Volume 42 — Massachusetts Reports

<p>Fraud in the defendant, and damage to the plaintiff, are the gist of the action for a deceitful representation that a third person is entitled to credit.</p> <p>Such action is not supported by proof that the representation was unwarranted and groundless. It must also be proved, that the defendant did not believe his representation to be true.</p>

<p>When property is assigned, conformably to the St. of 1836, c. 288, a creditor oí tne assignor cannot treat the assignment as void, and attach the property, on the ground that no creditor executed the assignment within a reasonable time, and before live attachment j nor because the property remains in the assignor’s hands as agent of the assignee, and is neglected or mismanaged. The remedy of creditors, in such case, is against the assignee, under the provisions of § 7 of that statute.</p>

<p>Assumpsit on a policy of insurance, dated July 22d, 1837, whereby the defendants caused the plaintiff “to be insured, lost or not lost, $ 8000, for one year from date, on brig Heela, valued at $ 8000, against the perils of the sea.”</p> <p>In one count, the plaintiff claimed for an entire loss; in other counts, for his individual interest in one eighth, and for his interest, as administrator, in three eighths, and for advances. There was also a count for money had and received.</p> <p>The parties submitted the case to the decision of the court upon these facts : The brig Heela of Plymouth, was built in 1834, by the six persons hereafter named, and was owned by them, and registered in their names, in the following proportions, viz. Elkanah Finney, three eighths, Josiah Finney, the plaintiff, David Finney, and Joseph Allen, one eighth each, Henry Whiting three sixteenths, and John Finney one sixteenth. Elkanah Finney died on the 3d of February, 1837, and during that month administration on his estate was committed to the plaintiff. The plaintiff kept the accounts of the brig, received the avails, made the disbursements, and directed the voyages generally, from the time she was built. In February, 1838, the brig sustained damages on the coast of Spain, from perils insured against.</p> <p>The plaintiff, in his application for insurance, did not mention, nor did the defendants inquire, who were interested in said brig; nor did the defendants know who were interested, until after the loss.</p> <p>On these facts, the court were to decide to what extent the policy attached, and what proportion of the entire loss the plaintiff is entitled to recover; and the damages were to be assessed by an auditor, upon such principles as the court should prescribe.</p> <p>The defendants, at the opening of the argument, admitted their liability to pay for the one eighth owned by the plaintiff in nis own right.</p>

<p>A dormant partner is not liable for debts of the firm contracted after a dissolution of the partnership, although he does not give notice of such dissolution.</p>

<p>Assumpsit for money had and received. At the trial in the court of common pleas, before Ward, C. J., the plaintiffs gave in evidance the defendant’s promissory note, dated September 24th, 1824, on the margin of which the defendant wrote and signed these words, in the presence of an attesting witness : “ November 4th, 1831. For value received, I hereby acknowledge this note to be due, and promise to pay the same on demand.” The judge instructed the jury, that this last promise took the note out of 'the operation of the statute of limitations. The defendant offered to prove that there was no consideration for this last promise, except the note of September 24th, 1824, and that the latter was given for a premium on a policy of insurance underwritten by the plaintiffs, on the schooner New Orleans, that was unseaworthy during the whole time she was insured, and that the policy therefore never attached, and so the original note was without consideration. He also offered to prove further, that the plaintiffs refused to pay a loss caused by the perils insured against, because said schooner was unseaworthy. But the judge instructed the jury that the defendant could not give these facts, or either of them, in evidence in this action. To these instructions the defendant excepted.</p>

<p>Assumpsit on this guaranty, viz. “ Boston, June 21st, 1833. Messrs. Bent & Bush. I hereby agree to be responsiole for the price of hats and other goods purchased of you, either by note or account, by H. Hartshorn at any time hereafter, to an amount not exceeding one thousand dollars. Rolun Hartshorn.” The parties submitted the case to the court on the following facts: “In 1833, Harvey Hartshorn, brother of the defendant, wished to obtain credit of the plaintiffs to enable him to carry on business. The defendant, to enable his said brother to obtain, and to induce the plaintiffs to give, such credit, signed and delivered to them the above letter. The plaintiffs accepted the same, (of which the defendant had notice,) and proceeded to sell hats and other goods to said H. Hartshorn, to a considerable amount He made sundry payments to the plaintiffs, on account of the goods so sold to him, to the amount of more than $ 1000, which were credited to his account, generally; but there is still due from him to the plaintiffs, and constantly has been, ever since about the time when he commenced dealing with them, more than $ 1000 for goods sold and delivered. H. Hartshorn died in January, 1837, and his estate is insolvent. Payment of $ 1000 was demanded and refused before action brought.</p> <p>“ The plaintiffs insist that the guaranty is a continuing one, and that, as no notice was given them by the defendant, that he revoked the same, or would not be bound thereby, they are entitled to recover $ 1000. The defendant contends, that said letter h not a continuing guaranty ; but that said H. Hartshorn, having purchased goods of the plaintiffs to the amount therein mentioned, and paid them, on account, a sum equal to that amount, the defendant’s obligation on the guaranty was thereby discharged. And this is the only question between the parties.</p> <p>“ The defendant is to be defaulted, or the plaintiffs to be non suit, as the court shall decide this question.”</p>

Trespass de bonis asportatis. There was no averment in the declaration that the goods were the property of the plaintiffs, or that they had any possession, or right of possession, at the time of the taking. After verdict for the plaintiffs, Brigham filed a motion in arrest of judgment, and cited Com. Dig. Pleader, 3 M. 9. Gould PI. 503. Franklyn v. Reeves, Rep. Temp. Hardw. 118.

<p>Trespass against the sheriff of Norfolk for taking, by one of his deputies, nursery trees, shrubs, and plants, and converting them to his own use. On the trial of the general issue, before Wilde, J., the plaintiff claimed title to this property under an instrument executed by Charles Senior, dated October 3d, 1834 ; and he proved actual delivery, and his possession thereof. The land, in which said trees, &c. were growing, had been demised to Senior, to be occupied for the purpose of a nursery garden, &c. . At a former trial of this action, (20 Pick. 285,) said instrument was produced by the plaintiff as a mortgage, and shown to have been recorded in the office of the clerk of the town of Roxbury. The judge who presided at that trial- ruled that it was a mortgage ; but the whole court, on a reservation of the question at the defendant’s motion, decided otherwise. At the last trial, the defendant insisted that the plaintiff was estopped by his former course of proceeding, to set up the instrument as an absolute sale ; but the judge ruled that the plaintiff was not thus estopped.</p> <p>It was proved that a writ in favor of Sumner & Williams against Senior was put into the hands of a deputy of the defendant, who returned that he had attached the property in question. It was also testified by the person appointed, by said deputy, keeper of said property, that he was directed to keep all the property in the green-house and garden, and not to permit any one to remove it, and that he did keep the same thirteen days, and then delivered it to the attaching creditors of Senior, by order of the deputy sheriff who served the writ.</p> <p>The judge ruled that this was prima facie evidence of a taking and conversion ; to which ruling the defendant excepted. A portion of the shrubs and plants in question were proved to have been in pots, boxes, &c. in a green-house, and others, like the nursery trees, rooted or inserted in the soil. The question was reserved whether damages for taking and converting trees, shrubs, and plants rooted in the soil of a nursery garden, for the purpose of being taken up and sent to market in the spring and autumn of each year, can be recovered in this form of action.</p> <p>A verdict for the plaintiff was taken, so as to separate the damages given for the green-house and pot plants from those rooted in the soil, and is to be sustained, or set aside, wholly or in part, as the court shall order.</p>

<p>This was an action against the sheriff of Middlesex for the default of his deputy, John Kimball, in not serving and returning an execution in favor of the plaintiffs against H. W. Hastings. It appeared, on the trial before Wilde, J. that, in November, 1836, Kimball attached, on a writ sued out by the plaintiffs against said Hastings, a stock of goods, subject to four prior attachments ; that the plaintiffs and the prior attaching creditors, severally recovered judgment against Hastings, took out executions and delivered them, within thirty days, to Kimball; and that the judgments of the three first of those creditors, amounting, in the whole, to $ 1711, were satisfied from the proceeds of the sale, by him, of the goods attached. The fourth attaching creditor directed said Kimball to give priority to the plaintiffs’ execution, and treat their attachment as if it had been the fourth instead of the fifth. Kimball caused the plaintiffs’ execution to be satisfied for the sum of $352'77 only, and did not return it, nor pay the balance due thereon.</p> <p>While the actions of the several attaching creditors of Hastings were pending, viz. on the 2d of February, 1837, he and they signed a writing, consenting that the goods attached by Kimball, on their respective writs, should be sold by him within one month, "at public or private sale, at his discretion,” and that the proceeds thereof should be held to respond the judgments which might he rendered against said Hastings, “ according to the revised statutes, c. 90, § 57.” It was not proved that the defendant had any knowledge of this agreement, at the time il was made.</p> <p>Kimball sold, at private sale, between February 9th and March 26th, 1837, a portion of the attached goods, amounting to $ 2964, leaving unsold goods estimated at !$¡ 1068, which was their original cost. These he afterwards sold at public auction, but it did not appear for what sum, except that the defendant admitted that it was between seven and eight hundred dollars. The money for which the goods were sold was all received by said Kimball.</p> <p>It was insisted by the defendant’s counsel, that the above agreement between Hastings and his attaching creditors, and the acts of Kimball under it, discharged the defendant from all liability for his deputy’s doings in reference to said goods. The judge ruled otherwise, and a verdict was returned for the plain tiffs. The defendant moved for a new trial.</p>

<p>4 subsequent attaching creditor, on being admitted by the court of common pleas, under St. of 1823, c. 142, to defend an action brought by a prior attaching creditor, filed a bond for the payment of all such costs and damages as said court should adjudge and decree to have been occasioned by such defence to be so made. The action was afterwards brought, by appeal, into this court, where defence was made but did not prevail. Judgment was thereupon rendered against the defendant for the plaintiffs’ full demand and for costs, and execution was sued out thereon and returned satisfied in part only, the defendant being insolvent. No adjudication respecting costs, &c. was made by the court of common pleas.</p> <p>Heldy that the plaintiff’s only remedy was by suit on the bond, after an adjudication, as to costs and damages, by the court of common pleas ; and that lie had waived this remedy by taking his said judgment against the original defendant.</p>

<p>The maker of a promissory note is bound to pay it, upon demand made at any seasonable hour of the last day of grace, and may be sued on that day, if he fail to pay on such demand.</p> <p>Post notes, issued by a bank, are payable on demand made at any time, on the last day of grace, after the known and usual hour of opening the bank for business, and may be put in suit on that day, if payment is refused.</p>

<p>A testator devised to his wife all his property, during her widowhood, subject to his debts and the legacies bequeathed by him, and appointed her his executrix. He also authorized her, during her widowhood, to sell and convey so much of his real estate as she might judge necessary and expedient for payment of his debts, and for her support and that of her children, and for their education. She accepted the trust of executrix and administered upon the estate. She sold, within two years, part of the real estate, under the authority in the will, and shortly after married again. After her second marriage, she sold the residue of the real estate, for payment of debts, under a license of court, and executed deeds thereof, in which her husband joined, making no reservation therein of her right of dower, and being under no misapprehension concerning the condition of the estate. Thirteen years after the death of her second husband, she first claimed dower in the estate sold under said license.</p> <p>Held that she had accepted the provision made for her in the will, and that her claim to dower was thereby barred.</p>

<p>This was an appeal from a decree of the judge of probate in this county, disallowing the appellant’s claim to dower in the estate of her late husband, Erasmus Thompson. The will of said Erasmus, proved on the 28th of August, 1837, was this : “ I give to my wife, Belinda Thompson, upon condition that she shall pay to each of my sisters [naming two] the sum of $ 100, and afford to my mother a competent support during her life, all the real and personal estate of which I shall be the owner at the time of my decease, after my just debts shall have been paid, with all the privileges and appurtenances necessary for the enjoyment of the premises ; to hold, occupy, and enjoy the said estate so long as she shall remain my widow. But in case of a second marriage on the part of my wife, I give to her one third only of my real estate, and to my children the remaining two thirds.” The appellant was appointed executrix of the will, took out letters testamentary, returned an inventory on the 25th of September, 1837, and exhibited a list of debts and represented the estate to be insolvent on the 11th of June, 1838, when she also represented to the judge of probate that the provision made for her in said will had wholly failed, by reason of the insolvency of the estate, which was not known nor suspected by her until more than six months after probate of the will; wherefore she petitioned to be endowed in the lands of her husband. This application for dower was denied by the judge ; but commissioners of insolvency were thereupon appointed, who returned, in January and May, 1839, debts proved before them to an amount which rendered it probable that the estate would be insolvent, or, at least, that nothing would be left for the appellant, under the provisions of the will. On the 7th of January, 1839, the appellant again presented to the judge of probate a petition to be endowed, setting forth that the testator’s real estate must be sold for payment of his debts, and that a sale thereof could not be made without great loss, until her claim to dower should be determined. The judge decreed that she was not entitled to dower.</p> <p>The reasons of appeal from this decree were, 1. Because the testator, not aware of the condition of his property, when he made his will, and afterwards until his decease, represented to the appellant that said estate would amount to a large sum, and she thereupon helieved she should enjoy the whole of it subject to the. charges imposed by the will; and this erroneous belief re ■ maining unaltered for more than six months after probate of the will, she was prevented from making an election between said supposed provision and her dower. 2. Because, in truth, said will did not contain any real provision for the appellant. 3. Because, under the circumstances of the case, she was not, and could not be, held to make an election.</p> <p>The case was argued in writing.</p>

Bill in equity, praying that the defendant may be compelled to pay to the plaintiff his distributive share of money received by the defendant of the Boston and Worcester Rail-road Corporation, for damages awarded by reason of their having taken to their use certain real estate, the income of which was devised, by Susan Gibson, to the plaintiff and others.

<p>A supplemental bill ought not to be filed as a matter of course, but only by leave of the court upon sufficient cause shown ; and the supplemental matter must be verified by affidavit, or other satisfactory proof.</p> <p>To warrant the filing of such bill, it should be shown to the court, either, 1st. That the matter, relied upon as supplemental, arose after the original suit was commenced j or 2d. That the facts relied upon first came to the plaintiff’s knowledge, or were made known to him in such a manner that he could avail himself of them, after the cause had passed the stage in which he might have had leave to amend; or 3d That the plaintiff has been prevented, through inadvertence, misapprehension, &c* of himself, or his agents or counsel, or other cause satisfactorily shown, from availing himself of the proposed matter of his supplemental bill, at an earlier stage of the cause.</p>

The question in these cases arose upon the answers of T. Coffin and E. M. Gardner, who were summoned as trustees of Ray, the defendant. The facts are stated in the opinion given by the court.

Petition for a review and supersedeas. The petitioners alleged that the respondent, at the January term, 1840, of the court of common pleas, recovered judgment against them, by default, for the full amount of a promissory note made by them to him, and that execution had issued on said judgment.

Assumpsit by the indorsee against the indorser of a promissory note made and indorsed in Illinois, where the maker and indorser resided at the time of the making and indorsing.

Assumpsit on several promissory notes given by the defendant to John Hubbard, the plaintiffs’ testator, and on several terns of account. The defendant filed an account in offset; and the principal controversy, at the trial before Wilde, J. (so far as it relates to the question now brought before the court,) was respecting a written promise of the testator, hereinafter set forth. (p. 89.) The evidence as to this promise was as follows.

This was a writ of entry sur disseizin, brought to recover a parcel of land, formerly flats, but now reclaimed from the sea, sit uated in a cove at the southerly part of Boston, near the junction of Washington and Pleasant Streets.

Assumpsit against the makers of a promissory note foi $ 1000, dated December 20th, 1835, payable in six months, without grace, to their own order, and by them indorsed to the plaintiff. The note was afterwards indorsed by the plaintiff, and then by Charles Haynes.

Assumpsit to recover the proceeds of the sale of two bales of cotton. The parties submitted the case to the decision of the court upon the following facts : The plaintiff, in January, 1833, sailed from Boston to Mobile as chief mate of a vessel owned by the defendants.

<p>A lease for years by indenture, in which the lessor acknowledges the receipt, m advance, of a gross sum, in full for rent of the demised premises during the term, and in which the lessee covenants to reconvey the premises on payment of said sum and interest thereon, is a mortgage ; and the rights and duties of the parties are Eke those of mortgagors and mortgagees of estates of freehold.</p> <p>So of a lease prepared in such form, but executed by the lessor only ¿ provided the lessee accepts it and takes possession under it.</p> <p>In the latter case, there is no covenant, technically, on the part of the lessee, upon which an action can be maintained. But if he underlets the demised premises, and receives rent before the term expires, to the amount of the gross sura advanced by him, and interest thereon, his estate for years is thereupon defeated, and the lessor is immediately in of his old estate. All that the lessee receives above that amount, is received, not as mortgagee, but for the lessor, who may recover it of him in an action for money had and received.</p>

<p>Petition for a writ of certiorari to bring up the record of the town of Boston concerning the widening of Beacon Street. The petitioners alleged, that in the year 1815, said street was widened by the selectmen of Boston by talcing a piece of land formerly owned by the late Governor Hancock, but then in the possession of his widow as part of the dower assigned to her in his estate, the reversionary interest therein belonging to the petitioners and others : That though a part of the heirs of said Hancock conferred with said selectmen respecting the widening of said street, and objected to the whole proceeding, yet said selectmen, having been advised by counsel that said heirs could make no claim for damages, until after the determination of said widow’s life estate, gave no notice to said heirs of their intended proceedings, and awarded them no compensation for the taking of said land, though it was of great value.</p> <p>The petitioners further alleged, that during the whole of the" proceedings aforesaid, and long before, Thomas Hancock, one of the owners of the reversionary interest in said land, was, and ever since has been, non compos mentis, and that he had no guardian, until several years after said proceedings were finished. It was alleged, that said selectmen, in the proceedings aforesaid, acted under and by virtue of the statutes of 1799, c. 31, and 1804, c. 73, and that those proceedings were erroneous for want of notice to said heirs.</p> <p>The present guardian of said Thomas Hancock was a party to this petition.</p> <p>The special circumstances of the transaction complained of in ihe petition, as they appeared at the hearing, are stated by the i hief justice.</p>

<p>Debt on a bond for the liberty of the prison limits.</p> <p>It was agreed by the parties that- Daniel Peters, one of tne defendants, was committed to the jail in Worcester, on the 1st of April, 1839, upon an execution on a judgment recovered against him by the plaintiff; and that both defendants, on the next day, executed the bond declared on, one of the conditions of which was that said Daniel should, “ at the expiration of ninety days from the day of his commitment, surrender himself at the jail-house for the purpose of being committed to close confinement, unless,” &c. It was further agreed, that said Daniel surrendered himself to the keeper of the jail, on the 1st of July, 1839, and was discharged, on that day, by taking the poor debtors’ oath.</p> <p>Plaintiff to become nonsuit, if the surrender was seasonably made, according to the condition of the bond ; otherwise, the defendants to be defaulted.</p>

<p>A by-law of the city of Boston, requiring that every person, who enters his particular drain into a common sewer of the city, shall be held to pay to the city such sum as is his just proportion of the expense of making such common sewer, having reference always to the last valuation of such person’s estate, in the assessors’ books, previous to the expenditure, is void for inequality and unreasonableness.</p> <p>The city cannot maintain a count on a quantum meruit against one who enters his par-ti :uiar drain into such common sewer.</p>

<p>it was agreed between A. and B. that if A. would, at his own expense, complete a certain machine which he had projected, and satisfy B., by trial thereof, that it would save one fourth, or more, of the expense then incurred by B. in a certain manufacturing process, B. would pay A. twelve per cent, on the actual savings made by said machine. A. built the machine in B.’s warehouse ; but B. in fact paid all the expenses of building it, including the labor of A. thereon. B. used the machine, and the sav ings made by the use thereof more than repaid him the expense of constructing it.</p> <p>Held, that the machine was the property of B.</p>

<p>Assumpsit on a policy of insurance, dated March 12th, 1838, by which $ 5,000 were insured “ on freight on board ship Herald, at and from Cadiz to one port in Sicily, and at and from thence to her port of destination in the United States.”</p> <p>The freight was valued at $ 5,000, including the premium, which was $ 175. The plaintiff owned the vessel, and on the 25th of November, 1837, chartered her to Chamberlin, Boon, & Co., for a voyage from Palermo to New York, for $ 2,500, with $ 35 per diem demurrage ; “ excepting the cabin, the deck, and the necessary room for accommodation of crew, &c. The captain to have the privilege of freight in the cabin.” The vessel sailed from New York, December 3d, 1837, bound to Cadiz, and thence to Palermo, and thence home. She arrived at Cadiz January 1st, 1838, discharged her cargo there, took eight coils of rigging, of fifty fathoms each, to be carried to New York, and on the 24th of February, when ready for sea, and about to sail for Palermo, was wrecked in the Bay of Cadiz.</p> <p>A policy on the vessel had been previously made, viz. November 24th, 1837, by the Pacific Insurance Company, insuring “ Z. Cook, Jr. for D. H. Robinson, for whom it concerns, payable to said Robinson, or order, $ 5,000 on the freight of ship Herald at and from New York to Cadiz, and at and tnence to one port in Sicily, and at and thence to a port of discharge m the United States.” This policy was cancelled on the same day that the policy now in suit was made, at which time the arrival of the vessel at Cadiz was known to the assured.</p> <p>The Herald was abandoned to the defendants, April 17th, 1838. The protest was delivered to them on the 25th of May, and the survey on the 28th of May, 1838.</p> <p>It appeared from the deposition of the master, that during almost all the time the Herald was at Cadiz, the weather was so rough and the sea so heavy, that lighters could not be kept along side to take out the cargo, which was not wholly discharged until the 20th of February, 1838, fifty days after the vessel arrived there. The vessel was put up for freight by the master, in pursuance of the plaintiff’s orders ; and the master attributed it partly to being detained at Cadiz so long, that he did not obtain more freight for Palermo; and he was informed by his agents, that some, who originally intended to send freight to Palermo, altered their minds. He could not form an estimate of the amount of freight which might have been obtained under favorable circumstances, but deposed that “it might have been five hundred dollars, or five times that amount.” He also deposed, that the freight from New York to Cadiz was about one thousand dollars, which was paid in advance, except $ 170, which he received at Cadiz.</p> <p>On the foregoing facts and testimony, the question was, whether the plaintiff should recover for a total loss, or the policy be opened on the ground of an overvaluation.</p>

<p>A justice of the peace in Chelsea has no jurisdiction of a complaint against a member of a company of militia in that town for violation of the militia law. Exclusive jurisdiction of such complaint is given to the justices’ com t for the county of Suffolk</p>

<p>The defendant was convicted, in the municipal court of the city of Boston, of keeping a house of ill fame. The indictment alleged that “ Jane Lewis, wife of Andres V. Lewis, on the first day of May, &c., in the absence of her said husband, did keep and maintain a certain house,” &c. The defendant pleaded not guilty. At the trial in the, court below, the judge ruled that the Commonwealth' must prove that the defendant was a married woman, before she could be convicted. A witness was then called, who testified that he knew the defendant’s husband, and that he had not lived with her since she kept the house in question. Another witness testified that the defendant' htd spoken to him about her husband, whom the witness knew personally, and that she had told the witness that her husband did not live with her, and that she hired this house herself. No other evidence was offered to prove that the defendant was a married woman. The defendant’s counsel objected, that this was not competent evidence to prove the marriage; but the judge overruled the objection, and upon this and other evidence in the case, the jury found the defendant guilty. The case came to this court upon exceptions to the ruling of the judge in the court below as to the competency of the evidence to prove the marriage of the defendant.</p>

Assumpsit for services rendered by the plaintiff as a surgeon and physician. It was agreed by the parties that the plaintiff rendered the services set forth in the declaration, while the statute of 1818, c. 113, “regulating the practice of physic and surgery,” was in force, and that he had not previously been licensed or graduated, as was required by that statute to entitle him to the benefit of law for the recovery of compensation.

<p>Debt on a probate bond executed by the defendant’s intestate, Jabez Hatch, as surety of Jabez Hatch, Jun., administrator of the estate of William Gallagher. The action was brought for the benefit of said Gallagher’s heirs, who reside in Great Britain.</p> <p>It appeared at the trial before Wilde, J. that by decrees of the former judge of probate for the county of Suffolk, the said Jabez Hatch, Jun. was ordered to pay to the heirs of said Gallagher certain sums of money, which, though the same were duly demanded, he neglected to pay. The defendant gave in evidence three receipts, signed by R. E. Manners, attorney of the said heirs, in which said attorney acknowledged that he had received the amount aforesaid, at different times, <£ in current bank bills of the Boston banks.” The last receipt contained this clause, viz. ££ a claim for the discount on said bills, and on bills receiv ed ” when the former receipts were given, “ being first made and left with said Blake, to be hereafter disposed of, he reserving every right belonging to the parties interested, and represented by him, to oppose said claim.”</p> <p>The plaintiff was permitted to prove, the defendant objecting to the admission of the evidence, that before and at the time when said payments were made, the banks in Boston had suspended payment in specie ; that at the several times when the receipts were given, specie was at an advance of eight, nine, and ten per cent., and that said Manners refused to receive any part of said bills unless the discount upon them for specie, or exchange on England, should be allowed him ; and that he made out, and left with the defendant, a claim for said discount, the amount thereof to be thereafter ascertained, as mentioned in said last receipt.</p> <p>It appeared that said Manners did not demand specie at the banks on the bills so received by him of the defendant, and that he credited the heirs of Gallagher with the bills at the full amount, and remitted to them that amount in English bills of exchange, which he had received on his own account, and which he charged to said heirs at the market rate when he made the remittance.</p> <p>The judge instructed the jury, that as this suit was for the. benefit of the heirs of Gallagher, the plaintiff’s right to recover depended on the question whether said heirs had lost any thing by the mode of payment resorted to ; and that if they had so lost, the verdict should be for the plaintiff, for the amount of such loss ; reserving the question whether the plaintiff was entitled to recover at all, on the facts proved. The jury returned a verdict for the plaintiff for" $ 197-12.</p> <p>Judgment to be rendered on the verdict, or the plaintiff to he nonsuit, or a new trial to be granted, according to the opinion of the whole court.</p>

<p>This was an action upon a policy of insurance on the brig Gem, in which the plaintiff sought to recover for a total loss. The brig sailed from Philadelphia for Boston, on the 8th of April, 1837. On the evening of the next day, she struck on a shoal, which caused her to leak very badly ; and she was, for that reason, voluntarily stranded for preservation of all concerned. She lay on the inside of Cape May Beach until the 20th of June following, when she was got off, under the direction of the defendants’ agent, and carried to Philadelphia, where she arrived on the 24th of the same June, and was there repaired.</p> <p>On the 20th of April, 1837, the plaintiff wrote a letter to die defendants, abandoning the brig, and claiming a total loss On the next day, the defendants informed the plaintiff that they did not accept said abandonment'. On the 31st of July following, the defendants informed the plaintiff, by letter, that the brig was completely repaired, and ready to be delivered to his or der, at Philadelphia. To this letter the plaintiff made no reply.</p> <p>The policy contained this clause. “ The acts of the assured or assurers in recovering, saving, and preserving the property insured, in case of disaster, shall not be considered a waiver or acceptance of an abandonment.”</p> <p>At the trial before Dewey, J., the plaintiff put his case on the ground that the defendants had, by operation of law, accepted the abandonment by unreasonable delay in getting off and repairing the brig. He admitted, that after the brig arrived at Philadelphia, the repairs were made with due diligence ; but he alleged that the defendants took possession for the purpose of getting her off, repairing her, and restoring her to the owner, and thus discharging their contract; and that as they took possession to get her off, only as a necessary step in the repairs, they were bound to use due diligence as well in removing as in repairing her.</p> <p>The defendants contended, that until the repairs were begun, they were not bound to use diligence and despatch, and therefore that if they were not duly diligent and prompt in removing the brig from the beach, and carrying her to a place of safety, yet this did not evince, nor amount to, an acceptance of the abandonment. They also contended, that there was no acceptance of the abandonment, if the! • measures, in attempting to remove the brig, were such as a prudent owner, uninsured, would adopt The judge ruled, that if the defendants, after the abandonment and refusal to accept it, took possession and control of the brig, hax ing at that time the actual purpose and design of getting her off, repairing, and restoring her to the assured, they were, from the time when they took possession for such purpose and xvitlx such intention, bound to use reasonable diligence as well in getting her off as in making repairs after her arrival in port; and that if they delayed beyond a reasonable time, they made themselves answerable as for a constructive acceptance of the abandonment, and for a total loss. The judge also instructed the jury, that the mere act of entering upon the property for the purpose of recovering, saving, and preserving it, was not to be considered as an acceptance of the abandonment, and that the exercise or this right was not to charge the defendants, because such right was secured by a clause in the policy.</p> <p>There was no evidence of any act done or offered, by the plaintiff or either of the owners, for the purpose of removing the brig from the beach.</p> <p>The defendants contended, that until it should be proved that they took exclusive possession of the brig, for the purpose of getting her off and repairing her, and thus hindered and prevented the plaintiff from cooperating with them, the duty of diligence and despatch did not attach to them, and that therefore the want of such diligence and despatch did not evince, nor amount to, an acceptance of the abandonment.. They also contended that until the commencement of the repairs, there was no such exclusive possession.</p> <p>It was left wholly to the jury to find when the defendants took possession and control of the brig.</p> <p>Much of the controversy, at the trial, related to the fitness of the persons employed by the defendants’ agent to remove the brig, and to the judgment, vigor, and skill of their operations.</p> <p>A general verdict was returned for the plaintiff, and the defendants moved for a new trial because of misdirection in matter of law.</p>

This was an action on a policy of insurance on the brig Lowell, dated November 9th, 1836, effected by “ Elihu Reed for Elias Reed, or whom it concerns,” for two thousand dollars. The writ was sued out and served on the 17th of November, 1837.

<p>Undev the Rev. Sts. c. 90, § 79, which provide that when mortgaged goods are attached, et the mortgagee shall, when demanding payment of the money due to him, state, in writing, a just and true account of the debt or demand for which the property ia liable to him, and deliver it to the attaching creditor or officer,” the mortgagee may include inteiest, as well as principal, in such account. And he does not render his account untrue, by understating the amount of interest, if his securities are not in his own hands, or he has not the means of computing the interest exactly.</p> <p>Where a balance, remaining due on a note, is the debt for which mortgaged goods are liable, the mortgagee may well state, in such account, the single sum to which the debt is reduced. But where a mortgage is on condition to secure several demands described in general terms, a statement of the result, composed of the aggregate of several distinct demands, is not a just and true account.</p> <p>Where goods are mortgaged to secure performance of any other obligation than the payment of money, it seems that the only mode of attaching the goods is by summoning the mortgagee as trustee of the mortgagor, according to the provisions of the Rev. Sts. c. 109, §§ 25, 26.</p> <p>A mortgagee of goods, immediately after they were attached, made a demand and stated an account which were informal and ineffectual, and brought an action against the attaching officer, which he prosecuted for thirteen months, and then became non-suit. Fourteen days before he thus became nonsuit, he delivered to the attaching creditor and officer a just and true account, according to law, of the debt for which the goods were liable, and demanded payment. Held, that this last demand was, under the circumstances, within a reasonable time.</p> <p>In an action of trover, the rule of damages is the value of the goods at the time of conversion, and interest thereon from that time.</p>

This was an action of assumpsit, commenced January 25th, 1838, upon the following agreement made with the plaintiff by the defendants, bearing date January 22d, 1836 : “Know all men to whom these presents shall come.

<p>The holder of a note, who fraudulently procures it to be indorsed by a minor, and after-wards sells it to a person who relies on the validity of such indorsement, is liable to an action by such person, though, at the time of sale, he had no fraudulent intent. Selling the note without erasing such indorsement, or disclosing the minority of the indorser, is tantamount to a direct affirmation by the seller, that the indorsement constitutes a valid contract.</p> <p>Where a broker makes a sale in the usual line of his business, his representations bind his principal, although they are made contrary to the principal’s express instructions; unless such instructions are known to the purchaser. Aliteri in case of particular and special agents.</p> <p>In an action against one for selling a note which he had fraudulently procured to be indorsed by a minor, the plaintiff may give evidence of the declarations, made at the time of the sale, by the broker whom the defendant employed to sell the note, concerning the character of the note and the parties thereto.</p> <p>Where, in the trial of such action, evidence was admitted, that the defendant was a man of sudden impulses, and that, within two or three minutes after procuring such indorsement, he expressed his regret that he had so done ; an exception to the admission of such evidence xvas held not to be well founded.</p>

<p>A decree of distribution, made by a probate court, after such notice as is prescribed by statute, or, if no statute require notice, after such notice as the court, in its discretion, shall think proper to order, is so far conclusive as to protect an administrator, acting in good faith, in conforming to it.</p> <p>A decree of distribution is not to be made-in the general terms, used in the Rev. Sts. c.60, to designate the heirs at law of an intestate, viz. “ his brothers and sisters, and the children of any deceased brother or sister,” &c. ; but the probate court is to ascertain who are the existing individuals entitled to distribution, and to decree distribution to them by name.</p> <p>When a person leaves his usual home and place of residence, for temporary purposes, and is not heard of, or known to be living, for the term of seven years, the legal presumption is that he is dead.</p>

<p>Writ of entry. From the report of the chief justice, before whom the case was tried, at Nantucket, it appears that the demandant claimed title to the demanded premises in his own right, in virtue of an execution in his favor, levied thereon as the estate of Isaiah C. Ray, and that both parties claimed title under Isaiah Ray, father of said Isaiah C. Ray, and brother of Peter Ray, the tenant. The demandant gave in evidence a deed from Isaiah Ray, the father, to Isaiah C. Ray the son, dated September 3d, 1836, and recorded September 21st. The tenant gave in evidence a deed from Isaiah Ray to himself and his wife, of the same premises, to hold for their lives and the life of the survivor, dated May 23d, 1825. This deed was not recorded until June, 1837. The demandant made his attachment on the premises as the property of Isaiah C. Ray, the son, on the 28th of December, 1836; but no notice of the attachment was deposited in the clerk’s office, according to Rev. Sts. c. 90, § 28. The action was entered at the court of common pleas at Nantucket, June term, 1837. Execution issued June 8th, and the premises were seized on- the 9th of June. There was strong evidence, perhaps conclusive, to show that Isaiah C. Ray had actual notice of the prior unregistered deed to his uncle Peter Ray and wife, when he took the deed of his father.</p> <p>It was contended by the tenant, that with such actual notice, he took no valid title, as against the persons claiming under such prior unregistered deed, and that the demandant could obtain no valid title, by attachment, larger or better than the debtor had. But it was ruled, that unless the attaching creditor himself had such actual notice, he was not bound by such notice to his debtor. The tenant then contended, that inasmuch as the plaintiff had not caused notice of his attachment to be given at the clerk’s office, conformably to the statute, his attachment did not operate as a lien on the premises, as against the defendant’s prior unregistered deed, until the seizure of the land on execution, and that if the demandant, as such attaching creditor, had actual notice of the tenant’s prior deed, before taking the estate on his execution, such notice of the prior unregistered deed would be good as against the demandant; and the tenant offered evidence to prove that the demandant had such notice before the levy of his execution.</p> <p>But it was ruled, by a comparison of Rev. Sts. c. 90, § 23, with §§ 28 — 30, that an attachment on mesne process, without notice at the clerk’s office, would create a valid lien, except as against a subsequent attaching creditor, or against a person who should afterwards purchase the estate, for a valuable consideration, and in good faith ; that the tenant was not within the ex ception, and that it vrauld not constitute a good defence to prove, that after the demandant’s attachment on mesne process, and before the levy of his execution, he had notice of the tenant’s prior unregistered deed. The question whether the demandant had. notice of such deed, at the time of the attachment on mesne process, was left to the jury, with directions, if he had, to find a verdict for the tenant, otherwise for the demand-ant.</p> <p>The jury found a verdict for the demandant. If the above directions were wrong in point of law, the verdict to be set aside, and a new trial granted.</p>

<p>The court is not authorized by Rev. Sts. c. 96, § 25, to appoint an auditor, without the consent of both parties, “ to examine vouchers, state accounts,” &c. in an action against an officer for not attaching or levying upon certain enumerated articles of personal propeity, although the articles are small and very numerous, and the exam» ination of the evidence concerning them before a jury, must necessarily require much time.</p> <p>A.n “ account,” within the meaning of Rev. Sts. c. 96, § 25, relates to some matter of debt and credit, or to demands in the nature of debt and credit, between parties, and implies that one is responsible to another on the score of contract or of some fiduciary relation. And the term “ voucher,” designates an account book in which charges and acquittances are entered, or some acquittance or receipt discharging a person, or being evidence of payment.</p>

Assumpsit by the indorsee against the payee and indorser of a bill of exchange drawn, as was admitted, for the accommodation of the drawer. The defence relied on, was that the bill was altered, after indorsement, by extending the time of payment from six to sixty days. The only evidence of the alteration arose from the bill itself, which, as the defendant insisted, was manifest on its face.

This was a libel originally filed in the office of the clerk of the municipal court, by the engineers of the fire department of the city of Boston, under Sts. 1833, c. 151, and 1837, c. 99, regulating the storage, keeping, and transportation of gunpowder,” in said city.

Trespass upon the case, to recover of the defendant the forfeiture incurred under St. 1837, c. 99, for violation of the provisions of St. 1833, c. 151, and of the rules and regulations of the board of engineers of the fire department of the city of Boston, respecting the keeping, having, and possessing of gunpowder.

<p>Bill in equity against Dame, the South Wharf Corporation, George Morey, a member of said corporation, and others, praying for discovery and relief. The bill alleged that the plaintiff had conveyed lands to Dame on certain trusts, and that Dame afterwards, in execution of said trusts, agreed with H. S. Kendall to convey the lands to him, and the plaintiff joined with Dame in conveying the lands to Kendall, who had knowledge of said trusts, upon an express agreement that such conveyance should not affect said trusts, nor the rights of the plaintiff, nor the duties or liabilities of Dame and Kendall ; and that Kendall conveyed said lands to the South Wharf Corporation, the members of which corporation knew o-f the trusts aforesaid, and therefore took the lands subject thereto ; but that Dame, Kendall, and said corporation, had combined, &c., and refused to perform the said trusts. (See the bill more fully set forth, 22 Pick. 55.)</p> <p>The defendant, Morey, demurred to the whole bill.</p>

<p>Assumpsit for money had and received, to recover back the amount of a poll tax and a tax on the personal property of the plaintiff, assessed upon him in the year 1837, by the assessors of the city of Boston, and paid to th<=> mty collector, under protest, in order to prevent a distraining - • me plaintiff’s property.</p> <p>It appeared from the report of Wilde, J. before whom the case was tried, that in the year 1836, the plaintiff was an inhabitant of Boston, but in the month of October in that year, he went with his family to Edinburgh in Scotland, where he lived at lodgings for a short time, and afterwards went to housekeeping, taking a governess into his family for his younger children ; that his principal residence, ever since, had been at Edinburgh, but during a part of each year he had lived on an estate, in the neighborhood of that city, which he had hired for a term of years ; that in July, 1837, the plaintiff came to Boston on private business, where he remained a few days only, and then returned to his family in Edinburgh.</p> <p>It also appeared that the plaintiff, while a boy, was at school in Edinburgh for four years previous to 1813, and on his return to this country in that year, and on numerous occasions since (the last of which was not more than a year or two before his removal, in 1836) he expressed a great predilection for Edinburgh as a place of residence, and a desire and intention to live there, if he ever should have the means to enable him to do so ; that about the time of his departure in 1836, and while making his preparations, he declared to two of his friends his intention to reside abroad, as long as his wife should be pleased with or like such residence ; and that he should stay as long as he could, and if he ever should come back to this country, he should not live in Boston, as he preferred New York or Baltimore ; and that in April, 1837, he requested a friend then in Edinburgh, and about to return to Boston, to make a contract, for two years, with a gentleman in this country, to go out to the plaintiff for the purpose of superintending the education of his children.</p> <p>It further appeared, that in the winter previous to the plaintiff’s removal, he made a contract for the sale of his mansion house and furniture in Boston, but shortly afterwards procured the contract to be annulled, giving as his reason for so doing that in case of his death in Europe his wife might wish to return to Boston ; and before he went away, he let the house and furniture to a tenant, who still occupies it.</p> <p>Several letters of the plaintiff, (the first dated Oct. 27th, 1837, and the others between that day and July, 1838) to his agent in Boston, giving instructions as to his property and directing the sale of his mansion house, if a certain price could be obtained, and declaring his intention not to return to Boston to live, were read to the jury, though the defendants objected to their being admitted in evidence.</p> <p>The judge instructed the jury, that the question for them was, whether the plaintiff’s residence was in Boston, on the 1st of May, 1837 ; that if they were satisfied that the plaintiff went abroad, not for the mere purpose of travelling or for any particular object, intending to return when that was accomplished, but with the intention of remaining abroad for an indefinite length of time, or with the intention of not returning to Boston t<? live, even if he should ever return to the United States, then he ceased to be an inhabitant of Boston for the purposes of taxation there.</p> <p>The jury returned a verdict for the plaintiff, and the defendants moved for a new trial because of misdirection, and also because the letters before mentioned were admitted in evidence.</p>

Assumpsit to recover back money paid'upon compulsion, in discharge of a tax for the year 1837, assessed on the person and personal property of the plaintiff by the city assessors. The parties submitted the case to the decision of the court upon the following statement of facts : The plaintiff, on the 1st of June, 1836, was, and for many years prior to that time, had been, an inhabitant of the city of Boston.

Writ of entry to recover three acres and one hundred and forty rr:ds of land in Sandisfield.

<p>The defendant was convicted in the court of common pleas, on. an indictment which alleged that he, at Egremont, in this county, “ on the fifth day of October in the year eighteen hundred and thirty-nine, with force and arms, about the hour of twelve o’clock in the night time of the same day, a building of one Philo Upson of said Egremont, there situate, erected by the said Philo Upson, for a dwellinghouse, and not completed or inhabited, feloniously, wilfully,, and maliciously, did set fire to, and the same building, so erected for a dwellinghouse, then and there, by the setting and kindling of such fire, did feloniously, wilfully, and maliciously, burn and consume, against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>The case was brought into this court upon exceptions to an order of Cummins, J. overruling a motion, filed by the defendant, in arrest of judgment.</p>

<p>Where one of several tenants in common of the right to dig and remove ore from anotiiei ya land enters and digs, and removes ore therefrom, the owner of the land cannot main tain trespass against him on the ground that he did not first give notice to his co tenants, according to the provision of the Rev. Sts. c. 105, § 7, of his intention to enter, &c.</p>

This was an action of slander, for charging the plaintiff with stealing a deed. The general issue was pleaded and notice given that the defendant would justify speaking the words, by proving the truth of the charge.

Assumpsit to recover pay for 353$ cords of wood, and also pay for cutting the same. The facts, on which the parties submitted the case to the court, were these : On the 6th of September, 1836, the defendant and S. A. Winslow owned certain land, and by their written agreement, of that date, sold to C. Reynolds the wood and timber growing thereon. On the same day, said Winslow conveyed all his right in said land to the defendant.

Assumpsit on two promissory notes given by Henry C. Brown, the defendants’ intestate. The defendants, at this term, moved for leave to file, in set-off, an account for board, clothing and schooling of Abby B. Sutton and Edward A. Sutton.

Writ of entry to recover an undivided third part of a tract of land. The facts on which the question, raised in the case, was submitted for decision, are set forth in the opinion of the court.

Assumpsit upon a promissory note dated June 18, 1831, by which the defendants, George and Harry Bartholomew, jo-nfly and severally promised to pay Wyllis Bartholomew, or bearer, $ 40 by the 1st of April then next, with interest. George Bartholomew was defaulted, and the action was defended by Harry Bartholomew.

Libels for divorce. The first was filed on the 8th of May 1838, and prayed for a divorce from bed and board, alleging an utter desertion by the respondent. While that libel was pending, to wit, in December, 1839, the second was presented in the county of Suffolk, and an order of notice thereon was passed, returnable at the May term 1840, in this county.

. Writ of entry to recover an undivided part of a tract of land m Lenox, which the demandant claimed to hold in common with Charles B. Steel, Charles Worthington and Ira Belden. Both parties to the suit claimed title through Thomas Steel, deceased, the grandfather of the demandant.

<p>Assumpsit. The declaration alleged, and the evidence at the trial tended to prove, a special agreement between the parties, by which the plaintiffs undertook to make for the defendants ten stave machines, and find the materials therefor, for the price of $ 150 each, to be paid therefor by the defendants, and that the plaintiffs made and tendered the same to the defendants, who refused to accept or pay for them. Said agreement not being in writing, the defendants objected that it was within the statute of frauds : but Wilde, J. before whom the trial was had, overruled this objection, and the plaintiffs obtained a verdict. The defendants alleged exceptions to this ruling.</p>

<p>The only facts, in this case, which it is necessary to prefix to the opinion of the court, are these : The county commissioners of Berkshire ordered the town of Adams to make the embankment which caused the injury alleged in the plaintiff’s declaration. Said embankment was thereupon made by an individual, by direction of the selectmen of the town, who paid him therefor by an order on the town treasurer. There was no vete or action of the town upon the matter.</p>

<p>This was a petition for a review of a judgment of the court of common pleas, recovered against the petitioner by default The petitioner alleged that he was out of the Commonwealth, at the time of the service of the original writ, and had no notice of the suit until after the- rendition of judgment. The return of the officer, who served the writ, was, that he had “ delivered a summons to the defendant for his appearance at court.” It also appeared from the record that the petitioner, at the return term, appeared to the action, by attorney, and that the action was continued.</p> <p>The petitioner offered evidence that he left the Commonwealth, previously to the service of the writ, and did not return until after the judgment. The respondent resisted the introduction of this evidence, insisting that the return of the officer showed that he had delivered a summons to the petitioner personally, and that the return could not, on this petition, be disproved ; but that the petitioner’s remedy, if any, was by an action against the officer for a false return.</p> <p>The petitioner contended that the return did not state explicitly that the officer had delivered a summons to him personally ; and that if the return had so stated, yet he was not precluded by law from showing, in support of his petition, that the return was false.</p> <p>The petitioner also offered evidence that the attorney entered an appearance in the original action, at the request of tne petitioner’s brother, who had learned that the action was commenead, and supposed that a continuance for one term would be for the petitioner’s benefit.</p> <p>The respondent objected to the reception of this evidence, on the ground that it was a denial of the record which showed that the petitioner appeared to the action.</p> <p>The evidence, on both points, was received by the court 3 and the petitioner also introduced strong prima facie evidence of a legal defence to the action.</p>

This was an action of slander, and the declaration contained two counts alleging the utterance of similar slanderous words by the defendant, at different times. A verdict was returned for the plaintiff on the first count, and for the defendant on the second. The defendant claimed costs for the travel and attendance of the witnesses examined by him on the trial of the second count, under the provision in Rev. Sts. c. 121, § 16.

<p>The defendant, having obtained a verdict, taxed in his bill of costs 200 miles travel, that being the distance which he had actually travelled to and from his residence in Ithaca, in the State of New York, for the special purpose of attending the court in this cause. To this taxation the plaintiff objected.</p>

<p>Where a mortgage of goods was made, subject to a prior mortgage thereof, and they were attached by the mortgagor’s creditors, and replevied by the first mortgagee, and on the trial of the action of replevin, the first mortgage was decided to be void, and judgment was rendered for a return of the goods to the attaching officer ; a demand on the officer, by the second mortgagee, ten days after the rendition of such judgment, accompanied with an account of the debt for which the goods were liable, conformably to the Rev. Sts. c. 90, § 79, was held to be within a reasonable time, although was more than two years after the goods were attached.</p> <p>When goods are attached, which have been conveyed by one mortgage to two persons to secure a gross sum of money to each, a statement by them to the attaching officer, on their demanding payment of him, is sufficient, under the Rev. Sts. c. 90, § 79, if it set forth the gross sum due to each of them.</p> <p>A debtor, on being called upon by A., one of his creditors, to give security, promised to do so by a mortgage of his personal property : He thereupon directed his attorney to prepare, 1st. a mortgage of his personal property to secure B., another of his creditors ; 2d. a mortgage of the same property, subject to the first mortgage, to secure A. ; 3d. a general assignment of all his property to B., under Sf. 1836, c. 238, subject to the two mortgages : The mortgages and assignment were all executed and delivered on the same evening, in the order in which they were directed to be prepared, A not knowing of the mortgage to B. till he received the mortgage to himself, and having no knowledge of the assignment, until after it was executed and delivered, and never afterwards assenting thereto : The mortgage to B. having been adjudged void, because it was part of the assignment, and in contravention of said St. 1836, it was held that A.’s mortgage was not part of the assignment j that it was valid by the common law ; and that he was entitled to hold the mortgaged property against the attaching creditors of the mortgagor, in the same manner, and to the same extent, as if the mortgage to B. had not been made.</p> <p>Knowledge of facts, by a mere stockholder in an incorporated manufacturing company or bank, is not notice to the corporation of the existence of those facts.</p>

<p>Trespass for breaking and entering the plaintiff’s dwelling-house. The action was commenced before a justice of the peace, and the defendant appeared and pleaded the general issue. It did not appear, by the record of the justice or otherwise, that any suggestion was made before him, or that it appeared to him, that the title to real estate was concerned or was to be brought in question. The justice gave judgment for the plaintiff, and the defendant appealed. On the trial of the appeal, in the court of common pleas, before Warren, J. the defendant offered evidence that the title to the dwellinghouse was in himself and not in the plaintiff. This evidence was rejected by the judge, and a verdict was returned for the plaintiff; whereupon the defendant alleged exceptions.</p> <p>Porter, for the defendant, argued that the course of proceedings, in cases of this nature, had been altered by the revised statutes. Under St. 1783, c. 42, § 2, when the general issue was pleaded before a justice, no evidence was admissible which might bring title to real estate in question. Lynch v. Rosseter, 6 Pick. 419. By Rev. Sts. c. 85, § 2, justices have jurisdiction, concurrent with the common pleas, of actions in which such title may be concerned ; and by § 3, either party may remove the action to the common pleas. By § 4, if the party requesting such removal fails to recognize, &c., the justice shall determine the case. From these provisions, it seems, that as the justice, in the present case, had jurisdiction, it is immaterial whether or not it appeared before him that title was in question. The defendant was not bound to make his whole defence. He might have appeared, pleaded, joined issue, given no evidence, and appealed ; and by § 13, he might have had his cause tried in the common pleas, “ in like manner as if it had been originally commenced there.” (See commissioners’ notes to chapters 82 and 85.) If it had been originally commenced in that court, he clearly might have given title in evidence. By St. 1836, c. 273, § 1, all matter of law may be given in evidence under the general issue.</p>

<p>Assumpsit for money had and received, and on an agreement set forth, with slight variations, in different counts, but in all of them in substance as follows, viz. that in September, 1838, the plaintiff, at the defendant’s request, bought of him a great number of multicaulis mulberry trees, at the rate of twenty-five cents per hill, to be delivered on the ground where they then were, on demand by the plaintiff; that the plaintiff then paid $ 10 in part of the price, and promised to pay the residue of the price on the delivery of the trees ; and that, in consideration thereof, the defendant then promised to deliver the trees to the plaintiff on demand. A demand by the plaintiff was alleged, and also an offer of payment by him, and a refusal by the defendant to deliver.</p> <p>It appeared, at the trial before Wilde, J. that the agreement declared on was made, but not reduced to writing ; that the prce of the trees was more than §50, but that the plaintiff paid §10, as alleged in the declaration; and that the trees, at the time of the agreement, were growing in the defendant’s close, and were nursery trees raised to be sold and transplanted.</p> <p>The defendant objected that the agreement was void by the statute of frauds. The judge overruled the objection, and a verdict was found for the plaintiff. New trial to be had if the judge erred.</p>

<p>A. surety in a bond given by a guardian, on his appointment, for the faithful discharge of his trust, is not liable thereon for a breach of the guardian’s duty in respect to the sale of the ward’s real estate, and the application of the proceeds of the sale, when such sale is made pursuant to a license under the statute of 1783, c. 32, § 5, upon the ground that it will be for the ward’s benefit that the estate should be sold, and the proceeds be put at interest.</p> <p>Where a surety in such bond was appointed judge of probate, and in that capacity decreed an allowance of the guardian’s general account, in which the guardian charged himself with the proceeds of the ward’s real estate ; it was held, in a suit on the bond against such surety, that lie was not precluded, by his decree, from showing, in defence, that the said charge was in fact for the proceeds of real estate sold by the guardian under a license to sell it, and an order to put the proceeds at interest, for the benefit of the ward.</p> <p>Before the revised statutes went into operation, a judge of probate had no authority to license a guardian to sell the real estate of a ward for his benefit, in order to put the proceeds at interest. [But see St. 1830, c. 45.]</p> <p>[Vo guardians, besides those of minors, can now be, (or ever could be,) lawfully authorized to sell their wards’ estate, and place the proceeds at interest, without the previous written consent of the overseers of the poor of the town in which the wards reside.</p>

<p>Trover for a wagon and a hive of bees. The following facts were submitted to the court by the parties :</p> <p>On the 10th of January, 1840, the property in question was mortgaged to the plaintiff by Thomas Flagg, to secure payment of a note of that date, made to him by the plaintiff, for $20-50, payable “ by the first day of July ” then next, and the mortgage was duly recorded. On the 5th of February, the defend ant, Potter, a deputy sheriff, attached said property on a writ sued out by Ballard, the other defendant, against said Flagg, and sold the same on the writ by consent of the parties thereto, within a week after the attachment. Before the sale, the plaintiff was informed that the attachment had been made, and gave the defendants notice of his claim, and also, in their presence, forbade the sale. On the 10th of June, and before the commencement of this action, the plaintiff demanded of the defendants payment of his note, and made to them a statement of his demand, in writing. When the plaintiff gave notice of his claim, and forbade the sale, the defendant, Potter, said he had “ seen the record of the mortgage, and knew all about it.” A nonsuit or default to be entered, according to the opinion of the court on the foregoing facts.</p>

<p>Where the only defect in a warrant, issued by assessors to a collector of taxes, is an omission to direct him to sell distrained goods within seven da*'s, he is justified, by such warrant, in distraining goods, and selling them within seven days, according to law.</p> <p>A demand, by a collector, of payment of a tax assessed on a nor.-resident, who has no agent or attorney within the Commonwealth, is sufficient to justify a subsequent seizure and sale of his goods, if such demand be made at his last and usual place of abode in the town where he is taxed.</p>

<p>If an administrator suffers judgment to be recovered against him before he represents the deceased’s estate insolvent, he must pay the full amount of such judgment, without regard to the assets of the deceased. And if, on demand made upon him to pay such judgment, or to show sufficient property of the deceased to be taken in execu tion to satisfy the same, he neglects or refuses so to do, he and his sureties are liable, on his administration bond, to a suit by the judgment creditor, in the name of the judge of probate, although the deceased’s estate is in fact insolvent.</p>

<p>Where a town has due notice of the application of individuals to the county commissioners for the alteration of a road within the town, alleged, in such application an I in all the procedings thereon, to be a highway, and also has due notice of the proceedings of the commissioners in directing specific repairs to be made on said road by the town, and does not object that said road is a town way and not a highway, until after the commissioners have caused such repairs to be made, upon the neglf.ct of the town to make them as ordered, and after the town is served with notice to show cause why a warrant of distress should not issue against the inhabitants of the town for the collection of its proportion of the expense of such repairs ; a writ of certiorari will not be granted to remove the records of the commissioners, on the ground that the road was a town way, and that they therefore had no jurisdiction. Nor will a writ of prohibition be granted to restrain the commissioners from issuing such warrant of distress.</p>

<p>Writ of entry to recover a parcel of land in Northfield, called the Lyman pasture. The demandants claimed title under the levy of an execution in their own favor against Edwin Moody, on the 16th of April, 1839. The tenant claimed title under a prior levy of an execution against said Moody in favor of Eunice Brooks, and a conveyance from her to the tenant.</p> <p>It appeared at the trial, that in appraising said Moody’s estate in the demanded premises, on the levy of the last mentioned execution, the appraisers deducted therefrom the value of a supposed life estate of a Mrs. Smith, in an undivided moiety thereof ; but that no such incumbrance then existed, as Mrs. Smith, after her marriage, and before the levy or attachment of said Eunice Brooks, had, jointly with her husband, executed and delivered to said Moody a quitclaim deed of all her interest in said premises.</p> <p>The following is a copy of the appraisement which appeared in the return on said execution : “We have set off the Lyman pasture and the swamp lot, as before described, subject to Sarah Smith:, (widow of the late Samuel Lyman) right to the use of one half of the same during her life, appraised at $243-75.” On said execution of the demandants, the same premises were appraised as a fee simple estate, by the same appraisers, at $322-19.</p> <p>It was proved, or admitted, that said Lyman pasture contained twenty-two acres and sixty rods.</p> <p>The tenant was permitted (the demandants objecting thereto) to give evidence, which had come to his knowledge since the levy of said execution, that Arad Lyman had another and different interest in a part of said premises, and that said Moody had a title in fee simple in only eight acres and sixty-two rods of said premises, and only a right to the use of an undivided moiety of the residue thereof during the life of said Sarah Smith. The tenant was also permitted to show, by the parol testimony of said appraisers, that the real value of said Moody’s interest in the demanded premises, as above ascertained, is only $ 170-37. The case was taken from the jury for the consideration of the full court.</p> <p>Such judgment to be rendered as the court shall direct.</p>

<p>This was an appeal from a decree of the judge of probate for the county of Hampden, allowing a certain instrument as the last will of Timothy Dewey. The only question raised in the case was, whether said instrument was “attested and subscribed, in the presence of the testator, by three or more competent witnesses,” conformably to the Rev. Sts. c. 62, § 6. Said instrument purported to have been executed on the 26th of April, 1338, and was signed by Medad Fowler, Josiah Fowler, and Silas Root, as attesting witnesses. The clause of attestation, which preceded tl ; signatures of these witnesses, was thus: “ Signed, sealed, published and declared, by the above of forenamed Timothy Dewey, to be his last will and testament, in the presence of us, who at his request and in his presence have hereunto subscribed our names as witnesses to the same.”</p> <p>At the trial, before Wilde, J. after the testimony of the subscribing witnesses, as hereinafter stated, had been given, the parties agreed that the case should -be taken from the jury and be determined by the court, upon that testimony.</p> <p>Medad Fowler testified that his name, which was upon said instrument, appeared to be his handwriting, but that he had “no recollection any thing about it.”</p> <p>Silas Root testified thai said Timothy called on him and said he had a will, and wished -him to put his name on it as a witness ; that this was said out of doors, and thereupon he and said Timothy went into said Root’s house, where the said Timothy handed him the paper folded, and he signed his name as a witness thereto, said Timothy being in the same room with him. He could not say that said Timothy saw him sign as a witness. Said Timothy’s name was then on the paper, but he said nothing about its being his signature. Said Root believed that said Timothy had the paper in his hand when he first mentioned that he had a will, but the witness did not look at it until he went into the house. The witness said that it occurred to him, after said Timothy went away, that he (the witness) ought to have inquired of him whether it was his signature.</p> <p>Josiah Fowler deposed that said Timothy brought a paper to the house of the deponent’s father (Medad Fowler) which he called his will, and requested the deponent and his father to sign it as witnesses, and not to read it. Deponent thought he did not see said Timothy sign it ; but the deponent and his father signed it as witnesses, without reading it. Deponent did not recollect seeing a word of writing on the paper, which he “ thought, at the time, was not right or as it should be.”</p>

<p>Trespass quare clausum fregit. The plaintiff claimed title to the locus in quo under the will of his father, Ezra Sackett, which was duly proved and allowed in June 1834, and which contained this clause: “ All the real estate which I own I hereby give, devise and bequeath unto my two sons, Charles Sackett, and Roland Sackett” (the plaintiff,) “to be holden by them, their heirs and assigns forever, after all my debts and legacies shall have been paid ; but upon this condition, that no claim shall be made by the said Charles or the said Roland, or their heirs, executors or administrators, or either of them, against my estate, after my decease ; and if either of them shall make any claim, the one making the claim shall have no right by virtue of this will.” The testator also, by said will, authorized his executors to sell so much of his real estate as should be necessary to pay his debts and legacies, if his personal property should not be sufficient for that purpose. To his eight other children the testator bequeathed small pecuniary legacies, declaring the same to be in full of their respective portions of his estate.</p> <p>It was agreed by the parties, that said Charles Sackett made a claim against the estate of the testator, and that it was paid by the executors from the proceeds of the testator’s real estate sold by them under the authority therefor contained in said will. It was also agreed that if, by making such claim, said Charles forfeited his whole interest in the testator’s real estate, and the same vested in the plaintiff, the defendant should be defaulted ; but that the plaintiff should become nonsuit, if the interest in said real estate, which was devised to said Charles, descended to the testator’s heirs at law, or did not vest wholly in the plaintiff.</p>

<p>Assumrsit on two promissory notes, one for $200, and the other for $ 100, given to the plaintiffs by the defendant. One of said notes was made payable to “ the Charitable Association,” without further designation of the payees.</p> <p>The case was submitted to the court on a statement made by the parties, to the following effect: Timothy Robinson and others, and their associates, were made a body corporate by St. 1797, c. 29, (2 Special Laws, 185,) under the name of “ The Charitable Association in the Middle Parish in the town of Granville.” In the preamble of this statute, it is set forth that livers persons in Granville had associated for the purpose of supporting the preaching of the gospel in said parish, and were desirous of being enabled to raise and manage a common fund for that purpose. Before the passing of this statute, viz. on the 1st of June, 1796, the associates thereby incorporated had subscribed certain articles of association, two of which were in substance as follows :■ 1st. That the associates would annually choose a committee of three or more, whose duty it should be to aid and advise Elihu Adkins, trustee of said associates, or his successor in that office : 2d. That said trustee or his successor, with the advice of the advising committee, should have power, and that it should be their duty, at any time when they should find any associate about to remove from the town of Granville, or for any other just cause, to commence a suit against any associate, and collect his note, &c. ; but that such associate, when thus sued, might cause the suit to be stopped, by paying cost and satisfying the trustee, or a majority of the advising committee, “ that the money is safe or, if he should thick the trustee or committee unreasonable in demanding security, he might appeal to the proprietors of the fund, whose decision should be final.</p> <p>- It appears from a book purporting to be the records of said corporation (the plaintiffs) that at its first meeting, March 10th, 1800, it was “ voted, that the advising committee post up notifications, fourteen days, at two or more public places, before the time set for calling future meetings.” It does not appear that the clerk, chosen at this meeting, was sworn.</p> <p>The following votes, &c. also appear in said book : March 12th, 1810. “ Voted that the advising committee shall issue a warrant to the clerk, for the purpose of warning future meetings relative to the fund.” To the entry of the choice of clerk at this meeting, and also at the meeting, April 1st, 1839, is added the word sworn. March 12th, 18.22. “ Voted to accept the report of the committee on the subject of voters, viz. that the original donors are voters ; that all purchasers of the entire estate of a donor, with the understanding of the donor and purchaser, that the purchaser succeed to all rights in the fund, be a voter ; that an heir, in order to become a voter, must be the sole heir, or he must have the consent in writing of all the other heirs that he shall be the sole voter; and the voter shall always be an inhabitant of the middle parish ; that no person, by purchase or heirship, shall be a voter, unless he be, at the time, an inhabitant of the middle parish.” The article in the warrant calling the meeting at which the foregoing report was made, was in these words — “to act on the report of the committee chosen to ascertain who were to be considered legal voters at the meetings of said association.” March 23d, 1835 “ Voted that all persons who now are, and shall hereaftei be legal voters in town affairs in the town of Granville, and that reside in the middle parish in said town, and belong :.i or are members of the congregational society in said parish, and shall have subscribed their names to the constitution of the Charitable Association in said parish, shall be members of said association, so long as they reside in said parish and continue members of said congregational society.” The articles in the warrant calling the meeting at which this vote passed, were “ to choose the officers of said association,” and “ to do all other business proper then and there to be done.”</p> <p>After this vote, twenty individuals signed said articles, attended the meetings and took part in the proceedings and votes of said association, no other vote having passed recognizing them as members. Among these individuals is the person who has assumed to be clerk of the association since September 14th, 1837, also the moderator of two of the meetings at which the clerk is alleged to have been chosen, and also the agent under whose direction this suit is prosecuted. Said agent has a certificate, from said clerk, of a vote appointing him agent with authority to prosecute this suit; some of these individuals, claiming to be members under said vote of March 23d, 1835, voted upon the question of appointing said agent, and also in the choice of the successive advising committees.</p> <p>The trustee of the association, who was chosen in 1839, was not an original signer of the articles of association, and it does not appear how Or when he signed them ; but he was chosen one of the advising committee, in 1821. A majority of the advising committee for 1839, in which year this suit was commenced, and the trustee for the preceding year, by whom the meeting was warned, and also the committee, by whom it was called, became members of the association, if at all, by the vote of March 23d, 1835. The defendant has been a member of the association, and still continues such, if it now has a legal existence.</p> <p>The $ 200 note now in suit was given by the defendant, as a substitute for notes formerly given by his father and brother, on a joint subscription by him and them to the funds of the assonation ; and the $100 note was given for money borrowed of the association.</p> <p>The advising committee gave their advice or consent that the present suit should be commenced, by putting down the names of the persons whose notes were to be secured, and directing tl e trustee to attend to them; but such direction was not given h writing; and the plaintiffs’ attorney appears in this case by direction of the committee whose names are on the record of the association.</p> <p>It was agreed by the parties that the plaintiffs should become • nonsuit, if said committee could not legally authorize said attorney to appear ; or if neither he nor the plaintiffs be legally entitled to prosecute this action ; or if, from any cause appearing from the facts above stated, and from the records and articles of association, notes -declared upon, and act of incorporation, (all of which are part of the case) this action cannot be maintained upon legal principles ; but that the defendant should be defaulted, if the plaintiffs are legally entitled to recover.</p>

<p>A payment or assignment by a debtor, to one of his creditors, is not void as to his othet creditors, under St. 1838, c. 163, § 10, unless it be made by the debtor in contemplation of becoming insolvent and obtaining a discharge under the provisions of. that statute.</p> <p>The stock in trade of a debtor, who was insolvent, was attached by several of his creditors, and he afterwards, on the same day, but not then intending to take advantage of St. 1838, c. 163, nor even knowing there was such a statute, assigned to another creditor dioses in action to secure what he owed him, and also to indemnify him against liabilities incurred on said debtor’s behalf: On the next day, the debtor made application to a master in chancery for the benefit of said statute, and assignees of his property were afterwards duly appointed. Held, that the assignment to said creditor was not void as to the other creditors, within the terms of the tenth section of said statute.</p> <p>In deciding a case stated by the parties, where the statement sets forth the testimony of witnesses, the court must take such testimony to be true.</p>

<p>¿n an action by the indorsee against the maker of a negotiable note, the burden is on the defendant to prove that the note was negotiated after it was due and dishonored ; and that burden is not removed by proof that the note was transferred and delivered to the plaintiff before it was dishonored, but was not indorsed until afterwards.</p> <p>A note payable on demand is not regarded as dishonored within one month after its date.</p> <p>Where a negotiable note, payable on demand, was transferred and delivered by the payee to a third person, within a month after its date, fur a valuable consideration, but was not indorsed to him until two years afterwards ; it was held, in an action by the indorsee against the makers, that they could not set off against said note a demand which was due to them from the payee at the time of the making of the note and of the transfer thereof by delivery.</p>

<p>Writ of entry to recover thirty-three acres of land in Oxford, called the Butler lot. The demandant counted on his own title in fee and in mortgage, and claimed as assignee of two mortgages, one made in 1801, and the other in 1806, to Andrew Sigourney, by Sylvanus Learned.</p> <p>Several questions were raised, at the trial before the chief justice, and were argued at the September term, 1839; but as the case was decided solely on a question of boundary, the facts, on which the other questions arose, are here omitted.</p> <p>It was proved at the trial, that when the said mortgages were made by Sylvanus Learned, he owned several contiguous parcels of land, including the Butler lot, conveyed to him by his father, Ebenezer Learned, in the years 1786, 1789 and 1796, the Butler lot being conveyed in the latter year, by a separate deed.</p> <p>The further facts, on which the decision turned, and the description given of the land, in the two mortgage deeds, are set forth in the opinion of the court.</p>

Libel for a divorce, signed “E. W. Gould, by his attorney, D. Brigham.” The libellant resided in Missouri, and had executed a letter of attorney to Brigham, containing a special authority to prosecute for a divorce, and to sign the libel. By the Rev. Sts. c. 76, § 12, it is provided that every such libel' “ shall be signed by the libellant, if of sound mind, and of the age of legal consent to a marriage.”

<p>Assumpsit to recover expenses "incurred by the plaintiffs in the support of Lucy Malcomh, a pauper.</p> <p>At the trial, before Dewey, J. the parties agreed the following facts : Said Lucy was the daughter of Daniel Chase, who, before the year 1770, resided many years on a farm in the north part of the town of Greenwich, and died there in that year, having acquired a settlement in that town, by such residence. On the 7th of April, 1772, Isaac Powers, whose residence was always in the territory whicli is now Greenwich, was appointed guardian of said Lucy, who was then a minor. In February, 1801, the town of Dana was incorporated, including within its limits the aforesaid farm of Daniel Chase. On the 7th of March, 1791, said Lucy intermarried with Michael Malcomb of Orange, who was an inhabitant of that place in 1783, when it was incorporated as a district.</p> <p>As to certain other facts, concerning which the parties did not agree, the jury were instructed to return an answer to three questions : “1st. Did Lucy Malcomh reside with Isaac Powers, as her home, after the death of her father ? 2d. Did she reside with said Powers, as her home, after his appointment as her guardian ? 3d. Was Michael Malcomh seized of an estate of freehold, situate in Orange, of the clear annual income of ten dollars, he residing thereon and occupying the same, in person, for the space of two years, between the 23d of June, 1789, and the 11th of February, 1794 ?” The jury returned an affirmative answer to the two first questions, but could not agree upon an answer to the third. Whereupon the defendants consented that a verdict should be returned for the plaintiffs on the third question, (i. e. answering it in the negative,) and caused it to be so entered on the cleric’s docket.</p> <p>It was u agreed by the parties, that if the defendants have a right to have the third issue found by the jury for the plaintiffs, or may waive the same, and take a verdict on the two issues found in their favor, then the facts so found are to be considered as agreed by the parties, and the court will render judgment for the plaintiffs or defendants, as the whole facts agreed shall de mand.”</p> <p>It was admitted at the argument, that said Lucy Malcomo left Greenwich at the time of her marriage.</p>

<p>A surety’s cause of action against a co-surety or his representatives, for contribution accrues when, and not before, he pays the debt of the principal.</p> <p>One of two sureties, who has paid the debt of the principal, and files a bill in equity, for contribution, against the heirs of his co-surety, and causes all of them, who are within the reach of process, to be summoned, is entitled, by the Rev. Sts. e. 70, to a decree against them severally for such equal sums as amount, in the aggregate, to a moiety of what he has thus paid, though there are other heirs who are not summoned.</p> <p>If one of such heirs, thus summoned, die pending the suit, his administrator is to be summoned in, and the same decree will be passed against him, that would have been passed against his intestate.</p>

<p>Writ of entry to recover a tract of land in Southborough, called the Bellows farm. The demandants were the heirs at law of Alpheus Fay, and claimed title by descent from him. The tenant claimed title as devisee of said Fay. .</p> <p>- At the trial, before Dewey, J. it appeared that Ebenezer Bellows, on the 26th of March, 1814, mortgaged the'demanded premises to said Fay, to secure payment of certain promissory notes ; and that said Fay, on the 23d of August, 1823, entered upon said premises for condition broken, and, under said entry, foreclosed the mortgage. On the 28th of April, 1823, said Fay made his last will, by which, after certain bequests, he devised to the tenant all the rest and residue of his estate, real, personal and mixed. Said Fay died in October, 1830, and his said will was proved and allowed in the following December.</p> <p>The judge ruled that the demanded premises did not pass to the tenant by the will, and a verdict was returned for . the demandants, subject to the opinion of the whole court.</p>

<p>Assumpsit to recover for services rendered to the defendant’s testator, Ebenezer Sumner, the plaintiff’s father, during eighteen years next preceding his death. Defence, the statute of limitations.</p> <p>The plaintiff, at the trial, before Dewey, J. gave evidence tending to show that the alleged services had been performed, and also to show the value thereof. It was also in evidence that five days before the testator’s death, viz. on the 15th of February, 1837, the plaintiff made a claim on him, and the testator' expressed a willingness to settle with the plaintiff, and thereupon called a meeting of his children to assist in such settlement: That after the separation of the familyon fhe evening of the same day, the testator agreed to meet the plaintiff on the next day and settle with him, and did accordingly meet him and give him a note for $1000, which sum he afterwards told his daughter he was satisfied was due to the plaintiff: That the plaintiff, being afterwards informed that one of his brothers was dissatisfied, carried the note to his father and gave it to him, saying that lie would give it up, arid would not keep it, as it made difficulty in the family. At the same time, he received a paper from his father.</p> <p>There was no other evidence that the testator had acknowledged that he owed the plaintiff, or had promised to pay him, within six years next before the testator’s death, except certain verbal declarations made after October 1st, 1834.</p> <p>The judge instructed the jury, that 'if the note was given up to the testator for the purpose of restoring all matters between the parties to the state in which they were before the execution of the note, the making and delivery of the note to the plaintiff would not avoid the operation of the statute of limitations ; but if the jury should find that the note was given back to the testator for the purpose of leaving open the question of the value of die plaintiff’s services, and not the question of the testator’s being indebted to him, then the giving of the note was competent evidence to take the case out of the operation of said statute, as to the services for which the note was given.</p> <p>A verdict being found for the plaintiff, the defendant filed ex-ieptions to the foregoing instructions.</p>

<p>In an action on a promissory note payable in one. year, “ with nine per cent, interest,” the forfeiture to be deducted, under the Rev. Sts. c. 35, § 2, is only three times the amount of nine per cent, for one year ; that being threefold the amount of the whole interest reserved.</p>

<p>A testator devised to his wile * the Haynes place, with the Pierce lot, meaning to include all my real estate that lies west of the Shirley road, except what belongs to the Bennet place.13 The Bennet place and the Haynes place extended both sides of the road. The testator owned a lot, called the Page lot, the easterly side of which adjoined the westerly part of the Bennet place ; but after he purchased the Bennet place, he removed the fence between that place and the Page lot, and occupied both in common for fifteen years next before his death. Held, that the Page lot did not pass to the wife, by the devise.</p>

<p>Trespass for breaking and entering the plaintiff’s close in Shrewsbury. The defendants pleaded the general issue, and, in defence, gave in evidence, on the trial before Dewey, J. that they went upon the plaintiff’s land, at the time of the alleged trespass, for the purpose of constructing a town road, which had, before that time, been laid out by the selectmen, and accepted by the town. To support this defence, they introduced the records of the town, from which it appeared, that on the 25th of April, 1839, a warrant was issued for a town meeting to be held on the 13th of May following, and that one article in said warrant was, “ to hear the report of the selectmen in an alteration of town road, No. 20, near the house of Daniel Harrington, 2d, easterly to the town road leading by Gershom Wheelock’s house, and accept the same, if they see fit.”</p> <p>Before the issuing of said warrant, Daniel Harrington and others had petitioned the selectmen to lay out a town road between the points mentioned in said article. On the day after said warrant was issued, the selectmen gave notice to the plaintiff and other proprietors of lands over which said road was to pass, of the petition for the laying out of the road, and informed them that the 4th of May was appointed for laying it out, and that they would meet at the house of Daniel Harrington, 2d, at 6 o’clock, P. M., on that day. On said 4th of May, the selectmen laid out said road, and made report thereof to the town at the meeting held, pursuant to said warrant, on the 13th of May. In this report, the selectmen stated, (inter alia) that they had laid out the road over the plaintiff’s land, and had appraised his damages at $ 12-50, “ to be paid by Daniel Harrington, 2d,” (one of the defendants,) “ before said road is opened.” The damages of the other owners of land, over which said road was laid out, were also ordered to be paid by said Harrington, “as aforesaid.” This report was filed in the town clerk’s office by the selectmen, seven days before said town meeting. The entry in the town records was, thai at said meeting, “ the foregoing report was read to the town, and it was therefore voted, that the same be accepted on the following conditions ;' to wit, that the said Daniel Harrington, 2d, shall build the said road, and pay all expenses of the same, and defend the town against all prosecutions ; and that all the selectmen be a committee to oversee the building of said road.”</p> <p>At the meeting at which said report was accepted, and also in the evening following, one of the selectmen tendered to the plaintiff the damages awarded to him.</p> <p>The acts, which constitute the alleged trespass, were done by direction and in presence of the chairman of the selectmen, in the construction of said road.</p> <p>The selectmen, in March, 1839, laid out a road over the same land, and made their report in the same terms as in their subsequent report above stated. That report was accepted by the town ; but as it was not filed in the clerk’s office, according to law, the selectmen, for that reason, laid out the road anew, upon a new petition, as above mentioned.</p> <p>The plaintiff insisted, that the foregoing facts did not constitute a defence ; and the case was taken from the jury and reserved for the consideration of the whole court, under an ■ agreement of the parties, that the defendants should 1 e defaulted, or the plaintiff become nonsuit, as the court should order.</p>

<p>Covenant Broken. The alleged breach of covenant was, that the defendant had neglected and refused to perform an award of arbitrators. The defence was, that no valid award had been made. At the trial, the presiding judge, after all the evidence was introduced, proposed to reserve the question, whether the award was valid, for the consideration of the whole court. A nonsuit was thereupon entered, which was to be confirmed or set aside, as that question should be decided.</p> <p>The instrument of submission was under seal, dated May 26th, 1838; and the terms thereof and the proceedings of the arbitrators under it, so far as the) affected the decision of the cause, are stated in the opinion of the court.</p>

<p>This was a real action for the recovery of land in Holden. The demandant claimed title under a lew of an execution issued on a judgment recovered by him against Francis Thaxter, administrator of the estate of Samuel Whitney. The action, in which said judgment was recovered, was commenced against said Whitney on the 26th of June, 1830, and the demanded premises were attached on that day. Said Whitney died in 1834, pending said action. On the 17th of November, 1835, said Thaxter was appointed administrator of his estate, and, at the following December term of the court of common pleas, became party to said action and suffered judgment to be rendered against himself, as such administrator.</p> <p>Before said action was commenced against Whitney, said Thaxter became interested in the claim which the action was brought to enforce, and the action was commenced and prosecuted for his benefit, in the name of Goddard, the demandant, who had no interest in the judgment that was recovered, but the same, by agreement between him and Thaxter, was to enure to the sole benefit of the latter.</p> <p>When the execution was levied on the demanded premises, the demandant was not present,- but Thaxter acted as his agent, appointed an appraiser for him, and also an appraiser for himself, showed the premises to the appraisers, received possession thereof from the officer, and paid him the fees of the levy.</p> <p>The tenant claimed title to the demanded premises, under a levy of an execution on the 6th of April, 1832, in the lifetime of said Whitney. But the attachment on the tenant’s original writ was not made until after the demandant’s attachment; viz. on the 7th of November, 1830.</p> <p>On these facts appearing at the trial, before Dewey, J. he advised a nonsuit, on the ground that Thaxter, being the sole person interested as creditor in the said judgment recovered by Goddard, could not, as administrator of the original defendant, appear and authorize a judgment to be rendered against the estate of Whitney in his hands, and levy execution on the land in question, and thus defeat the tenant’s levy. The demandant thereupon became nonsuit, subject to the opinion of the whole court.</p>

<p>In an action by the indorsee against the maker of a promissory note which was Indorsed after it was due and dishonored, the indorser is a competent witness to prove that the note was paid before it was indorsed.</p>

<p>Assumpsit by the indorsee against the makers of a promissory note for $447-47, made payable to Thomas Grout, or order, in one year from August 19th, 1837.</p> <p>The case was submitted to the court upon the following report of the evidence given at the trial: The firm of Bailey Poor, & Richardson, on the 20th of June, 1837, commenced an action against the firm of Grout (payee of the note in suit) & Davenport, and caused said Grout to be arrested and held to bail; the property of Grout & Davenport having been previously attached at the suits of their other creditors. Grout afterwards informed the attorney of Bailey & Co. that he had made an arrangement with the attaching creditors to discharge their claims on receiving 75 per cent, thereon; and that he had also agreed with Bailey & Co. to receive the same proportion of their claim, on Davenport’s continuing liable for the remaining 25 per cent. Grout also informed said attorney that Lysander C. Clark, one of the defendants, was to take the goods of Grout & Davenport, and give his note, with the other defendants as sureties, for the reduced amount to be paid to tile creditors. Bailey & Co. also informed their said attorney that they had agreed to receive 7^ner cent., and gave him the names of those who were to be sureties on said note. Davenport agreed to pay to Bailey & Co. the remaining 25 per cent.</p> <p>Grout informed said attorney that the note of the defendants had been made, and requested him to discharge the bail in the suit of Bailey & Co., as he could not obtain possession of said note until certain property should be given up, which had been^ pledged to the bail, and which, by the agreement between Grout and Lysander C. Clark, was to belong to the latter. Said attorney thereupon caused the bail to be discharged; and said action of Bailey & Co. was stopped. The amount of the demand of Bailey & Co. against Grout & Davenport was $597 ‘36, 75 per cent, thereof being $447-02.</p> <p>The attorney of Bailey & Co. testified that he never saw Grout after his bail were discharged, but he supposed that the note which Bailey &. Co. were to receive had been delivered to them that the bail were discharged on the ground that said note was to be given to Bailey & Co. and delivered to them upon the discharge, if it had not already been received by them ; and that the bail would not otherwise have been discharged. He also testified that Davenport had not paid the 25 per cent, as he had agreed to do, and that it was not a condition in the agreement between Grout and Bailey & Co. that Davenport should pay it.</p> <p>Another witness testified, that in the autumn of 1837, Grout was for some time at Templeton, (where the witness resided) and afterwards left that place for one of the Western States, and that he had not seen him since ; that on the day when Grout left Templeton, he delivered the note in question to the witness, talcing from him a receipt to account for it; that when the witness first saw the note, it was then indorsed, “ without recourse to me : Thomas Grout ” ; that Grout wished the W'itness, with the proceeds of the note, to settle with Bailey, Poor, & Richardson, for 25 per cent, of their debt, if he could, and said he wanted the residue to pay his brothers ; that the note remained in the hands of the witness until the spring of 1839, when the plaintiff called on him with an order for it from Grout, and he thereupon delivered it to the plaintiff.</p> <p>The witness further testified that he informed Lysander C. Clark where the note was, and demanded payment of him, after it became due, to wit in December, 1838.</p> <p>Nonsuit or default to be entered, according to" the opinion of the court, on the foregoing report.</p>

<p>Scire facias. The defendant, on the 1st-of March, 1836, was summoned as trustee, in a suit commenced by the plaintiff against D. T. Brigham. At the June term, 1836, of the court of common pleas, the defendant made his answer in said suit, and at the succeeding August term of said court, he was ordered to be discharged. From this order the plaintiff appealed, and brought the original action into this court, at the October term, 1836 ; and at the April term, 1837, the defendant was defaulted, and, as appeared by the record, was “ charged by consent.” Said Brigham was also defaulted, and execution issued against him and the defendant. It appeared, by the return of this execution, that demand was duly made on the defendant, and that he refused to expose any property of said Brigham, of otherwise to satisfy the execution.</p> <p>The present suit was commenced at the April term, 1838, of this court, when the defendant was permitted to make another answer, subject to the opinion of the whole court. At the October term, 1838, the defendant, made a further answer. At the present term, a still further answer was offered by the defendant, setting forth facts which existed at the time of the original answer.</p>

<p>Cn :he trial of an indictment for forgery, the party, whose signature is alleged to be forged, is a competent witness to prove the forgery and also the destruction of the instrument alleged to be forged, although civil actions are pending against him to which his only defence may be the forgery of said instrument.</p> <p>Under the Rev. Sts. c. 138, §§ 11-14, this court has authority, in criminal cases brought here from the court of common pleas and municipal court upon exceptions, to grant a new trial, for other sufficient cause shown, after overruling the exceptions ; or to remand the cause to the court of common pleas, &c., for the purpose, among others, of their hearing a motion for a new trial.</p>

<p>The provision in the Rev. Sts. c. 74, § 5, respecting the. recording of m-i'tgages of personal property, applies only to goods and chattels capable of delivery ; and lot to defeasible or conditional assignments of dioses in action.</p>

<p>The county commissioners, in 1838, upon the application of the town of Worcester, located anew a certain highway, called Summer Street, in said town, and included therein a strip of land then in the occupation of the Commonwealth, by its agents, the officers of the State Lunatic Hospital. The trustees of said hospital thereupon preferred a petition to said commissioners, that a jury might be summoned and empannelled u to alter so much of the said new location of said highway as lies opposite and adjoining to said lands of said hospital.” A jury was accordingly summoned, &c. and returned a verdict making an alteration in said highway, as prayed for by said trustees. This verdict was accepted by the court of common pleas, and the respondents appealed to this court.</p> <p>The land which was included in the highway, as laid our anew by the commissioners, was within the fence that enclosed the estate conveyed to the Commonwealth by S. B. Thomas, in 1830, for the purpose of erecting thereon a lunatic hospital. By said conveyance, said estate was bounded westerly on Summer Street. Said fence was erected after said conveyance, and not on the site of the fence that was standing at the time of ihat conveyance.</p>

Indebitatus assumpsit to recover pay for a quantity of lumber specified in a bill of particulars filed in the case. At the trial, in the court of common pleas, before Cummins, J. the plaintiff offered N. Bemis, Jr. his son, as a witness, who was rejected by the judge, on the defendant’s giving evidence of the plaintiff’s declarations that he and his said son furnished the defendant with the lumber sued for.

<p>A testator, after bequeathing to his wife a portion of his property, added a clause to his will, in which he requested that a person, to whom he had bequeathed nothing, might provide for her a chaise, or other suitable conveyance, and attend her whenever and wherever she might wish to go, for a suitable compensation, if she should desire it. Held, that this was too vague and indefinite to be construed as a legacy to the wife.</p>

<p>This was an appeal by Moses Morton, and his wife Mary Ann, a granddaughter and heir at law of Tyler Perry, from a decree of the judge of probate for this county.</p> <p>Said Perry, on the 30th of October, 1833, made his last will, beginning thus : “ Having disposed of all my real estate, and paid out to my heirs the largest part of their portion in personal estate, in cash, I do make and publish this my last will and testament, dividing the residue in manner and form following.” He then made bequests to his wife, his oldest son, and his said granddaughter, which he declared to be their respective portions in full. Tc his son William, whom he constituted his executor, he bequeathed his household furniture and farming tools ; and $ 100 to a religious society in Athol, to be put on interest, &c. All the money which should be left at his decease, he bequeathed, by the fourth clause in his will, to his said son William, and to his two other heirs at law, viz. Nancy Wheelock, and Clarissa Goddard, to be equally divided among them.</p> <p>The said executor rendered his account of administration, by which it rppeare d that after payment of charges of administration. and all the legacies, except that given by said fourth clause, there remained in his hands $2343.36. Said account was allowed by the judge of probate, and he thereupon ordered the executor to dispose of said balance “according to said will.” The appellants afterwards “ made application to said judge to decree a distribution of the said balance among the heirs at law oí the deceased, as intestate estate ; but the judge decreed and determined that said balance was testate estate, and refused to allow said application.” This appeal was then taken.</p> <p>Before the said account was settled by said executor, the legacy, given by the will to Mrs. Morton, was received and accepted by her husband.</p> <p>It was agreed by the parties, that at the time when the testa tor executed his will, “ his property consisted of a pew in a meetinghouse in Athol, a horse and chaise, various promissory notes against different individuals, and what money he then had on hand : That he sometimes had a considerable amount of money on hand, but that he commonly did not have more thar. twenty or thirty dollars.” At the time of his decease, he had $ 31 only in cash ; but he had promissory notes to the amount of about $2354.</p>

<p>Where.a deed of a lot, in an extensive tract of woodland, described it as (s running south ‘by TVs farm, So far as to include 150 acres it was held that the jury were authorized to extend the line of the land conveyed beyond the southerly line of T .’a farm, where the other boundaries, which were established by satisfactory proof, and the whole description of the granted premises, clearly showed that the recital of TVs farm, as the extent of the southern boundary, was a defective and imperfect description of that boundary.</p> <p>If a grantor of land is not seized thereof when he makes his deed of conveyance, his convenant of warranty does not attach to the land and run with it; and he, therefore, is not liable to an action, by the assignee of his grantee, for breach of such covenant.</p> <p>Where an assignee of a grantee, in an action of covenant against the grantor, avers and proves that the grantor had neither seizin nor title, at the time of his grant, the grantor is not estopped to rely on his want of seizin as a defence to the action on the covenant of warranty.</p> <p>Where facts, stated in a report of the evidence at the trial of the cause, and conceded by both parties, show an objection to the plaintiff’s recovery, which cannot be removed by further proof, the court will consider such objection open, though it was not raised at (he trial.</p>

<p>After one tenant in common has obtained partition by legal process, he may maintain an action of assumpsit against his former cotenant to recover his share of the rent received by such cotenant on a demise by him of the whole estate, before and during the pendency of the process for partition ; although such cotenant appeared and pleaded to the petition for partition that the petitioner was not seized of said estate as tenant in common thereof.</p> <p>A tenant in common of a moiety of an estate mortgaged the same after it had been attached by A. ; and the mortgage was assigned to B. : A. levied execution on a fractional part cf said moiety, and B. afterwards entered and took possession of the full moiety, demised the same, and received the whole rent until A. obtained partition by judgment. B. gave no notice to A. that he intended to hold the estate adversely to him ; nor did he forbid A. to receive the rent t A. made no claim to any part of the rent, until after the validity of his levy was determined on his process for partition Held, that there was not such an actual disseizin of A. .as to prevent his recovering his share cf the rents, in an action of assumpsit against B.</p>

<p>An incoiporated city need not sue in the name of “the inhabitants of the city,” bat may sue by its name of incorporation.</p> <p>In a suit by “ the city of Lowell ” (the corporate name of the plaintiffs) on a bond, the declaration averred that the bond was made “ to the plaintiffs,” by the name of .6< the inhabitants of the city of Lowell.” Held, on demurrer, that the declaration was sufficient, and that the plaintiffs were entitled to judgment.</p>

<p>Br the answer of C. Butler, who was summoned as trustee m this case, it appeared that he was administrator of the estate of John Burgess, and had been ordered, by the judge of probate, to pay $ 56 to Elizabeth Smith, widow of said Dinsmore Smith, the principal defendant, as her distributive share in the estate of said Burgess — the said Dinsmore haying died since this action was commenced.</p>

<p>This was an action on the Rev. Sts. c. 25, § 22, to recovei double damages for an injury received in the plaintiff’s person by reason of a defect in a highway which the defendants were by law obliged to repair. The plaintiff alleged, in his declaration, that he was riding in a wagon, and that by means of a defect in the highway, he was thrown out, and thereby one of his legs was broken, &c.</p> <p>At the trial before the chief justice, the alleged injury was proved or admitted ; but the defendants denied that the highway was defective, and also undertook to prove that the injury was caused by the plaintiff’s carelessness and negligence. Much evidence, on both sides, was given on these two points of de fence, and the jury found a verdict for the defendants. The plaintiff moved for a new trial, on the ground of the rejection of evidence offered by him ; viz. copies, from the records of the town of Weston, of the reports of committees and votes of the town, which are hereinafter mentioned.</p> <p>On the 10th of November, 1834, the defendants voted that *e selectmen be a committee to inquire into the circumstances relating to the accident by which the plaintiff had his leg broken, and make a report thereon at the town meeting in March 1835 At that meeting the selectmen made a report, and the subject, Dy vote of the town, was recommitted to them, with directions that they should report again at the next May meeting. The selectmen, at the May meeting, reported that the plaintiff, on the 15th of July, 1833, was riding in a large chair or couch, placed in the bottom of a light wagon, and when within a few rods of h s house, the wagon wheel struck a stone in the road, and the plaintiff, together with the chair, was suddenly thrown to the ground, but the wagon was not upset; that they had examined the wagon, the chair and the stone, and that, in their opinion, all the circumstances did not render it absolutely certain that the town was liable for damages; but that the plaintiff had a just and equitable claim on the friends of humanity, which ought not to pass unnoticed. After setting forth the condition and character of the plaintiff, his sufferings, and the expenses necessarily attending the injury he had received, the selectmen declared their opinion that something could and ought to be done to meliorate the plaintiff’s condition, and to effect a peaceable adjustment of the whole affair, and concluded their report thus : 16 Your committee have drawn up a subscription, which is herewith presented, and would recommend that a committee, consisting of one person from each school district, be appointed to collect subscriptions for him ; and we appeal to every individual in the town,” &c. The town thereupon “ voted that the report be accepted,” and appointed a committee accordingly to procure subscriptions for the plaintiff’s relief.</p> <p>By a vote of the town, passed May 2d, 1836, the chairman of the committee last abovementioned was directed to ascertain what sums had been or might be collected by them, and that they pay over the amount to the plaintiff, 11 on condition tha: he relinquish all claims against the town for injuries sustained.”</p> <p>At a town meeting, March 6th, 1837, a committee was appointed, by vote, to confer with the plaintiff on the subject of his claim for damages, and was directed to make a report at the next meeting. On the 1st of May following, this committee reported that the plaintiff demanded of the town $1000, as damages, or would “leave it with three men, to be chosen, one by the committee, one by himself, and one by the two first, to say what compensation, if any, he shall receive.” Whereupon the town “ voted to accept the report of the committee appointed to confer with F. K. Dudley, and to have no further action on the subject.”</p> <p>New trial to be granted, if the foregoing reports and votes, or either of them, ought to have been admitted in evidence for the plaintiff.</p>

Covenant broken. The parties submitted the case to the court upon the following facts : In April, 1825, John Buttrick, the father of the defendant, being the owner of a certain farm in Concord, on which he then lived, made his will, in which, among other things, were the following provisions for Hannah, his wife, and Emeline, his daughter, viz. ££ I also give to my said wife, in common with my daughter Emeline, the use of the northeasterly room, bed-room and chamber, in my…

<p>Part performance of an oral contract for the sale of lands, &c., does not take such contract out of the operation of the statute of frauds.</p>

<p>Assumpsit by an indorsee against the makers of a promissory note. The facts of the case appear in the opinion of the court.</p>

<p>Writ of error. The opinion of the court exhibits the whole case.</p>

<p>W. agreed with a town “ to support all the town and state paupers, who have or shall have their legal settlement in said town, for and during the term of five years; to pay all funeral expenses of said paupers, and be at all the expense of transporting and removing ; and to pay all other expenses whatever, that may arise concerning the expense of said paupers, except that of ascertaining their legal settlement.”</p> <p>Held, that W. was bound to pay the expense incurred by the town for the support, in the house of correction in the city of Boston, of a person whose legal settlement was in said town. Held also, that W. was bound to pay the costs incurred by the town, in a • suit by the city of Boston to recover for the support of such person; the town having given W. notice of the claim of said city.</p>

Assumpsit for the use and occupation of a tenement during the months of September and October, 1838. The defendant occupied the tenement during those months, and, before the commencement of this action, tendered to the plaintiff sufficient to pay for such occupation until the 3d of September. The tenement was mortgaged by a former owner thereof, botore it was conveyed to the plaintiff.

Trespass upon the case against a deputy sheriff for not taking sufficient bail on a writ sued out by the plaintiff, on the 30th of June, 1835, against George W. Dixon. It appeared at the trial, that said writ was delivered to the defendant, with directions to attach sufficient property of Dixon, and for want thereof to arrest his body. On the writ was an indorsement subscribed by a justice of the peace, in these words, “ Middlesex ss.

<p>This was an action against a deputy sheriff for not returning a bail bond, in a suit brought by the plaintiff against Savels & Willey. The declaration averred, that the plaintiff sued out a writ against said Savels & Willey, and delivered the same to the defendant with directions to attach their property, and for want thereof to arrest Willey; that the defendant returned on said writ (inter alia), that he had arrested said Willey and held him to bail; that the plaintiff recovered judgment against Savels & Willey, and sued out execution thereon, which was delivered to the defendant for service, and which he returned wholly unsatisfied ; and that the defendant did not return any bail bond with the original writ, nor at any time afterwards, though specially requested so to do within a year from the time of the rendition of the plaintiff’s judgment aforesaid.</p> <p>After verdict for the plaintiff, the defendant filed a motion in arrest of judgment. 1st. Because it is not alleged in the declaration, that a return of non est inventus was made on the execution, that issued on the judgment in the original suit, within a year after the rendition of said judgment, so that an action could be maintained on the bail bond taken in said suit. 2d. Because the declaration does not allege that Willey avoided, or that he was, at any time within a year after judgment rendered against him, without the county of Middlesex. 3d. Because the declaration does not allege that the execution, which issued on the or'ginal judgment, ran against the body of Willey; or that lie could have been legally arrested on said execution, or on the original writ.</p>

<p>An officer, who arrests a judgment debtor on execution, cannot lawfully hold him in cus tody against his consent, in order to procure an interview with the creditor, or hii attorney, for the purpose of negotiating with the debtor, or for the purpose of the creditor’s giving further directions to the officer as to the service of the execution.</p> <p>If a judgment creditor direct an officer to arrest the debtor on execution, but not tt commit him until further orders, the officer is justified in not arresting him.</p>

<p>A motion to quash a writ or dismiss an action, for causes apparent on the face of the proceedings, (except want of jurisdiction in the court,) must be made at as early a stage of the case as is prescribed by law for the reception of pleas in abatement j that is, at the first term at which an appearance is entered by the defendant, and before a plea to the action.</p> <p>Where a plea in abatement was filed at the return term, and was traversed by the plaintiff, but no issue was joined, and the defendant, at a subsequent term, filed a motion to dismiss the action, assigning various causes, and among them the cause assigned in his said plea ; it was held that he had waived the exception taken in his plea, and that his motion was too late.</p> <p>Where a writ of replevin was framed according to the form prescribed by the repealed St. 1789, c. 26, and the officer proceeded in the service thereof, according to that statute, taking and returning a bond from the plaintiff to the defendant with one surety only, and in a certain sum, without causing an appraisement, &c. of the goods replevied, as directed by Rev. Sts. c. 113 ; it was held that a motion to dismiss the action could not be received after the return term at which the defendant appeared, and that the action should proceed to trial, as the bond, taken and returned by the officer, was valid by the common law, and the court had jurisdiction of the parties and of the subject matter.</p> <p>Though it do not appear on the face of a writ, which is directed to and served by a coroner, that he had authority to serve it, yet if the contrary do not appear, and the defendant do not take the exception at the term when he enters his appearance, he cannot take it afterwards.</p>

<p>One partner has authority, without the consent or knowledge of his copartner, to mortgage the whole stock in trade of the firm, to secure a particular creditor of the firm.</p> <p>The rule, that one partner cannot bind his copartner by deed, does not apply where one partner conveys, by deed, property of the firm which he might have conveyed without deed. Hence a sealed mortgage of the goods of the firm, executed by one partner in die name of the firm, binds both partners.</p> <p>Where mortgaged goods were attached, and immediately sold on the writ, by consent of parties, it was held, that the mortgagee, even if he had notice of the sale, was not bound by Rev. Sts. c. 90, § 79, to make demand of payment and present his account of the sum due on his mortgage, before the sale ; and that a demand, &e. thirteen days after the sale, was within a reasonable time.</p>

<p>Indebitatus assumpsit for money paid, &c. The report of the chief justice, before whom the case was tried, was in substance this : The plaintiff was formerly owner of three eighths of a vessel in his own right, and held two eighths thereof in his name as trustee for the defendant. An action was brought against the plaintiff and others, as owners of the vessel, for a demand alleged to be due to one Vinal. In the trial of that action, the plaintiff called the defendant as a witness, who was objected to on the ground of interest; whereupon the plaintiff executed and delivered to him a release from all liability to contribution for any sum which might be recovered in that suit, and the defendant gave his testimony. Vinal recovered judgment in that suit, at the March term of this court in Suffolk, 1836 ; and the present action was brought to recover a part of the amount paid by the plaintiff in satisfaction of that judgment.</p> <p>To maintain the action, the plaintiff offered to prove that af ter the trial of Vinal’s said action, it appearing that the defendant’s testimony was of little importance, the plaintiff proposed to the defendant to give him back the release and take no advantage of it; and that the defendant, in reply, said it would make no difference — he would take no advantage of it.</p> <p>It was admitted that the plaintiff had no other ground to avoid the release, but a subsequent parol promise without any new consideration.</p> <p>A nonsuit was entered, subject to the opinion of the whole court.</p>

<p>Trespass de bonis asportatis. The defendant justified as an assessor of the town of Littleton. It appeared, at the trial before the chief justice, that taxes were duly assessed upon the plain tiff, by the assessors of said town, for the year 1831 and the five following years, and that tax lists were, during each of those years, duly committed for collection to Augustus Wright, who was duly elected and qualified in each of the years aforesaid as collector of taxes for said town : That said Wright died on the 26th of June, 1837, and that all said taxes against the plaintiff remained on said tax lists apparently unpaid : That said Wright’s administrator delivered said tax lists to the assessors of said town for the year 1837, of whom the defendant was one, and that they, on the 16th of October in that year, committed the same, by their warrant in due form of law, to L. White, and in said warrant ordered him to complete thé collection thereof: That said White, after a fruitless demand on the plaintiff for payment, took the property mentioned in the plaintiff’s writ, by virtue of said warrant, and sold the same at public vendue for the payment of said taxes and costs.</p> <p>The ground on which the plaintiff relied to support his action was this : That said taxes had in fact been paid to said Wright, the deceased collector, and therefore that said assessors had no authority, under the Rev. Sts. c. 8, § 39, to commit them to another collector. In order to prove such payment, the plaintiff offered the testimony which is hereafter mentioned in the opinion of the court. That testimony was rejected by the chief justice, and the claintiff submitted to a nonsuit, which was to be set aside, if in the opinion of the court it ought to have been received, and if the action be maintainable.</p>

<p>The levy of an execution on land which is not the judgment debtor’s does not work such a disseizin of the true owner, as will prevent his maintaining an action of tres» pass, without reentry, against the judgment creditor or those acting under him.</p> <p>An execution was levied on land not the judgment debtor’s, being part of a large unenclosed meadow, and the judgment creditor entered thereon two or three times for the purpose of showing the grass for sale, but took no actual possession : He afterwards advertised a sale of the grass, in a public newspaper, as grass growing on his land and caused the same to be sold at auction, at a distance from the land, and the purchaser thereof cut and carried it away — the true owner of the land having no actual notice of the proceedings. Held, that these acts did not constitute such a disseizin or ouster of the true owner, as to prevent his maintaining an action of trespass against the purchaser of the grass</p>

<p>Assumpsit for money had and received. The plaintiff was administrator of the estate of Clement Bascom, and had paid to the defendant, in full, a debt due to him from said Clement, under a belief that said estate was solvent. The plaintiff afterwards represented said estate to be insolvent, and the judge of probate thereupon appointed commissioners to examine the claims of creditors against said estate, and to return to him, in six months, a list of the claims that should be laid before them, with the sum that they should allow on each of them. Claims were allowed and returned by the commissioners, to an amount much larger than that of the assets of said intestate ; and the judge of probate ordered a dividend of about 30 per cent, to ne paid to the creditors by the plaintiff.</p> <p>The present action was brought to recover from the defendant six tenths of the sum paid to him as above mentioned.</p> <p>At the trial in the court of common pleas, before Williams, C. J. it was proved that said commission of insolvency was not returned to the probate office within the time therein prescribed, and that the commissioners in fact allowed the claims, returned by them, after the expiration of six months from the time of the issuing of said commission — no further time for presenting claims against said estate having been allowed by the judge of probate. Whereupon the judge ruled that the plaintiff could not maintain his action, and a nonsuit was ordered, to which the plaintiff alleged exceptions.</p>

<p>Assumpsit to recover the amount of a tax assessed upon the plaintiffs for the year 1838, and paid by them to the city collector under a protest that the tax was illegal, and with a reservation of all the plaintiffs’ rights.</p> <p>The case was submitted to the court upon the following facts: The plaintiffs were incorporated by St. 1830, c. 123. (7 Special Laws, 78.) On the 18th of May, 1831, they purchased a lot of land containing 9000 square feet, and in the deed of that date, conveying the land, was a condition, that the grantees, (the plaintiffs,) their successors and assigns should, within one year, erect on said land a house for public' religious worship. The plaintiffs, in pursuance of a vote to build a meetinghouse, erected a building with a cellar, basement story and second story. The second story was fitted up as a church, with pews, &c. ; the cellar was used for purposes connected with the church, having a furnace, &c. ; and the basement story was made into five stores or shops for trade.</p> <p>The plaintiffs sold said pews, and gave deeds to the purchas ers, in pursuance of the following vote, which was passed December 23d, 1832, and was annexed to the several deeds : “ Voted that the pews in said meetinghouse be sold at public auction, and that the holders of said pews acquire the title to, and consequent exclusive use of, and control over the pulpit, the organ, the southwest room on the lower floor, as a vestry, entrances, &c.; every pew being entitled to one vote, whether owned by an individual or by the proprietors as a corporation.” “ The South Congregational Society in Lowell,” a religious society organized, in 1829, according to law, immediately after the sale of the pews as aforesaid, began to use and occupy said meetinghouse as a house of religious worship, and have so occupied it ever since.</p> <p>In April 1832, the plaintiffs, fearing that the society would be annoyed, on- the sabbath, by a building about to be erected on the adjoining land, and desirous of furnishing a larger passage way than they had for the use of said society — purchased an additional lot of land of about 2200 square feet, and, after the same had remained vacant several years, erected a building thereon, in order to furnish a more commodious vestry to said society, and also to render the property more productive. The basement story of this building was fitted up as a store, and the upper story as a vestry. The six stores, viz. five under the meetinghouse, and that under the vestry, were rented, and the income has ever since been received by the plaintiffs.</p> <p>By Si. 1833, c. 132, (7 Special Laws, 361,) the said society were authorized to assess the pews in said meetinghouse, for the support of public worship, and to defray the expenses incidental thereto. Since the passing of that statute, the society have made yearly assessments on the pews for the purposes aforesaid, and the plaintiffs, as oxvners of the unsold pews, havs been assessed in the same manner as the individual owners, and have paid the taxes, so assessed, out of the income of their said real estate. This income, viz. the rent of the stores, except that which has been paid, as aforesaid, to said society, has been applied towards payment of the debt incurred by the plaintiffs in the purchase of said lands and the erection of said buildings — the whole original cost of which is about $32,000, and about $13,000 of which the plaintiffs still oxve to persons of whom they hired money for building said houses. All the income, received from said stores by the plaintiffs, has been appropriated as abovementioned.</p> <p>The assessors of the city of Lowell, for the year 1838, assessed the plaintiffs the sum of $60, under the head of real estate, for “ six stores under church and vestry.”</p> <p>Defendants to be defaulted, if said assessment was illegal; otherwise, plaintiffs to become nonsuit. ■</p>

<p>Where a husband, by a deed in his own name only, conveys his wife’s land in fee, and she merely affixes her signature and seal to the deed,(t in token of he* relinquishment of all her right in the bargained premises,” her right in fee is not thereby conveyed, and she, after the decease of her husband, may maintain a writ of entry, on her own seizin, to recover the land.</p> <p>The St, 32 H. VIII. c, 28 — which provides that no act by the husband only shall make any discontinuance of the wife’s inheritance or freehold, but that she and her heirs, &c. may lawfully enter thereupon according to their rights — is in force as E part of the common law of this Commonwealth,</p>

<p>Heirs are jointly chargeable as assigns on a covenant of their ancestor which runs with the land that descends to them. Assigns by deed, &c. are also jointly chargeable on a covenant which runs with the land.</p> <p>Where the owner of land, by a covenant which binds his heirs and assigns, engages to do a certain act when thereto requested, a written request to do such act, aa&ossed to all the heirs or assigns, and seasonably delivered at the dwellinghouse of one of them, is sufficient; and if they neglect to do the act, they are all liable to an action on the covenant.</p>

<p>Assumpsit for goods sold and delivered, and for money had and received. There was also a count on a special agreement, to the following effect; viz. that the defendant, on the 28th of April, 1837, being indebted to the plaintiff in the sum of $306, for goods sold and delivered, in consideration that the plaintiff, at the request of the defendant, would accept and receive of the defendant, in payment for said goods, a promissory note made by George C. Whitney for $306, dated February 16th, 1837, and payable in four months to George Whitney, or order, and indorsed by him and by D. M. Whitney, undertook and promised the plaintiff, that he (the defendant) would procure and deliver to the plaintiff the said George C. Whitney’s note for said sum, made and indorsed as aforesaid; that the defendant afterwards procured and delivered to the plaintiff the said George C.’s note for said sum, payable as aforesaid, and purporting to be indorsed by said George Whitney and D. M. Whitney, and that the plaintiff, confiding in the defendant’s undertaking and promise aforesaid, accepted and received said note from the defendant in payment for said goods : yet that the defendant, fraudulently intending to injure the plaintiff, did not perform his said undertaking and promise, but deceived and defrauded the plaintiff in this, viz. that said note was not indorsed by said George Whitney or said D. M. Whitney, but the indorsement of their names on said note was a forgery ; whereby the note became and was of no value to the plaintiff, and he was put to great expense in causing said note to be protested for non-payment by the maker, and giving notice to the supposed indorsers, and in attempting to collect said note by a suit at law against said D. M. Whitney, in which suit judgment for costs was rendered against the plaintiff.</p> <p>At the trial before the chief justice, the plaintiff produced the following letter from the defendant to him : “ Boston, April 28, 1837. Mr. A. Coolidge. Dear Sir. I enclose you the note of Whitney’s, indorsed as proposed, which you will please pass to my credit, and acknowledge the receipt of the same. You will please not let Whitney know you have it. Yours, N. H. Brigham.” It was also proved or admitted, that the plaintiff in fact received the note described in his special count, and that the defendant charged the same to the plaintiff, on his book; that the indorsements of G. Whitney and D. M. Whitney were forged; that the plaintiff, at the maturity of the note, demanded payment of the maker, and gave due notice of non-payment to the supposed indorsers ; that he commenced a suit thereon against D. M. Whitney, on the 12th of July, 1837, and called on the defendant to furnish evidence of the genuineness of said Whitney’s indorsement ; and that the defendant in that suit had judgment against the plaintiff for costs. But it was also admitted by the plaintiff that he had never returned, nor offered to return, said note to the defendant.</p> <p>Upon this evidence, it was insisted by the defendant’s counsel that this action could not be maintained against him : 1 st. Because said letter did not constitute a contract of absolute warranty of the genuineness of the signatures of the maker and indorsers, upon which an action for damages would lie by merely proving that they were not genuine, without giving notice and restoring the note. 2d. That the plaintiff could not regard the contract as rescinded, and recover as for goods sold and delivered, without returning or offering to return the note to the defendant.</p> <p>The judge advised a nonsuit, which was entered, subject to the opinion of the whole court.</p>

<p>A party, who pays a greater rate of interest than is allowed by law, cannot recover back threefold the amount of the interest paid, by an action of trespass on the case, but only by an action of debt or a bill in chancery, as provided by the Rev. Sts. c, 35, § 3.</p> <p>The provision in the Rev. Sts. c, 118, § 42, thatcc when any pecuniary forfeiture or fine is made recoverable by bill, plaint or information, it may nevertheless be sued for and recovered by an action of debt or an action of trespass on the case,” relates only to forfeitures and fines to be prosecuted for in forms adapted to criminal proceedings, where the suit is brought by the Commonwealth, or by a common informer.</p> <p>Where a plaintiff, in an action of trespass on the case, obtained a verdict for threefold the amount of interest taken of him by the defendant, on a usurious transaction, and the action was continued, on the defendant’s motion for a new trial, until two years had elapsed after the cause of action accrued, and judgment was then arrested, on the defendant’s motion, on the ground that the plaintiff should have brought an action of debt — the court refused to grant the plaintiff leave to amend by changing the form of his action, under the provisions of St, 1836, c, 273, § 3.</p>

<p>The provision in the Rev. Sts. c. 58, § 12, that any person may kill any dog, being without a collar, does not authorize a person to convert such dog to his own use ; and a person, so converting such dog, is liable to the owner thereof, in an action of trover.</p>

This action, which was trover for a wagon, came before the court on exceptions to the ruling of Warren, J. in the trial thereof in the court of common pleas. The defendant claimed the wagon by virtue of an alleged sale made to him by Leonard Foster.

<p>A negotiable note made by an infant is voidable and not void ; and if he, after coming of age, promise the payee, that it shall be paid, the payee may negotiate it, and the holder may maintain an action in his own name against the maker*</p>

<p>Trespass upon the case in the nature of deceit. The declaration alleged that the defendants fraudulently sold to the plaintiff divers quantities of meal, as and for linseed meal, which was in fact a mixture of linseed meal and teelseed meal ; the latter being of a quality inferior to the former, and of less value. The action was commenced against G. L. Stearns, H. L. Stearns and G. C. Hall, but the writ was not served on Hall.</p> <p>At the trial in the court of common .pleas, before Strong, J. it was proved or admitted, that the three persons above mentioned were in partnership in the business of manufacturing oil from linseed, at their factory in Medford ; that the selling of linseed meal was within the regular business of said partnership ; that the meal mentioned in the plaintiff’s declaration was sold to him as hereinafter stated ; and that, at the time of the sale thereof, L. Richardson was the foreman of the defendants in their said factory.</p> <p>It was in evidence that teelseed was recently introduced into this country, and that the defendants began to use it in the making of oil, as a substitute for linseed, in the latter part of the year 1837 ; and that they, or some of them, began to mix the teelseed meal with the linseed meal, about the middle of January, 1838 : That said Richardson, about that time, was directed by G. L. Stearns, to mix the two kinds of meal, and that H L. Stearns had said that “ they put in one half teelseed meal, in the meal which they sold ; and that their cattle would not eat the teelseed meal, unless linseed meal was mixed with it That the meal mentioned in the plaintiff’s declaration was sold to him at different times, during a period of several months, as linseed meal, by Richardson or by one of the defendants; that said meal, or portions of it, was a mixture of teelseed and linseed ; but that the plaintiff had no notice that it was not all linseed meal; and that said meal, so mixed, was of less value than clear linseed meal.</p> <p>Among other instructions, given by the judge to the jury, were these : 1. “ That if one of the defendants sold the meal to the plaintiff, such defendant knowing that teelseed meal was of an inferior quality and less value than linseed meal, this knowledge would bind all the defendants, and be the same as if they all knew it. 2. That if L. Richardson, as foreman of the defendants, acting within the scope of his authority, sold the meal to the plaintiff, he (Richardson) knowing that teelseed meal was of an inferior quality and of less value than linseed meal, this knowledge would bind the defendants, and be the same as if the defendants knew it.”</p> <p>A verdict was found for the plaintiff, and the defendants alleged exceptions to the above instructions.</p>

Assumpsit on the following agreement, dated January 1st, 1838 : C£ Whereas, the Second Universalist Society in Lowell are in want of a… Held: according to the provisions of said agreement and that the plaintiff was then chosen treasurer by a majority of the holders of said stock who were present at said meeting, and that he gave his bond with sureties according to the said agreement: That the defendant, though often requested, had refused to pay the amount of his said…