Volume 40 — Massachusetts Reports

This was a writ of entry, wherein the demandant Bradley, in an amended declaration, demanded against W. W. Fuller, J. Morse and A. W. Fuller, one quarter of the Bradley farm, to wit, one undivided half of ten parcels of land particularly described, whereof he was seised in his demesne as of fee and in mortgage, and whereof the tenants disseised him.

<p>A proceeding in the court of probate, seeking the. proof and allowance of a will, is a “ suit at law,” within the meaning of St. 1792, c. 32, which enacts that(t in all suits at law ” wherein any parish &c. is a party, or interested in the event of the suit, any inhabitant of sucli parish &c. shall be admitted as a competent witness, provided he has no other interest therein than as an inhabitant of such parish &c. and is not otherwise legally disqualified.</p> <p>The purpose of the St. 1783, c. 24, in requiring a will of lands to be attested by three “ credible ” (or competent) witnesses, was not to determine who should be competent, but to require those as attesting witnesses, who should be competent according to the laws in force for the time being.</p> <p>Thus, a subscribing witness to a will made subsequently to the enactment of St. 1792, c. 32, wherein a legacy was bequeathed to a parish of which he was a member, but in which legacy he had no other interest than as a member of the parish, was held to be, by force of that statute, a “ credible ” witness, within the St. 1783, c. 24.</p>

<p>A rail road corporation was authorized to construct its rail road across a highway, and in the progress of the work it became necessary from time to time to remove certain barriers, which were placed by the corporation across the highway for the protection of travellers, but were adopted by the town in which the highway was situated, and in consequence of the neglect of the workmen to replace the barriers, at night, a traveller, in 1832, sustained an injury, and, subsequently, under St. 1786, c. 81, recovered double damages against the town. It was held, that the rail road corporation was hound to cause the barriers to be replaced at night, although its charter contained no express provision on this point; as otherwise an accident might have happened before the town had notice, actual or constructive, and no one would have been liable for the damages.</p> <p>Held also, that the corporation was responsible for the negligence of such woikmen. although they were employed by an individual, who had contracted to construct this portion of the rail road, for a stipulated sum, the work being done by the direction of the corporation.</p> <p>Held also, that an action might be sustained against the corporation by the town for indemnity, the parties not being in pari delicto ; but, that the town was only entitled to recover the single damages, as, beyond that extent, it had suffered from its own constructive negligence ; and that the corporation was not liable for the costs and expenses of the action brought against the town by such traveller, it not appearing, that such action was defended at the request of the corporation, or for its benefit.</p>

<p>This was an action on the case by the plaintiffs as a corporation established by a special act passed on the 13th of February, 1816. St. 1815, c. 101. The declaration contains five counts, setting forth the cause of action in different forms, all substantially resting on averments that the defendants erected a dam over the Concord river at Billerica, or kept up and continued a dam at the same place, or enlarged, heightened or made tighter and closer, a dam previously erected at the same place; each count averring the erection, maintenance, or heightening and tightening of the dam to be unlawful; by which the meadows have been overflowed and valuable crops of grass injured and destroyed, and thereby an action has accrued to the plaintiffs ; and damages are claimed to the amount of the value of the crops belonging to all the individual proprietors composing the corporation. The defendants pleaded the general issue.</p> <p>At the trial, before Shaw C. J., the plaintiffs offered to prove, 1. that the defendants’ dam at Billerica was the cause of the injury done to the members of the plaintiff corporation, as described in the declaration, and also had increased the labor, difficulty and expense of removing obstructions in the river, which the plaintiffs were authorized to do by their act of incorporation.</p> <p>2. That the defendants, in 1796, built a dam just above the present dam and raised the same to the height to which it was then raised, for the purpose of feeding their canal; that in 1804, they completed their canal from the Merrimack river to Charlestown, using the waters of Concord river so raised by the dam, to feed the canal ; that they then opened the canal for public use, and took the toll thereon allowed by law, and have ever since kept the same open for public use and taken the toll thereon ; that in 1828, they built the present dam just below the former dam, leaving the former dam where it stood before ; that this new dam was built higher, tighter and broader than the old one, raising the waters of the river to a greater height at the dam and thereby in a much greater degree setting back the waters of the river and retaining the same longer upon the meadows, and increasing the difficulty and expense of cleaning the river and removing obstructions therein ; and that the new dam was erected in the manner described, for the sole purpose of turning a greater quantity of water into the canal.</p> <p>3. That the defendants had granted to others, since the building of their dam in 1796 and within ten years last past, the right to take water from the canal below the dam, for the purpose of driving one or more mills never belonging to the defendants, and for a sluice through which logs might be floated out of the canal into the pond of these mills, and had at other places opened sluices and waste ways in the canal, by which large quantities of the waters so taken from Concord river usually run out and are wasted, which waters so let out and wasted are taken into the canal from the river unnecessarily and are not needed for the lawful use and operation of the canal.</p> <p>The defendants moved the Court to reject all this evidence offered to prove damage by the flowing of the meadc >vs, on tiie ground, 1. that as by the act incorporating the Proprietors of the Middlesex Canal, and the acts in addition thereto, they were authorized to open and construct a canal, and to use the water of Concord river as a feeder therefor, and to purchase, build and hold mills in connexion with the canal, they were authorized to erect the dam in question, both for the purpose of feeding the canal, and for the purpose of driving certain mills owned by them immediately below the dam, and so the dam was not an unlmoful obstruction, within the meaning of the act authorizing the plaintiff corporation to sue ; —</p> <p>2. That the remedy, if they had any, against the defendants for raising the water to feed their canal, was the statute remedy given by the defendants’ act of incorporation and the acts supplementary thereto ; —</p> <p>3. That the remedy of the plaintiffs, if they had any, agaiást the defendants for raising the water to drive their mills, was upon the mill acts, so called ; — and that in either case this action would not lie.</p> <p>But the plaintiffs contended, that the defendants could not Justify as mill owners, because the leading and principal, if not the sole purpose of raising the dam, was to turn more water into the canal; nor under the canal act, because their power under that had been fully executed and exhausted, and they had no longer any authority under it to increase their head of water.</p> <p>Whereupon the Chief Justice proposed to instruct the jury, that if a new dam was erected for the purpose of feeding the canal, or of carrying the defendants’ mills, although it was erected as late as 1826 or 1828, still that it was a work which the defendants were authorized by law to erect, that it was not an unlawful obstruction, for which the plaintiffs could maintain "an action under their act of incorporation, and that the remedy of all persons sustaining damages by the dam, would be either under the canal acts, or under the mill acts.</p> <p>The plaintiffs thereupon became nonsuit, subject to the opinion of the Court upon this direction and other points of law. If the. Court should be of opinion that the plaintiffs were not confined to the statute remedy, under the canal acts or under the mill acts, but might maintain an action at law, and also that the plaintiffs, as a corporation, under their act of incorporation had a legal authority to maintain this action, then' the nonsuit was to be set aside and a new trial granted.</p> <p>The act of June 22d, 1793, (St. 1793, c. 21,) after reciting that certain persons have petitioned to be incorporated “for the purpose of cutting a canal from- the waters of Merrimack river into the waters of Medford river.,” enacts that certain persons named, their associates and successors, “ shall be a corporation forever under the name of The Proprietors of the Middlesex Canal,” and by that name may sue and be sued, and that they shall be “vested with all the powers and privileges which are by law incident to corporations of a similar nature”; and “whereas it may be necessary in the prosecution of the foregoing business, that the property of private persons may (as in the case of highways) be appropriated for the public use, in order that no person may be damaged by the digging and cutting canals through his land, by removing mills or milldams, diverting water-courses, or flowing his land, by the proprietors aforesaid, without receiving full and adequate compensation therefor,” it is enacted, “ that any person so damaged may apply to the Court of the General Sessions of the Peace to have a committee appointed to estimate the damage, and if aggrieved by the doings of the committee in estimating the damages, may apply to that court to determine the same by a jury, or by a second committee if the parties can agree thereon ; and that an execution may be issued against the property of the corporation or of any individual belonging thereto, for the sum adjudged in damages.” The act contains a proviso, “that no part of the waters of Shawshine river shall be diverted from tbeir natural course for the purpose aforesaid ; and that no dwellinghouse shall be removed or water-course turned or altered, whereon any mill is erected, so as to injure such mill, without license therefor” from the Court of General Sessions of the Peace ; and a further proviso, “ that the waters of the Merrimack river shall not be so diverted from their natural course as to impede, or any way interrupt the water carriage down the Merrimack river to the mouth thereof.” For the purpose of reimbursing the proprietors their expenses in building and supporting the dams, canals and locks, a toll is granted to them at certain rates per mile, to commence as soon as the the canal or any part of it shall be completed, and to continue forever ; provided that when forty years from the first opening of the canal are expired, the legislature from thenceforward may regulate the rate of toll. And it is further enacted, that if the proprietors shall refuse or neglect, for the space of ten years, to build and complete the canal, so as to be passable, the act shall be void.</p> <p>By an additional act of February 28th, 1795, (St. 1794, c. 67,) it is enacted that the proprietors of the canal shall be empowered to render the waters of Concord river beatable, as far as Sudbury cause-way, and as much further as the same can be usefully improved for that end, and to open any canal, at any place in the county of Middlesex, that may be necessary to connect the Concord river with the Middlesex canal, for that purpose, and also to extend the canal from Medford to the waters of the town of Boston, or Charles river, in such way as to the proprietors may seem most advantageous.</p> <p>By an additional act of June 25th, 1798, (St. 1798, c. 16,) the canal corporation are empowered to purchase and hold any mill-seats on the waters connected with the canal, and lands to accommodate the same, and thereon to erect mills.</p> <p>An additional act of January 25th, 1800, (St. 1799, c. 35,) after reciting the representation of the corporation, that from the reservation to the government of a right, after the ex piration of forty- years, to regulate the toll on the canal, great discouragements and embarrassments have resulted in the execution of that project, provides that a certain rate of toll be established to the corporation forever.</p> <p>The additional act of March 2d, 1803, (St. 1802, c. 98,) enacts that the corporation shall be allowed the term of three years from the 22d of June, 1803, to complete the canal to Charles river ; and the term of six years from the same day, to render Concord river boatable and navigable, and for cutting other canals in the county of Middlesex, pursuant to the acts previpusly passed on that subject.</p>

This was a petition for a writ of certiorari to a justice of the peace, setting forth, that, on the 8th of June,1837, a complaint was filed with such justice, by Jonathan Bancroft, the clerk of a company of militia in Tyngsborough, against the petitioner, for being deficient of a knapsack, at the inspection of the company, on the first Tuesday of May, 1837 ; that at the trial of such complaint, before the justice, Bancroft produced the rolls of the company, by which it…

<p>This was a petition for a certiorari, to a justice of the peace, setting forth, that a complaint was filed with such justice, against the petitioner, by Jonathan Bancroft, the clerk of a militia company in Tyngsborough, for neglecting to meet with the company on the first Tuesday of May, 1837 ; that at the trial of the complaint, before the justice, Bancroft produced the roll of the company for the year 1837, which contained the name of Daniel P. Coburn, but not the name of the petitioner ; that the order of the captain to notify Coburn was then produced, and it was proved, that it was originally directed by the captain to Joseph Fletcher, who was not a member of the company, nor in any manner liable to do duty therein, and that the name of Nathaniel Lawrence 2d was inserted in the order as the person to notify the men, by the clerk ; and that it also appeared by such order, that the soldiers were required to meet at twelve o’clock on the first Tuesday of May.</p> <p>The petitioner alleged, that these proceedings ought to be quashed for the following, among other reasons.</p> <p>1-. Because the petitioner was not enrolled in the company, in the year 1837.</p> <p>2. Because the order of the captain to notify the meeting of the company was directed to a person not a member thereof.</p> <p>3- Because the officers and soldiers were required, by such order, to meet at twelve o’clock, noon, on the first Tuesday in May, instead of one o’clock in the afternoon of that day.</p> <p>Mann and Wentworth, for the petitioner, to the point, that captain could not delegate to the clerk the power to substitute the name of Lawrence as the warning officer^ in the order, cited Commonwealth v. Kellogg, 9 Pick. 557.</p>

<p>Trespass quare clausum, and for taking and carrying away the plaintiffs’ school-house in Stoneham. The action was entered in the Common Pleas, at June term 1837.</p> <p>At the trial, before Morton J., on the 20th of December, 1837, the defendants read a paper filed in the Common Pleas on the second day of the return term, wherein the authority of the counsel for the plaintiffs to appear in the action, was denied. •This objection was made on the grounds, that the plaintiffs had never been legally organized as a corporation, and, that if they had, they had not authorized the suit. The counsel contended that their own statement of their authority was sufficient, but the judge required them to prove both of those facts.</p> <p>They then produced the town records, by which it appeared, that in 1826 the town was divided into four school districts, one of which was called the Northwest district. In April 1836, the town was divided into six districts, called the Northwest, Northeast, &c. districts, but this division was not by geographical lines ; (and consequently not legal, Wilhington v. Eveleth, 7 Pick. 106 ;) and in May following the town was divided into six new districts by geographical lines, the districts being called No. 1, No. 2, &c. The town voted also, at the same meeting, “to annul all votes passed respecting dividing the town for schools, prior to this date.”</p> <p>The school-house in question fell within the limits marked out as the district No. 1, in the new districting, and which nearly coincided in its limits with the Northwest district of 1836. Before this it was the property of the old Northwest district, formed in 1826.</p> <p>' The coun ,el then produced a book of records which they called the records of the district No. 1. The first record of a meeting was of “ the inhabitants of the N. W. school district,” on April 21st, 1836. At this meeting Reuben Richardson, junior, was chosen district committee ; and it was voted that future meetings should be warned by posting up a copy of the warrant at the meetinghouse. Subsequent meetings of the district No. 1, in 1836 and 1837, were warned and held, in pursuance of this vote and in virtue of warrants signed by R. Richardson, junior, as the committee of the district No. 1, (though in fact he had only been chosen the committee of the Northwest district formed in 1836,) and consequently were not legal meetings. At these meetings votes were passed to choose committees, and to give them instructions to demand of the proper persons the property of the district, and if necessary, to take legal measures for the recovery of the property.</p> <p>At a meeting of the district No. 1, on the 15th of December, 1837, being the first meeting that was legally called and warned, the district officers were duly elected ; and it was voted “ to prosecute the suit now pending in the Supreme Judicial Court, in favor of the district, against Benjamin E. Richardson, and to choose agents for that purpose.” Three agents were then chosen. And a vote was passed directing the mode in which future meetings should be warned.</p> <p>It was proved that the territory which composed the old Northwest district is the same which now makes the district No. 1, and a part of the district No. 6. The school-house stood on land hired of one Hay, by a parol lease, by the old Northwest district. There was evidence that this district, at the time of the new districting, owed a small sum for rent of the land, &c. ; that a small sum was due to them from one Wiley; and that the clerk had about twenty cents of their money in his hands.</p> <p>The defendant produced the records of the old Northwest district, from which it appears, that after the districting of May 1836, that district held a meeting, viz. in August 1836, at which it was voted “ to sell all of their district property.” A committee of two was chosen for that purpose and to settle all their unsettled business, and a committee of four, to make a distribution of their property.</p> <p>It was proved also, that in pursuance of these votes, the school-house was sold by auction, on the 13th of September, 1836, to one Hill, for $135 ; that Hill sold it to the district No. 6 for the same sum ; that the defendant, as one of a committee of the district No. 6, assisted in removing it; which is the supposed trespass for which this action is brought; and that the committee of the old Northwest district, so chosen to divide their property, had offered to divide the money received from the sale of the school-house, amongst all the inhabitants of that district, according as might be lawful.</p> <p>Reuben Richardson, junior, who was chosen, in April 1836, the prudential committee of the Northwest district formed in 1836, testified that he hired a schoolmistress subsequently to the last districting, and that the school was kept by her in the school-house on the day on which the auction took place.</p> <p>Upon these facts the defendant contended,</p> <p>1. That there was no such corporation as that in whose name the suit is brought; certainly not at the time when the action was commenced; and that the organization of the district in December 1837, did not cure the difficulty.</p> <p>2. That the plaintiffs were not a legal corporation at the time when the supposed trespass was committed ; and so they had no property in the school-house ; and no trespass could be committed against them when they had no legal existence.</p> <p>3. That the district No. 1, was never legally organized before December 15th, 1837, (if it was then,) which was five, days only before the trial.</p> <p>4. That the corporation, if it existed, did not authorize the suit.</p> <p>5. That as the school-house was, before the last districting, the property of the old Northwest district, it continued in them and never passed to the district No. 1, and that the old Northwest district had good right to sell it as they did.</p> <p>The judge reserved all the questions of law arising upon these facts, and put the case to the jury upon the question of damages. Many witnesses were examined on this question and a verdict was returned for the plaintiffs for the sum of $ 260. The defendant moved for a new trial, on the ground that the damages were excessive and against the weight of the evidence.</p>

<p>Assumpsit for money had and received, V recover back the amount of a tax for the year 1836, assessed by the defendants upon the plaintiff, and paid by him.</p> <p>The parties stated a case.</p> <p>The town of Lowell was incorporated as a city on the 1st of April, 1836. At a town meeting on the 31st of October, 1835, it was voted, “that the interests, the health, and the accommodation of the inhabitants of the town, require that a market-house should be builtthat the town would purchase of one Kittredge a certain lot of land for $ 14,055 ; that a committee should be authorized and empowered to procure a deed of the land from Kittredge to the town, for that price, and build thereon a market-house not exceeding 160 feet in length and 50 feet in width, nor less than 140 feet in length and 45 feet in width, to be two stories high, and be built in a plain style, with a general reference to that of the town-house in Lowell; that the committee might finish the building as they should judge suitable and proper ; and that they should be authorized to pledge the credit of the town for such amount of money as should be necessary to carry the foregoing votes into effect, not exceeding the amount of $ 30,000, payable at such times as they should judge necessary.</p> <p>The committee afterwards purchased the land and began to build the market-house, making various contracts for labor and materials, but not accomplishing any permanent loan.</p> <p>At a town meeting held on the 11th of April, 1836, by adjournment from the 7th of March, it was voted to grant $ 22,700 for incidental charges, the ensuing year, and that $ 10,000 of that sum be appropriated towards building the market-house.</p> <p>In pursuance of the foregoing votes the inhabitants of the city were assessed, the sum of $ 10,000 above mentioned being included in the assessment. The plaintiff was present at the meeting in April, and voted against the tax, and with several others caused it to be stated at the time, that the tax would be resisted, if that sum should be included in the assessment. The plaintiff having refused to pay his tax when called upon by the collector, payment was enforced by a distress.</p> <p>The town was previously provided with a commodious townhouse. The market-house has been built at an expense of $46,000. Before it was built, the town had hired certain rooms for the use of the Lowell Police Court, at the annual expense of $ 100 ; which court, since the completion of the market-house, has been removed into the upper part of this building. About two thirds of the upper part are used by the county as court rooms, &c. but at the time of passing the fore going votes no provision had been made by law for the establishment of any term of the county courts at Lowell. The statute transferring certain terms of the courts from Concord to Lowell, was passed on the 16th of April, 1836. The separate expense of the court rooms and appurtenances, has been $8998. The market-house was built 150 feet in length, and 45 in width, and in other respects it conformed to the vote of the town. On the completion of the building the stalls were let at rates prescribed by the city council, amounting to $1340 a year, and have ever since been generally occupied at the same rates. In April 1836, the population of Lowell was about 17,000. The number of ratable polls was 3993; on 2559 of whom was assessed a poll tax only.</p> <p>If the Court should be of opinion that the tax was valid, the plaintiff was to be nonsuit; otherwise the defendants were to be defaulted.</p>

<p>If a deed of land be recorded without having been acknowledged before a magistrate, the record is of no effect,</p> <p>A widow is not* entitled to dower in lands which her husband had conveyed before marriage, although the deed was not recorded at the time of the marriage.</p> <p>Thus, where the owner of land, before his marriage, by a deed never acknowledged and recorded, leased the same for the life of the lessee, and the lessee survived him, it was held, that the widow of such owner was not entitled to dower in the land, his seisin being defeated by the deed.</p>

<p>Where personal property was attached by a deputy sheriff, and at the request of the defendant, a third person receipted therefor and agreed to indemnify the officer against the consequences of intrusting the property to him, and the property was delivered by the receiptor to the defendant, it was held, that the receiptor was interested in the event of the suit, and was therefore incompetent as a witness for the defendant.</p> <p>The sheriff having, in sue!) case, released the receiptor, and discharged the attach ment, it was held, that the receiptor was not rendered competent thereby ; for the lien of the attachment having been discharged by the redelivery of the property to the defendant, the receiptor became personally responsible on his obligation to the deputy sheriff, which responsibility the release of the sheriff did not effect.</p>

<p>Trespass quare clausum fregit, or cutting and carrying away certain trees alleged to be the property of the plaintiff. The writ was dated November 13th, 1837. The defendant justified as the servant of Rachel Gragg.</p> <p>The trial was before Dewey J.</p> <p>It appeared, that the plaintiff derived his title to the locus in quo from his father, Daniel Shattuck senior, to whom it was conveyed by Samuel Gragg, on the 15th of November, 1799 ; that Daniel Shattuck senior died eight or ten years ago ; that at the time of the conveyance and long before, Rachel Gragg was the wife of Samuel; and that Samuel Gragg died in 1833, leaving Rachel his widow.</p> <p>The plaintiff proved, that the defendant, in November 1833, and in 1836, entered upon the locus, and cut and carried away certain trees. He also introduced evidence tending to prove, that several of the .trees cut were valuable as timber trees ; and that they were cut on one day and carried off on another day.</p> <p>The defendant proved, that on the 26th of January, 1835, a demand of dower was made upon the plaintiff by Rachel Gragg ; that a part of the locus was assigned to her by the plaintiff, on the 10th day of February, 1835, for her dower; that the defendant entered upon that part of the locus, and cut and carried away the trees, by her directions and for her use as firewood.</p> <p>It appeared, that the locus was a wood and pasture lot when Samuel Gragg owned it, and was used for a pasture ; that it was situated about one mile from the dwellinghouse and farm where Samuel Gragg lived, when he owned the land, and was separated from it by lands owned by other persons.</p> <p>The plaintiff also introduced evidence tending to prove, that there were other trees on the lot more suitable for firewood than those cut by the defendant, and that the trees so cut were beyond the limits of the land assigned to Rachel Gragg for her dower.</p> <p>The jury were instructed, for the purposes of this' trial, that, upon the evidence, the plaintiff could not maintain this action, unless they should be satisfied, that the entry or cutting was without the limits of that portion of the lot which was assigned by the plaintiff to Rachel Gragg, for her dower.</p> <p>The jury returned a verdict for the defendant; which was to be set aside, if the Court should be of opinion, that the instructions were erroneous.</p>

<p>A judgment was recovered by the Commonwealth against a bank, for the semi-annual tax payable in April 1838, but before the execution issued thereon was levied, a resolve was passed by the legislature, providing that the tax on such bank, due to the Commonwealth from the 29lh day of January, 1838, be remitted,” upon the payment, by the bank, of the costs incurred for the recovery thereof. It was held, that the whole of such semi-annual tax was not released by the resolve, but only such a part thereof as bore the same proportion to the whole, which the time between the 29th of January and the day when such tax was due, bore to the period of six months.</p>

Assumpsit for the rent of certain buildings in Lowell, received by the defendant. The writ was dated the 6th of September, 1836.

Assumpsit. The declaration contained counts on a promissory note made by the defendant’s testator, and on an alleged legacy in his will. The action was tried before Wilde J. The promissory note declared on, was in the following words: “ Hopkinton, Sept. 16, 1828.

<p>The lessor at will of real estate, cannot maintain an action against a third person for entering thereon, demanding rent of the lessee, and leasing the land to him, no actual damage being done thereby to the reversion.</p> <p>It seems, that since the enactment of Revised Stat. c. 60, § 26, requiring that three months’ notice shall he given in order to determine a lease at will, the lessor’s remedy for an injury to his reversionary interest by a stranger, during the existence of the lease, must be by an action on the" case, and not by an action of trespass quare clausum»</p>

<p>The treasurer of a corporation is not liable, in his individual capacity, to a stockholder, for refusing to pay him a dividend, although there were funds in the hands of the treasurer sufficient for the payment thereof, at the lime of such refusal.</p>

A wr.t of scire facias was issued from the Court of Common Pleas, against the defendant, setting forth, that the plaintiff, in October 1836, recovered judgment in the Supreme Judicial Court against Abraham P. Blake, for the sum of $ 200, debt, and for costs ; that an execution issued upon such judg ment was returned non inventus and in no part satisfied ; and that the defendant was bail for Blake upon the original process, for his abiding the judgment that should be given…

<p>An action at common law does not lie in favor of a creditor of a bank against a stockholder, to enforce the provision in Revised Stat. c. 36, §30, that if any loss or deficiency of the capital stock in any bank shall arise from the official mismanagement of the directors, the stockholders shall, in their individual capacities, be liable to pay the same $ but the remedy is by bill in equity.</p>

This was an appeal from a decree of the judge of probate, ordering certain real estate, in this Commonwealth, of which Samuel Livermore died seised, to be sold for the payijnent of his debts. The appellants were heirs, or claimants under heirs, of the deceased. The appellee was appointed administrator of the deceased on the 17th of November, 1835. The parties stated a case.

<p>This was assumpsit upon a contract in writing, dated May 4th, 1837, between the plaintiffs and the defendants, for the construction of the abutments of a bridge by the plaintiffs. The trial was before Dewey J.</p> <p>The introductory part of the contract was in the following words : “ Agreement between Horace Heard, Eli Sherman and Newell Heard, [the defendants,] committee of the town of Wayland, on the one part, and William Simonds and John Chaplin, [the plaintiffs,] on the other part; ” and after a specific description of the work to be done, the contract proceeded as follows : “ Said Simonds and Chaplin hereby warrant the above walls to stand firmly and in good order for one year from the completing of the same, and are to take as much of the old bridge as they need for platform for said walls and also all the wall near there. Said committee are to pay said Simonds and Chaplin the sum of three hundred and seventy-five dollars, when said work is completed, provided said Simonds and Chaplin give a sufficient bond with sureties for the warranty as expressed within.” The contract was signed by the defendants with their own names, simply, and by the plaintiffs.</p> <p>The defendants rested their defence on two grounds: 1. That they were not personally liable, and that the cause of action, if any existed, was against the town of Wayland ; and 2. That the plaintiffs had not performed the contract on their part, so as to entitle them to recover the money claimed, either of the defendants or of the town.</p> <p>Upon the first point, it was proved, by the defendants, that at a meeting of the inhabitants of the town on the 4th of April, 1836, the defendants were chosen a committee to rebuild the oridge; that at another meeting of the inhabitants on the 3d of April, 1837, it was voted to raise the sum of $400 for the purpose of rebuilding the bridge in question, and that the committee should have power to borrow on the credit of the town such sums of money as they might need; and that on the 1st of April, 1839, it was voted that the contract in question, was agreeable to the authority given to the committee by the vote appointing them such. The defendants also introduced in evidence a bond, by which the plaintiffs acknowledged themselves to be bound to the defendants, who were styled a committee of the town of Wayland, in the sum of $ 500, to be paid to them, their heirs and assigns, the condition of the bond being in conformity with the provisions of the contract which was the subject of the action.</p> <p>The defendants also introduced as a witness, Jotham Bullard, who testified, that at an auction of certain property of the vown on the 4th of April, 1838, Simonds purchased a yoke of oxen, and that upon being requested to procure a surety on his note for the price, he replied, that the town owed him a great deal more than such price, for work done on the bridge in question.</p> <p>Abel Gleason testified, that Simonds inquired of him, supposing him to be an overseer of the poor of the town, if, in case he bought a yoke of' oxen at such sale, the price might be turned towards the debt due for the bridge.</p> <p>It was admitted, that the town were required by law to re build the bridge at the time when it was rebuilt by the plain tiffs ; and no evidence was offered to show, ".hat the town was indebted to either of the plaintiffs unless it was for their services under the contract in question.</p> <p>The plaintiffs objected to the admission of all the testimony offered by the defendants on this point.</p> <p>For the purposes of the trial, and with the intention of re serving this question for the consideration of the whole Court, it was ruled, that the action might be maintained against the defendants, if the plaintiffs had performed the contract on their part; and the only question submitted to the jury was upon the second point. The jury returned a verdict for the plaintiffs</p> <p>If the Court should be of opinion, upon so much of the evidence as was legally admissible, that it would have been competent for the jury to find a verdict for the defendants, a new trial was to be ordered; otherwise, judgment was to be rendered on the verdict.</p>

<p>The appointment of an administrator relates back to the time of the death of the intestate, and vests the personal estate in the administrator from that time ; and an heir who may have such estate in his possession in the mean time, has no further power over, or interest in it, than is necessary to enable him to keep it safely and to deliver it up when called for by the administrator.</p> <p>Personal estate of an intestate came into the possession of a female heir, who, with, her husband, resided in the house of the intestate; and such heir afterwards delivered the same to another heir, for safe keeping, not having been prohibited from so doing by her husband; but no letters of administration were taken out on the estate. It was held, that no property in such personal estate had vested in the husband, and that he could not maintain trover therefor against the heir to whom his wife had delivered the same.</p>

Trespass for breaking and entering the plaintiffs’ close and meetinghouse in Rehoboth. The defendants severally pleaded the general issue; also, actio non, because there was not, on the day of the purchase of the writ, any such body corporate as The Inhabitants of the Second Precinct in Rehoboth.

<p>In 1836, a writ of right was brought by to recover certain land devised by Ephraim Hunt, by his will dated in 1774 and approved in 1776. The testator, after reciting that he had subscribed £45 towards the ministerial fund of £1000 mentioned in the preceding case, says, “ in lieu and instead of said forty-five pounds,” “ I give and devote” certain real estate described, “ towards the support and maintaining of the public worship of God, to be made use of forever hereafter and improved by the inhabitants of the second precinct of said town of Re hoboth, that do and shall hereafter attend the public worship of God in the church at Palmer’s river, so called, whereof the Rev. Robert Rogerson is now the pastor, and his successors likewise, the same moreover it is my will and pleasure that the said buildings and lands so given and devoted be annually leased out by said precinct committee that shall or may be chosen to let out said precinct money as by act of General Court enjoined, and that the yearly income and rents of said housing and lands shall from year to year forever hereafter be paid by said committee to the minister of the church at Palmer’s river aforesaid (he being of the presbyterian or congregational persuasion) towards his support, over and above the interest of the aforesaid sum of one thousand pounds.”</p> <p>The facts were in general the same as those above detailed. The plaintiffs took a formal possession of the demanded premises in 1834, and gave notice to quit. No congregational church existed in the parish from 1792 to 1830, excepting the one connected with the defendant corporation.</p>

<p>Where a mill-owner has in fact exercised the right of keeping up his dam and flow* ing the land of another person, for a period of twenty years, without payment of damages and without any claim or assertion by the land-owner, of the right to damages, it is evidence of a right to flow without payment of damages, and will be a bar to such a claim.</p> <p>Where a mill-owner has acquired a right to flow the land of another without payment of damages, the mere non-user of the mill for a period less than twenty years is not alone sufficient evidence of an abandonment of such right.</p>

<p>This was a bill in equity, setting forth, that the town of Raynham was incorporated in 1731 ; that in the act of incorporation it was provided, that the town should, within three years, settle a learned, orthodox minister ; that the town continued to act as a municipality and parish until 1833, when they declined to act any longer parochially; and that on the 19th of April, 1834, a parish was organized in such town agreeably to the statute, by the name of the First Congregational Society in Raynham.</p> <p>The bill further set forth, that in 1796, the town, acting parochially, ordered a sale to be made of certain unappropriated floor room in their meetinghouse, in order to raise a fund for the support of a congregational minister; that the proceeds of the sale were kept until March 1798, when an act was passed incorporating certain persons as tiustees of such fund, and providing, that the proceeds thereof should be applied to the support of a teacher of piety, religion and morality, who should preach in the meetinghouse near the centre o'" the town, but that no appropriation should be made until the proceeds amounted to the sum of $ 200, annually ; that at the time when the act was passed, the society possessed ?</p> <p>meetinghouse near the centre of the town, and there was then no other meetinghouse in the town ; that within four years last past the society had caused the old meetinghouse to be taken down, and a new one to be built on the same lot of land, which lot they had then occupied more than sixty years ; and that in 1827, a society was organized in the town by the name of the Second Congregational Society in Raynham, which soon after erected a meetinghouse about a quarter of a mile distant from the one mentioned in the act.</p> <p>The bill further set forth, that the board of trustees was organized and took possession of the fund ; that in 1816, the interest amounted to the sum of $200, and the trustees then applied the same to the support of Stephen Hull, a public teacher, then preaching in the meetinghouse, and so continued to apply the same so long as he remained such teacher ; that afterwards they applied the proceeds of the fund to the support of Enoch Sanford, his successor, who preached in the same meetinghouse, and who was one of the complainants in this suit; that in 1833, the members of the parish having organized themselves as the First Congregational Society, and Mr. Sanford being their teacher, the trustees applied the interest of the fund to his support; that the last appropriation for his benefit by the trustees was made on the 1st of October, 1834 ; that Mr. Sanford continued to be the teacher of piety, &c., preaching in the meetinghouse near the centre of the town, called and ordained by the society under a contract on their part to pay him the sum of $ 500 yearly; that on the 9th of March, 1835, the society voted him the sum of $250 and the interest of the fund, together with the use of the parsonage, as his salary for the year then ensuing; but that the trustees had wholly refused to pay over the interest of the fund to the society or to Mr. Sanford, though specially requested so to do.</p> <p>The defendants, in their answer, admitted that from 1816 to 1834, the proceeds of the fund had been annually applied to the support of the minister preaching in the old meetinghouse and in a new one built in its place, but they averred, that such appropriation was uniformly made by virtue of annual votes of the town; that the town had never voted, that the' interest of the fund should be appropriated except as is before mentioned, and that no vote had been' passed by the town on the subject since 1834 ; and they denied, that the town had ever declined to act in its parochial capacity, and averred, that in June 1836, the town filled a vacancy in the board of trustees.</p> <p>The respondents further averred, that they did not know and could not set forth as to their belief, whether any society had been duly organized in the town, as the First Congregational Society, or whether any such society now existed ; that about the year 1837, another meetinghouse w.as erected in the town as near the centre as the old or new one before mentioned ; that a teacher of piety &c. had officiated in it hitherto, and that the persons worshipping therein claimed that the proceeds of the fund should be appropriated to his support; and that they did not know, whether or not, any society haa been duly organized as the Second Congregational Society in the town.</p> <p>The respondents denied the jurisdiction of the Court, but submitted to the Court what disposition should be made of the fund, in case jurisdiction should be assumed by them.</p> <p>The complainants filed the general replication.</p> <p>The St. 1797, c. 80, by which the trustees of the fund were incorporated, provides, that whenever any vacancy happens among the trustees, the town shall, within three months, fill up the vacancy, and if the town neglects so to do, the trustees shall have power to fill up the vacancy ; and that the town “ shall have full power from time to time to call said trustees to an account for their conduct in managing said fund ; and the estate of each trustee shall be liable to be taken in execution on any judgment against such trustees recovered by the said town, which is hereby authorized to commence and prosecute an action against said trustees or any of them, for any embezzlement or neglect of refunding moneys in their hands; and the debt or damage recovered by the said town in any such judgment, shall be to and for the use aforesaid.”</p>

Assumpsit upon two promissory notes, dated February 8th, 1837, made by Abner Bassett, as principal, and the defendant, as surety.

Assumpsit for supplies furnished to five persons, whose settlement was alleged to be in Edgartown.

<p>The Revised Stat. c. 94, § 54, providing, that where “ any county, city, town, district or precinct, or any parish, or any incorporated or legally organized religious society, or any school district, or any incorporated mutual fire insurance company,** shall be, in its corporate capacity, a party toa suit, any member of such corporation may be admitted, on the trial, as a witness, applies to the members of corporations of the same nature created by the authority of other States.</p> <p>But, it stems, the Court will, before applying this rule to any particular foreign corporation, look into the character of the corporation, to see that it is of the class of corporations contemplated by the statute, not in name merely, but in substance.</p>

This was an appeal from a decree of the judge of probate for the county of Bristol, disallowing the account of the appellant as executor of the last will of William W. Kempton The will contains the following provision : “ My will is and I do hereby order and direct, that my said brother Thomas shall sell and dispose of all the land which I own jointly with him, situated, &c., and also a lot on the west side, &c., as he shall deem expedient; and from the proceeds of such sale…

<p>A promissory note, given for the payment of interest upon interest which had previously become due, is valid.</p> <p>A threat by a judgment creditor to levy his execution on the property of the debtor, will not render a promissory note given thereupon by the debtor, void, as being made under duress, such note being in other respects valid.</p>

<p>Assumpsit for expenses incurred by the plaintiffs in support of Susannah Hill, a pauper, whose settlement was alleged to be in North Bridgewater. This town, until 1821, was a part of Bridgewater, but in reference to this case the acts of Bridgewater may be regarded and spoken of as the acts of North Bridgewater.</p> <p>At the trial, before Morton J., it appeared, that the settlement of the pauper depended upon that of her grandfather, Ebenezer Hill, and that his original settlement was in Abmgton.</p> <p>The plaintiffs contended, that Ebenezer Hill acquired a settlement in North Bridgewater by removing into that town and residing there for a year without being warned to depart, previously to April 10th, 1767. In order to prove this fact, the plaintiffs offered in evidence an attested copy of an entry in the records of the Court of Sessions. This entry purported to be a copy of a warrant, dated July 10th, 1764, from the selectmen of North Bridgewater to the constables of that town, commanding them “ to warn Ebenezer Hill and Abigail, his wife, represented to us to be inhabitants of Abington,” &c. “ now dwelling in a house erected on George Packard’s land in North Bridgewater, with their five children, named ” &c. “immediately to depart the said town of North Bridgewater;” and a copy of the return of one of the constables of North Bridgewater, thereon, dated July 18th, 1764, setting forth merely, that in pursuance of such warrant he had warned Ebenezer Hill and his wife and children to depart from the town immediately.</p> <p>The defendants objected to the admission of this evidence, but the objection was overruled, and the evidence admitted.</p> <p>It appeared, that the house to which Ebenezer Hill removed when he left Abington, had long since been taken down, but that it was situated either adjoining to, or upon the dividing, line between North Bridgewater and the town of Randolph, then a part of Braintree. The plaintiffs contended, that the house was wholly within the limits of North Bridgewater. The defendants, for the purpose of showing that a habitable part of such house was within the limits of Randolph, offered in evidence the declarations of several aged persons living in the vicinity of the house while it stood, but. who had since deceased, which declarations were made while Ebenezer Hill resided there. This evidence was rejected.</p> <p>The jury were instructed, that unless the whole of the habitable part of the house in question was in North Bridgewater, E. Hill could not have gained a settlement in that town by his residence in such house.</p> <p>The jury returned a verdict for the plaintiffs.</p> <p>If the copy of the entry in the records of the Court of Sessions, was improperly admitted, or the evidence offered by the defendants, ought to have been received, a new trial was to be granted; otherwise the verdict was to stand.</p>

<p>Devise : “ Í give and bequeath to my nephew N. P. my dwellinghouse and lot, provided he will support my sister L. during her life. If he does not consent to sup port her, I give her the improvement of my upper chamber, and the rent of the rest of the house to be paid her her lifetime. And after her decease, I give my nephew S. B. the improvement of the lower tenement in my house and the privileges belonging to the same, during his life, after the death of my sister. I give my house and lot to N. P. excepting S. B’s improvement of the lower tenement.” It was held, that the first clause was a devise to N. P. of an estate in fee, upon the condition of his supporting L. during her life, and not of an estate for her life ; and that, consequently, upon his performing such condition, the devise to S. B. for hre, became inoperative.</p>

This was a writ of right, in which the demandants claimed title as heirs of their father, Peleg Gulliver, who died seised of the demanded premises, in September 1806. The trial was before Morton J. The tenant claimed under a deed dated in November 1807, from Salome Gulliver, who was the widow of Peleg, and administratrix of his estate.

<p>This was a bill in equity, filed by certain inhabitants of the town of Hanover, setting forth, that on the 23d of June, 1836, an act was passed by the congress of the United States, by which it was provided, that the money which should be in the treasury of the United States on the 1st of January, 1837, reserving the sum of $ 5,000,000, should be deposited with such of the several States, in proportion to their respective representation in the senate and house of representatives of the United States, as should authorize their treasurers, oi other competent authorities, to receive the same on the terms and at the times specified in the act; that on the 19th of January, 1837, an act was passed by the legislature of this Commonwealth, by which the treasurer of the Commonwealth was authorized to receive, on the terms prescribed by the act of congress, the proportion of the money in question which might be deposited with this Commonwealth, and to pledge the faith of the State for the safe keeping and repayment thereof; that the treasurer of the Commonwealth, accordingly, in the course of the year 1837, received three instalments of the money, amounting to the sum of $ 1,358,173-58 ; and that, on the 21st of March, 1837, an act was passed, by the legislature of this Commonwealth, providing, that the money so deposited, except the sum of $ 2500, should be deposited with those towns in the Commonwealth, which should agree to receive the same, in proportion to their respective populations, and that the money so deposited, or the interest upon the same, should be applied 3y such towns, to those public objects of expenditure for which they might then lawfully raise and appropriate money, and to no other purpose.</p> <p>The bill further set forth, that, on the 3d of April, 1837, the inhabitants of Hanover, at a legal town meeting duly warned for the purpose, agreed to receive their portion of the surplus money and empowered their treasurer to receive the same ; that in June and July following, the inhabitants, by their treasurer, received two sums of money amounting to $2812-50, being their portion of the money so deposited with the Commonwealth ; that at a town meeting on the 2d of April, 1838, a vote was passed, providing that such money should be lent, equally, to each and every inhabitant of the town ; that at another meeting on the 21st of the same month, three agents were chosen to recall and receive the surplus money from the persons to whom it had before been lent on sufficient security, and such agents were authorized to take the notes of the individuals who were entitled to receive it according to the vote passed on the 2d of April, which notes were to be payable when the State government should call for the money ; that on a motion being made at such meeting to require good and sufficient bondsmen on every note so given, it was voted, that the town would not require such bondsmen; that at another town meeting on the 7th of July, 1838, William Morse and Oren Josselyn, two of the defendants, and Thomas M, Bates, were chosen agents for the purpose of carrying into effect the votes of the town respecting the surplus revenue, and the town treasurer was directed to call in and pay over immediately to them the surplus money belonging to the town, and that some of the complainants were present at such meetings, and all of them who were so present, opposed and voted against the passage of all such votes, and that none of the complainants ever assented to any of such votes.</p> <p>The bill further set forth, that Albert White, the treasurer of the town, refused to pay over the surplus money to the agents so chosen, under the belief, that he had no authority so to do ; that at a town meeting on the 4th of March, 1839, Oren Josselyn was chosen treasurer of the, town; and that threats had, from time to time, been made, that the surplus money would now be lent and distributed in conformity with such votes, and that Josselyn, as treasurer of the town, would carry them into effect.</p> <p>The bill further averred, that the complainants were inhabitants of Hanover, and men of property, liable to be taxed therein according to law ; that the contemplated lending and distribution of the surplus money would be a direct injury to them, and a violation of the trusts upon which it was delivered to and received by the town ; that upon the receipt thereof, the town became bound to repay the same, whenever it should be required by the treasurer of the Commonwealth, to be by him refunded to the secretary of the treasury of the United States ; that if the money should be lent and distributed according to the votes of the town, without security, a large part thereof would be lost, and the complainants and other responsible inhabitants of the town would be compelled to repay to the Commonwealth the amount so lost ; that such loan and distribution was not a public object of expenditure for which the town might lawfully have raised and appropriated money on the 21 st of March, 1837, and, therefore, that the same would be illegal and contrary to the act by virtue of which the money was received.</p> <p>Wherefore the bill prayed, that the defendants might be required to answer, that the Court would make such decree in the premises as might be proper and necessary for enforcing and regulating the execution of the trusts under which the money was paid to the town, that the defendants and all persons having custody or control of the money and trust fund, might be estrained, by injunction, from lending and distributing it according to the votes of the town, or in any other way than for the purposes provided by the act under which it was paid to the town, and that the complainants might have such other and further relief in the premises as the nature of the case might require and to the Court might seem meet.</p> <p>The defendants demurred for the following causes : — Because the plaintiffs had not set forth in their bill such a case as was, at the time of filing the bill and the service thereof, within the jurisdiction of this Court:</p> <p>Because the plaintiffs had not set forth such a case as enti tied or enabled them to institute or maintain this suit or to demand or have any discovery or relief in the premises: and , Because the bill did not contain any matter of equity, wherein this Court, at the time of the filing and service of the same, could require the defendants to answer or ground any decree, or give the plaintiffs any relief; and any jurisdiction of the subject matter, if given to this Court by statute or otherwise, subsequently to the filing and service of the bill, could not extend to the original filing and service thereof, or bring the defendants under any liability in the premises.</p>

This was a writ of entry to recover a tenement in Dux bury, the demandants counting on the seisin of the wife, Sarah Whitney, and a disseisin by the tenant. At the trial, before Morton J., it was admitted, that John Holmes, the father of Sarah, died seised of the demanded premises, in 1807, and that upon his death they descended to her as his heir.

This was a prosecution commenced in the Police Court of New Bedford, on the complaint of Russell Cundell, against the defendant, for a violation of Revised Stat. c. 51, § 1, in not driving his truck to the right of the centre of the travelled part of an alleged road, on meeting with the complainant’s wagon, in consequence of which the wagon came in collision with the truck, and sustained some damage.

<p>This action was brought to recover the plaintiff’s proportion of the proceeds of a sale of oysters by the town of Ware-ham, of which town the plaintiff was an inhabitant. The defendant was treasurer of the town.</p> <p>The parties stated a case.</p> <p>On the 17th of July, 1837, at a meeting of the inhabitants if the town, a committee was appointed, with authority to nake sale of such quantities of the oysters belonging to the xown as they might think for its interest. A contract was accordingly made by the committee for the sale of 4000 bushels, at 1cents a bushel; and the purchasers paid into the hands of the defendant, as town treasurer, the sum of $ 500.</p> <p>At a meeting of the inhabitants on the 11th of March, 1839, it was voted, that the proceeds of such sale be granted to the several religious societies of the town, and that if any inhabitant of the town objected to such vote, he should be paid his proportion of the money, upon his applying to the town treasurer for the same within sixty days, and receipting therefor. On the 1st of May, 1839, the selectmen placed in the hands of the defendant an order directing him to pay, out of the proceeds of such sale, 22% cents to each person in Wareham entitled to a share thereof under such vote..</p> <p>The plaintiff objected to the vote, and applied to the treasurer for his proportion of the money within the time limited ; but the defendant refused to pay the same.</p> <p>If the Court should be of opinion, that the plaintiff was entitled to recover, judgment was to be entered in his favcr; otherwise, he was to become nonsuit.</p>

This was a petition for a certiorari to David Holbrook, a justice of the peace, by whom the petitioner had been fined for neglecting to appear at a meeting of a company of militia in the town of Cohasset, on the first Tuesday of May, 1838, for inspection of arms.

This was an action on the case against the defendant, foi erecting a dam and raising the water of Monatiquot river, a small unnavigable stream, in Braintree, in such a manner as to throw it back upon a mill-dam which the plaintiff had previously begun to construct. The trial was before Morton J. The defendants proved, that more than ten years prior to 1784.

<p>The teacher of a town school is not liable to any action by a parent, for refusing to instruct his children.</p>

This was a bill in equity setting forth, that the plaintiff, on or about the 15th of May, 1838, was and ever since had been, the owner of a promissory note for $ 22-70, or thereabouts, against the defendant, Joel R. Shephard, payable, as the plaintiff believed, to John H. Porter, or order, on demand, and dated within a few months before that time, but the exact tenor and date of which the plaintiff could not state ; that’ on or about that day, Joseph Porter, of Bangor,…

<p>Where the title to real estate under a deed, has once vested in the grantee, by transmutation of possession, it will not be divested or invalidated by a subsequent material alteration of the deed.</p>

Assumpsit by the plaintiff as the collector of taxes of the town of Milton, for the recovery of a tax assessed on the personal property of the defendant in 1837.

<p>Assumpsit for supplies furnished by the plaintiffs to Stephen G. Dickerman and his wife and child, who had fallen into distress in the town of Randolph, and whose lawful settlement was alleged by the plaintiffs to be in the town of Easton.</p> <p>The trial was, in the Court of Common Pleas, before Williams J.</p> <p>In order to prove that the settlement of S. G. Dickerman was in Easton, the plaintiffs proved that Ebenezer Dickerman, whose settlement was in Easton, was married to Parnel Bonney on the 8th of July, 1804 ; and it was admitted, that S. G. Dickerman, who was' born in 1806 or 1807, was her chi d.</p> <p>The defendants then proved, that Parnel Bonnéy was the daughter of Hopestill Randall; that she was married to William Bonney 3d, on the 22d of April, 1792 ; and that Bonney was alive, and occasionally in Easton, after the war of 1812, in which he was enlisted as a soldier.</p> <p>- The defendants admitted, that Randall always had his settlement in Easton, and that Parnel once had a derivative settlement from her father.</p> <p>The plaintiffs offered no evidence to prove, either that Bon ney had a settlement in Easton, or that he had no settlement in the Commonwealth.</p> <p>The defendants contended, that the derivative settlement which Parnel once had from her father, was transferred by her marriage to Bonney, and followed his settlement; and that the burden of proof was on the plaintiffs, to show, either that Bonney had a settlement in Easton, or that he had not a settlement in the Commonwealth. But the judge instructed the jury, that, in this posture of the evidence, the plaintiffs had proved a prima facie case ; and that the burden of proof was on the defendants, to show that Bonney had a settlement in this Commonwealth in some other town than Easton.</p> <p>The jury found a verdict for the plaintiffs ; and the defendants excepted to the instructions to the jury.</p>

<p>Under Revised Stat. c. 19, § 22, requiring field drivers to take up and impound, at any time, cattle going at large in the highway without a keeper, a field-driver is authorized to impound cattle so going at large, on Sunday, the action of debt to which the owner is subjected by the statute in such case, being merely a cumulative remedy.</p> <p>The field-driver, in such case, is not bound, under Revised Stat. c. 113, § 6, to leave with the pound-keeper a memorandum stating the cause of impounding and the damages demanded, this being requisite only where cattle are impounded damage feasant.</p> <p>If the owner of the cattle replevy them within twenty-four hours after they have been impounded, he cannot afterwards object, that no notice of such impounding was given him in conformity with the provisions of Revised Stat. c. 113, § 8.</p>

This was an action of trespass on the case. The plaintiffs were a corporation, composed of four members,, to wit, Thorndike, Waters, Winn and Fiske. The declaration contained three counts.

<p>By the answers of James Horton, the agent of the Salisbury Manufacturing Company, the alleged i trustees, it appeared, that on the 1st of October, 1836, he addressed a letter, in the following words, to James Babson, who was the tenant of a store belonging to the company : •</p> <p>“ You are hereby requested and authorized, for and on account of the Salisbury Manufacturing Company, hereafter and until otherwise notified, as application may be made to you by any person in the service of said company, [to advance] any amount in goods or money of your own, or of the company’s, that you may have in your hands, not exceeding the amount that may be due such person on settlement. This instruction is not to make any change in the mode of keeping our books. Checks will be drawn on you as is usual, for the amount due each individual. You will keep your accounts with such of them as avail themselves of this arrangement individually, and when the check is presented, you will deduct all such advances therefrom, or the company will be discharged from all liability to you.”</p> <p>It further appeared, that Babson, in pursuance of such order, did from time to time furnish the operatives in the employment of the company, with goods and money of his own and sometimes with money advanced to him by the company for the purpose ; that at the end of every quarter the amount of what was due to each operative was made up by the officers of the company, and a check drawn on Babson in favor of each for the amount so due ; that Babson then paid the balance due, if any, after deducting his advances ; that as the respondent believed, Babson furnished the goods and money wholly on the credit of the company ; that at the time of the service of the writ, the principal defendant, who was in the employment of the company, had earned the sum of $ 54-63, for his wages, and Babson had advanced to him in money and goods, the sum of $72-38 ; that the respondent believed, that the defendant knew of the arrangement between Babson and the company ; and that the wages of the defendant had always been settled in this manner. *</p>

<p>Assumpsit to recover a balance of accounts.</p> <p>By an agreed statement of facts it appeared, that in 1829 the plaintiffs were merchants doing business in Antwerp, tmd the defendant was a merchant residing in Salem ; that the parties had had commercial dealings with each other for several years previous to that time, the defendant consigning goods to the plaintiffs for sales and returns, and the plaintiffs accepting his drafts ; that in July 1829, the balance of accounts in favor of the plaintiffs was $ 11,284-12 exclusive of interest ; that on the 8th of May, 1829, the defendant, being the owner of the brig Cambridge and her cargo, then on a voyage to - St. Jago de Cuba and Europe, failed in business and assigned his prop erty to Merrill and Upton, in trust for the benefit of his creditors ; that the bill of lading of the outward cargo and also that of the cargo to Europe, were assigned by the defendant to Merrill and Upton, the former on the 9th of May, 1829, and the latter on the 5th of August, 1829, without being indorsed by the master of the Cambridge, to whom she was consigned ; that the brig arrived at Antwerp on the 8th of August, 1829, and the master delivered the cargo and a bill of lading to the plaintiffs, he having been directed so to do by the defendant, in case he should go to Antwerp ; that the plaintiffs disposed of the cargo, received the proceeds, collected about the sum of $ 3200 for freight, and passed the whole to the credit of the defendant; and that upon a statement of their account with the defendant by the plaintiffs, it appeared that there was a balance of $ 3343-96, due to the defendant.</p> <p>It further appeared, that on the 22d of August, 1829, the balance in the hands of the plaintiffs was attached at the suit of Timothy Wiggin of London, who had a demand against the defendant, in which suit judgment was recovered against the defendant, and the plaintiffs adjudged his trustees in the sum of $ 3343-96 ; and that this sum was paid to the court at Antwerp by the plaintiffs, on the 23d of August, 1830 ; that on the 11th of November, 1829, the assignees of the defendant commenced an action against the present plaintiffs for the proceeds of the freight and cargo of the Cambridge, and, on the 26th of May, 1831, recovered judgment by default against them for the sum of $ 2500, which sum was fixed upon by consent of the parties, and was paid over to the assignees ; that the plaintiffs charged the defendant with the sum of $ 3343-96 paid to Wiggin, and with the sum of $ 2500 paid to the assignees of the defendant; and that the present action was brought to recover the balance due from the defendant to the plaintiffs, upon their account stated.</p> <p>If the plaintiffs were entitled to recover, judgment was to be rendered in their favor, for such sum as the Court should determine ; otherwise the plaintiffs were to become nonsuit.</p>

<p>The Revised Stat. c. 47, § 1, subjecting to a penalty any person who should presume to be an innholder, common victualler or seller of wine and spirituous liquor, to be used m or about his house, &c., without being licensed, is not repealed by St. 1838, c. 157.</p> <p>An indictment under Revised Stat. c. 47, § 1, charging, that the defendant, without license, presumed to be and was a common seller of wine &c. to be used in and about his shop, is not bad on the ground of its generality.</p> <p>Upon such an indictment it is nut material, whether the sales were all made to the same person, or to different persons.</p> <p>An indictment under St. 1838, c. 157, charging the defendant with selling spirituous liquors in a less quantity than fifteen gallons, without license, but not specifying the kind of spirituous liquor sold, is sufficiently certain ; and such indictment is supported by proof of the sale of brandy.</p> <p>If such indictment merely aver, that the defendant, not being licensed, sold one pint of spirituous liquors, it is bad, as it does not negative that the sale was of fifteen gallons or more.</p> <p>An indictment alleging a sale of “ spirituous liquors in a less quantity than fifteen gallons, and that delivered and carried away all at one time, to wit, two quarts of spirituous liquors,” was held to be good. (See note.)</p>

Harris, the plaintiff in error and original defendant, was indicted for presuming to be a common seller of wine and spirituous liquor, and also for selling spirituous liquor in a less quantity than fifteen gallons, at divers times, without being licensed.

By an agreed statement of facts it appeared, that this was assumpsit, on a promissory note, dated July 12th, 1812, by which the defendant promised to pay William Gray, the plaintiffs’ testator, the sum of $ 3314-54, on demand, with interest, that, on the 23d of November, 1826, an indorsement was made on the note by the defendant and attested by a witness, as follows : — “ Nov. 23d, 1826. I acknowledge the within note to be just and due. Samuel Bowden.

Assumpsit on a promissory note. At the trial in the Court of Common Pleas, before Williams J., the defendant introduced evidence tending to prove, that the consideration of the note was the sale of an ox by the plaintiff to the defendant, with a warranty, that the ox would fatten as well as any one the defendant then had ; that one eye of the ox, which was then apparently defective and diseased, was falsely and fraudulently represented by the plaintiff to have been hooked…

<p>A testator devised as follows : “ I give to my beloved wife, A., the use and improvement of all my estate, both real and personal, so long as she remains my widow ; but if she marries again, then I give her the one half of my personal estate, after my debts and fuñera! charges are paid, to be at her own disposal, and the improvement of one third part of my real estate during her natural life, which is in lieu of her right of dower in iny estate ; and I do hereby order her to pay all the legacies hereinafter mentioned. Item, I give and devise to my kinsman N., and to his heirs and assigns, all my real estate ; and I will, that he come into possession of two thirds thereof at my wife’s marriage, and of the other third thereof at her decease. I also give him the one half of my personal estate after my just debts and funeral charges are paid ; and I will that he take possession of the same at my said wife’s marriage. But if my said kinsman shall die before he comes into possession of my estate above given him, and leave no lawful issue, then I will, that all my estate which I have above given him, shall be and remain to my two kinsmen, E. and G., and to their heirs and assigns, in equal shares ; and that they come into possession of the same at the respective times my kinsman N. is to take possession, if he lives But if either of my kinsmen, E. or G., shall come into possession of said estate and leave no lawful issue, I will that my estate given them as above shall be and remain to the survivor of them, the said E. or G., and to his heirs and assigns for ever.” The testator then gave several pecuniary legacies, of unequal amounts, to his various relations, but the will contained no residuary clause. The wife died without having been again married. It was held, that this was not a devise to N of a contingent remainder in the real estate, depending, as respected two thirds thereof, on the marriage of the widow, and, as respected one third, on her death ; but that it vusted an immediate estate in the whole of the real property, in him, subject to the right given to the wife therein ; and liable to be divested by his death without issue before the termination of her estate ; that in case N. should die before her, the whole real estate would vest in E. and G. by way of executory devise; and that the bequest to N., of one half of the personal estate, was also not dependent upon the contingency of the marriage of the widow, and that although she was not again married, yet N. was entitled to the possession thereof, as soon as her right to use it had terminated ; and that the other half, after the expiration of the wife’s interest in it, was intestate property, and was to be distributed among the testator’s heirs at law. '</p>

This was an action brought against the defendant, to recover one quarter’s rent of certain stables, &c. leased by the plaintiffs to the Salem and Boston Stage Company, of which corporation the defendant was once a member.

<p>Wflere a debtor, before the expiration of six years from the time when the debt accrued, proposed to the creditor, that if he would forbear bringing his action at that time, he should continue to have the same rights, for one year more, that he then nad, and the creditor answered that he would not consent thereto, but did not, in fact, commence his action till the six years had expired, it was held, that this was a sufficient compliance, on the part of the creditor, with the debtor’s proposal, and that the debtor could not, in such action, avail himself of the statute of limitations.</p> <p>Where a corporation appointed an agent to take charge of its interest in a tract of land, mortgaged to it, and such agent was authorized by the treasurer of the corporation to advance a sum of money to the mortgagor, to enable him to pay a tax laid for the purpose of constructing a highway through the land, but the agent, instead thereof, gave a note for the amount of the tax, in the name of the corporation, it was held, that the corporation was not liable to an indorsee of such note, upon the note itself, nor in an action for money had and received.</p>

By an agreed statement of facts, it appeared, that this was an action by a bank established in the town of Marblehead, against the defendant, a resident in that town, as indorser of a promissory note ; that the plaintiffs demanded payment of the makers, according to the usual course of business of the bank, by a notice informing them, that the note was due, and that it was at the bank for payment; that the note not having been paid, the cashier, on the afternoon of the last…

<p>This was case against the defendants, as selectmen of Lynn, for not permitting the plaintiff to vote at a town meeting held for the choice of county commissioners in 1838.</p> <p>At the trial it appeared, that the meeting in question was held in the town-hall of Lynn ; that at the upper end of this hall was an enclosed space, within which the selectmen stood to receive the ballots ; that in the back part of this enclosure was a table upon which was placed a large box, with a small apérture in the cover; that there were other smaller boxes without covers, in the enclosure ; that the usual practice had been for the voter to deliver his vote into the hands of one of the selectmen, who was stationed in front of the table, and who thereupon called the name of the voter, holding the vote till his name was found on the check list, and then deposited the vote in the large box on the table ; that the vote was usual ly held as delivered by the voter, so as to be seen but not so as to be read ; and that this mode of voting was adopted several years ago, in consequence of frauds being practised by voters by depositing more than one vote, and had been followed ever since.</p> <p>It further appeared, that at the meeting in question, the plaintiff offered to vote, holding up his hand closed tight; that the selectman who was receiving the votes, offered to take die plaintiff’s vote in his hand as he had done the other votes, but the plaintiff refused to deliver it to him, and demanded the ballot box in order that he might deposit his vote himself; that the selectman declined offering him the large box, in which all the votes which had been given on that day, were deposited, but reached one of the smaller boxes to the plaintiff to receive his vote ; that the plaintiff refused to deposit his vote therein, and did not vote at all on that occasion ; and that the small boxes had been sometimes used on former occasions for the reception of votes, but were not so used at the meeting in question.</p> <p>The jury were instructed, that the plaintiff had a right to deposit his vote in the ballot box in person, and that the method adopted by the defendants was not a compliance with the terms of the statute ; that the plaintiff was entitled to recover, if the defendants refused his vote, whatever might be their motives, and whether such refusal was the result of mistake or error in judgment on their part, or was wilful and malicious ; but that if it were malicious, the jury would be authorized to give greater damages, than if it were a mere error in judgment.</p> <p>The jury found a verdict for the plaintiff; and the defendants moved for new trial, on the ground that the jury were misdirected.</p> <p>If the directions were correct, judgment was to be rendered on the verdict; otherwise a new trial was to be granted.</p>

Bill in equity to recover two quarterly instalments of an annuity bequeathed to the plaintiff by her deceased husband, Charles Walker, of Framingham, physician. The answer admits, that Charles Walker, on or about the 30th of December, 1838, made his last will, containing the following provisions. 1.

By an agreed statement of facts it appeared, that this was assumpsit for six gallons of brandy, six of gin, six of rum, and about sixteen of three different kinds of wine, all sold, deliv ered and carried away at one time, on the 29th of December, 1836; and that the plaintiff was not licensed to sell wine or spirituous liquors at the time of the sale. The writ was dated on the 28th of October, 1837.

Trover for a chaise and harness. The case was tried before Dewey J. The chaise was conveyed to the plaintiff, as executrix of her husband, by John M. Moriarty, by deed of mortgage dated the 3d of February, 1838, and duly recorded in the town of Gloucester, where the mortgagor resided. The harness was mortgaged to the plaintiff’s husband by John M. Moriarty, by deed dated the 23d of February, 1835, and duly recorded in Gloucester.

<p>Br the answers of John W. Browne, one of the alleged trustees, it appeared, that on the 15th of April, 1837, the principal defendants mortgaged certain property to John Hilton and others, who were their creditors, which mortgages were recorded at nine o’clock in the evening of that day ; that about ten o’clock on the same evening, the principal defendants came to the office of the respondent, to consult him about their affairs, and told him, that they had made the mortgages before mentioned, and that it was their purpose that these mortgages should be recorded, and should take precedence of the claims of their other creditors ; that the respondent then advised them to assign their property, in order to save it from attachment and distribute it equally among their creditors ; that he believed, that the defendants first resolved to make an assignment upon his advice at that time ; that an assignment was thereupon made to the respondent by the defendants, of all their property pot exempted from attachment, for the benefit of all their creditors who should become parties thereto, according to the provisions of St. 1836, c. 238 ; and that after the service of the plaintiffs’ writ upon the respondent, certain creditors of the defendants became parties to the assignment. In a subsequent answer, Browne stated, upon the authority of one of the defendants, that before coming to his office on the evening when the assignment was made, they gave notice- to the mortgagees to put the mortgages on record, then intending to make an assignment if they were not prevented from so doing by an agreement made with their creditors for an extension of the demands against them, and believing that they were not so prevented ; and that upon consultation with the respondent, they were informed, that they were not prevented by the execution of such agreement.</p>

This was a bill in equity praying for an injunction against the respondents.

<p>As a general rule, if a bank receives a note for collection, it is bound to make a seasonable demand on the promisor, and, in case of dishonor, to give due notice thereof to the indorser.</p> <p>If a note deposited in a bank for collection is payable, or the promisor resides, in another place, and no agreement is made in regard to compensation for collecting, and the bank seasonably transmits the note to a suitable bank in such other place, for collection, the former bank is not responsible to the owner of the note for the m sfeasance or negligence of the latter bank ; and it makes no difference, that the note was received by the former bank as collateral security.</p> <p>/(seems, that the owner, in such case, has his remedy against the bank guilty of the misfeasance or negligence.</p>

Bill in equity against the Chelsea bank, and against a large number of individuals .alleged to be stockholders in the bank.

Assumpsit on a policy of insurance executed by the defendants, on the brig Malaga, for the sum of $ 8000, for one year from the 27th of August, 1835. The cause was tried ■before Shaw C. J. It appeared that the brig was owned by Abel Sawyer, who was also the master, Joseph Badger and Joseph P. Bradbury, all of Portland, Maine ; and that the insurance was effected, and this action was prosecuted, for the benefit of all the owners.

<p>A corporation was empowered by its charter, to build a dam westerly from Boston to Brookline, over an arm of the sea, anrl from this main dam to run a cross dam southerly to the shore, so as to make on one side of the cross dam a full basin and on the other an empty or receiving basin, and to cut raceways from the full basin to the receiving basin, and to have the use of the land in the basins, derived partly from the Commonwealth and partly from individuals, either by purchase or by taking it for public use, at an appraisement; and to use, sell or lease the water power thus created ; and the corporation built the dams accordingly and erected mills. It was held, that it was within the constitutional power of the legislature to authorize a rail road corporation to construct their road across the basins, making com pensation to the water power corporation for the diminution and injury caused thereby to the water power.</p> <p>Held also, that the grant of this authority to the rail road corporation could not be considered as annnllingor destroying the franchise of the water power corporation; that the right of the water power corporation to use the land constituted an interest and qualified properly therein not larger nor of a different nature from that acquired by a grant of land in fee, and did not necessarily withdraw it from a liability to which all lands in the Commonwealth are subject, to be taken for public use, for an equivalent, when in the opinion of the legislature the public exigency requires it 5 and that the effect of the rail road act was merely to appropriate to another and distinct public use a portion of the land over which the franchise of the water power Company was to be used.</p> <p>If the whole of a franchise should become necessary for the public use, it seems that the right of eminent domain would authorize the legislature to take it, on payment of a full equivalent.</p> <p>An act of the legislature, in the exercise of the right of eminent domain, appropriating to public use, on payment of a full equivalent, property or rights in the nature of property gtanted by the State to individuals, is not a law impairing the obligation of contracts, within the meaning of the constitution of the United States.</p> <p>It was held, that the act authorizing the rail road is not liable to the objection that it does not provide for compensation for the damage done to the franchise of the water power corporation, for the franchise was not taken but only a portion of the land over which it extended, and for all damages occasioned by the taking of land the act makes provision.</p> <p>The act empowered the vail road corporation to locate and construct a rail road “ in or near the city of Boston and thence to any part of the town of Worcester, in such manner and form as they should deem expedient.” It was held, that the act sufficiently declared the public necessity and convenience of the rail road and fixed the general termini, and that the delegation to the corporation, of the power to fix tlie precise termini and the intermediate course between them, and thus to take private property for public use, did not render the act unconstitutional and invalid.</p> <p>Where a corporation was empowered by the legislature, in general terms, to locate and construct a rail road between certain termini, and between these termini lay an extensive tract of land already appropriated, under the authority of the legislatute, to a distinct public use, namely, for mill ponds, by another corporation, and this tract might be crossed by the rail road, with some diminution indeed of the mill power, and which might be compensated in damages, but without essential injury, it was considered that there was nothing in the nature of such public use, and in the extent to which it would be impaired or diminished, from which the power of constructing the rail road over it might be presumed to have been restrained by the legislature.</p> <p>It was held, that if the water in the basins above mentioned was once a part of Charles river, it ceased to be so after it was effectually separated by the dam and rendered unfit for the general purposes of navigation ; and consequently, that a prohibition to the rail road corporation to build a bridge over the waters of Charles river connected with Boston or to place any obstruction therein, was not intended to apply to the basins, but only to the waters of Charles river below the dam and open to navigation, and was designed mainly to protect this navigation.</p>

<p>Br an agreed statement of facts it appeared, that this was an action of assumpsit for not delivering a quantity of flour in pursuance of a contract entered into between the parties, on the 14th of August, 1835. The contract was in the following words.</p> <p>“ This indenture between,” &c. “ showeth, that I, the said Luke George, do agree to deliver in Boston, Massachusetts, to said Quarles, or his agent, one thousand barrels Gennesee fresh ground superfine flour, good quality, at the rate of six dollars per barrel, at any time within six months from date. And I, the said George, agree to give said Quarles six days’ notice prior to the time the flour, is delivered. I, the said Quarles, do agree to pay for the said flour the price above named, six dollars, in cash, on delivery of the flour. It is agreed, that if, within three months, either party wish to be released from this engagement, said party shall be allowed so to do, by paying to the other party the sum of five hundred dollars.”</p> <p>The flour was not delivered ; nor was any notice given by the defendant to the plaintiff, that he should deliver the same ; and neither party took advantage of the provision for a release from the contract within three months.</p> <p>It was agreed, that Samuel Quarles, the son of the plaintiff, would have testified, that on the 13th of February, 1836, he went to the defendant’s store, and told him, that he was authorized to receive the flour, and was ready to receive it; and that the defendant replied, that he should have nothing to do with it, and declined to give any other answer. No other demand than this was made by the plaintiff on the defendant.</p> <p>If, upon these facts, the Court should be of opinion, that the plaintiff could maintain this action, the defendant was to be defaulted, and the Court were to determine upon the period of time, with reference to which the damages were to be assessed, it being agreed, that such damages were the difference between the price mentioned in the contract and the actual value. If the Court should be of opinion, that the plaintiff could not maintain this action, he was to become nonsuit.</p> <p>The case was submitted without argument</p>

<p>On an indictment ehaiging, that certain specified goods of one E. had been burglariously stolen, and that the defendant received the same goods, knowing them to have been stolen, a verdict was returned as follows z “The jury find the said D. guilty of receiving and aiding in concealing stolen goods, knowing them to have been stolen, but 'not knowing them to have been burglariously stolen.” Held, that this was a special verdict ; and that it was insufficient to sustain a sentence, because it did not find that the defendant had received the goods described in the indictment.</p>

<p>A ship laden with tobacco and cotton on freight, and bound from New Orleans to Havre, was injured by the perils of the seas and a part of her cargo damaged, and she returned to New Orleans for repairs. There was reason to believe that she could be refitted for sea in three or four months. The cargo could not be sent on in another vessel at a lower rate of freight, and the master delivered it up to the shipper. It was held, that the insurers on the freight were responsible for the loss of the freight on the portion of the cargo which was wholly destroyed, but that they were not responsible in respect to the sound portion, because the master was not bound to give it up without receiving full freight on it, but might have retained it, to be transported in his own vessel, nor in respect to a portion of the cotton which was sold by the master at New Orleans, in consequence of its being wet by sea-water, although cotton in that condition is liable to spontaneous ignition.</p> <p>In adjusting a partial loss under a policy on the freight of a cargo of cotton and tobacco, the freight being valued at an entire sum, the valuation should be applied to the co'tton and tobacco respectively in the proportion which the stipulated freight of each bears to the valuation of the whole freight, and the loss be estimated accordingly.</p>

<p>Where in a policy of insurance against fire, underwritten by the defendants, it was stipulated that when a subsequent insurance on the same property should be made by any other insurer without the consent in writing of the defendants, it should ipso facto annul the first policy, and in a subsequent policy, underwritten by another insurer, it was stipulated that if the assured should have made any other insurance without the knowledge and consent of the subsequent insurer, the subsequent policy should be null and void, it was held, that the subsequent policy, being wholly inoperative, could not be set up by the defendants as evidence of a subsequent insurance, and that consequently the first policy remained in force.</p> <p>Where a clause in a policy of insurance against fire, provided that if the building insured should be alienated by sale or otherwise, the policy should thereupon be ipso facto void; and another clause provided that when any estate mortgaged should be taken possession of by the mortgagee for breach of the condition, the policy should thereupon be void ; it was held, that the policy did not intend to restrain the assured from conveying in mortgage, and that such a conveyance would not avoid the policy, so long as he remained in possession and no entry was made fur foreclosure.</p>

<p>Soon after the commencement of a lease for three years, of a warehouse or store in Boston, in wntch .ease :he lessee covenanted to pay the rent during the term and to leave the premises in good repair, the city took the front part of the land on which the building stood, and cut down the front wall, for the purpose of widening the street. The building remained in this condition about two years, when the lessor took it down and erected a new store on the same site, but diminished by the strip of land taken by the city. Before the wall was taken down, the lessee removed into another store, and remained there until the new one was erected, when he removed back to the new one. In a complaint by the lessee against the city for damages, it was held, that the plaintiff was entitled to recover the expenses of removing his goods from and back to his original place of business, and for the loss of earnings for the few days occupied in such removals, and a reasonable sum for the rent of another store for so long a time as would reasonably have been required for putting up a new front wall ; (or, if he had suspended his business, that he might have recovered for the loss of earnings during a reasonable time for rebuilding the wall ;) that he had a right forthwith to rebuild the wall, carrying it up to the roof, and if he had done so, inasmuch as lie could not have compelled a contribution from the lessor, he would have been entitled to recover the whole cost from the city ; but that as lie did not in fact put up the wall, but left the lessor to make hie full claim of damages on the city, he could recover only such propoition of the estf mated expense as his interest (regard being had to the portion of the store occupied by him and the time which his lease had to run) bore to the value of the whole estate.</p>

<p>This was an action to recover a quarter’s rent of certain real estate in Boston, called and known as Tudor’s building.</p> <p>On a case stated it appeared, that on the 21st of February, 1831, Tudor conveyed the same real estate to J. A. Lowell, in mortgage, to secure the repayment of $ 10,000, in three years from the 1st of January, 1832 ; and that on the 28th of February, 1832, he mortgaged the same estate to Lowell to secure the repayment of the further sum of $ 25,000, in three years from that date.</p> <p>On the 20th of November, 1833, Tudor conveyed the same estate to Robert Hooper junior, the agent and trustee of the plaintiff, in mortgage, as collateral security for a bond bearing the same date, in the penalty of $ 50,000. The condition of the bond was, that Tudor should pay, with interest, whatever sum might be found due to the plaintiff, in five years after a balance of accounts should be struck and notice thereof given to Tudor.</p> <p>In December, 1834, the plaintiff rendered to Tudor an account, in which the balance claimed by the plaintiff was £ 20,473 sterling.</p> <p>On the 31st of January, 1835, Lowell assigned his two mortgages, together with the debts secured thereby, to the plaintiff; and on the same day the plaintiff entered on the estate, for condition broken, under these two mortgages, pursuant to an arrangement between the parties.</p> <p>On the 2d of February, 1835, the plaintiff demised the estate to Tudor and Robert H. Gardiner, the defendants, for the term of three years, at an annual rent of $ 5000, payable quarterly in sums of $ 1250, on the second day of May, August, November, and February, in each year. The indenture of I°ase recites the entry under the two mortgages assigned to the plaintiff; and it provides, that the lessees shall not assign the lease, except by one of the lessees to the other, if he sees fit, and that the lease shall become void whenever the two mortgages shall be redeemed.</p> <p>On the 9th of November, 1837, the plaintiff and Tudor entered into an agreement, in part, as follows : “ Whereas there is now. standing between said parties an account current, upon which the said Wiggin claims a large balance as due to him ; and whereas a compromise of all claims between said parties has been agreed to upon the following terms : 1. Said Tudor agrees, that he will convey to Robert Hooper junior, and James W. Fenno, as trustees, all his interest in the estate m Court street, called Tudor’s building, by a warranty deed with the usual covenants, which estate is subject to two mortgages, nominally for $86,000, but somewhat reduced by payments on account thereof, now held by said Wiggin or his agent, &c. 2. Said Tudor agrees, that he will convey to the same trustees all the interest which he now has in an estate in Commerce street, in New Orleans, by a warranty deed with the usual covenants, which estate is subject to a mortgage now held by said Wiggin, or his agent, for $ 20,000, &c. The said two estates are to be held by said trustees for the full term of three years from the second day of February next, and if on or before that time be fully expired the said Tudor shall pay to said Wiggin or his agent, the sum of $ 100,000, and any arrears of interest there may be, as provided in article third, then the trustees shall reconvey the said estates to said Tudor or his assigns ; but if he shall fail to pay said sum as aforesaid, then the said trustees shall convey the said estates to said Wig-gin or his assigns in fee simple, &c. It is understood and agreed, that the said estates are to remain in possession of said Tudor during the aforesaid term of three years, unless he shall make default in the payment of the interest money hereinafter agreed to be paid by him, as provided in the next following article, &c. 3. Said Tudor agrees, that he will pay $ 5000 per annum in quarterly payments, the first of which shall be on the second day of May now next, as and for the interest of that portion of the debt claimed by said Wiggin, which is intended to be secured by the aforesaid conveyances ; and that if at the end of said three years any part of said interest money shall be unpaid, then said Tudor shall not be permitted to redeem said estates without paying up all such arrears in addition to said $ 100,000. But this provision is not to deprive said Wiggin of any other remedy he may have to recover said interest. 4. Said Tudor agrees, that on receiving from said Wiggin the release hereinafter mentioned, he will deliver to said Wiggin, or his agent, his note for $ 5000, indorsed by Robert H. Gardiner, payable in one year from the second day of February next, with interest thereon, at five per cent per annum, &c. 5. That on receiving the release aforesaid he will pay in cash to said Wiggin, or his agent, the sum of $5000. 6. Said Tudor agrees, that the rents of Tudor’s building shall be collected by James W. Fenno during the three years aforesaid, and that said Fenno shall apply the said rents, so far as may be necessary for that purpose, to the pay ment of the said $ 5000 per annum thirdly above stipulated to be paid by said Tudor. 7. Said Tudor agrees, that he will make the conveyances of the two estates, &c. deliver to said Hooper the note aforesaid, and pay the $ 5000 in cash aforesaid to said Wiggin, or his agent, on or before the second day of February next, he, said Wiggin, by himself or his agent, delivering to said Tudor the release aforesaid at the same time. 8. In case of said Tudor’s neglect to pay the interest money above mentioned punctually as above provided, it shall be the duty of the trustees, after the interest money shall have been in arrear for the space of thirty days after notice of such default is given to said Tudor, in writing, to deliver absolute deeds of the two estates aforesaid, to the said Wiggin, &c. without any further right of redemption......11. And the said Wig-gin agrees, that upon the delivery by said Tudor of the conveyances aforesaid, and of the note of $ 5000 aforesaid, and ■ of the $ 5000 in cash aforesaid, he will execute and deliver to said Tudor a full release of all claims which he holds against said Tudor, and that as soon as the said Tudor shall have conveyed to said trustees the estates aforesaid, he will discharge the mortgages thereupon which he now holds, provided the title to said estates be found in all other respects free and clear from all incumbrances, or will at his election deliver to the trustees as an escrow, a release of the said mortgages, to be delivered to said Tudor and to take effect when he redeems the mortgaged premises according to this agreement.”</p> <p>On the 2d of February, 1838, Tudor executed and delivered deeds of the two estates to Hooper and Fenno, the trustees, and paid to the plaintiff’s agent $ 5000 in cash, and gave him his note for $5000, indorsed by Gardiner. At the same time the plaintiff, by his agent, executed and delivered to Tudor an instrument under seal, which, after reciting the agreement of the 9th of November, 1837, proceeds as follows : " Now, for the purpose of carrying the said agreement into effect, and doing that which on the part of the said Wiggin is to be done under and pursuant to the said articles of agreement, and effecting the compromise of the claims which by the said agreement are intended to be compromised, the said Wig-gin does hereby release and discharge the said Tudor of and from all claims which, at the date of the said articles of agreement, the said Wiggin held against the said Tudor, which, by the said articles of agreement, the said Wiggin stipulated to release, and from none other whatsoever. Provided, however, that nothing herein contained shall be deemed or taken to release Robert H. Gardiner of or from any claim or claims Which the said Wiggin has against him, unless the said articles of agreement do, under all the circumstances under which the same were entered into, require the said Wiggin to release him, the said Gardiner, as well as the said Tudor, and if they do not so require, the said Wiggin reserves to himself the right to sue the said Gardiner, and to prosecute to final judgment any suit which he may choose to prosecute against him, and to take all necessary legal means to commence and prosecute the same with effect, notwithstanding this release. ” Tudor protested against receiving this instrument as a compliance with the agreement of the ninth of November, objecting to the above proviso ; but he took the same under protest, reserving all his and Gardiner’s rights.</p> <p>. Up to the 2d of February, 1838, Tudor continued in possession of Tudor’s building. He paid the rent reserved in the lease as it became due, until the rent for the quarter ending on the 2d of November, 1837, became due. This quarter’s rent the defendants, after the execution of the agreement of the 9th of November, refused to pay, and this action was brought to recover the same.</p> <p>Another action was brought to recover the rent of the succeeding quarter, ending on the 2d of February, 1838 ; which was submitted to the opinion of the Court on the same facts.</p> <p>Upon these facts, and such just inferences as the Court should think warranted, judgment was to be rendered for the plaintiff or the defendants, in either or both of the actions, as the law should require.</p>

<p>Trespass against the sheriff of Suffolk, for taking and carrying away certain merchandise.</p> <p>At the trial, before Putnam J., the plaintiffs proved the ex ecution of an indenture, dated the 13th of July, 1837, and recorded on the 28th, between Joseph M. Brown of the first part, and Charles Henshaw and John Henshaw, the plaintiffs, of the second part, by which Brown, in consideration of one dollar and of his indebtedness to the plaintiffs severally and of their liabilities respectively for him, “ sells, assigns and con veys to them his goods, wares and merchandises on board the brig Oriental, now at sea, and all his right, title and interest therein, subject however to a previous conveyance of this date thereof to George W. Pratt ” (and five other individuals and firms specified) “ and to all the provisions and parts thereof, reference whereto to be had”; habendum, to the plaintiffs “in proportion to their several demands against and liabilities for the party of the first part, provided that if the party of the first part shall pay to the parties of the second part what he owes them severally and indemnify and hold them harmless respectively against their liabilities for him, then this bill of sale to be void ; and if he shall pay any one of the persons, parties hereto of the second part, what he owes him and indemnify him against his liabilities for him, then this bill of sale, as to such one, shall be void, and in force as to the others ”; and the plaintiffs are authorized to receive from Pratt and others, named in the first conveyance of the property, “ the same or the proceeds thereof, whenever, or such and so much of either as shall remain after, the demands of those persons against and liabilities for the party of the first part are paid and discharged, and the same to convert into money and the net proceeds thereof to apply to the payment and discharge of their demands against and liabilities for the party of the first part, and the surplus, if any, pay to the party of the first part.”</p> <p>By the indenture referred to, (which also was recorded on the 28th of July, 1837,) between Brown, of the first part, and Pratt and others, of the second part, Brown, in consideration of one dollar paid him by Pratt and others, and of his indebtedness to them severally and respectively and their liabilities for him respectively and severally, sells, assigns and conveys' to them his goods, wares and merchandise above mentioned, habendum to them in proportion to their several demands against and liabilities for him, provided that if he shall pay them what he owes them severally and indemnify and hold them harmless respectively against their liabilities for him, then this bill of sale to be void ; and if he shall pay and indemnify any one of them, it shall be void as to such one and in force as to the others ; “ and immediately on the arrival of the property assigned, the parties of the second part may proceed to sell the same by such agents, and in such manner, and on such terms, as they think judicious, and may and shall apply and distribute the net proceeds to pay them their several demands against and hold them harmless against their respective liabilities for the said party of the first part ; and any surplus property or proceeds which may be left after paying and indemnifying themselves as aforesaid, whether the conditions of this conveyance shall have been broken or not, shall belong to the party of the first part, or his assigns.”</p> <p>The plaintiffs called witnesses to prove, that Brown was indebted to them respectively on certain promissory notes produced.</p> <p>H. Bullard, a witness called by the plaintiffs, testified that he was a clerk of Brown ; that the brig Oriental arrived in Boston on the 28th of July, 1837 ; that her cargo was landed and stored in Brown’s store in Boston ; that the property attached was a part of this cargo, and was in Brown’s store when attached ; that Brown failed and became insolvent on the 6th of June, 1837 ; that he was then in possession of merchandise and other property, and that within the first or second day after his failure all his property open to attachment was disposed of by way of mortgage to particular creditors ; and that at the time of the arrival of the Oriental, he had no property open to attachment.</p> <p>J. Garrett, called by the plaintiffs, testified that when the Oriental was telegraphed, he went down the harbour in a boat, with Brown and Charles Henshaw ; that they went on board the brig, and Brown delivered to Henshaw some horns, a part of the cargo, saying that he delivered all the property on hoard which belonged to him, as the property of Charles Henshaw and others ; and that this was before the attachment.</p> <p>The plaintiffs called Pratt, who testified, that he was one of the mortgagees in the prior mortgage ;' that on the arrival of the Oriental, he authorized Brown to take possession of the mortgaged property and sell it for the mortgagees, and that Brown remained in possession under that authority till the attachment was made ; that Brown’s debt to him had been settled and paid by notes of third persons, which notes were satisfactory to him, and were the proceeds of property mortgaged to him, which Brown had sold ; but he could not state whether this was done before or after the property was at tached by the sheriff.</p> <p>The plaintiffs then called another of the mortgagees in the prior mortgage, who testified, that he authorized Brown to take possession of the property and sell it ; that he understood this to be for the* benefit of all the mortgagees ; that the property was in Brown’s possession under such authority when the attachment was made ; that the firm, in which the witness was a partner, were sureties on a customhouse bond for Brown, when the mortgage was made ; and that the bond had been paid, but whether before or after the attachment he did not know, although he could easily ascertain.</p> <p>The defendant then put into the case the writ of attachment under which, as sheriff, he attached the property in question ; and he contended, that upon the facts proved it was lawful for him to make the attachment, because the mortgage to the plaintiffs was void as against the attaching creditor, 1. by reason of the statute of 1836, c. 238, to regulate the assignment and distribution of the property of insolvent debtors ; and, 2. because the condition of the mortgage was so vague and general as to amount to a fraud on the registry law. He further contended, that the facts disclosed in relation to the prior mortgage would prevent the plaintiffs from recovering in an action of trespass ; and that if they had any remedy, it was by an action on the case for an injury to their interest in the property.</p> <p>As the facts were not controverted, the jury were directed to find the defendant guilty ; and a verdict was returned accordingly, subject to the opinion of the whole Court. •</p>

<p>This was an action of debt upon an instrument under seal, dated the 28th of March, 1835, between the plaintiff on the one part, and Charles E. Bowers and Stephen Titcomb, the defendants, on the other. In this instrument, the plaintiff agrees that he will, on or before the 20th of August, 1835, grant, bargain, convey, and quitclaim unto the defendants, their heirs and assigns, all his right, title, interest, claim, and demand in and to all the land lying and being in township number Seven, in the county of Oxford and State of Maine, and now held in common with the proprietors thereof, and containing by estimation 6343 acres or thereabouts, upon the defendants’paying to him or his assigns therefor, on or before the 20th of August, the sum of $ 6343, being one dollar per acre, one quarter part of the purchase money in cash on the delivery of the deed, and the remaining three quarter parts in three equal instalments, in one, two, and three years from the 20th of August, with interest thereon annually, and securing the payment thereof with satisfactory collateral security. And the defendants, for themselves and their and each of their executors and administrators, covenant, promise, and agree, to and with the plaintiff, his executors and administrators, that they will, on or before the 20th of August, give notice to the plaintiff or his assigns, of their agreeing or. declining to purchase the land at the price and upon the terms mentioned ; and they further promise, covenant, and agree, to and with the plaintiff, that if they, the defendants, shall agree to purchase of the plaintiff the said land as aforesaid, they will pay to him or his assigns therefor the sum of $ 6343, in manner following, to wit, one quarter part in cash on delivery of the deed, and the remaining three quarter parts in three equal instalments, in three promissory notes of hand, payable to the plaintiff’ or order, one payable in one year with interest, another payable in two years with interest thereon annually, and the other payable in three years with interest thereon annually, and secure the payment thereof by good and sufficient mortgages or other satisfactory collateral security. “ And the said Charles E. Bowers and Stephen Titcomb do, in consideration of the premises and of one dollar paid them by the said John Heard, by these presents, covenant, promise, and agree with the said John Heard, that if they, the said Charles E. and Stephen, shall decline to make the said purchase of said land as aforesaid, and at the price aforesaid, or shall fail or neglect to give said Heard notice thereof as aforesaid, or shall fail or neglect to make the payments therefor as aforesaid, and keep and perform their several covenants, promises, and agreements in that behalf, that they, the said Charles E. and Stephen, will pay to the said Heard, the sum of three hundred dollars. To the true and faithful performance of each and every the covenants, promises and agreements aforesaid each of the said parties binds himself to the other, his executors, administrators and assigns, in the sum of one thousand dollars, as liquidated damages agreed upon between the said parties for the breach of either of the said covenants aforesaid.”</p> <p>The breach of covenant declared on was the failure of the defendants to give notice, before the 20th of August, of their election to purchase or not to purchase.</p> <p>At the March term 1838 the defendants were defaulted, and the damages were to be assessed by the Court, upon the construction to be given to the terms of the agreement.</p> <p>At the November term 1838, the plaintiff contended that he was entitled to recover the sum of $1000 as the liquidated damages for the breach of the agreement.</p> <p>The defendants denied that the damages were liquidated, and alleged that the sum of $300 was the true measure, if the plaintiff was entitled to recover more than a nominal amount ; but they insisted that a nominal amount was all that he was entitled to recover.</p> <p>If the defendants could be allowed to introduce testimony at this stage of the case, it was admitted, for the purpose of this hearing, that they could now prove that the proprietors of the township did, by a vote' of a major part, passed about two years before the 28th of March, 1835, authorize their agent, residing on or near the township, to sell lots to actual settlers ; and that previous to that day the agent had contracted to sell to Moses Merrill, a settler, one lot containing about 100 acres, and afterwards, on the 5th of August, 1835, executed a deed of the same to Merrill; that they could also prove that the plaintiff was the proprietor of a quarter part of the township ; but it was conceded that the plaintiff had no knowledge of the contract for the sale to Merrill, except what might be inferred from the proprietors’ books, (which, if such evidence could now be introduced, were to be in the case,) or of the making of the deed to Merrill, until February 1839 ; and that the defendants had no knowledge thereof until after this suit was brought, nor any knowledge that the proprietors of the township had been organized or held any meetings as proprietors, unless such inference can be drawn from the agreement in question.</p>

<p>This was an action against the defendant as a deputy of the sheriff of Suffolk, for a false return and not paying over money collected on execution.</p> <p>On a case stated it appeared, that on the 2d of December, 1833, a writ was sued out in favor of Benjamin Haynes, against Charles Haynes,' on which a large amount of property was attached and several persons were summoned as trustees. The writ was returnable and duly returned at the January term, 1834, of the Court of Common Pleas for the county of Suffolk.</p> <p>The plaintiffs in the present action, being creditors of Charles Haynes, sued out writs against him returnable at the same term, on which the same property was attached and the same trustees summoned, and by virtue of St. 1823, c. 142, the present plaintiffs appeared and defended in the suit of B. Haynes against C. Haynes, and it was continued from time to time until the October term, 1834, of the Common Pleas, when judgment was rendered in favor of C. Haynes, on a feigned demurrer signed by the counsel for each party, for costs of suit. An entry was made on the docket, that B. Haynes appealed from the judgment to this Court, and recognized to prosecute his appeal at the November term then next ensuing, but he omitted to enter the action at that term. B. Haynes did not appear, either by himself or his attorney, to claim the appeal, or to recognize to prosecute it, nor was any such recognizance offered ; but the appeal was entered and the recognizance taken by the clerk, upon an inspection of the feigned demurrer, as is the frequent practice in his office.</p> <p>Before the close of the November term the counsel for the present plaintiffs, who appeared for C. Haynes, notified the counsel of B. Haynes of the non-entry of the action in this Court, and was informed by him that he did not think the action properly terminated in the Common Pleas, inasmuch as all the trustees had not appeared and filed their answers, and judgment had not been rendered upon the answers of some who had appeared; to which the counsel for the present plaintiffs replied, that in his opinion the action was terminated in the Common Pleas by the judgment, and the attachment would be dissolved if the action were not entered in the Supreme Judicial Court at the November term.</p> <p>At the January term 1835, of the Common Pleas, the chief justice of that court, on the application of the counsel of B. Haynes and against the written remonstrance of the present plaintiffs, ordered the action of B. Haynes against C. Haynes to be brought forward and restored to the docket of that court; which was done accordingly, and the action was continued under the general order, that all matters not acted upon should be continued to the next term.</p> <p>At the July term, 1836, of the Common Pleas, the trustees having been all charged or discharged, judgment was again rendered in favor of C. Haynes, upon the same demurrer. B. Haynes appealed and entered liis- action in this Court at the November term 1836, and took judgment for $7423 damages, no one appearing for C. Haynes.</p> <p>Due notice was given to the defendant in the present action, not to pay over, on the execution issued in favor of B. Haynes, the proceeds of the property attached, but he nevertheless did, on receiving a bond of indemnity, pay on that execution the sum of $ 1920-83, being a part of those proceeds.</p> <p>The present plaintiffs subsequently recovered judgment against C. Haynes for $ 1971-49 damages, and their execution was duly delivered to the present defendant, and payment thereof was demanded of him on the 2d of September, 1837, but it was returned wholly unsatisfied.</p> <p>The plaintiffs contend, that the attachment in' the suit of B. Haynes was dissolved by reason of his appeal not being entered in this Court at the November term, 1834.</p> <p>The defendant is prepared to prove, if the Court shall deem the evidence competent, that S. D. Parker, the attorney of B. Haynes, and who appears by the record of the Common Pleas to have recognized as surety on the appeal in 1834, gave previous notice to the clerk not to use his name for such purpose.</p> <p>The present plaintiffs, defending as subsequent attaching creditors in the suit of B. Haynes against C. Haynes, presented at the March term 1835, of this Court, a petition for the affirmation of the first judgment of the Common Pleas; which petition was dismissed.</p> <p>If this Court should be of opinion, that the attachment in the suit of B. Haynes was dissolved, the plaintiffs were to have judgment for the abovementioned sum of $ 1920-83, and such additional damages, if any, as they were by law entitled to, and costs.</p>

<p>Where the holder of two promissory notes made by the same person, commenced an action upon one of them, and after receiving money sufficient to pay it, from the sale of property assigned as collateral security for the notes, continued to prosecute the action and forebore to sue on the other note, which had become payable before the money was received, it was held, that in the absence of any appropriation by the maker, the holder would be deemed to have applied the money in payment of such other note.</p> <p>Where, after a note was made, but before it was payable, the holder, for a good consideration, agreed verbally that he would not consider it as due, till the expiration of two months from the time of its original maturity, it was held, that such agreement, being executory, was not a bar to an action commenced on the note by such holder before the two months had expired.</p>

<p>A bill in equity was brought in the county of Suffolk, on July 7th, 1838, by the Atlas bank against the Nahant bank, alleging that the Nahant bank was incorporated on the 22d of March, 1833, (by St. 1833, c. 144,) and went into operation ; that on the 19th of April, 1837, the act of incorporation was repealed, (by St. 1837, c. 214,) and the charter was annulled, within the meaning of Revised Stat. c. 44, § 7 ; that before the annulling of the charter and up to the time of filing this bill, the Nahant bank was indebted to the plaintiffs in the sum of more than $ 64,000 ; that the plaintiffs have been informed and believe, that the president, directors and company of the Nahant bank unjustly and unnecessarily delay the settlement of the affairs of the bank, and neglect and refuse to make such appropriation of the funds of the bank as justice and equity require, and that measures are about to be taken by the managers of the bank, which will operate unjustly and fraudulently on the plaintiffs and some of the other creditors of the bank ; that the bank is insolvent; and that some of the managers are interested m its funds as creditors, and propose to make such a disposition of the property of the bank as will most favor themselves and the interest of their particular friends. And the bill prays that receivers may be appointed to take charge of the effects of the Nahant bank, according to the provisions of Revised Stat. c. 44, § S ; and that the Nahant bank and all its agents, directors and managers, may be restrained by injunction from interfering with or managing the affairs of the bank.</p> <p>A petition was afterwards presented to this Court, while sitting in the county of Essex, by Theophilus Parsons, Francis B. Crowninshield and Charles B. Goodrich, reciting that the bill in equity above mentioned had been ‘filed, that the injunction as prayed for was issued on the 9th of the same July, and served on the 10th, and that on the 15th of August then next these petitioners were appointed to be receivers of tne Nahant bank and took upon themselves that trust; and tne petitioners allege that it is their duty, as such receivers, to collect the debts due to the bank, and to sell and convert into money the other assets of the bank and apply the proceeds to the payment of the debts due to the creditors of the bank, and that the bank is possessed of certain real estate and "personal property which it will be necessary to sell, to pay the creditors of the bank, and that all the assets of the bank will be insufficient to pay the debts of the bank ; but that certain persons claiming to be creditors of the bank, to wit, Asa Pingree and others named, (some of whom lived in the county of Essex,) have since the issuing of the injunction and before the appointment of the receivers, caused the real and personal estate of the bank, and its goods, effects and credits in the hands of sundry persons, to be attached on divers writs by them purchased respectively against the bank, upon which writs suits are still pending, by means whereof the petitioners are prevented from selling the real property of the bank and from collecting the debts due to the hank from the persons summoned as trustees ; that the order appointing the receivers ought to give to them, by relation to the time of issuing the injunction, and from and after that time, complete and undisturbed possession of all the real and personal estate, goods, effects and credits of the bank, free from all liens to be thereafter acquired by which any one creditor might be preferred to the rest, and as the president and directors of the bank were, by the injunction, prohibited from paying the debts of the bank, so all the credit ors thereof might and ought to have been restrained from attaching any of the property of the bank, and ought now to be restrained from causing any part thereof to be seized, set off or sold on execution ; and to enable the petitioners to apply the property ratably to the payment of all the debts of the bank, the attachments ought now to be dissolved, and all the creditors to be further enjoined from making any attachment upon any of the property : Wherefore the petitioners pray the Court to make an order dissolving the attachments before mentioned, and to grant a writ of injunction restraining Pingree and others before named, and all other creditors of the bank, from making any attachments upon the real or personal estate, goods, effects or credits of the bank, and from seizing, selling or setting off the same or any part thereof on execution.</p> <p>The case upon the petition was continued for a hearing to be had in the county of Suffolk.</p>

<p>Assumpsit for the services of Robert Bishop, the p!« $1 tiff’s minor son, on board the whale-ship Ann Alexander, ot New Bedford, of which the defendant was master.</p> <p>At the trial, before Putnam J., it appeared that the minor, .being in the plaintiff’s servicé, and living with him, was without his consent or knowledge, received on board the ship ; that the son signed the shipping articles ; that the defendant knew that he was under twenty-one years of age, hut was probably deceived by a false representation that he had his father’s consent to his shipment; that he performed his duty as one of the crew, for more than three years ; that he left the ship at Talcahuana, on her return voyage; and that there was a balance due to him, provided his leaving the ship did not amount to a forfeiture thereof.</p> <p>The defendant objected, that in voyages of this nature, the ship-owner, and not the master, is responsible for the compensation of the crew, and that this action could not be maintained against the defendant.</p> <p>The jury found that the minor deserted the ship at Talcahuana without intending to return, and that he was not justified in so doing by any ill usage or danger of life and limb. This was received by the judge as a verdict for the defendant.</p> <p>The plaintiff moved the Court that the verdict should be set aside and a new trial granted.</p>

<p>The plaintiff A. and the defendant E. became jointly and equally interested in the purchase of large tracts of timber land in Maine, and A., being unable to pay Ilia moiety of the purchase money, conveyed all his interest in the land to E., and E. subsequently gave him a bond with condition, that if A. should at any time within five years repay E. a moiety of all such moneys as E. should pay on account of the lands and on contracts for procuring timber therefrom, with interest, and “ of all other expenses, disbursements, taxes, costs, charges and other payments whatsoever, which E. should pay for or in relation to ail and every or any of the premises, including all reasonable charges of interest upon any such payments as he should make in relation thereto,99 and if A. should also give E. a bond, with sureties, to pay a moiety of the moneys then remaining to be paid, E. would then convey to A. a moiety of E.9s right, title and interest in the lands and in the contracts relating to them, and a moiety of the net proceeds of sales of the lands and timber. A. assigned this bond in trust for the payment of his debts and for the reconveyance to him of the surplus of the property which should remain in the assignees9 hands. After the conveyance by A. to E., A. devoted his time and labor to the felling of timber from the lands. There was no direct evidence that E. had employed him as his agent for that purpose, but in E.9s answer to a bill in equity brought by A. and his assignees, to compel a specific performance of the bond, E. admitted that A. had rendered an account of his claim for services, and E averred that a sum less than the amount claimed would be a sufficient compensation for A.9s services. During the time that A. acted as such agent, he had scarcely any means of supporting himself and his family except what he derived from E. Upon such bill in equity it was held, that after A.9s conveyance to E., A. had no interest in theland, legal or equitable, and that E. was not a trustee of the lands for A.; wherefore A. was entitled to a reasonable compensation for his services.</p> <p>Held also, that notwithstanding the assignment, A. was entitled to have such claim allowed, either for his own benefit or that of his creditors.</p> <p>Held also, that A. ought to bear a moiety of any loss in the transactions, sustained by accident and without any want of care and caution on the part of E.; but that the loss of a large bank bill, remitted by E., in a letter sent by mail, from this State to a person in Maine, who declined to take the risk of that mode of remitting, must be borne wholly by E., as he had not exercised a proper degree of caution. field also, that E. was not entitled to compensation for his services in raising money and advancing his own funds to make the payments, he being the absolute owner of the property, and being under a mere personal obligation to convey to A., and there being m the bond no stipulation for feuch compensation.</p> <p>Held also, that E. was not to be allowed interest beyond the legal rate, on his own funds advanced to make the payments, whatever might be the market rate for the loan of money at the time; but that if he was obliged to pay extra interest to raise money for that purpose, it ought to be allowed him, provided it was reasonable; if however he liad used the proceeds of the lands for his private use, this should be taken into consideration.</p>

<p>Bill in equity. The suit was commenced by Bryant and tni'pe others, copartners under the firm of Bryant, Sturgis & Co., against Charles Russell, (surviving partner of John S. Russell, formerly merchants doing business at New Bedford, in the county of Bristol, under the firm of Charles Russell & Son,) Joseph Ricketson, John A. Parker, Joseph Grinnell and William Rodman, all of New Bedford, and the Bedford Commercial, the Marine, the Merchants’, and the Mechanics’ banks, in New Bedford.</p> <p>The bill alleges, that Charles Russell & Son, on the 9th of September, 1833, drew two bills of exchange on Robinson, Tyson & Co., each for $3000, payable, the one in six and the other in seven months after the date, to Benjamin Mumford ; that the drawees accepted the bills on the 9th of No vember, 1833, and on the same day Mumford indorsed them to the plaintiffs ; that payment was demanded of the drawees when the bills respectively became due, and was refused, and notice thereof was given to Charles Russell, his partner Johi S. Russell having deceased before that time ; and that the bills remain unpaid.</p> <p>The bill further alleges, that the Russells, on or about the 26th of December, 1833, granted and conveyed to Ricketson, Parker, Grinnell and Rodman, jointly and severally, di.vers parcels of land, ships and merchandise, of the value of $128,000 and upwards ; in consideration whereof the grantees gave to the Russells their joint promissory notes, dated the 28th of December, payable in six months from the date, one for $38,851-86, payable at the Bedford Commercial bank, another for $38,851-86, payable at the Merchants’ bank, another for $29,138-90, payable at the Marine bank, and another for $ 19,425-94, payable at the Mechanics’ bank, (amounting in all to $ 126,268-56 ;) it being provided however, in each of these notes, that if it should thereafter appear that any incumbrance was then existing upon any portion of the real ot personal property, conveyed to the promisors, a certain specified proportion of the amount of such incumbrance should be ..ldorsed upon each of the notes</p> <p>It further alleges, that the Russells were indebted to Robinson, Tyson & Co. in the sum of $10,000, and to divers other persons upon divers notes, drafts and acceptances, all which they were desirous to provide for and discharge, and for this purpose they, on or about the 28th of December, 1833, indorsed the four notes above specified and deposited them respectively in the banks at which they were payable, and em powered the banks respectively to collect and receive the amount of those notes ; and that the banks entered into certain covenants with the Russells, by an instrument under seal, dated the 28th of December, 1833, and which the plaintiffs pray may be produced and exhibited.</p> <p>This agreement made by the Russells, of the first part, and the banks, by their attorney, Charles H. Warren, of the second part, recites the making of the four promissory notes by Ricketson and others, and that the Russells are indebted to Robinson, Tyson & Co. in the sum of $ 10,000, and to other persons upon notes, drafts, and acceptances, a schedule of which is annexed to the instrument, and that the several banks have agreed to receive of the Russells the four notes given to them by Ricketson and others, and thereupon to pay, take up and discharge the several notes, drafts and acceptances in the schedule contained, in the manner and proportions afterward mentioned, and to pay Robinson, Tyson & Co. the sum of $ 10,000, due to them as before mentioned, and that the Russells agree that the four notes shall be indorsed respectively to the four banks. And this instrument contains the following provisions : “ And the said parties of the second part do on their part agree to and with the said Charles Russell and John S. Russell and their assigns, that they will pay to the said Robinson, Tyson & Company, the said sum of $ 10,000, so due to them as aforesaid, and that they will pay, take up and discharge all the said notes, drafts and acceptances in the said schedule mentioned, at the time they shall become due and payable respectively, provided no indorsement shall be made on the said notes of the said Ricketson, Parker, Grinnell and Rodman, by reason or on account of any existing incumbrance upon the property before referred to ; and if such indorsement should be mad°, the said parties of the second part agree that they will pay, take up and discharge the said several notes, drafts and acceptances, in said schedule mentioned, excepting such an amount of them as shall equal the amount of such indorsement. And whereas it is possible that the said banks, or some of them, may now hold drafts or notes upon which the said Charles Russell and John S. Russell, or one of them, are promisors or acceptors, which have been unintentionally omitted in the said schedule, it is agreed and declared to be the true meaning and intent of these presents, that the said bank or banks holding such notes or drafts are, in the first instance, to receive the amount due upon the said notes or drafts; and that the amount of the said notes or drafts is to be deducted from the sum to be paid upon the notes, drafts and acceptances in said schedule mentioned by the said parties of the second part.” Then follows a clause by which it is provided, that all advances and payments to be made by the banks shall be m the proportion of the amounts of the four notes of Ricketson and others held by them respectively. The notes and drafts contained in the schedule, together with the sum of $ 10,000, to be paid to Robinson, Tyson & Co., amount to $ 126,268-56, being equal to the amount of the four notes of Ricketson and others.</p> <p>The bill then alleges, that by means of the doings of the defendants or some of them, a trust has been created in favor of the plaintiffs, to have and receive from the banks the amount of the two bills of exchange before described, held by the plaintiffs, which two bills were intended to be and are contained in the schedule annexed to the agreement above mentioned, though by accident and mistake the same are not accurately described as to the dates and term of credit thereof; and that payment thereof has been demanded of the banks, but by them refused.</p> <p>The bill prays that the defendants may answer, &c ; and that the banks may be compelled to pay the plaintiffs the amount of these two bills of exchange, or such part thereof as shall be found due, in proportion with all the other creditors of Charles Russell & Son, whose demands were provided for by the trust instrument between the Rus sells and the banks ; and that the plaintiffs may have such other relief, &c.</p> <p>Charles Russell, in his answer, says that he and his son con reyed to Ricketson and others, on the 26th and 27th of December, 1833, real and personal property, as stated in the bill, which was estimated by the parties to be of the value of $ 177,650 ; that in consideration thereof, Ricketson and others made their four promissory notes, as above described, and a bond, dated the 28th óf December, 1833, with condition that they will sell and dispose of the property conveyed, and If, from the sales, they shall realize more than $ 126,276‘35, with interest, after deducting all expenses, they will pay to the banks whatever sums may then be due to the banks or either of them, by the Russells or either of them, as sureties or in dorsers for any person or persons, if the excess shall be sufficient for that purpose, or if it shall not be sufficient, that they will pay to the banks the excess in proportion to the said several demands, and that they will pay over to the Russells or their assigns, all such money as may remain after the payments to the banks, and will retransfer and reconvey to the Russells any portion of the property which may remain unsold. The respondent further says, that the Russells were indebted upon divers'noles and drafts, and that on or about the 28th of December, 1833, they indorsed the four notes of Ricketson and others to the banks, and entered into the agreement with the banks, as set forth in the bill, for the purpose of paying their said notes and drafts as the same should become due and payable. He further says, that Russell & Son drew the two bills of exchange held by the plaintiffs, and that notice was given to the .respondent of the drawees’ refusal to pay the same ; and that these bills were intended to be, and are, contained in the schedule annexed to the agreement made by the banks with the Russells, though by accident and mistake the same are not accurately described therein as to the dates and terms of credit.</p> <p>The other defendants filed a joint and several answer, in which they state that they do not know whether the two bills of exchange were drawn &c. as set forth in the bill. They admit that the Russells, by deeds and bills of sale dated the 26th and 27th of December, 1833, conveyed to Ricketson and others certain real and personal estate ; but the individual respondents denj , and the banks believe the denial to be true, that the property was of the value of $ 128,000. They admit the making of the four notes by Ricketson and others, and that they were indorsed and deposited in the banks. They admit that an instrument in writing under seal, as above set forth, was made between the Russells and the banks. They deny that the two bills of exchange held by the plaintiffs were contained m the schedule annexed to that instrument; and they say they do not know whether they were intended to be contained in it. They allege that the property conveyed to Ricketson and othr ers was subject to divers incumbrances ; that the lot and house in Water street, New Bedford, was subject to a mortgage (to Abraham Kirby) for $ 3000 ; that all the real estate was subject to the taxes laid thereon for the year 1833 ; that a part or all of the real estate was under attachments made by certain creditors of Charles Russell; that the Russells were not the owners of five eighths of the ship South Carolina, as stated in the assignment, but of four eighths only ; nor of twenty-nine thirty-second parrs of the ship Martha, but of twenty-five only ; that the intended mortgage of the Washington Iron works, at Wareham, in the county of Plymouth, supposed to be of the value of $20,000, has, by reason of the lien thereupon claimed by the copartners of Charles Russell, who with him were joint owners thereof, for the payment of the debts of that co partnership and other causes, been ascertained to be of no value ; that the mortgage made by Weeden to Charles Russell, purporting and supposed to be of the value of $2700, has been ascertained to be of the value of $1200 only; by means of all which there was a corresponding failure of the consideration for which the four notes of Ricketson and others were given; and the respondents allege that these hens, attachments, mortgages, deficiencies in title and in value, should be considered as “incumbrances,” within the meaning of the proviso on the four notes, and that Ricketson and others have, by their notes in writing of the 6th of April, 1834, and 12th of January, 1835, required the banks to indorse on those notes the sums of $23,000, and $16,998-32, on account of such incumbrances ; which sums, amounting to $39,998-32, together with such further sums as it shall appear proper to indorse, the banks say they ought not to pay.</p> <p>The banks say, that in a schedule, marked B, they have set forth the demands they have paid, amounting to $ 54,615-33. The respondents further say, that at the time of the conveyances to Ricketson and others, and of the execution of their bond to the Russells, it was the intent of the parties, that the grantees should be held to pay no further or greater sums of money than should be eventually realized from the proceeds of the property ; and that in pursuance of that intent, and after those notes had been indorsed to the banks, to wit, on the 4th of January, 1834, an agreement under seal was made, between the banks of the one part, and Ricketson, Parker, Grinnell and Rodman, of the other part, with the knowledge and consent of the Russells, whereby Ricketson and others covenanted to pay over to the banks, as fast as received, the proceeds of sales of the property conveyed, to be applied to the payment of the four notes, and the banks covenanted that they would not at any time demand of Ricketson and others, on account of the four notes, a greater amount than should have been at such time actually received by them from the sales, deducting the necessary expenses of managing the property. The respondents say that these contracts were made for the benefit of the Russells, and with no intent to enter into any contract with creditors, or for their benefit, except so far as it was for the benefit of the creditors, to' enable the Russells to pay their debts, as the same should become due ; that they had no expectation of profit or benefit to themselves, except that they thus secured the payment of debts due from the Russells to the banks ; and that at the time when the negotiations between the Russells and Ricketson and others were pending, preparatory to entering into the arrangement between them, the Russells exhibited a schedule of the parcels of property ntended to be conveyed, and of their respective values, amounting to $ 177,650, and that the same schedule was delivered to the banks at the time of their entering into the agreement with the Russells, and the respondents were informed and believed that .the property conveyed was of much greater value than the amount of the four notes, otherwise they would not have entered into the arrangement; that the grantees have met with great embarrassments in selling the property, by .reason of defects of title, &c. so that the proceeds have not been received as was anticipated at the time of the conveyance ; but nevertheless the banks have advanced the sums necessary for the payment of several notes, bills of exchange and debts specified, being a large portion of those mentioned in the schedule annexed to their agreement, to be paid as they should become due, and by reason thereof a large sum is due to the banks for interest; which, with the amount of the notes, bills and acceptances discounted and held by the banks, and of those paid by the banks, make the sum of 0 96,504-45 ; that the respondents believe that the net proceeds of all the property will not be sufficient to reimburse the banks the money already paid by them.</p> <p>The respondents deny that any contract, agreement or trust has arisen or been created, by reason whereof the plaintiffs have any right to demand or receive from the banks the sums of money alleged to be due to the plaintiffs, or that the respondents, or either of them, are under any accountability to the plaintiffs.</p> <p>In a supplemental answer the defendants exhibited an account, by which it appeared that the property sold amounted to 0 87,120-02, and the property unsold, to 0 19,259, making together 0 106,379-02; and that the payments made by, and the sums due to the banks, amounted to 0 102,002-25.</p> <p>On a hearing upon the bill and answer, C. P. Curtis con tended, that the Court had equity jurisdiction in this case, under St. 1817, c. 87, on the ground that the sealed instrument executed by the banks created a trust in favor of the creditors named in the schedule annexed to that instrument. Had it been a parol contract, the plaintiffs could have maintained an action at law against the banks ; Hall v. Marston, 17 Mass. R. 575 ; but being under seal, a bill in equity is their proper remedy. 1. Chit. Pl. 2, 3, 4 ; Gregory v. Williams, 3 Meriv. 582 ; Ward v. Lewis, 4 Pick. 523 ; New England Bank v. Lewis, 8 Pick. 113; Cumberland v. Codrington, 3 Johrs. Ch. R. 261; Shepherd v. M'Evers, 4 Johns. Ch. R. 137.</p>