Volume 37 — Massachusetts Reports

<p>In an action against an heir, the plaintiff* must bring himself strictly within St 1788, c. 66, and the declaration must show, that administration has been taken out on the estate of the ancestor, that the demand was not due, and payment of it could not have been claimed and enforced, within four years after the grant cf administration, and that the action was brought within one year after payment of the demand could by law be enforced.</p> <p>The fact of the plaintiff’s having been under the disability of infancy during the time tea* ¿te catate of the deceased was under administration, will not prevent h'i slaim from being barred by the lapse of the four years.</p> <p>Whether an action. accruing on the contract of the ancestor can be maintained against his heirs jointly, qucere.</p>

<p>Assumpsit by the plaintiff, an inhabitant of New York, against the defendant, a merchant of Boston, on a contract alleged to have been made in October 1835, by which the defendant agreed to sell to the plaintiff two hundred shares, with all the earnings thereon, in the capital stock of the Collins Manufacturing Company, a corporation established in Connecticut, at $10-80 per share, the par value being $10 per share. The object of the suit was to recover $300, being the amount of a dividend of 15 per cent on the two hundred shares, declared on the 7th of October, 1835, and payable on the 15th.</p> <p>At the trial, before Shaw C. J., Nathaniel Curtis junior, ot the firm of Curtis & Leavins, being called as a witness by the plaintiff to prove the contract and the breach, the defendant objected to any parol evidence of the contract, because die contract was reduced to writing, and he produced a memorandum as follows, dated Boston, Oct. 14, 1835, directed to the defendant and signed by Curtis & Leavins: — “Sir, When you will furnish the certificate of 200 shares in the Collins Manufacturing Company to Mr. Samuel T. Tisdale, of New York, we hereby agree to pay you for the same at 108 cents per dollai or 8 per cent advance on the par amount of ten dollars each.” But it was ruled, that this paper was not to be considered as the contract of the defendant to sell, but of the plaintiff by his agents to pay ; that if the contract of the defendant to sell was not reduced to writing, the objection to the parol evidence could not prevail.</p> <p>The witness testified, that at the request of the plaintiff he applied to the defendant about the 10th of October, 1835, in order to ascertain whether he would sell his shares ; that the defendant said he was disposed to sell them at a fair price ; that subsequently the witness offered him the par value ; that the defendant said he would not sell at that rate, and that he had been recently informed that there would probably be a dividend of 10 per cent in December ; that the witness took the refusal of them at $10-80 per share, until he could hear from New York ; that having received a letter from the plaintiff, dated October 13th, he called on the defendant and asked him whether in offering the shares he intended to include all the earnings, and the defendant said yes, all that belongs to them, all that they have earned ; that the witness read to the defendant the letter of October 13th, in which the plaintiff says he will take the stock at $10-80 cash, all earnings or dividends of the company up to the time of sale to be included ; that the defendant wrote a letter to his agent at Hartford, instructing him to transfer the shares into the name of the plaintiff, and send the certificate to the defendant, and the defendant handed the letter to the witness to forward, which he did ; that the defendant said he did not know the plaintiff, and he thought, as the shares would be transferred, he ought to have something to secure him, to which the witness assented, and the defendant wrote the memorandum which the wit ness signed, agreeing to pay him the money ; that after sufficient time had elapsed for an answer, the witness called on the defendant, and at that time both the witness and the defendant had received information that a dividend of 15 per cent had been declared upon the shares ; that at subsequent interviews the witness demanded the certificate of stock with an authority to receive the dividend, and was ready thereupon to pay the money, but the defendant declined giving the authority to receive the dividend ; that some weeks after-wards, and after this action had been commenced, the defendant called on the witness for the money and threatened to sue him upon the contract which he had given for the plaintiff, if be did not pay it, whereupon the witness took the certificate and paid the money, but under an express declaration that it was not to prejudice the claim of the plaintiff for the dividend.</p> <p>The question of fact was left to the jury, whether the bargain made by the defendant for the sale of the shares included all dividends then due or growing due, with directions, if it did, to find a verdict for the plaintiff; otherwise to find a verdict for the defendant.</p> <p>A verdict was returned for the plaintiff; which the defendant moved to set aside : 1. Because parol evidence was admitted to add to and vary a written contract made subsequently to the conversation and letters referred to ; 2. Because the contract set up was within the statute of frauds, being a contract for the sale of goods, wares or merchandise for the price of fifty dollars or more, under which, at the time of action brought, there had been no acceptance of the same or any part thereof by the purchaser, nor any earnest or part payment made, and so was incapable of proof otherwise than by memorandum in writing signed by the defendant or his agent.</p>

<p>This was an action of assumpsit, brought in the name of Gibson, but for the benefit of Shepherd Plympton, to recover the amount of a draft, dated New York, October 23, 1832, in which, for value received, Gibson requests the defendant to pay to Plympton or order $175-33, “as my income becomes due.”</p> <p>Upon a case stated it appeared, that the draft was presented to the defendant on October 26, 1832, but that he refused to accept it, on the ground that the fund referred to could not be assigned or pledged for the debts of the drawer, but was devised to the defendant on a personal trust that it should be paid to Gibson personally, and applied solely to his maintenance. His habits were such as required great prudence in the disbursing of money to him, and he was often in a state of suffering and want by reason of his improvidence.</p> <p>The fund was created by the following clause in the will of Susan Gibson, Gorham’s mother : — “ The residue and remainder of my estate, both real, personal and mixed, &c. 1 do give, devise and bequeath to Josiah P. Cooke, Esquire, to have and to hold to him, &c. to and for the following uses, trusts and purposes, and none other, that is to say, in trust to collect and receive from time to time the rents, issues and income of my said estate, &c., then to pay over and divide equally the net proceeds once a quarter to and among my said children, (naming Gorham and six others,) for and during the terms of their natural lives.” The will further provides, that on the decease of any child, his share shall go to his issue, if any, otherwise to the surviving children and the issue of any deceased child ; and that no part of the real estate shall be sold, unless to pay legacies, so long as any of the children shall be living ; and that at the decease of the last survivor of them, the same shall be equally divided among their legal heirs and representatives.</p> <p>The will was proved May 11, 1829. The defendant was appointed sole executor and trustee, and took upon himself both trusts. He has, according to the provisions of the will, stated his account of the rents and income, quarterly, and passed one seventh part thereof to the credit of Gorham Gibson, his share being on an average about 150 dollars a year. This has been paid to him personally, or applied to his maintenance. The last settlement made with him is dated August 20, 1835. Since the first presentation of the draft the sum of $479’49 has been in this way passed to the credit of Gorham Gibson, and paid over and applied by the defendant as above mentioned.</p> <p>The draft was a second time presented to the defendant on October 17, 1835, and notice was given him to retain funds sufficient to meet it.</p> <p>On March 16, 1836, the draft was again presented, and on March 19th this suit was commenced. At that time the defendant had in his hands a balance of $46'63 due to Gibson.</p> <p>Plympton’s power to prosecute the suit was duly called for, and it was admitted that he had no other authority than what was implied from his being the holder of the draft.</p>

<p>Assumpsit on a promissory note, dated September 15, 1829, for $695-78, payable to the plaintiffs, and signed by the defendant as treasurer of the Merrimac Stage Company.</p> <p>In the Court of Common Pleas the defendant pleaded in abatement, that the promise was made by the defendant jointly with eighteen other persons named in the plea, doing business as a joint stock company under the ..ame of the Merrimac Stage Company.</p> <p>The plaintiffs thereupon moved for leave to amend then-declaration, by inserting therein as defendants the persons named in the plea, and declaring against them jointly with Nevers, and that the court would issue a new writ by which they might be summoned into court, in the manner provided by the statute.</p> <p>The new writ haying been issued, such of the new defendants as were summoned appeared and filed a brief statement of their defence, in which they alleged that the promise was made by them jointly with certain other persons named, and therefore that the writ ought to be quashed.</p> <p>The plaintiffs, by leave of court, discontinued against all the defendants except Nevers ; and to his plea in abatement they replied, that the promise was not made by him jointly with the other persons named in his plea, and tendered an issue to the country ; which was joined by the defendant.</p> <p>On a trial of this issue in this Court, before Wilde J., it appeared that the Merrimac Stage Company was an unincorporated joint stock company ; and the defendant offered in evidence the proceedings in the Common Pleas, by which the new defendants were summoned in, contending that tnese proceedings were an admission on the part of the plaintiffs, that the new defendants were joint contractors with the defendant Nevers, and operated as an estoppel on the plaintiffs to deny that fact. The judge disallowed the evidence as an estoppel, but permitted it to be read to the jury, leaving them to judge of its weight and effect.</p> <p>The defendant offered evidence tending to show that the stage company was composed precisely of the persons named in the plea ; and evidence to the contrary was produced by the plaintiffs.</p> <p>The defendant contended, that the plea would be maintained by proving that all the persons named in it were members of the company, even if there were other persons not named, who were also members.</p> <p>But the judge instructed the jury, that in order to maintain the plea, they must be satisfied that the persons named in it composed the company when the note was given ; that if one named in it was not in the company at that time, or if one not named in it was then in the company, the plea was not proved, and their verdict must be for the plaintiffs, that the defendant did' not promise jointly with the persons named in his plea in abatement.</p> <p>The jury returned a verdict for the plaintiffs accordingly.</p> <p>The defendant moved for a new trial, on the ground that the above instructions to the jury were erroneous ; and likewise because the judge ruled that the statute abolishing special pleading did not affect the questions raised by this plea in abatement.</p>

<p>Bill in equity. The bill alleges, that John Pratt, the father of Eleanor Purdie, one of the complainants, by his will, devised and bequeathed the “ residue ” of his property, both real and personal, to his children, to be equally divided between them ; that by a codicil, all that portion of his estate which in his will was devised or bequeathed to his daughter Eleanor, he devised and bequeathed to his son George Pratt, one of the defendants, “ his heirs and representatives, in trust,” as follows : — “If my said daughter Eleanor survives me, her said husband being alive, to invest and re-invest the same in stocks, or such other safe securities as the said trustee may from time to time deem beneficial, and the income thereof, together with two hundred dollars annually of the principal, to pay over to my said daughter Eleanor for and during her natural life, taking her sole receipt therefor sepa-ate from her said husband ; and from and after the decease of my said daughter Eleanor, to pay and transfer the whole of said trust fund-to her children and grandchildren, if any, otherwise to her brothers and sisters and their heirs ; provided, however, that if my said daughter .Eleanor shall survive her said husband, then and in that event to pay over and transfer said trust fund to her for her sole use ; ” that George Pratt declined to accept the trust, and thereupon Whitney, the other defendant, was appointed trustee in his stead ; that one of the parcels of real estate devised was a messuage in Charlestown, an undivided interest in which vested in Whitney as such trustee for the benefit of Eleanor Purdie ; that by the true construction of the will, the trustee was bound to hold, manage, lease and improve such estate, and pay over the income thereof, to Eleanor, during her life, and in case of her surviving her husband, to convey the same to her in fee ; and that the trustee, in violation of the trust, sold such undivided interest to George Pratt in fee simple ; and the bill prays that George Pratt may be compelled to reconvey, and account for the intermediate rents and issues.</p> <p>The defendants answer, that all the devisees except George Pratt, to whom a portion of the same messuage had been devised in tryst for one Susan Thompson, came to the conclusion that it would be clearly for their interest to sell their shares in the messuage to George Pratt as trustee, at the rate of $4000 for the whole messuage ; that Whitney did, with the other devisees, sell and convey their shares to George Pratt, and that Whitney has invested the proceeds of the undivided portion so by him conveyed, in safe securities, in trust to dispose of' the income and principal thereof as directed in the will and codicil.</p> <p>The case was submitted to the decision of the Court, without argument.</p>

<p>Bill in equity, brought by Lewis Mills and Charles Bradley against John C. Gore and Josiah Quincy, junior. The bill alleges, that on or about April 19, 1836, Gore offered to sell a messuage to Mills for the sum of $8,500 ; that Bradley informed Mills that he (Bradley) held a certain promissory note, made by one H. D., dated June 10, 1835, for $9,625, payable in three years from date with interest annually, to one G. H. D., and indorsed in blank by the payee, and that if Mills could negotiate the note to Gore, he might take it and therewith purchase the messuage for Bradley, at the price above named, and take Gore’s promissory note for the difference between the price of the messuage and the amount due 01 the note of II. D., and that Bradley would after-wards sell the messuage to Mills, or compensate him for his agency ; that Mills made a proposal to Gore accordingly, and that on or about the 27th of April, Gore called on Mills at his store in Boston, and informed him that he (Gore) had concluded to accept the offer ; that on the same day Gore returned to Mills’s store with a deed of the messuage, and executed and delivered the deed to Mills in the presence of Jonathan D. Wheeler, Luke Harrington, junior, and John Wheeler, junior, and that Mills then gave to Gore the note of H. D., and Gore signed and delivered his own note to Mills for $1,633-50, payable to Mills or bearer in six months with interest; that immediately after the execution and delivery of the deed, Mills went with Gore to the office of Quincy, who was a justice of the peace, for the purpose of having the deed acknowledged by Gore; that Mills then produced the deed, which from the time of its execution and delivery had remained in his possession, and handed it to Quincy, in order that he might take Gore’s acknowledgment and certify the same ; that Gore accordingly acknowledged the deed, and Quincy made a certificate thereof and then placed the deed on a table or desk before him ; that Gore then informed Quincy of the sale and asked him his opinion of the note of H. D., and Quincy made some disparaging remark concerning it; that Gore took the deed from the table and refused to restore it to Mills ; that afterwards it was agreed by them to leave the deed and the two promissory notes with Quincy, until the next day) when they might be able to satisfy themselves of their legal rights ; and that on the next day Mills demanded of Quincy the deed and Gore’s note, but Quincy refused to deliver them to him. And inasmuch as the deed and note are withheld from the plaintiffs by Quincy, so that the same cannot be replevied, and the plaintiffs can have adequate remedy only in a court of equity, the plaintiffs pray that the defendants may make answer to all the matters alleged in the bill, and that Gore may be enjoined from selling the messuage, and that Quincy may be compelled to restore to the plaintiffs the deed and note of Gore.</p> <p>On motion of the plaintiffs, Quincy was enjoined not to part with the custody of the documents in his possession until the further order of this Court.</p> <p>Gore, in his answer, admits that he agreed to convey the messuage to Mills for $8,500, and receive the note of H. D. in payment, and to give his own note for the difference, relying on the representations of Mills that the note of H. D. was a first rate note and could readily be cashed at a small discount ; that he prepared a draft of a conveyance, and executed it at Mills’s store ; he denies that the deed was then, or at any time, delivered by him to Mills, or that he intended to deliver it, or that he did any act or spoke any words, expressing or intended to express, any intention to deliver il, or that Mills then delivered to him the note of H. D., or that any exchange or delivery of any papers or documents was then made or intended to be made by him and Mills ; he states that after he had signed the deed, and the witnesses had subscribed it, Mills took- all the papers, for the purpose of carrying them to the office of Quincy, where it had been agreed by Mills and Gore that they should go in order that the respondent might acknowledge the deed, and that the papers might be then and there delivered and exchanged ; that they proceeded to Quincy’s office, and that on their arrival Mills produced all the papers ; that while Quincy was writing the certificate, Gore asked his opinion of the note of H. D., and Quincy replied that he understood H. D.’s notes had been sold at a great discount, and presumed they might be bought for very much less than their face ; that he was greatly surprised at this, and expressed his astonishment to Mills that his representations were untrue ; that he said to Quincy, “ If you had not signed that certificate, I should not be bound to sellthat Quincy informed him that that would make no difference, and handed him the instrument.; that he (Gore) then placed the instrument before Mills on the table, and said, “ There is the deed, but if you take it up I shall feel much wronged by you that Mills did not take it up, but said he should not submit to imputations &c. ; that at no time at Quincy’s office did Mills, in the hearing of Gore, nor at any time before the filing of this bill, claim or sav that the instrument had been delivered or was ms property, but only that Gore had agreed to deliver it ; he admits that the papers were delivered into the custody of Q> incy, but says he does not recollect the terms on which Quincy was to keep them or deliver them up ; he says that he requested Quincy to deliver the deed to him, but that Quincy said he should do nothing to prejudice the rights of either party ; and he says that the representations of Mills respecting the note of H. D. were untrue, and .that he believes Mills knew that they were untrue.</p> <p>Quincy, in his answer, states that he does not know, of his own knowledge, what took place between Mills and Gore before they came to his office ; that he has been informed that the deed had not been delivered before they came to his office, and he believes the information to be true, inasmuch as Mills had the papers and Gore had not the note of H. D., and when Gore refused to deliver the deed, Mills did not assert or claim that it had once been delivered ; be details the transactions at his office, agreeing substantially with Gore’s statement of them ; he states that at the urgent request of Mills and Gore he consented to receive the papers, and Gore handed him the deed, and Mills handed him the notes of H. D. and of Gore, and a policy of insurance on the messuage in question ; he says that Mills remarked, that he left the papers in order to give Gore time to think about the matter, and he denies that Mills or Gore deposited them for any declared or definite purpose, other than the one above stated ; he says that on the next day, April 28, 1836, Mills and Gore came to his office, and Gore required the respondent to deliver to him the deed, and Mills requested him not to do so, — whereupon the respondent told them that if they could agree as to what he should do, he would comply with their request, but if they did not agree, he would keep the papers, until the Supreme Judicial Court directed him what to do with them ; he states that he received a letter from Mills demanding the deed, and that he refused to comply with such demand, because the papers were delivered to him by Mills and Gore, upon the trust and confidence, as he understood and believes, that he should keep the same and do no act to prejudice the rights of either of those parties, and he offers to bring them into Court for the benefit of such, party oi parties as shall appear entitled thereto ; he denies that the deed and note of Gore were withheld from Mills so that they could not be replevied, and alleges that he was always ready and willing to expose them to any process of this Court or of the Court of Common Pleas.</p>

<p>Writ of right. The writ contained two counts; the first, describing two parcels of land and alleging that within forty years the predecessors of the demandants were seised of the same in their demesne as of fee and right; the second, describing in the same words two “ other ” parcels, and alleging that within thirty years the demandants were seised of the same in their demesne as of fee and right.</p> <p>The tenant pleads in abatement of the writ and declaration, that the land mentioned in both counts is the same land, whereby it appears that the demandants demand the same land upon two several, different and inconsistent titles, which several demands by the law of the land cannot be joined in one and the same writ and declaration.</p> <p>The demandants demurred.</p>

<p>After pleading to the merijts it is too late for the defendant to object, that the writ was served illegally by arresting the defendant without an affidavit that he was indebted to the plaintiff.</p> <p>The plaintiff and F, merchants in Boston, having agreed to purchase together a Spanish ship, one moiety each, and having given to the vendor their respective notes for their respective moieties, the ship was delivered by the vendor to F, subject to F’s directions, with a power of attorney from the Spanish owner to make sale of her, it being the intention of the plaintiff and F that she should retain her Spanish character. F, as ship’s husband, repaired and fitted her out, charging his disbursements in an account with the ship, and consigned her to the defendant, a merchant in Havana, with authority to employ her and to sell her, stating to the defendant that one moiety was owned by the plaintiff and the other moiety by F, and directing the defendant to keep his accounts with the respective owners separate. The defendant employed the ship at Havana, and received her earnings and paid her disbursements, and sold her and received the proceeds. Before any account had been rendered by the defendant, the plaintiff failed, and made a general assignment of his property in trust for his creditors, to which F became a party ; and soon afterwards F failed, and made a like assignment, to which the plaintiff’s assignees became a party, there being other dealings between the plaintiff and F, besides those relating to this ship ; and each assignment contained a release on the part of the creditors, of all their demands against the assignor. It was held, that neither the plaintiff nor F took any legal title in the ship, but only an equitable interest, secured by the power of attorney ; that the plaintiff’s assignees therefore took only a chose in action in the plaintiff’s share of the ship, her earnings and proceeds; that consequently an action for such share was rightly brought by the assignees in the name of the plaintiff; that it was also rightly brought in the name of the plaintiff alone, without joining F ; that the release by the plaintiff’s assignees, to F, of all demands, did not divest the equitable interest of the plaintiff or of his assignees in the ship and her earnings ; and that the advances made by F as ship’s husband, did not give him a lien on the plaintiff’s share in the ship and licr earnings, nor entitle the defendant to retain the same as a set-off against a debt due from F to the defendant.</p> <p>The plaintiff’s assignees having made a demand upon the defendant, when he happened to be in Boston, to account to them for the plaintiff’s share in the earnings and proceeds of the ship, and the defendant having thereupon denied his liability to account with the plaintiff or his assignees, it was held, that the defendant, by such denial, had waived his right to object that no demand was made upon him at Havana.</p>

Debt on an administration bond, against Giles Lodge as principal, and two others as sureties, conditioned for the performance by Lodge of his duties as administrator on the estate of Mary Langdon. On the writ was an indorsement, stating that the action was brought for the use and benefit of the Boston Glass Manufactory, (an incorporated company,) as judgment creditors. The trial was had before Shaw C. J., upon the general issue.

Writ of entry. The demandant owned a house and land fronting westerly on Charles street, in Boston, and running back easterly towards George street, and the tenant owned a house and land fronting easterly on George street and running back westerly towards Charles street. Prior to January 23, 1807, the parcels belonging to both parties, together with other adjoining land, were owned by Charles Bulfinch.

Assumpsit to recover a reasonable compensation for labor and services performed for the defendant, in preparing designs and drawings of plans for a theatre, with all working plans and specifications. On the 30th of March 1836, the plaintiff presented the defendant a bill for $340, having been made for that sum instead of $295, by a mistake of the plaintiff in casting the items of his account from his books.

The petition of John M. Foster, of Waterville, in Maine, and Thomas W. Foster, of the city of Boston, repre■ sents, that on August 28, 1819, Ezekiel Merrill, of Boston, died intestate, leaving a widow, Elizabeth Merrill, and seven children ; that on September 13, 1819, letters of administration on bis estate were granted to the widow, and that the estate was represented insolvent, and that all the assets which came -to her hands were duly administered ; that on June 26,…

<p>This was a petition, filed in this Court at November term 1837, in which the petitioners represent that the county commissioners of the county of Worcester heretofore located a highway through the town of Rutland, upon the application of Willard Snow and others, and ordered the present petitioners to make the road, or cause it to be made, before the 20th of September, 1837, but that the petitioners, believing the proceedings of the commissioners to be unlawful and unauthorized, neglected to make the road or cause it to be made, and the commissioners caused it to be made, and, at their last meeting, accepted it, and have caused the expenses thereof to be paid from the treasury of the county, and have determined to' issue their warrant against the petitioners for the sum so paid and interest thereon, amounting to more than $12,000, which warrant the petitioners are informed will be issued at the meeting of the commissioners next to be holden on the fourth Tuesday of March 1838, unless the same shall be stayed by the order of this Court ; and the petitioners pray for a writ prohibiting and restraining the commissioners from issuing such warrant, until the legality of their proceedings in locating the road, and their right by law to issue such warrant, shall be heard and determined by this Court upon a petition for certiorari, which these petitioners have made to this Court and have caused to be served upon the commissioners, returnable to this Court at the April term 1838, at Worcester.</p> <p>The petitioners further .state, that upon the hearing of the petition for certiorari, they expect to prove ; —</p> <p>1. That the highway was located by the commissioners without having given any notice to the petitioners of their proceeding to locate the same, as is required by law.</p> <p>2. That the highway was not located by three disinterested commissioners, although in the original hearing in regard to the view of the same there were opposing parties who appear ed before the commissioners.</p> <p>3. That John W. Lincoln, Esquire, acted in the location, and was one of the commissioners, although a part of the road as prayed for and adjudicated to be of common convenience, and as since located, lies within the town of Worcester, wherein Lincoln then and ever since has resided, and that a board of the commissioners might have been organized to locate the road, without including Lincoln or any other commissioner residing in any town in which the road lies ; and that Ebenezer D. Ammidown, one of the commissioners, was able to have attended in the place of Lincoln.</p> <p>To this petition the county commissioners filed an answer at the present term, in which they state, that Snow and others petitioned, the commissioners to view a route for a road commencing at or near the store of Charles Lee in Barre, thence to or near Cold Brook village in Oakham, thence through a part of Oakham and a part of Rutland to or near the meetinghouse in Paxton, thence to the junction of the old and new county roads at or near the mills of Rejoice Newton in Worcester ; and to locate such route as a public road, and cause the road to be constructed, if in their judgment the public convenience and necessity should require the same; that thereupon the commissioners gave notice to all persons and corporations interested in the petition of Snow and others, that the commissioners would meet at the public house of A. Hathaway in Barre, on Monday, October 10, 1836, at 2 o’clock P. M., and would then and there proceed to view the route set forth in such petition, and would hear all persons and corporations interested therein, who might wish to be heard concerning the same, and if the commissioners should adjudge that the prayer of the petition ought to be granted, would proceed to locate and establish a new county road as aforesaid, and to assess all such damages as any person or corporation might sustain by such location.</p> <p>The respondents further say, that a board of county commissioners consisting of Ebenezer D. Ammidown, one of the county commissioners, and Ephraim Stone and Benjamin Davenport, the two special commissioners, met at Hathaway’s at the time above specified, for the purpose of performing the duties set forth in the notice ; that the board was thus organized, because John W. Lincoln and William Crawford, the two other county commissioners, resided, the one in the town of Worcester and the other in Oakham ; that the commissioners, thus organized, then and there proceeded to view the route prayed for, and to hear all persons and corporations interested therein, from day to day, until Friday, the 14th of October, and on that day, at Hathaway’s, adjudged the road prayed for to be of common convenience and necessity.</p> <p>The commissioners further say, that at the time of the view they heard the town of Rutland by their agent, and that at the hearing and before tbe above adjudication was made, they gave public notice, in the presence of the town of Rutland, who were there by their agents, that if they, tbe commissioners, should adjudge that the road prayed for ought to be granted, they would, on Monday then next (October 17th), proceed to locate the road, if no objection was made thereto by any person or corporation, and that in the presence of those agents they made public inquiry whether any person did or would object to the location being made on Monday, in case they should adjudge the road to be of common convenience and necessity, and no objection was made, and thereupon they adjourned till Monday, for the purpose of proceeding forthwith to locate the road.</p> <p>The respondents further say, that the board of commissioners, constituted as above mentioned, having, on the 14th of October, adjudicated the road to be of common convenience and necessity, then determined to proceed, on Monday, October 17th, to locate the road from Lee’s store in Barre, through Oakham and Rutland, to a point in Paxton in the county road leading from the meetinghouse in Paxton to Worcester, which point is more than two miles from the dividing line Jaetween the towns of Paxton and Worcester, and that the location from Barre to this point did not an'd could not in any way affect the town of Worcester, or the location of the road in that town ; and that, on the 17th of October, Ammidown was umble to be present at the location, and a board of commissioners was formed at Barre, consisting of Lincoln, Stone and Davenport, and the commissioners, being thus organized, and no objection being made by any person thereto or to the location, proceeded to locale and did locate the road from the place of beginning in Barre through Oakham and Rutland, and in part through Paxton, towards the point above mentioned, in pursuance of the adjudication and determination above mentioned, and assessed the damages which all persons and corporations sustained by the location of such part of the road.</p> <p>The respondents further say, that on the 17th of October they began in Barre to locate the road, and continued locating it in that town until the 22d, on which day, in that town, Jeduthun Green, an agent of Rutland for that purpose duly authorized, and Rowland Wheeler, were present before the commissioners, and the commissioners informed them that the commissioners would be at Cold Brook in Oakham on the 24th, at the house of C. C. P. Hunt, and would then and there hear them and the town of Rutland in relation to the location of the road and the matter of an allowance to the town, and on any other matter touching the road, and the commissioners continued locating from the 22d to the 24th, on which day they met the same duly authorized agent of Rutland, and Wheeler, and another inhabitant of Rutland, at Hunt’s house, and then and there fully heard them, and the town by such duly authorized agent, in relation to the locating of the road through Rutland, and the route which the town would prefer, and in relation to the allowance which should be made to the town ; and neither the town, nor Wheeler, nor the other inhabitant of Rutland, nor any other person, made any objection to the commissioners’ proceeding to locate the road in Rutland forthwith, although they well knew and were fully informed, that the commissioners were about to proceed forthwith to locate the road through Rutland.</p> <p>The respondents further say, that immediately upon the location of such part, the inhabitants of Barre, Oakham and Paxton proceeded to construct, according to the order of the commissioners, so much of the road as was located within their respective towns ; and all the persons and corporations who sustained any damage by the location of so much of the road as was located within the limits of Rutland, have taken and received from the county treasury the sums respectively assessed in their behalf by the commissioners.</p> <p>The respondents admit, that long before the road was to have been made, they had heard that the inhabitants of Rut-land objected to the legality of their proceedings, and they say, that not knowing the causes of objection, and being Willing that the same, if valid, should be early ascertained and legally determined, they some time in March 1837 requested David W. Fletcher, one of the selectmen of Ru' land, to cause the town to make application to this Court then next to be held at Worcester in April 1837, to quash the commissioners’ proceedings or to correct any wrong therein, if the town intended to insist upon any of their objections, but the town made no such application until after the time when the road was to have been completed, viz. the 20th of September 1837, nor until after the commissioners had caused the part in Rutland to be made and paid for out of the treasury of the county, although the town were fully informed that the commissioners intended to cause this part to be made as soon as might be after the 20th of September, if the town of Rutland should neglect to make the same.</p> <p>In the record of the commissioners laid before the Court, it is stated, that the commissioners gave notice to all persons and corporations interested in the petition of Snow and others, that the commissioners would meet at Barre on the 10th of October 1836, and would “ proceed to view the route set forth in said petition, and hear all persons and corporations interested therein, who might then and there desire to bo heard thereon, and if they should adjudge that the prayer of the petition ought to be granted, then to locate and establish a new county road, as aforesaid, and to assess all such iamages as any person or corporation might sustain by said location. And the said county commissioners having met &c., proceeded to view the route &c., and having heard all persons and corporations in relation to said petition, who desired to be heard thereon, it was by said commissioners considered and adjudged, that common convenience and necessity did require that the prayer of the petition should be granted. And no person, whether interested or otherwise, having objected to the county commissioners’ proceeding to lay out the public highway as prayed for, without giving any further notice, either at the time of the view as aforesaid or afterwards, they proceeded to lay out, locate and establish a new county road as follows,” &c.</p> <p>The record further states, that John W. Lincoln and Wil iam Crawford, “ being residents in towns named in said petition, did not act in the view, hearing and adjudication thereon &c. ; and that after the adjudication aforesaid and the promulgation thereof, Ebenezer D. Ammidown, Esquire, one of the county commissioners, being obliged to be absent, his place was supplied by John W. Lincoln in the location and assessment of damages.”</p>

Debt on a bond, dated July 19-, 1834, with a penalty of 400 dollars, payable to the plaintiff.

<p>Trover. The action was tried before Wilde J.</p> <p>It appeared that prior to January 1, 1835, F. & L. Win-ship had carried on the business of bakers in Boston ; and that, about that time, they sold their tools of trade and custom to Jabez P. Hewes, the plaintiff, and Handel Winship, who then formed a copartnership under the firm of Winship &t Hewes, for $600. This property was paid for by two notes, dated January 1, 1835, for $300 each, one of them signed by Handel and Hewes, in their individual names, the other signed by Hewes alone. Hewes contributed nothing to the capital stock of the firm except this note, and Handel contributed $300.</p> <p>On July 31, 1835, Handel, without the knowledge of his partner, made an assignment to Samuel K. Bayley, dated July 29, of all the debts due to Winship & Hewes, for- the benefit of all the creditors of Winship & Hewes who should become parties to the same. On the same da), Handel prepared a notice of the dissolulu n of the firm (which had been formed for an indefinite period), and caused it to be published in two newspapers. On August 1st Handel surrendered the lease of the bakery, then held by Winship & Hewes, and a new' lease was given to F. &' L. Winship.</p> <p>On July 31st, the defendant, as a deputy sheriff, attached the articles described in the declaration, which belonged to Winship & Hewes, on a writ against them in favor of F. & L. Winship. That action was brought upon the note for $300 before mentioned, signed by Handel Winship and Hewes, and upon a note given for $369.95, given by Win-ship & Hewes, in their copartnership name, for money paid oil their account. Handel was defaulted. To the count upon the note for $300, Hewes pleaded infancy ; and to all the counts he pleaded the general issue. After some time, the plaintiffs discontinued against Hewes, and took judgment against Handel, but they never took out execution.</p> <p>At or about the time of the attachment, Parkman took F. &. L. Winship as receipters for all the property attached ; and subsequently, but before the commencement of the present suit, it was agreed between F. & L. Winship, and Handel claiming to act in behalf of the firm of Winship & Hewes, that F. & L. Winship might take all the property attached, at an appraised value, and appropriate it to the payment of the debts of Winship & Hewes. There was evidence tending to show that such an appropriation had been made, and that Parkman received notice of the same, and also a discharge from F. & L. Winship, and from Handel, acting in the name of Winship & Hewes, from all liability on account of the attachment. A large portion of the property attached, including all the tools of trade of Winship & Hewes - except a break ball, was the same property which was sold by F. & L. Win-ship to Winship & Hewes. A demand of the property was made on Parkman by Hewes, but Parkman refused to give up or return the same.</p> <p>F. & L. Winship having become receipters of the property as above mentioned, carried on the baking business at the place occupied by Winship & Hewes, consuming so much of the property as was perishable, and continued so to carry on the business until February 1836, when they sold the property which they bad on hand, together with the custom and trade.</p> <p>Lorenzo Winship testified that he had an interview with Hewes in May 1836, which was after the commencement of this action, and after Hewes had come of age ; that he then fully explained to Hewes what disposition had been made of the property, and that Hewes said he was satisfied that the firm of Winship &. Hewes was insolvent, and that the property had gone to pay the debts of the firm, and that F. & L. Winship had made the best disposition of the property. When asked why he wished to go on in law, and put the witness to expense, he replied, that as the affair had begun in the law, it might end in the law.</p> <p>The plaintiff’s counsel contended, that the attachment of this property of the firm of Winship & Hewes, the same being in part their tools of trade, and the same (with the exception of the break ball) purchased of F. & L. Winship, and paid for by the two notes for $300 each, amounted to a conversion, and would enable the plaintiff to maintain his action against the officer ; that the use of the property and a consumption of part of it, by F. & L, Winship, while acting as receipters under the officer, was also a conversion, and would enable the plaintiff to maintain his action ; that the sale by F. & L. Winship was a conversion of the property sold by them, for which the officer was responsible, although the sale was made by the consent and at the request of Handel in the name of the firm of Winship & Hewes, and that the defendant had shown no-sufficient defence for not accounting with'the plaintiff for the property attached, although the defendant had been discharged by Handel, claiming to act in behalf of the firm of Winship & Hewes.</p> <p>But the judge, intending to reserve all questions of law, instructed the jury that they need consider but one question, namely, whether Hewes had ratified the doings of the defendant, and F. & L. Winship, and Handel Winship ; that if they were satisfied from the evidence, that Hewes had confirmed and approved of those' proceedings with a full knowl ■ edge of all the facts, they should give a verdict for the defendant, but if not so satisfied, they should give a verdict for the plaintiff.</p> <p>The judge further instructed the juiy, that the defence of infancy having been successfully made to one of the notes given in payment for a part of the articles attached, and as the same defence might be successfully made to the other when sued, the original contract of sale from F. & L. Winship was rescinded, and the officer would not in any event be liable to Hewes for any of such property ; and that if they found a verdict for the plaintiff, he could recover for only one half of the property attached by the defendant, which was not purchased of F. &. L. Winship and paid for by the above notes.</p> <p>The jury found a verdict for the defendant.</p> <p>If this instruction was wrong, in the opinion of the whole Court, and they should also be of opinion that the plaintiff could maintain this action without joining his late partner, then a new trial was to be granted ; otherwise judgment was to be rendered on the verdict; unless the Court should be of opinion that the evidence as to ratification was insufficient to sustain the verdict.</p>

<p>Where a partner, without the knowledge of his copartner, assigned partnership property in trust to pay the debts of the firm, it was held, that the copartner could not maintain a several action for money had and received against the assignee to recover his proportion of the proceeds of the property assigned.</p>

This was a complaint under St. 1785, c. 66, against the respondent, as the father of a bastard child The trial took place in the Municipal Court, at the term begun and held on the first Monday of May 1836. The counsel for the complainant, for the purpose of showing to the.

Assumpsit on two promissory notes, for 700 dollars each, dated August 7, 1835, signed by the defendant and payable to the plaintiff, one in six months and the other in one year from date, with interest. At the trial, before Wilde J., it appeared that these notes, together with another note of the same date, payable in thirty days, were given by the defendant to the plaintiff, in consideration of the assignment of an interest in a supposed contract signed by William Smith.

<p>Assumpsit by the master of the house of correction in Boston, to recover the sum of $30-46, for the siipport of Abijah Bemis, as set forth in an account annexed to the writ, signed by the overseers of the house of correction.</p> <p>The only point in the case was upon the sufficiency of the demand made upon the defendants.</p> <p>Upon a case stated it appeared, that on October 20, 1835, a letter was put into the post-office, and was received in due course of mail by the selectmen of Weston. The postage was not paid.</p> <p>The letter was as follows: “To the selectmen of the town of Weston. Gentlemen, Mr. Charles Robbins, the master of the bouse of correction of the city of Boston, has sent to our office for collection an account against the town of Weston, for the support of one Abijah Bemis, amounting to $30.46, after deducting the net profits arising from his labor. This account has been allowed and duly certified by the overseers, as required by the statute, and we are directed, to put it in suit at the expiration of fourteen days from the date of this notice, unless it shall be previously settled. The account may be found at our office. Respectfully your obedient servants, Prescott & Derby.” This letter was written by Prescott & Derby a. the request of the board of overseers of the house of correction, and their doings therein were acknowledged and ratified by Robbins, the master.</p> <p>If these facts constituted a sufficient demand under St. 1834, c. 151, § 10, judgment was to be rendered for the plaintiff; otherwise for the defendants.</p>

<p>A loan by a guardian, upon the promissory note of the borrower, payable in one year with interest, secured by a pledge of shares in a manufacturing corporation, the amount of the loan being about three quarters of the par value of the shares, and less than three quarters of their market value, was held to be an investment made with sound discretion ; and although the borrower failed before the note became due, and the shares fell in value below the amount of the note, the guardian was held not to be responsible for the loss.</p> <p>And the guardian having sold the shares and taken the purchaser’s note for the price, with two endorsers and the notes of another person secured by a mortgage on land, he was held to have exercised a sound discretion, and not to be responsible for a loss occasioned by the failure of all the parties to the notes and a fall in the value of the mortgaged premises.</p>

<p>VV here a deed from V to P, conveying several parcels of land described by metes and bounds, contained the clause, “ meaning and intending hereby to convey all the real estate which I derived under the deeds recorded in Suffolk registry of deeds,” (citing several deeds by book and leaf,) “ to all which deeds reference is to be had,” it was held, that a parcel of land conveyed to V by a deed thus referred to, and no otherwise described in the deed from V to P than by such reference, passed by the deed from V to P.</p> <p>An alien husband who makes the preliminary declaration of his intention to become a citizen before the death of his wife, and completes his naturalization after her death, is not entitled to her land as tenant by the curtesy.</p>

<p>The judgment of a court of admiralty upon a libel filed against the master of a vessel by one of the crew, complaining of an assault and battery and imprisonment alleged to have been committed on the high seas, is not a bar to an action by the mariner against the master in a court of common law, for an assault and battery and imprisonment on shore in a foreign port in the course of the voyage.</p> <p>In such action, the fact of the mariner’s being found on shore by the mate, and imprisoned bj him, in pursuance of orders given upon the high seas by the master, was considered to be immaterial; and an instruction to the jury, that if any part of the acts which constituted this trespass and imprisonment were committed by the defendant on board the vessel, the court of admiralty might hold jurisdiction of the plaintiff's complaint, was held to be erroneous.</p>

<p>Where upon a consignment of goods to be sold on commission, the consignees accepted an order drawn upon them by die consignor, by which they were requested to pay to his order, in thirty days, the sum of $1000, or what might be due after deducting all advances and expenses, and subsequently to such acceptance, but before the goods were sold, the consignees were summoned in a process of foreign attachment, as trustees of the consignor, it was held, that the order was not a negotiable security ; that the order and acceptance could not operate as an assignment, -not being made to a third person ; and therefore that the consignees were chargeable as such trustees.</p>

<p>The plaintiff made a parol agreement for the purchase of a parcel of land, with a dwell* inghouse thereon, of the defendant, and paid the purchase money, taking a written receipt that it was paid for the estate, the defendant undertaking to procure a discharge of a mortgage on the estate, and which he accordingly did, hut before a deed was given or tendered to the plaintiff the house was destroyed by fire. It was held, that the payment did not take the contract out of the statute of frauds, and that the plaintiff was entitled to recover back the money, on the ground of a failure of the consideration.</p> <p>Held also, that in such case, general indebitatus assumpsit was a proper form of action.</p>

<p>Assumpsit for goods, wares, and merchandise, money paid, and on an account stated. Plea, the general issue. Trial before Wilde J.</p> <p>The plaintiffs proved, that they insured 4,000 dollars on the defendants’ brig Sterling, valued at 6,000 dollars, to, at, and from all places during one year from July 11, 1834, “provided however and it is expressly understood, that the said company shall not be liable for any general average or partial loss on the said brig, unless the sum of such loss, which insurers would be obliged to pay under an adjustment as of a partial loss, should amount to fifty per cent.” The policy also provided, “ that the acts of the insured or insurers in recovering, saving and preserving the property insured, in case of disaster, should not be considered a waiver or acceptance of an abandonment; ” and “ that the insured should not have the right to abandon the vessel for the amount of damage merely, unless the amount which the insurers would be liable to pay, under an adjustment as of a partial loss, should exceed half of the amount insured.”</p> <p>In February 1835 the brig, being on a voyage, got ashore in Lynnhaven Bay, with the loss of both masts, cables and anchors, &c. The assured abandoned her to the underwriters oil March 9, 1835. The abandonment was not accepted, but the plaintiffs employed one Winslow as an agent, to go to Lynnhaven bay. He took measures to save the property, and in forty-eight hours he got the vessel off the beach, recovered the cables and anchors, and towed her into Norfolk, where she was overhauled and repaired at an expense of less than 1,300 dollars, including 700 dollars paid for getting her off the beach. The repairs were well made. The agent’s expenses and charges were $293-75. The brig was navigated to Boston by the former master and crew, under a new engagement made with Winslow, and on her arrival was attached by the plaintiffs, and afterwards given up to the defendants on bond, pursuant to the statute. Her home port was Wiscasset, in Maine.</p> <p>The plaintiffs claimed to recover the expenses paid by them for agency, repairs, and navigating the vessel to Boston, amounting to $1626-77. The defendants objected, on the ground that the expenses were incurred without their consent, and against their will, and for the benefit of the plaintiffs alt ne ; and that they never made any promise, express or implied, to pay them.</p> <p>The case was submitted to the jury on the evidence, with general instructions, that they might find for the plaintiffs, provided they were satisfied that it was necessary for the plaintiffs to make the attempt to get the vessel off and make the repairs, in order to ascertain whether they were liable on the policy, and that it thereby appeared that they were not liable ; but that the defendants were not liable for repairs and expenses excepting such as were necessary and were bene ficial to them.</p> <p>If these instructions were wrong, a new trial was to be granted ; otherwise judgment was to be rendered on the verdict.</p>

<p>When a new word is used m a contract, or when a word is used in a technical oi peculiar sense, as applicable to any branch of business, or to any particular class of people, evidence of usage is admissible to explain and illustrate it, and that evidence is to be considered by the jury ; and the province of the court then is, to instruct the jury what will be the legal effect of the contract, as they shall find the meaning of the word, modified or explained by the usage.</p> <p>But when a word having an established place in the language, is used apparently in no new, technical'or peculiar sense, it is the province of the court to put a construction upon the written contract, according to the established use of language, as applied to the subject matter and modified by the whole instrument or by existing circumstances.</p> <p>The defendants gave the plaintiff a bond, dated in June 1835, stipulating that they would convey to him one eighth part of a tract of timber land in Maine, which he had agreed to purchase, but allowing him the right of electing to rescind his bargain, he giving notice of such election before January 1, 1836, unless a majority of the owners of the tract should sooner “ determine to operate on said land next winter,” in which case his right of election and giving notice was limited to fifteen days after notice by the defendants of such determination of the owners. It was held, that in the absence of evidence aliunde to affect the ordinary meaning of the terms operate on the land9 it was the province of the court, and not of the jury, to put a construction upon them, and that taking the contract by itself, these terms included the selling of stumpage, (that is, selling off the timber growing, to be cut by the purchaser,) as well as the cutting of the timber by the owner at his own expense.</p> <p>A notice was given by the defendants to the plaintiff in the beginning of September 1835, that the proprietors of such tract have concluded to commence arrangements for operating upon said tract next winter, by die first of October next, prior to which time we wish you to inform us whether you elect to retain your interest in said tract or not.” It was held, that this was a sufficient notice of the determination of the proprietors to operate the then ensuing winter, and that the plaintiff was bound to give notice of his election by the first of October.</p>

<p>In this case the plaintiff had filed his complaint for an assessment by a jury, of the damages sustained by him by reason of a part of his store and cellar being taken by the defendants to widen Doane Street, in the city of Boston.</p> <p>The defendants pleaded that the plaintiff had sustained no damage, and thereupon issue was joined ; and at January term 1837, of the Court of Common Pleas, a jury was empannelled to try the issue.</p> <p>Upon the trial, before Ward C. J., the complainant gave in evidence an indenture, by which Elisha Parks, the owner of the store, leased to the complainant the lower story and cellar of his store at the corner of Doane on Kilby Street, for the term of three years from January 1, 1829, and the complainant covenants to pay therefor the rent of $725 per annum, and ten per cent per annum on the amount of repairs and improvements, and to pay all taxes levied thereon during the term, and to deliver up the premises, at the end of the term, in as good .order and condition, reasonable use ano wearing thereof excepted, as the same now are or may be put into by the lessor, loss by fire only excepted, and not to make or suffer any waste thereof, nor make or suffer to be made any alterations therein, but with the approbation of the lessor.</p> <p>It was proved, that the mayor and aldermen of Boston, on ■ March 5, 1829, passed an order widening Doane Street, by taking the land in question, and on July 13, 1829, actually cut off and removed so much of the store as stood on the land sc taken. The second story of the store and part of the third, were leased by Parks to Moses Barnard and Alfred Dutch, to hold for the term of seven years from September 3, 1823, and the remainder of the third story was occupied by Parks himself.</p> <p>The complainant claimed, and offered evidence to prove, as a part of his damages, the expense necessary to rebuild the wall, and repair the injury done to other parts of the re maining portion of his store and cellar, by the cutting off a part as above mentioned ; and that he had paid the same to Parks ; but the judge rejected the evidence, and instructed the jury, that the complainant was not by law liable on his covenants to repair the remainder of his store, after a part of the land had been taken by the city, and a part of the building cut off, and could not legally claim or recover any thing therefor, inasmuch as the necessity of making these repairs and building the wall, was occasioned by the mayor and aldermen’s taking the land for widening the street, an event not contemplated by Parks and Patterson at the time when the lease was made.</p> <p>The complainant also offered evidence to prove, as part of the damages which he claimed to recover, that he was liable to pay and had paid to Parks the rent and taxes on the store and cellar as the same were reserved in the lease, from July 13, 1829, when the land was taken, until August 20, 1831, when the store and cellar were again rendered tenant-able by Parks ; but the judge rejected the evidence, and instructed the jury, that the complainant was not by law liable on his covenants to pay any rent or taxes to Parks after a part of the land had been taken by the city and a part of the building cut off, and could not legally claim or recover any thing therefor, inasmuch as the leased estate had been rendered wholly useless and untenantable by taking off a part thereof, an event not contemplated by Parks -and Patterson when the lease was made, and Parks not having built up the wall nor made the estate tenantable from July 29, 1829, to August 20, 1831 ; but the judge further instructed the jury, that Patterson not being bound to repair ought not to be prejudiced by not having repaired nor offered to do it.</p> <p>The complainant also, to prove that he had sustained great loss in his business, besides the actual expense of removing his goods, produced witnesses who slated that a person engaged in the business of the complainant, would necessarily sustain considerable damage by removing from his place of business, by loss of custom and goo'd will and otherwise, unless be should remove to a place of business so much better as to compensate that loss ; and they estimated the loss at various sums, from 500 lo 3000 dollars. And the complainant then offered evidence to prove that he could not obtain and did not obtain a store, after he was removed, of nearly equal advantage, but was obliged to remove into a very inconvenient store in a much less advantageous place of business, and mat he in fact, in consequence thereof, sold in the store to vvhicn .he removed, a much smaller amount of goods and made a much less profit than in the same corresponding months, before he was removed by the city ; and the complainant claimed to recover damages on this account. But the judge rejected the evidence, and instructed the jury, that the complainant could not by law recover for any loss except the value of his lease over and above the rent agreed to be paid, and the actual expense of removing his goods, and the injury, if any, which the goods had sustained by being removed, and the loss of custom while actually engaged in removing ; and that the jury must disregard all evidence of any other loss whatever ; and that in judging of the value of the lease, the jury should confine themselves to the evidence of what it was worth, as things stood on .July 13, 1329 ; that the court and jury, in the trial of causes between party and party, never made up judgments or returned verdicts upon speculation principles, or looked to remote and contingent consequences, but regarded those consequences only which were immediate and proximate ; that the presumption was, that if a‘person from whom an estate was taken, received the value of it in money at the time it was taken, he could procure another estate of equal value in every respect, and whether the complainant obtained a better estate for less money than the fair value of the estate taken from him, and did more business and with greatei profit, or whether he did not or could not procure so good an estate, would make no part of their inquiry ; and that they must give the complainant the full value of the estate taken from him, at the time when it was taken, without having any regard to remote or contingent consequences.</p> <p>The judge further instructed the jury, that in estimating the amount of the plaintiff’s damages, if any one of them knew, of his own knowledge, any material fact which bore upon the issue, he ought to disclose it, and be sworn, and communicate it to his fellows in open court and in the presence of the parties ; but that in making up their verdict, they might rightfully be influenced by their general knowledge on such subjects, as well as by the testimony and opinion of witnesses.</p> <p>To the foregoing rulings and instructions the complainant filed exceptions.</p>

<p>This was an action of the case, by a merchant of Boston, against a mercantile house in Rio de Janeiro, charging them with negligence and breach of duty, as commission merchants, in the transaction of the plaintiff’s business. The plaintiff had given the defendants instructions to draw bills of exchange on London, and with the proceeds to purchase forthwith a certain quantity of coffee, to be shipped on board the brig Neva. The cause was tried before Wi'.de J., and a verdict having been returned in favor of the defendants, the plaintiff took several exceptions in matters of law.</p> <p>Certain depositions taken at Rio de Janeiro on behalf of the defendants, by John Martin Baker, the American consul, were offered in evidence by the defendants.</p> <p>These depositions were taken under a commission issued by the Court of Common Pleas, dated June 11, 1834, addressed to “ Ethan A. Brown, American minister at Rio de Janeiro, in Brazil, or such person as he shall appoint ; and in case of his absence, inability or refusal to serve, or appoint the commissioner, then to the British consul general, or such person as he shall appoint ; and upon his absence, inability or refusal, then to any justice of the peace, notary public, or other officer legally empowered to take depositions or affidavits in Rio de Janeiro.”</p> <p>The commission was executed in November and December 1835. The depositions were not attached to the commission and interrogatories, but were enclosed with them in at. envelope, directed to the Court of Common Pleas. The en velope was sealed with the seal of the consul, and was open ed by the clerk of the Court of Common Pleas in April 1836. In the same envelope, on a detached sheet of paper, was the following certificate under the consular seal. “ I, John Martin Baker, consul, &c., having been requested in the absence of the several persons more especially named in the commission hereto attached, to attend to the execution thereof, do hereby solemnly certify to the justices of the Court of Common Pleas, &c., that the depositions of witnesses hereunto attached, have been’taken, sworn and examined by me on the several days specified therein, and reduced to writing in' my presence by Robert Hewett Hyne the clerk, and that I have conformed in every respect to the instructions contained in said commission. In testimony, &c., John Martin Baker, commissioner, and consul of the United States at Rio de Janeiro.” In the same envelope was a detached sheet of paper containing the following writing : “ Depositions of witnesses produced before John Martin Baker, Esq., consul, &c. unuet and by virtue of the commission hereto attached, issuing out of and under the seal of the Court of Common Pleas, &c., in a certain suit therein pending, wherein William Savage is plaintiff and James Birckhead and others are defendants.” The beginning of each deposition was in form as follows : “ Walter William Mayor being produced, sworn and examin ed as a witness on the part of the defendants, deposes as follows : To the first interrogatory he says,” &c., and at the end the form was, “ Taken, sworn and examined, and by Robert Hewett Plyne reduced to writing in the presence of the commissioner, on, &c., and by the said W. W. Mayor subscribed this twenty-third day of December 1835. John Martin Baker, U. States consul at Rio de Janeiro, and commissioner in this case.”</p> <p>These depositions were objected to by the plaintiff for the following reasons :</p> <p>1. Because they were taken by the American consul, the employment of whom as commissioner was objected to by the plaintiff’s counsel before the issuing of the commission.</p> <p>As to this the facts were, that in consequence of the objee tion the commission was specially addressed as before recited. As soon as the manner in which the commission had been executed, was known to the plaintiff’s counsel, he gave notice to the defendant’s counsel, that he should object to the admission of the depositions.</p> <p>The only evidence produced of the absence, inability or refusal of the American minister and British consul general, is contained in the foregoing certificate of Baker-</p> <p>In July 1835, the defendant’s counsel stated to the plaintiff’s counsel, that both of the commissioners named in the commission were absent from Rio de Janeiro, and he requested the consent of the plaintiff’s counsel to insert the name of a Mr. Hunter as commissioner ; to which the plaintiff’s counsel replied, that he would consent, provided the new rule of court should be transmitted to Hunter for his government, and provided the plaintiff should have liberty to add one or two interrogatories ; which proposal was not acceded to by the defendant’s counsel.</p> <p>2. Because the depositions were not annexed or attached to the commission and interrogatories.</p> <p>There was no direct evidence that the interrogatories were proposed to the witnesses, other than what appears from the documents themselves.</p> <p>3. Because the consul’s certificate of caption is not annexed or attached to the commission and interrogatories.</p> <p>4. Because the deponents (more particularly Mayor, who was a clerk in the defendant’s service) refused to answer several of the cross interrogatories.</p> <p>In the cross interrogatories the witness was requested to examine the books of the defendants, and state the date, amount, and rate of exchange, of every bill by them bought, or drawn, or sold, from the time of the arrival of the Neva, September 20, 1832, to January 1, 1833, giving the names of the purchasers and drawers, as shown by the books, and their residence; and when the witness should have prepared such statement, to let the commissioner compare it with the books and verify it. Mayor made answer, that notwithstanding he had access to the defendants’ books, he considered that the general statement of their bill transactions, as required in the cross interrogatory, could not with any propriety be furnished ; inasmuch as the cross interrogatory sought disclosures irrelevant to this suit, wholly incompatible with mercantile usages, and the fidelity of agents to their constituents, and it demanded an exposition of other people’s affairs entirely unconnected with the case. The witness did not annex the statement required.</p> <p>It further appeared by the testimony of Mayor, that the defendants negotiated the exchange for the plaintiff’s vessel, at the same time with that of other parties, whose business was on hand, and that an average of the whole was taken ; that it was impossible for the defendants, at the time when the bills for this vessel were negotiated, to pass their paper in the market for specific amounts, and having a great deal of back business undone, and large sums to draw for against other cargoes, they were bound in justice to contemplate in their negotiations, so far as practicable, all parties, and necessitated by circumstances to force their bills upon the market at any exchange, and on whatever terms the takers offered, and as opportunities occurred, and apportion the whole of their opera tions afterwards. On this evidence the plaintiff’s counsel requested the judge to instruct the jury, that such acts of the defendants were conclusive evidence of unskilfulness and neglect of the plaintiff’s interest. The judge refused so to instruct the jury, but submitted this evidence for their consideration, in connexion with all the other evidence on this point.</p> <p>The case was argued by S. Hubbard and C. P. Curtis, for the plaintiff, and by C.. G. Loring and Sprague, for the defendants.</p> <p>On the part of the plaintiff it was insisted, that the depositions ought to have been attached to the commission; that this was necessary to prevent a fraudulent suppression of a deposition or fraudulent insertion of papers ; Dodge v. Israel, 4 Wash. C. C. R. 323 ; that it did not appear by ihe commissioner’s certificate itself, that it had reference to this cause. On the part of the defendants it was answered, that when the depositions were taken there was no rule of court, and no instruction in the commission, requiring them to be attached to the commission ; 16 Mass. R. 373 ; and that a party procuring a deposition, has a right to suppress it if he finds it does not answer his purpose. Per Curiam. The depositions were connected by the envelope, and the consul was as much responsible for the papers which he had put under his seal, as if he had attached them together by a riband. In either case there might be fraud or mistake. But no mistake nor improper conduct has been suggested in regard to the depositions now under consideration, and this objection cannot prevail. And the next objection, namely, that the certificate of caption was not annexed or attached to the commission and interrogatories, stands on the same ground.</p> <p>The counsel for the plaintiff said further, that it was specially agreed between the counsel on both sides, that the commission should not be addressed to the American consul, and that the reasons on the part of the plaintiff’s counsel were, 1. That probably the consul was often employed by the defendants and received fees for his services, and might therefore be under an influence in their favor ; and, 2. That he was himself named among those whose depositions were to be taken. They conceded that he would be authorized to execute the commission in case it could not be done by the American minister or British consul general, or some person named by one of them, but they contended that there ought to have been testimony under oath, of the absence., inability or refusal of the minister and consul general.</p> <p>In regard to the refusal of the deponents to answer some of the cross interrogatories, the plaintiff’s counsel said that the deponents were not to be the judges of what was proper or pertinent.</p>

<p>Where land was conveyed upon various trusts, with a power to sell, and the trustees, intending to annul the trusts, veconveyed to the grantor, who thereby took the legal estate but not discharged of the trusts, and he thereupon again conveyed to the trustees to hold the estate for the same uses and purposes and as fully in every respect, as under the original conveyance to them, it was held, that the power of the trustees to sell was revived.</p>

<p>Bill in equity for an injunction and for further relief. The bill sets forth, that the plaintiff is owner of Gray’s wharf in Boston, to which are appurtenant several easements, and among others, that of a dock on the westerly side at the lower part; that the defendant is owner of the wharf next westerly, which was so constructed, prior to the grievances complained of, as not to interfere with the plaintiff’s wharf or dock ; but. that the defendant had extended his wharf below low-water mark, so as to injure a part of the plaintiff’s dock, and intends to extend the same further, so as entirely to exclude v'essels from entering the plaintiff’s dock, whereby it will be rendered wholly useless ; that about 1806, more than twenty-seven years before the commencement of the suit, John May, then the owner of the plaintiff’s wharf, lawfully extended the same ten feet or more below low-water mark, and became seised thereof; that May conveyed to Rice, Rice to Shaw, and in 1816 Shaw conveyed to William Gray, the plaintiff’s father ; that in 1816 it was lawfully extended by William Gray to its present length, openly, publicly and expensively ; that Samuel Parkman, under whom the defendant holds, was the sole owner of the defendant’s wharf at the times of both of these extensions, and was fully apprized of the same when the works were commenced and during their whole progress, and the whole was extended without objection and with his acquiescence ; that the wharf thus extended was occupied b}William Gray, with the docks, &c., until his decease in 1825, whereby he became seised of the premises ; that he devised the same to his sons, and the other sons afterwards conveyed their interest to the plaintiff, who continued to occupy the premises without complaint, until the act of the defendant complained of; and that the extension of the plaintiff’s wharf has never been an injury to navigation, but the contrary.</p> <p>The defendant’s answer admits the plaintiff’s seisin to low-water mark, but denies that it extends further ; denies his right to a dock on the westerly side of his wharf; admits that the defendant is owner of the adjoining estate ; admits that he has extended his wharf, and that he designs to extend it further, but says he will abstain until the suit shall be determined ; denies that he has encroached upon the plaintiff’s dock ; denies that May extended the plaintiff’s wharf below low-water mark, or became seised of any of the land below low-water mark, or that the same was conveyed to Rice, Shaw or William Gray ; admits that William Gray extended his wharf below low-water mark, but alleges that it was done unlawfully ; denies that Parkman was apprized of such extension and with such knowledge permitted the same without objection ; and denies that such extension is no injury to navigation, and avers the contrary.</p> <p>A general replication was filed, and the following issues were framed under the direction of Wilde J.</p> <p>1. Whether the plaintiff, or those under whom he claims, had a right to extend his wharf, as he alleges they did ; and at what time was the same done.</p> <p>2. Whether the defendant has a right to extend his wharf in the manner and to the extent he claims a right to do in his ; answer.</p> <p>3. Whether the plaintiff, or those under whom he claims, have by the extension of his wharf wrongfully damaged the defendant in the use of his wharf.</p> <p>4. Whether Parkman, or his agent, had actual not.ce 01 knowledge of the extension of the plaintiff’s wharf, as alleged in the bill.</p> <p>5. Whether Parkman, or his agent, ever objected to the extension of the plaintiff’s wharf as the same was extended.</p> <p>Much evidence was introduced by the parties respectively in support of the allegations in the bill and answer.</p> <p>It appeared that in 1826 Bartlett extended his wharf to low-water mark ; that in 1828 he extended it below low-water mark, to within fifty-four feet of the end of Gray’s wharf; and that next, he was extending it further, when he was forbidden by the plaintiff. It also appeared that the corner of the plaintiff’s wharf projected over the defendant’s eastern boundary line protracted, and so intervened between his wharf and the channel of the river.</p> <p>The jury were instructed, with respect to the first issue, that they should find whether the plaintiff, or his ancestor, had a right to extend his wharf when it was extended, and also whether he has since acquired a right to enjoy his extension. Upon the first of these questions it was contended by the plaintiff, that he had a right to go below low-water mark, because it did not appear that such an extension was a public nuisance but the jury were instructed, that if they should find it was na a public nuisance, still if they should find it was a private nuisance injurious to the defendant and those under whom he claims, the extension was unlawful in respect to him, and this part of the issue should be found for the defendant; that if they should so find on the first question, then they would further find, whether the plaintiff now has a right to enjoy the extension, and as to this, in the opinion of the judge, they would have no doubt, upon the statute of 1837, c. 229, circumscribing the harbor of Boston. They were further instructed, that the second and third issues were so connected, that they might be considered together ; that if the jury found the extension of the plaintiff’s wharf a wrongful injury, they would find the third issue for the defendant; that as to the defendant’s right to extend his wharf, the matter in dispute was fifty-four feet towards the end ; that if they were of opinion that the extension by the defendant would be no injury to the public, and no injury to the plaintiff, they might sustain the ground of the defendant; they might not perhaps find that the defendant had an absolute right under the act of 1837, but if the evidence would justify them, they might find that the defendant has a right to extend his wharf, so far as regards the plaintiff; that if they should find that the plaintiff’s extension was no nuisance, then the main question to be considered was, whether the plaintiff had acquired a right to the fifty-four feet, over which the defendant had no right to extend his wharf; that prior occupancy of land is sufficient to give a right as against a mere stranger; that they were to consider whether this case came within that principle ; that the possession must be exclusive, and not joint or alternate, and the decision of the question would depend upon the question, whether the defendant had a right to use the water before the extension; that if he had, then the question would turn upon acquiescence ; that if a man erects a wharf and uses a dock twenty years, adverse possession would give him a right to the easement, on the presumption of a grant ; that in the cáse of owners upon a cove, one must not shut out another’s access ; that one having no right, cannot build out in such a way below low-water mark, as to materially injure another; for instance, if the plaintiff had built an L in front of the defendant’s wharf, it could not stand ; that if the plaintiff’s extension was injurious to the defendant’s property, unless there had been twenty years’ acquiescence on the part of Parkman and those claiming under him, they might find that the defendant has a right to extend his wharf.</p> <p>The jury found upon the first issue, that the plaintiff, or those under whom he claims, had no right to extend his wharf at the time he or they did, but that he now has a right to the wharf by the statute of 1837, so far as it does not infringe upon the direct line of the defendant’s premises ; upon the third, that the extension of the plaintiff’s wharf did injure the defendant; upon the second, that, so far as concerns the plaintiff, the defendant has a right to extend the wharf in the manner he claims to do ; upon the fourth, that Parkman had notice or knowledge of the extension of the plaintiff’s wharf; and upon the fifth, that Parkman d‘d not object to the extension.</p>

<p>A manufacturer in the interior of England made an arrangement with a merchant m Liverpool, by which the merchant was to receive goods from the manufacturer and ship them to customers of the manufacturer in the United States, and pay ihe shipping charges and makeadvanc.es to the manufacturer on the goods shipped, and for the better security of the merchant the manufacturer made his irrevocable power of attorney to the merchant’s agent in the United States, giving him full authority to collect all debts due to the manufacturer from his customers, and by a letter of instructions directed the agent to remit all sums collected to the merchant in Liverpool, to be by him credited to the manufacturer, moneys collected to be remitted at the risk of the merchant, but drafts taken in payment of debts to be remitted at the risk of the manufacturer. The manufacturer having received an *,vder from a customer in Massachusetts, sent divers packages to the merchant, and he shipped them to the customer, who received them and accepted a pait of them, for which he thereby became indebted, but refused to accept the otherThe debt and the unaccepted packages were attached in the hands of the customer, hv virtue of a trustee process, by a creditor of the manufacturer. It was held, that the merchant in Liverpool had no lien for his advances and expenses, on the goods received by the customer nor on the debt due from him, and that the arrangement above described did not amount to an assignment of the goods, or their proceeds, by the manufacturer to the merchant, and therefore that the attachment under thr trustee process was valid.</p>

<p>This was a complaint to the Court of Common Pleas, at October term 1834, representing that the complainants were owners in common of a parcel of land in Boston, and that the city, by its officers, the mayor and aldermen, on October 23, 1833-, took from the complainants a part of the land, to wit, 1846 square feet, and that the city had refused and neglected to make them a suitable indemnity or compensation for the injury sustained by them ; and praying that a jury might be empannelled to assess the damages. The complaint had relation to land over which the city had laid out a highway. At the April term 1837, an order of notice was directed to be served upon the city, and at a subsequent term the city appeared and pleaded not guilty. A trial was thereupon had, and the jury found that the city was guilty of taking 1472 feet of the complainants’ land, for which the jury assessed the damages at $1277-68, and was not guilty of taking the remaining 374 feet of land, as alleged in the complaint, because the same was a part of a town way.</p> <p>The complainants claimed an appeal from the Common Pleas to this Court, and the city solicitor filed a motion that the appeal might be dismissed.</p> <p>The case was argued in writing.</p>

This was an indictment, alleging that the defendant, on December 20, 1833, unlawfully and wickedly composed, printed and published in a newspaper called the Boston Investigator, of which he was the editor and publisher, a certain scandalous, impious, obscene, blasphemous and profane libel, in which he “ did wilfully blaspheme the holy name of God, by denying and contumeliously reproaching God, his creation, govern ment, and final judging of the world, and by reproaching…

<p>A conveyance made to defraud creditors is good as against the grantor and his heirs; and if they subsequently convey the same land to a grantee, who has constructive or actual notice of the prior conveyance, such grantee must, in order to avoid the prior-conveyance, prove that he was a purchaser for a valuable consideration.</p> <p>The clause in a deed acknowledging payment of the consideration, is mere primé facie evidence, and may be controlled and rebutted by parol evidence ; and where the deed is impeached on the ground of fraud, it is the lowest species of primé facie evidence ; inasmuch as the same motives which would lead parties to make a fraudulent conveyance, would induce them to insert, in the strongest terms, an acknowledgment of the payment of the consideration.</p>

Writ of entry, brought to recover one undivided third oart of certain land on the north side of Sheafe street, in Boston. The demandants claimed under the will of Mary Waters. The parties stated a case.

Assumpsit on a policy of insurance, dated November 12, 1833, by which the defendants assured to the plaintiff, for whom it might concern, the sum of 6000 dollars, on the brig Iko, for one year, payable, in case of loss, to Nathaniel Curtis. The brig was on a voyage to East Florida when the policy was near expiring, and it was agreed that the risk should continue at a pro raid premium until her arrival at New York or Boston.

<p>Assumpsit for money nad and received, to recover back the several sums of money paid by the Commonwealth to the defendants, for the support of paupers, from January 26, 1828, to April 14, 1836, the date of the writ.</p> <p>The defendants pleaded the general issue, and the statute of limitations.</p> <p>At the trial, before Wilde J., the defendants admitted that they had received the moneys charged in their several accounts rendered to the legislature ; that those accounts were accompanied by the certificates of their overseers of the poor, in the form required by the statutes in relation to this subject; that many of the paupers, for whose support the State was charged in those accounts the sums limited in the statutes, did, during the same period, perform labor for the- town, and for private citizens for the benefit of the town, to a large amount, which the defendants insisted was not sufficient, including the sum allowed by the State, to compensate the town for the expense of their support; and the defendants admitted that no credit had ever been given by the town to the State, for the labor of these paupers.</p> <p>Upon this admission the defendants, being called on for their defence, offered to prove that it was made known to the several committees of the legislature on accounts, in each of the years included in the plaintiff’s claim in this action, that t was the practice in all the towns having State paupers, as well as others, to set them to work from time to time, as they were able and occasion offered ; that Cambridge did so, as well as other towns ; that no credit was given to the State by such towns for the labor of such paupers, it being well understood that the cost of supporting them was much greater than the sum allowed by the State ; and that, with the knowledge of these facts, the committees allowed the several pauper accounts, including those of Cambridge, conceiving such to be the intent of the statutes.</p> <p>This evidence was objected to by the attorney general, as incompetent, and was ruled, proforma, to be inadmissible.</p> <p>A verdict was taken by consent, for the plaintiffs, subject to the opinion of the Court upon the questions of law arising in the case.</p> <p>It was agreed that any public documents might be referred to oy either party, in the argument before the whole Court on the questions of law.</p>

<p>It was agreed by the parties, that these two actions should be decided by the Court, upon the following statement of facts.</p> <p>The actions were on two policies of insurance effected by a part owner of the brig Governor Brooks. By the first policy, which was dated October 15, 1834, the plaintiff’s intestate was insured at the office of the Hope Insurance Company, to the amount of $5000 on the brig, at and from Boston to and at all ports and places to which she might proceed, for one year from the sixth day of October 1834, at noon ; and if the ressel should be at sea when the year expired, then the risk was to continue until her arrival at her port of destination and discharge, at a pro rata premium. The other policy, which was underwritten by the Merchants Insurance Company, was similar, except that instead of the words “ at sea,” the words “ on a passage ” were used.</p> <p>The only questions made were, whether, in the one case, the vessel was “ at sea,” and in the other, whether she was “ on a passage,” at the termination of the year.</p> <p>It appeared on the trial, that on June 22, 1835, the vessel sailed from New York on a voyage to Rotterdam, from which place she was to proceed to Bangor in Wales, for a cargo of slates, and thence to Boston ; that Bangor is on the easterly side of the straits of Menai, which lie between Wales and the island of Anglesea ; that on September 25, 1835, the vessel being at Bangor with her cargo of slates on board and all ready for sea, weighed anchor, with the intention of proceeding on her voyage to Boston, and dropped down several miles below Bangor, but not being able to get out of the straits on account of head winds, came to anchor ; that on several successive days, the vessel made sail for the purpose of getting out of the straits and proceeding on her voyage, but did not succeed until the 8th of October, when the pilot left her outside the eastern mouth of the straits ; that she afterwards sustained damage by the perils of the seas, and was obliged to put into Cowes for repairs, in consequence of which divers expenses were incurred, which the plaintiffs sought to recover in this action.</p> <p>The only question submitted to the jury, under the direction of the Court, was, whether the vessel was in a harbor on the 6th of October 1-35, at noon.</p> <p>The plaintiffs introduced the deposition of Abbott, the master of the vessel, who testified, that after the vessel sailed from Bangor on the 25th of September, he brought up at the eastern mouth of the straits, in consequence of the winds being contrary and the weather unsettled ; that the place where the vessel anchored was generally used for that purpose by outward-bound vessels detained by contrary winds ; and that it was not a harbor, and had no accommodations for receiving or discharging cargoes, but lay open to the Irish sea from the eastward.</p> <p>The plaintiff also introduced the deposition of Isaac Hopxins, the mate of the vessel, who testified that the vessel came to in the bay, on account of head winds, about five miles below Beaumaris, where on one side was the island of Anglesea, and on the other, sand-banks and shoals ; and that there was no settlement on that part of the island, except a few farm-houses.</p> <p>Edward Hammond, who was called as a witness by the defendants, testified, that he had made three voyages to Bangoi' ; that the harbor extends to the perch, where there is a lighthouse on one side, and a ledge of rocks on the other; that all customhouse business was done at Beaumaris, which is two or three miles below Bangor ; that Bangor was to Beaumaris as Charlestown is to Boston ; that he did not conceive that there was a harbor of Bangor; that if a vessel anchored inside the perch, all fees were demanded, even if the vessel did not go to Bangor or to Beaumaris ; that if vessels came from Liverpool and had head winds, they often ran in and anchored, and then went out again ; that in such cases, they paid the harbor dues, which are distinct from the customhouse dues ; that while he was last at Bangor, a British ship came within the straits for ballast and paid harbor dues, although she did not go to Beaumaris or to Bangor ; that vessels in the straits generally lie half a cable’s length from Anglesea ; that vessels pass through the straits both ways ; that he had seen British coasters discharge timber at Friars roads, but without taking any thing in ; that the pilot takes vessels from Bangor down ; that the moment a vessel passes inside the perch, the customhouse officer comes on board ; and that when the witness was in the brig Francis, which had excisable goods on board, the customhouse officer did not leave till the pilot did, outside of the perch.</p> <p>The jury found, that the brig was not in a harbor on the blh day of October 1835.</p> <p>The defendants objected to the verdict, as being against the weight of evidence. They also contended, that it did not bear directly on the case, as the brig might nevertheless have, been neither at sea, nor on her passage, at that time.</p> <p>If the Court should be of opinion, that the plaintiff could maintain her actions, the defendants were to be defaulted, and the partial and general average losses were to be made up by an assessor, &c. ; but if the Court should be of opinion, that the plaintiff could not maintain her actions, she was to become nonsuit.</p>

Trover for a quantity of timber attached in January 1835, by a deputy of the defendant, who was sheriff of the county of Middlesex, upon a writ issued in favor of one Trowbridge against Curtis & Barstow.

<p>Deed of chattels, dated October 3d : I, C. S., in consideration of being justly hi debted to D. M. in the sum of &c., secured to him by my promissory note bearing date October 1st, payable in two years with interest, as also in consideration of one dollar, &c., do by these presents grant, bargain, sell, convey and confirm to him the chattels, to have and to hold the same to him to his proper use, and I will warrant and defend the same to him, of all which chattels I have put him in pos session by delivering him a part in the name of the whole. Held that this was not a mortgage.</p> <p>Whether the mortgagee of personal property can maintain trespass dt bonis asporta~ tis against an attaching officer for the taking, before he has given notice of his mortgage arid stated his account, and the creditor or the officer has refused or neglected to pay his demand and discharge the lien, qucere.</p> <p>The party against whom a verdict has been rendered, cannot as matter of right, require the judge before whom the cause was tried, to report the evidence, in order to enable such party to make his motion to the whole Court for a new trial, on cae ground of the verdict’s being against the evidence or the weight of the evidence, but it is a question of judicial discretion with the judge, whether the evidence shall be reported.</p>

<p>The owner of two adjoining messuages fronting easterly on a street, conveyed the southerly messuage, in 1703, by a deed, in which, after stating that on the southerly side of that messuage “ there is a gate and passage-way of about five feet wide leading from the street into the yard of the said messuage,” he reserves unto himself, his heirs and assigns for ever, free liberty of ingress, egress and regress through and upon the said gate or passage-way, for carrying and re-carrying wood or any other thing through the same and over the yard or ground of the said messuage hereby granted, into and from the housing and land of the grantor for the use and accommodation thereof, without damnifying or annoying thereby the grantee, his heirs or assigns. And it is mutually agreed, that whensoever the grantee, his heirs or assigns, are minded to make or add any addition of building backward, he or they shall only make the breadth to extend equal with die breadth of the back of the chimneys of said tenement hereby granted.” It was held, that although the owner of the northerly messuage had enjoyed the passageway for a period long enough to give a prescriptive title, yet that as the use had been consonant with the deed, the easement must be deemed to have been under and not adverse to the reservation, and must be explained and limited by the terms of ihe reservation.</p> <p>i (eld also, that although the grantee arched over the passage-way leading from the street, and narrowed it to the width of the old gate way, yet that if it was substantially as convenient as before, the grantor had no ground for claiming damages.</p> <p>Held also, that the grantee had a right to build northwardly as lar as the line of the chimney, but no further.</p> <p>Held also, that the grantee had a right to extend the old building or a new building as fur westxvavdly as he should choose, provided he left a suitable and convenient passage-way across his lot to the other messuage ; and that such extension might be made after forty years’ enjoyment of such a passage-way close by the rear of the old building, inasmuch as the deed explained the use and rebutted a prescriptive title to a passage-way in that precise place.</p> <p>Held also, that the grantee was not restricted as to the height to which he might raise his building.</p>

<p>This was assumpsit against the defendant, as administratrix of William Goddard, for goods sold in New York by the plaintiffs, for the use of the ship Mount Vernon, of which the intestate was the general owner. The cause of action, as alleged by the plaintiff, accrued on May 25, 1829 ; and the action was instituted on May 24, 1837.</p> <p>The trial was before Dewey J.</p> <p>The plaintiffs, at the time when the alleged contract was made, resided in the city of New York ; and it did not appear, that they, or either of them, had been in this Commonwealth since that time. The intestate, at the time of the making of the contract, was a resident of Boston, and always continued to reside there until his death, which took place on July 26, 1835.</p> <p>It appeared, that the plaintiffs, after the sale of the goods, instituted a suit against the intestate in New York, which was pending at the time of his death, and was abated thereby.</p> <p>The judge ruled, for the purposes of the trial, that the statute of limitations "was a sufficient defence to the action. Whereupon, by consent, the case was taken from the jury, and the plaintiffs became nonsuit, the question of law being reserved for the consideration of the whole Court. If the Court should be of opinion, that the statute of limitations was not a good defence, the nonsuit was to be set aside, and a new trial granted.</p> <p>The case was argued in writing.</p>

<p>The St, 1836, c, 238, regulating the assignment and distribution of the property of insolvent debtors, piovides, that all the creditors shall have a light to become parties to the assignment, if they apply therefor before the final dividend is declaied, but that “no creditor who comes in after any dividend is declared, shall be allowed to disturb the same, but he shall receive an equal proportion with the other creditors, so far as the funds then remaining unappropriated in the hands of the assignees shall be sufficient theiefor.” Under this statute, it was held, that a creditor who became a party to an assignment after the first dividend was made, but before the second was declared, was entitled to Ids full proportion of the first dividend, (but without interest thereon,) it appearing, that there was an amount of unappropriated funds i.n the hands of the assignees sufficient to enable them to pay him the same, without disturbing the first dividend made to other creditors.</p> <p>Xt seems, that where funds are reserved conformably to the 6th section of the same statute, to meet the claims of remote creditors or those whose debts are contingent, such debts should be particularly designated, so far as known, and the funds specially reserved to meet them ; and that when such creditors do become parties, or their contingent debts become absolute, they are entitled to receive from such reserved funds, the full amount of the prior dividends, as against a creditor voluntarily forbearing to become a party to the assignment until after such prior dividends were made.</p> <p>Where a creditor brought his bill in equity against the assignees to recover out of the unappropriated funds in their hands his proportion of the first dividend, and the suit was resisted on the insufficient ground that he had not become a party to the assignment until after the dividend had been made, it was held that he was entitled to costs, to be paid out of the funds, the defence having been made for the benefit of the other creditors.</p>

This was a bill in equity filed by George Law, and by Betsey Lee, administratrix of Larkin T. Lee deceased, against Edward Thorndike, administrator of Henry Thorndike. The bill set forth, that in 1809, Henry Thorndike was the owner of two thirds of the schooner Two Friends, and Larkin T..

<p>Bill in equity, brought by Laura P. Holland, administratrix on the estate of her husband, Samuel M. Holland, deceased, against Edward Cruft, administrator, with the will annexed, on the estate of John Holland, deceased, the father of Samuel, George W. Holland, a brother of Samuel, and Aaron D. Weld junior and George Whitaker, assignees of the property of George.</p> <p>The bill sets forth, that John Holland died in June 1824, testate-; that he devised certain real and personal estate to his wife during her life, and after her death to his five children in equal shares, and that after creating certain annuities, which bad since terminated, the will directed that so soon as his youngest child should have arrived at full age, all the rest of his estate, real and personal, should go in equal shares to his children who should then be living ; that the youngest child came of age in June, 1832, and that the five children were then living ; that there is now in the hands of Cruft, as administrator, personal estate amounting to 25,000 dollars, to which Samuel M. Holland would be, if now living, and the -complainant, as his personal representative, is entitled, under the residuary clause in the will ; that in May 1827, Samuel, having failed in business and being unable to pay his creditors, assigned to George all his right under the residuary clause, for a nominal consideration of 2000 dollars ; that this consideration was wholly inadequate for the boná fide purchase of the interest attempted to be conveyed, and that George did not in fact pay that sum, but that Samuel made the pretended assignment in order to prevent his creditors from having the benefit of the interest bequeathed to him and that George might hold the same in trust for him, &c., or else that Samuel, while distressed and embarrassed, improvidently, to the impoverishment of himself, his wife and family, and to the injury of his just creditors, in manifest contravention of the intentions of his father, and contrary to the policy of the law, in order to release himself for the moment from some pressing claims, assigned to George all his expectant and possible interest in the estate of his father ; that for the purpose of effecting these fraudulent designs, Samuel, in .Tune 1832, delivered to George a letter of attorney authorizing-George to do all acts in relation to the premises which Samuel might do if personally present ; that judgments on debts contracted by Samuel before the assignment to George, have been recovered against the complainant as administratrix, to be levied on assets quando acciderint, and that there are other and large claims against the estate of Sam uel ; that Samuel, at the time of his decease, was not seised and possessed of any real estate, and was not possessed of or entitled to any personal property, other than the personal property in the hands of Cruft, except a very small amount of personal property, which has long since been expended in the costs and charges of the complainant’s administration ; and the bill prays that the deed of assignment and the letter of attorney from Samuel to George may be declared void and fraudulent as against the complainant as administratrix, and against the creditors of Samuel, whom she represents, and that one fifth of the “ residue” of the testator’s estate may be paid over to the complainant, to be administered by her as administratrix on the estate of Samuel.</p> <p>Cruft., in his answer, admits that he has in his hands the share bequeathed to Samuel, amounting to §24,718 ; alleges that the same has been demanded of him by Weld and Whitaker claiming under assignments from George, and by the complainant as administratrix ; and submits it to this Court to determine to whom the same shall be paid.</p> <p>George W. Holland, in his answer, as to so much of the bill as alleges his purchase of Samuel’s share to have been made to defeat or defraud the creditors of Samuel, denies that this Court, as a court of equity, has jurisdiction of the bill in that behalf; he denies that the purchase was fraudulent against such creditors, or unconscionable as it regards Samuel; he alleges, that prior to May 19, 1827, he had paid for Samuel several^ sums amounting to §2763-43 ; that Samuel wished to secure the repayment of this amount to the respondent, and also wished to raise a sum of money to relieve himself from pecuniary embarrassments which pressed upon him at that time, and he proposed to sell to the respondent all the right, title and interest which he had or might have in the property in question, and the respondent agreed to purchase the same ; that the bargain was, that the respondent should give him two negotiable notes for §1000 each, one payable in one year, without interest, the other, payable in five years, with interest ; that if Samuel should be alive when the youngest child of John Holland arrived at full age, the respondent was not to make any claim against Samuel for the sums which had been advanced to him by the respondent, but if he died before tha time, the respondent’s claim for such advances was to remain valid against his estate, and the respondent was to lose the $2000 and interest ; that the notes were accordingly given and the assignment made ; that the note payable in one year was paid at maturity ; that the other has not yet been paid, but is still outstanding against the respondent, and that the tar-gain was made fairly, and for a valuable and adequate consideration, taking into view the contingencies on which Samuel’s interest depended.</p> <p>Weld and Whitaker, in their answers, allege the assignment of Samuel’s share to George, and several assignments by George, of all his property, embracing the share of Samuel, •o the respondents, for the security and payment of George’s creditors, including the respondents.</p>

<p>Assumpsit on two promissory notes made by Daniel Baxter junior, and indorsed by the defendant, for $2000 each, payable in four months. One was dated May 28, 1833, the other, June 4, 1833.</p> <p>At the trial, before Wilde J., the plaintiffs proved, that at the time ihese notes became due, one Sylvester T. Goss held in the Washington Bank the office of assistant discount clerk and messenger ; that it was his duty to keep a record of all notes discounted or left for collection, and to give the usual notices, and to make a record thereof; that Goss was deceas-' ed ; that a book, labelled on the back, “ Washington Bank. Notice to Indorsers,” which was produced, was a book kept in the bank as a record of all notes upon which notices had oeen issued and delivered by Goss , and that the entries and minutes in this hook were in the handwriting of Goss. The plaintiffs alleged that this book contained entries in relerence to the notes in suit, and to two other notes between the same parties, showing that payment had been duly demanded of the maker and notice duly given to the indorser. The entries were in this form :</p> <p>Discount. Sept. 28.</p> <p>Daniel Baxter jun. . . 2000 . . Lady . . House.</p> <p>Edward Prescott . . . 2000 . . on desk . . C. R.</p> <p>Attest, S. T. Goss, Messgr.</p> <p>It was proved that the promisor and the indorser (both ot whom had failed in business) kept their accounts and transacted their business at the Washington Bank, and from time to time obtained loans or discounts, and made renewals, and up to the time of their failure, bad been in the habit of receiving notices, through the same officer, and paying their notes.</p> <p>The defendant objected that there was not sufficient evidence of demand and notice ; and if there was, that the plaintiffs had released or discharged the defendant by receiving an order, dated September 14, 1833, drawn by him upon the assignees of the property of Baxter and accepted by them, to pay to the plaintiffs, from the defendant’s part of the funds arising from the effects of Baxter, the amount of the notes held by the plaintiffs, signed by Baxter and indorsed by the defendant. It appeared that Baxter had made a general assignment of his property for the payment of his creditors, to which the defendant was a party, and in a schedule of debts which were to be paid in full, or proportionably if there should be a deficiency of assets, were the two notes now in suit, and also the two other notes above mentioned, signed by Baxter and indorsed by the defendant, one of them dated August 2, 1833, for $600, the other dated August 20, 1833, for $2700, each payable in four months. The effects of Baxter proved to be insufficient to pay in full the demands on the schedule. One of the assignees testified that he paid the plaintiffs $4326-36 in one sum, upon the abovementioned order, and that there would be another dividend of about $865, but when-it would be realized, he could not say.</p> <p>The plaintiffs put into the case the two notes for $600 and $2700, which notes, as well as the two in suit, were due and unpaid on February 15, 1837, the time of the payment of the $4326-36 ; and it appearing that this sum was apportioned and indorsed upon the four notes, it was contended by the defendant, that it should have been applied 'to the payment of the two notes first due.</p> <p>The jury were instructed, that it being satisfactorily proved, that Goss the messenger was dead, and that the book referred to was in bis handwriting and .was a book kept by the bank for the purpose of showing notices upon promissory notes, it was competent and proper evidence to be submitted to their determination ; and that if they believed that the entries in the book bad reference to the notes in question, and that demands were made and notices given conformably, they would, on this part of the case, find for the plaintiffs ; that as the four notes were signed and indorsed by the same parties and were all overdue at the time of the payment made by the assignees, the money paid was rightfully applied to them all; and as to the supposed release, that the burden was on the de fendant to show such release, and if the jury were satisfied that the order was given in consideration of a promise by the bank to release the defendant, this would be a good discharge in law, although it were accepting a less sum in discharge of a greater sum then due.</p> <p>The jury found a verdict for the plaintiffs for the balance due on the two notes in suit.</p> <p>The defendant moved for a new trial, because the messenger’s book was admitted in evidence, the entries in which were not verified by the suppletory oath of any one, and were unintelligible, and did not certify any fact, nor designate the promisor, nor the indorser, nor any place where notice was given, nor state that the notice to the indorser was subsequent to the demand on the maker : because notes of Baxter not declared on were admitted in evidence : because the jury were erroneously instructed, 1. that the book was evidence of demand and notice ; 2. that the order given by the defendant to the plaintiffs was not conclusive proof of payment and accord and satisfaction ; 3. that the money paid on the order had seen rightly appropriated to the four notes ; and 4 that in assessing the damages no allowance should be made for the fu ture dividend of $865, payable to the plaintiffs.</p>

<p>This was assumpsit, brought by the plaintiff, as master of the house of correction for the county of Suffolk, to recover the sum of- $59*27, for the support of William Searles and his wife therein, from August 6, 1834 to April 7, 1835.</p> <p>The trial was before Wilde J.</p> <p>It was admitted by the defendants, that William Searles had his settlement in Townsend, unless he had acquired one in Boston. The defence set up was, that he had acquired a settlement in Boston by residing there for ten successive years or more, and by having been assessed and having paid taxes for five years at least of such ten years.</p> <p>The plaintiff, in order to prove that he was chosen master of the house of correction, offered in evidence the following certificates of the city clerk of Boston : City of Boston, June 13, 1833. I, the subscriber, do hereby certify, that Charles Robbins has been duly appointed master of the house of correction. S. F. M‘Cleary, City Clerk.”</p> <p>“ I certify, that the above named Charles Robbins was master of the house of correction for the year 1834, and has continued in that office ever since. December 6, 1837. S. F. M‘Cleary, City Clerk.”</p> <p>The defendants objected to these certificates as being insufficient to prove, that the plaintiff held that office during the lime when the paupers wére supported in the house of correction. But the judge overruled the objection.</p> <p>The defendants called William Searles, as a witness, "who testified, that he was about forty years of age ; that he went to Boston, when he was fourteen ; and that he bad had his home in Boston, with the exception of a few months, ever since that time.</p> <p>The defendants then offered to prove by the witness, that he had paid taxes in Boston for five of the years during his residence in Boston. To this the plaintiff objected, on the ground, that, as the records of the city treasurer set forth what taxes were assessed and what payments were made, they were the best evidence, and must be produced before any parol evi dence was admitted. The defendants contended that such records, being the books of the plaintiffs in interest, were not the only evidence to which the defendants could resort to prove a payment of taxes by Searles, and that the defendants were not bound to produce them. The judge ruled, that the defendants must first produce the books of the city treasurer, in order to show the assessment and for other purposes, before they could resort to parol testimony to prove the payment of taxes by Searles ; but that they would not be concluded by the books, and might prove that there was a mistake or omission in them, by parol evidence.</p> <p>The defendants thereupon called Richard D. Harris, the city treasurer, as a witness, who produced the books kept in bis office. From "these books it appeared, that Searles had been assessed for ten successive vears, commencing in 1821 ; that in the book of assessments, containing a statement of the taxes of all the inhabitants of Boston, there was written against the name and tax of Searles, the word “ paid,” in the years 1821, 1822, 1823 and 1825 ; but that there was no such writing against his tax for any other year.</p> <p>Searles was thereupon called again, and testified that up to 1826, he had paid a tax every year, but that he could not state as to any particular year, and that he was as able to pay a tax any year, till after 1826, as any journeyman mechanic in Boston.</p> <p>Jabez Walcott testified, that he thought that he paid a tax for Searles, at his request, between July 1824 and May 1825.</p> <p>Upon this evidence the defendants contended, that as it was.proved, that the taxes assessed to Searles for the years 1821, 1822, 1823 and 1825 had been paid, and that he was of ability to pay his taxes during those years and during. the year 1824, a presumption arose, that the tax for 1824 was paid, and that such presumption arose more particularly from the circumstance of the payment of the tax for 1825. But the jury were instructed, that no such legal presumption arose in the case ; that it was a question of presumption arising from the evidence; and that if, upon the whole evidence, they believed that the tax for 1824 had been paid, they should find for the defendants ; but that if they believed that it had not been paid, they should find for the plaintiff.</p> <p>The defendants requested the judge to instruct the jury, that if the city might, by reasonable diligence, have collected the tax for 1824, of Searles, they should find a verdict for the defendants, on the ground, that a neglect of duty on the part of the officers of the city in collecting a tax regularly assessed, would not relieve the city from the maintenance of Searles. But the judge refused so to instruct the jury, because, in his opinion, there was no evidence of neglect, requiring such instructions, the city not being obliged to issue a warrant of distress or to take any uncommon and unusual mode of collecting this tax.</p> <p>The jury returned a verdict for the plaintiff.</p> <p>The defendants moved for a new trial, upon the ground of misdirections of the judge in matters of law</p>

By the answers of the Suffolk Bank it appeared that, pursuant to an agreement, the respondents were accustomed to receive the bills of the Nahant Bank, at their par value, from persons other than that bank, and to charge to that bank the sums paid by the respondents for the bills ; and were accustomed to collect notes and drafts for that bank and credit that bank with the proceeds ; that the bills thus received were from time to time returned to the Nahant Bank ; that at the…

<p>Under Revised Slat. c. 86, § 10, by which a person convicted in the Municipa Court of the city of Boston, of an offence punishable by confinement to hard labor for a term exceeding five years, may appeal to the Supreme Judicial Court, a person convicted at the same term of the Municipal Court, of three distinct larcenies, and therefore liable to be sentenced as a common and notorious thief, to confinement to hard labor for a term exceeding five years, has a right of appeal, notwithstanding that for neither of the offences separately would he be liable to be imprisoned more than five years.</p> <p>A count in an indictment, alleging that the defendant broke and entered a shop with intent to commit larceny, and did there commit larceny, is not double.</p> <p>Duplicity in an indictment cannot be taken advantage of on a motion in arrest, or on error. Semble.</p> <p>An indictment on Revised Stat. c. 126, § 11, which provides for the punishment of “ every person who shall break and enter, in the night time, any shop, not adjoining to, or occupied with, a dwellinghouse,” with intent to commit a felony, must aver that the shop was not adjoining to or occupied with a dwellinghouse.</p> <p>It seems, that the statutes have omitted to provide for die case of breaking and entering, in the night time, a shop adjoining to, or occupied with, a dwellinghouse, with intent to commit a felony ; also the case of larceny in a shop m the night time, as distinct from simple larceny.</p> <p>It seems, diat after conviction, a substantive charge defectively set forth in an indictment may be rejected as surplusage.</p> <p>Before a jury is empannelled to try an indictment, and also after conviction, the attorney general has power to enter a nolle prosequi without the consent of the defendant ; but not while the case is before the jury.</p> <p>A nolle prosequi may he entered as to the whole of an indictment or of a count, or as to any distinct and substantive part.</p> <p>Thus, where a defendant was convicted on a count charging that he broke and entered a shop, in the night time, with intent to commit larceny, and did commit larceny, it was held that the attorney general had the power to enter a nolle prosequi as to the breaking and entering the shop, leaving the conviction to stand in respect to the larceny.</p>

This was a bill in equity, setting forth, that on or about January 16, 1834, the firm of Bixby, Valentine & Co., by a deed of that date, assigned their property to the plaintiffs in trust for the benefit of their creditors ; that the plaintiffs took possession of the property ; and that divers conflicting claims having been made on them to the property assigned, and divers facts being concealed from the plaintiffs without which they could not rightly discharge the trusts…

<p>Devise : Further, my will is, that my said trustees shall receive and hold all the property, rents and income not hereinbefore particularly disposed of, for (he benefit of my two sisters, N. H. and P. H., and their children and their husbands respectively, in manner following, viz., to pay to each of my said sisters for and during the term of their respective lives the sum of 150 dollars annually, and after the decease of either of my said sisters, then to pay to the husband of such deceased sister, if he survives her, the sum of 75 dollars annually during his life or until he shall marry again ; and at the decease of my said sister N. H. the one half of all of said fund so to be held for my said two sisters, their children and husbands, is to be held by my said trustees for the use of her the said N. H.’s children, and to be paid or conveyed to her children and grandchildren in manner following, viz., one half of her said share to her daughter E. <$., the wife of E. S., or to her children then living ; and the other half to the children of, E. W. H., son of said N. H., if any he have living, and if he have no children living, then to go to such person or persons as would be his legal heirs if he were deceased. The sister N. H. died, having survived her husband, and at her death, her daughter and her daughter’s children, and her son E. W. H. and his children, were living. It was held, that one half of the share was to be paid to the daughter E. S., tu the exclusion of her children.</p> <p>Upon a bill in equity by husband and wife to recover a legacy to the wife, it seems, this Court have power to require the husband to make a suitable provision for the wife out of the sum to he recovered.</p> <p>But whore the testator, though he was acquainted with the husband, did not provide that the legacy should be paid to the separate use of the wife, and there was no suggestion that the husband’s character had changed, or that he had become improvident, since the death of the testator, and the wife did not desire to have the property secured to her, but, on the contrary, desired that it might be paid to the husband, the Court refused to exercise such power.</p> <p>Where a bill in equity to recover a legacy is rendered necessary in consequence of an ambiguity in the terms of the bequest, the costs of suit are not to fall upon the particular legacy, but are to be paid by the executor out of the general assets in his hands..</p>

<p>In a policy of insurance on a vessel engaged in the coasting trade, it was stipulated that the insurance company were not to be (t liable for any damage to or from her sheathing.” It was held, that if this was to be considered as a representation that the vessel was sheathed, it was immaterial, there being evidence that sheathing was not considered of advantage to a vessel employed in such trade ; and that it was not a warranty that she was sheathed.</p> <p>A vessel was insured “ at and from Calais, Maine, on the 16th day of July, at noon, to, at and from all ports and places to which she may proceed in the coasting business, for six months.” It was held, that the policy attached, although there was no evidence that the vessel was at or prosecuting her voyage from Calais on the day named, it appearing that, when the policy was made, neither party knew when the vessel sailed from Calais, and that it was their intent to insure on lime, without regard to the place where the vessel might be.</p> <p>In an action upon a policy of insurance on a vessel, no evidence was offered of any preliminary proof being exhibited to the insurers before the action was brought, except an abandonment, a demand of payment, and an agreement of the parties to refer the case to arbitrators ; but it appeared, that the insurers had always refused payment, on the ground of the unseaworthiness of the vessel, and not on account of the want of further preliminary proof. It was held, that the insurers had thereby waived their right to any further preliminary proof, or that it might be presumed that they had had such proof.</p> <p>If a vessel is seaworthy when the policy attaches, it will be presumed that she continues so during the time of the risk, in the absence of any evidence rebutting such presumption.</p> <p>The plaintiff and L. bought a vessel together, and the plaintiff endorsed the notes given by L. for his proportion ; but no writing passed between the parties, at that time, in the nature of a mortgage or otherwise. The plaintiff was thereupon insured upon such vessel, for whom it concerned, to the amount of her value, the policy being made payable to him ; and before a loss occmred, L. executed a bill of sale of his proportion, to the plaintiff. Tt was held, «bat the plaintiff thereby became entitled to recover the whole amount of a loss, for his own use.</p>

Trover, against the sheriff of Suffolk, for a quantity of merchandise.

This was a petition filed by Goddard in the Court of Common Pleas, January term 1836, setting forth that the mayor and aldermen of Boston had taken a parcel of his land for a street, and praying that a jury might be empannelled to assess his damages. More than twelve months had elapsed after the taking of the land,' before the filing of the petition, and for this reason Ward C J. ruled that the petition could not be sustained. The petitioner filed exceptions to the decision.

<p>Where a general average loss is adjusted at the port of destination conformably to the law and usage of such port, and the assured pays his contributory portion thereof, he is entitled to recover the same of the insurers, although the contributory interests have been estimated upon principles differing from those which prevail at the place where the policy was underwritten.</p>

Trover, by the administrator of John Lester against Harvey Hill and Daniel Barrett, for a quantity of leather and hides. Trial before Morton J. It appeared that the goods were in the tan-yard of William Brown, and were removed therefrom by one or both of the defendants. The plaintiff made a demand of the goods, of Hill, in whose possession they were, but he refused to deliver them The plaintiff claimed the goods by virtue of two mortgages made by Brown to Lester.

Writ of entry against James Collin, John C. Hunt and Arnold Thouvenin, to recover a parcel of land in the town of Washington. Trial before Dewey J. The demandant introduced a deed from Caleb Alvord, conveying the land to the demandant, dated January 27, 1818, and recorded March 19, 1819 ; also an execution in favor of Caleb Alvord against Joseph Goodwin and others, upon which the land was set off as the property of Goodwin in June 1813.

Assumpsit. The declaration sets forth, that the defendant, on June 1, 1833, by his memorandum in writing, agreed to sell and deliver to the plaintiffs all the wool he should cut annually, for five years from June 1, 1833, from his flock ol sheep, also the wool which should be cut annually from the flocks of his two sons, Daniel Foote and AsapliD. Foote, for five years from June 1, 1833, together with the wool produced within that period by the increase of the flocks.

<p>Debt on a bond, dated February 4, 1837, given by Brown and the other defendants to the plaintiff, a citizen of the State of New York, conditioned that Brown, who had been committed on that day to the prison in Lenox, on an execution against him in favor of the plaintiff, would not go without the exterior limits of the prison until he should be lawfully discharged. The cause was tried before Dewey J.</p> <p>It was admitted, that on March 9, 1837, Brown took the floor debtor’s oath, as prescribed by the Revised Statutes, and went without the limits of the prison.</p> <p>The plaintiff introduced the citation which was issued by the justice of the peace, upon Brown’s application to be admitted to take the oath, and the copy of it which was left with Mr. Sumner, the plaintiff’s attorney.</p> <p>The plaintiff stated, among the points in his case, that the citation was illegal and void, because directed to Ebenezer B Slasson and not to Edward B. Slasson ; and that it did not give notice that Brown was desirous of taking the benefit oi the law for the relief of poor debtors, but only that the oath or affirmation allowed by “ an act for the relief of poor prisoners who are committed by execution for debt,” would be administered to Brown, being an act repealed by the Revised Statutes.</p> <p>The defendants introduced the certificate of the justices of the peace, who admitted Brown to the poor debtor’s oath. certifying that Brown had caused notice to be given to Edward B. Slasson; and they contended that the certificate was conclusive as to the regular ity of all prior proceedings.</p> <p>The defendants proved by Mr. Sumner, the plaintiff’s attor ney, that he was not attorney for Slasson, either Ebenezer B. or Edward B., in any other case, and that he was not attorney in any other suit in which Brown was the defendant, at the term of the court at which the plaintiff recovered his judgment against Brown, nor afterwards, and that he directed the officer to commit Brown on the execution. The attorney further testified, that he did not attend the examination of Brown.</p> <p>A default or a nonsuit was to be entered, according to the opinion of the Court upon the facts in the case.</p>

Assumpsit against the executor of Daniel Boardman, on a promissory note as follows : “Worthington, June 13th, 1833. For value received we, Thomas D. Wasson, as principal, and Daniel Boardman, as surety, promise to pay Lathrop Reed or bearer three hundred dollars with use sixty days after date. Thomas D. Wasson. Daniel Boardman.” On the note was indorsed, under date of September 5, 1833, a payment of $110-20.

Assumpsit for money paid by the plaintiff at the request and for the use of the defendant. The action was brought to enforce contribution from the defendant to the payment of a promissory note, dated July 26, 1824, signed by Ebenezer Warner, as principal, and Rufus Stratton, Elihu Phelps, and the parties to this action, as sureties, payable to Anna Marsh, for the sum of 1500 dollars and interest.

This was an action of the case against the sheriff of the county of Franklin, for the default of D. Wright, his deputy.

Writ of entry. The tenant pleaded the general issue, and - gave a notice of defence, claiming title to a portion of the demanded premises, and disclaiming the residue. The demand-ant denied both grounds of defence. At the trial, before Morton J., the demandant introduced various deeds to Elisha Hunt and a deed from Hunt’s administrators to the demandant.

Assumpsit to recover the amount paid by the plaintiff on a note signed by himself and Lilburn Lapham, dated February 3, 1834. Trial before Morton J. It appeared, that when the note was given the defendant resided in Rhode Island, and that Lilburn was his minor son, residing and doing business in Palmer, in Massachusetts. The plaintiff paid the note on February 22, 1835. He was a surety merely, having received no part of the consideration.

Covenant broken. The declaration alleged that the defendant on July 10, 1835, conveyed certain land to the plaintiff, and covenanted that it was free from all incumbrances, whereas the defendant had mortgaged a part of it to one Lyman, to secure the payment of 1132 dollars and interest, of which sum a large portion, to wit, 1000 dollars, was still' due and unpaid, and the land mortgaged was still chargeable with the payment thereof.

<p>This was an action of trespass for an injury done by a dog to the plaintiff’s sheep. It was brought on Revised Stat. c. 58, § 13, which provides that “ every owner or keeper of any dog shall forfeit, to any person injured by such dog, double the amount of the damage sustained by him, to be recovered in an action of trespass.”</p> <p>The declaration contained three counts. The two first charged the defendants as the owners and keepers of the dog which did the mischief, and the third, as the keepers simply.</p> <p>At the trial, before Putnam J., the defendants contended, that under the first and second counts it was incumbent on the plaintiff to prove that the defendants were both the owners and the keepers of the dog, and under the third count, that they were the keepers. But the judge ruled that it was sufficient to prove that the defendants were either the owners or the keepers of the dog. To this decision the defendants ex cepted.</p> <p>It was proved that the mischief was done by a dog belonging to one Mowry, together with another dog alleged to belong to the defendants. There was no joint ownership or other connexion or concert in relation to the dogs, between Mowry and the defendants. The defendants contended that they were answerable only for the damage done by their dog, and that the jury were bound to discriminate between the damage done by their dog and the damage done by Mowry’s dog and render their verdict accordingly. But the judge instructed the jury, that the owner of each dog was liable for all the damage which was done by both dogs while they were thus together. To this direction the defendants excepted.</p> <p>If the ruling of the judge on either of the above points was incorrect, a new trial was to be granted ; otherwise judgment was to be rendered for double the amount of the verdict.</p>

This was an action of debt on an award upon a submission purporting to be under the statute.

<p>Under Revised Stat. c. 14, which provides that in the election of county commissioners the voters of each town shall bring in their written votes on one ballot for three county commissioners, being all of different towns in the county, and that not more than one commissioner shall be chosen from one town, the names of the towns in which the candidates live, need not be expressed on the ballots : so that a candidate was held to be elected, although in order to give him a majority of the votes it was necessary to count both those containing his name simply and those cm which the name of the town was subjoined to his name.</p> <p>Where the petitioner was elected a county commissioner, but the board of examiners refused to give him a certificate of his election, and ordered a new election, at which another person was elected, it was held, that a mandamus would lie to the board of examiners to compel them to give the petitioner a certificate ; though he might likewise be obliged to resort to a quo warranto, to remove the incumbent chosen at the second election.</p> <p>Before proceeding to hear the parties on the petition for a mandamus, the Court directed that notice of the application should be given to such incumbent.</p>

<p>A mortgage was given by a son to his mother, who resided in his house, she having^ as was alleged, the privilege of living there under the will of her husband, which mortgage was conditioned, that the son should “ find her fire-wood for one fire, to be drawn and cut at the door (it for use.” It was held, that the destruction of such house by fire did not exempt the son from the performance of the condition ; and that he was bound to furnish the wood at such place as she should make her home, provided it should be within a reasonable distance, regard being had to the distance which the fire-woou had been customarily carried for family use.</p> <p>Alter the destruction of such house, the mother took up her residence with another son, and demanded of the mortgager, that lie should furnish her with fire-wood, to which demand he answered, that he was not obliged to furnish it at any place off of the farm ; she then demanded, that he should furnish it at the old place, tc which he replied, that he would see about it ; but no wood was furnished by him. It was held, that this was a sufficient demand by the mortgagee, and a refusal o& the part of the mortgager, to furnish the wood.</p> <p>It is no answer to the claim of the mortgagee, in such case, that she was at times living at some distance, she having pointed out a place where the mortgager might deliver the wood, within a reasonable and convenient distance.</p> <p>The same mortgage was further conditioned, that the mortgager should keep a cow for the mortgagee ; but the mortgagee was subsequently obliged to sell her cow at a low price in consequence of the cow’s being improperly kept by the mortgager. I was held, that it was not necessary, in order to charge the mortgager with the cost of keeping a cow for the lime subsequent to such sale, that the mortgagee should purchase a cow and tender her to the mortgager to be kept, the mortgager not having offered to keep another cow for her, nor given any assurance that one should be better kept.</p>

<p>Where the plaintiff made a contract with the father of a female child to take her in« to his family and, for her services, to maintain her in sickness and in health during the pleasure of the parties, and afterwards, when she had become ill, he gave notice of the fact to the overseers of the poor, and requested assistance from the town for her support, it was held, that as he had not given the father notice of hi* wish to put an end to the contract, it continued in force, and he had no right of action against the town for supporting the child.</p>

It appeared, that in December, 1818, the appellee, as ad ministrator de bonis non, cum testamento annexo, of Benjamin Kemp, settled his administration account in the probate office , and that Abigail… Held: that such decree was vacated by the appeal, and thereupon judgment was rendered for the appellee.

<p>The owner of certain real estate, in 1793 conveyed it to his daughter “ and to kef heirs born of her body ” “ to have and to hold the same ” to her “ and her heirs forever” and covenanted with her “and her heirs as aforesaid” that he would warrant and defend the same to her “ and her heirs as aforesaid ” against the lawful claims of all persons. It was held., that a present estate tail passed to the daughter by the deed; and that consequently, upon her death, it descended to her eldest son, to the exclusion of her other children.</p>

<p>This was an appeal from a decree of the judge of probate.</p> <p>By an agreed statement of facts it appeared, that in November, 1831, Seth Hastings died intestate, leaving three children, one of whom was the appellant, at that time the wife of Caleb Hayward ; that letters of administration on the estate of the intestate were duly granted to William S. Hastings ; that in March, 1832. before any distribution of the personal estate was decreed, Caleb Hayward died intestate ; and that letters of administration upon his estate were granted to the appellee.</p> <p>If upon these facts the Court should be of opinion, that the appellee was entitled to a distributive share of the personal estate of Seth Hastings, the former accounts of administration settled by the administrator of Seth Hastings, were to be opened, and the decree of distribution made on the settlement of the first account, whereby a portion of the personal estate in the hands of the administrator was distributed among the three children of Seth Hastings, was to be reversed and a new distribution decreed and made. But if the Court should be oi opinion, that the appellant was entitled to a distributive share of such personal estate, then distribution was to be decreed, accordingly, of the balance remaining in the hands of such administrator after deducting therefrom the sum of $2000, which was to be afterwards accounted for by him.</p> <p>The case was argued in writing.</p>

<p>This action was referred to arbitrators under a rule of court,-the parties agreeing “to submit the plaintiff’s claim sued in said action and all claims of said Holbrook against him, to the determination ” of the arbitrators.</p> <p>At the bearing before the arbitrators, the plaintiff claimed, that they should take into consideration a joint and several promissory note for the sum of $500, made by him and Samuel Warfield, which, as he alleged, was not due, but upon which a suit brought by the defendant against the makers, was pending in this Court at the time of such submission ; and he filed a motion in writing to that effect. The defendant, a\ erring (in writing) that he had no action against the plaintiff alone, 'objected to this claim, and refused to bring forward such note, on the ground, that the action thereon was tot embraced in the submission.</p> <p>The referees refused to take the note in question into consideration, and awarded, that the plaintiff should not re ovei any thing of the defendant, and that the costs of court should be taxed and allowed according to law and the rules of the court.</p>

<p>A testator bequeathed the sum of $2000 to his granddaughter, to be paid to her by his executors upon her marriage ; hut in case of her not being married, they were to pay her the interest during her life, after she should have arrived at the age of eighteen years. Upon the settlement of their first account, the executors were directed to retain in their hands, the sum of $2000, under the provisions of the will, for the use of the granddaughter. It was held, that the sureties on the administration bond were responsible for the faithful performance of such trust.</p> <p>The executors in such case gave a joint and several bond with sureties, for the faithful execution of their duties; but after the death of one executor, the survivor neglected to pay over the amount due to such legatee, in consequence of which it was paid by the sureties. It was held, that the sureties could maintain no action against the personal representatives, heirs or devisees of the deceased executor, either for indemnity or contribution.</p>

This was a petition to the Court of Common Pleas, under Revised Stat. c. 117, § 4, for a decree authorizing the sale of certain real estate, and was submitted to the Court upon the following statement of facts agreed upon by the parties. On October 3, 1836, the petitioner who was a mechanic, entered into a written contract with Jeremy Stone, by which the petitioner became bound to build certain houses upon die land of Stone within a specified time and for a certain price.

<p>This was an action upon a promissory note dated Sépterr.ber I, 1833, for the sum of $500, made by the defendants, A H. Guild & Co., payable to Daniel G. Wheeler junior, or order, in three years, with interest, and indorsed by the payee in blank.</p> <p>The parties stated a case.</p> <p>The payee became insolvent previously to March I, 1834. The plaintiff having paid debts and assumed liabilities on his account, the note in question was indorsed and delivered to the plaintiff before March, 1834. Before that time, the payee being indebted to Brigham & Goodrich, Arthur Tappan & Co. and Alexander T. Stewart & Co., a compromise was made of these three debts, on March 1, 1834, and three several notes, payable to Tappan & Co., Stewart & Co. and Brigham & Goodrich, respectively, were made by Daniel G. Wheeler junior and the plaintiff. To secure the payment of these notes at their maturity, the plaintiff placed in the hands of Brigham & Goodrich, to whom the notes of Tappah & Co. and Stewart & Co. had been sent for collection, the note now in suit and two other notes, to be held as collateral security ; and Brigham & Goodrich gave a receipt therefor in the partnership name, setting forth that they had received them of the plaintiff and Daniel G. Wheeler junior, to be so held as collateral security.</p> <p>The notes payable to Brigham & Goodrich, Tappan & Co. and Stewart & Co. were paid at maturity, and at some time previous to November, 1835, the last note having been paid on September 1, 1835. On the 22d or 23d of December, 1835, the plaintiff called on Goodrich, with whom the business had been transacted, for the notes thus left in pledge as stated in the receipt; and the note now in suit was produced from a file of private papers of Goodrich, where it had been kept by him ; but as the plaintiff had not the receipt with him, the note was not delivered up.</p> <p>Soon after this, to wit, about the 24th of December, 1835, Joseph Stafford, one of the firm of A. H. Guild & Co., called on Goodrich, presented a receipt in the following words, and demanded that the note now in suit should be delivered up to him :</p> <p>“ $£>00. Received of Joseph Stafford, five hundred dollars in cash, to pay a note A. H. Guild & Co., indorsed by Asa Cutler, payable to D. G. Wheeler junior, five hundred dollars for note being due September, 1836 ; said five hundred dollars has been received in full payment of the note, and the note to be delivered up to the said Stafford.</p> <p>Nov. 28, 1835. D. T. Brigham.”</p> <p>Goodrich objected to delivering up the note, because the business of Brigham was distinct from that of Brigham & Goodrich, and because Brigham had no right to discharge or receive payment of the note. Brigham being out of towr, t was agreed between Stafford and Goodrich that the note, together with the receipt, should be placed in the hands of Ira Barton, Esq. in order to prevent it from being negotiated, and to save the rights of the parties till the matter could be adjusted-; 'but this was not known to the plaintiff until afterwards ; .and the note was produced in court by Mr. Barton, at the nlaintiff’s reouesU no settlement having been made.</p> <p>The plaintiff demanded payment of the note, after its maturity, of the defendants.</p> <p>Brigham and Goodrich had been attorneys at law and partners for some years before 1835, and continued to be partners for some time afterwards, transacting business under the firm of Brigham & Goodrich. Brigham was very extensively engaged, during this time, in other business, on his own account. Goodrich performed the principal part of the office business ; and the receipt first mentioned was in his handwriting.</p> <p>Brigham failed in the winter or spring of 1836 ; and the partnership was dissolved in June, 1836.</p> <p>If the Court should be of opinion, upon these facts, that the plaintiff was entitled to recover, the defendant was to be defaulted ; otherwise the plaintiff" was to become nonsuit.</p>

Assumpsit by the plaintiff, as executor of Azor Phelps, deceased, to recover a sum of money received by the defendant of Nathan Howe. The parties stated a case. The defendant was married to the testator in 1815, and during her coverture, took a note from Howe, payable to herself, for money which she lent him. This note was paid to her by Howe after the death of the testator ; and the sum so paid is the subject of the present action.

<p>Fhe interest of an heir at law in a distributive share of an intestate estate, in the hands of the administrator, is subject to be attached on the trustee process, before a decree of distribution, ami although it may be uncertain whether there will be any assets for distribution ; and the suit may be continued until sufficient opportunity has been given for the settlement of the administrator’s account and a decree of distribution.</p> <p>'I he interest of a husband in his wife’s distributive share of an intestate estate, is subject to be attached in the hands of the administrator, by the trustee process, at the suit of a creditor of the husband.</p>