Volume 48 — Massachusetts Reports

<p>The Proprietors of the Locks & Canals on Merrimack River are not bound by then charter (Si. 1792, c. 13, $5) to make and maintain any bridge over the Merrimack Canal, which was made for manufacturing purposes, by the Merrimack Manufacturing Company, before said proprietors purchased the real estate, &c. of said company, under the authority conferred by St. 1824, c. 47.</p>

Assumpsit for use and occupation. Writ dated November 18 th 1842.

This was an action on the Rev. Sts. c. 104, § 4, to recover from the defendant possession of premises belonging to the plaintiffs, of which the defendant was tenant at will. The plaintiffs gave the defendant due notice to quit, and then commenced this action, which was entered in the police court of Lowell, on the 14th of December 1841, and was thence continued to the 31st rf said December, when the defendant pleaded, and judgment was rendered against him.

Assumpsit by the payee against the maker of a promissory note for $200, dated March 29th 1833, payable on demand with interest. On the note was this indorsement: “ January 4th 1837. Received the interest and ninety one dollars of the principal of the within.” The defendant pleaded the general issue, and relied on the defence of usury, which was duly speci fied in writing.

Assumpsit for money had and received. Writ dated November 5th 1841. The specification of the plaintiff’s claim was, for $240 paid to the defendant on the 25th of November 1833, and the same sum on each of the following days, viz. November 7th 1834, November 24th 1835, and December 2d 1836; $25, February 12th 1838; $50, April 9th 1838; $ 100, July 30th 1838; and $75, October 29th 1838.

This was an action of assumpsit for money had and received, brought by the administrator de bonis non, with the will annexed, of John Green, against the administrator of the estate of Lois Green, widow of said John.

Writ of Dower. At the trial before Wilde, J., the intermarriage of the demandant and Moses Parker, his subsequent seizin of the premises in which dower was demanded, his death in 1814, and a demand of dower, made on the tenant, in June 1841, were proved or admitted. When said demand was made on the tenant, he admitted to the demandant, that she was entitled to dower in the premises, but said he could not set it out then, and advised her to bring her action.

Assumpsit on a promissory note for $75, given by the defendant, dated May 7th 1836, payable to William Smith, or order, on demand and interest, and indorsed by said Smith to the plaintiff, in 1838. The case was submitted to the court on the following statement of facts: “ The only consideration for said note was the tuition of the defendant, as a student at law in said Smith’s office, from March 1834 to September 1835.

This was an action of trespass upon the case, commenced on the 1st of April 1842, in which the plaintiffs alleged that they were owners of a close situate on the highway leading from Littleton Common to Groton meeting-house, and adjoining southerly on the land owned by the trustees of Groton Academy; and that they had a right of way from the north side of said close, over the academy lot, to the highway in front of the same, and that the defendant, on the 21st of October…

Trover for a quantity of lumber. The plaintiff sued as administrator of the estate of William Conolly, who died in May 1842.

<p>The oath which is required by St. 1840, c. 87, § 1, in order to give original jurisdiction of certain civil actions to the supreme judicial court, that the matter sought to be recovered exceeds in amount or value the sum of $300, need not be subscribed by the party making it.</p> <p>A certificate was written on the back of a writ in these words: 11 This certifies that the demand within set forth exceeds the sum of $300, and that I expect to recover more than that sum 5” but it was not subscribed. A justice of the peace certified thereunder, that the plaintiff (naming him) u made oath to the certificate above by him subscribed.” Held, that the plaintiff's oath was sufficiently certified.</p>

Assumpsit on the money counts, a count for goods sold and delivered, and a count on an account stated. At the trial, in the court of common pleas, the plaintiff gave evidence that the goods, the price of which was sought to be recovered in this action, were delivered to the defendant upon a special agreement, by which they were to be sold by him for the plaintiffs, and were not to become the property of the defendant.

<p>The first count in the plaintiff’s declaration was indebitatus assumpsit for labor and services; and the second count alleged that the defendants, by their agent, John A. Deforest, contracted with the plaintiff to superintend the carding department in their factory, for the term of five years from the 6th of May 1839, or so long as said Deforest should continue such agent, at two dollars per day, to be paid quarterly, and that the plaintiff, in pursuance of said contract, performed said service till the 12th of February 1840, when said Deforest (he then continuing to be such-agent,.and so remaining till the commencement of this action) discharged the plaintiff from said service, and compelled him to seek other employment. Trial in the court of common pleas.</p> <p>The judge, before whom the trial was had, signed the following bill of exceptions: “ The defendants contended that the contract set forth in the second count was void by the statute of frauds, as it was proved to have been oral. But the judge, although inclining to that opinion, for the purpose of obtaining a verdict as to the damages, instructed the jury that they might consider the contract valid, and not within the statute; and that, if they should find for the plaintiff on both counts, they should assess the damages on each separately. The jury found for the plaintiff on both counts. On the first, they assessed damages at $24-88 ; and on the second, at $475. The plaintiff contended that the verdict should be put into form, so as to be a general verdict for the plaintiff, for the amount of the two sums thus found; leaving it to the defendants to except to the misdirection in point of law, if they should choose so to consider it. But the judge ordered the jury to reverse their verdict as to the second count, and to return, as to that, for the defendants ; which was done accordingly. And to this order the plaintiff excepts.”</p>

The defendant was indicted for uttering and publishing, as true, to Marshall Jones and John Jones, a certain forged promissory note, with intent to defraud them, knowing the same to be forged and counterfeit. The note was described, in the indictment, as of the following purport and effect: “ Wayland, March 15th 1842. For value received, I promise to pay Seth Adams or order forty four dollars and fifty cents, in thirty days from date, with interest.

<p>When the warrant for a town meeting, and the return thereon, are inserted in the town records, with the proceedings of the town at the meeting, those records are evidence of the holding of the meeting, and the original warrant need not be produced.</p> <p>When a warrant for a town meeting, to be held on Monday, directs the officer to warn the inhabitants by posting up a copy of the warrant eight days, and at least over two Sundays, before the time of holding the meeting, the return of the officer, that he posted up a copy of the warrant eight days before the time of holding the meeting, is sufficient 3 as the return shows that the copy must have been also posted over two Sundays.</p> <p>When a warrant for a meeting of the inhabitants of the town of A. is directed, for service, to F., constable of the town, his return of proper service is sufficient, if it be signed " F., constable,” without adding u of A.”</p> <p>Upon an indictment on Rev. Sts. c. 4, § 8, for giving false answers to the selectmen who presided at a meeting for the election of officers, or for wilfully voting at such meet ing, without being qualified, it is not necessary to prove that the selectmen were legally chosen and qualified; it Is sufficient, if it be proved that they were acting as selectmen.</p> <p>It is no cause for arresting judgment on an indictment for giving false answers to selectmen, and for voting wilfully, without being qualified, for governor, lieutenant gov ernor, and senators for the district of M., that it is not alleged that the district of M. is in the Commonwealth.</p> <p>An allegation, in an indictment for illegal voting, &c., that a meeting of the inhabitants of the town of A. was duly holden, is proved by evidence that a meeting of the inhabitants of A., who were qualified to vote, was duly holden.</p> <p>An indictment on the Rev. Sts. c. 4, $ 8, for wilfully giving false answers to selectmen presiding at an election, alleged that such false answers were given by the defendant with the fraudulent intent to procure his name to be placed on the list of voters, and to obtain permission to vote. The evidence was, that the defendant's name was on the list of voters, when he gave the false answers. Held, that the allegation of the intent to procure his name to be placed on the list of voters could not be rejected as surplusage, and that there was a material variance between the allegation and the proof.</p>

<p>Assumpsit for money had and received. At the trial in the court of common pleas, before Warren, J., the plaintiff offered, in evidence the following receipt: “ October 18th 1842. I hold two hundred dollars, to be paid to John M’Nulty, when he completes his papers to Morris Coughlin.</p> <p>John A. Knowles.”</p> <p>Evidence was then introduced tending to show that in the early part of October 1842, the plaintiff and said M’Nulty went to the office of the defendant, and stated to him that M’Nulty had agreed to sell certain real estate to the plaintiff; that the deed to be given was not to come from M’Nulty, and that they had agreed that the defendant should examine the records in the registry of deeds; that M’Nulty should procure such conveyance of said real estate as the defendant should pronounce sufficient ; and that any conveyance, which the defendant should pronounce sufficient, should be received as such by the parties: That the defendant afterwards examined said records, and found that the title to a portion of said real estate was in Francis M’Nulty, and the title to the remainder in Patrick M’Caffrey ; that the plaintiff and said John M’Nulty, on the 18th of October 1842, again met at the defendant’s office, when the sum of $ 200 was paid to the defendant by the plaintiff, with instructions to pay the same to said John M’Nulty when such conveyances of said estate should be completed as the defendant should deem sufficient; and that the defendant then gave the aforesaid receipt to the plaintiff, and a similar one to said John M’Nulty: That the defendant, before the 5th of November 1842, prepared a deed, with the usual covenants of warranty, from said John M’Nulty and Francis M’Nulty to the plaintiff, of a portion of said real estate, and another deed, of the remainder of said estate, with like covenants, from said Patrick M’Caffrey to the plaintiff; which deeds were duly executed by said grantors: That the defendant deemed said deeds sufficient to convey to the plaintiff a good title to said estate ; and that he gave notice to the plaintiff that said conveyances were completed, and were deemed by him to be sufficient: That on the 5th of November 1842, said John M’Nulty tendered the two deeds aforesaid to the plaintiff, who refused to receive them; that the plaintiff then said his wife was not satisfied, and that he should not take the land at any rate; that he did not doubt that the deeds were well enough; and that said M’Nulty might keep the money, if he pleased : That the plaintiff, on the 8th of November 1842, informed the defendant that he should not carry his bargain with M’Nulty into effect, and that he should get his money, if he could, or lose it, if he must.</p> <p>No other demand upon the defendant, before the commencement of this action, was shown.</p> <p>The plaintiff then introduced evidence tending to show that said Francis M’Nulty was an alien.</p> <p>The judge instructed the jury, that “in the absence of any express agreement upon the subject, the plaintiff was not bound to complete the contract, until John M’Nulty furnished him with a perfect title to the estate in question; and that if said M’Nulty had refused or neglected to furnish such title, the plaintiff would have been entitled to recover back the money deposited with the defendant; that if Francis M’Nulty was an alien, when he executed the deed aforesaid, he could not convey to the plaintiff a good title; but that the jury should return a verdict for the defendant, if they were satisfied, 1st, that it was agreed between the plaintiff and John M’Nulty, that the $200 should be paid to said M’Nulty when such instruments of conveyance were completed, as the defendant should deem sufficient to give a good title to the plaintiff, and were further satisfied that such instruments were completed, and notice thereof was given to the plaintiff, and that such instruments were tendered to him before he gave notice to the defendant that he should not carry his bargain into effect: Or, 2d, if they were satisfied that the deeds were tendered to the plaintiff, and that when they were so tendered, he did not make any objection to the title which said deeds would convey, but did say that the deeds were well enough, and that said M’Nulty might keep the money, if he pleased: Or, 3d, if they were satisfied that when the plaintiff gave notice, as aforesaid, to the defendant, ne did not make any objection to the title conveyed by the deeds which had been tendered to him.” The jury were instructed to consider each of these questions, and if they should find for the defendant, to state upon which ground they so found.</p> <p>A verdict was returned for the defendant, and upon an inquiry the jury stated that they found for the defendant upon all the grounds above stated. The plaintiff alleged exceptions to the foregoing instructions.</p>

<p>This was a writ of audita querela, in which the plaintiff complained, that a judgment was recovered against him, by the defendant, in this court, for $ 954-06, debt and costs; that the whole cause of action, and the benefits of the judgment to be recovered upon it, had been assigned, for a valuable consideration, to Jefferson Bancroft, before the rendition of the judgment; that before the execution issued, or before any service was made upon it, the sum of $ 500 was paid, in part satisfaction and discharge of the said judgment; that afterwards the execution was levied upon property of the plaintiff,, to the amount, after deducting expenses, of about $776; that, including the $500 before paid, this sum fully satisfied the execution, and a considerable sum over; and that the defendant, not admitting the payment of $500, took out an alias, pluries, and second pluries execution for the balance apparently due on the execution, and caused the plaintiff to be arrested and imprisoned thereon. This writ was sued out to obtain relief. Trial before Shaw, C. J., who made the following report thereof:</p> <p>It was conceded that a suit was commenced by said Parker against said Kimball, in February 1836, and that an attachment of all Kimball’s real estate was made thereon; that the suit was prosecuted to final judgment, and execution obtained thereon at the April term of this court in 1839; and that the execution was placed in the hands of an officer for service, within thirty days of the rendition of the judgment; that Parker assigned all his interest in said suit, whilst the same was pending, and in the judgment which might be recovered thereon, to Jefferson Bancroft, for a valuable consideration; that on the 29th of March 1836, Kimball, by a deed with covenants of general warranty and against incumbrances, conveyed to John Nesmith, in consideration of $3400, a lot of land on Merrimack Street, in Lowell, and that said Nesmith, on taking said deed, received from Seth Ames, who had a mortgage on said land, a written obligation, covenanting to indemnify Nesmith against the aforesaid attachment at the suit of Parker; that in August or September 1836, said Kimball made sale of another lot of land in said Merrimack Street, to Thomas Nesmith, by a deed with covenants like those in his said deed to John Nesmith; that the aforesaid judgment and execution were for $ 862 damages, and '$92-06 costs; and that on the execution aforesaid, the same being placed in the hands of J. Butterfield, deputy sheriff, all the right in equity which said Kimball had, at the date of the attachment, in another lot of land in Lowell, was sold, in pursuance of law, to said Bancroft, at a price sufficient to produce the whole amount of the execution, except the sum of $178,06, said lot of land having been sold by said Kimball to Thomas Wentworth, in August 1836, with general warranty ; that after said sale, the execution was several times renewed for the balance aforesaid, and a fourth execution issued in October 1841, on which said Kimball was arrested, February 1st 1842, and committed to jail.</p> <p>Jefferson Bancroft, called by the plaintiff, testified, that soon after judgment was recovered in the suit of Barker against Kim-ball, which had been assigned to him, an arrangement was made between Parker, the nominal plaintiff, Seth Ames, who had agreed to indemnify John Nesmith against the attachment in the suit, Thomas Nesmith, and the witness, by which, in consideration of $ 500 paid by said Ames and Thomas Nesmith, it was agreed that the execution should not be levied on the estates which had been conveyed to the two Nesmiths: That the witness did not know in what proportions they paid, but thought it was one half each: That Parker was present, and wished the arrangement made; and that this was after judgment recovered, but before execution issued: That the first execution was delivered by the witness to Butterfield for service; and that an equity of redemption was levied upon, and upwards of $700 received upon it: That the witness did not direct Kim-ball to be arrested, and that the arrest was against his wishes: That he informed the officer, who held the execution, that the judgment was his, that he did not wish Kimball arrested, and that if the officer collected any money upon it, he must account with the witness for it: That the officer told the witness that Samuel Wood claimed to have the right to direct the service of the execution.</p> <p>On cross examination, this witness said, “ Parker was indebted to me, at the time of the assignment, and I gave him a writing undertaking to account to him for the proceeds of the judgment, if any should be realized from it. I did not pay any money for the assignment, at the time. I think I brought a suit against Parker, and trusteed Kimball, and then Parker agreed to assign the debt to me; and he did. I do not consider that Wood has any claim on me to account for the proceeds. I consider that Parker owes me enough to absorb the whole of it. When the $500 was paid, I did understand that Ames and Nesmith were not to call on Kimball for indemnity. I cannot speak confidently of both, but I do recollect that Ames said he did not expect to enforce the claim against Kimball; that he had already more claims against him than he ever expected to get. He said we might do what we pleased with the money; it was of no consequence to him to apply it so as to raise a claim against Kimball on his warranty. They both said that the amount paid by them need not be applied on the execution; that all they wanted was, that the land should be discharged from the attachment, and were willing that the whole of the execution should be levied on other property of Kimball, if they could find it. I proposed to Ames and Nesmith to take an assignment of the judgment, and pay the face of it; but they preferred paying what they did, for a release of the attachment; and Parker wished the arrangement so made. It was talked over at the time, whether we had a right to take the $500 of Ames and Nesmith, without applying it on the execution, and Ames said he thought we were not bound so to apply it. That was one motive with Parker to make the arrangement, because he thought he could obtain more on the execution. No receipt was given for the $ 500, but I gave an agreement not to levy on those two lots of land, and this was signed both by Parker and myself. The equity, which was afterwards sold on the execution, I bid off at $ 800. There were some expenses and fees to be deducted, and the sum of $ 776 was applied in satisfaction of the execution. I think I bid it off at $ 800, at Parker’s request.”</p> <p>It was conceded that the orders to the oificer, to arrest the plaintiff on execution, were given by Parker, the defendant, professing to act for Samuel Wood, to whom he had assigned the surplus of the judgment, if any, after satisfying Bancroft.</p> <p>The parties agreed to take the foregoing evidence as a statement of facts, the court to draw all just inferences from it, and to render such judgment, on nonsuit or default, as the case should require.</p>

<p>A rail road corporation was authorized by a statute passed on the 17th of March 1841, (St. 1841, c. 108,) to extend its road across H. Street, which was a section of the Middlesex Turnpike : The same statute subjected the corporation to all the duties, liabilities, and provisions contained in the Rev. Sts. c. 39, and other statutes relating to rail road corporations, and also required that said extended rail road should cross H. Street under a bridge: By a statute passed on the 13th of March 1841, (Si. 1841, c. 78,) the Middlesex Turnpike Corporation was dissolved, and the surrender of its charter accepted, to take effect on and after the 1st of June 1841: In September 1842, the county commissioners laid out and established H. Street as a public highway, and ordered the towns of C. and S., in which that part thereof, over which the rail road had been extended, was situate, to erect a bridge over the track of the rail road across H. Street. Held, that the rail road corporation was bound by St. 1841, c. 108, and Rev. Sts. c. 39, to ereqt and maintain said bridge, and that the towns of C. and S. were entitled to a writ of mandamus requiring the corporation so to do.</p>

<p>Petition for a writ of certiorari to bring up the record of the county commissioners concerning the allowance of damages to Mary Harris and another, owners of Harris’s Wharf. The following facts appeared at the hearing:</p> <p>The petitioners were incorporated by an act passed on the 9th of April' 1836, (St. 1836, c. 187,) with authority to locate and construct a rail road on a line therein described; and by the third section of said act, it was provided that if the location of said road should not be filed according to law, (that is, within one year,) or if said road should not be completed on or before the 1st of January 1838, said act of incorporation should be void. By an act passed on the 27th of March 1837, (St. 1837, c. 94,) the time limited in the former act, for the filing of the location of said road, was extended, so as to authorize the petitioners to file the same on or before the 1st of January 1839, and the time for the completion of said road was extended to the 1st of January 1840. By St. 1839, c. 126, the time for completing said road was extended to January 1st 1841.</p> <p>The petitioners filed with the county commissioners the last location of said road over and across Harris’s Wharf, on the 20th of December 1838, and began the making of the road over said wharf in May 1840. Mary Harris and others, owners of said wharf, made a written application to said commissioners to estimate the damages caused by the taking of said wharf for said road; which application was filed on the 29th of March 1842. At the hearing of said application, the following agreement was read to the commissioners by the applicants’ counsel:</p> <p>“ Memorandum of agreement made this 26th day of February 1840, by and between the Charlestown Branch Rail Road Company and Richard D. Harris, acting for himself and owners of Harris’s Wharf.</p> <p>“ 1st. In consideration of the agreement herein contained and to be kept and performed by the owners of said wharf, the said corporation promises and engages to extend its rail road across the dock between Gray’s and said Harris’s Wharf, and sixty feet over and on said Harris’s Wharf estate, from the southwesterly line thereof, in the present direction of said rail road, to be located twenty five feet wide, on or before the 1st day of June next.</p> <p>“ 2d. And in consideration of the above, the owners of said Harris’s Wharf do hereby agree not to demand against said corporation any damage or compensation on account of its extending, locating, making and maintaining its road as above described, and hereby release all such damages and demands, ex ■ cepting however the claims that may be made by the occupants of said wharf for the expense of removing merchandize or other materials for or on account of said rail road company.</p> <p>“ 3d. It is further understood and agreed, by and between the parties to this agreement, that the owners of said Harris’s Wharf do not consent to have said Charlestown Branch Rail Road extended, located, made and maintained, on and over their said estate, more than sixty feet from the southwesterly line thereof, as aforesaid; on the contrary, that they the said owners do object to any further extension of said rail road, on account of the injury which they allege said estate would suffer from such extension, and that said owners will claim all reasonable compensation for damage, that may be occasioned thereby.</p> <p>“ 4th. It is also understood and agreed, by the parties aforesaid, that said owners of Harris’s Wharf reserve to themselves the right to pass over and across said sixty feet of rail road, and all other rights not hereinbefore surrendered.</p> <p>“ Charlestown Branch Rail Road Company, by Charles Thompson, President.</p> <p>“ Richard D. Harris, for self and owners of Harris’s Wharf.”</p> <p>The said applicants’ counsel, at the same time, read to said commissioners a letter from the proprietors of said wharf to the agent of the said rail road company, dated May 13th 1840, forbidding the company to extend their rail road across said wharf beyond the point mentioned in the foregoing agreement, and giving notice that they should claim full damages for all the injury which they might sustain from any act of the said company or its agents: Also a letter from said proprietors to the president of said company, dated June 26th 1841,. stating that the rail road was extended, about a year before, across said wharf, whereby the estate was much injured, and that said proprietors at that time made known to the agent of the company that they should demand remuneration for the land taken and the injury sustained; wherefore they requested to know whether the president and directors “ had fixed upon the amount to which they considered said proprietors entitled, or what course they purposed taking in relation to this claim.” The answer of said president to this last letter, was also read to said commissioners. It was dated June 29th 1841, and informed said proprietors that the directors of the rail road corporation had not taken any action upon the subject matter of said proprietors’ last letter.</p> <p>The counsel for the rail road company moved the county commissioners to dismiss the application of the proprietors oi said wharf for damages, because more than three years had elapsed, when said application was made, after the filing of the location of the rail road over said wharf, and the taking of said wharf and land by said company. The commissioners ovei ruled this motion, and on the 1st Tuesday of September 1842 awarded damages to the said Mary Harris and another, pursuant to their application.</p>

Hale, insolvent debtors, whose estate had been assigned to the appellant, Nathaniel Stevens, under St. 1838, c. 163. On the trial of this appeal, at the last April term of this court, the jury found a verdict for the appellee, for the sum of $1396. The appellant thereupon moved for costs, claiming to be “ the party prevailing,” under the last clause of the 4th section of said statute.

Trespass upon the case for a libel alleged to have been published by the defendant, in a newspaper, imputing to the plaintiff ‘ heartless cruelty towards his child.’ The defendant pleaded the general issue, (which was joined,) and filed the following specification of defence: “ If the plaintiff shall prove that the defendant ever printed or published the matter set forth in the plaintiff’s declaration, alleged to be libellous, the defendant will offer to prove, in…

Trespass upon the case, for diverting water from the plaintiff’s mills. The declaration contained three counts.

This was an action of debt, commenced in September 1842, on a bond, dated October 21st 1813, given to the plaintiff by the defendant Moore, as principal, and the other defendants, as sureties, in the penal sum of $30,000.

<p>Before the St. of 1830, c. 110, took effect, it was not the official duty of a deputy sheriff to pay any portion of his fees to the sheriff; but his obligation, if any, so to do, resulted from his agreement with the sheriff, and was a personal duty : Hence, where a deputy sheriff gave a bond to the sheriff, in 1824, conditioned to discharge and perform the duties of such deputy, according to his oath of office, and to save the sheriff harmless from all damages, costs, &c., that might accrue against him by reason of his appointing said deputy, or by means of any malfeasance, &c., of said deputy, in said office; it was held, that the condition of the bond was not broken by the deputy’s omission to pay a portion of his fees of office to the sheriff.</p> <p>The condition of a bond given to a sheriff by his deputy, was thus: That said deputy u shall keep a fair register, or registers, of all warrants, summonses, writs and precepts, that may come to his hands as a deputy sheriff, and of his doings and fees thereon, in such fit and concise manner as the said A.” (the sheriff) 11 shall order, and subject to his inspection,” &c.; u and shall annually ” (in certain months named) u furnish said A. with a true copy of the said register or registers.” Held, that the sheriff’s order in what manner the register should be kept was not a condition precedent, and that the deputy was bound, though no such order was given, to keep a register, in some convenient form, which would exhibit a correct statement of all processes committed to him, and of his doings and fees thereon; and that his omission to keep such full and accurate register was a breach of said condition.</p>

<p>Appeal from a decree of the judge of probate.</p> <p>The appellants were sureties of Moses Cummings, on several promissory notes. Said Cummings died insolvent, leaving said notes unpaid. Abijah Thompson, the appellee, was appointed administrator of said Cummings’s estate; and, upon his representation, commissioners were appointed to receive and examine all claims of creditors against the same. The holders of the aforesaid notes laid their claims thereon before said commissioners, who allowed them in full against said Cummings’s estate, and made their return to the judge of probate at the expiration of the time for the proof of debts against said estate. The appellants afterwards, before any decree was made for the distribution of said Cummings’s effects among the creditors, presented a petition to the judge of probate, stating that they should be obliged, by reason of said Cummings’s estate being insolvent, to pay a portion of the aforesaid notes that they were unable to prove their claims before the commissioners, because the amount which they might be obliged to pay was uncertain; and praying the judge to order a sum to be retained in the hands of said administrator, (the appellee,) “ sufficient to give them an equal distributive share with all the other creditors of the said Moses Cummings, deceased, according to the statute for such case provided.” The judge of probate passed a decree denying the prayer of said petition.</p>

Tbe plaintiffs set forth, in a bill in equity, that Solomon Gilson, by his last will, executed October 8th 1835, made the following disposition of his property: “ First, I direct that all my just debts and funeral charges be paid as soon as conveniently may be. 2.

Bill in EquiTr, brought by the administrator, with the will annexed, of the estate of John Prescott, late of West ford, against said John’s heirs and legatees.

Trespass for breaking and entering the dwelling-house of said Samuel A., in Charlestown, and damaging the same, and assaulting, frightening, beating and injuring the female plaintiff. Trial on the general issue, in the court of common pleas.

<p>A collector of city taxes is et a public officer,” within the first section of the United States bankrupt act of 1841, and a debt which he owes the city in consequence of a defalcation in his office of collector, is a fiduciary debt.</p> <p>Fiduciary debts may be proved, under the United States bankrupt act of 1841, equally with other debts, if the creditors to whom they are due so elect 3 and if such creditors prove their debts and take a dividend, they are barred, like other creditors, by the debtor’s discharge and certificate: Alitert of fiduciary debts, which are not proved under the bankrupt act.</p> <p>A creditor proved a fiduciary debt, under the United States bankrupt act of 1841, for the purpose of preventing the debtor from obtaining a discharge from an}' of his debts: The circuit court of the United States soon after decided, that the owing of fiduciary debts would not prevent the debtor’s discharge from other debts 3 and that fiduciary debts, if proved, &c., would be discharged ¡ The creditor thereupon petitioned the district court, before which he had proved his debt, to withdraw his claim and proof. The court granted said petition, and thereupon gave the debtor a certificate of discharge. Held, that said fiduciary debt was not barred by the debtor’s discharge.</p>

<p>This was a bill in equity, filed on the 29th of December 1841, in which the plaintiff alleged that her deceased husband, Henry Van Vronker, on the 9th of December 1831, while she was his wife, was seized of a parcel of land in Lowell, with the, buildings thereon, and made a mortgage deed of the same, on said day, to Daniel Wild, jr. to secure payment of a promissory note, made to said Daniel by said Henry, for $5 700, payable in two years with interest semi-annually; that the plaintiff executed said dee 1, with her said husband, and thereby, as against said Daniel and his assigns, released all claim to dower in said mortgaged prem'ses: That on the 14th of December 1831, said Daniel assigned the said mortgage and note to the defendant for a valuable consideration: That said Henry died on the 3d of March 1836, leaving the whole principal of said note due and unpaid : That at the March term 1838, of the court of common pleas in this county, judgment was rendered in favor of Zachariah Sheldon, upon his petition for the benefit provided by the statute relating to the lien of mechanics and others, and it was thereupon ordered and decreed by said court, that the estate of said Henry and his heirs should be sold according to said statute, and that a warrant for the sale thereof was issued, which warrant was executed on the 28th of July 1838, by a sale thereon of all the right, title and interest, which said Henry and his heirs had in said parcel of land, to the defendant; which right, title and interest were conveyed to the defendant by the officer who executed said warrant: That the defendant, on the 2d of January 1839, under and by virtue of said last mentioned sale and conveyance, and by virtue of said mortgage, entered upon and had ever since held possession of said land, receiving and appropriating to his own use all the rents and profits thereof: That the plaintiff had never released her right of dower in said mortgaged land and buildings, except as against said mortgage, and was entitled to have dower therein, and in the equity to redeem the same: That she, on the 2d of January 1839, and on divers days before and since, had offered and tendered to the defendant to redeem said mortgage, and that she still desired and was ready to pay to him such sum as might be found due from her, for and towards such redemption, or to contribute thereto, in such manner and proportion, and to perform such condition in the premises, as the court might require of her: That the defendant denied her right to dower in said equity of redemption, and refused, though requested, to exhibit any account, or otherwise to account to her for the rents and profits of said estate ; excluded her from said estate ; and was proceeding to make the title thereto absolute, under said mortgage, to the exclusion of the plaintiff.</p> <p>The prayer of the bill was, that the defendant might make answer on oath, and that the plaintiff might be at liberty to redeem said estate, or to contribute towards the redemption thereof.</p> <p>The defendant in his answer (admitting most of the allegations in the bill) averred that the plaintiff, after her husband’s death, remained in possession of the mortgaged premises until January 2d 1839, though the whole principal of the sum, for which they were mortgaged, was due and unpaid ; that her husband’s estate was insolvent; that while the plaintiff was in possession of the premises, viz. on the 25th of February 1838, the defendant brought a suit against her, to recover possession of said premises, for breach of the condition of said mortgage, and for the purpose of foreclosure, and recovered conditional judgment against her, for possession, at the September term 1838, of the court of common pleas ; that at the time when said judgment was rendered, $818-41 was the sum due on the mortgage; and that the costs of suit were taxed at $ 13-78: That on the 12th of December 1838, the amount due on the mortgage remained unpaid, and the defendant then sued out a writ of possession, on said judgment, on which writ he was duly put into possession of the mortgaged premises on the 3d of January 1839, and had since been in peaceable possession, till service upon him of the plaintiff’s bill; no tender, nor request to render an account, having been made on him by the plaintiff, or in her behalf: That Henry Van Vronker, the plaintiff’s husband, on the 1st of September 1831, made a written contract with Zachariah Sheldon, wherein said Sheldon covenanted with him to erect a dwelling-house on said premises, and furnish materials for the same, and said Henry covenanted with said Sheldon to pay him therefor $1250 in certain specified instalments; which contract was duly recorded in the registry of deeds, on the 23d of November 1831, and before the date of said mortgage : That said Sheldon, pursuant to said contract, erected and finished the house, which was accepted by said Henry; whereby, and by force of the statute in such case made, said Sheldon had a lien upon said land, and proceeded to enforce the same by petition, judgment and sale, as in the plaintiff’s bill is stated: That the defendant purchased the premises at said sale thereof, for the sum of $ 500 ; the sum due to said Sheldon being $424-27, and the cost of process $ 18-03 : That the defendant did not enter upon the premises by virtue of the deed received of the officer who made said sale, but solely by virtue of the mortgage.</p> <p>The defendant further averred, that when the mortgage was assigned to him, and for a long time after, he had no knowledge of said contract and claim of Sheldon, but believed the premises to be free of all incumbrances prior to the mortgage, and was compelled, in order to save his rights under the mortgage, to remove said Sheldon’s incumbrance: That $ 500, so as aforesaid paid by the defendant, together with the amount due on the mortgage, was the full value of the premises; and that he was ready to release the premises to the plaintiff, on her paying said sums, with interest thereon, deducting the amount of rents and profits received by him over and above the sums that he had expended in reasonable repairs and improvements, and paid for taxes and other necessary expenses in the management of the premises.</p> <p>The defendant denied the plaintiff’s right to redeem said mortgage, because he had been in peaceable possession, for condition broken, more than three years before the service of the subpoena on him in this suit; but if the court should hold otherwise, then he insisted that $500, paid by him as aforesaid, should be added to the amount due on the mortgage. He also denied that the plaintiff had ever called on him to render an account.</p> <p>This case was heard on the bill and answer.</p>

<p>A husband, though an infant, is liable for debts contracted by his wife before marriage.</p> <p>An infant whose estate is assigned under the insolvent law of 1838, cannot revoke a transfer of property previously made by him in payment of his wife's debts contracted before marriage, so as to vest that property in his assignee.</p> <p>An assignment of an insolvent debtor's estate does not revoke an order previously drawn by him, bond fide, on one of his debtors, in payment of one of his creditors, and accepted by the drawee, though the order be not paid at the time ot the first publication of the notice of the issuing of the warrant to the messenger.</p> <p>*n a suit by the assignee of an insolvent debtor, under St. 1841, c. 124, $3, to recover the value of property alleged to have been transferred by the debtor in preference of one of his creditors, the burden of proof is on the plaintiff, to show that the creditor had reasonable cause to believe, when the property was transferred to him, that the debtor was insolvent.</p>

<p>These were actions of trespass upon the case, in each of which the declaration alleged that the defendant, on the 25th of September 1843, was tenant for his own life of a certain lot of land in Cambridge, called the “ Hotel Estate,” and on that day felled, cut down, and destroyed, three elm trees there standing and growing for timber, and converted them to his own use, whereby the reversionary interest in said land had been injured. Each case was submitted to the court on an agreed statement of facts. In the first action, those facts were as follows:</p> <p>The defendant is tenant for life of the premises described in the plaintiffs’ writ, and does not deny that he has committed waste. The plaintiffs claim the reversion in fee : but the defendant denies that they have any interest in the ¿state. Both parties claim under John Richardson, who died May 3d 1837, leaving a will, dated April 23d 1837, and proved and allowed on the 27th of June 1837, and which, it is agreed, (if competent to be proved,) was actually drawn up before the 18th of April 1837, though not signed till said 23d of April. Said will is to be taken as part of the case. The defendant, and his wife Hannah B. Wheatland, a daughter of the said testator, who took life estates in the locus described in the plaintiffs’ writ, by said will, were both living at the testator’s death. They had a child born April 12th 1837, who died on the 18th of that month, and another child (the plaintiff in the second action) born October 21st 1839. Said Hannah, wife of the defendant, died on the 15th of March 1840. Two of the plaintiffs, viz. John H. and George W. Richardson, are the sons of said John Richardson, and the other plaintiffs are the children of his two daughters who died during his life. Said John H. and George W. Richardson and said Hannah B. Wheatland were the only children of said John Richardson who survived him; and said John H. and George W. both had children living at the making and at the execution of the said will, and at the death of the testator.</p> <p>If the plaintiffs have sufficient interest in the estate to enable them to maintain any action for waste, they shall have judgment for $ and costs ; otherwise, the defendant shall have judgment.</p> <p>In the second case, the foregoing facts, so far as they were applicable, were also agreed by the parties, and there was a like agreement as to the judgment to be rendered.</p> <p>The clause in the will of said John Richardson, on which the question in these cases depended, was as follows : “ Seventh. I give and bequeath to my daughter, Hannah B. Wheatland, wife of George Wheatland, Esq., the East Cambridge Hotel Estate, called the Union Hotel, being all the real estate I own in East Cambridge, to her during her life, and to her husband, George Wheatland, during his life, to be kept in repair out of the income thereof; and at the decease of said Hannah B. Wheatland, and said George Wheatland, to be divided among the heirs of said Hannah; possession to be had in two years after my decease.”</p> <p>These cases were argued at Salem, November 9th 1843, by Ward, for the plaintiffs in the first action and for the defendant in the second action, and by C. P. Curtis, for the defendant in the first action and for the plaintiff in the second action. The opinion of the court was delivered at Boston, January 15th 1844.</p>

<p>Trespass upon the case for obstructing the plaintiffs’ right of way, from their land across a parcel of land in Rochester, belonging to the defendant and David Hathaway, and called the Old Wharf. Trial before Shaw, C. J., whose report of the case was as follows:</p> <p>It appeared that the plaintiffs owned a lot of land bounded westerly on a highway, easterly on the tide water of Rochester Haibor, and southerly on a wharf owned by the defendant. From the highway was an open passage-way, commonly used for the passage of teams and carriages easterly towards the end of the wharf which was bounded on tide water.</p> <p>The plaintiffs claimed a general right of way from their own land to and upon the wharf, and thence by the open passageway, along the wharf, to the highway; and their complaint was, that the defendant laid timber along the wharf, and near the plaintiffs’ line, against that part of their land where there had been, for a considerable time, bars or a gate, and which place had been most commonly used for passing from their land on to the wharf.</p> <p>The parties went extensively into the investigation of the ancient title, both to the wharf on the south, and the plaintiffs’ lot on the north. Both parties claimed title under Joseph Hammatt; namely, the plaintiffs, the whole of their lot on the north, and the defendant three sixteenths of the wharf on the south. It appeared that on the 30th of May 1831, said Hammatt, owning the lot on the north, and three sixteenths of the lot adjoining on the south, conveyed to Zephaniah Eddy, by deed of bargain, sale and quitclaim, three sixteenths of the wharf, with the privileges and appurtenances. In that deed was this reservation: “Reserving to myself, my heirs and assigns, to pass to and from said wharf to my land on the north side of said wharf.” Said Eddy conveyed the same to Leonard Bolles, by deed dated July 25th 1834. In this deed, for greater certainty, Eddy referred to the above deed to him from Hammatt. Said Bolles, by deed of quitclaim, dated July 29th 1837, conveyed one undivided half of the wharf to David Lewis; and said Lewis, on the 16th of July 1841, by deed of quitclaim, conveyed one half of the wharf to the defendant.</p> <p>The plaintiffs’ title to the lot on the north side was traced to Joseph Hammatt, as follows: Said Hammatt, on the 19th of September 1838, conveyed said lot, by deed of quitclaim, to Walter Turner, jr., bounded southerly on the wharf, with all the privileges and appurtenances. Said Turner, on the 13th of July 1841, conveyed the same, by a like deed, to the plaintiffs.</p> <p>The plaintiffs also gave in evidence a deed from the defendant and David Hathaway to them, dated October 3d 1841, by which the defendant and said Hathaway quitclaimed all their right, title and interest, to the lot on the north, (which was described as bounding southerly on the wharf owned by them,) with the privileges and appurtenances.</p> <p>The legal construction put by the court upon these conveyances was this: That the effect of the deed of Hammatt to Eddy of his interest in the wharf, reserving a right of way to his land, was, so far as that deed operated to convey an interest in the wharf, to create an easement to and over the wharf, for the benefit of his land on the north, and to annex it to that estate, as one of its appurtenances; and that when Eddy conveyed his interest in the wharf to Bolles, and Bolles to Lewis, and Lewis to the defendant, each took subject to that easement: And so when Hammatt conveyed his estate on the north to Turner, and Turner to the plaintiffs, each took the granted estate, with the benefit of that easement, as one of its appurte nances: That this was confirmed by the deed of the defendant and Hathaway, to the plaintiffs, of the lot of land on the north, with the privileges and appurtenances belonging thereto.</p> <p>It was therefore ruled, that if these deeds were duly executed and delivered, (which was not denied,) whatever might be the right of the plaintiffs against other proprietors of the wharf, they had the right of way claimed, as against the defendant; and if it was obstructed by him, the plaintiffs were entitled to recover some damages.</p> <p>A verdict was returned for the plaintiffs, which is to be set aside, and a new trial granted, if the construction given of the deeds was wrong, or if the plaintiffs are not entitled, as against the defendant, to the right of way claimed by them.</p> <p>This case was argued at the last October term.</p>

<p>Where A. guaranties to B. any debt that C. may owe him, and B. sues A. on the guaranty, alleging in his declaration that C. was indebted to him on a certain promissory note, B. may give in evidence, for preliminary purposes, a judgment recovered by him against C. on that note 5 but such judgment is not evidence, as against A., that C. was indebted to B. on the note.</p> <p>A. agreed, by letter of guaranty, delivered to B. in February 1831, to be responsible to a bank u for any moneys, notes, discounts or accounts whatever, that B.” might “ contract, receive a credit for, or be in any wise indebted to the said bank: ” In February 1834, the bank discounted a draft drawn by K. on B., and by him accepted, payable to P. and C. 5 and in March 1834, discounted a promissory note, made by B., payable to T.;s order, and indorsed by T. In an action by the bank against A. on this letter of guaranty, to recover the amount of said draft and note, it was held that A. might give evidence that B. kept said letter in his possession until the autumn of 1833 5 that he then applied in writing to the bank to discount the drafts of K. on him, stating that the money was wanted for K., and offering to deposit said letter, as collateral security; that the bank required that said letter should be first renewed and confirmed, and that A. thereupon renewed and confirmed it, at B.'s request, and that B. then delivered it to the bank; and that the bank never afterwards discounted any draft or note for B., or for his benefit. Held also, on this evidence, that the bank could not maintain said action against A.; that he was answerable only for such drafts of K. on B. as the bank should discount for B or on his request, or for his particular benefit.</p>

<p>The executors of the last will of Nathaniel Tucker, late of Milton in the county of Norfolk, set forth in a bill in equity that said Tucker, by said will executed on the 5th of January 1838, after having therein given various legacies, added the following directions : “ If there should be property at my decease, more than sufficient to discharge the abovenamed legacies, I dispose of it as follows, that is to say; ” and then proceeded to give various other pecuniary and eleemosynary legacies; and therein, by different items thereof, bequeathed as follows : “ Item 39. I give and bequeath to the Seaman’s Aid Society, in the city of Boston, the sum of one thousand dollars, the interest only of which is to be expended for the benefit of the society. Item 45. If any property remains, after paying all the debts, charges and legacies abovenamed, I give apd bequeath it as follows: One fourth part of said residue and remainder to be divided between the Seaman’s Aid Society and the American Temperance Society. Item 47. My will is, in all cases, in this will, where any sum is given to any society or voluntary association not incorporated, that the same be given and go to the treasurer, for the time being, of such society or voluntary association, for the purpose of such society respectively, and that the receipt of such treasurer for the same shall be a sufficient discharge; and I do hereby will and devise accordingly : ” That the property of said Tucker, in the plaintiffs’ hands, was more than sufficient to pay every legacy given by his will, and that they were desirous to carry their trust, as executors, in respect to said legacies, into full effect, with due speed : That difficulties had occurred in executing that part of their trust arising out of the aforesaid 39th, 45th and 47th items of said will, by reason of the adverse claims of persons voluntarily associated, in divers bodies, for the purpose of befriending, aiding and relieving seamen: That two societies of persons associated for this purpose in the city of Boston, and one in the city of New York, (neither of them incorporated,) had severally interposed their claims to these legacies : That one of said societies in Boston declare themselves designated by the name of the Seaman’s Friend, and the other by the name of the Seaman’s Aid ; that the society in New York declare their designation to be the American Seaman’s Friend, and that all of them are associated for the same object, and are successfully pursuing that object.</p> <p>The bill then set forth, that although the said testator had long contemplated the manner of disposing of his property, and had cast several dispositions thereof into the form of a will and codicils thereto, yet that in his last sickness the whole was revised and rewritten; that the items intended for the benefit of seamen were then first inserted in his will; he having learned from a periodical publication, (the Sailor’s Magazine,) to which he was a subscriber, and which he distributed, that there was a society for that purpose, in the objects of which he took a deep interest, and the encouragement of that society being one reason for having his will rewritten: That this society was the American Seaman’s Friend Society in the city of New York ; and that the plaintiffs had reason to believe that the testator had no knowledge of any other association for that purpose, and was not even aware of the locality of this; but that he knew of its existence and of its beneficial operation upon seamen ; that he was acquainted with the corresponding secretary of that society and one of its other officers or agents, and had repeatedly expressed a determination to give a legacy to said society: That one of the plaintiffs [Edmund J. Baker] wrote said last will, having then no knowledge of any association for the benefit of seamen besides the female society in Boston, called the Seaman’s Aid Society; that the testator directed him to insert the legacies aforesaid as made to the Seaman’s Friend Society ; that he (the writer) told the testator that the name of the society was the Seaman’s Aid Society; that the testator said he had never heard it called by any other name than the Seaman’s Friend Society ; that search was then made for one of said magazines, but that they had been distributed, and none was found; that the testator, anxious to complete his will, by reason of increasing infirmity, submitted to the writer, (who had reassured him of the designation,) as best conversant with the object of his bounty; that the testator’s extreme illness' required the immediate execution of the will, and prevented further thought or discussion of this subject.</p> <p>The plaintiffs further stated in the bill, that in view of the foregoing facts and circumstances, they had no doubt of the intention of the testator to bestow the aforesaid legacies on the American Seaman’s Friend Society, in the city of New York j fully believing that the designation of the Seaman’s Aid Society of Boston, as made by said will, was caused by the misapprehension and mistake of the testator, and that the misnomer of an association, which is not a body politic or corporate, should not be the means of interrupting or turning aside the true object of the testator’s bounty : But that the said Seaman’s Aid Society, and its treasurer, and said Seaman’s Friend Society, of Boston, and its treasurer, and also the said American Seaman’s Friend Society, of New York, and its treasurer, respectively insist that the testator’s bounty was intended for them, and respectively claim of the plaintiffs the payment of said legacies.</p> <p>The prayer of the plaintiffs therefore was, that said several societies, and their respective treasurers, might make answer, on oath, to the matters aforesaid, and set forth what right and inter est they have, or claim to have, in the testator’s estate, and especially to said legacies, and how they support their claims; and that, as the plaintiffs were unable to execute the trusts of said will, without the direction of a court of equity, the court would pass a decree, by which the plaintiffs might be directed to pay said legacies to the party entitled thereto, and by which all other claimants thereof might be barred of their claims.</p> <p>The answer of the Seaman’s Aid Society, made by the president and secretary thereof, (after admitting most of the allegations in the bill,) was thus: “ They do not perceive any valid reason why they are not and were not intended to be the legatees referred to by the testator in said will; but on the other hand, they believe that such was his intention, and that the said legacies were made to them: And that, so far as relates to the allegations, in said bill, relative to the conversation, intentions and doings of said testator, or of the person who drafted his said will, (which said allegations they believe to be wholly irrelevant and improper,) they do not admit, but deny the same, and know nothing thereof other than appears in the will.”</p> <p>The joint and several answer of the American Seaman’s Friend Society and their treasurer, and the Boston Seaman’s Friend Society, by their president and treasurer, was in substance as follows: That at the time of making said answer, and at the time of the death of said testator, each of said societies was a body corporate; the former being incorporated by an act of the legislature of the State of New York, and the latter by an act of the legislature of the Commonwealth of Massachusetts; and that said Seaman’s Aid Society was not a body corporate, had no legal existence, and was not competent to take said bequests: That the circumstances, conversations and directions, leading to and attending the making and rewriting of said last will, and the knowledge, motives, and intent of said testator therein, were such as are set forth in the plaintiffs’ bill; and that the name of the Seaman’s Aid Society was inserted in said will through the mistake of the scrivener thereof, who was directed to insert therein the name of the Seaman’s Friend Society as the intended object of the said testator’s bounty : That the American Seaman’s Friend Society in the city of New York, and the Seaman’s Friend Society in Boston, have long been associated for the same object; that the latter so ciety is an affiliated branch of the former, and after supporting its own local operations, is bound to pay over its surplus funds into the treasury of the former, which is the parent society : That the present corresponding secretary of said parent society was, for several years, agent of the Boston branch, and at the same time agent for the Sailor’s Magazine, a publication printed by the parent society in New York; and that h,e became acquainted with said testator, who contributed to the funds both of said parent and said branch societies: That said parent and branch societies were both known to said testator, under the common appellation of the Seaman’s Friend Society, and that he never had any knowledge of the existence of said Seaman’s Aid Society.</p> <p>Wherefore said societies claimed to have said legacies paid to said American Seaman’s Friend Society, or its treasurer, by the plaintiffs; because the mistake as to the name of the intended legatee, made by said testator acting, at the point of death, under the influence of the inconsiderate and unfounded assertions of the scrivener of his will, ought not to divert said testator’s benefaction from its intended object.</p> <p>A general replication was filed by the plaintiffs, and evidence was taken and published, which supported the allegations of fact in the bill and in the answers. The parties agreed that the records of the respective societies aforesaid might be used as evidence, on the argument. So much of the evidence as is necessary to the full understanding of the points adjudged, appears in the opinion of the court.</p> <p>This case was argued in 1842.</p>

Petition for leave to enter an appeal, pursuant to Rev. Sts. c. 68, § 13, taken from a decision of the commissioners of insolvency, appointed to receive and examine the claims of creditors against the estate of Nathaniel Cross, the appellees’ intestate, disallowing a claim of more than $300, made against said estate by the appellant.

<p>A promissory note was made payable “ at either bank at Boston/* in four months from December 27th 1841, and was indorsed by the payee: On the 27th of April 1842, the holder sent a messenger, with the note and a written notice to the indorser requesting payment, to the house in which the maker and indorser resided: The maker was absent, but the indorser read the notice and told the messenger that the maker would see the holder in a short time, and wished him not to sue the note until the maker should see him: ¡No demand was afterwards made on the maker, nor notice given to the indorser. Held, that the indorser had waived a legal demand and notice, and was answerable to the holder.</p>

<p>Assumpsit to recover pay for professional services. The case was submitted to the court on the following statement of facts:</p> <p>The plaintiff, who is a physician and surgeon, and an inhabitant of Hingham, was called upon, on the 25th of April 1842, to attend Freeman House, jr., a minor, who had been wounded by the bursting of a gun, and stood in need of immediate relief; and the plaintiff did attend him, from time to time, and administer to his relief and cure. Said House, on said 25th of April, was living in the town of Scituate, at the house of Freeman French, and was at said French’s house during all the time of the plaintiff’s attendance upon him. On or about said 25th of April, the plaintiff called at the house of one of the overseers of the poor of the town of Scituate, for the purpose of seeing said overseer; but he being absent, the plaintiff requested the wife and father of said overseer to inform him of the condition of said House, and that the plaintiff was attending upon him, and that he needed and would need medical and surgical assistance ; that he (said House) did not wish to be considered a pauper; and that the plaintiff desired to know whether the town of Scituate would remunerate him for such services as he had rendered, and for such services as it should be necessary for him to render. This notice, information and request, which were verbal, were communicated to said overseer, by his wife, on or about said day ; and within a week afterwards, the plaintiff made a similar communication to said overseer, who agreed to submit the matter to the board of overseers, and to inform the plaintiff, if said board should take any order thereon and conclude to become responsible. Said overseer reported the matter to said board, at their first subsequent meeting, and they declined to take any order on the subject; but said overseer never informed the plaintiff of their refusal.</p> <p>Said House was 17 or 18 years old, and had no means of support besides his labor, from which he was prevented by his wound ; and his father had not sufficient ability to maintain him: Nor was the plaintiff, nor any other individual, liable by law to support him. Said House’s father had a legal settlement in the town of Pembroke, but he resided in Scituate : And the legal settlement of said House was also in Pembroke. Neither the said House nor his father had ever received any support from the town of Scituate, and no application was made to the overseers of the poor of said town, in the present case, except as above stated.</p> <p>There were in the town of Scituate, when the plaintiff rendered the services aforesaid, several physicians of competent medical and surgical skill, some of whom lived as near to the house of the above mentioned French as the plaintiff; with all of whom the defendants had a special contract in relation to their services to the poor of the town, and which services were to be rendered under said contract, for a stipulated compensation. But there is no evidence that the plaintiff had knowledge of such contract.</p> <p>Defendants to be defaulted, if the plaintiff is entitled to recover, and judgment to be entered for the plaintiff; otherwise, the plaintiff to become nonsuit.</p>

<p>Trespass for breach and entry of the plaintiff’s close and taking away two of his heifers. The following facts were agreed on by the parties:</p> <p>The defendants, in 1841, were assessors of the town of Middleborough, and on the 13th of December in that year assessed a tax, in due form, upon the plaintiff and others, as constituting school district No. 23 in said town, and committed it, for collection, to the collector of taxes for the town, who entered the plaintiff’s close and distrained for said tax.</p> <p>In the year 1809, the whole of said town was divided and formed into school districts, and the plaintiff and his estate were included in district No. 20. In that year he paid a tax that was assessed for the building of a school house in that district, and has not since changed his residence.</p> <p>In the warrant for a meeting of said town, held on the 2d of March 1840, there was this article: “ To act any thing in relation to the limits of school districts that the town may see cause.” Under this article, the town received a petition from the inhabitants of school districts Nos. 34, 20, 21 and 23, stating that they were “ desirous that said districts should be districted anew.” The whole subject was thereupon referred to the selectmen, and the meeting was afterwards adjourned to the 26th of October 1840. At the adjourned meeting, the select men made a report, recommending that said four districts should be made into three only. That report was recommitted to the selectmen, as a committee “ to divide said districts.”</p> <p>The fifth article in the warrant for the meeting of said town on the 1st of March 1841 was, “to hear all reports^of committees, and act thereon; ” and the thirteenth article was, “ to act any thing in relation to the limits of school districts, or relating to individuals, or parts of districts, who may wish to be set off from one district to another, in or out of this town, into an adjoining town.” The record of the vote on said thirteenth article was thus : “ Voted to accept of a report made by the committee to district an.ew districts Nos. 34, 20, 21 and 23, which report makes three out of the four ; said report was recommitted for the purpose of setting up the bounds and monuments.” The said three districts were designated, in said report, as Nos. 20, 21 and 23 ; and the plaintiff and his estate were within the limits of district No. 23. These limits are described, as in the paper which is copied in the margin.*</p> <p>That paper was handed to the town clerk, by Gamaliel Rounseville, chairman of said committee, about a week after the meeting of March 1st 1841, and was forthwith recorded by said clerk. Considerable portions of the inhabitants of the old districts, Nos. 20, 21 and 23, objected to the petition for districting anew, and sent to the town protests or remonstrances against said petition; but none of the inhabitants of district No. 34 made any objection to said proceedings.</p> <p>The persons living within the lines which, by said proceeding, constitute district No. 23, held a district meeting, at which the plaintiff was not present, and voted to raise $ 175 for the purpose of providing a school house, and that vote was regularly notified to the defendants, who thereupon assessed the said sum on all the polls and estates of the persons aforesaid. One half of district No. 20, as constituted in 1809, is included ir> the aforesaid lines of what is now called No. 23. The distric* which, by the districting in 1809, was No. 23, had a school house sufficient for that district, when said assessment was made.</p>

<p>The agent of a manufacturing corporation was empowered by its by-laws to manage the affairs of the corporation committed to his care, and to exercise the powers comr mitted to him according to his best ability and discretion, and promptly to collect all assessments and other sums that should become due to the corporation, and to disburse them according to the order of the board of directors, who were made a board of control over him. Held, that the agent, if the board of directors did not interpose to control his proceedings, had authority to employ workmen to carry on the business of the corporation, and to pay them with its funds, or, not being in funds, Hi give the notes of the corporation in payment.</p>

<p>It is not a presumption of law, from the mere fact that more than six years have elapsed since the date of a promissory note, that it is barred by the statute of limitations, though it does not appear whether or not the note was signed in the presence of an attesting witness.</p> <p>Where the payee of a note, more than six years after its date, pledges it as security for a debt, and after paying the debt and demanding a return of the note, brings an action against the pawnee for not returning it, and the defendant does not show that the promisor was unable to pay the note, the jury are at liberty to assess damages for the plaintiff to the full amount of the note. In such case, the filing in court of an obligation of the defendant to indemnify the plaintiff against any act done or to be done by the defendant in respect to the note, is no ground for reducing the plaintifPs damages.</p> <p>In such action, the defendant cannot introduce the testimony of the maker of the note, to prove that the maker told him that nothing was due to the payee on the note.</p>

<p>Since the passing of the act of congress of 1839, c. 35, as well as before, a debtor committed to a jail in this State, on execution issuing from a court of the United States, may be legally discharged from imprisonment on taking the poor debtors* oath before two commissioners appointed by the judge of the district court of the United States, pursuant to the act of congress of 1800, c. 4, on fifteen days' previous notice, by citation, being given to the execution creditor, pursuant to the act of congress of 2824, e. 40, to show cause why such oath should not be administered.</p>

Daniel Claflin, who was summoned as trustee of Wells, the principal defendant, made a sworn answer to the following effect : That he was executor of the last will of Ezra A. Fisher, late of Attleborough, which was made on the 23d of October 1836, and in which was this clause: “ I give and bequeath to my honored mother all my property that is left after paying my just debts and funeral expenses; to hold the same to her and her heirs and assigns, to be for the sole use of…

<p>As a mortgage of personal property need not be under seal, and as a mortgage of such property of a firm, made by one of the partners to secure a debt of the firm, is valid, the addition by him of a seal thereto does not vitiate it.</p> <p>A., a part owner of a vessel which was at sea, mortgaged his interest therein to B. s After the vessel returned, A. mortgaged all his interest in her, “ her appurtenances, outfits, cargo and catchings,” to C., stating, in this last mortgage, that the hull of said vessel was subject to B.’s mortgage : A. and the other owners of the vessel fitted her out for a whaling voyage, with the knowledge of B., and A. furnished his portion of her outfits for that voyage. A few days before the vessel sailed on said voyage, B. took formal possession of her, under his mortgage, when no one who was interested in her was on board 3 but gave no notice to A. that he had so done : On the return of the vessel from that voyage, her cargo was sold by an agent thereto appointed by her several owners, and the proceeds came into his hands. Held, as between B. and C., that C. was entitled to A.’s share of those proceeds.</p> <p>Where a part owner of a vessel and cargo mortgages his share thereof, and afterwards he and the other owners appoint an agent to sell the whole cargo, such agent, after selling the cargo and receiving the proceeds, is liable to the mortgagee, in an action for money had and received, for the mortgagor’s share of those proceeds.</p>

<p>In an action of trespass upon the case, the plaintiffs set forth that, by the last will of Samuel Wilbur, of which the defendant was executor, they were made residuary legatees ; that property of said Samuel, more than sufficient to pay all his debts and the legacies bequeathed by him to others, came into the defendant’s hands, as such executor; and that the defendant so negligently and wastefully managed said property, that the plaintiffs had lost a large sum of money, to wit, $2000, which otherwise would have come to them under and by virtue of said will, &c.</p> <p>The action was commenced in the court of common pleas, and was removed to the supreme judicial court, by the defendant, under the provisions of St. 1840, c. 87, § 3. The defendant now moved that the action be dismissed for want of jurisdiction.</p>

<p>A., in a written representation that B. was entitled to credit, concealed the fact that B. was a minor, with the view to give him a credit, knowing or believing that he would not obtain credit if that fact was known: C. sold goods to B. on credit, upon the faith of A.;s representation: B. did not pay for the goods, but left the country, and went on a whaling voyage. Held, that A. was guilty of an actionable fraud, and that C. was entitled to recover of him the amount of the goods, without first bringing an action therefor against B.</p>

<p>An officer, who holds an execution in the common form, issued by a court having jurisdiction, against a defendant who had been discharged under the insolvent law of 1838, c. 163, after the judgment on which the execution issued was rendered, is not liable to an action of trespass for arresting and committing such defendant on the execution, although the defendant shows his discharge to the officer before he is arrested.</p>

<p>The plaintiffs in this suit were Enoch B. Hathaway, Charles and 'Increase Robinson, and the Taunton Iron Company, former joint owners of a sloop. The action was assumpsit on a note signed by Charles Richmond, jr. as agent for the Taunton Iron Foundry, and given to the plaintiffs in payment of freight earned by said sloop in transporting goods for said Foundry. There was also an indebitatus count for freight due to the plaintiffs for carriage of goods on board said sloop. The defendants were Samuel Crocker, Charles Richmond, sen. and Charles Richmond, jr., who were alleged to be partners under the name and firm of the Taunton Iron Foundry. Samuel Crocker pleaded the general issue, with a statement, by way of defence, of his discharge under me insolvent law of 1836, c. 238. Charles Richmond, sen. was defaulted. At the trial, in the court of common pleas, the jury, under the direction of the court, and without objection from any party, returned a general verdict for said Crocker, at his request.</p> <p>The plaintiffs, to prove that Charles Richmond, jr. was a partner in the firm known by the style of the Taunton Iron Foundry, introduced Stephen Rhoades as a witness, in the course of whose testimony it appeared that he was owner of shares in the Taunton Bank; that said bank was one of the many creditors of the Taunton Iron Company, one of the plaintiffs in this action and a corporate body; and that said company had failed and made a general assignment of its property, for the benefit of all its creditors. The defendants thereupon objected to the competency of said Rhoades as a witness, on the ground of interest. The plaintiffs then stated that this action was prosecuted for the sole benefit of Enoch B. Hathaway, one of the plaintiffs, to whom the whole cause of action was assigned by the other plaintiffs long before the action was commenced, said Hathaway having taken the note in suit as his share, or part of his share, of the earnings of the sloop aforesaid. Much evidence was offered to prove this assignment, and among other proofs thereof, certain books kept by the clerk of the Taunton Iron Foundry were submitted to an examination by the court. Upon the whole evidence on this point, the court, being of opinion that said assignment had been duly and legally made before this action was brought, and that said Rhoades had no interest in the action, admitted his testimony.</p> <p>Samuel Crocker was called as a witness by the plaintiffs, and testified. Charles Richmond, sen. was called as a witness, by the defendant Charles Richmond, jf., without objection, and testified that said Richmond, jr. was not a partner. In the course of the cross-examination, he was asked by the plaintiffs’ counsel, if he had not told Oakes Ames that Charles Richmond, jr. was a partner in the Taunton Iron Foundry. The defendants’ counsel objected to this question, as incompetent to prove that said Richmond, jr. was a partner. The plaintiffs’ counsel then stated, that the question was asked for the purpose of contradicting the witness; and for that purpose the court permitted it to be asked: The witness replied that he had no recollection of it, but he thought it very likely he had so stated to said Ames; and gave his reasons th ;refor. He added, that C. Richmond, jr. never was a partner. Afterwards, the plaintiffs called said Ames, and inquired of him what, if any thing, C. Richmond, sen. had told him respecting C. Richmond, jr. being a partner m the Taunton Iron Foundry. The defendant objected to this question, on the ground that Ames, the witness, could be thus interrogated only for the purpose of contradicting C. Richmond, sen.; and as said Richmond had expressly admitted that such communication had been made to Ames, an answer, stating that he had informed Ames that Richmond,' jr. was a partner, would not contradict him. But the court permitted the question to be put, and Ames answered, that said Richmond, sen. had informed him that Richmond, jr. was a partner; and he proceeded to state the conversation between said Richmond, sen. and himself, as to the relation which said Richmond, jr. bore to said firm.</p> <p>The defendant contended that the general verdict in favor of Crocker, viz. that he never promised, was a bar to the plaintiffs’ recovery ; but the court ruled otherwise, and a verdict was returned against said Richmond, jr., who alleged exceptions to the aforesaid rulings of the court.</p>

Petition for partition of lands in Barnstable. The petitioner averred that he was seized, as tenant in common with the respondents, of one undivided fourth part of the premises described in his petition, being the same' that were conveyed to Samuel Whitman by his mother, Mercy Whitman, by deed executed and delivered on the 28th of July 1832. The respondents denied that the petitioner was seized of any part of said premises.

<p>A statute gave to a turnpike corporation the right to recover by its treasurer, in an action of trespass, a sum not exceeding fifty dollars, nor less than two dollars, of any person who should attempt to pass its toll gates, without first paying the legal toll: The treasurer commenced such action in the court of common pleas, and the jury assessed damages at a sum not exceeding twenty dollars. Held that, under the Rev. Sts. c. 121, $3, the plaintiff was entitled, for his costs, to no more than one quarter part of the damages assessed by the jury.</p>

Trespass for an injury done to the plaintiff’s horse. Trial in the court of common pleas.

<p>A company was incorporated with authority to make a canal of a depth and width sufficient for the passage of vessels not drawing more than nine feet of water, and to take the land of individuals therefor, on making them compensation, and to demand toll for the passage of all vessels through the canal, as soon as the same should be passable for vessels 3 provided, that if the corporation should Ci not complete a canal as aforesaid, passable for vessels drawing nine feet of water within three years,” the act of incorporation should be void: The corporation made a canal within three years, and established the vate of toll 3 and A.’s vessel, more than ten years afterwards, passed through the canal many times. Held, in a suit by the corporation against A. to recover tolls, that A. could not show, either m bar of the action, or for the purpose of reducing damages, that the canal was not so constructed as to admit vessels drawing nine feet of water.</p> <p>Where a corporation, which is authorized to demand a toll not exceeding a certain rate, at first establishes the toil at one rate, and afterwards at a higher rate, it is not necessary, in a suit to recover the higher rate of toll, that the corporation should show that the defendant had notice that the rate had been changed.</p> <p>An individual cannot maintain an action against the incorporated proprietors of a canal for damages caused by their omission to construct the canal according to the requisitions of their act of incorporation, or their omission to keep the canal in repair, if his damage be such only as he suffers in common with all others.</p>

Writ of error to reverse a judgment of the court of common pleas in the county of Bristol, rendered at the June term 184L. The plaintiff in error was found guilty, at that term, on an indictment which charged him with adultery, and was sentenced to one day’s solitary imprisonment, and confinement afterwards at hard labor, for the term of three years, in the state prison.

<p>Under St. 1842, c. 56, $ 1, the reading to a creditor, by an officer, of a notice of the time and place appointed for his debtor, who is committed on execution, to take the poor debtors' oath, is not a legal service of such notice j and if such debtor, who has given bond for the liberty of the jail limits, is admitted to that oath, after only such service of notice, and thereupon goes without those limits, he commits a breach of the condition of his bond.</p>

<p>This was an action of debt to recover back interest alleged to have been usuriously paid by the plaintiff to the defendant. The declaration was as follows: “ For that heretofore, to wit, on the 12th day of April 1838, the said plaintiff, at Haverhill, in said county, borrowed and received from said defendant, for the sole use and accommodation of him the said plaintiff, the sum of $350, for which the said plaintiff, on the said 12th day of April in the said year of 1838, with one Horace S. Brad’ey and one Alfred Kittredge, gave to the said defendant a certain promissory note by them signed, by which they the said Brickett, Bradley, and Kittredge, for value received, jointly and severally promised to pay to the said defendant, or his order, the said sum of $350, on demand with interest; and the said plaintiff avers, that on the 19th day of July 1839 he paid to said defendant the legal interest upon said note for one year, to wit, upon said sum of $350, from the 12th day of the said April in the year 1838 to the 12th day of April in the year 1839 ; and also the interest upon said interest for one year from the time when the said year expired till the time of payment, to wit, from said 12th day of April in the year 1839 to said 19th day of July in the year 1839 ; and the said plaintiff further avers, that on the 1st day of November in the said year 1839, he the said Brickett paid to the said Minot, the defendant, the sum of $' 100 upon the said note, and thereafter, to wit, on the 24th day of August 1840, there was justly due and owing from said plaintiff to said defendant, upon the said note, a balance of the principal of the said note, to wit, the sum of $261-67, and legal interest upon said balance of $261-67, from the said 1st day of November in said year 1839 to said 24th day of August in said year 1840; and the plaintiff avers that on said 24th day of August in the year 1840, at said Haverhill, he paid to the said defendant the said sum of $261-67, said balance of said principal upon said note, and the further sum of $37-45 as interest upon said balance of said principal, to wit, upon the sum of $261-67 from said 1st day of November in said year 1839 to said 24th day of August in said year 1840 : and the said plaintiff avers that the said sum of $37-45, so paid as interest on said sum of $261-67 from said 1st day of November in said year 1839, to said 24th day of August in said year 1840, was at a greater rate of interest than at the rate of $6 on $100 for one year; and that the said sum of $37-45, so paid as interest, was so paid by the said plaintiff, and received by the said defendant, usuriouslv- and with the intent, on the part of the said plaintiff to pay, with the intent on the part of the said defendant to receive, greater rate of interest than is allowed by law, and contrary i the form of the statute of this Commonwealth, concerning the in terest of money ; whereby, and by force of the said statute, an action has accrued to the said plaintiff to sue the said defendant, and to recover back three fold the amount so paid by said plaintiff to said defendant, to wit, three fold the amount of $37-45, to wit, the sum of $111-35 ; yet though requested,” &c.</p> <p>At the trial in the court of common pleas, on the general issue, the plaintiff, to maintain the issue on his part, offered himself as a witness to prove the agreement to pay and the payment of usurious interest, as alleged in his declaration. The defendant objected, that the plaintiff was not a competent witness, unless the defendant first offered himself as a witness. This objection was overruled, and the plaintiff testified as follows : “ On the 12th of April 1838, I signed a note, with Horace S. Bradley and A1 fred Kittredge as sureties, for $350, which I gave to the defendant, on that day, for that sum then lent to me. The first payment made on this note was on the 19th of July 1839, of one year’s interest to April 12th 1839, and 35 cents as interest on interest from April 12th to July 19th. The next payment was made, November 1st 1839, of $100. I considered it as principal. There was nothing said about it at the time. It was indorsed generally on the note. On the 22d of November 1839, the defendant called on me for payment of the balance due on the note. I told him I could not pay it. He then said I must pay him two per cent, a month, to begin from the 22d of October previous. I told him I would pay it to him for six months. On the 22d of April 1840, he called on me for payment of the principal and interest. I did not then pay him ; but, on the 24th of August 1840,1 paid him, as principal and interest, $299-12 ; ” which included two per cent, a month from October 22d 1839 to August 22d 1840. “ This was the only payment I made after the agreement of November 22d 1839. I had never paid him any extra interest before that time.”</p> <p>The defendant objected, that this testimony did not support the declaration, but that there was a variance, in several particulars, between the allegations and the proof. The court overruled this objection, and the jury returned a verdict for the plaintiff. The defendant thereupon alleged exceptions to the several rulings of the court.</p> <p>The argument was had at the last November term.</p>

<p>This was a petition for partition of two acres of land in Lynn, of which Edward R. Weston and Elizabeth his wife, in her right, Antoinette Witt, Thomas F. Witt, Seabury T. Witt and Ann H. Witt, alleged that they were seized of five eighths, as tenants in common with Susan Foster, Holten Johnson and Margaret his wife, in her right, James Alley and Abigail his wife, in her right, and the Eastern Rail Road Company.</p> <p>The facts agreed on by the parties were as follows: The petitioners are children of Thomas Witt. Susan Foster and Abigail Alley are the daughters of Benjamin R. Witt; and Margaret Johnson is the daughter of Henry Witt. Said Benjamin R. and Henry Witt are sons of Benjamin Witt, deceased. The Eastern Rail Road Company have laid out and constructed their road across the land of which partition is sought.</p> <p>The petitioners claim under the said Benjamin Witt, who died in 1820, leaving a will which has been duly proved and allowed, in which he devised all his real estate, after payment of his debts, to his wife for life, and after her decease, one tenth part thereof in fee to each of the following persons, viz., his son Benjamin Witt, his daughters Abigail Alley, Mary Gifford, Sally "Newhall, Betsey Alley, the children of his son Daniel R. Witt, the children of his son Thomas Witt, the children of his son Henry Witt, the children of his deceased daughter Lydia Haskell; and to his son John Witt, “ one tenth part, to have and to hold to him, for and during his natural life, if he shall continue to live unmarried; but if said John shall at any time marry and have children, then to him, his heirs and assigns forever; and if said John shall die unmarried and without children, then my will is, that the same be equally divided between the children of my sons, Daniel R. Witt, Thomas Witt and Henry Witt, to have and to hold to them, their heirs and assigns forever.”</p> <p>Before the filing of this petition, all the estate devised by said will had been divided among the devisees in fee, except the portion in which John Witt had a life estate.</p> <p>The said John Witt died in August 1841, unmarried and without children.</p> <p>At the time of the testator’s death, viz. November 29th 1820, his son Daniel R. had two children, viz. Susan and Abigail, two of the respondents ; his son Henry had three children, viz. Henry, jr., Elizabeth, and Margaret, who is one of the respondents ; his son Thomas had five children, viz. Elizabeth, Antoinette, Thomas F. and Seabury T., four of the petitioners, and George D., who died unmarried and without children, during the life of said John Witt. At the time of the death of said John Witt, his brother Thomas had another child, viz. Ann, one of the petitioners, who was born about one month after the death of the testator. Said Thomas also had a daughter Juliette, born in 1823, who died in 1824. Two of the children of said Henry Witt, viz. the aforesaid Henry, jr. and Elizabeth, died unmarried and without children, during the life time of said John Witt. Neither Daniel R. Witt nor Henry Witt had any child born after the testator died. The said Daniel R. Witt, Thomas Witt and Henry Witt, are all living.</p> <p>The parties admitted, if the testimony were competent or admissible, that the testator, after making his will, stated that he had devised estate to the children of his sons Daniel R., Henry and Thomas, on account of the pecuniary embarrassment of his said sons; and that, in respect to the devise to his son John, he intended that it should go to the benefit of his said sons Daniel R., Henry and Thomas, in the same manner as the rest of his estate</p> <p>On the foregoing facts the parties submitted to the court to - decide what proportion of the premises the petitioners are entitled to. The parties also agreed that the name of the Eastern Rail Road Company might be stricken from the petition, if said company ought not to have been made a party thereto.</p>

This was a bill in equity, in which it was alleged that Betsey Varney, late of Salem, by her last will, which had been duly proved and allowed, devised and bequeathed to the plaintiff certain real estate, a promissory note, and $400 in money, upon the trust and confidence that he should permit Stephen Varney, a brother of said Betsey, to occupy said real estate, and receive the income thereof, and also the interest of said note, during his life, and that the plaintiff should…

<p>In an indictment against the defendant, the several counts were in this form : “ That said Kimball, on the 1st day of September 1842, at Haverhill, in said county of Essex, he not being then and there first licensed as a retailer of wine and spirits, as provided in the forty seventh chapter of the revised statutes of said Commonwealth, did presume to be, and was, a retailer of wine, brandy, rum and spiritous liquors to one ” [here naming the person] “ in a less quantity than twenty eight gallons, and that delivered and carried away all at one time; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>At the trial in the court of common pleas, the clerk of the county commissioners was called as a witness to show that the defendant was not licensed pursuant to the Rev. Sts. c. 47, and testified as follows: “ I am acting clerk of the county commissioners for Essex. I have the book in which I have made a certificate that no licenses were granted in 1842. I have just made that certificate. This is made from the docket, which is partly in my hand writing, and partly in the hand writing of Mr. Lambert, who acted as clerk of the commissioners two or three days of the April term 1842. While he thus acted, he kept the docket. There is no attestation by him or any other person. The general record of the doings of the commissioners in April is not here, and is not made up. I cannot say certainly that the record of licenses is contained in that book, but think it is. My docket would not show all the oral motions which were made What was done by the commissioners at the April term 1842, when Mr. Lambert acted as clerk, I do not know.”</p> <p>This was all the evidence on the point. It was objected by the defendant, that this was not competent nor sufficient evidence of his want of a license; but the court ruled that it was competent evidence, from which the jury would be authorized to find that the defendant was not licensed in pursuance of the Rev. Sts. c. 47.</p> <p>The defendant requested the court to rule that the indictment . was uncertain, vague and wholly insufficient to sustain a conviction, and to direct the jury so to consider it; but the court ruled that the indictment was sufficient and certain in law, and refused to direct the jury as requested. The defendant was found guilty by the jury, and alleged exceptions to the rulings of the court.</p>

<p>An allegation in an indictment, that the defendant, without being licensed according to law, sold spiritous liquors to A., is proved by evidence that A. bought the liquors of the defendant for B., at B/s request and with his money, without disclosing that fact to the defendant.</p>

<p>A. bought land of B. under a parol agreement; built a house thereon; occupied part of it, and leased the other part: B. mortgaged the land to C., with the knowledge and consent of A., and C. brought a writ of entry against A. and B. and A.’s lessee: A. disclaimed all title to the demanded premises, except the house: C. discontinued against B. and took a conditional judgment against A.’s lessee only; and on the writ of habere facias, which issued on that judgment, A. was removed from the house: After A.’s death, his widow and children took possession of the house, and C. brought a writ of entry against them: Held, that A.’s disclaimer, in the Former action, was conclusive against their right to compensation, under the Rev. Sts. c. 101, $ 19, for improvements made by him on the demanded premises. Held also, that they did not hold possession under a title which they had reason to believe good, and were therefore not entitled, under § 20 of that chapter, to compensation for improvements made by him.</p>

The parties in this case, on the 21st of February 1843, entered into an agreement, in the manner prescribed by the Rev. Sts. c. 114, § 2, to refer certain specified demands, respectively made the one against the other, to the determination of three arbitrators named.

<p>An attachment made while the insolvent law of 1838, c. 163, was suspended by St 1842. c. 71, is dissolved by an assignment of the debtor’s property, made under the former statute since it went again into operation by the repeal of the United States bankrupt act of 1841.</p>

<p>The heirs of an owner of real estate, which was bounded in part by a sea beach, divided the estate by deed, and assigned to some of them parcels of land bounded by the beach, and to the others different parcels: The deeds assigning the li.tter parcels granted the privilege of getting sea weed from the beach below the lands granted by the deeds of the former parcels. Held, that this was a grant of an incorporeal hereditament appurtenant to the land to which it was annexed, and not a right in gross 5 and that it could not be severed and-sold separate from that land 5 and that the sale of the right to a stranger would either be void, or would extinguish the right Held also, that the owner of the privilege was not bound to use the sea weed on the land to which the privilege was annexed, but might use it on his other land, or dispose of it to other persons, or lease his share of the privilege while he should continue to be owner of the land to which it was annexed. Held farther, that the grantees of the privilege were not affected by the gradual shifting of the boundaries of the beach, by the action of the sea, but were entitled to take sea weed from the beach, wherever the beach might be, below the land conveyed as bounding on it.</p>

This was a proceeding upon a petition for a jury to assess damages, alleged to have been sustained by the petitioner by the laying out of a road over his land in Danvers. A warrant was issued to the sheriff, by the county commissioners, requiring him to summon and empannel a jury for said purpose, and the sheriff did so. The jury gave a verdict for the petitioner, whic! was returned to the court of common pleas.

<p>Assumpsit to recover $ 94-50, and interest from the 15th of March 1842. The case was submitted to the court on the following facts agreed:</p> <p>“ Jacob B. Ford purchased 100 pounds of ivory for the plaintiff, on the coast of Africa; and on his return to Salem, where the plaintiff and defendant both resided, left this and other ivory in the defendant’s hands, and took from him a receipt for the plaintiff’s part thereof, in which receipt the defendant promised to sell the same for the plaintiff, and account therefor when sold Ford immediately informed the plaintiff where the ivory was deposited, gave him said receipt, and had no subsequent charge of the sale of the ivory. The defendant afterwards sold the ivory, and obtained for it, after deducting commissions, &c., $94-50, which was the amount to which the plaintiff was entitled on said 15th of March 1842.</p> <p>“ Before the ivory was sold, the plaintiff went to sea ; and after it was sold, viz. on the 23d of February 1842, Ford went to the defendant, to take out of the proceeds of the sale the amount that would be due to him as commission on the purchase of the ivory; and the defendant paid it to him. Ford, at the same time, of his own accord, without any authority from the plaintiff, took from the defendant a check for $ 94-50, the balance in the defendant’s hands belonging to the plaintiff, and delivered the check to the plaintiff’s wife, payable to the plaintiff on the 15th of March 1842. The plaintiff did not return from sea, nor know any thing of this transaction, till after said 15th of March, and after the defendant’s proceedings in bankruptcy, as herein after named. Said check was drawn by the defendant on the Naumkeag Bank, in which he had no funds, and had made no provision for funds, when it was drawn. It was duly presented for payment by the plaintiff’s wife, or some one for her, but was not honored, for want of funds; and neither the check, nor the $94-50 has been paid, though payment of the said sum was requested before the commencement of this action. a The check was never accepted nor acted upon by the plaintiff in any way.</p> <p>“ The defendant entered a petition in bankruptcy, under the bankrupt law of the United States, on the 18th of June 1842 ; was afterwards declared bankrupt; and on the 9th of January 1843 received his discharge under said bankrupt law. The plaintiff has never proved the above matter against the defendant’s estate, nor in any way made himself a party to said bankrupt proceedings.”</p>

<p>Writ of entry to foreclose a mortgage of lands in Middleton, made to the demandant by Jesse Perkins on the 6th of April 1839. The parties submitted the case to the court on the following agreed statement:</p> <p>The title of Jesse Perkins, the mortgagor, to the mortgaged premises, was under the last will of Jacob Perkins, which was duly proved and allowed, and was thus: “ As touching such worldly estate as it hath pleased God to bless me with, I dispose of it in the following manner: 1. I give and bequeath to my sisters, Lucy Perkins and Lois Perkins, the use and profit and benefit of my whole real estate, for the term of their natural lives, except such parts thereof as are specially disposed of hereafter. 2. I give and bequeath to my nephew, Jesse Perkins,” (the mortgagor) “ all my real and personal estate, to come into possession at the decease of the aforesaid Lucy and Lois, with the privilege to let the farm annually, and sell my hill pasture (called Ten Acres) with my stock, tools, hay, &c.; with the income of the farm; to pay my just debts, if the income of the farm should be any thing more than a comfortable support for my aforesaid sis ters ; the aforesaid privileges to come into possession at my decease ; the said Jesse to come into possession of the whole estate at the decease of the aforesaid Lucy and Lois. 3. But if the said Jesse Perkins shall neglect to provide for the said Lucy and Lois a comfortable support in sickness and in health, during their natural lives, then the said Lucy and Lois to have the improvement of the farm during their natural lives. 4. I give to my brother Oliver Perkins five dollars: 5. I give to my brother Moses Perkins five dollars. 6. I hereby appoint the said Jesse Perkins sole executor of this my last will and testament, enjoining it on him to pay all my just debts, and the aforesaid legacies, in one year from my decease.”</p> <p>The said Lucy Perkins and Lois Perkins were supported by said Jesse Perkins, during the'r joint lives, agreeably to the provisions of said will. Said Lois died on the 20th of August 1842, and said Jesse died on the 20th of February 1843. After the death of said Lois, and until the death of said Jesse, said Lucy was supported by him. Said Jesse came into the actual possession of said estate on the decease of said testator, viz. on the 18th of January 1834, and continued in possession until his death. Said Lucy and Lois resided in the house that belonged to the testator, and were supported therein, by said Jesse, during their joint lives; and said Lucy was supported therein, after the decease of said Lois, by said Jesse, who occupied a part of the same house. After the death of said Jesse, his widow, who was administratrix of his estate, offered to continue to furnish the necessary supplies for the comfortable support of said Lucy, in the same manner in which they had before been furnished, and is still ready to furnish them.</p> <p>Said Jesse paid the testator’s debts, amounting to about $700. The whole real estate of the testator is included in the mortgage deed made to the demandant by said Jesse, except a parcel of peat meadow. The testator’s heirs at law were two brothers, and the said Lucy and Lois, his two sisters. The said Jesse was a son of one of the testator’s brothers.</p>

The city of Boston, being summoned as trustee of Blake, the principal defendant, made answer, by R. D. Harris, city treasurer, to the following effect: That the said Blake, at the time of the service of the process in this case, viz. on the 1st of January 1842, was in the employ of the city, as the city marshal; that his salary was $ 1000 a year, payable quarterly; and that there was due to him from the city, on that day, the sum of $ 250, he having received, on the 1st of…

<p>This was a petition by the receivers of the Phoenix Bank, appointed under the provisions of St. 1838, c. 14, praying that the Hamilton Bank might be enjoined and restrained from further prosecuting a certain suit at law against said Phoenix Bank; and that the attachment made in that suit might be dissolved and declared void, &c.</p> <p>The Phoenix Bank stopped payment on the 3d of October 1842; and afterwards, on the same day, the respondents com menced an action against said bank, and caused an attachment to be made of its real and personal estate. This action was entered in the court of common pleas in Suffolk county, at March term 1843, and was pending when the present petition was filed. On the 6th of October 1842, one of the justices of the supreme judicial court issued an injunction, on the application of the bank commissioners njade on that day, to restrain said bank from further proceeding with its business, until a hearing could be h&d. After a hearing of said bank, viz. on the 18th of October 1842, the supreme judicial court made the injunction perpetual, and appointed the petitioners to be receivers to take possession of the property and effects of said bank. See St. 1838, c. 14, <§> 5.</p> <p>The respondents submitted themselves to the jurisdiction of the court, but denied that they ought to be enjcined and restrained from prosecuting their said suit against the Phoenix Bank, or that their said attachment ought to be dissolved and declared void.</p> <p>This case was argued in June 1843.</p>

<p>These were appeals, taken from the decision of Joseph Willard, Esq., a master in chancery, by the assignees, under St. 1838, c. 163, of Robert Rogerson, an insolvent debtor. The master allowed the respective appellees to prove certain claims, hereinafter stated, as debts against said Rogerson.</p> <p>The following statement was agreed upon by the parties: “ The claim of Thomas Thacher and another arose under a draft of said Rogerson for $3986-05, dated at Boston March 6th. 1837, and payable in six months from the 27th of March 1837, and also under a note of said Rogerson, for $2291-85, dated at Boston March 20th 1837, and payable on demand. The claim of said Manufacturers Insurance Company was upon a note of said Rogerson for $ 1500, dated at Boston July 8th 1833, and payable in six months from date. The claim of said Cartwright was on a note of said Rogerson for $20,000, dated at Boston June 12th 1838, and payable on demand.</p> <p>“ All said claims are just and due, and are proveable against the estate of said Rogerson, unless the facts hereinafter stated, which are admissible in evidence, constitute a sufficient bar to or discharge thereof.</p> <p>“ Said Insurance Company has, and always has had, its usual place of business in Boston, and is incorporated under the laws of the Commonwealth. Said Rogerson and said other appellees have, ever since the year 1830, resided in and been citizens of this Commonwealth.</p> <p>“ The original warrant to take possession of said Rogerson’s property under St. 1838, c. 163, was issued by said master on the 5th of December 1839, and due notice thereof was given The first meeting of the creditors was held December 18th 1839; the second was held December 30th 1839; the third was held June 16th 1840 ; the fourth was held June 3d 1841 ; and the fifth was held December 12th 1842, and was" continued by adjournments to February 3d 1843. Said Rogerson was duly discharged under said statute, at said second meeting. On the 3d of February 1842, he petitioned the district court of the United States for the district of Massachusetts, to be declared bankrupt under the bankrupt act of the United States, passed August 19th 1841; and in pursuance thereof was decreed bankrupt on the 22d of March 1842, and was duly discharged by said court, under said bankrupt law, July 30th 1842.</p> <p>“The claims of said appellees were not presented to said master for proof until said fifth meeting; but said Insurance Company, and said Cartwright, surrendered to said assignees (the appellants) certain collateral security held by them, and filed their said notes with the clerk in the matter of said Rogerson’s insolvency, after said fourth meeting, and before said Rogerson petitioned as above to be declared bankrupt, to wit, on the 19th of October 1841, declaring, at the same time, their intention of proving the same. At the time when the foregoing claims were presented for proof, there were assets in the hands of the assignees, (the appellants,) but no dividend had been declared.”</p>

<p>Trover for a ton of brass wire. Trial before Wilde, J., from whose report of the case it appeared that the evidence, so far as it related to the points hereinafter discussed, was as follows:</p> <p>The plaintiff produced a mortgage, by indenture, of divers chattels, including “ one ton brass wire,” made to him by William Bartlett, on the 29th day of December 1834, and recorded on the same day, to secure payment of a note of the same date, given to the' plaintiff by said Bartlett, for $711, payable in two years. This mortgage contained the following words: “ To have and to hold the same ” (the articles specified in the mortgage) “and every part thereof to the said Barry, his heirs, executors, administrators, and assigns forever, to his and their sole use and behoof, subject to a mortgage bearing date the 24th of July 1834, and given to William Rider for the further securty o( two promissory notes, one payable in three months, and one payable in four months from the above date.”</p> <p>The court permitted the plaintiff (the defendant objecting) to give evidence tending to show that the wire in question was not embraced in the mortgage to Rider ; and for this purpose the plaintiff gave in evidence, on this point, a record copy of that mortgage, by which it appeared that said Bartlett therein transferred to Rider “ the goods, wares, chattels and merchandize specified or described in the schedule hereunto annexed, and marked A.; ” and that no schedule was recorded. The plaintiff also gave in evidence a record copy of an assignment of said mortgage, by Rider, to George Adams, dated August 22d 1834, and recorded on the same day, which referred to the schedule A., as annexed, and, after the seal and signature of the assignor, (Rider,) purported to set forth “ schedule A., referred to in the annexed indenture,” which schedule did not contain said wire. The plaintiff also put in a record copy of an assignment of said mortgage, by said Adams, to Benjamin M. Nevers, dated March 5th 1835, and recorded on the same day.</p> <p>There was evidence tending to prove that said Bartlett, when he made said mortgage to the plaintiff, had only one lot of wire; that the wire was then in the loft of a factory in Arnold Street; that part of it was English and part of it American wire — the former worth thirty four cents and the latter twenty six cents per pound; that the plaintiff, a day or two after the mortgage was made, went to said factory, and that Bartlett then pointed out to him the wire and other articles mentioned in said schedule A.: That there was no weighing or separating of any part of the wire: That Bartlett, on the 18th of February 1835, pledged or sold said wire to the defendant, and gave him a bill thereof, stating it to be 2662 pounds ; that the wire, on the next day, was removed to a store on the City Wharf; that the defendant sold 546 pounds of the same wire on the 21st of March 1835, and 2116 pounds (being the balance of the quantity purporting to be contained in Bartlett’s bill to him) on the 4th of May 1835.</p> <p>The testimony of witnesses showed that a ton of wire, in commerce, means two thousand pounds.</p> <p>There was evidence tending to prove that said factory in Arnold Street was burnt in April 1835, and that Bartlett recovered judgment against an insurance company for the loss which he thereby sustained, and that the notes which were secured by the aforesaid mortgage to Rider were paid out of the proceeds of said judgment.</p> <p>The plaintiff gave evidence of having made a demand on the defendant for said wire on the 5th of February 1840.</p> <p>The deposition of said Bartlett was taken by the defendant, and was read at the trial. The 20th cross-interrogatory, put to Bartlett by the plaintiff, was this: “ Did you not sell or pledge the wire to Bennett for the purpose of raising money ? And what per centage did you give him for his money ? Did you not give, or have you not told others that you gave, one fourth of one per cent, a day for the money then lent you on the pledge of said wire ? ” The deponent’s answer was, “ I did pledge said wire for the purpose of raising money, and I was charged at the rate of one quarter per cent, per day ; "but I would not and did not pay this. And though he, Bennett, retained that amount for a while, I recovered back, by instituting a suit against him, (which never came to trial,) so much as left the interest which he received for compensation about the usual legal rate of six per cent.” &c.</p> <p>The plaintiff objected to this interrogatory when it was filed, and also objected to the reading thereof, and of the answer thereto, to the jury ; but the court permitted them to be read.</p> <p>The court instructed the jury, that the mortgage to Rider was not to be deemed and taken to have become absolute, and that the plaintiff was not, for this cause, to be prevented from sustaining his action. Upon the evidence, the court recommended to the jury to return a special verdict on the point whether the quantity of wire in the loft aforesaid was more than a ton; and also suggested to them that they might find whether the parties to the plaintiff’s mortgage did not intend that the whole lot should be embraced in said mortgage. The court further instructed the jury, that the measure of damages would be the value of the wire, with interest from the time of the purchase by the defendant to the time of the verdict.</p> <p>The verdict returned by the jury was as follows : “ The jury find that the wire was not included in the mortgage to Rider. That this was waived, if it was so included. That the quantity deposited was more than a ton. That the word ton was meant to apply to the mass of wire, greater or less. That William Barry did not know of, consent to, or acquiesce in, the disposition of the wire. The jury find that the defendant is guilty, in manner and form as the plaintiff has thereof declared against him, and assess damages for $473, with interest to 18th February 1835, amounting in the whole to $696-49.”</p> <p>The court to enter such judgment as the law requires, or to grant a new trial-.</p>

<p>This was a bill in equity, in which it was prayed that Ozias Goodwin, one of the defendants, might be decreed to render an account of certain property, real and personal, in his hands as trustee under the last will of John Bray, deceased, and to convey to the plaintiff three undivided ninths of one seventh part of said property. As the ground of this prayer, the bill contained the following statements:</p> <p>That said Bray, by his will made in August 1828, and proved and allowed in September 1829, gave all his real and personal property (after payment of his debts and of certain legacies)- to Matthias Crocker and James Loring, in trust, to hold and manage the same during the life of said testator’s wife, Sarah Bray, provided she should continue to be a widow, and to pay to her the rent and income thereof, during her life or widowhood, for her own use; but if she should marry, then she should have such portion of his estate as she would have been entitled to if he had made no will; and on the further trust, thus expressed in said will: “ A fter the decease or marriage of said Sarah, to cause all the said rest and residue of my estate to be divided into seven equal parts, and to convey, assign and make over one of said seven parts to each of my daughters, Abigail, Elizabeth, Charlotte, Louisa and Augusta, and to their respective heirs, and to hold in trust one seventh part of said rest and residue to the sole and separate use of my daughter, Sarah Spear Winslow, free from all control, claim or demand of her present husband, Mr. John Winslow,” (the plaintiff,) “or any creditor of said John ; and from and immediately after his decease, to convey, assign and make over unto said Sarah Spear Winslow the same seventh part, to have and hold the same to her and her heirs. But if she shall die in the life time of her said husband, then to hold said seventh part in trust for her children, or so much thereof as may remain, if any part thereof shall have been applied to their mother’s support and maintenance: And my said trustees are hereby authorized and empowered to use and apply so much of said seventh, as they may think necessary and proper, for the reasonable support of said daughter Sarah, during the life time of her said husband, from time to time; and if said Sarah shall decease in the life time of her husband, such of her children as may then be of full age are to receive their respective shares of said seventh, or of what may remain thereof; and as to the parts of such children of said Sarah as may then be minors, my trus tees are authorized and empowered to apply and use so much of each one’s share, for his or her support and education, as said trustees may think necessary, and to pay over and convey to them the residue, if any, of his or her share respectively, on coming to full age.”</p> <p>That said testator, after disposing of the other seventh of the residue of his property, by said will, added thereto the following clauses : “ My will is, that no charge or claim be made against my daughter, Sarah Spear Winslow, for money, goods or property, by me advanced or supplied to her, and that no deduction be made from her seventh, on account thereof, nor on account of any debts due to me from Mr. Winslow, her husband.” “ I authorize, request and empower the judge of probate for the time being, in case either of the trustees shall decease before this trust is executed, to appoint another trustee in his place, and to renew said trusteeship from time to time; and any trustee or trustees so appointed are to be constituted such by all proper conveyances and instruments, as though originally appointed by me; and my trustees are to receive such reasonable compensation as the judge of probate may think proper. I revoke all former wills, and appoint said Crocker and Loring executors hereof.”</p> <p>That said Crocker declined to accept the trusts given him by the will; that said Loring accepted the same and gave bond ; but that he resigned his trusts in January 1837, when the defendant Goodwin was appointed trustee under the will, and received personal property amounting to $ 16,221, and real property of the value of $14,000, to hold upon the trusts expressed in the will; that said property, or the proceeds of it, still remained in the hands of said Goodwin, as such trustee, and that he had collected the rents, income and profits of it.</p> <p>That said Sarah Bray died in 1839, and that said Sarah Spear Winslow, wife of the plaintiff, died in October 1841, having had nine children by him, viz. John, William H., Charles E., Horatio B., Ozias G , Sarah A., George C., Andrew G. (still a minor) and Caroline L.: That three of these children, viz. William H., Charles E. and Horatio B., died before their mother: That William H. died in October 1833, aged 23 years, intestate, without issue; Charles E. died May 23d 1837, aged 25 years, intestate leaving a child, Charles H., and a widow, Marianne, who has since married T. Pinkerton; Horatio B. died November 1st 1840, intestate, unmarried and without issue, aged 22 years: That the plaintiff had been appointed administrator of the estates of said William H. and Horatio B.; and that no administration bad been taken on the estate of said Charles E.: That ihree others of said nine children, viz. Ozias G., Sarah A. and Caroline L., died after their mother: That Ozias G. died December 3d 1842, leaving issue surviving him, viz. Nathan F. and Caroline L., both minors; and also a widow, Julia, who has been appointed administratrix of his estate: That Sarah A. died July 23d 1842, leaving a will, of which the aforesaid George C. is executor: That Caroline L., daughter of the plaintiff, died December 24th 1841, under age, without issue, and unmarried, and that the plaintiff was appointed her administrator on the 21st of November 1842.</p> <p>That on the death of said John Bray, (the testator,) each of the nine children of the plaintiff, and Sarah Spear Winslow, his wife, became entitled, under said will, to one ninth of one seventh part of the testator’s property, real and personal, subject to the trust estate for the life of his widow and the life of the plaintiff’s wife, and upon the contingency of the plaintiff’s surviving his wife; and that, on the death of said William H. and Horatio B., their right to two ninths of one seventh of said real estate vested in the plaintiff, as their heir, and their right to two ninths of one seventh of said personal estate vested in him, as their administrator ; and that, on the death of said Caroline L., one ninth of one seventh part of said real estate descended to the plaintiff, as her heir, and that he became entitled to one ninth of one seventh of said personal property, as her administrator.</p> <p>That on the death of Sarah Spear Winslow, the plaintiff’s wife, it became the duty of said Goodwin, as trustee, to convey to the plaintiff, as heir of said William H. and Horatio B., two ninths of one seventh of said real property in his hands, and that it has since become his duty to pay and convey to the plaintiff two ninths of one seventh of said personal property in his hands; and that, on the death of said Caroline L., it became his duty to convey to the plaintiff, as her heii, one ninth of one seventh of said real property in his hands, and has since become his duty to pay and convey to the plaintiff, as her administrator, one ninth of one seventh of said personal property : All which the said Goodwin has refused to do, though often thereto requested by the plaintiff.</p> <p>All the surviving children of said Sarah Spear Winslow, all the children of her deceased children, the administratrix of her son Ozias G., Marianne, formerly wife of said Sarah’s son Charles E., deceased, and T. Pinkerton, the present husband of said Marianne, were made parties to the bill, as defendants. Goodwin and all the other defendants, except three, demurred to the bill. The other three defendants put in an answer, admitting the facts alleged in the bill, and submitting to the decision of the court thereon.</p>

This was an action of assumpsit, commenced at the October term of the court of common pleas, 1841. The declaration originally contained three counts; the first for money had and received, and the second on an account annexed, for goods sold and delivered, and for board.

<p>Writ of entry to recover lands in Boston.</p> <p>At the trial, the demandant produced a deed from Amos Sumner, dated June 7th 1823, duly executed and recorded, by virtue of which, it was admitted by the tenants, he became seized and possessed of the demanded premises, and continued so seized and possessed until the 10th of May 1836.</p> <p>The tenants, to maintain their title to the demanded premises, showed that they were heirs of Nancy Edwards, and pro duced the deed of William T. Spear, dated Ma^ 10th 1836, executed in due form and recorded, wherein said Spear conveyed said premises to said Nancy, reciting therein that he conveyed the same as probate guardian of Davison, the demandant, by virtue of a resolve of the legislature of this Commonwealth, passed on the 16th of April 1836. A copy of the resolve was annexed to said deed, and was as follows: “ Resolved, that William T. Spear, guardian of the person and estate of Andrew C. Davison, an insane person, is hereby authorized to sell the real estate of said Davison, situate in Pleasant Street, in the city of Boston, and appropriate the proceeds to the payment of incumbrances upon another estate of said Davison, situate in Washington Street in said Boston: Provided, however, that said Spear shall, before said sale, file in the probate office of the county of Suffolk a bond, with sureties to the satisfaction of the judge of said court, that the proceeds of said sale shall be first applied to the discharge of all incumbrances on said estate in Washington Street, and then to the benefit of said ward, and be accounted for according to law.”</p> <p>The tenants also showed that said Spear filed a bond, which was approved, as required by the resolve. And to show that he was duly appointed guardian of said Davison, the tenants produced the records of tne proceedings of the court of probate for said county, and the proceedings of the mayor and aldermen of the city of Boston; viz. the representation of Nathaniel Dear-born, made to said court October 28th 1833, that said Davison was a person non compos mentis, and incapable to take care of himself,” and a request that inquisition thereof should be made and a guardian appointed; a decree of said court on the same day, that inquisition thereof be made by the mayoi and aider-men of the city of Boston, and that a warrant be issued to them accordingly; a warrant directing inquisition thereof by said mayor and aldermen; an order of said mayor and aldermen, of the same date, that notice be given to said Davison to appear before them on the 4th of November 1833, to show cause, &c., a copy of their record, stating that notice had been served on him and that he did not appear; a return of said warrant to the mayor and aldermen, dated November 11th 1833, in which they “ adjudge that the said Davison is non compos mentis, and incapable of taking care of himself; ” an order, issued by said court on the 18th of November 1833, reciting the result of said inquisition, and directing that an attested copy of said order should be served on said Davison, fourteen days at least before the 9th of December 1833, that he might be present on said day and show cause, if any he had, “ why he should not be considered and adjudged to be a person non compos mentis, ahd liable to be put under guardianship, as such ; ” the return of an officer on said order, that he had given an attested copy thereof to said Davison, in hand, on the 22d of November 1833; also a decree of said court, passed on the 16th of June 1834, adjudging said Davison to be a person non compos mentis, &c., and appointing said Spear to be his guardian^ and a letter of guardianship, of the same date, issued by said court to said Spear.</p> <p>In the decree appointing said Spear to be guardian, the previous proceedings were recited, and that said Davison appeared, on the 9th of December 1833, and objected to the appointment of a guardian over him; “ whereupon, after hearing the evidence adduced by the respective parties, and fully understanding the same, the same was, from the 9th day of December, continued from time to time to this day;” [June 16th 1834 ;] “and now it is considered and adjudged by the court here, that the said Andrew C. Davison is a person non compos mentis, and liable to be put under guardianship as such.”</p> <p>It was proved or admitted, that said Spear received of said Nancy Edwards the price for which he conveyed the demanded premises to her, and that he discharged the incumbrances upon the demandant’s estate in Washington Street, as required by said resolve ; that he rendered his account to the judge of probate, showing how he had applied the money received for the demanded premises; that the said Nancy went into possession, upon receiving her deed, and continued in possession till her death in February 1842; that the said Spear was discharged from his guardianship of the demandant, by a decree of the court of probate, on the 19th of June 1837; and that his probate bond as guardian was put in suit by the demandant, and judgment recovered thereon for a balance of account, amounting to $574-94, and interest and costs, which judgment is still unsatisfied.</p> <p>Upon the foregoing facts appearing, the demandant insisted that it was not shown that he had been duly adjudged to be non compos mentis, nor that said Spear had been duly appointed his guardian. He also insisted that said resolve had no validity, because the legislature had no authority to pass such resolve, and because no previous notice thereof was given to him.</p> <p>The case was taken from the jury, by consent of the parties, and submitted to the court, upon the facts and documents shown in evidence at the trial.</p> <p>At the argument, the demandant’s counsel cited the authorities that are commented upon by the judge who gave the opinion of the court, and 13 Amer. Jurist, 79. 14 ib. 83 & seq. 1 Kent Com. (3d ed.) 455 & seq. Bank of the State v. Cooper, 2 Yerg. 599. Tate v. Bell, 4 Yerg. 202. Also Jones v. Perry, 10 Yerg. 59, where it was decided that an act of the legislature of Tennessee was unconstitutional, which authorized the guardian of minor heirs to sell their land and apply the proceeds to the payment of their ancestor’s debts.</p> <p>The tenants’ counsel relied on Rice v. Parkman, 16 Mass. 326. He also cited other cases referred to in the opinion of the court, and Kibby v. Chitwood, 4 Monr. 91. Shehan v Barnett, 6 Monr. 594. Coleman v. Carr, Walker, 258.</p>

<p>The plaintiff set forth, in a bill in equity, that he was “ seized in his demesne as of fee in reversion of and in a certain warehouse and land in Boston,” bounded on the southeasterly side thereof by land of Sybilla Stodder and others ; that in the southeasterly wall of said warehouse were five ancient windows, which for more than sixty years had been, and still ought to remain, so that light and air might pass freely over the land next adjoining the same into said windows, &c.; that by an indenture of lease, dated December 30th 1841, the plaintiff demised said warehouse to the defendant, to hold for the term of eleven years from the 1st of January 1842; but that in and by said indenture, there was (among others) the following reservation: “ Excepting and reserving unto himself, the said Atkins, his representatives and assigns, the right to stop up and build upon and against the five windows in the said store, which front and look upon or towards Ann Street in said Boston, and also to build against and put timbers into the wall on the side of said store, in which the said five windows are, at his and their pleasure, during said lease : ” That the defendant knew, when said indenture was executed, that such reservation was made, because the plaintiff expected to sell his rights and easements to the owners of the adjoining lands (Sybilla Stodder and others) when they should desire to build thereon ; and that the defendant, when he was negotiating for said lease, offered the plaintiff $ 100 per annum, for eleven years, for the right to obstruct said windows ; but the plaintiff, having been offered a larger sum, did not accede to the defendant’s said offer; and therefore said reservation was made: That after the defendant became possessed of said warehouse, as aforesaid, viz. on the 20th of April 1842, said Sybilla Stodder and others, by indenture of lease between them and the defendant, demised to him the said adjoining land, for the term of fifteen years, and he thereupon entered under said lease, depriving the plaintiff of the benefit of said lights, and obtaining the benefit thereof to himself, without making any compensation to the plaintiff; and that the defendant was about to erect, in contact with the southeasterly wall of said warehouse, a substantial building, three stories high, designed to last a long time and beyond the term of the plaintiff’s lease to him ; thereby shutting out nearly all the light and air from said windows, and thus injuring the plaintiff’s said estate, and diminishing the value of said warehouse and appurtenances, and depriving the plaintiff of his rights reserved by his said lease : That said lease contains the following covenant of the defendant: “ And the said Chilson covenants and agrees with and to the said Atkins, his heirs and assigns, that no alterations or additions shall be made during the term aforesaid, in or to the same, without the consent of the said lessor, or of those having his estate in the premises, being first obtained in writing allowing thereof: ” Yet that the defendant, without any such consent of the plaintiff, has prepared to make material alterations in the premises, by erecting said building and destroying said easements. Wherefore the plaintiff prayed for an injunction and for relief.</p> <p>No injunction was granted upon the filing of the bill, and Chilson erected the building before he made his answer.</p> <p>The defendant Chilson, in his answer, denied that he knew, when he received his lease from the plaintiff containing said reservation, that the plaintiff expected to sell his rights in regard to said windows to the owners of the adjoining land, when they should desire to build thereon ; but averred that he then supposed the object of the reservation was, to prevent controversy between the plaintiff and defendant, if the plaintiff should buy the adjoining land and build thereon. He also denied that he offered the plaintiff any thing for his said rights, after he agreed to hire said warehouse. He averred that he was informed, after he took said lease from the plaintiff, that the owners of the adjoining land were about to let it, and have a stable built on it, and that he hired it for the term of fifteen years from May 1 st 1842, terminable by himself at the end of ten years, to prevent the erection of a stable ; that he had erected thereon such a building as the plaintiff had, in his bill, alleged the defendant was about to erect, so as to cover said windows ; but he denied that said building was an addition to said warehouse or an alteration thereof, or that the windows were ancient windows, or were of any use for the purpose of furnishing light or air to said warehouse, as the same was abundantly supplied with light and air by other windows. He averred that said windows were originally put into a building erected for a dwelling-house; that the plaintiff converted said building into a warehouse, lighted on the north and south by other windows, and covered the windows in question with iron covers; that the defendant, when he entered into said warehouse, placed shelves across said windows, for the purpose of putting his goods thereon; and that the plaintiff, though well knowing that the defendant was so placing said shelves, made no objection thereto.</p> <p>The defendant Chilson further averred, that if the plaintiff had any easement for air and light in said windows, it was only a reversionary interest, after the expiration of said defendant’s lease, and that the plaintiff could not be injured, during the continuance of the lease, by the building erected by said defendant. He also averred that the plaintiff’s estate was increased in value by reason of the erection of said building.</p> <p>Sybilla Stodder and others were made parties to the bill, as defendants, and filed a joint answer which need not be here set forth.</p> <p>Evidence was taken as to the windows being ancient, &c.</p>

Assumpsit on this promissory note, signed by the defendant. “September 14th 1840. Six months from date, for value received, I promise to pay the President, Directors and Company of the Granite Bank, or order, at said bank, the sum of $300, having lodged, as collateral, four shares Phcenix Bank, Charlestown.” At the trial in the court of common pleas, the defendant introduced a letter from the plaintiffs’ cashier, in these words • “ Granite Bank, September 15th 1841.

<p>Assumpsit to recover a reward of $ 1000, offered by the defendants for the apprehension and conviction of incendiaries Writ dated September 30th 1841.</p> <p>At the trial before Wilde, J., the following facts were proved. On the 26th of May 1837, this advertisement was published in the daily papers in Boston: “ $500 reward. The above reward is offered for the apprehension and conviction of any person who shall set fire to any building within the limits of the city. May 26 1837. Samuel A. Eliot, Mayor.” On the 27th of May 183" the following advertisement was published in the same papers: “ $ 1000 reward The frequent and successful repetition of incendiary attempts renders it necessary that the most vigorous efforts should be made to prevent their recurrence. In addition to the other precautions, the reward heretofore offered is doubled. One thousand dollars will be paid by the city for the conviction of any person engaged in these nefarious practices. May 27 1837. Samuel A. Eliot, Mayor.” These advertisements were continued in the papers but about a week; but there was no vote of the city government, or notice by the mayor, revoking the advertisements, or limiting the time during which they should be in force. Similar rewards for the detection of incendiaries had been before offered, and paid on the conviction of the offenders ; and at the time of the trial of this case, a similar reward was daily published in the newspapers.</p> <p>In January 1841, there was an extensive fire on Washington Street, when the Amory House (so called) and several others were burned. The plaintiffs suspected that Samuel Marriott, who then boarded in Boston, was concerned in burning said buildings. Soon after the fire, said Marriott departed for New York. The plaintiffs declared to several persons their intention to pursue him and prosecute him, with the intention of gaining the reward of $ 1000 which had been offered as aforesaid. They pursued said Marriott to New York, carried with them a person to identify him, arrested him, and brought him back to Boston. They then complained of him to the county attorney, obtained other witnesses, procured him to be indicted and prosecuted for setting fire to the said Amory House. And at the March term 1841 of the municipal court, on the apprehension and prosecution cf said Marriott, and on the evidence given and procured by the plaintiffs, he was convict d of setting fire to said house, and sentenced to ten years’ comfnement in the state prison.</p> <p>William Barnicoat, called as a witness by the defendants, testified that he was chief engineer of the fire department in Boston, in 1837, and for several years after; that alarms of fire were frequent before the said advertisement in May 1837 ; but that from that time till the close of the year 1841, there were but few fires in the city.</p> <p>As the only question in the case was, whether said offer of reward continued to be in force when the Amory House was burnt, the case was taken from the jury, by consent of the parties, under an agreement that the defendants should be defaulted, or the plaintiffs become nonsuit, as the full court should decide.</p>

This action, in which the damages were laid at $1500, was entered in the court of common pleas at April term 1842. Foster, the principal defendant, appeared at that term, and the action was placed on the trial list. On the 11th day of said term, said Foster made application to have the action removed to the supreme judicial court, conformably to St. 1840, c. 87, ■§> 3, and the action was removed accordingly on that day.

<p>A testator gave a legacy to “ the Boys' Asylum and Farm School/' there being no insti tution or association of any similar name, except a body incorporated by the name of “the Boston Asylum and Farm School for Indigent Boys.” Held, that this cor poration was entitled to the legacy.</p>

<p>The petition in this case was filed on the 18th of June 1844, and the opinion of the court was delivered on the 22d of said June.</p>

<p>Since the state insolvent law went again into operation by the repeal of the United States bankrupt act of 1841, the creditors of one who was decreed a bankrupt under that act, but whose discharge was refused by the court of the United States, may prove their debts against his estate under that insolvent law. And if they so prove their debts, it seems that they will be barred )>y his discharge under that law. But such discharge will not bar those creditors whose claims arose before the debtor was decreed a bankrupt, unless they voluntarily prove them according to the provisions of the insolvent law.</p>

<p>Under St. 1838, c. 163, the second meeting of the creditors of an insolvent debtor may be adjourned from day to day, and they may prove their debts and transact other business at any such adjourned meeting, with the same effect as at the original meeting.</p> <p>In order to prevent an insolvent debtor from receiving his certificate of discharge, under St. 1838, c. 163, § 7, it was not sufficient that one half, in number or value, of his creditors, who had proved their debts on or before the first day of their second meeting, should signify their dissent and objection to the granting of such certificate. The debtor was entitled to such certificate, unless dissent and objection were signified by one half, in number or value, of his creditors who had proved their debts at any time before the second meeting was dissolved.</p>

<p>This was a petition, praying the court to order the respondent, who held the property of Samuel Knower, an insolvent debtor, under an assignment thereof, to permit the petitioner to become a party to that assignment.</p> <p>The petitioner alleged that said Knower, on the 20th of April 1837, made an assignment to the respondent of all his goods and estate, conformably to St. 1836, c. 238, for the benefit of such of his creditors as should become parties thereto: That said Knower gave to the petitioner, on the 2d of March 1836, one promissory note for $200, payable on demand, and on the 8th of April 1837, another note or due bill for $ 100, payable on demand; and that said notes were in the petitioner’s hands, without indorsement of any payment thereon : That after the date of the first of said notes, and before the expiration of six years from the date thereof, said Knower and the petitioner met together before Joseph Stratton, and in his presence the said Knower acknowledged that he made said note and that it was then due; and said Stratton then affixed his name to said note, thus: “ Witness, Joseph Stratton : ” That said Knower, soon after the original making of said notes, viz. in the summer of 1837, left this Commonwealth for the purpose of residing in another State, and has ever since permanently resided out of the Commonwealth, and has been within it, since the making of said notes, but a very small portion of the period of six years : That no dividend had been declared under said Knower’s assignment aforesaid; and that the petitioner had applied to the respondent for permission to become a party to said assignment, and had exhibited said notes to him, and informed him of the circumstances aforesaid; but that the respondent, alleging that no part of said notes is due, by reason of lapse of time, declined to permit the petitioner to become a party to said assignment.</p> <p>The respondent filed an answer, the substance of which is stated in the opinion of the court.</p> <p>Evidence was given by the petitioner, in proof of his allegations as to the attestation of the first of the notes mentioned in his petition.</p>

Assumpsit on the special agreement set forth in the margin.* There was also a general indebitatus count for money had and received. Held: returned empty; and that no oysters had since been taken by the plaintiffs. There was much evidence tending to show that there were, in said town, oysters to which the plaintiffs were entitled by the terms of their said contract, and which might have been taken without injury to the fishery.

Assumpsit on a policy of insurance, dated September 19th 1837, upon the brig George, at and from Salem to port or ports of discharge and lading in Brazil, not south of Rio Janeiro, and at and from thence to her port of destination in the United States. The brig was valued in the policy at $1000, and the plaintiff owned one half of her. He claimed as for a total loss of his half.

<p>Under the Rev. Sts. c. 71, when an administrator, m a petition to the court of probate for license to sell the real estate of his intestate, describes the whole of the estate, and represents that it is necessary to sell the whole for payment of the intestate’s debts and the charges of administration, the court, on being satisfied that such representation is true, need not grant a-license in terms which allow the sale of so much of the estate as may be necessary to raise the sum required to pay the debts and charges, but may grant, in terms, a license to sell the whole.</p>

Writ of error to reverse a judgment of the municipal court at the August term 1843, sentencing the plaintiff in error to punishment in the state prison.

<p>It was alleged, in an indictment against Robert Harley and James Cameron, that they, on the 4th of November 1842, devising and intending by unlawful means to get into their hands and possession the goods, &c. of the citizens of the Commonwealth and with intent to cheat and defraud George B. Blake, David Nevins and Edward A. R. Lyman, copartners in trade, under the firm of George B. Blake & Co., did designedly and falsely pretend and represent to said George B. Blake & Co. that they, said Harley and Cameron, were in the employment of one P. Harley, who was possessed of, and the rightful owner of, a stock of goods, which were then in a certain shop, and was solvent and in good credit; that they were authorized by said P. Harley to buy goods in the name of said P. Harley, and that said Robert Harley was authorized to give promissory notes for such goods, in behalf of said P. Harley; that said P. Harley was a man, and desired to buy goods on credit of said George B. Blake & Co. in the usual honest course of trade, with intent to pay for them, &c.; that said Blake, Nevins and Lyman, believing said pretences and representations to be true, and being deceived thereby, delivered to said Robert Harley and James Cameron, for said P. Harley, sundry goods of the value of $ 140-66; whereas in truth said P. Harley was not possessed of, and was not the rightful owner of, said stock of goods in said shop, but had, before that time, executed and delivered to said Robert Harley five mortgages on said stock, to secure payment to him of large sums of money ; that said P. Harley was not a man, nor solvent, nor in good credit, but was a woman, named Philenia Harley, was insolvent, and did not desire to buy goods honestly on credit; that said Robert Harley and said Cameron did not wish to buy goods for her, honestly, &c.</p> <p>At the trial in the municipal court, evidence was offered, in behalf of the Commonwealth, tending to prove that the false pretences, set forth in the indictment, were made by said Cameron, in the absence of said Robert Harley; and there was no evidence that said Robert, in person, ever made any of the said pretences to any member of the said firm of G. B. Blake & Co., or to any clerk or agent employed by them. But there was evidence tending to prove that the false pretences, made by said Cameron, as aforesaid, were made by him with the knowledge, approbation, concurrence and direction of said Robert Harley. Upon this evidence, the court instructed the jury, that if they were satisfied that the said false pretences were in fact made bv said Cameron with the knowledge, approbation, concurrence and direction of said Robert, then said false pretences were, in substance and in contemplation of law, made by the defendants jointly, and the allegations in the indictment, on this point, as against said Robert, were sustained by the evidence. The court further instructed the jury, that it was not necessary for the government to prove that the said false pretences were the sole cause and exclusive means by which the goods mentioned in the indictment were obtained ; but if the jury were satisfied that without those pretences said goods would not have been delivered, that was sufficient to sustain and prove the allegation in the indictment, ■ that the goods were obtained by said false pretences.</p> <p>There was evidence tending to prove that the goods, alleged in the indictment to have been obtained by said false pretences, were obtained for the use and benefit of said P. Harley, and not of the defendants. Upon this point, the court instructed the jury, that it was not necessary for the government to prove that the defendants, or either of them, obtained the goods on their own account, or that they, or either of them, derived or expected to derive, personally, any pecuniary benefit therefrom ; but that if the jury were satisfied that the defendants obtained the said goods by means of said false pretences, for the sole use and benefit of said P. Harley, this was sufficient to sustain the allegation in the indictment, that the defendants obtained the said goods by said false pretences.</p> <p>There was also evidence tending to prove that the alleged false pretences were not made to the members of the firm of George B. Blake & Co or either of them personally, by the defendants, or either of them personally, but that they were made, in the shop of said firm, to one Cushman, their clerk and salesman, who com municated the same to David Nevins, one of said firm ; that said Nevins thereupon directed said Cushman to exercise his discretion, and sell said goods, if he thought best; and that said Cushman, moved thereunto partly by said false pretences, and partly by information obtained by him from other persons, to whom reference was made by said Cameron, did sell and deliver said goods on a credit of sixty days. The court instructed the jury, on this point, that if these facts were proved by this evidence, it was sufficient to sustain the allegation in the indictment, that the said George B. Blake & Co. were induced by said false pretences to deliver said goods to the defendants.</p> <p>The jury were unable to agree upon a verdict as to said Cameron, but found said Robert Harley guilty ; and he filed exceptions to the foregoing instructions.</p>

<p>Two writs of scire facias. The declaration in each case alleged, that on the 28th of March 1843, before the municipal court of the city of Boston, the said Harley and Carlisle acknowledged themselves to be severally indebted to the Commonwealth, said Harley as principal, and said Carlisle as surety, in the sum of $200, on condition, that if said Harley should “personally appear before the supreme judicial court now holden at Boston, within and for the county of Suffolk; ” should enter and prosecute his exceptions with effect, and abide the sentence thereon; and in the mean time keep the peace and be of good behavior; then said recognizance should be void; that said Harley had failed to enter and prosecute his said exceptions, according to the conditions aforesaid; and that said sum of $ 200 had become forfeited, &e</p> <p>It was agreed, by the defendants’ counsel and the attorney for the Commonwealth, that said Harley, in the municipal court, at the March term 1843, was found guilty of an offence for which he there stood indicted; that he alleged exceptions to the direction of said court, in matter of law, and that he and said Carlisle entered into the recognizance set forth in said writs of scire facias; that said exceptions were alleged, and said recognizance entered into, during the March term 1843 of the supreme judicial court in the county of Suffolk, and before any adjournment thereof, except from day to day; and that said Harley did not enter his said exceptions at that term, or at any subsequent term of said court. It was also agreed, that the question of the defendants’ liability upon the recognizance should be adjudicated upon the foregoing facts.</p>

The defendant was indicted, on the Rev. Sts. c. 130, § 2, for marrying a second husband, while her former husband was living.

John W. Rand and Richard L. Rand were indicted forstealing, at Boston, sundry bank bills, to the amount of $4000, belonging to the Quincy Stone Bank. Trial in the municipal court at November term 1843.

<p>A new trial will be granted where material evidence, of a distinct species from any that was given at the former trial, is newly discovered, and no neglect can be imputed to the party -in not having been previously prepared with it.</p> <p>In a suit by or against an administrator, he cannot give in evidence an entry, relating to the matter of the suit, made by his intestate in a memorandum book con- • ceming his own business, in respect to a transaction of a kind concerning which vouchers and evidence of a more satisfactory character are usually preserved, and where such entry is not proved to have been made at the time when it pur ports to have been made, and is not corroborated by any other evidence. • •</p> <p>Where a testator devises his real estate to his executor in trust, among other things, to pay the income thereof to the testator’s widow for life, the widow is entitled only to the net income, after deducting taxes, repairs, and the ordinary current expenses attending the estate.</p> <p>Where an executor, to whom real estate is devised in trust, is authorized by the will to take down any part of the testator’s buildings, and to rebuild, to erect additional buildings, and to hire money for the purpose of bettering the trust estate, he may advance his own money for the like purposes, and charge it in his general administration account.</p>

<p>Where the documentary title to lands of adjoining owners does not fix the bound ary line between them by admeasurement, monuments, or otherwise, the title oí either will be inferred from priority of occupation. In such a case, the erection of a building, by one of the adjoining owners, on his own land, with eaves over nanging land that has not been occupied in any way by the other owner, is a prior occupation and possession of the land under the eaves, and the subsequent cultivation or use of that land by the other owner cannot be regarded as an interruption of such prior occupation and possession. So if one of the adjoining owners encloses, or otherwise uses, land up to a certain line, which he claims as his boundary line, this will be regarded as a prior occupation and possession up to that line as against the other owner, who subsequently erects a building on that line, with eaves overhanging the land thus enclosed or used.</p>

<p>On an appeal from the judgment of the court of common pleas on an award of arbitrators, nothing can be considered but some error apparent on the record, which would be examinable on a writ of error.</p> <p>Where controversies are submitted to the determination of an arbitrator, and he, at the request of one of the parties, reports the evidence on which he makes his award, but declares that he does so with no intention to submit the matters arbitrated to the revision of the court, the court will not inquire whether he has decided rightly on questions of law or of fact.</p>

Assumpsit to recover the balance alleged to be due on account of certain shipments of nails and iron made by the plaintiff to the defendants, at Mobile, Alabama, in 1837 and 1838.

<p>Where a minister and his parish submit a controversy between them to an ecclesiasti cai council, the decision of such council, if not impeached for good cause, is a justification of the party conforming to it, though it does not, ex proprio vigore, operate as a judgment.</p> <p>A minister and his parish submitted to an ecclesiastical council the question whether he should be dismissed: Among other causes, assigned by the parish for his dis missal, was a certain alleged immorality: The council decided that the alleged immorality was not proved, and that there was no sufficient cause for a dismissal: The minister conformed to the decision, continued to perform his parochial duties, and brought an action against the parish to recover his salary: The parish thereupon filed a bill of discovery, alleging that he had forfeited his office of minister of the parish, by reason of the aforesaid immorality, and that proof thereof was essential to their defence against said action 5 and praying that he might be compelled to answer on oath respecting the same : The minister pleaded the decision of said council, and his conformity thereto, as a bar to the bill. Held, that the minister was not bound to make the discovery sought, because the decision of the council pre eluded the parish from giving any evidence in support of said charge of immorality, by way of defence to said action.</p>

<p>The defendant was indicted for the murder of Charles Lincoln, jr. warden of the state prison, on the 15th of June 1843.</p> <p>When the court were proceeding to empannel the jury, the counsel for the defendant inquired whether, if he chose to exercise the right of peremptory challenge, given by the Rev. Sts. c. 137, <§> 5, he must do it before the court interrogated the juror as to his having expressed or formed any opinion, or being sensible of any bias, or prejudice, or holding such opinions as would preclude him from finding any defendant guilty of an offence, punishable with death. (See Rev. Sts. c. 95, $ 27, and c. 137, §> 6.) The counsel referred to Commonwealth v. Knapp, 9 Pick. 496. The court decided, notwithstanding Knapp’s case, that the right of peremptory challenge, if exercised at all, must be exercised in the first instance, before the juror should be interrogated as to his bias or opinions.</p> <p>In the course of the trial, the defendant called a witness, who was objected to, by the attorney for the Commonwealth, as incompetent, on the ground of his having been convicted of the offence of receiving stolen goods, knowing them to have been stolen. The record of his conviction of that offence was produced.</p> <p>The court decided that the witness was incompetent; that though there was no known adjudication on this precise question, yet, whether the nature and aggravation of the offence, or its moral turpitude and its statute punishment were considered, they were of opinion that it rendered the convict infamous.</p> <p>The evidence was full and uncontradicted, that the defendant, at the time alleged in the indictment, was a prisoner in the state, prison, and then and there killed the warden of the prison by stabbing him in the neck with a knife. The sole ground on which the defendant’s counsel placed his defence was, that he was insane when he committed the homicide; and most of the evidence, on both sides, related to this single point. The superintendents of several Jnsane hospitals were witnesses in the case, and their testimony tended strongly to prove that the defendant, at the time of the homicide, was laboring under that species of insanity which is hereinafter commented on by the chief justice in the charge of the court to the jury.</p> <p>The opinion of the court on the law of the case was given in the following charge to the jury by</p>

<p>An averment, in an indictment for a conspiracy, that the defendants conspired if-defraud A., is not supported by proof that they conspired to defraud the public generally, or any individual whom they might meet and be able to defraud.</p>

<p>This was an action of assumpsit, brought by the surviving partner of the firm of Courtis & Morse, upon the following guaranty: “ Boston, August 23d 1838. Know all men by these presents, that I, Bowman W. Dennis, of Cambridgeport, in consideration of the sum of one dollar to me paid by Courtis &, Morse of Boston, the receipt whereof I do hereby acknowledge, I do therefore guaranty to them the payment of one half of any loss that may accrue in the business of my brother, Selah G. Dennis, during such time as he may be connected in business with said Courtis & Morse. Bowman W. Dennis.”</p> <p>Trial before Wilde, J., whose report thereof was as fol- ' ows: Evidence was offered tending to show that a partnership was formed, on the 23d of August 1838, between Thomas Courtis and William S. S. Morse, then merchants and partners, in Boston, on the one part, and Selah G. Dennis, on the other part, by an agreement, which is stated in the margin; * that in pursuance thereof, said Courtis & Morse sold and delivered to said Selah G. Dennis goods amounting to $7936-71; that the partnership between Courtis & Morse was dissolved on the 6th of November 1838, after which said Courtis continued in business in Boston, by himself, and, between said 6th of November and the 19th of August 1840, sold and delivered to said Selah G; Dennis other goods, amounting to $ 15,737-19 ; that said Courtis afterwards formed a partnership with William Courtis, under the firm of William Courtis &, Co., which last firm sold and delivered goods to said Dennis, amounting to $3802-97 ; that said Dennis remitted money to Courtis & Morse, amounting to $3426-75, so that the balance of the account of Courtis & Morse against said Dennis, at the time of said dissolution, was $4503-96 ; that said Dennis, after the said 6th of November 1838, continued to remit money to Thomas Courtis, the plaintiff, and, from that day to the 29th of September 1840, remitted $ 16,983-26, which sum the plaintiff claims the right to appropriate to the liquidation of said Selah G. Dennis’s debts to the plaintiff, and to William Courtis & Co; but the defendant claims the right to have the same applied to liquidate the debt which the. plaintiff alleges to be covered by the defendant’s guaranty.</p> <p>The evidence proposed to be offered by the parties, to show the manner of making these remittances, was not gone into, the same not being deemed material to the question upon which the presiding judge suggested that the case should be carried up for 'the opinion of the full court.</p> <p>The plaintiff offered no evidence of any partnership loss, as such, in the partnership business of Courtis & Morse and 3. G. Dennis, nor of any notice to, or demand upon, the guarantor; but the plaintiff claimed to recover, as surviving partner of Courtis & Morse, one half of the debt due from S. G. Dennis to Courtis & Morse, for goods sold as aforesaid.</p> <p>The presiding judge ruled, 1st, that the action could not be sustained, unless the plaintiff should prove a loss in the partnership of Courtis & Morse and S. G. Dennis; and that a claim of Courtis & Morse against S. G. Dennis, for goods sold, would not be such a loss as could be recovered against the guarantor; and 2d, that the plaintiff must also prove a notice to the guarantor, and demand of him, within a reasonable time, of the amount claimed; and that bringing the action was not a sufficient demand and notice to enable the plaintiff to recover.</p> <p>To these rulings the plaintiff excepted ; and it was agreed that if the first ruling should be sustained by the full court, the plaintiff should be entitled to a new trial, in order to let in proof of a partnership loss as aforesaid ; that if the ruling as to demand and notice should be sustained, the plaintiff should become non-suit ; and that if neither of the rulings should be sustained, a new trial should be granted, to enable the defendant to offer evidence upon any point of his defence.</p>

<p>Where one of the purposes of a mortgagor and mortgagee is to deter the mortgagor’ creditors from attaching the mortgaged property, the mortgage is wholly void, as to those creditors, although the principal purpose of the parties is to secure a bond fide debt of the mortgagor.</p> <p>Where a mortgage of personal property was made by A. to B., fraudulent and void as to A.'s creditors, to secure payment, in six months, of a debt of A., then due and paya ble to C., who had no knowledge of the mortgage when it was made, and B., before the six months elapsed, sold the property at auction and applied the proceeds of the sale to the payment of A/s debt to C., and A. afterwards applied for the benefit of the insolvent act of 1838, c. 163, and his property was assigned under that act j it was held that his assignee could not recover of B. the proceeds of said mortgaged property.</p>

This was an action of debt, commenced on the 4th of March 1842, by the assignee of Perley & Bernice S. Hale, insolvent debtors, to recover back three fold the amount of interest paid by them to the defendant; it being alleged that they had paid to him a greater rate of interest than is allowed by law.

Assumpsit on a promissory note for $2000, dated August 1st 1840, made by the firm of P. & B. S. Hale, payable to the de fendant or order in six months, and by him indorsed.

<p>It Is not a universal and inflexible rule, that a plaintiff must himself make oath to the loss ofa paper of which he is presumed to have the custody, and of diligent search for it, before he can introduce secondary evidence of its contents.</p> <p>A. accepted a draft drawn on him by two partners, and they procured from a bank a discount of the acceptance, by presenting a copy thereof, which the officers of the bank supposed to be the origina]: The partners soon after failed, and assigned to the bank all their dues, demands, &c., and delivered to the bank a trunk of papers; hut the acceptance was not among them: One of the partners was soon after committed to the state prison, where he died unmarried in about three years, leaving no papers there ; and no administration was taken on his estate : The other partner, soon after the failure of the firm, absconded, leaving his wife, and went to New York, where he resided three or four years, and then went to parts unknown, and was never again heard of: In about five years and a half after the acceptance was payable, the bank commenced an action against A., in the name of the surviving partner, to recover the amount of the acceptance; and, in order to introduce secondary evidence of the contents thereof, first gave evidence that inquiry had been made of the near relations of the partners, who said that the original was not and never had been in their possession : that it was not among the papers of the firm which were left by the surviving partner with his wife and with his attorney; but that there was, among the papers so left, the account of sales, signed by A., for the balance of which the acceptance was given, as was noted on the margin of said account. Held, that this evidence was sufficient to warrant the introduction of secondary evidence of the acceptance.</p> <p>Exceptions lie to the rejection of secondary evidence, after the introduction of pre liminary evidence sufficient to warrant its admission.</p>

This was an action of assumpsit to recover a loss sustained by the plaintiff, as he alleged, in consequence of the negligence, error, or misrepresentation of John Rich, the defendant’s intes tate, while said John was master and supercargo of the plaintiff’s ship Arno, on a voyage from Boston to Batavia and Canton, and back, whereby an overdraft, and over investment of £1000 sterling were made on the plaintiff’s account.

Petition for a writ of certiorari, to bring before the court the record of the county commissioners concerning the discontinuance of a road in the town of Adams, on the petition of Edmund Southwick and others.

<p>Assumpsit to recover the amount of expenses incurred by the plaintiffs in the support of Leonard Briggs, a pauper. The only question in the case was, whether the settlement of said Briggs was in the town of Shutesbury. This question was submitted to the court on the following statement of facts :</p> <p>The settlement of said Leonard Briggs is in the town of Shutesbury, unless he acquired a settlement in the town of Savoy by virtue of a deed from Daniel Sturtevant to Josiah Briggs, father of said Leonard, dated February 12th 1829, conveying the following described premises: “ All of the upper part of the house and half of the cellar, except the east great room ; also the north part of the great barn, to the middle of the floor, with a privilege of a barn yard, and a privilege round the house for wood-house and wood-pile, all said buildings standing on the land formerly owned by James Sturtevant, now owned by Borden ; it being the same buildings and privileges that the said James Sturtevant quitclaimed to me, the said Daniel Sturtevant.” The said Josiah Briggs was a citizen of this Commonwealth, and after he was twenty one years of age resided on and occupied the above described premises, claiming title under said deed, three years successively ; and the said Leonard Briggs after-wards died under the age of twenty one years, never having gained a settlement in his own right.</p> <p>It was agreed that if, upon the foregoing statement, taken in connexion with the deeds of conveyance set forth in the mar gin, * the plaintiffs were entitled to recover, judgment should be endered for them ; otherwise, that they should become nonsuit.</p>

Assumpsit for money had and received, money lent, and money paid. The original writ was made on the 7th of August 1843, returnable to the then next court of common pleas, and the damages demanded were $ 2000.

Writ of entry to recover an undivided moiety of certain real estate of which the demandant alleged that he was seized in fee and in mortgage. Plea nul disseizin. Defence (as per specification filed) that the notes secured by the mortgage, and also the notes secured by the assignment of the mortgage to the demandant, were without consideration, and also that they had been paid before this action was commenced.

<p>Debt on a bond executed by the defendant on the 27th oi December 1837, for the payment of $580 to Nathan Drury, the plaintiff’s testator. The condition of the bond was thus: “ Whereas said Drury has purchased of said King a certain promissory note against Otis Hodge, jr., dated March 24th 1832, for the sum of $370 and interest — said note is payable to one Simon H. Ray or bearer, and said note is secured by mortgage to said Ray, dated March 24th 1832, and said mortgage is assigned by said Ray to Benjamin F. Robinson, and by said Robinson to James E. Marshall, and by said Marshall to Turner & Laflin — and whereas said King has agreed to procure an assignment of tu-, said mortgage from said Turner & Laflin, or from some person legally authorized by them to assign the said mortgage to said Drury within one year from the date hereof, or, in case said King does not procure an assignment from said Turner & Laflin, or some person legally authorized by them to make an assignment by them to said Drury, said King shall pay or cause to be paid to said Drury, or his heirs, executors, or administrators, the said sum of $580 and interest on the same, then this bond shall be void; otherwise, to remain in full force and effect.” On the back of the bond was the following memorandum :</p> <p>“Due on Otis Hodge,jr.’s note secured by mortgage - §497-65</p> <p>Expenses paid by King - - .... 2-35</p> <p>December 22d 1337.</p> <p>N. Drury gave bis note to King for $500 — Mt.</p> <p>N. Drury gave his note to King for - 80 — Extn.</p> <p>Paid to Holipin ... ... 14 65</p> <p>$594-65 Due.</p> <p>To Rob. - - - 450-00</p> <p>December 33d 1837, $1044-65 Due.’1</p> <p>The following writing was also on the back of the bond : “ If said King shall fail to procure an assignment of the mortgage within named to said Drury, and shall tender to said Drury, or pay to said Drury, the sum of $580, and interest on the same ; if said Drury shall receive the said $ 580, and interest, then said Drury shall give up to said King the note within mentioned against said Hodge. It is, however, to be optional with said Drury, to give the note to said King or not. If said Drury shall refuse to give up the note within mentioned to said King, said King not to pay said Drury any thing. N. Drury.” Annexed to the bond was the deposition of E B. Penniman, stating that the bond was drawn by him, and executed by the defendant in his presence; that the agreement of said Drury, on the back of the bond, was drawn by the deponent; also, that the memorandum on the back of the bond was made by him, at the same time, “ down to figures of $ 580, and also the lower date of December 22d 1837 ; ” and that the other writing and figures of said memorandum were in the handwriting of Nathan Drury, but were not put upon the bond when it was executed: That said Drury gave to the defendant two notes of hand, one of $ 500, and one of $ 80, at the time of the execution of the bond, and according to said memorandum; that the sum of $580 was the amount of two different transactions, one for the note, the other for an execution against Otis Hodge. The deponent further stated, that he “ should say,” but was “ not positive as to the fact,” that Otis Hodge gave to Drury, at the time the bond was executed, a quitclaim deed of “ the premises named in the bond.”</p> <p>In the court of common pleas, the defendant admitted a breach of the condition of the bond, and submitted to a default He then moved for a hearing in chancery, to ascertain the sum for which execution should issue. The plaintiff objected to this motion, on the ground that the sum of $580 and interest was not a penal sum, but liquidated damages. The court overruled this objection, and decided that the sum mentioned in the bond was a penal sum, and accordingly ordered that judgment should be entered for said sum and interest thereon from the date of the writ, and that execution should issue for such sum as should be adjudged by the court, on a hearing in chancery, according to the Rev. Sts. c. 100, <§> 9. The plaintiff thereupon alleged exceptions.</p>

Indebitatus assumpsit on the common money counts. Plea, the general issue. Trial in the court of common pleas. The plaintiff, to maintain the issue on his part, offered in evidence the following instrument: “New Ashford, March 13th 1840.

<p>A justice of the peace has no jurisdiction in an action of replevin, except replevin for beasts distrained for going at large, or impounded for doing damage $ and of course the court of common pleas has no appellate jurisdiction of any other action of replevin.</p> <p>A plaintiff, against whom a judgment is rendered, may maintain a writ of error to re verse it, on the ground that the court to which he resorted had no jurisdiction.</p> <p>Where an action of replevin for goods, commenced before a justice of the peace, was carried to the court of common pleas by appeal, and that court rendered judgment for the defendant for a return, with damages and costs, and the plaintiff brought a writ of error, on the ground that neither the justice nor said court had jurisdiction, so much of the judgment as awarded a return and damages was reversed, and so much as awarded costs was affirmed.</p>

<p>It is not necessary, in order to maintain an action by an incorporated bank, that such bank should show a regular organization, according to the directions of the Rev. Sts. c. 44. It is, in general, sufficient to give evidence of the afct of incorporation, and the actual use of the powers and privileges thereby conferred.</p> <p>A promissory note given to a bank for stock therein, if received as equivalent to cash, entitles the promisor to the privileges of a stockholder, and is therefore not void for want of consideration.</p> <p>Where the receiver of the effects of a bank, who was appointed on motion of the bank commissioners, pursuant to St 1838, c. 14, brings an action in the name of the bank against a stockholder, to recover the amount of a note for stock subscribed for, such stockholder cannot defeat the action by showing that he and all the stockholders gave their notes for stock instead of paying money, in fraud oi the banking laws: nor by showing the repeal of said statute of 1838, c. 14.</p>

<p>This was a complaint against the defendants, made to a jus tice of the peace, for an assault and battery upon Timothy Hall, on the 23d of March 1844. The defendants appealed from the justice to the court of common pleas. Trial before "that court at the last June term. The judge before whom that trial was had made the following report thereof:</p> <p>It appeared, that at the time of the alleged assault, &c., the defendant Power was master of the depot of the Western Rail Road, at Pittsfield, and. that the other defendants were servants of the Western Rail Road Corporation: That said Hall, having in his pocket a ticket for his passage in the rail road cars from Pittsfield to Richmond, and having a bona fide intention to go to Richmond, entered said depot about the time of the arrival of the cars for Richmond, and was proceeding to the platform, for the purpose of entering a car : That said ticket had been procured by another person, and that neither the defendants nor any other agent of the said corporation knew that Hall had it. or that he intended to go to Richmond.</p> <p>Said Power alleged in his defence, that Hall was going to the platform to solicit passengers to go to his house, he being the keeper of a tavern near the depot; that said Power met Hall on his way to the platform, told him he must not go there, laid his hands upon and ordered him to leave the depot, without any previous inquiry as to his purposes; that Hall made no reply, but pressed forward and endeavored to reach the platform in spite of the efforts of said Power, who thereupon ordered the other defendants to put him out of the depot; and that they accordingly took him, and forcibly put him out, not using any more violence than was necessary to accomplish that object.</p> <p>It appeared in evidence, or was admitted on the part of the Commonwealth, that the innkeepers in the neighborhood of said depot had previously to this affair been in the habit of going, or sending their servants, to the platform, to solicit passengers, arriving in the cars, as customers to their several houses; and that Hall had personally, and by his servants, participated in this practice; that this practice had become a great annoyance to passengers; that said Power, having been placed, by the rail road corporation, in charge of the depot, had addressed a circular letter to said innkeepers, about two weeks before the said assault, stating the facts, and requesting them to discontinue said practice, and giving them notice that they would thereafter be excluded from the platform ; that all of them, except Hall, discontinued the practice, but that he continued to go to the platform and solicit passengers; that said Power had forbidden him, a day or two before the said assault, to enter the depot at all; that notwithstanding this, Hall had again forced his way to the platform, when the cars were in, against the remonstrances and efforts of said Power, who again told him that he must not come to the depot any more.</p> <p>On this evidence, the defendants contended that they were justified in doing the acts complained of. The judge instructed the jury that the foregoing facts did not constitute a defence; and under said instruction, a verdict was returned against the defendants. But as the question of law in the case was, in the opinion of the judge, so doubtful as to require the decision of the supreme judicial court, he made the foregoing report of the case, pursuant to the Rev. Sts. c. 138, § 12.</p>

In a petition, by the administrator of Stephen Stevens, for a writ of certiorari, it was alleged that at the June term 1840 of the court of common pleas, Gershom M. Fitch and Ezekiel W. Fitch recovered judgment against said Stevens for $ 175 damage, and costs of suit taxed at $471T3, and that execution issued on said judgment, and was satisfied by a levy on the land of said Stevens : That said judgment was founded on proceedings upon a complaint, under the Rev. Sts. c. 116,…