Volume 4 — Massachusetts Reports

<p>This action was originally commenced at the Court of Common Picas for the county of Nantucket, to which both the parties belong, October term, 1805. The declaration is in case for slan- [ *2 ] der, and after the usual allegations respecting *the plaintiff’s good name, fame, and reputation, charges the defendant with speaking and publishing, in the hearing of Benjamin Russell and other good citizens of the commonwealth, of and concerning the plaintiff, the following false, feigned, scandalous, malicious, and opprobrious words, viz.: “ That convict,” thereby meaning that the plaintiff had been convicted of some felony, or other infamous crime, in some court having competent jurisdiction "of such offences; and when the said Russell said to the defendant that he did not comprehend him, the defendant added these words: “ Did you never hear of the affair of the Nantucket Bank ? ” thereby meaning a late robbery and theft committed by some person or persons at the Nantucket Bank ; whereupon the said Russell observed to the defendant that the plaintiff had been honorably acquitted by the jury in that affair; to which the defendant replied, “ That does not make him. the less guilty; ” thereby meaning and intending that the said William was guilty of the crimes of theft and robbery, and had stolen the money then lately stolen from the Nantucket Bank. The plaintiff lays his damages at five thousand dollars.</p> <p>The defendant, by leave, pleaded two several pleas at the court below; 1st. The general issue of not guilty, which was joined by the plaintiff.</p> <p>2. In bar, that the plaintiff “ his action aforesaid thereof against him ought not to have or maintain, because, protesting that he, the said Micajah, did not, in the presence and hearing of divers good citizens of this commonwealth, falsely and maliciously speak and publish the defamatory words mentioned in the plaintiff’s declaration, as the plaintiff has therein alleged, the said Micajah for plea says, that by the constitution of this commonwealth, it is declared that the freedom of deliberation, speech, and debate, in either house of the legislature of this commonwealth, cannot be the foundation of any prosecution or action in any other court or place whatsoever; and because the said Micajah and the said Benjamin Russell, at the time the said words are alleged to have -been spoken, were members of the House of Representatives, one of the houses of said legislature, and the said supposed words, if spoken were spoken [ * 3 ] by the said Micajah to the * said Russell, in deliberation in said house, while the same was in session, and some of the members were there, and particularly the said Micajah and the said Russell, deliberating concerning the appointment of a notary public ; and the said words, if spoken, had relation to the subject in deliberation ; wherefore the said Micajah, at the time and place mentioned in the plaintiff’s declaration, spoke and uttered the words therein mentioned of and concerning the plaintiff, as he, the said Micajah, lawfully and constitutionally might do, and this he is ready to verify ; wherefore the said Micajah prays judgment if the plaintiff his action aforesaid thereof against him ought to have and maintain, and for his costs.”</p> <p>By Isaac Coffin</p> <p>To this second plea the plaintiff replied, “ that notwithstanding any thing in the said plea of the said Micajah alleged, he, the said William, ought not to be barred from having and maintaining his said action against him, the said Micajah, because he says that, at the time and place, when and where the said false, feigned, scandalous, opprobrious, and defamatory words were by the said Micajah spoken and published of and concerning him, the said William, in manner and form as he has alleged in his declaration, the said Micajah, of his own wrong, and without any such cause as is by him in his said plea alleged, spoke and published the said words; and this the said William prays may be inquired of by the country.</p> <p>By ICilborn Whitman</p> <p>And the said Micajah doth the like.</p> <p>By Isaac Coffin.</p> <p>Both these issues were found for the plaintiff at the Court of pommon Pleas, in Nantucket, and his damages assessed in the sum of fifteen dollars. From the judgment rendered below on this verdict, both parties appealed to this Court, which is by law holden for the counties, of Suffolk and Nantucket, and the same issues came on to be tried before Parker, J., at the last November term.</p> <p>From the report of the judge who sat in the trial, it appears that the facts in the case were testified to by Benjamin Russell, a member of the House of Representatives, and were in substance as follows: That in the session of the legislature, June, 1805, William Coffin, the plaintiff, *with whom the witness had some [ *4 ] acquaintance, and of whose integrity he had a high opinion, applied to him to move a resolution in the house, authorizing the appointment of an additional notary public for Nantucket. The witness a.sked and obtained leave to lay on the table a resolution foi that purpose. Micajah Coffin, the defendant, rose in his seat, and asked where the member (meaning the witness) obtained his information of the facts, upon which the proposed resolution was founded. In reply, the witness observed that his information came from a respectable gentleman from Nantucket.</p> <p>The resolve passed, and the speaker had taken up some other business, when the defendant crossed the house, and came to the place where the witness was standing, talking with several gentlemen, in the passage-way, within the walls of the house, and asked the witness who the respectable gentleman was, from whom he had received the information which he had communicated to the house. The witness observed, carelessly, it was perhaps one of his relations, and named Coffin, as very many of the Nantucket people were of that name.</p> <p>On perceiving the plaintiff sitting without the bar, behind the speaker’s chair, the witness pointed to him, and told the defendant that was the gentleman from whom he received the information. The defendant looked towards him, and said, “ What, that convict 1 ” The witness was much surprised at the expression, and asked the defendant what he meant: he replied, “ Don’t† thee know the business of the Nantucket Bank 1 ” The witness replied, “ Yes, but he was honorably acquitted.” The defendant then said, “ That did not make him the less guilty, thee knows.”</p> <p>The witness, being asked whether the house were not then proceeding to the choice of a notary public for Nantucket, answered, No ; that this conversation took place a little before one o’clock, and that the choice was not until the afternoon session, or the next day : being asked whether the plaintiff was not a candidate for that office, he answered, No, and he afterwards recollected that one Hussey was the candidate.</p> <p>|*5] * No contradictory evidence being offered by the defendant, the principal question made by his counsel was upon the plea of privilege.</p> <p>The direction of the judge to the jury was in substance as follows, viz.: That the words charged in the declaration being proved by one witness, whose recollection appeared to be very clear on the subject, and no evidence being offered to contradict his testimony, they would probably not hesitate much, as to finding the first issue for the plaintiff.</p> <p>That as to the matter of defence, which seemed alone relied on, viz., that the speaking of the words was justifiable under the clause of the constitution, which provides for the freedom of speech, deliber< ation, and debate, in either house of the legislature, this was partly a question of law, and partly of fact; the whole, however, for the jury to determine, under such advice as should be given by tie Court.</p> <p>That the question of law would be reserved for the consideration of the whole Court, it being a constitutional question, and worthy of deliberate consultation and decision ; that being, however, called upon, by his official duty, to declare the law to the jury, the judge gave it as his then present opinion that the facts proved were not such as would amount to the justification contended for by the defendant ; that in order to exempt a member of the legislature from the legal scrutiny, which every other man must submit to, if he traduce the character of another, it should appear that the words charged as defamatory, were spoken in the course of legislative business, under the forms prescribed by the house for the conduct of its members ; that it could not be supposed that the framers of the constitution intended to shelter the legislators from punishment, for any violation of the rights of others, further than was necessary for their personal security and independence; and that, in his opinion, the freedom of speech, deliberation, and debate, of the defendant, as a member of the House of Representatives, according to the true sense and meaning of the constitution, was not infringed by the maintenance of this action against him.</p> <p>The subject of damages, the judge observed, was so entirely and exclusively within the province of the jury, that *he [ * 6 ] should say nothing to them upon it, except to caution them, on the one hand, not to give exorbitant damages; and, on the other hand, if they were satisfied from the facts that the plaintiff ought to recover, not to turn him off with such slight damages, as to induce one so situated rather to seek personal revenge, than resort to the laws of his country; that the degree of malice, in an action of this kind, would properly measure the damages ; if the jury believed the words to have been spoken in haste, and in the heat of the moment, without a deliberate and malicious intent to injure, they would of course give small damages; on the other hand, if the evidence satisfied them that the wmrds were spoken from malignant motives, the damages would be greater.</p> <p>The jury returned a verdict against the defendant for two thousand Jive hundred dollars’ damages. A motion was made by his counsel for a new trial on the question of law reserved by the judge, and also for the excessiveness of the damages; and the action was continued to this term for a decision upon that motion.</p>

<p>In an action by an endorsee against an endorser of a promissory note, the plaintiff is not held to prove a demand on the promisor, if it appears that he had absconded before the note is payable.</p> <p>Where a merchant intrusts his clerk with his blank endorsements, and one by false pretences obtains and uses them, such fraudulent use of them is not a forgery, — nor is it such a fraud as will discharge the endorser against the endorsee.</p>

This was an action of the case upon two promissory notes made by the defendants and payable to the plaintiff, the first of which was dated May 26th, 1804, for 214 dollars and 15 cents, payable in six months from the date, and the second dated September 15th, 1804, for 1051 dollars 85 cents, payable on the 26th of November following. Upon non assumpsit pleaded, the action was tried before Parlcer, J., at the last November term.

<p>if a creditor endorses on an original writ a direction to the officer to attach suffi cient estate of the debtor, or hold him to bail, it seems that the officer has an election to execute the writ in either way.</p> <p>But if the creditor, notwithstanding such direction endorsed, on delivering the writ, gives verbal orders to the officer to attach certain specified property, he is bound to conform to such orders.</p> <p>The creditor is not bound to go with the officer making the attachment; but if he direct goods to be attached not in possession of the debtor, or about which there is a dispute, he must give the officer an indemnity.</p> <p>A sheriff is answerable civiliter for the malfeasance or nonfeasance of his deputy in the duties enjoined on him by law, but not for the breach of a contract, made with a plaintiff) to do what by law he is not obliged to do.</p>

<p>“ Elizabeth Prince is attached to answer unto Ebenezer Wells, in a plea of land, wherein the said Ebenezer demands against the said Elizabeth one undivided fifth part of the following pieces of land situate in said Boston, &c. And whereupon the said Ebenezer complains, and says, that Francis Wells, of said Boston, Esquire, his father, at said Boston, on the third day of October, in the year oí our Lord 1766, being seised of all and singular the above-described lands and tenements, with the appurtenances, in his demesne as of fee, taking the profits thereof to the yearly value of one thousand dollars, made his last will and testament, duly executed to pass real estate, in writing, and therein and thereby, among other things, gave and devised the aforesaid lands and appurtenances to his wife, Susanna Wells, for and during her natural life, and at her death equally to his sons Ebenezer, &c., [naming six others,] and his daughters Catharine, &c., [naming five others,] to have and to hold to the aforesaid sons and daughters and their heirs forever, from and after the death of the said Susanna; and the said Francis, the testator, thereafterwards on the same day died so seised of said lands and appurtenances, and the said will of the said Francis was thereafter-wards, on the 17th of October, in the same year, duly proved, approved, and allowed, whereby the said Susanna became legally seised of the same described premises for and during her natural life, and the said sons and daughters of the said Francis, the testator, became seised as of- fee and right of and in the remainder of the same lands and appurtenances, expectant * on the death of the said Susanna, and afterwards, viz., [ * 65 ] at said Boston, on the first day of January, in the year of our Lord 1795, the said Susanna, wife of the said testator, died, and afterwards, on the same day, at said Boston, certain of the said sons and daughters of the said Francis, the testator, viz., the said Samuel, &c., [naming seven others,] died without an issue and intestate, by means whereof the said Ebenezer Wells, the demandant, became seised of one undivided fifth part of the said lands and appurtenances, as of fee and right, and ought now to be in quiet seisin and possession thereof accordingly. Yet the said Elizabeth Prince hath since illegally entered into the same premises, and still unjustly deforces him.”</p> <p>Upon the trial of this action, on the general issue pleaded, before ParJcer, J., at the last November term, the demandant proved the seisin c-f Francis Wells, the demandant’s father, by purchase, and the devise, as alleged; but there being no evidence of any entry by Susanna, the devisee for life, or of any act of ownership exercised by her during her life, and the demandant never having entered, or in any wise occupied the demanded premises, the judge directed the jury that the action was not maintained, and a verdict was accordingly returned for the tenant.</p> <p>Upon this direction of the judge, the demandant moved for a new trial, and the action stood continued to this term.</p>

<p>The sheriff’s bond to the treasurer of the commonwealth is intended for the benefit of individuals who may suffer by the malfeasance or misfeasance of the sheriff, as well as for the benefit of the commonwealth; and the treasurer is a mere trustee of the bond for the use of those who may suffer by a breach of its condition, whether it be the commonwealth or private persons.</p>

In this action, which was a writ of entry sur disseisin, the demandants claimed certain flats in Boston, described in the writ, counting on the seisin of Joseph Hemmenway, their father, within fifty years.

<p>If, upon a trial, the judge, thinking the plaintiff’s evidence insufficient to support his action, stops the defendant from producing his evidence, and the jury, notwithstanding, find a verdict for the plaintiff, the Court will set aside the verdict, without the defendant’s waiving his right of review, he having in fact had no trial.</p>

<p>Where a witness is ignorant of the English language, an interpreter is sworn to explain the oath to the witness.</p>

<p>It is a reprehensible practice to insert the name of a fictitious trustee in a foreign attachment, in order to give to the Court in one county a jurisdiction of the suit, the defendant and the other trustees living in another county.</p> <p>The question whether trustee or not depends solely on the sworn answers of the persons summoned to the interrogatories: and the Court will not receive a statement of facts agreed to by the plaintiff, defendant, and trustees.</p>

This action was brought'upon a policy of insurance made by the defendants upon the schooner Argo and her cargo.

In this action, the only question agitated was, whether Munson was the trustee of Thun and Newman, the principal defendants.

<p>When an abandonment is offered to underwriters by the assured, it is not necessary to produce evidence of the loss under oath.</p> <p>Where, by the terms of a policy of insurance, a loss is payable at a given time after notice of the loss, if, at the time of abandonment, the assured had a right to recover for a total loss, this right will not be affected by the credit given to the assurers in the payment of the loss, although, in the mean time, the loss has .ceased to be total.</p>

<p>When and to whom freight is payable. [It is payable to the person entitled only on delivering of the goods. If due to two jointly, both must be joined in a trustee process, or the party by whom it is owing cannot be holden for it as trustee of either.—Ed.]</p>

This was assumpsit upon a contract in the following words, viz.: — “ Ric Pongos, on the coast of Africa, July 27, 1802. I promise to pay, or cause to be paid, to the owners or concerned of brig Hope, nine four foot slaves, thirty-seven prime slaves, and seventy-six bars, on demand, for value received of Capt. Hichborn. “ Benja.

<p>It the holder of a promissory note prove his demand under a commission of bankrupt issued against the first endorser, and afterwards, but before any dividend is declared under the commission, receive payment of the note from the second endorser, and then receive a dividend under the commission, he shall account to the second endorser for tile amount of such dividend, and not to the creditors of the bankrupt.</p>

<p>This was an action of debt on a bond given by the defendants to the judge of probate, as sureties with Samuel Treat, deceased, upon his being appointed guardian to his five minor children. The writ was thus endorsed: “ This suit is commenced for the benefit of Samuel Treat, Maria Treat, Ann Treat, Mary Treat, and Lucius Junius Treat, children of Samuel Treat, deceased, and heirs of Lemuel C. May, deceased.”</p> <p>The defendants confessed the forfeiture, and prayed to be heard in chancery.</p> <p>The Court appointed two commissioners to hear the parties, and to receive and state the account of said Treat, exhibited by the defendants, (consisting of charges for the * main- [ * 98 ] tenance of the said children,) which the defendants prayed to be allowed in mitigation of damages claimed by the plaintiff in this action.</p> <p>The commissioners reported that the deceased guardian had received sundry sums of money for his minor children, as they were legatees named in the last will of Lemuel C. May, deceased, amounting in the whole to 2452 dollars 70 cents; that, as to the account exhibited by the defendants, they found no charges made by the late guardian in his lifetime, nor any vouchers among his papers in support of said account, which, they say, was wholly assumed by the defendants, his sureties, as what they suppose he would have been entitled to exhibit and claim, had he seen fit so to do ; that the charges were all reasonable that he did in fact support his said children, during the time the said account charges; and that he had little or no property of his own.</p>

This was a writ of replevin brought to replevy certain chattels which the defendant, who is a deputy sheriff of this county, had attached as the property of the present plaintiff. By a statement of facts, upon which the opinion of the Court was given, it appeared that Brazier and Davis, in February, 1803, commenced a suit against Clap, on which the defendant, Bell, attached the goods in question.

<p>This was a scire facias against the defendant, who had been summoned, in an original suit, by the present plaintiff, as the trustee of Lemuel Cox.</p> <p>The defendant, upon the return of the scire facias, submitted to an examination, and stated that on the 28th of July, 1803, he, being assignee of the estate of E. B., Jun., a bankrupt, and against whom a commission of bankruptcy was then in prosecution, and having in his hands certain moneys belonging to said estate, the commissioners ordered a dividend of 25 per cent., which dividend amounted, on two certain debts proved by said Cox under said commission, to 469 dollars 69f cents, which the defendant acknowledged to have in his hands at the time of his examination, subject to legal disposal. After the defendant was summoned in the original suit referred to in the scire facias, two notes of hand, which appeared to have been, and which the defendant verily believes to have been, the proof of the said debts, were shown to him in behalf of Betsey Dudley, daughter of the said Cox, whose name was endorsed thereon, and the money in his hands, as aforesaid, was demanded of him as the property of the said Betsey Dudley; which said notes are particularly set forth and described in an affidavit of the said Cox, exhibited by the defendant, in which the said Cox swears that the said notes were endorsed by him to his said daughter, and are, and were before the bankruptcy of E. R, Jun., her property, and that he exhibited them before the commissioners as her agent; that the said affidavit was presented to the defendant on the 15th of October, 1804, in behalf of the said Betsey Dudley ; that no other proof was ever exhibited to him of the said assignment; but the defendant says he has no cause to disbelieve the facts stated in said affidavit; and whether he is trustee of the said Cox upon these facts, he submits to the Court.</p>

In this case, Geyer, the principal defendant, was defaulted upon the return of the writ. Whitney, the trustee, upon his examination, stated that he “ owed to said Geyer and his partner, James Coolc, at the time of the service of the writ upon him, the sum of ninety dollars and ninety-six cents, which, by his agreement with them, was to he paid in mason’s work and materials.” Upon this statement, the question before the Court was, whether Whitney was the trustee of Geyer.

<p>This was an action of debt upon a bond for a review. The con dition recites a judgment recovered in the Court of Common Pleas, in January then last, by the plaintiff', against Joseph Howard, the principal obligor, for 3277 dollars’ damage, and costs, taxed at 8 dollars 71 cents, and that this Court, on *the [ * 104 J petition of the said Howard, had granted a review of the action, in which the said judgment was rendered, and a stay of execution, and concludes thus: “ Now, if the said Joseph Howard shall and do prosecute his writ of review aforesaid, at the next Supreme Judicial Court, in said county, in due form of law, to final judgment thereon, and shall pay all such damages and costs as the said Isaac Hicks may and shall recover against him on the same writ, or the original judgment herein first recited, with interest in case the same writ of review shall not be prosecuted as aforesaid, then this obligation to be void; otherwise of force.” The defendant’s intestate, Gibbs Atkins, executed the bond as surety.</p> <p>Upon oyer had of the bond and condition, the defendant pleads in bar of the action that the said Howard did prosecute the said writ of review, &c., [in the words of the condition,] as by the records of said Court, in said Court remaining, will appear.</p> <p>The plaintiff, in his replication, prays oyer of the said records, and has it. From the record it appears that Howard sued out his writ of review, and entered it at August term, 1804, from whence it was continued from term to term, until November, 1806, at which last mentioned term Howard became nonsuit, and Hicks had judgment for his costs, taxed at 55 dollars 79 cents. The plaintiff then demurs generally to the plea in bar, and the defendant joins in demurrer.</p>

<p>Ejectment on a mortgage given to secure the payment of a bond, dated October 23d, 1778, conditioned to pay 220Z., lawful money, in one year, with lawful interest from the date. The following payments were endorsed upon the bond, viz.: June 17th, 1785, 3lZ. 14s.; December 20th, 1793, 16Z. 10s. 3d.; October 16, 1794, 11Z. 2s. 2JcZ.</p> <p>The plaintiffs had computed interest on the principal sum at its nominal value to the time of the first endorsement, and then deducted the amount endorsed ; and having then reduced the remainder by the scale of depreciation established by law, had calculated interest upon it to the time of the second endorsement.</p>

Debt on bond for the faithful performance of the trust of guai dian. The action was brought for the benefit of John S. Richards, and Sarah Richards, a minor, whose names were endorsed on the writ, and to whom the said Bell was guardian.

At the Court of Common Pleas, this action was permitted to be entered on the 27th day of the term, after which Charles Smith, who was the defendant’s bail in this action, comes into Court, and for himself and his principal moves the Court that the action may be dismissed, or the plaintiff become nonsuit; suggesting, as a reason, that, since the beginning of the term, the defendant has left the state, although he was here, and ready to be surrendered, on the first day of the…

<p>This was an action of covenant broken, on a deed, by which the defendant, as surviving executor of the last will of JohnErving, Esq., deceased, conveyed several parcels of land to the plaintiff, and one William Tyler, deceased, in fee. The defendant covenanted that Erving, in his lifetime, and at the time of his death, was lawfully seised in fee of the premises; that they were free of all encumbrances ; that he had good right to convey the same by virtue of said last will; and that he would, in his said capacity of executor, warrant and defend the same against the lawful claims and demands of all persons.</p> <p>*The breaches assigned by the plaintiff are, that Er- [ * 109 ] ving was not lawfully seised, &c.; that the premises were not free of all encumbrances ; that the defendant had not good right to convey, &c.; and that he hath not warranted and defended the same to the plaintiff. But one Robert Rand and others, being rightful owners of one of the parcels conveyed, have entered upon and taken possession thereof, and evicted and amoved the plaintiff therefrom, and still continue lawfully to hold and enjoy the same.</p> <p>The defendant pleads in bar, 1. That Erving was lawfully seised, upon which issue is joined. 2. That the premises were free of all encumbrances at the time of the execution of the deed declared on, upon which issue is also joined. 3. The third plea sets forth the seisin of the testator, the making of the will, the death of the testator, the probate of the will, the authority given by it to the executors to sell the real estate, the death of the other executors, and concludes that the defendant, as surviving executor, had, by virtue of the power given in the will, good right to sell, &c., according to the true intent and meaning of his covenant in that behalf made, &c.; and this he is ready to verify; wherefore, &c. In his replication to this plea, the plaintiff denies the seisin of the testator, on which issue is taken. 4. The fourth plea alleges that the said Robert Rand and others did not lawfully enter, &c.; upon which issue is joined.</p> <p>These four issues were tried at the last November term, before Parker, J., who directed the jury, if they found that John Erving was never seised of the land in his lifetime, so that the executor, at the time of entering into the covenant, had no right to sell, they would give such part of the consideration money with interest in damages, as they should find applied to the piece of land in question, one moiety thereof belonging to the plaintiff; but if'they found the second and fourth issue for the plaintiff, viz., that he had been- evicted by superior title, according to the allegation in the declaration, or that the estate had been encumbered by Erving before the execution of the deed, as there was a covenant to warrant and defend in the deed, they would consider the value of the land at the time of the eviction as the proper [ *110 ] * measure of damages. The jury found the first and third issues for the plaintiff, and assessed damages according to the judge’s direction ; the other issues were found for the defendant. The judge certifies that in his opinion the verdict is conformable to the evidence in the case, and refers to the decision of the Court the question whether his direction was right on the subject of damages ; and whether this action can be maintained against the defendant in his private capacity, is reserved at the request of the defendant’s counsel.</p> <p>And now at this term the defendant waived all objections to the verdict, and is content that judgment be rendered upon it. [Note. It was understood that the heirs of Erving, the testator, had, engaged to indemnify the defendant.]</p>

<p>Land is described in a conveyance to A as bounded on B’s land; B owned, at the time, a piece of land, and had contracted to purchase another piece adjoining, which he occupied as his own, but had received no conveyance of it at the time of tile conveyance to A, although he had paid the price for it; it was held that A’s land was bounded by the land owned by B, and not by that occupiea by him.</p> <p>The words “with all the buildings thereon,” in a conveyance of land, have no lega, effect</p>

<p>This was an action pending in the county of Middlesex. The declaration was “ in a plea of the case for that the said David, at Boston, viz., at Charlestown aforesaid, on the twenty-second day of October, in the year of our Lord 1805, in consideration that the plaintiff had made him, the said David, his bailiff of one case of linens of the value of five hundred dollars, and had agreed to allow and pay him a commission of five per cent, on the proceeds .of the sale thereof, promised the plaintiff to transport the same linen to Charleston, in the state of South Carolina, at his, the said David’s, own risk against all danger, excepting the dangers of the seas, and dispose of the same to the plaintiff’s best profit and advantage, and render to the plaintiff his reasonable account thereof. Yet the said David, though often requested, has never rendered his reasonable account to the plaintiff touching the premises, or in any wise paid him for said linen ; to the damage,” &c.</p> <p>Upon non assumpsit pleaded, the cause was tried, at the sittings after the last October term at Cambridge, before the Chief Justice whose report was as follows : —</p> <p>“ On the trial, the plaintiff to maintain the issue on his part, gave in evidence a memorandum, in writing, signed by the defendant, in the words following: —‘ Boston, Oct. 22, 1805. Received on board the ship Rodney, J. Hurd, bound for Charleston, S. G., a case of linens, amounting, for the sterling cost, to 841. 5s. Ojd., which 1 promise to dispose of in Charleston for account of Nathan Bridge, and to account and pay to him the proceeds, and take on myself all risks except those of the seas, for which I shall charge five per cent. David Austin.’ And it was agreed by the parties that the said case of linens was transported by the defendant in the said ship to Charleston, where it arrived, and was delivered safe to him by the said Hurd.</p> <p>“ The defendant, to maintain the issue on his part, gave in evidence that, after the case of linen was delivered to him in Charleston, he stored the same in a suitable and convenient store there for sale ; that before the same was sold, it was stolen from the said [*116] store, by some thieves to him unknown, * without any fault on his part; that he has never been able to discover the said thieves, or to recover the said linens, or any part of them; and that the customary commissions charged by commission merchants in Charleston for the sales of merchandise and making returns is five per cent, on the proceeds.</p> <p>“On this evidence, the plaintiff insisted that the defendant was not discharged, by the said larceny. The defendant insisted that he was discharged, and if he was not, that he was entitled to another five per cent, besides that mentioned in the memorandum.</p> <p>“ I told the parties that as the merits of the cause depended on the legal construction of the written memorandum, I would reserve that construction for the opinion of the whole Court; and as there were no sales, I should direct the jury to find a verdict for the plaintiff, and to assess his damages equal to the value of the linens at Boston when shipped, deducting therefrom five per cent, commissions. They found a verdict agreeable to the directions; and the defendant, waiving his right to a review, moves for a new trial for the misdirection of the judge.”</p>

The petitioner demanded one undivided ninth part of the de scribed premises lying in Acton, in the county of Middlesex, the petition having been preferred to the Court of Common Pleas in that county.

<p>A petition for partition ought not to include lands lying in different counties.</p>

<p>Before the revolution, the settlement of a slave always followed that of his master.</p> <p>Slaves were not within the statutes relating to the warning of persons in order to prevent their gaining a settlement; nor within the statute of 7 Geo. c. 3, which provides that no settlement shall be gained by residence.</p> <p>But when manumitted, they could acquire a settlement in their own right, and if they had resided a year in the town whgre they were manumitted, they could not then be warned out.</p>

<p>If a person, before the statute of 7 Geo. 3, c. 3, had been duly warned to depart from a town, so as to prevent his acquiring a settlement in such town, and, after the warning, removed from the town without an intention of returning, continuing absent long enough to gain a new settlement, and afterwards came bade, and dwelt in the town he had been warned to leave, he must have been again warned within a year from his return, or he would have gained a settlement.</p>

<p>This was an action pending in Middlesex, brought by the plaintiff’s testator, Jonathan Wallis, Jun., and upon his decease, prosecuted by the plaintiff, executrix of. his last will. The declaration was assumpsit for 400 dollars, money had and received to the use of the plaintiff.</p> <p>At the last October term at Cambridge, the parties agreed to submit the cause to the Court upon a statement of facts; purporting that on the 11th day of June, 1805, the defendant, by his deed of that date, for the consideration of four hundred dollars expressed in the deed, gave, granted, sold, and conveyed, one fourth part of certain lands described in the deed, to the original plaintiff, (who was the defendant’s son,) his heirs and assigns; to haw and to hold after the death of the grantor; and covenanted with the grantee that *he, the grantor, was lawfully seised in fee of f * 136 J the premises, that they were free of all encumbrances, except the grantor’s right to the free improvement of said lands and buildings during the term of his natural life, and that he would warrant and defend the same to the grantee, his heirs and assigns, forever, after the decease of him, the grantor, to hold as aforesaid; that the defendant refused to permit the said testator to enter under said deed, and that the said testator never did enter the premises so supposed to be conveyed by force of said deed ; and on the first day of December, 1806, brought this action to recover back the said sum of four hundred dollars, the consideration money paid, upon the ground that nothing passed by said deed.</p> <p>If the Court should be of opinion that the plaintiff can maintain this action, the defendant agreed to be defaulted; otherwise the plaintiff agreed to become nonsuit.</p>

<p>If two executors are named in a will, they knowing of their appointment, and the will is not presented to the Probate Court within thirty days from the death of the testator, an action for the forfeiture incurred by the statute of 1783, c. 24, § 16, may be sued against them jointly, or perhaps severally, although but one forfeiture can be recovered.</p> <p>But if the neglect be in one of the executors only, he alone incurs the forfeiture, and is alone to be sued.</p> <p>A man and his wife cannot recover in a popular action, sued in their joint names.</p>

This was an action of the case brought in Middlesex, pursuant to the private statute of 1797, c. 75, to recover treble the value of certain shad and alewives, alleged to have been taken by tile de fendant within the limits of Watertown.

This was an action of trespass, pending in the county of Middlesex, and was tried before the Chief Justice, at the sittings in Cambridge after the last October term. The declaration originally contained two counts. The first was trespass at common law, for pulling down an uninhabited house of the plaintiff’s. In the second count, for the same trespass, the plaintiff demanded treble damages on the provincial statute of 1 Geo. 2, c. 4.

This was a writ of error, brought in the county of Middlesex, to reverse a judgment of the Court of Common Pleas for that county, rendered in June, 1805, in favor of the defendant in error against the plaintiff’s testator.

<p>Lands specifically devised are liable to be levied upon by the creditors of the testa tor, equally with other lands, of which he died seised.</p> <p>Lands of a deceased testator are liable to be taken in execution by a creditor, notwithstanding the executor,being residuary legatee, has given bonds to pay the debts and legacies.</p> <p>Lands of a deceased testator are liable to be taken m execution, although in the possession of an alienee of devisee.</p> <p>The extent of an execution on lands gives the creditor an actual seisin of the lands.</p> <p>If an execution against the estate of a deceased testator be levied on lands in possession of an alienee of a devisee, and within the year the land be redeemed by the alienee, — in an action of covenant against the devisee, he will recover, as damages, the redemption money and interest</p>

<p>Endorsers of a negotiable security are incompetent witnesses to prove it usurious.</p>

<p>The defendant was indicted for making and publishing the following malicious libel against one Caleb Hayward, an auctioneer, and posting it up in several public places in State Street, in Bostonp viz., “ Caleb Hayward, is a liar, a scoundrel, a cheat, and a swindler. Don’t pull this down.”</p> <p>Upon the trial at the last November term, before Parker, J., the counsel for the defendant insisted upon their right to prove the truth of the matters charged in the libel, and stated that, if permitted, they could prove that, in a course of dealing between the defendant and Hayward, the latter had defrauded the former; and particularly that, upon a reference of certain disputes between them, Hayward had, by means of misrepresentations, and suppressing evidence, recovered a much larger sum against the defendant, than he, Hayward, knew to be due; and further, that, in his dealings with other people, Hayward had in many instances acted unfairly. The motion was overruled by the judge, and the defendant, being found guilty, moved for a new trial, because evidence to the foregoing effect was rejected.</p>

<p>A judgment debtor against whom an execution may issue, is not liable to an attachment as the trustee of the judgment creditor.</p> <p>But if, being so attached, he discloses the judgment as effects or credits of the creditor in his hands, he is not held to pay interest on the judgment, because he has not unjustly detained it</p>

<p>This was a writ of error brought to reverse a judgment rendered by a justice of the peace. The original declaration was assvmpsit for money had and received, to the use of the original plaintiff, who is the plaintiff in error.</p> <p>The facts were agreed, before the justice, to be as follows: — The plaintiff had paid to the defendant the sum of [ * 172 ] * five dollars thirty-three cents, which the latter had demanded as clerk of a military company in Boston, in which the plaintiff was enrolled, that is to say, two dollars for a fine for his non-appearance at a muster of the company on the first Tuesday of May, 1807, and three dollars thirty-three cents for de ficiency of equipments at the same muster. The defendant agreed to take no advantage of the voluntary payment of the fines by the plaintiff, and the question referred to the justice upon the facts agreed, was whether the defendant had or had not a right to demand and receive the said fines. The justice rendered judgment against the plaintiff, who filed his bill of exceptions, from which the foregoing facts appear, and brought his writ of error to this Court.</p> <p>The defendant in error was defaulted ; and the Court calling on the plaintiff in error, who was an attorney of this Court, to suppor' his writ, he cited the statute of 1805, c. 114, <§> 6, which is in addition to the statute of 1793, c. 14, for regulating and governing the militia, &c. By the additional act, each non-commissioned officer and soldier, who shall unnecessarily neglect to appear at the time and place appointed for a battalion or regimental review or muster, armed and equipped according to the act of 1793, shall, in lieu of the fines noiv provided by law, pay, as a fine for each default, the sum oí four dollars, and at each company review or muster, for each default, the sum of two dollars.</p> <p>By $ 18 of the act of 1793, the requisite equipments of a non-commissioned officer and private are described, and he is ordered to be constantly provided with them. By <§> 19, if on a muster day, or at any other time of examination, he appears unprovided with such equipments, he shall pay a fine not exceeding twenty shillings, in proportion to the articles of which he shall be deficient, at the discretion of a justice, &c. By <§> 20, every person liable to do military duty, who neglects to appear, &c., armed, &c., shall pay, as a fine for such default, ten shillings; and every person who shall appear at any muster with his arms in an unfit condition, shall pay a fine of three shillings for each and every such default. By <§> 24, every captain is ordered to call his company together three days in each year, for discipline, and *once, on [ *178 ] the first Tuesday of May, for the express purpose of examining and taking an exact account, &c., at which time every article of equipment, &c., must be brought; and every person who shall on the said first Tuesday be absent, and shall not send his arms, &c., to be examined, shall be fined for every article not brought or sent, as is herein before directed, besides the sum of ten shillings for non-appearance, as aforesaid.</p> <p>By the act of 1793, the fine for non-appearance was the same at all reviews or musters, and a further penalty was inflicted for deficiency of equipments on the first Tuesday of May, if not at other times. Perpetual disputes arising from the disposition of the clerks of the military companies to demand fines, under the 19th § of that act for deficiency of requisite equipments, induced the legislature to make the new provision in the case contained in the law of 1805, c. 114, by which fines for deficiency of equipments are no 'anger to be demanded, in addition to fines for non-appearance. For each default in unnecessarily neglecting to appear, &c., armed and equipped, &c., the fine is now four dollars at a battalion or regimental muster, and two dollars at a company muster. The word default, by necessary construction, applies here as much to the neglect of arms and equipments, as to neglect of appearance: the w hole constitutes one offence, and is subject to one penalty by force of the words in lieu of the fines now provided by law, meaning all the fines m pari materia. It is very clear that the new fines are not intended to be added to the old ones. Yet the clerks of the companies, since the last statute, have demanded the newly-enacted penalties of four and two dollars for non-appearance, and also the penalties of the former act for deficiency of equipments, in lieu of which the new fines are imposed. So that for every default on the first Tuesday of May, they have demanded three dollars and thirty-three cents more than the law prescribes. The necessity of settling the true construction of the statute by the highest judicial authority will be very apparent, when it is considered that this extra penalty may amount, in the town of Boston alone, to a tax of three or four thousand dollars per annum.</p> <p>[ * 174 ] * Here the Court desired the plaintiff in error to show that a writ of error lies to this Court from a judgment of a justice of the peace, from which by law an appeal lies to the Court of Common Pleas</p> <p>On a subsequent day in the term, the plaintiff in error, in obedience to the foregoing suggestion of the Court, argued to the following effect: —</p> <p>1. It is observable that the statute of 1783, c. 42, describing the power of justices of the peace in civil actions, has no express words to that effect; it must, therefore, be by implication, that this Court is ousted of the power, which it might have exercised, had no appeal from such judgment of a justice been granted. His jurisdiction would then have resembled that of inferior courts of record in England, whose proceedings may be examined and corrected in the Court of King’s Bench by writ of error or certiorari. This Court has cognizance of all such matters as were cognizable by the Superior Court of Judicature, &c., under the provincial laws. The powers of that court are declared in the provincial act of 11 Will. 3, c. 3, to be as extensive as those of the Courts of King’s Bench, Common Pleas, and Exchequer, in England.</p> <p>2. The chief design of the statute, in giving an appeal from the judgment of a justice, was probably to give the party the advantage of a trial of the facts by a jury, for without such appeal the party could have brought error for matter in law. But in the present case, no trial by a jury was necessary, for the parties agreed on the facts ; and to have appealed to the Common Pleas would have been making a circuit to arrive at the object. “ Judgments,” says Sir Henry Hobart, “ are laws, when not to be reversed.” But if this question is to be definitely settled in the Courts of Common Pleas, it may happen-that we shall have different law in each county ot the state. If the decision of the Common Pleas would have given no more satisfaction than that of a justice of the peace, we ought not to be precluded from coming immediately to the fountain of law, without the special restriction of a statute. In Carter’s Reports, 222, Vaughan, C. J. of C. B., says, “ A writ of error out of an inferior court lies as properly here, as in the King’s Bench. *But generally writs of error for many years have not [ * 175 ] been brought here; the reason is matter of conveniency; because, if you bring a writ of error here, and the judgment is affirmed, yet it may be brought into the King’s Bench, and be there reversed; though, indeed, if a writ of error be brought here, we must proceed upon it. But no man will advise his client to bring it here, but rather into the King’s Bench, where it is final.”</p> <p>3. No question precisely similar to this can be found in the English books; for an appeal, as the word is used here, is not al lowed from any courts, whose proceedings follow the course of the common law. Facts may be as well ascertained by a jury in one court as in another. But any error of law may be shown to the King’s Bench, from the lowest court of record in the kingdom ; and that court cannot refuse cognizance thereof.</p> <p>4. Analogies of great weight are derivable from the practice ol the King’s Bench, in numerous instances of certiorari, of which that court will not be deprived, except by special and direct words of a statute.</p> <p>By the statute of 22 Car. 2, c. 1, <§> 6, commonly called the conventicle act, a strong presumption is raised, that the legislature intended to prevent the interference of the King’s Bench. But that court asserted their jurisdiction by certiorari to a justice, even after appeal, and a trial, verdict, and judgment by the Quarter Sessions, to whom only an appeal was granted by that statute. (1)</p> <p>The statute of 13 Elis. c. 9, had made orders of commissioners of sewers binding without the royal assent, and had also enacted that they should not be reversed but by other commissioners. Yet says Kelynge, C. J., in the King’s Bench, (2) “ It never was doubted but that this court might question the legality of their orders ; and you cannot oust the jurisdiction of this court, without particular words in acts of parliament. There is no jurisdiction that is uncontrollable by this court.”</p> <p>*The case of Rex vs. Whitebread, (3) taken in con- [*176 ] nection with the case of Rex vs. Abbot, reported at length in the margin of the principal case, strongly favors this notion of the jurisdiction of this court. In the first case, where there was no doubt of the intention of the legislature to take away, by statute of 6 Geo. 1, c. 21, the superintending process of certiorari by the King’s Bench, in cases under the statute of 12 Car. 2, c. 24, <§. 33, the court would not permit a certiorari to issue ; but the argument upon the necessity o.f an express restriction of their authority to award that writ is very complete. In the second case, Rex vs. Abbot, decided three years after, upon a statute of 11 Geo. 1, c. 30, $ 16, although the certiorari in parallel cases had been expressly taken away by a statute only one year before ; and although it was argued that there was no hardship in taking away the certiorari, for there is a remedy on the merits by an appeal from a conviction by justices to the Quarter Sessions, and, unless in matters of law or form, a defendant would have no redress, if a certiorari were allowed ; and, although the proceedings of the Quarter Sessions on the appeal might have been corrected in the King’s Bench, the court decided that the certiorari was not taken away. Lord Mansfield declares the old, established rule to be, “ that nothing but express negative words shall take away the jurisdiction of this court.”</p> <p>Let it be supposed that under the militia law of this commonwealth, which has provided that “ no appeal shall be allowed to either party from the judgment of a justice of the peace, upon any prosecution or complaint brought by any clerk of a company,” &c., an appeal had been allowed to military commissioners only, there to be finally determined ; from the above-cited decisions it seems that this Court wmuld not be deprived of their power of issuing a certiorari, any more than they now are by our present statute ; and that a party aggrieved might bring his case before this Court, without the intervention of the appellate jurisdiction. Yet it might be urged that justice might have been done, and the par- [ *177 ] ties satisfied with the judgment * of the Quarter Sessions in the English cases, or of the commissioners in the case supposed, and that this also might have been the result of an appeal to the Common Pleas in the present case.</p> <p>These instances are where statutory provisions have changed the order of proceeding; yet the higher courts of common law are not deprived of their superintending jurisdiction. But in the principal case, the proceedings pursued the forms of the common law, and, therefore, seem indisputably entitled to all the advantages of the common law, of which not the least is the superintendence of this Court over all inferior jurisdictions. If this Court cannot be ousted of this jurisdiction without special words ; if, in case no appeal from a justice’s judgment had been granted by statute, this Court would have controlled and corrected the erroneous judgment, —it seems equally empowered since the provisions of the statute granting appeals to the Court of Common Pleas. If it has cognizance, it ought, in the present case, to be exercised, or the meaning of the expression, that the writ of error is a writ of right, is exceedingly narrowed.</p> <p>The plaintiff in error, besides this argument, relied very much on the general tenor of the case of Mountfort vs. Hall, in error, (4) to confirm his opinion of the extent of the jurisdiction of this Court. That case was very fully argued, and carefully considered. The cause, indeed, turned upon the construction of a statute provision, taking away the right of appeal, in a certain case, from a justice’s judgment, which was alleged to be an unconstitutional provision. The whole Court,.however, supported the express meaning of the statute, and Sewall, J., said, “ This construction may be the more readily adopted, as any party aggrieved by a decision of a justice of the peace, or of any other court, upon a matter of law arising, and apparent upon the record or minutes of the Court, has another and more specific remedy, by writ of error or certiorari.”</p>

<p>This was an action of the case in assumpsit, brought for the recovery of money expended by the plaintiffs between August 18, 1804, and February 9, 1806, in the support of a pauper, and by them alleged to be chargeable to the town of Rehoboth. The action was pending in the county of Worcester, and upon trial before Sewall, J., at the sittings after the last September term, a verdict was taken for the defendants, subject to the opinion of the Court on the following statement of facts: —</p> <p>“ The overseers of the poor of Leicester, on the 11th day of Oc tober, 1802, gave notice in writing, as the law requires, to the overseers of the poor of Rehoboth, that said pauper was then in Leicester, was poor, and had become chargeable to that town, and requested his removal; which notice was not answered, nor objected to, on the part of Rehoboth, within two months, as the law requires. Afterwards the said town of Rehoboth paid said town of Leicester all the expenses incurred by the latter in the support of said pauper previous to said notice, and for more than two months subsequent thereto; but said pauper has never been removed.</p> <p>“ Now, if, upon this state of facts, the Court shall be of opinion that the defendants have a right to contest the settlement of said pauper in their town, in this action, then the parties agree that said verdict shall stand, and that judgment shall be rendered accordingly ; but if the Court shall be of a different opinion, then the parties agree that said verdict shall be set aside, that the defendants shall be defaulted, and that judgment shall be rendered for the plaintiffs for fifty dollars’ damages, with costs of suit.</p>

This was a writ of error brought in the county of Worcester, to reverse a judgment of confiscation of the inferior Court of Common Pleas of that county, in December, 1780, rendered upon a certain complaint, wherein the commonwealth of Massachusetts, by Levi Lincoln, Esquire, specially appointed by Robert Treat Paine, Esquire, then attorney-general, for that purpose, was prosecutor and plaintiff against * Michael Martin, late of [*183] Northborough, in said county of…

This was a writ of formedon in remainder, pending in the county of Norfolk, in which the demandants count upon the seisin in fee of Mary Williams, and a devise by her of the demanded * premises to her grandson George Baker, when he [* 190 ] should arrive .at the age of twenty-one years, and to the heirs of his body lawfully begotten ; and in case he should die after his arriving at the age of twenty-one years, and leave the devised premises, but leave no heirs of his body…

<p>When the description of an estate intended to be conveyed includes several particulars, all of which are necessary to ascertain the estate to be conveyed, no estate will pass except such as will agree to every particular of the description ; but if the description be sufficient to ascertain the estate intended to be conveyed, although the estate will not agree to some of the particulars in the description, yet it shall pass by the conveyance, that the intent of the parties may be effected.</p>

The only question in this action was, whether Mr. Winthrop should be adjudged the trustee of the defendant Armstrong upon the following disclosure made by him at the Common Pleas in July last. “ And now the said Thomas L. Winthrop, in his own proper person, cometh into court, and for answer to the plaintiff’s writ aforesaid, saith, that before the month of January, [ * 207 ] * 1800, Messrs.

<p>In the construction of a will, the Court will give effect to all the words, without rejecting or controlling any of them, if it can be done by a reasonable construction, not inconsistent with the manifest intention of the testator.</p> <p>But if a latter clause is repugnant to a former one, the latter must prevail, because it is the last determination of the testator; unless the apparent intention of the testator in other parts of the will leads to a different conclusion.</p> <p>A legacy payable on a certain event does not carry interest, whether it be vested absolutely or on a contingency; except where it is bequeathed to a minor, whom the testator was under a moral obligation to support, and for whom no support is provided until the legacy is payable.</p> <p>A legacy was given to A B, to be paid to him on his attaining the age of 21 years. There was also a general direction that all the legacies should be paid with interest in three months from the testator’s decease. It was holden that it was not the testator’s intent to limit a time of payment of any of the legacies, but only to provide that they should be paid with interest, and tc fix a time when the interest should commence.</p>

This was a scire facias against Mills, an inhabitant of Worthington, in the county of Hampshire, who had been summoned in a previous process of foreign attachment as the trustee of a debtor of the plaintiff, Wilcox. The former process, as well as the present scire facias, were brought in the county of Worcester, Mills being the only person summoned as trustee.

<p>This was an action of the case upon a policy of insurance, by which the defendants caused the plaintiff to be insured 12,800 dollars on a quantity of teas on board the ship Radius, at and from Neto York to Bremen, against the usual perils. The plaintiff demands damages as for a total loss.</p> <p>The cause came before the Court on a case stated, in which it was agreed that the policy was effected, as alleged by the plaintiff; that he was interested in the teas to the amount insured; that the ship sailed on the voyage insured, with the teas on board on freight, March 16th, 1806, and, on the 28th of April following, was captured by a British armed ship, sent into England, and there libelled as prize in the High Court of Admiralty; that, on the 20th of May following, a restoration of the ship was decreed to the master; that the cargo was unladen, and, on the 16th of June following, the said teas were decreed to be restored to Thomas Wilson, the claimant, who, on the 22d of the same June, received them in behalf of the owner, or of whomsoever it might concern, he being decreed to pay a certain proportion of the captor’s expenses, and also to give security to pay the master the freight of said teas, if the same should be decreed to him, which was afterwards done, and the freight paid him by Wilson; that, afterwards, on the 18th day of July, 1806, the plaintiff, having received intelligence of the said capture and detention, immediately offered to abandon his interest in the teas to the defendants, who refused to accept the same, the decree of restoration not being known to either of the parties, until after the 23d of September in the same year, on which day this action was commenced; that Wilson was the plaintiff’s correspondent in London, and, about the 19th of May aforesaid, had received advice from the plaintiff of the shipment of the teas to Bremen, and that, when sold there, the net proceeds would be remitted to him; but he had no authority or direction from the plaintiff to claim or dispose of the teas; but, concluding it would be most [ * 222 ] for the plaintiff’s * interest, and the former master refusing to take them on board, he shipped them on board a. Swedish ship for Bremen, on the 28th of July following; that the teas arrived safe at Bremen, were there sold, and the proceeds remitted to Wilson, who now holds them for the use of those to whom they may belong.</p> <p>If the Court should be of opinion that the plaintiff is entitled, upon these facts, to recover for a total loss, the defendants agreed to be defaulted, and that judgment be rendered for the plaintiff for the amount thereof, with interest from the 18th of September, 1806, and costs, deducting the premium, and one per cent., as agreed in the policy; if the Court should be of opinion that the plaintiff is entitled to recover for a partial loss only, the defendants agreed to be defaulted, and that it be referred to assessors, to be appointed by the Court, to ascertain the amount of such partial loss, on such principles as the Court shall prescribe, and that judgment be rendered for the plaintiff, for the amount so ascertained, with costs.</p>

<p>If an execution issue against an aggregate corporation, by the name of the president, directors, and company, &c., with directions to the officer, for want of estate, to take their bodies, the officer cannot arrest a member of the company by virtue of such execution</p>

Benjamin Smith, who was summoned in this action, September 8th, 1807, as the trustee of the defendant, Sheafe, disclosed, on his examination, the following facts, viz.: That he sailed in the month of February, 1807, in the schooner Boston, as master, with a cargo of sundry articles, belonging to Zadoc French, Henry Sheafe, and himself, one third each, to Martinique, where he arrived some time in March following; where he disposed of the cargo, with the exception of certain…

<p>This was a real action, tried at the last October term in Norfolk before Parker, J.</p>

<p>This was an action of assumpsit pending in the county of Hampshire. Upon non assumpsit pleaded, and issue joined, the cause was tried at an adjournment of the last September term at No7'thampton, before Sedgwick, J., and a verdict found for the plaintiff. The cause was continued nisi for judgment, upon a •motion of the defendant, in which he stated that since the issue was joined, but before the verdict was rendered, the goods, effects, and credits, of Kidd, the plaintiff, had been attached in his hands as trustee of Kidd, in divers suits, which he severally sets forth in his motion, and declares that the amount of the several sums due upon those suits exceeds the amount for which judgment can be rendered against him in this action.</p>

The plaintiff in error brought his writ to reverse a judgment rendered by W. Wetmore, Esq., a justice of the peace for this county, founded on a complaint of Hall, as clerk of a company of militia.

<p>A report of referees appointed pursuant to statute of 1786, c. 21, can be lawful.y made respecting no matters not contained in the agreement of submission.</p>

This was an action of the case upon a promissory note. ' The plaintiff alleged his damage at 200 dollars. At the court below, the defendant pleaded non assumpsit, to which the plaintiff demurred, reserving liberty to waive his demurrer, and join the issue tendered upon the appeal. The defendant joined in demurrer, agreeing to the reservation. Upon the appeal, the plaintiff withdrew his demurrer, and joined the issue tendered below.

<p>Assumpsit upon four several promissory notes, two of which were made by Fales payable to William Clap or order, and by him endorsed to the plaintiff, and the other two made by Clap payable to Fales or his order, and endorsed by Fales to the plaintiff.</p> <p>Upon non assumpsit pleaded, the cause was tried before Parker, J., at the last November term, and a verdict given for the plaintiff upon all the counts.</p> <p>It appears from the report of the judge, that with respect to the two first-mentioned notes, upon which the defendant was the promisor, no question arose.</p> <p>With respect to the two others, upon which Fales is sued as en dorser, questions were made, as to the demand upon Clap, and the notice to the defendant as endorser.</p> <p>One of these notes was payable in sixty days and grace, and the other in four months and grace; and the evidence was, that the messengers of the Branch Bank, and of the Boston Bank, in which these notes had been left by the plaintiff for collection, on the first of the days of grace left a printed notification, in the form used by those banks, at the store or place of business of Clap, giving them to a young man who conducted Clap’s business in his store, Clap himself being in town, and in the open course of business. But it appeared that the messengers did not carry the notes with them, but they remained on the files of the banks when the notifications were carried.</p> <p>The notice to Fales, the endorser, was given on the last of the days of grace; and it was proved that this was the mode of demand adopted and used by the banks, and that Fales had been accustomed to do business at those banks, by leaving notes for collection, and by paying notes left for collection by others.</p> <p>On one of the notes, which was in the following form, vis., —</p> <p>“ 680 dollars. Boston, 21 Oct., 1806.</p> <p>Value receiv’d I promise to pay Mr. Stephen Fales or order in sixty days and grace six hundred and eighty dollars.</p> <p>[Foreign Bills.] Wm. Clap.”</p> <p>* A question was made as to its negotiability, on ac- [ * 246 ] count of the words foreign bills being written as above.</p> <p>The verdict was taken subject to the opinion of the Court upon all these points; the defendant waiving his right of review, and agreeing that interest be calculated up to the time of judgment, and added to the sum found by the jury, if judgment should finally be entered upon the verdict; and the action stood continued to this term.</p>

<p>The declaration in this action was in case upon sundry promises, and contained the following counts: 1. Assumpsit for money had and received. 2. On a bill of exchange, as drawn by Samuel Colder on the defendant, and payable to bearer, with an averment that the plaintiffs are the bearers, of the acceptance of the defendant, &c. 3. On a bill of exchange, as drawn by Blandow and Company on the defendant, payable to the plaintiffs, and accepted by the defendant. 4. On a bill of exchange, as drawn by Samuel Calder on the defendant, payable to the plaintiffs, and accepted by the defendant.</p> <p>At the last November term in this county, the parties submitt/ l the cause to the opinion of the Court, upon an agreed statement, of facts, from which it appears that on the 19th of June, 1803, one Samuel Calder, who was master of the ship Martha Washington, then at St. Petersburg, of which ship the defendant was owner, drew a set of bills of exchange on the defendant, as follows, viz. —</p> <p>“ Bill of exchange for Ro: 25,000.</p> <p>“ St. Petersburg, 19 June, 1803.</p> <p>“ Six months after date, you will pay, for this, my second bill of exchange, the balance of the cargo I have received from Messrs. Blandow if Co., for your account, on board the Martha Washington, according to your letter addressed to me in date of March 16, of this year, the sum of twenty-five thousand rubles, payable a.t Amsterdam, at Messrs. Van Staphorst if Co.</p> <p>“ Signed, Samuel Calder.</p> <p>“ To Mr. David Pearce, Gloucester.”</p> <p>On the 23d of June, 1803, Messrs. Blandow Co. endorsed the said bills to the plaintiffs, who are the persons named therein, as follows: —</p> <p>“ Pay to the order of Messrs. Van Staphorst if Co. value in ac count. St. Petersburg, June 23, 1803.</p> <p>“ Signed, Blandow If Co.”</p> <p>* On the 8th of August, 1803, the plaintiffs, being [*259] holders of said bills so endorsed, sent one of the set to the defendant, enclosed in a letter, in which they request his acceptance thereof; to which the defendant replied by letter of Nov. 28, 1803, saying, “ The bills you hold in favor of Messrs. Blandow if Co. for the Martha Washington’s cargo, I am determined to discharge, by a shipment to you as early as possible in the spring. — The above-mentioned method of meeting these bills I hope will be agreeable.”</p> <p>March 16, 1803. The defendant wrote to Calder a letter, in which he instructs him what articles he is to obtain for his homeward cargo, and adds, “ What money you may want, you can draw for, which will be duly announced.”</p> <p>January 6, 1804. The plaintiffs wrote the defendant, acknowledging the receipt of a sum of money from Messrs. Damen if Van Olivier, in part payment, and urge a provision to be made for the balance of the bills remaining due.</p> <p>January 26, 1805. They acknowledge the receipt of a further sum, and add, “ The balance on the same, due to Messrs. Blandow if Co., and interest since the time this object ought to have been paid, we are requested by Messrs. Blandow Of Co. to claim from you, as they want to have settled this account.”</p> <p>Messrs. Blandow If Co. failed at St. Petersburg, and the defendant was summoned as their trustee in two several actions, in which they were defaulted, before the commencement of this action.</p> <p>And if, upon the facts stated, the Court should be of opinion that plaintiffs are entitled to recover in this action, the defendant agreed to be defaulted; otherwise the plaintiffs were to become nonsuit.</p>

This was an action of the case in assumpsit, commenced by a writ, dated April 9, 1805, and pending in the county of Norfolk.

<p>A grant to one, his heirs and assigns, of all the trees and timber standing and growing in a close forever, with free liberty to cut and carry tliem away at pleasure, conveys'an estate of inheritance in the trees and timber; and the grantee may maintain trespass quare clausum fregit against the owner of the soil for cutting down the trees.</p>

<p>Persons assessed for the support of public worship in a parish, who have a right to have their moneys paid over to a minister other than the parish minister, must notify the parish of cheir desire to have their moneys so paid over, and the minister must demand the moneys within a reasonable time after the assessment is made; and a year from making such assessment is a reasonable time ; but in particular cases the time may be extended.</p> <p>A person leaving the society in which the parish worship, and honestly and in good faith joining one of another religious denomination, is entitled to have his money paid over to the teacher on whose instructions he attends, although he may have no conscientious scruples on the subject</p>

The only question before the Court in this action, which was pending in the county of Plymouth, was, whether Fish was to be adjudged the trustee of Hunt, the defendant, upon his answers to the interrogatories.

In this action, which was assumpsit for sundry expenses incurred by the plaintiffs in providing for and burying sundry paupers alleged to have had their legal settlement in Dartmouth, the jury found a verdict for the plaintiffs by consent of the parties, subject to the opinion of the Court upon a case stated.

In this action, which was continued nisi from the last September term in Norfolk, the following opinion of the Court was delivered at this term by

<p>This was a writ of error brought in the county of Barnstable, to reverse a judgment of the Court of Common Pleas for that county, by which the settlement of the wife and two children of Stephen Snow, a pauper, was adjudged to be in Brewster.</p>

This was a writ of right to recover seisin of one undivided fifth part of a messuage and land therein described, alleging that the demandant’s father, Archibald M’Neil, was seised thereof within sixty years past, and that the tenants had no entry, except by Samuel Conant, who disseised the said Archibald.

This was an action of trespass, pending in the county of Norfolk, against the defendants, assessors of the town of Milton, in that, county, for a supposed illegal assessment of certain lands lying in Milton.

Assumpsit for money had and received. Upon the trial of the cause before Parker, J., at the last November term in this county, the following facts were in evidence, as appears from the judge’s report. The defendant was assignee of the estate, &c., of two bankrupts, viz., Ebenezer Lewis and Elijah Williams, on which estates two dividends were declared, one on the eighth of July, 1802, and the other on the twelfth of September, 1803.

<p>Error to reverse a judgment of the Court of Common Pleas for the county of Plymouth, August term, 1806, rendered upon the complaint of the plaintiffs in error, in which they prayed that the legal settlement of Thomas Seymour, a pauper, and his wife, might be adjudged to be in Boston.</p> <p>The evidence in the case, as stated in the Common Pleas pursuant to the statute, was, “ that the said Thomas Seymour, the pauper, was born in Boston, in September or October, 1743 ; that his father was a native of England, and his mother of Rhode Island. The father lived in Boston at the time of the birth of the pauper, and previous thereto, and died there. Some time after, the pauper lived in Boston, Dorchester, and Braintree, until he was fifteen years of age, when he entered as a soldier in the provincial service against ihe French. In 1763, he was discharged from the service, returned * from Nova Scotia to Boston, resided [*313] there two or three days, and from thence went to Barn-stable, in the county of Barnstable, where he engaged in the business of a mariner, in the whale fishery, in West India and coasting voyages. He continued in Barnstable about two years, boarding with a Mr. Fuller, a selectman of that place, when on shore, which did not exceed six weeks or two months at any one time. He then removed from Barnstable to Sandwich, where he continued following the same business as at Barnstable. He made his home at Sandwich until some time after the year 1767, during which time he once resided on shore at Sandwich six months at one time, being confined with a wound in his leg.</p> <p>The said pauper was not warned to depart from either of the towns of Barnstable or Sandwich, during his residence in those towns respectively.</p> <p>Upon these facts, the Court of Common Pleas adjudged that the legal settlement of the pauper and his wife was not in the town of Boston.</p> <p>To reverse this judgment, and to obtain a judgment of this Court that the settlement of the said pauper is in Boston, this writ of error s brought.</p>

<p>The town of Randolph has no claim to a share of the avails of the fishery in Brain tree, of which it was formerly a part.</p>

<p>The Probate Court, m adjusting the account of an executor or administrator, is competent, having satisfactory evidence before it, to require an allowance of assets not inventoried or credited.</p> <p>It is doubtful whether the provision in Stat. 1783, c. 32, § 12, extends to executors and administrators. If it does, it extends only to an examination for the purpose of discovery.</p> <p>When an executor, or administrator, refuses to return an inventory; or, being summoned, and in answer to interrogatories, denies that any personal estate of the deceased has come to his hands, the only remedy, for those claiming benefit from the estate, is by action at law, on the bond of the executor or administrator.</p>

<p>This was an action of assumpsit, for money had and received, and upon trial before Parker, J., a verdict was taken for the plaintiff, subject to the opinion of the whole Court, upon a report of the case by the judge who sat on the trial.</p> <p>From that report it appeared, that on the 26th of November, 1793, the defendant chartered his brigantine, Jerusha, to F. W. Geyer 8f Son, for a voyage from Boston to the West Indies, and back to Boston, or from the West Indies to any port or ports of .Europe, (the straits excepted,) and back to Boston, where she was to be discharged, dangers of the seas excepted. In consideration of which, Geyer Son agreed to pay, in full, for the hire of said brigantine, 1001. lawful money per month, so long as she should be continued in the aforesaid service, in thirty days after her return to Boston, and they were to pay light money and other port charges during said voyage, and to deliver said brigantine, on her return tc Boston, to the owner or his order. The brigantine was loaded, and sailed, December 5th, 1793, for Guadaloupe, where she arrived on the 27th of the same month, and was discharged of her cargo on the 8th of January, 1794. Part of the outward cargo having been sold, and part of another cargo laden on board for Hamburg, on the 12th of April, 1794, the vessel and what cargo was on board, were taken by the British fleet, under Admiral Jarvis. The defendant demanded of Geyer fy Son, and in January, 1795, they paid to him the hire until the capture, which for four months and a half, the time she had been in the service of the charterers, amounted to 1500 dollars.</p> <p>Before the commissioners in England, sitting under the treaty of London, the said Bradford’s agent claimed compensation for his brigantine and freight, according to the charter-party ; and Geyer Sf Son claimed for the cargo. Both claims were al[*327] lowed, viz., to Bradford 4000 dollars for *his vessel, and 1500 dollars for the freight; and to Geyer &f Son the value of her cargo on board at the time of the capture, with interest on the several allowances, through the instalments. But said Geyer &f Son lost a great part of their said cargo, which was on shore, by means of the capture of the said island, for which no allowance was made by the commissioners. The compensation for the freight was claimed by the agent of Bradford without his knowledge, he apprehending that he had only claimed for his vessel.</p> <p>This action was brought to recover the money received by Bradford on the first payment or instalment of the award of said commissioners made for the freight aforesaid, for which sum and interest the verdict was rendered.</p> <p>The judge instructed the jury that Bradford, in consequence of the above capture, had a just claim on the British government under said commission, for the freight of his vessel due to him at the time of capture, according to the charter-party ; and that it was probable that he and said Geyer if Son conceived that they, the said Geyer Son, were also liable under the charter-party to pay for the same, and that under that idea they accordingly paid it; that Bradford’s claim on the commissioners had probably gone forward prior to his receiving the money from Geyer if Son ; that when Bradford had obtained the money under the commission, he must be considered as having received it to the use of Geyer if Son.</p> <p>It appeared on the trial to be the rule of the commissioners to estimate the net value of the cargo at the port of destination, meaning the value there after deducting the freight, and it was agreed that Geyer & Son’s cargo was so settled.</p> <p>The judge observed further that it was presumable that the commissioners considered parties and claims as they stood at the time of capture; at which period the defendant had a right to claim for his own use, but afterwards, on payment by Geyer if Son, he must be considered as maintaining his claim in trust for them.</p> <p>There was also a letter from Bradford, dated October 7th, 1803, in these words: “Mr. F. W. Geyer, — I have just received letters from Mr. Williams, in London, stating the amount of award decreed me in the case of the Jerusha, * with [*328] permission to draw on him for the first instalment; but as there is nothing in the statement respecting freight, and I never having claimed any thing of that kind, I presume the award is only for the vessel. I am, sir,” &c.</p> <p>Upon the whole, the judge gave his opinion to the jury in fav.or of the plaintiff. The defendant now moved for a new trial, on the ground of misdirection.</p>

<p>Covenant broken apon a policy of insurance upon the plaintiff’s dwelling-house, alleging that it was consumed by fire in December, 1801.</p> <p>[*331] *The defendants pleaded three several pleas in bar, upon the replication of the first of which issue was joined, and a verdict found for the plaintiff.</p> <p>In their second plea, the defendants acknowledge the making the policy, as declared on, and the destruction of the house by fire without design in the insured, in the manner alleged by the plaintiff; but they further say, that after making the policy, and before the fire took place, viz., on the 11th of December, 1800, the plaintiff conveyed one half in value of the said house to one Thomas Harris, to hold the same in fee simple, saving the term of seven years, which the plaintiff reserved therein, which said term, he, on the 12th of the same December, assigned to the said Harris and one Lewis Gorham, so that the plaintiff, at the time the said house was consumed, was not the owner thereof according to the form and effect of the policy, and of the roles of said company. And afterwards, viz., on the 12th of January, 1802, certain trustees of said company, according to the roles thereof, taking the premises into consideration, and being well advised thereof, declared the said policy to be null and void, and the said policy thereby, according to the roles of the company, became void, the said declaration of said trustees having been duly made and accepted.</p> <p>To this plea the plaintiff replies, and confessing the making of the deed to Harris, alleges that, at the time of making the same, the said Harris conveyed the same estate to the plaintiff by mortgage, conditioned for the payment of a certain sum of money, which, the plaintiff avers, was not paid pursuant to the said condition, nor at any other time. The plaintiff then sets forth a lease from him tc Harris and Gorham, of the estate described in the plaintiff’s conveyance to Harris, for the term of seven years from the 12th of December, 1800, reserving a rent to be paid quarterly, with a right of reentry in case of non-payment of the rent.</p> <p>To this replication the defendants demur generally, and the plaintiff joins in demurrer.</p> <p>In their third plea, the defendants allege that, before the making of the policy declared on, the plaintiff, in his proposal for insuring his house, described it, in its relative situation * as to other buildings, as connected on one side only, [ * 332 ] and declared that it was in fact so situated, and in consequence thereof the premium was agreed upon, and the policy was made ; but afterwards, on the 20th of the same December, a certain framed building was erected on ground adjoining the said house belonging to the plaintiff, and was joined to the said house, so that the same house thereby became connected in relation to other buildings on two of its sides, and the risk of fire to the same was thereby rendered greater ; and that at the time of the fire aforesaid, the said framed building was burnt with the house. The plea then sets forth the declaration of the trustees that the policy was void, in the same terms as in the second plea.</p> <p>To this plea the plaintiff replies that, after the policy was made, and before the premises were destroyed by fire, they were not repaired, or enlarged, or altered, in such a manner as to render the risk of their being consumed by fire greater.</p> <p>The defendants demurred to this replication, and the plaintiff joined in demurrer.</p> <p>[The following articles of the company are referred to by the counsel or the Court, viz.: —■</p> <p>Art. 6. The trustees shall have power—to declare any policy • null and void, in all cases where the insured shall have repaired or enlarged a building, or have appropriated the same to other purposes than those mentioned in the policy, thereby rendering the risk greater; unless the assured will add to his premium, and deposi. such a sum as shall be deemed by them to be an equivalent.</p> <p>Art. 7. The president and directors shall appoint one or more agents, in such towns within the commonwealth, as to them may seem proper. They shall have power, and it shall be their duty, to value any building, to describe the materials of which it may be built, the use to which it is applied, and its situation, as it respects other buildings. They shall estimate its rate of hazard, and certify the same in writing, &c.</p> <p>Art. 8. No alteration in terms of insurance shall be made, on account of a building’s being made more or less hazardous, by means not under the control of the insured</p> <p>[ * 333 ] * Art. 18. When a building insured shall be alienated by death, sale, or any other means, the insured, his, her, or their representatives, may surrender his, her, or their policy or policies, and receive a sum not exceeding their deposit money.</p> <p>Art 23. No transfer of a policy shall operate to discharge the person insured from his obligation to fulfil the conditions of said policy, until said transfer be entered in the books of said company.]</p>

<p>Case on a bill of exchange by the endorsee against the endorser. Upon trial at November term, 1806, in this county, before Parker, J., a verdict was found for the plaintiff for the amount of the bill, damages, and interest; to be set aside and a new trial granted, if the Court should be of opinion, upon the facts in the case, or they should be reported by the judge, that the plaintiff was not entitled to recover.</p> <p>Those facts were as follows: —On the 20th of February, 1804, Samuel Ham, of Portsmouth, in the state of New Hampshire, drew his bill of exchange for 500Z. sterling on Messrs. Thomas Dickason éf Co., in London, payable to the * defendant [ * 342 j or his order at sixty days’ sight. The defendant endorsed the bill to the plaintiff, who sent it to his correspondents, Messrs. Cotterells, in London, who, on the 28th of April following, presented it for acceptance, which was refused for want of effects, and the bill was duly protested for non-acceptance.</p> <p>On maturity of the bill, viz., June 30, 1804, it was presented for payment, and refused for the same cause which was assigned for not accepting it.</p> <p>On the 18th of August, the plaintiff received the protest for non acceptance in a letter dated at Birmingham, May 2d, and sent by the way of Philadelphia.</p> <p>* On the 3d of September, 1804, the plaintiff’s [ * 343 ] agent called on the defendant in Portsmouth for payment of the bill, &c., and presented the protest for non-payment only. The defendant observed to the agent that this was the first information he had received of the bill’s being protested ; that he had not been notified of its being protested for non-acceptance; that he was not prepared to meet the payment; but that in a few days he would look round, and make preparation for the settlement of it, and other expressions to the same purport. On the 7th of September, being again called on by the plaintiff’s agent, he said he had consulted counsel, and now considered himself exonerated from the demand, on account of his not having received notice of the protest for non-acceptance. These last facts were shown by the deposition of Benjamin Penhallow, the agent alluded to.</p> <p>Ham. the drawer, stopped payment between the 27th of February and the 8th of March, 1804, and on the 14th of April, following, left PorUmouth, and had not returned at the time of the trial. On the 10th of June, 1804, his household furniture was attached, and after-wards sold upon execution. His farm and stock were attached on the 2d of March, and execution was afterwards levied thereon.</p> <p>Under these circumstances, it was contended for the plaintiff on the trial, that no damage happened to the defendant in consequence of the delay of notice to him of the non-acceptance or non-payment of the bill, and that his promise to the plaintiff’s agent to settle and pay the same was sufficient to entitle the plaintiff to recover.</p>

<p>The widow of a deceased intestate is exclusively entitled to the administration of his estate, unless there be among his next of kin a suitable person, whom the judge of probate may think fit to join with her in the trust, or to commit administration solely.</p>

This was a petition for a review. The petitioner, in support of his application, offered his own affidavit, that since the former trial he had learned that a certain witness would have testified to facts, which were material in his defence, and that at the time of the trial he was ignorant of this circumstance.

<p>In an action upon a covenant of warranty of lands, the Court will receive pinol evidence of an ouster.</p> <p>And the plaintiff will recover in such action, though he may have voluntarily yi-dded to a dispossession; provided the title to which he yielded he good and paramount to that of his warrantor.</p> <p>But in such case the burden of proof will be on the plaintiif. If the eviction be by a judgment at law, such judgment will be plenary evidence, unless it was obtained by fraud.</p>

<p>This was a writ of entry, wherein the plaintiff declares that the said Prince, on the 23d day of September,. 1803, was seised in fee of the premises demanded, and being so seised, by his deed of that date, duly executed and recorded, for the consideration of 500 dollars, conveyed the same to the plaintiff, to hold in fee and in mortgage, and that he ought to be in quiet and actual possession of the same; but that the said Syhanus had, since that time, entered into the premises, and still holds possession thereof from the demandant.</p> <p>[ * 355 ] *Upon the general issue pleaded, the cause was tried at the last October term in this county, before Thatcher, J., and a verdict taken for the defendant, subject to the opinion of the Court, upon a report of the evidence to be made by the judge; it being agreed that if the Court should be of opinion that the verdict was wrong, it should be set aside, and judgment be entered against the defendant upon his default, as in case of a mortgage.</p> <p>The deed was produced at the trial, and its due execution was admitted by the defendant, as also the note mentioned in the deed for 500 dollars, payable in two years from September 23, 1803. On the part of the plaintiff, it was admitted that the witness to the execution of the deed saw no money paid, and did not know that any had been paid. Several of the plaintiff’s witnesses testified that, after the making of the mortgage, Prince applied to them to induce them to buy a part of the mortgaged premises, and said that the money would answer for the plaintiff as well as the land. The widow of Prince testified that she knew that her husband, both before and after making said mortgage deed, had frequently received sums of money of the plaintiff; and that, about the time when the mortgage deed purports to have been made, he came home on a certain day, and said he had been to make a mortgage of his wood lot, and of the lot on which he lived, to the plaintiff; that about the same time, she saw her husband have in his hands a number of papers, which appeared to have been notes made by him to the plaintiff, having pieces torn out of them in the places where the signature is usually made; and that on asking him what they were, he said they were the notes which he took up when the mortgage was made ; that in the fall of the year 18.04, she knew he was endeavoring to procure money by the sale of the mortgaged premises, to pay the plaintiff what he owed him, and that the notes aforesaid, with the signatures torn off, were, after his decease, delivered to the defendant.</p> <p>On the part of the defendant, several witnesses testified to conversation at different times with the plaintiff, after the making of said mortgage, in which he informed them that he never gave [ * 356 ] any valuable consideration for said mortgage deed * or note, and that they were intended only as a cover to secure the premises from certain creditors of the said Prince. The plaintiff objected to the admission of this evidence; but the ohjection was overruled. The defendant also produced a copy of his administration account, settled in the probate office on the 8th of July, 1807, from which it appeared that the personal estate of said deceased, in the hands of the defendant as administrator, exceeded the amount of claims paid, or then existing against said estate, in the sum of 159 dollars 97 cents. But it appeared that the costs already arisen in this cause exceed said sum; that the real estate, for which this action was brought, was inventoried as the estate of said Prince; and that the said estate was under a commission of insolvency when this action was commenced.</p>

<p>The Sessions have no authority to extend the limits of the jail-yard beyond the land of the county, with the highways adjoining or leading to the prison.</p> <p>If a debtor in prison, having the liberty of the yard, be suddenly seized with illness in the highway, and be necessarily carried to a private house, this is no escape within the condition of his bond, if he return to the" prison as soon as he has reason and strength, or if he die before.</p>

Assumpsit on a promissory note subscribed by the defendants, payable to Philip Page or order, and by him endorsed thus: “ For value received, pay the contents to Richard H. Ayer, I being no way liable as endorser.” Upon non assumpsit pleaded, a trial was had before Thatcher, J., at the last October term in this county.

<p>This was an action upon a policy of insurance upon freight, and was tried May term, 1806, before Sewall, J. A verdict was found by consent for the plaintiff, subject to the opinion of the Court upon the report of the judge. The substance of that report is recited in the opinion now delivered by the Chief Justice, the cause having stood continued to this term, and having been submitted to the Court without argument.</p>

<p>This was a writ of error, brought to reverse a judgment of a justice of the peace, imposing a fine of five dollars thirty-three cents, upon the plaintiff in error, for his non-appearance at a muster of a military company to which he belonged.</p> <p>The error assigned is, that at the time of rendering the said judg ment, the plaintiff" in error was an infant, and under the age of twenty-one years; and the same judgment was rendered against him by default, without his having any guardian appointed, as by law he ought to have had.</p>

<p>The remedy against a public officer, for neglect or misbehavior, may be by an action of the case alleging his misdemeanor, or by an action of debt, according to the nature of the misfeasance, but never by assvmpsit, as on an implied promise to do his duty.</p>

<p>Military fines.</p>

<p>A seisin of a freehold estate m right of his wife is sufficient to give one a settlement under statute of 1789, c. 14.</p> <p>No settlement could be gained in any town under that statute by residence and payment of taxes for five years, the statute not having continued so long in force.</p> <p>Before the statute of 1793, c. 34, when a new town was formed of part of an existing one, the settlement of persons absent at the time of the incorporation of the new town continued in the old town, though their former dwelling was in that part, of which such new town is formed.</p>

The defendants were indicted at this term for the wilful murder of Ebenezer Parker. Held: towards the door, and it fell about two feet distant from it; that Drew, after throwing the sledge at King, returned to the shop door, and saw the bludgeon lying there ; that he reached in his hand, and took the bludgeon, and turned to the deceased, who had pushed the door partly forward, had come from behind it, and was standing…

The declaration was in case, “ for that the said R., at, &c., in consideration that the plaintiff would discount 31 dollars out of a sum of money then and there due from said R., to the plaintiff, for land before that time by the plaintiff sold and conveyed to the said R., to the amount of more than 31 dollars, undertook, and faithfully promised the plaintiff, provided he would take and receive of said R. a certain note of hand, then and there in possession of said R.,…

<p>Upon an issue of nul tiel record upon a judgment of the Common Pleas, this Coun does not direct the original record to be sent up, but receives copies attested by tire clerk.</p> <p>When goods sufficient to satisfy a judgment are seized on execution, the debtor is discharged, although the sheriff waste the goods, or misapply the money arising from the sale of them, or does not return the execution. But if the execution be extended on the debtor’s land, his title is not affected, until seisin is delivered to the creditor; and the title of the latter is not complete, until the return is made of the extent and delivery of seisin.</p>

Replevin for seventy-seven boxes of candles, which the defendants, as officers, had attached as the property of Todd and Worthley, at the suit of certain of their creditors.- Upon trial at the last October term in this county, before Thatcher, J., it was agreed that the demands of the said attaching creditors were just, and existed before the making the after-mentioned contract between the plaintiffs and the said Todd and Worthley.

<p>A plan of land taken ex parte cannot be used on a trial but as chalk.</p> <p>One in possession of land, claiming to hold it in fee simple, is sufficiently seised to enable him to convey ; and, if he warrant the land, no action lies against him on his covenant of warranty, until an eviction of the grantee, or his assigns, by a paramount note.</p>

<p>When a sheriff has arrested a debtor in execution, and committed him to prison, and the debtor afterwards takes the benefit of the poor prisoner’s act, the sheriff is entitled to demand and receive his fees of poundage and travel of the judgment creditor.</p>

Assumpsit by the endorsee against the maker of a promissory note, dated February 16, 1804, payable, in one year from the date, to Benjamin Dow, and by him endorsed to the plaintiff, on the 12th day of July, 1805.

<p>When one enters on land, claiming a right to it, and gams a seisin hy his entry, his seisin shall extend to tire whole parcel to which he claims a right; but when one enters without claiming a right, his seisin cannot extend further than his actual occunation.</p> <p>To constitute a disseisin of the owner of uncultivated lands, the entry and occupotion of the disseisor must be such, that the owner may be presumed to know that there is a possession adverse to his title.</p>

<p>In trespass quare clausum fregit against several, where the evidence was of three distinct trespasses, each of which was committed jointly by some of the de fendants only, (all of them being on the close at the same time,) part of them were defaulted, and part pleaded not guilty; the damages for each trespass were rightly assessed jointly against those who jointly committed it; and the damages against the several trespassers were rightly assessed severally,</p> <p>n such case, costs are to be taxed jointly against all the defendants.</p>

<p>This was an action of the case, wherein the plaintiff declared that there was a public highway leading through the town of Water-ville, which by law the inhabitants of that town were bound to keep and maintain in good and sufficient repair; and that, on the 28th of October then last past, the plaintiff’s mare, in passing and travelling in said public highway, through a defect and want of necessary repair of a pole bridge or causeway in the same, fell down and broke one of her legs, whereby she became of no value to the plaintiff; of which defect, &c., the inhabitants aforesaid had notice; whereby they became liable to pay the plaintiff double the value of the said mare, &c.</p> <p>Upon not guilty pleaded, the cause, was tried at the last September term, before Thatcher, J., and a verdict being found for the plaintiff, the defendants moved for a new trial, because the judge refused to admit certain evidence offered by them at the trial, as would appear by the judge’s report.</p> <p>This report states that the plaintiff gave evidence of the facts set" forth in his declaration. And the counsel for the defendants moved the Court to give evidence that the plaintiff was surveyor of the highways in said Waterville, for the year when the injury com plained of accrued, and that the part of the highway where, &c., was legally assigned to the plaintiff. This evidence the judge rejected.</p> <p>There was also a motion in arrest of judgment, for certain supposed defects in the declaration; but this motion was not urged, nor was any decision had upon it.</p>

In an action of the case, the plaintiff declares that the defendants were partners in the way of merchandising, jointly negotiating together, particularly in the purchase and sale of divers tracts of land for their mutual profit and advantage; and being so partners as aforesaid, the said Waugh, at a day and place named, for value received, made a certain note in writing of that date, and with his hand subscribed, and thereby, for himself and the said Greeley, promised the…

Debt upon bond. Upon oyer of the bond and condition, the latter is recited as follows, viz.: “ The condition of the foregoing obligation is such, that whereas the said Williams and Smith have agreed to sell and convey to the said Fairfield a certain piece or lot of land situated in the town of Winslow, described as folioweth, &c.: Now, therefore, if the said Williams and Smith, in their said capacity or otherwise, shall make and execute to the said Fairfield, his heirs and…

<p>A plea in bar to an action of debt on bond, which admits the plaintiff’s right to part of the debt, is bad.</p>

<p>This was an action of debt upon the statute of 1797, c. 70, in which the plaintiff, one of the fish wardens of the town of Water-ville, who sues as well for the county of Kennebeck as for himself, alleges that the defendant, at Winslow, in said county, on the 31st day of May, 1807, the same being Sunday, took seven thousand and two hundred alewives in the River Sebasticook, running through the said town of Winslow, contrary to said statute, whereby he has forfeited twenty cents for each of said fish, amounting, in the whole, to the sum of eighteen hundred dollars. Yet though requested, &c.</p> <p>The defendant pleads, in bar of the action, .that at the Court of Common Pleas in this county in December- last, the plaintiff impleaded one Jedidiah Morrill, in a plea of debt, &c., [the declaration being exactly similar to that in the present action,] and recovered judgment against the said Morrill for the sum of fifteen dollars and twenty-five cents debt and costs of suit, which judgment remains in full force and unreversed, and which the said Morrill has fully paid and satisfied; and then avers that the taking of the fish described and mentioned in the plaintiff’s declaration against the said Morrill, is the same taking of the fish described and mentioned in the plaintiff’s declaration in this action, and that the defendant was jointly concerned with the said Morrill in the said taking of the said fish, and not otherwise, and this he is ready to verify; wherefore he prays judgment, &c.</p> <p>The plaintiff demurs generally, and the defendant joins in demurrer.</p>

<p>A creditor gives his debtor a license for two years, and in the letter of license covenants that he will not sue, &c., and that if he shall sue, the debtor shall be discharged of his debt; notwithstanding which, he sues within the two years, and the debtor pleads the letter of license in bar, and has judgment; he cannot afterwards maintain an action against the creditor on the covenant.</p> <p>No action lies for damages sustained by being sued in a civil action, unless such an action was malicious and without probable cause.</p>

This writ of error was brought to reverse a judgment of the Court of Common Pleas for this county, in an action originally commenced before a justice of the peace, and carried, by appeal, to the Common Pleas. The original action was assumpsit, sued by the defendant in error against the plaintiff in error, as he was guardian of one George Fitzgerald, a spendthrift. The declaration was upon a promise of Fitzgerald.

<p>In an action against a sheriff for extortion, in receiving illegal fees on the service of an execution, a declaration which describes the parties to, and the date of the execution, is sufficient after verdict So, if it shows the sum received as fees, and the sum levied, without setting forth the whole transaction.</p> <p>If the date of an original writ is posterior to the date of the service, this, being matter in abatement, is waived by the defendant’s appearing and pleading the general issue.</p>

The defendant and two other persons were indicted on the fifth section of the statute of 1804, c. 123, for assaulting and shooting at one Moses Robinson, with the intent to murder him. The defendant, having been apprehended, was tried before the Chief Justice during the present term, and was convicted. After the verdict, he moved in arrest of judgment, because the offence was not charged to have been committed feloniously, as it ought to have been.

<p>The grantor of land, who covenanted in his deed that he had good right, Azc., to sell the same, and that he would warrant the premises against all persons claiming them under the grantor, is a competent witness for the grantee in an action brought by him for the land against one who does not claim to hold under the same grantor.</p>

<p>If the tenant in a writ of entry, whereby a freehold is demanded, pleads the gen eral issue, he thereby admits himself to be tenant of the freehold, and is es topped from proving that he is tenant at will only.</p> <p>A writing without seal cannot operate as a defeasance of deed under seal.</p>

<p>A committee of the Court of Session for locating a highway, report a sum to be paid as damages to A B, without showing by what town it is to be paid, or in what town the way is. The Sessions accept the report. Afterwards, on the petition of A B, they order the damages to be paid by the town of C before the next term, or a warrant of distress to issue. Upon motion of the town of C, the proceedings on the petition only were brought before the court upon a certiorari. The court quashed the certiorari, as having issued improvidently.</p>

<p>This action was submitted to the opinion of the Court, without argument, upon the report of Thatcher, J., before whom it was tried at the last September term in this county, and a verdict rendered for the defendants. The facts will appear in the opinion of the Court, as delivered by</p>

The only question, in this cause, was, whether Thompson, the supposed trustee, had in his hands any goods, effects, or credits, of the principal defendant, at the time of the service of the writ upon him.

The declaration was “ a plea of the case for that at, &c., on, &c., the said Weeks, by his note in writing, of that date, by him subscribed, for value received, promised one J. K. K., to pay Him or bearer seventy-five dollars, payable, on, &.c. And the plaintiff is the bearer of said note; yet, though often requested, the said Weeks has not paid said sum, but refuses to do it; to the damage,” &c. To this declaration the defendant demurred generally, and the plaintiff joined…

<p>This was a writ of error brought to reverse a judgment of the Court of Common Pleas of this county, respecting the settlement and support of a pauper. The suit was originally commenced before a justice of the peace, from which it was removed to the Common Pleas, who stated the following facts as the foundation of the judgment afterwards rendered, viz.: —</p> <p>“ That Mary Binkley, the pauper, was born in the town of Brunswick, July 19th, 1763; that in 1772, Gideon Binkley purchased an estate of freehold, in the town of Bath,† and removed with his family (Mary, the pauper, being one) into the said town, in February, 1774, and continued, with the said Mary in- [ * 453 ] habitants of Bath, until the latter * part of February, 1781 ; that on the 2d day of February, 1781, the said Gideon sold his .estate in Georgetown; that on the 17th of the same February, the second parish in the town of Georgetown was incor porated into a town by the name of Bath; that in the latter part of the same February, the said Gideon, with the said pauper, removed from the town of Bath, and it does not appear that the said pauper has gained a settlement in any town since her removal from Bath as aforesaid.”</p> <p>The Court of Common Pleas adjudged the lawful settlement of the pauper to be in Bath, and ordered her to be removed thither, and that the town of Bowdoin should recover against the town of Bath the sum of twenty pounds twelve shillings, for expenses in supporting said pauper from December 20, 1793, to April 5, 1795.</p> <p>The cause was submitted to the Court without argument.</p>

<p>The month within which an appeal from the Probate Court must be claimed, is a calendar month.</p> <p>Of the revocation of a will.</p>

<p>This was an action of the case upon an account annexed. The account consisted principally of charges for goods sold and delivered, at sundry times, from July, 1797, to April, 1799, by the plaintiff’s intestate, to the defendant; besides which, several sums of money are charged as paid to sundry persons by order of the de fendant, and one article in the account is a charge of four years’ rent of certain marshes.</p> <p>Upon the general issue joined, the action was tried, at June term, 1806, before Thatcher, J., and a verdict found for the plaintiff.</p> <p>At the trial, the plaintiff, to maintain the issue on her part, offered J. Nelson. Esq., as a witness to prove that a certain paper produced by him, and of which the account annexed to the writ was a true copy, was left with him to be put in suit, and that the same was in the hand-writing of Joseph * Prince, the' [*456] plaintiff’s intestate, and that thereupon he, the said Nelson, commenced the present suit. The plaintiff also offered evidence to prove that the dwelling-house of the said intestate was burnt after the commencement of the present action, and the said intestate, with his books of account, therein consumed. The defendant proved that during a considerable part of the time, when the charges in the said account purport to have been made, the intestate had a person in his employment, who was known, at different times, to assist him in delivering articles to the customers.</p> <p>To the admission of the foregoing evidence the defendant objected, and insisted that the plaintiff ought to be held to produce the persons employed by her intestate as his assistants.</p> <p>The judge overruled the objections, and admitted the evidence, which was all that was produced by the plaintiff, and instructed the jury that the said evidence was competent for them to consider in support of the issue submitted. The defendant filed his exceptions to the opinion of the judge, and upon that ground moved fat a new trial. And now, at this term,</p>

This cause originated in a complaint instituted by one jFrancis Jleare, before a justice of the peace for this county, October 23, 1805, charging that the defendant “ did, at Egremont, in said county, on the 13th day of the same October, being Sunday, or Lord’s day, with force and arms, do and perform labor, work, or business, (not work of necessity or charity,) to wit, did travel to and upon the turnpike called the twelfth Massachusetts turnpike, near the dwelling-house of…

<p>In a qui tom action tor the penalty inflicted by statute 1788, c. 65, for a rescous the defendant cannot give in evidence the illegality of the distress.</p> <p>The owner of a close is not obliged to fence but against cattle lawfully in the adjoining ground; and if all his fence be insufficient, yet if cattle do not escape through the insufficient fence, but are turned in, he may lawfully distrain then damage feasant</p>

<p>This was a writ of error brought to reverse a judgment of the Court of Common Pleas of this county, rendered in an action suéd by the plaintiff in error against the defendant, for not delivering him twenty-seven ash barrels, agreeably to the defendant’s promissory note in writing.</p>

The defendant being arraigned on an indictment for an assault and battery, and being inquired of by the clerk, whether he was guilty or not guilty, said that he was guilty, but added that he had himself informed a justice of the peace for the county of his offence, by whom he had been sentenced to pay a fine, &.c.

<p>The writ on which this action was founded, bore date April 6, 1808, and was returnable at the term of the Common Pleas then next, viz., on the third Monday in May.</p> <p>The return of the officer was as follows: “ Hampshire, ss., April 14, 1808. By virtue of this writ, I summoned the inhabitants of Chester, by reading to them the within in their hearing; and I gave a copy of the within to Sylvester Emmons, Esq., one of the principal inhabitants of Chester, for their appearance as the law directs.</p> <p>“ Newcomb Cleveland, Dep. Sheriff.”</p> <p>“ And the said inhabitants come, &c., and pray judgment if they ought to be held to answer to said Slayton’s writ aforesaid, because they say that a copy of the said writ was not left with the clerk of said town of Chester, or with one or more of the principal inhabitants thereof, thirty days before the day of the sitting of the Court, into which the same was returnable ; and this the said inhabitants are ready to verify ; wherefore they pray judgment of the said writ, and that the same may be quashed, and for their costs.”</p> <p>To this plea in abatement the plaintiff demurred, and assigned the following causes of demurrer: “ 1. Because the said inhabitants, ;n their said plea, do not pray judgment if they shall be held to answer to the said writ of the said Ebenezer. 2. Because the said inhabitants, in their said plea, do not allege that no copy of said writ was left with the clerk of said town of Chester, or with one or more of the principal inhabitants thereof, thirty days before the sitting of the Court, into which the same writ was returnable by the said N. C., who served the same writ, and has made his return thereon. 3. Because it appears by the said writ and the return thereon, that a copy of the same was left with one of the principal inhabitants of Chester thirty days before, &c., and the said inhabitants ought to be estopped from averring that no copy was left with one of the said principal inhabitants. 4. Because the said plea is uncertain and informal.”</p>

<p>The action of replevin survives the death of the plaintiff, but not of the defendai h</p>

<p>A writ of error does not lie to reverse a judgment against a defendant out of the commonwealth, because the plaintiff sued out his execution without giving bond pursuant to the statute 1797, c. 50.</p>

This was assumpsit for meat, drink, &c., furnished to Jahez Dunham and his wife, alleged by the plaintiffs to- be paupers, having their legal settlement in Granville. The cause came before the Court upon a case stated by the parties, in which the only question submitted was, whether the paupers were settled or not in Gran-ville. The facts, as far as they are material to the question, will appear in the following opinion of the Court.

This was an action of indebitatus assumpsit for money had and received.

<p>Upon a father’s gaining a new settlement, a child of full age, voluntarily .iving with him, does not gain such new settlement within the statute of 1793, c. 34, § 3, mi. 3.</p>

The defendant was brought into Court by the keeper of the jail in this county, in obedience to a writ of habeas corpus cum cama, which had issued to him on motion returnable instanter. From the jailer’s return, it appeared that the defendant was committed by a justice of the peace for the county, for not finding sureties of the peace.

<p>n an action against a sheriff for not seizing upon execution chattels which he had attached on the original writ, it is a good defence that such chattels were the property of strangers, and not of the debtor.</p>

<p>Trover for two steers. Upon not guilty pleaded, the action was tried at an adjournment of the last September term in this county, before Sedgwick, J.</p> <p>Upon the trial, it was agreed that the defendant had converted the steers to his own use. To prove the plaintiff’s property, it was in evidence that the plaintiff and defendant had agreed to exchange horses; and that the bargain was, that the defendant agreed to deliver the steers, and a note of one Phillips, together with his own horse, to the plaintiff, and was to receive the plaintiff’s horse, and to have his own note, which the plaintiff held, delivered up to him; that the bargain was executed, the plaintiff selling his horse as a sound one, and the defendant agreeing to pasture the steers a week for the plaintiff.</p> <p>* The defendant, finding the horse he had received [*503] was unsound, and having evidence that the plaintiffknew this at the time of the exchange, returned the horse, and refused to deliver the plaintiff the steers. Since the commencement of this action, the defendant had instituted a suit against the plaintiff for selling him an unsound horse as a sound one, and this suit was pending at the time of the trial.</p> <p>The defendant offered to give in evidence, in his defence, the plaintiff’s fraud in the exchange of the horses, and his having returned the plaintiff’s horse, thereby to defeat the plaintiff’s property in the steers, which had been given as boot. This evidence was rejected by the judge, and the jury were directed that, if they believed the contract between the parties to be an entire one, and that it was a contract operating, according to the true intention of the parties, as a sale of any of the articles, which were the subjects of it, then the property of the steers was thereby vested in the plaintiff, and he was of course entitled to recover; but if they did believe that the contract was not an entire one, for which, the judge intimated, there seemed to be no evidence, or that, if it was entire, yet, according to the intention of the parties executory, then the jury ought to find a verdict for the defendant.</p> <p>A verdict was rendered for the plaintiff, subject to the opinion of the Court upon the judge’s report; and the action stood continued to this term.</p>

<p>The libel in this case was for a divorce a vinculo, and was subscribed by one naming himself attorney to the libellant.</p>

In this case, a verdict had been found for the defendants, at the last term in this county, and the plaintiff moved to file his exceptions to the verdict; but it did not appear that any exceptions had been filed or allowed agreeably to the statute of 1803, c. 93, 5. The plaintiff now moved that he might file his exceptions, and that the judge before whom the cause was tried might allow them.

<p>The defendant’s plea in abatement having been overruled, (vide ante, p. 218,) he now came into Court, and submitted to be ex amined on interrogatories agreeably to the statute of 1794, c. 65, § 6 On his examination, he was discharged, and moved for costs against the plaintiff.</p>

When this action was commenced, the defendant was a person non compos mentis, and he defended by Charles Whitman, Jun., who had been duly appointed his guardian. The plaintiff obtained a verdict in the court below, and, from the judgment on that verdict, the defendant, by his guardian, appealed.

<p>The question, in this case, arose on the trustee’s answer to the interrogatory put by the plaintiff. In that answer, Whitney acknowledges that, at the time of the service of the writ upon him, Cobh had a book account against him for sundry articles of merchandise, to the amount of about fifteen dollars, for which he, Whitney, had not paid. After the service of the writ, a paper, or assignment, under the hand and seal of Cobb, a copy of which is annexed to and made part of the answer, was presented to him by the attorney of the assignees named in the said instrument, by whom he was also requested to pay to the said assignees the sum he owed to Cobb, * was notified tha.t the assignment was [ * 509 ] given for the consideration therein expressed; that Cobb had no claim on him for the said debt, and was forbidden to pay it to him.</p> <p>The said assignment was a deed poll, in which Cobb, acknowledging that he owed unto S. 8f H. Higginson sundry sums of money on several notes of hand, which he recites, and unto A. Elliot sundry other sums on other notes, which he also recites, and declaring himself willing to secure the said Higginson and Elliot, as far as he was able, the said several sums,- assigns and makes over unto them all sums of money due him from a number of persons, whom he names, and among whom is Jonas Whitney, the trustee in this case, for the express purpose of securing the payment of the notes above described; and the moneys arising from the debts so assigned, after payment of two particular sums, are to be endorsed on the notes of Cobb to the said assignees, and the surplus paid over to Cobb. And there is likewise power given the assignees to demand and sue for the several sums so assigned.</p>

This was an action of covenant broken, founded on a deed of conveyance made by the defendant’s intestate to the plaintiff, bearing date March 24, 1802.

The supposed trustee, on his examination in the court below, disclosed the following facts, viz.: — “ About thirty-nine years ago, Seth Banister, my father, conveyed to me a tract of land in Brookfield, which I have ever since owned. About five years since, the said Liberty Banister, who is my son. requested my license to efect a dwelling-house and other accommodations on said land.

<p>ah agreement of a defendant in a suit pending in the Court of Common Pleas, that he will not appeal from a judgment rendered against him by that court in such suit, does not preclude him from bringing his writ of error on such judgment.</p> <p>In an action by the endorsee of a promissory note against the promisor, the defendant cannot tender his oath in verification of a plea of usury under the statute of 1783, c. 55.</p>

This was an action of assumpsit, for four months and twenty-seven days’ labor of the plaintiff’s son. On the general issue pleaded, the cause was tried before Thatcher, J., from whose report of the trial it appears that the defendant did not dispute the performance of the service, but insisted that it was done under an express hiring for a year at 72 dollars, and that the son left his service against his will, within the year. This contract was denied by the plaintiff.

<p>The points in this case will sufficiently appear from the opinion of the Court as delivered by</p>

<p>A writ of review does not lie upon a judgment of the Court of Common Pleas rendered upon the report of referees, appointed pursuant to the statute of 1786, c. 21</p>

<p>This was a special action of the case, in which the plaintiffs declare that on the 15th day of March, 1805, the legislature of this commonwealth appointed N. Tillinghast, E. Loud, and E. Turner, Esquires, a committee, after giving due notice to the parties, to repair to the several darns on Neponset River, between the sea and Paul’s bridge on said river, and to order such alterations to be made in the fishways through the several dams aforesaid, or to cause such new fishways to be made around said dams, or either of them, as in their opinion, or the major part of them, should be sufficient for the passage of shad and alewives at the dams aforesaid. The expenses incurred by making such alterations, it was resolved, should be borne one fourth part by the towns of Stoughton, Sharon, [*523 ] and Canton, and three * fourth parts by the respective owners of the dams where the alterations should be made. And the plaintiffs aver that, in pursuance of said resolve, the said Tillinghast, Loud, and Turner, on the 30th day of May, in the same year, did repair to the dam on the said Neponset River, between the sea and Paul’s bridge, owned by the defendants, and ordered certain alterations to be made in the fishways through the same, sufficient for the passing of shad and alewives; in pursuance of which order the said alterations were made ; in and about the doings of which the plaintiffs incurred and paid expenses to the amount of 274 dollars 53 cents, three fourth parts of which is 205 dollars 90 cents; of all which the defendants had notice, and thereby, and by force of the resolve aforesaid, became liable, <fcc., and promised, &c. There was also a count for money laid out and expended.</p> <p>Upon the general issue pleaded, a verdict was taken for the whole sum demanded by the plaintiffs, subject to theopinionof the Court on a case stated by the parties, in which it is agreed that the resolution declared on passed the legislature; that the defendants are seised in fee simple of a water-mill and dam on Neponset River, between the sea and Paul’s bridge; that the said committee, having heard all the parties, ordered certain alterations to be made in the fishway through the dam of the defendants, who were notified of the said order, and requested by the plaintiffs to make the said alterations, which they refused to do until the then next spring; that after-wards, in the same year, the plaintiffs applied to the said Loud, who had been appointed a sub-committee to see that the alterations, ordered as aforesaid, were complied with, and the said Loud, upon being informed of the said refusal of the defendants, ordered the plaintiffs to make the said alterations in a prudent, faithful manner ; that the plaintiffs afterwards caused the said alterations to be made, and expended therein, for work and materials, the sum of 123 dollars 82 cents, and the further sum of 150 dollars 71 cents, in paying the said committee and sub-committee for their time and expenses in performing the services aforesaid, and in paying the persons who attended on them in behalf of the plaintiffs when performing the said services; *that notice of the expen- [#524 ] ditures was given to the defendants, and payment demanded of them.</p> <p>The case further states that the defendant’s dam is an ancient dam, and their title thereto is derived from one Israel Stoughton, who acquired his right thereto in the year 1633, by grants to him from the town of Dorchester, in which the land then was, of a mill privilege, of a wear adjoining his mill, and an exclusive right to take shad and alewives between the wear and the bridge, with a candi ■ tian that he was to sell the alewives there taken to the plantation at five shillings the thousand, and other fish at reasonable rates; and he was not to transfer the mill to any one without the consent of the plantation first had and obtained; that the said grants were confirmed by the General Court in the year 1634; that no fishway was ever made through the said dam until the year 1789, when the fishway was made (the alteration of which was directed as aforesaid) pursuant to a resolution of the General Court, passed February 17, 1789, at the expense of the said towns of Stoughton and Sharon, on whose petition that resolution passed.</p> <p>If, on these facts, it should be the opinion of the Court that the plaintiffs were by law entitled to recover three fourth parts of the sums aforesaid, judgment to be entered according to the verdict. If their opinion should be that the plaintiffs are entitled to recover only the amount expended by them in labor and materials, then the verdict is to be amended by reducing the sum there found to 92 dollars 87 cents. But if their opinion should be that the plaintiffs are entitled to recover any thing of the defendants, the verdict to be set aside, and a general verdict entered for the defendants. And now,</p>

This was an appeal from a decree of the judge of probate for this county, refusing to accept the return of certain commissioners appointed by him to assign and set off to the appellant her dower in the estate of her late husband, Samuel Leonard, Esquire, the respondents being the heirs at law of the said deceased.

<p>Trespass against the defendants, for taking, carrying away, and converting to their own use, two steers, the property of the plaintiff, on the 29th day of March, 1806.</p> <p>The defendants, as to the force and the breach of the peace, plead not guilty; and as to the residue of the trespass, they justify, as assessors of the town of Attleborough in this county, of which the parties are all inhabitants, and they allege that the inhabitants of a certain school district, which is described in the plea, on the 12th day of August, 1805, voted to raise the sum of 330 dollars, to build a district school-house; that the vote was duly certified by the clerk of the district, to the defendants, who, on the 15th day of January, 1806, legally assessed the said sum for the purpose of building a school-house for the district, and, on the same day, issued their warrant to a collector to collect the same; that the plaintiff, when the said vote was passed, was an inhabitant of the same district, and was assessed the sum of 20 dollars 28 cents and 6 mills, being his just proportion, which he refusing to pay, the collector distrained the said steers, which is the residue of the trespass complained of.</p> <p>The plaintiff replies that, after the vote of the district to raise the said sum of money was passed, and before the same was assessed, viz., on the 17th day of September, 1805, at a town meeting duly holden, a legal vote was passed that the plaintiff and others named in the said vote should be set off from the said school district, and should be formed into a separate school district.</p> <p>To this replication the defendants demur, and the plaintiff joins in demurrer.</p>

<p>Of the settlement of slaves. [After manumission, a slave retains the settlement oí his master till another is gained. — Ed.]</p>

This was a real action, in which the demandant counted on his own seisin within thirty years.

<p>This was an action upon a policy of insurance, which came before the Court upon a statement of facts agreed by the parties at October term, 1806. It was submitted to the Court without argument, and, standing continued nisi from this term, the following opinion of the Court, in which the material facts and points of the cause appear, was delivered at Salem in November, by</p>

<p>A private in the militia is not discharged from the company to which he belongs by an absence of six months from the brigade, without an intention of changing his domicile.</p> <p>' f a private in a standing company enlist in a voluntary corps, although the standing company consist of less than sixty-four effective privates, or by such enlistment is reduced below that number, the enlistment is not void, and such private is not liable to do duty in the standing company, unless restored thereto by the brigadier-general.</p>

<p>This was an action of the case upon several promises. Upon non assumpsit pleaded and joined, the cause was tried before the Chief Justice, at the sittings after the last October term in this county, and a verdict taken for the plaintiff for the sum demanded by him, subject to the opinion of the Court upon a case stated. The declaration is stated, and the facts agreed are recited by the Chief Justice in the following opinion of the Court, delivered by him at this term, the cause having been submitted to the Court without argument.</p>

<p>Of costs on the denial of a motion for a certiorari.</p>

<p>A conveys land to his four sons in fee, who, by deed of the same date, mortgage the same land to the father, to secure the payment of a sum of money, and also a maintenance for the father during his life; it was held that the two deeds were parts of the same contract, and that the seisin of the sons was not sufficient to entitle the widow of one of them to her dower in the land.</p>

<p>The legislature may, consistently with the third article of the declaration of rights, and with the statute of 1799, n. 87, set off a member of any religious incorporation to another religious incorporation, whether of the same or of a different denomination.</p>

<p>A owns a room on the lower floor of a dwelling-house, and the cellar under it, and B owns the chamber over the room, and the remainder of the house; the roof becoming ruinous, B makes the necessary repairs; held that A is not liable to contribute to such repairs.</p>

The affidavit of the petitioner stated only that he intended tc have made a defence in the former action, and that he was defaulted by accident, but did not contain any denial that he owed the amount of the judgment recovered. The respondent did not appear.

<p>If one, to whom a wagon load of goods, consisting of several packages, is delivered to be transported from one place to another, fraudulently take away one of the packages, such taking is felony.</p>

Trespass quare clausum fregit. The defendant’s counsel moved for a continuance of the action, for the purpose of pleading specially; apprehending that it was a standing rule of the Court to grant a continuance of course for that purpose.

<p>Unprovoked force and violence used towards a wife are sufficient evidence of extreme cruelty, to maintain a libel for a divorce a mensa et thora.</p> <p>Where, upon a divorce a mensa et thora, alimony is decreed, and made payable quarter-yearly, the Court will not issue execution, without first making a rule on the husband to show cause.</p>

<p>Trespass on the case, in which the plaintiffs, claiming the use of a certain thirty feet street, complain against the defendant for obstructing a part of it, by continuing a certain shed upon it.</p> <p>The cause came before the Court on a case stated by the parties at the last October term in this county, in which it appears that the defendant was seised of three several parcels of land contiguous to each other, on one of which was a ropewalk, adjoining on a second parcel which he opened as a way, called a thirty feet street, but the same has never been established as a public way. On the side of this way, opposite to the ropewalk, was the third parcel of land. Adjoining to the ropewalk, and projecting from it ten feet over the said street, was the shed or fixture complained of, being about twenty feet in length, and leaving the street for that space but twenty feet in width. The defendant sold and conveyed to the plaintiffs, in fee simple, the' third parcel of land, bounding it on one side “ by said thirty feet street, with the privilege of passing in the said thirty feet streetEver since and long before the said sale the defendant has continued the said fixture to his ropewalk</p> <p>Upon these facts, it was agreed that, if the Court should be of opinion that the plaintiffs ought to recover, they should have judgment for nominal damages only, (no special damage having been suffered,) with full costs; otherwise the defendant should have judgment for his costs.</p>

<p>A plea to a transitory action, alleging that neither of the parties lives within the county where the action is brought, is a plea in abatement to the writ, and must be filed before the jury is empannelled, pursuant to the statute of 1782, c. 11, § 6.</p>

<p>Upon an appeal from a decree of the Probate Court approving a will, the will is to be proved in this Court, as if the question had originated here; and the appellee, having the affirmative, is to open and close.</p>

This action was covenant broken. Upon oyer prayed of the deed declared on, it appeared to be an agreement made between the defendants, a committee appointed by the direction of the Middlesex Turnpike Corporation, to contract for making the turnpike road, or any part of it, on the one part, and the plaintiff on the other part. The plaintiff agrees with the said committee to make a part of the said turnpike there defined, and in the manner there described.

This was a writ of entry, and was tried upon the general issue before Parker, J., at the sittings after the last October term in this county.

<p>An administrator de bonis non cum testamento annexa cannot maintain a writ of error to reverse a judgment recovered by the original executor.</p>

<p>This was an action of debt on the bond of the defendant, upon which the judgment referred to in the preceding case between these parties was rendered.</p> <p>The defendant pleaded the former judgment in bar. The plaintiff demurred to the plea, and the defendant joined in demurrer.</p>

This action was replevin for a horse. The defendant pleaded property in himself in bar, and prayed judgment for a return and damages for the detention. The plaintiff, in his replication, affirmed the property to be in himself, and on this the parties were at issue. A verdict was found for the defendant, and damages assessed for the detention.

<p>Where one of the parties to an action, which by law survives, dies pending the action, and his executor or administrator becomes a party pursuant to the statute of 1783, c. 59, § 1, and afterwards the other original party dies, the action still pending, his executor or administrator may become a party; and if he neglects so to do after notice, judgment will be entered against the estate of his testator or intestate.</p> <p>When an executor or administrator has represented the estate of his testator or intestate to be insolvent, and a commission is thereupon awarded, there is ao apparent insolvency. When a distribution is decreed, the insolvency becomes absolute.</p> <p>In an action brought against an executor or administrator during an apparent in solvency, the defendant may abate the plaintiff’s writ, by pleading the insol vency, and admitting the creditor’s demand: if he dispute the demand, the plaintiff may have judgment, but not execution: if the action be commenced before an apparent insolvency, it shall be continued until it shall appear whether there is or is not such an insolvency, and if there is, the plaintiff, as before, may have judgment, but not execution.</p> <p>The second exception in sect 2 of the statute of 1788, c. 66, applies only to cases in which an apparent insolvency has taken place within the year.</p> <p>If, pending an action commenced for a just cause, an absolute insolvency of the estate takes place, and the whole estate, being legally appropriated, furnishes no dividend to the creditors, the plaintiff cannot have judgment; neither can the executor or administrator recover costs.</p>

<p>This was an action of covenant broken. The declaration contained several counts, in the fourth of which the plaintiff alleges that the defendant, by his deed duly executed, dated [ * 628 ] * September 26, 1800, in consideration of three hundred dollars paid him by the plaintiff, granted and sola to the plaintiff in fee simple a certain messuage and lands, therein described, and among other things covenanted that the granted premises were free of all encumbrances. The plaintiff then sets forth that, before and until the 19th day of March, 1795, one Thomas Symmes was seised in fee of the said messuage and lands, having a good and perfect title to the same, and being so seised, by his deed of that date, for a valuable consideration, conveyed the same to one Thomas Russell in fee, and the said Russell, on the 8th day of April, 1796, died intestate, seised of the right to the same premises, from whom the said right descended and came to his children and heirs; and the plaintiff further avers that at the date of the defendant’s said deed, he had not, nor hath he at any time had any entry, right, or title to the premises aforesaid, but by and under the said Symmes, who thereof disseised the said Russell on the 4th day of August, 1795 ; so that the said right of the said children and heirs of the said Russell to have the said premises, as aforesaid, was at the time the defendant executed his deed aforesaid, and still continues to be, an encumbrance upon the premises aforesaid ; and therefore that the same were not then free of all encumbrances ; and so the defendant his covenant aforesaid hath not kept, but hath broken the same.</p> <p>To this count the defendant demurred generally, and the plaintiff joined in demurrer.</p>

<p>This was a certiorari to the Court of Sessions, directing them to certify the record of their proceedings relative to the making alterations in the highway, leading from the line of the county of Worcester, through sundry towns in this county, to West Boston Bridge.</p> <p>The writ issued at the motion of the respondents; and upon inspection of the proceedings, it did not appear that notice had been given to the town of Cambridge, previously to the appointment of a committee, to make said alterations, or to the adjudication that the same were of common convenience and necessity.</p>

<p>Where a legatee accepts a part of a legacy bequeathed, pursuant to an average or pro rata distribution of the property remaining- in the hands of the executor, he has no further remedy for the part unpaid, until further estate is discovered.</p>

<p>This was an action of the case to recover damages for not paying a legacy bequeathed to the plaintiff in and by the last will and testament of Timothy Farwell, deceased. The declara- [ * 635 ] tian * states that the testator being seised and possessed of large real and personal estate, made his last will on the 30th of September, 1798, of which he made Henry Farwell, his son, executor, and therein, among other things, directed the executor to support, in sickness and in health, the testator’s aged father, who is the now plaintiff; that the testator afterwards died, and his will was proved, and the trust of executor was accepted by the said Henry, who afterwards neglecting to execute the trust, and removing from the state, administration de bonis non cum testamento annexo was committed to the defendant; that sufficient assets came to his hands; and that neither he nor the said executor has maintained or supported the plaintiff; and this action is brought to recover in damages a sum equivalent to the support and maintenance directed in the said will.</p> <p>The cause was submitted to the Court on a case stated by the parties, in which the allegations contained in the declaration are substantial!} agreed ; and if, in the opinion of the Court, the plaintiff could not maintain this action, he was to become nonsuit, and if he can maintain the action, the defendant was to be defaulted.</p>

In this action, which was trespass quare clausum fregit, and which w_as tried before the Chief Justice at the adjourned sittings after the last October term, a verdict was taken for the plaintiff by consent subject to the opinion of the Court, upon the following case, viz.: — “That on the 11th of June, 1805, John Farnsworth, being seised in fee of the close in which, &c., bona fide, and for a valuable consideration, by his deed then executed, conveyed the same to the…

This was an action of debt, brought upon a recognizance taken before a justice of the peace. The declaration contained two counts. The first alleged that the defendant, at a day therein mentioned, acknowledged, before the justice, that he was indebted to the plaintiff in the sum of fifty dollars, to be paid on demand ; and that an action had accrued to the plaintiff, to demand and recover the same.

<p>Practice. — Where an appellant had failed by accident to enter his appeal at toe last term, the Court permitted him to enter it now as of that term, the appellee consenting, and the bail not being prejudiced, nor subsequent attachments affected thereby.</p>

The defendant was indicted for having in his possession a false, forged, and counterfeit note of the Vermont state bank, with intent to pass the same as true, he well knowing the same to be false, forged, and counterfeit, against the form of the statute in such case made and provided, and the peace and dignity of the commonwealth.

<p>Where an insurance is made by one m his own name only, on property valued and it afterwards appears that the insured was owner but of a moiety, he snail recover but for a moiety of the sum insured, in case of a loss.</p> <p>Whether profits may be insured under the name of freight, qu<zre„</p>

<p>A, being in the service of B, and having engaged to pay his own board, applied to C to board him, and proposed to him to take his pay in goods out of B’s store, to which B consented, and promised he should be so paid: in an action by C against B for the board of A, this latter was offered as a witness for the plaintiff ; and these facts coming out on examining A, on the voir dire, he was rejected as interested in the event of the suit.</p>

This was a writ of entry sur disseisin, “ wherein the said Robert, an infant, who sues this action by W. B., his next friend, demands against the said Enoch a certain tenement and land described, with the appurtenances; whereupon the said Robert, by his said next friend, complains, and says that Robert Mitchel, father to the demand-ant, was seised of the demanded premises within thirty years last past, in his demesne as of fee and right, taking the profits thereof to the…

This was an action brought by the plaintiff, then a feme sole, against the defendant for driving his cart against the plaintiff’s chaise. At April term, 1807, the defendant filed a plea in abatement, that since the last continuance, the plaintifl [ *660 ] *had intermarried with one Evan Merrill, and prayed judgment if she ought to be answered to her writ, and for his costs. To this plea the plaintiff demurred, and the defendant joined in demurrer.

<p>A bona fide conveyance by deed, of a vessel and cargo abroad at the time, is valid against creditors, provided the vendee takes possession thereof without delay upon the return of the vessel.</p> <p>There is no difference m effect between the grand bill of sale used in England, and the bills of sale used in this country for the conveyance of vessels.</p>

<p>In this action, which was trover for certain chattels mentioned indie plaintiff’s declaration, the parties agreed upon a state of facts, from which it appears that on the 12th of March, 1806, the plaintifl signed a shipping paper in the common form, to serve as a mariner on board the brig Fox, whereof the defendant was master, on a voyage from Salem to Machias, and from thence to Turk’s Island, and back to the United States ; and on the «ame shipping paper subscribed a memorandum, engaging to render himself on board said brig on the same day to go the voyage aforesaid, and afterwards, on the same day, did so render himself on board ; that the said brig was of one hundred and sixteen tons’ burden, and the defendant, a mate, two seamen besides the plaintiff and the cook, constituted the crew which, it was agreed, were sufficient for the voyage : that the plaintifl received ten dollars at the time of signing the shipping paper, a? advance wages; that on the 15th of said March, and before the vessel sailed on said voyage, the plaintiff obtained license from the defendant to go on shore, from said brig then lying at Salem, with orders to return on board the same night; that he went on shore accordingly, but did not return on board at any time afterwards, bin refused so to do, and wholly deserted and escaped from said brig alleging, as a reason therefor, that the vessel was insufficient!) manned ; that the defendant then offered to ship anothei [ *665 ] man at Machias ; that the brig proceeded * to sea on said voyage without the plaintiff, and his absence and desertion were duly noted in the log-book ; that at the time of the desertion aforesaid, the plaintiff had the chattels aforesaid, on board the said brig, in possession of the defendant, and before the commencement of this action, they were demanded by the plaintiff of the defendant, who refused to deliver them, claiming them as foi feifed by reason of the desertion aforesaid.</p> <p>Upon these facts, it was agreed that if, in the opinion of the Court, the plaintiff is entitled to recover in this action, his damages should be assessed by a jury; otherwise that the defendant should recover his costs.</p>

<p>Case upon a policy of insurance, in which the plaintiffs caused themselves to be insured the sum of ten thousand dollars, on the cargo of the ship Hunter, from Newburyport to the Isle of France, and any ports or places in the East Indies, or elsewhere beyond the Cape of Good Hope, and at and from them, or either, of them, to her port of discharge in the United States. The plaintiffs declare upon a total loss, by the force and violence of the winds and waves.</p> <p>Upon the trial of this cause at the last April term at Ipswich, before Seioall, J., a verdict was found for the plaintiffs as for a total loss, subject to the opinion of the Court upon a case stated by the parties, in which it was agreed that if the Court should be of opinion that the plaintiffs were entitled to recover [ * 669 ] * for a total loss, the verdict should stand, and judgment be entered upon it; otherwise the damages as for a partial loss were to be assessed and reported by commissioners to be appointed by the Court, or named by the parties, and the verdict to be altered so as to conform to such report and judgment accordingly.</p> <p>The ship arrived with her cargo at the Cape of Good Hope, and there the supercargo sold nearly half the cargo, and was intending to proceed with the ship and the remainder of the cargo to the Isle of France, when a storm drove the ship on shore, where she was totally lost, a part of the remaining cargo damaged, and by that event the voyage was wholly broken up and lost. The plaintiffs received accounts of the loss by letters from the supercargo on the 21st of January, 1806, and further particulars of it on the 9th and 10th of February following, and on the 24th of the same February they received a full and distinct account of the nature and extent of it, with the necessary documents to prove it. The plaintiffs lived in the town of Newburyport, where the office of the defendants is kept, and the offer to abandon was made on the 10th of April following, which the defendants refused to accept; and the only question made was, whether the offer to abandon was made in such season as to bind the defendants.</p>

The writ in this case w'as sued to reverse the proceedings of a justice of the peace for this county, who had convicted the plaintiff in error of a neglect of military duty in not appearing at a regimenta. muster, upon the complaint of the defendant in error, as clerk of the company to which the complaint states Edgar to belong.

<p>This was an action of assumpsit respecting a sum of money carried, as an adventure for the defendant, on board the plaintiff’s ship David, to the East Indies, under an agreement to allow half profits, in lieu of freight and commissions.</p> <p>The cause was tried on the general issue before Sewall, J., at the sittings after the last November term, and a verdict returned, by direction of the judge, for the defendant, subject to the opinion of the Court on the evidence to be reported by the judge.</p> <p>At the trial, a bill of lading was produced, and an agreement written on the back thereof, from which it appeared that the defendant shipped on board the David 8107 dollars 72 cents in specie, and that the owner of the vessel was to receive for the freight of the money out, and goods home, one half of the proceeds thereof, after deducting the sum shipped.</p> <p>It was also in evidence that the defendant’s said adventure, vested, at Java, in coffee, was on board the David, when, on her return voyage, she was wrecked and lost at the Isle of Bourbon. The salvage of her cargo was afterwards shipped to the United States, and of 535 bales of coffee, the proceeds of the defendant’s adventure, 366 bales, which * cost 5762 dollars 39 [ ® 673 ] cents, arrived in safety at Boston, where, at public sale, it produced the net sum of 7392 dollars, 47 cents, which the defendant received. The plaintiff demanded his half of the profits on the coffee which was saved, or of the difference in the costs and the proceeds of that part of the defendant’s adventure.</p>

<p>A minor, whose father is dead, and his mother afterwards married, is entitled to his earnings in the service of a third person: the father-in-law may have an action on an implied assumpsit for necessaries, but cannot claim his earnings against the minor’s consent.</p> <p>Whether rights or duties may belong to the mother as guardian by nature, they do not devolve on her husband.</p>

<p>Where a new town, A, was incorporated out of part of an old town, B, and the act of incorporation provided that A should pay to B a sum of money, as a consideration for being exempted from any expense on account of paupers belonging to B, previous to the incorporation, except such as might thereafter be returned as paupers from some other town, and who were born in, or formerly were inhabitants of, that part of B which constituted A, it was held that the paupers returned to B, and not born in A, for whose support A must pay, were those who, tohen they'removed to other towns, removed from that part of B forming A, and not such as might have once lived in A, not being born there, but before they dwelt in another town, removed and lived in B, whence they, in fact, emigrated.</p>

<p>This was a writ of entry, in which the demandants counted upon their own seisin within twenty years, and upon a disseisin by the tenant.</p> <p>The tenant pleads that the demandants are not entitled to their action, because Francis Quarles, father of the tenant, and grandfather of the demandants, had children, viz., Francis, the tenant, Elizabeth, .wife of Nathaniel Potter, and Samuel, father of the demandants; and the said Francis, the father, having, on the 17th of August, 1785, assigned and delivered to his son Samuel a full portion of the estate of the said Francis, the father, by advancement, he, the said Samuel, at the same time, and in consideration of such advancement, by his deed of that date, sealed with his seal, and in Court to be produced, acknowledged himself fully satisfied and contented therewith, as and for his full share and portion of the estate of the said Francis, the father; and did therein and thereby fully acquit and discharge all right and claim, which he, the said Samuel, or his heirs or legal representatives, might have to the estate of the said Francis, the father, or any part thereof, by inheritance. And afterwards, on the 17th of January, 1787, the said Samuel died. And the tenant avers that the demandants have no other right in the demanded premises than what descended to them as children and legal representatives of the said Samuel. And afterwards on the 20th of April, 1787, Francis, the father, died seised in fee of and in the whole of the land described in the demandant’s writ, leaving the said Francis, the tenant, and his sister, the said Elizabeth, to whom the same descended, in exclusion of the children and representatives of the said Samuel, by reason that he had his full portion, &c., and gives color, &c.; wherefore he prays judgment, &c.</p> <p>The demandants pray oyer of the said deed, which is set forth ; and therein the said Samuel declares that whereas he has this day received of his father a deed of certain land, &c., [*681] * describing it, “ of which he hath given me a certain part; in consideration of which I am fully satisfied and contented as my share of his estate ; furthermore do fully acquit and discharge my father’s estate forever hereafter from having any demand thereupon, as an heir to any part thereof.” Which being read, &c., the demandants say that the said Francis, the father, on the said 17th day of August, 1785, by his deed, &c., sealed, &c., and in court, &c., for a valuable consideration, viz., the sum of 233/. 6s. 8d. lawful money, gave, sold, and conveyed, to the said Samuel in fee, a certain tract of land, &c., [being the same parcel described in the deed before mentioned,] and prays judgment, &c.</p> <p>The tenant, after oyer of the deed, which is a conveyance in common form of the same land, expressed to be for the consideration of 233/. Is. 6d., rejoins, that the said Francis, the father, conveyed the same land, not only in consideration of the sum of money therein expressed, but also as and for a full advancement to the said Samuel, as his part and portion of the estate of the said Francis, the father; and that the said Samuel did, by his deed aforesaid, accept the said land, as such advancement, and in full satisfaction of his share and portion of the estate of the said Francis, the father.</p> <p>To this rejoinder, the demandants tended a general demurrer, which is joined by the tenant.</p>

This action, which was case in assumpsit, was tried before Seivall, J., November term, 1806. The report of the judge who sat in the trial states that the plain tiff was owner of one quarter of the brigantine Pompey, and master of her for a voyage from Salem to Sumatra, and the defendant was owner of another quarter.

<p>The declarations of a supposed grantor m a deed after the date of the deed, as “ that he had never made the deed,” &c., cannot be given in evidence against the party claiming under such deed after the grantor’s death.</p>