Volume 39 — Massachusetts Reports

<p>A count in an indictment charging the breaking and entering a dwellinghousa with intent to steal, and actually stealing therefrom, is.not bad for duplicity.</p> <p>XTpon a general verdict of guilty, on an indictment charging the breaking and entering a dwellinghouse in the daytime, with intent to steal, and actually stealing therefrom, the convict is to be sentenced as for housebreaking, and is not liable to a distinct sentence for larceny.</p> <p>The larceny included in the general conviction of such combined offence, is in no case to be considered as one of(e three distinct larcenies,” rendering a party liable to be adjudged a common and notorious thief, under RevisedvStat. c, 126, § 19 ; consequently where a prisoner was convicted at the same term of the Municipal Court of three such combined offences, from no one of which convictions taken by itself could he by law appeal, and he was erroneously sentenced on the three together to imprisonment for more than five years, as a common and notorious thief, it was held that an appeal from such sentence could not be sustained.</p> <p>This provision, under which a party may be adjudged a common and notorious thief, applies as well to aggravated as to simple larcenies.</p>

<p>At the March term 1838, of the Municipal Court for the city of Boston, Josiah Dunham, junior, was arraigned on an indictment for perjury. He moved for further time to answer, and the indictment was continued, upon his entering into a recognizance, in the sum of $ 3000, with sureties, conditioned that he should personally appear before the same Court at the April term, to answer to the indictment, and should do and receive that which by the Court should be enjoined on him, and not depart without license. He appeared accordingly and was tried and convicted ; and thereupon he claimed an appeal to this Court.</p> <p>On the first day of the November term 1838 of this Court, the Clerk entered the appeal, and on the same day the attorney of the Commonwealth for the county of Suffolk, filed a motion, praying the Court to order the entry to be erased or discharged, and to take no further cognizance of the claim of appeal, on the ground that the defendant was not entitled by law to an appeal, 1. Because he never recognized to prosecute an appeal; 2. Because no appeal has been allowed by the Municipal Court; 3. Because no order was passed by that court concerning an appeal; 4. Because the defendant, immediately after the rendition of the verdict, left the Municipal Court and never returned to receive and comply with any order of that court in relation to his claim of an appeal; 5. Because immediately after the rendition of the verdict, the defendant absconded from that court and from the Commonwealth, and forfeited the penalty of the recognizance under which he stood, to abide the order of the court and not depart without license, and he was called on the recognizance to receive the order of the court concerning the appeal and his sureties were called on to produce him, and he and they made default, and judgment has been rendered in favor of the Commonwealth, in an action on the recognizance, for the penalty thereof, from which judgment the defendant and his sureties have appealed to this Court; 6. Because this Court have no lawful jurisdiction in the premises and ought not to take cognizance of any such pretended appeal.</p>

<p>Trover, to recover the value of certain goods alleged to have been obtained by the defendant, from the plaintiffs, by means of false and fraudulent pretences.</p> <p>The trial was before Putnam J. It appeared, that the goods were purchased of the plaintiffs by the defendant, by means of false representations, on or about the 22d day of March, 1837, for the sum of $ 677-77 ; that the defendant gave his negotiable promissory note for the amount, payable in six months ; that such note had been in the possession of the plaintiffs ever since it was given ; that they had never offered to give it up to the defendant; and that they had not made a demand upon him, for the goods, before commencing this suit. The plaintiffs however produced the note in court, at the trial, and there offered to give it up, or to put it on the files of the court; but the defendant declined taking it, and it was placed on the files.</p> <p>The defendant offered no evidence in his defence, but relied upon the facts, that the note had not been given up or tendered to him by the plaintiffs, and that no demand had been made upon him for a return of the goods.</p> <p>A verdict was taken for the plaintiffs, by consent.</p> <p>If the Court should be of opinion, that the action could be maintained, judgment was to be rendered on the verdict ; otherwise, the plaintiffs were to be nonsuited.</p>

<p>Water power, for mill purposes, not used, being merely a capacity of land for a ce» tain mode of improvement, cannot be taxed independently of the land.</p> <p>Where a dam extended across a river, the thread of which was the dividing line between two towns, but the water power created thereby, was applied exclusively to drive mills situated in one of the towns, it was held, that the water power was no subject to taxation in the other town.</p>

<p>Where one of the directors of a bank who were authorized, when money was abundant, to solicit and procure notes for discount, obtained possession of a note under the pretence of getting it discounted for the maker, at a time when money was scarce, and pledged it to the bank for a loan made to himself, and the maker knew that such director was authorized by the bank to procure notes for discount only when money was abundant, it was held, that the director had exceeded his authority in such transaction, and the bank was not bound by his fraudulent conduct; and that as he did not act in his capacity of director in procuring the discount, the bank was not affected by his knowledge of the circumstances under which he received the note, and might recover against the maker.</p> <p>Ip the same case, it appeared, that the note was pledged not only as security for the money advanced, but also for a prior existing debt due from such director, and that the money was advanced partly for the purpose of securing the prior debt. It was held, that the bank might recover of the maker the whole amount of the note, provided it did not exceed the amount of the money advanced and the prior debt.</p>

<p>In March, 1833, a memorial was presented to the mayor and aldermen of Boston by several proprietors of lands, including the complainants, representing that the public convenience required that a street should be laid out over their lands, and that to promote this improvement they would for themselves individually relinquish their interest in the land for the street, provided the street should be opened during the year 1833, agreeably to a particular plan. In April, the mayor and aldermen passed a vote, that a certain sum of money be appropriated to defray the expenses of laying out a street according to the plan, to be paid when the street should be made and fitted for paving, to such person or persons as the memorialists should designate, and to be in full for all the expenses, as well as for all damages, to be incurred on the part of the city in laying out and making the street. In June the complainants addressed a letter to the other memorialists and sent a copy to the mayor, explaining their proposition to be, an offer to relinquish all claim of damages for their land, but not their claim of incidental damages for removing and repairing their buildings. In October, the mayor and aldermen passed an order laying out the street according to the plan, and the street was finished during the year. Soon after the passing of this order the complainants protested against the street being made without a previous agreement in relation to an indemnity, and gave notice that they would hold the city responsible for all damages. It was held9 that the proposition of the memorialists was a continuing offer during the year, if not revoked or rejected ; that the vote of April was not a rejection, but a distinct proposition on the part of the city; that the offer of the memorialists was several in its nature, and until accepted or rejected by the city, each proprietor of land had a right to revoke or modify his offer, independently of the others; and that by laying out the street, the city, in legal effect, accepted the complainants’ offer aa modified by their letter of explanation, and it then became a contract, binding upon both parties; and thereby the city became entitled to the land, and the complainants became entitled to incidental damages for removing and repairing their buildings.</p>

<p>In July, 1832, Parker, the plaintiff, consigned to Brancker, Delius & Co,, the defendants, commission merchants in Hamburg, 1640 bags of coffee, on which, according to a previous agreement, Brancker, Delius St Co. made large advances Parker sent a letter of instructions limiting the sale at a cei tain price. Brancker, Delius & Co. afterwards brought a suit against Parker, to recover the amount of their advances. The coffee had not then been sold, but having been sold pending the suit for a sum less than the advances, expenses and interest, credit was given in the suit, for the net proceeds. In that suit, Parker offered evidence tending to show that Brancker, Delius & Co. could and ought to have sold the coffee at the limit, in September, 1833, before the commencement of that suit. To the admission of this evidence the counsel of Brancker, Delius & Co. objected, but it was admitted. The jury found a verdict in favor of Brancker, Delius & Co. for the amount of the advances, expenses and interest, deducting the net proceeds of the coffee. Upon this verdict judgment was rendered. Pending that suit, the coffee having been sold by Brancker, Delius & Co. at a price much below the limit, Parker brought the present action, in which he claimed damages of them, 1. for not selling the coffee at the limit, in September, 1833 ; and 2. for afterwards selling it below the limit, after having commenced their action to recov er back their advances.</p> <p>In answer to the claim for not selling at the limit, the defendants offered, with other evidence, the judgment in the former suit, and proof that the same matter had been submitted to the jury in the defence of that suit; to the admission of which the plaintiff objected, on the ground that the former suit being for money had and received, evidence of a breach of orders in not selling at the limit was inadmissible, and therefore that proof that it was submitted to the former jury was inadmissible in the present case. But the Chief Justice, before whom the action was tried, admitted the evidence, reserving the question for the whole Court.</p> <p>In support of the second claim, for selling the coffee below the limit, the plaintiff introduced the letter of instructions sent with the consignment, dated the 7th of July, 1832, fixing the limit at sixty shillings the hundred weight, and the answer of the defendants, dated the 21st of August, 1832, acknowledging the receipt of the orders and accepting the consignment. Also a letter from the plaintiff to the defendants, dated in February, 1833, reducing the limit to fifty-eight shillings. Also the writ in the former suit, by which it appeared, that ou the 14th of June, 1834, the defendants commenced that suit and directed the sheriff to attach property to the amount of $3500, which was done. The plaintiff also proved, that on the 21st of October, 1834, and pending the former suit, the defendants sold the coffee at a price very much below the limit, and that in the following spring coffee rose to a considerably higher price than that at which the plaintiff’s coffee had been sold ; and the plaintiff claimed the difference between the actual sales and the price which the article would have brought in the following spring.</p> <p>The defendants contended, 1. that they had exercised due care and diligence in the sale of the plaintiff’s coffee ; that there was no period when they could have realized the price limited by the plaintiff, and especially they could not do so in September, 1833.—2. That the question of due diligence and ability to realize the plaintiff’s limit in September, 1833, had been submitted by the present plaintiff to the jury in the former suit; and had been found against him. 3. That at divers times, and especially in June, 1834, the defendant’s agent demanded payment of the plaintiff for a portion of the sum advanced, which was not complied with. 4. That the plaintiff, in June, 1834, fixed on the autumn of that year as the period when he wished the sale of his coffee to be made, and it was actually kept till that time by the defendants and then sold to the best advantage at the then market prices.</p> <p>In support of these allegations the defendants read certain depositions and letters ; also a report of the former suit, and the bill of particulars, verdict, judgment and execution therein.</p> <p>Upon the evidence in the case the Chief Justice instructed the jury, that a commission merchant, having received goods to sell at a certain limited price, and made advances upon such goods, had a right to reimburse himself by selling such goods at the fair market price, though below the limit, if the consignor refused, upon application and after a reasonable time, to repay the advances. To this instruction the plaintiff excepted, and the question was reserved.</p>

<p>This was an action on the case, in which the plaintiff alleged, that in December, 1836, he was the owner of one quarter part of the brig Criterion then lying in the harbour of Boston ; that he had given to one Chapin, a power in writing, authorizing him to sell such share of the vessel for a fair price ; that Bliss and Shelton, two of the defendants, each being the owner of one eighth part of the vessel, and Lucas, the other defendant, who was master of her, fraudulently conspired to obtain from the plaintiff his share of the vessel, for a sum less than its true value ; that having first agreed with John N. Far-well and George Hancock, to sell them the whole of the ves eel for the sum of $ 7250, they persuaded and induced Chapin to convey the plaintiff’s share to Bliss for the sum of $ 1300, a sum much less than the true value' thereof, and much less than a quarter of the price for which the whole vessel had been sold to Farwell and Hancock, by falsely and fraudulently representing to Chapin, that the interest of the plaintiff would be attached by his creditors ; and that the defendants fraudulently concealed from the plaintiff and from Chapin the previous agreement with Farwell' and Hancock.</p> <p>At the trial, before Dewey J., the plaintiff introduced testimony tending to show, that the defendants had made the fraudulent representations set forth in the declaration, and that in consequence thereof Chapin had conveyed the plaintiff’s share of the brig to Bliss for less than its real value, the plaintiff being, during the negotiation, at his place of residence in Maine ; and that the defendants concealed the previous agreement made with Farwell and Hancock.</p> <p>The defendants offered evidence tending to prove, that the sum of $ 1300, which was paid to the plaintiff, was the true and full value of the plaintiff’s quarter part, for the purpose of disproving the fraud charged upon them, and also as being evidence proper for the consideration of the jury on the question of damages. The plaintiff objected to the admission of this evidence, and contended, that if the defendants had by fraud deprived him of his share of the vessel, they were bound to pay him at the rate at which they had sold the whole vessel. But the evidence was admitted.</p> <p>The judge instructed the jury, that in order to maintain this action, they must be satisfied, that the detendants had made the false representation set forth in the declaration, and that the sale was effected by means of such representation ; that it was not necessary that it should be the sole and only motive inducing the sale, but it must have been a predominant one ; that if the jury should be of opinion, that the plaintiff had failed to substantiate his allegations of false representations and pretences, then the mere non-disclósure by the defendants, of the bargain made by them with Farwell and Hancock, to the agent of the plaintiff, when negotiating for the purchase of the plaintiff’s share, did not, of itself, furnish a substantive cause of action, the defendants being under no legal obligation to communicate those facts ; that the withholding the knowledge of them from the plaintiff and his agent, was not such a fraudulent concealment of the truth as would, of itself, entitle the plaintiff to maintain this action ; that the plaintiff, in order tó maintain hi? action, must show, that he had been induced to part with his share of the brig at a price less than its real value, by means of such false representations ; that in estimating the real value of the plaintiff’s share in the brig, the price at which she "was sold to Farwell and Hancock was strong evidence to be considered by the jury, but was not conclusive evidence ; and that the jury would consider this, with all the other evidence, in the case, as to the value of the brig, in forming an opinion on that point.</p> <p>The jury returned a verdict for the defendants.</p> <p>If the Court should be of opinion, that the ruling of the judge, or his instructions to the jury, were wrong, then the verdict was to be set aside and a new trial granted ; otherwise judgment was to be rendered on the verdict.</p>

<p>Bill in equity. The bill set forth, that the plaintiff was originally the owner of certain land in Boston ; that on May 19, 1827, he conveyed the apparent title to one undivided half thereof to the defendant, Dame ; that on September 29, 1829, the plaintiff, by his deed to Dame, and an indenture of the same date executed by both, conveyed all his interest in the land to Dame on the express trust that he should not sell any part thereof without the consent of the plaintiff in writing, until after May 1, 1832, and that then so much of the land as should be necessary to pay all debts due from the plaintiff to Dame, &c. and the taxes and expenses on the land, with interest, should be sold by auction, and the proceeds of the sale applied to the payment of such debts, &c. and that the residue, if any, should be reconveyed to Wright, on demand, after such payments ; that on July 7, 1835, the plaintiff, by an indenture, executed by him and Dame, authorized Dame to sell all of the land at private sale for the most that could be obtained over the sum of $ 170,000 ; thát such authority was given upon the express condition and trust, that Dame should appropriate the proceeds of the sale in the manner prescribed in the deed and indenture executed on September 29, 1829, so far as respected the debts, &c. therein mentioned, and should pay the resi due of the plaintiff’s interest to him in money or satisfactory securities, on demand, instead of the reconveyance first intended.</p> <p>The bill further stated, that Dame, on or about July 8, 1835, in execution of such trust, contracted with H. S. Kendall, another of the defendants, to sell to him the lands for the sum of $ 170,005, one half to be paid on delivery of the deed, in cash or security satisfactory to the plaintiff, and the residue, at such times as should be agreed upon by Dame and Kendall ; and that it was stipulated in such agreement, that this portion of the proceeds should be applied to the payment and extinguishment of the debts, &c. before mentioned ; that Kendall well knew the trusts and the contents of such indentures ; that at the request of Dame and Kendall, the plaintiff and his wife united with Dame in the execution of the deed, upon the express agreement, that it should not affect such trusts or the rights of the plaintiff, or the duties or liabilities of Dame or Kendall, and placed it in Dame’s hands, upon the express trust, that it should not be delivered to Kendall, unless he should pay to Dame one half of the purchase money, in cash or security satisfactory to the plaintiff; that Kendall well knew, that such deed was placed in Dame’s hands on such express trust ; and that on August 8, 1835, Dame delivered the deed to Kendall, who caused it to be recorded in the registry of deeds.</p> <p>The bill further set forth, that by virtue of the premises, Dame held the contract with Kendall, in trust to enforce the terms of it for the benefit of the plaintiff; that Kendall took the land charged with the trust that he should perform the contract with Dame and that Dame should perform his trust for the plaintiff, and charged also wxth all the other trusts ; that Kendall, on or about July 25,1836, by a deed dated February 15, 1836, but not recorded till the 25th of July, after the pendency of the bill, and after the same was known to Kendall and to the South Wharf Corporation, which was also a defendant in this suit, and after the service of the subpoena on Kendall, undertook to convey the land to that corporation, the plaintiff having no knowledge of the deed until long after the 25th of July ; and that, at the date of the deed, the corporation and every member thereof well knew, or had reasonable ground to know, of the various trusts upon which the land was held by Dame and Kendall, respectively.</p> <p>The bill then alleged, that the South Wharf Corporation paid no consideration for the lands, and that, by reason of the premises, they passed into its hands subject to such trusts; that the plaintiff had hoped that the defendants would have performed the trusts ; and that the plaintiff had demanded of Dame the delivery of the money or security, &c. ; but that the defendants combining, &c. had refused to perform the trusts, and pretended, that after the deed was so placed with Dame, he and Kendall rescinded the contract between them, and entered into a new one, whereby Kendall was not to pay Dame any money, &c., but to deliver and sell to him certain shares in the stock of the South Wharf Corporation.</p> <p>The bill thereupon charges, that it was not competent to Dame and Kendall to cancel such first contract; that it was trust property of the plaintiff, and was held by Dame to enforce it and pay over the fruits to the plaintiff; that Kendall knew these facts when he received the deed, and took the estate upon the trust, that he should pay to Dame one half of the sum of $ 170,005, in cash, &c., and that the same should be paid over to the plaintiff on demand ; that the debts, &c., amount to the sum of $50,000 or thereabouts ; and that the shares in the stock of the South Wharf Corporation were not satisfactory to the plaintiff; that Dame had no authority to release Kendall from the performance of the contract, and the plaintiff has a right to compel performance of it, and has demanded it of Kendall, who has refused ; that the South Wharf Corporation bought with full knowledge of the trusts and took the estate and held it subject to and charged with the trusts and are bound to execute the agreement first made between Dame and Kendall and to pay the plaintiff one half of $ 170,005 in money, &c.</p> <p>The bill, thereupon, prayed, that the defendants might be-restrained from alienating the land until the trusts should be executed, and that they should be charged as trustees to execute the same.</p> <p>The South Wharf Corporation demurred to the bill, on the ground, that the plaintiff had not thereby made a case which entitled him to relief against that corporation.</p>

<p>Bill in equity against John Smith junior, John Smith senior, Henry Wainwright and Martha Ann Babcock. The plaintiff alleges, that valuable real and personal estate descended to her from her father, Abraham Babcock ; that on the 24th of October, 1830, while a minor under guardianship, she intermarried with the defendant, Smith junior ; that upon the treaty for the marriage it was expressly agreed between Smith junior and the plaintiff and her guardian, that all her property, real and personal, should be conveyed and secured to her sole and separate use, and this agreement was expressed in a letter written by Smith junior "to the guardian ; that no conveyance and settlement of the property were made at the time of the marriage, by reason of the plaintiff’s minority, but it was agreed that such conveyance and settlement should be made as soon as the plaintiff should become of age ; that before the conveyance was made the guardian died and the letter cannot be found ; that on the 23d of February, 1833, shortly before which time the plaintiff came of age, Smith junior procured an indenture to be drawn, between himself and the plaintiff of the first part, Wain wright of the second part, and Smith senior of the third part, in which it is recited, that before the marriage was solemnized it was agreed that all such real estate as the plaintiff then was or thereafterwards should be entitled to as heir of her father, “ should be satisfactorily secured to the sole and separate use of said Nancy, notwithstanding the said contemplated coverture,” and for the purpose of carrying the agreement into effect; Smith junior and the plaintiff convey the real estate, and certain furniture purchased with the plaintiff’s funds, to Wain wright, his heirs and assigns, in trust; 1. to permit the plaintiff to receive the income of the real estate to her separate use during the life of her husband ; 2. if the plaintiff should survive her husband, to reconvey to the plaintiff absolutely ; 3. if she should not survive her husband, to pay the income to him during his life ; and 4. at his decease, to convey the property to such of the plaintiff’s children as should be then living and the legal representatives of such as should have deceased ; and Smith junior covenants, that he will, at the request of Wain wright or of Smith senior, execute such further instruments as shall be necessary to carry into effect the trusts and purposes declared in the indenture ; that Smith junior procured the plaintiff to join with him in the execution of the indenture ; that she was unacquainted with business of that kind, that no counsel or other person was employed to guard her interests, that the instrument was read to her but once, and then hastily and without explanation, just before executing it, and that she did not understand the purport and meaning, nor the effect of it, but signed it, relying entirely on the good faith and proper care of her husband, and on his promises, to have the conveyance and settlement prepared and made in conformity to the previous agreement; that the instrument executed is not in conformity to that agreement, and her property is not thereby settled and conveyed to her own sole and separate use, but an .nterest in the property is vested in Smith junior in the event of his surviving the plaintiff, and an interest is likewise given to her issue who shall be living at his decease, in case he survives the plaintiff; and no disposing power, by an instrument in the nature of a last will or other instrument, is secured to her ; that at the November term 1836, of this Court, the bonds of matrimony between her and Smith junior were dissolved for the cause of adultery on his part, whereby she became entitled by law to the immediate possession of all her real estate in like manner as if her husband were dead, and to such part of her personal estate which came to her husband by her marriage, as the Court should order ; that by an act of the legislature her name was changed from Nancy Smith to Nancy Babcock; and that the only issue of the marriage is a daughter, named Martha Ann Babcock. The bill prays, that the settlement may be cancelled and a reconveyance of the property de creed, by reason that the plaintiff’s signature was obtained by imposition and mistake ; and that a reconveyance may be decreed by reason of the divorce ; and if the same cannot be done, that the instrument may be rectified, and the uses and trusts therein declared so far altered, as to carry into complete effect the antenuptial agreement. And the plaintiff waives the necessity of the defendant’s answers being made under oath.</p> <p>John Smith junior, in his answer, denies that any antenuptial agreement existed relative to securing the plaintiff’s property, other than what was carried into effect by the indenture ; and if any such different agreement before the execution of the indenture could be proved, he submits that it could not avail any thing against the express terms of the indenture ; he denies that the plaintiff was ignorant of the purport or meaning of the indenture ; he denies that she had no counsel or other persons to guard her rights ; and asserts that it was at the urgent and repeated requests of persons acting in her behalf that the indenture was drawn up and executed ; he alleges that one of the leading objects of making the indenture, was the supposed exposure of the property to the claims of his creditors ; be alleges that the plaintiff bad issue by the respondent, a daughter, who at the time of the making of the indenture was and still is living, in whose favor a trust is created by the indenture and that the respondent has an interest secured by the indenture, upon the contingency of his surviving the plaintiff, he admits that the decree of divorce has been had, but he denies that it affects any other of his rights than those acquired by virtue of the marriage, and he submits that it has not in law or equity, the additional effect of divesting his title and that of his daughter, acquired under the indenture.</p> <p>Answers were put in by the other defendants.</p> <p>The plaintiff filed general replications.</p> <p>And now, at the hearing, the plaintiff introduced evidence in support of the bill. Smith junior offered in evidence the deposition, of Smith senior, a co-defendant.</p>

<p>This was a bill in equity, brought by the plaintiffs as heirs at law of Richard Shelton, to redeem certain real estate in Boston. For the purpose of the hearing, it was conceded that the plaintiffs were the proper parties to bring the suit. The bill was filed in 1837.</p> <p>It was agreed, that on the 1st of June, 1822, Mrs. Susannah Daker, being seised in fee, conveyed the estate to George Sullivan, by deed of mortgage, conditioned for the payment of $ 1503'73, in eighteen months, with interest semiannually; and that on the 2d of July, 1822, Sullivan assigned the mortgage to Mrs. Hannah Proctor.</p> <p>On the 16th of November, 1822, Mrs. Daker died. No administrator was appointed on her estate.</p> <p>One Albertson testified, that he hired the house of Mrs. Daker and paid her the rent until her death, and that he continued there a few months after her decease and paid the rent to Sullivan ; that he never knew of any formal taking possession of the premises by Sullivan ; that he was confident he had nothing to do with Sullivan until after December, 1822 ; and that when the witness left the house George Low took possession.</p> <p>William Minot stated, that about the 28th of August, 1826, he received of Mrs. Proctor the bond and mortgage, to be collected ; that soon after, he learned of Sullivan that he was in the reception of the rents and profits, and by his consent ne called on Low, the tenant, and required him to pay the rents tv him (Minot) which he did, and he (Minot) collected the rents, made repairs and paid the taxes on the estate and insurance, from October, 1826, to the latter part of 1832, when Mrs. Proctor died.</p> <p>Afterwards, on the 10th of January, 1833, the defendant, as administrator of the estate of Mrs. Proctor, having the bond and mortgage, required Low, who was then in possession of the premises, to pay him rent, but Low declined to do so or to consider the defendant the owner or entitled to the rents, until judgment should be obtained, and therefore the defendant brought an action of ejectment against Low, on the mortgage, but made no service on any other person, and prosecuted the suit to judgment ; and the sum of $ 2103T0 was ordered to be paid in sixty days, by consent of parties, before habere facias should issue ; and in default of payment the defendant to this bill entered into possession of the premises on the 20th of June, 1833, and continued such possession, by receiving the rents and profits accruing therefrom, to the present time; The defendant was desirous of making sufficient service of his writ, but on inquiry he found that no administration had been granted on the estate of Mrs. Daker, and he had no knowledge of any person claiming to be her heir at law.</p>

<p>This was a petition to the Court of Common Pleas for a jury to estimate the damage for 1846 feet of land taken by the mayor and aldermen of the city of Boston for a street, called Broad street. An issue was joined, and upon the trial before the jury, Ward C. J. presiding, it was admitted that the city had taken 1472 feet of the petitioners’ land, but it was denied that the remaining 374 feet had been taken from them, because it was alleged that the city had a right of way over this part before and at the time of taking it for Broad street.</p> <p>The petitioners produced a record of the town of Boston, by which it appeared, that on the 31st of October, 1683, the selectmen staked out a “highway” (Sea street) “for the town’s use, on the easterly side of the proprietors’ land &c. which way is in breadth from the proprietors’ land fifty foot towards the seashore. The flats and land between the said highway into the sea, is granted to the proprietors of the land which are abutters on the said way, in equal proportion to their several fronts on said way, always provided the said proprietors and abutters maintain in good repair the said way at their proper cost and charge.”</p> <p>Also a record of a vote of the town, in 1736, accepting the report of the selectmen, “ that the ancient highway, which was to be maintained in good repair, of fifty foot in breadth, be now reduced to the breadth of thirty-five foot, which we apprehend will well accommodate the inhabitants and sufficiently answer all the ends of a street, and therefore that the said street be fixed and established by the town to be thirty-five foot in breadth, and that the same be maintained and kept in good repair, open, free and unincumbered, at the proper cost and charge of the proprietors and abutters on said street, for the use of the town of Boston forever.”</p> <p>The easterly side of Sea street, as reduced to thirty-five feet in breadth, and the southwesterly side of Summer street, intersect each other at an acute angle, and the land in question is a triangular piece between those lines at the point of intersection. It is ten feet wide on Summer street, and runs to a point on Sea street, and is included in the fifteen feet cut off from Sea street in 1736.</p> <p>Nearly a century ago the former owners of the petitioners’ land set. their buildings back ten feet from the intersection of the two streets, thus leaving the triangular parcel open to the public use.</p> <p>The petitioners contended that the reduction of Sea street from fifty to thirty-five feet, was such an alteration of the street as operated a discontinuance of it over the fifteen feet, and that the parcel in question could not be reestablished as a way unless laid out anew, agreeably to the statute, and therefore the land belonged to the petitioners, who were abutters upon both sides of the way.</p> <p>The respondents, on the contrary, contended that under the votes of the town the petitioners were only entitled to the flats below the original fifty feet street, and that upon the reduction of the width the portion thus discontinued reverted to me town..</p> <p>The petitioners requested the judge to instruct the jury, in matter of law, as above contended by them, and likewise that a town way could not be acquired by dedication, or established in any other manner than by laying it out for that purpose, by virtue of the statute.</p> <p>But the judge instructed the jury, that a way might be ac quired by dedication or user, and that twenty years’ use of the land as a way, would raise a presumption that it had been dedcated by the owner to the public, for a way, and that forty years’ use of the land as a way, would give the public a right of way over it as effectually as if laid out for a way agreeably to the statute.</p> <p>To this instruction the petitioners filed exceptions.</p> <p>The case was argued in writing.</p>

<p>If a party, in preparing for the trial of an action, fails to make an inquiry so obviously proper and necessary as what evidence will be requisite to make out his case, his omission to produce such evidence will not be a good ground for a review or new trial.</p> <p>Thus, where the defendant supposed that the question whether he was liable to the plaintiff at all, would first be tried and settled by the jury, and neglected to pro duce evidence as to the amount of damages, thinking that if the verdict should be found against him, the damages would be the subject of an after inquiry, his petition for a review was dissallowed.</p>

<p>One summoned under the trustee process, made answer, that certain negotiable notes had been left with him by the defendant for collection, and that he had given an accountable receipt promising to account for the proceeds to the defendant or bear* er 5 that a part of the notes had been collected and was in the hands of the respondent at the time of the service of the writ; and that he had been called upon to pay the whole of the proceeds to one R, who produced the receipt, claiming to be the bearer. It was held, that the receipt was not a negotiable security, because not a promise to pay a sum certain ; and as it did not appear that it had been duly assigned before the service of the trustee process, the respondent was charged as trustee.</p>

<p>This was a writ of entry, wherein was demanded a parcel of flats, below Sea street and south of Summer street, 'in Boston. The demandants counted on the seisin of their father, Lawson Valentine. The cause was tried upon the general issue, before Wilde J.</p> <p>The demandants claimed the demanded premises as appurtenant to an ancient wharf, formerly called Price’s and more recently Valentine’s wharf.</p> <p>To show their title to the demanded premises, the demand-ants produced a deed executed by George Sullivan as attorney of Andrew Price, a clergyman in England, to Lawson Valentine, and a power of attorney to Sullivan, purporting to have been executed by Price in England, attested by two subscribing witnesses ; and they called Samuel A. Eliot, who testified that he had corresponded with Price, and believed the signature to be his. The tenant objected to the proof of the power of attorney upon this evidence of the handwriting of Price, but the judge admitted it. This instrument empowered the attorney to sell the land, either by private sale or by auction, and to dispose of the proceeds according to the future instructions of the constituent, but did not in express terms authorize the attorney to execute a deed.</p> <p>It appeared that a part of the upland of the Price estate was formerly vested in Mary Sweet, who died as early as 1721, and it did not appear that she or her heirs had ever made a conveyance of it. Nathaniel I. Bowditch testified (hat he could not find, by searching the records, that Mary Sweet or her heirs ever made any conveyance or claim of the flats on Sea street.</p> <p>As to this the jury were instructed, that they might presume a grant from the heirs of Mary Sweet, if the evidence should satisfy them that such a presumption could reasonably be made ; but that the rule of presumption as to twenty years’ adverse en joyment of an easement was not to govern them in the present case ; if however from the long possession of the demandants and those under whom they claim, and the non-claim of the heirs of Mary Sweet, they should think it reasonable to presume a grant, they should so find.</p> <p>Originally there was a continuous shore north and south of Summer street. The demandants read ancient records of the town of Boston, showing that divers persons had leave to wharf out from their upland lying north of that street. Also the record of the laying out, in 1683, of the lower end of Summer street and of Sea street, “ on the southerly side of land of John Gill, deceased, thirty feet in breadth from the lower corner of said Gill’s wharf next the sea.” Also of the laying out, at the same time, of Sea street and a grant of the flats and land between the highway into the sea, to the proprietors of the land which are abuttors on the said way, in equal proportions to their several grants on said way,” on condition of their keeping the street in repair.</p> <p>Numerous deeds and other documents were introduced in evidence on both sides.</p> <p>As to the division of the flats the jury were instructed, that if they should be satisfied from the evidence, that Summer street was laid out over the flats in conformity with the lines of the lots, and of the wharves to the northward of the street, it would be evidence to show that the flats to the southward were to be divided by the same course ; and if they should so find, the demandants would be entitled to the flats in front of their upland between Summer street and a parallel line to the south, so as to give them the same width throughout as their lot measured at high water.</p> <p>The jury found accordingly.</p> <p>If either of the directions was incorrect, a new trial was t» be granted ; otherwise judgment was to be entered on the verdict.</p>

<p>En an action by a surety on an administration bond against a co-surety for contribution, it appeared that the defendant signed the bond at the request of the plaintiff and upon the plaintiff’s verbal promise to save him harmless. It was held, that this promise might be performed within a year and therefore was not required by the statute of frauds to be in writing, and that it was a valid defence to the action.</p>

Trespass quare clausum fregit, brought against Hall and one Gilbert. In the Court of Common Pleas the defendants pleaded a joint plea of not guilty, upon which the plaintiff joined issue by adding the similiter. When the case came on for trial in that court, and before any evidence had been offered, the defendants moved for leave to retract their joint plea and file several pleas, and leave being granted, they filed several pleas of not guilty.

Assumpsit on a policy of insurance, dated October 13, 1835, whereby the defendants caused the plaintiffs “ to be insured, lost or not lost, $ 50,000 on property (copper or zinc) on board any vessel or vessels in which it may be shipped for their account between 20th October instant, and 1st February next, attaching to earliest shipments, as aforesaid, at and from New York to Taunton, or at and from Taunton to New York, with liberty, between Taunton and Somerset, to…

This was an appeal from the decision of the commissioners appointed in the Court of Probate, to examine the claims against the estate of Newton Willey, represented as insolvent by the defendants, who were his executors. It appeared, that in the report of the commissioners, the claim of the appellant was disallowed ; that an appeal from their decision was claimed and entered in this Court ; and that the appellees pleaded the general issue to the claim, which was joined.

<p>Writ of right, commenced on the 13th of September, 1836. The tenants, in right of the wife, are summoned to answer to the Overseers of the Poor of the Town of Boston, in the Province of Massachusetts Bay, in New England, a corporation duly established by law, in this Commonwealth, whereof Joseph Lewis (and eleven others named,) all duly elected and qualified according to law as overseers of the poor of the city of Boston for the year 1836, are the sole and only members, in a plea of land, wherein the. demandants demand a certain parcel of land (described) in Boston, which they claim as their right and succession ; whereupon they say, that within forty years now last past, the Overseers of the Poor of the Town of Boston in the Province of Massachusetts Bay, in New England, a corporation then existing and duly established by law in said Commonwealth, whereof Edward Proctor (and eleven others named,) all duly elected and qualified according to law as overseers of the poor for the town of Boston in the year 1796, were the sole and only members, and whose suecessors the demandants are, were seised of the parcel of lana aforesaid in their demesne as of fee and right, taking the profits &c., and afterwards the said overseers of the poor for the town of Boston for the year 1796, ceased to hold the office of and be overseers of the poor for said town of Boston ; after which the said Joseph Lewis (and eleven others before named) were duly elected and qualified according to law as overseers of the poor for the city of Boston for the year 1836, and thereupon became by law a corporation as aforesaid, and the lawful successors therein of said Overseers of the Poor for the Town of Boston for the year 1796, and of which land the demandants complain that the tenants unjustly deforce them.</p> <p>The tenants demurred.</p> <p>At March term, 1838, the board of overseers chosen for that year filed a motion, that they might be allowed to come in and prosecute the action, as successors of the board chosen for the year 1836. (St. 1826, c. 70; Revised Stat. c. 93, § 14, 23.)</p>

<p>This was assumpsit on a policy of insurance, whereby the defendants insured the sum of $ 2,500 on the brig Adams, at and from Wilmington to Jamaica and at and from thence to her port of discharge in the United States. It was alleged, that the vessel was totally lost upon a coral reef near the Isle •of Pines, while on her voyage from Jamaica to Wilmington.</p> <p>Plea, the general issue.</p> <p>The plaintiffs, in order to maintain the issue on their part, introduced the policy, the register of the vessel, the written abandonment of their interest, and the depositions of three witnesses, which had been taken on behalf of the defendants, detailing the circumstances attending the loss of the vessel. They also examined a witness vim voce, and his testimony was reduced to writing. The defendants, “ confessing all said evidence to be true, and admitting every fact and every conclusion which the evidence thus given by the plaintiffs conduces to prove,” say that the matters thus shown in evidence are not sufficient in law to maintain the issue on the part of the plaintiffs, and pray judgment that the jury may be discharged from giving any verdict upon such issue, and that the plaintiffs may be barred from having their action against them. The plaintiffs joined in the demurrer.</p>

Assumpsit upon an award. The plaintiff, for himself and others, claiming under the will of Mary Dunbar, joined with the defendant in a written submission to arbitrators, to determine whether the pew No. 102, in the church in Brattle square, “ legally belongs to the estate of said Mary Dunbar, to those who claim under her, or to any of them, or to the said Hooper and “ if said arbitrators shall determine that said pew legally belongs to the estate of said Mary Dunbar, or to…

<p>After the several jail limits were extended to the boundaries of the counties in which the jails were respectively situated, in regard to debtors committed in execution for debts contracted aftei April 2, 1834, a debtor imprisoned on execution for a debt contracted before that day, gave bond conditioned that he would remain within the precincts of the prison. It was keld, that such debtor, by going without the original jail limits, but not without the county, had committed a breach of the condition for which his surety was liable, although the limits were not set out in the bond, or the time when the debt was contracted noted on the execution, and although the jailer, upon being inquired of by the obligors when the bond was executed, had informed the debtor, that he might go anywhere within the county without breaking the condition of the bond.</p>

<p>Trover against a deputy sheriff, who had attached certain property alleged to belong to the plaintiff, on a writ issued in favor of Fowler Bragg and others against Nathaniel Blanchard. The writ was dated on July 21st, 1837.</p> <p>The defendant pleaded the general issue, and justified upon the grounds, that the property belonged to Nathaniel Blanchard at the time of the taking, or that if he was not the sole owner thereof, he had an interest in it as a partner of the plaintiff.</p> <p>The trial was before Putnam J.</p> <p>No evidence was produced, showing that any demand of the property had been made of the defendant previously to the commencement of the action.</p> <p>Nathaniel Blanchard was called as a witness by the plaintiff ; but the defendant obj'ected to his admission, on the ground that he was interested in the event of the suit.</p> <p>It appeared, that some time in July or August, 1836, the plaintiff, who was the son of Nathaniel Blanchard, being then about twenty years of age, made a verbal agreement with his father, that the latter should carry on the business of manufacturing shoes in the name and on the account of the son, and as his agent, and that the son should give to his father one half of the profits as a compensation for his services ; that the jroperty in question was a portion of the property purchased by the father in the name and as the agent of his son, under that agree * ment; and that it was attached in a store kept by the father.</p> <p>It further appeared, that the business had not yielded any profits ; and that no settlement of accounts had been made between the father and the son.</p> <p>N. Blanchard thereupon released all his right and interest in the suit, to the plaintiff; but no release was given by the plaintiff to the witness ; nor did it appear how much the witness was indebted to the plaintiff for any money which he had taken from the business and appropriated to his own use.</p> <p>Under these circumstances, the witness was permitted to testify.</p> <p>The witness thereupon testified, that the plaintiff had devoted himself wholly to the teaching of music, for two or three years past; that just before the agreement was made, the witness had failed ; that he contributed no capital to carry on the business ; that he purchased unmanufactured stock in the name and on the credit of the plaintiff, and consigned manufactured articles to the venders, to be sold for his account ; and that he informed the persons with whom he dealt, that he was acting as agent of the plaintiff, and requested them to sell to him ; but that he had sold goods consigned to him by his friends on commission, for his own benefit.</p> <p>The deposition of the plaintiff was introduced in evidence, by which it appeared, that he had had no charge of the business, and had contributed no capital to it; and that he had received nothing therefrom.</p> <p>It further appeared, that a balance of several hundred dollars was due from the plaintiff to the firm of H. Cobb & Co. of whom most of the purchases were made.</p> <p>The defendant contended, that the action could not be maintained, for the following reasons :</p> <p>1. Because the arrangement between the father and son was for the purpose of secreting property from attaching creditors, and was not a bond fide agreement.</p> <p>2. Because, if the agreement was bond fide, still N. Blanchard was a copartner with the plaintiff as to third persons, he receiving one half of the profits.</p> <p>3. Because the property attached being copartnership property, and N. Blanchard having an interest therein at that time,. the attachment was rightful; and in order to malte a conversion, a demand must have first been made of the defendant.</p> <p>4. Because one partner cannot maintain trover against an officer who attaches the copartnership property.</p> <p>But the jury were instructed, that the action could be maintained, notwithstanding the agreement in regard to profits between the plaintiff and his father; that no demand was neces sary to constitute a conversion ; and that if they were satisfied, that the agreement was madejn good faith, they must bring in a verdict for the plaintiff.</p> <p>The jury returned a verdict for the plaintiff.</p> <p>If these instructions were erroneous, and the Court should be satisfied that the verdict was against the weight of the evidence, the verdict was to be set aside, and a new trial granted ; otherwise judgment was to be rendered on the verdict.</p>

<p>Trover for divers goods attached by the defendant as sheriff of Suffolk. A verdict had been found for the plaintiff, which the defendant now moved to set aside, upon the affidavits of the jurors, that in assessing the damages they proceeded under a mistake.</p>

<p>Assumpsit upon three promissory notes, the first of which was as follows :</p> <p>“Boston, October 20, 1836. For value received, we jointly and severally promise to pay Samuel Rice, him or his order, the sum of one hundred dollars, borrowed money, on demand, with interest. Patten & Johnson for Ira Gove.”</p> <p>The other notes were for the sum of $ 12 each, and were dated October 27, 1836, and November 1, 1836, respectively, but in other respects were similar to the first note.</p> <p>The trial was before Dewey J.</p> <p>The defendant denied the authority of Patten & Johnson to borrow money or execute notes as his agents.</p> <p>The plaintiff offered in evidence the deposition of Patten, for the purpose of proving that he was authorized to act for the defendant. The defendant objected to the admission of the deposition, on the ground that the deponent was interested ; but the objection was overruled, and the question reserved for the consideration of the Court.</p> <p>The jury found a verdict for the plaintiff.</p> <p>If the deposition was inadmissible, the verdict was to be set aside, and a new trial granted ; otherwise, judgment was to be rendered on the verdict.</p>

<p>Where a vessel was chartered from New York to the St. John’s river in Florida, there to take on board and transport to Charlestown a cargo of timber for a certain sum per cubic foot, and the cargo was ready to be put on board upon her arrival in the St. John’s, but the vessel was lost on her voyage thither, it was held, that the owners of the vessel were entitled to recover, under a policy on her freight for such voyage, the amount which would have become due to them for the transportation of the cargo ; and that it was immaterial, that this was not a stipulated sum certain in the charter-party, as it might be ascertained from the capacity of the vessel and the rate per cubic foot.</p> <p>A general policy on freight, will only cover freight to be earned by carrying goods under deck.</p> <p>Wherefore, a stipulation in a charter-party, that the vessel shall carry timber both on and under deck, need not be disclosed to the underwriters of a general policy on her freight, unless a special inquiry is made by them.</p>

<p>Where a person who was possessed of a right to acquire a clear title to land upon the performance of certain conditions, executed a bond in which, after a recital, that he had sold the land to the obligee, it was stipulated, that if the obligee should pay a negotiable note given in part payment therefor, at its maturity, and should give satisfactory security for the residue of the purchase money payable at a future time, the obligor should thereupon convey the land to the obligee in fee, it was heldf that this was a contract for land, and not for the right to acquire a title thereto ; that the terms in fee} implied an absolute and unconditional fee simple; that as the stipulations in the bond were to be performed simultaneously, they were dependent ; and that the obligor not having acquired a clear title to the land at the maturity of the note, the consideration of the note had failed.</p>

<p>This was an action of debt, to recover the semi-annual bank tax for April, 1838. The action was brought on the 1st of May, 1838.</p> <p>The trial was before Putnam J.</p> <p>The Commonwealth Bank was incorporated by St. 1823, c. 127, and its charter was continued in force until the 1st of October 1851, by Si. 1830, c. 58. On Monday the 2d of April, 1838, the St. 1838, c. 60, was passed, repealing the charter of the bank, but providing “ that nothing in this act contained shall be so construed as to release or absolve the said corporation, or any director or stockholder thereof, from any liability created by any provisions of the acts hereby repealed,” and “ that this act shall take effect from and after its passage.” The defendants contended, that they were entitled, by virtue of St. 1828, c. 96, to thirty days after the expiration of ten days from the first Monday of April, 1838, in which to make voluntary payment of the tax claimed by the plaintiff, which period of time had not elapsed, when this action was cbmmenced.</p> <p>The defendants also contended, that the repeal of the char ter of the bank operated to prevent the claim of the plaintiff from arising, and as a bar to its recovery.</p> <p>The defendants further contended, that the repeal of the charter operated by law to transfer all the assets of the bank to those persons who were directors at the time of the repeal, as trustees for all parties in interest, and that the claim of the plaintiff, if legal, must be made against such trustees, and not against the corporation, as such.</p> <p>The plaintiff was to become nonsuit, or the defendants to be defaulted, according to the opinion of the Court.</p>

<p>Br an agreed statement of facts, it' appeared, that on the 10th of February, 1837, the plaintiff deposited with the defendants, the sum of $ 2000, and received from them a book containing the following words and figures, to wit:</p> <p>i6Dr. Franklin Bank in account with B. F. White, Cr. 1837, Feb. 10th. To cash deposited, $ 2000. The above deposit to remain until the 10th day of August. E. F. Bunnell, Cashier.”</p> <p>It further appeared, that on the 7th of July, 1837, the plaintiff brought this action against the bank to recover the money so deposited by him, declaring on the money counts, and on an account stated.</p> <p>If the Court should be of opinion, that the action could be maintained, the defendants were to be defaulted and judgment rendered for the sum of $ 2000, with interest; otherwise the plaintiff was to become nonsuit.</p>

<p>This was an action on a policy of insurance, dated December 19th, 1836, whereby the defendants caused the plaintiff, Reynolds, to be insured for whom it might concern, the sum of $ 6500, on the brig Gem, valued at that sum, for one year. The policy was made payable to Reynolds. It was provided by the policy, that the assured should not have a right to abandon for the amount of damage, unless the sum to be paid by the underwriters, upon an adjustment as of a partial loss, should be equal to half of the agreed value of the vessel. The plaintiffs claimed for a total loss.</p> <p>The trial was before Shaw C. J.</p> <p>It appeared, that on the 9th of April, 1837, the vessel, having struck the bottom, was brought to anchor near Cape May, and being in a leaky condition and in danger of sinking, the master, for the preservation of all on board, slipped her cable and she went ashore ; that a part of her cargo having been taken out, she was got off by the defendants and removed to Philadelphia, with only part of her cargo on board, and after being repaired by them, was tendered to the plaintiffs ; that the expense of getting her off was $ 1500, and the cost of repairs, $ 2998-61, amounting in the whole to the sum of $4498-61 ; and that Reynolds, on the 20th of April, 1837, addressed to the defendants a letter as follows. “ The brig Gem being ashore and not probable that she will be got off, I hereby abandon said vessel to the office and claim a total loss, as insured by policy No. 16,677. (Signed) W. B. Reynolds ; ” but that the defendants refused to accept this abandonment.</p> <p>The defendants contended, that the damages, after the legal deductions were made, did not amount to fifty per cent, and so that there was not a constructive total loss ; that the cost of getting the vessel off and removing her to Philadelphia, was not to be included with the expenses of repairs ; that the abandonment was insufficient in point of form ; that there was no unreasonable delay on their part in getting off and repairing the vessel, nor any substantial deficiency in the repairs ; but that if there were, these circumstances would not amount to an acceptance of the abandonment.</p> <p>The jury were instructed, that in estimating the amount of damages, in order to determine whether there was a construe-rive total loss, pure general average charges were not to be included ; that if a vessel is voluntarily stranded, in order the better to save the vessel and cargo, and afterwards the vessel and cargo are got off, and the cargo put on board and the voyage prosecuted, the damage done by such voluntary stranding, and the expenses attending it, are strictly general average charges; but that if a vessel is in a dangerous condition, having sustained damage by one of the perils insured against, and upon being brought to anchor, is found to be leaky and in danger of sinking or being beaten to pieces at her anchors, and the cable is cut or slipped, as the safest thing to be done to preserve life and property, and the vessel is thereupon driven ashore and the cargo taken out and not again put on board to be carried forward, in such case the damage done to the vessel and the cost of getting off and saving, are not strictly gen eral average charges, but are to be estimated in computing the fifty per cent; that if the damage would amount to more than fifty per cent, computed upon proper principles, the insured had a right to abandon ; that in such case the insurers had no right to repair the vessel and tender her to the assured and so avoid the effect of the abandonment ; that as to the question, whether the abandonment was made within a reasonable time, it was for the jury, being a mixed question of law and fact; that if the jury were satisfied, that upon the first information the assured were in a state of uncertainty as to the actual condition of the vessel, and waited a few days for more definite information, and not with a view to speculate upon chances, if the vessel was stranded but not bilged, and if the length of time she remained ashore had increased the probability that she could not be got off, and the loss continued total at the time of the abandonment, these were circumstances tending to show that the abandonment was made within a reasonable time ; and that if it were not made within a reasonable time, the plaintiffs could not recover for a total loss.</p> <p>It was objected, that the notice of abandonment was not made in due form, it being made by Reynolds alone. In regard to this, the jury were instructed, that the insurance having been made by Reynolds in his own name, for whom it might concern, and he being recognized by the contract as the party insured, an abandonment by him was made upon apparently sufficient authority ; and that if there was no evidence of dissent on the part of the other parties in interest, their assent was to be presumed from their having employed him to make the contract and bringing the action.</p> <p>It was also objected that the notice of abandonment did not sufficiently specify the nature of the damage and the causes and grounds upon which a total loss was claimed. Upon this point, there being evidence tending to show, that the notice of abandonment was accompanied by certain letters, which were at the same time exhibited to the insurers, the jury were instruct ed, that if such letters were thus exhibited to the insurers at the time of the abandonment, they did disclose sufficient ground of technical total loss, to warrant the abandonment.</p> <p>The main questions left to the jury were, whether the ves sel was completely and fully repaired, and whether this was done within a reasonable time.</p> <p>In regard to these questions, the jury were instructed, that an acceptance of the abandonment by the insurers was not to be presumed from their, taking possession of the vessel and repairing her, if possession was taken for the special and declared purpose of repairing her for the benefit of the assured and restoring her thus repaired ; that if she was fully repaired and tendered within a reasonable time, and the loss properly computed did not exceed fifty per cent, it was a complete performance of the contract on the part of the defendants ; but that if there was a substantial deficiency in her repairs, or any unreasonable delay in getting her off and making the repairs, the plaintiffs were not bound to accept the vessel ; that in either of these cases, the plaintiffs might insist upon their abandonment ; and that this would amount to a constructive acceptance of the abandonment by the defendants, and the plaintiffs might, in such case, recover for a total loss.</p> <p>It was further contended on the part of the defendants, that they could not be charged for a total loss on this ground, unless the jury were satisfied that they intended to accept the abandonment.</p> <p>The jury were instructed upon this point, that it was not necessary to prove such intention on the part of the defendants ; but that if there was unreasonable delay or an inadequate and insufficient repair of the vessel, it was a constructive acceptance of the abandonment.</p> <p>The jury returned a verdict for the plaintiffs.</p> <p>If the Court should be of opinion, that the directions were wrong in point of law, or that the verdict ought to be set aside as against the evidence, a new trial was to be granted ; otherwise judgment was to be rendered on the verdict.</p>

This was an action on a policy of insurance dated on the 10th of January, 1837, whereby the defendants caused the plaintiffs to be insured the sum of $ 9000 on the brig Hope, for one year, to all ports and places. The trial was before Shaw C. J. It appeared that the brig, which was a new vessel, sailed, after the policy attached, from Damariscotta for New Orleans, and was totally lost and abandoned at sea in March, 1837.

<p>Assumpsit by the indorsees of a bill of exchange for the sum of $780-40, dated on the 13th of February, 1836, drawn by Jabez Hatch junior, on E. Merriam of New York, and payable in six months to the order of Jabez Hatch, the de fendant’s testator, by whom it was indorsed. The bill was accepted by Merriam.</p> <p>Upon a case stated it appeared, that on the 16th of August, when the bill became due, it was presented for payment to the acceptor in New York, and upon payment being refused, notice thereof was given to the drawer in due season. A notice directed to the testa-or, of the non-payment of the bill, inclosed in another notice addressed to Marcus Whiting, the cashier of the plaintiffs, was also deposited in the postoffice at New York. On the day after the notices were received by Whiting, the messenger of the bank carried the one addressed to the testator to the house last occupied by him previously to his death, and inquired of a person there, if that was the testator’s house, and, upon being answered in the affirmative, left the notice there. The family of the testator were not, at the time the notice was left, occupants of the house; but this was not known to the messenger.</p> <p>The testator died in March, 1836 ; and the defendant was duly appointed administrator of his estate, with the will annexed, on the 30th of May, 1836, and gave notice of his appointment according to law. On the 14th of October, 1836, Whiting notified to the defendant, that the bill had been protested for non-payment, and requested him to pay the same immediately. Whiting knew, when the bill became due, that the testator was dead.</p>

<p>Rider having recovered a judgment against the Ocean Insurance Company on a policy of insurance, execution was stayed in order that the company might bring a cross action against him on certain premium notes ; (20 Pick. 259 ;) and the company having obtained a judgment for a sum exceeding the amount recovered by Rider, and having moved for a set off of the judgments, H. H. Fuller asserted his lien on the judgment in the first suit, as attorney and counsel in that suit, for his fees and disbursements therein. He said that the statutes do not furnish an express rule for setting off judgments, and the Court would be governed by the analogy to a set-off of executions, in regard to which it is enacted by Revised Stat. c. 97, § 76, that the set-off shall not be “ allowed as to so much of the first execution as may be due to the attorney in that suit, for his fees and disbursements therein ; ” that in England the attorney has a lien for the fee paid by him to the barrister ; and that the word attorney is used by the legislature for attorney and counsel, and the intention was to protect from set-ofi all that is reasonably charged and expended by the person prosecuting the suit for the party, and not merely the taxable costs. Williams’s Law Diet. Fees to Counsel; Mon tagu on Lien, 59, 61 ; Babbington on Set-off, 107, 111, 112 ; 1 Moore & Scott, 429 ; Watson v. Mascall, 1 J. B. Moore, 286 ; Watson v. Maskell, 1 Scott, 658 ; Shapley v. Bellows, 4 N. Hamp. R. 347 ; Getchell v. Clark, 5 Mass. R. 309 ; Baker v. Cook, 11 Mass. R. 236 ; Dunklee v. Locke, 13 Mass. R. 525; St. 1810, c. 84 ; Revised Stat. c. 90, § 49, 52.</p>

<p>Assumpsit to recover the sum of $ 218'66, for expenses incurred in the support of Abijah Bemis in the house of correction of the city of Boston for several distinct periods of time, commencing on the 10th of August, 1829, and ending on the 16th of May, 1836, according to an account annexed to the writ.</p> <p>At the trial it appeared, that a vote was passed by the overseers of the house of correction in Boston, on the 5th of September, 1836, whereby E. Hersey Derby, Esq. was authorized to make a demand of the amount alleged to be due from the defendants to the plaintiffs for the maintenance of Bemis, and if necessary, to commence and pursue to final judgment, an action for the recovery of the same, in the name of the city of Boston.</p> <p>Mr. Derby testified, that on the 3d of March, 1837, he demanded in writing, payment of the amount alleged to be dua to the plaintiffs, of Benjamin James, who was chairman of the selectmen and overseers of the poor of Weston ; and that no question was then made as to his authority to make the demand.</p> <p>On the 17th of September, 1838, it was ordered by the board of aldermen of Boston, “ that the city of Boston ac knowledge and ratify the proceedings of the board of overseers of the house of correction, and of E. Hersey Derby, their attorney,” in this case, which was then pending.</p> <p>The defendants admitted, for the purposes of this trial, that Bemis had his settlement by birth in Weston, and that such was his legal settlement, unless he had acquired some other.</p> <p>The defendants contended, that the action could not be maintained, for the following, among other reasons: That the plaintiffs had not shown any such demand of payment before commencing the action, as was required by law.</p> <p>The judge being satisfied that there was nothing in the case for the jury, took it from them, and reserved it for the consideration of the whole Court. If the Court should be satisfied, that the plaintiff could maintain this action, judgment was to be rendered for the plaintiff, for such sum as could by law be recovered ; otherwise, the plaintiff was to be nonsuited.</p>

<p>This was an appeal from a decree of the judge of probate disallowing certain payments made by the appellants, as executors of the will of John Lowell junior, to John A. Lowell, a trustee under the will, on the ground, that he was not duly authorized to receive the same, inasmuch as he had not given bond to the judge of probate, for the faithful discharge of his duties as such trustee.</p> <p>It appeared, that the testator, in his will, dated on the 8th of November, 1832, after making various devises and bequests, gave the residue of his estate to John A. Lowell, or in the event of his dying before the testator, to Francis C. Lowell, upon the following trusts, to wit, to invest the personal property and to collect the income accruing therefrom and from the real estate, and after deducting therefrom the expenses of executing the trusts and a suitable compensation for his services and also a certain amount for the preservation and increase of the trust fund, then to appropriate the residue of the income to the maintenance of public lectures to be delivered in the city of Boston, “upon philosophy, natural history and the arts and sciences, or any of them as the said trustee or his successors in the trust shall from time to time think expedient, for the promotion or the moral, intellectual and physical instruction and education of the inhabitants of the said city ; giving to the trustee or trustees for the time being, full power and authority to prescribe such terms and rules of admission to the said lectures, as they may think expedient for the public good ; the said trustee and trustees being in all respects governed by any directions,” which the testator might leave in writing.</p> <p>The will also contained the following provisions. “ And 1 hereby constitute and appoint the trustees of the Boston Athenaeum for the time being, to be visitors of said trust fund, with power to require accounts of the administration thereof, and to compel the appropriation thereof to the uses aforesaid, but without any power or authority to prescribe or direct by whom the said lectures shall be given, nor the subjects thereof; considering it best to leave that high personal responsibility upon the trustee or trustees of the fund for the time being. And in case of the death of the said trustee, or of his successors in said trust, without appointing a successor, my will is, that the said trustees of the Boston Athenaeum for the time being shall appoint one or two suitable person or persons to be trustee or trustees in the place or stead of him or them so dying, which new trustee or trustees so to be appointed, shall have the same powers touching the trust premises, and in the execution of the trusts herein declared, as the said John A. or Francis C. would have had by virtue hereof, if living and acting as such trustee ; provided however, that said trustee and his successors in said trust shall each have power to appoint his successor or successors in it ; and it is my wish that they should exercise such power in their last will or otherwise.”</p> <p>On April 1, 1835, the testator executed a codicil to his will, which, after prescribing more particularly the subjects of the lectures, and the mode of appointment and the duties of the lecturers, proceeded as follows. “ Each trustee shall appoint his own successor within a week after his accession to his office, in order that no failure of a regular nomination may take place. This appointment of his successor shall be made by means of a sealed instrument to be delivered to the Trustees of the Boston Athenaeum, and which they shall open after the decease of the trastee who delivered it to them. The trustee may tt any time and as often as he sees fit, revoke his formet appointment, and take back the aforesaid instrument, substituíing another in its place. He may also nominate his successor in his will, if he please so to do ; and in case of a difference in the person nominated in the will and him who is nominated in the abovementioned instrument, the individual last nominated in point of time, shall be bis successor. In selecting a successor, the trustee shall always choose, in preference to all others, some male descendant of my grandfather, John Lowell, provided there be one who is competent to hold the office of trustee, and of the name of Lowell. The compensation of the trustee shall be such reasonable sum, to be paid annually out of the income of the trust fund, as shall be approved of by the Trustees of the Boston Athenseum for the time being. He shall keep an account of his management of the trust fund, conformably to the provisions of my will, and of the sums expended by him for the promotion of the objects of the trust. He shall also keep a record of all his proceedings touching the appointment of lecturers and other objects connected with the trusts ; a copy of this account and of this record for the past year, shall, on the first day of January, be annually presented by him to the Trustees of the Boston Athenasum, who shall have authority to publish the same if .they see fit.”</p>

<p>Assumpsit. By an agreed statement of facts it appeared, that the plaintiff relied upon the following letter, dated on the 4th of October, 1831, and signed by the defendant : “To whom it may concern. The bearer, Menzies Rayner junior, son of the subscriber, is, with the advice of several gentlemen, Hon. J. C. Churchill, George Todd and others, about to establish a store in Portland, of books and stationery, and now goes on to Boston to obtain an assortment of stock for that Durpose. He will commence on a limited scale, with the intention of enlarging the business next spring. He wishes to purchase school books, &c. upon a credit of four or six months, and miscellaneous books, paper, See. on commission. For the faithful management of the business and punctual fulfilment of contracts relating to it, the subscriber will hold himself responsible.”</p> <p>It was admitted, that this letter was brought to Boston on or about the 12th of October, 1831, and delivered to the plaintiff by M. Rayner junior ; and that, at that time, the plaintiff sold to him books and stationery, amounting to the sum of $251-67. It was further admitted, that during the three following years, the plaintiff sold other books and stationery to M. Rayner junior, the last transaction being on the 20th of February, 1834 ; that from time to time, during those years, M. Rayner junior made payments to the plaintiff, which were reg ularly credited to him in the plaintiff’s books ; that these payments were to a larger amount than all the books and stationeay furnished or sold to him by the plaintiff within six months from the 12th of October, 1831 ; but that there was still a balance due to the plaintiff, which was to be ascertained by an assessor under the direction of the Court, if they should be of opinion that this action could be maintained.</p> <p>The deposition of M. Rayner junior, taken on the behalf of the defendant, was made a part of the case. In this deposition the witness stated, that in October, 1831, he purchased books and stationery of the plaintiff, which were charged to the witness, and paid for by him in a short time ; that subsequently he made other purchases of the plaintiff, and paid him therefor, in part, at different times, to the amount of about $ 1900 ; that during all the time, when he was so purchasing books, the plaintiff never informed him, that he considered the defendant liable on account of the witness, notwithstanding the witness was frequently unable to meet his demands for payments ; that the defendant had never intimated to the witness, that he had been called on by the plaintiff for the balance due, although the witness had frequently seen the plaintiff at the house of the defendant, both before and after the witness had failed to meet his payments ; that at the time when the witness obtained the letter above set forth, he considered it to be a letter of recommendation, he being a stranger to the plaintiff, and the defendant being acquainted with him ; that he supposed that this was the understanding of the plaintiff, because the plaintiff, after reading the letter, handed it back to the witness, and some time afterwards the witness voluntarily returned it to him ; that the defendant was never, in any way, interested in the store kept by the witness ; and that the purchases made of the plaintiff were made on condition, that the witness should return to him all the books not sold by the witness, and the books were considered as the property of the plaintiff, until they were so sold.</p> <p>It was also admitted, that the counsel for the plaintiff went to Portland in July or August, 1834, at the request of the plaintiff, for the purpose of obtaining a settlement of the plaintiff’s claim ; that he had a conversation with the defendant and M. Rayner junior, upon the subject of such claim, and endeavoured to induce them to. settle it, or to give security ; and that he was unable to obtain any thing except an order drawn by the defendant, on Marsh, Capen & Lyon, of Boston, for a number of volumes of sermons, the value of which, if the action could be maintained, was to be ascertained by the assessor. This order was accepted, and the books were delivered to the plaintiff.</p> <p>There was no evidence, that it was ever notified to the defendant, that M. Rayner junior was in arrears in his payments to the plaintiff, prior to July or August, 1834. Nor was there any evidence, that the plaintiff ever gave notice to the defendant, that the guaranty, or the proposal for a guaranty, contained in the letter, was accepted or received by the plaintiff, nor that the defendant was ever informed, that the plaintiff had sold books or stationery under or in reliance upon such letter, any further than the same is matter of legal presumption from the facts which were admitted in the case stated.</p> <p>The plaintiff was to become nonsuit, or the defendant to be defaulted and the amount of damages ascertained by an assessor, according as the opinion of the Court should be' upon the foregoing statement of facts.</p> <p>The case was argued in writing.</p>

<p>After an answer to a bill m equity and a general replication have been filed, and evidence taken, and the cause has come on for hearing, it is too late to object to the jurisdiction of the Court on the ground that the plaintiff has an adequate remedy at law, provided it is competent to the Court to grant relief and it has jurisdiction of the subject matter.</p> <p>A remedy by an action for damages against a person actually insolvent, is not a plain, adequate and complete remedy at law, so as to deprive the Court of jurisdiction in equity.</p> <p>A bill in equity may be maintained for the specific performance of a written contract relating to personal properly, if the plaintiff has not an adequate remedy at law.</p> <p>If one, having the legal title to a chattel, agrees in writing, fora valuable consideration, to hold it subject to the order of the plaintiff, but subsequently assigns it to another with notice of the agreement, the plaintiff may maintain a bill in equity against the assignee for a specific performance of the agreement.</p> <p>A bill in equity alleged, that one C, being the equitable owner of one half of a certain ship, drew on some of the defendants, in whom was the legal title, an order to pay to the plaintiff all balances due to C in account, and to hold C’s half interest in the ship subject to the plaintiff’s order, and C’s order was accepted in writing absolutely, but that afterward the acceptors assigned the ship to the other defendants, with notice of the acceptance. The answer of the defendants admitted the acceptance of the order, but averred that it was accepted with notice to the plaintiff that no balance was due to C, but on the contrary a large balance was due from Ekim and the vessel was held for such balance. It was held, that this allegation was tiot responsive to the bill, and that parol evidence of it was inadmissible, because il would contradict the written acceptance.</p> <p>An indenture, containing a general assignment of a debtor’s property in trust for the payment of his debts and a release of such debts by the creditors, does not constitute the assignees bond fide purchasers for a valuable consideration as against one having an equitable title to a portion of the property, unless it be shown that some new responsibility was incurred on the credit of the property or that the creditors would not have become parties to the indenture if they had known that such portion «of the property was held by the debtor in trust.</p>

<p>Where a citizen of another ^tate executed therein an assignment of his goods there situated, to a citizen of this State, in trust for the payment of his creditors, most of whom lived in such other State, to which assignment the creditors were not parties, but which nevertheless, by the law of such other State, was a valid assignment, and the goods were never brought into this State, it was held, that the assignee was not liable to be charged here for the goods, on a trustee process sued out by one of the creditors, a citizen of this State.</p>

<p>To this trustee process, which was returnable in the county of Suffolk, James Littlefield, one of the trustees named in the writ, pleads in abatement, “ that at the time of suing out and service on him of said writ, he dwelt in Randolph in the coun ty of Norfolk, and did not dwell in said county of Suffolk, and that at the time of suing out said writ and of the service on him as aforesaid, none of the parties then named in said writ as trustees, dwelt in said county of Suffolk; and this he is ready to verify.” The other trustees pleaded in like manner. The plaintiff filed a general demurrer.</p>

<p>This was assumpsit on a promissory note, dated the 23d of December, 1835, for $1500, made by the defendant’s intestate Eugene A. Homer, payable to E. D. Dyer and S. Dyer, the plaintiffs, (but not to their order,) in six months.</p> <p>At the trial, before Wilde J., the defendant offered Philo S. Shelton as a witness, but he was objected to as being interested. To show his interest, it was proved or admitted, that the Intestate was the son of Benjamin P. Homer, and that upon his death the father, who was then living, became sole heir to his property; and that afterwards the father died, leaving a will, which was proved and allowed in the Probate Court. By the will, after certain specific legacies, one third of the residuum of all the testator’s estate was given to certain persons in trust for the wife of Shelton, and the trustees were to hold the same for her use and to pay over the rents, interest, dividends and profits to her for her sole use and upon her own receipts under her hand. It was contended that Shelton was thus interested to increase such residuum and in the event of the suit But the objection was overruled.</p> <p>Shelton testified, that before the note in suit was made, E D. Dyer, one of the plaintiffs, at an interview with the intestate, represented to him that he wished to put his property beyond the reach of attachment by his creditors, and asked the intestate to take a bill of sale of certain personal property, viz. coal, hogsheads, and other articles, and give his promissory note therefor, not payable to order, assuring him that the note was not to be used and could not be ; that thereupon a bill of sale was made and delivered by the plaintiffs to the intestate, and the note in suit was given; that the property was not delivered to the intestate, it being agreed that the articles should remain in the possession and control of the plain tiffs, to be used and disposed of by them in the same manner as if no such bill of sale or note had been given ; and that subsequently the plaintiffs sold a part of the hogsheads in the usual course of business, and consumed a part of the coal in carrying on a distillery, for which purpose it was known to the intestate that the coal was originally purchased by the plaintiffs. The witness further testified, that in June, 1836, after the death of the intestate, his administrator commenced an action against E. D. Dyer, one of the plaintiffs, and attached the horse and such other articles of property mentioned in the bill of sale, as had not been previously disposed of or consumed by the plaintiffs ; that the horse was taken away by the officer and offered for sale, but there being no bidders, the witness took the horse into his possession, and, as agent of the administrator, sold it for $ 25, which sum the administrator credited to E. D. Dyer; that the officer did not remove the hogsheads and coal which he attached, but kept them locked up in the distil-house, of which the officer held the key, and that they were subsequently seized and sold by other officers, for the creditors of the plaintiffs. He further testified, that the intestate, in one instance certainly, and perhaps in two or three instances, bad given his notes to the plaintiffs, to be by them disposed of to raise money.</p> <p>The judge ruled, that if the testimony was believed, it was a good defence.</p> <p>The plaintiffs then introduced evidence to show, that the note in suit was indorsed by them and sold immediately after its date, for a valuable consideration, to J. S. & W. C. Tyler, who were still the holders of it, and that the action was commenced and prosecuted by them and for their benefit in the name of the plaintiffs.</p> <p>The plaintiffs contended, that if this evidence was believed by the jury, and if the Tylers had no knowledge or notice of any of the matters which had been testified to by Shelton, until after the commencement of the action, the Tylers might maintain the action in the plaintiffs’ name.</p> <p>But the judge ruled, that even if the Tylers had purchased the note immediately after its date, and had it indorsed and transferred to them for a valuable consideration, without notice of any thing that would impair its validity, and in the belief that it was fairly given for a valuable consideration, still the action could not be maintained, if the testimony of Shelton was believed.</p> <p>The plaintiffs thereupon submitted to a nonsuit, which was to be set aside, if the ruling of the judge were in any respect erroneous, and the action to stand for trial.</p>

<p>The county commissioners laid out a highway and passed the usual orders for making it, and the owner of land over which it was laid out, obtained a verdict for his damages, which was accepted by the Court of Common Pleas and certified to the commissioners ; but before the proper time arrived for granting an order on the county treasury for the payment of such damages, measuies were taken to discontinue the highway, and soon afterwards an order was passed to discontinue it, and the land above mentioned was never entered upon, and the commissioners refused to give the owner an order for the payment of his damages as found by the verdict. It was held, that he had a vested right to such damages, and that he was entitled to a writ of mandamus to the commissioners to compel them to draw an order for the payment thereof.</p>

<p>Replevin for a quantity of printed goods. Plea, the general issue, with a brief statement that the defendant, on the 3d of August, 1837, attached the goods, as a deputy sheriff, on several writs against Caleb B. Turner and Wells Laflin, partners under the firm of Turner & Laflin, as the goods of Turner & Laflin. Trial before Dewey J.</p> <p>The plaintiffs were Abner Perry, Heman Laflin and Gershom Turner. They claimed the property in the goods, under a mortgage and assignment from Turner & Laflin, dated the 20th of April, 1837.</p> <p>By the deed of mortgage Caleb B. Turner and Wells Laflin convey to the three plaintiffs and to Walter Laflin and Joseph M. Boies, the goods in question and other personal property to a large amount, on the condition that if the mortgagers shall save Heman Laflin and Perry harmless, from all their liabilities for the mortgagers, and shall pay to the plaintiffs severally all the debts due to them respectively from the mortgagers, and shall pay to Walter Laflin and Boies the sum of $ 1600 due to them from the mortgagers, then the deed shall be void.</p> <p>The assignment was by an indenture between O. B. Turner and Wells Laflin of the first part, the plaintiffs of the second part, and the several other persons, creditors of C. B. Turner and Wells Laflin who should become parties thereto, of the third part. By this indenture C. B. Turner and Wells Laflin assign and convey all their joint property, real, personal and mixed, consisting of dwelling-houses, manufactories, w-ater privileges, stocks, machinery, manufactured and unmanufactured goods, dye-stuffs, &c., and choses in action, to the plaintiffs, in trust to sell and dispose of the same and from the proceeds to pay the expenses of carrying the assignment into effect, and to divide the net proceeds ratably among all the creditors who shall become parties to the indenture. “ This assignment is made subject to any and every mortgage of any part of the abovenamed real or personal estate heretofore made and executed by the said Caleb B. and Wells.” The plaintiffs accept the assignment, and covenant with the parties of the first and third parts, that they will faithfully execute the trusts. “ And the said several other persons, creditors of said Caleb B. and Wells, and parties to this assignment of the third part, do severally accept said assignment, and approve of the terms and conditions thereof, and in consideration thereof they do severally release and discharge the said Caleb B. and Wells of and from all and singular their several claims and demands against them, the said Caleb B. and Wells, of every name and nature.” This indenture was executed and acknowledged by Caleb B. and Wells, and executed by the plaintiffs, on the 20th of April, 1887 ; and on the same day Caleb B. and Wells made oath, before a justice of the peace, that by the assignment they had conveyed all their property not exempted by law from attachment, for the benefit of all their creditors, according to the true intent and meaning of an act, (St. 1836 c. 238,) entitled an act to regulate the assignment and distribution of the property of insolvent debtors.</p> <p>The mortgage and assignment were drawn at Lee and carried by the attorney who drew them, to Adams, where Caleb B. and Wells lived, and all the papers were executed as hereinafter stated, at the house of Wells, between 7 and 11 o’clock in the evening of the 20th of April, 1837, and deliv ered in the order in which they were intended to take effect This mortgage and the other mortgages hereafter mentioned, dated on the 20th of April, were executed in the first place and delivered to Perry, who accepted the same in behalf of himself and the other mortgagees, naming the plaintiffs only, and went immediately with a witness and took possession of the property mortgaged. While Perry was absent, the last clause and the attestation were added to the assignment, also the certificate of the oath and acknowledgment, and the seals. After his return the assignment was executed by him and by the assignors. A messenger took the mortgage and the assignment to the register’s office at Lanesborough, to be recorded. At South Adams, on his way to Lanesborough, he called on Gershom Turner and told him that Caleb B. and Wells had made the mortgage to secure, among other things, his liabilities for them and his demands against them, and that Perry had taken possession for himself and the other mortgagees, and the messenger asked him whether he would accept the same. He accepted it, and likewise an absolute deed of land to him, from Caleb B. Turner, on the same evening. After a lapse of some minutes the messenger showed him the assignment and he executed it. The messenger left the assignment at the register’s office to be. recorded, and afterwards met Heman Laflin between Pittsfield and Lenox and informed him of the mortgage, and of Perry’s possession. Heman accepted it, also an absolute deed of land to him from Wells Laflin, and a mortgage of land to himself and the other plaintiffs from Caleb B. Turner and Wells Laflin, on the same evening. Afterwards the messenger informed him of the assignment; and Heman went to the register’s office and executed it.</p> <p>The plaintiffs met at Adams in the afternoon of the 21st of April, and were seen together going towards the works of Turner & Laflin. Perry remained at Adams and had possession of the mortgaged property as before stated, until the goods were attached, and forbid the defendants interfering with the goods at the time when he made the attachment; and before the attachment he showed him the mortgage and assignment. The plaintiffs, on the 31st of August, 1837, made a statement in writing of the demand for which the property was liable, and demanded payment of the same of the cashier of the Adams bank, the bank being one of the attaching creditors,: which was refused. The plaintiffs, after the assignment and before the attachment, had expended money in finishing the printed goods. There was no evidence that Walter Laflin and Boies, named in the mortgage first mentioned, ever accepted or assented to it.</p> <p>The intention of the parties at the time was', that the instruments should take effect in the order in which they were delivered at Adams, and according to the terms of the different instruments. The assignment was made to be subject to the mortgage. The mortgage and assignment were drawn in pursuance of instructions from Wells Laflin on the 19th of April, to secure the mortgagees, and then to convey all the remainder of the property of Turner & Laflin for the benefit of all their creditors, according to the statute of 1836. They were preparing at the same time. The assignment was executed at Adams from half an hour to two hours after the mortgage. Perry alone,, of the plaintiffs, was present or acted in the transaction of the 20th of April, at Adams, and he had no authority to act for the other plaintiffs ; who first knew of the proceedings from the messenger, and assented to them, as before stated. There was no evidence that any creditor of Turner & Laflin had ever assented to the assignment, except what appeared from the assignment itself.</p> <p>By agreement of the parties the Court were to render judgment for the plaintiffs or the defendant, on default or nonsuit, or direct a trial by jury, as they should deem proper.</p>

<p>An appeal lies from the decision of the Court of Common Pleas adjudicating upon the acceptance of the verdict of a jury in the case of laying out a highway, when the decision is founded on matter of law apparent on the record.</p> <p>In the location of a highway by the county commissioners, the town through which it passes is a party, and as such may apply for a jury to make alterations in the location, and may appeal from the decision of the Court of Common Pleas adjudicating upon the acceptance of the verdict.</p> <p>To what extent the jury may make alterations in the location of a highway by the county commissioners, quaere.</p> <p>Where several parties over whose respective lands a highway had been laid out by the county commissioners, applied fora jury to make alterations in the location and to re-assess their damages, and all the cases were submitted to the same jury at the same time, and a verdict was returned confirming the location over the lands of some of the parties and assessing their damages severally, and stating that as to another part of the location the jury could not agree, it was held, that the verdict was a several verdict in each case j and accordingly, that it ought to be received and accepted in each case in which the damages were assessed, and that the case in which the jury could not agree, ought to be submitted to a new jury.</p>

<p>In a demand of an assignment of dower, the widow claimed “ her dower in certain real estate situate in Great Barrington, of which my husband, P., was seised during his marriage with me, or in the lands conveyed by B. and wife to P., by deed bearing date Feb. 22, 1830, recorded at Great Barrington, book 65, page 211, and which land was conveyed to P. and you in common, and now all of it held by you.” It was held, that this description of the land was sufficiently certain, notwithstanding in the deed referred to, B alone conveyed the land and his wife merely conveyed her right of dower.</p> <p>Where land was conveyed by a deed absolute on its face, it was held that the widow of the grantee was entitled to dower therein, although the conveyance was in fact, upon a parol agreement, that on the repayment of a certain loan the land should be reconveyed, and the grantee never entered under his deed or claimed possession of the estate, a seisin in law by the husband being sufficient to entitle the wife to dower.</p> <p>In an action of dower it was held, that a prior right of dower which had been released to the tenant without being enforced, could not be set up against the claim of the demandant.</p> <p>Where lands are demanded, the description of them in the declaration must be so certain that seisin may be delivered by the sheriff, without reference to any description dehors the writ; and a defect therefore cannot be cured by a reference to a deed on record.</p>

<p>Isaac Sampson made his last will, containing only the following items : “ Item first. To my beloved wife, Amy Sampson, I give and bequeath the one half of all my property. Item second. To my brother, David Sampson, I give and bequeath the sum of eight hundred dollars, to be put into the hands of Elias Briggs, to tie laid out for his support and maintenance. Item third. To my sister, Sally Moore, to her children and heirs, I give nothing.”</p> <p>The testator’s property consisted of chattels, securities and accounts.</p> <p>On the 7th of November, 1837, Stephen Hosford, administrator with the will annexed, settled his first account in thcProbate Court, by which it appeared that the amount of property received by him was $ 3190-24, and that the amount of debts paid, funeral expenses and expenses of administration, was $796-34 ; and the judge of probate decreed, that the administrator should pay to the widow of the testator one half of all his property “ being $ 1583-80,” and to a trustee for David Sampson, $ 800, and that the residue-, viz. $ 10-10, in regard to which the testator had “ made no provision in his will, except that his sister Sally Moore shall take no part thereof,” should be divided between David Sampson, Bethany Briggs, Nancy Coon and Olive Felton, the brother and sisters and heirs at law of the testator, in equal shares.</p> <p>On the 7th of August, 1838, the administrator presented at the Probate Court a further account of property, amounting to $712-87, and of expenses, amounting to $57-50 ; and the judge decreed that he should pay to the widow, under the will, one half of the property, viz. $ 356-44, and should dispose of the balance, viz. $298-94, agreeably to the statute of distribunon, paying one half thereof, viz. $ 149’47 to the widow, and the other half to David Sampson, Bethany Briggs, Nancy Coon and Olive Felton, in equal shares.</p> <p>After this last decree Bethany Briggs and Nancy Coon appealed from the two decrees, because the judge directed one half of all the property to be paid to the widow, without deducting therefrom any part of the debts due from the testator or of the charges of administration.</p>

<p>It 18 not necessary, in order to revive a debt barred by the statute of limitations, ttias any specific sum should be acknowledged to be due, as the amount actually due may be proved by extrinsic evidence, provided the acknowledgment is broad enough in its terms to include such debt, and sufficiently particular to show that it was the subject matter of the acknowledgment.</p> <p>Thus, the defendant wrote to the plaintiff in 1833, as follows. 661 will thank you to let me have your account that you hold against me. Also, I will thank you to state to me the credit that you have given me. You may depend on seeing me at your office on Monday next I will endeavour to settle all my accounts with you; perhaps I shall not be able to pay the money; if not, we can find some way to settle.*’ It was held, that this was sufficient to take the claim out of the statute, the amount actually due being proved by other evidence In the same case, it appeared, that the claim of the plairtiff was founded on a mutual account between the parties, which consisted of numerous charges and crédito extending through a series of years, and that no rests liad been made nor any balances struck between them during that period. It was held that the acknowledgment contained in such letter might be properly applied to the entire account, as well to that portion of it which accrued more than six years before the letter was written, as to that which accrued within that time.</p> <p>In an action upon an account for money paid and for professional services, it appear ed, that the defendant wrote to the plaintiff, that he would call according to his request and settle with him. It was held, that interest should be allowed on the account from the date of such letter, it being sufficient evidence of a demand.</p>

<p>An unrecorded deed of wild land is not, qf itself, sufficient evidence of possession by the grantee, to entitle him to maintain trespass against a third person.</p>

<p>Where land appraised at $ 50*83, was set off in satisfaction of an execution amounting to $ 47*83 only, the levy was held to be invalid.</p> <p>Held also, that in an action by the execution creditor, for use and occupation, against a tenant in possession under the execution debtor, the tenant might take advantage of the defect in the levy.</p>

The last will of Caleb Hyde, dated the 1st of November, 1826, contained the following provisions : — I give and devise to my beloved wife, Rhoda Hyde, the house and lot of land, &c. I also give and bequeath to my wife, Rhoda Hyde, the whole of my stock in the Housatonic bank, at Stockbridge, amounting to six thousand dollars ; and in case I should sell or dispose of the bank stock aforesaid, I give and bequeath to her, the said Rhoda Hyde, six thousand dollars in cash, which…

Assumpsit on a joint and several promissory note for the sum of $ 3464, dated November, 30, 1833, made by the defendant and John B. Pratt, and payable to the plaintiff or bearer, in annual instalments with interest.

<p>Upon the trial of this action, before Dewey J., the deposition of Charles Griffin was offered in evidence by the plaintiff; but the defendant objected to its admission, on the ground, that it was taken under a commission issued while the action was pending in the Court of Common Pleas, but executed and opened in August, 1839, after the action was appealed from that court, and before the appeal was entered in this Court. The deposition was admitted, and a verdict was rendered for the plaintiff.</p> <p>If the deposition was improperly admitted, a new trial was to be ordered ; otherwise judgment was to be rendered upon the verdict.</p>

Assumpsit for the use and occupation of a farm and farming utensils. At the trial, before Putnam J., the plaintiffs called a witness, who testified that the defendant said, at the time that he occupied the premises, that he occupied the same under Lydia, one of the plaintiffs.

<p>This was an action on the case. The first count alleged, that the plaintiff had a mill site, and that on the 12th of December, 1836, he began to erect and did afterwards erect a mill on such site ; and that the defendants, on the 29th of April, 1837, erected a dam across the Farmington river and flowed back water upon the plaintiff’s mill. The second count alleged, that the defendants, by means of the same dam, flowed the plaintiff’s meadow and injured his grass.</p> <p>At the trial, before Putnam, J., the plaintiff proved, that, on the 12th of December, 1836, he commenced framing mud-sills for an apron to his contemplated mill. The trench for the mud-sills was excavated on the 12th and 13th, and the sills laid therein on the 13th. Two posts were subsequently framed and placed intu the mud-sills, and two pieces of timbei to go from the posts to the bank. The plaintiff’s workman was prevented from proceeding in the work, by water set back by the defendants’ dam, on the 29th of April, 1837. The water was kept up but one day at that time ; there was, however, evidence tending to show, that it was raised by the defendants at different times during the summer, to settle their dam, &c.</p> <p>The plaintiff commenced framing his mill in March, 1S37, and raised it about the 1st of April. He began to dig his race-way from the brook to his mill in September or October, 1837, and finished it about the 1st of December ; and in January, 1838, water was brought into such race-way and the wheel was turned round.</p> <p>It further appeared, that in 1823 or 1824, a dam and saw mill were erected by Isaac Hunter on the site of the defendants’ dam, whereby the plaintiff’s meadow and the ground on which he subsequently erected his mill, were flowed ; that in 1830, on account of the damage done to the plaintiff and others, Isaac Hunter took down his mill and removed it to another water privilege below, and took out all that part of the dam, which was constructed of wood, leaving the stone work and spiling ; that he declared, however, that he had no intention of abandoning the privilege, and forbade his sons from removing the spiling. Isaac Hunter subsequently conveyed his farm to John Hunter, who, on the 17th of November, 1836, conveyed a parcel of the land, including this water privilege, described as such in the deed, to the defendants. On the 30th of the same month the defendants contracted for plank for a dam and flume, and for a frame for a furnace, to be delivered^ on the Hunter privilege by the 5th of April, 1837, and, on the same day, cleared off the site of the furnace, dug into the old log-way, laid monuments for the corners of the building, adopted the old dam as so much done towards their contemplated works, and cleared out the old race-way. They finished their dam on the 29th of April, 1837, raised the frame of the furnace during the month of May, and put it in blast on the 4th of October next ensuing.</p> <p>There was evidence tending to show, that the dam of the defendants was eighteen or twenty inches higher than the old Hunter dam; but the defendants’ witnesses stated, that, ii there was any difference in the height of the dam, it was trifling.</p> <p>The defendants proved, that the plaintiff had declared, that his object in erecting a mill, was to prevent the defendants from flowing his meadow.</p> <p>The defendants contended, that the plaintiff could not recover on the second count, but should be confined to his remedy by complaint under the statute ; that he could not recover on the first count, because the Hunters did not abandon their privilege, and the defendants, possessing their rights, had a right to raise the dam and keep it up through the year, being liable only to damages, to be assessed on complaint under the statute ; but that if the Hunters did abandon their privilege, the defendants still had the priority over the plaintiff, his acts in December, 1836, not amounting to an appropriation of the water, and, therefore, not constituting a beginning to occupy the privilege.</p> <p>The plaintiff contended, that the facts proved, constituted in law an abandonment of the old Hunter dam, and a prior occupation on his part, of his mill privilege ; that if the Hunter dam was abandoned, he had a right to the enjoyment of his mill privilege, because he occupied his mill site before the water was flowed back upon it by the defendants ; and that if the Hunter dam was not abandoned, he bad such right subject only to the user and height of the Hunter dam.</p> <p>The judge instructed the jury, that if they believed that the Hunter dam was not abandoned, the plaintiff’s only remedy was under the mill acts.</p> <p>The jury returned a verdict for the defendants.</p> <p>All questions of law arising upon the report, were reserved for the consideration of the whole Court; and judgment was to be rendered on the verdict, or a new trial granted, as the Court should order.</p>

<p>This was a writ of entry to recover one undivided sixth part of a lot of land in Hancock.</p> <p>At the trial, before Putnam J., it appeared, that in 1835, the demandant and the tenant were tenants in common of the lot in question, which was one of certain mountain lots formerly belonging to John Tryon, deceased, the tenant claiming five sixths, and the demandant, one sixth thereof. The lot immediately adjoining it on the south, was on the 13th of September, 1828, conveyed to the demandant by John T. Shepherd, who held it as one of the heirs of Tryon ; and the demandant conveyed the same to H. C. Babcock, bounding it on the north by some staddles, a known monument still existing. The tenant, in a petition for partition of the north lot, described it as bounding southerly on land of H. C. Babcock, the staddles being described as the southwest corner of the lot, and a stake and stones, as the monument in the southeast cornee, A straight line running from one to the other was proved to be the boundary line of Babcock.</p> <p>The demandant made no defence to the suit for partition, but was defaulted ; and a regular judgment for partition was entered, and the return of the commissioners appointed to make partition was duly accepted and recorded.</p> <p>It appeared, that a probate warrant had been issued for the partition of the estate of Tryon, which was not perfected ; and it was, therefore, ruled out of the case, on the objection of the demandant.</p> <p>The tenant proved, that the commissioners appointed under the probate warrant did, in fact, fix the line between the north and south lots, twenty or thirty rods to the southward of the stud dies. But there never was any actual occupation, nor were any conveyances made between the owners of the two lots, which referred to or recognized such line ; and it was disregarded by Shepherd, who conveyed the southerly lot in severalty, bounding it by the staddles. Those heirs of Tryon, who claimed the north lot, conveyed their shares respectively to the tenant, bounding the lot on Babcock’s line. It was also proved, that the tenant, when his five sixths of the north lot were set off to him, proceeded on the ground that the north lot extended to the line fixed under the probate warrant, and took, as his purparty, all the land north of the Babcock line, (being in fact the whole of the lot owned in common,) leaving the demandant to get his sixth part between the Babcock line and the line fixed under the probate warrant.</p> <p>The tenant contended, that the deed to Babcock was void as against the tenants in common of the lots of which Tryon died seised. He also contended, that it was not competent for the demandant so to disprove and contradict the record of the process of partition, as he had been permitted to do ; but this point was, for the purposes of this trial, overruled by the Court.</p> <p>The demandant contended, that deeds by tenants in common, of their shares in severalty, are at most only voidable ; that if not avoided, and the heirs on one side, or one of them, convey towards the north up to a certain line and the heirs on the other side, or one of them, convey towards the south, up to the same line, then the partition, as between those who so respeclively convey, is effectually established ; and that although the deed of Shepherd to the demandant might be voidable as respected the tenants in common of the north lot, it could not be avoided by the tenant, he being bounded in his deeds on Babcock’s line.</p> <p>A verdict was taken by consent for the demandant.</p> <p>If the Court should be of opinion, that the verdict could not be maintained on the facts stated in the report, it was to be set aside and judgment to be rendered for the tenant; otherwise judgment was to be rendered for the demandant.</p>

<p>In 1741 the legislature granted to individuals a township of land, to be laid out in a certain number of shares, one of which was to be for the ministry. In 1764 the grantees settled their first minister, who was of the congregational order, and who entered upon the ministerial land and occupied it until 1797. In 1796, there being also an unincorporated pvotestant episcopal society in the town, besides some individuals who were baptists, and the congregational society having never organized themselves as a parish, the town, up to that time and for many years after, possejw ing and exercising all the capacities and functions both of a town and a parish, it was voted at a town meeting, that the town would petition the legislature that Llm land might be sold and the proceeds be kept as a fund, and the income divided in certain proportions between the congregational and episcopal societies; and in 1797 the legislature passed a resolve authorizing the sale and distribution and providing for the appointment of trustees, but with a proviso that it should be in the power of the legislature, on the application of any denomination of Christians having a settled minister in the town, thereafter to make a new appropriation of the income. The land was sold, the proceeds placed in the hands of a trustee, and the income applied, agreeably to the resolve. In 1814, upon an application made without any authority from the town, by the ministers of the congregational and episcopal societies and the selectmen of the town, the legislature, without issuing any order of notice to all persons interested, passed a resolve repealing the proviso above mentioned and confirming the appropriation of the income as then already established. The baptists formed a society before the repeal of the proviso and employed ministers to preach a part of the time. The present baptist church was organized and constituted in 1818, and employed ministers to preach a part of the time until 1834, when they had a settled minister to preach the whole time. The episcopal society was incorporated in 1823, and in 1824 the congregational society , organized themselves as the first parish. In 1837 the legislature, upon the application of the baptist society, and after due notice, passed a resolve that a portion of the income should be paid to that society. It was held, that the act of the town and the congregational minister in the sale of the land and disposition of the proceeds and income, and the acquiescence of all persons either legally or beneficially interested in the property, for a period of nearly fifty years, was conclusive evidence of their assent to the resolve of 1797, and of course to the proviso, and that with such assent the resolve was .valid and the power in the proviso well reserved to the legislature ; that the repeal of the proviso, under the circumstances, was neither a renunciation nor a final execution of the power reserved to the legislature, and did not preclude them from exercising the power reserved ; and that the ”esoIve of 1837 was valid.</p>

<p>The plaintiff B was originally the owner of a portion of the north shore of Conneo ticut river and of the bed of the river to the thread of the stream, extending above and below the mills and milt privileges hereafter mentioned. Water power had been created at this place by erecting a pier near the shore and running from it a wing dam into the river, by means of which a portion of the water was turned through guard gates, placed between the pier and the shore, into a reservoir or pond formed by the shore and a side dam parallel thereto, and this pond supplied a stone flume carried down along the shore. In 1826, by an indenture of three parts between the owners of the mills and water power, all the water power became vested in B, the party of the first part, and by the same indenture B grants to C, the party of the second part, the right of drawing and using for the benefit of his oil-mill, or such other mill works or machinery as may be erected or used upon the site thereof, e( from the pond and flumes as now erected and in use, so much water as may pass through the following described gateways now used in said oil-mill, or others of equal capacity, (that is, such as will admit water of equal power,) viz. one gateway of one foot and five inches in length and eight and three fourths inches in height, with six feet and three inches head, (to wit, from the top of the flume to the bottom of the gateway ;) another,” &c., describing, in the same manner, three more gateways ; and to the plaintiffs, H & L, and others, the party of the third part (which others, as also C, have since transferred their rights to H & L), he grants “the right and privilege of drawing and using for the benefit of a paper-mill or such other mill works or machinery as may be erected or used upon the site thereof, from the pond and flumes as now erected and in use, so much water as may pass through” five gateways (described in manner as above) “now used in said paper-mill, or others of equal capacity and B“ reserves and retains to himself the right and privilege of drawing and using for the benefit of his mill works and machinery, near said pond, or any other works which may be erected upon the same site, or near the same, from said pond and flumes as now in use, so much water as may pass through ” twelve gates, (described in manner as above,) three of them, “ or an equivalent, to be drawn from the pond without the stone flume,” and nine of them “ to be drawn from the stone flume and he also reserves and relains “ the right and privilege of erecting and maintaining a sufficient flume, not exceeding eight feet in width of channel, to extend from the shore side of the lower end of the stone flume now built, down the river, for the accommodation of any works which may be erected below said paper-mill; provided however, that the water to be drawn and used through said eight feet flume shall not exceed in quantity, but may be equal to, that which the party of the third part are entítíed to by this indenture. And it is mutually agreed, that the dam, pier, guard gates, stone flume and the general passage of the water into said flume, shall be and remain situated as they now are forever, unless altered by mutual consent of all parties, and to be occupied in common for the purpose of obtaining water and making repairs, without hindrance or interruption from any party. And if there is at any time a deficiency of water, the parties shall respectively be entitled to draw the same only in proportion to the rights and interests above expressed ; and in case there is a surplus, they shall all be entitled to use the same ratio or proportion. And it is mutually agreed by the parties, that they and each of them, are to contribute towards the expenses of maintaining and repairing the dam, pier, guard gates, and other works for keeping up and supporting said pond, (exclusive of stone flume,) in proportion to the water power which they respectively derive therefrom, the proportions to be determined by the capacities of the gateways, it being agreed that the party of the first part is not to contribute any thing towards said expenses on account of his right or privilege of drawing and using water from said stone flume below the said paper mill, until he actually-sells or makes use of the same, unless,” &c. In 1831, B conveys to the defendants a parcel of his land bounded on the river and going to the thread of the stream, (in which were situated the wing dam, pier, guard gates, side dam, upper end of the stone flume and the upper mill site ; “also the right and privilege of drawing and using for the benefit of a paper-mill, or such other mill works or machinery as may be erected or used upon the abose granted premises, so much water from the mill pond on said river upon and above the premises, as is equal to the quantity and power to which ” H & L, &c. are entitled by virtue of the indenture of 1826, “ a part of such water, not exceeding one half, to be drawn from the stone flume, and the residue thereof from the pond above said flume. This grant of privilege of drawing and using water as above, is on condition that the defendants shall contribute towards the expense of maintaining and repairing the dam, pier, guard gates, &c. in proportion, &c. And on condition that said dam, pier, guard gates, stone flume, and the general passage for water into said flume, shall be and remain situated as they now are, forever, unless altered by consent of all parties interested “ making, however, from said sale and grants the following reservations, to wit, I reserve to myself, &c. the right and privilege of drawing and using from said pond over or across the granted premises, by means of said stone flume, the quantity of water or power which I now draw for the use of my grist-mill, and clothier’s shop, and carding machine, and for my privilege below H & L’s paper-mill,” &c. The defendants erected a paper-mill on the mill site granted to them, and built a penstock below the wing dam, in order to increase the supply of water for their works, by -which penstock the water was thrown back upon the wing dam; they also built a wall in the river south of their mill, which was extended down the river by the plaintiffs, and thereby a raceway was made by which the water from the mills, instead of being immediately diffused in the river, passed into it at a place below all the mills.</p> <p>It was held, that the subject matter of the indenture was the whole of the water power created by the artificial works erected for the purpose of applying the stream to mill purposes, consisting of the wing dam, pier, guard gates, side dam and stone flume; and that all the rights of the parties to the indenture, in all the water privilege which was or could be derived by any mode of using these works, depended upon the indenture ; but that any rights which B had, as riparian proprietor, in the unoccupied portion of the river, so far as they could exist and be used without impairing the conventional rights granted by the indenture, remained to him unaffected by the indenture.</p> <p>Held also, that the indenture effected a distribution of the entire water power created by the artificial works, not by a grant or reservation of a specific quantity of water power as measured by the gateways, but by fixing the proportion in which all the parties should use the water power, whether it should exceed or fall short of the aggregate of all the powers particularly specified.</p> <p>Held also, the parties were not restricted by the indenture to the use of the gateways then existing, but that they might respectively change the places of their gates by making new openings into the pond and stone flume, provided they did not weaken or otherwise injure these common works, and that this would not be an alteration in these works, within the meaning of the indenture.</p> <p>Held also, that under the grant to the defendants of the right of drawing so much water as is equal to the quantity and power to which H & L, &c. are entitled by virtue of the indenture, the measure of the water to be drawn by the defendants was the dimensions of the gateways and head of water, without regard to the greater or less fall from the gateways to the bottom of the raceway.</p> <p>Held also, that as against B, the defendants had a right to draw any part of the water granted to them, not exceeding one half, from the stone flume and the residue from the pond; but that as by the indenture B himself was allowed to draw from the pond only a certain quantity of water, (determined by three gates therein specified,) so as against H & L, &c. the defendants could not draw more than that quantity from the pond.</p> <p>Held also, thatfif the defendants opened gateways in their mill capable, in their ordinary action, of drawing a much larger quantity of water from the common reservoir than the defendants were entitled to draw, especially if their gateways were withdrawn from observation, equity would award an injunction compelling them permanently to close a portion of their gateways, leaving such only as would enable them to draw the quantity to which they are entitled ; or, if the defendants’ works were of such a character as to require the alternate action of particular gates, so that when one was open a corresponding one would be closed, then, in order to obtain the right of making a greater capacity of gates than it was intended to use at any one time, it would be incumbent on the defendants to set out such special case, and to give a pledge or security, adapted to the case, so as effectually to protect the rights of the other parties.</p> <p>Held also, that the defendants, as riparian proprietors under the grant from B, acquired a right in the stream without and beyond the wing dam and other artificial works of the proprietors of the mills, and, as such riparian proprietors, might erect any works and make any use of the stream which could be done without interfering with the common works of the proprietors of the mills, but that they had no right to alter those common works ; and that the erection of the penstock higher than the wing dam, so as to throw back the water upon that dam, was an alteration of the common works, and if it caused damage to the plaintiffs, they were entitled to relief.</p> <p>Held also, that the distribution by the indenture, of the mill power created by the common works erected at the time, extended to the enjoyment of the raceway then in use for conducting the water from the mills, and that thenceforth neither party could do any act to render this raceway less beneficial to the other parties j that the defendants had a right to build the wall, on their own land, on the southerly side of their mill, to keep out the waste water of the river, provided it did not injure or impair the rights of the plaintiffs ; and the plaintiffs had a right to continue this wall down the river, if it did not prejudice the defendants ; and, (supposing the wall to be injurious to neither party,) that thenceforth the space between the wall and the shore became the common raceway of the parties, to be used in connexion with their respective water rights as settled by the indenture.</p> <p>Held also, that if the plaintiffs, by their wall, narrowed the raceway, this would not justify the defendants in drawing from their penstock into their mill, and thence into the raceway, a quantity of water in addition to that which was or could be drawn from the common reservoir, and thereby impeding the plaintiffs’ wheels ; not even if the defendants had, by their wall, kept from the plaintiffs’ wheels as large a quantity of back water as the penstock was calculated to throw upon them.</p> <p>The plaintiffs’ bill in equity alleged, that the defendants were entitled to draw from the common reservoir, 12,335 cubic feet per minute, but that they were erecting works which would require, and that they threatened to use, a much larger quantity ; and it prayed for damages and for an injunction to restrain them from using more than 12,335 cubic feet per minute. The defendants’ answer claimed a right to use more than 12,335 cubic feet per minute, but denied that they had used, or intended to use, more than they were entitled to ; and it did not appear that they had drawn so much as 12,335 cubic feet per minute, it was held) that even if the defendants were not entitled to draw so much as that quantity and had in fact drawn more than they were entitled to, yet that under this issue the plaintiffs could not recover damages against them for having drawn too great a quantity, and that an injunction would not lie to restrain them from drawing 12,335 cubic feet per minute.</p>

<p>A deed from a father to his daughter purported to convey to her the fee simple of certain real estate, reserving the use and improvement thereof to the father for his life, and without expressing any other consideration than a pecuniary one. It was held, that although as a deed of bargain and sale of a fee simple commencing in fu~ turo, it could not take effect, yet it was valid as a covenant to stand seised to usee, the law, in such case, presuming a consideration of consanguinity; that the daughter acquired thereby a vested remainder, and not merely a springing use; and that a subsequent recovery in a writ of right by a third person against the father, did not defeat such remainder, the daughter not having been a party to the suit nor privy in estate.</p>

<p>This was an action of debt upon a sealed contract. The trial was before Putnam J.</p> <p>The contract was executed on the 15th of September, 1836, by the plaintiffs of the first part, and the defendants, of seconc¡ part, and contained the following among other stipulations. “ The party of the first part doth hereby agree to make and construct the Agawam Canal, beginning at station No. 6, and running to near the western termination of said canal to the east quarry"of stone,” &c. “ which distance includes the canal heretofore finished by the said party, of the first part, and which is to be deepened six inches and widened on the towing path side eighteen inches by said party of the first part.” “ The party of the first part doth further agree to finish the work on or before the first day of May, 1837.” “ The party of the second part doth further agree to pay to the party of the first part, the sum of twenty cents for each and every cubic yard of excavation, the sum of twenty cents per cubic yard for rock excavation, the sum of twenty cents for each and every cubic yard of embankment. The party of the second part doth further agree to pay seventy-five per cent on the estimates of the engineer, which estimate shall be made monthly, as the work progresses ; and whenever the party of the first part shall have finished the work and present • ed a certificate from the engineer, that the said work is finished and accepted, the party of the second part doth hereby agree to pay the balance which may then be due on this con, tract. The party of the second part doth further agree, whenever the aforesaid estimate and certificate shall be presented, to pay to the party of the first part the additional sum of three hundred dollars to satisfy all losses sustained on work, which certificate bears date September 2d, 1836. And it is further agreed, that if in the opinion of the engineer, the work does not progress so as to insure its completion by the time herein specified, the party of the second part shall have the right to put on as much help as can reasonably be used on said work, at the expense of the party of the first part.”</p> <p>The action was brought to recover for excavating and embanking, according to an estimate of the defendants’ engineer • which included the repairing of damages caused by floods, distinguishing however the number of cubic yards of earth removed in making such repairs.</p> <p>It was proved that the plaintiff* had done all the work cob tamed in the estimate. It was also proved, that before their contract was fully performed, 1000 cubic yards of the embankment made by them were swept away by floods, and that 494 cubic yards of earth were washed in and upon the canal where the plaintiffs had contracted to deepen the same six inches. The plaintiffs sought to recover for the extra labor of repairng the embankment and throwing out the earth which had been washed into the canal by the floods. The defendants had paid for all the work which would have been necessary to be done, to complete the contract, if there had been no flood.</p> <p>The plaintiffs offered to prove, that the defendants verbally promised them to construct a slope wall against the embankment as the work advanced, and that they had been under the necessity of performing the extra labor in consequence of the neglect of the defendants so to do. The defendants objected to the competency of this evidence, on the ground, that it would vary the written contract, which contained no provision for such an accident as had happened. They also contended, that if there were any such parol engagement, the remedy for the breach of it was by a special action upon the case, and that it could not be enforced in an action upon the written contract. The evidence of the verbal promise was rejected.</p> <p>A nonsuit was entered, subject to the opinion of the whole Court.</p>

<p>Assumpsit for expenses incurred in the support of Phebe Saunders, a pauper, whose settlement was alleged by the plaintiffs to be in Chester.</p> <p>On a case stated it appeared, that in order to prove that Henry Leonard, the husband of the pauper, and from whom her settlement was derived, had acquired a settlement in Chester, the plaintiffs offered in evidence an instrument in writing, dated the 14th of February, 1797, whereby the selectmen of Chester, in conformity with a vote of the inhabitants of that town, leased to Jeremiah Curtis, his heirs and assigns, one hundred and twenty acres, by estimation, of their school lands, for the term of nine hundred and ninety-nine years from that date, to have and to hold the same to him, his heirs and assigns, as an absolute estate of inheritance for such term, upon the condition that he, his heirs and assigns, should pay therefor annually, to such selectmen,, six per cent on the sum of $ 120. This lease was assigned to Leonard, who paid to the assignoi the sum of $ 400, for betterments which had been made on the land after the lease was given. Leonard entered upon the land and occupied it from March 9th, 1805, to March 9th, 1813, and then assigned the lease to one Cole, and also quitclaimed the land to Cole, for the sum of $ 600. Leonard was able, during the whole time of his residence in Chester, to pay taxes on such land, but was never taxed therefor.</p>

<p>The plaintiff, having purchased an equity of redemption sold on execution, paid off the mortgage, and the mortgagee, after cancelling the mortgage deed and the note secured thereby, and indorsing on the deed a discharge of the mortgage, delivered them up to the plaintiff, who, upon the payment of the amount for which the equity was sold, released to the mortgager all the right acquired by him under the sale ; and the mortgager subsequently promised to pay the plaintiff the amount due on the mortgage. It was held, that such express promise was valid, although the consideration was past ; that the plaintiff might maintain an action thereon, although by virtue of Revised Stat. c. 73, § 34, 35, he was the equitable assignee of the mortgage and therefore had another security ; and that, as the plaintiff was obliged to pay the mortgage debt in order to secure his equitable interest in the land, he might have recovered the amount if no such promise had been made.</p>

This was an indictment for receiving and aiding in concealing a stolen horse, knowing it to have been stolen. At the trial in the Common Pleas, before Williams J., it appeared that the horse in question was stolen by James Harding, on or about the 30th of October, 1838 ; and there was evidence tending to prove, that, on or about the 31st of Octo* her or 1st of November, the defendants received and aided m concealing the horse.

<p>This was an indictment for larceny.</p> <p>At the trial in the Court of Common Pleas, before Williams J., a witness was introduced on the part of the Commonwealth, who testified, that he was an accomplice in the commission of the crime ; and on his cross-examination, the counsel for the defendant inquired of him whether he had not been promised indemnity from prosecution and a reward in money, if he would become a witness for the Commonwealth.</p> <p>In answer to these inquiries, the witness gave an account ol several interviews between himself, Rodolphus Kingsley, a deputy sheriff, J. Willard, Esq., the magistrate before whom the preliminary examination was had, and others. He also testified,, that Kingsley, on those occasions, bad given him assurances, that he would not be prosecuted, if he would tell all .hat he knew in regard to the transaction in question, and that he should be paid the sum of $¡ 100, if he would tell where certain stolen cloth was, provided that was all he knew about the matter ; and that Willard had also given him similar assurances as to his not being prosecuted.</p> <p>The district attorney, claiming a right to corroborate the testimony of this witness as to all matters about which he had been properly examined," in order to support his general credit, then called Kingsley and Willard as witnesses. They testified to the same assurances and to the circumstances and conversations which took place at the several interviews between them respectively and the accomplice. To this testimony the defendant objected ; but the court overruled the objection and admitted the evidence.</p> <p>The defendant, for the purpose of impeaching the testimony of the accomplice, introduced in evidence a letter from him to the defendant, in which he admitted that his testimony in relation to this case, on a former occasion, was false. To explain this evidence, and to show that the letter had been obtained unfairly, the district attorney asked the witness a variety of questions, in answer to which he stated, among other things, that this letter was part of a correspondence, which had been carried on in prison, after he and the defendant had been confined there. He also stated the means by which the correspondence had been carried on, the situation and relative position of the several rooms, and the arrangement of the prisoners therein at different times, while the correspondence was carried on.</p> <p>The district attorney, in order to corroborate the testimony of the accomplice, for the purpose of supporting his general credit, then called the sheriff and jailer, to prove that the situ ation of the rooms and arrangement of the prisoners therein corresponded with the account given by the accomplice.</p> <p>To the admission of this evidence the defendant objected ; but the court overruled the objection, and the evidence was admitted. \</p> <p>The jury returned a verdict of guilty. The defendant excepted to the rulings of the court. \</p>

<p>Under Revised Stat. c. 107, § 13, a tenant for years may redeem a mortgage made by his lessor.</p> <p>So, it seems, a person having an easement only in land under mortgage, may redeem.</p> <p>Whether an instrument is to be deemed a lease or only an agreement for a lease, depends on the intention of the parties, to be collected from the whole instrument.</p> <p>A contract under seal between S. and B., after setting forth a covenant on the part of S. to complete a certain building then erected, for the manufacture of cotton, and to furnish water power and machinery therefor, by a future day certain, and keep such machinery in repair for one month, proceeds as follows. “ And S. does hereby lease said building to B. for the term of ten years ” from the day before mentioned, “but B. is to have the use of the building &c., after they are completed, free of rent,” from a day anterior to the date of the instrument, until they shall be ready for operation ; “ and B. shall also use said building, free of rent, for the purposes of storing cotton and machinery and making repairs, from the date of this instrument; ” and B. covenants to keep the running machinery in repair after the expiration of one month. B. entered into possession in pursuance of the contract. It was held, that this was a present demise to commence in futuro, and not merely an agreement for a lease.</p> <p>By the demise of a mill, the land on which it stands passes as incident to the demise.</p>

<p>This was a petition for a certiorari to a justice of the peace, who had fined the petitioner for neglecting to appear at a meeting of a militia company, on the 2d of May, 1837, for inspection.</p> <p>At the trial before the justice, the complainant, for the purpose of proving that the petitioner was duly enrolled, produced a paper, headed “Company Roll, May, 1836. Osmyn Bis-nee, Clerk,” and containing a list of names, among which was. the name of the petitioner ; but the paper did not contain the name of any officer of any rank, nor any account of the arms and equipments belonging to each man, excepting that the word “ rifle ” was written against a few of the names.</p> <p>Orren Bisbee, the captain of the company, testified that the paper offered in evidence was the roll of the company, made in May, 1836 ; that at that time, there were no officers in the company excepting himself, who was a lieutenant; and that at the time when the petitioner was warned, his name had been „ , , • enrolled on such paper six months.</p> <p>It appeared from the record of the justice, that no evidence was offered by the complainant to show that there was any clerk belonging to the company when the petitioner was warned.</p> <p>Upon this evidence the petitioner contended, that there was no legal roll of the company ; that there was no proof, that he was duly enrolled as a member ; and that, in order to sustain this complaint, it should be proved that there was a clerk be longing to the company, at the time when he was warned.</p> <p>The justice, however, adjudged the petitioner to be guilty of the charge set forth in the complaint.</p>

<p>A deed of wild land described it, as bounded 66 westerly on the county road, northerly and southerly on land owned by E., and running easterly to Sheldon’s corner, and containing twelve acres and a half, more or less.” It being proved, that Shel* don’s corner was at the easterly termination of the southerly line, it was heldt that the northerly line must also be deemed to extend as far east as Sheldon’s corner, although the lot would thereby be bounded on the north, in part, by the land of H., which was not mentioned in the deed, and although the contents of the lot would, in such case, exceed thirty-nine acres.</p> <p>Parol evidence that the grantor, soon after the conveyance, ran out the easterly line and marked the trees on it, and that the grantees cut trees up to such line, was held to be admissible, in aid of the construction of the deed.</p>

<p>A. mother and her son lived together on a farm belonging to her, the son working on the farm and buying and selling the stock, &c. They subsequently referred “ all their unsettled accounts ” to arbitrators, who awarded, that all the personal property owned between them should be equally divided, that they should pay all the debts, jointly and equally, whether contracted by the one or the other, and that the mother should pay to the son the sum of $ 250. It was held, that the provisions of the award in regard to the division of property and the payment of debts were unauthorized by the submission, that they were connected with and entered into the consideration of the residue of the award, and therefore that the whole award was invalid ; but that if it were binding, the creditors of the son could not, unless it was executed on his part, compel the mother to pay the sum of $ 250, under the trustee process, and leave her to her remedy against the son for the amount for which he was liable, as upon an independent matter awarded to be done by him.</p> <p>It seems, that the rule that one summoned under the trustee process is to be charged as trustee if he leaves it doubtful whether he has goods, effects or credits of the principal defendant, is to be applied only to the case where, upon some part of his answers which he fails to explain, he appears primé facie to have such goods, effects or credits in his hands.</p>

<p>This was a petition to the Court of Common Pleas, (pursuant to Revised Stat. c. 115,) in which the petitioners, Horatio Coomes, Asa Colton and James Bliss, represented that they were the major part in interest of the proprietors of certaus meadow lands in Longmeadow, watered by a small stream which also ran through the lands of William Burt and Dimomd Chandler ; and that it would be beneficial to the lands of the petitioners and all persons concerned, that such stream should be diverted from its present course, “ commencing at the line between the lands of said William Burt and Dimond Chandler, and run thence in a southerly direction near the base of the hill east of said meadow, and parallel or nearly parallel with the same, in a channel easterly of its present channel, through and across the lands of said Chandler, Colton, Bliss and Coomes successively, and intersect its present channel on the land of said Coomes, near the road leading into the meadow so called.” The petitioners assigned as reasons for so diverting the stream, that its present course was through the lower portions of their lands, which were overflowed when the stream was high, and thereby rendered boggy, and that their lands situated on the easterly side of the stream being more elevated than the stream, couid not be watered by it when necessary ; both of which objections to the present channel would be obviated by the alteration proposed. Wherefore the petitioners prayed that commissioners might be appointed to effect such improvements and alterations.</p> <p>At the hearing in the Court of Common Pleas, before Williams J., it was proved, that the lands of the petitioners might be drained by making ditches and channels therein, or otherwise, without diverting the stream from its accustomed course ; that the stream had entered and passed in and out of the meadow of Chandler, in its present channel, for more than twenty years last past, though its intermediate course had been changed within that time ; that the only mode of flowing the lands, proposed by the petitioners, was by changing the course of the stream, so that it would pass out of Chandler’s meadow at a different point from where it had done for more than twenty years.</p> <p>The respondents objected, that in such a case the statute did not authorize the proposed change and improvement to be made. But the judge overruled the objection, and being of opinion, that it would be useful to drain and flow the meadows in question, in the manner proposed, and that the improvements contemplated would be for the general advantage of the proprietors, ordered that the prayer of the petitioners should be granted.</p> <p>The respondents excepted to the ruling of the judge ; ana also to the petition itself, as being void for uncertainty.</p>

<p>This was an action of trespass, for an injury done by a dog to the plaintiff’s sheep. The action was brought upon Revised Stat. c. 58, § 13, which provides “ that every owner or keeper of any dog, shall forfeit to any person injured by such dog, double the amount of the damage sustained by him, to be recovered in an action of trespass.” The declaration contained three counts, the first charging the defendants as owners of the dog, the second describing them as owners and keepers, and the third describing them as keepers.</p> <p>James Shearer, one of the defendants, died before the term of the court at which the trial took place ; and his death was suggested on the record accordingly.</p> <p>At the trial, before Wilde J., the plaintiff offered evidence to prove, that James Shearer, during his life, had acknowledged that the dog belonged to himself and Lewis Shearer, the co-defendant. The defendant objected to this evidence; but the judge admitted it, and instructed the jury, that it was competent evidence to prove, that James Shearer was part-owner of the dog. There was other evidence as to the own* ership of Lewis.</p> <p>The jury returned a verdict for the plaintiff. The defendant excepted to the instructions to the jury.</p>

<p>The Revised Stat. c. 120, § 1, providing that all actions upon judgments rendered in any court, not being a cowt of record, shall be barred unless commenced within six years next after the causes of action shall accrue, applies, as explained by St. 1839, c. 73, to an action upon the judgment of a justice of the peace.</p> <p>This provision is not unconstitutional as impairing the obligation of contracts, since, as it was enacted on the 4th of November, 1835, and did not go into operation until the 1st of May, 1836, the creditor had an opportunity, in the interval, to bring his action on any such judgment, recovered more than six years before the 1st of May, 1836.</p> <p>By the St„ 1839, c. 73, it is enacted, that no action founded upon any judgment rendered by a justice of the peace prior to the 1st of May, 1836, shall be barred by the operation of Revised Stat. c. 120, § 1, “ provided the same shall be commenced within two years from the passage of this act.” It was held, that this proviso did not extend to actions pending when the act was passed, but only to such as should be commenced afterwards.</p>

<p>An assignment of real estate by an insolvent debtor, under St* 1836, c. 238, duly notified in a newspaper as required by that statute, is valid as against an attaching creditor, although not recorded in the registry of deeds.</p>

<p>This was an action against the sheriff of the county of Hampshire, for the default of one of his deputies.</p> <p>The declaration set forth, that the plaintiff, on the 14th of March, 1836, being the owner of a farm, together with a large number of cows and other cattle usually kept by him thereon, entered into an indenture with Warren Button and Alfred Stebbins, whereby the plaintiff, for the consideration therein mentioned, “ demised, granted and to farm let ” unto them, their heirs, &c. the farm in question, with the buildings thereon, reserving, however, for his own use, certain rooms, “ the privilege of baking in the oven, half of the buttery, half of the meal room and half of the cellar, with the privilege of passing through the kitchen for the above purposes, also the privilege of washing in the back-room, and half the wood-house and corn-house,” habendum for the term of one year from the 1st of April then next ; and that Button and Stebbins, on their part, covenanted and agreed to work the farm in a good and husbandlike manner, to do and perform all the labor necessary to be done on the farm, to furnish one half of the seed necessary to be sown on the premises and one half of the salt necessary to be used in the dairy and to be given to the stock, to cut down and fit for the fire so much wood as should be necessary for the plaintiff and for one fire for themselves, the wood to be taken from such part of the lot as the plaintiff should direct. The declaration further set forth, that it was provided, in such contract, that the plaintiff should furnish two yoke of oxen to be worked on the farm, twelve cows and heifers for the dairy, one bull, fourteen sheep, &c. ; that Button and Stebbins should furnish one cow and as many young creatures and sheep as the plaintiff furnished ; that the product of the cows should be equally divided between the parties, each party having the proceeds of their own sheep and horses ; that the plaintiff should furnish certain farming utensils to be used on the farm and kept in repair by Button and Stebbins ; that the winter dung at both barns, with certain exceptions, should be put on the grass-land at the plaintiff’s direction, and the other manure be put on the plough-land ; that Button and Stebbins should sow as much winter-rye as was then growing on the farm, thresh the grain in December, and divide it by measure, and also the corn and the potatoes, and deposit the plaintiff’s portion in the granary and cellar ; that they should tend the garden in due season and plant the plaintiff’s half as he should direct, each party sharing equally in the produce ; that the hay and fodder should all be fed out on the farm ; that Button and Stebbins should leave as much wood at the door as was there when they came into possession and in like order ; and that the calves should be half raised, if suitable and promising for that purpose, and the other half vealed.</p> <p>The declaration then averred, that the plaintiff had performed his part of the contract, and that he had good right to have all the hay and fodder produced by the farm during the term, fed out and consumed thereon, and to have at least one half of the calves, if suitable and promising, raised and kept on the farm during the term, to be equally divided between the parties at the expiration thereof; that all the hay raised upon the farm and being thereon, at the time when the defendant committed the acts and grievances complained of, was not more than sufficient for the support of the cattle, sheep and horses of the plaintiff, mentioned in the writing obligatory, during the residue of the term ; that five calves, being less than one half the product of the plaintiff’s cows during the term, suitable and promising to be raised, were upon the farm when the defendant committed the acts complained of, yet that the defendant, well knowing the premises, On the 24th of December, 1836, and at divers other times &c., by the hands of Samuel Phelps, one of his deputies, unlawfully seised and carried away from the farm thirty tons of hay, and converted the same to his own use, by reason whereof the plaintiff had been compelled to purchase great quantities of hay and other provisions for the sustenance of his cattle, and also seised and converted to his own use, five calves, being the offspring of the plaintiff’s cows, within the term mentioned in the contract, which calves the plaintiff had a right to have divided equally at the expiration of such term.</p> <p>The defendant filed a brief statement, setting forth that the hay and one half of the calves were the property of Button and Stebbins, and as such were attached by his deputy on writs sued out by some of their creditors, and were afterwards sold and the proceeds applied in satisfaction of executions obtained by such creditors.</p> <p>It was agreed by the parties, that Button and Stebbins entered upon the farm, and remained there until the hay and calves were attached.</p>

<p>This was an action of covenant broken, founded upon the alleged breach of a covenant against incumbrances, which was contained in a deed from the defendant to the plaintiff, dated the 2d of September, 1836.</p> <p>By an agreed statement of facts it appeared, that the defendant derived his title to the premises conveyed to the plaintiff, by a deed from Rodolphus Anderson ; that Anderson, at the time of his conveyance to the defendant, had a wife, who was still living at the time when the present action was commenced, and had not then released her dower in the granted premises ; that Anderson and his wife, on the 17th of August, 1837, jointly executed a deed of release of her right of dower to the plaintiff, for the consideration of one dollar paid by him ; and that the plaintiff had never been disturbed in his possession of the premises.</p> <p>If the Court should be of opinion, that the action could not be maintained, the plaintiff was to become nonsuit; otherwise judgment was to be entered in his favor, and damages assessed at one dollar.</p>

<p>The separate property of each member of a copartnership is liable to be attached foi the debts due from the copartnership ; and having been thus attached, the lien ac* quired is not to be defeated by a subsequent attachment by his separate creditor, or by an assignment under St. 1836, c. 238. Aliter in the case of an assignment under St. 1838, c. 163.</p>

<p>If several chattels are sold together, for one gross sum, which is paid by the vendee, and a part of them is delivered, but the vendor refuses to deliver the rest, the vendee cannot, if he retain such as were delivered, recover back any portion of the purchase money, in an action for money paid, or money had and received; but his remedy is upon the special contract, for damages.</p>

<p>This was a bill in equity against the Hampshire and Hampden Canal Company, the New Haven and Northampton Company, and Samuel Hinckley. The bill sets forth, that long before January 1, 1827, and ever since, the plaintiffs were and have been the owners of water privileges and mills in South-wick, which were supplied with water by Two Mile brook, the outlet of South wick ponds ; that prior to that day the Hampshire and Hampden Canal Company, acting under their charter, entered upon the land adjoining to the plaintiffs’ works, and proceeded to locate their canal through the most northerly of the ponds, and to erect a dam across the outlet of the same, in order to secure and use the water of the ponds for the purpose of supplying the canal; that such location was confirmed by the county commissioners of Hampshire, on the 24th of April, 1827 ; that by the erection of such dam. the water that used to flow in the brook had been almost entirely diverted therefrom, and the mill sites and works had been rendered of little or no value; that the plaintiffs instituted proceedings for the assessment of the damages, in the manner provided by the act incorporating such company; that at a meeting of the county commissioners in September, 1836, the report of the canal commissioners, awarding to the plaintiffs the sum of $1416, for the damages sustained by them, was accepted by the county commissioners, and ordered to be recorded ; that the company had refused to pay the same ; that the plaintiffs were utterly unable to obtain any redress or compensation for the injury sustained by them, inasmuch as long before the acceptance of the report the company had become deeply insolvent, and on the 3d of October, 1834, its franchise was sold, according to law, for the sum of $ 3000, to Hinckley, for the term of 999 years, for the payment of its debts ; that the reversionary interest of the company therein was therefore of no value whatever, and the company had no other property or means whereby the claims of the plaintiffs could be satisfied ; that Hinckley refuses to make any allowance or payment to the plaintiffs on this account, although fully apprized of the facts before mentioned ; that afterwards, on the 9th of April, 1836, and, as the plaintiffs are informed and believe, in pursuance of an arrangement entered into between the company and Hinckley and others, an act was passed by the legislature, whereby the company were authorized to transfer their franchise and all their property to a new corporation, to be called the New Haven and Northampton Company, consisting of Hinckley and other persons, upon certain conditions and terms therein specified ; that the only provision made by such act for the satisfying of any claims for damages already sustained by reason of the acts of the Hampshire and Hampden Canal Company, is the privilege of receiving the amount of such claims in stock of the New Haven and Northampton Company, at a price fixed by such act, which is much greater than the sum for which the stock can be sold or is worth, such stock being of very little value ; that, afterwards, the Hampshire and Hampden Canal Company, as the plaintiffs were informed and believed, in pursuance of the provisions of the last mentioned statute, transferred their franchise and all their property to the New Haven and Northampton Company, but when and upon what terms, the plaintiffs are unable to state ; that the New Haven and Northampton Company have refused to make any compensation to the plaintiffs, except by offering to them the privilege of subscribing to the stock of such company the amount of damages awarded to them, in the manner before mentioned.</p> <p>The plaintiffs further aver, that by these acts of the defendants, the plaintiffs’ property has been taken from them without their consent, and appropriated to an alleged public use with out their recovering or being able to obtain a reasonable compensation therefor, contrary to the express provisions of the constitution of this Commonwealth, and against those principles of equity and right, which are recognized as fundamental by all wise and just governments.</p> <p>The prayer of the bill is, that Hinckley and the two com panies, or some of them, may be decreed to make to the plaintiffs full satisfaction for the several injuries by them sustained, and in the mean time, be required to remove the dam ; that if the defendants shall refuse to make such compensation to the plaintiffs within some reasonable time to be designated by the Court, a perpetual injunction may issue against the further maintenance of the dam, and the defendants be decreed to make meet compensation to the plaintiffs for the injuries already sustained by them by reason of the premises; and that the plaintiffs may have such other and further relief as they shall be found entitled to, in law and equity.</p>

<p>Two insolvent debtors, partners, make an assignment, in which, in consideration of their being indebted and <c of their wish to apply the avails of their properly fairly in discharging their debts, according to St. 1836, c. 238,” they transfer to assignees “ all and singular the real estate, including a pew owned by one of the assignors, the goods, chattels, rights, claims, debts, dues and demands of every kind and description not exempted by law from attachment, however described and wherever situate, or from whomsoever due,” in trust for the payment of their creditors who should become parties, without preference, pursuant to the statute ; and it is stipulated, that "a schedule of said property, debts, &c. is to be prepared and made a part of this instrument when completed93 ; and the debtors make oath that they have,66 by the within assignment, conveyed all their property not exempted by law from attachment, for the benefit of all their creditors, according to the true intent and meaning of the statute”; but simultaneously with the assignment the owner of the pew gave a deed of it to the assignees, for the purposes of the assignment. The assignment was executed by the assignors and the assignees only, when a creditor of the partnership attached the property in the hands of the assignees, by a trustee process, and soon afterwards the scneduie was annexed to the assignment. It was held, that the description of the property assigned was suffi eiently definite ; that the annexation of the schedule was -not a condition precedent to the operation of the conveyance ; that a clause authorizing the assignees to finish and prepare for market, goods in the process of manufacture, was not inconsistent with the statute, and did no.t invalidate the assignment; that the language of the assignment and of the oath, was comprehensive enough to include all the individual as well as the partnership property ; that if the oath were false, this would not impair the right of the assignees to hold the property for the benefit of the creditors, though it might deprive the debtors of the right to a discharge under the statute ; that if a note were made by the assignors to the assignees in fraud of the creditors, it would not defeat the assignment, but the creditors would be entitled to have the trusft fund administered according to the statute, and the time to object to the fraudulent note would be when the respective claims of the several creditors should be brought forward with a view to the distribution of the assets in the hands of the assignees ; and consequently that the assignees were not chargeable on the trustee process.</p>

<p>The purchaser of spirituous liquor sold in violation of S'/. 1838, c. 157, § 1, does raot, under the ordinary circumstances, subject himself to any penalty, either at common law, as inducing the seller to commit a misdemeanor, or under the statute, and ma; therefore be compelled by imprisonment to testify as to such sale.</p>

<p>A will contained the following clause: “ I will, firstly, that loth to offend by the word pay, the generous feelings of my friends, whose kindnesses to me have been many and long continued, — to H and his wife, I wish their acceptance of twenty-five acres of land," &c. The-testatrix was living in the family of H at the time. It was held, that this was a conditional devise ; that H, by bringing an action against her executor for her board, in which however judgment was recovered against him, elected to relinquish the benefit of the devise; but that he did not thereby forfeit his claim to an independent residuary legacy to his wife, in the same will, the implied condition being limited to the devise of the land.</p> <p>A husband may maintain an action in his own right, after the death of his wife, fora legacy given to her during the coverture.</p>

Assumpsit on the following contract in writing, which was signed by Joel and John S. Drury, the defendants. 6‘ This may certify, that I, Baxter Swan, have sold my home farm where I now live, this the… Held: that parol declarations made previously to the time of the tender, would not amount to a waiver, unless, taken in connexion with what then took place, the whole evidence proved that the defendants intended at that time to waive such exception.

<p>This was an action of covenant.</p> <p>The trial was before Shaw C. J.</p> <p>The action was founded on a covenant in a deed from the defendant to Hiram Newell, dated April 21, 1831, conveying to Newell a tract of land in Charlton, “ with the incumbrance on a mortgage deed to Salem Towne for the payment of $ 500.” The covenants in the deed were as follows ; “I do, for myself,” &c. “ covenant with the said Hiram Newell, his heirs and assigns, that I am lawfully seised in fee of the aforegranted premises, that they are free of all incumbrances except the mortgage deed to Salem Towne, above mentioned, that 1 have good right to sell and convey the same to the said Hiram Newell, that I will warrant and defend the same to the said Newell, except as aforesaid, his heirs and assigns, forever, against the lawful claims and demands of all persons.”</p> <p>On the 20th of April, 1833, Newell conveyed to Calvin Cooper and Calvin Cooper junior, the same premises, described as a tract of land “incumbered with a mortgage given by Artemas Knowlton to Salem Towne, on which mortgage, at the first day of April current, there was due the sum of $400;” and on the 11th of November, 1833, the Coopers conveyed the premises to the plaintiff, “ with the incumbrance on a mortgage deed to Salem Towne, for the payment of $ 400.” The deeds from Newell to the Coopers and from the Coopers to the plaintiff, contained covenants similar to those in the deed from the defendant to Newell.</p> <p>The plaintiff produced in evidence a promissory note for $700, dated March 2, 1820, made by Knowlton, payable to Towne in one year, with interest annually, and a mortgage deed of the same premises, for securing the payment of the note. It was also proved, that Towne commenced an action on the mortgage against the plaintiff, and having recovered a conditional judgment in December, 1834, took out a writ of habere facias, and that thereupon the plaintiff paid off and discharged the mortgage, the amount thus paid being much larger than the sum of $ 500.</p> <p>The plaintiff sought, by this action, to recover an indemnity for all money which he had been obliged to pay to redeem the land from the mortgage, over and above the sum of $ 500, with the interest thereon from the time of such covenants, including the sum of $ 100, principal, and about $ 60 interest, alleged to have been paid by Newell after the land was conveyed to him and before he conveyed it to the Coopers.</p> <p>It was agreed, for the purposes of this action, that the mortgage of Knowlton to Towne, above mentioned, was outstanding at the time of the conveyance by the defendant to Newell; that there was no other mortgage on the estate, at that time, to Towne ; and that there was a much larger sum than $ 500 then due on such mortgage.</p> <p>The plaintiff contended, that, by the true construction of the defendant’s deed to Newell, he covenanted, that there was no incumbí anee on the estate except the mortgage to Towne, and that he would warrant the estate against any incumbrance by mortgage to Towne, exceeding the sum of $ 500 ; and that as Towne had recovered against the plaintiff upon a larger mortgage, the plaintiff had a remedy against the defendant for the excess.</p> <p>The defendant contended, that the mortgage of Knowiton to Towne was wholly excepted from the covenants, although more than the sum of $ 500 was due upon it; that no action would lie by the plaintiff, as assignee, upon the covenant against incumbrances, because it was broken when it was made, and could not be assigned, nor upon the covenant of warranty, because the plaintiff, if evicted at all, was, evicted by force of a prior mortgage, which had been wholly excepted out of the operation of that covenant.</p> <p>The judge proposed to instruct the jury, that the plaintiff, upon these facts, had a right to recover. The cause was thereupon, by consent, withdrawn from the jury, and it was agreed, that the plaintiff should be nonsuited or the defendant defaulted, according to the opinion of the whole Court upon these facts. If the Court should be of opinion, that the plaintiff was entitled to recover, the damages were to be assessed by an auditor, upon such principles as the Court should direct.</p>

Trespass quart clausum fregit. The declaration alleges, that Benjamin Goodridge, the defendant’s intestate, on the 1st of November, 1831, broke and entered the plaintiff’s close, situate, &c., having never given notice in writing to the plaintiff, that he had occasion for and should improve such lot of land held in common by the intestate and the plaintiff, and did then and there cut down a quantity of hoop poles of the value' of $23-80, contrary to the form of the statute…

On a case stated it appeared, that this was an action of debt to recover a fine of 75 dollars imposed upon the defendant by the sentence of a court-martial.

<p>This was a bill in equity setting forth, that in September 1819, Joshua Harrington was duly appointed guardian of Katharine and Oliver Kimball, then minors under the age of fourteen years, and accepted that trust; that the complainant and Cyrus Leland, father of the respondents, became sureties upon his guardianship bond, which was in the penal sum of $10,000; that in January 1837, upon the settlement of his account of the guardianship of Katharine Kimball, in the probate office, there was a balance remaining in his hands amountng to the sum of $2378 '73, which was then duly demanded of him ; that on the 1st of November, 1838, the complainant, as such surety, was required to pay and did pay this sum, with the interest thereon, to Rejoice Newton Esq. to whom it had been assigned in trust for Katharine Kimball; that upon the settlement of Harrington’s account of the guardianship of Oliver Kimball, on the 4th of December, 1838, there was found to be a balance in his hands amounting to the sum of $ 1769'47, which the complainant was afterwards, as such surety, required to pay and did pay to Oliver Kimball ; and that Harrington had never paid any part of such sums, but, on the contrary, had become insolvent and wholly unable to pay the same. The bill further set forth, that Cyrus Leland died on or about the 10th of September, 1830, leaving a large estate, real and personal, which was much more than sufficient to pay the several sums before mentioned, and which descended to the respondents, his children; that, afterwards, on the 1st of November, 1830, Thaddeus Read being duly appointed administrator of such estate, gave bond for the due execution thereof, and gave notice of such appointment as required by law ; that more than four years elapsed after the appointment of Read as administrator and after giving such bond and notice, before Harrington settled either of his guardianship accounts, and before the right to recover either of the sums so paid, accrued to the complainant.</p> <p>Wherefore and because the complainant had not a plain and adequate remedy at law, and because the respondents were liable with the complainant, for the sums of money so paid, and there was more than one person liable to contribute to the complainant, towards the payment thereof, the bill prayed, that the respondents might be held to answer thereunto, that the Court might decree that the respondents should pay to the complainant one half of the sums so paid by him with interest, and might pass such other orders and decrees in the premises as equity should require.</p>

<p>The decree of a judge of probate, appointing a special administrator on the estate of a person deceased in which such judge is interested, is void</p>

<p>Where a note was given by a son for money received by him of his father, it was keld9 under Revised Stat. c. 61, § 9, that oral testimony was inadmissible to prove that the money so received was an advancement.</p>

<p>Assumpsit on a promissory note, for the sum of $37, dated November 21, 1835, given by the defendant to the plaintiff, and payable on demand with interest.</p> <p>The trial was in the Court of Common Pleas, before Williams J.</p> <p>The defendant contended, that the note was obtained by fraud, and, in support of this ground of defence, he offered evidence tending to show, that the note was given in consideration of an exchange of horses between the parties ; and that, at the time of making the bargain, the plaintiff represented the horse which he gave in exchange to the defendant, to be sound; but that this horse proved to be incurably foundered and of little or no value. There was no evidence, that the defendant ever returned the horse which was received in exchange by him, or that he tendered or offered to return him to the plaintiff, or that he gave notice to the plaintiff, in any way, that he wished to rescind the contract.</p> <p>The evidence offered by the defendant was submitted to the jury.</p> <p>The jury were instructed, (among other things,) that if the horse received in exchange by the defendant was of any value, the defendant was bound, in order to avail himself of this defence, to return or tender the horse to the plaintiff, within a reasonable time, or to notify to the plaintiff his intention to rescind the contract; but that if the jury were satisfied, that the horse was of no value, such return or tender was unnecessary.</p> <p>The jury returned a verdict for the plaintiff; and the defendant excepted to the instructions of the court.</p>

<p>By an indenture of two parts the defendants lease to the plaintiffs a woollen factory, reserving to themselves the right to erect a machine shop near the factory, and the right to connect the machinery in the shop with the wheel in the factory ; “ and in case there shall not, at any time, be water sufficient to carry the works if the factory and machine shop together, the lessors are to connect their works with the wheel of the factory so as to use only so much water as is sufficient to carry the wheel of the factory at speed.” Held, that the lessees were entitled to draw water enough to drive the machinery of the factory at speed, before the lessors could exercise their reserved right of connecting the machinery of their shop with the wheel of the factory.</p> <p>Held also, that in case the lessors should connect their machinery with the factory wheel so as to overload the wheel and prevent it from running at speed, they would not be liable on the indenture, for damages, without notice from the lessees that the wheel was so retarded, this being a fact within the knowledge of the lessees and not of the lessors.</p>

<p>This was a bill in equity to redeem mortgaged real estate.</p> <p>The bill set forth, that the complainant, on the 4th of March, 1834, being seised in fee of certain land in Lunenburg, called the Austin farm, mortgaged the same to Esek Whiting, to secure the payment of the sum of $250 in sixty days with interest; that on the 17th of August, 1835, Whiting assigned the mortgage to the defendant; that the defendant, on the same day, entered into possession of the premises for breach of the condition, and still continued in possession ; that on the 13th of October, 1836, the complainant demanded of the defendant an account of the amount due on the mortgage, but the defendant refused to render the same ; and that, at the time when such demand was made, the complainant had good right to re deem the premises.</p> <p>The answer denied that the complainant had any right to re ■ deem the premises, and averred that the complainant’s equity of redemption had been taken on execution, and sold, upon the 10th of May, 1834, to Caleb B. Hall; that the complainant, on the 13th of September, 1834, conveyed all his right, title and interest in the premises to William Lincoln, who, on the 6th of May, 1835, quitclaimed to the defendant; and that on the 8th of May, 1835, Hall conveyed all his right and title to the defendant.</p> <p>A supplemental bill was thereupon filed, setting forth, that, on the 13th of September, 1834, the complainant, for the sum of $ 56, conveyed to Lincoln the Austin farm, together with other real estate, including a farm called the Cunningham farm ; that the interest of the complainant in the real estate so conveyed, after paying off all incumbrances thereon, was of the value of $ 3000, at the time of the conveyance ; that on the. same day, Lincoln, by a memorandum in writing but not under seal, agreed, that if the complainant would pay him the sum of $ 56 within ten days from that time, he would, by a quitclaim deed, reconvey the land to him ; that on the 6th of May, 1835, Lincoln, in consideration of the sum of $ 100 paid him by the defendant, quitclaimed to him all his interest in such real estate, and, on the same day, took from the defendant a bond in the penal sum of $ 1000, conditioned, that if the defendant should, within thirty days after the payment by the complainant to the defendant of the sum of $¡ 100, with interest, quitclaim to him all his interest in the Cunningham farm, then the obligation should be void.</p> <p>The supplemental bill further set forth, that the defendant well knew that Lincoln held the deed from the complainant in trust for the benefit of the complainant and as security for the sum of $ 56 above mentioned, and a further sum of $ 44 paid by Lincoln for the complainant, and that the sum of $ 100 was all the complainant had ever received from Lincoln on account of the real estate so conveyed to Lincoln ; that upon the application of the defendant to Lincoln, it was agreed between them, that the defendant should take a deed from Lincoln of his right in such real estate, to hold in trust for the benefit of the complainant, and as security for such sums as the defendant might pay for the complainant, to redeem the estates, and that the complainant should have the right to redeem the same by paying to the defendant, within thirty days from the 6th of May, 1835, the sum of $ 100, and such further sum as the defendant might pay to Hall for his right to redeem the Austin farm ; and that without the knowledge and consent of the complainant, and by the mistake or misapprehension of Lincoln, founded on the misrepresentations of the defendant to him, the Austin farm was omitted to be mentioned in the condition of the bond, and the right of the complainant to redeem the same was not secured thereby, as it ought to have been. Wherefore the complainant prayed, that he might be allowed to redeem the Austin farm on payment of the amount due to the defendant, and for such further relief as the equity of his case might require.</p> <p>The answer to the supplemental bill denied that the defendant knew, at the time when Lincoln conveyed to him all his inter est in the Austin farm, that Lincoln held such deed, so far as it related to that farm, in trust for the benefit of the complainant, or that Lincoln had obligated himself to the complainant by any writing whatever. The answer further averred, among other things, that, neither at the time when Lincoln conveyed the Austin farm to the defendant, nor at any other time, was il agreed between them, that the defendant should take a deed from Lincoln of his right to the Austin farm, to hold in trust for the benefit of the complainant and as security for any sum of money whatever, and that the complainant should have the right to redeem that farm upon any condition ; that it was not from any misrepresentation or act of the defendant, that the Austin farm and the right of the complainant to redeem the same, were omitted to be mentioned in the condition of the bond; and that the defendant never gave to Lincoln or the complainant any promise, either in writing or under seal or otherwise, that he would convey the Austin farm to them, upon any condition whatsoever.</p> <p>The case was argued in writing.</p>

<p>This was an action of debt upon a judgment recovered by the plaintiff against Henry Eddy and William Denny, the defendants, in the Court of Common Pleas, in September, 1817. In- the present action Denny was defaulted. Eddy relied on the statute of limitations.</p> <p>By an agreed statement of facts it appeared, that the judgment was founded on a promissory note given to the plaintiff by Eddy, as principal, and Denny as surety ; and that on the 2d of June, 1820, the sum of $ 130 was paid on the judgment by Denny without the knowledge of Eddy.</p> <p>It also appeared, that in August, 1837, Eddy, in conversation with the plaintiff, said to him, that if he would not sue him before the first day of September then next, he should have the same rights thereafter on such judgment, which he then had; at the same time saying, that he, Eddy, had paid the judgment.</p> <p>Judgment was to be rendered upon these facts, for the plaintiff or for the defendants, according to the opinion of the Court.</p>

<p>Trover for the value of a wagon.</p> <p>The trial was in the Court of Common Pleas, before Strong J.</p> <p>It appeared, that in the spring of 1836, Potter & Allen, who were the original owners of the wagon, sold it to Roderick Shewbrooks, upon the condition that Shewbrooks should take it and use it, and whenever he should pay the sum of $ 80, the wagon should become his property, but that if he did not pay for it, he should pay for the use of it; that no time of payment was agreed upon ; that the wagon was accordingly delivered to Shewbrooks and used by him ; that in August of the same year, Potter demanded payment for the wagon ; that Shewbrooks being unable to pay the whole of the purchase money, Potter requested him to pay the sum of $ 20, which was accordingly done ; that the sum so paid was less than the worth of the use of the wagon by Shewbrooks before that time ; and that, subsequently, on the 10th of November, 1836, the wagon was attached as the property of Shewbrooks, by the defendant, who was a deputy sheriff.</p> <p>It further appeared, that on November 18, 1836, Potter 8i Allen assigned all their property to the plaintiffs, for the benefit of their creditors, but that it was not specified in the deed of assignment or in any schedule exhibited, that the wagon was assigned with the rest of the property ; that immediately on the execution of the deed of assignment, actual possession was delivered to the plaintiffs, of the property of Potter & Allen, so far as it could be conveniently reached ; but that the wagon, being at a distant place, in the custody of the defendant who had attached it, no delivery of that was made, except by the delivery, generally, of the property embraced in the assignment ; that no demand of the wagon had ever been made either on Shewbrooks or the defendant; and that several days after the execution and delivery of the deed of assignment, the defendant sold the wagon as the property of Shewbrooks, upon an execution issued against him.</p> <p>The defendant contended, among other things, that there was not such a delivery proved as would enable the plaintiffs to maintain trover; that Shewbrooks had the exclusive right of possession by the contract, until it was rescinded by a demand of the wagon ; that the demand of payment by Potter was not such a rescinding of the contract; and that the taking by the defendant was not tortious against the plaintiffs or their assignors, as Shewbrooks’s right of possession continued at the time of the attachment, either as lessee or conditional pur chaser.</p> <p>The plaintiffs contended, that they had the right of possession of the wagon, at the time of the sale on execution, and that this action could be maintained although they never had actual possession.</p> <p>The judge ruled, that no demand of the wagon, either upon Shewbrooks or the defendant, was necessary to maintain the action, the sale by the defendant being a conversion ; that the right of property passed by the assignment ; that the right of possession was made absolute by the demand of payment made by Potter, and also passed by the assignment ; and that no delivery was necessary, as against a tortfeasor, or if it was, that the delivery was sufficient.</p> <p>A verdict was returned for the plaintiffs by agreement; and the defendant excepted to the ruling of the judge.</p>

<p>This was a real action brought to recover an undivided moiety of a tract of woodland containing about ten acres, lying partly in Sterling and partly in Lancaster.</p> <p>The trial was before Shaw C. J.</p> <p>The demandant claimed title under an attachment of the land as the property of John W. Buttrick, made on the 31st of January, 1837, and the subsequent extent of his execution. It was admitted, that the judgment recovered by the demand-ant against J. W. Buttrick was founded upon two notes, one given to the demandant for his own use, and the other, payable to John Buttrick or his order; that the last note was indorsed by John Buttrick to the demandant on the day when the suit was commenced, without consideration, for the purpose of enabling the demandant to sue on both notes ; and that if the de mandant recovered, he would be a trustee for John Buttrick, for such proportion of the land as John Buttrick’s debt bore to that of the demandant.</p> <p>The tenant claimed title to the land under a deed of warranty from J. W. Buttrick and Josiah Wilder, who were tenants in common thereof, in equal shares. The deed was executed on the 20th of November, 1835, but was not recorded until the 28th of February, 1838. J. W. Buttrick was a minor when the deed was executed, and Wilder, of full age. J. W. Buttrick did not come of age until November or December, 1836 ; and on the 25th of February, 1837, he executed a quitclaim deed of the premises to Wilder, which was relied upon by the tenant as a deed of confirmation, the premises being described as subject to the prior conveyance to the tenant.</p> <p>The tenant then offered evidence for the purpose of proving, that the demandant, at the time of his attachment, had actual or constructive notice of the prior conveyance by J. W. Buttrick and Wilder, to the tenant, although the deed was not recorded. This evidence tended to prove, among other things, that the tenant began to cut wood on the land in question, in the winter of 1835 and 1836, and of 1836 and 1837 ; that none of the land was converted into tillage land; that it was cut mostly clean, but that some large, scattering trees were left standing ; that there was a fence between this woodland and the tenant’s cleared land adjoining ; and that the land lay back a considerable distance from the main road.</p> <p>Richard Hildreth testified, that he had had some conversation with John Buttrick upon the subject matter of the action. The demandant thereupon objected to any evidence of admissions made by John Buttrick. The judge ruled, that in the relation that John Buttrick stood to this title, his admissions and declarations, made before the indorsement of his note and the commencement of the action, were not admissible to affect the legal title of the demandant.</p> <p>The judge proposed to instruct the jury, that if J. W. But-trick was a minor when he joined with Wilder in the deed to the tenant, and if the demandant’s attachment was made previously to the execution of the quitclaim deed to Wilder, the attachment would hold, whether the deed from Wilder and J W. Buttrick to the tenant was recorded or not, and whether the demandant had notice of the execution of such deed or not.</p> <p>The judge also expressed an opinion, that as the land in question was open and uninclosed land, and as the tenant was owner of one undivided moiety thereof, as tenant in common, the evidence produced would not be sufficient to warrant the jury in finding, that the demandant had such notice of the prior unregistered deed, as to preclude him from availing himself of his attachment made before such deed was recorded.</p> <p>A verdict was taken for the demandant, by consent; and the several points reserved were submitted to the consideration of the whole Court. If the Court should be of opinion, that, upon the deeds, the tenant had the better title, and that, upon the foregoing evidence, it would be competent for a jury to find that the demandant, at the time of his attachment, had such notice as would preclude him from availing himself of bis attachment against a prior unregistered deed, then the verdict was to be set aside and a new trial granted ; otherwise judgment was to be entered on the verdict, for the demandant.</p>

<p>Debt upon a bond, dated June 15th, 1835, given by the defendants to the plaintiffs, and assigned, in December, 1836, to Amos Davis, for whose benefit the action was brought.</p> <p>The trial was before Shaw C. J.</p> <p>The defendants alleged that the bond was obtained from them by means of fraudulent representations ; and in support of this defence, they offered the testimony of Levi A. Dowley, by which it appeared, that on the 23d of May, 1835, the plaintiffs and Thomas Wentworth had an interview with the defendant Burt, Francis T. Merrick and the witness, relative to the sale of a township of land in Maine, at which interview certain representations as to the quantity and quality of the timber on the land, were made both by the plaintiffs and by Wentworth ; and that an indenture was thereupon executed by Wheelock, one of the plaintiffs, and Wentworth, of the first part, and Burt and Dowley of the second part.</p> <p>It appeared, that by this indenture, Wheelock and Went-worth agreed to sell two thirds of the township in question, to Burt, Merrick and Dowley, to make over to them two thirds of a contract, then in force, with Asa Babcock & Co. for the stumpage upon the west half of the township, and to guaranty to them, that the township contained eighty million feet of good pine and three good navigable streams ; and Burt and Dowley agreed to pay therefor, at the rate of six dollars per acre, by instalments, in cash and notes, and to give a mortgage upon the premises as security for the payment of the notes.</p> <p>The plaintiffs objected to the competency of any evidence of oral declarations made by them or by Wentworth, before the execution of the indenture, in relation to the subjects embraced therein, because all such representations were superseded thereby ; and, also, to the admissibility of any declarations made after such contract was entered into, because it was not competent to vary its terms or control its effect by parol testimony.</p> <p>The judge admitted the parol evidence, it being offered for the purpose of proving fraud and establishing the fact, that the execution of the indenture formed a part of a plan of deception by which the defendants were led to enter into a contract hereafter mentioned.</p> <p>It was then testified, that the plaintiffs and Wentworth represented, among other things, that there were more than one hundred millions of feet of good sound pine on the township.</p> <p>It appeared, tnat on the 10th of June, 1835, after the contract was executed, and before any exploration of the township was made, Dowley, for himself and as agent of Merrick, assigned and released to Wentworth all their title and interest in such contract, being one undivided half of all the benefits secured thereby to the parties of the second part, and was himself discharged by Wentworth from the same.</p> <p>On the 3d of July, 1835, after an examination had been made of the township by persons employed for that purpose, Burt and his partner, Billings, became the purchasers of one undivided third part of the township, and took a deed of the same from the plaintiffs. The bond in suit was given as part of the consideration for the conveyance. At the same time Burt & Billings executed a mortgage to the plaintiffs of the same land, to secure the performance of the condition of the bond and the payment of sundry notes given for the purchase money.</p> <p>The defendants offered evidence to show, that the quantity of timber upon the township was much less than that guaran tied in the indenture, and inferior in quality. The plaintiffs contended, that the defendants having accepted the guaranty, and having a complete remedy thereon, it was not competent for them, in this action, to avoid the contract altogether on the ground of fraud. The judge overruled the objection and admitted the evidence It appeared also, that after the purchase by Burt & Billings, the contract with Babcock & Co., mentioned in the indenture, was given up and cancelled by Wheelock, acting for Burt, Billings, Davis, Holbrook, &c. ; that during the winters of 1835 and 1836, and 1836 and 1837, large quantities of lumber were cut and sold from the township, partly under the contract with Babcock & Co., and partly under permits given by the plaintiff Holbrook, acting for the other owners ; and that the proceeds of such sales had been applied in part satisfaction of the bond in suit.</p> <p>It also appeared, that, in 1838, two actions, one in favor of Lambert & Slade of Boston, and the other in favor of Robinson & Plumer of Boston, were commenced in Maine against Burt & Billings ; and that their interest in the township in question, was attached in such actions ; and there was no evi dence, that either of the attachments had been dissolved. By a specification of the claims upon which these actions were founded, it appeared, that they consisted of notes given originally by Burt & Billings, upon the purchase of the township, in part payment of the price, and indorsed to Lambert & Slade, and Robinson & Plumer.</p> <p>During the trial a writing vas produced, purporting to be a deed of release of the pre oises, from the defendants to the plaintiffs, which was handed by the counsel of the defendants to the counsel for the plaintiffs in November, 1838 ; and this writing, together with a new deed of release from the defendants to the plaintiffs, was filed in the case before the trial was finished.</p> <p>The plaintiffs contended, *hat the defendants could not resist the claim of the plaintiffs on the ground of fraud, unless they rescinded the original contract; that they had not done this in a reasonable time after the supposed fraud was discovered, which was as early as the 1st of July, 1836, when Lombard, a witness, who had been employed to scale and ascertain the quantity of lumber on the township, reported to the defendants that there were only six millions of feet on the west half of the township ; and, therefore, that the defendants were not now at liberty to rescind the contract; that if they could have rescinded as against the plaintiffs, they could not as against Davis, the equitable assignee of the bond, who, in December, 1836, acquired the same for a valuable consideration, and had, upon the faith of payments made before and after that time by the defendants, foregone benefits, by delay and otherwise, whereby his circumstances, as the real party in interest, had been materially changed.</p> <p>It was admitted, that no notice of a defence to this action was given by the defendants until after it had been pending in court from December, 1836, to March, 1838 ; and it was contended, that for this reason, also, the defendants ought not to be permitted now to rescind the contract, to the injury of the assignee ; that it was not competent for the defendants to rescind it, unless they could restore the other parties to their original condition ; and that they could not do this, because they had occupied the land for nearly four years, bad enjoyed the benefits of the contract with Babcock & Co., and had cut or permitted to be cut large quantities of lumber on the land, and because the land was now under attachment to secure the payment of the defendants’ debts.</p> <p>The judge instructed the jury, that the rights of Davis, the assignee, were, in all respects, the same as if this action had been commenced and prosecuted by the obligees and they were the holders of the bond; that the defendants might set up any defence, as against him, which they could have done against the obligees themselves, with this exception and limitation, that they could not avail themselves of any payment made to the nominal plaintiffs, or any release made, or other act done by them after notice of the assignment of the bond ; that inasmuch as the defendants were possessed only of an equity of redemption, the plaintiffs would be restored to their estate by the execution of a release by the defendants, and would be in as of their former estate ; that their title would take precedence of any attachment which could be made on the equity of redemption as the property of Burt &"Billings ; that the attachments of Lambert & Slade and Robinson & Plumer would not, therefore, operate as a charge upon the estate, as against the plaintiffs or their assignee, and could not be relied on as preventing the defendants from rescinding their contract, if, in other respects, they had a right so to do ; and that if those actions were brought to recover the amount of notes given for the original conveyance, if that was fraudulent, the plaintiffs could not set up the attachments as an objection to rescinding the contract, as they would themselves be liable for the amount of the notes to the holders.</p> <p>The judge further instructed the jury, that the offer of the defendants to release was, under all the circumstances, made within a reasonable time; that as the plaintiffs had a right to enter upon the estate at any time under their mortgage, they could not suffer by the delay ; that if the plaintiffs gave, and the defendants accepted, the deed in this case as a full execution and performance of the preliminary contract, the guaranty therein, as such, ceased to be in force as a contract, and, after that, neither party had any remedy thereon by action ; but that if, in other respects, the guaranty would afford the parties to it an adequate,remedy, it would be no bar to the defence of fraud in this case, because the parties were different, the contract being between Wentworth and Wheelock, on the one sidey and Burt and Bowley on the other, and the deed being between Holbrook and Wheelock, on the one side, arid Burt & Billings on the other, and because the subject matter, also, was different, the contract being for two thirds of the township3 and the deed for one third.</p> <p>The jury returned a verdict for the defendants.</p> <p>The plaintiffs excepted to the ruling and directions of the judge.</p>

<p>This was an action on a mortgage, brought by the plaintiff as administrator of the estate of Polly Pratt, deceased, to recover possession of the mortgaged premises. The mortgage was dated the 3d of January, 1814, and was given by Nahum Pratt, deceased, father of the defendants, to Esther, Millisent, Rebecca and Polly Pratt, to secure four notes given by Nahum, one to each of the mortgagees.</p> <p>The demandant’s counsel stated, that the mortgagees were all dead ; that Polly Pratt survived the others; that all the notes had been paid, except the one given to Rebecca Pratt; and that this action was brought for the purpose of enforcing payment of that note.</p> <p>The defendants objected, that upon this statement the action could not be maintained in the name of the administrator of Polly Pratt; and for the purpose of settling that question, the chief justice ruled that the action was wrongly brought.</p>

<p>Where a lot of land and a dwellinghouse thereon, were mortgaged, and the mortgager subsequently removed the house and used a portion of the materials, together with new materials, in the erection of a house on another lot belonging to him, which, together with the house, he afterwards, for a valuable consideration, conveyed to a third person, it was AeZd, that as the materials used in the construction of the new house became a part of the freehold, the right of property therein vested in such third person by the conveyance of the land to him ; and that therefore trover could not be maintained against him by the mortgagee, either for the new house or for the old materials used in its construction.</p>

<p>A testator bequeathed to his wife, e< the use of thirty shares in the Oxford bank 5 said shares, at her decease, to be equally divided between his heirs ” and died leaving several children. It was held, that the reversionary interest of any one of the children in these shares was contingent, and consequently not liable to be attached as his property in the hands of the executor.</p>

<p>Where a woman seised of an estate in land for her life, leased the same for her life by a deed reserving an annual rent, but without a clause of re-entry for non-payment of the rent, and the lessee conveyed the land in fee and the grantee entered into possession, it was held, that such grantee, his executor or administrator, was liable to the lessor in an action of debt for the rent.</p> <p>Such grantee having conveyed a part of the land, it was held, that the rent should be apportioned to each part, according to its annual value.</p> <p>Where a feme sole, being seised of an estate for her life in land, demised it for her life, reserving an annual reut, but without inserting in the lease a clause of re-entry for non-payment of the rent, and was subsequently married, it was held, that the husband did not become seised of the estate jure uxoris so as to be entitled in his own right to the rents and profits, nothing remaining to the lessor but the rent, which was a chose in action ; and that therefore the arrears of the rent at his death, survived to the wife.</p> <p>The husband, previously to his death, having taken the lease into his own custody, applied to an attorney to collect the rent, and by his advice requested the wife to execute a power of attorney to prosecute a suit in their joint names, but relinquished such intention on finding her unwilling to give him such authority. It was held* that the husband had not thereby reduced the rent to possession.</p> <p>In the same case it appeared, that in 1803, after the execution of the lease, the lessee conveyed the land in fee, with warranty against incumbrances, to a person who had notice of the existence of the lease, but who entered and held possession of the land for about thirty years, without any claim being made upon him for rent, the same having been paid to the lessor and her husband by the lessee until 1828 ; that the husband died in 1832, and that within a year from his death the wife demanded of the grantee the lent which had accrued since the last payment by the lessee. It was held, that under the circumstances the wife was not chargeable with laches, and that she was entitled to recover such rent of the grantee notwithstanding 1ns possession for so long a period during which no claim for rent had been made upon him</p>