links to the factory road, thence on. said road 14 rods and 5 links to land of the heirs of Peter Thurston, thence north 76~° west to a stake and stones.” The point of intersection with “ the factory road,” was agreed on by the parties, and the distance from thence to the Poor lot, which was the land of the heirs of Peter Thurston, is 8 rods and 5 links. By going'6 rods further upon that lot, according to the length of line given in the deed to the New-England bank, the abovementioned 96 rods will be included in the conveyance to the bank. The bank assigned their mortgage to S. V. S Wilder, by deed dated December 26, 1816. Gates Thurston was in possession of both the tracts from and after the death of Peter Thurston until his own death in February 1816. The respondent was appointed administrator on the estate of Gates Thurston, and in that capacity he conveyed, by deed dated February 27, 1819, to one Gardner, the right in equity to redeem the land mortgaged to the bank. In this deed the line on the factory road is described as 8 rods and 5 links. Gardner conveyed the same right in equity to S. V. S. Wilder, describing that line in the same manner. Wilder quitclaimed all his right in the mortgaged premises, to the petitioner, by deed dated November 26, 1828. In this deed the same line is called 8 rods and 5 links. On the 15th of December following, Wilder made another quitclaim deed, purporting to be explanatory of tire former, in which the line is described as 14 rods and 5 ' links.</p> <p>Josiah Flagg and Dolly Flagg, his wife, executed and delivered to the petitioner a deed, dated July 4, 1829, of all their right and title in and to the Poor lot.</p> <p>In November 1819, commissioners were appointed by the judge of probate to assign dower to Betsey Thurston, the widow of Gates, and they proceeded so far in the execution of their duty as to set off her dower in several tracts of land, and among other parcels set off to her from and of the Poor lot, 2 acres and 30 rods, including the 96 rods above mentioned. The commissioners never made any return of their doings, but the lands set out to the widow as her dower were shown to her by the commissioners, and she afterwards accepted the same, and entered thereupon and continued to occupy the same until she made a conveyance of all her interest in the 2 acres and 30 rods, to the respondent, in March 1829.</p> <p>In February 1819, the respondent, as administrator of Gates Thurston, sold the right in reversion to the 2 acres and 30 rods, to E. Wilder ; and on the 2d of March following, Wilder conveyed the same right in reversion to the respondent. After the decease of Gates Thurston the respondent occupied the farm and the Poor lot, under his mother, Betsey Thurston, until the farm was conveyed by 8. V. 8. Wilder to the petitioner. The petitioner removed to the farm on March 31,1829, and has occupied it ever since.</p> <p>In April 1829, as soon as the frost was out of the ground, the respondent erected a fence on the line between the farm and the 2 acres and 30 rods of the Poor lot, both tracts of land having been cultivated in common and without any separation by a fence, while occupied as before mentioned by the respondent. Josiah Flagg was present at the time when this fence was erected, and was informed that the respondent claimed exclusive right and title to the 2 acres and 30 rods. None of the heirs of Peter Thurston had before that time set up any claim to this land.</p> <p>There was a ham standing on the 2 acres and 30 rods. After the petitioner removed to the farm he attempted to make use of this bam. The respondent caused -the doors to be nailed up two or three times, but they were as often broken open. Josiah Flagg, a witness called by the petitioner, testified that in the fall of 1828, the petitioner carried eight or ten loads of manure into the bam yard on the 96 rods, that he put into the barn shed a horse-wagon, winnowing mill and some other articles ; and that he leased a part of the barn to one Bowman, who put a quantity of hay therein and kept his horse and cow there some part of the winter.</p> <p>The fence erected by the respondent was partially broken dora by the petitioner, soon after its erection, but it was im mediately restored by the respondent. During the absence of the latter on a journey in June 1829, the petitioner entered upon the 2 acres and 30 rods, and cut and carried away the grass growing there. On the return of the respondent in the same month, he caused the fence, which had again been partially taken down when the grass was removed, to be rebuilt.</p> <p>The respondent contended, that the mortgage to the New England bank did not, by the true construction of the deed, include the 96 rods, because the land of the heirs of Peter Thurston, being a known and permanent monument, ought to govern and correct the length of line.</p> <p>The petitioner contended, that the monument next mentioned in the deed, viz. “ a stake and stones,” corresponded with the courses and distances there stated, and that this monument, together with those courses and distances, plainly manifested an intention on the part of the grantor to include in the mortgage a part of the Poor lot.</p> <p>To prove the existence of this monument the petitioner called Josiah Flagg ; who testified, that soon after the conveyance to the New-England bank, he was on the Poor lot, and there saw a stake set up, which appeared to be a surveyor’s stake, near to what is alleged to be the corner of the 96 rods, but that there were then no stones about the stake, and that he never saw it afterwards.</p> <p>The judge before whom the cause was tried- ruled that the mortgage did not include the 96 rods.</p> <p>The respondent contended, that the deed of Josiah Flagg find his wife was inoperative, by reason of the adverse possession of the respondent, both the grantors and grantee knowing of such adverse possession and that it was under a claim of exclusive right and title.</p> <p>Judgment was to be rendered by the whole Court, according to their determination of the law on the several questions made upon the foregoing facts.</p>

<p>Where the indorsement of a writ sued out in the name of the judge of probate, upon a probate bond, states that the action is brought for the benefit of an individual named, the judge of probate is not personally responsible for costs.</p>

■This was an appeal from a decree of the judge of pro bate, made on the final settlement of the accounts of Hutchins Hapgood, executor of the last will of Jonathan Grout, and ordering the distribution of $ 15,676-38, the balance of the estate of the deceased in the hands of the executor.

<p>Where land devised, which had vested in the devisee, was sold by the executor and bought by himself, and afterwards the heirs of the devisee affirmed the sale, it was held, that in the distribution of the testator’s estate, the administrator, and not the heirs of the devisee, was entitled to the proceeds of the sale.</p> <p>A testator devised to his son his homestead, which was under mortgage, and directed that the son should pay one half of the incumbrance and that the other half should be paid out of the testator’s estate; and he further directed, that after the payment of his debts and certain legacies to his daughters, the overplus should be “ divided among all his children, after first taking from such overplus enough to clear the homestead for his son, if not otherwise done.” The homestead was sold by the executor and bought in by him, and the sale was affirmed by the heirs of the son, who had died insolvent. It was heldf that the provision for applying the overplus to clear the homestead from the incumbrance had been defeated by the sale.</p>

<p>Assumpsit. Upon a case stated it appears, that about December 1, Í828, a bargain was made between the plaintiff and the defendant, for the purchase of a parcel of land, for which the defendant was to pay the plaintiff $178-78, in manner following, viz. one half in stock at the end of one year, if the plaintiff should choose then to take stock, otherwise the whole in cash at the end of two years. At the above-mentioned date, two notes, each for $89-39, were prepared by the plaintiff for the defendant to sign, which were made payable to Wheelock or order, on demand, with interest. The notes were both on one piece of paper, and the defendant objected to signing them, as not being made according to the agreement, and a memorandum was then added upon the bottom of the paper, which memorandum was substantially according to the terms of the agreement, and then the defendant signed the notes. A short time before the expiration of the first year, the defendant offered to pay in stock one half of the price of the land, and the plaintiff then refused to accept stock in payment. The defendant has paid a little more than the first year’s interest upon the notes. Before '.he expiration of the two years the plaintiff cut off the memorandum from the notes and commenced actions upon them, m which he afterwards became nonsuit. After the expiration of the lwro years he commenced the present action ; in which he declared upon the agreement above described, upon a sale of the land and a promise to pay the price in two years, and upon the two promissory notes. And if upon any of the counts, with the evidence as above stated upon one side and the other, the plaintiff was entitled to recover, the defendant was to be defaulted; otherwise the plaintiff was to be non-suited.</p>

<p>Upon an application to this Court for an injunction to restrain the defendants from keeping up a mill-dam, to the nuisance of the plaintiff's mill privilege higher up the stream, it was held, that the case was within the equity jurisdiction of the Court.</p>

Writ of error to reverse a judgment rendered by a justice of the peace in an action .brought by Tourtellot against Arnold. The error assigned was, that it did not appear by the officer’s return upon the writ against Arnold, that any legal service thereof was made upon Arnold, or that he had any legal notice of the suit. That writ was returnable on the 2d day of July, 1833, and Arnold was described in it as being of Thompson in the State of Connecticut.

<p>Replevin for three kilns of bricks attached by the defendant on several writs against Joseph Evans. Plea, property in Evans. Replication, property in the plaintiffs. Trial before Shaw C. J.</p> <p>It was proved that Hunting and Lawrence had a certain trick-yard in Cambridge, originally leased by A. Binney to J. Wilson, who assigned the lease to Hunting & Lawrence</p> <p>On the 1st of March 1829, the following agreement was made between Hunting & Lawrence on one part and Evans on the other : — “ Memorandum of an agreement &c. showeth, that said Evans has agreed to make or cause to be made from eight to ten hundred thousand good merchantable brick in the brick-yard at Cambridge &c. ; said Evans agrees to hire the men and board to the best advantage, to perform the manufacturing of said brick, and said Evans agrees to give in his time and services in making said brick; and said Hunting & Lawrence agree to attend to selling of brick, purchasing of wood and all necessary materials for the manufacturing, collecting the bills &c. to the best advantage, and after the brick are made, and the labor and board of the men are paid, and all materials and tools of every kind are paid for, and the said Evans paying to said Hunting & Lawrence sixty cents per thousand for each and every thousand brick made or clay sold, as rent therefor, then the parties agree to share the profits or loss, as the case may be, one half each ; said Evans agrees to pay every attention to have the brick made in the best manner and in good season for making brick ; said Hunting & Lawrence shall have full power to retain sai'l Evans’s part of the brick or money collected or debts due for brick &c., in their possession, to the amount of all sums of money now due from said Evans and such other sums of money, goods &c., as they may from time to time advance him; all of which the parties agree to perform according to the true intent and meaning.”</p> <p>No lease of the yard was given to Evans, and Hunting testified that Hunting & Lawrence expected to secure to them selves, by the foregoing contract, a lien on the bricks to be manufactured in pursuance thereof, for the payment of any balance that might be due them.</p> <p>The plaintiffs offered to prove, that under such contracts for the manufacture of bricks, it is customary for the owners of yai ds to retain all in their hands and account with the makers of bricks for their share of the profits, after the sales are made and the proceeds collected. This evidence was rejected by the Court.</p> <p>On the 3d of July 1829, Hunting & Lawrence stopped payment and assigned all their property, including the brickyard and all their interest therein and property thereon, to the plaintiffs, for the benefit of the creditors of the assignors, and on the same day delivered possession of the yard and all the property thereon to the plaintiffs, in presence of Evans ; and the plaintiffs then and there appointed Evans their agent, by a writing as follows : — “You will please take the charge and care of all the property and effects in and about the brick-yard &c., the said property having been this day assigned to us &c., you will proceed to sell the same at retail until further orders from us, for cash only, and whenever $ 100 is received, you will deposit the same in the Branch bank to our credit. Please keep and render us an exact account of your doings herein.”</p> <p>Hunting & Lawrence made large advances for the yard m 1829. Evans as agent of the plaintiffs, thus appointed, sold bricks to divers persons.</p> <p>On Friday, February 26, 1830, the plaintiffs put a stop to sales by Evans, and directed Hunting, who had been their agent in the business of the yard, to make a final settlement with Evans ; and Hunting and Evans thereupon looked over the statements, and accounts and cast them up for that purpose.</p> <p>Hunting testified that at this settlement Evans agreed to cart all the bricks ; the common bricks, at five shillings per thousand. No price was fixed for the faced bricks. Upon the settlement, the witness, in behalf of the assignees, agreed to take all the bricks at certain estimated prices. The assignees meant to take all the property and allow Evans his half in account. The bricks were estimated at 370 thousand, and at the estimated prices amounted to $ 1830; the board &c. at $ 200 ; making $ 2030. Taking the whole to the account of the assignees and crediting Evans his part, there would still he a balance due to the assignees, which was to be paid in carting. It was agreed, that if the bricks overran the estimated number, the assignees should account to Evans, and if they fell short, he should account to them, for the difference. They were to be counted in the course of the ensuing week. It was agreed that this should be a definitive settlement, as Evans was not to take the yard again. Nothing remained but to count the bricks, and make the allowance on the one side or the other, if the number varied from the estimate. On cross-examination the witness testified, that at this settlement there was an express understanding with Evans, that the assignees were to take the bricks to their own account; it was a sale of his half. Evans stated expressly that the workmen had all been paid, and that he had paid all charges. Evans after this settlement carried one load of bricks to G. W. Blake. The assignees were to take Evans’s half, as they owned one half before. The witness considered the bargain and sale complete, except that the bricks were to be counted. That was to be done the forepart of the ensuing week. When the witness went over to take the count, he found the bricks had been attached as the property of Evans. Had it not been for the attachment, a regular account current would have been settled. The witness understood that Evans was to proceed immediately to cart the bricks to Boston, which he solicited, but the final settlement was not to wait till the bricks were carted, but was to be finished as soon as they were counted.</p> <p>The defendant was proceeding in his defence, when a ques tion arose, whether the plaintiffs had made out a prima facie case. It being necessary that they should show .that they were the sole owners of the property in these bricks, two preliminary questions arose, viz : —</p> <p>1. Whether by the terms of the contract Evans was interested in the bricks, as joint tenant or tenant in common, when they were made in pursuance of the contract and were fit for market; —</p> <p>2. If that were so, then whether upon the facts stated, such a sale and delivery had been made by Evans before the attachnient, as to divest his interest.</p> <p>A nonsuit was ordered, subject to the opinion of the whole Court.</p>

<p>Action on the case for a disturbance of the plaintiff’s several fishery in Merrimac river. Pleas, 1. The general issue ; 2. That the defendant was seised in fee "of the close &c., being part of the bed of the river, covered with stone, useful for building, which he had occasion to quarry, and therefore, he removed the plaintiff’s nets and pots as carefully &c. Replication, traversing the defendant’s seism, and tendering. an issue thereon, which is joined. At the trial, however, the right of soil was not seriously contested, but the plaintiff relied on his title to a several fishery on the defendant’s soil.</p> <p>The cause was tried before Shaw C. J., and after a verdict for the plaintiff, the defendant moved for a new trial, on several grounds.</p> <p>The motion states, that the defendant offered to show, by the production of the record, that in a former action of trespass quare clausum, brought by Whiting against Melvin, for certain alleged trespasses to the same fishery, claimed by Whiting as his fishery, Melvin pleaded, 1. That he, and those whose estate-he had &c., were seised of a certain close as of their freehold, and that the fishery was a free fishery appurtenant to the close. 2. That the fishery tvas a public fishery, in which all the citizens of the commonwealth had a right to fish at their pleasure. 3. That the place where, is a part of Merrimac river, which is a great public river, in which Melvin and all those under whom he claims, have had a right to fish &c. But the motion further states, that Melvin did not, in any of his pleas, claim title to the fishery as a several fishery; and that the defendant contended, on the trial of the present action, that the pleadings so offered in evidence amounted to confession or admission, by matter of record, that Melvin had not nor claimed to have, any title to a several fishery, but that the evidence was rejected.</p> <p>In a report made some time after the trial, the chief justice states as his impression, that the record was ruled to be immaterial, having no tendency to prove an admission adverse to Melvin’s title to a several fishery, which was not claimed in the pleas, yet that it was subsequently offered and admitted for another purpose, namely, for the purpose of fixing the time when that suit was commenced and terminated, by way of fixing the time at which the controversy about the soil and the fishery commenced.</p> <p>The plaintiff, in support of his title to a several fishery in the soil of the defendant, relied upon proof of use and enjoyment as evidence of a grant, no deed from the defendant, or any one under whom he holds, being offered. There was evidence tending to show that Melvin, and those under whom he claims, used and enjoyed the right of fishing exclusively and adversely to Andrew Fletcher and his heirs, under whom Whiting claims, for some period in Fletcher’s life time; that Fletcher died intestate, leaving seven children and heirs, all minors ; that after they came of age their estate, through mesne conveyances, passed to Whiting ; and that the plaintiff’s exclusive possession remained uninterrupted by any adverse act or claim of the heirs, or of any person claiming under them, until it was interrupted by Whiting.</p> <p>The jury were instructed, that to raise such presumption of a grant, it must appear that such exclusive right had been used and enjoyed against those who were able in law to assert and enforce their rights, and to resist such adverse claim if not well founded, and therefore, that if the persons against whom such right is claimed, were under the disability of infancy, the time d,uring which such disability continued was to be deducted, in the computation of twenty years and that if the jury found that the adverse possession in the lifetime of Fletcher, added to that which was held after his heirs became of age (there having been no interruption in the mean time), amounted together to the period of twenty years’ adverse possession, then they should find for the plaintiff. This instruction, to which the defendant excepted, constituted the second ground of the motion for a new trial.</p> <p>It was proved at the trial, that the letters A. F. were engraved on the rock where the fishing pot nearest to the shore was set, and the defendant offered to submit this fact to the jury as evidence of claim to the fishery by Andrew Fletcher. There was no evidence at what time or by whom those letters were engraved, but it was proved that they were seen on the rock soon after the death of Fletcher, when his estate was appraised, during the minority of his children. They were within a few feet of the boundary line between Fletcher’s lot and the lot next adjoining below. The chief justice considered, not only that it was uncertain when, by whom and for what purpose they were placed upon the. rock, but supposing them placed there by Fletcher as indicative of some claim, it was wholly uncertain whether it was a claim to tire fishery, or a claim to the soil, and that it could not be rightfully considered by the jury as evidence of a claim of title to the fishery. This ruling was another ground of the defendant’s motion.</p>

<p>In an action for use and occupation brought by a mortgager, the mortgagee is a competent witness to prove that he entered for condition broken and then leased the land to the defendant, and that the mortgage has been foreclosed.</p>

<p>The defendant signed a writing in which he recites, that the plaintiff has delivered to him to keep, “ one horse of the value of 100 dollars,” and he promises to keep the same until called for and then to deliver it to the plaintiff, and to save tne plaintiff harmless from all costs, trouble and expense that shall arise to him in consequence of his entrusting the property to the defendant. The plaintiff afterwards demanded the horse and it was‘delivered to him, but he gave the defendant notice that he received it only in part satisfaction of the contract, because it had been injured. The plaintiff then sold it for less than 100 dollars 5 and in an action of assumpsit on the written contract, to recover for the alleged injury, it was held, that the writing was only primk facie evidence of the value of the horse at the time when it was received by the defendant, and that for the purpose of ascertaining the damages sustained by the plaintiff, parol evidence was admissible to show its true value at that time.</p>

<p>Certiorari to the county commissioners. By the return of the commissioners it appears, that at a meeting of the commissioners of highways on November 14, 1826, upon the petition of Atherton H. Stevens and others for a new highway from Davenport’s tavern in Cambridge to Canal Bridge, the commissioners of highways adjudge that public convenience and necessity require that a part of the highway prayed for should be laid out ; and as to the remainder of the highway prayed for, they defer the consideration and decision thereon to a future meeting. They then proceed to lay out the part adjudged to be of common convenience and necessity, and make a return of their doings to the Court of Sessions. It further appears, that at a meeting on October 23, 1827, the commissioners of highways, upon the same petition, adjudge another part of the new highway prayed for, to be of common convenience and necessity, and they lay it out and make return of their doings to the Court of Sessions. Of this part of the new highway thirty-one rods and a half were laid out over and upon the Middlesex turnpike road, and in awarding damages to persons over whose land the highway was laid out, the commissioners of highways award to the proprietors of West Boston Bridge, as lessees of the turnpike corporation, the sum of 200 dollars.</p> <p>Upon this return of the county commissio íers, F. Dexter, of counse. for the proprietors of West Boston Bridge, upon whose petition the writ of certiorari was awarded, moved tliaJ these proceedings of the commissioners of highways and of the Court of Sessions be quashed.</p>

<p>At the term of this Court in the county of Middlesex, in April 1828, an indictment was found, charging “that DavidL. Child, of the city of Boston, in the county of Suffolk, esquire, being a person of a malicious disposition, and wickedly intending and contriving, as much as in him lay, to injure and vilify the good name, fame, credit and reputation for honesty and integrity, of one John Keyes, esquire, a member of the honorable senate of the General Court of Massachusetts aforesaid, and chairman of the committee of accounts duly appointed thereto by the legislature of the said commonwealth, and maliciously intending to deprive the said John Keyes of his offices aforesaid, and the confidence of the people of his senatorial district, on the 29th day of March 1828, with force and arms, at Acton in the county of Middlesex aforesaid, a certain false, scandalous and malicious libel, of, concerning and against, the said John Keyes, falsely, wickedly and maliciously, did frame and make, and did then and there cause the same false, scandalous and malicious libel to be printed, in a public newspaper, called the Massachusetts Journal, wherein, under a paragraph headed 4 The new nomination in Middlesex,’ among other things, the '.aid false, scandalous and malicious libel, of and concerning the said John Keyes, is set° forth in the words, and to the effect following, to wit: 4 People of Middlesex, we have gone through these troublesome details to prepare you for the fact, which we are now to state. In this committee of accounts (meaning the committee of the legislature aforesaid) which had advertised for sealed proposals for the contract of printing, the honorable chairman, Mr. Keyes, ( meaning the said John Keyes,) proposed, before a seal was broken, that the contract should be given to the Boston Statesman, (meaning to the proprietors of that paper,) provided their proposals were not more than $ 500 higher than any others. This was no more nor less than a proposal to give $ 500 from the treasury of Mass, to that reprobated Jackson press.’ And that the said David L. Child, on the day and year last aforesaid, with force and arms, at Acton aforesaid, in the county aforesaid, the aforesaid false, scandalous and malicious libel so as aforesaid framed, printed and published, did utter and publish, to divers good citizens of the said commonwealth, in different towns in the said county of Middlesex, to the great damage, infamy and discredit of the said John Keyes, in evil example ” &c.</p> <p>At October term 1828 the indictment was tried and a verdict returned in favor of the commonwealth ; whereupon the defendant moved in arrest of judgment, on the ground that no crime or offence is sufficiently charged or alleged in the indictment, to put the defendant to answer the same, or to warrant a judgment against him ; and that the indictment sets out as a libel, that which does not, upon the face of it, import to be a libel, and yet the indictment does not contain any colloquium or introductory averment, that the alleged libel was written of and concerning the extrinsic matter, which was necessary in order to make it of libellous import, and that the innuendoes, so far as they purport to introduce such extrinsic matter, cannot supply the omission of such colloquium.</p>

<p>Assumpsit, upon a promissory note for 32 dollars, dated December 8, 1822, signed by one Temple, the defendant’s testator, and indorsed to the plaintiff. Pleas, the genera issue and the statute of limitations.</p> <p>At the trial in the Court of Common Pleas, before Strong J., the plaintiff offered to prove, that, within six years before the commencement of the action, Temple acknowledged that the note was due and promised to pay it. The defendant then proved, that at the time when it was alleged that the acknowledgment and new promise were made, Temple was under guardianship of one Stevens, as a spendthrift; and the judge ruled, that the acknowledgment and promise by Temple while under guardianship, would not prevent the statute of limitations from barring the plaintiff’s right to recover on the note.</p> <p>The plaintiff then offered to prove the promise of the guardian, made within six years before the commencement of the action and during his guardianship, to pay the note; but this evidence was ruled to be inadmissible.</p> <p>The jury having returned a verdict for the defendant, the plaintiff filed exceptions to the above rulings of the judge.</p>

Trespass for taking and carrying away 100,000 bricks, in beptember 1829. The defendant justified, asa deputy sheriff, the supposed taking, having attached the bricks as the property of one Griffin, by virtue of original writs in favor of two creditors of Griffin.

<p>Trover for a horse. Plea, the general issue.</p> <p>The parties stated a case.</p> <p>The plaintiffs, to support their action and prove their title to the horse, produced a deed, dated August 21, 1828, from one Jones to one Blanchard, by which the former conveyed to the latter the horse in question, with other property, upon condition that on payment of bis note to Blanchard for $982-71, the conveyance should be void ; and at the same time the horse was delivered to Blanchard.</p> <p>Blanchard had previously owned the horse jointly with Jones, and they as partners occupied a stable in which the horse was kept at livery. Previously to the conveyance the partnership was dissolved, and Blanchard had sold his interest in the property, including the horse, to Jones; and Jones alone thereafter occupied the stable and possessed the property as his own.</p> <p>On the 1st of November ensuing Jones sold the horse to Clark, who then took the stable in his own name, together with the horse and the other property, and hired Jones as a laborer in the stable. Blanchard knew nothing of this until some days after, and when it came to his knowledge he made no objection.</p> <p>The stable continued to be managed by Clark in his own name, and the horse was let for hire and employed as usual, without any interference, until June 1829, when Clark and Jones delivered it to one Shorey, to be kept -at pasture in St. Johnsbury, Vermont. Shorey deposes, that he understood from Clark and Jones, that the horse was theirs, and that they authorized him to sell or exchange it. Jones testified that he did not authorize Shorey to sell or exchange it, but he was not present at a previous interview between Clark and Shorey, and did not know what was said between them. He also stated that he did not inform Shorey that Blanchard had any right in the horse. •</p> <p>On the 10th of July 1829, Blanchard assigned his deed and note before mentioned, to the plaintiffs ; and on the same day Clark conveyed to three of the plaintiffs, (there being four in all,) his right in the horse and in a part of the other property originally conveyed by the deed to Blanchard. The property was then delivered accordingly to the plaintiffs, except the horse, which was in Vermont.</p> <p>On the 13th of the same July the horse was attached in Vermont, at the suit of one Barker, upon a joint note of Clark and Jones, which note was the property of the defendant in this action ; and that suit was brought by his direction and for his benefit. Judgment was recovered against the defendants in that suit, and the horse was sold to satisfy the execution, agreeably to the laws of Vermont. The present defendant was the purchaser.</p> <p>About three or lour days after the attachment, Shorey re- • ceived a letter from Clark, informing him that the horse had been sold to the plaintiffs, and requesting him to deliver it. Of this letter he soon after informed Barker; the horse however was not delivered.</p> <p>If these facts showed a sufficient title and right to recover, in the plaintiffs, judgment was to be rendered in their favor for 125 dollars and interest from January 1, 1832 ; otherwise the plaintiffs were to be nonsuited.</p>

<p>In debt on a bond to the plaintiff as sheriff, conditioned that the defendant should keep a fair register of all warrants &c. that might come to his hands as a deputy of the plaintiff, and should annually, in January, April, July and October, furnish the plaintiff with a true copy thereof, the defendant pleads performance generally, and the plaintiff, in his replication, sets forth as a breach, that the defendant, from the time of making the bond until the day of commencing the action, (more than seven years,) has not furnished the plaintiff annually, in January, April, &c., with a true copy of any fair register of all warrants &c. 5 but on the contrary, the defendant fraudulently and deceitfully furnished the plaintiff with a certain false and fictitious writing purporting to be truly abstracted from a fair register by him kept. JTeld, that the replication was bad for duplicity, because it assigned more than one breach, every failure to furnish a copy at the end of a quarter of a year being a distinct breach $ but that supposing these several breaches constituted but one, the replication was nevertheless bad, it being set forth argumentatively only, (if at all,) that the defendant did not keep a fair register, and if there had been a direct averment of that fact, it could not have been pleaded with the other averment, that the defendant had not furnished a copy.</p>

<p>Upon an application for a mandamus 10 commissioners of highways, commanding them to construct and finish a highway, alleged to have been insufficiently made but which the commissioners had already accepted as completed, it was held, that a mandamus would not lie, the question of the sufficiency of the construction of the road being submitted by law to the judgment of the commissioners.</p>

<p>One who was formerly a town clerk, but is no longer ia tito office, cannot amend a town record made by him when town clerk.</p> <p>Under the clause in St. 1826, c. 143, that u the school committee of each town shall procure class-books, at the expense of the town, and to be paid for out of the town treasury,” the committee may either get the books on the credit of the town, or may buy them themselves and thereby make themselves creditors of the town.</p> <p>The requisition of the statute, that the school committee shall give notice-of the place or places where such books may be obtained, is substantially complied with, if the books are placed in the hands of the schoolmasters, with notice to the schools that they may be obtained of the masters.</p> <p>Where the record of the annual meeting of a town for the choice of town officers, stated the election of a prudential committee, and then of an u examining committee,” of five persons, and no other committee chosen was designated or described as a school committee, it was held, that the terms examining committee were sufficient to denote the school committee.</p>

<p>Petition for partition. The petitioner states, that he is seised in fee of an undivided moiety of a dam in Middle-borough, known by the name of Fall Brook Furnace dam, together with the right to use one undivided moiety of the" water running through and over the dam, together with a moiety of the privileges and appurtenances thereto belonging, in common with Seth Miller and Thompson Miller; and he prays that his purparty of the dam and water may be set out to him, to hold in severalty.</p> <p>The parties agree, that John Miller, being seised in ee of land on both sides of Fall brook, on which land the dam stands, and also of the dam and the mill thereon, and of the privilege of using the whole of the water, executed, on March 30, 1775, to his son Seth, the father of the respondents, a deed of a part of the land above mentioned, lying on the southerly and easterly side of the brook and bounded by the brook, containing about seventy-four acres, and on this Jot is all that part of the dam which is on the southerly side of the brook; and after the description of the land in the deed these words follow:—“Together with one half of the saw mill standing on the stream, with one half of the stream, dam, log-ways and appurtenances thereto belonging.”</p> <p>At the same time John Miller executed to his son Jedediah, the petitioner, a deed of a lot of land not lying on the brook, and after the description of the lot these words follow : — “Together with one half part of the sawmill and dam on Fall brook, with one half part of the stream and of all the privileges and utensils to said mill belonging, with the privilege of going to and from the saw mill on Fall brook, through gates and bars.”</p> <p>On the same day John Miller conveyed to Mary Millei and Lucy Miller all the land he owned on the northerly side of Fall brook, except the land which the mill pond flows, together with about a quarter of an acre where the saw mill and log-ways stand, or a suitable piece of land for the use of the saw mill, with the privilege to go to and from said mill through gates and bars.</p> <p>On the dam and privilege there is now no mill standing The two brothers Seth and Jedediah, in the lifetime of Seth, let the use of the dam and water privilege to the owners of a furnace just below the dam, during the time that the furnace was occupied, and the rent was paid to them, a moiety to each. The right and interest of Seth Miller deceased was devised by him to his sons Seth and Thompson, the respondents.</p> <p>If partition could be made of the dam, its privileges and appurtenances, under the statute on the subject of partition, the respondents were to be defaulted ; otherwise the petitioners were to become nonsuit.</p>

<p>In 1692 a highway was laid out the whole length of an extensive beach, and without an award of damages to any person, for the land so taken, and from the beach through the complainant’s farm to a county road, and for more than sixty years he had kept a gate across the way leading to such county road. The beach was a place of common resort for fishermen, fowlers and haymakers, coming from the town in which the beach was situate, and from the adjacent towns, who time out of mind had been used to turn their horses upon the beach for depasturing. The pasture in which the complainant usually depastured his cattle adjoined the beach, and there being no fence between his pasture and the beach, the cattle fed at pleasure on the beach. It was held, that whether the fee of the beach was in the town or in the commonwealth, the complainant could not, by such enjoyment, however long continued, acquire a prescriptive right of commonage, because it was a permissive and not an adverse enjoyment.</p>

<p>A tract of land, with a dwellinghouse thereon, was granted in 1754, to T and L, habendum to them, their heirs and assigns, in equal halves between them. The tract included a parcel of woodland, of which partition was sought. L died in 1756, without issue, and the petitioners for partition claimed as descendants of one of his heirs. After Vs death, T lived in the dwellinghouse, and fenced and improved a part of the tract, until 1779, when he died, but the woodland was never enclosed. By a decree of the court of probate, all the estate was settled upon his son, who occupied the house and land, until 1784, when he died, having devised the same to the respondent. Immediately on his death the respondent entered and occupied the same, and cut wood from year to year over nearly all the woodland. The petitioners and those through whom they claimed, never cut any wood thereon, since the death of L, until within a few years, when the petitioners cut a few loads, to which the respondent objected. It was held, that supposing the grant of 1754 created a tenancy in common and not a joint tenancy, yet that there was an ouster of Vs heirs for at least forty years, and that the petition for partition, therefore, could not be maintained.</p>

<p>Trespass. The plaintiff declared in his first count, that the defendants broke and entered his close, and that being so entered, they took and carried away a stick of timber there found. The second count was for taking and carrying away the stick of timber.</p> <p>At the trial, before Slum C. J., it appeared that the plaintiff was the owner of a farm in the town of Scituate, within the limits of the old colony of Plymouth, bounded easterly by the sea, which farm included two pieces of land conveyed to the United States as hereafter mentioned, and that, at the time of the commission of the supposed trespass, he remained the owner of all of the farm, excepting the parts so conveyed.</p> <p>In 1811 an act was passed by the legislature of Massachusetts, (Si. 1810, c.54,) providing that the United States might purchase or take any tracts of land, not exceeding six acres, which should be necessary for the lighthouse authorized to be erected at the entrance of the harbor of Scituate, reserving to this commonwealth exclusive jurisdiction over the land, except so far as might be necessary to enable the United States to carry their object into effect.</p> <p>In pursuance of this act certain commissioners appraised and set off to the United States the two parcels of land above mentioned. The boundaries of the first parcel were described as beginning at a stake and stones and, after various courses, running northeasterly “to the cliff, thence by the cliff to the first mentioned stake and stones.” Below the cliff was a beach. A plan of the farm and of the two parcels set off to the United States, was used in the case.</p> <p>It appeared that the stick of timber in question was discovered by the defendants on the rocks, at low-water mark, below the easterly side of the parcel of land above described, that it was then marked by one of the defendants with his name, and that the defendants subsequently attempted to carry away the stick from this place, but were prevented by the roughness of the sea. The stick was afterwards thrown upon the beach below and adjoining the plaintiff’s land, and on the easterly side thereof, and the defendants took and carried it away from the place last mentioned and converted it to their own use.</p> <p>If upon the facts in the case the Court should be of opinion that the plaintiff was entitled to recover, the defendants were to be defaulted, and judgment to be rendered against them for the sum of 15 dollars damages ; otherwise a new trial was to he granted.</p>

<p>Where in the conveyance of land a description is given, which has not acquired a fixed legal construction, or a boundary is referred to, which is variable, parol evidence is admissible in order to ascertain the meaning and construction of the deed.</p> <p>Thus, where the deed described the land as bounded on a certain pond, and upon applying the deed to the local objects embraced within its descriptive terms, it appeared that the pond was a natural pond which was raised more or less at different times by means of a dam existing and in use at the time of the convey anee, so that there was a latent ambiguity, it was held competent to a party to prove by parol evidence, that a certain line was agreed on and understood at the time of the conveyance as the boundary of the pood.</p>

<p>This was an action of debt brought originally in this Court, for the benefit of Isaac Churchill, who was under guardianship as a spendthrift.</p> <p>The declaration contained two counts. The first was on s bond dated June 20, 1825, given to the judge of probate by the defendant and two other persons as principals and another as surety, on taking out the letters of guardianship. The second was on a bond, dated May 17, 1826, given to the judge of probate by the defendant and another as principals, and two others as sureties, in pursuance of a license obtained at this Court to sell the whole of Churchill’s real estate, because a partial sale would injure the residue.</p> <p>To the first count the defendant pleaded omnia performavit. The plaintiff replied, setting forth a fraud in the sale of one parcel of land, under the license. To this replication there was a general demurrer.</p> <p>To the second count also the defendant pleaded omnia performavit. The plaintiff replied, that under the license the defendant sold another parcel of land, containing twenty-three acres and a half, yet that he carelessly and negligently and contrary to his duty in that, behalf, estimated it at only seventeen acres, and had not accounted for it at a higher rate ; whereby he unfaithfully sacrificed the interest of his ward. The defendant rejoined, traversing this allegation, and tendering an issue to the country, which was joined ; and upon the trial a verdict was found in favor of the plaintiff.</p> <p>The defendant moves in arrest of judgment, 1. Because the writing obligatory declared on in the second count is not a probate bond, and this action thereon having been brought originally in this Court, the Court have no jurisdiction thereon.</p> <p>2. Because the action is on a joint bond, and there is no allegation that any of the obligors is dead or without the jurisdiction of this Court, and only one of them is made defendant.</p>

<p>Appeal from a decree of the judge of probate in the county of Plymouth, upon the presentment of an account by Martin Hayward and Ebenezer Lobdell as guardians of Isaac Churchill, a spendthrift. The appeal was entered by Hayward and Lob-dell as appellants, but both parties filed reasons of appeal.</p> <p>The guardians considered themselves aggrieved by the decree, because each of them was made to account for the sum of ^ 5Í2-50, for cash received of Erastus Leach and Lemuel . Sturtevant, for land said to be sold to them on March 27, 1830, and they assigned the following reasons, of appeal: —</p> <p>1. The guardians never sold any land of their ward to Leach and Sturtevant for the sum with which they are made chargeable in the account, or for any other sum.</p> <p>2. If in- judgment of law they did unintentionally make sale of the land to Leach -and Sturtevant, they are chargeable with a far less sum than they are charged with ir. the account.</p> <p>3. In fact the guardians sold the land to Benjamin Warren, on June 22, 1826, and for the sum of $680*11, for which sum only ought they to be made chargeable.</p> <p>The following reasons of appeal were filed on behalf of Churchill, by Ellis and Cushman, who succeeded Hayward and Lobdell as guardians : —</p> <p>1. Because in the account is charged the sum of $ 31*85, ‘'balance of interest on this accountand because Hayward has charged the sum of $220*78, balance of private account, and Lobdell, the sum of $ 446,. amount of private account, in which charges interest is included.</p> <p>2. Because in the account is charged the sum of $ 25, paid to Benjamin Warren, which was admitted by Hayward and Lobdell to have been paid to Warren for being the channel of conveyance to themselves, of land of their ward, struck off, at a sale under license of court, for $680*11, which land they resold for $ 1025, but credited in their account the sum of $ 680* 1I only, on account of the land *, and this sum of $25 was deceitfully and fraudulently paid by the guardians, with the design of benefiting themselves at the expense of the trust estate, and that estate has received no benefit thereby.</p> <p>At the trial, before Putnam J., it appeared that Hayward and Lobdell were appointed guardians in June 1825 ; that at October term 1826 of this Court they obtained license to sell the whole real estate of Churchill, because a partial sale would injure the residue ; and that in pursuance of the license, a sale of the whole real estate was made on June 26, 1826.</p> <p>In December 1829, the guardians rendered an account in the probate court, in which they charged themselves with the sum of $680*11 received of Warren on account of the homestead farm, part of the ward’s real estate sold as above mentioned. It was contended in the court below, on the part of the ward, that the guardians ought to be charged with the sum of $1025 instead of $680*11, on account of the homestead, because it had been purchased, not by Warren, but by the guardians themselves, and had been afterwards resold by them to Leach and Sturtevant for $ 1025 ; and that all benefit derived from the homestead, during the ownership of the guardians, and from the resale, belonged to the ward; and the judge of probate decreed that the guardians should be charged with $ 1025, the amount of the sale to Leach and Sturtevant</p> <p>Warren testified that he attended the sale, but had no intention of purchasing the homestead. Lobdell took him aside and asked him if he had any objection to buying it for him, and he answered that he had not. Lobdell told him he might bid up to $700, but if it went over that, he did not care any thing about it. It was knocked off to him for $ 715, and Lobdell ratified the bidding. There was a dispute between the witness and one Simeon Churchill, whose the bidding was, the latter claiming it at $720. The witness, having consulted Lobdell, said he .phould leave it to the auctioneer. The auctioneer decided in favor of the witness. The witness did not see any unfairness. The witness considered that he took the land by estimate. Three days after the auction he was desired by Lob-dell to see Hayward measure it. It was not measured at the witness’s request. It came to $ 680-11 by measurement. The witness received a deed of the land from Hayward and Lobdell in July, and in the following November or December gave back a deed to them. He paid nothing and gave no security. When he gave this deed, he knew that Hayward was to have a part of the estate. Between the time of the auction and the giving of that deed, the ward’s father (who had an interest for his life, in the land) died, and the witness could then have sold the land at an advance of $ 200 or $ 300. After he had given the deed to Hayward and Lobdell, he called on the wife of the ward, by the request of Lobdell, to see if she would release her dower, but she refused. The witness exacted of the guardians $ 50 for his trouble and attention, and they gave him $25. If the land had been taken off his hands immediately, he would not have charged any thing. He expected to have no more to do with it.</p> <p>One Bryant testified, that when the dispute arose at the auction, he said to Hayward, on being applied to by him, that the hammer was down before Simeon Churchill bid.</p> <p>One King testified, that he thought the fall of the hammer and Simeon Churchill’s bidding were very near together, though the hammer fell first. Hayward said he would leave it to the company. A number said it was fair ; one Ripley said it was not fair ; Hayward probably did not hear him.</p>

<p>At the trial of this action in the Court of Common Pleas, at April term 1831, before Williams J., the plaintiff offered in evidence a deposition, to the admission of which the defendant objected.</p> <p>The deposition was taken by Isaac Stevens, on the 15th of DiBcember, 1829, and the adverse party was present by an attorney, who made no objection to the taking. A trial of the case was had before a justice of the peace, in October 1829, when Stevens appeared for the plaintiff and signed the pleadings- An appeal from the judgment of the justice was entered at the November term of the Common Pleas next following, when Hercules Cushman Esq. appeared for the plaintiff and was his only attorney of record, and a trial was had in the Common Pleas at August term 1830. Stevens testified, that the action was commenced by Cushman ; that on the day of *he trial before the justice, Cushman, being unable to attend in consequence of ill health, requested him (Stevens) to appear for him before the justice ; that until that time he (Stevens) had bad no connection with the case ; that he did appear accordingly and, with the plaintiff, attended to the trial; and that after the trial he did not consider himself as attorney or counsel for the plaintiff, or as having any thing further. to do with the case, until the August term following, when he was employed by the plaintiff to assist in the trial of the case, and he had ever since continued to be of counsel for the plaintiff.</p> <p>Upon these facts Williams J. admitted the deposition to be read in evidence to the jury-; to which decision the defendant filed exceptions.</p>

<p>Assumpsit, brought by the executors of John Innis Clark. Trial before Shaw C. J.</p> <p>The plaintiffs rely upon an unsealed contract made by Clark and Hood, dated October 28, 1803, by which “ it is mutually agreed, that Hood is to have the land &c. (describing certain land in Somerset) ; in consideration of which the said Hood is to pay the said Clark 700 dollars, 200 dollars of which are to be paid in ten days, half the remainder in twelve months, and the other half, in two years from the above date, with the interest annually ; and the deed to be executed at the completing of the last payment.”</p> <p>The two first instalments had been paid and received, before the commencement of this action.</p> <p>The plaintiffs neither allege nor prove that they ever made, or tendered, or offered any deed or conveyance of the land, but they aver that Clark, in his lifetime, and they, in their capacity of executors, since his decease, have always been ready to convey the land to Hood, and to execute to him a good and sufficient deed thereof, upon his complying with the rorms of the contract on his part, and that they are here in court ready to execute such deed upon his complying with those terms.</p> <p>The defendant contends, that the two first instalments being fully paid, the agreements of the parties in respect to the last instalment are mutually dependent and conditional, and neither is bound to perform, without a tender of performance on the other side, to be made at the same time.</p> <p>On the contrary, the plaintiffs contend, that the promise of the defendant is independent, and that he was bound to pay at the time and conformably to the terms of the contract, in consideration of the engagement of Clark, without any tender of performance on the part of the plaintiffs.</p> <p>The plaintiffs became nonsuit, subject to the opinion of the Court on the above question.</p>

<p>A complaint by a woman under the bastardy act, (St. 1785, c. 66,) accusing a man of being the father of her bastard child, though in some respects in the form of a criminal prosecution, is in substance and effect a civil suit.</p> <p>If a feme covert delivered of or pregnant with a bastard child, is comprehended in the statute, such a complaint cannot be maintained by her without joining her husband.</p> <p>Whether such a complaint prosecuted by the wife without joining her husband, is void, or only voidable upon a plea in abatement, the surceasing the suit is not a valid consideration to support a promissory note given by the party accused.</p> <p>A receipt and discharge from liability, given by the wife to the party accused, is a void act and constitutes no valid consideration for his promissory note.</p> <p>If such a note were valid, the husband might release it.</p> <p>So he might release it, although it were given to a third person as the payee in tnsst for the wife.</p>

Assumpsit on a bill of exchange. Plea, non assumpsit. The facts were, that by St. 1828, c. 6, Joseph Hooper and others were incorporated for the purpose of manufacturing paper, by the name of the Swanzey Paper Company, with tne powers, duties and privileges contained in St. 1808, c. 65, defining the general powers and duties of manufacturing corporations, and the several statutes in addition.

<p>One received a yoke of oxen to keep for the owner, and promised to provide food for them for their work, and to return them by a fixed day, or in case he should pay a certain sum of money by that day, the owner was to release his right to them. The bailee sold them, and the vendee re-sold them, before the term expired} and upon the expiration of the term, the money not having been paid, the owner, after a demand and refusal, brought trover against such vendee. Heldf that the action would not lie.</p>

<p>Land devised to a woman by her father was sold by her and her husband and applied to the payment of the husband’s debts The husband likewise cut a large quantity of wood and timber from her land. Afterwards a farm having been conveyed to the husband and wife “ in equal shares,” they conveyed a moiety of it, together with three other parcels of land, one of which was owned by the husband and the two others, by the wife, to the tenant, in trust for the use and benefit of the wife and her children, the consideration, as expressed in the deed, being, that she had joined with her husband in selling and conveying certain lands devised to her by her father. The sale of the wife’s land was a fair equivalent for one half of the farm conveyed to the tenant. It was held, that as against creditors of the husband, who was insolvent, the conveyance to the tenant was without consideration, for the husband had a legal estate in the moiety of the farm conveyed to the tenant and a freehold in the wife’s land, and these were relinquished without an equivalent; and the wood and timber cut by the husband was deemed not to be a part of the consideration, not being stated to be so in the deed, and there being no evidence of any other consideration than the one therein expressed.</p> <p>Several creditors of the husband having levied on a moiety of the farm as estate held in common, they and the tenant made a partition; after which the demandant, another creditor of the husband, levied by metes and bounds on a part of the moiety assigned by the partition to the tenant. It was held, that the deed from the husband and wife being void for want of consideration as against creditors, the basis and object of the partition failed, so that the tenant took no title under it as against creditors, and that, consequently, he could not object to the form of the demandant’s levy.</p>

Assumpsit for expenses incurred for the relief and support of Aaron Borren, a pauper. The question was whether his settlement was in East Bridgewater.

<p>This was an action of debt upon St. 1797, c. 69, for the preservation of alewives in Weweantit river. It was brought by the plaintiff as treasurer of the town of Wareham, for the several towns of Wareham, Rochester and Carver. There were several counts, framed upon different clauses of the statute* and charging different violations of its provisions by the defendant, but only one penalty was claimed. The defendant pleaded, 1. Not guilty ; and 2. Nil debet. Trial before Slum C. J.</p> <p>Ehenezer Crocker testified that he was the town clerk oí Wareham, and produced the records of the town.</p> <p>By the records it appears, that at the March meeting 183ft the plaintiff was chosen town treasurer.</p> <p>ft was objected that the meeting was not well warned and the plaintiff not duly chosen. The direction to the constable, in the warrant for calling the meeting, was, to warn by posting up notice. The return was, “ Pursuant to the warrant I have notified ” &c., without saying how. It was ruled that as this was the annual meeting for the choice of town officers, it must be intended that the warrant was in fact served by posting up, according to the direction, and that the meeting was regularly warned.</p> <p>It was objected, that there was no sufficient evidence that the plaintiff was sworn. The town record was then offered, wherein was an entry by the clerk, after mentioning the choice of the plaintiff as treasurer, to this effect — “who took his oath before John Fearing esquire.” It was then objected, that this was neither an oath administered by the clerk in open town meeting, nor by a justice of the peace who has returned a. certificate thereof to be recorded, and so not within the statute. St. 1785, c. 75. But it was ruled, that this being done in open town meeting, by a justice of the peace, in presence of the clerk, his record of the fact was good evidence of the administration of the oath to the treasurer.</p> <p>An objection was taken to the admission of the record of the town of Wareham, as made and kept by Crocker as clerk, on the ground that there was no competent evidence of his election and qualification. It appeared by the record of the annual meeting in March 1830, that Crocker was chosen clerk and sworn, but the whole record of the proceedings of that meeting, including the subscribing of his own election and oath, was made by himself as such clerk. It was ruled, that the record was competent evidence of his election and qualification.</p> <p>The St. 1797, c. 69, provides that the several towns of Rochester, Wareham and Carver shall, at their town meeting in the fall of the year annually, respectively choose a committee of three persons in each town, whose duty it shall be to sell and regulate the privilege of taking alewives in those towns, and “ said committee, before they enter upon the execution of their office, shall be sworn to the faithful and impartial performance of their duty, in the same manner as other town officers.” The statute further provides, that “ the owner or occupier of any dam on said river shall annually, betwixt the first day of April and twenty-fifth day of May following, for such term and in such manner as said committee shall direct, open a sufficient sluice-way for the passage of "said fish, and the owner or occupier of such dam neglecting to open, or to continue open a sluice-way as aforesaid, shall forfeit and pay the sum of fifty dollars : and the committee aforesaid shall have power to (pen such dam when neglected as aforesaid, at the expense of the owner or occupier.”</p> <p>Several exceptions were taken to the election and qualification of the committee.</p> <p>By the record of Wareham it appeared, that at a meeting of the inhabitants on November 2, 1829, they “ chose Perez F. Briggs, David Nye and John Fearing committee of herrings at the west end of the town.” It also appeared by the warrant for calling this meeting, that one of the purposes therein expressed was, “to choose herring committee.” Thereupon i* was objected, that the herring committee expressed in the warrant, and the herring committee for the west end of the town, was not the committee contemplated by the statute, and was not invested with the powers intended to be conferred by the act upon such committee. But, it being admitted that in Wareham and its vicinity the names herrings and alewives are used indiscriminately, that the Weweantit river, which is frequented by that species of fish, lies in the west part of Ware-ham, that there is no other stream in that part of the town which is thus frequented, and that no other committee for the Weweantit river was chosen, it was ruled that there was competent evidence to go to the jury, that the herring committee thus chosen was the committee for the Weweantit river contemplated by the statute," and duly invested with the powers thereby given.</p> <p>It was then objected, that there was no sufficient evidence that the committee was sworn, there being no entry to that effect in the town records, and no certificate of a magistrate returned and recorded. The plaintiff then offered parol evidence to prove that they were sworn.</p> <p>Silvanus Bourne testified, that he was then town clerk, that the oath was administered to the committee by Benjamin Fearing esquire in his presence, and in open town meeting, that he made a minute of it in his minute book in which the doings of the meeting were first entered, but he did not enter it in the regular records, because he expected that the magistrate would return a certificate, but no certificate was returned and Fearing has since deceased.</p> <p>Benjamin Fearing testified, that he was one of the executors of the will of his father Benjamin Fearing esquire, and that he had the custody of his books and papers, and the record of his official acts as a magistrate, that he had found a record of his judicial proceedings, but had found no record or memorandum of the administration of oaths and other ministerial acts.</p> <p>It was ruled, that the above evidence was competent to go to the jury, to prove that the committee was sworn.</p> <p>It was further testified by Bourne, that the form of the oath administered to Briggs, Nye and Fearing, imported, in addition to the common form of an official oath, faithfully to discharge and perform their duty, something to this effect — “ and that if any dam or other obstruction is placed in the way of the fish, it shall be removed agreeable to the statute,”—whereupon one of the committee observed that this was unnecessary.</p> <p>It was objected, that this committee was not chosen at a meeting duly warned. It appeared that the town meeting in November 1829 was warned by posting up notice at the town house ; that the preceding March meeting was warned by posting up notice at the house of Benjamin Fearing, and so that the November meeting was not warned in the usual manner ; and no j- ode of notifying having been agreed upon by the town, i was contended, that the warning of the November meeting being conformable neither to the vote of the town nor to usage, it was not well warned. Bourne testified, that the usual mode of notifying town meetings in years past was, by posting a notice on the door of the meetinghouse, which was then used for a town house ; that in March 1829 the meetinghouse was not standing ; that a town house has since been built in connection with the meetinghouse, since which notices have been posted on the town house. Upon this evidence the objection was overruled, and the meeting considered as duly warned.</p> <p>It was therefore held, that there was competent evidence that the plaintiff as treasurer, and the committee on the part of the town of Wareham, were duly elected and qualified according to the provisions of the statutes.</p> <p>The plaintiff next offered evidence of the election of a committee on the part of the town of Rochester.</p> <p>It appeared by the certificate of Abraham Holmes, town clerk, that at a meeting of the inhabitants on October 12,1829, Nathaniel Haskell, George King and Isaac Thompson were chosen “a committee as inspectors oí Weweant.it river.”</p> <p>It was objected that the persons thus chosen were not a committee chosen pursuant to the statute and entitled to exercise the powers given to that committee, being chosen inspectors of the river. But it appearing that no other committee was chosen for this purpose, and that the committee were denominated committee-men or inspectors indiscriminately, it was ruled, that it wras competent for the jury, on this evidence, to find that the persons thus chosen were the- committee on the part of the town of Rochester pursuant to the statute, and in vested with the powers given by the statute to that committee.</p> <p>It was objected, that the meeting was not legally warned. The return of the officer certifies, that he has notified the inhabitants “as the law directs.” It was ruled, for the purpose of the trial, that the meeting was duly warned and held.</p> <p>Parol evidence was then offered to prove that the members of this committee were duly sworn by Charles J. Holmes esquire ; and that he made no record and gave no certificate thereof to be returned and recorded by the town'clerk. This evidence was objected to, but the objection was overruled and the evidence admitted.</p> <p>The plaintiff then offered evidence of the election of a committee on the part of the town of Carver.</p> <p>It appeared by the records of the town, that at a town meeting on September 16, 1829, Gideon Shurtliff, Jesse Murdock and Lot Shurtliff were chosen “herring committee.” Isaac Vaughan, town clerk, testified that all the fishing places in Carver communicate with the Weweantit river ; that the herrings all come up the Weweantit river to the several streams and ponds in that town ; and that no other herring committee was chosen that year, nor more than one such in each yeai for years past. It was ruled that this was competent evidence for the jury, that the persons thus chosen were a committee on the par t of Carver-chosen in pursuance of the statute.</p> <p>To prove that this committee was sworn, the plaintiff called John Savory esquire, who testified that he administered an oath to G. Shurtliff, Murdock and L. Shurtliff in the fall of 1829, at a town meeting in Carver, in this form : — “ You being chosen a committee to preserve the fish called herrings or alewives in the Weweantit river and its branches, will faithfully perform the duties of your trust.” It was objected, not only that parol evidence ought not to be received for that purpose, but that the oath did not conform to that prescribed by the statute, which is, faithfully and impartially to perform &c. But it was ruled, that parol evidence was admissible ; and further, that as the statute did not prescribe a specific form, but only gave a general direction, this direction was substantially complied with by the oath above stated.</p> <p>It was objected, that it did not sufficiently appear that this meeting was duly warned and held. The return of the officer on the warrant was without date, and was as follows: — “Agreeable to the within warrant I have notified the inhabitants of the town of Carver, of the time, place and purpose of the within meeting.”</p> <p>It was held, for the purpose of the trial, that this was competent evidence that the meeting was duly warned and held, and that the committee on the part of Carver were duly elected and qualified.</p> <p>The plaintiff then offered evidence of the obstruction of the river and passage of the fish by the defendant, as charged in the declaration. It was proved that the defendant was the owner and occupant of a dam and mills at a place called the Poles, being the lowest dam on the Weweantit, adjoining tide water. A fish-way had been constructed, consisting of a number of steps, on a side cut, not in the direct line of the stream, for the herrings to pass up. On the 19th of April, 1830, the committee of the "three towns met to examine the river, dam and fish-ways at the Poles. They found that the fish had begun to run, and after examination, voted that the fish-way was in their opinion insufficient, and that the defendant, as ownei and occupier, be required to open a passage on the main stream dam to the bed of the river; of which requisition notice was given to the defendant, but he did not comply with it. On the 21st the committee renewed this requisition, with an intimation, that if the defendant did not proceed to take up the dam in the manner required, by a certain hour, the committee would proceed to do it. As the dam was not taken up or opened by the time named, the committee proceeded to take up the planks on the waste-way dam, and would have made an opening to the bed of the river had there been sufficient time that day. The next day the committee returned, and found that the planks had been replaced; and on application to the defendant, he said he was accountable for it, though he did not do it nor order it to be done.</p> <p>The committee then voted to prosecute, and instructed the plaintiff accordingly to bring this suit. The statute enacts, “that the treasurers of the aforesaid towns respectively are hereby empowered, upon the complaint of any of the committee aforesaid, to sue for the recovery of any forfeitures ” &c. No complaint was made to the plaintiff in writing, but he was one of the committee, and they considered the vote as a sufficient complaint to him, that the way for the fish was in their judgment insufficient and unsatisfactory, and as a request to him to prosecute for the penalties.</p> <p>The committee did not direct how wide a passage should be opened, nor for what length of time it should be kept open.</p> <p>It was then contended, that there was a variance between the averment and the proof, and that the proof did not support the allegation.</p> <p>In the fourth count, on which alone the plaintiff relied, it was averred, that the committee directed the defendant to open a sluice-way to the bed of the river and to keep the same open till the 12th of May. Upon reference to the statute it appeared, that not opening a sluice-way when required, and not keeping the same open, are distinct offences, and subject to distinct penalties ; and it was ruled, that as the violation here assigned was the not opening, it was sufficient to prove that an order was given for opening the sluice-way, which was the substance of the issue, and that the averment, that a direction was given that it should be kept open till the 12th of May, was not material, and so that there was no fatal variance.</p> <p>It was further objected, that this direction was too uncertain, in not specifying the width to which the dam should be opened, and the time that it should be kept open. But it was considered, that as the statute left it to the discretion of the committee to fix the time it should be kept open, within certain limits, they were not bound to fix the time in the first instance, but might require it to be opened, for the purpose of experiment ; with which order the defendant was bound to comply, though without a further order he would not incur any penalty by not continuing the passage open.</p> <p>As to the other ground of the objection, it was held that a direction to open the passage down to the bed of the main stream, though no particular width was specified, was sufficiently definite to require a compliance on the part of the defendant, the word passage, ex vi termini, meaning an opening in the dam of sufficient width to permit the water to run out freely and the fish to pass up.</p> <p>The defendent then contended, that the requisition was unreasonable, and proposed to offer evidence to satisfy the jury, that the fish-way provided by him was sufficient and ought to be deemed satisfactory, that the requisition to open his dam to the bed of the main stream was unreasonable, that he was not bound to comply with it, and so had incurred no penalty by a non-compliance. But it was considered and ruled, that as he did not propose to prove that the committee acted corruptly or under sinister or unjustifiable motives, (which was disclaimed,) that as the committee were invested with a discretionary power to decide what kind of fish-way or passage would be sufficient and satisfactory, it was not an open question of fact for the jury to consider, whether the passage was reasonable and sufficient; which would in effect be an appeal from the committee to the jury; but if the committee, acting in good faith, and in execution of the power vested in them by the statute, declared the fish-way provided by the defendant, to be insufficient and unsatisfactory, and required the defendant to make another and different one, the defendant was bound to comply with such requisition, and by force of it would incur a penalty by a noncompliance ; and therefore the proposed evidence to the jury, upon the general question of reasonableness, was inadmissible.</p> <p>The cause was by the consent of the parties withdrawn from the jury, and continued, subject to the opinion of the whole Court upon the foregoing facts.</p>

<p>A grant of land bounding on or near a pond and stream, reserving the mill and water privilege, is a reservation of the right of flowing the land so far as necessary or convenient, or so far as it has been usual to flow it, for that purpose, in such case the grantee takes subject to the easement, and the existence of the easement is not an incumbrance on the premises granted.</p> <p>Nor does it make any difference, whether the mill and water privilege are reserved exclusively to the grantor, or to him and his co-tenant of the mili and water privilege.</p>

<p>Probate appeal. Nathaniel Dorr was appointed sole executor of the last will of Susannah Lambert, and having proceeded in the discharge of his duties as executor, and there being a surplus to be disposed of, he presented a petition to the judge of probate, representing that by the will he was appointed trustee of certain personal estate, of the value of about 7000 dollars, bequeathed to him in trust for Susan Dorr and three others, daughters of the testatrix, and such of their children as shall be living at their decease, and the issue of such children as shall have deceased in the lifetime of their respective mothers, and that he had accepted the trust and was ready to give bond for the faithful execution thereof; and he therefore prayed that he might be duly commissioned to discharge the same.</p> <p>The provision in the will relied on in support of the peti tion, was as follows : —</p> <p>tc I give &c. one quarter part of all my estate, real, personal and mixed, to my daughter Susan Dorr, wife of Nathaniel Dorr, to have and to hold the same to her for and during her natural life, and at her decease, to go to such of the children of my said daughter Susan, now born or to be born, who shall he living at the time of her decease, to have and to hold the same to them, their heirs and assigns forever ; and the legal representatives of any child of my said daughter, who may have deceased, to be entitled to the same share as his or her parent would have been, if then living. And whereas it may be necessary for the interest and advancement of my daughter Susan’s children, or some of them, that the part of the real estate hereby given them should be sold, I do therefore hereby authorize my executor to grant, sell and convey the same or any part thereof &c., and the proceeds of such sales shall be appropriated by my executor according to the intent of this my will, and shall be secured by such bonds as the judge of probate for the county of Norfolk shall require.”</p> <p>A devise precisely similar was made to each of the other three daughters and their issue.</p> <p>The judge of probate determined that the petitioner was not, by the will, appointed trustee in the manner and for the purposes set forth in his petition, and ordered that the petition be dismissed. From this decree the petitioner appealed.</p>

<p>Probate appeal. Susannah Lambert devised to her four daughters as follows, mutatis mutandis :—“ 1 give, grant, devise and bequeath one quarter part of all my estate, real, personal and mixed, to my beloved daughter, Susan Dorr, wife of Nathaniel Dorr, to have and to hold the same to her for and during her natural life, and at her decease to go to such of the children of my said daughter Susan, now bom or to be born, who shall be living at the time of her decease, to have and to hold to them, their heirs and assigns forever; ana the legal representatives of any child of my said daughter, who may have deceased, to be entitled to the same share as his or her parent would have been, if then living.”</p> <p>Two of the daughters, namely Susan Dorr and Harriet Blanchard, with their husbands, and the children of Lucy Fellowes, a deceased daughter, presented a petition to the judge of probate to have their shares of the real estate set off to them in severalty. Whereupon the judge of probate decreed that the real estate should be divided among the devisees in the proportion of fourth parts, and their respective portions assigned to them and their respective children accordingly ; and commissioners were appointed to make the partition.</p> <p>From this decree Peter Wainwright junior and Charlotte his wife (one of the four daughters of the testatrix) and their child appealed, because the decree orders partition, not only of the life estate of each daughter, but also of the remainder after the expiration of such estate, so that a remainder of one certain, distinct, divided fourth part of the estate is to go to the children of each daughter who shall survive her, and to the representatives of any child who shall decease before its mother.</p>

Debt on a bail-bond, taken on mesne process, in a civil action triable before a justice of the peace. The defendant filed a plea, to which the plaintiff demurred ; but the question upon which the case was determined, namely, whether an action of debt will lie on a bail-bond, arose upon the sufficiency of the declaration.

Each of these actions was indebitatus assumpsit on an account annexed to the writ, for work and labor in removing and treading down the snow in the highways in Brookline ; and in each the defendants pleaded the general issue. Both actions were tried in the Court of Common Pleas before Williams J. In the action of Loker it was in evidence, that he was a surveyor of highways for the first south district in the town of Brookline, for the year 1830.

Trespass for an assault and battery and false imprisonment. ' At the trial in the Court of Common Pleas, before Wilnams J., it appeared that the defendants were the assessors of the town of Walpole for the year 1831, and that the town was accustomed to transact its parochial business in town meetings.

<p>In an indictment on St. 1786, c. 68, § 1, it is sufficient to set forth, in the general words of the statute, that the defendant u presumed to be and was a common seller of wine &c. by retail &c., not being first duly licensed ” &c., without specifying particular instances of selling.</p> <p>An indictment on St. 1786, c. 68, charged that E. P., of Braintree, in the county of Norfolk, on a day named and on divers other days between that day and another day named, u at Braintree aforesaid, did presume to be and was a common seller of wine, beer, ale, cider, brandy, rum and other strong liquors by retail, in less quantities than twenty-eight gallons, and that delivered and carried away all at one time, and did at said Weymouth” (Weymouth not being mentioned before) u during all the time between the days aforesaid, commonly and habitually sell to divers persons to the Jurors unknown, wine fyc. by retail, in less quantities than twenty-eight gallons, and that delivered and carried away all at one time, he the said E. P. not being first duly licensed therefor,” &c. It was held that the allegation in Italics might be rejected as surplusage, and that the pdictment without it was sufficient.</p>

Action of slander. The declaration contained three counts. The first alleges, that the defendant uttered the words, “ she is a whore and unfit to keep school.” In the second the words are, “ she is a bitch and whore right from the hill in Boston.” The third alleges, “ that the defendant charged the plaintiff with having been guilty of the crimes of fornication and adultery.” The cause was tried before Morton J., upon the general issue, and the jury returned a verdict for the…

This was an action of debt upon a bond, given by the defendants, Nathan Webster and John Varnum, for the faithful performance of their duties as executors of the will of David Webster. The action was brought in tie name of the judge of probate, for the benefit of John March and others, named in the will as trustees. Upon a case stated it appeared, that the testator made his will on July 12, 1827, and that it was proved on November 4, 1828.

<p>Assumpsit for services rendered and money paid by the plaintiff as surveyor of highways in Newbury, over and above the sum raised by the defendants for repairs of highways. Trial before Putnam J.</p> <p>The claim was for 0 77*74, and at the Court of Common P eas the sum of 012 was brought into court, under the common rule, and taken out by the plaintiff. The plaintiff recovered 0 5 beyond the sum brought in, and thereupon he appealed ; and in this Court he recovered 072-74.</p> <p>The plaintiff moved for a certificate for full costs ; to which the defendants objected, because at the trial in the Common Pleas two of the selectmen of Newbury were examined as witnesses, who were rejected in this Court, and the Court here have not the means of judging whether there was or was not reason for appealing. The parties agreed that the whole Court should decide whether, under the statute, a certificate ought or ought not to be granted.</p> <p>At the trial in this Court the defendants offered the three selectmen as witnesses. The plaintiff objected on the ground of interest, arising as follows. The town, at a legal meeting, voted not to employ any agent to defend the action ; and the selectmen employed the counsel ; and they resolved to continue to do so, and upon their own responsibility to defend the suit, notwithstanding the- vote of the town to the contrary. These witnesses were rejected.</p> <p>There was no evidence that the plaintiff made any application to the selectmen before the work was done and the expenditures made ; but it was proved that they afterwards promised to pay the plaintiff; and it was shown that the work and expenditures were reasonable and necessary and upon a sudden emergency. The jury were instructed, that the subsequent ratification and promise were equivalent to a previous consent of the selectmen.</p>

Debt on the administration bond of Clement Starr, as administrator, with the will annexed, of John Brown. The bond was dated June 26, 1827. The action was brought against the administrator and his sureties in the bond, for the benefit of legatees. The bond was adjudged to be forfeited and the parties were heard in chancery. By the report of an auditor it appeared, that the testator died and the will was proved in June 1827.

<p>Writ of dower, counting 1. on a demand of dower upon William Graves ; 2. on a demand of dower upon the tenant.</p> <p>The parties agreed, that Thomas Leavitt, being seised in fee of the premises, conveyed the same to Samuel F. Leavitt on April 20, 1818, and died in March 1830, his wife Mary Leavitt surviving. At April term 1831 of this Court, Mary Leavitt recovered judgment for her dower in the premises, against the tenant, and on May 11, 1831, she conveyed to him her right of dower, the same not having been set out to her.</p> <p>On April 3, 1819, Samuel F. Leavitt conveyed the premises in fee and in mortgage to one Withington, his wife Sophia W. Leavitt, the demandant, not being party to the conveyance. In July 1819, Withington assigned the mortgage to one Wildes, and Wildes to one Goddard.</p> <p>On April 20, 1821, Samuel F. Leavitt made anew deed to Goddard, to correct an erroneous description of one of the parcels of land conveyed in the deed to Withington, "n which deed to Goddard the demandant joined, in the following words : — “In witness whereof I the said Samuel F. Leavitt, with Sophia my wife, in token of her assent thereto, have hereunto set our hands and seals.”</p> <p>Goddard afterwards conveyed to one Graves, and Graves to the tenant.</p> <p>Samuel F. Leavitt died while Graves was seised in fee of the premises.</p> <p>On June 17, 1830, the demandant demanded of the tenant, who was seised in fee of the premises, to have her dower therein assigned to her ; and on July 28, 1831, she in like manner demanded of Graves to have her dower assigned to her.</p>

<p>Replevin for seven milch cows, taken on June 19, 1830. The defendant avows the taking, alleging that he was a field-driver of the town of Newbury, and that the cattle were going at large in the highway in Newbury, without a keeper, contrary to the statute and to a vote of the town.</p> <p>The plaintiff pleads in bar to the avowry, 1. that the cattle, when taken, were not going at large in Newbury without a keeper. Upon this plea an issue to the country was joined.</p> <p>2. That the defendant, well knowing the cows to be the milch cows of the plaintiff, took them at about 6 o’clock in the morning and drove them about three miles to a public pound, and there detained them till 5 o’clock in the afternoon, when they were replevied in this action ; and the plaintiff avers that it was the duty of the defendant, if the cows were at large, to have restrained them in some place near where they were taken, which was near the defendant’s place of residence, as most .convenient for relieving them with suitable meat and water ; and that by reason of the driving the cows and the heat of the weather they greatly shrunk in their milk and were much injured, whereby the defendant became a trespasser from the beginning. To this plea there was a general demurrer.</p> <p>3. That after the defendant took the cows, he drove them about three miles to a public pound in Newbury and there detained them, being milch cows, from about 7 o’clock in the morning till 5 o’clock in the afternoon, and during all that time did not relieve them, nor cause them to be relieved, with any meat and water of any kind ; whereby they became greatly injured by shrinking of their milk and in other respects, whereby the defendant became a trespasser from the beginning. To this plea there was a general demurrer.</p>

<p>Assumpsit for money had and received. Trial before Putnam J., upon the general issue.</p> <p>It was proved, that on Saturday, July 18, 1829, in the forenoon, the wood, lumber and other personal property of Zenas Stoddard, wood-wharfinger, on the wharf in his occupation, were attached by the defendant Dutch, a deputy sheriff, on a writ of one Buffum against Stoddard, and that Dutch appointed one Nesmith to be the keeper of the property attached. Nesmith was directed by the officer to keep the attachment as private as he could, but he was- to remain near the property, so that if another officer should come to attach it, he might give him notice of the attachment already made. After 12 o’clock on Saturday night, Nesmith shut the large gate of the wharf, and locked it and took the key, and shut the small gate, (which had no lock, but was blocked up with posts on each side,) and went home. Most.of the property was on the wharf, but there was some large timber outside the fence. Nesmith, without permission, suffered two or three sticks of timber to go to customers, to oblige them, thinking that if there should be any difficulty about these sticks he would pay for them himself. Nesmith went again to the wharf on Sunday, after dinner. At about half past 11 o’clock on Sunday night, Devereux (one of the plaintiffs) and Stoddard came to the wharf, and Devereux told Nesmith that Stoddard had assigned all the property to the plaintiffs ; and he showed Nesmith the deed of assignment, (which was foundel on a valid consideration,) and requested him to keep the property for the plaintiffs, subject to the attachment of Buffum, which Devereux agreed to remove by satisfying Buffum’s demand. About 15 minutes before 12 o’clock, Stoddard delivered the property to Devereux, by putting a stick of the wood into his hands as for the whole, and Devereux then delivered it in the same way to Nesmith, to keep for the plaintiffs. Very soon afterwards Brown, a deputy sheriff, and one Rideout came to the wharf and informed Nesmith that the property would be attached immediately after 12, at the suit of Rideout; and Nesmith told them that it had been assigned to the plaintiffs, and that possession had been taken. Immediately after 12 o’clock Stoddard again delivered the property to Devereux, and Devereux again delivered it to Nesmith, in the form above mentioned, to keep for the plaintiffs, subject to Buffum’s attachment; and notifications of the assignment were immediately posted up. Dutch gave Nesmith no authority to delivér up the possession to any person. He authorized Nesmith to go home on Sunday and leave the property as it was left on that day. The wharf was left as sáfe as Stoddard used to leave it on Sundays. It was accessible directly from the water. Immediately after 12 o’clock on Sunday night Dutch made an attachment of the property on two writs, one in favor of Rideout, the other in favor of one Webster, by entering the attachment on the writs, but without an actual taking of the property into possession anew. At that time he had received no information of the assignment to the plaintiffs. By consent of the parties the property was put into the hands of Pickering Dodge, to be sold and accounted for. Buffum’s demand was paid out of the proceeds, and a balance remained, which was paid over to Dutch, and to recover which this action was brought. This balance was demanded of him by the plaintiffs before the commencement of the action.</p> <p>The jury found that Nesmith and the plaintiffs, at the time of the delivery of the property, did not agree that the first attachment should then be dissolved and extinguished, upon the personal promise of Devereux, but that they did agree that the plaintiffs should take the property subject to that attachment.</p> <p>Judgment was by consent entered up for the plaintiffs,subject to the opinion of the whole Court upon the facts in the case.</p>

<p>Bill in equity, brought by a person non compos mentis, by her guardian. The bill alleges that John Andrews, of Marblehead, on March 28, 1801, made his last will, in which he devised to his grandson, John Andrews junior, certain real estate in Marblehead, and charged the same with a certain legacy to Eunice Andrews, the plaintiff, of 600 dollars, to be paid to her when she should arrive at the age of twenty-one years or at her marriage, and also with an annuity of 50 dollars, to be paid to her every year, commencing at the death of the testator, until she should arrive at the age of twenty-one years oi be married, whichever should first happen ; that on July 1, 1803, the testator died ; that on the same day John Andrews junior entered upon the estate so devised ; that the testator left estate sufficient to pay all his debts and legacies ; that the will was proved on August 1, 1803, and the executor therein named accepted the trust and took the estate into his hands, and assented to the legacy and annuity to the plaintiff; that the plaintiff became of age on October 1, 1804, on which day there were due to her the legacy of 600 dollars, and on account of the annuity the sum of 146 dollars ; that on March 5, 1807, John Andrews junior conveyed the real estate to Jesse Blanchard ; that Blanchard, on January 15, 1827, conveyed it to William Elliot ;• that Elliot, on April 5, 1828, conveyed it to Samuel Bradstreet; that Bradstreet, on April 20, 1829, conveyed it to the same Blanchard ; that Blanchard conveyed it, on July 21, 1829, to Benjamin Cheever, in mortgage, and on August 5, 1830, to Benjamin Porter and Joseph W. Green, in mortgage ; that in all these conveyances the land passed charged with the legacy and annuity to the plaintiff; that on November 23, 1830, Blanchard died intestate, leaving some of the defendants his heirs at law; that on December 7, 1830, administration of the estate of Blanchard was granted to Sparhawk, one of the defendants ; and that Sparhawk and the heirs of Blanchard have entered upon the estate, charged as above mentioned, and are now in possession thereof, by means whereof they have become trustees of the plaintiff and liable for the payment of the sums of money before men tioned and interest thereon, and bound to account for the same. The bill then alleges a demand by the plaintiff’s guardian upon Blanchard, and upon his administrator and heirs, and a refusal by them to pay those sums of money ; and it prays that they may be held to make answer, and to pay over those sums to the plaintiff, with interest.</p> <p>Sparhawk and the heirs of Blanchard, in their answer, state that John Andrews senior, by his will and codicil, which they annex to their answer, constituted John Andrews junior sole executor, and devised to him the real estate in question, together with other real and personal estate, charging him as executor with the payment thereout of all the debts of the testator, and all legacies and annuities bequeathed by the will; that John Andrews junior became seised and possessed of the real and personal estate, subject, as executor, to the duty of v paying thereout the debts and legacies ; that on August 1, 1803, having obtained probate of the will and codicil, he took upon himself the execution thereof, and on February 2, 1807, gave bonds for the faithful performance of his duty as executor ; that on March 5, 1807, Blanchard purchased of him the real estate in question, and paid him therefor the sum of 4000 dollars, which was the full value of the estate ; that Blanchard, at the time oí his purchase, had not, and never after had, any notice or reason to suspect that the legacy and annuity to the plaintiff were unpaid, or that the money which he paid to, the executor was not duly applied to the payment of the debts and legacies which by the will the executor was directed to pay ; that the executor sold the estate to Blanchard in execution of the will, for the purpose of raising money to reimburse payments already made, or to make payment of the debts and legacies ; that upon such conveyance to Blanchard the estate in question ceased to be chargeable for the debts and legacies, being fully administered ; that Blanchard was informed and believed, and the defendants are informed and believe, that the legacy and annuity to the plaintiff were paid on or about March 5, 1807 ; that on that day Blanchard took possession of the real estate under the deed to him, as the owner thereof in fee simple, discharged of any trust or liability whatsoever, and continued in possession until his death on November 23, 1830, and that in the faith that his title was complete he expended large sums of money in improving the estate, and executed the several conveyances thereof in the bill mentioned, containing covenants of title ; that at the time of the testator’s decease the plaintiff was compos mentis and capable of taking care of her property, and that she continued so until about January 1, 1811 ; and that she then became chargeable as a pauper to the inhabitants of Marblehead, and from time to time ever since has been supported by them as such ; that the plaintiff, from the time of the conveyance of the estate to Blanchard until she became- non compos mentis, and the inhabitants of Marblehead from January 1, 1811, to the day of exhibiting this bill, had full knowledge of the conveyance of the estate to Blanchard for a valuable consideration, and of the expenditures which he from time to time made thereon, and of the conveyances by him executed, and yet, from, the date of the conveyance to him until about January 1, 1828, he had no notice that the legacy and annuity were unpaid ; and that the bill is exhibited, as the defendants believe, for the benefit of the inhabitants of Marblehead. The defendants admit the demand and refusal alleged in the bill, and they say that the legacies to the plaintiff are fully paid, and that she has also lost all right to remedy therefor in law and equity, if she ever had any cause ol action ; that the same, if any, accrued more than six years, and more than twenty years, before the exhibiting of this bill, and is barred by the statute of limitations ; and that if the plaintiff has any right or remedy or cause of suit, this Court is not competent to take jurisdiction thereof upon this bill as a court of equity ; and that the defendants are not, and never were, trustees of the plaintiff, or of any one, on account of those legacies, nor liable therefor in any form.</p> <p>The plaintiff filed a general replication, and at the hearing, depositions were read on each side.</p> <p>In the will are the following provisions : — “To the same John Andrews junior, my grandson, I give, devise and bequeath all my present homestead, fish fence land, pasture land and' farm situate &c., with all the warehouses &c. thereon, and the utensils &c., and all my farming cattle and stock, to him, his heirs and assigns forever, the said homestead, lands and farm to be subject and liable as follows, that is to say, to the payment of all my debts, funeral expenses and all other charges and expenses which shall arise in the settlement of my estate and affairs ; also to the annuities and legacies hereinafter bequeathed to my other grandchildren.”—- “ To each of my other grandchildren, namely, Eunice Andrews &c., minors, in aid of their education and maintenance severally and respectively, I give and bequeath the sum of fifty dollars, to be paid for the use of each of them annually, commencing from my decease ; of the said Eunice until her marriage or full age of twenty-one years” &c. — “To each of my said grandchildren, Eunice &c., I give and bequeath the sum of six hundred dollars ; one such sum to be paid to the said Eunice at her marriage or at her full age, whichever shall first happen.” — “And I hereby appoint the said John Andrews junior, my grandson, sole executor of this my last will and testament.”</p>

Action on the case for slander. Plea, the general issue. At the trial, the plaintiff produced witnesses to prove the words spoken.

<p>A testator devised certain personal property to his wife (which under the circumstances of his estate was a small provision for her) on condition that she should relinquish her dower and also should “ educate and bring up M. L. R. (a granddaughter of the testator and of a former wife,) until she should arrive at the age of eighteen years or be married.” The granddaughter lost both parents before she was two • years of age, and she was thereupon taken into the family of the testator and educated and maintained by him like a daughter. The wife died a few days after the testator and during the minority of the granddaughter. The testator also devised real and personal property to the granddaughter sufficient to maintain her during her minority, and which might be applied to that purpose. It was held, that by the terms of the will, the obligation imposed on the testator's widow was one of parental persona! care towards the granddaughter,.which died with the widow, and was not a charge on the legacy to her in the hands of her administrator 5 and that all the circumstances of the case strengthened this construction.</p>

<p>Bill in equity to redeem.. The plaintiff alleges, that on February 22, 1827, her husband Isaac Bodwell, being seised of the land, conveyed the same to Daniel Merrill as security for a loan of $ 450, and that Merrill at the same time executed and delivered to Bodwell a bond of even date with the deed, for the reconveyance of the land upon payment of the money within three years ; that Bodwell paid two years’ interest on the money lent; that he died in October 1830, and the plaintiff was appointed administrator of his estate ; that in March 1831, Merrill conveyed the land to the defendant, he well knowing the contents of the bond of defeasance ; that the defendant, after the death of Bodwell, without the leave and against the will of the plaintiff, obtained the bond from one Carlton, the agent of Bodwell, and had refused to deliver it to the plaintiff; and that on September 15, 1831, the plaintiff requested the defendant to state an account of the sum due on the mortgage.</p> <p>The defendant, in his answer, claims the land as his absolute property. He states that Merrill, on March 9, 1831, by deed of release and quitclaim, conveyed the land to him for the consideration of $¡ 525 ; and he denies that he took the bond from Carlton, and that he knew the contents of it at the time when Merrill made the conveyance to him.</p> <p>The plaintiff, in her replication, avers that on March 9, 1831, before and at the time of the execution of the deed to the defendant, Merrill told him all the facts and circumstances attending the loan and the execution of the deed to Merrill and of the bond, which apprized the defendant that the transaction was a mortgage.</p> <p>It appeared in evidence, that Merrill lent Bodwell the sum $450 ; that Bodwell’s deed and Merrill’s bond for reconveyance were both drawn by Joseph W. Carlton ; that they were dated and executed on the same day ; that Merrill took the deed, and that the bond was left in Carlton’s hands, by the agreement of the parties ; that if Bodwell should produce to Carlton evidence that he had paid the sum named, with interest annually, any time within three years, he was to give the bond to Bodwell, but that if the money should not be paid within three years, he was to give the bond to Merrill; that no evidence of payment was produced to Carlton, and so, according to the agreement, he delivered the bond to Merrill; and that no note or bond for the money lent was given by Bodwell to Merrill.</p>

<p>Assumpsit brought by the plaintiff as the executor of John Stickney against the defendants as the executors of.William Noyes, upon the following note : — “ Newburyport, May 2, 1811. I promise to pay to John Stickney or order the sum of one thousand dollars on demand ; it being for moneys received from the estate of Capt. Enoch Stickney ; this note not to draw interest during my life. William Noyes.” Pleas, the general issue, and actio non accrevit infra sex annos.</p> <p>On the trial, before Shaio C. J., the execution of the note was admitted, and it was also admitted that Noyes died a few weeks before the commencement of this action.</p> <p>On the part of the defendants it was contended, that the statute of limitations began to run at the date of the note, and of course, that it wras long since barred. The plaintiff contended that the statute did not begin to run till the death of the promisor, and so, that the note was not barred.</p> <p>A verdict was taken for the plaintiff by consent; but if tne Court should be of opinion that the action was barred by the statute of limitations, the verdict on the second issue was to be altered and to stand as a verdict for the defendants.</p>

<p>Writ of entry to recover certain land situate in Newburyport and Newbury. The demandants count upon their own seisin and a disseisin by the tenant; who pleads that he did not disseise them. The cause was tried before Shaw C. J.</p> <p>The demandants claimed title in virtue of a judgment, execution, and levy on the land as the property of Jonathan Gage. The tenant claimed title under a prior conveyance from Gage.</p> <p>The tenant gave in evidence a deed to himself from Gage, dated August 2, 1830, embracing the land in question. The demandants objected that it was not made upon a good and adequate consideration, and was not valid as against creditors.</p> <p>It was proved on the part of the tenant, that on May 15, 1798, prior to the marriage of Gage with his late wife, then Mary Perkins, an indenture was entered into between Gage and Mary Perkins and Nicholas Johnson, as trustee, in which, after a recital that a marriage was contemplated and that Mary, in her own right, had money and other property to the amount of upwards of 8000 dollars, which would become the property of Gage upon the marriage, Gage covenanted with her and with Johnson, that Mary might, during the marriage, make an instrument in the nature of a testament, and might therein bequeath any sum of money or personal effects, not exceeding in the whole the value of 8000 dollars, and that he would pay over to her executor, in six months after her dsath, such sum as she should appoint, not exceeding 8000 dollars.</p> <p>The marriage took place and the wife made an instrument, duly executed, purporting to be her last will and testament, and therein bequeathed to the tenant and his heirs, all u my estate, real and personal &c., meaning and intending particularly to include herein all the estate and property reserved and secured, to me, at my own disposal, by certain articles of agreement” &c., (referring to the indenture above mentioned,) and she appointed the tenant sole executor of the will. This instrument was duly proved and allowed in the probate court.</p> <p>The deed first above mentioned was given in part satisfaction and discharge of the money supposed to be due from Gage to the tenant by virtue of the marriage settlement and will; and the land thereby conveyed was estimated and appraised at its just value. At the time of the negotiation between the parties, upon which the land was so conveyed, it was considered by them doubtful, whether, after the payment of the 8000 dollars, Gage had sufficient property left to pay all his other debts ; and some other property was conveyed by Gage to the tenant, at or about the same time, to satisfy or secure other existing demands. At the time of the conveyance in controversy, six months had not fully elapsed from the death of Mary Gage. The debt upon which the demandants recovered their judgment and execution, was a subsisting demand at the time of the conveyance by Jonathan Gage to the tenant.</p> <p>The demandants contended, that the marriage contract and will did not create a debt, the payment and discharge of which would constitute a good and adequate consideration for the conveyance to the tenant, so as to render it valid as against creditors ;</p>

<p>An outstanding liability as surety for another, together with a promise, express or implied, by such surety to the principal, that he will pay the debt and so indemnify the principal, is a valid consideration for a promissory note from the principal to such surety, payable on demand.</p> <p>A promissory note for a gross sum, payable on demand, given by the maker of several notes to the indorser, upon the promise of the indorser to pay the notes and inoemnify the maker, will enable the indorser to commence an action and attach the maker’s property before the indorser has paid any of the original notes and before they have become due, but he will not be entitled to recover damages beyond the amount which he shall have paid before the rendition of the judgment»</p>

<p>In the act incorporating the town of Hamilton the boundary line is described as u run ning by Ipswich river to a wall &c., then by said wall ” &c. The wall was nearly at right angles to the river and from the end of it was a wooden fence about two .rods, and beyond that the bank was so steep that a fence was unnecessary. It was held that the boundary line did not cross the river diagonally to the end of the wall, but that it followed the thread of the river until it came to the point at which e the wall, if protracted, would intersect the thread of the river, and thence, making an angle, it took the line of the wall.</p> <p>Where a road is laid out in two towns, and, in consequence of their neglecting to make it, the county commissioners cause it to be made and apportion the expense upon the towns, it is not only competent but necessary that the commissioners should ascertain and determine the boundary line between the towns, as incidental to a just and legal apportionment.</p> <p>The provision in Si. 1827, c. 77, § 7, that if the towns whose duty it is to make a road, shall not complete it in the time and manner prescribed by the commissioners, the commissioners shall cause it to be completed and .it the next regular meeting shall order the expenses to be paid out of the county treasury, and shall order notice thereof to be given to the towns so delinquent and of the part thereof which each town is to pay, and if not paid, shall issue a warrant of distress, is only directory. If therefore these proceedings cannot be had at the next regular meeting of the commissioners, or if they are quashed for irregularity, it is competent to the commissioners to institute them at a subsequent period.</p>

<p>Debt on an administrator’s bond, dated in 1806, signed by Daniel B. Hussey, the administrator, as principal, and by the defendant and another as sureties. The defendant war the only surviving obligor. He pleaded non est factum, and five other pleas ; on all of which issue was joined.</p> <p>At the trial the defendant offered in evidence, the depositions of Josiah Hussey, Susan Gelston (late the widow of the administrator) and others, taken in 1830 before Barker Burnell esquire. The plaintiff objected to the depositions, because Burnell was not an impartial or suitable person to ike depositions in this cause, he having acted as the friend, agent and attorney of the defendant in defending the suit, and it appearing from the certificate of Walter Folger, the magis trate appointed under an order of this Court at November term 1829 to take depositions on behalf of the plaintiff, that Burnell, a day or two before he took the depositions in question, attended on two several days with the defendant and Charles Bunker as the counsel of the defendant, at the taking of the depositions by Folger. Burnell, being called as a witness by the defendant, testified that he was a friend of the defendant,1 and that when the depositions were to be taken before Folger, the defendant called on him (Burnell) ; that he (Burnell) advised the defendant to ask the assistance of Bunker ; that he and the defendant and Bunker were present during the taking of several depositions by Folger ; that he made to the defendant and perhaps to Bunker, such suggestions in the case as he deemed would conduce to the ascertainment of the truth ; that the defendant, after the arrival of Coffin, said that he should want him (Burnell) to take some depositions ; that he (Burnell) then told the defendant that he (Burnell) desired to avoid any conversation in relation to the case, which would be unfavorable to a proper discharge of his duties ; and that thereafter he (Burnell) acted as a magistrate impartially between the parties, and knew nothing of the depositions, except as a magistrate ; that as the friend of the defendant he had felt it to be his duty to aid him all in his power, by his advice &c., in defending himself against this suit ; and as to any bias or partiality in taking the depositions, that the party for whose use this suit was brought, had himself agreed to a commission from the court, authorizing him (Burnell) to take depositions in this case, and when the taking was concluded declared himself satisfied and that he had perceived no bias and should not have even known, from any proceeding of his (Burnell’s,) that there was any predilection for the defendant. The objection of the plaintiff was overruled.</p> <p>The plaintiff then objected to the deposition of Susan Gelston, because she could not be called to testify to facts which occurred in the lifetime of her former husband, the administrator, since he, if alive, could not be a witness This objection was overruled.</p> <p>The jury returned a verdict for the defendant on all the issues except the fourth and the sixth.</p>

Assumpsit for money alleged to have been received by the defendant to the plaintiffs’ use, being freight, passage money and other earnings of the brig Smyrna. At the trial, before Slum C. J., it appeared that the plaintiffs were the owners of the brig ; and that the defendant was her supercargo on a voyage from Boston to Buenos Ayres, thence to Valparaiso, Lima, the Sandwich Islands, Calcutta, and back to Boston.

<p>In an action of the case the declaration alleged, that the defendants conspired togetner to put clandestinely on board the plaintiffs7 vessel a quantity of tobacco, for the purpose of smuggling in a foreign country, that it was secretly put on board in pursuance of the conspiracy and was carried in the vessel from Boston to Cronstadt in Russia, that the laws of Russia required that all the goods on board should be entered at the custom-house, that the defendants fraudulently neglected to enter the tobacco and concealed from the master of the vessel the fact that it was on board, that the fraud was discovered by the custom-house officers of Cronstadt, and that in consequence thereof a fine was imposed upon the master, and the vessel was not allowed to clear out or sail from Cronstadt until the fine was paid, and so was detained a long time, and the plaintiffs in consequence thereof were put to great expense, in order to procure the liberation of the vessel, and that they suffered additional loss bjr the detention of the vessel. Upon a motion in arrest of judgment, after a verdict for the plaintiffs, it was held, (taking into view the operation of a verdict in curing defects in a declaration,) that although an intended fraud upon the revenue laws of Russia would give the plaintiffs no cause of action, yet that it was properly laid by way of inducement, to show how the fraud .and conspiracy-tended to injure and did in fact injure the plaintiffs-</p> <p>That the ground on which the fine was imposed, was stated with sufficient precision</p> <p>That there was a sufficient allegation of an actual violation of the laws of Russia: —</p> <p>That by the custom-house officers of Cronstadt must be understood officers having competent authority to enforce the laws of Russia, and exercising de jure or de facto that authority:—</p> <p>That although it was not distinctly averred, that by the acts of the defendants the master became liable to a penalty and the vessel to seizure, it must be presumed to have so appeared in proof, since otherwise there was no connexion between the fraud of the defendants and the punishment of the master That the declaration having alleged as consequences of the fraud and of the violation of the laws of Russia, that the fine wa* imposed, that the vessel was not allowed to clear out or sail until the fine was paid, that she was detained a long lime, and that the plaintiffs were put to great expense to procure her liberation, it must be presumed that these consequences were proved, and that the fine was paid, not voluntarily, but under legal compulsion, and rather as a penalty upon the plaintiffs, through their property, than as a personal penalty upon the master And that the statement of the law of Russia in general terms, was sufficient.</p> <p>In an action of tort, after a verdict for the plaintiff, it will be presumed that the damages were assessed according to the case proved 5 and if circumstances are alleged by way of aggravation, which are not proper for consideration, it will be presumed that no damages were given on such ground.</p>

<p>The owner of a tract of land in Boston conveyed a portion of it, describing such portion by metes and bounds \ subsequently, he executed another deed, conveying “ all the right and title to the land I have in Boston,?? to a second grantee, which was registered before the prior deed. It was held, that the portion of land described in the prior deed did not pass to the second grantee, as coming within the general description of the estate conveyed in the subsequent deed.</p> <p>In an action between parties claiming respectively under a prior deed containing covenants of seisin and warranty, and a subsequent deed which was registered first, not containing any covenant, it was held, that the grantor, whose original title was good and indefeasible, was a competent witness to prove that the subsequent gran tee had notice of the prior conveyance.</p> <p>If a grantee takes with notice of a prior unregistered deed, and conveys to a second .grantee with like notice, the second grantee, as well as the first, is precluded from setting up the subsequent deed against the prior unregistered deed.</p>

<p>íf a promissory note is made payablet{ at either of the banks in Boston,” where there is a large number of banks, it is not to be deemed payable at a place certain 5 and it seems therefore that the holdér is bound, in such case, to give the promisor notice where it is to be found.</p> <p>Where the holder of a promissory note made payable at one of several banks designated, places it in one of those banks, either by a discount or for the purpose of. collection, the promisor becomes liable to pay at such bank, and the holder is not bound to present it for payment at any other place.</p> <p>in an action on a note payable at a bank, against the indorser, an averment of a presentment and demand of payment on the promisor, is supported by evidence, that the promisor had notice that the note was at the bank on the day it became due, ready to be delivered up on payment.</p> <p>fn such action, it appeared that the messenger of the bank, whose duty it was to give notices of the non-payment of notes, to the promisors and indorsers, and to enter their names and the places to which notices were sent, in a book kept for that purpose, had absconded and left the commonwealth, and that after diligent inquiries had been made for the purpose, it was found impossible to procure his testimony. It was held, that the book of the messenger was competent evidence to prove notice to the indorser.</p> <p>The entry in the messenger’s book stated the amount of the note, the day when it became due, and the names of the promisor and indorser, with a mark against them indicating, as was testified by the cashier, that they had been notified. It was held, that this evidence was sufficient to authorize the jury to infer the fact of notice to the indorser.</p> <p>in the same action the jury were instructed, that upon the note in question it was not necessary for the plaintiffs to prove a demand upon the maker. It was held, that no valid exception could be taken to this instruction 3 as it must be understood to mean, that no other demand was necessary, than that of having the note at the bank ready to be delivered up on payment, of which the maker had previously had notice.</p>

<p>Where a declaration contains several counts for the same cause of action, and the defendant puts in a plea to the whole declaration, the plaintiff may file several replications, one, to so much of the plea as relates to one part, and another, to so much of the plea as relates to another part of the declaration.</p> <p>If on the face of a declaration any one of the counts appears to be superfluous, the court will, on motion, order it to be struck out 3 but where several counts for the same cause of action are introduced, in which there is a material difference in the forms of stating the case, or the demands are averred to be different, for the purpose of enabling the plaintiff to avail himself of the proof of different facts material to the support of the action, the court will not interfere.</p>

<p>Writ of entry to recover certain real estate situate at Wheeler’s Point, in Boston ; the demandant counting on his own seisin and a disseisin by Benjamin Joy, the ancestor of the tenants. Plea, that Benjamin Joy did not disseise the demandant; and issue thereon. Trial before Shaw C. J.</p> <p>Both parties claimed title under Alfred Curtis ; the demandant, under an attachment and sale of an equity of redemption, at the suit of William Savage, and divers mesne conveyances from Savage to the demandant; the tenants, under a mortgage deed made by Curtis to Charles Thacher, and by him duly assigned to Benjamin Joy. The attachment was made on the 27th of September 1825, and the mortgage, on the 28th of the same September; so that if all the proceedings under the attachment, levy and sale were regular and conformable to the statute, Curtis’s title was thereby devested, by relation, from the time of the attachment, and consequently the demandant had the elder and better title; but if those proceedings could not be supported, the tenants would be entitled to hold under the mortgage.</p> <p>The demandant produced, among other evidence, the execution, dated March 3, 1826, issued upon a judgment of the Court of Common Pleas, in favor of Savage against Curtis, and the returns thereon, purporting to be made by Nathaniel Freeman, deputy sheriff. The execution and one of the returns, dated April 1, 1826, relating to land extended upon, were recorded in the registry of deeds June 20, 1826. In the list of fees annexed to this return were charges for posting, advertising in newspapers, auctioneer’s commission, and deed. The return relating to the levy on the equity of redemption in question, was dated April 17, 1826. The deed from Freeman to Savage, of the equity of redemption, dated April 17, 1826, was also produced. This deed recites that Freeman seized the equity of redemption on the seventeenth day of March, whereas the return states the seizure to have been made on the seventh. The deed also recites that the sale of the equity of redemption was advertised in the Boston Daily Advertiser ; whereas the return states it to have been advertised in the Boston Commercial Gazette. The sale is stated, both in the deed and in the return, to have been made on the 7th of April. In the deed Freeman covenants that he has complied with all the rules of law for making sale of rights in equity of redeeming real estate taken in execution.</p> <p>The advertisement of the sale was inserted in the Boston Daily Advertiser of March 20, 1826, but in no other number of that paper. It was found in the Boston Commercial Gazette of Thursday the 23d and Thursday the 30th of March, and Thursday the 6th of April.</p> <p>The tenants gave in evidence a certificate of John Stickney, clerk of the judicial courts, having the custody of the records and files of the Court of Common Pleas, that on the 17th of September 1827 the execution above mentioned was not on file, and that on the 18th it was put on file.</p> <p>The tenants then offered evidence that the return, so far as it relates to the sale of the equity of redemption, purporting to be made by Freeman as deputy sheriff, was not made until after the 23d of February 1827, when he went out of office. The demandant, insisting that the return was not necessary to the validity of his title, objected to the evidence, as tending to falsify and contradict the officer’s return, in a collateral proceeding ; but the objection was overruled and the evidence admitted. It was then agreed, that if it was competent to the tenants in this case, and upon the issue joined, to go into evidence of the fact, this part of the return was in fact made after Freeman had gone out of office, and that it was made without any order or permission of the Court of Common Pleas.</p> <p>A verdict was taken for the demandant by consent, subject to the opinion of the Court upon the questions reserved.</p>

Assumpsit. In the first count the plaintiff alleges, that he and William Payne and others, before and until the 21st of July 1827, when Payne died, were stockholders together in the Wolcott Woollen Manufacturing Company, incorporated February 24, 1820, and that Payne, in consideration of a like promise by the plaintiff, promised the plaintiff to reimburse all sums which the plaintiff might pay towards the debts of the corporation, in proportion to the number of shares then…

<p>Writ of entry sur disseisin, in which the demandant claimed possession of a certain messuage in Boston, which was held by the tenant.</p> <p>Plea, the general issue ; which xvas joined.</p> <p>The parties stated the following facts.</p> <p>.In the year 1828, Cornelius Coolidge, of Boston, was duly taxed for the state, county and city taxes of that year, the sum of $673-16; which was the aggregate of the taxes assessed upon twenty-two distinct parcels of land, including the demanded premises, and upon his personal estate and poll. Each parcel of land was separately valued by the assessors, and the tax was assessed upon such distinct valuation. The sum of $49-70 was assessed upon the demanded premises. In 1829, Coolidge was taxed $676-16, of which the sum of $55-30 was assessed on the demanded premises; in 1830, he was taxed $415-41, of which $38*88 was assessed on the demanded premises; in 1831, his whole tax was $ 194-26, and the demanded- premises were assessed $ 37-92. The annual certificates made by the assessors to the city treasurer and collector do not disclose to him any specific parcels of real estate taxed to any individual ; but they show bow much each person is taxed for the whole of his real estate, how much for his personal estate, and how much for his poll. The books of the assessors, however, always show the valuation of each parcel of land, and the rate per cent, at which the tax is assessed.</p> <p>On November 30, 1832, the city treasurer, having previously complied with the requisitions of the law, caused the demanded premises to be sold by auction, for the purpose of raising the sum of $2006-70, the amount due from Coolidge, at that time, for taxes upon the whole of his real and personal estate, including interest and costs ; and they were purchased by the demandant, who bid this sum, and were conveyed to him by the city treasurer.</p> <p>On May 26, 1827, Coolidge, being owner in fee of the demanded premises, mortgaged them to the tenant, who, on July 1, 1831, entered for breach of the condition, and, at the time of the sale, held them as mortgagee in possession for condition broken. On July 18, 1829, Coolidge conveyed the equity of redemption to assignees for the use of his creditors.</p> <p>The tenant had no notice that the premises were supposed to be liable for any taxes in arrear, except by the advertisement of the sale, which was inserted by the treasurer in certain newspapers printed in Boston ; unless his knowledge was to be presumed from the fact, that the taxes appeared by the books of the assessors to have been assessed on the premises, for the several sums before mentioned.</p> <p>The following questions, among others, were submitted to the Court for their decision :</p> <p>1. Whether the demanded premises were liable in any way for the payment of the sum of $2006-70.</p> <p>2. Whether they were chargeable, if at all, beyond the particular sums assessed upon them specifically.</p> <p>If the Court should be of opinion, that a good title did not pass to the demandant by the sale, judgment was to be entered for the tenant; otherwise, for the demandant.</p>

Assumpsit by the plaintiff as the indorsee against the defendant as the maker of a promissory rote for $ 125. Trial upon the general issue. It appeared in evidence, that one Daniel Rogers junior was in prison on execution at the suit of one Ball, for about $ 1400, and that Ball had agreed to discharge him for $> 125.

<p>Where upon the trial of an action for a libel, the counsel on both sides said that the only question of fact was in regard to the amount of damages, and a verdict was found for the plaintiff it was held that the defendant could not object, as a ground for a new trial, that the plaintiff had not proved that the libel related to himself, as alleged in the innuendoes.</p> <p>On the trial of an action for a libel the defendant cannot give in evidence, in mitigation of damages, a distinct and independent libel on himself, published by the plaintiff.</p> <p>But where the publication by the plaintiff is so recent as to afford a reasonable presumption that the libel by the defendant was published under the influence of the passions excited by it, or where it is explanatory of the meaning of, or of the occasion of writing the libel complained of, it may be given in evidence in mitigation of damages.</p> <p>To render such evidence admissible, it is not necessary that the libel complained of should, on the face of it, refer and profess to be a reply to the libel published by the plaintiff 3 it is sufficient if such reference appears on comparing the publications.</p>

<p>Assumpsit by the indorsees against the makers of a promissory note for 379-74, dated at St. Louis, ’Missouri, July 21, 1830, payable in four months from date, to the order of Belden & Olmstead, and indorsed by Belden & Olmstead, Savage & Bostwiclc, Oliver Hudson, and Johnson & Davenport, in the order in which they are here named. Rundlett and Randolph, the defendants, resided in St. Louis.</p> <p>The defendants pleaded, among other things, that the note was given to Oliver Hudson, partly for goods of Hudson purchased by them at auction, and partly in satisfaction of a precedent debt due from them to Hudson; that on August 14, 1830, William Hill and George K. M‘Gunnegle commenced an action against Hudson in the Circuit Court foi the county of St. Louis, which court had jurisdiction of the cause, for the recovery of the sum of $ 950 due to them upon his promissory note ; that in that action the present defendants were summoned as garnishees, and any debt due from them to Hudson, and all lands, goods, moneys, credits and effects of Hudson in their hands attached ; that Hill and M‘Gunnegle recovered judgment against Hudson for $ 1007-79 and costs of suit; that Rundlett and Randolph disclosed, that they had not in their hands any property of Hudson, and that they were not indebted to him, but that they had given the note in question, and that this note had been indorsed to Meriam and Brigham, who had commenced this action upon it in January 1831, and that this action was still pending ; that upon these disclosures of Rundlett and Randolph, it was adjudged that Hill and M‘Gunnegle recover of them as garnishees, the sum of $ 379-74, on account of this note, and according to the laws of the State of Missouri in such case provided ; that on December 26, 1831, an execution was issued on this judgment and delivered to the sheriff of the county of St. Louis, commanding him, that of the goods and chattels, lands and tenements of Rundlett and Randolph, he cause to be made the sum of $ 379-94, and for want thereof that he take their bodies, that they might be had before the court, on March 4, 1832, at which time the execution was returnable ; all which proceedings appear by the record &c., which judgment still remains in full force and unreversed.</p> <p>Meriam having deceased since this action was commenced, Brigham, the surviving plaintiff, cra-'ed oyer of a copy of the record above mentioned ; and upon oyer it appeared, that several persons, beside Rundlett and Randolph, had been summoned as garnishees; that Brigham, being permitted to interplead, had alleged that a negotiable note given to Hudson by R. L. Keen, J. H. Page and J. S. Keen, three of the persons summoned as garnishees, and which was referred to in their answers, had, before it became due, been negotiated, for its full value, in the course of business, to Meriam and Brigham, who then had no notice, of the suit of Hill and M'Gunnegle ; and that judgment was rendered, that Hill and M‘Gunnegle recover against Ackley, Rundlett and Randolph, Keen, Page and Keen, as garnishees, divers sums, amounting in the whole to $2103-80.</p> <p>After oyer, the plaintiff Brigham demurred, assigning the following causes ; —</p> <p>1. That it does not appear from the plea, that Rundlett and Randolph have ever paid any thing on account of the judgment recovered against them as garnishees, nor that they were liable to pay the same when the plea was pleaded: —</p> <p>2. That the facts set forth in the plea are only a ground for a continuance, and not for a plea in bar, until Rundlett and Randolph have paid the money on the judgment against them as garnishees : —</p> <p>3. That it appears from the record, that Hill and M‘Gunnegle recovered judgment against Hudson for $ 1007-79, and against Ackley, R. L. Keen, Page and 8. L. Keen, as garnishees, divers sums, making together $ 1724-06 ; and the plea does not show whether Ackley, R. L. Keen, Page and 8. L. Keen, or either of them, have or have not paid any part of the judgment recovered against them as garnishees.</p>

Assumpsit on a policy of insurance on profits of a cargo, valued, on a voyage from the port of Mansinella, in the island of Cuba, to Boston. Trial before Shaw C. J. It appeared by the testimony of the master, that he sailed on the 19th of November, on his homeward voyage from Mansinella to Boston, with his water on deck and having no water secured under deck.

Petition for partition. The petitioners, who were has band and wife, averred their seisin in her right, of an undi vided moiety of the premises described in the petition, con1 sisting of a brick tenement and the appurtenances in Boston. The respondent traversed the seisin of the petitioners, upon which plea issue was joined.

This was assumpsit to recover $225, the sum bid by the defendants for the choice of nine houses situate in Boston. The defendants pleaded the general issue, which was joined. On a case stated, it appeared, that on May 18, 1830, the plaintiff contracted with Bates and Frost, that they should build for him nine dwellinghouses, four in Salem Street and five in Unity Court, in Boston.

<p>Action on the case for slander. The writ was dated December 20, 1830. It described the plaintiff as of Dedham in the county of Norfolk, and the defendant as of Boston in the county of Suffolk.</p> <p>The declaration contained originally two counts.</p> <p>The first count, as it stood originally, stated that long before and at the time when the alleged grievances were committed, the plaintiff had been and was acting as agent for a certain company, called the Boston and Providence Citizens Coach Company, with great emolument to himself &c., and that one Thomas P. Brown acted as a sub-agent, and as such sub-agent received large sums of money for the company, of which he kept an account in their books and rendered the same to the proper officers of the company, together with" the way bills or account of passengers conveyed in the coaches of the company, and that suggestions had been made that Brown had not accounted for all the moneys so by him received, whereupon an investigation was made, on examination of the books and way bills had, from which it did not appear that any money remained in the hands of Brown unaccounted foi, all which the defendant well knew ; yet the defendant, contriving and maliciously intending to injure the plaintiff in his'good name &c., and to deprive him of bis said agency and all the emoluments thereof, on June 1, 1830, at said Dedham, in a discourse of and concerning the plaintiff and of and concerning his agency in the said company, and of and concerning the books kept by Brown and the examination of the same, did, in the presence and hearing of divers good citizens of this commonwealth, utter the following words of and concerning the plaintiff, to wit, Mr. Gay (meaning the plaintiff) has altered the way bills and books (meaning the way bills under the care of said Brown and the books kept by him as afore said) to make, them correspond, for the purpose of screening Brown (meaning thereby that the plaintiff, for the purpose of aiding said Brown in concealing his frauds on the said company, has been guilty of the crime of forgery.)</p> <p>The second count alleges, that on the same day, at &c., the defendant, in a certain other discourse &c. of and concerning the plaintiff and of and concerning his agency and the agency of the said Brown in said company, did, with the malicious intention aforesaid and for the purposes aforesaid, (referring to the first count,) in the hearing of divers other good citizens, utter of and concerning the plaintiff the following words; — “Gay (meaning the plaintiff) and Brown are together in cheating the company (meaning the aforesaid company) and they will cheat them out of more than the company can make — by reason of the speaking &c. of which words (in both counts) the plaintiff has been injured in his good ñamé &c., has lost the good will and esteem of divers good citizens, has fallen under the suspicion of the members of said company, has suffered great pain and anguish of mind, and been greatly injured in his business and pursuits, and been exposed to a public prosecution for forgery and fraud.</p> <p>The action was entered at January term 1831 of the Court of Common Pleas, and was continued to the following April and July terms. At the July term the plaintiff had leave to amend, and in pursuance thereof he filed three additional counts, to which no objection was made until the cause was opened to the jury.</p> <p>The third (or first additional) count alleges, that the defendant, on June 1, 1830, at &c., in a discourse of and concerning the plaintiff, did, in the presence of divers good citizens of this commonwealth, falsely and maliciously, openly and publicly, charge the plaintiff with the crime of forgery.</p> <p>The fourth count, after reciting the plaintiff’s capacity of agent, as set forth in the first count, alleges that the defendant, on June 1, 1830, at &c., in the presence of divers good citizens, &c., in a certain other conversation of and concerning the plaintiff and of and concerning his behaviour in his said office and business of agent, accused the plaintiff of fraud and dishonesty in his said office of agent.</p> <p>The fifth count, after reciting the agency of the plaintiff and of Brown, as set out in the first count, alleges that the defendant, in the presence of divers good citizens, &c., at &c., to wit, on June 1, 1830, in a certain other discourse of and concerning the plaintiff and of and concerning the conduct of the plaintiff in his said office of agent, charged the plaintiff with the crime of conspiring together with Brown to cheat and defraud the said Citizens Coach Company : — By means of which charges in the plaintiff’s counts mentioned the plaintiff is further greatly injured &c. (as before,) and has been exposed to a public prosecution for forgery and fraud.</p> <p>The defendant pleaded the general issue, in the Court of Common Pleas, and the action was brought up to the Supreme Court, upon a formal demurrer, the plaintiff reserving liberty to amend and the defendant reserving liberty to plead anew.</p> <p>In all the counts the words had been laid as spoken lc at said Dedham,” without the videlicet, “ to wit, at said Boston.” At the trial in this Court, before Putnam J., upon reading the writ to the jury .it was objected by the defendant, that the words “ to wit, at said Boston,” in all the counts, had been inserted after the plea of the general issue had been filed, on which he intended to rest his defence, and that such amendments changed the venue, the cause of action having been originally at Dedham in the county of Norfolk ; and that no amendment ought to have been made without previous notice to the defendant or his counsel. The amendments had been made some days previous to the trial, and before issue joined in this Court. The plaintiff contended that these amendments were merely formal; and further, that as the demurrer in the court below reserved the right to amend, the words were properly inserted, within the rule for amendments.</p> <p>The judge overruled the objection, and upon the plaintiff’s counsel’s assenting that the trial .should be postponed from that day, which was Saturday, until the following Monday, as the defendant’s counsel had had no notice and might be surprised, the judge directed such postponement, and directed further, that if the defendant wished to plead specially, his pleas should be delivered to the plaintiff’s counsel by 9 o’clock on Monday morning. On that morning the general issue and pleas in justification to the first, second, fourth and fifth counts, were delivered to the plaintiff’s counsel. To all the special pleas the plaintiff replied, that the defendant spoke the words of his own wrong &c ; and issue was joined thereon.</p> <p>After issue joined the plaintiff again asked leave to amend his declaration, by inserting in the third count the words, “in a certain other” before the word “ discourse,” and in the third, fourth and fifth counts, the word “ other ” before “ good citizens ” ; which amendments were allowed without terms, the defendant’s counsel objecting thereto.</p> <p>The cause went to trial upon the declaration and pleadings as they now stand ; and a verdict was found for the plaintiff.</p> <p>In support of the general count alleging that the defendant accused the plaintiff of fraud and dishonesty in his office of agent, the plaintiff, at the trial, called witnesses whose testimony tended to show that the defendant had, at times previous and subsequent to June 1, 1830, imputed to the plaintiff fraud and dishonesty in his office of agent, but all the testimony related to conversations before the date of the writ and within the period fixed by the statute of limitations. The defendant’s counsel objected to the admission of any testimony to more than one conversation, and to any conversation before June 1, 1830 ; which objection was overruled.</p> <p>The defendant moved for a new trial; —</p> <p>1. Because the judge permitted the plaintiff to go into evidence upon the three new counts, which were for new causes of action.</p> <p>2. Because the plaintiff was permitted to go into evidence of facts and circumstances, and of words spoken by the defendant, long prior and subsequent to the time when the words alleged in the declaration were said to have been spoken.</p> <p>3. Because after the filing of the pleas the plaintiff was permitted to amend his writ and declaration, by changing the venue thereof, by inserting in all the counts the words, “ to wit, at said Boston,” against the consent of the defendant, thereby giving jurisdiction to the Court.</p> <p>4. Because after the pleadings were closed the plaintiff was permitted to amend his declaration again without terms, so as to read t£ in a certain other discourse,” under which amendments he was permitted to go into evidence of distinct and different causes of action.</p> <p>The defendant moved also in arrest of judgment; -</p> <p>1. Because the words set forth in the first two counts are not actionable.</p> <p>2. Because the colloquium and averments in those counts do not make the words actionable, and no special damages are alleged.</p> <p>3. Because the innuendoes in the first two counts are not supported or authorized by the words alleged to have been spoken of the plaintiff.</p> <p>4. Because the words set out in the first two counts do not support the charges and averments in the last three counts.</p> <p>5. Because the Court had no jurisdiction of the cause before the venue was changed by the amendments, nor could the amendments made without the consent of the defendant, give such jurisdiction.</p> <p>6. - Because the verdict is general, and some one, or more, or all the counts are defective and insufficient to entitle the plaintiff to judgment.</p>

<p>Assumpsit on a policy of insurance, dated November 11, 1824, by which the defendants caused the plaintiffs to be insured 9,600 dollars on the cargo and 400 dollars on the freight, valued at 800 dollars, of the schooner William King, at and from Havana to her port of discharge in the United States. The plaintiffs claim for a total loss.</p> <p>The cause was tried at November term 1831, before Wilde J. It appeared at the trial, that the schooner sailed from Havana on November 30, 1824, bound for Castine, in Maine, having on board 500 bags of coffee, 50 boxes of sugar and 6 chests of tea, the whole of which, as well as a part of the vessel, was the property of the plaintiffs. After being several days at sea, she was compelled by stress of weather, the death of the mate and sickness of the crew, to bear away for the port of Charleston for repairs and for á new crew, and she arrived there on the 7th or 8th of December. Certain repairs were there made and a new crew shipped, and to defray the expenses the master sold 40 bags of coffee for $ 660-80, exclusive of the duties and charges. The schooner sailed from Charleston with the remainder of her cargo, on the 18th or 19th of December, and on the 28th she was cast ashore, by stress of weather, at the Washwoods, on the coast of Virginia, about forty miles from Norfolk. On the second or third day afterwards all her cargo - was landed on the beach, with but little if any damage, and it remained there until the 11th of January 1825, when it was sold, as v as the schooner also, by the wreck master, by order of the master of the schooner, for the benefit of the owners, underwriters and others concerned. The cargo and vessel were advertised for sale in the Norfolk newspapers of the 3d of January. Having completed the sales and received the proceeds, the master went to Norfolk, where he paid, on the 15th of January, to the collector of Norfolk, the duties on the cargo. He has ever since, as it is believ .ed, kept himself fraudulently concealed, and has not paid die proceeds of the cargo and vessel to either the plaintiffs or the defendants. The news of the stranding was first learned by the plaintiffs on the 8th of January, by a letter from the master, which was communicated to the defendants, and on the same day an abandonment was tendered to them and by them refused.</p> <p>The defendants resisted the claim for a total loss, on the ground that the cargo might have been transported from the Washwoods to Castine at an expense less than one half of its value.</p> <p>Many witnesses were examined in the case.</p> <p>John Cornick, called by the plaintiffs, testified that he had been commissioner of wrecks ever since 1817 ; that the cargo of the William King was landed the first night and the next day after she was stranded ; that it was piled and secured under a tent made of the sails of the vessel; that the master was introduced to him in the afternoon of the 29th of December; that the master said he wished the witness to take charge of the property as commissioner; that the master said he had made up his mind to sell the property ; that the witness knew of no exception .to the practice" of selling wrecked cargoes on the beach ; that he had never known a master to transport a cargo from the Wash-woods ; that wrecks occur every year on the beach between Cape Henry and Currituck; that he thought the master did right to sell ; that he should have advised him to do so ; that it is the commissioner’s duty to assist wrecked captains, procure hands and transport the cargo to a place of safety; that the witness should feel himself bound to put such property, if required, in a place which he should think perfectly safe ; that if the master had been lost, the witness should have put the cargo on the hills, as was done, and secured it in a tent; that the property was in the keeping of a guard on the beach ; that the witness should keep property so situated, eight or ten days where it was, and then have moved it to some house ; that he would not leave it on the beach four weeks, he might think it safe there for twenty days ; that it was safe there unless there should be an extraordinary storm ; that the nearest place where it could be put under cover was about fourteen miles from the place of wreck ; that this cargo was well protected and was transported to Norfolk cheaper than any he had known ; that he was willing to contract to transport it for a cent and a half a pound, the owners taking the risks of weather and plunder ; that he advised the master that ten - days’ notice of the sale was sufficient, in reference to his owners as well as to purchasers and that owners have come on not unfrequently and stopped wrecked sales.</p> <p>James G. Williamson testified, that at the time of the wreck he was acting as deputy under Cornick, and that upon inquiry made of him by the master, he gave it as his opinion, that at that season of the year, from the badness of the roads, and the exposed state and weight of the cargo, it would be best to sell the property.</p> <p>There was much evidence in the case as to the cost of transportation to Norfolk, some witnesses stating that it would have cost the master about three cents a pound, and some stating that the purchasers actually gave about a cent and a .half a pound ; and as to the property being in danger from the weather, and being injured by rains, and being exposed to plunder ; and as to the cost of carrying the cargo to Castine, its port of destination ; and as to the necessity and the expediency of selling the property on the beach.</p> <p>The plaintiffs drew up a statement of the loss according to their view of the evidence, as follows : —</p> <p>Transportation of 121,690 lb. from Washwoods to Norfolk, say 3 cts. per lb., is......f 3650 70</p> <p>Commissions and charges at the Washwoods as per account of sales,' saving and landing cargo &c. .... $ 919-80</p> <p>Insurance from Washwoods to Norfolk against plunder and weather, including the risk at the Washwoods against weather, being winter season, and transportation in open carts, say 25 per cent, on $ 11,851-31, amount of invoice of cargo on board when stranded, the proceeds of the sales of 40 bags of coffee at Charleston, S. C., being deducted ..... 2962-83</p> <p>Amounts forward</p> <p>3882-63 3650-70</p> <p>Amounts forward . . 3882-63</p> <p>3650-70</p> <p>Storage, wharfage and labor at Norfolk, and truckage to vessel for re-shipment to Castine ...... 120-00</p> <p>Commissions for bonding or paying the duties, advancing the money to pay the transportation from Washwoods to Norfolk, and other expenses, and attending to re-shipment from Norfolk for Castine, say 2| per cent, on $ 17,379-81, being amount of invoice with duties added . . . 434-49</p> <p>Insurance from Norfolk to Castine, being a winter passage, say 1¿ per cent, on</p> <p>$ 17,379-81 ..... 217-25</p> <p>Freight from Norfolk to Castine, being a winter voyage and no return freight to be procured, say ¿ cent per lb. . 608-45</p> <p>5262-82</p> <p>$8,913-52</p> <p>insurance against plunder and damage from weather, from Washwoods to Norfolk, on $ 5,528-50, being amount of duties at risk, the same being bonded or paid at the custom-house, which increased the amount at risk, although it did not increase the amount which the owners would receive from sales of the cargo, at 25 per cent..... 1,382-12</p> <p>$ 10,295-64</p> <p>Amount of invoice of coffee and sugar $ 12,279-62 “ “ “ 6 chests of tea (part</p> <p>of outward cargo) returned , 232-53</p> <p>- 12,512-15</p> <p>Deduct proceeds of 40 bags of coffee sold at Charleston 660-84</p> <p>Value at Washwoods per costs .... $ 11,851-31</p> <p>The item of 919-80 includes a charge of 0 590-05 for commissions on the sales at the Washwoods.</p> <p>The jury were instructed, among other things, that if transporting the cargo to Castine would not have cost fifty per cent, of the value after deducting the freight saved, it was nevertheless a case of total loss, if there was a necessity for a sale ; and that to determine whether that necessity ex isted, they would inquire whether a sale was the best thing for all concerned, and whether a prudent owner, if present, would have sold under the same circumstances ; that if the sale was necessary, that constituted a total loss, without any abandonment, and that the proceeds in the hands of the master were at the risk of the underwriters.</p> <p>The jury returned a verdict for a total loss ; and the defendants moved for a new trial, on the grounds, that the above instructions were errpneous, and that the verdict was against law and against the. evidence in the case.</p>