Volume 5 — Massachusetts Reports

<p>This was an action of the case upon a policy of insurance, dated November 26, 1802, upon the ship America and cargo, at and from Boston to New Orleans, and at and from thence to Boston, or her port of discharge in the United States. The plaintiffs claim as for a total loss by shipwreck.</p>

<p>A supercargo, also a part-owner, is authorized by his owners to take a credit in a foreign port of goods to a certain amount, for which he is authorized to draw bills of exchange on them. He takes up moneys within the amount, for which he gives a bond, undertaking to bind himself and his owners. — It was held that an action of assumpsit did not lie for the obligee in the bond against the owners, for the moneys so advanced.</p>

<p>An assignment of the bulk of an insolvent person’s whole effects, to such of his creditors as would agree to receive it in full discharge of their debts, is void— although the description of the effects be general, so that it can be made certain —although the creditors retain their remedy against one, who has lent his name to the insolvent person, on his negotiable paper — although certain of the creditors assenting, have previously secured themselves in part, for their demands, by attachment — although the assent of some of the creditors is given by attorneys, whose authority does not appear — and although the registers of certain vessels, making part of the effects assigned, were not exchanged, until after a sale by the agents of the assignees.</p>

<p>The defendant was indicted at the present term for corruptly taking and receiving, on the fourteenth day of October, 1807, of one Ebeneser Clough, more than at the rate of six per cent, per annum, for the loan of 200 dollars for ninety days, contrary to the statute, &c.</p>

<p>This was a real action, m which the demandant claimed possession of certain lands in Westport, in the county of Bristol, in which county the action was pending. It was submitted to the opinion of the Court on a case stated by the parties, in which the following facts were agreed, viz.</p>

<p>This action was pending also in the county of Bristol, and was based upon the following promissory note, viz.</p> <p>“ I, the subscriber, promise to pay William Borden, or order, nine thousand dollars, at or on the twenty-fifth day of March next, he procuring a good warrantee deed of his homestead estate, agreeable to bond, for which the above sum is to be paid. Witness my hand, Jonathan Borden. October 16, 1804.”</p>

<p>The declaration in this action was in case, and a new count had been filed, as follows, viz. “ for that the said plaintiffs were, by an act of the General Court, &c., passed, &c., made and constituted a corporation or body * politic by the name of [*81] The Worcester Turnpike Corporation, to make, lay out and keep in repair a turnpike road from Roxbury to Worcester, in the course, direction and manner described in said act of incorporation, and afterwards, at, &c., on, &c., in consideration that the plaintiffs, at the request of the said Aaron, had admitted him to take one share in the capital stock of said corporation, and to become a proprietor therein, he, the said Aaron, then and there undertook and faithfully promised the plaintiffs, that he would take the said one share in their said stock, and would pay all such legal assessments as should thereafter be made by the government of said corporation, after the same should have been organized, and carried into operation according to the said act of incorporation, at the time the same should become due and payable; provided, however, and his the said Aaron’s promise aforesaid, was upon these conditions following, to wit, that the number of shares in said capital stock should be six hundred, and also that the said road should be finally located and made from Worcester, so as to cross Charles river, near the upper falls, so called, at or near General Elliot’s mills, thence in the most eligible and practicable route near the Punch Bowl Tavern in Rox-Imnj, thence down near Roxhury Meeting-House; and the plaintiffs aver that afterwards the said corporation was fully organized and went into operation, and the number of shares in the said stock thereof was six hundred, and the said road was located and made in the course and direction in the conditions aforesaid described, and the said Aaron, as such proprietor as aforesaid, paid the first assessment of twenty dollars on his said share ; and afterwards, to wit, at said Boston, on, &.C., the government of said corporation made a second assessment of ten dollars upon each and every of the shares in the said stock, to be paid into the treasury of said cor- [ *82 ] poration, on or before, &c.; and * there afterwards on, &c. the government of the said corporation made a third assessment of thirty dollars, &c., and there afterwards on, &c. the government of the said corporation made a fourth assessment of twenty dollars, &c., all which said assessments amounted in the whole on said Aaron’s share to the sum of sixty dollars; of all which said assessments, at said Boston, on the said days on which the same were respectively made as aforesaid, the said Aaron had notice, and was requested to pay the same: Yet although the said times for the payment of the said assessments are all long since passed, the said Aaron hath not paid said several sums of money assessed as aforesaid, nor either nor any part thereof, to the plain tiffs, but neglects and refuses so to do.”</p>

<p>A notice from the overseers of the poor for the town of A. to the overseers of the poor for the town of B., stating that a pauper has his settlement in B., that he is resident in A., and requires support, which has been afforded him by the overseers of A., is sufficient, within the statute of 1793, c. 59. § 13. to estop the town of B. from contesting the settlement of the pauper in B. in an action Sir such support.</p>

<p>The defendant was indicted, at the Municipal Court for the town of Boston, for keeping a table in his house for the purpose of playing at billiards for hire, &c., contrary to the statute of 1798, c. 20. <§> 2.; and being convicted below, he appealed to this Court at the last November term.</p> <p>Upon entering the appeal here, the defendant moved the Court that the indictment against him might be quashed; the penalty enuring to the town of Boston; and William Stephenson, the foreman of the grand jury who found the bill against him, being, at the time of the finding, a taxable inhabitant of said town.</p> <p>The cause was continued to this term upon this motion, and was now shortly argued by Bidwell, attorney-general, and Austin, county solicitor, for the commonwealth, and Selfridge and Richardson for the defendant.</p>

<p>The action was assumpsit on what is commonly called a bank-bill or note. The declaration alleged the promise at Nantucket.</p> <p>The defendants pleaded a misnomer of their corporate name in bar of the action, to which the plaintiff demurred generally, and the defendants joined in demurrer.</p>

<p>This was also assumpsit on a bank-note which the plaintiffs held as bearers. At the Common Pleas, the general issue was pleaded by the defendants by the name of “ The President and Directors of the Nantucket Bank,” and a verdict was found for the plaintiffs. The defendants moved the Court below in arrest of judgment for divers causes. Failing in their motion, they appealed to this Court, and renewed their motion here, which was submitted without argument. The several grounds of the motion will appear in the opinion of the Court, as delivered by</p>

<p>Where a bank has issued its notes by a wrong corporate name, and is sued on its notes by such name, the Court of Common Pleas ought to permit the plaintiff to amend after demurrer without costs ; and if they refuse it, this Court will grant the amendment on the appeal.</p> <p>Original writs against aggregate corporations of every description must be served thirty days at least before the return day, by statute of 1785, c. 75. § 8.</p>

This action [Vide ante, Vol. 4, 245.] was again tried before the Chief Justice, at the last November term, in this county.

The declaration was in case, and alleged that the defendant, on the 15th of January, 1806, hired a horse and sleigh of the plaintiff to ride from Boston into the country four miles, and to return at seven o’clock in the evening: yet the defendant so carelessly and immoderately drove and rode the said horse and sleigh, and neglected to take proper care of said horse, and exposed him after said immoderate driving and riding for so long a time to the extreme coldness of the…

<p>When a felony or misdemeanor is in fact committed, a conspiracy to commit such felony or misdemeanor cannot be indicted and punished as a, distinct offence.</p>

<p>This was a bill in equity [pursuant to the provisions of the statute of 1798, c. 77, <§> 1.] for the redemption of a certain messuage, &c. heretofore conveyed by the plaintiff to the defendant Weld in fee with defeasance.</p>

<p>When m trespass quare clausum fregit commenced before a justice of the peace, the defendant pleads that the locus in quo is part of a public highway and that the plaintiff had wrongfully encumbered it with a gate, &e., the justice should proceed no farther in the hearing, but recognize the defendant to enter the action at the next Court of Common Pleas.</p> <p>If to such plea the plaintiff replies a prescription in those whose estate he hath, to maintain a gate on the highway, he need not traverse the highway, nor the wrongful encumbering it with the gate.</p> <p>The plaintiff by his prescription alleges a right to maintain the gate at all seasons of the year, when it shall be found necessary for the preservation of the grass, &c., and avers that,finding it necessary, S;c., he erected the gate — and held good on general demurrer.</p> <p>But the want of an averment of his finding it necessary at the time of the trespass would be bad on demurrer, although it is helped by the defendant’s pleading over.</p>

The declaration in this action was “ in a plea of the case for that whereas at said Boston, on the fifth day of May now last past, one Royal Makepeace had contracted and agreed with the plaintiff to convey to him, or any other person whom he should direct and appoint, certain lots of land in Cambridgeport, so called, in Cambridge, in our county of Middlesex, of the value of 5,371 dollars 67 cents, there afterwards on the twenty-fourth day of July last past, it was agreed by…

<p>The writ of error, in this case, was brought to reverse a judgment of the Court of Common Pleas for this county, rendered upon the report of referees appointed pursuant to the statute of 1786, c. 21.</p>

<p>An assignment of effects by an insolvent debtor in trust for certain of his creditors, made by a conveyance to which they are not parties nor assenting, is void as to the other creditors.</p>

This was a replevin of sundry goods claimed by the plaintiffs, and taken and detained by the defendant. The defendant pleaded in bar, that the property of the goods was in Abel W. Atherton and James Dalton. The plaintiffs replied that the property was in themselves, and thereupon issue was joined.

<p>In an action, which was pending in the county of Norfolk, and was tried upon the issue of non assumpsit before Sedgwick, J., at the last term in that county, a verdict was found for the plaintiff, subject to the opinion of the Court on a point reserved, which is hereafter stated. The cause stood continued nisi, and at this term, the opinion of the Court was delivered as follows by</p>

<p>A citizen of the United States, being in the East Indies, endorses to merchants living in Madras, a bill of exchange, payable in London, and returns to the United States: the endorsees forward it to their agent in London, by whom it is presented and protested for non-acceptance and non-payment; and thereupon he returns it to his principals, the endorsees, in Madras, who, within a reasonable time afterwards, send notice to the endorser, then in the United States. This notice was held sufficient to charge the endorser.</p>

<p>Assumpsit by the plaintiffs as endorsees against the defendant ns endorser of a promissory note dated February 28th, 1807, by which one William Barker, for value received, promised the defendant, to pay him or his order 269 dollars, 29 cents, in six months from the * date, with interest. The declaration sets [ * 171 ] forth an endorsement by the defendant to the plaintiffs, a demand on Barker, and notice to the defendant on the 28th of August, 1807.</p>

<p>To an indictment for talcing usurious interest, the defendant pleaded the pendency of a qui tarn action against him for the same cause: the replication alleged that, since the plea pleaded, the plaintiff in the qui tarn action had become non-suit : upon demurrer the replication was adjudged insufficient</p>

<p>This was an action of debt, in which the plaintiff declares that he, on the second day of June, 1801, at the special instance of the defendant, and for his debt, as his surety, became bound with him, and one Francis J. Oliver, jointly and severally by bond to the United States, to pay them the sum of 2,680 dollars on or before the second day of June, then next, in consideration whereof, the defendant promised him that he would pay that sum by the time, and save him harmless from all damages and costs : that the defendant was duly requested to pay the money due to the United States, but neglected: that in consequence of the refusal of the defendant to pay as he ought, the plaintiff became liable on his bond, and was obliged to pay, and has actually paid to the United States 1,322 dollars, 98 cents: that thereby, in pursuance of the * act of congress, the plaintiff has become the legal [*184] assignee of the bond, and entitled to have every ad vantage and priority, which the United States thereby possessed.</p> <p>In this action Charles Paine, Esq. was summoned as the trustee of the defendant, from whose disclosure, in answer to the interrogatories put to him, it appears (among other things not necessary to be stated in relation to the opinion of the Court in this case) that on the 22d of April, 1802, the defendant, being a merchant, committed an act of bankruptcy : that on the 4th of May in that year a commission of bankruptcy issued against him: that Paine was chosen assignee under the commission: that an assignment was accordingly made: that Smith obtained his final discharge on the 10th of July, in the same year: that the bond mentioned in the plaintiff’s declaration became due on the 2d of June, in that year: that a suit was instituted against Smith, but that no satisfaction was obtained thereby: that on the 4th of September, 1802, Mr. George Blake, attorney of the United States for the district of Massachusetts, gave notice to Mr. Paine, then assignee of Smith, of the bond declared on in this case, and requested payment of it, to which Mr. Paine replied that he had no effects belonging to the estate of Smith then in his hands : that the plaintiff paid the amount due by the bond on l he 11th of March, 1803: — that after giving this bond, viz. on the 20th of February, 1802, Smith gave at the custom-house in Boston three other bonds to the United States for the payment oi duties, in each of which he, the said Paine and one William Hall, were sureties: that the money due on these last-mentioned bonds, was paid as they respectively became due, the last payment being made before the plaintiff paid the money due on his bond; that Hall, the co-surety with Paine, has commenced an action against him, as the assignee of Smith, to recover the money by him paid; and that at the time the summons in the present action was served [ * 185 ] upon * Paine, he had in his hands 1,000 dollars of the property of the bankrupt.</p>

<p>This was an action of debt upon a bond, originally executed by Stephen Bruce, Isaiah Doane and the»present defendant, the two former being dead before the commencement of this action.</p>

This was assumpsit by the plaintiff against Matthias Bruen and James Bruen, both of New York, in the county and state of New York. The writ commanded the officer to attach their goods or estate, and for want thereof to take their bodies, if they [ * 194 ] might be found in his * precinct.

This was a libel for a divorce a vinculo, for the adultery of the wife, and came before the Court at an adjournment of this term holden on the 24th of July. The libel was filed in the clerk’s office on the 12th of June, and thereupon a summons issued to the wife to appear and answer at the adjournment before mentioned. The libellant moved that the libel may be sustained, and the wife called to answer.

<p>Where A. was building a vessel, and it was agreed between him and B., C. and D. that they should own three sixteenths of the vessel, and pay that proportion of the bills; B. paid his sixteenth part of the bills, but C. and D. did not, and A. did not execute or tender a bill of sale to B., but employed the vessel on his own account; it was held that A. was accountable to B. for the amount of the •supplies he furnished, and he was adjudged the trustee of B.</p> <p>Practice. Where in a foreign attachment the plaintiff knowingly summons a fictitious trustee to give the Court jurisdiction in a county where no trustee lives, and this matter is pleaded in abatement, and the collusion found by the jury, the writ shall abate; but the Court will not stay proceedings upon motion for this cause.</p>

<p>This was a scire facias brought against the defendants, who had been summoned in a former action as the trustees of Hudson and Smith, and not appearing upon the original process, now came in and submitted to an examination.</p>

<p>A stranger to a suit in which a trustee is examined, is not concluded by the examination from proving that there were other facts within the knowledge of the trustee, which he did not disclose, or that there was collusion between him and the plaintiff or defendant in such suit.</p>

Hayward appeared at the Common Pleas at the term when the writ was returned, and submitted to an examination, and on his answers to the interrogatories proposed by the plaintiff, he was adjudged trustee. From this judgment he appealed, and on his disclosing new facts here in this Court, he was discharged. He now * moves for costs, because he submitted to an ex- [*213] amination at the first term, and has been discharged.

<p>A. holding promissory notes against B., and B. holding a note of A. for a less amount, not negotiable, payable by instalments, A. without the assent of B. endorses the sums due from him to B., as the instalments fall on B.’s notes, which were not then payable. It was held that A. was still the trustee of B. to the amount of his note to B.</p>

<p>This was an appeal from a decree of the Court of Probate for this county, approving and allowing an instrument as the last will and testament of Nathaniel Fellowes, formerly a merchant of Boston, but lately resident in the Island of Cuba, where he is said to have executed the will in question. . [ * 220 ] * The appellant, who was the father of the grandchildren and heirs at law of the deceased, filed the following reasons of appeal, pursuant to the statute of 1783, c. 46. $ 4.</p>

<p>This was a motion for a rule upon the defendants to show cause why the Solicitor-General should not be directed to file an information in the nature of a quo warranta against them, that the said company might be dissolved, and their corporate powers be adjudged void.</p>

<p>Ejectment for a parcel of land in Biddeford. The defendants pleaded not guilty to a part which they describe, and a disclaimer as to the residue, and on both pleas issues to the country were joined.</p>

<p>In this action, which was transitory, the defendants prayed oyer of the writ, which being had, they pleaded in abatement that at the time of the purchase and service of the writ, neither the plaintiffs, or either of them, nor the defendants, or either of them, lived within the county of York; but the said W. D., one of the plaintiffs, lived in Gloucester, in the county of Essex, and J. D., the other plaintiff, in Portsmouth, in the state of New Hampshire, and the defendants then both lived in Plymouth, in the county of Plymouth: Wherefore the plaintiffs ought to have brought their action, if they had any good cause of action, to the Court of Common Pleas, in the county * of Essex, or in the county of Plymouth, [ * 238 J and not in this county; and they pray judgment of the writ, that it may abate, and that double costs may be allowed them.</p>

<p>This was a writ of error coram wins, brought to reverse a judgment recovered in this Court by the defendant in error, as she was administratrix of Samuel Nason, deceased intestate, in a real action against the plaintiff in error.</p>

<p>This action was assumpsit for the support of one Jonathan Stone, and was tried on the general issue, before Parker, J., at the sittings in York after the last May term, when a verdict was [ * 245 ] found for the plaintiff, * subject to the opinion of the Court upon the following facts reported by the judge, who sat in the trial.</p> <p>The plaintiff is the keeper of the gaol in Alfred, to which St,ont was committed September 20th, 1806, pursuant to an order of .the Court of Common Pleas for the county of York, upon a judgment that he was the putative father of a bastard child.</p> <p>The support of the prisoner by the plaintiff was agreed, and it was in evidence that he has his legal settlement in the town of Shap~ high in this county, and has a father capable of affording him relief and support.</p> <p>It was also proved that the plaintiff notified the overseers of the poor of Alfred in the winter of 1806-7, of the poverty of the prisoner, and of the necessary relief afforded him by the plaintiff.</p> <p>Some evidence respecting the prisoner’s ability to support himself was offered to the jury, and they were directed, if they believed Stone unable to support himself in prison, • and that the plaintiff, after notice to the overseers of Alfred, had relieved and supported him, that the defendants were liable for all necessary expenses incurred by the plaintiff in that behalf from the time of such notice, and they found a verdict accordingly.</p> <p>The action stood over; and now, at this term, Bartht, of counsel for the defendants, moved that the verdict be set aside, and a new trial granted 1. Because the case found the father of the pauper living within the commonwealth, and of sufficient ability, who was liable, and ought by law to have been called upon rather than the present defendants. 2. Because the pauper in this case was committed upon a criminal prosecution, and such prisoners are, by statute of 1794, c. 48., made the proper charge of the commonwealth.</p>

<p>This was an action of the case upon a promissory note.</p>

In this case, the parties agreed to a statement of facts, on which the right of the plaintiffs to recover was submitted to the opinion of the Court, without regard to the form of the action.

<p>This was an information filed by the Solicitor-General against, the defendants upon the second section of the statute of 1799, c. 87 by which it is made the duty of every corporate town to be constantly provided with * a public Protestant teacher [ * 258 j of piety, religion and morality; and the information charges them with the neglect of this duty.</p>

<p>Where, upon a petition for a review, the Courtperceive on inspection of the papers that the judgment complained of would be reversed upon error, they will not grant a review.</p> <p>A constable cannot serve an original writ in areal action.</p>

<p>This was an action of debt on a probate bond. The defendants prayed oyer of the bond.</p>

<p>The confession of a witness in a criminal prosecution, as to his incompetency cannot be admitted to disqualify him.</p>

<p>The statement of the demand, upon which a rule of reference is made before a justice, pursuant to statute of 1786, c. 21., must show on what account, or for what cause, the demand was made.</p> <p>If the Common Pleas refuse to accept the report for a defect of authority in the referees, they cannot award costs to the party, against whom the report waa made, but must order the parties to go thereof without day.</p>

<p>The defendant was attached to answer to the plaintiff, one of the fish-wardens of the town of Scarborough, in this county, who sues as well for himself as for the poor of the said town, “ in a plea of debt, for that said * Joseph, at said Scar- [ * 267 J borough, on the first day of July last past, and on three other days and times between that day and the last day of said July, at the mouth of Little River, and in the sea, near the shore comprehended within the eastern and western boundary lines of said town of Scarborough, did, by means and use of a certain seine or drag-net, take and catch thirty fish called bass, of the value of ten dollars, against the form of the statute in such cases made and provided; oy force whereof the said Joseph hath forfeited for each and every of said offences, the sum of fifteen dollars, amounting in all to sixty dollars; and an action hath accrued to the plaintiff to sue for and recover the same as aforesaid, to be disposed of according to law ■ Yet though requested,” &c.</p>

<p>The principal question submitted to the Court in this case was, whether Thornton, from his answers to the interrogatories put to him, was to be adjudged trustee of the principal defendants, Todd Worthley.</p> <p>It appears from the answers of Thornton, that he is the marshal of the United States for the district of Maine, and that, having seized sundry goods of the defendants to satisfy five executions, which he then held against them at the suit of the United States, he' regularly sold them at auction, and after satisfying the executions and his own fees, with the expenses incident to the sale, &c., there remained in his hands a balance of about 200 dollars. .</p> <p>The sale was on the 28th of February, 1807, and on the 24'th o that month, as he says it appears from an examination of the writ and return, Day &/• llsley sued out their writ against the present defendants, returnable to the next Court of Common Pleas in this county, and a deputy sheriff attached, on that writ, the goods which he, the marshal, afterwards sold. The service was made upon Thornton in the case at bar, on the 27th day of April, 1807.</p>

In this action, which was to recover a debt due from the estate of the defendant’s intestate, the defendant at the Court below pleaded the following plea in bar. * “ And now the said Betsey comes and defends, &c., [ * 276 ] when, &c., and protesting that at the time of the service of the original writ in this cause, she had no goods, effects or credits of the said Caleb in her hands to be administered, for plea she prays judgment if the plaintiff his action aforesaid thereof…

<p>In replevin, the defendant at the term of the Common Pleas, when the writ was returnable, pleaded in abatement of the writ and declaration, alleging that, before the commencement of this action, he, the said Stubbs, sued a writ of replevin in due form of law for the same goods and chattels, described in the present writ, which goods and chattels were then in the possession of one Jonathan Lund, then arid ever since a deputy sheriff of this county; and the said Stubbs delivered his said writ to one Jonathan Sparrow, then and now a coroner for the county, to be served according to law, who, by virtue of said writ, took the goods out of Lund’s possession, * and delivered them to the said Stubbs, he [ * 281 ] having previously given the bond required by law. And the said goods continued in his possession until the plaintiffs sued out their writ in this case, and delivered the same to the said Lund, still a deputy sheriff, who took them from the defendant, and delivered them to the plaintiffs. The defendant’s action against Lund was duly entered and still pending. And the said Stubbs says, that if the plaintiffs had any right or property in the said goods, they should have impleaded him in an action of trespass or trover, and not replevin. All which he is ready to verify, &c.</p>

<p>Where a statute had made promissory notes of a certain description, made or is- - sued after a given day, utterly void, it was held competent for the makers of such notes, in an action brought against them upon notes bearing date before the day, to prove that they were, in fact, made and issued after the day.</p>

<p>A surveyor of the highways is obliged by law effectually to repair the ways within his district, and when the town does not make sufficient provision, he has his remedy against the inhabitants.</p> <p>A surveyor, sustaining damage from a defect in the highway within his district, and which arises from his own neglect, has no remedy against the town for such damage.</p>

<p>Where one gave a negotiable note, as guardian to an insane person, it was held that he was liable in his individual capacity, after his guardianship was discharged.</p> <p>A negotiable note, given in consideration of a simple contract debt due, is a discharge of the simple contract.</p>

<p>Where the messenger of the commissioners of a bankrupt had delivered goods of the bankrupt to a stranger, taking his obligation to keep them safely, and to redeliver them on demand, it was held that the bailee could not maintain replevin against one who had taken them; property, either general or special, beng required to be shown in replevin, though possession is sufficient to maintain trover.</p> <p>In an action, depending on the bankruptcy of a stranger, and in which the assignee is not plaintiff, the plaintiff must prove the act of bankruptcy, and the regular issuing of the commission.</p>

<p>The plaintiff declares in debt “ for that whereas one J. F. before A. R. Esq., one of the justices of the peace for this county, on the ',4th day of May last, recovered judgment against the plaintiff for the sum of nine dollars and ninety cents debt or damage, and two dollars eighteen cents charges of suit, on which judgment, after-wards, on the 28th day of the same May, a writ of execution in form prescribed by law issued, directed to the sheriff of said county or his deputy, which writ of execution was afterwards on the same day delivered to the said Boswell, then and ever since a deputy sheriff of said county, on which writ of execution the said Boswell afterwards, on the 13th day of June last, at said W., wilfully and corruptly demanded and received of the plaintiff the sum of two dollars and seventy-nine cents, being a greater fee or fees for the service and collection of said writ of execution, than by law is allowed and provided in such cases; whereby he has forfeited and ought to pay to the plaintiff the sum of thirty dollars, agreeable to law, he being the first person who has sued for the same. Yet though requested,” &c.</p>

<p>Practice. Where referees have reported in favor of the plaintiff, and before judgment the parties adjust the action, and the plaintiff discharges the defendant, the plaintiff’s counsel has no lien on the cause for his fee; nor, if after judgment, has he any remedy hut by action against his client.</p>

This was an action of the case against the defendant, a coroner of the county of Hancock, for misfeasance in his office in the service of an execution issued upon a judgment recovered by the plaintiff in the Court of Common Pleas, for the county of Kennebeck, against one John Minott, a deputy sheriff of the county of Hancock.

<p>Implements of husbandry used in tilling the land, are not within the statute of 1805, c. 100., exempting the tools of a debtor from attachment and execution.</p>

<p>Debt on bond. Upon oyer had, the following appeared to be the conditions, viz. “ The conditions of this obligation are [ *315 ] such that whereas Isaac Hodsdon has * this day, by virtue of a writ of replevin, purchased out of the clerk’s office of the Court of Common Pleas for the county of Hancock, and directed to the coroner of said county, replevied sundry goods, wares and merchandise as mentioned in the schedule annexed to the writ, of the value of one hundred and sixty-four dollars and forty-three cents, which goods were attached by the said Andrew Morse, a deputy sheriff, at the suit of Richard Pike, merchant, as the goods of one Moses Hodsdon. Now, if said Isaac shall prosecute his said replevin to final judgment, and recover the said goods on final judgment, then this obligation to be null and void, otherwise to remain in full force and virtue.”</p> <p>The defendants then plead in bar, that the said Isaac sued out a writ of replevin in due form of law against the plaintiff to replevy sundry goods, wáres and merchandise, which had been attached as set forth in the condition of the bond; which writ was directed and delivered to a coroner to execute, who required the defendants to execute the said bond ; that they accordingly executed it; that the coroner returned it together with the writ, and that the said conditions are contrary to the directions of the writ.</p>

In this action John Chandler, Esq., sheriff of the county of Kennebeck, was summoned as trustee of Ross, the defendant.

<p>The libel in this case charged the respondent with committing the crime of adultery with one FF. R. Follanshe. It was moved for the libellant, that Follanshe be sworn as a witness to prove the charge in the libel.</p>

The plaintiffs demanded seisin and possession of a tract of land described in the writ, lying in Georgetown, in this county, and declared that one John Drumnond, being seised thereof in his own demesne as of fee, on the 27th of June, 1803, by his deed of bargain and sale, and of mortgage, duly executed and recorded, for a valuable consideration, conveyed the same to the plaintiffs, to hold in tee and in mortgage, by force whereof they became seised. &c., and ought to be in…

The defendant was indicted, September term, 1807, for that :je, on the 17th day of May, then last past, the same day being Sunday, with force and arms at Bowdoinham, in this county, did take and catch eight shad, and eighty-five alewives, in the waters of Cathance river, in said county, against the peace, and contrary to the form of the statute in that case made and provided.

<p>No action lies by one town against another for the expense of supporting a pauper, unless such expenses accrued within three months previous to notice; hut whether this limitation extends to the expenses of the removal or burial of the pauper, qucere.</p>

<p>This was an action for medical and surgical aid, rendered by the plaintiff, a physician, to sundry persons confined in the county gaol in Wiscasset, charged with offences against the commonwealth.</p>

The single question in this action arose on the answers of the persons summoned, as trustees to the interrogatories put to them upon their examination. The facts upon which the question was decided, will be understood from the recital contained in the opinion of the Court, which (the action being continued nisi) was delivered at Lenox, at the succeeding September term in Berkshire, by

Assumpsit by the endorsee of a promissory note dated the 11th day of June, 1798, made payable to James Drummond, jun., or order, and by him endorsed in blank.

<p>A., having entered the close of B., and having cut a quantity of cord-wood, sells the same to C., who hires D., the master of a coasting vessel, to go in company with C., and transport the wood to a market; D. was held liable for the value of the wood in an action of trespass quare clausum fregii, brought by B., although it was agreed he was ignorant of the original trespass committed by A. See Rol. Ahr. 552.1.17.22. 30.</p>

<p>1 his was a replevin of sundry chattels. The defendant avows the taking them, as a deputy sheriff, in virtue of several writs of attachment against one J. Hall. The. plaintiff pleads in bar of the avowry, that the property of the chattels was in himself at the time when, &c., upon which he tendered an issue, which was joined.</p>

<p>This was a writ of entry, in which Dexter Higbee, Silas Higbee, David Higbee, and Aaron Gray, and Hannah, his wife, in her right, demanded against the tenant two undivided eighth parts of two hundred acres of land * in Sheffield, known by [ * 345 ] the name of Higbee’s Grant, and of which the demand-ants allege that they were seised within thirty years last past, and until they were disseised by the tenant.</p>

<p>This was a writ of entry, in which the demandant claims the land described in the count as his right and inheritance, alleging his own seisin within thirty years, and a disseisin afterwards by the tenant. The tenant pleaded the general issue, which was joined, and a verdict found for the tenant.</p>

<p>In an action of covenant broken, the plaintiff declares upon a deed by which the defendant conveyed to him two several parcels of land in Lanesborough, and covenanted that the first of the parcels contained twenty-nine acres and twelve rods, when in fact it contained but twenty-five acres; and that the second parcel contained six acres and one hundred rods, when in fact it contained but four acres, and so the defendant his covenants aforesaid has broken.</p> <p>* The defendant prays oyer of the deed declared on, [ * 356 ] and has it. In the deed the defendant, for a valuable consideration, conveys to the plaintiff in fee two tracts of land. The first is described as the easterly end of a fifty acre lot on what is commonly known by the name of Shirley’s Grant, which the defendant bought of Thomas Powell and Ephraim Powell, Jun., the said easterly end extending westwardly as far as the main run of water, which passes through said land, containing twenty-nine acres and twelve rods of ground. The second tract is described as lying on a stream of water called MUlbrooTc, which the defendant bought of Samuel Warren, which he then bounds by certain monuments, lines and courses, coming round to the first boundary, containing six apres and one hundred and thirty rods of ground. And there is a covenant to warrant the granted premises against the lawful claims of all persons.</p>

<p>A promissory note is made by A. for a sum of money payable to B. on a day certain. C. writes underneath, “I acknowledge myself holden as surety for the payment of the demand of the above note, witness my hand, C.” In an action ' against C. on this note, it was held to be a joint and several promise.</p>

<p>This action was assumpsit, in which the defendants are described as of the city, county and state of New York. The service endorsed is an attachment of nominal property [a chip] of the defendants, and the leaving of a summons with their attorney, William P. Walker.</p>

<p>Practice. Where a petitioner sets forth a legal title to a review, the Court wi not grant it on his petition.</p> <p>But in such case, where the petition does not appear to the Court vexatious, ar.d the facts alleged in it are not denied by the respondent, the Court will not award costs to the respondent.</p>

Assumpsit on two promissory notes signed by the defendant’s intestate, one dated October 11th, 1802, for 58 dollars, 50 cents, payáble to the plaintiff, the other dated December 8th, 1802, for 288 dollars, 34 cents, payable to Jonathan Melvin, and endorsed to the plaintiff, both notes being on interest.

<p>This was a scire facias against the defendant as bail of Frederick Falley, and was entered by appeal from the Common Pleas at the last May term, in this county.</p>

This was an appeal from a decree of the judge of probate for this county, and being entered at a former term of this Court, now stood upon the continued docket. The first day of the term the appellant became nonsuit; whereupon Lincoln, of counsel for the respondent, moved for the affirmation of the decree below, and for costs.

<p>This was an action of debt, in which the plaintiff declares on a judgment of the Court of Common Pleas for this county, rendered in his favor against the defenuant for the sum of 34 dollars, 13 cents, costs; which judgment he avers to be in full force, and not reversed, annulled or satisfied.</p> <p>The defendant prayed oyer of the judgment declared on, the record of which comports with the declaration, as far as it was therein described. But it further appears that the plaintiff’s demand in the original action did not exceed 50 dollars, and that from the judgment rendered for the original defendant, the now plaintiff, upon a demurrer with reservation replied to a good plea, the original plaintiff, the now defendant, appealed to the Supreme Judicial Court, and entered into recognizance with sureties, as the law directs, to prosecute his appeal with effect. Upon oyer had, the defendant demurs generally to the plaintiff’s declaration, and the plaintiff joins in demurrer.</p>

<p>This was an action upon contract, and the declaration contained several counts. After the action had been entered in [ * 380 ] this Court, the plaintiff at the last term, * upon leave obtained, had filed several new counts. To these counts the defendant now moved to file a plea of the statute of limitations, in addition to his former plea. This motion was objected to by the plaintiff.</p>

<p>Lands of a resident owner in any town occupied by his tenants are taxable in the school-district in which the tenant lives ; and lands in his own occupation in the school-district in which the owner dwells; notwithstanding the discretion vested in assessors by the general tax-act.</p>

A., a deputy sheriff, having an execution against B., and having it in his power to arrest the debtor’s body, C., in consideration of A.’s forbearing to arrest B., promises in writing to deliver him to A. at a certain day and place, that he may be taken and committed in execution.

<p>Upham presented the petition of Field 8f al., stating that in December, 1807, by the consideration of this Court then sitting by adjournment at Northampton, in an action wherein the said corporation were plaintiffs, and the petitioners were defendants, the petitioners recovered judgment for their legal costs; that in the taxation of the costs, the sum of 71 dollars, 56 cents, which had accrued * for the travel and attendance of sundry [ * 390 ] witnesses, was omitted to be taxed; that this mistake was not discovered until after execution had issued on the judgment, and was satisfied; and they pray for such relief as to law and justice may appertain.</p>

The only question referred to the Court in this case was, whether John Frink was to be adjudged the trustee of Field.

<p>Practice. Where, m assumpsit, the plaintiff declares on a special agreement, a quantum meruit, and a general indebitatus assumpsit, and on trial he proves a special agreement, but different from the one declared on, he may still recover on the general count, if his evidence will support it.</p> <p>Where there was a bill of exceptions to the rejection of evidence in the Common Pleas, and upon error in this Court, the evidence was deemed admissible, a new trial was ordered at the bar of this Court</p>

<p>This was an action of debt upon a bond given by the defendants to William Caldwell, Esq., the plaintiff’s intestate, and late sheriff of the county of Worcester.</p> <p>The defendants pray oyer of the bond and of the condition, which are read to them, and the condition, after reciting that the sheriff had appointed the defendant Barton to be one of his deputies, is, that this latter should, in the months of June and December annually, render and pay to the obligee one- third part of the legal fees on all writs and executions that should come to the hands of the deputy.</p> <p>The defendants then plead in bar the statute of 1796, c. 41., com manly called the fee-bill, by which it is enacted “ that no sheriff shall demand or receive from any of his deputies more than at the rate of twenty-five per cent, on the amount of fees for travel and service; ” and they aver that one third part of all the legal fees on all writs and executions that should come to the hands of Barton, is more than at the rate of twenty-five per cent, on the amount of fees for travel and service.</p> <p>To this plea there is a general demurrer, and a joinder in demurrer.</p>

<p>Roods seized by an officer on execution, must be sold by him at the expiration of four days from the seizure, forty-eight hours, previous notice being given of the sale, and if he neglect so to do, another creditor may seize the goods on execution, and cause them to be sold for his benefit</p>

<p>Where upon a trial a material paper, not read in evidence, had been given to the jury by mistake, a new trial was granted without costs.</p>

This writ of error issued to remove the proceedings of a justice of the peace upon the complaint of a clerk of a militia company against a private for neglect of duty, and to recover a fine imposed oy statute for such neglect.

<p>The judgment, the record of which was removed by this writ of error, was rendered in the Court of Common Pleas for this county, December term, 1808, in an action commenced before a justice oí the peace, to recover the sum of nine dollars, forty-five cents, for so much money laid out and expended by Mower for the use of Wilson, and carried by appeal to the Common Pleas.</p> <p>As, by the statute of 1803, c. 154. <§> 5., no appeal lies to this Court, where the sum demanded is less than fifty dollars, the plaintiff in error filed his bill of exceptions, to the direction of the Court in a matter of law ; which being allowed was signed and sealed by the chief justice of the Common Pleas.</p>

<p>This was an action of covenant broken, brought upon a deed poll made by the defendant.</p>

<p>An administrator may sell land holden by his intestate under a lease for 999 years as personal property, without obtaining a license from the Court, as in case of selling real estate for the payment of debts.</p>

<p>Where the Sessions had received and recorded the verdict of a jury ascertaining the damages sustained by the owner of land, over which a turnpike road passed, and ordered the damages to be paid by the corporation in six months, and in default of payment, that a warrant of distress be levied on the personal property of the proprietors, the Court upon certiorari affirmed the order, as it related to the’recording of the verdict and the payment by the corporation, and quashed it, as to the issuing the warrant of distress.</p>

<p>The appellant having been duly appointed! by the judge of probate for this county, guardian of the respondent, pursuant to the provisions of the statute of 1783, c. 38, <§> 8., it having appeared to the judge that he was, by excessive drinking, &c., wasting his estate, the judge, on the application of the ward, had removed the guardian from office by virtue of the statute of 1789, c. 46., and had appointed another in his place. From these decrees the appellant appealed to this Court.</p> <p>Upon the hearing of the parties, and their evidence here, it appeared that the appellant had taken prudent care of the estate of his ward, but from a misconception of his powers, had in some cases" restrained him of his liberty, and had bound him in service to a neighbor, who exercised the trade to which the ward had been bred.</p>

<p>This was an action of trespass for an assault and false imprisonment.</p> <p>The defendants, having briefly stated the special matter ol their defence, according to the statute of 1792, c. 41., pleaded the genera] issue, which was joined.</p>

<p>A citizen having taxable property, and being able to pay the taxes assessed on him, gains a settlement in a town by dwelling there for ten years together, and half that time paying state and town taxes, although he is not assessed to county taxes.</p>

<p>At the last March term in this county, a rule was made, on the motion of Alexander Glover and others, upon the justices of the Court of Sessions for this county, calling on them to show cause why a writ of mandamus should not issue, commanding them to allow and record a verdict found by a sheriff's jury, which had been impanelled on the application of the said Glover and others, complaining of the estimate made by a committee, of the damages the applicants had sustained by the location of the Dorchester turnpike over their lands.</p>

<p>Non devisavit pleaded to a writ of formedon, is a special issue.</p> <p>That part of an indenture to lead the uses of a common recovery, which was executed by the recoverer, being .acknowledged and recorded, it was held not necessary that the part signed and sealed by the recoveree should be acknowledged and recorded.</p> <p>Where husband and wife surrender the life estate of a wife to him in remainder, by deed executed by the husband and wife, it was held sufficient that the deed was acknowledged by the husband alone, and recorded.</p>

<p>The report of referees appointed pursuant to Stat. 1786, c. 21., must be made tc the next Court of Common Pleas after it is agreed upon; and if not so made, the submission is ipso facto void.</p>

This was a special action of assumpsit brought by the plaintiff, aaming himself “ one of the Taunton and South Boston Turnpike Corporation,” and agent for the said corporation to procure subscriptions for shares in the turnpike road to be laid out and made by said corporation, and alleging a promise of the defendant to him, to take two shares, and to pay to the plaintiff or his order, on demand, all assessments that should at any time be made by said corporation for the…

<p>If a bond be conditioned for a deed of land to be delivered in a reasonable time after payment of a sum of money by the obligee to the obligor, ninety days after the payment is not a reasonable time for a tender of the deed, although it be before action brought on the bond.</p> <p>But in such case, if the deed be seasonably tendered, the penalty of the bond will be saved, though the land be encumbered by a mortgage, if the grantor be seised and the deed duly executed, with proper covenants of warranty.</p> <p>On a hearing in equity, after the penalty had been adjudged forfeited, the defendant had leave to replead, on evidence of a tender within a reasonable time, which his counsel by mistake had not pleaded.</p>

<p>A devise was to the testator’s son P. and his hens and assigns forever, of certain lands, and also a gift of personal estate, with this clause, “ and further it is my will, that if my son P. shall die, and leave no lawful heirs, what estate he shall leave, to he equally divided between my son J., and my grandson N., to them and their heirs forever: ” it was held that the devise over to J. and M was void, as inconsistent with the absolute, unqualified interest of the first devisee.</p>

This was a popular action of debt brought to recover of the defendant a penalty, not less than fifty dollars, nor greater than one hundred and seventy dollars, for * selling his [ * 506 ] own goods at public auction after sunset, he being a licensed auctioneer in the town of New Bedford in this county.

This was an action of assumpsit upon a promissory note made by the defendant, payable to one Benjamin T. Chandler or his order, and by him endorsed to the plaintiff.

<p>The declaration in this action was “ in a plea of debt, for that, whereas at the Supreme Judicial Court of this commonwealth begun and holden at Taunton, within and for the county of Bristol aforesaid, on the third Tuesday of October, in the year of our Lord eighteen hundred and three, an indictment was proffered to said Court by the grand jury of said commonwealth, for the body of said county, wherein the said Drew was charged with having taken, stolen, and carried away certain goods of the plaintiff, which indictment being then and there read to the said Drew, he, the said Drew, said that thereof he was guilty, and thereupon, among other things, it was then and there ordered and considered by said Court, that the said Drew forfeit and pay to the plaintiff the sum of forty-one dollars and forty-two cents, being with the goods restored treble the value of the goods stolen, as by the record of the same Court now remaining appears, an authenticated copy whereof is in Court to be produced ; which said order, sentence and judgment aie still in full force, and not reversed, annulled or satisfied; whereby an action hath accrued to the plaintiff to have and recover of the said Drew the aforesaid sum of forty-one dollars and forty-two cents. Yet though requested,” &c.</p>

This was a writ of certiorari, issued on the defendant’s motion, directed to the Court of Common Pleas for this county, commanding them to certify the proceedings had in that Court, upon the complaint of Lucinda Andrews against the defendant.

This case came before the Court upon a statement of facts agreed by the parties, from which it appears that Thomas Hearsey and Mary his wife, the grand-parents of the respondents, in May, 1757, purchased the lands, of which partition is demanded, of one Jacob Hearsey, to hold the same to them, their heirs and assigns.

The judgment complained of, the record of which was sent up from the Common Pleas for this county, upon the writ of error issued in this case, was rendered upon a report of referees, made under a rule acknowledged before a justice of the peace, pursuant to the statute of 1786, c. 21.

<p>The action was indebitatus assumpsit, for money had and received to the plaintiff’s use, and was tried on the general issue, [*525] pleaded and joined before the Chief Justice * at the sittings here after the last October term. A verdict was found for the defendants, agreeably to the directions of the judge, subject to the opinion of the Court on the following case agreed by the parties:</p> <p>“ The plaintiff, claiming to be a public Protestant teacher of piety, religion and morality, of a Baptist church and society within the limits of said Kingston, entitled to receive of the defendants the moneys assessed in the years 1805 and 1806, for the support of their Congregational public worship and public teacher, by their assessors, on the polls and estates of divers inhabitants of said town, who were claimed by the plaintiff to be members of the said Baptist church and society, usually attending on his instructions, and having directed the moneys so paid by them on said taxes, to be paid over to the plaintiff as their public teacher, has brought this action therefor.”</p> <p>“ In support of this claim, it was in evidence that there was, before and during said years 1805 and 1806, a Baptist church in said Kingston, formed according to the usages of Christians of the Baptist denomination, and a religious society of Baptists formed by voluntary association, but not incorporated by any act of the legislature ; — that the plaintiff was a Baptist, a member of that church, and had been previously ordained as an evangelist, according to the usages of the Baptist denomination; — that for the years afore-mentioned he had contracted with a Baptist society in Middlehorough, to preach to them half the time, and with the said Baptist church and society in Kingston, to preach to them the other half of the time ; — that he did in fact so preach those two years, in execution of said contract;— that being a single man, he was not a housekeeper, but when in Middlehorough lodged there in a private family; and when in Kingston lodged there also in a private family; — that when in each of these places respectively, he administered the ordinances of baptism and the Lord’s supper, * and performed all [*526] the parochial duties ; — that some of the persons, whose taxes were demanded by the plaintiff, were members of the said Baptist church, and attended on the instructions of the plaintiff, as their pastor and teacher ; — and that before the commencement of this action, the plaintiff had demanded the said moneys of the selectmen of said Kingston, but not of the treasurer.”</p> <p>“ The judge stopped the plaintiff from proceeding further in his evidence, it being his opinion that, from the above facts given in evidence, the plaintiff could not legally recover the assessments paid to the defendants by any of his hearers, inhabitants of Kingston; and he directed a general verdict for the defendants, that the questions of law might be settled by a full Court; and it was agreed that, if this direction was against law, the verdict should be set as'de, and a new trial granted.”</p>

<p>This action was a formedon in remainder, sued by the demand-ants to recover of the tenant an undivided fourth part of certain lands described in the writ. The parties agreed to submit the action to the judgment of the Court on a case stated.</p>

<p>A bond executed by a surely, before his name was inserted in the body of the bond, his name being afterwards inserted when he was not present, was held good against him.</p>

This was an action of debt upon a bond in the penal sum of 100 dollars.

<p>A oil! of exchange was endorsed thus, “Pay T. or order, for our use, value received, in account.” The payee had given an obligation to the drawer to pay the amount of the bill, when that should appear to have been paid, and in case of its being dishonored, it was to be exchanged for the obligation; the drawer paying the expenses of protest, &c. In an action upon the bill by the endorsee against the drawer, it was held that this evidence was properly given to the jury, and that the defendant was not liable.</p>

The declaration in this case states that one Job Cobb, at, &c., on, &c., by his promissory note in writing, for value received, promised the plaintiff to pay him, or order, * two hundred [ * 546 ] dollars in sixty days from the date with interest — and the defendant there afterwards, on the same day, by his writing, under his hand on the back of said note, for value received, promised the plaintiff to pay him the contents of said note agreeably to the tenor thereof.

<p>Where no act of incorporation can be found of a parish which had existed more than forty years, the Court admitted proof of its incorporation by reputation.</p> <p>Where a parish is by the legislature created into a town, the parish is not of course extinguished.</p> <p>Where such a town is sued for property claimed by it in right of the parish, the parish ought to defray the expenses of the defence of such suit, and may assess the amount of the expenses as a parish tax.</p> <p>An agreement between neighboring towns, not to tax in one the lands of the inhabitants of the other in their own occupation, is invalid, as against the provis ions of law regulating the assessment of taxes.</p> <p>An action of trespass vi et armis does not lie against assessors for an error in judgment in omitting to assess some taxable estate; provided they have been duly chosen and qualified, the tax legally ordered, the assessment made and the warrant is sued in due form of law, and the poll or estate of the plaintiff be legally taxable.</p>