Volume 49 — Massachusetts Reports

Two actions of trespass quare clausum, to recover mesne profits. In the first action, damages were demanded from March 24th 1843 to August 5th 1843 ; and in the second, from August 5th 1843 to January 27th 1844. At the trial before Dewey, J. it appeared that the plaintiffs, being owners of the premises described in the writs, sold them to John Ames on the 1st of May 1839, and at the same time received from, him a mortgage deed thereof, to secure payment of the purchase money.

Assumpsit for use and occupation of a dwelling-house. The defendant Strong was defaulted. Webster Herrick, the other defendant, defended. At the trial in the court of common pleas, after the plaintiff had adduced evidence tending to prove a joint promise of the defendants, said Herrick called said Strong as a witness to prove that the promise was several, and not joint, and that one part of the house was hired by Herrick, and the other part by himself.

Indebitatus assumpsit for money had and received, money lent, and goods sold and delivered. At the trial, in the court of common pleas, the plaintiff gave in evidence a promissory note of the following tenor: “Amherst, May 16th 1838. On demand, we promise to pay Solomon Pitkin, or order, two hundred dollars and interest. Value received. Interest to be paid annually.

<p>Mortgage deed, given by the principal maker of a promissory note to his surety 4xi the note, conditioned that the principal will pay the note and save the surety harmless, creates a trust and an equitable lien for the holder of the note > and the surety holds the mortgaged property subject to such trust and lien, even after the holder’s claim on him to pay the note is barred by the statute of limitations, and though the property, as between mortgagor and mortgagee, may have become absolute by foreclosure.</p> <p>The trust created by sue* mortgage is not secret 5 and when the mortgage is recorded, it gives constructive notice of the trust to all creditors and purchasers, so that they cannot, by attachment or grant of the mortgaged property, take it discharged of the trust j and the assignment of the mortgagor’s estate, under the insolvent law of 1838, c. 163, will not, by virtue of $ 5 of that statute, defeat thj trus*</p> <p>A building erected on the land of one who has given a bond to the builder to convey the land to him, on his paying a certain sum within a certain time, is not the personal property of the builder, within the meaning of the Rev. Sts. c. 74, $ 5, so as to require a mortgage thereof, given by the builder to the owner of the land, to be recorded in the town clerk’s office, in order to render it valid as against the creditors of the mortgagor 5 nor so as to cause a forfeiture of the building to the mortgagee, under Rev. Sts. c. 107, $ 40, in sixty days after breach of the condition of the mortgage.</p> <p>Where a surety on several notes takes a mortgage from the principal promisor, conditioned to pay the notes and save the surety harmless, and thereby holds the mortgaged property in trust for the holders of the notes, and he remains liable on only one of the notes, and the property of the principal is assigned under the insolvent law of 1838, c. 163, the mortgaged property, if sufficient to pay all the notes, is to be applied to the payment thereof, and the surplus, if any, is to be distributed among the general creditors of the mortgagor. But if the mortgaged property be insufficient to pay all the notes, the surety is first to be indemnified therefrom, and the surplus is to be paid to the holders of the notes, pro ratá.</p>

Writ of entry, brought by the assignee of the estate of William Pittsinger, an insolvent debtor, to recover a tract of land in Chesterfield. The case was submitted to the court (without argument) on the following agreed statement • On the 23d of February 1843, the tenant, Hayden, commenced an action on the case, for a malicious prosecution, against said Pittsinger, in which, on the 25th of said February, he attached the land demanded in this suit.

<p>Where one prosecutes a suit against another, in the name of a third person, with out authority so to do, he is liable to the person so sued, though he was not actuated by malice in commencing and prosecuting such suit.</p>

<p>An agreement, by an owner of land, that another may cut down the trees on the land, and peel them, and take the bark to his own use, is not within the statute of frauds —- Rev. Sts. c. 74, $ 1.</p> <p>Where one has cut down and peeled trees on another’s land, under a valid agreement that he shall have the bark, the bark becomes his property, and he has a lawful right to enter upon the land and take it away.</p>

Appeal by the creditors of Francis A. McLean, deceased, from a decree of the judge of probate for the county of Hampden, allowing the account of his administrator, the appellee.

<p>Assumpsit by the indorsees against the indorser of a promis sory note. The note was made by Moses Eager, for $400, dated February 24th 1844, payable to the defendant, or order, at the Hampden Bank, in five months from date, and was indorsed by the defendant and by Caleb Rice.</p> <p>At the trial before Hubbard, J. the making and indorsing oi the note, demand on the maker, and notice to the defendant, were proved or admitted. The defendant called the plaintiffs’ cashier as a witness, who testified that a note of $350 was discounted by the plaintiffs for Caleb Rice, on the 18th of March 1844, and that the note in suit was then left by him as collateral security for that note ; that the note in suit had been previously offered by Rice for discount, and had been refused, because Eager (the maker) was then under prosecution for forgery, and also because he was not considered good ; that these reasons for not discounting the note were given to Rice; ana that Rice asked if the indorsement was Chapin’s signature: That it was not the practice of the plaintiffs to discount a note, unless the promisor is good ; and that he had no notice, before taking this note, that the deféndant refused to pay it, and did not know, till since the note was in suit, that it was contested; and that Rice did not state how he obtained the note, or of whom.</p> <p>Caleb Rice testified that he borrowed some money of the plaintiffs, on his own note, and left the note in suit at the bank as collateral security; that this was about thirty days after the date of the note in suit; that the plaintiffs refused to discount the note, because the maker had been prosecuted for forgery ; and that the president and cashier of the bank also said they did not.consider the maker good; that he (the witness) told them that he took the note with a blank dáte, as to the day of the month, and had himself inserted the day; that when he first presented the note, he asked said president and cashier, if the indorsement was the hand writing of Veranus Chapin ; that he presumed he told them of whom he had the note, but could not say with certainty that he did; but that he should have told them if they had asked him; that he had previously presented the note to the Hampden Bank, and that it was there refused; that the note of $350, discounted for him (the witness) by the plaintiffs, fell due and was renewed, after the maturity of the note in suit.</p> <p>This witness, being asked as to his own connexion with this suit, said, “ I think I told Mr. Bliss ” (the president of the bank) “ that he must collect the money, for my note, from his security.”</p> <p>The defendant then offered to prove that Rice, the second in dorser, obtained the note from Eager, the maker, and that the defendant was an accommodation indorser merely, and that the whole negotiation in regard to it was between Rice and Eager; that the defendant’s indorsement was entrusted to Eager for a special purpose, different from that to which it was applied, and that Eager told Rice of this, at the time of delivering the note to him ; and that there was no consideration for the note, as between Rice and Eager. This evidence was rejected.</p> <p>The defendant also offered to prove that Rice’s claim to the note was only as collateral security; contending that, in such case, Rice could not transfer any title to the note, or, at least, that the plaintiffs could recover only the amount of the claim for which it was pledged. And for this purpose he offered to prove that he was only an accommodation indorser. ' This evidence was rejected.</p> <p>A default was then entered, subject to the opinion of the court as to the admissibility of the evidence offered by the defendant.</p>

Assumpsit to recover pay for a quantity of powder. It appeared, from the report of the judge before whom the trial was had in the court of common pleas, “ that the construction of the 74th section of the Western Rail Road was contracted for by Josiah Baylies, who underlet the same to Stocking & Lord ; and that Lord was associated with Almon Lard, under the style of A. B. Lord &, Co., they having purchased of Stocking his interest in the contract; that about the 1st of March…

<p>Bill in equity for redemption of mortgaged real estate. The plaintiffs alleged, in their bill, that on the 4th of October 1839, Sylvanus Holbrook conveyed to the plaintiff Brown, by a deed of mortgage containing covenants of warranty, and recorded on the 2d of April 1840, a parcel of land in Sutton, described as “ all that real estate which was conveyed to said Holbrook, by deed of Asa Woodbury and Henry Boyden, dated January 29th 1838, recorded in the registry of deeds,” &c., “ reference thereto being had, and to the deeds therein mentioned, and to the record thereof;” and that said Brown took possession of said mortgaged premises, for condition broken, on the 9th of March 1840: That the above mentioned deed of January 29th 1838, made to said Holbrook, contained covenants of warranty and against incumbrances, and described the premises thereby conveyed as “ that real estate in Sutton, whereof one undivided half part was conveyed to the said Henry ” (Boyden) “by the said Asa,” (Woodbury,) “ by deed dated July 10th 1833; reference being made to said last mentioned deed for a description of said estate: ” That said deed of one undivided half, made by said Woodbury to said Boyden, was with covenants of warranty and against incumbrances, and the land therein described consisted of five parcels ; one containing about an acre and a half, precisely described by metes and bounds, with all the water privileges and appurtenances thereto belonging; another containing one acre, more or less ; a third containing sixty rods, more or less; and two others, containing about seven acres : That said several parcels were the same which said Holbrook conveyed to said Brown, as aforesaid, and none other: That the said Brown conveyed to the two other plaintiffs two undivided third parts of said estate, by deed dated April 2d 1840; whereby the three plaintiffs became seized thereof in fee, as tenants in common.</p> <p>The bill further alleged, that said Asa Woodbury, by deed dated September 10th 1830, conveyed to Mary Chase, in fee and in mortgage, a parcel of land, with buildings, mills, water privileges, &c., containing fifty acres, and embracing the premises conveyed, as aforesaid, by said Holbrook to said Brown, and forty acres of other land; the conditions of said mortgage deed being, that said Woodbury should pay to said Mary $ 1000, with interest, in one year from the date thereof: That said Mary assigned said mortgage to the defendants, on the 29th of January 1842: That the defendants, on the 14th of May 1841, levied an execution, which they sued out on a judgment recovered by them against said Holbrook, upon four undivided fifth parts of that part of the estate conveyed by said Wood-bury’s mortgage to said Mary Chase, which was conveyed by said Holbrook to said Brown; and that, in making said levy, the officer and appraisers estimated said estate, four fifths of which were levied upon as aforesaid, at $7300, and deducted therefrom the whole amount due on said mortgage, to wit, $ 1641-17, and also deducted from said estimated value $ 124-05, “by reason of an incumbrance upon the water privilege; ” leaving the net value of said premises $5534-78.</p> <p>It was further alleged in the bill, that the defendants claimed to hold said premises by virtue of said mortgage and said levy , that the plaintiffs believed the levy to be inoperative and void, by reason of the aforesaid proceedings of the officer and appraisers, in making said levy: That the plaintiffs, on the 12th of May 1842, demanded of the defendants an account of the sum due by virtue of said deeds and levy ; and that the defendants neglected to render the same.</p> <p>The plaintiffs therefore prayed for a full answer, a statement of an account, &c. and for a decree that they might redeem, on paying such sum as they ought, &c.</p> <p>The defendants demurred to so much of the bill as related to the redemption from the levy, because the bill alleged the levy to be void; the plaintiffs’ remedy, in case of a void levy, being at common law. As to the rest of the bill, the defendants filed an answer, admitting the several deeds set forth in the bill; the assignment to them, by Mary Chase, of the mortgage made to her by Woodbury; and the demand made on them, by the plaintiffs, for an account. But they denied that they had neglected to render an account, and averred that they did render a just and true account on the 13th of May 1842.</p>

<p>Writ of entry, brought by the executors of the last will of Joseph Kingsbury, to recover two tracts of land in Webster. The writ averred that the said Kingsbury was seized of the demanded premises, in his life time, and had good title thereto, but died disseized thereof. The demandants counted on their own seizin, as executors, and a disseizin by the tenants. The action was brought on the following provision of the Rev. Sts. c. 71, <§> 12 ' “If the executor or administrator shall sell any lands fraudulently conveyed by the deceased, or any to which he had a right of entry or action, the executor or administrator may first obtain possession thereof by entry or by action, and may sell the same at any time within one year after obtaining such possession.”</p> <p>At the trial before the chief justice, the demandants, aftei giving evidence of the testator’s title to the demanded premises, introduced an attested copy of their petition to the court of probate for license to sell the testator’s real estate, and also of the following license thereupon granted by that court: “Ata</p> <p>court of probate holden at Worcester on the 1st Tuesday of April 1843. On the petition of Patty Kingsbury and Charles Yeomans, executors of the will of Joseph Kingsbury, late of Webster, deceased— notice thereof having been duly given — ordered that said petitioners be licensed to sell so much of the real estate of said deceased, for the purpose of paying debts and charges of administration, as will raise the sum of $2787-31 : The said petitioners taking the oath, giving p.ublic notice of the sale, and in all respects proceeding therein in the manner prescribed by law. Ira M. Barton, Judge of Probate.”</p> <p>It was represented, in the petition on which said license was granted, that the debts which the testator owed at the time of his death, taxes, charges of administration, &c., and the allowance made to his widow out of his personal property, exceeded the appraised value of that property by the sum of $2787-31 The description of the real estate of the testator, contained in said petition, the prayer of said petition, and the acknowledgment of notice by the guardian of the testator’s minor children, were as set forth in the margin.* It appeared by the petition that it bore date on the same day on which the license was granted, and that no notice was given, and no acknowledgment of notice, by persons interested, was signified, except that of Patty Kingsbury, one of the petitioners, as guardian of her three minor children ; she being the testator’s widow, and they all his minor children.</p> <p>After the foregoing evidence was introduced, the counsel for the tenants took an exception, in the nature of a motion for a nonsuit, and insisted that, upon the demandants’ own showing, they had not brought themselves within the Rev. Sts. c. 71, and had no right, as executors, to maintain this action. 1st. Because, as the petition described lands of which the testator died seized, and others of which he died disseized, it was manifest that other persons, being seized, were interested, and therefore that personal notice should have been given to them, or public notice to all persons interested, fourteen days before the granting of the license to sell. Rev. Sts. c. 71, § 8.</p> <p>2d. Because the petition did not set forth the value, descrip tion and condition of the respective parcels of the estate of which the testator died seized, and that of which he died dis-seized, so as to enable the court to decide and direct what specific part of the estate should be sold, as well as to give notice to parties interested. Rev. Sts. c. 71, <§> 3.</p> <p>3d. Because, as it appeared, by the petition and license, that the whole of the real estate liable for the payment of the testator’s debts was not necessary for the payment thereof, the decree of the court should have decided and directed what specific part of the estate should be sold,' and not have licensed the executors, in general terms, to sell so much as should be necessary, including the estate of which the testator died seized with that of which he died disseized ; thereby leaving at their election to sell the one or the other; such decision and direction of the court of probate being requisite, among other things, to enable any party aggrieved to appeal from such decision.</p> <p>The chief justice being of opinion that these objections, or some of them, were decisive against the demandants’ right to recover, advised a nonsuit, (which was entered,) and reserved the question for the consideration of the whole court.</p>

<p>Assumpsit to recover $ 1000 and interest, on the agreement hereinafter mentioned. At the trial in the court of common pleas, it was proved or admitted, that the defendant, on the 5th of April 1837, by a written instrument, conveyed to the plaintiff, for the consideration of $1000, “ one half part of the benefits and advantages ” of a certain patent right then owned by the defendant. The plaintiff then offered parol evidence tending to show, that when said conveyance was made, he paid $1000 to the defendant, and that the defendant then, in consideration that the plaintiff would pay him said sum and receive said conveyance, agreed with the plaintiff and promised him, that “ if the plaintiff did not, within three years from said 5th of April, realize the sum of $ 1000 out of the profits arising from the share of the patent right so conveyed to him, the defendant would repay that sum to the plaintiff, with interest.”</p> <p>The defendant objected to the admission of this evidence, 1 st, because it would affect and control a written contract; and 2d, because, if such agreement as the defendant offered to prove, should be proved, it would be void by the statute of frauds, as it was not to be performed within one year from the making thereof. But the evidence was ádmitted, and a verdict was returned for the plaintiff; whereupon exceptions were alleged by the defendant.</p>

<p>Where a plaintiff, for the purpose of avoiding a discharge of the defendant under the insolvent law of 1838, relied on by him as a bar to the plaintiff’s action, introduces a witness who testifies that the defendant, on the evening before he applied for the benefit of that law, transferred property to the witness in payment of a preexisting debt, the defendant is entitled to prove, on cross-examination, the declarations made by him to the witness, at the time of such transfer, for the purpose of showing that \t was not made by him in contemplation of becoming insolvent and obtaining a dis charge under that law.</p>

Covenant broken. The defendant pleaded the general is sue, and gave notice that he should rely, in defence, on a discharge under the insolvent law of 1838, c. 163. At the trial, in the court of common pleas, the defendant admitted the plaintiff’s claim, as set forth in his declaration, and claimed the right to the closing argument to the jury.

This was an action of assumpsit, commenced on the 31st ot May 1843, in the court of common pleas, to recover the amount of certain promissory notes, &c. The defendant at the first term pleaded the general issue, and gave notice that he should rely upon his discharge under the United States bankrupt act of 1841. He also filed a motion, at the same term, that the plaintiff should specify his grounds of avoidance of that discharge.

Appeal to this court, by an insolvent debtor, under St. 1838, v. 163, § 7, to obtain his discharge, after a sufficient number of creditors had interposed their objections, before a master in chancery, to prohibit him peremptorily from granting the discharge.

<p>Where a defendant relies on his discharge under the United States bankrupt law of 1841, the plaintiff cannot avoid the discharge, by merely showing that the defendant, in his petition in bankruptcy, omitted to insert the plaintiff’s name, &c. in the sworn list of creditors, and that, by reason of such omission, the plaintiff had no notice of the proceedings in bankruptcy, and could neither prove his claims against the defendant, nor oppose the granting of his discharge: In order to avoid such discharge, by reason of such omission, the plaintiff must show that the omission was wilful and fraudulent.</p>

<p>This was an action to recover the amount of a promissory note for $254, signed by D. G. Chase and H. O. Brown, dated March 29th 1842, payable to Silas Chase, or order, at the Mill-bury Bank, in six months after date, and indorsed in blank by said Silas.</p> <p>The parties agreed on the following facts : “ The plaintiffs, being holders and owners of said note, indorsed it in blank, and left it at the Suffolk Bank in Boston for collection. The cashier of that bank having indorsed said note as follows; ‘pay R. B. Chapman, cashier, or order: J. C. Brewer, cashier ; ’ sent it to the Millbury Bank for collection; and said Chapman, who was cashier of said bank, received it. At the maturity of said note, on the last day of grace, it being unpaid, within bank hours, by the makers, said Chapman, assuming to act and acting as a notary public, which office he held, received said note of said bank, and in that capacity protested the same, as such notary public, in due form of law; and on the same day, after bank hours, as such notary public, directed notices to the second and last indorsers’’(the plaintiffs) “ of the non-payment of said note, enclosed to said J. C. Brewer, cashier, Boston; placing said notices in the post office in Millbury.</p> <p>“ At the making of said note, Silas Chase, the first indorser, lived in Millbury, about one mile from the bank and the post office near the bank ; but, before the maturity of the note, had removed to Sutton, an adjoining town. Said Chapman, as notary public, when he went to the post office, to deposit the notices, after bank hours, inquired of the clerk having charge of said post office, whether said Chase lived in Millbury, and was informed by said clerk that he did ; and then said Chapman, on the same day deposited a notice in said post office in said Millbury, of the nonpayment and protest, directed to Silas Chase in Millbury. Subsequently, the present plaintiffs commenced an action against said Silas Chase, as indorser, and it appearing that the notice of non-payment and protest was as above stated, the judgment of this court was rendered against them. See Phipps v. Chase, 6 Met. 491.</p> <p>“ The business of the bank” (the defendants) “in the collection of notes transmitted for collection is managed by the cashier, and no special action or vote of the directors was had in relation to said Chase’s note, or the collection thereof.”</p> <p>It was agreed by the parties that the defendants should be defaulted, if the plaintiffs, on the foregoing facts, were entitled to maintain their action; otherwise, that the plaintiffs should become nonsuit.</p>

Writ of entry, brought by the administrator of the estate of Samuel Campbell, to foreclose a mortgage made to said Samuel of a tract of land in Oxford, on the 2d of May 1805, by Nathaniel Stockwell, and recorded on the next day.

The bill of exceptions, on which this case came before the court, and which was signed by the judge before whom a trial was had in the court of common pleas, was as follows: “ This was an action of assumpsit upon a voluntary undertaking of the defendant, without reward, to secure and take care of a promissory note given by Jonathan Whitney to the female plaintiff while sole.

<p>By a written agreement between A. and B., A. promised to deliver to B. a specified quantity of timber on or before July 1st 1842, and a certain other quantity on or before September 1st 1842, at certain agreed prices 5 and B. promised to give to A. a deed of certain land, estimated at a certain price per acre : B. also promised as follows: 11 To give A. a note for all that is delivered on or before the ls¿ of July, payable at bank in four months, and a note for half of balance, on the 1st day- of October/7 &c.: By the agreement, as originally written, B. promised to give A. a note for u one half of balance, payable at bank in four months 577 but the words, {t one half of balance/7 were erased, and the words, “all that is delivered on or before the 1st of July/7 were substituted by interlineation: A. delivered to B., on or before the 1st of July, all the timber which he had promised so to deliver, but the agreed price thereof was less than the agreed price of the land which B. had pro.mised to convey to A. Held, in an action brought by A. against B. for not giving a note for the timber so delivered, that, by the true construction of the agreement, B. was not bound to give such a note to A.</p>

This was an action of assumpsit, commenced on the 11 th of August 1843, to recover pay for the wood, &c. mentioned in the following contract: “ Princeton, April 27th 1843. Memorandum of an agreement made and entered into, the said 27th of April, by and between Abel Warren of Northborough, and William S. Wheeler and Charles Wheelock of Fitchburg. The said A. Warren agrees that the said W. S. Wheeler &.

Assumpsit to recover of the defendants the amount of a draft drawn by them on the plaintiff, while they were partners, and accepted by him for their accommodation. At the trial in the court of common pleas, the plaintiff, to maintain his action, offered in evidence the admissions of Lucius Beach, one of the defendants, that said draft was accepted by the plaintiff for the accommodation of said partners.

Writ of personal replevin. The case was submitted to the court upon the following agreed statement: “ On the 1st of May 1842, a tax was legally assessed, by the assessors of the town of Mention, upon personal property of the plaintiff, and payment of the same was duly demanded of him.

<p>Assumpsit on an alleged acceptance of a bill of exchange and on an alleged promise to accept it. The bill declared on was this: “ Famumsville, March 3d 1842. Six months after</p> <p>date, pay to the order of Peter Farnum, fifteen hundred dollars, value received, which place to account of your obt. servís.</p> <p>Farnum & Wright.</p> <p>To Messrs. Wells & Spring, New York.”</p> <p>The parti 3s submitted the case to the court, on the following agreed statement: On the 3d of March 1842, and for some years previous thereto, Farnum & Wright, the drawers of the bill declared on, were manufacturers of cloth, at a place called Farnumsvil e, in Grafton, in this county. On that day, they forwarded 38 bales of shirting to the defendants, commission merchants in the city of New York, to be sold by them for the benefit of the drawers. On the same day, said Farnum & Wright drew the bill declared on, and sent, per mail, an invoice of the goods, with notice of the said bill, to the defendants, who were domiciled in New York. On the same day, said Farnum & Wright offered the said bill, indorsed in blank by Peter Farnum, one of the drawers, at the banking-house of the plaintiffs, for discount, stating all the foregoing facts, and assuring the plaintiffs that the bill would be duly honored. They had previously, at sundry times, drawn bills on the defendants, which had been discounted by the plaintiffs under the same circumstances, which the defendants had accepted and paid. Whereupon the plaintiffs discounted the bill declared on, of which $ 500 were paid to the drawers, and the balance was carried to their credit as a deposit. The next week, $500 more were paid to the drawers, as part of their said deposit. The balance has never been paid nor demanded; the drawers becoming bankrupts soon after the second payment, to wit, on the 10th or 12th of said March. On the 16th of said March, the plaintiffs, not knowing of the writing or the existence of the letter of acceptance hereafter mentioned, indorsed the bill, by their cashier, and transmitted it to a bank in New York, and that bank caused said bill to be protested for non-acceptance, and, at the maturity thereof, caused it to be protested for nonpayment.</p> <p>On the 8th of March 1842, the defendants wrote the follow ing letter to the drawers: “New York, March 8th 1842, Messrs. Farnum & Wright. Gentlemen : We have your two favors 25th ult. and 3d inst., with invoice of 38 bales shirtings, which shall on arrival receive our best attention.” (Here were inserted remarks on the dull state and prospects of the market.) “ As our market now stands, we should prefer not advancing over 4£ cents on your shirtings. We hope to get, of course, much more than will cover this price ; but we wish to feel ourselves secure under any state of tilings. Your drañ for $1500 will be duly accepted; but in future shipments, please draw at the rate of 4£ cents per yard. We will duly advise you, as we progress in sales. Yours, &c.</p> <p>Wells & Spring.”</p> <p>This letter was mailed at Providence, R. I., and received by said drawers, at Grafton, on the 10th or 11th of the same month, and was afterwards delivered by them to the plaintiffs, as evidence of the acceptance of said bill.</p> <p>The following statutory provisions are in forcé in the State of New York : “ No person within this State shall be charged as an acceptor on a bill of exchange, unless his acceptance shall be in writing, signed by himself or his lawful agent. If such acceptance be written on a paper other than the bill, it shall not bind the acceptor, except in favor of a person to whom such acceptance shall have been shown, and who on the faith thereof shall have received the bill for a valuable consideration.” 1 Rev. Sts. of N. York, Part II. c. IV. Tit. II. <§,<§, 6, 7.</p>

Assumpsit on a policy of insurance against damage or loss by fire.

The parties submitted the case to the court upon the following facts: Jonathan Wheeler, of Grafton, by his last will, (which was duly proved and allowed,) after disposing of part of his property, made this provision ; to wit, “ the residue and remainder of my estate I order divided into two equal shares, and give and devise the same as follows, viz. one share or half to the child or children, now born or hereafter to be born, of my niece, Hannah A. Mills, (wife of Lewis…

Petition for a writ of prohibition. The petitioner alleged that Charles A. Hebard, on the 8th of April 1843, presented his petition to… Held: and that J. M. Fales was duly chosen his assignee : That at the second meeting of said creditors, held on the 9th of May 1843, and by adjournment on the 5th of June following, said Hebard applied to said judge for a discharge from his debts but that a majority of his creditors, who had proved their debts, objected to such discharge,…

Writ of error, brought by the administrator of tne estate of Asa Waters, which was insolvent. The defendant in error presented to the commissioners, appointed to receive and examine the claims against said estate, a claim exceeding $300, and appealed from their decision thereon to the court of common pleas; and at the last March term of that court, said claim was determined in favor of the claimant, and judgment was thereupon rendered for him.

Assumpsit on this agreement: “ In consideration of a settle ment this day made between William F. Barnes and Aaron P. Barnes, and myself, I hereby agree to pay all costs accruing on the papers of reference between us, entered in the court of common pleas at Worcester, and recommitted to the referees, to be taxed by the court, as court fees. Ephraim Parker. Athol.

<p>Writ of entry to foreclose a mortgage of several pieces of land. The mortgage deed declared on was made to the demandant’s intestate, Jeremiah Green, by Charles Green, one of the tenants, on the 16th of September 1831, to secure payment of a note of the same date for $2000 and interest. The case went to trial on an issue joined by the demandant and Charles W. Green, the other tenant, as hereinafter stated in the opinion of the court.</p> <p>Besides the mortgage declared on, the demandant gave in evidence a mortgage of the demanded premises made by Isaac Green, on the 9th of June 1826, to William Patten, and duly assigned to said Jeremiah Green after the date of said Charles’s mortgage to him. The tenant (Charles W. Green) gave in evidence the discharge of said Charles Green, under the insolvent law, and a deed of his assignee, dated October 27th 1840, conveying to said Charles W. the equity of redemption of the demanded premises; also a mortgage of the same premises, made by said Charles Green to Brewster & Pierce, on the 28th of June 1838, and an assignment thereof to said Charles W.</p> <p>Among other evidence, given by said tenant, was a mortgage deed made by him to said Jeremiah Green, on the 7th of November 1839, to secure a note of the same date for $500; which note (it was admitted) was paid to the demandant, as administrator of said Jeremiah, on the 11th of September 1841.</p> <p>John W. Proctor, a witness for the demandant, testified that in 1839 he had in his possession the mortgage (above mentioned) from Charles Green to Brewster & Pierce, and that said Charles called on him several times, for the purpose of purchasing that mortgage and the note secured by it, and represented himself as acting for said Charles W.; that the witness inquired of him respecting the other incumbrances on the land, and sold the said mortgage and note, and assigned them to said Charles W., taking in payment therefor said Charles W.’s note for $475, indorsed by said Jeremiah Green: That said Charles, in some of the conversations concerning the purchase of said mortgage and note, stated to the witness that there was a previous mortgage of the same lands to Jeremiah Green for $2000, and interest thereon to the amount of $400, and another mortgage to Joseph B. Wilson for $1000, and interest amounting to $200; that said Charles W. could afford to pay $400 for the assignment of Brewster & Pierce’s mortgage, and that nu other person could afford to pay any thing for it. That it was stated to him, by said Charles, that four acres of the mortgaged land had been sold to Elisha Green, and another piece to Thomas Gould, and that there was due, on said mortgage, to Jeremiah Green, the sum of $2400: That Charles W. Green was present, once or more, when said Charles was negotiating with the witness, but that said Charles “ did the talking; ” and the witness was not confident that Charles W. was present when said Charles made the statements above mentioned.</p> <p>The tenant objected to the admission of the statements , made to the witness by Charles Green, but the objection was overruled.</p> <p>Joshua Prescott, a witness for the demandant, testified that he, as counsel for Jeremiah Green, had “ done writing for him for several years; ” that said Jeremiah, in November 1839, requested him to call on Charles Green ; that he accordingly did so, and told him that Jeremiah was dissatisfied, and wished for the interest on the $2000 note secured by mortgage, and also a part of the principal, and that he would sue said Charles, unless a payment should be made: That reference was made by the witness, in his conversation with said Charles, to the mortgage declared on in the present suit, but that he did not remember that any precise amount was stated as due from Charles to Jeremiah.</p> <p>Thomas Gould, a witness called by the demandant, testified that he purchased of Jeremiah Green a lot of land mortgaged to him by Charles Green, and paid $ 500 for it; that Charles Green came to him and told him that Jeremiah was greatly in want of money, and wished him to buy it, saying that Jeremiah was unwell and not able to come and see the witness; that said Charles brought the deed of said land to the witness, and took the $500, and said he would carry it to Jeremiah, saying that it was “ to go to sink a debt which he ” (Charles) “ owed to Jeremiah.”</p> <p>The demandant put into the case a bill and answer, and the evidence taken, m a suit in equity wherein said Charles W. Green was plaintiff, and the present demandant was defendant A part of this evidence was a deposition given by said Charles Green.</p> <p>On the note for $2000, secured by the mortgage declared on by the demandant, were several indorsements of payment; but the testimony left it doubtful whether they were in the hand writing of Jeremiah Green or of Charles Green.</p> <p>The demandant insisted, that whatever sums of money had been received by Jeremiah Green, as proceeds of the lands mortgaged to him by Charles Green, had been applied to pay the debt secured by the Patten mortgage, and that he had a right so to apply them. The tenant thereupon moved for a postponement of the trial, on the ground of surprise; as no notice had been given to him that the Patten mortgage would be introduced into the case, or that any such application of said moneys would be insisted on. The court overruled the motion, and the trial proceeded.</p> <p>The tenant gave evidence tending to show that the $ 1000, for which the above mentioned mortgage to Joseph B. Wilson was made by Charles Green, was paid to Jeremiah Green for the purpose of reducing the sum due on his aforesaid mortgage ; and that wood and timber, growing on some of the pieces of land mortgaged to Jeremiah Green, had been cut off and sold by him, and the proceeds applied towards the mortgage debt. (The particulars of the evidence given by the tenant, as to payments, &c. are not necessary to the understanding of the points decided by the court.)</p> <p>The tenant insisted that he had the right, which was originally the right of Charles Green, to apply the proceeds of all the mortgaged lands, sold by Jeremiah Green, to the discharge of the debt secured by the mortgage made by said Charles to <aid Jeremiah ; that Jeremiah had no right to apply those pro:eeds to any other purpose, without the consent of Charles; that eremiah had not in fact applied or attempted to apply them itherwise ; and that the consideration, mentioned in the deeds given by Jeremiah, of the lands so sold by him, was to be taken, in the absence of all controlling evidence, as showing the amount of those proceeds.</p> <p>The judge before whom the trial was had instructed the jury, “ that they, under the circumstances of the case, should decide what amount was paid by Jeremiah Green for tue Patten mortgage, and that interest should be charged upon that sum from the time of its payment; that they would then decide what sums said Jeremiah had received, and that they might apply the sums so received by him towards paying and satisfying the amount so paid by him for said Patten mortgage, and the interest thereon ; and that the balance, if any, would go towards payment of the mortgage from said Charles to said Jeremiah : That said Jeremiah had a right, without the consent of said Charles, to apply the proceeds of said lands, mortgaged to him by said Charles, to the payment and satisfaction of the debt secured by the Patten mortgage, said Charles not having requested him, when said moneys were paid, to apply them towards payment of the debt secured by the mortgage made to him by said Charles.”</p> <p>The judge also permitted the demandant to give in evidence the Patten mortgage, and instructed the jury, that they might apply the moneys, received as aforesaid, to the payment thereof, though objected to by said Charles W. (as above mentioned) on the ground that no notice had been given him of any such matter.</p> <p>The jury found, by their verdict, that $2380 were due on the mortgage from Charles Green to Jeremiah Green. The said Charles W. then moved “ that the verdict be set aside and a new trial granted, on account of the rulings and instructions aforesaid; and because the verdict was against the evidence and the weight of evidence in the case, and not according to the law applicable thereto; and because the jury did not find, by their verdict, the issue submitted to them.”</p> <p>The argument was had at the last October term</p>

Scire facias against the indorsers of a writ sued out by Benjamin Melvin, when he was not an inhabitant of this State, against the plaintiffs, in an action in which they recovered judgment in this court,-at the October term 1842, for $201-52 costs.

Trespass upon the case. The writ was dated March tith .1841, and was served May 31st 1841.

Bill in equity to redeem eight square rods of mortgaged land situate in Littleton.

Writ of error to reverse a judgment of the court of com mon pleas, in an action of trespass originally brought before a justice of the peace by the plaintiff in error. The opinion of the court exhibits the whole case.

<p>The police court in Lowell, since a clerk thereof was appointed, pursuant to St, 1838, c. 147, has authority, under the act of congress passed on the 14th of April 1802, to receive the declaration, by an alien, of his intention to become a citizen of the United States.</p>

This was a petition for the acceptance and confirmation of a verdict of a jury, awarding damages to the petitioner for injury sustained by him in.consequence of the alteration of the grade of a public highway in Lowell, called Church Street.

Assumpsit to recover the amount of an assessment on the defendant, for the expense of a sidewalk constructed by the plaintiffs, in front of his land, in Lowell.

This was a writ of entry, sued out on the 14th of September 1843, to recover five undivided sixth parts of a tract of land in Charlestown, in which the demandant counted on his own seizin and a disseizin by the tenants within twenty years. The tenants pleaded non tenure, and disclaimed as to a part described, and nul disseizin, as to the residue. The demandant admitted the disclaimer, and tendered the issue joined.

Debt on a replevin bond. The writ was dated May 19th 1842, was returnable to the then next October term of this court, and was served on the 29th of September 1842. The parties submitted the case to the court on the following agreed statement: On the 18th of August 1838, the plaintiff, as deputy sheriff, seized certain personal property, viz. horses, wagons, household furniture, &c. on a writ and execution, in favor of Ward & Glover, against Eli Robbins.

<p>87 the true construction of the Rev. Sts. c. 51, $ 1 when that part of a road which is wrought for travelling is hidden by snow, and a path is beaten and travelled on the side of the wrought part, persons meeting on such beaten and travelled path are required to drive their vehicles to the right of the middle of such path.</p>

Assumpsit on the money counts, to recover $ 1650-38, the balance of a sum deposited in the Phoenix Bank. Writ dated October 5th 1842. At the trial in the court of common pleas, before Merrick, J the plaintiff offered in evidence a book purporting to be the ledger of the Phoenix Bank, and called the president of the bank as a witness, who testified that he believed it to be such ledger, .and that it exhibited correctly the balances due to depositors.

Assumpsit for money had and received. The case was submitted to the court on an agreed statement, as follows: The plaintiff} on the 9th of May 1840, advanced and delivered to the defendants $200, and took in return a written note or memorandum in these words: “Lowell, May 9th 1840. For value received, the First Methodist Episcopal Society in Lowell promise to pay Lydia Shaw,' or order, the lawful interest on the sum of two hundred dollars, annually, on the first day of May.

This was an action of assumpsit, commenced on the 18th of October 1841, by Seth Ramsdell, the plaintiff’s testator, to recover damages for the alleged breach of an agreement, dated July 2d 1834, and hereinafter set forth. The declaration contained a count for money had and received, and also a special count on said agreement.

The defendant was indicted for permitting the exercise of an unlawful game in a house occupied by him under a license as an innholder. The indictment contained two counts. To the first count the defendant pleaded not guilty, and, on a trial in the court of common pleas, was acquitted by the jury.

This, case came before the court on exceptions to the admission of evidence by the judge before whom the defendant was tried and convicted in the court of common pleas.

<p>William Fisk and Aaron Rice were indicted for levying a nuisance. The indictment alleged that there was a certain square piece of land, situate in Cambridge, and containing about two acres, which, long before the 10th of June 1841, had been, and still ought to be, kept and to remain an open area, and public common, for the general use and convenience of all the citizens of the Commonwealth ; and that the defendants, on said 10th of June, did unlawfully and injuriously erect, build, and put, upon and around said piece of land, a strong and high fence, and did continue, keep and maintain the same until the day of the finding of said indictment; whereby the said piece of land was, during all the time aforesaid, obstructed and shut up, &c.</p> <p>Upon the evidence introduced at the trial in the court of common pleas, the jury were instructed, pro forma, that the defendants had no right to enclose said piece of land. The jury thereupon found them guilty, and they alleged exceptions to the instructions.</p> <p>The facts of the case, and the grounds of argument, are fully stated in the opinion of the court.</p>

<p>The provision, in the Rev. Sts. c. 126, $ 27, for the punishment of embezzlement committed by any cashier “ or other officer ” of a bank, includes embezzlement committed by the president and directors of a bank.</p> <p>The officers of banks are not included in the Rev. Sts. c. 133, § 10, which provide, that in the prosecution of the offence of embezzling the money, &c. of any person, by his clerk, servant, or agent, it shall be sufficient to allege generally, in the indict ment, an embezzlement of money to a certain amount, and to give evidence, on the trial, of any such embezzlement committed within six months next after the time stated in the indictment.</p> <p>An indictment against an officer of a bank, for embezzling property belonging to or deposited in the bank, must charge a specific act of fraud, and the defendant must be proved guilty of the specific offence charged; and not more than one offence can be well alleged in one count of the indictment.</p>

<p>When the officer, who presides at the trial, by a sheriff's jury, of a question of, damages alleged to be caused by the laying out of a road, reports the evidence, and certifies to the court of common pleas, with the verdict, the decision or direction given by him to the jury, such report is a part of the record $ and an appeal lies, under St. 1840, c. 87, $ 5, from the decision of that court accepting or setting aside the verdict.</p> <p>A straight turnpike road, which twice crossed a circuitous county road, was laid out four rods wide, through the land of B., leaving a strip of his land between the turn pike and the county road: B. afterwards conveyed this strip to P., and house lots, on the other side of the turnpike, to C and others, bounding each of them, on one side, “ by the turnpike road . '' P. erected a building on the strip thus conveyed to him, and after he had occupied it more than thirty years, the turn pike road was discontinued: Thereupon a town way was laid out, two rods wide, over a part of the land formerly within the limits of the turnpike road, and within seven feet of the line thereof next to P.'s strip, and P. made a claim on the town for damages alleged to be thereby sustained by him. Held, that B.'s deed to P. did not convey any part of the land within the limits of the turnpike road, and that P. was not entitled to damages.</p> <p>Midividuals acquire no right of possession, adverse to the owner of the soil, by long use of that part of a public road which is not occupied as a travelled path.</p>

<p>Assumpsit to recover $110-70, of which the sum of $99-14 was for the labor of the plaintiff and M. Healy, his apprentice, and $11-56 for materials furnished to the defendant.</p> <p>At the trial in the court of common pleas, before Washburn, J. “ the plaintiff, to prove the latter sum, introduced his account book, with his suppletory oath. To prove the charge of $99-14, he introduced a book, called a time book, with his suppletory oath that the entries therein were made at the time they purported to be made, and that the said book was the only one upon which he had made entries against the defendant for labor.” This time book was kept in the following form:</p> <p> </p> <p>“ The defendant objected that it was not competent for the plaintiff to testify, in answer to the inquiry of his counsel, that his entries upon his account book were true. But the judge permitted the inquiry, so far as it related to the original entries made therein by the plaintiff, and to prove which the book was offered ; and it was answered affirmatively. The defendant also objected to the admission of the time book as evidence to the jury to prove the number of days of the labor of the plaintiff and the said ' Healy. But the judge ruled that the said book, with the oath of the party," was competent evidence for the jury ; it being alleged that the plaintiff would prove aliunde that the plaintiff, with his apprentice, did labor for the defendant. To which rulings the defendant excepted.”</p>

<p>\ court in this Commonwealth has no authority to cause an entry of u neither parly " to be entered on its docket, on the motion of the plaintiff, and on his exhibiting an instrument purporting to be signed by the defendant and him, and acknowledging that the action is settled, if the defendant denies the execution or the validity of such instrument.</p> <p>after a plaintiff has become nonsuit, if the defendant moves for the taxation of costs, the court has authority to decide upon any agreement alleged to have been made by the parties, whereby the defendant waived costs, and to refuse to allow him costs, on its being shown that he has already received them, or has made a valid agreement not to claim them. So, when a defendant is defaulted, the court has the like au thority, on the plaintiff's moving for the taxation of costs.</p>

<p>An appeal from the judgment of the court of common pleas on a plea in abatement was entered in this court, and dismissed for want of jurisdiction. Held, that the court of common pleas might order the case to be brought forward upon its docket, on motion of the appellee, and might proceed to the final disposition of the action.</p> <p>A., being deceived by false representations made to him by B., sold goods to 13., and took his promissory note for the price: B. sold part of the goods, and received payment therefor: A. rescinded the contract of sale, on the ground of the fraud practised on him by B., and brought an action against B., to recover the money received by him for the goodswhich he had sold, and directed the officer to attach B/s property, but did not specify the property to be attached: The officer attached, on A/s writ, and on other writs against B., the residue of the goods sold to him by A., and A. entered and prosecuted his said action: A. afterwards gave notice to the officer that he had rescinded the contract of sale to B., and after demanding of the officer the goods which he had thus attached, brought an action of replevin against him to recover those goods. Held, that A. had not affirmed any part of the contract of sale to B., and that he was not precluded from maintaining his action of replevin against the officer.</p>

Trespass for breach and entry of the plaintiff’s close by the defendant’s horses. Trial in the court of common pleas, June term L842, before Strong, J. who signed the following bill of exceptions: It was proved, or admitted, that the acts alleged in the writ to be trespasses were done.

Writ of entry to foreclose the right of redeeming the mortgaged premises described in the count. The demandant counted on his own seizin in fee and in mortgage.

<p>Assumpsit to recover damages of the defendants, on the facts hereinafter stated. The trial was before Shaw, C. J. whose report thereof was as follows:</p> <p>On the first of October 1841, Seth Ames, being the owner of a lot of land in Lowell, not then built upon, and lying east of La.wrence Street, and between that street and Concord River, by deed duly executed and recorded, granted to the defendants the right and privilege of laying and constructing a drain or sewer, through said lot, to said river. The habendum contained a provision to this effect: “ Subject only to the condition, that they are to indemnify, and save harmless, myself, my heirs and assigns, and all persons owning or occupying the house in which Thomas Hopkinson now lives, or the estate now belonging to me on the west side of Lawrence Street, from all. damages, loss, or harm, that may arise or be occasioned by the construction, laying down, or use, of said sewer or drain.”</p> <p>The defendants accepted this grant, and, in the months of November and December following, proceeded to dig a trench and lay a drain through the same ; in doing which, it was necessary to make the drain very deep, in some places to the depth of twenty feet, and to make an excavation of consid erable width on the surface.</p> <p>The plaintiff, to maintain the issue on his part, gave in evidence an agreement in writing between said Ames and himself, by which said Ames agreed to sell and convey the said lot of land to him, upon certain terms and conditions therein men tioned, with liberty, in the mean time, to enter and build on the lot; which agreement was made December 28th 1841; also a deed, from said Ames to the plaintiff, of the same lot, dated December 22d 1842, acknowledged June 14th, and recorded June 16th, 1843, by which said Ames conveyed the land in question to the plaintiff, in fee, free of all incumbrances, except the right of said Middlesex Company (the defendants) to lay and maintain the drain aforesaid.</p> <p>The plaintiff then offered evidence to show that he entered and erected two houses on the lot; that the southernmost of these houses was erected pretty near the drain in question, (how near was not exactly shown;) that the cellar was dug, and the foundation walls laid in November 1842; that the house was erected, and partially closed in, before winter, and work done upon it on the inside during the winter; that, towards spring, it was perceived that the southern wall of the house, nearest the drain, had settled several inches, more in the middle than towards the eastern and western ends ; and that it became necessary to raise the. house, on that side, by the aid of screws, and to repair some of the work of the house, which was warped and sprung by means of the settling of the house; by which an expense was incurred, by the plaintiff, to the amount of forty or fifty dollars; and it was contended that the house was damaged, in addition to the cost of repairs actually made} to the amount of $ 100 to $200.</p> <p>The plaintiff called many witnesses, and offered much evidence, which it is not necessary to report, to prove that the settling of the wall in question was directly attributable to its proximity to said drain, and to the loosening of the earth in digging the same; that the drain might have been so laid, and the earth replaced in the trench, by the aid of puddling and ramming, though more expensive, as to make it solid and fit for building on; and that by means of the drain, as it was actually dug and filled in, the plaintiff sustained the damage in question, to the amount of $100 or $ 200, including the damage from straining and weakening the house.</p> <p>The plaintiff’s evidence being finished, the defendants moved the court to order a nonsuit, oh the ground that the plaintifl had not given evidence sufficient to maintain an action of assumpsit against the defendants.</p> <p>The ground on which the plaintiff claimed to maintain his action was, that the- grant from Ames to the defendants being by deed poll, their acceptance of the grant raised a promise, on their part, to do whatever was to be done on their part by the terms of the deed; that the condition being to indemnify and save harmless the said Arnes, his heirs and assigns, from all loss, damage, or harm, arising from the construction, laying down, or use, of said drain, they were bound, as by an express promise, so to do ; that the plaintiff, having become the purchaser of the lot, was the assignee of Ames, and entitled to the indemnity intended to be secured by the condition, and having sustained damage after he thus became assignee, he could maintain this action on such promise.</p> <p>It was admitted that notice of the damage was given by the plaintiff to the defendants before this action was brought, and demand made for repayment, which was refused.</p> <p>It appearing that the whole of the alleged damage was done by constructing and laying down the drain, and filling in the trench, and that this damage was done, if at all, before the plaintiff acquired his title, it was ruled, that this action, could not be maintained ; and a nonsuit was accordingly entered. If the whole court shall be of opinion that this action can be maintained; on the case stated, the nonsuit is to be taken off, and a new trial had.</p> <p>The plaintiff moved for leave to amend, by filing a declaration in trespass on the case ex delicto, if, in the opinion of the court, case, and not assumpsit, would lie. But the judge, being of opinion that an action on the case could not be maintained on the evidence given, the amendment was not allowed. If the motion be renewed, it is to be disposed of in such manner as the whole court may direct.</p>

<p>Writ of entry to recover one undivided seventy eighth part of a parcel of land, and a meeting-house thereon, in Lowell. The demandant made claim under a levy of an execution, which issued on a judgment recovered by him against the Proprietors of the First Freewill Baptist Meeting-house in Lowell. The demanded premises were attached, by the demandant, on the 12th of November 1842, and were levied upon on the 20th of February 1844. No objection to the form of the levy was taken by the tenants.</p> <p>The tenants claimed the demanded premises under the two following instruments: 1st. A lease to them for twenty years,</p> <p>by indenture made on the 19th of May 1841, by the Proprietors of the First Freewill Baptist Meeting-house in Lowell, and executed, on their part, by Nathaniel Thurston, their agent. This indenture was recorded, in the registry of deeds, on the 14th of August 1841. One of the provisions therein was, that upon payment of certain sums of money by the lessees, (the present tenants,) the demised premises should become their absolute property. 2d. An indenture made on the 27th of October 1842, between said Proprietors of the First Freewill Baptist Meeting-house, of the first part, and the tenants,"'of the second part. This indenture was executed, on the part of said proprietors, by Nathaniel Thurston, their agent, and conveyed to the tenants, among other real estate, the premises demanded in this suit, to have and to hold, to them and their successors in office forever, for certain uses and trusts in said indenture set forth.</p> <p>At the trial before Wilde, J. the demandant objected, to the indentures above mentioned, that Nathaniel Thurston, by whom they were executed, as agent of the said proprietors, had no sufficient authority from them to execute the same; and that the elder and deacons by whom said indentures were executed, for said church, were not duly chosen or authorized to execute them.</p> <p>The tenants gave in evidence the records of the Proprietors of the First Freewill Baptist Society in Lowell, from which the following facts appeared: On the 1st of October 1842, Nathaniel Thurston, Lydia Clement, William Gray, and Ira Caverly, members of said corporation, made a written application to Daniel G. Holmes, the clerk of the corporation, to notify and warn a meeting of the proprietors, to be held on Friday, the 14th day of said October, at the Bethel of their house, at two o’clock, P. M., for the purpose of ascertaining and determining whether they would sell the meeting-house, land, &c. to the First Freewill Baptist Church, and to choose a committee or committees to complete the contract and give the church a good title by deed, &c. The notice was given by the clerk, on the said day, 1st of October, warning a meeting to be held on the 14th, agreeably to the application, by posting notices on the church door, and in two other public places in the city. On the 14th of October, agreeably to the notice, the following proprietors attended, viz. Nathaniel Thurston, Ira Caverly, Lydia Clement, Mehitabel Gordon and William Gray. At this meeting, a vote was passed to sell the meeting-house, &c. to the First Freewill Baptist Church; and a committee, consisting of the elder and deacons of that church, attended, and the terms of sale were agreed upon; and it was also voted that the agent of said corporation, Nathaniel Thurston, be authorized to give a deed ot the premises, and to take a mortgage on the meeting-house, to the corporation, or such other security as should hold the corporation harmless until the. purchase money should be paid. The meeting was then adjourned to the next day, to be held at the house of the clerk, at 2 o’clock. The proprietors (whose names are not recorded) met accordingly, and passed sundry votes, not necessary to be here stated, and adjourned to Monday the 17th of the same October, to meet at 3 o’clock, P. M at the house of the clerk; at which time and place they met, and adjourned to the next day, the 18th, at the same place and hour of the day. On the 18th, the record states that a meeting of “ the proprietors ” (whose names are not recorded) was held, and that a report was received from the agent and committee aforesaid, in regard to the sale of the meeting-house, by which the terms of sale were proposed to be varied. This report was accepted, and the agent was authorized to execute a deed in conformity to the report. The meeting was then adjourned to Friday, the 21st of the same October, to be held at the'hbuse of the clerk, at 34 P. M. The meeting was then and" there held accordingly, and adjourned to the 25th of the same October, at the same hour of the day, and at the same place, vVlffer. and where a meeting was held, and adjourned to the* "28th of the same month, at the same hour of the day, and at thé same" place. The meeting was held on the 28th of October, and víasadjourned to the 1st of November 1842, and from that, day tc the 8th of the same month. At the meeting on the 8th ol November, the clerk was requested to notify such of the proprietors, as were not present, of the adjournment of the meeting to the next day, and request their attendance, provided they were in the city ; and also to notify such proprietors that their agent had received proposals relating to the sale of other property, and wished to consult them thereon ; and the meeting was then adjourned to the 9th of said November, at 10 o’clock, A. M. It did not appear what notice the clerk gave of this adjournment. A meeting was held on said 9th of November, at the hour appointed, and was adjourned to 3J o’clock, P. M. on the same day, and was thence adjourned to November 10th, and thence to November 11th. The names of the proprietors who met at the adjournment on the 11th were not recorded ; but the record states that “ the said proprietors met,” and that it was voted, among other things, “ to confirm all the records and proceedings of the said proprietors, which may have been invalid in law, by reason of any legal defect or otherwise, and that the same are hereby confirmed, and the clerk is hereby directed to attest the same.” The meeting was continued by adjournments until December 14th 1842, when it was “ voted to adjourn without day, and the meeting was then adjourned.”</p> <p>It appeared that on the 30th of March 1836, by St. 1836, c. 80, (7 Special Laws, 612,) Nathaniel Thurston, Samuel Folsom, and Abram S. Holbrook, their associates and successors, were made a corporation, by the name of the Proprietors of the First Freewill Baptist Meeting-house in Lowell, with the rights and privileges, and subject to the duties and liabilities,- incident to religious societies in this Commonwealth, with power to hold real and personal estate, the annual income of which, exclusive of such meeting-house as they might erect, with the land under and appurtenant to the same, should not exceed $ 1000 ; provided the same should be appropriated exclusively to parochial purposes: That on the 17th of August 1836, the persons named in said act of incorporation, and their associates, accepted said act, and chose a secretary, president, treasurer and seven directors ■ That in the same month, a committee was appointed to select a piece of land for a meeting-house, and take a conveyance thereof in behalf of the proprietors : That this committee, on the 19th of October following, reported that they had purchased a lot of land on Merrimack Street; and that this report was accepted: That on the 2d of November 1836, a committee was appointed to erect a building on said land ; and that a meeting-house was erected thereon as early as February 1838 : That in 1839, the corporation purchased other lots of land, adjoining their meeting-house: That in August 1840, in consequence of an application made by said proprietors to borrow money of the Lowell Institution for Savings, their records were examined by the solicitor of said institution, and the proprietors thereupon organized anew, under a call of a meeting by a justice of the peace, conformably to the provisions of the Rev. Sts. c. 20, <§>$ 26, 27, and then voted to confirm “ all the record proceedings of the said proprietors which may have been invalid in law, by reason of any legal defect or otherwise,” &c.: It also appeared that the said proprietors afterwards proceeded as before, calling meetings, usually by their clerk, on the application of proprietors, except at the season for their annual meetings. It did not appear, however, that the proprietors ever passed any by-laws -or vote as to the manner of warning their meetings, or any other by-laws, nor that they ever had any assessors or committee authorized to call meetings.</p> <p>It appeared that the yearly income of the meeting-house and stores under it was $ 2000, and that the whole yearly income of the property of the corporation was more than $ 3000.</p> <p>After the tenants had introduced the proprietors’ records, they called Daniel G. Holmes, the proprietors’ clerk, to identify and verify those records, &c.; and he was admitted to testify, although the demandant objected to his competency, on the ground that he was one of the creditors of the corporation, whom the tenants had agreed to pay, on their receiving the conveyance of the demanded premises, &c. under the indenture of October 27th 1842.</p> <p>The demandant objected to the validity of the two indentures above mentioned, on various grounds which need not be here stated. It was, among other things, objected to the indenture of October 27th 1842, that it was not proved that the meeting, at which the making of it was authorized, consisted of a majority of the proprietors. This objection was overruled. The tenants then offered to givé evidence to prove, affirmatively, that a majority of the proprietors was not present, &c. This evidence was rejected. The two indentures were read to the jury, subject to all objections appearing therein, and in said records. The first of said indentures (the lease) was admitted, not as evidence of an independent title under which the tenants claimed, but as evidence bearing on the second indenture.</p> <p>The demandant contended, that the conveyance made by the second indenture was fraudulent and void, as against the creditors of the corporation, being intended to delay and hinder them; but the jury, upon the evidence, and under the instructions given by the judge, found that it was not intended to delay and hinder creditors.</p> <p>A verdict was returned for the tenants, subject to the opin ion of the whole court upon the questions raised by the demand ant at the trial.</p>

<p>The indictment, in this case, alleged that the defendant, on the 15th day of April 1844, “ at Lowell, in the county of Middlesex, had in his custody and possession, at the same time, ten similar pieces of false and counterfeit coin, of the likeness and similitude of the silver coin current within this Common wealth, by the laws and usages thereof, called Mexican dollars, with intent then and there the said pieces of false and counterfeit coin to utter and pass as true, he the said David R. Fuller then and there well knowing the same to be false and counterfeit, against the peace of the Commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>The trial was in the court of common pleas, before Merrick, J. The defendant “ objected to the jurisdiction of the court, and contended that the offence of which he was charged in the indictment was cognizable only in the courts of the United States, where he was liable to be indicted and tried; and that the statute of this Commonwealth, under which he was indicted, was unconstitutional and void in its application to the offence charged in the indictment, and also that it was repugnant to, and in conflict with, the constitution and laws of the United States.” The court overruled the defendant’s objections, and directed that the trial should proceed. The jury found the defendant guilty, and he alleged exceptions to the ruling of the court.</p>

Assumpsit on the money counts, and upon the following certificate: “ (L. S.) Second Universalist Meeting-house. Shares No. 178, 179, 180, 181 —one hundred dollars.

Trespass against a constable, for arresting the plaintiff, and carrying him before the police court in Lowell, on the 3d of May 1843. At the trial in the court of common pleas, before Washburn, J. the defendant admitted the arrest and detention of the plaintiff, and offered in evidence, in justification, the following warrant 2 “ (L. S.) Lowell, ss. To the sheriff of the county of Middlesex, or his deputy, or to all or any of the constables of Lowell in said county, Greeting.

<p>Assumpsit to recover $25, fees for piloting the defendants’ ship Awashonks from Tarpaulin Cove to Woods Hole. At the trial in the court of common pleas, in the county of Dukes County, before Warren, J., the defendants admitted that the plaintiff received from the governor a warrant as pilot, dated December 15th 1838. The terms of this warrant, so far as they affect this case, were these: “ We appoint you to be a branch pilot for the coast of Martha’s Vineyard and over Nantucket Shoals, with all the powers and duties incident to said office, or which may be incumbent on you ; and you are hereby authorized to take and receive, as fees for piloting vessels, as follows: To the ports of Holmes Hole and Falmouth, for vessels drawing not more than twelve feet of water, twenty dollars; more than twelve feet, and not more than fifteen feet, twenty five dollars; more than fifteen feet, thirty dollars. For vessels outward bound, half of the preceding rates.”</p> <p>It was also admitted by the defendants, that their said ship, m the evening of December 11th 1843, came in from sea, from a whaling voyage, and came to anchor in Tarpaulin Cove, and furled her sails, without having been boarded or hailed by any pilot; that after said ship had so anchored on the usual anchorage ground, the plaintiff went on' board, announced himself as a pilot, and claimed the right to pilot the ship to Woods Hole, which was the place of her destination ; that thé master of the ship declined to employ him as a pilot, or to recognize his right, as such, to carry the ship to W°°ds Hole; that said master informed the plaintiff that he should go to Woods Hole and employ another pilot; that on the next day, the master procured another pilot, and on thé day following proceeded with his ship to Woods Hole in charge of said other pilot; that the plaintiff remained on board the ship, from the time of his first boarding her, until her arrival at Woods Hole, and did not, at any time, decline to assume the pilotage of her.</p> <p>The defendants also admitted, that the harbor of Woods Hole is within the limits of the town of Falmouth, but contended that the plaintiff was not authorized by the warrant aforesaid to act as a pilot for ships bound to Falmouth. But the court ruled otherwise.</p> <p>Tjie defendants then offered evidence, to show that there is another ship harbor in the town of Falmouth, at “ Falmouth Town,” so called, four or five miles from Woods Hole, and that by the terms, “ port of Falmouth,” the last mentioned harbor is generally understood. The court rejected this evidence, and instructed the jury that, upon the facts admitted as aforesaid, the plaintiff was entitled to a verdict, which the jury returned accordingly. The defendants thereupon alleged exceptions.</p>

<p>This was a bill in equity, in which James Bartlett, and the administrators of James Spooner and of Jacob Covington, alleged that he and their intestates, on the 3d of July 1828, agreed with the defendants to form a company for the purpose of facilitating the communication between Boston and Plymouth, and, in order thereto, agreed to purchase a steamboat and erect a wharf in Plymouth, at a cost of $ 10,000 : That said intestates and the defendants, in pursuance of said agreement, on said 3d of July entered into a written agreement to take a certain number of shares each, and pay $ 100 for each share to the agent of the company, and that the company should be organized whenever $8000 should be subscribed : That each ol said intestates and defendants subscribed for a certain number of shares, (mentioned in the bill:) That after $8900 were subscribed, viz. on the 5th of August 1828, said intestates and defendants met in Plymouth, and organized the company, after due notice to each one of said associates ; at which meeting, a majority in interest of said associates were represented : That after said organization, the associates chose the plaintiff Bartlett and said intestates a committee, and gave them full power to collect the money of the subscribers, and to carry into effect the objects of the association, according to said committee’s discretion : That said committee accepted the office, and collected the subscription money, (including the sums subscribed by themselves,) to the amount of $8900: That said committee, in August 1828, for the purposes of said association, purchased a steamboat, called the Lafayette, for $4025, and in Septembei following, purchased of Thomas and William Jackson, for $3000, an old wharf and the contiguous flats, and erected a wharf, running out into deep water, at a cost of $7500, suitable and necessary for the purposes of the association: That all these acts were well known to said associates, and approved by them ; and that, under these arrangements, said steamboat ran between Boston and Plymouth, transporting passengers and merchandize, till the autumn of 1830: That on the 22d of March 1831, in consequence of the unprofitableness of the business, and the great excess of the debts of the partnership over and beyond the property, and of the large sums advanced by said committee beyond their share of the loss, the associates met and voted to close the business, and chose a committee to sell the wharf and steamboat; and that the steamboat, with her apparatus, was sold at auction for $1040, which sum went into the committee’s hands : That authority to sell the wharf was not given by the associates till December 30th 1833, when, at a meeting, they by vote requested the committee to sell the wharf, flats, and stores, at auction, in not less- than five lots: That the committee failed of success in selling the same, and that the same still remain unsold.</p> <p>The plaintiffs further alleged, in their bill, that in purchasing said boat, and the flats for a wharf, and in building the wharf, and in running the boat, according to the desire and direction of the associates, and their own best discretion, the said Bartlett, Spooner and Covington, as such committee, made large advances to the partnership, out of their own private funds, viz, $12,356-76, over and beyond the $8900 above mentioned, and over and beyond all the earnings of the boat; so that, on the 1st of August 1837, it required a payment of $138-84 on each share subscribed for, to be contributed, in order to pay the debts of the partnership, and equalize the loss among all the partners ; and that each of the defendants was liable to contribute $138-84, and interest, on every share held by him : That the partners had, from the commencement of the business, been informed of their agents’ doings and advances, and had been requested to contribute their share to equalize said loss; but that the defendants had neglected so to do : That the defendants had acknowledged their liability to contribution ; especially on the 22d of March 1831, at a meeting then held, when they accepted a report of a balance of debts against the partnership, reported to be $8411; and on the 7th of May 1831, when, at a meeting then held, they voted an assessment of $ 50 per share, to be appropriated to pay the plaintiffs, as the disbursing agents of the boat, for their advances ; though said vote was afterwards reconsidered, without any collection being made.</p> <p>The prayer of the bill was, that the property of the partnership might be sold; and that the accounts might be adjusted, to ascertain the amount of the defendants’ respective liabilities; and that said amounts might be decreed to be paid to the respective plaintiffs, according to the sums due to each of them.</p> <p>The answers of twenty five of the defendants admitted that • they, with said Bartlett, Spooner and Covington, on the 3d of July 1828, signed the following agreement, and no other: “To facilitate the communication between Boston and Plymouth, it is deemed necessary that a steamboat be employed, and a wharf erected in Plymouth, the cost of all which is estimated at ten thousand dollars. Now, to carry into effect this object, it is agreed by the subscribers hereto, that they will take the number of shares set opposite their respective names, and will pay for each share one hundred dollars, to such person as may be appointed by a majority of interest; and that a meeting of the subscribers may be called, to organize the company, by any two of them, whenever the sum of eight thousand dollars shall have been subscribed: ” That some of the persons, who signed said agreement, assembled on the 5th of August 1828, and passed the votes mentioned in the plaintiffs’ bill; but they denied that notice of said meeting was given as in the bill is alleged, or that a majority in interest of those who signed said agreement were present or represented, or that those who were present or represented had authority to pass said votes.</p> <p>The defendants admitted that the committee, mentioned in the bill, received of those who signed the aforesaid agreement the sums set against their respective names, $8900 in all, but denied that the committee purchased said steamboat, wharf, and flats, for any of the subscribers to said agreement, except for the committee themselves; and they averred that the committee purchased said boat for their own use, and enrolled and registered it as their own, on the 16th of September 1828; and that the committee purchased the wharf and flats, and expensive stores, without leave of the defendants, or of any signer of the agreement aforesaid, except their own, and took a deed thereof, conveying the same to them alone, without mention therein, even that said committee were to hold the same to the use of, or in trust for, the signers of said agreement; and that after the death of said Jacob Covington, said Bartlett and Spooner, survivors of said committee, viz. on the 25th of April 1837, conveyed said wharf and stores to T. Jackson, jr. in mortgage, without any authority from the defendants.</p> <p>The defendants denied that said committee ran said steamboat on the defendants’ account, and alleged that the committee, with Josiah Robbins, Charles Brown, and Daniel Jackson, jr. ran the boat on their own account, and agreed in writing that they six alone would share the profit and loss; which agreement was as follows: “This agreement made this 12th day of November, in the year of our Lord 1828, by and between Josiah Robbins and Daniel Jackson, jr. of Plymouth, in the county of Plymouth and Commonwealth of Massachusetts, and Charles Brown of Boston, in the county of Suffolk, and State aforesaid, on one part, and James Spooner, Jacob Covington and James Bartlett, jr. of Plymouth, in the county of Plymouth, and Commonwealth of Massachusetts, on the other part, witnesseth, that whereas the said Spooner, Covington and Bartlett, are a committee to purchase a location and build a wharf in Plymouth, and purchase and establish a steamboat to run between Plymouth and Boston, for and in behalf of an association of subscribers for that object; and whereas it is probable that the said Spooner, Covington and Bartlett, in pursuance of said object, may find it necessary to contract debts, on account of said wharf and steamboat, over and above the amount subscribed for that purpose, it is therefore agreed that we, the said Robbins, Jackson and Brown, do hereby agree, that in case the contracts of the said committee, for the abovesaid wharf and steamboat, shall exceed the amount subscribed for that purpose, then we will bear and pay to said Spooner, Covington and Bartlett, one half of the amount that their said contracts for the said wharf and steamboat exceed the amount subscribed for that purpose. It' is the mutual agreement of the parties hereunto, that the above contemplated advances shall be paid equally by the sub scribing persons, and that all profits or losses, arising from such advances, shall be divided or borne equally by the subscribers hereunto. To the full and faithful performance of all the within agreements, we respectively bind ourselves, our heirs, executors and administrators.</p> <p>“ In testimony whereof, we have hereunto set our hands and seals.</p> <p>“ James Spooner, [L. S.] Jacob Covington, [L. S.] James Bartlett, jr. [L. S.] Josiah Robbins, [L. S.] Daniel Jackson, jr. [L. S.] Charles Brown, [L. S.] ”</p> <p>The defendants averred, that on signing the aforesaid agreement of July 3d 1828, it was understood that $ 100 per share was the extent of each signer’s liability, and that said committee were not authorized to run the defendants into debt, nor to expend over $ 100 per share subscribed; and that the parties to the aforesaid agreement of November 12th 1828 took on themselves the liabilities of running in debt, and that the defendants never ratified or confirmed the incurring of debts beyond what $ 100 per share would pay.</p> <p>The defendants (among many other things not necessary to be here stated) denied the equity of said committee’s conduct, in taking said $8900, subscribed and paid as aforesaid, and paying therewith for the said wharf and flats, and taking a deed thereof to themselves, and thereby violating their trust, and embarrassing the defendants in coming to the possession of their rightful property therein.</p> <p>The case was heard on the bill and answers, and the argu •nent was had at the last October term.</p>

<p>This was an action on the Rev. Sts. c. 25, $ 22, commenced in this court, to recover $400 damages, alleged to have been sustained by the plaintiff, in consequence of a defect in a highway, which the defendants were by law obliged to repair</p> <p>When the case came on for trial before Hubbard, J. the defendants moved that the action be dismissed, on the ground that the court had no jurisdiction, because neither the plaintiff, nor any one in his behalf, had, before the service of the writ, made oath or affirmation, before a justice of the peace, as required by St. 1840, c. 87, § 1, that the matter sought tobe recovered actually exceeded in amount the sum of $300. The plaintiff resisted this motion, on the ground that, by said statute, this court has original and exclusive jurisdiction of “ all actions respecting easements on real estate.” But the judge ruled, that the remedy against towns for defects in ways, provided by the Rev. Sts. c. 25, was not within the purview of St. 1840, c. 87, § 1, and directed the action to be dismissed, subject to the opinion of the whole court.</p>

<p>Assumpsit on a policy of insurance, dated. December 19th 1839, in these words: “ The President and Directors of the Bedford Commercial Insurance Company do, by these presents, cause John S. Bates to be assured, lost or not lost, fourteen hundred dollars on the outfits of barque Volante, from Rochester to wherever she may go on a whaling voyage, with liberty to touch at all ports or places for refreshments, and back to Rochester, commencing the risk the 13th day of October 1839.”</p> <p>At the trial before Hubbard, J. the plaintiffs offered to prove that the barque and her outfits, mentioned in the policy, were, at the time when application was made to the defendants, and when said policy was issued, owned by the plaintiffs, according to her register; the said John S. Bates being an owner of an inconsiderable part only: That said Bates was the plaintiffs’ agent for procuring the insurance, and that this fact, and also the ownership, as before mentioned, were then known to the directors of the insurance company: That said Bates applied to said directors for insurance, to the amount mentioned in the policy, in behalf of all said owners; that the said directors agreed to insure for all the owners ; and that it was the inten tion of all the parties, in making the policy as it was made, to cover the interest of all the owners, by the insurance.</p> <p>The defendants objected to the admission of this evidence, and the judge rejected it. A verdict was then taken for the defendants, to be set aside, and a new trial granted, if, in the opinion of the whole court, said evidence ought to have been admitted. Otherwise, the plaintiffs to have liberty to amend, by striking out all their names, except that of said Bates.</p>

<p>Assumpsit on a promissory note, dated May 24th 1837, given by the defendant to the plaintiffs, payable on demand The action was commenced on the 5th of December 1843, and the defendant relied on the statute of limitations.</p> <p>At the trial in the court of common pleas, before Warren, J. the plaintiffs gave in evidence the note described in their declaration, on which were two indorsements. The first was this : “Received, December 7th 1837, fifty dollars.” The second was as follows: “ April 5th 1839. Received Cotton Mill order, in part, sixteen dollars and sixty cents.” Both these indorsements were admitted to be in the hand writing of one of the plaintiffs.</p> <p>The plaintiffs then offered in evidence the following paper, “ Messrs. Waterman & Vaughan. Wish you to pay Thomas E. Burbank twenty two dollars and thirty eight cents, and charge the Cotton Mill. April 5th 1839. James Jackson.”</p> <p>On the back of this order, and in the hand writing of the defendant, were these words : “ Received the within as specified. Thomas E. Burbank.”</p> <p>The plaintiffs offered no further evidence ; but they produced their books of account, which they alleged would show all the business transactions between them and the defendant, and offered them to the defendant to use on the trial. This offer the defendant declined.</p> <p>The court ruled, “ that upon this evidence it was not competent for the jury to find a verdict for the plaintiffs, and instructed them accordingly.” A verdict was returned for the defendant, and the plaintiffs alleged exceptions to the said ruling and instruction.</p>

Writ of entry, dated February 2d 1843, to recover possession of thirty acres of land in Middleborough, part of the farm formerly owned by Elijah Thomas. The demandant claimed this land as an estate of inheritance from her father, Caleb Thomas, or her grandfather, Elijah Thomas.

<p>Writ of entry, dated April 7th 1844, to recover four undivided sixth parts of three parcels of land in Scituate, formerly part of the estate of Timothy White, and of which he died seized!</p> <p>At the trial before Hubbard, J. it was agreed by the parties that Timothy White died on the 5th of April 1824, leaving six children, namely, Timothy his oldest son, Almira, Catharine Oakman, Sarah, Howard, and Joseph who was a minor at the time of his father’s death. The four latter were the demand-ants in this action.</p> <p>The tenant, to maintain his defence, showed an application, made to the judge of probate by one or more of the heirs of Timothy White, for a division of his real estate; and also offered in evidence a copy of the return of a division thereof, bearing date September 7th 1824, and signed by John B. Turner, Samuel A. Turner and Jesse Dunbar, purporting to be made “ pursuant to a warrant from the judge of the probate of wills for the county of Plymouth, after giving notice to all persons interested,” and after taking a view of said estate, and “ finding that it could not be divided into six equal parts without manifest injury to the whole.” In this return, the committee stated that, “ by the request of all interested,” they had “ divided the same as follows: ” To Timothy White the homestead, containing about twenty acres ; also one acre back of the new house, and also the great pasture ; (with metes and bounds to each tract;) “ to have, hold and enjoy the same, on condition that he shall pay to his sister Catharine Oakman $ 524-29; to his brother Howard White $524-29; to his brother Joseph White $219-29; to his sister Almira White $474-29; and to his sister Sarah White $279-29.” The sums above directed to be paid by Timothy to Catharine O. and Howard, were assigned to them, respectively, as their share of said estate. To Almira, Sarah and Joseph, severally, the committee assigned and set off certain other lands which belonged to said Timothy, their father, which Zands, together with the sums directed as above to be paid to them, severally, by said Timothy, their brother, were stated to be the full share of each of them in said estate.</p> <p>The copy of this division was verified by the register of probate, who testified that it was duly recorded ; that he had examined the books in the probate office, and could not find on record any warrant for the division of said estate, but that a blank space for it had been left on the record; that he had also searched the files of the office, and could find no warrant on file; but that he found the original return of che committee who divided said estate. On this return was the following entry: “Plymouth, ss. September 7th 1824, The foregoing division of the real estate of Timothy White, deceased, having been sworn to as certified on the warrant, and the same being duly considered, is hereby ratified and confirmed. Wilkes Wood, J. Probate.” And underneath the same was the following agreement: “ We the subscribers do hereby agree to and approve the aforegoing division of the estate of Timothy White, deceased. Charles Turner, guardian to Joseph. Almira White. Timothy White. Sarah White. Catharine Oakman Howard White.”</p> <p>John B. Turner and Samuel A. Turner, two of the committee who divided said estate, were called as witnesses, by the tenant, and they testified that Jesse Dunbar, the other member of the committee, was dead; that they well remembered making the division; that Howard White especially requested that his share should be set off to his brother Timothy; that the other heirs wished that the farm should be assigned to him, as he bore the name of Timothy, and the estate had been owned by Timothy White, for six generations preceding him; that the division made by the committee was made known to the heirs; and that they all approved of it, and signified in writing, on the same paper, their agreement to the same.</p> <p>It was proved, or admitted, that Joseph White was a minor, when said division was made, and that Charles Turner was duly appointed his guardian on the 1st of June 1824.</p> <p>The tenant then offered to read to the jury the original division of the estate, but the demandants objected thereto, on the ground that no evidence was given that Timothy White had paid the other heirs the moneys awarded to them for owelty of partition ; that no decree of partition had been made by the judge; and that the title to the real estate would not pass by virtue of such partition. The tenant then offered in evidence the deed of said Sarah (then Sarah Orcutt) and her husband, Gershom Orcutt, to John Thomas, dated January 24th 1825, acknowledged on the same day, and recorded May 27th 1825, of a part of the land assigned to her by said committee, and the further deed of said Sarah to her brother Howard White, dated August 6th 1831, and duly acknowledged and recorded, of the residue of the land set off to her on said division.</p> <p>The tenant also offered evidence that said Joseph White, after he was twenty one years old, viz. on the 8th of June 1829, conveyed to said Howard White, by deed duly acknowledged and recorded, that portion of real estate which had been set off to said Joseph by said dividers. The tenant also offered in evidence a deed from said Timothy White, dated March 29th 1825, and duly acknowledged and recorded, conveying to said Howard White an undivided piece of land and a dwelling-house, in payment of the share assigned to said Howard, and to be paid by said Timothy to him. The tenant also proved that said Sarah and Joseph had received the balance of their shares, and that said Catharine had received the whole of her share from said Timothy. And in regard to said Almira, to whom about four acres of land were set off, and to whom the sum of $474-29 was ordered to be paid by said Timothy, it was admitted that she had received said land ; and it was testified by John Damon, that he married said Almira, in January 1831, and that he and she make no claim to any part of the estate of said Timothy, now in possession of the tenant, but that he had a note, amounting to between three and four hundred dollars, which was given by said Timothy for said Almira’s share, in part, of her father’s real estate.</p> <p>The tenant also put in a mortgage deed of the demanded premises, made by Timothy White to Elisha James, dated April 30th 1842, duly acknowledged and recorded, to secure the payment of $2558-92, to which deed Howard White was a subscribing witness: Also an assignment of said mortgage deed, by said James, to the tenant, bearing date March 25th 1843, duly acknowledged and recorded : Also the affidavits of said Howard White and of Nathaniel Clapp, dated March 27th 1843, stating that the tenant, on that day, made open and peaceable entry in and upon the mortgaged premises, for condition broken, conformably to the statute ; which affidavits were duly recorded on the 29th of March 1843.</p> <p>The judge admitted in evidence the division made by the commitee, and also the abovementioned deeds, subject to the demandants’ objections thereto; and a nonsuit was thereupon entered by consent, to be set aside or confirmed by the whole pourt.</p>

<p>This was an appeal from a decree of the judge of probate ior the county of Plymouth, ordering distribution of the personal estate of Sylvanus Keith to be made, by his administrator, among his nephews and nieces, as his heirs at law. The case was submitted to this court on the following agreed facts:</p> <p>“ The said Sylvanus Keith, the intestate, and his only child, Caroline E. Coye, and her husband, George W. Coye, and their infant daughter and only issue, Caroline K. Coye, were on board the steamboat Pulaski, on her last voyage from Charleston to Baltimore, and perished at sea in the night of the 14th of June 1838, when said boat was lost: And after full inquiry no evidence can be obtained showing which of said persons died first, or which survived.</p> <p>“ It is further agreed, that the said Sylvanus Keith left no wife, and no heir in the ascending line, and that the distributees, named in said decree of the judge of probate, are the next of kin of said Sylvanus Keith, being his nephews and nieces. One of the appellants is administrator of the estate of the said George W. Coye, and the other appellants are the next of kin to the said Caroline K. Coye, being her uncles and aunts.</p> <p>“ It is further agreed, (if the age of said persons be material facts,) that on said 14th of June 1838, the said Sylvanus Keith, the intestate, was abo^.t seventy years of age, the said George W. Coye about thirty seven or eight, the said Caroline E about thirty two or three, and the said Caroline K. about eight or nine years of age.”</p>

This was an action of trover, brought by the assignee of William H. Stowell, a bankrupt, to recover the value of two specified quantities of oil, conveyed to the defendants by said Stowell.

<p>An action against a town, on the Rev. Sts. c. 25, § 22, to recover damages for an injury received by reason of a defect or want of repair in a highway which the town is by law obliged to repair, cannot be maintained by a party who goes out of the highway, because of the defect therein, into the adjoining land, and there teceives an injury.</p>

This was an action of assumpsit, brought by the collector of taxes for the town of New Bedford, to recover the amount of a poll tax and a tax on personal property, assessed upon the defendant in the year 1841. Trial in the court of common pleas, before Warren, J. at December term 1843.

<p>The plaintiff alleged, in a bill in equity, that she was admin istratrix of the estate of Fortunatos Pease, late of Dartmouth, who died on the 28th of May 1840, leaving one son and three daughters, who were entitled to distributive shares of his estate : That said Fortunatos, for some months next preceding his decease, was wholly incapable, from imbecility and mental infirmity, of managing his affairs, or understandingly disposing of his property: That whilst he was in this imbecile state of mind, the defendants, (part of his heirs,) knowing his incapacity, induced him, by certain unfair and unjust practices upon his weakness, to give and convey to them large and valuable portions of his estate, without any valuable consideration, to the injury of his other heirs; namely, certain real estate in Dartmouth, one sixteenth of the ship Forrester and cargo, cer tain promissory notes due from two of the defendants, severally, a certain mortgage deed of real estate, executed to said Fortunatos by Jonathan Sherman, together with sums of money and household furniture : That the plaintiff ought to be in possession of the aforesaid property, in order to administer it; but that there was no adequate provision in law, by which she could possess herself thereof, inasmuch as the defendants had confederated together to keep her out of possession of the same, sometimes denying that they have received the same, and sometimes falsely asserting that they received the same upon good consideration.</p> <p>The prayer of the bill was as follows: “ That the defendants, respectively, be required to answer fully, upon oath, all the matters and things objected against them, and particularly, that each of the defendants answer, what property, and when, they received from said Fortunatos; what promissory notes they received from him, and when ; what money and other effects they received from him, and when; and that all such othei proceedings may be had in the premises, as equity and justice-may require.”</p> <p>The defendants filed a general demurrer to the whole bill.</p>

<p>Assumpsit for use and occupation- of a tract of land in Taunton, called the Glebe Farm. At the trial in the court of common pleas, before Williams, C. J. the plaintiffs introduced evidence tending to prove that they, soon after the decease of their father, D. G. W. Cobb, under whom they claimed said land, as his heirs at law, viz. in the spring of the year "1832, made an oral contract with the defendant, on his application to them, to let said land to him, at the rate of $24 per year, which he agreed to pay; and that he had continued to occupy said land ever since the making of said agreement; also evidence tending to prove the defendant’s acknowledgments of the title of the plaintiffs’ father to said land at the time of his decease.</p> <p>The plaintiffs also offered in evidence an office copy (having first given evidence to prove the loss of the original) of a deed, as follows: “ Know all men by these presents, that we, Levi Leonard, William A. Crocker and James L. Hodges, all of Taunton, being authorized by the members of St. Thomas Church of Taunton, for that purpose, and in consideration of $463-32, paid by Francis Baylies and D. G. W. Cobb of Taunton, Esquires,” &c. “ do hereby give, grant, sell and convey unto the said Baylies and Cobb a certain tract of land,” (describing the land in question,) “ to have and to hold the aforegranted premises to the said Baylies and Cobb, their heirs and assigns forever.” “ In witness whereof, we, the said Leonard, Crocker and Hodges, have hereunto set our hands and seals, this sixth day of August, in the year of our Lord one thousand eight hundred and twenty eight.” (Signed and sealed by the grantors.) The covenants in this deed were those usually inserted in deeds of warranty, and were all made by the said Leonard, Crocker and Hodges, in their own names.</p> <p>The plaintiffs offered no other evidence of any right or authority of the grantors named in said deed to convey said land, or the title of the members of said church. The defendant objected to the admission of this copy in evidence, but the objection was overruled. The plaintiffs also gave in evidence a release of said land, given by said Baylies to said D. G. W. Cobb, executed, acknowledged and registered in September 1830.</p> <p>The defendant introduced evidence tending to prove that, for twenty five years next before the time of the trial, he had been in quiet, exclusive and adverse enjoyment of said land, using and treating it as his own during all that time.</p> <p>The jury were instructed “ that if the defendant occupied the said land, during the time for which rent was demanded in this suit, as the tenant of the plaintiffs, and by their permission, and on a promise, express or implied, to pay them for such use and occupation, he could not be permitted, in this suit, to dispute the plaintiffs’ title; and that the plaintiffs, in such case, would be entitled to a verdict, without reference to the comparative strength and validity of the titles of said parties, respectively, to the land in question.” The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions to the proceedings and instructions of the judge.</p>

Assumpsit on a promissory note given by the defendant to the plaintiff, dated February 20th 1841.

<p>On the trial of a real action, the demandant gave in evidence a deed of the demandec premises, made to him by A.: The tenant then offered m evidence an earlier deed of tiie same premises, made to him by A., and recorded subsequently to the recording of the demandant’s deed j but the signature of A. thereto was erased, and was proved to liave been erased before the deed was recorded: There was no evidence that (he demandant, when he received his deed from A., knew that there was a valid subsisting conveyance from A. to the tenant 5 but there was evidence tending to show that the demandant, when he took his said deed, knew that the tenant had held a deed from A., which had been given up. Held, that the tenant’s said deed was not admissible in evidence, without explanation of the erasure.</p> <p>These words in the habendum of a quitclaim deed from A. to B., “ to have and to hold the aforementioned premises to B., his heirs and assigns forever, so that neither I, the said A., nor my heirs, nor any other person claiming from or under me, shall or will, by any way or means, have, claim or demand any right or title to the aforesaid premises,” constitute a covenant of warranty or quiet enjoyment against all persons claim ing under or from A. If, therefore, A. had previously conveyed the land to C., by deed of warranty in the usual form, and B. brings a writ of entry to recover the land from C., A. is a competent witness for B. in the tria! of the case, his interest on onn side being counterbalanced by his interest on the other.</p>

<p>This was a bill in equity, wherein the plaintiff alleged that, on the 7th of November 1834, Nathaniel C. Dana and William R. Butterworth, being owners of certain real and personal estate in Seekonk, known as “ the Cove Mill Estate,” con veyed the same to Christopher Rhodes, William Rhodes, Orray Taft, Thomas Truesdell and Robert Rhodes, in mortgage, for the consideration of $25,000, to secure payment of fourteen promissory notes, of the same date, made by said mortgagors to said mortgagees; and on the 9th of December 1835, conveyed the said estate, with all the additions thereto and improvements thereof, to Samuel Congdon, his heirs and assigns, for the consideration of $3000, subject to the aforesaid mortgage: That said Congdon, on the 10th of February 1837, made quitclaim deeds of five eighths of all his right, title and interest in said property, as follows; viz. a deed of one undivided fourth thereof, for the alleged consideration of $5000, to John Jenckes, his heirs and assigns forever, taking back a mortgage thereof from said Jenckes, to secure paymentof a note made by him to said Congdon, for $ 5000 payable in one year; also a deed of one undivided fourth thereof, for the same alleged con ' sideration, to William H. Drown, his heirs and assigns forever taking back a mortgage thereof from said Drown, to secure pay nient of a like note made by him to said Congdon, for $ 5000, payable in one year, with interest; and also a deed of one undivided eighth thereof, for the alleged consideration of $2668-37, to Jonathan Knowles, his heirs and assigns forever, taking back a mortgage thereof from said Knowles, to secure payment of a note made by him to said Congdon, for $2668-37, payable in one year with interest: That the said Congdon, Jenckes, Drown and Knowles, on or about the said 10th of February 1837, entered into partnership, for the purpose of manufacturing cotton cloth at said Cove Mill, under the name and style of the Cove Mill Company; and their principal capital consisted of the aforesaid real and personal property, and was held by them in the following proportions, viz. three eighths by said Congdon, two eighths by said Jenckes, two eighths by said Drown, and one eighth by said Knowles : That on the 19th of April 1837, said Jenckes, Drown and Knowles, for the false and pretended consideration of $ 13,000, quitclaimed, by deed, all their right, title and interest in said property to the said Congdon, his heirs and assigns, with the intent and design to hinder, delay and defraud their creditors; that the three several notes above mentioned constituted the sole consideration of said quitclaim deed, and that said notes were in equity paid, and ought to have been surrendered to the makers thereof by said Congdon, when he received said deed: That said Samuel Congdon, on the same 19th of April, in furtherance of said fraudulent intent and design, with intent to hinder, delay and defraud the creditors of the aforesaid partnership of their just and lawful actions, debts and demands, conveyed all said Cove Mill Estate, by two deeds of mortgage; viz. a deed to Charles Congdon, for the purpose of securing to him the sum of $3750, feigned and pretended to be due to him from said Samuel on a note for that sum and interest, dated November 7th 1834; and also a deed to William H. Waterman, his heirs and assigns, for the purpose of securing to him the sum of $3750, feigned and pretended to be due to him from said Samuel on a note for that sum and interest, dated on the 7th of November 1834 : That said Samuel Congdon, on the 20th of April 1837, by quitclaim deeds, reconveyed to said Jenckes and Drown each one undivided fourth, and to said Knowles one undivided eighth, of said property, for the alleged consideration of $5000, paid by said Jenckes, and the same sum paid by said Drown, and $2668-37, paid by said Knowles: That said Jenckes, on the 21st of April 1837, quitclaimed all his interest in said property to Welcome Congdon, his heirs and assigns, for the alleged consideration of $ 500 : That said Charles Congdon, on the 16th of October 1838, conveyed all his interest in said property to Anthony B. Arnold, on a trust expressed in these words : “ That the said Arnold shall, at any time after either of the following named notes, to be given hereafter, shall have become due and payable, and the same shall be unpaid for the term of sixty days thereafter, upon the request, in writing, of the President, Directors and Company of the City Bank,” (of Providence,) “ sell, at public auction, the premises aforesaid, he or they first giving, after the expiration of said term of sixty days, sixty days’ notice thereof in some one of the public newspapers printed in the city of Prov idence, make and execute the necessary conveyance thereof, receive the amount of such sale or sales, and, after the payment of all the expenses of sale, apply and appropriate the residue in manner follow"ng, to wit; first, to pay a negotiable promissory note for the sum of $ 1740, to be made by Samuel Congdon, payable to, and to be indorsed by, John Jenckes, in three months from the first day of November 1838, at bank ; secondly, to pay a nóte to be made by John Jenckes, payable to, and to be indorsed by, Samuel Congdon, for $ 1740, in four months from said first day of November, at bank; thirdly, to pay a note to be made by Samuel Congdon, payable to, and to be indorsed by, Welcome Congdon, for the sum of $3000, in six months from said first day of November, at bank ; and fourthly, to pay all such notes or drafts as may at any time hereafter be given in part payment or renewal of either of the aforesaid notes: And in further trust, in case of a sale of said premises under and by virtue of this conveyance, to pay over to the said Charles all such sums of money as may remain after the payment of the expenses, the said notes, and reasonable compensation for the services of the trustee; and, in case said notes shall be paid or cancelled by the makers or the indorsers, or any other person for them or either of them, without recourse to the sale of the ; land, then to reconvey said premises to me the said Charles : ” That the said William H. Waterman, on the 16tt of October 1838, and the said Samuel Congdon, on the 15th of December 1838, each conveyed all his interest in said property to said Anthony B. Arnold, in trust for the same purposes mentioned in the aforesaid conveyance of Charles Congdon to said Arnold, except that, in case of a sale of the said property, said Arnold was to pay over to said Waterman all sums that might remain after the payments in said conveyance mentioned, and, in case no sale should take place, to convey said property to said Waterman, he accounting to said Samuel Congdon for said balance or for said premises: That the three conveyances last aforesaid were made with the intent and design of securing the respective private creditors of the said John Jenckes and Samuel Congdon by the partnership property of the Cove Mill Company, when that company was insolvent, and with the intent to hinder, delay and defraud the creditors of said company, and give to the creditors of the individual members of the company a priority over the partnership creditors; all which was well known by said Arnold: That said Jonathan Knowles, on the 16th of April 1839, quitclaimed all his interest in said property to said John Jenckes; and said Welcome Congdon, on the same day, reconveyed to said Jenckes all his interest in said property; one of these deeds of quitclaim bearing date April 4th, and the other April 3d: That on the 10th of April 1839, said partnership were largely indebted to divers persons, and applied to the plaintiff for a loan of money to pay their partnership debts ; and that he lent them $ 10,000, and received their promissory note therefor, payable in one year with interest; and that said money so lent was applied to the payment of partnership debts and to other partnership purposes ; and the plaintiff, on the same day, received of said John Jenckes, Samuel Cong-don and William H. Drown, two mortgage deeds to secure pav ment of said money, viz. one conveying the real property, and another conveying the personal property described in the mortgage, first above mentioned, made by Dana and Butterworth to Christopher Rhodes and others; but that no part of said money has been repaid to the plaintiff: That said Samuel Congdon and John Jenckes, on the 4th of October 1839, quitclaimed their interest in said property to Jonathan Knowles, who, on the 9th of December 1840, quitclaimed his interest in the same to Timothy I. Tanner: That on the 2d of January 1841, the said Anthony B. Arnold quitclaimed all his interest in said property to Timothy I. Tanner, for the alleged consideration of $7000; and that on the 28th of said January; Charles Congdon quit claimed to William H. Waterman all his interest under his aforesaid trust deed to Anthony B. Arnold; and on the 30th of said January, the said Waterman quitclaimed the same interest, and all his other interest under said trust deed, to said Timothy I. Tanner, his heirs and assigns; whereby said Tanner became, and still is, seized of the equity of redeeming three undivided fourth parts of said property: That on the 27th of April 1837, Thomas Truesdell and Robert Rhodes assigned all their interest in the mortgage aforesaid, made by Dana and Butterworth, unto said Christopher Rhodes, William Rhodes and Orray Taft; and that on the 5th of December 1839, said William Rhodes and Orray Taft took possession, according to law, of the whole of said property mentioned in that mortgage: That on the 18th of February 1841, Timothy I. Tanner conveyed all his interest in the same property to Lemuel C. Richmond, in mortgage, to secure payment of five promissory notes for the sum of $7000.</p> <p>The bill then averred, that said Tanner, Richmond, Drown, Taft, Christopher Rhodes and William Rhodes, combining and confederating to injure the plaintiff, pretend that the aforesaid mortgage made by Dana and Butterworth, and the fourteen notes therein mentioned, have not been paid, and that a part of said notes are now outstanding; whereas the plaintiff charges that they have been more than paid, by money &c. and from the rents of the mortgaged property, or might have been, but for wilful default and bad management: That the aforesaV conveyance from said Jenckes, Drown and Knowles, to Samue. Congdon, dated April 19th 1837, and the conveyances from Samuel Congdon to Charles Congdon and to said Drown, dated April 20th 1837; the two deeds made by Charles Congdon and said Waterman to Anthony B. Arnold, dated October 16th 1838 ; said Charles’s conveyance to said Waterman, dated January 28th 1841; and said Waterman’s conveyance to said Tanner, dated January 30th 1841 — were all made without any good or valuable consideration; that said conveyances, made on the 19th and 20th of April 1837, were made “of purpose and with intent and design to hinder, delay and defraud the then and future creditors of the Cove Mill Company ; and that all said conveyances were fraudulent and void as to the plaintiff: That the deed from said Arnold to said Tanner, dated January 2d 1841, was made in violation of the trust and provisions of the conveyance to said Arnold, and was fraudulent and void as to the plaintiff: That at the time of the several conveyances of Charles Congdon, William H. Waterman and Samuel Congdon, to said Arnold, he well knew that said Cove Mill Company and said Samuel Congdon were, and long before had been, insolvent and largely indebted, and that the two aforesaid mortgages, from said Samuel to said Charles Congdon and to said Waterman, were given without consideration, and were fraudulent and void as against the partnership creditors.</p> <p>The prayer of the bill was, that the defendants might answer, on oath, to all the matters therein charged; that an account should be taken, by a master, of what, if any thing, is due to said Christopher Rhodes, William Rhodes and Orray Taft, on the mortgage made by Dana and Butterworth, and what is due to the plaintiff on his mortgage; and that the said Tanner, Drown and Richardson be decreed to pay the plaintiff what shall be found due to him.</p> <p>A supplemental bill was filed, in which the plaintiff alleged, that after the filing of the original bill, and before service of notice thereof, viz. on the 10th of June 1841, the said Tanner, by his deed, for the alleged consideration of $ 8000, quitclaimed all his interest in one third of the Cove Mill real estate to Isaac G. Richmond, and one other third part thereof, for the same alleged consideration, to Samuel D. Slocum ; that said Tanner, on the 3d of September 1841, by his deed, in which no consideration is expressed, quitclaimed to said Richmond and Slocum the other third part of said estate; and that said Tanner, on said 10th of June 1841, for the alleged consideration of $1000, mortgaged unto Samuel Slocum one third part of said Cove Mill estate, to secure payment of two promissory notes, one for $450 in six months, and another for $500 in twelve months: Whereby said Isaac G. Richmond, Samuel D. Slocum and Samuel Slocum pretend to have become part owners of the share of said estate which said Tanner purchased, as in the original bill is set forth; and they, confederating together, and combining with said Tanner, Drown, Taft, Christopher Rhodes and William Rhodes, to injure the plaintiff, pretend that said four deeds last mentioned were for a valuable consideration and bond fide, &c. and that they had no knowledge of the plaintiff’s prior mortgage, or of his intention to file his original bill Whereas the plaintiff charges that said deeds were without any good or valuable consideration, and were not intended to convey any interest in said estate; and that said deeds were made with a knowledge of the plaintiff’s intention to file his said bill, and with intent to hinder, delay and defraud the plaintiff, and are, therefore, as against him, fraudulent and void: That the plaintiff is entitled to the same relief against said Slocums and Richmond, as against the defendants named in the original bill.</p> <p>The prayer of this supplemental bill was, that said Slocums and Richmond make answer, on oath, to the matters charged against them.</p> <p>The defendants made answers, to which the plaintiff filed a replication, and much evidence was taken by both parties. These answers, and the evidence, so far as they áre necessary to an understanding of the points of law decided in the case, are sufficiently stated in the opinion of the court.</p>

<p>This was an appeal from a decree of the judge of probate for the county of Barnstable, and was submitted to the court on the following statement of facts:</p> <p>Thomas Rider of Provincetown, on the 29th of November 1796, made his last will, in these words: "As to such worldly interest as God hath been pleased to bless me with in this life, I give, bequeath, devise and dispose of the same in the following manner, viz. I give and bequeath to my wife, Polly Rider the use and improvement of all my estate, real, personal and mixed, for her own use and benefit, so long as she may continue my widow. I also constitute and appoint my wife, Polly Rider, to be executor of this my last will and testament.” No other disposition of any part of said Rider’s estate was made by will; and he died, December 23d 1830, leaving real and personal estate more than sufficient to pay his debts and the expenses attending his decease. He left no lineal descendants, but left numerous collateral relations, his neirs at law, of whom Rebecca R Nickerson, wife of the appellant, was one.</p> <p>Said will was proved and allowed in March 1831. The wife of the testator survived him, accepted the trust of executor and never afterwards married. She took the use and improvement of said real and personal estate during her life, and died in 1841, leaving a will, of which she appointed Asa S. Bowly, the appellee, to be the executor, and which was proved and allowed on the 5th of November 1841. On the same day, Stephen Nickerson, the appellant, was appointed administrator de bonis non, with the will annexed, of said David Rider, and, on the 1st of April 1844, rendered to the judge of probate an account of the personal estate of said David, showing a balance of $ 1118-64 in said Stephen’s hands, belonging to the heirs or legal representatives of said David. The judge of probate thereupon passed a decree of distribution, in which said Stephen was directed to pay one half of said balance to said Asa S., as executor of the last will of said Polly Rider. From this decree the said Stephen appealed.</p>

Assumpsit on three promissory notes. The defendant relied on the statute of limitations. The parties submitted the case to the court on the following facts agreed* The notes declared on were made by the defendant, more than six years before the commencement of the suit; and this letter was written by him to one of the plaintiffs: “ New Bedford, February 15th 1843. Mr. Benjamin Mumford.

This was an action of assumpsit, originally brought against Samuel Crocker, Charles Richmond, sen. and the present defendant, as partners, under the name of the Taunton Iron Foundry, upon the common money counts and an account annexed to the writ. At the April term 1843, the plaintiffs discontinued against said Crocker and Richmond, sen. (they having been discharged under the insolvent laws,) and proceeded against the present defendant alone.

<p>Petition for partition. The petitioners, except Barrett Beard, claimed as heirs at law of Browning O’Kelly, late of Dartmouth, who died intestate. The said Beard claimed by purchase from the other heirs of the said deceased. The respondent denied the seizin of the petitioners, and alleged that he was sole seized. Trial in the court of common pleas, before Merrick, J. whose report thereof was as follows:</p> <p>The respondent admitted that the petitioners, except said Beard, were heirs at law of said intestate, and that, if they were entitled to partition, they were entitled to the respective shares which they claimed in their petition. Satisfactory evidence was' introduced, to prove that said Beard was possessed, by purchase, of two twenty eighth parts of the premises described in the petition ; and that said Browning O’Kelly, the intestate, died on or about the 25th of September 1841.</p> <p>The respondent, in support of his claim of sole seizin, offered in evidence a deed of the premises aforesaid, dated September 18th 1838, purporting to be executed by said intestate, and conveying said premises to the respondent. He called John Nickerson, as a witness, to prove the execution of that deed, who testified that he wrote the deed at the request of the intestate, who was his grandfather, in the intestate’s house, and that the deed was signed and acknowledged by the intestate ; that after the .deed was executed, he delivered it to the intestate, and left it with him ; that about three months before the death of the intestate, the witness, and Polly Briggs, a daughter of the intestate, were at his house, and in a room with him; that the intestate then gave directions as to the delivery of this deed, and of other writings which were then executed by him; that the intestate directed his said daughter to advise with the witness as to the delivery of them, and said the witness would knów best which to give up: That the intestate then said, “ that deed ” (referring to the deed under which the respondent claims) “ is good; I have consulted with a lawyei in New Bedford, who informed me that the deed was good: ” That this deed, up to that time, had been in the possession of said Polly Briggs; and the intestate having inquired where it was, the witness, on being informed by said Polly, went, at the request of the intestate, and brought it into the room where the aforesaid conversation was had, and the aforesaid directions were given, and handed it to the intestate, who delivered it to his said daughter, Polly Briggs, with directions to advise with the witness, and to give it to the respondent after the intestate’s death, if he behaved well. The witness further testified that the said Polly never did advise with him.</p> <p>The respondent then called Amy Baker, a granddaughtei of the intestate, and daughter of said Polly Briggs, who testified that, four or five weeks before her grandfather’s death, he handed said deed to her; that she carried it home to her house and kept it, and that, about four weeks after the intestate’s death, she delivered it to the respondent; that the intestate gave her no instructions or directions to deliver the deed to any one, and that no third person was present when she received it from him.</p> <p>The respondent then offered to prove, that when the last witness delivered the deed to him, she .said, “ here are the papers which grandfather gave me to deliver to you.” This evidence was rejected by the court.</p> <p>The respondent contended that the evidence, which was received, was sufficient to establish the deed; that the direction given to Polly Briggs, to deliver the deed, was sufficient to pass the title; and that the taking of the deed from Polly Briggs, afterwards, and giving it to her daughter, Amy Baker, was no revocation of the authority to deliver it, and did not retract, thereby, the grant; that the question of intent was proper for the jury; and that no presumptions of law were raised by these acts. But the court ruled that the evidence was wholly insufficient to establish the grant, and a verdict was returned for the petitioners. The respondent alleged exceptions to the ruling of the court.</p> <p>The argument was had at the last October term.</p>

<p>Assumpsit on the note hereinafter set forth, alleged to be the note of the defendant, made by his agent. The parties submitted the case to the court on the agreed statement of facts which follows:</p> <p>The plaintiffs, by a policy of insurance, dated April 29th 1839, caused “ William H. Stowell, for Charles Covell, $3000, Charles Hafford $1750, and George W. Little $1750, to be assured, lost or not lost, sixty five hundred dollars on ship Golconda and outfits, proportionally on each, at and from New Bedford to wherever she may go on a whaling voyage ; at and after the rate of three per cent, if the risk ends within twelve months, and pro raid for a longer time ; to add half per cent, if she goes to Cape Town to recruit.” The following note was thereupon made and delivered to the plaintiffs: “ New Bed-ford, 4th mo. 29, 1839. For value received in a policy of insurance, No. 4847, we promise to pay the Bedford Commercial Insurance Company, or order, at the Bedford Commercial Bank in New Bedford, one hundred and ninety six dollars, together with such additional premium as may be due agreeably to the terms of said policy, in sixty days after the termination of the risk for which this note is given. William H. Stowell.”</p> <p>The defendant was a part owner of the ship named in the said policy, and William H. Stowell, therein named, procured the insurance for the defendant, at his request. The said Stow ell, when said policy was executed, gave to the plaintiffs the note above described. The said ship sailed on the contemplated voyage, and was covered by said policy until its termination in April 1841, when the extra premium earned upon the defendant’s part of said ship, according to the terms of said policy, amounted to $</p> <p>When said insurance was effected, a notice was posted in the office of the plaintiffs, in the words following: “ No insurance is valid or binding upon the company, until the premium is paid, or a note given by the person effecting insurance.”</p> <p>The said Stowell was the agent for said ship, and, immediately after her return, made a settlement with the defendant, in which he charged and was allowed the premium due from the defendant on the said policy. In April 1842, the said Stowell was declared bankrupt, under the provisions of the bankrupt act of the United States, then in force; and, in December 1842, the plaintiffs proved certain claims against his estate, and, among them, a claim for the premium and extra premium earned on the aforesaid policy, and afterwards received, from said Stowell’s estate, a dividend of 15T4¡ny per cent, upon the amount of their claims so proved. No demand was made by the plaintiffs upon the defendant, until after said claims were proved as aforesaid. The plaintiffs have received no part of said premium, except as aforesaid, nor any other security for the same, besides the aforesaid note of said Stowell.</p>

<p>Writ of review. The plaintiffs in review brought an action, in 1839, against John Sidebottom, and summoned the Bristol Print Works, the defendants in review, as his trustees, who made an answer, by Charles Porter, their clerk, stating that Sidebottom had been in their employment, and that his wages, due at the time of the service of the trustee process, were $ 47-62: That he, in March 1838, drew an order on said Porter, requesting him to pay Leonard & Atwood his wages, from month to month, as they should become due, and what might then be due to him from the Bristol Print Works: That said order was accepted, and that Leonard & Atwood had received all that Sidebottom subsequently earned in the employment of the Print Works, except said sum of $47-62: That Leonard & Atwood knew that said trustee process was pending, but did not give said Porter notice that they had made any advances to Side-bottom, in consequence of the acceptance of said order, or that they claimed that further payments should be made to them.</p> <p>The court charged the Print Works, as trustees of Sidebottom. (See the report of the case, 3 Met. 297.) But, by mistake in the entry of the judgment, it appeared upon the record that they were discharged, and they took out execution for costs, which was satisfied by the plaintiffs, who, after discovering the mistake, petitioned for a writ of review, which was granted. Leonard & Atwood thereupon filed the petition which is mentioned in the opinion of the court.</p>

This was a bill in equity, filed September 14th 1843, in which the plaintiff averred that, on the 28th of July 1841, he was seized and possessed of certain real estate in Pawtucket, and then made a paper, under seal, purporting to be a conveyance of said estate to Hiram Hill, one of the defendants, in trust, for the benefit of the plaintiff’s wife, Freelove, and their two children, Phebe P. and Samuel C. Parker ; that the contingency not happening on which he intended to…

<p>A testator devised part of his real estate to the legal heirs of his deceased brother S. i At the time of the testator’s decease, the legal heirs of S. were six of his children living, eleven children of his deceased daughter D., and three children of his deceased son L. Held, that the heirs of S. took per stirpes, and not per capita, to wit, his living children one eighth each, the children of D. one eleventh of one eighth each, and the children of L. one third of one eighth each.</p>

This was an action of assumpsit, commenced in April 1842, to recover one eighth part of the profits of the fishery, in 1837, at the Shad Hole, so called, in Raynham.

<p>Assumpsit, by the indorsee of a draft, which was as follows “ New Bedford, 6th mo. 17, 1841. Twelve months after date, value received, please pay to my own order, five hundred and sixty two dollars, and place the same to the account of, as advised, yours, G. Hathaway «fe Co.</p> <p>“ To the agent and owners of the barque Endeavor, of New Bedford.”</p> <p>Dewey, J. before whom the trial was had, made the following report: The draft was accepted, by the name of “ William H. Stowell ” being written thereon, without further addition indicating the capacity in which he accepted it. It was admitted that the defendants were the owners of the barque Endeavor. It was admitted or proved that William H. Stowell was agent for said barque, in fitting her out and furnishing the proper supplies for a whaling voyage ; that said draft was for the amount of the sums due to the drawers for goods furnished for the barque; that the goods were purchased by said Stowell, as agent for the barque, and went to the use of the same; and that the drawers had been paid for the goods in no other way than by the acceptance, as aforesaid, of said draft. It was also admitted that said Stowell was the owner of five sixteenths of said barque. The defendants admitted that said Stowell had the usual authority of an agent for procuring supplies for a ship, and fitting her out. But they insisted, 1st, that he had no authority to accept a draft on the owners of the barque for purchases made by him for the barque; 2d, that upon inspection of the draft and acceptance thereof, it did not purport to be an acceptance as agent of the barque, and was not, therefore, binding upon the owners ; 3d, that it was not competent for the plaintiff to establish the fact of such acceptance being made as agent, and in behalf of the owners, by parol evidence.</p> <p>The judge ruled as follows : “ If the owners of a whale ship, engaged in fitting her out for a whaling voyage, appoint an agent, to whom is wholly committed the fitting of her out, giving such agent the general power and authority to fit her out, at his discretion as to the extent of purchases and the time of credit to be obtained on goods purchased ; if such agent, in the discharge of such agency, makes suitable and proper purchases of goods for such ship, and in payment therefor accepts drafts, as agent of such owners — it being admitted or proved that such goods were a part of the outfits of the ship, and went to the benefit of her owners — and if it further appears that the owners are not deprived of any benefit of set-off, or any defence which they might have against the owners of the goods sold, had the action been brought in their names for the goods sold; in such state of facts, and in the absence of any general and established usage to the contrary, the owners of the ship would be bound by such acceptance of their agent, and liable to pay the same : That, as to the form of the acceptance of the present draft, if the jury were satisfied that this form of making an acceptance, by writing the name of the agent, without any description of his character of agent annexed thereto, was in accordance with the general usage and custom of making acceptances, as agents and in behalf of the owners of whale ships, they might, notwithstanding such form of acceptance, find that this draft was accepted by Stowell, as agent; and that the fact of his being part owner would not impair the validity of such acceptance, or prevent its liability from attaching to the owners generally.”</p> <p>The jury were further instructed, that “ if the draft was drawn and accepted on any new agreement, or any extension of credit given to Stowell personally, and on his own account, the defendants were not liable on the same.”</p> <p>The case was submitted to the jury, upon the evidence offered by the parties, and the ruling of the judge, as above stated; and a verdict was returned for the plaintiff. Verdict to be set aside, and a new trial granted, if the rulings at the trial were erroneous in law, and not sufficiently favorable to the defendants; otherwise, judgment to be entered on the verdict.</p>

<p>The provision in the Rev. Sts. c. 18, §7, that when the pulling down of a building, by direction of firewards, shall be the means of stopping a fire, the owner of such build ing shall be entitled to recover reasonable compensation therefor from the town, does not apply to a building which is pulled down, by such order, after it is so far burnt, that it is impossible to save it from destruction by fire.</p>

<p>Trespass upon the case. In the first count in the plaintiff’s declaration, he averred that on the 7th of March 1837, and thence to the day of the date of his writ, he was seized and possessed in his demesne, as of fee, of two acres of land, with a water mill thereon, and the water privilege thereto appertaining, on Charles River, in Medway, with all the privileges and appurtenances thereto belonging, and ought, during all the time aforesaid, to have had the uninterrupted enjoyment of said mill privilege, without any molestation from the defendant; but that the defendant, on said 7th of March, erected a dam across said river, below the plaintiff’s said mill and land, and had continued the same hitherto, and thereby, during all that time, raised the water in said river above its usual and due height, and caused the water to flow back upon the wheel of the plaintiff’» said mill, and thereby obstructed and prevented the plaintiff in the use thereof, and deprived him of the profits of the same, &c.</p> <p>In the second count, the plaintiff averred that the defendant, on the 7th of March 1837, and on divers other days between said day and the day of the date of the plaintiff’s writ, put, kept up and continued, a certain obstruction in said Charles River, and caused the water thereof to flow back upon the plaintiff’s mill wheel, and prevented the water from flowing and passing from the said mill wheel along said river, in the usual course, and as of right it ought to have flowed and passed off, and thereby caused back water upon the plaintiff’s said wneeL and obstructed and hindered the plaintiff in the use of his mill, &c.</p> <p>The case was tried before Dewey, J. whose report of the trial was as follows It appeared in evidence that the plaintiff owned one mill on Charles River, and the defendant another; the plaintiff’s mill being about a quarter of a mile above the defendant’s: That prior to the year 1833, both of said mills, and the intervening land on the banks of the river, were owned by William Feltt, Gilbert Clark, Jacob Hall, Luther Capron, and William H. Cary, the plaintiff in this case: That the upper mill was on an ancient privilege, and was the oldest and much the largest: That when the lower mill was built by the owners of the upper mill, a dam was made, which was abandoned in 1832, and another erected by said owners lower down the stream; (the former of these dams was called, at the trial, the old darn, and the latter the middle dam.) It also appeared that there was a waste gate in the latter dam ; but its size was not proved.</p> <p>The plaintiff introduced the following deeds of the upper mill and some of the land adjacent to it, conveying the same to James B. Wilson; viz. a deed from Gilbert Clark, of one undivided fourth thereof; from William Feltt, of three undivided eighths thereof; from Jacob Hall, of one undivided fourth thereof; and from Luther Capron, of one undivided eighth thereof. The first three of these deeds were dated July 17 th 1833, and the last was dated September 21st 1833. Each of these deeds contained these words: “ To have and to hold the above granted premises, with all my right, title, interest and estate, in and to the privileges and appurtenances to the said land and tenements belonging, to him, the said James B. Wilson, his heirs and assigns, to his and their use and behoof forever.” Each of these deeds conveyed the iand therein described, together with an undivided part “ of the privilege of water, creek, factory, saw mill, dwelling-houses and other buildings situate on the premises, and of the water wheels, main gears, main drums, connected with the said factory and saw mill, and of all the privileges and appurtenances thereunto belonging.” And in each of these deeds was a covenant that the granted premises were “ free from all incumbrances brought thereon ” by the grantor. The plaintiff also introduced a deed, made by him to said William Feltt, of one undivided eighth of said upper mill and land, dated before July 17th 1833. These deeds left the grantors seized of the lower mill and the land between that and the upper mill, including the sites of the old and the middle dam. The plaintiff also introduced a deed, made to him by said James B. Wilson, dated March 7th 1837, conveying (with some reservations) the same which Wilson acquired by the deeds above mentioned, “ with all the privileges and appurtenances.” In this deed, Wilson covenanted with the plaintiff, his heirs and assigns, to warrant and defend “ the said premises ” against the lawful claims of all persons claiming through or under him, but not otherwise.</p> <p>It appeared in evidence, that prior to the aforesaid conveyances to Wilson, and while the upper and lower mills and the intervening land were all owned by said Clark, Feltt, Hall and Capron, as tenants in common, it was the practice, whenever such a rise of water was caused by the middle dam as to obstruct the upper mill, for one of the workmen employed in the upper mill to go down over the land of the tenants in common, and open the waste gate at the middle dam, and thus relieve the upper mill from back water ; and that this practice continued down to the time when Wilson became the owner of the upper mill.</p> <p>The defendant offered to prove, by Wilson, that when he bought the upper mill, he did not know of the existence of this practice, and did not know that he had any right to open said waste gate; and Wilson so testified. This evidence was admitted, as competent, for the purpose of tending to prove that the practice did not exist; but it was ruled, that if the usage did exist, and a right had thereby attached to the upper mill, it was immaterial whether Wilson knew of it, or not; and that his ignorance would not affect his legal rights.</p> <p>It appeared that the abovenamed Gilbert Clark, and William H. Cary, (the plaintiff,) and Luther Capron, by a deed dated September 21st 1833, conveyed their several interests in the lower mill, and the land between that and the upper mill, to William Feltt and Jacob Hall, the other part owners. In that deed was this covenant: “ And we, the said Clark, Cary and Capron, do hereby, each of us for himself, his heirs, executors and administrators, and not for the other, of their heirs, executors or administrators, covenant with the said Feltt and Hall, their heirs and assigns, that the above granted premises are free from all incumbrances brought thereon by us.”</p> <p>It further appeared, by deeds which were put into the case, that the defendant and Wilson afterwards became owners, as tenants in common, of said mill and land; and that, on the 5th of March 1838, the defendant became sole owner thereof, by virtue of a quitclaim deed from said James B. Wilson, conveying to him one undivided moiety of the same; that in the year 1837, the middle dam was carried away by the water; and that the defendant, in the summer of 1838, built a new dam lower down the stream.</p> <p>The plaintiff contended that he was entitled to an unincumbered mill privilege; also, that he was entitled to such a privilege as the upper mill was, with the waste gate of the middle dam open whenever there was a rise of water sufficient to obstruct the upper mill. He also contended that the new dam did not afford to him, as owner of the upper mill, the same facilities for clearing that mill of back water, as the middle dam did, by opening the waste gate, and that, being at a greater distance from his mill, a greater burden was thereby imposed on him. He further contended that the new dam, as constructed and used, was more injurious to him than the middle dam with the gate closed.</p> <p>The defendant denied that the middle dam, with the waste gate closed, would have been less injurious to the plaintiff than the new dam : And he asked that the jury might be instructed, “ 1st, that the practice, while both of the mills and the intervening land were held and occupied by those who owned them as tenants in common, for a person to go down from the upper mill over the land of the tenants in common, and open the gate to relieve the upper mill from back water, although continued down to the time of the conveyances to Wilson, would not, in connexion with these conveyances, operate to grant to Wilson the right or easement to go down over the land of the grantors, which was not conveyed to him, and open the gates to relieve the upper mill from back water; and 2d, that if any such right was conveyed, this declaration does not, in point of law, describe, nor allege any violation of it, nor can the plaintiff recover for a violation of such right, in this action.”</p> <p>The judge instructed the jury, “ that Wilson, by force and effect of his deeds from persons jointly owning and occupying both mills and dams, acquired the right to the use of the upper dam and mill privilege, as respects the dam below, in the same manner that the grantors were accustomed to use the same, and did use the same at the time of their making such conveyances to Wilson, so far as such use was necessary for the convenient and useful operation of the upper mill; that is, that if the occupants of the upper mill had been accustomed, before and down to the time of the making of the deeds to Wilson, to go down and open the gate of the dam below, when necessary to prevent back water, that the plaintiff had the same right, under the deeds to Wilson, to go down and open the gates of the dam below, for the like purpose.”</p> <p>The jury were further instructed, as to the change of the site of the lower dam, (it having been removed, as the evidence tended to show, 450 feet further from the upper dam, measuring by the road, and 750 feet, by the course of the stream,) that the owners of the lower dam had no right thereby to subject the owners of the mill above to any greater inconveniences and obstructions thereby, than they were subjected to by the former dam : That the owners of the dam below ought not, by means of said new dam, to cause any substantial increase of labor or expense to the owners of the mill above, in enjoying their privilege: That if the facilities which were attached to the upper mill, and were enjoyed by the owners thereof, in preventing back water by means of their opening the gates at the middle dam, were substantially affected by the change of the site of that dam to a place more distant, it would be incumbent on the owners of the lower1 mill and the dam thus erected on the new site, to provide means for securing as great facilities for preventing back water at the upper mill, as had been previously enjoyed, and so to manage the new dam, that "no labor or expense would devolve upon the occupiers of the upper mill, in preventing back water, beyond what was required by the dan in its former state.</p> <p>Much evidence was offered by the plaintiff, tending to show that the new dam was so constructed that it operated injuriously to him, and was in violation of his privilege, even taking the privilege to be the restricted one contended for by the defendant, viz. the free and unincumbered right of the defendant to the use of the middle dam, with the gate closed, and the plaintiff having no right to go down and open the same, to relieve from back water. There was also much evidence on the part of the defendant, tending to show the contrary. This presented a question of fact, which was distinctly submitted to the jury, with instructions that if, upon this point, they should find for the plaintiff, they would, in assessing damages, state the sum they should find for this cause, independent of the other alleged claim for damages. The jury found for the plaintiff on this point, and assessed his damages therefor at $300.</p> <p>Upon the other ground on which the plaintiff claimed damages, viz. the defendant’s unlawful obstruction of, or interference with, the rights of the plaintiff to relieve his mill from back water, by going down to the defendant’s dam and opening his gates, the jury were instructed, as to the legal rights of the parties, as above stated, and were further instructed, if they should find for the plaintiff on this claim, to consider and estimate the damages therefor distinct from, and independent of, the damages, if any, which they might find for the other alleged injury. The jury found for the plaintiff on this second ground, and assessed his damages at $ 100.</p> <p>A general verdict was then returned for the plaintiff for $400.</p> <p>This form of assessing damages separately was adopted by the presiding judge, with a view of more conveniently reserving the questions of law which are raised.</p> <p>Judgment to be rendered on the verdict, if the rulings of the judge were correct, and if the declaration is such as to authorize a judgment upon the grounds on which the verdict was rendered ; otherwise, the verdict to be amended, or a new trial granted, as the whole court shall order.</p> <p>The argument was had at the last October term.</p>

This was a complaint, on the Rev. Sts. c. 116, for flowing land in Bellingham by means of a mill dam. The respondents claimed the right to flow without payment of damages ; and the case went to a jury, on the question whether they had such right. Trial in the court of common pleas, before Ward, J The complainant, to show his title to the land described ii, his complaint, introduced three deeds, dated June 12th 1832, each conveying to him an undivided part of said land.

<p>Appeals from a decree of the judge of probate, approving and allowing the last will of Charles Davis, late of Roxbury, and granting letters testamentary to the appellee, who was named as executor of said will. The case is fully slated in the opinion of the court.</p>

Assumpsit for goods sold and delivered before the 10th oí July 1842. Writ dated March 20th 1843.

Writ of entry, dated February 5th 1844, to recover two parcels of land in Braintree. Trial before the chief justice, whose report thereof was as follows: Both parties claimed the land under Samuel L. Holbrook, and admitted that he once owned it, and conveyed it to his father, Joseph Holbrook, by deed dated January 16th 1843.

<p>Assumpsit by the indorsees against the indorser of a promissory note of the following tenor: “ August 8th 1843. For value received, I promise Tilley Willis, to pay him, or order, $350, in four months from date. T. D. Thompson.” On the back was the name of B. L. Mirick & Co., and under that name was the name of the defendant, both indorsements being in blank.</p> <p>At the trial before the chief justice, the plaintiffs’ cashier testified that they discounted the note for Thompson, and that, when it was discounted, the names stood on the note as they now do. There was no evidence that the note was presented to Mirick & Co. for payment; but there was evidence tending to show that notice of dishonor was given to them, as indorsers, as well as to the defendant.</p> <p>The defendant contended that Mirick & Co. were to be considered as joint, or joint and several, promisors, and that the defendant was not responsible as indorser, without proof of presentment to them for payment. But it was ruled that they were not to be so considered as promisors, as that presentment of the note to them, and demand of payment of them, were necessary to charge the defendant. A verdict was returned for the plaintiffs, which is to be set aside, and a new trial granted if the ruling was incorrect.</p>

Assumpsit to recover for the support of William Morse. The parties submitted the case to the court of common pleas, on the following facts agreed : “On the 14th of July 1842, William Morse, whose lawful settlement was in the town of Dedham, was committed, by sentence of the municipal court, to the house of correction in the county of Suffolk, for three years, as a common and notorious thief, for larcenies not within the jurisdiction of the police court.

Writ of entry to recover possession of a wharf, &c. in Wey mouth. The demandant claimed under a mortgage of the de manded premises, made by George Blanchard to the Hingham Institution for Savings, on the 23d of September 1837, to secure payment of a promissory note, of the same date, for $2000, and assigned by said institution to the demandant, on the 27th of August 1841.

<p>A complaint was made in this form: “ F., on oath, complains against P., at M., on the first of February in the year 1844, did sell to C. one glass of spiritous liquor,” &c. Held, that the word “ against ” might be rejected as surplusage, and that the complaint, without that word, was sufficient.</p> <p>iVhen a complaint alleges that an offence was committed “ on the 1st day of February in the year 1844,” it is no valid objection thereto, that it is dated “ the 5th day of February 1844,” without the word year.</p>

This was a complaint, made to a justice of the peace, in the following form: “ Stephen F. Fowler of Quincy, upon his oath, complains against Minot Thayer of Dorchester, in the county of Norfolk, innholder at Dorchester aforesaid, on the twenty sixth of February in the year one thousand eight hundred and forty four, did sell to one James L. Foord one glass of spiritous liquor, to be by him the said Foord then and there used, consumed and drank, in the dwelling-house of him…

This was a complaint against the defendant for selling to Albert Hersey one glass of spiritous liquor, on the 19th of February 1844. The form of the complaint, mutatis mutandis, was the same as in the next preceding case, against the same defendant. At the trial in the court of common pleas, before Ward, J. “ it appeared that the defendant was keeper of a public house in which was a bar and a bar-keeper.

The defendants were found guilty, by the jury, in the court of common pleas, on an indictment which alleged that “Roxana Tower and Caroline Leonard, both of Canton, in the county of Norfolk, spinsters, at Canton aforesaid, on the 1st day of May last past,” (1843,) “ and on divers other days and times between that day and the day of taking this inquisition, did presume to be, and were, common sellers of wine, brandy, rum and other spiritous liquor, to be used and drank in the…

The indictment in this case alleged that the defendant, “ at Canton, in the county of Norfolk, on the first day of May now last past,” (1842,) “ and from thence continually to the day of the making of this presentment, did presume to be, and during all the time aforesaid was, in the dwelling-house of the said Caroline there situate, by her the said Caroline then and there used, improved and occupied, a seller of rum, brandy, gin and other spiritous liquors, to be then and…

This was a complaint, made to a justice of the peace, in which it was alleged that the defendant, “ on the 1st of November 1842, at Canton, in the county of Norfolk, did sell to one William Beck spiritous liquor in less quantity than twenty eight gallons, she the said Caroline Leonard not being duly licensed therefor; against the peace,” &c. After a verdict had been found against the defendant in the court of common pleas, she filed a motion in arrest of judgment.

This was a complaint made to a justice of the peace, charging the defendant with selling spiritous liquor, without license, to Samuel Wood, on the 4th of June 1844.

Writ of error to reverse a judgment of the municipal court, rendered at August term 1844, on an information against the plaintiff in error. Said information set forth three convic tions of the plaintiff in error, on each of which he had been sentenced to imprisonment in the state prison for a period of more than one year.

Writ of error to reverse a sentence of the municipal court, rendered at August term 1844, on an information which set forth three previous convictions of the plaintiff in error, and three sentences to punishment in the state prison, by imprisonment therein, in each case, for a period not less than one year. The additional sentence was, that the said Newton be confined to hard labor in the state prison for the term of one year.

<p>Bill in eqtjity. The plaintiff averred that, on the 27th of March 1799, the children of John Amory, senior, understanding that he had made his last will, and had bequeathed to Lucy Amory and Katharine Amory, children of his deceased son William, less than the share of said John’s estate which they would inherit if he should die intestate, covenanted with each other, and with said Lucy and Katharine, and the executors of said John’s will, that said Lucy and Katharine should be entitled to such further part of said John’s estate as should amount to a full share thereof, as if said John had devised such share to them, as representatives of said William; provided, that said share should be paid by said executors to Rufus G. Amory, guardian of said Lucy and Katharine, or to their guardian for the time being, who should pay out of the profits or income thereof die yearly sum of $150 unto the mother of said Lucy and Katharine, &c. &c.; and provided also, that a majority of the said covenantors might make any other and further limitations of the principal or interest of said property, as they might think to be for the benefit of said Lucy and Katharine • That, aftei the decease of said John, the shares of said Lucy and Katharine were appropriated out of said John’s estate, according to the aforesaid covenant, and put into the hands of their guardian, for their use; and shortly after, the sum of $3333-33 was set apart out of their joint shares, in order to raise therefrom the aforesaid annuity of $150 (afterwards raised to $200) to their mother: That a majority of said covenantors, on the 9th ot March 1820, exercised the power, which they had reserved, of making further limitations of the principal and interest aforesaid ; and, after reciting that said Lucy had received all the interest on her share, and that a part of the principal thereof had been paid to her on her intermarriage with Joseph Bennett, they declared limitations upon the residue of her property in her guardian’s hands remaining, and upon all said Katharine’s property in the same hands; which limitations were as follows: “That the principal sum now remaining, belonging to the said Lucy, now Lucy Haskell, and Katharine, now Caroline Amory, respectively, shall continue to be held by John Amory, their uncle, and Rufus G. Amory, their uncle, or by one of them, and by the survivor of them, in trust that they will pay thé interest of the sum, belonging to each of the said children of William Amory, to the said children respectively, whether married or single, during their several and respective lives, taking their several sole and separate receipts therefor; and upon the decease of the said Lucy Haskell, in further trust that they will apply the whole or such part of the interest of the property still remaining, belonging to her, or covenanted to be retained by her, as aforesaid, towards the support of the children of said Lucy Haskell, in such a manner, and in such proportions, as they the said John Amory and Rufus G. Amory, or either oí them, or the survivor of them, may see fit; and on the marriage or arrival at full age of either of said Lucy’s children, or before, if they see fit, in trust that they may advance a part or the whole of such child’s share of the principal; and on the arrival of such child or children at the age of 21 years, or on an appointment of guardians whom the said John and Rufus G. Amory may approve, in further trust that, they may pay over the principal either to such children of full age, or to such guardians so by them approved, to be equally divided among the children of said Lucy: And upon the decease of said Caroline, [formerly Katharine,] in trust that the principal of her share,-and such part of the income as she shall not have expended, shall be paid to such person or persons as she, by any instrument in writing purporting to be her last will and testament, shall direct, appoint or request, that the same should go, and be divided or bequeathed ; and on the failure of said Caroline to make such will or disposition, then in trust that the said property shall go to and be divided among the heirs at law of said Caroline, other than the widow of William Amory.”</p> <p>The plaintiff further averred, that said covenantors never declared any other limitations; that a majority of them were dead; that said Rufus G. Amory never acted in the aforesaid trusts; that John Amory, jr. was always sole acting trustee of said property and fund, until his decease in 1832, and paid over and accounted for all the said property, except said fund of $3333-33, to said Lucy and her heirs, and to said Caroline and her executor ; that said last mentioned sum still remained as a capital to pay the aforesaid annuity to the mother of said Lucy and Caroline ; that their said mother survived them, and also survived the said John Amory, jr. ; that said Lucy, in 1810, was married to Joseph Bennett, before named ; that there was a son of said marriage, viz. Joseph Bennett, jr., soon after whose birth his father died ; that said Lucy afterwards married the plaintiff; that there were children of said last marriage, viz. William A. Haskell, Edward Haskell, Charles Haskell, (who is dead, and of whose estate Benjamin Lincoln is administrator,) and Caroline Gorham, wife of Josiah Gorham ; that said Lucy died, before the year 1838, intestate, and that her said mother survived her, and died on the 1st of November 1838 ; that said Caroline Amory was never married, and died in the year 1827, leaving a will, which was proved and allowed; that Henry Cod-man, the defendant, was executor of said will, and that the said William A. Haskell, Edward Haskell and Charles Haskell, were her sole residuary legatees ; that all the debts, specific legacies, charges of administration, and all other bequests, except the said residuary legacies, and all other lawful claims upon the estate of said Caroline, had been duly paid by her executor, (the defendant,) leaving in his hands the whole reversionary interest m said fund of $3333'33 ; and that, unless said reversionary interest was disposed of by the residuary bequest in said will, the same was intestate property.</p> <p>The plaintiff further averred, that said John Amory, jr. died in 1838, having made no special provision for the continuance of the trusts aforesaid; that he left a will, which was duly proved and allowed, and of which the said Codman, the defend ant, was executor; that the defendant, as such executor, received assets more than sufficient to pay all debts, legacies and liabilities of said testator, and also said trust fund of $3333-33 ; that the mother of said Lucy and Caroline always received her said annuity (the interest of said fund) up to the time of her decease ; and that, at that time, the said William A. Haskell, Edward Haskell and Charles Haskell, were above the age of 21 years. [See Vincent v. Gorham, 3 Met. 343.]</p> <p>The plaintiff still further averred, that until the February term of this court, in this county, in the year 1843, the defendant, as executor of the will of said John Amory, jr., and the will of said Caroline Amory, held said fund of $3333-33, and interest thereon, in his possession, from the time of the decease of the mother of said Lucy and Caroline, and had acted faithfully with regard to the same; that he had doubts how and to whom he should pay it, and was not willing to pay it, except under the advice, direction and indemnity, of this court, sitting as a court of equity ; and that, at said term of the court, upon a bill filed by the abovementioned Benjamin Lincoln, as administrator of the estate of the aforesaid Charles Haskell, and by the aforesaid Joseph Bennett and Edward Haskell, it was adjudged and decreed that it was not reasonable that the said Codman should any longer retain and hold the shares of said fund belonging to the plaintiffs in said bill, but that the same ought to be paid over to them ; and it was further ordered and decreed that the shares of said fund described in the bill, consisting of $3333-33, and interest, which belonged to said Lincoln, as administrator of Charles Haskell, and to said Edward Haskell, respectively, consisted (by virtue of the residuary clause of said Caroline Amory’s will) of one third of one half of said fund, which would have devolved on their aunt Caroline, if she had survived her mother, and of the reversion of which said Caroline had the power of disposing by any instrument purporting to be her last will and testament; and that said shares of said Charles and Edward, respectively, also consisted of one fifth of one half of said fund, of which the interest would have devolved on their mother, Lucy Haskell, for life, if she had survived her mother; together with interest on said one third and one fifth of said halves of said fund, subject to all just allowances to the respondent for expenses in his office of trustee ; and that the share of said Joseph Bennett consisted of one fifth of one half of said fund, of which the interest would have devolved on his mother, said Lucy Haskell, if she had survived, as aforesaid, with interest as aforesaid, and subject to the allowance to said Codman, as aforesaid : And that it was further ordered, adjudged and decreed, that it be referred to one of the masters in chancery within and for the county of Norfolk, to state the account and interest, and what allowance said Codman should receive for his necessary expenses for counsel, incurred in his office of trustee; to report the same to the court, if the parties did not agree on the same; and that final judgment, and all the incidents thereof, be reserved until the agreement of the parties, or the coming in of the master’s report.</p> <p>It was also averred by the plaintiff, in the bill, that all the residue of the interest of said Lucy and Caroline in the aforesaid fund, in the hands of the defendant, is a share for the aforesaid Caroline Gorham, the same as that to the aforesaid Joseph Bennett, (with which the plaintiff has no concern,) and a share to the aforesaid William A. Haskell, the same as that adjudged, by the decree above recited, to Benjamin Lincoln. administrator of the estate of the aforesaid Charles Haskell, That, on the 13th of May 1839, the plaintiff’s said son, William A. Haskell, being largely indebted to the plaintiff, for money lent and expended in the education of said William A., and in fitting him out with necessary supplies for two voyages to sea, and having full confidence in the plaintiff, and being much disturbed because he could not receive of said Codman (the defendant) his said share of said trust fund, and being desirous that the plaintiff should procure said share for him, executed a deed to the plaintiff, wherein, in consideration of the sum of $500 received of the plaintiff, he did give, grant, sell and convey unto the plaintiff, his heirs and assigns forever, all his right, title, interest, property, claim and demand, which he then had, or of right ought to have or claim, or at any time thereafter might have, in and to the personal estate which Henry Codman, executor of the last will of John Amory, now holds, under and by said will, in trust for the benefit of the mother of Lucy Haskell and Caroline Amory deceased, the same being one fifth of one thousand pounds late lawful money; and also all his right, title, interest, property, claim or demand, which he then had, or might thereafter have, in and to any personal property, sum or sums of money, under and by virtue of the last will of said John Amory, and in and to the estate whereof said John died possessed, and the avails and proceeds thereof; and did, in said deed, release and forever quitclaim to the plaintiff, his heirs and assigns forever, all said William A.’s right, title and interest, to and in the premises aforesaid: That said William A., in June 1840, sailed from New London, on a whaling voyage, in the ship Columbia; that said ship returned in July 1843, but that said William did not return in her ; and that the plaintiff had not heard from him since June 1840, and did not know whether he was still alive, or not.</p> <p>The plaintiff further averred that said William A. was formerly married to Lydia Ashly, who is now dead; that there was a child of said marriage, viz. Charles Haskell, a minor, supposed to be living with its mother’s relations, in the county of Barnstable.</p> <p>The prayer of the bill was, that the court would issue a subpoena or notice to said William A. Haskell and his minor son, Charles Haskell, that they might be made parties to the bill, if necessary, and that a guardian ad litem might be appointed for said minor; that the defendant be required to make answer; that the court would decree said William A.’s share in said fund to be the same as had been decreed, in the suit abovementioned. to be the share of Edward Haskell; that the same had been so assigned to the plaintiff, that the defendant ought to pay it to him, on his giving bond with sureties, conditioned to pay over to said William A., his executors or administrators, or his said son Charles, or his guardian, such sum as might, by any court or board of referees, be awarded and adjudged to belong to either of them.</p> <p>The defendant, in his answer, admitted the narrating part ot the bill, and joined with the plaintiff in desiring that William A. Haskell and his minor son might be cited in and made parties to the suit, and that a guardian ad litem might be appointed for said minor. He admitted that he had in his hands a fund, the amount of which was not in dispute, and which, under a late ruling of this court, he should deem himself authorized to pay over to William A. Haskell, if living, were it not for the said assignment to the plaintiff, of which he had received notice from the plaintiff, who had made a demand on him for said fund; but that, from his knowledge of the character and habits of said William A., he had reason to doubt whether said assignment was made upon good consideration. He therefore prayed that the circumstances attending the assignment might be shown to the court, by the plaintiff, before any decree should be passed in the plaintiff’s favor, respecting said fund. He further stated, in his answer, that, as he did not know whether said William was alive or dead, he was doubtful to whom the beneficial interest in said fund belonged, and was unwilling to pay over the same, until the interest of said William A.’s minor child (in case said William A. was dead) should be fully considered and passed upon by the court.</p> <p>This case was argued, on the bill and answer, at October term 1843, and the opinion of the court was given at February term 1844.</p>

<p>Assumpsit on the common money counts. The principal defendant was absent from the Commonwealth, and was defaulted.</p> <p>Henry Codman, who was summoned as trustee of the principal defendant, set forth, in his answer, the documents inserted or described, and the facts stated, in the plaintiff’s bill in equity against him, in the next preceding case, (Haskell v. Codman, ante, 536,) and which he had admitted in his answer to said bill. He stated that said bill was still pending against him, and that this court had decided that the plaintiff could recover nothing, under the assignment in that bill set forth, beyond the amount fur which he had paid, and could prove that he had paid, an actual and equivalent consideration ; but that the question, whether he could recover even as much as he could prove the payment of an equivalent consideration for, was still open in said court. He further stated that he was unwilling to take the responsibility of paying over any part of the fund in his hands, except under the order and indemnity of a court capable of protecting him in so doing; and he submitted, that he could not be charged as trustee of William A. Haskell, in this process, and that he was not his trustee, except in a court of equity The conclusion of said Codman’s answer was thus: “ And this respondent, further answering, refers the court, with the plaintiff’s consent and approbation, to the reported case of Vincent v. Gorham, &f Trustee, 3 Metcalf’s Reports, 343d page, and to the files and proceedings of the suit in equity of Benjamin Lincoln &f others v. Codman, in which the final decree was passed, by the supreme judicial court, in Norfolk county, February term 1843 ; and to the files and proceedings of the suit in equity now pend mg, in this county, between Jesse Haskell and said Codman ; which are to be referred to, if there be any occasion, as a more full and accurate statement of facts by this respondent.”</p>

Trover for a cow. The parties submitted the case to the decision of the court, on the statement of facts which follows: “ The defendants, inhabitants of Canton, in this county, being owners of pasture lands in New Hampshire, in May or June of each year, drive their own cattle to said lands, and also drive others’ cattle, which they take to pasture at an agreed price, and, in each autumn, drive them back.

<p>A party to an exchange of horses, who is deceived by false representations, cannot main* tain an action of replevin for his horse, against the party who deceived him, until he has rescinded the contract, and returned, or offered to return, the horse received by him.</p> <p>On an exchange of horses by A. and B., A. was deceived by B.'s false representations, and sued out a writ to replevy the horse delivered by him to B., and went, with an officer, to B.;s premises, and there left the horse received of B., without any communication with B.: The officer then took the other horse, on the writ, and afterwards read the writ to B.; and A., at the same time, informed B. that his horse was returned. Held, that the action of replevin could not be maintained 3 it being commenced before the contract was rescinded by the return of B.’s horse.</p> <p>A. and B. exchanged horses, on a false representation, by B., that his horse was kind! On a trial of the horse, in the presence of B., the horse was found to be unkind, and B. requested A. to make a further trial, which A. refused to do: B. then promised A. that he would meet him on the next Monday, and “ make all right, and settle the affair of the horses." On Monday, B. sent a message to A. that he would not take the horse back: A. thereupon sued out a writ of replevin against B., without any further communication with him, and took the horse which he had delivered to B; in exchange. Held, that the action of replevin might be maintained 3 as a jury would be warranted in finding, either that A. had offered to return the horse to B., and that an answer had, by mutual consent, been postponed till Monday, and that B/s message, on that day, was a refusal of that offer; or, that the message was an express waiver of any further offer to return the horse.</p>

<p>When a defendant obtains a discharge under the United States bankrupt act, after action brought, the plaintiff cannot, on summoning in the assignee, recover judgment against the defendant, for the purpose of fixing the amount of the demand and filing the judgment as the basis of a claim to a dividend.</p> <p>A. brought an «action, in the court of common pleas, against B. & C.. on a note signed by them as partners, and amended his declaration, at the third term, by striking out the name of C.z B. then moved for leave to plead in abatement the nonjoinder of C., which motion was overruled: B. then pleaded the general issue and went to trial, and a verdict was returned against him: He thereupon alleged exceptions, and the supreme judicial court set aside the verdict, and remanded the case to the court of common pleas, with directions that B. be allowed to withdraw his plea of the general issue and file a plea, in abatement, of the nonjoinder of C.: B. filed such a plea, and A. demurred to it: A. afterwards summoned in BJs assignee in bankruptcy, who, by leave of the court, withdrew the plea in abatement, and pleaded the general issue, and filed, as a specification of defence, the discharge of B., under the United States bankrupt act of 1841, dated after the said plea in abatement was filed, but taking effect from a day previous to the filing thereof: On proof of this discharge, a verdict was returned against A. Held, that the proceedings before the last trial did not entitle A. to a verdict, nor to a judgment on the first verdict returned for him, but that the said discharge was a good defence to the action.</p>

<p>When a town, on receiving notice that one of its paupers is supported in another town, replies to the notice by denying that his settlement is in the town, and neither removes him nor makes any provision for his support, it is liable, without any new notice, for the expenses incurred by the other town for his support, after the notice as well as before, until suit brought.</p>

This was an appeal from a decree of the judge of probate, disallowing the following item in the administration account of the executor of the last will of Eunice Haskell: “ To paid income, accrued and collected after the death of testatrix, to executor, as per will, $491.” This sum included $178-75, credited to the estate of the testatrix, as rent of a house in Salem.

<p>This was a bill in equity, brought by the trustees under the will of Ephraim Foster, late of Boxford, for the purpose of settling the rights of the cestuis que trust. The whole case is exhibited in the opinion of the court.</p>

<p>Trespass for breaking and entering the plaintiff’s close, in Marblehead, called Devereux Beach, and taking and carrying away therefrom “ four thousand tons of ballast.” The defendants justified under the right reserved in a deed from the town of Marblehead, conveying the locus in quo to the plaintiff, in' 1839. ' The reservation in this deed was as follows: “ Reserving to the town the right and privilege to enter on the beach situate,” &c. “ and to take and carry away gravel and sand therefrom, as the said town may have occasion, for the making and repairing of their highways; but not to take the same away to such extent as to cause the tide to flow across said beach.”</p> <p>The trial was before Dewey, J. whose report thereof was as follows: “ The principal question connected with the point reserved was, whether the materials taken away by the defendants were embraced within the reservation in the deed. It appeared in evidence that those materials were, in part, stones of considerable size, embedded in and mixed with the beach gravel on the sea shore.</p> <p>“ To sustain the defence, the defendants offered to prove thstf the materia] taken by them is now, and at the time of the making of the deed to the plaintiff was, in the town of Marble-head, universally known as and called gravel, and that it was not generally known and called there by any other name ; and they offered evidence tending to prove that it was the same material that the town had always used for making and repairing their highways. The plaintiff objected to the evidence thus proposed ; whereupon the court ruled as follows: That where words, having an established meaning in the language, are used in no new, peculiar, or technical sense, they are to be understood as used according to such established use, applied, how ever, to the subject matter, and considered in reference to the entire language and provisions of the instrument in which they are introduced, and the purpose and object to which they are applied: That in reference to the reservation in the present deed, the words “ gravel and sand ” must be construed according to the ordinary meaning attached to these words, and modified by the subject matter to which they have reference, and the objects for which they are introduced; and that the reservation, being inserted in the deed apparently for the purpose of'securing to the town the right to take and carry away gravel and sand for repairing their highways, any material which, within the most extended known and general use of the words “ gravel and sand,” might be useful and appropriate for repairing highways, might be considered as embraced within the reservation. And the defendants were allowed to introduce any evidence tending to show that the material, taken away at the several times complained of in this action, was the same that had always heretofore been used for making and repairing highways in the town.</p> <p>“ The question, whether the material taken away was ‘ gravel and sand,’ was, under the instructions above stated, submitted to the jury to determine as a matter of fact. Neither party requested any ruling, as a matter of law, whether, upon the evidence offered, the material was or was not ‘ gravel and sand.’ The jury found for the plaintiff.”</p> <p>The questions of law, arising on the foregoing report, were reserved for the consideration of the whole court, who were to order a new trial, if the aforesaid rulings or instructions were wrong.</p> <p>The argument was had at the last November term.</p>

<p>Trover for a quantity of wood. At the trial in the court of common pleas, before Williams, C. J. the plaintiff introduced evidence to prove his title to the wood, and the conversion thereof by the defendant, by taking and carrying it away.</p> <p>The defendant justified the taking and removing of the wood, on two grounds. First, that the wood was lying on land of Enoch Plumer, who authorized and requested the defendant to remove it. Second, that the wood was lying in a highway in the town of Newbury; that the defendant was surveyor of highways in that town, and removed the wood as a public nuisance.</p> <p>The defendant, to maintain his defence on the first ground, introduced evidence tending to prove that John Thurston, now deceased, was formerly the owner in fee of the land in question ; that said Enoch Plumer, at the time of the removal of the wood by the defendant, was the owner of said land, as one of the legal representatives of said Thurston, and requested the defendant to remove the wood therefrom. To rebut this evidence, the plaintiff introduced evidence tending to prove that, in the year 1811, Benjamin Thurston made a verbal contract with said John Thurston, to purchase said land, and that he paid to said John the price thereof, according to said contract, that from the time of said purchase till the year 1816, said Benjamin used said land for the purpose of keeping his wood, carts and other things, thereon; that in 1816, said Benjamin sold and conveyed his farm, situated at or near the place in question, to the plaintiff, and has not since made any use of said land ; that the plaintiff, after he purchased said farm, as afore said, till within five or six years next before the trial, used said land, for the purposes aforesaid, peaceably and without interruption. Parol evidence was also introduced, tending to prove that within two or three years next before the trial, and before the present cause of action accrued, the said Benjamin Thurston released his interest in said land to the plaintiff; but no suck release was produced at the trial.</p> <p>Upon this evidence, the judge instructed the jury, that if it was proved, to their satisfaction, that Benjamin Thurston agreed to purchase, and actually paid for, the said land, and thereupon entered thereon and continued in the occupation thereof, uninterruptedly, for 20 years, he thereby acquired, for the purposes of this action, a title thereto ; but if he occupied said land only five or six years, he did not thereby acquire such title; that if the plaintiff, since he commenced the occupation of said land in 1816, continued in the adverse possession thereof, under a claim of right, for the term of 20 years, he thereby acquired a possessory title sufficient to maintain this action; but not by a possession for a shorter time.</p> <p>Upon the second ground of defence, it was proved or ad mitted that there had been, from time immemorial, a public highway in Newbury, leading from the house of S. Poor to the house of J. M. Plumer; that, in the year 1811, the wall by the side of said highway stood, and from time immemorial had stood, nearer the travelled part of the highway than it stood when the defendant removed said wood ; that, before the year 1811, said Benjamin Thurston and his father, who had occupied the house now occupied by the plaintiff near the land in question, had piled their wood on the road side of said wall, and near said wall; that in consequence thereof an accident happened in said road, in the year 1811, and that the people in the neighborhood were dissatisfied with the condition of said road The evidence also tended to prove that the selectmen of New-bury, in 1811, went to view said road ; that said John Thurs ton, Benjamin Thurston, the plaintiff and others, were present; that said selectmen declared that said ancient wall ought to be moved back to the place where the wall stood at the time of the removal of said wood by the defendant, and where it now stands; that this was assented to by all who were present; and that said wall was, soon afterwards, moved back accordingly, and has remained in the same place ever since. No record was shown of any proceedings of said selectmen, or of the town of Newbury, relating to said road, except an old record of the year 1719.</p> <p>It appeared that the land in question was between the line of the ancient wall and the present existing wall, and that, from time immemorial till 1811, it had been enclosed within,, and was part of, the field of said John Thurston; and it did not appear that any marks or monuments remained, by which the precise line of the way, as it existed before the year 1811, could be ascertained.</p> <p>The judge instructed the jury, on this point, that if the wall, as it stood when the defendant removed the plaintiff’s wood, was erected, and had been continued for more than 20 years, fronting upon or against said highway, and from length of time, or otherwise, the boundaries thereof were not known, or could not be made certain by records or monuments, then the said wall, as it then stood, was to be deemed and taken to be the true boundary of said highway.</p> <p>There was evidence tending to prove that, after the said wood had been removed by the defendant, he gave notice to the plaintiff where it was, and told him that he could have it, paying the defendant for removing it; and the plaintiff’s counsel requested the judge to instruct the jury, that if the original taking of the wood by the defendant was lawful, yet this subsequent statement, by the defendant to the plaintiff, of the condition on which he could have the wood, was a conversion. But the judge declined giving this instruction, and ir structed the jury, that if the original taking was lawful, yet if the defendant, by any act or prohibition, or refusal to deliver the wood to the plaintiff, had prevented the plaintiff from tak ing it, that would be evidence of a conversion.</p> <p>The jury returned a verdict for the defendant, and the plain tiff alleged exceptions to the aforesaid instructions.</p>

<p>Debt for rent of part of the School Farm, so called, in the town of Essex, from March 1838 to March 1839. The first count was on the lease hereinafter mentioned, and the second was for use and occupation</p> <p>The case was submitted to the court upon the statement oi facts which follows: On the 14th of November 1650, the town of Ipswich, “ at a general town meeting, granted to Mr. Robert Payne and Mr. William Payne, and such others as the town shall appoint., for the use of the school, all that neck of land beyond Chebacco River, and the rest of the ground (up to Gloucester line) adjoining to it. Major Denison and Mr. Bartholomew chosen by the town and added to the two Mr Paynes.”</p> <p>The lease mentioned in the plaintiffs’ first count was in these terms: “ This indenture made the 16th day of January in the year of our Lord 1650, [1651,] between Daniell Denison, Robert Payne, William Payne and William Bartholomew, all of Ipswich, in the county of Essex, in New England, on the one part, and John Cogswell jr., of Ispwich aforesaid, in the county aforesaid, of the other part, witnesseth, that the said Daniell Denison, Robert Payne, William Payne and William Bartholomew have demised, granted and to farm letten, all that parcel of land commonly called the Neck, beyond Chebacco River, bounded,” [here the boundaries were given;] “ which said land, situate and being in Ipswich aforesaid, was granted to Daniell Denison, Robert Payne, William Payne and William Bartholomew, by the town of Ipswich, for the use of a free school in Ipswich forever, to the said John Cogswell, jr. his heirs, executors and assigns, for and during the space of one thousand years next ensuing the date hereof to be fully com píete and ended; yielding and paying therefor yearly, during the said term, the yearly sum of fourteen pounds, in manner following; that is to say, four pounds in butter and cheese, five pounds in beef and pork, and five pounds in corn, at the current price they shall bear at the days of payment, which shall be yearly, the one half at or before the fifteenth day of November, and the other half on the fifteenth day of March after. All which payment shall be made to the said Daniell Denison, Robert Payne, William Payne and William Bartholomew, their heirs or assigns, at the days aforesaid, at the meeting-house in Ipswich , provided it shall be always lawful for the said John Cogswell to discount so much of the yearly rent as shall be at any time (if any be) charged upon the said lands, for town’s rates, but not for country rates or ministry maintenance ; and if it shall happen the said yearly rent, or any part thereof, to be behind and unpaid, after any of the days of payment aforesaid, by the space of one month, then it shall be lawful for the said Daniell Denison, Robert Payne, William Payne and William Bartholomew, or any of them, or their heirs or assigns, to enter and distrain, and the distress, therefor taken, lawfully to bear, lead, drive and carry away, and to retain the same until the yearly rent and arrearages be lawfully paid and satisfied : and if sufficient distress be not there to be found, then, at all times after, it shall be lawful for the said Daniell Denison, Robert Payne, William Payne and William Bartholomew, or any of them,' their heirs or assigns, upon the said lands and appurtenances to reenter, and the same to have again and possess, and the said John Cogswell, his heirs, executors or assigns, to expel and put out, any thing in this indenture contained to the contrary notwithstanding. In witness whereof, the parties aforesaid have to this indenture interchangeably set their hands and seals the day and year above written.” (Signed and sealed by the parties.)</p> <p>On the 19th of December 1651, the aforesaid lessors, Daniell Denison, Robert Payne, William Payne and William Bartholomew, gave to said John Cogswell an additional or explanatory deed, wherein they declared that it was their intent, in the aforesaid, indenture, that said Cogswell, his heirs or assigns, should have and enjoy the said demised prep' "ses during the whole term, and improve the timber thereupon growing and being, at his own liberty and pleasure. And they also therein declared that said Cogswell should “ have and hold the premises, to him, his heirs, executors and assigns, during the whole term, with all and singular the appurtenances, without any impeachment of or for waste, or to be in any way liable to be called to account for any strip or waste in respect of house or houses, or timber now or hereafter to be in or upon the premises, or any part thereof.”</p> <p>In the year 1683, Robert Payne made the deed of confirmation, which is copied in the margin.*</p> <p>In the year 1710, an instrument was executed by tenants oí said school lands, by which they expressly agreed to pay town taxes: [See this instrument at large, in the opinion of the court, post. p. 595.]</p> <p>The defendant purchased a part of the premises described in the aforesaid indenture of lease, subject to the rent therein reserved, but without any express words respecting the deduction of taxes ; and he holds a part of said premises by descent.</p> <p>In February 1819, the town of Essex, within which said leased premises are situate, was set off from Ipswich, and in corporated by St. 1818, c. 85. (5 Special Laws, 294.) By this statute, “ the grammar school house, with the lands, hereditaments, rents and profits heretofore received, and belonging to the said grammar school,” were reserved to the town of Ipswich.</p> <p>The defendant has paid rent to the plaintiffs up to the year 1838, and for many years past has been their agent for collecting rents from the other tenants of said School Farm, and paying over the same, which have been paid up to March 1838; said tenants having previously paid their rents directly to the plaintiffs.</p> <p>The defendant’s town tax in Essex, for the municipal year 1838, was $8*02; his county tax $2-30; and his proportion of the rent reserved by said lease was $6-61, for the same time ; but he has never paid any town tax in Ipswich, since the incorporation of the town of Essex ; nor has he, since said in corporation, been taxed by the town of Ipswich for the leased lands held by him.</p> <p>The votes and records of the town of Ipswich, and of the plaintiffs, so far as they are competent evidence, are made part af this case; also the statutes empowering the plaintiffs to act as trustees of the grammar school in Ipswich, viz. the stat ute passed in 1765, and the previous statute therein mentioned ; (3 Special Laws, Appx. 1, 2;) and St. 1786, c. 54. (1 Special Laws, 145.)</p> <p>The parties agreed that judgment should be rendered for the plaintiffs, if they were entitled to recover ; otherwise, that the plaintiffs should become nonsuit.</p> <p>This case was argued and decided at a former term. Various votes, &c. were referred to, which it is unnecessary to set forth at large, as they sufficiently appear in the arguments, and in the opinion of the court.</p>

Writ of entry to recover an undivided half of a parcel of woodland in Andover.

<p>Trespass for breach and entry of the plaintiff’s close, and carrying therefrom a quantity of hay. The defendants sever ally pleaded the general issue, and filed a specification of defence, denying that the plaintiff had title to the close, or that ne was in possession thereof at the time of the alleged trespass, and averring that he was then disseized thereof. Trial in the court of common pleas, before Williams, C. J. who reported the case as follows:</p> <p>The plaintiff, to prove his title, offered in evidence an execution, issued on a judgment recovered by him against Ephraim Peabody and others, and a return of the levy of the same, on the 21st of April 1831, upon the land described in the present writ and declaration, as the property of said Peabody, who was then in possession thereof.</p> <p>The officer’s return on this execution was thus: “ Essex, ss. April 21, 1831. Pursuant to the annexed execution, I have caused three disinterested freeholders of the said county to be sworn, as will be seen by the certificate of the justice, on the annexed execution, viz. Daniel Huse, chosen by the within named Jeremiah Tyler, the creditor; Stephen Barker, 2d was chosen by myself; and the third, Joseph A. Bodwell, was chosen and appointed by me for the within named Ephraim Peabody, the debtor, who was duly notified by me in writing, but neglected and refused to choose for himself; who afterwards viewed the land described by the appraisers on the annexed execution, shown to them, by the said Jeremiah Tyler, as the estate of the within named Ephraim Peabody ; and I have extended the annexed execution on said described land,” &c.</p> <p>The defendants objected, that said execution and return were not sufficient in law to pass the said Peabody’s title to the plaintiff ; but the objection was overruled, and they were admitted in evidence.</p> <p>Evidence was then introduced, tending to prove that, from the date of said levy to the death of said Peabody in 1837, he continued in the actual occupation of said land ; that in the spring of 1838, John Smith, one of the defendants, entered into possession of the farm formerly occupied by said Peabody, of which the locus in quo, before and at the time of said levy, was parcel; that the plaintiff, in the summer of 1838, sold the grass then growing on the locus, and that it was cut and carried away without interruption; that said Smith cm the grass in 1839, and in 1840 ploughed and planted a large part of the locus; that ne sowed the same in 1841, and in 1842 began to mow it.</p> <p>Jacob Tyler, a witness called by the plaintiff, testified that, about the 1st of June 1842, he called on said John Smith, at the plaintiff’s request, and gave him notice that the plaintiff “ would prosecute him, if he did any thing with the land.”</p> <p>Another witness, also called by the plaintiff, testified that, in the summer of 1842, he went to said land with the plaintiff, and saw persons carrying away hay ; that the defendant John Smith was one of them, but that he did not know the others. Being called again, this witness testified that, when he and the plaintiff arrived at the land, “ the grass had been mowed the same day; ” that he thought no one was then on the land ; that the plaintiff went upon it and put up the bars, and forbade the defendants and others to take them down, or to enter upon the land ; but that the said Smith, or some of the defendants, took down the bars, and entered and carried away the hay. On cross-examination, this witness said he could not swear positively that no one of the defendants was on the land when the plaintiff entered, but that he was “very certain no one was there.”</p> <p>There was testimony that all the defendants, except Wesley Smith and Aaron Gilcreast, assisted in mowing, before the plaintiff went to the land. There was no positive evidence that any of the defendants, except John Smith, Walter Smith and Aaron Gilcreast, assisted in carrying away the hay, after the plaintiff went to the land ; but there was some circumstantial evidence against Charles F. Smith.</p> <p>Upon this evidence, the defendants objected that the plaintiff was disseized of the locus in quo, and had not possession thereof, so as to maintain this action. This objection was overruled ; and the court instructed the jury, that if they were satisfied upon the evidence, that the plaintiff, before the said hay was taken from said land, peaceably entered thereon, no person I'eing then on said land, an4 took possession thereof under hi? said title, and the defendants afterwards, without his consent, and against his prohibition, entered upon the land, and carried away the hay, they thereby became trespassers, and the plaintiff was entitled to a verdict.</p> <p>The jury found a verdict for the plaintiff against all the defendants, except Wesley Smith, as to whom the plaintiff discontinued, before the case was committed to the jury. The defendants alleged exceptions to the ruling of the court.</p>

<p>When insurance is made on a vessel to her port or ports of discharge, the voyage terminates at the port where the cargo is substantially discharged.</p> <p>A vessel was insured at and from Salem to her port or ports of discharge in the river La Plata: All her cargo, except a few bundles of shingles, was discharged at Monte Video where she took on board merchandize intended for another vessel of the owner, then lying at Buenos Ayres, and proceeded to that port, where she was lost. Held, in a suit against the underwriters, that the assured was not entitled to recover, if the cargo was substantially discharged at Monte Video, and that it was for the jury to decide whether the cargo was so discharged</p>