Volume 41 — Massachusetts Reports

<p>Under a policy of insurance on a vessel from a foreign port “ to a port of discharge in the United"States,” she may put into a port in the United Stales to inquire for a market, and may proceed thence to another port in the United States for the purpose of discharging her cargo.</p> <p>A vessel insured from the. West Indies “ to a port of discharge in the United States,” sailed from the West Indies for Savannah, for the purpose of there disposing of her cargo, and on her passage sustained some damage. She did not however discharge any part of her cargo at Savannah, hut after inquiring into the state of the markets and procuring some icpairs and supplies, staying only a reasonable time P»r those purposes, she sailed for Boston as a port of discharge. It was held, that she was protected by the policy on her passage from Savannah for Boston.</p> <p>The vessel having taken on board at Savannah a deck load of cotton, on freight, for Boston, it was held, that this did not discharge the liability of the underwriters, provided it did not cause any delay in the voyage or any increase of risk.</p> <p>It was held, that a general usage for the same species of vessels, in various kinds of navigation and in different seasons of the year, to carry deck loads, was competent evidence, in connexion with the opinions of nautical witnesses, to show that in fact the risk was not increased by carrying the cotton on deck.</p> <p>It was held, that in determining the effect of taking the deck load of cotton, the proper question for the jury to consider was, whether on the whole the risk was increased upon a balance of the advantages and disadvantages of that proceeding.</p>

<p>The written return of tiie officer on a writ, is competent evidence to prove an attachment of property, notwithstanding the writ may have never been returned to the court to which it was returnable.</p> <p>Certain beer pumps in the custody of H. were attached as the property of W., and were delivered by the officer to H. for safe keeping. In the absence of H. they were taken away by W. and a person who claimed them as his property. H. thereupon made a complaint against W., charging him with stealing the pumps. In an action brought by W. against H. for a malicious prosecution, H. gave in evidence a card which liad been posted tip at his place of business, and had beeit seen there by W., if not put up by him, advertising that W. made and sold beer pumps. It was held, that this card, though inadmissible as evidence of the ownership of the pumps attached, was nevertheless evidence of probable cause for making the complaint, it having some tendency, though very slight, to induce the defendant to believe chat the plaintiff was the owner.</p>

<p>The signers of a contract in writing agreed therein to take an interest m a voyage, in specified proportions, and appointed P. and C (two of their number) their agents to fit out the vessel and manage the business of the voyage in this country, and ratified the purchase already made by them of the vessel, and gave them full authority to purchase a suitable cargo, and agreed that they should charge a certain commission on the amount of invoice and outfits, and on ail returns, but none on the purchase or sale of the vessel. It seem, that the agents had authority to make purchases separately.</p> <p>It seems also, that one who signed the contract after all the purchases liad been made, thereby took an interest as an original purchaser, by a ratification of the acts of his associates.</p> <p>It seems also, that the associates were tenants in common of the vessel and cargo, and not partners.</p> <p>One of the agents having purchased goods for the voyage, and given therefor his own negotiable note, the vendor knowing at the time when the goods were delivered and the note taken, but not at the time of the sale, that other persons were interested in the purchase, it was' held, that whether such other persons were partners or tenants in common with the agent, they were all originally liable to the vendor, but that the negotiable note of the agent was a payment, and so the others were discharged from their liability.</p> <p>In an action against the parties concerned in the voyage, brought by one of the vendors of the goods frr the use of himself and other vendors, upon several notes given by the agent, of one of which notes the plaintiff was the payee, and of the others the indorsee, it was held9 that the payees of such other notes were competent witnesses on the part of the defendants, and compellable to testify, on the question whether at the time when the notes were taken, the plaintiff and the other vendors had knowledge that other persons, besides the agent, were interested in the purchases of the goods.</p>

<p>tioods found derelict at sea were brought into the port where the owners lived, and deposited in the custom-house, subject to the payment of duties ; and the master of the ship in which they were brought into port, entered them in his manifest as consigned to the plaintiff-. The defendants, as agents of the owners, entered the goods and paid the duties upon them, and obtained a permit for their delivery, but they were detained in the custom-house until a charge, for the storage should be paid ; and in the mean time the plaintiffs brought an action of replevin for them against the defendants. The goods were nexer removed from the custom-house by the plaintiffs or the defendants, Imt remained thereuntil sold on admiralty process at tlie suit of the salvors. To the action of replevin the defendants pleaded non cepit and that the property was not in the plaintiffs. It was held, that the master had no authority to consign the goods to the plaintiffs, and that in fact the evidence did not prove such a consignment, nor any special property in the plaintiffs , that the defendants’ pleas xvere supported by the evidence ; and that the defendants were entitled to a judgment for their costs, but not fur a return of the goods.</p>

<p>In an action by the owner against the purchaser, to recover the price of a ship winch got ashore on a foreign coast and was sold by auction by the master under circumstances justifying a sale, the defendant offered in evidence two letters, in the handwriting of the master and addressed to the defendant, one dated the day before the sale, requesting the defendant to bid the vessel in for the benefit of all concerned, provided no one should bid higher than a certain sum, the other dated on the day of the sale, requesting die defendant to attempt to get the vessel off and save the materials. The defendant attempted, but without success, to get the vessel off. It was held, that the letters were admissible in evidence against the plaintiff, being apparently the declarations of an agent while executing his agency and acting within the scope of his authority, and that the burden was on the plaintiff to show that the purchase was in fact made for the defendant’s own benefit and the letters fraudulently fabricated after the defendant had found it impracticable to save the vessel. Declarations of the master made after the sale and while the defendant was at the wreck, as to the loss being the defendant’s in case the vessel should not be got off, and as to the defendant’s applying to the master, after his return from the wreck, to be released from die purchase, were held not to be a part of the res gesta, and therefore inadmissible in evidence.</p> <p>A deposition taken in a foreign country under a commission, but returned to court unaccompanied by the commission and interrogatories, was held to be inadmissible in evidence.</p> <p>The drawing of an order by the master, after his return home to the port where the owner lived, upon the defendant, to pay over to a third person, for the benefit of whom it might concern, a balance of die proceeds of materials from the wreck, saved and sold by the defendant, was held to be within the scope of the master’s agency and before the agency had terminated, and therefore admissible in evidence against the owner.</p>

<p>A debtor being about to leave the country, wrote a letter to the plaintiffs, his credit ors, requesting them to settle certain accounts for him as for themselves, including an adventure of coffee shipped by him to Smyrna, and to pass the proceeds to his credit, and should there be any balance due to him, to pay the same to G. & J. B. T. ; and the plaintiffs, on the same day, wrote an answer acceding to the proposition ; the debtor also procured the guaranty of a third person to the plaintiffs, that the coffee should net a certain sum ; effected insurance upon it, payable to the plaintiffs j indorsed in blank the bill of lading, and delivered it to the plaintiffs, by which bill of lading, however, the coffee was deliverable to a consignee in Smyrna or his assignee ; and wrote to the consignee to remit the proceeds of the coffee to the plaintiffs, and to be governed by their directions in case they should vary the orders already given. The consignee sold the coffee and invested the proceeds in opium, which he sent, together with the invoice and bill of lading, addressed to the debtor ; and upon the arrival of the opium the plaintiffs entered it and paid the duties, and in five days afterward, and while it remained in the custom-house stores, it was attached at the suit of G. Sc J. B. T. It was held, thav the property was sold to the plaintiffs, and that they were not guilty of laches in respect to taking possession ; and an action of replevin, brought by them against the attaching officer, was sustained.</p>

<p>A corporation cannot surrender its charter without some solemn act of the corporation for that purpose ; and a surrender will not be of any avail until accepted by the government.</p> <p>Where a manufacturing corporation became insolvent and assigned all its property to trustees for the payment of its debts, and the instrument of assignment contained covenants that the assignees might use the name of the corporation for the collection of debts and the distribution of the property assigned, and that the corporation would perform any further acts which might be required to enable the assignees fully to execute their trust; and the corporation omitted, for several years, to choose officers or hold meetings, the by-laws however providing that the officers (though chosen for one year) should continue in office till others should be chosen in their stead ; it was held, that the corporation had not been dissolved.</p> <p>Where, in an action by a corporation upon a promissory note, the defendant pleaded in abatement, that there was no such corporation as was in the writ supposed, and issue was joined upon that fact, the defendant was not permitted, on the trial before the jury, to allege and prove, in reference to the damages, that there was no consideration for the note, the judgment against the defendant being peremptory in case of his failing to support his plea in abatement.</p>

<p>A paper belonging to the files of the court cannot regularly be withdrawn from the clerk’s office without the permission of the court.</p> <p>Where an action brought upon a promissory note was tried upon the merits and a verdict and judgment rendered against the plaintiff, and the note was given in evidence and of course placed on the files of the court, and another action was brought upon the same note hy the same plaintiff against the same defendant, it was held, that the plaintiff ought not to have permission to take the note from (lie files in order to use it as evidence in support of his second action.</p> <p>A judgment in a former action between the same parties and for the same cause ot action, is admissible in evidence under the general issue.</p> <p>If, in an action brought against one of two joint promisors, the non-joinder of the other promisor is not pleaded in abatement, but the case is tried on the merits and judgment is rendered against the plaintiff, and another action for the same cause of action is brought by the same plaintiff against the two promisors, the parties in the two actions are, within the rule of law, the same.</p> <p>The same principles were held to apply to the following case : — The two actions were upon a note indorsed to the plaintiff in blank and declared on by him as indorsee, but at the trial of the first action he filled up the blank so as to make the note payable to him as agent of the payee ;, the defendant objected, in the first action, that the note, with the indorsement thus filled up, did not support the declaration, but it was admitted in evidence, and a verdict and judgment rendered against the plaintiff on the merits.</p>

<p>Assumpsit on a promissory note, dated May 11th, 1833, made by W. N. Spinney, for $250, payable to the plaintiff or his order, in six months, with interest. The defendant’s name was on the back of the note.</p> <p>The declaration contained counts against the defendant as an original promisor and as a guarantor.</p> <p>At the trial, before Wilde J., the plaintiff called his father as a witness, who testified that about the 10th of June, 1833, the plaintiff showed him the note and consulted him as to getting it discounted ; that the defendant’s name was then on the back of the note ; that the plaintiff’s name was not upon it a? that time ; and that the witness advised the plaintiff to put hie name under the defendant’s.</p> <p>The defendant admitted that proper demand and notice had been made and given, if in other respects he was liable.</p> <p>The defendant called one Gilbert; who testified that he dis- '' counted the note for the plaintiff; that at the time when he paid the money for the note, the names of the plaintiff and the defendant were on the back of it; that his impression was, that when the note was brought to him to be discounted, the plaintiff’s name was not on it, and he suggested to the plaintiff that he must put his name over the defendant’s, to make the note negotiable, which the plaintiff did.</p> <p>The defendant also read the deposition of Spinney ; which states, that the note in question, and another note, payable to the plaintiff, on demand, were made by the deponent at the same time ; that on the note now in suit the plaintiff wished the deponent to procure some other name ; that the deponent at first declined, but the plaintiff said he wanted to make use of this paper and wanted another name in order that be might get it discounted ; that the deponent then took this note to the defendant and asked him if he would put his name upon it, and the defendant said he had no objection, and accordingly wrote" his name upon it ; that the deponent then took it back to the plaintiff and gave it to him ; that the two notes were given as a bonus for the lease and fixtures of a store ; that at this time the deponent had been in possession of the store for twelve or fifteen days ; that the leases were executed and exchanged two or three days after the deponent had got into the store ; that the deponent had agreed to give the plaintiff $ 450 as a bonus before the leases were executed ; that the defendant had formerly indorsed as second indorser, notes signed by the deponent, and in several instances before the promisee had put his name on the note ; and that the defendant had never indorsed as first indorser, a note signed by the deponent.</p> <p>The plaintiff erased his name from the note, after he received it back from Gilbert.</p> <p>The defendant was defaulted, subject to the opinion of the Court.</p>

<p>This was assumpsit on a policy of insurance for $10,000, made by the defendants on the ship Antioch, for the plaintiffs, who were owners of one half of her.</p> <p>After all the evidence was put into the case, Wilde J., who sat at the trial, before he charged the jury, ordered that at the same time and on the same evidence, the case of one Adams, a part owner of the ship, against the same defendants, on another policy, should be submitted to the same jury. To this the defendants objected ; but they did not allege that they had any other material evidence applicable to the latter case ; and the depositions used had been taken by consent for both actions ; although their counsel were informed by the judge, that if they had any such evidence, or any'reason to offer why the two actions should be tried separately, their objection would be allowed ; but if the two causes depended on the same evidence, and the questions to be determined were in all respects the same, as they appeared to be, it would be more proper that both actions should be tried by the same jury, as the other jury, or some of them, might, from partially hearing the evidence or arguments on the first trial, receive impressions favorable or unfavorable to one or another of the parties, which they might not have received if they had heard the whole evidence and arguments in connexion.</p> <p>• The judge persisted in-the order, and the jury were charged in both cases at the same time ; and at the same time, in both cases, they returned verdicts lor the plaintiffs ; although the defendants persevered in their objection to the two cases going, under such circumstances, to the same jury.</p> <p>And because the two actions were so consolidated by order of the judge, and without the consent of the defendants, the defendants moved that the verdict in this case might be set-aside and a new trial granted.</p> <p>The defendants made the like motion in the action brought by Adams.</p>

<p>A deed of conveyance thirty years old, under which the grantee and his successors have held constant possession, is admissible in evidence without proof of its execution.</p> <p>A deed of land, bounding it<( on the sea or salt water,” was held to have conveyed the flats adjoining the upland described, although the use of the flats by the public, and the grantee’s own acts, tended to show that the grantee did not consider the fiats to be included in the deed.</p> <p>The devisee of vacant and unoccupied land has, by operation of law, without an entry, such a seisin as will enable him to maintain a writ of entry.</p> <p>Where the land devised, and of which the testator died seised, consisted of flats which were never enclosed, and of which no one had the exclusive occupation or claimed the ownership, but which were used by all persons, coming by land or water, who might have occasion to pass over them or to make some brief use of them by landing wood and other articles thereon, it was held to be vacant and unoccupied land, of which the devisee would acquire a seisin without an actual entry.</p> <p>The use of land on the sea-shore, by the individual inhabitants of a town, as a landing place, does not tend to show a possession by the town in its corporate capacity, but, on the contrary, is adverse to the claim of such a possession.</p> <p>The omission by the owner, to fence in a parcel of land or flats bounding on the sea or salt water, and the occasional use of it by all persons having occasion to land wood and other articles thereon, do not prove a dedication of it to the public.</p> <p>On a writ of entry to recovér such a parcel of land or flats, reputation as to the ownership is not admissible in evidence.</p>

<p>lit an action for a malicious prosecution, what facts and circumstances amount to probable cause, is a question of law ; whether they exist in the particular case, ie a question of fact.</p> <p>If all the facts which the evidence tends to prove, do not amount to probable cause, the question of probable cause is to be decided by the judge and not to be submitted to the jury.</p> <p>The want of probable cause is evidence of malice.</p> <p>Whether the trial and acquittal of a party charged with an offence, be primá facie evidence of want of probable cause, quare.</p>

This was an action on the case against the sheriff of Berkshire, for the default of John C. Hunt, one of his deputies. It appeared that Joseph and Aaron Hawley were partners in the business of purchasing goods in large quantities and selling them by retail. They failed in February 1829, and a number of writs were then sued out against them, and served by Hunt, returnable at June term 1829, of the Common Pleas, on which all their partnership property was attached.

<p>An indictment founded on St. 1834, c. 184, for a rescue of cattle, alleged that a field-driver took up the cattle in a town way, they not being under the care of a. keeper, and having them in his custody and being about to restrain them in the town pound for goingat large in the said highway without a keeper, the defendant rescued them. Held, that the allegations were not repugnant, highway being a general term in which town way is comprehended, and said highway necessarily referring to the town way before mentioned.</p> <p>An annual town meeting for the choice of town officers was held in March and adjourned to a day in April, and in the intervening period a statute was passed, repealing previous statutes relating to field-drivers, and enacting that at the annual meeting for the choice of town officers, in each town, two or more persons should be chosen for field-drivers. Held, that a field-driver chosen at such adjourned meeting in April was duly chosen.</p>

<p>A right of way of necessity is founded on an implied grant j and the same principle of necessity which raises the implication of one such way, may extend it to two or more ; but convenience alone is not sufficient to raise the implication of a way.</p>

<p>In the case of a grant by deed of the right to dig ore in the land of another, the mere neglect of the grantee, for forty years, to exercise the right, without any act of adverse enjoyment on the part of the owner of die land, will not extinguish such right ; and the occupation and cultivation of the land by die land owner during such period, are not evidence of adverse enjoyment of the right to dig the ore</p>

<p>Where a person acting as guardian of the plaintiff under a void appointment, agreed with the defendant that he would not enforce the plaintiff’s right of dower in land which had been conveyed to the defendant, and the defendant, in consideration thereof, gave the supposed guardian a note promising to pay him a certain sum annually during the plaintiff’s life, and the plaintiff, by such supposed guardian, brought an action on the note, it was held, that the defendant was not estopped to deny that, at the time when the action was brought, the plaintiff was not under the guardianship of the supposed guardian.</p> <p>But if the plaintiff, by herself or any authorized agent or guardian, should see fit to enforce the contract respecting her dower, it seems that the suit would be a ratification of the unauthorized act of the supposed guardian and the defendant would not be allowed to deny its validity.</p>

<p>In an action against assessors for causing the plaintiff to be arrested for the non payment of a tax, if the town records do not show that the defendants were duly sworn as assessors, parol evidence is admissible to prove the fact.</p>

<p>A testator, after the introductory words showing an intention to dispose of the whole of his property, devised to his wife the improvement of one third of all Ins lands in H., where he resided, so long as she should remain his widow, and one half of his personal estate, after the payment of debts and funeral charges, and then proceeded as follows : “ I give and bequeath unto my two sons, D. and E., in equal proportion, the whole of my lands and buildings lying and being within the town of H., excepting the improvement of one third of the same as heretofore provided j also, in equal proportion,” certain land in W. ; “ also the one half part of all my personal estate, in equal proportion, they paying such legacies as I shall hereby enjoin upon them to pay, also my just debts and funeral charges ; the aforesaid real and personal estate bequeathed to them, to be to them and their heirs forever. I give and bequeath unto my son J. $ ICO, to be paid to him within one year after my decease, in equal proportion, by my two sons, D. and E., the aforesaid sum, with what I have heretofore given him, to be his full proportion of my estate and the testator’s wife and D. and E. were appointed his executors. Several years afterwards he executed a codicil, which, after bequeathing to a grandson the sura of $ 30, to be paid him by D. and E. in equal proportions, proceeded as follows : u I give to D. and E. all my lands not enumerated in my said will, or which I have purchased since the date of my said will, in H. or elsewhere, in equal proportions, reserving to my beloved wife her right of dower in the same. And lastly, my will and meaning is, that this my present codicil be annexed to and made a part of my last will and testament, to all intents and purposes.” It appeared, that the will and codicil wei e drawn up by different persons, and that a portion of the testator’s land in H., at the time of the execution of the codicil, was uncultivated. It was held, that die land in H. purchased by die testator after the execution of the will, but before the codicil was executed, passed to D. and E. in fee, by virtue of the devise in the will, the execution of the codicil operating as a republication of the will and giving it effect as of the date of republication, and die description in the will, of the lands devised to them, being broad enough to embrace the whole of the testator’s estate there, whether acquired before or subsequently to die date of the will ; and further, that the devise of the after-purchased land in the codicil, was to be construed a devise in fee, because the legacy to the grandson was charged upon D. and E. personally, in respect to the land devised in the codicil.</p>

<p>In an action brought by the administrator of a mortgagee against the mortgagor to recover possession of land mortgaged to secure the payment of a promissory note, it is a good defence that the note was given without consideration ; and the demandant cannot rebut such defence, either by direct evidence showing that the note was also given with a view to defraud the creditors of the mortgagor, or by arguing to the jury, from other evidence in the cáse, that it was so given.</p>

<p>A bequest here to a foreign corporation is valid.</p> <p>A bequest for charitable uses to an unincorporated society may be enforced by virtue of St. 43 Miz. c. 4, if not independently of that statute, and whether such society transacts its business here or in another State.</p> <p>Bequest: —(t The residue of my personal property I give to my wife, with full power to do with it as she pleases, but whatever she may die possessed of, unless she should otherwise order, I would have equally divided to the several societies ” before named. The wife having died before the testator, it was held, that the bequest over took effect; but that it would have been ineffectual in case she had survived the testator.</p>

<p>Where three tenants in common of a parcel of land nearly in the form of a parallelogram, the east side being a little longer than the west, made a partition by deed by straight lines running from the east side to the west, and the monuments of the division were not to be found, but the divisions of the cast side were ascertained oy the measurements given, it was held, that the west side should be divided in the same proportions.</p>

<p>An act incorporating a part of a town into a separate town, provided that any per son who might have gained an inhabitancy within the part thus incorporated, and who should thereafter need to be supported as a poor person, should be supported by the new town. Held, that a pauper who had gained a settlement on that part of the territory which continued to be the old town, but had removed into the other part before it was incorporated as the new town, retained his settlement m the old town.</p>

Assumpsit for the amount expended by the plaintiffs for the support of one David Mahan. The only question in the case was whether Mahan had a legal settlement in Marlborough at the time when the support was furnished.

Assumpsit. The defendant pleaded á tender. The plaintiff replied a subsequent demand and .refusal. The defendant rejoined, denying a refusal; upon which issue was joined. In the Common Pleas it was agreed, that on the 10th of April, 1832, the defendant was indebted to the plaintiff in the sum of two dollars.

A complaint was made by Hammond, as clerk of a company of militia in the town of Charlton, against Dunbar, as a private in the company, for deficiency of military equipments on the 7th of May, 1833, to wit, of a knapsack, cartridges with balls, musket, and priming-wire and brush. On a hearing of the parties, on the 20th of September, 1833, before John Davis, a justice of the peace, the following facts were proved or admitted, subject to objections taken thereto.

<p>The Court refused to issue a certiorari to a justice of the peace by whom the petitioner had been fined, it appearing that in truth no injustice had been done, although the magistrate had received evidence which he ought to have rejected, decided some questions erroneously, and founded his opinions upon improper grounds.</p> <p>On a complaint against a member of a company in the militia, for neglect of duty, a roll of the company made out and signed by individuals as selectmen of the town to which the company belongs, (pursuant to St. 1825, c. 153,) is admissible in evidence, without proof that those individuals were in fact selectmen.</p> <p>On such a complaint, a letter of the adjutant-general, certifying that the company was without commissioned-officers, but not purporting to be a copy of any record or public document, was held to be inadmissible in evidence to prove the fact certified.</p> <p>If a company having no commissioned officer, elects some of its members as officers, whom the commander-in-chief refuses, whether rightfully or wrongfully, to commission, it is still without commissioned officers, so that it is incumbent on the colonel of the regiment to assume the immediate command of the company, pursuant to St. 1825, c. 153.</p> <p>A company, in which there was no commissioned officer, elected certain individuals as officers, whom the commander-in-chief, in a general order, refused to commission, but it did not appear that this general order-was communicated to the company j and a member of the company was warned to do duty “ in the company commanded by Col. P. C.,99 who was the colonel of the regiment composed of this and several other companies. It was held> that the warning sufficiently described the company in question.</p>

<p>In trespass quare clausum, brought before a justice of the peace, the defendant cannot give in evidence, under the general issue, a license to enter on the locus in quo.</p> <p>The plaintiff, being the owner of land adjoining a highway, entered into a parol agreement with the defendant, that he would throw a part of his land into the highway, in consideration that the defendant would set back the plaintiff’s wall and prepare the road, as thus widened, for use, and the plaintiff did accordingly throw a portion of his land into the highway, and the defendant set back the plaintiff’s wail, and while he was engaged in preparing the road, by the removal of earth from such portion of the plaintiff’s land, the plaintiff forbid his removing any more earth therefrom. Heidi that the agreement was a mere license, and that it was revoked by the plaintiff’s prohibition.</p>

This was an action of covenant, to recover damages for the breach of a contract under seal, between Walker and Fitts, dated the 1st of April, 1834.

On a case stated it appeared that this was an action of assumpsit on a written promise of the defendant to deliver to the plaintiff, on demand, certain articles which the plaintiff, as a deputy sheriff, had attached on a writ of one Hawes against one Slayton, the articles having been voluntarily produced by Slayton to secure Hawes’s demand.

<p>Case against a deputy sheriff. The trial was before Dewey J.</p> <p>It appeared, that on the 14th of December, 1836, the plaintiffs, having a demand then due against Elbridge G. Williams, sued out a writ, and on the next day delivered the same to the defendant to be served ; that at the time when this writ was received by the defendant, he had in his hands a writ issued in favor of Charles Randall against Williams, upon which he had, a few minutes previously, attached certain property of Williams ; that the plaintiffs forbade the defendant from appropriating the proceeds of the property attached, in satisfaction of the judgment which might be recovered by Randall, on the ground that the attachment made on his behalf was illegal and void; that both Randall and the plaintiffs gave the defendant bonds conditioned to indemnify him from the consequences of applying the property attached in satisfaction of their respective claims, and within thirty days from the time when they, severally, recovered judgment, placed their executions in the defendant’s hands to be served ; and that the defendant afterwards applied the proceeds of the property attached, upon the execution issued in favor of Randall, and returned the execution of the plaintiffs in no part satisfied.</p> <p>The plaintiffs, in order to prove, that the attachment upon Randall’s writ was void, offered in evidence, the written deciaration of Randall signed and sworn to in the form of a deposition taken in the action brought by Randall against Williams, in which the present plaintiffs, as after attaching creditors of Williams, sought to vacate Randall’s attachment.</p> <p>The defendant objected to the admission of this evidence ; but the objection was overruled and the evidence admitted. By this deposition it appeared, that when Williams gave the note which was the subject of the action brought by Randall against Williams, he promised to secure Randall in case of difficulty, but that the manner or mode in which this should be done, was not stated ; that such action was procured to be brought by Williams ; and that Randall knew nothing of the action, until the day after the attachment was made in his behalf.</p> <p>The defendant then introduced as a witness David Randall, a brother of Charles Randall, who testified, that Williams, about the time of his failure, called at the house of one Marsh, in Petersham, where the witness lived, and said, that there was trouble at Lunenburg, which was the place of Williams’s residence, and requested Marsh to carry him to Worcester, in order to secure some debts, and desired the witness to tell his friends about it, but not to noise it about the neighbourhood ; that Williams did not name the persons whom he was going to secure; that the witness told his brother Charles what Williams had said, and Charles replied, that it was no more than he expected, and that if Williams did not secure him, he' was a rascal; and that this conversation took place about the middle of the forenoon of the day after that on which Williams called at the house of Marsh. The plaintiffs objected to the competency of this testimony ; but it was admitted.</p> <p>If the evidence introduced by the plaintiffs was competent, and if the Court should be of opinion, upon such evidence, that the plaintiffs were entitled to recover, the defendant was to be defaulted; but if the Court should be of opinion, that such evidence was not competent, a new trial was to be granted.</p>

Assumpsit. The writ bears date the 30th of July, 1838, and was served on that day upon the Manufacturers’ Mutual Fire Insurance Company as trustees of the defendants.

Replevin. On a case stated it appeared, that before the year 1832, the plaintiff and the defendant were members of a religious society in the town of Bedford, under the pastoral care of the Rev. Samuel Stearns. The defendant and Amos Hartwell were deacons of the church ; of which the plaintiff was a member.

On the 3d of February, 1830, Benjamin S. Kendall made his last will, in writing, attested by two subscribing witnesses ; wherein, 1. he directs that all his just debts and funeral charges be paid out of his estate ; 2. he gives to his wife, Hannah Kendall, all his personal estate ; 3. he gives the improvement and income of all his real estate to his wife during her life, with a right to cut firewood, and timber to repair buildings and fences; 4. after the decease of his…

Glidden heretofore filed his original bill in equity against Hunt, to redeem three parcels of land under mortgage, and a decree was pronounced at October term 1833, that he be permitted to redeem. At the same term Hunt filed his cross bill; and the original bill was continued, upon a motion to amend the decree to conform to the judgment of the Court upon the cross bill and answer.

<p>if a minor be enlisted, under an act of Congress, in the army or navy, without the consent of his father or guardian, this Court will discharge him from such enlistment, upon the application of the father or guardian, unless it appear, by the express words of the act or by necessary implication, that Congress intended to dispense with the necessity of such consent.</p>

This was an action of replevin against a deputy sheriff, ol certain merchandise attached by him at the suit of one Neally., on a writ against Thomas A. Ambrose.

<p>Goods sold were attached as the property of the vendor, and were then replevied from the attaching officer by the vendee, and the subscribing witness to the bill of sale became a surety on the replevin bond. At the trial of the action of replevin, the officer objected to the introduction of such witness by the vendee, to prove the execution of the bill of sale, upon the ground that the witness was a surety on the replevin bond ; and the vendee thereupon offered to procure a new surety, but the officer would not consent thereto. It was held, that the execution of the bill of sale might be proved by other evidence than the testimony of the subscribing witness ; and that the vendee was not bound to produce the vendor as a witness, for this purpose.</p> <p>If the declaration of a person is, in itself, a fact in a transaction, or is made by him while doing an act, and serves to explain it, it is to be received in evidence as part of the res gestee ; but a recital of past transactions is not admissible, although it may have some relation to the act which the person may be doing when he makes such declaration.</p> <p>Thus, in an action by the vendee of goods against an officer who had attached them after the sale, as the property of the vendor, it appeared that the vendor declared to the scrivener at the time of the execution of the bill of sale, that he was insolvent, that his son was liable for him as surety, that he wished to make a conveyance of the goods to the vendee and to take his notes for the purpose of securing his son, that he had consulted some of his creditors, and that they were willing to wait, if he would put his property into the vendee’s hands. It was held, that such declarations, so far at least as they were not merely explanatory of an act about to be done, but embraced a "recital of past transactions, were not competent evidence, to prove that the bill of sale was bond fide.</p>

<p>Cumulative evidence is additional evidence of the same kind to the same point</p> <p>In trover for a horse, the defendant introduced various evidence, but no confession of the plaintiff, to prove that the horse had been sold to the defendant by a person acting under the authority of the plaintiff. On a motion for a new trial, it was held, that newly discovered evidence of the confession of the plaintiff, that he had authorized the sale, was not cumulative, it being a new kind of evidence.</p> <p>On a motion for a new trial on the ground of newly discovered testimony, the Court will hear evidence respecting the credibility of the witness.</p>

On a case stated it appeared, that this was assumpsit on the following writing, dated January 10th, 1833, signed by the .defendant, and addressed to the plaintiff: “ Please send Mr. Amos Wetherbee goods to the amount of one hundred dollars, and I will guaranty the same in four months.” The action was commenced in August 1833.

<p>A draft, dated April 3d, 1834, was drawn in New York on the defendant, who resided in this State, and sent here to be collected j and the defendant being then in New York, the payee produced to him a discharge from such draft and requested him to pay it; bul the defendant replied, that “ he would rather pay it in the regular way, when presented,” that “ he would pay to any person who should present it.” The draft was afterwards sent back to New York, and the payee enclosed it in a letter, dated April 15lh, 1834, to the defendant, in Boston, and requested him to send the amount thereof in money by mail ; but the defendant, although repeatedly written to on the subject, made no reply. On May 26th, 1834, the defendant wrote to a third person in New York, acknowledging the receipt of the draft, and stating that it would be disposed of some way or other when lie should be there. It was held, that a jury would be warranted in finding that the defendant had waived the condition originally made in regard to a personal presentment, and had, by implication, bound himself as an absolute acceptor of the draft.</p>

Assumpsit for money had and received. On a case stated it appeared, that in February 1832, Joseph Nutting was indebted to the defendants on six promissory notes, signed by him as principal with different sureties ; that the plaintiff had signed one of the notes as a surety; that a suit was commenced by the defendants against Nutting on the six notes, and his property was attached ; that judgment was recovered for the aggregate amount of the notes ; and that the execution…

Assumpsit upon a promissory note made by the defendant, and payable to the order of Hiram S. Grover, the plaintiff’s intestate. At the trial, before Putnam J., it appeared, that in March 1832, Grover V. Blanchard called to see the intestate.

This was an action of covenant broken. The parties stated a case. On October 1st, 1832, the defendants, by their warranty deed of that date, conveyed to the plaintiff a parcel of land, containing 8500 square feet, and covenanted, in the usual form, that they were seised in fee of the premises, and that the same were free of all incumbrances. These covenants were alleged by the plaintiff to have been broken.

Writ of entry to recover seisin of two undivided third parts of certain lands and tenements in Shirley, of which the demandants alleged that they were seised in fee and in mortgage. The parties stated a case. On January 31st, 1833, Joséph and Joseph B. Edgarton mortgaged the demanded premises to the demandants, to secure the payment of a joint and several promissory note of that date, made by the mortgagors for the sum of $ 13,000, payable in two years, with interest.

Trover. At the trial, before Wilde J., the plaintiff offered in evidence the deposition of Alexander D. M‘Kenzie ; to which the defendant objected, on the ground that M‘Kenzie was incompetent as a witness, having been convicted in the Municipal Court, at Boston, of the crime of forgery.

Assumpsit by the plaintiff, as a minister of the gospel, to recover his salary for a year, commencing on the 24th of October, 1832. On a case stated it appears, that the parish was incorporated on the 7th of February, 1792.

Upon a case stated, it appeared, that this was an action of the case against the defendant, for rejecting the plaintiff’s vote at a parish meeting of the Congregational Parish in Easton.

In a complaint brought by Snell against the Bridgewater Cotton Gin Manufacturing Company, for flowing his land by means of their mill-dam, he alleges, that he presented a former complaint in 1831, and the jurj appraised the yearly damages done by the respondents by flowing his land, at the sum of $25, and they further found that -the sum of $400 in gross, would be a just compensation for all the damages done or to be done to him by raising and keeping up a head of water at a…

This was an action on the case for a nuisance to ‘he plaintiff’s mill and meadow, situated on Herring river. The defendants owned a tide mill on the same river, more than one hundred rods below that of the plaintiff.

Trespass, for breaking and entering the plaintiffs’ close with a caravan of wild animals, on the 16th of May, 1834, and continuing thereon for several hours. The parties stated a case. It was admitted, that the defendants went upon the close under a license from Nathan Hayward ; who claimed to be a tenant in common with others, of the close, and who set up a special possession of that portion of it on which the caravan was encamped.

Bt an agreed statement of facts it appeared, that on the 5th of March, 1834, an instrument in writing, dated February 18th, 1834, was signed by Frederick Curtis and Charles Bars-tow, by which the parties, after reciting that they had purchased the stock in, and taken a lease of the yard recently occupied by Leavitt Souther, agreed to enter into partnership for the purpose of carrying on the business of ship-building &c., under the firm of Curtis & Barstow; that on the same…

<p>In an action on an administration bond, to a plea of general performance the plaintif replied, that on a final settlement of the administration account there appearing t< be a balance in the hands of the administrator, which belonged to the Common» wealth, the judge of probate decreed that the administrator should pay it into the treasury of the Commonwealth. Held, that it was unnecessary to go behind this decree and aver that the administrator’s account had been examined and allowed by the judge of probate.</p> <p>In the case of a decree of distribution, directing an administrator to pay money into the treasury of the Commonwealth, it is his duty to make the payment without any demand upon him.</p>

Writ of right, to recover certain land in Braintree, alleged to have descended to Sarah White, the wife of Jonathan, from her father, Samuel Arnold junior. Both parties claimed under Samuel Arnold senior, the father of Samuel Arnold junior.

<p>If one, having no title to land, conveys the same with warranty, by a deed which i* duly recorded, and he afterwards acquires a title and conveys to a stranger, the second grantee is estopped to aver that the grantor was not seised at the time of his conveyance to the first grantee.</p>

<p>This was a petition for partition, representing, that the petitioners held as tenants in common with Stephen Minot and his three children, Charles, Harriet and George Minot, Daniel Gage and Hannah his wife, and other persons unknown, one eighth of a parcel of land in Bradford, containing fourteen acres ; and one fourth in three smaller parcels in the same town.</p> <p>Gage and his wife were defaulted. Stephen, Charles, Harriet and George Minot, and Samuel, Martha and Helen Trask, appeared and severally pleaded, denying that the petitioners were seised as alleged.</p> <p>The petitioners, on one part, and the respondents, severally, on the other part, agreed upon the following facts.</p> <p>Before 1805, Samuel Trask, of Bradford, died intestate, seised of all the land described in the petition, and of two parcels in Methuen, and leaving a widow and four children. The children'Were Samuel Trask, Seth Trask, Hannah Gage, wife of Daniel Gage, and Rebecca Minot, wife of Stephen Minot.</p> <p>The land in Bradford is all in one parcel, except so far as that the county road crosses it. The part on each side of the road is inclosed by a fence, but has never had any division fence. The two parcels in Methuen, the part in Bradford on the north side of the road, being about four acres, and two small parts of the parcel on the south side of the road, were assigned to the widow, by metes and bounds, as her dower.</p> <p>Afterwards, in 1810, Moses Wingate, having an execution against Seth Trask, levied it on the reversion of one undivided fourth part of the two parcels in Methuen, the part in Bradford north of the road, and the two parts in Bradford south of the road, which had been assigned to the widow for her dower, and on one undivided eighth part of the residue of the land in Bradford south of the road, and the whole was appraised at the sum of $106, without estimating the separate value of each parcel. Seth' Trask died intestate, without issue, before 1820</p> <p>Moses Wingate conveyed the whole estate set off to him., to David Preston ; and that part of it which was in Bradford, Preston conveyed to the petitioners before the preferment of this petition.</p> <p>The widow died in 1827.</p> <p>Samuel Trask, of Portland, died intestate, leaving Samuel, Martha and Helen Trask, the respondents, his children and heirs at law.</p> <p>Rebecca Minot died intestate, leaving Charles, Harriet and George Minot, her children and heirs at law; and Stephen Minot is tenant by the curtesy of her estate in the land.</p> <p>One undivided eighth of that part of which Wingate levied on only one eighth, had been previously levied on by one Goodridge, on an execution against Seth Trask.</p>

<p>in the St. 1830, c. 99, § 6, which enacts ** that if any side or sides of sole leather shall vary, when thoroughly dried, so as to weigh five per cent more or less than the weight marked thereon by any inspector, the inspector who inspected the same shall be subject to the payment of the whole variation, at a fair valuation, to be recovered by the party injured thereby,” the words thoroughly dried mean that the leather is to be suitably and sufficiently dried, so as to be in a proper state for sale and use•</p>

<p>Exceptions will not He to the doings of the Court of Common Pleas relative to the laying out of a highway.</p> <p>If, after the county commissioners have laid out a highway and assessed the damages sustained by the owner of land over which it is laid out, such owner removes his fences and rebuilds them on the line of the highway so laid out, he does not thereby deprive himself of his right to a jury to reassess the damages.</p>

<p>Where a highway is made by the county commissioners, in two adjoining towns, at the expense of the county, the commissioners, in order to apportion the sums to be repaid by these towns respectively, must necessarily ascertain the dividing line between the towns, but it is not necessary that they should point out and establish any natural or artificial object as a monument to indicate where they determine the line to be.</p> <p>Thus, where the commissioners erected a bridge and determined that the thread of the river constituted the dividing line between the towns, and apportioned the expense accordingly, but did not fix upon any monument showing the thread of the river, their proceedings were sustained.</p> <p>A mandamus does not lie to compel the county commissioners to order a part of the expense incurred by a town in making a highway, to be repaid out of the county treasury, this being a question addressed to the judicial discretion of the commissioners.</p>

<p>This was an action on the case against the defendants for destroying a pew in their meetinghouse.</p> <p>At the trial, before Putnam J., the plaintiff proved, that in May 1832, he was seised of the pew, and that the defendants destroyed it, pursuant to a parish vote.</p> <p>It appeared that the pew was pulled down for the purpose of making the structure of the pews more convenient, which was expedient, and not from necessity or malice.</p> <p>The defendants proved, that in repairing their meetinghouse they voted and proceeded according to St. 1817, c. 189.</p> <p>Notice of the meeting of the committee chosen by the defendants to appraise the pews, was given by an advertisement being posted at the meetinghouse on Sunday, the day preceding the day of the meeting. The plaintiff, at that time, was not a member of the parish, but was a member of and worshipped with another religious society. His family usually attended worship with the defendants.</p> <p>The appraisement was admitted in evidence, and two of the appraisers were examined to prove the proceedings of the committee, though objected to by the plaintiff. On their cross-examination they stated the grounds on which they estimated the value of the pews.</p> <p>After the appraisement the defendants tendered to the plaintiff the sum of $ 45, the appraised value of the pew, which he refused to accept.</p> <p>The plaintiff objected to the competency of the evidence of the appraisal and tender. Both parties introduced other evidence as to the value of the pew.</p> <p>The judge instructed the jury, that the proceedings of the committee of appraisers were competent evidence to be weighed by the jury, in estimating the value of the plaintiff’s pew ; that the notice of their meeting was sufficient; and that if $45, tendered as above mentioned, was the full value of the pew, the plaintiff was barred of this action by the tender.</p> <p>The jury returned a verdict for the defendants, allowing the plaintiff the sum tendered.</p> <p>If the evidence as to the appraisal or as to the tender, was incompetent, or if the instructions to the jury were erroneous, a new trial was to be granted ; otherwise judgment was to be rendered according to the verdict.</p>

<p>If it be the duty of the county commissioners, under Revised Stat. c. 47, to license one or more persons in each town to retail spirituous liquors, their refusal to licem /y person whatever does not annul the statute and authorize every person to " spirits without a license.</p> <p>A r' prohibiting the sale of spirituous liquors by retail, without a license, and e. yig the payment of an excise on the granting of the license, is not repugnant to ; ¡ constitution of the Commonwealth.</p>

<p>The provisions in Revised Stat, c. 47, that no person shall presume to be a retailer or seller of spirituous liquors in a less quantity than twenty-eight gallons, unless he is first licensed as a retailer of spirits, and that every person thus licensed shall pay one dollar therefor, in their application to a sale not made by the importer nor in the original package in which the spirit was imported, are not repugnant to the clause in the constitution of the United States, that no State shall lay any imposts or duties on imports or exports, except &e., nor to the clause, that congress shall have power to regulate commerce with foreign nations and among the several States.</p>

<p>On the trial of an indictment for selling spirituous liquor without a license, in viola* tion of Revised Stat. c. 47, § 3, the purchaser may be required to testify to the sale.</p> <p>If a witness called to support a criminal prosecution objects to giving his testimony, because it will criminate himself, but is nevertheless erroneously compelled to testify, and the defendant is convicted, it seems that the error does not affect the rights of the witness alone, but that the defendant may object that the conviction was found ed upon illegal evidence.</p> <p>The words of the statute being general, that no person shall presume to be a retailer or seller of spirits in a less quantity than twenty-eight gallons, unless he is first licensed as a retailer, it is not competent for a party indicted for selling contrary to the statute, to prove that the spirit was bought of him to be used as medicine $ at least not without proof that he was an apothecary or druggist, or professed to deal in medicines, and that the purpose of buying was made known to him at the time of the sale ; but it seems that such proof would make no difference.</p> <p>On the trial of such an indictment, it is competent to the government to give in evi* dence the declaration of the defendant, that he considered the law unconstitutional and intended to sell in disregard of it, although the alleged sale was after the defendant had been convicted on an indictment for a similar offence, on the trial of which the same declaration had been given in evidence.</p> <p>On the trial of such an indictment a witness for the defendant having testified, that before the alleged sale he had purchased of the defendant all the spirits in the defendant's shop, and paid therefor, and taken a lease of the shop, and that the alleged sale was made by an agent on his account, and not on account of the defendant, it was held, that the defendant had a right to ask the witness whether the transaction with him was an actual bond fide or only a colorable and pretended sale. '</p> <p>On the trial of an indictment the jury were instructed, that when the government have made out a primó facie case, it is incumbent on the defendant to restore himself to that presumption of innocence in which he was at the commencement of the trial It was held, that this was erroneous, and that the jury should have been instructed, that the burden of proof was upon the Commonwealth to prove the guilt of the de fendaot; that he was to be presumed innocent, unless the whole evidence in the case satisfied them that he was guilty.</p>

<p>One act of sale constitutes an offence, within the meaning of the Revised Stat. c. 47, § 3, that no person shall presume to be a retailer or seller of spirituous liquors in a less quantity than twenty-eight gallons, unless licensed as a retailer of spirits.</p> <p>An indictment, therefore, merely following the words of the statute, that the defendant presumed to be a retailer or seller of spirituous liquors, without a license, is insufficient ; it must aver, that at a time and place stated, he sold to a person named, or to a person unknown, as the case may he.</p> <p>Such án indictment must aver that the defendant was not duly licensed, and on the trial it is incumbent on the government to produce prima facie evidence of that fact, for as the county commissioners keep a record of the granting of licenses, the negative averment can be proved with facility.</p>