Volume 47 — Massachusetts Reports

<p>An inhabitant of Boston indorsed a promissory note that was made payable at a bank in the city of .New York, and which the maker failed to pay at maturity: When the note fell due, the indorser was at Washington, attending to his duties, at a session of congress, as a senator from Massachusetts } and he had, at all times, an agent in Boston, who had charge of his business in his absence $ but the holder of the note had no notice that the indorser had such agent, nor did the indorser request that no tice should be sent to him at Boston: Notice of non-payment by the maker was seasonably put into the post office at New York, directed to the indorser at Washington, where letters, addressed by mail to members of the senate, during the session of congress, are taken from the post office, by officers of the senate charged with that duty, and delivered to the members in their places, when the senate is actually in session, and on other days are delivered, by those officers, at the members' lodgings. Heldf that the notice was sufficient to charge the indorser.</p>

The first of these actions was by the indorsee against the maker of a promissory note for $330, dated March 1st 1837, payable to Joseph Harris, Jr. in four months, and by him indorsed. The action was commenced October 4th 1839.

<p>Under the Rev. Sts. c. 33, §5, grace is to be allowed on post notes issued by a bank and made payable at a day certain,<{ with interest until due, and no interest after,” though the bank insert a memorandum on the margin of the note, that it is “ due ” on such day.</p> <p>No usage, nor any agreement, tacit or express, of the parties to a promissory note, aa to presentment, demand and notice, will accelerate the time of payment, and bind the maker to pay it at an earlier day than that which is fixed by the law that applies to the note.</p> <p>Where the indorser of a note is discharged by want of due demand on the maker, or of notice of the default of the maker, the legal presumption is, that he will avail himself of such discharge ; and the holder, therefore, is not bound to prosecute a fruitless suit against the indorser before he can maintain an action against his own agent for neglecting to make due demand on the maker, or to give due notice of his default,</p> <p>An agent is liable to his principal for injuries that are caused by want of reasonable skill and ordinary diligence in the exercise of his agency, but not for injuries that are caused by his mistake in a doubtful matter of law.</p> <p>The holder df a post note, which was issued by a bank that failed before the note fell due, sent it to another bank for collection, and this bank caused payment to be demanded, and notice of non-payment to be given to the indorsers, on the day the note was due, without grace, whereby the indorsers were discharged on the ground that by law the promisors were entitled to grace on the note, although they had, while solvent, paid such notes without grace : The holder thereupon brought an action against the collecting bank to recover damages for negligence in not making such demand and giving such notice as would hold the indorsers : It appeared, on the trial, that at the time when the note fell due, the question whether banks were entitled to grace on their post notes, had never been decided, and that there was no uniform practice, as to demanding payment of such notes and of giving notice to the indorsers, after the promisors failed. Held that the action could not be maintained.</p>

This was a bill in equity, praying the court to decree and pronounce that Ezra A. Bourne and Samuel Frothing-ham, who were trustees under a codicil to the last will of John Parker, deceased, might… Held: where, in the same will, two provisions, of a different nature and amount, are made for the benefit of the same person, that the one is a satisfaction of the other.

The plaintiffs (Henry Hubbard and his children) set forth, in a bill in equity, that John Hubbard, late of Boston, by his last will, which… Held: managed and improved, or paid over and distributed, as the case may be, by my said executors and trustees, the survivors or survivor of them, and the executors and administrators of such survivor, to and among my sons and daughters, respectively, and for their benefit as above provided, in the same manner, in all respects, that I…

Assumpsit on a promissory note for $2500, made by the defendant to the plaintiffs, dated October 19th 1838, and payable on demand, with interest from the 25th of June 1837.

<p>Though goods, which a purchaser obtains by fraudulent representations, may be reclaimed from him by the seller, if he seasonably rescind the sale, yet if the purchaser sells them, for a valuable consideration, to a third person who has no notice of the fraud, or consigns them to such person for sale, and he advances money thereon, before the first seller interposes, such second purchaser or consignee will hold the goods against the first seller.</p> <p>In an action of replevin, the general issue pleaded, with notice, pursuant to St. 1836, c. 273, of the matter intended to be given in evidence by the defendant, is equivalent to an avowry, or plea of property in another, at common law, with a suggestion foi a return $ and judgment for a return may be awarded, if the defendant prevails,</p> <p>r., a broker, in behalf of A., agreed with B., a commission merchant, to consign to him certain goods of A. for sale, of part of which goods a bill of lading had been received and was delivered to B. j and B. advanced a certain sum against said consignment, and agreed to sell the goods on commission: As the goods had not arrived, T., for himself, pledged to B. an accepted draft, as collateral security for the money advanced by him, to be held by B. until the goods should be received by him; and it was agreed that if the goods, on arrival, should not be satisfactory to B., T. should be at liberty to pay the sum advanced by B., and to take back the draft and goods, and that he would do so, on B.?s request. That part of the goods, which were described in said bill of lading, afterwards arrived and came into B.'s hands, and they were taken from B. on a writ of replevin sued out by H., who claimed them on the ground that they had been fraudulently obtained from him by A.: Afterwards, and before the action of replevin was tried, B. received the sum advanced by him out of the proceeds of the draft pledged by T., and from other sources; and on the trial of said action, B. prevailed. Held, that B. was entitled to judgment for a return of the goods.</p>

<p>The husband of a tenant in common of land joined his wife in an agreement with C., , the cotenant, that a building should be erected on the land, that C. should advance the money required for that purpose, and that the wife's portion of the land should be mortgaged to C. by her and her husband, to secure payment of the money to be advanced by him for the wife: C. advanced the money, and the building was erected: Before such mortgage could be executed, the wife died, leaving an infant son, her only heir, and the husband, his father, was appointed his guardian: C. filed a bill in equity against the guardian and the infant, praying the court to decree the sum, advanced as aforesaid, to be a lien on the infant's estate, that the same was a trust in the infant for C., and that the guardian might be authorized and required to mortgage the infant's portion of the land, to secure payment of the sum so advanced and expended. Held, that no lien on the infant's estate was created by the agreement under which C. advanced the money, because that agreement was not binding on the infant or his mother, by reason of her coverture. Held also, that if there was anv lien on the estate, it could not be enforced by a decree made against the infant during his minority. Held further, that the husband was not discharged from his personai liability on the agreement.</p>

<p>By an agreement between A. and B., A. was to supply B. with stock to be manufactured into cloth, at his mill, on A.'s account, and B. was to manufacture the stock into cloth, and to deliver the cloth to A., for a certain sum per yard : A. also engaged, that if B. should fulfil his said agreement to manufacture and deliver the cloth, A. woui.d pay him one third part of the net profits of the business. Held that this agreement did not make A. and B. partners, either between themselves, or as to third persons.</p>

<p>Where an officer sells attached goods on mesne process, pursuant to the Rev. Sts. o. 90, § 57, and after the suit on which they were attached is dismissed, the defendant in that suit brings an action against the officer to recover the proceeds of the goods, the officer may defend by showing that the goods were the property of a third person, who has recovered or demanded satisfaction of him for seizing them) but the burden of proof, to support such defence, is on the officer.</p> <p>A deputy sheriff, having attached goods, in a suit brought by F. against M., sold them on mesne process, pursuant to the Rev. Sts. c. 90, § 57, and held the proceeds: M. died, and his administratrix and F., and A., a creditor of F., executed an indenture, in which it was agreed that said deputy should pay, (and he was therein directed and requested to pay,) part of said proceeds to M.’s administratrix, and the residue to A., and that F.’s suit against M. should be dismissed: The deputy paid M.’s adminis-tratrix accordingly, and made part payment to A., and said suit was dismissed) but he neglected to pay A. in full: M.’s administratrix thereupon sued the sheriff for the deputy’s default in not paying over the balance of said proceeds. Held, that the’ sheriff was answerable to her for this default of the deputy.</p>

<p>By the Rev. Sts. c. 38, § 34, where a person holds stock in a manufacturing company, as trustee, and also holds other property on the same trust, such other property may be taken for the debts of such company, if the stockholders of the company are liable to pay its debts, or any part thereof.</p> <p>The certificate of the officers of a manufacturing company, prescribed by the Rev. Sts 38, § 17, stating the amount of the capital fixed and paid in, sworn to and recorded within thirty days, in the registry of deeds, is conclusive evidence, for the stockbold ers, of the facts therein stated, so far as to exempt them from personal liability for the subsequent debts of the company.</p> <p>Though a creditor, who has two or more demands against a manufacturing company, one only of which the stockholders are liable to pay, recovers a single judgment on all the demands, yet he may levy his execution on the personal property of a stockholder, to the amount of the demand which the stockholders are liable to pay.</p>

<p>Where money is lent on the credit of the borrower, though a third person, debtor of the borrower, signs a promissory note for the amount of the money, and the lender receives the note, yet if such note is not paid when due, he may maintain an action against the borrower for money lent.</p>

<p>Arbitrators have authority to decide conclusively all questions of law necessary to the decision of the matters submitted to them, unless they are restricted by the terms of the submission, or unless it appears on the face of their award, that they intended to decide according to law, but have decided contrary to law: And there is no distinction, in this respect, between the authority of arbitrators who are selected from the legal profession, and that of other arbitrators.</p> <p>The decision of arbitrators, to whom all questions of fact and law are submitted, and who act fairly, is conclusive, unless it can be impeached and avoided by proof of fraud prac-tised on them, or proof of mistake or accident, by which they were deceived and misled, no that their award is not in fact the result of their judgment: But their mistakes in drawing conclusions of fact from evidence or observation, or m adopting erroneous vales of law or theories, of philosophy, are not a legal cause for avoiding their award.</p> <p>Hence, where a question as to the measure of a water power, granted by demise, was submitted to arbitrators, and they, after making numerous actual experiments, constructed a table, on hydraulic principles, by which the use of the water was to be osculated3 it was held that evidence was not admissible to show that the table was constructed on erroneous principles.</p> <p>The -wners of the water powers at the Boston Mill Dam leased a certain number of mili powers, with an agreement that they would do nothing whereby the power graced might in any way be in anywise defeated or diminished: Disputes afterwards aros-' respecting the quantities of water to which the lessee was entitled, and as to the i*»ode of measuring and delivering the same, and the use thereof} whereupon the partienj submitted the matters in dispute to arbitrators, authorizing them (among other things; to determine what quantities of water the lessee was entitled to draw, by virtue of his lease, and also to determine the manner in which the same should be measured and delivered, and to settle, in all other particulars, the legal rights of the parties under and by virtue of the lease, and to employ such engineers, agents, &c. as they should see fit, for the purpose of enabling them to determine the extent of the water power, and other experimental matters incident to the business committed to them, and to determine what part of the expenses appertaining thereto should be borne by each party. Held, that the arbitrators had not exceeded their authority by awarding that the lessee should take the water at a lower level than that at which it was taken at the time when the lease was made 3 nor by awarding that the lessee should pay Half the expense of an apparatus which they ordered to be made and set up for measuring the water to be received by the lessee, and half the expense of the experiments made by the arbitrators to determine the whole number of mill powers which the lessors owned 3 nor by awarding that the water received by the lessee should be measured after it had passed his mills, and not before. Held also, that the arbitrators had not exceeded their authority by awarding that the lessors should remove accretions from the basin that received the water, whenever it should be necessary to the full enjoyment of the water powers granted to the lessee, although the lessors might not own the soil 5 the arbitrators being of opinion that the lessors had the right and were bound to enter upon the receiving basin, and remove therefrom obstructions arising from accretions. Held farther, that the arbitrators, by awarding that the lessee was entitled to the use and enjoyment of his mill powers “ so long as the basins will furnish the same,” had not, by implication, impaired his rights under the lease which gave him such powers absolutely, and without any limitation.</p>

<p>A. subscribed this instrument: " I guaranty the payment of all sums which B. may owe C. for goods which he may sell B., provided that the whole amount, which B. shall owe C. at any one time, shall not exceed $ 1100 ; it being the understanding that I am, in no event, to be liable for more than that sum: And if B. shall fail punctually to pay said C. any sum which may become due to him, I am to have 90 days, after demand in writing is made on me under this guaranty, to pay the ampunt for which he may be so in default: And this guaranty is vpon the condition that said C. shall, once in every eight months, from the date hereof, give me notice, in writing, of said B.’s account with him.” A. afterwards signed another instrument m these terms i “ Whereas C. has, at my request, consented to sell goods to B. on six months’ credit, I guaranty to him the payment of $ 900, in addition to my obligation to him of $1100; it being the understanding that I am, in no event, to be liable for more than $ 2000 in all; upon the same conditions as expressed in my former obligation.”</p> <p>Held, that the proviso in the first instrument, that the sum which B. should owe C. at any one time, should not exceed % 1100, was not a condition upon the breach of which A.’s obligation was defeated; but only a limitation of A.?s liability to C.; and that if it were such a condition, yet that it was waived by the second instrument.</p> <p>Held also, that in an action by C. against A. to recover the price of goods sold to B. on credit, after Ine making of said second instrument, it was not sufficient to aver in the declaration, (after making all other necessary allegations,) that more than 90 days before action brought, C. gave notice to A.11 of said B.’s indebtedness” in a certain sum, and then made a written demand on A. for payment of said sum $ that said last averment was not equivalent to an averment that, at the time of such notice to A., such sum was due and payable, or that B. was in default 5 and that the declaration was therefore bad, on general demurrer.</p>

<p>An administrator de bonis non may appeal from a decree of the judge of probate al lowing the administration accounts of the original executor or administrator.</p> <p>Where the estate of a testator was in the hands of his widow and executrix, from the time of the probate of the will until her decease, and she, while she remained sole, rendered several accounts of her administration, and, after her second marriage, she and ner husband, in her right, rendered other accounts, all of which were allowed, but it did not appear that any person, interested in the ultimate disposition of the prop erty, was present or was represented when they were allowed; it was held that thr judge of probate had authority to open all those accounts, and correct them, upon the coining in of the final account of the executrix, as made up by her last husband, afte. her decease, on objections being made thereto by the administrator de bonis non ot the testator, appointed after the death of the executrix.</p> <p>Where a testator devised to his wife, whom he appointed executrix, the use of his dwelling-house for life, and directed that it should be kept in repair out of his other estate, it was held that she might charge the estate, in her administration accounts, with the amount of premiums paid by her for insurance of the house against fire 5 but not for the taxes assessed on the house while in her possession under the will.</p> <p>Where an annuity is given by will, with a direction that it be paid quarter yearly, the first payment is to be made at the end of three months after the testator’s death.</p> <p>Where a testator, among other bequests to his wife, gave her an annuity of $800, “ during the full term of her life, to be paid to her quarter yearly,” and payments were accordingly made to her for several years, and she died three days before the expiratio'n of a quarter) it was held the annuity could not be apportioned, and that her representatives were not entitled to receive a pro rata payment.</p> <p>A testator devised the use of his dwelling-house to his wife for life, and afterwards leased the same for a term which did not expire during his life. Held, that if he received the rent in advance, for a time longer than he lived, he thereby revoked his devise pro tanto ; and that if the wife failed, for any reason, to receive the rent that accrued after his death, she had no claim on his estate for the amount of such rent.</p>

<p>Under the insolvent act, (St. 1838, c. 163,) if a surplus remains in the hands of the assignees, after payment of all debts proved as the statute requires, they are to pay interest on such debts, as follows: On all debts where interest is reserved by the contract, interest is to be paid according to the contract: On all debts where interest is not reserved by the contract, if the debts became due before the first publication of the warrant to the messenger, interest is to be paid from the time of s ich publication ; but if the debts became due after such publication, interest is to be paid from the maturity of the debt 5 and if the debts were payable on demand, then interest is to be paid from the time of the earliest demand shown 5 and if no special demand be shown, then interest is to be paid from the time of such first publication. And when an appeal is taken from an order of a master directing interest to be so paid, and that order is confirmed, the interest is to be paid up to the time of the final order of the appellate court.</p>

This was a bill in equity, brought by the plaintiffs, in behalf of themselves and the other creditors of Rogers, Devens & Co., against the assignees, under St. 1836, c. 238, of said Rogers, Devens &. Co., insolvent debtors.

The defendant was tried in the municipal court, at Decern ber term, 1842, on an indictment, which alleged that he, at Boston, “on the 1st of October 1842, did knowingly have in his possession a certain mould, pattern, die, puncheon, tool and instrument, adapted and designed for coining and making one side of a counterfeit coin in the similitude of one side or half part of a certain silver coin, called a half dollar, to wit, that side or half par' thereof which represents a…

<p>When a prisoner is indicted, convicted and sentenced in the court of common pleas for the county of Middlesex, at a term which is by law prescribed for the disposition of criminal business only, it is not necessary that it should be averred in the record that the term was held for the disposition of such business.</p> <p>Where the record of the court of common pleas for the county of Middlesex, at the first term thereof held in 1842 for the disposition of criminal business, showed that certain grand jurors were duly returned, empar.nelied and sworn, and that, at a subsequent term of said court, held in the same year, the grand jury returned an indictment on which a prisoner was tried, convicted and sentenced 3 it was held, that the record of the conviction need not set forth the empannelling and swearing of the grand jury, but that the court would judicially take notice of the statute (Rev. Sts. c. 136, § 1) which requires grand jurors, in the court of common pleas, to serve at the several successive terms of that court during the year.</p> <p>It is not necessary to insert in the record of each particular indictment and conviction the names of the grand jurors who found the indictment.</p> <p>The signature of the foreman of the grand jury to an indictment, certifying it to be a true bill, legally imports that it was found by twelve or more grand jurors.</p> <p>An indictment for manslaughter alleged that T., on the 25th of September, at Groton, in the county of Middlesex, 11 in and upon one L., then and there being, feloniously and wilfully did make an assault, and with a stone, which said T. then and there had and held, in and upon the head of said L., then and there feloniously and wilfully did cast and throw, and with the said stone, so as aforesaid cast and thrown, the aforesaid L. then and there feloniously and wilfully did strike, penetrate and wound, giving to the said L., by the casting and throwing of the stone aforesaid, in and upon the head of said L., a mortal wound,” &.c. Held, that it was sufficiently averred that T. gave L. a mortal wound, on the 25th, of September, at Groton.</p> <p>There is no positive rule of law which requires the names of the jurors, who find a de fendant guilty on an indictment, to be inserted in the record of each particular case.</p> <p>Where it appears by the record, that the issue was tried by a jury duly returned and sworn, the legal presumption is, that they were twelve good and lawful men.</p> <p>It is not a ground of error, that a defendant, who has pleaded in chief, was indicted and convicted by the name of J. T. otherwise called T. D. 5 misnomer being matter of abatement only.</p>

Writ of error. At the June term, 1842, of the court of common pleas in the county of Middlesex, the plaintiff in error . was found guilty by the jury, and was sentenced to one day’s solitary imprisonment, and to confinement afterwards, at hard labor, for the term of four years, in the state prison, on an indictment which contained the two following counts: 1.

<p>The 20th section of c. 126 of the Rev. Sts., prescribing the punishment of “ every person who shall buy, receive, or aid in the concealment of any stolen goods, knowing the same to have been stolen,” describes only one offence, which may be committed either by buying, receiving, or aiding in the concealment of such goods; and an in* dictment which charges a defendant with receiving, and aiding in the concealment of such goods, charges only one offence.</p> <p>When a defendant is convicted on an indictment which charges him with receiving and aiding in the concealment of stolen goods, he is convicted of only one offence, and if the indictment properly charges the defendant with aiding in the concealment of the goods, he may be legally sentenced, although the charge of receiving the goods is insufficiently made.</p>

W rit of error to reverse a judgment of the court of common pleas in the county of Middlesex, at the February term 1843, sentencing the plaintiff in error to solitary imprisonment and confinement at hard labor, in the house of correction.

<p>The Rev. Sts. c. 74, § 3, which forbid the bringing of an action to charge a party on his representation concerning the character, &c. of another person, unless such representation be made in writing, apply, like the repealed St. of 1834, c. 182, § 5, only to representations affecting the credit of another person.</p> <p>Where a nonsuit is taken off, and a new trial granted, the plaintiff may have leave to amend his declaration, though he did not move to amend before the nonsuit was entered.</p> <p>Where one, as the agent of others, commenced and prosecuted a suit in their names, and they afterwards ratified his acts, and became responsible to him for the costs, and he made no agreement with them respecting the avails of the suit, and had no interest therein, it was held, that he was a competent witness for the plaintiffs in the trial of the action.</p> <p>Where two or more are deceived and injured, in the purchase of real estate for partnership purposes, by the false and fraudulent affirmations of a third person, which are actionable, they may join in an action against him to recover damages for the deceit and injury.</p> <p>Where one is deceived in the purchase of property, by the false affirmations of a third person, and is thereby induced to pay more for the property than it is worth, the party by whom he was thus deceived cannot defend against an action brought by the purchaser to recover damages for the deceit, by showing that the plaintiff sold the property for the same sum which he paid for it.</p> <p>In an action by A. against B., the declaration alleged that B., intending to deceive and defraud A., falsely and fraudulently affirmed to A., who desired to purchase a tannery that he (B.) well knew such a tannery as A. wanted, which was worth % 4000 ; that the owner paid that sum for it, and would sell it for what it cost him 5 that he (B.) would aid A. in buying it for that surn 5 and that A., confiding in said affirmations, and not knowing the contrary, nor the value of the tannery, purchased the same of the owner, and paid him % 4000 therefor$ but that said tannery was not worth % 4000. and that the former owner paid only % 3000 for it, which was more than it was worth when A. so bought it of him; all which B. well knew, when he made said false and fraudulent affirmations 5 whereby A. was deceived and greatly injured: Held, after verdict, that this declaration set forth facts sufficient to maintain the action, and to let m proof of other facts, showing the fraudulent design of B. to injure A.</p>

<p>Where a person is offered as a witness to prove the testimony of a deceased witness on a former trial of the same cause, he cannot be permitted to testify, if he state that he can give only the substance of such testimony, but not the language of the witness. Hubbard, J. dissenting.</p> <p>By the Rev. Sts. c. 105, § 12, if a defendant makes a tender of amends for a casual and involuntary trespass, before action brought, and brings the money into court when he files his plea to the action, he does not lose the benefit of his tender, though he does not file his plea at the return term, unless the plaintiff has previously demanded the money, and it has been withheld.</p>

This was an appeal, under the Rev. Sts. c. 68, § 8, from a decision of the commissioners of insolvency, appointed to receive and examine the claims of creditors against the estate of the defendant’s intestate, Benjamin Mills, disallowing a claim against said estate, made by the plaintiff’s testator, William H. Sabine.

<p>An assignee, under the United States bankrupt act of 1841, may maintain a writ 01 error to reverse a judgment rendered against the bankrupt.</p> <p>The St. of 1840, c. 87, § 5, does not take away the right, given by Rev. Sts. c. 114, § 13, to a writ of error to reverse a judgment on an award 5 it merely gives a cumulative remedy by appeal.</p> <p>Where arbitrators, under the submission prescribed by the Rev. Sts. c. 114, do not set forth, in their award, their doings and the result thereof, but refer, in their award, to statements of their proceedings, which they have delivered to the parties, the award cannot legally be accepted and confirmed.</p> <p>And if such arbitrators, instead of awarding that one party shall recover any sum against the other, indorse a certain sum on a note held by one of the parties against the other, and direct that the note, thus reduced by the indorsement thereon, shall be held by the payee as their award 3 such award cannot be accepted and made the ground of a judgment.</p>

<p>In an action on a bond for the performance, by a third person, of an award to be maue on a submission under the Rev. Sts. c. 114, the obligor may defend by showing that the award is void, although the court, to which it was returned, accepted and confirmed it, and rendered a judgment thereon, which is not reversed.</p>

<p>Where the maker of a promissory note abandons his business and residence, and re* moves into another State, before the maturity of the note, the holder, if it be not proved that he received the note after the maker’s removal, is not bound, in order to charge the indorser, to demand payment of the maker in the State to which he has removed 3 but he is bound to demand payment at the maker’s last residence or place of business within the State where he made the note, if he can find it cy the use of due diligence.</p> <p>When there is no dispute as to the facts, the court is to determine what is due diligence in seeking for the last place of business or residence of the maker of a note.</p> <p>On the last day of grace, on a note that was dated at New York, where the maker re - sided when the note was made, a notary public took the note to the office of F., the third indorser, to inquire for the maker and other indorsers, and was told that F. was out, but that one H., whose office was near that of F., might give him information ; whereupon the notary went to H.’s office 5 but the person who had the charge thereof knew nothing of the maker or first two indorsers: The notary then protested the note, without making any further inquiry for the maker. Held, in a suit by the holder against the third indorser, that due diligence had not been used to find the maker’s last place of business or residence in New York, and that the indorser was 'discharged. v - *</p>

<p>Assumpsit by the payee against four makers of a joint and several promissory note. The case was submitted to the court on a statement of facts, as follows: “ In the spring of 1838, George H. Phelps and Matthew D. Field, copartners, negotiated a loan for $2500 with the plaintiff, and then gave him a note, signed by them and the two other defendants, for that sum, payable in one year, with interest. Phelps & Field, at that time, received from the plaintiff, as the consideration of said note, $ 1867-75, in cash, and the plaintiff’s note to them for $632-25. It was verbally agreed between the plaintiff and the said Phelps & Field, when said loan was made, that Phelps & Field should pay the plaintiff interest, at the rate of eight per cent, per annum, upon the said sum of $2500. At the expiration of the year, the promisors and the plaintiff met; interest on the said note of $ 2500 was computed at eight per cent.; and the amount thus ascertained, being $200, was paid by the said Phelps & Field to the plaintiff, and a new note was given for the sum of $2500, being the amount of the original loan. This payment was made in pursuance of said verbal agreement; and this last note is the subject of the present suit.</p> <p>“ The defendants have filed a specification of the grounds of their defence, one of which is usury.</p> <p>“Upon these facts such judgment is to be entered as the court shall direct.”</p> <p>In Butterfield v. Kidder, 8 Pick. 512, it was held, under St. 1783, c. 55, that a verbal agreement to pay usurious interest did not vitiate a note given for money lent; and this case was recognized in Dunscomb v. Bunker, 2 Met. 11. Under the same statute, it was also decided, that where usurious interest was not reserved when the loan was made, a note given for the money was not rendered void by a subsequent taking of usurious interest. Gardner v. Flagg, and Thompson v. Woodbridge, 8 Mass. 101, 256. And a new note, given for the original debt, was not tainted with usurious interest paid on the note first given, though such interest was paid in pursuance of an agreement made at the time of the loan. Chadbourn v. Watts, 10 Mass. 121. See also Little v. Rogers, 1 Met. 108. Barnes v. Hedley, 2 Taunt. 184. Pollard v. Scholy, Cro. Eliz. 20. Chit. Con. (5th Amer. ed.) 705.</p> <p>How then is the case at bar affected by the Rev. Sts. c. 35 ? By <§> 2, a contract for the payment of money with more than 6 per cent, interest is not rendered void; but “ in any action brought on such contract, the plaintiff shall forfeit threefold the amount of the whole interest reserved or taken.” The present suit is upon a contract (note) on which usurious interest has neither been reserved nor taken. No forfeiture has been incurred, and no deduction is to be made from the amount of the note</p> <p>Under St. 1783, c. 55, the note in suit would have been infected with usury, and void; usurious interest having béen “ taken,” if not “ reserved.” 1 Met. 399. Chit. Con. (5th Amer. ed.) 706, 709. Bridge v. Hubbard, 15 Mass. 96. Hammond v. Hopping, 13 Wend. 509, & seq. Roberts v. Trenayne, Cro. Jac. 507. Glisson v. Newton, 1 Hayw. 336. Warren v. Crabtree, 1 Greenl. 167. Tuthill v. Davis, 20 Johns. 285. Preston v. Jackson, 2 Stark. R. 237. Ord on Usury, 84 — 86. And the same construction should be given to the words “ reserved, taken or received,” in Rev. Sts. c. 35, § 2. The rule, that no guise or shift shall enable a man to take more than the legal interest on a loan, (2 Doug. 740; 3 Met. 211, 2 Pet. 537; 7 Barn. & Cres. 458;) is as applicable to'the Rev. Sts. as to St. 1783.</p>

<p>An assignment of a debtor’s property, under the insolvent act, [SI. 1838, c. 163,) does not dissolve an attachment thereof, which was made before the passing of the act.</p>

<p>Where A. signs a note with B., as his surety, and B. afterwards executes a mortgage to the payee for securing payment of the note, and A. becomes insolvent, the payee cannot prove his whole debt against A. under St. 1838, c. 163, but must deduct the value of the mortgage, and be admitted as a creditor for the residue of the debt, in the manner prescribed, by § 3 of that statute, for creditors who have a mortgage or pledge of the property of" the debtor.,;</p>

Assumpsit by the indorsees against the indorsers of a prom» issory note, signed by Phelps & Field, dated February 12th 1840, and payable to the defendants, or their order, in 60 days, at the Phoenix Bank in New York.

<p>S. subscribed a paper, with others, promising to pay $ 100 for erecting and endowing <tc academy, “ each subscriber to be interested therein in proportion to the amount by him subscribed,” and engaging to pay the same to such person or persons as might be appointed, by a majority in interest, to receive it, and agreeing that when such majority should deem it proper, they might call a meeting of the subscribers, who might choose officers and committees, give them instructions, and pass votes concerning the building, location and endowment of the academy: S. afterwards joined others, who had subscribed the paper, in a petition to the legislature, stating that sufficient funds had been raised for building and endowing an academy, and praying to be incorporated as an academy 5 which petition was granted, and an act of incorporation passed: There were then no other funds besides the sums thus subscribed: Afterwards, and after the subscription was filled, a meeting of the subscribers was called, and was twice adjourned : At the first meeting, A., B. and C. were chosen a building committee, and were instructed to u submit their views and doings in relation to procuring the most eligible location” for the building, and the terms on which a site could be ob tained: At the first adjourned meeting, said committee were authorized forthwith to make such contracts as might be necessary for procuring materials for the erection of a building, and a site for the same was agreed upon, and A., B. and C. were appointed and authorized to collect of the several subscribers the sums subscribed by them; At the second adjourned meeting, an unsuccessful attempt was made to change the site before agreed upon: Said committee proceeded to make a contract for building, purchased the site agreed upon, and took a conveyance thereof3 and the building was erected: S. attended all said meetings, and voted as one of the associate subscribers : At the first adjourned meeting, S. declared, in presence of said committee, that “ if the location agreed on should be persisted in,” he would not pay his subscription 3 and afterwards, and after said committee had purchased said site, and made the contract aforesaid, S. gave them written notice, that u if the course which had been commenced should be pursued,” he should not feel bound nor disposed to pay his subscription. Held, that S. was legally bound to pay the sum subscribed by him, and that A., B. and C. might maintain an action against him to recover the same.</p> <p>It is no defence to an action brought to recover money subscribed for the building and endowment of an academy, that the committee, appointed by the subscribers to purchase land for the site thereof, have taken a deed which does not convey a fee, or which is on a condition that is burdensome to the grantees.</p>

<p>Where part of the consideration of a deed, which conveys real estate, is the grantee s oral promise to support the grantor during life, and to give back to him a lease of the granted premises for life, and the grantee afterwards refuses to execute such lease, the grantor cannot maintain an action against the grantee to recover damages for such refusal; such action being within the statute of frauds —Rev. Sts. c. 74, § 1.</p>

<p>A devise of all one's “estate,” after payment of debts and legacies, passes a fee, a.though the devisee is appointed executor, and the debts and legacies are not charged on him personally.</p>

Assumpsit by the indorsee of a promissory note for $190, made by John R. Case to the defendant, and by him indorsed, dated April 29th 1840, and payable in 12 months. At the trial in the court of common pleas, the making and indorsement of the note, the presentment to the maker at maturity, and notice of non-payment, were admitted. The defendant offered the testimony of said Case, the maker of the note, contained in a deposition.

<p>By St. 1841, c. 105, the actual cost, and not the estimated expense, of making and altering highways, is to be divided between towns and the county, by the county commissioners, as they shall decide to be just and reasonable. Therefore, where a board of county commissioners located a highway, estimated the expense of making it, directed a town to make it, and ordered that one half of the estimated expense should be paid out of the county treasury 3 and after the highway was made and accepted, the actual expense was found to be less than the estimated expense, and another board of commissioners directed that one half of the actual expense should be paid by the county, and drew an order therefor in favor of the town 3 it was held that this proceeding was legal and equitable 5 and a petition of the town for a mandamus, requiring the commissioners to draw an order for one half of the estimated expense, was dismissed</p>

Trespass upon the case against the selectmen of Dalton. The declaration contained two counts, for the same cause of action, the first of which was wholly insufficient to support a judgment. At the trial in the court of common pleas, a gen eral verdict was returned for the plaintiff; but that court, on motion of the defendants, ordered the judgment to be arrested, on the ground that the second count, as well as the first, was fatally defective.

Writ of entry. The demandant claimed- title to the demanded premises under a deed of warranty from Stephen Stevens, her father, who was also father of the tenant.

<p>A town meeting cannot be legally held, unless it be in pursuance of a warrant under the hands of the selectmen, or of a majority of them.</p> <p>Where a town, at a meeting held in pursuance of a warrant signed by one selectman only, “by order of the selectmen,” voted to raise and assess a certain sum of money to pay the expenses of the town, it was held that the vote was unauthorized, and that payment of a tax, assessed under the vote, could not legally be enforced.</p>

<p>It is a good aefence to a bill in equity, praying for a specific performance of an agree ment to convey land, that the defendant was led into a mistake, without any gross laches of his own, by an uncertainty or obscurity in the descriptive part of the agreement, so that the agreement applied to a different subject from that which he understood at the time 5 or that the bargain was hard, unequal or oppressive, and would operate in a manner different from that which'was in the contemplation of the parties when it was executed: But in such case, the burden of proof is on the defendant to show such mistake on his part, or some misrepresentation on the part of the plaintiff.</p> <p>Where a party agrees, for a certain consideration, to permit a rail road corporation to construct a road over his land, on any one of two or more routes, at their option, and to convey the land to the corporation, for certain sums, according to the route that shall be taken, after the road shall be definitively located, he cannot defend against a bill for specific performance of his agreement, by showing-that he was induced to believe, either by his own notions or by the representations of third persons as to the preference of one route over another, that the corporation would select a route dif ferent from that which they finally adopted; nor by showing that the corporation or its agents made representations as to the probability that one route would be adopted in preference to another, or as to the relative advantages of each route.</p> <p>Where a party agrees under seal to permit a rail road corporation to construct a road over his land, and also agrees to convey his land to the corporation for a certain sum, after the road shall be definitively located, with a condition in the deed of conveyance that the deed shall be void when the road shall cease or be discontinued $ specific performance of such agreement may be decreed, after the road is constructed over the land, although the corporation did not expressly bind itself to take or to pay for the land: And where, in such case, the corporation takes the land, constructs a road over it, and is, for three or four years, in actual possession and use of all the privileges which the performance of the party’s agreement would give, and then files a bill against him for specific performance of his agreement, the bill will not be dismissed on the ground of unreasonable delay in filing it.</p> <p>Where an agreement by deed is made with a corporation, and is delivered to an agent of the corporation, who was duly authorized to negotiate it, it is delivered to the corporation. and his acceptance thereof is the acceptance of the corporation.</p> <p>In order to prevent a decree for specific performance of a contract, on the ground of inadequacy of consideration, the inadequacy must be so gross, and the proof of it so clear, as to lead to a reasonable conclusion of fraud or mistake.</p> <p>Where a party who has agreed to convey land, for a certain sum, to a rail road corporation, for the site of a road, refuses to perform his agreement, and obtains an assessment, according to law, of his damages caused by the laying out of the road over his land, the measure of the damages to which he is liable for breach of his agreement, is the excess of the sum assessed at law over the sum for which he agreed to con vey the land.</p>

<p>A demandant in a writ of entry, who claimed title under a will, proved the following facts: That two persons signed a certificate on the will, that they heard the executor therein named give notice to the testator's heirs and legatees, that he should offer the will for probate on a certain day 5 that a certificate of the probate of the will, dated on the same day, was written on the will, or annexed thereto, and was recorded as if signed by the judge of probate, though his signature was not in fact affixed, that the executor gave an administration bond to the judge of probate, which was placed and kept on the files of the probate court 5 that the judge of probate issued a warrant for the appraisement of the testator's property, and that an inventory thereof was returned and sworn to before said judge, by the executor. Held, that these facts were properly received in evidence to prove, and furnished proof from which it might be inferred, that the will was duly proved., although neither the records nor files of the probate court showed any order of notice to the parties interested in the will, that the same was offered for probate.</p> <p>Where one of two tenants in common of land conveyed the whole estate to A. by a deed with warranty, and A. entered, claiming title to the whole, and, on being requested by the cotenant to give up a moiety thereof, refused so to do, and declared that he would stand a lawsuit before he would give it up ; it was held that there was an ouster of the fcotenant, which entitled him to maintain a writ of entry against A.</p>

<p>Where the plaintiff, in an action of slander, counts generally, alleging that the defendant has charged him with a certain offence, the court has authority to order him to file a specification or bill of particulars of the ground of his action.</p> <p>Where a count alleges that the defendant charged the plaintiff with the crime of fornication, a specification, stating that the defendant declared that the plaintiff was a strumpet, is allowable, as it includes the charge of fornication 3 and proof of the charge in the specification is proof of the charge m the declaration.</p> <p>S bill of particulars was filed by a plaintiff in an action of slander, m which the declaration contained three counts, alleging that the defendant, on three differer days, charged the plaintiff with a certain offence: The defendant gave notice trat he should hold the plaintiff to rely, as the substantive ground of action, upon the three first conversations of the defendant which might be proved, and which might impute to the plaintiff the offeree alleged in the counts to have been charged upon the plaintiff : The first witness : ailed by the plaintiff stated a conversation with the defendant in which he imputed to the plaintiff such offence: The plaintiff's counsel imme diately stated that they did not rely upon that conversation to prove either oí the counts, but that they relied upon a subsequent conversation of the defendant, in the hearing of the witness. Held, that the plaintiff might waive the testimony which t.ie witness had given, and was entitled to his testimony as to a subsequent conversation of the defendant.</p> <p>A. specification or bill of particulars, in an action of slander in which the plaintiif files only the general counts, is not to be treated, in all respects, like a special declaration 5 and slight variances between the proof and the allegations in the specification will not defeat the action. The action is maintained, if actionable words, which necessarily import the charge alleged in the specification, are proved, though other words, therein alleged, are not proved.</p> <p>Where a witness testifies, in ah action of slander, that the defendant charged the plaintiff with a certain offence, the defendant cannot be permitted to prove by the witness, that he (the witness) had before told the defendant that the plaintiff was guilty of that offence.</p>

Assumpsit by the indorsees against the acceptors of a bill of exchange. The plaintiffs were described, in their declaration as “ The British American Land Company, of London, in the kingdom of Great Britain.” The action was commenced in the court of common pleas in the county of Hampden, at the February term, 1841. At the following June term, the defendants pleaded the general issue, which was joined.

<p>Evidence of a general usage, not of any particular place, trade, class of dealers, or course of dealing, cannot be received for the purpose of controlling a rule of law.</p> <p>Where A. received of B. $275, “ to buy flour,” and took of C. a receipt for $300, u towards 100 barrels of flour, at $4 per barrel,” without any delivery of the flour, actual or constructive, and there was no proof that such inchoate purchase from C. was intended, at the time, as a purchase on account of B., and B. never received any flour purchased by A. 3 it was held that B. might recover back from A. the $275, in an action for money had and received.</p>

This was an action to recover the value of sundry goods. . Trial in the court of common pleas, before Warren, J., whose report of the case was as follows : It appeared in evidence, that before the 1st of April 1841, the goods mentioned in the plaintiff’s declaration were the property of the defendant, who, on that day, sold them to Daniel M. Chapin and Noah Wolcott, 2d; and that the defendant, at the same time, executed a lease to said Wolcott and Chapin, of a brick store,…

<p>Under the Rev. Sts. c. 62, § 21, which declare that any child, &e. of a testator, for whom he has omitted to provide in his will, shall take a share of his estate, as if he had died intestate, “ unless it shall appear that such omission was intentional, and not by any mistake or accident/’ it is not necessary that it should appear by the will itself that such omission was intentional, but it may be shown by parol evidence.</p>

<p>In an action of trespass quare clausum fregit, the defendant pleaded the general issue, and filed a notice that he claimed and should give evidence of title to the locus in quo: The jury found the defendant guilty, assessed damages, and also found that the defendant had no title to the land described in the plaintiff's declaration 5 and judgment was rendered for the plaintiff. Heldf that this judgment was not conclusive proof of the plaintiff’s right of property in said land, nor of Ha title to maintain a writ of entry to recover the land from the defendant in tl at action.</p> <p>Where several persons, without privity of estate, successively enter on land as dis-seizors, 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.</p> <p>Where a disseizee, whose right of entry, but not his right of action, is barred by the statute of limitations, makes an entry upon the land, and retains possession, he does not thereby forfeit his right of action \ and, therefore, if he is sued in a writ of entry, by the disseizor whom he has ousted, he may, to prevent circuity of action, set up his ancient title, in defence, by way of estoppel or rebutter. And though the disseizee, in such case, was originally owner of only part of the land, as one of several tenants in common, and received a conveyance of his cotenants' shares thereof, while they and he were disseized, yet he may maintain his defence to the possession of the whole.</p>

<p>A deed conveying land, executed by a person when non compos mentis, is voidable only, and not void, and may therefore be ratified by him when he is of sane mind. And this doctrine applies aB well to unrecorded deeds as to feoffments and to deeds recorded.</p>

<p>Under Sé. 1840, c. 87, a defendant, in an action of trespass quare clausum fregiti where the damages demanded exceed $6*00 in the county of Suffolk, or $300 in other counties, may have the action removed into the supreme judicial court for trial: By that statute, such action is to be regarded as a personal action, and the court of common pleas have jurisdiction thereof, to the same extent that they have of other personal actions.</p>

<p>A town passed a vote to refund to its selectmen the expense they might incur in de-fence of s suit brought against them for a violation of their official duty respecting elections, uid directed its treasurer to pay money to the counsel employed by the selectmen to defend such suit: A minority of the voters thereupon filed a bill in equity, praying that the officers of the town might be restrained, by injunction, from carrying such vote and direction into effect. Held, that the equity jurisdiction of the court did not extend to this case.</p>

This was a writ of entry, sued out on the 27th of July 1840, to recover possession of a tract of land in Colerain. The demandant counted on a mortgage deed of the demanded premises, made to him by Thomas Whitmore, dated July 3d, 1840, to secure payment of a debt which was due to the demandant from said Whitmore before May 19th 1840.

<p>Where a mill owner, who has a grant of a right to flow certain lands, suffers his mill and dam to go to decay, and ceases to flow the land, and a highway is then made across the land, he cannot, by afterwards granting his mill privilege and right to flow, authorize his grantee to overflow such highway by means of a new mill dam on the site of the old one 5 and his grantee, if he so overflow the highway, is punishable for a nuisance.</p>

Writ of dower. The demandant had judgment for her dower, at the last May term in Hampden, and the parties thereupon made the following agreement: “ In this case it is agreed, that E. Bates, A. Collins, and P. Boies, Esqrs., shall be appointed commissioners, to set out the demandant’s dower in the land demanded, and also to assess damages for the detention thereof; and if either party request it, to report a statement of facts to be submitted to the court for adjudication.”…

<p>Where a party enters on woodland, claiming title, and cuts wood, and does other acts thereon, as owner, and no other person enters into possession, or disputes his title, he thereby becomes seized of the land, as against every one but the true owner, though his acts do not constitute a disseizin of such owner; and if he conveys the land by deed, his possessory title passes to his grantee, and the covenant of warranty, in such deed, runs with the land, and he is answerable thereon to his grantee's as-signee, who is ousted by the true owner.</p>

<p>After a parish had accepted a parol gift of a tract of land for the site of a meetinghouse, and had erected such house thereon, and sold the pews, in the usual manner, to individuals, and done other acts indicating that the control of the house was in the parish at large, the heirs at law of the donor of the land conveyed the same to the deacons of the church connected with the parish, upon the trust and condition that they, and their successors in office, should permit the proprietors of the pews in the meeting-house then erected, or that might thereafter be erected, on said land, forever to occupy, hold, use and enjoy said land, and the meeting-house then thereon, or that might be thereafter built thereon, for the purpose of maintaining public worship in said iiouse, and for all religious and parochial uses and occasions, and for all usual purposes, or purposes deemed proper by the proprietors of said pews. Held, that this conveyance did not confer on the proprietors of pews the right of electing the minister who should officiate in the meeting-house, but that such right was left in the parish at large.</p> <p>The provisions of the Rev. Sts. c. 20, §§ 26-28, as well as the provisions of § 17, apply to a parish that has once been legally organized, but which, for the want of officers, or any other cause, is unable to assemble in the usual manner. Therefore, where a meeting of such parish, whose assessors had not been sworn, was called and conducted in the manner prescribed by §§ 26-28, and a parish committee was chosen at such meeting, it was held that they were the legal committee, and that another committee, afterwards chosen at a meeting called according to the provisions of § 17, had no legal authority.</p>

<p>A fraudulently sold and conveyed B.?s land to C., under a power of attorney from B., C. knowing the fraud: B. died without knowledge of the sale, and C. afterwards conveyed the land to A., who sold and conveyed it to purchasers, who paid him therefor, they having no knowledge of the original fraud. Held, that B.?s heirs could not maintain an action ^or money had and received against A., to recover the proceeds of the land.</p>

<p>The deposition of a witness, who was out of the commonwealth, was taken under a commission from the court, to be used by a plaintiff in an action on a promissory note, and the interrogatory put by the plaintiff to the witness was, whether he signed his name as an attesting witness to the note in suit, and the answer of the witness was, that he had no recollection of seeing the note executed, or of signing his name thereto, as attesting witness, although he might so have done. Helds that bv a reasonable implication, it must be understood from the answer, that the attestation to the note was in the hand writing of the witness} but that if this was left doubtful on the answer, the plaintiff might introduce other evidence of the hand writing both of the attesting'witness to the note and of the promisor.</p> <p>Where a witness attests the signature of one maker of a promissory note, and another maker afterwards signs it, it seems that it is not an attested note, as to the latter, within the provision of the statute of limitations — St. 1786, c. 52, § 5.</p>

Assumpsit to recover back the amount of a tax assumed to be assessed on the plaintiff, in the year 1840, by the assessors of the town of Hardwick, and by him paid on compulsion.

<p>A conveyed land to B., who entered into possession, and afterwards reconveyed the land to A.; but neither of the deeds of conveyance was ever recorded: A. afterwards conveyed the land to C., who had no knowledge that B. ever owned it. Held, that as against C., B. had not such a seizin of the land as entitled his widow to maintain a writ of dower against C.</p>

<p>Writ of entry to recover two parcels of land in Millbury, Trial before Dewey, J.</p> <p>The demandant having proved the execution of a deed, dated October 14th 1839, whereby the tenant quitclaimed to him the demanded premises, the tenant gave in evidence a bond, made to him by the demandant, of even date with that of said deed, the condition of which bond was as follows :</p> <p>“ Whereas the said Randall is indebted to the said Waters, and is desirous of securing him; and whereas the said Waters is indorser for the said Randall on the following notes of hand; ” [all specially described;] “ and whereas the said Randall also wishes to secure the said Waters for any existing and all future indorsements or liabilities, which he may make for the accommodation of the said Randall, and for any moneys which he may lend him — a record of which indorsements and liabilities shall be regularly made and annexed to this instrument— and in order to secure the said Waters, as aforesaid, the said Ran dall has this day conveyed by deed of quitclaim the following real estate,” [describing the several parcels, as described in said deed, and stating the value of each parcel, as estimated by said Randall; the whole value, as thus estimated, being $ 8900:] “ Now, therefore, if the said Waters shall well and truly recon* vey to the said Randall said real estate, when said liabilities, or any portion of said liabilities, equal to the estimated value aforesaid of any one parcel of said real estate, are cancelled and discharged by said Randall, and shall permit the said Randall to use and occupy said estate, and receive the rents and profits accruing from the same, so long as he saves him harmless from said liabilities, (but when he is obliged to meet and discharge said liabilities, in behalf of said Randall, said Waters may take immediate possession of such portion of the above real estate, according to said estimated value, as is equal to the debt and liability so cancelled by him;) then this obligation shall be void ; otherwise remain in full force and virtue. It is understood that the estimate of the value of the above parcels of land is made with the present incumbrances upon them.”</p> <p>The tenant thereupon contended that the demandant’s title to the demanded premises was that of a mortgagee, and that the supreme judicial court had no jurisdiction of the case.</p> <p>The demandant then offered to prove that he had paid for the tenant a larger sum than the value of the lands demanded in this suit, towards the debts mentioned in the condition of the bon._; and he therefore insisted that he had become the owner, absolutely, of the demanded premises. The judge refused to receive the proof thus offered, and ordered the action to be dismissed, with leave to the demandant to move to have it restored and a new trial had.</p> <p>It is undoubtedly true, that an absolute deed, with a simultaneous bond, conditioned merely to reconvey, on the performance of certain terms, is a mortgage. Erskine v. Townsend, 2 Mass. 493. But this is not such a case. Besides the stipulation to reconvey, there is also a stipulation, in the condition of the bond, that the demandant may take possession of such portion of the land as is equal in value to the amount of the debt paid by him for the tenant. And as this value is fixed by the agreement of the parties, the tenant loses nothing by way of penalty. A power, given to a mortgagee to sell the mortgaged land, is valid. Eaton v. Whiting, 3 Pick. 484. Kinsley v. Ames, 2 Met. 29. A fortiori, is the agreement valid in the present case, which is that of a conditional sale to the demandant, and not a mortgage. In Trull v. Skinner, 17 Pick. 213, it was held that where a bond of de-feasance was cancelled by agreement of parties, the mortgaged estate became absolute in the mortgagee.</p> <p>The deed and bond constitute a mortgage, and this court therefore has no jurisdiction of the present suit. St. 1840, c. 87, <§> 1. Ingalls v. Richardson, 3 Met. 340. An equity of redemption cannot be severed from a mortgage, even by the express agreement of the parties. 2 Story on Eq. § 1019. But the parties, in this case, have not agreed that the demandant should hold the land irredeemable on his being obliged to pay money for the tenant. The agreement is, that the de-mandant, in such case, may take possession of the land; but he has not agreed to take the land in discharge of his claims. He may still sue the tenant on those claims. See Kelleran v. Brown, 4 Mass. 444.</p>

<p>Before the passing of St 1793, c. 34, a citizen who dwelt and had his home in an unincorporated place, when it was incorporated into a district or town, gained a legal settlement in the district or town, by force of the act of incorporation $ that statute having merely affirmed, in this particular, a preexisting rule of law.</p> <p>Where parts of different towns, together with unincorporated territory, are incorporated into a district, a citizen dwelling and having his home in such unincorporated territory, gains a legal settlement in such district, by force of the act of incorporation, in the same manner as if such district had been wholly composed of territory previously unincorporated.</p>

<p>Where a writ of error is brought to reverse a judgment recovered on a note against an infant, who appeared by attorney, a promise, made by him after he comes of age, to pay the note, is neither a release nor a waiver of the error, nor a bar to a writ of error.</p> <p>As there is no general issue for the trial of questions of fact upon a writ of error, it seems that the court, since special pleading is abolished, may direct how an issue may be framed, and may allow the defendant in error to plead that the judgment, which is sought to be reversed, is not erroneous in any matter of fact, and tender an issue to the country, and may require him to file, with such plea, a specification, setting forth a release of errors, an estoppel, or any matter of fact in avoidance, on which he reties to show that the judgment ought not to be reversed.</p>

<p>Where an indorsed note, left in a bank for collection, is not paid by the maker at maturity, the cashier of the bank, not knowing the place of the indorser’s residence, oes not use due diligence to ascertain it, by merely inquiring therefor of a person naving temporary charge of the post office in the town where the bank is established; and therefore if due notice of non-payment is not given to the indorser, he is discharged.</p>

<p>A sued B., and summoned C. as trustee of B.: A., B. and C. afterwards made a tripartite agreement, in which it was stipulated that the respective demands of B. and C. should be submitted to referees, who should determine the amount due from C. to B. ; that C. should not make his disclosure in the trustee process, until after the referees should make their award; and that if the referees should determine that C. was indebted to B., C. should disclose, or become charged, as trustee of B., to the amount which the referees should determine to be due from him to B.; and that C. should be discharged from said process, if the referees should determine that he was not indebted to B.: The referees determined that C. was indebted to B. in a certain sum; but C. neglected to make his disclosure in the trustee process, until after B/s estate had been assigned under the insolvent law of 1838; and, on his subsequently making his disclosure, he was discharged, because the assignment of B.?s estate had dissolved the attachment, made of B.’s debt, by said process: A. afterwards sued C. for breach of the aforesaid agreement, in not making a seasonable disclosure in said process, and recovered judgment against him for the amount which the referees determined to be due from him to B. 5 and C. satisfied that judgment: The assignee of C., appointed under the insolvent law, afterwards brought an action against C. to recover the aforesaid amount. Held, that the action could not be maintained; B. himself having no right of action against C., when his estate was assigned.</p>

<p>Where an application for calling a meeting of a school district contains, in precise and enumerated articles, the objects of the meeting, and such application is annexed to the warrant for calling the meeting, and the person, to whom the warrant is addressed, is therein directed to warn the inhabitants of the district to meet for the purpose of acting on the articles named in such annexed application, those articles are a part of the warrant, as effectually as if they were embodied in it.</p> <p>A. school district, at a meeting legally held, voted to build a school house, chose a building committee, and instructed said committee to make a written contract with M. to build the house for a certain sum, pursuant to M.?s proposal: The meeting was then adjourned: At another meeting, called and held before the dav to which the former meeting was adjourned, the district voted to build a school house on a plan then first proposed by D. 3 to purchase a site therefor, according to a proposal then first made 3 to raise and appropriate a certain sum for building the house and purchasing the site thereof 5 and chose a building committee to oversee the erection of the house, to enter into a contract with D. for the building thereof, according to the plan proposed by D., and to take a deed of the site. Held, that the votes passed at the second meeting were legal and binding, and that they, by necessary implication, rescinded the votes passed at the former meeting.</p> <p>Where a school district accepted the proposals of a builder, to erect a school house, for a certain sum, with liberty to build a public hall over the same, as the builder's property, he allowing the district to have the use of the hall, free of charge, for meetings of the district, and for examination of the schools, &c. 5 and the house was so built 3 it was held that the district had not exceeded its authority, and that a tax was legally assessed to pay for the house.</p> <p>Where a town chooses three assessors, two of whom are sworn, and the third does not refuse to accept the trust, but omits to take the oath of office, and when called upon by the other two, declines to act, and the town does not choose another in his stead, the other two have authority to assess taxes.</p> <p>A tax assessed upon the inhabitants of a school district is not rendered void by the omission of the assessors, through misinformation, mistake of fact, or error of judgment, to assign the real estate of one or more non-resident owners to any school district.</p>

<p>A. mortgaged goods to B., but remained in possession, and sold them to C., agreeing to give C. a bill of sale thereof, signed by B.: C. gave A. a note for the goods, payable to him or bearer, on demand, which note A. delivered to B., two days after its date j whereupon B. signed a bill of the goods, as sold to C., and allowed A. the amount thereof, in account: A., pretending that he had possession of the note, applied to C. for payment thereof, and C., not knowing that it had been delivered to B., sent the amount thereof to A. in three different sums, on different days. Held, in a suit on the note, brought by B. against C., that B. could not recover; the case being within the St. of 1839, c. 121, § 1, that “ in any action, brought upon a promissory note payable on demand, by an indorsee against the promisor, any matter shall be deemed a legal defence, which would be a legal defence to a suit on the same note, ir brought by the promisee.”</p>

<p>A judge of probate, after receiving and hearing a petition of a creditor for a warrant against an insolvent debtor, pursuant to St. 3838, c. 163, § 19, refused to issue sucn warrant, because " it did not satisfactorily appear that there was, nor that there was not, one hundred dollars due” from the debtor to the petitioner. Held, that this was an adjudication that it did not appear to the satisfaction of the judge that such sum was due from the alleged debtor to the petitioner.</p> <p>The St. of 1838, c. 163, does not require that a judge of probate should make a record of his proceedings on a petition for a warrant against a debtor, where the petition is not sustianed. His duty is performed by filing the petition.</p>

<p>It seems that an allegation, that L. falsely and deceitfully represented himself to the inhabitants of the town of W., that he was an agent of the town of D., duly authorized to make an agreement with the town of W. for the repair of a bridge which divided the two towns, is not supported by proof that L., as one of the selectmen of D., met the selectmen of W. and joined with them in an agreement with a third person to repair such bridge.</p> <p>in an action by the town of W. against L., the declaration alleged that L. falsely and deceitfully represented to the plaintiffs that he was the agent of the town of D., and duly authorized to agree with the plaintiffs to repair a bridge across a stream which divided the said towns of W. and D., at the joint expense of said towns j and that the plaintiffs, relying on such representation, together with L., jointly employed S., as their agent, to repair said bridge, and agreed that they would jointly and equally pay him the expense of repairing it 5 that S. repaired the bridge, and demanded payment therefor of the plaintiffs, who paid him, and afterwards demanded of said town of D. to repay them one half of the sum thus paid to S., which said town refused to do, alleging that L. was never authorized to act as their agent in causing the bridge to be repaired: The declaration further averred, that L. was not in fact authorized by the town of D., as he represented himself to be 5 that the plaintiffs had been deceived and injured by his false and deceitful representation, and that he was answerable to them for the injury so caused: The evidence to support this declaration was, that L. and two of the selectmen of W. contracted with S. to'-repair the bridge, at the joint and equal expense of the two towns, and that this (if any) was the only act by which L. assumed an authority to bind the town of D. Held, that if this was a representation, that he had authority to bind said town, it was a representation made to S.; and not to the town of W.</p> <p>Where a turnpike road is laid out over a town road, which crosses a stream, over which there is a bridge, and the town afterwards discontinues a part of the town road on each side of the stream, such town is not afterwards liable to repair the bridge, in consequence of voting to maintain the turnpike road, if the turnpike corporation will give up its road through the town 5 though such corporation afterwards votes to abandon and surrender its right and interest in its road, and immediately thereupon removes the toll gates from such road 5 and though such town afterwards once ex pends money in repairing the same road.</p>

<p>B., after adding a small piece of woodland to a farm which he had long owned and lived upon, made a mortgage of his farm to S., in these terms: “ My home farm, containing 70 acres more or less,” but so described by metes and bounds, as to exclude said woodland: He afterwards made a conveyance of his lands, and all his personal property, to assignees, in trust, viz. that they should reduce the property to money, and therewith pay his creditors in full, if the proceeds of said property should be sufficient, and, if not sufficient, to pay them ratably, in proportion to the amount of their several claims: In this conveyance to assignees, the only description of his lands, which could include the woodland, was this : “ The farm whereon I live, containing about 70 acres, which estate is now under a mortgage to S.” Held, that the woodland passed to the assignees.</p>

<p>An administrator, who has in his hands a distributive share of his intestate's estate, which belongs to an insolvent debtor, cannot withhold it from the debtor’s assignee, for the purpose of paying himself, by way of set-off, a debt due to him m his own right, from such debtor.</p> <p>If a person, to whom an insolvent debtor is heir, dies before the first publication of the notice of the issuing of the warrant, under St. 1838, c. 163, to take possession of such debtor’s estate, though after his petition for the benefit of the statute, the distributive share of the debtor in the deceased’s estate passes to the debtor’s assignee, who is bound to claim it for the use of creditors: And it is no excuse for the assignee’s neglect to claim and receive such share, that he may be obliged to give bond to refund the whole or part thereof to the deceased’s administrator, on certain contin gencies.</p> <p>It is the right and the duty of the assignee of an insolvent debtor, under St. 1838, t. 163, to possess himself of the choses in action of the debtor’s wife, for the benefit of his creditors, although the debtor has never reduced them to possession: But while the assignee is proceeding to reduce such choses in action to possession, or after he has obtained payment thereof, and before distribution is made of the debtor's estate, the wife may apply to the court, by bill or petition, for a suitable provision to be made for her, out of the proceeds of such choses in action, and the court will make such provision according to the circumstances of the case.</p>

<p>An axecution against the inhabitants of a school district may be levied on the property of an individual member of the district 5 and may be so levied, in the first instance, even if there be corporate property of the district, which can be taken and applied towards satisfaction of such execution.</p> <p>D. recovered judgment, by default, against a school district, in an action on a contract with the district to build a school house, and levied his execution on the goods of G., a member of the district: G. sued D., in an action of trespass, for so levying on his goods: Held, that G. could not give evidence that D. had not performed his said contract, and therefore ought not to have recovered judgment against tne district.</p>

<p>An administrator is bound to answer, on oath, as to all facts tending to show that he was indebted to the intestate 3 even as to facts that take the intestate’s claim out of tne operation of the statute of limitations, though it is apparently barred by that statute.</p> <p>Where, after such laches of the holder of a guarantied note as deprived him of any legal claims on the guaranty, the guarantor, on demand of the holder, paid him the interest due on the notes, knowing and protesting that he was not liable on his guaranty 5 it was held that he had waived the holder’s laches, and continued to be liable to him on the guaranty. Held also, that the holder’s threat to sue the guarantor for other large debts which he owed the holder, unless he would pay such interest, did not avoid the effect of that payment.</p> <p>The holder of a guarantied note does not discharge the guarantor by taking collateral security of the maker, without giving him time.</p> <p>A note given by a guarantor, in payment of the interest due on the guarantied note, takes the debt out of the operation of the statute of limitations.</p>

<p>An indictment on Rev. Sts. c. 125, § 13, which alleges that the defendant assaulted and robbed A., and, being armed with a dangerous weapon, did strike and wound him, is not proved, as to the wounding, by evidence that the defendant made a slight scratch on A.’s face, by rupturing the cuticle only, without separating the whole skin 5 nor as to the striking, by evidence that the defendant put his arms about A.'s neck, and threw him on the ground, and held him jammed down to the ground.</p>