Volume 38 — Massachusetts Reports

<p>A note and mortgage for $4500 having been made by P. to F., P. agreed to pay the debt in goods, and the plaintiff gave his note to F. as collateral security for the performance of P.’s agreement ; whereupon the first note and the mortgage were transferred to the plaintiff for his security. P. paid F. according to the agreement, and the plaintiff’s note was given up, and the first note and mortgage were transferred by the plaintiff to the defendant, the mortgage being supposed to be a good subsisting security, to be held by the defendant as collateral security for $756 due to him from P,, and to indemnify him against his liability to a bank on a note signed by P. as principal and the defendant and another as sureties ; and subsequently the defendant assigned che note for $4509 and the mortgage, to the bank, as collateral security for the note held by the bank. P. made a second mortgage of the land to one W. The right in equity of P. to redeem was taken on execution and sold for $2000 to the plaintiff, the defendant, and one C., who had agreed together to become owners of the land and to remove the incumbrances. The officer stated, at the time of the sale, that the sum due on the mortgage to W. was less than $2000. P. then conveyed his right to redeem from ;he sale on execution, to the plaintiff, the defendant, and C, for $300, they also agreeing to pay the debt to the bank. They accordingly paid that debt by giving heir joint and several note to the bank, which they afterwards paid, one third sacli, and the plaintiff and C. each paid one third of the sum of $756 due to the lefendant. The bank then re-transferred the note for $4500 and the mortgage, to the defendant, and he assigned two thirds of the same note and mortgage to the plaintiff and C., in consideration of the sums paid by them to the bank and to the defendant. W. afterwards defeated this mortgage on the ground that it had been paid ; and his claim under his own mortgage, instead of being Jess tlian $2000, turned out to be more than the whole value of the land. In assumpsit by the plaintiff against the defendant, for money had and received a nr' money paid, it was held) that the plaintiff was not entitled to recover one third f $300 paid to P., nor one third of $2000 paid for tlie equity of redemption sold on execution, but that he was entitled, on the ground of a failure of consideration, to recovo one third of the sums paid to the bank and to the defendant.</p>

<p>One summoned as trustee under the trustee process, answered, that he had had no dealings with the defendant, and had not made any promise or undertaking to him, within six years ; that no promise or agreement made previously thereto had been bioken or fell due, or any cause of action accrued thereon, during such term of six years; and that he did not believe that he had one cent of money which the defendant had a right to demand or collect of him, because, if for no other reason, every such claim was barred by the statute of limitations. It was held, that although the defendant might still have claims upon which the respondent might be charged, consistently with the truth of his answer, yet that in the absence of interrogatories in relation to such claims, he had set forth facts enough to avail himself of the statute bar, and was entitled to be discharged.</p> <p>But where the trustee in such case, answered further, that his belief was, that he did not owe the defendant any thing ; that he had not in his possession any goods put into his hands by the defendant that he knew of j that he did not know of having any money of the defendant in his hands, and did not believe that he had; that the defendant had never put into his hands any goods or money, either to be applied to some particular purpose, or accounted for, or to be delivered on demand, to his knowledge, where the purposes for which the same were put into his hands, were not fully answei ed or the money repaid to the defendant more than six years before the service of the writ; and that he did not know of having had, and did not believe, that he had had, within six years, any goods or money of the defendant, which the defendant had a right to demand and recover of him ; it was held, that the trustee was clearly entitled to be discharged.</p> <p>Under the process of foreign attachment, the plaintiff may put interrogatories to the trustee calculated to elicit facts that may tend to charge him, but he has no right to ask questions for the purpose of discrediting his disclosures. Hence he is not entitled to the privilege of a cross-examination; and what the trustee may have told other persons, or said on former occasions, is immaterial and not a proper subject of inquiry.</p>

<p>Where land was conveyed with all the buildings standing thereon except the brick fac• gory, it was held, that the grantor’s title to the land on which the factory stood smd the water privilege appurtenant thereto, did not pass by the deed.</p>

<p>A partnership consisting of W, B, S and S, doing business in one town under the name of W, S & Co., and in another under the name of B & Co., made three promissory notes in the name of W, S & Co. to the plaintiff’s intestate. This partnership was dissolved, and thereupon B, S and S formed a new company, doing business in both places under the name of B & Co., and became indebted to the intestate in the sum of $100*78. The new company soon after assigned their property in trust for the payment of their creditors, and in a schedule of the creditors and of the sums due to them respectively, annexed to the indenture of assignment, was the name of the intestate, with the sum of $100 set against it. By the indenture, the creditors who became parties to it “ release unto the said B, S and S, and each of them, the several debts and sums of money, written opposite to their respective names, in the schedules hereto annexed.” It was held, that construing the indenture by itself, the intestate, by executing it, released only the sum set against his name, and that parol evidence to show that the notes were intended to be embraced by the release, was inadmissible.</p>

<p>This was a bill in equity, setting forth, that Wyman Kendall, one of the defendants, was indebted to Ethan Kendall, the plaintiff’s intestate, in a large sum of money ; that on March 3, 1835, after the decease of the intestate, the other defendant, George Kendall, was duly appointed by the judge of probate guardian over Wyman Kendall, who was a spendthrift ; that there came into the hands of such guardian, in trust for the benefit of the ward and his creditors, property sufficient to pay the debt due from the ward to the estate of the intestate; that the guardian having refused to pay such debt, the plaintiff, as administrator, commenced an action at law against the ward for the recovery thereof, in which action the guardian appeared ; that judgment was rendered in such action in favor of the plaintiff for the sum of $1644'S4 damages, and for the costs of suit ; that execution was duly issued on the judgment and placed in the hands of an officer for collection ; and that the execution was returned in no part satisfied, the officer setting forth in his return, that he had made search, but could find no property belonging to the ward, and that the guardian had, upon demand made, refused to pay the execution or any part of it.</p> <p>The bill further set forth, that during all the time since the recovery of the judgment., and especially at the time of the demand of payment made by the officer, on the guardian, the guardian, as such, had in his hands sufficient personal property of his ward to satisfy the execution.</p> <p>Wherefore, and because the plaintiff had no complete and adequate remedy at the common law, and for the purpose of enforcing and regulating the execution of the trust, and because this was a case where there were more than two parties having distinct rights and interests, which could not be justly and definitively decided and adjusted in one action at the common law, the plaintiff prayed that the defendants might be held to answer to the matter of the bill.</p> <p>To this bill there was a general demurer, and a joinder.</p>

Trespass quare clausum. The defendant appeared by his guardian, and admitted the breaking and entering the close; and the case was submitted to the consideration of the Court upon the following statement of facts.

<p>After a highway has been regularly laid out by the county commissioners, and a time fixed for the town to complete it, and it is s lbsequently open to the use of the public, the traveller has a right to presume that it has in fact become a public highway, and the responsibility of the town for its safe condition thenceforth attaches.</p> <p>A highway was laid out near the central part of a large town, by the county commissioners, and recorded, and the time for completing it as fixed by the commissioners and by the town’s agreement with contractors for making it, had elapsed, and the contractors insisted that it was completed and that the selectmen ought to accept it and open it for public use, which they refused to do, and the contractors then opened it themselves and it remained open and was used by the public for six days, when an injury to a traveller was caused by a defect in it. Held, that the town had constructive notice of the way’s being actually opened for public use, and was responsible for the injury sustained.</p> <p>The contractors were held not to be agents of the town for opening the road for public use.</p>

<p>Slander. The plaintiff, in his second count, alleges, that before the committing of the grievances, &c. a certain indictment had been depending in the Court of Common Pleas against one Horace Parks, who had been then lately tried upon the indictment at Worcester, and on the trial the plaintiff had been and was examined on oath, and had given his evidence as a witness ; and that the defendant, “ in the presence and hearing of many good citizens of this Commonwealth, falsely, wickedly and maliciously did utter and publish, of and concerning the plaintiff, and of and concerning the said indictment, which had been so depending as aforesaid, and of and concerning the evidence by him the said Stone given on said trial, as such witness as aforesaid, certain other scandalous and false words, to wit, he (meaning the plaintiff) took a false oath on the trial (meaning the said trial, and thereby then and there meaning, that he, the said Stone, in giving his evidence as such witness on the said trial as aforesaid, had committed wilful perjury) ; ” &c. Plea, the general issue.</p> <p>Trial before Putnam J.</p> <p>The plaintiff introduced evidence of the speaking of the words. One witness testified, that the defendant, speaking of the trial, said the plaintiff took a false oath about a ninepenee ; and another testified, that the defendant said the false oath was about the defendant’s not being a man of veracity.</p> <p>The defendant then called one Clifford as a witness, and proposed to inquire of him to what the plaintiff’s testimony alluded, in order to show that if it was false it was not perjury, because it was not material to the issue.</p> <p>The plaintiff objected to this evidence, because the defendant, when he spoke the words, did not give an explanation of what had been testified in the case, or what the issue was, so that the witness who heard the words could know whether what the plaintiff testified was material or not.</p> <p>The judge admitted the evidence, and Clifford stated, that the plaintiff testified on the former trial, that Clark was not a man to be believed and his character was not good ; that he might have testified to more, but the witness could not recol lect; and that the plaintiff might have been on the stand half an hour.</p> <p>There was no testimony except that of Clifford, as to what the plaintiff did testify on that trial.</p> <p>It was proved, that the trial alluded to was that of Parks, on an indictment for, an assault and battery upon Clark, who was a witness against Parks, and that the plaintiff was called as a witness by Parks.</p> <p>The- jury were, instructed, that the words as laid in the writ,' if proved, were actionable, unless the defendant accompanied them by an explanation showing that they did not charge the crime of perjury; that it was competent for the jury, in this case, upon the evidence before them, to go into the inqu’ry and to find whether what the plaintiff testified in the trial of Parks, was material to the issue in that trial, and if it was not, that the words spoken did not charge the plaintiff with perjury.</p> <p>The jury returned a verdict for the defendant, and the plaintiff excepted to the foregoing ruling and instruction of the judge ; and also moved for a new trial because of the admission of the testimony of Clifford.</p>

This was trespass de bonis asportatis, for taking the plain tiff’s horse, wagon, harness and buffalo skin. The defendant pleaded the general issue, and filed a brief statement setting forth, that on May 15, 1836, the time of the taking, he was a field driver in Gardner, and as such took up the horse going at large in a highway in that town, and impounded him in the common pound.

This was an action of debt upon an administration bond, brought in the name of the judge of probate, but for the use of Ezekiel Brown, a creditor of the defendant’s intestate.

<p>Assumpsit to recover back the amount of a town tax, alleged to have been illegally assessed. Trial before Putnam J.</p> <p>It appeared, that in 1836 a tax was assessed by the assessors of the town of Millbury upon the plaintiff, to the amount of $92-59, for the payment of which, and costs, the collector distrained property of the plaintiff.</p> <p>The warrant for the town meeting at which the money was voted, contained the following article: e( Article 10th. To see if the town will make an appropriation towards purcnasmg a fire engine.”</p> <p>Upon this article the town voted “ to raise and appropriate $400 for the purchasing of a fire engine and necessary apparatus, provided that the same sum be raised by private subscription within ninety days, said engine to be located by the selectmen.”</p> <p>Within ninety days thereafter a subscription paper for the purchase of a fire engine was drawn up, containing a provision or condition that the engine should be located in the Armory village. This was signed by individuals promising to pay more than $400. The subscription was presented to the assessors within ninety days, and they declined accepting it on account of the condition. The person presenting it withdrew it, and consulted certain of the subscribers, who collectively had subscribed $285, and they consented that the condition should be erased. It was accordingly erased without the knowledge of any other of the subscribers. The paper was then presented to the assessors, and the person presenting it, who had himself subscribed $10, engaged verbally to guaranty the payment of the whole ; and thereupon the subscription was accepted. He was a responsible person, and after the expiration of the ninety days the whole of the subscription was paid.</p> <p>The 12th article of the warrant was, “ to see if the town will accept the road recently laid out by the selectmen, leading from the forks of the road at Grass-hill schoolhouse, to the house of C. C. Morey, and to raise money for the building of the same.”</p> <p>On this article it was voted, “ to accept the road recently laid out, See. and raise $100 to build the same.”</p> <p>It did not appear that the selectmen ever made any location of the road, except by the selectmen’s book of records ; which was kept in the building used by the town clerk as his office, and which book was in the case.</p> <p>In the valuation of the property of the inhabitants, upon which the tax was assessed, there was no column containing the “ true value ” of personal estate, nor a column containing “ reduced value,” but in the place where those columns usually are, was a column containing “ value.” And the like in regard to real estate.</p> <p>The defendants offered to prove that the column containing “ value,” contained true value, but the judge rejected the testimony.</p> <p>Upon these facts a nonsuit or a default was to be entered- or a new trial granted, as to the Court should seem proper.</p>

<p>Replevin to recover eighty sides of leather. The defendants claimed property in the leather by a purchase from Aldrich & Co., to whom it had been sold by the plaintiffs The plaintiffs alleged that the leather was obtained, by fraud and deception on the part of Aldrich & Co. in making their purchase, and that the defendants knew this when they purchased of Aldrich & Co. ; that Aldrich & Co. were greatly embarrassed in their affairs, as the defendants well knew, and that the purchase from the plaintiffs was made, either to induce the defendants to accommodate Aldrich & Co. by indorsing for them when the defendants were otherwise unwilling to do so, or that the defendants might obtain payment of what was due to them from Aldrich & Co., and which they were apprehensive could not otherwise be recovered. The defendants offered in evidence the deposition of Aldrich, but the plaintiffs objected to his competency as a witness, on the ground that he was interested to sustain the transaction. The objection was overruled and the deposition was read. The jury returned a verdict for the defendants, and the plaintiffs excepted to the ruling of the judge in admitting the deposition.</p>

<p>Trespass for breaking and entering the plaintiff’s closes, called the eight acre lot and the Brown lot, in Boylston. The defendant justified under a right of way across the lots to a three acre lot. It appeared that the three lots were formerly parts of one farm belonging to Matthew Davenport. After bis death, the farm was divided by commissioners and these three lots were set off to different heirs. By the report of the commissioners, “ each of the petitioners was to have the privilege of passing and repassing across each others’ shares as usual before the division.” The usual route to pass to and from the three acre lot was over the Brown lot and the eight acre lot, where the defendant passed. The defendant was the tenant of the three acre lot. He also owned a lot of nine acres adjoining it, purchased by him subsequently to the partition, which had never been a part of the Davenport farm. At the time of the supposed trespass these two lots were not separated by any fence. The defendant having mowed the grass upon the two lots, and having raked the hay into winrows running across them both, proceeded to load the hay upon a cart, following the course of the winrows and thus making up the load partly from each lot; and two loads thus made up were carried by his team along the usual route from the three acre lot over the Brown lot and the eight acre lot, which were then in the plaintiff’s possession. For thus passing with the two loads of hay the present action was brought ; and if the Court should be of opinion that the action could be sustained, judgment was to be rendered against the defendant for nominal damages ; otherwise the plaintiff was to become nonsuit.</p>

<p>In an action against a school district to recover back money paid for a school district tax, the plaintiff objected that the meeting at which the tax was voted, was called by a prudential committee, elected at a meeting warned under an irregular warrant. Held, that the question of the regularity of this warrant was not open ; it was sufficient that the committee was a committee defacto.</p> <p>In a book of records of a school district, it did not appear that at a certain meeting there was an election of a prudential committee ; and another record was introduced, which the clerk of the district testified contained a true record of the meeting, and in which the election of such a committee was entered ; he further testified, that both these records were made by him soon after the meeting, from loose memoranda put on paper at the time of the meeting. Held, that the election of the committee was duly proved, the records not being contradictory, and both being originals, and the one which contained the entry of the election being of equal validity with the other.</p> <p>Where the clerk of a school district removed into an adjoining district, but within the same town, and another was chosen in his stead but not sworn, it was held, that the first continued competent to act as clerk.</p> <p>Where a warrant directed a constable to warn a town meeting, fourteen days before the meeting, and he returned that pursuant to the warrant he had warned the inhabitants to meet at the time therein named, dating his return less than fourteen days before the meeting, it was held, that this date did not prove that the warrant had not been served in due season.</p> <p>Where a warrant for the annual town meeting, held by law for the purpose of choosing officers, contained articles 66 to choose all necessary town officers,” and “to choose all necessary committees,” and the statute allowed either of two modes of choosing committees, it was held, that under these articles the town was authorized to determine which mode should be pursued, and to pass a vote, “ that each school district choose their own committees,” this being one of the modes provided by statute.</p> <p>In an action against a school district to recover back a tax which had been paid to a collector defacto of the town, it was held, that it was not open to the plaintiff to object that the officer had not been duly elected and sworn.</p> <p>If the assessors omit through error of judgment or mistake of law, to assess on an individual a school district tax, the omission does not invalidate the assessment in regard to other persons.</p> <p>If one of three assessors, after due notice, refuses to attend and act in assessing a lax, the other two may proceed without him.</p> <p>In an action against a school district to recover back the amount of a tax paid for building a schoolhouse, evidence on the part of the plaintiff that there was already a sufficient schoolhouse in the district, was held to be inadmissible.</p> <p>The provision in Revised Stat. c. 23, § 37, that an assessment of a school district tax shall be made within thirty days after the clerk of the district shall certify to the assessors the sum voted by the district to be raised, is only directory, and does not prohibit an assessment after the expiration of that period.</p>

<p>This was an action of debt to recover a penalty, under Revised Stat c. 46, § 24, which enacts, that “ if any person shall bring into and leave any poor and indigent person in any town of this State, wherein such pauper is not lawfully settled, knowing him to be poor and indigent, and with intent to charge such town with his support, he shall forfeit a sum not exceeding one hundred dollars for any such offence.”</p> <p>At the trial, before Putnam J., it was proved that the defendant, on May 15, 1837, carried one Harriet White, a pauper, from the town of Charlton and left her at the poor house in Sturbridge. It was admitted that she was poor and in need of relief. ¡No evidence was offered to show that her settlement was in Sturbridge.</p> <p>The defendant proved that, being constable of Charlton, he conveyed the pauper to Sturbridge under a written order, signed by the overseers of the poor of Charlton, and dated May 15, 1837, as follows : “ To Jonathan Winslow, constable &T-. Whereas Harriet White, a pauper, whose lawful settlement is in the town of Sturbridge, in said county, is now actually on expense and chargeable to this town, you are therefore hereby directed, in conformity to the law in such case made and provided, forthwith to remove said Harriet White to the said town of Sturbridge.”</p> <p>The plaintiffs objected to- the introduction of this order, because it was not competent for the defendant to show bv parol, that the overseers of Charlton had complied with al the requirements of the statute necessary to authorize them to issue the order, as the order contained no recital of such proceedings. The defendant contended-that inasmuch as he was a stranger to the acts of the overseers, he was under no obligation to go behind the order ; that it was to be presumed, in his favor, that the overseers had done all that the law required, to authorize the issuing of the order; and that the fact, 'hat he thus removed the pauper under the order, was a defence to the action.</p> <p>The plaintiffs further objected, that as the order did not on its face state that the requirements of the statute had been complied with before it was issued, if it was competent at all, it could not be received in evidence without first showing that fact; and the judge ruled accordingly, in order that all the facts might be presented to the Court. Evidence was then introduced upon this point by each party.</p> <p>A nonsuit or a default was to be entered, according as the Court should determine the law.</p>

<p>By a writing of December 30, 1828, signed by U, reciting that A has tbit day, by his bill of sale, conveyed to C a quantity of machinery, and that C is indebted to A in a sum to be ascertained by appraisal, agreeable to a submission entered into by O and A, and that C has conveyed to U the same machinery, U agrees that A shall, after the machinery is put in operation, have a lien, by mortgage or otherwise, as collateral security for whatever sum shall be due him on settlement, said mortgage or lien to run five years from the 1st of January next. Held, that this writing, taken in connexion with the tact that it was delivered by U to the chairman of the arbitrators and not to A himself, had reference only to a settlement by the arbitrators, and that the making of an award was therefore a condition precedent to the liability of U to make the mortgage, and that whether an award wore or were not made, the writing gave no authority to C, without the concurrence of U, to make the mortgage.</p>

<p>Assumpsit to recover the price of goods alleged to have been sold and delivered to the defendants as partners.</p> <p>Balcom was defaulted. Tiffany defended against the action, and the only question at the trial was, whether he was a partner at the time of the sale.</p> <p>It appeared that on May 7, 1836, Balcom went to Providence and there entered into business as a trader, and that in November of the same year he removed to Douglas, where he hired a store and continued to do business as a trader. Tiffany went to Providence with Balcom and remained with him while there, and removed with him to Douglas, where he still continued in the store. The business was done in Balcom’s name. Considerable evidence was offered by the plaintiff, tending to show that Tiffany was active in the business, that he acted as if interested as a partner, and that he stated to one or more persons that he was interested in the business, but that it was done in Balcom’s name, as he (Tiffany) had formerly failed, and did not wish to be known in the business. Tiffany contended that he was only employed as clerk by Balcom.</p> <p>The plaintiff offered one Coggshall as a witness, to testify in regard to certain statements and offers made by Tiffany to him in Douglas, relative to going into business, in 1835, as copartners in the name of the witness, and the manner he had done business before in the name of other persons, to keep his property secure from attachment. This the defendant objected to as not being competent evidence to show a copartnership with Balcom in 1836. But the judge overruled the objection, and the witness testified that he became acquainted with Tiffany in 1835 ; that in September of that year he had a conversation with him ; that Tiffany said he could not do business in his own name, he had been in business before and had failed, and he owed some debts, and therefore he could not have any thing in his hands, and he was then doing business in one Church’s name ; that Tiffany had a conversation with the witness about going into company with him, to use the witness’s name ; that Tiffany said he could not use his own name on account of his old debts ; that Tiffany soon after did go into partnership wdth the witness, which continued two or three months, the business being done in the name of the witness.</p> <p>Ziba Carpenter and Comfort Carpenter were called by the plaintiff, and inquired of as to declarations of Tiffany in 1835, in Douglas, respecting the manner in which he was then doing business in the name of another, and respecting a desire expressed by him to go into business with the witnesses and to make use of their names, stating to one of them as a reason for wishing to use his name, that he had old debts.</p> <p>This evidence was objected to by Tiffany, but admitted b) the judge.</p> <p>The case was submitted to the jury to find for the plaintiff or the defendant, according as they should or should not find a copartnership existing between Balcom and Tiffany, and they returned a verdict for the plaintiff. The defendant excepted to the ruling of the judge in respect to the admission of the foregoing testimony.</p>

On May 4, 1833, Edmund Munroe made his last will, attested by only two witnesses, and died in August following. By the will he bequeaths $100 to Sally Munroe, $300 to his brother Nathan, $200 to his brother Solomon, $1500 to his brother Reuben, and $1000 to his brother Dana, directing that the principal of the 'two legacies last mentioned shall remain in the hands of his executor.

This was an appeal from a decree of Ira Barton, judge of probate of this county, ordering a partition of the real estate of Andrew Sigourney, late of Oxford, deceased, intestate. The appellees, by whom the application for partition was made, and the appellants, were heirs at law of the deceased.

Scire facias, dated in 1834. The declaration recites, that in the Court of Common Pleas holden for the county of Middlesex, in 1833, the plaintiff recovered against John Chandler, the sum-of $159-95 damages, and $19-95 costs ; that judgment was thereof rendered, and an execution was issued or those sums against the goods, effects and credits of Chandler in the hands and possession of the Boston and Lowell Railroad Corporation, trustees of Chandler, as appears of record ;…

<p>Bill in equity, dated August 6, 1833, stating, that m January, L796, the plaintiff was settled for life as a minister of the Gospel in Bedford (there being then but one parish in the town), in consideration of an annual salary of $333 and twenty cords of fire wood ; that from that time until the 27th of April, 1833, he faithfully performed the duties of a minister in the parish ; that in 1801, upon his application for an increase of his salary, the parish proposed to raise it, and to lend him 1000 dollars without interest during the time he should supply the pulpit, he giving security to repay the principal when he should cease to supply the pulpit ; that he acceded to this proposal, and gave his bond accordingly, with sureties, for 1000 dollars, and received the money ; that in 1811 his salary was further raised to 500 dollars and 20 cords of wood ; that on the 18th of December, 1832, at a meeting of the first parish in Bedford, to take into consideration the expediency of obtaining a dissolution of the ministerial connexion existing between the Rev. Samuel Stearns and the first parish in Bedford, it was voted, that “ it is expedient that said connexion be dissolved, and a committee of five persons was chosen to carry the vote into effect,” with power to employ counsel, to collect and make out charges against the moral and ministerial conduct of the Rev. Samuel Stearns, pastor, &c., and in due season to furnish him with a copy of such complaint or articles of impeachment, and request him to join and cooperate with said society in choosing, by. their committee, and calling a mutual ecclesiastical council to hear all matters of complaint against him, together with the present state and condition of the society, to judge, determine and decide the following question, viz. Is it expedient, proper and just, that the relation of the Rev. Samuel Stearns to the First Congregational Society in Bedford, as their pastor, be dissolved; ” that it was also “ voted, that the clerk transmit forthwith a copy of the doings of this meeting to the pastor ; for we feel ourselves morally absolved from longer contributing to his support, and the contract existing between the said Stearns and society is, and of right ought to be dissolved ; ” that the plaintiff consented to join with the parish in calling such council, and to submit to them the several matters specified in the vote ; that the plaintiff and the parish, by their committee, appointed seven clergymen (naming them) who, with one delegate to be chosen by each of the churches with which six of them were respectively connected, were to constitute the council; that the plaintiff and the parish submitted to the council, “ to judge, determine and decide ” the question, “ whether it were expedient, proper and just, that the relation of the plaintiff to said First Congregational Society, as their pastor, be dissolved ; ” and in and by the submission the parties submitted to the decision of the council the adjudication and determination of the terms and conditions on which the dissolution of that relation should take place, if it should be determined to be expedient, just and proper, that a dissolution should take place ; that the council assembled at Bedford on the 27th of February, 1833, and heard the parties, and made known their .decision, award and result, that “ no charge whatever has been sustained against the moral or Christian character of the Rev. Mr. Stearns, and they rejoice that the committee of the parish expressly disowned any intention to fix any criminality on Mr. Steams ; ” that “ it is expedient, just and proper, that the relation of the Rev. Samuel Stearns to the First Congregational Society in Bedford, as their pastor, be dissolved on suitable pecuniary considerations;” “that in the judgment of this council, a suitable pecuniary consideration would be made by adopting the two following principles, viz. that the note or bond for $1000, now held by the town or parish against the Rev. Samuel Stearns, be cancelled ; and that in respect to the salary from November, 1832, to the day on which the connexion shall be dissolved, the payment by the first parish, of such proportion of the whole sum due for that period of time, as the amount of taxable property belonging to the first parish or. the 28th of February, 1833, bears to the whole amount of taxable property belonging to both the first parish and the new society on the same day, shall be considered and taken as a full discharge by the Rev. Samuel Stearns, of all demands against said first parish for salary during that period ; ” “ that when the above conditions are complied with, by the First Congregational Society in Bedford, the ministerial "connexion of the Rev. Samuel Stearns with said society be dissolved, and is by such compliance dissolved.” “ The council have great pleasure in observing the liberal conduct of the town and parish towards the Rev. Mr. Stearns from the time of his settlement until the origin of, their recent difficulties, and conclude their result by expressing their earnest hope, that their advice and decisions will be approved by those at whose request they have been convened, and promote their best interests, the peace and happiness of this community, and the kingdom of Jesus Christ in this place.”</p> <p>The plaintiff further says, that after the result of the council was made known, and on or about the 10th of March, 1833, he made known to the parish that he should accept the result, and was ready to perform whatever he was required by it to perform ; that the parish, on the 22d of April, received the report of a committee appointed in March, in which the committee say, that they feel it a duty incumbent on them to express their satisfaction with the decision of the council “ on the question submitted to them for their consideration, namely, Is it expedient, proper and just, that the connexion, &c. be dissolved. The care taken by the council, that the ¡'arish should not suffer by a division of the society, in which the Rev. Mr. Stearns was charged with having an agency, the reduction of his salary from the 9th of November, 1832, to the day on which the connexion shall be dissolved, being in amount equal to the proportion of all the taxable property which formed the new society, proves to the satisfaction of the committee, that the council considered their main charge as fully substantiated. And although the decision was connected with a pecuniary consideration, not submitted by the parish, the committee feel confident, that the council, seeing the past generosity of the parish to their pastor, &c. concluded that the parish would not shrink from performing a deed of charity, by cancelling a debt of $1000, due from said pastor to said parish, which sympathy seemed to require for an aged minister. The committee ask leave to report, that in their opinion it will be best for the parish to accept the result of the council, when they shall be possessed of adequate funds for settling with the Rev. Mr. Stearns, and such unanimity shall prevail in the parish as to warrant the belief that it will be for their interest to do it.” The parish accepted the report, and chose a number of persons to be joined to the last-mentioned committee, and voted “ that the said committee have full powers to accept of the award of the ecclesiastical council, &c. when they shall find adequate means in the treasurer’s hands for that purpose, and shall deem it to be for the interest of the parish to do it. And said committee are hereby authorized to provide for preaching of the Unitarian denomination, to supply the pulpit when necessary.”</p> <p>The plaintiff further alleges, that he hoped and expected that the parish would perform the award and result within a reasonable time, and awaited a compliance therewith, and that he continued to perform all his ministerial duties in the parish, as far as the parish would permit him to perform them, until after the parish had held three meetings subsequent to the meeting of the council, and until the 27th of April, 1833, on which day his salary for the next preceding year became due ; and on that day, a reasonable time having elapsed for the compliance of the parish with the award and result of the council, and there being no sufficient hindrance or impediment to their acceptance, the plaintiff sent to the committee last mentioned, a notice to the parish, that “ having accepted said result, and having complied with the same to the present time, he considers his connexion with said parish dissolved by said result and the vote of the parish passed at their meeting on the 22d of April instant, and that he desires a final settlement with said parish, on the terms prescribed by said result.”</p> <p>The plaintiff further states, that he never sought a dissolution of his connexion with the parish ; but that the parish, being induced thereto by a change in the religious sentiments of a majority of the parishioners, and not by any change in ihe plaintiff’s sentiments, did at different times and for a long period, without his consent and against his wish, employ several ministers of the Gospel, of a denomination of Christians different from his own, to preach to them in the pulpit which he had long occupied ; and that he did not seek nor desire to have an ecclesiastical council called, but the parish demanded a council; and that the parish accepted the result.</p> <p>The plaintiff further alleges, that the parish refuse to com ply with or perform* the award and result, and prays for a decree that his bond be delivered up to be cancelled, and that the parish pay him his salary due to him by the award and result of the council.</p> <p>The defendants demur to the bill;</p> <p>1. Because the Court has not jurisdiction, inasmuch as the bill does ■ not set forth any case, either of a trust, or of a contract in writing, where any party claims the specific execution of the same, and where there is not a plain, adequate and complete remedy at law.</p> <p>2. Because the object of the bill is to obtain a decree for the specific performance of a pretended award of the ecclesiastical council, whereas the result of the council imports only an expression of their opinion in the way of recommendation and advice, and was not intended to be an authoritative dec'sion in any way binding on these defendants.</p> <p>3. Because it appears by the plaintiff’s own showing, that the persons composing the council were not authorized to act as arbitrators and to decide any question of pecuniary consideration, or to make any binding determination or award between them, but were merely invited, according to ecclesiastical usage, to advise with the parties whether it was expedient, proper and just, that the relation between the parties should be dissolved.</p> <p>4. That the bill does not contain any matter of equity. whereon this Court can give the plaintiff, as against these defendants, any manner of relief.</p>

<p>This was a complaint under St. 1785, c. 66, against the defendant, as the father of a bastard child, of which the complainant was delivered on April 20, 1835.</p> <p>In the Court of Common Pleas, Williams J. presiding, it was admitted, that the complainant did not, in the time of her travail, accuse the defendant or any other person of being the father of the child.</p> <p>The court being of opinion, that such accusation in the time of her travail, was an essential prerequisite to the maintenance of the prosecution, directed that the complainant should be' nonsuited.</p> <p>The complainant thereupon excepted to this opinion and direction of the court. .</p>

<p>Writ of entry, dated May 7, 1836, in which the demand-ant complains that he was disseised by the tenant of 50 rods of land in Medford, bounded as follows : “ Beginning on the south side of Ship street by land formerly of Calvin Turner ; thence the line runs southerly by said land, formerly of said Turner, and by or near an old wharf, to Mystic river ; thence northerly and easterly by a fence now standing, about three rods and a half, to said Ship street; thence westerly by said street to the point of beginning aforesaid, measuring about fifteen rods and a half.” The tenant pleaded nul disseisin.</p> <p>At the trial, before Morton J., the demandant gave in evidence a deed from Mary Skillings and Ann S. Fowle to George B. Lapham, dated September 27, 1814, and the plan referred to in that deed; also a deed from G. B. Lapham to the demandant, dated December 20, 1822.</p> <p>The deed of Skillings and Fowle conveys a parcel of land, bounded “ easterly by land of Mr. Magoun, northerly by the road, westerly by land of Calvin Turner, southerly by land of John Cutter and by Mystic river, containing by estimation one acre, three quarters and four poles : for a more 'particular description of boundaries reference may be had to a plan taken March 31st, 1812, by Peter Tufts junior, surveyor.” The plan referred to excludes from the deed the parcel demanded in this action.</p> <p>The deed from G. B. Lapham conveys to the demandant a parcel corresponding with the one designated on the plan ; also all Lapham’s right, title and interest in a strip of land lying at the northwesterly corner of the other parcel, between the river and the road, and bounded northwesterly on land formerly of Calvm Turner, and described as part of the same premises bought by G. B. Lapham of Skillings and Fowle.</p> <p>To prove his possession the demandant introduced the following witnesses : —</p> <p>Nathan Adams, who testified that he prepared the deed from G. B. Lapham to the demandant, and knew that Turner held a piece of land, but did not learn his boundary line ; and that the strip of land in question was never enclosed : —</p> <p>Calvin Turner, who testified that he owned his shipyard about thirty-five years, terminating about eighteen years ago, and for some time after G. B. Lapham had purchased of Skillings and Fowle ; that G. B. Lapham, after his purchase, built a cross fence at the westerly end of his lot as described on the plan, and that the posts are there now ; that the witness thought his line was 30 or 40 rods from the cross fence ; that he used this bank (the land in dispute) as much as anybody else ; that G. B. Lapham never used it more than any other person ; that it was occupied by all the town’s people ; that the witness hauled out his timber upon and over it, and laid his timber upon it, and at one time occupied a great part of it for that purpose and for hewing timber ; and that there was a common landing-place there. Upon cross-examination he stated, that he generally occupied pretty near to the cross fence, say within 20 or 30 feet of it, where the landing was ; that no one ever molested him ; that G. B. Lapham once claimed the right to carry the fence up to the witness’s shipyard, but that the witness told him he must keep back at the cross fence ; that the witness never knew him to use the land in dispute.</p> <p>Other witnesses testified to acts of ownership done ly the demandant, and to the use made of the land by other persons.</p> <p>The tenant, objecting that the demandant had not made out a case, proceeded, on the suggestion of the court, to state the defence and put in his evidence.</p> <p>A nonsuit was entered by consent, subject to the opinion of the Court.</p>

<p>Underneath the signature of the payee of a negotiable note indorsed by him in blank, were written the following words signed by the defendant • “ I guaranty the payment of semiannual interest on this note as well as the principal.” It was held, that such guaranty was not negotiable, in itself, nor made so by being written upon a negotiable instrument; and therefore that no action could be maintained on such guaranty by one who subsequently became the holder of the note.</p>

<p>The admission of irrelevant evidence is not a sufficient ground for setting aside a verdict, where there is no reason to apprehend that it could have had any improper influence upon the jury; but if it had a tendency to prejudice their minds, it may induce the Court, in the exercise of their discretion, to grant a new trial.</p> <p>Thus, where, in an action of assault and battery, the defendants, in order to excuse violence used by them in arresting the plaintiff while he was in a state of intoxica tion, offered evidence, for the purpose of showing-that ardent spirits had a specific and peculiar effect upon the plaintiff, increasing his power and making him furious and unmanageable, that more than a year after the alleged assault, the plaintiff, while intoxicated, threw stones at several persons, resisted the officers who arrested him, and otherwise exerted great power and fury, it was held, that this evidence was irrelevant; and that the admission of it was a sufficient reason for granting a new trial.</p>

<p>This was an action on the case for damages sustained by the plaintiff, by the overturning of his stagecoach on a highway in the town of Carlisle, in consequence of alleged defects in the highway.</p> <p>At the trial, which was before Morton J., the jury were instructed, that the burden of proof was upon the plaintiff, to satisfy them beyond reasonable doubt, that the overturning of the coach was caused by a defect in the highway, and not by his own negligence, and for this purpose, to show that he was using ordinary skill and diligence at the time when the accident happened.</p> <p>The jury returned a verdict for the defendants. The plaintiff excepted to the instruction to the jury</p> <p>If such instruction was erroneous, the Court were to grant a new trial ; otherwise judgment was to be rendered on the v erdict.</p>

<p>An action of trover or replevin may be maintained in the name of a parish, for the recovery of the parisii records.</p> <p>Under Revised Stat. c. 20, no person can become a member of a parish without its consent.</p> <p>Any person washing to become a member of a parish, must express his desire in writing, and the parish, by a direct vote or by the act of an authorized agent, must accede to the application, in order to constitute him a member.</p> <p>It is not a valid objection to an election, that illegal votes were received, if they did not change the majority.</p> <p>Several illegal voters having been permitted to vote at a parish meeting, in the election of officers, many of the legal voters protested against the proceeding and withdrew without voting ; but the persons declared to be elected having received the votes of a majority of the legal voters who remained and voted, it was heldt that they were duly elected.</p>

<p>Under a warrant in the usual form, on a complaint for larceny, the officer is authorized to break and enter the shop of the person accused, and seize the chattel alleged to have been stolen.</p>

Dodge, in his answers, states that Walker made a sale to him, in the form of a bill of parcels, of certain provisions and furniture to the amount of $161-80, for the purpose of securing the payment of a debt due from Walker to the respondent; that the debt was between $75 and $100 ; that all the articles were delivered to the respondent at the date of the bill of sale, but that most of them were left in the possession of Walker and never taken away by the respondent; that…

<p>»By an act incorporating an insuranóe company it is provided, that if any alteration shall be made in any building by the proprietor thereof, after insurance has been made thereon with the company, whereby it may be exposed to greater risk from five, the insurance shall be void, unless an additional premium and deposit after such alteration, be settled with and paid to the company ; but no alterations or repairs not increasing the risk, shall affect the insurance. In an action on a policy under this act, the jury were instructed, that the alteration must have been suen that a higher rate of premium would have been demanded to insure the building in its altered state than before, otherwise the alteration would not be material. It was held, that the instruction was correct; and that in the case of a material alteration it was not necessary, in order to avoid the policy, for the company to show that the loss had been occasioned by the alteration.</p>

<p>Action of the case against the sheriff of Middlesex, for the false return of W. A. Bancroft, his deputy, upon a notification under St. 1787, c. 29, entitled “ an act for the relief of poor prisoners, who are committed by execution for debt.” Trial before Wilde J.</p> <p>The plaintiff proved, that on August 7, 1835, one Sander-son was committed to the common gaol in Concord on an execution in favor of the plaintiff for $¡15"89 ; that on the application of Sanderson, a notification was issued to the plaintiff, by a justice of the peace, appointing' the time and place for taking the poor debtor’s oath, viz. the 7th of September, 1835, at one of the clock in the afternoon, at the house of Abel Moore, the deputy gaoler, near the gaol; that the justice issued his writ or precept, directed to the sheriff or his deputy, commanding them to serve the notification on the plaintiff, by reading it to him or by leaving an attested copy at his usual place of abode ; that the same was delivered to Bancroft for service, and that he returned thereon, that he r.ad served the notification by delivering to the plaintiff a true and attested copy on the 7th of August; and that at the time and place appointed in the notification, Sanderson took the oath and was thereupon discharged from any further imprisonment upon the execution.</p> <p>The plaintiff then proved, that the paper which was deliv éred to him by Bancroft, was not a true copy of the notification, inasmuch as the plaintiff was therein notified that the time appointed for taking the oath was at one of the clock in the forenoon ; that at that time he went from Groton to the dwellinghouse of Moore, in Concord, and found the door fastened and the lights extinguished, and remained near the house until about twoi o’clock A. M. and saw no person belonging to the house nor any movement therein, and then returned to Groton ; and that one Jacobs charged him three dollars for carrying him to Concord.</p> <p>The defendant then offered evidence, in mitigation of damages, tending to prove that Sanderson, at the time when he was admitted to take the oath, had no attachable or visible property. The plaintiff objected to this evidence as inadmissible ; but the objection was overruled and the evidence admitted.</p> <p>The plaintiff then proved, that on the 1st of August, 1S35, Sanderson recovered judgment against him for $12-12, and on ihe 6th of August sued out his writ of execution thereon, blit did not deliver it to Bancroft for service, until after his commitment upon the plaintiff’s execution; and that on the 10th the plaintiff paid the amount of that execution to Bancroft as a deputy sheriff.</p> <p>The jury were instructed, that prima facie the measure of the plaintiff’s damages was the amount of his execution and the actual expenses occasioned by the default of the defendant’s deputy ; out that the defendant had introduced evidence tending to prove that Sanderson had no attachable or visible property, at the time when he took the oath, and that this was competent evidence for them to consider, in estimating the damages ; and they were directed, that if upon this evidence, considered in connexion with the plaintiff’s evidence, they were satisfied that Sanderson was entitled to take the oath, at the time when he did take it, they should consider that fact '.n estimating the damages.</p> <p>The jury returned a verdict for the plaintiff for three dollars damages. The plaintiff excepted to the admission of the evidence objected to, and to the instruction of the judge.</p>

<p>Trover. The following facts were agreed on by the parties.</p> <p>On the 7th of August, 1838, Edmund Fletcher was the owner of the several articles of personal property sued for in this action, and on that day Silas Taylor and Daniel Ryan severally commenced suits against him for the recovery of bond fide debts due to them respectively, and the writs were delivered to the defendant, a deputy sheriff, with orders to attach the property. He accordingly attached the articles on the same day, and took them into his possession and held them by virtue of the attachments.</p> <p>On the 9th of the same August, Fletcher1 applied to a master "ln chancery for relief under Si. 1838, c. 163, entitled “ an act for the relief of insolvent debtors and for the more equal listribution of their effects,” passed on the 23d of April, 18.38. The requisitions of the statute were complied with, and toe plaintiffs were duly chosen and appointed assignees of Fletcher ; and afterwards, on the 27th of August, they demanded of the defendant the property in question, but he refused to deliver it, claiming to hold it by virtue of the attachment^.</p> <p>The debts for which the property was attached accrued before the 23d of April, 1838 ; and Taylor and Ryan, the plaintiffs in the actions, did not attend any meetings of the creditors of Fletcher.</p> <p>If upon these facts the Court should be of opinion that this action could be maintained, the defendant was to be defaulted; otherwise the plaintiffs were to become nonsuit.</p>

<p>In an action by a surviving partner against the heir of his deceased partner, upon a bond given by the deceased to indemnify the plaintiff against the payment of a»y sum of money due from the firm, the plaintiff offered in evidence a judgment recovered against him as surviving partner, in an action in which the heir took upon himself the defence. It was keldt that the judgment was conclusive against the heir, unless he could show that it had been recovered through the fraud or collusion of the plaintiff; and consequently, that evidence was inadmissible to show on what grounds the judgment had been recovered, or to show that the defence of the statute of limitations had been avoided by an acknowledgment of the debt, made by the plaintiff many years after the dissolution of the partnership.</p> <p>The plaintiff, one of two copartners, received payment of a note due to the firm, and gave a receipt to the maker, promising to deliver up the note on demand. On the dissolution of the partnership the plaintiff assigned to his copartner his interest in the demands due to the firm, and took from him a bond of indemnity against the payment of any sum due from the firm. Several years, afterward the obligor, without the knowledge of the maker of the note, recovered a judgment on the note, in the names of himself and the plaintiff, and levied on land, and the plaintiff released to him his title under the levy. The maker of the note afterward recovered a judgment on the receipt, against the plaintiff as surviving partner. In an action on the bond, against the heir of the obligor, it was held, that if the plaintiff knew that the judgment obtained by the obligor was founded on the note which had been paid, still his releasing his title in the land levied on did not prove his participation in the fraud of the obligor in recovering such judgment.</p> <p>In an action against an heir, brought after the remedy against the administrator was supposed to be barred by the lapse of four years from his appointment and legal notice of the appointment, the declaration averred that the administrator gave notice in the manner directed by the judge of probate by his order remaining on record, instead of averring that he gave the notice required by the statute ; but it appeared that the notice ordered was in fact the same as that prescribed by the statute, and the administrator’s affidavit on record showed that the order had bee» complied with. It was held, that the mistake was a defect of form only, and after verdict the plaintiff was allowed to amend, and without paying costs, by averring that the administrator gave the notice required by the statute.</p>

<p>One summoned under the trustee process, is not excused from answering interrogatories on the ground that they tend to the discovery of fraud on his part, which may render him responsible as trustee out of his own property, provided they do not tend to charge him criminally.</p> <p>Under a common assignment of an insolvent debtor’s goods in trust for his creditors, empowering the trustee to sell the goods in such manner as he may consider expedient and must for the interest of all parties, the trustee has authority to sell on a credit.</p>

Trespass for taking and carrying away and detaining certain cattle of the plaintiff. The case was carried into the Court of Common Pleas by appeal from a judgment of a justice of the peace.

<p>An notion was brought by tlie indorsee against the maker of a promissory note, dated the 9th of April, 1831, payable to S. on demand, and upon which the following words were written, without date, e< Received two hundred dollars in part; and the maker, for the purpose of proving that the note was not indorsed till it was over-due, and that it had been paid to S. previously to the indorsement to the plaintiff, introduced a witness, who testified, that he was shown a contract, signed by him, dated the 30th of July, 1831, and given to indemnify S. against his liability as surety upon another note of the defendant, for $400, which was discounted at tlie 1 owell Bank oa that day, and that on the same day, the defendant paid to S. a considerable portion of this money, which S. then, in his presence, indorsed upon a note which S. produced. It was held, that this testimony was competent, and that the jury were warranted in inferring from it, that the note in suit was not indorsed to the plaintiff till after the 30th of July, 1831, it being in his power, apparently, to show by S. the time when it was indorsed.</p>

Assumpsit on the following promissory note : “ Boston, August 16, 1832. For value received, we promise to pay Abel Parker, or order, five hundred dollars in thirty days and grace. Reuben Damon, Isaac Brooks junior.” The note was indorsed by Parker, the payee.

Trespass against the sheriff of Hampden, for taking and carrying away certain goods of the plaintiff. The defendant alleges that the property in the goods taken was in one Henry C. Baxter, and justifies under a writ of attachment in favor of Curtis and Meriam against Henry C. Baxter and one Moulton.

<p>In 1768 the inhabitants of a town, then administering their parochial and municipal concerns under their organization as a town, voted to purchase a lot of land to build a meetinghouse upon, and the same was conveyed to the town in fee simple, the deed not expressing any trust nor any limitation or restriction as to the use of the land. They soon afterward erected a meetinghouse upon the land, and in 1795 they also built a schoolhouse upon it. In 1822 they leased small parcels of the land for the term of twenty years to erect horse-sheds upon. In 1824, upon the incorporation of a portion of the inhabitants as a religious society, the residue became the First Parish. In 1836 the town purchased the right of the lessee of one of the horse-shed parcels and built thereon an addition to the schoolhouse. It was held, that the town, whilst it continued to act in the double capacity of town and parish, had a right to appropriate the land either to municipal or to parochial purposes, and from time to time to alter the appropriation ; that upon the creation of the second religious society, the portion of the land then in use for the school lemaioed vested in the town, and the residue became vested in the First Parish ; and that the extent of the appropriation for the school included not only the land actually covered by the schoolhouse, but so much of the land adjoining as was reasonably necessary and convenient for the occupation and enjoyment of the achoolhouse, that is, enough to secure convenient access, and to secure light and air on all sides of the house, with any rights of way to it enjoyed by the town.</p>

Assumpsit. Trial before Wilde J. The writ contained the common counts for work and labor, and materials found, &c. In the Common Pleas the plaintiff filed a specification, claiming to recover $250, the price of a buggy sold and delivered to the defendant.

Action on a mortgage. The writ was dated the 23d of February, 1837, and was returnable at the Court of Common Pleas, on the second Monday of March. At the return term, and within the first four days of that term, the defendant craved oyer of the writ, and officer’s return thereon. It appeared from the return, that the officer served the writ by an attachment of the defendant’s property, and by leaving a summons for his appearance at court.

<p>An action in which the ad damnum was laid at a sum over 100 dollars, was com* menced before the enactment of the Revised Statutes. At a trial in the Common Pleas after those statutes had gone into operation, the plaintiff recovered a sum less than 100 dollars. The defendant appealed, and in this Court the plaintiff recovered a less sum than in the Common Pleas. It was held, tha die plaintiff was entitled to tax his costs according to the law as it existed before the Revised Statutes were passeo.</p>

<p>This was an action on the case, commenced in November, 1837. In the Court of Common Pleas, the defendant moved that the plaintiff be required to furnish a sufficient indorser of the writ, on the ground that he was poor and irresponsible in point of property. The plaintiff contended that the court had no authority to order him to furnish an indorser, upon that ground, but Cummins J. overruled the objection. The defendant then introduced evidence to prove the plaintiff’s poverty. The plaintiff contended that the evidence was not sufficient nor competent to sustain the defendant’s motion, but the judge ruled that it was, and ordered the plaintiff to furnish a sufficient indorser by the second day of the then next June term of the same court. At that term, Strong J. presiding, the plaintiff having failed to comply with the order, the defendant moved that the action be, for that reason, dismissed. The plaintiff contended that the court had no authority by law to dismiss the action upon that ground ; but the judge overruled the objection, and dismissed the action, with costs for the defendant.</p> <p>To these rulings and orders the plaintiff' filed exceptions.</p> <p>The Revised Statutes, c. 90, § 10, enacts, that all original writs, in which the plaintiff" is not an inhabitant of the State, shall be indorsed by some sufficient person who is an inhabitant. and that if any plaintiff, after the commencement of his suit, shall -emove from the State, he shall, on the motion of any other party to the suit, be required to procure such an indorser ; “ and no indorser shall be required in any case, when any one, of two or more joint plaintiffs, is an inhabitant of the State, provided that the court may, in all cases, when it shall appear to them reasonable, require the plaintiff to procure a sufficient indorser.”</p>

<p>A lot of land was granted on the condition that it should be held for the support oí the first and all succeeding ministers who should be settled by a religious society to preach in a meetinghouse on another lot and all other meetinghouses which should subsequently be built on the same site j and in default of the appropriation of the rents and profits thereof to that purpose, the deed was to be void, and the land to remain in the grantor and his heirs as though the conveyance had never been executed The proprietors of the meetinghouse lot, to whom the parsonage lot above mentioned had also been transferred, took down the meetinghouse and erected a new one on a different site, having voted however that the meetinghouse lot should be reserved for the erection of a meetinghouse at some future period when they might deem it expedient, and this lot had remained vacant three years and a half when an action was commenced to recover the parsonage lot for a breach of condition. It was held, that there had been á forfeiture by reason of a breach of the condition ; that the grantor’s contingent interest was such an estate as was transmissible by devise, and that it passed under a residuary clause in the grantor’s will; and that under the Revised Statutes, the devisee, upon breach of the condition, might institute a suit to recover the land, without making an actual entry.</p>

<p>Where the facts proved on the trial of an issue to the jury are reported by the judge, by consent of parties, for the opinion of the whole Court, error will not lie to reverse the judgment rendered upon the report.</p> <p>In trespass quare clausum before a justice of the peace, the defendant pleaded not guilty as to part of the trespass, and as to the residue he justified under a demise from the plaintiff, and the action was thereupon removed into the Court of Common Pleas, pursuant to the statute. In that court the plaintiff new assigned a trespass after the expiration of the demise. The defendants filed a plea to the new assignment and the case was brought up to this Court upon a sham demurrer. Here the plea to the new assignment was waived, and the defendant pleaded to it anew. He then submitted to a default, subject to the opinion of the whole Court, and after-wards judgment was rendered for the plaintiff on the default. It seems, that whether the new assignment was properly or improperly allowed in the Common Pleas, the judgment should not be reversed on error on that account, for it did not appear by the record that the judgment was not rendered for a trespass proved to have been committed before the time mentioned in the new assignment, and if so, then the new assignment became immaterial, and this Court had jurisdiction of the case</p> <p>But it was held, that if the pleadings were erroneous, error would not lie on that account, for they had been waived by the defendant’s agreement to submit the case to the opinion of the Court.</p>

Writ of entry upon a mortgage. The parties stated a case. The plaintiff claimed possession by virtue of a deed of mortgage from the defendant to Samuel Burbank, dated August 6, 1833,'and given to secure the payment of a note of the same date for the sum of $1725, which was payable in three annual instalments, with interest annually, the first instalment of $402-78, being due on the 6th of August, 1836.

Assumpsit to recover a sum of money alleged to have been expended by the plaintiffs for the relief of Elijah Wixon and his wife, between August 25, 1835, and March 2, 1836. The parties stated a case. It was admitted by the defendants, that the paupers had originally a legal settlement in Dennis, and that the defendants were liable for the sum expended in their support, unless the paupers had subsequently gained a settlement in Brewster.

<p>On a complaint for flowing the plaintiff’s meadow and thereby rendering it less productive, evidence on the part of the defendant that other meadows on the same stream had, from natural causes, exhibited the same marks of deterioration, was held to be inadmissible, unless accompanied with proof that such meadows were similar to the plaintiff’s meadow.</p>

<p>Assumpsit on a promissory note. At the trial, before Dewey J., the defendant relied for his defence, on a release contained in an indenture of assignment made by the defendant to trustees for the benefit of his creditors, and in fact executed by the plaintiff. By the terms of the instrument, it was an indenture between the defendant, of the first part, the trustees, of the second, and creditors who should execute it within sixty days from its date, of the third.</p> <p>The plaintiff claimed to avoid the effect of the release, by showing that the actual execution of the instrument, on his part, took place a week or two weeks after the sixty days had expired. But this fact did not appear on the instrument itself.</p> <p>"If, in the opinion of the Court, the fact above relied on, would legally avoid the effect of the release, a new trial was to be granted ; otherwise the plaintiff was to become nonsuit.</p>

<p>In an action upon a promissory note, it appeared, that the real estate of the defendant was attached before the note was signed, but that it was not intended, that the writ should be used for the attachment of personal estate until afterwards ; and personal estate was in fact attached after the note was signed. It was heldy that the attachment of the real estate must be deemed the commencement of the action ; anl that, as the plaintiff had then no cause of action, the attachment, as well of the personal as of the real estate, was void.</p>

<p>Where prior to the commencement of an action against an administrator, his deposi tion was taken in perpetuam, at the instance of the plaintiff, in relation to facts which came to his knowledge before he was appointed administrator, but notice was not given to him in conformity with Revised Stat. c. 94, § 35, as a party interested, it was held, that the deposition was not admissible in such action, as a deposition, first, because such notice was not so given, and, secondly, because tbe deponent was a party to the record j but that it might be used as a confession of the administrator, even if it was taken for the express purpose of being so used.</p> <p>In an action against an administrator, it was held, that a private account-book of the intestate was not admissible on the part of the defendant, to prove payments of money to third persons, they being competent witnesses.</p>

<p>Assumpsit to recover damages for the breach of a contract, made between the plaintiff, the defendant and Samuel W. Curtis, who was the son of the defendant, by which it was stipulated, that the latter should stay with the plaintiff until he should be twenty-one years of age, and should receive therefor a certain sum per annum. The declaration contained a count in indebitatus assumpsit for money had and received, and a count on an insimul computassent.</p> <p>At the trial, before Dewey J., it appeared, that the plaintiff having made a claim upon the defendant for damages for a breach of the contract, the parties mutually submitted, by parol, all mattei 3 in dispute in relation to the contract to the determination of two arbitrators, and agreed to abide by theii award ; that the parties appeared before the arbitrators, who, after a hearing, awarded that the plaintiff should recover the sum of $ 90 of the defendant, as damages for a breach of the contract by him. The defendant having refused to pay the amount so awarded, the present action was instituted.</p> <p>It was agreed, that proper counts might be filed, if, in the opinion of the Court, the plaintiff was entitled to recover on the award, and the counts in the writ were insufficient.</p>

<p>Trespass quare clausum. The action was submitted to referees, under a rule of court. They awarded to the plaintiff the sum of $5, as the actual value of wood and timber cut and carried away by the defendant, and submitted to the determination of the Court the legal questions arising in the case.</p> <p>The trespass was committed in the lifetime of the plaintiff’s testator. In the year 1835, the plaintiff commenced a suit against the defendant for the same cause of action. To that suit there was a general demurrer and joinder in the Court of Common Pleas, and judgment was there rendered that the declaration was bad and that the defendant recover his costs. The defendant insisted that those proceedings were a bar to the present action.</p> <p>The present action was commenced by the executor after the Revised Statutes went into operation, and another question submitted to the Court by the referees was, whether it could be legally commenced by the executor.</p> <p>If the Court should be of opinion that the former proceedings were not a bar to this suit, and that the plaintiff had a right to maintain this action, judgment was to be entered that the award in favor of the plaintiff be accepted ; and if otherwise, the defendant was to recover his costs according to the award.</p>

This was an action on the case, by the owners of a fishing smack called the Columbia, against the owners of a vessel called the Love, to recover damages alleged to have been occasioned by the negligence and unskilfulness of those who nad charge of the defendants’ vessel in running against the plaintiffs’ vessel whilst lying at anchor in Provincetown harbor, on the 14th of May, 1835.

<p>This was an action on a policy of insurance. The defendants pleaded in abatement, that at the time of the purchase and service of the writ and long before, the plaintiffs resided in New York, without the limits of this State ; that the defendants had no established or usual place of business in this county, and had never held any of their annual meetings therein ; that their usual place of business was at Boston, in the county of Suffolk, and all their annual meetings had been held there ; and that the plaintiffs, if they had any cause of action against the defendants, ought to have brought their action in the county of Suffolk.</p> <p>The plaintiffs demurred to this plea.</p>

<p>The petitioner alleges, that he is, and for more than tva years last past has been, seised of a parcel of land in Seekonk ; that the Boston and Providence Railroad Corporation have laid out and constructed their railroad over the land, to his injury ; that he petitioned the county commissioners to estimate the damages, and they made report of their doings thereon, but did not estimate or award him damages; that being dissatisfied with their doings, he applied to them for a jury to assess the damages, but the commissioners refused to grant him a warrant for a jury ; and he therefore prays that this Court will issue a writ of mandamus to the commissioners, commanding them to issue their warrant for a jury.</p> <p>By the records of the commissioners it appeared, that they were of opinion, that the petitioner failed to show that the use of the land belonged to him in such manner as to authorize them to award him any damages for the loss thereof.</p>

<p>Assumpsit lor money paid, laid out and expended.</p> <p>At the trial, before Dewey J., it appeared, that on Novembev 6, 1837, an action was instituted against the defendants by Howard Lothrop ; that in that action the personal property of the present plaintiff, who was a member of the parish, was attached, and, through his agency, receipted for to the attaching officer; that the action was duly entered by Lothrop, and judgment rendered in his favor for the sum of $715-87, debt, and for costs ; that execution was issued upon such judgment on January 6, 1838, and delivered to an officer to be levied upon the property of the inhabitants of the parish; that on January 11, 1838, the officer notified to the present plaintiff, that he held such execution and should proceed to levy upon his property if the execution were not paid ; and that thereupon the plaintiff in this action paid to him the amount of the execution.</p> <p>The defendants consented to be defaulted, reserving the question of the sufficiency of the evidence to sustain the action, for the consideration of the whole Court.</p> <p>If in the opinion of the Court, the plaintiff in this action waj entitled to recover, judgment was to be entered in his favor , otherwise the default was to be taken off, and a new trial ordered.</p>

<p>Where, in a trustee writ, the defendant was described as an inhabitant of another State, and the officer returned, that he had summoned the trustee, and no service was made upon the defendant by a direct attachment of his property or otherwise, and the trustee disclosed, that he was indebted to the defendant but was not an inhabitant of this Commonwealth, it was held, that the courts of this Commonwealth were not authorized to take cognizance of the action, although personal notice of the pendency thereof was given to the defendant in pursuance of an order of court ; and that as these facts appeared upon the record, including the return and the answer of the trustee, the action should be dismissed on motion.</p> <p>The appearance of the defendant in such case, by an attorney of the court, merely to move that the action should be dismissed for want of service, will not give the court jurisdiction of the action 5 and as such motion is not technically a plea to the jurisdiction, it may rightfully be made by attorney.</p>

This was assumpsit against the indorser of a promissory note for the sum of $1000, dated April 25, 1837, made by Bray ton, Slade & Co., and payable to the order of the defendant, on demand, with interest. The trial was before Dewey J. The defence'rested on the ground, that there had not been such a demand on the makers and such a notice to the defendant, as were required by law.

<p>Certain persons were incorporated for the purpose of erecting a monument and a suitable building for their meetings, and were empowered to make by-laws for the reg ilación of the society, and to choose such officers as they should think expedient; ami their by-laws provided for the election of a treasurer and trustees, and required the trustees to manage the finances and property of the society and to exhibit the state of the treasury annually. The society voted that the trustees proceed in appropriating the funds of the society in erecting a suitable edifice, and the ti as-tees thereupon entered into a contract for that purpose, and when they had exhausted all the funds of the society there remained a debt for which they were personally responsible. In their annual exhibit they reported this debt as due from the society, and the report was accepted by the society and ordered to be recorded Held, chat this was a ratification of the acts of the trustees and an assumption of the debt ; and that it created an obligation on the part of the society to reimburse them in case of their being compelled to pay the debt.</p> <p>Held also, that the trustees, in virtue of their authority to manage the finances and property of the society, had power to bind the society by a promissory note, through the agency of their treasurer, or by such other obligations as are ordinarily resorted to in managing the finances of such institutions.</p> <p>Held also, that the trustees might lawfully change the liability of the society, by creating one debt to pay another, whenever in their opinion it became necessary or expedient.</p> <p>The trustees having voted that the treasurer should give a note to one of their number, who had paid a debt due from the society, without limiting the time in which the authority was to be exercised, it was held, that he might make the note several years afterwards, the claim not being then barred by lapse of time.</p> <p>A misrecital in such note, that it was given in pursuance of a vote of the society, (instead of a vote of the trustees,).was held to be immaterial.</p> <p>Held also, that the original memoranda or minutes of the proceedings of the trustees, made at the time by one of them by the authority of the board, were competent evidence to prove that they had empowered the treasurer to give such note; especially after the trustee who made the entries was deceased.</p>

<p>Upon an assignment of dower, the commissioners set off to the widow the southerly half of a dwellinghouse, “ that is, the soutlierly front room and the bedroom aback of it, with the chamber and garret over the same, and the cellar under it, with liberty to use the chamber and garret stairs and the entries,” “and liberty to use tlie kitchen” (which was in the northerly half of the house) “for washing and cooking when she may need ; also liberty to use the yard and well.” Subsequently the widow, as administratrix of her husband, being authorized to sell his real estate conveyed to a purchaser the northerly half of the same dwellinghouse &c. “ being all the said dwellinghouse, yard and garden spot and buildings that were not assigned ” to the widow as her dower. It was held, that such deed did not pass the whole of the house subject to the life estate of the widow in a part described, but only that part of the house which had not been previously set off and a life estate therein assigned to her as dower; and that the easements in the northerly half of the house set forth in the assignment of dower, were not merely personal to the widow, but, on her death, remained annexed to the reversionary estate.</p> <p>In the same case it appeared, that the only way within doors to the cellar, was through the kitchen, but that there was a way thereto outside. It was held, that the widow acquired no right of passage to the cellar through the kitchen, under the assignment, in the absence of any express words to that effect.</p> <p>In the same case it was held, that the grantee of the administratrix had a right to erect a partition on the dividing line between the northerly and soutlierly half of the garret, although the garret consisted of a single room, and all the windows therein were on his side of the partition, there being nothing to prevent the owner of the soutlierly half of the garret from opening windows into his own part thereof.</p>

<p>Petition for partition of two tracts of land situate in the town of Fall River. Trial before Shaw C. J.</p> <p>The petitioners alleged that they were seised and possessed of two undivided fifths of the two tracts, by virtue of the levy of an execution in their favor against George and Bradford Brightman, on the 27th of May, 1829. The petitioners produced in evidence a copy of the writ, judgment, execution and levy, under which they claimed. They also produced the will of the grandfather of George and Bradford Brightman, which was proved in 1805, for the purpose of showing the interest which George and Bradford had in the premises at the time of the levy. The testator devises a farm, of which the two tracts above mentioned are a part, to his five grandsons, Edmund, Nathan, Henry, George and Bradford, in fee, subject however to a life estate in the whole devised to his son George, and in case Hannah, the wife of his son George, should survive her husband, then to a life estate in one third devised to her.</p> <p>George, the son, died before the 2d of July, 1824. Hannah, his widow, is still living. Henry died in June, 1826, and his portion of the land descended to his mother, brothers and sisters, being ten in all.</p> <p>The petitioners also produced in evidence an indenture, dated the 2d of July, 1824, between Henry, George, Bradford, Edmund and Hannah, their mother, by which one third of the farm was assigned to Hannah for her life. Also two deeds of quitclaim, dated the 17th of September, 1824, one from Henry, George and Bradford to Edmund, the other from Edmund to Henry, George and Bradford, by which deeds a nartition of the farm was made between them, Henry, George and Bradford taking their part together on the northerly side of the farm, and Edmund taking his part on the southerly side</p>

<p>A conveyance by a tenant in common, of liis undivided interest in a part only of the land held in common, is invalid.</p>

Petition for partition of the farm mentioned in the case of Blossom et al. v. Brightman et al. ante, 283. The petitioner alleges that he is tenant in common of the land, with George Brightman, Bradford Brightman, and others unknown.

<p>Writ of entry. At the trial, before Dewey J., the plaintiff offered in evidence a record of a grant by the proprietors of common and undivided lands in Taunton, as follows : — “ Aug. 13, 1742. At the request of Samuel Williams Esq. is granted to the right of William Phillips half an acre in the ten acre division.” He likewise produced the will of Samuel Williams and the will of Seth Williams, containing words sufficient to pass the land in question, provided the testators were seised of it; and he derived his title under these wills.</p> <p>Job Godfrey, the present clerk of the proprietors, testified that the usual mode in which a title was gained from the proprietors, was by a grant like the one above referred to, followed by a location made by a committee of the proprietors, and that when no location had been made within ten years after the grant, it was customary to apply to the proprietors for a renewal of the grant.</p> <p>Upon the production of the proprietors’ book, it appeared that no location had been made to Samuel Williams pursuant to the grant above mentioned. The book of grants and the book of locations were in the case.</p> <p>The plaintiff then offered in evidence the record of a judgment in an action of trespass commenced in 1793, in which Ingell, the present defendant, was the plaintiff, and the plaintiff’s ancestors were the defendants. That action was referred, under a rule of court, and the referees reported that Ingell owned the locus in quo up to a certain line, and judgment was rendered upon their report. The land now demanded lies on the other side of that line.</p> <p>The plaintiff offered no evidence of occupation by himself or those under whom he claimed.</p> <p>The defendant introduced evidence in support of his title to the land.</p>

Trespass quart clausum. At the trial, before Shaiu C. J., it appeared, that the locus in quo was a parcel of land in New Bedford, forty feet in width and about tv/o hundred and eighteen feet in length ; that the plaintiffs claimed the fee under a deed from Charles Russell, dated on the 30th of October, 1834 ; and that the defendant claimed a right of way over it, as a street and way appurtenant to his house and land, which adjoined it on the south.

<p>This was trespass against the defendant for taking, carrying away and converting to his own use twenty-three cords of wood.</p> <p>The defendant justified the taking, on the ground, that the wood was cut upon his land, without right, and was his property, or that if any wood was taken by him, belonging to the plaintiff, it was because, by the plaintiff’s own wrong, it had been so mixed with the defendant’s wood that it could not be distinguished. The plaintiff contended, that the wood was cut upon his own land.</p> <p>The trial was before Shaw C. J. It appeared, that the wood in question was cut by the plaintiff on a tract of wood land in Dartmouth, known as the Ponegansett Cedar Swamp, and hauled out to a landing-place on the margin of the swamp, the soil of which belonged to the defendant; and that it was afterwards carried away by the defendant.</p> <p>It was assumed by both parties, that the land in dispute was part of an eight acre lot, so called, originally laid out by the proprietors of common and undivided lands in Dartmouth to Joseph and John Allen. In 1720 Joseph and John Allen made a division of the lot by a line drawn easterly and westerly through the middle, the northerly half, including the land in dispute, being assigned to John, and the southerly half to Joseph. John Allen, in his will, dated on the 9th of November, 1751, made a devise to his son Philip Allen, the terms of which were sufficient to include the northerly half of the eight acre lot; and on the 22d of March, 1768, Philip Allen conveyed the same in terms to David Shepard. In 1788, David Shepard devised to his four sons, David, Gideon, Allen and Jonathan, all his lots in the swamp, without specifying the lot in question, the devise being sufficient however in terms to pass "t, if the testator died seised of it. In 1791, David Shepard, the younger, conveyed to his brother Gideon, all his right to the lands devised to him by their father. Gideon Shepard subsequently died intestate, leaving one child, Caleb Shepard, from whom the plaintiff derived his title.</p> <p>The plaintiff also offered evidence proving, that the title to the northerly portion of the southerly half of the eight acre lot, which was originally assigned to Joseph Allen, vested in Judah Allen in 1761, and was conveyed by him to his son, Joshua Allen, in 1764.</p> <p>The defendant offered in evidence a deed from Joshua Allen to Melatiah Hathaway, the grandfather of the defendant, dated on the 30th of January, 1778, and recorded on the 16th of December, 1783, conveying a tract of land described as “ being part of the lot of swamp which David Shepard bought of Philip Allen, it being one half of said lot from the path across the lot, on an island of upland in the swamp, then westward to the river, and then all the west end of said lot to the upland ” of one Hart. But no conveyance was proved from David Shepard to Joshua Allen ; nor did it appear upon what grounds Joshua Allen claimed title to or power to sell such land.</p> <p>The defendant further offered in evidence the will of Melatiah Hathaway, dated in 1801 and proved in 1808, by which he devised to his son Henry Hathaway, “ my lot of cedar swamp that I purchased of Joshua Allen.” Henry Hathaway died intestate, soon after his father, leaving three children, one of whom was the defendant. The defendant subsequently purchased the shares of the other two children.</p> <p>The defendant also offered evidence to prove the running of lines by mutual consent, and the actual occupation of the land on each side of the lines, as claimed by him. This evidence was objected to, but was admitted as corroborative evidence of a lost deed, and also as tending to prove a disseisin of those under whom the plaintiff claimed.</p> <p>In respect to this evidence, the jury were instructed, that the recital in the deed from Joshua Allen to Melatiah Hathaway, the elder, in 1778, together with the evidence of the running of lines, by mutual agreement, and of the actual occupation of the land conformably to those lines, and acquiescence therein from 1778 until about 1830, the time of the sale and conveyance by Caleb Shepard, under whom the plaintiff claimed title, was competent evidence, from which they might infer, if they were satisfied with the sufficiency of it, that a deed conveying the land in dispute, had been made by David Shepard to Joshua Allen or to his father, Judah Allen.</p> <p>There was also evidence tending to show, that a part of the wood taken away by the defendant was cut by the plaintiff from other lots not in controversy ; and the plaintiff claimed a right to recover damages for the wood, whether he did or did not establish his title to the lot from which the residue was taken</p> <p>In respect to this evidence, the jury were instructed, that if the plaintiff took the wood without right from land to whv.h the defendant had title, the defendant had a right to take it away ; that if the bulk of the wood was taken from the defendant’s land, but a part of the plaintiff’s own wood was so mixed with the defendant’s wood in the same pile, either that the defendant did not know it, or could not, by any reasonable examination, distinguish it, the taking of such part was not a trespass, for which this action would lie ; á fortiori, if it was so done wilfully or fraudulently, in order to expose the defendant to the danger of taking some of the plaintiff’s wood, in case he should take his own ; but that it would be otherwise, if the defendant knew that a part was the plaintiff’s wood, and could, by reasonable care, distinguish and separate it.</p> <p>The jury having returned a verdict for the defendant, the plaintiff moved to set it aside on the grounds, that the jury were misdirected in matters of law, and that it was against the evidence and the weight of the evidence.</p>

<p>Where, previously to the sailing of a whaling ship, a seaman drew an order in favor of the plaintiff, on the owners, for his share of the proceeds of the voyage, and the agent of the owners declined accepting it, but told the plaintiff, that he would take the order if the plaintiff wished, subject to his control, and on the return of the vessel, would, with the consent of the seaman, save it, or try to save it for him, and the plaintiff assented thereto, it was keld9 that this was not an acceptance of the order on the part of the owners ; and that the order probably was sufficient to transfer to the plaintiff an equitable interest in the drawer’s share and to form a good consideration for a promise by the owners to pay it; but that such promise could not be implied from these circumstances, and that no action could be main tained on such order in the name of the plaintiff against the owners.</p>

Assumpsit for money had and received. The writ was dated on April 5, 1837, and was served by an attachment of the defendant’s personal property at one minute past twelve o’clock, in the morning of the same day. The trial was before Dewey J. To maintain the action the plaintiff produced in evidence a promissory note made by the defendant, for the sum of $247'67, dated January 2, 1837, and payable in ninety cays from date, at bank.

<p>A testator, after devising to his wife the use of his real estate, while she remained his widow, proceeded as follows : “ Should my wife marry or die, the land then shall be equal divided among my surviving sons, with each son paying sixty dollars to my daughters, to be equal divided among them, as soon as each son may come in possession of said land.” It was held, that the remainder given to the sons was contingent until the marriage or death of the widow of the testator ; and that upon her death, the estate vested in a son who was then living, to the exclusion of the heirs of another son who died before the widow but after the death of the testator</p>

<p>Assumpsit on a promissory note for the sum of $ 123-81, dated February 12, 1834. On the back of the note was an indorsement acknowledging the payment ol $75 on May 15. 1834.</p> <p>The trial was before Dewey J.</p> <p>The defendant contended, that the note was given by the defendant for the amount of three other notes held by the plaintiff against him ; that the amount actually due on the same was much less than the sum of $ 123-81 ; that that sum was taken as the true amount upon an erroneous computation made by the plaintiff; and that the sum now claimed was in part without consideration.</p> <p>To establish this defence, the defendant relied upon a memorandum in writing purporting to set forth the various computations made by- the plaintiff for the purpose of ascertaining the amount due on the three notes above referred to, which memorandum, as he contended, was in the handwriting of the plaintiff. In ordy to prove this, the defendant introduced several witnesses, who testified, that certain papers exhibited to them were signed by the plaintiff in their presence ; and the papers were thereupon submitted to the jury. No witness was produced to testify as to his acquaintance with the general hand writing of the plaintiff; and the defendant relied solely upon a comparison of the handwriting in the papers thus proved to be genuine, with that in the memorandum offered in his defence. It appeared, that the dates and sums in the memorandum, corresponded with the dates and amounts of the notes.</p> <p>The plaintiff objected to the competency of the testimony ; but the judge ruled that it was competent, and that it was for the jury to determine whether it was satisfactory.</p> <p>The jury returned a verdict for the plaintiff, for the sum of $23-10.</p> <p>If the Court should be of opinion, that the ruling was erroneous, the verdict was to be set aside and a new trial granted.</p> <p>The plaintiff also moved for a new trial on the ground, that the verdict was against the evidence, as regarded the amount deducted from the note by the jury.</p>

<p>A manufacturer of goods put them into the hands of a common carrier, at Providence, to be carried to Boston and left at the tavern where the carrier’s wagon usually stopped, and then went to Boston and presented an invoice of the goods to his factor, stating that they were on the way, and obtained an advance upon them. The manufacturer had previously consigned divers goods to the same factor for sale, and had received advances upon them, and his practice was to deliver the goods at the warehouse of the carrier in Providence, and the expenses of transportation were usually paid by the factor. Afterward, and while the goods in question were on the way, they were attached at the suit of a creditor of the manufacturer. It was held, that the factor had no lien, and that the attachment was valid.</p> <p>Where goods attached by a deputy of the sheriff, are deposited in the hands of a keeper, to be forthcoming on demand, the sheriff has a special property in them and may maintain an action for them against the keeper, for the benefit of the attaching creditor.</p> <p>The delivery by the keeper, of the goods so attached, to another person, claiming under an adverse title, was held to be equivalent to a conversion. But as they were delivered to the debtor’s assignees, who had a right to them, subject only to the prior attachment, it was held, that in an action brought by the sheriff against the keeper after the expiration of thirty days from the rendition of the judgment, the declaration ou'^ht to aver that a demand of the goods had been made upon the keeper, upon the execution of the attaching creditor, within the thirty days ; or if the plaintiff would rely on tta fact that the keeper had disabled himself from delivering the goods, he must aver it in the declaration.</p>

Assumpsit on a promissory note, dated February 14,1829, by which the defendant promised the plaintiffs to pay them or their order $ 584-72 in six months. Trial before Putnam J. The defence was the statute of limitations, the action having been commenced on the 14th of June, 1836. To take the case out of the statute, the plaintiffs relied on a letter from the defendant to one of the plaintiffs, as follows : “Brookline, July 14th, 1831. Mr. J. Bailey.

Trespass for taking the plaintiff’s cow. At the trial, before Putnam J., the plaintiff’s brother testified that his father gave the plaintiff a calf, which she brought up by hand, being the animal in question.

<p>Assumpsit on a bill of exchange drawn by the defendant on Daniel M‘Intyre, for 500 dollars, payable to the defendant’s own order, in four months, and indorsed by the defendant to one Everett, and by Everett to the plaintiff. Trial before Putnam J.</p> <p>It appeared that M‘Intyre accepted the bill immediately after it was drawn, but it was not presented to him for payment until more than ten days after it became due, nor was notice of non-payment ever given to the defendant until this suit was commenced.</p> <p>The defendant objected to the plaintiff’s recovery, on the ground of want of seasonable presentment and notice, but the objection was overruled. M‘Intyre was admitted as a witness, (the defendant objecting,) to prove that he had no funds in his hands when the bill was drawn, nor ever afterwards, and he was allowed to testify at large on all matters of examination.</p> <p>A verdict was returned for the plaintiff, on the ground that the drawee had no funds in his hands, the jury thereby finding that the bill was drawn for the defendant’s accommodation.</p> <p>If the rulings of the judge as to the admissibility of M£Intyre as a witness, and as to the liability of the defendant, were correct, the verdict was to stand ; otherwise a new trial was to be granted, or a nonsuit entered, as the whole Court should order.</p>

Petition for a certiorari to a justice of the peace. Foye was convicted before the justice, of disorderly conduct at an inspection of arms, on the first Tuesday of May, 1838, in a company of militia of which the respondent was the clerk.

Petition for a certiorari to a justice of the peace, by whom the petitioner had been fined for neglecting to appear at an inspection of arms, on the first Tuesday of May, 1838, in a company of militia, of which the respondent, was the clerk.

<p>Upon a petition for a certiorari to a justice of the peace, by whom the petitioner had been fined for non-attendance at a meeting of a company of the militia, it was proved that the notification, dated in April, 1838, directed the petitioner to appear at the usual place of parade of the company “ on the first Tuesday of May next at . . . clock in the . . . noon,” no hour being expressed.</p>

<p>A complaint before a justice of the peace, intended to be the basis of a final judgment, alleging that the defendant, without license, “ did sell spirituous and fermented liquors in a shop used for the purpose of tippling or gaming or in which tippling and gaming is allowed,” was held to be fatally defective, inasmuch as it did not state to whom the sale was made, or that it was made to a person unknown, nor that the quantity sold was either less than twenty-eight gallons or was to be consumed in the shop.</p>

This was assumpsit for goods sold and delivered, against three defendants, two of them named Vining, and the third named White. The Vinings were defaulted at the first term in the Court of Common Pleas. White put in a plea, and the action was brought into this Court by appeal, upon a common demurrer. Here the plaintiff discontinued against White and took judgment against the Vinings.

<p>This was an action of trespass against the defendant for taking away a quantity of hay, three cows, four swine, one horse, one horse-wagon, and other farming utensils named in the writ, in which the plaintiff had a special property.</p> <p>At the trial it appeared, that the plaintiff was a deputy sheriff, and that having a precept in favor of G. M. Peck against Nathaniel Drake, he attached the property in question and put it into the hands of Calvin Forrest as keeper.</p> <p>The defendant having the care, as an attorney at law, of another demand against the same Drake in favor of Howard Lothrop, made out a writ and directed another deputy sheriff to attach the same property ; which was done, and the property taken away, and afterwards sold on an execution in favor of Howard Lothrop.</p> <p>Peck brought his action against the sheriff, charging him with the neglect of his deputy (the plaintiff) for not keeping the property safely, and recovered the value of the property against the sheriff; to whom the plaintiff was liable, or had paid the amount. Whereupon the plaintiff brought this action, charging the defendant with wrongfully taking the property.</p> <p>The defendant denied having any knowledge of the prior attachment, admitted that he ordered the property to be attached provided it was free to be attached, and alleged that it was apparently free, on the premises of Drake, and that no one appeared to prevent the attachment and taking away of the property.</p> <p>Gay, the officer who made the second attachment, testified that on the evening prior to the date of the attachment, he and the defendant went towards the house of Drake ; that on the way they met Drake’s son, with whom the defendant stepped aside and conversed some time ; that the defendant then returned and said it would do no good to go that night; that they accordingly went back, and the defendant engaged the witness to go again the next day ; that they went the next day to one Wilbur’s, within about a mile of Drake’s house, and arrived there at about sunset, left their horse, and procured Wilbur to go and show them the way through the woods ; that they then went on together nearly to Drake’s house ; that the defendant and Wilbur then went away and left the witness ; that soon after-: ward they returned ; that before going to Drake’s the witness asked the defendant if the property had been attached before ; that the defendant replied, not to his knowledge, he heard it had been attached, but believed that that action was settled, as Drake, with the horse and wagon, had been at his house that day or the day before ; that the defendant ordered the witness to go to the house and attach all the property he could find, which he did at about 10 o’clock in the evening ; that the defendant said to him, if the property was attached, he would not meddle with it, and that was their agreement ; that the defendant directed him to go out and halloo, which he did, but no one came ; and that he found no keeper.</p> <p>To prove that the property was faithfully and carefully kept by "the plaintiff by the agency of his keeper, and that the defendant knew that the property was under attachment when he ordered the second attachment, the plaintiff called Forrest as a witness. The defendant objected that Forrest was interested in the event of the suit, for if by his testimony the position could be maintained, either that the plaintiff had faithfully performed his duty as keeper, or that the defendant knew that the property was under attachment, the plaintiff must recover in this action, and the witness would be discharged from all liability to the plaintiff, however negligent he might have been in his care of the property. But the objection was overruled, and the witness admitted. Forrest testified, that when he went to Drake’s on the night of the second attachment, about dark, the lights were put out and all was still; he looked round and saw nothing out of the way, and went away to some distance on Drake’s premises, and went to sleep several hours, and about 2 o’clock on Sunday morning went to his own house. When he returned in the morning, he found that the property was all gone. He was surprised, and Drake expressed surprise. He asked what it meant; the Drakes were silent. The straps of the cow-bells were cut and the bells left in the yard. Some time after the attachment, Lothrop said the old horse had been their way several times, and if he (Forrest) was not a clever fellow he would have attached him. Lothrop accused the witness of being in bed and not on the watch, and offered him five dollars to tell where he was that night.</p> <p>The judge commented on this evidence and applied it to the case, and suggested that from the circumstances of the lights being put out, the straps of the cow-bells cut, &c. the jury might infer a conspiracy between the Drakes and the Lothrops to wrest the property from the first attaching creditor, and that the defendant knew that the property was under attachment and that Forrest was keeper.</p> <p>A verdict was found for the plaintiff. If the whole Court should be of opinion that Forrest was legally admissible as a witness, the verdict was to stand ; otherwise a new trial was to be granted.</p>

<p>Where one is the owner of an ancient mill, to which there has been attached a race way, being an artificial canal, for conducting off the water, and without the free and unobstructed current of which the mill could not be worked, and such canal lias, from time immemorial, passed through the land of another, and there is no grant or contract regulating the rights of the parties, the owner of the mill has a right to enter upon the land through which the raceway passes and to clear out the obstructions therefrom, in the mode, if any, hitherto practised for clearing out the raceway, otherwise in the usual and ordinary mode of cleansing such canals, doing no unnecessary damage.</p> <p>The right or duty of the mill owner, in cleansing such raceway, to place on the adjoining banks, or to carry off the materials taken out, may depend on the nature of the materials and other circumstances in the particular case.</p>

<p>Although indictment is the proper remedy in the case of a public nuisance, yet where it is obviously necessary that such a nuisance should be immediately suppressed, it seems a court of chancery may interfere by injunction, until the slower process of indictment can be put in motion.</p> <p>A creek in a salt marsh, in order to be deemed navigable, must not merely be sufficient to float a small boat at high water, but must be navigable generally and commonly, and not at extraordinary high tides only, to some purpose useful to trade or agriculture.</p> <p>An individual or company, authorized by law to make a road, in the absence of positive enactment on the subject, are bound, in constructing the road over watercourses, on private land, to make bridges, culverts, or other provision for carrying off the water effectually, and to keep the same in suitable repair to effect the purpose ; and if they are under the necessity of diverting the water-course from its natural channel, they are at liberty to do so, making the like provision for carrying off the water.</p> <p>The extent and limits of these implied powers must be determined by considering what is reasonable in the particular case.</p>

<p>Assumpsit to recover the expenses incurred by the plaintiffs for the support &c. of Asia Madden and his family, amounting to $ 232-25.</p> <p>Upon a case stated it appeared, that Madden’s settlement was in Milford. On the 25th of December, 1837, he and his family were taken ill and were in need of relief in Medway, where they lived.</p> <p>On the 28th of December the overseers of the poo of Medway sent a notice in writing, which was received by the overseers of Milford on the same day, stating that Madden and his wife and two children, whose settlement was in Milford, were in Medway, sick and on expense, and that the expense would be charged to Milford until their removal, and requesting the overseers of Milford to remove them immediately.</p> <p>On the 24th of January, Mr. Clark, one of the overseers of Milford, and Mr. Davenport, one of the selectmen of that town, in consequence of the notice, went to Medway and found Madden and his family at Joseph Desper’s, where they met the attending physician. They there made an agreement with Desper to keep Madden and his family, and agreed with the physician to attend them at the charge of Milford after that time. The agreement with Desper was in writing and in the following terms :—“Medway, January 24, 1838. This certifies that the overseers of the poor of the town of Milford have this day agreed with the subscriber to be accountable to him for all the expenses that may accrue for the support of the family of Asia Madden from this date. Joseph Desper.”</p> <p>After this arrangement was made, Clark and Davenport saw Mr. Adams, one of the overseers of Medway, and Mr. Hunt, one of the selectmen, and told them that they had come to settle with the town of Medway for keeping Madden and his family, and showed the above paper, signed by Desper. Hunt and Adams thereupon made out an account, which was as follows :—</p> <p>Medway, Jan. 24, 1838</p> <p>Town of Milford to the town of Medway, Dr.</p> <p>To support of Asia Madden and wife and one child</p> <p>from Dec. 25th to Jan. 24th, being 4| weeks,</p> <p>each at $1 - - - 13-50</p> <p>To support of one of Madden’s children from Dec.</p> <p>25 to Jan. 2, being 1§ week, at $ 1 - - 1-50</p> <p>To funeral charges of one child - - - 5-00</p> <p>$ 20-00</p> <p>Clark paid Adams the above sum at that time, and Adams receipted the account.</p> <p>The family were removed from Medway on the 3d ;f February, and as soon as it was thought safe by the physician, and the expenses of their support from January 24th to their removal, including physician’s services, were paid by Milford according to the arrangement made with Desper.</p> <p>Upon these facts a nonsuit or default was to be entered, according as the Court should be in favor of or against the plaintiffs’ recovering.</p>

<p>This was a bill in equity, brought by the assignee of a second mortgage, to redeem the first mortgage. The defendant’s answer did not deny the plaintiff’s right to redeem, on his paying her the sum to which she was by law entitled.</p> <p>By the report of a master in chancery it appeared, that on the 23d of November, 1830, the land was mortgaged by one Bishop to the defendant, to secure the payment of six promissory notes of 1000 dollars each, payable respectively in one, two, three, four, five and six years from the 1st of April, 1831, with interest annually from the date ; that the two notes which first became payable, bad been paid ; that on the 1st of September, 1834, the defendant entered for breach of condition, there, being then due and payable 1000 dollars, the principal of the note which came to maturity on the 1st of April, 1834, and 220 dollars, interest on that and the three remaining notes, and that she had ever since continued in possession ; that since her entry she bad received from rents &c. a larger sum of money than was due and payable at that time ; that in 1837, when the suit was commenced, all the notes had come to maturity, and that the sum then due on the mortgage to the defendant was about 2900 dollars.</p> <p>The plaintiff, in his bill to redeem, offers to pay the defendant whatever may be due to her under and by virtue of her possession for condition broken ; and he prays that she may be held to render a just and true account, and to surrender and convey the premises to him.</p>

This was a bill in equity, setting forth, that prior to the 17th of October, 1833, Horace Kingsbury was indebted to the complainant in the sum of $ 148, or thereabouts, and also to several other persons ; that on the 20th of the same month, Kingsbury, being so indebted, absconded and left the Commonwealth ; that the complainant, on the 18th of that month, sued out a writ of attachment against Kingsbury and delivered the same to the defendant, then a deputy sheriff, with…

<p>Trespass. The first count was for breaking a close and carrying away a quantity of manure. The second was de bonis asportatis merely, for the same property.</p> <p>By an agreed statement of facts, it appeared, that the farm from which the manure was taken by the defendant, was formerly owned by Ira Blake, and was conveyed by him to the plaintiff in December, 1836 ; that at the time of this conveyanee, one Nason was tenant of the farm, under a parol lease from Blake, by the terms of which he was to hold from the 1st of April, 1836, to the 1st of April, 1837 ; that a part of the manure in question had accumulated at one end of the barn, having been thrown from the stable where Nason’s cattle had been fed ; that the other part had accumulated in the barnyard, being composed of hay, &c., that grew on the farm, and of loam or other earth therefrom carried. by Nason into the barn-yard ; that Nason had removed this part of the manure from the barn-yard to the side of a contiguous highway in the autumn or winter of 1836 ; and that this highway was over land of which the fee originally belonged to Blake, and was conveyed by him to the plaintiff, as before mentioned.</p> <p>It further appeared, that in March, 1837, Nason sold the manure in question, by auction, and that the purchaser was to take. it away before the 1st of April; that before the sale, notice was publicly given, at the request of Blake and also of the plaintiff, that they considered the manure to belong to the plaintiff, and that it would be claimed by him of any one who should undertake to buy it ; and that the defendant, with such notice, bid off the manure at the auction, and before the 1st of April, 1837, entered upon the enclosed grounds, and carried away that which was at the barn windows, and also carried away that which was by the side of the highway.</p> <p>If upon these facts the plaintiff was entitled to recover, judgment was to be rendered in his favor, for a certain sum ; otherwise he was to become nonsuit.</p>

<p>The defendant was convicted on an indictment for selling a quantity, less than fifteen gallons, of spirituous liquor, contrary to the provision in Revised Stat. c. 47, § 3, that no person shall sell wine, brandy, rum or other spirituous liquors, in a less quantity than twenty-eight gallons &c. without a license, on pain of forfeiting twenty dollars for each offence. Before judgment, the St. 1838, c. 157, was passed, enacting that no innholder, retailer, common victualler or other person shall sell any brandy, rum or other spirituous liquor, in a less quantity than fifteen gallons, on pain of forfeiting not more than twenty dollars nor less than ten dollars, for each offence, and “ that the provisions of all laws now in force, inconsistent with this act, are hereby repealed.” It was held, that in their application to the defendant’s case, the two statutes were not inconsistent in respect to the seller and the kind and quantity of the liquors, but that in respect to the penalty they were inconsistent; and the judgment was therefore arrested, there being no saving clause in the repealing statute, in regard to prosecutions then pending.</p>

<p>This was an action upon the case, for negligently setting a fire, on April 27, 1837.</p> <p>At the trial, before Putnam J., it was admitted that the defendant set the fire, and that it was done in a careless and imprudent manner. The plaintiffs proposed to prove gross negligence.</p> <p>The plaintiffs proved by one Johnson the following contract, not in writing : — That in November, 1836, Barnard agreed with Kittredge and Woodman for the purchase of a quantity of wood standing on about eight acres of ground belonging to Kittredge and Woodman. Barnard was to cut, cord, and have the wood measured by a sworn surveyor, and pay $ 3-50 per cord for the pine wood, and $4-50 per cord for the oak wood. Of the refuse wood Barnard was to have one half, and Kitt redge and Woodman the other half; and in case the parties should not agree as to how much was to be deemed refuse, it was to be determined by Johnson. Payment was to be made for the wood in May or June, 1837.</p> <p>It was admitted that the action was brought by the propel parties ; and that the plaintiffs had entered under the contract and had expended much labor upon the wood in cutting, splitting and cording it.</p> <p>One Kimball, called by the plaintiffs, testified that at the tequest of Barnard he measured 64 cords of the pine wood, and that there was about as much oak wood ; that the oak and refuse wood were not corded ; that he had been chosen measurer of wood, but had not taken the oath of office, and he informed Barnard of this fact, and Barnard said it was of no consequence.</p> <p>It was admitted that the wood was consumed by the fire, and the plaintiffs averred that they thereby lost all the labor they had expended thereon, and all the benefit that had or might have accrued to them under the contract, and all their property in the wood.</p> <p>The plaintiffs then proposed to prove the quantity and value of the oak, pine, and refuse wood, which had been cut under the contract, the amount of labor which had been expended by them upon the same, and all the particulars of value, for the purpose of fixing the amount of damages which they might be entitled to recover in the action.</p> <p>The defendant objected, on the ground that if the plaintiffs were entitled to recover damages, it could be only for the value of the wood (if any) belonging to them, destroyed by the fire.</p> <p>Upon this the case was taken from the jury by consent; and if the whole Court should be of opinion, that it was competent for the plaintiffs to prove and recover for the loss and damage under all or either of the above heads, the case was to be referred to two persons named, to hear the parties and determine the amount of damages.</p>

<p>Assessors of a town, conducting themselves with fidelity and integrity in assessing a tax, in pursuance of a vote duly certified to them, are not responsible in any form of action, for accidentally assessing a person not an inhabitant of the town and not liable to be taxed*</p>

<p>The defendant offered the plaintiff a certain price for a steam-engine, a part of the money to be paid when the engine should be taken away by the defendant, which was to be done in two or three weeks, and the balance to be secured by a promissory note. The plaintiff accepted the offer, and said, “ then you consider the engine to be yours as it is,” and the defendant said<c yes.” The boiler was set in bricks, in the plaintiff’s shop, and could not be removed until they were taken away, and the plaintiff was to take them away, which he did, the next week. The defendant told a witness he had bought the engine, and made inquiries on what terms he could get it carried to another place. The bargain was not in writing, and the defendant did not pay or secure any part of the price, and did not take away the engine. It was kelds that there was no delivery and that the sale was therefore void under the statute of frauds.</p>

<p>Writ of entry to recover three fourths of a parcel of land in Topsfield.</p> <p>Trial before Shaw C. J.</p> <p>The demandants and the tenant both claimed title under Henry Bradstreet. He died seised of the land in 1819, leaving the three demandants, Daniel Bradstreet, William Bradutreet and Abigail Kilham, together with Nathaniel Bradstreet, his children and heirs at law. By bis last will he gives to his wife all his personal estate, and the use of all his real estate during her life. The next item is:—“I give and bequeath to my son Daniel Bradstreet the sum of ten dollars, to be paid to him or his heirs by my executor hereafter to be named, at the decease of my said wife ; which sum, in addition to what I have heretofore given him, I consider as his full share of my estate.” He then givés, in similar terms, $10 to his son William, and $200 to his daughter Abigail. He then proceeds : — “I give, devise and bequeath to my son Nathaniel Bradstreet and to his heirs and assigns forever, the reversion of all my real estate expectant at the decease of my said wife ; together with all the rest, residue and remainder of all my estate, both real and personal, of every name and quality ; on condition that he pay all the abovenamed legacies and bequests according to the true intent and meanii.-¿ hereof And I do hereby constitute and appoint my said son Nathaniel sole executor of this my last will and testament.”</p> <p>The will was duly proved. The widow entered under it, and died on June 6, 1820. Nathaniel, the executor and residuary devisee, entered and held the land till his death, in 1828. John Porter was appointed administrator on his estate. In April, 1829, the widow and heirs of Nathaniel conveyed the land to Clark, the tenant, in fee with warranty.</p> <p>The ground of the demandants’ claim was, that the devise to Nathaniel was upon a strict condition of paying the legacies according to the tenor of the will; that the legacy to Daniel had not been paid ; that the demandants, as heirs at law, entered upon the land for condition broken, and thereby became seised, and thus might maintain the action on their own seisin.</p> <p>Daniel Bradstreet went into the western States more than thirty years ago, and had never returned. Evidence was of> fered for the purpose of showing that a demand was made on the executor by Daniel, or by some person in his behalf, foi his legacy, soon after the death of the widow, and that the executor refused to pay it. This evidence was left to the jury, with instructions that it was not the duty of Nathaniel, an executor or devisee, to seek the legatee and pay him, but to prove a non-payment of the legacy so as to work a forfeiture, (if such non-payment would work a forfeiture, which was a question reserved,) it must appear that a demand was made on the executor by the legatee, or by some person duly authorized by him to receive payment and give a receipt and acquittance ; that if such a demand and a refusal were proved, they should find a verdict for the demandants, otherwise for the tenant. The verdict was for the tenant.</p> <p>It was therefore to be taken as settled by the verdict, that no demand had been made on Nathaniel Bradstreet in his lifetime. No evidence was offered of any other demand until after the conveyance of the land to the tenant.</p> <p>Oliver Kilham testified, that in September, 1832, he went with William Bradstreet to the tenant, at his house. William asked the tenant if he was willing to pay the legacies which William’s father had given by his will. William said he had a power of' attorney from his brother to receive his ; he had it in his pocket and would show it to the tenant if he wished to see it. The tenant said he did not dispute his word and did not wish to see it. William then said, “ Are you ready to pay the legacies ; if you are, I am ready to receipt for them.” The tenant said, “ I have bought the place once and paid for it, and it does not belong to me to pay them; you have had your pay, as I understand, and there are receipts, and I will do nothing about it.”</p> <p>The tenant objected to this demand, as a demand for Daniel’s legacy, because no authority was exhibited, but this ground of objection was waived. Another ground, on which he insisted, was, that this being a demand on a stranger for all the legacies, two having been paid, was not a good demand for Daniel’s alone.</p> <p>The same witness testified, that a few days after, they went to Newburyport, to the house where the widow and heirs of Nathaniel lived, and William made a similar demand on them ; that the eldest daughter said to William, that he and Mrs. Kil ham had had their pay; that William said he had a power of attorney from Mrs. Kilham and Daniel, and asked the daughter whether she was willing to pay the legacies, and she refused to pay them ; that they then went to Porter, the administrator of Nathaniel, and William asked him if he would pay the legacies, and said he had come with a power of attorney from his brother Daniel and sister, Mrs. Kilham, to collect them ; and thai Porter said he had finished the settlement of the estate and put the papers out of his hands, and could do nothing more about it.</p> <p>The same witness testified, that on November 7, 1833, he went with William to the tenant’s and found him in his shop, and William said, u I have repeatedly called for those legacies and have not got payment, and I now come to demand and take possession of three quarters of the place, for myself, Daniel, and Mrs. Kilham.” The tenant said he should not give up the land before he was obliged to.</p> <p>The tenant proved, that on November 20, 1833, after the commencement of this action, a tender was made in behalf of the tenant and also in behalf of the heirs at law of Nathaniel, to Wdliam as attorney of Daniel, of the amount of Daniel’s legacy with interest from the time it was payable, which William did not accept.</p> <p>If the whole Court should be of opinion, that by law the demandants were entitled to é recover, the verdict was by con sent to be altered, so as to stand as a verdict for the demand-ants ; otherwise judgment was to be entered on the verdict for the tenant.</p>

<p>Bill in equity. By the bill and answer it appears, that in 1828 Ward Pool made his last will, wherein, after naming Abner Sanger as his executor and after providing for his widow during her life, he gave all the residue of his estate, real and personal, to the three children of his son Ward Pool, and to such other children of his son as might thereafter be born, to be equally divided between them but subject to the charge contained in the following item : — “ But from and out of the real and personal estate thus devised to my grandchildren, my will is, that an annual sum, not exceeding five hundred dollars, be drawn and applied towards the support of my said son Ward and Eliza, his wife, and the survivor of them, for their lives. And to effect this I appoint said Sanger to be my trustee of the real and personal estate so devised to my said grandchildren, empowering him to improve and manage it to the best advantage to those to whom I give it during the lives of said Ward and Eliza and the survivor of them, and from the rents and profits thereof to appropriate such annual sum, not exceeding five hundred dollars, towards the support of said Ward and his said wife, and the survivor of them, as in his judgment may he proper and necessary, and the residue to account for with said grandchildren and their guardian ; said Sanger to cease to be a trustee as aforesaid, and said trust to cease, upon the death of the survivor of the said Ward and Eliza.”</p> <p>The testator died in 1828, leaving a widow, his son Ward, his son’s wife Eliza, and his son’s three children, who were named in the will, the plaintiff being one of them</p> <p>Sanger, the executor and trustee, accepted the trusts, and at the death of the widow, in 1833, he took possession of the whole estate, real and personal, amounting to about $20,000, and held the same for the purposes of the trust until June, 1837, when the present defendant was appointed trustee. In July, 1837, the defendant received as the annual rents and income of the property, the sum of $ 1200, out of which he paid Ward Pool $ 500. The complainant and his guardian then demanded of the defendant an account of the annual proceeds of the property, and claimed the plaintiff’s share of the surplus income over and above the $ 500 so paid to Ward Pool. The plaintiff’s share, if he is entitled to any thing, is one fifth of the surplus, there being now five children of Ward Pool.</p> <p>The defendant refused to pay over any thing to the plaintiff or his guardian, and also refused to account with them.</p> <p>The complainant wishes to be educated, but has no other property than that which he may receive under the will, and his father has no means of support except the $ 500 before mentioned, which he receives annually.</p> <p>The bill asserts, that by the will the grandchildren of the testator and their guardian, are entitled to an annual account from the trustee, and to the surplus income over and above the annuity of Ward Pool. If the Court should be of opinion that such is not the proper construction of the will, the plaintiff then prays that a certain sum may be decreed to him for his maintenance during his minority.</p> <p>The answer denies the correctness of the plaintiff’s construction, and demurs to the jurisdiction of the Court as to that part of the bill which prays for a maintenance on account of the infancy of the plaintiff.</p>

Trespass de bonis asportatis. On a case stated, it appeared that in 1833 the plaintiff applied to the defendant for assistance in going into business. The defendant agreed to aid him by an advance of money, on the understanding that the plaintiff and William S. Bartlett, a grandson of the defendant, should become copartners.

<p>A notice of special matter to be given in evidence under the genera* issue, must con» tain a distinct allegation of the substantive matter of the defence, although it need not have the technicality of a special plea.</p> <p>In an action of slander the defendant offered a notice proposing to give in evidence under the general issue, facts proving or tending to prove the truth of the words spoken, and proposing to apply those fadts either in justification or in mitigation of damages, and stating the facts relied on, which, though they might be properly submitted to the jury in connexion with other evidence in support of a justification, did not alone prove the truth of the words. It was held, that the notice was insufficient, and that the facts stated were not admissible in evidence under the general issue, with such notice or without any notice, either in justification or in mitigation of damages.</p> <p>In an action of slander, if no notice is given of a defence under the statute of limitations, the plaintiff may give in evidence words spoken more than two years before the commencement of the action.</p> <p>But where the declaration alleged the words to have been spoken on a particular day within two years, and the plaintiff produced evidence of words spoken more than two years before the commencement of the action, the defendant was allowed, without terms, to file a plea of the statute of limitations.</p>

<p>This was a bill in equity, in which the complainants, T. M. Harris and Mary, his wife, and their daughter, Dorothy Harris, set forth, that Dorothy Dix, the mother of Mary Harris, on the 28th of February, 1822, made her will, in which, after bequeathing divers legacies, she devised and directed, as follows : “ I direct and hereby authorize my executor to dispose of all my real estate, at public auction or private sale, at Vis best discretion, and to make deed or deeds to pass the same, and out of the proceeds of the same and out of my other personal estate to pay all my debts and the charge of settling my estate and funeral charges, (always reserving my plate,) and what remains of said real and personal estate (excepting my plate) I give and bequeath as follows : one half thereof to my said daughter, Mary Harris, for her use and disposal during her life, and whatever shall remain at her death I give the same to her two daughters, Dorothy and Sarah, in equal shares ; and the other half to the children of my son, Joseph Dix, in equal shares, viz.” &c.</p> <p>The bill further set forth, that the testatrix died on the 29th of April, 1837 ; that Theophilus Wheeler, who was appointed executor, having declined accepting the office, the respondent, Knapp, was appointed administrator with the will annexed ; that Sarah Harris died in the lifetime of the testatrix, without issue ; that the administrator had sold the real estate and personal estate ; that by an account, which he had settled in the probate office, it appeared, that he bad in his hands, after the payment of debts and legacies, a large sum of money, as the residue of the estate, of which one half amounted to more than the sum of $ 8000 ; that the complainants, Thaddeus M. and Mary, by certain writings of disposition and appointment, dated on the 29th of January, 1838, ordered and appointed the sum of $2114-04, being a part of such residue, to be paid over by the administrator to the complainant, Dorothy; and that the administrator, alleging that he was apprehensive, or was advised, that neither of the complainants, Mary nor Thaddeus M., nor both of them jointly, had any right to dispose of the principal money or any part thereof, but that the same was a trust fund in his hands to be held during the lifetime of Mary Harris, and that the income only of such fund was payable to her, had wholly refused to pay over such sum in compliance with the appointment.</p> <p>The prayer of the bill was, that the administrator might, by a decree of the Court, be ordered to pay over such sum to the complainant, Dorothy, and that the complainants might have such other and further relief, &c.</p> <p>The heirs at law of the testatrix were also made defendants.</p> <p>Knapp filed an answer, admitting the allegations above recited.</p>

<p>to an ** indenture” between a corporation and an individual, the parties 66 set their hands,” and against each signature was a small bit of paper, attached by a wafer, without any impression on either indicative of a common seal of a corporation. It was held, that the instrument was the deed, as well of the corporation as of the individual.</p> <p>The plaintiffs were the owners of works for the manufacture of iron, which were carried on by a water power, held by them under a lease ; and the lessors were bound to keep the dams in repair. By an indenture made in April, 1833, between the plaintiffs and the defendant, the defendant covenants to manufacture for the plaintiffs ten thousand dozen of plane-irons, by the 1st of July, 1834, and to keep in order all the tools used in the business, accidental breakage of some of them excepted ; and in consideration thereof the plaintiffs covenant to furnish all the iron and steel and other materials, as soon and as often as shall be reasonably required by the defendant to enable him to carry on the manufacture to the best possible advantage, and they agree “ to give him (with the exception of the power conveyed to the boiler-house as now used) the exclusive use or an equivalent thereto, of the south water-xvheel, drums, gears, bells, &c. belonging thereto, during regular working hours, whilst he is employed in making said plane-irons, they to keep the same in good repair, and to furnisli him and to give him the control of all the tools, machinery, room and furnaces now in use or which may be added to the plane-iron establishment; and they agree to make good all breakages (except of shear knives, tongs, and other small articles) that may happen to said tools and machinery, without delay ; and to advance to the defendant such sums of money as shall enable him to settle with all such of his hands as conform to the rules of the plaintiffs, on such terms as they settle with their own hands and it is stipulated, that the defendant shall receive a certain sum for every dozen of plane-irons so manufactured by him ; and that the plaintiffs shall reserve, at all times, a drawback for such sums as they shall have advanced in paying his workmen, &c. until all such advances shall have been reimbursed. On this contract was indorsed, in July, 1833, an agreement not under seal, by which, for a certain sum, the defendant agrees to keep all the machinery and tools in good order, excepting any accident to the fly wheel of the rolling mill. On the lltli of October, 1833, a further agreement not under seal was indorsed, by which, in consideration and full satisfaction of previous breaches of the contract on the part of the plaintiffs, thny ma*e the defendant certain allowances and for his benefit extend the term of the contract four months from the 1st of July, 1834, “all other parts to remain the same.” On the 14th of October, 1833, a breach was made in one of the mill dams by a very high tide, and the power of the south water-wheel was thereby reduced from a constant power to a tide power. At that time the defendant had on hand a large quantity of the plaintiffs’ materials, in different stages of manufacture. The dam was repaired with due diligence, and the water power was restored on the 7th of March, 1834. At the time of the breach the plaintiffs had an unfinished steam-engine, which was completed and put* in operation at their works, on the 27th of December, 1833, and was equivalent in power to the south water-wheel. It was held: —</p> <p>That for a breach of the contract taking place after the modifications of the deed by the writings not under seal, assumpsit was a proper form of action : —</p> <p>That the covenant to give the defendant the use of the south water-wheel or an equivalent, was a stipulation for the use of mill power, and not a demise to the defendant : —</p> <p>That the furnishing of mill power was a condition precedent to the performance of the defendant, because without it no essential part of the work could be done •</p> <p>That the plaintiffs had the election to furnish either the south water-wheel, or an equivalent power, not only at the commencement, but afterwards during the whole period contemplated for the performance of the contract, and that they might change from one to the other, from time to time, it being done without occasioning delay or unnecessary inconvenience to the defendant : —</p> <p>That as they had such an election, so they were bound to furnish one or the other during the whole period, subject to sucli occasional and casual interruptions as must necessarily attend the use of mill power : —</p> <p>That if the breaking of the dam was not a substantial suspension and destruction, for the time being, of the water power, for manufacturing purposes, but only a temporary diminution, subjecting the defendant to some loss and inconvenience, then it was not a breach of a condition precedent which would excuse the defendant from performance, although he might have a remedy by an action for damages</p> <p>That if the waterpower was destroyed for the time being, the defendant had no right to treat it as a breach of a condition precedent and absolve himself from further performance, provided the dam could be restored, or an equivalent power be fur-" nished from a steam-engine, within a reasonable time : —</p> <p>That if the water power failed and could not be restored within a reasonable time, and an equivalent steam power could be furnished within a reasonable time and at a reasonable cost and expense, the plaintiffs were bound to furnish such steam power : —</p> <p>That in such case, if such steam power was furnished within a reasonable time, the plaintiffs complied with the condition precedent; but otherwise there was a breach of the condition : —</p> <p>That a breach of this condition precedent could only excuse the defendant from performing such part of the contract requiring the use of mill power, as remained to be performed when the breach of condition happened : —</p> <p>That a mere temporary and inconsiderable suspension of the mill power, not manifesting any deliberate purpose of the plaintiffs to withdraw or withhold the power, would not amount to the neglect or refusal to furnish power, which would constitute a breach of the condition, but to have that effect it must be such a substantial refusal or neglect as would put it out of the power of the defendant to proceed in the performance of his contract: —</p> <p>Tat if the defendant had a legal claim for damages arising fvotn the loss of power still he could r.ot excuse himself from further performance on the ground of the plaintiffs’ refusal to adjust and pay such damages : —</p> <p>That although an interruption of the mill power might be construed to he the breach of a condition precedent, which would authorize the defendant to break off from the performance of his contract, yet if he continued in the performance until the power was reestablished, this would amount to a waiver, and he would no longer be excused from further performance ; although, if lie liad suffered loss by the delay in furnishing the power, he would have a remedy by an action for damages : —-</p> <p>That the furnishing stock and materials to some extent, and even to the whole amount, if that could be reasonably required, was a condition precedent to any obligation on the defendant to perform, because he was to work on the plaintiffs’ materials : —</p> <p>But that if the plaintiffs had furnished a large quantity of materials, which the defendant had accepted and commenced working upon, he was bound to go on and finish the work on those materials ; and a subsequent neglect or refusal, after a reasonable requisition, to furnish further materials, would not excuse him from performance so far as to finish xvhat he had begun, though it would be a breach of contract for which he would have his remedy by action, and it would excuse his non-performance so far as occasioned by the want of the rest of the materials : —</p> <p>That a mere delay to furnish further materials, although it might prevent the defendant, in some particulars, from working to the best possible advantage and subject him to some slight loss, which would be a ground for recovering damages, would not be a breach of condition, unless it were continued, after a reasonable requisition, for such a length of time as to warrant the jury in inferring that it was not the intention of the plaintiffs to furnish them : — and</p> <p>That the stipulation that the plaintiffs should advance money to pay the defendant’s workmen, was not a condition precedent.</p> <p>An unliquidated claim for damages against a manufacturing corporation, is a debt, within the meaning of St. 1829, c. 53, making individual members liable for the ts debts ” of the corporation.</p> <p>In an action against a manufacturing corporation to recover a debt, it appeared that the annual notice published by the corporation next before the debt was contracted, did not certify the amount both of their debts and of their capital stock, as required by St. 1829, c. 53, but only of their debts. Held, that one who was a member of the corporation \vhen the debt was contracted, but had ceased to be such when the action was tried, was individually liable for the debt, and consequently was not a competent witness for the corporation.</p> <p>But in a cross action he would be competent, for no judgment could be recovered against the corporation except for costs, and that would be a debt contracted after he had ceased to be a member ; and his interest that the corporation should recover a judgment to be set off against a judgment in favor of the other party, is too remote and contingent.</p>

<p>Where a survey was called, in a foreign port, upon a vessel which had sustained an injury, and the surveyors recommended a sale, it was held, in an action against the insurers of the vessel, that it was not competent for the insured to prove by the testimony of one of the surveyors, the declarations and opinions of another surveyor while engaged in such survey, it appearing, that the insured had the deposition of such other surveyor in their possession ; but that, if this point were less clear, the subsequent introduction of such deposition by them was a waiver of an exception founded on the rejection of such testimony.</p> <p>In such case, on the question whether the cost of repairs would exceed half the value of the vessel, evidence tending to show, that she would have been of less value after being repaired than she was before the injury, was held to be inadmissible.</p> <p>If the injury sustained by a vessel insured is not of such a nature and extent as to warrant an abandonment, it is not such a case of necessity as will warrant a sale by the master.</p> <p>In determining whether the expenses of repairing an injury sustained by a vessel insured under a valued policy, will exceed half of her value, and thus constitute a technical total loss, the valuation of the vessel in the policy is conclusive as to her value.</p> <p>Where, in such case, the policy provided, that the insured should not have a right to abandon unless the loss exceeded half the amount insured, and the valuation included the premium, it was held, that the loss must exceed one half of the whole valuation, including the premium, to authorize an abandonment.</p> <p>If it is necessary to raise money at marine interest foi the purpose of repairing a vessel insured, the rule of deducting one third new for old, is to be applied to such interest, in determining the amount for wh'ch the insurers are Hable.</p> <p>The vessel’s proportion of items of general average is not to be added to the partial loss, in order to make up the loss of fifty per cent., which authorizes an abandonment.</p> <p>Where, in an action upon a policy of insurance, the question was, whether the loss was partial or constructively total, and the judge “ desired the jury, if they found for a total loss, to state the items of damage which, in their opinion, exceeded one half of the sum insured,” it was held, that this instruction was not erroneous ui irregular.</p> <p>Where, at ths trial of an action against an insurance company, it appeared that the sheriff, who had returned a talesman to serve on the jury, was a stockholder in such company, and this circumstance was known to the junior counsel for the plaintiff soon after the trial began, but no objection was made till after the trial had proceeded for some time, it was held that this was a waiver of any exception to the competency of such juror.</p>

<p>In order to constitute a constructive total loss of a vessel insured under a valued policy, there must be a loss exceeding half the amount of the valuation without deducting the premium.</p> <p>In making the estimate of the loss in such case, in order to determine whether it exceeds half the amount insured, items which should properly be carried to the account of general average, are not to be included.</p> <p>So, expenses incurred in order to ascertain the extent of the loss, are not to be included.</p> <p>So, the wages and provisions of the officers and crew, while the ship is undergoing repairs, are not to be included in such estimates, as part of the particular average But a reasonable allowance should be made for the custody of the vessel, if necessary, during such repairs, and for superintendence, which allowance should be charged to the account of labor ; and from this charge the deduction of one third new for old, is to be made.</p> <p>The insurers of a ship are liable for the loss of a boat from the stern davits, at sea, unless it is proved that the boat was improperly carried or slung in that situation ; it being prímá facie covered by the policy.</p>

This was assumpsit on the following post-note : “ The President, Directors and Company of the Franklin Bank promise to pay Heman Holmes, or bearer, one thousand dollars, in seven months, with interest, at the rate of four and one half per cent per annum until due, and no interest after. Boston, December 7th, 1836.” On the margin of the note were written the following words : “ Due, July 7, 1837.” The parties stated a case. The action was commenced on the 7th of July, 1837.

<p>Assumpsit on a promissory note as follows :</p> <p>“ Boston, Sept. 28, 1835. For value received I, John Thompson, as principal, and I, John French, as surety, jointly and severally promise to pay the cashier of the Commercial Bank, Boston, or his order, nine thousand dollars, on demand with interest.</p> <p>John Thompson.</p> <p>John French.”</p> <p>The note was not indorsed.</p> <p>The cause was tried before Putnam J.</p> <p>Parker H. Peirce, the president of the bank, a witness on the part of the defendant, testified that Thompson owed money to the bank at the date of the note. About that time Thompson applied to the witness for a further loan. The witness agreed to lend him $ 9000 upon his check and French’s name as collateral security. Thompson brought the note and gave his check for the amount, and took bills of the bank to the same amount. The check was presented to the teller and he paid the money for it by the direction of the witness. It was a temporary loan, and the note was not discounted, and was not passed nor entered upon the books of the bank as a note discounted. The transaction appears only in one place in the books of the bank, that is, on the discount books, and this, not at the time when the money was lent, but in March, 1836, when the note was entered with notes discounted. Thompson was often requested to pay this loan. French was never applied to, nor was any thing said to him about it, until after Thompson had failed, in October, 1836.</p> <p>Joseph Andrews, a witness on the part of the defendant, testified that he was the cashier when this note came into the bank, and ever since. Until the 14th of March, 1836, the note and Thompson’s check of the same date and amount, were both kept by the teller as cash, in his department. It was considered a temporary loan until that time. It was then considered permanent and appeared in the books as a discount. During the time that this note was at the bank, Thompson paid large sums which he owed the bank and for which the defendant was liable. No notice was given to the defendant, of the change as to this note, nor was any notice given to him upon the subject, nor 'claim made upon him, until Thompson failed.</p> <p>The defendant insisted, that the note was made payable to die cashier, and not to the bank, and not being indorsed an action upon it in the name of the bank could not be sustained ; but that if it was a note designed to be payable to the bank as payee, then the defendant had a right to expect that it would be discounted in the usual and most common mode, according to banking principles and usages ; that if the plaintiffs departed from such usages and dealt with the note not in the ordinary and usual manner, and that without the consent oí the defendant and without notice to him, then he, being a surety, was released from liability upon the note.</p> <p>The judge overruled these objections to a recovery upon the note, and a verdict was taken for the plaintiffs by consent, subject to the opinion of the whole Court.</p>

<p>This was an appeal from a judgment of the Municipal Court, rendered upon an information filed in 1837. The information set forth, that in March, 1816, the defendant was convicted of larceny and receiving stolen goods, before a county court in Vermont, and was sentenced to be confined to hard labor in the state prison of that State, for the term of two years ; that the sentence was executed upon him, and he was afterwards discharged from the prison ; that in 1818 he was convicted at Cambridge, before this Court, of three distinct larcenies, and was sentenced, as a common and notorious thief, to solitary imprisonment for fifteen days, and to confinement to hard labor afterwards, for the term of five years, in the state prison in Charlestown ; that at a subsequent day in the same term of this Court, an information was filed against him by the Attorney-General, setting forth the conviction and sentence in Vermont, and praying that the additional punishment, prescribed by the statute in such case, might be awarded against him ; that it was thereupon adjudged by this Court, that the defendant should be further punished by solitary imprisonment for seven days, and afterwards by confinement to hard labor for one year, after the expiration of the former sentence ; that afterwards, on the 8th of June, 1822, before the expiration of either of the sentences, the defendant unlawfully escaped from the prison, and was not recaptured until the 25th of October, 1834, when he was brought back thereto and confined to hard labor again in pursuance of the sentences of this Court ; and that on the 18th of April, 1837, after such sentences had been executed upon him, he was discharged.</p> <p>The information further set forth, that the defendant, after his escape from the prison and before he was brought back, at a term of the Court of Common Pleas begun and held at Springfield, in June, 1834, was convicted of two larcenies, committed on the 6th of July, 1830, and was sentenced by that court, for one offence, to solitary imprisonment for one day and confinement to hard labor in the state prison for two years, and for the other offence, to solitary imprisonment for one day and confinement to hard labor in the state prison for one year, commencing from the expiration of the previous sentence ; that the prisoner was afterwards removed to the state prison at Charlestown, and these sentences were begun to be executed upon him after the before recited sentences of this Court had been executed, to wit, on the 18th of April, 1837 ; and that the defendant was still remaining in prison in execution of the sentences of the Court of Common Pleas. Wherefore the information prayed, that the Municipal Court might award against the defendant the additional punishment, prescribed by the statute in such case made and provided.</p> <p>At the August term of the Municipal Court in 1837, the defendant was tried upon this information, and the jury returned a verdict, that the charges therein contained were true.</p> <p>The defendant moved, that the judgment might be arrested for the following reasons :</p> <p>1. That no judgment can be rendered against him as a third coiner, so called in the language of the prison, because it appears from the information and other papers in the case, that he had not, at the time of his last sentences, in the Court of Common Pleas in 1834, been twice before convicted and sentenced to the state- prison of this State or of any other of the United States, and twice discharged therefrom.</p> <p>2. That no judgment ought to be rendered against him as a second comer, because it appeared from the information, &c., that the several offences for which the defendant wás last sentenced by the Court of Common Pleas in 1834, were committed in the year 1830, and before the enactment of the St. 1832, c. 73, and St. 1833, c. 85.</p> <p>This motion was overruled by the Municipal Court, and the defendant was sentenced to an additional punishment of solitary imprisonment for one day and confinement to hard labor for seven years in the state prison. From this sentence the defendant appealed to this Court; and, upon a new trial had at the November term of this Court in 1837, the jury found the facts stated in the information to be true, with an immaterial exception, not affecting any question in the case.</p> <p>The St. 1827, c. 118, § 19, provides, that whenever a person convicted of any crime, the punishment whereof shall, by law, be confinement' to hard labor for any term of years, shall have been before sentenced to a like punishment, in this or any other of the United States, he shall be sentenced to solitary imprisonment not exceeding thirty days and to confinement to hard labor not exceeding seven years, in addition to the punishment by law prescribed for the offence for which he shall be tried; and in case he shall have been twice before convicted and sentenced in manner aforesaid, he shall be punished by confinement to hard labor for life and by solitary imprisonment as before mentioned.</p> <p>The St. 1832, c. 73, provides, that no convict shall be sentenced bv force of the provisions in St. 1827. c. 118, § 19, unless he has at two several times before been sentenced to confinement in a state prison for a period, at each time, more than one year, and been twice discharged therefrom in due course of law; and that instead of the additional punishment by confinement for life, imposed by the statute of 1827, the convict may be sentenced for life or for a period not less than seven years.</p> <p>The St. 1833, c. 85, provides, that when any person, upon conviction, shall be duly sentenced to punishment by confinement to hard labor in the state prison of this State for one year or more, and shall have been before sentenced to a like punishment by any court of this State or any other of the United States, for a period of not less than one year, and shall have been discharged from such former sentence in due course of law, he shall be sentenced to an additional punishment by solitary imprisonment not exceeding thirty days and confinement to hard labor not exceeding seven years ; and that in case such convict shall have been twice before convicted and sentenced to a state prison, in manner aforesaid, and twice discharged therefrom, he may be sentenced to confinement to hard labor for ife or for a period not less than seven years ; and that the act of 1832, c. 73, be repealed.</p>

Trespass against a deputy sheriff to recover the value of certain furniture attached by him in June, 1837, as the property of G. W. Light, in a suit of B. Bradley against Light and J. A. Stearns. On a case stated it appeared, that the furniture was the property of Light. It was claimed by the plaintiffs as assignees under an assignment, dated the 7th of April, 1837, made by Light & Stearns, for the benefit of their creditors.

<p>A named man having sexual intercourse with an unmarried «ornan, is guilty of adultery, whether viewed as an indictable offence, or.as a cause for divorce.</p> <p>In the case of an indictment, a special verdict finding the defendant guilty of the offence, but not finding him guilty in the county where it is alleged to have been committed, cannot be supported.</p> <p>Such t verdict will not operate as an acquittal, but the accused must be again put on his trial.</p>

<p>An indictment under Revised Stat. c. 126, § 32, for obtaining money by false pre tences, averring that the pretences were practised upon one person and his money obtained, with intent to defraud another, was held to be a good indictment.</p> <p>Where the indictment averred that the defendant, by false pretences, obtained 66 the proper money of P, due, owing and payable to W and S, with intent to defraud them of the same,” it was held, that the word them must be referred to that antecedent (namely, W and S, and not P, W and S,) to which the tenor of the indictment and the principles of law required that it should relate, whether exactly according to the rules of syntax or not.</p> <p>Upon the trial of an indictment, alleging that the defendant obtained money from P by false pretences, with intent to defraud W and S, and that the money was the property of P, the proof was, that the defendant, who had once been authorized by W and S to collect bills for them, but whose authority had been revoked, presented a bill to P, and received payment, and receipted the bill in the name of W and S, whereby P was discharged, no notice having been given of the revocation of the defendant’s authority, and appropriated the money to his own use. It was held, that the allegations were sustained by the proof.</p> <p>It was held also, that if the defendant as a sub-agent, collected the money due from P to W and S under a fraudulent agreement with the agent to divide the money, or with the knowledge and belief that it was the intention of the agent to squander the money and not account for it and pay it over to his employers, this was evidence of an intent on the part of the defendant to defraud W and S.</p> <p>Confessions of an accomplice, made in the presence of the defendant and assented to by him, are admissible in evidence against him.</p> <p>Although evidence of one offence is not admissible for the purpose of proving the charge of another, yet it may be so connected with the proof of a relevant and material fact, that its introduction cannot be avoided.</p> <p>Upon an indictment for obtaining money of P by false pretences, the proof was that the false representation was made to P’s agent, who communicated it to P, and thereupon, by P’s direction, paid the money to the defendant out of P’s funds. It was held that this was not a variance.</p>

<p>The defendant was indicted for having “ in his possession, at the same time, more than ten pieces of false money and coin, counterfeited &c., to wit, one hundred pieces of such false coin, knowing the same to be false and counterfeit, and with intent to utter and pass the same as true, &c. contrary to the form, force and effect of the statute in such case made and provided.”</p> <p>At the trial, before Putnam J., a verdict was returned by consent, finding the defendant “ guilty of having in his possession four counterfeit pieces of coin, called half dollars, or sometimes called fifty cent pieces, knowing the same to he counterfeit, with intent to utter and pass the same as true, and not guilty of the residue.”</p> <p>The defendant moved that he might be discharged, because the verdict was in effect and law a verdict of not guilty ; he also moved that the clerk, for the same reason, be ordered to re cord the verdict as a verdict of not guilty ; and he further moved for a new trial, because the jury were not authorized to find a verdict of guilty for having less than ten pieces of false money</p> <p>The Revised Statutes provide, in c. 127, § 15, that every person who shall have in his possession, at the same time, ten or more pieces of false money, or coin counterfeited in the similitude of any gold or silver coin, current by law or usage, within this State, knowing the same to be false and counterfeit, and with intent to utter or pass the same as true, shall be pun ■ ished by imprisonment in the state prison for life, or for any term of years ; and in § 16, that every person, who shall have in his possession any number of pieces less than ten, shall bes punished by imprisonment in the state prison not more than ten years, or by fine and imprisonment in the county jail.</p>

This was a bill in equity, setting forth, that in 1829, T. H. C arter applied to the defendant to aid him in procuring money to carry on his business, and that it was agreed between the defendant and Carter, that the defendant should indorse Carter’s paper, and that he should be secured against any loss in consequence thereof, and should receive at the rate of one quarter of one per cent a month on the paper so indorsed by him ; that the defendant did, accordingly, from time…

Trespass. The defendant was described in the writ as formerly a deputy of the sheriff of the county of Suffolk. The writ was served by a coroner. At the return term the defendant entered his appearance generally, and subsequently put in a plea of not guilty, and joined in a demurrer, (with a reservation of liberty to waive his plea,) by which the action was brought up from the Common Pleas to this court.

<p>Where in an action of debt for rent, the declaration consisted of a single count setting forth a special contract, not in writing, whereby the plaintiff leased to the defendant a tenement, for one month, at a specified rent, but the evidence was merely that the defendant, with the permission of the plaintiff, occupied a part only of such tenement, it was held, that, as there was no general count this was a fatal variance.</p>

<p>The St. 1838, c. 14, provides that bank commissioners shall be appointed by the governor, that they shall visit the banks and shall have free access to their vaults, books and papers, and shall make all such inquiries as may be necessary to ascertain the condition of the banks and their ability to fulfil their engagements, and whether they have complied with the provisions of law, and may summon and examine, under oath, the officers and agents of die banks, in relation to the transactions and condition of the banks, and that an officer or agent who shall refuse, te without justifiable cause,” to appear and testify when thereto required, shall be subject to fine or imprisonment ; and if upon examination of any bank they shall be of opinion that it is insolvent, or that its condition is such as to render its further progress hazardous to the public, and that it has exceeded its powers or has failed to comply with all of the rules, restrictions and conditions provided by law, they may apply to a justice of the Supreme Judicial Court, to issue an injunction to restrain such corporation, in whole or in part, from further proceeding with its business, until a hearing of the corporation can be had, and the justice shall forthwith issue such process, and after a full hearing of the corporation upon the matters aforesaid, may dissolve or modify the injunction or make it perpetual, and, at his discretion, appoint a receiver. It was held, that the statute is not unconsti tutional on the ground of being an assumption by the legislature of judicial power in making it the duty of the judge, in a particular case, to perform a judicial act; for, on the contrary, it is a general law, in regard to all banks, that in a given state of facts an injunction shall issue.</p> <p>Neither is it unconstitutional on the ground of being a usurpation of judicial power, in requiring the justice, in the first instance, on the complaint of the bank commissioners, without a hearing of evidence to satisfy his own mind, to issue an injunction ; the effect of it is, to declare that the representation made by the commissioners, upon such examination, of such facts, shall be primé facie evidence that the bank is acting unlawfully and that its further operation will be hazardous to the community.</p> <p>Neither is it unconstitutional on the ground of its compelling the officers and agents of a bank to furnish evidence to criminate themselves ; for (among other reasons) it imposes a penalty only upon those who 6< without justifiable cause ” refuse to testify.</p> <p>Nor is it unconstitutional on the ground that a suspension of the proceedings of a bank by the injunction, diminishes the period for which the'bank is by its charter . empowered to act as a corporation ; for as the bank may violate its charter or the law, there must be some mode prescribed for a judicial inquiry into the fact and for giving redress to parties who may have suffered, and the injunction is not an arbitrary suspension of the corporate powers of the bank, but a species of compulsory process entirely consonant to the course of the administration of justice in like cases.</p>

<p>If personal property held in common, be sold by one of the tenants, as exclusively his own, such sale is a conversion, and the co-tenant may maintain trover therefor, against him ; or he may, in case the purchaser shall also sell and deliver the property as his own, maintain trover against such purchaser for the subsequent conversion. If, in such case, the action is brought against the original purchaser, the measure of damages will be the value of the property at the time of the sale made by him.</p> <p>Where a tenant in common with the plaintiff, of merchandise, sold the same to the defendant, who sold it again, and the plaintiff made out a bill of his proportion of the price, against the defendant, and called on him, as he had taken the property after he had been informed it belonged to the plaintiff, to pay for the same and save himself further trouble and expense, it was held that the plaintiff did not thereby ratify the sale and waive his right to an action of trover against the defendant.</p>