Volume 33 — Massachusetts Reports

<p>This was an action of slander. The declaration contained three counts. The first count set forth, that the defendant, contriving and intending to expose the plaintiff to the penalties prescribed by law for the crimes of plundering, robbing, and stealing, did speak and publish the following words of and concerning him, to wit: “ We ” (meaning the defendant and others who had the superintendence of the sale by auction of a certain lot of books) “ offer these books under a disadvantage ; for the library ” (meaning the library belonging to the subscribers of the Lancaster Reading Room) “ has been plundered ” (meaning that it had been robbed) “ by Deacor James G. Carter, of this town.” In the second count, the same words are set forth as having been spoken by the defendant ; but after the word “ plundered,” is inserted this innuendo, to wit: “ (meaning, that books had been feloniously stolen from said library).” The third count set forth the words as follows : “ The library has been plundered ” (meaning, that it had been feloniously robbed) “by Deacon James G. Carter, of this town.”</p> <p>At the trial, before Morton J., it appeared, that the plaintiff was, at the time when the words were spoken, one of the proprietors of the library of the Lancaster Reading Room, an unincorporated association ; and that by verbal regulations made by the proprietors, which were well understood by them, the books were to be kept in a particular place, and were not to be removed therefrom by any proprietor, unless in conformity with such regulations.</p> <p>The plaintiff offered to prove, that these words were spoken at a public auction, at which persons not proprietors were present; and that no explanation of the words was made oy the defendant, at the time when they were spoken.</p> <p>The plaintiff was to be nonsuited, or a new trial was to be granted, as the Court.should direct.</p>

The defendant was indicted for forgery, in the Court of Common Pleas at its June term in 1834, and, having been found guilty, claimed an appeal to the Supreme Judicial Court.

<p>A testator bequeathed the “ residue ” of his property to his grandchildren, with a proviso, that if any grandson should die before he became of age, his share should be equally divided among the surviving grandsons. After the death of the testator, the plaintiff, one of the executors, paid to the defendant, who was the father and guardian of J. C., one of the grandsons, several sums of money, taking receipts therefor, which described the plaintiff as one of the executors, and stated that “ as said sums were paid in advance, and before the payment of any sum to the other residuary legatees, and before a final settlement of the testator’s estate, it was agreed, that the above sums were paid upon the condition, that all such residuary legatees were to be made equal, and that J. C. was not to have any advantage by the payment of such sums in advance, but was to allow therefor as equity should require, on a final payment to such residuary legatee.” After these payments had been made J. C. died in his minority, in consequence of which the legacy to him lapsed, and the other grandsons demanded of die executors their respective portions of the share of the estate to which J. C. would have been entitled, if he had attained the age of twenty-one years. It was held, that the plaintiff was entitled to recover back the money so paid to the de \idant; that no special demand was necessary to enable him to maintain an action for this purpose ; that the money was paid by the plaintiff upon his own personal responsibility, and therefore, that such action must be brought by the plaintiff alone, and in his individual right ; and that the defendant was not entitled to any allowance for expenses incurred for the education and support of his deceased son, even if he had expended money more liberally for this object, in consequence of the payment so made to him by the plaintiff.</p>

<p>K testator gave to his wife two cows from his stock of cattle, to the eldest of his two sons “ the remainder of his stock of cattle except one pair of yearling steers,” and to the other son “ one pair of yearling steers.” At the time of making the will the testator had but one pair of yearling steers, and he had reason to expect a speedy termination of his life, and he did in fact die before the steers ceased to be yearlings. Held, that the bequest of the steers was a specific legacy.</p> <p>Where the plaintiff suffered a pair of oxen belonging to him to be attached with cattle of a stranger, on a writ against the stranger, without giving the officer notice of his title, and after the lien by attachment had terminated and the oxen were separated from the other cattle, the officer seized them on an execution against the stranger, it was held, that the plaintiff might maintain trespass against the officer for such seizure, and this without any special notice that the oxen were his property, and without a previous demand.</p>

This was ejectment on a mortgage deed, dated October 25, 1825, and recorded, given by Daniel Coombs to the female plaintiff, who was then unmarried, to secure the pay-, ment of two notes, each for the sum of $200, one payable in three years, and the other in seven years, from April 1, 1826. On April 26, 1829, Coombs conveyed the mortgaged land to the defendant with covenants of warranty.

<p>Where goods under attachment were assigned by the owner, and were then again attached by the same officer, it was held, that the delivery of the instrument of assignment was a sufficient delivery of the goods; and that the assignee having paid the claim of the first attaching creditor, might, upon giving the officer notice of such payment and of the assignment, and demanding possession of the goods, maintain replevin therefor against him.</p> <p>Where a citizen of Rhode Island, by a bipartite deed of assignment, to which his creditors were not parties, conveyed all his property in trust to the assignee for their benefit, it was held, that such assignment was valid in this Commonwealth as against a citizen of Rhode Island who had attached a portion of the property here, it being valid against attaching creditors by the laws of that State.</p>

Trespass de bonis asportatis brought by the plaintiffs, Phelps and Spofford, who were machinists residing at Wind-ham, in Connecticut, against the defendant as sheriff of the county of Worcester, for taking a cylinder paper-making machine and dryer, with apparatus, of the value of $2260.

<p>This was trespass de bonis asportatis, for taking certain heavy articles of machinery, which had been attached by the plaintiff, a deputy sheriff, as the property of Josiah Snow, at the suit o Albert W. Snow.</p> <p>The trial was before Shaw C. J.</p> <p>It appeared that the machinery in question was placed by the plaintiff in the custody of a keeper, without being removed from its place in the manufactory ; that this was done with the consent of Josiah Snow ; and that whilst it was under the care of the keeper, it was taken by the defendants.</p> <p>The defendants justified the taking, under two mortgages made by Josiah Snow prior to the attachment.</p> <p>It appeared that one of these mortgages was executed by Josiah Snow, and registered by the town clerk of South-bridge, where the mortgager resided, and then sent to the defendant, Williams, who was the mortgagee.</p> <p>It was objected to the validity of this mortgage, that there was no actual delivery of the property.</p> <p>In reference to this objection, it was ruled, that since the St. 1832, c. 157, the execution and registration of a mortgage deed of personal property, without actual delivery of the property, is sufficient to vest a special property in the mortgagee, and to give effect to the mortgage.</p> <p>The jury returned a verdict for the defendants.</p>

Trover to recover the value of a quantity of wood attached and sold by Seneca Hills, a deputy of the defendant, who is the sheriff of this county.

<p>A petition was presented by a town, to tne county commissioners, for the empanel-ling of a jury to alter the location of a highway laid out by the county commissioners through a farm belonging to the town, and to assess the damages thereby occasioned, and if the jury should not alter the location, then to assess the damages which the town would be entitled to receive for the injury to their farm. The jury returned a verdict, that they were unable to agree upon any location of the highway, and assessed the damages sustained by the town, in consequence of the location by the county commissioners. The verdict was returned to the Court of Common Pleas, and, the town having, in writing, withdrawn their claim for a jury in relation to the alteration of the location, was accepted. It was held) that the jury were authorized to assess such damages, although they were unable to agree upon any location of the road ; that the acceptance was legal; and that the town was entitled to judgment for the damages so assessed.</p>

<p>Br the answer of Benjamin Butman, one of the selectmen of the town of Worcester, which was summoned as the trustee of the defendant, it appeared, that the defendant was employed by that town, for the sum of $350, to take charge of its paupers for one year, commencing April 1, 1833 ; that on March 31, 1834, a settlement of accounts was made on the part of the- town with the defendant, in anticipation of the close of the year, and that the selectmen gave him a check on the Worcester Bank, payable to him or the bearer, for the sum of $210, which was the balance due at the end of the year; that there being however a debt due from the defendant to the town, the amount of which was not then ascertained, it was agreed, that the amount of this debt, when ascertained, should be deducted from the sum to be obtained by the check ; that this debt was afterwards found to amount to the sum of $67-58; that the defendant being also indebted to Butman in the sum of $19-77, it was further agreed by the selectmen and the defendant, that the check should be placed in Butman’s hands, and the amount thereof paid to him by the bank, in order that he might' retain the sums due from the defendant to the town and to himself; and that the check was accordingly received by Butman, and was in his hands at the time of the service of the writ.</p>

<p>On a case stated it appeared, that the plaintiff, in contemplation of a marriage between herself and William Hodgdon, and without any pecuniary consideration, on January 8, 1831, by her deed duly recorded on that day, conveyed to Hodgdon her real estate, the same being subject to a mortgage. In April she intermarried with Hodgdon. In June one Wheeler, a deputy of the defendant, the sheriff of this county, attached on three writs against Hodgdon, the right in equity to redeem the real estate above mentioned, and likewise personal property of Hodgdon. The marriage was void, by reason of Hodgdon’s having then a lawful wife living in Maine, and this fact coming to the knowledge of the plaintiff, and not being denied by Hodgdon, he, on the 8th of August, by his deed recorded on that day, reconveyed to the plaintiff all his righ* and title to the real estate previously conveyed by her to him. No pecuniary consideration was paid by her, but the inducement of Hodgdon in making the reconveyance, was, to prevent, so far as should be practicable, her sustaining loss by having her real estate applied in satisfaction of his debts. Subsequently to the reconveyance Wheeler attached the equity of redemption on two more writs against Hodgdon. Judgments were recovered against Hodgdon in the five suits, and the executions were delivered to Wheeler within thirty days after the rendition of the judgments. The personal property attached on the three first writs was sold on mesne process. The equity of redemption was in due time seized and sold by Wheeler on one of the executions in the three first suits, and a part of the proceeds, together with certain land of Hodgdon, was applied in satisfaction of those executions, and the balance, together with a part of the proceeds of the personal estate sold on mesne process, was applied to satisfy the other two executions. A few minutes after the sale of the equity of redemption, and before the officer had given a deed to the purchaser the plaintiff gave to the officer and to the purchaser, written notice of her title, and demanded that the proceeds of the personal property sold on mesne process should be applied to the executions in the three first suits.</p> <p>This action was brought to recover a part of the proceeds of the equity of redemption, on the ground that it had been misapplied by the officer.</p>

This was assumpsit to recover payment for services per formed for the defendant by the plaintiff’s son. .At the trial, in the Court of Common Pleas, before Strong J., the defendant, for the purpose of proving that the plaintiff's son was lawfully bound to him as an apprentice, offere#1 in evidence an indenture of apprenticeship dated March 17, 1832, executed by the selectmen of Douglas, acting as overseers of the poor, by which the son was so bound to the defendant until he…

<p>The party entitled to redeem an equity of redemption sold on execution, gave a deed of quitclaim, in common form, in which he remised, released, and quitclaimed his right and interest in and to the mortgaged premises, habendum to the grantee, his heirs and assigns. Held, that this was a good assignment in equity of the grant- or’s right.</p> <p>The possessor of an equity of redemption sold on execution, having refused to accept the amount of the purchase money and interest, demanded the same on a subsequent day after sunset. Held, that the demand was at an unreasonable hour, and consequently a refusal to comply with it did not avoid the effect of the tender.</p> <p>Hie defendant in a bill in equity to redeem having filed an answer, in which he relied on the grounds that the tender made by the plaintiff was not unconditional and that the plaintiff was not always ready afterwards to pay the money, it was held, that he had waived his right to plead that the suit was not commenced (pursuant to St. 1821, c. 86, § 3,) within one year after the making of the tender.</p> <p>On a bill to redeem an equity of redemption sold on execution, the defendant must account for the vents and profi s received by him, notwithstanding the plaintiff may have tendered to him, before the commencement of the suit, the amount of the purchase money and interest, without regard to the rents and profits.</p> <p>In the same suit it was held, that the defendant, who, after the tender, had occupied the mortgaged premises on a lease from the mortgagee at a low rent and afterwards purchased the mortgage, should account for the fair annual value of the premises. The plaintiff in a bill in equity to redeem, must account for the interest, if any, received by him on the money tendered to and refused by the defendant.</p> <p>On a bill in equity to redeem, the defendant was allowed a commission of five per cent on rents collected by him.</p> <p>Tile defendant in a bill in equity to redeem, who was possessed of the equity 01 redemption under a sale on execution, having taken a lease of the mortgaged premises from the mortgagee and made repairs and improvements, and having subsequently purchased the mortgage, was allowed the expense of the repairs and improvements.</p>

<p>F, who had lent the sum of $100 to B, having demanded payment thereof, B delivered to- him a nole for $150, which was executed by B, as principal, and the defendant, as surety, and was payable to the Blackstone Bank, and requested him to get it discounted by the Bank and to pay himself out of the proceeds; F agreed to do this, and in consequence forbore to sue B, although he had not promised so to do. It was held, that the note was given to F on a good consideration; that the defendant had no right to revoke the authority given to F by B to get the note discounted, although B had failed before it was discounted ; that as the directors of the bank would have been authorized to discount the note for the benefit of F, at least to the extent of his interest therein, even if the circumstances under which he received the note from B had been disclosed to them, notwithstanding the-defendant had given them notice of the failure of B and requested them not to discount it, there was no fraud on the part of F, in omitting to disclose these circumstances to them ; and that the giving up such note by F to the defendant, was a good consideration for a new note given by the defendant to F..</p>

Covenant broken. The plaintiff relied upon the breach of the covenant of warranty in a deed, by which the defendant conveyed a small. tract of woodland to Thomas Burrage, who afterwards conveyed the land and assigned the covenant to the plaintiff. The action was commenced on Septembei 11, 1832. The plaintiff averred, that as to a portion of trie 'and conveyed and warranted, Elisha and Joshua Vose had a good title, in fee, under which they entered and ousted the plaintiff.

<p>Trover for certain articles of household furniture.</p> <p>At the trial, before Shaw C. J., it appeared, that the plain tiff, who resided in Wales, in the county of Hampden, about the time of the marriage of his daughter with one Weaver, in 1829, placed the furniture in question in the house of Weaver, which was then building, at Wales ; that the plaintiff told bis daughter before the marriage, that he could not give them much furniture, but that he would procure and lend them enough to make them comfortable ; and that two or three days after the marriage, in the absence of her husband, she signed a receipt in the presence of two witnesses, acknowledging that the furniture was a loan and not a gift.</p> <p>There was evidence tending to show, that Weaver and his wife continued to use the furniture as their own, so long as they lived in Wales, and that upon their removal to South-bridge, they carried it with them.</p> <p>The defendants claimed title to the furniture under a mortgage made to them by Weaver, at Southbridge, on March 21, 1833, for a valuable consideration.</p> <p>it appeared, that Weaver failed and went from Southbridge in May 1833, leaving the furniture in a public house kept by him ; and that the defendants soon after took possession of the furniture under their mortgage.</p> <p>Evidence was produced tending to show that Weaver did not know, until after the date of the mortgage to the defendants that it was understood between the plaintiff and his daughter, that the furniture should be received as a loan and not a gift.</p> <p>The jury were instructed, as follows : 1. That where a</p> <p>father provides household furniture at or about the time of the marriage of his daughter, and, with the consent of the intended husband, places it in the house provided by the husband for the residence of himself and wife when married, this raises the presumption, that such furniture, is a gift to the daughter; and that upon the marriage the property in such furniture vests in the husband.</p> <p>2. That any stipulation or arrangement between the father and daughter, made after the marriage, that the property shall be claimed to be a loan and not a gift, or any such stipulation made before the marriage and not known or assented to by the husband, would not repel that presumption or prevent the M'operty from vesting in the husband.</p> <p>The case was submitted to the jury, with directions to return a verdict for the plaintiff, if they should find that the arrangement was known or assented to by the husband y otherwise, for the defendants. The jury returned a verdict for the defendants.</p> <p>If the above directions were wrong, the verdict was to be set aside, and a new trial granted ; otherwise, judgment was o be entered on the verdict.</p>

<p>This was case against the sheriff of this county, for the default of Lemuel Dunbar, one of his deputies.</p> <p>At the trial, before Shaw C. J., it appeared that on May 29, 1829, John Fitz was tne owner of two distinct parcels of real estate, designated respectively as the homestead, and the woodlot and meadow ; that botn parcels were under mortgage ; that on that day, Clement and timitn, two creditors of Fitz, attached his interest in the real estate ; that after these attach ments, the homestead was mortgaged by Fitz to William S. Wells, to secure the payment of the sum of $600 ; that on May 30, 1829, and subsequently to the mortgage to Wells, the interest of Fitz in the real estate was again attached, first by Stone and then by the plaintiff, who were both creditors of Fitz; that the executions in the four actions were delivered to the deputy, Dunbar, at the same time and within thirty days after the rendition of judgment, without any special directions as to the mode of serving them or applying the proceeds of the property attached.</p> <p>It appeared by the officer’s returns, that he sold the equity of redemption in the woodlot and meadow on Clement’s execution, for the sum of $160, and after satisfying that exe* eution applied the balance, amounting to the sum of $66-75, towards the satisfaction of Smith’s execution ; that he sold the equity of redemption in the homestead on Smith’s execution and having appropriated the sum of $9-41, in satisfaction thereof, applied the residue of the proceeds, amounting to the sum of $433-97, to the payment of the mortgage of Wells.</p> <p>By this mode of selling and applying the proceeds, the plaintiff and Stone obtained nothing on their executions. Whereas, if the officer had satisfied the executions of Smith and Clement out of the proceeds of the equity of redemption in the homestead, this would have left the proceeds of the sale of the equity in the woodlot and meadow, to be applied in satisfaction of the executions of Stone and the plaintiff.</p> <p>It further appeared, that the officer did not return the plaintiff’s execution till more than a year after the return day, but that he did return it before this action was brought. ' The plaintiff contended, that this was a breach of duty for which he was entitled to recover nominal damages, even if be had sustained no actual damage thereby.</p> <p>A nonsuit was entered, subject to the opinion of the Court upon these facts.</p> <p>If the Court should be of opinion, that the plaintiff was entitled to recover, the nonsuit was to be taken off, and the defendant was to be defaulted, and judgment rendered for such sum as the Court should order, or as should be reported by an assessor.</p>

Covenant broken. The parties stated a case.. It appeared that on March 7, 1832, the defendant was the owner of a parcel of land lying upon the Little Blackstone river, with a right to abut a dam across the river upon the land of Amasa Henshaw; that the defendant, in 1831, had . erected a dam upon the premises, and raised the water to the height of ten feet, but that that dam had been carried away by a freshet; and that he had made a contract with certain individuals, for the…

<p>Where, prior to the passage of St. 1832, c. 163, regulating the State Lunatic Hospital, a person was committed to the house of correction in the town of W, in pursuance of St. 1797, c. 62, § 3, by virtue of the warrant of two justices of the peace who had adjudged him to be so furiously mad as to render it dangerous to the safety of the community for him to go at large, and such person was removed to, and was actually in the State Lunatic Hospital previously to the passage of St. 1834, c. 150, providing general regulations for the administration of the affairs of the hospital, it was held, that no action could be maintained against the town of W by the treasurer of the hospital, to recover the expenses incurred therein, for the support of such lunatic, the St. 1797, c. 62, § 3, which provides that lunatics committed to the house of correction in pursuance thereof shall be kept at their own expense, if they have estate, otherwise at the charge of the persons or towns, liable for their maintenance, in case they had not been committed, and the St. 1832, c. 163, § 4, which provides, that the trustees of such hospital shall have the same powers which the keepers of gaols and houses of correction, possessed against delinquent towns or individuals, in regard to expenses incurred by those committed to the hospital, having been repealed by St. 1834, c. 150.</p>

Petition for certiorari. The petition set forth, that at a justice’s court held before Charles G. Prentiss, Esq., the petitioner was summoned to answer to the complaint of Albert C. Williams, clerk of a company of infantry commanded by Jeremiah Stone, lieutenant : wherein Williams complained,' that the petitioner, being duly enrolled in that company and being duly notified to meet with them on September 25, 1833, was guilty of “ quitting said company without leave of an…

<p>It seems, that a statute will in no case be deemed absolutely void.</p> <p>Where an act of the legislature is alleged to be void, on the ground that it exceeds the limits of legislative power and thus injuriously affects private rights, it is to be deemed void only in respect to those particulars, and as against those persons,, whose rights are thus affected.</p> <p>If it appear that a legislative act may or may not be valid according to circumstances, the existence of those circumstances which will give it validity will be presumed, until the contrary is shown. Thus, if an act appears on the face of it to be an encvoachmen on the rights of any persons, but would nevertheless be valid if passed with the ;onsent of those persons, it will be presumed, that such consent was given; and a stranger will have no right to contest its validity upon the ground that such consent was not given.</p> <p>Ata meeting of the proprietors of common and undivided lands in Cambridge, in 1769, it wis voted, that all the common lands fronting the college, should oe granted to the town of Cambridge, to be used as a training-field, to lie undivided and to remain for that use forever, provided, that if the town should dispose of, grant or appropriate the same or any part thereof to any other use, the whole of the premises should revert to the proprietors. By St, 1830, c, 6, certain inhabitants of Cambridge were empowered, at their own expense and under the direction of two commissioners to be appointed by the executive, to enclose such part or parts of these lands as the commisiioners should determine, and to level the surface, plant eves anil lay out walks within the enclosure, with the approbation of the selectmen of Cambridge, leaving suitable avenues for foot passengers to enter or pass over it; the commissioners were authorized to make such alterations with respect to the direction of the roads by which the lands were traversed, as they should see fit; the enclosure was to be forever appropriated to public use only, as a public park, promenade, and place for military parade; and provision was made for the punishment of any person who should injure or destroy the fences, &c. In 1832, after the enclosure, in pursuance of St. 1830, c. 6, of a portion of the lands, over which a road had previously passed, a petition w'as presented to the county commissioners, by certain individuals, praying that a new highway might be laid out across the land, enclosed. The county commissioners having adjudged, that by reason of the St. 1830, c. 6, and the proceedings under it, they had no power to lay out a high, way across the enclosure, nor jurisdiction over the same, the petitioners made application to this Court for a mandamus requiring the county commissioners to take jurisdiction of their petition, and to determine whether such new highway was of common convenience and necessity. Upon the hearing of such application, it was objected, that the St. 1830, c. 6, was unconstitutional and void, because the Commonwealth did not own the soil, and the legislature had no authority to appropriate the land to public use, without the express consent of the owners. It was held, that the consent of the owners in such case might be given subsequently as well as previously, and that it might be presumed as well as proved by some positive act; but that at any rate, such objection could not be taken by the petitioners, who were strangers claiming no interest in the soil.</p> <p>The St. 1830, c. 6, was held not to be unconstitutional, although there was no distinct adjudication by the legislature that the enclosure and improvement of the lands were of common convenience and necessity.</p> <p>Nor is it unconstitutional on the ground, that no provision is made therein for compensation for damage done to private property ; for even if this were a valid objection to a statute affecting private property, it could have no force here, because the act contemplates no property not already appropriated to public use.</p> <p>Nor on the ground, that no provision is made for the maintenance and repair of the roads laid out by the special commissioners around the enclosures, in lieu of (hose by which the land was originally traversed ; for the roads so laid out being lawful highways, the town thereupon became liable to the duty of supporting them as such.</p> <p>Nor on the ground, that no provision is made for the preservation and support of the improvements when made.</p> <p>Nor on the ground, that the section of the act providing that the enclosure should be forever appropriated to public use only as a public park and place for military parade, encroaches upon the right of eminent domain inherent in the sovereign power of the State ; for this right is not superseded by the act, the word forever in this connexion signifying, until the provision should be altered by competent authority.</p> <p>The term undivided, applied to this land in the vote of the proprietors, does not mean that the land shall not be divided in parcels, but that it shall not be set off in severalty to individual proprietors.</p> <p>The enclosure of the land in three distinct parcels and the other improvements and appropriations contemplated by the St. 1830, c. 6, were held not to be inconsistent with that clause in the grant of the proprietors, which provides that the land should be used as a training-field and should lie undivided, and that if it should be appropriated by the town to any other use, it should revert to the proprietors ; and consequently, the consent of the town to the statute, and to the improvements made bv virtue of it. could not onerate a forfeiture of the lan'l bv the town</p> <p>IVhcrerer tlie legislature lias annexed the character of public use to any property, and such public use would be destroyed or interrupted by the laying out of a highway, the power of the county commissioners to lay out such highway is superseded. Thus, the St. 1830, c. 6, authorizing "'the enclosing of a part of Cambridge common,” superseded the power of the county commissioners to lay out a highway across such enclosure.</p> <p>Whether, where a petition for a new highway is presented to the county commissioners by certain private individuals, and the county commissioners order that no further proceedings shall be had upon the petition, the petitioners merely as such are warranted in applying to this Court for a writ of mandamus to the county commissioners, qucere.</p>

<p>The St. 43 Eliz. c. 4, relating to charitable gifts and uses, forms, in principle and substance, a part of the law of this Commonwealth.</p> <p>A testator devised as follows : e< I give and bequeath all the residue of ray estate, both real and personal, of whatever name or nature soever, or wherever said property may be found, to the cause of Christ, for the benefit and promotion of true evangelical piety and religion. And I do order and direct my executor hereafter named and appointed, to collect all the above last specified property, as soon as can be done consistently without sacrificing too much by forcing the sale thereof in an improper manner, not however to exceed the term of five years, and pay over the same unto T, S, P, and R, placing full confidence in their piety, judgment and integrity, immediately to be by them sacredly appropriated to the cause of religion as above stated, to be distributed in such divisions and to such societies and religious charitable purposes, as they may think fit and proper.” It was held, that power was given thereby to the executor to sell the real estate, in order to carry into effect the other purposes of the devise ; and that by virtue of St at. 43 Eliz. c. 4, the devise was not void for uncertainty, either as to the persons who were to take the legal interest in the devise, or those who were ultimately to receive the benefit of it.</p>

An indictment for a capital arson was found against the nefendant, in the Court of Common Pleas, and transmitted to this Court; and now upon his arraignment, before a full bench, his counsel objected that the indictment was defective, because it did not state the name of the owner of the dwellinghouse set on fire.

<p>The St, 1832, c, 150, entitled, “ an act in addition to an act authorizing the town of Charlestown to establish a board of health,” authorizes the selectmen of Charles* town to appoint and locate the places where the dead may be buried in that town, to establish the police of the burying-grounds, to make regulations for funerals and the interment of the dead, to appoint all necessary officers to carry the same into effect, and to prescribe penalties for the violation of such regulations. The fourth section of a by-law made by the selectmen ordained, that no person should, without leave in writing signed by a majority of the selectmen, bring into the town any dead body, or convey through any of the streets any dead body so brought into the town ; or bury any dead body so brought into the town, on any part of his own premises or elsewhere within the town. It was held, fnat the first part of this section of the by-law being unauthorized by the statute and void, (which was conceded,) the whole of the section was consequently void.</p> <p>Held also, that the latter part of the section was not a regulation but a prohibition, and therefore void; and if it were not a prohibition, yet that except when applied to a populous part of the town, it was unreasonable and on that account void.</p> <p>The third section of the by-law ordains, that no person shall exercise the office of funeral undertaker within the limits of the town, unless he shall have been first appointed and licensed by the selectmen. It was held, that this section did not apply to a person who without a license buried dead bodies brought into the town contrary to the fourth section; or if it was intended more effectually to enforce the prohibition in the fourth section and was to be taken in connexion with that section, then it was void.</p>

<p>In an action on the case, under St, 1786, c, 81, against the town of Chelmsford to recover double damages for injuries occasioned by a defect in a highway, the declaration averred, that the plaintiff, on August 27, 1831, “ at Chelmsford, was travelling on a highway in Chelmsford, which highway the town are, by Jaw, bound to keep in repair, on a part of the highway leading from the dwellinghouse of J. S. to the stone guidepost near the Middlesex Turnpike in Chelmsford that the highway within such limits was defective and in want of repair ; that the plaintiff, “ being so travelling as aforesaid at the time and place aforesaid,31 sustained the injuries complained of, in consequence of such defect and want of repair. After a verdict for the plaintiff, it was held, that the declaration was sufficient, although it did not state that the town was bound by law to maintain and repaii the highway where the accident happened, at the time of such injuries, and although there was no direct averment, that the defective part of the road, where the accident happened, was within the town of Chelmsford, and although there was no allegation, that the defect and want of necessary repair were against the form of the statute.</p>

Case for a libel. The declaration .alleges, that whereas the said Ellis is, and from his youth up hitherto has been, a good, true, honest, and just citizen of this Commonwealth, &c. ; and whereas, at the time of committing the several grievances by the said Kimball as hereinafter mentioned, ana long before, said Ellis was, and still is, a lieutenant colonel of the fourth regiment in the first brigade in the third division of the militia of this Commonwealth, and as such…

This was a writ of entry, dated July 19, 1832, to recover an undivided fourteenth part of a tract of land in Lowell, containing about eighteen acres. The demandant counted on his own seisin within thirty years. The cause was tried before Wilde J., upon the general issue. The demandant proved that Thomas Fletcher died seised of the tract, in 1771, leaving a widow and two daughters, ■Rebecca and Joanna.

<p>The St. 1826, c. 109, [Revised St. c. 81, § 20,] provides, that, in suits in equity pending in this Court, any justice thereof may make all interlocutory orders and decrees which may be necessary to the full hearing and final determination of such suits ; and under this provision it was held, that an order directing the trial of a material fact, by jury, is an interlocutory order ; and consequently, that where the only material question in a suit in equity was of the sanity of the plaintiff, it was competent for the Court, when holden by a single judge, to direct an issue to be framed and tried by jury, for the purpose of determining this question, before a general hearing.</p>

Action on the case. The declaration alleged, that the plaintiff, on July 18, 1831, sued out a writ for the purpose of recovering the sum of $300 with interest, due to him from Amos Sanderson, junior; that on the 30th day of the same July, Moses Pritchard, a deputy sheriff, by virtue of such writ, attached certain cattle, hay, and other articles, of the value of $500 ; that the plaintiff prosecuted his suit to judgment and delivered his execution to Pritchard within thirty…

Debt on bond brought by the plaintiff as administrator of Ephraim Nutting the obligee. The bond was dated May 13, 1807, and was executed by the defendant as principal, with two sureties.

Bill in equity to redeem a mortgage. The bill set forth, that Richard Messiter, the deceased husband of the plaintiff, on September 21, 1830, being seised in fee of a certain parcel of land in Lowell, mortgaged the premises to Jonathan C. Morrill, to secure the payment of a promissory note for the sum of $300, with interest, in one year from that time ; that on October 5th in the same year, he again mortgaged the premises to William Whitney, to secure the payment of another…

This was an indictment for a capital burglary and a capital arson, against John R. Buzzell and eleven others, for breaking and entering and burning the convent of the Ursuline community at Charlestown. The convent was broken into and burnt by a mob, on the night of the 11th of August, 1834. The case was tried before Shaw, Chief Justice, and Putnam and Morion, Justices.

<p>Writ of entry, dated May 10, 1833, for one undivided fourteenth part of a tract of land in Lowell. The demandant counted upon his own seisin within thirty years.</p> <p>The defendants pleaded the general issue.</p> <p>At the trial, before Putnam J., it appeared, that Thomas Fletcher, who died seised of the demanded premises on August 6, 1771, by his will, devised all his real estate to his two daughters, Rebecca and Joanna, with cross remainders, reserving the use of one third part thereof for his widow, so long as she should remain such. Rebecca, the eldest daughter, on January 9, 1773, married Jacob Kittredge, who died in 1813. Joanna, the youngest daughter, on February 29, 1777, married Benjamin Melvin, who immediately entered into the possession of the land. They had seven children, of whom the demandant was one. Benjamin Melvin, the father, died in April 1830, and his wife died in September 1826. The demandant entered upon the demanded premises on July 12, 1832, claiming as heir to his mother.</p> <p>The tenants produced an office copy of a deed from Jacob Kittredge and his wife to Benjamin Melvin, the father, dated April 27, 1782, whereby, for the consideration of £300, they conveyed to him an undivided moiety of a farm in Lowell, formerly owned by Thomas Fletcher, which included the demanded premises. They also produced an office copy of a deed of mortgage of the same date, from Melvin, the father, and his wife, to Jacob Kittredge, conveying to him a certain portion of this farm, including, as the tenants contended, the demanded premises, to secure the payment of £300 in five years.</p> <p>The tenants proved, that in April 1796, Kittredge took possession of the demanded premises and ejected Melvin, the father, and his wife ; and there was no evidence of any occupation of the demanded premises, or of any claim thereto by Melvin, the father, or any of his family, from 1796 until the entry of the demandant in 1832, although they lived in the immediate neighbourhood.</p> <p>The tenants also proved a title in themselves to the land conveyed in mortgage by Melvin, the father, and his wife, to Kittredge, by virtue of several mesne conveyances from the heirs of Kittredge and others.</p> <p>The tenants then contended, that even if the demanded premises were not embraced in the deed of mortgage, yet that the entry of Kittredge in 1796 and the ouster of Melvin, the father, and his wife, operated as a disseisin of them, and that by the uninterrupted possession of the tenants and those under whom they claim, for more than thirty years before the entry of the demandant, his right of entry was barred by St. 1786, c. 13, § 4, which limits the right of any person under no disability, to make an entry into lands, &c., to twenty years next after his right or title first descended or accrued, with a saving to femes covert, &c. of a right to make such entry at any time within ten years after the expiration of said twenty years aforesaid, and not afterwards.</p> <p>But the judge instructed the jury, that the wife of Melvin, the father, was not disseised during her coverture, and that the demandant’s right of entry would not be barred by an undisturbed possession of the demanded premises by the tenants for more than thirty years, because such possession would not be adverse to the wife during the coverture ; and that the only question for them to consider was, whether the demanded premises were intended by the parties to be conveyed by the deed of mortgage.</p> <p>The jury found a verdict for the demandant.</p> <p>If the instructions to the jury were incorrect, a new trial was to be granted.</p>

<p>Where a verdict was rendered in this Court in favor of a plaintiff in an action against a town, under St, 1786, c. 81, for injuries sustained in person and property in consequence of a defect in a highway, and a motion was made by the defendants for a new trial, and after the commencement of the ensuing law term of the Comt, but before any hearing was had upon such motion, the plaintiff died, the Court refused to dismiss the action, and upon overruling the motion, ordered judgment to be entered up as of a day of such term when the plaintiff was in full life.</p> <p>By St. 1830, c. 4, establishing the Boston and Lowell Rail-Road Corporation, it is provided, (§ 11,) that if the rail-road should cross any highway, it should be so constructed as not to impede the safe and convenient use. of such highway. Where an excavation was made by such corporation in a highway for the purpose of constructing the rail-road across it, and an injury was sustained by a person travelling on the highway, in the evening, in consequence of being thrown into the excavation, it was held, that the town in which such highway was situated was liable to an action for such injury, under St. 1786, c. 81, although the town had given notice to the superintendent of the work on the rail-road, that a barrier must be put up for the protection of travellers on the highway and such superintendent had promised that this should be done.</p>

<p>This was an indictment against the defendant for obstructing a turnpike road in Pawtucket, by continuing within the limits of such road certain buildings which had been previously erected therein.</p> <p>At the trial, before Morion J., it was proved, on the part of the Commonwealth, that the road was laid out in 1804 by a committee appointed by the legislature for that purpose.</p> <p>The defendant offered to prove, that that portion of the road which was covered by the buildings, was not within the travelled part thereof; and that a hank six ir seven feet in height, had been removed for the purpose of placing the buildings where they stood. This evidence was rejected by the judge as inadmissible</p> <p>A verdict was returned against the defendant by consent.</p> <p>If the evidence was rightly rejected, the verdict was to stand ; otherwise the verdict was to be set aside, and a new trial granted.</p> <p>It was also moved, in arrest of judgment, that an indictaient would not lie against any person for obstructing a turnpike road, it not being a public highway.</p>

<p>Trespass quare clausum. The trial was before Putnam J. on the general issue and on an issue upon the soil and freehold.</p> <p>The plaintiff proved a possessory title in himself, which was admitted to be sufficient as against a stranger.</p> <p>The defendant claimed to have acquired the title which escheated to the Commonwealth upon the decease of William Trotter, who died seised of the estate in question, in 1820, without heirs and intestate.</p> <p>It appeared that the widow of Trotter afterwards married William Barron ; that they petitioned the legislature to release to her the title of the Commonwealth to the estate ; that this was done, or intended to be done, by a resolve of the legislature, passed February 14, 1828 ; that in June 1828, Barron and his wife gave a power of attorney to the defendant to take possession for them, and that the defendant entered in pursuance thereof; that on February 3, 1829, they conveyed the estate to the defendant; and that after the entry by the defendant, the plaintiff entered and took possession of the estate.</p> <p>It was contended by the defendant, that the Commonwealth became seised by the operation of law, upon the escheating of the estate, and so, that the title passed from the Commonwealth to the defendant.</p> <p>The plaintiff contended, that an inquest of office was necessary, in order to give seisin to the Commonwealth ; that the Commonwealth could not convey the title before such inquest was had ; and that the defendant was, under these circumstances, to be regarded as a stranger.</p> <p>A verdict was taken, by consent, for the plaintiff, subject to the opinion of the whole Court. If they should be of opinion that an inquest of office was necessary in order to cause thf Commonwealth to be seised, or that the defendant had not acquired a title to the estate by virtue of the resolve of thf legislature, judgment was to be rendered on the verdict otherwise the plaintiff was to become nonsuit.</p>

This was covenant broken, for not repairing a highway, and a wall by which the side of the road was supported.

Trespass quare clausum. The defendant pleaded soil and freehold in himself, in that part of the close described in the declaration, in which the trespass is alleged to have been committed ; and upon this plea issue was joined.

<p>This was an action of the case, upon St. 1786, c. 81, § 7, (see Revised Stat. c. 25, § 21, 22,) to recover doub e damages for an injury sustained by the plaintiffs, in having their horse’s leg broken by reason of a highway in North Bridgewater being suffered to be incumbered by several large stones placed and left in it.</p> <p>On the trial, before Morton J., upon the general issue, it was proved that the plaintiff’s horse was harnessed in a wagon in the usual way ; that he was driven about a mile in a highway in North Bridgewater, when by accident the bolt by which the whippletree was fastened to the cross-piece came out and the whippletree fell suddenly upon the horse’s legs; whereupon he was frightened, and broke from the harness, and ran with great violence upon large loose stones which lay in the road, and broke his leg. The surveyor of highways and other inhabitants of the town knew of the stones, and that they had been in the same position twenty years; and the surveyor testified that they had not been complained of until a few days before the trial, and that he considered them no injury to the road. The highway was thirty-four feet m width, and was fenced with stone wall on both sides. The stones were seven feet and eight inches from the cart rut The south side of them lay five feet and eight inches from the wall. They were three feet over, and covered with briars. The width of the travelled path was fourteen feet, within and exclusive of the gutters ; which at this place were about one foot deep. The horse ran twenty-seven rods after the whippletree had fallen.</p> <p>The plaintiffs consented that a nonsuit should be entered, the defendants agreeing, that if upon the foregoing facts the action was- maintainable, the nonsuit should be taken off arid the defendants defaulted.</p>

<p>A testator devised as follows : “ I order that S. J. shall have a decent support out of my estate, so long as she remains at my house where she now is. I give and bequeath unto my two sons, W. P. and C. A. P., all my lands and buildings, and ° also my right in a saw-mill, and my right in a pew in the meetinghouse in B., and also all my farming tools, to be divided equally between them, if they should live to become of age, otherwise it is my will it should go to one of them.” It was held, that the two sons took a vested estate in fee, determinable, as to the one who might die first, upon the contingency of his dying under twenty-one years of age ; that the heirs of the eldest son, who had died after he became of age, but during the minority of his brother, who had since arrived at full age, were entitled to one half of the real estate so devised ; and that a division of the estate so devised, made by virtue of a warrant from the Probate Court, during the minority of the youngest son, the eldest being of full age, was valid.</p>

Debt upon a replevin bond. By a case stated it appeared, that the defendants were to be defaulted and to be heard in equity. The only question for the decision of the Court was, what should be the amount of damages to be assessed. The condition of the bond was, that the defendants should restore to the plaintiffs 13,500 gallons of sperm oil, and pay all damages and costs, in case such should be the final judgment of the Court.

<p>By St. 1819, c. 147, by which a part of the town of Pembroke was incorporated as a new town by the name of Hanson, it is enacted, that t( the poor now supported by the town of Pembroke, and all such who may hereafter be returned for support in virtue of having acquired a settlement in said town, shall be supported in the town of Pembroke or Hanson, as they shall have acquired their settlement within the territorial limits of either town as described in this act.” It was held, that this provision did not apply to a person not then a pauper, who had then acquired a settlement in the territory set off as the town of Pembroke, but whose dwelling-place was within the territory set off as the town of Hanson, but that such person, upon the incorporation of Hanson, acquired a settlement in that town by virtue of die general statute of 1793, c. 34.</p>

Assumpsit for services rendered and necessaries furnished to Sarah Bent, the defendant’s intestate. The parties stated a case. The plaintiff was the daughter of William and Sarah Bent.

Freeman having a claim against the estate of Benjamin Ward, deceased, intestate, which had been represented to be insolvent, presented it to the administrators, and likewise to the commissioners of insolvency on the estate for allowance, but it was disallowed by the commissioners.

<p>Where a statute required that a bond should be given, to be approved by the judge of probate, but was silent on the subject of sureties, it was held, that a bond so approved, although not signed by a surety, was sufficient.</p>

<p>Under St, 1817, c, 190, § 7, which requires that a bond for the prosecution of an appeal from the Court of Probate shall be M given and filed in the probate office by the appellant,” it was held, that a bond executed and filed by a stranger, conditioned that the appellant should prosecute, was insufficient. ,</p>

<p>A writ of habeas corpus may properly be issued against a wife, on the application of the husband, for the purpose of obtaining the custody of their child»</p> <p>Where, in the case of an unauthorized separation of a wife and child from her husband, without any apparent justifiable cause, it was not clearly proved, that the husband was unfit to have custody of the child, the Court ordered it to be restored to him.</p>

<p>Trespass against the defendants for taking, carrying away, and converting to their own use, a title deed of certain land, which had been executed and delivered by them to the plaintiffs. The defendants pleaded severally not guilty. The trial was before Wilde J.</p> <p>It appeared, that the land claimed by the plaintiffs was originally owned by Caleb Howard, by whom it was valued at the sum of fifty-seven dollars ; that before his decease he had proposed to convey it either to the plaintiffs, or to the proprietors of the meetinghouse where the plaintiffs attended public worship, for the sum of seven dollars ; making a donation of the residue of the sum at which it was valued ; that the land was devised to the defendants, who were the children of Caleb Howard ; and that it was their wish to convey it according to the intentions of their father.</p> <p>At a meeting of the society on April 16, 1831, it was voted to direct the prudential committee, to make a settlement with the heirs of Caleb Howard, <6 with regard to the donation of a piece of land, made by him to the society, and draw an order on the treasurer in favor of said heirs for seven dollars, to pay the balance for said piece of land, which sum is over and above the amount that was intended to be given as a donation.”</p> <p>John Crafts, who was a member of the prudential comm» tee, testified, that, at the request of Perez Crocker, who had charge of the finances both of the society and of the proprietors of the meetinghouse, he consented to attend to the procuring a conveyance of the land, Crocker saying that he would pay, or had pgid, the seven dollars ; that on June 25, 1831, he carried the deed in question to the defendants and requested them to execute it; that the defendants, at first, declined doing so, on the ground, that it conveyed the land to the society, instead of the proprietors of the meetinghouse ; but that on his urging them, they-executed it ;=that the witness took the deed, and kept it, but that it was out of his hands once or twice, and that on one occasion, Newton Shaw received it from him for the purpose of enabling him to place a fence in pursuance of certain votes of the society, and did not return it for several months afterwards.</p> <p>On July 18, 1831, a meeting of the society was held, in pursuance of a warrant which contained the following article • “ To see if the society will choose a committee and vest them with authority to exchange a piece of their land, that they had of the heirs of Caleb Howard, deceased, for a piece of land that the centre school district now owns,” &c. ; and it was voted at such meeting, that a committee then chosen should “ be instructed to confer with the committee of the school district, and ascertain on what conditions an exchange of lots of land may be made, and report their doings, at the adjournment of this meeting.”</p> <p>Crafts further testified, that in the summer of 1832, Thomas J. Howard, one of the defendants, requested him to deliver up the deed in question, stating that he had objected to it at the time it was signed ; that the witness thought, that as the defendants had objected to the deed at the time when it was executed, there was a propriety in giving it up to them, and that, upon that ground, he did give it up ; and that about the jame time he and the defendants left the society, but whether this was before or after the deed was given up, he could not say.</p> <p>There was evidence, that Crafts on one occasion had the deed at a meeting of the society, and that it was read there by several persons.</p> <p>On August 30, 1832, the defendants conveyed the land to Howard Tilden. Subsequently the deed in question was demanded of Crafts, and also of the defendants, by a committee duly chosen by the society for the purpose ; but it was not delivered up.</p> <p>It was admitted on the argument, that the deed in question was read at the trial, and appeared to be in no part defaced or cancelled.</p> <p>If the Court should be of opinion, that the action could be maintained, both or either of the defendants, was to be defaulted, as the Court should determine, and the damages were to be assessed at the sum of $70, the agreed value of the land ; otherwise the plaintiffs were to become nonsuit.</p>

<p>This was a prosecution, commenced in the Police Court of New Bedford, on the following complaint addressed to the justice of that court:</p> <p>Thomas Nickerson, of New Bedford, &c., “ complains, and on oath informs the said justice, that he has probable cause to suspect that George B. Phillips, on April 28, 1834, at New Bedford, did presume to be a retailer and seller of wine, brandy, rum,” &c., “ in a less quantity than ten gallons, and that delivered and carried away all at one time, and then and there did sell to one Hattell Killey, to wit, one pint of rum, without being first duly licensed therefor according to law, against the peace,” &c., “ and contrary to thé form of the statute,” &c. “ Wherefore the said Thomas Nickerson prays, that he, the said George B. Phillips, may be apprehended and held to answer to this complaint, and further dealt with, relative to the same, according to law.” This complaint was sworn to before the justice of the Police Court. Judgment was rendered in that court, that the defendant was guilty of the charge ; whereupon he appealed to the Court of Common Pleas.</p> <p>At the September term of the Court of Common Pleas, in 1834, Williams J. presiding, the defendant moved, that the complaint and process against him might be quashed, and assigned for one cause, that the complaint alleged no offence directly against him, and that the judgment of the justice from which he appealed, was inconclusive, and only found the defendant guilty of being suspected of a crime.</p> <p>This motion was overruled, and the defendant thereupon excepted.</p>

Petition for partition. The petitioner set forth, that he was seised in his demesne as of fee, of an undivided moiety of “ one fourth of an acre of land on which a saw-mill formerly stood, on a stream of water called by the name of Fall Brook, with the lands on which the log-ways of said mill were laid, together with the dam across said stream, and the privilege of the water thereof, and the appurtenances to said lands and tenements belonging, which said lands and tenements…

<p>After a line for a town way had been run across the plaintiff’s land by the selectmen, one of them informed him, that they were laying out a road across his land and pointed out to him its direction; but a new line was run back on the plaintiff’s land, which completed the survey. The plaintiff was present at the town meeting when the proceedings of the selectmen were approved, and objected that he was not allowed a sufficient amount of damages. It was held, that even if it was necessary that notice should be given to the plaintiff, by the selectmen, before fixing on any location, or making their report to the town, the notice in the present case was sufficient; and that, in regard to the proceedings of the town, as the plaintiff was present at the town meeting, without objecting that he had not received sufficient notice, this was conclusive evidence that adequate notice,had been given to nim.</p> <p>Where a sum of money was subscribed by certain individuals for the purpose of defraying a portion of the cost of a town way, and this fact was communicated to the inhabitants of the town before the town way was approved, it was Acid, that the vote of approval was not rendered invalid thereby.</p>

<p>In November 1822, a pauper who was settled in Hanover, purchased certain real estate in Scituate, removed thither, and remained in the actual occupation of such real estate until 1827. In August 1825, lie conveyed it in fee, and at the same time received from the grantee an instrument, not under seal, but signed by the grantee, which set forth, that the grantee had paid to the pauper the sum of $355*57, and had taken a deed of the land, and that the grantee had agreed to let tiie pauper “ have the improvement, or sell, provided he should pay the above sum of money in three years with interest.” The sum mentioned in this instrument w s not the full value of the real estate. It seems, that the transaction of August 1825, was not equivalent to a mortgage; but it was held, that the instrument given by the grantee to the pauper, operated as a declaration of trust by the grantee; and therefore that the conveyance by the pauper in August 1825, did not prevent his acquiring a settlement in Scituate under St. 1821, c. 94, § 2, which provides, that any person having an estate of inheritance or freehold in any town, and living os tiie same three years successively, shall thereby gain a settlement in such town</p>

<p>An action was brought upon the following writing, which was signed by both parties; tf Hiis certifies, that I have sold to ” the plaintiff (S about five acres of land, more or less, being the same which I bought of him, in consideration of the same sum which I paid him for the same, with interest from the time I purchased the same, till I paid for it (supposed about six months), with the expense of the deed, also the taxes for one year.5’ It was held, that this was an executory contract for the sale of the land.</p> <p>In the same action, it was keld> that the writing was not void under the St, 1783, c. 37, § 2, providing that no action should be maintained upon any contract or sale of land, unless the agreement " or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith,” on the ground that the price to be paid for the land was not set forth therein with sufficient certainty; nor on the ground of uncertainty as to the timé when the contract was to be executed, for as no time was limited in the writing it must be executed within a reasonable time; nor on the ground that it was uncertain whether the fee simple or a less estate was to be conveyed.</p> <p>In an action on a contract in writing, which does not express the time when it is to be performed, and which consequently is to be performed within a reasonable time, it seems that a simultaneous, express, verbal agreement that it shall be performed on a particular day, is not admissible in evidence; unless perhaps it may be admissible in connexion with other facts, as bearing on the question of reasonable time Per Shaw C, J.</p>

Debt on a probate bond, given by William and Benjamin Loud, (with sureties,) conditioned for the faithful performance of their duties as executors of the last will of William Loud, deceased. An indorsement on the writ states, that u me action is brought for the benefit of Daniel Loud, interested herein.” The jury having returned a verdict for the defendants, the plaintiff moved that judgment be rendered for the plaintiff notwithstanding the verdict.

Trespass quare clausum fregit, for cutting trees on land m Needham, of which the plaintiffs claimed to be seised in right of the wife. The defendant pleaded the general issue. The question was upon the title of the plaintiffs.

<p>This was an action on the case for the diversion of water from the plaintiffs’ mills, situated on Steep brook, in Canton, above its junction with Mashapog brook. The defendants owned mills on Mashapog brook below the junction of the two streams.</p> <p>At the.trial, before Shaw C. J., it appeared, that at some former time, a canal had been cut from Mashapog brook, through a piece of land called the Clay meadows, to Steep brook above the plaintiffs’ mills ; that a loose dam, consisting formerly of a log only, or a log and gravel, but recently of plank, was placed across Mashapog brook below the canal, so as to turn some of the water of the brook through the canal to the plaintiffs’ mills ; and that on September 3, 1833, the defendants removed this dam and filled up the canal, so as to turn the water down the natural channel of Mashapog brook.</p> <p>The plaintiffs introduced several witnesses, who testified, that from 1792 to the time of the act complained of, all or nearly all the water of Mashapog brook had been turned through the canal to the mills of the plaintiffs, by means of the dam; but that it was understood by those who then owned those mills, that the owners of the Clay meadows had a right, for six weeks in each year, to turn the water off the meadows down the natural channel of Mashapog brook, in order that the meadow owners might more conveniently get their hay and dig clay. It did not appear, that the water was turned down the natural channel of Mashapog brook for so long a time as six weeks in each year; but that this was done at such times as the meadow owners chose to do it in each year, from June to October inclusive. Nor did it appear, that the former owners of the mills of the defendants had any connexion with the meadow owners. The canal was occasionally cleared out, and the dam kept in repair, by the owners of the plaintiffs’ mills.</p> <p>The defendants introduced several witnesses, who testified, that at different times and for many years between 1813 and the time when the act complained of was committed, the owner of a mill on Mashapog brook below the canal and dam, but above the junction of the two streams, had at his pleasure and under a claim of right, removed the dam when he wanted more water, and that the dam was restored, from time to time, by the then owner of the plaintiffs’ mills.</p> <p>The owners of Clay meadows, and other persons who had worked in them, testified, that such owners had always turned the water off the meadows for the purpose of getting their hay and digging clay more conveniently, at such times in each year as they had thought fit; that they never knew of any restriction on their right as to time ; that they had done this in different months from June to October inclusive, when they had chosen to get their hay or dig clay ; but they did not state that for so much as six weeks in each year had the water been turned off the meadows, nor for how long a time in each year this had been done. There was also evidence tending to prove, that the water had at some times been clandestinely turned down the natural channel from the meadows.</p> <p>It was also testified, that in consequence of the water being turned over the meadows, it came more irregularly and inconveniently to the mills of the defendants, and that a consid erable portion of it, by being absorbed and evaporated, was lost to the defendants ; and that in order tc prevent this loss, when the water in the stream was low, they had directed their agents to turn the water down the natural channel.</p> <p>' To rebut the presumption of a grant of the right to divert the water into the canal, the defendants produced a deed Detween Elijah Crane, under whom the plaintiffs claim, and Lemuel Gay, Jesse Peirce, and three others, who were meadow owners, by which it was agreed that a dam should ue built on Mashapog brook and that a ditch should be dug, so as to turn the water which ran down that brook across the Clay meadow, into Steep brook, above Crane’s mills. This deed was dated in October 1792, but it was found in the possession of a son of Gay so late as 1830, executed by Peirce and Gay only, and it was then lent by Gay’s son and soon afterwards it was returned to him, having in the mean time oeen signed by Crane ; but Crane had previously ceased to be the owner of the mills owned by the plaintiffs. It was never executed by the other parties named in it. It was recorded after the action was brought.</p> <p>Another deed was in the case, dated in August, and recorded in September, 1799, from Jesse Peirce to Thomas Shepard, of certain land, “ reserving to Lemuel Gay and Elijah Crane the right of turning the water out of Mashapog brook in the above granted premises, in the same place where it now runs, agreeable to the covenant and agreement made by and between the abovenamed Jesse Peirce, Lemuel Gay, and Elijah Crane.” This contract was recorded after the action was brought.</p> <p>The jury were instructed, that an adverse, notorious and undisputed enjoyment of a particular mode of using the water by diversion or obstruction, for the term of twenty years, constituted, in presumption of law, evidence of a valid grant of the privilege of so using it, and that the production of an imperfect or unexecuted agreement for the same privilege, did not rebut or control this presumption.</p> <p>The jury were further instructed, that, if the plaintiffs and those under whom they claim, had enjoyed the use of the water diverted, subject to the reservation m favor of the meadow owners, for a particular portion of time in each year, or for a particular purpose, as to get hay, or dig clay, such reservation did not prevent the acquisition by the plaintiffs of a right to divert the water, as against those who had no interest in the reservation, provided the actual use ana enjoyment of the right of diversion, was substantially general and continuous, but that it operated only as a qualification of the right acquired. It was therefore left to the jury to consider, upon the evidence, whether the use and enjoyment of this easement was substantially a general and continuous use and enjoyment, subject to a well defined and limited exception and reservation ; if it was, such a use and enjoyment were evidence of a right subject to such exception and res ervation. But if it appeared that the exceptions were so extensive, and the use of the privilege by Crane and his successors was so casual and uncertain, that their use and enjoyment could not be deemed general and continuous, then as against the defendants and all other proprietors on the same stream, such a casual and interrupted use would found no claim of right.</p> <p>A verdict was returned in favor of the plaintiffs, which was subject to the opinion of the whole Court upon the questions of law arising from the instructions, and upon the question, whether the evidence was sufficient to support the verdict.</p>

<p>This was replevin against a deputy sheriff, for taking various articles of cotton manufacture, machinery, tools, &c.</p> <p>Plea, that the property was in William Hart, traversing that the property was in the plaintiff. Replication, that the property was in the plaintiff upon which issue was joined.</p> <p>At the trial, before Shaw C. J., the plaintiff, in order to establish his title, offered in evidence an assignment, dated September 28, 1833, from Hart to the plaintiff, in trust to secure him and other creditors of Hart, but executed by none of the other creditors. Evidence was then offered to prove, that the assignment, which purported to be a conveyance of the articles specified in a schedule annexed, was executed and delivered on the day of its date, which was Saturday ; that on the same evening the property was delivered to the plaintiff by Hart, in pursuance of the assignment ; and that in the course of the next day, a schedule was made, and, by the agreement of the parties, annexed to the assignment, before any intervening attachment.</p> <p>The property in question was subsequently attached by the defendant.</p> <p>It was objected, that as the assignment purported to convey the various articles of property named in the schedule an nexed, and as it appeared, that at the time of the execution and delivery of the instrument, and at the time of the delivery of the property, there was no schedule annexed, nothing passed by the assignment.</p> <p>Whereupon it was ruled by the Court, that if the jury should be satisfied, that the assignment was executed and delivered on Saturday, and that, on the evening of that day, the property was formally delivered in pursuance of the assignment, and that on the next day, as soon as it could conveniently be done, a schedule was made, and, by mutual consent, annexed to the assignment as and for the schedule intended therein, no new delivery of the instrument or property being made, and that subsequently and before the attachment was made by the defendant, the assignee, by bis agent, was in possession, claiming under the assignment, and continued so, when the attachment was made, this was a sufficient description to pass the property as contained in the schedule.</p> <p>A verdict was taken for the plaintiff, by consent, subject to the opinion of the Court upon the point of law so ruled.</p>

<p>Upon the hearing of a motion to dismiss a writ on the ground of abuse of process, oral testimony and affidavits are admissible to prove such abuse, although the motion allege, that it appears by inspection of the writ.</p> <p>Where the date and return day of a writ, after it had been delivered to an officer, • and real estate attached upon it, were altered by the attorney for the plaintiff from time to time, before any summons was left with the defendant, in order that the real estate of the defendant might be, from time to time, privately attached in pursuance thereof, the Court refused to set aside the writ, it being proved, that such alterations were in conformity with the course of practice in this State ; and i seems, that the Court will take notice of such practice, exproprto motu.</p> <p>So the Court refused to set aside a writ, where it appeared, that it was originally filled up between different parties, but was not delivered to an officer to be served, and that it was subsequently altered by such attorney, for the purpose of commencing the action then under the consideration of the Court.</p>

<p>Where a libel for a divorce charged, generally, that the respondent had committed various acts of adultery, at divers times, with persons unknown, during a period of eight years, the Court ordered the libeliant to hie a bill of particulars.</p>

This was an appeal from a decree of the judge of probate. The appellee, as one of the executors of Moses Brown, presented a petition to the judge of probate, representing that Philip Towle, deceased, being indebted to the estate of Brown on a promissory note, in about the sum of $800, gave as collateral security therefor, to Brown in his lifetime, a mortgage of certain real estate, which was insufficient to pay such note ; that the estate of Towle was represented to be…

This was a writ of entry, in which the demandants declared ' upon their own seisin within thirty years, and a disseisin by the tenant. Plea, nul disseisin. At the trial, before Putnam J., the demandants, to prove their seisin, offered in evidence the record of the probate partition of the estate of Joshua Ellenwood, which was accepted on August 7, 1805.

<p>Where a will, by which the real estate of the testator was devised, was allowed by the judge of probate, it was held, that a creditor of one of the heirs at law of the testator was not entitled, merely as such, to appeal from the decree.</p> <p>But it is otherwise, if the creditor has attached such real estate, at the time of the deciee and appeal claimed, in an action against such heir.</p>

<p>Where a parish, in which there was no settled minister, leased the parsonage land for 999 years, it was held, that the lease vested in the lessees such rights of entry and possession as the parish had, whatever might be the effect of the lease as against a successor in the ministry.</p> <p>A parish voted, that “B. and others have liberty to erect a seminary house on the parsonage land within what is hereafter described the seminary yard, with liberty to remove the same at pleasure, and that they have the land from the road &c., for a seminary yard.” It was held, that the vote created a tenancy at will; but that if it was equivalent to a license, such license was revocable so far as it remained executory and looked to future acts.</p>

<p>Assumpsit to recover the sum of $285 for the services of the plaintiff as a minister of the gospel, from April 1, 1833, to April 1, 1834.</p> <p>The declaration contained four counts ; of which the three first were general counts. The fourth count alleges, that the defendants, at a parish meeting held on January 15, 1831, voted to unite, and to choose a committee to unite, with the Congregational Society in Plaistow, to engage the plaintiff to be their minister, and also voted to appropriate the income of their parish funds for his support ; that thereupon a committee was chosen, and that this committee, in conjunction with a committee of the Congregational Society, on February 3, 1831, agreed in writing to give the plaintiff annually for his services as minister, the whole income of the parsonage funds belonging to the parish and society, which income they agreed should be $285 annually, and also the free use arid occupancy of their parsonage lands and buildings ; that the proceedings of the committee were ratified by the defendants ; that the plaintiff was duly settled as their minister ; that he has ever since constantly and regularly performed the duties incumbent on him as such minister, and that he still stands in that relation to the defendants ; and that there is due to him the sum of $285, for his salary for the year ending April 1, 1834.</p> <p>The defendants pleaded in abatement, that the promises set forth, if any such were made, were made by the Congrega tional Society in Plaistow, a religious corporation duly organ ized, jointly with the defendants, and that that society is not named in the writ as co-defendants with the North Parish in Haverhill.</p> <p>The question upon the plea in abatement, was submitted to the Court upon an agreed statement of facts ; and in case this plea should not be sustained and the defendants should obtain leave to plead to the action, then the question upon the merits was submitted upon the same statement.</p> <p>By the case stated it appeared, that in 1728 the northerly part of the town of Haverhill was incorporated into a parish, called the North Parish ; and that the meetinghouse was built in the same year. About the same time the town voted, that the income of a certain lot of land should be appropriated to the benefit of the minister of the North Parish. The parish took possession of the land, and held it until it was sold in pursuance of the statute of Massachusetts, of 1822, c. 77.</p> <p>In 1740 the boundary line between Massachusetts and New Hampshire was settled, and a large part of the North Paiish in Haverhill, and which is now the town of Plaistow, together with the parish meetinghouse, fell within the limits of New Hampshire. The inhabitants of Plaistow, and the inhabitants of that part of the territory of the North Parish in Haverhill which remained in Massachusetts, continued to worship as a religious society in the" same meetinghouse, the expenses of procuring ministers, repairing the meetinghouse and parsonage house, &c., being defrayed by them proportionably.</p> <p>In 1753, the part of the parish which fell within the boundary line of Massachusetts was declared by the legislature of Massachusetts to be a parish, by the name of the North Parish in Haverhill. The Congregational Sor ety, all the members of which lived in Plaistow, was incorporated by the legislature of New Hampshire, in 1816.</p> <p>The statute of Massachusetts, of 1822, c. 77, authorizes the sale of the parsonage lands which belonged to the North Parish, and the appointment of trustees for the management of the fund to be raised thereby, and provides that the income of the fund shall be expended in the support of public worship for the benefit of the members of the North Parish and of the Congregational Society in Plaistow, when appropriated to that purpose by a vote of the parish. A corresponding act was passed by the legislature of New Hampshire, on June 16, 1824, to authorize the sale of the parsonage lands belonging to the Congregational Society, to raise a fund for the support of the gospel ministry, and ■ to appoint trustees for the management thereof. This act provides that the income of the fund shall be expended, as well for the use and benefit of the North Parish in Haverhill, who usually worship with the Congregational Society, as for that Society ; provided, however, that the members of the North Parish in Haverhill shall pay their just proportion of all additional sums, over and above the income of the fund, which may be necessary for the support of public worship and other parochial purposes, and that if the parish shall acquire any funds for the support of public worship, the income of the same shall be expended as well for the benefit of the Congregational Society, as of themselves.</p> <p>The'trustees of the North Parish hold a fund amounting to $4750, the income of which in 1830 was $285 ; and the parish is the owner of some parsonage land in New Hampshire. The Congregational Society has no property in Massachusetts. It has a fund amounting to about $50.</p> <p>Ever since the boundary line between the two States was determined, the members of the North Parish and the members of the Congregational Society, have held separate parish meetings. The parish and the society have each chosen committees, from time to time, to settle together the expenses incurred on account of the ministerial funds.</p> <p>The following votes were recorded in the parish records of the North Parish, as having been passed at a meeting of the parish, on January 15, 1831 ; “Voted to unite with the Congregational Society in Plaistow, to engage the Rev. Samuel H. Peckham to be their minister; Voted to appropriate the income of the parish funds for his support; Voted to choose a committee to unite with the Congregational Society in Plaistow to engage the Rev. Samuel H. Peckham to be their minister ; Voted that said committee appropriate the income of the parish funds to Mr. Peckham’s support and . no more.” The committee elected in pursuance of these votes consisted of Jesse Clement and two others.</p> <p>At a meeting of the Congregational Society on January 22, 1831, it was voted to unite with the North Parish to engage the plaintiff to be their minister, and “to give the income of the ministerial fund for bis support,” and Daniel Harriman and two others were chosen a committee for the purpose.</p> <p>On February 3, 1831, the following proposals were made in writing, to the plaintiff, by the two committees : “ We, Jesse Clement, &c., committee of the North Parish in Haverhill, and Daniel Harriman, &c., committee of the Con gregational Society in Plaistow, by virtue of the powers vested in us by the parish and society aforesaid, make the following proposals to the Rev. Samuel H. Peckham, which shall be legally binding on said parish and society in case the said Rev. Samuel H. Peckham shall accept them, and shall be installed as the minister of said parish and society, viz. : We agree to give and promise to pay the said Peckham annually for his services as minister aforesaid, the whole income of the parsonage funds belonging to the said parish and society, which income shall be $285 annually, also the free use and occupancy of their parsonage lands and buildings, and in addition to the above, the said Peckham shall annually receive the sum of $60 from the society in Plaistow. We 'urther agree, that if the said Peckham shall be installed as aforesaid, he shall remain the minister of the said parish and society, and this contract shall continue in full force and be oinding on said parish and society, until the said Peckham shall be dismissed by a mutual ecclesiastical council, which shall be called for that purpose by a majority of the congregational church belonging to the said North Parish and society as one party, and the said Peckham as the other .party.” On February 5, 1831, the plaintiff accepted these proposals, bis answer being addressed “ To the congregational church and society in North Haverhill and Plaistow.” At the close it is directed to the committees of the two congregations and also the committee of the church: At the time when these pro' posáis were made to the plaintiff, only three male n embers of the church were inhabitants of Haverhill. A majority of the church were then and have ever since been inhabitants of Plaistow and members of the Congregational Society in that town. The plaintiff was installed in February 1831.</p> <p>A meeting of the North Parish was held on April 9, 1831, in pursuance of a warrant containing the following, among other articles; “To see if the parish will approve of the doings of the committtee in settling the Rev. Samuel H. Peckham as their minister without the consent of said parish ; To see if the parish will approve of the doings of the' clerk in recording only a part of that motion, which was put as follows, viz : to see if the parish will choose a committee to unite with the Congregational Society of Plaistow to engage the Rev. Samuel H. Peckham to be their minister, time and salary indefinite, but which is to be hereafter agreed upon at this meeting.” The following votes were passed at the meeting : “ Voted to appropriate the income of the parish funds for the support of the Rev. Samuel H. Peckham ; Voted to approve the doings of the committee in settling the Rev. Samuel H. Peckham ; Voted to approve the doings of the clerk in recording the votes at the last parish meeting.”</p> <p>At a parish meeting of the North Parish on April 10, 1833, the following votes were passed ; “ Voted not to appropriate the income of the ministerial fund for the support of the Rev. Samuel H. Peckham ; Voted to dissolve the ministerial connexion, which is represented to exist between the North Parish and the Rev. Samuel H. Peckham.” On April 20, 1833, the plaintiff refused to accede to the votes dissolving his ministerial connexion with the parish, and continued to preach in the meetinghouse. On April 1, 1834, a committee of the parish took possession of the parsonage lands and buildings, which until then had been occupied by the plaintiff. No proposition for an ecclesiastical council was made by the parish. The plaintiff’s salary was paid to him up to April 1, 1833.</p> <p>In 1832 and 1833, committees were appointed by the Congregational Society, to settle accounts with the North Parish. At a meeting of the members of the Congregational Society on March 4, 1834, it was voted to raise the sum of $60, foi the support of the plaintiff for that year ; and at an adjourned meeting on March 11, 1834, it was voted to appropriate tn his support the income of the fund then due to the society.</p> <p>It was agreed by the parties, that if the Court should be of opinion, that the plea in abatement could not be maintained, the defendants might move for leave to plead anew and to the merits ; and that if the Court should adjudge the plea to be good, that the plaintiff might move for leave to aménd.</p>

<p>The plaintiff chartered a ship for a voyage from Robbinstown, Maine, to Trinidad de Cuba, and back to the United States, for which he was to pay the owner 750 dollars at Trinidad, and 750 dollars on her return. A cargo was put on board at Robbinstown by a stranger, the freight for which, amounting to 1003 dollars, was to be paid to the plaintiff at Trinidad. The plaintiff effected insurance of 1000 on freight on board the ship at and from Robbinstown to Trinidad and at and from thence to the United States, and 500 on freight at and from Trinidad to the United States, the freight being valued at 1500 dollars. The ship was lost on her outward passage, so that nothing became due from the plaintiff to the owner. It was held, that the plaintiff had an insurable interest; that it was protected by the terms of the policy; and that if the valuation was fairly made by the parties, with a full knowledge of the material facts, the plaintiff was entitled to recover 1000 dollars, pursuant to the valuation, but if the valuation was evasive and a cover for a wager, it should be set aside and the plaintiff should :fecover according to his actual interest.</p>

<p>Writ of entry. The plaintiff declared upon his own seisin and a disseisin by the defendants. Plea, nul disseisin.</p> <p>At the trial, before Wilde J., it appeared, that the plaintiff claimed under Porter Crosby, who, on July 27, 1831, conveyed to him the demanded premises. The deed was recorded on September 15, 1832.</p> <p>The defendants claimed the demanded premises, under an attachment made, on March 21, 1832, by virtue of a writ dated March 21, 1831, which was issued in their favor against Porter Crosby. Judgment was rendered at the October term 1832, of the Court of Common Pleas, in such action, against Porter Crosby, with his consent; and the execution which was issued thereon, was extended on the demanded premises on October 18, 1832. The plaintiff then offered Henry H. Huggeford, the deputy sheriff by whom such attachment was made, as a witness. The defendants objected to the admission of any parol evidence relative to the service of such writ; but the objection was overruled.</p> <p>The witness thereupon testified, that the writ against Porter Crosby, by virtue of which he attached the demanded premises, was delivered to him by the attorney of the present de fendants, on January 14, 1831, on which day, at the request of the attorney, he- noted an attachment of the demanded premises ; the writ being returnable at the April term 1831, of the Court of Common Pleas ; that this was a secret attachment, and that, in pursuance of the orders of such attorney, he did not leave a summons ; that on the 22d of March next ensuing, the attorney erased the dates and made the writ returnable at the succeeding July term of that Court; that he made similar erasures and alterations in the same writ, from time to time, for the following terms of that Court in October, January, April, and July, but without altering the year of its date, which remained as it stood originally ; that this was done in the absence of Porter Crosby ; that the witness noted attachments of the demanded premises, upon such writ, but without extending the same thereon, for each of such terms, except that he made the return which was indorsed on the writ under date of September 21, 1831, since partially can celled and altered to March 1832 ; that he made a private mark on the writ, as a reference to his book in which the attachments were fully noted ; that the witness charged and received, in every instance, the usual fee for making the service ; that he left a summons for Porter Crosby on June 15, 1832, for the first time, and then returned the writ to the next July term of that Court, and that private attachments made in this way were usual.</p> <p>The case was thereupon taken from the jury by the consent of the parties, and reserved for the consideration of the whole Court, with liberty to the parties to raise such questions and points as they should deem pertinent : and the Court were to order a nonsuit, default, or new trial, as justice might require.</p>

<p>This was assumpsit on a policy of insurance, dated February 11, 1832, by which the defendants insured the sum of $6000 on the brig Pedler, valued at $6000, “ at and from Boston to St. Thomas and a market in the West Indies, and at and from thence to a port of discharge in the United States. Premium per cent; to add one fourth per cent, if to more than one port.” The writ was dated December 8, 1832 ; and the plaintiffs claimed for a total loss.</p> <p>At the trial, before Wilde J., it appeared, that the vessel arrived safely at St. Thomas, although she was rather crank on her passage ; that she there landed about one third, in weight, of her cargo, consisting of cordage and other heavy articles, which were taken on freight for that port; that the master purchased there, at a low price, eighty or ninety barrels of No. 3 mackerel, which could be taken on board in an hour or two, for ballast ; that ballast was necessary to enable the vessel to proceed safely on her voyage ; that vessels at St. Thomas bound to leeward, when in want of ballast, frequently take on board mackerel, as the most convenient and speedy mode of ballasting ; that it would have taken two or three days to procure stone ballast, it being obtained from the beaches ; and that, in point of fact, the vessel was not delayed at all by the purchase of the mackerel and the receiving it on board.</p> <p>It also appeared, that the vessel sailed from St. Thomas, and proceeded off Ponce in Porto Rico, where she lay off and on, while the master went in the boat to inquire as, to the state of the market; that the master was detained there, under the Spanish laws, and compelled to enter the vessel and pay the port dues, although there was no market at that port for the cargo ; that in order to secure his consignees, who had become liable for the port dues, he was obliged to land a quantity of mackerel ; that upon hearing that there had been a fire at Guayama, a port of the same island, eastward of Ponce, be proceeded thither, sold a part of his cargo, and took in a part of a return cargo on freight for New York; that he proceeded thence to Ponce, and having sold the residue of the outward cargo and procured the residue of the return cargo, sailed on his homeward voyage ; and that subsequently, by reason of the perils of the seas, the vessel was disabled from prosecuting her voyage, and compelled to put away for Bermuda, where, upon a survey, she was found to be much injured, and was condemned and sold. The proceeds of the sale were $1708.</p> <p>By the survey, it appeared, that she had been thrown upon her beam ends, and had suffered much sea damage ; that five feet of water had got into her hold and had melted some of the sugar with which she was loaded ; but that her main hatch was well secured and the sugar there was dry. It was estimated by the surveyors, that the expense of repairing the vessel would have been $3798. The vessel was duly abandoned to the defendants on July 23, 1832, upon the receipt of the intelligence of her loss ; but the abandonment was not accepted.</p> <p>The defendants contended, that the taking in the mackerel at St. Thomas, and selling it at Ponce, was a trading from port to port, and so was a deviation ; and that the return to Ponce was not within the protection of the policy. But the judge ruled otherwise.</p> <p>The defendants also contended, that if the taking the mackerel on board at St. Thomas was necessary, the discharging it at Ponce rendered the vessel unseaworthy on the voyage from Ponce to Guayama, and so avoided the policy. The judge thereupon ruled, that this was a question of fact; and that he should instruct the jury, that< the ' sel was not necessarily rendered unseaworthy by the fact above stated, but that it must depend on all the circumstances.</p> <p>The defendants then contended, that the surveyors’ report and estimate did not show, that the vessel could riot have been repaired at a cost not exceeding fifty per cent, of her value, as inserted in the policy. The plaintiffs insisted, that the survey and report did show, that the vessel could not have hc-en repaired, except at a cost exceeding fifty per cent, of her value at the time, which they contended was the true test, to determine whether the loss was total or not.</p> <p>A verdict was taken, by consent, for the plaintiffs, subject to the opinion of the whole Court.</p> <p>If the Court should be of opinion, that the taking the mackerel on board at St. Thomas, or the return to Ponce, avoided the policy, or that the rulings of the judge were wrong, or that the survey did not show a total loss, according to the principles of law, the verdict was to be set aside, ar>d a new trial granted ; otherwise judgment was to be entered on the verdict, which was for a gross sum, as for a total loss, deducting the salvage.</p>

<p>Assumpsit upon two joint and several promissory notes, dated June 29, 1832, made by the defendants, and payable to E. W. Calef or order, in nine months from the date, one note being for the sum of $313-56, and the other, for the sum of $300. The declaration contained the general counts; but there was no count declaring upon the notes.</p> <p>By an agreed statement of facts it appeared, that the notes, which had been endorsed in blank by the payee, were on September 10, 1832, stolen from the plaintiffs, who were then the holders ; that the notes had never been paid or heard of since the theft, to the knowledge either of the plaintiffs or of the defendants; that immediately after the notes were stolen, the plaintiffs informed the defendants of the fact, requesting them not to pay the notes to any person, but the plaintiffs themselves, or to their order in writing separate from the notes ; that notice of the theft was given immediately in the newspapers, cautioning all persons against buying them ; and that the plaintiffs had offered to indemnify the defendants against any loss, if they would pay to them the amount due upon the notes.</p> <p>Upon these facts, the Court were to enter up such judgment for the plaintiffs or for the defendants, as should be conformable to the law of the case, and to order a default or a nonsuit, according as they should determine that the plaintiffs had sustained or failed to sustain their action.</p>

<p>Assumpsit against the defendants, who transacted business under the firm of the Grafton Woollen Manufacturing Company. The writ was dated June 11, 1833, and contained the common money counts, and counts for goods sold and delivered, labor performed, and insimul compulassent. The trial was before Wilde J. "</p> <p>The plaintiffs filed a bill of particulars, which was in the form of an account current between the parties, showing the items of debit and credit between them from March 1830 to February 1833.</p> <p>The first item of debit in the bill of particulars was as follows : “ March 1, 1830. To balance from Matthias Armsby’s leger on interest, $2,953-32.”</p> <p>In relation to this item, it was proved by the plaintiffs, that previously to the day of its date, the defendants had con signed goods to Armsby for sale ; that on that day Armsby took John Witherell, the other plaintiff, into partnership with him ; that, for convenience in winding up the outstanding concerns of Armsby, the balances due to and from his customers, as well as their goods, were carried respectively to their debit and credit in the books of the new firm, but that the new firm acted merely as agents, without any interest therein ; that on March 1, 1830, the balance stated in the item in question, was due to Armsby from the defendants, but at the same time, the defendants had in his hands goods consigned to him for sale to an amount exceeding in value such balance ; and that the goods and the balance were, like all other consignments and balances, carried into the books of the new firm for the purpose before stated. The plaintiffs further proved, that subsequently to the transfer of the balance to the books of the new firm, the defendants continued to deal with the new firm, consigning to them goods, and receiving advances and payments ; that in December, 1830, the new firm rendered to the defendants their account current with them, containing a debit of the balance thus due to Armsby, and credits foi sales of the goods consigned to him to an amount exceeding such debit; that the new firm bad rendered to the defendants three other accounts current, embracing the balance of their £ st account, each of these accounts (the last of which was rendered in February 1833) taking up the balance of the preceding account; and that no objection had ever been made to these accounts.</p> <p>Upon these facts, the plaintiffs contended, that these accounts, rendered and acquiesced in for a long period of time, concluded the defendants, and that the plaintiffs had lawfully appropriated the proceeds of the goods transferred at the time of the formation of the new firm, to the payment of the balance also transferred. On February 1, 1832, a new partnership was formed under the firm of Armsby, Withered & Co., which consisted of Armsby, Withered, and one Barlow ; and the defendants produced an account rendered them by this firm under the date of February 1, 1833, claiming the same balance (a small item of $55-75 excepted) which is claimed in the present action. Barlow testified, that at the formation of this firm, ad balances of account with manufacturing establishments remaining open in the books of the firm of Armsby & Withered, were transferred to the books of the new firm ; that the account of the defendants was one of' the accounts so transferred ; and that these transfers were merely for convenience, and the firm of Armsby, Withered & Co. were only agents of the preceding firm, in regard to such transaction, without any interest therein.</p> <p>The defendants contended, that the debt due to Armsby could not be transferred to Armsby & Withered, so as to give them a right of action in their names, without the express assent of the defendants ; that if mere acquiescence in that transfer was sufficient to transfer the right of action, such right subsequently vested and remained in the firm of Armsby, Withered & Co., and that the balance brought from the books of Armsby should be struck out of the account and excluded from the consideration of the jury in this case.</p> <p>But the judge ruled, that if such balance was struck out, the credit in such account for sales of goods, which was transferred at the same time with the balance to the firm of Armsby & Withered, should be struck out also, which would leave due to them more than they claimed.</p> <p>A default was entered, subject to the opinion of the whole Court.</p>

<p>Upon a case stated it appeared, that this was an action of assumpsit on a promissory note, dated New York, November 26, 1826, for $161-67, payable to the plaintiff in six months from the date, and signed by the defendants, John F. Coffin and Frederick Cartwright, as partners. Coffin was arrested and held to bail; a chip was attached as the property of Cartwright, and a summons for his appearance left with the other defendant. The plaintiff claimed to take judgment against the defendant Coffin only. This defendant relied upon a discharge obtained by him in the State of New York, on March 29, 1830, by virtue of an insolvent act of that State, passed April 7, 1819. The certificate of discharge declares, “that the person of the said insolvent debtor shall be, and is, hereby forever after exempted from imprisonment for or by reason of any debt or debts due from him individually, or as one of the late firm of Coffin & Cartwright, at the time of making the deed of assignment [of all his estate, executed March 29, 1830], or contracted for before that time though payable afterward, and if in prison, from his imprisonment.” At the time when the note was given, the defendants were inhabitants of the State of New York, and the defendant Coffin continued to be an inhabitant up to the date of his discharge. At the time of the commencement of this suit, he was an inhabitant of Nantucket. The plaintiff was at the time when the note was given, and has been ever since, an inhabitant of Massachusetts.</p>

<p>In an action of replevin of goods attached by the defendant as an officer, on a writ against a stranger, such stranger is an incompetent witness, by reason of interest, to prove that the property was in himself.</p>

Bill in equity. The bill sets forth, that on August 12, 1824, Sally Humphrey conveyed to Prentiss Hobbs, one of the defendants, a lot of land with the buildings thereon, of the value of $4000, situated in Haverhill, to be held in trust by him and his heirs, for the sole and separate use of the plaintiff, then and ever since the wife of the other defendant, for and during her natural life ; that Hobbs accepted the trust and became seised of the estate accordingly ; that the…

The trustees, Munson and Barnard, upon examination in the Court of Common Pleas, disclosed an assignment of the property of the principal defendants, which was in their hands, to Ebenezer J. and Henry White.

<p>Indebitatus assumpsit for work and labor performed by Nicholas Kirby, the plaintiff’s intestate. Plea, the general issue.</p> <p>At the trial at November term 1832, before Wilde J., it appeared that Kirby was a printer, and that he died at Boston on November 23, 1830 ; and the defendant offered to prove that he was in the defendant’s employment at the time of his last sickness, that he was a stranger without relatives or near friends in this Commonwealth, and that for this reason, and because no other person had appeared to perform the duty of burying his body, the defendant had taken upon himself to administer upon his estate, in respect to his funeral. The funeral expenses defrayed by the defendant were offered in evidence as part-payment of the plaintiff’s demand. The defendant had also filed in set-off an account of these expenses. But the judge refused to admit the evidence either as proof of payment or by way of set-off. A verdict was found for the plaintiff, and the defendant filed exceptions to the foregoing decision of the judge.</p>

Assumpsit on the following promissory note: — “ Boston, 13 January, 1823. For value received, we, the subscribers, jointly and severally, promise to pay Messrs. J. and T. • Bradlee or order, for the Boston Glass Manufactory, thirty-five hundred dollars, on demand, with interest. Jonathan Hunnewell, Samuel Gore, Charles F. Kupfer.

<p>Assumpsit for services in attempting to cure the defendant’s son of a contraction of the sinews in the neck.</p> <p>The parties stated a case.</p> <p>The defence set up was, that the plaintiff had not been licensed by the Massachusetts Medical Society, nor been graduated as a doctor of medicine.</p> <p>It was agreed, that the plaintiff professed and practised bonesetting, and reducing sprains, swellings and contractions of the sinews, by friction and fomentation, but no other branch of the curing art.</p> <p>The questions raised were: 1. Whether the plaintiff was within the operation of the provision of St. 1818, c. 113, § 1 ; and 2. Whether such provision was unconstitutional.</p> <p>The plaintiff was to be nonsuited, or the defendant defaulted, according to the opinion of the Court.</p>

Bill in equity for the specific performance ol a contract. .

<p>The provision in the statute of limitations, that where the debtor at the time when the cause of action accrued, was out of the Commonwealth and did not leave at* tachable property therein, the statute shall not begin to run until his return, applies to persons who have never been within the Commonwealth, as well as to citizens who have been absent for a time.</p> <p>This provision applies to a new promise made out of the Commonwealth; and it makes no difference, whether the new promise was made before or after the original promise has been barred by the statute.</p> <p>In order to avoid this exception in the statute, the defendant is bound to show, that the creditor knew of his coming into the Commonwealth or having attachable property here, so as to have had an opportunity to arrest him, or make an attachment, or that his coming or having property was so public as to amount to constructive notice or knowledge, and to raise the presumption that if the creditor had used ordinary diligence the defendant might have been arrested or his property attached.</p> <p>In an action by the indorsee against the maker of a note, the declaration, and the replication to a plea of the statute of limitations, alleged that the indorsement (which bore no date) was made on a certain day, but the evidence showed it to have been made on another day, but previous to the commencement of the actio*. Held, that the variance was immaterial.</p>

<p>Where the liability of the defendants in an action upon a promissory note had tieea tried on the merits in a former action against them in the name of the plaintiff’s agent, upon the same note, and the note had been put upon the clerk’s files, the Court, in the exercise of its discretion, would not permit the plaintiff to take the note from the files in order to produce it in evidence in the subsequent action, nor allow him to give secondary evidence of its contents.</p>

Case. The declaration alleges, that the defendant, before May 10, 1832, had erected a certain building, and that it was well and strongly built, and that on that day he leased the chamber over the lower story to the defendant until January 1, 1833, and that the defendant thereupon took possession of the chamber and stored a large quantity of oats therein, to wit, 1500 bushels ; that on July 23, 1832, the plaintiff leased to the defendant as tenant at will the lower floor,…

<p>In 1816, an agreement was entered into between the defendant, who was an Insurance broker, and the administrator of an underwriter, setting forth that an account existed between the parties relating to matters of insurance done by the underwriter in the office of the defendant, and including a large number of unsettled losses, premiums and salvages ,* that the defendant agreed to allow the administrator the sum of $1100, in full for the balance of such account, and to assume upon himself the settlement and payment of all claims for partial and total losses and return premiums, with one exception specified ; and that it was mutually agreed, “ that all sums of money which the defendant has received or may here after collect and receive, for and on account of premiums due to the administrator for or on account of any matter or thing arising out of said insurance account is hereby assigned to and shall be the property of the defendant, and that he shall not be held to account.for the same; but all charges and expenses in and about the same are to be borne and paid by the defendant.” In 1833, a sum of money was awarded, under a treaty between the United States and Denmark, to the representatives of the underwriter, on account of his having underwritten various policies of insurance on vessels illegally captured under the authority of the government of Denmark, which policies were included in the account mentioned in the agreement. It was held, that the sum so awarded was strictly salvage; and that it passed to the defendant by virtue of the agreement, whether the claims were particularly contemplated by the parties to the agreement or not.</p>

<p>Assumpsit by the plaintiff, as indorsee, against the acceptor of the following draft: “Edwin Adams Esq. Boston. Sir, value received, pay John Spring Esq. or his order, twenty-one hundred dollars in thirty days from the date hereof, on account of logs purchased for you. May 25, 1833. Samuel Hodgdon.” The note was indorsed in blank by the payee.</p> <p>The declaration averred, that the draft was made at Boston.</p> <p>At the trial, before Wilde J., the plaintiff produced the draft in evidence, and the blank in the indorsement was filled up by the insertion of the words, “ Pay to Seth S. Fairfield, Cashier.”</p> <p>The defendant objected to the admission of the draft in evidence, on the ground of variance, it not being stated in the draft itself where it was made. This objection was overruled. The defendant then called as a witness M. S. Parker, the cashier of the Suffolk Bank, who testified, that the draft ivas received by him, in a few days after its date, inclosed in a letter from the plaintiff, requesting him to collect it, and pass it to the account of “ S. S. Fairfield, Cashier”; that the plaintiff was cashier of the Manufacturers’ Bank at Saco, at which bank the letter was dated ; that the draft not being paid at its maturity, it was returned to the plaintiff; that if it had been paid, it would have been passed to the credit of the plaintiff, as requested in the letter ; and that the Suffolk Bank had no account with the Manufacturers’ Bank, except the account with the plaintiff.</p> <p>The defendant was defaulted, and the following questions were reserved for the consideration of the whole Court:</p> <p>1. Whethei the draft was not inadmissible in evidence under the declaration, on account of the alleged variance ;</p> <p>2. Whether the action could be maintained by the plaintiff under the facts proved.</p> <p>If the Court should be of opinion for the defendant upon either of the points, the default was to be taken off, and a new trial granted ; otherwise, judgment was to be entered for the plaintiff on the default.</p>

<p>The plaintiff sued the defendant as administrator, on a simple contract debt due from the intestate, recovered judgment, and took out execution, on which the officer returned nulla bona. The plaintiff then sued out a scire facias against the defendant, suggesting waste, and while the scire facias was pending, the letter of administration was adjudged to be void, and a new letter of administration was granted to the defendant. A plea puis darrein continuance, alleging the invalidity of the plaintiff’s judgment by reason of the nullity of the first letter of administration, was supported as a bar to the scire facias, and within a year after this decision, but more than six years after the debt accrued, the plaintiff brought a new action against the defendant, li was held, that this action was maintainable, within a proper construction of the proviso in the statute of limitations, viz. that if a judgment for the plaintiff be reversed by reason of error, or be given against mm for matter alleged m arrest of judgment after a verdict in his favor, he may within a year commence a new action.</p>

These were actions upon the case, against the sheriff ol Suffolk, for the default of Daniel Parkman, one of his depu ties, in not levying two executions against E. K. Whitaker and A. B. Frothingham, as copartners, upon goods attached upon the original writ. One of the executions was in favor of Rogers, for $513-35, the other, in favor of Pearson, for $1221-47. The declarations contained counts for not paying over on demand, money collected on the executions.

<p>Assumpsit on a promissory note, dated October 9, 1833, for the sum of $254, made by Samuel Poor & Co., payable to the defendant, or his order, in four months, and indorsed by him to the plaintiffs.</p> <p>The trial was before Wilde J.</p> <p>Thomas A. Dexter, who was called as a witness by the plaintiff, testified, that on February 12, 1834, the note was delivered to him as a notary public ; that he called at the last place of business of the makers, and demanded payment of the note, but was told that they had failed and gone out of town without leaving any funds ; that he then made out a notice and went to the defendant’s place of business ; that he went into a shoe shop and inquired for the defendant, and was told, that he had gone out of town ; that he was then satisfied, that such shop was at that time or had recently been the defendant’s place of business ; and that he left the notice on the counter. It appeared, that the makers had in fact failed and given up their place of business ; and that it had been let to strangers, between whom and the makers there was no privity.</p> <p>Ira Goddard testified, that some one brought a notice for the defendant and left it with him at his place of business ; that he told the person who brought the notice, that it was not the defendant’s place of business, but that the defendant had one back of the shop in which the witness then was, and up the yard ; that the witness promised to give the notice to the defendant so soon as he should see him ; that on the next day or the day after, the witness told the defendant that there was a notice for him in his shop ; and that the defendant came and took the notice away with him.</p> <p>By the Boston Directory, it appeared, that the firm of Poor & Co. consisted of Poor and Abner Breeden ; and by referring to the name of Breeden, it would have been found that he had a domicil in Boston. In point of fact Poor lived in Charlestown, and Breeden in Boston.</p> <p>If upon this evidence the Court should be of opinion, that the plaintiffs were entitled to recover, judgment was to be rendered in their,favor ; if otherwise, they were to become nonsuit.</p>

<p>If a creditor having two demands against his debtor instructs his attorney to bring an action upon one of them, and the attorney inserts in the declaration a general count applicable to either, for the purpose of covering any demand which his client may have, the defendant cannot object to the plaintiff’s giving in evidence the demand which originally was not intended to be embraced in the action.</p>

Assumpsit upon a policy of insurance, dated November 10, 1831, by which the defendants insured the sum of $1000, upon profits on merchandise, in the schooner Saco, from Mansanilla to Boston. The profits were valued at the sum insured. The plaintiff claimed as for a total loss.

<p>During the session of this Court an order was obtained by the plaintiff, for taking the deposition of a witness, who was bound to sea, and notice was delivered to the defendants’ attorney of record at 11 o’clock, A. M. to attend the taking of the deposition at 4 o’clock P. M. of the same day ; and the attorney attended and filed interrogatories, but protested against the notice as being insufficient. It was held, that the deposition so taken was admissible in evidence.</p> <p>In an action by a ship’s husband for supplies furnished to the vessel, parol evidence is admissible to prove that all the defendants were jointly interested in the vessel, although she was registered in the name of one only.</p> <p>In an action against partners upon an alleged partnership account, it is competent for the plaintiff to prove, that one of the partners, after the dissolution of the partnership, acknowledged the account to be correct and directed that a balance against a copartner on a separate account with the plaintiff, should be transferred to the debit of the partnership, stating that it was all one concern.</p> <p>In an action by a part-owner and ship’s husband of a vessel against the other part-owners, to recover the balance of an account of the expenses and earnings of the vessel, which was acknowledged by the defendants to be correct, it appeared that at the time when the action was commenced, there was a single outstanding debt due to such owners, which was not mentioned in such account, and which had been subsequently collected. It was held, that the action might be maintained, provided the amount of such debt should be allowed by the plaintiff.</p> <p>In an action upon an account stated by the plaintiff, but not signed by the defendant, it was held, that the account might be proved by the acknowledgment of the defendant.</p> <p>Where the accounts of a voyage were made up by the plaintiff, a part-owner of the vessel and ship’s husband, from the vouchers, &c., and copies of the accounts were delivered to the defendants, the other part-owners, by whom they were acknowledged to be correct, it was held, in an action to recover the balance of the accounts, that copies of such copies were not admissible in evidence, no notice having been given to the defendants to produce the original copies ; and that the original books from which the accounts were taken, were also inadmissible without such notice, to prove the contents.of the copies which were delivered to the defendants.</p>

This was assumpsit for the non-delivery of a vessel, in pjrsoance of an agreement made between the parties. The writ was issued in July 1833.

<p>Assumpsit. In one of these actions the plaintiff declared on a promissory note, dated March 25, 1831, for $8100 payable to the plaintiff or order in ten months. In the other, he declared upon three notes, two of them dated March 25, 1833, each for $8100, payable to the promisors’ own order, one in twelve, the other in fourteen months, and the third, dated November 29, 1833, for $4856'48, payable to the plaintiff or order in six months. All these notes were given for iron purchased of the plaintiff, and were signed “ I. & J. Pratt & Co.,” and the two which were payable to the promisors’ own order, were indorsed “ I. & J. Pratt & Co.”</p> <p>The defendants named in the writs were Isaac Pratt, Jared Pratt and Charles Wilbur, of Wareham, Benjamin Rodman, of New Bedford, Josiah L. James and Nathan Caswell, of the city of New York, and Benjamin L. Thompson, of Charlestown, and they, with one Newton Willey deceased, were alleged to be copartners, jointly negotiating in the name and style of 1. & J. Pratt & Co. There was no service on James and Caswell; and the name of Rodman was struck out, the defendants not objecting.</p> <p>Isaac and Jared Pratt, Wilbur, and Thompson, pleaded that they, with James, Caswell and Willey, never promised the plaintiff in manner &c.; and issue was joined on this plea.</p> <p>The two actions were tried together, before Putnam J., upon the general issue thus pleaded.</p> <p>The defendants’ counsel moved that the names of Thompson and Willey should be struck out of the writ and declaration. It was admitted, in regard to one of the actions, that they had been made parties, in virtue of St. 1833, c. 194, after the writ had been commenced against the other parties and returned. The words of the statute are, that “at any time before issue joined, on a plea of non-joinder of a party as defendant in any action,” &c., “ the plaintiff may on motion be allowed to amend his writ by inserting the name of any other person or persons as defendant or defendants,” &c. The defendants’ counsel contended, that the amendment is allowable only in cases where a plea in abatement for nonjoinder has been made. No such plea was made in the present case. The judge rejected the motion.</p> <p>It appeared that the signatures on the notes were made by Jared Pratt, who was one of the firm of I. & J. Pratt & Co., pievious to February 1, 1828, when an act was passed, (St 1827, c. 28,) incorporating the Wareham Iron Company.</p> <p>To maintain the issue on the part of the plaintiff, and tc prove that Thompson and Willey were copartners in the firm of I. & J. Pratt & Co., the plaintiff offered in evidence the following written contract:</p> <p>“ Memorandum of an agreement made by the subscribers the 10th day of October, 1827, viz. Thompson & Willey, of Boston, and Josiah L. James & Co., of the city of New York, agree to take and pay for the one fourth part of the real estate purchased by Messrs. I. and J. Pratt & Co. formerly of their deceased partner, say at $15,000. Also they agree with the said I. & J. Pratt & Co., to purchase the one fourth of the stock of said factory, bought by them, belonging to the estate of their former partner, at the appraisal. Also to be interested or allowed one fourth part of all the profits arising from the manufacturing of iron and nails, and in all profits or loss in the same since the appraisal of said estate, the 20th day of April, 1827, and to pay the said Messrs. Pratt & Co. two thousand dollars profits on the same in six months from this date ; that is, one thousand dollars to be paid by Thompson & Willey, and one thousand dollars by J. L. James & Co. And the said I. & J. Pratt & Co. agree to get the said manufacturing establishment incorporated in January next: at which time all the property now belonging, or that may belong, to said concern, shall be put into shares, three fourths of which shall belong to them, and the other one fourth to Thompson & Willey and J. L. James & Co., when an exhibition is to be made to the satisfaction of all, and a copartnership formed. Messrs. I. & J. Pratt & Co. are at liberty to sell one fourth part of whole concern of real estate and stock to John A. Parker, Esq. and Benjamin Rodman, of New Bedford, that is, one third of their three fourths. The services of Messrs. Pratt & Co. shall commence from April 20, 1827.”</p> <p>This agreement was proved to have been subscribed by Thompson & Willey, Josiah L. James & Co. and I. & J. Piatt & Co. A writing was indorsed upon it, dated March 26, 1828, and signed by Josiah L. James & Co and Thompson & Willey, which was as follows: —</p> <p>‘ This contract is this day cancelled, except the two thousand dollars, which is still due to Isaac Pratt, Jared Pratt and Charles Wilbur, and which we promise to liquidate and settle on demand.”</p> <p>A letter from Thompson St Willey, dated October 27, 1827, to I. St J. Pratt & Co. was read, beginning thus: — “ Yours of the 24th was duly received. We are pleased to hear that you get along so well with Mr. Spooner, &c. Your draft shall be duly honored,” &c. The plaintiff called on Thompson to produce the letter of I. St J. Pratt & Co. of the 24th, referred to in the letter of Thompson & Willey, but he would not produce it. It was .alleged by the plaintiff’s counsel, and not denied nor admitted by the defendants’ counsel, that the draft mentioned in the letter of the 27th was for the purchase money named in the agreement above recited, and that the same draft was paid before March 26, 1828. The payment of it was not denied.</p> <p>The plaintiff read in evidence other letters of Thompson & Willey to I. St J. Pratt & Co., and called on Thompson to produce the letters of I. St J. Pratt St Co., making the other part of the correspondence, which Thompson refused to do. One of the letters read, dated July 3, 1827, states the terms of an offer made by the plaintiff to sell his iron to I. St J. Pratt St Co. ; another, dated September 28, 1827, says, “ Your favor of the 26th came to hand this morning, informing us of your purchase of the one fourth of your establishment belonging to the deceased partner. We have anticipated being concerned with you and still wish to. Our Mr. Thompson left here Stc. and calculated to be in New York on Monday next, when he will of course converse with Mr. James on the subject. I shall write him to-morrow and request him to visit you with Mr. James on his return, if they can, Stc., if not, you will advise Mr. James of the purchase and your wishes, in season, before Mr. Thompson leaves there. It is my wish to carry the same into effect immediately, if agreeable to all; ” — another of November 13, 1827, acknowledges the receipt of 200 casks of nails, states that Thompson St Willey have sold a part of them ; says, “ Our friend James St Co. wrote us a few days since, that the price could be advanced in New York, if expedient; we' referred him to you on the subject; we see no objections to getting all they would bring ; ” and states that Thompson & Willey have sent five laborers to I. & J. Pratt & Co. ; — another, dated December 27, 1827, mentions the arrival of a parcel of nails and the non-arrival of another parcel, and says, “ Our friend James said he would meet you at this city at such time the first of January as should be necessary, to carry into effect whatever should be thought best for the interest of the concern.”</p> <p>It appeared that the firm of I. & J. Pratt & Co. had existed and transacted business, before October 10, 1827, to a great extent; that Daniel Crane was one of the firm ; that he died on April 20, 1827; and that his interest in the partnership property was conveyed by N. S. Spooner, as administrator and guardian, to I. & J. Pratt & Co.</p> <p>The plaintiff’s counsel contended, and requested the Court to instruct the jury, as matter of law, that the agreement of October 10th, coupled with the evidence in the case as to the payment of the purchase money, &c., and the letters in the case, if believed and established, was sufficient evidence to prove that Thompson and Willey became partners in the firm of I. & J. Pratt & Co. on the 10th of October, 1827; and the Court so instructed the jury.</p> <p>On the part of the defendants it was contended, that if the agreement of the 10th of October constituted a partnership, and made Thompson and Willey copartners in the firm of I. & J. Pratt & Co., it was a limited partnership and ceased by its own limitation when the act of incorporation was obtained, in February 1828, long before the notes in suit were given. It appeared that the plaintiff did not come to the knowledge of the agreement until November 1834. The judge instructed the jury, that the partnership created by the agreement, did not, according to the true construction of the agreement, cease by its own limitation when the act of incorporation was obtained ; but that if the agreement constituted a limited partnership, yet if the business was transacted in.the partnership name after the act of incorporation, as it bad been before, without notice of its supposed limitation, the copartners would be liable until a dissolution and legal notice of such dissolution were proved.</p> <p>The defendants offered in evidence the deed of N. S. Spooner, guardian of the heirs of Crane, dated October 29, 1827, for the consideration of $15,000, to Isaac Pratt, Jared Pratt and Charles Wilbur, of Crane’s property in the firm of I. & J. Pratt & Co.</p> <p>It was proved by the defendants, that an act of incorporation was obtained on February 1, 1828, by which Jared Pratt, Isaac Pratt, Wilbur, Thompson, Willey, James, Rodman and Caswell, their associates, successors and assigns, were made a corporation by the name of the Wareham Iron Company, with all the powers, privileges, duties and requirements of the statute of 1808, c. 65, which defines the general powers of manufacturing corporations.</p> <p>They offered in evidence the doings of the corporation on the 25th and 26th of March, 1828, adopting the act of incorporation; also the advertisements in the Plymouth Memorial of March 8, 1828, and in the Patriot, and in the Daily Advertiser, published in Boston, in May 1828, giving notice of the organization of the Wareham Iron Company, and of their having adopted the provisions of the act, passed on March 10, 1828, entitled “An act in addition to the several acts respecting the general powers and duties of manufacturing corporations.”</p> <p>Also the deed from Isaac Pratt, Jared Pratt and Charles Wilbur, to the corporation, dated and acknowledged on the 26th of March, 1828, and recorded in the registry of deeds on the 15th of April, 1828. The consideration mentioned in this deed was 100,000 dollars, and the deed purports to convey all the right &c. of the grantors, in the real estate, (describing it,) and all the partnership goods, merchandise, stock in trade, debts, sum and sums of money, personal estate and effects whatsoever, due, owing or belonging to the grantors as partners in business under the firm of I. & J. Pratt & Co., the ■ corporation assuming and paying all the debts and discharging all the obligations of the firm. The deed contains the following clauses : “ The above provisions as they regard the- debts due to, and liability to pay debts due from the co-partnership aforesaid, to extend to, and not beyond the 20th day of April last inclusive.”—And the corporation aforesaid are to account with the said partnership for the amount of the appraisal of the personal estate of the original firm of I. & J. Pratt & Co. in April last, as taken by Bartlett Murdock, Elijah Willis and Gideon Nye, to which reference may be had.”</p> <p>The defendants also offered evidence to prove that Thompson and Willey had sold their shares in the corporation before the notes in suit were made. The plaintiff’s counsel objected that this evidence was irrelevant, but it was admitted.</p> <p>They also offered in evidence the by-laws of the corporation, made on March 26, 1828. The first article is, that “ the business of the company shall be transacted under the firm of I. & J. Pratt & Co.” The fourth article : “ There shall be a treasurer, &c. He shall give and take notes and securities in the name and firm of I. & J. Pratt & Co., which shall be used and only used for and in behalf of the concerns of the corporation.”</p> <p>It appeared that all the defendants were present when the by-laws were adopted. And it was proved that the business was done in the name of I. & J. Pratt & Co. after the corporation was formed. There was no apparent change, and the paper of that signature was in the market, in the banks, in the hands of brokers, and otherwise in circulation, to a very large amount, up to the time of the failure of the corporation on January 27, 1834. The sign of I. & J. Pratt & Co. was continued on the store at the works in Wareham, for several years after the incorporation, until a new store was built, and then no sign was put up.</p> <p>There was no other evidence of the dissolution of the firm of I. & J. Pratt & Co., excepting the supposed limitation of the firm, as before mentioned, the act of incorporation, and the acceptance of it, the notices in the newspapers, the deeds, the doings of the corporation as proved in the case, and the indorsement on the agreement. The by-laws were not made public by any publication in the newspapers or otherwise, nor made known to the plaintiff.</p> <p>The defendants contended, that the evidence was sufficient to prove that the copartnership of I. & J. Pratt & Co. had been dissolved. The jury were instructed that it was not sufficient to prove such dissolution.</p> <p>The defendants requested the Court to instruct the jury : —</p> <p>1. That the memorandum of October 10, 1827, did not constitute the parties who signed it copartners, and that the defendants were not by reason of it liable to the plaintiff. But the judge instructed the jury, that the agreement, coupled with the evidence of the payment of the alleged purchase money, and the evidence contained in the letters, if established to their satisfaction, did constitute those who subscribed it, copartners at that time.</p> <p>2. That if the memorandum did constitute the parties to it copartners, the copartnership was, by the terms of the memorandum, a limited one, and that it terminated when the act of incorporation was obtained ; so that after that time, the parties to it were not copartners, but corporators, and that these actions should have been brought against the corporation. But the jury were instructed otherwise, as before stated.</p> <p>3. That if the jury are satisfied that the plaintiff never dealt with the firm of I. & J. Pratt & Co. till after the act of incorporation of February 1828, and that he never knew of the existence of such a firm until after that time, it was incumbent on him to know with whom he dealt and that he was dealing with a corporation. But the judge considered that the supposition, that the plaintiff did not know of the existence of the firm until after February 1828, was disproved by the letters of Thompson & Willey to I. & J. Pratt & Co. written before that time ; and the jury were instructed, that the plaintiff seeing the name of a firm or private partnership upon the paper, without any reference to "a corporation, it was not for the plaintiff to know, but it was for the defendants to prove, that the plaintiff was dealing with a corporation and not with copartners ; and that the plaintiff had a right to recover against all who were copartners when the notes were made, unless the defendants should prove that he knew that he was dealing with a corporation, and not with copartners, notwithstanding he had never dealt with the firm of T. & J. Pratt & Co. until after the act of incorporation.</p> <p>4. That if the jury are satisfied from all the evidence, that the plaintiff knew that he was dealing with a corporation at the time when he sold the iron and took the notes, he cannot prevail in this suit against any of the defendants, as his action should have been brought against the corporation, and not against individuals as copartners. The j'udge instructed the jury accordingly, and the whole evidence upon that point was left to them ; and they found a verdict for the plaintiff, thereby declaring that the plaintiff did not know, when he sold the iron and took the notes, that he was dealing with a corporation and not with individuals as copartners.</p> <p>5. That if the memorandum constituted a copartnership, the memorandum was cancelled by the writing upon the back of it and was of no further effect, provided it was not known to the plaintiff till after the act of incorporation. But the judge instructed the jury, that such writing was of itself no dissolution of the agreement of copartnership, but evidence that certain things had been accomplished, which were by the terms of it to be done, leaving the rest to be performed.</p> <p>7. That if the jury find that Thompson and Willey were not corporators, but copartners with the other defendants, at the time of their dissolving their connexion with them, still they are not liable in this action, provided the plaintiff knew that they had so dissolved their connexion at the time when be took the notes, whatever might have been the plaintiff’s means of knowledge. The judge assented to this as a general proposition, and illustrated it to the jury by saying, that if a neighbour, of good reputation, who knew such fact, had given information of it to the plaintiff, it should be considered as express notice, and not mere conjecture.</p> <p>It was stated by the counsel for the defendants, that the corporation failed on January 27, 1834, and transferred their property to Thompson and Willey. The plaintiff, in the course of the trial, called for the assignment, but it was not produced.</p> <p>The defendants proposed to inquire of witnesses, whether there was a general reputation or report on the exchange, that by the signature of I. & J. Pratt & Co. the corporation of the Wareham Iron Company was meant. This was objected to by the plaintiff, and not permitted; but the evidence was confined to the knowledge of the witnesses who were called on that point, and who had discounted or dealt in the paper of that signature.</p> <p>The defendants desired to inquire of their witnesses, whether they had heard that Thompson and Willey had left the concern, and whether that was the common reputation; which was objected to by the plaintiff and not allowed.</p> <p>The defendants moved for a new trial.</p>

<p>Where the parties to a deed probably intended that it should convey a strip of land of a given width adjoining and parallel to the grantees’s lot, but they referred in the deed to the side of his wharf as a monument designating the line of his lot, when in fact it was the true boundary of only part of his lot, and if extended, would fall within his lot, it was held, that the monument must govern as the parties intended it should do, and that this particular intent must control the general intent.</p> <p>There being several inlets into different sections of the wharf so referred to, caused b;y making towards low-water mark additions to an old wharf, it was held, that the side of tiiis old wharf must be taken as the monument, because it had in former deeds been referred to as fixing the boundary of the grantee’s iot, and because there had never been any dispute as to its being the dividing line between his lot and the granted premises, down to the end of this old wharf.</p> <p>A parcel of land, wharf and flats, was granted, bounded westerly on Purchase street, there measuring 112 feet, northerly on land of G, there measuring from Purchase street to the capsill of the wharf 114 feet, and from thence to run down to low-water mark, easterly on the sea or salt water, there measuring at the capsill of the wharf 87 feet, southerly on land of A, there measuring from Purchase street to the capsill of the wharf 114 feet, and from thence down to low-water mark. Held, that the land conveyed was not intended to measure 87 feet at low-water mark, but that the northerly and southerly boundary lines, which were certain for 114 feet from Purchase street, were to be run straight, and consequently converging, to low-water mark.</p>

<p>By the St, 1803, c, 111, annexing South Boston to Boston, the selectmen of Boston were authorized “ to lay out such streets and lanes” in South Boston, as in their judgment would be for the common benefit of the proprietors of the land, and of the town of Boston, provided “ that the town of Boston shall not be obliged to complete the streets laid out by their selectmen pursuant to this act, sooner than they may deem it expedient so to do.” At a meeting of the selectmen of Boston, on February 27, 1805, a street was laid out in pursuance of such statute. On November 7j 1831, the mayor and aldermen (successors of the selectmen of Boston) passed an order, that such street “ should be made passable,” (( provided, that a sum not exceeding $500 be expended during the current year.” It was held, that such order of the mayor and aldermen was a declaration of the expediency of completing the street for public use; that the city were thereupon bound to complete it within a reasonable time; that the question of reasonable time was a question of law, to be determined by the circumstances of the case; and that the city were liable to indictment for not keeping such street in repair.</p>

<p>In the 19th and 20th sections of St. 1827, c. 118, which provide, that whenever any person who shall be convicted of any crime, the punishment whereof shall be confinement to hard labor <c for any term of years,” shall have been before sentenced to a like punishment, he shall be sentenced to punishment in addition to that by law prescribed for the offence of which he shall be convicted, the words term of years embrace the case of a party who has been sentenced to confinement to hard labor for life.</p> <p>Those sections were not repealed by St. 1832, c. 73, or St. 1833, c. 85.</p>

<p>This was an appeal from a judgment of the Municipal Court, rendered in February 1835, upon an information praying that the defendant, who was a convict in the State piison. might be sentenced to additional punishment. The informa tion stated, that in February 1827, the prisoner was indicted and convicted of forgery and sentenced to hard labor in the State prison for five years, and that he was discharged in February 1830, part of the sentence being remitted ; and that in April 1831, he was indicted and convicted of forgery, and sentenced to hard labor in the State prison for four years. The prisoner demurred to the information, but the Municipal Court overruled the demurrer, and sentenced him to an additional punishment by confinement to hard labor for two years.</p>

<p>This was case for a malicious prosecution. The defendant was defaulted, but the cause was subsequently submitted to a jury for the assessment of the damages, Slum C. J. presiding. There was no evidence of express malice ; and the only question was, whether the facts afforded such evidence of im plied malice as would support the action.</p> <p>It appeared, that the plaintiffs, who W'ere merchants in Boston, had had dealings with the defendant, who lived in Eden, in the State of Maine, and that they had purchased a vessel of him and had prepared her for sea ; that the defendant then commenced an action of assumpsit against them for the sum of $1500; that by the writ the officer w'as directed to attach property to the amount of $2000, and he attached the vessel, which was worth three or four times that sum ; and that the plaintiffs had no other property in Maine open to attachment.</p> <p>It was contended by the plaintiffs, that they owed the defendant nothing at the time of the attachment, because, although he had advanced money for them to the amount of about $120, yet it was upon an agreement, that it should be repaid in Boston, and therefore that it was not then due, and that whether this sum was due or not, the commencement of an action for a sum so much larger than the sum due, and attaching property to so large an amount, was evidence of implied malice and afforded good ground for the present action.</p> <p>It further appeared from the evidence offered by the plain ■ tiffs, that the attachment was made on July 19, 1833 ; that notice thereof was immediately sent to the plaintiffs at Boston ; that Henry Curtis, one of the plaintiffs, proceeded immediately to Eden, and settled the action by paying the sum of $124-84, and the costs, amounting to the sum of $22*84 ; that the defendant gave a receipt therefor, in which it was declared that these sums were in discharge of a suit brought by him against the plaintiffs ; and that the vessel was thereupon released from attachment.</p> <p>Upon these facts, two questions were reserved for the consideration of the Court:</p> <p>1. Whether the plaintiffs, having submitted to the demand of the defendant, and settled the action brought by him, were at liberty, in the present action, to contest the fact, that the defendant had a good cause of action against them.</p> <p>2. Whether, if the defendant had a good cause of action to that, extent only, the present action could be maintained, in consequence of that action having been brought for a much larger sum, and of the excessive attachment.</p> <p>If the Court should be of opinion, that the action could not be maintained, the plaintiffs were to become nonsuit; otherwise judgment was to be entered for the plaintiffs on the default, for the damages assessed by the jury.</p>

<p>This was a petition for partition, in which the petitioner claimed to have twenty-one undivided thirty-sixth parts of a certain messuage set off to him in severalty. The respondent, in his plea, alleged, that he was seised of one undivided moiety, and traversed the allegation of the petitioner, as to his seisin of twenty-one undivided thirty-sixth parts of the piemi ses ; and issue was joined thereon.</p> <p>It appeared, that in 1773, Hugh Hall, who was seised of the premises, devised them to his son, Benjamin, during his life, and, if he should have children, then, at his death, to his children lawfully begotten, and their heirs forever; and that Benjamin was married in 1774, and had six children, to wit, Polly, Benjamin, William, Sally, Pitts, and Charles. Benjamin and William died in infancy. Polly died at mature age, leaving issue, a son, who died, under age and unmarried, in the lifetime of Benjamin, thé devisee.</p> <p>On April 23, 1799, Benjamin Hall, the elder, upon an inquisition duly had, was found to be a person non compos mentis, and the petitioner was appointed by the judge of probate to be his guardian. This guardianship continued until the death of the ward, on March 12, 1830.</p> <p>On July 13, 1813, Pitts Hall executed a deed purporting to convey to the petitioner, one fourth part of the premises, as his interest therein, for a valuable consideration, and shortly afterwards died without issue.</p> <p>In 1814 the petitioner, in his capacity as guardian, present ed a petition to this court, for a license to sell so much of the real estate of his ward as should be necessary for the payment . of the debts incurred for the support of the ward and his family. License was accordingly granted to sell so much as should be required to raise the sum of $3093-78, and the incidental charges amounting to the sum of $30. By virtue of this license the petitioner sold a portion of the premises, which was bid off by Isaac F. Coffin, for the sum authorized to be raised by such sale ; and on June 26, 1815, the petitioner executed a deed purporting to convey this portion to Coffin, with a covenant that the petitioner was lawfully authorized and empowered to make sale of the granted premises. On the same day, Coffin, for the alleged consideration of $3500, reconvcyed the same to the petitioner. On September 20, 1831, an agreement was entered into between the petitioner and the respondent and his sister, Sally, by which it was provided that the petitioner should release to them all the right and title which he acquired in virtue of the deed from Coffin, and that they should, on their part, pay to the petitioner the sum of $1000. A quit-claim deed was accordingly made by the petitioner. in pursuance of this agreement, on September 20, 1831, and he afterwards received from them the sum agreed upon.</p> <p>On June 12, 1834, Sally, for a valuable consideration, conveyed all her interest and estate in the premises to the petitioner.</p> <p>No evidence was produced tending to show, that the respondent knew of the conveyance from Pitts Hall to the petitioner, other than the legal presumption of notice arising from the recording of the deed in the registry of deeds.</p> <p>A default was entered by consent. Judgment was to oe rendered for partition, and an assignment to be made to the petitioner of such portion of the premises, as he should be entitled to, in the opinion of the Court, upon these facts.</p>

<p>This was case against a deputy sheriff, for taking forty-eight swine, which had been mortgaged to the plaintiff by Edward Walker, on July 5, 1833, to securé the payment of a promissory note of the same date, payable in six months from that time.</p> <p>The trial was before Wilde J.</p> <p>The mortgage deed, which was duly recorded on the dav of its date, in the records of the town of Charlestown, where the mortgager then resided, contained a stipulation that until there should be a default in the payment of the note after it became due, the mortgager should retain possession of the swine, for the purpose of fattening and preparing them for market.</p> <p>On the next day after the mortgage was executed, the defendant attached the swine, on a writ in favor of Nathan Tufts & Co., who were alleged to be creditors of the mortgager, and sold them under such attachment, without pursuing the provisions of St. 1829, c. 124, [Revised Stat. c. 90, § 78.] This attachment and sale were the cause of the present action.</p> <p>The defendant objected, that case was not the proper form of action ; but this objection was overruled.</p> <p>There was no evidence offered by tne plaintiff of any actual delivery of the property in question ; and the defendant contended, that without such evidence, the action could not be maintained.</p> <p>In this stage of the cause it was taken from the jury.</p> <p>Upon these facts the Court were to order a nonsuit or default, as law and justice should require, reserving to the defendant, in case of a default, the right of being heard on the question of damages.</p>

<p>In pursuance of orders from W, of Boston, a quantity of merchandise was shipped at Liverpool by M, for the account of W, on board a general freighting vessel which had. been consigned to M, and designated by W for the purpose ; and a bill of lading was obtained by M, by the terms of which the merchandise was deliverable to W. It seems, that this was a sale and constructive delivery of the merchandise ; and it was held, that M could not, by withholding the bill of lading from W and subsequently enclosing it and the invoice in a letter to his agent, with directions to deliver it to W only upon payment for the merchandise, convert such absolute delivery into a conditional one, or divest W of his property in the merchandise.</p> <p>In the same case, which was trover against the agent of M, it appeared, that a balance was due from W to M, independently of the cost of the merchandise ; that before the arrival of the vessel in Boston, W became insolvent and assigned his property to the plaintiffs for the benefit of his creditors, stipulating to indorse and deliver the bill of lading of the merchandise to the plaintiffs as soon as he should receive it; that the bill of lading was received by W after the assignment, and handed by him to the plaintiffs unindorsed, but was indorsed after the commencement of the action ; and that upon the arrival of the vessel in Boston, the defendant, as the agent of M, being also the owner of the vessel, obtained actual possession of the merchandise. It was held, that this was a stoppage in transitu on the part of M ; and that it was effectual as against the plaintiffs, the assignees of VV, although they supposed, when the assignment was made, that at the time of the execution of the orders for the shipment of the merchandise, there was a balance due from M to W.</p>

<p>This was an action of the case. The first count alleges that the defendants, J. B. Dorion, T. Fuller, I. Winslow, and two others, on May 22, 1832, by a conspiracy between them first thereof had to oppress, impoverish, aggrieve and disgrace the plaintiff, maliciously and without any probable cause, sued out of the Court of Common Pleas a writ of trover in the name of Dorion against the plaintiff, and caused her to be arrested upon the writ, and, for want of sufficient bail, caused her to be imprisoned ; that the action was entered at the July term following, and continued until the next October term, when it was nonsuited, for want of the appearance of Dorion to prosecute the same, and that the same was fully determined and ended.</p> <p>The second count, which was filed under leave to amend, alleges that the defendants, on May 22, 1832, prosecuted a writ of trover in the name of Dorion, returnable at July term 1832, of the Court of Common Pleas, against the plaintiff, and caused the plaintiff to be arrested thereon, and, for want of sufficient bail, removed from her dwellinghouse, and with circumstances calculated to cause unto her the utmost mortification, public reproach and disgrace, to be committed to jail, where she was detained sixty days; and afterwards at the Court of Common Pleas, to which the writ was returnable</p> <p>and,wherein the action was entered, the action was continued until the next ensuing term, in October 1832, when Dorion, for want of bis appearance to prosecute the action, became nonsuit; and the plaintiff being wholly innocent of the wrong in that action alleged against her, was duly discharged therer from, and the action was fully ended and determined ; and whereas a certain process of law was instituted on July 18,</p> <p>1832, for taking certain depositions, by means of which it became known and was clearly manifested to the defendants, that there was no lawful or probable cause of action against the plaintiff on behalf of Dorion, yet the defendants, further contriving and maliciously intending to oppress and unjustly imprison, impoverish, and degrade the plaintiff, by force of the writ in the name of Dorion, did, at Boston, on the 18th of the same July, falsely and maliciously imprison the plaintiff in jail, and did then and there detain her for the space of twenty days.</p> <p>The plaintiff discontinued against Winslow. The other four defendants severally pleaded not guilty, and upon a trial in this Court, a verdict was returned against Dorion and Fuller, and in favor of the other two defendants. Fuller and Dorion moved for a new trial, because the verdict was against the evidence, and because it was against law, inasmuch as the judge before whom the cause was tried, ruled that under the second count the plaintiff might recover against all the defendants, if the evidence showed a malicious prosecution by Dorion. And they moved in arrest of judgment, because the amended count was for a new cause of action ; because neither of the counts was good ; and because the counts were inconsistent with each other.</p>

<p>Devise : —“ I give and devise to ray wife the use and improvement of one third part of all my real and personal estate, during her natural life; and I give and devise the same at her decease to my children, their heirs and assigns.” It was held, in regard to the real estate, that this clause gave a vested remainder to the children, and that by virtue of St» 1785, c. 62, § 4, they took the same as tenants In common.</p> <p>The St» 1805, c. 90, enacts that when any person shall die seised of any land, not having lawfully devised the same, the same shall descend, when there shall be no issue nor father, in equal shares to the intestate’s mother, if any, and to his brothers and sisters, provided that when any child shall die under age, not having been married, his share of the inheritance that came from his father shall descend in equal shares to his father’s other children then living, and to the issue of any such other children who shall have died, by right of representation. Held, that this proviso does not apply to land which came to the intestate by devise from his father; and, consequently, that a share of such land descends to the intestate’s mother.</p> <p>A testator, having devised land to his children as tenants in common, died leaving five children and a widow, their mother. Two of the children died intestate and without having been married, one of full age, the other an infant. The mother married a second husband, and joined with him in a petition that the share which descended to her from the child who was of age, should be set off to her, and partition was made accordingly, no claim being made by them to a share of the infant’s land, they supposing, probably, that the whole descended to the surviving children. The infant’s land had remained in the hands of the executor, until the wife died. On a hill in equity against the executor, it was held, that the petition and judgment for partition did not estop the husband from claiming a share of the rents received by the executor after the death of the infant and during the coverture, nor bar the heir . of the mother from claiming her share of the infant’s land.</p>

Assumpsit for goods sold and delivered. Counts on promissory notes, and the money counts, were added. At the coming on of the trial, Henry Price, one of the defendants named in the writ, was on motion of the defendants’ counsel defaulted. After the plaintiffs had introduced their evidence, the defendants offered Price as a witness in support of the defence.

<p>Assumpsit on a policy of insurance on the ship Tarquín. In the margin of the policy was this memorandum : “ Said ship Tarquin was spoken with on the 27th August, 1824, in lat. 35° 5' N., Ion. 160° 40' W.” At the trial, before Mor ton J., the plaintiffs offered evidence to show that the figures 27 were inserted in the memorandum by the defendants, by mistake and inadvertence, instead of the figures 20, and that the statement was intended and understood by both parties to the contract, to apply to the 20th, and not to the 27th of August ; and to conform to a statement, in the handwriting of the master of the ship by which the Tarquin was spoken, left with the defendants when application was made at their office for insurance. This evidence was objected to, but was admitted ; and a verdict was returned for the plaintiffs, by consent. If the evidence was improperly admitted, a new trial was to be granted.</p>

<p>A statute providing that prosecutions for violations of the by-laws of a city may be ib the name of the Commonwealth, is not unconstitutional, notwithstanding that in prosecutions in that form the defendant is not allowed costs on acquittal.</p> <p>The making and regulation of streets in the city of Boston is provided for exclusive!) by special statutes; consequently a by-law containing a provision for removing snow in the streets differing from the provision in the general statute of 1786, c. 81, concerning the laying out and regulation of highways, is not repugnant to this statute.</p> <p>A by-law of a city requiring the owners or occupants of houses bordering on streets, to clear the snow from the side-walks adjoining tlieir respective houses and lands, is not strictly speaking a by-law levying a tax; and inasmuch as the burden created by it is imposed on a numerous class, and upon all persons equally who come within the description of such class, and as they commonly derive a peculiar benefit from the duty required, and are peculiarly able to perform it with the promptness which the good of the community demands, the by-law is not partial and unequal within the sense of the provision in the constitution, that assessments, rates, and taxes imposed and levied on the inhabitants of the Commonwealth shall be proportional and reasonable; but such by-law is reasonable and valid.</p> <p>Such a by-law is not invalid on account of a part of the city peculiarly situated being expressly exempted from its operation.</p>

<p>In order to sustain a demurrer for want of jurisdiction, pleaded to the whole of a bill in equity, it must appear that no substantial and essential part of the complaint is within the equity jurisdiction of the Court,</p> <p>The plaintiffs in a bill in equity praying for an injunction, allege that a corporation8 was authorized by its act of incorporation, to build a dam over an arm of the sea, (the shores of which were owned by individuals,) and from this main dam to certain upland above it to run a cross dam, so as to make on one side of the cross dam a full basin, and on the other an empty or receiving basin, and to cut raceways from the full basin to the receiving basin, and to use, sell or lease the water power thus created ; that the corporation erected the dams and created thereby a water power sufficient to turn twenty pairs of common mill-stones, and performed all the duties required of them by the legislature, and thereby became entitled to certain exclusive privileges ; that the corporation, with the assent of the legislature, transferred all the water power and all their rights, privileges and duties respecting the same, to the plaintiffs ; that the plaintiffs thereby became entitled t tile exclusive right and privilege of forever using the soil included within the lim g of the full basin, for the purpose of flowing the same by the tide waters, and of keeping the soil included within the limits of the receiving basin uncovered by the tide waters, and of using it to receive and carry off the waters flowing from the full basin, and of holding and using all the water power which can be and is created by the dams, without any hindrance, obstruction or diminution of the capacity of the basins, or of the right to cut raceways in the cross dam ; and that the defendants, pretending to act under the authority of certain statutes, threaten to build a rail-road through the basins and over the cross dam, and have actually commenced building the same by driving piles in both of the basins, and that the building of it will diminish the capacity of the basins and destroy two mill sites on the cross dam, whereby the water power will be diminished and the franchise of the plaintiffs abridged. It was held, that the right of using the land of others in the basins, for the purpose of creating water power, was a franchise or easement ; that such a franchise or easement in the basins was sufficiently set forth in the bill ; that (he acts of the defendants in filling up portions of the basins for the purpose of making a rail-road, were, if illegal, a disturbance of the plaintiffs in the enjoyment of their franchise, for which the remedy at law would be an action on the case ; that such an injury is, in strict legal consideration, a nuisance, and therefore is within St. 1827, c. 88, giving this Court jurisdiction in equity in cases of nuisance ; that it did not appear on the face of the bill, that the plaintiffs had an adequate and complete remedy at law, and that the matter of complaint was a more fit subject for a bill in equity.</p> <p>To a bill in equity, in which it was alleged that the plaintiff was the owner of a water power, and that he had leased a part of it, and that the defendant had by a nuisance diminished the water power, the defendant demurred because the lessee way not made a party plaintiff; but as it did not appear on the face of the bill, tlw the interest of the lessee would be affected by the diminution of the water power there being a surplus beyond the quantity leased, the demurrer was not sustained</p>

<p>Assumpsit. The declaration contained two special counts and the money counts. The special counts set forth, that the plaintiff had consigned to the defendant a quantity of cherry tree lumber, for sale ; that the defendant promised to sell the lumber so consigned, to render an account and to pay over the proceeds; but that he had refused although requested so to do.</p> <p>The defendant pleaded the general issue.</p> <p>At the trial, before Wilde J., the plaintiff called as a witness, Isaiah Bangs, of the firm of Bigelow & Bangs. The witness, on cross examination, produced a letter from R. S. M‘Collum, dated August 1, 1833, and addressed to Bigelow & Bangs, enclosing an order or certificate from the plaintiff dated July 22, 1833, which slated, that the proceeds of lliu lumber in the hands of the defendant when sold, were to be." deposited in one of the banks in Boston for the use of M‘Collum. By this letter, Bigelow & Bangs were requested to call on the defendant and to have him pay the proceeds of the lumber to them, if sold, or of what was sold, and it not all sold, to close the sale as soon as possible ; the proceeds, when received of the defendant, to be deposited tccording to the directions in the order. The witness then testified, that the letter was received on the 6th or 7th of August, 1833, in the morning ; that he thereupon gave notice of the contents of the letter to the defendant; and that at some time on the 7th of August, the plaintiff and the defendant being at the counting-room of Bigelow Si Bangs, the witness showed them the letter and order, which the parties there examined and discussed.</p> <p>Lewis Mills, who was called as a witness by the plaintiff, testified, that on August 7, 1833, the plaintiff demanded of the defendant the unsold lumber, and requested him to settle and make out his account, the plaintiff saying, that he was ready to pay the defendant,'if there was any thing due to him ; that the defendant replied, that he had nothing to do with the plaintiff, (the. impression of the witness being, that he alluded to some transfer of the lumber,) and requested him to call on Bigelow & Bangs and see the letter from M‘Collum.</p> <p>The plaintiff relied upon an implied promise to account and pay over the proceeds, as resulting from the relation of the parties.</p> <p>The writ was dated on August 7, 1833, and was served on the same day.</p> <p>The defendant called Joseph Swett, as a witness, who testified, that, on August 7, 1833, towards evening, the defendant tendered to the plaintiff his account of sales of the lumber, requested him to pay the balance due for advances and expenses over and above the proceeds of the sales then made, and stated that he was ready to deliver to the plaintiff all the lumber then unsold, upon receiving such balance ; and that the plaintiff replied, that if the defendant would give up the Iurhber first, then he would settle with him.</p> <p>It appeared, that the defendant had received most of the lumber in December 1832; that he had sold it by retail until the demand made upon him by the plaintiff; and that soon after that, he sold 14,847 feet by wholesale, which was all that remained unsold. It was not contended by the plaintiff, that the defendant had not used due diligence and skill while he continued to sell the lumber by retail.</p> <p>The jury returned a verdict for the plaintiff.</p> <p>The defendant moved for a new trial, on the ground that the verdict was against evidence, in relation to the refusal to account, on the part of the defendant.</p>

<p>A bank is entitled to recover against the second indorser of a note discounted by the bank, although the indorsement of the name of the payee is a forgery, and although the note was offered for discount by the maker and not by the second indorser.</p>

<p>Where a loan was made by the cashier of a bank and memorandum checks received as security, it was held) that the cashier was a competent witness for the bank in an action by it against the drawer of such checks, although the transaction wee alleged to have been not conformable to banking principles, and the cashier had given bond for the faithful performance of his duties.</p> <p>It is not necessary, that a memorandum check should be presented for paynvnt to the bank upon which it is drawn, nor that a demand of payment should. Je made of the drawer before commencing an action against him.</p> <p>Where a printed blank check upon the North Bank «scu tillered by the substitution of the word 66 Market ” for c< North,” aov? the insertion of the word “ Memo.” and was then filled up in the usual Arm, it was held) that it was a memorandum check; and that there was no necessity for presenting it to the Market Bank for payment, although it appeared that the drawer did business there, and that a common check drawn by him for the same amount, would have been paid if presented. A promise by tj¡e drawer of a chock to pay it, is not binding, if made after it became due. and under an ignorance of the fact, that it had not been duly presented to the bank for payment.</p>

<p>This was case, to recover damages for injuries alleged to have been sustained by the plaintiff, in consequence of a defect in the bridge of the defendants.</p> <p>The declaration contained two counts. The first alleged, that on December 17, 1833, there was and for a long time had been a certain bridge and causeway from Boston to Cambridge, over which it was the right of all passengers to pass, paying the toll by law established and payable to the defendants ; that by St. 1806, c. 88, entitled “ An Act for incorporating certain persons for the purpose of building a bridge over Charles River, by the name of the Canal Bridge, and for extending the interest of the Proprietors of West Boston Bridge,” it was provided, that the bridge “ shall not be less than forty feet wide, with sufficient railings on each side, with a footway divided on each side from the carriageway on said bridge by proper railing, and that there shall be a suitable number of lamps put up on said bridge and causeway, not more than fifty feet distant from each other, and kept burning until midnight ; ” that on December 17, 1833, the plaintiff was passing over the bridge on foot, for which passage be was willing to have paid the toll by law established, and was proceeding over the bridge to the place by the defendants established for the receiving of the toll; that the defendants, well knowing the premises, but unmindful of their duty in that behalf, on that day, and for a long time before, did suffer the bridge to be without sufficient railings on each side thereof, and on one side to be wholly without any railing and without a footway divided on each side from the carriageway on the bridge by a proper railing, and the footway aforesaid to be wholly obstructed and impassable, and did, on December 17, 1833, in the night-time and before midnight of that day, suffer the bridge to be without the lamps thereof being lighted; that in consequence thereof, the plaintiff, in the night-time of that day, was precipitated into the river, and sustained the injury, which was the cause of the action. The second count alleged, that the plaintiff, on December 17, 1833, in the night-time, was travelling on foot upon a bridge and causeway leading from Boston to Cambridge, which bridge and causeway the defendants were by law bound to keep in repair, and in a state safe and convenient for travelling at all seasons of the year ; that a part of the bridge was greatly defective, the railing thereof being down and the footpath thereof obstructed, which defect, want of railing and obstruction the defendants had long and unnecessarily suffered to remain, endangering the lives of the citizens of this Commonwealth ; that by reason thereof the plaintiff was precipitated into the river, and suffered the injury which is the cause of this action; that the defendants, before and on that day, had due notice of such defect and want of necessary repair ; all which was contrary to the form of the statute in such case made and provided ; and that thereby and by force of the statute in such case made and provided, the defendants became liable to pay the plaintiff double the amount of the damages which he had sustained.</p> <p>The trial was before Wilde J., on the general issue. The jury returned a verdict in favor of the plaintiff, for the sum of $600 ; and upon being inquired of by the Court, upon what grounds the verdict was rendered, replied, that it was upon both the alleged grounds of complaint, to wit, the defect in the fence, and the omission to have the lamps lighted.</p> <p>The defendants thereupon filed a motion for a new trial, and assigned the following causes :</p> <p>1. Because the damages were excessive.</p> <p>2. Because the Court instructed the jury, in relation to the alleged negligence of the defendants in not having their lamps lighted, that the burden of proof was or) the detendants to show that there was no negligence ; whereas the jury should have been instructed, that the burden of proof was on the plaintiff to show such negligence.</p> <p>3. Because the verdict, so far as the jury found that the defendants were guilty of negligence in regard to the fence, was manifestly against the weight of evidence.</p> <p>Under the third cause assigned, the defendants insisted that there was a variance between the allegations in the writ and the evidence adduced in support of them, in this, that the declaration alleged the injury to have been sustained in consequence of a defect in the railing of the bridge, whereas it appeared from the evidence, that the plaintiff fell overboard by reason of a defect in the fence on certain new made land on the south side of the bridge.</p> <p>In regard to this point, it appeared from the evidence, that the bridge had become so defective as to require to be taken up ; that the new made land was provided by the corporation and used as the common travelling path ; that a portion of the south footway, about thirty feet in length, was removed, together with the railing on both sides, through which opening the travel passed from the bridge to the new land ; that foot passengers took indiscriminately this footway or the new land ; and that the new land was inclosed by a rough fence, through an alleged aperture in which the plaintiff passed and fell overboard.</p> <p>The defendant also filed a motion in arrest of judgment, and assigned the following causes:</p> <p>1. Because in the first count in the declaration, an action on the case at common law is set forth, and in the second count, an action founded on a statute; whereas these counts cannot be joined in the same declaration.</p> <p>2. Because it is not alleged in the declaration, that the defendants were the proprietors of the bridge and causeway therein mentioned, or that they had any interest in or control over the same, or any right to receive tolls for passing over them, or that they were under any legal obligation to keep the same lighted or in repair ; nor are any facts • or circumstances therein stated, from which such liability might be nferred</p> <p>3 Because it is not alleged in the declaration, that the bridge and causeway authorized to be made by the statute mentioned in the first count, were ever built, or that the bridge mentioned in the declaration was built by the defendants under or by virtue of the statute.</p> <p>4. Because it is not alleged in the second count, what kind or manner of bridge is the one therein mentioned; nor whether the same is public or private ; nor that the plaintiff had any right to pass over the same ; nor that the defendants were under any obligation to keep the same in repair.</p> <p>5. Because the supposed cause of action is alleged in the second count to have accrued to the plaintiff by force of the statute m that case made and provided ; whereas the same accrued, if at all, by force of several and different statutes.</p> <p>6. Because the supposed legal liability of the defendants to repair the bridge and causeway, as alleged in the second count of the declaration, exists, if at all, by reason of St. 1806, c. 88, which is a private and not a public statute; and the same is not set forth or in any wise alluded to, in the second count.</p> <p>7. Because it did not appear, that the towns in which the bridge and causeway were situate, were exempted from the duty of keeping the same lighted and in repair.</p> <p>8. Because the two counts being substantially different, as setting forth different causes of action, and the evidence being applicable to both, and incapable of distinct application to each separately, and the verdict being general, the Court cannot render judgment upon either count alone, and the same judgment cannot be rendered on both.</p>

<p>This was a real action brought by the demandants, as heirs of Abraham Burrall, to recover their distributive shares oi one half of about seventy acres of land in Sheffield.</p> <p>At the trial before Morion J., the demandants produced the deposition of Samuel Austin, junior, who resided in New York. This deposition, which was taken by virtue of a commission issued from this Court, was inclosed in an envelope directed to the Court, and sent to Robert F. Barnard, Esq., the counsel for the demandants, by whom it was opened. Mr. Barnard made affidavit, that he opened the envelope without P-owf ig that it inclosed the deposition. The tenant objected to the admission of the deposition, but the objection was overruled. The jury returned a verdict for the demand-ants. If the deposition *“ss admissible, judgment was to be entered on the verdie, , otherwise a new trial was to be granted.</p>

<p>An insolvent debtor assigned his property for a consideration alleged in the assignment to have been paid “ by bond and notes.” The assignee, for a part of such consideration, gave a bond conditioned for the payment of the debts of the assignor specified therein ; and for the residue he gave four promissory notes, which, it was proved, were placed in the hands of the assignor. It was held, that the assignment was void as against attaching creditors.</p> <p>The assignee, in such case, was served with a trustee process at the suit of a creditor of the assignor, and subsequently the property itself was attached by another creditor. It was held, that as the assignment was void, the assignee had no right to retain possession of such property in order to respond to the judgment which might be recovered against him on the trustee process ; for the goods were bound by such process, in the hands of the attaching officer, as well as in those of the trustee.</p> <p>If a person having in his store the goods of a stranger, refuses to permit an officer to enter the store for the purpose of attaching the goods, on a writ in favor of a creditor of the owner of the goods, the officer is justified in breaking it open for such purpose.</p>

<p>This was case against a deputy sheriff for not taking on execution an ox, which he had returned as attached by virtue of a writ issued in favor of the plaintiff against John Y. Hartendien, the return alleging, that the ox was the property of Harrendien.</p> <p>At the trial in the Court of Common Pleas, before Cummins J., upon the general issue, it was proved by the plaintiff, that the defendant was directed by an indorsement on the writ against Harrendien, to “ attach properly or make no service.”</p> <p>The defendant offered to prove in defence, that the ox attached was, at the time of the attachment, the property of Nathan Putnam, to whom it was mortgaged by Harrendien previously to the passage of Si. 1832, c. 157, providing that mortgages of personal property shall not be valid against third persons, unless the property be delivered to the mortgagee, or unless the mortgage be recorded.</p> <p>The plaintiff objected to the admission of this evidence, on the ground, that, as he had directed the defendant to “ attach property or make no service,” the defendant had his election, and could not now contradict his return, by proving that the property attached did not belong to Harrendien. This objection was overruled.</p> <p>It further appeared, that in 1832, after the attachment was made, the ox in question, together with three others, were again mortgaged to Putnam, to secure him against various liabilities, among which was included the liability which he might incur by receipting to the defendant in this case for the ox in controversy ; and that this mortgage was duly recorded, in pursuance of the statute. It was proved by the testimony of Putnam, that the subsequent mortgage was not to supersede the previous mortgage ; and that the ox in question was sold under the first mortgage.</p> <p>It did not appear that the plaintiff was apprized of the claim of Putnam during the whole progress of his action against Harrendien, either by Putnam or the defendant, although Putnam was the attorney of Harrendien, in such action. Nor did it appear that Putnam had notified to the defendant, that he had any title to the property, nor that he reclaimed it as his own, up to the time when the second mortgage was made.</p> <p>The plaintiff objected, that inasmuch as Putnam knew of the attachment, and did not disclose his title to the property, either to the defendant who attached it, or to the plaintiff, his title thereto was void, on the ground of fraud, and the defendant could not now show, that such property, at the time «f the attachment, belonged to Putnam, and not to Harrendien, but this objection was also overruled.</p> <p>The jury returned a verdict for the defendant.</p>

<p>This was an action to recover the amount of a book account.</p> <p>At the trial in the Court of Common Pleas, before Strong J., the defendant offered as a witness, George Nichols, who testified, that upon the sale of a horse to the plaintiffs, by the witness, it was agreed between them, that $20-46, part of the price, should be applied in part payment of this account, and that the defendant should accordingly pay that sum to the witness ; and that the defendant did pay such sum to the witness, in pursuance of the agreement. The plaintiffs objected to the admission of the witness, on the ground of interest.</p> <p>The plaintiff offered evidence to prove that it was stipu lated, at the time of the sale of the horse, that the sum of $20-46 should be applied in payment of a debt due from one Kelton to the plaintiffs, the defendant and George Nichols having previously agreed to pay such debt.</p> <p>The jury were instructed, that George Nichols, was a competent witness, and that the objection of the plaintiffs to his admission went to his credit only. The jury returned a verdict for the defendant. The plaintiffs excepted.</p>

<p>An indenture of copartnership between C., J., B. and W, dated April 2, 1832 after providing that the copartnership should continue during the term of five years, set forth, that C. had “ delivered in a stock or capital, a cotton factory with all the machinery, tools and the privileges belonging to the whole that C., J. and W. were to “ put in new machinery fit and proper to be had and used in and about the said cotton factory, a schedule whereof is hereafter to be annexed, which said contemplated new machinery shall be of the value of $3000 that B. had “delivered in a capital or stock, the sum of $1000 that the factory and new machinery were to be kept in repair by the parties, in equal shares ; and that it was agreed by the parties, “that the factory and all the machinery, at the end and expiration of the said five years, shall be the joint property of C., J. and W. only, B. then having no interest therein, B., at the end thereof, to have the sum of $1000 in money, and the profits, if any, to be divided equally between the parties, and if found in arrear and indebted, to bear the loss equally alike.” In January 1833, the partnership was dissolved, and subsequently the parties assigned to the plaintiff, who knew of the dissolution, “all their right and title in and to all and singular the rights, privileges and interest secured to them by the ” indenture. It was held, that by this assignment all the property passed, which, at the time of the assignment, was partnership property, whether it formed a part of the original partnership stock, or was acquired subsequently, to be held and used by the plaintiff during the residue of the five years then unexpired ; and that the operation of the assignment was not affected by the dissolution of the partnership, the assignment being made by all the partners.</p> <p>In the same case it appeared, that a portion of the partnership property was taken away by a stranger. It was held, that, as the plaintiff was answerable over to the owners thereof after the expiration of the five years he was entitled to recover against such stranger, its full value.</p>

<p>Money in specie may be attached and taken in execution ; but in levying the execution thereon a sale is unnecessary. [See Revised Stat. c. 97, § 19, 20, 21.] Where money in specie paid over to an assignee under a fraudulent assignment was attached as the property of the assignor, the attachment was held valid.</p> <p>A witness, in reply to a question as to the situation of J. H. in regard to property, testified, that “ he was considered in good circumstances as to property.9* It was held, that this was hearsay evidence, and therefore incompetent.</p>

<p>Assumpsit. The writ was dated January 27, 1834. By the answer of the trustee it appeared, that at the time of the service of the writ, he was indebted to the defendant in the sum of $25 ; that on January 10, 1834, the defendant and Levi Vos-Durgh, of Hillsdale in New York, as members of the late firm of Bagiey and Vosburgh, and the defendant, in his individual capacity, and also as member of the late firm of Hinman & Bagiey, assigned to Nicholas Hollenbeck and Lewis Haywood, who were likewise inhabitants of Hillsdale, all the books of account, notes, obligations and evidences of debt, belonging to the defendant or either of the two firms, with full power to collect the debts and demands, in trust to apply the proceeds thereof, proportionably, to the indemnification of the assignees and certain other persons named, who had become indorsers or sureties for the defendant and the two firms; and that on June 14, 1834, notice of such assignment was given to the trustee.</p>

<p>Petition for certiorari. Samuel Rosseter, of Great Bar rington, having been taxed in 1833, by the assessors of that town, for stock owned by him in the Columbia Turnpike Corporation in the State of New York, the county commissioners, upon his application, ordered the tax to be abated ; whereupon the town presented this petition, alleging that the abatement was illegal. The road runs from the city of Hudson to the boundary line of Massachusetts. The turnpike corporation own the land under their road. Their capital stock and other property has been taxed annually by the State of New York.</p>

<p>A joint and several promissory note of J and S, who had been partners, made payable to a bank, for the purpose of being discounted in order to pay partnership debts, was delivered by J to one of his separate creditors, J stating that the cashier declined discounting it but said it should be discounted in a short time. The bank however refused to discount it, or to indorse it without recourse, or to give permission to the creditor to commence an action upon it in the name of the bank, the directors declaring, that they were determined to stand impartial between the parties. A bond of indemnity against the costs of such an action was sent to the bank, and filed away therein, but the subject was not acted upon by the directors. It was held, that no action could be maintained upon the note in the name of the bank, by the creditor, without its consent, express or implied; that the consent of the bank could not be implied from these circumstances ; that even if the bank had consented thereto, such action could not be maintained, because the bank refused to discount the note, and consequently there never was any valid contract between them and the makers thereof; and that no action could be maintained by such creditor in any form against S, it being fraudulent in J to appropriate it for the payment of his separate debts.</p>