Volume 45 — Massachusetts Reports

<p>A contract, in a policy of insurance, to pay the loss on a certain day after proof there of, is not a contract to pay interest after that day if the loss be not then paid. Where underwriters do not contract to pay interest on a loss after the day on which, by their contract, the loss is payable, they are not chargeable with interest after that day, during the time a trustee process is pending against them, which is commenced by a creditor of the assured before that day, if they practise no delay, and are ready, at all times after the loss is payable, to pay it on being discharged from the trustee process 3 although they do not keep the amount of the loss constantly on deposit, but mingle it with their other funds, and use it in their business. AlU ttrf it seems, if they practise unreasonable delay in making their answers in ths trustee process, for the purpose of obtaining a longer use of the money.</p>

<p>This was an action of assumpsit, in which the plaintiffs declared generally for a balance of account for money paid for the defendants.</p> <p>At the time when the transactions took place out of which this suit arose, the plaintiffs were bankers in London, doing a heavy American business ; and three of the defendants, Fessenden, Thompson & Co. were merchants and partners in Boston, and John Skinner, the other defendant, a merchant in Charles-town. Fessenden, Thompson & Co. were defaulted, and the defence was made by Skinner.</p> <p>The facts, on which the parties submitted the case to the court, were these: In September 1836, S. Austin, jr., the plaintiffs’ agent in Boston, furnished the said Fessenden, Thompson & Co. and the said John Skinner, with a letter of credit, by which Messrs. W. & J. Thomas & Co. of St. Johns,. Newfoundland, were authorized to draw on the plaintiffs, for account of Fessenden, Thompson & Co. and J. Sldnner, to the amount of £1600. This credit was intended by the defendants to be used in the purchase of a cargo for the joint account of said Fessenden, Thompson & Co. and Skinner, and the firm of Lombard & Whitmore. Bills to the amount of £ 1350 were drawn, in October 1836, by said Thomas & Co., by virtue of said credit, upon the plaintiffs, and were accepted by them in November; were paid at maturity in January 1837; and were charged to the defendants, who were all duly notified, by letters of advice, of their acceptance.</p> <p>In February 1837, Lombard & Whitmore settled with Fes senden, Thompson & Co. for their interest in the debt created by these bills, and paid them their proportion, with the under standing that it should be assumed and paid by Fessenden, Thompson & Co. But no information thereof was given to the plaintiffs, who had no knowledge of Lombard & Whitmore’s interest in the voyage. At this time Fessenden, Thompson & Co. were indebted to Skinner in about $ 14,000; in part, for moneys deposited with them, to be drawn for as he might have occasion ; and in part, for proceeds of goods sold by them for his account.</p> <p>On the 8th of February 1837, which was immediately after the settlement with Lombard & Whitmore, Fessenden, Thompson & Co. purchased a bill of exchange on London for £ 1000, which they remitted to the plaintiffs. Prior to the time of this remittance of £ 1000, Skinner had several times urged Fessenden, Thompson & Co. to remit, and close the account in which he was interested; and they had agreed to do so ; and when they remitted the £ 1000, they informed Skinner that they had remitted it for that account; and to satisfy him that they had complied with his request, they told him what bill they had bought for the purpose, and showed him the letter written to the plaintiffs covering this remittance ; and at the time when the remittance was made by them, one of the firm informed Austin, the plaintiffs’ agent who gave the letter of credit, that they were then remitting to meet those bills ; but Austin did not inform the plaintiffs of this. The letter to the plaintiffs, which enclosed the remittance, is as follows :</p> <p>“ Boston, February 8th, 1837. Messrs. Geo. Wildes & Co. London. Gentlemen — We last had the pleasure, 17th December, enclosing bill on Paris for 10,000 francs, and informing you that we should ship you 68 bales mohair. We have since concluded not to do so, and now have the pleasure of enclosing John Gliddens’s bill on Baring, Brothers & Co., Liverpool, for £ 1000 sterling, indorsed by Means & Clark and by us, to your order, which please collect to our credit. Messrs. Grant, Balfour & Co., Genoa, and Messrs. Grant, Brothers, Trieste, will make you a further remittance for our account. Capt. Benj S. Tufts of brig Angola has remitted you from Pernambuco aoout £ 400 for our account. The remittances of £ 63. 3. 2. made you by Brothers Cramer, account J. Hall, J. Curtis and ourselves, should one thij-d be placed to our credit. The bills drawn by W. & J. Thomas & Co. for £ 1350 account John Skinner and ourselves, you will place to our debit. Respectfully, Fessenden, Thompson & Co.”</p> <p>On the 9th of February, the plaintiffs wrote to the defendants as follows :</p> <p>“London, February 9th, 1837. Mr. John Skinner, Messrs. Fessenden, Thompson & Co. Boston. Gentlemen — Herewith you have your account current made up with interest to the 31st December last, terminating in a balance of £ 1362. 12. 2. in our favor, to which make your books conform, if you find same free of error, and advise us accordingly. We are very truly your obedient servants. Geo. Wildes & Co.”</p> <p>The letter of Fessenden, Thompson & Co. of February 8th, was received by the plaintiffs' on the 16th of March 1837, and was answered by them, on the 18th of March, as follows :</p> <p>“London, 18th March, 1837. Messrs. Fessenden, Thompson & Co. Boston. Gentlemen — We have received your favor of the 8th ultimo, and noted its contents. You remit us a bill for £1000 on Messrs. Baring, Brothers St Co., and Messrs. H. Foster & Co. remit us, by their letter of 18th January, a bill of £308. 0. 6. on ourselves at sixty days’ sight, due on 18th May, which will be collected to the credit of your ac count. We are very truly your obedient servants. Geo, Wildes & Co.”</p> <p>On the 17th April 1837, Fessenden, Thompson & Co. failed in business, being largely indebted to Skinner, and have since continued insolvent. The letter of the plaintiffs, of Marc! 18th, was received by Fessenden, Thompson & Co. on or about the 22d of April 1837, four or five days after their failure.</p> <p>At the time when the bills, the amount of which js now demanded in this suit, became due, Fessenden, Thompson & Co were indebted to the plaintiffs in a balance of about £ 2200, on account of other transactions, (to which Skinner was no party,) exclusive of these bills ; but the plaintiffs held a large amount of property belonging to them, the proceeds of which they were entitled to and did apply towards the payment of this balance, as far as it would go. The bill for £ 1000 was received and collected, and passed to the credit of Fessenden, Thompson & Co. Of the other funds mentioned in their letter of February 8th, the sum of £ 120 9 11 was afterwards remitted by Fessenden, Thompson & Co. to the plaintiffs, who also received the £308 0 6 remitted by H. Foster & Co., which sums were credited to Fessenden, Thompson & Co., as also £300 from New York. These remittances, with the avails of property in their hands, reduced the balance against Fessenden, Thompson & Co., on the 11th of June 1837, (when the accounts were made up,) to £421 6 9, leaving the balance, due on the bills accepted for accounts of J. Skinner, Fessenden, Thompson & Co., of £ 1579 4 10.</p> <p>The plaintiffs suspended payment on the 3d of June 1837, and went into liquidation. They had no further correspondence with the defendants, or either of them, on the subject of this suit, until August 1837, when they forwarded their account for payment, never having debited the said bills, on their books, to Fessenden, Thompson & Co., according to the request made by the latter in their letter of February 8th.</p>

<p>This was an action of covenant broken, founded on the following obligation : “ Whereas the Washington Bank has been in the habit of discounting, from time to time, notes and acceptances offered for discount by William D. Ticknor ; and whereas the said bank may not always be satisfied with the paper so offered for discount, and in consequence of which the said William D. Ticknor may often be disappointed in not obtaining such discounts as may be required in his business : Now there fore, I Samuel A. Shurtleff of Boston, Physician, in consideration of the premises and of one dollar to me paid by the Washington Bank, the receipt whereof is hereby acknowledged, do hereby guaranty to the President, Directors and Company of said Washington Bank, the full payment of all such notes, bills of exchange, acceptances, or paper evidences of debt, which may, from time to time, within one year from the date of these premises, be offered by said Wm. D. Ticknor to said bank and actually discounted by said corporation; provided, however, that in no event shall I be answerable for any sum exceeding three thousand dollars in the whole; it being also understood, that this is to be considered a standing guaranty to said bank, for the time and for the sum aforesaid, notwithstanding said Wm. D. Ticknor may have, from time to time, paid or re ceived notes and acceptances or other paper evidences of debt discounted as aforesaid. “ In witness whereof, I have hereunto set my hand and seal the first day of December, in the year of our Lord one thousand eight hundred and thirty four. S. A. Shurtleff. (Seal.)”</p> <p>The case was submitted to the court on the following agreed statement of facts : After the defendant executed the foregoing obligation, the plaintiffs, from time to time, discounted paper for William D. Ticknor therein mentioned, to a large amount. Said Ticknor afterwards failed; and at the time of his failure was indebted to the plaintiffs as indorser of ten notes, amounting in all, without interest, to $3605‘37, which were discounted by the plaintiffs for him during the time covered by the defendant’s said obligation. The several parties to said notes were duly notified, when the same became due and payable, and the defendant was notified of the default of said Ticknor, as each of said notes became due. All said notes are now in the possession of the plaintiffs, unpaid.</p> <p>No tender has ever been made by the defendant to the plaintiffs of any sum as the amount due on his said obligation ; but the defendant has been ready and willing and has offered to pay the sum of $ 3000, on the condition that the plaintiffs woulu deliver up to him the same amount of the said notes. This the plaintiffs have refused to do ; and they claim of the defendant the amount of said obligation, with interest from the time of the notice of Ticknor’s defaults. They also claim the right to retain all the said notes, for the purpose of securing to themseLes the balance due thereon from Ticknor, over and above the said $ 3000 ; said notes being of some value.</p> <p>The plaintiffs have always been ready to deliver all said notes to the defendant, on his paying them the amount thereof; but the defendant has declined paying the full amount.</p> <p>The defendant will receive, on the assignment of said Tick-nor, about 20 per cent, of the $ 3000.</p> <p>It was agreed by the parties, that if the court should be of opinion that the defendant, on paying the sum found due on his said obligation, is entitled in equity to $ 3000 in amount of said notes, or any other portion of them, such notes shall be delivered to him by the plaintiffs ; but that if the court should be of opinion that the plaintiffs are entitled to hold all the said notes as security for the balance due to them from said Ticknor, over and above the $ 3000, then said notes shall be so retained by them.</p> <p>Judgment to he rendered for the plaintiffs, for such amount of principal and interest, as is legally and equitably due on the defendant’s said obligation.</p>

<p>Assumpsit on the money counts, to recover several sums paid to the defendants by the plaintiffs from the year. 1829 to the year 1835 inclusive, for the support of State paupers, on the allegation, that more money was paid to, and received by, the defendants, in each of those years, than was due for such support.</p> <p>The trial was before Putnam, J. who reported the case as follows : The defendants admitted that the money, which the plaintiffs sought to recover back, had been paid to them, and admitting, pro forma, that the plaintiffs could make out a prima facie case to recover it back, they offered in evidence a report and supplemental report of Joseph Willard, Esq., an auditor appointed by this court to audit the accounts of the defendants in regard to the support of the paupers by the defendants ; and they maintained that, by said reports, it appeared that the expense of supporting the State paupers by the defendants had, in each year, amounted to a larger sum than the value of said paupers labor, and the moneys so paid by the Commonwealth.</p> <p>The Attorney General objected to the admission of these reports. 1st. Because the subject to be inquired about was not one to which the power of the court to appoint an auditor ex tended, inasmuch as the only matter of account was a stated and settled account kept by the defendants in the books of their agents, and no longer open to audit or change. And for the purpose of sustaining this objection, he exhibited the books of the alms-house, the records of the town appointing committees to examine the accounts, the reports of said committees, and the votes of the town, in legal town meeting, accepting said reports. But, for the purposes of the trial, this objection was overruled.</p> <p>2d. The Attorney General objected to the report, that if it'was admissible at all, yet that the value of the paupers’ labor had been settled by the defendants and agreed to, and could not be the subject of revision by the auditor. And he further objected to all that part of the reports in which the auditor had recited the substance and purport of the evidence of witnesses before him. Both which objections, for the purposes of the trial, were overruled, and the report and supplemental report were admitted.</p> <p>The Attorney General moved the court to instruct the jury, that in the stating of the accounts by the auditor, the charge for. rent of the alms-house, amounting in each year to $420, and the charge of interest on the permanent stock, $ 108, (total, $ 528,) were not admissible in point of law : That the auditor, in stating his opinion of the value of the paupers’ labor, had exceeded his authority; and inasmuch as the price had been fixed by the town, the price so fixed was the proper price to be taken into the account, unless, by evidence other than the auditor’s report, a different value should be determined on by the jury. He further asked the court- to instruct the jury, that all the profits, derived to the town from any manner of work on which the town employed said paupers, was to be taken as a diminution of the charge of supporting them; and as it appeared, in the auditor’s report, that no credit had been given for such profit, the jury should correct the report in that particular. He further moved the court to instruct the jury, that in point of law all the charges for land hire, amounting, in the year ending in April 1831, to $ 168-98, and all the charges for the like purpose in the other years, should be stricken out, or that credit should be given for the products of the land so hired ; it appearing by the auditor’s report, as the plaintiffs contended, that he had not credited the products of the land. He further moved the court to instruct the jury, that if it appeared to them that the price of the Brighton Ledge (so called) was charged upon and paid out of the funds of the alms-house, the proceeds of the said ledge should be credited in account as part of the' funds for which the defendants are accountable. He further moved the court to instruct the jury, that the men who labored on the road, as described in the auditor’s report, are not chargeable as paupers, and that the plaintiffs are entitled to recover back all the money charged in the defendants’ account for the support of said men.</p> <p>But the judge, intending to reserve all questions upon these motions for the consideration of the whole court, overruled the same, and refused to give the instructions prayed for; but, on the subject of the paupers’ labor, he directed the jury, that the auditor’s report was to be taken as satisfactory evidence, unless impeached ; that if the other evidence in the case did, in their judgment, impeach it, they should correct that item; but if otherwise, they might return a general verdict for the defendants.</p> <p>A verdict was returned for the defendants ; and the Attorney General moved for a new trial, first, for error in the rulings and instructions of the judge ; and secondly, because the verdict was against the weight of the evidence.</p> <p>It appeared from the papers in the case, and from the auditor’s reports, that State paupers and town paupers were supported together in the defendants’ alms-house establishment; that the real estate connected with that establishment cost $ 7000; that the defendants bought two stone ledges, one of them in Brighton, for $ 50 each, for which sum they were entitled to take away as much stone as they pleased, for i certain time, and that about $ 2000 worth was taken from each ledge and sold, which “proved to be a good speculation” ; that the principal part of the work on the ledge was done by State pau pers ; that the defendants also hired thirty or thirty-five acres of land, on which work was done by the inmates of the alms-house, in raising vegetables, &c. which were sold.</p> <p>From the accounts of the defendants’ agents concerning the support of paupers, which had been examined and reported upon by a committee, &c. (as mentioned in the judge’s report, ante, p. 36,) it appeared, that for five years, ending April 19th 1833, “the profits of the alms-house, in addition to supporting the town poor,” was estimated at $9817-84. In these accounts, however, the paupers’ labor on the roads, &c. was estimated at 50 cents per day, and no interest was computed on the cost of the real estate attached to the almshouse, nor on the amount of stock and other personal property. Said committee reported, that the “ pecuniary advantages of the institution had been much overrated by the usual mode of adjusting the accounts,” and that by charging interest on the abovementioned property, and allowing 30 cents per day (which the committee deemed the full value) for pauper’s labor, the profits of the alms-house establishment for said five years would be only $2538-89.</p> <p>The auditor reported, that 25 cents per day was as much as the paupers’ labor was worth; and he stated an account, from which (as stated in the report of the judge, ante, p. 35,) it appeared, that the expense incurred by the defendants in the support of State paupers exceeded, yearly, the value of their labor and the money received from the Commonwealth. In stating tills account, the auditor charged the defendants with the earnings (i. e. the value of the labor) of the State paupers, but did not charge them with any profits, real or supposed, which they derived, or were supposed to derive, from said paupers’ labor.</p> <p>This case was argued and decided at a former term.</p>

<p>On the trial of a person indicted for cheating by false pretences, by representing that a bill of an insolvent bank was worth its nominal value, and passing it at that value, it is not necessary, in order to prove that the bill was worthless, to give evidence that none of the stockholders of the bank are solvent, or that they have already paid the amount of their stock.</p> <p>Evidence, in such case, of the depreciated value of the bills of such bank, in the market, connected with evidence that the bank has refused to pay its bills, and that they are not passable as current bills, is competent to prove that the bill, which was passed by the defendant, was not worth its nominal value, and also to prove his fraudulent intent in passing it.</p> <p>He who receives a bill of a broken bank, not knowing it to be such, and on a representation made to him that it is worth its nominal amount, does not take it at his own risk.</p> <p>The question whether the passing of a bill of a broken bank in payment for an article purchased, and the receiving of good money in exchange, without any words concerning the bill, amount to a representation that the bill is worth what it purports to be, depends upon all the evidence of the attendant circumstances.</p> <p>To prove that a defendant passed a worthless bank bill, with knowledge that it was such, evidence is admissible of his having in possession, and of his having passed, other similar bills.</p> <p>The passing of a bill of a broken bank, at its nominal value, on a representation that it is of that value, by one who knows that it is nearly, if not quite worthless, is a punishable fraud, although the bill may be of some value.</p> <p>An indictment alleged that the defendant falsely and knowingly pretended and represented to P. that a certain paper writing, in the form of a bank bill, was a good negotiable note and bank bill, and security for the payment of five dollars; that P., believing such pretence and representation, was thereby induced to deliver, and did deliver, to the defendant, certain goods, and certain good bank bills and current coins in exchange for said paper writing 5 and that the defendant thereupon delivered said paper writing to P. as a good negotiable note and bank bill, and security for five dollars 5 whereas said paper writing was not a good negotiable note and bank bill, and security for five dollars, as the defendant then well knew, &c. Held, that the indictment did not describe a genuine note of a worthless bank, but a counterfeit note of a real bank, or a note purporting to be of some bank that had no existence; and therefore that the indictment was not proved by evidence that the paper writing was a bill of a bank that had failed and ceased to pay its bills.</p>

<p>Where a master uses due diligence in the selection of competent and trusty servants, and furnishes them with suitable means to perform the service in which he employs them, he is not answerable to one of them, for an injury received by him in consequence of the carelessness of another while both are engaged in the same service.</p> <p>A rail road company employed A., who was careful and trusty in his general character, to tend the switches on their road; and after he had been long in their service, they employed B., to run the passenger train of cars on the road $ B. knowing the employment and character of A. Held, that the company were not answerable to B. for an injury received by him, while running the cars, in consequence of the carelessness of A. in the management of the switches.</p>

<p>Bill in equity, brought by the executor of the will of Margaret Tucker, to obtain the direction of the court in the execution of his duties, in certain particulars, under the provisions of the will. Numerous legatees of the said Margaret were made parties to the bill, as defendants, and the' questions, which were argued and decided at the present term, arose on the following facts agreed :</p> <p>On the 8th of December 1831, Margaret Tucker executea her last will, by which, after making divers bequests of money, ’ &c. in trust and otherwise, to various persons and institutions, she gave to the city of Boston all the residue of her property, of every description, on certain conditions, towards the support of a high school. The will contained the following clause :</p> <p>“ And whereas I have derived most of my property from my father, and hold it by virtue of his will, whereby the whole of his estate is charged with the payment of certain annuities, and, among others, with the payment of one third of the income of his whole estate to my mother, during her natural life; and whereas his estate has not been divided or distributed among his children who were his residuary legatees, and my share thereof may continue to be so mixed with the shares of the other legatees under his will, and so incumbered with the payment of tha legacies and annuities, with which the estate of my father is charged, as to render it impracticable or inexpedient, at the time of my decease, for my interest therein to be disposed of, or so far reduced to cash, as to enable my executor, out of the proceeds thereof, to pay the legacies herein given ; if so, I authorize and empower my executor, from time to time to receive from the legal representative of my father that portion of - the income of his estate, which belongs to me, or which he, my executor, as my legal representative, will be entitled to claim, and to allow the estate of my father to remain entire, and in the hands of his legal representatives, till the incumbrances or lien thereon, as aforesaid, shall be removed ; or for such length of time, as he, my executor, shall think proper and expedient. And in.the mean" time, I authorize and order my executor to retain out of any funds, which he may have in his hands, belonging to my estate, interest on the sum of six thousand dollars, which he is requested to hold in trust for Charles Cole and George W. Cole,” (two of the legatees mentioned in the will), “ at the rate of five per centum per annum, and to pay over interest annually, at the same rate, on all the other money legacies hereby bequeathed, except that no interest is to be paid to the city of Boston aforesaid. In those cases in which the income on a certain sum is given ” (in the will) “ to one person during life, and the principal, upon his or her decease, is given to others, the interest, at the rate aforesaid, is to be paid to the first, instead of the income, if the money is not invested by my executor, as trustee, so long as such person shall live, and then to those entitled to the remainder, if the principal shall not be paid. Interest, ¿t the rate aforesaid, is to commence immediately after my decease, on all the money legacies hereby be-. qusathed, except that no interest is to be paid to said city, as aforesaid.”</p> <p>On the 8th of November 1832, said Margaret executed an instrument which she therein declared to be a codicil to her said will, to which it was annexed, and ordered to be taken and considered as and- for part of her said will, which will she ratified and confirmed by said codicil, in all respects, except so far as it should be revoked or altered by said codicil—which was as follows :</p> <p>“ To the several legacies in my said will given and bequeathed, I add the following, for the benefit of the children of my sister Paulina ; viz. I give and bequeath to Samuel E. Sewall of Boston, Esq. the sum of fifteen thousand dollars, upon trust nevertheless, and not otherwise, and for the purposes hereinafter declared, and no other; that is to say, that he invest said sum of money in such property, and in such manner, as he may think proper, and pay the interest or income thereof, (after de ducting all expenses and reasonable charges) to my sister Pau lina Nash, wife of Joshua Nash, that she may employ the same for the use of her children, in any way she shall think proper ; and upon the death of the said Paulina, to pay over the principal to her child, if she then hath one and only one living ; or if she have more than one living, to pay over, divide and distribute said principal among her children living at the time of her death, equally, share and share alike.” — “ I declare it to be my will and meaning and intention, that said sum of fifteen thousand dollars shall be paid to said trustee, for the purposes aforesaid, out of the proceeds of any of my property, before any sum of money is paid, or any property delivered, to the city of Boston, under or by reason of the residuary clause in my said will,” &c.</p> <p>The plaintiff was appointed executor of said will, and the will and codicil were duly admitted to probate on the 31st of December 1832, and the plaintiff then took upon himself the execution thereof.</p> <p>The amount of pecuniary legacies due under the said will and codicil, adding interest thereon from the death of said Margaret, at five per cent, a year,» to November 24th 1840, is $ 85,820, and exceeds the amount of the assets, which remain in the executor’s hands, after payment of the specific legacies.</p> <p>Two questions only were raised at the present term : First, whether the legacy given by the codicil should be postponed to. the pecuniary legacies given by the original will : Second, whether interest should be computed on the pecuniary legacies, and, if so, at what rate, and from what time.</p>

<p>Assumpsit on a promissory note for $ 500, made by the defendant, dated December 28th 1835, payable in six months, at any bank in the city of New York, to Nestor Houghton or order, and by him indorsed in blank.</p> <p>There was evidence, at the trial before Wilde. J. of the following facts : The note in suit was given by the defendant to his brother George W. Holland, without consideration, for the purpose of its being delivered by him to Houghton, the payee, as collateral security for advances he might make to said" G. W. Holland. Houghton transferred the note to Reuben Vose when it was overdue ; and when he thus transferred it, the dealings between him and G. W. Holland had ceased, and he owed said Holland a balance of accounts.</p> <p>In April 1837, the late firm of Cobb & Mackay (of which the plaintiff was a member) had a demand of about $ 1700 against the firm of Vose, Hampstead & June, of New York, and also a larger demand against said Reuben Vose, one of the firm. About the middle of that month, Henry Cobb, acting for the firm of Cobb & Mackay, agreed with Vose, at New York, to receive fifty per cent, in cash, in full of their said demand against Vose, Hampstead & June. After this agreement was made, Vose produced the note in suit, and another note for $ 510, signed by the defendant, payable to said Houghton, and by him indorsed in blank, and then overdue, which he declared to be as good as cash, and which would be paid on presentation to the defendant in Boston, and proposed that Cobb & Mackay should take these notes in payment of the fifty per cent, afore said, and should give credit to Vose, for the excess, on their demand against him. It was thereupon agreed between Cobb & Vose, that Cobb should have twenty days to return to Boston, to ascertain whether said notes would be paid, and decide wheth er he would take them on the aforesaid terms. About the 19th of said April, Cobb called on the defendant in Boston, presented the notes to him, and asked him if he would pay them. The defendant said he should be obliged to pay them, but had not expected to be called upon ; that they were given to his brother for his accommodation. Cobb then told the defendant that he had taken the notes as a dividend, as money, with an assurance that they would be paid on presentation ; whereupon the defendant said it would be inconvenient to pay them, as he must sell stock for that purpose. On Cobb’s again asking if he would pay them, the defendant said he would, if he could have time, and that he would call on Cobb and inform him when he would pay. Cobb then left the defendant, but returned in a few minutes, and said he wished to be very careful, “ as it was a failed concern,” and he desired to know explicitly, if there was to be any defence, or unreasonble delay of payment. The defendant replied, that he would pay the notes, and would call and let Cobb & Mackay know how soon he would pay. On the next day, he told them that he would pay, if he could have three months, and should contest the notes if he could not have that time. They replied, that they could not or ought not to wait so long, as they had taken the notes for money.</p> <p>On the 21st of said April, Cobb & Mackay wrote to Vose, declining to take the notes on the terms upon which he had offered them, but proposed to take them in full of their demand on Vose, Hampstead & June ; which proposition Vose accepted, by letter of the next day.</p> <p>The judge instructed the jury “ that as this was an accommo dation note, and as it appeared that the state of accounts between G. W. Holland & Houghton was such, that Houghton had no right to recover on the note, and could communicate none to Vose, nor Vose to the plaintiff, it must be considered as a note negotiated after it was due ; and that the plaintiff took it subject to the same defence that might have been made if Houghton had sued it: That any person, taking such a note, is bound to inquire into the situation of it, or he takes it at his peril; and that of this, Cobb & Mackay were well aware, as their conduct showed: That the question whether the informa tion, given to them by the defendant, bound him, depended on the question whether he misrepresented or withheld facts, or was guilty of any negligence in not inquiring into the facts.”</p> <p>The jury were then directed to inquire whether the defendant disclosed all he knew : And they were instructed, in regard to the defendant’s not inquiring, that unless there was a duty on the defendant to inquire further, he was not liable ; that the law did not impose that duty on him ; and that he was not chargeable with negligence in not inquiring : That as the defendant told the plaintiff it was an accommodation note, and informed him for whose accommodation it was given, the plaintiff could make further inquiry as well as the defendant : That if the defendant promised to pay the notes, without knowledge that his brother had paid the sum which they were given to secure, and supposing himself liable,- that promise was void for want of consideration : But that the defendant was chargeable if he misrepresented or concealed any fact.</p> <p>The jury found a verdict for the defendant, and the plaintiff moved that it should be set aside, and a new trial be granted, for misdirection to the jury.</p>

<p>The repeal of the law, which directed that the surplus proceeds of the labor of convicts in houses of correction should be paid to them on their discharge, took away the authority to pay the proceeds of labor done before the repeal, to those who were not discharged until after the repeal.</p>

<p>Indebitatus assumpsit for money paid, &c. The parties submitted the case to the court on a statement of facts, in substance as follows : In 1833, the plaintiffs indorsed certain promissory notes and bills of exchange for the accommodation of the defendant, to the amount of $17,500. Before any of those notes or bills, came to maturity, to wit, on the 23d of January 1834, the defendant having failed, an indenture was executed between him, and certain trustees, and his creditors, in which it was recited that the defendant was “ indebted to the parties of the third part, in divers sums of money ; that some of the persons, parties of the third part, and liable, as indorsers or sureties, to pay, on account of the defendant, several other large sums of money, which debts and liabilities the defendant was unable fully to pay as the same should become due ; and that it was proposed and agreed that he should • assign his property for "the benefit of his creditors,” in consideration of the premises and of a nominal pecuniary consideration ; and the defendant thereby assigned all his property to said trustees, in trust; first, to sell the property, collect the debts, and from the proceeds retain sufficient to pay the expenses of executing the trust; and secondly, to pay the several persons and corporations thereinafter named, (they becoming parties thereto,) the full amounts set against their names respectively, and apply the said funds to indemnify them against the liabilities thereinafter named, and to pay them the balances of account, which might be due, or become due, by reason of negotiations and transactions between them, or any of them, and the defendant. First: The Commercial Bank to be paid in full the balance due them for loans made to the defendant, and negotiations with him Second: The plaintiffs to be paid and indemnified for their in dorsement of various notes of hand for the defendant, and assuming various liabilities for him. Other creditors were then named, most of whose demands were specified, and some of whom were to be indemnified against liabilities. Then followed this clause : “ It being agreed and understood, that the trustees shall pay the Commercial Bank and the said several persons, (they becoming parties hereto,) the full amount of the sums set against their names above, with interest, as is abovementioned, and fully indemnify the other persons abovenamed against all losses, payments and damages, from having assumed the liabilities aforesaid for the said Parker, if sufficient funds shall be received from said sales and collections, and remain for that purpose : Otherwise, the bank and the said several persons, parties hereto, to be paid ratably and in proportion to their respective demands against, and liabilities for, the said Parker.”</p> <p>Provision was then made, thirdly, that the residue should be paid ratably among the other persons and corporations that might become parties to the indenture, and the surplus, if any, to the said Parker. A schedule was annexed to the indenture, and declared to be a part thereof, “ showing the amount of the demands of the creditors of William Parker, party of the first part, against him, and the liabilities for him, which are thereby preferred.” In this schedule, the notes and bills of exchange indorsed by the plaintiffs were mentioned and correctly described— except a note for $ 1000, dated October 18th 1833, and payable April 21st 1834, which was described, in said schedule, as payable May 21st 1834.</p> <p>The indenture contained a clause of release, in these terms : “ And the several persons and corporations, parties hereto of the third part, each for himself and his respective heirs, executors, administrators, copartners and assigns, in consideration of the foregoing conveyance and covenants, do hereby affirm and approve of the foregoing assignment to said parties of the second part, and of the terms and conditions thereof; and do hereby covenant with said Parker, his executors and administra tors, that they will severally accept the said assignment and the proceeds, to be disposed of in the manner hereinbefore provided ; and they, the said corporations, and the several persons, parties hereto of the third part, hereby severally release and forever discharge all their several and respective debts, dues, claims and demands against the said William Parker.”</p> <p>At the time of the making of said indenture, the Commercial Bank were the holders of the notes and bills which were indorsed, as abovementioned, by the plaintiffs for the defendant, to the amount of $ 9900, one of which, for $ 1200, was de li’vered up to the plaintiffs, by the bank, soon after the indenture was made, on payment of that sum ; and it is now held by the plaintiffs. Upon the other notes and bills, the plaintiffs paid, as indorsers, fifty per cent, on the principal and interest, (being $ 4529-26,) under an agreement that the bank should make no further claim upon them ; and that if the bank should receive a dividend from the effects of Parker, or from other parties, more than fifty per cent., the excess should be to the use of the plaintiffs.</p> <p>At the time when the indenture was made, other banks or persons, not parties thereto, held notes or bills of exchange indorsed by the plaintiffs for Parker, as aforesaid, amounting to the further sum of about $ 7500, which have been delivered up to the plaintiffs, by the respective holders, on payment thereof; and they are now held by the plaintiffs.</p> <p>The plaintiffs, on the 11th of December 1835, received from the assignees, under the abovementioned indenture, a dividend of twenty per cent, on the sum of $ 14,193-63, upon the notes and bills aforesaid, held by otheis than the Commercial Bank: And said bank, pursuant to the agreement made with the plaintiffs, received from said assignees a dividend of twenty per cent upon the notes and bills held by the bank. No other dividend has ever been made.</p> <p>All the abovementioned papers were made part of the case.</p> <p>The plaintiffs seek to recover, in this action, the amount which they have paid to exonerate themselves from their liabilities, including costs, interest, &c. deducting the amount they have received. Defendant to be defaulted, if the plaintiffs are entitled to recover the amount paid by them to the Commercial Bank, and the amount paid to others, or either of them : Otherwise, the plaintiffs to become nonsuit.</p>

<p>B. assigned all his property in trust for the payment of his debts, and the securing of his indorsers whose liabilities for him were set forth in a schedule annexed to the deed of assignment: The indorsers of his notes and the holders thereof, with other creditors, accepted the assigned property in full payment and discharge of all claims which they then had, or thereafter might have, on account of all demands, actions, causes of action and moneys mentioned in said schedule > and covenanted not to sue or molest B. on accountfof the same. Held, that the terms of the instrument were sufficient to release B. from all liability to his indorsers. Held alsot that the indorsers of B.’s notes were not released by the holders, whether the notes, at the time of the execution of the release, were outstanding in the hands of parties who did not join in executing it, or were then in the hands of indorsees who did execute it.</p>

This was a bill in equity, of which the following is an abstract : That by an' indenture, dated February 8th 1834, by and between J. P. Flint, J. C. Flint and S. G. Hill, partners, of the first part, the plaintiffs, of the second part, and certain creditors of said Flints & Hill, of the third part, said Flints & Hill conveyed all their property and effects to the plaintiffs, and among other things a certain brig, called the Charles, and a certain barque, called the Leopard,…

<p>This was an indictment against "the defendants, (seven in number,) for a conspiracy. The first count alleged that the defendants, together with divers other persons unknown to the grand jurors, “ on the first Monday of September 1840, at Boston, being workmen and journeymen in the art and manual occupation of boot-makers, unlawfully, perniciously and deceitfully designing and intending to continue, keep up, form, and unite themselves into an unlawful club, society and combination, and make unlawful by-laws, rules and orders among themselves, and thereby govern themselves and other workmen in said art, and unlawfully and unjustly to extort great sums of money by means thereof, did unlawfully assemble and meet together, and, being so assembled, did then and there unjustly and corruptly combine, confederate and agree together, that none of them should thereafter, and that none of them would, work for any master or person whatsoever, in the said art, mystery or occupation, who should employ any workman or journeyman, or other person, in the said art, who was not a member of said club, society or combination, after notice given him to discharge such workman from the employ of such master ; to the great damage and oppression, not only of their said masters employing them in said art and occupation, but also of divers other workmen and journeymen in the said art, mystery and occupation ; to the evil example of all others in like case offending, and against the peace and dignity of the Commonwealth.”</p> <p>The second count charged that the defendants, and others unknown, at the time and place mentioned in the first count, “ did unlawfully assemble, meet, conspire, confederate and agree together, not to work for any master or person who should employ any workman not being a member of a club, society or combination, called the Boston Journeymen Bootmakers’ So ciety in Boston, in Massachusetts, or who should break any of their by-laws, unless such workman should pay to said club and society such sum as should be agreed upon as a penalty for the breach of such unlawful rules, orders and by-laws; and by means of said conspiracy, they did compel one Isaac B. Wait, a master cordwainer in said Boston, to turn out of his employ one Jeremiah Horne, a journeyman boot-maker, because said Horne would not pay a sum of money to said society for an alleged penalty of some of said unjust rules, orders and by-laws.”</p> <p>The third count averred that the defendants and others unknown, “ wickedly and unjustly intending unlawfully, and by indirect means, to impoverish one Jeremiah Horne, a journeyman boot-maker, and hinder him from following Ins trade, did ” (at the time and place mentioned in the former counts) “ unlawfully conspire, combine, confederate and agree together, by wrongful and indirect means to impoverish said Horne, and to deprive and hinder him from following his said art and trade of ajourneymán boot-maker, and from getting his livelihood and support thereby ; and in pursuance of said conspiracy, they did wrongfully, unlawfully and indirectly .prevent him, the said Horne, from following his said art, occupation, trade and bust ness, and did greatly impoverish him.”</p> <p>In the fourth count it was alleged that the defendants, (at the time and place before • mentioned) “ unjustly intending to injure and impoverish one Jeremiah Horne, and to deprive him of work and employment, and to prevent his earning a livelihood and support by following his trade of a journeyman boot-maker, did unlawfully conspire, combine, confederate and agree together, by indirect means wrongfully to prejudice the said Horne and prevent him from exercising his trade as a journeyman boot-maker, and impoverish him.”</p> <p>The fifth count set forth, that the defendants, at Boston, on the first Monday of November 1839, “ unlawfully, designedly to prejudice and impoverish one Isaac B. Wait, one Elias P. Blanchard, one David Howard, and divers other persons, whose names to the jurors are not known, all being master cordwainers and boot-makers in said Boston, employing journeymen boot makers, did unlawfully, wrongfully and corruptly conspire, com bine, confederate and agree together, by indirect means unjustly to prejudice and impoverish said Wait, Blanchard, Howard, and said other master cordwainers, whose names are unknown as aforesaid, and to prevent and hinder them from employing any journeymen boot-makers, who would not, after being notified, become members of a certain club, society or combination, called the Boston Journeymen Bootmakers’ Society in Boston, Massachusetts, or who should break or violate any of the rules, orders or by-laws of said society, or refuse or neglect to pay any sum of money demanded from them, by said society, as a penalty for such breach of said by-laws.”</p> <p>The defendants were found guilty, at the October term, 1840, of the municipal court, and thereupon several exceptions were alleged by them to the ruling of the judge at the trial. The only exception, which was considered in this court, was this : “ The defendants’ counsel contended that the indictment did not set forth any agreement to do a criminal act, or to do any lawful act by criminal means ; and that the agreements, therem set forth, did not constitute a conspiracy indictable bv anv law of this Commonwealth; and they moved the court so to instruct the jury: But the judge refused so to do, and instructed the jury that the indictment against the defendants did, in his opinion, describe a confederacy among the defendants to do an unlawful act, and to effect the same by unlawful means : That the society, organized and associated for the purpose described in the indictment, was an unlawful conspiracy, against the laws of this Commonwealth; and that if the jury believed, from the evidence in the case, that the defendants, or any of them, had engaged in such confederacy, they were bound to find such of them guilty.”</p> <p>A printed copy of the constitution of the Boston Journeymen Bootmakers’ Society was given in evidence against the defendants, at the trial; and it was agreed that the same might be referred to by the counsel, in the argument, and by the com t, in considering the exceptions.</p> <p>This case was argued, at the last March term, on all the exceptions alleged at the trial; but the argument on those points only, which were decided by the court, is here inserted.</p>

Assumpsit on the money counts, to recover of the sheriff of Suffolk for an alleged default of his deputy, Charles D. Coolidge. This action, and two others brought by James Bartlett and John T. Bartlett against the same defendant, for a default of the same deputy, (post. 149) were severally toed at November term 1840.

<p><n officer does not incur the penalty of five times the lawful interest, imposed by Rev. Sts. c. 97, § 73, for unreasonably neglecting to pay money collected by him on execution, by retaining the money during the time that the claims of different attaching creditors, or of attaching creditors and the assignees of the judgment debt or under St. 1838, c. 163, remain undetermined.</p>

This was an action of trespass upon the case for a deceit, charging that on a sale to the plaintiff of one undivided half of the stock and property of a woollen factory, which the plaintiff and defendant had owned and carried on in common, a schedule then exhibited by the defendant was false, but was represented by him to be true and correct; whereupon the plaintiff purchased of the defendant the said undivided half, by a bill of sale with such schedule annexed, without…

This was a bill in equity, brought by the American Bank, the Atlantic Bank and the City Bank, in which relief was sought against the defendants on the stipulations and covenants contained in an indenture dated December 16th 1829.

<p>Assumpsit to recover expenses incurred by the plaintiffs m support of John B. Derby, a pauper. The only question in the case, viz. whether said Derby’s legal settlement was in Dedham, was submitted to the court on the following facts agreed :</p> <p>“ About the year 1814, said Derby went to reside in Dedham, being then more than 21 years of age, and a citizen of this State, and there dwelt and had his home, for six years next ensuing ; and there was set to him, in the valuation of estates, for six years, including the year 1815 and five succeeding years, as personal property, five hundred dollars ; and he was -taxed therefor accordingly, for the said six years. In the valuation, there was no designation of any items or articles of personal property, nor any schedule thereof, by which the kind or character of said personal property could be ascertained.</p> <p>“ Said Derby also occupied an office in Dedham, and was supposed to be the owner of it, for several years, and the same was set to him as real estate, in the valuation, and he was taxed for it, as follows ; to wit, in the years 1817 and 1818, at two hundred dollars ; in 1819, one hundred and seventy-five dollars and in 1820, one hundred and seventy dollars. No other real estate was set to him, in the valuation, during the said six years.”</p> <p>It was agreed by the parties, that if said Derby, on the foregoing facts, acquired a legal settlement in the town of Dedham, judgment should be rendered for the plaintiffs; otherwise, for the defendants.</p>

Indebitatus assumpsit for money had and received. The case was submitted to the court on the following statement of facts: “ The plaintiffs are a body corporate in this Commonwealth, chartered by St. 1825, c. 99, for the purpose of manufacturing glass in the city of Boston and the town of Sand wich.

<p>Writ of entry to recover one undivided fourth part of a parcel of land in Hanover Street, Boston. The demandants declared on their own seizin in right of Sarah Holm, wife of said Christian W., and a disseizin by the tenant. The title claimed for the wife was that of a devisee under the will of William C. Hookway, who, in 1813, died seized of the demanded premises, and of other real estate. Said will, after directing payment of the testator’s debts, &c. contained this clause : “ And as to the rest and residue of my estate, I dispose of the same as follows ; viz. to my wife, Lydia Hookway, I give and bequeath all my household furniture, and the income, rents and profits of all my other estate, whether real, personal or mixed, during the minority of my children, provided she continues single and my widow, and does not marry again ; and on no other condition : But if she shall again marry, then, in lieu of the income of my estate bequeathed as aforesaid, she shall have, and I do hereby order my executors to pay her annually, from the income of my said estate, the sum of $ 100, during her natural life ; provided also, that she shall and does accept the same in lieu of all dower in my said estate. And 1 do further will and order, that as my children arrive to lawful age, or become twenty-one years of age, they each receive from the income ot my estate aforesaid the sum of $ 100 annually, to be paid to them by my executors hereinafter named, if the said income of my estate will admit thereof without injuring my wife or such children as may yet be minors ; which I leave to be judged of and determined at the discretion of my executors aforesaid.</p> <p>“ It is to be understood, that during the time my wife enjoys the whole income of my said estate, she support and educate my children out of said income; and further, that if by intermarriage she shall vacate her claim to the whole of said income, and become entitled, in lieu thereof, to an annuity of $ 100 for life, as hereinbefore provided, then the residue of the income of my said estate, during the minority of my children, shall be appropriated to their support and education, as my executors shall direct.</p> <p>“ And I do further will and order, that upon the death of my wife, and all my children or the survivors of them attaining the age of twenty-one years, or the heirs of such of them as may decease, leaving issue, all my said estate be divided between my said children and their heirs, agreeably to the laws of this Commonwealth respecting the division of the estates of persons dying intestate. And I do further will and order, that if, after the death of my wife, my children shall die without issue, then all my estate of every description, real, personal and mixed, shall descend to and be equally divided between my nephews, viz. John C. Ashley, the son of my sister Sarah Frothingham, and William Collins Hookway Downing, the son of my sister Ann Downing, to hold the same to them and their heirs and assigns forever.”</p> <p>The aforesaid will. was duly proved and allowed, on the 18th of October 1813. The executors therein named declined the trust, and letters of administration, with the will annexed, were duly issued. Lydia Hookway, wife of said testator, survived her husband, and remained unmarried during the remainder of her life. Two minor children of the testator also survived him, and were his sole heirs at law ; viz. William C. Hookway and Eliza C. Hookway, afterwards wife of Joel Holden. Lydia, the widow, on the 22d of November 1813, filed in the probate court a claim of dower in' her husband’s real estate, and renounced the legacies given her by his will; and on the 13th of December next following, the premises, of which the demand ants claim one fourth in this suit, were assigned to her as her dower, which she accepted, and occupied the same during her life.</p> <p>On the 25th of November 1818, the children of said testator, viz. William C. Hookway, and Eliza C. Holden and her husband, Joel Holden, by deed of partition, divided all the real estate of the testator, except that which was set off to the widow as her dower. William C., the testator’s son, conveyed all his interest in one undivided half of the land, which was set off as dower, and of which one fourth is demanded in this suit, to Eli Taylor, by deed- of warranty, dated January 16th 1822 ; and said Taylor conveyed the same to said Low, the tenant, by deed dated October 24th 1826. Said deed to Taylor was made while the testator’s widow was alive, but after his said two children, William C. and Eliza C. had reached the age of twenty-one years. Said William C., the son of the testator, died in 1830, and his only issue, living at his death, were two children, of whom the demandant, Sarah Holm, is one. Said Eliza C. Holden, the daughter of the testator, died in 1831, leaving issue now living. Lydia Hookway, widow of the testator, died in 1837.</p> <p>The personal property of said testator was inventoried at $ 164‘60, and his real estate at $ 5070. On the 23d of April 1835, the administrator, of said Eliza C. Holden, w'ho was also the administrator, with the will annexed, of the estate of said testator, sold a part of the estate conveyed to Mrs. Holden by the aforementioned deed of partition, under a license from the probate court.</p> <p>It was agreed by the parties, that judgment should be rendered for the demandants, or for the tenant, according to the opinion of the court on the foregoing facts.</p>

<p>Assumpsit by the indorsees against the indorser of this promissory note : “ Buffalo, 21st Sept. 1836. Six months after date, I promise to pay John H. Corl, or order, two hundred and seventy-two jfg dollars, at the Commercial Bank of Lake Erie m Cleveland, Ohio, for value received. William B. Bennet.”</p> <p>At the trial before Putnam,, J. the signature of the maker and the indorsement by the defendant were admitted. The plaintiffs introduced the deposition of Freeman P. Handy, a notary public in Ohio, in which he deposed that he, on the 24tb of March 1837, presented said note at the bank in Cleveland, where it was made payable, and there demanded payment thereof, which was refused — the teller of said bank replying that there were no funds to satisfy said note : That said note was duly protested by said Handy, on the same 24th of March, at said bank, and that he gave notice to the indorser, (the defendant,) by putting into the post office at Cleveland, on the evening of the same day, a letter addressed to the defendant at Buffalo, New York, informing him that said note (describing it) had been protested for non-payment, and that the holders looked to him for payment of the same : That said notice was put into said post office in season for it to go by the first mail which left Cleveland for Buffalo after said note was presented at said bank for payment: That said notice was sent to the defendant by order of the bank from which it was received for collection ; and that said notary was informed that the defendant resided at said Buffalo.</p> <p>The defendant then gave in evidence a copy of a record of a certain judgment recovered by the plaintiffs against the defendant in the court of common pleas in Cuyahoga county, Ohio ; and he "thereupon contended that the note now in suit had already been once the subject of an action, and that the plaintiffs, by said judgment, were precluded from maintaining the present suit. (See the statement, as to this record, in the opinion of the court, post, 205.)</p> <p>The defendant also contended that he was not liable ; first, because the note was not duly presented for payment at maturity ; there being no evidence of any law or usage in Ohio, as to allowance of days of grace : Secondly, because the evidence did not show that the notice of non-payment was sent to the residence of the defendant; the burden of proof, as to this fact, being on the plaintiffs.</p> <p>The judge ruled in favor of the plaintiffs on these matters of defence, and directed the jury, in the absence of any proof as to the rate of interest in Ohio, to compute it at six per cent, per annum, by way of damages for non-payment of the note. The jury returned a verdict for the plaintiffs for the amount of the note, and interest at six per cent, from the day it was payable. The defendant moved for a new trial on account of said rulings and instruction.</p>

<p>Though a fire insurance company are authorized by their charter to insure property only to the amount of three fourths of its value, yet if they deliberately make a valuation of property, and insure three fourths only of the amount of such valuation, they are bound thereby, in the absence of fraud, collusion or misrepresentation, and cannot show, in an action against them to recover a loss, that the property was insured for more than three fourths of its value.</p>

<p>Under St. 1825, c. 141, incorporating the Middlesex Mutual Fire Insurance Company, the assured who suffers a loss by fire, may bring his action against the company in any county where an action may be brought by the provisions of the Rev. Sts. c. 90, §§ 15,16, except in a case where the directors of the company, on notice of a loss, given by the assured, proceed within thirty days to ascertain and determine the amount of such loss, and the assured is not satisfied with their determination z In such case, the assured is required to bring his action at the first court in the county of Middlesex, that is competent to try it.</p> <p>An action on a policy of insurance was brought in the county of Suffolk against the Middlesex Mutual Fire Insurance Company, by plaintiffs, one of whom resided in Suffolk, and the declaration merely set forth the policy, the loss, and notice given to the directors within thirty days, and the neglect of the company to pay according to the terms and conditions of the policy: The defendants pleaded in abatement, that the action should have been brought in the county of Middlesex. Held, that the plea was bad, and that the defendants should answer over.</p>

Assumpsit to recover the amount of a note in these words . Boston May 5, 1830. For value received I promise to pay to my own order two hundred and fifty dollars in three months from date, and grace. Jona. Wright. Witness : Albert G. Baxter. The note was indorsed in blank by said Wright, the promisor.

Indebitatus assumpsit on this account annexed to the writ: William Dillaway, owner of brig Magnet, to Winsor & Bruce Dr. 1840. July 21. To commission on sale of brig Magnet to Mr. Gage at $ 2,400, at 2$ 60-00 At the trial in the court of common pleas, before Williams, C. J. it appeared in evidence that the plaintiffs were ship-brokers doing business in Boston.

<p>A. made an oral agreement for the purchase of B/s house, advanced the purchase money, and took possession : Before A. obtained a deed, the house was destroyed by fire, and lie thereupon vacated possession of the ground, refused to accept a deed which R. tendered him immediately after the fire, and commenced a suit against B. in which he recovered back the purchase money. Held, that A., during his occupation of the house, was tenant at will, and that he was liable to B. in an action of assumpsit for use and occupation. Held also, that A., by refusing to accept a deed from B., determined the tenancy at will, and was no longer liable to him for use and occupation.</p>

<p>Where the payee of a note, at the time it was signed by the maker, and as a part of the same transaction, indorsed thereon a promise not to compel payment thereof, bul to receive the amount when convenient for the maker to pay it, it was held that the indorsement must be taken as part of the instrument, and that the payee could never maintain an action thereon.</p>

<p>An order in this form—“ Pay J. or order jf 300, if the same may be due him from me on his and my settlement, out of the last payment due from you to me, on houses which I am now building for you ” — and accepted by the drawee, cannot be declared on as a bill of exchange: But the drawee, in order to maintain an action thereon against the acceptor, must aver and prove that, before action brought, there was due to the drawee, upon a settlement with the drawer, $ 300 or some other sum, and also that a sum of money was due from the acceptor out of the last payment to be made by him to the drawer on the houses mentioned in the order.</p> <p>By an agreement between A. and B., A. was to build a block of houses for B., for a sum which was to be paid by three instalments, the last of which was to be paid when the block should be finished: It was further agreed, that if A. should fail to complete the block, B. should complete it “ by contract, by the rules of work, or otherwise,” and deduct the cost of the completion from the sum agreed to be paid to A.: A. began to build, and drew several orders on B., which B. accepted, in favor of workmen employed by A. on the block, and payable out of the last instalment, if the amount of the orders, respectively, should be due from A. on his settlement with the payees: B. subsequently advanced money to A. towards payment of the last instalment, without the consent or knowledge of the holders of said orders:</p> <p>A. afterwards failed to complete the block, and the holders of the orders met and agreed that B. should proceed to complete it, under the superintendence of a committee of said holders, by furnishing materials and hiring workmen by the day, and that B., after thus completing the block, and deducting the cost of completion, should distribute the balance, due to A. on the last instalment, among the holders of the orders, pro rata, and be discharged from any further liability on his acceptances : B. completed the block accordingly, and upon a subsequent settlement between him and A., after deducting the advances made towards payment of the last instalment, there was found .due to A. less than was sufficient to pay all said orders in full. Held, that in the absence of a consideration for the agreement that</p> <p>B. should be discharged from his acceptances by paying them pro rata, he was bound to pay them in full, in the order in which they were made, to the amount of the sum which would have been due to A., on settlement, without deducting the advances made towards payment of the last instalment. Held also, that evidence was not admissible to show that the payees of the orders, at the time they were ac cepted, must have supposed that it would be necessary that B. should make ad vanees to A. on the last instalment, in order to enable A. to fulfil his contract.</p> <p>One part of the instructions given to a jury, on any point in a cause, is to be taken and construed in connexion with other parts 5 and if the instructions, as a whole, are not erroneous, a party cannot succeed in his exceptions thereto, although a sin gle passage of the instructions, if taken abstractly, may be erroneous.</p>

<p>Assumpsit for money had and received.</p> <p>At the trial before Putnam, J. it appeared that the plaintiff, on the 5th of October 1837, paid a large sum to the defendants, for the purpose of redeeming an estate in Eastport, in the State of Maine, known as the Salt Works ; the defendants being, at the time of such payment, mortgagees of said estate, and in possession thereof for foreclosure : That the payment was made under protest, and with notice to the defendants that the plaintiff should sue them to recover back the amount unjustly charged, and by him overpaid : That in the defendants’ final account as mortgagees, was a charge, which the plaintiff paid in full, of $ 600 a year, from April 1835 to October 5th 1837, for the salary which the defendants, as mortgagees, paid to Solomon Rice, for custody and care of the mortgaged property, as their agent; and that there were other charges in said account, for another agent of the defendants, and for costs, fees, executions, compound interest, &c. The plaintiff also claimed to recover back, besides the charges aforesaid, all sums which the defendants, as mortgagees in possession, might have obtained, by the exercise of due diligence, care and economy, for rent, use and occupation of the mortgaged property.</p> <p>It appeared that on the 13th of August 1830, said Salt Works were owned by Ezekiel Foster, and cost about $65,000 ; that said Foster, on that day, made the first mortgage thereof to Ezekiel Prince, who duly assigned the same to the defendants ; and that the defendants, on the 11th of October 1834, were put into possession of the mortgaged premises, on a writ of habere facias possessionem, which issued on a judgment recovered by them against said Foster, after breach of the condition of said mortgage : That Foster, after making the aforesaid mortgage to Prince, made mortgage deeds of the same and other property to Charles J. Cazenove, and to the plaintiff, respectively, to secure debts due to the firm of Charles J. Cazenove & Co. of which firm the plaintiff was a member: That said Charles J. Cazenove died and said firm failed in 1833 or 1834, and that their property was assigned to Eliphalet Hale : That on the 10th of April 1834, an arrangement was made by indenture by and between said Foster, the plaintiff, as survivor of said firm, the said Hale, assignee, and Ichabod R. Cliadbourne, Frederick Hobbs and Jonathan Buck, by which Foster conveyed the Salt Works and other property to said Chadbourne, Hobbs and Buck, in trust, to secure payment of the debts from him to said firm. Among other terms of this indenture, Foster was to remain in possession of the Salt Works, until he should fail to make some one of the payments, which by said indenture he covenanted to make towards a discharge of said debts ; and upon his failure to make any of said payments, said trustees were to enter and take possession of said conveyed property, and to surrender the same, upon demand, to said firm, or to the survivor of them, or their assigns, to be entered upon by them under the mortgage deeds last aforesaid, for the purpose of foreclosure : That on the 15th of November 1834, said Hale gave to the plaintiff a letter of attorney, empowering him to do all acts which said deed of trust might require to be done by said Hale, and that the plaintiff acted under said letter That Foster failed to make payment, according to the stipulations of the indenture, and that the trustees took possession of the Salt Works, on the 9th of December 1834: That said Hale, assignee as aforesaid, on the 20th of June 1835, demanded of said Chadbourne, Hobbs and Buck, that they should surrender to him the possession of the property conveyed to them in trust, which they accordingly so surrendered on the samf day : That said trustees, on the 31st of August 1835, conveyed the trust estate to said Hale, and the plaintiff gave them a release of all further claims on them under the trust deed : That said Hale afterwards made an adjustment of the concerns of the firm of Charles J. Caz? aove & Co. and on the 18th of July 1837 conveyed to the plaintiff the estates which Foster had conveyed, as aforesaid, by the indenture of April 10th 1834.</p> <p>The defendants called Frederick Hobbs, one of the trustees aforesaid, as a witness. He testified that in February 1834, he was requested, on behalf of the plaintiff, to demand of Foster payment of a debt; that he commenced a suit for the plaintiff against Foster, and caused the Salt Works, &c. to be attached that Foster failed in April 1834, and that the witness was em ployed by the plaintiff to assist in arranging Foster’s affairs ; that Foster, for the purpose of securing the plaintiff, conveyed his property in trust (as above stated), and that the witness accepted the trust, and withdrew the attachment and suit: That Solomon Rice had the care of the Salt Works, at that time, for Foster, who was left in possession by the terms of the trust deed : That the witness instituted a suit for the defendants, at their request, to obtain possession of the Salt Works, for foreclosure ; that judgment was recovered in that suit, and a writ of habere facias issued thereon, by virtue of which the sheriff delivered possession to the witness, as attorney of the defendants, on the 11th of October 1834, as above stated : That said Rice was then on the premises, representing himself to he there under Foster, and the witness requested said Rice to take care of the property as he had done theretofore ; that no agreement was made, at that time, respecting the sum which Rice should receive for his services ; but that, at the opening of the spring of 1835, the witness, after consulting his co-trustees, Chadbourne and Buck, and other persons, on whose judgment he relied, agreed to allow Rice $ 50 per month for his services in taking care of the Salt Works estate, until the 1st of November 1835, or until' some other person, having right, should come into possession : That nothing was paid, or agreed to be paid to Rice for his care of the property before this last agreement was made with him : That the witness saw the plaintiff at Eastport, in 1834, and several times afterwards, before September 1836, and that he never objected to the employment of Rice ; that he once casually remarked that he should “ not pay Rice that salary,” but never said any more on the subject; and that if the plaintiff had named any competent person, at a smaller compensation, the witness should have immediately adopted his suggestion.</p> <p>There was much evidence, on both sides, as to the condition of the Salt Works, their exposure to trespassers, the peculiar fitness of Rice to protect them, the practicability of procuring other competent men for a smaller compensation, &c.</p> <p>The judge instructed the jury, “ that the defendants were to be allowed a reasonable sum for care and expenses, and no more; and that if the plaintiff had paid them more, he could recover it back in this action.” The jury returned a verdict for the plaintiff for $ 1057-61, and the defendants moved for a new trial.</p>

<p>Where the payee of a promissory note, which is made by one citizen of this State to another citizen thereof, indorses it specially to a citizen of another State, who dies and whose will is admitted to probate in that State before the note falls due, and his executor, without taking administration in this State, sends the note to a notary public in this State, with directions to demand payment of the maker at maturity, and the notary demands payment accordingly, which the maker refuses generally, without objecting to the notary's authority, and the notary thereupon gives due notice of non-payment to the indorser’s executors 5 such demand and notice are sufficient to charge such executors5 and an administrator of the estate" of the indorsee within this State, who is afterwards duly appointed here, according to the provisions of the Rev. Sts. c. 62, is thereupon entitled to maintain an action against them on the note.</p>

<p>This was a bill in equity, originally brought by Nathaniel Hobart to compel the defendant to render an account, and to pay over to him such sum as should thereupon be found due to him. Timothy H. Carter was afterwards made a party, as plaintiff, by order of the court. The facts of the case, so far as they relate to the point decided by the court, and hereinafter stated, appeared in the bill, answer, and master’s report; and wore as follows : From 1829 to 1334, the defendant, at different times, assisted Timothy H. Carter in raising money, by indorsing said Carter’s notes, and otherwise, for which he received a commission, and was also protected by collateral security. Among other property, which was placed in the defendant’s hands to secure him for liabilities incurred for Carter, were thirteen promissory notes made to said Carter by the firm of Carter, Hendee & Co. for value received, and indorsed by him.</p> <p>On the 8th of May 1834, Carter, Hendee & Co. failed, and assigned their property, in trust for their creditors, to Samuel G. Goodrich and three others. In this assignment, the aforesaid thirteen notes, amounting to about $ 9700, were placed among the preferred debts of the assignors, being described as “ held by E. T. Andrews, as collateral security.” Timothy H. Carter was, at the same time, indebted to Carter, Hendee & Co. about $ 5000, which debt was assigned by them, with their other effects and credits, to said Goodrich and others, but was never paid by Timothy H. Carter.</p> <p>On the 26th of May 1834, Timothy H. Carter failed, and assigned all his property, in trust for his creditors, to David L. Child and Richard B. Carter. Among other property thus assigned was “ a surplus of property pledged to E. T. Andrews, consisting of notes of hand,” &c. On the same day, Goodrich and others, the assignees of Carter, Hendee & Co., with the consent of the assignors, assigned all the property, so as aforesaid conveyed to them in trust, to said E. T. Andrews, Samuel P. Heywood, and Charles Bowen, to hold the same on the trusts in the original deed of assignment.</p> <p>On the 1st of April 1837, the defendant rendered to said D. L. Child and R. B. Carter, assignees of Timothy H. Carter, his account current with said Timothy ; and on the 1st of May next after, said Richard B. Carter sold, and conveyed by deed, to Hobart, the plaintiff, all the right of said Child and Carter to a portion of the property assigned to them by T. H. Carter, among which was mentioned a “balance in hands of E. T. Andrews.” This conveyance was afterwards confirmed by said Child.</p> <p>On the 31st of Mav 1837, Bowen, one of the trustees of Carter, Hendee & Co., gave notice to Andrews, the defendant, that if he had received from the effects of Carter, Hendee & Co. more than sufficient to pay his claims against T. H. Carter, he must account with their trustees for the balance.</p> <p>On the 9th of June 1838, an indenture was executed by and between Richard B. Carter and Charles J. Hendee, (two of the firm of Carter, Hendee & Co.) and said Andrews, Heywood and Bowen, assignees and trustees as aforesaid, in which said assignees covenanted that they would assign and set over to said Richard B. and Charles J. all the moneys, goods, effects, credits, dioses in action, &c., belonging to Carter, Hendee & Co , or in the hands of said assignees, as such, upon being paid therefor such sums as should liquidate and settle debts owing by said assignees, as such, and such further sums as would pay to the creditors who had signed the assignment of Carter, Hendee & Co., and were not preferred, ten per cent, on the principal sum of their demands ; the aggregate sum not to exceed $ 3400, and to be paid on or before May 15th 1839. And on the 6th of March 1839, pursuant to the covenant aforesaid, the remaining property of Carter, Hendee & Co. was delivered to said Richard B. Carter and Charles J. Hendee ; the guaranty of a third person being given to said assignees, that the terms of said indenture should be performed by said Carter & Hendee.</p> <p>The full amount of the thirteen notes above mentioned was paid to the defendant from the assigned effects of Carter, Hen dee & Co.</p> <p>Several accounts of the transactions between the defendant and Timothy H. Carter were settled by said Carter and by his assignees. And the defendant, in his answer, relied on those settlements as conclusive. He also insisted, that on a final account of his said transactions, there was no balance, in his hands, due to said Carter : He further set forth in his answer, that if tiiere were in his hands, on account of the money received by him on the aforesaid thirteen notes, any balance for which he ought to account, the same was due in equity, and ought to be repaid, to the trustees of the property of the firm of Carter, Hendee & Co., or to said Richard B. Carter and Charles J. Hendee, and not to the plaintiffs or either of them ; and that said trustees, and said Carter & Hendee, both claim of the defendant, that such balance, if any, should be paid to them.</p> <p>At March term 1840, the court ordered that a mutual account of all the dealings and transactions between said Timothy II Carter and the defendant (not included in certain accounts mertioned in the defendant’s answer as settled) should be taken by a master, who, in taking such account, should make to the parties all just allowances : And that if there should appear to be any balance against the defendant, the master should inquire whether the same should be paid to the complainants or either of them, or to the persons, or either of them, who in said answer are mentioned as claiming the same.</p> <p>The master, to whom the case was referred, stated an account, according to the order of court, in which the balance was against the defendant; and he reported that said “ balance ought to be paid to the complainant, Nathaniel Hobart.” Several exceptions were taken, on both sides, to the master’s report; but the main question arose on the exception taken by the defendant to that part of the report which directed the balance to be paid to Hobart.</p>

<p>This was an action on a promissory note for $3097‘93, dated March 13th 1839, payable in. six months to the defendants’ own order, and specially indorsed by their president to the plaintiffs, who are merchants at St. Johns, New Brunswick.</p> <p>The trial was before the chief justice, who made the follow' mg report of it: The execution and delivery of the note were admitted by the defendants. The defence was, that the note was without consideration, and was obtained by fraud. It appeared that on the 1st of May 1837, the defendants underwrote a policy, by which Rice & Thaxter, merchants of Boston, for the use of the plaintiffs, were insured to the amount of $4800, on a vessel called the Francis, for one year from that date. The vessel was valued at $ 8000. A similar policy was made by the defendants, on the same day, for Robert Fields, the master and general owner of the vessel, for $ 3200, the balance of the valuation thereof. The plaintiffs’ interest in the vessel was that of mortgagees or pledgees ; the vessel being pledged to them to secure payment of money due to them to an amount greater than the sum insured for'their use.</p> <p>The vessel sailed from St. Johns after the policies attached, and was soon after cast away, surveyed and condemned, under such circumstances as to induce a strong suspicion on the part of the defendants, that she was cast away by the fraudulent act or procurement of the master ; and they determined to refuse payment of the loss on that ground. The plaintiffs brought a suit on their policy in the court of common pleas in this county, and said Fields brought an action on his policy, in the circuit court of the United States for the district of Massachusetts. The latter was tried in November 1838, and the defendants defended on the ground of such fraud ; and though, on the trial, witnesses testified strongly to acts of fraud by the plaintiff, (the master) yet their testimony was so much discredited by other evidence, that the defendants did not rely upon it, and a verdict was returned against them. Sundry exceptions were, however, taken, with a view of carrying the case before the supreme court of the United States.</p> <p>In this state of things, a negotiation was opened in February or March 1839, for the settlement of both policies by compromise. Fields, the master, was in Boston acting for himself; and the plaintiffs acted through their agents, Rice & Thaxter. Thayer & Bates, merchants, were the agents of Fields, and acted for him in his absence, and assisted him in the negotiation This negotiation resulted in a compromise, by which the defendants agreed to pay the amount of the verdict obtained by Fields in the circuit court, and to adjust and state the loss on the plaintiffs’ policy, and to pay the amount thereof, deducting $1000. This settlement was indorsed on the policy, and the note now in suit was given, and the' plaintiffs’ action withdrawn. At the time of this compromise, the defendants had waived no rights to defend themselves, in any suit to be brought on the plaintiffs’ policy, upon any ground; but their expectation of sustaining a defence, on the ground that the loss was designed and fraudulent, was much diminished by the result of the trial on Fields’s policy, and the discouraging advice of their counsel as to maintaining their exceptions in that case. .</p> <p>The defendants now' offered to show, that after the compromise was made and the note given, information was, for the first time, discovered and communicated to them, that in breaking up or repairing the vessel, it manifestly appeared that she had been scuttled from the inside ; that several auger holes -had been bored through the outside plank, and plugs slightly inserted, which might easily be removed, &c. and the whole concealed by the sand ballast. They also offered to give evidence of the circumstances of the voyage and the loss of the vessel, to render it probable that this act of scuttling was done by the master, and so to prove that the loss was fraudulent.</p> <p>The plaintiffs objected to the admission of any evidence to show fraud in the loss of the vessel, and insisted that they had an interest independent of that of Fields, and were not bound by his acts, except so far as he was master of the vessel insured, and that in making the compromise, they acted for themselves and by their agents, and that their settlement could not be affected by any secret knowledge of Fields as to the casting away of the vessel.</p> <p>The chief justice ruled, i£ that if the settlement for the plaintiffs with the defendants was made and concluded by their own agents, Rice & Thaxter, for the plaintiffs, on their own interest, such settlemént could not be impeached on the ground of fraud, though Fields, the master, had secret knowledge that the vessel was fraudulently cast away, and though the interest of the plaintiffs was derived from a hypothecation hy Fields ; nor because Fields, with such secret knowledge — he denying all fraud in the loss — made a compromise and settlement of his own policy at the same time.” It was also ruled, “ that the note might be impeached on the ground of any fraudulent misrepresentation or concealment in conducting the negotiation which led to the compromise ; but as the claim on the policy hy the plaintiffs, and the right to defend on the ground of the fraud of another in casting away the vessel, had been settled and compromised, it was not competent for the defendants to give evidence of such fraudulent loss, caused by another, in defence of the suit on this note ; although other evidence of such fraud had been discovered, much more stringent, direct, and conclusive of the fact, and which was not known to the defendants at the time of the com promise.”</p> <p>A verdict was taken for the plaintiffs, subject to the opinion of the whole court upon the correctness of the aforesaid ruling.</p>

Inbebitatus assumpsit to recover $65-36, expended by the plaintiffs for the support of Samuel W. Bickham, and Lydia his wife, paupers, in the house of correction in the city of Boston.

<p>There is nothing repugnant to the constitution or laws of the United States in the third section of St. 1837, c. 238, which prohibits the landing of alien passengers, who arrive in any vessel at any port or harbor in this State, until the master, owner, consignee or agent of the vessel, shall pay to the regularly appointed boarding officer the sum of two dollars for each passenger, to be appropriated for the support of foreign paupers.</p>

<p>Trespass for taking and carrying away goods. Writ dated March 19th 1840. The parties submitted the case to the decision of the court on the following facts agreed :</p> <p>“ On the 8th day of November 1839, Benjamin Foster jr. of Charlestown, a citizen of the State of Massachusetts, whose debts exceeded $ 500, made and executed an assignment of his property to the plaintiff, and the said Foster took the oath, and' the said Carter gave notice as is required by law. On the 19th and 20th days of November 1839, Benjamin H. Springer, a citizen of the State of Pennsylvania, instituted several suits against the said Foster in the circuit court of the United States for the district of Massachusetts, and the writs of attachment therein were delivered for service to the defendant, who was then the marshal of the United States for the district aforesaid, who, on the same days, by virtue of the said writs, attached certain property which was embraced in the said deed of assignment from the said Foster to the plaintiff, to recover the value of which, this action is brought. On the 15th day of August 1840, the said Foster applied to a master in chancery in the county of Middlesex, and was declared an insolvent debtor, and a warrant having issued, and a meeting of the creditors of the said Foster being held, the plaintiff was duly elected assignee of the goods and estate of the said Foster.</p> <p>“ The suits of the said Springer against the said Foster, were duly entered in court, and one of them having been terminated by a final judgment, the execution which issued thereon was levied on a part of the property attached, pursuant to the attachment. The other suit is still pending in court. . Upon the execution of the said assignment to said Carter by said Foster, the said Carter took possession of the property thereby assigned, the property attached by said Sibley being a part thereof, and the same was in the possession of the said Carter at the time of said attachment. And on the 30th of Nov. 1839, the said Carter gave to said Sibley notice in writing that he, said Carter, claimed the said property by virtue of said assignment, and demanded the same of said Sibley.</p> <p>“If the court shall be of opinion that the plaintiff can maintain this action, upon the facts above set forth, then the case is to be put to a jury to assess the damages ; otherwise, the plaintiff is to be nonsuit.”</p>

Assumpsit for goods sold to the defendant on the 2d of December 1840. The defendant filed, by way of set-off, an account against the plaintiff for goods sold to him on the 30th of April 1840. At the trial in the court of common pleas, the defendant admitted the plaintiff’s claim.

Assumpsit by the payee against the maker of a promissory note. At the trial, in the court of common pleas, it was admitted that the defendant was a married woman, when she made the note, but that she had, before that time, been separated from her husband, by a decree of divorce from bed and board, and had, ever since that decree, lived apart from her husband ; and that these facts were known to the plaintiff when the note was made.

<p>Fixtures, and additions in the nature of fixtures, which are placed in a building by a mortgagor, after he has mortgaged it, become part of the realty, as between him and the mortgagee, and cannot be removed or otherwise disposed of by him while the mortgage is in force.</p> <p>A steam engine, boilers, &c. and machinery adapted to be moved by such engine, by means of connecting bands and other gearing, which are placed in a building de signed for the manufacture of steam engines and other heavy iron work, are fixtures, or in the nature of fixtures.</p> <p>A mortgage of a building,11 and also such tools, and other property as is now contemplated to be placed in said building,” with a covenant that the instrument shall be effectual to cre'ate a lien on such property, does not create a Hen on the property afterwards placed m the building, but is void for uncertainty, as against a mortgagee of the property, whose mortgage is executed after the property is placed in the building.</p> <p>A mortgage of all the goods, &c. in and about a certain building, with a provision that a schedule of the articles shall be annexed, is valid as to all the articles that can be identified, though no schedule thereof is ever annexed to the mortgage.</p>

<p>Where the settlement of an estate that is represented to be insolvent is delayed after the commissioners of insolvency have made their return of the claims allowed by them against the estate, and part of such claims are afterwards paid by other parties, or are withdrawn by the claimants, so that the assets in the hands of the administrator exceed the amount of the remainder of the allowed claims, the judge of probate may correct the list of allowed claims, conformably to these facts, and may add interest to the remaining claims from the time of the commissioners7 return to the time of his passing a decree of distribution to the creditors.</p>

This was an appeal, under the Rev. Sts. c. 68, § 8, from a decision of the commissioners of insolvency, appointed to receive and examine the claims of creditors against the estate of John K. Simpson, deceased, disallowing the claim of the plaintiffs against said estate, of which the defendant was administrator.

<p>This was a bill in equity, in which William P. Greene, Augusta E. Greene, his wife, and Josiah Quincy jr. prayed for a decree that the defendant render an account of the rents and profits of certain estates, and pay one half thereof to said Quincy. The hearing was on the bill and answer, which ex hibited these facts : Sarah Borland, deceased, the mother of the defendant and of the said Augusta E., by her last will, after giving certain legacies, devised and bequeathed to the defendant one half of all the residue of her property, real and personal. The other half of said residue she devised and bequeathed to S. Hubbard and W. Minot, in trust, to invest the same in real or personal securities, and the same to change and reinvest, as from time to time they might think best, and to pay over the whole income, interest and profits thereof to said Augusta E., wife of said William P., for and during her life, upon her sole and separate receipt or order, without any joinder of her said husband therein ; and upon the death of said Augusta E., to pay over, transfer and convey unto her children, in equal shares, the whol° of the said principal sum, in whatsoever manner the same might be then invested, to have and to hold to them and their heirs, discharged of all trusts, to their own use for ever.</p> <p>This will was duly proved and allowed in November 1839, and letters testamentary were granted to the defendant, who was the executor. The said Hubbard and Minot declined to accep* the trusts thereunder, and the said Quincy, upon his own petition, and notice thereof to the said William P. and Augusta E., with the assent of a guardian ad litem of their minor children, was appointed trustee in their stead, by the judge of probate, and accepted the trust and gave bond to execute the same. No notice of said Quincy’s said petition was served on the defendant, and the only information he had thereof was derived from a conversation with the judge of probate, in which the defendant casually learned that it was contemplated by said judge to appoint said Quincy ; whereupon the defendant caused a letter to be handed to the judge, in open court, protesting against such appointment and stating his objections thereto, and requesting that said letter might be placed on the files of the probate court.</p> <p>The defendant, since the death of said testatrix, has collected a large amount of money, rents of the real estate devised by her as aforesaid, one half of which the said Quincy has demanded to be paid to him, as trustee under said will; but the defendant has refused to account with him therefor, on the ground that his appointment was illegal.</p>

<p>Debt on a judgment of the court of common pleas in the State of Maine, rendered in favor of the plaintiff, against the defendant, for $ 45-97, costs. The action was commenced in the court of common pleas in this county, and submitted to the decision of that court on the following facts, “ if such facts, or any of them would be admissible by plea or otherwise.”</p> <p>At the August term, 1839, of the said court in Maine, the plaintiff recovered a judgment, of which a copy is in the margin.* Avery Holbrook, whose name is mentioned in said judgment, was a citizen of Massachusetts, and employed an attorney of the court in Maine to commence the action referred to in said judgment, who brought the same in said Holbrook’s name. After the action was entered in court, said Holbrook died, and thereupon the defendant, Dodd, was appointed administrator of his estate, by the probate court of the county of Suffolk, in this Commonwealth. Said Dodd then was, and ever since has been, an inhabitant of Boston. He never took administration on the estate of said Holbrook in Maine, and never personally ap peared in the suit mentioned in said judgment, or submitted himself to the jurisdiction of the court in said judgment mentioned ; and never authorized any person to appear for him in said court or suit, or on his account, as administrator or otherwise.</p> <p>The plaintiff, Gleason, can prove, (if such evidence would be admissible, on a trial of this action,) that the attorney above-mentioned, being a regular practitioner and attorney in said court in Maine, did suggest, in the suit aforesaid, the death of said Holbrook, and caused the appearance of said Dodd, as administrator, to be entered for the purpose of prosecuting the same.</p> <p>On these facts, the court of common pleas gave judgment for the plaintiff, and the defendant appealed to this court.</p>

Debt on a judgment for costs, rendered by the supreme judicial court of the State of Maine. The case was submitted to the court on these facts agreed by the parties : At a term of the supreme judicial court of Maine, held at Bangor, on the fourth Tuesday of October 1839, in an action there pending in the name of the New England Bank, as plaintiffs, and the said Watson, as defendant, judgment was rendered in favor of said Watson for $ 59-91 costs, upon a non-suit.

<p>Assumpsit to recover $ 1729-02.</p> <p>The parties submitted the case to the court on the following facts : The defendants are executors of the last will of Mary Ann May, who, by said will, directed them to pay $ 2000 to Abby Alcott, upon the death of Joseph May. The plaintiff is assignee of the estate of Amos B. Alcott, the husband of said Abby, under St. 1838, c. 163.</p> <p>The estate of said Amos B. was assigned to the plaintiff by the judge of probate for the county of Middlesex, under the following circumstances : After the decease of the abovenamed Joseph May, the amount of said legacy was attached in the hands of the defendants, by a trustee process in favor of a creditor of said Amos B. Alcott, in an action founded upon a demand which was, in its nature, proveable against the estate of an insolvent debtor, under the said statute. Said process was returnable and returned to the court of common pleas for the county of Suffolk, at April term, 1841. The present defendants charged themselves, by their answers in said process, as trustees of said Alcott, by reason of said legacy, and final judgment was rendered therein against said Alcott, as principal, and these defendants, as his trustees, for the sum of $ 1704-42, and costs, on the afternoon of April 28th 1841 ; being three days before the last day of said term. The said attachment was never dissolved by said Alcott.</p> <p>After said final judgment was rendered, and on the same day, viz. April 28th 1841, other creditors of said Alcott preferred a petition to the said judge of probate, setting forth the foregoing facts, and praying that proceedings might be instituted, under said statute, for dividing and distributing said Alcott’s estate among his creditors. A warrant was issued to a messenger, by said judge, on the same day, directing him to take possession of said estate, and “ forthwith to give public notice, and also to said Alcott’s trustees before named,” [the defendants] “ that a warrant ” had issued against his estate, &c. by advertisement thereof, to be published in the Boston Daily Advertiser, a newspaper printed in Boston, three weeks successively, &c. The messenger gave written notice to each of the defendants personally, before 9 o’clock in the morning of April 29th 1841, and within 24 hours after the rendition of the judgment aforesaid, and before any execution had issued thereon, and caused the notification to be published in said newspaper, as directed in the warrant, on the morning of April 30th. In the afternoon of April 29th, execution in said suit against said Alcott, and the defendants, as his trustees, was issued, and the defendants paid to the officer the said sum of 0 1729-02, the amount which is claimed of them in this action.</p> <p>(Several other facts, which related to the regularity of the proceedings of the judge of probate, &c. were also stated ; but as it became unnecessary for the court to decide the questions arising from those facts, they are not here inserted.)</p> <p>The parties agreed that “ if it is competent in law for the defendants to give in evidence the foregoing facts, or any part thereof; and if, under the facts which may he so given in evidence, the court should be of opinion that the said attachment was not dissolved, and the payment by the defendants, on execution, as above stated, was proper ; the plaintiff shall become nonsuit: Otherwise, judgment is to be rendered against the defendants for the sum of 01729, and costs.”</p>

<p>On the trial of an indictment for an assault on M., with an intent to ravish and carnally know her, by force and against her will, the jury returned a verdict that the defendant was “ not guilty of an assault with an attempt to commit a rape, in manner and form/’ &c. but that he was “guilty of an assault upon and improper and unlawful intercourse with the said M.,” at the time and place in the indictment mentioned. Held, that this was not a special verdict, and that it warranted a judgment against the defendant for a simple assault.</p>

<p>In an indictment on the Rev. Sts. c. 126, § 10, charging the defendant with breaking and entering a dwellinghouse in the night time, with intent to commit a felony, it is not necessary to aver that the offence was committed 1 burglariously/</p> <p>By the Rev. Sts. c. 126, stealing in a dwellinghouse, in the night time, property not exceeding the value of $ 100, is punishable as a simple larceny only, by imprisonment not more than one year 3 and if a defendant, convicted of such offence, is sentenced to any term of solitary imprisonment, in addition to one year’s confinement to hard labor, such sentence is erroneous, and will be reversed on a writ of error.</p>

<p>If an indictment for stealing, in a shop, property of a value not exceeding $ 100, do not allege that the offence was committed in the day time, the defendant, on conviction, can be sentenced only for a simple larceny 3 and a sentence for moré than one year’s imprisonment will be reversed on a writ of error.</p> <p>Where a convict brings two writs of error at the same time, one to reverse an original judgment, and the other to reverse a sentence to additional punishment founded on an information which sets forth such original judgment as one of the grounds of such additional punishment 3 if the original judgment is reversed, the sentence on the information falls with it, and will also be reversed, if the error assigned be a matter of mere law, apparent on the record, although the original judgment was in full force when the writ of error was brought to reverse the sentence on the information.</p>

<p>Three writs of error. The opinion of the court shows the whole matter.</p>

<p>Under the Rev. Sts. c. 81, $ 34, if an appeal from the court of common pleas is no entered in the supreme judicial court at the prescribed term, by reason of any mistake or accident, it cannot legally be entered at any other term of said court, except upon a written petition for leave so to enter it, and after notice of such petition regularly served upon the appellee.</p>

<p>A devise of real estate to an unincorporated society, for charitable uses, is valid. The estate, in such case, descends to the heirs of the testator, subject to a trust created by him, which they are bound to execute j and if they do not execute it voluntarily, the court will regulate and enforce the execution thereof.</p>

<p>Assumpsit on the following written promise : “Received, Feb. 20, 1839, of Oliver Dewey, deputy sheriff, 800 reams crown wrapping paper, valued at $1 per ream, attached on writs, H. Sabin and others against L. D. Brown, and H. Sabin and others against L. D. Brown and H. B. Hill; which property we agree to deliver to said Dewey, on demand, or the value in money. L. D. Brown,</p> <p>M. D. Field.”</p> <p>It was admitted, at the trial before Dewey, J. that judgments were rendered in the suits on which said paper was attached ; that executions issued on those judgments, and were put into the plaintiff ’s hands ; that a legal demand was made on the defendants for said paper, and that they refused to deliver it.</p> <p>The defendant, Brown, gave in evidence a discharge under the insolvent law, (Si. 1838, c. 163,) and the jury were instructed to render a verdict in his favor. Field, the other defendant, offered evidence tending to prove that the said paper was not the property of said Brown, at the time when it was attached; but was the property of said Field and one Phelps, who were partners in business ; and the plaintiff offered evidence tending to prove the contrary. The plaintiff furthermore insisted that said Field could not be allowed to take this ground of de fence.</p> <p>The case was submitted to the jury under the following instructions : That if the jury should find, that at the time when said Field gave the said receipt to the plaintiff, said Brown was in possession of other property, and of sufficient value, which might have been attached, and would have been attached, if said Field had asserted his right to the paper described in said receipt, and had refused to give such receipt; and if the jury should further find that said Field, when he executed said receipt, knew all the- facts and circumstances relating to his title and interest in the property described in the receipt, and the nature thereof, and no new facts in relation thereto had since been ascertained, and, with this knowledge, withheld all' notice of his claim to the property, and executed the receipt, it would constitute no sufficient defence for the said Field to show that said property was not, at the time of giving said receipt, the property of said Brown, but was the property of said Field & Phelps. And the jury were further instructed, that if they did not find such facts to be proved, they would consider the evidence as to the ownership of the property, and if they found that the property was not in Brown, they should return a verdict for the defendant Field.</p> <p>The jury returned a verdict against Field. New trial to be granted, if the above instructions, so far as they were adverse to said Field, were erroneous ; otherwise, judgment to be rendered on the verdict.</p> <p>This case was argued at the last September term.</p>

<p>Assumpsit to recover money paid to the defendant by the United States, as part of the pension granted to Prudence Foot, the plaintiff’s testatrix.</p> <p>The case was submitted to the court on the following facts A pension was granted to the testatrix, as the widow of her first husband, James Knowles, conformably to the third section of the act of congress, passed on the 4th of July 1836, and the act explanatory thereof, passed on the 3d of March 1837. The pension certificate was issued to her from the war department, August 21st 1839, stating that she was entitled to receive $204-19 per annum, commencing March 4th 1831, and to continue while she should remain unmarried.</p> <p>The testatrix died on the 17th of August 1839, leaving a will which has been duly proved and allowed, and by which she bequeathed her pension to the plaintiff and others, giving no part of it to the defendant. She left two children of her first marriage, of whom the defendant was one, and also two children of her last marriage. The defendant received one fourth part of the amount of said pension, under the orders of the officers of the United States, who had charge of the matter of pensions and directed it to be paid to the four children of the testatrix.</p> <p>Defendant to be defaulted, if the action can be maintained ; otherwise, the plaintiff to become nonsuit.</p> <p>This case was argued at the last September term.</p>

This was a petition of certain creditors of Roswell Canfield, who were aggrieved by proceedings against him under St. 1838, c. 163, and prayed the court, as a court of chancery, to make such orders and decrees in the premises, as law and justice might require.

Appeals from decisions of the judge of probate rejecting thf C.?ims of the appellants, respectively, against George H. Phelps, an insolvent debtor, under Si. 1838, c. 163. On the 18th of November 1840, Matthew D. Field made three promissory notes, each payable to the order of Phelps & Hill, which were indorsed by them to the appellants, Barclay & others.

<p>The United States bankrupt act, which went into operation on the 1st of February 1842, did not supersede nor suspend proceedings which were commenced against an insolvent debtor, before that day, under St. 1838, c. 163.</p>

<p>A description of land, in the levy of an execution thereon, by a reference to a deed thereof, which is on record, is sufficient, although the levy does not state that it is on record.</p> <p>In the levy of an execution on land, appraisers may deduct from the appraised value the incumbrance of the inchoate right of the judgment debtor's wife to dower; and the omission of the appraisers in their certifícate, and of the officer in his return, to mention such deduction, will not vitiate the levy.</p> <p>Where fifty acres of land were conveyed on condition that the grantee should pay a mortgage made by the grantor on ten acres thereof, and on other land of the grantor, it was held that, in extending an execution against the grantee on the fifty acres, the appraisers might deduct from the value thereof the whole mortgage debt of the grantor, although such deduction was greater than the value of the ten acres that were subject to the mortgage.</p> <p>In extending an execution on land that is subject to a mortgage, appraisers may deduct all the interest which the judgment debtor is liable to pay on the mortgage debt, although part of such interest has been paid to the mortgagee by a third person, at the request of the judgment debtor’s assignees under the insolvent law, but not at the request or with the consent of such debtor</p>

<p>Trespass for taking and carrying away a quantity of rye. The parties submitted the case to the court on the following facts :</p> <p>“ The land whereon the rye grew descended to the defendant and ten others, as heirs at law of Giles C. Curtis, the defendant’s brother. While the- land was held by said heirs in common and undivided, the defendant sowed a part thereof with rye. This was done without any leave or any objection from his co-tenants. While the rye thus sowed was growing, a partition and distribution of the real estate of said Giles C. was duly made, under the order of the court of probate, and was accepted by said court. A part of the land on which the rye was growing was set to the defendant; a part to three minor children, heirs at law of one of the sisters of said Giles C.; and a part to Cornelia Gardner, another sister of said Giles C. The father of said minors was duly appointed their guardian by the court of probate. He afterwards purchased that part of the land which was set to said Cornelia Gardner, and sold to the plaintiff all the rye growing upon the land set to his minor children and'to said Cornelia; reserving to the defendant one half of said rye. The plaintiff cut and carried away one half of the rye growing on the land so set to said minor children, and placed it in his barn. The defendant cut and carried away the other half. The defendant cut all the rye growing on the land so set to said Cornelia, and the plaintiff took one half thereof from the field and placed it in his barn ; the defendant removing the remainder, and appropriating the same to his own use. The defendant took all the rye, so placed in the barn of the plaintiff, and carried it away and converted it to his own use.”</p> <p>It was agreed that the plaintiff should have judgment, if he could recover on these facts ; otherwise, that the defendant should recover his costs.</p>

This was an action by a deputy sheriff, to recover damages of the defendant, for taking away and converting to his own use a house which the plaintiff had attached as the personal property of a third person. • The case was submitted to the court on the following facts ; Asher Danolds heretofore had a lease from Daniel Spaulding of a certain mill privilege, saw mill &c. Said lease was similar to the lease in the margin,* which was afterwards given of the same premises, by…

<p>Writ of entry. David Alexander, one of the tenants, was defaulted. Hall, the other tenant, pleaded nul disseizin, and a trial was had before Dewey, J. at the last May term. The demandant claimed title under a levy of execution, made on the 30th of April 1832. The fees and expenses of said levy, as taxed by the officer who made it, and which were included in the amount for which it was made, were $ 20-95. The tenant, Hall, insisted that certain fees and charges so taxed by said officer, to the amount of $7-80 were illegal, and that the levy was thereby rendered void. The question, whether said tenant’s objection to the levy should prevail, was reserved for the consideration of the whole court.</p>

<p>Trespass upon the case for malicious prosecution. The declaration contained three counts, charging three distinct prosecutions of the plaintiff by the defendant.</p> <p>To support the first and second counts, the plaintiff gave in evidence two several complaints to a magistrate, signed and sworn to by the defendant; one of them charging the plaintiff with forging an execution in favor of the defendant against Henry Burton, and the other charging the plaintiff with forging a complaint and warrant against John Reed and his wife; also two several warrants, issued by the magistrate, on said complaints, upon which warrants the plaintiff was arrested. These complaints and warrants were dated February 12th 1839.</p> <p>To support the third count, the plaintiff gave in evidence a complaint to a magistrate, signed and sworn to by the defendant, charging the plaintiff with forging a record of a magistrate ; but he did not give in evidence any warrant issued on said complaint, nor prove that he was arrested and held to answer to the complaint, except by parol testimony.</p> <p>The plaintiff was arraigned before a justice of the peace, who made the following record, and no other, of the proceedings before him : “ Berkshire ss. At a justice’s court holden before me, at house of Franklin Bartlett, in Adams, on Wednesday, 13th day of February 1839, at one of the clock in the afternoon, Commonwealth vs. Franklin O. Sayles, on the complaint of Peter Briggs, Esq., for forgery. After full hearing in the case, the complainant withdrew his prosecution, and it was thereupon ordered by me the said justice, that the said Franklin O. be discharged.”</p> <p>The plaintiff offered parol testimony of the said justice and others, that he was arraigned on all the aforesaid complaints, and pleaded to the same, and that a hearing thereon was had before said justice, who discharged the plaintiff. The defendant oh jected to the admission .of this testimony. But, as it appeared that no record had been made, by -said justice, of the proceed ings had before him, except that above set forth; and as it further appeared that said justice was no longer a justice of the peace under the commission held by him at the time of the trial and hearing of said cases before him, and that he had declined to qualify himself as a justice under a new commission which he had since received, and had also declined to make any further record in relation to said proceedings; the judge, before whom the trial was had, ruled that it was competent for the plaintiff to introduce parol evidence, if not contradictory to said record, to prove the issuing of the warrant on the third complaint, and also that the plaintiff was arraigned on all said complaints, and pleaded to the same, and that, upon a hearing before said justice, he was, by said justice, discharged therefrom. The proposed evidence was thereupon admitted, and a general verdict was returned for the plaintiff, which is to be set aside, and a new trial granted, if said ruling was erroneous.</p>

<p>Debt to recover the gross damages assessed for the plaintiffs, by a sheriff’s jury, against Stephen Stevens, under proceedings upon the Rev. Sts. c. 116, making provisions respecting the erection and regulation of mills. The action was founded on § 24 of said chapter, which authorizes a party, who has obtained a verdict for annual compensation, or gross damages, for the flowing of his lands by means of a mill dam, to recover such damages, in an action of assumpsit or debt, “ against the person who shall own or occupy the mill when the action is brought.”</p> <p>At the trial before Dewey, J. at the last May term, the facts, which are hereinafter stated in the opinion of the court, were proved or admitted, and the case was taken from the jury, un der an agreement of the parties, that if the plaintiffs, on those facts, were entitled to maintain the action, the defendant should be defaulted : Otherwise, that the plaintiffs should become nonsuit.</p>

Assumpsit to recover the amount of two orders, drawn by the selectmen on the treasurer of the town of Colerain, in favor of the plaintiff, and dated January 31st 1840.

<p>Under the Rev. Sts. c. 46, $ 19, a notification, signed by “ J. D. chairman of the board of overseers of the poor” of a town, and sent to the overseers of the poor of another town, requesting them to remove a pauper, is sufficient, if otherwise in due form.</p> <p>Although a notification, given by overseers of the poor, stating that A. and his wife and four children have become chargeable, &c. is defective, if A. have more than four children in his family, yet if such notification be answered, without objection to its generality, that objection is thereby waived.</p> <p>An erroneous statement, made by the overseers of the poor of the town of A. in a notification sent by them to the town of B., respecting the means by which a pauper therein mentioned acquired a settlement in B., does not estop the town of A., in a suit against the town of B. to recover for the support of such pauper, to show that he acquired a settlement in B. by different means from those which were stated in the notification, unless that statement was made with a design to mislead.</p>

<p>This was an action for a breach of a covenant of warranty in a deed conveying land in Whately.</p> <p>The following report of the case was made by Dewey, J. before whom it was tried : The plaintiffs offered, in the first place, a common deed of warranty made to them by the defendants, dated May 4th 1830, conveying “a certain tract of land lying in Whately, on Eastern Mountain, so called, bounded as follows ; namely, beginning at the northeast corner of Seth Crafts’s land, on a town way, running west on Seth Crafts one hundred and eleven rods ; thence south on Joel Munson; thence east on Calvin Wells eighty-eight rods and three links, to a town way ; thence north on said way to the first-mentioned boundary, being twenty-eight rods and five links wide, containing seventeen acres and thirty-nine rods.” The plaintiffs also offered two deeds ; one from Elijah Dickinson and others to John and Seth Crafts, dated December 17th 1790 3 and one from William Allis to the same, dated April 18th 1795 ; and it was agreed that the land conveyed by these deeds was the tract in controversy, and that the defendants are the heirs at law of said John Crafts. It was also agreed, that the plaintiffs entered into peaceable possession, under their said deed from the defendants, of May 4th 1830, and continued in such possession until the year 1834, when the said Seth Crafts dispossessed them of so much of the land thus entered upon, and claimed by them as conveyed by said deed, as lies between a certain stone wall and the northern line of the land thus claimed by the plaintiffs under said deed, being a strip 35 links in width and 30 rods and 10 links in length ; and that said Seth and his grantees have ever since continued in possession of said strip.</p> <p>The plaintiffs here rested their case.</p> <p>The defendants then introduced a quitclaim deed from Seth Crafts to John Russell and others, heirs of said John Crafts deceased, dated April 14th 1827, in which said Seth released to said heirs “ a certain tract of land lying in Whately on Eastern Mountain, so called, bounded east on a town way ; north on land this day deeded to said Seth by the heirs of John Crafts; west on Joel Munson’s land ; south on land this day set off .to Lydia Crafts, and Eleanor Russell, wife of John Russell jr.” Also a warranty deed of the same date, from the heirs of said John Crafts to said Seth Crafts, conveying “ a certain tract of land lying in Whately, on Eastern Mountain, so called, bounded east on a town way; south on land this day deeded to John Crafts'1 s heirs by Seth Crafts; west on Joel Munson’s land ; north on Uro tas and Simon Dickinson’s land ; to contain twenty-four acres more or less."</p> <p>These deeds were offered by the defendants to prove a divis - ion of the land which was conveyed to said John and Seth Crafts by the aforementioned deeds of Dickinson and Allis. The plaintiffs objected, that the deeds, thus offered by the defendants, were void for uncertainty, inasmuch as the descriptions therein contained were not sufficient to designate the land.</p> <p>The defendants then offered parol evidence to designate the land referred to in said deeds. The plaintiffs objected t<5 the admission of this evidence : 1st. Because the alleged ambiguity was patent, and could not legally be explained by parol evidence : 2d. Because, if said deeds were not void for uncertainty, their legal effect would be to give to Seth Crafts one half of the premises to be divided, or else the exact quantity of twenty-four acres, being the quantity named in the deed from the heirs of John Crafts to said Seth Crafts.</p> <p>For the purpose of the trial, the evidence offered by the defendants to explain the deeds and designate the land, was admitted. It appeared by this evidence, that up to the year 1825, Seth and John Crafts occupied, in common, the whole of the tract conveyed by the abovementioned deeds of Dickinson and Allis ; that in 1825, they proposed to divide the premises between them, and for that purpose procured a survey to be made, and erected a fence near the centre of the lot, running across it; which fence stood, and the principal part of it still stands, on the north line of the land conveyed by the defendants to the plaintiffs. No deeds were exchanged at the time, nor was there any exclusive occupation on either side of the fence, until after the death of John Crafts, who died in 1826. After his death, the judge of probate issued a commis sion to David Stockbridge, Oliver Morton and John White, requiring them to assign dower to the widow of said John, and to sever and divide the estate, or any part thereof, from that of any other person with which the sáme might lie in common, and to divide the remainder of said John’s real estate among his heirs. On the 13th of April 1827, said commissioners, m the discharge of their duties under said commission, met said Seth Crafts and the heirs of said John Crafts ; and it was proposed to set out to the parties, in severalty, as their respective shares, to said Seth, the land north of the fence aforesaid, and to the heirs of said John, the land lying south of said fence. The parties verbally assented to this proposition, and Dexter Crafts, the son and agent of said Seth, paid one dollar, on the part of said Seth, for the right of taking the part north of the fence.</p> <p>Said David Stockbridge testified that the commissioners did divide the land between said Seth and the heirs of said John, taking the fence as the division line, but that no return of said division was made, nor was there any such division in writing under the hands of the commissioners.</p> <p>In the further proceedings for dividing the land of John Crafts among his heirs, said commissioners treated and considered the said fence as indicating the dividing line between the land of said Seth and the land of the heirs of said John ; though the fence is not mentioned in the return of their proceedings.</p> <p>The said Seth, and the heirs of said John, and those claiming under them, went into immediate occupation, and continued to occupy according to said fence ; said Seth occupying north, and said heirs, and those claiming under them, south of said fence, until 1834, when said Seth entered and dispossessed the plaintiffs, as above mentioned.</p> <p>Dexter Crafts, a son of said Seth, testified that John White, one of the said commissioners, called on him and told him tha! he (White) understood there was an agreement to divide the land, and that the commissioners would sanction it, and that they wished to have deeds passed, and that Calvin Wells, husband of one of the heirs of said Seth, was present at this conversation.</p> <p>The plaintiffs then offered evidence, (the defendants objecting) from which it appeared that in the original survey, and in establishing the fence, it was the intention of the parties to divide the land into two equal parts. They also showed, by a survey made in August 1840, that the quantity of land was 47 acres and 28 rods, and was not equally divided by said fence, the north part falling short in quantity 117 rods of land. This error was discovered in 1834, by said Dexter Crafts ; and there, was no evidence that it was discovered before that time.</p> <p>The plaintiffs also showed, that if said Seth Crafts had title to twenty-four acres, his land would extend over the land in controversy, as far south as the said stone wall.</p> <p>By consent of the parties, the case was taken from the jury, under an agreement that if, upon such of the foregoing facts as were shown by competent evidence, and all proper inferences to be drawn from them by the court, the plaintiffs are entitled to recover, the defendants should be defaulted ; otherwise, that the plaintiffs should become nonsuit.</p>

<p>Where two justices of the quorum administer to a poor debtor, committed on execution, the oath prescribed by the Rev. Sts. c. 98, § 9, but state in their certificate to the jailer, that they administered the oath prescribed by St. 1816, c. 55, they may amend such certificate by conforming it to the truth, even after action brought upon such debtor’s bond for the liberty of the jail limits 3 and such amended certificate will avail the defendants in such action.</p>

<p>When a deposition is taken in another State, under a commission, and the deponent is inquired of respecting letters written by a party to the suit, and is requested to annex such letters or copies thereof to his deposition, he is not bound to do either: The most that can be required of a deponent in such case, is, to furnish such extracts from letters received by him as relate to the subject of inquiry, upon being paid a reasonable charge for making such extracts.</p> <p>A deponent, in a deposition taken in another State, under a commission, in answer to an interrogatory, whether he had had any “ communications v with the defendant, at whose request the deposition was taken, or with any person known or supposed to be his agent, relating to the subject of the deposition—answered, fully and explicitly, that be had not: In the next interrogatory, the deponent was asked whether he had received or seen any “ letter or letters ” respecting the subject matter of the deposition $ and if so, from whom and to whom, and what were the contents of such letter or letters 5 and he was requested to annex the original letters, or copies, to the deposition: The deponent answered, that immediately after suit was</p> <p>brought against the defendant, the defendant informed him thereof by letter, and stated that he should be obliged to call on the deponent to attend court or give his deposition 5 that the deponent afterwards received several letters from the defendant, in which said suit was occasionally referred to, but that all those letters were principally made up of private matters usually contained in letters between friends, and that he therefore declined to send either the originals or copies, as part of his deposition. Heldt that the deposition was admissible in evidence, as it did not appear, on the face of it, that the deponent practised any evasion.</p>

<p>Indebitatus assumpsit for work done for the defendants, ail incorporated manufacturing company The plaintiff claimed for seven or eight months’ work $ 121-84, and credited $ 61-90 as paid to her. .Balance demanded, $ 59-94.</p> <p>At the trial in the court of common pleas, the defendants admitted that the plaintiff had done the work for which she sought to recover payment, and tney did not object to the price at which she had charged it: But they “offered evidence tending to show that they had adopted a regulation which required all persons to give them four weeks’ notice of an intention to quit their service, and that the plaintiff, knowing that regulation, when she went into their employ, left their service without giving such notice; and they contended that if the jury were satisfied of these facts, the plaintiff was not entitled to recover for the services performed by her. But the presiding judge instructed the jury, that if these facts were proved, they would not operate as a forfeiture of the wages earned ; that if the plaintiff entered into the service of the defendants with a knowledge of such regulation, and left without giving the notice required, she would be liable to the defendants for all damages sustained by them from a want of such notice, and that the amount of such damages, if any had been sustained, might be deducted, in this action, from the amount claimed by the plaintiff.”</p> <p>The jury returned a verdict for the plaintiff for the full balance of her claim, with interest from the service of the writ. Whereupon the defendants alleged exceptions to the aforesaid instructions.</p>

The first count in the indictment against the defendant charged him with stealing the printed sheets of two thousand copies of a certain publication, called the Temperance Harp, of the goods and chattels of William A. Hawley.

Trespass upon the case against the sheriff of Hampshire for an alleged default of William W. Partridge, one of his deputies.

<p>Assumpsit on a promissory note, signed by the defendant in the presence of an attesting witness, dated October 6th 1825, and payable to Putnam & Gregory,' partners, of whom the plaintiff is survivor.</p> <p>The case was submitted to the court of common pleas, on an agreed statement of facts, as follows: “ The defendant was married to Varney Pierce, jr. in 1806, who, in 1816, became insolvent, and left her and went out of the Commonwealth, and did not return till 1818, when he came back and remained with her about a week. He then left her and went to Ohio, where he remained till his death in 1832. He made no provision for the support of his wife and family, after he left her in 1816 ; but she supported herself and family, after he left her, by her own labor, contracting debts and making contracts in her own name. Putnam & Gregory employed her to do work for them, and supplied her with necessaries for the support of herself and family ; and the note in suit was given for the balance of account between the parties.”</p> <p>The court of common pleas rendered judgment for the plain tiff, and the defendant appealed to this court.</p>

The declaration, in this case, alleged that on the 18th of March 1839, Ephraim S. Sprague was indebted to the plaintiffs in the sum of $ 500, and that, for the recovery thereof, the plaintiffs, on that day, sued out a writ returnable to the court of common pleas then next to be held in this county, and summoned the defendant and others as trustees of said Sprague ; and that the defendant, on the 25th of November 1839, entered into the following agreement with the plaintiffs…

<p>The question in this case arose on the answer of Rejoice Newton, who was summoned as trustee of Grout, the principal defendant. It appeared from said answer, that one Kimball, the father of Catharine, the wife of the principal defendant, died in 1819, and that Joshua Harrington was appointed her guardian ; she being then a minor: That upon a settlement of said</p> <p>guardian’s account, in the probate court, after said Catharine was of age and married, he was ordered by said court to pay over to her the amount of her distributive share in her father’s estate, for which said guardian was then responsible.</p> <p>The answer set forth an indenture, made on the 30th of May 1837, by and between the said Grout, and Catharine, his wife, and the said Newton, whereby said Grout and wife transferred and assigned to said Newton a sum of money, which was then due to her from said Harrington, her late guardian, as ascertained by a decree of the probate court; which sum said Newton was to collect and receive “ from any person or persons respon sible for the same,” and to hold the same in trust, and to vest the same in some safe and productive stocks, or upon other safe security, and receive and pay over the income thereof to said Catharine, during her coverture, &c. as hereinafter stated in the opinion of the court.</p> <p>The answer of said Newton further set forth, that on the 1st of November 1838, he settled the aforesaid decree of the probate court with S. Wood, one of the sureties of said Harrington, as guardian as aforesaid, and received of him, in full discharge and payment of said decree, $639‘90, in money, and a promissory note, payable to said Newton, for $ 2000, with interest. On the same day, said Newton paid said $639-90 to said Grout and wife, and took their receipt therefor on the back of said indenture. On the 1st of June 1839, said Wood paid said note to said Newton, and afterwards, on the same day, service of this process was made on him. He immediately deposited the money received in payment of said note in the Worcester Bank, to his own credit, as trustee of said Catharine.</p> <p>It was further stated in said answer, that an assignment of the sum due on said note had been made by said Grout and wife to O. Adams, dated October 31st 1838, which had been exhibited to said Newton, and that said Adams had demanded of him payment of said money, by virtue of said assignment.</p> <p>This case was argued at September term, 1840.</p>

<p>A woman, before marriage, conve) ed to a trustee, with the assent of her intended husband, all the property, real and personal, which she then had, or might acquire after marriage, to be held by such trustee for her sole and separate use, and re served to herself, in the instrument of conveyance, full power to dispose of all such property, by will or otherwise : After marriage, she purchased and took a deed of real estate, which she, jointly with her husband, conveyed to the same trustee, for her sole and separate use: She afterwards executed her last will, thereby disposing of all the real estate, which had been “ reserved ” by her, and also of all such real estate as she might die seized and possessed of, which she might thereafter purchase t After the execution of the will, she purchased real estate of which she was the legal owner at her decease. Held, that she might lawfully dispose, by will, of all the estate which had been conveyed, as aforesaid, to the trustee, before the will was executed 3 and that the will ought to be admitted to probate, although the real estate, acquired by the testatrix after the will was executed, might not pass thereby.</p>

<p>A first mortgagee who makes an entry for condition broken, according to the provisions of the Rev. Sts. c. 107, $ % but permits the mortgagor to remain in possession as before, without accounting for rents and profits, does not render himself liable to account with the second mortgagee for the rents and profits, although he makes such entry for the purpose of preventing the creditors of the mortgagor from attaching the crops growing on the mortgaged premises.</p>

<p>Though an officer, who sells attached goods to the attaching creditor, does not receive money therefor, yet if he wrongfully applies the sum for which they are sold, towards the discharge of such creditor's execution, by taking his receipt thereon for such sum, he is liable, in an action for money had and received, to the party legally entitled to the proceeds of the sale.</p> <p>Where attached goods are sold by consent of parties, pursuant to the Rev. Sts. c. 90, $ 57, and the attaching creditor does not recover judgment until after the first publication of notice that a warrant has issued, under St. 1838, c. 163, against the estate of the owner of such goods, the right to the proceeds of the goods thus sold passes to the assignee by the assignment of such owner's estate.</p> <p>In a suit prosecuted by an assignee of an insolvent debtor, under St. 1838, c. 163, for any debt, right, &c. due or belonging to such debtor, the assignment is conclusive evidence of the plaintiff’s authority to sue, although there may have been irregularities and errors in the preliminary proceedings: The question whether there are irregularities and errors in those proceedings, sufficient to supersede the assignment, may be brought before the supreme judicial court, on petition by any person aggrieved, and the assignment will thereupon be adjudged, once for all, to be valid or invalid.</p> <p>Under § 19 of said statute, a judge of probate or master in chancery may, on petition of a creditor, lawfully issue a warrant appointing a messenger to take possession of the estate of the debtor, without first giving the debtor notice of such petition.</p>

Writ of Entry, in which the demandants, as heirs of Alpheus Fay, demanded possession of two undivided fifth parts of a tract of land in Southborough, called the Bellows farm.

The defendants were called upon, by a writ of scire facias, to show cause why a writ of execution for possession and for costs should not issue against them on a judgment recovered by the plaintiffs, as administrators of the estate of Andrew Sigourney, against Nathaniel Stockwell, in a real action, at the March term, 1840, of the court of common pleas in this county.

This was a writ of entry to recover one undivided seventh part of a tract of land in Douglas, which was formerly owned by Aaron Marsh, the father of the female demandant, and was set off, under the provisions of his will, to his widow, during her life.

Assumpsit by the indorsee of the following note: “Norridgewock, Me. April 1st 1837. For value received I promise to pay Albert G. Manley, or his order, three hundred dollars, at the Lincoln Bank in Bath, on the first day of September, 1838, with interest after the first day of' July next.

<p>Bill in equity, in which the plaintiffs described themselves as £t assignees of Simon H. Allen, late of Shrewsbury, an nsolvent debtor, and assignees also -of said Allen and of William Pratt, deceased, late partners in business, under the firm of Simon H. Allen & Co.” The bill alleged, that on the 1st of January 1839, and long before, said Allen & Pratt were partners, and that during their partnership, viz. on the 13th of May 1833, they purchased half an acre of land in Shrewsbury, and erected a brick store thereon for their use and accommodation, in their partnership business ; that said land was purchased, and saic store erected, with the joint funds of said partners, to the amount of $ 3000, and that the same was considered and used by them, during their joint lives, as partnership property ; that on or about the 1st of February 1839, while said partnership was subsisting and their business carried on in said store, said Pratt died, leaving a widow, Eliza S. Pratt, a minor daughter, Clara Pratt, his only heir at law ; that administration on his estate was committed to said Pliny Merrick, who represented the same to be insolvent, and obtained license from the probate court to sell all the real estate of said Pratt for the payment of his debts : That by operation of law, one undivided half of said land and store has descended to and vested in said Clara, subject to the right of dower of said Eliza S. ; and that since the decease of said Pratt, the rents and profits of said store, to a large amount, have been received by, or to the use of, said Clara : That the equitable interest in said land and store belongs to the joint creditors of said partners, and ought to be sold and disposed of for their benefit, by the plaintiffs, as assignees of said firm : Wherefore the plaintiffs prayed relief in equity, inasmuch as they had no plain, adequate and complete remedy at law, either to obtain seizin of said land and store, for the purpose of selling the same, pursuant to the insolvent law of the Commonwealth, or to obtain a discovery of the amount of rents and profits received as aforesaid — and that the court would appoint a guardian ad litem to said Clara, and decree that said Merrick should release all right and claim to said land and store ; that the guardian of said Clara, when appointed, should convey to the plaintiffs all her right and title to said land and store, and discover and state the amount of the rents and profits thereof which have neen paid to her use, since the decease of said William, her father, and that all such rents and profits should be paid to the plaintiffs, or such part thereof as the court shall judge to be just and equitable — and for further relief.</p> <p>It was agreed that the bill should be considered as demurred to, with the following modification of the allegations therein :</p> <p>“ Simon H. Allen and William Pratt agreed to become partners in trade, on or about the 13th of May 1833 ; and, at their request, one Nymphas Pratt, on the 16th of said May, purchased the land on which they afterwards erected the store mentioned in the bill, and took a deed running to said Allen & Pratt. On the 20th of said May, said Allen & Pratt entered into written articles of partnership, and subsequently to this, they paid, as partners, the amount of the purchase money agreed to be paid for said land, but did not commence trade in merchandize until after that period. The materials for the store were purchased by the company, and the building thereof was superintended by them jointly.”</p> <p>This case was argued at the last October term, and again at the present term, by Burnside, for the plaintiffs, and by Wash-burn, for the defendants ; and the opinion of the court was declared at the April term, 1843.</p>

<p>Writ of error to reverse a judgment recovered by the defendant in error against the plaintiff in error, at the December term, 1837, of the court of common pleas. The original writ against the plaintiff in error was served on the 20th of November 1837, by leaving a summons at her last and usual place of abode m Athol. The error assigned was, that at the time of the service of the said original writ, and at the time of the rendition of said judgment, the plaintiff in error was insane. Issue to the country.</p> <p>At the trial, the insanity of the plaintiff in error, in the spring of 1837, either resulting from or connected with a violent disease, was both proved and admitted. Evidence was offered by the defendant in error, tending to prove that she (the plaintiff in error) recovered, her reason during the following summer, and continued sane till she was carried to the house of correction in Worcester, on the 10th of November 1837 ; and evidsnee was offered by the plaintiff in error, tending to prove that she continued insane during that period.</p> <p>The jury were instructed, “ that the insanity of the plaintiff in error, in the spring of 1837, being proved and admitted, the burden of proof was on the defendant in error to show that she had so perfectly recovered her mind, as to be the proper subject of a suit, at the time of the service of the original writ upon her; and that if the jury were satisfied that she had recovered her mind during the summer or autumn of 1837, the burden of proof was then shifted upon her to show the insanity at the time of the service of the writ and the rendition of the judgment in the original action.”</p> <p>The jury returned a verdict for the plaintiff in error, and the defendant in error alleged exceptions to the said instructions.</p>

<p>Assumpsit on the money counts. The action was against Jesse Stedman, Henry Barnard and Otis P. Sheldon. The plaintiff filed a bill of particulars, in which he claimed, among other things, the amount of certain losses in- manufacturing, in part of which the firm of Darling & Bellows were interested.</p> <p>In appeared from the report of the evidence given at the trial before Hubbard, J. that as early as December 1835, the plaintiff, and the defendant Stedman, were engaged in business together in such a manner that Stedman sent wool to the plaintiff to sell or manufacture, and that the plaintiff was engaged in manufacturing such wool, by employing John Jepherson, and also by employing Darling & Bellows to work the same by the yard, and that the cloths, when manufactured, were sold by the plaintiff, who shared with Stedman in the profit and loss of the manufacturing and sales.</p> <p>On the 10th of February 1836, the three defendants were to gether at Stedman’s house, in Chester, Vermont, for the purpose of forming a partnership ; and in the conversation previously to entering into articles of partnership, Stedman stated to the other defendants the kind of business which he was then carrying on with the plaintiff, and proposed to give them the benefit of the contract with the plaintiff. The defendants, on that day, entered into a written and sealed contract of partnership, by which they were to continue partners for “ one year, ending the 20th of February 1837, under the firm of Stedman, Barnard & Co.” 1/ was a part of said contract that Troy (N. York) should “ be the seat of business for this company.” The 5th article of this contract, (which is hereinafter recited in the opinion of the court,) set forth the business which was to be transacted by said firm.</p> <p>No business was done by Stedman, Barnard & Sheldon, as partners, after the 20th of February 1837.</p> <p>On the 25th of April 1836, the plaintiff entered into a eon-tract with Darling & Bellows for the manufacturing by them of wool into cloth, for a certain sum per yard ; they to share one fourth part of the profits or losses of the business.</p> <p>On the 28th of April 1836, Stedman and the plaintiff entered into a written contract under seal, signed by Stedman, in the names of “ Stedman, Barnard & Sheldon ” and by the plaintiff as in the margin.*</p> <p>The contracts aforesaid between the plaintiff and Darling & Bellows, and between the plaintiff and Jepherson, to manufac' ture wool by the yard, were terminated by the parties in January 1837, and nothing was done under those contracts after that month."</p> <p>There was evidence tending to prove that a duplicate of the aforesaid contract of the 28th of April 1836, (which was pro duced in court by the defendants’ counsel,) was forwarded from Worcester to Troy, on the 8th of November 1836, directed to Stedman, and that it was filed with the papers of the firm of Stedman, Barnard & Sheldon ; that in March 1837, it was seen in the hands of Barnard, at Troy, when Sheldon was there ; and that it was in Barnard’s possession, in the city of New York, in November 1841. But it was not shown, by any positive proof, that this contract was ever seen by Sheldon. The plaintiff introduced other evidence, for the purpose of showing that Barnard & Sheldon had authorized Stedman to execute the said contract of April 28th, or had ratified it afterwards.</p> <p>The defendants, Barnard & Sheldon, contended that as to the plaintiff’s claim for losses in manufacturing, they were not liable, inasmuch as they were not partners with the plaintiff; that although they were interested, by their contract with Stedman, in the profits, if any, of his contract with the plaintiff, and might, as between themselves and Stedman, be liable to share in the losses, yet they were not thus liable to the plaintiff. And they requested the judge to rule that the contract of April 28th 1836, being under seal, was not binding on them, without a previous authority or subsequent ratification thereof by them under seal. But the judge instructed the jury, that if Barnard & Sheldon assented to or ratified this contract, they would be bound by it, and that this might be by parol authority previously given, or by acts or parol admission, or by acts without any parol admission afterwards ; provided the acts were such as would not have been done if such assent had not been given.</p> <p>The defendants, Barnard & Sheldon, further requested the judge to rule that if they had no knowledge of the contract of April 28th 1836, until after the expiration, on the 20th of February 1837, of their contract of partnership with Stedman, they would not be bound by a mere silent assent thereto, but that an express assent thereto was necessary. But the judge instructed the jury, that if the business of the partnership had not been closed when said contract of April 28th came to their knowledge, they would be bound by it, if they assented to it, and that such assent need not be proved by express words on their part.</p> <p>The jury returned a verdict for the plaintiff; and on being inquired of, they answered that they found a ratification, by all the partners, of the contract of April 28th 1836.</p> <p>The defendants, Barnard & Sheldon, by their counsel, alleged exceptions to the several aforesaid rulings and instructions.</p>

This was an action of trespass for an alleged false imprisonment by a commitment of the plaintiff to the house of correction in Worcester, and his being held there in custody, for thirty days, by virtue of a mittimus made and issued by the defendant as a justice of the peace.

<p>Where it is ascertained by partners, who are about closing their partnership concerns, that a balance will be due to one of them on a final settlement, although the exact amount of such balance cannot be ascertained, yet if the debtor partner gives the creditor partner a promissory note for a sum not exceeding the amount of the balance which will be due on a final settlement, such note is given on a good and sufficient consideration, and payment thereof may be enforced by action at law, though the balance is not struck between the partners.</p>

<p>The Western Rail Road Corporation are not liable to be taxed for the land, not exceeding five rods in width, over which they were authorized to lay out their road, nor for buildings and structures thereon erected by them, if such buildings and structures are reasonably incident to the support of the road or to its proper and convenient use for the carriage of passengers and property—such as houses for the reception of passengers, engine houses, car houses and depóts for the convenient reception, preservation and delivery of merchandize carried on the road.</p>

<p>Assumpsit to recover expenses incurred by the plaintiffs in support of Lucinda Hale and Tamar Hale, paupers, whose settlement was alleged to be in Boxborough.</p> <p>The following facts were agreed by the parties.: Boxborough was incorporated, as a district, February 25th 1783, by St. 1782, c. 41, which is made part of the case. A part of the territory thus incorporated, called the Davis farm, had been, until said incorporation, a part of the town of Harvard. Isaac Hale had a settlement in Harvard, by virtue of his residence on the Davis farm. He died before 1783. William Hale, the son of said Isaac, had left Harvard before 1783, having resided on the Davis farm with his father, until he left; and at the time of said incorporation he was residing, and at the time of his death, which was in 1787, he did reside, in other parts of the Commonwealth, never having returned to Harvard or Boxborough ; but he gained no settlement, in his own right, in any other town.</p> <p>Lucinda Hale and Tamar Hale are the children of said William, and have gained no settlement in the Commonwealth, in their own right. They had fallen into distress and were relieved by the plaintiffs, before the commencement of this action; of which the defendants received due notice.</p> <p>There are no means of ascertaining whether said William Hale was or was not twenty-one years old when he left the Davis farm, nor whether the paupers were or were not born before the said act of incorporation. If they were born before that time, they were infants at the time.</p> <p>The parties agreed that, upon these facts, judgment should be rendered for the plaintiffs, for $77-23, or for the defendants, a» the court should order.</p>

<p>Assumpsit on a promissory note for $544-46, signed by the defendants, dated November 14th 1839, payable to Bryant & Hapgood or order, on demand with interest, and by them mdorsed to Hutchins Hapgood, the plaintiffs’ testator</p> <p>At the trial in the court of common pleas, evidence was introduced tending to prove the following facts : In the year 1838, said Bryant & Hapgood placed a quantity of boots in the hands of the defendants, to be sold on commission ; and before the 16th of July 1839, the defendants sold them to divers persons .— the whole sales amounting to $ 915. On the 12th of July 1839, Bryant & Hapgood called for an account of sales, which the defendants rendered on the 15th of said July. This account showed sales to ten different individuals, extending from September 18th 1838 to July 15th 1839, and among others, a sale on the 5th of July 1839 to Shipman & Co. of Newark, (New Jersey,) of boots, to the amount of $ 180, on a credit of eight months. The account, thus rendered, contained the charges upon the property, and showed a balance in favor of Bryant & Hapgood, of $ 858-42. Against the balance thus stated, was this memorandum : “ Due by average, if collected, September 1st 1839.” The defendants’ letter, which accompanied the account, stated that they had as yet received pay for only two items of sales (naming them, and not including the sale to Ship-man & Co.) and directed Bryant & Hapgood to charge them (the defendants,) u with sales due September 1st, $ 858-42.” The defendants, at the same time, remitted to Bryant & Hap-good $220, on account, who, on the 19th of the same July, acknowledged the receipt of the said account and letter. On the 14th of November 1839, the defendants .paid Bryant & Hap-good $ 100, and gave them the note now in suit. No agreement was then made, and no conversation had, respecting the sums wmch had not been collected by the defendants on account of sales of Bryant & Hapgood’s property; but an account was stated, referring to the account rendered, as above mentioned ; and the note was given for the balance of the account thus stated, with interest from September 1st 1839.</p> <p>Before the expiration of the term of credit given to Shipman & Co., they became insolvent, and have paid no part of said sum of $ 180. They were in good credit at the time of the sale, on the 5th of July 1839, and both before and after that day, the defendants had made sale to them of goods belonging to themselves, and subsequently took their negotiable promissory note, dated July 5th 1839, which included the amount of the sales of the defendants’ own goods, and the $ 180 due upon the sale of Bryant & Hapgood’s property. This note was payable in eight months from date, and was given soon after said 5th of July. The precise sum, for which this note was given, did not appear ; but it was between $ 800 and $ 1200. The defendants never communicated the fact to Bryant & Hapgood, that they had taken such a note, nor was any evidence introduced tending to show that Bryant & Hapgood had any knowledge of it.</p> <p>The defendants, at the trial, tendered to the plaintiffs a note recently made and signed by Shipman & Co. for $ 180, dated July 5th 1839, payable in eight months to the order of the defendants, and by them indorsed “ without recourse.”</p> <p>The defendants did not receive a guaranty commission on the sales.</p> <p>Upon the evidence of these facts, the defendants contended that the consideration of the note, to the extent of $ 180, had failed ; and they proposed to submit the question to the jury, whether it was not the intention of the parties, at the time the note was given, that the defendants should not be held accountable for the $ 180, unless they should receive it of said Shipman & Co., or should fail so to receive it, through their own negligence. But the judge, who presided at the trial, declined to submit this question to the jury, and instructed them that if the foregoing facts were proved to their satisfaction, they should return a verdict for the plaintiffs for the full amount of the note ; which the jury did accordingly. The defendants thereupon alleged ex ceptions to said instructions.</p>

<p>Assumpsit to recover of the defendant, as surviving partner of the late firm of P. Blodgett & Co., $146-81, and interest since July 9th 1839. The plaintiff counted on a note, and the money counts were added. At the trial in the court of common pleas, the plaintiff offered in evidence a note, dated July 9th 1839, signed P. Blodgett & Co., for the above named sum, payable to her.</p> <p>It was admitted, that at the time and long before the note was given, the defendant and Percival Blodgett were partners, doing business in the town of Orange ; and that said Percival Blodgett was administrator of the estate of George Blodgett, deceased, jointly with Stdlman Blodgett, who absconded in 1839.</p> <p>The defence was, that the note was given for the amount of a dividend due to the plaintiff from the administrators of George Blodgett, and that it was not authorized by the defendant.</p> <p>The plaintiff contended, and asked the court to instruct the jury, that if the money, due to her from the estate of George Blodgett, had been taken and applied to the partnership concerns before the giving of the note in question, and was so represented by Percival Blodgett to the plaintiff, at the time of his giving the note, said Percival had authority to give the note, and that it would be binding upon the firm. The court refused so to instruct the jury, and instructed them, that unless the money was substantially on hand at the time of giving the note, and that it was then borrowed, or represented to the plaintiff to be borrowed, for company purposes, it would not bind the firm ; and that the plaintiff could not recover in this action, unless the transaction constituted a loan made at that time.</p> <p>The plaintiff further contended, and asked the court to instruct the jury, that if Percival Blodgett represented to the plaintiff, at the time of giving the note, that he wanted the money for company purposes, and that he would give the company note for it, it would bind the company, though the money were not on hand at the time of giving the note, but had previously been applied to company purposes, or to the concerns of the company. But the court instructed the jury, that the money must have been substantially on hand, at the time of giving the note, to authoase the giving of the note so as to bind the firm.</p> <p>A verdict was returned for the defendant, and the plaintiff alleged exceptions to the said mstructions.</p>

<p>Trover for timber. At the trial in the court of common pleas, the plaintiffs, to prove their title to the timber, gave in evidence a mortgage deed made to them on the 1st of September 1840, by one McDavit, conveying to them, among other things, all the wood and timber, cut and uncut, which he had formerly bought of them, to secure the payment of a certain sum on the 1st of January 1841. This deed was recorded in the office of the clerk of the town of Milford, on the day of its date, but was not recorded in the registry of deeds for the county of Worcester.</p> <p>The plaintiffs also gave evidence tending to prove that on said 1st of September, they sold to said McDavit a quantity of wood and timber, then on their land, part of which was cut and lying on the land, and part uncut and standing : That said McDavit at the same time executed the mortgage deed aforesaid ; that he afterwards cut and disposed of said wood and timber, from time to time, and that a part of said timber, viz. 1450 feet thereof, which is the subject of this action, was sold by him to the defendant, on the 26th of July 1841 ; and that the plaintiffs, on that day, exhibited said mortgage deed to the defendant, and demanded said timber, which he refused to deliver to them.</p> <p>It did not appear that the defendant, when he bought the timber of McDavit, had any notice of the existence of said mortgage deed, except that which may be implied by law from the fact that it was recorded as abovementioned. Nor did it ■ appear whether the sale of the wood and timber by the plaintiffs to McDavit was oral, or by deed or other instrument in writing</p> <p>The plaintiffs contended that the said mortgage deed included, as personal property, all the timber growing and cut; or at least all that was cut before the 1st of January 1841, when the debt, which was secured by said mortgage, became payable ; and that if said deed did not include, as personal property, the timber which was standing when it was executed yet the property in said standing timber had never passed to McDavit by any legal conveyance made by them to him in writing ; and that they, being the owners of the land on which the timber was standing, continued to own said timber, and were entitled to recover damages of the defendant for the conversion thereof.</p> <p>The court instructed the jury, that the timber which was uncut and standing on the plaintiffs’ land, when said mortgage deed was made, was real estate, and that the record of said deed in the town clerk’s office did not operate as a constructive notice thereof to the defendant; and that it was therefore incumbent on the plaintiffs, in order to entitle themselves to a ver diet, to prove that the timber sued for had been cut and severed from the freehold, at the time when said mortgage deed was executed.</p> <p>A verdict, was returned for the defendant, and the plaintifis alleged exceptions to the aforesaid instructions.</p>

<p>A testator devised his real estate to his son J. for life, said estate to be under the care and management of his son I., and the profits thereof to be applied to the support of J., during his life ; and if said profits should be insufficient for J.’s support, then that I. should pay the deficiency: The testator then devised the remainder of said estate to his son 1., on condition that I. should support J. during his life, and fulfil the other directions of the testator’s will: I. refused to accept the devise to him and never entered on the estate nor supported J.: T. was appointed guardian of J. and supported him till his death; but the profits of the estate, devised to J. for life, though applied towards his support by T., were not sufficient therefor, and T. advanced money to support him, to an amount nearly equal to the value of the estate devised to and refused by I.: After J.’s death, T. brought a bill in equity against the heirs of the testator, praying that said estate might be sold for the purpose of reimbursing the sums advanced by him for the support of J. Held, that upon the refusal of I. to accept the remainder devised to him, on the conditions thereto annexed by the testator, the same reverted and descended to the testator’s heirs, without any charge thereon in favor of J.; and that the bill could not be maintained.</p>

Assumpsit on a promissory note. The case was submitted to the court on an agreed statement of facts as follows : John Arnold, the defendants’ testator, on the 7th of December 1826, was indebted to Paul Dudley in the sum of $ 53-19, and in discharge of that debt gave him the note in suit, which is in these words : Douglas, December 7th 1826.

<p>Trespass for the breaking and entering of the plaintiff’s close by the defendants’ cattle.</p> <p>It appeared, at the trial in the court of common pleas, that the defendants’ land adjoined the land of the plaintiff upon which the alleged trespass was committed, and that there was no lawful fence between said, lands ; and it was contended by the defendants, that if their cattle escaped from their land and went upon the land of the plaintiff by reason of there being no lawful partition fence, they were not liable to the nlaintiff in an action of trespass, unless they were bound by pi ascription or agreement to repair the deficient fence through which their cattle went upon the plaintiff’s land. But the court ruled u that the defendants were liable, if their cattle escaped from their land and went upon the plaintiff’s land, although the fence between them was deficient; provided the plaintiff was not bound by prescription, or agreement, or assignment of fence-viewers, to keep such defective fence in repair.” The jury returned a verdict for the plaintiff, and the defendants alleged exceptions to said ruling.</p>

<p>Assumpsit on a promissory note made by the defendant for $> 23-33, dated April 15th 1.837, payable to Jonathan G. Wetherby or order, on demand with interest, and by him indorsed.</p> <p>The case was submitted to the court on the following facts agreed : The note in suit was made, on the day it bears date, at Thompson, in the State of Connecticut, where the maker and payee then resided. On the same day, said Wetherby, the payee, indorsed the note in blank, at said Thompson, and then and there delivered it to Leonard S. Wheelock of Grafton in this Commonwealth, in part payment of a debt due from him to said Wheelock. During the night of said day, said Wetherby and his family left Thompson, and removed to Shrewsbury in this Commonwealth, where he afterwards resided. On the 17th of said April, the defendant was summoned as garnishee of said Wetherby, in three suits, brought before a justice of the peace in Connecticut, by citizens of that State. On the 22d of said April, said Wheelock gave the defendant notice that the note had been indorsed to him, and demanded payment thereof; and this was the first notice which the defendant had of said indorsement. The defendant then informed Wheelock that he had been summoned as garnishee of Wetherby. Said note was the only debt which the defendant owed Wetherby, at the time of the service of the process of foreign attachment. The defendr ant did not appear in said suits in which he was summoned as garnishee, and judgments were entered, and executions issued against said Wetherby and the defendant, in the form prescribed by the law of Connecticut; upon which executions the defendant paid the amount of the said note.</p> <p>On the second or third day after Wheelock demanded payment of said note, as aforesaid, he sold and delivered the same to the plaintiff, who was ignorant of the aforesaid suits. The plaintiff has paid to said Wheelock the amount of said note ; but before he paid the amount in full, he was informed by said Wetherby that the defendant had been summoned in the aforesaid suits, on account of said note. The plaintiff afterwards, to wit, on the 2d of May 1837, called upon the defendant and demanded payment of said note.</p> <p>Tt was agreed by the parties, that the laws of Connecticut, “so far as they are competent in the case," might be proved by the printed statutes and reported decisions of the súpreme court of errors of the State ; and that the plaintiff should become nonsuit, or the defendant be defaulted, as the court should decide on the foregoing facts.</p>

<p>This action, which was assumpsit for money had and received, was submitted to the court upon a statement of facts, in substance as follows :</p> <p>The plaintiff is an inhabitant of the town of Princeton, and was taxed there in the year 1840, the sum of $76-20, which he paid. Joseph Mason and Moses G. Cheever, inhabitants of said town, were liable to be taxed and were taxed there the same year ; Mason for $ 100, money at interest, and Cheever for no money at interest. On the 1st of May 1840, said Mason held several mortgages to secure the payment of money, upon which mortgages he had taken formal and actual possession, and the mortgagors were in the occupation of the mortgaged estates, under an agreement that they would pay Mason, as rent therefor, the interest on the debts thereby secured, and the taxes assessed on said estates. At the time of the making of one of these mortgages, it was agreed that said Mason should then take possession ; and after the mortgage was made and possession taken by said M., it was further agreed that the mortgagor should occupy and pay rent as aforesaid ; which was accordingly done. Upon others of these mortgages, actual possession was taken by said Mason, and a certificate thereof, signed by the mortgagors, was recorded m the registry of deeds ; and said M. gave the mortgagors, at the same time, bonds conditioned to extend the time of redemption beyond the term of three years, upon being paid, as rent for the premises, the interest on the several debts secured by the mortgages, and all taxes : The mortgagors engaged to pay the same accordingly, and thereafterwards continued to occupy, under said agreement, until after the 1st of May 1840.</p> <p>At the time of making the valuation of estates, by the assessors' of Princeton, in 1840, said Mason, on being interrogated ;y them, as to money at interest, told them he had only $ 100 at interest, but that he had mortgages to secure $ 1200 and more, upon which he had taken actual possession of the estates mortgaged, and had also taken legal advice, and “ considered that he was liable to pay taxes for said estates, but not for the money at interest, as the statute then stood.”</p> <p>The said Cheever also had several mortgages to secure the payment of money, on which he made, with the mortgagors, an arrangement similar to that last described, which was made by said Mason.</p> <p>The assessors of Princeton, before assessing the taxes for the year 1840, gave legal notice to the inhabitants of the town to bring in true lists of their polls and estates not exempt from tax • ation. And when the assessment of the taxes for that year was made, the assessors had no knowledge of any of said bonds given by said Cheever, to his mortgagors, as aforesaid ; nor did they know of more than one such bond given by said Mason.</p> <p>Said Cheever was inquired of by the assessors, as to his money at interest, and he told them, and offered to make oath, that he had no more money at interest than he paid, interest for.</p> <p>The above mentioned mortgaged estates were all duly taxed in 1840</p>

<p>Referees, to whom a complaint for flowing land by a mill dam was submitted under a rule of court, assessed all past damages done to the complainant by such flowing, up to the time when they returned their award into court, and also assessed future yearly damages, and a sum in gross for all damages thereafter to be sustained: The award was immediately accepted, and judgment rendered thereon; and the complainant seasonably elected to take said sum in gross: The respondent, as soon as the award was published, filed a notice, and gave a copy thereof to the complainant, that he waived all right to flow said land, and that he should not thereafter flow the same, but should draw down the water raised by his mill dam; and he immediately drew down the water accordingly: He also paid to the complainant all past damages, as assessed by the referees, and the costs of the proceedings on the complaint, pursuant to the judgment on the award. Held, in an action by the complainant to recover the gross damages, that the respondent was not bound to pay them.</p>