Volume 31 — Massachusetts Reports

<p>This was an action upon the case, in which the plaintiffs, as owners of the schooner Triton, claimed compensation for damages sustained by that vessel in consequence of being run against by a brig, called the Burton, belonging to the defendant.</p> <p>At the trial, before Shaw C. J., it appeared, that on the evening of April 13, 1828, while the Triton was lying at anchor in the river Mississippi, about, eight or nine miles below New Orleans, the steamboat Grampus came down, having a ship lashed upon each side, and the Burton towed astern by a hawser of about thirty fathoms in length ; that the steamboat passed so near the schooner that the ship on her larboard side just cleared the schooner, and the collision between the brig and the schooner took place, which is the ground of this action. Both vessels sustained damage, that of the schooner amounting to a sum between six hundred and seven hundred dollars.</p> <p>There was evidence tending to show, that, in consequence u<" the negligence and bad management of those who had the care and conduct of the steamboat, the vessel in tow, without any culpable negligence or unskilfulness of those who had charge of her, was thrown out of the track of the steamnoat and so caused the collision. In reference to which, the jury were instructed, that if this collision took place through the negligence, unskilfulness or misconduct of those who had charge of the steamboat, the owner of the Burton was not liable in this action. The plaintiffs excepted to this instruction.</p> <p>It appeared that the Grampus was a tow steamboat, and that it was customary for masters of vessels to employ steamboats of this sort to tow them in the river; and that the owner of the Burton, who was on board at the time of the collision, contracted with the master of the Grampus, for the towage of the Burton to the mouth of the river.</p> <p>The jury found a verdict for the defendant.</p>

<p>Where the administrator of an insolvent estate gives notice of his dissatisfaction with the claim awarded by the commissioners to a creditor of the estate, according to the provisions of St. 1784, c. 2, and the creditor, in consequence, brings his action at law, the creditor is not precluded from recovering a larger sum than was allowed by the commissioners, although he may not have given notice of his intention tí; have his claim determined at common law.</p> <p>In such action, the report of the commissioners allowing a set-off against the claim of the plaintiff was held not to be competent evidence to prove the set-off.</p> <p>The books of account of a person deceased, although verified by the oath of a witness, are incompetent to prove cash charges exceeding forty shillings in amount.</p> <p>Where the administrator of an insolvent estate gives notice of his dissatisfaction with the sum awarded to a creditor, by the commissioners, and the creditor recovers a larger sum than was allowed by the commissioners, the creditor is entitled to an execution for the costs of the action, against the administrator, de bonis propriis; but if the administrator had sufficient reason for his appeal, the judge of probate may allow the costs to be charged in the administration account.</p> <p>It seems, that in all cases, where a creditor recovers al common law, a larger sum than was allowed him by the commissioners of the insolvent estate, judgment for costs should be rendered against the administrator de bonis propriis.</p>

<p>Assumpsit to recover a sum of money as general average.</p> <p>At the trial before Shaw C. J. it appeared, that the plaintiffs were the owners of the schooner Champion, which sailed from New York for- Boston about the 22d of January, 1831, with a cargo.</p> <p>The master deposed, among other things, that on the 31st of January, at about 10 o’clock in the evening, he passed Cape Cod light ; that at 11 o’clock commenced a severe snow storm, with a gale of wind from east-north-east ; that at about 8 o’clock the next morning, be was among Cohasset rocks, and was standing to the westward ; that finding he could not get past them, as the wind was too light, he wore ship to the southward and let go both anchors ; that the schooner kept drifting, and he cut away her masts to prevent her drifting, and she then brought up ; that in about an hour afterwards she drifted again, and continued to drift until she struck on the rocks, and he then slipped both cables and let her go as high as she would, for the preservation of the lives of those on board, and of the cargo. He abandoned her in the afternoon, and the next day he found her dry on the rocks, with her bottom stove to pieces.</p> <p>It was admitted that the defendant had goods on board the schooner, which were ultimately saved.</p> <p>A nonsuit was entered. If upon the facts stated in the master’s deposition and such as a jury ought to infer from it, the Court should be of opinion that the plaintiff was entitled to recover, the nonsuit was to be taken off; but otherwise judgment was to be rendered thereon for the defendant.</p> <p>For the plaintiff were cited Potter v. Providence &c. Ins. Co., 4 Mason, 299 ; Caze v. Reilly, 3 Wash. C. C. R. 298.</p>

<p>This was a bill in equity brought by Zabdiel B. Adams and Sarah M., his wife, George W. Holland, David R Griggs and Aaron D. Weld junior, Edgar K. Whittaker and Catharine C., his wife, Isaac Mansfield, Frederick W,, Sarah and Elizabeth Holland and Ann West, against Edward Cruft, administrator with the will annexed, of John Holland, and against others, the grandchildren of John Holland.</p> <p>The bill alleges, that on August 23, 1822, John Holland made his will, in which were the following clauses :</p> <p>“ I give to my wife, Sarah, during her natural life, all my mansion-house and appurtenances, with the furniture and stores as the same shall remain at my decease, apd my pew in Federal street meetinghouse : also the income and profits of my right in the Boston Pier or Long Wharf, being one full share of the same, that is, three warehouses and one twenty-fourth part of said wharf; and at her decease, the said mansion house, with the remainder of the furniture and stores, if any, the pew and also said right, to be divided among my children, Samuel M , Sarah M., George W., Catharine C. and Frederick W., share and share alike, and to the heirs of their bodies respectively ; and if the net annual income of my said right in the same Boston Pier shall, in any one year during the life of my said wife, fall short of the sum of $ 1000, my will is that such deficiency be paid to her by my executor, from my personal estate ; it being my intention, that the annual provision for her support shall in no event be less than $ 1000, besides the occupation or rent of my said mansion-house, if she shall prefer to let the same.”</p> <p>“ I give to. my sister Elizabeth Holland, to my sister Ann West and to my nephew Thomas Holland, to such of them as shall survive me and to each of them, $ 60 per annum, payable half yearly, from the day of my decease during their lives respectively.”</p> <p>“ My will is, that so soon as my youngest child shall have arrived at full age, all the rest and residue of my estate, real and personal or mixed, after providing for the annuities to my two sisters and nephew, except such as is bequeathed to rjy said wife during her life, shall be divided into equal parts ; one of which to go to each of my said children who shall be then living, and to the heirs of their bodies respectively for ever, and to none other.”</p> <p>The bill further alleges, that the testator died on June 18, 1824 ; that E. Cruft was appointed administrator with the will annexed ; that Thomas Holland has long since deceased ; that Frederick W. Holland, who wras the youngest child of the testator, arrived at full age, on June 22, 1832 ; that Samuel M. Holland, now deceased, for a valuable considera tion, assigned all his right and interest in and under the devises aforesaid to George W. Holland ; that George W. has assigned all the interest so devised to him to Griggs and Weld, by way of collateral security ; that upon a treaty of marriage between Edgar K. Whittaker and Catharine C. Holland, all her interest under said devises was conveyed in trust, and that Mansfield is now the trustee ; that Samuel M., at his death, left three children ; that Zabdiel B. Adams and his wife had four children ; that George W. has two children ; and that Edgar K. Whittaker and his wife have one child ; that all these children (who are respondents) are minors ; that the respondent Cruft, under the devise first set out, and under the bequest of annuities, and the charge thereby made on the estate of the testator and the trust thence arising, ought to have set apart a sufficient sum for the satisfying thereof, and ought to have declared the trusts for which the same was set apart, but that he had declined to set apart any portion of the property for that purpose ; for that after satisfying the specific and other devises and legacies, providing a fund for the maintenance of the widow and for paying the annuities, he would have had, at the time when Frederick W. arrived at full age, and now has in his hands, as administrator, a large sum of money, being the residue of the estate, which ought to have been divided, in equal shares, among such of the complainants as were the children of the testator, or their representatives, as an absolute estate ; but that he had refused so to do. Wherefore the complainants pray an account &c., and that execution of the trust may be decreed.</p> <p>The answer of Cruft'alleges, that the annuities bequeathed are made a charge upon the whole residuary fund claimed, not upon any particular portion thereof; that if the testator had intended that the residuary fund should be divided, as now claimed by the bill, he, the testator, would have set apart a fund to be charged with the annuities ; that the whole of the residuary fund claimed is pledged, m the hands of the respondent, for the purpose of making up any deficiency in the income provided for the widow. It denies, that it is the duty of the respondent to set apart a fund to be charged with the annuities &c., at the respondent’s own risk, without the assent of the annuitants &c. ; and admits that a large amount of personal, but no real estate, has come into his hands, which he is desirous to pay over to the person whc may be entitled thereto, but denies that the complainants are entitled to their shares, as they claim the right to receive them, as an absolute estate.</p> <p>The other respondents answered by their guardian ad litem, Francis O. Watts Esq., denying that Samuel M. could legally assign &c., or that the residue of the estate ought to have been divided when Frederick W. came of age, among the complainants in equal shares, as claimed in the bill, other than the annual profits, or that a fund should be set apart for the annuitants &c. ; and alleging, that they beheve that it was the intention of the testator, that the property should be secured for the benefit of the grandchildren as well as children.</p> <p>To these answers the complainants filed a general replication.</p> <p>There was another clause in the will, by which the testator gave the sum of $ 7,800 to trustees, to be invested in stocks or real estate, and the interest and dividends to be paid over to his daughter Sarah M. during her life ; at her decease, the principal and interest were to be divided equally among the heirs of her body, if any ; and in default thereof, the same were to go to her surviving brothers and sister, in equal shares, and to their respective heirs forever.</p> <p>The testator also gave the. sum of $ 10,000 to the same trustees, in trust for his daughter Catharine C., with similar provisions ; and in case she should be married before Frederick W. should arrive at full age, the executor was authorized to advance to her, as an outfit, a sum not exceeding $ 2000, taking therefor her receipt on interest, the same to he deducted from her share in the division of the estate.</p> <p>By other clauses in the will, the testator gave $ 10,000 to each of his sons.</p>

<p>This was an action on the case against a deputy sheriff for neglecting to serve a writ in favor of the plaintiff against George Baxter by the attachment of his real estate, pursuant to the plaintiff’s directions, by which neglect the plaintiff alleged he had lost the debt due to him from Baxter.</p> <p>At the trial, before Morton J., the plaintiff proved, that on the 19tb of November, 1830, he caused a writ in his favor against Baxter, founded on a promissory note for 639 dollars, to be delivered to the defendant, with directions to attach certain real estate of Baxter, in Boston, and made a memorandum to that effect on the writ, and furnished the defendant with a memorandum of the lands, which are the same described in the defendant’s return on the writ. The' defendant received the writ and undertook to serve it accord ing to the directions. But the next day, November 20th, the defendant attached the same lands on a writ in favo: of one Austin. They had been previously attached by anclher deputy sheriff, on the 18th of November, on a suit in favor of one Strong against Baxter. They were again attached by another deputy sheriff on the 22d of November, on a writ in favor of Messrs. Carnes against Baxter. On the 24th of November they were mortgaged by Baxter to one Cooke.</p> <p>The plaintiff then put into the case the original writ in nis favor against Baxter, and the defendant’s return thereon made to the January term of the Common Pleas, by which it appeared that the defendant, on the 19th of December, 1830, at twenty minutes past 12 o’clock P. M., had attached the lands- before mentioned.</p> <p>The plaintiff further proved, that at the January term of the Common Pleas, 1832, judgments were recovered in the suits of Strong, Austin and Messrs. Carnes for the amount of the debts, and also in the suit of the plaintiff for $777-30, and that executions on these judgments were levied in due time in the following order, viz. Strong’s, the plaintiff’s, Austin’s and Messrs. Carnes’s. The plaintiff’s execution was levied on land in Belknap street and returned satisfied. The same land was afterwards levied on by virtue of Messrs. Carnes’s execution, and seisin thereof delivered to them by another deputy sheriff. Baxter’s lands were not sufficient to satisfy all the executions, that of Messrs. Carnes being returned satisfied in part only.</p> <p>By the return on the plaintiff’s execution the defendant delivéred seisin of the land levied on “ subject to any prior attachment if any there be thereon ”</p> <p>It further appeared that the plaintiff’s attorney, when he handed the writ to the defendant, saw him make a memorandum, but what the memorandum was he did not know. •The plaintiff’s attorney was also the attorney of Strong, Austin and Messrs. Carnes, and he delivered their writs to the several deputy sheriffs with directions as to the attachments, and he directed the levies of their executions as he thought most beneficial to them, having regard to the priority of attachments.</p> <p>At the January term of the Common Pleas, 1830, the plaintiff’s attorney filed for the defendant a petition for leave to amend his return on the plaintiff’s writ by inserting the 19th of November instead of the 19th of December ; which was granted and the amendment made accordingly.</p> <p>The 19th of December was Sunday. The return on the plaintiff’s writ states that the defendant gave a summons to Baxter on the 8th of December.</p> <p>On the original writ, which was produced by the plaintiff, appeared the following memorandum in the handwriting of the defendant : — “ Attached as above directed 20 minutes past 12 P. M. Nov. 19th.—Attachment No. 1, by P. S. Dep. Shff.”</p> <p>The defendant’s return on the writ of Austin set forth, that the attachment by virtue thereof was the second one made by the defendant on the lands above mentioned, and that the prior attachment was in favor of the plaintiff.</p> <p>The levy of the plaintiff’s execution has been no otherwise disturbed than by the subsequent levy of Messrs. Carnes’s execution ; since which the plaintiff has not entered or been in possession, nor in any way intermeddled with the rents and profits.</p> <p>The defendant offered his private book or record of his doings in relation to writs and processes, as evidence of his doings in relation to the plaintiff’s writ and the time of the attachment, but the same was rejected by the said judge</p> <p>The Court were to render such judgment for the plaintiff or defendant as the rules of law should require.</p>

<p>In adjusting a general average in the case of a jettison, if the vessel arrives at the port of destination, the value of the goods thrown overboard is the net price for which they might have been sold at that port.</p> <p>But if the vessel returns to the port of departure or a neighbouring port, the actual price of replacing the goods thrown overboard, or if that cannot be done, the cost price, including shipping charges, is the rule by which the value of the goods jettisoned should be ascertained.</p> <p>As a general rule, the valuation of the cargo in the bill of lading is conclusive between the owner of the ship and the owner of the cargo, in the adjustment <»f a general average al the home port.</p> <p>Where the cargo jettisoned consisted of ice, which had no market value at the port of departure, but in the bill of lading (there being no invoice) was valued at a certain sum, and the vessel returned to her port of departure, it was held, that in adjusting the general average at that port the sum in the bill of lading was to be taken to be the value as between the shipper and the ship-owner 5 and that as no freight was earned, the contribution was to be made by the ship and cargo alone.</p>

<p>In the statutes of 1817, c. 176, § 5, 6, and 1827, c. 118, $ 19, 20, which provide thaJ whenever any person who shall be convicted of any crime, the punishment whereof shall be confinement to hard labor u for any term of years/7 shall have been re fore sentenced to a like punishment, he shall be sentenced to punishment in vj»u lion to that by law prescribed for the offence of which he shall be convicted, the words term of years mean a period of time not less than two years.</p>

<p>if a witness offered by the plaintiff has become interested in the event of the suit by a bond Jide contract with the defendant, made in the regular course of business and without any intention on the part of the defendant or the witness to deprive the plaintiff of his testimony, he is incompetent, although such interest was created after the plaintiff had become entitled to his testimony.</p> <p>In an action by an indorsee against W. on two promissory notes, one of which was made by W. and indorsed by J., and the other was made by J. and indorsed by W., it appeared, that after the execution of the notes but before their maturity, J. had failed in business and assigned his property for the benefit of his creditors, and had been in consequence thereof released by W. from all liabilities to him. It was held, that J., who was offered as a witness by the plaintiff, was not incompetent, as being interested in the event of the suit 5 for he would still be Jiable to the plaintiff, whether the plaintiff recovered judgment against W. or not, and the judgment in this suit could not be given in evidence in an action against J.</p>

<p>This was a petition to the Court of Common Pleas, under St. 1819, c. 156, securing to mechanics and others payment for their labor and materials expended in erecting and repairing houses and other buildings, with their appurtenances.</p> <p>The petitioner, who is a housewright, alleges, that on March 4, 1826, a contract in writing was made between himself and one Henry Smith, since deceased, the proprietor of certain land described in the petition, situate in South Boston, for erecting thereon a house and other buildings and furnishing labor and materials therefor, which contract was made and intended by the parties thereto to operate and create a lien to secure the payment of the same, upon the buildings and appurtenances and upon the land ; that the contract was duly recorded in the registry of deeds ; that the petitioner has completed the contract on his part, and that a large sum of money is due to him by virtue thereof; and he prays for a sale of the land with the appurtenances, and for further pro ceedings, pursuant to the statute.</p> <p>Notice of the petition was ordered to be given to the administrator of Smith and to all other persons interested in the land.</p> <p>The respondents, John D. Williams and Moses Williams, appeared and filed an answer, in which they allege, that they had no knowledge of the existence of the contract between the petitioner and Smith referred to ; that on March 4, 1826, Smith was not the proprietor of the land, and that he did not become the proprietor until June 15, 1827 ; that by a deed of that date the corporation, called the South Boston Association, in consideration of $ 960, conveyed the land to Smith, and that at the same time and as a part of the same transaction, Smith, by his deed of mortgage, in consideration of $ 2400, granted the land to Nathaniel Stamford, and that a part of this sum was applied by Smith in payment of the $ 960, and that these two deeds were duly recovered that the respondents afterwards, for valuable considerations, pur chased the mortgage and the equity of redemption, having first caused an examination to be made at the registry of deeds in order to ascertain whether Smith had made any conveyance after he had acquired his title by the deed of June 15, 1827, and that by force of the deeds made to them by Stamford and Smith they became seised in fee of the premises in question, free of the supposed lien set up in the petition.</p> <p>The petitioner protested against the right of the respond ents to appear in the case, but if they had such right, then he demurred to their answer.</p> <p>It was admitted .at the argument, that on March 4, 1826, Smith held a written contract, but which was never recorded, whereby the South Boston Association agreed to convey to him the land in question upon his paying certain promissory notes given by him as the consideration for that contract, and that he had paid some of the notes.</p>

<p>in assumpsit for goods sold and delivered, an account of which was annexed to the writ, the defendant pleaded in bar a former judgment recovered by the plaintiff against him upon a writ containing, among other counts, a general count for goods sr Id and delivered, which might have embraced the claim whici was the subject of the subsequent action, it was held, that the record of the former judgment was on primA facie evidence of a prior adjudication of such claim $ and that evidence aAivxde, was admissible to prove that such claim had not been considered and determined in the prior action.</p> <p>After the dissolution of a partnership between an active and a dormant partner, an action for the balance of an account was brought against both, in which the dormant partner pleaded payment, and the active partner, who was, by mutual consent, constituted agent to settle the partnership concerns, was defaulted. It was held, that an admission by the active partner, that such balance, in consequence of a mistake, had not been paid, made after the dissolution of the partnership, was competent evidence.</p>

<p>The equity jurisdiction given to this Court by St. 1823, c. 140, § 2, m disputes between partners, joint tenants and tenants in common, does not extend to cases between members of a manufacturing corporation.</p> <p>It is not essential, in order that an act may take effect, incorporating individuals as a manufacturing corporation, that the records of the corporation should show a formal acceptance of the act, by the individuals incorporated.</p> <p>Nor is it essential to the proper organization of such a corporation, that its recor i should show that notice of the first meeting had been given.</p> <p>A purchase by only two individuals, pursuant to an agreement between them, of all the shares in such a corporation, does not dissolve the corporation, nor do these individuals become partners, joint tenants or tenants in common in consequence of such purchase.</p> <p>The circumstance that such a corporation has been without officers for more than two years, and its omission to do any corporate act during that period, do not make the members partners, joint tenants or tenants in common, nor operate as a dissolution of the corporation.</p>

<p>A testator who held $20,138 in the three per cent, stock of the United States, made the following bequests : “ I*give and devise' to my daughter M. S., at this lime single, $600 per annum, to be regularly paid to her in quarterly payments out of my three per cent, stocks, during her life, and should she marry and have issue, then, at her decease, the same to go to her children and the children of B. H. equally.” — " All the rest and residue of my estate, I give unto my grandchildren, the children of my daughters, M. S. and B. H., that is to say, to such of them as may be living at my decease, in equal portions.” After the death of the testator, a large portion of the slock was paid off by the United States, and the fund in the hands of the executor thus became larger than was sufficient to raise the sum of $600 annually. It was held, that the words, the same, in the first clause, did not refer to the annuity, but to the stock, and therefore that the stock did not pass by virtue of the latter clause, to the residuary legatees, subject to the annuity \ and that it was the intention of the testator, that the stock should remain in the hands of his executor during the life oí M. S., and the annuity be paid over to her, and that at her decease, the stock itself should be distributed among all the grandchildren who should be living at that time.</p>

<p>This was an appeal from the Municipal Court, on an in dictment against the defendant for selling lottery tickets There were two counts in the indictment. In the first count he is charged with having, on May 15, 1832, sold the quarter of a lottery ticket to Enoch Hawes and Thomas Lawrence. The second count charges the defendant with having offered for sale the quarter of a lottery ticket.</p> <p>At the trial, before Shaw C. J., it appeared from the tes timony of Hawes, that on or about the day alleged in the indictment, Hawes was at work, with Lawrence, in a victualling cellar in Boston ; that the defendant came in ; that Hawes asked Lawrence if he would go halves with him if he bought a lottery ticket; that Lawrence said he would ; that the defendant having produced some tickets, Hawes selected one, and Lawrence agreed to go halves with him in that ticket, that Hawes paid $1.12i, and Lawrence, an equal sum, which together made up the price of the ticket; that Lawrence put his money on the» counter ; but the witness could not say, whether he put his also on the counter, and the defendant took up the money of both, or whether the defendant took up any of the money, or whether he (the witness) gave his part of the money to the defendant; that be kept the ticket with the consent of Lawrence, till the lottery was drawn ; that a day or two after the purchase, the defendant informed them that the ticket had drawn a prize of $2000; and that they then went with the defendant to one Carter’s, where the money drawn as a prize was paid for the ticket.</p> <p>Lawrence testified, that the defendant produced the ticket upon Hawes’s having said something to him about tickets ; that Hawes went out, and that while he was absent, he (Lawrence) examined the tickets and selected one, and remarked, at the same time, that “ if be was going to purchase a ticket, he should select that one ; ” that Hawes came in, a few minutes after, and seeing the ticket which he had selected, rejected it and selected another ; that the witness paid down his half of the price of the ticket and went about his business ; that the witness considered himself as purchasing one half of the ticket of Hawes, and not of the defendant, and that he did not consider himself as having any thing to do with the defend ant in the purchase of the ticket; that the money drawn as a prize was paid by Carter to the defendant, and by the defendant to Hawes, who paid over to the witness his share.</p> <p>There was no evidence of any communication between Hawes and Lawrence on the subject of the ticket, from the time it was delivered by the defendant to the time when he informed them it had drawn a prize.</p> <p>The jury were instructed, that it was necessary, in order to support the first count, to prove a joint sale to Hawes and Lawrence, and that it would not be sufficient to prove a sale of the ticket to one, though he immediately afterwards sold one half of it to the other ; that if there was a previous agreement between Hawes and Lawrence to go shares equally in a ticket to be bought, and Hawes bought the ticket in pursuance of that agreement, then it was a joint sale to the two, and was in the nature of a partnership in the particular transaction, so that a purchase by one, and a delivery to one, would vest an interest in both.</p> <p>The jury found the defendant guilty on the first count, and not guilty on the second.</p> <p>The defendant moved for a new trial, on the ground of misdirection.</p> <p>If the Court should be of opinion, that the directions to the jury were wrong, the verdict was to be set aside and a new trial granted ; otherwise, judgment was to be rendered on the verdict.</p>

<p>By the answers of the supposed trustees, the following facts appeared. On November 5, 1828, a contract was made between the defendants George A. Hodges and Gardner Wheelwright, who were partners, of the one part, and Kittredge and his partner, Wyman, two of the supposed trustees, of the other part, for the joint purchase from Hodges, of 20,000 Russia mats, at ten cents each, on six months’ credit; and it was agreed, that Hodges should store the mats six months free of expense ; that as fast as the mats should be sold, the proceeds should be paid to Hodges, who was to allow interest for the same until the six months’ credit expired ; and that the expense of delivering the mats should be paid by the parties, as interested.</p> <p>On May 6, 1829, a new contract was entered into by the parties, in relation to the mats, which was in the following words ; “ Boston, May 6, 1829. Messrs. Kittredge & Wyman bought of George A. Hodges & Co. 20,000 Russia mats at 10 cents each, $2,000. Received payment. It is understood Kittredge & Wyman are to pay four dollars per month, storage for the above mats, from this date, and interest on the mats until paid for; and the said Kittredge & Wyman are not to pay for said mats more than the amount indorsed on this bill, till the same are sold.”</p> <p>On the back of this last contract was an indorsement by the defendants, of the same date, acknowledging the receipt of $1104-50, consisting of $324-50, in cash, and of the promissory notes of Kittredge & Wyman, for $780.</p> <p>None of the mats were removed by Kittredge & Wyman from the store of the defendants, between May 6, and May 8, 1829, on which last day the mats then in the store, amounting in number to 17,000 or 18,000, were attached by Baldwin, a deputy sheriff, on a writ against the defendants in favor of one of their creditors. Soon after the attachment, Baldwin relinquished to Kittredge & Wyman a portion of the mats, but continued to bold the residue of them, 8474 in number, by virtue of his attachment. The mats delivered to Kittredge & Wyman before May 6, 1829, together with those so relinquished by Baldwin, constituted the amount paid for by,them as specified in the indorsement on the contract of May 6, 1829.</p> <p>On May 13, 1829, Kittredge and Wyman were summoned as the trustees of the defendants, at the suit of Stephen White ; which action was pending in the Court of Common Pleas at the time when these answers were filed ; but it was admitted, that they had subsequently been adjudged trustees in such action.</p> <p>On June 5, 1829, Kittredge and Wyman commenced an action of trespass against the sheriff, for the attaching and car rying away of the 8474 mats, by his deputy Baldwin ; at the trial of which action, Wheelwright testified, that his partner, Hodges, procured the writ and caused the attachment which was the ground of the action against the sheriff, to be made. Final judgment was rendered against the sheriff, at the March term 1831, of this Court, for the sum of $ 939-15, damages, being the value of the mats and interest, together with costs.</p> <p>In regard to this action, Kittredge, in his disclosure, stated that they considered the mats to be their property and to be worth more than ten cents each ; and that if he had supposed that the mats were not worth more than ten cents, each, and that they were not liable to pay for them, to the defendants or any other person, he should not have brought the action.</p> <p>On April 13, 1831, the execution issued upon this judgment was satisfied, and the amount was paid to Henry H. Fuller Esq., the attorney of Kittredge and Wyman, who was summoned as a trustee in the present action. On April 30, 1831, after notice of such payment had been given to them by Mr. Fuller, but before the money had been paid over to them, they were summoned as trustees at the suit of the present plaintiff.</p> <p>The respondents, Kittredge and Wyman, prayed, that in case the Court should be of opinion, that they were chargeable as trustees in the present suit, they might be allowed to deduct from the amount recovered by way of damages in their action against the sheriff their expenses and the charges of their attorney in prosecuting that action to final judgment.</p>

<p>Writ of certiorari.</p>

<p>A sentence as a common and notorious thief, pursuant to St. 1804, c. 143, § 3, although it may have been upon three simple larcenies neither of which separately would be punishable by hard labor for a longer term than one year, is a sentence for an offence punishable by confinement to hard labor for a term of years, within the meaning of St. 1827, c. 118, $ 19,20, subjecting the convict to additional punishment in certain cases. ..</p>

<p>Subsequently to the enactment of St. 1832, c. 73, an information was filed in L»e Mu nicipai Court, praying that additional punishment might be awarded against a convict in the State prison, and setting forth first, a sentence to hard labor for a term of years and his discharge in 1824, secondly, a sentence to solitary imprisonment for three days and to hard labor for one year, and his discharge in 1828, and thirdly, a sentence to hard labor for a term of years, upon which he was still detained ; and thereupon he was sentenced to additional punishment by solitarj' imprisonment for one day and confinement to hard labor for seven years. It was held, that ll«i additional sentence could not be sustained under St. 1827, c. 118, § 19,20, as a sentence upon a third conviction, but that it might be sustained under that statute as a sentence upon a second conviction.</p>

<p>The widow of a mortgager is entitled to dower in the equity of redemption, notwith standing that in the deed of mortgage she may have released her right of dower, and although she cannot maintain an action at law against the mortgagee or his assignee, yet if the mortgage is not foreclosed, a court of equity wifi interpose and allow her to redeem.</p> <p>The owner of land mortgaged it, and bis wife released her right of dower; the equity of redemption was afterwards sold to the defendant on an execution issued against the mortgager, and the defendant having paid the amount due thereon to the mort . gagee, claimed an assignment of the mortgage ; but, the mortgagee declaring that an assignment would be unnecessary, the mortgage was discharged upon the mar- ■ gin of the record in the registry of deeds. It was held, that this discharge was an extinguishment of the mortgage, and not an equitable assignment; and that the widow was entitled to dower in the land free from the incumbrance of the mortgage.</p> <p>The owner of land mortgaged it, his wife releasing to the mortgagee her right of dower; and after condition broken the equity of redemption was sold to the defendant on an execution against the husband. The defendant entered immediately into possession, and afterwards he procured an assignment of the mortgage. He had continued in possession more than three years after the assignment, when the husband died, but no notice was ever given to the wife that he was in possession for condition broken. It was held, that the wife had a right to redeem, in order to be let in to her dower.</p> <p>It was also held, that the defendant was not chargeable with the rents and profits received during the life of the husband, but that he must account for those receivea since his death ; and that the allowance to the defendant, in the account, for repairs must be limited to such as were made since the death of the husband.</p> <p>Upon a bil. to redeem, it was held, that if the mortgagee actually occupied the estate himself, he is not to be allowed, as a compensation for his care of the estate, ■ any commission on the rent with which he is charged by the master in chancery, in stating the account.</p>

<p>Devise;—u 1 give and devise to my wife the use and improvement of one third part o' all my real and personal estate, during her natural life; and I give and devise the same at her decease to my children, their heirs and assigns.” It was held, that this clause gave a contingent and joint interest in the personal estate, to those of thi children who should be living at the death of the testator's widow.</p> <p>Devise:—“ I give and bequeath all the rest, residue and remainder of my estate, real and personal, to my son and my daughters, to be equally divided between them; and to be distributed to them as they shall respectively arrive at the age of twenty one years and not before, to hold to them, their heirs and assigns forever; subject to the payment of the annuities aforesaid; and I do hereby authorize and empower my executors to receive the rents, income and interest of the residue of my estate, real and personal, hereby bequeathed to my children, and out of the same to pay the annuities aforesaid, and also appropriate and apply the whole of the remainder of said rents, income and interest, or such part as they shall judge necessary and proper, to the support and education of my children, until they respectively arrive at the age of twenty-one years.” It was held, that the children took a vested estate in this residue immediately on the death of the testator, and that they took it- as tenants in common and not as joint tenants.</p> <p>Held also, that the income of the real estate and the income of the personal estate must contribute proportionably to the payment of the annuities.</p> <p>Where real estate devised to a female infant was sold pursuant to a license of court, and she afterwards married and died under age, it was held that the proceeds of the real estate were personal estate, and consequently that her husband was entitled to the same.</p> <p>So of damages paid for land of such infant taken for public use as a highway.</p>

Assumpsit upon two joint and several promissory notes, each for $ 5,000, signed by the defendant and by Joseph Strong and others, payable to the order of Joseph Strong, and by hirn indorsed to the plaintiffs.

<p>In an action for a breach of the covenants of seisin and right to convey, contained in a deed of certain land from the defendant to the plaintiff, dated May 22, 1811, It appeared that the defendant had conveyed the same land to the plaintiff by a prior deed, which contained the following clause,: —u By this deed I mean to convey all the lands lying &c., of which A. S. died the owner, and which I claim by virtue of his last will and testament, being all the lands I own in the State of New York.” On this deed was indorsed an unacknowledged deed of the plaintiff, dated June 5, 1811, which was as follows u Whereas the defendant has executed another deed of the same-premises, to be delivered to me upon the assignment of this conveyance to him, I do therefore, in consideration thereof, reassign and convey to the defendant and his heirs, the within-described premises.” It was held, that the plaintiff was not estopped by his deed to deny the defendant's seisin and right to convey.</p> <p>A grantor conveyed a large number of lots of land, described as lying in a tract of wild land called the Boston Purchase. Among these lots were two described as “ long lots numbered 15 and 43, containing 140 acres each, more or less,” which were originally included in the surveys of the Boston Purchase, but which, it had been ascertained previously to the dale of the deed, were adjoining thereto. It was held, that the words of the deed were sufficient to pass the two long lots 5 for the words of general description are controlled by the particular description.</p> <p>Where a survey of land was made in pursuance of a resolve of the legislature of New York, and the plan was deposited in the office of the secretary of state, it was held, that a copy of tne plan, verified by the oath of the surveyor, was competent evidence. But ¡I seems that the original plan itself would not have been competent evidence, unless it had been thus verified.</p> <p>go, a copy of a plan, alleged to have been filed in the office of the secretary of state of New Y01 k, by the persons under whom the parly offering it in evidence claimed title, which was not verified by the surveyor's oath, was held incompetent evidence.</p> <p>In an action brought in Massachusetts, upon a breach of the covenants of seisin and right to convey, where the land is situated in another State, the damages are to be assessed according to the rule adopted in Massachusetts.</p> <p>In such action the measure of damages is the consideration paid, with interest from the date of the deed; but if the consideration cannot be ascertained, the value of the land at the time of the intended conveyance, with interest from the date of the deed, will be the measure of damages.</p>

<p>He St. lí‘29, c. % subjects to the penalty of fifty dollars a person who, not having first obtained a commission or branch, shall undertake to pilot any vessel (other than those which are particularly excepted) into or out of the harbor of Boston, without regard to her draft'of water.</p> <p>As by the above-cited statute, American vessels engaged in the plaster trade between Boston and the province of Nova Scotia are not required to take a pilot, and as by the commercial arrangements between Great Britain and the United States, British vessils coming from the British colonies are admitted into our ports subject to no other duty of tonnage or impost or charge of any description whatever, than would be levied on vessels of the United States coming from such colonies, British vessels engaged in the plaster trade between Boston and Nova Scotia may lawfully refuse to take a pilot into or out of the harbour of Boston.</p>

<p>Assumpsit on a policy of insurance, dated October 28, 1828, on the ship Grecian, to recover for a partial loss.</p> <p>Upon a case stated it appeared, that the ship was injured by getting on shore at Liverpool, and was repaired. The loss was settled before the institution of this suit, by a compromise, in which the underwriters assumed the right of deducting the one third new for old from the gross amount of the loss, but it was agreed by both parties, that if this adjustment was erroneous in point of law, the plaintiff should recover a further sum of $226-87, and interest, this sum being the difference, if the deduction ought to have been made from the net amount of loss after deducting the value of the materials saved.</p> <p>It was agreed for the purposes of this hearing, that at the time of the underwriting of the policy and of the happening of the loss, it was the usage of the insurance offices in Boston (the place where this policy was underwritten) to make the deduction in the manner in which it was made in the compromise above mentioned.</p> <p>The policy is in the form adopted in 1823 ny all the insurance offices in Boston, and it contains the following clause:—'“Touching the adventures and perils which the said company are contented to bear, and take upon them in this voyage, they are, of the seas &c. and all other losses and misfortunes which have or shall come to the damage of the said ship or any part thereof, to which insurers are liable by the rules and customs of insurance in Boston; provided ” &c. The clause italicised was not contained in the policy, underwritten at Salem, in the case of Brooks v. The Oriental Insurance Company, 7 Pick. 259.</p> <p>If on these facts the plaintiff was entitled to recover, judgment was to be rendered on a default, for the sum above mentioned and interest.</p> <p>The case was submitted to the Court upon the opinions of Benjamin R. Nichols, published in the American Jurist, vol. 5, p. 262,' and of Willard Phillips, published in the American Jurist, vol. 6, p. 45, supporting the ground taken by the plaintiff; — and the opinion of Charles Jackson (formerly a justice of this Court) published in the American Jurist, vol. 5, p. 252, and a written opinion of William Prescott,' on the other side of the question ; also, Byrnes v. National Ins. Co. 1 Cowen, 265 ; Dickey v. New York Ins. Co. 4 Cowen, 222, 245 ; 3 Kent’s Com. 283; Brooks v. Oriental Ins Co. 7 Pick. 259.</p>

<p>ji assumpsit, the defendant, under the provisions of St. 1793, c. 75, § 4, filed a set-off, which merely stated, that the plaintiff was indebted to the defendant for u the amount of account dm as per books, $ 10,000.” It was held, that this was a sufficient“ account,” w Ihin the meaning of the statute, the object of such account being only to put on record notice to the plaintiff, that the defendant intends to avail himself of such set-off; and that if the plaintiff is at a loss to understand from the set-off, what demands the defendant intends to offer in evidence, he may have specific information by a bill of particulars.</p> <p>In the same action, the defendant, upon being required by the plaintiff, filed a bill of particulars of such set-off, among the items of which were three promissory notes of the plaintiff. -It was held, that the defendant was limited by the words of the set-off, to such demands as were entered in his books, and that, as these notes were not shown to be so entered, evidence of them was inadmissible in set-off.</p> <p>Where a defendant, upon being required by the plaintiff, filed a bill of particulars of his account in set-off, and the plaintiff allowed it to be filed, and the evidence on the part of the defendant to be taken, without making any objection, it was held, that he was not thereby precluded from objecting at the trial to the admission of proof of claims specified in the bill of particulars, but which were not embraced by the account filed in set-off.</p>

<p>This was an.action of covenant broken, brought for the use of Robert G. Mitchell.</p> <p>The plaintiff declares, that by an indenture made on November 1, 1828, between Lord, the plaintiff, as agent of Mitchell, of the one part, and Tyler and Binney, the defendants, and one Trueman, since deceased, of the other part, (after reciting that Lord, as the agent of Mitchell, had, on that day, with the advice and consent of Trueman, sold and given a bill of sale of the whole of the schooner Susan to Binney, for the sum of 1950 dollars, of which sum 950 dollars had been paid to Lord, and also reciting that Trueman claimed to. own a moiety of the schooner and had agreed to pay Lord 1000 dollars for the residue of the price of the schooner, with interest, within one year from the date of the indenture, unless he, Trueman, should before the expiration of that time legally establish his title to such moiety,) True-man, Tyler and Binney covenanted with Lord, that they would pay to him the sum of 1000 dollars within one year from the date of the indenture with interest, subject to the proviso, that if Trueman should, within one year, by any legal process or arbitration that might be agreed upon between the parties, legally establish his title to such moiety, then and in such case the sum of 1000 dollars should not be paid, nor any part of it, — and subject to the further proviso, that if at the end of one year any process for the purpose of deciding whether Trueman was the legal Owner of such moiety, should be depending and undetermined, then and in such case the payment of the 1000 dollars should be delayed until such process should be finally determined, and if by the termination of such process it should be found that Trueman was the legal owner of such moiety, then that sum should not at any time be paid ; and the plaintiff then avers, that Trueman did not, within one year, by any legal process or otherwise, legally establish his title to such moiety, and that at the expiration of the year, no process for the purpose of determining that question was depending and undetermined, and so the plaintiff alleges, that on November 1, 1829, the defendants (Trueman being then deceased) ought, according to their covenant, to have paid the plaintiff the sum of 1000 dollars, with interest, but that they have never paid any part thereof, and so have broken their covenant.</p> <p>The defendants plead, 1. non est factum ; on which issue s joined.</p> <p>2. That on April 23, 1828, Trueman and one Morgan were owners as tenants in common, each of an undivided moiety of the schooner Susan, of which Morgan was then master ; that on that day, while proceeding on a voyage, she was injured by the perils of the seas, and by reason thereof was carried into Key West, and that Morgan there, in his own wrong and without any legal authority from Trueman, or any justifying cause or necessity, undertook to sell and deliver her to one Greene, of Key West, who on June 4, 1828, unlawfully undertook to sell and deliver her to Mitchell, and that Mitchell then and there took possession of her and after-wards caused her to be sent to Boston and delivered into the custody of the plaintiff as his agent ; that afterwards True-man claimed to have possession of his moiety, in common with Mitchell as owner of the other moiety, but that Mitchell refused to permit him to have such possession ; that the indenture was made by the parties thereto, for the purpose of adjusting their several interests in the premises, as is therein set forth ; that Trueman, at the time of making the indenture and until bis decease, was, and since his decease his administrator has been, and still is, ready to agree with the plaintiff in the appointment of arbitrators, or to the commencement and prosecution of any suit at law or legal process, by means whereof it might or may be determined whether Trueman had title to a moiety of the schooner, according to the form and effect of the indenture, and that on September 2, 1829, before the expiration of. one year from the date of the indenture, the administrator, offered to the plaintiff to agree with him in the appointment of arbitrators, or in the commencement and prosecution of any action at law or legal process, by means whereof it might be determined whether Trueman had any title, but that the plaintiff then refused and ever since has refused to agree to the appointment of any arbitrators, or to the commencement and prosecution of any action at law or legal process for the purpose above mentioned.</p> <p>3. The third plea differs from the second, in alleging that the offer to agree in the appointment of arbitrators &c., was made by the defendants in behalf of the administrator to Mitchell instead of the plaintiff, and that Mitchell refused &c</p> <p>4. In the fourth plea, after setting out the sale' by Morgan, the claim by Trueman, and the making of the indenture, the defendants aver, that before the making of the indenture, an action at law had been instituted by Morgan against the Atlas Insurance Company, for a sum of money alleged to be due to him from the company under a policy of insurance, wherein the company had insured him against the loss of his moiety of the schooner by perils of the seas during the voyage upon which she was proceeding on April 23, 1828, in which suit he alleged a total loss of bis moiety on that day by the perils of the seas, and the necessary sale of the vessel by reason thereof; that that suit was pending and undecided on the day when the indenture was made, and that after the making of the indenture, Trueman and Lord agreed with each other, that that suit should be by them considered and taken to be the egal process, according to the indenture, whereby it should be determined whether Trueman had good title to a moiety of the vessel, and that if Morgan should prevail in that suit and recover judgment against the insurance company for indemnity for his moiety of the vessel, then Trueman should pay Lord the sum of 1000 dollars and interest thereon, as in the indenture provided, and that if the insurance company should recover judgment against Morgan, then Trueman should be thenceforth and forever discharged from any obligation to pay that sum under the indenture ; that before the expiration of a year after the making of the indenture, and before any judgment was rendered in that suit, the suit was discontinued by Morgan, without the knowledge of Trueman and without his default, and so became of no effect to determine whether he should be held to pay the 1000 dollars and interest thereon ; that from the time of the discontinuance of that suit until his decease, Trueman was, and since his decease, his administrator has been, and still is, ready to agree with the plaintiff in the appointment of arbitrators, or in the commencement and prosecution of an action at law or legal process, &c., and that on September 2, 1829, the administrator offered to the plaintiff to agree in the appointment of arbitrators, &c., (as ji the second plea.)</p> <p>The plaintiff demurs to the second, third and fourth pleas, and assigns for causes of demurrer : —</p> <p>1. That the pleas attempt to put in issue an immaterial point, or if they contain matters of defence, they are double, in this, viz. they allege an unjustifiable sale of Trueman’s moiety of the vessel, so that the acquisition of title by Mitchell is denied, and they also allege the performance of acts by Trueman and his administrator in excuse or justification for the alleged breach of covenant, which matters in excuse or justification are not a consequence of the acts and things al ■ Ieged to have been done and to have existed before the making of the indenture : —</p> <p>2. That neither of the pleas denies, confesses or avoids the substantial matter in the breach of covenant alleged : —</p> <p>3. As to the fourth plea in particular that no other issue can be offered or taken upon it, than can be offered and taken upon the second plea.</p>

<p>Covenant broken; in which the plaintiff declares upon a deed of a tract of land in Sheffield, dated April 1, 1815, with covenants of seisin and warranty, given by the defendant to Abel Thorp, and a deed of the same land, containirg the like covenants, dated September 18, 1815, from Thorp to the plaintiff. The declaration sets forth a breach of the covenants of seisin and warranty.</p> <p>The defendant pleaded first, non est factum.</p> <p>The second plea averred, that on April 10, 1809, Daniel Sparks entered upon the premises, under a deed of warranty from the defendant, and on April 16, 1809, died seised thereof, and intestate, leaving a widow, Electa, and five children, to wit, Abigail, Maria, Levina, Angelina and Luanna ; that the premises vested in the children as an estate of inheritance, subject to the widow’s right of dower, and that at the date of the deed from the defendant to Thorp, they were still seised thereof; and that the defendant was not seised thereof, and so his covenant of seisin was broken at the time of the execution of the deed.</p> <p>The third plea alleged, that Sparks, before April 10, 1809, entered upon the premises, and became seised thereof by disseisin, and that a freehold estate in the premises descended to his children,' who continued seised thereof at the time of the execution of the deed to Thorp, &c.</p> <p>The fourth plea, after stating the conveyance to Sparks, his death and the descent of the estate to his heirs, alleges that, on April 1, 1815, after Electa, the widow of Sparks, had intermarried with Noah Sellick, and at the joint request of Electa, Sellick and Thorp, the defendant was induced to destroy the deed to Sparks, and to execute the deed to Thorp, without any other consideration whatever than $ 24 named in the deed to Sparks ; that at the same time, Sellick executed a bond to Thorp, in the penal sum ol $ 300, conditioned, that whereas Thorp had purchased the premises, and bad executed and delivered his promissory notes to Sel lick for $ 150, and whereas the fee of the premises was in the heirs of Sparks, who were all minors, now if such heirs should convey to Thorp their respective shares in the estate, within six months after they should respectively become of age, and if Electa should, within two months from the date of the bond, release to Thorp her right, of dower in the premises, then such bond should be void ; that at the same time when Thorp executed his deed of the premises to the plaintiff, be also assigned to the plaintiff this bond, and authorized him to collect the penalty thereof in the name of Thorp, but for the sole use of the plaintiff.</p> <p>Upon each of these pleas, issue was joined.</p> <p>At the trial, before Shaw C. J., the plaintiff produced the deed from the defendant to Thorp, and it appeared that the covenant of warranty was as follows: — “And furthermore I, the said Candee, do by these presents, bind myself &c. to warrant and defend the above granted and bargained premises to him the said Candee ” &c.</p> <p>For the purposes of the trial, the jury were instructed, that this being probably a mistake apparent upon the face of the deed, they would be warranted in finding a verdict for the plaintiff upon such covenant. It was also objected, that this was a variance from the declaration, but the objection was overruled.</p> <p>On the issue on the first plea, the jury found for the plaintiff ; on the issues on the second, third and fourth pleas, the jury found a verdict for the defendant.</p> <p>It was agreed between the parties, that if the Court should be of opinion that the plaintiff was entitled to recover, the damages were to be assessed under the direction of the Court. For this purpose, it was further agreed or proved, that the premises were conveyed by the plaintiff, with covenants of seisin and warranty, after he had received the deed from Thorp, and that the grantees were evicted from a portion thereof by the widow and two of the heirs of Sparks ; and that judgment had been recovered by such grantees against the plaintiff, upon his covenant of seisin, for $39*75, damages, and $ 14*20, costs.</p>

Assumpsit upon a promissory note made by the defendant, payable to Lucy Sherwood or bearer, dated January 2, 1827, for 200 dollars. Plea, the general issue. At the trial, before Putnam, J., the defendant contended that the plaintiff was not entitled to recover as the bearer of the note.

<p>Where, during the pendency of an action in court, the declaration was amended, il was keldf that such amendment, although it embraced a new demand, would not discharge the bail, if judgment was rendered on the original demand only ; for the bail are liable only to the extent of the original demand, and cannot therefore be injured by the amendment.</p> <p>In an action by a judgment creditor against the sheriff for not delivering over the bail-bond taken in the original action, the judgment debtor having avoided on the exBCUtion, the sheriff will not be allowed to give in evidence, in mitigation of damages, that the judgment débtor has been insolvent from the time of the rendition of the judgment against him.</p>

<p>A libel was filed by a wife for a divorce, on the ground of the desertion and cruel neglect of the husband; and it appeared, that the parties were married in the county of Berkshire, and after residing there for some years, took up their residence in the State of New York, where the alleged desertion and cruel neglect took place 5 that the wife thereupon returned into that county to live, and filed her libel there, but that at the time when it was filed, the husband retained Ms domicile in New York; and that such desertion and cruelty would be no ground of divorce by the laws of New York. The Court refused to decree a divorce a mensd, et thoro, on the ground that it had not jurisdiction of the case.</p> <p>The maxim, that the domicile of the wife follows that of the husband, will not be applied to oust the Court of its jurisdiction, in case of a libel by a wife for a divorce. Semble.</p>

<p>The declaration by one of two defendants, when an account against them barred by the statute of limitations was presented to him, that he had paid enough of the other defendant’s debts, was held not to amount to a new promise.</p>

<p>The petition sets forth, that the county commissioners located and established an alteration in a county road in Adams, over the respective lands of Anthony, the petitioner, and several other individuals ; that they all applied to the commissioners to hear and finally determine upon the location by a jury ; that a jury was accordingly empannelled ; that the jury increased the damages allowed by the commissioners, to all the petitioners for a jury except Anthony, and that over his land they altered the location of the commissioners ; that the verdict was returned to the Court of Common Pleas, and the court accepted the same so far as it concerned all the petitioners except Anthony, but that that part of the verdict which altered the location of the commissioners on his land was set aside ; that the clerk of the court returned a certified copy of the verdict, with the adjudication thereon indorsed, to the commissioners ; and that Anthony made application to the commissioners to order a new jury in the premises, but that they refused to make such order ; wherefore Anthony prays this Court to issue a mandamus to the commissioners, requiring them • to order a new jury.-</p> <p>And now, upon the hearing, it was conceded that the facts stated in the petition were true.</p>

<p>The plaintiff's declaration set forth by mistake a demand of twelve dollars instead of twelve hundred, and in the Court of Common Pleas he recovered a judgment for nearly twelve hundred dollars 5 from which judgment the defendant appealed, but neglected to enter his appeal} and upon the plaintiff's complaint to this Court for affirmation of the judgment, the Court refused to allow him to amend the record of the Court below by inserting the word hundred after twelve ; and also, inasmuch as the judgment was erroneous on the face of it, refused to affirm the judgment.</p>

<p>By a written contract between B and R, B agrees to furnish R for one year with wool, to be worked into satinets, and R is to deliver to B all the satinets which the wool will make, and is to find and pay for warps for the same. For working the wool, finding warps, Sec., B is to pay R forty per cent, on the sales of the satinets. Each is to pay half the charges. B is to have the whole direction of the sales, and should he make sales himself he is to have one and a half per cent, on forty per cent, of the sales. In an action against B and R for the price of the warps furnished by the plaintiff to R, it was held, that B was not a partner of R, and consequently was not liable to the action.</p> <p>By virtue of St. 1834, c. 189, a plaintiff in an action, founded on contract, brought against several defendants, might be allowed to discontinue as against one who had been defaulted, and proceed against the others.</p>

Assumpsit. It was objected to the verdict in this case, that one of the jurors had served within three years before his return on the venire to serve at the court at which this case was tried, and it was contended that by force of the St. 1824, c. 119, such juror was not eligible.

This was an appeal from a decree of the judge of probate for the county of Hampshire, allowing an account presented by the appellee as executor of the last will of Cyprian Parish. The executor claimed in his account, and was allowed, as a debt due to himself, the amount of a promissory note foi fiOO dollars, signed by the* testator, payable in one year after his death.

<p>Aü original writ was indorsed by I. B. B., who was not the plaintiff in the writ, and the defendant, having recovered judgment in the Common Pleas against the plaintiff for costs, sued out a writ of scire facias against I. B. B. to recover the same, in which it was alleged, by way of recital, that u I. C. B. indorsed the original writ in the said action.” 1. B. B. was defaulted in the Common Pleas, and the case being brought up to" this Court on a motion in arrest of judgment, because it was not averred that the indorsement was made by I. B, B., it was held, that the scire facias in such a case was so far a judicial writ, that it was competent for this Court to look at the record upon which it was founded, and the misrecital was considered to be a mere misprision of the clerk and the motion in arrest was overruled.</p> <p>It is not necessary to allege that the defendant in the scire facias indorsed as agent or attorney, for the St. 1784, c. 28, § 11, having required that an original writ shall be indorsed by the plaintiff or by some agent or attorney, whoever indorses, not being the plaintiff, is presumed to indorse as agent or attorney.</p> <p>Nor is it necessary to aver, that on the avoidance of the plaintiff in the original writ the indorser became liable, this being an inference of law.</p> <p>Nor is it necessary to aver negatively, that the judgment against the plaintiff in the original writ has not been reversed.</p> <p>It is necessary to aver, that such judgment has not been satisfied $ and this is sufficiently staled by averring that the necessary measures (specifying them) have been taken to obtain satisfaction, and that they have proved unavailing.</p> <p>It is not necessary to aver, that by force of any Jaw of the commonwealth the indorser " became liable, the statute being a general law and the liability being merely an inference of law.</p> <p>It is not necessary to aver that the original writ was indorsed before service, for the allegation that it was indorsed, imports an indorsement, conformably to the statute, before service.</p>

Assumpsit on a promissory note, dated January 8, 1830, for $ 137-50, by the payee against the maker. Trial before Shau> C. J. The defence was, that the note was given in consideration of a limited right to the use of a patent machine for breaking and dressing hemp ; that the patent was void ; that if good, the plaintiff had no valid title to assign the right; and therefore that the note was given without consideration.

Assumpsit upon three promissory notes made by the late firm of Samuel and John Gatlin. The action was commenced against both members of the firm, but process was served on John Gatlin alone, and the action was prosecuted against him only. The writ was dated August 22, 1831.

<p>Scire facias against the bail of one Wilson. In the original writ the sheriff was commanded to attach Wilson, to answer to “ Melvin Lord and John C. Holbrook and one Eleazer J. F. Richardson deceased, booksellers and copartners, doing business under the name and firm of Richardson, Lord and Holbrook,” in a plea of the case, for that Wilson being indebted to the plaintiffs upon an account, in consideration thereof “ promised the said Lord and Holbrook, the surviving partners of the said firm of Richardson, Lord and Holbrook, to pay them the same,” but have refused, &c., to the damage “of the said Lord and Holbrook.” Upon this writ Wilson was arrested, and he gave bond, with the defendants as sureties, to answer to the plaintiffs as described in the writ. The action was duly entered, and Wilson appeared ; and upon leave to amend, the plaintiff’s attorney struck out the words printed above in italics. In this amended state of the record judgment was rendered against Wilson upon a default. The cause of action in the original writ was a debt due to Lord and Holbrook, who after the decease of Richardson in 1829, continued to transact business under the name of Richardson, Lord and Holbrook.</p>

<p>A deed of wild land executed and acknowledged by a grantor who had no right to the land, and duly recorded in the registry of deeds, and a mere entry by the grantee without an open exclusive occupation manifested by fencing or otherwise, do not amount to a disseisin against the will of the true owner.</p> <p>The registry of a deed of land executed and acknowledged by a grantor who had no right to the granted premises, is not constructive notice to the true owner that such conveyance has been made.</p> <p>The registry of a deed is constructive notice only to after-purchasers under the same grantor.</p>

<p>By a written agreement the defendant was to carry on the plaintiff’s farm, and was te nave for his labor one half of the produce 3 the plaintiff was to furnish him with ai. seeds necessary to sow, and the defendant was to pay the plaintiff for one half of the seeds sown or return one half after harvest, at the defendant’s option5 and the plaintiff was to furnish the defendant with grain, until he could harvest the crops, and was to receive the same quantity at harvest, or the value in money. The plaintiff furnished a parcel of rye and a parcel of oats, a part of which was sown and the residue used by the defendant} also a quantity of hay 3 and the defendant raised a quantity of oats on the plaintiff’s farm, and sold them. In indebitatus assumpsit brought while the special contract was in force, it was held, that the plaintiff could not recover for the rye and the first parcel of oats, because they were embraced by the special cpnlract and the defendant had a right to pay for them in kind} but that he could recover for the hay, because it was not included in the special contract, and for half of the last parcel of oats, because by the sale the defendant had put it out of his power to deliver them in kind.</p> <p>Where the parties had agreed that a default should be entered, subject to the opinion of ae Court, and that judgment should be rendered for the plaintiff for one of two sums, the Court nevertheless, on motion of the plaintiff, granted a new trial, holding such agreement to be subject to the order of the Court.</p>

<p>Case for fraud and deceit in the sale of a patent right. Plea, the general issue. The jury returned a verdict for the plaintiffs.</p> <p>The facts of the case appear sufficiently in the opinion of the Court, which was delivered by</p>

<p>If a party in possession of land under a judgment in a writ of entry, sows the lana during the pendency of a writ of right against him, and the demandant in the writ of right recovers judgment, and obtains seisin and possession before the crop is severed, the demandant is entitled to the crop.</p> <p>So if the land is thus sowed by the grantee of the party who recovered in the writ of entry, and the recovery in the writ of right is against such grantee.</p>

<p>Bill in equity. The bill alleges, that in 1657, Edward Hopkins, Esquire, a resident in the kingdom of Great Britain, by his last will bequeathed and devised as follows : “ And the residue of my estate there (New England) I do hereby give and bequeath to my father Theophilus Eaton, Esquire, Mr. John Davenport, Mr. John Cullick and Mr. William Goodwin, in full assurance of their trust and faithfulness in disposing of it, according to the true intent and purpose of me the said Edward Hopkins, which is, to give some encouragement in those foreign plantations for the breeding up of hopeful youth, in a way of learning, both'at the grammar school and college, for the public service of the country in future times. My further mind and will is, that within six months after the decease of my wife, five hundred pounds be made over into New En gland, according to the advice of my loving friends Major Robert Thompson and Mr. Francis Willoughby, and conveyed into the hands of the trustees before mentioned, in further prosecution of the aforesaid public ends, which, in the simplicity of my heart, are for the upholding and promoting of the kingdom of the Lord Jesus Christ in those parts of the earth.”</p> <p>That in 1664, Davenport and Goodwin, being the only surviving trustees, by an instrument under their hands and seals, after reciting the trusts and powers given to them in the will, proceed to execute the trust and dispose of the property confided to them, -in manner following : “ We therefore, the said John Davenport and William Goodwin, being the only survivors of the said trustees, for answering the trusts committed to us by the last will and testament of our worthy honored friend, do order and dispose of the said estate as follows &c. (disposin >' of a portion of the property confided to them, and then proceeding :) We do further order and appoint, that the rest of Mr. Hopkins bis estate, both that which is in New England and the 500Z. which is to come from Old England when it shall become due to us after Mrs. Hopkins her decease, be all of it equally divided between the towns of New Hi vei and Hadley, to be in each of those ■ towns respectively managed and improved towards the erecting and maintaining of a grammar school in each of them.”</p> <p>That in 1664, John Barnard, in his last will, devised “ unto the town of Hadley for promoting and advancement of a school for learning, twelve acres, one rood and nine poles of meadow land, perpetually to be and remain to the use aforesaid, lying within the lands of the township of Hadley ; six acres two roods and twenty-nine poles lying in the meadow called Hockanum ; another parcel in the meadow called the Great Meadow, containing five acres, two roods, twenty poles ; ” and that in a codicil he devised as follows : “To the use and towards the maintenance of a school, I give perpetually my piece of land lying in the Forlorn ; as also my piece of land that lies in Hockanum ; and also that land I have given to a school; if there be not a school in Hadley at the decease of my wife, then the land to be improved by four of the poorest men in town till there be a school set up.”</p> <p>That in 1664, Nathaniel Ward devised as follows : Item, to the town of Hadley I give, after the decease of my wife, my now dwellingbouse, with about five roods or an acre and half of land on which it standeth, and my lot of five acres, more or less, in north meadow, and my lot in Hockanum, containing nine acres, more or less ; to be improved towards the maintaining of a school ever.”</p> <p>That in 1666, the town of Hadley passed the following vote : “ The town have granted to and for the use of a grammar school in this town of Hadley, and to be and remain perpetually to and for the use of the said school, the two little meadows next beyond the brook commonly called the mill brook, and as much land to be laid to the same as the committee chosen by the town shall in their discretion see meet tnd needful ; provided withal, it be left to the judgment of he said committee, that so much of the second meadow shall be excepted from the said grant as that there may be a feasible and convenient passage for cattle to their feed.”</p> <p>That in 1669, by agreement between Goodwin and the town of Hadley, five persons were chosen, partly by Goodwin and partly by the town, as a joint committee, “ who together with Goodwin while he lived,” and after his decease, should jointly and together have the ordering and full dispose of the estate or estates given by Mr. Davenport and Mr. Goodwin (as trustees as aforesaid to Mr. Hopkins) to this town of Hadley, or any other estate or estates that ever may be given, either by the town itself, or any other donor or donors, for the use, benefit and maintenance and promoting a grammar school, to and for the use, and in the town of Hadley.” That it was also agreed that the committee should have power to fill all vacancies in their number occasioned by death.</p> <p>That in 1675, Henry Clark devised as follows: “ My nine acre lot in Hockanum in the town of Hadley, and two acres and an half of my lot in the lower end of Great Meadow in Hadley, on the nether side of the lot, I give to the town of Hadley, committing it to the care, disposing and ordering of Lieut. Samuel Smith, Ensign Cooke, Deacon Tilton and Mr. John Russell junior, to be by them disposed of (in case they quietly keep and remain in their committee-ship for Hopkins school) unto Hopkins school, for Hadley ; but if they be put out of or disturbed in that committee-ship, then to be otherwise disposed of as they or the survivor of them see meet, for the good of the town.”</p> <p>That the committee above described and their successors, (ontinued to have the management of the property and to ap- [# opriate its annual income agreeably to the uses and for the purposes above mentioned, until 1816, when the committee, in concurrence with the town of Hadley, petitioned the legislature for an act of incorporation ; and an act was accordingly passed, entitled “ an act to incorporate the trustees of Hopkins Academy ; ” that the trustees of the academy succeeded to and accepted of the trust above described ; and that in and by the act of incorporation, all the lands and moneys, which had been theretofore given or subscribed to the committee before mentioned, for the use of the school, are confirmed to the trustees of the academy and their successors for ever, “ for the uses designated by the donors.”</p> <p>That the plaintiffs hoped the trustees would have managed the property and appropriated the annual income thereof to and for the uses' designated by the donors, and according to the agreement between Goodwin and the town of Hadley, for the use, benefit and maintenance and promoting a grammar school to and for the use of the town and its inhabitants, hut that they refuse, and have for a long time refused, to administer the trust according to the directions of the donors and to appropriate the annual avails of the property to and for the exclusive use and benefit of the plaintiffs, and have appropriated the same, as well to the use and benefit of others, as of the plaintiffs, and sometimes in exclusion of the plaintiffs. ></p> <p>The bill then prays for disclosure and relief.</p> <p>The defendants, in their answer, admit that Hopkins, Barnard, Ward, and Clark made the several devises, and that the town of Hadley made the grant, set forth in the bill.</p> <p>They admit, that in 1664, Davenport and Goodwin, for the execution of the trust created by the will of Hopkins, made an instrument containing the clause recited in the bill, but they allege that, after that clause, the instrument proceeded as fol lows: “And. the management thereof to be in the hands of our assigns, which are for that at New Haven at present, (and so to continue unless some other way be by us agreed on,) the town court of New Haven, consisting of magistrates and deputies and the officers of the church at New Haven, and for that at Hadley, John Russell junior, pastor of the church of Christ at Hadley, Lieut. Samuel Smith, Andrew Bacon and Peter Tilton ; these we the said John Davenport and William Goodwin do appoint and constitute to be our trustees for the ordering of said estate and carrying on the work, wherein it is to be employed, each in their several towns respectively , hereby committing to them and investing them with full power to act in the same, in their several towns respectively, in all respects, as ourselves, both in managing the trust themselves and in choosing successors from time to time, as they shall see meet, who, or the major part of whom (or, in case at any time the rest of the trustees being taken away before others be chosei., any of whom) may and shall have full power to pursue and put in execution the pious end and intendment of the worthy donor ; yet reserving to ourselves while we live, the full power of a negative vote for the hindering any thing that may cross that end.”</p> <p>The defendants further say, that the agreement made .n 1669, between Goodwin and the town, was as follows : “ Mr. Goodwin proposeth as that wherein he is willing to concur, viz. as to the ordering the estate distributed and given by Mr. Davenport and himself (as trustees of Mr. Hopkins) to the town of Hadley, donors of the said estate, both for the present and future, he the said Goodwin hath chosen three persons, or will choose them, to have power in the premises ; he is willing also that the town should give their approbation of said persons ; as also that the town should make choice of two more able and pious men, which five persons, together with himself, shall have the sole and full dispose and management of the estate above expressed, in all respects, for the end to which it is bequeathed. 2. As also the said five persons, together with himself while he lives, to have the sole dispose and management of all other estate or estates given by any donor, or that may be while they survive, to the town of Hadley, for the promotion of literature or learning. 3. These five persons to continue, abide and remain in the work above expressed, till death or other providence of God remove any of them, and the survivors to choose to themselves the full number aforesaid. 4. Mr. Goodwin desires the name of the school may be called, the Hopkins School.” Which communication being so made to the town of Hadley on March 20, 1669, the town, on the 29th of the same March, voted, “ that Mr. Goodwin be sent to by the town, to know the persons he will make choice of as respects the premises. He returns, that he has chosen Mr. John Russell, pastor of the church at Hadley, Lieut. Samuel Smith, and Aaron Cook ; and the said town voted their approbation of Mr. Goodwin’s choice. The town also voted Nathaniel Dickinson and Peter Tilton to ioin with the persons before mentioned, as a joint committee, who, together with Mr. Goodwin while he lives, and after his decease, shall jointly and together have the ordering and full dispose of the estate or estates given by Mr. Davenport and Mr. Goodwin (as trustees as aforesaid to Mr. Hopkins) to the town of Hadley, or any other estate or estates that are or may be given, either by the town itself, or any other donor or donors, for the use, benefit and maintenance and promoting a grammar school to and for the use and in the town of Hadley ; as also jointly and together to do, act and conclude, finish and execute, any thing respecting the premises, faithfully and according to their best discretion. Voted also by the town, that as to the five persons, before expressed, if any decease or be otherwise disabled by the providence of God, the rest surviving shall have the sole choice of any other in the room and place of those surceasing, to the full number of five persons, provided they be known discreet, pious, faithful persons. And the town directed Mr. Clark and Peter Tilton to present the premises to the court to be recorded.”</p> <p>They further state, that in 1671, the town granted a piece of land near the corn mill, for the erecting a dwellingbouse upon the same for a miller, which grant had this provision, viz. that whatever land or estate, with the said house and mill &c„, that hath been given by the town of Hadley, or by any other, for the maintaining a grammar school there, be ordered, managed and disposed by the present school committee in being, and after them by their successors whom they shall choose, pro vided they be still pious, discreet, .faithful men ; otherwise the said grant to be void and invalid to the end and purposes aforesaid.”</p> <p>They further state, that at a county court held at Springfield in September, 1682, an order was passed accepting and allowing a return from the committee of the Hopkins school, and taking notice that John Russell, Aaron Cook, Philip Smith and Samuel Partridge constitute the committee and approving of them all, and desiring their further management and carrying on of the affairs of the school from time to time, which the court would be always ready to promote and encourage as need might require.</p> <p>They further state, that while the care of the school was thus lawfully in the hands and under the oversight of a committee with full powers to manage the same without the intervenon of the town, yet about August 23, 1686, the town voted “ to take into their own hands, to manage, order and dispose to the use of a school in the town of Hadley, all the estates of houses and lands bequeathed and given by any donor or do nors, in their last wills and testaments, to the town of Hadley, or to a school in said town, as the legacy of Nathaniel Ward, John Barnard and Henry Clark which interference on the part of the town induced the committee of Hopkins school to apply to the county court held at Springfield in September, .686, being a court having jurisdiction of the premises, whereupon the following order was passed, viz. “ The declining estate of Hopkins school in Hadley being presented to this court by the Rev. Mr. John Russell, Aaron Cook, Joseph Kellogg and Samuel Porter, the committee of said school, for that some of Hadley do disturb or obstruct the management of the estate of said school, therefore this court do order and declare, that the whole donations to a school there, from the charitable donors, be all employed and improved for and towards the maintenance of the grammar school in Pladley ; it appearing that the intent of Mr. Henry Clark, in what he gave to a school, was, that it should go and be employed to the said school called Hopkins school. Also the like doth appear as to goodman Ward’s gift. And goodman Barnard’s gift may as well be taken to and for that school as any other. Wherefore this court order, that all said gifts and others, with the land given by Hadley town, be all accordingly improved by the aforesaid committee.”</p> <p>They further state, that upon application duly made to the president and council of his (then) Majesty’s territory and dominion of New England in America, upon the concerns of the Hopkins school and the funds thereof, it was, on December 8, 1686, ordered by the'president and council, “ that the ccram tlee for Hopkins school be and remain the feoffees of the grammar school in said town, and that Mr. Partridge be and hereby is dismissed from any further service in that mater, and that the said committee make report of the present estate of Mr. Hopkins’ and other donations to said school, (which, having been orderly annexed to the grammar school, are hereby continued to that service,) unto the next county court of Hampshire, who are hereby empowered to supply the place of Mr. Partridge with some other meet person in Hadley, and that the said court do find out and order some me thod for the payments of Boltwood’s expenses upon the mill, tha the mill farm and other lands given to the school may return to that public use ; the president and council hereby declaring it to be beyond the power of the town of Hadley,, or any other, to divest any of the lands or estate, or the said mill stream or privileges thereof, (which are legally determined to this said grammar school,) to any other use whatsoever; the president and council judging the particular gifts in that town a good foundation for a grammar school, both for themselves and the whole county ; and that the grammar school can be no otherwise interpreted, but to be a school holden by a master capable to instruct children and fit them for the university. Council House, Boston, December 6, 1686.”</p> <p>They further state, that at a county court held at Northamp ■ton on June 8, 1687, an order was made, (which is set out at length in the answer,) reciting the proceedings of the president .and council, and of the county court held at Springfield in ■September, 1686, and that the court held at Northampton ap :proves of the same, and concluding as follows ; “ It is there 'fore hereby ordered, that those persons of Hadley who have ■any ways meddled or intrenched upon the school estate there •of, which ought to be managed by John Russell, Aaron Cook, Joseph Kellogg and Samuel Porter, the feoffees of said school, (to whom this court of sessions, according to orders, have now by the consent and choice of the rest of the committee added Chiliab Smith of Hadley, to make up the number of five feoffees,) do deliver up all the estate they have enter id on, forthwith, into the hands and ordering of the feoff ees, on penalty of all damage that may come to themselves by neglect thereof.” And the defendants therefore allege, that as, from their obvious nature, the donations were, and by the judgment of the president and council, and of the court held at Northampton, they were adjudged to be, “a good foundation for a grammar school, both for themselves and the whole county,” and as it was further adjudged, “ that a grammar school can be no otherwise interpreted but to be a school hold on oy a master capable to instruct children and fit them for the university,” the plaintiffs should not now be allowed to claim that the committee, or those who have succeeded them in the trust in question, should apply the trust fund exclusively to the use of the inhabitants of Hadley.</p> <p>The defendants admit that an act of the legislature was passed on June 14, 1816, (St. 1815, c. 104,) to incorporate the trustees pf Hopkins academy, by which it is provided-, that there shall be established an academy in the town of Hadley apon the foundation of Hopkins donation school, and that the committee of the school be incorporated into a body politic by the name of The Trustees of Hopkins Academy; and that al. the lands and moneys heretofore given or subscribed to the committee for the use of the school, or which shall be hereafter given, granted and assigned to the trustees for the use of the academy, shall be confirmed to the trustees, and their successors in that trust, for ever, for the uses designated by the donors, and that they shall be further capable of taking and holding estate, real or personal, provided the annual income of the same shall not exceed 5000 dollars, and that the rents and profits thereof shall be applied in such a manner as that the designs of the donors may be most effectually promoted. And the defendants aver, that this act was procured upon the petition of the committee of the donation school, acting in concurrence with the town, pursuant to a vote of January 1, 1816, “ that the town will unite with the committee of the donation school in petitioning the legislature for the establishment of an academy in this town.” And the defendants represent, that the town, in thus uniting with the committee, intended that all the funds in the hands of the committee should De thereafter applied to maintaining an academy in the town, upon the footing and system of other academies in New England ; and that in consequence of the town’s concurrence with the committee in obtaining the act of incorporation, ■ donations had been made by the legislature and by individuals, for the general purposes of an academy, and it would be a fraud upon such donors, if the town should now withdraw all the funds of the donation school and appropriate them to the exclusive use of the inhabitants of Hadley.</p> <p>They further allege, that the trustees of Hopkins academy established a grammar school in Hadley, and have from time to time furnished the best instruction their ability permitted, in Latin, Greek, astronomy, ancient and modern history, logic, ancient and modern geography, natural, moral and intellectual philosophy, rhetoric, geometry, chemistry, arithmetic, composition, reading, declamation, and such other studies as are usually taught in academies ; that to this school every person in Hadley, of proper age and qualifications to receive benefit from the school, could be admitted, and none such have ever been refused ; that the trustees have supposed it to be their duty to have, at all times, a master capable to instruct children and fit them for our university or some of our colleges ; that the expense of such instruction has at all times more than exhausted the whole annual income of the funds in the hands of the trustees, and the balance of the expenses has been assessed on the scholars as tuition fees ; that it is true the school has been resorted to by youth from other towns, but this has not only in no way been detrimental, but, on the contrary, has been highly beneficial, inasmuch as the excess of expenses of instruction over the income of these funds, instead of being assessed wholly upon the scholars who are inhabitants of Hadley, has been apportioned among all the scholars, while the opportunities for instruction have been in no degree lessened.</p> <p>In an amended bill the plaintiffs allege, that no record is to be found of any such judgment of the president and council of New England, as is stated in the answer of the defendants, but that, from writings which have been preserved, it appears that there was a controversy between the town of Hadley and the committee above mentioned, upon the point whether the town had a right to take into their hands and management the property mentioned in the original bill, and appropriate the proceeds to the support of a common school in Hadley, but that the point whether the committee were bound to administer the funds and appropriate the avails for the support of a grammar school for the exclusive use of the town, was not drawn in question, nor was the town heard thereon ; that the declaration of the president and council, that the donations were a good foundation for a grammar school for the whole county, was extrajudicial and not authorized by the issue before them ; that at the time of the several donations mentioned in the original bill,-the town of Hadley embraced the territory which now constitutes, besides the present town of Hadley, the towns of Amherst, South Hadley, Granby, Hatfield, Williamsburgh and Wbateley, and that some individuals in these towns might have claimed that the donations were to be appropriated for the common benefit of all these towns, and that under such impressions students from these towns might have occasionally attended the school; that the town of Hadley has by no act whatever recognised the right of the committee or trustees to admit into the school or academy students from any other place than Hadley, and that, as the plaintiffs believe, prior to the act of incorporation, no students, except from the towns above mentioned, ever attended the school under a claim of right; that the plaintiffs voted to concur with the committee in an application to the legislature for an act of incorporation, in the belief that the funds could be better managed by a corporation than by a committee, but without any intention of surrendering their right to the exclusive use and benefit thereof, and that the act was cautiously framed with a view to secure the exclusive right of the town.</p> <p>In their answer to the amended bill, the defendants state, that there cannot be found at Boston, any record of the judgment of the president and council, and the reason is, because there is a loss of the public records of the general court, and also of the council records, during the period from May, 1686, to 1689, when the affairs of the province were managed by a president and council; but that full transcripts of records of the proceedings stated in their former answer, are found in an ancient book purporting to be records of the county court of pleas and sessions holden at Northampton for Hampshire, for June, 1687, and also in an ancient book of records kept by the donation committee, purporting to contain an account of die various donations for the school, and of the various judgments of the president and council, and of the county courts of Hampshire, respecting the same ; that they have no knowledge that some of the inhabitants of the other towns formerly constituting a part of Hadley claimed a common right in tl sse funds, any further than appears from their previous answer that in admitting students they have not confined themselves to the limits of Hampshire, in its former extent, but have adopted as their guide the will of Edward Hopkins, which expresses the object of his donation, in the manner before stated ; and that the question of the school being a public school for others than those residing in Hadley, must have been in controversy between the town and the committee before the president and council, at the time of making the adjudication declaring it a public school, as set forth in the former answer.</p> <p>The plaintiffs filed a general replication.</p> <p>At the hearing the defendants read several depositions, and introduced a book of records of the county court, reciting the proceedings of the president and council, and containing the adjudication of the county court thereon, as set forth in the pleadings ; also a certificate of the secretary of the commonwealth, that there are no records of the proceedings of the council from May, 1686, to 1689.</p>

<p>A negotiable note payable to three payees may be legally transferred by an indorsement by two of them to the third payee and a stranger3 and if this were doubtful, the further indorsement by the third payee to the stranger will clearly pass the property to him.</p> <p>The maker of a negotiable note, appearing, on the face of it, to have been given in consideration of the transfer of a patent right which proved to be of no value, cannot set up this want of consideration as a defence to an action by a bond Jide indorsee. The facts, that a negotiable note appears on the face of it to have been given for a patent right, and that it has been indorsed to be at the risk and cost of the indorsee, will not authorize a jury to infer that the indorsee had any knowledge or reason to suspect that the patent right was of no value and the note without consideration.</p>

Bill in equity. The bill alleged, that on December 10, 1831, Abner Goodell bought at a public auction, certain real estate situated in Northfield and Erving’s Grant; that a conveyance thereof was subsequently made to him by Aaron Kings-bury, the vendor ; that the purchase was made for the joint and equal benefit of himself and the three plaintiffs, the plaintiffs having actually paid and become obligated to pay three quarters of the sum of $2000, which was the amount of the…

<p>Debt on a judgment against the intestate.</p> <p>In the Court of Common Pleas, it appeared that the estate of the intestate was represented to be insolvent; that the plaintiff presented his claim against the estate to the commissioners of insolvency appointed in consequence of such representation ; that the claim was rejected ; that the plaintiff having filed due notice at the probate office, commenced this action at the next term of the Court of Common Pleas ; and that it was agreed by the parties, that judgment should be rendered for the plaintiff, as .upon default. It further appeared, that the estate was actually insolvent.</p> <p>The question submitted to the Court of Common Pleas was, whether judgment should be rendered against the defendant for costs, de bonis propriis, or not ; and that Court adjudged, that the plaintiff was not entitled to such judgment.</p> <p>To this decision the plaintiff excepted.</p>

<p>Where in pursuance of the provisions of St. 1785, c. 52, regulating the erection of fences, the plaintiff had, in consequence of the neglect of the defendant, erected the portion of the fence between their lands, which was assigned to the defendant by the fence viewers, and the fence viewers, afterwards, upon the application of the plaintiff, but without notice to the defendant, appraised the value of this portion and ascertained the amount of their fees, it was held, in an action brought by the plaintiff under the statute, to recover double the amount of such valuation, &cZ, that such appraisement was void as against the defendant, although the statute does not, expressly, require notice thereof to be given to the defendant.</p> <p>It seems, that land which has lain in a common field de facto for a series of years, cannot be excluded therefrom merely by an allotment made in pursuance of a vote of the proprietors of the general field.</p> <p>It seems also, that under St. 1785, c. 52, the proprietors of a common field, in their corporate capacity, or as tenants in common, and not the individual proprietors holding portions of the common field in severalty, are liable, so far as regards the owner of lands adjoining the common field, to the duty of maintaining the partition fence between such portions of the common field and such adjoining land.</p>

This was an action on St. 1786, c. 81, § 7, to recover damages for an injury sustained by the plaintiff, in February, 1830, in consequence of a defect in a highway in the town of Russell.

<p>Assumpsit to recover the amount of a promissory note, dated May 12, 1830, made by the defendant, payable to the plaintiff or order, for $ 169'34. Trial before Morton J., upon the general issue</p> <p>It appeared that the plaintiff and the defendant were in habitants of West Springfield, at the time when the note was given ; that the defendant still continued to be an inhabitant of that town ; that on May 12 and 19, 1830, the plaintiff took deeds of certain land in Suffield, in Connecticut; that he was regular!/ put under guardianship by the court of probate, as a person non compos mentis, on June 1, 1830 ; at which time he had his domicile in West Springfield ; that he owned real estate in that town ; that he was unmarried ; and that since he had been put under guardianship, he had boarded in Suffield in the summer, working upon his land there, and in West Springfield in the winter.</p> <p>The defendant offered to prove that the plaintiff was not non compos mentis, but that he was before and at the time when the guardian was appointed, and had been ever since, of sound mind and capable of managing his own concerns. But the judge rejected the evidence, and ruled that the decree of the court of probate was conclusive.</p> <p>It further appeared, that in May, 1831, the defendant paid to the plaintiff, in Suffield, the amount of this note and took it up, the same being then in the possession of the plaintiff. The defendant contended, that he had a legal right to pay the note to the ward, it being then in his possession and he residing in Suffield in the State of Connecticut. The residence of the defendant and the former residence of the ward were only four or five miles from the land purchased by the ward in Suffield. The defendant, at the time of the payment, resided in this State, and knew of the existence of the guardianship, and that the guardian resided in the same town with himself. The jury were instructed, that, under these circumstances, the delivery of the money to the ward did not amount to a payment of the note.</p> <p>A verdict was found for the plaintiff. But if the foregoing instruction was wrong, or if the evidence rejected ought tot have been received, a new trial was to be granted; otherwise judgment was to be rendered on the verdict.</p>

<p>Assumpsit. Trial before Shaw C. J. It appeared that fourteen persons, of whom Helaz Alvord, the defendant’s intestate was one, gave their joint and several note, dated January 3, 1827, for $3000, payable to William Clark or order, in one year, and that it was indorsed by Clark. Chandler negotiated it on account of Clark, to Mary Belknap, who advanced the money for it. The plaintiffs, being four of the promisors, took up the note, under the circumstances hereafter stated, and brought this action for a contribution.</p> <p>To prove payment by themselves the plaintiffs produced the deposition of Mary Belknap ; which was objected to, on the ground that the magistrate who took it was not a disinterested and indifferent person, he being a son-in-law of one of the plaintiffs. The deposition was admitted de bene esse, for the purpose of reserving this objection.</p> <p>By this deposition it appeared, that after the note became due, a new note, dated January 23, 1828, made by the four plaintiffs jointly and severally, for the like sum of $3000, payable to Mary Belknap or order, was received and accepted by her in full satisfaction of the first note; and that the note last made was still outstanding and unpaid.</p> <p>It further appeared, that the signers of the first note, together with other persons, constituting a stagecoach company, met at Petersham at the time of its date ; that Clark stated to them, that the company was considerably in debt; and that it was proposed to make a note to raise some money. Clark stated that $ 3000 would be sufficient to pay those creditors who did not belong to the company, and the note was made for the purpose of raising money to pay them. There were some members of the company present who refused to sign the note. The proceeds of it were paid to various creditors of the company, but no part was paid to either of the plaintiffs.</p> <p>On these facts judgment was to be rendered on nonsuit or default, or a new trial was to be granted, as the Court should direct.</p>

This action was brought to recover a sum of money delivered by the plaintiff to a stagecoach driver, named Haynes, who drove a stagecoach from Barre through Holden to Worcester, and back on the same road from Worcester to Barre. The defendants are charged in the writ as copartners and joint proprietors of the coach driven by Haynes, who is called their servant. The general issue was pleaded.

Assumpsit on a promissory note made under the following circumstances. One Whitney was in possession of a tract of land, situate in Worcester, claiming to own it. About the date of the note, West, being the attorney of Whitney, sold the land to one Pond. A deed was made and executed by Whitney and his wife, and it was agreed that Whitney and West should come to Worcester at a particular time and deliver it.

<p>By a vote of the proprietors of a township, a lot of land was appropriated for the purpose of erecting a meeting-house thereon. In 1727, after the erection of the meeting-house on the land, the town was incorporated and assumed the charge of its parochial affairs. The land around the meeting-house, was called “ the common *• or the u meeting-house land,” was always open, and was intersected by several highways and other ways; it was also used as a site for horse-sheds and for all the ordinary purposes incident to a place of worship, and as a training-field. The town meetings had been held at the meeting-house. In 1754 and 1763, the proprietors voted to sell portions of the lt meeting-house land,” and they had also at different times exercised other acts of ownership over portions of this land. It was held, that the first parish, which was the successor of the town in its parochial capacity, might maintain trespass against a stranger who had ploughed up a portion of the land, which was used for purposes incidental to a place of worship.</p> <p>It seems, that the vote of the proprietors, and the actual erection of the meeting-house, gave an actual possession of the land to the parish, which was sufficient to enable them to maintain trespass against a stranger:</p>

<p>Trespass for breaking and entering the plaintiff’s close and dwelling-house, and making search without authority. The defendants pleaded a special plea of license, to which the plaintiff replied generally, denying the license.</p> <p>At the trial, before Wilde J., evidence was offered tending to show, that if license was given by the plaintiff to the de fendants to enter the house, it was in consequence of a representation that they had a search warrant, and that the plaintiff at first forbid them.</p> <p>The jury were instructed, that if they were satisfied that the plaintiff at first forbid the defendants’ entering the house, and that they then showed him a paper representing it to be an authority to search, and he, believing they had such authority, gave them leave to enter, this would support the defendant’s plea, although they had no such authority.</p> <p>If this ruling was incorrect, a new trial was to be granted.</p>

<p>In trespass quare. clausum, for filling up a trench dug by the plaintiff for the purpose of conducting water from a pond to his mill, the defendants pleaded in justification, that they had a right to erect a dam al the outlet of the pond, to raise the water there to any height they should see fit, and to draw off the water whenever they should see fit, for the use of their mill} wherefore they entered, &c.; to which the plaintiff replied, de injurid, &c. It was held, that evidence on the part of the defendants, that they had a right to a reasonable use of the water, and an instruction to the jury to that effect, would have been irrelevant to the issue joined, and therefore, the omission by the court to give such instruction was not a sufficient ground for granting the defendants a new trial.</p>

<p>After a commission to take a deposition in another State has issued, with interrogatories filed on both sides, it is doubtful whether the party taking out the commission is at liberty to cause the deposition to be taken without reference to the commission. But if this is allowable, he must prove, that he has elected to suppress the commission and take the deposition in the mode provided by statute, that he has given notice thereof to the other party, that the person taking the deposition was duly qualified, and that the other party had notice of the time and place of taking.</p> <p>A deposition taken under a commission is not admissible in evidence, unless it appear by the certificate of the commissioner, that the interrogatories annexed to the commission were propounded to the deponent, and that the deposition was taken in pursuance of the commission.</p>

<p>Assumpsit to recover the amount of an account annexed to the writ. Trial in the Common Pleas, before Williams J., upon the general issue and a plea of tender.</p> <p>The action was prosecuted for the benefit of Cyrur Stock well, to whom the nominal plaintiff, Cary," on January 21, 1832, being in failing circumstances, assigned the account for a valuable consideration.</p> <p>The defendant filed in set-off an account against Cary for money had and received and money paid, and also filed, as evidence in support of the account, a note which he held against Cary, given to the defendant on March 19, 1831, by which Cary promised to pay the defendant or order, on demand, with interest, the sum of. $25-54.</p> <p>The defendant proved that before the commencement of this suit, on February 7, 1832, be tendered to Stockwell the above mentioned note, together with $ 4-75 in money, in full of the account sued. He did not, at the time of the tender, state to Stockwell the amount which he tendered, nor did Stockwell inquire as to the amount or examine th» same ; but the defendant said that if he had not tendered enough he would produce enough.</p> <p>The plaintiff introduced evidence tending to show, that on December 5, 1831, the defendant, at the plaintiff’s store, gave the plaintiff a note on demand, with interest, for $ 34-08, and that the defendant not having with him his note against the plaintiff, it was then and there agreed between them, that the two notes should be set off one against the other, so far as the smaller would pay the larger.</p> <p>The defendant then proved- that the plaintiff, for a valuable consideration, in January, 1832, indorsed the note given to him by the defendant, to one Goddard, to whom the defendant paid the amount thereof before ‘the tender above mentioned. It did not appear that the defendant, at the time of this payment, had notice of the assignment to Stockwell, of the account sued in this action.</p> <p>Upon these facts the judge instructed the jury, that the tender was well made, and that the defendant had a right to have his account filed set off against the plaintiff’s account sued.</p> <p>The jury returned a verdict for the defendant, and the plaintiff filed his - exceptions to the instructions of the judge.</p>

<p>Debt on a probate bond given by the defendant as executor of the will of Solomon Parsons, deceased.</p> <p>The parties stated a case.</p> <p>On October 3, 1818, the testator made his will, which contained the following clauses : “ I give to my daughter, Sally Parsons, her support in sickness and health, in every thing necessary for her, except her clothing, so long as she shall live single and receive the same at my house, to be furnished and paid out of the profits and income of my estate. I do also devise to her the use, for the same term, of my north room, in the dwelling-house, if she wishes to occupy it. I also give to my said daughter Sally, $268, to be paid to her at her marriage, in money or such articles of personal estate, at cash price, as she may choose, at the choice of my son hereafter named. I also give her one of my beds, bedsteads and suitable bed-clothing for the same.” On April 10, 1822, the testator’s daughter Sally was married to Benjamin N. Childs. On June 29, 1830, the testator made a codicil to his will, which contained the following bequests ; “I further give to my daughter Sally, (now Sally Childs), $100, within one year after my death, and to my daughter' Elizabeth, (now Elizabeth Bryant), $100, in two years after my death, to them and their heirs, in addition to what I have before given them, to be paid by my executor.” The will and codicil were duly proved on June 7, 1831.</p> <p>This action was brought for the benefit of Benjamin N. Childs, to recover the legacies given to his wife in the will and codicil.</p> <p>It appeared that until their marriage, she had resided and labored in the family of the testator;. that about the time of the marriage, the testator furnished to her certain articles and money, to the amount of $ 147-49, and on the day of the marriage entered a charge thereof in a book of accounts, under the title of “ Inventory of articles Sally Parsons has had of my estate that he paid her $ 50, and took a receipt therefor from B. N. Childs, dated November 29, 1823, as for part of her portion; that he also paid an order for $20-60 drawn upon him by Childs, dated December 25, 1823, which order was found pinned to the leaf in the book, upon which the account was entered, together with the receipt.</p> <p>It also appeared that the testator declared, that the order was paid in part of the legacy given to his daughter Sally; that before the codicil was made, he had frequently declared, that he had nearly paid off the legacies given by his will, to his daughters, and had stated, in some instances, the manner in which he had done it; and that after the making of the codicil, repeated declarations were made by him, which he called on witnesses to remember, that he had paid all that he had bequeathed to his daughter Sally, except the sum of $150 ; but it did not appear, that these declarations were made in the oresence of Childs or his wife.</p> <p>It further appeared that the defendant had paid $ 150 to Childs on April 22, 1831.</p> <p>If these facts were admissible in evidence, and constituted a defence to the action, the plaintiff was to be nonsuited ; if otherwise, the defendant was to be defaulted, and the damages to be assessed by the Court.</p>

<p>A. conveyance by a partner, of his interest in all the personal and real estate of the firm, to one of his copartners, does not ipso facto dissolve the copartnership > it is only evidence tending to show a dissolution.</p>

Assumpsit against the defendant as administrator on the estate of Lawson Valentine. ■ Trial before Morton J. In November, 1818, Samuel Haven and Henry Valentine were appointed guardians of a spendthrift, and executed their bond to the judge of probate, with the plaintiffs as sureties, for the faithful performance of that trust.

Trespass quare clausum. Plea, soil and freehold in one Levi Farwell. At the trial, which was before Morton J., the plaintiff produced evidence of the levy of an execution upon the premises, on August 9, 1830, which execution was issued, in his favor, against Willard Howe ; and it was proved, that Willard Howe derived his title from Robert Fuller and Samuel Wilder, by their quitclaim deeds dated August 8, 1829.

<p>The manufacturer of goods has a lien for the price of manufacturing them..</p> <p>Where goods in the possession of a party who had a lien on them were attached, and he receipted for them to the officer, under an agreement that he should continue to retain for his lien 5 and afterwards they were attached at his own suit, and he receipted for them, still asserting his lien, it was held that the lien was not discharged.</p> <p>These attachments having been made on writs against a person who was not the owner of the goods, and the general owner having brought replevin against the attaching officer, it was held, that although the attachments were void and the defendant could not justify as an officer, lie might nevertheless defend the detention of the goods as the servant of the parly having the lien,</p> <p>in such action of replevin the defendant was permitted to prove by parol evidence, that the goods were attached by him subject to the lien, although no mention of the lien was made in the receipts taken by him nor in his returns.</p>

<p>•Assumpsit upon an order, dated July 18, 1831, drawn by Alexander Peters in favor of the plaintiff, requesting the defendant to pay over to him $ 1700 or whatever balance oi money there was in his hands, or might come to his hands, for account of the drawer, out of the estate of Joseph Peters, deceased ; on which order the defendant wrote, “ accepted to pay the balance when received. Wm. C. Aylwin.”</p> <p>Plea, the general issue.</p> <p>At the -trial, before Morton J., it appeared that Alexander Peters was one of the heirs of Joseph Peters ; that he, with the other heirs, employed the defendant to collect the money due to the deceased ; that Alexander had, some years before, failed in business, and had not, at the date of the order, paid his debts ; that on that day he brought to the defendant for his acceptance, an order in favor of the plaintiff, and desired the defendant to accept it, as he wished to place this fund where he could control it; for he could not, as he said, pay his old debts, but he wished to provide for some of his more recent creditors ; that he owed the plaintiff several hundred dollars, but much less than his share in the estate of Joseph Peters ; that the defendant stated to him that the order would not answer his purpose, as it ought to be for value received ; that a new order was drawn in conformity with his directions, which was the order declared upon ; that Coolidge, Deblois & Co., in 1819, recovered judgment against Alexander Peters for the sum of $ 155'73 and costs, which remained wholly unsatisfied ; that in February 1820, Coolidge, Deblois & Co. assigned their property and demands of every kind to the defendant, and as such assignee he was entitled to the proceeds of the judgment above mentioned, at the time when the order was accepted ; that at the time of the acceptance nothing was said about the judgment, but that the defendant addressed a letter to Alexander Peters, dated the 18th of July, 1831, but postmarked on the 29th of that mouth, stating that in looking over an old docket he had found the judgment in question, and expressing his desire to have part of the money to be collected, applied tc the discharge of the judgment; that this letter was received by Peters at Mendon, and he soon thereafter made known to the plaintiff that he had received it, but it did not appear that he made known to him the contents; that in a short time after the acceptance of the order, the plaintiff executed an obligation, wherein he promised Peters to pay some of his creditors, which obligation the plaintiff retained in his hands and did not deliver to Peters for some months ; that in the summer of 1832 the plaintiff paid about $200 to one Wood, and he has since paid over the balance to other creditors of Peters ; that the defendant stated an account in which he credited himself with the amount of the judgment, on the back of which account and on the original order the plaintiff signed duplicate receipts for money paid to him by the defendant in pursuance of the order, but the receipts do not refer to the account, nor did it appear that the plaintiff saw the account; that at the da':s of the last receipt the defendant had received all the money mentioned in his acceptance, and that on the same day the plaintiff demanded payment of the balance then due to him.</p> <p>If upon these facts the plaintiff was entitled to recover, judgment was to be rendered in his favor for the amount retained by the defendant on account of the judgment recovered by Coolidge, Deblois & Co. ; otherwise he was to become nonsuit.</p>

<p>In the Court of Common Pleas the parties stated the following facts.</p> <p>On April 3, 1829, the defendant, by virtue of a contract previously made with the town of Petersham, took the care and custody of the poor of the town for the term of three years then next ensuing. Isaac Bragg, for whose services this action was brought, was received by the defendant, on that day, as one of the poor of the town, under this contract. Soon afterward, at the request and by the direction of the defendant, Bragg went to live with him at his house, about one mile from the poor farm, and continued in his family during the time that the defendant had the care of the poor, laboring for him on his, the defendant’s farm, and on the poor farm.</p> <p>At the expiration of the term of three years, Bragg expressed a determination not to leave the defendant, unless compelled to, and the defendant was willing to let him remain with him, and to pay him wages for his services over and above all expenses of boarding, clothing and nursing him ; and the defendant offered to do so, and to give bond to the town that Bragg should not become chargeable to the town for a period of ten years. This was done after a contract, dated January 3, 1832, had been made by the town with the plaintiffs.</p> <p>By this last contract the plaintiffs are to support comfortably and decently, in sickness and in health, all the paupers who shall be chargeable upon the town on April 3, 1832, and within three years thereafter, for and during the full term of three years from and after that day ; and are to have the reasonable service and labor of the paupers.</p> <p>Bragg remained with the defendant and labored for him during the time specified in the plaintiffs’ declaration. It was agreed that he was a person of small mental capacity, and that be might be regarded as non compos mentis; but that he possessed good health and strength, and was capable of doing many kinds of work upon a farm, and of earning by his labor more than enough to support himself. He had been for fifteen years previous a pauper of the town of Petersham, and nc change in his condition had taken place.</p> <p>About the 1st of May, 1832, the plaintiffs asked the defendant if he would deliver up Bragg, and the defendant replied that he would not. The plaintiffs then said that they should look to him for payment for Bragg’s services, at the rate of two shillings a day.</p>

<p>These cases were appeals from a decree of the judge of probate, made in ■ January, 1833, ordering distribution to be made of the estate of John Grout deceased.</p> <p>The parties agree, that at September term 1828 of the Supreme Judicial Court, a bill in equity which had been prosecuted by John Jennison the administrator, by Prudence Grout, now Prudence Saunderson, the widow, and by Thomas Grout and others, the children and heirs at law, of John Grout, against Hutchins Hapgood, executor of the will of Jonathan Grout, the father of John, for the recovery of a certain farm devised by Jonathan to John Grout, was dismissed, and that thereupon judgment was rendered that Hapgood should recover $ 293, costs of suit, against those plaintiffs, for which sum execution was accordingly issued. This execution was afterwards paid by one Saunderson. At the time of settling his final account as administrator, Jennison claimed to be allowed the amount of this judgment for costs, or some part of it, but the judge of probate refused to allow the same. Saunderson had been the guardian of John Grout’s children, but at the time of the judgment they were all of age, There is no proof that Jennison requested Saunderson to pay the judgment, but Saunderson then held an agreement signed by the children, dated in February, 1826, when two of them were minors, in which they promised to reimburse his expenses in the prosecution of the suit in equity. No request from any other person to Saunderson to pay the judgment was proved ; but in a conversation had soon after the judgment, between Saunderson and Lewis Bigelow, the solicitor for the plaintiffs in the bill in equity, Bigelow told Saunderson that it would not do to have the execution go out against Jennison, and thereupon Saunderson paid it.</p> <p>The devise of the farm was as follows. “ I give unto my son John my homestead farm &c., together with two bonds wherein my son Jonathan promises to indemnify me against a certain mortgage of said farm to Abigail Hale, &c., and should Jonathan be unable to pay the sums named in his obligations to me, I order that John pay the one half the deficiency, and the other half shall be paid out of my other estate,” &c. “ The residue of my estate I give, after paying my debts, to my daughters, &c., always providing that if the residue shall exceed one thousand dollars in value, to each daughter, the overplus shall be divided among all my children, after firstly taking from such overplus enough to clear the homestead for John.” The testator died on the 9th, and John Grout on the 12th of September, 1807.</p> <p>Hapgood, as executor, sold the right in equity to redeem the farm, for $ 500, and it was bid in for him by an agent. In 1809 he redeemed the farm, and has ever since owned it. The conveyance to him by Mrs. Hale was in the form of ah assignment of the mortgage. Mrs. Hale entered under the mortgage, for condition broken'; and she and Hapgood held peaceable possession of the farm for more than three years after such entry.</p> <p>In the course of the settlement of Jonathan’s estate, this Court decided, that those who were interested in his. real estate, which had been sold by the executor and purchased in by himself, might elect to take the real estate thus sold, or the proceeds of the sale. The widow and heirs of John elected to receive the proceeds of the sale ; which election was made at or about the time of dismissing the bill in equity.</p> <p>In thé case of Grout v. Hapgood, 13 Pick. 159, it was considered that one half of the incumbrance was to be paid out of the testator’s estate, but that the provision for paying the other half out of the “ overplus” of the “ residue,” had been defeated by events ; and it was decreed that Hapgood should pay to the administrator of John Grout the proceeds of the real estate devised to John, with interest, including half of the amount of the mortgage.</p> <p>After that decree, which was made in October, 1832, and before January, 1833, the widow of John demanded of the administrator, that he should pay over to her one third part of the income of the estate which had come into his hands as the proceeds of the real estate.</p> <p>The children of John claimed of the administrator the interest upon the sums of money which had come into his hands, from the death of their father. The estate of John was represented insolvent, and was actually so.</p> <p>The judge of probate decreed, that the account presented by the administrator be allowed, first deducting the charge for payment to Hapgood of $293, &c., and that the balance in his hands, of $2585, be paid over to the creditors of the estate, whose claims had been allowed.</p> <p>From this decree the administrator appealed, because he was not allowed to retain for the sum of $293, above mentioned.</p> <p>The heirs appealed, because the balance in the hands of the administrator having been the proceeds of the rents and the sales of certain real estate of the intestate, and the interest thereon, the interest on the amount of such sales, from the time of making thereof, together with the rents of said real estate, ought to have been decreed unto the heirs.</p> <p>The widow appealed, because the balance was made up of the proceeds of sales of real estate of the intestate, and the income of one third pari thereof ought to have been decreed to her during her life, as and for her lawful dower out of the estate of the intestate.</p> <p>The records of the proceedings in the settlement of the estate of Jonathan Grout were made a part of the case. See Jennison v. Hapgood, 7 Pick. 1, and 10 Pick. 77 ; Houghton v. Hapgood, 13 Pick. 154 ; and Grout v. Hapgood, 13 Pick 159.</p>

<p>A bequest of a sum of money to be paid in three years from and after the testator's de cease, is a vested legacy.</p> <p>A husband may sue in his own right, after the death of his wife, for a legacy accruing to the wife during the coverture.</p>

<p>Assumpsit. Upon a case stated it appeared, that the action was brought on the following writing, which was addressed to the plaintiff: “ Northborough, July 4th, 1818. Sir, My son Francis wishes to have yoii lend him about one hundred and eighty dollars. If you will let him have it, when you find his security not good, please to notify me, and I will account to you for the same. Phineas Davis.” About July 4, 1818, the plaintiff lent to Francis the sum of $188, and received his promissory note for that amount, payable on demand with interest, but dated February 16, 1818. Francis carried on an extensive business in West Boylston, where the plaintiff resided, and remained in good credit until January 12, 1829, when he failed and mortgaged his real and personal estate to the defendant and Isaac Davis, to secure their claims against him, to the amount of between $ 4000 and $ 5000. The failure of Francis was known to both the parties to this action at the time when it occurred. The defendant and Isaac Davis subsequently, without receiving any part of their claims, released the mortgaged property for the benefit of the other creditors Of Francis. The interest on the promissory note was paid from time to time until the year 1830, but none of the principal was paid. On March 19, 1830, the plaintiff and Francis made a settlement of their mutual demands, excepting therefrom the promissory note, and a balance of $20-32 was found to be. due from the plaintiff, which sum was deducted from the note, and a new note for the balance, $167-68, payable on demand with interest, dated February 16, 1818, was substituted for the original note ; and interest was indorsed on the new note up to March 19, 1830. Some small payments on it were subsequently made. On December 4, 1832, the plaintiff notified to the defendant, that the security of Francis was not good, and requested him to pay the amount due on the new note ; and there was no evidence that the plaintiff had ever notified to the defendant the existence of the debt previously to that time. The defendant lived about fourteen miles from the residence of the plaintiff.</p> <p>It was also admitted, if the Court should deem evidence o it to be competent, that the plaintiff, on December 20, 1819, lent to Francis $ 100, which had been since paid.</p> <p>If the Court should be of opinion, that this action could be maintained, then judgment was to be rendered for the plaintiff, for the amount of the new note, $ 167-68, with interest and costs ; otherwise the plaintiff was to become nonsuit and the defendant to recover his costs. .</p>

<p>Where at a sale of goods for the non-payment of taxes, the collector of taxes became himself the purchaser, it was held, that such sale was voidable, at the election of the owner of the goods.</p> <p>It seems, that the owner in such case, in order to maintain trover for the goods, must elect to annul the sale, before the commencement of the action.</p> <p>If a distress for non-payment of taxes be sold by the collector after the expiration of the time limited by St. 1785, c. 70, § % and St. 1791, c. 22, $ 2, for making such sale, the delay renders the collector a trespasser ab initio; and trover will lie against him, in favor of the owner of the goods sold, although no demand thereof be made before the commencement of the action, the tortious taking of personal property being a conversion.</p> <p>In such an action it appeared, that the collector applied the proceeds of the sale, in part-payment of the tax, and that the owner subsequently paid him the residue of and required a receipt for the whole amount of the tax, in order that he might settle with his landlord. Held, that this was not a waiver of the right to bring the action.</p> <p>In such action it was held, that the measure of damages was the value of the goods, deducting the amount applied by the collector to the payment of the tax.</p>

This was trespass, for an arrest of the plaintiff by a collector of taxes, under a warrant, issued by the defendants, for the collection of a school district tax in Mendon. The defendants pleaded the general issue, and filed a brief statement of the special matter of their defence, in which they justified as assessors of the town of Mendon.

<p>This was an indictment against the defendant, for selling jewelry as a pedler, contrary to St. 1820, c. 45.</p> <p>At the trial in the Court of Common Pleas, before Cummins J., it was proved on the part of the commonwealth, that the defendant went on foot, from place to place in the town of Douglas, offering for sale divers goods ; that he had plain gold rings, or those which he called such; and that, among other things, he offered for sale and did sell a pair of 'gold knobs for éar-rings. The jury were instructed, that plain gold rings and ear-knobs were comprehended in the word “jewelry,” as used in the statute. The jury returned a verdict of guilty. The defendant excepted to this instruction of the judge.</p>

<p>The owner ofland mortgaged it to V, in 1803, but continued in possession. In Janu ary, 1810, he made a deed of the same land to A, and in March, 1810, he made a deed of it to T. The mortgagee, in 1812, conveyed the land to T, by a deed of quitclaim, in the usual form, with a covenant of warranty against himself and any person claiming under him. It was held, that this conveyance to T, who had taken from the mortgager the second deed of the equity of redemption, did not operate as an extinguishment or merger of the mortgage, so as to give a priority to A, but that it operated as an assignment of the mortgage.</p> <p>The erection of buildings on mortgaged premises, by the mortgager while remaining in possession, will not operate as a disseisin of the mortgagee, but will be regarded as improvements made to enhance the value of the equity of redemption.</p> <p>A mortgagee cannot be disseised by the mortgager.</p>

<p>The payment of interest by the principal promiser in a joint and several promissory note, annually, from the time when the note was given, is sufficient to take the note out of the statute of limitations, as against the surety. [But see Revised Stat. c. 120, § 14,17.]</p>

<p>Writ of entry. The demandants claim title to the land as neirs of Alplieus Fay.</p> <p>Upon a case stated it appeared, that before June 16, 1827, Alpheus Fay made his will, by which he devised to Fitch Winchester, his heirs and assigns, “ all the rest and residue of his estate, real, personal and mixed,” and appointed Winchester his executor.</p> <p>On June 16, 1827, one Cook mortgaged the demanded premises to one Onthank, to secure the payment of the sum of $ 500, one half in one year, and the residue in two years, according to the condition of a bond binding the mortgager to these payments. On October 22, 1827, Onthank assigned the bond and mortgage to the testator. In July 1829, the testator entered and took possession of the premises under the mortgage, for condition broken, and continued to hold possession thereof until his decease, which took place on October 31, 1830. On August 29, 1831, Winchester, by his deed, as executor, assigned the bond and mortgage to the defendant, who thereupon entered into possession of the premises.</p> <p>On September 25, 1829, the mortgager conveyed the equity of redemption to one Bigelow, by whom it was conveyed on January 26, 1831, to Onthank. On June 12, 1832, Onthank quitclaimed and assigned all his interest in the premises to the defendant.</p> <p>The plaintiff was to be nonsuited, or the defendant to be defaulted, according to the opinion of the Court upon these facts.</p>

<p>It is not competent for a court of probate to decide, that an account of an executor ts final, so as to bar all further inquiry in regard to matters not included in the account, and to oust the court of probate of its jurisdiction.</p> <p>A.n executor is not liable to be called to account a second time, for the same matter, but, in order to protect himself from future liability, he should specify the subjects in regard to which he settles, an account, and the decree of the court upon such specific subjects, will be conclusive against all parties, unless fraud be charged and proved.</p>

<p>This was replevin for 2486 feet of hewn stones. The defendant pleaded property, at the time of the taking, in Temple & Washburn.</p> <p>At the.trial, before Morton J., it appeared that the plaintiff and defendant were deputy sheriffs ; that on November 5, 1832, the plaintiff, having a writ in favor of one Howe and others against Temple & Washburn, proceeded to attach the stones in question, which were lying at about the distance of ten rods from the Lunatic Hospital in Worcester, on land belonging to the commonwealth and appropriated to the use of the hos- « pital; that the plaintiff, in making the attachment, went among and upon the stones ; that Howe receipted for them ; that the plaintiff thereupon directed him to take charge of them, but that they were not removed ; that Howe’s place of business was distant about fifty or sixty rods from the place where the stones lay, and in sight of a part of them, and his boardinghouse was also in sight of them ; that there were persons at work upon the hospital, and that the house of John F. Clark was distant about ten or fifteen rods, but that no notice of the attachment was given to them or to any other person, nor any other mode adopted of giving notoriety to the act; that on No vember 15, 1832, one Holbrook was summoned in the same writ as trustee of Temple & Washburn, and was informed by Howe, that the stones were attached, and that no one knew of it except Howe and the plaintiff; that Holbrook was desired to communicate information of the attachment to Temple & Washburn, and to tell them, that the action might be settled before the expiration of the time of service and the public would have no knowledge of the transaction ; and that Howe requested Holbrook not to inform any other person of the transaction, saying that he did not wish to injure the credit of Temple & Washburn.</p> <p>It further appeared, that on December 1, 1832, the defendant, after inquiring of Clark, whose residence was nearest to the stones, whether they had been taken by any of the creditors of Temple & Washburn, and not deriving any knowledge from him or otherwise of any existing lien thereon, attached them upon a writ in favor of one Sherman against Tem pie & Washburn that Clark and one Henry, who resided in the same house, were employed by the defendant to take care of the property attached ; and that a few weeks after the attachment made by the defendant, Howe gave notice to Clark, of the plaintiff’s attachment.</p>

Writ of entry, in which the demandant claims title to a tract of land in the town of Worcester, containing two acres and one hundred and five rods.

Bill in equity. From an agreed statement of facts it appeared, that the plaintiff and defendant respectively, caused simultaneous attachments to be made, of the real estate of Zebu-Ion Cary ; that they entered their actions and obtained judgments ; that the execution issued in favor of the plaintiff amounted to the sum of $484-18, and that in favor of the defendant, to the sum of $ 1602-03 ; that both executions were levied on a parcel of land of Cary which was not…

<p>Where an attorney at law was requested by a debtor to draw up a mortgage deed Oi his personal property, and the debtor disclosed his purposes in making such a conveyance, either without any particular motive, or in order to remove any scruple that the attorney might have entertained as to the character of the transaction, but uo legal advice as to the effect of such conveyance was asked or given, it was htldj that the testimony of the attorney as to such communications, was admissible.</p> <p>The attorney, in such case, having drawn up the deed, by which the property mm conveyed to a third person to prevent it from being attached by creditors, the deed was executed in the office of the attorney and in his presence $ it was held that the attorney was not exempted from testifying as to communications made to him by such third person.</p>

<p>H. C. and G.C. signed a subscription paper, by the terms of which they each agreed to pay the defendant the sums written against their names, provided he would cause an institution for the education of teachers for schools,* to be established in the town where the subscribers lived. A few days afterwards the whole amount of their subscriptions was paid to the defendant, he giving a receipt therefor, which set forth, that the money was “ received of H. and G. C. in payment of a subscription by them made to encourage the establishment of a seminary ” «fee. It was held, that as no time was fixed by the subscription paper within which the institution was to be established, it should have been established within a reasonable time; and that, as it was not so established, assumpsit for money had and received might be main tained against the defendant to recover back the amount paid to him.</p> <p>It was held also, that the subscriptions of H. C. and G. C. were several, and consequently that they should bring several actions to recover back the money paid bv them.</p>

<p>Devise: “ I give to my wife the improvement of one half of mjr real estate, while she remains my widow, and all my household furniture to be at her disposal. I give to my four sons all the remainder of my estate, both real and personal, to be equally divided between them, share and share alike. My will is, that my executors have one year to pay one half of the legacies, and the other half in two years after my decease and the decease of my wife.” The testator sold his real estate and died leaving a widow. ^ It was held, that one half of the legacies was payable in one year from the probate of the will, and the other half in two years after the death of the widow.</p> <p>Where a legatee, being the son of the testator, died in the testator’s lifetime, leaving children, it was held, that all the children must join in an action for the recovery of the legacy.</p>

<p>Upon a case stated it appeared, that on October 28, 1828, the plaintiff lent to the" defendant the sum of $295, and took his promissory note for the sum of $ 300, payable on demand with interest; that on December 25, 1828, the plaintiff agreed to lend the defendant the sum of $ 500 for one year, and tbere.upon delivered to him $ 170 in cash and the note for $ 300 and took the defendant’s note for $ 500 payable on demand with interest, together with the defendant’s receipt in full of an account, amounting to the sum of $2, which was due from the plaintiff to the defendant, for wool. The last mentioned note was the cause of the present action.</p> <p>The writ was served in July 1829.</p> <p>The Court were to render the same judgment, as if these facts had been found by the jury on December 22, 1830.</p> <p>The case was argued in writing.</p>

<p>A number of persons met together and organized themselves as a voluntary religious society. No further meeting was held within six months, when the question was made, whether the society had not been dissolved. The records were afterwards burnt, but it did not appear that this was done by order of the society, nor had there been any corporate act evincing an intention to abandon their corporate powers. Many members filed with the clerk of the First Parish a certificate that they had withdrawn from the voluntary society, but it did not appear that there were no other members. It was held, that these facts did not prove that the voluntary society had been dissolved.</p> <p>Sc, the omission for two years, to meet for parochial purposes and for the choice of officers, was held not to have operated as a dissolution of this society. See note. The recording officer of religious and other corporations may make copies of his records, and his certificate will be evidence of the verity of the copy 3 but it is no part of his duty to certify facts:—wherefore, where the clerk of a religious society certified simply, “ that the plaintiff, at his own request, had ceased to be a member of the society,” it was held that the certificate was not legal evidence of that fact.</p>

<p>This was an appeal from a decree of the probate court sanctioning a payment made by the appellees as executors of the wiU of Thomas Lee, to Mary Ann Lee, and the representatives of Louisa and Georgiana Lee.</p> <p>The will was made on the 19th of August, 1825 ; and it contains, among others, the following bequests.</p> <p>ct I give and bequeath to my granddaughters Mary Ann Lee, Louisa Lee and Georgiana Lee, the children of my late son George G. Lee, deceased, the sum of 17,000 dollars, to be equally divided between them ; and if either of them shall die before me without leaving a child or children, her share shall go and be paid to the survivors or survivor.”</p> <p>“ I give and bequeath unto my granddaughter Judith Coleman Lee, daughter of my late son William Coleman Lee deceased, the sum of 17,000 dollars, to be paid to her when she arrives at the age of twenty-one years or is married, whichever shall first happen ; and my will further is, and I do order and direct, that if my said granddaughter Judith Coleman Lee shall die under twenty-one years of age and unmarried, that the said legacy heretofore bequeathed to her, shall go and be paid to my said granddaughters the said Mary Ann Lee, Louisa Lee and Georgiana Lee ; and if either of them be then dead, to the survivors or survivor of them, and to the child or children, if any, of such deceased granddaughter, the child or children of such deceased granddaughter to take his, her oi their mother’s share only. And I do hereby direct my executors hereinafter named, to retain in their hands so much of my personal estate as shall be sufficient to pay the said sum of 17000 dollars when the same shall become due and payable as aforesaid.”</p> <p>“ I give, devise and bequeath all the rest, residue and re mainder of my estate, real, personal and mixed, as follows, to wit: — One half part thereof to my granddaughters the said Mary Ann Lee, Louisa Lee and Georgiana Lee, their heirs and assigns for ever; and if the said Mary Ann, Louisa and Georgiana, or either of them, shall die before she or they arrive at twenty-one years of age, and unmarried, then my will is, that her or their share so dying shall go to the survivors or survivor, her or their heirs and assigns for ever ; and the other half part thereof I give, bequeath and devise to my granddaughter Judith Coleman Lee, her heirs and assigns for ever ; but if said Judith Coleman Lee shall die before she arrives at the age of twenty-one years or is married, then I give, bequeath and devise said other half part of said rest, residue and remainder of my estate as aforesaid, to my said granddaughters the said Mary Ann, Louisa and Georgiana, and to the survivors and survivor of them, their heirs and assigns for ever.”</p> <p>The testator died January 11, 1830, and his will was proved in March following.</p> <p>Judith Coleman Lee, having attained the age of twenty-one years, died, unmarried, in the lifetime of the testator.</p> <p>Besides the children of his son George G. Lee, the testator had two daughters who survived him, the appellant and Louisa Waterhouse, to both of whom he made large bequests. At the date of the will the daughters had no issue, nor was it probable that they ever would have any.</p> <p>The question was, whether the appellant was entitled to a share of the legacies bequeathed to Judith Coleman Lee, or whether the whole amount of them was rightfully paid over by the executors to Mary Ann Lee and the representatives of Louisa Lee. and Georgiana Lee.</p>

Trespass quare clausum, for cutting trees in a parcel of uninclosed woodland, which was 50 or 60 rods in length, and about 12 rods in breadth at one end, and running to a point at the other. At the trial, before Shaw C. J., the plaintiff gave in evidence a deed to himself from Caleb Butler, dated January 1, 1325, which included the land in question.

Trespass de bonis asportatis for divers cattle and farming utensils, to the value of $199.40. Plea, not guilty, with a brief statement setting forth that the defendant is sheriff of the county of Worcester, and that one of his deputies attached the chattels as the property of Joseph Fletcher, on divers writs against him, and subsequently sold them on execution, and that they were-in fact the property of Joseph and not the property of the plaintiff.

<p>Bill in equity. The plaintiff sets forth in his bill, that he and the defendant Mann, on or about May 13, 1831, became and were jointly interested as tenants in common in a certain tract of land in Lowell, which was conveyed on or about June 13, 1823, by Samuel Frye, as guardian of his minor children, under a license of court, to Luther Richardson in fee ; that Luther mortgaged the land to Goodman, Saville and Kent, on September 20, 1823, for $1229.70, with interest, and on August 13, 1824, for $2850.30, with interest; that afterwards the right of Lather to redeem the land was attached at the suit of Mellen and Norcross ; and afterwards, on or about May 14, 1825, Luther, by his deed of release, conveyed the land to his brothi r Prentiss Richardson, to secure the' payment of $170, upon an express (verbal) agreement between them, that Prentiss, upon the request of Luther, would reconvey to Luther or any other person ; that on May 18, 1825, Luther’s right to redeem the mortgages to Goodman, Saville & Kent, was sold and conveyed by a deputy sheriff, on Mellen and Norcross’s execution, to John C. Proctor, for 01200; that on Maj 21, 1825, Proctor conveyed his right to Joshua Bennett; that Luther, being desirous of redeeming the land from Bennett and the mortgagees, applied to William W. Walker and Albigence W. Fisher for a loan of money for that purpose, and thereupon it was agreed between Walker, Fisher, and Luther, that Walker and Fisher should lend, advance and pay the sums due to Bennett and the mortgagees, and hold the land as security for the repayment of the money by Luther, and thereupon Luther and Prentiss, by their deed of release of May 6, 1826, conveyed the land to Walker and Fisher, and Walker and Fisher gave to Luther their bond of defeasance, of even date, conditioned to reconvey to Luther, his heirs and assigns, whenever at any time within five years Luther, his heirs or assigns, should pay to Walker and Fisher all such sums as they should legally pay in discharge of the incumbrances, with interest, together with such other sums as they might expend in such improveme'nts and betterments as should be made on the land in that time, with the mutual consent of the parties; that in September 1826, and April 1827, Walker and Fisher paid the sums due to the mortgagees, and took assignments of the mortgages and of the sums of money thereby secured to be paid ; that on May 15, 1826, they paid the sum due to Bennett and took an assignment of all his right in the land, whereby and by reason of the agreement between them and Luther they became seised of the land in mortgage and held it subject to the right of Luther to redeem it; that on May 6, 1825, Walker and Fisher leased a part of the land to Luther for five years, at an annual rent of one cent, unless Luther should redeem within that period', and that Luther has been in possession of that part ever since ; that Luther, on or about May 13, 1831, by his deed of that date, granted, assigned and conveyed all his right in the 'and to the plaintiff and Mann, their heirs and assigns, and the plaintiff and Mann agreed to pay therefor the sum of $9,000, part of which sum was to be applied in discharge of Walker and Fisher’s demand, and the balance was to be paid to Luther, in case his title under Frye the guardian, should be .found to be good ; that the plaintiff and Mann became thereby interested in common, and entitled to redeem the land from Walker and Fisher, and it was agreed between the plaintiff and Mann, that they should redeem the land and perfect the title in themselves at their mutual expense, and'for their mutual benefit; that Mann, on July 27, 1831, paid Walker and Fisher’s demand and took a deed of release from them to himself, which enured to the benefit of the plaintiff as well as of Mann ; that on November 15, 1831, the plaintiff requested Mann to state an account of what he had paid, and offered to pay him one half, and requested him to convey to the plaintiff an undivided moiety of the land, but that Mann refuses ; that in July and August 1831, Mann and the defendant John R. Adams, who well knew of the agreement between the plaintiff and Mann, in order to perfect a title in themselves and share in the benefit thereof, and to deprive the plaintiff of his interest in the land, procured deeds of release to Adams from Herman A. Frye and others, claiming to have an interest in the land, and afterwards Adams released a moiety of the land to Mann, and Mann released a moiety to Adams ; that afterwards Mann conveyed a moiety to the defendant Elisha Fuller, in fee, Fuller well knowing the premises, and that Fuller reconveyed to Mann in mortgage, to secure a part of the purchase money. The prayer of the bill is, that the deeds of Mann to Adams and Fuller maybe declared void, and that on payment by the plaintiff, of one moiety of the sums expended by Mann in redeeming the land from incumbrances, Mann, Adams and Fuller, may be decreed to release and convey to the plaintiff one moiety of the land.</p> <p>Mann, in his answer, denies that the plaintiff and himself ever were jointly interested, as tenants in common or otherwise, in the land ; he denies that Walker and Fisher made a loan to Luther Richardson and took a mortgage as security therefor, and asserts that Luther and Prentiss made an absolute and unconditional sale to them, and that they gave Luthei their bond with condition as set forth in the bill, but that the bond was not a defeasance ; he admits that on or about May 13, 1831, the plaintiff and himself made a proposal to Luther to purchase of him all his right in the land, and to take an assignment of Walker and Fisher’s bond, and that Luther executed a quitclaim deed and an ■ assignment to them, but he denies that either the deed or the assignment was ever delivered, and alleges that the proposed arrangement was wholly abandoned.</p> <p>The plaintiff filed a general replication.</p> <p>Upon the hearing it appeared in evidence, that the land being subject to two .mortgages made to Goodman, Saville & Kent, by Luther Richardson, and Luther’s right in equity to redeem having been attached by Mellen and Norcross, he on May 14, 1825, released and quitclaimed all bis right and title to the land to Prentiss Richardson ; that on May 19, 1825, Luther’s right in equity was sold and conveyed on Mellen and Norcross’s execution to Proctor; that on May 21, 1825, Proctor quitclaimed the land to Bennett; that on May 6, 1826, Luther and his wife and Prentiss, by an unconditional deed of that date, quitclaimed to Walker and Fisher, and that at the same time Walker and Fisher executed a bond, oi the same date, to Luther, conditioned to reconvey to Luther, his heirs and assigns, and also a lease for five years, as slated in the plaintiff’s bill; that on May 15, 1826, Bennett executed a deed of quitclaim to Walker and Fisher ; that on May 13, 1831, Luther gave a deed of quitclaim to Flagg and Mann, and, by a deed indorsed on Walker and Fisher’s bond, assigned to Flagg and Mann “ the premises within conveyed to me in mortgage, and all my right, title, interest and estate in and to the same;” and that on July 27, 1831, Walker and Fisher conveyed the land to Mann by a deed of quitclaim. Luther deposed that he. made a proposition to Walker and Fisher tc lend him money on the land as security, but they declined, and they proposed to pay all the incumbrances on the land and take a conveyance to them, on condition that Luther should pay them lawful interest on the amount they should pay, and allow them to receive the annual rents, and that they agreed, at the same time, to give Luther a bond, allowing him the right to redeem within five years. Walker and Fisher deposed tha they refused to lend Luther money upon a mortgage, but offerred to purchase the land outright, and to give a bond to reconvey upon terms ; and that the writings were to be so drawn as not to operate as a mortgage. Fisher also deposed, that the object of Walker and himself in having Luther execute the deed with Prentiss was, that Luther’s wife might sign it, releasing her right of dower. Prentiss Richardson deposed, that when he received the deed from Luther, he did not expect to stand in his brother’s way in disposing of the property at any time when he thought proper; that there was no agreement between them to that effect, but this was their mutual understanding; that he executed the deed to Walker and Fisher for his brother’s benefit, and that he had previously held the land for his brother’s benefit; and that the debt due to him from his brother bad been otherwise secured to his satisfaction.</p>

<p>Assumpsit upon a promissory note, dated June 27, 1826, for the sum of $1181-76 made by the defendants, and payable to Aaron Eames, the plaintiff’s testator. The declaration contained also the money counts.</p> <p>The defendants filed an account in set-off, in which they claimed to set-off the assessments, amounting to the sum of $271, due on two shares in the corporation, alleged to have been owned by the testator.</p> <p>At the trial, before Putnam J., the plaintiff offered evidence to prove that the shares had been transferred by the testator by deed, before the assessment was laid. The defendants contended that the transfer was not sufficient, because the deed had not Deen recorded in a book kept by the clerk oí the corporation for that purpose.</p> <p>The defendants were incorporated by St. 1811, c. 66. The name of the corporation was changed by St. 1819, c. 97.</p> <p>The defendant was defaulted. Judgment was to be entered as the Court should determine upon the facts.</p>

<p>Case against the sheriff of the county of Worcester, for deputies.</p> <p>The first count in the declaration alleges, that, on the second Monday of June 1829, the plaintiffs recovered judgment in the Court of Common Pleas, holden at Concord, against Artemas Fay of Southborough in the county of Worcester, for the sum of $336.84 damages, and $14.05 costs; that on June 26, 1829, the execution was issued and delivered to the defendant, that the defendant undertook to execute the same, according to law, and “ ought to have satisfied it out of moneys of the said Fay arising from the sale of the said Fay’s property made by the said Willard,” on May 5, 1829, which property was attached by Willard on the plaintiffs’ original writ; “ that the moneys arising from the sale of Fay’s property as aforesaid were more than sufficient to satisfy the plaintiffs’ judgment, after paying off all previous attachments,” and that there, on July 1, 1829, the plaintiffs demanded of the defendant, the money then in his hands arising from the sale, in satisfaction of their execution; but that the defendant has unreasonably neglected and refused to pay the amount of the execution out of such money. Whereby, and by force of the statute, &c., the defendant has forfeited to the use of the plaintiffs five times the lawful interest of said money, in addition to the principal aforesaid collected by him.</p> <p>The second count alleges, that the original writ against Artemas Fay was delivered .to Francis B. Fay, one of the deputies of the defendant ; that Francis B., on January 12, 1829, by virtue thereof, attached all the right, title and interest which Artemas had in and unto certain parcels of real estate, which, together with personal property attached on the writ, were of the value of $1000 ; that the plaintiffs recovered judgment, and that the execution was delivered to Francis B. who undertook to levy the same ; that Francis B. sold the personal property attached, which satisfied the execution in part, viz. to the amount of $150 ; that Francis B. afterwards, and within thirty days from the rendition of the judgment, presented the execution to Jabez G. Fisher, another deputy of the defendant, who had made a simultaneous attachment of the same real estate on a writ in favor of Perley Whipple, and had sold the rights in equity which Artemas Fay had to redeem the same, on Whipple’s execution, for the sum of $975; that-Francis B. demanded of Fisher one half of the proceeds of the sale, to be applied to the payment of the plaintiffs’ execution, having before and at the time of the sale notified to Fisher the simul taneous attachment under the plaintiffs’ writ, and requested Fisher to retain one half of the proceeds of the sale in his hands, subject to the plaintiffs’ attachment, to be applied in. payment of their execution ; yet that Fisher not regarding the notice nor the demand, the plaintiffs have wholly lost the benefit of their attachment of the real estate ; whereby and by force of the statute, the defendant became, liable to pay the plaintiffi .the balance of their execution and thirty'per cent, interest thereon, from the time of Fisher’s refusal to pay one half of the proceeds of the sale to Francis B. for the purpose of discharg ing the execution.</p> <p>The third count, after alleging the attachments, the issuing of the executions, the sale by Fisher and the demand by Frar< cis B. of one half of the proceeds of the sale, &c., avers, that after the return of the plaintiffs’ execution, they demanded of Francis B. the balance of the same; yet, that neither Fisher nor Francis B. has ever paid them such balance, which is still unsatisfied ; and that the defendant has unreasonably neglected and refused to pay the same ; whereby and by force of the statute, he is liable to pay them such balance and five times the lawful interest thereon from the time of the plaintiffs" demand.</p> <p>The defendant demurred generally to the declaration.</p>

<p>The defendants, being owners, of a manufactory and of a pond above it, and having purchased of the plaintiff the right of drawing off the water from the pond, through his land, made a written contract with one B, by which B was to run the defendant’s mill for one year, and to manufacture for them, at a specified price, cotton furnished by them, and to keep the mill in good running order at his own expense, except the main gearing, which was to be repaired by the defendants if necessary 5 and 110 rent was to be charged by the defendants, and they were not to be called upon for any expense unless the main gearing should fail or some injury should arise to the dam 5 and six or seven acres of land where the factory stood, with the factory houses, blacksmith shop, &c., were to be used by B. In an action against the defendants for an injury sustained by the plaintiff in consequence of B’s letting off the water from the pond so rapidly as to overflow the plaintiff’s land, it was held, that B was the lessee and not the servant of the defendants, and consequently that they were not responsible for the injury complained of.</p>

This was a writ of entry to recover a parcel of land in Charlestown. The plaintiffs counted on their own seisin, as trustees under the will of Catharine Lombard, within thirty years, and a disseisin by Sargent and Smith, under whom the defendant claims. Plea, the general issue. At the trial, before Wilde J., there was much conflicting evidence introduced, but the jury found a verdict for the plaintiffs.

<p>By a contract between H <fc L, lessees of a brick-yard, and E, it was agreed that E should make bricks in the yard, and pay H & L at a certain rate for the clay, and that H & L should purchase wood, sell the bricks, &c.j that the profit or loss should be divided between them 5 and that H & L should have power to retain the bricks in their possession to the amount of all sums of money which they might from time to time advance to E. Afterwards E drew an order on H & L to pay one D what sums might be due to E from the sales of the bricks after deducting the amount due toH&L for their advances. Afterwards H &L assigned all their property to the plaintiffs, including their interest under the contract above mentioned, and the plaintiffs went into the brick-yard and gave E notice of the assignment, and he assented to it, and agreed to act as agent of the plaintiffs 5 who on their part agreed to make advances in the same way that H & L were to do under the original contract. The plaintiffs took possession of the brick-yard and of property therein, and by writing gave the charge of it to E, with directions to sell the bricks at retail for cash, and whenever a certain sum should be received, to deposit it in a bank to the plaintiffs' credit. The bricks were subsequently attached at the suit of a creditor of E. In an action of replevin by the plaintiffs against the attaching officer it was held, that the right of H & L to retain the bricks as security for their advances to E, was assignable, with the consent of E, and that the plaintiffs had a lien which must prevail against the attachment. It was also held, that the order drawn by E was admissible in evidence, as tending to establish the original contract on the part of E, that H & L should retain E's part of the bricks as collateral security.</p> <p>Although there cannot be a pledge, technically speaking, of a chattel not in existence, . there may be an hypothecation, so that as soon as the chattel shall be produced the lien will attach. Thus where it was stipulated by" a brick-maker, that the lessees of a brick-yard should retain the bricks to be made, as security for their advances to the brick-maker, it was held, that the bricks became pledged as fast as they were manufactured.</p> <p>Possession of a chattel by the vender or pledger is only evidence of fraud 5 which may be rebutted by proof that he held possession as the agent or servant of the vendee or pledgee.</p>

<p>Jnder the St. 1784, c. 72, § 11, which provides that every master of a ship that shall carry or transport out of this government an infant, &c., without the consent of his parent, &c., shall be liable for the damages sustained by the parent, &c., in a special action of the case, no action can be maintained by the infant’s mother and stepfather, for they have no legal right to the minor’s society or services.</p>

<p>T-his was a writ of entry, commenced November 29, 1831, in which the demandant alleged a seisin of the demanded premises in fee and in mortgage within twenty years, and a disseisin by the tenant. Plea, the general issue.</p> <p>The demandant read in evidence a deed of mortgage from Benjamin Wild to Theodore Reed, dated March 24, 1826, and recorded on the same day ; an assignment of the mortgage, by Reed to Rufus Litchfield, dated November 25, 1828, and recorded on July 17, 1830 ; and a second assignment of the same, by Litchfield to the demandant, dated August 30, 1831, and recorded on October 17tb, 1831. There was no evidence of any actual entry upon the premises by the mortgagee or either of the assignees of the mortgage.</p> <p>The tenant gave in evidence a deed made by Moses Prichard, a deputy sheriff, to the demandant, dated September 12, 1831, of all the right in equity which J. W. Tuttle and Thomas Brown, or either of them, had, to redeem the mortgaged premises ; which deed recited a sale thereof to the demandant on August 22, 1831, by virtue of an execution.</p> <p>The demandant contended that this evidence was net admissible on the part of the tenant, under the general issue. The tenant contended that it was admissible, and that the assignment of the mortgage to the demandant after he had purchased the equity of redemption, operated as a discharge of the mortgage, or an extinguishment or merger of it, so that the demandant could not maintain this action upon it, because he could not be at the same time the mortgager and mortgagee of the premises.</p> <p>The tenant also insisted, that the assignments did not give the demandant such an actual seisin within twenty years as his writ alleged.</p> <p>The tenant was the assignee of the right in equity to redeem the premises in one year from the sale on execution.</p> <p>Upon this state of the evidence the cause was taken from the jury, with the assent of the parties that judgment should be entered upon nonsuit or default, according to the opinion of the whole Court.</p>

Indictment for adultery committed by the defendant with Cynthia Blood, in January 1830. At the trial in the Common Pleas, before Strong J., the marriage of the defendant with Betsy Merriam, who was living, was first proved.

<p>Trespass for breaking and entering the plaintiff’s close in July 1827 and subsequently, and cutting and carrying away the plaintiff’s grass and trees therein growing.</p> <p>The defendant pleads, that the locus in quo was his soil and freehold.</p> <p>The plaintiff replies, that the- defendant, by his writing obligatory, dated December 1, 1824, demised the close to the plaintiff to hold as tenant at will, and that the defendant committed the trespasses during the continuance of the lease.</p> <p>The bond above mentioned states that the defendant has taken a deed of the land from Jacob Sanders ; that the plaintiff is in possession and is to keep possession of the same, and is to cut off the timber that is fit to saw, and carry the same to the defendant’s mill in order that the defendant may have the profit of sawing the same, and that the plaintiff is to pay the defendant the sum of 110 dollars and interest in one year from the date ; and the condition is, that the defendant shall deliver to the plaintiff a warranty deed of the land, after the plaintiff shall have performed what on his part is to be done.'</p> <p>• The defendant, after oyer of the bond, demurs ; and the plaintiff joins in demurrer.</p>

<p>Upon a case stated it appeared that this was an action of debt against the sheriff of Middlesex, for the alleged escape of one Loring, who had been committed on execution. Loring was admitted to the liberty of the yard, upon giving bond to the defendant’s deputy, the gaoler, conformably to the statutes, except that the surety in the bond was not approved by the plaintiff, and approved by one only, instead of two justices of the peace quorum unus. If upon these facts the plaintiff could sustain his action, the defendant was to be defaulted, and judgment was to be rendered for such sum as the Court should direct; otherwise the plaintiff was to be nonsuit.</p> <p>The action was commenced before the enactment of St. 1833, c. 134, abolishing the action of debt for an escape.</p> <p>Wilde, for the plaintiff, insisted, that to bring the bond within the statutes, the surety should have been approved either by the creditor, or by two justices of the peace. St. 1784, c. 41, § 8; 1811, c. 167, § 1.</p>

The case of Mayo et al. v. Fletcher, 'was trespass for breaking and entering the plaintiffs’ dwellinghouse. In the Court of Common Pleas it appeared, that in March 1831, Daniel Blaisdell assigned to the plaintiffs all his property, in trust for the benefit of his creditors.

<p>The making of a codicil, duly attested to pass real estate, and referring to the will,,is a republication of the will, so as in effect to incorporate the codicil with the will, and give to such combined instrument the same effect as if executed at the date of the codicil.</p> <p>A testator, by his will, gives one half of all his estate to his brother John for life, and the other half, together with the remainder of the first half, in equal shares and in fee simple to all the children of his brother Andrew and his sister respectively, with survivorship if any of them shall die in minority. He afterwards purchases other lands, and then makes a codicil, which he directs to he annexed to the will and to be considered and taken as part thereof, and in which he revokes and annuls every bequest and devise made by the will to the children of his sister, and gives all and every part of his estate, of whatever description, which is in the will in any way given to the children of his sister, to the children of his brother Andrew, and rati fíes and confirms the will in every thing except where it is revoked and altered bj the codicil. It was held, that the will was republished by the codicil 3 that it contained words sufficient to embrace all the testator’s estate held at the time of making the codicil, and of course no part of the property descended as intestate estate 3 that the clause of revocation in the codicil extended to the after-purchased land 3 and that the portion of (he estate, including the after-purchased land, which but for the clause of revocation would have gone to the children of the testator’s sister, was, by the codicil, devised to the children of Andrew.</p>

<p>Howe, the supposed trustee, disclosed in his answers, that Butler was in his employment at the time of the service of the trustee process and bad then been in his employment aoout four years ; that Howe was in the employment of Ed garton, Whitcomb & Co., in Shirley, in the manufacture of paper, and had the control of the mill; that by his contraot with them,' they furnished him with the mill and the stock, and he manufactured the paper ; that it was a part of the contract with them, that they should answer orders drawn upon them in favor of the laborers employed by him in the manufacture of paper in the mill, which orders were not to be negotiable, and that in this way all his hands should be paid by Edgarton, Whitcomb & Co. ; that the only condition in relation to the orders was, that Howe should not draw for a greater amount than he was entitled to receive from Edgarton, Whitcomb & Co., in doing their work and for paper; that he accordingly agreed verbally with Butler, that Butler should work for him in the manufacture of paper, and should from time to time receive his pay in orders drawn upon Edgarton, Whitcomb & Co. as above mentioned, and in no other way ; that at the time when this process was served upon Howe, there was due to Butler the sum of $219-06, for his work under his contract; that Howe had always been ready to draw orders in favor of 'Butler upon Edgarton, Whitcomb & Co., not negotiable, for the wages above mentioned, and had not been called upon by Butler for such orders and refused or neglected to draw them ; that the understanding between Butler and Howe was, that if Bt tier should be indebted to Edgarton, Whitcomb & Co. when Howe should draw an order in favor of Butler, a discharge of such debt should be equivalent to an acceptance and payment of the order to the same amount; and that during the whole time that Butler was in Howe’s employment, Howe had sufficient funds in the hands of Edgarton, Whitcomb & Co., so that an order drawn upon them in favor of Butler for his woik, would have been accepted.</p> <p>The case was argued in writing.</p>