Volume 34 — Massachusetts Reports

<p>in trover, the value of the property when converted, with interest from that time, is in general the measure of damages, and if the property is restored, it goes in mitigation of damages; but if the restoration is obtained by the offer and payment of a reasonable reward, tills amount, with interest from the time of payment, is to be deducted from the property restored.</p>

<p>It cannot be pleaded in bar to a writ of right, that in an action of an inferior degree between the same parties, in which the right of possession of the demanded premises was put in issue, this right depended entirely on the mere right of property, and that the question of the mere right of property was submitted to the jury, and decided against the demandant, and that judgment was rendered according to the verdict.</p> <p>But a fact which is directly put in issue by the pleadings in the action of inferioi degree, and established by the verdict and judgment, will conclude the parties in the writ of right.</p>

<p>Where a father, being seised of land, conveys it with warranty to the tenant, and dies leaving a daughter his sole heir, with assets by descent to a greater value than the land, and she intermarries with the demandant, the demandant is rebutted from claiming the land under a title paramount to that of her ancestor, for in case of a recovery the tenant would have his action against the demandant and his wife upon her ancestor’s covenant, to recover the value of the land. Such a defence may be pleaded, or may be given in evidence under the general issue.</p>

<p>This was a bill in equity, Bled May 30, 1833. The bill alleges, that the plaintiff and one Blake are seised in fee, as tenants in common, of an ancient mill site on Mill river, in Springfield, of the saw-mill thereon standing, and of the dam across the river, and of the exclusive right to the use of the stream, at the dam, and above it as far as the tail of the mill next above on the same river ; that the defendant Rice, about August 1, 1832, erected a shop on the [south] shore opposite and a little below the saw-mill, for the purpose of manufacturing lead pipes and for other uses, and, against the remonstrances of the plaintiff, cut a channel or flume through the rocks and soil around the southerly end of the dam where it abuts against the southerly bank of the river, opposite the saw-mill, and cut down the embankment of the pond above the dam, about two feet deep and about two feet wide, by which he drew and diverted, and continues to draw and divert, water from the pond to the wheels and machinery in his shop, thereby preventing the water from flowing to the saw-mill, for the use thereof, as the proprietors of the saw-mill and dam had, and still have, a right to have the same flow and be used, and depriving them of the exclusive privilege of the stream ; that these acts of Rice will injure and depreciate the value of the saw-mill, mill site, and privilege, and that the dam will become undermined and the southerly bank where the water is drawn off by Rice will become broken and ruinous ; and that Blake has refused to become a party complainant in the bill, and has confederated with Rice to injure the plaintiff, and has given Rice license and authority for committing the acts complained of:—And the Dill prays that Rice and Blake may be required to answer, &c., and that Rice may be enjoined to abstain from turning the water into the channel cut by him, and to fill up this channel, and to restore the bank and the abuttal of the dam to as good and secure a condition as they were in at the time immediately before the committing of the trespass alleged, and to make full compensation to the plaintiff for the damages he may have sustained.</p> <p>In September, 1833, Rice filed an answer, in which he alleges, that, before the committing of the supposed grievances, be was, and now is, seised in fee and possessed of the land lying south of and adjoining the river opposite to the mill site and saw-mill, and extending above and below the dam, and extending also to the thread of the river, and was then, and now is, seised in fee of the right to a moiety of the water of the river at the dam, and to such portion of the dam as was and is so upon his land; that all the time he was so seised, and up to the time of filing the bill, the dam was built and kept up as high above the bed of the river there as he and other joint owners thereof had a right to have the same built and kept, and as high, he believes, as the owners had from time immemorial built and kept it ; that on March 10, 1818, Jonathan Dwight junior and James S. Dwight were seised in fee and in common of fourteen twenty-fourth parts of the miz site and saw-mill and the privileges thereto belonging, ana Jonathan Dwight junior was also seised in fee of the tract o land now owned by this defendant, on which his shop, channe and flume are situated, and that on that day Jonathan Dwight junior conveyed to one M‘Gregory, in fee, the land owned by this defendant, together with the privilege of taking the water from the top of the old saw-mill dam in a conductor of the same size theretofore used, to lead the water from the dam to a shop on this land, and from the same place in the dam, fourteen days out of every twenty-four, and no more, without injury to the saw-mill; that on the fourteenth of the same March, Jonathan Dwight junior and James S. Dwight conveyed to Blake the fourteen twenty-fourth parts of the mill site, mill, and privileges thereto belonging, reserving howevez to M‘Gregory, his heirs and assigns, the right of taking the water from the top of the dam in the manner theretofore taken by Asher and Pliny Bartlett, in a conductor there placed, and as specified in the deed to M‘Gregory ; and thereupon this defendant says he is informed and believes, that before the date of the deed to M‘Gregory, the surplus water of the pond, down to the top of the dam, had been accustomed to be drawn at the pleasure and will of the owners of the land conveyed by that deed, for and during fourteen out of every twenty-four days, when Jonathan and James S. Dwight, and those under whom they claimed title, had, by the usage and understanding before recited, the exclusive occupancy and use of the saw-mill and its privileges ; that about the 17th of August, 1831, Edmund Dwight, being seised in fee of the right to take water so conveyed to M‘Gregory and of the land on which this defendant’s shop, channel, flume and the south end of the dam are situated, conveyed the same to the defendant, with all the rights and privileges thereto belonging. This defendant then admits that about August 1, 1832, he erected a shop as alleged in the bill, and cut a channel on his land through the rocks there, beginning about eight feet above the ■top of the south end of the dam and passing several feet south ■of the south end of the dam, and cut down the natural soil or .'hill of rocks forming the embankment of the pond above the ■dam, about eighteen inches deep and two feet wide, and about 'twelve feet long, and constructed from the end of the channel ■so cut, a substantia] flume of plank, open at the top, (and the top of which is higher in all its parts than the top of the dam,) and -extending to his shop, for the purpose of conducting water from the pond to the water wheels and machinery in his shop, and that he has thereby occasionally, from the 1st of August, 1832, to the time of filing the answer, drawn water from the pond to his water wheel; but he denies that he has thereby diverted from the saw-mill the water which ought of right to flow there. This defendant further says, that for a great number of years past, there have been several proprie - tors of the saw-mill and of the privileges thereto belonging, as tenants in common, and that they have, by agreement and understanding among themselves, each occupied the same exclusively for a given number of days, according to the proportions of the interest of the several owners, assuming twenty-four days as the whole number allotted to all ; and that for many years past and up to July 9, 1833, the plaintiff and Blake have occupied the same and in the same manner, and Blake, with the plaintiff’s consent, has occupied the same exclusively fifteen out of every twenty-four ; and that Blake, being so tenant in common of fifteen twenty-fourth parts of the saw-mill and its privileges, did so far as he might by possibility have any right to object thereto, give this defendant license and authority to cut the channel, and to draw thereby as much water as he should choose to draw, for the use of his shop and machinery, during the fifteen days in each twenty-four days when Blake should have a- right to the occupation of the saw-mill, and at all other times so much water as this defendant might wish to draw, provided that at such other times he should draw only the surplus water or such as would otherwise flow over the dam, and should not draw the water which otherwise might be used in the operation of the sawmill ; and that this license and authority was continued until July 9, 1833 ; and this defendant admits, that he has drawn the water by means of the channel, according to this license and authority, but not otherwise ; and he alleges that, before he began so to draw water, he put in his flume a close gate, capable of preventing the passing of water, and that he has always kept it well closed except when he has drawn water pursuant to the license. And this defendant denies that he has by his acts injured and depreciated the value of the sawmill, mill site, or privilege, or that the dam will thereby become undermined, or that the bank on the southerly side of the river will become broken and ruinous, or that the plaintiff has sustained, or will sustain, any damage in the diminution of water that ought to flow to the saw-mill. And this defendant further states, that on July 9, 1833, Blake conveyed to this defendant in fee, fifteen twenty-fourth parts of the sawmill and mill site, and of the privilege of water and other privileges thereto belonging, with any right Blake had of abutting a dam on the south shore, by virtue of which conveyance this defendant became seised in fee and in common with the plaintiff.</p> <p>B.ake also filed an answer.</p> <p>Much evidence was introduced by the parties for the purpose of showing their respective rights, whether arising under actual grants or by prescription ; and the case was elaborately argued in writing, by Wells and W. Bliss, for the plaintiff, and I. C. Bates and G. Bliss, for the defendant Rice. The opinion of the Court recites as much of the evidence as is requisite for understanding the points of law decided.</p> <p>For the defendant Rice, it was, among other things, contended, that on the supposition of a lost deed from the proprietor of the south shore to the proprietor of the north shore, authorizing the erection of the dam, the grant must be limited by the user, and consequently the latter had a right to abut a dam on the south shore, raise a pond, and use water sufficient for a saw-mill; but it could not be presumed that such a deed gave a right to exclude the riparian proprietor on the south side of the river, from using water (not however exceeding half of the stream) which was not wanted or used for the saw-mill. 3 Kent’s Comm. (1st edit.) 356 ; Angelí on Water-Courses, 48 Bealey v. Shaio, 6 East, 219 ; Saunders v. Newman, 1 Barn. &t Aid. 261, 262 ; Stiles v. Hooker, 7 Cowen, 266 ; Curtis v. Jackson, 13 Mass. R. 507 ; Martin v. Goble, 1 Campb. 320 ; Brown v. Best, 1 Wils. 174. The erection of a dam across a river by the owner of one shore, is not an appropriation of the whole water, but the appropriation is coextensive only with the use. The proprietors of Locks and Canals on Connecticut river have erected a dam across the river in order to supply their canal, but can it be supposed that they have thereby appropriated the entire water of the river, so that no one else can use it on either side ?</p> <p>Mere lapse of time will not, of itself, as against the owner of a right, raise a presumption of a grant ; Gray v. Bond, 2 Brod. & Bingh. 667 ; and here circumstances existed which prevented the running of a prescriptive title. The use by the saw-mill proprietors was not adverse. The witnesses state that the south bank is steep, rocky and abrupt. The owners of that shore have bad no occasion to use any water there, or to exercise any of their riparian rights, until this contest arose ; and they could not previously be injured by the uses to which the proprietors of the saw-mill appropriated the water. Angelí on Water-Courses, 70, 71; Cooper v. Barber, 3 Taunt. 99 ; Sargent v. Ballard, 9 Pick. 251 ; 3 Stark Evid. 1216 et seq. ; Jackson v. Sharp, 9 Johns. R. 167 First Parish in Medford v. Pratt, 4 Pick. 222 ; 3 Dane’s Abr. 252.</p> <p>The easement claimed against the defendant has been extinguished by unity of possession and title of the land on both sides of the river. The evidence shows, that within twenty years the greater part of the estate on the north side has beer, owned by the proprietor of the land on the south shore. Nor is it material that there has not been a union of the entire title on both sides. The entire estate on the south side having been owned by a tenant in common of that on the north side* there was no one who could be presumed to be assenting to the acquiring of an easement against the estate on the south side. But if, in order to extinguish the entire easement, there must be a union of the entire titles on both shores, then as the evidence shows that two of the shares owned by the plaintiff were owned within twenty years by the proprietor of the south shore, the prescriptive right is extinguished as to those two shares.</p> <p>Admitting that, at the time of the grievances complained of, the plaintiff and Blake had a prescriptive right to the whole water of the stream, they were entitled to use it either for the saw-mill or for other purposes, in the proportions of nine twenty-fourths and fifteen twenty-fourths ; and if the plaintiff did not choose to use any, Blake had a right to use all; or if the plaintiff chose to use what was wanted for the saw-mill only, Blake had a right to use the residue. If Blake had this right to use the water himself, he had an equal right to authorize any one else to do it; and under these circumstances he gave Rice the license set forth in the answer.</p> <p>It may be objected, that Blake, on account of his relation as tenant in common, could not give the license ; but this objection is obviated by the fact, that according to an immemorial usage, the plaintiff and Blake were entitled to occupy in severalty by days, and exclusively, according to the extent of their interests.</p> <p>The damages, if the plaintiff is entitled to recover any, should be calc jlated only up to the time of filing the bill, or, at most, of filing the answer. If the plaintiff may give evidence of acts of trespass done after the bill is filed, and not alleged in it, he deprives the defendant, not only of the privilege of averring in his answer, facts and circumstances in justification or palliation, but deprives him of the benefit of his oath in proving them.</p> <p>The depositions of Warriner and Pease, in relation to damages, are inadmissible, on the ground of interest in any damages which may be recovered. Warriner states, that under a contract with the plaintiff, of January 1, 1834, he tends the saw-mill, and has for bis compensation $1*25 for every thousand feet which he saws ; that “his profits depend upon the quantity of work done and the capacity of the mill to do work, and. they are affected by the increase or diminution of the water during the time the deponent works.” He is pai pably interested, if he may testify as to acts done by the defendant after January 1, 1834. Pease testifies that he was, “ until very recently,” under a. similar contract with the plaintiff, made in 1831. He had a direct interest in all dam ages claimed arising before and after the bill was filed.</p> <p>For the plaintiff it was contended, that the right to erect the dam was acquired by his predecessors, under an ancient grant by the town of Springfield ; that the evidence was sufficient to establish this right on the ground of adverse possession ; that by erecting the dam, whether under an actual or a presumed grant from the owners of the south shore, the-owners of the saw-mill became entitled to the entire water privilege ; that the extent of their right was to be measured by their appropriation, and not by their actual use of the water; though here, upon a reasonable construction, the appropriation and the use had been co-extensive ; that the portion of water which flowed over the dam contributed to t the effective power of the pond, and was a part of the appropriation ; Tyler v. Wilkinson, 4 Mason, 397 ; Bullen v. Runnels, 2 New Hamp. R. 255 ; 3 Kent’s Comm. (1st edit.) 358, 359 ; Stiles v. Hooker, 7 Cowen, 266 ; St. 1795, c. 74, § 1 ; that if the presumed grant, in a case of prescription, is made with any restriction or limitation, the burden of proof is on the party alleging the restriction or limitation ; Finch v. Resbridgei,' 2 Vern. 391 ; Belknap v. Trimble, 3 Paige, 591 ; that a right <o a water-course is not extinguished bv unity of possession, but the plaintiff was not obliged to resort to this principle, for here there was no such unity of possession as would destroy any easement, because it did not appear that at any time since the erection of the dam, the owners of the north and of the south shore have been the same persons ; that notwithstanding the alternate occupancy of the saw-mill by the plaintiff and Blake, they remained tenants in common, a partition by parol being void ; and that one tenant in common cannot prejudice his co-tenant, and Rice therefore could not justify cutting his channel, or using any of the water during the plaintiff’s turn, either under the license from Blake, or by virtue of being tenant in common subsequently to Blake’s conveyance to him ; Porter v. Hill, 9 Mass. R. 35 ; Colton v. Smith, 11 Pick. 315.</p>

<p>Writ of entry to recover a parcel of land containing about five acres, recently formed by alluvial deposits on the margin and bed of Deerfield river. The land lies and has been formed in a bend of the river curving southerly and easterly from the river. The case was tried before Shaw C. J.</p> <p>The demandants claimed the land in question, as owners of the land on the east bank of the river, at the time of the accretion. The tenant claimed to hold it as an accretion to his own land lying higher up on the southerly and easterly side of the bend of the river.</p> <p>One question reserved for the opinion of the whole Court, was, whether the demandants had proved their title to the land on the east bank of the river, in virtue of which title alone they could claim the accretion. This depended almost exclusively on the early records of the proprietors of the township of Deerfield, and the town and the parish surveys, grants and other documents.</p> <p>The tenant contended, that supposing the demandants’ title O the land on the east bank to be established, still it would not entitle them to any part of the alluvial formation, because he maintained that he and those under whom he claimed, had been in possession of some part of the alluvial formation for near sixty years ; and that as it commenced making on the southwesterly side, it had never reached the east bank of the river, .and therefore it could not be said to be an accretion to it. It was testified that between the eastern bank of the river and the alluvial land- in controversy, there is a low place into which a small brook falls ; and that often there is water in it, but that sometimes it is dry.</p> <p>If the Court should be of opinion that the demandants were entitled to recover any part of the land in controversy, the amount and proportion to which they were entitled was to be determined by an assessor or commissioners, conformably to such rules as the Court should establish.</p>

<p>Bill in equity to redeem, brought in 1831, against Justin W. Clark, Samuel Partridge, Cotton Partridge and Eli Cooley. The bill alleges, that Hezekiah W. Strong, in 1803, was seised and possessed of two tracts of land in Deerfield, one, situate on East mountain, the other, called the Arnold farm, and that he then, by his deed duly executed and recorded, mortgaged them to the Boston Bank, as security for the payment of 500 dollars ; that on May 8, 1812, by his deed with covenants of warranty and against all incumbrances, he conveyed the East • mountain tract to Oliver Cooley, for a valuable consideration, and that the right, to redeem this tract is now owned by the plaintiff, by virtue of conveyances from O. Cooley and others claiming under him ; that on July 7, 1817, the Partridges, being then, by a title derived from Strong, the owners of the right to redeem the Arnold farm, conveyed the farm to Eli Cooley, with covenants of warranty, and of freedom from all incumbrances, and that by this conveyance Eli Cooley became the owner of the farm, subject to the mortgage to the bank ; that Strong became insolvent on May 1, 1827, and has so continued ever since ; that the defendants or some of them conspired with the intent to defraud the owner of the East mountain tract, by charg.ng upon it the whole sum then due on the mortgage, and to protect the owner of the Arnold farm from contributing his just share towards the payment of the mortgage, and thus to protect the Partridges from liability by reason of their covenants ; that for this purpose, Clark, as the agent and trustee of the other defendants or some of them, purchased (be mortgage, by paying to the bank the sum due thereon, and the bank thereupon, on February 20, 1828, assigned the mortgage to Clark ; that on September 1, 1829, and within three years before the bill was brought, Clark, by virtue of a judgment, entered into possession of the East mountain tract for condition broken, and that he has been in the receipt of the rents and profits ever since ; that Clark has never disturbed Eli Cooley in the possession of the Arnold farm, nor demanded of him that he should contribute any thing towards the redemption of the mortgage; that in May 1831, the plaintiff requested and demanded of Eli Cooley, that he. should unite with the plaintiff in the redemption of the mortgage, and demanded, in writing, of Clark, that he should truly state his account of the money due on the mortgage, and of the rents and profits, and of the expenses for repairs and improvements, and should state the sum equitably due from the plaintiff provided the owner of the Arnold farm should contribute his equitable share towards the redemption, and that he should accept the plaintiff’s share and discharge his lien upon the plaintiff’s tract, the plaintiff then offering to pay his share ; that the plaintiff also offered to pay the whole sum due on the mortgage, provided Clark would assign the mortgage to him; that the plaintiff also requested the Partridges to cause Clark to comply with the plaintiff’s demands and requests, and requested them to state an account; that all these requests and demands were refused by the defendants respectively ; that to the plaintiff’s demand, Clark returned the following answer : — “ Hatfield, May, 24, 1831. To Frederick H. Allen. Sir : In compliance with your request in writing, dated May 16, 1831, demanding an account of the money due me on mortgage from Hezekiah W. Strong to the Boston Bank and assigned by said Bank to me, not being able to state the precise amount of mortgage money due, you are referred to the judgment spoken of in your notice as recovered by me in the Court of Common Pleas, November term 1828, Greenfield, County of Franklin, against one Oliver Cooley. No part of said mortgage money has been paid since said judgment. As to the rents and profits, I have received the same but one year, which after deducting taxes, expense of fencing, agencies and commissions, amount to ten dollars and forty-four cents. I have contracted out the mortgaged premises the current year for nineteen dollars, which sum, in case you redeem immediately, you will be entitled to when received, for which I have taken negotiable paper payable at the first of November next, without interest till due, and which will be handed over upon payment of the mortgage money, after deducting the rents and profits, first abating the above charges. Yours, &c. J. W. Clark,” — that this pretended answer is wholly insufficient to answer the requisition of law, as it does not state how much is due on the mortgage, nor the amount of the rents and profits réceived by Clark, and of the expenses for repairs and improvements. The bill prays that Clark and the Partridges may be compelled to render an account, and that Eli Cooley or the Partridges may be decreed to unite -with the plaintiff in the redemption of the mortgage, by contributing in proportion to the relative value of the two tracts, or that Clark may be decreed, upon payment of the plaintiff’s share, to discharge the mortgage so far as it regards the plaintiff’s tract, or that Clark may be decreed, upon payment of the whole sum due on the mortgage, to assign the mortgage to the plaintiff, so that he may be enabled to compel a just contribution by Eli Cooley.</p> <p>In an .amendment to the bill the plaintiff alleges, that Strong, on Feb. 12, 1812, conveyed the Arnold farm, with covenants of seisin and warranty, to Cotton White, taking back at the same time a mortgage of the farm, conditioned for the payment of the whole amount of the purchase money, which mortgage was wholly unpaid on May 8, 1812, when Strong conveyed the other tract to Oliver Cooley ; that on the same 12th day of February, White conveyed the farm to C. Crafts, taking back a mortgage for securing 900 dollars ; that on February 3, 1817, the right in equity of Crafts to redeem the farm was sold on execution to the Partridges, and on July 7, 1817, they purchased and took an assignment ol the mortgage to White.</p>

<p>Certioraii lies to the Court of Common Pleas to revise their proceedings in the case of a complaint by the owner of land against a mill owner for flowing the land, except in the particular cases mentioned in St. 1797, c. 63, § 2, in which an appeal is given.</p> <p>On a complaint against a mill owner, for flowing the complainant’s land by means of a dam erected in 1825, the parties agreed before the sheriff and jury, not to go back further than 1820, in their inquiries in relation to the condition and produce of the land ; the respondents nevertheless offered in evidence the deed of the land to the complainant, dated in 1816, to prove the value at that time, and further offered to prove that in 1825 the land was in the same condition as in 1816. Held, that the deed was inadmissible, as being irrelevant, and also as being excluded by the agreement.</p> <p>The owner of land a part of which is flowed by means of a mill-dam, may, by reason of the situation of the part flowed in relation to the other part, sustain damages beyond the value of the land actually flowed, and on a complaint for flowing he may produce evidence to prove the full extent of the damage.</p> <p>On such a complaint the respondent cannot give in evidence by way of set-off to the damage done to the land flowed, the consequential benefits resulting to the complainant from the erection of the dam, by reason of an increase of population, markets, schools, stores, and other improvements in the vicinity.</p> <p>But the proper rule seems to be, to estimate the pecuniary loss arising to the proprio • tor from the direct injury done to his land taken as a whole, by flowing, deducting therefrom any benefit which may be done to the same land by the same cause, namely, by flowing.</p> <p>In assessing the annual damages on such a complaint, regard is to be had, not to the condition of the land as it may have been affected by maintaining the dam several years preceding ihe date of the complaint, but to the condition of the land at the commencement of the injury, and as if no dam had been erected.</p>

<p>Assumpsit for the support of William Mather and Rhoda his wife, from May 28 to September -3, 1833. Trial before Morton J., upon the general issue.</p> <p>It was admitted that Mather and his wife were paupers legally settled in Southwick. The plaintiffs had paid nothing for their support, and it was contended by the defendants that the plaintiffs were not liable to pay for it. They were living in Westfield, at the house of R. Brown, who had married their daughter, and who furnished their support. The de fendants had paid Brown for their support up to May 28, 1833. On that day one of the overseers of the poor of Southwick proposed and offered to remove them to the place where all the paupers of Southwick were supported by contract, namely, to one Holcomb’s in Granby, in Connecticut, eight miles from the centre of Southwick. Brown forbade the removal of the paupers to Holcomb’s, but made no objection to their being taken to Southwick. The same overseer then forbade the overseers of Westfield, and Brown also, to render any assistance to the paupers on account of Southwick. On June 10th, Brown gave notice to one of the overseers of Westfield, that he was supporting the paupers and should look to Westfield for his pay ; and these overseers then sent a sufficient notice to the overseers of Southwick, which was duly received. In the same two of the overseers of Southwick went to Brown’s to remove the paupers to Granby. Brown did not object to their removal, but the paupers refused to go. They were not removed, but the overseers gave notice to Brown, and also to the overseers of Westfield, that they were ready to remove them whenever they would go, and to make suitable provision for them ; and they forbade Brown to harbor them or render them any assistance at the expense of Southwick.</p>

<p>The former owner of a mill is liable, under the statutes passed for the regulation of mills, for damage occasioned by flowing land while he was the owner of the mill, although at the time when the complaint was filed he had ceased to be the owner or occupant thereof.</p> <p>In such case, the owner of the land may recover for the past damages only, although both past and future damages were claimed in the complaint.</p> <p>Under the statute of the United States, passed April 14, 1802, providing that the children of persons who then were or had been citizens of the United States, should, though born out of the limits of the United States, be considered citizens, it was held, that the child of a father who was a citizen of the United States . after the treaty of peace with Great Britain by which the independence of the United States was acknowledged and after the adoption of the constitution of the United States, was not an alien although born without the limits of the United States.</p> <p>A person in possession of land under a deed, claiming title, may maintain a complaint against a mill-owner for flowing, although such title be defeasible.</p> <p>The flowing of land by a mill-owner is not a disseisin of the owner of the land; and therefore if such flowed land is conveyed by the owner, the grantee may maintain a complaint against the mill-owner for damage done by such flowing. •</p>

.Trespass quare clausum fregit. The declaration ret forth, that the defendant, on October, 9, 1833, with force and arms, broke and entered the plaintiff’s close, lying adjacent to Westfield river, in Russell, and broke up and removed the plaintiff’s soil, and by means thereof caused the water of the river to carry away and destroy three acres of the close, the plaintiff’s cider-mill there standing, twenty barrels of cider, &c. The trial was before Putnam J., upon the general…

<p>The keeping a house of ill fame for lucre, is an offence at common law ; and the common law in relation to it is not repealed by Si. 1793, c. 59, § 8, which provides, that “ for the prevention of poverty as well as lewdness, any person suspected of such offence may be apprehended by warrant from a justice of the peace upon the complaint of the overseers of the poor, and upon conviction before such justice, &c., may be ordered to the house of correction for a month, and shall not after-wards be allowed to keep boarders without the license of the overseers. [See Re vised Stat. c. 130, § 8.]</p> <p>Where upon an indictment, a general verdict of guilty is returned, and one count in the indictment is good and sufficient to warrant the judgment given, it is not a cause for reversing the judgment on error, that there is another count, which is defective.</p>

<p>Where one namea as executor, paid a debt in full before probate of the will, under an erroneous belief that the estate was solvent, and afterwards took out letters testamentary, it was held that he was entitled to recover back the difference between the sum thus paid and the sum allowed by the judge of probate on the report of commissioners of insolvency.</p> <p>Where such debt was created in another State, in which the creditor lived, and the funds for payment were remitted to him by such executor from this State, it was held that nevertheless the case was to be governed by the laws of this State.</p>

<p>Where goods pledged were attached and taken from the possession of the pledgee, at the suit of a creditor of the pledgor, without a payment or tender of the amount for which they were pledged, as provided by St. 1829, c. 124, [Revised Stat. c. 90, § 78>] the pledgee is entitled to recover of the officer the full value of the goods and not merely the amount due from the pledgor.</p>

<p>In an action against a surety on a joint and several promissory note, the surety pleaded, that he tendered to the plaintiffs the amount due on the note, in order to be enabled to recover the same of the principal, but that the plaintiffs refused to receive it. The plaintiffs replied, that at the time of such tender, an action Mas pending in their favor, against the principal ; that they offered to receive the sum tendered in satisfaction of the note, provided that the surety would pay the costs legally due in such action, and indemnify them against the payment of costs to the principal ; that the surety refused so to do ; that afterwards the plaintiffs having recovered judgment in such action, offered to receive of the surety the amount due on the note, in full satisfaction of their claim against him, which the surety refused to pay. It was keld> that the replication was not double, the last averment being mere surplusage ; and that such replication properly concluded with a verification.</p> <p>A tender of the amount due on a joint and several promissory note, by a surety, while an action brought by the holder against the principal is pending, will not discharge the surety from his liability, unless he also offers to indemnify the holder against the costs of such action.</p>

<p>Where oír? of three partners retires from, or a new partner comes into 'he firm, or both, and notice thereof is given, but the business continues to be carried on, in other respects, as before, those partners as to whom no notice is given, will be presumed to hold the same relation to tire concern afterwards, that they did before.</p> <p>In an action against several for a partnership debt, if one of the defendants denies that he was a partner, it is incumbent on the plaintiff, in the first instance, to prove such defendant to have been a partner; and if this is done, he will be liable, unless he proves a dissolution of the partnership as it regarded himse!f> and notice thereof to the plaintiff", before the debt was incurred.</p> <p>In such action, a witness testified in chief, that he had given notice of the withdrawal of such defendant, and of the general dissolution of the partnership, and that he was “ confident that all in the neighbourhood were notified in two days.” On his cross-examination, the plaintiff’s counsel inquired whether he gave the same notice to the other creditors of the partnership as he had testified that he gave to the plaintiff; and the witness replied affirmatively, and gave the names of several, to whom he had given notice. It was heldt that it was competent for the plaintiff to call the persons so named, to prove that the witness had not given them any such notice as he had stated ; but that it was not competent for the defendant to call any of the persons named, in order to prove that they had received such a notice from the witness.</p>

Debt on an award. The defendant had leased a farm to the plaintiff for one year, and by the terms of the contract the crops &c. were to be their joint property ; and the plaintiff mortgaged bis share to the defendant, as security for performance of the conditions of the lease. The parties submitted all demands between them to arbitrators, and their award was to be final.

Bill in equity. The bill sets forth, that on July 6, 1819, Wareham Pease bargained with.

This was a complaint before a justice of the peace, under St. 1825, c. 89, entitled an “ act providing further remedies for landlords and tenants.” Upon a case stated in the Court of Common Pleas, it appeared, that about twenty years ago the defendant, with the assistance of the plaintiff, erected a house on the plaintiff’s land ; and he paid the plaintiff rent for the land until ten or twelve years since, when he refused, on the ground that the land he occupied was in the…

<p>In a writ of entry by the grantee of land against a defendant who claimed the land under an attachment made in November 1833, before the deed was recorded, it appeared that the attachment was returned on the writ, through a mistake of the officer, as made in November 1834, after the deed was recorded. The Court allowed the return to be amended, it appearing that such writ was dated in November 1833, and that judgment was rendered in that action for the present defendant in June 1834.</p> <p>A writ of attachment filled and delivered to the officer after sunset on Sunday, is not, for that reason, void, the regulations respecting the due observation of Sunday being restricted in their operation by St. 1791, c. 58, § 4, [Revised Stat. c. 50, § 4,3 to the time between the midnight preceding and the sunsetting of that lay.</p> <p>And it seems, that it would not be void at common law.</p>

Assumpsit. The declaration set forth, that the defendant, on April 16, 1834, by his promissory note, for value received promised the plaintiffs, Sexton and Pitkin, by the name of Sexton & Co., to pay them or their order the sum of $1295, on demand, with interest. The declaration also contained a general count; and a copy of the note was filed as a bill of particulars in the case.

<p>Bill in equity to redeem a small parcel of land, being the southerly half of a mill-dam, across Mumford river, in the town of Douglas, and extending to the thread of the river.</p> <p>Otis W. and Oliver Hunt were the defendants in the original bill, and Royal and Asa Thayer were made defendants by a supplemental bill.</p> <p>In 1803, Samuel Legg was the owner of a farm, bounded northerly by the middle of the river, and the parcel of land in controversy was a part of this farm. On April 4, 1803, Legg, by his deed duly recorded, mortgaged the farm to Nathan Verry, to secure the payment of 600 dollars. Legg remained in possession at least until 1810, and erected the dam in question. In January 1810, he conveyed, by deed, recorded in the same month, to Benjamin Adams, a fulling-mill on the north side of the river, standing on land of Benjamin Craggin, together with the dam erected across the river and the doom, to the south bank of the river, with the privileges and appurtenances. One apartment in the fulling-mill contained machinery for carding wool, and was occupied by Craggin. The other part, containing the fulling works, was, by an agreement with Adams, to remain for one year in the occupation of Legg, and was occupied by him accordingly. The estate thus transferred to Adams, came by various mesne conveyances to the plaintiff. In March, 1810, Legg quitclaimed the farm as far as the thread of the river, to Asa Thayer. In May 1810 Verry commenced a suit against Legg upon the mortgage, to recover possession of the mortgaged premises, and in September 1811 obtained judgment. On February 7, 1812, possession was delivered to Verry, by virtue of an habere facias, the officer probably entering upon the farm and giving possession in the name of the whole mortgaged premises, but not entering on the dam. The evidence was contradictory on the question whether Legg was in possession at .hat time. On May 21, 1812, Verry conveyed the same premises to Asa Thayer, by a quitclaim deed. Asa Thayer afterwards conveyed the farm to Amory Thayer, reserving one acre, which included the land in controversy. Upon the death of Asa Thayer in Apiil, 1828, his title to this acre of land came to Royal and Asa Thayer, two of the defendants, who, in September 1829, conveyed the same to the other two defendants. Repairs were made from time to time from 1810 to 1822, on the south part of the dam, by the occupants on the north side of the river. There were no works on the south s'dt;.</p> <p>The plaintiff contended that the mortgage to Verry was still in force as a mortgage, and he claimed a right to redeem the parcel of land in controversy, by contributing a ratable proportion of the original debt and interest secured by the mortgage.</p> <p>The defendants alleged that the right of redemption had been foreclosed.</p> <p>The case was argued in writing.</p>

This was assumpsit to recover the amount of the expenses incurred by the plaintiffs in the support of John May, a pauper, whose settlement was alleged to be in Sterling.

<p>In a suit in equity, a special replication denying part of the matter of a plea in bar, and reasserting the substance of the bill, is inadmissible. If a plea only is put in, it must be of some matter of fact, which, if true, is an entire bar to the suit, or to some substantive part of it; and if the plaintiff deems that the plea is insufficient for this purpose, whether true or not, he should move to set it aside for insuf* ficiency.</p> <p>A bill in equity praying for an account, set forth, that the plaintiffs entered into partnership with the defendant for the purpose of running a line of stagecoaches between Marlborough and East Sudbury as part of a more extended line, it being agreed, that each should bear one half of the expenses, and should receive one half of the fare money; that subsequently the defendant bought of the plaintiffs their undivided half of the partnership property, and promised therefor to account to them, on settlement, for a certain sum; that the defendant received the whole or nearly the whole of the fare money; and that no settlement of the concerns of the partnership had ever been made. The defendant pleaded, that the line between Marlborough and East Sudbury was part of a more extended line; that agents had been employed to manage the affairs of the entire line, with authority to receive the fare of passengers; that after the payment of the expenses of such agencies, the residue of the receipts was to be divided among the respective proprietors of the intermediate lines; that there had been a general dissolution of the company of the proprietors of the entire line, and that its concerns had never been adjusted; and that the defendant had not within his control the means by which the settlement of the account could be effected. It was held, that the facts set forth in the plea, would not excuse the defendant from accounting.</p>

<p>This was an appeal from a decree of the judge of probate allowing and approving a codicil to the will of Daniel Bacon. The following was one of the reasons of appeal :</p> <p>Because the codicil was not attested by three credible witnesses, as is required by law, Simon Carpenter, one of the subscribing witnesses thereto, being directly interested in procuring the codicil to be made.</p> <p>The parties stated a case.</p> <p>It appeared, that there having been some difficulty between Carpenter and Cyrus Bacon, a son of the testator, Carpenter, for the purpose of settling it, gave to Cyrus his promissory note for the sum of $400 ; that the testator was bound to indemnify Carpenter therefor, although at the time of executing the codicil, he denied that he was under such liability ; that at a meeting between the testator, his two sons-in-law, and Carpenter, a few days before the date of the codicil, the testator delivered to Carpenter two promissory notes which he held against Cyrus, amounting with the interest to the sum of $221-85, and took from him a receipt, dated April 10, 1833, oy which Carpenter was to account for the notes, or return them when called for, if not called for under six months ; that it was then agreed, as appeared by a memorandum of that date, that the testator should so alter his will as to take the sum of $375 out of the portion therein given to Cyrus, and should give his promissory note to Carpenter for the sum of $153-15, and that Carpenter should thereupon retain the notes against Cyrus, and should have the receipt which had been left with Henry Plimpton, one of the sons-in-law, delivered up to him ; that at the time of the execution of the codicil the testator, in pursuance of such agreement, gave to Carpenter his note, and also a writing addressed to Plimpton, dated April 12, 1833, in which he stated that he had altered his will in conformity with the agreement and directed Plimpton to deliver up the receipt to Carpenter,; and that in point of fact, such alteration was made by the codicil in question.</p>

This was a complaint founded on St. 1825, c. 89, brought to recover certain land and buildings.

<p>Trover for a quantity of shoes. Upon a case stated it appeared, that S. N. Warren and L. Eames, copartners in business in Upton, undertook, by a deed, to make a general assignment of their property to the plaintiff for the benefit of their creditors ; and thereupon made actual delivery of such of their effects as were near their place of residence, declaring that they delivered the same to the plaintiff in token of delivering to him all the property embraced in the assignment. On the day of the assignment one Phinehas Brooks had in his possession at Petersham, distant about fifty miles from Upton, 49 pairs of shoes, the stock of which had been delivered lo him by Warren & Eames, to be manufactured into shoes at an agreed price per pair ; also one Lewis Curtis had in his possession at Petersham, under a similar contract with Warren &t Eames, 50 pairs of shoes. On November 2, 1832, a letter written by the plaintiff, giving notice of the as signment, was delivered to Brooks by a messenger of the plaintiff, and by Brooks it was shown to Curtis. Afterwards, on the same day, the defendant, in his capacity of deputy sheriff, attached these shoes in suits against Warren & Eames, in favor of Brooks and Curtis. Subsequently, and before a sale of the goods by the defendant, and before the commencement of this action, the plaintiff exhibited to the defendant the deed of assignment and demanded the goods.</p>

<p>Debt on a probate bond given in behalf of Cowdin as administrator, to recover, for the benefit of Eliakim Davis and wife, the sum of $109-64, according to a decree of the Probate Court in May, 1825, with interest. Within one year from that time, (pursuant to St. 1817, c. 190, § 8,) Davis and wife petitioned this Court for leave to enter and prosecute an appeal from the decree, and at October term 1826, it was ordered that they should be allowed to enter an appeal, upon condition that they should, within thirty days, give bond with sureties to the judge of probate to pay costs, if the administrator should not be charged beyond the sum of $109-64. The bond was filed, in compliance with the above condition, but the appeal was never entered and prosecuted ; and Cow-din did not pay over the sum above mentioned.</p>

<p>Assumpsit, originally brought before a justice of the peace, to recover the sum of §17-25 with interest, being the price of a pair of steers alleged to have been sold by the plaintiff to the defendant.</p> <p>At the trial in the Court of Common Pleas, before Strong J., it appeared, that the plaintiff, in January 1830, as a deputy sheriff, attached a large amount of personal property belonging to Levi Nichols, upon writs issued in favor of the de fendant and several other creditors of Nichols ; that soon after these attachments were made, it was agreed between such creditors and Nichols, that the property should be sold by auction by the plaintiff, as the attaching officer, under St. 1822, c. 93 ; that the sale took place on February 8, 1830, and before the return day of the writs; that at this sale, the defendant bought the steers for the sum of §17-25 ; that by a subsequent agreement between such creditors and Nichols, none of the actions were entered, and no judgments were ever obtained ; that the proceeds of such sale exceeded the sum of §700; that the plaintiff applied so much of the proceeds as was necessary to pay the demands of the creditors whose attachments were previous to that of the defendant, and of two of those whose attachments were subsequent; and that after the sitting of the court at which the writs were returnable, the plaintiff had accounted with Nichols for all the property sold, except about the sum of §48, which was made up of the sum of §25 received by the defendant n payment for some of the property sold, the price of the steers, and some small articles of property retained by Nichols himself.</p> <p>It did not appear in evidence, that Nichols had ever expressly requested the plaintiff to pay him the price of the steers in question, or that be ever intended to require payment of him. There was still due from Nichols to the defendant, a larger amount than $17-25.</p> <p>The defendant offered to prove, that, at the time when it was agreed between the creditors and Nichols, that the actions should not be entered in court, there was also an agreement or understanding between them, that the proceeds of the sale of the property attached should be applied by the plaintiff to the payment of the debts of the several creditors, according to the priority of their attachments ; and that the plaintiff had knowledge of this agreement. The plaintiff objected to the introduction of this evidence ; but it was admitted.</p> <p>The jury were instructed, that if they were satisfied, that tnere was such an agreement or understanding between the creditors and Nichols, and that the plaintiff knew of it or had such notice as would induce a reasonable man to act, it would constitute a good defence.</p> <p>The jury returned a verdict for the defendant. To the admission of the evidence objected to, and to the instructions to the jury, the plaintiff excepted.</p>

Action of debt, by a judge advocate, to recover a penalty imposed upon the defendant as a militia officer, by a division court-martial. At the trial before Wilde J., the defendant objected that Capt. Marshall, of the fourth regiment, &c. who sat as a mem oer of the court-martial, had not been properly detailed Co .

This was an action against the sheriff of this county for the default of Billings Hobart, one of his deputies, in not fully serving an execution issued in favor of the plaintiffs against Elijah Burbank. The execution was fully satisfied, except for the amount of three promissory notes, which constituted a part of the claim of the plaintiffs.

<p>Under St, 1827, c. 77, upon a petition for a new highway, the county commissioner# are authorized to lay out an intermediate part only of the highway prayed for [See Revised Stat. c. 24, § 5.J</p>

<p>This was assumpsit to recover the sum of $675 with interest.</p> <p>At the trial before Wilcle J., it appeared, that the oank delivered to one Parkhurst an acceptance of Montgomery, Smith & Amory, of New York, for 1000 dollars, with directions to receive the money which certain assignees of the acceptors were ready to pay thereon, and to transmit the same in a draft; that Parkhurst carried the acceptance to New York, and, on February 27, 1834, received from the agent of the assignees the sum of $676-61, for which he signed a receipt on the back of the acceptance ; that on the same day when the money was received by Parkhurst, he called at the store of the defendants, to whom he was indebted in a sum as large or larger than he had received upon the acceptance; that, upon their saying that they wanted to borrow some money, Parkhurst told them, that he had received some from Montgomery, Smith & Amory and could lend it to them until he should be ready to return home ; that Parkhurst did accordingly lend the money to them; that no receipt was taken therefor, but the defendants entered the same on their books ; that Parkhurst did not inform the defendants at that time, that the money belonged to the plaintiffs ; that when Parkhurst was about to return home, he called upon the defendants several times for the money ; that after putting him off several times, they at last refused to return it; that Parkhurst then informed them that it belonged to the plaintiffs and that he had received it as their agent, and claimed that it should be repaid to him.</p> <p>A nonsuit was entered by agreement, which was to stand. or to be taken off and a default substituted, according to the opinion of the Court upon these facts.</p>

<p>It seems, that a town way may be proved by prescription or by the presumption arising from use and enjoyment.</p> <p>In an action against a town to recover for an injury sustained in consequence of-a defect in a way, a declaration averring that the way was “ a town way or roadi leading, &c., which road 93 it was the duty of the town to maintain, is supported by evidence, that it was an ancient road or way used by the public and the town, and kept in repair by the town.</p>

In this case, the trustees, who were the inhabitants of the school district No. 6 in Mendon, pleaded in abatement, that at the time of the service of the writ, Royal Thayer, ,by whom it was served and returned, was a deputy of the sheriff of this county, and that Seneca Hills, another deputy of the same sheriff, was an inhabitant of such school district; and they therefore prayed, that the writ might be quashed. To this plea the plaintiff demurred.

<p>The holder of a promissory note commenced actions thereon against the maker, and against the indorser, and the maker brought into court the full amount of the note with interest. It was held, that the holder was not bound to accept it, unless the costs of both actions should be paid.</p>

<p>After a verdict was found for the plaintiff in an action, certain questions of law were reserved, but upon a hearing judgment was rendered on the verdict. In the mean time the plaintiff had died, but this fact being unknown to his counsel, the execution was issued in his favor. The Court, upon the execution being returned unexecuted and cancelled, vacated the judgment and permitted the administrator to come in and prosecute the action, it appearing that the rights of third persons would not be affected thereby.</p>

<p>This was assumpsit brought by the plaintiff, as administrator of Turner Fuller, deceased, upon a witnessed promissory note, dated April 22, 1815, made by the defendant for the sum of $ 142, payable with interest after date, to the intestate or his order, upon the death of Lydia Fuller, the widow of Levi Fuller, deceased.</p> <p>The defendant pleaded the general issue. Tlje death of Lydia Fuller, before the commencement of the action, was admitted.</p> <p>At the trial, before Wilde J., the defendant, in order to prove the payment of the note, offered in evidence the following facts :</p> <p>Levi Fuller died in September, 1814, leaving four sons, viz. Simeon, Amos, Reuben, the defendant, and Turner, the intestate, to whom he devised all his real estate in equal shares, subject only to his widow’s right of dower. Immediately after his decease, the sons entered into an agreement, by which Simeon and the defendant contracted to purchase all the interest of Amos and Turner in such real estate, including their reversionary interest, and to support the widow during her life ; and Amos and Turner, on their part, agreed that the interest on the sum of about $500, at which they estimated the value of one third part of the real estate, should be applied to the widow’s support, and the principal also, if the interest should prove to be insufficient ; and that if, at the death of the widow, the whole amount thereof should be exhausted, then Simeon and the defendant should pay nothing to Amos and Turner, on account of such third part.</p> <p>Simeon Fuller testified, that the defendant was to give his note to Turner, and Simeon his note to Amos, for their respective fourths of the third part, and that this was the consideration for which the note in suit was given.</p> <p>Amos Fuller testified, that he was present when the agreement was made ; that the notes were to be given without interest, and upon condition that if the estimated value of the third part of the real estate should be expended in the support of the widow, the notes should be void, and that whatever amount should be so expended, if less than the whole, should be applied in part payment of such notes.</p> <p>On February 22, 1817, Simeon gave bis note to Amos, in the following words : “ For value received, I promire to pay Amos Fuller the sum of one hundred and forty-two dollars, to be paid at the decease of widow Lydia Fuller, and interest after payable ; if the said Lydia Fuller should expend her thirds, this note is void and of no effect; or if any part is expended out of said thirds, the fourth part is to come out of this note, which is spent.”</p> <p>It appeared that Turner, on different occasions, in 1826 and 1829, in conversation in relation to the note in suit, had said, that it was a dead note ; that the interest was to be expended and the principal also, if required, in the support of his mother; and that he never expected any thing for the note. There was no evidence, that Turner ever told the defendant, that this note was to be so applied, or that the defendant was present when such declarations were made, unless it results from the evidence before stated. The conversation in 1829 was just before the death of Turner, who was- then in embarrassed circumstances, and afterwards died insolvent.</p> <p>Lydia Fuller was supported by the defendant and Simeon during her life ; and upon her death in December, 1833, it appeared, that the expense of her support had exceeded the estimated value of one third of the land, with interest.</p> <p>This evidence w7as objected to by the plaintiff, as inadmissible to prove the payment of the note ; but it was admitted by the Court.</p> <p>The jury returned a verdict for the defendant.</p> <p>If the Court should be of opinion, that the evidence was admissible, judgment was to be rendered on the verdict ; oth erwise the verdict was to be set aside and the defendant to be defaulted, or a new trial to be granted, at the discretion of the Court.</p>

Assumpsit upon a joint and several promissory note for the sum of $50, signed by Lewis Putney as principal and the defendant as surety, payable to the plaintiff, after Isaiah Putney’s right of redeeming certain mortgaged real estate should have expired.

<p>An indenture, by which a debtor made a general assignment of his property in trust for the benefit of his creditors, provided that the assignees should first satisfy and pay unto any deputy sheriff all claims or incumbrances he might have upon any of the property assigned, by virtue of any attachment thereof upon any legal precept, A deputy sheriff, who had made such an attachment, became a party to the indenture, but the action was not discontinued. The assignor died, and a commission of insolvency was issued upon his estate, and so the attachment was dissolved The'attaching creditor summoned in the administrator, and recovered judgment. Upon a bill in equity brought by the attaching creditor and the attaching officer, against the assignees, it was held, that the execution of the assignment by the officer enured to the benefit of the attaching creditor ; that the intent of the assign ment was, that the debt due to such creditor should be paid, and not merely that his lien should be removed ; that his continuing his action in court was not a waiver of his right under the assignment ; and that he was entitled to recover the amount of his original claim, with so much of the costs as had accrued before the execution of the assignment.</p>

<p>A bequest of the use of money to a person for life, and then over, ip to be deemed a gift of the interest only, and not an absolute gift of the principal.</p> <p>The rule, that where evidence is given of a party’s declaration by way of confession, he shall have the benefit of what makes in his favor, as well as the burden of that which makes against him, requires, that what thus makes in his favor shall be fairly and liberally considered and weighed with the other evidence, but not that full faith and credit shall be placed in such statement.</p>

<p>Where the plaintiff erected a dam across the outlet of a pond, and acquired a right by prescription to use the water, it was held, that the erection of a new dam by the defendants higher than the old one, was not, in itself, an infringement of the plaintiff’s rights 5 for the plaintiff had a right to adopt and use the new dam to the height of the old one ; but that the defendants were entitled, as against the plaintiff, to use the water, when raised by means of the new dam above the top of the old dam, provided they did not thereby prejudice in any manner the rights of the plaintiff.</p>

<p>Debt on a judgment. "The declaration averred, that the plaintiff, in June 1833, entered á complaint in the Court of Common Pleas, against the defendant, setting forth that certain lands of the plaintiff had been flowed by reason of a dam of'the defendant; that thereupon, by virtue of St. 1829, c. 122, a warrant was issued by that court for emparinelling a jury to assess such a sum in gross as should be a just and reasonable compensation for all the damages done or to be done to the plaintiff bv means of such dam; that on October 18, 1833, the jury assessed the damages in gross, at the sum of $1750; that m June 1834, this verdict was accepted by the court, and the plaintiff then elected to receive such damages in gross, instead of the yearly damages, which were also assessed in the verdict ; that thereupon it was considered by that court, that the plaintiff should recover of the defendant the sum of $1750; that the plaintiff, on July 3, 1834, within the term of three months from the time of the acceptance of the verdict by the court, gave notice in writing of such election ; and that thereby an action had accrued to the plaintiff to demand and receive of the defendant the sum of $1750, with interest from the finding of the verdict.</p> <p>The defendant pleaded in bar, that for more than three months from the day when the plaintiff gave him notice in writing of his election to receive the sum of $1750, and ever since, he had refused to pay or satisfactorily secure to the plaintiff such sum.</p> <p>To this plea the plaintiff demurred. The defendant also pleaded, that by his neglect and refusal to pay or satisfactorily secure to the plaintiff the sum of $1750, he had abandoned all right to flow the lands of the plaintiff, and for ever precluded himself from all the benefits of the verdict, and from all rights in regard to the lands of the plaintiff, which he might otherwise have had by virtue of the statutes mentioned in the declaration, and of the complaint and the proceedings thereon.</p> <p>To this plea the plaintiff replied, that from the time of filing the complaint and ever since, the defendant had maintained the dam and had thereby kept up a head of water to the same extent and in the same manner, as by the verdict he was to have a right of keeping up the same.</p> <p>To this replication the defendant demurred.</p>

<p>A fire-frame fixed in a common fire-place, with brick laid in between the sides of the fire-frame and the jambs of the fire-place, is a fixture, and a tenant cannot remove it after his lease has expired and he has quitted the premises, although it was placed there by himself; but he may remove it during the term.</p> <p>The owner of a house under lease, offered it for sale by auction with a reservation of a fixture placed therein by the tenant, but the house was not sold. The tenant, at the expiration of his lease, sold the fixture and quitted the premises. It was held9 that the vendee could not afterwards sever and remove the fixture.</p>

<p>This was a writ of entry to recover the- possession of a tract of 1'and lying in Millbury.</p> <p>The trial was before Morton J.</p> <p>In the afternoon of December 15, 1828, John Wait, being seised of the demanded premises, conveyed them to Abijah L. Burnap ; and the estate of Burnap passed by several intermediate conveyances to the demandant. The deeds to the demandant were dated March 21, 1831, and March 9, 1832.</p> <p>The title set up by the tenant was acquired,in the following manner. On December 15, 1828, the tenant brought a bill in equity against John t, to compel a specific performance of a bond executed by him, and to recover damages for breaches of its condition. The bill was inserted in a writ of attachment returnable to the next succeeding term of this Court, and delivered to Daniel Upbam, a deputy sheriff, to be served, with a direction thereon to attach the real estate of John Wait. The return of the officer indorsed on the writ, was dated on December 17, 1828, at half past 11 o’clock, A. M., and set forth that he had attached all the interest of John Wait in the premises. Judgment was recovered upon the bill by the tenant, in April, 1831, and an execution was duly issued and extended upon the demanded premises.</p> <p>It was proved by the demandant, that the tenant had express notice, on the evening of December 15, 1828, of the conveyance from John Wail to Burnap. The tenant then offered to prove by the testimony of the officer, that the attachment of the real estate was in fact made on the morning of December 15, 1828, when the writ was delivered to him ; that the true date thereof should be the 15th, instead of the 17th of that month ; and that it was originally so written This evidence was rejected.</p> <p>The tenant then moved that the officer should be allowed to amend his return, so that it should bear date on the 15th instead of the 17th of December, 1828, and offered several affidavits in support of the motion.</p> <p>By the affidavit of the officer, which was in the case, it appeared, that he kept a register for the purpose of making entries of the time of his attachments ; that by this register the attachment appeared to have been made on the 15th ; that the register was not a record made at the time of making the attachments, but taken from the writs before the return day.</p> <p>For the purpose of introducing all the facts and of presenting the questions of law raised in the case, the amendment was considered as mad.</p> <p>A nonsuit or default was to be entered, or a new trial to be granted, as, in the opinion of the Court, justice should require.</p>

Action of debt on a judgment. The declaration set forth the record of a judgment against the defendant in favor of Samuel Boyden. The defendant pleaded nul tiel record. And upon oyer, the record produced set forth a judgment recovered by Samuel Boyden junior.

Action of the case. The declaration contained four counts. The first count was for closing up a door, on March 5, 1833, leading from the southeast room of a dwellinghouse, in Southborough, occupied by the plaintiff and the defendant, whereby the plaintiff was prevented from passing through such door to an oven in the kitchen, on certain days, for the purpose of baking. No question arose upon the second count.

This was an action on the case against the defendant as the acting clerk of School District No. 2, in Hendon. The parties stated a case.

<p>Where an absolute deed of land is given, accompanied by a simultaneous instrument, which is not recorded, operating by way of defeasance, and afterwards the parties, by mutual stipulations, agree that the defeasance shall be surrendered and cancelled, with intent to vest the estate unconditionally in the grantee, by force of the first deed, by such surrender and cancellation the estate becomes absolute in the mortgagee, provided that the transaction is conducted with fairness, both as between the parties and as against the creditors of the mortgager, and that the rights of third persons had not intervened before the completion of the transfer by the cancellation.</p> <p>In the case of a mortgage created by an absolute deed and a deed of defeasance, the parties cancelled the defeasance ; and the mortgagee by another deed agreed to convey the land on certain terms to the mortgager. It was keld9 that this deed did not operate as a defeasance, either so as to keep in force the original equity of redemption, or so as to constitute with the original conveyance a new mortgage, because it was not executed at the same time with the conveyance, nor as a part of one and the same transaction, nor was so understood or intended by the parties.</p>

<p>In an action of trespass brought before a justice of the peace, the filing a plea of tit»e to real estate takes away his jurisdiction of the case ; and it cannot be restored by pleading over and joining an issue not involving the question of title.</p> <p>Where in an action of trespass for taking and carrying away the plaintiff’s cow, the defendant pleaded that he was the owner of a close, and that the cow broke into the close and that he thereupon impounded her, and the plaintiff replied that the defendant injured the cow, and issue was taken on the injury, and after a trial upon that issue the action was carried by appeal to the Common Pleas, and there an amendment was allowed putting in issue the title to the elope, it was held, that the allowance of the amendment was erroneous.</p>

<p>A statute of 1699 provided, that “the great bridge” over Charles river should from time to time be repaired and maintained by the towns of Cambridge and Newton, Cambridge paying two thirds and Newton one third of the expense. In 1712, the Northern Precinct of Cambridge was by a legislative act incorporated into a town by the name of Lexington, upon terms agreed upon between them and Cambridge, that is to say, that Lexington should bear such a part of the two thirds of the bridge as should be according to their proportion with Cambridge annually in the Province tax, and that they should annually pay to Cambridge their part of the expenses •After this, Lexington paid their proportion of two thirds until 1781, when an act was passed repealing that part of the act of 1699 which subjected Newton to a part of the charge of maintaining the bridge. From 1781 to 1831, Cambridge repaired the bridge, and demanded and received of Lexington payment of Lexington’s proportion of the whole expense. It was held, that the repeal above mentioned threw upon Cambridge as it existed in 1699, that is, including Lexington, the whole burden of maintaining the bridge, and that the usage of these two towns since 1781 was a contemporaneous construction affording strong evidence, that such was the intent of the legislature and of the parties interested, and that the act of 1781 was passed with the assent of such parties.</p> <p>If such construction were doubtful, il seems, that the payment by Lexington for fifty years would afford presumptive evidence of a new and original agreement, by which Lexington was to pay the same proportion of the whole expense as it had paid of the two thirds, before Newton was released.</p>

Trespass de bonis asportatis. It was agreed by the parties, at the trial, that the defendant was one of the assessors of the town of Waltham for the year 1832, in which year the plaintiff was taxed in that town, for his real and personal estate and poll, at the sum of $502-67 ; and that for the non-payment of that portion of the tax which was assessed on his personal estate and poll, the goods mentioned in the writ were taken and sold by the collector under the assessor’s…

<p>Trespass qu. cl. fr. and de bonis asportalis. The declaration contained two counts, the one, for breaking and entering the close with force and arms, and cutting down and carrying away sixteen stooks of rye, and the other, for taking and carrying away sixteen stooks of other rye, &c. The trespass was alleged in the declaration, to have been committed on July 15, 1833. The writ was purchased on August 13, 1833.</p> <p>The defendant, Sarah Parker, pleaded as follows :</p> <p>“ And the said Sarah Parker comes and defends the force and injury when, &c., and as to the force and arms or any thing against the peace, and also the whole trespass, and all the trespasses in the plaintiffs’ declaration mentioned, excepting the breaking and entering the close aforesaid and cutting down and carrying away sixteen stooks of rye then and there growing, she says she is not guilty thereof in manner and form as the plaintiffs have complained against her; and as to the breaking and entering the close aforesaid and cutting down and carrying away sixteen stooks of rye there growing, the said Sarah says, that the plaintiffs their action aforesaid against her therefor ought not to have and maintain, because she says, that the close aforesaid in which the trespass aforesaid is supposed to be committed, at the time when, &c., was the close, soil and freehold of her the said defendant; wherefore the said Sarah, at the time when, &c., broke and entered the said close, and cut and carried away the said sixteen stooks of rye there growing, which she. lawfully might do, which is the same trespass, &c. ; and this she is ready to verify,” &c.</p> <p>It appeared that the defendant, Sarah Parker, was the widow of Levi Parker, senior, who died seised of the premises ; that Abel Jewett and two other persons were appointed, by the judge of probate, commissioners to set off her dower ; that in May 18, 1833, the locus in quo was set off to her for her dower by the commissioners ; that the plaintiff,” Levi Parker, who was an heir of the deceased, and the widow, by their writing, in which it was stated that they were the only persons interested in the proceedings, gave their assent to the assignment at the time when it was made ; but that the report of the commissioners was not presented to the judge of probate, and accepted and recorded, until November 5, 1833.</p> <p>The other defendants, as the servants of Sarah Parker, entered upon the premises and cut and carried away the rye in question, which had been sown by the plaintiffs before the assignment of the dower. The plaintiffs forbade their cutting the rye, one of them claiming it as their own property.</p>

<p>The defendant put his name on the back of a negotiable note, to enable the payee to get the note discounted, and subsequently the payee negotiated the note, at the same time indorsing his own name above the defendant’s name. It was held, that the defendant xvns to be regarded as an indorser, and that he was not liable as a promisor or a guarantor.</p>

<p>Where one tenant in common of land conveys the whole estate in fee, with covenants of seisin and warranty, and the grantee enters and holds exclusive possession thereof, such entry and possession are a disseisin of the co-tenant.</p>

<p>Trespass quare clausum fregit, and for taking away a quantity of wood, alleged to be the property of the plaintiff</p> <p>The parties stated a case.</p> <p>Elizabeth Cutler was formerly the wife of one White ; and upon his death, which took place more than forty years ago, dower was assigned to her in his estate. The dower estate consisted of cultivated lands, woodland, and about one half of a dwellinghouse and other buildings, which were all occupied by White as one farm. The widow afterwards married one Cutler, wTho died more than thirty years ago. Cutler devised to her certain property in lieu of dower, which she accepted. A part of the property so devised, was ten cords of wood per annum, which she continued to receive up to the time of the alleged trespass.</p> <p>For more than thirty years prior to April, 1832, the widow had leased her dower in White’s estate, by parol, to the de fendant, who owned about four fifths of the reversion, nothing being sa<tt respecting the woodland ; and ever since that time she had resided at the distance of several miles from White’s farm, at board, in another family. The mansion-house in which her dower was assigned having become untenantable several vears ago, was taken down by the consent of all parties. The widow had never taken any wood from the land assigned as her dower after she leased it to the defendant, and had derived to benefit from the woodland ; nor had the defendant cut any wood thereon.</p> <p>On March 22. 1832, the widow, by indenture, demised the lands so assigned as her dower, to the plaintiff, to hold for the term of one year from April 1, 1832 ; and under this lease, the plaintiff entered and cut a few feet of wood, claiming a right to it as her wood for the year 1831. The plaintiff afterwards, but within the same year, cut several more cords of wood upon the same land. The several parcels of wood cut by the plaintiff, were taken by the defendant and converted to his own use.</p> <p>If the Court should be of opinion, that the plaintiff was entitled to recover, the defendant was to be defaulted ; otherwise the plaintiff was to be nonsuited.</p>

<p>Under St. 1785, c. 66, § 2, [Revised Stat. c. 49, § 1,] providing for the maintenance f of bastard children, if the warrant issued by the justice of the peace to whom the complaint is made against the party accused, be returned before another justice, and such other justice require the party accused to give bond to answer to the complaint before the Court of Common Pleas, and order him to be held in custody till such bond is given, the bond will be void, as given under duress, as against both the principal and the surety.</p> <p>In an action upon such bond, in which the obligor pleaded the duress, it was proved that the obligor appeared at the court in compliance with the bond, but did not plead to the complaint, and that the proceedings were continued because the child was not then born It was held, that such appearance was not equivalent to a waiver of the duress ; but that if it were, the plaintiff could not take advantage of it, unless it was set forth in her replication, as avoiding the plea of duress.</p>

<p>Writ of entry for an undivided fourteenth part of a tract of land in Lowell, containing about eighteen acres. The writ was dated July 18, 1832. The demandant counted on his-own seisin within thirty years. The cause was.tried upon the general issue, before Morton J.</p> <p>The demandant produced an office copy of a deed of the whole tract, from Benjamin Parker to Thomas Fletcher, dated March 5, 1742, acknowledged February 27, 1745, and recorded November 24, 1770. He then proved that Fletcher improved a meadow, parcel of the tract, and there was no evidence of any other improvements by him. The demandant also proved that Fletcher died seised of the premises, on August 6, 1771, leaving a widow, and two daughters, Rebecca and Joanna. He also produced an office copy of the will of Thomas Fletcher, dated May 6, 1771, and proved September 4, 1771, wherein he devised all his real estate to his two ■daughters equally, as tenants in common. After the death of Thomas Fletcher, the widow and daughters remained in possession of the premises till the marriage of Rebecca with Dr. Benjamin Kittredge in 1773, and after that time the widow and Joanna remained in possession till the marriage of Joanna with Benjamin Melvin, the father of the d"mandant, on February, 29, 1777, when Melvin went into possession. Soon after, and while in possession, Melvin had issue by Joanna, James Melvin, born August 29, 1777. He continued in possession up to the time of his conveyance to Joseph Chambers.</p> <p>Rebecca Fletcher was born December 6, 1753. Joanna was born November 4, 1756, and died in September 1826, leaving seven children by Melvin senior, of whom the demandant, born in 1786, is one. Melvin senior died in April 1830. The demandant made an entry on the demanded premises on May 5, 1832, claiming as heir to his mother The demandant here rested his case.</p> <p>The tenants then gave in evidence a deed from Melvin senior to Joseph Chambers, dated May 31, 1782, acknowledged June 25, 1782, and recorded February 15, 1790, purporting to con vey the demanded premises to Chambers in fee simple, with the usual covenants of warranty. It was signed by Melvin senior and Joanna his wife, but the name of Joanna nowhere occurs in the deed, except by her signature, and no allusion is made to her or her right in the land, nor are there any words of grant or conveyance on her part, of any title or right in the land, but the deed, by its terms, is the deed of the husband only. Annexed to the deed is an acknowledgment thereof by Joanna with her husband</p> <p>The tenant then gave in evidence a license from this Court, dated April, 1814, to Moses Hale, guardian of the children of Chambers, who was then deceased, to sell his real estate, also an office copy of a deed of the premises from Hale, as guardian, to Artemas Holden, dated May 9. 1814, and acknowledged and recorded May 12, 1814 ; a copy of a deed from Holden to Thomas Hurd, dated January 22, 1822 ; a copy of a quitclaim deed from Hurd to the Merrimack Manufacturing Company, dated August 28, 1822 ; and a copy of a deed from the Merrimack Manufacturing Company to the tenants.</p> <p>The tenants proved that Chambers was in possession of and resided on the premises for thirty years next before his death ; that in 1785 he mortgaged the same to Benjamin Parker in fee simple, with covenants of seisin and warranty, to secure the payment of 46 pounds, 3 shillings.</p> <p>The tenants then gave in evidence a copy of a deed from Chambers to Phinehas Whiting, dated April 4, 1792, conveying about one fourth of an acre of the land described in the deed from Melvin to Chambers, which parcel is not included in the demanded premises ; also a copy of a deed of this small parcel, from Whiting to Asa Emerson, dated March 1, 1800 ; also a mortgage deed of the same' from Emerson to Aaron Fletcher, dated November 5, 1800, to secure the payment of ^ 115*75 ; also a deed of the same from Emerson to John Wilson junior, dated August 5, 1803 ; also a copy of a deed of the same from Wilson to James Melvin, the brother of the demandant, dated February 17, 1807 ; also a copy of a deed of the same from James Melvin to the demandant, dated December 1, 1821.</p> <p>The tenants then proved that Chambers, soon after the deed from Melvin to him was executed, built a small house on the demanded premises, in which he lived some years, and afterwards built a larger one now standing, valued at 1200 or 1500 dollars, enclosed the land with fences, and brought it under cultivation, and that since the death of Chambers the premises have been constantly in the possession of those claiming under Chambers.</p> <p>The tenants gave in evidence, that the premises were advertised to be sold by public auction and that the advertisements were posted up in the immediate neighbourhood of the land , that Benjamin Melvin senior, Joanna, and the demand-ant himself, all resided in the immediate neighbourhood of the land from the time Chambers took possession until his death, and at the time of the sale by auction, and ever afterwards unil the death of Benjamin Melvin senior and Joanna, and that no claim was ever known to be made or title set up, or notice of claim or title given, by Benjamin Melvin senior or Joanna, nor by the demandant, until the entry on May 5, 1832.</p> <p>This evidence was objected to by the demandant, but was admitted.</p> <p>Upon these facts the tenants contended, that the jury had a right to presume that Benjamin Melvin senior had acquired a title in fee to the premises prior to the date of his deed to Chambers, or subsequently thereto, which passed by that deed or some subsequent deed to Chambers.</p> <p>The demandant contended, that the facts in the case did not warrant the jury in making any such presumption, but that the deed to Chambers conveyed only the life estate of Benja min Melvin senior, which gave Chambers and those claiming under him a good right to the possession of the premises during the life of Benjamin Melvin senior, so that neither he nor Joanna, nor any other person claiming under them or either of them, had any right or could make any claim to the possession of the premises during the continuance of such life estate, and that there was nothing that would warrant the jury in presuming or finding that Benjamin Melvin senior bad conveyed to Chambers any other estate or title than his (Melvin’s) life estate in the premises.</p> <p>But the judge ruled that the foregoing evidence was competent, and left it to the jury, upon the facts as above stated, to determine whether Benjamin Melvin senior, either before the date of his deed to Chambers or afterwards,' had acquired an estate in .fee in the premises, which passed to Chambers by that deed or some subsequent deed.</p> <p>The jury found for the tenants, and thereupon the demand-ant moved that the verdict be set aside, and a new trial granted, for reasons which appear in the foregoing statement.</p>

<p>After the expiration of a lease for a definite time the agent of the lessor went upon the leased premises, and cut down some trees by the direction of the lessor and for his use, the lessee remaining on the premises cutting wood and ploughing the land, [t was held, that this was a sufficient resumption of possession on the part of the lessor to enable him to maintain trespass against the lessee for any injury to the soil ; and that a notice given to the lessee to surrender upon the expiration of the term, although not necessary in order to determine the lease, was good evidence to show the intent of the lessor in making such entry by his agent, n the same case it was held, that a notice to quit given after the expiration of the term and the commencement of the process under the statute, by the lessor, in order to regain the possession, did not amount to an admission of the lawfulness of the lessee’s possession and a waiver of the former notice and entry.</p> <p>So of a bond given by the lessee to the lessor, upon the return day of the complaint under the statute, conditioned that the lessee should deliver up the possession.</p> <p>Whether the case of a joint defendant in trespass shall be put severally to the jury, in order to enable him, if acquitted, to become a witness, is a question solely to the discretion of the judge presiding at the trial.</p> <p>Two actions of trespass quart clausum were commenced on different days by the same plaintiff against the same defendant, the one, for taking away some manure, the other for cutting and carrying away some wood, both on the same premises, and were returnable before a justice of the peace on the same day ; and the damages in each action were laid at the sum of $20. It was held, that the plaintiff might recover costs in both actions, notwithstanding the provisions of 1784, c. 28, § 12. [Revised Stat. c. 121, § 15.]</p>

<p>Under a count in an action for slander, alleging, generally, that the defendant charged the plaintiff with ¿he crime of theft, it is competent for the plaintiff to give in evidence any words, which, although in their ordinary sense doubtful or even innocent, can be shown, by the aid of averments and innuendoes, under the circumstances, to be equivocal or ironical, and to be intended by the defendant, and understood by the hearer, to impute such crime to the plaintiff.</p> <p>The grantee of land which had been previously attached in an action against ttie grant- or, conveyed it with covenants of warranty. It was held, that he was an incompetent witness for the grantor in such action, notwithstanding the grantee testified on hie voir dire, that he considered himself fully indemnified against his covenants, and felt no interest in the action.</p>

<p>This was an action of assumpsit brought by Joseph Keyes, Asia Hamlin and Nahum H. Groce, alleging themselves to be “ a committee to let out and superintend the making the road near Ira Leland’s,” in Westford, to recover the sum of $470-69, paid by them to William Bunker and others, who were employed in the construction of the road.</p> <p>The trial was before Morton J.</p> <p>It appeared, that the road in question was located by the county commissioners and accepted in September 1832 ; and that it was ordered by the commissioners, that the carriageway should be twenty-four feet in width, that the hills should be reduced to an angle of elevation not exceeding five degrees, and that the road should be completed by the town by the 1st of May, 1833.</p> <p>A town meeting of the town of Westford was held on November 12, 1832, in pursuance of a warrant containing the following article : “To choose committees and hear the re ports of committees, particularly to let out the building of a road lately laid out by the county commissioners at the Samuel Read hill, so called.” The road referred to in this article was the highway in question. The vote of the town upon this article was as follows : “ Voted and chose Joseph Keyes, Esq., Asia Hamlin and Samuel Fletcher 2d, committee to let out the road located near Ira Leland’s, and superintend the making of the same.”</p> <p>On December 18, 1832, Keyes arid Hamlin, on behalf of the town, entered into a contract under seal with Fletcher, the other member of the committee, by which it was stipulated, that Fletcher should construct the road by the 1st of May then next ensuing ; that the carriage-way should be made in some places twenty-eight feet and in others thirty feet wide ; that the angles of elevation should in some places not exceed three and a quarter degrees and in no place four degrees ; that the road should be made to the acceptance of the committee, and of such other person as the town should choose for that purpose, if they should see fit; and that if it were not completed according to such contract, all claim for compensation should be forfeited.</p> <p>On July 3, 1833, another town meeting'was held in pursuanee of a warrant containing the following among other articles : “ 2d. To see if the town will pay Samuel Fletcher 2d for making a new piece of highway commencing near Ira Leland’s in Westford, or take any measures in regard to the same and, “ 3d. To hear the reports of committees, and choose committees.” The following votes were passed : “ 2d. Voted to have the contract, between Samuel Fletcher 2d and the town, read ; ” “ 3d. Voted to dismiss the 2d, article in the warrant; ” “ Voted to choose one in addition to the committee to let out said road in question ; ” “ 5th. Chose Nahum H. Groce, Esq. said addition to the committee above named.”</p> <p>It further appeared, that Fletcher, in pursuance oí the contract, proceeded to construct the road so far as he thought he was bound to do, and declined doing any thing further, there being however a dispute between him and a majority or all of the committee, as to this point; that about September 29, 1833, the plaintiffs, as a committee of the town, “ chosen to let out and superintend the making and completing of a new piece of highway near Ira Leland’s,” entered into a contract, under seal, in behalf of the town, with William Bunker, by which it was stipulated, that Bunker should “ perform and faithfully lay out on said road an amount of labor not less than $400, and if said committee require, equal to $450,” at an agreed rate per day for himself, his laborers and teams ; and that the committee, on behalf of the town, should pay him, on the completion of the labor. The work was accordingly done by Bunker, and paid for by the plaintiffs.</p> <p>Upon this evidence the defendants contended ; 1. That the powers of the committee extended only to the making of a contract for the building of the road, and to the superintendence of its execution, as the agents and trustees of the town ; and that they had no right to desert this trust and assume the character of creditors of the town, by building the road themselves ; 2. That if under any circumstances they would have had a right to complete the road themselves, it would not be till after a proper contract had been made pursuant to the vote of the town, which was not performed ; but that the contract with Fletcher was not pursuant to such vote, as it required more to be done than was prescribed by the order of the county commissioners ; 3. That the contract with Bunker was a contract with the town, if the committee had authority to make it, and that in such case the payment by the committee was officious, and the town was not liable for it; 4. That all the committee ought to have joined in the action.</p> <p>These objections were all overruled pro forma, and reserved "or the consideration of the whole Court.</p> <p>The jur- found a verdict for the plaintiffs. If the Court should be of opinion that the plaintiffs were not entitled to maintain this action, the verdict was to be set aside and the plaint.ffs were to become nonsuit; otherwise the verdict was to be set aside and the cause to stand for trial.</p>

<p>The maker of a promissory note, after it became due, entered into a parol agreement with his creditors and F., by which it was stipulated, that F. should from time to time receive the maker’s wages from his employers, as they became due, for the benefit of his creditors, and that the holder of the note should receive payment of the note in monthly instalments, through the hands of F., and should not commence an action against the maker so long as the agreement should be complied with. Two of the instalments were paid in pursuance of such agreement. It was held, that such agreement did not constitute a legal defence to an action upon the note by such holder.</p> <p>In the same case it appeared, that F. informed the employers, that such an agree ment had been made, and requested them to pay the wages to him ; that they agreed that they would notify to F. when they were ready lo pay the maker, and if the maker would sign the pay-roll, and had no objection, they would pay to F. the amount due ; and that the wages due to the maker for two months were accordingly paid over in his presence to F. It was held, that this was not equivalent to an assignment to F. of the wages which had subsequently become due ; and that the employers were liable therefor as trustees of the. maker.</p>

<p>The county commissioners, having adjudged a town way to be of common conven ience and necessity, located it and made their return, which was duly recorded ; an order was thereupon passed by them, requiring the town to complete the way, but allowing the proprietor of the land to remove all property not required for the construction of the way. It was held, that the town way did not become such by the mere force of the adjudication, that it was of common convenience and necessity ; and that a person breaking down the fence for the purpose of passing over such way, after the expiration of the time allowed to the proprietor of the land for the purpose of removing the property, but before the road was constructed, vas liable to an action of trespass by such proprietor.</p> <p>Jt seems, that the town could not in such case legally break down the fence in order to construct the road, before the expiration of the time allowed to the proprietor for the purpose of removing the property, provided there were growing crops on the soil, to the protection of which the fence was necessary.</p> <p>In assessing ‘damages in trespass quare clausum the immediate consequences of the injurious act are to be regarded, and not remote, speculative and contingent consequences, which the party injured might easily have prevented by his own act. Thus, where the trespass consisted in removing a few rods of fence, it was held, that the proper measure of damages was the cost of repairing it, and not the injury to the subsequent year’s crop arising from the defect in the fence, it appearing that such defect was known to the plaintiff.</p>

<p>Alter the serv ce of a trustee process, the trustee is bound to retain the actual custody of the goods in his hands, against any one attempting to attach them specifically; and if such goods are afterwards specifically attached and taken from the custody of the trustee, the plaintiff in the trustee process may maintain an action against the officer thus attaching them, if he refuse to deliver them up, on the demand of the trustee, in order that they may be taken on such plaintiff’s execution.</p> <p>Where an officer, having several trustee writs to be served, delivered all the copies thereof to the trustee at the same time, it was held, that the attachments thus made were simultaneous, and that the plaintiffs in such processes were entitled respectively to recover an aliquot part of the proceeds of the goods so attached.</p>

This was an appeal by the defendant from the Court of Common Pleas. The facts are set forth in the opinion of the Court.

<p>A declaration in an action of qui tam, embracing in one count a claim for several penalties on account of distinct violations of a statute, may be amended by filing counts for each violation.</p> <p>By St. 1800, c. 26, giving the consent of this Commonwealth to the purchase by the United States of a tract of land in Charlestown for a navy yard, it was provided that the Commonwealth should retain concurrent jurisdiction over it, so far as that all civil and sucli criminal processes as might issue under the authority of this Commonwealth against persons charged with crimes committed without that tract of land, might be executed therein. It was held, that under the St. 1822, c. 103, requiring vessels employed in transporting stone within this Commonwealth to be weighed and marked, no penalty was incurred by the employment of a vessel not weighed or marked, in transporting stone from the State of Maine' to such navy yard ; because such vessel was not employed in transporting stone within this Commonwealth, in the sense of the statute, and because no offence was committed within the jurisdiction of the Commonwealth.</p>

This was a bill in equity to redeem a mortgage, dated December 8, 1818, made by the plaintiff and Aaron Hyde junior to Nathaniel S. Bennett, conditioned for the payment of 1400 dollars, with interest, for which the mortgagers had given seven promissory notes. The defendant was the sole acting executor and trustee under the will of Henry Hovey, three other persons named as executors and trustees having declined the trusts. The plaintiff was the testator’s nephew.

<p>Trespass quare clausum. The declaration set forth, that the defendant depastured and tore up the soil of the plaintiff’s close, situated in Maiden, and pulled down a shed standing thereon.</p> <p>The defendant pleaded four special pleas. In the first of them it was alleged, that the place where the trespasses were supposed to have been committed was, and from time immemorial had been, a part of a public highway leading from Salem through Malden to Medford ; that the highway was out of repair, straitened and rendered impassable by reason of certain obstructions placed there by the plaintiff; that the defendant, as one of the surveyors of highways of Malden, entered upon the close for the purpose of repairing the highway and removing such obstructions ; and that this was the act complained of in the declaration. The other pleas alleged substantially the same facts, with the exception that in the fourth it was set out, that the defendant, being a citizen, and having occasion to pass that way, removed such obstructions to enable himself to pass, and that this was the trespass complained of by the plaintiff.</p> <p>To these pleas the plaintiff replied, that the locus was not part or parcel of a common highway ; and concluded to the country.</p> <p>The trial was before Morton J.</p> <p>It appeared that the locus was bounded easterly on the road reading from Boston to South Reading, and southerly on the road leading from Salem through Medford to Boston. Both' of these roads were ancient highways, used as such from time immemorial, and no record of their origin was known to exist-They are in general about three rods wide. The westerly bound of the locus was on a brook running across the Medford road a few rods from its junction with the South Reading road. A bridge had existed over the brook on the Medford road near to its southerly line, time out of mind.</p> <p>It was proved by aged witnesses, some of whom remembered the road at this place for more than sixty years, that ever since their remembrance a wall had extended from some point on the South Reading road, passing around the circular corner where the locus was situated, on the northerly side of the Medford road, as far as the brook.</p> <p>At the point where the Medford road crossed the South Reading road, the travel had passed near the wall at the corner, but, in proceeding on toward Medford, a part of it passed through the brook, which was used as a watering-place, and a part took a more easterly direction, and passed over the bridge erected across the brook, thus forming two beaten tracks. At the junction of the roads the distance from the commencement of the old wall on the north to the southerly side of the Med-ford road, where it turns to go over the bridge, was nine rods.</p> <p>The wall was situated chiefly on a declivity of land near the brook. Above the wall the land was cultivated ; but below, it was not in a cultivable state, although it did not appear that th.^re was originally any difference in the nature of the soil. A portion of the land on the southerly side of the wall was a wet and muddy place commonly covered with water, and producing nothing but hassocks and yellow lilies. This land outside of the wall was originally of little value, but had now become valuable for building lots.</p> <p>In 1802 or 1803, the town built a pound on the place, about twenty-two feet square, the southeast corner of which extended a few feet into the old travelled path. The place on which it was built being muddy, it was filled with gravel, excepting one corner, which was left as a watering-place for the impounded cattle. The pound had been suffered to fall into decay.</p> <p>Within a few years the bridge over the brook had been made much wider, and the fence opposite to the bridge, in the brook, had been brought close up to it, so as to shut out the travel through the brook altogether. It had not been repaired as a highway since the American revolution.</p> <p>A part of the land in controversy consisted of a triangular strip of land embraced between the former travelled tracks from Boston to Medford, from Salem to Medford, and from Boston to South Reading. Near the centre of this triangular strip, was a steep place or bluff, over which no teams or car riages had ever passed, partly on account of the declivity, and partly because, of late years, stones and other obstructions had been placed there. The place over which no travel had ever passed was two or three rods in length.</p> <p>About three years since the plaintiff removed the ancient wall and the ruins of the pound, and erected a fence several rods to the south of the place where the- old wall stood, extending over the former beaten track of the Medford road. The town of Malden considered this as an encroachment on the highway, and chose a committee with directions to remove the obstructions in the highway at this place. The defendant, being one of the surveyors of highways, and acting under the orders of the committee, removed the fence- and other obstructions placed there by the plaintiff. This was the trespass complained of in this action.</p> <p>The plaintiff, and those who had owned the land on the northerly side of the Medford road, had made no use of the land on the southerly side of the ancient wall ; and there was no proof,- that they had ever claimed to own it till about the time of the alleged trespass, or that they had ever claimed or contended that the wall was not the line of the road.</p> <p>The plaintiff contended, that in the town records the land in question was called “ common ” or “ town land.”</p> <p>The plaintiff further contended, that if the existence of the road had been proved, it was only a way by usage, and • extended only so far as it was actually travelled ; and that it could not embrace the place where the old pound stood, or where no travel ever could have been.</p> <p>The jury were instructed, that as the defendant had pleaded, that the place in question was a part of the highway, and issue had been joined on such plea, the burden of proof was on him ; that by the St. 1786, c. 67, § 7, it was provided, that a building or fence erected fronting upon or against a highway, is to be deemed and taken to be the true ancient boundary thereof, provided such building or fence has been continued for more than forty years, and where no other boundaries, by record or otherwise, are known or can be made certain ; but that although, in the absence of all other evidence, a fence thus placed was presumed to be the boundary of the highway, yet it was prima facie evidence only, and might be rebutted by other evidence ; that the jury were to judge whether in this casé any such evidence, or sufficient evidence, had been produced by the plaintiff to rebut the presumption, that the ancient wall was in fact the true line or boundary in that place ; that in a highway there are often two travelled tracks with a space between them which is taken as a part of the highway ; and that on such principle the jury might consider the bluff as a part of the highway.</p> <p>The jury returned a verdict for the defendant.</p> <p>The plaintiff moved for a new trial for the following reasons :</p> <p>1. That considering the character of the ground and its trifling value in ancient times, the existence of the old wall was not prima facie evidence of a dedication of the land without it, to the public ; and that the jury should have been instructed, that it was rather evidence that the wall was built as far out as the land was worth cultivating.</p> <p>2. Thát there were in fact two distinct travelled roads ; and that the case should not have been stated to the jury as analogous to the case of two travelled tracks with a space between them in the same road.</p> <p>3. The plaintiff also moved for a new trial on the ground of newly discovered evidence, and supported his motion by affidavit.</p> <p>It appeared by a record of the Court of Common Pleas, laying out a highway from Malden to Stoneham in 1811, that in 1809 a petition was presented praying for a new highway from a small elm tree near the late dwellinghouse of Charles Hill, in Malden, through Stoneham to South Reading. This elm tree was near the centre of the village of Malden, on the easterly side of the principal street running northerly and southerly, and near the place where the Medford and South Reading road intersect each other, and where the old highways varied considerably in breadth, measuring from the line of the build ings and fences on one side, to those on the other. Upon the petition mentioned, it appeared, that after various proceedings in court, the way prayed for was adjudged to be of common convenience and necessity, and a committee was appointed to lay it out. The committee accordingly laid out a highway beginning at the elm tree, and thence, in a northerly course described, fourteen rods. Opposite the place in question, the highway was laid out three rods in width, extending westerly from the old wall on the easterly side of the ancient road, which was there more than three rods in width.</p> <p>The plaintiff contended, that this rendered the width of the road from the wall on its easterly side certain, if before it was uncertain, and proved that the place in dispute could not have been a part of the highway.</p>

<p>Case for slander. The damages were laid at a sum ex ceeding 100 dollars.</p> <p>The cause was brought up from the Court of Common Pleas by the plaintiff, by a common demurrer ; and upon a trial in this Court, the plaintiff recovered a verdict for the sum of $37"50. The defendant claimed the costs of the appeal, under the statute, upon the ground, that the plaintiff had recovered less than the sum of $100. The plaintiff claimed full costs.</p>

This was assumpsit to recover for certain harnesses furnished and repaired by the plaintiff in the autumn of 1830, and spring of' 1831, to be used on a line of stagecoaches between Boston and Nashua. The harnesses were alleged to have been supplied and repaired on the credit or for the actual use of the defendant. The action was tried upon the general issue, before Morton J It appeared, that the articles were charged on the plaintiff’s Dook to S. H. G. Rowley, agent.

<p>Assumpsit on a promissory note dated January 27, 1834, for the sum of $697-68, made by Isaac Thayer, of Sherburne, payable to the defendant or his order in six months from the date, and indorsed by the defendant.</p> <p>The trial was before Morton J.</p> <p>It was agreed by the parties, that in February, 1834, Thayer stopped payment, and assigned all his property for the benefit of his creditors, to one Choate and John M. Perry, who was summoned as trustee in the present action ; that in the assignment, the defendant, who was the father-in-law of Thayer, was a preferred creditor, and was fully secure! for all his demands and liabilities ; that shortly after the assignment, all the creditors of Thayer, excepting the plaintiff, agreed to give Thayer an extension of the time of payment of their respective claims, for four, eight and twelve months, provided all the creditors should assent to it ; and that Thayer, although the plaintiff did not agree to such extension, took possession of the property so assigned, proceeded to dispose of it as before the assignment, and continued to transact business in his own name, until after the note became due.</p> <p>A witness produced by the plaintiff testified, that the plaintiff delivered the note in question to him on the day after it became due, with directions to collect the money of Thayer ; that, on the same day, he called upon Thayer, who proposed to renew the note for the sum of $350, and to pay the residue in cash ; that this proposal was declined ; that a few days after the note became due, the witness was told by Thayer, that he had conveyed away all the property in his shop ; that the witness then called on the defendant, who lived in Sherburne, and informed him, that he called, by the request of the plaintiff, to settle the note, it not having been paid by Thayer; that the defendant said, that he knew that the note was unp’aid, that Thayer had endeavoured to induce the plaintiff to renew the note for the sum of $350, and to receive tbe residue in cash ; that he, the defendant, had indorsed a note for that amount, for the purpose, but the plaintiff bad refused it, and that Thayer’s ability to pay it would depend upon his getting accommodation at the Tremont Bank ; that before leaving the defendant, the witness inquired of him what would be done about the note, and the defendant said, that “ the note will be paid that the defendant, in the course of the above conversation, also said, that he had received no letter informing him of a demand of payment and of the non-payment of the note by Thayer ; that the witness inquired of the defendant, if he had the benefit of the property assigned by Thayer to Choate and Perry, for his indemnity, and the defendant replied, either, “ I bad the benefit,” or “I am to have the benefit of it;” that he asked the defendant, if he knew what Thayer had done with his goods that he had in the store the last week, and the defendant answered, that he did not; that the witness did not understand from the defendant, that he, the defendant, was a preferred creditor, or that he was to have any nenefit, under the new assignment by Thayer to his brothers, or that the defendant knew of any second assignment.</p> <p>The plaintiff was nonsuited.</p> <p>If, in the opinion of the Court, it would be competent for the jury to find a verdict for the plaintiff on the foregoing evidence, the nonsuit was to be taken off, and a new trial granted ; otherwise judgment was to be rendered for the defendant.</p>

Assumpsit. The declaration contained counts for use and occupation, and for money had and received, and laid out and expended.

This was an appeal from an order of the judge of probate, authorizing the appellee, as administrator with the will annexed, of Daniel Earned, to sell a part of the real estate of the deceased. The appellant was a son and heir of the testator.

<p>Assumpsit to recover back the sum of $4-01 assessed by the town of Raynham, upon the plaintiff, as a tax upon his poll and estate, for the year 1833.</p> <p>In the Court of Common Pleas the parties stated a case.</p> <p>The suit was prosecuted by the town of Taunton, • in the name of the plaintiff.</p> <p>In 1731 an act was passed by the legislature, providing, that the northeasterly part of Taunton, as therein bounded and described, should be set off and erected into a separate town by the name of Raynham. The act then proceeds to describe the bounds of the new town, u on the south by Taunton great river, including all the land of Lieutenant Ebenezer Robinson on the southeasterly side of said river, &c. thence down said river to the bounds between the lands of Thomas Dean and Nathaniel Williams, at the place called Shallow Water, thence on a straight line to the east end of Prospect Hill, al the going over of the way, including within said new township all the land of Zephaniah Leonard, and that which was formerly Captain James Leonard’s, which joineth to and is on the .west side of said line, which is to pay his proportion of all public charges to said new township, and excluding the land of Nathaniel Williams, joining to and on the east side of said line, which is to pay his proportion of public charges to the town of Taunton,” &c.</p> <p>Soon after the passage of the act, committees were chosen by the two towns respectively, for the purpose of laying out the new town. The committee chosen on the part of Raynham, consisted of Ebenezer Robinson and Zephaniah Leonard.</p> <p>The report of these committees included in Raynham the land of Robinson on the southeasterly or south side of the river, describing it by the monuments which they had set up thereon, and then proceeded as follows : “ thence down said river to the bounds between the land of Thomas Dean and Nathaniel Williams, at a place called Shallow Water ; thence north twenty-three degrees west, to a post set up on the hill, and between the two paths by Nathaniel Dean’s, marked, &c.; from thence on the same course, by marked trees, to the east end of Prospect Hill, at a stake,” &c. The committees further declare in their report, that they have run the bounds with “ a due regard to the inclusions and exclusions expressed in the act, respecting the land of Zephaniah Leonard, which was formerly Captain James Leonard’s, as also the 'ands of Nathaniel Williams.”</p> <p>The straight line described in the act, between Shallow Water and Prospect Hill, passed directly through one corner of the dwellinghouse of Nathaniel Williams, leaving about one third of it on the east side of the line. There was no monument standing on this line except a few ancient marked trees on or near the land of Zephaniah Leonard.</p> <p>Nathaniel Williams, who was the ancestor of the plaintiff, was uniformly taxed for his lands and poll in Taunton. After his death, his son, grandson and great-grandson (the plaintiff) lived successively on the land which belonged to him in 1731, and they and all other persons who have lived on the same land, have been taxed for their polls and estates in Taunton, and have always exercised the rights and privileges of citizens of that town ; and they had never been taxed by Raynham for the abovementioned real estate, or for their polls or personal property, until the year 1833. The northerly lot of land referred to in the act as the land of Zephaniah Leonard, was woodland, of very little value, and had never been taxed in Taunton.</p> <p>It further appeared, that the road leading to Bndgewaler through the Williams land had been supported by Raynham, up to the straight line ; and that another road through the same land had been supported for the last twenty-five or thirty years by Taunton.</p> <p>In all the perambulations of the lines between the two towns the land of Robinson has been included within the limits of Raynham, where it has always been taxed ; and his descendants residing thereon have always been considered as inhabitants of that town.</p> <p>The Williams land was always included by these perambulations within the limits of Raynham ; and the father of the plaintiff signed the report of the perambulation of 1810, as one of the selectmen of Taunton. The map of Taunton executed under the resolve of the legislature passed in 1830 included the same land within the limits of Raynham.</p> <p>if the Court of Common Pleas should be of opinion, that the plaintiff was rightfully taxed for bis real and personal estate, and fot his poll, in Raynham, then he Was to become nonsuit; but if he was not liable to be taxed in that town for either, then judgment was to be rendered in his favor, each party reserving the right to file exceptions.</p> <p>The Court of Common Pleas having ordered judgment to be entered for the plaintiff, the defendants excepted.</p> <p>The case was argued in writing.</p>

This was an action on the case, commenced on August 18, 1829, upon the following writing : “ August 29, 1823.

<p>Trespass quart clausum. The declaration contained three counts. The first was for entering upon a tract of beach or flats-ground, and building a wharf thereon. The third was for laying logs, stones and timbers upon a certain place called the head of the wharf.</p> <p>The trial was before Shaw, C. J.</p> <p>Prior to the year 1756, Matthew Mayhew owned a large tract of land bounded on the salt water constituting the harbour of Edgartown. The locus was a part of this land.</p> <p>William Mayhew testified, that he was the heir of Matthew ; and that all the lands of which Matthew died seised descended to him.</p> <p>On August 20, 1833, William Mayhew executed a deed to the plaintiff, which was comprehensive enough in its terms to include the locus, if the grantor was then seised thereof.</p> <p>On July 7, 1756, Matthew Mayhew conveyed to Jonathan Bunker one quarter of an acre of land, described in the deed as bounded southerly by the harbour, three rods wide, from the land of Finly, and continuing three rods wide from the harbour northerly, until it makes a quarter of an acre, with the privileges and appurtenances, also with a privilege in a way to be laid out by the grantor on the west, adjoining to the land granted. Under this deed the defendant claims.</p> <p>On July 19, 1756, Matthew Mayhew conveyed to William Pease a parcel of land lying by the harbour of Edgartown, bounded, beginning at the northeasterly corner, one rod distant southwesterly from land he had- then lately sold to Bunker, thence extending five rods southwesterly by the harbour, and so extending five rods in width northerly by an intended way one rod wide, which the grantor thereby promised to lay out for the use of the town of Edgartown, and by land belonging to himself, until it should make up the full and just quantity of one quarter and two thirds of a quarter of an acre, together with a privilege in the abovementioned and promised way. It was admitted, that the way between the Bunker and Pease lots, was an open, public way, and that it had been used as such for sixty or seventy years.</p> <p>It also appeared, that a road was laid out by Matthew May hew seventy-one or seventy-two years ago on the northerly side of the two lots ; that Bunker and Pease held their re spective lots up to the line of that road ; and that if the two lots extended from such road to the line of high-water mark only, or thereabouts, they would contain the quantities of land stated in the two deeds respectively.</p> <p>It was agreed, that if it was to be considered as a ques tion of fact, it should be taken as if found by the jury, that the parties to these deeds, by the words by the harbour, intended the high-water mark.</p> <p>The third count referred to a trespass supposed to have been committed on that part of the flats-ground which was in front of the way laid out between the Bunker and Pease lots’.</p> <p>The defendant'contended, that as the place in question had been laid out and dedicated to the public as a highway, and used as such for seventy years, trespass quare clausum could not be maintained by the owner of the fee against the defendant, for entering upon the land, or for placing upon it materials which would only impede or obstruct it as a way ; and fur ther, that in point of fact, all the materials which he had placed upon it, served to improve it as a way.</p> <p>If the Court should be of opinion, that the way in question was not a highway, or that, under the circumstances, trespass would lie, then the case was to go to the jury to find, wheth er the defendant did any act or placed any materials thereon, which did not operate as a benefit and improvement of it as a way for common use.</p> <p>Judgment was to be entered on a nonsuit or a default, or a new trial was to be ordered, as the Court might direct.</p>

<p>Assumpsit to recover the amount of a promissory note dated October 30, 1828, made by Pelatiah Metcalf, as agent of the Lanesville Manufacturing Company, for the sum of $908T6, payable to Walcott & Whipple, on demand, and indorsed to the plaintiff.</p> <p>The trial was before Morton J.</p> <p>It appeared, that the defendants, who were five in number, constituted a voluntary manufacturing association, transacting ousiness under the firm of the Lanesville Manufacturing Com pany ; and that two of the defendants, Walcott & Whipple, were at the time when the note was made, copartners, undei the firm of Walcott St Whipple.</p> <p>On the part of the defendants, it was proved, that on June 15, 1829, Walcott, being then insolvent, executed a deed of assignment, conveying all his right, title and interest in all th< real and personal property of both the partnerships, to Whip pie, who undertook, in consideration thereof, to pay all part nership debts. This deed of assignment was recorded in the registry of deeds.</p> <p>The note in suit, at the time of the transfer, was in the custody of Walcott, unpaid, and was indorsed by him, after the assignment, with the partnership name of the payees. It appeared, that the plaintiff had indorsed a note for Walcott & Whiople in May, 1829, for the sum of $1000, payable in four months ; and the cashier of a bank testified, that before tnat note became due, he expressed his doubts as to the standing of Walcott & Whipple, to the'plaintiff, and asked him if he was secure, and that the plaintiff replied affirmatively.</p> <p>The defendants also proved, that they, having notice of the indorsement, paid the amount of the note to Whipple, and on December 19, 1829, received from him a discharge ; and that immediately thereafter, an advertisement of the loss of the note was published in one of the Providence newspapers, cautioning all persons against purchasing it.</p> <p>The defendants contended, that Walcott, having parted with all his interest in the note and the effects of the firm of Walcott & Whipple, had no longer authority to negotiate the note by using the name of Walcott & Whipple ; and that the insolvency of Walcott and the assignment to Whipple, were in fact a dissolution of the partnership.</p> <p>The defendants offered to prove, that immediately after the assignment of Walcott to Whipple was made, it was a matter of public notoriety in Pawtucket, where the plaintiff resided, that Walcott was insolvent, and had assigned to Whipple all his right, title and interest in the partnership property of Walcott & Whipple. This evidence was rejected.</p> <p>The defendants were thereupon defaulted.</p> <p>If this evidence ought to have been received, the default was to be taken off, and a new trial granted.</p>

Trespass for breaking and entering the plaintiff’s close, and removing and carrying away therefrom a dwellinghouse belonging to him. On a case stated it appeared, that on July 20, 1833, the defendants entered the plaintiff’s close and removed a part of the wall dividing it from the highway, and removed a building valued at $30. On November 30, 1832, the building belonged to Henry Gifford and Elijah Gifford, two of the defendants.

This was an action on the case for slander. The two first counts charged the defendant with having spoken certain slanderous words, which were set forth in hac verba, tending to impute to the plaintiff the crime of larceny. The third count, after the usual introductory allegations, averred, tha* the de fendant publicly charged the plaintiff with the crime of stealing.

<p>This was an appeal from a decree of the judge of probate for the county of Bristol, approving and allowing the last will of Huldah Hall; and the following issues were framed, for the purpose of trial by jury :—</p> <p>1. On the sanity of the testatrix.</p> <p>2. Whether the will was duly executed, by being signed by the testratrix in presence of three witnesses, and by them attested in her presence.</p> <p>3. Whether the testatrix was induced to execute the will, by the fraud and imposition of interested persons practising upon her imbecility.</p> <p>The cause was tried before Shaw C. J.</p> <p>No evidence having been given by the appellants to support this last issue, after the trial was finished and before the cause went to the jury it was withdrawn. On the other two issues a verdict was returned by the jury in support of the will ; and the appellants moved for a new trial, on several grounds.</p> <p>1. Because the direction of the chief justice in regard to the signature of the will, in the presence of the witnesses, was incorrect in point of law.</p> <p>The general tenor of the evidence was, that the testatrix was a single woman, about seventy-six years of age, something peculiar and eccentric in her character and manners ; that at the time when she executed the will she was very sick, laboring under a pulmonary disease, of which she died in about four days after ; that the will was drawn by Mr. Colby, a counsellor at law, at the house of the testatrix, after a full conversation with her ; that she at that time spoke with difficulty, though he understood, without assistance, nearly all sue said, but that Mrs. Bassett, who lived with the testatrix and who is the daughter of Asa Hall, the principal devisee and executor, was present, and at Mr. Colby’s request put such questions to the testatrix as he proposed, and in one or two instances communicated her answers. The will purports to be attested by Macey Williams, Philo Williams, and Mary Bump, as witnesses to the execution by the testatrix. Mr. Colby testified as follows : — After the Messrs. Williams came, we went into the room. I read over the will to the testatrix, in a loud voice and with clearness, and explained to her the difference between this and a previous will, which I then had ; I asked her if she understood it. She was then paitially raised up in bed ; she said something about not being able to write her name. I told her I would assist her, and did take hold of the pen whilst she wrote her name. I think she then put her hand upon the seal. I then took the will for the witnesses to sign. I was asked if Mary Bump the other witness should not be present. I said, certainly, I thought she was. She then came in. Thinking a republication would be sufficient, I carried the will to the testratix again, and asked her if that was the paper that she had just signed. She took it with a pretty firm hand, and seemed for a moment to entertain some doubt of the purpose, and looked earnestly at the signature, and I told her it was the same, and asked, is this the same instrument you have just signed ; and at that question she took it and looked at the signature. My object was to get an acknowledgment to her signature ; she did not give an answer to this question ; and after she had examined it a moment, I told her it was the same and there was no mistake about it. I asked her if she published that as her last will and testament, and she said she did. Then Mary Bump signed it as a witness. In cross-examination Mr. Colby said, that from the manner and anguage of the testatrix, he considered that she understood the terms and provisions of the will, as he prepared and read it to her.</p> <p>The jury were instructed, that to maintain the issue on the part of the executor, and to establish the will, it was necessary to prove that the testatrix signed the will in presence of the witnesses ; or that she acknowledged the signature as hers m their presence, and that they severally signed it as witnesses m her presence ; and that such acknowledgment was a sufficient compliance with the statute. But in the latter case such acknowledgment may be shown, either by proof of an express acknowledgment and declaration that the signature to the will is hers, or by such facts as will satisfy the jury, that she intended to make such declaration or recognition of her signature. If a mere reference is made to a paper, especially if produced by another person, and not held in her own custody, or if it is folded up, and there is no pointing to or referring to the signature, if she publishes, declares and a'-l.-nowledges such document to be her will, this is not such an acknowledgment of the signature as will supersede the necessity of an actual signature in the presence of the witnesses, and will not warrant the jury in finding that it was duly signed in the presence of the witnesses. In applying the rule to the case, the jury were instructed, that if, when Mary Bump came in, what took place between Mr. Colby and the testatrix amounted to an acknowledgment that the signature there placed was her signature, and she meant to declare, not only that the instrument then produced, if, as she was assured, it was the same she had just signed, was her will, but meant to declare that that paper bore her signature, and that she recognised it as such, this was an equivalent act to an actual signature. But if, declining to answer the first question of Mr. Colby, whether that was the paper she had just signed, and relying only on Mr. Colby’s assurance that it was the same, she admitted that the paper which she had before signed was her will, without thereby meaning to declare that this particular paper bore her signamre, so as to give authenticity to the paper, then it was not signed agreeably to the requisitions of the statute and within the terms of the issue.</p> <p>2. Because, supposing the above instruction to be right, the verdict was in this respect, against the weight of the evideuce.</p> <p>3. Because Keith Bassett was offered as a witness by the appellants, and rejected as incompetent on the ground of interest.</p> <p>The facts proved in support of the objection to this witness were these. The testatrix had made a previous will, which, if the will in controversy were set aside, would be her last will. One of the. attesting witnesses proved that it was duly executed by the testatrix, and attested by three attesting witnesses in her presence. By this will she had given her real and personal estate to Ruth Hall, who bad since intermarried with Keith Bassett, the witness, and there had been children of this marriage. It was ruled, that the former will, though it had not been offered for probate, was competent evidence for the purpose for which it was offered ; that the witness, as husband of the principal devisee in the former will, had an interest in setting aside the present will, and was therefore incompetent.</p> <p>4. Because the former will was allowed to go to the jury as . evidence.</p> <p>At the time when this evidence was offered, the issue upon the question of fraud and imposition was open. There had been evidence tending to show, that the testatrix had said that it was her intention to give her property to John Hall’s family. This will was offered by the appellees, in connexion with the fact that Ruth Hall, now Ruth Bassett, was the daughter of Asa Hall, and also in connexion with the testimony of Mr. Colby, who stated that he read, explained and compared the two wills, and pointed out to the testatrix wherein they were alike and wherein they differed, with a view to show what will she made at a former period, when not in extremis, and as evidence bearing upon the point, that the will in question was made intelligently. It was objected to on the ground that it could not be proved as a will, as it had not been offered for probate at & Probate Court; but the objection was overruled, and the paper was admitted to be read to the jury.</p> <p>5. Because evidence from the probate records, showing the amount of property which the testatrix had received as heir at law of her brothers, was rejected.</p> <p>The appellants proposed to exhibit the records of the Prooate Court, to show that the testatrix had inherited a large amount of personal property from her brothers, and then to offer the inventory taken oy the limited administrator on the estate of the testatrix, to show a small amount of personal property and consequent diminution, with a view of affecting the question of her sanity and her capacity to manage and take care of property. This evidence was not admitted.</p>

<p>Petition for a certiorari to the Court of Common Plea:. The petition set forth, that the respondent, at the March term 1834 of that court, complained against the petitioner, that she was begotten with child by him ; that the complaint was heard and tried before that court ; that at such trial the respondent was offered as a witness to sustain the prosecution ; that the petitioner objected to her being admitted as a witness, on the ground, that she had been convicted of the crime of stealing ; that he then and there produced the record of her conviction ; but that the court, notwithstanding such conviction, admitted her to testify, she having received from the governor of the Commonwealth a full pardon of the offence of which she had been convicted. Wherefore the petitioner prayed, that the record and proceedings of the Court of Common Pleas upon such complaint might be corrected by this Court.</p>

<p>Appeal from a decree of the judge of probate for ttu-. county of Bristol.</p> <p>The parties stated a case The appellant and the appellee were heirs of Moses Grinnell, who died on December 31. 1821 ; and the appellant was also the administrator of his estate</p> <p>The appellant appealed from a decree of the judge of probate made on November 8, 1833, respecting his first administration account, because the judge considered that the following notes, made by the intestate, to wit, a note dated January 1, 1805, for $382-28, a note dated January l, 1809. for $298-20, a note dated May 12, 1812, for $28, and an account for $11-70, amounting, with the interest, to the sum of $1838-86, which were included in the appellant’s private claim against the intestate, were barred by the statute of limitations, and therefore ordered, that the appellant should not be allowed the same</p> <p>The note of January l, 1805,'which was made by the intestate to Susannah Grmnell, and indorsed to the appellant, was witnessed by the appellant ; the others were not witnessed.</p> <p>The notes, which were all payable on demand, and the account, were secured by a mortgage deed from the intestate to the appellant, dated May 3, 1815. On the back of the deed was the following memorandum, signed by the intestate and attested by a witness: “ February 21, 1816. Received of Charles Grinnell eighty-four dollars. I agree and promise to pay on the same conditions as the within instrument, as per note of hand of this date.” The intestate left no personal estate.</p> <p>If upon these facts it should appear to the Court, that the recovery of the demands so disallowed by the judge of probate was barred by the statute of limitations, or that the appellant could not avail himself of them upon a settlement of his administration account, then the decree was to be affirmed ; otherwise, the Court were to allow the whole or any part of the claims, and make such decree thereon as should be conformable to the law.</p>

The appellant and the appellees were heirs of William F. Grinnell, who died on July 21, 1822. The appellant, who was a brother of the intestate, was .appointed administrator of his estate.

Trespass quare clausum against the defendant, for cutting wood on the close in question. Plea, the general issue.

<p>This was a writ of entry, in which the demandant counted on his own seisin, and a disseisin by the tenant. The tenant pleaded nwl disseisin.</p> <p>The parties stated a case.</p> <p>The demanded premises were formerly parcel of the farm of Nathaniel Thompson, who, on January 11, 1834, conveyed them to the tenant, by a deed containing the following words : “ Know all men, that I, Nathaniel Thompson, of &c., in consideration of two hundred and forty-eight dollars, received by me by the surrendering up to me and cancelling by my wife, Joanna Thompson, of three several notes of hand, which, her father, John Tinkham, deceased, held against me at the time of his death, and the proceeds of which notes he bequeathed by his last will and testament to my said wife, the said notes, together with the interest, amounting now to the above sum, I do, by these presents grant, bargain, sell and convey to Orlando Thompson, of &c., trustee of my said wife, the following estate, &c. To have and to hold the premises from me, the said Nathaniel, and my heirs, to him sa*d Orlando, in trust for my said wife, and his successor or successors, for the use and benefit of my said wife and her heirs and assigns for ever.” The sum mentioned in the deed, as the consideration, was the full value of the land conveyed</p> <p>The tenant was the son of Nathaniel and Joanna Thompson. The three notes referred to in the deed, were dated February 19, 1821, July 24, 1821, and January 3, 1826, respectively, and were all payable on demand.</p> <p>Tinkham died in April, 1829, and by his will, devised to his daughter, Joanna Thompson, certain real estate, and household furniture, “ together with all the money due to me from her husband, Nathaniel Thompson, to her and her heirs and assigns for ever.” Nathaniel Thompson and John Tinkham, a son of the testator, were appointed executors and accepted the trust. The three notes held by the testator were inventoried and appraised with his other estate. On November 2, 1830, the executors settled in the Probate Court, their account, in which was the following item, charged by the executors 'and allowed by the court : “ Paid legacy to Joanna Thompson, being in notes and furniture, $418,02.” The notes referred to were the three notes mentioned in the deed to the tenant.</p> <p>On February 19, 1834, the demandant sued out a writ against Nathaniel Thompson, and having recovered judgment against him at the August term 1834, of the Court of Common Pleas, caused the execution to be extended on the demanded premises. This judgment was founded on a debt due to the demandant long before the execution of the deed to the tenant.</p> <p>It further appeared, that judgments were recovered against Nathaniel Thompson, at the same August term of the Court of Common Pleas, for debts due to other persons before and at the time of the execution of the deed ; that he was at that ame aware that he was insolvent; and that all his attachable e* tate. including the demanded premises, had been since set off in part satisfaction of the judgments recovered against him</p> <p>If the Court should be of opinion, that the demandant could maintain his action, the tenant was to be defaulted ; otherwise, the demandant was to become nonsuit.</p>

<p>In April 1834, an indictment was found, alleging that Wade, on October 29, 1832, in the night, at Dedham, “ a certain building of one Ebenezer Newhall and one Timothy Gay, there situate, called a barn, feloniously &¿c. did set fire to and burn, and that by the kindling of said fire and by the burning of said barn the dwellinghouse of one James Bride, there also situate, was then and there, in the night time, feloniously &c. burnt and consumed.” The prisoner pleaded not guilty, and at October term 1834, he was put upon his trial.</p> <p>The jury being empannelled, Jlustin, Attorney-General, called witnesses in support of the indictment, from whose testimony it appeared, that Gay was the general owner of the dwellinghouse and of the barn and of a horse-shed by which they were connected together ; that he let the dwellinghouse and a part of the barn to Bride ; that Bride was in the occupation of the dwellinghouse as an inn ; that with Gay’s consent, he transferred his right in the barn to Ebenezer Newell, (not Newhall,) and Newell paid his rent to Gay ; that Newell occupied this part of the barn for the purposes of a livery stable, making use of fourteen stalls, and more when he had occasion for more, the horses of travellers who stopped at the inn being taken care of by him ; that the rest of the barn was appropriated to the use of an unincorporated company, called the Citizens’ Coach Company, who were the proprietors of a line of stagecoaches running between Boston and Providence ; that it was so appropriated by virtue of a verbal contract between the company and Gay, by which it was agreed that the company should use' the barn for such of their horses as they should choose to keep there, and in consideration t ereot Gay should have the manure ; that no definite time was fixed for the continuance of this contract ; that Gay was a member of the company, and likewise their agent, receiving a salary for his services ; that he had the care of that part of the barn which was not occupied by Newell ; that he bought and put in the hay for the company’s horses, and drew orders on the treasurer of the company to pay for it ; that he hired the ostlers, and they were paid by the company ; that he had nothing to do with any horses in the barn, except those belonging to the company ; and that he had the care of all the stables on the line, (and which were not owned by him,) in the same manner as of this barn, except one which belonged to the company.</p> <p>The Attorney-General having no further evidence that the building set on fire was the building of Newell and Gay, as alleged in the indictment, the prisoner’s counsel, Metcalf and F. 0. Watts, interposed an objection, that this allegation was not supported by the proof. They contended (independently of a supposed misnomer of Newhall for Newell) that it was necessary to aver in the indictment, that the building alleged to have been set on fire by the party accused, was the building of another, and to aver whose building it was ; that if such averments were not necessary, yet that here the ownership, or if not the ownership, the possession, was averred to be in Newell and Gay, and the averment being made, was material, inasmuch as it entered into the description of the offence, and must be proved. They cited St. 1804, c. 131, § 1, 2, 3 ; Bloss v. Tohey, 2 Pick. 320 ; Stephen on PI. 419; Archb. Grim. PI. 14, 19, 67 ; The King v. Taylor, 2 M‘Nally on Evid. 605 ; S. C. 1 Leach, (3d edit.) 58 ; Rex v. Durore, 2 M‘Nally on Evid. 501 ; S. C. 1 Leach, (3d edit.) 390 ; 3 Stark. Evid. 1530, 1533 ; 2 Russell on Crimes, 495, 949, (cites 2 East’s P. C. 513, 1 Chit. Grim. Law, 215, et seq.,) 1677 ; 3 Chit. Grim. Law, 1095, 1097, 1108 ; Woodward’s case, 1 Leach, (3d edit.) 287, note ; Rex v. White, 1 Leach, (3d edit.) 286 ; 2 East’s P. C. 1034 ; Rex v. Ball, 1 Ryan & Moody’s Cr. Cas. 30 ; Rex v. March, 1 Ryan & Moody’s Cr. Cas. 282.</p>

<p>A prisoner indicted for a capital crime is entitled to be furnished with a list of the witnesses examined before the grand jury, but not of those which the counsel for the government purpose to examine at the trial.</p> <p>A member of the legislature is entitled to be excused from serving on a jury while the legislature is in session.</p>

<p>Promissory notes were held not to pass by a bequest of in-door movables.</p>

<p>By an agreed statement of the parties the following facts appeared.</p> <p>The first of these cases was assumpsit on a promissory note, dated April 16, 1828, for the sum of $5000, made by the defendant, payable to Samuel J. Gardner or his order, on demand, with interest. The note was indorsed to the plaintiff in blank, prior to May 28, 1832, but the indorsement was filled up at the bar, with the date of April 15, 1834. The writ, was dated April 15, 1834, and was served on April 24, 1834, by attaching divers parcels of real estate then belonging tc the defendant.</p> <p>Tha action was defended by John J. Clarke, in pursuance ol the provisions of St. 1823, c. 142, and St. 1832, c. 159, passed for the prevention of fraud in the attachment of real or personal estate.</p> <p>The defendant pleaded the general issue, and actio non accrevit infra sex annos.</p> <p>Two other pleas were offered. The first set forth that at the time when the note in suit was made, the defendant, Webber, agreed with the payee, that if the payee would from time to time indorse certain notes for Webber’s accommodation, Webber would pay him, as a compensation therefor, a commission of one half of one per cent for every monih, during which the payee should remain liable as such indorser, upon and for all moneys obtained by Webber, by virtue of the notes so indorsed, and that he would indemnify the payee against all losses arising in consequence of such indorsements ; that Webber executed the note in suit, in pursuance of this agreement and in order to indemnify the payee ; that on April 9, 1833, long after the note was executed and delivered, the payee indorsed the same to the plaintiff; that the payee had suffered no damage by reason of any liability by him incurred for Webber previously to April 9, 1833, when the note in suit was indorsed and transferred ; and that the plaintiff had not suffered damage by reason of any liabilities incurred by bei and the payee, or either of them, for Webber. The second special plea was the same, with the exception that the averment relating to the" commission to be paid by Webber, to the payee, was omitted.</p> <p>On motion of the plaintiff, both these pleas were rejected by the court, as amounting to the general issue. The defendant excepted to this ruling.</p> <p>It appeared from the evidence, that the writ in this action was actually made on the day when it bore date.</p> <p>On the trial of the issue of actio non accrevit, &tc. the judge ruled, that the date of the writ was the time of the commencement of the action. This ruling was objected to by the defendant, and the question was reserved.</p> <p>The second action was. a writ of entry, declaring upon a seisin of the plaintiff within thirty years, and a disseisin by the defendants.</p> <p>Webber disclaimed, and judgment was rendered for him on his disclaimer. Clarke, the other defendant, pleaded nuv disseisin.</p> <p>The plaintiff claimed under a mortgage made by Webber to Samuel J. Gardner, on April 16, 1828, which was conditioned to be void, upon payment of the sum of $5000 by We :ber, his heirs, &c., on demand, with interest. This mortgage was, on November 20, 1834, assigned to the plaintiff.</p> <p>Gardner, the payee, who was called as a witness, testified, that at the time when the note in suit and the mortgage were made, it was the understanding of the parties, that the note and mortgage should be a security for such indorsements as the payee should make for Webber ; that about the time when the note and mortgage were actually delivered to the payee, he commenced indorsing for Webber, and continued so to do, until the beginning of August 1834, when Webber failed ; that all the notes indorsed for him, of a date previous to January 8, 1834, were taken up by Webber ; that the amount of the payee’s liabilities as indorser, at the time of Webber’s failure, was about $8500 ; that he has since been compelled to take up notes to that amount, which had been indorsed by him for Webber ; that the plaintiff had never indorsed any notes nor incurred any liabilities for Webber ; that the payee indorsed the note in suit, to the plaintiff, two or three years ago, as collateral security for about the sum of $3000, which he then owed to her and which is still due. The payee also testified, that Webber was indebted to him at the time when the note and mortgage were made. But it was proved by the testimony of Webber, that the only demand which the payee had against him at that time, was a note of $1400, secured by a mortgage of real estate, which was paid before the failure.</p> <p>On May 3, 1828, the payee executed and gave to Webber a writing, whereby he promised to discharge and annul the note and mortgage, on demand, whenever Webber should pay to him whatever sums of money he then owed or might owe to the payee, and should save him harmless from all damages which he might sustain by reason of his indorsing any note for Webber or rendering himself responsible in any way, on his account, and should moreover discharge the payee from his promise to indorse certain notes for him</p> <p>If the special. pleas in the first action were not correctly ruled out, or if the ruling of the judge at the trial in relation to the time of the commencement of the action should be considered erroneous by the whole Court, then a new trial was to be ordered. If the Court should be of opinion, that the plaintiff was entitled to recover, Webber was to be defaulted, and judgment rendered for such sum as the Court should think the plaintiff entitled to recover ; otherwise the plaintiff was to become nonsuit.</p>

This was an action of qui tam, brought by a field driver against the defendant for a pound-breach. Plea, the general issue.

<p>In an action by an administrator upon a promissory note payable to the intestate, the administrator having called as a witness a son of the intestate, who had released to the administrator all his interest as one of the heirs in the note, executed and delivered to him an instrument in writing, not under seal, by which, in considera* tion of the sum of $50, alleged to have been received of the witness, the administrator agreed to pay all the costs of such action, and to make no claim therefor in any settlement of his administration account or otherwise. It was held, that the son was thereby rendered a competent witness.</p> <p>Before a promissory note, executed by two promisors, and attested by one witness, was delivered to the promisee, the name of another person was added to the note as a witness, without the knowledge of such person ; but it did not appear that this was done by the promisee, and no fraud on his part was suggested. In an ac tion upon such note, it was held, that the addition of such name was not a material alteration, and did not render the note void.</p> <p>The 10th of^the Regulas Generales [16 Mass. R. 373] provides, that t( the party producing a deposition may, if he .see fit, withdraw it during the same term in which it is originally filed, in which case it shall not be used by either party.” And where a number of depositions taken on the part of the plaintiff under the same commission, were fastened, returned and filed together, it was held, that the defendant was not entitled to use at the trial such of the depositions as were not read by the plaintiff.</p>

The will of Elijah Crane, the husband of the appellee, con tained the following clause : “ As to my wife, Kezia Crane, my will is, that she shall have her dower out of my estate, in the same manner she would be entitled to, if this will had not been made.” This was the only clause in the will relat' ing to the wife. At a Court of Probate held in November, 1834, the appellee waived the provision made for her in the will.

<p>Assumpsit for money had and received. The parties stated a case.</p> <p>Prior to March 31, 1835, the defendant, as sheriff, attached the personal property of Tyler Pettee, the plaintiff’s intestate, on several writs, and on that day T. Metcalf and H. G. Ware, the first and second attaching creditors, together with Pettee, signed the following memorandum. “ Needham, March 31, 1835. We, the subscribers, request and consent that John Baker 2d, sheriff of the county of Norfolk, shall sell or cause to be sold, at public vendue, all the personal property of Tyler Pettee in Needham, which he has attached on our writs, as soon as convenient, and hold the proceeds of the same for the purpose of satisfying the judgments that may be recovered in said suits, by priority of attachment.”</p> <p>The defendant, on April 10, 1835, sold by public auction die property mentioned in the memorandum, and the net proceeds amounted to $453-68, which sum is now in the hands of the defendant.</p> <p>Pettee died on April 11, 1835, and his estate has been represented insolvent, and commissioners have been appointed to receive and examine the claims of his creditors.</p> <p>Ware recovered judgment in his suit against Pettee, in the Common Pleas in Suffolk, for $867-98. The judgment was entered on the 14th of April 1835, as of the first day ot the term, being the 7th of April, by consent of Pettee, given in writing on the 10th, that it might be entered against him on any day of the term. Metcalf recovered judgment for $81-95, against Kingsbury as administrator of Pettee, at September term, 1835, of the Common Pleas in Norfolk.</p> <p>Kingsbury, as administrator of the estate of Pettee, demanded of Baker the abovementioned sum of $463-68, before the commencement of this action.</p> <p>It was agreed that judgment in this action should be entered upon nonsuit or default, as the Court should direct upon the foregoing facts.</p>

<p>The St, 1803, c, 146, incorporating a turnpike corporation, authorized the corporation to erect a gate in such place as should be directed by a committee appointed by the statute; and the committee accordingly, by their report dated in 1807, prescribed the limits within which the gate should be erected. It was held, that the corporation having once established a gate in conformity with such report, could not afterwards remove it to another place at their own discretion, although within the limits prescribed, but must comply with the provisions of St. 1804, r* 125, § 13, [Revised St. c, 39, § 28, 29,] in relation to this subject; and that the} .xiuld not legally demand toll, at the place to which the gate was so removed.</p>

<p>Where it appears by die answer of a party summoned on a trustee process, that he is chargeable to some amount, at all events, he is to be adjudged trustee; the question to what amount he is chargeable, is not open in this stage of the cause, but is to be determined on scire facias, in case he shall not pay over on the execution against the effects in his hands, so much as the plaintiff shall consider him liable to pay.</p>

<p>Trespass. By an agreed statement of facts it appeared, that the defendant dug and carried away six barrels of clams from the flats-ground at the southerly end of the plaintiff’s farm, which was called the Wigwam farm ; and that he justified under a license from John Baker 3d, who was the owner of Castle Hill farm, and Tristram Brown. No other clams were dug there by the defendant, nor by Baker or Brown, during the year.</p> <p>John Patch, who was the former owner of both farms, de vised to his daughter Mary Lakeman, (from whom the plaintiff derived his title,) and to her heirs and assigns, his “ lower farm, formerly called Wigwam Hill, bounded as follows, viz., Beginning at the river, and from thence running by the creek, &c., and down into the sea, with the privilege of the clams,” &c. By another clause in the will he devised to his “ daughter Elizabeth Choate and to her heirs and assigns, that part of my farm called Castle Hill, bounded, &c., and half a mile of the lower end of the beach to be measured at high-water mark for drift wood and timber of all sorts, and all the remainder of my beach, with a privilege of digging ten barrels of clams yearly at the southerly end of my farm.’1’’ James Baker, who derived title to the Castle Hill farm through several mesne conveyances from Elizabeth Choate, conveyed a portion of his interest therein, to wit, the beach and cJam flats, to John Baker 3d and Tristram Brown. James Baker died intestate, leaving his father his sole heir, by whom the farm was conveyed to John Baker 3d</p> <p>If the Court should be of opinion that the plaintiff was entitled to recover, the defendant was to be defaulted ; otherwise the plaintiff was to become nonsuit.</p>

This was a writ of entry in which the demandants counted on their own seisin. The tenant pleaded mil disseisin. The trial was before Morton J. On November 26, 1828, the tenant who was the original proprietor of the demanded premises, conveyed them to Lucy Mills, in fee ; and by a deed of the same date Lucy Mills reconveyed them to Lydia P. Williams, wife of the tenant. On July 14, 1831, the tenant joined his wife in executing a mortgage deed of the premises to Lucy Mills.

<p>Assumpsit to recover the cost of certain articles furnished for repairs and necessaries, for the use of the schooner Susannah, in May, 1826. Trial before Morton J.</p> <p>The plaintiff offered in evidence the certificate of the collector of the district where the vessel belonged, by which it appeared, that at the time when the articles in question were supplied, she was enrolled in the name of the defendant.</p> <p>The plaintiff then called Samuel Buffum as a- witness, who testified, that in August, 1828, he presented to the defendant, the bill which is the subject of this action ; that the defendant said that he formerly owned the vessel, but had sold her before the supplies were furnished ; that the witness replied that he understood the vessel stood in the defendant’s name, and if so, he was accountable ; and that the defendant then said that he had not given a bill of sale of her, but kept it back for his own security.</p> <p>The defendant then read the deposition of Joshua Staples, who produced a bill of sale of the vessel to himself, executed by the defendant, and deposed, that it was delivered before the supplies were furnished ; and that the vessel was mortgaged back by him to the defendant.</p> <p>It. also appeared that the defendant, in 1827, received from the government of the United States, on account of this vessel, which was then under a fishing license, the bounty granted to fishing vessels.</p> <p>There was no evidence, that the vessel was in the possession or employment o.f the defendant between the time of the alleged sale and the time when the supplies were furnished.</p> <p>The jury were instructed, that if they believed that the bill of sale produced by Staples was executed and delivered before .the repairs and supplies were made and furnished, it would pass the property in the vessel from the defendant, and he would not be responsible.</p> <p>The jury returned a verdict for the defendant.</p> <p>The plaintiff moved for a new trial, on tbe ground af a misdirection of the jury.</p>

Trespass quare clausum fregit. Trial before Morton J. The defendants were defaulted. The facts are set forth in the opinion of the Court. The parlies claimed under the will of John Patch, devising upland and an adjoining beach.

<p>The holder of a promissory note bequeathed to his wife all the income or interest of his personal estate, and his administrator from time to time paid to the wife, out of the estate, an amount equal to such income, without taking any receipt; bu£. nothing was received upon such note till after the death of the wife, when the note was paid to an administrator de bonis non. In an action by the executor of the wife against the administrator de bonis non, to recover the interest which accrued on the note from the time of the death of the testator until that of the wife, it was held, that the payments to the widow, by the original administrator, were not ad missible in evidence as a ‘payment of such interest; that the re-delivery of the note by the widow, after it had been indorsed to her by the original administrator, was not evidence of an intent to relinquish her claims to such interest ; and that evidence of fraud on the part of the widow and the original administrator, who was also her residuary legatee, for the purpose of defeating the rights of those claiming under the will of her husband, was not a defence to such action.</p>

Trespass against the defendant, who was a deputy sheriff, for taking and carrying away a schooner called the Bashaw, alleged to be the property of the plaintiff. The defendant pleaded the general issue, and filed a brief statement setting forth, that he attached the vessel as the property of Warren Averill, at the suit of John Stone.

This was an action upon Si. 1783, c. 44, § 3, against a deputy sheriff.

The defendant was indicted for selling distilled liquor to oe drunk in his shop, contrary to St. 1832, c. 166, passed for the regulation of licensed houses. The indictment contained eight counts alleging, that the defendant, being licensed to sell wine, brandy, rum, and other distilled spirits by retail only, did, at eight several times, presume to sell to different persons, half a gill of distilled spirits, to be drunk in his shop. The defendant pleaded not guilty.

<p>By a contract in writing between P, who was in possession of certain land, ^nd the defendant, it was agreed, that their conflicting claims thereto should be submitted toan arbitrator, whose award should be final. The arbitrator awarded, that lie defendant had no legal claim to the land, and that he should execute a release to P ; but he refused so to do. P. subsequently died, and his administrator sold ti.e land under a license of court, and conveyed the same to the purchaser, but without covenanting for the validity of the title. A bill in equity was thereupon brought by the purchaser, in his own name, and by the administrator, to*compel the defendant to execute a release. It was held, that the administrator wao a necessary party to such suit ; that the agreement to refer was equal and mutual ; that the agreement and award passed in equity to the purchaser with the land, although not assigned in express terms, the administrator having affirmed the assignment thereof, by becoming a party to the suit, and having authority to make such assignment; and consequently that such suit was rightly brought, and the purchaser entitled to a decree.</p>

<p>A mortgage of land before foreclosure or entry for condition broken, is personal estate.</p> <p>Upon the death of a mortgagee of land before entry, hie administrator with the will annexed, recovered as such administrator an unconditional judgment for possession of the land, which was delivered to him in pursuance of the judgment. Subsequently the mortgager conveyed all his right and title to the land, to the administrator, but without describing him as such in the deed. In the account of the ad ministrator, the debt due upon the mortgage was credited at its nominal amount, but a certain sum was deducted in pursuance of an agreement, made with the legatees without the knowledge of the sureties of the administrator ; and a balance was found to be due from the administrator, upon the settlement of the account in tiie probate court, from which settlement no appeal was made. It was held, that as the conveyance by the mortgager could only operate as a release of the equity of redemption, it did not vest a new estate in the administrator in his own right, but only rendered the defeasible estate already vested in him an absolute estate, in trust, to be administered upon as assets of the mortgagee ; that if by the agreement with the legatees, the administrator was to take the land in his own right, thereby leaving the sureties liable for the payment of the balance due from him, such agreement could not be supported ; that a conveyance of the land bv such administrator without a license of court, passed no estate to the grantee, or if technically any estate passed, it was clothed with the same trusts under which the administrator held it, and any person attempting to take a title under the administrator would be deemed to take with notice of such trusts ; and that the land in the hands of any such person was applicable to the relief of the sureties of the administrator, from their liability for the balance due from him.</p>

<p>A deposition in which the witness testified that a professed imitation of the luna writing of his father, who was a public officer, bore a strong resemblance to the genuine handwriting, was held to be admissible, notwithstanding it was objected, that the witness had not laid a foundation for such an opinion, by stating that ho had seen his father write; for if the party objecting had doubted, whether the witness was sufficiently acquainted with the handwriting of his father, he should have interrogated him directly as to his means of knowledge, when the deposition was taken.</p> <p>Upon the question as to the genuineness of a signature, the genuine signature of the same person to a paper not otherwise competent evidence in the case, is admissible to enable the court and jury, by a comparison of the hands, to determine die question.</p> <p>Upon the same question, the opinion of a writing-master, professing to have skill in detecting forgeries, formed from a comparison of hands, without any actual knowledge of the handwriting of the person whose signature is in controversy, is competent evidence.</p> <p>The opinion of such witness, formed merely from an inspection of the contested signature, in regard to its being in a natural or a simulated hand, is competent evidence.</p> <p>Upon the cross-examination of a witness, the court may, in its discretion, permit leading questions to be put, although relating to matters not inquired of upon the direct examination.</p>

<p>This was assumpsit on a special contract. The decoration also contained the money counts</p> <p>The report of the auditor to whom the case was referred, set forth, that for several years previous to April 28, 1828, there had been dealings between the defendant and Jacob Douty, in the course of which Douty had purchased goods and borrowed money of the defendant, and the defendant had paid money for his account ; that on January 26, 1826 and September 18, 1826, Douty, by two warranty deeds of those dates respectively, mortgaged to the defendant all his real estate, being all the land of which his father and mother died seised, to secure the payment of $1200 and interest; that on Ju\y 10, 1827, Douty, at the request of the defendant, quit-claimed to him all his title in the mortgaged lands, the consideration set forth in the deed being the sum of $500 paid by the defendant to Douty, but Douty testified that he received no consideration ; that on April 16, 1828, Douty assigned to the defendant certain personal property as a further security ; that on April 26, 1828, the defendant being desirous of selling the real and personal estate above mentioned, agreed with Douty and his wife, that she should convey to him her right of dower in the real estate, for the consideration of the sum of $400 to be paid her by the defendant, and the further consideration of the sum of $100 to be paid for her benefit, upon the condition stated in an agreement in writing hereafter set forth ; that such release of dower was accordingly executed on the same day ; and that on April 28, 1828, the defendant executed and delivered to the plaintiff the following agreement, as part of :be consideration of such release :</p> <p>“ It is agreed by Abner Sanger, that as he is about to make sale of the real and personal estate that Jacob Douty has con veyed to him the said Sanger, that if it sells for so much that he shall realize two hundred dollars more than the amount said Sanger has paid said Douty and all charges of interest of money heretofore paid said Douty, then said Sanger agrees to pay to Elias Needham, for the benefit of Eliza Douty, ind her children, the sum of one hundred dollars.”</p> <p>This agreement was the subject of the present action, the leclaratiou, in effect, alleging, that the defendant had sold the -state and had realized more than the sum of $200 over and bove his claims against Jacob Douty.</p> <p>The report further set forth, that the defendant employed Asa T. Newhall, an auctioneer and land surveyor, to con duct the sales of the real and personal estate ; that Newhall, accordingly, on the 14th and 24th days of May, 1828, sold the whole thereof by auction, except a part of an island in Humphrey’s Pond, valued at $50 ; that the defendant was 'present, and when the conditions of sale were made known, stated publicly to the persons present, that he would not give a warranty deed of the real estate, but should quitclaim to purchasers, that his object in selling, was to get what was due to him, and that he should bid upon the property, and if he bought any of it, he should get it on the conditions of sale, as others would ; that the defendant accordingly purchased all or nearly all the real estate and some articles of the personal property ; that the gross proceeds of the sale amounted to the sum of $3143-06, and the net proceeds, after deducting the expenses and the commissions of the auctioneer and of the defendant, to the sum of $3018-40 ; and that on November 11, 1828, Newhall rendered his account of sales to the defendant,, and the defendant gave him the following receipt : “ Then Asa T. Newhall, Esq. settled and accounted to me for the above account of sales.”</p> <p>The auditor allowed the sum of $2506-68, as paid by the defendant for Jacob Douty, previously to April 28, 1828, interest being included therein from the time of the payments to May 24, 1828, the day on which the sales were completed. In this amount was included the sum of $400, as paid for the release of dower.</p> <p>It was further proved before the auditor, that after the sales the defendant paid the sum of $270-81, on account of claims against Joseph Douty, the father of Jacob Douty, or against the latter as administrator of his father, &c. ; and the defend ant claimed to have this sum added to the amount paid by him before April 28, 1828, because the payment of such claims was necessary in order to extinguish existing liens on the real estate, which he contended he had a right to remove, mas-much as Jacob Douty had warranted it to be free from all in cumbrances. But the auditor rejected this claim, on the ground that payments made after the sales, could not come</p> <p>within the intention jf the parties as indicated by the terms of the written agreement.</p> <p>It further appeared, that Jacob Douty commenced an action against the defendant, for the purpose of effecting a settlement of their mutual accounts ; that the action was compromised, and receipts in full passed between the parlies, the receipt given by the defendant being dated November 13, 1833 ; that the defendant at that time gave his check for the sum of $200, to Jacob Douty, and also a promise in writing to pay a debt of about $50 due from the latter, and agreed to release to him his estate in the island in Humphrey’s Pond. The defendant objected to the admission of these facts in evidence, it appearing from the receipt, that such money and written promise passed from the defendant to Jacob Douty as a compromise of the action. But the auditor was of opinion, that such facts were admissible in evidence in the present action.</p> <p>The defendant offered witnesses to prove, that after the sales, he sold certain parcels of the real estate, which he had bid in at the first auction, and he contended, that these last sales were to be taken as the means of ascertaining the amount actually realized by him from the property. But the auditor was of opinion, that the first sales must be taken as real sales of the property, that the defendant was bound in this action to account for the net proceeds thereof, and that the evidence offered of any subsequent sales was irrelevant.</p> <p>The defendant contended, that interest on the sums paid by the defendant to Jacob Douty ought to be calculated to November 1828, the time of the final settlement by Newhall of his account of sales. But the auditor was of opinion, that interest ought to be calculated only to May 24, 1828, the day when the sales were completed by Newhall.</p> <p>The defendant also contended, that no sale of the property bad been made by the defendant at the time when the present action was commenced, and therefore that the condition in the written agreement, upon which the money claimed in this action was to become due, had not happened ; and that the undertaking of the defendant in that agreement was wholly without a legal consideration.</p> <p>The defendant also contended that he was discharged from such agreement, because Jacob Douty, by his action against him and the settlement thereof, took from him the fund, out of which the payment was to be made, if the agreement was to be performed at all. But the auditor reported that he was not discharged thereby.</p> <p>The defendant further contended, that Jacob Douty, who was produced as a witness by the plaintiff, was not competent, by reason of his interest in the event of the present action, he being entitled by the decease of his wife, before the action was commenced, to claim her portion of the money which might be recovered. But the auditor, being of opinion that the witness had no direct interest in the event of this action, permitted him to testify.</p> <p>Newhall testified, that he called at the house of Douty and procured the signatures of Douty and his wife to the deed releasing her right of dower; that the defendant was not present ; that he was not certain whether he took the deed after it was signed, to the defendant, or not, he rather thought he did ; that he was not certain he did not leave it with the parties who signed it. He further testified, that Douty requested him to assist in selling the property ; that at the auction the sum of $1300 was bid for the homestead, and that the defendant having thereupon bid the sum of $1305, it was struck off to him ; that the land would have sold for more, if a warranty had been given ; and that the defendant calculated that after the payment of his own claims, there would be the sum of $700 in his hands, and that if he was obliged to pay $500 to Douty’s wife, there would be only $200 left for other creditors.</p> <p>The defendant was defaulted ; and it was agreed, that the default should stand or a nonsuit be entered, as the Court should determine on the facts.</p>

Assumpsit. The writ, which was dated September 20, 1834, contained two counts. The first count was for the sum of $1000, money had and received, paid, lent, &c. The second count was on an insimul computassent for another sum of $1000.

Assumpsit for the breach of a contract for building the hull of a schooner called the Savage. The defendant pleaded the general issue.

<p>Scire Facias. The writ set forth, that a judgment was recovered in this Court, against Charles Starbuck and others ; that a writ of execution issued thereon was returned non est inventus, and otherwise in part unsatisfied ; that Starbuck did not abide the judgment ; and that Ethan Earle, now living, and Shepherd Leach, then living but since deceased, were bail for Starbuck. Wherefore the writ commanded, that Earle, and that Lincoln Drake and others, who were the executors of Loach, the other bail, should be notified to appear and show cause why execution should not be had against Earle and against the goods and estate of Leach in the hands of his executors.</p> <p>The plaintiff moved that execution should issue against the goods and estate of Leach. The executors of Leach resisted the motion on the ground of misjoinder of them, in their capacity of executors, with Earle, and therefore prayed that the plaintiff should be nonsuited. The plaintiff thereupon, not admitting that there was any misjoinder, moved nevertheless to amend his writ by striking out the name of Earle. The executors denied that such amendment could lawfully be allowed.</p> <p>If the Court should be of opinion,.either that there was nc misjoinder in the writ, or that leave might be granted to amend by striking out the name of Earle, the plaintiff was to have execution accordingly ; otherwise he was to become nonsuit.</p>

<p>On the death of one of four partners and the consequent dissolution of the partnership, one of the survivors took out letters of administration upon the estate of tne deceased partner, and the three survivors formed a new partnership and took to themselves the stock on hand, giving each his own individual note, for one third of the appraised value, payable to the three. It was held, that this supposed sale was ineffectual, and that the three surviving partners were jointly accountable to the funds of the old partnership, for the value of the stock.</p> <p>By an indenture of partnership, between one as a silent partner and three others as active partners, it was stipulated that the profits and losses should be shared equally, and that the active partners should constantly endeavor to promote the joint interest by their attention and industry, and upon the determination of the copartnership, should make a true, just and final account of all things relating to the firm, and well and truly adjust the same. It was held, that the active partners were not entitled to compensation for their services, after the dissolution of the partnership, in settling the partnership concerns.</p> <p>The partnership having been dissolved by the death of the silent partner, it was held, that .he surviving partners should be charged with interest on his share of the capital stock, aftsr the lapse of a reasonable time for settling the partnership concerns.</p> <p>By the indenture the partnership was to continue three years, and the active partners took, in their individual names but for the use of the firm, a lease of a store for five years, which was occupied by the firm until its dissolution by the decease of the silent partner, and afterwards the residue of the term was disposed of by the surviving partners at an advanced rent. It was held, that the estate of the deceased partner was entitled to a proportion ot the advance in the rent.</p> <p>After the death of the silent partner the surviving partners continued the business o*" the firm as usual until the time fixed by the indenture fur the termination of the partnership, and during that interval contracted some bad debts and made some profits. It was held, that if the estate of the deceased took a share of such profits, it should also be charged with such bad debts ; that the whole of the transactions should be adopted or the whole repudiated.</p> <p>On a bill in equity for an account between partners, after a dissolution of the partner ship :nd after the disposal of the joint property, the proceeds being in the hands of a receiver, the Court will permit a creditor to intervene by petition, for the Lurpose of obtaining satisfaction of a debt due from the partnership.</p> <p>Goods belonging to a partnership were consigned to a merchant abroad, for sale part of them in the lifetime of all the partners, and the residue after the deaíii cf one of them and consequent dissolution of the partnership, by the surviving part* ners, and advances were made upon the goods by the consignee before and after the death, which went into the partnership funds and were applied to the debts of the firm; the consignee having no notice of the death. The proceeds of the sales fell short of the sums advanced. It was held, that the consignee’s claim to reim bursement for the excess of his advances, as well upon the goods consigned after as upon those consigned before the death, was chargeable upon the partnership funis in the hands of the surviving partners. 0</p>

<p>Assumpsit on a parol agreement of indemnity;</p> <p>At the trial, before Wilde J., it appeared that by an indenture between the parties, dated December 4, 1829, the plaintiff agreed to sell, and the defendant to purchase, a parcel of land in Portland street in Boston, on terms specified in the indenture. The plaintiff stipulates that he will convey the .and, on June 1, 1830, by a warranty deed, free from all incumbrances. The instrument contained this clause : “ And whereas the brick walls of the buildings adjoining said land on each side may stand some inches on said land, said Weld is in no way to be liable either to said Nichols or to the owners of said brick walls in consequence thereof, but is to be indemnified by said Nichols from all claims on this account.”</p> <p>The division wall on one side of the land had been erected by one Luther, with the consent of Weld, partly on Weld’s land.</p> <p>George Gay, Esquire, being called by the plaintiff, testified that in the spring of 1830, the plaintiff and defendant came to his office to get a deed made of the land above mentioned. The defendant was about to obtain money upon a mortgage of the land, and desired to have the indenture cancelled, for the purpose, as the witness supposed, of satisfying the person who was to take the mortgage. The plaintiff declined cancel-ling it, on account of the provision above recited. The plaintiff and the defendant both seemed to think there was no legal claim against the plaintiff, in respect to the walls, and it was thereupon agreed by the defendant, in consideration that the plaintiff would cancel the written agreement, that if any claim should at any time thereafter be made and enforced against the plaintiff, concerning the walls, the defendant would pay the plaintiff any and all sums which the plaintiff should be so obliged to pay, and all costs and expenses that might arise in any way by reason thereof. Whereupon the plaintiff consented, and the written agreement was cancelled, and the deed of the land was given. In 1831 Luther instituted a suit against the plaintiff respecting the wall. While that suit was ponding in the Common Pleas the witness saw Nichols in the office of Weld’s counsel, as if consulting and preparing for defence. After the verdict in the Common Pleas, Weld desired the witness to send for Nichols and informed him of the amount, including costs and expenses, that he might pay it. The witness did so, and Nichols came to his office, and said lie expected to pay what was right, but that the verdict was high and he would consult Mr. Parker. The case was carried by appeal, to the Supreme Court, as the witness under* stood, at the desire of Nichols. The reason for sending foi Nichols was to ascertain whether he would abide by the verdiet, or appeal,- as it was considered that he was the party interested.</p> <p>On May 12, 1830, the time of cancelling the indenture, the plaintiff certified upon it, that the defendant “ has this day performed and done all things relating to the above agreement by him to be performed and done, and has paid the money according to the above agreement.”</p> <p>S. D. Ward, Esquire, testified, that he was counsel fot Luther in the suit against Weld, and that Nichols was in court at the hearings ; that there were many counts in the writ, and one, he. believed, was upon an express promise; that the judge ruled that no express promise was proved, and put the case to the jury upon the implied promise.</p> <p>The amount of the judgment of Luther against Weld, for damages and costs, was $430-89 ; and the counsel fees and expenses were $117-64; making together $548-53. On March 27, 1834, Weld made a demand on the defendant to pay this sum.</p> <p>It was testified by Luther, that Nichols had made use of the walls ; that Weld never denied that the walls ought to be paid for, but always said that Nichols ought to pay for them because he used them and it was so understood.</p> <p>The plaintiff proved and put into the case the record of the judgment and execution receipted, in the suit of Luther against Weld, and a bill of the fees paid by Weld to his counsel in the defence.</p> <p>The defendant objected to the admission of the evidence produced by the plaintiff to prove the promise, on the ground that the promise was within the statute of frauds.</p> <p>The judge instructed the jury, that if they believed the testimony cf Mr. Gay, the cancelling of the indenture was a sufficient consideration for the promise- declared on ; that the bargain did not affect the title to real estate, and that the statute of frauds did not apply ; that if Nichols was present at the trial of the action against Weld, and was called on to determine whether an appeal should be claimed, and in fact knew that the case was pending in the appellate court, he would be answerable for all the costs and expenses, but if the jury doubted as to his knowing and acquiescing in the appeal, then the expenses after the appeal should not be allowed.</p> <p>The jury found a verdict for the plaintiff for $574'S6, the whole amount of damages, costs and expenses, with interest from the time of the demand.</p> <p>If the instructions were wrong, or the parol evidence was not admissible, or the plaintiff .was not entitled to recover, the verdict was to be set aside and a new trial granted ; or the verdict was to be reduced, if such should be the judgment o' the Court.</p>

<p>Assumpsit to recover a sum of money which the plaintiff alleged that he had paid to the defendant by mistake. The counts in the writ were for money had and received, money lent and accommodated, and money paid. The defendant pleaded the general issue.</p> <p>At the trial, before Morton J., it appeared, that the plaintiff was the manager of the Tremont theatre, and that in 1833, he employed the defendant and his daughter to perform twenty-five nights, commencing on April 15th and ending on May 17th ; and that for these services he paid the defendant $8384, being one half of the gross receipts of the theatre during the time of the defendant’s engagement.</p> <p>The plaintiff claimed to recover back ¿£25 sterling per night, (excepting the benefit nights,) that sum being the estimated expenses of the house per night.</p> <p>The plaintiff put his claim upon two grounds : 1. That he had paid the defendant a sum of money beyond the terms of the contract between them ; and if not, 2. That the defendant, by misrepresentation and fraud, obtained more favorable terms than he was entitled to.</p> <p>By the correspondence between the parties it appeared, that rn September 28, 1832, the defendant wrote to George H. Barrett, the plaintiff’s stage manager, “ that we do not intend to act for less than a clear half of the house nightly. These are our terms in England, Scotland, Ireland and America.” On October 18, 1833, the plaintiff wrote to the defendant, “ f have concluded to accede to your terms, viz. half the houses but only however with the express understanding, that, as as sured by you, they are as favorable as you perform for at any other theatre.” On January 23, 1833, the plaintiff wrote tc the defendant, “ I have requested Mr. Barrett, while in New York, to see you on the subject of visiting Boston, and have authorized him to accede to your terms, of half the houses, but with of course the same understanding as heretofore, that, as assured by you, they are the same with all other managers.”</p> <p>Several payments of half the gross receipts had been made to the defendant during his engagement. On the 16th of May, 1833, the plaintiff wrote to the defendant: “ You will recollect having at all times, during our negotiations, stated your willingness to perform with us on as favorable terms as at any other theatre, and with which understanding on my part, as you are well aware, I .authorized Mr. Barrett to settle your present engagement. You assured me that you received, these terms (half the receipts) at all the theatres. Since our correspondence, I am however informed by what I consider to be good authority, that you have not in fact received from the Park theatre the same terms above alluded to. . I am ready to settle your engagement without any demur, on being satisfied of the fact that you have not performed at the Park theatre on any other terms than one half of the entire receipts.”</p> <p>Thomas Barry, offered as a witness on the part of the plaintiff, was objected to on the ground of being interested in the event of the suit. On this point the witness stated, that he was indebted to the defendant when this suit was commenced, and when he was summoned in it as the defendant’s trustee ; and that the defendant had a suit pending against him for the' sum due from him. The objection to the witness was overruled, and 1 e thereupon testified, that he was manager of the Park theatre in New York, from September 1832 to July 1833 ; that the defendant and his daughter performed there ; that he did not know what the contract was, but the defendant informed him, that it was made in London, and that it was this, that the defendant was to receive one half the gross receipts, after deducting £50 sterling per night for the expenses ; that the defendant was settled with upon these terms ; and that the witness did not inform the plaintiff on what terms the defendant played at New York, until after the witness came to Boston, in August 1833.</p> <p>The defendant’s counsel, in opening his defence, stated that •the plaintiff must prove fraud in the contract in execution of which the money was paid, and that he must make it out clearly and strictly, or he could not recover; and that even if the fraud were proved, yet that the money was paid voluntarily, with a full knowledge of all the circumstances, and therefore could not be recovered back.</p> <p>George H. Barrett, being called by the defendant, testified that in making the contract with the defendant he acted as the agent of the plaintiff; that the witness was invited into the defendant’s parlour on the night of May 16th, and the defendant showed him the plaintiff’s letter of that day ; that the defendant was much excited ; that he said, “ my engagement was made with you, and I shall not play to-morrow night unless I am paid; ” that the witness gave him his word that the engagement should be paid ; that on the next morning the witness mentioned this conversation to the plaintiff; that afterwards the plaintiff gave the witness the money, and the witness paid it to the defendant; that the defendant, at all times, represented that he had half the gross receipts at all the other theatres.</p> <p>It appeared that the play bills had been posted up and the tdvertisement published, giving notice that the defendant and his daughter were to act the next night, before the conversafon between Barrett and the defendant took place.</p> <p>Upon this and other =$• fence the cause was submitted to the jury. The defendant *. counsel- requested the judge to nstruct the jury, that taking all the facts to be proved, which</p> <p>the plaintiff attempted to prove, still this action in this form could not be supported by the rules of law. The judge declined giving this instruction, and stated to the counsel, that in his opinion the plaintiff could not recover on the ground of fraud or misrepresentation in making the contract between the parties, but only upon proof that the ,plaintifF had paid more than the defendant was entitled to by the true construction of the contract entered into ; and that this question should be submitted to the jury. The plaintiff’s counsel objected to this opinion, and the point was reserved. He then argued to the jury, that the substance of the contract between the plaintiff and defendant was, that the defendant should have one half of the gross receipts, provided that he had not and did not perform at any other theatre on more favorable terms, and that he would perform for the plaintiff on as favorable terms as he did or had done at any other theatre.</p> <p>The jury were instructed, that it was incumbent on the plaintiff to prove the contract as above stated, to enable him to recover ; that if the contract was, that the plaintiff should pay to the defendant one half the gross receipts, then the action could nor be maintained, even if it was proved that the de ■ fendant obtained the contract by misrepresentation or fraud ; that if the' plaintiff paid the money voluntarily, and with a knowledge of all the circumstances, then he could not recov • er, even if the contract were as he contended it was ; but that it was necessary that he should not only prove that the money was paid by a misapprehension of his obligations, but that it was done through mistake and ignorance, or that he was compelled to pay it.</p> <p>The jury returned a verdict for the plaintiff; and the defendant moved for a new trial, because the verdict was against law and against the evidence.</p>