Volume 43 — Massachusetts Reports

<p>This was an action on two policies of insurance. The first was dated March 25th, 1837, for § 1200 on the schooner Meridian, and for $ 600 upon pronerty on board said schooner, from March 27th to December 1st, 1837. The second was dated September 29th, 1837, for $2000 upon property on board said schooner, at and from Hingham, on the 2d of October to the 2d of December, 1837, in the coasting business, with liberty to carry the value of $ 200 on deck, from Hallowell to Hingham. Both policies contained the usual clause of indun> mity against loss by fire.</p> <p>The plaintiff’s ckim was for the loss of current bank bills ol various denominations, issued by banks in this and the neighboring States, and deposited in the cabin of said schooner, and destroyed by fire on her voyage from Hingham to Hallowell, within the time limited by the policies.</p> <p>On the trial, before Morton, J. the plaintiff proved that he was owner and master of the schooner, and also proved the loss of bank bills by a fire in the cabin of the schooner, on the 13th of October, 1837. It was also in evidence that there was merchandise, belonging to the plaintiff, in the hold of said schooner, which was not injured by the fire.</p> <p>The judge instructed the jury that such loss of bank bills, owned by the plaintiff, was within the terms of the policies , and that, in the absence of fraud, the amount insured in the policies had some slight tendency to prove the amount of bills on board the schooner.</p> <p>A verdict was returned for the plaintiff. New trial to be granted if either of said instructions was wrong; otherwise, judgment to be entered on the verdict. The defendants also moved for a new trial, on the ground that the verdict was against the evidence.</p> <p>The case was argued at a former term.</p>

<p>It is a good defence to an action by an indorsee against the indorser of a note indorsed for the accommodation of the maker, that the indorsee received the note as security for the performance of a usurious contract between him and the maker.</p> <p>In an action on a note made and negotiated in another State, the question whether such note is void for usury must be decided by the law of that State.</p> <p>By the law of New York, a note, though given for no more than the amount of money lent, is usurious and void, if the borrower, at the time of the loan, agrees to pay the lender more than egal interest.</p>

<p>Assumpsit by the administrator of the estate of Samuel P. Goodridge, an Indian of the Chappequiddic tribe, against the owners of the whale-ship Euphrates, for the proceeds of a voy age made by the intestate, as a seaman in said ship.</p> <p>From the report of the chief justice, before whom the case was tried at Barnstable, it appeared that the gross amount of the intestate’s lay was $ 382T3 ; but that the defendants had advanced to him for his outfit, and paid to him, and for his account, before he commenced the voyage, and upon the voyage, sums exceeding that amount. The guardian of the Chappequiddic Indians had authorized a Mr. Coffin, of Edgartown, to supply the intestate with an outfit for a whaling voyage, but not for any particular voyage, and said Coffin had delivered supplies to him accordingly. The intestate afterwards went to New Bedford, not then having any supplies for his outfit, and shipped in the defendants’ vessel, the Euphrates, and requested them to furnish his outfit, as an advance upon his lay, which they did. Further advances were made to the intestate, during the voyage, by the officers of the ship.</p> <p>The defendants had no express notice that the intestate was a Chappequiddic Indian, until after the vessel had sailed, when such notice was given them by the guardian, by letter dated May 23d, 1834 ; and afterwards, on the 10th of April, 1835, the guardian called on one of the defendants, who was also agent for the others, and informed him that they must accomt for the intestate’s lay with him, (the guardian,) — and the defendant? (hen informed the guardian that they had furnished an outfit and made advances "to the intestate, to a large amount, before they had any notice that he was a Chappequiddic Indian.</p> <p>It was admitted by the plaintiff, that advances were made to Goodridge, the intestate, by the defendants, in such a manner as would bind him, if he were competent to act for himself; and that the guardian consented that the intestate might go tc New Bedford, and ship for a whaling voyage. But neither the guardian, nor the aforesaid Mr. Coffin, went with the intestate Before the intestate shipped for the voyage, he had spent, or in some way disposed of, the outfit furnished by said Coffin ; and he died on the voyage.</p> <p>The question, on these facts, was, whether Goodridge, being one of the Chappequiddic tribe of Indians, and recognized as such, was competent to act for himself; or whether the supplies and outfit furnished to him by the defendants, before sailing, and by the officers during the voyage, were made rightfully, or in their own wrong.</p> <p>A verdict was taken for the plaintiff, by consent, subject to the opinion of the whole court on the above question reserved. Judgment to be rendered on the verdict, if the plaintiff, as administrator, is entitled to recover; otherwise, the verdict to be set aside and the plaintiff to become nonsuit.</p>

<p>The defendant was convicted, before a justice of the peace, of an assault and battery, and on appeal to the court of common pleas, was found guilty by the jury. He thereupon filed a mo tion in arrest of judgment, because it did not appear that the papers used on the trial were true copies of the proceedings before the justice. This motion was overruled and the case brought into this court upon exceptions.</p> <p>The papers sent by the justice to the court of common pleas consisted of a complaint against the defendant, a warrant thereon, the officer’s return of service, the justice’s judgment, and a statement that the defendant appealed therefrom and entered into recognizance, with sureties, to prosecute his appeal. But the justice did not certify that said papers were “copies ” of the conviction and other proceedings in the case.</p>

This was an indictment for malicious mischief, which alleged that the defendant, “ at Marshfield, in said county, on the thirteenth day of July, 1840, did wilfully, maliciously and secretly, in the night time, destroy and injure two lobster cars, two brass locks attached to said cars, and two cables, by which said cars were moored and fastened, and three hundred lobsters contained in the cars aforesaid, all being the property of one Francis Washburn.” At the trial before…

On the trial of the defendant, in the court of common pleas, before Strong, J. for an assault and battery on Lemuel Briggs, it was proved that the defendant, with another man, entered Briggs’s close and was using his grindstone, when Briggs went to them, and repeatedly ordered the defendant to go from bis premises, and the defendant repeatedly told him he would not go, but would remain there as long as he pleased.

<p>Trespass for entering woodland in Wareham, and cutting wood there growing. The plaintiff claimed the land under a mortgage deed, dated October 17th, 1794, from David Perry to Roland Leonard & Co. conditioned to be void upon the payment of £ 12-15, on or before April 17th, 1795, with lawful interest, and eighteen shillings for expenses. There was evidence tending to show that there formerly existed a partnership between Roland and Ichabod Leonard ; but the witnesses could not say whether the common name of the firm was Roland Leonard & Co. or Roland and Ichabod Leonard. The plaintiff then gave in evidence a copy of a deed from Roland Leonard and Ichabod Leonard to the plaintiff and Daniel Howland, Jr. dated December 15th, 1819, purporting to be a conveyance of the woodland in question.</p> <p>It was in evidence that David Perry, the mortgagor, and his son and heir Salathiel Perry, remained in possession until 1818 or 1819, and that neither the mortgagees, nor any persons under them, had entered on the mortgaged premises, for condition broken, or otherwise, for more than twenty years from the time the debt, secured by the mortgage, became due.</p> <p>The chief justice, before whom the case was tried, proposed to instruct the jury, that the continued possession of the mortgagor and his heirs for such a length of time, without entry or claim by the mortgagees, constituted a presumption in fact that tiie mortgage debt was paid, and, if so, that the plaintiff could not recover in this action. The plaintiff thereupon submitted to a nonsuit, subject to the opinion of the whole court.</p>

This was an action on the Rev. Sts. c. 104, §§ 2, 4, to recover possession of premises alleged to be held by the defendant unlawfully and by force, and was submitted to the court on the following facts : The defendant conveyed the demanded premises, with other real estate, to Dan Wilmarth, by deed of mortgage, dated September 1st, 1837, which deed authorized said Wilmarth, or his assigns, to sell so much of the estate therein described as might be necessary to pay the debt…

<p>Writ of right, in which was demanded one fourth part of a corn-mill, and appurtenances, situated in Pembroke. The demandants counted on the seizin of their ancestor, Benjamin Barker, within forty years.</p> <p>The following is the report of the evidence at the trial : Said Benjamin Barker died in 1837, and the demandants are his only heirs at law. On the 10th of April, 1787, Abel Baker, by his deed of that date, duly acknowledged and recorded, conveyed to said Benjamin one fourth part of the mill in question, and said Benjamin thereafterwards was in actual possession of the same until January 29th, 1796, when he conveyed one eighth part of said mill to Thomas Turner. The only evidence tending to prove any actual possession by said Benjamin after his said conveyance to Turner, was, that in 1820 or 1821, the mill having been consumed by fire, the said Salmon and others (the tenants) were on the site and making arrangements to rebuild, when said Benjamin, being there present with them, forbade their rebuilding ; and that, about ten years before the trial, he was at the mill, and declared to the person who then tended it, that he owned one eighth part of the mill privilege.</p> <p>The tenants claimed to hold the demanded premises under a deed from David Stockbridge, as guardian of Simeon McFar-lane, dated January, 1820, purporting to convey the whole mill and appurtenances. It was agreed by the parties, that said Stockbridge was duly licensed to sell said premises; that he had conformed to law in the sale thereof; and that said McFailane had a good title in fee simple to seven eighth parts of the said mill, at the time of said sale. It was proved or admitted that Isaac Barker, brother of said Benjamin, (the demandants’ ancestor,) conveyed the remaining eighth part to said McFarlane, by deed dated February 16th, 1810, and duly acknowledged and recorded. No deed or copy was produced by which said Benjamin or any other person conveyed said remaining eighth part to said Isaac Barker. But the widow of said Isaac testified, that about the time when said Benjamin sold one eighth part of the mill to Thomas Turner, said Isaac agreed to buy one eighth part thereof of said Benjamin, and that he was to pay fifty dollars therefor; that she understood, at the time, that said Isaac had an account against said Benjamin, and that when said Isaac afterwards went for his deed, said Benjamin would not give a deed unless said Isaac would pay him the money ; and that said Isaac then and afterwards, until he sold to said McFarlane, received toll from said mill. A daughter and a son of said Isaac Barker testified, that about ten years before the trial, and after the death of said Isaac, on said daughter’s asking said Benjamin if her father had paid him for the mill, he answered, “ Yes, but I never gave him a deed.”</p> <p>Said Benjamin Barker, during the last thirty years preceding his death, resided about half a mile from said mill ; and said Stockbridge testified that at the time of the sale of the mill by him, as above stated, he heard no claim made by said Benjamin, or by any other person, to any portion thereof. The auctioneer also testified that said Benjamin was at the auction when the mill was sold by said Stockbridge, and that he heard no objection made to the sale.</p> <p>The tenants received the whole of the toll ever after their purchase of the mill, and there was no evidence that said Benjamin ever had any actual possession of the mill, or received any toll, for more than forty years before the commencement of this action.</p> <p>It was agreed by the parties that the court might draw all inferences from the facts above reported, which a jury might draw, and that the tenants should be defaulted, or the demand-ants become nonsuit, according to the opinion of the court.</p>

<p>Trover for twenty cords of wood and thirty bushels of charcoal. At the trial in the court of common pleas, before Strong, J. evidence was given that in 1838 James Ames sold the wood, standing on his land, to Galen Howard, Jr. and George L. Ed-son, who cut the same and made part of it into charcoal, and deposited twenty or thirty cords thereof, together with the charcoal, on the land of Barnum Hill. The plaintiff, as deputy sheriff, attached said wood and charcoal, on the 12th of June, 1839, on a writ in favor of B. B. Howard against said Galen Howard, Jr. and George L. Edson, but did not remove the same nor take them into his custody. He, however, caused the attachment to be recorded in the town clerk’s office, pursuant to the Rev. Sts. c. 90, § 33. The return on said writ was, that the plaintiff had “ attached all the wood and coal belonging to the within named G. Howard, Jr. and G. L. Edson lying on a lot of land belonging to Barnum Hill, situate in Bridgewater, and all the right, title and interest to any and all property on the premises.” The defendant objected that this was not a valid attachment, as the property attached did not come within the provision of the revised statutes. This objection was overruled by the judge.</p> <p>There was evidence that after the attachment was made, and before judgment was rendered in the action in which it was made, the defendant, with the assistance of the abovenamed James Ames, made an equal division of said wood and charcoal, and took and converted to his own use one half thereof, leaving one half for the plaintiff. This was done by the defendant under a claim to half of said property, arising from a sale thereof proved to have been made to him by said Galen Howard, Jr. before the said attachment.</p> <p>It was also in evidence, that before the said division of the wood and charcoal, and after the defendant had purchased said Galen’s property therein, and after the attachment, the defendant, at a place two or three miles distant from the wood, &c., demanded of said G. L. Edson, B. B. Howard, (the attaching creditor,) and the plaintiff, severally, a division of the wood, &c. and his portion thereof—which demand was not complied with.</p> <p>Judgment was recovered in the action in which said attachment was made, at the December term 1839, of the court of common pleas, at Plymouth, and execution thereon was imme diately issued and put into the plaintiff’s hands, who within thirty days seized and sold thereon the remaining half of the wood, &c. and applied the proceeds in part satisfaction of the execution.</p> <p>The defendant contended that he rightfully took a moiety of the wood, &c. and as the plaintiff had taken and sold the other moiety and applied the proceeds towards payment of the execution, he was not entitled to any more, and could not maintain this action. But the judge instructed the jury that the plaintiff, by the attachment, had a right to the possession of the whole property, as well the undivided half of the defendant, as the undivided half of Edson, until the sale on execution, though he could sell the undivided half of Edson only ; and that the taking by the defendant was a violation of the plaintiff’s right of possession, and entitled him to maintain the action. The jury found a verdict for the plaintiff, and the defendant alleged exceptions to the above several opinions and directions of the court.</p>

Writ of dower, containing six counts describing six several parcels of land in Dartmouth, the third part of each of which the said Eunice demanded as her dower, of the endowment of David Thatcher deceased, heretofore her husband.

Assumpsit for money had and received by the defendant’s testator, Jonathan Swift, and for money paid for the use of said testator. The action was brought to recover of the defendant, as executor, a moiety of the amount paid by the plaintiff on two promissory notes signed by the testator and by the plaintiff. One of said notes was in these words: “ October 25th, 1831.

<p>Assumpsit on the following bill of exchange accepted by the defendant. “ New Bedford, March 7th, 1838. Thirty days from date, value received, please pay to the order of Benj. C. Ward five hundred dollars at East Bridgewater Bank, and place the same to my account, and oblige yours, Wm. H Crocker. To Mr. Seth Allen.”</p> <p>At the trial, the presiding judge refused to permit the bill to be given in evidence, until the plaintiff should explain an alteration therein, 'which was apparent on inspection. The plaintiff then introduced Eliphalet Cushman as a witness, who testified that the plaintiff presented the bill to the defendant, on the 23d of March, 1838, and read to him the first line of it, and asked him if it was right, and that the defendant said it was correct and should be paid ; and that the plaintiff need not send it to the bank at Bridgewater, for collection, but that it should be paid at New Bedford : That the plaintiff “ read the bill to the defendant as it now reads, and laid it down on a bench before him.”</p> <p>The bill was then read to the jury, and the plaintiff rested, his case.</p> <p>The defendant contended that the plaintiff had practised a fraud upon him in procuring said acknowledgment and promise ; and also that the consideration of the transfer of the bill to the plaintiff was, in part, the stifling of a criminal prosecution; and. the following facts were stated by said Cushman, on his cross-examination by the defendant’s counsel.</p> <p>Said Cushman took the bill, on the 16th of March, 1838, in its present form, with the indorsement of the plaintiff’s rame thereon, and on the next day presented it to the plaintiff, and asked him if it was correct. The plaintiff told him that the bill had been altered from three to thirty days, after he had indorsed it. The plaintiff and the witness then agreed to say nothing about the matter, till the witness should return from a short journey he was about to take. He returned on the 21st of March, found Crocker, the drawer, and took him to the plaintiff’s house, where the plaintiff told Crocker that the bill had been altered ; whereupon the plaintiff and Crocker went into a room by themselves, and the plaintiff soon returned, leaving Crocker behind, and told the witness that Crocker had acknowledged that the time had been altered in the bill, from three to thirty days. The witness then told the plaintiff that he would not leave Crocker, until he had security ; but said nothing about an arrest. The plaintiff then went into the room where Crocker was, and soon returned and said he (the plaintiff) would be responsible for the $ 500, until the next day, at 10 o’clock. At that hour, on the next day, the plaintiff, the witness, and Crock-er, came together, and after sundry proposals and offers by Crocker and the plaintiff, which the witness rejected, it was agreed that the plaintiff should give the witness a note for $ 250, and that Crocker should give him a draft on his brother Edward Crocker for $ 500, accepted by said Edward, and that the witness should give up to the plaintiff the bill now in suit. This. agreement was executed on the same day; and it was further agreed among the parties thereto that Wm. H. Crocker should not be exposed, and that nothing should be said about the alteration of the bill. The witness, during these negotiations, made no claim on the plaintiff as indorser of the bill, but considered him discharged by said alteration thereof.</p> <p>When the bill was carried to the defendant, as before mentioned, the plaintiff and the witness called him out of his store</p> <p>into a mechanic’s shop, but did not tell him for what purpose, nor say any thing to him about an alteration in the bill, or any thing that had taken place. The parties were together not more than two or three minutes ; and the witness believed that the defendant did not take the bill into his hands.</p> <p>On reexamination by the plaintiff’s counsel, the witness said that when the plaintiff gave him the $ 250 note, it was done to save Crocker from being exposed, and that the plaintiff might obtain pay from him of other demands. The witness understood at the time, that the plaintiff was on other paper of Crock-er, and that Crocker made over to him, for his security, bills which Crocker had against several other persons. The plaintiff told the witness that he gave him the said note, “ that he might get his pay on his demands against Crocker, and to prevent him from being arrested.”</p> <p>The witness also said that it was after the plaintiff gave him the $ 250 note, and after the other papers were delivered, that it was agreed that ,it must be kept private ; but at the same inter view. He “ believed nothing had been said before about keeping it secret.” Crocker left New Bedford on the 24th of March, 1838. On the 21st of March, the witness told one person, confidentially, of the alteration of the bill, and that person told it to others, so that the witness heard of it several times before ne obtained the $250 note, &c. The defendant, at this time was with Edward Crocker, and in the same shop with him, in New Bedford.</p> <p>Edward Crocker, brother of William H. Crocker, was called as a witness by the defendant, and testified that in conversations between the plaintiff and the witness, on the 25th and 26th of March, 1838, the plaintiff said that when the bill was presented to him by Cushman, it had been altered from three to thirty days, and that he gave the note for $ 250 to hush the matter; and that Cushman threatened to prosecute Wm. H. Crocker. He further testified that he sold his stock in trade to the defendant immediately after the above mentioned affair of Wm. H. Crocker, and had since acted as the defendant’s clerk, and was not concerned in business with him : That the defendant is brother-in-law of Wm. H. Crocker, but, as the witness believed, had never acted as clerk for him.</p> <p>It was proved or admitted, at the trial, that the plaintiff indorsed the bill now in suit for the accommodation of the drawer.</p> <p>The jury returned a verdict for the plaintiff, and the defendant moved for a new trial on the ground that the verdict was against law and evidence.</p>

<p>Assumpsit on a promissory note, dated February 1st, 1837, for $ 5000, payable to the defendants’ own order in eight months, and indorsed by them in blank. Before maturity, viz. September 12th, 1837, $4000 were indorsed in part payment of the note. The note came into the hands of the plaintiff after it was overdue.</p> <p>From the report of Putnam, J. before whom the case was tried, it appeared that the plaintiff objected, that the defendants had barred themselves from making any defence on the ground that the note came into the plaintiff’s hands as a dishonored paper, or overdue ; because it was a note payable to the defendants’ order and indorsed by them, and so tantamount to a note payable to bearer. But this objection was overruled.</p> <p>The defendants then proved that the Franklin Bank held this note. It was found by the cashier of that bank, on the 18th July, 1837, among the notes discounted, in an envelope containing these memoranda : “ Stock $5000. Feb. 1st, 8 ms.—• $4000 indorsed Sep. 12—5 shs. Hancock Bank. 15 shs. Protection Ins. Co. 12 do. La Fayette Bank. See vote Sep. 12, 1837 — Directors’Records. See vote Feb. 10th, 1838.” The cashier explained the writing on the back of the envelope to mean, that the note had been discounted by the bank for $ 5000 ; that $ 4000 were indorsed 12th September ; that five shares of the Hancock Bank, 15 shares of the Protection Insurance Company and twelve shares of the La Fayette Bank were given by the defendants as collateral security for the payment of the note.</p> <p>By the vote of February 10th, referred to in said envelope, the directors ordered the cashier to pass out the note to Elijah D. Harris. In a week or ten days after that vote was passed, a man who was not personally known to the cashier came to the bank for the note, which the cashier gave up to him, supposing that he (the cashier) was delivering it to the order of said E. D. Harris. The man paid to the cashier $ 1000, in liabilities of the bank, and interest; and the cashier gave him the note, and kept the collateral security in the bank. But the fifteen shares in the Protection Insurance Company were attached as the property of the bank, by Lemuel Brackett, a creditor of the bank, before the note was passed out of the bank to the supposed verbal direction or order of Harris.</p> <p>It appeared that the defendants had a general account with the bank, but that the stock before mentioned, as the cashier testified, was pledged or transferred specially towards the payment of this note.</p> <p>In February, 1838, the La Fayette Bank shares were worth ' nothing : The five shares in the Hancock Bank were before that time applied towards the payment of the $ 4000 which were indorsed ; and the fifteen shares in the Protection Insurance Company, at the time when they were attached, were worth from $ 30 to $ 90 a share, being more than sufficient to pay the amount then due on said note. But those shares afterwards fell greatly in value, and in May, 1838, were actually sold for $ 6 22-50. The transfer of these fifteen shares to the bank by the defendants was absolute in form ; but it was testified by a witness, and there was other evidence tending to prove, that they were in fact put into the hands of the officers of the bank as collateral security for the payment of the note now in suit; and the witness stated that the note and the collateral security were to have been given up to the defendants, or their order, on settlement of the same ; and that the note was not to be separated from the collateral security and given to any third person, unless with the consent of the defendants.</p> <p>There was evidence tending to show that the note was obtained by one Homer from the cashier, without the knowledge or consent of the defendants ; without the authority of E. D. Harris, and without the collateral security; that Hdmer sold the note to one Howland ; and that this suit was brought by the authority or for the use of Howland. But the cashier testified expressly that he should not have delivered the note to the man who called and inquired for it, unless he had so conducted himself as to induce him (the cashier) to suppose that the man was authorized by Harris to receive the note.</p> <p>The defendants rested their defence on two grounds : 1st. That the plaintiff did not come honestly by the note, and could not maintain an action as the indorsee thereof. 2d. If he could maintain the action, yet as the note was dishonored when the bank passed it over, the defendants were entitled to make the same defence against the plaintiff which they could make if the suit were in the name of the Franklin Bank. 3d. That the bank had received the collateral security, viz. the fifteen shares in the Protection Insurance Company, and had suffered the same to be attached on mesne process and afterwards to be sold on execution in favor of said Brackett against the bank, which shares were appropriated to the use of the bank, and were, when they were attached, worth more than enough to pay all the money due upon the note now in suit.</p> <p>The defendants offered in evidence a copy of the execution of Lemuel Brackett against Franklin Bank, dated May 9th, 1838, and certified by C. A. Parker, Clerk, and by A. Ward, Esquire, chief justice, of the court of common pleas in Suffolk. This was admitted by the presiding judge, though the plaintiff objected thereto and insisted that a copy of the judgment, on which said execution issued, should be produced before said execution could be admitted. The judge also admitted in evidence (the plaintiff objecting thereto) a copy of the officer’s return, on the original writ of said Brackett against said bank, that said fifteen shares in the Protection Insurance Company were attached on the 20th of September, 1837 —it being the paper which was left at said company’s office, and produced in court by S. Wheeler, secretary of the company.</p> <p>The value of the shares, when they were sold and also when they were attached, was proved by the testimony of said Wheeler.</p> <p>E. D. Harris was examined for the defendants on interrogatories, and the plaintiff objected to two of the interrogatories, and answers, viz. “ Whether or not did you intend to receive said note and collateral securities from said bank before you had acquainted the promisors with the arrangement, and obtained their consent ? Answer. I did not. That was a part of the condition. I did not know but that the promisors might raise objections to the payment of the note.</p> <p>“ Whether or not would you have taken said note from said bank without the collateral security given therewith to secure the payment thereof, and without first obtaining the assent of the promisors to the arrangement ? Answer. I should have not.”</p> <p>This objection was overruled.</p> <p>The jury were instructed, that inasmuch as the defendants , admitted their signatures as promisors and indorsers, the plaintiff, by the production of the note, made out a prima facie case, which was sufficient, unless rebutted by the defendants. That if the plaintiff obtained possession of the note from the bank, through Howland and Homer, by fraud or mistake, then he was not to be considered by law as a lawful holder and was not entitled to maintain this action. But if the jury should find that the plaintiff was a legal holder, yet if they should be satisfied, upon the evidence, that the fifteen shares in the Protection Insurance Company were transferred by the defendants as collateral security for this note, and that the bank had suffered the same to be attached on mesne process and levied on execution by Brackett against the bank, that the bank were not by law entitled to recover the note, if at the time of the attachment these shares were worth enough to pay the note ; as the plaintiff had no better right to recover, than the bank would have if the suit were brought in the name of the bank ; it having been proved that the note was passed out of the bank after it became due and was dishonored.</p> <p>The verdict was for the defendants, and the plaintiff moved for a new trial because of the instructions aforesaid and of the admission of evidence as aforesaid, which, he submits, should have been rejected.</p>

<p>The crew of a ship, bound on a whaling voyage, signed the shipping paper, which is usual in such cases, and which contained this clause — “if the crew or either of them is prevented, by sickness or death, from performing said voyage in said ship, he or they, so falling short, shall receive of his lay or share in proportion as the time served on board is to the whole time said ship is performing her voyage” : Eight months after the commencement of the voyage, a seaman joined the ship and signed said shipping paper, and was discharged five months before the voyage was terminated. At the time of his discharge, the master gave him an order on the owners, for “ the net amount of his share of oil, See. according to his services on board said ship, agreeable to his contract specified on the shipping paper of said ship.” In an action by the seaman for his share of the oil, &c. obtained by said ship, in which he claimed the whole amount, as if he had performed the whole voyage, it was held that the defendants might prove, by parol evidence, that the plaintiff, when he was discharged from the ship, understood that he was to receive, and agreed to receive, such part of his lay or share, as his time of service bore to the whole voyage — such evidence showing a new contract in no respect contradictory to that of the shipping paper. Held further, that the true construction of the order, drawn by the master, was, that the plaintiff should receive his share according to the terms of the shipping paper, during the time he served on board the ship, but not for the whole voyage nor for the residue of the voyage, after he was discharged.</p> <p>Evidence of custom is admissible to explain an ambiguity in a written contract.</p>

<p>WRit of entry to recover a tract of land in Fairhaven. The parties submitted the case to the court on the following facts:</p> <p>In the year 1806, Charles Church, the ancestor of the demandants, being seized in fee of a certain estate, of which the demanded premises are part, died intestate. His estate was insolvent, and the usual proceedings for settling insolvent estates were had. His widow, Keturah Church, was duly appointed administratrix, and administered upon the estate. The real estate was appraised at $ 2095, of which one third was assigned iO the widow as her dower. The assignment of dower by the commissioners was thus: “We set off to Keturah Church, widow of said deceased, the lower part of the said deceased’s dwellinghouse, with the front chamber and entry way to pass t< said chamber, and one half of the garret, the west half over said front chamber, with two third parts of the cellar in said house, ana th; kitchen, and a privilege to the well of water at all times to use, reserving to whomsoever may improve the residue of said house to use the oven and well of water and to pass through said kitchen ; all which we appraised at $ 698.”</p> <p>On the 8th of September, 1806, said administratrix petitioned the court of common pleas for liberty to sell the whole of the deceased’s real estate, for the purpose of paying his debts ; and a license to sell the whole was duly granted. In pursuance of that authority, the administratrix made sale of real estate of said deceased, in Feb. 1807, to one Joseph Howland, and in her deed of conveyance to him, the description of the property sold was this : “ The residue of the deceased’s dwellinghouse that was not set off to his widow as her power of thirds in said estate. It is the whole of the privileges in the said house, well and yards about said house, that was not set off to said widow, reference always being had to the returns and bounds of the said widow’s thirds for a particular description of bounds of the premises.”</p> <p>On the 24th of February, 1807, said Joseph Howland recon veyed the same premises to said Keturah Church, and the consideration in both deeds was $280. Said Keturah occupied the whole estate until her decease in 1837. In 1838, Asa Swift, one of the tenants, was appointed administrator de bonis non on the estate of said Charles Church, and by virtue of a license from the probate court, duly sold and conveyed a portion of the said deceased’s estate, to the other tenant, Deborah H. Wayman. The deed from A. Swift to D. H. Wayman de scribed the estate thereby conveyed as “ being all the remainder oí the real estate of said Charles Church, to wit, all that part of the real estate which was set off to Keturah Church, widow of the said Charles, for her dower, and is the lower part of the said deceased’s dwellinghouse,.with the front chamber and entry way to pass to said chamber, and one half of the garret, the west half over said chamber, with two thirds of the cellar in said Ur use, and the kitchen and a privilege to the well of water.”</p> <p>The proceeds of said sale were duly accounted for, by said Swift, at the probate court, and applied towards the payment of (lie debts of said Charles Church. The said Swift has disclaimed all title to the demanded premises, and the other tenant, Deborah H. Wayman, is in occupation thereof claiming under said deed of said Swift. The demandants are the legal heirs of both said Charles and said Keturah Church.</p> <p>Judgment to be rendered for the demandants if the deed of Keturah Church to Joseph Howland conveyed the demanded premises, to wit, the reversion of the premises set off as dower to said Keturah; otherwise, the demandants to be nonsuit.</p>

<p>As this court has not prescribed any device or inscription as a test of the authenticity of its seal, any seal affixed by the clerk, as the seal of the court, is to be so considered.</p> <p>It is immaterial whether a blank writ be signed by the clerk, or his signature be annexed thereto by his order ; and when the clerk’s name is so annexed to a writ, the legal presumption is, that it was affixed by his order.</p> <p>Hence a writ, to which the clerk’s name is annexed by wafer, will not be dismissed on motion. If the defendant, in such case, would avoid the writ, on the ground that the signature of the clerk was not properly on the writ, he should deny it by a plea in abatement which may be traversed, and thus an issue on the fact be joined and tried.</p>

<p>Debt on a bond, dated April 10th, 1837, given to the plaintiff, by the defendant’s intestate, Daniel Dean, in the sum of $2105-11. The condition of the bond recited that .John W. D. Hall was indebted to the obligee (the plaintiff) in the aforesaid sum of $2105*11, and concluded thus : “Now if the said Hall shall well and truly pay or cause to be paid to the said Butts, his executors, &c. the said sum, within eighteen months, then this obligation is to be void ; otherwise, it shall remain in force.”</p> <p>From the report of the chief justice, before whom the case was tried, it appeared that the execution of the bond was duly proved, and that the defence relied upon was performance of the condition thereof by the payment of the debt by Hall, within the time in said condition mentioned. The grounds of tin's defence were stated to be, that the debt, to secure which the bona was given, was a balance of account due from said Hall, who resided in Taunton, to the plaintiff, who resided in Prov ;dence, R. I. ; that a few days after the bond was given, Hall went to Providence, and gave his own negotiable promissory note to the plaintiff for the amount secured by said bond ; which operated as a payment and discharge of the simple contract, for collateral security whereof the bond was given.</p> <p>The defendant called said Hall as a witness ; and he testified that said bond was given by the intestate, as collateral security as aforesaid, and that he (Hall) soon after went to Providence and gave his note payable to the plaintiff, or order, for the sum of $2105'11, that being the sum which he then owed the plaintiff on account; that said note was, at the suggestion of the plaintiff, dated April 10th, 1837, to correspond with the date of the bond; that a receipt was given by the plaintiff, and that the note had not been taken up, nor any payment made on it.</p> <p>The plaintiff produced said note in court, and it appeared not to have been indorsed. Said receipt was also produced by said Hall, and it purported that the plaintiff had received a due bill for $ 2105T1, payable in eighteen months, for balance of account to date.</p> <p>Said Hall, on cross-examination, testified that he had proposed to give the plaintiff security for his debt; that the bond was written in Taunton, and sent to the intestate at Raynham, to be executed ; and that he (Hall) was present when the bond was given, and brought and delivered it the plaintiff.</p> <p>This being the whole evidence, the chief justice was of opinion that the case turned wholly upon questions of law and of presumption from the facts testified and not contested : 1. What is the construction of the bond ? 2. Whether the legal effect of the alleged payment by note is to be determined by the law of Rhode Island or of this Commonwealth ? 3. In either case, whether, by any presumption of law or fact, the alleged payment by negotiable note is such a satisfaction and discharge of the debt mentioned in the condition of the bond, as amounts to performance of that condition ?</p> <p>Whereupon a verdict was taken for the plaintiff, by consent, subject to the opinion of the court upon these questions, and upon the general question whether the plaintiff be entitled to recover.</p> <p>The court were also to inquire into the law of Rhode Island on the subject, if necessary; and also to draw all such inferences of fact, from the evidence, as a jury would be authorized and bound to draw from the same. If, in the opinion of the court, the plaintiff be entitled to recover, judgment to be entered accordingly; otherwise, the verdict to be set aside and the plaintiff to become nonsuit.</p>

Writ of entry to recover a pew in the North Christian Meetinghouse in New Bedford. The parties agreed the following facts : Ichahod Handy, being the owner of several pews in said house, mortgaged the pew in question, on the 19th of January, 1835, to the demandant, to secure payment of $ 17V61, in six months. The mortgage was duly recorded by the parish clerk, January 31st, 1835, and by the town clerk, January 23d, 1836.

<p>Writ of entry to recover a small parcel of land in Taunton. The demandant counted on his own seizin and a disseizin by the tenant.</p> <p>At the trial before the chief justice, the demandant relied on a grant, from the original proprietors of the township of Taunton, to his great-grandfather, Samuel Williams, and a transmis sion of the title by devise, descent, and grant, to himself. To prove said grant to said Samuel, an entry in the books of said proprietors, Yol. II. p. 231, bearing date August 13th, 1742, was produced in evidence by the demandant, in these words : “ At the request of Samuel Williams, Esq. granted to the rights originally William Phillips’ half an acre of land on the ten acre division ; the said half acre to lay on the westerly side of the great river adjoining to the easterly side of the highway that leads from the weir bridge to the dwellinghouse of Elnathan Thrasher, and lieth between said Williams’ dwellinghouse and Thomas Gilbert’s orchard.”</p> <p>As it was considered, in a former action respecting this land, 21 Pick. 288, that said entry only proved, if any proof of grant at all, a grant made at the request of Samuel Williams, and not to him, the demandant produced another entry in said books, of the date of November 6th, 1752, as follows : “ Took an account of the lands that Major Samuel Williams had granted and laid out on the purchased rights he owns and what land he bought by deed.” Five different parcels of land are then mentioned, amounting to 102 acres, 137 rods and 14 feet. In said account there is also a debit of account against said Williams, in these words : “ Ten acre division, Aug. 13th, 1742, on Phillips’s right, between his house and Gilbert’s orchard, 80 rods.”</p> <p>The tenant then gave in evidence the votes of the original ■proprietors, passed on the 30th of August, 1736, under which the ten acre division was directed to be made, which votes showed that the location was to be made by the committee therein mentioned and a surveyor, and a return of each grant or allotment was to be made by such committee, or a majority of them, to be recorded in the proprietors’ books.</p> <p>No evidence was offered of any return by said committee in relation to said 80 rods of land between the weir bridge and Gilbert’s orchard.</p> <p>The demandant gave in evidence the will of Samuel Williams, dated in 1764, by which he made his son Seth Williams his residuary devisee; also the will of Seth Williams, made in April, 1804, by which his son Nathaniel Williams was made residuary devisee. Said wills were broad enough to pass such real estate, not specifically devised, as. the devisors died seized of, but contained no description embracing the land demanded in this suit.</p> <p>Said Nathaniel Williams died intestate, and the demandant is his son and one of his heirs at law. The other heirs of said Nathaniel conveyed their rights in his estate to the demandant.</p> <p>No evidence was given to prove that either said Samuel Wil liams, Seth Williams or Nathaniel Williams, was ever in pos session of the demanded premises.</p> <p>The tenant’s counsel denied that the demandant’s evidence proved any title in himself, and, for another ground of defence, offered evidence (which is stated in the opinion of the court) to disprove the seizin of the demandant, by proving a seizin in Jonathan Ingeil, the tenant’s father.</p> <p>A verdict was taken for the tenant, by consent, which was to be set aside and a new trial granted, if the whole court should be of opinion that the evidence proves a title in the demand-ant’s ancestor, Samuel Williams, and that it was regularly transmitted to the demandant, and that the evidence offered by the tenant does not prove a seizin in Jonathan Ingeil and make a good defence for the tenant: otherwise, judgment to be entered on the verdict.</p>

<p>A father, who lives apart from his wife, ana suffers his son, who is a minor, to remain under the custody and care of the wife, to be supported and employed by her—or allows such son to go from him and employ himself as he pleases, and take his wages-—cannot maintain an action against a third person, on a declaration avening that the defendant enticed and carried away the son from the plaintiff’s own care and custody. And where a minor, thus left to the care of his mother, or thus allowed to employ himself, ships for a voyage to sea, at the request of the mother, the father cannot, by forbidding the ship-owner to take the son to sea, entitle himself to maintain an action against the ship-owner, on such declaration.</p>

Assumpsit on a promissory note given by the defendant to the plaintiff. Defence, a release given by the plaintiff to the defendant. At the first trial of the case, it appeared that the defendant made an assignment of his property for the benefit of such of his creditors as should execute a release of their claims by becoming parties to the indenture of assignment within sixty days from the date thereof.

Trespass de bonis asportatis. The declaration alleged that the defendant took, carried away, and converted to his own use, twenty-three cords of the plaintiff’s wood. At the first trial, the defence was, that the wood was the property of the defendant; that the plaintiff cut it on the defendant’s land and removed it to a landing place which was also the defendant’s land, and that the defendant, as he well might, took it to his own use.

<p>A mortgage of property to secure the debt of another is not a voluntary conveyance, and therefore is not fraudulent per se as against the creditors of the mortgagor.</p> <p>Upon a statement of the facts on which a party relies to prove a conveyance fraudulent, on the ground that it was intended to defraud creditors, the court will not pronounce it fraudulent. Whether it be fraudulent for such cause, is a question to be decided by a jury.</p>

<p>Bill in equity. The bill set forth that on the fifth of November, 1835, Timothy Gay was indebted to the plaintiffs on his note for $ 1000, and that he on that day, by an indenture tripartite made between him, of the first part, Mason Richards, of the second part, and certain creditors, &c. of Gay, who executed the indenture, of the third part, assigned to said Richards certain property in trust to convert the same into money, and after paying the expenses attending the trust, then to apply the residue of the trust funds to the payment and discharge of the c aims of the parties of the third part, whose names, claims and liabilities were set forth or referred to in a schedule annexed to the indenture (marked A) ratably until paid in full; and after paying the claims in that schedule, then to pay the balance to the creditors mentioned in another schedule (marked B) annexed to the indenture ; and the surplus, if any, to Gay’s order ; and that the creditors, who became parties to the indenture, thereby released said Gay from all their claims mentioned in said schedules : That the plaintiffs became parties to the indenture, on said 5th of November, by executing the same ; that their claim against Gay was set forth in the schedule A, and that they thereby became entitled to payment of $ 1000, according to the terms of the indenture, as soon as sufficient money was received by the trustee to pay the creditors in that schedule : That Richards assumed the trust, by executing the indenture, November 5th, 1835, and immediately entered on the execution of it, and. has since converted all the trust property into money : And the plaintiffs aver that there is sufficient in his hands to pay all the demands in schedule A, in full, after paying the just expenses of the trust : That there was one demand in said schedule, described thus : £< Amount due to Theodore T. Kimball on notes and account about $ 4500 ; ” and another,. described thus : ££ Three notes due the President, Directors & Company of the Washington Bank, signed by said Gay as principal, and Theodore T. Kimball as surety, for $ 2500 and interest — about $ 2700 ” : That said Kimball claims, under the assignment, not only the sum of $4500, but a larger sum, the precise amount of which the plaintiffs do not know ; and that the Washington Bank claims, in like manner, $ 2700 : That said Richards allows these claims and retains the trust funds for the purpose of paying, satisfying and indemnifying against them, and gives out that he shall apply the trust funds for that purpose ; and that he, Kim-ball, and the Washington Bank combine so to retain and apply the trust funds.</p> <p>The plaintiffs say that the Washington Bank is not entitled to receive any thing from the trust property, towards their claim, and that Kimball is not entitled to receive more than $ 4500 : That the plaintiffs became parties to the assignment, after Kim-ball, and relying upon the representation and warranty, contained in the schedule and assignment, that Kimball’s claim did not exceed $ 4500, and might oe proved to be less : That though Richards has received sufficient to pay the said demands and liabilities, he has never paid said sum of $1000 due to the plaintiffs, though they have repeatedly requested him to pay it; but that he, combining and confederating with Kimball and the Washington Bank, to withhold from the plaintiffs their share of the assigned property, refuses to comply with their request.</p> <p>The prayer of the bill was, that Richards might answer, and set forth an account of the trust, and of all moneys paid ana received, and be compelled to execute the trust, and pay the plaintiffs the sum of $ 1000, with interest, or such other sum, &c. ; and that they might have such further or other relief as equity requires. There was also a prayer for a subpoena against Richards, Kim-ball and the Washington Bank, that they might answer the bill and abide the order and decree of the court.</p> <p>Richards, in his answer, admitted the statements in the first part of the plaintiff’s bill; and he filed a copy of the indenture, mentioned in the bill, and of the schedules annexed thereto, as part of his answer. He denied that he had converted all the trust property into money, or that he had received money sufficient to pay in full all the sums mentioned in schedule A. He also denied that the whole property assigned to him was sufficient to pay those claims in full. And he averred that he had received in money, as assignee, only $9538T6, from the trust property; that he paid the plaintiffs, on the 25th of October, 1837, $ 500 in part of their said claim. He admitted that Kimball’s claim was entered on the schedule annexed to the indenture, as “ about $4500,” and he then set forth the particulars oí Kimball’s claims, on notes and accounts, amounting to $ 5867-37, which he averred that he had no good reason to doubt were justly due to him from Gay; and he prayed the court to instruct him what part of said claims should be allowed to Kimball as a creditor on schedule A.</p> <p>The answer of Richards further admitted that the Washington Bank, as creditors under schedule A, had claimed of him payment of three notes, amounting to $ 3500 and interest thereon ; but he averred that the bank never became party to the indenture, and that he therefore had declined to allow said claim, without the instruction of the court.</p> <p>Kimball, in his answer, admitted all the material facts respecting the assignment by Gay, as set forth in the bill, and prayed the court to receive as part of his answer, the copy of the assignment annexed to the answer of Richards. He also admitted the claim of the plaintiffs as set forth in the bill. But he averred that he did not know that Richards had converted all the trust property into money, but believed that he had not; and that he did not know whether Richards had sufficient in his hands to pay all the demands in schedule A, after paying the expenses of the trust. He also admitted that his claim and that of the Washington Bank were entered in schedule A, as set forth in the bill, and that he claims of Richards to be allowed dividend? on a larger sum than $ 4500 ; and he set forth a list of his claims on Gay, similar to that set forth in the answer of Richards, and also stated specially the consideration of each item of his said claims, averring that the amounts claimed by him were justly due, and not paid. He denied that the Washington Bank had any claim under the assignment, upon the three notes, because they had never become a party to the instrument; which, if they had done so, would have discharged Gay, and consequently would have discharged him ; but he averred that he was, and always had been, willing, if said bank will give up those notes to him, and discharge him therefrom, to give the bank an order to receive from Richards the dividends to which he (Kimball) would then be entitled on the notes held by the Washington Bank.</p> <p>The answer of the Washington Bank admitted all the material facts ielative lo Gay’s assignment and the execution of it, and also the claim of the plaintiffs, as set forth in the bill, but denied that the plaintiffs were entitled to be paid to the exclusion of the Washington Bank, whose claims on the trust fund stood on the same footing as that of the plaintiffs. The answer also stated that Gay, when the assignment was made, owed the Washington Bank $ 2500 on three notes for money lent, copies of which are thereto annexed, and on which Kimball was sure ty ; that one of the leading objects of the assignment was to secure the payment, in proportion to other demands on schedule A, of these three notes, and to indemnify Kimball, the surety thereon, and that for this purpose the demands of the Washington Bank were entered on schedule A, in the manner before set forth; that Kimball, for whose especial protection, as indorser and surety of Gay, the assignment was made, and whose duty it was to take up these three notes, became a party to the assignment, and that if he had paid said notes, would have been entitled to the dividend on them; but that he had not paid them, and that Richards, therefore, should retain the dividend in respect to these notes, for the use and benefit of any party who may be the lawful proprietor and holder of the notes ; and that the great object of the schedule and of the parties, was to designate the particular demands to be paid, and not the persons to whom such payment was to be made ; as they could not be known when the schedule was made : that said bank have relied on the assignment, for payment of said notes, hoping to receive pay from the assignee, and have taken no steps to enforce the collection of them, either against Gay or Kimball, and have always been ready to do any proper acts to affirm the trust, in order to avail themselves of the trust fund ; and to this end they have, from time to time, required said Richards to pay to them such sums as they were entitled to receive, in respect to said three notes.</p> <p>The answer admitted that said bank had not become party to said assignment, but averred that by Kimball’s becoming a parly thereto, they believed all was done which was necessary to secure to said bank their distributive share of the trust fund, if they should be holders of said notes when such share might he payable</p> <p>The answer concluded thus : “If the Washington Bank have been mistaken in these views, they have been misled by not un derstanding the true intent and meaning of the case of Ward v Lewis, 4 Pick. 518; and if, in revising the opinion in that case this honorable court should come to the conclusion that the Washington Bank, in order to have the benefit of the trust, must previously have executed the indenture, then they pray the court tc be permitted to execute it, and if necessary, that the time limited in the assignment for signing it may be enlarged, so as to enable them to derive the benefit intended from the trust fund.”</p> <p>The answers of each of the defendants denied the charge ol confederacy, and also that the schedule A, annexed to the assignment, contained a representation or warranty that Kimball’s claim did not exceed $ 4500.</p> <p>The provision, in the assignment, respecting the amounts of the several claims in schedule A, and respecting the correction of mistakes and the supplying of omissions therein, is set forth in the opinion of the court.</p> <p>By the terms of the indenture of assignment, two calendar months from the date thereof, and no longer, were allowed to the creditors for the purpose of executing it: “ Provided, however, that if said time shall after its expiration, be declared by any individual of the first or second part, to have been insufficient, or unreasonably short, he may extend the same from time to time, as often and as long as he shall think reasonable or expedient, but so, nevertheless, that said time shall not exceed, in the whole, six calendar months from the date hereof.”</p> <p>The case came before the court on the bill and answers.</p>

<p>Assumpsit on a promissory note for $ 2000, given by the defendants, on the 3d of April, 1835, to Oliver Capron, the plaintiff’s intestate, payable in ninety days after demand, with interest. The case was submitted to the court on the following facts agreed :</p> <p>Payment of said note was duly demanded more than ninety days before this action was commenced. The said Oliver Ca-pron was an inhabitant of Smithfield, in the State of Rhode Island, and died there, leaving no property, besides the note m suit and one other note, to be administered upon in this Commonwealth. The plaintiff was duly appointed administrator of said Capron’s estate by the judge of probate for this county, on the 3d of September, 1839.</p> <p>Soon after the death of said intestate, Newton Capron of said Smithfield was duly appointed administrator of his estate, by the proper authority in the State of Rhode Island, but no administrator was appointed in this Commonwealth before the appointment of the plaintiff. Said Newton Capron, after his said appointment, and before the said appointment of the plaintiff, sued out a writ, in due form of law, as administrator of said Oliver Capron, against the defendants, on said note, and entered his action thereon at the court of common pleas held in this county, on the third Monday of December, 1836, when and where said Newton appeared, but the defendants did not appear; whereupon said Newton discontinued as to William Makepeace, Jr... one of the defendants, and the other two, viz. William Make peace and George L. Makepeace, were defaulted, and judgment was rendered against them for the amount of said note and interest, and costs. Execution was issued upon this judgment, on the 2d of January, 1837, and was levied on real estate of said defendants situated in the town of Franklin, consisting of about one quarter of an acre of land with a store, shed and stable thereon, and twenty-nine eighty-fourth parts of a factory and the land adjoining the same and the fixtures thereto belonging. This levy was duly recorded in the registry of deeds ; seizin and possession of said premises were duly delivered to said Newton, by the officer who made the levy ; and the execution was returned fully satisfied. Said Newton joined in a lease of the factory and privilege to one John S. Robinson, with the other owners thereof for five years. Said Robinson occupied the same three or four months and then became insolvent, and left without paying rent; and the same has since been unoccupied. Said Newton, soon after the levy, leased the other portion of the estate, and the tenant converted the store into a dwellinghouse, dug a cellar and made other alterations thereon. The said William and George L. Makepeace have never made any claim or set up any title to the real estate levied on as aforesaid ; and they offered, at the time of the service upon them of the writ in the present suit, to release the same to the plaintiff by deed.</p> <p>The defendants to be defaulted, or the plaintiff to become nonsuit, according to the direction of the court</p>

<p>The simple repeal of a repealing statute revives the original statute.</p> <p>The statute of 1840, c. 1, by repealing St. 1838, c. 157, revived so much of chapter 47th of the revised statutes as was repealed by the latter statute.</p> <p>Under the provision in the constitution of the Commonwealth, c. vi. § 6, that all laws theretofore adopted, used and approved, in the colony, province or state, and usually practised on in the courts of law, should remain and be in full force, until altered or repealed by the legislature, it is not necessary, in order to prove that a principle or rule of the common law had been adopted, &c., to show that such principle or rule had been adjudicated before that constitution went into operation: The court rely on usage and tradition, and the well known repositories of legal learning — works of approved authority — to learn what are the rules of the common law; and it is to these sources, that the above provision in the constitution refers.</p> <p>It is not necessary, in an indictment on § 2 of c. 47 of the revised statutes to aver that the quantity of liquor, alleged to have been sold by the defendant, was less than twenty-eight gallons.</p> <p>After a conviction on an indictment charging the defendant with selling spiritons liquor, to be used in his house,<e without being duly licensed as an innholder or common victualler,” a new trial will not be granted for the purpose of allowing him to give in evidence a license, which he had omitted to produce, to sell fermented liquor, and thus raise a question as to the mere form of the indictment.</p>

<p>Bill in equity. The bill, as amended since the last October term, alleged that the plaintiff, and Joseph Porter and Samuel Everett, before April 1st, 1838, were partners, doing business as such, in the purchase and sale of wood and lumber, at Milton, under the name of Clapp and Everett; that the partnership had been dissolved, and that said Porter had assigned his inteiest in The concerns thereof to one John H. Porter; that a difference of opinion arose among the parties interested, respecting the adjustment of the affairs of said firm, and that the matter in dispute was referred to Edmund J. Baker, Edmund P. Tileston and Henry G. Durell, as arbitrators ; that said arbitrators heard the parties, and made and published their award ; that the partnership funds consisted principally of debts due on note and account; that some of the notes, constituting the fund of the firm, were made payable to John H. Porter or order ; that by the award of the arbitrators, part of the debts due to the firm, including a note against the said Joel R. Shepard, for about $22-77, payable to said John H. Porter, or order, were as signed to the plaintiff. The bill further set forth, that in a suit it equity, commenced by the plaintiff, July 25th, 1838, agains.. the said Joseph Porter, John H. Porter and Samuel Everett, such proceedings were had, that at the February term, 1839, of this court, held in this county, by a final decree of the court, in said suit, the said Joseph Porter, John H. Porter and Samuel Everett were ordered specifically to perform said award, and forthwith to disclose and deliver to the plaintiff the part of said partnership funds, which had been assigned to him by said award : That about May 10th, 1838, and after the award by said arbitrators, the said Joseph Porter unlawfully took from the plaintiff the said note against said Shepard : That the plaintiff afterwards, about May 20th, 1838, by one Samuel Howe, gave notice to said Shepard that said note had been assigned to him, and cautioned said Shepard against paying the money due on it to any other person : That the said Joseph Porter and Joel R. Shepard, by combining and confederating together, after-wards took and converted said note, so that it could not be replevied. And the plaintiff prayed that the defendants might be required to make answers, upon oath, to the matters of the bill, and ordered to disclose and deliver said note to the plaintiff, and that the said Shepard might be ordered to pay the money due thereon to the plaintiff.</p> <p>Said Joel R. Shepard, in his answer, denied all combination with said Joseph Porter, but admitted that he purchased lumber of Clapp & Everett, and that on the settlement of the account for the same, February 9th, 1838, he gave his note for $ 22-77, the balance found due, payable to said John H. Porter, or order, on demand with interest: That subsequently, but the exact time he could not state, said Howe gave him notice that said note had been set off to the plaintiff, and cautioned him not to pay it to any other person : That afterwards, about June 28th, 1838,he received a letter from Hobart & Cummings of Boston, informing him that said note was in their hands, and demanding payment thereof: That about four weeks afterwards, he paid the money, due on said note, to said Hobart and Cummings and took up the note, which he found to be indorsed in blank in these words — “John H. Porter by his attorney, Joseph Porter.”</p> <p>The said Joseph Porter appeared and demurred to the plaintiff’s bill. His demurrer was overruled at the last October term of this court, and upon his neglect to answer the bill, within the time limited by the rules of court for the regulation of practice in chancery, the plaintiff, at the rules before the clerk, on the first Monday of May, 1840, obtained an order that his bill, with regard to said Joseph Porter, be taken for confessed.</p>

<p>A representation to the jailer, by a person committed on execution,66 that he has not estate sufficient to support himself in prison,” is sufficient, under Rev. Sts. c, 98, § I, to authorize the jailer to make application to a justice of the peace to give notice to the creditor, by a citation, that the debtor desires to take the benefit of the law for the relief of poor debtors.</p> <p>A citation to a creditor, in which he has notice that his debtor <e desires to take the privilege and benefit allowed by an act entitled an act for the relief of poor prisoners who are committed by execution for debt,” is sufficient to authorize two justices of the quorum to discharge the debtor, on his taking the oath prescribed by § 9 of the Rev, Sts. c. 98.</p>

<p>Bill in equity, filed on the 28th of April last, for the redemption of several parcels of land in Canton and Sharon, upon which the defendant, on the 2d of May, 1839, levied an execution sued out on a judgment, recovered by him, against Adam Fuller, at the April term 1839 of the court of common pleas in this county.</p> <p>The question whether the plaintiff was entitled to redeem, and if so entitled, to what extent, was submitted to the court on the following facts agreed : The execution above mentioned was duly levied by the defendant on the undivided half, which said Adam Fuller owned as tenant in common with the defendant, of the parcels of land described in the plaintiff’s bill; and the defendant would have had, by virtue of his levy, an indefeasible title to said undivided half, on the 2d of May, 1840, if the plaintiff had not instituted proceedings to redeem the same, as hereinafter set forth.</p> <p>On the 11th of June, 1839, the plaintiff sued out a writ against said Adam Fuller on two promissory notes held by him against said Adam, and attached the right of redemption on the defendant’s execution ; and the officer, who made said attachment, left a summons, as appears by his return, at the dwellinghouse of said Adam Fuller, in Canton, where his wife and children then resided and still reside, and where said Adam had, for several years, resided with them, until about the last of July, 1838, when he absconded and went to parts unknown. The plaintiff took judgment in said suit, at the first term, without the usual order of notice in cases where the defendant is out of the Commonwealth, and the defendant insists, by his answer, that the judgment is therefore void, and that for this reason the plaintiff has no right to redeem.</p> <p>The plaintiff’s said judment was for $115-18 debt, and $10-11 costs. The first execution thereon issued September 23d, 1839, but was not levied; and the said attachment was dissolved. An alias execution was taken out by the plaintiff, March 20th, 1840, and the next day the right of redemption was taken thereon, and on said execution such proceedings were had, conformably to the provisions of law, that on the 21st óf Aprd, 1840, the fight of redeeming all the real estate, so levied on by the defendant, was duly sold to the plaintiff, at public auction, he being the highest bidder therefor, for the sum of $ 146-26 ; and the officer, who sold the same, delivered to the plaintiff, on said 21st April, a deed of the right of redemption, in the usual form, and the plaintiff claims thereupon the right to redeem.</p> <p>On the 23d of April, 1840, the plaintiff tendered to the defendant a quitclaim deed, from the defendant to the plaintiff, of the premises so levied on by the defendant, and at the same time tendered to the defendant $287-00 and requested him to take the money, execute said deed, and deliver it to the plaintiff. The defendant then refused to accept the money or to execute and deliver said deed, and has hitherto refused so to do.</p> <p>The defendant sued out a writ against said Adam Fuller, on the 9th of March, 1840, for the sum of about $27-00, and caused an attachment of the interest of said Adam in said land, so levied on by the defendant, to be made on the same day, and the action was duly entered at the ensuing April term, 1840, of the court of common pleas, and continued, with the usual order of notice, to the September term, and now stands defaulted and continued for judgment to the next December term.</p> <p>At the time of said sale of the equity, the plaintiff had notice in writing of an existing attachment by the defendant, but had no notice of the date or amount thereof.</p> <p>The defendant, on the 27th of April last, caused said right of redemption to be again attached in a second action, brought by him against said Adam Fuller and entered at the last September term of the court of common pleas in this county, and which was continued to the ensuing December term, with an order of notice to said Adam as out of the Commonwealth.</p> <p>The plaintiff brought into court $287 ‘00 for the defendant to take, or so much thereof as the court should determine to belong to him.</p> <p>The plaintiff claimed a right to redeem, according to the prayer of his bill, under the Rev. Sts. c. 73, § 48, by which it is provided that “ all rights of redeeming any real estate, which has been taken and set off on execution, may be taken and sold on another execution, in like manner as the right of redeeming mortgaged real estate may be taken and sold ; and the debtor and those claiming under him may redeem the right sold under such second execution, as if it had been a right of redeeming a mortgaged real estate.”</p> <p>On the point upon which alone 'he court gave an opinion,</p>

<p>This was an action on a policy of insurance, dated April 3d, 1837, by which the plaintiffs were usured “ $ 2500 on schooner Good Hope and appurtenances, to be employed in the coasting trade of the U. States until May 15th, 1837, and back and forth one or more fishing voyages or fares, at and from Gloucester, from May 15th to November 15th, 1837.” There was a provision in the policy that the assurers were not to be liable for partial loss on any articles, or on vessel or freight, under five per cent, excepting, in all cases, general average.</p> <p>The case was tried before Dewey, J. whose report was as follows : The Good Hope sailed from Gloucester, in good order and condition, within the time specified in the policy, for the Bay of Chaleur, on a fishing voyage. On the 12th of September, 1837, expecting a storm, she ran, with five other schooners, into Chitecamp Harbor, and anchored. On the 13th, a heavy gale set in, and on the 14th, it blowing directly into the harbor, she dragged her anchors and went ashore, as also did four of the other schooners. She went ashore in the most favorable place and manner ; the sea made a breach over her, and she soon became imbedded among the rocks. The wind and tide abating, the crew got out some large rocks from her bed, that she might lie smoother. The next night she thumped again. The fish and barrels, and every thing on board, were got on shore as soon as possible, and a survey was called the next morning. The crew boarded on shore, and board was paid for them, after the fish and barrels were landed. By the labor of the crews of the Good Hope and of five other schooners, and of some inhabitants from the shore, according to the advice of the survey, in five days’ time she was got off; the men laboring night and day when the tide would serve: The captain and crew, by eight days’ further labor, got the schooner round into a safe place for fitting her out again for sea, and put her into such condition as to be capable of the voyage to Gloucester ; though she was not repaired, except by caulking. Shortly after, she sailed for Gloucester and arrived there safely. At Gloucester, skilful persons were employed by the plaintiffs to make the necessary repairs : They bored out some treenails and put in more bolts j taking out, and afterwards putting in again, so much of the ceil ing as was necessary for that purpose, and recaulked her and spiked her decks.</p> <p>After these repairs, sne was seaworthy; and a survey, called at Gloucester by the plaintiffs, for that purpose, on the 29th of Not ember, 1837, estimated the damages done her by going ashore, which had not been repaired. She has since been constantly employed, and has performed her voyages well. She is insured at Gloucester at the same premium, and the same valuation, as in the said policy.</p> <p>The items of loss, for which the plaintiffs claimed, were as follows :</p> <p>1. Expenses of captain and crew at Chitecamp, for labor in getting off the schooner, stopping the leaks, &c. till she sailed for Gloucester, $ 221-00. For men’s board on shore 13 days, $ 81-84, 302-84 2. Expenses incurred for labor of otners, and materials used in getting her off, and damage done to a hired boat, - - 472-35 3. Loss on outfits, ..... 42-50 4. Repairs at Gloucester, ...... 188-03 5.. Damage of hogging and strain, ... 835-00 6. Fees of survey at Gloucester, ... . 12-00 Total, |1852-75</p> <p>A quantity of salt, a part of the outfits of the schooner, was sold at Chitecamp, to raise money to pay the expenses above named; it being necessary to pay cash for them, and the captain having no other means of raising money. The loss to the plaintiffs, caused by this sale, was the third item of their claim.</p> <p>The schooner, while on shore, was strained and badly hogged by beating upon the rocks.</p> <p>The witnesses stated her to be a first rate vessel of her class. On her voyage to Gloucester she leaked badly : They had on board the crew of the schooner Roger, and two pumps were kept going half the time. The master carpenter, who repaired the vessel, stated that the whole body of the vessel was injured; that some of her timbers were lifted ; that some of her treenails were started in the bilge, so as to come half through ; that the seams and butts were opened in several places, and that some bolts were broken and others started ; and he stated that the injury from the strain or hogging could not be perfectly repaired except by rebuilding her. The plaintiffs directed the carpen- • ters to repair the vessel and make her seaworthy, but to do it economically; stating that “they meant to keep her, and did not want any thing out of reason to be done upon her.”</p> <p>The hogg remained in her after the repairs, and it was testified, that with a hogg a vessel usually grows weaker, and that it affects not only the beauty but the strength of the vessel. The witnesses testified that the hogg diminished the value of the vessel from $ 800 to $ 1000.</p> <p>The jury were instructed to consider how much the schooner was injured in value by the effect upon her shape by the strain, and they returned a verdict for $ 835. This was the only point submitted to the jury. The counsel for the defendants contended that they were not liable for the injury, or the effect on the value of the vessel, from the hogg or strain, and also that other items of the loss claimed were not chargeable to general average. Questions also arose as to contributory interests. All these questions are submitted to the whole court; and assessors are to be appointed to state the plaintiffs’ claim upon the policy, upon such principles as the court may direct.</p> <p>The case was argued at a former term.</p>

<p>This was a proceeding upon a petition for a jury to assess the damages sustained by the petitioner by the laying out of the eastern railroad over his land. On the return of the verdict into the court of common pleas, the respondents objected to the acceptance thereof, for the reasons hereinafter mentioned. The court, however, accepted the verdict, and ordered it to be certified, with their adjudication thereon, to the county commissioners The respondents thereupon alleged exceptions to the ad judication : First, because the sheriff, who presided at the hearing before the jury, admitted (the respondents objecting thereto) the testimony of John W. Proctor, Esq. that he had been for ten years secretary of an insurance company, and had been applied to for insurance on a house in the vicinity of the petitioner’s land, over which the eastern railroad was laid, and that upon his consulting the directors of the insurance company, they declined taking the risk at any rate ; and that in his opinion the passage of locomotive engines, within one hundred feet of a building, would increase the rate of insurance, and that the premium would be increased from one and a half to two per cent., and that the rents of buildings so situated would be reduced from one fourth to one third. Said Proctor did not profess to be an expert, but testified that he had been county commissioner six or eight years, and had estimated damages for common roads and for railroads, and, as secretary of an insurance company, had examined and estimated the value of estates in every part of the county. Secondly, because the sheriff admitted in evidence (the respondents objecting) an estimate, made at the request of an agent of the respondents, by a committee of the town of Beverly, (when that town petitioned the legislature to change the route of the eastern railroad,) of the damages that would be sustained by different proprietors of land, and among others by the petitioner. Thirdly, because the sheriff instructed the jury upon the point of the quantity of land taken, and as applicable to the title deed of the petitioner, which bounded him on a way, that the rule of law is, that a deed which so bounds a party, without any measurement of lines, carries him to the centre of the way, and that by the construction of the petitioner’s deed of the land over which the railroad was laid out, he should be considered as the owner of the way upon which, by said deed his land was bounded, and that he was entitled to recover damages for the value of the land over which said way passed.</p> <p>This case was argued at a former term.</p>

<p>An assignment under St. 1836, c. 238, is not made void by the assignor’s giving a preference to one of his creditors immediately before the execution of the assignment» Two sheets of paper, one folded within the other, were taken by a scrivener, and an assignment under St. 1836, c. 238, was written and executed on the first pages of the first sheet. A magistrate, immediately after the execution of the assignment, wrote and signed on one of the pages of the second sheet, a certificate that the assignor “ within named ” made oath that he had ie thereby conveyed all his property, not exempted by law from attachment, for the benefit of all his creditors, according to the true intent and meaning of the statute in such case made and provided Both sheets were delivered to the assignees and were kept together ; and a schedule of the property assigned was soon after made and annexed, and the whole were then stitched together as one instrument. Held9 that the certificate of the oath of the assignor was “ indorsed on the instrument of assignment,” within the meaning of the statute</p>

Assumpsit on two promissory notes, dated September 19th, 1836, given by James Hibbert to Edmund G. Hibbert or order, each for $ 500, and payable, one in five, and the other in six months from date, and first indorsed by the payee, and then by the defendant.

<p>Writ of entry to recover a messuage and appurtenances in Lynn, known as the banking house and land of the Nahant Bank. The demandant counted on his own seizin in fee and in mortgage.</p> <p>At the trial before Putnam, J. it was shown by a book, enti tied “Directors’ Records,” that at a meeting of the directors of the Nahant Bank, held on the 3d of July, 1837, it was voted, that A. Breed and J. C. Stickney, two of the board of directors, be a committee to sell and transfer any estate or property owned by said bank. E. S. Davis, called as a witness by the demandant, testified that he was cashier of the bank from February to October, 1837 ; that the demandant brought an action against the tenants to recover the amount of three $ 500 bills of said bank, and obtained judgment thereon in June, 1837 ; that in the month of July following, the witness understood that the demandant intended to sue out execution and levy it upon the banking house ; to prevent which, as the witness understood from conversation with the directors individually, and not as a hoard, they were about to secure the demandant by a mortgage of said house. The witness testified also that he afterwards saw the mortgage which was given to the demandant, and received from him a bond to the bank, conditioned that he would not put said bank bills in circulation for twelve months ; and that when the said mortgage and bond were given, he paid the costs of the demandant’s said suit, as part of the adjustment, but that the said bank bills were not given up to the bank.</p> <p>On cross-examination, the witness said he had no distinct recollection of any conversation, on this subject, with any director besides A. Breed; that the conversation aforesaid was in the bank room ; that he did not meet with the directors, unless called in ; that he made the record of the doings of the board of directors, after their adjournment, from minutes that were usually made by said Breed ; and that he had no knowledge of any vote .of said board, which does not appear upon the records of their doings. The witness was certain that he had the above mentioned conversation with said Breed before the mortgage was made, and that some of the other directors were present; that it was immediately after a session of the board of directors ; that they came from their room into the room where the witness was, and were talking on the subject.</p> <p>The demandant introduced the deed of mortgage of the demanded premises, given to him by the tenants, bearing date September 6th, 1837, signed by A. Breed and J. C. Stickney, describing themselves as a committee of said Nahant Bank, duly authorized to transfer the property of said bank, and stating that they had thereto affixed the seal of said corporation ; which seal was in fact affixed. The deed contained the usual covenants against incumbrances, of warranty, &c. and the condition was, that unless the tenants should pay $ 1500, in one year, with interest, the deed should “remain absolute.”</p> <p>A verdict was taken for the demandant, subject to all exceptions of the tenants either to the competency or the sufficiency of the proof to sustain or show the authority of the committee of the directors to make said mortgage.</p>

Assumpsit to recover money paid by the plaintiff for the defendant’s use. Writ dated November 11th, 1839.

<p>Assumpsit on a promissory note for $ 35, dated October 12th, 1839, payable in sixty days, and signed by John W. S. Goodwin, as principal, and by the defendant and Gilman Dow, as sureties. The promisors all resided in New Hampshire, and service was made on the defendant only.</p> <p>At the trial in the court of common pleas, before Williams, C. J. the execution of the note was admitted. The judge received in evidence (the plaintiff objecting thereto) the depositions of Goodwin and G. Dow, the other promisors, to prove the discharge of the sureties, viz. the defendant and said G. Dow. These depositions tended to prove that the plaintiff agreed with the said Goodwin, that if he would pay part of the sum for which the note was given, before the note should become due, the plaintiff would enlarge the time of payment of the residue four weeks beyond the day stipulated in the note ; and that said Goodwin paid part of said note to the plaintiff accordingly.</p> <p>The judge instructed the jury, that if they were satisfied, from the evidence, that the plaintiff agreed with Goodwin, the principal in said note, that if Goodwin would pay him a part of said note before the same became payable, he would wait for the remainder four weeks after it should become due ; and that Goodwin, pursuant to such agreement, did pay such part within the agreed time; such agreement was founded on a valuable consideration, and operated as a discharge of the sureties, and as a bar to this action.</p> <p>A verdict was returned for the defendant, and the plaintiff alleged exceptions to the ruling and instructions of the court.</p>

Trespass for breaking and entering the plaintiff’s close m Lynnfield, and there digging a ditch thirty-five rods in length and two and half feet in width, and taking and carrying away the turf, &c. The defendant was defaulted ; but the parties agreed to submit to the court the question whether he was liable to this action, on the following facts : The ditch mentioned in the plaintiff’s declaration was cut by the defendant, for a fence between his land and that of the…

<p>Under the Rev. Sts. c. 14, a county commissioner is not disqualified to act in the laying out of a road, by reason of his being a taxable owner of real estate in the town in which the road, or a part of it, is prayed for ; and if he declines to act, for that reason, and a special commissioner is substituted in his place, the proceedings of the board, thus constituted, will be quashed, if seasonably excepted to.</p> <p>Where, on a petition for a new road, notice was given in due form that the commis** sioners would proceed to view the route, &c. on a certain day, and the parties interested met the commissioners on that day, but the meeting was adjourned without any proceedings being had ; it was held that an objection to the constitution of the board of commissioners, made at the opening of the hearing before them, on the second day of the adjourned meeting, was seasonable, and had not been waived by the omission to make it earlier.</p> <p>It seems, that an adjudication “ that the public convenience and necessity require that the road prayed for should be located in part,” without designating the termini, is invalid, and will not support a location, though made in due form, over part of the route prayed for. •</p>

<p>Parties to the crime of adultery may be jointly indicted.</p> <p>It is not necessary, in an indictment against an unmarried man for adultery with a mar* ried woman, under Rev. Sts. c. 130, § 1, to aver that he knew, at the time when the offence was committed, that she was a married woman. Nor is it necessary to prove such knowledge on the trial.</p>

<p>A testator, whose heirs at law were one son and two married daughters, in the first clause in his will, devised and bequeathed to his son, “ subject to the limitations,” afterwards made in the will, one equal third part of all his estate, viz. certain rea? estate particularly described, and so much of his other property not specifically devised, as, with advancements to the son, should amount to such third part; but if the son, at his decease, should leave only one child, then the child to take but one third part of its father’s share.</p> <p>The testator, in a subsequent clause, devised and bequeathed the 66 general residuum ” of his estate (t not before specifically devised,” equally to be divided among his three children, and their heirs and assigns, as follows : 66 The share of my said son to be held by him to his own use and benefit forever, and the shares of my said two daughters to be held in trust, for the use and benefit of my said daughters and their heiva and assigns, in like manner as is provided in respect to the portions herein before specifically devised and bequeathed to them respectively.”</p> <p>The Jasfi clause in the will was thus : 66 In case my said son and daughters shall die leaving only one child living at their deaths respectively, and no issue then living of any other child, such only child shall take one undivided third part, and no more, of the whole property which would have fallen to the share of said child’s parent in my estate by this will, and the other two third parts of such parent’s share shall enure to and be divided among my other children and their legal representatives.”</p> <p>Held, that the son was not entitled absolutely to the personal property included in the general residuum, but only to the use and possession thereof.</p> <p>Held also, that the son was not bound, before taking said property into possession, to give security that the same should be forthcoming, at his decease, upon the happening of the contingency upon which it was limited over by the will. Security is required, in such case, only when it is shown to the court that there is danger that the property will be wasted, secreted or removed by the first taker : When this is shown, the court may require security at any time during the first taker’s term of possession.</p>

<p>This was a petition for a writ of certiorari, presented at the November term 1839.</p> <p>The petitioner alleged that the mayor and aldermen of the city, at a meeting held on the '8th of November, 1836, passed a resolve, that the safety and convenience of the inhabitants required that Fulton Street should be extended northerly to a passage way leading from Ann Street to Commercial Street; that they, for that purpose, laid out about three thousand square feet of land belonging to the petitioner and his brothers and sister, as tenants in common ; and that, in the yeár 1837, they cut down and removed several buildings then on said land ; that the petitioner and his brothers and sister, the owners of said land, were, at the times of said proceedings, minors under the guardianship of Rufus Fiske, and that the petitioner was a minor and under said guardianship, until the 28th of June, 1839 ; that said mayor and aldermen gave no notice, either before or at the time of passing said resolve and extending said street, to said guardian or to any person interested, of their proceedings in the premises, or of their intention to determine upon the common convenience and necessity of extending said street.</p> <p>On the hearing of this petition, the records of the proceedings of the mayor and aldermen were introduced, and it appeared therein that said street was extended, on the petition of John Binney and others ; but it did not appear that notice had ever been given to any party interested in the land mentioned in the petition, or that any damages had been awarded to the owners thereof. The tenant, who had possession of the buildings, under a demise from Fiske, guardian of the owners, testified that when the mayor and aldermen were about opening the street, he was warned to remove the buildings in thirty days ; that he informed Fiske, the guardian, who said he had received no notice; and that one of the aldermen said he had nothing to do v ‘hi the guardian, and that when the minors came of age, they would be attended to. Said tenant received his damages from the city, m 1838, by agreement between him and the city authorities.</p> <p>It was proved that the petitioner was twenty-one years old in June, 1839.</p> <p>The case was argued at the close of March term 1840.</p>

Assumpsit on a promissory note given by the defendant to the plaintiff. The action was commenced at the April term, 1837, of the court of common pleas, and the defendant was then defaulted. After the default, the Mechanics’ Bank were allowed, on their petition for that purpose, to appear a nd contest the validity of the plaintiff’s attachment, under the Aev. Sts c. 90.

<p>Where the owner of two adjoining messuages and lots of land, one of which ne occu pies and the other of which he leases, constructs a drain, from the messuage which he leases, through the land which he occupies, into a common sewer, and permits hia tenants to use it for ten years and more, and then sells both messuages and lots, on the same day, to different purchasers, and in his deed to the purchaser of the messuage and lot which he formerly leased, does not mention the drain ; such purchaser acquires no right, by the deed, to the use of the drain through the other lot of land, if he, by reasonable labor and expense, can make a drain without going through that land.</p>

<p>Assumpsit on a special written agreement of the defendant to pay to the plaintiff $1652-52, on her delivering to him a deed with warranty, &c. within fifteen days from June 30th, 1840, of a parcel of land in Boston, provided the plaintiff should, at the time of the delivery of such deed, have a good and valid title to said land. The declaration alleged, and it was admitted by the defendant, that the plaintiff, on the lO.th of July, 1840, tendered to the defendant her deed of the land, containing the covenants stipulated for in the agreement, but that the defendant refused to accept the same and to pay the plaintiff the said sum. It was also averred in the declaration, that the plaintiff, at the time of tendering her deed, as aforesaid, had a good and valid title to said land. Defence, that the plaintiff had not such title.</p> <p>The case was submitted to the court on the will of Mary Gibbs, deceased, which was approved and allowed by the judge of probate for this county ; the proceedings of said judge of probate ; and other documents hereinafter referred to; from which it appeared that the plaintiff derived her title to the land, described in the deed which she tendered to the defendant, from Ebenezer Francis, who was appointed by said judge of probate a trustee under said will.</p> <p>The said Mary Gibbs, by her last will, devised certain real estate, of which the. land in question is a part, to her brother, Walter Channing, (in whom she expressed her full and entire confidence,) his heirs and assigns, in trust to receive the rents and profits during the lives of her four children therein named, and to the issue of such as should die before the expiration of the trust; and, on the death of the surviving child, to convey the same, and all the interest and estate given to the trustees, to her grandchildren then living, and to the issue of such grandchildren as should have deceased; with a declaration subjoined, that all the real estate, after the death of the longest liver of said children, should remain to the grandchildren and the children'of any deceased grandchild, in fee simple.</p> <p>The eleventh and thirteenth clauses of the will were as follows:</p> <p>11th. “And if my brother Walter, from any cause whatever, shall wish to be acquit and discharged from this trust, or if he shall be desirous of having some other person or persons joined and associated with him in this trust, I do hereby fully authorize and empower him to substitute and appoint in his stead and place, or as an associate trustee to act with him, as he shall think necessary or most expedient, any one or more persons that he alone or he and my executors shall think fit and well qualified to execute said trust, and thereupon to convey, assign, and transfer the whole real and personal estate, of every description, which he shall hold in trust under this will, to such person or persons, either to hold to him or them and their heirs, in his said Walter’s place and stead, or to hold jointly and together with him; and in either case, upon the same special trusts, and for the same uses, and subject to the same limitations as are expressed in this will, and as the said Walter held the same under and by virtue of this will. And further, in case my said children shall in writing request him said Walter, or any trustee or trustees he may appoint, to relinquish the trust, then I hereby authorize and request him and such other trustee or trustees, to relinquish said trust accordingly; and I do, in that case, authorize the judge of probate for the county where this will shall be proved, to appoint such trustee or trustees as he shall deem fit and suitable to execute said trust, in his or their place or stead; and in case said trustees, or either of them, shall refuse to resign the trust, upon such request by my said children, I hereby authorize and empower the judge of probate to remove him or them from the office of trustee, and to appoint other fit and suitable persons in their stead. And I further authorize, direct, md require the trustee and trustees under this will, who shall resign this trust at the request of my children, or be removed by the judge of probate, to assign and transfer to the person or persons who shall be appointed trustees by the judge of probate, all the estate, real and personal, which the trustee or trustees so resigning or removed then hold under this will, to be held to and by the new trustees so appointed, and the survivor of them and his heirs, upon the trusts, and for the uses, and subject to the limitations expressed and contained in this will, and no other. And to prevent a failure of trustees to execute this will, I authorize and request the judge of probate for the county where it shall be proved, to appoint such trustee or trustees to execute the trust herein contained and created, as the trustee herein named and my executors shall recommend; and on failure of such recommendation, such trustees as said judge shall deem fit and suitable.”</p> <p>13th. “I hereby give, devise, and grant to the said Walter, and any other trustee or trustees he may appoint pursuant to the power herein given him, full power and authority to sell and convey any part or parcel of the real estate devised to him in trust as aforesaid, except my two farms situate easterly of East-on’s Beach, in Middletown in the State of Rhode Island, and my farm situated westwardly of Easton’s Beach and Pond, in Newport in said Rhode Island, to hold to the purchaser in fee simple, discharged of said trust; or to exchange the same for other real estate; when the major part of my children shall recommend and advise the same ; and to invest.the proceeds in other real estate, or in personal estate, as my children shall direct and advise ; and in default of such direction and advice, as the said trustee or trustees shall think most for their interest; to be taken and held upon the same trusts, and for the same uses. and subject to the same limitations, as the estate -sold or exchanged was holden by said trustee or trustees.”</p> <p>The said Walter Channing died- without having made any conveyance, and without nominating a successor. Ebenezer Francis was thereupon appointed as trustee, by the judge of probate, under said will, and gave bond, in the year 1828. He joined with all the children of the testatrix in conveying the land in question in this action, to Henry Andrews—the said children joining in the deed to express their assent to the conveyance, and to release any right they had therein—the warranty being against themselves only. Said Andrews afterwards conveyed the same land to the plaintiff.</p> <p>Plaintiff to become nonsuit, if in the opinion of the court she had not a perfect title to said land, by reason of the matters aforesaid; otherwise, judgment to be rendered for the plaintiff for an agreed amount of damages.</p> <p>The case was argued in writing.</p>

<p>Where, after a suit is commenced by an administrator, the estate of his intestate is represented insolvent, the defendant may set off a note against the intestate xvhich falls due pending the suit, thougii not due and payable when the action was commenced.</p> <p>It seems that a debt of an insolvent intestate, solvendum in futuro, may in all cases be set off in a suit brought by his administrator, w here a defendant, in a suit by the administrator of an estate represented insolvent, files in offset a claim larger than that on which he is sued, he is entitled to judgment for the balance, and need not present his claim to the commissioners of insolvency. The judgment is to be presented to the judge of probate and by him added to the claims allowed by the commissioners.</p>

<p>A mortgage of a trader’s stock in trade is not fraudulent per sef though it is provided therein that, until condition broken, he may retain in his possession and use all the mortgaged property, without hindrance or interruption from the mortgagee ; and though there is an oral agreement of the parties, at the time the mortgage is executed, that the mortgagor may sell and dispose of the mortgaged property and apply the proceeds to his own use, he promising that if he should make large sales thereof, he would add to the mortgagee’s security by other property. The presumption of fraud arising from such a mortgage and agreement may be repelled by satisfactory evidence.</p> <p>An assignment, under St. 1838, c. 163, vests in the assignee only the property which the debtor, at the time of the first publication of the notice of the issuing of the warrant against him, could have sold, &c. or which might have been taken on execu tion against him. Therefore, where a debtor’s goods were mortgaged before an assignment under said statute, and the mortgage was recorded after the assignment but before publication of notice, it was held that the mortgagee was entitled to hold the goods against the assignee.</p>

<p>The payee of a note released the maker upon the maker’s assigning his property in trust for payment of his debts: The parties to the assignment afterwards agreed, by a sealed instrument, that the creditors should be paid fifty per cent, on their claims, in eighteen months ; that the debtor should not be sued or molested within that time ; and that if fifty per cent, should not be paid as aforesaid, the whole amount of the creditor’s claims should be paid in full, “ the release contained in said assignment to the contrary notwithstanding 3eld> that said note was not merged in Che latter agreement, and that the payee might maintain an action thereon against the maker, on his failing to pay fifty per cent, within the stipulated time.</p>

Debt on a bond for the liberty of the prison limits. Burlingame, the principal obligor, was committed to prison, on an execution in favor of the plaintiff, and was discharged, on the 13th of May, 1839, by two justices of the quorum, upon his taking the poor debtors’ oath.

<p>Assumpsit to recover the amount of freight earned by the plaintiffs’ vessel, on a voyage from Rio de Janeiro to Antwerp, under the agreement and on the facts hereinafter set forth.</p> <p>On the 23d of October, 1833, the parties made this agreement : “ It is hereby agreed between William J. Loring on the part of himself and Capt. John Brown, owners of brig Barbara, on the one part, and S. R. Putnam, of the house of Alfred Barrow, Putnam St Co. of Antwerp, on the other part, as follows, viz. That said brig shall proceed from this country to Rio de Janeiro, and there take on board a cargo of sugar, or coffee, or hides, or an assorted cargo of either two or all three of those articles, and proceed with the same for Antwerp. The cargo is to be provided by the parties above named in the following proportions, and at the rates of freight thereto annexed, viz. One twelfth of said cargo to be provided by the owners of said brig, free of freight. One fourth of said cargo to be provided by the said Putnam, who is to pay freight on delivery of the same at Antwerp, at the rate of four pounds ten shillings sterling per ton of 2240 nett English pounds of sugar, or 2000 do. of coffee, or 1700 do. of hides, with five per cent, primage. One third of said cargo to be provided by the said Putnam on freight, if earned up to four pounds ten shillings, with five per cent, primage — that is, in lieu of a specific freight on this one third of the cargo, there shall be paid whatever nett profit may arise on the sale of the same at Antwerp, until such nett profits may amount to four pounds ten shillings per ton as above mentioned ; any profit beyond this to belong to the said Putnam. And in estimating the profits on this one third of the cargo, it is agreed that whatever balance of nett proceeds may remain from the sale of the same at Antwerp, after deducting the remittances required to cover the bills drawn on London for the cost of the same, together with one per cent, banker’s commission, and the usual remitting charges, and also interest and insurance, shall be considered the nett profits on this one third of the cargo to be paid to the owners of the vessel in lieu of specific freight, until the said profits may amount to four pounds ten shillings per ton, as above mentioned, with five per cent, primage.</p> <p>“ One third of said cargo to be provided by the said Putnam on half profits in lieu of specific freight; that is, there shall be paid, in lieu of freight on the same, one half the nett profits which may arise on the sale of the same at Antwerp ; and the profits are to be estimated in the same manner as the above, ex-1 cept that interest and insurance are not to be deducted; and whatever balance may remain of the nett proceeds, after deducting the remittances to cover the costs in London, together with banker’s commissions and the usual remitting charges, shall be considered the nett profits on this one third of the cargo —half of which is to be paid to the owners of the vessel in lieu of freight on the same.</p> <p>“ It is agreed that the owners of the vessel are to make then own insurance on freight or profits, and are to have no interest in the insurance effected on the part of the cargo provided by the said Putnam. Capt. Brown is to be allowed a commission of one and a half per cent, for his services in attending to the purchase of the cargo, to be charged as part of the cost of the same, and whatever return commissions he may obtain shall be for the benefit of the shippers.</p> <p>“ The one fourth on freight and the one third on profits and one third on half profits, as above mentioned, are to be pur chased and shipped in one invoice, so that one part may have no advantage over the other as to the selection of the kind or quality of the goods ; and the profits and half profits shall be estimated on the result of the whole, whether composed of one article or more. The sale of the part of the cargo to be provided by the said Putnam is to be left entirely to the judgment and direction of Alfred Barrow, Putnam & Co. to whom the whole cargo is to be consigned for sales, remittances, &c.</p> <p>£C It is further agreed that if the price, at which one third of each article composing the cargo could be sold when the cargo is landed, be sufficient, on an average, to cover cost and freight of four pounds ten shillings, with five per cent, primage, the said freight shall be considered as earned on the one third £ on freight if earned,’ and forthwith remitted as may be desired; but this does not apply to the one third on one half profits. The one twelfth provided by the owners may be in such goods as they may choose, and sold at such time as they may desire.”</p> <p>The case was submitted to the court on the following state ment of facts : ££ Brown, one of the plaintiffs was the master of the vessel, and Loring, the other plaintiff, was the managing owner. The vessel sailed from New York for Rio de Janeiro, where the master did not purchase an entire cargo on account of the parties, as provided in the agreement, but took goods for the house of John Gardner & Co. to the amount of about fifty-nine tons, at a stipulated freight of four pounds per ton, and then put on board eleven tons for the plaintiffs, (being less than one twelfth of the cargo,) and two hundred and thirty-one tons for the defendants, being also less than their porportion ; the said two hundred and thirty-one tons having absorbed all the funds the defendants had provided, although they had funds enough, had the master assorted the cargo in different proportions.</p> <p>“ The master of the vessel had instructions from Loring, be fore she sailed from New York, to procure goods on freight to the consignment of the defendants, for any extent which the one twelfth of the owners would cost over their funds in Rio, if he could, at four pounds per ton, being less than the rate of freight .agreed for with the defendants for the one fourth of the cargo, which they agreed to ship on specific freight; and in the same letter of instructions, in which these orders were given, was this expression, ‘ I have no douht that you will be able to obtain freight from the house which does the business of the vessel, even to a greater extent.’</p> <p>“ The defendants had no knowledge of these instructions having been given.</p> <p>“ Loring’s orders to the master further stated, c You are to receive a commission of one and a half per cent., in consideration of which, you are to employ such house of high standing as will serve the shippers best; whatever return commission you may obtain, to be credited to the shippers.’</p> <p>ci Putnam’s instructions to the master are silent on the subject of his procuring freight. They direct the purchase of the eleven twelfths of the cargo, which he had agreed to provide, and its shipment, ‘ for account of whom it may concern,’ ‘ freight as per agreement,’ subject to the order of the defendants, to whom the cargo is to be consigned for sales, &c.</p> <p>“ The defendants had assigned to a third party one fourth of their interest in the agreement and shipment, before the vessel arrived at Rio. This was without the knowledge of the plaintiffs. The master employed the house of John Gardner & Co., who made the purchase of the cargo, and were allowed the usual full commission, and in consideration of which, without returning any of said commission, which they would have done, in lieu of making the shipment, had the master requested it, they, as above stated, made a shipment of fifty-nine tons on freight at four pounds per ton, ten shillings less than the rate agreed upon with the defendants for the one fourth of the cargo agreed to be shipped on specific freight, but one pound ten shillings higher than the current rate of freight at Rio. This shipment, like the rest of the cargo, was consigned to the defendants’ house at Antwerp.</p> <p>“ There was a loss on the whole cargo, so that no freight was earned on the eight twelfths shipped on profit, and the amount of freight paid by Gardner & Co. would not make up said loss. The defendants received the freight on the fifty-nine tons, shipped by John Gardner & Co., amounting to two hundred and thirty-eight pounds, two shillings and four pence, but decline to pay it over to the plaintiffs.</p> <p>“ The master of the vessel made no settlement whatever of accounts ^ith the house at Antwerp. He left them to be settled between Loring and the defendants. No accounts were received by Loring from Antwerp, for a long time, in consequence of the necessary delay in selling the cargo. This claim was made immediately on their receipt, by which he was first informed of the omission to credit the freight on Gardner’s shipment. The defendants had no opportunity to ratify or object to the doings of the master before the end of the voyage.</p> <p>“ If the court are of opinion that the plaintiffs are entitled to recover, the defendants are.to be defaulted, and judgment is to be entered against them for damages and costs, the amount to be ascertained by an assessor, if the parties do not agree ; otherwise, the plaintiffs are to be nonsuited, and the defendants are to recover their costs.”</p>

<p>If a debtor gives, and the creditor receives, in full satisfaction of the debt, the note of a third person for a smaller sum than the amount of the debt, it is a good accord and satisfaction to bar a suit by the creditor to recover the balance of the debt. So if the creditor receives a less sum than is his due, in satisfaction of the whole, before the day of payment.</p> <p>Parol evidence is admissible to explain a receipt, and show to what demands it is applicable.</p> <p>Where a receipt, given to one of two partners, was lost, and parol evidence was introduced to prove the terms thereof, it was held that it was for the jury to determine whether the receipt was intended to discharge such partner only, or to discharge the other partner also.</p>

<p>This case came before the court on the report of the evidence at the trial before Morton, J. at the November term, 1839. The facts sufficiently appear in the opinion delivered by</p>

This was a writ of entry, in which the demandants counted on their own seizin. The tenants pleaded the general issue, and filed specifications of defence, claiming title to the demanded premises under John French.

Petition for a writ of prohibition. The petitioner alleged that he was, and for two years last past had been, captain of a vol unteer company of militia, called the Suffolk Light Guard, attach ed to and forming a part of the first regiment, in the first brigade of the first division of the militia of this Commonwealth: That on the 6th day of March, 1841, certain charges, and specifications thereof, were preferred against him, and forwarded to the major general commanding the…

This was an action of assumpsit, brought by J. H. Williams, G. Adams, and S. G. Bridge, to recover the amount of an alleged loss upon the brig Draco, insured by the defendants, at and from Boston to Sydney in New South Wales, and at and from thence to her port of discharge in the United States. The policy bore date August 26th, 1836, and caused to be insured S. G. Bridge, for whom it concerned, $8000, on said brig, &c. and was indorsed as follows : “ Sept. 10, 1836.

Hiram Johnson & James Hooton were summoned as trustees of the principal defendants, Blodgett & Burns, and the only question raised in the case was, whether said Hooton was chargeable. From his answer, and the facts set forth in the answer of said Johnson, which the parties agreed should be taken in connexion with the answer of Hooton, it appeared that on the 1st of April, 1837, said Johnson & Hooton, then residing ir.

Assumpsit on the money counts, to recover one third part of certain money alleged to' have been received by the defendant under an award of the commissioners, appointed pursuant to an act of congress, (St. 1832, c. 199,) to carry into effect the treaty of July 4th, 1831, between the United States and France.

Assjmpsit for goods sold and delivered to the defendants, a manufacturing corporation, doing business at Uxbridge, in the county of Worcester. Defence, that Robert Rogerson was debtor for the goods, and not the defendants.

<p>Scire Facias against bail. The parties submitted the case to ‘he court upon these facts :</p> <p>The plaintiff recovered a judgment, at the January term, 1839, of the court of common pleas, against one Cochran, upon which an execution was issued on the 26th of February, 1839, returnable into said court on the first Tuesday of April following. The execution was delivered, on the day of its date, to a deputy sheriff in this county, where said Cochran resided at the time of the service of the original writ; and said deputy was ordered immediately to arrest said Cochran on said execution. On the 27th of said February, the said deputy made this return on the execution : “ By virtue hereof, I made diligent search for property as well as for the body of the within named Cochran ; finding neither, I return this execution in no part satisfied.” On the next day (Feb. 28th, 1839) this action was commenced against the defendants, who were bail of said Cochran in the original suit.</p> <p>Judgment to be entered for the defendants, if this scire facias issued prematurely; otherwise, judgment to be entered for the plaintiff.</p>

<p>The law (Rev. Sts. c. 142,) authorizing magistrates to issue warrants to search for and seize lottery tickets, or materials for a lottery, unlawfully made, provided or procured, for the purpose of drawing a lottery, is not inconsistent with the 14th article of the declaration of rights.</p> <p>The house or place where lottery tickets, &c. are believed to be concealed, is sufficiently designated and described in a search warrant, according to the provision of the Rev. Sts. c. 142, § 3, by denominating it the “ office of D.” and truly stating the number thereof and the street in which it is situate, although A. occupies the office with D.</p> <p>If a search warrant and the complaint on which it is issued be on the same paper, and the things to be searched for be properly designated and described in the complaint, and the warrant direct the officer to search for the things “ mentioned in the above complaint,” the process is legal and sufficient, without any further designation or description of the things in the warrant itself.</p> <p>Books kept in relation to the proceedings respecting a lottery are “ materials for a lottery,” within the meaning of the Rev. Sts. c. 142, and may be seized on a search warrant.</p> <p>The admission in evidence, on the trial of the defendant, of articles seized on a search warrant and taken from him, is not a violation of the 12th article of the declaration of rights.</p> <p>The prohibition, in the Rev. Sts. c. 132, of the sale, &c. of tickets in “any lottery not authorized by law,” extends to all lotteries not authorized by a law having force in this Commonwealth.</p> <p>On the trial of a defendant, on an indictment for unlawfully having in his possession lottery tickets, with intent to sell them, after it was proved that he had such tickets in his possession, the judge instructed the jury, that “ if from the whole of the evidence, they were led to the belief that the defendant did sell and deal in lottery tickets, and had them in his possession for that purpose, as charged in the indictment, they would be authorized to find him guilty, unless he had succeeded on his part, as had become his duty, to explain the facts and circumstances consistently with his innocence of that unlawful intention.” Held, that there was no legal exception to this instruction.</p> <p>In an indictment on the Rev. Sts. e. 132, for having in possession lottery tickets with intent to sell or offer them for sale, it is not necessary to aver the intent of the defendant to sell or offer them for sale within this Commonwealth.</p>

<p>By ** the money or property of another,” the embezzlement of which by any agent, clerk or servant, without the consent of his employer, is made larceny by the Rev. Sts. c. 126, § 29, is meant the money or property of any person except such agent, clerk or servant who embezzles it.</p> <p>An auctioneer, who receives money on the sale of his employer’s goods, and does not pay it over, but misapplies it, is not such an agent or servant as is intended by the Rev. Sts. c. 126, § 29 ; whether he receives the goods for sale, in the usual mode, or receives them on an agreement to pay a certain sum therefor, within a specified time after the sale. The money received by an auctioneer, for goods sold by him, in both these cases, is his own, and not “ the money of another.”</p>

Replevin, to try the plaintiffs’ title to the brig Canton. The parties agreed the following facts : Both plaintiffs are inhabitants of Portland. In March, 1839, the brig belonged to Turner, one of the plaintiffs, and A. Staples of Hallowell, and in that month sailed from Portland on a voyage to Matanzas, and thence to Boston. Turner was the managing owner, and had the entire control of the brig.

It appeared from the answer of John K. Simpson, who was summoned as trustee of the principal defendants, that they procured from the Neptune Insurance Company an insurance on their furniture, payable to said Simpson in case of loss : That the policy was made thus payable, in order that Simpson, in case of loss, might receive the amount of a debt due to him from the assured, which was secured by a mortgage of said furniture : That said furniture was destroyed by fire, on the…

<p>The general owner of real estate is not answerable for acts of carelessness, negligence and mismanagement committed upon or near his premises, to the injury of others, if the conduct of the business which causes the injury is not on his account, nor at his expense, nor under his orders or efficient control.</p> <p>Where A. agreed to convey land to B. and B. agreed to build a house thereon and pay for the land, and while the agreement was in force, B., in preparing to build the house on his own sole account, by workmen employed by himself alone, undermined the wall of the adjoining house of C., whereby it was injured ; it was held that A. was not answerable for this injury, although the title to the said land remained in him at the time when the injury was committed.</p>

<p>A. sold a pew to B., and the parish conveyed it to B. with warranty, having a bond from A. to save the parish harmless,te if any person or persons should establish their title to said pew against the said obligor or his assigns.” C. claimed the pew, and he and B. without notice to A, submitted the question of title to arbitrators, who determined that the pew belonged to C., and that B. should make to C. a deed conveying all his (B.*s) right in the same ; and judgment was rendered on this award. C. called upon the parish for indemnity under their covenant of warranty, and the parish indemnified him without suit, and thereupon commenced an action against A. on his bond. Held, that the title of C. to the pew was not established, within the meaning of the bond, and that A. might show in defence, that the title was not in C.</p> <p>Evidence of adverse possession for twenty years or more warrants a presumption that the possessor had a deed of the property possessed, and that all acts, necessary to give the deed effect, were duly done.</p> <p>In the trial of a question of title, where the defendant relies on long possession, he may give in evidence, in order to prove that the possession was adverse and under claim of title, the declarations of the party, through whom alone the plaintiff claims or can establish his claim, that such party had sold the property in question to the person who was in possession, and under whom the defendant claims.</p>

Assumpsit on the following order accepted by the defendants : “ Boston, April 8, 1837. Messrs. Harrington & Co. Please pay Mrs. C. Perry two hundred dollars out of the first money belonging to me, which you may receive on account of the Eastern Star, and oblige your ob’t serv’t. D. H. Creeig.’ This indorsement was on the order: “May 15th, received three dollars and seventy-five cents.

<p>Where a defendant sets up the plaintiff’s release of the demand in suit, and the plaintiff seeks to avoid the release on the ground that he was induced to make it by the mis* representations of the defendant concerning his assets, &c. the burden of proof is on the plaintiff, and he must show that such misrepresentations were intentional. Undesigned misrepresentations, in such case, will not render the release void.</p>

At the June term, 1838, of the court of common pleas held at Nantucket, the trustee made his first answer, in which he stated that there was an unsettled account between him and the principal defendant, and that he could not state the account at that term.

<p>This was an action of assumpsit, in which the plaintiffs counted on a written agreement of the defendants to accord a credit, and also on an accepted bill of exchange. The money counts were added. The case was tried before Putnam, J. and the following are the facts and documents, that were in evidence, so far as they relate directly to the points decided by the full court: The defendants are bankers in London, and Francis J. Oliver, at the time of the transactions hereinafter stated, was their general agent in Boston. In March, 1837, John Bradford of Boston was indebted to the plaintiffs, who are merchants in Gottenburg, in a large sum for iron sold and delivered, and he procured from said Oliver the following letter of credit: “ Boston, 4 March, 1837. Messrs. Morrison, Cryder & Co. London Mr. John Bradford of this city having requested that a credit may be opened with you for his account in favor of Messrs. D. Carnegie & Co. of Gothenburg for three thousand pounds sterling, I have assured him that the same will be accorded by you on the usual terms and conditions. Respectfully your obt. serv’t</p> <p>Francis J. Oliver.”</p> <p>“For £ 3000.”</p> <p>At the same time, Oliver took from Bradford this receipt and engagement : “ Boston, March 4, 1837. Received of F. J. Oliver, attorney of Morrison, Cryder & Co. of London, the original letter of credit for £ 3000 sterling, of which the preceding is a copy ; in consideration whereof, I hereby pledge myself to cover at maturity the amount of all drafts that may be drawn on my account by virtue of said letter of credit, together with all charges on the same, by remittances to said Morrison, Cryder & Co. in London, in good bills of exchange on England, bearing my indorsement, giving said Oliver a note of such bills at the time they are remitted. John Bradford.”</p> <p>On the same day, Bradford wrote to the defendants, informing them that Oliver had granted him a letter of credit in favor of the plaintiffs, for £3000, which he should forward to the plaintiffs by the packet of March 8th, and requesting the defendants to accept the plaintiffs’ drafts for that amount. Bradford also, on the same day, wrote to the plaintiffs, enclosing the letter of credit, and requested them to value for the amount of £3000, at ninety days’ sight, and pass the same to his credit. On the 18th of April following, the defendants wrote to the plaintiffs thus : “ We have received a letter from Mr. John Bradford of Boston, of 4 March, requesting us to confirm to you a credit of £ 3000 on his account; but, under the very peculiar circumstances of the times, we regret that we cannot comply at present with his wishes.” On the 26th of the same April, the plaintiffs drew a bill on the defendants for £ 3000 pounds sterling, at ninety days’ sight, payable to Messrs. Denison, Heywood, Kennard & Co. This bill was presented for acceptance, on the 6th of May, and for payment, on the 7th of August, following ; but it was neither accepted nor paid by the defendants, and was thereupon protested.</p> <p>At the time when the aforesaid letter of credit was given by Oliver, he knew that Bradford was indebted to the plaintiffs, and that he wished to remit to them in payment on account. Bradford had before frequently obtained letters of credit from Oliver for the purpose of remittance in payment to the plaintiffs, and for other purposes, (to the amount, in the whole, of forty or fif ty thousand pounds sterling,) which had been honored and paid.</p> <p>Biadford was indebted to the plaintiffs, when this last letter of credit was given, in a much larger sum than £ 3000, which was payable, from time to time, during the summer of 1837.</p> <p>The defendant’s commission for according credit was one ner cent., and Bradford gave security to Oliver.</p> <p>The usual time of drawing upon London from Gottenburg s at ninety days’ sight.</p> <p>After the aforesaid evidence was given by the plaintiffs, the defendants opened their defence. They contended that the contract, contained in the letter of credit, was to be governed by the law of England, and introduced the depositions of Sir Frederick Pollock, and of Matthew Davenport Hill, Esq. English barristers, “ to show that, by the law of England, there was no contract between the plaintiffs and defendants ; and that the aforesaid letter did not amount to an acceptance of a bill of exchange drawn in pursuance of it.”</p> <p>The defendants also proved that said Bradford failed on the 24th of April, 1837, and assigned all his property, on that day, for the benefit of his creditors, under St. 1836, c. 238 : That the plaintiffs signed that assignment, at the same time filing with the assignee their account against Bradford, “ in which they claimed conditionally for the £3000 sued for in this action, in case they should not realize it of the defendants, and for the remaining balance absolutely”: That the plaintiffs subsequently received a dividend upon said remaining balance, at the same time declining to receive a dividend on said £3000. The defendants contended that the plaintiffs, by these acts, released their claim against the defendants ; but the judge ruled that they had not.</p> <p>By consent of the parties, a verdict was taken for the plain tiffs, subject to the opinion of the whole court upon a report of the evidence.</p>

<p>A writ of error lies to reverse a sentence of additional punishment awarded on an information against convicts who have been before convicted and sentenced to the state prison.</p> <p>The validity of former convictions and sentences cannot be drawn in question on an information for additional punishment, but they are held to be valid until reverse 1 on error.</p> <p>An information for additional punishment need not set forth the previous convictions and sentences in extenso, but is sufficient, if it set forth the convictions with such particularity as to identify them and indicate the character of the offence charged, and if it also set forth the sentences with such exactness as to show that they bring the convict within the law for additional punishment.</p> <p>An information for additional punishment for a third offence of a convict, who has been before sentenced to additional punishment for a second offence, is irregular, if not fatally defective, if it merely recite the first information in which the two former convictions were averred, instead of directly averring them.</p> <p>The offence of breaking and entering, in the night time, “a house not occupied as a dwellinghouse,” and stealing therein goods of less than $ 100 value, was a simple larceny only and not punishable by solitary imprisonment, and confinement to hard labor in the state prison for the term of two years, either by St. 1804, c. 143, or St 1805, c. 101.</p> <p>A person convicted In 1833, under St. 1815, c. 136, of cheating by false pretences, might legally be sentenced to pay a fine and costs within a limited time, and in default thereof to suffer imprisonment, &c. according to the provisions of St. 1788, c. 53.</p> <p>A sentence to imprisonment, if a fine and costs be not paid within a limited time, is not for non-payment of the fine and costs, but for the offence of which the party is convicted ; and if the fine and costs be not paid within the time limited, the sentence to pay them becomes null, and the sentence to imprisonment alone remains in force.</p> <p>The St. of 1815, c. 136, did not authorize a sentence to solitary imprisonment, in addition to that of confinement to hard labor, for the offence of cheating by false pretences : Nor was such sentence authorized by St. 1812, c. 134.</p>

<p>By the “ act to amend the revised statutes,” as well as by the statutes previous^ in force, if an indictment for a third offence recites two former convictions and sentences to a state prison, and they are* found by the verdict, the additional punishment, prescribed by that act, ought to be included in the sentence then passed upon the convict, and cannot legally be awarded against him on an information afterwards filed.</p> <p>A convict, who has been sentenced to additional punishment for a second offence, is nevertheless liable to additional punishment for a third offence.</p>

<p>The Rev. Sts. c. 143, § 19, do not authorize the courts to sentence a convict to imprig* onment in the house of correction for a longer time than that for which he might, by Rev Sts. c. 126, § 17, be imprisoned in the county jail for the same cause.</p> <p>Where the municipal court, or court of common pleas, renders an erroneous judgment against a convict, and he brings a writ of error to reverse it, this court cannot render a new judgment, nor remit the case to the court below in order that a new judgment may be rendered there, but can only reverse the judgment and discharge the convict*</p>

By the will of Benjamin P. Homer, the appellees, F. Ho mer and N- P. Russell, were appointed trustees of Mary Dixon, one of the appellants. (See ante, p. 196.) Said trustees, in May 1839, presented to the judge of probate their first account, in which they charged themselves with the personal property described in an inventory, and appraised at $ 59,146 ; and with money received, to the amount of $ 1486-02 ; in the whole, $ 74,097*02.

This was a writ of entry to recover two lots of land in South Boston, distinguished as lots No. 24 and No, 25, mortgaged to the demandant by Charles Gaylord, January 16, 1837, to secure… Held: the demandant would relinquish his claims on the demanded premises. And the bank, upon such assurance of the demand-ant, took said mortgage of said Gaylord, and gave the time of payment, which had been stipulated, and also gave up the old notes of Gaylord, to which Jenkins was a party.

Assumpsit on a policy of insurance dated August 8th, 1836, upon the brig Adams, Joseph Gillespie, master, for a voyage from Wilmington, in North Carolina, to Jamaica, in the West Indies, and back to a port of discharge in the United States. The brig was wrecked at Point Este, on her passage from Jamaica to the United States, and wholly lost.

Trespass upon the case. The plaintiff claimed damages for injuries caused by narrowing a certain passage way, and darkening the same by erecting a building over it, and thereby also interrupting the access of light and air to his adjoining messuage. In one of the counts, the plaintiff claimed a right to said passage way by prescription.

<p>Trespass for breaking, &c. the plaintiffs’ close in Mount Washington, called the twelve acre lot, and cutting down trees.</p> <p>It appeared, from the report of Wilde, J. before whom the case was tried, that the locus in quo was wild land, but connected with a pasture belonging to the plaintiffs’ ancestor, who had formerly cut timber and firewood thereon, and who, and those claiming under him, had maintained a fence, for more than forty years, on the northerly side thereof, as hereinafter stated in the opinion of the court. The easterly side of said lot bounded on the westerly line of the town of Sheffield.</p> <p>It was proved or admitted that the defendant had recently cut wood on the lot in question.</p> <p>The plaintiffs offered in evidence the following entry’ in the records of the original proprietors of Mount Washington, which was signed by two of a committee of three who had been appointed by said proprietors to set off and assign lots : “ May 28th, 1789. Then surveyed and laid out to David Benton twelve acres of land adjoining to Sheffield line,, and is laid out on the original right of John Fellows, in the second division, being butted and bounded as followeth : viz. beginning at a heap of stones in Sheffield west line, westward from said Benton’s dwellinghouse ; thence north, 73 ° west, 3 chains to a chestnut staddle marked, and stones to it; thence south, 23 ° west, 14 chains and 56 links to a stake and stones ; thence north, 73° west, 5 chains and 50 links to a walnut tree marked, at the foot of the mountain ; thence south, 41° 26' west, 6 chains and 4 links to a chestnut staddle marked ; thence south, 73° east, 13 chains and 36 links to a stake and stones in Sheffield line ; thence north, 14° east in Sheffield line, 19 chains and 80 links to the first mentioned corner.”</p> <p>The plaintiffs produced no evidence that John Fellows was an original proprietor, and his name did not appear in the list of such proprietors contained in their records. The defendant, therefore, objected to the admission of the above entry in evidence. But the judge ruled, that as said location was allowed to be recorded, and was assigned to the right of Fellows, by a committee of the proprietors appointed for that purpose, it might be presumed that he was one of the proprietors.</p> <p>It was proved that David Benton died in 1797, leaving six heirs, among whom his estate was divided. The lot in question was not set off to either of them, but was set to his widow as part of one third of his estate, which he devised to her, to hold during her life. After her death, his son, David Benton, by deed, dated February 18th, 1801, released to Stephen Benton, another son, certain real estate, which was thus described : “ All and every part of the land or real estate lying in Sheffield, which was willed by David Benton to Sara! Benton, his wife, and which, by virtue of said will, I now in any way claim, or hereafter may claim. Also all that my sister Lydia, wife of Samuel Taylor, had, by virtue of said w.ll; she having before conveyed the same to me.” The defendant objected, that this deed did not convey the lot in question, which is situate in Mount Washington. But the judge, for the purpose of the trial, ruled that said deed conveyed all David’s right to that part of his father’s estate which was assigned to the widow under his will.</p> <p>The plaintiffs also introduced a deed from said Stephen Benton to Benjamin Sheldon, dated June 13th, 1803, and from said Sheldon to Atwater Cook, dated August 26th, 1811, conveying land bounded by the line between Sheffield and Mount Washington, “to the southeast corner of land deeded by Asa Sparks to David Benton ; thence westerly on the north line of land which is the south line of said parcel of land deeded by said Sparks to said David Benton, now owned by said Sparks, to the foot of Mount Washington ; thence northerly, by the foot of said mountain, to the southwest corner of the Haskins farm now occupied by Wyllis Bartholomew, which is the northwest corner of said piece of land deeded by said Sparks to David Benton.” The defendant proved that the Haskins corner was thirty, or forty rods east of the corner of the twelve acre lot, and contended that the deed did not cover the locus in quo. The judge ruled, for the purpose of the trial, that the deed did cover said twelve acre lot.</p> <p>The plaintiffs introduced a deed, dated April 3d, 1815, from Atwater Cook to Thaddeus B. Cook, (the father of one of the plaintiffs,) of a farm, the westerly bound of which is the line of the town of Mount Washington, which is the east line of the twelve acre lot: Also an indorsement on said deed by Atwater Cook, signed, sealed and acknowledged by him on the 10th of November, 1830, reciting that the westerly course to Mount Washington line, in said deed, “ did not extend so far westwardly as was intended, not knowing at that, time where said line was, but was supposed to be further west, to me foot of Mount Washington west, and to contain all the land that is in the town of Mount Washington west of Sheffield line, and to contain all that part of a certain piece of land deeded by Asa Sparks to David Benton, and by Stephen Benton to Benjamin Sheldon, and from said Sheldon to said Atwater Cook, the grantor, which was agreed upon by the within parties.” Said indorsement concluded thus: “ I therefore do covenant with the within grantee [Thaddeus B. Cook] his heirs and assigns, to warrant these premises according to the true meaning of the within deed.”</p> <p>The defendant contended that this indorsement was not a deed sufficient to convey the twelve acre lot; but the judge ruled otherwise for the purpose of the trial.</p> <p>To all these rulings the defendant excepted.</p> <p>The defendant then introduced two deeds, dated January 8th, 1830, from Robert Campbell and Jeremiah Dibell, conveying to him lands which included the twelve acre lot : Also a deed, dated July 1st, 1800, from Robert Campbell, senior, to said Robert Campbell, of “all the land which is to be laid to the right of land in Mount Washington, whereof Jonathan Petitt was the original proprietor, be the same more or less : ” Also a deed, dated March 10th, 1779, from Jonathan Petitt to Robert Campbell, of “ one right of land in Tauconnock mountain, viz. lot No. 17, with the undivided, he (said Campbell) paying the cost that hath or shall arise upon said land : ” Also a deed from John Dibell to Jeremiah Dibell.</p> <p>The defendant introduced proof that Jonathan Petitt and John Dibell were original proprietors of Mount Washington ; and also introduced a copy of a survey bill of undivided land laid out to Robert Campbell, senior, and Jeremiah Dibell, covering that part of the twelve acre lot on which the alleged trespass was committed, (with other lands,) upon the original right of said Jonathan Petitt and John Dibell. This survey was signed by two only of a committee of three, appointed by the proprietors. The plaintiffs objected that two proprietors could net legally make a joint pitch; but this objection was overruled.</p> <p>By consent of the parties, a verdict was returned for the plaintiffs, which was to be set aside, if the evidence was not sufficient to sustain it, or if the proceedings at the trial were wrong.</p> <p>This case was argued at the last September term.</p>

This was an action against a deputy sheriff for not attaching the real estate of David Sherman on a writ sued out against him by the plaintiffs.

Trespass upon the case against a deputy sheriff for not returning, or delivering to the plaintiff, a bail bond alleged to have been taken by the defendant, in a suit by the plaintiff against Otis W. Dimmick.

Assumpsit to recover money expended in repairing a tavern house and other buildings of the defendant, situated in Lee. The case was tried before Dewey, J. from whose report it appeared that early in the year 1834, the plaintiffs, by an oral contract with the defendant, bought the said house, &c. and the land connected thérewith, and received possession of the same.

<p>Covenant broken. The declaration alleged, that on the 6th of April 1839, the plaintiff and defendant, by their deed of that date, mutually agreed to submit to three arbitrators (named in said deed) the valuation of certain real estate owned by the defendant, which he had promised to sell and convey to the plaintiff, and which the plaintiff had promised to purchase and pay for ; and that when said arbitrators should appraise said estate, and report in writing the sum which the plaintiff should pay to the defendant for the same, the plaintiff would pay such sum to the defendant, in the plaintiff’s notes, or the notes of J. Pomroy & Co., half in six months, and half in twelve months, with interest, and the defendant would accept such sum in such notes, and convey the said estate to the plaintiff by a deed of warranty ; and that either party, who should not abide the award of the arbitrators, and forthwith fulfil the same, should pay to the other party the sum of fifty dollars : That the arbitrators, on the 8th of April 1839, appraised said estate at $260, and reported their appraisement in writing : That the plaintiff was ready and willing to make and execute said notes, and to do and perform all other acts and things by him to be done and performed on his part, by virtue and reason of said deed ; but that the defendant, on the same day when said appraisement was made, and immediately after it was so reported, and in the presence of the arbitrators and of the plaintiff, declared his positive and absolute refusal to abide the appraisement and award ; by reason of which said declaration and act of the defendant, the plaintiff was unable to do with effect the acts which he otherwise should and would have done in performance of his engagement to the defendant.</p> <p>The parties submitted the case to the court upon a statement of facts, as follows :</p> <p>The plaintiff and defendant duly executed the agreement or covenant set forth in the declaration : The arbitrators or ap-</p> <p>praisers therein named met the parties and made an appraisement in writing, and indorsed the same on the back of said agreement, in these words : “ The arbitrators named in the within agreement, having examined the premises, &c. do award that said Pomioy pay to said Gold the sum of two hundred and sixty dollars, in the manner within mentioned. April 8th, 1839.” (Signed by all the arbitrators.) After the award or appraisement was made known to the parties, and before the parties separated, the defendant said he never would let the land go at that price. No demand was ever made by the plaintiff on the defendant for a deed, or for the fifty dollars mentioned in the agreement, before this action was commenced ; nor did the plaintiff ever tender to the defendant such notes as are mentioned in the agreement.</p> <p>It was agreed that the court might draw such inferences from the foregoing facts, as a jury would be warranted to draw from them.</p>

Debt for rent. The facts, as agreed by the parties, were these : The plaintiffs demised their tavern stand, in Pittsfield, to L. Brown, for one year from April 1st 1838, at a rent of 0 300, payable quarterly. Brown gave the defendants a written lease of said demised premises from December 20th 1838, to February 1st 1839, under which they occupied, and for which occupation they paid Brown according to the terms of said lease. They also held over until February 17th 1839.

<p>If an action to recover damages assessed for flowing lands by a mill dam is brought jointly against the person who owned the mill when the damages were assessed, and the person who occupied it when the action was brought, the plaintiff may amend by discontinuing against the former.</p>

<p>Where on a complaint, under the Rev. Sts. c. 116, for flowing lands, the complainat obtains judgment on a verdict of the sheriff’s jury, he is entitled to the costs of foi mer trials in which the verdicts returned for him were set aside for irregularity*</p>

<p>The Rev. Sts. c% 116, make no provision for a reassessment of gross or annual damages assessed against a mill-owner for flowing lands, after the land-owner has elected to take the gross damages.</p> <p>A mill-owner can maintain a complaint for reassessment of annual damages caused by his flowing lands, only when he stands liable for such damages under an existing judgment : He, therefore, cannot maintain such complaint, when the land-owner has elected the gross damages.</p>

At the trial of this action, which was for slander, the defendant offered to prove, in mitigation of damages, that the plaintiff had, for several years, been hostile to the defendant, and had proclaimed that he did not wish to live in peace and on good terms with him. The evidence was rejected, and a verdict returned for the plaintiff. The defendant alleged exceptions.

<p>This case came before the court on the report of the evidence, &c. at the trial before Dewey, J. The facts are fully stated in the opinion given by the chief justice.</p>

<p>This was a complaint and petition for a jury to assess damages done by the respondent’s flowing the complainant’s land by means of a mill-dam. The respondent claimed a right to flow said land without compensation ; and to prove this right he introduced the deposition of Israel A. Jones, who built the dam in 1825, and conveyed it to the respondent in 1831. Jones deposed, that before the dam was erected, the complainant requested and urged him to build it and erect a mill, for the benefit of the neighborhood, and promised that if it should overflow his land, he would not ask any damages. Evidence was also introduced, that the complainant, in 1829 and in 1836, had stated that he asked no damages for the flowing ; remarking, in 1829, that the privileges of the mill were greater than the sacrifice of the land flowed ; and in 1836, that he gave the privilege of flowing his land for the benefit that he derived from the mill.</p> <p>The case was submitted to the court on the foregoing evidence.</p>

<p>Where a magistrate in another State, to whom a commission to take a deposition was issued by this court, certified that the deponent made oath before him, that the deposition contained the truth, the whole truth, and nothing but the truth ; and it appeared that all the interrogatories and cross-interrogatories were put and answered ; it was held that the deposition was admissible in evidence, although it did not appear that the magistrate conformed to the seventh rule of the court, which was annexed to the commission.</p> <p>A clerk of a court, who, in the course of his business, has often seen what he believed to be the official signature of A., as justice of the peace, and has certified the same as such, to the pension office, may be called to prove the handwriting of A., though he has never seen him write.</p> <p>If a subscribing witness to a bond be interested at the time of attestation, and dead at the time of the trial, evidence of his handwriting is not admissible to prove the execution of the bond.</p> <p>It is not necessary that there should be written evidence of the acceptance and approval of a cashier’s bond, in order to render his sureties liable thereon ; and parol evidence is admissible that his bond was laid before" the board of directors, and that they expressed themselves satisfied with it.</p> <p>A cashier’s bond is not void, as against the policy of the law, by reason of its being approved by a hoard of directors, some of whom had executed it as sureties.</p> <p>In 1831, while St. 1828, c. 96, was in force — which provided that a cashier should retain his place until removed therefrom, or another should be appointed in his stead .— a cashier was appointed, and gave bond for the faithful discharge of the duties of his office 2 In 1832, he was re-appointed, but gave no new bond : In 1836 and 1837. he was guilty of defaults, and his bond was afterwards put in suit. Held, that his sureties were liable on the bond, although it appeared from the records of the directors, that in 1831, and also in 1832, he was appointed “ for the year ensuing.” Dewey, J. dissenting.</p> <p>The sureties of a cashier are not exonerated from liability for his defaults, by reason of the neglect of the directors to examine, as required by the by-laws, into the state of the affairs of the bank.</p> <p>In a joint action against a cashier and his sureties on his bond, the admissions and declarations of the cashier, as to his defaults, are evidence against the sureties.</p>

<p>This was a proceeding on a petition to the county commissioners of Franklin for a jury to assess damages sustained by the petitioners, by the discontinuance of a highway in Hawley. A jury was ordered and empannelled, who returned a verdict, awarding damages to the petitioners. Upon the return of the verdict to the court of common pleas, the respondents moved that it should be set aside, for the reasons hereinafter mentioned in the opinion of the court. This motion was overruled by Williams, C. J. and the verdict was accepted and ordered to be certified, with the adjudication thereon,-to the county commissioners. • The respondents alleged exceptions.</p> <p>This case was argued at the last September term.</p>

<p>A surety, who pays the debt of the principal by giving his own promissory note therefor, may maintain an action against him for money paid.</p> <p>Co-sureties, who pay the debt of their principal by giving their own joint and several promissory note, are not entitled to several actions against him for reimbursement: Yet if one of the sureties sues alone for reimbursement, and the principal does not take advantage of the non-joinder of the other, but suffers the action to proceed, and pays the sum which is recovered against him ; such surety is liable to his co-surety for half me amount so recovered, whether it be the whole or only a part of the sum jointly paid by both.</p> <p>One of two joint sureties, with the consent of the other, gave up security which he had .¿ken for the benefit of both, on receiving the written promise of the principal that he would pay the debt or return the security. This promise was not performed, and the sureties paid the debt ($* 1080) by giving their joint and several note therefor, payable on time : Before that note was paid or payable, the surety to whom said ■promise was made sued the principal for breach thereof, and added the money counts to his declaration : The action was, by rule of court, submitted to referees, who awarded that the plaintiff should recover $600, and the principal paid him that sum, without judgment on the award : The other surely then brought an action to recover of his co-surety half the sum thus received by him of the principal. Held, that he was entitled to recover. Held also, that parol evidence was admissible to show that at the hearing before the referees, the plaintiff in the action abandoned his special count on the principal’s promise, and proceeded, without objection from the principal, to give evidence of the payment of his debt by the sureties.</p> <p>Although where two sureties jointly pay the debt of the principal, they should join in a suit for reimbursement, and although if one brings such suit alone, the other has an interest in the event thereof, yet if he is called as a witness by the plaintiff, and is not objected to by the defendant, he is bound to testify, and does not by testifying estop himself to claim of the plaintiff the benefit of the recovery from the principal.</p>

<p>In a suit prosecuted by an assignee of an insolvent debtor, under St, 1838, c. 163, for any debt, right, &c. due or belonging to such debtor, the assignment is conclusive evidence of the plaintiff’s authority to sue, although the prior proceedings may have been defective and erroneous.</p>

<p>This was a petition of a mercantile firm in Boston, creditors of Lemuel Davis of Springfield, alleged to be an insolvent debtor, praying the court to grant a rule upon the judge of probate for the county of Hampden, to show cause why a writ of mandamus should not issue against him, commanding him to arrest and imprison said Davis, as the St. of 1838, c. 163, § 23, requires him to do, when “ any insolvent shall disobey any lawful order or decree of the judge in relation to the settlement of his estate, pursuant to ” that statute.</p> <p>The petition alleged, that before the 13th of September 1839, the goods or estate of said Davis had been attached on mesne process in a civil suit founded upon a demand of $ 100 or upwards, which in its nature was proveable against the estate of an insolvent debtor, according to the provisions of the statute above-mentioned, which said attachment was not dissolved by said Davis on or before the last day of the term of the court to which the process in said suit was returnable : That on said 13th of September 1839, and within ninety days after the last day of the term of the court abovementioned, Robert Ashton of New 1 ork, a creditor of said Davis, having a demand against h m to the amount of $100, for which a suit might then be brought, and which was in its nature proveable against the estate of an insolvent debtor, applied, by petition to the respondent, judge of probate, &c. setting forth the facts aforesaid, and praying that a warrant might issue to take possession of the estate of said Davis, and that such further proceedings might be had, as are provided in the statute aforesaid : That upon said petition, the said judge, on the 17th of September 1839, issued his warrant, directed to L. Gorham, as messenger, authorizing and requiring him to take possession of the estate of Davis, agreeably to the provisions of said statute, and made returnable on the 14th of October 1839, when said Gorham made return thereof, whereby it appeared that he had executed the same, according to the precept thereof, and that he had given Davis notice of the issuing thereof, and also given him notice to appear at a meeting of his creditors, on said 14th of October, to show cause, if any he had, why assignees of his estate should not be chosen : That Davis did not appear on said day, before said judge, nor produce a schedule of his creditors : That said judge then proceeded to receive and examine the proof of the debts claimed by Davis’s creditors, who were present ; and that the creditors, who proved their debts, then duly chose J. B. Curtis and L. Gorham assignees of Davis’s estate, and they accepted the trust : That said judge appointed the 30th of November 1839 for the second meeting of the creditors, of which meeting due notice was given by the assignees ; and that said meeting was accordingly held on that day, but that Davis did not then appear : That said judge appointed the 4th of March 1840 for the third meeting of the creditors, of which the assignees gave due notice, and said meeting was then held : That previous to said third meeting, viz. on the 2d of March 1840, said judge issued a summons, which was duly served, commanding Davis to appear at said meeting, and to produce a schedule of the debts due to his respective creditors, and further to submit to an examination on oath, before said judge and said assignees, conformably to the provisions of law: That Davis did not appear at said meeting, as required by said summons ; and that J. B. Curtis, one of said creditors, and also one of said assignees, moved, at said third meeting, that said judge issue his warrant to a civil officer, commanding him to arrest and commit said Davis to the common jail in the county of Hampden, for not obeying said summons : That said judge then consented to take said motion into consideration, and adjourned said meeting till the 27th of April 1840, for that purpose, and at said adjourned meeting disallowed said motion, and refused to issue such warrant.</p> <p>This petition was presented at April term 1840, in Hampden, and an order of notice was' then directed to be served upon said Morris and Davis, to appear and show cause why a writ of man damns should not issue.</p> <p>The first argument was had at the last September term, on the petition as above set forth. The first opinion of the court was pronounced at the last May term in Hampden. The peti tion was subsequently amended, as hereinafter mentioned, and another argument had at the present term. The final opinion of the court was made known at May term 1842, in Hampden. In that opinion, the facts of the case, and the grounds of argument thereon, are fully exhibited.</p>

<p>Trespass for breaking and entering the plaintiff’s close m Goshen, on the 1st of January 1834, and afterwards on divers days before the 27th of December 1839, when the action was commenced. Dewey, J. before whom the trial was had, reported the case thus :</p> <p>The plaintiff introduced evidence tending to prove that his father, Ebenezer Putney, died seized of the locus in quo in 1810, and that on a partition of his real estate, afterwards made, a tract of land including the locus was duly assigned to the plaintiff, which he occupied for two or three years, including the year 1815.</p> <p>The defendant introduced evidence tending to prove that Moses Dresser and Aaron Dresser, in June 1818, entered upon the locus in quo, under a deed of Moses Putney conveying the same to them, and disseized the plaintiff, and themselves continued seized till the death of Aaron Dresser in 1827 ; and that the defendant is one of the heirs of said Aaron : that said Moses Dresser was also one of the heirs of said Aaron, and that lie contit.ued in possession of his undivided moiety of the land, after said Aaroti’s death.</p> <p>There was no evidence of any entry on the locus, or any claim thereto, by the plaintiff, after the year 1818, during the life of Aaron Dresser; but there was evidence tending to prove an entry by him in 1835 or 1836, and also in December 1839.</p> <p>The defendant contended, that as Aaron Dresser died seized of an undivided moiety of the land, and had been, at the time of his death, so seized for more than five years, the plaintiff’s right of entry upon a moiety had been tolled ; that a part of that moiety descended to the defendant, as one of the heirs of said Aaron ; and therefore that the plaintiff could not maintain this action.</p> <p>It was ruled, however, for the purposes of the trial, that the plaintiff’s right of action was not barred, if the jury should be satisfied that he made an entry sufficient to revest the possession in him, independently of the objection that the right of entry was lost by reason of the death of Aaron Dresser, and the descent of the estate to his heirs.</p> <p>The defendant further contended, that if the jury should be satisfied that the Dressers had remained in open possession and occupation of the land from the year 1818, to the date of the plaintiff’s writ, a formal entry by the plaintiff in 1835 or 1836, could be of no avail, unless he commenced his action within one year thereafter, or at least within one year after the expiration of twenty years from the commencement of the adverse possession of Aaron and Moses Dresser.</p> <p>But it was ruled, that as the plaintiff had the legal title to the land, (as was conceded,) his entry upon it, as his, and his exercising acts of ownership thereon, were sufficient to revest his possession ; that if he did thus enter in 1835 or 1836, the subsequent entry of the defendant was a trespass for which the plaintiff" was entitled to maintain his action ; and that if the jury should find that there was also an actual entry by the plaintiff in December 1839, accompanied by acts of ownership, then the plaintiff might recover for the various entries of the defendant upon the land and the acts thereon done by him, between the times of the two entries by the plaintiff.</p> <p>The jury returned a verdict for the plaintiff, which was to be set aside, and a new trial granted, if the above rulings were wrong ; otherwise, judgment to be rendered on the verdict.</p>

<p>Scire facias against bail. The case came into this court on exceptions alleged by the defendant to the decisions of Cummins, J. before whom the trial was had in the court of common pleas.</p>

<p>Scire facias against bail. One ground on which the defendants placed their defence was, that the action in which they became bail was trespass on the case, [for goods sold and deliv ered, services rendered, &c.] but that the bail bond, which they executed, was conditioned for the principal’s appearance to answer to the plaintiff “ in a plea of debt, as set forth in the writ.” Another ground of defence was, that the execution against the principal issued from the court of common pleas on the 25th of June 1839, and was made returnable in three months, but that a return of non est inventus was made upon it, on the 23d •>f September 1839, before the return day.</p>

<p>A building was erected by A. on land of two tenants in common, by their oral permission that it should remain on the land while it should be used as a blacksmith’s shop, and no longer : A. sold the building to B« who did not use it as such shop, but removed it a few feet and repaired it, by oral permission of the owners of the land, and under an agreement with them that he would, within one year, buy the land on which the building stood, or after that time remove it on their request: B. did not buy the land, nor was he requested to remove the building : After the year had expired, one of the cotenants of the land sold the building to C. and took back a mortgage thereof: C. afterwards leased the building to D. lor ten years from a certain future day, with an agreement, which he performed, to enlarge the building'and fit it for certain manufacturing purposes, before the day when the lessee was to take posses sion, and to furnish water, during the ten years, sufficient to drive the machinery in said building. Held, that the building was attached to the land, by the sale thereof to C.; that C. leased it as real estate ; that the land on which it stood passed by the Tease ; and that the lessee was entitled to redeem the mortgage thereof made by C. to his grantor, although that mortgage had been assigned, and C. had released his equity of redemption to the assignee.</p> <p>Where one cotenant of land conveys a parcel thereof by metes and bounds, and takes back a mortgage and assigns it, the assignee, if he has no claim to the land under the other cotenant, cannot resist the right of the mortgagor’s lessee for years to redeem that mortgage.</p>

<p>Trespass quare clausum fregit. The writ was dated December 18th 1839. The first count in the plaintiff’s declaration alleged that the defendant, on the first of January 1838, and on divers other days, &c. broke and entered the plaintiff’s close in Chester, trod down and destroyed the grass and herbage there growing, dug up and removed the soil, cut down, carried away and destroyed twenty trees there standing, and tore down and carried away the plaintiff’s fence. The third count alleged a trespass, like that set forth in the first, committed on the 21st of June 1839. The second count alleged a like breach and entry of the same close by the defendant, on the 21st of June 1839, and the making of ditches by the side of the highway running through said close, by which the plaintiff was hindered and presented from passing from said highway to his adjoining land. In the second and third counts, the words “ and on divers other days,” &c. were omitted.</p> <p>At the trial before Dewey, J. the defendant undertook to jus tify his entry, &c. as a surveyor of highways in the town of Chester, in the discharge of his duty in repairing a county road, under an order of the county commissioners of Hampden for the making of specific repairs thereof; and pursuant to the authority granted to surveyors by the Rev. Sts. c. 25.</p> <p>The plaintiff denied that the land, entered upon, &c. by the defendant, was within the limits of said county road ; and much evidence was introduced, on both sides, as to the precise boundaries of the road, under the record of the court of common pleas, by whose authority it was located in the year 1811. This question was submitted to the jury.</p> <p>The plaintiff insisted that if the locus in quo was within the limits of said road, he was nevertheless entitled to recover damages to some extent; because the defendant—without the approbation of the selectmen of Chester first being had in writing — had, within the limits of said highway, caused a watercourse, occasioned by the wash of the highway, to be so conveyed by the side thereof, as to incommode the plaintiff in the use of his barn adjacent thereto, and thus had obstructed him in the prosecution of his business.</p> <p>The plaintiff introduced sundry conveyances, to show that he was owner of the land, on which the watercourse was made, subject to the right of the public to pass over the same on said highway ; and the defendant thereupon conceded that the plaintiff was such owner. But the defendant denied that he had made a watercourse which was injurious to the plaintiff, and also insisted that if he had so done, yet that the plaintiff could not maintain this action.</p> <p>The judge ruled, for the purposes of the trial, that this action might be maintained, if the jury should find that the watercourse was injurious to the plaintiff.</p> <p>The plaintiff also claimed damages for another watercourse made by the defendant, at a place called “ The Bars,” whereby he was obstructed in the prosecution cf his business. The same objection was taken to this claim, as to the preceding, and the same disposition was made of it by the judge. A question was also made by the defendant, whether the plaintiff owned the land where “ The Bars ” stood. As this depended on the legal construction of certain deeds, the judge ruled, (subject to the opinion of the whole court,) that said land was conveyed to the plaintiff by those deeds. [When the case was argued, this last point was waived.]</p> <p>Another ground on which the plaintiff claimed damages was, that the defendant, by his agents and servants, had caused certain trees, that stood within the limits of said highway, to be cut down, and had caused them to fall upon the plaintiff’s land adjacent, and to remain there several days, to the injury of his grass, &c. The evidence was, that the trees, which were felled on the plaintiff’s land, were cut by John Ladd, who was employed by the plaintiff to work on the highway, in payment of the plaintiff’s highway tax ; but that Ladd, while so working, was under the superintendence and direction of the defendant, as surveyor of highways.</p> <p>.The defendant contended that the trees were felled on the plaintiff’s land without his (the defendant’s) knowledge, and against his directions, and that he was not answerable for the acts of Ladd. The judge instructed the jury, “that if the trees were cut by the defendant’s orders, by men in his service, although he might have directed his servants to place the trees, when cut, elsewhere than on the plaintiff’s land ; yet if the defendant was in view of the premises when the trees were felled, and knew where they were placed, and assented to it, and gave no directions to have them removed, the defendant might be considered a trespasser in relation to the placing of such trees, if the place where the trees were caused to fall was out of the limits of the highway, and upon the plaintiff’s land, and the trees were unnecessarily felled and left there, when they might conveniently have been-felled and placed in the highway.”</p> <p>After these instructions were given, the defendant’s counsel requested that the jury should be instructed as follows : If a man in the defendant’s employ was directed to fell the trees by the road-side, and he, for his own purposes, afterwards felled them into the plaintiff’s mowing, unless the deiendant knew it, at the time, and consented to it, or unless he subsequently rati Bed the act, the defendant is not to be responsible.</p> <p>The judge, deeming any further instruction unnecessary, re fused this request; and the jury found a verdict for the plaintiff on all the foregoing points, and assessed separate damages for the injury caused by each of the watercourses, and for the injury done by causing the trees to fall, &c. upon the plaintiff’s land.</p> <p>This verdict to be set aside, and a new trial to be granted, if the above instructions were erroneous, or if any further instructions ought to have been given. And if the said instructions were correct, yet if trespass will not lie for the injury, caused to the plaintiff by the making of the watercourses aforesaid, the damages assessed for those injuries are to be deducted from the verdict.</p>

From .the answer of the Chicopee Manufacturing Company, who were summoned as trustees of Jewett, the principal defendant, it appeared that he, on the 2d of March 1839, signed and sealed the following instrument : “ Know all men, &c. that I, Joseph F. Jewett, of Springfield, &c. do hereby constitute and appoint David M. Bryant, of said Springfield, my sufficient and lawful attorney, for me and in my name to ask for, receive, demand and receipt for, all sums of money that may…

This was an action on the case in the nature of waste. At the trial before Dewey, J. it appeared that dower was assigned to the defendant in the estate of Richard Dickinson, her deceased husband, and that she conveyed the estate, which she held as tenant in dower, to John Mills, who demised the same to one Byington, who committed the waste : That the deed of the defendant, conveying her said estate to Mills, was not recorded until after this action was commenced ; but that…

<p>Assumpsit for thirteen months and twenty-one days’ laboi, at $ 40 per month. The only question between the parties was, whether the plaintiff was entitled to more than $ 30 per month ; that rate of wages having been paid to him before action brought.</p> <p>At the trial before Dewey, J. it appeared that Eleazer M. Townsend made a contract with the Western Railroad Corporation to do certain work on the 23d section of their road, and employed the plaintiff, at the stipulated wages of $ 30 per month, as superintendent of the laborers, &c. employed on said work ; that the plaintiff continued in the said employment until July 1837, when Townsend assigned his said contract to Hackley, the defendant ; that the plaintiff afterwards performed the same services for the defendant, which he had before performed for Townsend ; but that no new express bargain was made by the plaintiff and defendant, nor any notice given by the plaintiff to the defendant that he should not continue to labor for the same wages which he had received under his contract with Townsend.</p> <p>The plaintiff introduced evidence tending to prove .hat his services to the defendant were worth the sum demanded.</p> <p>The defendant requested the judge to instruct the jury, “ that as matter of law, they were bound to infer a contract on the part of the plaintiff to work for the defendant at the same rate of wages originally stipulated for with the said Townsend, and for which the plaintiff continued to labor, until said Townsend transferred his interest in said contract to the defendant.”</p> <p>The judge declined so to instruct the jury, but instructed them, that it was competent for them to infer, and that the evidence furnished strong grounds for the inference, that the proper compensation for the services of the plaintiff, while in the em ploy of the defendant, was to be at the rate of $ 30 per month, and that it was so understood by both parties ; but that it was for the jury to decide whether this was to be inferred, and if they drew such inference, they would fix the price at that rate per month. The jury Lund a verdict for the plaintiff for $102’35, being at a rate of wages exceeding $30 per month.</p> <p>New trial to be granted, if the defendant was entitled to other and different instructions in matter of law.</p>

<p>A. conveyed a mill to B. «nd covenanted with him, his heirs and assigns, to keep one* half of the mill-dam in repair. The dam was afterwards carried away by a flood, and B., after having duly requested A. to aid him in rebuilding it, conveyed the mill, ‘with the privileges, &c. to C. who at the same time agreed in writing that B. should t( have all that should b obtained of A. for non-fulfilment of his contract, provided A. should not assist B. in erecting the dam, and B. should be compelled to rebuild it without A’s assistance.” A. afterwards refused to assist in repairing the dam, and B. repaired it at his own expense. Held, that B. might maintain an action in his own name against A. for breach of the covenant to keep the dam in repair. Held also, that B. could not recover damages for loss of the profits of the mill, by reason of the delay caused by A’s refusal to aid in repairing the dam 5 but that he could recover only one half of the expense which he had incurred in repairing it.</p>

<p>Writ of entry to recover a tract of land in Monson. The case was submitted to the court on the following statement of facts •</p> <p>Rufus Flynt, the demandant’s intestate, was owner- of the demanded premises on the 4th of January 1835, and on that day conveyed the same, by deed of warranty, to Harry Norris, who at the same time executed a mortgage thereof to said Rufus, to secure the purchase money. The said deed and mortgage were deposited in the hands of one Bridgman, but were not registered. Said Norris went into possession of said premises, and has occupied them ever since. On the 11th of April 1837, he conveyed the same by deed of warranty, acknowledged and registered on the same day, to Luman and Thomas Norris, who had knowledge of the mortgage to Flynt at the time when it was executed, and were sureties of said Harry on his notes given to Flynt for the purchase money. At the time of this conveyance by Harry Norris, Flynt was dead, and the purpose of the conveyance (which was without consideration) was, to compel Bridgman to register the mortgage to Flynt, and give up the deed from Flynt to H. Norris, that it might also be registered.</p> <p>On the 1st of May 1837, said mortgage was registered, and said deed to Flynt was given up, and was registered on the 6th of the same May. On the 1st of July 1837, Luman and Thomas Norris executed a mortgage of the demanded premises to John Hanna, for a valuable consideration, and this mortgage was registered, and was afterwards assigned to the tenants. Neither Hanna nor the tenants had any notice of the mortgage to Flynt, besides that which is implied by the registry.</p> <p>Judgment to be rendered for the demandant, or for the tenants, according to the law on the forégoing facts.</p> <p>This case was argued at the last September term.</p>