Volume 32 — Massachusetts Reports

<p>Where a warrant from a captain in the militia seasonably delivered to a private m his company, to warn a company meeting, contained a notice to such private to appear himself at the time and place appointed, it was held, that such private was duly warned.</p> <p>A captain in the militia has no authority to exempt a private from the performance of military duty on account of bodily infirmity, upon the certificate of a physician who is not a surgeon or surgeon’s mate of the regiment, and does not reside within the bounds of the regiment.</p> <p>An excuse for non-appearance of a private, which is required by the statute to be made within twenty days after any training, &c., cannot be made with effect before the training, &c.</p>

<p>The enrolment in the militia, of L. C. junior as L. C. second, was Iteld to be valid, junior and second being no part of the name.</p> <p>A ti orderly book of a company of militia containing a record that the company was ordered to assemble at a time and place specified, and that certain members named were absent, was held to be sufficient evidence of the meeting of the company, and of the non-appearance of the members named.</p> <p>L. C., who was not liable to military duty, and L. C. junior, who was liable, lived within the bounds of a company in the militia. On the roll was the name “ L. C. second ”; in an order to a sergeant for calling a meeting of the company, he was directed to warn e< L. C.”; and he made out a notification directed to ** L. C. junior,” which was served on L. C. junior. Held, that L. C. junior was legally warned.</p> <p>A sergeant who is directed to notify a c.ompany meeting, may send the notifications by an agent or servant. — Thus, where the captain, at the request of the sergeant, left a notification at the house of a private, the warning was held to be legal, (But see Revised Stat. c. 12, § 89.)</p> <p>The neglect of the clerk of a company to record in the orderly book an order of the captain for calling a company meeting, will not be an excuse for the non-attend-once of a private.</p> <p>Where a notification was left at the house of a private, but he avoided going home in order that he might not receive it, he was held to have been duly warned.</p>

<p>Previously to the execution of a bi-partite deed of assignment of the property ol an insolvent debtor, in trust for the payment of his debts, the debtor called upon one of his creditors with the sole view of preventing him from being shocked at the news of the assignment, proposed the making of such assignment, and exhibited to him a sketch of the mode in which the proceeds of the property were to be disposed of, and this sketch, so far as regarded him, was substantially made a part of the deed. It was held, that this was not a sufficient assent to the assignment on the part of such creditor, although he was preferred therein, as against an attaching creditor.</p> <p>In the same case, it appeared, that the assignment was executed in Rhode Island; that the assignor and assignees, by whom alone the deed was executed, were citizens of that State ; that ubsequently to the execution of the assignment, a citizen of Massachusetts, who was indebted to the assignor, was summoned as his trustee in Massachusetts, at the suit of a creditor, a citizen of Massachusetts ; and that such debt was not wanted to satisfy the debts due to the assignees. It was held, that the assignment was invalid as against such attachment, whatever might be the effect of such assignment by the law of Rhode Island.</p>

<p>Assumpsit to recover the expenses incurred by the plaintiffs in the support of Jason and Lucy White and their children, and the expenses of the burial of Jason White. The legal settlement of the paupers was in Mansfield.</p> <p>At the trial, before Morton J., it was proved, that the paupers became chargeable to the plaintiffs in the autumn of 1826 ; that Jason White died on October 8, 1826 ; that on October 18, 1826, the overseers of the poor of Attleborough gave due notice thereof to the overseers of Mansfield ; that on October 11, 1826, Lucy White went to the house of Zachariah White, her father-in-law, who gave information thereof to the overseers of Attleborough; that thereupon the overseers of Attleborough agreed with him for the support of the paupers, till further orders ; that soon afterwards, two of the overseers of Mansfield told Zachariah White, that if he would keep the paupers two days, they would come and remove them ; he saying, that he would charge nothing if they removed them, • according to their agreement ; that the overseers of Mansfield did not remove the paupers ; and that afterwards another overseer of Mansfield called at Z. White’s and told him to keep Lucy White till she was taken away, and to charge the expenses of her support to the town of Attleborough ; that in about four weeks, Lucy White and two of the children went to the house of her father John Hall, in Norton, and remained there till some time in December, when she went to one Thacher’s, in Attleborough, by whom she was hired as a nurse ; and that while they were at Hall’s, he saw the overseers of Mansfield, and told them, that while she lived with him, no charge should be made for her support, and that if she went to Attleborough and became chargeable, he would let them know it.</p> <p>It was further proved, that Thacher paid her wages for a few weeks, when she became unwell and left his house ; that after her recovery she returned and continued with him several weeks without receiving wages ; that she was then again taken sick, and died at his house about the last of June 1827 ; that notice was given by Thacher to the overseers of Attleborough, of her being chargeable in her last sickness ; that her furniture and effects were never removed from Attleborough till after her decease, when they were taken away by one of the overseers of Mansfield ; and that the expenses incurred by the town of Attleborough in the support and funeral charges of the paupers, amounted to the sum of $62-31.</p> <p>There was no evidence that the town of Attleborough had knowledge of any attempt by the town of Mansfield, or its overseers, to remove or provide for tire paupers.</p> <p>The defendants brought into court the sum of $24, which was sufficient to cover all the expenses at the time of the death of Jason White, including those of his burial.</p> <p>The defendants contended, that as no expenses were in curred by the town of Attleborough, from October 10, 1826, until the last of June 1827, the defendants were not liable in this action for any expenses incurred after October 18, 1826, on the ground, that they had not received notice.</p> <p>The defendants were defaulted. If the plaintiffs were entitled to recover, judgment was to be rendered in their favor; otherwise, they were to he nonsuited, or such other order made, as in the opinion of the whole Court the case should require.</p>

<p>A grantor <*o.weyed by deed " all his right, title, interest and estate, in and to all the estate, real, personal or mixed, which J. C. and J. C. junior died seised or possessed of.” It was held, that the deed operated as a conveyance of the interest of the grantor xn all the estate, whether joint or several, of J. C. and J. C. junior.</p> <p>Where an execution issued against the owner of an equity of redemption, was extended on the land, and the return alleged, that the debtor’s right in the premises was appraised, it was held, that the extent was invalid ; for it did not appear, by the return, that the appraisers excluded the mortgage from their consideration in making the appraisal.</p> <p>If an officer, having levied on land of the debtor, returns that he chose two of the appraisers, “A, the debtor, having neglected to choose one,” when in fact B xvas the debtor, the error (unamended) is fatal to the levy.</p> <p>The levy of an execution against a husband, upon his wife’s land during his life, although the return do not show whether he is entitled to the curtesy or not, will pass his interest, whatever it may be, in the land.</p> <p>So, where such execution is extended upon all the interest and estate of the husband in land of the wife, but the return does not describe the land as being held in right of Ü e wife, the extent will pass all the interest of the husband therein, from whatever source his title to it may have been derived.</p> <p>A husband’s life estate in his wife’s land may be levied on, either by taking the rents and profits for a definite period, or by taking the whole life estate at an appraisal of the 7alue founded on a proper estimate of the probability of human life.</p> <p>But where the whole life estate is of more value than the amount of the execution, it seems that the more proper, if not the only mode, is to levy on the rents and profits until they shall satisfy the execution.</p> <p>The St. 1805, c. 90, $ 2, provides for the allowance to the widow of an intestate, of her wearing apparel “ and such further necessaries as the judge of probate shall acdet, '•egard being had to the state of the family under her care.” It was held, that if any person is dissatisfied with the allowance made to the widow by the judge of probate, his remedy is by appeal ; and that this Court will not collaterally inquire into the exercise of this discretionary power, however disproportionate to the whole estate the allowance may seem.</p> <p>Where a license is granted to an administrator to sell the real estate of the intestate for the payment of his debts, and the administrator becomes the purchaser, either directly or indirectly, the sale is not absolutely void ; but it may bé either avoidea or confirmed by the heirs or their assignees ; and in such case, they are not bound to act jointly, but each one has an individual right of election.</p> <p>Where an administrator was licensed to sell real estate of the intestate for the payment of his debts, to the amount of $640, and he sold the whole, which consisted of several parcels, for the sum of $953*33, it was keld9 that the sale was wholly void, although such real estate was under a mortgage.</p>

Trespass quare clausum. Plea, the general issue. At the trial, before Putnam J., it appeared, that Seth Shepard, by his deed dated December 28, 1826, conveyed to the plaintiff certain real estate, including the locus in quo ; that at the same time a bond was executed by the plaintiff, conditioned, that he should, on the payment of certain notes by Seth Shepard, the obligee, which had been signed by the plaintiff as his surety, reconvey such real estate to him ; and that the…

<p>This was assumpsit for the rent of school rooms, for labor in preparing seats, desks, &c., for the school, and for materials furnished.</p> <p>At the trial in the Court of Common Pleas, on the general issue, before Williams J., the plaintiff produced in evidence the records of the proceedings of the town of Westport, at a meeting held on December 21, 1816 ; at which meeting, the town was divided into eighteen school districts. It was admitted that afterwards, but before the present cause of action accrued, some alteration had been made by the town in the limits of the school district No. 2.</p> <p>The plaintiff also offered in evidence the records of the proceedings of the town at a meeting held on April 6, 1829, and, by adjournment, on the second Monday of May 1829 ; at which meeting Abner B. Gifford, N. C. Brownell, and James H. Handy were elected the general school committee of the town, and Jeptha Gifford, the prudential committee of school district No. 2, for the then next ensuing year. The record of a vote of the town was also produced, by which the sum of $850 was appropriated for the support of schools for the ensuing year, to be apportioned in such manner as the selectmen might judge best under certain circumstances.</p> <p>The plaintiff then called Jeptha Gifford as a witness. The defendant objected to his competency ; but the objection was overruled. The witness testified, that there was no schoolhouse in district No. 2 ; that in June, 1829, he, as prudential committee, contracted to hire a room of the plaintiff, for the district school, at a rent of one dollar a month; that the plaintiff was to provide the necessary benches, &c., and was to be paid therefor in addition to the rent; that the plaintiff accordingly provided a desk and benches for the use of the school; that the witness hired one Alithea Allen to teach the school, and that she kept it for four months, in the room thus provided; that he paid her therefor the sum of $18-33 ; that, of this sum he received $8-20, out of the money raised by the town and appropriated to the school district No. 2, for a summer school; and that the residue was paid out of his own funds ; that in the autumn of the year 1829, he again hired of the plaintiff a room for the district winter school, at a rent of three dollars a month ; that the witness hired Joseph Crapo, to keep the winter school, for the sum of $10 a month ; that Crapo accordingly kept the school for the term of three months ; that Crapo was wholly paid out of the money raised and appropriated to the support of schools by the town; and tnat the witness gave notice to the district generally, of the establishment of such schools.</p> <p>No evidence was offered to prove that Alithea Allen had been approved as an instructer by the school committee of Westport. A certificate signed by Abner B. Gifford, in behalf of the school committee of Westport, was produced, by which it was certified that Crapo was in his opinion competent to teach the school.</p>

<p>Where an accountable receipt given for goods attached, set forth that they were at* tacked as the property of the debtor, but the goods, in fact, belonged to the r8« ceipter, it was held, in an action brought by the attaching officer on such receipt, that it was not void as being given without a consideration; and that the receipter was estopped from alleging, by way of defence, that the goods were his own property.</p> <p>In the same action, the receipter introduced paroi evidence to show, that the goods were his property at the time when the receipt was given and were claimed by him as such, and that he signed the receipt upon the plaintiff’s telling him that he thought his chance for holding the property, if he receipted for it, would be better than if he permitted it to be removed. It was held, that this evidence was inad missible to affect the construction of the receipt; but that it was admissible on the question of damages.</p>

This was an action on the case against the defendants as assessors of the town of Truro, for illegally assessing and causing to be collected by distress, a tax on the poll and a portion of the real estate of the plaintiff, in 1830, the plaintiff alleging, that his residence and the real estate taxed, were in the town of Wellfleet.

<p>This was assumpsit for repairs made during the years 1827 and 1828, upon certain real estate conveyed by Thomas Brownell to the defendant, by deed dated September 11, 1820, and recorded at the same time.</p> <p>At the trial, before Putnam J., the defendant contended, that the credit for the repairs was given to Waty Brownell.</p> <p>The defendant, for the purpose of proving, that the real estate was conveyed to the defendant in trust for Waty Brown-ell, and that the plaintiff knew this, at the time when he performed the services, offered evidence showing, that the defendant and Waty lived together on the real estate ; that Waty had the entire management of the house and farm, and that the defendant paid her for her board ; that Waty paid for all the labor done on the farm, and received the rents and profits to her own use ; that the plaintiff boarded with Waty while he was making the repairs ; that it was generally reported in the neighbourhood, that the real estate was held in trust by the defendant; that in October 1828, the defendant conveyed it to Waty, and that the consideration specified in the deed was the same as that in the deed from Thomas Brownell to the defendant ; and that after the commencement of this action, the plaintiff was married to Waty.</p> <p>The plaintiff objected to the admission of this evidence , but it was ruled to be admissible.</p> <p>The jury returned a verdict for the defendant.</p> <p>If the evidence was not admissible, the verdict was to be set aside and a new trial granted.</p>

<p>This was assumpsit on a promissory note for the sum of $ 300, dated December 1829.</p> <p>At the trial, before Putnam, J., the defendant offered paroi evidence to prove, that when the note was given, he had made an assignment of all his property, to be divided, ratably, among such of his creditors as should become parties to such assignment, and thereby discharge the defendant from all their claims against him; that the note in question was given by the defendant to induce the plaintiff to become a party to the assignment, and was post-dated; and that when it was given, it was agreed between the parties, that it should stand as security for the difference between the amount of the plaintiff’s claim against the defendant and the amount which he should receive under the assignment; that it should not be paid until the settlement of the affairs of the defendant under the assignment, and that then only, such part should be paid. as the assigned property should be insufficient to pay.</p> <p>The plaintiff objected to the admission of this evidence; but the objection was overruled.</p> <p>The plaintiff thereupon became nonsuit. If the evidence was inadmissible, the nonsuit was to be taken off, and a new trial to be granted ; otherwise, judgment was to be entered for the defendant.</p>

<p>Where the plaintiff in replevin deposited in the hands of a surety in the replevin bond a sum of money equivalent to the penalty of the bond, with a direction to apply it in discharge of any liability that the surety might incur under the bond, it was heldt that the surety was thereby rendered a competent witness.</p>

Assumpsit upon an order, dated June 23, 1828, drawn by Andrew Gerrish junior upon the defendant, in favor of Lysander Washburn, the plaintiff’s intestate, to the following effect: — Whereas Lysander Washburn is liable to pay, on my account, sundry acceptances, the amount of which cannot now be determined, and whereas he has been trusteed by Adams & Fessenden and may be liable to the amount of 1000 dollars, costs and expenses attending the action, therefore you are hereby…

<p>A party objecting to an interrogatory filed before the issuing of a commission to take a deposition, should specify the ground of the objection, in order that the adverse party may have an opportunity to vary the interrogatory.</p>

<p>To a writ of entry on the seisin of the demandants’ father, to recover an undivided moiety of a shingle-mill and dam, of the land on which they stood, and of the stream of water, the tenant pleaded that the father did not die seised ; and it appeared, that in 1775 the great-grandfather of the demandants, being the owner of the land including the mill stream, by simultaneous deeds conveyed the land on the south side of the stream, together with an undivided moiety of the old mill, to his son Peter, the other moiety of the old mill to his son John, the demandants’ grandfather, and the land on the north side of the stream to his daughters. In 1786 the old mill was abandoned, and Peter and John built a new dam lower down, and a grist-mill, at their joint expense, Peter building the southern and John the northern half of the dam, and they occupied the mill as tenants in common until the death of John in 1807. John devised one half of what he owned in the grist-mill to his widow so long as she should remain unmarried, and his son, the demandants’ father, was made residuary devisee. There was no evidence that the widow ever entered under the devise, and the demandants’ father occupied the mill in common with Peter, from the death of John until 1816, when the dam gave way ; after which the grist-mill never again went into operation. John being told by Peter that he had no title to the land on which the dam was built, answered that his father said he might go on and build. The demandants’ father died in 1818. Afterwards John’s widow died, not having been married again. In 1827 Peter conveyed all his land to the tenant, who rebuilt the dam, removed the grist-mill and erected the shingle-mill on the same site. It was held, that the evidence proved a seisin in the demandants’ father, of the moiety demanded.</p> <p>Upon a count in the same writ of entry, to recover a moiety of the site of the old mill above mentioned, it was heldt that nt> land being granted eo nomine to the demandants’ ancestor, if the mill site passed to him, it was as incident to the mill, and the mill being abandoned, the title to the mill site failed.</p>

Replevin for two oxen, alleged to be the property of the plaintiff. The writ was dated the 24th of September, 1832, and was served on the 25th. The defendant pleaded that the property was in one Haskins, at the time of the taking by the defendant, and prayed for a return, &c. The plaintiff replied that the property was in himself; and issue was joined thereupon.

<p>Covenant broken. By an agreed statement of facts it appeared, that the defendant, on December 2, 1829, for the consideration of the sum of $580, conveyed to the plaintiff real estate situated in Middleborough, which was described in the deed as “ all that part of my land and messuage near Pope’s Point Furnace, which I purchased of John Bent, bj deed dated October 24th, 1826, and recorded in the Plymouth registry of deeds, book 165, folio 19, 20,” and defined by metes and bounds ; and that the deed contained a covenant “ that the premises are free of all incumbrances; ” which is the covenant alleged to have been broken.</p> <p>It also appeared, that the deed from Bent to the defendant contained the following reservations : “ Also, reserving a foot pathway for Sampson Perkins and Holmes Sampson, and their heirs and assigns, to go and come after water at a certain spring on said land, where it shall be the least damage and be the most beneficial; "also reserving a privilege of taking water out of the spring on said land in logs as they are fixed now, and the right of keeping them there for my use or anybody else, for my heirs and assigns or others, their heirs and assigns, for ever, and a right to put in logs for the water to run in, and not to take any more water than is taken now ; ” and that this deed contained covenants similar to" those contained in the deed of the defendant to the plaintiff; that previously to the execution of this deed, Bent, being seised of two parcels of land situated near the premises, had conveyed one of them to Perkins, and the other to Sampson, together with the privilege of going to the spring for the purpose of obtaining water ; and that these several privileges of taking water from the spring were still used and enjoyed.</p> <p>For the purpose of presenting the questions of law to the consideration of the Court, it was agreed, that it could be proved by witnesses, that on the day when the deed from the defendant to the plaintiff was executed, an officer and appraisers were assembled for the purpose of extending execu tians on the land conveyed therein, the plaintiff being one of the appraisers ; that the spring was shown to them, and a conversation was had about the logs which conveyed the water from the spring to the Furnace; that the land was appraised at the sum of $566 ; that the defendant’s wife relinquished her right of dower ; that the plaintiff paid the creditors ; that the deed from Bent to the defendant was produced by the defendant, and laid upon the *able ; that the plaintiff was present when tne deed to him was drawn, and until it was executed, that when it was read, it was mentioned, that the privileges enjoyed by the neighbours, of taking water from the spring, were not expressed ; that the scrivener thereupon replied, that it loas not necessary, as the old writings, the deed from Bent, were referred to; that the plaintiff had lived at the Furnace, before the execution of the deed to him ; that during that time, all the water used was taken from the spring, by means of logs ; that these logs were taken up, cleansed and replaced, while the plaintiff lived at the Furnace ; that there was a plainly trodden pathway from the highway to the spring by the plaintiff’s house, through a gate by the highway, which also was the passage way from the highway to the house and from the house to the spring; and that this pathway had existed twenty-five years.</p>

<p>Fhe plaintiffs, who were part-owners of a cargo of oil, applied to the defendant, who was the agent of all the owners for settling the voyage and was also a part-owner, to have their shave of the oil set off to them ; and the defendant informed them, that they might have it on the same terms on which he had sold it to P, another part-owner. It was then agreed in writing by the parties, that the oil should be stored, at a specified rate of storage, in a shed at the oil-works of the owners, that D, who was the agent of the plaintiffs, should be accountable for the storage or manufacturing of all the oil put into the shed under his superintendence; and that it should be in the possession of the defendant until regularly settled for in manner conformable to the sale of oil made to P, from the same cargo. It appeared, that the defendant had sold a large part of the cargo to P, who had given negotiable notes for the price. In pursuance of the agreement, D received and stored a quantity of the oil, it having been measured, and the casks designated by the defendant as for the plaintiffs. After the contract was made, the defendant requested the plaintiffs to give him negotiable notes for the oil so received, to be payable in the same manner as those given by P ; but they refused, alleging that they expected to give accountable receipts therefor. The defendant thereupon sold the oil to a stranger, and the plaintiffs replevied it. It was held, that the contract between the plaintiffs and the defendant, was for a sale, and not a partition; Uiatthe plaintiffs were bound to give their negotiable notes; that as no time was stipulated within which this should be done, it must be done within a reasonable time; that the plaintiffs having refused to give such notes, the defendant was authorized to sell to a stranger; and that the action of replevin could not be maintained against the defendant.</p> <p>Held also, that the defendant in such action was entitled to recover as damages, the value of the oil replevied, with interest thereon from the time of the service of the writ of replevin to the rendition of judgment, no special damage being shown; and that the valuation of the oil in the writ, was to be taken as prímá facie evidence of the true value.</p>

This was an action of assumpsit, brought originally before a justice of the peace, by Bacon against one Thomas. It was carried up to the Court of Common Pleas for the county of Plymouth at December term 1831, and was then, by agreement of the parties, referred under a rule of court. Before the April term 1832, Thomas died, and his death was suggested upon the record, and the action was continued at that and the succeeding term, for his administrator to come in and defend.

<p>Damages arising from the taking of land for a highway, may be released by a paroi agreement made before the county commissioners and entered on their records.</p>

This was a writ of entry, in which the plaintiffs claimed the demanded premises as the heirs of John Freeman. From an agreed statement of facts it appeared, that the premises were attached on July 16, 1826, by virtue of a writ in favor of John Freeman against Asa Raymond ; that judgment was recovered by Freeman; and that the premises were levied on, under the execution, on April 26, 1828..

Assumpsit for money had and received. ■ At the trial it appeared, that on July 21, 1829, the defendants held a note for the sum of $900 or upwards, made by the Pawtucket Bleaching and Calendering Company and indorsed by Archibald Kennedy, which note became due on July 23, 1829 , also an accepted draft on the same company for the sum of $220-83, drawn and indorsed by Perrin & Skinner, which became due on July 12, 1829 ; and a noté for the sum of $300, made by the same company…

Assumpsit on a promissory note for the sum of $16064, dated March 14, 1826, payable on demand, with interest, to Isaac Little or his order, and indorsed by him in blank. Plea, the general issue. At the trial, before Putnam J., it was proved by the defendant, that on February 28, 1827, there was no indorsement - on the note, and that it was then held by Little.

<p>Petition for partition. By an agreed statement of facts, it appeared that the petitioner claimed certain proportions of the real estate described in his petition, under an attachment and an extent of an execution in his favor for the sum of $2036'35, against Timothy, Samuel, and Daniel Greene ; that the attachment was made on June 18, 1829, at half past seven o’clock, P M.; that in the morning of the same daj, Tiraothy and Samuel Greene, then composing the firm of Timothy Greene & Sons, executed a bipartite deed of assignment, by which all the real estate which they held as tenants in common, including that claimed by the petitioner, and all the personal estate held by them as copartners, was assigned to Ahab Arnold, Thomas Lefavour, Daniel Greene and Wil liara R. Staples, in trust that the assignees should sell the same, and out of the proceeds should pay and discharge the expenses of the creation and execution of the trust, together with a reasonable compensation to themselves, and also certain debts and liabilities incurred by themselves and others, in the manner and order prescribed in the assignment, and then, from the balance, should pay all sums due from the partnership to all persons whatever, if the balance should be sufficient, and if not, then in a ratable proportion ; and that there was no provision in the assignment for a release by the creditors, or for their becoming parties, as creditors.</p> <p>It did not appear on the face of the assignment, or by any other writing, that any person assented to the assignment, except the assignors and assignees, before the attachment of the petitioner ; but two of the preferred creditors, Edward Walcott and Benjamin C. Harris, were present at the execution thereof, and verbally assented thereto. The assignment was recorded in the registry of deeds on June 18, 1829, at 7 o’clock A. M. The assignees immediately took possession of the property. The respondents claimed to be sole seised of the real estate in question, by virtue of a deed from the assignees, for a valuable consideration.</p> <p>It appeared, that Daniel Greene was formerly one of the members of the firm of Timothy Greene & Sons, but that in the winter before the execution of the assignment, he sold out to Samuel Greene all the real and personal estate which he owned with Timothy and Samuel -; that Daniel Greene, at the time of the execution of the assignment, failed, although he did not then make an assignment.</p> <p>The gross amount of the proceeds of the assigned property was $12,408-16.</p> <p>The claims and liabilities of the assignees amounted to $10,200-46 ; the expenses incurred in the execution of the trust Were $1,797, making together $11,997-46; leaving for the payment of the compensation to the assignees for their services, $410-70. The assignees charged for their services the sum of $1,375, and thus produced a deficit of $964-30.</p> <p>All questions as to the reasonableness and propriety of the expenses incurred under the assignment, were submitted to the Court.</p> <p>The petitioner was to take nothing by his petition, or partition was to be ordered, as should be determined by the Court.</p>

This was assumpsit on two promissory notes, made by Samuel Tobey & Son, of which firm the defendant was a member, and payable to the plaintiff or his order. The first note, which was dated December 27, 1820, was for the sum of $246, and was payable on demand. On this note there were several indorsements acknowledging the receipt of different sums of money in part payment of the note ; the last indorsement was dated November 22, 1825.

<p>Trespass quare clausum. At the trial, before Wilde 3., it was proved, that the close within which the trespass was committed, was leased by the selectmen of Hingham, for one year, in pursuance of a vote of the plaintiffs, authorizing the selectmen “ to let the town wharf as heretofore ; ” but the lease was not in writing. Before the year had expired the defendant entered, and filled up the dock. It being proved, that at least a part of the trespass was committed upon the close of the plaintiffs, it was agreed, that if it should be the opinion of the Court, that the plaintiffs could maintain the action, the defendant should be defaulted, and the damages be assessed at the sum of $20 ; otherwise, the plaintifis were to be nonsuited.</p>

<p>Devise:—I give to my daughter M and her children one half of my house and land &c. Item, I give to my daughter J and her children the other half. But if either of my aforesaid daughters should die and leave no children, my will is, that my surviving daughters and their children should enjoy their deceased sister’s part. M was unmarried at the time of making the will. J was then married, but whether she ever had any child did not appear. Held that J took an estate tail.</p> <p>A deed by husband and wife conveying estate of which they are seised in her right In fee tail, will bar the entailment, provided the requisites of St. 1791, c. 60, have been complied with. ,</p> <p>A deed of an. estate tail was made, purporting to be in consideration of a sum of money and of a lease of the land to the grantor for one year at an apparently nominal rent; and before the expiration of the lease a declaration of trust was made by the grantee, among other things, to permit the grantor to have possession during his life; arid the grantor continued in possession from the time oi giving his deed. It was held, that primó, facie the deed was given upon a valuable consideration and bond fide, and so, in these respects, was primd fade sufficient to bar the entailment.</p>

<p>This was a special action of the' case, under Si. 1785, c 52, § 2, to recover double the expense of “ amending, surveying and viewing” the partition fence between the adioining lands of the parties. The defendant pleaded the general issue.</p> <p>At the trial, before Morton J., it was admitted by the plaintiff, that a part of the line of fence between his land and that of the defendant, lay in Milton, and a part in Quincy. I also appeared, that the defendant lived in Milton.</p> <p>The plaintiff proved by the records of the town of Milton, that on March 12, 1832, Josiah Badcock and Zebediah Williams were chosen fence-viewers of that town for the ensuing year. The records contained no evidence that Badcock or Williams had taken .the oath of office ; nor had any certificate of the administration of such oath to them by a justice of the peace been filed with the town clerk. The plaintiff then produced a certificate of a justice of the peace, that on September 10, 1832, he administered to them the oath of office.</p> <p>In order to prove that due notice to repair the fence complained of had been given to the defendant, the plaintiff produced the following writing;, addressed to the defendant:</p> <p>“ Sir. We have been called upon by Esq. Rowe, (the plaintiff,) to inspect the division fence between your respective lands. We find yours to be deficient, and not according to law; six days are allowed by law for you to do it in. And, unless you then do it, the party complaining may do it, and you are bound to pay double the cost. But we are willing, with the consent of Esq. Rowe, to give you twelve days, and if done at the end of those twelve days, say 22d instant, you have to pay double the amount of charges. Which you will please take notice. Milton, September 10, 1832. Zebadiah Williams. Josiah Badcock.”</p> <p>The defendant objected that this notice was insufficient to impose any legal obligation upon him ; and the judge, being of that opinion, directed a nonsuit, and reserved the question for the consideration of the whole Court. The nonsuit was to be taken off, or made absolute, according to their opinion upon these facts.</p>

<p>Where husband and wife mortgaged the wife’s estate and continued in possession till condition broken, it was held, that the wife was rightly joined with the husband, in an action to foreclose.</p>

<p>Whether, in an action by a daughter, who, after becoming of age, and being unmarried, continued to reside in her father’s family and to be supported by him, against the administrator of her father’s estate, to recover for the performance of such useful services as it is customary for a daughter to perform, the law raises the presumption, that she was entitled to pecuniary compensation therefor, and throws the burden of proof on the defendant, to show that they were performed without any view to such compensation, qucere.</p>

<p>A testator bequeathed the sum of $500 to his sister, who was a married woman. Subsequently, on her application, he advanced to her the sum of $466, to enable her to purchase some land, and she gave a receipt therefor, whicii stated that the money was received of the testator “ in part of her right of dower in his last will.9* The testator also told her, that he was desirous of paying off the legacy in his lifetime, and offered to pay her the residue thereof, but she declined receiving it on that occasion. The husband of the legatee died before the testator. Upon the death of the testator, the legatee brought an action to recover the whole of the legacy. It was, held, that the receipt and the declarations of the testator were admissible in evidence, to show, that the payment was intended by the testator as an ademption, pro tanto, of the legacy? and that under such circumstances, the legacy was adeemed pro tanto, by the payment, notwithstanding the legatee was, at the time, a married woman.</p>

<p>In order that one may be entitled, by virtue of his possession of land for more than six years, to the value of improvements made by him on the land, it is necessary that the possession should be adverse to the owner of the land.</p> <p>Where, therefore, a person had lived with a husband and wife more than six yearss on a farm belonging to the wife, and managed the farm, receiving the profits and allowing the husband and wife their support out of the same, and made improve* nr.ents under the expectation of holding the land by devise from the wife, and the wife died, having devised the land to him, but the will was ineffectual in conse* ■ quence of having been made during the coverture, it was held9 in a real action brought against him by the heir of the wife, that he was not entitled to the value of his improvements, because his possession, if he had any, was not adverse to the title of the wife.</p>

<p>A pariah, on October 1, 1823, sold the pews in their meetinghouse on the following conditions. “ The sum bid for choice, and one third of the appraised value, shall be paid in cash, one third part in one year, and the residue in two years, with interest. The first payment to be forfeited, if the other payments are not made agreeably to the above conditions.” The defendant purchased a pew, made the first payment, entered into possession, and continued in possession until October 1831, but made no further payment. It was held, that under the contract the defendant acquired no title to the pew, but only a right to acquire a title upon a compliance with the terms of sale; that he had only a license to occupy, or a tenancy for a year, or a tenancy at will.</p>

This was an action of covenant broken, for the non-pay ment of the rent of certain real estate. By an agreed statement of facts it appeared, that on October 3, 1825, the plaintiff, being seised of a leasehold estate for a term of 999 years, in the premises, mortgaged the same to William Howe, to secure the payment of the sum of $2000 with interest.

<p>Trespass quart clausum frcgit. Trial before Morton J.</p> <p>The will of John Patch contained these provisions : — “I give and devise to my daughter Mary Lakeman, and to her heirs and assigns, my lower farm, formerly called wigwam-hill, bounded &c., thence running &e. down into the sea, with the privilege of the clams ; also one mile in length of my beach for drift wood and timber lying between the other parts sa^ heach hereinafter given to my daughter Elizabeth Choate.”—“Also, I give and devise to my daughter Elizabeth Choate, and to her heirs and assigns, that part of my farm called castle-hill, hounded &c., and half a mile of the lower end of the beach, to be measured at high-water mark, for drift wood and timber of all sorts, and all the remainder of my beach, with a privilege of digging ten barrels of clams y i,at y at the southerly end of my farm.”</p> <p>The plaintiffs claim the locus in quo, as being parcel oí the half a mile of beach devised to Elizabeth Choate.</p> <p>The defendant is the owner of the lower farm, cqfied wigwam-hill, devised to Mary Lakeman, including that part of the beach which was devised to her.</p> <p>It was proved, that on the day mentioned in the writ, one of the plaintiffs went upon the beach, and finding some sticks of timber washed ashore by the sea, attempted to take them ; but that the defendant resisted and prevented him, and took the sticks ; which, with the breach of the close, was the trespass complained of.</p> <p>Evidence was offered on the part of the plaintiffs, to show that the place where the supposed trespass was committed, was on the half a mile of beach devised to Elizabeth Choate , and on the part of the defendant, to disprove this. The defendant offered evidence tending to show that the spot was more than half a mile from the lower end of the beach as it then terminated, and for some years had done ; and'contended that all that Elizabeth Choate could claim under the will, was a mere incorporeal easement, a right to take drift wood on the lower half a mile of beach, to be measured from time to time, and as it terminated from time to time; and he offered evidence tending to show that the beach terminated at its lower end further south-east than when the will was made and the testator died.</p> <p>But the judge instructed the jury, that the soil and freehold in the beach were devised to Elizabeth Choate ; that the devise passed the lower half a mile of beach as it terminated when the will was made and the testator died ; and that this was a fixed and stable freehold.</p> <p>The defendant contended also, that the plaintiffs had no right of action of any kind.</p> <p>The verdict was for the plaintiffs.</p>

<p>Trespass. In the writ the plaintiff is called of Newburyport in the county of Essex, and the defendant is called of Phippsburg in the county of Lincoln and State of Maine.</p> <p>The plaintiff declares, in his first count, that the defendant, at Fox Island, in Phippsburg, to wit, at Newburyport in the county of Essex, with force and arms, took and carried away the plaintiff’s small fish house or camp and converted the same to his own use.</p> <p>The second count has the same venue, and sets forth that the defendant, with force and arms, burnt up and utterly destroyed one wooden camp or small house belonging to the plaintiff and converted the same to his own use.</p> <p>The defendant pleads the general issue.</p> <p>At the trial, beforé Morton J., the plaintiff proved by the depositions in the case, that the defendant intentionally and maliciously burnt the camp. It is described as a building about nineteen feet square, with one story and no cellar, which was used by the plaintiff and his men to live in every spring while he carried on the salmon fishery, which he had done for several years. The defendant called it “ the old shanty.” One of the deponents called it “a camp,” and the defendant also called it “ a camp.” Another deponent described it as “ a building owned and occupied by the plaintiff, which stood on Fox Island.”</p> <p>The defendant objected, that for aught that appeared in evidence, the land upon which the house stood wras the soil and freehold of the plaintiff, and that the plaintiff’s action ought to have been trespass quare clausum fregit, and so could not be brought in a court in this commonwealth; and on this ground the defendant moved for a nonsuit. The judge overruled the objection; and thereupon the defendant was defaulted, and judgment was entered by consent, for forty dol lors, subject to the opinion of the whole Court. If the diiection of the judge was' erroneous, a new trial was to be granted.</p>

<p>Assumpsit against the administrator of the estate of Benoice Johnson, to recover the sum of $134-33 for boarding Benoice Johnson junior, a son of the intestate, from March > 27, 1827, to July 28, 1828. The counts were upon an account annexed to the writ and the common money counts. Trial before Putnam J.</p> <p>Marshall Loomis, a son of the plaintiff, deposed, in support of the action, that Benoice Johnson junior boarded at the plaintiff’s house in Cornville, Maine, from the last Friday of March 1827, with occasional absences, till July 28, 1828 ; that he was married on that day, when he left the plaintiff’s and went to live at the house of his wife’s father ; that when he came to the plaintiff’s, he had no money, and no clothes except those which he then wore; that he was intemperate, reckless, and improvident, and incompetent to take care ol himself or of property ; that he was in the habit of saying that he would not work, and that his father should maintain him ; that the deponent was present at a conversation between the intestate and the plaintiff, at the plaintiff’s house, on July 27, 1828, when the intestate first addressed his son and told him to stay at the plaintiff’s and make it his home, and then, turning to the plaintiff, the intestate said, “For what you have already done and what you shall do for my son, I will see you paid hereafter for your services, expense, and trouble;” that the next morning the intestate told tl.e deponent, as agent to the plaintiff, to pay the money taxes of his son and he would pay the plaintiff; that the deponent accordingly paid a money tax, amounting to $1-60, as charged in the plaintiff’s demand ; and that the plaintiff was the brother-in-law of the intestate, having married his sister.</p> <p>The plaintiff produced a letter from the intestate, dated August 25, 1828, in which he says in regard to his son, “ Do what you think proper for him that is necessary, and no more, for which you will not suffer.”</p> <p>It was testified that Benoice Johnson junior was about forty years of age ; that he failed in business during the last war ; that he was for a long time absent from Marblehead, the place of the intestate’s residence, and that he returned to Marblehead in 1826 or 1827 ; that he was then in a very ragged condition ; that he went first to the house of one Appleton, where he stayed about a week and was clothed by Appleton, and then went to the intestate’s house, and stayed there from three to six months, and the intestate furnished him with some new clothes ; that he performed no services for the intestate ; that previously to 1827, he had been engaged in privateering ; that his habits were very bad ; and that the intestate was in easy circumstances.</p> <p>lhe counsel for the defendant contended, that Benoice Johnson junior was emancipated ; that the consideration for the alleged promise of the intestate was past and executed, and according to the case of Mills v. Wyman, 3 Pick. 207, the intestate was not liable ; at any rate, that" he was not liable for more than one day’s boarding, which took place after the promise ; and that the evidence of the declarations of the son, as set forth in the deposition of M. Loomis, was hearsay and should be struck out.</p> <p>The counsel for the plaintiff contended, that there was a beneficial consideration for the promise ; that the intestate received his son after his return to Marblehead, as one of his family, and instead of supplying his wants at home, procured the supplies at the house of the plaintiff.</p> <p>A nonsuit was entered by consent, subject to the opinion of the whole Court.</p>

<p>roll of a company in the militia, with arbitrary pencil marks, was held to be insufficient to prove a member’s absence from a muster; and the testimony of the clerk of the company in explanation of such marks, was held to be inadmissible.</p>

<p>Assumpsit. The first count in the declaration alleged, that the defendant, on March 1, 1832, being indebted to the plaintiff in the sum of $506-41, for the purchase of 162 sides of leather, weighing 2132$ pounds, at 23$ cents a pound, and the inspection thereof 2 cents on a side, $3-24, amounting in the whole to the sum of $509-65, with interest from March 1, 1832, in consideration thereof promised to pay the plain tiff that sum on demand ; but that he has refused so to do.</p> <p>The second count alleged, that on January 10,1832, in consideration that the plaintiff, xat the special request of the defendant, had bargained and sold to him 276 sides of tanned leather at the rate of 23$ cents a pound, cash payment, and had agreed to deliver the leather to him, the defendant promised the plain tiff to accept the leather and to pay him therefor at that rate, the weight of the leather to be determined by the lawful inspection thereof; that afterwards, in the same month of January, the plaintiff delivered to the defendant 114 sides, parcel of the 276 sides, and the defendant accepted the same; that from the time of the promise the plaintiff has been ready and willing, and on March 1, 1832, offered to deliver to the defendant the remaining 162 sides, weighing 2132^ pounds as ascertained by the inspection, and requested the defendant to accept the same, and to pay the plaintiff the price thereof, amounting to the sum of $509-65, pursuant to the contract; but that the defendant refused to accept them or to pay for the same or any part thereof.</p> <p>The declaration also contained the general counts. At th<> trial, before Morton J., the plaintiff produced as a witness one Proctor, who testified, that he was present when the contract for the sale of the leather was made ; that, as he understood it, the defendant was to take the lot, which consisted of 270 or 280 sides, and to pay 23| cents per pound, cash ; that the defendant wanted 100 sides or thereabouts taken out of the vats immediately, and the remainder, in the course of four or six weeks, at such times as that it could be dried without freezing, and that he agreed to take so much of it as should be stamped “ Good,” by the inspector ; and that some would probably be rejected by the inspector.</p> <p>Andrew Tow, called by the plaintiff, testified, that the plaintiff left the leather at his (Tow’s) tannery, gave him the weight of it, and wished him to deliver it to Hosea West, when he should call for it on the part of the defendant; and that 100, 115, or 120 sides of it were delivered to West, for the defendant, in the beginning of February, 1832.</p> <p>It was admitted by the plaintiff, that the leather so delivered to the defendant, and which, in fact, consisted of 114 sides, was paid for by the defendant.</p> <p>The jury returned a verdict for the plaintiff. The defendant moved for a new trial, because the evidence was not sufficient to warrant a verdict for the plaintiff on any of the counts in the declaration.</p>

<p>Br the answer of the trustee it appeared, that in the summer of 1832, the principal and trustee were employed by J. B. Lord and others, of Portsmouth, N. H., to caulk some vessels building in that town ; that on November 16, 1832, the principal and trustee determined to settle their accounts with their employers, receive payment and return to their homes in Salisbury, in this county ; that, on the same day, they had their accounts made out separately, they not being in partnership, and went to the counting-room of their employers to receive payment ; that their employers having only money enough on hand to pay a portion of their accounts, the balance was paid by three checks on different banks in Portsmouth ; that the principal told the trustee to take the checks and get the money for them, and that they could divide the money when they arrived home; that the proposal was assented to ; that the trustee accordingly went to the banks and received the money, which amounted to the sum of $92 ; that they returned in company to Salisbury; that after their arrival they parted, and the principal agreed to come the next morning and receive his portion of the money, which amounted to the sum of $46 ; but that before it was paid over to the principal, the trustee was summoned under the trustee process, at the suit of the plaintiff.</p> <p>It was agreed by the parties, that the amount of the checks was received by the trustee in bank-bills.</p> <p>In the Court of Common Pleas, the trustee was held to be chargeable; and he thereupon filed exceptions to the decision of that court.</p>

Error. Tne present defendant sued out a writ of replevin against the present plaintiff, under St. 1789, c. 26, § 1, for the liberation of certain cattle which had been impounded, returnable before Asa W. Wildes, Esquire, a justice of the peace ; and upon a trial, the justice rendered judgment in favor of the present defendant.

<p>Assumpsit to recover a balance of $224-87. Plea, the general issue.</p> <p>At the trial, before Putnam J., it was proved, that the plaintiffs were commission. merchants in Boston, and that the defendant lived in Westfield; and that the plaintiffs sold a quantity of gin for the defendant, on December 6, 1823, o Joseph Andrews, then a trader in good credit, belonging to Salem. The sale was upon a credit of six months ; which expired on June 9, 1824. Andrews continued in good credit until his death, which was on August 17, 1824, but died insolvent. The plaintiffs, on November 12, 1824, before they knew that the estate of Andrews was insolvent, rendered an account current, in which they gave credit to the defendant for the net proceeds of the gin. They charged b ick the amount in July 1825, and in a letter to the defendant, dated November 4, 1825, in which they explain the charge, they say, —“ We have delayed notifying you of the situation of this debt, because we presumed, till very recently, that the whole or a portion of the debt would have been paid by the executors of Andrews long before this. As soon as we learnt that they had determined to represent the estate insolvent, and commissioners were appointed, we filed in this claim and charged it to your account, because we wished to have as many accounts on our old books settled as possible, intending to credit you or pay you the amount we shall hereafter receive.”</p> <p>It was proved that it was usual, m sales by a factor in Boston, to give a credit of six months ; and that the amount of sales is credited immediately to the account of the principal, and charged back in case of the failure of the purchaser, provided the factor has not been negligent. The plaintiffs had no commission for guaranteeing the debt. There was evidence tending to prove, that punctual payment for goods sold to country dealers was not expected, and that this was well known to consignors ; and that Salem, in this respect, was regarded as country ; that it was usual for commission merchants to collect debts immediately upon their becoming due, of purchasers within the city ; but to wait one, two or three months on country purchasers supposed to be in good credit; that country dealers usually pay a little more for goods, than persons living in the city ; that the usage was, not to drive country dealers of good credit, but to charge them with interest after a certain time ; and that it was not usual to give notice to the principal in such cases, of the non-payment of the debt. But there was evidence tending to show, that commission merchants collect of all indiscriminately, when the debt becomes due, whether they live in the city or the country ; and that any extending of the credit or delay of collection, is at the risk of the commission merchant; and that Salem is not considered as country.</p> <p>It was contended for the plaintiffs, that they had not been guilty of any neglect, and having paid the money under a mistake, they were entitled to recover it back.</p> <p>On the other hand, it was claimed for the defendant, that the plaintiffs, by neglecting to collect the money when it became due, had made the debt their own ; that, at any rate, giving the defendant credit in account, in November, after Andrews died, made the debt their own, notwithstanding it was not found out, until afterwards, that the estate of Andrews was insolvent; that the plaintiffs gave no notice to the defendant, of the situation of the debt, until November 1825; and that if there was such a usage as the plaintiffs attempted to prove, it was void for uncertainty, and also because it would put the property of the principal at risk for the benefit of the factor.</p> <p>When the cause was about being argued to the jury, to obtain their opinion whether the plaintiffs had been guilty of any neglect in transacting the business for the defendant, it was agreed that the verdict should be taken for the plaintiffs ; and if upon the facts proved they could retain it, judgment was to be entered accordingly ; otherwise the plaintiffs were to become nonsuit.</p>

<p>Where a party claiming a title to land relies upon a deed in which he is not the grantee, and.which is not in his possession or under his control, he may give in evidence an office copy.</p> <p>As by our statute a deed cannot be recorded until it has been acknowledged before a magistrate, the registry is primd facie evidence of its authenticity j and where a copy is admitted in evidence, no other proof of execution need be produced.</p> <p>tn the absence of other evidence, a deed of land duly acknowledged and recorded, raises a presumption that the grantor had sufficient seisin to enable him to convey, and also vests the legal seisin in the grantee.</p> <p>The devisee of vacant and unoccupied land has, by operation of law, without an entry, such a seisin as will enable him to maintain a writ of right.</p> <p>A writ of right may be maintained without proof of an actual perception of profits.</p>

<p>In an action of debt on a recognizance, against a surety, the declaration alleged, that on May 19, 1832, the principal and surety entered into a recognizance before the Police Court of Boston, conditioned, that if the principal should personally appear before the Municipal Court, to answer to such matters and things as should be objected against him on behalf of the commonwealth, but more especially to the complaint of C. H. made on oath before the Police Court, on May 19,1832, for stealing from the person of C. H. a pocket-book and its contents, of the value of $27*25, then the recognizance should be void, and that otherwise it should be in full force ; that the recognizance was in pursuance of an order of the Police Court, on the hearing of a complaint against the principal for the crime of felony, and was thereupon duly returned to the Municipal Court; that at the Municipal Court, the principal made default; that record of default was there duly made; that the recognizance was thereupon estreated and filed of record in the Court of Common Pleas, with the exemplification of the record of the Municipal Court, in order that it might be put in suit; that all these proceedings appear by the records if these courts; and that thereupon an action accrued to the commonwealth against the surety. On demurrer, because it did not appear by the declaration and the re® cognizance, that any process was pending in the Police Court against the principal, for any offence of which that court had jurisdiction, and that such proceedings were had as would authorize that court to take the recognizance, and because it did not appear, that the'principal was brought before that court for examination or trial and put to plead to the complaint, and that he did plead thereto, and that the court had considered, that there was probable cause for believing the principal guilty of any offence of which the couit had jurisdiction, and had therefore ordered him to recognize, it was held, that the declaration was sufficient.</p>

<p>Where part of a lot of land under lease is taken by the mayor and aldermen of Bos« ton for the purpose of widening a street, the lease is not thereby extinguished j not is the lessee discharged from his liability to pay the reserved rent during the residua of the term. But the lessor and lessee are each entitled to recover compensation for the damage so sustained by them respectively.</p> <p>Where land is taken by the mayor and aldermen of Boston, for the purpose of widening a street, it is to be estimated at its value at the time of the taking, in the assessment of the damages.</p> <p>Where a jury empannelled in the Court of Common Pleas to assess the damages sustained by the owner of such land, under St. 1821, c. 109, § 8, by which the jurisdiction of the Court of Sessions in the county of Suffolk, in such case, is transferred to that court, have viewed the land, the jurors may exercise their own judgment and knowledge of like subjects, in estimating the damages , but it seemsa that if a juror has knowledge of any fact bearing upon the case, he must disclose and testify to it, in court.</p> <p>Under St. 1820, c. 79, § 5, a bill of exceptions lies to the instructions and rulings of the Court of Common Pleas upon such trial.</p>

<p>In an action against the maker of a promissory note given in consideration of the assignment of a mortgage, which mortgage was duly recorded, the defendant cannot give in evidence the fact that the mortgage was fraudulent and therefore void aa against creditors and subsequent purchasers, since if he was a bond fide assignee without notice of die fraud, his title under the assignment is valid, and if he knew of the fraud, then he must be considered as having waived any objection on account of the defect in the assignor’s title.</p> <p>A promissory note given on condition that the payee would assign Co the maker a mortgage of land, is admissible in evidence under a count for money had and received, the condition having been performed.</p> <p>Where all the counts in a declaration are for the same cause of action, but some of them are defective, and a general verdict is rendered for the plaintiff, the verdict may be applied to one of the good counts.</p> <p>In an action on a promissory note payable at a time and place certain, it is not necessary for the plaintiff to aver and prove a presentment at such time and place; and it is incumbent on the defendant to show, by way of defence, that he was ready to pay at such time and place.</p>

<p>This was assumpsit for one half of the rents of certain real estate in Elliot street in Boston, of which estate the plaintiff claimed to be a tenant in common with the defendant. The declaration contained the money counts and a count on a promise to render an account.</p> <p>The defendant pleaded four several pleas.</p> <p>In the third he pleaded the general issue, as to the rents received after January 28, 1826, which was joined; and as to the residue of the rents, alleged by the plaintiff to have been received prior to January 28, 1826, he pleaded that on February 11, 1817, Louis Champrozay and Nancy his wife, in her right and also as the guardian of the plaintiff, she being also the mother of the plaintiff, for the consideration of $600, by their deed of warranty of that date, conveyed the premises to the defendant in fee, under which deed the defendant entered into possession ; that from the time of such entry until on or about September 20, 1825, he continued in possession, receiving the rents to his own use, as of his own proper estate ; that on September 20, 1825, the plaintiff, who was then a minor, by her then guardian, Edward G. Loring Esq. commenced an action in the Court of Common Pleas, against the defendant, wherein she demanded possession of the premises, declaring upon her own seisin and a disseisin by the defendant; that issue was joined upon such seism ; that the action was brought by appeal into this Court, and was, on January 28, 1826, discontinued, and judgment rendered that the defendant should recover his costs.</p> <p>In the fourth plea, the defendant averred the same matters specially pleaded in the third, and alleged further, that from September 20, 1825, he still continued in the actual possession and enjoyment of the premises ; and that on September 17, 1830, the plaintiff, being then of full age, by her deed of quitclaim, released all her right and title in the premises to Bryant Newcomb.</p> <p>To the third and fourth pleas, the plaintiff demurred for the , following causes, among others :</p> <p>1. That they amount, each, to the general issue, and tend to unnecessary prolixity of pleading.</p> <p>2. That they put in issue matters of fact not alleged, nor necessary to be alleged, and are argumentative and otherwise evasive.</p> <p>3. That they do not allege that Nancy Champrozay was guardian of the real and personal estate of the plaintiff, not in what way she was constituted guardian.</p> <p>4. That they do not.allege, that she, as guardian, was duly empowered to sell the estate of the plaintiff, or made the conveyance by virtue of a license duly granted.</p> <p>5. That they do not allege, that Louis Champrozay and his wife, in her right and as guardian, were seised of and entitled to such estate, so as to be able to convey to the defendant.</p> <p>6. That the third plea, as to the rents alleged to have accrued after January 28, 1826, does not confess and avoid, nor traverse and deny, the making of the promises to such rents relating in the declaration mentioned.</p>

<p>This was assumpsit on a promissory note for trie sum of $300, dated November 11, 1828, signed by the defendant, payable to James Stowers or order, on demand, and indorsed by him to the plaintiff, without recourse ; and on an account annexed to the writ.</p> <p>The defendant filed in set-off an account in favor of the defendant against James Stowers, the payee, amounting to the sum of $2076-21.</p> <p>At the trial, before Wilde J., the defendant offered to prove that the note in suit was indorsed to the plaintiff long after it became due, and that the items in the account filed in set-off were of a date previous to such indorsement, or at least before notice thereof was given to the defendant j and for the purpose of proving the account in set-off, he also offered in evidence a judgment recovered in the Court of Con.mon Pleas, in an action commenced against the defendant, on the same day as the presént action, by James Stowers, in which action the same account was filed in set-off, and judgment rendered thereon in favor of the defendant foi $307*93, damages, and $82*28, costs.</p> <p>To this evidence the plaintiff objected, and the objection was sustained by the judge, upon the ground, that' the account filed in set-off in this action had passed into a judgment, antf was merged therein. The defendant excepted to this ruling</p> <p>The jury returned a verdict for the plaintiff.</p>

<p>A factor sold goods of a consignor and took therefor the purchaser’s negotiable note payable to the factor’s own order, the purchaser knowing that the goods belonged to the consignor. The purchaser became insolvent and assigned his property in trust to pay those creditors who should become parties to the indenture of assigr#ment; which purported to release all their demands. A schedule of debts annexed to the indenture specified, as due to the factor, the note above mentioned and a demand for money lent. The factor executed the indenture, and subsequently indorsed the note to the consignor. In an action by the consignor as indorsee of the note, against the maker, it was held, that paroi evidence was inadmissible to show that by the execution of the indenture it was not intended to release the note; that if the factor acted without authority, yet the consignor, by his mode of declaring, affirmed the note, which must consequently operate as a payment and discharge of the original consideration ; and that the note was released by the factor’s executing the indenture.</p>

This was an information founded upon St. 1817, c. 191, § 2, to recover certain prize money alleged to have been received, in May 1832, to the use of the commonwealth. The statute provides, that all sums of money drawn or received by virtue of tickets in lotteries established by any authority other than that of this commonwealth, shall be forfeited, and may be recovered to the use of the commonwealth by indictment, in any court of competent jurisdiction. Howes was defaulted.

<p>The proceedings, pursuant to statute, upon an information filed for the purpose o« causing a convict in the State prison to be sentenced to additional punishment bj reason of his being imprisoned upon a second or third conviction, are according to tile course of the common law, and consequently the remedy to reverse a judgment rendered upon such an information, is by writ of error and not by certiorari.</p> <p>In criminal cases, error lies to reverse the judgment of an inferior court against the defendant, notwithstanding he had a right of appeal.</p>

<p>A promissory note in the following words was signed by the defendant: " For value received I promise to pay to Quincy Railway Company ” (who were the plaintiffs) "or order, one thousand and thirty dollars in six months.” The note was then indorsed by E. P., and delivered to the treasurer of the plaintiffs, who without the knowledge or consent of the defendant, inserted the words “ the order of E. P.” above the words “Quincy Railway Company, or order,” but without erasing the latter words. It was held, that, in the absence of fraud, this was not an alteration affecting the validity of the note.</p>

<p>Where a petition for a license to set up a ferry was presented to the mayor and aider-men of Boston, as the successors of the Court of Sessions, and upon a hearing of the parties interested, the petition was granted, it was held, that these proceedings were of a judicial nature, and therefore might be removed to this Court by certiorari*</p> <p>But wksre, in a petition for a certiorari, such ferry was claimed by the proprietors of an ancient ferry as appurtenant thereto, it was held, that it was not competent for the Court, under this summary process, to try the conflicting titles of the parties, to such franchise.</p> <p>The Court of Sessions, previously to its abolition, was authorized to establish ferries over navigable rivers and arms of the sea.</p> <p>Under the St. 1S2I, c. 109, § 11, abolishing the Court of Sessions in the county of Suffolk, and transferring its authority, with certain exceptions, to the mayor and aldermen of Boston, the power of licensing ferries within the territorial limits of Boston, was vested in the mayor and aldermen, it not being a power in the exercise of which a trial by jury can be required, and so not within the exceptions.</p> <p>If a ferry claimed by the city of Boston as owners, be leased by the city, through the agency of the mayor and aldermen, with covenants for the exclusive enjoyment of such franchise, such covenants will not restrain the mayor and aldermen from exercising the powers vested in them by statute, to license another ferry over the same waters, if it be required by the public convenience and necessity j but if the city be the owner of an exclusive franchise in the ferry, the lessees would hold it notwithstanding any license to others.</p> <p>Where a petition presented to the mayor and aldermen of Boston, for a license to set up a ferry, was referred to a committee, and a report was made in favor of licensing the petitioners, and subsequently, a hearing of the persons interested was had before the whole board, and the petition was granted, it was held, that it was immaterial whether the report was agreed to by the committee or not.</p> <p>Upon a petition for a writ of certiorari to quash the proceedings of the mayor and aldermen in licensing a ferry, it was held, that the Court would not review the decision of the mayor and aldermen upon the question of public convenience and necessity, the regularity of their proceedings only being open to examination under such process.</p> <p>On a petition for a certiorari to quash the proceedings of the mayor and aldermen of Boston in licensing a ferry <c between Noddle’s Island and other parts of the city of Boston,” it was held, that the license was not void for its generality and uncertainty, in not defining more particularly the termini of the ferry, and so, that the proceedings could not be set aside on this ground, on certiorari.</p> <p>Jt seems, that a right of ferry may exist separately from the ownership of the soil at the termini of the ferry.</p>

<p>The distinction between a woman being pregnant, and being quick with child, is applicable, mainly if not exclusively, to criminal cases, and does not apply to cases of descents, devises, and other gifts.</p> <p>In general, a child is to be considered as in being from the time of its conception, where it will be for the benefit of such child to be so considered.</p> <p>The time of conception of a child is presumed to be at a period nine months previous to its birth, and where there is no evidence to rebut this presumption, it is conclusive.</p> <p>Where a testator bequeathed the residue of his personal estate to such of his grandchildren as should be living at his decease, in equal portions, it was held, that a grandchild born within nine months after the'testator’s death, was entitled to a share of such residue.</p>

Debt upon a bond. The condition of the bond recited, that the plaintiff, on January 22, 1827, by a deed of quitclaim, granted and released to the defendant all his interest in certain real estate in Boston; and that the consideration of the deed was the indemnification of the defendant against the payment of a promissory note of the same date, made by the plaintiff for the sum of $ 1000, payable to the defendant or his order in one year from May 15, 1827, and indorsed hv the…

<p>Under St, 1809, c, 120, § 2, [Revised Stat. c, 28, § 70,] regulating the appointment and duties of the inspector general of pickled fish, an action lies in the first instance against him, for the default of one of his deputies.</p> <p>The St, 1809, c, 120, § 2, provides, that the inspector general shall be answerable for the official conduct of his deputies, and that he shall take bonds from them to himself and successor in office in a sum not exceeding $3000. [Altered by Revised Stat. c. 28, § 70.] It was held, that the liability of the inspector general for the default of one of his deputies, was not limited to the amount of the penalty prescribed by the statute as the extent of the bond of such deputy.</p> <p>In an action against the inspector general for damages sustained through the default of a deputy in branding as Cargo No. 1, a quantity of fish which the plaintiff purchased and exported to Baltimore, but which, as the plaintiff alleged, were not well'struck with salt, it was held, that evidence, that the fish had been examined and passed inspection at Baltimore, was not conclusive against the claim of the plaintiff.</p> <p>In such action it was hrtd, that the difference between the actual value of the fish in question at Baltimore, and the value of fish of the quality and in the condition indicated by the brand, at the same time and place, was the measure of the damages recoverable by the plaintiff, the fish having been exported within a reasonable time after the inspection, having been exposed to no extraordinary cause of damage, and having been exported to no remote or unusual place for the exportation of the like kind of fish.</p> <p>The inspector general is liable for damages occasioned by a want of reasonable skill, care, and fidelity on the part of his deputies, in the discharge of their duties; but he is not responsible for their mere errors of judgment.</p>

At the Municipal Court of the city of Boston, held on the first Monday of February 1833, an indictment was found, alleging that the defendant, on February 4, 1833, at Boston, “ did unlawfully offer for sale and did unlawfully sell ” to James Greely, one half of a lottery ticket in a lottery not authorized by the laws of the commonwealth, called the Connecticut lottery for the erection of a bridge at Enfield Falls, against the peace &c., and contrary to the form of the…

<p>Assumpsit against Cooper, Gould & Robbins, on seven promissory notes, dated in February, March and April, 1826, amounting in all to $4700, purporting to have been signed by the defendants under the firm of Cooper, Gould, & Robbins, payable to Robbins, and by him indorsed to the plaintiff. The notes were payable on different days subsequent to the 11th of May, 1826</p> <p>The defendants, Cooper and Gould, pleaded first, the general issue.</p> <p>Secondly, that at the Court of Common Pleas held in July 1826, the plaintiff sued the three defendants, declaring upon a promissory note dated May 11, 1826, for $4700, alleged to have, been made by the defendants under the firm of Cooper, Gould & Robbins, payable to the plaintiff on demand, with interest; also upon a count for $6000, money had and received ; also upon a count of insimul computassent for $4700; that Robbins was defaulted ; that Cooper and Gould pleaded that they never promised with Robbins, and that issue was joined thereon ; that upon the trial of this issue, in the Supreme Court, and to support the several counts in the declaration, the plaintiff alleged and proved that the note for 4700 dollars had been given by Robbins, in the name of Cooper, Gould & Robbins, as a substitute for, and in consideration of, and as security for, and payment for, the seven promissory notes declared upon in the present action ; that these seven notes were, by the plaintiff, given in evidence to the jury, to support the declaration and the issue joined, in the former suit; that Cooper and Gould denied that they made or knew of the seven notes, and denied that Robbins was authorized to make and issue them in the name of the copartnership, and denied that they were given for partnership transactions, and denied that Cooper and Gould received any part of the proceeds thereof, and alleged that Robbins made and indorsed these notes, for his individual and separate use and benefit and in fraud upon Cooper and Gould, and that the plaintiff knew these facts at the time when the notes were made and indorsed ; that these matters, and whether Cooper and Gould were bound to pay the seven notes, and whether they made the promises set forth in the first action, were put in issue at the trial, and the jury returned a verdict that Cooper and Gould never promised together with Robbins, as alleged by the plaintiff in his declaration ; that judgment was rendered on this verdict; and that this judgment has not been reversed or annulled but remains in full force ; wherefore Cooper and Gould prayed judgment whether the plaintiff ought to be admitted, contrary to the verdict and judgment above mentioned, to say that Cooper and Gould, together with Robbins, promised as alleged in the declaration in this action.</p> <p>The defendants, Cooper and Gould, pleaded thirdly, the same facts, and prayed judgment whether the plaintiff his action against them ought to have and maintain.</p> <p>The plaintiff demurred specially to the second and third pleas, and assigned for causes of demurrer, that it is not alleged in the pleas, nor does it appear, that the plaintiff impleaded the defendants, in the former suit, for not performing the identical promises set forth in the present suit, but the contrary appears by the pleas ; that it does not appear from the pleas, that issue was taken in the former suit, upon the point whether the defendants did make the several promises set forth in the present suit, or any of them, nor that the jury passed upon this point, nor that the jury found that the defendants did not make the promises now declared on, but the contrary appears from the pleas ; and that it appears from the pleas, that at the time of commencing the former suit, these promises had not been broken, and the cause of action now set forth had not accrued ; and that Cooper and Gould have, in their pleas, alleged as matter in bar and of estoppel, matters which are contrary to the record of the former suit, and mat ters in pais, which cannot be pleaded in bar or as an estoppel, and have not alleged that any of the matters pleaded appear by any record, and have not made proferí of any record ; that it is not alleged in the pleas, and does not appear, that the plaintiff accepted the note for 4700 dollars as payment or in lieu of, or in consideration of, or as a substitute,for, the other seven notes, nor is it alleged, nor does it appear, that the jury found that the note for 4700 dollars was given or accepted for either of those purposes ; and that Cooper and Gould allege by way of bar and estoppel, matters of argument, inference, and evidence, which do not appear from any record of any proceeding or judgment in the former suit.</p>

<p>Although it is the province of the jury to decide ultimately on questions of fact, yet it is within the province, and is sometimes the duty, of the court, to set aside a verdict as being contrary to the weight of evidence.</p> <p>On the first trial of a cause, there may be reason to believe that the jury have fallen into some error in regard to the law, or the nature and force of the evidence, which they themselves would correct upon a careful revision ; or the parties and counsel may have set forth their respective grounds less definitely and clearly, and the court may have instructed the jury less fully and accurately, than after the cause has been revised by the whole Court and the grounds of law and the rules respecting the admission and application of the evidence deliberately considered, in reference to the particular case ; and under these circumstances it may sometimes be expedient to grant a second, and even a third trial.</p> <p>But after the Court have aided the jury by full and precise instructions as to the principles of law applicable to the case, the burden of proof, the presumptions to be drawn from particular facts and circumstances, and the nature and application of the rules of evidence, and the question is one of fact about which different minds may honestly differ, it is the province of the jury ultimately and definitively to decide.</p> <p>There are, however, cases where by the ordinary forms of proceeding the issue must go to the jury, but where it depends upon a few faóts which are plainly proved and stand uncontradicted, and where the rules of law applicable to such facts are plain and well settled, and where therefore the verdict must obviously be found one way, or be manifestly wrong ; and in such a case, if the jury persist in finding a wrong verdict, it would be the duty of the Court to set it aside as often as it should be returned.</p>

This was an action on the case for damage sustained by the plaintiff, through the negligence of the defendant’s workmen in digging and making a drain, whereby tide water was let into the plaintiff’s cellar, and his merchandise stored therein was wet and damaged.

This was assumpsit on the following contract. “ Halifax, September 7, 1826.

This was assumpsit on a policy of insurance, dated March 13, 1832, and underwritten by the defendants, for the sum of $7000, on the brig Elizabeth and cargo, at and from Boston to Smyrna and at and from thence back to Boston, at a premium of two and a half per cent.

Indictment for a libel. The indictment set forth, that, on May 11, 1833, Benjamin Whitman, Esquire, was one of the justices of the Police Court and Justices Court for the County of Suffolk, and acting as senior justice of the Police Court; that the defendant, on the same day, published, in a newspaper called the New England Galaxy, “ of and concerning said Benjamin Whitman and of and concerning his official conduct in said office of justice of the Police Court, and of and…

<p>This was an indictment for a libel published in a paper called the New England Galaxy.</p> <p>The alleged libel was headed with the words, “ Look out for thieves,” and charged one Harrison and one Allen with having boasted, that they had won certain sums of money by gaming, on particular occasions. It also charged them with having drugged a horse previously to a race in which he was to run, by means of which they won a large sum of money, which they had betted upon the race.</p> <p>At the trial, before Wilde J., the defendant introduced evidence for the purpose of proving the truth of the first charge.</p> <p>The defendant also offered to prove, that the charges contained in the alleged libel were communicated to him by so respectable and credible a person, and under such circumstances, as to leave no reasonable doubt in his mind, of their truth. But this evidence, so far as it related to the charge of cheating in the horse-race and drugging the horse, was rejected by the judge, there being no evidence whatever of the truth of this charge.</p> <p>The defendant then offered evidence to prove, that Allen and Harrison were, in their general characters, rogues and cheats; but this evidence also was rejected as inadmissible.</p> <p>The defendant contended, that inasmuch as all the defimtions of libel make malice a necessary ingredient, the jury could not, consistently with law, convict the defendant, unless they were convinced that there was malice in the publication of the alleged libel; and that error honestly believed, and published from good motives and for justifiable ends, could no more be called guilt, than truth published from malicious motives and for unjustifiable ends, could be called innocent.</p> <p>But the jury were instructed, that the publication of a false report, tending to defame the character of an individual and to expose him to hatred and contempt, might be presumed to be malicious ; that proof, that the publisher had heard of the truth of the charge contained in such publication, and that he believed in its truth, without knowing it to be true, would not amount to a legal defence or justification, and was incompetent evidence to rebut the presumption of malice ; and that the defendant, in order to justify himself under St. 1826, c. 107, must prove the truth of the charges, and that they were published with good motives and for justifiable ends.</p> <p>The jury returned a verdict of guilty.</p> <p>To these rulings and instructions the defendant excepted.</p>

<p>Writ of entry. The declaration originally consisted of one count which averred, that the demandants who were minors, sued by Abel Moore, as their guardian ; that they demanded two undivided sixth parts of a messuage in Boston ; that Benjamin Slater, whose heirs they were, was seised thereof within twenty years; and that the tenant had disseised the demand-ants.</p> <p>At the November term of this Court in 1830, the demand-ants filed another count as a substitute for the original count. The substituted count was allowed by Shaio C. J., who was then presiding, although it was objected to by the tenant.</p> <p>In the substituted count, the demandants aver that they sue by Moore, as their prochein ami, and demand the whole of. the same messuage, alleging that they were seised thereof, and that the tenant within thirty years disseised them.</p> <p>The tenant pleaded that he did not disseise the demandants ; and issue was joined thereon.</p> <p>At the trial it appeared, that on September 20, 1780, one Stoddard conveyed the demanded premises to John Henley ; that John Henley, before purchasing the same, on November 20, 1779, made his will, by which he devised all his estate, real and personal, to his wife Mary Henley ; that the will was proved in 1780 ; that Mary Henley, on July 17, 1782, conveyed the easterly half of the demanded premises, described by metes and bounds, to Benjamin Slater, the husband of her daughter Mary S. Slater, and the grandfather of the demand-ants ; that on June 7, 1797, after the death of Mary Henley, Josiah Chamberlain, the brother of Mary S. Slater, they being the only children of Mary Henley, released all his interest in the demanded premises to Mary S. Slater; that on October 4, 1827, Mary S. Slater conveyed the whole of the demanded premises to the tenant, who entered thereon, and has ever since occupied them.</p> <p>It further appeared, that Benjamin Slater, the grandfather of the demandants, was an alien and never naturalized ; that he followed the seas ; and that a letter vras received from him in 1800 ; but it did not appear that he was ever heard from afterwards.</p> <p>It also appeared, that Benjamin Slater, the grandfather, had three children, to wit: “ Benjamin, the father of the demandants, Sarah, the wife of William Livingston, and Mary, the wife of John Osgood ; and that Osgood and his wife, on January 9, 1815, conveyed all their interest in the premises to the father of the demandants, who died in 1824. Evidence was offered on the part of the demandants to prove a possession of the demanded premises by their grandfáther and father, and on the part of the tenant, to show an adverse possession by himself and Mary S. Slater, under whom he claimed.</p> <p>The demandants introduced evidence tending to show an entry on their behalf, by their guardian, Moore, before this action was commenced.</p> <p>The jury were instructed, that the demandants might make title through the possession of their grandfather, although he was an alien and never naturalized. The tenant excepted to this instruction.</p> <p>The jury returned a verdict in favor of the demandants, for two undivided third parts of the half of the demanded premises, which was conveyed by Mary Henley to Benjamin Slater, the grandfather of the demandants.</p> <p>The cause was argued in writing.</p>

<p>Action upon the case. Upon an agreed statement oi facts it appeared, that the action was brought upon a contract, dated March 15, 1825, entered into between the plaintiff and William Blake, of the one part, and the defendants, who were then a corporation under the name of the Boston and Braintree Copper and Brass Manufactory, of the other part.</p> <p>By this contract it was agreed, that the plaintiff and Blake should, during the time for which the corporation was established, well and faithfully serve the corporation in the manufacturing of copper and brass articles and wares ; that they should not engage in any other business, but devote their whole time, talents and skill to the carrying on die manufactoring business and the promotion of the interest of the corporation ; that the corporation should pay to each A" them an annual salary of $1500, commencing the year on the 12th day of March, so long as they should continue to perform their part of the agreement; and that in case of the death ot the refusal to perform the agreement, by the plaintiff or Blalce, the corporation should be discharged from all obligation, except to the survivor or party continuing to perform the agreement.</p> <p>By the St. 1824, c. 61, passed February 8, 1825, incorporating the Boston and Braintree Copper and Brass Manufactory, for the purpose of manufacturing copper and brass, it was provided that the corporation should “have all the powers and privileges, and also be subject to all the duties and requirements, prescribed and contained in” St, 1808, c. 65, which defines the general powers and duties of manufacturing corporations, and authorizes the legislature to repeal any act establishing any such corporation, as shall be deemed expedient. By the St. 1825, c. 124, the corporation was allowed to take the name of the Boston Copper'Company.</p> <p>The plaintiff entered the service of the corporation, of which he was also a member, on March 12, 1825, and continued in their employment until about December 31, 1829, when the corporation ceased to employ him, and gave him notice thereof, the plaintiff being then and always, as he alleges, ready to continue in their employment, of which he also gave them notice. The salary of the plaintiff was paid up to September 12, 1829 ; and the amount due to him, supposing the agreement to have terminated on December 31. 1829, was tendered to him on the last mentioned day.</p> <p>It appeared that from the commencement, the enterprise was unsuccessful, and that after four or five years had elapsed, the corporation had made no dividend, and had lost a considerable part of their capital ; that the stockholders then took measures to close the concerns of the corporation ; that for this purpose at a meeting of the corporation on December 31, 1829, a vote was passed, appointing a committee to settle and adjust all concerns of the company, and to pay all the debts, sell all the properly, both real and personal, collect all the outstanding demands, and divide the surplus, after paying and providing satisfactorily for all debts, among the stockholders, according to their respective interests ; and that the committee wrote a letter, dated January 6, 1830, to the executive department of the government, stating therein, that it had been voted to dissolve the company, and giving notice that the charter is surrendered to the commonwealth, with all the franchises and privileges belonging to the same, except so far as may be necessary in closing their concerns, agreeable to St. 1819, c. 43.</p> <p>It further appeared, that the third by-law adopted by the corporation provides, that the “officers shall hold their offices one year, and until others are elected in their room ; ” and that officers were duly elected in the spring of 1829. All the members of the corporation are living.</p> <p>The defendants contend, that so far as these parties are concerned, the corporation was dissolved on December 31, 1829, and that the contract was thereby terminated, if not before that time ; and that they were under no obligation to employ the plaintiff, even if they were satisfied with his services.</p> <p>The plaintiff contends, that by virtue of the agreement, he is entitled to recover damages for the time subsequent to December 31, 1829, as his salary, or by reason of the injury sustained by him in consequence of the alléged breach of the agreement by the defendants, or as his salary for a part of the time, and as damages for being deprived of his salary, subsequently.</p> <p>If upon these facts the Court should be of opinion, that the plaintiff was not entitled to recover any thing, he was to become nonsuit; otherwise, the case was to be submitted to a jury.</p> <p>The case was argued in writing.</p>

<p>This was a petition to the Court of Common Pleas, for partition. The petition represents, that Codman and his wife are tenants in fee, in her right, of eight undivided ninth parts of a lot of land in Boston, with the buildings thereon, and that Dwight F. Tinkham, a minor, is tenant in fee of the other undivided ninth part; and that the petitioners are desirous of holding their interest in the land in severalty, but are of opinion, that it cannot be divided without greatly injuring its value. Wherefore they pray, that, unless it shal appear, that such partition can be made without such injury, the whole of the land may be assigned to them or to Tinlc ham, as shall be most for the benefit of all concerned, the party to whom the land may be assigned paying to the other party such sum of money as the interest of such other party may be found to be worth. The respondent protesting, that the petitioners had no rigb oy law to have the whole of the premises set off to either party, declared that he had no cause to show why partition of the premises should not be made. Whereupon judgment was rendered, that partition be made., and three commissioners were appointed with power to make partition. The commissioners reported, that they were satisfied, that a division of the land could not be made without greatly diminishing the value of the whole ; that, having ascertained that the respondent was not of any known or sufficient ability to pay the value of the petitioner’s interest, if the whole of the land should be set off to him, they had determined to set off to the petitioners the whole of the land in severalty, valuing it at $7580, and to allow to the respondent $842-22, being one ninth of the estimated value of the lot, to be paid to him by the petitioners The court ordered, that the report of the commissioners be rejected, and that the petitioners take nothing by their petition, it being considered that the disposition made of the land by the commissioners was not authorized by law. The petitioners thereupon appealed to this Court.</p> <p>The case was argued in writing, by Parsons for the petitioners, and English for the respondent. On the part of the petitioners were cited Thayer v. Thayer, 7 Pick. 209, and Arms v. Lyman, 5 Pick. 210.</p>

<p>This was assumpsit by John C. Page and Kilby Page, the executors of the will of John Page, upon a promissory note, for $400, payable by the defendant to the testator.</p> <p>At the trial, before Shaw, C. J., the note was not pro-, duced; but the plaintiffs offered evidence to prove the existence, contents, and loss, of the note.</p> <p>An affidavit of both of the plaintiffs, dated February 14, 1832, was filed in court, in which they; declared that they, as executors of the will of the testator, had never had the note in their possession.</p> <p>An affidavit of Kilby Page, dated November 22, 1832, was read, by which it appeared, that he had been the principal acting executor, and that the other plaintiff and executor was out of the country, and had had very little to do with the settlement of the estate, except to sign his name to papers ; that, some time after the will was proved, Kilby Page sent his boy for a small trunk belonging to the testator, which he had understood was in the hands of the defendant ; that the boy returned with the trunk, but without the key, which the defendant said was not in his possession ; that the witness opened the trunk and looked over the papers in it carefully, but whether this was in the presence of John C. Page, he did not recollect ; that there was no note for $400 therein, signed by the defendant; and that although the witness had made diligent search among the papers of the deceased, no such note had ever come to his knowledge. This was ruled to be sufficient presumptive evidence of the loss of the note, to let in evidence of its contents.</p> <p>The plaintiffs then offered evidence tending to show, that after the death of the testator, the defendant admitted that he had the note in his possession, stated the date and amount, and acknowledged that it was then due and that he was ready to pay it, whenever there was an executor qualified and authorized to receive payment.</p> <p>These points were controverted by the defendant, and the evidence was left to the jury to decide upon the facts of the execution and the terms of the note.</p> <p>One ground of the defence was that the note had been paid, but no evidence was offered on this point, the defendant relying upon the presumption arising from the non-production of the note</p> <p>Tn the progress of -.he trial, it appeared that John Wade junior, the grandson of the testator, was the residuary legatee and devisee under the will ; that he had lately become of age, and that this action was prosecuted by the plaintiffs for his benefit and at his request and expense ; and that he had indemnified them. Whereupon the defendant offered Kilby Page as a witness, and proposed to release him; but he was objected to as a party to the suit, and it was ruled that he was inadmissible. No release was actually tendered.</p> <p>The defendant then offered in evidence a petition of John Wade junior, verified by his oath, which was presented to the judge of probate under St. 1783, c. 32, §11, together with the interrogatories proposed to the defendant, in pursuance, of such petition, and his answers thereto. The petition represented that the petitioner had reason to believe that the defendant had concealed, embezzled and conveyed away a promissory note for $400 signed by the defendant and belonging to the testator, and prayed that the defendant might be cited before the court of probate, and be examined upon oath for the discovery of the same. It appeared, that the defendant was thereupon cited before the probate court for the purpose of being examined on oath in relation to such note, and that he appeared and answered.</p> <p>The petition with the interrogatories and answers were objected to as incompetent, and were rejected. It was then proposed by the defendant to read in evidence the petition, but it was held not to be competent evidence.</p> <p>The jury were instructed, that ordinarily the non-productian of a note by a party claiming under it, raised a presumption of payment ; and therefore that to entitle the plaintiffs to recover, it was not sufficient to prove merely the execution and contents of the note, without some evidence of the loss of it ; that here the affidavit of Kilby Page, stating that he had searched among the papers of the testator, and had not been able to find such a note, was such evidence of its loss, as to let in secondary proof of its existence and contents ; and that if the jury should be of opinion, upon the whole evidence, that it was not paid to the testator, in his lifetime, but remained in the custody of the defendant at the time of the testator’s decease, this would be sufficient to rebut the presumption of payment arising from the non-production of the note by the plaintiffs.</p> <p>The jury returned a verdict for the plaintiffs. ‘</p> <p>The defendant moved for a new trial for the following reasons :</p> <p>1. Because of the rejection of Kilby Page as a witness, although the defendant offered to release him, after it was proved that John'Wade junior was the party in interest, and had indemnified the nominal plaintiffs.</p> <p>2. Because the petition of John Wade junior to the judge of probate was ruled to be inadmissible in evidence.</p> <p>3. Because the judge who tried the action, permitted the affidavit of one of the plaintiffs to be read to him, as a ground for admitting secondary evidence to the jury, of the existence and non-payment of the note in question, and in his charge commented on such affidavit, which had not been read to them in evidence, and stated, that it furnished sufficient evidence to rebut the presumption of payment arising from the non-production of the note by the plaintiffs, without which there was no satisfactory evidence tending to prove that the note had not been paid to them</p> <p>If the Court should be of opinion that any one of these directions and decisions was erroneous, the verdict was to be set aside and a new trial granted ; otherwise judgment was to he rendered on the verdict.</p>

<p>By an agreed statement of facts it appeared, that by the will of William Gray, deceased, the following provision was made for his daughter, Lucia, now the wife of Samuel Swett: “ I also give to my said daughter the interest of fifty thousand dollars from the time of my decease during her natural life ; and at her decease the principal to be equally divided among her children, (naming them,) or the survivors of them at her .decease.”</p> <p>It also appeared, that the testator appointed his five sons executors of his will; that the executors, who were also the residuary legatees, gave bonds for the payment of debts and legacies ; that they returned no inventory and rendered no account at the probate office; that after the decease of the testator, a sum equal to the legal interest of $50,000, was paid to Mr. Swett, annually, by the executors, until December 12, 1827, when the sum of $50,000 was deposited by them in the office of the Massachusetts Hospital L'fe Insur- . anee Company, subject to the terms of a contract made with the company of that date. By this contract it was provided, that the company should annually, during the life of Lucia Swett, cause to be paid to her the same rate of interest on the sum deposited, as the company should receive upon their capital stock and the other property in their possession ; that m case she should be living at the expiration of five years from the date of the instrument, a majority of the executors or the survivor of them, should have the right to withdraw the principal sum so deposited, upon giving the company notice of such intention, at least sixty days before that time, and the company should also have the right to pay off the same, upon giving the like notice ; that if no such notice should be given, the deposit should remain during another term of five years, if she should so long live ; that this right of withdrawing or paying off the deposit should be renewed at intervals of five years so long as the trust should continue ; and that the company should in sixty days after her decease, assign and pay the amount of the principal sum and all interest due thereon, in the way and manner specified in such contract, to the executors, &c., in trust, to be distributed according to the provisions of the will.</p> <p>It also appeared, that the sum deposited has ever since stood on the books of the company, and that the income has been regularly paid to the husband of Lucia Swett, she giving her receipt therefor; that the sums so paid were received, pro tanto, as a part of the sum due from the executors under the directions of the will; and that this investment was the voluntary act of the executors, without any consideration or control on her part or that of her husband. It further appeared, that the executors were jointly assessed in the sum of $544-50 for the taxes accruing upon the sum so deposited, during the years 1830, 1831 and 1832, by the assessors of 'he city of Boston ; that a warrant therefor was issued against the executors, who had refused to pay these taxes ; that thereupon the plaintiff, having been arrested by virtue of the warrant, paid the sum of $184-50 and costs, in order to free himself from arrest; and that this action was brought to recover the sum so paid.</p> <p>By the tax acts by virtue of which these taxes were assessed, it was provided, that a tax should be assessed upon all persons according to the proportion of the amount of their respective personal estates, “ including all moneys at interest more than they pay interest for,” and ct all other debts due to them more than they are indebted for.”</p> <p>If upon these facts the Court should be of opinion, that the plaintiff could recover against the city, or any officer thereof, the defendants were to be defaulted, and judgment was to be rendered for the amount paid, with interest and costs ; otherwise a nonsuit was to be entered.</p>

The parties stated the following facts. At the trial, before Putnam J., it was proved, that Charles Tracy, the intestate, died on November 16, 1831 ; that on November 28, 1831, administration was granted to the defendant, on his estate ; that on May 8, 1832, the estate was represented to be insolvent ; that the plaintiff presented to the commissioners of insolvency his claim founded on three promissory notes, to wit, an attested note made by Tracy for the sum of $5000, dated…

<p>This was an appeal from the decree of the judge of probate, passed on March II, 1833, disallowing a certain instrument offered for probate as the last will and testament ot Charles Thorndike. The appellant was the guardian of three of the testator’s children; the appellee was the testator’s widow.</p> <p>One of the reasons of appeal was, because the instrument purports, as the last will and testament of Charles Thorndike, to dispose of both his real and personal estate, and was duly signed, sealed and published as and for his last will and testament, in the presence of three credible witnesses, who in his presence &c. subscribed their names thereto as witnesses, and these witnesses testified thereto before the judge, yet the judge refused to approve and allow the instrument as and for the last will and testament of Charles Thorndike, because o( a certain writing purporting to be signed by Charles Thorn-dike, but not signed by him in the presence of three or more witnesses, as the statute requires, which the judge considered and decreed to be a revocation of the instrument offered for probate.</p> <p>In the opinion of the Court, drawn up by the chief justice, the facts upon which the decision was founded were stated as follows : —</p>

<p>Assumpsit on an account annexed to the writ. Upon a case stated it appeared, that the claims of the plaintiff, set forth in his bill of particulars, were for supplies and advances furnished to seamen, and for brokerage accruing on their shipment by him, under a contract entered into between him and the defendant in January 1830, whereby the defendant, who was the keeper of an office for procuring crews for vessels, in consideration of the plaintiff’s engagement to make such advances and supplies as might be necessary in that business, promised to pay the plaintiff $2-50 for each man shipped by him for a whaling voyage, if such advances and supplies were made by the plaintiff, or $1-67, in case no such advances were made by him, and the further sum of 33J cents for each man shipped by him for the merchant service, and also to -epay him for such advances and supplies.</p> <p>The defendant set up as a defence a former judgment rendered in a suit between the parties, at the term of the Court 1 neld in this county in November 1832, in which suit the counts were for, 1. goods sold and delivered, $1500;—■ 2. labor done and performed, $1500 ; — 3. money lent, paid, &c., $1500 ; — 4. money had and received, $1500; — 5. interest on money forborne, $1500; — and 6. on insimul computassent, $1500. In that suit the plaintiff filed a bill of particulars, claiming $1457, for advances made to seamen, under the contract above mentioned, for the month of June 1830, and a part of those made for February, March and April, 1831, and the brokerage thereon.</p> <p>At March term 1832 that action was referred to a coun seller of this Court, to be determined upon the same principles, as to law and evidence, as if tried in court.</p> <p>At the hearing before the referee, the defendant produced as evidence of payment of the amount claimed in the former suit, divers receipts of the plaintiff to a large amount.</p> <p>It was agreed as a fact, (if the rules of law would permit the plaintiff to prove the same, and not otherwise,) that the plaintiff could prove, that at the hearing before the referee the bill of particulars was stated by the plaintiff as the subject "matter of controversy, and as 'comprising all the demands which he sought to recover in that suit.</p> <p>The plaintiff offered before the referee, proof of other large claims against the defendant for advances and brokerage under the contract between them, being the same claims which were set forth in schedules marked A, B, C, and D, part of the bill of particulars in the present suit, and which were due • and payable at the time of the commencement of the former suit. The defendant objected to the introduction of evidence in relation to those claims, as not being included in the bill of particulars.</p> <p>The plaintiff also, at the hearing before the referee, proved that about the month of August 1831, the plaintiff and the defendant were engaged together several hours in examining' and attempting to adjust the accounts of the plaintiff set forth in schedules C and D in the present bill of particulars ; that those schedules, in their present state, were used by the par ties, and that after much discussion, the plaintiff agreed to deduct $20 from schedule C, and $15 from schedule D, and that thereupon the defendant said they were correct and he would pay them, and the parties separated.</p> <p>It was also agreed, (if the rules of law would permit the plaintiff to prove the same, and not otherwise,) that the plaintiff could prove that the claims set forth in the present bill of particulars, in schedules A, B, C, and D, were, at the hearing the referee, stated by the plaintiff to be put in evidence as affecting the application of the sums given in evidence as payment by the defendant.</p> <p>The referee proceeded to the determination, and made an award upon the claims contained in the former bill of particulars alone.</p> <p>If the former judgment was not by law a bar to any part of the plaintiff’s claim, the case was to be sent to an auditor.</p>

<p>in an action in this State, brought by a citizen of New York against one of two partners, on a partnership note dated and payable in New York, it appeared, that from the time when the note was made until the action was brought, the defendant was a citizen of Massachusetts, and his partner, a citizen of New York ; and that the partnership business was carried on in both States, and under the same firm. It was held, that the discharge of the defendant under the insolvent law of New York, of April 12, 1813, enacted before the making of the note, was not a bar to the action.</p> <p>B seems, that the result would be the same, if the defendant had been a dormant partner, and the partnership business had been carried on in New York only.</p> <p>The insolvent law of New York provides, that the debtor shall make application for the benefit of its provisions in the county of which he is an inhabitant, or within which he is imprisoned, and not elsewhere. It was held, in the same case, that the fact that the defendant was imprisoned in King’s County in New York at the time of his petition, afforded no presumption, that he was then a resident in that State.</p> <p>I; lie same case, it appeared that the plaintiff united with the defendant in his petition for the benefit of such insolvent law. It was held, that the discharge was not thereby rendered valid against the plaintiff.</p>

Writ of entry to recover an undivided eighth part of a tract of land in Great Barrington. At the trial, before Shaw C. J., it appeared that Nathaniel Hudson, the father of the demandant, died seised of the land described in the writ, and that the demandant took one undivided eighth part thereof by descent.

<p>The guardians of a minor, in a deed of conveyance, covenanted, in their capacity ol guardians, that the father of the minor died seised of the premises, and that they, m their capacity aforesaid, in right of the minor, were lawfully seised of the premises. It was held, that the guardians were liable personally on these covenants.</p> <p>The grantor in a deed conveyed tl the following described tract of land situate in Great Barrington, being all and the same land which B. D., deceased, lately owned in a hundred acre pitch of equalizing land, formerly laid out to C. B.’s right, supposed and considered to be bounded (describing the land particularly by metes and bounds) and containing in said described premises 22¿ acres of land.” It was held, that this was a grant of the land described by metes and bounds, and not merely of B. D.’s title.</p> <p>Where a tenant in common of land enters thereon and cuts timber, he is presumed to enter under his legal title, there being no evidence of any ouster of the co-tenants.</p> <p>Although in general, upon a breach of the covenant of seisin, the measure of damages is the purchase money with interest, yet if the covenantee has derived profits from the land for which, from lapse of time, he is no longer responsible, it seems that such profits should be deducted from the purchase money and interest.</p>

<p>This was an action of trespass originally brought against Miles Bartholomew, a deputy sheriff, for taking a horse. At September term 1833 of this Court, the action was continued to May term 1834. On January 9, 1834, Bartholomew died, insolvent; but his death was not entered on the record, as the Court was not then in session. The defendant Ives, as administrator of Bartholomew, appeared and claimed the right to come in and defend, by virtue of St. 1834, c. 2, which was passed on January 31, 1834. By this statute it was provided, “ that all actions of trespass and of trespass upon the case, which are now pending, or which may hereafter be commenced, for injury to personal property, whethe such injury be caused by misfeasance or non-feasance, shall be regarded as actions which survive to and against the executors and administrators of the parties causing and sustaining such injury, and may be proceeded in, in the same manner as is provided by St. 1822, c. 110, § 1, entitled “ an act for the regulating actions of replevin and trover.” The plaintiff moved to have his action dismissed without costs, and insisted that it stood unaffected by the statute, because the death of Bartholomew took place before the statute was passed.</p>

<p>This was an action on the case, as the defendant cuu tended, or of assumpsit, as was contended by Curtis and Lee, the plaintiffs. The defendant pleaded not guilty.</p> <p>At the trial, before Wilde J., the plaintiffs proved, that the defendant, in September, 1830, as deputy sheriff, attached, at the suit of W. and W. & C. Laflin, certain personal property of L. & G. Stedman ; that the plaintiffs, on application being made to them to receipt for the property, were reluctant to do so ; but that the defendant and W. Laflin both told the plaintiffs, that if they would sign such receipt, they (the defendant and W. Laflin) would take possession of the property attached and discharge them from their liability on the receipt, whenever the plaintiffs should become alarmed and dissatisfied, and should give them notice thereof; and that the plaintiffs thereupon, together with Henry Stedman, exe outed a writing, in which they acknowledge that they have received the property from Wakefield and promise to redeliver it to him in case execution shall issue against the defendants in the suit in which the attachment was made.</p> <p>W. Laflin testified, that he directed the defendant to take the receipt subject to such agreement, and that the defendant acted in pursuance of his instructions.</p> <p>The plaintiffs further proved, that Lee gave notice to W. Laflin, that they had become dissatisfied, and requested him to take possession of the property in pursuance of this agreement, and discharge them from their liability ; that W. Laflin accordingly directed the defendant to take possession of the property, and that the defendant agreed with Lee to do so, on the Thursday then next ; that the property, on that day, was in the possession of Henry Stedman, but the defendant did not take possession of it ; that on the succeeding Saturday, the Stedmans absconded, carrying off the property with them ; that the defendant afterwards brought an action against the plaintiffs on the receipt; that in that action the plaintiffs offered paroi evidence of these facts, but that it was held by the full Court, that the evidence was not admissible (Wake-field v. Stedman, 12 Pick. 562) ; and that the defendant recovered judgment in such action against the plaintiffs.</p> <p>The case was taken from the jury and reserved for the consideration of the whole Court. A nonsuit or default was to be entered, according to their opinion.</p>

Assumpsit against the defendant as an attorney at law, on an implied promise by him to do the business of the plaintiffs intrusted to him, with proper care, skill and fidelity, for a reasonable reward; and he is charged with negligence, care íessness and want of skill, whereby the plaintiffs lost a debt due to them.

<p>The «Sí. 1S04, c. 125, defining the powers and duties of turnpike corpc\ atía tjo provides that a certain toll shall be paid 66 for each coach., chariot, ph:i?^o C" other four-wheel spring carriage.” It was held, that the term coach m not controlled by the words, other four-wheel spring carriage, and that a stage-carriage, the body of which was suspended on thorough-braces attached to four braced iron jacks, is a coach, within the provision of the statute.</p>

<p>Charles H. Merritt, one of the supposed trustees, moved that he might be discharged, because at the time of the service of the writ he was a resident in Troy, in the State of New York, and he never had been a resident in Massachusetts.</p> <p>It was agreed that Merritt came into this State, and with other persons took an assignment of an insolvent debtor’s property, in trust for the payment of the debts due to himself and to other creditors, and that he was in this State in the execution of the trust, at the time when the writ was served upon him.</p>

This was a petition for a writ of certiorari to Charles W Hopkins, a justice of the peace, by whom the petitioner was fined, on August 4, 1833, for neglect of military duty.

<p>This was a petition to the county commissioners for a jury to estimate the damages sustained by the petitioners, in consequence of the laying out of a pent road over their lands, by the selectmen of the town of Lee, for the use of the town.</p> <p>It appeared, that the application was granted and a juiy ordered in pursuance thereof; that the jury, after notice tc the town, and the appearance of the selectmen, and upon a full hearing, returned a verdict, and assessed the damages of the petitioners.</p> <p>In the Court of Common Pleas, Cummins J. presiding this verdict was rejected, on the ground, that no notice of the pendency of the petition to the county commissioners for a jury, was ordered by the commissioners to be given to the town. To this decision the petitioners excepted.</p> <p>Dwight supported the exception.</p>

<p>Bill in equity to redeem. The plaintiff was a creditor of Elizur N. Deming, the mortgager, and had levied his execution on the equity of redemption, and became the purchaser at the sale by the officer. The defendant, in his answer, set forth a mortgage of the land in question by Deming to Fataus Beckwith, dated March 31, 1827, of which the defendant claimed to be the assignee ; also, a subsequent mortgage from Deming to the defendant, dated July 15, 1827, made to secure the payment of the sum of $800, and a deed of sale, release and quitclaim of the same land from Deming to the defendant, dated July 21, 1827, which was prior to the levy of the execution of the plaintiff.</p> <p>It appeared, that previously to these conveyances, Deming had mortgaged the land to the Massachusetts Hospital Life Insurance Company, which mortgage was still outstanding ; and that he had leased the estate to one Wendover for five years and had received the rent in advance, and that the lease was outstanding at the time of his conveyances to the defendant.</p> <p>The deeds from Deming to the defendant were charged by the plaintiff to be fraudulent; and by the direction of the Court issues were framed for the trial of the validity of the deeds by a jury.</p> <p>Upon the trial of the issues, before Shaw C. J., the jury were instructed, that to maintain the issues on the part of the plaintiff, that the deeds in question were fraudulent and void, it was competent for him to show in evidence any fraudulent • or deceitful practice as against Deming, and if any such fraud or deceit were satisfactorily proved, the deeds were fraudulent and void, and might be so shown by the present plaintiff, a creditor and purchaser of the equity of redemption, although Deming had done no act and made no attempt to avoid them.</p> <p>The plaintiff offered in evidence the deposition of Electa Deming, the wife of E. N. Deming. This evidence was objected to on the ground, that she was interested to defeat her husband’s mortgage, and thus to let in her.own right of dower. The objection of interest was placed on 'two grounds :</p> <p>1. The interest of her husband to defeat the deeds; in which case, his debt to the plaintiff would remain satisfied and discharged, by the sale of the equity of redemption, under which the plaintiff claimed ; otherwise, the husband would be chargeable with the payment of it.</p> <p>It appeared that a similar objection had been taken to the competency of the husband as a witness, and that it was removed by a release from the plaintiff previously to his giving his deposition ; but that the husband’s deposition was given after that of the wife. It was then shown that the release was given in duplicate ; that immediately before the wife gave her deposition, one of these releases was delivered to her, for her husband ; and that he afterwards accepted it.</p> <p>It was thereupon ruled, that as the release was unconditional and solely for the benefit of the releasee, his acceptance might be presumed, or that his subsequent assent related back to the delivery of the release to her for his use, and gave the release effect from that time ; and that upon one or the other of these grounds his interest, and consequently hers, might be considered as discharged at the time when she deposed.</p> <p>2. Upon the other ground, it appeared that the wife had, by a separate deed on the back of her husband’s deed to the respondent, but of a subsequent date and after that deed had been recorded, released her dower. It was thereupon contended, that she had an interest to avoid the deed and thus to annul her release of dower. But it was proved, that she had also released her dower on the back of the deed of the officer lo the plaintiff, by which the equity of redemption was conveyed to him. In neither of these releases did her husband join.</p> <p>It was contended, that the release on her husband’s deed might be presumed to have been made with his assent, and iso was valid ; but that the release on the officer’s deed could not be so presumed, and was therefore void. It was ruled, that either both were valid, or both void, and so, that she had no interest arising out of her right of dower.</p> <p>. The deposition of Electa Deming was accordingly admitted.</p> <p>In the course of the trial a deposition of Thaddeus Reed was read by the defendant, and certain objections were taken to parts of it, which were sustained.</p> <p>In regard to this it appeared that, by a contract in writing, dated July 15, 1827, and of even date with the mortgage by Deming to the defendant, the defendant had transferred to Deming one third part of the right of running a line of stagecoaches from Hudson to Pittsfield, and of receiving one third of the compensation taken for carrying the mail and passengers. There was a stipulation in the contract, that if Deming ■ failed in any instance, of running his stage-coach, according to the contract, he should forfeit the right and Frink should resume the running of the coach and carrying the mail, he being under obligation to the mail contractor to have the mail regularly carried, and to the other proprietors of the line to see that a coach was regularly run on his part of the line.</p> <p>There was also a stipulation on the part of the defendant, that if he failed to perform any part of his contract, the mortgage given by Deming to him, and the promissory notes secured by the mortgage, should be forfeited. It also appeared, that after the execution of the contract, Deming ran the stage-coach three or four weeks, and then failed, and that the defendant resumed the running of the coach.</p> <p>The deposition of Reed, who was one of the co-proprietors . of the line, stated, that upon a settlement made among the proprietors, the defendant paid over for Deming, for moneys receipted for by Deming and his agents, the sum of $200 or upwards, while he ran the stage-coach. But on objection being made, it was ruled, that this was not proper evidence to show that receipts for money had been given by Deming and his agents, without producing such receipts, or showing that they were lost, or were not within the power of the part)' or witness. To this ruling the defendant excepted.</p> <p>The same witness testified, that he had purchased one sixth part of the right of running a stage-coach on the same route, and was proceeding to state what privileges he obtained, and what obligations he assumed under the contract, when it appearing that it was a contract in writing, it was ruled, that it was not competent to give paroi evidence of the contents of an instrument in writing, without showing that it was lost, or not in the power of the party, and without asking the witness to produce it or a copy of it. To this ruling, also, the defendant excepted.</p> <p>In relation to the stipulations in the contract, between Deming and the defendant, the jury were instructed, that the forfeiture on the part of Deming, in case of failure to fulfil the terms of the contract, was from the nature of the subject, immediate and certain, and the defendant would be immediately thereupon reinstated in all the rights which he had transferred to Deming ; but that the clause relating to the forfeiture on the part of the defendant, if he should fail in the performance of the contract, would not operate to defeat the mortgage, or release the notes de facto, but would only operate as a penalty, subject to be reduced upon principles of equity, to such sum m damages, as the other party had actually sustained by such failure ; so that, although these stipulations of forfeiture were mutual and equal in point of form, they were not so in legal effect and operation. This was alluded to as a circumstance to be weighed by the jury, in estimating the character of the transaction.</p> <p>The jury were also instructed, that the deed of release from Deming to the defendant, being a deed of bargain, sale and quitclaim, for a valuable consideration expressed therein, and there being no evidence to show, that it was intended as a payment of the notes secured by the mortgage, it did not in point of law operate as payment, and the notes being still outstanding, they might be collected or negotiated by the defendant as available notes.</p> <p>The jury returned a verdict for the plaintiff.</p> <p>The several questions arising from these decisions and ex ceptions were reserved for the consideration of the Court, upon the motion of the defendant for a new trial.</p> <p>The cause was argued at the bar, at September term 1833, and afterwards in writing.</p>

<p>Replevin by the plaintiffs as executors and trustees under the will of Thomas Melvill, deceased, against the sheriff of this, county, for taking certain chattels, on a process in favor of Joseph Shearer against Thomas Melvill, junior, the son of the testator. The chattels so taken were the farming utensils, stock, and produce of a farm in Pittsfield occupied by the sen.</p> <p>At the trial, before Wilde J., it appeared, that by a contract, under seal, between the father and the son, dated April 1, 1831, it was agreed, that the son should take the superintendence and charge of the farm in question, which belonged to the father, during the term of five years, and should devote his skill and labor to the management, cultivation and improvement thereof; that he should take charge of and keep such cattle and other stock as the father bad already placed thereon, or should place thereon during the term ; that the son should be at liberty to use and apply all such part of the produce ol the farm, as should be necessary for the purpose, to its proper cultivation and to the maintenance of himself and his family and of the laborers and slack employed and kept thereon ; that he should take charge of' and preserve the residue of the produce, and from time to time render to the father an account thereof, and, on request, deliver the same to him or dispose thereof in such manner and upon such terms as the father might direct; that the son should keep an accurate account of the expenses incurred by him in the cultivation and management of the farm, to be rendered from time to time on request, which account, so far as the same should be reasonable and conformable to the instructions of the father, should be paid by him, provided however that such expenses should not exceed the sum of $250 per annum, which sum was to be raised from the surplus produce of the farm, and that the son should make no contracts nor incur any debts for or on account of the father, without his previous direction and consent ; and that the son should be at liberty to cut any wood on the land, which might be necessary for fuel, fencing, and the necessary repairs of buildings, but for no other purpose ; that the father should allow the son for the care of the farm the sum of $200 annually, to be also taken from the proceeds of the surplus produce of the farm ; and that the son should pay all taxes assessed upon the farm. It further appeared, that several contracts of the same purport had been entered into by the same parties between the years 1816 and 1831.</p> <p>By the will of Thomas Melvill, the father, executed on February 19, 1829, the farm in question, together with all the stock and farming utensils thereon, was devised to trustees, (who were also named as executors,) during the life of the son, upon the trust that they should, at their discretion, either permit the son to occupy it during his life, or, should let it and account with the son for the rents and net profits, and nay over the same to him for his use during his life ; the residue of this estate, after the decease of the son, and subject only to the devise in trust, was devised over, one undivided moiety thereof to the wife of the son, for her life, and the other moiety and the remainder expectant upon her decease, to their children.</p> <p>It appeared, that the will was not proved until after the taking complained of.</p> <p>Thomas Melvill, the son, testified, that certain cows taken by the defendant were from calves which were purchaseo originally by him out of the proceeds of the farm and were kept by him upon such proceeds.</p> <p>Upon this evidence the defendant contended, that by virtue of the contracts between the father and the son, and of the will of the father, the property in the chattels taken must be considered to be legally in the son, and that it ought to be so ruled by the Court. This position was overruled, and the question of property was submitted to the jury as a question of fact. The jury returned a verdict for the plaintiffs.</p> <p>If the Court should be of opinion, that this ruling was erroneous, the plaintiffs were to become nonsuit; otherwise, judgment was to be rendered according to the verdict.</p> <p>The case was argued for the plaintiffs, in writing, by Bishop and Marsh.</p>

<p>A deed of mortgage executed, acknowledged and recorded after sunset on Sunday evening, is not void as against a subsequently attaching creditor of the mortgager, it not being within the provisions of St, 1791, c. 58, which prohibits under a penalty, the doing of any manner of labor, business or work between the midnight preceding and the sunsetting of the Lord’s day, and declares void the execution of any civil process, from midnight preceding to midnight following that day.</p> <p>The .original certificate of the register of deeds as to the time when a mortgage deed was received and recorded, is conclusive as between the mortgagee and a creditor who has attached the mortgaged land subsequently to the time stated in such certificate.</p>

<p>Assumpsit for goods sold. At the trial in the Court of Common Pleas, before Strong J., the defendant called Silas Freeman as a witness. The plaintiff objected to him, because he had given to the officer who served the writ, an accountable receipt for the property attached, and the property had been returned to the defendant; and it was therefore contended by the plaintiff, that the witness was interested in the event of the suit. In answer to this, it was proved by the defendant, that the sum of $115, being the amount at which the property was valued in the receipt, was deposited in the hands of the witness by the defendant, for the purpose of indemnifying him against his liability on the receipt.</p> <p>Upon this evidence it was ruled, that the witness was com petent.</p> <p>The plaintiff produced as a witness, Robert F. Barnard, who was the indorser of the writ, and proved, that $300 had been deposited in his hands for the purpose of indemnifying him against his liability to pay costs ; that this sum was so deposited after all of the defendant’s evidence had been produced ; and that the defendant’s taxable costs up to the time of trial did not exceed $80.</p> <p>The witness was rejected, as being still interested.</p> <p>To these rulings the plaintiff excepted.</p>

<p>A testator, after appointing trustees to hold his estate during the lives of his children, directed that they should appropriate the rents and profits to the support of ,his children, in certain proportions, and that if either or all of his children should become necessitous, and it should be adjudged by the trustees more for the benefit of his children to sell all or a part of the estate for the benefit of either or all of his children, the trustees should be authorized to sell all or a part thereof, and appropriate all or a part of the proceeds thereof, in the same proportions, to the support of his children, their heirs or wives; he further provided, that in case of the death of either of his sons, the trustees should apply the rents and profits of the estate to the support of their wife or wives and their children, during the life or lives of their wife or wives, in the same proportions. It was held, that the trustees were not authorized to sell any portion of the estate for the purpose of relieving the necessities of the widow of one of the sons of the testator; and that in case only one of the children of the testator should be necessitous, and a partial sale should be made for his relief, the whole of the proceeds might be applied for his benefit to an extent not exceeding his share of the estate, instead of being divided among all the children in the proportions specified in the will.</p> <p>In a suit in equity by the widow of one of the sons of such testator, against a trustee appointed by the judge of probate, in pursuance of the will, in the place of the original trustees, it appeared, that a sum of money had been awarded and paid to the defendant for damages occasioned by the laying out a road over the estate It was held, that the plaintiff* was not entitled to receive a share of this sum, hut that it must follow the disposition of the residue of the estate.</p> <p>In the same suit it appeared, that the defendant had been of opinion, that the interests of all concerned would be best promoted by a sale of the estate, and that the necessities of one of the cestui que trusts were such as woáld authorize such sale, but seme of the cestui que trusts petitioned the judge of probate to remove the defendant from office, or restrain him from proceeding in the sale; and upon a hearing, although no decree was made, the defendant was admonished by the judge, that if lie persisted in attempting to sell, he would be removed from office, and the project of a sale was, in consequence, abandoned. It was held, that it was not the duty of the defendant to persist in the sale, and appeal from a decree of the judge of probate to the supreme court of probate, unless requested so to do by some one having an interest in the trust estate.</p> <p>In the same suit it was held, that the trustee was not to be allowed for expenses iucurred in making permanent improvements on the trust estate; but that in making repairs, regard should be had to the probable duration of the trust, in determining whether temporary and slight or more permanent and thorough repairs should be made.</p> <p>But where the rent of a trust estate is increased in consequence of improvements made by the trustee, the cestui que trust may be put to his election, either to allow the trustee the expense of such improvements, or be deprived of the increase of rent obtained by means thereof.</p> <p>It appeared in the same suit, that a motion had been made for an injunction to restrain the trustee from making any repairs upon the estate, except such as were necessary for the temporary preservation of the buildings; that upon a hearing at chambers, the judge declined to order an injunction, and stated as a reason, that the motion, with notice to the trustee, would be sufficient to save the rights of the plaintiffs, and that the trustee would not be allowed any expenditures, which the Cunt, upon a hearing, should consider that he was not authorized to make; and that no formal decision was made on the application. It was held, that it was not the duty of the trustee thereupon to stay proceedings in regard to repairs until the decision of the cause, and that expenses for repairs incurred afterwards might be allowed.</p> <p>There is no objection, in principle or by the practice of the Court, to the allowance of commissions in a trustee’s account, in connexion with an allowance of specific charges for services, provided the whole does not exceed a just compensation ; .the allowance of commissions is, in such case, to be considered as a compensation for the services not specifically charged.</p>

<p>Bill in equity. The bill alleges, that Gad Root, on November 11, 1824, published his last will, whereir, after making .several specific legacies, he devised to the respondents the. residue of his estate, real and personal, to be held by them in trust, that the use and improvement thereof should be applied for the comfortable support and maintenance of the testator’s three children, Grace, Asher, and Theodore, so long as they should respectively live; that the testator therein further directed, that so long as each of his children should be industrious and economical, those so continuing should have and be entitled to the use and improvement, each, of one third of the real estate so given in trust as aforesaid, and be entitled to all each should respectively raise by virtue of their improvement of said property; that the testator appointed the respondents executors of his will; that he died in 1824 ; that the respondents accepted the respective trusts conferred upon them, and have always claimed and possessed, as trustees, all such residue of the estate ; that the complainant has been at all times since the execution of the will, industrious and economical, of which the respondents are well knowing; yet, that they refuse to allow the complainant to take and enjoy the use and improvement of one third part of such real estate, but on the contrary have kept portions thereof in their own possession and have leased other portions to Ira Yeomans, one of the respondents, and others, at grossly inadequate rents, and have not permitted the complainant to lease the same at higher rents ; that they have not applied the use and improvement of the real or personal estate so devised to them in trust, to the comfortable maintenance of the complainant; and that they refuse to render a true account of the personal estate of which they have become possessed as trustees, and of the income thereof, and of the real estate. Wherefore the complainant prays, that they may be required to set forth such an account, and that they may be directed to pay over to her such sums of money as she may be entitled to, by virtue of the will; and that- she may be hereafter permitted to take the use and improvements of one third part of the real estate.</p> <p>In addition to the provisions stated in the bill, the will provided, that when each of the testator’s three children, Grace, Asher, and Theodore, should die, the one third of the property so given in trust should be distributed, one half thereof to the children of his daughter Sophronia, and to their heirs. and the other half thereof, to the children of his daughtei Elizabeth and her heirs; and that, in (ose the property so given in trust should be insufficient for the comfortable support of either or all of the testator’s children, as in case of sickness, so much thereof as should be necessary, should be sold and applied to that purpose.</p> <p>The original bill was abated by the death of Eli B. Hamilton, one of the respondents ; but the suit was duly revived against Yeomans.</p> <p>The answer alleges, among other things, that the real estate was, on or about March 14, 1825, divided into three equal portions, with the consent of the cestui que trusts, and that by virtue of this division, certain parcels thereof were assigned to the complainant and to the trustees for her use; that the complainant has not been at any time, since the execution of the will, industrious or economical; that at the death of the testator, the lands were unproductive and not in a state of good husbandry; that when the real estate was divided the respondent, Yéomans, proposed to the complainant, that he would occupy the same himself, with the exception of the Plain lot, allowing her therefor, annually, the interest of the sums at which the parcels were appraised ; and that he stated that he would not take them for one or three years, but for a greater length of time, as he desired to improve them at great expense for the first years ; that she consented to this proposal ; that Yeomans accordingly, proceeded to improve such lands in the best manner in his power, and in order to make them permanently productive, incurred great expenses in such improvements, and has allowed to the complainant, annually, the amount of the interest upon their appraised value, which was more than the occupation of the same was worth, and more than could be procured by the respondent, Yeomans, from any other source or in any other mode.</p> <p>The case was referred to a master in chancery. From his report, it appeared, that at the hearing before him, evidence was introduced on the part of the respondents, and admitted, which proved, that for years previous to the decease of the testator, and ever since, the complainant, as well as her brothers, had been weak-minded, and incompetent o manage with ordinary prudence and discretion, the common concerns of life , that this weakness had been of long standing; but that it did not appear, whether it was a natural, infirmity or induced by the long habits of intemperance in which they had indulged themselves.</p> <p>In regard to a portion of the lands belonging to the complainant, called the Hill lots, and which were improved by Yeomans, it appeared, by the report, that the improvements were necessary, and were judiciously made ; that they were required, to preserve the land and prevent it from running out; that without the improvements the rents would have been very trifling ; and that the increased rents have not been more than sufficient to compensate Yeomans for the expenses incurred by him in relation to them.</p> <p>In regard to a woodlot belonging to the complainant, the master reported, that it was proved, that from twenty to thirty cords of wood might have been annually cut therefrom, without rendering it less valuable than it was at tne death of the testator ; but that from the increased labor of cutting and select.ng the decaying and old trees, the value of the wood would not exceed twenty-five cents a cord ; that the complainant contended, that if Yeomans had permitted her to take possession of her property, she would have obtained an annual income of about five dollars, from the use of the woodlot, and that as he had refused such permission, he ought to account with her for it, and that if he was justified in so refusing, he should have cut the wood himself and accounted with her for the proceeds ; that the respondent, Yeomans, contended, that the complainant was a mere tenant for life, and that though she might be entitled to her house-bote and fire-bote, if the wood were actually needed for such purposes, yet that she could not cut it for the purpose of sale or exchange, or to defray the expenses of her board. The master was of opinion, that as it did not appear, that the situation of the complainant was such as to render the cutting of such wood necessary for her support, the trustee was not chargeable.</p> <p>It also appeared from the report, that the personal property oí the testator amounted to $1004-75, and that the real estate amounted to $4691-21 ; and that Yeomans had charged the complainant the sum of §6‘25, annually, for “care of estate • • " • andduties of trustwhich charge the master adjudged to be just and reasonable. It was also stated in the report, that the respondent, Yeomans, was the husband of the testator’s daughter, Sophronia, who is mentioned in the will, and that he had purchased the reversion of one half of this residuary estate, the other half being devised to his children and their heirs. It did not appear, that the complainant ever kept house or had occasion for a fire for her own use ; but that she had lived at board.</p> <p>The master having allowed the account of the rents and profits, stated by Yeomans, the complainant excepted to his report, for the following, among other reasons.</p> <p>1. That the evidence tending to show want of capacity "n the complainant was improperly admitted.</p> <p>2. That the evidence as to the former intemperate habits ,>f the complainant was improperly admitted. •</p> <p>3. That as Yeomans had no right to lease the estate to himself, and has never exhibited any account of his expenditures for any supposed repairs or improvements, the master should have reported, that he ought to be held liable for the annual produce' of the land, without any allowance for any expenses for such repairs or improvements ; which the master has not done.</p> <p>4. That the master ought to have reported, that the improvements on the Hill lots were made for the benefit of the reversioners, and should have disallowed any claim therefor; which he has not done.</p> <p>5. That the sum allowed by the master for the services ol Yeomans, was unreasonable, against evidence, and ought not to be allowed.</p> <p>6. That the complainant ought not to have been prohibited from cutting wood until her necessities required it, for her support, and that the master ought not to have reported, that she was rightfully forbidden.</p>

<p>In pursuance of the provisions of St, 1822, c, 59, incorporating the Hampshire and Hampden Canal Company, the owner of land, through which the canal was located, being dissatisfied with the damages awarded him by the special commissioners appointed by virtue of that statute, applied to the county commissioners for a jury to assess the damages; and the jury summoned in consequence of such appli cation, returned a verdict in his favor for increased damages. It was held, that he was not entitled to costs, the St, 1822, c, 59, making no provision for the taxing of costs for the land-owner under such circumstances, and the St, 1764, c, 28, § 9, which provides that in all actions, the prevailing party shall be entitled to costs, not being applicable to the case.</p> <p>Where a warrant issued by the county commissioners to a sheriff, directing the em pannelling of a jury to assess the damages sustained by a land-owner, in consequence of the location of a canal across his land, was made returnable to the Court of Common Pleas, and was accordingly returned to that court, together with the verdict, and that court thereupon ordered the warrant and verdict to be transmitted to the county commissioners, on the ground, that the warrant should have been returnable to the county commissioners, it was held, that the return of the warrant was of the substance of the proceeding; that, if the warrant should have been returnable to the county commissioners, the error was not cured by the order of the Court of Common Pleas; and that the county commissioners had no jurisdiction over such warrant and verdict.</p>

<p>Assumpsit. The declaration consisted of the general counts. Plea, the general issue.</p> <p>At the trial, before Putnam J., it appeared, that Samuel Hunt, the plaintiff’s intestate, was the holder of a note for the sum of $500, made by Peter Wheeler ; that Samuel Hunt, on June 18, 1829, indorsed the note, which was payable to himself, to Jonathan Hunt, the defendant’s intestate that Jonathan Hunt, at the same time, gave the following receipt, viz. “ When Samuel Hunt shall pay me his note of $100, given by him this day to me, then I will deliver up to him a note of $500, which he has indorsed over to me, against Peter Wheeler. Jonathan Hunt. Also, $100, as per his note of this date, August 31, 1829 ; ” that Wheeler paid his note to Jonathan Hunt, on May 11, 1830 ; and that Jonathan died in May 1832, and Samuel, in December 1832.</p> <p>It further appeared, that Jonathan had not demanded the $200 of Samuel, and that Samuel had not tendered that sum to Jonathan, or taken any step to redeem Wheeler’s note, previously to its payment by Wheeler.</p> <p>The defendant contended :</p> <p>1. That the receipt proved a mortgage of Wheeler's note, defeasible on the payment by Samuel Hunt, of his two notes.</p> <p>2. That as no time was appointed within which the note of Wheeler was to be redeemed, it could only be redeemed in the lifetime of the mortgager.</p> <p>3. That the defendant held the proceeds of Wheeler’s note, as Jonathan Hunt had held the note itself.</p> <p>4. That a demand and notice ought to have preceded the action.</p> <p>The judge ruled, that Jonathan Hunt was accountable for the surplus, as for property pledged.</p> <p>The plaintiff contended, that in estimating the amount of the damages, interest should be cast on the balance due his intestate, from the time of the payment by Wheeler, to the time of the judgment, allowing a reasonable time to the defendant’s intestate to pay over such balance. But the jury were instructed,.if they should find for the plaintiff, to cast the interest on the balance, only from the date of the writ.</p> <p>The jury returned a verdict for the plaintiff, for the sum of $408 It appeared, that the jury understood the judge to have adopted the principle contended for by the plaintiff, in relation to interest, and to have framed their verdict accordingly. The verdict was thereupon amended by the direction of the judge.</p> <p>If the first instruction of the court was wrong, a new trial was to be granted. If the direction of the court in regard to the verdict was erroneous, the whole Court were to restore the verdict to its original state, and to give judgment accordingly.</p>

<p>In an action of slander, evidence that the defendant was in the habit of talking much about persons and things, and that what he said was not regarded by the community as worthy of notice, and seldom occasioned remark, was netd not to be admissible, in mitigation of damages.</p>

<p>A bond was executed by the administrators of an intestate estate, to the heirs at-law, conditioned that the obligors should perform the award of an arbitrator^ to whom the parties agreed to refer all differences concerning th.e settlement of the estate, and who was to award when and in what manner the obligors should settle their final account as administrators, in the probate court, and what items, whether of debt or credit, should constitute such final account. A similar bond was executed by the heirs, to the administrators. The referee subsequently awarded, that the administrators should present theii final account, which should contain the items of debt and credit specified in the award, stated in (he usual form of such accounts; and the administrators presented their final account in the form so prescribed, except that they inserted therein a claim <( for expenses of settlement with the widow and heirs”; and this account, so altered, was allowed by the Court oi Probate. It was held, that the insertion of such claim was a breach of the condition of the bond, even if it was for services performed subsequently to the award; and notwithstanding the heirs might have appealed from the decree allowing the account; and that the acceptance of their distributive shares by the heirs, was not a waiver of any claim on account of such breach, although the acceptance was made with the knowledge that such claim had been allowed by the Court of Probate.</p>

<p>By an agreed statement of facts it appeared, that on Feb- , /ary 22, 1808, Edward Ward made his will, which contained the following clauses :</p> <p>“ I give and bequeath unto my wife, Dorothy Ward, fifty dollars yearly and every year during her natural life, in room of her thirds, together with half the house and half the household furniture belonging thereto.”</p> <p>“ Also, I give and bequeath unto the sons and daughters of'my son, Amos Ward, two hundred and fifty dollars, to be divided as follows, viz. ; I give the sons thirty dollars, then remainder of the abovenamed sum is to be divided among all the children, equal alike at the age of twenty-one, and paid to them by my executor hereafter mentioned ; and interest paid to them yearly for theii present support.”</p> <p>“ Also, I give and bequeath unto my second son, Nathan Ward, (the appellee,) all the land lying on the east side of the road leading to Salem ; also, all the land lying on the north side of the turnpike, bounded &c. ; also, five acres on the west side of the above said road leading to Salem, &c. ; by said Nathan Ward paying the other children, towards their share of my estate, three hundred dollars ; then the above named land is to be Nathan Ward’s own estate, to him, his heirs, and assigns for ever ; this 1 give to, him as his full share of my estate ; which I consider is five hundred dollars given him.”</p> <p>The testator also bequeathed to Calvin Mayo and Sally, his wife, who was the daughter of the testator, certain real estate, “ by Calvin Mayo paying six hundred dollars to the other children towards their portion.” Several legacies were given to the other children, and the residue of the estate, real and personal, was given to the testator’s children. Nathan Ward, the appellee, was appointed sole executor.</p> <p>It appeared, that, on January 21, 1818, the will was proved and allowed; that the widow of the testator waived the provisions made for her in the will, and claimed her dower, and that it was assigned to her under the authority of the Court of Probate, out of the lands devised to Mayo and his wife, and out of one of the three tracts of land devised to the appellee ; that a dispute having arisen among the heirs of the testator, in consequence of the assignment of the widow’s dower, the following agreement was entered into, on October 27, 1818 :</p> <p>“Articles of agreement indented &c., by and between Calvin Mayo and Sally Mayo, both of Orange, on one part, and the other heirs of Edward Ward, of Orange, deceased, on the other part, witnesseth, that the said Calvin and Sally Mayo, for the consideration hereafter mentioned, hath agreed and doth hereby covenant and agree, that the widow Dorothy Ward’s thirds shall stand agreeable to the commissioners' return ; and also further covenant and agree the said widow shall receive one third part of the personal estate, after the payment of debts and cost of settling said estate ; and we do further agree to relinquish all claims for cost that has arisen or shall arise on our part against said estate ; and do further agree to relinquish to the other heirs our proportionable part of the sum of four hundred dollars, which shall be hereafter described ; and we further agree, that said estate shall be settled without any further trouble on our part; and we further relinquish all claims on said estate, except the last dividend. And the said heirs, who shall hereafter subscribe their names, on their part, doth hereby covenant and agree, that the widow Dorothy Ward’s thirds shall stand, agreeable to the commissioners’ return ; and also do further covenant and agree, that the said widow shall receive one third part of the personal estate, after the payment of debts and cost of settling said estate ; and we do further covenant and agree to let the sum of four hundred dollars remain -in the hands of the said Calvin and Sally Mayo for a compensation for the third being set on their land, without use, until the said widow’s decease. To the true and faithful performance of the several covenants and agreements aforesaid, the aforesaid parties do hereby respectively bind themselves and their respective heirs, executors, and administrators, each to the other, their executors and administrators, in the penal sum of four thousand dollars And in testimony whereof,” &c.</p> <p>This agreement was executed by Mayo and his wife, and all the sons of the testator except Amos Ward, who was a spendthrift; it was also executed by Oliver Ward, and James Stratton, the sons in law of the testator, but not by their wives.</p> <p>After the execution of this agreement the appellee paid to the widow, in pursuance thereof, the sums of $300 and $142-63, which he considered to be one third part of the personal property of the testator, after the payment of debts and the charges of administration.</p> <p>It also appeared, that the appellee took the note of Calvin Mayo for the sum of $400, which sum, by virtue of the agreement, was to remain in the hands of Mayo without interest until the decease of the widow, who was still alive ; and that the appellee had not charged himself with, or accounted for, that sum ; that after the widow of the testator had waived the provisions made for her in the will, and claimed her dower, the appellee, by order of the then judge of probate, paid to her the sum of $100, and credited himself with that sum in his account; and that the appellee paid to Moses Smith the sum of {$5'23, and to Oliver Ward, the sum of $3-42, on accounts barred by the statute of limitations, and credited himself therewith in his account.</p> <p>It further appeared, that the testator, on May 6, 1817, after the execution of the will, for a valuable consideration, conveyed to the appellee two of the tracts of land conditionally devised to him in the will; that the appellee had never been in possession of the third tract devised to him, it having been assigned to the widow as a part of her dower ; that the appellee did not disclaim that tract until September 8. 1832, when he filed a disclaimer, under his hand and seal, in the Court of Probate ; and that he has taken property under the will as a residuary legatee.</p> <p>On June 30, 1819, or thereabouts, the executor recovered seisin of a farm known by the name of the Allen farm, in an action on a mortgage given by James Allen to the testator, and was put in possession thereof under a writ of possession.</p> <p>On November 10, 1821, the heirs had a meeting for the purpose of settling the estate, and small sums, of about $16-32, were paid to them by the appellee, in pursuance of the agreement, as the last dividend. This was understood to operate as a final settlement of the estate. At the same time it was ascertained that the Allen farm was not wanted, either to pay the debts of the estate, or the specific legacies ; in consequence of which, the heirs agreed to take possession of the farm and of the personal property connected with it, and did accordingly take possession and assume the control thereof, as of their own property. On April 23, 1823, the mortgage having been foreclosed, Royal Ward, to whom four of the heirs had conveyed all their right and title in the farm, attempted to convey it, jointly with the appellee and Mayo, to John Burbeck, Mayo conveying one eighth in his own right and one eighth in the right of his ward, Amos Ward. No license to sell the real estate of the testator, was obtained by the appellee ; but the heirs all received a distributive share of the proceeds of the sale. There were on the farm, at the time of the conveyance, several articles of personal property, valued at the sum of $52-50, which were sold with the farm to Burbeclc.</p> <p>On June 21, 1831, the appellee rendered his account of administration ; and on February 6, 1833, a decree was made by the judge of probate in relation thereto, from which Royal Ward, one of the sons of the testator, and Calvin Mayo, appealed, and filed the following reasons of appeal :</p> <p>1. Because the judge of probate decreed, that the agreement between the widow or Calvin Mayo and his wife and the heirs of the testator, was valid as against the other heirs and legatees, excepting Amos Ward, and that it was not binding on him. Whereas the appellants allege, that it was not binding on any of the heirs or legatees.</p> <p>2. Because the judge decreed, that the Allen farm was reduced to money by the sale, that the proceeds of the sale had been equitably and proportionably distributed among the heirs, and that the executor was not bound to charge himself with the same. Whereas the appellants allege, that the appellee now has title thereto, and ought to be charged therewith.</p> <p>3. Because the judge decreed, that the appellee was not bound to account for the sum of $300, for lands conditionally-devised to him by the will. Whereas the appellants allege, that he ought to account therefor, with interest.</p> <p>4. Because the judge decreed, that two charges of the appellee in his account, for money paid to the widow, amounting to the sum of $442-63, by virtue of the agreement, should be allowed, he charging himself with Amos Ward’s portion thereof. Whereas the appellants allege, that those charges are not valid as against them or any of the heirs.</p> <p>5. Because the judge decreed, that the appellee should not charge himself with the whole sum of $400, for a debt due the estate which he suffered to remain, and has agreed shall remain, in the hands of Calvin Mayo, without interest, by virtue of the agreement, but should -only charge himself with Amos Ward’s proportion thereof.</p> <p>6. Because the judge decreed, that the charge of the sum of $100, paid to the widow agreeably to the decree of the late judge of probate, should be allowed. Whereas the ap pellants allege, that such payment was unauthorized, and the decree void.</p> <p>7. Because the judge decreed that several items in the account by which the appellee charged the estate with the payment by him of certain debts barred by the statute of limitations, should be allowed.</p> <p>8. Because the judge decreed, that all the items of charge against the estate and in favor of the appellee, should be allowed, with the exceptions in favor of Amos Ward before mentioned. Whereas every item thereof ought to have been disallowed.</p> <p>It also appeared, that the judge decreed, that the executor should be held to account with the minor child of Amos Ward, for his share of the sum of $250, bequeathed to the children of Amos Ward, without interest. The appellee accordingly credited himself with this sum in his account, as “money given by will to Amos Ward’s heirs, to remain in my hands until they become of twenty-one years of age.” The appellants objected to the allowance of this charge.</p> <p>The appellants claimed, that the appellee should charge himself in his account with the value of the Allen estate, amounting to the sum of $400, of several articles of personal property sold with that estate, amounting to the sum of $52-50, and of other personal property turned out by James Allen to satisfy costs, amounting to the sum of $20-23.</p>

<p>Devise : (< I will and require that my daughter L shall be supported out of my estate with all necessaries she may need, either in sickness or health, and shall have the use of the north room in my house, so long as she shall live in a single state ; but if she shall contract marriage, I do give and bequeath unto her the sum of $150, to be paid to her by my son O, in full of all demands.11 O, to whom the testator had devised all his real and personal estate, gave bond for the payment of debts and legacies, and afterwards conveyed the real estate to the defendant, who had notice of the provision in the will, in favor of L. L was never married. It was held, that such provision was a charge upon the real estate in case of the deficiency of the personal estate ; that the remedy of the plaintiff, if she stood in need of relief, was by action against the defendant, or upon the bond, at her election j but that the defendant was bound to provide only what should be necessary for her support, over and above her own earnings.</p> <p>In an action by L against the defendant it appeared, that L continued to reside in the north room of the house a few weeks after her brother had removed therefrom, living upon charity ; that she then applied to the overseers of the poor for relief y and that one of the overseers informed the defendant thereof, and stated that they intended to make him pay for her support. It was held, that the defendant was liable to the action, without any further notice or demand.</p>

<p>In an action upon the promissory note of a partnership, against the surviving part ner, it was held, that an indenture by which the plaintiff and the deceased partner, and another person, had covenanted to indemnify the surviving partner against al debts due from the partnership and against all actions brought against him by reason of such debts, was a bar to the action.</p> <p>It appeared, in the same action, that the indenture, after being executed by the covenanters, was intrusted to the deceased partner, with authority to deliver it to the covenantee; but before such delivery the following indorsement was made on the indenture: “ It is understood by the parties, that any errors in accounts, found on settlements, shall be rectified.” This was signed by the two pattners only, and was not under seal. It was held, that this indorsement was no part of the indenture, and did not affect the rights and liabilities of those covenanters who were not parties to it; and that the possession of one of the parts of the inden turc by the covenantee was primá facie evidence of a due delivery, so as to throw upon the plaintiff the burden of proving that such possession was wrongful.</p> <p>In the same action, the plaintiff contended, that if the deceased partner, at the time of the delivery to the covenantee, stated to him, that the indenture was put into his hands to be delivered only upon the performance of a condition, the presump tian of law would be, that the deceased partner received it on such condition, and that if it was intrusted to him upon condition, the presumption would be, that the terms of the condition were communicated to the covenantee. But it was held, that tile burden of proof lay upon the plaintiff", to show that the indenture was put into the hands of the deceased partner on such condition, and that the terms of the condition were so communicated.</p> <p>The f laintiff, in the same action, released the other covenanter, and offered him as a \\ itness to prove that the indenture was put into the hands of the deceased partner upon such condition. It was held, that he was competent.</p> <p>In proving the execution of a deed, the testimony of the subscribing witness cannot he dispensed with, if it can be procured; but if such witness fail to establish the execution of the deed, the party is not concluded by his testimony, but may prove the execution by other evidence.</p> <p>It is not competent for a party calling the subscribing witness for the purpose of proving the execution of a deed, to impeach his general character for truth.</p>

<p>The defendants gave the plaintiff a bond, reciting that for a valuable consideration they had contracted to sell him 750'acres of land to be selected from their lots, in case he should at his own expense select and survey that quantity, and that i-was expected that he should complete his selection within two years from the date of the bond, and conditioned, that if the defendants, on being duly notified of the selection, with the numbers of the lots &c., and on the giving up to them of the bond, should execute and deliver to the plaintiff a good and sufficient warranty deed thereof, then the bond should be void. It was held, that the bond did not require absolutely that the selection should he made and notice of it given, within the two years, and that a declaration averring these things to have been done within a reasonable time, was sufficient.</p> <p>Where concurrent acts are to be performed by the parties to a contract, at the same time, the party suing for damages for the non-performance by the other party, is required only to aver that he was ready and willing (without alleging an offer) to perform the agreement on his part, and that the defendant was requested to perform it on his part but refused or neglected so to do.</p> <p>A party who contracts to execute and deliver a deed, is bound to prepare the deed, if there be no stipulation that it shall be prepared by the intended grantee.</p> <p>A contract to execute and deliver a good and sufficient warranty deed of land- is not a contract to convey a good title; wherefore a declaration alleging as a breach, that the defendant had no legal and valid title, is insufficient.</p> <p>In an action on a bond to execute and deliver a deed of land, a plea of general performance, not stating specially the manner of performance, was held to be bad.</p>

<p>The St. 1824, c. 153, § 3, provides, that juries summoned, under the acts for the support and regulation of mills, to assess damages to any person, “ may take into consideration, in their assessment, any other damage occasioned to such person, as well as the damage to the land overflowed,” &c. And where a jury was empannelled to assess the damages sustained in consequence of the erection of a mill dam, whereby a tract of meadow, wood and arable land belonging to the complainant was overflowed and injured, it was held, that evidence of damage done to his up land adjoining to the meadow was admissible.</p> <p>If, upon a complaint under the mill acts, to recover damages for overflowing the complainant’s land, the complainant would claim for consequential damages to other land belonging to him, it is proper that he should set out such claim in the complaint.</p>