Volume 36 — Massachusetts Reports

<p>If goods in the possession of a lessee are sold, and a bill of parcels delivered to the vendee, and notice of the sale given to the lessee by the parties with a request that he will- hold the goods for the vendee, this constitutes a valid constructive delivery of such goods, as against a subsequently attaching creditor of the vendor, although the lessee do not consent so to hold them.</p> <p>But the mere delivery of the bill of parcels, without giving notice of the sale to the lessee, is not sufficient as against a subsequent attachment by a creditor of the vendor.</p>

<p>The plaintiff may give in evidence, under a count for money had and received, a promissory note due when the action was commenced, but which, at that time, he did not intend to include in the action.</p> <p>The plaintiff having made an agreement, at the time of commencing such action, that he would pay to the defendant, or to such of his creditors as he should designate, whatever sum should be recovered of one summoned in the action as a trustee, it was held, that the plaintiff was not, by such agreement, estopped, as against the defendant, to give such note in evidence, the benefit thus secured to the defendant not being coextensive with what might be recovered of him but with what might be recovei^d of the trustee.</p> <p>Held also, that the plaintiff was not, by the agreement, estopped to recover of the trustee, notwithstanding that, since the commencement of the suit, the demands" due to such creditors had been assigned to a bond fide purchaser for a valuable consideration, and the trustee liad paid over the funds in his hands in satisfaction of the same, and notwithstanding the plaintiff had commenced a subsequent action, declaring on the promissory note above mentioned, in which the defendant was arrested.</p>

<p>If one summoned as trustee states in his answers, that at the time of the service of the trustee process, he was indebted to the defendant, but that he has since recovered a judgment against the defendant and set off the debt due from himself in satisfaction of it, the judgment is not in itself conclusive against the plaintiff, but be may interrogate the trustee in respect to the circumstances under which it was recovered ; but taken in connexion with the answers it may be conclusive ; as if it appears by the answers, that it was recovered without fraud, and upon a demand existing before the service of the trustee process.</p> <p>In such a case the trustee has a right to apply the amount due from himself in satisfaction of the taxed costs of his judgment, as incident to the debt, although accruing after he was summoned as trustee, provided they were not unnecessarily incurred.</p>

<p>in tile cage of a lease strictly at will, an entry by the landlord upon the demised premises and notice given by him to the tenant to quit, are sufficient, without expelling the tenant, to put an end to the lease and revest the possession in the landlord.</p> <p>If a declaration in trespass contain two counts for the same trespass, and the defendant plead the general issue to both and a special plea in bar to one of them, and a verdict be found for him on the special plea, he is entitled to a verdict on the general issue likewise.</p> <p>In strictness, an opinion expressed by the judge upon a question of fact on trial before a jury, is not open to exception ; but if the party against whom it operates, yields to it and does not choose to argue against the weight of it, the Court may, in its discretion, grant a new trial, if the opinion was incorrect.</p>

<p>A minor son authorized by his father to go out to service and receive his earnings to his own use, may maintain an action for his wages against his employer, although such authority was not made known to the employer at the time when the minor entered into his service.</p> <p>If, in such case, no express contract be made with the employer, the law will imply a promise by him to the minor, and not to the father.</p>

Assumpsit on the common money counts. At the trial, before Putnam, J., it was testified, that Thomas Lamson, a lumber broker doing business in Boston, received from the plaintiff, who lived in the State of Maine, a consignment of lumber for sale; that Lamson sold a part of it to Emery & Perkins ; that he told the plaintiff he took no note on his own responsibility ; that the plaintiff directed him to take the note, of Emery & Perkins ; that they gave their note, payable in…

<p>On a case stated it appeared, that this was an action of assumpsit on a policy of insurance, dated March 7th, 1833, by which the defendants insured W. Stott, payable to the plaintiff in case of loss, $ 500 on his adventure on board the brig Nabob, at and from Boston to port or ports of discharge and loading east of the Cape of Good Hope, &c. and thence to her port of discharge in the United States. One of the perils insured against was “barratry of the master (unless the assured be owner of the vessel) and of the mariners.” Stott was first mate of the vessel, and his adventure, at the time of the larceny hereafter mentioned, consisted of $ 384 in specie, which were deposited in his trunk, then under the steerage steps.</p> <p>At the argument it was conceded, that the dollars were the proceeds of the mate’s outward adventure, for which the master signed a bill of lading ; and no distinct bill of lading was made for the dollars.</p> <p>The second mate would testify, that when the trunk was kept in the cabin, it was always kept locked; and that Stott was particular in this respect.</p> <p>On the 16th of September, 1833, the vessel was lying at anchor off Whampoa, for the purpose of disposing of her cargo, and on the afternoon of that day Stott’s trunk was opened and the money stolen by the cook and steward of the vessel, who immediately deserted. The theft was not discovered until the next morning. They were subsequently arrested, but no part of the money was recovered. At the time of the theft the cabin was painting, by reason of which the officers slept in the steerage, and were obliged to keep their trunks and baggage there. The steerage steps lead from the cabin to the deck.</p> <p>If upon this statement the Court should be of opinion that the plaintiff was entitled to recover, judgment was to be rendered for the sum named in the policy, &c. ; otherwise the plaintiff was to become nonsuit.</p>

<p>A partition of land made without notice to a parly who has attached on mesne process the interest of one of the tenants in common, is not binding upon such party, and he may therefore rightfully levy his execution as upon an estate in common.</p>

<p>The indorsee of a witnessed promissory note may maintain an action thereon, for bis own use, in the name of the payee, against the maker, after the expiration of six years from the time when the cause of action accrued, if such action is brought with the consent of the payee, or he makes no objection thereto.</p>

This was an action on the case, brought by the plaintiffs, merchants in Boston, against the defendant, who resided in Bangor, Maine, charging that the defendant falsely and fraudulently recommended another person as a trader in good credit and worthy to be intrusted with goods, by means of which the plaintiffs were induced to sell him goods on credit and thereby sustained damage.

<p>The St. 1834, c. 189, allowing a plaintiff to amend his writ by striking out the name of one or more of several defendants, is not unconstitutional as applied to actions then pending, because it affects the remedy only.</p> <p>In an action of assumpsit, brought in 1833, against two defendants, one of them was adjudged not to be liable, and the plaintiff", having obtained leave of court under St. 1834, c. 189, amended by striking his name out of the writ, and took judgment against the other, who had been arrested on the writ, and given bail. Held, that the bail was not discharged by reason of the amendment.</p>

<p>Debt upon a bond dated August 6th, 1833. Upon oyer it appeared, that the bond, after reciting that the plaintiff had purchased of the defendant 337 shares in the stock of the South Boston Iron Company, and had^paid to him a certain large sum of money, was conditioned, that the defendant should not, “ at any time hereafter, in his own name, or in the name of another, conduct, carry on, use or employ the art, trade or occupation of an iron founder or caster, or be concerned, interested, employed or engaged, directly or indirectly, in any, manner whatsoever, or under any pretence whatsoever, in the business of founding or casting of iron.”</p> <p>The defendant demurred generally to the declaration.</p>

<p>Assumpsit. The declaration contained the common money counts, for money paid, insimul computassent, &c. The action was brought by merchants transacting business in Boston under the firm of Emerson, Lamb & Harvey, against H. N. Baylies and M. L. Hart, merchants lately transacting business at Montpelier, Vermont, under the firm of Baylies & Hart. Hart however was not served with process.</p> <p>At the trial, before Shaw C. J., the controversy turned mainly on a charge under date of November 7th, 1834, of $ 1466‘50, for the amount of a note of hand given and after-wards surrendered under the circumstances stated below.</p> <p>In September 1833, there was a partnership in Boston under the firm of Emerson, Harvey & Co., composed of Curtis Emerson, Lamb and Harvey. Baylies & Hart then m^ide a purchase of that firm, for which Baylies, by inadvertence or otherwise, gave the note above mentioned in his individual name. Afterwards, and before November 1834, the partnership of Emerson, Harvey & Co. was dissolved and a new one formed, composed of Thomas Emerson, Lamb and Harvey, the plaintiffs. This firm was the agent of the former, to collect its debts and adjust its concerns. The firm of Baylies & Hart was dissolved in September 1834. In November 1834, Baylies and Hart being both at Boston, it was agreed that the note made by Baylies for the debt due from Baylies & Hart to Emerson, Harvey & Co., should.be taken up and cancelled, and the amount charged in account by the new firm of Emerson, Lamb & Harvey, to Baylies & Hart, and the same was accordingly credited to the firm of Emerson, Harvey & Co. as paid, and charged to Baylies & Hart in the books of Emerson, Lamb & Harvey.</p> <p>The defendant contended, that if the case thus stated for the plaintiffs were supported by evidence, there was no count in the declaration on which they could recover.</p> <p>The defendant offered in evidence a bond, dated September 26th, 1834, signed by Hart and by Thomas Emerson as obligors, to Baylies as obligee, conditioned to “ pay or cause to be paid or discharged, all debts and demands due and owing or which shall become due and owing by the said H. N. Bay-lies, either severally or jointly with the said M. L. Hart,” on account of the copartnership heretofore existing between Bay-lies & Hart, and to indemnify and save him harmless from all debts and liabilities on account of that copartnership.</p> <p>An opinion was expressed by the chief justice, that this bond operated by way of release ; that such release by one of the plaintiffs was binding on the firm ; and that it might be given in evidence under the general issue, and was a good defence to this action.</p> <p>The plaintiffs thereupon became nonsuit, subject to the opinion of the whole Court upon the questions of law above stated.</p>

<p>It is competent to this Court to grant a review in the case of a judgment on scire fadas against bail, and to reverse the judgment, and thereupon the bail may surrender their principal.</p>

<p>W testator having given certain annuities “ to be paid by his executor,” proceeds thus : I give to my wife die use and improvement of one third part of all my real and personal estate, during her natural life ; and I give the same at her decease to my children, to hold the same to them, their heirs and assigns. I give all the residue of my estate, real and personal, to ray children, to be equally divided between them, and to be distributed to them as they shall respectively arrive at the age of twenty-one- years, so far as the same can be done, consistently with the lien hereinafter created ; to hold to them and their heirs and assigns forever, subject to the payment of the legacies herein before given ; and I charge the residue of my estate, real and personal, herein bequeathed to my children, with the payment of the annuities aforesaid ; and I authorize my executor to receive the rents, income and interest of such residue, and out of the same to pay the annuities aforesaid, and to apply the whole or a part of the remainder of said rents to the support and education of my children until they respectively arrive at the age of twenty-one years, it was held> that the third part of the estate, given to the wile for life with remainder to the children, was not subject to the payment of the annuities. Held also, that the executor was to pay the annuities, and that he ought to retain at his disposal a sufficient fund to meet this charge, instead of leaving the annuitants to resort annually to the persons who might hold the different parcels of the real estate.</p> <p>Held also, that a surplus fund in the executor’s hands, which had accrued from the rents of the real estate, was a proper fund to be set apart to raise that portion of the annuities which was charged on the vents of the real estate.</p> <p>The Court refused to direct the executor to make an investment in an annuity office, to enable him to make a settlement of the estate, deeming it more proper that he should remain a trustee for the payment of the annuities ; but it was decreed that he should set apart a certain sum, sufficient to raise the annuities, one half of it to be taken from the personal, and the other half from the rents of the real estate, by which means he would be enabled to make a distribution of all the rest of the estate.</p>

Assumpsit on a contract to slaughter twenty-seven head of cattle, and to pack and salt the beef, in a careful and skilful manner. At the trial, before Morton J., it appeared, that Jonathan Hastings, a deputy inspector and packer of beef, was employed by the defendant to pack and salt the beef in question ; but that it did not keep sweet, and was sold with the consent of the defendant as damaged.

<p>Where the members of an unincorporated volunteer company in the militia subscribed certain constitutional articles, whereby they severally promised to pay to the treasurer of the company for the time being all fines and assessments which should become due from them to the treasurer or to the company, it was held, that an action by the treasurer against a member, to recover an assessment, could not be sustained, because there was no valid consideration for the defendant’s promise, it not appearing that any money had been advanced or expenses incurred on the faith of such promise, and because, as the defendant was jointly interested in the funds of the company, the action involved the legal absurdity of a party’s suing himself.</p> <p>Held also, that fines incurred under the constitutional articles, (being different from the fines imposed by the militia laws,) stood on no better footing than the assessments, and could not be recovered by action.</p>

Assumpsit on a policy of insurance, dated October 21st, 1824, by which the defendants caused Smith & Stewardson of Philadelphia, for account of the plaintiff, who lived in Charleston, South Carolina, to be assured $ 11,000 on the steamboat Henry Schultz, valued at $ 22,000, for ten months, commencing on the 9th of the same October. The premium note was signed by Smith & Stewardson, and the policy was made payable to them in case of loss.

<p>Assumpsit. The plaintiff declared upon a note of hand, dated November 3d, 1831, whereby the defendant and Charles Brown jointly and severally promised to pay Nathaniel Brown or order $ 1000, on demand with interest; which note, it was averred, was indorsed on the same day by Nathaniel Brown to the plaintiff. The declaration also contained the common money counts. The defendant pleaded the general issue. The action was commenced on the 24th of December, 1833.</p> <p>At the trial, before Morton J., the plaintiff produced the note above described. The defendant admitted his own signature and that of Charles Brown to be genuine, but asserted that the signature of Nathaniel Brown on the back of the note was a forgery. The plaintiff objected, that under the present Rules of the Court, (Rule 53,) tbe defendant was precluded from this inquiry, as he had not filed a written notice that this signature would be disputed ; but the objection was overruled, on the ground that the genuineness of this signature had been contested in a former trial.</p> <p>The plaintiff then offered the note as evidence under the money counts, and insisted that as it purported to be uttered by the defendant as genuine, it was evidence against him under the money counts, even if the signature of the indorser were forged ; but this position was overruled, and the judge required the plaintiff to prove the signature of the indorser.</p> <p>The plaintiff then called several witnesses who testified in favor of the genuineness of the signature of the indorser. From their testimony it also appeared, that Charles Brown absconded about the 6th of October, 1833, under the imputation of having committed numerous forgeries; that Nathaniel used to transact his business at Charles’s counting room ; and that Nathaniel had deceased.</p> <p>Thomas J. Shelton testified, that he first saw this note on the day of its date ; that Noah Edwards, a broker, had previously called on him to negotiate a loan, and proposed the names of Charles and Nathaniel Brown, which the witness declined ; that Edwards then proposed in addition the name of Underwood as a promiser, upon which the witness agreed to make the loan ; that Edwards afterwards brought him this note, for which he paid Edwards $ 1000, with the understanding that he was to have his money again with interest on two or three days notice and that he was to look to Edwards ; that he subsequently demanded the money of Edwards, and Edwards said he would notify C. Brown ; that afterwards Edwards said he had seen C. Brown, and that it was not convenient for him (Brown) to pay the note at the time ; that the witness thereupon told Edwards he must hold him (Edwards) to his bargain, at any rate ; that Edwards thereupon gave him the principal and interest due on the note, and took the note himself; and that the witness understood that the money he received was Edwards’s own money and not C. Brown’s, and that Edwards became the lender on the note.</p> <p>The plaintiff again insisted, that upon this testimony the note was evidence for the holder under the money counts, whether Nathaniel Brown’s signature was genuine or not; but the position was overruled.</p> <p>'-The defendant--then read the deposition of Noah Edwards, subject to the plaintiff’s objection noted therein. The plaintiff had formerly taken the deposition of Edwards for this actian, and the defendant had procured a copy of it from the magistrate before whom it was taken. Subsequently the defendant took the deposition in question, of the same deponent, and by way of interrogatory, embodied therein the copy of the former deposition; and for this cause the deposition read in evidence was objected to by the plaintiff.</p> <p>The deposition of Edwards coincided with the testimony of Shelton. He stated further, that the note remained a considerable time in his hands unpaid, until Charles Brown absconded, and Nathaniel Brown died ; and that it was negotiated on a settlement by Edwards with the plaintiff, and passed to the plaintiff for the face of it.</p> <p>The jury returned a verdict for the defendant, and the plaintiff moved for a new trial, on account of the rulings of the judge, and because the verdict was against the evidence.</p>

<p>Br the answer of the trustee it appears, that he had received, for the use of the defendants, a sum of money, and that after deducting his own demands, there remained a balance due from him ; but that, before the service of this writ, the defendants, who lived in the State of Maine, made an assignment of such balance to trustees, for the use of certain creditors in Maine and the British Provinces, and of one creditor in Massachusetts ; that these creditors, having demands against the assignors to an amount exceeding the sum assigned, had become parties to the assignment; and that the respondent had had notice of such assignment.</p> <p>The plaintiffs and the respondent were citizens of this State.</p> <p>The case was argued in writing.</p>

<p>Although there is no record of the laying out of any highway in Nantucket, yet there is nothing in the tenure of the lands (a large portion being held by the proprietors of common and undivided lands on the island) to prevent the public from acquiring highways over them by grant or laying out under statute; and in fact highways do exist there, established by long continued use and enjoyment.</p>

Assumpsit to recover back a sum of money alleged to have been overpaid by the plaintiff to the defendant. The plaintiff died before the trial, and the action was prosecuted by his administratrix.

<p>A declaration combining in one count all the common money counts, is good.</p> <p>Where the acceptor of a bill of exchange for the accommodation of the drawer, paid the bill and brought his action against the drawer to recover an indemnity, declaring on tlie general money counts only, and attached the drawer’s property, it was considered, that although the specific ground of the action did not appear on the writ, yet that the attachment was valid against a subsequent attaching creditor.</p> <p>A creditor holding collateral security may nevertheless bring an action upon his demand and attach property of the debtor to respond the judgment.</p> <p>The acceptor of a bill of exchange for the accommodation of the drawer, may pay it on the last day of grace before the commencement of business hours, and forthwith bring his action against the drawer to recover an indemnity.</p> <p>A payment of a bill by such acceptor before the last day of grace, will take effect as a payment at the commencement of that day, as against the drawer.</p>

<p>In an indictment on St, 1804, c, 120, § 2, for having in possession ten or more counterfeit bank bills, it is necessary to aver that the party accused had them in his possession at the same time s an averment that he had them in his possession on the same day, is not sufficient.</p>

Scire Facias issued by the Court of Common Pleas, upon a recognizance. At the November term 1835, of the Supreme Judicial Court, the defendant craved oyer of the supposed recogni zance and of the condition thereof, and of the indictment and proceedings mentioned in the writ of scire facias, and the following papers were read to him : — 1.

<p>A quay in the city of Boston, on which the warehouses of the defendant and others fronted to the south, had been used for more than sixty years for all the usual purposes of a street, but there was no record of its having been laid out as a street. The mayor and aldermen then duly laid out and recorded a street, and afterwards staked out a line in continuation of the north side of it, and passing at some distance in front of the warehouses, and paved a space on the south of such line, of the same width with the street so laid out, and treated it in all respects like the streets in the city, but it was never laid out and recorded as a street; and the city, claiming the fee in the land between the line staked out ami the defendant’s warehouse, sold this land to the defendant, and the defendant built a new warehouse thereon up to such line. It was held, that these facts were sufficient to prove a highway by prescription over the quay, and that they vvere not sufficient to prove that such highway had been legally discontinued over the land on which the defendant erected his new warehouse.</p> <p>The defendant having erected a warehouse projecting several feet into the street, and beyond the plaintiff’s warehouse, standing near on the line of the street, whereby the plaintiff’s warehouse was obscured from the view of passengers and travel was diverted to a distance from it, and in consequence it was rendered less eligible as a place of business and the plaintiff was obliged to reduce the rent, it was held, that the plaintiff had suffered a special damage from the public nuisance, which entitled him to an action against the defendant.</p>

Bill in equity against Charles Russell of New Bedford, surviving partner of the house of Charles Russell & Son, the Bedford Commercial bank, Merchants’ bank, Marine bank and Mechanics’ bank, all in New Bedford, and the respective cashiers of these banks.

Assumpsit for goods sold and delivered. At the trial, before Wilde J., the defendant, in order to prove that the sale was made upon a credit of six months, which had not expired when the action was commenced, offered in evidence certain promissory notes payable in six months from date, made by him and given to the plaintiff, or to Tibbets 51 Brodhead, a firm of which the plaintiff was a member, together with certain bills of parcels, purporting to be of goods sold by that…

<p>A decree of the Probate Court directing the distributive share of an heir who was indebted to the estate, to be paid over by the administrator, to the other heirs, on the ground of such indebtedness, is void ; and the non-compliance with it, by the administrator, is therefore not a breach of his bond.</p>

This was a complaint to recover indemnity for damage occasioned by the widening of a street in Boston.

<p>The o**endant having from time to tjme deposited money in and drawn checks upon a bank, under a fictitious name, at length, for the purpose of defrauding the bank, drew such a check when he had no money deposited, and presented it himself, and the bank paid him the amount of it; whereupon he was indicted under St. 1816, c. 136, against obtaining money by false pretences with intent to defraud. Held, that the assumption of a fictitious name was a false pretence, within the meaning of the statute, but that as it appeared, that it had no influence in inducing the bank to pay the money, proof of it would not support the indictment.</p> <p>Held also, that merely opening and keeping an account in the bank, though as part of a stratagem by which the defendant intended to practice the fraud, was not a false pretence, within the statute.</p> <p>Held also, that the mere drawing and presenting the check and receiving the money upon it from the bank, were not a false pretence, within the statute. Aliter, it seems, if the drawer of a check on a bank, passes it to a third person, when he has no funds nor credit in the bank, and knows that the check will not be paid.</p>

<p>Assumpsit on an account for wood and coal sold and delivered at various times to the defendant. Trial before Wilde J.</p> <p>To prove the delivery of the items of the account, the following testimony was offered.</p> <p>The wharfingers were called who were supposed to have sent the fuel to the defendant by the plaintiff’s order. They testified, that they found on their books these charges, in their handwriting, to Chamberlain, for fuel delivered by his order to Carter ; that they did send to Carter all the fuel charged ; that Chamberlain ordered them to send to Carter all the articles charged ; and that they directed their carmen to carry the same to him. On cross examination, they testified, that they had no special recollection of the instances, but that they never entered such charges on their books until the fuel was laden and sent out, the general custom being to have an order slate, on which orders were written when received, but the charge was not made on the books until the fuel was sent; that they were always very careful in giving exact directions to their carmen, and seldom found any mistake made as to the delivery ; that when one was made, they usually heard of it at once, and rectified it; and they had no doubt that the fuel in the present case was all duly carried and delivered.</p> <p>One of these witnesses stated, that he had once or twice, in passing by Carter’s house, seen fuel lying there, which he had sent there by order of Chamberlain. Another of them, that he carried his fuel himself, and delivered it at Carter’s house.</p> <p>It was then objected by the defendant, that the carmen themselves should be called. The wharfingers were then asked where the men were, who during that period had been in their employ. They stated that one was dead, some still in their employ, and some in the city not in their employ, and of some, they did not know where they were. The next morning all of the carmen whose places of residence were stated by the former witnesses, were examined. Some of them testified, that they did remember taking fuel to Carter’s house by order of their employers ; all said that they always carried all that they were ordered to carry, but how much or when, they could not say, having no recollection of any particular instances, and verifying no particular item in the account filed. They also testified, that they always received express directions from their employers, before they left the yard with wood or coal for their customers, and that they always complied with these directions.</p> <p>No servant of the defendant was called by the plaintiff, and no evidence offered that any such servant could not be found. No evidence was offered of any endeavour made on the part of the plaintiff, before the commencement of the trial, to procure the testimony of the carmen.</p> <p>The plaintiff called two witnesses, who worked in his shop, who testified, that Carter came to the shop, and requested the plaintiff to send him wood and coal whenever his servants called ; that Carter frequently came and ordered fuel himself; and that his servants also came and ordered it. And a wharfinger swore, that in one instance, when it was delayed, a servant of Carter came and inquired into the delay and hastened the delivery.</p> <p>It was objected by the defendant, that no part of this evidence, excepting what related to the loads carried by the witness himself, who charged them in his books, ought to be received ; that the carmen themselves, and the servants of the defendant, should be called, or it should appear that due diligence had beer, used to obtain the testimony of all the carmen employed, and that all had been obtained who could be, and thaf the servants of Carter, spoken of, should have been called.</p> <p>These objections were overruled, and a verdict rendered for the amount of all the charges or bills sworn to by the wharfingers, with interest from the date of the writ.</p> <p>The defendant moved for a new trial, on the ground of misdirection of the judge.</p>

<p>Under St. 1820, c. 79, an action may be brought from the Court of Common Pleas into this Court by exceptions, notwithstanding the party excepting might have appealed.</p> <p>An averment of a lost grant from die owner of a beach to the inhabitants of a town, in their corporate capacity, to die use of all the inhabitants thereof, to take seaweed for manuring their lands, is not supported by. evidence, that individual inhabitants of the town had been accustomed, from a very early period of time, to take sea-weed from such beach for that purpose.</p> <p>The rule of law established in tiiis Commonwealth, that in all "creeks, coves and other places upon salt water, where the sea ebbs and flows, the proprietor of the upland owns die flats to low-water mark, or to the distance of one hundred rods if the sea ebbs further than one hundred rods, applies to the shores of die open sea.</p>

<p>If a vessel, in the course of her voyage, put into a port where repairs can be made, and afterwards sail therefrom with a defect in her bottom, produced during the voyage by the perils of the seas, and which causes her to founder, the insurers are liable for the loss, unless the captain had reasonable cause to suspect the existence of the defect when the vessel was in such port, or had reasonable cause to believe that she could not proceed safely home without having the same repaired.</p>

<p>Trespass de bonis asportatis. The defendant, who was a sheriff, justified on the ground that the goods were rightfully taken on execution as the property of Noah Worcester. Trial before Wilde J.</p> <p>The plaintiff claimed the property as assignee of a mortgage made by Worcester to Timothy H. Carter, dat.ed February 5th, and recorded February 6th, 1834, pursuant to St. 1832, c. 157, and transferred by Carter to the plaintiff by an assignment dated March 16th, and recorded April 9th, 1834. The mortgage was made as collateral security for a note from Worcester to Carter, payable on the 1st of April, 1834.</p> <p>The plaintiff produced a note, which he contended, and which Worcester (who was a witness on the part of the defendant) testified, was the note secured by the mortgage.</p> <p>The defendant, upon the opening of his case, contended that it was necessary to the validity of a mortgage of personal property, duly recorded under the statute, but which had become absolute, that possession of the property should be taken and held by the mortgagee or his representative. But the judge ruled that such possession was not necessary ; that the neglect to take possession was only evidence, on which the jury were to judge whether the mortgage was or was not bona fide, valid and subsisting.</p> <p>After the plaintiff had closed his case, the defendant called Worcester, to prove that the chattels mortgaged were once partnership property of a firm consisting of Horatio Carter, Worcester and Oscar C. B. Carter, and continued so at the time when the mortgage was made ; and also to prove that the mortgage to Carter was fraudulent as against the creditors oi Worcester, even if the chattels were, the sole property of Worcester. The defendant examined Worcester on these points and closed his case.</p> <p>The plaintiff then called T. H. Carter, the mortgagee, to counteract the testimony of Worcester. The defendant objected that Carter was incompetent to testify, on the ground of interest. The plaintiff then executed and delivered a release to Carter of a particular note therein described, as collateral security for which the note and mortgage given by Worcester were supposed to have been assigned to the plaintiff, but reserving the plaintiff’s right to the property in controversy. He produced at the same time a general assignment made by T. H. Carter for the benefit of his creditors ; and Carter executed a release to his assignees, of any surplus that might be coming to him by the result of this action. To the sufficiency of these releases the defendant made no objection.</p> <p>On his cross-examination, Carter expressed some doubts whether the note secured by the mortgage was left with the plaintiff to secure the note mentioned in the plaintiff’s release to the witness. The defendant thereupon again objected to the competency of the witness, and the plaintiff then executed and delivered another release. The defendant’s counsel examined this release, and no objection was made to its sufficiency or operation ; and the examination of the witness was continued, no question being saved as to his admissibility. All this was on Friday. On Saturday the defendant proposed to give evidence of confessions or declarations of the plaintiff, tho the suit .was prosecuted for the benefit of T. H. Carter. It was objected by the plaintiff, that the defendant had closed his case, and in this stage of the cause ought not to go into such evi dence ; but the defendant urged that the object was to impeach T. H. Carter, and the judge admitted it. It came from O. C B. Carter and Worcester. The plaintiff thereupon, on the same day, recalled T. H. Carter, and examined him directly, to know if he had any interest, and he denied that he had any The defendant made no objection to his being so examined, and cross-examined him ; and he was dismissed from the stand. On Monday the plaintiff called the same witness to testify as to what he owed the plaintiff’ and what amount of security the plaintiff had in his hands. The defendant then objected for the first time, that the witness was incompetent by reason of the plaintiff’s admissions concerning his interest. But the judge admitted him, and he testified solely in respect to the amount which he owed the plaintiff and the security which the plaintiff held.</p> <p>It appeared that most of the property in controversy had once belonged to the firm composed of H. Carter, Worcester and O. C. B. Carter. It was contended by the plaintiff, and evidence was offered by him to show, that on April 1st, 1833, that firm was dissolved by the consent of all the partners ; that it was then agreed, in good faith, by all the partners, that Worcester and O. C. B. Carter should each receive a certain amount of monthly wages for the time they had been in the firm, in lieu and in full of their earnings and shares of the partnership effects, and that H. Carter should have the partnership property and pay the debts.</p> <p>It was proved, that under the agreement at the dissolution, a part of the partnership property was, by order of H. Carter, delivered over to the firm of Carter, Andrews & Co., of which firm H. Carter was a member, to be by them applied to the payment of the debts of the firm dissolved as above mentioned. The part so delivered was livery stable stock, a part of the property distinct from the rest, and not here ir. controversy. The residue of the partnership property, consisting of the part here in controversy, was left in Worcester’s possession, and so remained to the time of the execution of the mortgage. The plaintiff offered in evidence a bill of sale, of April 21st, 1833, from H. Carter to T. H. Carter, and a bill of sale, of April 1st, 1833, from T. H. Carter to Worcester, and a note of that date from Worcester to T. H. Carter. The last mentioned bill of sale and note were executed in October 1833, and dated back; and at the time of their execution Worcester was in the sole possession of the property described in this bill of sale.</p> <p>The defendant contended that a delivery to H. Carter was necessary, to pass the partnership property ; and the judge so ruled. But he instructed the jury that a delivery of part for all was sufficient ; that they were to consider whether the delivery of part of the partnership property to Carter, Andrews & Co. was not a delivery of part for all; that to make it such,, no formal words were necessary, it was enough if the jury believed, on the evidence, that the delivery of part was intended as a delivery of the whole and to complete the contract, and as evincing that nothing more was to be done, to precede the closing of the transaction.</p> <p>The defendant requested the judge to charge, that a delivery to T. H. Carter and also to Worcester, was necessary to be shown. But the jury were instructed, that if they found the sale from the firm to H. Carter was valid, the sale from him to T. H. Carter would be good as between the parties, and as to strangers, without delivery.</p> <p>It was argued by the defendant, that Worcester’s testimony proved that the mortgage was given with a view to prevent the property from being taken for debts of Carter, Andrews & Co., on whose notes Worcester was liable as indorser ; that at the time of the execution of the mortgage, T. H. Carter agreed that Worcester should remain in possession of the mortgaged property, and should sell, exchange, trade upon and otherwise use it. Worcester paid over to T. H. Carter a sum of money ; he also sold five cows, one yoke of oxen, and a wagon, the proceeds of which he applied to his own use, and he used up, in his farming, the hay, oats, manure, and some other articles, mentioned in the mortgage.</p> <p>The plaintiff contended, upon the testimony of T. H. Carter, that the agreement was, that Worcester should retain the possession, and should sell and exchange the property so far as the prudent administration of the property should render it necessary", but that whenever he sold, he was to pay over the proceeds to Carter or substitute equivalent security.</p> <p>The judge instructed the jury, that the retaining possession of the mortgaged property by the mortgagor by agreement with the mortgagee,- and the uses of the property which he continued to have by agreement with the mortgagee, were evidence of fraud; and if the jury believed, on all the evidence to that point, that the mortgage was made to cover property for the sake of defrauding creditors, it was ■ void. The judge also charged, that if this fraudulent intent were part of the intent, a part of the purpose being to secure an honest debt to T. H. Carter, still the mortgage would- be void ; but that if the real and sole intent of the act was to prefer and secure a debt to Carter, then the mortgage was not fraudulent and void in law.</p> <p>Tt was objected by the defendant, that there was not evidence that the mortgage was assigned and actually delivered to the plaintiff until after the 1st of April, 1834. The judge said that the plaintiff might be a bona fide holder for a valuable consideration, notwithstanding he was not proved to have taken the assignment until after that day.</p> <p>It was in evidence, that the note of Worcester had been passed to the plaintiff as collateral security, though not actually indorsed, before the execution of the mortgage, and T. H. Carter testified that when he so passed the note, he told the plaintiff that he expected a mortgage from Worcester to secure it and he would transfer the mortgage to the plaintiff as soon as he should receive it.</p> <p>The judge also ruled, that a formal delivery of the property to the assignee of the mortgage, was not necessary to enable him to maintain this action.</p> <p>There was no evidence that the plaintiff had knowledge of any agreement between T. H. Carter and Worcester, concerning the possession of the property.</p> <p>The judge instructed the jury, that if the plaintiff took the note and mortgage, believing he had security enough without them, merely to accommodate Carter, and not as security, he would have no higher or other title than Carter ; but that if he took them, though merely as security, without notice, he would be a bona fide holder for a valuable consideration.</p> <p>The jury returned a verdict for the plaintiff; and in answer to questions put to them by the judge, they replied that they found the mortgage and the assignment both to be valid.</p>

<p>If a druggist prepares a certain kind of medicine and designates it by the name of a superior medicine invented, prepared and sold by the plaintiff, and sells it as and for the medicine prepared by the plaintiff, the plaintiff may maintain an action against him, without proof of special damage.</p> <p>Where certain medicines are designated by the name of the inventor, as a generic term, descriptive of a kind or class, the inventor is not entitled io the exclusive , right of compounding or vending them, unless he has obtained a patent therefor; and if another person prepares such medicines of an inferior quality, and sells thorn, and by this means all medicines of that class are brought into disrepute, such inventor can maintain no action for any loss sustained by him in consequence thereof, unless they are sold as and for medicines prepared by him.</p>

Assumpsit, upon an account annexed, for goods sold and delivered. At the trial, before Morton J., the plaintiff proved the de livery of the goods charged in the account, and there rested his case. The defence was, that the goods were sold on a credit of six months, which had not expired when the action was com menced.

<p>The acceptor of a bill of exchange for the honor of the drawer, cannot maintain an action thereon against him, without proof of its presentment to the drawee, and non-acceptance or non-payment by him, and notice thereof to the drawer.</p> <p>The agent in Boston, of the plaintiffs, who were bankers in London, wrote to the defendant in Havana, stating that F. & Co. wished to have funds drawn from London in anticipation of a shipment to be made for their account at Havana,and authorizing the defendant to draw on the plaintiffs, it being “ understood, that in making the shipment, you will consign the property shipped under this credit, to the order of” the plaintiffs. The defendant accordingly drew on the plaintiffs, but, upon the failure of F. & Co., applied the proceeds of the bills to the credit of F. & Co. in their general account with him. It was held, that the defendant was bound to comply with the conditions of the letter of credit, in regard to the disposition of such proceeds ; and that the plaintiffs were entitled to recover of him the amount thereof, in an action for money had and received, without any previous special demantj.</p> <p>The declarations of an agent while acting and speaking for the principal and within the scope of his authority, are admissible in evidence against the principal, notwithstanding he is a competent witness.</p> <p>The possession of a bill of exchange by the acceptor, after it has been in circulation, is prima fade evidence that it has been paid by him.</p>

<p>Replevin to recover the possession of a Fourdrinier paper machine.</p> <p>At the trial,'before Wilde J., it appeared, that the plaintiff, having purchased the machine in an unfinished state, entered into a contract with James Nesbit, by which it was stipulated that Nesbit should finish the machine for $ 950, of which sum $ 200 were to be paid when the machine should be finished and delivered, and the residue in six months afterwards, and that the machine should be completed in ten weeks from the date of the contract.</p> <p>Nesbit, being called as a witness by the plaintiff, testified, that after this contract was made, he called upon the defendant and disclosed to him the terms of the contract with the plaintiff, and, without the consent or knowledge of the plaintiff, agreed with the defendant, that he should finish the machine , that the defendant accordingly took it into his shop for this purpose, and in the progress of the work, which was laid out by Nesbit, furnished some materials for it ; and that in July 1836, the machine was taken from the defendant’s possession by the writ in this case.</p> <p>It further appeared, that an agent of the plaintiff came frequently to look at the machine while it was in the defendant’s workshop, and occasionally spoke to him respecting it.</p> <p>The judge instructed the jury, that if they were satisfied that the defendant took the machine into his possession with a knowledge of the contract between Nesbit and the plaintiff, he did not acquire any lien, by reason of the materials and labor furnished and bestowed upon it by him, which would entitle him to hold the machine against the claims of the plaintiff.</p> <p>The jury returned a verdict for the plaintiff.</p> <p>The defendant excepted to these instructions.</p>

<p>Where a bill in equity makes specific charges of fraud, and the answer contains only a general denial of all fraud, the charges are not to be taken to be true, and the defendant estopped to disprove them, but the plaintiff should except to the answer for want of particularity.</p> <p>In order to entitle a creditor to impeach a conveyance of land as fraudulent when made without a valuable consideration or on a secret trust, it is not necessary that the grantor should have been actually insolvent at the time of the conveyance; it is sufficient if he was deeply indebted.</p> <p>Under St, 13 Miz, c. 5, a conveyance made upon a secret trust and with frauduku intent, may be avoided as well by subsequent as by previous creditors.</p> <p>If a mortgage be made of two parcels of land as security for the payment of a sum of money, and the right in equity to redeem one parcel be transferred to A. and the right to redeem the other to B., and the mortgagee afterwards release A.’s parcel from the mortgage, B., on redeeming, cannot compel A. to contribute, but he is entitled to have an abatement of such a proportion of the sum due on the mortgage as the value of A.’s parcel bore, at the time of the execution of the mortgage, to the value of both parcels.</p>

Debt upon a bond given to the plaintiffs, in June 1836, by Woodhouse L. Wheeler, as principal, and Daniel Draper, as surety, and conditioned, that the principal should continue a true prisoner, within the limits of the prison, until lawfully discharged.

Writ of right. The tenant having deceased, the demand-ant moved that certain persons to whom the tenant had devised the demanded premises, might be summoned in to defend the suit. Cooke, for the demandant, cited Revised Stat. c. 119, § 13 ; c. 101, § 5 ; c. 93, § 19, 20, 24 ; c. 81, § 9.

<p>Assumpsit. At the trial, before Wilde J., it appeared, that the plaintiffs, to wit, Z. Jellison & Co. and Little & Haskell, were owners of the brig Ellsworth; that the vessel had been always employed by Jellison & Co. on the joint account of the owners; that in the summer of 1835, she was sent by the plaintiffs to Rio de Janeiro for a cargo of coffee, to be shipped to New Orleans ; that before her arrival at New Orleans, it was agreed between Jellison & Co. and Dimmock & Lafonta, who were merchants and partners, in New Orleans, that the cargo should be consigned to them for sale, and that they should be interested in the profit or loss on the cargo to the amount of one third ; that the coffee was accordingly sold by them, and that afterwards Dimmock died ; and that in July or August 1836, Lafonta, the defendant, being in Boston, the accounts of the voyage were examined by him and Jellison together;,and the balance due from Dimmock & Lafonta finally ascertained to be the sum of $ 1374-14.</p> <p>. 'It also appeared, that, at the time of the adjustment of the accounts, the defendant inquired of Jellison in what manner he would have the balance paid, and offered to pay it by a draft on New Orleans ; that this offer was declined, and cash or a draft at short sight on a house in Boston required ; that the defendant then stated, that he was about to negotiate some exchange on New Orleans, and that he would make the amount large enough to cover such balance and would then pay it; and that, on the 30th of August, 1836, the defendant wrote to Jellison, offering to pay the balance at New Orleans.</p> <p>It further appeared, that all the advances for the purchase of the cargo and for the navigation of the ship were made by Jellison & Co., with the exception of what was paid by Dim-mock & Lafonta; and that the other owners had settled no account of this voyage with Jellison & Co., at the time when this action was commenced.</p> <p>The defendant contended, upon these facts, that the action could not be maintained.</p> <p>As there were no facts in dispute between the parties, the cause was taken from the jury and submitted to the Court upon the questions of law arising therein.</p>

<p>. Trespass. The defendant was described in the writ as of Duxbury, but then commorant in Boston. The officer’s return on the writ was dated on January 16th, 1836, and set forth, that he had attached property of the defendant, and had left a summons “ for him at his last and usual place of abode known to me in this city.”</p> <p>On the second day of the April term 1836 of the Court of Common Pleas, the defendant, by his counsel, appeared and moved the court to dismiss the action, on the ground that there had not been a sufficient and legal service of the writ upon him, it being stated in the motion, that he appeared for that purpose solely.</p> <p>This motion was overruled, and the action was thereupon demurred, and entered in this Court at the November term next ensuing. On the first day of the term, the defendant moved the Court to dismiss the action, because there had been no legal service of the writ, and because the Common Pleas overruled the same motion when made in that court, the defendant declaring that he appeared for the purpose of making such motion.</p>

<p>The owner of land having laid out a court over it, called Central court, and having laid out house-lots on the court and erected a house on each of two adjoining lots, conveyed one of these two tenements, describing it as 6< a brick house and the land under and adjoining the same, being No. 4 in Central court,” the westerly boundary being (t on a line with the front of said house,” “ together with the land in front of said house under the stone steps ; with a right to pass and repass on foot and with horses and carriages through said Central court at all times, said grantee to pay the expense of keeping the side-walk in front of said house in good repair.” At the time of the grant the side-walk was paved with brick. The shed of the grantor’s other house formed one side of it, but he had no door in the shed opening upon it. At the northerly side of the lot conveyed was a strip of land not covered by the grantee’s house, used as a passage, from which a gate opened upon the side-walk, and connecting the kitchen and back yard with Central court, over the side-walk. Another gate opened upon the side-walk from under the front steps of the house. No access could be had to either of the gates without passing over some part of the side-walk. It was held, that whether the side-walk was or was not a part of Central court, the grantee was entitled to a right of way over it, and that the grant was of a way limited and defined by the grantee’s house on one side and the grantor’s shed on the other, and not of a convenient way to be subsequently defined.</p>

<p>Where one not a promisee nor indorsee, puts his name in blank on the back of a note, before it is delivered to the promisee, he is an original promisor and surety, and if he pays the note, he must pursue his remedy as surety, and not as indorser, against the other promisors.</p> <p>Where a note was paid by one who had thus put his name on the back of it, and he thereupon brought his action for money paid by him as indorser, against the principal and another surety jointly, and, after a trial, the action was not supported on that ground, he was not allowed to discontinue against the principal, and proceed as a surety a gainst his cosurety for contribution.</p> <p>The fact that such party put his name on the back of the note at the request of the principal, and without the knowledge of a surety who had signed on the face of the note, was held not to affect his right to recover contribution of such surety.</p> <p>In an action on a promissory note, against principal and surety, the principal, after being defaulted, is a competent witness to disprove the surety’s liability.</p> <p>On the question of contribution between cosureties, partners who signed in the partnership name are to be regarded as but one surety.</p> <p>Where a party entitled to freedom from arrest while returning from court, went to a place out of the direct route to his home, for the purpose of attending the funeral of his son, it was held, that he had forfeited his privilege.</p> <p>An action lies against a cosurety for contribution, without a previous notice of the payment by the plaintiff and a special demand.</p>

<p>t nííer die St. 1828, c. 55, § 2, which declares, that upon a divorce a mensa et thoro9 tne chases in action of the wife, not reduced to possession, shall remain her sole property, provided that the act shall not be construed to render void any attachment or seizure on execution made to secure any debt due from the husband, before the filing of the libel, it was held) that the mere assignment by the husband, for a valuable consideration, of the wife’s chose in action in the hands of her guardian, with notice thereof to the guardian, made before the filing of the libel, was not valid, as against the wife, after a decree of divorce, it not being equivalent to a reduction to possession by the husband, nor within the equity of the proviso.</p>

Assumpsit. At the trial, before Shaw C. J., the defendants relied upon a settlement made on the 29th of October, 1833, as a defence, and produced in evidence a receipt of that date for the sum of $ 5 00, given to them by the plaintiff, in full of all demands. A similar receipt of the same date was given by the defendants to the plaintiff.

Debt upon a bond in the penal sum of $400, executed by Nichols, one of the defendants, as principal, and Selkirk, the other defendant, as surety. The bond was conditioned, that Nichols should fully perform an agreement in writing, made on the 5th of October, 1835, by which he contracted to erect a dwellinghouse for the plaintiff and on the plaintiff’s land.

Assumpsit. The defendant filed in set-off an account for labor and materials bestowed and used by him in building a house for the plaintiff, in pursuance of a special contract in writing, not fully performed. The only question was, whether the account in set-off could be sustained by the evidence offered, the facts being the same as in the preceding case of Jldams v. Nichols et al. Shaw C. J. ruled that the evidence was not competent to support the account.

This was an appeal from a judgment of the Common Pleas, discharging the trustees upon their answers.

This was an action of qui tam, under St. 1822, c. 87, § 6. The jury returned a special verdict setting forth, that on or about the 27th of March, 1824, the defendant,, who was a constable of Williamstown, acting in the capacity of auctioneer, but without being licensed as such, and under color of his office as constable, sold a quantity of personal property by auction, for the purpose, as was pretended, of satisfying an execution with the proceeds of the sale ; but that, in…

<p>Where an aggregate bbdy is empowered to grant an authority or' privilege, as, for instance, a collegiate degree, and the mode of making such grant or proving the same, is not specially pointed out, a vote by such body that the authority or privilege be granted, is an execution of the power ; and a duly authenticated copy of the vote, sufficient proof of it.</p> <p>The St. 1817, c. 131, § 3, [Revised Stat. c. 22, § 8,] requiring every person licensed to practise physic and surgery, to deposit a copy of the license with the clerk of the town in which he may reside, does not apply to a person, who has received the degree of doctor of medicine.</p> <p>The St. 1823, c. 136, providing that any person who shall be graduated a doctor in medicine in the Berkshire Medical Institution, by the authority of Williams College, shall be entitled to all the rights and privileges granted to the medical graduates of Harvard College, does not apply to one who has only received the honorary degree of doctor of medicine from Williams College without having been educated at the Berkshire Medical Institution.</p>

Assumpsit. By an agreed statement of facts it appeared, that Horace Williams, being the owner of a farm, which be had mortgaged to the Massachusetts Hospital Life Insurance Company for the sum of $ 300, conveyed the same, in March 1833, by deed of release, to the defendant, it being agreed, that the defendant should pay the sum of $ 300 to the mortgagees, and took back from him a lease of the farm for six years and also a bond conditioned, among other things, for a…

<p>Assumpsit for expenses incurred in the support of Bradford Pollard, a minor son of Abner Pollard, whose settlement was alleged to be in Clarksburgh.</p> <p>On a case stated, it appeared, that on the 12th of February, 1829, one Carter conveyed an absolute estate in fee, in about an acre of land in Clarksburgh, to Abner, and that Abner, on the same day, mortgaged the land to Edward Richmond to secure the payment of a note of even date with the mortgage, for the sum of $ 84-32. On the 10th of June, 1833, Richmond , . . r . . . .... brought an action oi ejectment on his mortgage, m which actian Abner was defaulted, but no execution was issued; and after judgment was rendered, Abner agreed with Richmond, verbally, to pay him rent, but never fulfilled the agreement. Abner resided on the premises, with his family, from the time when they were conveyed to him by Carter, until January 1835- They were of no more value than the sum for which they were mortgaged. During the time when Abner lived thereon, he was not worth any property, except such as is before mentioned, and he never paid any thing on the mortgage ; and in August 1831, he called on the defendants for relief, which was afforded to him.</p> <p>If Abner gained a settlement in Clarksburgh, the defendants were to be defaulted.</p>

The petitioner represents, that in the assessment of the taxes of the town of Bland ford for the years 1834, 1835 and 1836, he was overrated ; that he made application, ac cording to law, to the assessors, to abate his taxes, which they refused to do ; that he thereupon made application to the county commissioners, for the same purpose; and that they, having heard and examined his case, also decided against an abatement.

<p>If one of the parties to an unauthorized award performs it on his part, and the othet party accepts such performance, the latter thereby ratifies the award and is bound to perform it on his part.</p> <p>After one of the parties has received the benefits of such an award, it seems he cannot repudiate it on the ground that he ratified it in ignorance of the facts, unless he can and does restore the other party to as good a situation as he was in before the ratification.</p>

<p>At the Court of Common Pleas holden for Hampshire in November 1836, William Slack and Joseph Kingsley were convicted on an indictment alleging that they, at Westhampton, on the 20th of January, 1836, “ did unlawfully, feloniously, knowingly and wilfully remove and convey away from the said town of Westhampton a certain human body, to wit, the body of Ibrook Miller, who had deceased at said Westhampton previous to the said removing and conveying away aforesaid, they, the said William Slack and Joseph Kingsley, not being authorized by the board of health or overseers of the poor or the se • lectmen of said town of Westhampton,” contrary to the form of the statute, &c.</p> <p>It appeared that Miller died at Kingsley’s house in Westhampton, and that Slack, with the aid of Kingsley, secretly conveyed the dead body from Kingsley’s house to another town and delivered it to a physician for the purpose of dissectian. The counsel for the defendants contended, that the statute on which the indictment was found, (St. 1830, c. 57, § 1, 2,) entitled “ an act more effectually to protect the sepulchres of the dead, and to legalize the study of anatomy in certain cases,” applied to the removal of dead bodies which had been previously dug up, and not to the removal of such as had never been buried ; but Strong J. instructed the jury, that it applied to a case like the one under consideration.</p> <p>To this decision the defendants excepted.</p> <p>The case having been brought up to this Court upon the exceptions, the defendants also moved in arrest of judgment, because the indictment does not allege that the dead body was removed for the purpose of dissection.</p>

This action, which was debt upon a judgment, rendered in an action on a note secured by mortgage, was referred to W. Bliss, H. Chapin and R. Shaw, under a common rule of court.

This was an action on the case, brought upon St. 1786, c. 81, § 7, to recover double damages for an injury caused by an alleged defect of a highway in Belchertown, leading from the centre of that town to Ludlow. At the trial, before Wilde J., the plaintiff proved that the highway had been used by the public for more than forty years, but he produced no evidence that it had ever been laid out or established by any other authority.

<p>Where the owner of land erects upon it a dye-house and sets up dye-kettles therein firmly secured in brick work, they become part of the realty and pass by a deed of the land, without express words»</p> <p>A paroi reservation of a fixture, before or at the time of the delivery of a deed of the land, is inadmissible in evidence to control the ordinary effect and operation of the deed.</p>

<p>Trover for certain promissory notes, alleged to be the property of the plaintiffs. Trial before Shaw C. J.</p> <p>By an act of the legislature in 1774, a part of the town of Springfield was set off and erected into a separate district by the name of Ludlow, (which was subsequently incorporated as a town,) and it was enacted, “ that the said district of Ludlow shall have and hold their share and proportion of all ministry and school lands lying in the outward commons, so called, on both sides of Connecticut River, in said Springfield.”</p> <p>These lands were anciently, by votes of the proprietors of common and undivided lands of Springfield, appropriated partly to the ministry and partly to schools.</p> <p>An agreement was entered into on the 15th of June, 1802, between the town of Springfield and the first parish in Springfield, on the one part, (by their committee for settling all controversies, claims and demands between the towns of Ludlow and Springfield, and also for selling the ministry and school lots in Ludlow,) and the town of Ludlow on the other part, (by their committee authorized to settle all disputes respecting the ministry and school lands, and all other matters in dispute with the town of Springfield,) in which agreement it is stipulated, that the town of Springfield shall sell and convey to the town of Ludlow all their right and title to the school lot, so called, in Ludlow, and hat the town of Springfield and the first parish shall, with the minister in the first parish, sell and convey all their right and title to that part of the ministry lot, so called, lying in Ludlow, “ to be to the sole and only use, in trust for the ministry in said town of Ludlow, and not to be appropriated to any other purpose ; unless the said town, with the consent of the minister thereof, shall sell the said lots, or any part of them, and shall vest the proceeds of said sales in other lands within one year from such sales, which shall be conveyed to the above use and trust” ; and the town of Springfield shall make to the town of Ludlow a discharge from all claims and demands, &c.; and the town of Ludlow agree, in consideration thereof, to pay to the town of Springfield and the first parish in Springfield $ 350, and to release to the ministry in the first parish in Springfield, the residue of said ministry lot, &c., and also release to the town of Springfield all their right to the school lots, so called, in West Springfield, and also discharge the town of Springfield from all claims and demands, &c.</p> <p>By an indenture, made on the 27th of September, 1802, between the town of Springfield, of the first part, the town of Ludlow, of the second part, Bezaleel Howard, the minister of the first parish in Springfield, of the third part, and the first parish in Springfield, of the fourth part, the town of Springfield quitclaim to the town of Ludlow, a lot of land formerly by the town of Springfield “appropriated, sequestered and laid out for a school lot,” &c. “to have and to hold to the said inhabitants of said town of Ludlow, for the sole and only use and benefit and interest for the ministry in said town of Ludlow, and not to any other use or purpose, forever.” And Howard, with the assent and confirmation of the first parish in Springfield, together with the town of Springfield, quitclaim to the town of Ludlow, all their respective right and title to that part of the ministry lot, so called, which lies in Ludlow, which lot was anciently appropriated, granted and laid out for the ministry, “to have and to hold to them, the said inhabitants of the said town of Ludlow, forever ; the last abovementioned premises, with the appurtenances, to the sole and only use of the ministry in said town of Ludlow, and not to be appropriated for any other use and purpose ; unless the said town of Ludlow shall, with the consent of any settled minister thereof, sell the same or any part thereof, and vest the whole of the proceeds of such sale or sales in other lands, which shall be conveyed to the above uses and trusts.” And the town of Ludlow quitclaim to Howard, for the use of the ministry of the first parish in Springfield, all their right and title to the residue of the ministry lot, &c. and quitclaim to the town of Springfield all their right and title to the school lots, so called, lying either in Springfield or West Springfield. The towns of Springfield and Ludlow also executed mutual discharges from all claims and demands.</p> <p>On the" 6th of December, 1802, the town of Ludlow voted to accept the foregoing deed.</p> <p>In November 1806, the town of Ludlow voted to accept the report of a committee, which report set forth that the committee had sold the whole of the ministerial lot and a part of the school lot; that they had executed warranty deeds of the same for and in behalf of the inhabitants of the town ; and that they had received, in consideration of the sales, and for the use and benefit of said inhabitants, the notes and obligations enumerated in the report.</p> <p>The notes for which this action was brought, were the proceeds of the lands thus sold, and were payable to the inhabitants of the town of Ludlow, being either the original notes or renewals of them.</p> <p>From 1806 until 1835, the town from time to time chose a committee to take care of the fund arising from these sales, frequently designating it as “ the ministerial fund,” and applied the interest towards paying for the services of ministers of the gospel, occasionally specifying that each denomination of Christians in the town should draw their proportion of the interest and expend it in the meetinghouse- From 1819 to 1831 the Rev. E. B. Wright was the settled minister of the town, and during that period he received the income of this fund as a part of his salary.</p> <p>On November 9th, 1835, the town voted that the interest arising from “ the ministerial fund ” be appropriated to the use of schooling ; and, in February 1836, they chose a committee with full powers to demand all notes belonging to the town, and to institute suits for the recovery of the same.</p> <p>On the 24th of November, 1835, Oliver B. Morris, a justice of the peace for the county of Hampden, on the written apnlication of eighteen persons, calling themselves legal voters in the first parish in Ludlow, and representing that this parish had never been organized pursuant to the statutes respecting parishes, and requesting that a warrant should be issued for calling the first meeting of the parish, issued a warrant directed to Daniel Miller, one of the applicants and a member of the parish, requiring him to warn the inhabitants of the parish, qualified by law to vote in parish affairs, to assemble at the meetinghouse in Ludlow on the 9th of December then next, at one o’clock in the afternoon, to act on the following article, viz., “ To choose a clerk and other necessary and usual parish officers.”</p> <p>Miller returned, that he had served the warrant, by posting it up “ in three public places in Ludlow ten days previous ” to the time appointed for the meeting.</p> <p>The meeting was held, pursuant to the warrant, Morris presiding, and it was “voted to organize the parish.” A clerk was then chosen and sworn ; then a moderator, the clerk presiding at the choice ; and afterwards a treasurer, assessors, a committee to superintend the ministerial fund, a committee to supply the pulpit, and a committee to seat the meetinghouse. At a parish meeting called by a warrant from these assessors and held on the 2d of January, 1836, Simeon Pease, Simeon Jones and Chester Sikes were chosen a committee to superintend the ministerial fund.</p> <p>In regard to the mode of warning the first meeting of the parish, it appeared, that in 1800 the town of Ludlow voted that town meetings should be warned by setting up notifications at the meetinghouse and at the two nearest public houses in the town. In 1821 it was voted, that posting up notifications at three public places within the town, according to law, be considered a legal warning, viz. at Washington Jencks’s, the meetinghouse, and Ely Fuller’s. Evidence was received, subject to the plaintiffs’ objection to its admissibility, as to the usage of the town. One Frost testified, that the mode of warning town meetings in Ludlow has been, to post notifications at three public places, generally ; one at the meetinghouse, and one at each of two taverns. For annual meetings and elections the practice has been to give fourteen days notice, but for other meetings to give seven days notice. One Burr testified, that the practice for twenty years had been, to give seven days notice for common meetings for town affairs, fourteen days for elections, and fourteen days for elections of governor, senators, and representative to Congress.</p> <p>No territorial or poll parish was ever incorporated, in Ludlow, either by special act of legislation, or under the provisions of the acts for religious freedom, prior to November 1835 ; but some of the inhabitants of the town had by certificate and by force of the acts of the legislature setting them off, at different times, become members of parishes out of the town of Ludlow.</p> <p>On the 13th of February, 1836, the defendant held the promissory notes in question, and upon a demand then made by an authorized agent of the town of Ludlow, he refused to deliver them, on the ground that they constituted a part of the ministerial funds of the first parish in Ludlow.</p> <p>The defendant contended, that the town of Ludlow held the lands sold and the proceeds of the sales, in its parochial character, as ministerial lands and funds ; that until 1835 the town constituted but one parish ; that in that year the first parish in Ludlow was duly organized ; that thereupon it became the successor of the town as to all its parochial rights, and this ministerial fund vested in the parish, and the notes in question were rightfully held by the defendant as the agent of the parish.</p> <p>The plaintiffs objected to any proof of the agency of the defendant for the first parish in Ludlow, because no such parish had ever been duly organized or had ever had any legal existence : —</p> <p>1. Because there- was no first parish, as distinct from the town, within the meaning of the statute, when such organization is supposed to have taken place ;</p> <p>2. Because there was no clause in the warrant to enable members to determine' by a vote, whether they would change their organization and become organized as a parish, or not; and the members of the first parish therefore were not legally warned ;</p> <p>3. Because the return of the warrant showing a posting oí notices at three public places, by Daniel Miller, one of the petitioners, was not a sufficient legal notice.</p> <p>A verdict was taken by consent, for the plaintiffs, for $2000, subject to the opinion of the whole Court upon the question whether the plaintiffs were entitled to recover. If they were not, the verdict was to be altered so as to stand as a general verdict for the defendant.</p>

<p>Assumpsit by the payee against the maker of a promissory note, purporting to be for value received, dated August 18th, 1835, for $ 150, payable on demand after the first Tuesday of October 1835.</p> <p>At the trial, before Shaw C. J., it appeared that about the 15th of August, 1835, the plaintiff, then a deputy sheriff, received a writ in favor of one Whitcomb against one Clapp, requiring an attachment to the amount of $ 500, and with directions to attach property ; that Clapp had some stock in his shop, consisting of boots and shoes, and also furniture in his house, liable to attachment; that the defendant was the sister of Clapp’s wife, and was then residing in his house ; that she gave the note now sued, either to obtain the discharge of the furniture actually attached by the plaintiff, or to exempt the same from attachment; that the plaintiff returned on the writ in favor of Whitcomb an attachment of the furniture; that he was afterwards called upon to pay, and after a suit against the sheriff, did pay the value of the furniture in satisfaction of Whitcomb’s execution ; and that a few days after the date of the note, viz. on the 25th of August, Clapp executed to the defendant a mortgage of the furniture and some other personal property, which was on the same day acknowledged and recorded.</p> <p>The defendant contended that the note was void for want of a legal consideration ; and also, that being taken by the plaintiff in violation of his duty as an officer, the consideration was illegal and the note, on this ground, was void.</p> <p>The jury were instructed, that if the plaintiff had actually attached the furniture, and at the request of the defendant gave it up and took her note therefor ; or if, having it in his power to attach it, and being about to do so, he at her request forbore to do so, taking her note therefor ; it was, as between the parties, a good consideration for the note, and not void for illegality.</p> <p>A verdict was returned for the plaintiff for the amount of the note, and interest from October 1835.</p> <p>If the Court should be of opinion that the note was void for illegality or want of consideration, the plaintiff was to become nonsuit; otherwise judgment was to be rendered on the verdict.</p>

<p>Assumpsit on an account. One item was $30 for amputating the breast of the defendant’s wife. The action was tried in the Common Pleas, before Strong J.</p> <p>The defendant lived in Colerain, in the county of Franklin. The plaintiff lived in Nassau, in New York, a distance of sixty-live miles from Colerain. He had formerly lived in Colerain, and was a surgeon of good reputation. The wife of the defendant had been afflicted with a scrofulous humor in her breast for about two years, which did not, however, prevent her from attending to her domestic duties in the family, and the defendant then carried her from Colerain to Nassau and put her under the care of the plaintiff as a surgeon. At that time the humor was not a cancer nor cancerous. After she had been at Nassau ten weeks, the plaintiff performed on her the operation of amputating her breast, and she died in about a week after. The defendant had no communication from the plaintiff, nor from the defendant’s wife, from the time that he carried her to the plaintiff until a day or two before her death, when he went to the house of the plaintiff.</p> <p>The counsel for the defendant contended, that the plaintiff was not entitled to recover for this item, because it was not proved that the service was performed at the request of the defendant.</p> <p>The counsel for the plaintiff requested the judge to instruct the jury, that as the defendant put his wife under the care of the plaintiff as a surgeon, he impliedly requested him to do for her what he should think necessary and proper ; and as the wife must have assented to the operation, her assent was the assent of the husband, and therefore the defendant was liable to pay for this service.</p> <p>The judge refused to give this instruction, and instructed the jury as follows : That as it did not appear that the wife had a cancer or cancerous humor when the defendant put her under the care of the plaintiff, the plaintiff was not authorized to perform the operation, so as to charge the defendant with payment, without proving to the reasonable satisfaction of the jury, that the operation was necessary and proper under the circumstances ; and proving further, that before he performed the operation, he gave notice to the defendant, or that it would have been dangerous to the wife to wait, before he performed the operation, till notice could be given to the defendant; and as no evidence of this kind was given or offered, the jury would not be authorized to allow this item.</p> <p>The jury found for the plaintiff, but did not include this itero in their verdict.</p> <p>To the refusal to give the instruction prayed for by the plaintiff, and to the instructions given to the jury, the plaintiff excepted.</p>

<p>In the appointment of an administrator, the judge of probate is not authorized to pass over the intestate’s next of kin, although not living in the county or not competent and suitable for the trust, and appoint a stranger, before the expiration of thirty days from the death of the intestate, without citation or notice to the next of kin.</p>

<p>Writ of habeas corpus. The facts of this case are sufficiently stated in the opinion of the Court.</p>

<p>Trespass quare clausum. The parties submitted the action to the determination of the Court, upon an agreed statement of facts.</p> <p>The act complained of as a trespass was admitted ; and if the plaintiff was entitled to recover, he was to have nominal damages.</p> <p>On the 7th of March, 1832, Lewis Thayer granted to Henshaw “ a privilege of drawing water from a pond in New Worcester, to be raised by a dam to be erected, &c.; said Thayer is to erect a dam ten feet high, &c.; said Thayer, his heirs or assigns, are to draw, in the first place, from said pond, sufficient water to carry four sets of woollen machinery, or for other business requiring no more water than four sets of woollen machinery, &c. The privilege intended to be conveyed to said Henshaw is subject to the following restrictions, limitations and conditions :</p> <p>1. Said Henshaw is to draw no water when the water is four feet below the top of the dam to be erected as aforesaid ;</p> <p>2. Said Thayer reserves for himself, his heirs and assigns, &c., that is, said Henshaw’s privilege is to consist of all the surplus water from said pond, except so much as is necessary to propel the machinery aforesaid, and said Henshaw is in no case to draw the water lower than four feet from the top of the dam.”</p> <p>This deed contained covenants of seisin, right to convey, and general warranty.</p> <p>On the same 7th of March, 1832, Henshaw gave back to Thayer a mortgage of the above-granted premises, in fee, with like covenants ; and subsequently the mortgage was assigned to Wheelock.</p> <p>At the several periods when Thayer made his deed to Henshaw and assigned the mortgage to Wheelock, he was the owner of a parcel of land on the southeast side of the river with a right to abut a dam upon the land of Henshaw on the opposite side, and he owned a very small part of the land above, which would be flowed by erecting a dam across the river.</p> <p>About one hundred rods above the premises there was an ancient water privilege, dam and mill, which were owned by one Eldridge. The wheel and privilege of this mill would be submerged by raising the water to any greater height than six feet by a dam placed on Thayer’s premises.</p> <p>After the plaintiff became sole seised of the premises, he erected a dam thereon, whereby he could raise a head of water to the height of ten feet, he not knowing at that time the effect which would be produced on the dam, privilege and mill of Eldridge ; but this was ascertained by the experiment of raising the water. As soon as it rose above six feet, the plaintiff was íesisted by Eldridge, on account of the nuisance which it occasioned to the ancient mill; and the plaintiff was compelled to draw the water down, so that it did not rise higher than six feet. Thayer never had any right to flow the water back upon Eldridge’s mill.</p> <p>Eldridge’s mill and" privilege were conveyed to one Damon, and after that conveyance Wheelock, by indenture dated February 16th, 1835, leased to Capron and Parkhurst, for ten years, the premises conveyed to him by Thayer, reserving the right of using all the surplus water in the stream, after furnishing a supply for certain purposes to the lessees.</p> <p>After this lease was made, Capron and Parkhurst became the purchasers and grantees from Damon, of the ancient privibge, and after this purchase and before the alleged trespass, Capron and Parkhurst, for the purpose of using the water more advantageously, under their lease, raised the water- to the height of ten feet, whereby the ancient privilege was submerged and rendered of no value.</p> <p>Capron and Parkhurst never made any grant to the defendant, nor gave him authority to do any thing to the premises or to draw any water from the pond.</p> <p>The trespass alleged to have been committed by the defendant consisted in his attempt to cut through the dam for the purpose of inserting a floom therein, by means of which he could draw the water from the pond, which he claimed a right to do. He had removed some of the stones and gravel, when he was resisted by the plaintiff; and further proceedings were thereupon stayed by consent, until the legal rights of the parties could be determined.</p> <p>If the defendant had no right to make a floom in the dam and draw water from the pond, he was to be defaulted ;■ otherwise the plaintiff was to become nonsuit.</p>

<p>if a mortgagee enters for condition broken, and is subsequently put- under guardian» ship as a spendthrift, his guardian is authorized to restore the possession of the land to ike mortgagor, and thereby to prevent a foreclosure.</p>

Assumpsit upon an account annexed to the writ, for spinning done by the plaintiff at the factory of the defendants. Trial in the Court of Common Pleas, before Strong J. The plaintiff offered evidence to prove, that he worked for the defendants from about the 1st of May till the latter part of August, 1836.

By the answers of the trustees it appears, that they are joint executors of the will of Abijah Davis ; that they have in their hands a sum of money, thirty shares in the Oxford bank, subject to some debts and liabilities of the testator’s estate, and thirty shares in the same bank, the income of which is to be paid to the testator’s widow during her life ; and that Mary Waters, a daughter of the testator, was at his death and now is the wife of the defendant, and on a final…

Assumpsit for the services of the plaintiff’s minor son, Henry Reidell.

<p>This was an action on the case to recover compensation lor a pew owned by the plaintiff, which was alleged to have been rendered useless by the acts of the defendants.</p> <p>At the trial, before Morton J., it appeared, that the plaintiff owned a pew in the meetinghouse of the defendants, but that h had not been a member of the parish for some years ; that the defendants had removed a stone wall which supported an embankment at the end of the meetinghouse, and had used the same for the foundation of a new meetinghouse erected by them ; but that, in other respects, the old meetinghouse remained in the same state as before."</p> <p>It was admitted by the defendants, that, the old meetinghouse being inconvenient and unnecessarily large, and requiring expensive repairs, they had transferred their public worship to the new meetinghouse, and had abandoned the old one as a place of worship.</p> <p>The jury were instructed, that if the old meetinghouse continued to be fit for public worship, the plaintiff was entitled to recover the value of his pew ; and the jury returned a verdict in his favor accordingly.</p> <p>If this instruction was erroneous, a new trial was to be granted ; otherwise, judgment was to be rendered on the verdict.</p>

<p>A paroi contract is not void by the statute of frauds, as an agreement not to be performed within a year from the making thereof, if the performance of it depends upon a contingency which may happen within the year, although in fact it do not happen until after the expiration of the year.</p> <p>Thus, a paroi contract to support a person for a certain number of years, is not within the statute ; for if he die within one year, having been supported under the contract until his death, the contract will have been fully performed.</p>

This was a complaint against a mill-owner for flowing the land of the complainant. At the trial, in the Common Pleas, before Strong J., the jury having returned a verdict for the complainant, the defendants objected to its acceptance, on the ground that the foreman of the jury, at the time when he was drawn as a juror, was more than sixty-five years of age, ana that this fact was not known to the defendants before the verdict was returned.

<p>This was an action of assumpsit, for money had and received, in which the plaintiff sought to recover a sum of money alleged to have been collected for her by the defendant as her attorney.</p> <p>At the trial, before Morton J., it appeared, that on the 30th of October and 1st of November, 1832, the defendant, as the attorney of certain creditors of Ephraim B. Hardy, sued out several writs against him, and committed the same to Wilson Rawson, a deputy sheriff, who, by virtue thereof, attached the personal property of the debtor; that the defendant also sued out a writ in favor of the plaintiff, against E. B. Hardy, and delivered it to Rawson, who attached the same property, after the attachments before mentioned had been made.</p> <p>It further appeared, that judgment was recovered in these actions in December 1832, and the several executions were received by the defendant, but with the exception of one in favor of C. Parkman, were not placed in the hands of any officer; that all the personal property so attached was sold by Rawson on mesne process, by consent of the parties, for $ 1010'70, being more than the amount of the plaintiff’s and all the prior attachments ; and that in January 1833, the defendant gave to Rawson a writing acknowledging that he had, as attorney of the plaintiffs in such action, received of him the nroceeds of such sale, being the sum of $ 1010*70.</p> <p>The plaintiff offered Rawson as a witness, in order to prove that a demand was made on the present defendant before this action was brought. The defendant objected to his competency, on the ground of interest; but he was admitted by the judge.</p> <p>The judge ruled, that the plaintiff was entitled to recover the residue of the proceeds of the sales, to the extent of her judgment, after satisfying the judgments of the prior attaching creditors ; and the jury accordingly returned a verdict for the plaintiff.</p> <p>If the Court should be of opinion that this ruling was erroneous, a new trial was to be granted ; otherwise, judgment was to be rendered on the verdict.</p>

Assumpsit by the plaintiffs as indorsees of a promissory note, against the defendant as indorser. The declaration contained various counts. The note was as follows: ££ Grafton, June 23d, 1835.

Petition for a certiorari. It appeared that a complaint was filed before a justice of the peace, by the respondent, who was the clerk of a militia company, against several members of the company, specifying their offences against their respective names; that the name of the petitioner was among the number, but no such specification was made against his name ; that, at the trial, the respondent moved for leave to amend, the complaint in this particular, by inserting against…

It having been made to appear, in the Court of Common Pleas, that the plaintiff in this action was insolvent at the time when the action was commenced, Strong J., who was presiding, on motion of the defendant, ordered the plaintiff to procure a responsible indorser of his writ. The plaintiff excepted, on the ground, that that court had no authority to pass such order.

<p>Whero a note was made without the knowledge of the payee, who was liable as a surety for the maker for a debt due but not paid, against which liability the maker had promised to secure the payee, and the maker caused his own property to be attached for the purpose of securing payment of the note, it was held, that the note did not constitute a debt<c justly due ” to the payee, within the meaning of Revised Slat. c. 90, § 83 et se?., until assented to by him, and that therefore the attachment might be vacated under that statute, on the petition of a creditor of the maker who attached the same property subsequently but before such assent was given.</p> <p>But where the plaintiff was the holder of a note payable on demand, which the debtor promised originally to secure, and without the plaintiff’s knowledge the debtor caused his own property to be attached for the purpose of securing the payment of the debt, it was held> that subsequently attaching creditors could not, under that statute, object to the validity of the prior attachment, on the ground, that the action was not commenced by the order of the plaintiff, and that his assent was not given to it till after the subsequent attachment had been made.</p>

<p>Assumpsit on the common money counts.</p> <p>At the trial, in the Court of Common Pleas, before Cum~ mins J., the plaintiff offered evidence to prove, that James W. Jenkins commenced an action against one Doane, in which a pair of oxen were atlacbed by Holden, the present defendant, then a deputy sheriff, he having received a bond of indemnity from Jenkins or his agent; that the present plaintiff thereupon commenced an action of trespass against Holden, for attaching the oxen ; that, after such action had been entered, it was agreed between the plaintiff and Jenkins, who defended the action, that the plaintiff should become nonsuit, and should pay Jenkins the costs which had accrued, in lumber ; that the plain tiff having accordingly become nonsuit, Holden recovered judg ment against him for costs, and sued out his execution therefor : that after this took place, but before the costs bad been paid by the plaintiff, one Flagg sued out a trustee process against Jen kins, and summoned the plaintiff as his trustee ; that the plaintiff was adjudged to be such, on the ground of his liability to pay the costs, under the agreement with Jenkins ; and that after the plaintiff had been so adjudged trustee, Holden caused his execution for costs to be enforced against the plaintiff, and received the amount thereof.</p> <p>Th i plaintiff claimed in this action the amount so received by Holden; but the judge ruled that the action could not be maintained. The plaintiff excepted to this ruling.</p>

<p>Where a parcel of land represented as containing fifteen acres, was soid for by the acre, but the vendor’s deed set forth, that in consideration of the payraen of the sum of $ 75*75, he thereby conveyed to the vendee the parcel in question, <c containing fifteen acres ”, described by metes and bounds, and there proved to be a deficiency in the quantity of the land, it was held, that the vendee could not recover back any portion of the consideration paid, all prior proposal» and stipulations being merged in the deed.</p> <p>A subsequent promise by such vendor, that, if there should be a deficiency in the quantity of the land, he would make it right, is void, as not being founded on a suffi cient legal consideration.</p>

<p>A person, in order to gain a settlement in a town, in the twelfth mode prescribed by 1793, c. 34, § 2, must pay all the taxes duly assessed upon him for five out of the ten years of his residence in such town ; and it is not sufficient, if he pays a part only of such taxes, and is discharged from the payment of the residue by a vote of the town.</p>

<p>Where property attached in the hands of trustees, was assigned by the owner, and the attachment was afterwards dissolved by his death and the grant of letters of administration, it was held, that the assignee, and not the administrator, was entitled to the property.</p> <p>Where real estate was placed in the hands of a trustee, to be conveyed to T.’s appointee, or in failure of an appointment, to her heirs at law, and she died without making an appointment, it was held, that as she had no legal title to the property, it could not be sold in the ordinary course of administration, under a license, for the payment of her debts.</p> <p>An heir of T. having made a general assignment, for the benefit of his creditors, of all his lands, tenements and hereditaments, goods and chattels, &c. and all his right, title and interest in and to the same, it was held, that his share in the real estate in the hands of such trustee, passed by the assignment.</p>

<p>Indictment for a violation of Revised Stat. c. 47, § 1, in selling spirituous liquor without license.</p> <p>At the trial, in the Court of Common Pleas, before Cummins J., the defendant admitted that he had sold a quantity of gin, but claimed to have been duly licensed as an innholder, to sell the same.</p> <p>The district attorney, in order to prove that the defendant was not so licensed, offered in evidence the records of the county commissioners. The defendant objected to this, because he held a certificate from the clerk of the county commissioners, which set forth, that on the 17th of May, 1837, the defendant was duly licensed as an innholder or seller of wine, brandy, and any other spirituous liquors, until the 1st of April, 1838. The judge admitted the records in evidence, whereby it appeared, that at a meeting of the county commissioners on the 16th of May, 1837, a license was granted to the defendant to sell fermented liquors; but no other license appeared, upon the records, to have been granted to him.</p> <p>The judge instructed the jury, that the record proved that the defendant had not been licensed to sell spirituous liquors; that the certificate was not evidence of such a license ; and that they should return a verdict of guilty. The jury having found accordingly, the defendant excepted to these rulings.</p>

<p>Where an executor, supposing the estate of his testator to be solvent, paid in full a debt due from the estate, it was held, that he could not, upon such estate proving to be insolvent, recover any portion of the sum so paid, from a surety of the testator, it not having been paid at the request of the surety; although, if the executor had not paid it, the surely would have been compelled to do so, and would have had his remedy over against the estate for a dividend only.</p>

<p>The persons for whose use a guardian’s bond is given to the judge of probate, cannot maintain an action upon it in their own names, either at common law or in equity.</p>

<p>This was an action on the case, to recover damages for an injury sustained Dy 'he plaintiff, by reason of a defect in a highway in the town (now city) of Lowell, called Merrimack street.</p> <p>At the trial, before Morton J., it appeared that there was an ancient county road leading through that part of Chelmsford which now constitutes Lowell, and thence through Tyngsborough to Dunstable. In 1822 that road was stopped up by an impassable canal, fences,- and dwellinghouses, erected and made by a corporation called The Proprietors of Locks and Canals on Merrimack River, and the travel on it entirely prevented. At the same time Merrimack street was opened by the same corporation, in the general direction of the old road, passing over the canal by a bridge, and falling into the old road at each extremity. From that time the travel was wholly diverted into this street, which was to appearance a part of the same county road, and all traces of the old road were obliterated.</p> <p>The town of Lowell was incorporated in 1826. In 1827 the selectmen of the town directed generally, that guide posts should be set up in such places as required them, and pursuant to that direction, one of the selectmen set a guide post at the corner of Central street and Merrimack street, directing on the latter street to Tyngsborough and Dunstable. On Merrimack street were a church and parsonage, leased to a religious society, and used as a place of public worship. On the side of the street, opposite to the church, was an excavation about eight or ten feet deep, extending into the travelled part of the street, where the injury to the plaintiff was received. The street was otherwise a good road. There was no further evidence of acceptance of the street on the part of the town, or of any work or repairs done thereon by the authority of the town.</p> <p>On the 19th of October, 1828, the plaintiff was passing with a horse and chaise, in the night time, between certain points in Lowell, and fell into the excavation. Prior to shutting up the old road his course would have lain through that road, and after the discontinuance of that road the only travelled way between those points was through Merrimack street, and across the bridge over the canal.</p> <p>A nonsuit was ordered, subject to the opinion of the Court.</p> <p>The case was submitted to the Court in 1836, without argument.</p>

<p>This was an action of trespass, commenced before a justice of the peace in January 1835, for breaking and entering the plaintiff’s “ close, situated in Medford.” The defendant pleaded that the close in which the trespass was supposed to have been committed, was the soil and freehold of himself and others, the heirs of George B. Lapham. Thereupon the action was removed to the Common Pleas, pursuant to Si. 1783, c. 42, § 2. In that court the plaintiff' new assigned, describing the locus in quo with particularity, and averring it to be different from the close alleged in the plea to be the soil and freehold of the defendant and others. To the new assignment the defendant pleaded, that the close therein described was the soil and freehold of G. B. Lapham, at the time of his decease, and descended to the defendant and others ; to which the plaintiff replied, denying that such close was the soil and freehold of G. B. Lapham, at the time of his decease. The defendant also pleaded the general issue, which was joined. The cause was tried in the Common Pleas, and the jury found the defendant guilty of the trespass newly assigned ; and further, that the close described in the new assignment was not' the soil and freehold of G. B. Lapham, at the time of his decease. Judgment was rendered upon the verdict, and the defendant thereupon appealed ; and the action having been entered in this Court, the defendant moved that it might be dis missed, because the new assignment had been improperly allowed in the Common Pleas.</p>

Case against the sheriff of Middlesex, for the alleged default of one Bancroft, his deputy, in not keeping safely, until thirty days after judgment, certain personal property attached by Bancroft on an original writ in favor of the plaintiff against one Blake, and in not levying and returning satisfied by that property, the plaintiff’s execution in that suit.

Assumpsit for expenses incurred by the plaintiffs in the support of Polly Locke, a pauper whose settlement was alleged to be in Burlington. Trial before Wilde J. The pauper was the daughter of William Locke ; who was born in Woburn in 1720. Burlington was then a part of Woburn. William’s father was living on the Hammond Locke-place at the time of William’s birth. Polly was born in 1760, her father, at that time, living with his father on the Hammond Locke place.

Assumpsit for boarding the defendant’s two minor children during the pendency of a libel for divorce a mensa et thora, filed against the defendant by his wife.

Scire facias. On a case stated it appeared, that Wilson brought an action against Green, recovered judgment therein in the Common Pleas, and took out his execution ; that the execution was delivered to a deputy sheriff and was satisfied by him out of the proceeds of personal property attached and sold by him on the original writ, and was duly returned ; that one Richardson claimed the property as the owner, and before the sale of it, brought his action of trespass against…

<p>A mortgage of real estate was made to B., conditioned to pay him the contents of a promissory note payable on demand, signed by him as surety and by the mortgagor as principal, or indemnify him against his liability on the note. This note was afterwards taken up, a new note, signed by the mortgagor and other sureties, being given therefor. It was held, that the condition of the mortgage was saved, and consequently that no interest in the mortgaged premises remained in B. which could pass by his assignment of the mortgage.</p>

<p>A collector of taxes, acting under a warrant from the assessors, is not responsible to the party of whom he levies a tax, for the regularity of the town meeting, or the validity of the votes at the meeting, at which the tax is granted.</p> <p>After the election of a town treasurer at a town meeting held under a warrant to choose town officers, a second meeting was called by a warrantfe to fill any \acancies in town offices that may exist.” At this meeting it was voted, that the treasurer be appointed collector of taxes. It was held, that no collector having been chosen at the first meeting, there was a vacancy in the office, and that it might be filled, either by electing a separate officer, or by appointing the treasurer collector.</p> <p>A town clerk entered in his book of records, that the defendant was elected and svvoi n as treasurer ; afterwards, on leave to amend his record, he struck out the word treasurer and inserted the words collector of taxes according to my best knowledge and belief, and he testified to the grounds of his belief. It was held, that the alteration was not a record, but that it was competent to go to the jury, together with the paroi evidence, on the question whether the defendant had been sworn as collector.</p> <p>Where the assessors of a town chose no chairman, it was held, that one of them, who kept their books and papers and did all their writing, might be considered the principal assessor, within the meaning of St. 1823, c. 138, § 3, which provides that a copy of the lists of assessment, and of the valuation, shall be deposited in the assessors’ office, where there is one, otherwise shall be lodged with the chairman or principal assessor, for general examination.</p> <p>The provision in St. 1815, c. 130, that a copy of the 2d section, respecting an abatement to those who pay their taxes promptly, shall be posted up in public places, is merely directory to the assessors, and the plaintiff in an action of trespass against a collector for taking his goods in levying his tax, cannot avail himself of a failure in this respect, as an objection to the validity of the assessment.</p> <p>So of the omission by the assessors to follow precisely the form of valuation prescribed by St. 1823, c. 138.</p> <p>A warrant to a collector of taxes, signed by only a majority of the assessors, is valid</p>

Replevin for certain goods taken by the defendant, a deputy sheriff, by virtue of an execution in favor of one Cutler, as executor of the will of Aaron Eames, deceased, against the Middlesex Factory Company. This company was incorporated as a manufacturing corporation, in 1811. The goods were taken under St. 1808, c. 65, on the ground that the plaintiff was a member of the corporation ; and whether he was a member, was the question in controversy.

<p>In a deed of conveyance of woodland, the boundary line wag described as running, ts northerly to land of M., thence southeasterly by JYL’s land, thirty-eight rods apd one half, to a stump and stones >s ; and immediately after the conveyance the parties went upon the land and a monument was pointed out as being at the northwesterly corner, and a stump and stones as at the northeasterly corner, and the length of die line between them was exactly thirty-eight rods and a halfj but a gore of land intervened between this line and the land of M. It was held, that the monuments were to govern, and therefore that the gore did not pass by the deed.</p>

<p>One C. conveyed to the plaintiff’s grantor, in fee, a parcel of land, including a portion of C.*s mill pond, with liberty of ingress and egress to and from any part of the described land and water to dig out and carry away the whole or any part of the soil. After the same granted premises had been conveyed to the plaintiff, an agreement was made between C. and the plaintiff, in which C. covenants, (without mentioning his heirs or assigns,) that he will, upon the plaintiff’s request, draw off his pond six days in each year, in the months of August and September, for the purpose of giving the plaintiff an opportunity of digging and carrying out mud. C. died and his estate in the mill pond descended to the defendants. In an action by the plaintiff against the defendants, on this covenant, it was held, that there was a privity of estate between the parties and that the covenant ran with the land.</p>

These were actions of trespass quart clausum fregit, and for demolishing a shed, destroying the plaintiff’s fence, &c. It was stated by the counsel for the plaintiff, that the defendants, if guilty, were equally and jointly guilty ; and by consent of the parties the two actions were tried together.

<p>The several owners of mills drawing water from the same stream by means of the same dam, entered into an indenture in which, for themselves, their heirs, administrators and assigns respectively, they covenanted with each other, and their respective heirs, administrators and assigns, that they would erect and use wheels of a certain construction and limited power, in their respective mills. It was held, that there was no privity of estate between the parties to the indenture, and consequently that the covenant did not run with the land and bind the grantee of one of the mills.</p>

<p>Id a writ of entry by a mortgagee, it appeared, that the defendant lived on the land with the mortgagors, who were his sons and were blind, and that he was the only manager and efficient agent on the premises, cultivating and improving the same. It was held, that the defendant was not a tenant of the land, and was not liable to the action.</p>

<p>This was a writ of entry, in which the demandants declared upon their own seisin, and a disseisin by the tenant.</p> <p>The parties agreed upon the following facts. The writ is dated the 20th of February, 1837. Before and on the 12th of November, 1836, one Wilson owned the demanded premises, subject to three mortgages, given by him prior to that day. On that day L. Parker, a deputy sheriff, sold by auction to the tenant, for $215, on divers executions, Wilson’s right in equity of redeeming the premises, and on the same day gave to the tenant a deed thereof, in common form. On the 2d of December, 1836, Wilson conveyed to the demandants, by deed of warranty, all his estate, right and interest in the premises. Both of these deeds were duly executed, acknowledged and recorded. On the 7th of the same December the demandants, in order to redeem such right in equity, tendered to the tenant $217, and presented to him for execution a deed of release in common form, and requested him to execute it and thereby release to the demandants the right in equity. The tenant refused, on the ground that the deed tendered did not release the premises to Wilson. He offered to convey to Wilson for the sum tendered, but refused to convey to the demandants.</p>

Trespass against a constable for attaching the plaintiff’s goods. On a case stated it appeared, that the attachment was made in November 1835, on a writ against Brown in favor of one Hendley. Previously to the attachment the plaintiff carried on the business of a cabinet-maker, in Medford, in a shop hired by him for that purpose, and employed several workmen.

<p>The plaintiff, being the guardian of a person whose legal settlement was in the town of L. and who was incapable of labor and had no property except a small pension, informed the overseers of the poor of two successive years, that he (the guardian) was running a risk, as he was obliged to become responsible for the board of the ward, and that when he received the pension it took about one half of it to pay arrearages due for the board, and that the town must take the risk. The ward died when all the property belonging to him had been exhausted and expenses had been necessarily incurred by the guardian, partly before and partly after the second notice and request. It was held, that the ward was in need of relief; and that under the second notice and request the plaintiff was entitled to recover of the town the expenses incurred subsequently thereto, but that the first notice and request would have been sufficient in regard to all the expenses.</p> <p>As the relation of guardian and ward subsisted between the plaintiff and the pauper, the objection that the plaintiff was not obliged to relieve the pauper because he was living with another inhabitant of the town, was held to be inapplicable.</p>

Assumpsit for rent from April 1st, 1835, to «anuary 1st, 1836.

Assumpsit for expenses incurred by the plaintiffs in the support of Lorana Babbitt.

<p>This was an indictment against Harnden for unlawfully selling certain real and personal estate by way of public auction, not being a licensed auctioneer.</p> <p>At the trial in the Common Pleas, before Strong J., it was testified that in the years 1835, 1836, and 1837, in January, Harnden was employed by the Unitarian society at Fall River, as a licensed auctioneer, to sell and let the pews of the society by auction, which he has uniformly done, according to the custom there, without malting any charge for his services. The pews were let in January 1837 for three months, but were held over the time ; and on the 3d of June were again let, and two or three of them were sold, by auction, agreeably to an advertisement of a committee of the society, which advertisement did not name the auctioneer who was to sell. At the time of this last sale (which was the subject of the indictment) Harnden was requested to sell, but he declined selling, unless under the direction of a licensed auctioneer, as he said his license had run out. Application was then made to Cromwell Chace, a duly licensed and qualified auctioneer, and Harnden proceeded to sell and let the pews by the consent and as the agent of Chace, who was in the meetinghouse some time during the sale, but whether he remained there during the whole of the time that the sale continued, did not appear. Harnden was a duly licensed auctioneer in the town of Fall River at the time of all the several sales above mentioned, except the last.</p> <p>The jury were instructed, that if they believed the foregoing facts to be proved, they should find a verdict of guilty; which was done accordingly. To this instruction Harnden excepted.</p>

<p>A town is authorized to appropriate money for the repair of fire-engines used for the purpose of extinguishing fires therein, whether they belong to the town, or were purchased by private subscription.</p> <p>Where a contract was made in pursuance of a vote of a town, but before the contract was performed the vote was rescinded, it was held, that the person with whom the contract was made, was not affectgd by the rescission, not ha/ing had notice thereof.</p> <p>Bat whether notice would have made any difference, quare.</p>

<p>Assumpsit on a promissory note for the sum of $ 190, dated December 5th, 1832, made by the defendant, payable, on demand, to Edwin Peck, and by him indorsed to the plaintiff.</p> <p>At the trial, before Putnam J., the defendant, having first proved that in November 1833 the note was in the hands of the payee, introduced evidence showing that, about the time when it was given, the defendant and the payee agreed to purchase a vessel together, it being stipulated, that the defendant should take the bill of sale in his own name and hold the vessel until the payee should pay for his part; that the defendant then received from the payee the sum of $ 190, for which the note in suit was given ; that the defendant accordingly purchased the brig Aldeboronto, of which the payee was to have one fourth part ; and that the defendant took the bill of sale of the whole vessel in his own name, in pursuance of such agreement.</p> <p>The defendant also offered in evidence the following writing signed by him, and dated December 6th, 1832 : —</p> <p>“ Be it known by this, that one fourth of the brig Aldeboronto doth belong to Edwin Peck, he or the brig paying the sum of $ 627 with interest to me ; one- fourth of proceeds of loss or gain belonging to him, he paying one fourth of all expenses belonging to owners to pay. The receipt of $ 190, I do hereby acknowledge towards the said $ 627 ”</p> <p>The defendant thereupon offered to prove, that this writing was signed by him in execution of the original agreement for the purchase of the vessel, and was by him delivered to the payee.</p> <p>The plaintiff objected to the admission of the agreement and of the paroi evidence offered ; but the judge overruled the objection.</p> <p>It was then proved, that the payee, afterwards, claimed to be an owner of the vessel, representing that the note in suit was taken for the sum of $ 190 paid in pursuance of the original agreement for the purchase of the vessel, and was the same $190 mentioned in the writing.</p> <p>The judge instructed the jury, that the writing executed by the defendant, if it was received by the payee, was an accord and satisfaction of the note, and extinguished the claim thereon, provided they were satisfied that the sum of $ 190 was advanced, and the note given upon a paroi agreement between the payee and the defendant to purchase the vessel together.</p> <p>The jury returned a verdict for the defendant.</p> <p>The plaintiff excepted to the instructions to the jury.</p>

<p>This was a bill in equity against the trustees created by an act of the legislature passed on the 3d of March, 1798, entitled “an act to incorporate certain persons as trustees of the funds raised by subscription for the support of religion, piety and morality, in the town of Raynham, in the county of Bristol; ” by which act the trustees named and their successors are vested with power “ to receive into their hands all subscriptions, donations, securities for real or personal estate, and monies already subscribed, given or raised, or which may hereafter be subscribed, given or raised for that purpose, and to put the same to use or interest for the purpose aforesaid ; ” and the town is empowered to call the trustees to account for their conduct in managing the fund, and to commence and prosecute an action against the trustees, or any of them, for any embezzlement or neglect of refunding moneys in their hands.</p>

<p>The declaration in an action upon St. 1822, c. 88, which prohibits any person from interrupting or turning the course of the fish in Taunton Great River within the distance of one hundred rods from a certain mill-dam, for the purpose of taking the fish without or beyond that distance, averred that the defendant set obstructions to the passage of the fish within one hundred rods from such dam, whereby the fish were driven down to a place more than one hundred rods therefrom, where the defendant and others owned a fishery, and did fish, with the intention to catch and destroy the fish so driven back by means of the obstructions. It was held, that the declaration was insufficient, there being no direct averment, that the defendant made the obstructions for the purpose of taking the fish at a greater distance than one hundred rods from the dam.</p> <p>Under St. 1819, c. 138, § 4, prohibiting any person from setting any wear, &c* across Taunton Great River with the intention of catching or destroying shad or alewives, the repairing of an old wear, by placing bricks, bushes and stakes thereon, was held to be the setting of a wear, within the meaning of the statute.</p>

<p>Assumpsit against the owners of the brig Rising States, to recover the amount due to the plaintiff, for the services of himself and a minor son, on a fishing voyage to the Straits of Belle Isle, during the summer of 1834. Trial before Wilde J.</p> <p>The declaration contained three counts. The first was indebitatus assumpsit. The second was for the son’s wages. The third set forth, that the defendants, by their certain writing obligatory under the hand of the defendant, Joseph Corey, who was master and part owner of the vessel in question, agreed that, if the plaintiff would go on the voyage, they would pay him the sum of $ 33 per month.</p> <p>The written agreement declared on was as follows : “ This is an agreement between Captain Halsey Baker and myself, on a fishing voyage to the straits, on board the brig Rising States, that I shall give him thirty-three dollars per month for” the voyage. If a share amounts to more, he is to have it. New port, May 21, 1834. Joseph Corey.”</p> <p>The defence set up was, that both the plaintiff and his son had signed articles of agreement, by which they were to receive a certain share of the fish caught by them, and therefore that they were not entitled to wages by the month. It appeared that the articles were signed several days after the vessel left the port of New Bedford and while in the British dominions.</p> <p>The plaintiff contended, that these articles of agreement were not binding upon him, on the ground, that their contents were fraudulently concealed by Corey, who told him, the sole object thereof was to enable the owners to obtain the bounty on the vessel under the laws of the United States ; and evidence was produced tending to prove these facts. It was also contended, on the part of the plaintiff, that the written agreement declared on, controlled the rate of wages to be paid for the services of the plaintiff.</p> <p>As to that part of the case which relates to the wages of the plaintiff, the jury were instructed, that if, from the evidence, they believed that the plaintiff did not know the contents of the articles of agreement, but was induced to sign them through the fraudulent misrepresentations of Corey, they should find a verdict in favor of the plaintiff, for his services, at the rate of $ 33 per month.</p> <p>The jury returned a verdict for the plaintiff accordingly.</p> <p>If the instruction was erroneous, a new trial was to be granted.</p> <p>Coffin, for the defendants.</p>

<p>Trespass quare clausum. At the trial, before Putnam J., it appeared, that the locus was a lot of land in Middleborougb, containing about thirty acres, formerly owned by Isaac Barker, an Indian, who died more than forty-five years before the al.eged trespass was committed ; that the plaintiff’s father had been in the possession of the locus from the time of, or soon after the death of Isaac Barker, until about the year 1830, when he died, having devised the locus to the plaintiff; that the plaintiff had occupied it ever since; and that the defendants entered thereon, as the servants of Jane Barker, an' Indian woman, who claimed it as heir of her uncle, Isaac Barker, he having left no lineal descendant.</p> <p>There was no evidence of any entry by Jane Barker, or any one under her, before the entry by the defendants.</p> <p>A verdict was returned for the plaintiff.</p> <p>If the Court should be of opinion that the title to the land was in Jane Barker, and that she had a right to enter thereon, at the time of the alleged trespass, a new trial was to be granted ; otherwise, judgment was to be rendered on the verdict.</p>

Case to recover damages for the non-performance of a contract. The action was tried in the Court of Common Pleas, before Strong J. The plaintiffs produced in evidence a writing in the following words : “W. H. Hawkins & Co. Bought of William H. Chace, 20 Bbls. flour at 5¿ ..... $ 110. Recd pay'. February 24, 1835.” This bill of parcels was not written nor signed by the defendant.

This was trespass for an assault and battery alleged to have been committed by the defendant upon the plaintiff, who was under the defendant’s guardianship as a spendthrift. *n the Court of Common Pleas, the defendant having pleaded in abatement to the action, that it was brought by the ward in his own name, the plea was adjudged to be bad. The defendant excepted.

<p>¿.n action sounding in tort may be maintained against a municipal corporation.</p> <p>A municipal corporation may t>e liable in an action of the case, for an act which would warrant a like action against an individual, provided that such act ie done by the authority of the corporation, or of a branch of its government invested with jurisdiction to act for the corporation upon the subject to which the particular act relates, or that after the act has been done, it has been ratified by the corporation by any similar act of its officers.</p> <p>As a general rule, a municipal corporation is not responsible for the unauthorized and unlawful acts of its officers, though done colore officii; it must further appear, that the officers were expressly authorized to do the acts, by the corporation', or that they were done bona fide in pursuance of a general authority to act for the corporation, on the subject to which they relate, or that, in either case, they were adopted and ratified by the corporation.</p>

<p>Where the declaration in an action of trespass contained but one count, which was for breaking and entering the plaintiff’s close and taking and carrying away his goods, it was held, that the plaintiff might be allowed to amend by filing a count simply for the same taking and carrying away of the same goods.</p>

<p>Action on the case against a constable, for neglecting to levy an execution in favor of Donham against one Pray, upon goods attached on the original writ against Pray.</p> <p>At the trial it appeared, that immediately after the attach ment, Wild and Donham were talking about getting a keeper, when Wild requested Donham to take charge of the property. This he declined doing. Wild then requested him to name some person whom he would be willing to trust with the property ; whereupon Donham named one Simeon Cushing. The goods were then committed by Wild into the charge of Cushing, who gave Wild a writing as follows : “ According to Isaac Donham’s order, I, Otis Wild, do hereby anpoint Simeon Cushing to take charge of eighty-eight pair of t oots, which the said Cushing promises to deliver to said Donham the creditor, or the officer, who have attached said boots, at their demand. (Signed,) Simeon Cushing.” This was read m Donham’s hearing.</p> <p>The defendant introduced evidence that Cushing was poor and unable to pay any thing.</p> <p>The plaintiff objected to this evidence as irrelevant, but it was admitted.</p> <p>The defendant also introduced evidence, that Pray, in a few days after the goods were committed to Cushing’s charge, sold them by auction and applied the proceeds to the payment of another creditor.</p> <p>Upon these and other facts in the case, or such of them as were admissible in evidence, a nonsuit or a default was to be entered, as the Court should direct.</p>

<p>This was an action of debt on a bond, dated August 11th, 1836. The case was tried before Morton J.</p> <p>The condition of the bond was, that the defendant should, upon the request of the plaintiff on or before the 1st of September, 1836, convey and assure unto the plaintiff certain tenements and water privileges situate in Braintree, known by the name of Welch’s chocolate-mills, “ together with his exclusive right and art or secret manner of making chocolate, and all information pertaining to his said manner of making chocolate, with all movable furniture, apparatus and utensils, with the privilege of using the pans as they now are and continuing the same, by good and sufficient deed of warranty, freed and discharged from all incumbrances whatsoever,” the plaintiff having first paid or secured to the defendant the purchase money, to wit, $ 2000 on the delivery of the deed and § 7500 in eight annual payments as specified in the bond.</p> <p>After the execution of the bond, three other persons agreed with the plaintiff to associate themselves with him in the purchase, and it was verbally agreed by the plaintiff and defendant, that the conveyance should be made to the plaintiff and his associates. On the 1st of September the plaintiff and his associates, and the defendant, convened at Boston for the purpose of completing the contract set forth in the bond. A tender of $ 2000, and of security for the balance of the purchase money, was duly made to the defendant, and a conveyance conformable to the condition was demanded of him. The defendant thereupon tendered a deed to the plaintiff and his associates, of the defendant’s mills, machinery, tools and fixtures, which was objected to, and he was requested to make a conveyance of his right or art of making chocolate, in the words of the bond. This he refused to do, but said that he would communicate his secret manner of making chocolate and all he knew about it, but that he would not bind himself not to communicate it to others ; stating that he had no exclusive patent or right, and that the plaintiff knew this at the time of the making of the bond. The defendant then returned to his home in Braintree. In the afternoon of the same day the plaintiff went to the defendant’s house, and again tendered him $2000 and the security which he had tendered at Boston, having previously informed the defendant that the plaintiff’s associates had declined to be further concerned with him in the purchase, and also demanded of the defendant a conveyance to the plaintiff alone, according to the condition of the bond. The plaintiff offered to have such a conveyance written, or to wait till the next morning for the defendant to procure one to be written. The defendant refused to give any other deed of the real estate than that which he had offered in Boston. That deed he again tendered to the plaintiff, and also a deed as follows : “ Know all men See. that I, Jonas Welch, of Braintree, in consideration of the contract executed between me and John Vickery, and in compliance therewith, do hereby convey and assure to said Vickery, his representatives and assigns, my exclusive right and arts or secret manner of manufacturing chocolate ; hereby declaring, however, that I have no patent or other exclusive right or arts except what I have gained by my skill and experience, and never have professed or claimed to have any other ; and I never have, and do not hereby even impliedly covenant not to communicate the results of my experience to others.” He said that he could give no other instrument, and that he acted under advice of counsel. It appeared that two or three other persons had knowledge of the defendant’s secret art of making chocolate, but that he had exacted an oath or a bond of them, not to divulge it while he should continue in the manufacture.</p> <p>The cause was withdrawn from the jury, by consent of parties. If on these facts the whole Court should be of opinion, that a breach of the condition of the bond was proved, for which the defendant was liable, he was to be defaulted, and such a hearing to be had as to damages, as the Court should order.</p>

<p>Assumpsit to recover the balance of the pay for five months’ labor performed by the plaintiff as a hired man on the defendant’s farm.</p> <p>At the trial in the Common Pleas, before Strong J., the defendant introduced evidence that the plaintiff made a special contract to labor "for him for the term of six months ; and that the plaintiff voluntarily left his service before the expiration of the term, without his leave or consent. The plaintiff contended, that if these facts were proved, still he was entitled to recover what his services were reasonably worth, deducting any damages which the defendant sustained by reason of the plaintiff’s leaving his service within the time. But the court instructed the jury, that if the evidence reasonably satisfied them that such a contract was made, and that the plaintiff voluntarily left the defendant’s service within the six months without his leave or consent, their verdict should be for the defendant. The jury found a verdict for the defendant. To this instruction the plaintiff excepted.</p>

This was a complaint made to a justice of the peace by Kingsbury, as colonel of a regiment in the militia, against Doane, a private in the company in Cohasset, for disobeying an order to warn the company to meet on the 3d of October, 1836, for the purpose of electing a captain, lieutenant and ensign, whereby he had incurred a penalty of not less than $ 20, nor more than $ 100.

<p>Assumpsit. The declaration alleged, that “the said Merchants’ bank, on the 8th of January, 1835, by their note of hand commonly called a bank bill, for value received promised to pay M. Morton or bearer on demand $ 100 ; and also &c. (describing in like manner two other bills, each for $100.) And the said Churchill avers, that on the 23d of June instant (1837) he was the true and lawful bearer of the three aforeméntioned notes or bank bills and justly entitled to demand and receive payment of said notes or bills, and that on said 23d day of said June he did cause said notes or bills to be presented at the usual place of business of said banking incorporation, and within the usual hours of their doing business, and payment of said three notes or bills to be of them requested, which payment the said president, directors and company of the Merchants’ bank then and there refused to make, by means of all which and of the law or statute in such case made and provided, the said president &c. of the Merchants’ bank became liable and promised the said Churchill to pay him the said $300, and interest therefor at the rate of two dollars for each hundred dollars and for each month from the said 23d of June.’’</p> <p>The defendants demurred.</p>

This was a writ of entry, wherein the demandant sought to recover possession of certain real estate under a deed of mortgage from Thomas S. Mann to one Cobb, dated June 19th, 1821, recorded on the same day, and assigned by Cobb to the demandant in January 1823. The mortgage was conditioned for the payment of three promissory notes made by the mortgagor, dated in 1821, payable to Cobb or order, on demand, with- interest.

<p>The petitioner sets forth, that he holds in common with Penniman and with one Peter Dyer, an undivided part of three parcels of land in Braintree, and prays for partition of the same. Penniman pleads that the petitioner does not hold the lands in common, in the manner and form he has alleged; on which issue is joined. Trial before Morton J.</p> <p>It appeared that one Ezra Penniman, deceased, was formerly the owner of the three parcels of land ; that Asa Penniman was one of the heirs of Ezra and entitled to one third of all the estate of which Ezra died seised ; and that the petitioner duly levied an execution on all the right which Asa had in the premises as an heir of Ezra.</p> <p>The respondent proved that Ezra, in his lifetime, mortgaged one of the parcels, that his right to redeem the same was duly sold to satisfy an execution against him, and that the purchaser of the equity lawfully conveyed all the right he acquired by the purchase to the respondent.</p> <p>The respondent also produced a deed from the clerk of the District Court of the United States, dated February 24th, 1820, purporting to convey one undivided half of certain real estate of Ezra to Peter Dyer, for the nonpayment of the United States direct taxes assessed upon Ezra in 1816, and it was proved that the other two parcels described in the petition were included in that deed. He also produced evidence that Ezra Was assessed in 1816, for lands in Braintree, $ 7‘91, and for lands in Milton, 30 cents ; and that one undivided half of all the real estate for which he was thus assessed was sold in 1817, by public auction, by a deputy collector, for the nonpayment of the tax. It was admitted that the lands sold were capable of being divided.</p> <p>There were many other facts in the case, which became immaterial.</p> <p>After the evidence was all m, the petitioner moved for leave to amend by striking out one of the parcels described in his petition, but the respondent objected to the amendment.</p> <p>Judgment was to be rendered on a nonsuit or default, as the Court should decide.</p>

Assumpsit to recover back the amount of certain town and county taxes assessed upon the plaintiffs by the town of Gloucester, for 1830 and the four succeeding years. The plaintiffs were incorporated by St. 1826, -c. 123; which was made a part of the case. The fund in their hands consisted of money at interest.

<p>In the case of simultaneous attachments of the same parcel of land by two creditors of the owner, if one of the creditors levies on the whole land by metes and bounds» the other may levy on an undivided moiety or such undivided proportion, not exceeding a moiety, as may be necessary to satisfy his execution.</p>

This action was entered in the Court of Common Pleas at the December term 1836. Uriah S. Smith, the principal defendant, was defaulted, and the trustees filed answers disclosing property in their hands. Ammi Smith was permitted to become a party to the action, upon his claiming that the property belonged to him and not to Uriah.

<p>On a case stated it appeared, that this action was covenant broken, brought upon the following contract, dated the 15th of March, 1833 :</p> <p><£ By this agreement made and concluded this day between Oliver G. Lane, of Gloucester, &c. on one part, and Ebenezer Stedman, William B. Titcomb, Edward Titcomb junior and Samuel Titcomb, all of Newburyport, &c. on the other part, to say, the said Oliver G. Lane has bargained and sold unto the above named parties in the second part the hull of a new ship he is now building in Gloucester, Squam, of about 330 tons, more or less, for the sum of $38-50, government tonnage $ 1000 in advance on signing this agreement, $1000 m twenty days from date, and the residue of one half of the whole amount that the hull of said ship may amount to, at the above rate, in three days after said ship is launched and completed in manner agreed on, and the other half part in three payments, one third in three months, one third in six months, and one third in nine months, from the time said parties of the second part receive and commence rigging said ship. And the said Lane agrees to finish the said ship in a faithful and workmanlike manner; and agrees to furnish the wheel, capstan rim, and top or head, and one of Nicholson’s patents for windlass, gilt billet-head, and common trail-board and carved moulding for the stern, not exceeding $ 30 in cost to said Lane. And further, said Lane agrees to finish between decks with twelve iron knees and six wooden ones, and paint the sides of the ship inside and out with two coats of paint above the bottom plank, and either pay the upper deck with varnish, or furnish enough to do it. Cabin to be finished with mahogany in a neat and snug style, and varnished with two coats of varnish (copal). All the materials used on the hull of said vessel shall be good and fitting a first rate ship of the kind. Every part of the hull to be complete, bottom caulked and graved. The contracting parties hereby mutually bind themselves, their heirs and assigns, to the full and faithful performance of the above contract, in the penal sum of $ 2000.”</p> <p>At the time of the execution of the agreement, the ship stood upon the stocks or ways, in the possession of the defendant, in an unfinished state. She was framed and planked on the outside, and nearly all the treenails driven, which were at any period in the course of her construction driven. She was celled on the inside, but her air-streaks and plank-shears were left open and her upper and lower decks were laid, and the spiking of said ceiling was done, and that of the decks was in progress, but not completed. In the stern, the lower deck was laid flush' with one of the transoms, and the stern was wholly planked on the outside and not on the inside, nor was the cabin work done of the after bulkheads built. The cauking.of the ship was just begun. All the bolts were driven, up to the bilge-streaks, and the principal part of the woodend bolts were driven. The buttbolts above the bilge-streak were, for the principal part, not driven. The rudder was made and fastened together, and Samuel Titcomb saw it. The rudder-braces were not made and were not attached to the ship. The ship remained on the stocks in the hands of the defendant or his servants, and in'the process of construction, until the 3d of May following the date of the agreement, when she was launched.</p> <p>On the day before the agreement was made and executed, Samuel Titcomb went to Gloucester for the purpose of seeing the ship ; and he inspected her in the presence of the defendant’s agent. On the next day this agent went to Newburyport to see the parties, and after a conversation the agreement was made and executed by the parties to it, at Newburyport.</p> <p>The question submitted to the Court concerned the construction of the agreement. If the Court should be of opinion, that the covenants extended to the whole ship, as well what had been done, as what remained to be done for the finishing and completing her at the time when the agreement was made, then a trial was to be had by a jury ; and if they should be of opinion, that the covenants applied only to what remained to be done on the ship, then the case was to go to assessors or referees.</p>

<p>Where the plaintiff put his apprentice into the service of another person exercising the plaintiff’s trade, for a short time, on wages to be paid to the plaintiff, and during that period the apprentice absconded and went to sea, it was held, that by such transfer of the apprentice the plaintiff’s right to his services was suspended, and that it did not revive upon his absconding, so as to entitle the plaintiff to his earnings on the voyage.</p>

<p>Assumpsit by the plaintiff, as the settled minister of the North Parish in Haverhill, to recover the income, for 1835, of the ministerial fund of that parish. Trial before Shaw C. J.</p> <p>It appeared that the North Parish in Haverhill and the Congregational Society in Plaistow are united, for many purposes, and have but one meetinghouse, which is within the limits of Plaistow ; and that the plaintiff officiated in this meetinghouse from the time of his settlement to the time of the trial.</p> <p>The plaintiff introduced certain votes from the parish records.</p> <p>January 15th, 1831, voted, to unite with the Congregational Society in Plaistow, to invite Rev. Samuel H. Peckham to become their minister.</p> <p>Voted, to appropriate the income of the parish fund for his support.</p> <p>Voted, to choose a committee to unite with the society in Plaistow, to engage the Rev. S. H. Peckham to be their minister.</p> <p>On the 3d of February, 1831, the respective committees of the parish in Haverhill and of the society in Plaistow, joined in a communication to the plaintiff, in which they “ agree to give and promise to pay the said Peckham annually for his services as minister aforesaid, the whole income of the parsonage funds belonging to the said parish and society, which income shall be $ 285 annually, also the free use and occupancy of their parsonage lands and buildings,” and that he shall receive fp60 from the society ; “and this contract shall be binding on said parish and society, until the said Peckham shall be dismissed by a mutual ecclesiastical council.” On the 5th of February the plaintiff accepted these proposals. It did not appear that they were acted upon distinctly by the parish. The plaintiff was installed in the same month of February.</p> <p>At a meeting on the 9th of April, 1831, on a warrant to see “ if the parish will approve the doings of their committee in settling a minister without the consent of the parish, and to see if the parish will expend the income of their fund,” it was voted “ to appropriate the income of the parish fund to the support of Rev. S. H. Peckham ” ; and “ to approve of the doings of the committee in settling Rev. S. H. Peckham.”</p> <p>Ata meeting on the 10th of April, 1832, it was voted to appropriate the income of the parish fund to the support of the plaintiff.</p> <p>At a meeting on the 10th of April, 1833, it was voted, “ not to raise money the present year ”; “ not to appropriate the income of the ministerial fund to the support of Rev. S. H. Peckham ” ; and “ to dissolve the ministerial connexion which is represented to exist between the North Parish in Haverhill and Rev. S. H. Peckham.”</p> <p>On a warrant for a meeting on the 20th of March, 1834, containing “ Article 9. To act on the petition &c. to see if the parish will vote to appropriate the income of the parish fund for the current municipal year ending in April,” and an article, “ To see how much money the parish will raise and how it shall be appropriated,’Mt was voted, “not to raise money the year ensuing,” and “ to pass over the 9th article in the warrant.” " - "</p> <p>At a meeting on the 27th of March, 1835, it was voted “to raise no money ” ; and to appropriate two thirds of the income of the parish fund for preaching, the present year.”</p> <p>At a meeting in 1836, on a warrant containing an article, “ To see what money the parish will raise, and how it shall be collected and appropriated ”, it was voted to pass over this article.</p> <p>John Brickett junior testified, that he had been parish treasurer for the last three years, and that he still held the office ; that no money was paid for supplies of preaching for the years 1834, 1835 or 1836 ; and that since he had been parish treasurer no part of the income of the ministerial parish fund had come to him as treasurer. He verified a written demand made on him by the plaintiff on April 1st, 1836, for $ 285, as one year’s income of the fund, and for $ 40, as one year’s rent of the parsonage, and requiring him to call on the treasurer of the fund for the income.</p> <p>The plaintiff also proved a demand made on the treasurer of the ministerial fund to pay the income to the plaintiff, or to the parish treasurer for the benefit of the plaintiff.</p> <p>The plaintiff received the income of the ministerial fund to 1833, but not since that year.</p> <p>It was proved that this fund consisted chiefly of the proceeds of the sales of lands held by the parish until 1823, and sold in 1823, in pursuance of St. 1822, c. 77, by which the defendants were incorporated ; that at the time when that statute was enacted, there was no settled minister in the parish; and that the society in Plaistow have some funds.</p> <p>A nonsuit was entered, subject to the opinion of the whole Court.</p> <p>The statute of 1822, which was made a part of the case, provides, in § 4, that the trustees may hold property to a limited amount, “ in trust, for the support and maintenance of the congregational gospel minister of said parish ” ; and during the settlement of “ such ordained minister ” the whole or any part of the income of the fund may be appropriated “ to the payment of the salary of the minister, and may be placed in the hands of the parish treasurer, annually, for that purpose ; provided the parish, at a legá. meeting, shall vote the appropriation ; and if the parish do not, during said settlement, annually appropriate the whole or any part of said fund, for said use of the minister, or ministry, then the same, or any part thus unappropriated, shall annually be added to the principal or capital fund ” ; — in § 6, that the fund shall be unalienable and the principal “ shall never, in any part, be expended, but always be kept entire ”; provided nevertheless, that whenever the annual income shall exceed $ 450, the parish may appropriate the surplus to other parochial purposes than the payment of the minister ; and in § 9, that the trustees shall be amenable to the parish for negligence or misconduct in the management or disposition of the fund, whereby the same shall be impaired, and the inhabitants of the parish may have an action against the proper persons of the trustees for such negligence or misconduct, and any sum recovered as damages therefor shall be for the benefit of the fund and be paid accordingly.</p>

<p>Tfiis was an action to recover a dividend declared by the Métrimack Bank, cri the 5th of October, 1835,</p> <p>A,On"á case stated it appeared, that ever since the 6th of April, 1835, the plaintiff has been the owner of three shares in the bank and entitled to the dividend thereon, unless the following facts show that he was divested of the shares. The dividend was duly demanded of the cashier.</p> <p>On the 9th of April, 1831, the plaintiff resided in Haverhill, but not within the limits of the North Parish. The North Parish was a territorial parish. The plaintiff removed into that territory in June 1832. This was not the oldest parish in Haverhill. Some persons residing in the North Parish were not members thereof, and some. members thereof were not residents therein. At a meeting of the parish on the 9th of April, 1831, it was voted, “that the clerk grant Thomas N. Chase a certificate as a member of said parish.” The application for his admission was not made by the plaintiff himself, but by one Brickett. The plaintiff was present at the meet ing, and has since that time and before the seizure of his bank shares, attended the parish meetings and voted as others, members of the parish. He was chosen trustee of the ministerial funds in July 1833, and has acted as such trustee.</p> <p>At the April term 1835, of this Court, Samuel H. Peck-ham recovered a judgment against the North Parish in Haverhill, for $350-17 ; (see 16 Pick. 274;) on which an execution was issued, and was delivered by Peckham to Charles L. Bartlett,, a deputy sheriff, to be executed. A demand of payment was made by the officer on the treasurer of the parish, but was not complied with. The parish had ministerial funds and parsonage lands, but no corporate property on which the execution could be satisfied. Its meetinghouse, which stands in the adjoining town of Plaistow, in New Hampshire, is very old, and of little value.</p> <p>The officer levied the execution and made a return thereon, dated the 9th of July, 1835, that by virtue of the execution he seized three shares in the stock of the Merrimack bank, as the property of Chase, being an individual member of the North Parish in Haverhill, and gave him notice in writing &c., that the shares would be sold to satisfy the execution and all costs and charges, to the highest bidder, on the 8th of August, at 2 o’clock, P. M., at the auction room &c. in Haverhill, and also gave public notice of the sale by posting up notifications thereof in two public places in the town and in one public place in each of the towns of Bradford and Plaistow, being towns adjoining Haverhill, thirty days before the time appointed for the sale, and also caused an advertisement thereof, expressing the time and place of sale and against whom the execution issued, to be published three weeks successively before the “ time ” appointed for the sale, in the Essex Gazette, a newspaper printed in Haverhill; that at the time and place appointed he sold the shares, by public auction, to one Corliss, for $505-50, and therewith satisfied the execution and all fees and charges of sale, and deposited the balance with the cashier of the bank, to be passed to the credit of Chase. Among the charges were, for “ copy of execution to cashier, 50 cents; copy of execution and return, 75 ; for recording do. 75.” It was agreed that the return might be considered as amended by inserting therein a statement, that at the time of the alleged seizure of the stock, the officer left with the cashier an attested copy of the execution, and within fourteen days after the sale he left with the cashier a copy of the execution and return, and paid the fee for recording it, provided however, that if the Court should be of opinion that the officer ought not to be permitted, upon a proper application to them, so to amend, upon satisfactory evidence of the truth of these allegations, the Court should decide the cause as if the return had not been amended.</p> <p>The defendants issued certificates of the shares to Corliss, the purchaser, and paid him the dividend claimed in this action.</p>

<p>Assumpsit to recover the value of the plaintiff’s services, as a mariner, on board the whaling ship Samuel Wright.</p> <p>By an agreed statement of facts it appeared, that the plain tiff, in June 1833, being then a minor of the age of fourteen years, shipped himself, with the consent of his mother, in the Samuel Wright, as a mariner, and continued to perform his duty, as such, until the 21st of May, 1835, when be left the ship, then lying at Talcahuana, and did not return to his duty ; and that the ship returned home with a cargo of oil.</p> <p>The plaintiff was to be nonsuited or the defendant defaulted, according to the opinion of the Court. If the defendant should be defaulted, damages were to be assessed by an auditor, unless the parties could agree upon the amount.</p>