Volume 4 — Maine Reports

This was an action of the case, which came before the Court upon a general demurrer to the declaration, in which were recited the following facts.

This was a scire facias against the defendants as the bail of one Hodgdon.

This was a writ of entry in which were demanded two undivided third parts of a parcel of land in Sanford. In a case stated by the parties it was agreed that they both claimed under deeds from Abner Hill; and that the point in controversy arose upon the construction of their several deeds.

In this case, which was a petition for partition of certain lands in Lyman, the petitioner claimed to hold an undivided moiety in common with the respondent, who defended the whole tract, under the plea of sole seisin. At the trial, before the Chief Justice, the petitioner derived his title by extent, made March 15, 1823, by virtue of an execution in his favour against one Jonathan Parker.

This was a writ of entry brought against Daniel Cole, jr. to recover possession of one twenty-fourth part, called one day, in a certain saw mill; in which the demandant counted on his own seisin and a disseisin by the tenant. At the trial, which was before the Chief Justice upon the general issue, the demandant read to the jury a deed from Daniel Cole, father of the tenant, to himself, dated March, 19, 1809, recorded Sept. 22, 1824, and conveying the premises in fee.

This was assumpsit on a promissory note made by the defendant March 1, 1823 for $190 payable to the plaintiff in eight months with .a count for money had and received. At the trial before the Chief Justice the following facts were proved. On the first of March 1823, Jonathan Horsum, a son of the defendant, applied to the plaintiff for a loan of 190 dollars, for eight months, on the credit of himself and his father the defendant; to which the plaintiff assented.

The question in this case, which was trespass quan clausum fregit arose upon the division of John Dennett’s estate in the year 1660, between his son John and the heirs of his son Thomas.

<p>Ji father may have an action for the seduction of his minor daughter, though she resides out of his family ; if he has not divested himself of the right to control her person, or to require her services.</p> <p>So if, being bound an apprentice, her master turns her away ; or if, with his consent, she returns to her father, and is seduced, the father may have this action,</p>

Jlssumpsit on a promissory note, dated Feb, 15, 1810, to which the statute of limitations was pleaded.

In a writ of error to the Court of Common Pleas, to reverse it judgment rendered in favor of the present defendants, in an action of assumpsit brought by the present plaintiff, the case was thus:— The plaintiff, being duly qualified as a schoolmaster, was employed to keep the school in district No. 2, in Newfield, for the month of April 1824, at the agreed price of fifteen dollars, which he accordingly did; and for which this action was brought.

This case, which was assumpsit for the support of a pauper, was brought up by the’defendants who appealed from a decision of Whitman C. J. rendered against them in the Court below, upon a statement of facts agreed by the parties. The question was upon the settlement of the pauper, who was a female under twenty one years of age, having a mother living, but no father.

<p>The party against whom a trespass has been committed, does not thereby become a creditor of the trespasser ; nor is he on that account entitled to impeach a . conveyance on the ground of fraud, unless the conveyance is subsequent to the rendition of judgment in an action for the trespass.</p>

This was an application for a writ of mandamus to be issued to the court of Common Pleas, to grant the applicant a new trial of a prosecution under the statute for the maintenance of bastard children; which Whitman C. J. of that court had refused, on the ground that the statute authorizing new trials did not extend to cases of that description.

The .plaintiff in this case having obtained judgment in the court below against one Manchester, who was absent, the attorney of the latter entered an appeal to this court, and became bound by recognizance himself as principal, with the present defendant Sawyer as surety, for the prosecution of the appeal; which not being done, the plaintiff entered the recognizance of record in this court at the term appealed to, and now brought in this court the present scire facias thereon.

In this action, which was for a partial breach of the covenant 6f good right to sell, &c. in a deed of conveyance, the plaintiff had judgment in the court below, at March term 1823, for two hundred dollars ; from which the defendant appealed ; and at the last November term the plaintiff had a verdict and judgment in this court for two hundred and twelve dollars and eighty-five cents; — and the question was, whether the damages were reduced in this court, within the meaning…

<p>. Dower may be demanded and assigned by parol. And authority to demand dower for another may be given in like manner. It is not necessary that it should be demanded on the land.</p> <p>An authority to demand dower, implies also the power to assent to, or receive, the assignment of it.</p>

This was an action of debt on a bond given by the defendant Nevens on being chosen collector of taxes for the town of New-Gloucester, and conditioned that he should “ well and truly col- “ lect all such rates for which he should have sufficient warrant, {t under the hands of the assessors, according to law, and pay the £í same into the treasury,” &c. Nevens, the principal defendant, never appeared in the'suit, and his default was entered of record in the court below, at the…

Tins was a writ of right on the seisin of John C. Stickney, to recover two undivided ninth parts of a lot of land in Portland. In 1796, Feb. 19, Joseph Hooper, and Mary his wife, who was supposed to be the sole heiress of the ancestor, conveyed to Ijucy Stickney, his widow, the whole of the demanded premises in fee, with general warranty ; in consideration often dollars, and of her release to them of her right of dower in his estate.

This was a scire facias against the defendant as indorser of an original writ in favor of one Cram against How, in a suit wherein How prevailed, and had execution for his costs. Cram, having been committed to prison on the execution, had been discharged by taking the poor debtor’s oath. The plaintiff now claimed the amount of his judgment for costs, together with the price of the writ of execution, and the sheriff’s fees, paid for committing Cram to prison; with interest.

<p>'Where one of two copartners, after the dissolution of the partnership, gave a note in the name of the firm, for his own private debt, the creditor knowing that the partnership was dissolved ; and this note being afterwards sued, and the party who made it having become bankrupt, the other partner compromised the suit by giving his own note for half the debt and all the cost; part of which note he afterwards voluntarily paid ; — it was held that the making and acceptance of the first note was a fraud upon the absent partner, and that the second note was therefore void.</p>

In a writ of entry, which was tried before the Chief Justice, the demandant, to prove the loss of a title-deed, offered the deposition of Nathan Winslow, taken in perpetuam rei memoriam, Jlug. 13, 1784, and recorded on the same day; and proved that the deponent, who had attended court several days during the term, as a witness in this cause, was, at the time of trial, confined to his house, by sickness.

This was a writ of entry in which the demandant counted on his own seisin within twenty years, and a disseisin by the tenant; and it was tried before Preble J. upon the general issue.

In a libel by the wife, for divorce a vinculo, for the adultery of the husband, to prove the fact of adul - tery, offered a copy of the record of the conviction-of the husband on an indictment for that offence. required proof of the marriage, independent of the recital in the indictment and the finding of the jury upon that trial.

<p>ÍN this action which was for money had and received the facts are stated in the opinion of the court, which was delivered as follows, by</p>

<p>This was an action of assumpsit against the defendants as trustees and deacons of the society of Shakers in the town of New-Gloucester, having the care and oversight of their temporal concerns ; and was brought to recover compensation for the services of the plaintiff about twelve years in that family or society, rendered while a professed shaker and member of the same family, from the time of his attaining the age of twenty one years.</p> <p>At the’trial, which was before Preble J. it appeared that the father of the plaintiff, who was also a shaker, carried the plaintiff with him into that family and bound him to the deacons as an apprentice, where the plaintiff continued to reside, except at some few intervals, from the age of fourteen years, working and farming, and clad like the other brethren of the same family. During this period he left the family twice ; and after having been absent a few months returned, asked pardon for his desertion, and was forgiven and received again into the family where he continued to reside as a professed shaker, till he was thirty two years old, when he finally left them.</p> <p>It appeared, from the plaintiff’s shewing that the principle of association in regard to their temporal concerns, was that of laboring for the common good of the society, each individual, whether sick or well, active or past labor, being clothed and supported out of the common stock. It also appeared that the shakers, while the plaintiff resided among them, did not encourage human learning ; — that neither the father of the plaintiff, nor the plaintiff himself thought favorably of such learning; — but that all their young men, who wished it, were taught to read and write, and were instructed in arithmetic as far as the rule of three ; — that the Bible was furnished to all the members of the society, to be read and consulted at their pleasure ; — that the book published by the ministers of the society, called “The Testimony of Christ’s second appearing,” containing their covenant, and principles of faith and association, was placed within the reach of all, and all were encouraged to read it; — that the plaintiff could read and write, and sometimes exhorted in their religious meetings; and was a man of common talents. It was proved that the society took care to have each member well instructed in his particular department of labor; but that the opportunities for acquiring general information among them were few ; — that while the plaintiff was with them they had no school except in winter evenings, and even this regulation was not uniform ; — and that all progress in human learning and science, beyond what has already been stated, was discountenanced by the elders and directors of the society, except in particular instances and for special purposes. And it appeared that the plaintiff, when he left the society, though well acquainted with farming, knew very little of the business transactions between man and man, and was totally ignorant of the comparative value of the common coins, not being able to distinguish one from another.</p> <p>According to the rules of the society, its members were not permitted to mingle with the world ; nor to keep any memorandum or transact any business, but such as was prescribed to them by the deacons or elders ; — and if any one obtained money, he was not allowed to retain it for his own private or separate use.</p> <p>It was fully proved by the concurring testimony of the witnesses on both sides, — several of those adduced by the plaintiff having formerly been shakers and members of this particular family, but afterwards having renounced that faith, — that all vice and immorality are disallowed by the society, and that integrity, uprightness, and purity of life are taught and enforced among them; — and that the precepts of the gospel, as they understand and interpret them, constitute, as they conceive, the foundations of their faith, and the rules of their practice. It was also proved that they teach and enforce the doctrine that the love of a brother or sister of the society should not exclusively centre in husband or wife, parent or child, individually ; but that all the brethren and sisters, whether standing in those relations or not, should be alike the objects of their affection.</p> <p>An attempt was made to prove that the shakers held that a husband or parent belonging to their society was not bound to contribute to the support of a wife or child refusing to unite with them ; — but Elisha Pole, one of their elders, testified that they held no such principle, and that where such wife or children were unable to support themselves, the shakers always contributed to their support and relief.</p> <p>It appeared that they are accustomed to receive to a noviciate or probation such persons as propose to unite with them ; and that in this way they receive parents with their children; but that no person is considered bound to them till he signs the covenant ; — that every person who joins them after having completed his noviciate, and every minor among them upon his arrival at full age, must, by the standing regulations and orders of the society, sign the covenant, or leave them ; that neither force nor compulsion is used to induce them to subscribe ; but they are obliged to sleep and eat alone ; and are told that they must sign or leave them, and that if they should leave them they would be eternally miserable ; but no other obstacle is interposed to prevent them from leaving the society, if such is their choice. It was testified also that the rulers and elders of the society claimed to have knowledge or discernment of all that any brother or sister, whether present or absent, had been or might be doing ; of all iheir secret sins and derelictions of duty ; of all their impure thoughts, and sinful or carnal desires; — that they also claimed to have gifts, as from Cod ; — that their usual language in giving their orders was, — 1 have a gift that you should do” thus; and that the doctrine of implicit obedience to the rulers of the society is inculcated and enforced by discipline and ecclesiastical sanctions.</p> <p>The defendants, on their part, produced their covenant or arti des of association, of the following tenor</p> <p>" Whereas, we the subscribers, of the plantation called Sabbath-day Pond, in the county of Cumberland, and State of Massachusetts, having received the grace of God in this day of Christ’s second appearing, which hath separated us from the course of this world, and all natural relation, to take up our cross and follow Christ in regeneration, according to the light of God and revelation of Christ made known unto us. We feeling a desire to unite and gather ourselves together, in the order and form of a church in gospel order, agreeable to the order and covenant of the church of our communion at New Lebanon, in the State of New-York, gathered under the order and administration of Elder Joseph Meacham, whom we acknowledge to be our Elder and example in the gospel, and we were some time in the year of our Lord one thousand seven hundred and ninety four, received and gathered into relation, according to our own faiths and understanding of the Church of Christ in gospel order, under the care and ministration of Elder John Barnes, whom we acknowledge to he our Elder and minister, being set apart to the work of the Ministry by the ruling Elders of the church of om communion at said New Lebanon, in which we gave ourselves and. services, with all our temporal property freely, according to our own faith, to support one joint union and interest in all things, both spiritual and temporal, for the mutual good, support and comfort of each other, and for other pious and charitable uses, according to the order and covenant of the church. And whereas, Nathan Merrill and Josiah Holmes were chosen and appointed as deacons in the church, to lake 1 he care and management of the estate or temporal interest of the church in trust ; to receive and hold in their said capacity all such real and personal estate with all gifts, grants or donations that may be devoted and given to the church ; the estate to be taken and holden by them, in their said capacity, in manner and form so as it may go and be holden in a line of succession, under the care and oversight of those members who may be appointed by the church, as their successors in the like office and trust; to be by them religiously improved, according to the true intent and meaning of the following covenant, which was committed to writing some time in the year of our Lord, one thousand eight hundred and one, and was signed by the members at large, and is as follows, viz:</p> <p>“ The Covenant of the Church of Christ at Sabbath-day Pond, so called, relating to the possession and use of a joint interest, in the year of our Lord V794; the year in which most of the members of the church were gathered, in the following order and covenant; was then and from time to time after made known and understood, received and entered into by us as members of the church, agreeable to our understanding of the order and covenant of a church in gospel order, for it was and is still our faith and confirmed by our experience, that there could he no church in gospel order according to the law of Christ, without being gathered into one joint interest and union, that all the members might have an equal right and privilege according to their calling and need in things both spiritual and temporal, and in which we have a greater privilege and opportunity of doing good to each other and the rest of mankind, and receiving according to our needs jointly and equally one with another in one joint union and interest, agreeable to the following articles of covenant:</p> <p>“ First. The conditions on which we were received as members of the Church were in substance as follows : All or as many of us as were of age to act for ourselves, who offered ourselves as members of the Church, were to do it freely and voluntarily as a religious duty and according to our own faith and desire.</p> <p>“ Secondly. Youth and children, being under age, were not to be received as members, or as being under the immediate care and government of the church, but by request or free consent of both their parents, if living, except they were left by one of their parents to the care of the other, then by the request or free consent of that parent, and if the child have no parents, then by the request or free consent of such person or persons as may have a just and lawful right in care of the child together, with the child’s own desire.</p> <p>“ Thirdly. All that should be received as members, being of age, that had any substance or property, that were free from debt or any just demands of any that were without, either as creditors or heirs, were allowed to bring in their substance, being their natural and lawful right, and give it as a part of the joint interest of the church, agreeable to their own faith and desire, to be under the order and government of the deacons and overseers of the temporal interest of the church, for the use and support of the church, and any other use that the gospel requires, according to the understanding and direction of those members with whom it was entrusted, and that were appointed to that office in care.</p> <p>“Fourthly. All the members that should be received into the Church should profess one joint interest as a religous right; that is, all were to have a just and equal right and privilege according to their needs in the use of all things in the Church, without any difference being made on account of what any of us brought in, so long as we remained in obedience to the order and government of the Church, and areholden in relation as members, are likewise equally holden according to their ability to maintain and support one joint interest in union and conformity to the order and government of the Church.</p> <p>“ Fifthly. As it was not the duty or purpose of the Church in uniting into Church order to gather and lay up an interest of this world’s goods — but what we become possessed of by honest industry, more than for our own support, was to be devoted to charitable uses, for the relief of the poor, and such other uses as the gospel might require, therefore it was and still is our faith never to bring debt nor demand against the Church, or each other, for any interest or services which we have bestowed to the joint interest of the Church; but freely to give our time and talents, as brethren and sisters for the mutual good one of another, and other charitable uses according to the order of the Church.</p> <p>“ The foregoing is the true sense of the covenant of the church, in relation to the order and manner of the possession and use of a joint interest, understood and supported by us, the members, and we as fully and freely, in the' most solemn manner, acknowledge and testify in presence of each other, and are free and willing to do it before all men if required, that it is that which we have kept and supported according to our understanding, from time of our first gathering, and still mean to support as that which we believe to be both our privilege and duty.</p> <p>“ And as we have received the grace of God in Christ by the gospel, and were called to follow him in the regeneration, we bad not only a right as a religious society to gather into order according to our own faith, but also we beliéve it to be the duty of as many of us, that believe, as might be for the good of the whole, to gather into the order and covenant in which we now are. We believe we were debtors to God in delation to each other and all men, to improve our time and talents in this life in that manner in which we might be most useful. We have had the experience of twenty years’ trável and labor, and received a greater confirmation and establishment in our faith, and that the order and covenant in which we have gathered and solemnly entered into, is a greater privilege, and enables us to be more useful to ourselves and others than any other state in our knowledge, and is that which is required and is accepted of God, and is that which we feel in duty bound according to our faith and understanding in the most conscientious manner to support and keep. And whereas we find by experience ánd travel for twenty years past that further provisions ought to be made for the better supporting and maintaining the joint union and interest of the church, and that each member may receive a full information and understanding /of the order and covenant which we have solemnly entered with each other.</p> <p>“ We do therefore renew and confirm our said covenant with our aforesaid elder and minister John Barnes, and with each other. We have also chosen and reappointed Samuel Pote, together with Joshua Merrill, as deacons in the church, and do hereby intrust them with all the care and oversight of all the temporal interest of the church, with full power to make all just and lawful defences in all cases in behalf of the church, for the protection and security of the joint interest and privilege of the church, as the gospel may permit, while acting in union according to the covenant and no longer ; and when by death or other means, one or both of the aforenamed deacons shall cease to act in said office, the power invested them shall be given to those members who may be chosen and appointed by the church as their successors in the like office and trust, while acting in union according to the foregoing covenant, and no longer. We do all appoint and request the aforesaid Samuel Pote, that he keep a copy, to be kept in a book provided for that purpose, a true and proper record of this covenant, together with all other acts, covenants, records, or matters, that may be necessary for the understanding and safety of the joint union and interest of the church, and we do by these presents solemnly covenant with each other for ourselves, our heirs and assigns, never hereafter to bring debt or demand against the said deacons nor their successors, nor against any member of the church or community, jointly or severally, on account of any of our services or property thus devoted and consecrated to the aforesaid sacred and charitable use. And we also covenant with each other to subject ourselves in union- as brethren and sisters, who are called to follow Christ in regeneration, in obedience to the order, rules and government of the church. And this cove - nant shall be a sufficient witness for us before all men, and in all cases relatingto the possession, order and use of the joint interest of the church.</p> <p>“ In testimony whereof, we have, both brethren and sisters, set our hands and seals this thirty first day of January, in the year oí our Lord one thousand eight hundred and fourteen.”</p> <p>To prove that the plaintiff signed this covenant the defendants called Elisha Pote, one of the elders of the community of shakers¡ and several others who were members of their family; to whose admission the plaintiff objected on the ground of interest, arising from their being covenant members of the same family. Whereupon mutual releases were produced, by which the defendants released the witnesses from all claims and demands to cohtribute, aid, or assist them in defending this suit, and from all other demands by reason of the same ; — and the witnesses released to the defendants all their interest in the common property in their hands by virtue of their office of deacons of the society J and in all other property which may appertain to the community of shakers, or to them as members of that society. The plaintiff still insisting on his objection, the Judge admitted the witnesses” to testify, leaving their credibility to the jury. These witnesses testified the fact they were called to prove ; and they were also permitted to speak of the faith and practice of the society with the same latitude which had been allowed to the plaintiff in the examination of his own witnesses.</p> <p>Upon this evidence the Judge instructed the jury that the witnesses on the part of the defendants were competent ; but that they must judge what degree of credit was to be attached to their evidence ; for though mutual releases had been given, the witnesses still regarded themselves, and were still considered by the society, as shakers; but that independent of this circumstance, these witnesses stood unimpeached before them, and with these allowances they were, like other witnesses, entitled to be believed. He also told the jury that by the plaintiff’s own shewing it appeared that he was a man of common abilities, and of competent understanding to bind himself at the time he signed the covenant, and that he must be presumed to have understood it; —that from the evidence before them there was nothing which the law recognized as compulsion or undue influence, so as to avoid the act, if the signature were really the plaintiff’s ; — that there was nothing in the covenant itself inconsistent with law, or morally wrong, which could render it void ; — and that therefore, however inconsistent with their own particular views of Christianity or religion the faith of the shakers .as developed in this cause might be, yet if they were satisfied that the plaintiff knowingly signed the covenant, their verdict ought to be for the defendants. And the jury found for the defendants. To these opinions and directions of the Judge the plaintiff excepted.</p> <p>1. The contract itself is unconstitutional and illegal, and therefore void. If illegal in part only, it cannot be sustained. 1 Dane’s Abr. ch. 1, art. 25, sec. 1 and 3. Stackpole v. Earl 2 Wils. 133, Featherston v. Hutchinson Cro. El. 199. 1 Comynon Contr. 30. 8 Mass. 46. But it is contrary to the Constitution of Massachusetts, Art. 1, as it is in derogation of the right to acquire and possess property. It infringes the duties of children and parents reciprocally to support each other ; and destroys the natural relation subsisting between them. All the property and services of the contracting parties are pledged to the association for their own support alone, no provision being made for the discharge of other obligations i</p> <p>2. The contract is also void as being against good morals. The parties to this covenant bind themselves to observe the order and rules, and submit to the discipline of the Church. To ascertain these rules, orders and customs, by which the shakers are governed, not only is recourse to be had to their own printed manuals of faith and practice, and to such expositions as they may deem it for their own interest to give ; but we are at liberty to advert to the practical application and effect of them among themselves. Otherwise any combination of men, however nefarious their real object may be, might by the public avowal of principles not contrary to law and good morals, escape merited punishment, and even under the protection of law, subvert the very foundations of society. Thus if such a combination should exist, having for its real object the propagation of atheism, or the practice of lewdness, or the destruction of the domestic reía-tions ; any individual, unwarily drawn into the confederacy, by publications and professions of a different character, ought to be admitted, by shewing its true tendency, to separate his property from that of the society, and be absolved from his engagements. Here the counsel cited many passages from the book called the Testimony of Christ’s second appearing, to shew that marriage was not admitted among the Shakers.</p> <p>Now the contract in this case, taken with its practical exposition by the Shakers themselves, goes to the destruction of marriage, which is- a moral as well as political institution» It is true that the chiefs of this association insidiously admit the lawfulness of marriage, provided it is undertaken from motives purely etherial, unmingled with any earthly ingredient whatever; but the known impossibility of the condition renders the rule absolute and the prohibition universal. And so is it well understood. The very names of husband and wife are not known among them ; and even those already united in that relation, however advanced in life, as soon as they enter the pale of this self styled Church are separated forever by an unrelenting despotism. The authority of a husband to control, and even the right to counsel and advise his wife, or to afford her his sympathy and protection, are no longer his own ; but become vested in the elders of the family, to whose gifts every member is bound to yield implicit homage. The love they have hitherto had for each other they are now enjoined to extinguish forever; and to regard their children as no longer their own. The husband and father surrenders his authority, the wife her deference, the children their obligation to obey, and all surrender their affections into the common stock, where they are lost as so many drops in the ocean. In their daily intercourse the endearing appellatives of parent and child are studiously rejected, as words without meaning. They have no ritual for the celebration of the ordinance of matrimony ; and should any among them enter into that relation, they' are immediately expelled from the society, with the anathema of interminable perdition, for disobedience to the gifts of the elders.</p> <p>Thus the Shaker’s covenant is in substance and effect a contract that the husband will separate himself from his wife ; — that he will no longer love, cherish, or cleave to her alone ; — that if she cannot profess his faith, he will not support or protect her;— that she shall no longer receive his particular sympathy or regard ; — that he will renounce all parental authority over his ehildren, and withhold from them his instruction, advice, and support; — that the wife and children shall in like manner renounce their reciprocal duties, and that those whom God has joined shall no longer be one. Can such a contract receive the sanction of law? Worcester v. Eaton 11 Mass. 368. Smith & al. v. Poor & al. ib. 519. Coolklge v. Blake 15 Mass. 429. Jones v. Randall Cowp. 39. Page v. Trufant & al. 2 Mass. 159. Brown v. Gctchell 11 Mass. 11.</p> <p>3. Its tendency to fetter and enslave tbe mind and person, is contrary to tbe genius and principles of a free government. In effect it is a contract that the party will always remain in the profession of bis present faith; under the penalty of forfeiting all his estate should he become wiser and change his religious opin-’ ions. Thus, through the medium of interest, all freedom of thought, inquiry, and action, in a subject of all others the most Important, are perpetually restrained. It is also a contract for unlimited servitude, without any other compensation than bare support; and is therefore unconscionable, and void, being in derogation of the right of personal liberty.</p> <p>Respecting the admissibility of the witnesses objected to, it was contended that the releases did not discharge their interest in the event of this suit. If the contract be valid, the property holden is the joint property of them all. The right to the personal services of each individual, is a right pertaining to every other parly to the contract; and which no member could discharge or release, except only so far as he was personally concerned. To be a good release from the whole contract, it should have been signed by all the parties to that contract, except those who were released. But the witnesses and their property are not affected by the releases produced. They are still bound t® continue with the society, and labor for the common benefit, as before ; and are still entitled to support from the common fund, for this fund is alleged to be religiously consecrated to that, among other uses. Their case is like that of a partner not named in a suit brought against others of the firm. No releases between him and his copartners could make him a competent witness for them, if his interest still remained in the joint property. Peake's Enid. 147, note a. 2 Root 498.</p> <p>The defendants have no power to release the fund from it® liability to meet the plaintiff’s demand. For by the terms of the rrovenant they have no separate property, nor can they have any-They have a joint interest in the common fund, but it is not assignable. It is merely a right to personal sustenance, when unable to support themselves ; and this is all which the defendants or-the witnesses can claim. Now the right to support being personal, cannot be claimed by substitute ; and therefore nothing passed by the release made by the witnesses to the defendants •, nor could the defendants, by their release to the witnesses, exonerate the common fund from the claim of the plaintiff. If he prevails, his judgment will and ought to be satisfied out of that property, in their hands. Equity would so decree it. Of course the witnesses would rely, for their support, upon a fund by so much diminished. Can any interest be more direct ?</p> <p>The covenant itself is an anomaly'in the history of contracts ; and if valid, is. extensively mischievous in its tendency. By its terms' the property is holden in trust, to be expended, first, for the support and maintenance of the contracting parties; — aqd secondly, for charitable purposes at the discretion of the trustees. The interest of each individual being merely a right to personal sustenance, is not attachable ; and consequently any number of men ; placing their property in this situation, the income alone being sufficient to support them in splendor, may bid defiance to all subsequent creditors.</p> <p>Against such a contract the party would be relieved in Chancery, and it ought not, therefore, to be supported in a court of law. Boynton v. Hubbard 7 Mass. 112. Greenwood v. Curtis 4 Mass. 93.</p> <p>said that whatever might be the peculiarities of the Shakers’ faith, the subject was not within the cognizance of the civil tribunals. And if it were, it would appear that they hold no tenet, affecting the outward conduct; which has not for ages been sanctioned by the common law. It does not accord with the genius and spirit of our institutions, to look for men’s faith beyond the circle of their practice ; and so far as this evidence is afforded, the case finds the moral conduct of the Shakers to be uniformly good.</p> <p>The covenant on which the defence rests, contains in itself nothing inconsistent with law, or morally wrong. It violates no right to acquire property; and it places those who leave the society, and thus abandon their share of the common fund, upon no other footing than every inhabitant of a town or parish is placed by law in relation to the public property, upon his removal from one town or parish to another. Nor is the faith of the party any more controlled by his interest in the one case than in the other, unless by the greater value of the estate. Men sometimes convey their whole property, and bind themselves to labor for the grantor during life, for no other consideration than their owm support and maintenance ; and the legality of such contracts is never doubted ; nor are they distinguishable in principle, from the case at bar.</p> <p>Neither is this a contract in restraint of marriage. The book referred to does not contain any reprobation of marriage itself, but only of the unhallowed motives with which it is often contracted. It denounces all impurity, as being destructive of the life of religion in the heart of man ; and insists on the sacrifice of every pleasure in its nature polluting. And however some may err in the application of these principles to real life, their errors form no objection to the principles themselves.</p> <p>But if marriage were forbidden to every shaker, under any circumstances, the legality of the covenant would not be affected by the prohibition, it being only a contract at will, continuing while the party shall continue in their communion. In this respect it stands upon the same basis with the contract that an apprentice shall not marry while in his master’s service ; the regulation that a scholar shall not contract matrimony during his connection with his college ; and with devises of estates during widowhood ; all which have been recognized as good in law.</p> <p>Nor is its tendency to enslave the mind any stronger in principle than every other engagement or employment affecting in any degree the religion or conscience of the party. Such, virtually, are all contracts with clergymen for their settlement and support; and the tenures of some professorships in public seminaries, &c. in each of which cases the incumbent must adhere to the distinguishing tenets of his sect, or renounce his living. He accepts the benefice with a full understanding of the whole import of the condition, which it is reasonable he should be holden to perform.</p> <p>If any part of the covenant is void at common law, as being immoral or against public policy ; it is void for that part only; there being an acknowledged difference in this respect between the common and statute law. 5 Vin. Abr. 98, pi. 7, and authorities there cited.</p> <p>And if the services of the plaintiff have been rendered under a contract wholly void as against the policy of the law, he cannot recover wages, being himself a willing party in the offence. The law does not lend its sanctions to enforce either side of a contract thus tainted ; but it leaves the parties as it finds them. Bland v. Robinson Doug. 679.</p> <p>The admissibility of the witnesses they considered as settled by the case of Anderson & al. v. Brock 3 Greenl. 243.</p> <p>The argument of this cause was had at the adjourned term of this court in April last; and the opinion of the court was now delivered as follows, by</p>

This was an action of debt on ajudgment rendered by the Supreme Judicial Court of Massachusetts, in the county of Middle-sex, at March term 1824, upon a scire facias brought by the Treasurer of State, to have execution for the benefit of one Palmer, of a judgment rendered prior to the separation of Maine, for the penalty of the bond of office given by the late sheriff M’Millan, of the county of Oxford.

This was an appeal from a decree of the Judge of Probate against receiving and filing a certified copy of the last will and testament of James Dunn, late of the city of Dublin, in Ireland. Mr. Dunn, many years since, resided in this county, where he left personal estate, on which administration had been granted to another person, and afterwards to the appellee.

<p>The legislature of this State has no authority, by the constitution, to grant a review of a suit between private citizens.</p>

This was an action of replevin, against a deputy sheriff, for divers goods, the property of which the defendant alleged to be in one John B. Cross, against whom he had several precepts, by virtue of which the goods were attached, July 15, 1825. At the trial, which was before the Chief Justice, the plaintiff produced a bill of parcels of the goods, made by Cross to him, comprising his whole stock in trade, and receipted in full in common form, bearing date July 8, 1825.

This was an action of debt on tbe bond given by Syharms Drink-water, as administrator on the estate of Pyam Prince, for the benefit of whose children this suit was commenced against Drink-waterh administrator.

J}.sswmpsit by Nathaniel J. Miller as indorsee of a promissory note given in 1807 by Bewail Lancaster, to the defeudent Thomas Lancaster his father, and by him indorsed to Rebecca Miller, and by her indorsed to her son, the plaintiff, without recourse to the indorser.

<p>Is an action of assumpsit upon a promissory note for more than twenty dollars, given in the year 1799, the defendant objected tí» the competency of the note as evidence to the jury, because it was not stamped according to the act-of Congress of July 6,1797, nor had the plaintiff paid the duty of ten dollars and obtained the certificate of the collector, under the act oi.Bpril 6, 1802. But the Chief Justice, before whom the cause was tried, admitted the note in evidence, and a verdict was returned for the plaintiffs subject to the opinion of the court.</p> <p>cited Edeck v. Ranuer 2 Johns. 423.</p> <p>contended that whatever may be the law upon the question raised at the trial, the verdict ought not now to be disturbed, the note having been stamped since that time, and the extra duty paid.</p>

This was an action of trover for a bag of money, stolen in July, 1824, by the defendant, who has since been convicted of the larceny and sentenced. This action was commenced before the conviction.

This was an action on the case for maliciously and without probable cause procuring the plaintiff to be indicted for the crime of maintenance, and for buying a disputed title to land.

<p>This was an action of replevin for a horse, which one Seed purchased of the plaintiff on credit, July 12, 1S24, and which the defendant claimed to have bought fairly of Seed. The plaintiff' sought to avoid the sale and reclaim the horse, on the ground that it was obtained from him by means of false and fraudulent representations made by Seed respecting his own property, credit, and responsibility, and that the defendant was party to the fraud.- At the trial, before the Chief Justice, the plaintiff, having proved the false representations made personally by Seed to himself, proposed, with a view to connect him with Dinghy, to prove that Seed, on the 9th and 10th, and on one or two other days in July, and also on the 19th day of August, had made similar false repre* sentations to other persons, from whom he had succeeded in obtaining goods to the amount of between four and five thousand dollars. This evidence was objected to, but the Chief Justice admitted it, as tending to shew a fraudulent intention to obtain the possession of a great quantity of goods without payment; instructing the jury, first to consider and decide whether the representations made to the plaintiff were false and fraudulent, with intent to gain possession of his horse and not to pay for him ; and then to ascertain whether the false representations made to the others were made for similar purposes; and whether they all were parts of a plan formed by Reed, to defraud the parties of their property. If they should be satisfied of the existence of such fraudulent design and of its execution on the part of Reed, then he instructed them to inquire and decide whether Dingley was acquainted and connected with it; and whether the transfer of the horse from Reed to him by exchange was made to render the original fraud effectual, under the appearance of a fair purchase. If so, then this action was maintainable against Dingley, but if he was innocent of the fraud, and purchased the horse for a valuable consideration, without notice, they ought to find for the defendant.</p> <p>The jury found for the plaintiff; and informed the court that independently of the false representations made to others, those made to the plaintiff by Reed were false and fraudulent, and made with the design to cheat him out of his property ; and that Ding-ley was assenting to and connected with the fraud. The verdict was taken subject to the opinion of the court upon the question whether the evidence was properly admitted, and the jury correctly instructed.</p> <p>the opinion of the court was delivered at the following September term in Lincoln, by</p>

Tuts was an action of assumpsit by Thomas Jordan, against the administratrix of the estate of his brother Timothy Jordan, for the use and occupation of a farm, from the year 1783 to o2m-gust 1821 ; and was triedbefore the Chief Justice upon the pleas of now assumpsit, and the statute of limitations. It appeared that the father of the plaintiff, being owner of the farm, made his will in 1761, and died seised in 1783, having devised the farm to the plaintiff in fee.

This was an action of assumpsit on a collateral undertaking of the defendants to guaranty tlie performance of a contract entered into by Joshua Gordon, relative to the insurance of a quantity of mahogany on board the brig Sam, on a voyage from St. Domingo to the island of St. Thomas. It was tried before the Chief Justice, upon the general issue. The original undertaking was as follows.— “ I the undersigned do hereby insure to Messrs.

In this case, which was a writ of entry, brought upon a mortgage deed by the assignee of the mortgagee, against the grantee the mortgagor; the tenant pleaded that the note, to secure which the mortgage was given, was usurious ; and this being traversed, issue was joined thereon.

<p>In this case, which was an action of trespass quare clausum fregiL the defendant justified under an extent made upon the locus in quo July 16, 1824. as the property of one fVaterhov.se ; and the plaintiff claimed the land by virtue of a deed from Waterhouse to him, dated April 5, 1823, subsequent to' which time Waterhouse had continued to occupy the land as his tenant. This conveyance the defendant sought to impeach, on the ground of fraud.</p> <p>At the trial, before Preble J. at the last November term, it appeared on the part of the defendant, that on the 13th day of September 1821 one James March,' being appointed a deputy sheriff, gave bond to the sheriff, in which Ward and Waterhouse, with two others, were sureties; — that March died insolvent about the first of April 1823; — that the sheriff sued this bond against the sureties, and recovered judgment at March term 1824, by default, for the penalty, with an award of execution for ‡377,06. This execution was fully paid by Ward, May"14,1824. The sum for which it was awarded was composed of the sheriff’s proportion of fees, accrued from the date of the bond to the time of March's .death; together with the amount of a judgment which one Washburn recovered at th.e same term, against the sheriff, for March's neglect in not paying over moneys he had collected on an execution in favor of Washburn, which was issued after October term 1821, and was returnable in January 1822 ; prior to which time March had received the money.</p> <p>Ward sued Waterhouse May 18,1824, for his proportion of the money thus paid to the sheriff; and having recovered judgment by default, extended his execution on the locus in quo, and proceeded soon after to cut the hay. The officer’s return described the appraisers as “three disinterested men, freeholders of said “ county” ; without certifying that they were “ disinterested “ and discreet men, being freeholders” &c. in the words of the statute.</p> <p>The bond given by March to the sheriff, upon his appointment to the office of deputy sheriff, was conditioned, among other things, that he should “ refuse to accept or hold the office of Constable “ of any town within said county of Cumberland.”'</p> <p>Upon this evidence the plaintiff’s counsel, at the proper stages of the cause, objected ; 1st — That Ward had no right to impeach the conveyance from Waterhouse to the plaintiff, because, at that time, he was not a creditor ; 2d- — That the bond to the sheriff was an illegal bond, and could not be enforced at law, as it restrained the deputy from serving in the office of constable, which the statute made it his duty to do, if elected; 3d — That the levy of Ward's execution against Waterhouse was void, because it did not appear that the appraisers were discreet" men, as we 11 as disinterested, and freeholders.</p> <p>These objections the Judge overruled, in order to try'the principal questions of fact; and permitted the defendant to offer evidence to prove that the conveyance by Waterhouse to the plaintiff, was made for the purpose of putting the property out of the reach of the sheriff, in any suit upon the bond; of which the plaintiff was conusant; and that it therefore was in law fraudulent and void. And upon this point, after hearing evidence on both sides, the jury returned a verdict for the defendant; which was taken subject to the opinion of the court upon the points made by the plaintiff at the trial.</p> <p>1st — That to entitle the defendant to impeach the conveyance for legal fraud, it must appear that he was a creditor at the time it was made ; and a surety has not the character of a creditor till the rendition of judgment against him. Fules v. Thompson 1 Mass. 134. 1 Dane's Jlbr. (128, sec. 20.</p> <p>2. The bond from ¿March to the sheriff was illegal, because it was conditioned to refuse an office which the statute of 1821 ch. 116, made it the duty of every citizen to accept, under a penalty enacted against his refusal to take the oath of office. For where a duty is prescribed by statute, a bond conditioned to omit it is wholly void, even though it contain other conditions which, if standing alone, would be good. 5 Vin. Jlbr. 98, Condition V. pi. 7, 8. Guppy v. Jennings 1 Jlnstr. 256. Wheeler v. Russell 17 Mass. 258. Layngv. Paine Wille,?571. 3 Bac. Jlbr. 703 — 705. tit. Obligation.</p> <p>3. The extent was void, because it does not appear that the appraisers were “ discreet” men. The statute requires that they should be not only “ disinterested,” or free from bias, and “ freeholders,” practically acquainted with real estate; but “dis- “ creel” men; that is, men capable of discerning its true value ; and not imbecile of judgment. Each of these qualifications is made indispensably necessary in an appraiser ; and every thing made necessary by statute, must appear in the officer’s return. Williams v. Amory 14 «Mass. 20, 29. Eddy v. Knapp 2 Mass, 154. Ladd v. Blunt 4 Mass. 402. A creditor claiming under this sort of involuntary conveyance, must shew a strict compliance with every statutory provision. Waterhouse v. Waite 11 Mass. 207. Bottv. Burrell 11 Mass. 163. Tate v. Jlnderson 9 Mass. 92. Allen v. Thayer 17 Mass. 299. And of this defect even a stranger may take advantage, the extent being merely void. 7 Bac. Abr. 68, tit. Void & Voidable F.</p> <p>replied to the first point, that the plaintiff’s deed, being found to be fraudulent, was void as well against subsequent as prior creditors. The principle contended for by the plaintiff applies only to voluntary conveyances, and not to those which are fraudulent. Damon v. Bryant 2 Pick. 411. Roberts Fraud. Corn. 17, 27,521, 522. And if it were not so, yet the defendant was a creditor at the time of the conveyance, the condition of the bond being then broken, and the rights of all parties fixed.</p> <p>To the second point they said, that the statute of this State could not be construed imperatively to require the acceptance of any town office; but was rather tobe understood as conferring the privilege to accept or to waive it; and that this objection was not open to the plaintiff, he being a stranger to the contract, and his title illegal.</p> <p>The third objection, they also insisted, the plaintiff was not entitled to take, for the same reasons. Daggetv. Adams 1 Greenl. 198. Lawrence v. Pond 17 Mass. 433. Williams v. Amory 14 Mass. 20. Barret v. Porter ib. 143. Atkins v. Bean & al. ib. 408. Nor can the objection be sustained ; for the law presumes every man discreet, till the contrary appears.</p>

In this case, which was trespass quare clausum fregil, and was tried before the Chief Justice, upon the general issue ; the plaintiff derived his title from the heirs of Hannah Fairweather ; and for proof of their pedigree he relied on the recitals in certain deeds, made in the years 1779 and 1780, in which Hannah Winthrop and JJnne Mason styled themselves her daughters, and conveyed their shares, being one third each; and in which Samuel Fairweather conveyed one third “…

The petitioners in this case prayed for partition of a small parcel of land which they held in common with the respondent; who resisted their petition, under the plea of sole seisin.

In this case, which was an appeal from the decree of the Judge of Probate refusing probate of the will of Henry Small, the principal question was whether, under the circumstances proved, the testator intended the instrument as his last will, or only as an expedient, to operate in terrorem upon a child who had incurre^ his displeasure. The facts sufficiently appear in the opinion of the court, which was delivered at the following .November term by

<p>In an action for a malicious prosecution, the want of probable cause is a material allegation ; the omission of which is not cured by a verdict for the plaintiff, nor supplied by an allegation that the prosecution was unjust.</p>

This was an action of trespass quart clausum fregit, for taking a barn and blacksmith’s shop from the plaintiff ’s land; and was tried before Preble J. upon the pleas of not guilty, and a license from the plaintiff.

This was an action of tbe case against the defendant, wbowas a deputy sheriif, for making a false return upon an original writ; and it came up to this court upon exceptions taken to the opinion óf the court below.

This was a writ of entry for certain lots of land in Paris, in which the demandants counted on the seisin of George Innman, their father, within forty years. It was tried before the Chief Justice, upon the general issue, at Jlugust term 1824.

<p>The question in this cause arose upon a case stated by the parties, to the following effect</p> <p>Weld, the defendant, in 1820 entered into a parol contract with Holland and three others jointly, that if they would buy his timber lands in plantation No. 4, at a certain price, he would clear the obstructions out of Webb’s river, so that they might float the timber to market; whereupon they bought the lands, as tenants in common. Afterwards, some dispute arising, he obtained from one Jlustin, who was one of the contracting parties, a release, under his seal, of the following tenor “ I the subscriber hereby dis- “ charge and release Benjamin L. Weld ñom any liability to me “ for any damage sustained in consequence of the nonperformance “ hitherto or hereafter of any contract to clear the rips in Webb’s river, by him heretofore made, or alleged to have been made In witness” — &c.</p> <p>Holland then sued Weld for so much damages as he had sustained in his own separate timber, by the existence of such obstructions as the defendant had undertaken to remove ; setting forth the original contract with the four, and the release given by Austin, whereby a right accrued to each party to maintain an action for his separate damages. And the question was whether the release was available to the defendant, to defeat this action.</p> <p>contended that though the defendant had originally a right to require the joinder of all the parties, in a suit against him ; yet having made a settlement with one of them for his particular damages, he had destroyed the joint character of the contract, and left each of the others at. liberty to assert his own claims in a separate action. Baker v. Jewell 6 Mass, 460.</p> <p>insisted that the effect of the release was to discharge the whole subject matter of the contract. It was not in the power of any one of the promissees to change its character from joint to several ; nothing could effect this, short of the assent of all who were originally parties to the agreement.. Until they all should assent to the contrary, it would remain a joint contract, the remedy on which any one of the promissees might destroy, by his own release ; thereby rendering himself accountable to the others. And such was the case here, Austin having absolved the defendant from the obligation, and placed himself in his stead, in relation to the other .parties. Wilson v. Moor 5 Mass. 407.</p> <p>If it is not so, yet the case cited on the other side, when properly understood, will be found to go no farther than to determine that the defendant, after a settlement with one of several joint promissees, is answerable to the others jointly ; the contract still continuing joint, as far as any are concerned who were not parties to the settlement. Any other construction would tend to a multiplicity of suits, and introduce great confusion in the apportionment of damages by different juries, and upon different principles.</p>

The declaration in this case, which was an action of assumpsit, contained one count for money paid to the town of Dresden for the support of the defendant’s wife as a pauper, her legal settlement being in Alna ; and another count for the price of a pew in the meeting house in Alna ; alleged to have been sold by auction to the defendant.

This was an action of assumpsit against the defendants, who were owners of the brig Milo, for the price of a quantity of boards alleged to have been sold and delivered to them.

This was an action brought to recover double damages for the breaking of the plaintiff’s leg, occasioned by the badnesr of a usually and publicly travelled town way,” within the town of Montville. The writ was dated July 12, 1823.

<p>Trover for a bond, given by a third person to the plaintiff; and conditioned for the conveyance of certain lands, upon the plaintiff’s returning to PMpsburg, and residing there one year. At the trial of this cause, which was before Preble J. at the term in which it was first entered in this court, the defendant, in open court, tendered the bond to the plaintiff, in mitigation of damages, and contended that it ought to be received ; but the plaintiff refused it, and the judge ruled that he was not bound to accept it. It did not appear that the plaintiff had ever performed the condition precedent, mentioned in the bond ; and it was proved that the obligor had conveyed the lands, which are worth four hundred dollars, to another person, and had removed out of the State.</p> <p>Upon, this evidence the Judge instructed the jury that the plaintiff’s damages ought not to be diminished by the tender of the bond ; but that as he had refused to receive it, the judgment on the verdict in his favor in this case, would operate as an assignment of the bond to the defendant. In the assessment of damages he directed them to ascertain the value of the lands, and from this amount to deduct what it would have cost the plaintiff to have removed from the city of St. John, in New Brunswick, the place of his former residence, to PMpsburg, and to have complied with the previous condition on his part to be performed; returning their verdict for the plaintiff for the balance thus found; which they accordingly did. The verdict was taken subject to the opinion of the court upon the law, and the rule of damages, as stated by the judge to the jury.</p> <p>contended that the bond ought to have been received, even if offered in discharge of damages ; much more when offered only in mitigation of them ; its value not being impaired. The early decisions to the contrary were all considered by Lord Mansfield, and overruled, in Fisher v. Prince 3 Bmr. 1362. And afterwards by Lord Kenyon in Pickering v. Trustee & als. 7 D. & E. 52. 2 H. Bl. 902. 1 Belton’s Practice 283. Our own decisions will at least justify a return of the property in trover, in mitigation of damages, at any time before the rendition of judgment, the property being, until that time, in the plaintiff. If it be injured, the jury will estimate its value. Wheelock v. Wheelwright 5 Mass. 104.</p> <p>As to the rule of damages, they said that the detention of the bond was a subject on which the plaintiff ought not to be permitted to speculate; he could entitle himself to no greater damages than he had actually sustained. The bond was worth to him just what he could recover upon it, if the present suit ivas against the obligor ; in which case nothing could be recovered, because the obligee has never performed the condition precedent; and of course his damages in this action can be but nominal. Clowes v. Hawley 12 Johns. 484. Nor could it be of any greater value to the defendant, if assigned to him by the judgment ; since he has no means of compelling the plaintiff to do the act on which the obligation of the other party depends.</p>

This was a scire facias to the defendants, to shew cause why the plaintiffs should not have a plañes execution on a former judgment in their favor against the same defendants ; the first execution having been extended on land which, it was alleged, did not belong to them.

In debt for the penalty annexed to an agreement to submit a controversy to arbitration, the agreement was set forth as follows ; — “ Whereas a-dispute has arisen and exists between Jlbijah and Joseph Dickinson on the one part, and Joseph G. White bn the other, in respect to the line between their lands situated in Wisc'asset, in the county of Lincoln, and bounded northwesterly on Monsweag brook, so called ; and whereas the parties aforesaid have mutually agreed to submit the…

IN this case, which was trespass quare clausum fregit, both parties claimed title to the locus in quo; which was a parcel of flats, and a small border of upland, adjoining a larger parcel which formerly belonged to Robert Sedgley.

This was an action of assumpsit for the support of one .fames Shea a pauper, of the age of 18 years.

This was an action of assumpsit for the support of Betsey Perkins, a pauper, daughter of Joseph Perkins, with whom it appeared that she lived and had her home in Harlem, now China, on the… Held: since the case of Pughv. I). of Leeds, that, the day was to be excluded; yet in every case of this Idud an act is done on the day ; and the difference is only in the form of expression. The rule in The King v. JMderley is professedly derived from the case of Bellasis v. Hester 1. Ld.

This was an action of replevin for goods and merchandize detained in the town of Gardiner; and was tried before Weston J. upon the issue of property in the defendant.

In this case, which was a complaint for flowing lands of the complainant, the respondents pleaded in bar that the land “ had not been flowed and rendered of no value and use to the complainant” by reason of their mill-dam ; on which issue was taken to the country ; and the jury found that the lands had been so flowed and rendered of no value and use, &c. Hereupon the respondents moved that the verdict be set aside, because the issue made up and tried by the jury was not…

<p>In a libel for divorce .for the cause of adultery, the record of the party’s conviction for that offence will be received, after default, in proof of the crime charged in the libel.</p>

This was a writ of entry, in which the demandant claimed to recover seisin and possession of a tract of laud, described in the writ as part of lot numbered 226, and bounded as follows “beginning outlie easterly line of said lot, at the distance of 160 rods from the northeast corner of said lot ; thence west’ north-west 67 rods; thence southerly, at right angles, about five rods to land in possession of said Gove ; thence easterly, parallel with the first mentioned line, 67…

This was an action of debt, to recover the penalty in Stal. 1821, eft. 134, see. 1, for selling goods at public vendue, the defendant not having been duly licensed therefor.

This was a writ of error brought to reyerse a judgment of the Court of Common Pleas, in which the plaintiff in error was defendant. From the bill of exceptions it appeared that the action was assumpsit for goods sold, of which a bill of particulars was annexed to the writ; to which the defendant pleaded the general issue and the statute of limitations ; haying also filed his own account in offset.

The question in this case was whether the will of Joseph Thomas was revoked ; he having devised part of his real estate to his daughters, and the residue to his two sons, whom he also made residuary legatees ; and aftenvards having in his lifetime sold and conveyed the same land to one of the sons, by deed.

This was an action of replevin for certain goods, which the plaintiff had delivered to one Reed, on a credit which had not expired when this action was brought, it appeared that Reed obtained the goods by false representations, mode by him when the goods were delivered. On discovery of the fraud, the plaintiff replevied the goods, insisting on his right to vacate the contract of sale, and reclaim them as his own. The issue was upon the property of the plaintiff.

This was a bill inequity, containing the following allegations. The plaintiff, being indebted to one Johnson in the sum of two hundred dollars which he could not then pay, obtained of Johnson the promise of a credit of six months for one half of the debt, and twelve months for the other half, upon condition of furnishing a Satisfactory surety.

<p>At the trial of this action, which was a writ of entry for lands in Mount Vernon, the demandant claimed the land under one David Philbrook; and to support his title, called a witness, whe* testified that about a year before the death .of one Benjamin Philbrook, who owned several parcels of land in Mount Vernon, the said Benjamin and David called the witness and his brother. to subscribe their names as witnesses to a deed, made at the same time, from Benjamin to David, of a tract of land in that town ; and they accordingly did so subscribe their names. He also testified that the deed was acknowledged before a magistrate, and was handed by David to the witness, to be kept till he should return from the eastward; and that about three months afterwards he called for and received the deed. The witness did not particularly recollect that it had a seal.</p> <p>The demandant proposed further to prove, by the same witness, that the grantor, at the time of executing the deed, declared, that it was a conveyance of the premises demanded in this action. But Weston J. before whom the cause was tried, rejected this testimony as inadmissible.</p> <p>There was no evidence of the loss or destruction of the deed ; nor that any search or inquiry had been made for it. Bui the evidence rejected was not objected to on that ground ; the trial proceeding upon the assumption on the part of the deman-dant that the deed, if it ever existed, was lost or destroyed ; and proof of the latter fact was not required or called for on. the part of the tenant.</p> <p>A verdict was taken for the tenant, subject to the opinion of the court, upon the question whether the evidence rejected ought to have been received.</p> <p>contended that the proof ought to have been admitted. It was part of the res gesta. The declarations of a grantor, made before or at the time of the conveyance, are always admissible, if made against his interest, and not prejudicial to rights of third persons existing at the time. The proof offered was precisely of this character. Bridge v. Eggleston 14 .Mass. 245. The evidence admitted went to prove the existence of a deed of land in Mount Vernon, which was lost. The party offered further to designate the land, by the same mode of proof ; which wms nothing more than giving in evidence the whole of the grantor’s declarations made at the same time, and relating to the same subject ; where a part of those declarations was confessedly admissible, upon oeknowi edged principles. The matter of the seal sm wholly for the jury to determine, upon the evidence before them.</p> <p>argued against the admissibility of the evidence proposed, because no foundation was laid by the previous introduction of the preliminary proof of diligent but ineffectual search for the deed. It was not denied at the trial that the deed, if it ever existed, was now lost ; but the point in issue was, whether any such deed ever existed. The evidence offered to shew this, was nothing more than hearsay ; and the death of the grantor gives it no higher character. Grayv. Goodrich 7 Johns. 95. 15 Johns. 493. 1 East 313. The declarations of a grantor can never be admitted to prove the existence or contents of his own deed. He cannot explain its latent ambiguities ; 1 Mass. 91 — even though he may not be interested in the event ; 2 Day 121 — nor can he defeat it ; 12 Mass. 439.' Bridge v. Eggleston 14 Mass. 245. I Johns. 159; — for such testimony would violate the statute of frauds. 6 Johns. 19. And as to the, argument that, the testimony offered was against the grantor’s interest, the rule does not apply to lands ; nor can the court determine whether it was against his interest or not. 11 Johns. 437. 15 Johns. 286. Such declarations, even if made in extremis, are not received. 2 Johns. 31. 16 Johns. 302.</p>

This case, which was a writ of entry, came before the court upon a statement made by the parties ,in which it appeared that the demanded premises were once the estate of the tenant, and that the demandants claimed title under the extent of an execution in their favor against him.

This was an action of trespass quare clausum fregit, in which a case was stated hy the.parties, presenting the question whether the plaintiff had title to the locus in quo, which was a lot reserved for the use of the first settled minister in the town of Harmony. , The plaintiff was a minister of the denomination of calvinist baptists, regularly ordained according to the usages of that sect of ehristians.

This case, which was repleviu for a yoke of oxen, came before the court upon exceptions filed to the opinion of Perham J. in the court below. It appeared, at the trial below, that the oxen were originally the property of Samuel Walker ; or, at least, that he was the agent of his mother, who owned them, and by whom he was authorized to sell them to the plaintiff.

<p>This was an action of assumpsit, brought to recover the amount subscribed by the defendant, in aid of the funds of Foxcroft Academy. The subscription paper recited the incorporation, the terms and conditions on which it was granted, and the solicitude of the subscribers for the establishment of the academy ; and thereupon an engagement on the part of the subscribers, to pay to Samuel Chamberlain Esq. treasurer of the trustees, or his successor, the sums set against their respective names. The defendant subscribed “twenty five dollars, in labor or materials.”</p> <p>At the trial in the court below, before Perham J. a general objection was taken by the defendant against his liability on the subscription paper ; which the judge overruled, and a verdict was returned for the plaintiffs. Whereupon the defendant filed exceptions, pursuant to the statute. Several other objections occurred in the progress of the trial ; but the case was decided upon the point already stated.</p> <p>relied on the cases of Bridgewater Academy v. Gilbert, 2 Pick. 579. Limerick Academy v. Davis 11 Mass. 113, and Farmington Academy v. Alien 14 Mass. 172.</p>

This case, which was assumpsit against the defendant as accep tor of an order, came before the court upon exceptions filed by the defendant to the opinion of Smith J. before whom it was tried in the court below. It appeared that on June 10th, 1822, Kelly & Coates drew an order on the defendant for sixty dollars, in favor of John Swett; Which the defendant on the day following accepted, to pay in six days.

Assumpsit, against the defendant as guarantor of the payment of a promissory note; dated March 8, 1820, made by one Jedutlmn Upton, and payable to the plaintiff on demand.

This was a bill hi equity for the specific performance of a special contract in writing, of the following tenor; — “It is agreed between Mr. Chrisp Bradbury and myself, that if I purchase some land of the heirs of Cyrus King Esq. at auctisn next. Monday, that said Bradbury shall have thirty feet always to be kept open, adjoining to said Bradbury's house, on the north-west» erly side of his house, at a fair and equitable price, according to what Í may purchase at.

<p>If a creditor, having demands accruing partly before and partly after a conveyance by his debtor, which he would impeach on the ground of fraud, blends them all in one suit, and having recovered judgment, extends his execution on the land ; he can come in only in the character of a subsequent creditor.</p> <p>If a creditor, to secure his debt, takes from his debtor an absolute conveyance of land, giving his parol promise to reconvey on payment of his debt; this is not void against other creditors, without proof of actual fraud.</p> <p>And if the debtor, in such case, having paid the debts, instead of taking the recon-veyance directly to himself, procures the deed to be given to a third person, between whom and himself there was a corrupt intent to deceive and defraud his creditors ; yet a subsequent creditor cannot impeach this conveyance, no estate having passed back to the debtor.</p>

<p>This was assumpsit, brought to recover of the defendant the value of a quantity of boards, which the plaintiff bad shipped on board the defendant’s sloop to Newburyport, consigned to the master ; and it came before this court by a writ of error upon the judgment of the court below.</p> <p>At the trial in that court, before Smith J. the plaintiff called Coolbroth, the master of the sloop, as a witness; by whom it was proved that the vessel was let to the master on shares; the master to victual, man and sail the vessel, and to receive one half the freight money, and five dollars for each trip she might perform ; — that she was nearly loaded with wood by Granger, Seamman & Co. at the mouth of Saco river, at some distance from the defendant’s house ; but not being fully freighted, the plaintiff, at the request of the master, shipped the boards in question, consigning them to the master for sales and returns. The boards were landed at Neioburyport, and sold by the person to whom the wood was consigned,for the plaintiff’s account, and the proceeds paid over to Coolbroth. On his return to Saco, he handed the account of sales of the plaintiff’s lumber to Mr. Gran-ger, of the firm of Granger, Scamman & Co. requesting him to pay the plaintiff, out of the freight money due on that trip, which he agreed to do. This arrangement was afterwards stated by the master to the plaintiff, and by him assented to. The master at this time was indebted to the defendant, but not on account of freight money.</p> <p>While the vessel had been thus employed by Coolbroth oE shares, he had several times contracted for the freight, at the defendant’s request ; because, he said, Coolbroth could make the best bargain; and the freight money had been received by either of them, as was most convenient at the time.</p> <p>The plaintiff subsequently spoke to Granger respecting the sales of his lumber, and was informed of the arrangement made by the master for payment of the balance due him, which he did not disapprove. Granger would then have paid him, had they met at his place of business. After this, the defendant, calling on Granger for the freight of the wood,was made acquainted with the preceding transactions, of which he expressed his disapprobation; denying the right of Coolbroth so to appropriate the freight money, and claiming it as belonging to himself. Granger then settled with the defendant for the freight of the wood, the amount of which was fifty one or two dollars, and paid him a balance of about twenty eight dollars, the residue having been previously advanced to Coolbroth ; taking the defendant’s written promise to indemnify him for paying it over. The vessel had been in the empl'oy of the same persons for several preceding trips ; and the freight account had been settled by Granger with the master, who had generally taken a note payable to the defendant for his half of the freight money.</p> <p>It was proved to be customary at Saco, when lumber was shipped on freight, for the master to sell it, and pay over the proceeds himself to the owner of the lumber ; unless he had orders to the contrary.</p> <p>The defendant filed an account in offset ; in which, among Other things, he charged the plaintiff with the freight of the lumber in question.</p> <p>The judge being of opinion that, upon this evidence, the defendant was not liable, and a verdict being thereupon returned fe bis favor, the plaintiff filed exceptions. The record was brought up, on an assignment of the general error.</p> <p>argued first upon the general liability of the defendant, as owner of the vessel, to fulfil every lawful contract made by the master, relating to the ship The only exception to this rule, he insisted, was where the master was owner pro hac vice ; and in the present instance the master was not within the exception, even upon the strongest adjudged cases. In Reynolds v. Toppan 15 Mass. 370 the hiring was for a certain time, and by a written agreement. So in Taggard v. Loring 16 Mass. 336. In both those cases the contract was certain, and the master had the absolute control of the vessel, during the stipulated time. But in the present case the contract was at the will of the owner ; who denied the rights of the master to appropriate the freight money ; treating him as his servant, removable at his pleasure.</p> <p>2. The defendant is liable, because he adopted the act of the master, by charging the freight to the plaintiff in account ; and by claiming the freight money of Granger. The contract of the master was binding on the owner, even without such adoption. Jlhbot on Shipping 136. And it was not out of the course of his legitimate power to bind the owner ; for his contract to bring home the money rests on the same principles with his contract to carry the goods. Kemp & al. v. Cov.ghtry & al. 11 Johns. 107.</p> <p>3. But if the defendant is not liable as owner, yet he is liable on the count for money had and received ; by taking from the hands of Granger the money deposited there for the plaintiff. If the defendant claimed it as owner, he is liable as owner ; if not, he could not touch the money, but by action. 1 Com. Big. Jlssumpsü E. 205. Hall v. Mansion 17 Mass 575. Arnold v. Lyman ib. 400. Mason v. Waite ib. 560.</p> <p>contended that the plaintiff’s remedy was against the master alone, he being the owner pro hac vice. He had an interest in the vessel for each voyage, from its commencement, and could not be removed without his owb consent. Abbot, 184,31. Reynolds v. Toppan 15 Mass. 370. Taggard v. Loring 16 Mass. 336. Frazer v. Marsh 13 East 238. Wherever the charterer has the whole management of the ves« sel, or is to victual and man her, he is deemed the owner. Mc-Intire v. Brown 1 Johns. 229 Hallet v, Colvmb. Ins. Co. 8 Johns. 272. Thompson v. Snow ante p. 264. Vallejo v. Wheeler Cowp. 143.</p> <p>But if the owner is in this case liable in general, his responsibility does not extend beyond the safe delivery of the goods at the port of destination. The cargo is then, in judgment of law, in the possession of the consignees. And if the master, being consignee, sells and misapplies the proceeds, he alone is responsible to the owner of the cargo. The owner of the ship is only bound for the acts of the master relative to her employment ; and this chiefly in respect of the receipt of the freight, which is earned as soon as the goods are landed. Pothier on Mar. Contr. 22. Jacobsen’s Sea laws 222. United Ins. Co.v. Scott 1 Johns. 106.. Abbot, 178, note 132, 137. In this case, moreover, the plaintiff made a special contract with the master, not for the transportation of his goods, but for the disposal of them after they were landed.</p> <p>As to the receipt by the defendant of the money in Granger’s hands ; no claim can be founded upon it in favor of the plaintiff. The defendant received in fact less than his own share of the freight money. And this share the master could not, on any principle, apply to the use of the plaintiff. Granger could pay over to the plaintiff only such money as the master might lawfully appropriate, and this was only his own proportion. The count for money had and received cannot therefore avail the plaintiff ; especially as it is controlled by the bill of particulars annexed t® the writ.</p> <p>Nor can the defendant be regarded as having adopted the act of the master, by charging the freight of the goods in his account filed in offset; since he is entitled to protect himself by that precaution, against an adverse decision of the cause. And as to the custom, the evidence shews that the master is regarded as the agent of the shipper, who looks to him alone.</p>

This was an action of assumpsit against Tristram Eaton, the maker of a promissory note dated Jlpril 12, 1815, payable to his brother Humphrey W. Eaton, and by him indorsed to the plaintiffs. It was tried upon the plea of the statute of limitations.

This was assumpsit, on a promissory note, dated Jipril 20,1 HIT made bj William ¡Smith the defendant, to his son George Smith, paj-ibie on demand, and by him indorsed to the plain!iff.

<p>This was assumpsit upon a promissory note, dated Nov 24, 1815, made by the defendant jointly and severally with Jonas Clark and Henry Clark, payable to the plaintiff as administrator of the estate of Nathaniel Lord, for the use of said estate, in the sum of 8000 dollars, in six months from the date. It was assigned JJpril 1, 1816, by a writing on the back of the following tenor, — “ Pay widow Phebe Lord or order, value received, in division of the estate, without recourse on us,” — which was signed by the plaintiff and by Henry Clark, who was also an administrator on the estate. The interest was paid and indorsed, up to Nov. 24, 1821.</p> <p>At the trial, it appeared that the note was given by the makers, for a vessel, which they jointly purchased of the administrators of Mr. Lord's estate, to which it belonged, and in which they were equally interested. Some time after the date of the note, the affairs of Jonas Clark became embarrassed, and a compromise was effected with his creditors. Mr. McJCulloch holding Mr. Clark's note for about nine hundred dollars, and being his surety at the bank for another less sumVp rpposed to give up his note of nine hundred dollars, provided he could bis discharged from his suretiship at the bank, and Mr. ÍClark could be discharged from his third part of the not® now in suit. This arrangement was carried into effect; and Mr. Clark was discharged, with the consent of McCulloch, by a writing on the back of the note due to the plaintiff, in the following words ; — “ .April 2, 1S21. Received of Jonas Clark one third of the amount of the within note and interest, and he is hereby discharged from the same.”</p> <p>In the month of October 1822, Henry Clark also compromised with his creditors, who executed, on the 24th day of the same month, a deed of covenant of the following tenor : — “We, the undersigned, creditors of Henry Clark of Kennebunkport, do hereby agree that we will discharge him from our respective demands, on receiving our proportion of his property ; and that in order that said Clark’s effects may be disposed of to the best advantage, and his debts collected, and his business brought to a close, we further agree that said Clark shall have the undisturbed possession and control of his said effects and debts for one year; during which time he shall use his best endeavors to close his concerns, and make a dividend of his property among his creditors. And we hereby bind ourselves and our heirs by these presents not to make any demand on him by process of law, or otherwise, for said term of one year from the date of this instrument ; and that in case of any disagreement of opinion relative to the mode of settlement and distribution, we agree to submit such points of disagreement to the arbitration of three disinterested persons, to be mutually chosen by the parties. In witness,” &c. This instrument was executed by Daniel W. Lord, and nineteen others, among whom was the defendant. The effects of Mr. Clark were distributed under this agreement ; and the sum received in payment of his part of the note now in suit, was indorsed thereon in these words : — “ January 21, 1825. Received of H, Clark seventeen hundred and eighty-nine dollars and sixty nine cents, being 56 per cent, of one third of the w'ithin note and inte-' vest up to this date.”</p> <p>It appeared from the testimony of Henry Clark,who was offered as a witness by the plaintiff, that at the time he paid the 56 percent, the defendant agreed or assented to it, and promised to pay the residue of the note. He further testified that he paid one of bis creditors 90per cent, and 75 per cent, to another, by the direction of arbitrators appointed under the agreement.</p> <p>Upon these facts a verdict was entered by consent, for the plaintiff, for the whole balance due upon the note, with interest ; subject to the opinion of the court upon the questions whether the defendant was liable to pay any, and what part of the note ; and whether Henry Clark was admissible as a witness.</p> <p>The arguments were in writing, to the following effect.</p> <p>resisted the plain, tiff’s claim for any part of the note; contending that the discharge of Jonas Clurk was a dissolution of the whole contract, because its character was thereby entirely changed. The defendant’s original engagement was with the two Clarks, jointly. By this act of the plaintiffs, he is holder) with one alone. But it is not in the power of a creditor thus to increase the liability of his debt - or ; nor to vary it from the original contract. 2 Polhier on Obi. 68. 2 Saund. 48. And this discharge is technically valid and sufficient, it being on the back of the instrument itself. Had it included all the makers of the note, in the same language, it could never have been enforced against any of them ; and if it cannot he recovered against. Air. Clark, he is, to all intents, released from the contract. Nor can the consent of the defendant revive the note against him ; for this would violate the rule that a written contract shall not be enlarged, restrained, or varied by parol; 2 ¡Stark. Ev. 279. 1 Phil. Ev. 422; — nor by matter subsequent. 2 Stark. Ev. 12.9. Moreover, the defendant could not, by his consent, hind Henry Clark. However willing he might be to assume additional responsibilities himself; yet it does not appear that Henry Clark was consulted at all in the discharge of Jonas. And surely the defendant had no power to change the legal relations of the joint promissors, ■without the consent of all concerned.</p> <p>2 But if the contract is changed, it is from joint to several : in which case the defendant is responsible for his third part only. The joint obligation ceasing as to one, ceases as to all. Each, in that ease, is liable only for his own proportion, without the right ef contribution from the others. The defendant’s release of Henry Clark could therefore have no effect upon this note, nor upon the defendant’s liabilities under it ; for in respect of the note he was not a creditor. And such was the construction which Mrs. Lord, the plaintiff in interest, gave to the contract, by the terms of her indorsement, in which she speaks of Mr. Clark’s third part of the debt ; clearly implying that each was boldeu only for his proportion. The testimony of II. Clark goes only to shew that the defendant admitted himself bound to this extent, and no farther.</p> <p>The obligation to which Mrs. Lord, by her agent, was a party, was a covenant to discharge II. Clark, on a distribution of his effects ; and these having been distributed, the contract is executed, and he is discharged of his third part of the note. This also is evidence, under seal, both of her construction of the contract, and ofits fulfilment. Upon any principle, she ought not to claim of the defendant any thing beyond a third part of the debt , since, by releasing the other parties, she has deprived him of any claim on either of them for contribution. His consent to the dis - charge of Jonas Clark was founded wholly on the understanding that the joint character of the contract no longer existed.</p> <p>If from these, or any other causes, the defendant was discharg - ed, his promise to pay the note, if taken most strongly against him, is not binding ; for being a promise to pay the debt of anotli er, it is void by the statute of frauds ; and it is also without con sideration.</p> <p>3. But Henry Cark was not admissible as a witness. Though the note is assigned to Mrs. Lord without recourse to the indor-sers ; yet as Mr. Clark is one of the administrators, he stands precisely on the same ground with Walker, the nominal plaintiff, who, it is clear, could not be admitted to testify. But he also has a direct interest to charge the defendant with the whole balance of the note ; and if called upon for contribution, would set up the judgment, obtained upon his own testimony, to prove that the defendant had assumed the debt, and exonerated him, He was further incompetent because his testimony, going te> absolve himself from the obligation, by throwing it upon the defendant, would tend to increase the fund out of which his own debts are to be paid ; and to raise a surplus for himself. It is on this principle that a bankrupt is excluded. 1 Phil. Ev. 50.</p> <p>contended — 1st, that the instrument signed in behalf of Mrs. Lord, to exonerate Henry Clark, was a covenant not to sue, for the limited time of one year; and that therefore it did not operate as a release. To have that operation, it should shew an intent of the parties that the right to sue should at once and forever cease, without any other act done. Tuckennan & at. v. Nevshall 17 Mass. 585. Gibson v. Gibson fy al. 15 Mass. 112. Wigglesworth v. White l St,ark. 173. 6 Com. Dig. 183. Release JJ. 1. 2 Saund. 48, note,„ But here the obligation is, that the creditors will discharge him on receiving their proportion of his property ; distinctly indicating a future act of release to be executed. And in the interim they covenant to suspend all legal remedies for a year.</p> <p>2. Being a covenant not to sue, and not a release, it does not bar this action. Shedv. Pierce 17 Mass. 628. Chandler v. Herrick 19 Johns. 129. Rowley v. Stoddard 7 Johns. 207. 13 Johns, S7. Even if made to the defendant himself, it would not have been pleadable in bar ; much less can he avail himself of it, he not being either party or privy to the covenants, and the instrument not being strictly and technically a release.</p> <p>3. The payment by Jonas Clark, and his discharge, does not exonerate the other parties to the note. Ruggles v. Patten 8 Mass. 480. It amounts to no more than an acknowledgment that he had paid one third part of the note, and an agreement thereupon not to sue him for any more ; and to this the defendant expressly assented. This was no discharge of the others; at all events not of the defendant.</p> <p>4. The promise made by the defendant to pay the remainder of the note, is alone sufficient to maintain this action. Being made after the discharge of Jonas Clark, and after the covenant with Henry Clark, and the payment made by him, and with a perfect knowledge of the whole transaction; it shews that there was no payment beyond the sums indorsed. A technical discharge, under seal, cannot be setup asa bar against a subsequent promise ; unless by way of estopping, the plaintiff from denying that there has been a payment. Perkins & al. v. Pitts 11 Mass, 135. Wilkinson v. Scott 17 Mass. 249. Golightly v. Jellicoe 4 I). & E. 147 note. But here can be no estoppel, both because the defendant was not a party to the contract, and because the promise was subsequent to the deed, and in consideration of a debt still subsisting.</p> <p>As to the admission of Henry Clark as a witness, they argued that his interest, if he had any, was on the side of the defendant; since if the plaintiff recovered more than a third, he would be liable to contribution for the surplus ; but if the defendant should recover, he would be safe from any claim by the plaintiff, under the protection of his covenants.</p>

This case, which was a writ of entry, turned upon the construction of the tenant’s deed, describing the line dividing his land from that of the demandants.

This case, which was a writ of entry, came before the court upo'i; a case slated by the parties. It vr. . Mr. Seaver was appointed collector of the tax of 1813 ; and was duly commissioned and sworn. Under this commission, and without any new qualification, he acted as collector of the taxes of 1815 and 1816.

In a writ of error to reverse a judgment of the Court of Common Pleas, the case was thus. Daniel ¡Vise, the plaintiff iu error, brought an action of assump-sit against Ililton for the price of a sleigh, sold and delivered. The writ contains the common money counts, and an insimul com putassent.

<p>Ax indictment was found at the last Jlpril term in this county, against this defendant, for the alleged forgery of a deed. At. the last September term, being brought in to plead to the indictment, he filed a motion in writing uuder oath, in these words : — “ And now the said John Low comes into court, and alleges that he ought not to be boldest to answer to this indictment, because he says that the said indictment was not found by any twelve of the grand jury ; but simply by a majority of the number who constituted the grand jury panel, at the court at which said bill purports to be found. And he now moves the court for liberty to prove these facts by the testimony of James Gray, foreman of the grand jury who returned said bill into court ; and by Col. Thomas W. Shannon, Joseph Frost, Esq. John S. Foss and Miles Ford, who were grand jurors on the panel aforesaid, and who are now here present in court ; and that said bill was so returned under a mistaken idea that it was only necessary that a majority of the panel should agree to a bill of indictment.” The affidavits of the grand jurors named in the motion being taken de bene esse, they all testified that their impression was, that it was sufficient if a majority of 'the grand jury concurred in the finding of a bill, though the number composing the majority was less than twelve. The foreman and two others stated that in the present case the number of grand jurors so concurring was less than twelve. One of the others testified that such was his impression, but that he did not feel certain of the fact ; and the other said that he did not know whether there were or were not twelve who concurred in finding the bill. The motion was then ordered to stand over for argument at this term.</p> <p>founded his argument on the constitution of Maine, Jlrl. 1 sec. 7, which provides that the usual number and the unanimity of jurors, in indictments as well as convictions, shall be held indispensable. The constitution having secured this right to the consent of twelve men in the finding of every indictment, it must be understood as securing also, to the party interested, the means of proving the fact ; and this can be known only by the evidence of the grand jurors themselves, since no other person is presumed to be present at their deliberations.</p> <p>If the court are judicially informed, in any mode, of the want of such concurrence, it is their duty to quash the indictment. 2 Hawk. P. C. 307. Commonwealth v. Smith 9 Mass. 107. United Stales v. Coolidge 2 Gal. 367.</p> <p>Aud the motion violates no principle of Jaw. Certainly not the oath of the grand juror ; which relates only to the opinions, remarks and counsel boih of the attorney general, his fellows and himself, upon any particular case before them ; hut not to extrinsic facts. Thus, if' a witness swears before the traverse jury, contrary to what he swore before the grand jury, this fact may be proved by the testimony of a grand juror. I Chilly's Crim. law 200 2 Bl. Com. 126, note 5. So iu case fora malicious prosecution. 3 Solw. JV. P. 945. Thompson v. Mussey 3 Greml. 305. Grand jurors are members of the court, and their testimony is within its legal control, it is enough for the citizen to suggest to the court his grief, resulting from the misprision or improper conduct of its officers ; and the court will inquire into it. 13 Co. 93. 3 List. 33. Nor does it contradict the record ; for it is not stated on record that twelve jurors "did concur. And the rule that the record is not to be cout radiated, relates only to formal pleas ; not to a motion or suggestion like ihe present ; which may be made at any time before verdict, and is the proper mode of bringing the fact to the knowledge of the court. 4 Com. Dig. 331. Indictment Jl. 9 Mass. 109, 110., 2 Pick. 5G3. If the constitution, in giving the right, is not to he understood as having also secured ample and sufficient means for its. assertion ; the boasted constitutional privilege sinks into * mere mockery of the citizen with the semblance of protection ; aud the barriers raised by that charter, to preserve his liberty and insure his safety, will be found to be but the shadow's of de-fence.</p> <p>The Attorney General objected to the call of any grand juror, to disclose the views or opinions of the grand inquest, directly or indirectly, for any of the purposes proposed.</p> <p>1. Because it is against public policy. It has a direct tendency to bring their opinions and deliberations into public discussion. It exposes them to the malice or the favor of the 'accused;, to the influence of fear, favor, affection and hope of reward; and places them in a situation destructive to the independence of that important tribunal. Nor is it necessary that this inquiry should be opened. To an innocent man, it is of no utility, since he can always vindicate himself, in a trial upon the merits.</p> <p>2. It is against immemorial usage, and against law. No case-can be found in which such testimony has been resorted to ; and the total silence of the books on a point which, if grand jurors could be called at the pleasure of the defendant, might have been made, many times, and for centuries, is proof that no such usage or practice ever existed. It violates law, in that it renders public that which is by law a sacred deposit in the breast of the grand juror. With so much jealousy was this principle guarded by the law, that if one of the grand jury disclosed the evidence, he became an accessory, in felony, and a principal in treason. 4 Bl.-Com. 126. 2 Hawk. P. C. ch. 46, sec. 93. 1 • Chitty's Grim, law 496.</p> <p>It is not the best evidence of the fact sought after. The record is the only testimony to be resorted to ; and it is not to be contradicted by parol. It states that the grand jurors, on their oath, present such an offence ; which plainly imports that at least twelve concurred in finding the bill, and is conclusive evidence of the fact. It cannot be avoided or contradicted by plea. Commonwealth v. Smiths Mass. 110. Even traverse jurors can be received only to explain and support their verdict ; never to contradict it. Grinnellv. Phillips 1 Mass. 543. No juror, grand or traverse, can be heard, in proof of his own misconduct, or that of his fellows ; not even to say that he assented to the verdict merely because a majority were of that opinion, believing he was bound by law so to do. Commonwealthv. Drew 4 Mass. 399. Jackson v. Williamson 2 D. & E. 281. Davis v. Tucker 4 Johns. 487. Haskell v. Becket 3 Greenl. 92. Taylor v. Greely ib. 204.</p> <p>If the facts stated in the motion were thrown into the form of a plea, it must be either in bar or abatement ; to which the regular answer would be that the indictment was returned by a full panel, prout patetper recordmn. And this must be tried solely by inspection of the record itself. 1 Inst. 117,260. 6 Co. 53. 3 Bl. Com. 331. There could be no issue of nultiel record, it being a criminal case. Hale's P. C. 241, 243, 255. Starkie's Crim. Plead. i’C9. And any other mode of trying it would vitiate the plea. 9 Co. 25. fíinney v. Merchant 6 Mass. 192. As the motion seeks another mode of trial, it is bad.</p> <p>The cases cited oa the other sido support, rather than impugn, those positions. In Sykes v. Dunbar 3 Selw. 1064, Ld. Kenyon said that after the criminal trial, the right to withhold the testimony of the grand juror ¡night be waived by the crown, in order to prove perjury in the witness. But it is admitted in no other case. In United States v. Coolidge no grand juror was examined ; hut a witness was called who had been before them. I;i Thompson v. JUussey ihe witness was the county attorney; and he was called to prove aa independent fact ; not to contradict a record.</p> <p>Daréis, iu reply, said that the object of the motion was not to contradict a record ; but to ascertain whether the paper purporting to be a record was entitled to that character. The objection is, that it is not what it purports to be; and the argument on the other side assumes the very point in dispute, being founded on the supposition that the paper is a record.</p> <p>The English practice is to express iu the caption of the indictment that it was found by twelve grand jurors. Thus the finding by twelve becomes matter of record, and therefore cannot be contradicted. But in our courts the practice is otherwise ; the caption only saying “the jurors of the Slate aforesaid,” without stating any number. The presumption is, that it was the legal number ; but this presumpliou, like any other, may be rebutted by contrary proof.</p> <p>After this argument the Mlorney General moved for leave to take the affidavits of others of the same grand jury, tie bene esse, to the same point ; which was granted.</p> <p>The counsel for the defendant then moved for leave to ask each grand juror whether any person, other than the grand jurors, was present when they deliberated on finding the indictment. But the court refused to put the interrogatory, because this point was not a subject of the original motion ; and they would not receive a motion now for that purpose, until the other was disposed of.</p> <p>The judges afterwards delivered their opinions, as follows.</p>

This was an action of assumpsit, upon a written memorandum of a contract made between the parties, August 8,1819, by which the defendant agreed to convey to the plaintiff a certain parcel of real estate in Portland ; stating that he had received twenty four'dollars in part payment; and was to receive twenty six more, in thirty days, twenty more in one year, and eighty dollars more in three subsequent annual instalments ; and that the plaintiff was to give the defendant good…

upon a report of referees. The original action was assumpsit, brought by the town of North-Yarmouth, to recover the sum of 1975 dollars, awarded by commissioners appointed by the special statute of 1821, eh. 78, sec. 9, dividing that town, and incorporating the town of Cumberland.

<p>Where one who owned three adjoining parcels of land, each of which was particularly described m the deed by which he held them, made a deed of conveyance commencing in the language of the former deed, as a conveyance of three parcels, but describing only the first parcel, and referring to the deed from his grantor to himself ; — it was held that all the three parcels passed by this deed.</p>

<p>IN an action of assumpsit, for supplies furnished to a pauper, it appeared that the notice was delivered to Joseph fVhitney, Esq. of Calais, and had never been answered. The plaintiffs proved by the town records of Calais, that Abner Sawyer, Ebenezer Red-ing and Joseph fVhitney were chosen overseers of the poor of that town for the same year ; and relied on their neglect to answer the notice, as estopping Calais to contest the question of settlement.</p> <p>The defendants read the depositions of the men thus chosen, who all testified that at the time of their election they declined the office, in open town meeting ; and had never served in the office since, nor been sworn. Whitney added that he had once subsequently concluded to serve, if the others would ; but that they could not be induced to consent. He also testified that he had in divers instances refused to act in the office when applied to ; that it was a matter of notoriety in Calais that year, that the persons chosen overseers refused to serve as such; but that when the notice from Gorham was delivered to him, he did not inform the person who brought it that he was not an overseer ; nor did he communicate the notice to the selectmen of Calais for that year ; who, it appeared, were duly chosen and qualified.</p> <p>The defendants'relied on this evidence, to'the admission of which the plaintiffs objected, as shewing that the office of overseers of the poor in Calais was vacant, and that the duties of that office were devolved by law upon the selectmen ; and therefore that the notice was not delivered to the proper officers. But the Chief Justice, before whom the cause was tried, overruled this point, and directed a verdict for the plaintiffs, reserving the question for the consideration of the court.</p> <p>contended that the office was vacant, the persons elected having refused it, upon the spot; and never having afterwards acted, or been sworn ; as was the custom of that place, though not required by law. ’ Mussey v. White 3 Greenl. 290. Morrell v. Sylvester 1 Greenl. 248. And the evidence was admissible, being of matter enpais, not contradictory to the record. The fact was notorious in Calais ; and the plaintiffs might have known it, by common diligence of inquiry.</p> <p>resisted the admission of the evidence, as being against the record. But he contended further that it ivas sufficient for Gorham to deliver the notice to such persons as Calais held out, upon their records, as overseers of the poor If they would not have such papers delivered to these men, they should have entered on record their refusal to accept the office,</p>

<p>is this case, which was assumpsit by the payee against the ma - ker of promissory notes, the writ was issued Oct. 21, 1825, between the hours of four and five in the afternoon ; and contained one count upon a note dated Jlpril 18, 1825, for $156,25, payable in six months from the date with grace ; and another upon another note, dated June 20, 1825, for $93,76, payable in four months from the date with grace. The service of the writ was commenced on the following day, by attaching the defendant’s goods. i</p> <p>On or about Oct. 26, the plaintiffs caused the second count to be stricken out of this writ ; and on the 9th of November a new writ was made upon the last mentioned note, and the same property again attached. The service of both writs was completed Nov. 15, by leaving the summonses al the defendant’s place of abode ; and the second suit proceeded to judgment.</p> <p>Upon these facts the cause was submitted to the court, to determine whether the action was prematurely brought ; and whether the alteration made in the writ, by erasing the second count, was such as to render it void.</p> <p>contended that the note was due on the lar,l day of grace, and that an action might well be commenced upon it at any hour of that day. Castle v. Burditt, & al. 3 D. & E. 623. Jones v. Fales 4 Mass. 251. But if the day of the date ivas to be excluded from the computation, and so the note not matured till the expiration of the last day of grace, yet this day, in mercantile acceptation, ended at the closing of the banks at four in the afternoon ; after which an action would lie.</p> <p>insisted that the action was premature ; upon the ground that the day of the date of the note was to be excluded from the computation ; in which case the prom» issor had the whole of the last day of grace, in which to make payment ; the law not regarding fractions of a day. Henry v„ Jones 8 Mass. 453.</p> <p>But however this may be, he^said thab the plaintiffs had destroyed their own writ, by altering it in a vital part, without leave of the court, and after the defendant had a vested interest in the action, by the attachment of his “property. To permit such an act, especially when done, as this was, without the concurrence of the counsel, would go far to destroy all confidence in the sacredness of legal proceedings.</p>

<p>1 this case, which was a writof entry, the tenant obtained a verdict by means of a deposition in perpetúan, before two magistrates, styled, in the caption, “justices of the peace quorum wins.” The demandant objected to the admission of the deposition, because only one of the magistrates was a justice of the quorum, the other holding simply a commission of the peace; bul the Chief Justice overruled the objection, and saved the point for the decision of the court; together with some others Which were taken at. the trial, but not afterwards insisted oil</p>

<p>Where one devised lands to his son, and his daughter, and two grandsons, (surviving children of a deceased daughter) to be divided between them into three parts, one third to the son, one third to the daughter, and the other third to the two grandsons ; and devised other portions to other children in fait of their share of his estate ; and charged the devisees of the first three parts with the payment of his debts, in eijual thirds ; and one of the grandsons died in the lifetime of the testator, unmarried ; — it was held that the devise to him did not lapse, but survived to his brother.</p>

<p>It appeared in the disclosure of George Willis, who was summoned as the trustee of the defendant in this case, that on the 15th of May 1826, Gorham, the defendant, gave to Millions & Lmdit Ms promissory note for $608 02.payable in six month' Ill July following, Millions & Leavitt being alarmed for the safety of several debts due to them, and of this among the others, procured Willis, for an agreed premium, to guaranty their punctual payment. This was done by a separate writing, and it was agreed that the transaction should be kept secret, lest it should injure the credit of the several debtors. The premium, given for the guaranty of this debt was about twenty-five dollars. In about a month afterwards Gorham failed ; and was at that time induced by Millions & Leavitt, at the suggestion of Willis, to place in the hands of the .latter the schooner SeaJUmcr, and her fare of fish, to secure the payment of this debt. But it did not appear that he knew any thing of the guaranty till some days after the transfer ; nor was ary notice taken of the debt in the transfer of the property, which was made by an absolute conveyance to Willis, whe, at the same time, accepted a draft, payable to Gorham's own order, for the amount of the proceeds, after paying any demands he might ’¡ave against Gorham, fie stated* however, that at this time ha had no such demand. The note was then in ene, of Os© banks, where it had been discounted, on the indorsement of the payees alone. Soon after this transaction Willis informed the president of the bank that he should see the note paid at its maturity; tuid h© accordingly paid it, some time after ho was nrs trapico, in this action. The value of ike property ttreatsihnred to biro did not exceed ilia amount of the iíOÍO.</p> <p>insisted upon his right to retain the property. The transaction was Iona fide, and the property was placed in Ms hands expressly for the payment of that debt. Upon the faith of the assignment, the trustee promised to pay the debt io the bank, and afterwards actually paid it. The object of the debtor was to provide funds for its payment ; and it was of no consequence to him in whose hands it was placed, or who was liable as guarantor or indorser. His object, which was a ¡awful one, is effected by applying the funds to that specific purpose j and they ought not now to be withdrawn from the possession of m. innocent party, to be applied at his expense to any other. Owen v. Estes 5 Mass. 330. Cushing v. Gore 15 Mass. 69. Stevens v. Bell 6 Mass. 339. 16 Mass. 275. 1 Pick. 462. 16 .Mass-476. Van Staphorstv. Pierce 4 Mass. 258.</p> <p>denied the right of the trustee to retain the property, on the ground that Siis guaranty of the debt created no contract between him and Gorham ; and that he stood merely in the situation of a creditor, happening to have specific articles belonging to the debtor in his hands. Alien v. Megguire & trustee 15 Mass. 490.</p>

IN this case, which was a bill inequity brought to redeem certain mortgaged real estate, the facts sufficiently appear in the opinion of the court, w hich was delivered by

This was assumpsit, to recover the price of a quantity of pota toes, which the defendants refused to receive in Philadelphia, at the plaintiffs alleged they were bound to do.

In this action, which was assumpsit, the defendant filed, by way of ofiVet, an account in which the plaintiff was charged with a certain quantity of hay, as having been, sold and delivered to him by Daniel Luni, the testator. The plaintiff admitted the delivery of the hay, but alleged that he received it of George W. .Luni, the defendant, as the agent, and by the authority of his father the testator, in part payment for a piece of land which he bought of the plaintiff.

This was an action of trespass quare clausum fregit, against the defendant, for cutting down a fence erected by the plaintiffs on what they alledged to be their close in Brunswick. The defendant pleaded the general issue, and several special pleas in justi-íication; alledging in one of them, that the fence was on two pub - lic highways, viz. the twelve-rod-road, and the Jíarjmwclbnrdá leading from it; and in another, only saying that it was on the twelve-rod-road.

This was an action of debt, brought by the Treasurer of State, upon the bond given by the defendants as managers of the Suitivffin-hridge lottery, pursuant to the private statute of 1820 eh. 431). The facts appeal hi the opinion of the court, which was delivered at the succeeding term in this month, in Kennebec, by

Tins was an action of assumpsit for the price of sundry goods sold and delivered hy the plaintiffs to one Jonathan 8. Farrington upon the credit of the defendant; and it came before the court apon the following case stated by the parties.

In a writ of error, brought to reverse the judgment of a justice of the peace, in a military prosecution, the case was thus. wa~ The plaintiff, ivho was c1~rk of a company of militia2 havhig hlOUgi]t an action of debt, U~Ofl the statute, to recover nf the defendant a fine for lien-appearance at several company traimugs, the dIfeudant produced ic bar of the action, a certificate from the `rverseer~ and clerk of the society of F~icnd~ or ~1u~kers, Windham, of the following…

The question in this case was upon the liability of Mr. Adams, an attorney and counsellor of this court, as the trustee of Jacob Staples, the defendant. He had prosecuted a suit, and obtained execution, in favor oí Jacob, against Jeremiah Staples, the present plaintiff; who paid the amount to Mr. Adams, as the creditor’s attorney, and in about ten minutes afterwards caused him to be summoned in this suit as the trustee of Jacob.

The petitioner in this case complained, that in a process of partition pursued according to the statute, in which the present respondents were petitioners, the commissioners appointed to divide the land, had committed material errors, which he specified, and which were not discovered till after the final judgment ; and therefore he prayed this court that the cause fnight be reviewed. opposed the petition in limine on the ground that the power given by the statute to grant…

Sarah Dennison, was indicted for an assault and battery in the Court of Common Pleas; and being thereof convicted, she claimed an appeal to this court, and was ordered to recognize, with sureties, in the sum of four hundred dollars, to prosecute her appeal here with effect.

By the disclosure of Warren, one of the trustees in this case, it appeared that he and his partner purchased a bale of Sheetings on credit, of Seaver, who was the factor of the Brunswick Cotton Factory, and who guaranteed his sales; but Warren did not know that he acted as factor in the sale, or that he was the factor of the company; they dealt with him, supposing him to be the owner of the goods. The price had never been paid.