Volume 35 — Massachusetts Reports

<p>A petition to a judge of probate to allow an appeal from his decree, and a formal decree granting suck petition, are not usual in practice, nor requisite to the validity of an appeal.</p> <p>On an appeal from a Court of Probate, the appellant is restricted to the points specified in his reasons of appeal, but not to the same arguments, views or evidence which were presented before the Court of Probate.</p> <p>In general, if a guardian neglects to put his ward’s money at interest, he will be charged with interest ; and in cases of gross delinquency, with compound interest.</p> <p>A guardian is entitled to a reasonable time in which to make an investment of his ward’s money.</p> <p>Where a guardian had settled two accounts in the Probate Court without charging himself with interest, and no adjudication was made on this subject, it was held* that on the presentation of his third account he should be charged with interest from an early period after his appointment, in the same manner as if no previous account had been settled.</p> <p>But if the question of interest had been put in issue and decided on the settlement of the former accounts, it could not be revised so long as the former decrees remained in force.</p> <p>Where a party interested in the estate of a ward, certified his approval of an account in which the guardian had not charged himself with interest, but no discussion or controversy was had on ¿his subject, it was held that he was not precluded from having the error corrected when the guardian presented a subsequent account for allowance in the Probate Court. But where a ward, seven months after coming of age, certified that his guardian's final account was correct, and gave him a release of all demands, he was not permitted to open the settlement because the guardian had not charged.himself wi.h interest.</p> <p>In a guardian’s account the interest for a year should be added to the principal, and the currsnt expenses of the year should be deducted from the amount, and 4Jte balance will be the principal for the next year ; and so on from year to year.</p>

<p>8. L. joined with hia wife in executing a deed, with covenants of warranty on his part, which contained the following clauses : “ I, S. L. and H. L., wife of S. L., (in her right as to one quarter part of the hereinafter described and granted premises,) in consideration of &c., do hereby give, grant, sell and convey unto B. all right, title and interest, which we have in and to ” certain land ; “three undivided quarter parts of the land hereby conveyed, belong to S. L. in his own right, in fee, and the remaining fourth part belongs to S. L. and to H. L., his wife, in fee, in her right ; ” “ to have and to hold the aforegranted premises to B,” &c. ; “ in witness whereof we, S. L., and H. L., my wife, in token of our conveyance of all right, title and interest, whether in fee or in freehold, in the premises, have hereunto set our hands,” &c. It was held, that the wife was barred by such deed, of her right to dower in the three undivided fourth parts of the land which belonged #o her-husband. [See Revised Stat. c. 60, § 7.]</p>

<p>Assumpsit for goods sold and delivered. Hoi well, one cf th— defendants, did not appear. The other defendant, John Magoun, pleaded, that he never promised jointly with Holwiell. At the first trial of this cause, a verdict was returned for the defendant ; but a new trial was granted, on the ground that the verdict was against the evidence.</p> <p>The second trial was before Wilde J. It was admitted, oa the part of the plaintiffs, that the bargain was made in the name of Hoi well only, and that the goods were charged to him on the books of the plaintiffs.</p> <p>Witnesses were produced on both sides,.to prove and disprove, respectively, the existence of a partnership between Holwell and Magoun. The jury returned a verdict for the defendant. The plaintiffs moved for a new trial, on the ground, that the verdict was against the evidence.</p>

<p>Assumpsit to recover the sum of $282-59, paid by the plaintiff to the defendants for a case of French printed muslins. The declaration consisted of several counts, alleging that the goods were not the articles of merchandise described, and that they were damaged. The trial was before Wilde J.</p> <p>The defendants, who were originally the owners of the goods in question, consigned them to Coolidge & Haskell, to be sold by auction ; and accordingly, on April 26th, 1833, they were offered for sale on the following conditions of sale : ‘•'Under $100, cash, $ 100 and upwards, six months satisfactory indorsed notes. No allowance made for damage on sample packages, nor on any other packages, unless applied for within three days from the sale, at which time the bills must be settled.” These conditions were printed on the catalogue of the goods to be sold, and were read by the auctioneers before the sale commenced.</p> <p>The goods in question, which were described in the catalogue as superfine French printed muslins, were purchased by the plaintiff at the auction, and were returned to the defendants on the 27th of June following. The defendants refused to accept them, but told the plaintiff, who insisted on leaving them, that they might remain on storage.</p> <p>In this state of the case, the judge ruled, that the conditions of sale were binding on the plaintiff, and that he bad no righ* to return the goods after the expiration of the three days from the time of the sale.</p> <p>The plaintiff contended, that the limitation of three days in die conditions of sale, did not apply to the owners of goods sold at auction, and offered evidence to prove, that according to the custom of merchants in Boston, goods were returned by purchasers at auction to the owners, and received by them, or allowances made, after the expiration of the three days, if within a reasonable lime after the sale. This evidence was objected to by the defendants, and rejected by the judge.</p> <p>If this evidence was rightly rejected, the plaintiff was :o necome nonsuit ; otherwise a new trial was to be granted.</p>

<p>Two days before the expiration of a policy, fully insuring a vessel on time, the defendants made a policy insuring the same vessel, at and from Boston to Charleston# the second policy providing, that if the assured should have made prior insurance upon the vessel, then the defendants should be chargeable only for so much as the amount of such prior insurance should be deficient towards fully covering the property at risk, whether for the whole voyage, or from one port of loading or discharge to another. The vessel sailed from Boston before the expiration of the first policy, but was lost after it had expired. It was held, that the second policy attached, notwithstanding the first policy continued in full force till after the vessel had sailed from Boston, and that the defendants were consequently liable for the loss.</p>

<p>The decision by a single judge of this Court, of a question of fact upon the hearing of a probate appeal, may be excepted to, and may be revised by the whole Court, if the judge fully reports the evidence. It is, however, within the discretion of the judge, at such hearing, to sustain a motion for the revision of his judgment as to matters of fact, and report the evidence, or not.</p> <p>Where, upon the application of the widow of an intestate for letters of administration, it appeared, that she was under the influence of a person who was indebted to the estate in a large amount, and who was charged with combining with the intestate in his lifetime to defraud his creditors, and that such application was made at the request of such debtor and not to protect or subserve the interest of the widow, it was held, that she was an unsuitable person to administer. *</p> <p>If a party applying for letters of administration is evidently unsuitable to discharge the duties of such trust, the judge of probate is authorized and is bound to deny his petition.</p>

This was an action of assumpsit against three defendants, Burrill, Kimball, and Valentine, formerly copartners' under the firm of Burrill, Kimball & Co , to recover the balance of an account stated. The defendants pleaded jointly non assumpsit, and issue was joined thereon. The case was once tried before Morton J. and a new trial was granted. (See 16 Pick. 401.) It came on again for trial, at November term 1835, before Wilde J., upon the same issue.

<p>Assumpsit. The writ was dated March 30th, 1835. The defendant pleaded the general issue, which was joined ; and also actio non accrevit infra sex annos. To the second plea the plaintiff replied, that the plaintiff and the defendant were merchants, and that the causes of action arose out of their mutual dealings and accounts, as merchants, and concerned the trade of merchandise. The defendant, in his rejoinder, traversed these allegations ; and issue was joined thereon.</p> <p>The plaintiff filed a bill of particulars, purporting to be an account current between the parties. This account contained various charges against the defendant for flour, beef, mustard, rice, &c. sold to him during the years 1810 and 1811, amounting to the sum of $1706-73, and also the following charge : “ 1815. Sept. 23. Leads of Mustards, $16-00.” The de fendaut was credited in the account with promissory notes a id cash given or paid during the year 1811, amounting, with a small quantity of coal, to the sum of $ 1083-15. He was also credited with the following item : “1816. Nov. 16. Cash for flour and mustard, $29-50.”</p> <p>The trial was before Wilde J.</p> <p>The plaintiff, in order to prove the last items on the debit and credit side of the account, offered in evidence the corresponding entries in his books, verified by his own oath, that they were regular entries in his handwriting and entered at the time of their dates. This evidence was objected to by the defendant, but was admitted by the court.</p> <p>■Winslow- Lewis, who was called as a witness by the plaintiff, testified that the defendant was a merchant, but became insolvent in the year 1811, and after having been at sea about a year, opened a private insurance office ; and that from that time to the present the defendant had been the president of an insurance company, or an insurance broker, and had not been engaged in mercantile pursuits for more than twenty-two years before the date of the writ.</p> <p>The plaintiff contended, that the last items on the debit and credit side of the account were a continuation of the account of 1810 and 1811, so as to bring the whole account within twenty years ; and that the item of credit in 1816, of $29-50, being more than sufficient to balance the item of $ 16 in 1815, was such a payment towards the former account, as would be equivalent to an acknowledgment of the debt.</p> <p>The judge instructed the jury, that if they thought that the two last items in the account were between the plaintiff as a merchant and the defendant as his customer, and not between merchant and merchant, then the transaction must be considered the commencement of a new account, and not a continuation of the old account, so as to bring it within tw'enty years ; that if the jury thought the payment of the sum of $29-50, made by the defendant to the plaintiff in 1816, was for specific items in the account of 1810 and 1811, which were not of such a character as would fall within the exception of merchants’ accounts, such payment would not be, in law, an acknowledgment of the other items of the account, so as to prevent or avoid the presumption of payment arising from the lapse of twenty years.</p> <p>The jury found, that parcel of the demands in the declaration contained, were within the exception of merchants’ accounts, and as to these, the jury found that the same had been paid to the plaintiff; and as to the residue of the items constituting the plaintiff’s demand, they found, that the defendant never promised.</p> <p>The plaintiff moved for a new trial on account of the instructions of the court.</p>

<p>This was assumpsit, brought by the owners of the brig Pandora against a freighter, to recover the contribution due from him on general average.</p>

<p>Under the act of Congress of 1792, c. 24, empowering consuls of the United States to take possession of the personal estate left by any citizen of tile United States who shall die within their consulates, and therewith “ to pay the debts due from his estate which he shall have there contracted,” a consul is not authorized to pay a claim, not reduced to a judgment, for damages for a wrongful act committed by the deceased.</p> <p>The defendant, who was consul of the United States at Buenos Ayres, being about to visit tlie United States, appointed K. acting consul during his absence, but the chargé d’affaires of the United States at Buenos Ayres refused to recognize K. as such, and performed the duties of consul himself, until the appointment of K. was approved by the government of the United States ; and in consequence of such refusal, K. was prevented from receiving the emoluments of that office for several months. The chargé d’affaires subsequently died intestate, and the defendant, in pursuance of the act of Congress of 1792, c. 24, took possession of his property, and, having sold it, transmitted to the plaintiff, who was appointed administrator in this State, an account of the disposition made of it, showing a balance in favor of the estate, which the defendant claimed to retain on account of the intestate’s refusal to recognize K. as acting consul. It was held, that the defendant, by setting up such claim, ceased to act under that statute ; that lie had no lien on the property for the alleged tort of the intestate ; and that ati action at law might be maintained by the plaintiff against him, in this State, to recover such balance.</p>

<p>Assümpsit to recover certain rents, incomes and profits, received by the defendant. The parties stated a case.</p> <p>On March 15th, 1819, John Ballard, the elder, made his will, containing the following devises :</p> <p>“ I give to my sons, John Ballard [the defendant] and Joseph Ballard, and my daughter, Sally Carter, for the term of ten years after my decease, the improvement and income of my tavern farm, so called, in Saugus aforesaid, bounded as.set forth in the deeds of James Robertson and others to me, as will appear on record ; also, for the like term often years after my decease, the improvement and income of the following pieces of land : ” [describing them.]</p> <p>“ Item, I give and devise to my grandchildren, the sons and daughters of my said sons, Joseph and John, and my daughter, Sally Carter, after the expiration of ten years from my decease, all those lands and tenements which I have now given the improvement of for ten years as aforesaid to my said sons, Joseph and John, and my daughter, Sally Carter, to have and to hold to them, their heirs and assigns forever.”</p> <p>On March 2d, 1824, the testator died.</p> <p>At the time when the will was executed, the defendant had four children, Henry S., Charles A., Mary G. and Francis G. ; Joseph, the other son of the testator, had four" children, Joseph H., James M., Elizabeth and the plaintiff; and Sally Carter had five children, William B., Eliza R., Mary B., John B. and Henry. William B. Carter and Eliza R. Carter and Elizabeth Ballard, the daughter of Joseph Ballard, died, without issue, previously to the decease of the testator. John B. Carter died intestate and unmarried, after the decease of the testator, but before the expiration of the ten years. The defendant also had a daughter, Helen M., who was born subsequently to the execution of the will, but previously to the decease of the testator, and two children, John S. and Anna L., born subsequently to the decease of the testator, but before the expiration of the ten years. Joseph bad likewise two children, George L. and Elizabeth, born subsequently to the decease of the testator, and before the expiration of the ten years, and an infant, born since the commencement of this action, and after the expiration of the ten years.</p> <p>The question submitted to the Court was, what share of the rents and profits of the real estate received by the defendant, after the expiration of ten years from the death of the testator, the plaintiff was entitled to recover.</p>

<p>Where an assignment was made by an insolvent debtor ro a creditor, in trust for tbe benefit of the assignee and such other creditors as should execute the same within a certain time, and the assignee accepted the trust, and a portion of the creditors became parties to the assignment, it was held, that those creditors who had executed the assignment, were hot authorized to annul it and attach the property, before the expiration of such time, without the consent of the other creditors, although the debtor had withheld the evidences of debts due to him, and had refused to deliver to tfie assignee, and fraudulently wasted, a part of the property assigned ; that the assignee was bound to allow all the creditors to become parties to the indenture, within the time limited ; that a creditor whom the assignee had, within such time, refused to permit to execute the assignment, might enforce the execution of the trust or recover an equitable compensation ; and that the assignee was bound to account, not only for the property which he had received, but for such as might have been recovered by him from the debtor by the use of due diligence.</p> <p>An assignment by an insolvent debtor of e< all his lands, tenements and hereditaments,” was held sufficient to pass all his real estate, without a more particular description.</p>

<p>By a policy of insurance on a vessel, the defendants “ caused C. & L., for the owners, payable to C. & L., to be insured.” It was held, that an action might be maintained on such policy in the names of such owners, with the consent of C. St L., it not appearing that the defendants had any claim against C. St L.</p> <p>Where, at the taking of a deposition in another State, under a commission, (previously to the recent rule of court on this subject,) for the use of the plaintiffs, an attorney was present on their part, but no one was present for the defendants, it was held, that such deposition was nevertheless admissible in evidence ; and that it was too late to take such objection, if it were valid, at the trial, it appearing that more than a year before the trial, it as known to the counsel who then -conducted the defence. [Rules of Sup. Jud. Court, No, 7.]</p>

<p>Assumpsit on a warranty alleged to have been given, upon the sale of a quantity of mackerel by the defendants to the plaintiffs. Trial before Shaw C. J.</p> <p>The bill of parcels, which was receipted and was dated May 22d, 1834, set forth, that the plaintiff Winsor bought of the defendants 199 barrels and 69 half barrels No. Í mackerel, and 376 barrels and 196 half barrels No. 2 mackerel.</p> <p>The plaintiffs introduced evidence for the purpose of showing, that they were joint purchasers ; but having failed to prove that they were jointly interested in the purchase, their counsel moved for leave to strike out the name of Peleg Churchill, one of the plaintiffs. This was allowed, although objected to by the defendants ; and the trial proceeded as if the action had been originally commenced in the name of Winsor alone. The defendants excepted to this ruling.</p> <p>There was evidence tending to show, that the fish were damaged, but that the damage proceeded principally from rust; that this is caused by the leaking out of the pickle, after the fish have been packed, inspected and branded ; and that although fish affected by rust are greatly deteriorated, and are never marked by the inspector as No. 1 or No. 2, yet that they are not wholly unmerchantable, but are allowed to pass inspection as No. 3. All claim for damage arising from any other cause than rust, was expressly waived by the plaintiff.</p> <p>The jury were instructed, that, upon a sale by a bill of parcels, like that in this case, although the article sold was one required, by the statutes of the Commonwealth, to be inspected by a public inspector, and although the mackerel were inspected and branded No. 1 and No. 2, in pursuance of the statutes, yet as to damage arising from.causes originating after they were so inspected and branded, there was an implied warranty, that the fish were in a good condition, and of a merchantable quality of mackerel of those brands respectively, at the time of the sale ; and that, therefore, if the jury were of opinion, that the fish were damaged by rust, and that this was occasioned by causes originating after the mackerel had been inspected and branded, and further, if according to the known usage of the trade, mackerel affected by rust are not considered as No. 1 or No. 2, though they may pass as No. 3, there was a breach of the implied warranty, for which the plaintiff was entitled to recover damages.</p> <p>To this instruction the defendants excepted.</p> <p>There was also evidence tending to show, that the fish in question were packed, inspected and branded in the autumn of 1833 ; that the casks were then w?ell filled with pickle ; and that the sale took place in the following May.</p> <p>In reference to this evidence, the jury were instructed, that if the damage arose from rust, and the cause of the rust was the want of pickle, commencing after the inspection and before the time of the sale, it was one of those things against which the defendants warranted, even although they believed that the mackerel were, at the time of the inspection, what the brands on the casks indicated, and that for aught they had known to the contrary, these brands had been truly and faithfully applied, and that no alteration or change had happened within their knowledge.</p> <p>To this instruction the defendants excepted.</p> <p>If either of these instructions was incorrect, the verdict, which was for the plaintiff, was to be set aside, and a new trial granted.</p>

<p>Where a note is payable on demand at a specified bank, no demand need be made at any other place, and in an action against an indorser, it will be presumed, in the absence of evidence to the contrary, that the note was at the bank, and that some officer of the bank was in attendance to receive payment.</p> <p>Under the St. 1819, c. 43, providing, that corporations shall be continued bodies corporate for the term of three years after the expiration of their charters, for the purpose of settling their concerns, but not for the purpose of continuing the business for which they were established, a bank is authorized, immediately before the expiration of such term of three years, to indorse a note held by it, to trustees appointed to wind up the affairs of the bank, and vested by it with all the powers of the corporation. [See Revised Stat. 44, § 7.]</p> <p>Where a note indorsed by the payee to a bank of which P. H. F. was the cashier, was again indorsed as follows : “ P. H. F., Cashier,” it was held, that such second indorsement was sufficient. And it seems, that in an action upon such note, by the second indorsees against the payee, if the second indorsement is not sufficiently certain, the plaintiffs may, at the trial, prefix the name of the bank to such indorsement.</p> <p>An indorsement written on a slip of paper, which was attached to the back of a note by a wafer, for the purpose of writing receipts of partial payments thereon, there not being room on the back of the note, was held to be sufficient ; the indorsement having been made after several of such receipts had been written on such attached paper.</p>

<p>This was a bill in equity brought by the widow and children of Thomas Leach, against James Leach, his brother.</p> <p>The bill alleges, that on or about the 29th of December, 1827, Thomas and James executed an indenture of copartnership, which is made a part of the bill.</p> <p>By this indenture it is, among other things, agreed, that Thomas and James shall and do become copartners under the firm of Thomas & James Leach, in the trade of importing, buying, vending and retailing English and domestic dry goods ; that the copartnership shall continue five years from the 1st of February, 1828, unless sooner determined by mutual consent or the death of James, but the death of Thomas shall not determine the copartnership, “ nor shall any part of the stock in trade or other property of the firm be withdrawn on that event, but the same shall continue to be used and employed by the said James, as is provided hereinafter, for the benefit and at the risk of those who shall be entitled to the same ; ” that Thomas “ shall furnish and deliver in as stock the sum of $20,000,” and u that the stock in trade of the said Thomas now in his store, &c. shall be taken towards and as a part of said sum, at a just appraisement thereof by impartial men to be hereafter appointed by the parties;” that “James shall manage the said business and stock in trade as to him shall seem meet, with the advice of Thomas, upon the trust never theless, that he shall, out of the proceeds of sales of the said stock, keep up and continue the said stock at its quality and value as the same shall be received by him, and shall by and out of the profits which shall be received from the said trade, pay all rents and taxes which shall be payable on account of said firm and trade, and shall defray all the usual and necessary expenses of the said trade, and shall pay to the said Thomas one full and just half part of all the residue of the profits of the said trade, and shall retain for his own use and benefit the remainder of all said profits as and for a full and entire recompense for his care, trouble and labor in the management of the said trade ; ” that James “ shall not, during said term, in any manner trade or deal in his own name or for his private account, but only in the name of the said firm and for the trusts tforesaid ; ” and that at the termination of the copartnership, James shall “ take a full and just account in writing, of the said stock then remaining in the said trade and of the expenses and profits thereof, and deliver the same to the said Thomas,” and shall “ deliver up to Thomas, his executors, administrators or assigns, for his or their use or benefit, all the stock then remaining, to the value of twenty thousand dollars, losses by bad debts, decay of goods, and inevitable accidents excepted.”</p> <p>The bill further states, that on or about the same 29th of December, 1827, Thomas made his will, in which, after giving to his wife certain real and personal estate, he declares it to be his intention to give her a full third part in value, of.his whole estate, and “ to make up the said third part in value,” he gives to his wife so much of his stock in trade as shall, in addition to the above expressed devise and bequest, be sufficient for that purpose ; and he says, “ins my will that the said stock shall be estimated at the cost thereof, and that no part not interest in my said stock in trade hereby given to my said dear wife shall be withdrawn by her before the termination of my agreement of partnership with my brother James Leach, but that the same shall be suffered to remain and be employed, as by said agreement is provided, for the benefit and at the risk of my said dear wife ; ” he gives his brother James the residue and remainder of all his estate, real and personal, in trust for the testator’s six children, “ that is to say, I direct my said trustee to sell, invest and manage the said residue and remainder as shall in his discretion seem most advantageous.” “ I direct my said trustee to pay or transfer to my daughter Mary Ann one full sixth part of the said residue at her age of twenty-one years or upon the day of her marriage, whichever shall first happen ; ” and the testator appoints his widow and James his executors.</p> <p>The bill further alleges, that about the last day of January, 1828, Thomas Leach died ; that James continued until the 1st of February, 1833, to carry on the business at the store in Court street ; that it was then the duty of James to sell and dispose of the goods and other stock then remaining, in such manner as should be most advantageous for all persons interested therein, and settle the partnership concerns, and distribute the proceeds of the stock, and the profits of the business, among the parties respectively entitled thereto ; but the bill charges, that he refuses so to do, and that he insists upon distnbuting the goods remaining in the store, to the amount of $ 20,000, est'mated at their cost but not salable for that sum, specifically among the plaintiffs, as and for a return of the capital advanced by Thomas Leach ; and that having obtained, during the copartnership, a new lease of the store for a term of years extending beyond the term of the copartnership, in his own name, he is carrying on the business for his own sole ac~. count, avading himself of the good will of the store for his private benefit. And whereas the defendant pretends that he is not responsible for any proportion of bad debts and other losses, which have arisen in the course of the business, but that the same are wholly to be taken out of that portion of the capital and profits which belong to the plaintiffs, the plaintiffs charge that the defendant is not at liberty to throw upon them any of the losses, but that he is bound to bear his proportion thereof by charging them against the profits of the firm or otherwise. And the plaintiffs further charge, that if the true construction of the indenture, in respect to the bad debts and the specific division of the goods, be not as they have alleged, then it was erroneously drafted and by mistake of the scrivener, and was executed by the parties under a mutual misapprehension.</p> <p>The bill prays that the defendant be required to answer and to render an account, and for the appointment of a receiver, and for further relief.</p> <p>The defendant, in his answer, alleges that Thomas Leach, by his will, directed that the stock to be employed in trade, should be estimated at the cost, and in consequence of this and of the frequent declarations of Thomas to the same effect, the stock in the store of Thomas at the time when the copartner ship commenced, amounting to about $ 15,000, was not appraised ; that he has a right and is under obligation to distribute specifically among the widow of Thomas and such of his children as may have come of age, their proportions of the goods of the firm, to wit, to the amount of $ 20,000, valuing the seme at cost, remaining unsold at the expiration of the copartnership ; that the partnership goods in the store amount to about $24,000 ; that as to the lease of the store, which the complainants allege he has procured for his own use, for a term of five years from the expiration of the former term, he is advised that he had a good right so to do ; that he has occupied the store for about three years last past, under this lease ; that the probability that he would succeed to the good will of the store, was held out to him as an inducement to enter into the copartnership ; and that it was always understood by him, and, as he believes, by Thomas, that he was not to bear any part of the losses that might arise from bad debts or otherwise, and that he was to surrender a stock at the expiration of the copartnership equal in amount and quality to that received at the commencement, bad debts, decay of goods and unavoidable accidents excepted ; and that the articles of copartnership were not erroneously drawn.</p> <p>The plaintiffs filed a general replication.</p>

<p>The plaintiffs, who were the holders of a promissory note of a corporation, in which the stockholders were personally liable for its debts, agreed with the defendant, who had purchased up most of such debts, that they would accept thirty-five per cent of the amount due on the note, and deliver the note to him, but that, in case one F. should be consideied chargeable with the amount of such note, by reason of his being or having been a stockholder, whatever might be obtained from F. should belong to them, the defendant not assuming to make any attempt for the recovery thereof from F. except at their request and expense, and being authorized to discharge any other member of the corporation, however it might affect the claim reserved in favor of the plaintiffs against F. At the time when this agreement was made, an action was pending, in which the liability of F. was in controversy; but before it was decided, the defendant, in consideration of a certain sum paid by F., without the knowledge of the plaintiffs, made a compromise with him of all claims against him on account of the debts of the corporation, including the note in question, and discharged him from all his supposed liability therefor, but without discharging the other members of the corporation. The plaintiffs afterwards, and when the note was barred by the statute of limitations, directed the defendant to take all necessary measures for the collection from F. of the balance due on the note, and authorized him to draw on them for the expenses thereof. It was held, that as the defendant had authority to discharge the other corporators, the effect of which would he to exonerate F. from liability, except perhaps for his share of the debts in proportion to the amount of his stock, if the defendant could make a compromise with F. equally favorable to the plaintiffs without discharging the other corporators, he liad authority to do so and the plaintiffs were not entitled to recovei of the defendant the whole sum due on the note.</p> <p>Held also, that although it had never been determined that F. was legally Hable» yet as he had made a voluntary payment to the defendant on account of this note, the plaintiffs were entitled to the benefit of it.</p>

<p>Assumpsit on a policy of insurance, dated August 30th, 1833, by which the defendants insured the plaintiff, for whom ‘t concerned, the sum of $5000, on the brig Cambridge, valued at that sum, including the premium, for one year, at sea and in port. By the terms of the policy, the sum insured was payable to the plaintiff in case of loss.</p> <p>The declaration averred, that Waldo Peirce, Robert Treat arid Andrew Tyler, the master, “ were interested in said vessel to the amount of all the sums insured or by them caused to be insured thereon, and that said insurance was effected by this Pontiff by their order and on their behalf; ” and the plaintiff . claimed as for a total loss of the vessel by the perils of the sea, while prosecuting a voyage from New York to Mobile.</p> <p>The trial was before Putnam J. The plaintiff offered evidence to show, that the vessel, while prosecuting the voyage, struck oh Carysford reef, and remained there in great peril, for twenty-eight hours, leaking badly ; that in order to relieve her a part of the cargo was thrown overboard, and a part discharged into wreckers, which came to her assistance ; that the vessel was then got off and carried into Key West, where she arrived on February 3d, 1834 ; that a survey was had on her at Key West, and the surveyors directed that she should proceed on her voyage to Mobile, and be there further examined ; that the vessel arrived at Mobile, on the 2d of March, and on the 15th of the same month had discharged her cargo and was lying in safety at a wharf in Mobile ; that surveys were held upon her, and estimates were made of the expenses of repairs considered necessary ; that the surveyors recommended a sale of the vessel, and she was accordingly sold by the master, by auction, on April 2d, 1834 ; that the purchaser took pas session immediately on the sale, and repaired her and sent her to sea.</p> <p>In order to prove an abandonment, the plaintiff proposed to offer evidence showing, that about the 13th of May, when the facts became known in Boston, and the papers had arrived, the plaintiff, who resided' in Boston, called at the office of the defendants, with the protest, and the other usual documents, to prove the loss, and a statement of the loss made up by an insurance broker, and demanded payment as for a total loss. The statement thus presented purported to be the statement of a claim for salvage loss on the vessel, occasioned by her getting on the Florida reef, on her voyage from New York to Mobile, at which latter place she was surveyed, condemned and sold for the good of all concerned ; it then charged the value of the vessel, and credited, by way of salvage, the proceeds of the sale, first deducting all charges. The judge ruled, that this was not sufficient to prove an abandonment, but that an abandonment must be made in writing.</p> <p>The defendants then offered evidence to show, that the vessel was actually repaired for a much less sum than that stated in" the estimates ; and the plaintiff was about to introduce evidence to prove, that she was imperfectly repaired, that she could not have been made as good a vessel as she was before the accident occurred, without repairs exceeding one half of her value, after deducting one third new for old, and that in her situation a sale was for the interest of all concerned, when, on motion of the defendants, the judge ruled, that the master had no authority to sell under the circumstances, without notice to the owners and insurers, that the sale was therefore unjustifiable, and that, as there was no abandonment, the plainitff was not entitled to recover as for a total loss, although the expenses for repairs, estimated as for a partial loss, would have exceeded half of the value of the vessel, and although a sale might have been advisable for all concerned.</p> <p>The case was thereupon taken from the jury, in order that it might be submitted to the whole Court to determine upon the correctness of these rulings.</p> <p>If the Court should be of opinion, upon the facts-stated and the evidence offered by the plaintiff to prove the necessity or expediency of a sale, that a sale without notice to the owners and insurers, might be justifiable, or that the evidence offered by the plaintiff was admissible and competent to prove an abandonment and so enable the plaintiff to recover for a constructive total loss, a new trial was to be granted. If the Court should be of opinion, that the sale was not justifiable, so as to constitute an actual total loss, and that the evidence offered by the plaintiff to prove an abandonment, was inadmissible or incompetent for the purpose of constituting a constructive total loss, ther. the case was to be sent to the jury, to ascertain the facts as to the place where the vessel should have been repaired, a id such other facts as might be necessary to be found by a j iry, in order to enable an assessor to make up the partial loss.</p>

<p>In an action on a contract under seal, in winch one of the contracting parties is seeking to enforce the contract against the other, die defendant may plead that the contract was obtained by fraud and imposition.</p> <p>In an action on a contract under seal, whereby the defendants became sureties that one P. should perform his contract with the plaintiff, which likewise was under seal, it was held, that the defendants might plead that P’s contract was voidable by reason of fraud and imposition, and that P. in consequence rescinded it.</p> <p>Where the declaration averred that the plaintiff, by a contract under seal, sold and conveyed a steam engine to P., and that he gave P. an order for the engine, and that the defendants, by an instrument under seal, became sureties for the payment of the debt due by P., and the defendants pleaded that the plaintiff falsely and fraudulently made representations as to the engine, by reason whereof the connact of sale was void and P. refused to perform the same, wherefore the instrument executed by the defendants was void, it was held, that as it did not appear by the record that the engine had been delivered to P., the plea was good, especially after verdict, although it did not aver that the engine, or the order for its delivery, had been returned to the plaintiff.</p> <p>Held also, that the defendants’ contract, whereby they became sureties “ for the payment of the debt due by P.,” did not estop them from showing that the contract of sale was voidable and avoided, so that no debt was due from P. to the plaintiff.</p> <p>The averment in the defendants’ plea, that the plaintiff falsely and fraudulently made ' certain representations respecting the steam engine, and that by reason thereof the contract between P. and the plaintiff was void and P refused to perform it, was considered, after verdict, as equivalent to an averment that P. had rescinded the contract.</p> <p>It appeared that the plaintiff falsely and fraudulently represented to P. that the engine was a twenty-horse power engine ; that it was fit for mining purposes ; that it was in good order and had been so certified by engineers ; that it was free from rust ; that it had been standing but two or three years. It was held, that these false representations related to matters of fact and not of opinion ; and that as they were material to the interests of P., and had a tendency to prevent him from inquiring into the condition of the engine, and as he reposed confidence in them, dxey rendered the contract of sale voidable by him.</p> <p>Held also, that P. was a competent witness for the defendants to prove such misrepresentations, he not being liable to the defendants for the costs of the action again# them.</p> <p>If, upon a sale, the vendor makes material representations of matters of fact, as ol his own knowledge, to be true, and they are in fact untrue, and the vendee is de ceived thereby, the sale will be voidable, although the vendor did not know whether they were true or not.</p>

<p>An obstruction of a way appurtenant to land in the occupation of a tenant at will, may be an injury to the lessor, although it do not affect the reversion, nor cause an abatement in the rent ; consequently the lessor may maintain an action of the case for such obstruction, upon showing that he lias been damnified thereby.</p> <p>Husband and wife may join in an action of the case for an obstruction of a way appurtenant to the. wife’s land, in their occupation or possession.</p> <p>In such an action, an averment in the declaration, that the plaintiffs weré seised of t'ne land in demesne as of fee in right of the wife, was held, after verdict, to include virtually an averment of occupation or possession.</p> <p>If a party having a right of way licenses the owner of the soil to build an arch over the way, but such owner unnecessarily and unreasonably obstructs the way in building the arch, an action on the case will lie for the abuse of the license.</p>

<p>This was a case of probate appeal, tried at the bar of this Court. The decision depended mainly upon questions of fact on the evidence, but some points of law were ruled in the course of the trial.</p> <p>Oliver Pratt, the respondent, offered the will of Benjamin Sargent, late of Chelsea, for probate ; a will in which he was appointed executor, and was also the principal devisee. The appeal was taken by the heirs at law, who resisted the probate of the will. It appeared that Sargent, the testator, was a man of peculiar character and habits, and had long been under guardianship, as a person non compos mentis, and for several years past, and at the time of making the will, Pratt himself had acted as his guardian, but under letters of guardianship issued without notice to the ward, and therefore contended to be void. It further appeared, that Pratt had married the only daughter of the testator, but she had deceased without issue before the making o'f the will. The several questions discussed weie, upon the legal capacity of the testator to make a will, his sanity, and fraud and imposition of parties interested in procuring its execution.</p>

<p>In the absence of all rights acquired by grant or adverse user for twenty years, the owner of land may dig a well on any part thereof, notwithstanding he thereby diminishes the water in his neighbour’s well, unless in so doing he is actuated by a mere malicious intent to deprive his neighbour of water.</p>

<p>A testator gave to his daughter, a feme covert, ** the interest of 50,000 dollars, from the lime of his decease, during her natural life, at her decease the principal to be equally divided among her children and his executors, being residuary devisees and legatees, gave bond to the judge of probate for the payments of all the debts and legacies. It was held, that the testator did not intend to place the sum above mentioned in trust for his daughter, and secure to her the Income thereof, but that he intended to give her a definite annual sum, equal to the lawful interest on 60,000 dollars, to be paid by his executors out of his estate.</p> <p>The statute of February 28th, 1831, § 2, provides “ that persons entitled to the in come of any personal properly held by others in trust for themselves, or for the particular and special use of their wives, shall be taxed for the capital or principal sum." It was keld9 that under the foregoing bequest there was no <c capital or principal sum ” owned legally or equitably by, or held in trust or otherwise for the testator’s daughter, and that consequently she was not liable to taxation under this clause of the statute.</p> <p>An investment of 50,000 dollars, made by the executors, without the consent of the daughter, in trust to pay her the income, was held to have no effect upon her rights in regard to taxation under the above provision of the statute.</p>

<p>A mortgage of real estate was made to secure the payment of a negotiable promissory note, and the mortgagee, not being in possession, assigned the mortgage, during the pendency of an action against him for slander, in order to avoid more effectually the judgment which might be recovered against him, and subsequently died solvent, and his administrator assigned the same mortgage to a bond fide purchaser, for a valuable consideration. It was held, that the prior assignment was fraudulent, and that it was void, under St, 27 Eliz. c. 4, as against such subsequent purchaser.</p>

<p>The answer of Henry F Baker, the trustee, set forth, that just before the service of the writ upon him, he received, as the agent of Thomas Wilson & Co. of London, and on their account, a certain sum of money, by virtue of a policy of insurance belonging and payable to them ; that he was not accountable therefor to any other person than his principals, and that the defendants had not and could not have any claim against him therefor ; that he had received a letter from his principals, intimating to him the propriety of paying over the whole of such money to D. & A. Jackson, of Plymouth, the owners of the brig Cybele, upon the cargo of which vessel the policy was written ; that he was about to have paid the same to them ; but payment was suspended by reason of the service of the plaintiffs’ writ upon him as the supposed trustee of the defendants.</p> <p>The following extract of a letter from Wilson & Co. to the trustee, dated November 6, 1834, was annexed to the answer : “ We also hand you the affidavit of Capt. Appling, setting forth the claim of his owners, Messrs. D. & A. Jackson, of Plymouth, for freight on this sugar. After having secured the balance due us, you will of course dispose of any amount that may remain in your hands arising out of the recovery of the average, as may be proper under the circumstances.” Also, annexed to the answer was a protest signed by Appling, in which it is stated that D. & A. Jackson had chartered the brig Cybele with the defendants, to be laden at Pernambuco with a cargo of sugars ; and that Wilson’& Co. furnished the credits for the purchase of the cargo ; and that the defendants are indebted to the ship-owners in the sum of £ 359 sterling for the amount of deficient freight.</p> <p>The cause was argued in writing.</p>

<p>This was assumpsit, to recover the sum of $ 10,000 insured by the defendants, for Barrett & Brown, upon property on board the brig Soule, at and from Boston to Antwerp. The action was commenced in April, 1835. The policy was dated the 8th of February, 1834. It contained the following clauses : “ And in case of loss, such loss shall be paid in sixty days after proof and adjustment thereof ; the amount of the premium note, if unpaid, and all sums due to the company from the insured, when such loss becomes due, being first deducted ; and all sums coming due being first paid or secured to the satisfaction of the said president and directors, they discounting interest for anticipating payment.” — “ It is also agreed, that this policy shall be void in case of its being assigned, transferred, oi pledged, without the previous consent in writing of the insurers.”</p> <p>At the trial the plaintiff produced in evidence the invoice and bill of lading of 800 bags of coffee, shipped by Barrett & Brown on board the Soule, on February 14th, 1834, which were valued at the sum of $ 17,185-19.</p> <p>It was admitted, that the vessel sailed from Boston with this cargo, on or about the 14th of February, 1834, and had never since been heard from.</p> <p>The plaintiff proved by a memorandum on the back of the policy, that the policy was transferred to him by Barrett & Brown, for a valuable consideration, on the 23d of June, 1834 ; and that the defendants assented to such transfer on the same day, by their memorandum in writing, also indorsed on the policy, in which they reserve “ to themselves all their rights expressed in the policy regarding premium notes, debts, &c.”</p> <p>The defendants did not dispute their liability for a portion of the sum insured ; but they claimed the right to deduct by way of set-off: —</p> <p>1. A premium note, dated January 2d, 1834, for the sum of $201, given by Barrett & Brown for a policy on the barque Kent.</p> <p>2. A premium note, dated January 11th, 1834, for the sum of $ 121, given by Barrett & Brown for another policy on the Kent.</p> <p>3. A premium note, dated January 8th, 1834, for the sum of $376, given by Barrett & Brown for a policy on property by vessels from La Plata.</p> <p>4. A premium note, dated February 8th, 1834, for the sum of $ 126, given for the policy declared on in this action.</p> <p>5. A premium note, dated September 26th, 1834, for the sum of $ 158-50, given by Barrett & Brown for a policy on the schooner Charlestown.</p> <p>6. A premium note, dated October 1st, 1834, for the sum of $ 1, given for a policy on property from La Plata.</p> <p>7. A bond, dated January 11th, 1834, given by Barrett & Brown as principals, and James Gibson and Z. B. Adams as sureties, to secure the sum of $ 8000 lent on bottomry of the barque Kent.</p> <p>It was admitted by the defendants, that the Kent had arrived m Boston, and had not been taken possession of by them ; and that she was sold by Whitwell & Bond, auctioneers, by order of the assignee of Barrett & Brown, the defendants at the time giving notice in writing, of their lien, to Whitwell & Bond ; and it appeared that Bond gave an obligation to account to the defendants for the proceeds of the sale of the vessel. No suit had been brought by the defendants against the sureties on the bond.</p> <p>Pelham W. Hayward, the secretary of the defendants, was called as a witness by them, and testified that the bond was unpaid ; and that a partial loss and a general average loss, amounting to the sum of $4995-05, with interest in addition, were due from the defendants to Barrett & Brown under the policies for which the premium notes, Nos. 1 and 2, were given. The defendants contended, that this amount should fi-st be deducted from the sum due on the bond, and that the balance, together with the premium notes, should be deducted from the loss claimed in this action.</p> <p>The plaintiff called Adams as a witness, who testified, that he was, and for several years had been, the owner of real and personal estate exceeding in value the sum of $ 8000, which was exposed to attachment.</p> <p>The defendants offered evidence to prove, that an action was pending in this Court, in favor of the plaintiff against the American Insurance Company, to recover the amount due on a policy, dated February 8th, 1834, for the sum of $ 10,000, effected by Barrett & Brown, “on coffee, on board brig Soule, at and from Boston to Antwerp ; ” and that this policy was transferred to the plaintiff by Barrett & Brown, with the assent of the American Insurance Company.</p> <p>The defendants also offered in evidence a writing, dated in December, 1835, by which it was agreed between the defendants and the American Insurance Company, that the two policies effected by Barrett & Brown upon property on board the brig Soule, should be considered as simultaneously executed by the two companies.</p> <p>To the admission of this evidence the plaintiff objected; but the objection was overruled.</p> <p>In each of the two policies assigned to the plaintiff, which are in the form now in use in Boston, it is “ agreed, that if the insured shall have made any other insurance upon the property aforesaid, prior in date to this policy, then the said insurance company shall be answerable only for so much as the amount of such prior insurance may be deficient towards fully covering the property at risk, &c. ; and in case of any insurance upon the said property, &c. subsequent in date to this policy, the said insurance company shall nevertheless be answerable, to the full extent of the sum by them herein insured, without right to claim contribution from such subsequent insurers ; and shall accordingly be entitled to retain the premium by them received, in the same manner as if no such subsequent insurance had been made.”</p> <p>The defendants also called William J. Hubbard, Esq. as a witness, who testified, that he was of counsel for the American Insurance Company in the action against them ; and that they paid into court the sum of $4345-28, under the common rule, which, with the amount of the set-offs claimed by them, con sisting of the balance due on a bottomry bond on the brig Tim, and sundry premium notes, was equal to one half of the sum of $ 17,185-19, the amount of the invoice of coffee ; and that the plaintiff had taken the money out of court.</p> <p>The plaintiff objected to the admission of this testimony , but the objection was overruled.</p> <p>A verdict was taken for the plaintiff by consent, for the sum of $ 10,500, which was to be reduced or enlarged according to the opinion of the Court.</p> <p>The case was argued in writing.</p>

This was an action upon the policy mentioned in the preceding case, dated February 8th, 1834, whereby the defendants caused Barrett & Brown to be insured $ 10,000, on coffee on board the. brig Soule, at and from Boston to Antwerp.

<p>Writ of entry to recover the possession of one undivided sixteenth part of certain land, claimed by the demandants in the right of the wife, Rebecca Tucker, as one of the devisees or heirs at law of Catharine Stevens.</p> <p>The parties stated a case.</p> <p>Catherine Stevens died in 1825, seised of the premises in fee simple ; and her will, which was dated June 29th, 1818, contained the following clauses : “ I will and bequeath unto George Stevens, Elizabeth Joy and Mary Ann Hitchborn, children of my son Peter Stevens, the following sums of money, to wit, to said George, one hundred dollars, to Elizabeth Joy, the sum of fifty dollars, and to Mary Ann Hitch-born, the sum of one cent. I also give and bequeath unto the children and heirs of my son Henry, the sum of one cent each. Also I give unto Mary Gear, daughter of my daughter Rebecca Sancry, the sum of one cent. I also give and bequeath unto Elizabeth Andrews, daughter of my son John Stevens, and also to George Stevens, Mary Jones and John Stevens, children of my son George Stevens, and also to Rebecca Andrews, Ann Proctor, Isabella Newell and Lucretia Stevens, children of my son Joseph Stevens, and also to the children and heirs of my daughter Mary Shoult, and also to Peter Sancry, Ann Wiswell and children of Elizabeth Tucker, which said Peter, Ann and Elizabeth were children of my daughter Rebecca, an equal share of my property, that shall or may remain after the several legacies before mentioned as well as those hereafter to be named, shall be paid out, meaning, that the child or children of each of my sons or daughters shall have that portion which would fall to their respective parents, as above described.”</p> <p>Rebecca Sancry, the daughter of the testatrix, died before her mother, having had six children, Mary, Peter, Ann and Elizabeth, who are named in the will, Abraham, who died without issue, before the will was executed, and Rebecca Tucker, the plaintiff. Mary died before the decease of the testatrix, without issue. Elizabeth and Ann died before the testatrix, but left issue who were living at her death. Peter survived the testatrix.</p> <p>The demandants entered upon the premises on August 4th, 1835. The tenants held under a deed from James Hendley, dated May 21st, 1835.</p> <p>If the Court should be of opinion, that the demandants were entitled to recover, the tenants were to be defaulted, and judgment to be rendered in favor of the demandants for their undivided portion of the premises.</p> <p>The case was argued in writing.</p>

<p>The answer of Daniel Jones, one of the supposed trustees, set forth, that he was the agent of the owners of the whaling ship Spartan, the supposed trustees, and was also a part-owner; that the defendant was the cooper of the ship, and performed a voyage in her; that bis share or lay, which was one forty-fifth, amounted to $ 1185* 11 ; and that advances were made to the defendant by the owners, amounting to $712-50. The answer then discloses an assignment under seal, by the defendant, of the whole of his lay, to Thomas Coffin.</p> <p>By this assignment, which was dated November 19th, 1831, the defendant, in consideration of the sum of $ 800, assigned and transferred to Coffin the whole of the voyage, share or lay, which the defendant should obtain as cooper and mariner of the Spartan during her intended voyage, to be paid to such assignee at the termination of the voyage, covenanted with the assignee that he should receive all which the assignor might obtain, and requested the captain, agent, and owners, to deliver his voyage to the assignee upon the arrival of the ship.</p> <p>The assignee came in, under the statute, to support the assignment, and claimed the balance in the hands of the supposed trustees. The plaintiff denied the validity of the assignment upon two grounds 1. That an assignment of the whole of a seaman’s future earnings was void as against public policy ; and, 2. That the assignment in question being intended, and having a tendency to defeat, defraud, and delay the creditors of the assignor, was void as against the plaintiffs, who were creditors before the assignment was made.</p> <p>At the trial, before Shaio C. J., it appeared, that no money was paid to the defendant by the assignee at the time when the assignment was made, but that the assignee agreed to let him have some money before he sailed, and to supply his family during his absence ; that this was done by the assignee ; that after the defendant’s return an account was rendered to him by the assignee, in which the defendant was credited with the sum of $ 800 for his lay, and charged with various advances and supplies, with which account he was satisfied ; that the assignee did not communicate this assignment to the owners, or apply to them to accept it, till after the return of the ship, and but a short time before the trustee process was served.</p> <p>Judgment was to be entered according as the Court should be of opinion, that the trustees ought to be charged or discharged.</p> <p>The case was argued in writing.</p>

Trespass quart clausum. Plea, the general issue. Trial before Shaw C. J. The place in controversy was a small parcel of land, of about twelve feet square, with a well in it, and the alleged trespass consisted in taking a pump from the well. There was evidence tending to show, that both parties had exercised acts of ownership, especially in and over the well. The plaintiff gave in evidence several deeds, by which he 'derived title from one Simeon Ellis.

<p>Where a writ of spire facias against a trustee has been lost, the plaintiff may be permitted to file a copy as a substitute.</p> <p>A id if an office copy cannot be obtained for that purpose, the next best evidence it admissible : thus, where the plaintiff’s attorney stated, in his affidavit, that he had made out a paper, partly from a scire facias against another trustee in the original suit, and partly from memory, and that he believed it was either an exact copy or substantially a copy of the lost writ, it was held, that leave of court to file such a paper as a substitute, might rightfully be granted.</p> <p>After the defendant in a scire facias has appeared and answered to the writ, it is too late for him to object that it did not designate any time and place for his appearance.</p> <p>The circumstance that, by a contract between the principal defendant and one summoned as his trustee, money due from the latter to the former is payable in another State, does not prevent it from being liable to attachment on the trustee process.</p> <p>Where a person owing money to the defendant, paid it over, without any authority, to a creditor of the defendant, and was then summoned as trustee of the defendant, and the defendant afterwards ratified the payment, it was held, that the ratification was ineffectual, and that the party summoned was chargeable as trustee.</p>

<p>Bill in equity. The principal object of the bill was to obtain a construction of the trusts contained in the will of Asa Richardson.</p> <p>The will contains the following provisions : —</p> <p>“ Secondly. I give and bequeath to my mother &c. an annuity of one hundred dollars,” &c.</p> <p>“ Thirdly. I do give &c. unto my wife Elizabeth, one moiety of my household furniture, to be selected by her with the approbation of my executor after my decease, to be at her absolute and entire disposal, and I do give to her the use of the residue of my household furniture for and during her natural life.”</p> <p>“ Fourthly. I give and devise unto Amos Cotting, of &c, his heirs and assigns, all the rest and residue of my estate, real, personal and mixed, &c. upon the trusts, &c. that is to say,” as to sixty shares in the Oriental bank, thirty shares in the Merchants’ bank, and ten shares in the Eagle bank, “ upon trust that my said trustee do and shall, from time to time, receive and take the income and dividends as they become due thereon, during the natural life of my said wife, and pay the same over to her, &c. for her sole use and benefit ; and after the decease of my said wife, my will is, that my said trustee shall hold the said bank stock and all dividends and income thereof which shall thereafterwards accrue, upon the same trusts as are herein declared in respect of the residue of my estate hereinafter mentioned. And my will is, that my said wife shall receive the gifts, &c. in lieu and instead of dower, &c. And as to all and singular the residue of my estate and property, my will is, that the same shall be held in trust by my said trustee, to pay and convey, distribute and divide the same to and among my six children, Asa, Charles, William, Elizabeth, Sarah Tufts and Horace, at the times and in the manner following, that is to say, my will is, that each of my said children shall have an equal portion of my estate and property herein conveyed in trust for their use and benefit. And my will is, that one third part of what shall be the shares of my sons Asa and Charles, who are now of age, shall be paid and conveyed to them immediately after my decease, the same to be ascertained as nearly as conveniently may be by my said trustee, and that one third part of what shall be the shares of my other sons William and Horace, now under twenty-one years of age, shall be paid and conveyed to them when they respectively arrive at the age of twenty-one years, the same one third part to be ascertained as aforesaid as nearly as conveniently may be, and that one third part of what shall be the shares of my two daughters Sarah Tufts and Elizabeth, now under twenty-one years of age, shall be paid and conveyed to them respectively, to be estimated by my said trustee as nearly as may be, when they shall respectively be married or arrive at the age of twenty-one years, whichever shall first happen. And my will is, that one other third part of what my said children Asa, Charles, William, Elizabeth, Sarah Tufts and Horace, shall be entitled to under this my will, shall be paid and conveyed to them respectively when they shall arrive at the age of twenty-eight years. And my will is, that the residue of what my said children shall be entitled to under this my will, shall be paid and conveyed to them when they shall respectively arrive at the age of thirty • five years. And my said trustee shall hold the property and estate aforesaid in trust to pay and convey the same according" to this my will. And my will further is, as to the interest, income and -dividends of my property and estate which it is herein provided shall not be paid over to my said children immediately after my decease, but at the times and in the manner herein before mentioned, that the same shall be invested and allowed to accumulate by my said trustee, and such portion of the interest of each child’s share as shall be necessary for his support, in the opinion of my said trustee, until such child shall arrive at the age of twenty-one years, or, if a daughter, shall be married, shall from time to time be paid to or for the use and benefit of my said minor children respectively, or to their respective guardians for their use ; and when and as often as the said children shall arrive at the age of twenty-one years, or, if daughters, shall be married, my said trustee shall pay over to my said children respectively their shares of the interest and income already accumulated, and shall from time to time, after my said children respectively arrive at the age of twenty-one years, pay over to every such child his share of the interest, income and dividends of the said trust property as the same shall accrue, until the principal and property and estate shall be paid and conveyed to my said children as herein before directed. And in case of the death of either of my said children without issue, my will is that all the trust property belonging to such child not paid or conveyed to him or her by my said trustee before his or her death, shall be held by my said trustee upon the same trusts herein before declared, for the benefit equally of the surviving children herein before mentioned. And my will is, that my said trustee shall keep the buildings belonging to my estate, in good repair and insured against fire, and shall expend for such purpose such sums as he shall deem reasonable, &c.; and in case any building should be destroyed by fire, my will is, that my said trustee shall dispose of the lands belonging to the same, to the best advantage, and shall invest the proceeds thereof, and all moneys nhich may be received upon any policy upon such building, in city stocks, and shall stand and be seised thereof upon the same trusts for the use and benefit of my said children, as are herein before declared in respect of the residue of my said property. And my will further is, that my said trustee may, if he shall deem it best for the interest of all concerned therein, sell and dispose of that part of my real estate commonly called Barristers’ Hall, and all the buildings thereto adjoining and the lands thereto belonging, for the best price that in his opinion can be obtained for the same, and shall invest the proceeds of such sale, &c. in city stocks, and shall hold and be seised thereof upon the same trusts as are herein declared, for the benefit of my said children, in respect of the residue of the trust property aforesaid ; and my will is, that in case any of my said children shall die leaving lawful issue, then such part of such child’s share of my said estate and property as shall not have been paid or conveyed before that time to him or her by my said trustee, shall be paid or conveyed to the lawful issue of such child, &c. And my will is, that in case my said trustee herein appointed shall decline to accept the trusts herein declared, or shall become incapable, &c., the judge of probate in and for the county of Suffolk, or the justices of the Supreme Judicial Court, shall appoint some one or iribre trustee or trustees instead of my said trustee, who shall receive and take and hold the said trust property upon the same trusts herein before declared respecting the same. And my will is, that my trustee or any trustee of these presents for the time being, shall give bonds, with good and sufficient sureties, for the faithful execution and performance of the trusts hereby declared, and such trustee shall be entititled to a reasonable compensation, &c. And if my wife should prefer it, my will is, that the one half of my household furniture herein given to her use for life, may be sold by my said trustee, and the proceeds invested as aforesaid, and the interest and income thereof shall be paid to my said wife during her life, and the same proceeds, after her death, invested as aforesaid, and any accumulation of interest that may be at that time, shall be held by my said trustee upon the same trusts as are herein before declared in respect of the residue of said trust property herein given for the benefit of my said childten.”</p> <p>The plaintiff was a son of the testator ; the defendan s were Morey, who had been appointed the trustee under the will, the testator’s widow, and his children Charles, Elizabeth, Sarah Tufts and Horace.</p> <p>The bill alleges, that the will was made on the 10th of December, 1833 ; that the testator died soon afterwards, his wife and children surviving him ; that the will was duly proved in February, 1834 ; that Cotting declined, in writing, to accept the trusts created by the will, and the judge of probate appointed Morey trustee in his room ; that Morey accepted the trust and gave bond for the faithful discharge of it, and thereupon obtained the possession of all the real and personal estate of the testator ; that the widow accepted the provision in the will in lieu of dower ; that she was appointed guardian of William, the complainant, Sarah Tufts, Elizabeth and Horace, who were then under age ; that the complainant has lately arrived at twenty-one years of age, but that Sarah Tufts, Elizabeth and Horace are still under age and under the guardianship of their mother; that Asa Richardson, the younger, died in October, 1834, intestate and without leaving issue, and that Charles was appointed administrator on his estate ; and that the trustee paid to Asa a part only of the personal estate to which he was entitled under the will, and conveyed to him no part of the real estate. These facts were admitted in the defendants’ answers.</p> <p>The case was heard upon the bill and answers. It was argued in writing by Jlylwin and Paine, for the plaintiff, and by Morey, for the defendants. The questions raised are stated in the opinion of the Court; which was delivered by</p>

Habeas corpus. On the 17th of August, 1833, upon the petition of Levin H. Harris, of Boston, representing that a colored female child, named Med, of New Orleans, was unlawfully restrained of her liberty by Thomas Aves of Boston ; a writ of habeas corpus was granted by Wilde J., in vacation, directed to the sheriffs of the several counties and their respective deputies, commanding them to have the child before him, and to summon Aves to show the cause of her detention.

<p>At the October term of the Court of Common Pleas in 1832,'this action was tried, and a verdict was rendered against the petitioner. At the May term of this Court in 1833, he presented a petition for a new trial. Notice of the petition was not served until 1835, and at May term 1836, the respondent moved, that the petition be dismissed, because the petidoner resided in the State of New York, and the petition was not indorsed, in conformity with St. 1833, c. 50, § 2, (which statute went into operation before the May term 1833,) by some responsible person who was an inhabitant of this Commonwealth, This motion was sustained by Wilde J. The petitioner thereupon excepted ; and also moved for leave to furnish an indorser, which motion was overruled.</p>

This was an indictment against the defendant for selling mixed spirituous liquor, to be drunk in his house in Williams-' town, against the provisions of St. 1832, c. 166.

This was an action of debt. The declaration contained two counts upon a special contract under seal, a third upon a quantum meruit for labor performed, and a fourth upon a quantum■ valebant for materials furnished. The defendant Blum was defaulted ; the other defendant, Thouvenin, appeared, and to the two first counts he pleaded non est factum, and to the third and fourth, nil debet.

<p>This was a bill in .equity, to redeem land under a mortgage. The bill sets forth, that the plaintiff, being seised of certain parcels of land in Sheffield, conveyed the same in mortgage, by deed dated the 2d of September, 1824, (and recorded on the 3d,) to Albert A. Root, since deceased, as security for the payment of a promissory note for the sum of $ 156*21 ; that by another deed of mortgage, dated the 24th of August, 1824, (but not recorded until the 16th of September,) the plaintiff conveyed the same parcels to his intestate, Parley Kinney, to secure the payment of a promissory note for the sum of $623*15; that on March 24th, 1830, Parley Kinney entered for condition broken, and remained in possession until his decease on March I5tb, 1833"; that the plaintiff, as his administrator, continued the possession until the day of the date of the bill; that by force thereof, Parley, in his lifetime, and the plaintiff, as his administrator, became seised of the right in equity to redeem such real estate from the mortgage made by the plaintiff to Albert A. Root; that on February 11th, 1833, Robert F. Barnard and Robert R. Root, the executors of Albert A. Root, sued out a wrii against the plaintiff, demanding possession of the premises by virtue of the mortgage to Root, and such proceedings were had, that at the September term 1834, of this Court, the executors recovered a judgment, conditioned, that unless the plaintiff, in his personal capacity and as administrator, should pay to such ex eculors the sums due on the mortgage and the costs of suit, within sixty days from September 18th, 1834, such executors should have seisin and possession of the premises; that on November 18th, 1834, the executors of Albert A. Root assigned the land mortgaged, and the deed of mortgage, to the defendant; that on the 17th of the same November, before the expiration of sixty days from the rendition of such judgment, the plaintiff deposited in the office of the clerk of this Court the amount of the judgment, with interest, for the benefit of the defendant or such executors, in full satisfaction thereof; that the executors and the defendant refused to accept the same, and on the 19th of the same month, sued out a writ of possession on the same judgment, which was executed, and possession of the premises delivered to the defendant by virtue thereof; that the plaintiff, as administrator, on April 23d, 1835, in order to redeem the premises from the defendant, tendered to him the sum of $315 in full satisfaction of the mortgage, costs, &c. and requested the defendant to deliver up the possession of the land and execute a deed of release thereof to him as administrator ; but that the defendant refused so to do, and wholly denied the right of redemption to the plaintiff.</p> <p>The answer set forth, that at the time of the execution of the mortgage deeds and for five years or more afterwards, the plaintiff was in the open and exclusive occupation of the premises ; that Albert A. Root, as the defendant believes, never had, in his lifetime, any knowledge of the mortgage to Parley Kinney ; that Parley Kinney never gave to the defendant, or to the executors of Albert A. Root, notice of any entry by him for the purpose of foreclosing ; that the plaintiff took out letters of administration on Parley Kinney’s estate on July 2d, 1833, and, having given bond to the judge of probate, with two sureties, for the faithful discharge of such trust, on the 12th day of November following presented to the appraisers of the intestate’s estate the note secured by the mortgage to the intestate, amounting at that time to the sum of $ 1040-69, as a debt due to such estate ; that this note was so appraised and included by them in the inventory of the estate; that the plaintiff caused such inventory to be returned into the probate office, and made oath before the judge of probate, that it was a true and perfect inventory of his intestate’s estate so far as the same had come to his knowledge ; that by force thereof such debt became assets in his hands, as administrator, and the mortgage deed became void and of no further effect; and that the defendant refused to receive the sum of $315 tendered to him on April 23d, 1835, because he had purchased the plaintiff’s right in equity to redeem the lands included in the two mortgages at two sheriff’s sales, made on January 17th, 1829, and August 22d, 1831, respectively, and the same has been duly conveyed to him, but the sums paid by him therefor had never been offered or repaid to him.</p> <p>It appeared that the mortgage to Root covered a parcel of land not included in the mortgage to the intestate.</p>

<p>Where the holder of two notes made by the same promisor commenced an action against him, declaring on the common counts for a sum greater than the amount of the two notes, and attached property sufficient to satisfy both, but did not intend to include in the action one of the notes, which was signed by a surety, and there were subsequent attachments of the same property by other creditors, it was held, that the plaintiff was not bound to comply with the request of the surety, to put into the action the note signed by the surety.</p> <p>Whether by so doing the plaintiff would not commit a fraud upon the other attaching creditors which would deprive him of the benefit of his attachment, quesre,</p> <p>Held also, that an offer of indemnity for so doing, by the surety, would not vary the obligations and duties of the plaintiff.</p>

The parties stated a case. The demandant claimed title to certain land in New Marlborough, in this county, by virtue of certain proceedings under a statute of Connecticut (Si. 1828, c. 3, p. 182.) Adonijah C. Powell, the original proprietor of the land, on July 16th, 1833, at Canton in Connecticut, under the provisions of that statute, for a nominal consideration, assigned all his property, including the demanded preñases, to the demandant, in trust, for the benefit of all…

Writ of entry. Plea, the general issue. Trial before Wilde J. The demandants claimed by virtue of an indenture made on the 13th of December, 1809, and recorded in 1812, between Gideon Gunn and his son, Calvin, who was the father of the demandants.

Trover to recover possession of a joint and several promissory note, for the sum of $200, dated December 2, 1833, payable to the plaintiff or his order, on demand, with-interest, and signed by Miles Bartholomew, late of Sheffield, deceased, and Frederick H. Bartholomew, his son, who lived in New York.

Assumpsit for use and occupation. The estate of the defendant’s testator having been represented to be insolvent, a commission of insolvency was issued thereon on the 6th of. March, 1833, and six months were allowed to creditors to ' present and prove their claims. The commissioners held their last session on the 6th of September, 1833, when they rejected the claim of the plaintiff.

<p>A misrecital in the condition of a bastardy bond, of the day on which the obligee made her accusation against the reputed father of the child, does not invalidate the bond.</p>

<p>Assumpsit. The action was tried before Morton J.</p> <p>The plaintiffs offered in evidence a promissory note signed by one Chester Colt, dated in March 1829, for the sum of $75, payable to the defendant or his order oil June 1st, 1829, and indorsed by the defendant.</p> <p>It was subsequently admitted, that this note was indorsed by the defendant to the plaintiffs, on the 21st of August, 1829, some time after it had become due ; but it did not appear by direct testimony, that any demand of payment had been made on the maker, or that any notice of non-payment had been given to the defendant.</p> <p>The plaintiffs proved, that at the time when this note was indorsed, the maker was insolvent and had absconded, leaving his family in Pittsfield, where they continued to reside till some time in the autumn of 1829, when he sent for them and removed them into the State of New York-; and that about the middle of November, 1829, the note was sent to the State of New York for collection, and that a judgment was there-recovered against the maker, but it had not been satisfied.</p>

Trespass for killing the plaintiff’s dog. Upon a case stated, in the Court of Common Pleas, it appeared, that the dog, when killed, was without a collar, and was out of the inclosure of the plaintiff, but under his immediate care ; and that the defendants knew, that it was the plaintiff’s dog. Cummins J. ruled, that the action could not be sustained, and that judgment should be rendered for the defendants. To this ruling, the plaintiff excepted.

This was an action to recover expenses incurred in the support of certain paupers.

<p>Trespass for taking and impounding the plaintiff's cattle.</p> <p>At the trial in the Court of Common Pleas, before Williams J., it appeared, that the defendant had been chosen agent, by the town of Tyringham, for the purpose of taking care of the burying-ground in that town and defending it from trespassers ; that the cattle in quéstion were taken by the de fendant damage-feasant, in the burying-ground, on the 10th of August, 1835, and impounded, the defendant being pound-keeper ; and that they were subsequently returned to the plaintiff and accepted by him.</p> <p>It further appeared, that the land for the burying-ground was conveyed to the town by Eben Chadwick, the former owner of the adjoining land occupied by the plaintiff, by a deed containing the following clause : “ and it is for the use of a burying-place ; if the above described land or any part of it, shall be enclosed with a fence, the same is to be done by the inhabitants aforesaid ; ” that the town erected a stone wall between such burying-ground and the plaintiff’s adjoining land and that this wall had fallen down, and at the time of the im pounding, was not a legal and sufficient fence within the pro visions of the statute on this subject.</p> <p>By St. 1834, c. 184, § 5, a “person, who shall suffer an injury in his land by” cattle, &c. “belonging to another, unless the owner thereof shall be in possession of contiguous land, from which such animals shall have escaped through the neglect of the person injured to maintain his part of the division fence, may have and maintain an action of trespass quare clausum fregit against the owner of the same for his damages ; or he may impound and restrain the creatures doing the damage, or some of them, at his election,” &c.</p> <p>The jury were instructed, that the defendant was entitled to a verdict; and they returned a verdict accordingly.</p> <p>The plaintiff excepted.</p>

<p>Where a grant is made of a water power, in terms, and the privilege itself is the principal subject, if it is left in doubt, whether it is a grant of a sufficient quantity of water to carry a particular kind of mill, making reference to such mill to indicate and measure the quantity of water power intended to be conveyed, or whether it is a grant of the use of the water to carry such particular kind of mill only, the former construction is to be more favored, because, in general, it is most beneficial to the grantee without being more onerous to the grantor, and because such construction is most favorable to the general interests of the community.</p> <p>The plaintiff, being the owner of land on a stream of water, and of a water privilege, granted by indenture a parcel of the land, with all the buildings thereon occupied by the grantee for a fulling mill and dyeing house, and the appurtenances and privileges thereunto belonging, and covenanted, that whenever there should be a sufficiency of water to supply the mills standing on the dam, he would permit the grantee to draw from the floom “ so much water as may be necessary to carry and supply the fulling mill of the grantee, which now stands or which may hereafter stand on the same spot,” but that <( when there is not a sufficiency of water for the purposes and uses aforesaid, then the grantee, his heirs and assigns, are to draw water from the said floom for the use of the said fulling mill or mills9 twelve hours successively in the twenty-four,” [or as it was expressed in the other part jf the indenture,” for the uses of his or their fulling mill, as aforesaid twelve hours,” &c.,j and that he would maintain fifteen sixteenth parts of the dam ; and the grantee covenanted, that he would maintain the other sixteenth part of the dam, and that he would never use his fulling mill or <e any other mill standing in the same place, so as in any manner or way to interfere with or obstruct the going of said saw mill of the plaintiff or any mill which may hereafter stand in the same place. except by drawing water from said floom, as aforesaid.” At the time of the execution of the indentures, the business of fulling cloth at such fulling mill had never required the use of the water for more than twenty weeks yearly. It was held, that this was not a grant of a water power to carry a fulling mill, to be applied by the grantee, at his pleasure, to any works requiring an equal amount of power, but that the use of such water power was restricted thereby to the purpose of working a fuUing mill only.</p>

<p>Trover for 1000 lbs. of wool. Ebenezer T. Shaw, one of the defendants, was defaulted; and the other, Cushing Shaw, pleaded the general issue, which was joined.</p> <p>At the trial, before Wilde J., the plaintiff produced a lease, not under seal, by which he leased to Ebenezer T. Shaw, a farm in Windsor and 300 sheep, “ to hold one year from the 1st of April, 1833, reserving 550 lbs. of wool of a quality of an average with the flock ; ” and by the subsequent terms of the lease, it was agreed, that the sheep should not be counted to the lessee till after shearing in June 1833, and that they should be counted back to the plaintiff after shearing in June 1834, the lessee to make good any deficiency, and to take the risk of the sheep till they were so counted back. There was no provision made for rent other than is above set forth.</p> <p>It appeared, that the farm was, until April 1833, in the tenancy of one Painter, who, by the terms of his lease, was to have one half of the wool of the sheep from the shearing of he summer of 1833 ; that the plaintiff and Painter had the wool of that shearing accordingly ; that the farm was leased ro one 'Tro igh, from April 1, 1834, but that he was not to have the wool of the sheep till the shearing of 1835, the plaintiff and Ebenezer T. Shaw both saying to him, at the time of the letting, that Ebenezer was to have the wool of the shearing of 1834, excepting 550 lbs. thereof, which he was to render to the plaintiff for the rent of the previous year.</p> <p>Ebenezer T. Shaw sheared the sheep in June 1834; and there was evidence tending to show a sale of the wool by him to Cushing Shaw. While Cushing had the wool in his possession, and was on the way with it, in company with Ebenezer, to his own residence, the agent of the plaintiff demanded of them 550 lbs. of the wool, claiming it by virtue of the lease from the plaintiff to Ebenezer; but Cushing refused to give up ♦he wool.</p> <p>The defendants contended, that, upon these facts, the plaintiff either had no property in the wool, or was a tenant in common with Ebenezer, and that in either case he could not prevail in this suit; but the judge, for the purposes of the trial, ruled that the plaintiff could maintain the action for 550 lbs. of the wool.</p> <p>It appearing, that there was more than 550 lbs. of the wool m the possession of Cushing, the plaintiff insisted, that he had such a property in, or lien upon, the wool, that damages should be assessed in his favor for the whole amount of the wool, including the excess over 550 lbs.; but the judge ruled otherwise.</p> <p>The jury assessed damages for the plaintiff at the sum of $304'39.</p> <p>The Cqurt were to render judgment on the verdict, or grant a new trial, or direct a nonsuit, according to the law.</p>

<p>A testator, without children, bequeathed his personal property, with certain specific exceptions, to his wife, and then devised a portion of his real estate to his executors in trust to sell the same and pay his debts and certain legacies out of the proceeds. After the execution of the will, the testator sold that portion of iiis real estate and purchased other real estate. The Probate Court having refused to grant the executors a license to sell the after-acquired real estate of the testator for the payment of his debts, it was held, that the wife, who had petitioned that such license might be granted, was entitled to appeal ; and that the after-acquired real estate should be first applied to the payment of the debts, it being clearly the intent of the testator, that the personal estate bequeathed to his wife should be exempted from liability for such debts.</p>

<p>4 testator, after devising one third of his real estate to his wife for her life, and reciting, that he had hitherto done something for his children when they were setting out in the world, according to his abilities, gave to his children, including F., the tenant, one dollar each, and then proceeded as follows : “ And I constitute and appoint my son F. sole executor of this my last will and testament, and I give unto my son F. my wearing apparel and the whole of the farming utensils,” &c.; and it is my will, that my said executor collect in all the money or debts I may have due to me at my decease, and also pay out and settle all the debts I may owe at my decease, and when my estate is all settled by my said executor, it is my will, that the remainder all go to my said son F.” At the time when the will was made, the testator also executed a deed of a parcel of his real estate to the tenant, and gave it to a third person, to be delivered after the death of the testator. The testator wan possessed of no other personal property than that described in the will. The tenant lived with him for more than twenty years preceding his death ; and no one of his other children lived with him during that period. It was held, that the remainder of the real estate of the testator passed to F. in fee, by the residuary clause of the will</p>

<p>In this case it was resolved, that before the action of account was abolished by the Revised Stat. c. 118, § 43, such an action was maintainable by a goldsmith and retailer of wares appertaining to that trade, against his former partner in the same business, who, after the dissolution of the partnership, became the receiver of moneys coming to their common profit, to render an account when requested.</p>

<p>Land was conveyed by L. to S., and at the same time an indenture was executed by the parties which set forth, that S. “ demised, granted and to farm let99 the premises to L., to have and to hold during the life of L., for the purpose, that S. should maintain L. for life ; and that (i the lease aforesaid is given by S. for the purpose of securing to L. the maintenance aforesaid.” S. died in the lifetime of L. It was held, that the indenture was a mortgage ; and that after the death of L. the widow of S. was entitled to dower in the land, as against a person claiming under S.</p>

The writ in this case was dated the 22d of October, 1834. Asahel Booth, the supposed trustee, stated in his answers, that, at the time of the service of the writ, Thompson was indebted to him on a balance of accounts, in the sum of $120 ; that before that time, viz. on the 18th of September, 1834, a written contract was made between them as follows :— “ This certifies that I, Asahel Booth, agree to purchase of, and d^ hereby purchase of, T. W. Thompson, the said Thompson…

Petition for a certiorari. The petitioners were Thaddeus Taylor and Lydia his wife, and Caroline Flower, all of Suffield in Connecticut, and Eli Warner and Frances his wife, of Springfield.

<p>This was an action upon St. 1786, c. 81, § 7, to recover double damages for an injury occasioned by the defects of a bridge in Cummington, alleged to be upon a county road leading from the baptist meetinghouse in that towi to Windsor.</p> <p>At the trial, before Wilde J., the plaintiff offered in evidence the record of a county road between these termini, surveyed and established in 1797, and he proved that the road and the bridge upon it were soon after constructed where they now are, and that the defendants have ever since maintained them there. The defendants denied that the bridge was upon the county road as located, and by a survey according to the record, proved that the bridge was some rods aside from it The jury were instructed, that the defendants could not set up this inislocation of the road in defence of the action, and that t.he evidence was sufficient to show that the road as travelled had been dedicated to the public. If this instruction was correct, judgment was to be entered on the verdict.</p>

<p>In an action of trespass by a mortgagee of personal property against an officer who attached the property at the suit of a creditor of the mortgager, it was held, that the certificate of the town clerk on the mortgage that it had been duly recorded in his office, could not be disproved, as against the mortgagee, by the production of a copy of the supposed record differing materially from the mortgage itself.</p>

<p>Assumpsit to recover a final balance due to the plaintiff, on a settlement of the affairs of a partnership which had existed between him and the defendant. The suit was defended by subsequently attaching creditors.</p> <p>At the trial, before Wilde J., the plaintiff produced an agreement signed by the defendant, as follows : “ It is hereby agreed, that on the 14tb day of October, 1833, there is due to Lester Dickinson the sum of $324-49, as the final balance of accounts between us as partners. C. S. Granger.” The writ was dated October 15th, 1833. The plaintiff here rested his case.</p> <p>' The attaching creditors then introduced their evidence, and their counsel argued to the jury, that the foregoing agreement was fraudulent, inasmuch as the proof, that there were outstanding debts against the firm, and the other evidence in the case, showed that the agreement was not entered into until after the commencement of the action. The plaintiff contended, that the jury had a right to infer from the evidence, that before the commencement of the action the partners settled the partnership concerns, and that the plaintiff bad agreed to pay the outstanding debts, and that thus the final balance was arrived at, and that from all the evidence it did not appear that the agreement was fraudulent.</p> <p>The judge instructed the jury, in point of law, that if they should find from the evidence, that before the action was brought, it had been arranged that the sum above mentioned was the final balance by the plaintiff’s agreeing to assume the * outstanding debts, and if they were convinced that such was' the agreement on the part of the plaintiff, they might return a verdict for the plaintiff.</p> <p>The jury found a verdict for the plaintiff.</p>

This was an action of replevin for a bell and bell frame The defendants pleaded property in six of the defendants, and traversed the property of the plaintiffs. Issue was joined upon the traverse. At the trial, before Wilde J., the plaintiffs proved, that .the bell and bell frame, before they were taken by the defendants, had been bung up in the plaintiffs’ meetinghouse for the space of eight years, and had been used by them, during that time, for all parish purposes.

<p>Upon a case stated, it appeared, that this action was assumpsit against the defendant, as the guarantee of three promissory notes, payable to the plaintiffs, two of them made bv David N. Day, which were due before the 7th of August, 1833, and the third, which became due on the 7th of October, 1833, made by Day & Co. On each of these notes was an indorsement to the following effect : “ Westfield, August 7th, 1833. Received of Marsh, Gilbert & Co. [the plaintiffs] fifty cents, in consideration whereof, I hereby warrant this note good and collectable two years. Martin Day, jr.”</p> <p>It was admitted, that previously to October 31st, 1834, which was the date of the writ in this action, the plaintiffs had commenced actions against the makers of the notes, but no property was found in their possession which could be attached.</p> <p>At the trial, the defendant contended, that the action w'as prematurely brought ; but the judge overruled the objection, and ordered a default, subject to the opinion of the Court.</p>

<p>Petition for partition. The petitioner represented, tho. be was seised in fee of one undivided half of certain land, toj gether with a fulling mill, carding machine and clothier’s shop, and the privileges and appurtenances thereof.</p> <p>The respondent pleaded, that the petitioner was not so seised ; and issue was joined thereon.</p> <p>By an agreed statement of facts it appeared, that Madison D. Erskine and John Erskine junior were originally seised of the whole of the premises in question, as tenants in common, in equal parts ; that on March 1st, 1831, Madison mortgaged one undivided half thereof, to the petitioner, to secure the payment of three notes made by the mortgager and John Erskine junior, and payable at a time which had not yet arrived ; and that the petitioner had never been in possession, unless the possession of the mortgager or his cotenant was equivalent to a possession by the petitioner.</p> <p>It further appeared, that on the 19th of October, 1832, the Erskines assigned their properly to Alanson White., Asahel H. Bennett and Asaph Butterfield, upon the trust, that the assignees should sell the goods and chattels within one year from the date of the assignment, and collect the debts, and out of the proceeds thereof, after paying all expenses and charges incurred in or about the premises, and also several preferred debts, including “the sum of $500 to Asaph Butterfield and David Rich, who stand jointly and severally enagged for us, the said John Erskine junior and Madison D. Erskine, in one note for that sum, to the Brattleborough bank, due and owing, with interest to the time of such payment,” should pay the claims of the several persons named in a schedule annexed, together with all others to whom the assignors were justly indebted, pro rati, provided they became parties to the assignment within thirty-five days from the date'thereof. This part of the instrument of assignment was executed by the assignors. Then followed a schedule of the property, which, after describing the premises in question, continued as follows : “ one undivided half of said land, buildings, fulling mill, one carding machine, clothier’s shop, water and other privileges mentioned above, are subject to a mortgage [to the petitioner] of $ 1217-02, with interest, annually, from the first day of March, 1831 a schedule of the unpreferred creditors, “ as far as recollected,” they being few in number, and the name of the petitioner not being mentioned therein ; and an acceptance of the trusts and a covenant for the faithful performance of them, executed by the assignees alone. The assignment then proceeded, as follows : “ And the creditors of the said John Erskine junior and Madison D. Erskine, in consideration of the covenants contained in the foregoing deed of assignment, do severally accept said assignment, and approve of the terms and conditions thereof, and in consideration thereof, they do severally release and discharge the said John Erskine junior and Madison D. Erskine of and from all and singular their several claims and demands against them, of every name and nature,” &c. This release was executed by the creditors or some of them, including the petitioner.</p> <p>The respondent acquired the title of the assignees, by purchase.</p> <p>It appeared that no payment had been made on the notes secured by the mortgage. But the respondent contended, that by the release, these notes, and consequently the mortgage, were discharged. The petitioner contended, that the effect of the release was confined to the debts secured by the assignment, and that it was evident from the whole instrument, that these notes were not among the debts so secured and discharged.</p> <p>The Court were to give judgment, upon these facts, according to the law.</p>

<p>The St. 43 Ehz. c. 4, is in force here, at least so far as to determine what are gifts to charitable uses.</p> <p>In the case of gifts in trust to charilahle uses, no neglect, misapplication of funds or other breach of trust by the trustees, will give a right to the heirs of the donor to call upon a court of equity to declare a resulting trust for themselves. They have, therefore, no beneficial interest accruing from the non-execution of such a trust.</p> <p>A testator gave certain properly to trustees, in trust to be paid to them or their successors, whom they should name, and to he disposed of in the manner following : “ the said sum shall be kept out at interest, &c. and the interest or annual income shall be applied to the pay or maintenance of a faithful, competent instructor of said school in Ashfield aforesaid ; and I hereby request my said trustees to give to said institution an appropriate name, relying on the integrity and faithfulness of said trustees and their successors, to make from time to time such rules and regulations as they may believe the best adapted to insure success, always having a regard to virtuous and pious youth of genius in indigent circumstances.” The trustees were subsequently incorporated, the act of incorporation providing, “ that all grants and donations, which had been or should be thereafter made for the pur pose aforesaid, should be confirmed to the said trustees and their successors in that trust, forever, for the uses which in such instruments were or should be expressed; provided such uses should not be repugnant to the design of this act.” It was held, that the trustees were authorized to apply for and to accept such act of incorporation, the provisions of the act being calculated to carry into effect and not to defeat the objects of the testator j and that an application to this Court to compel the trustees to execute such trust, could not be sustained by the heirs of the testator, either as cestui que trusts or as visitors.</p> <p>S seems, that trustees having themselves a visitatorial power, may, in case of any violation of law, be proceeded against either at law or in equity, as by mandamus, prohibition, information, or an action on the case. And where Ihete are trustees in virtue of an express trust under a will, and where, therefore, they are within the equity jurisdiction of this Court, they are within its supei intending power, not as itself possessing a visitatorial power, or a right to control the charity, but as possessing a general jurisdiction of all abuses of trusts.</p>

<p>This was a writ of entry against an incorporated company, to recover a messuage in Westfield, containing five acres of land. The writ was dated the ISth of January, 1834.</p> <p>The tenants plead, as to one parcel (describing it) of the land demanded, that before they entered thereon, viz. on the 1st of April, 1828, by writing obligatory and in virtue of a contract in writing, which w ting and contract are now in the possession of the demandant, or by him destroyed, they obtained from him the grant of a right to excavate, construct, and use a navigable canal, with necessary and proper embankments, in continuation of the canal adjoining the demanded premises, over and through the parcel described, and that under the gram they entered upon this parcel and there excavated and constructed the canal, and that they had and have the right to occupy, use, and improve the canal and embankments, over and along this parcel; and saving these rights and the right to keep the canal in repair, they do not and never did claim, and they disclaim, to have any other right or any thing else in such parcel</p> <p>The demandant, in his replication, protesting that the tenants had not the right to excavate, &c., and that they have not the right to occupy, use, and improve, &c., says, that on the day of the purchase of the writ, they were tenants as of freehold of the demanded premises, and tenders an issue ; which is joined.</p> <p>At the trial, before Putnam J., the tenants proved a contract, dated the 30th of September, 1826, between themselves and Thomas Sheldon and Davis Hurd, by which Sheldon and Hurd agree to do all the work and find all the materials for excavating and constructing the canal and feeders, from the south line of the State to the Connecticut river at Northampton, and pay all damages to which individuals should be en titled, and to finish the canal in 1829. The line of the canal had been previously located, pursuant to the tenants’ act of incorporation, but there was a stipulation in the contract, that with the consent of two thirds of a certain committee of the corporation, the line might be altered.</p> <p>They also proved a contract in writing, but not under seal, between the demandant, of the first part, and Sheldon, Hurd, S. Collins, and A. Painter, of the second part, dated the 6th of November, 1827, in w'hich it is agreed, that Sheldon, Hurd, Collins, and Painter shall have liberty to construct the canal obliquely through the homestead of Cobb ; and in consideration thereof Cobb shall have the option to retain his title to the homestead, claiming no damages for any necessary injury thereto, or at any time previous to the expiration of two years from the completion of the canal as far north as Northampton, to convey the same to Sheldon, H‘urd, Collins and Painter, for the sum of $ 3500, to be paid in three annual instalments ; provided that he shall give ninety days’ notice, and shall make the conveyance on the 1 st of May, in the year in which he shall make his election to convey ; and if he shall not wdthin the two years actually execute such conveyance,' Sheldon, &c., shall be under no obligation ever after to pay for the same or respond in damages ; and if Cobb shall neglect to execute, on his part, the provisions of the contract, he shall pay to Sheldon, &c., f 1000, as compensation for damages in the case. The object of this contract was to accommodate Sheldon, Hurd, Collins and Painter, in a speculation in real estate in which they were engaged.</p> <p>The canal had been located according to law a few rods west of the present route, and there was no evidence that that location had ever been altered, unless it so appears from the facts here stated.</p> <p>Cobb never gave the ninety days’ notice, mentioned in the contract, and Collins advised him not to convey the land, because from the failure of Collins, Sheldon and Hurd, he would probably lose all the consideration except the first payment. On the 6th of November, 1833, the contract was rescinded and destroyed by the parties, with the intention of placing them all in the same situation as if it never had been made. As the consideration of giving up the contract, Sheldon and Collins gave Cobb a bond to convey to him a small piece of land or pay him $ 100, at their election. At the time when the contract was rescinded the homestead was not worth more than $2,500. Collins testified that he considered the speculation an unprofitable one, and that the bond of Sheldon and himself was for a release to them from the obligation to take the homestead at a loss, and was not in compensation for the damage to the homestead.</p> <p>The demandant contended, that the evidence did not support the plea, and that the tenants could not avail themselves of the contract between Cobb and Sheldon and others, unless they had by some corporate act located the canal- in the place described in the plea, and had also assented to, assumed and ratified that contract.</p> <p>The tenants then proved by paroi evidence, the demandant objecting to its admissibility, that Hurd was their chief engineer, that he was in their employment at the period in question, that he authorized the construction of the canal, superintended the alterations in the route of the canal, directed where the surveys should be made, and directed a survey over the demandant’s land, and the construction of a canal over the land described- in the plea. The tenants also proved, that Sheldon and Hurd ceased to work on the canal in 1829, or to take any further care or management of the business, in consequence of the. corporation having ceased to advance them funds. The canil was constructed in 1828, across the demandant’s land. Since Sheldrn and Hurd abandoned the canal, the tenants have assumed the management of it from the State of Connecticut to Northampton, and it has been navigable from Westfield south to New Haven, since 1829, but has not been navigated over the demandant’s land, except that in a few instances boats have passed over this ground. The same acts of ownership or superintendence were exercised over the part of the canal which passed over the demandant’s land, as were exercised over other parts of the canal.</p> <p>If the Court should be of opinion, that the tenants had supported their plea, the demandant was to be nonsuit; otherwise the tenants were to be defaulted.</p>

<p>Assumpsit on a promissory note for the sum of $ 200, made by Charles Lyman, as principal, and Zadock M. Lyman, the other defendant, as surety, dated January 31st, 1834, and payable to Averill & Prior, the plaintiffs, in four months.</p> <p>The parties stated a case.</p> <p>On December 15th, 1832, William and Charles Lyman, who were brothers and copartners in trade at South Hadley, being indebted to the plaintiffs in the sum of $456, gave a note therefor, payable to the plaintiffs or their order, at the Hartford Bank. This note was sent to the plaintiffs, who were merchants in Hartford, by the promisers, enclosed in a letter, in which they stated, that they should probably want to renew the note for one half the amount.</p> <p>On April 17th, 1733, William Lyman enclosed the sum of $ 162, in cash, and a note for the sum of $300, dated April 18th, 1833, signed, “For late firm of W. & C. Lyman, W. Lyman,” and payable at the Hartford Bank in four months, in a letter to the plaintiffs, in which he stated that W. & C. Lyman had dissolved partnership, and he supposed the note, as written, was correct, as all the concerns of the firm were to be adjusted by him. The note was received at the Hartford bank, and entered upon the books as the note of W. & C. Lyman ; and a memorandum was written on it, indicating that it was a renewal of the note for the sum of $456.</p> <p>On August 19th, 1833, W. Lyman sent the sum of $104 in cash, and a note for $ 200, signed by himself alone, and payable at the Hartford bank, enclosed in a letter to the plaintiffs, in which he requested them to receive the same as a payment of the note for $ 300. To this the plaintiffs replied by a letter addressed to W. Lyman, dated August 21st, 1833, in which they stated, that they had credited him with the cash enclosed and the note for two hundred dollars, and charged him with $300, “ cash paid his note at bank,” that they had found that the note for $ 300 taken up by them on that day, was a renewal for one given in December, 1832, by W. & C. Lyman, that it was the undeviating rule of the bank, and likewise of themselves, to renew a note but once, that in this ins'ance they had kept the note and paid the balance out of their own funds, which they hoped would soon be paid, and the new note be applied on W. Lyman’s more recent account, and that they enclosed the note for $ 300.</p> <p>On November 6th, 1833, the plaintiffs, by a letter of that date to W. Lyman, requested payment of the sum of $200 paid by them on the note for $ 300, at the bank, and also stated an account against W. & C. Lyman for goods purchased subsequently to the date of the note for $ 456, and an account with W. Lyman. In the latter account W. Lyman was charged with $ 196-20 cash paid on the note for $300, and was credited with the note for $ 200. The letter further stated, that they had applied the note for $ 200 on account of goods bought in the spring.</p> <p>On January 31st, 1834, one of the plaintiffs called on Charles Lyman for payment of the amount due them, and the note now in suit was then given. At the same time an account was rendered to the defendants, in which W. & C. Lyman were charged with “ cash paid their note at bank, $ 300,” and credited with the sum sent them by W. Lyman in cash, on August 19th, 1833, and with the note now in suit.</p> <p>In the autumn of 1833, Charles Lyman succeeded William in business. On February 7th, 1834, Charles, being indebted to the plaintiffs, on his individual account, in the sum of $ 138-52, made an assignment of his property to trustees, upon the trust, after the payment of certain debts, to apply the residue of the trust money to the payment of creditors named in the assignment, including the plaintiffs, “a schedule and estimate of the amount of whose several debts is hereunto annexed,” in proportion to the amount of their respective demands, provided they became parties to the assignment within four months from the date thereof. The assignment contained a clause whereby the creditors who became parties thereto, released to the assignor, “ all sums of money due and owing, or to become due to them respectively from the said Charles Lyman, and all claims and demands they now have or may have hereafter for or by reason of having signed, indorsed or accepted any notes, bills or drafts for or at the request of said Charles Lymán, and also all their respective claims and demands whatsoever against said Charles Lyman.” In the schedule referred to in the assignment, the sum of $ 138'52 is placed against the names of the plaintiffs. The plaintiffs executed the assignment.</p> <p>If. in the opinion of the Court, the plaintiffs were entitled to recover, the defendants were to be defaulted ; if otherwise, the plaintiffs were to become nonsuit.</p>

<p>in traver against two defendants, jointly, for a horse hired of the plaintiff to go to a certain place, it is competent for the defendants to prove, that by a contract between them, one was to carry the other to" such place as a passenger, there being no direct evidence of any express hiring by the latter.</p> <p>A deposition taken under a commission directed, in the common form, to any justice of the peace, &c. is admissible in evidence, although it does not appear, that the person before whom the deposition was taken was a justice of the peace, otherwise than by his signature upon the deposition.</p> <p>It seems, that where a commission to take depositions, is directed to a person by name, it is immaterial whether he has any official character or not, as he would have sufficient authority to take the depositions, from the commission itself.</p>

This was an action on the case under the Si. 1804, c. 12b, § 6, providing that a turnpike corporation “ shall be liable to pay all damages which may happen to any person from whom toll is demandable, for any damages which shall arise from defect of bridges, or want of repair of said turnpike road.” At the trial, before Wilde J., it appeared, that on the 25th of December, 1834, while the horses and wagon of the plaintiff were passing over the road of the defendants, one of…

Caleb Colvin, one of the supposed trustees, states in an original and a supplementary answer, among other things, that on the 25th of July, 1829, Paine & Ray, the principal de fendants, by an indenture, (which is made a part of the answers,) conveyed to the respondent and to Caleb Cook, two factories, a store, certain machinery, tools, and other personal property, in trust to pay the creditors of Paine & Ray, who should become parties to the assignment; that at the time of…

<p>The answer of Windsor Hatch, the alleged trustee, set forth, that the principal defendant had kept a boarding-house for the workmen employed in the respondent’s manufactory, and that he became debtor for their board ; that at the time when the defendant began to keep the boarding-house, it was agreed verbally between the respondent, the defendant, and several persons named, who subsequently furnished her with provisions and other supplies, that the supplies should be delivered and charged to her, and that, at the end of each quarter, the respondent would see that the persons who furnished them were paid ; that the supplies were accordingly charged to the defendant, and the respondent paid all such charges up to January 1st, 1835 ; that at the time of the service of the writ, the amount due on account of supplies furnished upon the strength of the respondent’s guaranty, exceeded the amount due to the defendant for board ; that the balance had never been less since that time, as she very soon afterwards left the boarding-house, and had not paid any part of the bills ; that if the respondent was legally liable for those charges which remained unpaid, in consequence of such verbal arrangement, then he had no goods, effects or credits of the defendant in his hands and possession at the time of the service of the writ; that otherwise there was a balance due to her at that time ; that the respondent had always been in the habit of making such arrangements respecting the boarding of his workmen ; and that he considered himself bound to pay such charges, as those who furnished supplies for the boarding-house, would not have done it, if it had not been for his engagement to see them paid.</p>

<p>Writ of entry. Trial before Putnam J.</p> <p>The demandant, on the 21st of November, 1831, attached the demanded premises as the property of Paul Dudley, and afterwards duly extended his execution thereon.</p> <p>The tenant claimed under a deed from Paul Dudley.</p> <p>On the 22d of October, 1831, Benjamin Dudley, by a codicil to bis last will, devised “ to Paul Dudley and his wife Dorothy, an undivided two thirds part of the use and improvement ” of the demanded premises ; “to have and to hold, to use and improve the same, to each of them, during their natural lives, and to the longest liver of them. It is to be understood the said use and improvement of the said two thirds is to be and remain for the sole support of the said Paul and Dorothy and for no other.”</p> <p>On the 23d of October, 1831, Paul Dudley, who was the father of the tenant, executed a deed, setting forth, that in consideration of the sum of $ 1000 paid him by the tenant, he thereby granted and quitclaimed all his right and title in the demanded premises, to the tenant, his heirs and assigns ; and that the deed was “on condition, that whereas the-said John Dudley has covenanted and agreed to furnish the said Paul Dudley and his wife, Dorothy, bed, board, clothing and physic, and in all respects support and provide for the said Paul and Dorothy a good and comfortable living, both in sickness and health, for and during each of their, the said Paul and Dorothy’s, natural lives, and the longest liver of them, and whereas the said Paul and Dorothy are desirous of remaining in possession of said described premises, for the purpose of securing said support, now therefore, if the said John Dudley shall fail in any respect faithfully to furnish good and sufficient support, as aforesaid, in sickness and in health, or shall, at any time during the natural lives of the said Paul and Dorothy, disturb them in the peaceable possession of the aforesaid described premises, then this deed is to be void, otherwise to remain in full force and virtue in the law.” This deed was delivered on the 24th of October, 1831, in the evening after the death of Benjamin Dudley, and was recorded on the next day. The whole consideration was an agreement, testified to have been made at the time, by which it. was stipulated, that the tenant should give up to the grantor, securities held against him amounting to the sum of $ 1000. These securities were not specified, and were not given up until the 22d of January, 1832, when several negotiable notes, amounting to the sum of $1176, were delivered up to the' grantor by the tenant, and a new note taken for the excess over the sum of $ 1000.</p> <p>The demandant contended, that under the circumstances ol the case, the intervention of his attachment between the execution of the deed and the actual payment of the consideration, defeated the conveyance to the tenant.</p> <p>The demandant further contended, that the deed was void , that as a life estate was granted and a life estate taken back, the deed was destructive of itself; that even if it might have any validity between the parties thereto, it was, upon its face, void against a bona fide creditor of the grantor, as fraudulent or conclusive evidence of fraud in law ; and that it was made with intent to defiaud creditors. But the jury were directed to consider the contents of the deed, and particularly the condition annexed to it, in connexion with the other evidence of fraud.</p> <p>-The jury returned a verdict for the tenant.</p> <p>If the Court should determine, that the deed was void or inoperative, the verdict was to be set aside, and the tenant defaulted ; unless they should be of opinion, that no estate passed to Paul Dudley by the codicil, which could be extended upon by his creditors ; in which case, the verdict was not to be disturbed.</p>

<p>An assignment by an insolvent debtor, of a part of his property, in trust for the benefit of his creditors, provided for the payment, first, of certain sureties., also creditors, including the plaintiff, who was one of the assignees, in full, if the property should be sufficient, otherwise pro raid, and then of such other creditors as should become parties to the assignment, in full or pro raid ; and the assignees covenanted to dispose of the property and pay over the proceeds in manner aforesaid, within one year, and the “ creditors ” becoming parties to the assignment, agreed, “ upon being paid in manner aforesaid, to cancel and discharge their respective demands.” It was held, that the execution of the indenture of assignment by the plaintiff, and his acceptance of the trust, operated as a fidl and immediate discharge and satisfaction of his claims both as surety and as creditor ; so that a subsequent conveyance to him by the debtor, of other property, as further security for those creditors was without consideration and invalid against a creditor not a party to the assignment.</p>

<p>Assumpsit for the recovery of $ 97-27, paid by the plaintiffs to the trustees of the State Lunatic Hospital for the support of Russell Cheney, during his confinement in the hospital.</p> <p>Upon a case stated it appeared, that Cheney tesided in Worcester on the 25th of January, 1834, when, upon application to the judge of probate, he was committed to the hospital, under St. 1833, c. 95, as a lunatic dangerous to be at large, and was there kept and restrained until the 1st of September, 1834, when he was discharged.</p> <p>Cheney, while confined in the hospital, was a pauper standing in need of immediate relief. His legal settlement was in Milford. On the 1st of June, 1834, a part of the expenses of supporting him in the hospital, viz. $ 52-68, and on the 4th of December, 1834, the residue, viz. $ 44-59, were charged to the account of the town of Worcester, by the treasurer of the hospital ; who thereafter, on or before the 6th of the same December, demanded in writing, of the selectmen of the town, the payment of these expenses ; and on the 13th the selectmen paid the amount. On the 6th of December the selectmen of Worcester wrote a notice to the overseers of the poor of Milford, which was received on the 10th, stating that the treasurer of the State Lunatic Hospital had presented to such selectmen an account, in which the sum of $97-27 was charged for the support of Russell Cheney ; and requesting such overseers, as his legal settlement was in Milford, to refund to Worcester that amount paid for the benefit of Milford. On the 30th of January, 1835, the overseers of Milford returned an answer, denying that the settlement of Cheney was in Milford, but adding, that if it should prove to be, they did not consider that town liable to pay the account, and that they declined paying the same.</p> <p>If upon these facts the Court should be of opinion that the action was sustained, the defendants were to be defaulted, and the damages to be assessed by the Court; otherwise the plaintiffs were to become nonsuit.</p> <p>The cause was argued in writing.</p>

<p>The first of these actions was trespass on the case, for flowing back water upon Dryden’s mills by a dam, and for damage alleged to have been done to the lands of Dryden below the rolling dam, by the water flowing over the same. The writ was dated November 23d, 1835.</p> <p>At the trial, before Putnam J., it appeared, that on March 15th, 1825, Dryden, having become the owner of the whole of the estate now occupied by him and Jepherson, conveyed to Daniel Morse two acres and three quarters of an acre of the land, more or less, and the house and other buildings standing thereon, with a water privilege, the same being described in the deed by metes and bounds, “ together with the privilege of a dam below said Dryden’s factory and flowing the water as high as will answer and not injure or obstruct the water wheels of said Dryden’s, above.” There were other stipulations in the deed respecting the use of the water, limiting the grantee’s right to the ordinary flow of the stream, exclusive of showers, freshets and thaws, and providing that, if the grantor should withhold or refuse to let the water down, the grantee should “ have free access to the gate at the head of the canal, and draw and convey the water in the canal to his works below.” The grantor covenanted, that the premises were free from incumbrance, ‘ ‘ reserving the privilege as usual for Peter Hubbard to convey the water in a ditch into his interval below, forever.”</p> <p>In regard to this reservation, it appeared, that, in the deed under which Dryden derived his title, there was a reservation to Hubbard of “ liberty to raise the water, where there is a mud sill now laid for that use, to water his mowing land.”</p> <p>Jepherson was now the owner of the water privilege conveyed to Morse.</p> <p>Before the erection of Morse’s dam, which took place in 1825, the water did not flow back upon Dryden’s wheels, when there was no intervening obstruction, but afterwards it did flow back upon them six or seven inches. When Morse’s dam was built, Dryden and Morse were present, and mutually agreed upon its height and length, and where it should be placed, and where the rolling part of the dam should be, and upon the length of that part. A small portion of the rolling part of the dam extended southerly upon the land of Dryden, beyond the line of the land conveyed by him to Morse, but the dam was built to the height and extent, and on the site marked out under the direction of Dryden and Morse ; and Dryden recommended, that the diameter of the wheel at Morse’s mill should not be less than thirteen feet.</p> <p>When Hubbard put up his dam, which was placed between the dams of Dryden and Jepherson, occasionally to drive the water into the ditch referred to in the deed from Dryden to Morse, for the purpose of irrigation, the water flowed back upon Dryden’s saw-mill wheels six or seven inches. Morse’s dam was to be of a height sufficient to raise the water in his pond as high as it was raised by Hubbard in his trench, for irrigation ; and Dryden w'as satisfied with Morse’s dam aftei "t was finished.</p> <p>Morse offered to dig away the land below the rolling dam, in order to make a water-course through the southerly part of Dryden’s land below the dam, but Dryden did not desire him to do so, saying that the water would cut its- own channel through his land.</p> <p>After the dam was built, Morse complained that he had noi so good a privilege as he expected, and that Dryden had im oosed upon him ; and the matter having been referred to one Lees, Dryden then said, that if the dam should flow his wheels, he was willing to have them raised. Dryden then contemplated building a factory on the upper privilege. Afterwards, Dryden’s tub-wheel was, by his request, raised, at the expense of Morse, from twelve to eighteen inches, leaving the bottom of it three inches above the level of Morse’s pond.</p> <p>The second action was trespass quare clausum fregit, bi ought by Jepherson against Dryden.</p> <p>It appeared, that on October 23d, 1835, Dryden gave Jepherson notice to lower his dam ; and that in consequence of Jepherson’s not complying with the terms of the notice, Dryden cut a new water-course from Jepherson’s pond into Dryden’s own land, whereby the pond was lowered sixteen inches ; and the privilege became inadequate for a wheel of thirteen feet in diameter. The second action was brought to recover for this injury.</p> <p>The judge directed that a verdict should be rendered for Jepherson, in both actions, subject to the opinion of the whole Court.</p>

This was an action of debt on a judgment recovered by the plaintiff in the Court of Common Pleas for the county of Bristol, on the second Monday of March, 1822, for the sum of $65 13. In the original writ upon which such judgment was recovered, the defendant was styled of Bellingham, in the county of Norfolk.

<p>Replevin. On a case stated it appeared, that the action was brought to recover certain articles of household furniture mortgaged to the plaintiff by Reuben Waters junior, on August 5th, 1834, to secure the payment of a note described in the condition of the mortgage, as “ a certain note of hand bearing date on or about the first day of February last past, on which the said Reuben Waters junior is principal and the said Erastus Davis, [the plaintiff] surety, jointly and severally promising” Samuel Tayior, “ to pay him or order the sum of five hundred dollars in the time therein specified ; ” that this mortgage was under seal, and was duly recorded ; and that subsequently the property mortgaged was attached by the defendant, a deputy sheriff, as the property of Waters.</p> <p>The plaintiff produced in evidence, as the note referred t in the condition of the mortgage, a note for the sum of $ 500, dated January 25th, 1834, signed by the plaintiff alone, payable to Waters or his order on demand with interest, and indorsed by him. Waters testified that this note was signed by the plaintiff, to enable the witness to obtain cash for it of Taylor ; that the witness received the money of Taylor, accordingly, and afterwards mortgaged the property in question to the plaintiff to secure him against his liability on such note ; that the mortgage was made while the note was in Taylor’s hands, and the note was described from recollection ; that there never was any other note given by the plaintiff, either as principal or surety, for the witness and negotiated to Taylor; and that such note had been paid out of the proper estate of the plaintiff.</p> <p>If the Court should be of opinion, that this evidence was admissible, and that it sustained the action for the plaintiff, the defendant was to be defaulted ; otherwise the plaintiff was to become nonsuit, and the defendant to have his writ of return, with nominal damages.</p>

The answer of the supposed trustee, Moses Adams, set forth, that the defendant, being indebted to him in the sum of about $ 135, on October 19th, 1835, mortgaged to him certain articles of personal property of the alleged value of $ 355, in order to secure the payment of a note for the sum of $ 300 on demand ; that the property was never delivered to him and was never in his possession ; and that the mortgage was recorded.

<p>1 deed set forth, that the grantor, in consideration of the sum of $ 3000 paid by tne grantee, gave, granted, sold and conveyed to him certain land, “ saving and reserving to the grantor, however, the right to use, occupy and enjoy, during his natural life, free of all rent or charge whatever and all molestation in the same,” the granted premises. It appeared that the grantee had married the daughter of the grantor, and that she died before the execution of the deed, leaving children who were still alive. It was held, that the deed did not pass a freehold to the grantee, presently, and create a new estate for life in the grantor, by way of reservation, but created a freehold estate to commence in futuro, and consequently, if regarded as a feoffment or bargain and sale, was void ; but that it was a good covenant to stand seised to uses, the consanguinity between the grantor and hia grandchildren being a sufficient consideration therefor, and it being competent to aver and prove such consideration, although a different one was set forth in the deed, and no allusion was made therein to such consanguinity ; and consequently that the deed vested the estate in the grantee, subject to the life estate of the grantor.</p>

<p>A mortgager of real estate whose equity of redemption had been attached by a creditor, in consideration of the sum of $ 1200, conveyed the land to the defendants, without his wife releasing her right of dower, and the defendants, at the same time, signed an agreement, by which, after reciting that the land had been so conveyed and mortgaged, and was subject to other claims and incumbrances, they promised the mortgager to pay him the sum of $ 1200, " after he has cleared and freed said premises from all claims and incumbrances, or die balance, if any there shall be, after having satisfied said claims and removed said "incumbrances, ourselves.” It was held, that the inchoate right to dower of the wife, was not a claim or incumbrance contemplated by such agreement.</p> <p>In an action against two, by the administrator of an insolvent estate, upon a joint debt, the defendants are not entitled to set off their several claims, allowed by the commissioners of insolvency, against the insolvent estate.</p>

<p>The provision in Si. 1822, c. 93, [Revised Stat. c. 90, § 58,] authorizing the sale ot goods attached on mesne process, upon the request of either of the parties to the action, is not limited to live stock and goods of a perishable nature, but extends to any chattel which is liable to depreciate greatly in value by keeping, or which cannot be kept without great and disproportionate expense.</p> <p>The certificate of the appraisers appointed under the statute, that the goods attached are liable to depreciate, and that the keeping of them will require great expense d.¡¿proportionate to their value, is conclusive evidence of these facts, in justification of a sale by the officer.</p> <p>Notice to the defendant, that the plaintiff has applied to the officer to make sale ol the goods on mesne process, and that the defendant may appoint one of the appraisers, may be given by leaving a written notification at the defendant’s usual place of abode.</p> <p>The giving a credit to the purchaser of the goods will not invalidate the sale ; but it seems it will render the officer responsible for the price.</p> <p>Where the defendant in a trustee process is defaulted at the return term, and the trustee appears at the same term and submits himself to an examination upon oath, and the case is continued in court for the purpose of determining whether he is chargeable or not, and he is ultimately discharged, he is entitled to tax costs for his travel and attendance, in the same manner as a prevailing party.</p>

<p>This was assumpsit on a joint and several promissory note, for the sum of $551, made by the defendants, Noah Smith and Josiah H. Adams, dated February 26th, 1827, and payable, one half in one year, and one half in two years, from April then next ensuing. Adams was defaulted. Smith pleaded the general issue.</p> <p>At the trial, before Shaw C. J., the defence set up was, that in the autumn of 1827, before either of the instalments of the note became due, it was agreed between the plaintiff and Smith, that if Smith would then pay one half of the note and take of the plaintiff, at par, a note for $ 21T4, which he held against one Willis, the plaintiff would exonerate and discharge Smith from the payment of the other half of this note ; and that Smith, in pursuance of this agreement, then paid one half of the principal of the note and the interest, which was indorsed thereon, and took Willis’s note at par, indorsed by the plaintiff without recourse.</p> <p>The jury were instructed ; 1. That if such agreement was made, as stated, he payment of one half of the note before the first instalment became due, and the taking of the note of Willis, constituted a good and sufficient legal consideration for the agreement.</p> <p>2. That an agreement forever to exonerate and discharge the defendant from the payment of the other half of the note, the note being several as well as joint, and the holder therefore having a legal remedy against the other promiser without joining Smith, was, in effect, an agreement never to call on or sue Smith ; and that to avoid circuity of action, such an agreement must be taken, in law, to be equivalent to a release.</p> <p>3. That such a release might be given in evidence under the general issue ; and, therefore, that if it were proved that such an agreement was made and executed, as stated, the jury would find a verdict for the defendant.</p> <p>The jury returned a verdict for the defendant.</p> <p>If the Court should be of opinion that these directions were erroneous, a new trial was to be granted.</p>

<p>If a writ against two is served on only one of them, and judgment is rendered against both, both must join in a writ of error to reverse the judgment.</p> <p>Error will not lie to reverse a judgment which might have been appealed from ; but where a judgment is rendered against a defendant who has not had due notice of the suit, he has no opportunity to appeal, and may maintain a writ of error ; and if one of several defendants has had notice, but has neglected to appeal, this will ^ not affect the others.</p> <p>The statutes of 1797, c. 50, and 1828, c. 114, requiring the continuance of an action brought against a person out of the State, does not extend to actions commenced before a justice of the peace.</p> <p>The provision in Revised Stat. c. 112, § 14, giving costs to the party prevailing on a writ of error, was held not to apply to a judgment reversed after those statutes went into operation, on a writ of error brought before that event.</p>

Assumpsit on a policy of insurance effected by the plaintiff for $ 800, viz. $ 150 on his one story framed store, situate on the Bucknam road in Medford, and occupied by him, and $ 650 on his stock in trade contained in the store. The store and stock in trade were consumed by fire on the 23d of February, 1835.

<p>Replevin for a stud-horse. The trial was before Put’ nom J., upon the issue of property in the plaintiff.</p> <p>The defendant admitted that the horse originally belonged to the plaintiff; but claimed title in himself under a sale by auclion made by Lewis Bemis, who had taken the horse damage feasant. '</p> <p>It appeared, that Bemis kept a mare within an enclosure adjoining a highway in Waltham ; that about daylight on the morning of May 31st, 1833, Bemis called to his hired men to go out and secure the plaintiff’s horse, which he said was with his mare in the enclosure; that when the first of the men got out of the door into the enclosure, the gate was open, the top bar being cracked but not removed ; that the horse and mare were together within the enclosure near the gate, and going towards it; and that when Bemis came out of the house, the horse was in the highway, where they secured him and impounded him in Bemis’s barn.</p> <p>The plaintiff proved, that Bemis had said, that when he first saw the horse, on the morning in question, he was in the highway. The plaintiff thereupon contended, that the distress thus made was unlawful, as being made in the highway. But this objection was overruled, for the sake of proceeding in the trial.</p> <p>On the same day the following notice was sent by Bemis to the plaintiff: “I hereby notify you, that I have taken up as an estray doing damage in my enclosure, a grey stud-horse belonging to you ; said horse broke down the gate and fence, and went into my ground and damaged my mare ; and I have the said horse impounded, under my immediate care and inspection, in my barn at Waltham, and my damages are six dollars. Said horse I impounded on the morning of the 31st of May, 1833.”</p> <p>A warrant was issued by the town clerk of Waltham to cer tain persons, requiring them to ascertain and estimate the dam age done by the horse, and also to appraise the value of the horse ; and the appraisers, in their return, estimated the damages at the sum of $ 16-25, and appraised the horse impounded at the sum of $ 30. The damages not having been paid, the horse was sold by auction in due form of law, to the defendant, for the sum of $ 62.</p> <p>The plaintiff then offered to prove by the testimony of one of the appraisers, that in estimating the damages they took into consideration the injury done by the horse to the mare, which constituted a large part of such damages. The defendant objected to the admission of this evidence; but this objection was also overruled, for the purposes of the trial.</p> <p>The plaintiff also offered to prove, that since this action was commenced, Bemis had declared to a hired man of the plaintiff, that the horse was in the highway when he first saw him on the morning in question. The defendant objected to this evidence ; but it was admitted by the judge.</p> <p>The defendant contended, that under the circumstances of the case, the burthen of proof was on the plaintiff, to satisfy the jury that the gate was broken or opened by some other agency than that of the horse ; and that if the plaintiff did not remove their doubts on this point, they ought to find for the defendant.</p> <p>The plaintiff, on the other hand, contended that the burthen of proof was on the defendant, to satisfy them that the horse actually broke or opened the gate ; and if he failed to remove their doubts on this point, they ought to find for the plaintiff.</p> <p>This point was ruled by the judge in favor of the plaintiff</p> <p>The only question submitted to the jury to decide, was, whether the defendant had satisfied them that the gate ivas shut, or, in other words, w hether the land of Bemis, at the time, was enclosed by a legal and sufficient fence or not.</p> <p>The jury returned a verdict for the plaintiff.</p> <p>The jury stated, on being inquired of by the judge, that it was not proved to their satisfaction, that the land was enclosed by a legal and sufficient fence.</p> <p>The verdict was taken subject to the opinion of the whole Court upon the points of law raised at the trial.</p>

<p>Replevin for articles of household furniture. The writ bears date of March 15th, 1834.</p> <p>The defendant pleads non cepit ; upon which issue is joined</p> <p>Under this issue, the plaintiff produced in evidence a deed of mortgage, dated November 13th, 1832, and recorded in the city clerk's office in Boston on December 3d, 1832, and m the town clerk’s office in Cambridge on July 29th, 1833, by which deed the defendant conveyed to the plaintiff the articles of furniture named in the writ, to secure the payment of $667-53, in four semi-annual payments. The plaintiff then introduced as a witness one Stocker ; who testified, that a day or two prior to the date of the writ, he went, by the plaintiff’s direction, to Cambridge, where the defendant then lived, and demanded the property described -in the mortgage, and the defendant thereupon pointed out to him all the articles named in the writ, except a few pieces of crockery ware which had been broken, and made no objection to the plaintiff’s taking possession of the property ; but the witness was prevented from taking possession, by one Richardson, who was present. The plaintiff also read in evidence a letter, dated the 11th of November, 1834, written by the defendant to the plaintiff, in which he says that he shall make no defence in this suit, but that he does not restrict his bail from doing as he shall think best.</p> <p>2. The defendant also pleads, that on the 26th of July, 1833, he was possessed of the goods and owned them ; that on that day, one Livermore caused them to be attached by one Edwards, a deputy sheriff, in a suit against this defendant ; that Livermore obtained judgment at March term, 1834, of the Common Pleas in this county, for $401-60, which judgment is still in full force and unsatisfied, and these goods, at the time of the commencement of the present action, were held by Edwards, in virtue of his attachment. The plaintiff, in his replication, alleges that the goods were, on the 26th of July, 1833, and ever since have been, his property, and ■ traverses the defendant’s allegation that on that day they belonged to the de fendant; and issue is joined upon this traverse.</p> <p>3. The defendant’s third plea is like the second, substantially, except that it states that the goods were in the custody of Richardson as the servant of Edwards, having been delivered by Edwards to Richardson to be kept by virtue of the attachment. The replication and issue on this plea are similar to those on the second.</p> <p>4. In the fourth plea the defendant says, that the goods, at the time of the supposed taking, were the property of Richardson, traversing that they were the property of the plaintiff. The plaintiff, in his replication, reaffirms that the goods were his property, and issue is taken thereon.</p> <p>The plaintiff relied upon the mortgage to support these three last issues, on his part. The defendant proved that he lived in Cambridge on the 3d of December, 1832, the time when his mortgage was recorded in Boston, and continued to live there until the commencement of this suit. It also appeared, that on the 12th of August, 1833, while the goods were held by Edwards under the attachment, he appointed Richardson keeper of them, and Richardson, by a writing under his hand and seal, of that date, “ promised to keep said goods safely, at his risk and expense, and redeliver the same to said Edwards, &c. on demand, and in failure thereof, promised to indemnify said Edwards,” &c. On the same day Richardson appointed H. Corbet and J. Adams keepers of the goods, under him. The goods remained in the house in Cambridge occupied by the defendant, and were used by him after, as they had been before the attachment, until they were taken by the plaintiff on his writ of replevin. The defendant gave up the lease which he had of the house before the attachment, from Richardson the owner, who then made an oral lease to Corbet.</p> <p>Morton J., before whom the cause was tried, being of opinion that the plaintiff was not entitled to recover, a nonsuit was entered, subject to the opinion of the whole Court.</p>

<p>The 12th at tide of the Declaration of Rights, which provides, that in criminal cases, the accused shall have the right$< to meet the witnesses against him, face to face,” is not violated by the admission of testimony in a criminal trial before a jury, to prove what a deceased witness testified at the preliminary examination of the accused before a justice of the peace.</p> <p>it is not sufficient, in such case, to prove the substance and effect merely of the testimony of the deceased witness, although the memory of the witness offered to prove such testimony, be aided by notes taken at the preliminary examination ; but the whole of the testimony of the deceased witness upon the point in question, and the precise words used by him, must be proved.</p>

<p>A promissory note given for compounding a public prosecution for a misdemeanor, ii founded upon an illegal consideration.</p>

Petition for a mandamus to the county commissioners of this county.

<p>This was a writ of entry to recover two parcels of land in East Sudbury. The demandant counted on his own seisin and a disseisin by the tenant. The tenant pleaded nul disseisin.</p> <p>At the trial, before Shaw C. J., it appeared that both parties derived their title from Reuben Sherman senior.</p> <p>The demandant produced in evidence a warranty deed embracing the premises, from Reuben Sherman senior to Reuben Sherman junior, dated May 9th, 1821 ; and a deed of the same land, from Reuben Sherman junior to the demandant, dated August 25th, 1828. Both of these deeds were recorded on August 30th, 1828.</p> <p>On the same 25th day of August, 1828, the demandant mortgaged back the land to R. Sherman junior, to secure the payment of the purchase money in one, two and three years This deed was recorded on August 30th, 1830.</p> <p>The tenant then gave in evidence a deed of mortgage given by R. Sherman senior to the tenant, to secure the payment of $ 1,550 in three, six and ten years, dated May 25th, 1818, but not recorded until December 23d, 1829 ; and a mortgage deed dated May 9th, 1821, and recorded on May 5th, 1828, from R. Sherman junior to R. Sherman senior, given to secure the payment of three notes for the sum of $ 1,100, payable, one on demand, another on May 9th, 1824. and the third on May 9th, 1828.</p> <p>The tenant then, in order to show, that the legal estate which was vested in R. Sherman senior by the mortgage deed from R. Sherman junior, was conveyed to the tenant, offered in evidence a warranty deed from R. Sherman senior to Samuel Sherman, dated June 3d, 1830, and recorded June 5th, 1830, embracing one of parcels claimed by the demandant. This deed did not purport to be subject to any mortgage, or to be the assignment of any mortgage or any note or other security for money. One question raised was, whether the legal estate held at the time by R. Sherman senior, as mortgagee, in this parcel of land, passed by this deed to Samuel Sherman, so that if after this deed R. Sherman senior received payment of the sum secured by the mortgage to him, the estate conveyed by him to Samuel Sherman would be defeated.</p> <p>The tenant further produced in evidence a quitclaim deed from himself and Reuben Sherman senior to Samuel Sherman, embracing both parcels of the demanded premises, dated April 1st, 1833, and recorded May 9th, 1833 ; and a deed of mortgage from Samuel Sherman to the tenant, of the same date, and recorded in May, 1833, given to secure the payment of the sum of $ 1,000.</p> <p>The tenant contended, that, if the legal estate was in R. Sherman senior down to June, 1833, it passed by the above deed to Samuel Sherman, and on the same day, by the deed of Samuel Sherman to the tenant, it passed to him as mortgagee ; and this claim covers both parcels demanded.</p> <p>The demandant then proposed to prove, that the mortgage given by Reuben Sherman junior to Reuben Sherman senior, under which the tenant claimed title, was paid and discharged in March, 1830. As there was no discharge in the registry of deeds, and no release or instrument of discharge offered, a doubt was expressed whether proof of payment after condition broken would wholly discharge the mortgage and revest the estate; but for the purpose of presenting the whole case the evidence was admitted.</p> <p>The chief justice being of opinion that the evidence would not warrant the jury in finding that the mortgage had been paid and discharged, the demandant became nonsuit subject to the opinion of'the whole Court, upon the facts in the case. If the Court should be of opinion, that the demandant was entitled to recover, the nonsuit was to be taken off, and the tenant to be defaulted, or a new trial granted, as the Court might order ; otherwise judgment was to be entered upon the nonsuit.</p>

By an agreed statement of facts, it appeared, that the plaintiffs, Hawes and Wood, had contracted with the defendants to erect a barn on the town farm and to do some other work, for which the plaintiffs were to be paid the sum of $ 800 ; that tl e work having been performed, the defendants paid to the plaintiffs on account thereof, the sum of $ 600 ; that after this action was commenced, the defendants paid into court the sum of $76 06 on the common rule, but refused to pay…

<p>This was a writ of entry, on a mortgage. The plaintiff, as administratrix of the estate of Joseph P. Hall, demanded one undivided fifth part of certain real estate in Medford, declaring on the seisin of her intestate and a disseisin by the tenant. The tenant pleaded nul disseisin.</p> <p>The case was submitted to the Court upon a statement ot facts reported by a commissioner. It appeared, by his report, that in November, 1786, Simon Tufts made his last will, which was proved in January, 1787, wherein he gave the real estate described in the writ, to his wife for life, and “ the remainder of his estate, whether real or personal, in possession or reversion, to his five children, to be equally divided to and among them or their heirs respectively, always intending and meaning that none of his children shall dispose of their part of the real estate in reversion, before it is legally assigned them.”</p> <p>Turell Tufts, the defendant, and Hall Tufts, the mot'gager, were two of the five children of the testator. His wife entered on the land In question, and held it until her death, which happened in August, 1830. The testator gave other lands to his children, on w'hich they entered ; and his estate was divided according to his will, by a warrant from the judge of probate, in 1790. In the early part of 1796, Hall Tufts sold all his patrimony except his portion of the remainder in the demanded premises.</p> <p>On the 13th of March, 1798, Hall Tufts made a note of hand, whereby he promised to pay Ebenezer Hall or order $495-21, on demand, with interest ; which was in the handwriting of Ebenezer Hall 3d, son of Ebenezer, and was witnessed by him.</p> <p>On the 5th of December, 1798, Hall Tufts being then res! dent at Hartford in Connecticut, made a deed of mortgage, in which he says, “ I, Hall Tufts, of Medford, &c. do for and m consideration of the sum of $495-21 had and received, and paid by Ebenezer Hall 3d, of Medford aforesaid, remise, release, and forever quitclaim unto the said Ebenezer Hall 3d, and to his heirs and assigns, all my right, title, claim and demand which I have in and unto all the real estate situate in Medford aforesaid, and is the same real estate which was given me by the will of my father Simon Tufts, &c. To have and to hold the above remised and released premises to him the said Ebenezer Hall 3d, and to his heirs and assigns forever, to his and their own proper use, benefit and behoof......Always provided, and these presents are upon condition, that whereas the said Ebenezer Hall 3d, by a note of hand, dated Medford, March thirteenth, one thousand seventeen hundred and ninety-eight, for the sum of $495-21, payable on demand and on interest, had and signed by Hall Tufts, and as a further security and collateral security for the payment of the sum contained in said note, this instrument is made. Now in case the said Hall Tufts shall well and truly pay to the said Ebenezer Hall 3d, the sum contained in said note and the interest thereof, then the foregoing instrument is to be null and void and of no effect, otherwise to stand and remain in full force, power snd virtu" in the law.” The mortgage was written by Hall Tufts himself and was enclosed in his letter, dated at Hartford the 5th of December, 1798, and directed to Ebenezer Hall 3d. The deed was not acknowledged, but was proved by the testimony of one of the subscribing witnesses in 1807, after the decease of Hall Tufts, and was duly recorded.</p> <p>The commissioner found that the mortgage was intended by Hall Tufts to secure the note above mentioned, because in his several letters of September 10th, 1798, addressed to Ebenezer Hall 4th, and of November 12th, December 4th, and December 5th, 1798, addressed to Ebenezer Hall 3d, (which were in the case and are described and quoted in the opinion of the Court) he acknowledges that he is indebted to Ebenezer Hall in a note of hand, and professes his willingness to secure it on any property “ in possession, reversion, or expectancy ” ; and because the mortgage describes a note of the same date and amount as that which was held by Ebenezer Hall.</p> <p>There were four persons living in Medford, named Ebenezer Hall. Ebenezer Hall 4lh testified, that he never had any dealings with or claims upon Hall Tufts, and that he had often taken letters from the post-office addressed to Ebenezer Hall 4th, which on opening he found belonged to Ebenezer Hall 3d. These facts led to the conclusion, that in the letter above specified, addressed to Ebenezer Hall 4th, Hall Tufts had mistaken the legal designation of the Halls and supposed that he was addressing his creditor.</p> <p>In the ledger of Ebenezer Hall were entries, in an account opened with Hall Tufts, of a charge, under date of September 15th, 1797, of £85 19s. 2d., for rum, and a credit under date of March 12th, 1798, of the same amount, by note. These entries were in the handwriting of Ebenezer Hall 3d.</p> <p>In 1810, Ebenezer Hall 3d, (then Ebenezer Hall 2d, his legal designation having been changed, in consequence of his father’s death,) assigned the mortgage to Joseph P. Hall, his heirs, &c. “ with the right to receive to his and their own use, the sum mentioned in the condition of said deed, whenever the same shall be legally tendered or paid agreeably to the condition thereof.” Joseph P. Hall died in 1813, and the demandant was duly appointed his administratrix.</p> <p>Hall Tufts died in 1801 ; and from the time of making the note he had no visible means of paying it, except by the property mortgaged.'</p> <p>The tenant, after the decease of his mother and until the commencement of this suit, held exclusive possession of the real estate in question, denying all right of the demandant thereto.</p> <p>Ebenezer Hall, the elder, died in 1800, leaving two sons and a daughter. Ebenezer Hall 3d, the eldest son, was born "n 1770, and died in 1812. Gilbert Hall, the second son, was bain in 1771, and died in 1802, without issue and unmarried. The two sons, when they respectively came of age, or soon after, became jointly interested with their father in the business of a distillery and store, and neither of them did any business except in this connexion. The books were kept in the name of Ebenezer the elder till the time of his decease, in 1800, though Ebenezer the son made the purchases of goods for the store and distillery and gave his own notes for them ; which notes were generally indorsed by his father, who gave little attention to business after his sons became connected with him. Ebenezer Hall 3d was appointed administrator of the estate of his father. The note of Hall Tufts was not indorsed by any one. In the assignment of the mortgage, Ebenezer Hall 3d does not style himself administrator or surviving partner. The note was not inventoried as a part of the personal property of his father. The husband of the testator’s daughter assented to the claim of Ebenezer Hall 3d to hold all the stocks and demands of the distillery and store as surviving partner.</p> <p>The tenant objected to the statement of the intent of Hall Tufts to secure the note above described, and to the evidence from which that intent was inferred, and to the evidence of the copartnership. He also objected to the recovery of the demandant, on the grounds, that the note produced did not comport with the mortgage deed, and was not intended to be secured thereby ; and that by the terms of the will of Simon Tufts, Hall Tufts could not dispose of his share of the land in question, in his mother’s lifetime.</p>

Assumpsit on an account for the sum of $9-70. The writ was dated August 7th, 1834.

This was an action of assumpsit, brought upon an alleged promise of the defendant to pay a debt due from Benjamin Woodward to the plaintiff. In the Court of Common Pleas, the parties stated a case.

By an agreed statement of facts it appeared, that this was an action brought by the keeper of the jail and master of the house of correction in Cambridge, to recover for the support of certain nursing infants, who were paupers ; that the mothers of the paupers were foreigners having no legal settlement in this State, and were duly sentenced to, and confined in, the jail or house of correction during the time when the plaintiff furnished such support; that at the time of…

<p>An agreement between D. and F. recites, that D. is the owner of land which would be enhanced in value if the Boston and Worcester Rail Road Corporation should establish their depot on certain flats, and that in order to procure the corporation to make such location of the depot, it is necessary to form a joint stock company to purchase the flats and give a portion thereof to the rail road corporation for the de. pot, and that F. has agreed to aid in getting up such a company and in causing the rail road corporation to fix its depot on the flats, it being understood that he is of opinion that the rail road corporation, with a view to the public good and the interest of its stockholders, ought to have its depot there ; and D. agrees to make F. a pecuniary compensation, so soon as the depot shall be located on the place specified. A company was accordingly formed and incorporated, with power to purchase and hold the flats and to give a portion thereof to the rail road corporation as an inducement to establish the depot thereon, and an agreement was made between the two corporations by which the depot was located on the flats. F. was a mein ber of the rail road corporation at the time when he made the agreement with D., and subsequently became a member of the joint stock company. This agreement was known only to the parties and the subscribing witnesses, though there was no stipulation that it should be kept secret. It was held, that this agreement was contrary to public policy and to open, upright and fair dealing, because it tended injuriously to affect the public interest in having the fittest location of the depot, and the interests of the two corporations, and consequently \* was invalid.</p>

This case was arguéd by Greenleaf and Jl. Bartlett, for <~J ^le Pet|li°ners) and by Choate, for the respondents. The material facts are stated in the opinion of the Court, delivered by

The answer of Richard Farwell, made at June term, 1834, of the Court of Common Pleas, set forth, that previously to the service of the writ, the defendant and Oliver N. Shannon, who, as the respondent supposed, were partners, commenced an action against the respondent and Silas Temple, to recover a debt alleged to be due from them jointly, on a building contract ; that this action was referred, under a rule of court, to referees, whose award was to be final ; that, in the…

<p>This was a complaint instituted under St. 1825, c. 89, to recover possession of certain real estate.</p>

Replevin for certain property assigned to the plaintiff. The trial was before Morton J. It appeared, that Joseph E. Read junior and Paddock R. Read, who were in partnership, under the firm of Joseph E. h,ead Jr. & Co., assigned their joint and several property to the plaintiff, in trust to sell the same and to apply the proceeds, after defraying expenses, &c. to the payment of the claims of the plaintiff and Abraham Bowen, and of such other creditors as should become parties…

<p>A corporation is not authorized to appropriate private property to public uses, without the consent of the owner, unless it appear, either by the express words of the act of incorporation, or by necessary implication therefrom, that the legislature intended to confer such authority upon the corporation.</p> <p>An act incorporating certain persons for the construction of a bridge, and conferring upon them authority to take the land necessary for such purpose, without the consent of the owner, and making no provision for his indemnification, is, in this respect, in contravention of the constitution of the Commonwealth, and is so far void.</p>

Trespass quare clausum. The first count in the declaration was for a trespass committed in December, 1833. The second count was for divers trespasses committed in 1834. The trial took place before the Revised Statutes went into operation, Morton J. presiding.

This was assumpsit upon two promissory notes, against the maker. The cause was tried before Morton J. The first note, which bore the date of November 3d, 1828, was for the sum of $ 500, and was payable on demand, with interest, to the firm of John Macomber & Co. At that time, the firm consisted of the defendant, Bradford Howland, Daniel Howland junior, and Laban Thacher.

This was an action on the case, against the sheriff of the county of Bristol, for a default of one of his deputies. The plaintiffs were Moses Guild, Samuel Guild, Milton Barrows and Milton Barrows junior.

Assumpsit for wood alleged to have been cut on the plaintiffs’ land. At the trial of this case, before Morton J., the plaintiffs produced in evidence certain deeds by which a parcel of land, called lot No. 12, in Plymouth woods, was conveyed to them.

On a case stated it appeared, that this was assumpsit on five proriiissory notes, given by the defendant to the plaintiff’s intestate, and dated November 30th, 1822, May 26th, 1828, February 16th, 1829, May 13th, 1829, and September 5th, 1829, respectively. The notes were payable on demand and were not witnessed. The writ was dated the 12th of May, 1835, and served on the 15th.

<p>Where property was insured by a mutual insurance company to an amount founded on a representation made to them in regard .to its value by the assured, and with the knowledge, or the means of knowledge, of the situation and actual value of the property, and the assured paid a premium and assumed liabilities as a member of the company, proportioned to the amount insured, it was held, that in the absence of fraud, the company was liable for the whole of such amount, although it exceeded the value of the interest of the assured.</p>

This action was brought to recover a parcel of land, with the water privilege and appurtenances thereto belonging, situated in Kingston.

<p>The shipper of goods on board a coasting vessel, is not liable, under the trustee piw cess, to a creditor of the master, for the amount of the freight, it appearing, that the master had no claim against the owners of the vessel, for his services, rr otherwise.</p>

<p>Assumpsit against the defendant as indorser and guarantee of a promissory note, dated June 28th, 1824, for the sum of $ 800, made by Ira Guild, and payable to the defendant or his order, in annual instalments, of $ 200 each, on the first day of April, 1826, 1827, 1828 and' 1829, with interest. On the back of the note were written by the plaintiff, over the signature of the defendant, the following words : “ I, the subscriber, order the within note paid to Jabez Talbot, and guaranty the payment of the same.”</p> <p>At the trial, before Putnam J., it appeared that Guild, at the time when the note was made, gave the defendant a mortgage of one third part of a factory in Sandwich, to secure the payment of the note ; that the defendant, at the time when the note was indorsed to the plaintiff, also assigned to him the mortgage; that before he indorsed the note, he told Guild that he should guaranty the note, but that Guild must take care to pay it and not trouble him ; and that Guild, on the 7th of September, 1832, released to the plaintiff all his right, title and interest in the equity of redemption.</p> <p>There was no evidence, that the plaintiff had ever demanded payment of Guild ; and it was agreed by the parties, that the plaintiff had never notified to the defendant, that the note was unpaid, nor demanded payment of him, until the 23d of December, 1834.</p> <p>Guild, being called as a witness by the plaintiff, testified, that when the last instalment became due, he called upon the defendant and told him that he did not know that he should be able to pay any more on the note, and the defendant said “ he was clear, though he guarantied it, because the plaintiff had not notified him that the witness executed the release to the plaintiff, at the request of the defendant, who added, u do attend to this, for Mr. Talbot is continually harassing me about it ;” that the witness was the owner of one third of the factory at the time when the note was given, and he then purchased another third from the defendant; that he continued to own two thirds until May 1829, when he sold one third for $750 ; that he and his partners occupied the factory together until November 1829 ; that he continued to take the rents and profits of one third part thereof until the 7th of September, 1832, when he released it to the plaintiff; that in April 1829, besides his share in the factory, he had property to the amount of about $350, which was liable to attachment, and that he continued openly and visibly to hold the same until November 1829, when it was taken by his creditors ; and that since that time he had remained wholly insolvent.</p> <p>A verdict was taken by consent for the plaintiff, for the amount due on the note, subject to the deduction of the value of the mortgaged property at the time when it was quitclaimed by Guild to the plaintiff, in 1832 ; but if the Court should be of opinion, that the jury would not be warranted in finding for the plaintiff, by reason of any loches on his part in not seasonably collecting the note, or demanding payment thereof and giving the defendant notice of the non-payment, then the plaintiff was to become nonsuit.</p>

<p>A devise of<( all my real estate” without words of limitation or inheritance, passes a fee simple.</p>

<p>This was a bill in equity setting forth, that the complainant, on the 24 th of June, 1833, being seised in fee of a lot of land in Medway, of the value of $50, which he was willing to sell and convey, for less than its real value, to the defendant Fogg, as a site for buildings for his own use as a mechanic, conveyed the same to Fogg for the sum of $25 ; that Fogg, at the same time, and in consideration of such conveyance, executed a contract in writing with the complainant, whereby it was agreed, that if Fogg should ever sell the land, the complainant should have the first offer, and should have the land, provided he would g'Ve as much therefor as any other person, and not “ther wise; that such agreement was duly recorded in the registry of deeds ; that the complainant had always been ready to pay Fogg as much money for the land as any other person would give therefor, and has often requested Fogg to convey it to him, in case he should convey it to any person ; but that Fogg, on the 16th of March, 1835, without first offering the land to the complainant, sold and conveyed it in fee simple to Cutler Partridge, the other defendant; that Partridge, at the time when he received such conveyance of the land, knew of the agreement made between Fogg and the complainant, and that Fogg had no right to convey the same to Partridge ; and that as this transaction between the defendants was secret, the com plainant does not know exactly what sum of money was paid or agreed to be paid as the consideration of such sale, but that he believed it to be about the sum of $50 ; that he has frequently called on the defendants to inform him what sum was actually paid or agreed to be paid as the consideration of the sale, and has frequently offered to pay to Partridge such sums of money as he has paid on account of the land, and to perform any agreement which he has made for the payment of any further sums on account thereof, and has also frequently demanded of Partridge to convey the land to him : wherefore, the complainant prays, that the defendants may be compelled to make discovery, &c. and to perform specifically the agree? ment between the complainant and Fogg.</p> <p>The answer of the defendant Fogg admits the existence of the agreement between himself and the complainant, but avers, that on the 16th of March, 1835, the land was under attachment in a suit against the respondent for the sum of about $50, exclusive of costs, and that on the same day he was indebted to Partridge in the sum of $ 300, a part of which was lent him by Partridge to remove the attachment, and that it was agreed between him and Partridge, that he should give to Partridge a mortgage of the land to secure payment of the sum due to Partridge ; that the respondent then gave Partridge an absolute deed of the land, under an engagement then made to him by Partridge, that he would give the respondent a bond to reconvey the same, on his paying that sum with interest ; that Partridge did afterwards, in pursuance of his agreement, execute such a bond bearing even date with the deed to him, which bond is now in the respondent’s hands ; that the respondent, at the time when such deed was given, was informed and believed that the deed and bond constituted a mortgage, agreeably to his intention, and to the agreement originally made between him and Partridge ; that he has since paid to Partridge about one third part of the sum secured by the deed ; that the respondent did not wish or intend to sell the land in any sense which he attached to the promise made by him to the complainant; that he intended and expected, and still intends and expects, to redeem the land ; and that he intends if he should ever desire or be obliged to sell the land, that the complainant shall have it, provided he will give as much therefor as any other person.</p> <p>The answer of Partridge admits, that at the time when Fogg conveyed the land to him, Fogg informed him that he had engaged to give the complainant the first offer of the land, but denies that it was ever the intention or wish of the respondent that the land should become his own ; avers, that when he received the deed, he expected, and had no reason to doubt, thai Fogg would redeem the land by paying the debt secured thereby ; and denies that the complainant ever requested the respondent to convey the land to him.</p> <p>The complainant filed a general replication.</p>

<p>This was an action to recover compensation for the support of Eunice Allen, whose legal settlement was alleged to be in the town of Dedham.</p> <p>At the trial, before Putnam J., it was admitted that the pauper derived her legal settlement from her grandfather, Daniel Haven ; and it appeared, that he was taxed in Dedham for his poll in 1762, and that he afterwards lived in that town for many years, and until his death. There was no other evidence as to the time when he came to reside in Dedham.</p> <p>The defence set up was, that Daniel Haven was duly and legally warned to depart from Dedham within one year from the time when he came to reside there.</p> <p>The defendants proposed to prove, from the records of thrt town, “ that, on the 17th day of January, 1763, a warrant was issued for the warning of Daniel Haven and Hannah, his wife* and a negro woman, named Lettis, and John Fisher, to depart from the town, and that the warrant was given to Jeremiah Bacon, and that, on the 28th day of March of that year, an order was granted to Jeremiah Bacon, late constable, for 7s. 8d., for warning sundry persons to depart this town.” It did not appear from such records, that any other warrant was delivered to Bacon to warn out other persons in the years 1762 and 1763, when he served as constable.</p> <p>It was certified by the clerk of the courts in the county of Suffolk, that on a careful examination, the warrant in question could not be found; that no warrants for the warning out of any persons from the towns in the county of Suffolk, of which the county of Norfolk then formed a part, could be found on the files or among the papers for the years 1762 and 1763 ; and that the files and papers for those years were in great disorder.</p> <p>This evidence, which was all that the defendants proposed to offer, was rejected ; and a verdict was taken for the plaintiffs, by consent.</p> <p>If the Court should be of opinion, that this evidence was legally admissible, and that the jury would have been warranted thereupon, in presuming that the warning out of Daniel Haven was legal, then the verdict was to be set aside and a new trial granted ; otherwise judgment was to be rendered according to the verdict.</p> <p>The case was argued in writing.</p>

<p>Trover for twelve barrels and fifty half-barrels of beef. Trial before Putnam J.</p> <p>It appeared that the defendant, who was a deputy sheriff, attached the beef on the 14th of April, 1834, on a writ against Samuel Titcomb, and sold it.</p> <p>The plaintiff offered in evidence a receipted bill of sale of the beef to himself from Titcomb, dated November 29th, 1833; and an accountable receipt, dated November 28th, 1833, signed by Titcomb, certifying that he had in his possession twenty-six barrels and fifty half-barrels of beef, which he promised to deliver to the plaintiff or his order, free of expense, in five months, fire excepted, or to pay him therefor, at certain rates, and that such beef was stored in a cellar therein specified.</p> <p>The plaintiff called S. W. Marston, Esq. as a witness, who testified, that on the 25th of November, 1833, he received a bill of sale from Titcomb to B. Burgess & Son, of one hundred barrels of beef, which were to be held as collateral security for the payment of a debt due to them from Titcomb, " which had been left with the witness for collection ; that Tit-comb gave him the key of the cellar where the beef was stored, in order that he might hold the beef as such security ; that he afterwards received a letter from the plaintiff, dated the 5th of December, 1833, containing the following words: “Enclosed you have a certificate and a copy of a bill of beef bought of Samuel Titcomb. Whenever this will bring cost, cash, I wish it sold, or let Mr. Titcomb have it by paying cash ; this is the understanding. The beef is stored with the lot you have possession of, for Benjamin Burgess & Son. I wish you to keep the beef in your possession until cash is received for itthat Titcomb, upon being informed that the plaintiff had requested the witness to take possession of the beef sold to the plaintiff, told the witness he might take possession of it for the plaintiff and dispose of it as the witness pleased ; that the wit ness then held the key, with Titcomb’s knowledge, for the purpose of keeping possession for Burgess & Son and for the plaintiff; that immediately after thus taking possession for the plaintiff, the witness went to the person having charge of the cellar, to hire the storage of the beef sold to the plaintiff, and did hire the storage accordingly, and such person charged and the witness paid for the storage up to the time when the beef was attached by the defendant; -that the debt due to Burgess & Son not having been paid, one hundred barrels of beef were, on the the 28th of January, 1834, at their request, taken out of the cellar for them and deposited in another place ; that the witness took such barrels as he pleased for Burgess & Son, and that Titcomb did not assist him, but assented to his so taking them ; that after the beef of Burgess & Son was removed, Titcomb applied to the witness for the key of the cellar, saying that he had beef there, other than that which he had sold to the plaintiff, and which he wished to sell ; that the witness lent him the key accordingly, and it was returned to the witness, and he held it at the time of the attachment; that the witness, having heard of the attachment, went with the defendant to the cellar and found there all the beef which was attached, but fourteen barrels were missing ; that the beef was branded with the Boston inspection mark ; that there was no separation of the barrels sold to the plaintiff, or to Burgess & Son, and that the witness never understood that any thing more was to be done by Titcomb, to convey the beef to the plaintiff, by weighing or separating or selecting ; and that there were between one and two hundred barrels of beef more than the number sold to Burgess & Son.</p> <p>Another witness, a dealer in beef, testified, that a purchaser has no motive for selecting one barrel of the beef so branded, rather than another.</p> <p>Judgment was to be rendered for the plaintiff, if the Coun should be of opinion that the evidence was sufficient to sustain a verdict in his favor.</p>

<p>A grantor conveyed all bis farm in S. bounded, &c. also six acres of woodland, described by bounds, “ being the same farm whereof M. died seised, and which the heirs of M. conveyed to me by two deeds recorded,” &c. It was held, that the woodland passed to the grantee, although it was never owned by M. nor conveyed by his heirs to such grantor.</p>

Assumpsit for 410 bushels of corn, sold and delivered on and between the 6th and 9th of May, 1835. The writ was dated May 12th, 1835. Trial before Putnam J. The plaintiff proved the delivery of 410 bushels of corn, the price of which was 85 cents per bushel, and amounted to the sum of $ 348'50. The defendants, Hoyt & Kimball, contended that there was a special contract for the sale of 1000 bushels, and that the quantity delivered was in part performance of such contract.

<p>Evidence that the indorser of a note was frequently at a certain bank, transacting business there, and that he frequently paid notes there, was held sufficient proof of his being conversant with the usage of the bank to give notice to promisors to pay at the bank, instead of sending the notes to them and demanding payment.</p> <p>A book kept by a bank, in which a clerk regularly entered certificates of his having given notices to the makers and indorsers of promissory notes, taken in connexion with his testimony that it was his practice to carry the notices personally to the house or place of business of the parties, and that he has no doubt they were carried as usual, in the case of a certain note mentioned in the book, though he has no recollection in relation to such note, is competent and sufficient evidence to prove that notices were so given in the particular case.</p> <p>Where such clerk produced a printed form, in common use, and testified to his belief that the notices in question were in the same form, it was held to be competent and sufficient evidence of this fact.</p>

<p>Br an agreed statement of facts, it appeared, that this was an action on the case for the continuance of an alleged obstruction of the plaintiff’s way ; that he had previously brought an action against the defendant for the same obstruction ; that such previous action was tried on the general issue ; and that the defendant recovered judgment, in November, 1837.</p> <p>If the judgment in the former action was a bar to this action, the plaintiff was to become nonsuit; otherwise, this action was to go to trial.</p>

<p>A town is authorized to indemnify its officers, against any liability which they may incur in the bond Jide discharge of their duties, although it turn out that they have exceeded their legal rights and authority.</p> <p>Where a drain was dug by a surveyor of highways, for the purpose of raising a legal question as to the bounds of a highway, and the town appointed a committee to defend an action brought against the surveyor therefor, and voted to defray the expenses incurred by the committee, it was held, that the town was bound by such vote,-although it were under no previous obligation to indemnify the suneyor, and that the committee were entitled to compensation and indemity from the town, for their services and expenses.</p>

Debt upon St. 1817, c. 73, for entering the close of the plaintiff, and cutting down and carrying away an oak tree of the value of $ 30, whereby the defendant was alleged to have incurred a penalty of five, times the value of the tree. The defendant relied upon a license from the plaintiff as a defence.

<p>This was an action for work and labor done and performed. The parties stated a case.</p> <p>On the 31st of December, 1833, the defendants entered into an agreement with G. W. Winslow, in the following words;</p> <p>“ This is t^ certify, that whereas we, the subscribers, with •the hereafter named Daniel Richardson, have purchased of Timothy Saunders, a blacksmith’s shop and tools in Middleton, and George Washington Winslow agrees to take the charge of said shop, and exercise his said trade as blacksmith' and agent, said Washington Winslow is to have the profits of his labor, to be appropriated to the payment of said shop and tools and the stock that shall be furnished ; and whenever said Winslow shall pay 1G5 dollars, with interest, for the shop and tools, and the cost of all stock that shall be furnished him, then we agree to convey him the said shop and tools, by his paying all expenses that shall arise for our trouble, and the charges that shall arise by Daniel Richardson being agent to purchase stock. And we hereby appoint Daniel Richardson agent to purchase all necessary stock for said shop, by his keeping a book of the cost of stock and the work done in the shop.” “ And I, Washington Winslow, on my part, hereby certify, that I consent and agree to the above contract and agreement made and signed aforesaid, so far as respects my agency as blacksmith, and that I will keep an account of all work done in the shop and deliver the said Daniel Richardson an account monthly, and that he may have access to the books, at any and all times, and that the books shall be kept in the name of said company ; and said Richardson is hereby authorized to collect all bills for work done in the shop and cash received by said Richardson, allowing me what shall be necessary for me and my family’s support; provided always, reserving the stock and tools with interest and expenses.” “N. B. It is to be remembered, that what money is subscribed and paid, is to be for the benefit of said Winslow ; and said Richardson is authorized to collect and appropriate the same for that purpose.”</p> <p>It appeared, that Winslow carried on the business of a blacksmith in the shop, under this agreement, stock being furnished by Richardson in behalf of the defendants ; that the plaintiff worked at the shop with Winslow, and on his application ; and that, subsequently, the defendants, having dissolved their connexion with Winslow and resumed possession of the shop and stock, took the books, and collected the bills.</p> <p>If the Court should be of opinion that the plaintiff was entitled to recover, the defendants were to be defaulted ; otherwise the plaintiff was to be nonsuited.</p>