Volume 46 — Massachusetts Reports

<p>A debtor made three mortgage deeds, at the same time, of the same land, to secure payment of different sums, on the same day, to three of his creditors; The deeds were recorded at the same time, and no preference or priority was intended by the parties z The mortgagor subsequently made partial payments, in different propor- - lions, to each of the mortgagees 3 and after condition broken, he surrendered possession of the land to each of them, on the same day, who entered for foreclosure i One of the mortgagees thereupon filed a petition against the others for partition of the land. Held, that although the mortgagees were tenants in common in proportion to the amount of the balance of their several debts, yet that, until foreclosure, their estate in the land was not the subject of partition.</p>

<p>This was a bill in equity, brought by ten plaintiffs, praying for an injunction to restrain the defendant from carrying on the business of manufacturing soap and candles, and of slaughtering cattle, &c., in the town of Cambridge.</p> <p>The bill alleged that six of the plaintiffs were, and long had been, severally seized and in the actual possession of freehold estates in several parcels of land in said Cambridge, fronting on Pearl Street, in the immediate vicinity of a dense and rapidly increasing population ; which lands would be of great value and in great demand for dwellinghouses, but for the existence of the nuisances hereinafter complained of, and were of comparatively small value for any other purpose than for building lots : That the other four plaintiffs were, and long had been, severally seized and possessed of dwellinghouses in said Cambridge, near to said street, which were severally occupied and inhabited by them, with their several families: That the defendant, for five years next before the filing of the bill, had been, and still was, possessed of a lot of land and buildings, fronting on said street, contiguous and near to the aforesaid lands and dwellinghouses of the plaintiffs ; and that he, about five years since, commenced and has ever since wrongfully exercised and carried on, in and upon his said lot of land and buildings, the trade and business of manufacturing soap and candles, and of slaughtering cattle, and of melting and trying out grease and manufacturing tallow, from the bones and offal of cattle, whereby the air, within and about the beforementioned dwellings and lands of the plaintiffs, had constantly been, and still was, impregnated with noisome, noxious and offensive vapors, fumes and stenches, and had been, during all the time aforesaid, and still was, by means thereof, rendered corrupt, offensive and unwholesome . That the aforesaid lands of two of the six plaintiffs first above-mentioned had been, during the time aforesaid, and still were, flowed and injured by the feculent matter proceeding from the defendant’s slaughter house on his said lot of land : That the said lands of all the plaintiffs had been, and still were, by reason of the said trades so injuriously exercised by the defendant. rendered unsaleable and of no value ; and that the plaintiffs, who own the dwellinghouses abovementioned, and their families, had been and still were greatly harassed and annoyed, their health endangered, and their dwellings rendered uncomfortable and unfit for habitation. The bill further alleged, that the defendant, in the exercise of his business of slaughtering cattle, and as incident thereto, greatly annoyed and injured the plaintiffs, who are last abovementioned, and their families, by filling said street with herds of cattle, and thereby often render ing it impassable with safety or comfort; and also by spreading upon the fences, on both sides of said street, the hides taken from slaughtered cattle, and thereby filling the air with noxious stenches, &c.</p> <p>It was further alleged in the bill, that within two months next before the filing thereof, the defendant’s buildings, in which he exercised said trades, were consumed by fire, and that the plaintiffs had requested him to refrain from rebuilding and from carrying on said trades any longer in that place ; but that the defendant ha-d refused so to refrain, and had avowed his determination to rebuild, and to carry on said trades as before, and had begun and was proceeding in the erection of buildings, &c., for that purpose.</p> <p>The bill concluded with an averment that the plaintiffs had no plain, adequate and complete remedy at law, and a prayer that a writ of injunction might be ordered and issued against the defendant, to desist from recommencing either of said trades in the place or vicinity aforesaid, and that he might be decreed to pay to the plaintiffs, respectively, the damages sustained by them, by reason of his former wrongful exercise of said trades.</p> <p>The defendant’s answer admitted, that in the year 1825 he became the occupant of the lot of land and buildings mentioned in the plaintiffs’ bill, and that in 1828 he became the owner thereof in fee, and had, from his first occupation thereof, there carried on the business of slaughtering cattle, and boiling and trying out tallow, and for the last five years had been there engaged in manufacturing soap and candles ; but he denied that the air within and about the premises of the plaintiffs had been thereby constantly, or during any part of said five years, impregnated with noisome or unwholesome vapors, so as to rendei the same offensive or injurious to the plaintiffs or their families, or that the lands of either of the plaintiffs had ever been flowed or injured by the feculent matter proceeding from the defend ant’s slaughter house. The defendant also denied that either of the plaintiffs, or their families, had suffered any great annoyance or injury, or been rendered greatly uncomfortable by any of the causes set forth in their bill : He admitted, however, that during part of the hot season of some years, prior to 1836, disgusting and offensive vapors, fumes, &c., did proceed from the matter which accumulated about his slaughter house, whereby the air on the plaintiffs’ premises might have been and probably was a little corrupted, and rendered a little offensive and uncomfortable; but denied that such was the fact since the year 1835.</p> <p>The defendant also averred, in his answer, that Wheeler and Gay, from whom, through mesne conveyances, he derived title to his said lot of land, &c., purchased said lot in the year 1816, and in that year erected thereon buildings, &c., suitable for the purpose of slaughtering cattle, and ever thereafter, for seven years next ensuing, there carried on the business of slaughtering cattle and boiling and trying out tallow ; and that the same business was afterwards there carried on by others, excepting two years, until the year 1825, when the defendant became the occupant of said lot and buildings, as above by him stated.</p> <p>The plaintiffs filed a general replication, and evidence was taken by both parties.</p> <p>The argument was had at the last October term.</p>

<p>Where the heirs of K. gave deeds to C. of land which they described as “ the estate on which C. now lives,” or “the estate called the C. farm,” and “being the same whitf was conveyed by M. to K. by deed” bearing a certain date, and it was shown that C., as lessee of K., and otherwise, had previously occupied the whole farm for many years 5 it was held that the deeds passed the right and title of the heirs to the whole farm, although the deed from M. to K., which was therein referred to, did not include the whole.</p> <p>Where several persons in succession enter on land as disseizors, their several possessions cannot be tacked so as to make a continuity of disseizin of sufficient length to bar the owner’s right of entry, unless there is a privity of estate, or their several titles are connected; but where the first disseizor demises the land, and the lessee takes and keeps possession till the lessor’s death, and afterwards remains in posses sion as tenant, either at will or at sufferance, of the disseizee, there is such a connexion of title as preserves the continuity of the disseizin.</p> <p>Notorious and exclusive possession, without right, constitutes a disseizin: So does an entry under a void grant: Therefore where a demandant in a real action admits that there has been adverse possession for thirty years, he cannot set up the objec* tion that the first entry upon him was by mistake as to the boundaries described in a deed, and, for that reason, not a disseizin.</p> <p>A tenant in a real action is not estopped to set up a title by disseizin, by reason of nis having relied, as one ground of his title, upon a deed which was found not to convey the demanded premises.</p> <p>A married woman, whose land is delivered up on a writ of habere facias issued on a judgment against her husband, may make a formal entry on the land, (if her husband does not object,) for the purpose of preventing the statute bar of her right of entry.</p> <p>By St. 1786, c. 13, a married woman was barred of her right of entry, unless she made entry within thirty years next after that right accrued.</p>

<p>Bill in Equity for a specific performance of an agreement for the purchase of land.</p> <p>It appeared from the bill, the answer, and an agreed statement of facts, that the town of Lowell, at a legal meeting on the 2d of March 1835, chose a committee of seven persons to consider the expediency of the erection of a market house by the town, and to report thereon at the next April meeting : That said committee, at a legal meeting of the town on the 6th of April 1835, reported that it was expedient to erect a market house, and that they had found an unoccupied piece of land on Middle Street, which could be procured for 62| cents per foot, and which they recommended as a site for such house ; and that the town thereupon voted that the persons constituting said committee be a committee to purchase said land on Middle Street, to prepare a plan for a market house, to make an estimate of the expense of said house, and to report at the next town meeting : That a meeting of the town was duly held on the 27th of the same April, and that the second article in the warrant for calling that meeting was, “ to hear reports of committees appointed to purchase land and to furnish an estimate of the expense of a market house ; to see if the town will authorize their treasurer to borrow, on the credit of the town, such sum of money as may be necessary to enable said committee to purchase the land and erect a suitable building for a market house, or act on that subject as they think proper : ” That at this meeting the aforesaid committee reported that they had, agreeably to the direction of the town, purchased, for the site of a market house, a piece of land on Middle Street, of the dimensions of “ two hundred and forty feet in width by ninety in depth, at 62| cents per foot, amounting to $ 13,576,” and that the probable expense of such house, (built according to a plan exhibited by them,) would not exceed $ 10,000 : That the committee reported at the same time, that since they had purchased said land on Middle Street, an additional quantity of land, situate on Lowell Street, and adjoining to the land already purchased, had been offered to them, which was one hundred and forty seven feet in width, and ninety in depth, the average price of which was ninety cents per foot, amounting to $ 11,984\52, and which they recommended that the town should purchase ; whereby the. town would be “in possession of five thousand feet of more land, the whole extending from Middle Street to Lowell Street, one hundred and eighty feet in length, by one hundred and forty seven feet in width, containing twenty six thousand six hundred and thirteen feet; ” on the 'entre of which the committee proposed to place the market house, and which, when completed, would extend from street to street: That the town thereupon voted that the said committee be authorized to purchase the land on Lowell Street, and to build a market house one hundred and sixty six feet in length, according to the plan exhibited; and that “ the treasurer of the town be authorized and empowered to pledge the credit of the town to secure any loan which might be procured for the purpose of buying land on which to erect a market house, by signing or executing ' any bond or other security necessary for that purpose, for a sum not exceeding % 40,000 : ” That on the 29th of April 1835, the following agreement was made, and was signed by two members <if said committee, on behalf and at the verbal request of the committee: “ Lowell, April 29th 1835. The committee, appointed by the town of Lowell to purchase lanH erect a market house, agree to purchase Samuel F. Haven’s part of a lot of land on Lowell Street, owned in common with Wright & Mixer, at ninety six cents per square foot. The papers to be made out as soon as practicable, and the title L ascertained to be clear of incumbrance. For the committee John Nesmith. Jonathan Tyler : ” That the plaintiff, on said 29th of April, gave to said committee an obligation to convey said land, for said sum : That a meeting of the town was duly held on the 1st of June 1835, and that the fourth article in the warrant for calling that meeting was as follows : “ To see if the town will authorize their committee, or a major part of them, to borrow, on the credit of the town, a sum sufficient to purchase the land on Lowell and Middle Streets, now contracted for by said committee, in behalf of the town, and erect thereon a building to be used as a market house, and prescribe the manner of effecting a loan, and the terms and duration thereof, and instruct the town treasurer not to pledge the credit of the town for the loan which was voted to be procured, at the town meeting held April 27th 1835 : ” That in acting on said article in the warrant, the town voted that the aforesaid committee, or a majority of them, “be authorized and empowered to complete the purchase of the land, by them bargained and contracted for, of the Proprietors of the Locks and Canals on Merrimack river, situated on Middle Street, and of Joseph B. French, Samuel F. Haven, Elijah Mixer, and Hap-good Wright, on Lowell Street, for the site of a market house for the use and accommodation of the inhabitants of the town ; and that said committee be fully authorized and requested to erect, or cause to be erected thereon, a market house one hun dred and sixty six feet in length and forty five feet wide, con forinably to a plan or model presented to the town ; that said committee or a majority of them be authorized to borrow a sum not exceeding $40,000 on the credit of the town, for the pur pose of purchasing the necessary land and erecting thereon a market house for the use and accommodation of the citizens of the town, and to give proper security for the money they may borrow, making the same payable in not less than ten nor more than twenty years, or at various times within those limits ; and that all authority, heretofore given to the town treasurer to borrow money or pledge the credit of the town for the purpose of building a market house, be revoked : ” That on the 31st of October 1835, a meeting of said town was duly warned and held, at which the aforesaid committee made a report, stating that they had been foiled in all their attempts to carry into effect the votes of the town, passed at the meeting holden on the 1st of June preceding, but that they had secured a lot of land, between Lowell Street and the canal, two hundred and five feet long, and ninety feet wide, and paid therefor seventy-five cents per foot, “on their own responsibility,” amounting to $14,055 ; which lot they deemed more eligible for the site of a market house than any other which could be obtained : That the town thereupon voted to accept said report, to purchase said lot of land at the price aforesaid, take a deed thereof, build a market house thereon, not exceeding one hundred and sixty six feet in length, and fifty feet in width, nor less than one hundred and forty feet in length, and forty five feet in width, two stories high, &c. ; and “ that all votes previous to this meeting, upon the subject of a market house, be rescinded: ” That the plaintiff had always been ready to perform his part of the aforesaid agreement of the 29th of April 1835, and that he, after the passing by the town of the votes last above mentioned, requested the aforesaid committee and the town to pay him for his said land, according to said agreement, and tendered a deed of the same, but that the said committee and the town had wholly neglected and refused to perform their part of said agreement.</p> <p>It was agreed by the parties, that if the court should be of opinion that the defendants are bound to perform the agreement above set forth, they should not be required to take a conveyance of said land, but that the cause should be referred to a master to ascertain and report the amount of damages that should be paid to the plaintiff in consequence of their nonfulfilment of said agreement: The damages to be ascertained by finding the difference between the present cash value of said land and the sum contracted to be given therefor, and by adding to the said difference the interest on the sum, thus contracted to be paid, from the date of said agreement; arid execution to issue for the amount of damages thus ascertained.</p>

<p>This was an- action of trespass upon the case to recover damages alleged to have been sustained by the female plaintiff, while sole, in consequence of official neglect of the defendant, while clerk of the town of Chelmsford, in not recording a mortgage of personal property which the plaintiffs averred was delivered to him for that purpose.</p> <p>The plaintiffs, at the trial, produced the deposition of Alonzo Cutter, which was taken, September 23d 1840, under a commission, and in which he testified, among other things, that in the autumn of 1834 he owed his mother in law, Mary Lyman, now Mrs. Perkins, one of the plaintiffs, two hundred dollars, and that she at the same time was liable, as indorser for him, for three hundred and ninety dollars which she afterwards paid : That he at that time executed to her, as security, a mortgage of certain patented machinery, of the value of one thousand dollars, and by her directions carried the same to the office of the deendant, who was then town clerk, and where the town records were then kept, and delivered it to the defendant with orders to record it, and at the same time paid him his fees for recording, which the defendant accepted : That he had no other conversation with the defendant on the subject, until he went to Chelmsford in February or March 1836, for the purpose of ascertaining how his matters stood : That during the last of the fall of 1835 and most of the winter of 1835 and 1836, the witness was confined by sickness in the State of Maine, where he was when he first learned that said machinery had been attached on writs issued against him : That when at Chelmsford in February or March 1836, he asked the defendant for the mortgage, who replied that it had never been recorded, and that he supposed that it was lost, destroyed or burnt up, as he had not seen it since it was left with him, and he supposed it was settled.</p> <p>The witness further deposed that his said mother in law was residing at his house in Chelmsford, at the time said mortgage was given, and that in the spring of 1835, she married to her present husband and removed to Amherst, where she has since resided : That he (the deponent) resided in Chelmsford till about October 1835, when he went to the State of Maine, and intended to have removed the machinery there if it had not been attached ; and that by the terms of the mortgage he was entitled to the possession of the machinery, and that his right to the possession and use of it had not expired on the 2d of April 1836.</p> <p>It was proved that the defendant, in November or December 1835, filled four writs, as the attorney of William Fletcher, jr. and others, creditors of said Alonzo Cutter, and caused said machinery to be attached on the same ; that judgments were rendered in said suits, at the March term of the court of common pleas, 1836 ; and that said machinery was sold on the execu tions which issued on the same, dated April 2d 1836.</p> <p>The defendant propounded the following cross interrogatory, among others, to said Cutter. £C When were you first informed that the mortgage was not recorded ? and what steps or measures did you take in relation to the same ? did you make any communication to your mother in law respecting said mortgage not being recorded ? and when and where did you first make any such communication ? who was present at the time ? and what directions did you receive from your mother in law in consequence of such communication ? what measures did you pursue in consequence of such information that such mortgage was not recorded ? ”</p> <p>“To the third cross interrogatory the said Alonzo Cutter answereth and saith, that the first information I had that said mortgage had not been recorded was when 1 returned to Chelmsford in February or March 1836. [When I returned to Am herst where my mother in law resided, I informed her that the property was lost through the carelessness of Adams in not recording the mortgage, and that there was no way to recover it from the attaching officer, as the mortgage was lost and there was no record copy of it. At the same time, I told her that I considered Mr. Adams holden for the payment of it, or bound to make it good. She told me she did not wish to go to law ; and nothing more was said or done about it at that time.] I do not recollect that any one was present at the time.’’</p> <p>The court ruled that the portion of the foregoing answer, which is inclosed in brackets, was incompetent, and rejected it.</p> <p>The defendant contended that the testimony of said Cutter was false and that the mortgage was never delivered into his hands with orders that he should record it, but that he received it to hold, and not to record until further orders ; and that he never received any further orders.</p> <p>It appeared that Cutter, as soon as his health would permit, went from the State of Maine to his father’s in,Warren, (Mass.) where he remained until he came to Chelmsford and saw the defendant. And there was no evidence that he had any communication with his mother in law previous to his writing the letter, hereafter mentioned, to William Fletcher, jr. It also appeared that the Mr. Gardner, spoken of in said letter, had been in said Cutter’s employ in Chelmsford, and was taking down and packing the machinery for the purpose of carrying it to Maine, when it was attached in November or December, 1835.</p> <p>The letter, of which the following is a copy, was offered by the defendant, for the purpose of contradicting the deposition of said Cutter. The plaintiffs objected to the admission of the letter in evidence, but the court admitted it.</p> <p>“ Warren, February 23d 1836.</p> <p>“ Sir. Your letter under date the 5th inst. is this day received, and in answer I would just say, had you not have sued me, the debt would have been paid months ago by my brother in Boston ; but as you have conducted as you have, I shall not be hurried to pay it, I assure you. But still I do n’t wish to be understood that I do n’t mean to pay; for if my life is spared, I shall pay all my honest debts, but no cost. Perhaps you think I am plain, but I mean to be so, after being treated as I have been by you during my sickness. I would not have treated a dog as you have treated me. I have been informed that you have attached the machinery ; if so, and you sell them, you will have difficulty ; as Mr. Gardner has been here and informed me the whole story, and I have consulted a lawyer, and he says that if you cause them to be sold on execution unboxed, it will cause you trouble and liable to a heavy damage. If you dare risk it, go on with your play, and see if you do n’t get your money’s worth. A. Cutter.</p> <p>“ P. S. I do not wish to give any persons trouble, unless they trouble me. I should advise you as a friend to keep still if you want your money.”</p> <p>This letter was directed to “ Capt. William Fletcher, jr. Chelmsford, Mass.” and was mailed on the 27th of the same February. Said Fletcher was first attaching creditor of said machinery.</p> <p>A verdict was returned for the defendant.</p> <p>New trial to be granted, if that part of Cutter’s deposition, which was excluded, ought to have been admitted, or if his let ter, which was admitted, ought to have been excluded.</p>

<p>An assignee of an insolvent debtor, under St. 1838, c. 163, may affirm a sale of goods made by such debtor for the purpose of delaying or defrauding his creditors, ant} receive the price of the goods from the vendee. And if such assignee, knowing all the facts of the case, brings an action against the vendee, on a note given by him for the price of the goods, and secures the demand by an attachment of his property, he thereby so far affirms the sale, and waives his right to disaffirm it, that he cannot, by discontinuing such action and demanding the goods, entitle himself to maintain an action of trover against the vendee, on his refusal to return them.</p>

<p>Where an insane person, who is not able to pay for his own support, is confined in a house of correction, under St. 1836, c. 223, the town in which he has a settlement is liable for his support in such house, if he have no parent, master, or kindred, liable by law to maintain him.</p>

<p>The mayor and aldermen of the city of Boston passed an order,<( that a reward of $500 be offered to any person who shall give information, so that any person shall be convicted of setting fire to any building; for the purpose of burning the same: ” An advertisement was inserted in the city newspapers which were published on the next morning after said order was passed, reciting that sundry houses and other buildings had been recently set on fire, and offering a reward of $500 to any person <c who shall give information, so that any perpetrator of these outrages shall be convicted: ” This advertisement purported to be u by order of the mayor and aldermen,” and was signed by the city clerk.</p> <p>Held, that the advertisement must be taken to be the official act of the mayor and aldermen. Held also, that the order and the advertisement were to be construed together, as parts of the same transaction, and that by the true construction thereof, the reward was offered for information that would lead to the conviction of of-fences previously committed, and not offences thereafter committed.</p>

<p>A. bound himself by bond, u in the full and just sum of $ 500, liquidated damages, to convey to B. on demand 3000 feet of land in a city, on the corner of L. and M. Streets, including a certain house and shed, and afterwards, on B/s demand, executed a deed to him, conveying a lot of land, described by metes and bounds, at the corner of said streets, with the buildings thereon standing: B. accepted the deed, and he and A. agreed that if it was not right, it should be made right: It was after wards found upon a survey of the land thus conveyed, that it did not include the shed mentioned in the bond, and that it contained only 2513 feet. Held, in an action by B. on the bond, that he had not waived his claim for a conveyance of 3000 feet, and that he was entitled to maintain his action without making another demand for a deed. Held also, that as B. had accepted a deed in part performance of the bond, the sum of $ 500 was not to be regarded as liquidated damages, but that he was entitled to recover only the actual damages which he had sustained.</p>

<p>In an action of assumpsit the plaintiff alleged that the defendant, on the 28th of April 1837, was indebted to him in the sum of $ 500 for goods sold ; that the defendant, in consideration that the plaintiff would receive, in part payment for said goods, a note for $ 306, dated Feb. 16th 1837, signed by G. C. Whitney and payable to G. Whitney or order, in four months, and indorsed by the payee and by D. M. Whitney, promised the plaintiff that the signatures of said indorsers were genuine, and that the plaintiff, relying on the aforesaid promise, received said note and passed the same to the defendant’s credit, in part payment for said goods , yet that said signatures were not genuine, but were forged. The trial was before Putnam, J. who made the following report thereof:</p> <p>The plaintiff, to prove that the defendant was indebted to him, as alleged, called J. Brown as a witness, who testified that he was, and ever since 1837 had been, a clerk of the defendant, and that he and one Lamb, who was also a clerk of the defendant, but was then in Alabama, kept the defendant’s books ; that two books, which the plaintiff put into the hands of the witness, were the defendant’s pass books, and contained an account of the dealings between the plaintiff and defendant, both debt and credit; that they were made up at the defendant’s store in Boston, and that the defendant always had access to them ; that all the entries therein were in the handwriting of the witness or of said Lamb, except the credit to the defendant of the note in question ; and that the entries made by the witness were correct.</p> <p>The defendant objected to the admission of these books in evidence, because said Lamb was not called to verify the entries made by him, and because it did not appear that the defendant had ever seen or approved of said entries. But as it appeared that notice had been duly given to the defendant to produce his books, and that he had refused so to do, and that said books were kept by his clerks, at his store and subject to his inspection, the judge overruled the objection and admitted the books in evidence. By these books it appeared that the defendant was indebted to the plaintiff, on the 28th of April 1837, in a sum exceeding $306.</p> <p>The plaintiff then produced a letter in the defendant’s handwriting, directed to ‘ Mr. Alexander Coolidge, Natick,’ in these words : “ Boston, April 28, 1837. Mr. A. Coolidge. Dear Sir. I enclose you the note of Whitney’s, indorsed as proposed, which you will please pass to my credit, and acknowledge the receipt of the same. You will please not let Whitnej know you have it. Yours, N. H. Brigham.” The plaintiff also produced a note corresponding to the one described in his declaration, and called D. M. Whitney, who testified that the indorsement of his name on said note was a forgery. He further testified that on the day before the trial of an action which the plaintiff brought against him as indorser of said note, viz. November 23d 1838, he called with the plaintiff at the defendant’s store in Boston, and that the plaintiff then told the defendant he was going to have a trial with Whitney on that note, and wished the defendant to furnish any evidence which he had to prove the note genuine, for he (the plaintiff) could find none. The witness further testified that something was said, at that time, about a prior written notice from the plaintiff to the defendant.</p> <p>The plaintiff also called G. Whitney, who testified that the indorsement of his name on said note was a forgery.</p> <p>Evidence was also given by the plaintiff of a notarial record of the protest of said note for non-payment at maturity by the maker, and notices to the said supposed indorsers.</p> <p>It appeared that the plaintiff, on the 12th of July 1838, com menced an action on said note, against D. M. Whitney as indorser, which was tried in this court on the 24th of November following, and that a verdict was returned for the defendant in that suit, and that the plaintiff paid to said defendant the costs of that suit, amounting to $74.38 ; which sum the plaintiff claimed of the present defendant as part of the damages for breach of the warranty set forth in his declaration in this action He also claimed of the defendant the notary’s fees for the protest aforesaid.</p> <p>There was much evidence, on both sides, as to the ability of G. C. Whitney, the maker of said note, to pay it at maturity, and as to his general credit and responsibility at and about that time.</p> <p>The defendant contended that there was no evidence of any warranty ; that all the evidence thereof was in the defendant’s letter aforesaid, and that it did not appear that the note in question was in that letter. And the jury were instructed, that ui .ess they were satisfied that the note produced by the plaintiff was the note sent by the defendant to him in that letter, their verdict should be for the defendant ; that if it was the note thus sent in said letter, the letter was a warranty by the defendant of the genuineness of the signatures on the note ; and that if the jury were satisfied that the names of the indorsers were forged, the plaintiff was entitled to a verdict, unless there were some other objections to his right to recover.</p> <p>The defendant also contended that the plaintiff had lost the debt by his own negligence in not enforcing the collection of it, in a reasonable time, against G. C. Whitney, the maker of the note. And the jury were instructed to return a verdict for the defendant, if they were satisfied that the plaintiff had lost the debt by his own negligence.</p> <p>The defendant objected, that if he were subject to any damages, yet that the costs of the plaintiff’s suit aforesaid against D. M. Whitney ought not to be allowed as a part of the damages. Upon this point, the jury were instructed, that if that suit was commenced in good faith and without a knowledge of the forgery, and if the plaintiff gave the defendant seasonable notice of the pendency of the suit, and requested him to furnish evidence of the genuineness of the indorsements — giving to the defendant a reasonable time for that purpose — and the defendant neglected or omitted so to do, then the plaintiff might recover the costs of that suit as a part of the damages caused by a breach of the warranty.</p> <p>The jury found a verdict for the plaintiff. It was made up as follows : For the note $306 ; interest $86 ; protest $3 ; costs of the former suit $74.38 ; whole amount $ 469.38.</p> <p>“ If the instructions, as to the plaintiff’s right to recover the costs of his suit against D. M. Whitney, were erroneous, the verdict is to be amended by deducting therefrom $ 74.38, and the plaintiff is to have judgment on the verdict thus amended, provided the jury were rightly instructed as to other matters ; but if any of the rulings or instructions on the other points were erroneous, the verdict is to be set aside and a new trial granted. And if there were no ruling or instructions incorrect, which were prejudicial to the case of the defendant, the judgment is to be rendered for the whole amount of the verdict.”</p>

<p>Assumpsit for money had and received. The action was brought to recover the amount of a tax assessed upon the plaintiff, and collected of him by the defendants, and also to recover the amount of the costs of collection paid by the plaintiff. The agreed facts of the case were these : Prior to the 11th of April 1840, the plaintiff was a member of the first parish in Sudbury, and on that day he filed with the clerk of the parish a written notice, declaring the dissolution of his membership.</p> <p>On the 18th of March 1839, the parish voted to grant $ 500 to defray parish expenses for the year then ensuing, and that sum was duly assessed in that year. On the 18th of Septem ber 1839, the parish voted to grant $275 for the support of preaching till the next annual meeting. At the next annual meeting, March 30th 1840, assessors for the year then ensuing were duly chosen and qualified. On the 2d of May 1840, these assessors, finding that the aforesaid grant of $ 275 had not been assessed, gave due notice to the inhabitants of the parish to bring in lists of the polls and estates on which said grant should be assessed ; but no list was brought in. In June 1840, said assessors made an assessment of said sum upon the inhabitants of the parish, including the plaintiff, and committed the tax list, with their warrant, to the parish collector, who duly seized and sold the plaintiff’s property for payment of said tax and charges, and paid the same into the parish tieasury.</p>

Assumpsit to recover $307.75 had and received by toe defendants to the plaintiffs’ use, with interest from January 21st 1841.

<p>Under the St. of 1793, c. 21, incorporating the Proprietors of the Middlesex Canal, which provided that any person .who should be damaged by said Proprietors, by their flowing his land, should have compensation therefor by application to a court within one year from the time of the damage done, it was held that the damage was done to the land owner, when said Proprietors' permanent dam across Concord River was completed, for the purpose of raising a head of water for the supply of their canal, and that he had no remedy by application to a court after a year from that time had elapsed.</p>

Replevin. The defendant pleaded in abatement ot the writ, that the same was not legally served, inasmuch as it was directed to the sheriff of the county, or his deputies, and was served by Joseph Butterfield, a deputy of said sheriff; whereas it should have been directed to and served by a coroner ; because the damages demanded in said writ exceed $ 70, (so that it could not be served by a constable,) and because, at the time of the taking, by the defendant, of the goods…

<p>Where an equity of redemption is attached by different creditors, at different times, a sale thereof on execution by the second attaching creditor, before the first has recovered judgment, is void as against all the others, and the third attaching creditor thereby obtains the rights to which the second would otherwise hpve been entitled. And such was the law, even before the provisions of the Rev. Sts. c. 97, 34, 35.</p> <p>Fhree creditors, on different days, attached their debtor's right of redeeming mortgaged real estate $ A.,the second attaching creditor, first recovered judgment, and sold the equity of redemption to B., on his execution : The debtor afterwards released his interest in the mortgaged estate to B: B. released the same to A., who released it o P: The first attaching creditor subsequently recovered judgment, and caused ne equity to be sold on execution, and the proceeds of the sale exceeded the t mount of his judgment and the officer's fees: The third attaching creditor after-wards recovered judgment, and put his execution into the hands of the officer who held the surplus proceeds of said sale, and he applied those proceeds towards satisfaction of that execution. P. claimed those proceeds, and brought an action against the officer for misapplying them. Held, that the proceeds were rightfully applied by the officer, and that P. had no cause of action against him.</p>

<p>Assumpsit by the payee against the maker of a negotiable note dated January 24th 1837. Defence, payment.</p> <p>At the trial, the defendant offered in evidence a copy of a mortgage deed, bearing the same date with that of the note, made by himself and Frederic Bacon to the plaintiff, conveying to him a tract of land, upon condition that if the defendant or said Frederic should pay to the plaintiff or his heirs, &c., $600 in one year, with interest, then said deed and note should be-void ; also a receipt dated June 23d 1840, signed by the plaintiff, acknowledging that he had received the amount of the note from said Frederic. The plaintiff objected to the admission of this evidence, and offered to show that, before he gave the said receipt, he had arsigned all his interest in the note, by mesne conveyances, to Robert W. Edwards, and that the defendant had notice of said assignment, and knew that the note was held, and that this suit was prosecuted by said Edwards, when the receipt was made. This objection was overruled, and the aforesaid papers, offered in evidence by the defendant, were read to the jury.</p> <p>The plaintiff then offered in evidence, an assignment of said mortgage and note, made by him to Robert Edwards, March 18th 1839; an assignment by said Edwards to Rufus Litchfield, April 10th 1839 ; and an assignment by said Litchfield to Robert W. Edwards, dated January 1840 ; all which assignments were duly executed and acknowledged, and were recorded April 28th 1840. The note, however, was assigned without being indorsed by the plaintiff.</p> <p>W. Sawyer, a witness called by the plaintiff, testified that the note was left with him for collection by Robert W. Edwards ; that he wrote a letter to the defendant “ on the subject of the note,” and received a letter from him in reply; that the defendant called on him, a few days afterwards, and said he was not then prepared to pay the note, but would pay it soon—mentioning a time after the last day of service for the next term of the court of common pleas : That the witness informed the defendant that he could not wait for payment till the time mentioned, as he was instructed to put the note in suit if it was not naid before the last day of service; whereupon the defendant said, 66 if Edwards keeps quiet, he will get his money ; but if he Sues it, I will keep him out of it as long as I can. I have as much money to spend as Edwards has.”</p> <p>It was admitted that Frederic Bacon was son of the defendant, and resided in Boston, and that the defendant resided in Bedford.</p> <p>The presiding judge proposed to instruct the jury that upon these facts, the plaintiff ought to recover. Thereupon the case Was taken from the jury, under an agreement that the court might decide it upon the foregoing facts, making all inferences which a jury might legally make from the evidence.</p>

<p>The Rev. Sts. c. 142, § 3, which direct that search warrants shall command the officer, to whom .they are directed, to bring before a magistrate stolen property, or other things, when found, “ and the persons in whose possession the same shall be found,” have made no such change in the law as to render necessary any alteration in the form of such warrants. It is still proper to insert in a search warrant the name of the person in whose building, &c. the complainant swears that he suspects the goods are concealed, and to order the officer tó arrest such person, if the goods are found in his possession.</p> <p>An officer returned on a warrant directing him to search the buildings of S. for certain described stolen goods, “ By virtue of this warrant, having made diligent search and found three pieces of goods in the house of the within named S. and arrested the body of the within named S. and have him,” &c. Held, that this return furnished primA facie evidence, at least, that the officer had found three pieces of the goods described, and that he was therefore justified in arresting S. and carrying him, with those goods, before a magistrate.</p> <p>Where one, who has been arrested on a search warrant, and carried before a magistrate and discharged, brings an action of trespass against the officer, who justifies under the warrant, he may, for the purpose of showing that the officer was not justified by the warrant, give evidence that the goods seized on the warrant did not come within the description of those for which the officer was directed to search: But he cannot, for such purpose, give evidence that the goods, so seized, were not those which were in the mind of the complainant, when he made the complaint and obtained the warrant.</p> <p>When an officer seizes goods on a search warrant, which correspond with and come within the description of those for which he is commanded, by the warrant, to search, he is not liable to an action, though the goods so seized by him may not be the same which were lost by the complainant.</p>

<p>This was an action of trover, brought by a deputy sheriff and the case was submitted to the court on the following agreed statement of facts : On the 9th of October 1841, a writ against</p> <p>Ebenezer Whitney, one of the defendants, in favor of Ebenezer Loker, and returnable before a justice of the peace on the 16th of said October, was delivered to the plaintiff for service. The plaintiff, on said 9th of October, went into a field, belonging to said Whitney, in which there was then a quantity of corn standing and- fit to be harvested, and a quantity of potatoes in the ground, fit to be dug, and in writing appointed Isaac Coggin as his agent to keep said corn and potatoes, as attached by him on said writ; and said Coggin agreed so to do. The plaintiff duly returned the writ, stating in his return, that he had attached certain corn and potatoes ; which are the same that are mentioned in the plaintiff’s declaration. At the time of said attachment, the defendant Fairbanks held a mortgage, made by said Whitney, of the produce of the land (for the year 1841) in which said corn and potatoes grew, which mortgage W'as duly recorded, and is still in force.</p> <p>On the 14 th of October 1841, the defendants went upon t,am land, gathered the corn and potatoes, and carried them away, though they were told by said Coggin that the same had been attached by the plaintiff, and that he (Coggin) was appointed keeper thereof, and though Coggin forbade them to carry the same away.</p> <p>Judgment in the suit against said Whitney was duly rendered on the 16th of October 1841, and execution thereon was taken out and delivered to the plaintiff, within thirty days, with directions to levy it on said corn and potatoes. But the plaintiff could not find said property ; and he returned the execution unsatisfied, and it still remains so.</p>

<p>Where a suit is brought against the maker of a note which has been indorsed to a firm, and the plaintiff describes himself as surviving partner of the firm, it is not necessary, (since the establishment of the rules of the court, at March term 1836,) that the declaration should aver either a demand of payment and a refusal 3 or the name or death of the other member of the firm 5 or that the defendant did not pay the note to the firm, while it continued, nor to the plaintiff, after the firm was dis solved.</p>

<p>In a bill in equity, filed in August 1839,* the plaintiff set forth, that on the 3d of March 1837, he became seized and possessed of a water mill and calico works on Beveridge Brook, in the town of Pawtucket, and of certain dwellinghouses, gardens, out houses, &c., near-to said mill, and continued to be seized and possessed thereof, until March 1st 1839, when he demised the same to Horatio N. Ingraham, to hold for the term of three years, with a covenant for quiet enjoyment, “ free from the adverse claims of all persons ; ” and that he still had the reversion thereof, after the expiration of said three years : That in the year 1826, the Pawtucket Calico Manufacturing Company, a corporation, became the owners of the land on which said mill, dwellinghouses, &c. are situate, and erected a dam on which said mill stands, and constructed the mill with machinery and rooms for bleaching, printing and callendering goods, and thenceforth were employed and continued to work the mill in bleaching, &c. goods, until the year 1829, when Dwight Ingraham became the owner thereof, who did not continue the same business therein, but put into the mill machinery fitted for manufacturing cotton goods, and from the year 1830 to the 3d of March 1837, manufactured cotton goods therein : That the plaintiff, after he became the owner of said mill, &c. until he demised the same, as above stated, worked the mill in manufacturing cotton goods ; that, during all that time, the said houses, &c., were occupied by his workmen in the mill, and their families ; and that said H. N. Ingraham, his tenant, since the demise aforesaid was made, has continued the manufacture oi cotton goods in said mill, and that his workmen and their families have occupied said houses, &c.: That the waters of Beveridge Brook, at the time of the erection of said dam and mill by the aforesaid corporation, and at the time of the bleaching, &c., of goods there, as before mentioned, were pure and salutary, and proceeded from pure and limpid springs ; and that the plaintiff was entitled to have the same flow to and by his mill and houses, free from noisome admixtures, smells and exhalations, for the purposes of cleansing, &c., the goods used and worked in the mill, and for the use of the workmen employed therein.</p> <p>That the defendants on the 3d of March 1837, and evei since, by means of their print works, mills and machinery, erected on said brook, above the plaintiff’s said works, and of the materials wrought and used there, had impregnated the waters of the brook with noisome and unwholesome washes, drugs, dyestuffs, &c., whereby said waters, running to the plaintiff’s mill, and near his houses aforesaid, had become so foul, corrupt, unwholesome, and unfit for use, that the plaintiff and his workmen and tenants, and their families, could not use the same in so beneficial a manner as of right he ought; and that by reason of said conduct of the defendants, the plaintiff’s wells of water, near his said houses, were rendered unfit, for use, and the surrounding atmosphere was filled with noisome and unwholesome exhalations from said water, wdiereby said mill and the machinery therein became discolored and foul, and the health of the plaintiff’s workmen was impaired : That, by the same means, the pond of water, raised by the plaintiff’s dam, for the working of his mill, was filled with dregs and sediment, so as to impede its operations ; and that his tenant aforesaid had threatened to abandon the mill and his lease thereof, and to refuse to pay the rent reserved.</p> <p>The prayer of the bill was, that the defendants might be decreed so to operate their said mill, as not to injure the mill, works, workmen and houses of the plaintiff, and forthwith to cease impregnating said waters with unwholesome drugs, &c., or any foul admixtures.</p> <p>The defendants, in their answer, (after objecting to the bill for want of proper parties,) admitted the plaintiff’s title to the mill, houses, &c., in his bill mentioned, and that the waters of said brook proceeded from pure and limpid springs, which were above the defendants’ mills ; but denied that those waters, running to the - plaintiff’s mill at the time of the erection thereof, were pure and salutary : The defendants also averred, that in the year 1817 or 1818, a bleaching establishment was erected and put in operation, on the site of their print works, and that shortly afterwards and before the erection of the plaintiff’s mill, the business of calico printing was there carried on, and evei since has been, in addition to the business of bleaching; anc that after the plaintiff’s mill was erected, the water, which carried it at first, and has ever since carried it, passed from said bleaching and printing establishment, after having been used for the purpose of bleaching and printing, to the plaintiff’s mill, and that by such use of the water by the defendants, it necessarily became impregnated with the various dye-stuffs and materials used in the printing and bleaching of goods : That in the years 1832 and 1833, the owners of the plaintiff’s mill, and the owners of the defendants’ print works, (under an agreement, hereinafter mentioned,) built a large reservoir above the defendants’ pond, on said brook, in equal shares, which reservoir caused a large pond to be raised, which flowed back to the sources of the brook, covering a large surface of swampy land : That said reservoir was still continued and owned by the plaintiff and the defendants, for the benefit of their said several works below it, and that, being sometimes stagnant in the summer, it was offensive to the smell : That before the plaintiff became the owner of his mill, the formei owners thereof caused three ponds to be raised on said brook, between the print works of the defendants and the plaintiff’s mill; that the upper pond, the water of which ran from the defendants’ print works, was always stagnant, except when the gate was raised by the plaintiff to draw a part thereof into the pond next below, which, and also the lower of said ponds, was also stagnant, except the small part thereof which drove the wheel of the plaintiff’s mill: That the plaintiff, and H. N. Ingraham, his tenant, had constantly used said ponds, ever since the plaintiff became the owner of his mill, and had exercised the sole control thereof: That the plaintiff, within a year or two next before the filing of his bill, changed the manner of taking the water to the wheel of his mill, by conducting the water through a canal from his upper pond to the lower side of his lower pond, and thence to said wheel; thus leaving the whole surface of the middle and lower ponds, except a small space in the lower side of the latter, entirely stagnant the whole time, and useless to him.</p> <p>The defendants admitted, that by reason of their use of dyestuffs, &c., the water was discolored, and that some of the sediment, which ran off with the water, settled in the plaintiff’s up per pond and tended to fill it up ; but they denied that the water was thereby injured for any purpose connected with the plaintiff’s business of manufacturing cotton goods, or that the filling up of the plaintiff’s upper or middle pond had done or would do him any injury in the operation of his mill, or that the plaintiff’s wells were in any way injured by the impregnation of the waters of said brook with the dye-stuffs, &c., used by the defendants. They also denied that they caused the offensive exhalations omplained of by the plaintiff, (the existence of which, during warm weather, they admitted,) and averred that the same were i aused by the plaintiff’s retention of the water, in his ponds, as tbove stated. The defendants also denied that any noisome and unwholesome exhalations from said water had discolored and rendered foul the machinery in the plaintiff’s mill, or impaired the health of his workmen, except what might have been caused by the plaintiff’s detaining the water as aforesaid.</p> <p>The defendants further stated, that they, and those under whom they claimed, had erected “ various and many dams, mills and other buildings, and put machinery and other apparatus thereon and therein, on the site of their print works, of great value and at great expense, to wit, exceeding the sum of $200,000; ” and that the same were still kept and maintained by them for the purpose of bleaching and printing calico.</p> <p>The defendants also averred, that on the 23d of May 1832, Dwight Ingraham, who then owned the plaintiff’s mill, &c., and Royal Sibley, who then owned the defendants’ print works, made the agreement, (herein before referred to,) with Willard Jenks, an owner of land on .said Beveridge Brook, above the works of the defendants, in which agreement it was stipulated that said Dwight and Royal should erect and maintain a dam across said brook, on land of said Jenks, for the purpose of maintaining a reservoir of water for the use, in the first place, of said Royal’s bleaching and printing works, and after for the use of the mill of said Dwight; and that said Royal should be permitted to raise the dam and the water three feet, at his said works, for the purpose of increasing and extending the same : And that after-wards, on the 22d of August 1832, it was covenanted and agreed by and between the said Dwight and Royal, that aftei said Royal had raised his said dam three feet, he should have a right to lower his mill wheel, at said print works, three feet, with the view and for the purpose of further extending and enlarging said works ; and that in consequence of the said agreements and covenants, the said Royal, with the knowledge and consent of said Dwight, expended large sums of money, in the erection and maintenance of said reservoir, and in lowering the wheel at said works, and in enlarging and extending the works ; the said Dwight then knowing that said works were to be used for the purpose of bleaching and printing, as they theretofore had been.</p> <p>A replication was filed by the plaintiff, and evidence was taken and published.</p> <p>The argument was had at the last October term.</p>

<p>This was an action of trespass qu. cl. fr. in which the plaintiff, in three counts, complained that the defendants, on the 4th of July 1838, broke and entered his three pews, numbered 42, 70 and 77, in the Central Baptist Meetinghouse in Middle-borough, and removed certain fixtures which the plaintiff had placed there, and introduced strangers into said pews, and thereby injured them and the furniture thereof. The case was tried on the general issue, before Morton, J. whose report of the trial was as follows :</p> <p>The plaintiff, to support his action, offered in evidence three deeds, of different dates, but all dated before the day of the trespass alleged in his declaration, made to him by officers, or an officer, of said society, and each conveying to him one of. the pews in his declaration described. The plaintiff also gave evidence that before and up to the time of the alleged trespass, he had possession of said three pews in the manner in which pews are usually occupied. Each of said deeds contained a clause of the following purport: “It being understood that the meetinghouse is to be held, used, occupied and opened for public worship, pursuant to the provisions of an indenture made August 26, 1828, by which Levi Pierce conveyed said meetinghouse to trustees for the use of the Central Baptist Church and Society.’'</p> <p>The indenture referred to in the deeds was then introduced. It was of four parts, viz. Levi Pierce, who conveyed certain 'and, and the meetinghouse and academy thereon, of the first part; Peter H. Pierce and five others, of the second part, to whom said land and houses were conveyed upon the trusts and for the purposes in said indenture set forth, “ and for no other use, intent or purpose whatsoever—namely, upon the special trust and confidence that said parties of the second part, the survivors of them, &c. shall and do permit and suffer the said meetinghouse and lot, and so much of the academy lot, as in their judgment shall be necessary for the convenient use of said meetinghouse, at all times hereafter to be used, occupied and enjoyed as and for a meetinghouse or place of public religious worship, and service of the one living and true God, by the said Central Baptist Church and Society, under the ministration of the ministers that shall, from time to time, be elected and settled &c.</p> <p>The act incorporating the Central Baptist Society in Middle-borough, (St. 1827, c. 96,) and the records of said society •were introduced. By those records it appeared that the society accepted the act of incorporation, and that they organized and ever after acted under it. In April 1838, tire society passed a vote that the meetinghouse should not be opened for any purpose except only for preaching, conference meetings, &c. and for the examination of the academy scholars, at the end of their summer term. On the 26th of June 1838, that vote was reconsidered, and it was voted, that it was “ the sense of the society that the prudential committee have ever had, and now have, a right to optn the meetinghouse for such purposes as they may think proper.”</p> <p>It appeared that in the afternoon of the 3d of July . 838, the plaintiff closed the tops of his said pews with boards which he caused to be thickly covered with paint ; that he put a cleat across each pew door, on the inside, and two other cleats across each pew, which cleats were fastened with screws, and on which said boards were laid, and to which they were nailed ; that “ a paper was put upon the boards forbidding any person meddling with said pews ; ” and that the defendants, on the next morning, removed the boards and cleats from the pews.</p> <p>It appeared from evidence introduced by the defendants, that a number of individuals associated together for the celebration of the 4th of July 1838 ; that a committee of arrangements was chosen for the purpose of procuring this meetinghouse, and of making the usual preparations for the celebration ; that they applied to the prudential committee of this society for permission to use this meetinghouse on the occasion; that an answer, granting the permission asked, signed by two of the committee, dated June 28th 1838, was returned. It also appeared that said com mittee consisted of three, and that this answer was made without consulting the third, and without his knowledge. The three defendants, one of whom was a member of the committee of arrangements, acted by the directions of that committee in re moving the boards from the pews.</p> <p>After all the evidence on both sides was introduced, both as to the manner in which leave was obtained to use the mee'inghouse, and as to the manner in which the boards, &c. were removed from the plaintiff’s pews, the jury were instructed “ that the plaintiff had shown a legal right to the three pews, and that the society had such a right to and control over the house, that they might grant the use of it for the celebration of the anniversary of the declaration of independence, so far that those to whom the use was thus granted would have the same rights and privileges which occupants of churches on such occasions usually have ; and that the permission or license, granted in this case by a majority of the prudential committee, gave them the privilege and right to occupy the house in the usual manner.” The jury were further instructed, “that the legal owns; or holder of pews holds them subject to the rights and powers of the parish or society; that the latter had the general superintendence and control of the meetinghouse — had the power and right to determine how often and at what hours on the Sabbath, and at other times, it shall be open for public worship — to select their pastor and to determine who, in his absence, shall be admitted into the pulpit, and to keep the house in a proper state and condition for public use : But that on such occasions, the pew-holder has a right to the exclusive use of his pews ; that he may occupy them by himself and family or by his friends ; that whether he thus occupies or not, he has a right to exclude others ; that he may do this by attending in person, or by his agent, and excluding them ; that he may effect the same object by locking or otherwise fastening his pews, or in any way prohibiting people from entering them ; and that, if any person, knowing such prohibition, enters, he will be guilty of a trespass.”</p> <p>The jury were also instructed, “ that a parish or society may use, or suffer others to use, their meetinghouse for some other purpose than religious worship, and that the celebration of independence is one of the purposes for which they may use or allow others to use it; that on such occasions, the pew-holders have, in relation to their pews, the same rights and privileges, but subject to the same qualifications, restrictions and control, as when the house is used for public worship. But that the pew-holder has no right to use his own pews in such manner as to interrupt or interfere with others, in the proper or convenient use of the other pews ; that although he might lawfully take measures to secure his own pews, and exclude all others from them, yet, to accomplish this purpose, he would have no right to place such objects, or perform such acts, in his own pews, as would be offensive or injurious to others occupying the rest of the house ; and that, if the plaintiff, with an intent to interrupt, incommode, or in any way to interfere with the use and occupation of the house by others, or with a total disregard of their occupation and enjoyment of it, did perform such acts or place such objects in his pews as were offensive to the senses, or, otherwise incommoded, interrupted or endangered the conve nient occupation or enjoyment of it by others, in the use of the other pews, then those entitled to the use of the house would have a right to remove the offensive or injurious objects, without doing any damage .to the pews.”</p> <p>The jury were further instructed, “ that the plaintiff had a right to nail cleats across the pew doors to prevent people from entering, provided they were so placed as not to interfere with or interrupt any person without, and that to enter and remove cleats, thus put on for this purpose, would be a trespass. But if injurious or offensive objects were placed in the pews, the legal occupants of the house might lawfully enter and remove the whole objects together, although some portions of them were put there for other purposes, and when separated from the rest of the structure were inoffensive in themselves : But that the occupants had no right to do any more than was necessary to remove the nuisances, or offensive objects : And if cleats, which were made parts of them, had previously been put there for the purpose of fastening up the pews, and had, in removing the offensive structure, become separated from the rest, and remained, securing the pews, and were on the inside so as not to be offensive or injurious to those without, it would be a trespass to proceed and remove them. But if in removing the offensive or injurious structure, the cleats came away with the rest, it would be no trespass, although they were put there ' e the purpose of fastening up the pews.”</p> <p>The jury returned a verdict for the plaintiff. The defendants excepted to the above instructions, and also moved for a new trial because the verdict was against the weight of evidence. A full report of the evidence was annexed to the motion for a new trial.</p> <p>This case was argued at Boston, January 12th 1842.</p>

<p>Petition for partition, in which the petitioner alleged that she was seized in fee of two eighths of one fifth of several parcels of real estate therein described, as tenant in common with the respondents.</p>

<p>The authority given to the court, by the Rev. Sts. c. 81, § 8, and c. 105, § 14, to hear and determine in equity all suits and matters concerning waste, where there is not an adequate remedy at law, extends to cases of technical waste only, and not to those trespasses which courts, that have full chancery powers, restrain by in junction.</p> <p>The authority given to the court, by the Rev. Sts. c. 81, § 8, to hear and determine in equity ‘ all cases in which there are more than two parties having distinct interests, which cannot be justly and definitively decided and adjusted in one action at the common law,’ does not apply to a case where one is charged with a trespass upon land, and the question is, whether the land, if he has no title to it, is owned by certain individuals, as tenants in common, or by a municipal corporation.</p>

<p>The chief justice, before whom this cause was tried, made the following report thereof:</p> <p>In this case, which was assumpsit, and in which there were mutual accounts, an auditor had been appointed, who had reported a balance due to the defendants. In order to show that the report of the auditor was not right, the counsel for the plaintiff called for the books of the defendants containing their account with the plaintiff; and on their being produced, he claimed the benefit of an entry therein, to his credit, of a large amount of iron as received of him by the defendants, and relied upon it as tending to show that the report of the auditor should have given him the benefit of it, and that the jury ought so to do. The counsel for the defendants contended that the account of the defendants ought to be taken all together, and that credit ought not to be collected from the books to charge them, without admitting the debit therein also charged. But the jury were instructed, that the plaintiff, by calling for the defendants’ books and claiming the benefit of said credit, had made the books primd facie evidence only, and that it was open to him to contend, upon the whole evidence, that the items on the debit side of said account were not proved, or were not proper subjects of charge in the account, and to show that he ought not to be concluded thereby.</p> <p>There was evidence tending to show that the plaintiff’s account was for blacksmith’s work done principally for a ship which the defendants were building ; that there was no special agreement respecting the work ; that the plaintiff relied on a quantum meruit; also that some of the claims and charges of the defendants, as contained in their books, were for money paid to other persons for doing part of the smith’s work for said ship. In reference to this evidence, the jury were further instructed, that if there was no contract by the plaintiff with the defendants to do the whole of the smith’s work for said ship, or any specific part thereof, or to do it within any limited time, the defendants could not sustain their claim for damages, either for money paid to other persons for doing part of the work, or for delay and detention in the work which the plaintiff did ; although such items of damage were charged in the defendants’ books, on which the plaintiff claimed credits.</p> <p>The jury returned a verdict for the plaintiff.</p> <p>New trial to be granted, if said instruction was not right; otherwise, judgment to be rendered on the verdict.</p>

This was an action of trespass quare clausum fregit, in which the plaintiffs complained that the defendants broke their close, entered their meetinghouse, took possession thereof, and excluded the plaintiffs therefrom for a long time, viz., from the 1st of April 1839, to the time of the commencement of the action on the 24th of March 1840.

<p>Payment of a state or county tax, within two years next preceding the election of governor, &c., by one who is in other respects a qualified voter, entitles him to vote at such election, although such tax was illegally assessed upon him.</p> <p>Though a tax, which is assessed upon one person, is paid for him by another, without his previous authority, yet if he recognizes the act, and repays or promises to repay the amount, on the ground that such person acted as his agent, he thereby acquires the same right to vote as if he had paid the tax with his own hand;</p> <p>Where A., who was taxed for land, denied, when called on for payment, that he was rightfully taxed, and directed the collector to call on B., the owner of the land, and the collector thereupon called on B.’s wife, in the absence of B., and she paid the tax, and A. afterwards repaid her and took the receipt which the collector had given her 5 it was held, that if A. directed the collector to call on B. because the tax was wrongfully assessed on A., and if the wife of B. paid the tax, believing that B. ought to pay it, and if A. afterwards, not believing himself to be rightfully assessed, or that B. had any claim on him for the amount, repaid the amount merely for the purpose of securing a right to vote, it was not such a payment as entitled him to vote. Held also, that in an action by A. against selectmen for refusing his vote, they might show that A. did not occupy the land for which he was taxed, as that fact had a bearing on the question whether the wife of B., in paying the tax, acted as A/s agent, and whether she called on A. for repayment.</p> <p>A voter, who is challenged at the polls, cannot maintain an action against selectmen for refusing to receive his vote, if they do not act wilfully or maliciously, but under a mistake into which they are led by his conduct which was likely to mislead them into a belief that he had abandoned his claim to a right to vote.</p> <p>Selectmen have authority, even after the opening of a town meeting, to strike from the list of voters the name of a person who is not a legal voter.</p>

<p>Assumpsit by the payee, against Seth F. Tobey and Joshua B. Tobey, joint makers of a promissory note dated July 3d 1834, payable on demand with interest. Writ dated February 11th 1841. Both defendants pleaded the general issue, and gave notice that they should rely on the statute of limitations as a bar to the action. Seth F. Tobey also gave notice that he should further defend on the ground that he was a minor when the note was given.</p> <p>At the trial in the court of common pleas, said Seth F. gave evidence that he was a minor at the time the note was made, and that he came of age on the 29th of June 1835 ; and the plaintiff thereupon gave evidence, that said Seth F., after he came of age, made a new promise to pay the note.</p> <p>With respect to the statute of limitations, as it affected both defendants, the evidence was as follows : On the back of the note were two indorsements of payments, in the handwriting of said Seth F. ; one dated January 21st 1835, and the other dated March 4th 1835. The plaintiff went out of the Commonwealth in 1838, and left the note, for collection, with Roland Peirce, who often called on said Seth F. to pay it, and said Seth F. repeatedly promised payment. In the spring of the year 1840, said Roland, not having received payment, presented the note to said Joshua B., who said it ought to be paid, and took out his money, for the purpose, (as said Roland supposed,) of paying it. Seth F. then came forward and told Joshua B. that be need not pay the note, but that he (Beth F.) “ would settle with Peirce,” the plaintiff.</p> <p>When the note was given, the defendants were partners in business, and the partnership was dissolved on the 4th of October 1834.</p> <p>The defendants contended, that as to Joshua B. Tobey, this evidence was not sufficient to take the case out of the statute of limitations ; because he had neither made any payment, nor any written promise, within six years ; that Seth F. Tobey had made no written promise within six years, and that the payment made by him, on the 4th of March 1835, was during his minority, and was therefore avoidable by him ; and that even if he had been of age, when he made that payment, it would not revive Joshua B.’s liability, because the partnership had been previously dissolved.</p> <p>The plaintiff contended, that though Seth F. was under age, on the 4th of March 1835, yet that he had adopted the payment then made by him, by what he had said and promised after he came of age ; and that this was sufficient to take the case, as to both defendants, out of the operation of the statute of limitations.</p> <p>The court instructed the jury that the evidence was not sufficient, as to either defendant, to take the case out of said statute ; and a verdict was returned for the defendants. The plaintiff alleged exceptions to the instructions given to the jury.</p>

<p>If the seizin of a party, at a given time, is proved or admitted, the legal presumption is that such seizin continues, and the burden of proof is on him who alleges a disseizin 3 and that burden remains on him, even after he has given primd facie evidence of a disseizin.</p> <p>If one agrees to buy and another to sell land, and no consideration is paid, nor deed given, and the buyer enters into possession, the fair inference is that the entry and possession are not adverse and a disseizin, but by consent of the owner and in subordination to his title, until payment is made and a deed given, and constitute a tenancy at will. But if, on such agreement, the consideration is paid, and the owner consents that the buyer may enter and hold the land as his own, and the delay in giving a deed is by accident or mistake, or because a deed cannot be immediately procured, and the owner agrees to give a deed, without further consideration or condition, and the buyer thereupon enters into possession 5 such entry and possession are not to be deemed subordinate to the title of the owner, but as adverse and a disseizin.</p> <p>In a suit between B. and K., to try the title to land which was extended in execution by K., as the property of D., and which D. was alleged to have acquired by dis-seizing B., it was held that a deed, made by D. to B., without fraud or duress, and with a knowledge of its purport and effect, in which D. conveyed to B. the buildings which D. had erected on the land, describing them as standing on the land of B., was conclusive evidence that D. recognized B.;s title to the land, and his own interest in the buildings as personal property 5 and that such deed should take effect against K., although it was executed after he attached the land as the property of D.</p> <p>Where two magistrates, who took a deposition within the Commonwealth, in perpetual remembrance, stated, in their certificate annexed thereto, that “ the deponent, being sworn to testify the truth, the whole truth, and nothing but the truth, in the case in hearing before us, made oath to the truth of the foregoing deposition by him made and subscribed,” and that the parties interested had due notice and appeared with their counsel 5 it was held that the deposition was admissible in evidence \ especially when objected to by the counsel who were present when it was taken.</p>

<p>Where a suit is brought against three joint contractors, and the writ is served on two only, the two, by pleading the general issue, waive their right to object to the want of service on the third. i</p> <p>tn a deed inter partes, viz., by and between A. B. and C. on the one part, and D. E. and F. on the other part — after a recital that said D. E. and F. were a committee to purchase a steamboat to run, &c., for an association of subscribers, and that it was probable that they (said D. E. and F.) might find it necessary, in pursuance of said object, to contract debts beyond the amount subscribed therefor — it was agreed by A. B. and C., that if the contracts of D. E. and F., for said object, should exceed the amount subscribed therefor, then they, (A. B. and C.,) would bear and pay to D. E. and F. one half of the amount that their said contracts for said objects should exceed the amount subscribed therefor. Held, that this was a joint contract of A. B. and C. Held also, that the joint liability of A. B. and C. was not annulled by a subsequent clause in the deed, by which it was mutually agreed, that the advances contemplated to be made by D. E. and F. should be paid equally, and that all profit? and losses, arising from such advances, should be paid or borne equally, by all the parties to said deed.</p>

<p>\. shipped on board B.7s vessel for a fishing voyage, and signed a shipping paper in which it was agreed that A. should have a certain proportion of the fish that he should take on the voyage, or the proceeds thereof, and that B. should render to A. an account of the delivery or sales of all such fish: Before the vessel sailed on the voyage, A. drew an order on B. requesting him to pay to C., or order, a certain sum, at the end of the voyage, if he (A.) should make enough to pay said sum; which order B accepted. In a suit against B. on this acceptance* it was held that by * the end of the voyage7 was not meant the arrival of the vessel, but the sale of the fish. Held also that although it was proved that B. might have sold the fish, soon after the arrival of the vessel, for a sum sufficient to pay the order, and that, by delaying the sale, he did not obtain a sum sufficient for that purpose; yet if he acted in good faith, and sold the fish within a reasonable time, he was not liable to the holder of the order; and that, for the purpose of proving that he acted in good faith, and made the sale in a reasonable time, evidence was admissible of the custom of those employed in like fishing voyages to delay the sale offish as long as B. had delayed in this instance.</p>

Assumpsit on a policy of insurance on the barque Volante, on a whaling voyage from Sippican, a port in Rochester, and back to said port. The plaintiffs, at the trial, gave in evidence the policy, dated October 12th 1839, by which the defendants caused John S. Bates, for himself and other owners, to be insured $10,000 on said barque and outfits, one half on each, as valued in the margin.

<p>An action of assumpsit may be maintained in this State, upon an instrument made in another State, and which, by the law of that State, is a specialty, if by the law oí this State it is a simple contract.</p> <p>in a suit by A. on a note given to him in satisfaction of a judgment recovered against the promisor by B., the promisor cannot defend by showing that A., before said judgment was recovered, purchased of B. the demand which was the subject matter thereof, and afterwards, on the trial of the action, testified as a witness against the promisor.</p> <p>A note given by a judgment debtor to the assignee of the judgment, in part payment thereof, is on a sufficient consideration.</p>

<p>in an action by an indorsee against one who signed a promissory note on the back thereof, the indorser is a competent witness to prove that the defendant signed the note at the same time with the promisor whose signature was on the face of the note.</p> <p>Where the payee of a promissory note, which is in the hands of his attorney, indorses it bondjide to a third person, and leaves it in the attorney’s hands for the use of the indorsee, the attorney thereby consents to hold it for the indorsee, and becomes his agent 5 and if the attorney bring an action on the note in the indorsee’s name, which he sanctions, this is proof of actual transfer and constructive delivery of the note, though the indorsee never sees it.</p> <p>An indorsement of a note ‘ without recourse,’ transfers the whole interest therein, a/.d merely rebuts the indorser’s liability to the indorsee and subsequent holders. But such indorsement, with other circumstances, may tend to show that the note was not indorsed for value, so as to prevent the promisor from making the same defence, in an action by the indorsee, which he might make in an action by the promisee.</p>

<p>Trespass upon the case. The declaration alleged, that the plaintiff “ on the 20th of May 1732, and long before and ever since, was seized in fee and possessed of a parcel of meadow land in Norton bounded on the easterly side by a highway,” [setting out all the boundaries] “ through which meadow run an ancient brook ; that the water from said brook, from the time whereof the memory of man runneth not to the contrary, into the natural channel was wont to run ; yet that said George, on the said 20th of May 1832, and long before and continually afterwards, up to the day of the date of the plaintiff’s writ, the ancient course of the water of said brook hath obstructed by means of the making of a bar or dam across said ancient course of the water of said brook, to turn the same into a certain sluice, on the northerly side of said brook, erected by the said George ; by reason of which obstruction, the water of said brook overflowed the said meadow land, both summer and winter, all the time aforesaid, and thereby spoiled the same, injured the quality and reduced the quantity of grass,” &c.</p> <p>The trial was before the chief justice, who made the following report thereof: The evidence tended to show that the plaintiff was the owner of the meadow described, by inheritance from his father ; that it was separated from a tract of meadow land owned by the defendant, and inherited from his father, by a road upon which was a bridge over a small brook ; that said brook constituted the natural outlet and drain of a tract of bog meadow, and flowed from the plaintiff’s to the defendant’s meadow; that the defendant, and his father before him, have had a dam across the brook, below the road that divides the plaintiff’s part of the meadow from the defendant’s, by which the water has been raised and kept up during the winter only, for the purpose of carrying a wheel for the use of a fulling mill, trip hammer, &c. : That about 20 years ago, the defendant, with his father who has since deceased, were jointly in possession of the lower meadow, and of the dam and the works connected therewith : That about that time, the defendant, or his father, cut a small canal, beginning at the upper part of the meadow now owned by the defendant, near the road, at the side of said brook or outlet, and continuing it along the margin of said meadow, about 30 rods, to the defendant’s shop below, where it was turned upon a water wheel, and used to carry a smith’s bellows, &c. : That by a mill dam, , separating it from the larger or winter pond, it was kept up and used as a water power in summer, when the larger pond was down : That below the road, and just below the upper end of said canal, sand and mud gradually accumulated, and that, at length, the brook took the direction of said canal, and all the water, when not high, has flowed down in the canal.</p> <p>Whether there was any original channel or rrver bed, or whether the water originally spread over the meadow ; whether the defendant or his father placed any obstruction there, to turn the water into the canal, or whether the bank was formed there naturally, by means of the earth washed down from the road ; whether, if the bank was placed there by design, it raised the water so as to cause it to flow back upon the plaintiff’s land — were questions of fact which were left to the jury, upon the evidence.</p> <p>The defendant, in addition to a general denial of liability, relied upon two distinct grounds. 1st. That the plaintiff’s remedy was barred, and the whole case settled, by an award between the parties. 2d. That if the plaintiff had any remedy, it was upon the mill act, (Rev. Sts. c. 116,) and not an action upon the case for a nuisance.</p> <p>As to the first ground, viz. the bar by an award, the defendant gave in evidence a submission entered into by himself and the plaintiff, on the 20th of August 1834, before a justice of the peace, upon a demand made of the defendant by the plaintiff of the sum of “ six hundred dollars for the injury the said Asa has sustained by reason of the flowing of his land in Norton, done by the said George, by means of a dam maintained by him across a brook or river in said Norton.” The agreement was “ to submit the said demand made by the said Asa against the said George, and all other demands between the parties, to the determination of” [three men named,] “the report of whom, or the major part of whom, being made, as soon as may be, to any court of common pleas to be held in and for said county of Bristol, judgment thereon to be final,” &c. The award of the referees was, “ that each party shall pay one half of all the expenses arising from this rule, and that they shall settle even all accounts and demands previous to this date. October 1st. 1834.” This award was returned and accepted.</p> <p>The jury were instructed, that this submission and award were a bar to any claim of damages for originally erecting the dam, and also for the continuance of the same to the time of the submission ; but that, unless the arbitrators had wholly negatived the plaintiff’s claim for any damage for flowing, the award was not a bar to a claim for damages for the continuance of the nuisance. As the award was equivocal, in this respect, the testim my of two of the referees was admitted, which tended to show that they did find some damage for the plaintiff, but set it off against other demands on the other side. To the admission of this testimony the defendant excepted.</p> <p>It was also objected by the defendant, that if in other respects the plaintiff would be entitled to recover on the evidence, yet he could not recover in this action, because the declaration was so framed as to charge the erection of a nuisance, and that it did not charge a technical continuance of a nuisance. But the objection was overruled, and the jury were instructed, that if in other respects the plaintiff had made out a case for the continuance of a nuisance, he might, on this declaration, recover damages for such continuance from the day of the aforesaid submission to the time of the commencement of this action. To this instruction the defendant excepted.</p> <p>Upon the second ground, viz., that the plaintiff’s remedy, if he had' any, was upon the mill act, there was evidence tending to show that, for a few years last past, the mill wheel which used to be carried by means of the summer pond and the water conveyed by the canal in question, had ceased to be used ; that the water of the summer pond was not separately kept up, but first intermixed with the water of the winter pond on the larger dam ; and that the only mill wheel, that was used, was the wheel driven by the winter pond.</p> <p>The jury were instructed, that if the canal was cut, and the dam, bank or obstruction, was erected near the head of it, to turn the water into it, and then conduct it to the defendant’s shop for the purpose of driving any machinery of the kind mentioned. it was a water mill, under the protection of the mill act; but if, at any time before this action was commenced, it had ceased to be used for mill purposes; and if the defendant had given up the intention of again using it as a separate mill power, and abandoned it, then it had ceased to be a mill dam and to be under the protection of the mill act; and that if the plaintiff was entitled to any remedy, it was by this action at law, and not upon the mill act. To this instruction the defendant excepted.</p> <p>The jury found a verdict for the plaintiff, for the continuance of the nuisance from the 20th of August 1834, the date of the submission, to the 19th of May 1838, the day of the commencement of this action.</p> <p>Verdict to be set aside, and a new trial awarded, if any of the foregoing rulings were wrong.</p>

<p>Assumpsit against the indorser of a bill of exchange. The bill was drawn at Providence (R. I.) Feb. 1st 1837, by S. Arnold & Co. upon Williams, Haven & Co. of Philadelphia, for $ 800, payable, at four months after date, to the defendant or his order, and by him indorsed, and accepted by the drawees.</p> <p>At the trial before the chief justice, it appeared that the bill was discounted by the plaintiffs, indorsed by their cashier, S. S. Wardwell, and transmitted to the Bank of New York, in the city of New York; that it was there indorsed by A. P. Halsey, cashier of that bank, and transmitted to the Bank of North America at Philadelphia.</p> <p>On the day when the acceptance became due, which was June 3d, the second day of grace, (the 4th of June, the 3d day of grace, being Sunday,) it was duly presented, by a .notary public employed by the Bank of North America, to the acceptors for payment, who stated that it would not be paid ; and thereupon he duly protested the same for non-payment. On the next day, the notary made out notices in writing, in due form, that said accepted bill had been presented for payment and was not paid, and that the holders looked to the party addressed for payment; and addressed the notices, severally, to S. Arnold & Co. the drawers, to E. A. Hathaway, and to S. S. Ward-well, the indorsers, and enclosed all of them, with the bill, to (í A. P. Halsey, Cashier, New York,” and deposited them in the post office at Philadelphia. These notices and the bill were received by said Halsey, through the post office, on Monday June 5th, and on the same day, the notices were enclosed and addressed to “ 8. 8. Wardwell, Cashier, Providence, R. I.”</p> <p>Said Wardwell testified, that on the 6th of June, he received the letter from Halsey, postmarked at New York, June 5th, containing the notices, and that he received the bill on the next day : That he had no recollection of sending the notice to the indorser, but that it was the invariable practice of the bank (the plaintiffs) to deliver all such notices on the day they are received, in one or the other of the following modes ; either, 1st, at the residence or place of business of the person addressed, or, 2d, to him personally, or, 3d, to enclose the notice and direct it to the party, and put it into the post office ; and if the party had a box in the post office, to put it into his box.</p> <p>This evidence of usage was objected to by the defendant’s counsel, but was admitted.</p> <p>Said Ward well further testified that it was not his practice to keep any record of such notices given to the bank, and that he did not distinctly recollect the fact of receiving the aforesaid notice from the bank at New York ; but ascertained the fact, and the time of receiving it, from his business letters.</p> <p>It was admitted that the defendant, on the 6th of June 1837, was a merchant resident in Providence.</p> <p>The defendant took three grounds of defence : 1st. That the notice was not seasonably given; that as the bill was protested on Saturday, June 3d, the notice from the notary should have been written and deposited in the post office on the same day : 2d. That the notice to the defendant should have been forwarded directly to him at Providence, and not intermediately to New York, whereby it was delayed, and the defendant therefore discharged : 3d. That the facts testified to by Ward well were not competent and sufficient to prove notice to the defc.-Uant as indorser.</p> <p>The two first objections were overruled. It was ruled that Wardwell’s testimony was competent; and it being agreed to refer to the whole court the question of its sufficiency, and the points of law in the case, a verdict was taken for the plaintiffs by consent.</p> <p>Judgment to be rendered on the verdict, if the above rulings were right, and if the aforesaid evidence was sufficient to prove due notice to 'the defendant as indorser; otherwise, the ver diet to be set aside and the plaintiffs to become nonsuit.</p>

<p>Where one indorsed a bill of exchange, for the accommodation of the drawer, who negotiated it on an agreement, not assented to nor known by the indorser, that it should not be presented to the drawee for acceptance, until maturity, and it was accordingly firsc presented to the drawee at maturity, and then dishonored 5 it was held that the indorser was not thereby discharged.</p> <p>Where the holder of an -indorsed bill of exchange, which is not accepted by the drawee, merely informs the drawee that he (the holder) has the bill, but does not actually present it to him for acceptance, and the drawee thereupon tells him that the bill will not be accepted nor paid, the indorser is not thereby discharged though no notice is given to him of the drawee's declarations.</p>

<p>A grantor, who conveys land with warranty to A., bounding him on a certain line, and then conveys land to B. with warranty, bounding him on A.'s line, is a competent witness, in a suit between A. and B., to testify as to the situation of the monuments on their dividing line, at the time of his conveyances, although those monuments do not exist at the time when he testifies.</p> <p>The declaration of a person, while he was in possession of land, claiming it as owner, that his line extended to a certain boundary which he pointed out when he made the declaration, is admissible in evidence, after his decease, on a trial of a question concerning the boundary line of the same tract of land.</p>

<p>A judgment debtor, who is arrested on execution, and voluntarily permitted by the officer to escape, and is afterwards arrested by the officer and committed to jail on the same execution, cannot maintain a writ of audita querela against the officer to recover damages for the false imprisonment.</p>

<p>Where parties, who are residents of another State, are married there and reside there after marriage, and the husband there deserts the wife, and she afterwards remove* into this State, and resides here five years, the desertion being continued during that time, she is not entitled to a divorce, under St. 1838, c. 126, although she and her husband lived together in this State a part of the time between the marriage and the desertion. The court has no jurisdiction of such a case.</p>

Trespass upon the case. The plaintiff alleged, in his declaration, that he was the owner of a close and a water mill, and water privilege thereto appertaining, in Medway, on Charles River, and ought to have the uninterrupted use and occupation of said mill and privilege; but that the defendant had erected and continued a dam in and across said river, below said mill and close, thereby hindering the water of said river from flowing and passing off from the wheel of said mill,…

<p>The defendant was convicted, at the last April term of the court of common pleas, of the crime of suborning and procuring one Fanny Crossman to commit wilful and corrupt perjury upon his trial, at a former term of said court, on an indictment against him for forgery. He thereupon alleged the following exceptions to the opinions and directions of said court :</p> <p>1. “ The counsel for the defendant contended, that in proving that part of the indictment which alleged that he suborned Fanny Crossman to commit the crime of perjury, it was necessary it should be proved by two witnesses, or by more evidence than the testimony of one witness. But the court instructed the jury, that all which was necessary in proving this part of the indictment was, that there should be sufficient evidence to satisfy them beyond a reasonable doubt.</p> <p>2. “ The court instructed the jury, that if it was proved to them, beyond a reasonable doubt, that the defendant, on the former trial for forgery (stated in the indictment) put Fanny Crossman on the stand, or caused her to be put on the stand, as a witness, knowing that she would testify as set forth in the indictment, and intending that she should so testify, and he put her on the stand, or caused her to be put on the stand, for the purpose of her so testifying, and she did so testify, and such testimony was false, and he knew, when he put her on the stand, or caused her to be put on the stand, that if she did so testify, her testimony would be false ; it would be sufficient to prove that part of the indictment which alleged that the defendant suborned Fanny Crossman to commit perjury, as set forth in the indictment.</p> <p>3. “ One Smith, having been called by the government to prove what said Fanny Crossman testified on the former trial, and having sworn, among other things, to the testimony of said Crossman that she came from Lowell to be a witness on the former trial, in consequence of a letter written to her by the defendant, the court instructed the jury that this was not to be taken by them as evidence that the defendant did write such a letter ; but the fact that she did so testify on the former trial, in the hearing of the defendant, and he thereby had notice that she made such a statement, and had an opportunity, on this trial, if he chose, to prove in what manner and by whose agency she came from Lowell, might be taken into consideration by them.</p> <p>“ The defendant also objected to this portion of the testimony of Smith, as it was not any portion of the testimony of Fanny Crossman, set forth in the indictment. It was admitted, on the ground that it was proper that the whole of what Fanny Cross-man testified on the former trial should be given in evidence on this trial.”</p> <p>The defendant also alleged an exception to the order of the court overruling a motion made by him, in arrest of judgment</p>

<p>This was an indictment on § 2 of c. 47 of the Rev. Sts. alleging that the defendant, “ without being duly licensed as an innholder,” did, at Milton, on, &c. sell brandy to one Belcher, to be used in the dwellinghouse of the defendant.</p> <p>It appeared, at the trial in the court of common pleas, that the defendant, at the time of the alleged sale, was duly licensed as a “taverner” ; but that his license was so framed as to authorize him to sell wine, or any other fermented liquor, and not to authorize him to sell brandy, or any other spiritous liquor ; and thereupon the defendant objected, that there was a fatal variance between the allegation and the proof. This objection was overruled by the court, and evidence was then introduced to prove the selling alleged in the indictment; and the defendant, being found guilty by the jury, alleged exceptions to the ruling of the court.</p>

<p>In a suit to recover a legacy of an executor, who is residuary legatee, and has given bond, pursuant to the Rev. Sts. c. 63, § 3, to pay all the debts and legacies of the testator, the plaintiff is not.required to give any other proof, besides such bond, that the defendant has assets in his hands. And it seems, that such executor, who has given such bond, is bound to perform the condition of his bond, although he has not assets.</p> <p>A writing given by a child to a father, acknowledging the receipt of an advancement, cannot be used by way of set-off in a suit by the child to recover a legacy given to him in a will afterwards made by his father, nor as evidence of the payment or ademption of such legacy.</p> <p>A judgment against a claimant, which is a bar to another suit on the claim, is also a bar to the use by him of the same claim by way of set-off.</p>

<p>Where a mill owner has acquired a prescriptive right to keep up a dam constantly which, in its usual operation, would raise the water to a certain height, although from the leaky condition of the dam, or the rude construction of the machinery in his mill, or the lavish use of the stream, the water has not been usually and constantly kept up to such height, yet if he repair the dam, without so changing it as to raise the water higher than the old dam, when tight, would raise it, or if he use the water in a different manner, and thereby keep up the water more constantly than before5 this is not a new use of the stream, for which a land owner can claim damages, but is a use conformable to the mill owner’s prescriptive right.</p>

<p>Assumpsit on two promissory notes made by the defendant, payable to Addison Boyden or order, and by him indorsed in blank. One of these notes was dated December 10th 1840, and payable in five months ; the other was dated January 6th 1841, and payable in four months.</p> <p>The case was submitted to the court on the following facts : On the 12th of October 1840, the plaintiffs discounted for said Boyden a note for $ 300, signed by Daniel Leland, sen. dated September 26th 1840, payable to said Boyden, or order, in four months, and indorsed by him. This note was not paid by die maker, at maturity, and the indorser bad due notice of its dishonor. But the note lay in the plaintiffs’ hands unpaid, till May 5 th 1841.</p> <p>On the 11th of January 1841, the plaintiffs diseounted for said Boyden a note for $ 113, which was date a on the 1st of said January, payable to him, or order, in four months, signed by Seth C. Hawes, and indorsed by said Boyden.</p> <p>On the day of the maturity of the aforesaid note of $ 300, signed by said Daniel Leland, sen. (viz. January 29th 1841) said Boyden pledged to the plaintiffs the notes now in suit, by indorsing them in blank, expressly as collateral security for payment by him, as indorser, of said $ 300 note.</p> <p>On the 5th of May 1841, said Daniel Leland, sen. paid said $ 300 note, and, as agent for his son, the present defendant, asked the plaintiffs to deliver up the notes now in suit, which they refused to do, on two grounds ; first, because they had a lien on those notes to secure payment of the abovementioned note signed by Hawes ; and secondly, because said Daniel Leland, sen. showed no authority from Boyden to take the notes.</p> <p>On the 4th of May 1841, said Boyden received due notice from the plaintiffs that said note of Hawes, indorsed by him, was dishonored, and thereby became liable, as indorser, to pay the same to the plaintiffs. But said note has never been paid.</p> <p>In June 1841, the defendant, professing to act solely as agent of said Boyden, with a written authority from him, demanded of the plaintiffs the notes now in suit; but the plaintiffs refused to deliver the same, claiming a right to retain them as security for the payment, by said Boyden, of the Hawes note by him indorsed. This claim they notified to Boyden on the 5th of May 1841, the day after said Hawes’s note was dishonored.</p> <p>The defendant was at the plaintiffs’ banking house, soon after the notes now in suit were pledged by said Boyden, as aforesaid, and long before either of them fell due ; and these notes were shown to him by the plaintiffs, and he averred that they were business notes, and promised the plaintiffs that he would pay both of them on the day when the first of them should fall due But no payment on either of said notes has been made to the plaintiffs or to said Boyden.</p>

Scire facias. The defendant had been summoned as trustee, in a suit brought by the plaintiff against Joseph Tufts, m the court of common pleas, and been charged, on his answers, as trustee of said Tufts. ■ But as he refused to expose any property on the execution, which issued on the plaintiff’s judgment against Tufts, or otherwise to satisfy that execution, the present suit was commenced at the April term 1841, of the court of common pleas, when the defendant was permitted…

<p>The following facts appeared from the answers of Abiathai Richards, who was summoned as trustee of Alden, the principal defendant: Said Alden made two mortgages of personal property to said Richards ; the first, on the 13th of October 1837, of property worth about $250 ; the second, on the 17th of November 1838. When the first mortgage was given, Alden owed said Richards $340, and when the second was given, he owed him $539. The sums thus due from Alden were balances of accounts for provisions furnished to him, for his tavern in Dedham, by said Richards. Alden afterwards made some payments, for which Richards gave him credit; hut at the time of the service of the present process on Richards, Alden owed him $633, a balance of account, besides a note of about $40. Part of the mortgaged property had been sold by Richards, for $ 100, and another part thereof, worth about $125, he had applied to his own use.</p> <p>Said Richards annexed his books to his answer, containing an exact account of all the articles furnished by him to Alden, and of all the moneys received by him of Alden, since 1832; and he stated, that the moneys credited in the books, the property embraced in the aforesaid mortgages, the note before mentioned, and a mortgage of real estate, (which was subject to a prior mortgage thereon,) dated April 16th 1838, to secure $ 300, were all the moneys or property which he had, in any way, received from Alden.</p> <p>Richards further stated, in his answer, that after he received said mortgages of personal property, he continued to furnish provisions to Alden, (as by his said books appeared,) and “ that he considered the property, which was mortgaged, as security for that part of the account due at the time the mortgages were made, so far as they were of sufficient value ; and that whenever said Alden afterwards paid him any sum of money, which is credited upon said books, he considered it, at the time of payment, as made towards payment for the articles delivered subsequently to the mortgages, for which he had no security ; and whenever he sold any of the mortgaged property, or took any of it for his own use, he considered the sum of money he had received for the property so mortgaged, or the value of it, which he was to allow to said Alden, as so much toward the payment of the account which was due at the time of the making of the mortgage, and which the property was mortgaged to him to secure ; that about two or three months after the mortgage was given to him, which bears date November 17th 1838, he pressed said Alden to pay him some money on his account, and that said Alden then stated to him that he would try to raise money and pay for what he had of him (Richards) after the mortgages, and keep those accounts paid up; but as he (Richards) had soma security upon the others, he must wait for that part of the account.”</p>

<p>The court has no jurisdiction in equity in cases of mere mistake.</p> <p>A. died intestate, leaving B. a son, and C. a daughter, his only lawful heirs, and D. an elder illegitimate son, who had always been recognized by A. as a lawful child, and had lived in A.’s family during his minority, and whose illegitimacy was not known nor suspected by the lawful heirs, nor shown to have been known by himself: D. claimed one third of A.’s real estate, and gave to B. a quitclaim deed of all his interest in the estate 5 for which B. gave him a promissory note : After D/s death, B. took up the note, and gave one pavabie to D.;s widow, who was his executrix and residuary legatee, and afterwards pair that note, in part, by transferring to the widow a note of J. which was payable to B.: J. afterwards took up that note and gave one to the widow, payable to herself: B. subsequently discovered the illegitimacy of D., and filed a bill in equity against the widow of J., praying for a decree that the widow had no right in the last mentioned note, and that J. should pay the amount thereof to B., and that the widow shouic give up the note to be cancelled.</p> <p>Held, that all the transactions set forth in the bill were founded on mistake 5 that no trust arose therefrom in favor oí B., of which cognizance could be taken under the Rev. Sts. c. 815 and that the bill must be dismissed for want of jurisdiction of the matter thereof.</p>

<p>W aere a testator devised specific parts of his real estate to his Wife, in fee, and bequeathed to her all his personal property, and ordered that the other part of his real estate should be disposed of as the law directs, and the wife accepted the devise and bequest made to her; it was held that she was not entitled to dower in the other part of the real estate.</p>

<p>The will of a testator was thus: “ I give, bequeath and devise to my wife the following described pieces of land,” (particularly describing them:) Also all my personal estate of every kind, wheresoever it may be found, which I may be possessed of at the time of my decease, after payment is made therefrom of my just debts, funeral charges and other necessary expenses. To have and to hold the same to her, her heirs, executors, administrators and assigns, to their use and behoof forever. The other part of my real estate is to be divided as the law directs : ” The debts, &c. of the testator exceeded the value of his personal property. Held, that the real estate, devised to the wife, was not charged with the payment of his debts, &c. and that the undevised real estate should first be applied to the payment of the excess of the debts, &c. over the value of the personal property.</p> <p>A husband subscribed for shares in the stock of a bank, and on paying the instalments, he stated that the shares were his wife's, and that she would have something to live upon, if he should spend all his property: He took receipts as for payments made by her, which payments were entered in the book of the bank, as made by the wife, and a certificate was issued to her, as owner of the shares: The husband afterwards purchased shares in the same bank, in his own name, and sometimes pledged the same to the bank as security for loans made to him, but never so pledged, nor proposed so to pledge, the shares that stood in his wife's name : He received dividends as long as he lived, on the shares that stood in his own name and on those that stood in the name of his,wife, and always requested the cashier of the bank to give him the money in two distinct and separate sums 3 and he sometimes asked for particular kinds of money for his wife, in payment of the dividends on the shares that stood in her name. Held, on the husband's death, that the wife was entitled, as against his heirs at law, to hold the shares, that stood in her name, as her own property 3 there having been a gift thereof to her by her husband, valid as against all persons except his creditors, who might resort to the shares for payment of their debts, if he did not leave other property sufficient to pay them.</p>

<p>Under the Rev. Sts. c. 82, § 12, exceptions may be alleged to the opinion, direction or judgment of the court of common pleas upon an award made under c. 114 of the same statutes : The provision, in § 13 of the latter chapter, for a writ of error in such case, is merely cumulative.</p> <p>Where an award, made under the Rev. Sts. c. 114, is returned to the court of common pleas, although the original agreement of submission is not produced and filed, yet the court has jurisdiction of the award, and ought to take cognizance thereof, upon satisfactory evidence that an agreement of submission was signed, acknowledged and certified, conformably to the statute requisitions, and has been lost, and on proof of a copy thereof, or of its contents, so full and complete as to be substan tially a copy.</p>

Writ of entry to recover a tract of land in Randolph. The case was submitted to the court on the following facts: On the 18th of April 1884, E. H. Derby owned the demanded premises, and conveyed the same to Charles Mclntire, a broker, who made a deed thereof, on the same day, and executed it on the next day, conveying the said premises to Jones, the tenant.

<p>This was a bill in equity, brought by the assignee of Jacob Shepard, a bankrupt, to redeem mortgaged real estate. The facts, as agreed by the parties, were as follows: On the 14th of April 1834, said Jacob Shepard mortgaged the estate in question to Elijah Drake, to secure payment of $ 350. On the 4th of April 1842, Isaac R. Shepard, a creditor of said Jacob, commenced a suit against him, attached his right of redeeming said estate, recovered judgment against him on the 7th of May 1842, and took out execution upon the judgment, on the 11th of said May. On the 4th of June following, an officer “ seized and took on said execution the right of redeeming said estate from said Drake’s mortgage, and on the same day gave the required notices of time and place of sale thereof.” All legal formalities were afterwards complied with, and after one adjournment of the sale, said right of redemption was sold, for $ 430, to the defendant, who paid that sum to the officer therefor, and received from him a deed thereof, in due form, and caused it to be immediately recorded in the registry of deeds.</p> <p>On the 28th of May 1842, said Jacob Shepard drew up his petition, with proper schedules of his property and debts, and made oath to the same before a commissioner in bankruptcy, and in all respects completed his petition. On the 7th of June following, he filed his said petition in the district court of the United States, and took an order of notice thereon, which was published, on the 6th of August 1842, in a newspaper, as was directed by said court ; and such proceedings were afterwards had, that on the first Tuesday of September 1842, said Shepard was duly declared a bankrupt, and the plaintiff was appointed his assignee, and had license from said district court to redeem said mortgaged estate.</p> <p>By consent of the parties to this bill, an interlocutory decree was passed, and an order of reference to a master. . The master allowed the principal and interest due on the mortgage to Drake, and a small sum which the defendant had paid for an assignment of that mortgage for the purpose of protecting his tide, and rejected the claim of the defendant to said sum of $ 430 and interest thereon — on the ground that the sale of said right of redemption was void, and that the officer’s deed thereof conveyed no right or interest in the mortgaged estate.</p> <p>The defendant excepted to the master’s rejection of said sum of $430 and interest thereon, and appealed to this court.</p> <p>The only question raised in this case was, whether Isaac R. Shepard had, at the time of the filing of the bankrupt’s petition, a lien or security on the aforesaid equity of redemption, within the meaning of the second section of the United States bankrupt act of 1841, by which it is provided “that nothing in this act contained shall be construed to annul, destroy or impair any liens, mortgages or other securities on property, real or personal, which may be valid by the laws of the States respectively ”</p>

<p>This was an action against the selectmen of the town of Brookline for refusing to put the plaintiff’s name on the list of voters of that town, and for refusing to receive his vote, at the election of governor, &c. in November 1840. Defence, that the plaintiff was not a qualified voter in that town, at that time. Trial in the court of common pleas.</p> <p>The following is the report of the case, as drawn up by the judge before whom it was tried : “ There was no evidence introduced tending to prove that the defendants acted corruptly or maliciously ; or that the refusal to put the plaintiff’s name on the list of voters, or to receive his vote, was wilfully done or knowingly wrong ; or that the defendants were actuated by improper motives, or that they acted contrary to their own conviction. There was conflicting testimony as to the plaintiff’s legal right to vote, or to have his name placed on the list of voters , and there was evidence tending to show that the defendants had carefully considered the subject, before they refused to place his name on the voting list and to receive his vote, and had taken more than usual pains to inform themselves upon the subject, by consulting counsel, &e. in order to decide rightly, and arrive at a correct result.</p> <p>“ Upon these faces and this evidence, the court instructed the jury, that if they should be satisfied that the plaintiff was legally entitled to vote, and to have his name put on the voting list, at the time aforesaid, they must find the defendants guilty, notwithstanding they acted according to their honest conviction of their duty and of the legal rights of the plaintiff, and not corruptly or wilfully, or with improper motives, or knowingly wrong; and that the defendants were liable even for an honest error of judgment in these particulars.”</p> <p>The jury returned a verdict for the plaintiff; whereupon the defendants alleged exceptions to the instructions of the court.</p>

<p>A. of Brazil, being indebted to P., H. & Co. of New York, was requested by them to make a remittance in discharge of his debt, and he thereupon shipped goods on board a vessel bound to Salem, on his own account and risk, and sent therewith bills of lading, by which the goods were made deliverable to his own order, and which were indorsed by him in blank, and enclosed to H. & Co. of New York (successors of P., H. & Co.) with authority to fill up the blank and make the goods deliverable to themselves, or to such person as they might name, with power to receive the proceeds in satisfaction of A.’s debt to P., H. & Co: On the arrival of the vessel at Salem, the bills of lading were forwarded to H. & Co., who filled up the indorsement thereon by making the goods deliverable to C., H. & Co. of Bos. ton, who were to pay duties and freight, dispose of the goods, and account for the proceeds thereof in payment of A.'s said debt: C., H. & Co. thereupon went to Salem, received the goods and entered them at the custom house, gave bond for the duties, and became responsible for the freight: While the goods were in their possession, the same were attached as the property of P., H. &. Co. 5 whereupon C., H. & Co. brought an action of replevin against the attaching officer.</p> <p>Held, that the property in the goods had.not vested in P., H. & Co., and that C., H. & Co. were entitled to maintain their action.</p>

<p>This was a writ of review, brought by the Ipswich Manufacturing Company, to reverse a judgment recovered against them by Jonathan Story, executor of the will of Elizabeth Cogswell, at the November term 1839. That judgment was rendered on a special writ of entry, commenced by said Elizabeth, in her life time, and prosecuted by her executor, after her decease; in which writ she demanded possession of certain parcels of real estate in Ipswich, by virtue of two distinct mortgages ; on one of which she claimed as assignee thereof, and on the other, as original mortgagee. Plea, the general issue.</p> <p>The trial, on the review, was before the chief justice, and a verdict was taken for the original demandant, the defendant in review, subject to be amended, or to be entered for the original tenants, according to the opinion of the whole court on the judge’s report of the evidence.</p> <p>After the trial, it became unnecessary, by reason of other proceedings of the plaintiffs in review, for the court to give any opinion, in this case, as to the original demandant’s right to recover judgment on the mortgage on which she claimed as original mortgagee. The facts, therefore, respecting that mortgage, are not noticed in the opinion of the court.</p> <p>This case was argued at the last November term.</p>

Writ of entry to recover a parcel of land in Salem. The denandant counted on his own seizin, and a disseizin by the tenant. A.t the trial before the chief justice, the demandant gave in evidence a judgment recovered by him against the Salem and Boston Stage Company, incorporated by St. 1828, c. 136, and a levy of the execution, which issued on that judgment, upon the demanded premises, as the property of James Perkins, who was a member of that company.

The question whether the Savings Institution in Salem was chargeable as trustee of the principal defendant, was submitted to the court on the following facts : In July 1832, Venus Chew, wife of said defendant, deposited $ 50 in said institution, and took therefor a deposit book in her own name.

<p>This was a petition for partition, in which the petitioners prayed that one undivided fifth part of certain parcels of land, and a dwellinghouse and its appurtenances, might be set off to them in severalty.</p> <p>The petitioners claimed title as devisees under the last will of Thomas Roberts, late of Hamilton, who, at the time of the execution of his will, and at the time of his decease, was the owner in fee of one undivided half of the real estate described in the petition, as tenant in common with his brother, Francis Roberts ; and the petition alleged that the respondents were seized, in common with the petitioners, of the premises described in the petition, as devisees, either in fee or for life, under the same will.</p> <p>The respondents pleaded the general issue, viz. that the petitioners did not hold in manner and form, &c.</p> <p>Thomas Roberts died in October 1833, and his will was duly proved and allowed. Francis Roberts died intestate, in December 1833.</p> <p>The clauses in the said will of Thomas Roberts, on which the questions in this case arose, were these : “ I give to Sally, wife of Ezekiel Allen, and her children, one fifth part of all my real estate in common with my brother Francis Roberts, and one fourth part of my household furniture-; also one fourth part of my pew, in the meetinghouse, in common : I give to widow Mary Hoyt one" fifth part of all my real estate, and one fourth part of my household furniture, and one fourth part of the pew •- I give to Abigail Roberts one fifth part of all my real estate. and one fourth part of my household furniture ; also one fourth part of the pew, and one fourth .part of the dwellinghouse in common with my brother: I give to Elizabeth Roberts two fifths of all my real estate, in consequence of her blindness; also one fourth part of the dwellinghouse lying in common, as abovementioned ; also one fourth part of my household furniture, and one fourth part of the pew, as abovenamed.”</p> <p>The heirs at law of Francis Roberts were the three respondents, viz. Mary Hoyt, Abigail Edwards, wdfe of Benjamin Edwards, and Elizabeth Roberts, together with Sally Allen, (one of the petitioners,) and the five children of a deceased niece of said Francis.</p> <p>At the time of the decease of said Thomas Roberts, the petitioners had four children, all under the age of 21 years, twj only of whom had come of age at the hearing of this case.</p> <p>After the decease of said Francis Roberts, the real estate, which was owned in common by him and his brother, was divided by legal partition in the probate court, and the portion that was assigned to the heirs of said Francis, was set off to his abovenamed heirs at law. His widow, to whom one third of his estate was set off as dower, died after the present petition was filed, and the reversion in that part of said Francis’s estate had not been divided among said heirs.</p> <p>The respondents claimed the right to have included in the petition all the real estate which was owned in common by said Thomas and Francis, and contended that the petitioners were not entitled to partition of the one undivided half which was devised to them by said Thomas, without including the estate which descended to them from said Francis.</p> <p>It was agreed by the parties, that if the court should be of opinion, on the foregoing statement, that all the estate which was owned by said Francis Roberts ought to be included in the petition, or if the children of the petitioners ought to have been made parties, then the petition should be amended accordingly, and judgment for partition be entered ; otherwise, that the petitioners should have judgment for partition on the petition in its present form.</p>

<p>The defendants were convicted, at the last March term ol the court of common pleas, of the offence of resisting a deputy sheriff in the execution of the duties of his office ; and they alleged exceptions to the order of the court overruling a motion filed by them in arrest of judgment. They thereupon entered into a recognizance for their appearance at the present term of this court, and to enter and prosecute their exceptions with effect, &c. There was an intermediate term of this court in April last; but the defendants did not appear and enter their exceptions, either at that term or at the present.</p> <p>The Attorney General now consented that the defendants might enter the exceptions as of April term, and bring them forwaru for argument. The defendants’ counsel declined so to do, and contended that there was a discontinuance of the whole case, because the Rev. Sts. c. 138, § 13, require that parties, who file exceptions in the court below, shall recognize to the Commonwealth for their appearance “ at the supreme judicial court next to be held for the same county, and to enter and prose cute,” &c. ; that the recognizance of the defendants was void, because the court below had no authority to order or to take it; and that this court could in no way take cognizance of the cause.</p> <p>The question, what should be done in the premises, was referred to the court.</p>

This was a writ of error to reverse a judgment of the municipal court of the city of Boston, by which the plaintiff in error was sentenced to solitary imprisonment, and confinement at hard labor in the state prison. The scire facias to hear errors, in this case, was served upon the Attorney General, three or four days only before the commencement of the present term, and he therefore moved that the writ might be dismissed, or the case be continued, and a new service made.

Trespass for breaking and entering the plaintiffs’ close m Andover, on the 24th of November 1840, and on divers other days, and cutting down and carrying away trees there growing. The plaintiffs sued as executors of the last will of George French, which was executed in July, and was proved and allowed in October, 1837.

<p>This was a complaint, originally brought before a justice ol the peace, on the Rev. Sts. c. 104, for forcible entry and detainer of a dwellinghouse in Lynn. On the trial in the court of common pleas, the defendant claimed title to the premises m question. The plaintiff gave evidence that the house was mortgaged to him by Henry Breed, that the mortgage was foreclosed, and that he received possession under a writ of habere facias.</p> <p>Andrew Breed testified, that he was the plaintiff’s agent to take care of said house and collect the rents ; that in December 1840, a part of the house was vacant, and the defendant, about that time, twice asked him to let that part of the house to her, which he declined to do; that he, on the 29 th of said December, saw a teamster putting furniture into the house, and directed him to desist, and to take out what he had put in ; that he then entered the house and met the defendant in the entry ; that she then said the furniture was hers and that she <£ was going to occupy the house ; ” that he forbade her to remain in the house, and ordered her to leave it, and to take out her furniture ; that she thereupon said she ££ had a right there, and she and her furniture should both stay there ” ; that he then repeated his orders to her and to the teamster, and told her that if she remained there, «he would remain as a trespasser ; that he afterwards went to the house, and the defendant said, if he would let her stay a little while, she would leave the house; that he refused to give her any permission, and ordered her to quit; that she thereupon said she had consulted counsel, and had a right to stay in the house, and she would stay; that he called again on the defendant, in January 1841, and understood her to say she would quit peaceably on the first of April; that he did not then agree to let her stay, but directed her to leave immediately : That he called on the defendant on the first of April, and ordered her to quit, and that she then answered, that she had consulted counsel, and should continue to hold the house ; that he replied, she was lucky in being a woman, or he would put her out of the house ; and she rejoined, that she should like to see him do it.</p> <p>The witness further stated, that he did not touch the defendant nor her furniture, and that she did not touch nor threaten him, nor order him to go out of the house.</p> <p>It was not suggested by the plaintiff, that the relation of landlord and tenant existed between him and the defendant.</p> <p>The judge, who tried the cause, ruled that the plaintiff, under the foregoing evidence, could not maintain his complaint ; and he instructed the jury, “ that the summary process, here instituted by the plaintiff, could not be maintained in the absence of all relation of landlord and tenant between the parties, unless there was evidence of an actual forcible entry or detainer by violence, or threats of violence, in taking or keeping possession, or some act or threat of force, calculated to alarm the plaintiff or his agent, or deter him, from apprehension of forcible resistance ; and that there was no such evidence of force here, in taking or keeping possession, as would sustain the complaint.”</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions to the above ruling and instructions of the judge.</p>

Debt on a bond for the liberty of the jail limits. The following facts were agreed by the parties : The defendant, Lakeman, on the 10th of August 1841, was committed to the jail in Ipswich, upon an execution that issued on a judgment recovered against him by the plaintiff, and afterwards gave bond, with the other defendants as his sureties, in the form and with the condition prescribed by the Rev. Sts. c. 97, § 63 ; but he did not surrender himself to the jailer, at the…

<p>Assumpsit to recover expenses incurred by the plaintiffs in supporting a minor child of Stephen Perkins, as a pauper, whose settlement was alleged to be in Topsfield.</p> <p>It was agreed by the parties, that the plaintiffs were entitled to recover, unless said Stephen, the pauper’s father, had a settlement in Ipswich. The question of his settlement was submitted to the court on the following facts : Thomas Heady, by his last will, which was proved and allowed in May 1809, devised all his real estate to his wife, to hold during her widowhood, on condition that she should support his two youngest sons, John and William, until they should be able to provide for themselves. He also devised all his real estate to his said two sons, their heirs and assigns forever, to be equally divided between them ; they to come into possession of the same at the marriage or decease of their mother, whichever should first happen.</p> <p>The said John and William Heady remained with their mother, and were supported by her, during their minority; and on coming of age, they removed from her. The real estate devised as aforesaid, was situate in Ipswich, and consisted of a house and about three fourths of an acre of upland, a lot of marsh land, and a pew in the south meetinghouse. The testator’s widow died unmarried, in the year 1841. On the 4th of December 1835, the said William Heady, by deed of quitclaim, conveyed to said Stephen Perkins one undivided half of the aforesaid real estate, subject to the right of said widow “ to improve and occupy the same during her natural life or widowhood.”</p> <p>At the time when this deed was given, said Perkins was n the occupation of a part of said real estate, as tenant of the widow, and continued so to occupy for more than three years afterwards, viz. until March 1839, under an agreement to pay rent. Before the year 1835, the widow bought a small shop and caused it to be placed on the devised land, near the house ; and in December 1838, she sold it to said Perkins, who occupied it, with the rest of the premises, a few weeks, when it was attached, with all his interest in the piemises, and was applied to the payment of his debts. But he never resided nor slept in the shop.</p> <p>Since the year 1839, all said real estate was occupied by tenants, who paid rent for the whole to the widow or her administrator, up to the time of her decease.</p>

<p>V^here the indorser and holder of a note reside in the same place where the note is dishonored, notice of the dishonor must be given to the indorser personally, or at his domicil or place of business, and not through the post office.</p> <p>P. went with his family to Bangor, in the autumn of 1835, and lived at board, with his family* in different houses in that place, until the autumn of 1836: During this time, P. was often absent on business, and once took his family, for some weeks, to another place: He had a place of business in the counting room of W. & R.} and no other place of business in Bangor 3 and his papers were left, during his absence, in the care of W.* and were not taken away till the autumn of 1836 : On the 26th of July 1836, a note, which was indorsed by P., fell due and was dishonored, at Bangor, by the maker’s refusal to pay it 5 and it did not appear whether P. was or was not in Bangor, on that day. Held, that P.,, on said 26th of July, had a domicil and place of business in Bangor, at one of which, if he was then absent, notice of the dishonor of the note should have been left.</p> <p>A note payable to P. or order, and indorsed by P. & R. was lodged in a bank in the city of B. where the maker and the indorsers had a domicil when the note fell due t The note was presented, by a notary public, to the maker for payment, which was refused 3 whereupon the notary made out a notice for P., directed to him at B., and put it into the post office at B.: In. a suit by the holder of the note against P. as indorser, the notary testified that he {t was not able to find P. or any body who could tell him where he was 3 that he inquired of the cashier of the bank, and others, for P.’s residence, but was unable to learn from any one where he then resided: ” He did not, however, make any inquiry of the maker or second indorser respecting P.’s residence. Held, that the notary had not used that reasonable diligence to ascertain P.’s residence which would excuse the want of legal notice to him oF the dishonor of the note.</p>

<p>Where a debtor mortgages his goods after they are attached, and dies before they are taken or seized on execution, the attachment is dissolved, by virtue of the Rev. Sts. c. 90, § 105, though the mortgagor's estate is insolvent. And in such case, if the attaching officer deliver the goods to the administrator of the mortgagor, on his demanding them and paying him his fees and charges, as directed by Rev. Sts. e. 90, § 106, the mortgagee, on demand upon the administrator for the goods, and his refusal to deliver them, may maintain an action of replevin for the goods, against the administrator, without first paying or tendering to him the amount paid by him to the officer for fees and charges of attachment.</p>

<p>Where a collector, appointed by commissioners under the Rev. Sts. c. 115, regulating u proceedings for improving meadows,” &c., has a warrant from such commissioners, lawful on its face, directing him to collect assessments made by them on the proprietors of meadows, &c., and he seizes and sells the property of such proprie tors, pursuant to his warrant, he is not liable to an action of trespass, although the proceedings previous to the issuing of the warrant were not such as authorized the commissioners to make the assessments. Such warrant is his sufficient justification</p>

<p>Writ of entry to recover possession of a parcel of land in Danvers.</p> <p>At the trial before Wilde, J. the demandant offered in evidence the record of a former action of trespass quare clausum fregit, brought by him against the tenant. That action was submitted to referees, by a rule entered into in this court, at November term 1840; and it was therein agreed that the referees were “to settle the division line between the locus in quo and the land of the defendant.” The referees, after hearing the parties, returned their award to this court, and it was accepted, and judgment was thereupon rendered for said Good-ridge. The award was, first, that said Dustin was guilty of the trespass alleged against him in said Goodridge’s writ, and that said Goodridge recover damages and costs ; and secondly, “ that the boundary or division line between the estates of said Good-ridge and said Dustin, in Danvers, on the southerly side of the Reading road, and westerly of Foster Street, be fixed and established ” as specifically and minutely stated in said award.</p> <p>It was admitted by the tenant, that if the line established by the referees was the boundary line between his land and that of the demandant, the latter was entitled to recover possession of the premises demanded in his writ.</p> <p>The tenant offered to prove that the true boundary line between the lands of the parties was not that which was fixed by the referees, and that they erred in judgment, on the evidence submitted to them, and exceeded their authority, in the award made oy them, as appears on the face of the papers.</p> <p>The judge excluded this evidence, and ruled that the award and the record of the judgment aforesaid were conclusive evidence of title in the demandant up to the time fixed by the referees.</p> <p>A verdict was returned for the demandant. Judgment to be entered on the verdict, if said ruling was right■, otherwise, a new trial to be ordered.</p>

This was a proceeding upon a petition to the county commissioners for a jury to assess damages, alleged to have been sustained by the petitioners, by the laying out and construction of the eastern rail road over their land in Salem. The commissioners issued a warrant to the sheriff, requiring him to summon a jury to hear and determine the matter of the petitioners’ complaint, and the sheriff performed the duty thus required of him.

Assumpsit for work and labor, and materials found, in manufacturing cloth for the defendant in the years 1838 and 1839. Trial in the court of common pleas, at the last September term. At a previous term of that court, an auditor had been appointed to hear the parties, and examine their vouchers and evidence, and to state the accounts, and make report thereof.

<p>This was a writ of scire facias against bail, dated December 11th 1840. The case was submitted to the court of common pleas, on the following facts :</p> <p>The defendants, on the 22d of February 1840, became bail for Martin T. Draper, in a suit brought against him by the plaintiff, in which suit the plaintiff recovered judgment against said Draper, at the July term 1840, of the court of common pleas in this county, for $ 392.73, debt or damage, and costs of suit. Execution issued on said judgment, August 10th 1840, and was delivered to an officer for service, who returned the same wholly unsatisfied, when it was, by law and the precept thereof, returnable, with an indorsement thereon that he had made diligent search for the goods and chattels of said Draper, and also for his body, but could find neither.</p> <p>At the May term, 1840, of the court of common pleas, held in the county of Worcester, said Draper was convicted of the crime of perjury, and was sentenced to five years’ confinement at hard labor in the state prison, and has ever since been, and now is, in said prison, in execution of said sentence.</p> <p>The crime of perjury, of which said Draper was convicted, as aforesaid, was committed in the county of Worcester, in December 1839; and the plaintiff, Way, was the complainant in the prosecution, and a witness on the trial of said Draper for said crime.</p> <p>The defendants have moved this court for a writ of habeas corpus, to be directed to the keeper of the state prison, commanding him to have the body of said Draper in court, at such time as they shall fix upon, that the defendants may, upon payment of the costs of this suit, formally surrender said Draper in court, and be discharged from further liability ; which motion has been refused and overruled.</p> <p>On these facts, the court of common pleas rendered judgment for the defendants, and the plaintiff appealed to this court.</p> <p>This case was argued at the last March term.</p>

<p>A commission merchant, to whom the cargo of a vessel is consigned for sale, has an insurable interest in his expected commissions, and may insure the same while the vessel is on her voyage.</p>

<p>The plaintiff, in a bill in equity, alleged that Mary Clap, late of Boston, deceased, by her last will, executed August 10th 1832, and proved and allowed April 4th 1842, devised to the plaintiff an undivided portion of certain real and personal estate, “ in trust for his sister, Elizabeth Prentiss,” [niece of said Mary, the testatrix,] “and to her heirs and assigns forever; the interest to be paid to her or her order, during life, for her sole and separate use : ” That said Elizabeth died while the testatrix was alive, leaving the defendant, Mary Ann P. Prentiss, her only child, then and still a minor : That the plaintiff had assumed the aforesaid trust, under said will, believing himself entitled, under the Rev. Sts. c. 62, to take the estate so devised, and to hold the same, in like manner as if said Elizabeth had survived the testatrix ; and that he had endeavored to perform the trust, for the benefit of said Mary Ann P. : That the situation and condition of the real estate devised to him, as aforesaid, were such, that little or no income could be obtained therefrom ; and that a sale of the same, and an investment of the proceeds in some safe and productive manner, were required for the benefit of said minor : That the other parties, interested in said real estate, concurred with the plaintiff in opinion, and were about uniting in a sale of all their respective shares therein, as the best disposition that could be made thereof.</p> <p>The plaintiff therefore prayed that his power and duties under said will might be declared by the court, and that he might be authorized, and by a decree directed, to join in a sale of the share of the real estate, so as aforesaid devised to him in trust; or that such other decree might be passed, as should be fitted to the nature of the case. He also prayed that a subpoena might issue to the said Mary Ann P., commanding her to appear and answer.</p> <p>The answer of the defendant (made by her guardian ap pointed by the court for this case) confessed the facts stated in the bill, and submitted her rights and interests to the protection of the court; averring that “ whether the plaintiff had any greater legal estate devised to him, than for the life of her mother, or whether he is now a trustee thereof under said will, she knows not, but claims to be entitled absolutely, in her own right, to the share and portion devised for the life of her said mother.”</p> <p>Written arguments were submitted to the court, in June 1842.</p>

This action was commenced against William, Alexandei and George Qakley, formerly partners in business at Boston, as the drawers of two bills of exchange upon a firm at New York, who accepted, but failed.to pay them at maturity. One of the bills became payable in May, and the other in September, 1826, and were purchased by the plaintiff, after they were dishonored.

<p>The defendant was indicted and tried in the municipal court, at the December term thereof, 1842, for undertaking to pilot the barque Empress, a foreign vessel, into the port of Boston, on the 3d of April 1842, m violation of the provisions of the Rev. Sts. c. 32.</p> <p>It was in evidence at the trial, that said barque was a foreign vessel, of 345 tons burthen, and had been chartered in New York, by B. P. Winslow, to come to Boston and thence to go to London. Three commissioned pilots for the port of Boston testified, that they hailed said barque, on thé night of the 3d of said April, about four miles outside of the line mentioned in the Rev. Sts. c. 32, § 24 ; but that although the barque was within hailing distance and they could hear the creaking of her blocks, and from their position at the windward of her, they believed their hail must have been heard ; and although they followed her for some time and repeated the hail; yet no answer was returned. An other Boston pilot testified, that the Empress came up, that night, in the wake of the Ranger, a barque which he was piloting in at the same time, and that she came to in the harbor of Boston within 300 rods of the Ranger, and was there at anchor on the next morning. Another Boston pilot testified, that the defendant boasted to him, some weeks afterwards, that he came to Boston in the barque Empress.</p> <p>In the defence, and to show that the defendant was lawfully on board the Empress, he offered his warrant as a branch pilot for the coast of Martha’s Vineyard and over Nantucket Shoals.</p> <p>But the judge ruled it out; being of opinion that it did not authorize the defendant to pilot the Empress into the harbor of Boston, when a Boston pilot had tendered his services. It was then stated by tlw defendant’s counsel, that the warrant tended to prove that he was lawfully on board at the time. The> judge remark»d that if the defendant was on board the barque with the captain’s consent, he was lawfully there.</p> <p>The defendant contended that it was incumbent on the pilot, «vho tendered his services, to have his warrant with him ht the time. But the judge ruled, that as no answer was returned from the barque, and no warrant demanded, it was not necessary to prove that the pilot then had his warrant with him ; and that it was to be presumed, under the circumstances, that he would have shown his warrant, if demanded.</p> <p>It was in evidence, that when the master of the Empress, captain Scott, was called upon in Boston for the pilotage fee, he refused to pay ; that he and a clerk of said B. P. Winslow then went with S. Colby, the pilot who demanded his fee, to Caleb Curtis, Esq., one of the commissioners of pilotage in the harbor of Boston, “ and appealed to him whether the fee should be paid.” The defendant objected to the admission in evidence of what took place and was said at that time, in his absence But the objection was overruled ; and it was testified, that captain Scott, on that occasion, said he was a stranger, and that on the night of said 3d of April he was below deck and had a pilot on board, to whom he had paid five dollars for the service. The commissioner decided that the pilotage was due, according to usage, but as the captain was a stranger and had paid five dollars, it would be hard to require him to pay it again; and it was determined that the pilot’s bill should be paid, deducting five dollars. It was accordingly so paid.</p> <p>The defendant contended that the master of the vessel only was liable to the penalty mentioned in the Rev. Sts. c. 32, § 23. But the judge instructed the jury, “ that when a master refuses the services of a pilot, duly tendered, and chooses to conduct his own vessel into port, he is entitled so to do, or to employ another person ; but that the pilot earns his full pilotage fee, by &e tender, and is entitled to demand it : That this was not a penalty on the master, in its legal acceptation : That while the ,aw secured to the master the right to pilot his own vessel, it gave the pilot the reasonable reward of his service : That though a master might lawfully refuse to employ a pilot who tendered his services, and might pilot his own vessel, it would not justify a third person, not having a warrant nor duly authorized, to undertake to pilot the vessel into the harbor : That such person would incur the penalty ; but the master would still be liable to pay the full pilotage : And further ; that the payment of the pilotage by the master, under such circumstances, would be no bar to the penalty claimed of such unauthorized person.”</p> <p>The defendant contended that the pilot’s offer of service must be an actual offer to the master of the vessel, who must have actúa, knowledge thereof, and that hailing the vessel was not sufficient. But the judge ruled, that if the jury believed that there was all the tender, in this case, which the time of night and the circumstances permitted, and that it was heard on board, although not answered, it was sufficient: And further ; that captain Scott should have been ready himself, or have appointed some other officer of the vessel, to answer the hail and to receive the pilot, if any offered.</p> <p>The defendant offered in evidence the depositions of captain Scott and Stephen Larkin, master and mate of the Empress, taken in perpetuam before the finding of this indictment. These depositions were ruled out.</p> <p>The judge finally instructed the jury, that if they believed, from the evidence, that the defendant did pilot in the Empress, as alleged in the indictment, they must find him guilty ; but if they were not satisfied of that fact, he was entitled to their ver diet of acquittal.</p> <p>After the jury had been out some time, they were permitted to return, and they inquired as to the fact whether the Empress had ever before been in the port of Boston. The judge thereupon remarked, that it was conformable to the practice of the court in such cases, to call the witness and to permit the jury to make any additional inquiry. The counsel for the defendant stated to the judge that they did not assent to the recalling of any witness. An officer was sent to call in B. P. Winslow, (who had chartered the Empress,) to answer the inquiry made by the jury. While the officer was gone, inquiry was made, on this point, of one of the pilot commissioners, who had been before examined as a witness, and" he made certain statements rendering it probable that the Empress had never before been in Boston ; and when he was asked by the defendant’s counsel whether he had previously testified as to that point, he declined a positive answer.</p> <p>The judge then referred to his minutes, and told the juiy tha it was proved on the trial, that the barque was a foreign vessel, and that captain Scott was a stranger in ■ the port of Boston ; and that, in the absence of all evidence to show that either the captain or the vessel had ever been in Boston before, the jury nad a right to infer that they had not.</p> <p>The jury found the defendant guilty, Whereupon the defendant alleged exceptions to all the foregoing opinions and rulings of the judge.</p>

In an action oí covenant broken, the plaintiff alleged in his declaration that the defendant’s intestate, David Dudley, by a deed, dated April 20th 1835, conveyed to the plaintiff a parcel of land in Roxbury, and therein covenanted that the premises, so conveyed, were free from all incumbrances, and that he would warrant and defend the same against the lawful claims and demands of all persons ; “ but that there was, long before and at the time, and ever since the making of…

Debt on a judgment of the court of common pleas held in the county of Kennebec, in the State of Maine, on the first Tuesday of April 1838. At the trial, in the court of common pleas in this county, at the October term, 1841, the only question was, whether the record of the judgment declared on was so authenticated as to be admissible in evidence.

<p>Assumpsit on a policy of insurance, dated February 7th 1840, by which the defendants caused the plaintiff to be insured $15,000 on coffee, the produce of the plaintiff’s estate, on board any vessel or vessels at and from Matanzas to Boston, “ to be shipped between February 1st and July 15th 1840,” said coffee being “ valued at $ 12.50 per 100 Spanish pounds on board, including premium.” The declaration averred a loss, by the perils of the sea, of 90 bags of such coffee laden on board the brig Emery, by the plaintiff, between the days aforesaid.</p> <p>The case was submitted to the court on an agreed statement of facts, of which only the following are material: The policy declared on was made at the time and in the terms stated in the plaintiff’s declaration. By another policy, dated July 14th 1840, the defendants caused the plaintiff to be insured $4000 on coffee on board any vessel or vessels at and from Matanzas to Boston, “ to be shipped subsequently to July 14th 1840, and prior to October 15th 1840 : All shipments made subsequently to July 20th to be valued at $ 12.50 per 100 Spanish pounds.” Ninety bags of coffee, belonging to the plaintiff, and weighing 14,980 pounds, were shipped on board the brig Emery, at Matanzas, on the 15th of July 1840, and were lost by the perils of the sea while said brig was pursuing her voyage to Boston. The invoice price of said coffee was $ 1381.07J.</p> <p>On these facts, the only question between the parties was, whether the lost coffee was insured by the valued policy declared on, or by the subsequent policy of July 14th, which was not valued. If it was insured by the latter, the defendants claimed a right to be discharged by a payment which they had made to the plaintiff for the coffee at the invoice price, under an agreement that neither party should be prejudiced by such payment.</p>

<p>Where a debtor deposits notes with his creditor, as collateral security, to be col lected and accounted for, or to be returned within a specified time, and the creditor thereupon covenants or promises not to sue the debtor until the securities shall be given up 5 such covenant or promise is not a bar to a suit by the creditor, though brought before he has given up the securities.</p>

<p>Writ of entry to recover a small parcel of land in Boston, bounded northeasterly on land over which Blackstone Street has recently been laid out and established. The demandants counted on their own seizin within thirty years, and claimed as tenants in common in different proportions, as heirs of the late Governor Hancock. Thomas Hancock, one of the demand-ants, died intestate, after the action was commenced, leaving John Hancock, another of the demandants, his sole heir at law, who claimed a right to proceed in the suit for his proportion of the demanded premises, as enlarged by descent from said Thomas.</p> <p>The writ was dated December 31st 1839. Plea nul disseizin, with the following (among other) specifications of defence ; viz. that the tenant has had uninterrupted, exclusive and adverse possession of the demanded premises, and a good title thereto, more than 50 years next preceding the date of the writ; that the demandants, and those under whom they claim, have had no seizin of the demanded premises within 50 years; and that on or about the 1st of August 1833, the city of Boston, by their mayor and aldermen, legally laid out and opened a highway or street, called Blackstone Street, over a part of the demanded premises, and that said street is still open and continued.</p> <p>The trial was before the chief justice, who made a report of the case, in substance as follows : The demandants introduced evidence that Governor Hancock, in 1785, owned a considerable tract of land adjoining the old Mill Creek, of which the demanded premises were then parcel, and that he, on the 24th of August in that year, conveyed to the tenant, in fee, a house and yard adjoining, in two parcels precisely described and bounded, but not including the demanded premises, with the right of a passage way over other lands of the grantor, and “ also the privilege in common to the privy or privies on the Mill Creek adjoining Mr. Stickney’s barn house- on said creek.” It appeared that the tenement, thus conveyed to the tenant, was one of several similar tenements, called Hancock’s Row ; that there was, in the rear of said tenements, and lying between them and Mill Creek, an open piece of land, being part of the tract owned by Governor Hancock, across which open piece access was had, from the tenant’s tenement and three other tenements, to the said outhouses on the margin of the creek. This piece of land, then open, constitutes the demanded premises.</p> <p>It further appeared, that in 1832 the mayor and aldermen of Boston, being duly authorized, caused the Mill Creek (which was a broad and deep watercourse flowed by the tide) to be filled up, and caused the site thereof, together with a portion of the land adjoining on the southerly side, including part of the demanded premises, to be laid out as a public highway, called Blackstone Street.</p> <p>There was evidence tending to show, that in the year 1820 or 1821, a ten foot building was erected on the premises, covering the rear thereof next to the creek, and coming up towards the front; that said building was inclosed by a fence ; that the building and yard were occupied ; and that the building and fence were erected by the defendant, or by him with others, and that he claimed an interest in the building, and received rent for it.</p> <p>It also appeared that some of the demandants peaceably entered upon the demanded premises, before the commencement of this action, and there claimed title and exercised some formal act of ownership.</p> <p>The jury were instructed, that if a seizin of the demanded premises was proved to be in Governor Hancock in the year 1785, that seizin would be presumed to continue till his death ; and that unless an alienation or disseizin were proved, he would be presumed to die seized, arid the estate, subject to the easement upon it, to descend to his heirs : That by the deed from him to the tenant, the latter acquired no title to the demanded premises, but only to. an easement, by necessary implication, of a right of passage way over the premises, to and from the out houses on Mill Creek : That the use of the land in question, so far as it was necessary or convenient to enable the tenant, or those occupying his estate, to have the benefit of the easement, was not adverse to the title of the owner, and would not tend to show a disseizin : That by the filling up of the creek and converting the site of it, together with a part of the land on the southerly side of it, embracing the entire site of said outhouses, the easement was extinguished, and that, consequently, the right of way to them, by implication, over the demanded premises, was extinguished and no longer existed : But that whether such easement were extinguished, or not, was immaterial to the issue, because the right of soil, demanded in this action, was not inconsistent with the tenant’s easement, if it still continued ; and that the demandants, if otherwise entitled, would have a right to recover in this action, notwithstanding such easement: That it is no objection to the demandants’ right to recover the demanded premises, that a part of the same is now covered by a public highway; such highway constituting a mere public easement, not inconsistent with the seizin in fee put in issue in this action : That whether the act of erecting a building on the demanded premises, and inclosing them, in 1820 or 1821, was done by the tenant, or by him and others, or whether it amounted to a disseizin of the heirs of Governor Hancock, or not, was immaterial, if, as appeared by uncontradicted evidence, the demandants, or some of them, entered before the commencement of this action ; as such entry purged the disseizin, if there were any, and entitled them to bring the action on their own seizin.</p> <p>The jury were further instructed, that if they should find a verdict for the demandants, they might find a general verdict for such proportion of the demanded premise® as the aggregate of their respective shares would amount to — the writ not includ ing, as demandants, all the heirs of Governor Hancock.</p> <p>The jury were also instructed, that it was unnecessary to specify, in their verdict, (if they should find for the demandants,) whether the premises were' subject to an easement in favor of the tenant, or not ; on the ground that such easement was not in issue, in this action, and would not be affected by the judgment.</p> <p>The jury found “that the tenant did disseize the demandants of 133-180ths of the demanded premises, in manner and form,” &c.</p> <p>“If, in the opinion of the whole court, the proportion of each demandant should have been specified in the verdict, or that the easement is not extinguished, and that it ought to have been specified, the verdict may be amended, and the judgment entered accordingly, as the court may order. And on the whole case stated, the verdict is subject to the opinion of the whole court, upon all questions of law arising thereon.”</p>

<p>A. purchased of B. a cargo of yellow and white corn on board B.'s schooner, the quantity not being known, and agreed to pay one sum per bushel for the yellow and another sum per bushel for the white 3 B. warranting it to be of a certain quality: A. paid B. $ 1200, ** on account of corn per schoonerThe schooner was* hauled to A/s wharf, and he took therefrom and put into his warehouse a part of the corn, and then refused to receive any more, because the residue was not such as B. had warranted it to be, and immediately gave notice to B. that he would receive no more of the cargo, and requested B. to take the schooner away : The corn thus taken by A. amounted, at the agreed price per bushel, to $ 1067 3 and A. sued B., in an action for money had and received, to recover back the difference between that sum and $ 1200. Held, that the contract was entire, and that the action could not be maintained 3 that A. might have rescinded the contract by returning all the corn, and then have maintained an action to recover back the money advanced 3 or might have maintained an action on the warranty.</p>

<p>Where a testator, by his will, authorizes his executors to sell and convey his real estate which is not specifically devised, at such times as they shall think proper, and such sale is not required for the purpose of effecting any other provisions of the will, the executors have a mere naked power to sell, not coupled with a trust.</p> <p>Where a testator by his will gives a naked power to his executors, or such of them as shall take upon themselves the probate of his will, to sell and convey his real estate, and appoints two executors, who accept the trust and cause the will to be proved, and one of them afterwards resigns his trust, as executor, and is discharged therefrom by a decree of. the probate court, the other executor has no authority, by the will, to sell and convey the testator’s real estate: But if he has such authority, yet if he makes a contract for the sale of such estate to the executor who has resigned, he being one of the testator’s heirs and devisees, and also, by the testator’s will, trustee for other heirs and devisees, the court will not enforce specific performance of the contract 5 contracts, by which a trustee becomes the purchaser of the trust estate, being contrary to the policy of the law.</p>

<p>These were writs of entry, in which the several demandants sought to recover of George Sparhawk and Mary S. his wife, and Paschal P. Pope, the same parcel of land, viz. a narrow piece of flats situated in a cove at the southerly part of Boston, westerly, of Washington Street. Writs dated Feb. 9th 1842.</p> <p>At the trial, before Wilde, J. it was admitted that Robert P. Tolman and Mary his wife, in her right, were lawfully seized in fee, prior to the year 1822, of a parcel of upland on Washington Street, and of the flats legally appurtenant thereto; and that Johnson Jackson (the father of Mary S. Sparhawk, one of the tenants, and of Benjamin C. Jackson, under whom Paschal P. Pope, another of the tenants, claims title) was lawfully seized of another parcel of upland on Washington Street, adjoining northerly on said land of Tolman and wife, and of the flats legally appurtenant thereto ; and that said Johnson Jackson died so seized, on the 16th of November 1824.</p> <p>The Rail Road Corporation, demandants in the first action, put into the case a deed from said Robert P. Tolman, (who died on the 5th of September 1839,) and Mary his wife, in her right, dated May 7th 1833, whereby they conveyed to said cor poration their said upland on Washington Street, “ and all the flats legally appurtenant thereto.” They then called Stephen P. Fuller as a witness, who testified that the southerly line of the demanded premises (as laid down on a plan which he produced) was the line fixed by the decision of the court in the suit heretofore instituted by Sparhawk and wife,* as the northerly line of the Jackson estate : That he was employed, under the direction of the court, in that case, to lay down the lines dividing a section of the cove, and that this line between the Tolman estate and the Jackson estate was one of those lines : That the plan which he produced was made by him, and that the southerly line of the demanded premises, as described in the demandants’ writs, was the line fixed by the court, as above mentioned, and as laid down on said plan.</p> <p>The witness was then examined by the tenants ; and he testified, that on the 24th of August 1822, Edward Tuckerman, (who owned a lot bordering on the cove, and next southerly of the Jackson lot,) Johnson Jackson, Robert P. Tolman, and Thomas Brewer, (who owned the lot next northerly of the Tolman lot,) met on the land for the purpose of running the lines on the flats : That they agreed that Tuckerman’s line should run parallel with Castle Street, (a street running westerly from Washington Street to the cove,) and 73 feet and 4 inches distant therefrom ; that Jackson’s line should run 67 feet and 10 inches from Tuckerman’s, and the line of the Tolman lot 94 feet from Jackson’s : That on the 29th of the same August, the witness ran out these lines, and that stakes were driven into the mud, from 50 to 100 feet apart, to show said lines, and extended from 500 to 600 feet down on the flats : That after the Rail Road Corporation purchased of Tolman and wife, and before they purchased a piece of land of Mary S. Jackson, (now Mrs. Sparhawk,) the witness made a plan for the corporation, in which the abovementioned conventional line was laid down as the dividing line between the Tolman and Jackson flats : That in 1836 or 1837, the city government caused a part of the Jackson flats to be filled up, from about two or three feet south of this conventional line : That the earth was brought in by the Rail Road Corporation, who were paid therefor by the city ; and he understood that the city charged the expense to Mrs. Spar-hawk : That he never knew that any question was made about this conventional line, until the suits were brought by Sparhawk and wife, in which the court decided that it was not the true line : That a house (called the Couch house) was built in 1824, below high water mark, and that its rear now stands on this conventional line : That there was no particular occupation of these flats, below the Couch house, until recently : That he did not know that said stakes were ever pulled up ; but that his attention was not particularly called to them : That in 1833, when the deed from Tolman and wife was made to the Rail Road Corporation, he believed there was nothing on the flats to designate the lines ; that he then saw no stakes ; and that all the flats lay open, from Orange Street round to Claflin’s lot on Pleasant Street, and including the demanded premises : That he never saw Mary Tolman, and did not know that she had any knowledge of the settlement of the line.</p> <p>The tenants then put in a deed from said Mary Tolman to said Mary -S. Sparhawk, dated June 1st 1841, releasing the land which, by the conventional line, would be a part of the Jackson estate, but which, by the true line, was a part of the Tolman estate: (This deed was introduced merely as evidence of the</p> <p>confirmation of the agreement of August 1822, as to the lines of division, and with an express understanding and declaration, that it should not be relied on by the tenants as an estoppel.) Also a deed, dated December 10th 1833, from Mary S. Jackson (now Mrs. Sparhawk) to the Boston and Worcester Rail Road Corporation ; and two deeds from Benjamin C. Jackson to Paschal P. Pope ; these three deeds being also introduced as further evidence of the confirmation, by the grantors, ol said agreement of August 1822.</p>

<p>K. and B.; owners of adjoining land, intending to establish the divisional line according to the true boundary, agreed, by parol, on a line that did not conform to such boundary, and afterwards held possession according to such conventional line : B. sold his land to C.; Before the sale, A. stated to C. that the land which he (A.) claimed was bounded by said conventional line between him and B.and that he did not claim beyond that line: After the sale to C., he made improvements on the land next to such conventional line, with the knowledge of A., who was often present and pointed out said line, without expressing any dissent to C.*s proceedings, or giving notice that he had any claim to said land: A. afterwards discovered that said conventional line was not the true dividing line, and that C. was in possession, as B. had been, of a piece of land which, according to the true line, belonged to him, (A.,) and he therefore brought a writ of entry against C. to recover the land between the true line and said conventional line. Held, that A. was not estopped to claim this laud of C., as he had acted under a mere mistake, without fraud or gross negligence.</p>

<p>K., being about to purchase land that was held in trust, made a contract with the trustee for the conveyance thereof, which contract in terms recognized the trust, and provided for its execution: K. subsequently required and received from the trustee and the cestui que trust a joint deed of the land, under circumstances which left it doubtful whether the purpose of such deed was to discharge the land from the trust; Afterwards, in an agreement between K. and the trustee for a resale of an undivided moiety of the land to the trustee, the terms of the first contract were recited, and were not declared to have been vacated : The cestui que trust after wards aided in the organization of a corporation, and in the passing of a vote au thorizing the purchase of said land by the corporation, without disclosing that he regarded the land as chargeable with a trust in his favor : The land was thereupon conveyed to the corporation, the sole members of which were the trustee, the cestui que trust, K. and his partners, who were affected with notice, and persons holding stock for the benefit of K. or his partners.</p> <p>Held, that the recital and agreement of resale revived the trust, if it had been waived by the joint deed of sale, and confirmed it, if it had not been thereby waived.</p> <p>Held also, that the trust was not waived, as to the corporation, by the conduct of the cestui que trust, but that the corporation took the land subject to the trust.</p>

<p>Where one tenant in common of a vessel, who has authority to insure for his eotentnt, effects insurance in his own name, for whom it may concern, and, after a loss, makes an adjustment with the underwriters, by receiving the amount of his own loss only, “in full of all losses on the policy$ ” though he may be liable to the cotenant, in an action on the case, for the full amount of his loss, yet the cotenant may waive his right thus to recover the full amount of his loss, may adopt the adjustment made with the underwriters, and recover of the other tenant in common, in an action for money had and received, his share of the money received by such tenant: Or he may set off his share of the money so received, in an action ex contractu brought against him by the other tenant in common.</p>

<p>The St. of 1843, c. 7, which enacts that “ all the duties, required by law to be per formed by the judge of the municipal court, shall be performed by the justices of the court of common pleas, or by some one of them,” is not repugnant to the con stitution of the Commonwealth.</p> <p>The office of judge of the municipal court was virtually abolished by the St. of 1843, c. 7, which transferred its duties to the court of common pleas.</p>

<p>The Rev. Sts. c. 90, did not make it the duty of an officer, who attaches real estate, to deposit in the clerk’s office the writ, or a copy thereof, with the return of the attachment. That duty was first imposed on such officer by St. 1838, c. 186.</p> <p>In an action against an officer, who had attached real estate before the passing of Si 1838, c. 186, for omitting to deposit in the clerk’s office a copy of the writ, &c., within three days, whereby the attachment was lost, the mere fact that he deposited such copy, &c. in the clerk’s office, on the sixth day after the attachment is not evidence that he promised the attaching creditor to do it within three days.</p> <p>After the revised statutes went into operation, and before the passing of St. 1838, c. 186, an officer was directed to “ attach specially,” without directions as to the property to be attached: He thereupon attached sufficient real estate 3 but the at tachment was lost, in consequence of an omission to deposit a copy of the writ, &c. in the clerk’s office, within three days. Held, that the officer had obeyed his directions, by attaching the real estate, and that he was not answerable to the creditor for the loss of the attachment, although there was sufficient personal property of the debtor, which might have been attached.</p> <p>An officer is liable to an action for neglecting to return an execution according to the precept thereof, although the judgment creditor suffers no injury by such neglect.</p>

<p>it was alleged in a declaration, that the plaintiff and R. were partners, and that tne defendant covenanted with them to furnish them with money to be used as capital in their partnership business; that the defendant did so furnish money, during a certain time, and afterwards, “ maliciously intending and contriving to injure and ruin the plaintiff, and confederating and conspiring with said R. to injure and ruin the plaintiff in his business, and to break up said partnership, &c., refused any longer to furnish capital, according to his covenant, and brought a suit against said partners to recover the money furnished to them by him, and recovered judgment against them, took out execution, and caused their stock in trade to be sold on said execution, at a great sacrifice, to pay the same5” and that said R., in pursuance of said confederacy, had refused to join with the plaintiff in a suit against the defendant, for a breach of said covenant. Held, that the plaintiff, in order to maintain his action, must prove not only that the defendant had broken his covenant, but that he did so with the intent, and pursuant to the confederacy, as set forth in the declaration.</p>

<p>A. made a negotiable note to B., payable on demand, under an agreement that it should be placed in the hands of C. to be by him delivered to B. or returned to A., on certain conditions : B. fraudulently obtained possession of the note, and negotiated it six months after its date, and the indorsee brought a suit thereon against A., v>ho thereupon filed a bill in equity, praying for an injunction and relief. Held, that the court had no jurisdiction in equity, and that A. had an adequate and complete remedy at law.</p> <p>When a bill in equity seeks special and general relief, and also a discovery, and relief is the principal object, and discovery is sought merely as incidental to the relief, if the plaintiff shows no' title to the relief sought, a demurrer lies to the whole bill.</p>

<p>Writ of error. The defendant was convicted, in the court of common pleas, in the county of Bristol, March term, 1842, of stealing from a dwellinghouse property of less value than $ 100, and was sentenced to two days’ solitary imprisonment, and confinement afterwards at hard labor, for the term of eighteen months, in the state prison, to commence from and after the expiration of a former sentence°of two days’ solitary imprisonment, and two years’ confinement at hard labor, awarded against him by the same court at the same term.</p> <p>The error assigned was, that the indictment, on which the judgment was founded, set out no offence above simple larceny, and that the judgment was therefore excessive and illegal.</p>

<p>Writ of error to reverse a judgment of the court of common pleas in the county of Middlesex, at the March term, 1838, sentencing the plaintiff in error to one day’s solitary imprisonment, and confinement afterwards at hard labor, for the term of five years, in the state prison. The first count in the indictment, on which the prisoner was found guilty, alleged that he, at Cambridge, on the 24th of February 1838, “the dwellinghouse of Joel Reed there situate, in the night-time did enter without breaking, no person lawfully therein being then and there put in fear, with intent the goods and chattels of him the said Reed, then and there being found, feloniously to steal, take and carry away, in the dwellinghouse aforesaid.” The second count alleged that the prisoner, on said 24th of February, at Cambridge “ a certain camblet cloak, of the value of $8, of the goods and chattels of Joel Reed, and one surtout coat, of the value of $12, of the goods and chattels of Elias Phinney, then and there in the dwellinghouse of said Reed being found, feloniously did steal, take and carry away, in the dwellinghouse aforesaid.” It was assigned for error, “that said judgment is excessive and illegal in the matter of the one day’s solitary imprisonment.”</p>

Writ of error to reverse a judgment of the court of common pleas in the county of Bristol, at the June term, 1841.

<p>The provision of the Rev. Sts. c. 142, § 8, for the apprehension of persons charged with the commission of offences in other States, is not repugnant to the constitution or laws of the United States.</p> <p>An averment, in an indictment for a riotous assault upon an officer in the lawful discharge of the duties of his office, that he was in the service of a legal precept, and had A. in his custody as a prisoner, to be examined on a charge of larceny, is supported by proof that the officer was in the service of a legal precept, and had A. in his custody as a prisoner, to be examined on a charge of larceny in another State, and of being a fugitive from justice.</p> <p>An officer who has a legal warrant to arrest A., who is charged with larceny in another State, and with being a fugitive from justice, does not abuse the process, nor forfeit his protection under such warrant, by holding at the same time a power of attorney from one who claims the custody of A. as a fugitive slave, and is proceeding to carry him before the proper tribunal, to obtain a certificate according to the law of the United States.</p> <p>On the trial of an indictment for a riotous assault upon an officer while serving i legal precept on A., who was charged with larceny in another State, and with being a fugitive from justice, the defendants cannot introduce evidence that B., who claimed the custody of A. as a fugitive slave, had declared, and that the officer knew B. had declared, that A. had not committed larceny, and that the charge was made merely for the purpose of getting A. into custody, so that he might the more easily be carried home.</p>

Writ of error to reverse a judgment of the court of common pleas in the county of Middlesex, at the February term, 1842, sentencing the plaintiff in error to the payment of a fine of $ 20 and costs.

<p>The provision in Rev. Sts. c. 143, § 51, for the punishment of prisoners who forcibly break prison, with intent to escape, or by force or violence attempt to escape therefrom, although no escape be effected, does not apply to prisoners who are held in custody for trial, or for not obtaining bail for their appearance, but only to convicts who are sentenced to a term of imprisonment as a punishment, and are confined in pursuance of the sentence.</p>

<p>Where a conditional sentence is awarded against a convict, under Rev. Sts. c. 139, by which he is ordered to pay a fine within a limited time, and in default of payment to be imprisoned, and he is committed to jail, to be detained until such sentence is complied with, he is imprisoned for a fixed term by way of punishment, within the true intent of Rev. Sts. c. 143, $ 51, and if he forcibly breaks jail, with intent to escape, or by force or violence attempts to escape therefrom, before the time limited for the payment of the fine has elapsed, he is liable to punishment for such breach or attempt.</p>

<p>When real estate is purchased by partners, with the partnership funds, for partnership use and convenience, although it is conveyed to them in such a manner as to make them tenants in common, yet in the absence of an express agreement, or of circumstances, showing an intent that such estate shall be held for their separate use, it will be considered and treated, in equity, as vesting in them, in their partnership capacity, clothed with an implied trust that they shall hold it, until the purposes, for which it was so purchased, shall be accomplished, and that it shall be applied, if necessary, to the payment of the partnership debts. Upon the dissolution of the partnership, by the death of one of the partners, the survivor has an equitable lien on such real estate for his indemnity against the debts of the firm, and for securing the balance that may be due to him from the deceased partner, on settlement of the partnership accounts between them } and the widow and heirs of such deceased partner have no beneficial interest in such real estate, nor in the rent received therefrom after his death, until the surviving partner is so indemnified.</p>

<p>This was an action of assumpsit on the money counts, brought by the widow and children of Abraham Howard, deceased, and was submitted to the court on the following agreed statement of facts :</p> <p>“ In the year 1826, Abraham Howard and Robert D. C. Merry partners in business, under the firm of Howard & Merry, purchased store No. 39, Central Wharf, Boston, with eight shares in the corporate stock of the Central Wharf and Wet Dock Corpo"ation ; which shares, by the charter of said corpo ration, (St. 1814, c. 172, § 4,) are ‘ in all respects real estate.’ In 1832, the said Howard & Merry, being then partners as aforesaid, purchased a parcel of land and a store in Moon Street, Boston. Bjath the deeds of conveyance were made to said Abraham Howard and Robert D. C. Merry, and their heirs and assigns for ever ; and the deed of the store on Central Wharf, with the shares aforesaid, described the grantees as ‘ merchants and copartners, doing business under the firm of Howard & Merry.’ The whole of said estates was purchased with the funds of said firm, and they were so entered on the books of the firm, at the time of the purchase, and continued to be entered in the accounts of stock, taken in writing by the firm, from time to time during the continuance of the partnership, as a part of the property of the firm. All the expenses incurred on account of said real estate were charged to said partnership, in their books ; and all the rents, storage, and dividends received from said stores and shares, were credited to said partnership, in their books.</p> <p>“ This property was purchased by Howard & Merry for their partnership purposes, and was used by them for their own goods, and also for taking the goods of others on storage ; and said partners occupied the counting room in said store on Central Wharf, from the time it was purchased until the partnership was dissolved by the death of Howard, in January 1840. Said firm were solvent, when such purchases were made, and so continued till 1837. After the decease of Howard, the surviving partner, Merry, filed a petition, on the 14th of April 1840, for the benefit of the insolvent act of 1838, c. 163, upon which such proceedings were had, that the defendants in this suit, J. L. Priest and Franklin Story, were appointed assignees of said Merry’s estate, and his individual estate and the partnership estate of Howard & Merry were transferred to them by a master in chancery. The defendants have received rents from said stores, and dividends from said shares, to the amount of $3000, and the plaintiffs claim one moiety thereof as belonging to them. On the 17th of February 1840, an administrator was appointed on the estate of said Howard ; but he had not sold the real estate belonging to said Howard, at the time when the abovementioned rents and profits accrued.</p> <p>“ A demand has been made, in due form, by said Mary Howard, to have her dower set off in the premises, and also by all the plaintiffs for the rents and profits claimed in this suit. The parties have agreed upon the value in money, A Mrs. Howard’s dower, if she is entitled to dower. And if the plaintiffs, or either of them, be entitled to recover any thing, in any form of action, or by any process in equity, against which the defendants have no claim for relief in equity, in this court, judgment is to be rendered for the plaintiffs, for that amount; the court stating how much belongs to the widow, and how much to the heirs : But if the court shall be of opinion that neither of the plaintiffs can recover any thing of the defendants, in any form of action or proceeding, at law or in equity, except where the defendants have a claim for relief in equity, in this court, judgment is to be rendered for the defendants.”</p>