Volume 44 — Massachusetts Reports

This was an action of assumpsit, brought by the treasurer of the State Lunatic Hospital, to recover $ 277 -25 for the support of William W. Allen, confined in the hospital as a lunatic, from June 1st, 1837, to May 31st, 1839, inclusive.

<p>A creditor who receives in pledge from his debtor the goods of another, supposing them to belong to the debtor, and afterwards permits the debtor to sell and deliver them on the promise of the purchaser to pay the creditor the price thereof towards the discharge of the debt for which they were pledged, does not thereby render himself liable to the true owner of the goods in an action of trover.</p>

<p>The plaintiffs contracted for a sale of goods to a printing company, in these ,erms : “ Dec. 4, 1839. Sold to R. S., agent of the printing company, 3 to 5000 pieces of printing cloths,” [stating the price per yard] "on six months, for H. and B.’a acceptance, $2,000, by 25th inst., and balance in 60 days ; the goods to be consigned in name of S. and M.,” [agents of the plaintiffs,] “ and insured by R. S. for account of said S. and M., and payable to them in case of loss ; and when paid for by said acceptance, a bill is to be given said R. 3., agent for the purchase.” The cloths were sent to the printing company, with an invoice, which stated the substance of the above agreement, and said company caused them to be printed, and about the 18th of January 1840, consigned a part of them to the defendants, who were commission merchants, to be sold ; and the defendants, having no knowledge of the contract above set forth, made advances to said consignors upon the goods so consigned. H. and B.’s acceptance was never procured by the printing company, nor did the plaintiffs demand said acceptance, or reclaim the goods, until after said consignment to the defendants. On the 28th of March 1840, the plaintiffs demanded the goods of the defendants, and the defendants refused to deliver them. Held, that the contract of the plaintiffs and the printing company was a conditional, and not an absolute sale ; that the plaintiffs had not waived the conditions of sale; that the property in the goods remained in them; and that the defendants were liable to them in an action of trover. Held also, that the plaintiffs could recover, in damages only the value of the goods at the time they were delivered, and not their value after they were printed.</p>

The defendant and Dickinson Shearer were jointly indicted for kidnapping a colored boy of the age of eight years.

Writ of entry to recover a parcel of land in Warren. Trial before Wilde, J. The demandants, to prove their title and seizin, introduced a judgment recovered by them against Harrison Bishop and one Ferry, and a levy, on the 29th of June 1840, of the execution which issued on that judgment, upon the demanded premises as the estate of said Harrison, and a delivery of seizin by the officer who served said execution.

Assumpsit to recover back money alleged to have been paid by the plaintiff to the defendant, upon a consideration which had in part failed.

<p>A testator, having devised certain land, and bequeathed certain chattels to a minor, whom lie also made one of his residuary legatees, afterwards sold and conveyed said land and chattels to a third person, and took his promissory notes in payment: After his decease, his executor delivered those notes to said minor’s guardian, who gave his receipt therefor “ in full of the legacy bequeathed” to said minor, and collected the money due thereon. The executor was afterwards removed from his trust, and an administrator de bonis non, with the will annexed, was appointed. Held, that the guardian was not chargeable in the process of foreign attachment, as trustee of the executor; that the administrator was entitled to recover back the money from the guardian, with interest from the time when it was received ; and that the guardian could not ictain, by way of set-off, any sum due to his ward, as residuary legatee, on account of money received by the executor.</p>

Writ of Dower, wherein the demandant claimed her dower in lan.d in Webster, in the seizin and possession of the' tenant, and counted upon the seizin of her late husband, William Robinson.

This was an action against a deputy sheriff, for an alleged misapplication of money collected by him on execution, and was submitted to the court on the following statement of facts : The Athol Manufacturing Company was incorporated by St. 1814, c. 8.

<p>Where two judgment creditors levied executions on the same land simultaneously, one of them upon the whole by metes and bounds, and the other upon fourteen fifteenths of one undivided half of it ; it was held, that the latter was entitled to hold, as tenant in common with the former, the whole (and not a moiety only) of those fourteen fifteenth parts of an undivided half.</p> <p>Where an officer makes two returns on an execution against a manufacturing corporation, setting forth, in one, a levy on land as the estate of the corporation, and it the other, a levy on the same land as the estate of a stockholder in the corporation, pursuant to St, 1808, c, 65 ; it seems that the creditor will hold the estate, as against another creditor of the corporation who levies execution on the same land as the estate of such stockholder only.</p>

<p>This was a bill m equity to redeem certain mortgaged real estate in Bolton. The plaintiff claimed the right to redeem, on the ground that he was second mortgagee, and the defendant first mortgagee in possession. The facts upon which the case was decided appear in the opinion of the court.</p>

<p>Though a writ, sued out by a plaintiff who is not an inhabitant of the State, is not indorsed as is required by Rev. Sts. c. 90, § 10, yet the defendant must make the objection at the first term, or he will be held to have waived it.</p>

<p>Trespass for injury done to the plaintiff’s sheep by the defendant’s dog. The declaration averred that the value of the sheep was $ 30.</p> <p>At the trial in the court of common pleas, before Strong, J it appeared that the injury sued for was done by the defendant’s dog and two other dogs that belonged to different owners : That the plaintiff had brought several actions of trespass against the other owners, and in both cases had averred the value of the sheep, which were injured, was $ 30 ; and that he had recovered judgment against one of those owners for $ 14 damages, and against the other for $ 9.</p> <p>The judge permitted the plaintiff to amend his declaration, by averring the value of the sheep to be $ 50 instead of $ 30 The defendant alleged exceptions.</p>

<p>The qualified liability of a member of a manufacturing corporation, for the debts of the corporation, under St. 1808, c. 65, § 6, is not a debt that can be proved against the estate of an insolvent debtor, under St. 1838, c. 163.</p>

<p>In a suit against a person who is alleged to have conveyed all his property for the pulpóse of defeating his creditors, the grantee is a competent witness for the defendant, if it be not shown that he participated in such fraudulent purpose, or was cognizant thereof, nor that the property, or the money received on the sale thereof, is sti in his hands.</p>

<p>An insurance of a building against fire is a contract of indemnity with the owner or other person who, at the time when insurance is made, lias an interest in its preservation; and ¡f such owner, &c. part with all his interest in the building before it is destroyed or injured by fire, the right to the benefit of the insurance does not oagr with the building to the purchaser.</p> <p>The owners of a factory, which they had twice mortgaged, procured insurance theieo and of the machinery therein, to the amount of $ 2700 payable, in case of loss, to A. who liad a mortgage on the machinery : They subsequently conveyed the factory to B. subject to the two mortgages thereon, and B. procured an assignment of one of those moitgages : The factory was afterwards burnt, and the insurers paid a total loss to A. whose mortgage on the machinery was only 0 2051 : The owners then became insolvent, and an assignee of their estate was appointed under St. 1838, c. 163, who brought an action against A. to recover the balance ($ 649) in his hands, and recovered judgment against him by default ; whereupon lie paid to the assignee $ 626 and costs; B. afterwards procured an assignment of the other mortgage on the factory, and brought an action against the assignee to recover of him the money which was paid to him by A. Held, that the action could not be maintained</p>

<p>A negro boy eight years old, who was born and reared a slave in Arkansas, came into this State with the consent of his master, as a personal attendant of his master’s wife, who was here on a visit to her friends : On his being brought before the court by habeas corpus, it appeared that the master’s wife did not claim the custody of the boy as a slave here, nor intend to cony him back to Arkansas against his will, out did intend to carry him back, if he should consent to go. The court held that the consent of so young a child would not authorize his removal into a state of slavery, and ordered him to be delivered to the guardians who had been appointed for him, by the judge of probate, under the Rev. Sts. c. 79, § 1.</p>

<p>An administrator who is cited, on the application of the heirs of the intestate, to reader and settle his account of administration in the probate court, will be held so to do, although he produces the receipts of all the heirs acknowledging that he has paid them their distributive shares in full.</p>

<p>This was an action of debt for three years’ rent of a watei privilege and a manufactory in Mention. The defendants brought money into court, under the common rule, in payment of the rent for the last two years, and the parties went to trial before Wilde. J. upon the question whether the plaintiff was entitled to recover the first year’s rent. A verdict was returned for the plaintiff, to be set aside, and a new trial to be granted, if in the opinion of the whole court the plaintiff cannot recover said rent.</p> <p>The facts of the case appear in the opinion of the court.</p>

<p>This was an action for the alleged breach of a covenant of warranty in a deed of land made by the defendant to John Adams, junior. The land, when conveyed to Adams, was under mortgage, and his right therein (being an equity of redemption) was sold on execution and conveyed, by the officer’s deed, to the plaintiff. The plaintiff therefore claimed as assignee of Adams.</p> <p>The parties submitted the case to the decision of the court upon a statement of facts, under an agreement, that if the plaintiff was by law entitled to judgment, his damages should be assessed by an auditor on such rule as the court should prescribe</p> <p>The facts of the case, and the grounds taken by counsel in argument, appear in the opinion of the chief justice.</p>

<p>Writ of entry to recover eleven twenty-eighths of one acre and forty-nine rods of land in Lowell. The demandant counted on his own seizin within 20 years, and a disseizin by the tenants</p> <p>It appeared at the trial before the chief justice, that between the years 1760 and 1770, a lot of land of about eight acres, which included the demanded premises, was assigned to Mary Hall as her dower in the estate of Zebediah Keyes, her former husband, and that she died in possession of the same,'in 1812. On her death, said land reverted to the heirs of said Keyes, and those claiming under them. Joseph Moors (who claimed under one of said heirs) and several others thereupon joined in a petition for partition of said land ; and in pursuance of a judgment thereon, a parcel, of which the demanded premises are an undivided part, was set off to said Moors, by commissioners, on the 3d of November 1812, and their proceedings were duly confirmed by the circuit court of common pleas, at March term 1813. Said Moors was non compos mentis, and was then, and until his death in August 1814, under the guardianship of Moses Hale ; and his heirs were his brothers, Herbert, Micajah and Larkin Moors, and his nephews, Simeon and Jesse, sons of his deceased brother, Miel Moors, and their sisters, Lucretia, wife of Jason Sanders, Joanna, wife of Jeduthun Warren, and Esther, wife of Joshua Marshall. The said Joshua died in August 1827, leaving issue bom before the decease of said Joseph Moors. The said Lucretia died in 1834, never having had issue.</p> <p>The demandant claimed four twenty-eighths of the demanded premises under a deed to him from Jason Sanders and wife, dated October Gth 1831 ; four twenty-eighths under a deed from Larkin Moors ; and three twenty-eighths under a deed from Esther Marshall. The two last mentioned deeds were dated Octo her 20th 1831, and the three deeds were recorded on that day. Each of these deeds purported to convey, in form of release and quitclaim,, all the said grantors’ interest in their respective shares of the demanded premises ; and there were covenants of warranty against the lawful claims of all persons claiming by or under the grantors, respectively.</p> <p>.The tenants claimed under the following deeds : 1. A deed from said Moses Hale to Nathan Tyler, dated October 12th 1815, and recorded December 23d 1817, warranting against the lawful claims and demands of all persons, and describing the demanded premises, and other lands, amounting to three acres and eighty-five rods : In this deed the grantor did not covenant for his heirs or legal representatives. 2. A deed from Nathan Tyler to Thomas M. Clark, in common form of warranty, for himself and his heirs, &c. dated November 2d 1821, recorded on the 23d of said November : 3. A deed from said Clark to Kirk Boott and other?, dated December 13th 1821, recorded on the 18th of said December : 4. A deed from said Boott and others, dated May 18th 1822, recorded on the 2d of August following, to the Merrimack Manufacturing Company : 5. A deed from said company to Joseph Fletcher, dated November 23d 1822, recorded February 11th 1823 : 6. A deed from said Fletcher to said company, dated October 8th 1824, recorded the 20th of the same month: 7. A deed from said company to the tenants, dated January 2d 1826, recorded on the 8th of June following. The five last mentioned deeds were quitclaim, with warranty against all persons claiming through or under the grantors respectively.</p> <p>It appeared by the testimony of Perley Hale, that his father the said Moses Hale, pastured his cows on the Keyes pasture lot, including the demanded premises, one or two seasons, from the year 1813 to 1815 ; that the said lot was inclosed with other lands owned and occupied by his father, lying upon each side of it, making what was called the Keyes pasture lot, and bounded on the southwest by land of Nathan Tyler, and on the northeast by land of Josiah Fletcher. He believed there was a fence separating the said pasture from the said Tyler lot, but could not swear positively. His father, at the time he sold to said Tyler that part of said pasture which lay next to said Tyler, conveyed the other part to said Josiah Fletcher.</p> <p>Susanna Hale, widow of said Moses, in a deposition offered by the demandant, testified that the Keyes pasture lot was the widow’s thirds ; that her husband was in the occupation of it two or three years before 1816, as a pasture ; and in answer to the demandant’s interrogatory, whether the Keyes pasture was a common pasture when her husband occupied it, she said “ there was no division fence.”</p> <p>Ignatius Tyler testified, that he was the son of Nathan Tyler, and knew the lot called the Keyes lot; his father owned and occupied it as a pasture a number of years before he sold it, cut off the bushes, and made a division wall between Fletcher’s and this lot. He bought it of Moses Hale, and went into immedi ate occupation, and occupied till he sold it to Thomas M. Clark One year he plowed it, and sowed with rye all that was fit for cultivation.</p> <p>Moses Shattuck testified, that he had superintended the outdoor work of the tenants since the year 1822, and knew the Keyes lot: John Short occupied it as a pasture in 1838 and 1839, under a demise to him by the witness as agent of the tenants.</p> <p>Robert Taylor testified, that he lived in Lowell eight or nine years before 1833, and hired the Keyes lot of the tenants three years, 1826, 7 and 8, or 1827, 8 and 9. He occupied it as a pasture and paid rent. Foster Newhall occupied the next two years. Then Cyrus Johnson occupied it as a pasture, the two following years. Newhall plowed a part of it, and pastured the rest. He professed to occupy under the tenants. He told the witness, during the time of his occupation, that he occupied under the tenants.</p> <p>The demandant put into the case a quitclaim deed, with covenants of warranty against all persons claiming under the grantors, dated September 26th 1815, made by the aforesaid Herbert, Micajah, Larkin and Simeon Moors, and Joshua Marshall, Jedutliun Warren and Jason Sanders, to said Moses Hale, acknowledged by said Simeon, February 2d 1832, and by said Larkin, Febru ary 3d 1832, and recorded on the 22d of the same February.</p> <p>Evidence was offered by the tenants to show, that Larkin Moors was an insane person, and incompetent to transact business at the time of his making said deed to the demandant. It appeared by the same evidence, that he was in the same condition at the time of his making his said deed to Moses Hale. This evidence was ruled by the chief justice to be immaterial.</p> <p>The demandant offered in evidence a deed of quitclaim and release from said Esther Marshall to the tenants, dated February 3d 1832, and recorded the 22d day of the same month, conveying her interest in the demanded premises, for the purpose of showing that the possession of the tenants, so far as proved in the case, was not adverse to said Esther ; which was rejected as not being any evidence of possession.</p> <p>it was conceded, that the land described in the demandant’s writ and deed, was a part of the widow Keyes’ thirds ; that she afterwards married one Hagget, and then Hall, and died about 1812 : That she was the widow of Zebediah Keyes, and took the thirds as his widow, being part of the estate of which the said Zebediah Keyes died seized ; and that Daniel Keyes conveyed the estate, including the reversion in the widow’s thirds, to Joseph Moors, father of Simeon, grandfather of Jo seph, the non compos.</p> <p>The tenants contended that nothing passed by the deeds of Larkin Moors, of Jason Sanders, and Lucretia his wife, and of Esther Marshall, to the demandant, in October 1831, because the said grantors were then disseized, having been dis-seized by Moses Hale in 1815 ; the said Hale’and those claiming under him having had the exclusive occupation and possession of the premises till the present time. But it was insisted by the demandant, that such occupation did not constitute a disseizin, because the said Hale, by the aforesaid deed of September 26th 1815, took the estate of some of the heirs of Joseph Moors, who held as tenants in common, and thence held as tenant in common with those under whom the demandant claims, and so his possession, and the occupation of those claiming under him, did not constitute a disseizin. He also contended, that by the same deed the estate of Larkin Moors did not pass to the said Hale, as against the demandant, because the said deed was not acknowledged and recorded until after the deed of the same Larkin Moors to the demandant; and so the demandant took as a purchaser, without notice of such prior conveyance : Also, that the estate of Esther Marshall and Lucretia Sanders did not pass to said Hale by the same deed, for the reason already stated in respect to Larkin Moors, and also, because the deeds were executed by Joshua Marshall and Jason Sanders, respectively, without their said wives, and so the estate in fee, vested m the wives, and did not pass.</p> <p>By consent, the action was taken from the jury and continued, subject to the opinion of the whole court, upon the question, whether the demandant is entitled to recover. Judgment to be entered on nonsuit oí delault according to that opinion.</p> <p>The argument was had at October term 1840.</p>

<p>If after the execution and delivery of an unattested bond, the obligee, without &td knowledge and assent of the obligor, fraudulently and with a view to some improper advantage, procures a person, who was not present at the execution of the bond, to sign his name thereto as an attesting witness, the bond is thereby avoided and the obligoi discharged.</p> <p>The act of an obligee in procuring a person who was not present at the execution of the bond, nor duly authorized to attest its execution, to sign his name thereto as an attesting witness, is primd facie, sufficient to authorize the jury to infer a fraudulent intent. But it is competent for the obligee to rebut such inference ; and if the act be shown to have been done without any fraudulent purpose, the bond will not be avoided by such alteration.</p>

<p>ff an administrator of an estate represented to be insolvent neglects to render and settle his account in the probate court, within the time prescribed by the Rev. Sts. c. 68, § 25, he and his sureties are liable to nominal damages at least, in a suit on his administration hand¡ although he was not cited by the judge of probate to render an account</p> <p>The assets, received by a foreign executor or administrator in the State where the testator resided, are to be administered in that State ; and though such executor takes administration here on the testator’s estate within this Commonwealth, yet he is not -held, by' reason of such assets, to pay debts due to his testator’s creditors here, although he has paid all the debts which the testator owed elsewhere, and has a suffi cient balance in his hands to pay the debts due here.</p> <p>Where a foreign executor or administrator takes administration here on the testator’s estate within this Commonwealth, which consists of intestate real estate only, and he applies for license to sell it for payment of debts due to the testator’s creditors here, and the court refuses to grant the license, such creditors have no claim on the administrator here for payment, but must resort therefor to the place of principal administration.</p>

In replevin, the plaintiff declared of the taking and detaining of thirty tons of his hay. The defendant, a deputy sheriff, justified under a writ of attachment against Eli Robbins, as whose property he attached the hay, at the suit of Ward & Glover.

<p>A release by an heir apparent of his estate in expectancy, with a covenant, that neither he, nor those claiming under him, will ever claim any right in the same, is, if made fairly and with the consent of the ancestor, a bar to the releasor’s claim thereto, by descent or devise, after his ancestor’s death. Such covenant runs with the land, and protects the heirs and assigns of the covenantee.</p> <p>A release of "all the right, title or interest,” which the releasor “ has, or may have, in or unto the estate of his father, whether the same may fall to him by will or heirship,” includes future rights to be acquired by the releasor ; and a covenant never to make claim to “ the premises,” is a covenant never to make claim to the estate of the father.</p>

Writ of right. The demandants counted on the seizin of their ancestor, Ephraim Coburn, within 40 years. Plea, the general issue, with prayer for inquiry of seizin. The chief justice, before whom the case was tried, made the following report thereof: The demandants claimed under an original laying out of a tract of land, which included the demanded premises, by the town of Chelmsford to Joseph Parker, as appears by the record of said town, dated January 21st 1722 — 3.

<p>The indictment against the defendant alleged that he, “on the first -day of August 1840, at Lowell, in the county of Middlesex, not being then and there licensed as an innholder, victualler or retailer of spiritous liquor, for hire, gain and reward, unlawfully did permit certain persons, whose names to the jurors are unknown, to resort to a certain building there situate, and by said Goding then and there actually used and occupied, for the purpose of playing at bowls and nine-pins ; the same being then and there an unlawful game ; against the peace of the Commonwealth, and contrary to the form of the. statute in such case made and provided.”</p> <p>At the trial before Warren, J. in the court of common pleas, the defendant admitted that the allegations in the indictment were true, but insisted that the facts thus alleged did not constitute an offence for which he was liable to indictment. The judge ruled otherwise, and the jury found the defendant guilty The defendant excepted to the ruling.</p>

Assumpsit on a promissory note for five dollars, dated October 20th 1824, payable to the plaintiffs, with interest annually The action was commenced before a justice of the peace, and was carried by appeal into the court of common pleas.

Trover for household furniture, &c. It wa« agreed by the parties, at the trial .in the court oi common pleas, that prior to December 1838, the articles in question were the property of Benjamin Dole, the plaintiff’s son, who resided at Williamsburg, in the county of Hampshire.

This was an action of replevin, in which the plaintiff declared of the taking and detaining of household furniture, horses, cattle, wagons, &c. The defendant, a deputy sheriff, justified under a writ of attachment and an execution, on which he attached and seized said articles as the property of Eli Robbins at the suit of Ward & Glover.

<p>Where the right of redeeming real estate, which is under mortgage, is sold on execution, pursuant to the Rev. Sts. c. 73, § 38, the purchaser, who receives a deed thereof from the officer, cannot contest the validity of the mortgage, and, by proving it to be fraudulent, hold the estate as an absolute fee.</p>

<p>The provision in the “ act to amend the revised statutes,” that when any person, committed to jail for non-payment of taxes, shall be discharged by taking the poor debtors’ oath, “ the collector shall be liable to pay the tax, with the charges of imprisonment, unless he shall have committed the party within one year after the tax was committed to him to collect,” does not render the collector liable to pay for the support of the person so committed, while in jail.</p>

<p>A note given by a candidate for an elective office in payment of services in promoting his election, but which were not rendered at his request, is void for want of consid eration.</p>

<p>Where different lots are sold severally at auction, the sale of each is a distinct contract,, and the auctioneer’s commission accrues upon each complete sale, unless he has contracted with the owner for an entire sum as compensation for his whole service.</p> <p>Hence, where an auctioneer sold, severally, numerous lots of standing wood, at the request of the owner, and part of the wood was within the limits of a county where the auctioneer had no authority, and was by law prohibited to sell ; it was held that he was entitled to recover of the owner compensation for selling those lots which were within the county where he was licensed and qualified to sell at auction.</p> <p>An auctioneer sold, at the request of the owner, different lots of standing wood, part of which were not within the county where he had authority to sell at auction, and the purchasers took the wood and paid the owner therefor: The auctioneer afterwards paid to the Commonwealth the auction duty on the whole of those sales. Held, that he was entitled to recover of the owner the amount of that duty, in an • action for money paid.</p>

<p>A town has authority to appropriate money for the construction of reservoirs for water to supply fire engines.</p>

<p>Where the mental incapacity of the payee of a note, at the time he indorsed it, is relied on as a defence to an action by the indorsee against the maker, evidence is admissible to prove his incapacity when the note was given to him.</p> <p>In a suit by the holder of a note indorsed in blank by the payee, the legal presumption is, that the plaintiff purchased it immediately of the payee.</p>

<p>A person under guardianship as a spendthrift gained a settlement under St. 1821, c. 94, § 2, by living three years successively on an estate of inheritance or freehold purchased with his money and conveyed by deed to him, though it was purchased by his guardian without the sanction of the supreme court of probate.</p>

This was an action of debt on a bond for the liberty of the prison limits, and was submitted to the court on the following facts : Timothy Bascom, At the December term, 1840, of the court of common pleas, the plaintiffs recovered judgment against said Timothy, in an action for money paid, the amount which they had paid, as aforesaid, by reason of his default.

Debt on a bond for the liberty of the prison limits. The parties submitted the case to the court on the following facts : The principal obligor, D. Hill, was committed to the jail in Lowell, on an execution which issued on a judgment recovered against him by the plaintiffs for the sum of $427-44 damage, and $22-28 costs. The costs of commitment were $9-63.

<p>A title by disseizin is a good and sufficient title for the demandant in a writ of right, 11 the tenant cannot show a better title.</p> <p>Darrein seizin is a good plea and defence to a writ of right.</p> <p>Where a father was insane, and one of his sons, who had left his house, returned and took charge of his farm, with the acquiescence of the mother and the rest of the family, for several years, and until the father’s death ; it was held, that the father continued seized while he lived, and that the taking of the profits of the farm by the son must be considered as for the use and benefit of the father.</p> <p>Where a son, who had taken charge of his father’s farm for several years next preceding the father’s death, without disseizing him, continued in possession thereof thirty years afterwards, and then devised the same to his wife and died ; it was held that the other heirs of the father were entitled to maintain a writ of right against the devisee to recover their portions of the estate ; and that there was no legal presumption, from these facts, that the other heirs had made any grant of their right to the devisor.</p>

<p>By the Rev, Sts, c. 64, § 14, when a sole executor or administrator dies before he has fully administered the estate, the next of kin of the deceased have no right to claim administration de bonis non> but the judge of probate may grant such administration to any suitable person.</p> <p>A testator, in 1807, devised to his wife the improvement of his real estate, and the income of one third of his personal property, during her widowhood, and no longer ; and gave her, in case of her marrying again, one sixth of his personal property absolutely. He bequeathed two thirds of his personal property to his children, and made no further disposition of his real or personal estate : Held, that under St, 105, c, 90, the reversion in the real estate descended, immediately upon the testator’s death, to his surviving children, and that one third of the personal property vested in them, at the same time, subject to the bequest to the widow.</p>

<p>In the trial of an action of slander, in the court of common pleas, before Strong, J. the plaintiff introduced evidence tending to prove that the defendant uttered the words set forth in the writ and declaration. “ It also appeared that the words were spoken to the plaintiff, in the presence of others, while the plaintiff was under examination as a witness, in a trial before a justice of the peace, on a complaint in behalf of the Commonwealth, where the defendant was the complainant and was examining the plaintiff, and managing the case in behalf of the Commonwealth.</p> <p>“ The defendant requested the court to instruct the jury as follows : ‘ That if the jury believe that the words were spoken to a witness in a case on trial before a, justice of the peace, in the course of the conduct of the case, while the witness was under examination, the defendant being complainant, and manager of the case in behalf of the Commonwealth, and that the words were spoken bona fide, without actual malice or intent to defame the witness, with a view to elicit the truth from the witness, or give the justice a comment upon the testimony, to influence him thereby in the decision of the case — the defence is maintained.’</p> <p>“ The court refused to give such instructions to the jury, and the jury found a verdict for the plaintiff. To this opinion and decision of the court, the defendant excepted.”</p>

<p>Assumpsit, by the collector of taxes for the town of Groton, to recover the amount of a tax assessed upon the defendant for the year 1839.</p> <p>At the trial before Williams, C. J. in the court of common pleas, the only disputed point was, whether the defendant was an inhabitant of Groton on the 1st of May 1839. It appeared that prior to February 1839, he had been, for many years, an inhabitant of that town, and owned a farm there ; that, in February or March of that year, he sold his said farm, and the purchaser received possession thereof on the 1st of April following, according to the agreement at the time of sale In March, the defendant sold at auction the principal part of his personal property, and in April went, with his wife and children, to reside in the house of S. Shattuck, in said Groton, where they continued to reside, boarding themselves, until the 27th of said April. On that day, the defendant, and his wife and children, went to Tyngsborough, to the house of his brother, Z. Bennett, where they remained several days beyond the 1st of May. After this period, the defendant, and his wife and children were in Groton a large .part of the time until the 27th of May, when they left said Z. Bennett’s, at Tyngsborougb, and went to the State of Illinois, where they have resided ever since.</p> <p>For the purpose of showing with what intent the defendant went to Tyngsborougb, on the 27th of April, he offered to prove, that about three weeks before that day, he told S. Shat-tuck, in whose house he then resided, that he should leave Groton before the 1st of May, and remove with his family to Tygnsborough, to reside at his brother’s and make his house a home, until he should go to Illinois. But the judge ruled that the evidence was inadmissible, and rejected it.</p> <p>The judge also instructed the jury, that as it was admitted that the defendant had been an inhabitant of Groton for a long time before, and so continued until, the 27th of April, the presumption was, in the absence of any evidence to the contrary, that he continued to be an inhabitant of the same town ; and that the burden of proof was on him to show that he ceased to be such inhabitant before the 1st of May.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions to the aforesaid ruling and instructions of 'he court.</p>

<p>Where the legislature authorized the building of a bridge over a navigable strearas ** either solid or on piles, leaving sufficient passages for the water,” as certain commissioners might deem necessary, and a bridge was built, by direction of those commissioners, two thirds of the length of which was solid, and the other third, over the channel and deeper parts of the stream, was on piles ; and scows, gondolas, and boats and vessels without masts^or with moveable masts, empty or loaded, could and did advantageously pass and repass under said bridge ; it was held, that the stream had not ceased to be navigable, and that the county commissioners had no authority to lay out a highway over it.</p>

This was a writ of entry to recover a tract of land in Malden, and was submitted to the court on the following facts agreed : The demanded premises were formerly owned by Andrew Wait, who made a mortgage thereof to secure payment of t note.

This was a complaint charging the respondent as the father of a bastard child born of the complainant. On the trial in the court of common pleas, it was in evidence that the child was born in the county of Suffolk. The respondent tibjected tr.at the complaint should have been made and prosecuted in that county. The objection was overruled, and a verdict found for the complainant; whereupon the respondent alleged exceptions.

<p>Where something besides interest, as such, is allowed on a loan and forbearance of money, it is a question of fact for the jury, whether the contract is fairly and honestly made, or whether it is a cloak for usury.</p> <p>Where the testimony was, that the holder of a note, which the maker could not pay at maturity, proposed to borrow the money for ninety days, if the maker would engage to pay at that time, but told the maker that the loan would cost a certain sum, and that the maker ought to pay that sum, or a part of it, and the maker assented to the proposition and afterwards paid the holder $ 7, part of the sum which the holder had paid, as he alleged, in order to procure the loan ; it was held, in a suit on the note, that the jury were rightly instructed that if the representation made by the holder to the maker, by which he obtained the $ 7, was truly and fairly made, and if the holder in fact paid that sum or more, in order to procure the loan, then the taking of that sum from the maker was not usurious.</p>

<p>This was an appeal from a decree of a master in chancery, refusing the appellant a discharge under the insolvent law— St. 1838, c. 163.</p> <p>On a hearing before Putnam, J. it appeared that the appellant applied for the benefit of said statute, on the 6th of April 1841 ; that a warrant issued to a messenger on the same day, which was executed on the next day ; that the first publication, required by said statute, was on the 16th, and the first meeting of creditors on the 24th of said April ; the second meeting of creditors, at which the appellant applied for his discharge, was on the 29th of May following : That on the 3d of April 1841, the appellant made a conveyance of property, intending to give a preference to a preexisting creditor, being insolvent, but not in contemplation of insolvency, or of obtaining a discharge under said statute ; being ignorant of the existence of said stat ute, but not having, at the time, reasonable cause to believe himself solvent.</p> <p>Upon these facts, though it appeared that the appellant had, in all other respects, conformed to the provisions of law, the judge refused to grant him a discharge, but reserved the question for the consideration of the whole court.</p> <p>The question arose under the St. of 1841, c. 124, which was in addition to the St. of 1838, c. 163, and went into operation on thj 17th of April 1841. The 3d section of said St. of 1841 is in these words : “ The provisions of said act ” [Si. 1838, c. 163], “ are hereby so far extended, that no certificate of discharge shall be granted, or, if granted, it shall be of no effect, if a debtor, within six months before the filing of the petition by or against him, shall procure his lands, goods, moneys or chattels to be attached, sequestered, or seized on execution, or, being insolvent, or in contemplation of insolvency, shall, directly or indirectly, make any assignment, sale, transfer, or conveyance, either absolute or conditional, of any part of his estate, real or personal, intending to give a preference to a preexisting creditor, or to any person who is or may be liable as indorser or surety for such debtor, unless said debtor shall make it appear, that at the time of making such preference he had reasonable cause to believe himself solvent,” &c.</p>

<p>Assumpsit for provisions sold and delivered. The action was commenced on the 28th of August 1838. A bill of particulars was annexed to the writ, from which it appeared that the plaintiff’s account against the defendant consisted of charges, beginning in 1*830, and ending in 1833. The defendant relied on the statute of limitations as a bar to all the items of charge previous to August 28th 1832. The case was referred to an auditor, and the parties agreed that his report should be taken as a statement of the facts.</p> <p>The auditor disallowed several items in the plaintiffs’ account, for want of proof, and reported that if the statute of limitations ought to be applied, as the defendant insisted that it should be, the plaintiffs were entitled to recover $ 81-08 ; but if the statute was not a bar to any part of the charges, then the plaintiffs were entitled to recover $ 338-98.</p> <p>The testimony and facts reported by the auditor, which affected the question as to the statute of limitations, were these : A witness testified that he called on the defendant, in 1834 — he believed between January and March 20th — to settle the plaintiffs’ account, and presented the bill to him." The defendant said, “ there is an unsettled account between me and Penniman.” The witness called on the defendant once or twice afterwards, and the defendant gave as a reason for not settling, the account, that there was an unsettled bill between him and Penniman. The witness told the defendant, that he “ wished they would get together, and have their bill settled.” The defendant replied, “ we will.”</p> <p>The plaintiffs had entered, on their bill against the defendant, two items of credit, viz. “June 22d 1830: A calf, $4-20. April 26th 1831 : Cash, $ 17-60, beef of A. Bailey.” It was in evidence that the plaintiffs had the calf of the defendant, and that they, on the 22d of February 1831, bought an ox of A. Bailey and slaughtered it, and sold to the defendant 176 pounds of it, in choice pieces, for which the defendant paid $ 17-60, on said 26th of April.</p> <p>This case was argued at the last October term.</p>

<p>This was a writ of entry to recover a tract of land in Middleborough. The demandants counted on their own seizin, and a disseizin by the tenant and Abigail W. Thompson, who died after this suit was commenced, having devised all her real estate to the tenant. There was a disclaimer of part of the premises demanded in the writ, and issue was joined on the plea of nul disseizin as to the residue, consisting of about thirty-two acres, and a dwellingbouse thereon.</p> <p>The trial was had before Morton J. who made the following report thereof:</p> <p>It was proved, that on the 15th of November 1828, Thomas Darling conveyed the demanded premises to Jacob Thompson, father of said Mercy F. and Abigail W., in fee simple, by deed of release, and the same day said Jacob conveyed the same to said Darling in fee and in mortgage, and the deed was recorded January 5th 1829. On the 27th of July 1830, said Darling, by deed of that date, assigned and conveyed to the demandants the mortgage aforesaid, with all his right and interest in the premises.</p> <p>At the May term 1832, of this court, for the county of Plymouth, the demandants recovered conditional judgment against said Jacob for the demanded premises, and the condition not having been complied with, a writ of possession issued thereon, May 20th 1833, and by virtue thereof, September 23d 1833, the officer, to whom it was directed, caused the demandants to have possession of the demanded premises. That action was commenced April 25th 1831. Said Jacob being afterwards found in possession of the premises, February 1836, a complaint was made against him by the demandants, under Si. 1825, C. 89 ; and at the December term 1836, of the court of common pleas, the demandants recovered judgment against him for the possession of the demanded premises. The present suit was commenced September 16th 1837.</p> <p>It further appeared, that one portion of the demanded preñases, the house and twelve acres of the land, was conveyed by said Jacob to Allen Richmond, by deed of April 17th 1811, and that said Richmond conveyed the same to said Darling, in fee and in mortgage, October.l2th 1813. As to the other portion of the premises, about twenty acres, it appeared that on the 28th of July 1812, they were conveyed by said Jacob to Benjamin Parsons, in fee and in mortgage, and that said Parsons, on the 23d of December 1814, assigned and conveyed the same to said Darling, with all his interest therein. It did not appear that said Parsons or Darling ever had taken possession of the mortgaged premises.</p> <p>The tenant showed the following transactions : October 14th 1815, a deed of said Richmond’s right of redemption from Nathaniel Wilder, a deputy sheriff, to Abiel Washburn : November 5th 1818, a release thereof from said Washburn to Bradford Harlow : July 10th 1832, a release from said Harlow It said Abigail W. Thompson and Mercy F. Thompson, Eliza A. Thompson and Juliet Thompson, all daughters of said' Jacob Thompson. The tenant also showed a judgment and execution in favor of Freeman Waterman (father-in-law of said Jacob) against said Jacob, and a levy of said execution on said twenty acres, December 21st 1815 : Also a deed from Henry Pope, administrator of the estate of said Freeman Waterman, in pursuance of a license granted April 2d 1833, conveying all the right and interest of the said Freeman Waterman to Jacob Thompson 2d, for the consideration of five dollars, the date of which is May 14th 1833, the acknowledgment March 22d 1834, and the record April 1838 : And also a deed, signed by said Jacob 2d, purporting to convey the same to the tenant, for the same consideration, dated November 10th 1836, acknowledge January 16th 1837, and recorded April 11th 1838.</p> <p>Respecting the deeds produced by the tenant, the following facts appeared : Said Jacob, the father, contracted with said Washburn for said right of redemption, and, by his request, said Washburn first made a deed thereof to said Freeman Waterman, which said Jacob afterwards gave up to said Washburn, and had said deed made to said Harlow ; and by said Jacob’s request, said Harlow made said deed to said Abigail W. and others ; said Harlow not having paid or received any consideration. There was no evidence of the delivery of said deed by said Harlow to said Abigail, or to any of said grantees therein named, except their production in court; and it was proved that said Abigail, on “ being served with a notice in respect to this action, declared in presence of her father, that she never had any thing to do with the business, and never would have.”</p> <p>Neither said Washburn nor said Harlow ever redeemed the premises.</p> <p>Said Jacob Thompson 2d did not attend the auction when said Freeman’s said right was sold: January 16th 1837, said Jacob Thompson, the father, showed him said deed of said Pope (said grantee never having seen the deed before) and also a deed from said Jacob 2d to said Mercy F., which said Jacob 2d read and then signed and acknowledged. Said Jacob, tho father, took away both these deeds, and nothing further was proved respecting them, until their production in court. Said Freeman’s said right was bid off at said Pope’s auction, by Reuben Thompson, for five dollars paid by him, and said Jacob, the father, contracted with said Reuben therefor ; and on said Jacob 2d signing said deed, said Reuben received a note of hand, purporting to be signed by said Abigail W., for ten dollars, which said Bradford Harlow afterwards paid out of property of said Abigail’s in his hands. Said Jacob Thompson 2d never paid or received any consideration ; and he stated that all he had done in regard to the land was done at the request of Jacob Thompson, who about a year before asked him if he would take a deed and give one, to which he answered, he did not know but he would.</p> <p>The tenant’s counsel produced the notes of hand mentioned in the condition of said mortgages, and contended that it should therefore be presumed that the mortgages had been redeemed.</p> <p>On the margin of the record of said mortgage of Richmond to Darling is the following entry; “May 15. 1832. Then I, -Jacob Thompson, having purchased the within mortgage, and having received the full consideration therefor, do hereby discharge and quit my claim to the same, as witness my hand. Jacob Thompson. Attest—R. Cotton, Register.”</p> <p>Said Jacob, the father of said Abigail and Mercy, has lived on the demanded premises for the last fifteen years, except when dispossessed as aforesaid ; and one or other of his said daughters has usually lived in the house with him : Said Richmond left the premises eighteen or twenty years ago.</p> <p>The tenant was defaulted and the case reserved. On the above facts, judgment to be entered on the default, or the demandants to be nonsuit, or a new trial to be ordered, as the opinion of the whole court may be in the premises.</p> <p>This case was argued at the last October term</p>

<p>Before the St. of 1836, c. 273, prohibited pleas in bar, nul tiel Corporation might have been pleaded in bar, as well as in abatement; and since the passing of that statute, if plaintiffs sue as a corporation, and the defendant, on pleading the general issuer gives notice, conformably to the rule of the court, that he shall deny that the plain» tiffs are a corporation, they are bound to prove their corporate existence. But by pleading the general issue, without such notice, the defendant admits the existence of the corporation.</p>

<p>This was an action of trespass, brought against five defendants, for breaking and entering the plaintiffs’ close in Barnstable, called Sandy Neck, and taking cranberries therefrom m Septem ber and October 1837. The defendants pleaded the general issue, and gave notice that they should defend on the ground that the possession of the locus in quo was in third persons, and also that the alleged entry, &c. were under a license from Edward B. Hallett, who claimed'right.</p> <p>■At the trial, it appeared that the locus in quo is part of a neck of land, which extends five or six miles, between the sea and the salt marshes, from the line of the town of Sandwich to that part of the easterly end of the neck, which has been conveyed to the United States as a site for a lighthouse; and varying in width from 60 to 160 rods, and containing about 1100 acres ; about 100 or 150 acres of which are woodland, about 20 acres are covered with cranberry vines, and the remainder is entirely Darren.</p> <p>It was proved or admitted that all the defendants entered, &c on the locus, as alleged in the plaintiffs’ declaration.</p> <p>The plaintiffs offered no paper title, but relied on their occupation and possession, as sufficient to enable them to mainlain the action ; and to prove such occupation and possession, they introduced evidence of the votes and acts of the town, and their officers and agents, from the spring of the year 1831 to the time of the alleged trespass. They showed, that’ in the spring of the year 1831, the town of Barnstable voted to take possession of the locus, and appointed a committee for that purpose ; that the committee, thus appointed, and in pursuance of this authority, immediately entered and put up stakes about the tract, and placed notifications, on some of these stakes, that the town had taken possession, and forbidding all persons to enter thereon ; that they also advertised, in the public papers in the county, that they had thus taken possession ; that they, under the authority of the town, made certain regulations in regard to the picking of cranberries, fixing the day when they should be gathered, and requiring that each person gathering them should deliver a certain portion of what they should gather to the town ; and published notice of such regulations, in the newspapers of the county; and also that they cleared out the cranberry bogs in several places, and set out cranberry vines, which soon greatly-spread.</p> <p>Between the year 1831 and the time of the commencement of this action, the town passed several votes in reference to this property, and in all cases the committee or agents of the town acted under the authority thus given them; renewed the marks and stakes from time to time ; made regulations in regard to picking, as aforesaid, and published notice thereof from year to year in the newspapers of the county, therein forbidding all persons to take any of the products of Sandy Neck; received, in several instances, a portion of the cranberries picked by persons on the land, pursuant to the aforesaid regulations ; and in one instance sold a small quantity of wood from the land, and from time to time cleared out the cranberry bogs, cutting off and removing the trees, &c., and set out, from time to time, cranberry vines in many places on the territory.</p> <p>In the year 1833, the plaintiffs commenced an action against one Derrick, for a trespass committed on the locus, and recovered judgment against him, as by the record thereof will appear</p> <p>The defendants showed that in the year 1715 the proprietors of the common lan Is in Barnstable divided Sandy Neck into lots, and assigned said lots to divers individuals to hold in severalty. It also appeared, that Edward B. Hallett had, for many years, as well before as since 1831, taken cranberries and beach plums from Sandy Neck, claiming a right in the soil and a right to pick them, and that he, before the trespass complained of, gave leave to three of the defendants, to go upon the locus, and pick cranberries.</p> <p>The defendants denied that the town of Barnstable had ever had the exclusive possession and occupation of the premises since the year 1831, and offered evidence, that for many years sundry inhabitants of Yarmouth had been accustomed to pick cranberries and beach plums on Sandy Neck; that before and since the year 1831, sundry inhabitants of Yarmouth and Barn-stable had improved the premises by picking cranberries ; and offered evidence generally, to prove concurrent possession with the town of Barnstable.</p> <p>The defendants also offered evidence that individuals in Barn-stable had cut wood on the premises, as well since as before the year 1831, claiming a right to the soil; and one witness testified that he had a deed of a lot on Sandy Neck, but that he did not know, and never knew, where the lot was ; that he never entered upon it, and could not designate it.</p> <p>After the evidence on both sides had been put in, the case was taken from the jury by consent of parties. “ A default of all or any of the defendants, or a nonsuit, to be entered, as the opinion shall be on the whole case.”</p>

<p>This was an action by the assignee of William Marstins, an insolvent debtor, against the sheriff of Barnstable, for a false return upon an execution. The case was submitted to the court upon the following facts agreed :</p> <p>At a court of common pleas held at Barnstable, in September 1840, Samuel Fessenden and others recovered a judgment against said Marstins, upon which an execution duly issued, dated September 22d 1840. On the 29th of said September at meridian, this execution was delivered to the defendant, with instructions to extend the same upon the real estate of the debt- or, which was attached upon the writ. At the same time, the defendant made a memorandum upon a paper, that he then took in execution the lands of said Marstins ; but he made no minute upon the execution itself, nor any actual entry upon the land.</p> <p>On the next day, September 30th, the defendant obtained the description of the real estate of said Marstins, at the registry of deeds, and on the 1st of October following, at meridian, gave notice to said Marstins of said seizure, and desired him to appoint an appraiser. At half past 3 o’clock P. M. of the same day, the defendant went upon the land, for the first time, and on the next day, October 2d, the levy was completed.</p> <p>On the same 1st of October, the said Marstins petitioned the judge of probate, that a warrant should issue' to a messenger to take charge of his estate, under the provisions of the insolvent law (Si. 1838, c. 163). A warrant was then granted, and the first publication had on the same day, at half past 2 o’clock, P. M. The plaintiff was afterwards duly chosen assignee of said Marstins’s estate.</p> <p>The defendant made return, in due legal form, of the extent of said execution, and set forth in his return, that he seized, on the execution, the lands levied upon, “ September 29th 1840, at twelve o’clock, M.”</p> <p>It was agreed that if the acts of the defendant, as above set forth, were sufficient in law to constitute a legal seizure of the land on execution, and so to prevent the operation of said publication the plaintiff should become nonsuit. But that, if an actual entry on the land, or a minute on the execution, was necessary for that purpose, the "defendant should be defaulted, ana damages be assessed, as the court should direct.</p>

<p>Where an officer, in his return of an execution, states that he seized real estate on a certain day, but that by reason of prior attachments, further service was suspended, and that he afterwards caused appraisers to set off the estate, and the levy to be completed; the levy takes effect, and the title to the estate vests in the judgment creditor, from the time of the seizure.</p> <p>It seems that a debtor, whose property is assigned under St. 1838, c. 163, after his real estate is seized on execution, but before it is set off by appraisement, may choose an appraiser to act in the levy of the execution.</p> <p>If a magistrate certifies that a person, appointed as an appraiser of real estate taken on execution, made affirmation, under the pains and penalties of perjury, that he would faithfully and impartially appraise such real estate, &c. j it is sufficient, although he does not certify that such person was conscientiously scrupulous of taking an oath.</p>

<p>Where an agreement of certain creditors to give their debtor an extension of time, and to accept a part in discharge of the whole of their demands, is made on a condition that a certain other creditor shall execute the same agreement, and such creditor has previously made an assignment, for the benefit of his own creditors, of his demand against such debtor, the execution of said agreement by his assignees is a performance of that condition.</p> <p>If the holder of a note payable on demand makes a valid agreement with the principal promisor, without the consent of the surety, to receive payment by yearly instalments, he thereby discharges the surety.</p>

This was a libel for a divorce a vinculo, alleging the marriage of the parties at Taunton, in January 1831, and the wilful and utter desertion of the libellant by the respondent for the term of five years consecutively, from the first of February 1835, without her consent.

<p>Trespass de bonis asportatis. At the trial, before Wilde, J. it was admitted that the defendant, as deputy sheriff, attached and took away the goods mentioned in the plaintiff’s declaration, by virtue of two writs against Edward J. Hamblin. The plaintiff claimed the goods under a mortgage thereof made to him by said Hamblin, dated February 28th 1838, and recorded on the same day. The condition of this mortgage was thus : “ Provided, that if the said E. J. Hamblin, his executors or administrators, at or before the expiration of nine months from the date hereof, pay and discharge, or cause to be paid and discharged, all notes of hand, debts or liabilities whatsoever, on account whereof the said Hiram Haskell is holden for said E. J. Hamblin, or for the late firm of Hamblin & Lawrence, as indorser, joint promisor, surety or otherwise, and shall at all times hold the said Haskell in all respects harmless from loss or expense by reason of such indorsement or other liabilities so by him assumed— then the foregoing instrument, as also one promissory note of even date herewith, given by said Hamblin to said Haskell, promising to pay the sum of $ 2100, in nine months from said date, shall all be void.”</p> <p>The plaintiff took possession of the mortgaged goods before ihe defendant attached them as aforesaid, and “ continued said Hamblin in possession as his agent.” The plaintiff had been summoned as trustee of said Hamblin in both the suits on which said goods were attached by the defendant, and had been discharged.</p> <p>The defendant’s counsel contended that the plaintiff could not maintain this action, without proving that he had stated in writing and delivered, either to the attaching creditors or to the defendant, a just and true account of the debt or demand for which said goods were liable, and had made a demand for payment of the same, according to the provisions of the Rev. Sts c. 90, §§ 78, 79. The judge, being of this opinion, advised a nonsuit, which was entered, subject to the opinion of the whole court.</p>

<p>A plaintiff who commences an action against a firm on a note, given in the partnership name by one of its members, partly for his private debt and partly for a debt of the firm, may amend his declaration by filing new counts that embrace only the debt due from the firm, and may recover that debt on such new counts : But if the plaintiff knows, when he commences such action, that a private debt of one of the firm is included in the note, he must, as a condition of leave to amend, pay the defendants* costs to the time of making the amendment, and take no costs that accrued to him before that time.</p>

<p>The owner of a vessel made up an account of a voyage, and handed it to the mastei, with a promissory note for the balance which was struck in the master’s favor : The master took and carried them away, without expressing any dissatisfaction ; but returned the note, on the same day or the next, and requested the owner to procure an indorser : The owner took the note, and procured a third person to put his name on the back of it. Held, that such person was liable as an original promisor and surety.</p> <p>Where an agreement was made for the sale of land at a certain sum per rod, and a deed was made out but not acknowledged and delivered, because the land had not been measured ; and the owner afterwards acknowledged the deed and sent it to the registry, without the knowledge of the grantee ; it was held that the grantee had no title, as against a creditor of the grantor, who had attached the land before the grantee had accepted the deed, and had afterwards levied an execution upon it.</p>

These were actions of assumpsit, in which the general issue was pleaded, and notice given that the plaintiffs would be required to prove the legal existence of the defendants as a corpo ration. Putnam, J. before whom the cases were tried, made the following reports thereof: The action brought by the Narragansett Bank was on this bill of exchange : “ Nantucket, November 5. 1836.

Assumpsit for money paid. There was also a count for interest. The action was commenced on the 18th of December 1837, by John C. Dodge, Jesse Carpenter, Samuel Carpenter, Abiathar A. Richardson, Albert Carpenter, Thomas Harkness, and Thomas J. Stead.

<p>The Bristol Print Works, a manufacturing company incorporated by St. 1833, c. 45, were summoned as trustees of the principal defendant. The writ was served on them, November 9th 1839. On the 21st of December 1839, Charles Porter, clerk of said corporation, filed the following answer on oath : “ The said Sidebottom had been in the employment of the said Bristol Print Works from the 1st of October 1839, to the 9th of November 1839, and his wages at that time amounted to $47-62. Previous thereto, viz. March 27th 1838, the said Sidebottom drew an order upon the said Porter, clerk of said Print Works, in these words : ‘ Please to pay Leonard & Atwood my wages from month to month, as they become due, and what may now be due me from the Bristol Print Works, and oblige yours, &c. John Sidebottom.’ This order was accepted by said Porter, clerk of said Print Works, and for them , and said Leonard & Atwood have had all that said Sidebottom had earned in the employment of said Print Works, up to October 1st 1839.”</p> <p>In answer to the second interrogatory, put by the plaintiffs, viz. “ how much money of said Sidebottom was in your hands, when said writ was served, which had not been paid over to said Leonard & Atwood,” the said Porter replied, that “there was due to Sidebottom $ 47-62, at the time of the service of said writ upon said Print Works.”</p> <p>On the 24th of December 1839, said Porter subscribed and made oath to the following explanation of his answer to the above interrogatory : “ In saying there was due to Sidebottom $47-62, at the time of the service of the plaintiffs’ writ upon said corporation, he intended and meant that his, the said Side-bottom’s wages, embraced by the order aforesaid, amounted to that sum.” The plaintiffs objected, that said further statement ought not to be permitted to be made, as the examination of the trustees had been closed on a former day. But the court in which the suit was pending received the statement, and the plaintiffs thereupon proposed further interrogatories to said Porter, as follows :</p> <p>“ Do you or do you not mean, that at the time of the service of the writ on you, the said sum of $47-62 was due from the Print Works to said Sidebottom for wages, or not ? ” To this the answer was— “ I mean, as I have before stated, that at the time of the service of the writ on said corporation, I had, in their behalf, accepted an order drawn by said Sidebottom in favor of said Leonard & Atwood, to pay them the amount of his earnings while in the service of said corporation.”</p> <p>“Please to state distinctly how much money was in your hands at the time of the service of the writ on you, which has been earned by said Sidebottom.” Answer. “ Please recur to my disclosure before any interrogatory was propounded, and my answer to the second interrogatory, and the explanation foregoing.”</p> <p>The plaintiffs moved the court below to direct said Porter to answer the last interrogatory distinctly, and objected to the above answer as indistinct and improper ; but the court refused to direct him to answer more distinctly. Thereupon, the plaintiffs proposed further interrogatories, from the answers to which it appeared, that said Leonard & Atwood knew of the pendency of the trustee process ; but it did not appear that they had given said Porter any notice that they had made advances to Side bottom, in consequence of the acceptance of said order, or that they claimed that further payment should be made to them</p>

<p>If a debtor, who has been summoned as trustee of his creditor, pay him before he has any knowledge of the service of the trustee process, lie cannot be held as trustee, although lie suspected, when he made payment, that his creditor demanded it from an apprehension that a trustee process might be instituted.</p> <p>Where an entire contract is made for labor on a large number of articles in the process of manufacture, to be paid for when finished, the owner cannot be held as trustee of the laborer, until the work is performed on all the articles. #</p>

<p>Scire Facias. The defendants, having been summoned as trustees in an action brought by the plaintiffs against Charles Richmond, were defaulted. The execution, which thereupon issued, being returned unsatisfied, the plaintiffs brought this suit, and the defendants made their answer in substance as follows :</p> <p>On the 12th of April 1837, Samuel Crocker & Charles Richmond, partners in business, made an assignment to the defendants of all their partnership and individual property, in trust for their creditors, pursuant to St. 1836, c. 238. The debt, on which the plaintiffs recovered the judgment upon which this scire facias is brought, was contracted after said assignment was made, and could not have been proved under it. The defendants, before they were summoned as trustees in the plaintiffs’ suit against Richmond, had reconveyed to Richmond, at different times, most of the property so as aforesaid assigned by him, for the purpose of enabling him to secure or pay his creditors who had become or had a right to become parties to said assignment This reconveyance was made with the assent of all those creditors. After the defendants were summoned as trustees in the plaintiffs’ suit, they, for the same purpose, reconveyed to Richmond all the property, of every description, which he had assigned to them, and which they had not previously reconveyed to him. These reconveyances were made with the full consent of said creditors of Richmond, and at their request in writing; and they, in consideration thereof, discharged the defendants from all liability to them under the assignment.</p> <p>All the property, conveyed in the said assignment, was not sufficient to pay the debts that existed, and were proveable under the assignment against said Richmond.</p> <p>Said Richmond, after said property was reconveyed to him, ■ conveyed the same, in trust and otherwise, for the benefit of such creditors as did or might have become parties to the assignment, and made compromises and settlements with some if not all of said creditors.</p>

Assumpsit on the following order and acceptance : “Boston; August 4, 1840. Mr. Edward Cabot. Sir, You are requested to pay to Mr. William Bourne of Hanson a sum not exceeding $ 935, out of any funds you may have in your hands belonging to me. Cummings Litchfield.” “ Accepted to pay this order out of any funds that may come into my hands of the drawer, after deducting all sums that may be due and payable to me, and all legal charges. Aug. 4, 1840. Edwd.

<p>A note was secured by a mortgage, which contained an authority to the mortgagee or his assigns to sell the mortgaged property and apply the proceeds to the payment of the note : The mortgage was assigned to L., who assigned it to H., and also indorsed the note to H. after it became due: the property was sold, under said authority, for a sum insufficient to pay the note, and H. brought an action against the mortgagor, on the note, to recover the balance thereof. Held, that it was a good defence, and that the defendant might give evidence, that L. was the real assignee of the note and mortgage, at the time of said sale, and that he fraudulently managed the sale, and sold the property for less than it was worth, in order to obtain an absolute title thereto under its true value ; and that if the sale had been made dona fide, the property would have sold for more than enough to pay the note.</p>

Assumpsit to recover for services rendered and disbursements made by the plaintiff, as sheriff of this county, at the request of the defendants. The parties submitted the case to the court upon the following statement of facts : On the 13th of September 1836, the county commissioners, upon the petition of C. White & others, laid out a town way in Braintree, over land of Benjamin V. French, and awarded to him, as damages, the sum of $ 287.

Writ of error. The plaintiff in error was convicted at the December term, 1834, of the court of common pleas in this county, of the crime of breaking and entering the office of the President, Directors and Company of the Bank of Norfolk, in the night time of the 6th of August 1834, and there stealing, taking and carrying away divers bank bills amounting together to the sum of $20,615, and divers pieces of silver coin amounting together to the sum of $ 2397-35 ; and was…

<p>The defendant was tried in the court of common pleas, before Warren, J. on an indictment found at April term 1841, charging him with feloniously stealing, &c. certain lumber. After the testimony against him had been introduced, and the judge had instructed the jury, that the testimony, if believed by them, proved a larceny, the defendant proposed to prove a prior conviction of the same offence, as a bar to this indictment ; and offered, for that purpose, a record of certain proceedings before a justice of the peace in and for this county. On inspecting that record, it appeared that L. H. Loud, in January 1841, presented a complaint to said justice, in which he alleged that on the 10th of August 1840, certain lumber [admitted to be the same that was described in the indictment] was feloniously taken, stolen and carried away, and that the complainant had probable cause to suspect, and did suspect, that the defendant did feloniously take, steal and carry away the same ; that the said justice thereupon issued a warrant against the defendant, on which the defendant was carried before the justice and arraigned ; that the defendant pleaded that he was not guilty, and that, after a full hearing, the justice found him guilty and imposed on him a fine of ten dollars, with costs of prosecution.</p> <p>It was proved or admitted that the defendant paid the said fine and costs.</p> <p>The judge ruled, that said proceedings did not constitute a bar to this prosecution, and the jury found the defendant guilty. To this ruling the defendant excepted.</p>

<p>The indictment against the defendant alleged, that he and others committed an assault and battery upon Thomas Adams, one of the deputies of the sheriff of this county, when in the due and lawful exercise and discharge of the duties of his said office, and hindered and obstructed him in the due performance of those duties.</p> <p>At the trial in the court of common pleas, before Warren, J. “ it appeared that the person, upon whom the assault was committed, was commissioned as a deputy sheriff, by the name of Thomas Adams junior. The defendant contended, that there was a fatal variance between the allegation in the indict ment and the proof, in this particular ; but the judge ruled otherwise, and a verdict was returned against the defendant.” To this ruling the defendant alleged exceptions.</p>

<p>Writ of entry to recover a parcel of land in Roxbury Trial before Wilde, J. who made the following report of the case :</p> <p>The demandants claimed under a levy of an execution against John Haskins, made on the 19th of February 1840, the estate having been attached by them on the 20th of June 1838. The tenant claimed under a deed from said John Haskins, dated September 9tb, and recorded September 22d 1835. The demandants sought to impeach this deed as fraudulent against creditors. To prove the fraud, they called John Haskins, thg grantor, who testified that he conveyed the demanded premises to his father, the tenant, as collateral security for debts due to him, liabilities incurred by him, and sums which said John might thereafter owe him, and liabilities which the tenant might thereafter incur for said John ; and not to delay, hinder, or defraud creditors, or in any manner to put the same beyond their reach * That the tenant gave him back a paper, declaring the terms on which he had received the conveyance, and that he was to re-convey the land upon payment and full indemnity : That on die 9ill of March 1838, the said John settled his account with the tenant, and was found justly indebted to him, for sums then advanced and paid, $ 15,638, and gave his negotiable note, which he called a memorandum of the amount due from him to the tenant, and which he said was not written for negotiable paper, dated March 1st 1838, on demand, with interest; and that no part of the value of the land was deducted from the amount of this note ; and that it was agreed between him and the tenant, at the time of this settlement, that the witness should thereafter cease to have any legal or equitable interest in the land, .and that the same should thereafter belong absolutely to the tenant: That there was a friendly understanding between him and the tenant, that if, contrary to their expectations, (both then believing the land not to be worth half the debt, and that no surplus could remain,) the land should rise in value, so as to produce, on sale, more than the amount of said note and interest, the tenant was to give to the witness the benefit of such surplus, upon such sale : That at this settlement, nothing was said about the paper given back by the tenant when he took his deed on the 9th of September 1835 ; the witness declaring that he had forgotten the paper at that time : That the paper was then in Roxbury, and the said settlement was made in Boston ; and that it would have been given up, if it had been recollected : That in the autumn of 1839, the witness, having been absent for a time, returned to Roxbury, and accidentally found the paper in an old pockelbook, and thinking the tenant ought to have it, pursuant to the terms of the settlement of March 1838, gave it up to him, and had never seen it since.</p> <p>The tenant thereupon made affidavit, that he had made diligent search for said paper, and could not find it, and that he supposed it was destroyed.</p> <p>The demandants objected to oral evidence of the contents of said paper, but the objection was overruled ; and the witness then testified, that the paper contained an agreement on the part of the tenant to reconvey to him the premises when he should pay all he owed or might thereafter owe the tenant, and all sums for which the tenant then was or might thereafter become liable on account of the witness: That at the time of making said conveyance and said paper, the witness owed the tenant $3793, and the tenant was then legally liable for the witness to the amount of $7024 ; and that it was expected the witness would have more money of him, and that he would incur further liabilities on account of the witness.</p> <p>This witness, and others also, testified that the land in question, subject to prior legal incumbrances, was not then, and is not now, worth half the amount of the sums which he testified that he owed to the tenant.</p> <p>The jury were instructed, that the paper given back by the tenant, September 9th 1835, was only evidence of fraud, but not conclusive evidence, and that it was for them to determine, upon the testimony of John Haskins, and all the evidence in the case, whether the deed was made bond fide, or with an intent to delay, hinder, or defraud creditors ; and that the burden of proof was on the tenant, after the existence of said paper was proved.</p> <p>The jury were further instructed, that if they should be of opinion that the deed-was originally fraudulent as against creditors, yet if they believed the testimony of said John Haskins, as to what took place in March 1838, before the original attachment of the land by the demandants; and if they should be of opinion — giving due effect to the fact, that the said paper signed by the tenant was not given up at the time of the adjustment— that there was then no actual intention to delay, hinder, or defraud creditors, but that the transactions were bond fide and fair at the time of said settlement — what then took place would purge any supposed fraud in the deed, and the title of the tenant would be valid.</p> <p>The jury found a verdict for the tenant, and the demandants moved for a new trial. Verdict to be set aside, and a new trial grantee, if either of the foregoing rulings or instructions was incorrect in point of law ; otherwise, judgment to be rendered on the verdict.</p>

<p>Under St. 1840, c. 87, which gives to the supreme judicial court, “ original and exclusive jurisdiction of all writs of entry, except for the foreclosure of mortgages,” the court has not original jurisdiction of a writ of entry brought by a mortgagee after the condition of the mortgage is broken, although he does not mention the mortgage deed, nor the condition thereof, in his count.</p>

<p>A fund was placed in the hands of A. and B. in trust for the benefit of L. ard C.f and the donors of the fund, pursuant to a power originally reserved by them to make new limitations of said trust fund, afterwards directed that A. and B. should hold such part of L.Vahare of the fund, as remained in their hands, in trust to be applied for the support of the children of L. in such way, and in such proportions, as A. and B. might see fit. Held, that the holders of the trust fund could not be charged, in the process of foreign attachment, as uustees of the husband of a daughter of L.</p> <p>A trustee of a fund that was raised for the benefit of L. and C. paid to L. the greater part of her share of the principal thereof, and took from her and her husband a full release, and thereupon agreed to pay the residue of the fund, that would have belonged to L., to her children, after her decease : The donors of the fund afterwards confirmed the doings of the trustee, but made new limitations of the fund, inconsistent with his said agreement: Held, that said agreement was without consideration, and that it was not confirmed by said donors.</p>

<p>Where a lease for a certain term is made by paroi, and the lessee agrees to quit at any time within the term, if the demised premises shall be sold, he becomes a tenant at sufferance if he holds over after they are sold, and is liable, without notice to quit, to the process provided by the Rev. Sts. c. 104, § 4.</p>

<p>A finder of lost property, for the restoration of which the owner has offered a reward, has a lien on the property, and may retain possession of it, if, on his offer to restore it, the owner refuses to pay the leward</p>

This was a complaint, in which it was alleged that the complainant was seized and possessed of a tract of land in Fox-borough ; that Elisha Sherman, on the 1st of October 1825, erected a dam across a stream which runs through said land, for the purpose of collecting and detaining water to drive certain mills upon and near said dam, and that Schenck, the respondent, assignee of said Sherman, had continued the dam for the same purpose, whereby said land had been overflowed,…

Assumpsit on a promissory note of the defendant for $ 135, dated November 29th 1836, and made payable to the plaintiff, or his order, on demand with interest. The execution of the note being proved, at the trial in the court of common pleas, before Williams, C. J. the defendant gave in evidence a receipt, signed by the plaintiff, dated May 13th 1839, (which was before the commencement of this action,) wherein he acknowledged full payment of said note by the defendant.

Assumpsit on a promissory note alleged to have been made by the defendant to G. Townsend, the plaintiff’s testator, for value received. There was also a count for money had and received. It was agreed by the parties, in the court of common pleas, that the defendant executed a note, .which was produced by the plaintiff and was in the terms which follow : “ I promise to pay Gregory Townsend two hundred dollars with interest Medfield, April 8, 1837.

<p>This case was tried before Wilde J. who made the following report of it:</p> <p>This was an action of assumpsit, and the declaration set forth an agreement of the plaintiff, that he would bargain, sell, assign, transfer and set over to the defendant, and indorse without recourse to him, the plaintiff, in any event, two notes of hand by him held, signed by S. J. Gardner ; one dated April 24th 1835, for the payment of $ 1500 ; the other dated May 5tb 1836, for the payment of $ 500 ; and both payable to the plaintiff, or order, on the 3d of April 1839, with interest from their dates. The declaration set forth an agreement by the defendant, in consideration of the plaintiff’s agreement aforesaid, and in payment for said Gardner’s said notes, to pay the plaintiff $ 1000 in cash, and to give the plaintiff a post note, made by the Lafayette Bank, for $ 1000, and also a note signed by J. B. Russell & Co. and indorsed by D. W. Williams, for $ 1000.</p> <p>The plaintiff, at the trial, proved an oral agreement with the defendant, as set forth in the declaration, and an offer by the plaintiff to comply with his part of said agreement, and a tender of said Gardner’s said notes, indorsed by the plaintiff, without recourse to him in any event, and a demand upon the defendant to fulfil his part of said agreement, and the refusal of the defendant to do so : But the plaintiff introduced no evidence tending to show that any thing passed between the parties at the time of making the said agreement, or was given in earnest to bind the bargain.</p> <p>The judge advised a nonsuit upon this evidence, because the contract was not in writing nor proved by any note or memorandum in writing signed by the defendant or his agent, and nothing was'received by the purchaser, nor given in earnest to bind the bargain. A nonsuit was accordingly entered, which is to stand, if in the opinion of the whole court the agreement, set forth in the declaration, falls within the statute of frauds — Rev. Sts. c. 74, §4 : Otherwise, the nonsuit to be taken off, and a new trial granted.</p>

<p>Writ of entry to recover land in Braintree. The demand-ants claimed title under the will of Ebenezer Thayer, who devised all his real estate, except-such part thereof as might be necessary for the payment of his debts, to his wife for life, and after her decease, one fifth thereof to his two grandsons, children of a deceased son, and the other four fifths to his four surviving sons, two of whom he appointed executors of his will, giving them full power and authority to sell and pass deeds of such parts and so much of his real estate, as might be necessary to pay all his debts which his personal property, not bequeathed to his wife, might be insufficient to pay. The will was proved and allowed on the first Tuesday of August 1809, and letters testamentary were thereupon granted to said executors, and they gave bond and entered upon the execution of their trust, and gave due notice of their appointment. On the 14th of November 1809, they duly filed in the probate office an affidavit of the fact of their having given such notice.</p> <p>The tenant claimed title through several mesne conveyances from Samuel Penniman and Daniel Hayward, creditors of said Ebenezer Thayer, the testator.</p> <p>Said Penniman held a promissory note of the testator, payable on demand, on which said executors paid interest till April 1817. He commenced an action thereon against them, at the April term of the court of common pleas, in 1818, and they appeared and answered thereto. At the following Decembrr term, judgment was rendered for said Penniman, on which a third alias execution was issued, on the Sth of March 1820, against the property of the testator in his executors’ hands, and the same was duly levied on real estate of the testator, part of the demanded premises, and was returned satisfied.</p> <p>Said Hayward held two like promissory notes of the testator, on which said executors paid interest to March 1815, ai d oil which he commenced an action against them at the April term of the court of common pleas, in 1819, which action was carried, by demurrer, to the supreme judicial court ; and at the October term thereof, in 1819, said Hayward recovered judgment, and shortly after took out execution and duly levied the same on the other part of the demanded premises, as the estate of the said testator.</p> <p>Before either of said suits was commenced against said executors, they had sold, under the authority given them by said will, property of the testator sufficient to pay all his debts and the expenses of administration.</p> <p>The demandants in this suit are the heirs of two of the testator’s four sons, (including one of his executors,) to whom he devised, as above set forth, four fifths of his real estate ; and also one of the two grandsons to whom the testator devised one fifth of his real estate, and the heirs of the other of said grandsons : The several proportions claimed by the demandants amount to three fifths of the premises described in their count. [See Rev. Sts. c. 101, § 10.]</p> <p>The case was submitted to the court on the foregoing facts, which were agreed by the parties. Judgment to be rendered for the demandants, if in the opinion of the court they are entitled to recover ; and the value of the improvements made by the tenant, and also the value of the mesne profits, to be assessed by referees : Otherwise, the demandants to become nonsuit.</p>

<p>The rule, that a writ of error will not lie where the party aggrieved is entitled to an appeal, applies to the case of a defendant, whose motion to dismiss the action against him for want of due service is overruled by the court below, and who there upon withdraws his appearance and is defaulted.</p>

<p>Petition for a writ of mandamus to be directed to the county commissioners, requiring them to issue a warrant to summon a jury to make alterations in a highway. The facts of the case are fully stated in the opinion of the court.</p> <p>The argument was bad at the last November term.</p>

<p>This petition for a mandamus was argued at the last November term, by Rantoul Ward, for the petitioners, and by Saltonstall fy JV*. J. Lord, for the respondents. The opinion of the court, which was delivered at this term, shows all the facts of the case, and the grounds taken by the respective counsel.</p>

This was an action of debt to recover $ 100 for breach of the following agreement : “ Know all men by these presents, that I Richard Stickney, in consideration that Hardy Phippen will permit me to purchase a certain piece of land, to be sold this day, bounded on said Phippen and myself, do hereby agree to purchase the said lot of land, and by this instrument do hereby agree to sell and convey to said Phippen the said piece of land on such terms as we, the said Phippen and…

Covenant Broken. The declaration alleged that the de fendant, on the 2d of June 1815, by his deed conveyed certain land in Andover to Thomas Holt, and in said deed covenanted with Holt, his heirs and assigns, that the conveyed premises were free from all incumbrances : That the plaintiffs, by virtue of a conveyance of said land by Holt, and by sundry subsequent conveyances thereof, have acquired title thereto, and, on the 5th of November 1830, became the assigns of the…

Assumpsit to recover the amount of two promissory notes, dated April 1st 1828, each for the sum of $20, one payable in six months, and the other in twelve months from date, with interest after, given by Ebenezer Boynton, the father of the defendant, to the plaintiff.

<p>Writ of entry. The demandant claimed the land in question under a levy of an execution issued on a judgment recovered by him against one Gould ; the attachment having been made on the 3d of December 1836. The tenant claimed the land undei a deed given to him by Gould on the 15th of November 1836, but not recorded in the county registry until the 6th of December 1836; and the defence was, that the demandant had notice of the existence of said deed, before he attached the land.</p> <p>Morton, J. before whom the case was tried, instructed the jury that it was not necessary, in order to enable the tenant to hold under his deed, that he should prove that the demandant had positive and certain knowledge of its existence : That it was not necessary that the demandant should have such knowledge as he would acquire from having seen the deed, or being told thereof by the grantor ; but that the notice was sufficient, if it was such as men in the ordinary affairs of life usually act upon : And the judge referred, by way of illustration, to a notice of a marriage or death in a newspaper, which would show to the jury the kind of notice which the law required. To this instruction the demandant excepted. The verdict was for the tenant. Judgment to be rendered on the verdict, if the above instruction was correct ; otherwise, a new trial to be granted.</p>

<p>On the 2d of May 1837, the parties to this action made and signed an agreement in these words : “It is agreed that Mr. Upton takes the stock which Lemuel Higby had of him, and James C. Stimpson shall decide how much Mr. Upton shall pay for labor, bark, &c. expended on the same by said Higby, in the process of manufacturing into upper leather and its betterments.” The plaintiff brought an action on this agreement, to recover for labor done by him on 1263 sides of leather, which, as he averred, constituted “the stock” in said agreement mentioned. After the action came into this court, the parties re ferred it, “ and all demands connected with the same,” to the determination of J. G. King, Esq. under a rule of court. The award of the referee concluded thus : “ That there is due to said Upton from said Higby, upon all the demands submitted to the referee, a balance of $44-45, and that the said Upton recover the same of said Higby. The claim of said Upton against said Higby, for the value of thirty-nine hides, delivered to said Higby and not returned to said Upton, was considered by the referee, in finding the above balance against said Higby.”</p> <p>At the last April term, the defendant moved that the award should be accepted by the court. The plaintiff resisted this motion, and it was brought before the full court, upon the question whether the referee was “ authorized to include all the matters contained in his report.” If not, then the award was to be set aside, and such disposition made of the case as the court might order.</p>

This was a petition for partition, in which it was alleged that the petitioners were seized, in right of the wife, of several tracts of land therein described, as tenants in common with the respondent. The respondent pleaded that he was sole seized, and that the petitioners were not seized in manner and form as they had alleged. The trial was before the chief justice, who thus reported the case : Both parties claimed under John Mansfield late of Danvers, deceased.

<p>Where an attachment of goods is dissolved by an assignment of the debtor’s property, under St. 1838, c. 163, the officer’s bailee of the goods, who has undertaken to re< deliver them to him, is discharged from his undertaking, although he has an indemnity against any loss he may sustain by it.</p>

<p>Where plaintiffs sue as a corporation, and the defendant, on pleading the general issue, gives notice, conformably to the rule of the court, that he shall deny their corporate existence, they must prove it, or they cannot maintain their action.</p> <p>A subscription paper recited that a religious society was about to erect a meetinghouse, and had chosen a prudential committee, and that certain individuals were willing to contribute towards llie expense of purchasing land, and erecting said house, and that the subscribers engaged to pay to said committee, or their order, such sums of money as were affixed by the subscribers to their respective names ; R. signed said paper and affixed his seal thereto, and added the words, “ ten shares, five hundred dollars and three others subscribed $5 each : No house was built, nor were any shares in any stock or property ever made. Held, that the society could maintain no„ action against R. on his subscription.</p>

<p>By the Si. of 1839, c. 158, the properly, in this State, of a "corporation incorporated by any other State,” may be attached by the trustee process.</p> <p>A judgment in the trustee process, in this State, against an inhabitant of the State, who owes a debt to a corporation established in another State, will protect the trustee against a suit brought in that State, by such corporation, to recover such debt.</p> <p>Where a plea to the jurisdiction of the court is triable by the record, the judgment, if for the plaintiff, is not peremptory, but that the defendant answer over.</p>

This was a writ of entry to recover an undivided moiety of certain lots of land in Salem.

<p>Assumpsit to recover pay for supplies furnished by the ■ plaintiffs, in 1840, to the wife and four children of Wm. Patten, paupers, whose settlement was alleged to be in Bradford. The only question in the case was, whether said Patten, the husband and father of the paupers, had a settlement in West Newbury. This question was submitted to the court on the following facts agreed :</p> <p>In the year 1838, said Patten was an inhabitant of West Newbury, but had not resided there ten years together ; and he had no settlement in this Commonwealth. In August or September of that year, he applied to the overseers of the poor of that town for aid, and they directed one Carr and one Bayley to supply him and his family with necessaries to a certain amount, which they did. In November following, said Patten himself paid Carr and Bayley for said necessaries.</p> <p>At the time when the supplies, which are the subject of this suit, were furnished, said Patten had resided in West Newbury for the space of ten years together, and had paid all taxes duly assessed upon him for five years within said time, viz. the county and town taxes for the years 1831, 1832, 1834, 1835, and 1836.</p> <p>The wife of said Patten, at the time of her marriage, had her legal settlement in Bradford.</p> <p>Defendants to be defaulted, or judgment to be rendered for them, according to the opinion of the court on the foregoing facts. ■</p>

This was an action of debt, and was submitted to the court upon the following facts agreed by the parties : “ On the 27th of March 1837, said Moody was duly chosen by said inhabitants to be one of their assessors for the year ensuing, together with Jacob Stickney Jr. and Moody Pearson, as his associates ; and said Moody was duly qualified as such assessor on the 29th of said March, and thereupon entered upon the duties of said office, and duly performed the same for the…

Assumpsit by the indorsee against the indorser of a promissory note for $ 1000, dated January 15th 1837, and payable to the defendant, or his order, in' two years from date, with interest. The money counts were added. The note declared on was signed jointly and severally, by Tarr & Marshall, Ezekiel Bradstreet, Samuel S. Carnage, and Stephen N. Tarr, and was indorsed by the defendant in blank.

<p>This was an action of debt on a bond for the liberty of the prison limits, and was submitted to the court on the following facts agreed by the parties :</p> <p>In 1814, the plaintiff paid money as surely for John Jewett, one of the defendants, and in 1840 brought a suit against him to recover back the money so paid. Said Jewett, among other defences, relied on the statute of limitations. The plaintiff, to meet this part of the defence, proved a part payment by the defendant, in 1839, and by reason thereof recovered judgment against him, at November term, 1840, as stated and shown in the report of the case of Ilsley v. Jewett, 2 Met. 168, which is to be considered as part of this case. Said judgment was for the sum of $ 349-89 damages, and $44-95 costs of suit, and the plaintiff took out execution thereon, and caused the defendant to be committed, on said execution, to the jail in Ipswich. Said defendant, and his co-defendants in this suit, as his sureties, thereupon gave bond for the liberty of the prison limits, conditioned, (as is required by the Rev. Sts. c. 97, § 63,) that he would not go without the exterior limits of the prison, until he should be lawfully discharged, &.c. But after the giving of said bond, and before the commencement of this suit, and also before he was discharged, he went, several times, without tl e boundaries of the town of Ipswich.</p> <p>Defendants to be defaulted, if such going without the boundaries of the town of Ipswich was a breach of the condition of said bond ; if not, the plaintiff to become nonsuit.</p>

<p>This was an indictment for a nuisance in erecting and maintaining a fence and a part of a dwellinghouse upon a town way in Salem, called Peabody Street.</p> <p>It appeared at the trial in the court of common pleas, before Warren, J. that the way described was laid out by the selectmen of Salem, and accepted by the town, in May 1820, and that the land upon which the alleged nuisance is erected wax then the property of one Ward. The defendant offered no evidence of title under said Ward.</p> <p>It did not appear, by the return of the proceedings of the selectmen, that the said Ward had any notice of those proceedings ; and the defendant • contended that, for this reason, they were altogether void. The judge overruled this objection.</p> <p>It appeared that the way runs east and west, and was laid out 41 feet wide ; that the erections, mentioned in the indictment, are on the south side of the way ; and that at the time of the laying out, the north line of the way was below high-water mark. The defendant contended, that as a part of the way was thus laid out between high and low water mark, the whole proceeding was irregular and void, although the erections complained of were above high-water mark. But the judge ruled otherwise, and a verdict was returned against the defendant.</p> <p>To each of the rulings aforesaid the defendant alleged exceptions.</p>

<p>The first count in the indictment against the defendant alleged that he, at Newbury, on the 1st of April 1840, and on divers days, &c. “ without any authority or license therefor duly had and obtained according to law, did presume to be, and was, a common seller of wine, brandy, rum, and other spiritous liquor, to be used in and about his shop, against the peace of the Commonwealth, and contrary to the form of the statute in such case made and provided.” There were five other counts in the indictment, charging the defendant with selling, without any legal license or authority therefor, different quantities of spiritous liquor, at different times.</p> <p>The defendant was tried at the last September term of the court of common pleas, before Strong, J. and was found guilty on the first, fourth, and sixth counts, and not guilty on the othe/ three counts. He thereupon filed exceptions to the ruling of the judge as to the evidence introduced to support the fourth and sixth counts, and also a motion in arrest of judgment. The cause assigned for arresting judgment on the first count was, “ because it is not therein averred that the respondent was an innholder or common victualler.” The judge overruled the motion in arrest, and the case was brought into this court.</p> <p>] t became unnecessary for the court to decide any question in the cause, besides that which arose on the motion to arrest judgment on the first count in the indictment.</p>

<p>Four writs of error ; the first three to reverse judgments of the municipal court, and the other to reverse a judgment of this court, by which the plaintiff in error was sentenced to additional punishment, on an information filed by the attorney for the Commonwealth. To that information, which was filed in the municipal court, at the February term 1835, the plaintiff in error demurred ; but the demurrer was overruled, and he xvas thereupon sentenced to additional punishment. He then appealed to this court, under a statute then in force, which allowed such a( peal, and at the March term 1835, the court adjudged that the information was sufficient in law, and sentenced the appellant to solitary imprisonment five days, and to confinement afterwards to hard labor seven years in the state prison.</p> <p>That information set forth three convictions óf the plaintiff in error, and the sentences thereon. The first was a conviction at the April term 1816, of the municipal court, of the crime of larceny in a shop, in the night time, and a sentence to hard labor in the state prison for the term of two years ; and it was averred that this sentence was executed, and that the plaintiff in error xvas therefrom discharged, and that he departed from the state prison on the 3d of May 1818. The second, was a conviction at the July term of the municipal court, 1818, of the crime of robbery, and a sentence to the state prison for life ; and the information set forth that the plaintiff in error remained in said prison, “ in execution of said sentence, until the 30th of May 1829, when he was discharged from said state prison, in consequence of a pardon granted to him by the supreme executive of the Commonwealth ; and, on said 30th of May, he departed from said state prison.” The third conviction xvas of the crime of larceny in a shop, in the night time, and was had at the April term 1832, of the municipal court, and the sentence was three years’ hard labor in the state prison.</p> <p>The grounds on which these writs of error xvere brought, fully appear in the opinion of the court.</p> <p>The arguments were had at the last March term.</p>

<p>By the Rev. Sts. c. 126, § 19, If a person be convicted of three distinct larcenies, at the same term of the court, there must be a consolidated' judgment against him, as a common and notorious thief; if separate judgments are awarded on the separate convictions, all those judgments are erroneous.</p> <p>If an indictment for stealing, in a shop or warehouse, property of less value than $ 100, do not allege that the offence was committed "in the day time,’* the defend» ant, on conviction, can be punished only for a simple larceny.</p>

<p>Six writs of error. The whole matter is shown in the opinion of the court.</p>

The new trial, which was granted in this case, (1 Met. 193) was had at the November term 1840.

Bills in equity. In the first, J. T. Stevenson, C. P. Cur tis and James S. Bruce were plaintiffs, and S. Austin Jr. and George Wildes & Co. defendants. In the second, the plaintiffs were the members of the firm of Russell & Sturgis, and the defendants were S. Austin Jr., George Wildes & Co., James Phillips Jr., James S. Bruce, J. T. Stevenson, and C. P. Curtis.

<p>The terms of a written contract for the sale of goods may be varied by a subsequent paroi contract, though the original contract falls within the operation of the statute of frauds.</p> <p>in a suit for breacli of a written agreement to manufacture, and deliver weekly to the plaintiff, a certain quantity of cloth, at a certain price per yard, on eight months’ credit, it was held that the defendant might give in evidence, as a good defence, a subsequent paroi agreement between him and the plaintiff, made on a legal consideration, by which'the terms of payment were varied, and that the plaintiff had refused to perform the paroi agreement.</p>

<p>It is a sufficient demand and refusal to constitute a dishonor of a note, if the maker, on the day it is due, calls on the holder at his place of business, where the note is, and declares that he is unable to pay it, and shall not pay it, and desires the holder to give notice to the indorser.</p> <p>A notice given to the indorser of a note, in the forenoon of the day on which it becomes due, merely stating that the person giving notice holds the note, and that it is due and unpaid, and demanding payment, is not sufficient to charge the indorser.</p>

Scire facias on a judgment recovered against the defendant, in a suit in which he was summoned as trustee of the Commonwealth Bank.

It appeared from the answers of John Kilton and Stephen Sibley, who were summoned as trustees of Weeks, the principal defendant, that Weeks, on the 22d of December 1837, assigned to them all his property, for the benefit of his creditors, pursuant to St. 1836, c. 238 : That, at the time of the assignment, Weeks owed Kilton $ 400, and Sibley $ 403-65, including Sibley’s liabilities as indorser for Weeks : That on the day next before the assignment was made, Weeks delivereu…

<p>A mortgage of a stock in trade is not fraudulent per se, although it is therein agreed that the mortgagor may trade with, sell, and dispose of some of the mortgaged goods^ provided he forthwith purchase, and place in ins store, other like goods of like value, and apply the sales thereof to the payment of the debt which the mortgage was made to secure.</p> <p>Where a mortgage of goods was made to secure payment of money lent, and for which no other security was given, and the mortgagee, by writing on the mortgage, assigned all his interest in the instrument, and every thing therein contained, and authorized the assignee to take all legal measures for the recovery to his own use and enjoyment of all the assigned premises ; it was held that the debt for money lent was thereby assigned. Held also, that there was no implied warranty, by the mortgagee, of his title to the mortgaged goods, and that he was a competent witness for the assignee in a suit wherein the validity of the mortgage and of the assignment was brought into question.</p>

<p>Taxes, being neither judgments nor contracts, are not the subject of set-off, under tbe provisions of the Rev. Sts. c. 96.</p>

<p>An insolvent debtor’s right of action, for the recovery of threefold the amount of interest paid by him on a usurious contract, passes by an assignment of his estate, &c. under St» 1838, c. 163, § 5, and his assignee may maintain a bill in equity to recover it.</p>

<p>This was an action of covenant broken, and was submitted to the court on an agreed statement of facts, which sufficiently appear in the opinion of the court.</p>

<p>Two bills in equity to redeem two parcels of land in Boston. The only material facts, as they were set forth in the bills, the answers, and an agreed statement, were these:</p> <p>In February 1839, the defendants recovered two judgments, in this court, against John French, and levied executions, in satisfaction thereof, on the parcels of land which the plaintiff, by his bills, sought to redeem. William P. Brown also recovered a judgment against said French, and after the levies of the de fendants’. said executions, levied the execution, which issued on his said judgment, upon French’s right to redeem the lands levied upon, as aforesaid, by the defendants, and received from the officer a deed of French’s said right, pursuant to the Rev. Sts. c. 73, § 48. The right, which Brown thus acquired to the lands in question, he duly transferred to the plaintiff, who filed these bills within one year after Brown’s said levy.</p> <p>The aforesaid judgments, recovered by the defendants against French, were founded on two promissory notes made by John Thompson, payable to French, or his order, indorsed by French, and discounted by the defendants for Thompson. One of these notes was for $ 12,000, dated June 7th 1836 ; the other for $3000, dated October 21st 1836. When the defendants made loans to Thompson by discounting these notes, he lodged other promissory notes as collateral security for payment of the same : And when the note for $3000 was discounted for him, he executed the following agreement: “ Be it known, that I the subscriber for and in consideration of three thousand dollars, this day loaned, on my obligation indorsed by John French, by the Washington Bank, have sold, and do hereby sell, assign, and transfer unto the President, Directors and Company of said bank, a note signed by G. W. Lewis favor H. & W. Lincoln, Oct. 18th 1836, 4 months, for $2500, and Eli Robbins’s note favor J. Tremlette, Sept. 22d 1836, in ninety days, for $793-75, with full power to retain the same, as collateral security, on the following conditions, viz : That for the punctual payment of this or any other sum which I have obtained, or may hereafter obtain, on loan or discount from said bank, these notes are hereby pledged and made liable ; and the directors of said bank are hereby authorized, after said loan or loans have become due and payable, and shall remain unpaid, to sell the said notes or any part thereof, either at public or private sale, and after deducting the amount due the bank, to place the balance, if any, to my credit on their books, subject to my order. Provided, that after the full payment of said loan or loans, the said President, Directors and Company shall, on demand, retransfer to me the said notes, if not sold for the causes aforesaid. Boston, Oct. 21st 1836. John Thompson.”</p> <p>■ An agreement, containing the same terms as to the collateral security, was also executed by Thompson, when the $12,000 note was discounted for him.</p> <p>On the 23d of May 1838, Thompson entered into a sealed agreement with the defendants, in which — after stating that he was indebted to them in large sums on his promissory notes, upon some of which John French was indorser, surety, or guarantor, and that he had transferred, as security for payment of those notes, certain other notes, drafts and securities — he authorized the defendants to hold all those notes, drafts and securities, as collateral security for all the notes which he owed to the defendants, and upon which said French was in any way liable, and to collect and apply the proceeds of such collateral securities to the payment of the notes on which French was liable as aforesaid. It was also a part of this agreement, that the defendants should not be under any obligation to delay or omit to collect of Thompson or of French the notes due from them ; and that, as soon as those notes should in any way be paid or satisfied, the residue of said collateral security, and the proceeds thereof, should belong to said French, and should be delivered to him by the defendants, to repay him what he might pay to the defendants as indorser, &c. of Thompson, and to indemnify him against other liabilities incurred by him for Thompson.</p> <p>Before the defendants took judgment on the $ 12,000 note abovementioned, they had collected $5326-97, on the notes lodged with them by Thompson as collateral security when that note was discounted,, and deducted that amount on making up judgment. They had also collected on the collateral security that was lodged when the $ 3000 note was discounted, the sum of $793-75, (the amount of E. Robbins’s note,) which was deducted from that note on making up the judgment in the suit thereon. French defended the suit on the $12,000 note, on ■the ground that the defendants had received payment thereof, in full, from Thompson, by way of the collateral security or other wise ; but this defence failed.</p> <p>After the defendants had taken judgment in said suits, they received, on said collateral security, $ 613-24, which they applied towards payment of another note for $4000, signed by Thompson and French jointly, and discounted by the defendants for Thompson, in 1833; and also $2536-03, (on G. W. Lewis’s note,) which they applied towards payment of other demands which they held against Thompson for money lent to him on notes indorsed by French.</p> <p>The plaintiff denied the defendants’ right thus to apply the money received after said judgments were made up, and insisted that it should have been applied to the discharge of those judgments pro tanto.</p> <p>The cases of Washington Bank v. Lewis & Lincoln, 22 Pick. 24, were made part of the defendants’ answers to the bills.</p>

<p>A covenant by tenants in common, that a certain parcel of their land shall be occupied in common, as a yard, by them and their heirs and assigns for ever, is no bar to a petition for partition of that parcel. In such case, neither party can maintain a plea of sole seizin ; and the right of occupation will remain, after partition, as it existed before.</p> <p>A tenant in common, who has not been actually ousted, can maintain a petition for partition, although he may, for the sake of a remedy, have elected to consider himself disseized, and brought a writ of entry against bis cotenant, counting on a disseizin by him.</p>

<p>A house, which was under mortgage, was conveyed by deed of warranty to A. in trust for a married woman, with the consent of her husband, and was paid for with money which was tiers before marriage. The husband and wife entered into possession. The wife afterwards obtained a divorce from bed and board, and A. thereupon con veyed the house to her. Before the divorce, the husband took an assignment of the mortgage on the house, and made an entry for foreclosure, in the manner prescribed by the Kev. Sis. c. 107, and then transferred the mortgage to B. Helds in an action by B. against the wife for forcible detainer, that the assignment of the mortgage to the husband was not fraudulent as to the wife or the mortgagor ; and that B had the legal title against the wife, and was entitled to judgment for possession.</p> <p>Parol evidence that an assignment of a mortgage was intended to be a discharge, is inadmissible, except for the purpose of proving fraud.</p>

<p>A testator devised one undivided half of his farm to trustees, for the support of his sen A., and also directed that a certain part of his dxvellinghouse should be kept solely for As use and benefit. He devised the other undivided half of his farm to B. on the following conditions : That B. should carry on the whole farm at the halves, and pay half the yearly income thereof to the trustees or guardian of A. for A’s sole use ; and should furnish A. with fuel, and also with a horse and chaiso as often as A*s trustees or guardian should think proper, and also attend to his person and apartments; and should, if A’s trustees or guardian should deem it advisable to remove him from said house and board him elsewhere, pay one half the income of the whole farm to A’s trustees or guardians, for A’s sole use and benefit. HM9 that the devise to B. did not restrain him from alienating, during the life of A., the estate so devised to him; that all said conditions might be performed by B*a alienee; and that B. could give a good and perfect title to said estate, by conveying the same subject to said conditions.</p>

<p>A foreign corporation, that has no goods, effects or credits, within this Commonwealth, cannot.be charged by the trustee process, although many of the members and officers of such corporation reside here, and its books and records are kept here.</p>

Debt on a bond for the liberty of the prison limits. The parties submitted the case to the court on the following facts : Wm. E. Hancock was committed to prison, October 3d 1839, on an execution in favor of the plaintiff, and the defendants gave the bond, on which this action is brought, with the condition prescribed by the Rev. Sts. c. 97, § 63.

A claim, made by the plaintiff on the defendants, was submitted to arbitrators, by a written agreement of the parties, in these terms : “ This claim is founded on a policy, dated March 4th 1839, whereby the Suffolk Insurance Company caused George P. Richardson, for whom it concerns, to be insured $1000 on freight and $2500 on property, on board brig Governor Brooks, at and from Montevideo to Havana.

<p>This was an action of assumpsit to recover $389TO, under an award made by William Wright and Josiah L. C. Amee, dated December 30th 1836.</p> <p>At the trial, before the chief justice, the plaintiff introduced a submission, signed and sealed by the plaintiff and defendant, and a former copartner, named Wright, dated February 27th 1834, by which they “agreed to submit their whole settlement, both as related to the firm and themselves respectively, and between themselves individually in their private accounts, to the determination of William Wright, Josiah L. C. Amee, and William B. Dorr ; the award of whom, or a major part of whom, should be final and binding, upon the parties.”</p> <p>The award, signed by Wright and Amee, was indorsed on the submission, and that part of it which respected the plaintiff and defendant only, was as follows : “ Boston, December 30, 1836. The undersigned, two of the referees named in the within instrument, having met the parties, and by their consent proceeded, in the absence of the other referee, to examine the claims and demands submitted, do, after a patient and careful examination of the books and papers of the partnership, and also their respective private accounts and demands against each other, and the proofs adduced by them in support of the same, award as follows : That Robert T. Alden pay to said Loring the sum of $389-10.”</p> <p>The plaintiff offered to show, that it was agreed between the parties that the two referees, who signed the award, should proceed without the third, who never had notice nor attended ; and for this purpose he called said referees as witnesses.</p> <p>William Wright testified that the parties agreed that he and Amee should be the referees, with power, in case of disagreement, to choose a third, and that William B. Dorr was agreed upon, to be brought in, if necessary : That the submission was executed at the first meeting of the referees and parties : That there were several meetings, and that the defendant was present at the first and second ; but whether be attended the other meetings, the witness did not certainly recollect, but believed he did not: That after the first meeting, and several adjournments, the matter subsided for some time ; and then the witness, at the plaintiff’s request, gave notice to the parties, and the award was made: That the defendant did not attend the last meeting: That the witness took effectual measures to have notice given to the parties of the meeting of the referees : That their first meeting was a preliminary one, and was held on the day when the submission was made ; and that the second was about a week afterwards : That all the books, papers and accounts were brought in, and all the evidence submitted, at the second meeting : That no witnesses were examined, and that the referees made up the accounts from the books : That there was a partnership book, and that each partner had a separate book, in which he charged himself with the money which he had : That nothing was done between the second meeting and the last, on account of the absence of the defendant, of which the other parties complained.</p> <p>J. L. C. Amee testified to the same facts which were staled by Wright, and also that he had a conversation with the defendant respecting the award, within six months after it was made, and respecting the principles upon which it wa° made ; and that the defendant understood what the award was . That the witness did not furnish the defendant with a copy of it, and that the original was left in the hands of Wright, the other referee.</p> <p>A nonsuit was entered, subject to the opinion of the whole court.</p>

<p>In adjusting the claims of the creditors of an insolvent bank whose estate and effects are put into the hands of receivers, under Rev. Sts. c. 44, those creditors, who have demanded payment of the bills of the bank and been refused, are not to be allowed twenty-four per cent, interest, under Rev. Sts. c. 36, § 29 j but they are to be allowed six per cent, interest from the time of such demand.</p> <p>In such adjustment, the claims of creditors to money deposited by them in the bank under an unlawful agreement that it should be paid at a future day certain, with interest, are to be allowed : Also, the claims of the holders of bills issued by the bank under an unlawful agreement that they should be kept from free circulation for a limited time, or not be returned to the bank for redemption, within a limited time.</p>

<p>Two writs of error. The first was brought to reverse a iudgment of the municipal court, rendered at May term 1825 ; and the second to reverse a judgment of the same court, rendered at May term 1836. The indictment, on which the first judgment was rendered, charged the defendant (the plaintiff in error) with breaking and entering a siiop, in the night time, with intent to steal, and stealing therein divers goods; and it also set forth that he had been previously convicted of two similar of-fences, at the March term 1818 o.f the same court, and had been sentenced therefor to solitary imprisonment and hard labor in the state prison. On this indictment, the plaintiff in error was tried and convicted, and was sentenced to three days’ solitary imprisonment, and five years’ hard labor in the state prison.</p> <p>The second judgment, which the plaintiff in error sought to reverse, was on an information for additional punishment. This information set forth the abovementioned conviction and sentence in 1825, the execution of that sentence, and the discharge of the prisoner, and his departure from the state prison on the 11th of May 1831 ; and it alleged that the prisoner, prior to that conviction and sentence, had been sentenced to hard labor, for a term of years, in the state prison, viz. at March term 1818, which sentence had been executed, and the prisoner thereupon been discharged on the 6th of May 1824. The information further alleged, that the prisoner was convicted, at the May term 1832, of larceny in a dwellinghouse, on the 15th of March 1832, and was sentenced therefor to one day’s solitary imprisonment, and four years’ hard labor in the state prison, and that he was then in said prison, in pursuance and execution of that sentence. The prayer of said information .was, that such additional punishment of the last mentioned offence might be awarded, as was by law provided in cases of convicts who had been twice before convicted and sentenced to a state prison, and been twice discharged therefrom. This information was found by a jury to be true, and an additional punishment was awarded, of one day’s solitary imprisonment, and seven years’ hard labor in the state prison.</p> <p>These cases were argued at the last March term.</p>