Volume 50 — Massachusetts Reports

Assumpsit on an implied promise of the defendants, as coach proprietors and common carriers of passengers, to convey the olaintiff safely from Boston to Cambridge.

This was an action of trover, brought by the assignee of Orín D. Myrick, and was submitted to the court on the following statement of facts : On the 3d of March 1842, said Myrick, being in a state of bankruptcy, and owing over $2000, applied to a master in chancery, in this county, for the benefit of the insolvent law of 1838, c. 163. On the 16th of said March, the plaintiff was appointed, in the manner prescribed by said law, assignee of the goods and estate of said Myrick.

Writ of entry to recover three fourths of one undivided sixth pait of a parcel of land and a dwelling-house situate in Lyman Place, in Boston.

The plaintiff alleged, in a bill in equity, that Elizabeth Blanchard, by her last will, executed on the 18th of October 1817, and duly allowed and approved on the 13th of September 1824, made the following bequest: “ I give all my shares or stock in the New England Insurance Office, and Fire and Marine Insurance Office, in Boston, to my sister Mary Blanchard; that is to say, I give her the interest or dividends thereof, as they shall from time to time become due, for her to…

Assumpsit on the following note, indorsed by the defendant to the plaintiffs: “ Saint Louis, Mo. December 22 1838. Twelve months sifter date, we promise to pay to the order of Sidney Homer, negotiable and payable at the Bank of the State of Missouri, seven thousand five hundred and ninety-six xVu dollars, for value received, without defalcation, with interest at the rate of six per cent, per annum.

This was a writ of audita querela, dated January 10th 1842, in which the plaintiff averred that, on the first Tuesday of March 1839, the defendants (a corporation established by St. 1835, c. 40,) recovered judgment against the South Boston India Rubber Company, (a corporation established by St. 1835, c. 55,) for $2868-93, debts and costs, and took out execution thereon: That on the 3d of June 1840, the defendants, by their directors, in consideration that the said India…

Writ of entry dated July 28th 1842, to recover possession of a parcel of land, with a store thereon, situate in Blackstone Street, in Boston. Trial before Wilde, J. who made the following report thereof: The tenant claimed to hold the demanded premises under a lease from the demandant, dated November 30th 1841, for eleven years from the 1st of January 1842.

This was an action on a covenant of quiet enjoyment contained in the following deed: “Whereas we, Benjamin F. Emery, guardian of John Havelin, Ann Havelin and Edward Havelin, and John Dee, guardian of Elizabeth Havelin and Ellen Havelin, minor children of John Havelin, late of Boston, deceased, by order of the probate court ft r the county of Suffolk, holden on the 31st of May 1841, were licensed to make sale of the real estate of said minors, for their maintenance and…

This action, and two others brought by other plaintiffs, were commenced, in the court of common pleas, against the surviving partners of the firm of A. Richardson & Co., and property was attached to secure the demands of the respective plaintiffs.

Assumpsit to recover back the amount of taxes on the income of the plaintiff, assessed upon him by the assessors of the city of Boston, and paid by him to the city collector.

<p>A. gave a bond to B., engaging to convey to him certain real estate, on his paying A. $5000 in three years, with yearly interest, and agreeing that B. might enter upon the estate, and retain possession thereof, so long as the bond should remain in force, without, any charge for rent: B. entered and remained in possession three years, paid the first two years' interest on $5000, and then surrendered the estate to A. without paying the third year's interest. Held, that A. could not recover of B. pay for the use and occupation of the estate during the third year.</p>

Assumpsit on an alleged warranty by the defendant, upon a sale of indigo by him to the plaintiffs. The declaration also contained a count for money had and received.

Assumpsit for cordage sold and delivered. At the trial in the court of common pleas, before Warren, J. evidence was introduced tending to show the following facts: That in November 1840, the defendants, and Charles A. Brown, who has since died, were the owners of five eighths of the barque Creole: That the defendants, before the 30th of said November, authorized the said Brown, as their agent, to purchase their proportion of the outfits of said barque which was then fitting…

<p>The defendant was indicted for the murder of James Norton. His counse, at the trial, attempted to show that his offence was manslaughter. The evidence at the trial, so far as it relates to the questions of law hereinafter discussed, is stated in the opinion of the majority of the court, as given by the chief justice. After the case was committed to the jury, with instructions from the court, and they had been in consultation several hours, they sent to the court this question: ■u Were the jury instructed by the court, that the prisoner must prove provocation or mutual combat, and was not to have the benefit of any doubts on the subject ? ” To this question the court gave the following answer : “ It is hardly possible to give a direct answer, affirmative or negative, to the question of the jury, without some explanation. The rule of law is, when the fact of killing is proved to have been committed by the accused, and nothing further is shown, the presumption of law is that it is malicious, and an act of murder. It follows, therefore, that in such cases the proof of matter of excuse or extenuation lies on the accused; and this may appear, either from evidence adduced by the prosecution, or evidence offered by the defendant. But where there is any evidence tending to show excuse or extenuation, it is for the jury to draw the proper inferences of fact from the whole evidence, and decide the fact on which the excuse or extenuation depends, according to the preponderance of evidence. Where there is evidence on both sides, it is hardly possible to imagine a case in which there will not be a preponderance of proof on one side or the other. But if the case, on the evidence, should be in equilibrio, the presumption of innocence will turn the scale in favor of the accused ; that is, in a case like the present, in favor of the lesser offence. But if the evidence, in the opinion of the jury, does not leave the case equally balanced, then it is to be decided according to its preponderance.”</p> <p>The jury found the defendant guilty of murder, and his counsel moved for a new trial, on the ground that the jury were misdirected.</p>

Writ of error. The plaintiff in error and Timothy Peter- • son were tried in the court of common pleas, in the county of Middlesex, on an indictment which contained two counts.

This was an indictment, returned to the municipal court on the first Monday of May 1844, in which it was alleged that the defendant, “ on the thirtieth day of April, in the year of our Lord eighteen hundred and forty four, at said Boston, and there on divers other days and times, between the 1st day of January last and the 1st Monday of May, did presume to be and was a retailer and seller of wine, mm, brandy and other spiritous liquor, in a less quantity than twenty eight…

<p>An indictment which alleges that the defendant did u embezzle, steal, take and carry away,” certain goods, is not bad for duplicity, as charging the two offences of embezzlement and larceny: The word “ embezzle ” will be rejected as surplusage, and the • indictment be regarded as charging a larceny only.</p> <p>Evidence of embezzlement will not support an indictment for mere larceny, although the Rev. Sts. c. 126, declare that a party who embezzles money or goods shall be deemed, by so doing, to have, committed the crime of larceny. In order to warrant the admission of evidence that an indicted party has embezzled money or goods, the indictment must allege matter sufficient to apprise him that he is charged with embezzlement</p>

The plaintiff alleged, in a bill in equity, that he was executor of the last will of Eliphalet Slack, late of Seekonk, which was duly proved and allowed on the 1st of August 1826 : That said Eliphalet, by said will, after giving the use of all his property to Sarah, his wife, during her life, made the following bequest: “ I give and bequeath unto the legal heirs of my late sister Abigail, the wife of Daniel Cook, deceased, the sum of one thousand dollars: ” That the…

Tins was an action of covenant broken, commenced on the 9th of July 1844.

<p>Writ of entrt to recover a parcel of flats in Boston, situated below Sea Street and south of Summer Street.</p> <p>In a former action, brought against the demandant by the tenant, in the name of Andrew C. Valentine and others, for the use and benefit of the tenant, judgment was recovered against the present demandant for a parcel of flats adjoining those which were demanded in the present action. The demandant now claimed part of the flats described in his count, under the same title by which he attempted to defend against said former action, and a larger part thereof he claimed under a different title; it being one of his purposes, in bringing this action, to obtain a revision by the court of the decision in the former action.</p> <p>At the trial before Wilde, J. most of the evidence, on both sides, was the same, in substance, which was introduced on the trial of the former action. So much of this evidence as is necessary to an understanding of the legal questions, which were decided in the case, is stated in the opinion of the court. (See also the report of the case of Valentine v. Piper, 22 Pick. 85.)</p> <p>After all the evidence was presented, the case was taken from the jury, to be submitted to. the whole court, who, by agreement of the parties, were authorized to draw any inferences of fact which are warranted by the evidence, and to enter judgment for the demandant or for the tenant, or to send the case to a jury, as the law might require.</p> <p>The argument was had at a former term.</p>

Assumpsit on the following agreement, made between the plaintiff and defendant on the 30th of March 1842: “ Whereas the said Pollard and Houston did, on the 29th of October 1840, make and execute an agreement in writing, under seal, wherein and whereby the said Houston contracted to build a dwelling-house and out buildings for the said Pollard, and upon the land of the said Pollard, as therein is set forth and expressed: And whereas a certain hill for materials furnished and…

<p>This was an action of replevin. The writ was directed to, and served by, a coroner; the defendant being therein described as a deputy of the sheriff of the county of Suffolk. The defendant pleaded in abatement, that said sheriff was not, at the time of the service of the writ, a party to, nor interested in, the case, and that the officer who served the writ was not, at the time of the service, a sheriff, nor a deputy sheriff, and therefore was not authorized by law to serve the same. The plaintiff’s replication alleged that the sheriff of Suffolk was, at the time of the service of said writ, and still is, interested in the case, and that the coroner, who made said service, was by law authorized to make it. The defendant, in his rejoinder, denied the interest of said sheriff in the case, and tendered an issue to the country, which was joined by the plaintiff.</p> <p>At the' trial, in the court of common pleas, the plaintiff, to show the interest of the sheriff, as alleged in said replication, introduced evidence of the following facts: 1st. That the defendant, at the time of the service of said writ, and long before, and at the time of said trial, was a deputy of the sheriff of Suffolk: 2d. That said sheriff, on the 11th of April 1839, gave a bond, with sureties, to the treasurer of the Commonwealth, hi the sum of $30,000, conditioned, among other things, to “ respond and answer for the malfeasance and nonfeasance of all and each of his deputies: ” 3d. That the property replevied in this suit was attached by the "defendant, as acting deputy sheriff, as the property of John Cushman, bv virtue of a writ sued out against him by Henry Hammond.</p> <p>Upon this evidence, the court instructed the jury, that the sheriff was interested in this case, at the time of the service of the writ, and at the time of the trial; and a verdict was returned for the plaintiff, conformably to said instruction The defendant alleged exceptions.</p>

<p>The owners of a tavern, by an instrument in which they recited that they had engaged R. to keep said tavern, empowered him, for them, and in their names, and for their use • and benefit, to transact all business pertaining to said tavern, which, in his judgment, might promote their interest, and “ to purchase, use and vend all necessary provisions for said house.” Held, that R. was authorized to purchase spiritous liquors, wine and sugar, on the credit of the owners, to be used at the bar of said tavern.</p>

<p>A notice to the indorser of a note, which merely states that the note remains un paid, and that the holders look to him for payment, is not sufficient to charge the indorser, although such notice is given by a notary public.</p>

<p>A. asked B. what he would take for candles 5 B. said he would take twenty one cents per pound 5 A. said he would take one hundred boxes 5 B. said the candles were not manufactured, but he would manufacture and deliver them in the .course of the summer: No written memorandum was made of this bargain. Held, that this was a contract for the sale of goods, within the statute of frauds — Rev. Sts. c. 74, § 4.</p>

This was an action of assumpsit for goods sold and delivered, and money had and received, brought against George Field, the defendant’s intestate, and entered in the court of common pleas in his life time.

<p>The provision in the Rev. Sts. c. 36, $ 30, thatCt if any loss or deficiency of the capital stock in any bank shall arise from the official mismanagement of the directors, the stockholders at the time of such mismanagement shall, in their individual capacities, N be liable to pay the same,” does not enable the creditors of the bank to maintain a suit against the stockholders, to recover payment of their demands against the bank. And if the stockholders were liable to a suit of the creditors, under that section, it would be barred by the statute of limitations, (Rev. Sts. c. 120, $ 1,) in six years from the time of the loss or deficiency of the capital stock.</p>

<p>Assumpsit for monéy had and received. The suit was brought to recover back taxes assessed upon the plaintiffs’ real and personal estate, and paid by them to the defendants, in the four years next before the commencement of the action ; viz. $91-70, assessed in said years on personal estate, and $628-50 assessed on real estate. The parties agreed that such judgment should be entered, as the court might direct, upon the following agreed statement of facts:</p> <p>The plaintiffs are a corporation established by St. 1824, c. 26. In the years 1839, 1840, 1841 and 1842, the sum of $91-70, in the whole, was assessed, by the assessors of Boston, on the income of the plaintiffs; they having no other personal property. Said income consisted of the profits of a grist mill namely, the usual toll, payable in kind, on grain ground at their mill, situate in Boston, and of the rents of water power and real estate demised to divers lessees. The income of the plaintiffs, after paying their expenses, was divided annually among the individual stockholders.</p> <p>In the same years, $628-50, in the whole, was assessed, as aforesaid, upon real estate of the plaintiffs. By virtue of their act of incorporation, the plaintiffs are proprietors of a large water power created by the dams erected by the Boston and Roxbury Mill Corporation, (established by St. 1814, c. 39,) flowing from the full basin, so called, into the receiving or empty basin, so called; a large part of said receiving basin, and a very small part of said full basin, being situate within the limits of the city of Boston, and all the residue within the limits of the towns of Brookline and Roxbury, in the county of Norfolk. The plaintiffs are also proprietors of, and carry on, a grist mill, situate in Boston, and worked by the water power aforesaid, which was valued and taxed by the city assessors, for the four years aforesaid, upon a distinct valuation; and said last mentioned tax has been paid by the plaintiffs without objection.</p> <p>Other and extensive mills, owned by lessees of the water power, are situate, one in Boston, and the others in Roxbury, and use a great part of the water power belonging to the plaintiffs; and the proprietors of these mills are taxed therefor, respectively, in Boston and Roxbury.</p> <p>The plaintiffs, by virtue of the act incorporating the Boston and Roxbury Mill Corporation, and their own act of incorporation, and of certain indentures of compromise, made with the city of Boston and other owners of lands, have become proprietors of the fee of certain land situate within the limits of Boston, on the eastern side of the said receiving basin, and within the line thereof which is flowed. The taxes on the real estate of the plaintiffs, which are in dispute in this action, were assessed upon the land last mentioned, upon distinct valuations, separate from said grist mill and mill power. In 1839, the plaintiffs were assessed for “ their works,” houses occupied by different persons, and “ land in Ward 11; ” in 1840, for “ the works over the dam,” houses, &c. and “ Ward 11 land; ” in 1841, for “mills,” houses, and “Ward 11 lot;” and in 1842, for “grain mills,” houses, and “Ward 11 lots.” This land or lot in Ward 11, was the land above mentioned, lying in Boston, on -the eastern side of said receiving basin ; is used solely for the purpose of the flowing of water from the wheels of said grist mill, and the other mills above mentioned; and is covered with water a large portion of the time. Said land has never been laid out into lots.</p> <p>The sums sued for, paid in the years 1839, 1840 and 1841, were paid by the plaintiffs, with a denial of the right of the defendants to tax said land or said personal property, but without a formal protest. The sum paid in the year 1842 was paid after a summons was issued by the treasurer of the city, and under a formal written protest, which was filed, at the same time, with the treasurer; and repayment of said last named sum, and of all the amounts in suit, was demanded of said treasurer, at the same time.</p>

<p>A fire insurance company executed a policy insuring a three story brick building, called the Central Exchange, which was afterwards burned: A by-law of the company, attached to the policy when it issued, was in these words: “ All policies, which may issue from this company, to cover property previously insured, shall be void, unless such previous insurance be expressed in the policy at the time it issues: ” On the policy when it issued, was this memorandum: 11 Five thousand dollars insured by the Worcester Mutual Fire Insurance Company: ” The prior insurance was, in fact, #4700 on the three story brick building and a two story wooden building connected therewith, which were called the Central Exchange, and #300 on a barn near the same : Held, in a suit on the second policy, that though a compliance with the said by-law was a condition precedent to the validity of the policy, yet that the said memorandum of the prior insurance was a sufficient compli anee with the by-law, and that the defendants were liable on their policy.</p> <p>The law of marine insurance respecting salvage does not apply to a fire policy issued by a mutual fire insurance company: On such a policy, the assured is entitled to recover the amount of his insurance, when the insured building is destroyed, without deducting the value of the materials which remain.</p>

<p>This was an action of assumpsit to recover damages for a breach of a contract alleged to have been made by the defendant with the plaintiffs, as implied by law, on the facts hereinafter stated. At the trial before Hubbard, J. the evidence introduced by the parties showed, in substance, the following facts:</p> <p>On the 1st of March 1836, Messrs. T. Wiggin &• Co., of the city of London in England, bankers, by their duly authorized agent, Robert Hooper, jr., at Boston, granted to the defendant a letter of credit, of which the following is a copy: “ Boston, March 1, ■ 1836. I hereby authorize Messrs. Russell &. Co. to value on Messrs. T. Wiggin & Co., London, at six months’ sight, at Canton, for the account of Nathaniel Goddard, Esq. of Boston, for any sums not exceeding in all four thousand pounds sterling. And I hereby engage, as the authorized agent of Messrs. T. Wiggin &. Co., that the bills of Messrs. Russell & Co. shall be duly honored when presented, if drawn within twelve months from the date of this letter. Robt. Hooper, jr. Attorney to T. Wiggin & Co.”</p> <p>The defendant, at the same time, signed the contract with the said T. Wiggin & Co., of which the following is a copy. “ Boston, March 1, 1836. Mr. Robert Hooper, jr., on behalf of Messrs. T. Wiggin &. Co. of London, having at this date opened a credit on said T. Wiggin & Co. for my account, to be used in Canton by Russell & Co. to the extent of four thousand pounds sterling, in consideration thereof I hereby agree to remit to. T. Wiggin & Co., in London, sufficient funds to meet the payment of all bills which may be drawn by virtue of this credit, together with all charges on the same. I further agree with said T. Wiggin & Co. to give security here, to the satisfaction of their agent, to the amount of four thousand pounds sterling, at any time when required by them or their agent. Nathaniel Goddard.”</p> <p>On the 18th of March 1836, the said T. Wiggin & Co., by their said agent, at Boston, granted to the defendant another letter of credit for two thousand pounds sterling; and the defendant, at the same time, signed a contract with the said T. Wiggin & Co. This second letter and second contract were like the first letter and first contract, above set forth, in all oarticulars except the sum therein mentioned.</p> <p>The plaintiffs, at the dates of these letters of credit, were commission merchants, having a house of trade at Canton, in China, one of the partners whereof, then and always resided in the United States, for the purpose of attending to the business of the house, which consisted chiefly of commission business transacted in China for merchants in the United States.</p> <p>On or about the date of the last of said letters of credit, the defendant sent both of said letters to the plaintiffs at Canton, requesting them to draw bills of exchange, pursuant, to said letters, to dispose of the bills of exchange, and to invest the proceeds in merchandize for the defendant’s account, and send it to him in the United States. The plaintiffs received these instructions, at Canton, and, pursuant thereto, they drew on T. Wiggin & Co., eight bills, each for £500 sterling, on the 16th of August 1836, one bill for £500 sterling, and another for £1500 sterling, on the 6th of October 1836. These bills were all payable in six months after sight, being the usual time on which bills, drawn in China on English bankers, are made payable; and they were sold by the plaintiffs in Canton, and went through India to England (as is the usual course of bills drawn in China,) and were presented to and accepted by the drawees, in London, between the 2d of March and the 22d of April, 1837. The plaintiffs, with the proceeds of these bills, purchased the merchandize (silks and teas) which the defendant had ordered, and sent it to him in the United States, together with the regular and usual accounts of their doings in the premises; and the defendant accepted and received the said merchandize to his own-use.</p> <p>On the 3d of June 1837, while all the said bills were running towards maturity, Wiggin & Co., the acceptors, failed and stopped payment. Notice of their failure reached Boston on the 27th of said June, and on that or the next day, this notice was received by J. M. Forbes, one of the plaintiffs, then residing "m Boston. On the 29th of July 1837, Mr. Forbes, on behalf of his house, addressed the following letter to the defendant: “ Nathaniel Coddard, Esq., sir: I learn that bills drawn by Russell & Co. of Canton, on Messrs. Timo. Wiggin & Co. London, for your account, become due as follows:</p> <p>2 for £500 and 500 —1000 on the 5th September next,</p> <p>2 for 500 and 500 —1000 “ 28th “ “</p> <p>1 for 500 — 500 “ 2d October</p> <p>] for —1500 “ 17th “ 66</p> <p>4 for 500 each —2000 “ 25th “ “ in all for £6000, six thousand pounds sterling.</p> <p>“ Will you be so good as to inform me whether you have taken the necessary steps to meet these bills ? And if not, what measures you are prepared to adopt in order to protect the drawers from the consequences of their non-payment at maturity ? And oblige your obedient servant, J. M. Forbes, of the house of Russell & Co.”</p> <p>To this letter the defendant replied as follows :</p> <p>“ Boston, July 31st, 1837. J. M. Forbes, Esq. Sir : Your favor of the 29th current is before me, in which you state ” [quoting the contents of Mr. Forbes’s letter.] “ In reply, I am happy to state that I have taken such measures as appear to me sufficient to prevent any bills, drawn for my account, from going back to the drawers. Nathaniel Goddard.” Mr. Forbes, in order to prevent the said bills, and other bills drawn by the plaintiffs, from going back to the drawers at Canton, purchased bills of exchange and sent them to Baring, Brothers & Co. The plaintiffs had, at the same time, a large credit with Baring, Brothers & Co., on account of merchandize which the plaintiffs had previously consigned to them; and they accordingly requested Baring, Brothers & Co. to make use of the proceeds of said bills, sent to them as aforesaid, and of said credit on account of said merchandize, to protect the bills drawn by the plaintiffs, by paying them at maturity, for the honor of the drawers. (See the facts, as to these bills and as to the credit on the plaintiffs’ merchandize, more particularly stated in the opinion of the court, post. 230.)</p> <p>The said Forbes was obliged to pay for the said bills, sent to Baring, Brothers & Co., as aforesaid, a premium of 21 per cent, on the par of exchange; that being the current rate of exchange between this country and England, at the time when said bills were purchased and remitted; and bills drawn by said Forbes, in behalf of his said house, on Baring, Brothers & Co. against the said credit on account of the said merchandize, might have been sold by him, at the same time, for the same premium.</p> <p>All the bills drawn by the plaintiffs on account of the defendant, as aforesaid, were paid at maturity, supra protest, by Baring, Brothers & Co., for the honor of the drawers, under the arrangement made by the said Forbes, as aforesaid.</p> <p>On the 19th of October 1837, Mr. Forbes, in behalf of his said house, addressed to .the defendant the following letter: “ Boston, 19th Oct. 1837. Nathaniel Goddard, Esq. Sir : I have to inform you that Messrs. Baring, Brothers & Co. have paid, for the honor of the drawers, two bills of exchange drawn by Russell & Co., Canton, 16th Aug. 1836, on your account, upon Messrs. Timo. Wiggin & Co.</p> <p>£500 . . . £1000 00 0</p> <p>with notarial charges .... 4 14 0</p> <p>postage........ 0 9 6</p> <p>commission 1 per cent. ... 10 00</p> <p>£1015 3 6</p> <p>“Paid 6th September 1837, to meet the above amount with two months’ interest at 5 per cent, per annum........... 8 11 6</p> <p>£1023 15 0</p> <p>“I paid, on or before the 6th of August, for a 60 day bill on London, remitted per packet of 8th of August, at a premium of 21 per cent., £5505-5-3, for which sum, with interest since the 6th of August, Í will thank you to reimburse me at your earliest convenience. I remain, sir, respectfully,</p> <p>“Your obedient serv’t. J. M. Forbes, of R. & Co.’"</p> <p>To this letter the defendant made a reply on the 23d of October 1837, which contained the following passages: “ Yours of the 19th was duly received. I notice particularly •ts contents, and am very sorry it was not in my power promptly to take up the bills from Messrs. Russell & Co. of Canton. I attempted, and thought I should succeed in making an arrangement, to take up every bill that was used for my benefit; but I failed in this.” “ I must now say, I cannot be punctual, but will do every thing possible for me to do, to make payment in England, where I expect to, and am preparing to, meet the bills and discharge them as fast as possible. I am making and shall continue to make shipments of cotton, &c. for the purpose of meeting all my debts there. I hope, when I discharge all that Messrs. Baring, Brothers & Co. take up, with their commission, interest, and cost of protest, that all parties will be satisfied. I repeat, I cannot be punctual, but your debt is as safe ultimately, as if in gold in the bank. I will do every thing I can, even at a great sacrifice, to meet it as soon as possible. Yours very respectfully,</p> <p>Nathaniel Goddard.”</p> <p>On the 7th of November 1837, Mr. Forbes, in behalf of his house, addressed a letter to the defendant, as follows: “Your favor of 23d October is received. In reply, I beg to assure you that it is far from my wish, or that of my partner now here, that you should sacrifice property unnecessarily to satisfy our claim, and that, placing full reliance upon your disposition to repay us promptly, we are content to await your convenience. We think, however, the principle on which our claim was. made was a just one, viz. reimbursement for the amount' actually paid on your account here. I trust that you will view the matter in the same light, and I shall be obliged to you by your giving me some acknowledgment of the debt payable here. In addition to the amount already advised, I have received protests of £1000 on your account paid 3d October, with charges, £15-6-6, which please note. Your obedient servant, J. M. Forbes.”</p> <p>To this letter the defendant replied thus: “ Boston, November 8th, 1837. J. M. Forbes, Esq. Sir: I am happy to find you do not feel desirous that I should sacrifice property unnecessarily to meet bills drawn for my account.” “ As I before stated, I have been making arrangements to meet all bills made for my account in England, and shall do it as fast as possible, but cannot be punctual. I will do all I can. It was in England that these bills were intended to be paid. I have therefore, acted in conformity. You are ultimately perfectly safe, let the steps you take be what they may. Yours very respectfully, Nathaniel Goddard.”</p> <p>On the 21st of March 1838, Mr. Forbes, in behalf of his said house, addressed the following letter to the defendant: “ Sir: My partner, Mr. Coolidge, is on the point of embarking for London, which I hope will prove my apology for asking of you some information as to your arrangements for paying the amount which we have taken up of bills .on Messrs. Wig-gin &. Co. for your account; by giving which, you will oblige, sir, your obedient servant. J. M. Forbes, of the firm of Russell & Co.”</p> <p>The defendant’s reply was thus: “ Boston, 22d March, 1838. J. M. Forbes, Esq. Dear sir: I received your note of yesterday, inquiring what arrangements I have made for taking up the dishonored bills on Mr. Wiggin & Co. By particular request of Mr. Wiggin & Co., and in order, I suppose, to facilitate his resuming his usual business again, I have agreed to remit direct to him to pay pro rata on all I owe in England, of every description, being about £12,000. Not much, as yet, has reached him; but arrangement for considerable is on the way, and I confidently hope that the whole will be, in the course of ninety days, and sooner, if possible. Very respectfully yours, Nathaniel Goddard.”</p> <p>The result of the defendant’s arrangements was such, that through T. Wiggin & Co., he repaid to Baring, Brothers & Co., on account of the plaintiffs, the same amount of pounds sterling, as the plaintiffs had paid in London on account of the bills drawn by the plaintiffs on the defendant’s account, as aforesaid, together with interest and notarial charges of protest ; "and the bills were given up to Wiggin & Co. These payments to Baring, Brothers & Co. were made in the sums, and at the dates following: June 9th 1838 — £1276-6-3. April 21st 1838 —£1200. July 13th 1838—£3817-16 0.</p> <p>The plaintiffs, through Mr. Forbes, received notice, in Boston, of the first of these payments, on or about the 20th of July 1838, when the premium of exchange between this country and England was nine per cent. They received notice as aforesaid, of the second of these payments, on or about the 31st of May, 1838, when the premium of said exchange was 7 3-4 per cent. They received notice, as aforesaid, of the third of said payments, on or about the 5th of August 1838, when the premium of said exchange was 8 per cent. And at them several rates of exchange the plaintiffs might have drawn for those several sums, at Boston, or elsewhere in the United States.</p> <p>If the bills, drawn by the plaintiffs on account of the defendant, as aforesaid, had gone back to the drawers at Canton, where the usual rate of interest is twelve per cent., this, together with the reéxchange and damages, would have caused a loss of more than 21 per cent, on the pound sterling, reckoned at four dollars and forty four cents of the currency of the United States.</p> <p>Some other facts, not above stated, were also given in evidence, which are referred to in the opinion of the court.</p> <p>The case was, by consent, withdrawn from the jury, and submitted to the court, who were to draw all inferences oí fact, as a jury might; and the parties agreed that if the law warrants a recovery by the plaintiffs, and the evidence is sufficient as to damages, the case should be referred to an assessor to ascertain, on such principles as the court might direct, the amount of damages to be recovered, and that judgment should be entered for the plaintiffs, accordingly; otherwise, that judgment should be entered for the defendant.</p>

<p>To maintain an action of trespass for taking and carrying away chattels, the plaintiff must have actual possession, or a right to immediate possession, at the time of the taking. Hence, a bailor of chattels cannot maintain trespass against one who unlawfully takes them from the bailee, during the continuance of the bailment 3 and this rule holds in case of an attachment of the chattels, by an officer, as the property of a third person.</p> <p>A vessel may be chartered by an oral contract$ and such contract is not determined by the unlawful seizure and detention of the vessel by a stranger.</p>

<p>Trover for 15,000 bushels of salt. The parties submitted the case to the court, on the following agreed statement of facts:</p> <p>On the 4th of June 1842, Nicholson Broughton, by his deed of that date, mortgaged said salt to the plaintiff, to secure payment of a promissory note given to him by said Broughton for $3000, payable on demand with interest. The salt was then on board the barque Mary Broughton, which was then, and always before, owned by said Nicholson, and had then arrived at Boston from Cadiz, and of which the plaintiff then was and before had been master. The said note was given to the plaintiff in settlement of an account, which included, among other things, the plaintiff’s wages and commissions on the last voyage of said barque.</p> <p>The salt was shipped at Cadiz, by Alexander Burton, to be delivered at Boston, “ unto order ; freight for the said goods nothing, being owner’s property; ” and the plaintiff signed bills of lading, on the 7th of April 1842. When the aforesaid mortgage was made by Broughton, he assigned one of the bills of lading, by this indorsement thereon : “ Value received T assign and transfer the within to Knott P. Bray.</p> <p>N. Broughton.”</p> <p>Before April 1841, the defendants had transacted business with said Broughton, and had lent him.large sums of money .on various securities. In April 1841, said Broughton was building said barque, and the defendants, at his request, advanced to him $6000 on the same, according to the following agreement: “ Boston, April 22d 1841. Loaned to Nicholson Broughton on his ship now building for him by Mr. Currier 3d, at Newbury, six thousand dollars. The conditions oi this loan are as follows: A charge of two and a half per cent, commissions on $6000, and interest till paid. Payment to be made in six months; otherwise, an additional commission or 2J per cent to be charged. This loan, however, in no event, is to continue longer than six months from this date, unless we consent thereto. A commission of 2j- per cent, on such part of the ship as may be sold. A similar commission on supplies, &c. for sea, and all other disbursements in this port. A commission on the fit or charter, say 2J per cent., unless a broker is employed, when we are to charge 1£ per cent. Any investments of freight money in merchandize to be made with our consent, and shipment made to our consignment for sales, on which the usual commission of guaranty, of five per cent., to be charged. For effecting insurance, we are to charge but i per cent. When the ship is ready for sea, if we can agree with Mr. Broughton upon a price to be paid for one half, we will become purchasers, jointly with Captain Samuel Thaxter, who is to command the ship, of one half said vessel; and then the ship to be sailed on our joint risk, and to 'be engaged in the Havana and Russia trade, or employed in freighting, as may appear most for the interest of the concerned. If we cannot agree upon a price for one half the ship, then the profit or loss on sailing this vessel is to accrue to Mr. Broughton’s account. Upon payment of our advances, and settlement of our account, the ship to be conveyed to Mr. Broughton on demand. Bates & Co.</p> <p>“ Agreed to above. N. Broughton.”</p> <p>On the 10th of August 1841, the defendants made a further advance, on the same vessel, of $2271-86, which, by an indorsement upon the agreement last mentioned, was stated to be made upon the terms in that agreement contained. On the 1st of October 1841, said Broughton executed to the defendants an instrument, purporting and intended to be a bottomry bond on the same vessel, to secure the sums advanced as aforesaid. The condition of this bond was in the terms copied in the margin.*</p> <p>On the 9th of November 1841, when said vessel was about to proceed from New Bedford to Amsterdam with a cargo of oil, the defendants advanced to said Broughton $3500, on the outward freight, and he gave them a receipt for said sum. (stating therein, that the same was indorsed on the agreement aforesaid of April 22d 1841,) and an agreement that the net freight, after defraying certain expenses, should be remitted to their correspondents at Rotterdam, for the defendants’ account, they to account for it to Broughton. At the same time, this advance was indorsed, as follows, on said agreement of April 22d: “ November 9th 1841. Received on account within, as per memorandum this date, three thousand five hundred dollars. N. Broughton.”</p> <p>On the 30th of November 1841, the defendants wrote to the plaintiff the following letter: “You will have been in-</p> <p>formed by Mr. N. Broughton of our arrangement with him to receive, in Europe, the proceeds of the freight of the barque under your command, for which we are to account to Mr. Broughton in Boston. It is our understanding that you are to remit from Amsterdam, to our friends, Brothers Nottlebohm, Rotterdam, for our account, all of your outward freight money, excepting enough to pay your necessary expenses at Amsterdam. And, in the event of your going to Cadiz, you are to retain enough to purchase there a cargo of salt for this market, to our consignment. Should no other preferable employment offer for the barque, and you be induced to go to Cadiz for salt, you will be particular to give us early advice of your intention, that we may effect insurance. You will please acknowledge receipt of this letter as your instructions regarding the disposition of the outward freight money. Should you load salt at Cadiz, the same may be shipped ‘ to order,’ and the bill of lading sent to us. We remain, &c.</p> <p>Bates & Co.”</p> <p>On the 8th of December 1841, Broughton wrote his letter of instructions to the plaintiff, as master of the barque, and directed him to proceed with the outward cargo to Amsterdam, and deliver it there ; and if no freight should be offered for the United States, that would give a certain specified sum, to proceed to Cadiz for a cargo of salt, after retaining enough of the freight money to defray the necessary expenses at Amsterdam, and to purchase salt at Cadiz; and to remit the balance of said freight money to Brothers Nottlebohm, at Rotterdam, for the account of the defendants; and to advise Broughton of the plaintiff’s proceedings; and to return to Boston, touching at Marblehead, if the wind should be favorable ; the plaintiff to be allowed $80 per month, wages, and two per cent, on the amount of the freight home, valuing the freight on the salt at $2000, in lieu of perquisites. The plaintiff, in writing, at the bottom of a duplicate of these instructions, held by Broughton, agreed to comply therewith.</p> <p>On the 9th of December 1841, the plaintiff replied to the above letter of the defendants of November 30th, that he had received it, and would bear it in mind, on his arrival in Europe. On the next day (December 10th) Broughton wrote to the plaintiff stating that this reply to the defendants’ letter was not such as they desired, and requested that the receipt of that letter should be acknowledged by the plaintiff, in this form: “ Your letter of 30th November is received, and due</p> <p>note made of its contents. As directed by you, and instructed by Mr. Broughton, I will remit to Brothers Nottlebohm the amount of my outward freight, less the necessary expenses of the barque at Amsterdam, and enough to pinchase a cargo of salt, should I decide to go to Cadiz. In this case the cargo is to be consigned to order, and a bill of lading sent to you, with timely orders for instructions.” And on the 11th of December 1841, the plaintiff addressed a letter to the defendants in the precise terms above proposed by Broughton.</p> <p>The said barque sailed, on the 12th of December 1841, under the plaintiff’s command, and the outward freight, after reserving enough to defray the expenses at Amsterdam, and to purchase a cargo of salt at Cadiz, where the plaintiff decided to go, was remitted, agreeably to instructions. The plaintiff proceeded to Cadiz, and through the agency of Alexander Burton, the American consul there, purchased, with the reserved freight money, a cargo of salt. The invoice thereof, dated April 5th 1842, signed and certified by said Burton, stated that the cargo was shipped by order of the captain, Bray, and consigned to order. The bills of lading of the salt were as hereinbefore stated. One of these bills was indorsed by said Burton, and forwarded by the plaintiff to the defendants, in á letter dated April 8th 1842, saying that it was done “ as per instructions,” and was received by the defendants before the arrival of the barque. They thereupon made a contract for the sale of the salt, and Broughton, upon hearing thereof, called on them and said he would not sanction it. The other bill of lading, with the invoice, was delivered to Broughton, by the plaintiff, on the arrival of the barque, and Broughton indorsed this bill, and delivered it to the plaintiff, as before stated. These bills were dated April 7th 1842, and the barque sailed for Boston, from Cadiz, on the next day.</p> <p>Before this time, Broughton was indebted to the defendants for a loan of $6000, made on the 1st of February 1841, upon one half of his barque Chusan, and for an advance of $4000, made on the 13th of September 1841, upon one half of his barque Zotoff, secured by bonds m form like that respecting the Mary Broughton, hereinbefore described ; for an advance of $6000 on a barque then building, and on the stocks at Newbury, part of which sum, viz. $4457-09, was advanced January 11th 1842, and the residue January 27th 1842; for an advance of about $1500 on a cargo of salt at Marblehead, consigned by Broughton to the defendants; and for the aforementioned loans on the Mary Broughton, with the $3500 indorsed on the aforesaid agreement of April 22d 1841, and charged in the defendant’s account, hereinafter mentioned, as an advance “ on the Mary Broughton’s freight to Amsterdam,” and as stated in the aforesaid agreement of November 9th 1841.</p> <p>At the time of the advance of $4457-09, above mentioned, a contract, dated January 11th 1842, was made between the defendants and Broughton, stating that the barque aforesaid, on the stocks, should be held in mortgage for that sum, and for any further sums that might be advanced, not exceeding $6000.</p> <p>In March 1842, the defendants, holding the aforesaid instruments intended as bottomry bonds, and the mortgage on the said barque on the stocks, were advised by counsel that it was doubtful whether said bonds were any thing more than mortgages, and that the said cargo of salt at Marblehead, though nominally pledged to them, being in the possession of Broughton, was liable to attachment by his creditors. The defendants thereupon proposed to Broughton that he should carry into effect their original intentions, by giving them possession of the cargo of salt, (which was done,) and by executing other bottomry bonds. He acceded to this proposal, and counsel were instructed by the defendants to prepare such bonds. At this time no mention was made of any agreement as to the freight of the Mary Broughton, and no instructions were given relative thereto. While the papers were in preparation, the defendants made up their account with Broughton, to March 1st 1842, including the loans and advances aforesaid, and all their demands against him, and their liabilities on his account, commissions, liabilities on premium notes, &c. and the said sum of $3500, stated to have been an advance on the Mary Broughton’s freight; and the cash balance, in favor of the defendants, was the sum of $34,598-87. This balance was divided into four sums, for one of which, $17,000, a new bond was given on the Mary Broughton; for another of which, $8000, a new bond was given on the Chusan; and for another of which, $5000, a new bond was given on the Zotoif. [These bonds secured a marine interest of eleven per cent., &c., as stated in the opinion of the court, post. 249.J For the remaining sum of $4598-87, said Broughton gave a promissory note to the defendants, payable in one month, with interest, and also made to them a mortgage, to secure said note, of the new barque aforesaid, on the stocks, in which mortgage it was also stipulated that said barque should be held by them for any moneys that might be due on the three bottomry bonds aforesaid. At the same time another instrument was executed by said Broughton to the defendants, stating the said bottomry bonds and mortgage, and the pledge of the said salt at Marblehead, and that the new barque and the salt were of greater value than the amount lent thereon, and that the defendants had requested further security for the sums lent on bottomry, and agreeing that the new barque and the salt should be held for such sums and interest, as might be due on the aforesaid loans, and interest. The said bottomry bonds, mortgage and agreement were all executed on the 5th of March 1842; so that the whole amount of said balance of $34,598-87, was covered by these securities. When they were executed, it was said by the counsel who prepared them, in reply to a question put by said Broughton, and in presence of the defendants, that the old bottomry bonds would of course be given up, when the new ones should be delivered; but no allusion was made- to any lien on the freight of the Mary Broughton, or the proceeds of said freight. At the same time, the defendants engaged to make a further advance to said Broughton, and afterwards did advance to him the sum of $2600. They also gave to the said Broughton the following writing; “ Boston, 5th March 1842. Dear Sir: In giving us the mortgage to-day on the whole of the new vessel which you are now building at Newbury, we agree that when she shall be fully equipped for service, we will reconvey to you one fourth (¿th) share, or, if sold in that state, we will pay over to you one fourth of the money we may obtain for her.</p> <p>Bates &' Co.”</p> <p>At that time, (March 5th 1842,) and for some time after-wards, the defendants supposed that the security held by them was more than sufficient to satisfy all their demands. They afterwards sold the salt at Marblehead, and carried the proceeds thereof to Broughton’s credit on account.</p> <p>The Mary Broughton arrived at Boston on the 4th of June 1842, very early in the morning; and while she" lay in the stream, and before her arrival at the wharf, the master (the plaintiff) left her in charge of the first mate, and went to Marblehead, where Broughton resided, and returned to Boston, with him, early in the same forenoon; and Broughton, soon afterwards, on the same day, made the mortgage and assignment of the bill of lading, before mentioned, to the plaintiff.</p> <p>In the mean time, while the plaintiff was absent from the vessel, the defendants sent a person on board, after she arrived at the wharf, to take possession of her and of the cargo. In the afternoon of the same day, and after the making of the mortgage by Broughton to the plaintiff, the defendants asked the plaintiff for the invoice. He refused to deliver it up, and claimed the salt, as having been conveyed to him as aforesaid.</p> <p>After the arrival of the vessel, and before she was entered at the custom house, the defendants applied to enter the salt but the officer declined to enter it, “ because it is not in rule to enter the cargo before the vessel.” On Monday, June 6th, the officer sent for the plaintiff to enter the vessel; and when he arrived at the custom house, Thaxter, one of the defendants, was waiting there to enter the salt; and as soon as the vessel was entered, the officer took up Thaxter’s papers and proceeded to enter the salt. The plaintiff claimed to enter it, and for that purpose presented an entry, with a bill of lading consigned to order, not indorsed by Burton, but by Broughton, to him. Thaxter exhibited one indorsed by Burton, and the officer said that gave him the right- to enter it. The plaintiff remonstrated against his being permitted to do so. The entry was made by the defendants, as owners, and completed, and they gave bond to produce an invoice and pay duties. Soon afterwards, in pursuance of a permit, the defendants took the salt from the vessel, (the plaintiff being on board and objecting, and claiming it,) and disposed thereof, crediting the net proceeds to Broughton. The plaintiff remained master of the vessel, and was, from time to time, on board, until the salt was taken away by the defendants.</p> <p>When Broughton made said mortgage and said assignment of the bill of lading to the plaintiff, he was in embarrassed circumstances; and on the 11th of July 1842, he filed his petition to be declared a bankrupt, but had not been so declared when this action was commenced.</p> <p>It was agreed by the parties, that if the plaintiff, on the foregoing facts, was entitled to recover, the case should be referred to a master or auditor, to assess the damages, and that, upon acceptance of his report, judgment should be rendered for the plaintiff; otherwise, that judgment should be rendered for the defendants. It was further agreed, that all the papers referred to in the foregoing statement of facts, and not therein set forth at large, should be considered as part of the case.</p>

<p>The fifth section of the by-law of the city of Boston, passed on the 2d of March 1843, for the regulation of Faneuil Hall Market, is valid, which provides that %t no inhabitant of said city, nor any inhabitant of any town or*city, whose dwelling-house is less than twenty miles distant from said market, shall, at any time, without the permission of the clerk of said market, occupy any stand therein, with cart, wagon, sleigh, or otherwise, for the purpose of vending any articles within the limits of said market, unless he shall, before selling or offering to sell such articles, satisfy the said clerk, when requested, that all the said articles are the produce of his own farm, or of some farm not more than three miles distant from his dwelling-house.”</p> <p>It is a violation of said section, for an inhabitant of Boston to occupy a stand within the limits of the market, and there offer for sale articles which are the property of a person residing more than twenty miles from the market, as the agent of such person, and by his direction, without satisfying the clerk of the market, when requested, that the articles are the produce of such inhabitant’s own farm, or of some farm not more than three miles distant from his dwelling-house.</p> <p>A stand may be occupied, within the meaning of said section, by a person’s having a box, within the limits of the market, containing articles for sale, and offering them for sale.</p> <p>A complaint for violation of said section is sufficient, if it allege that the defendant, without satisfying the clerk, &c., occupied a stand, within the limits of the market, with a box, for the purpose of vending articles there, without alleging that the box was of such a size as to be capable of being used as a stand.</p> <p>The first section of said by-law does not require that the clerk of the market, before entering a complaint for violation of the regulations of the market, should have the direction of the mayor and aldermen to make such complaint.</p>

The indictment against the defendant alleged that he, at Boston, on the 26th of April 1844, “ with force and arms, m and upon one Grant Learned an assault did make, said Learned then and there being a police officer of the city of Boston, and then and there being in the lawful discharge of his duty as such police officer, and him then and there did beat, bruise, wound and evil treat, and did then and there obstruct, hinder and oppose said Learned, in the discharge of his…

<p>It is not a punishable offence, by the common law, to perform an operation upon a pregnant woman, with her consent, for the purpose of procuring an abortion, and thereby to effect such purpose, unless the woman be quick with child.</p>

<p>a! a party who is indicted on the Rev. Sts. c. 4, $ 6, for wilfully giving in a vote at an election, knowing himself not to be a qualified voter, admits, on his trial, that he voted at the election, it is equivalent to an admission that he voted wilfully.</p> <p>On the trial of a party indicted for wilfully giving in a vote at an election, knowing himself not to be a qualified voter, when the only question is, whether he had resided in the town where he voted six months next preceding the election, evidence that he had resided in another town until within seven months of the election does not put upon him the burden of showing that he had changed his residence, but the burden of proof to support the indictment remains on the Commonwealth.</p> <p>Evidence that a party consulted counsel as to his right to vote, and submitted to them the facts of his case, and was advised by them that he had the right, is admissible in his favor, on the trial of an indictment against him for wilfully voting, knowing himself not to be a qualified voter, but is not conclusive evidence that he did not know that he was not a qualified voter</p>

The indictment against the defendant alleged that he, at Boston, on the 23d of April 1844, “ one certain original book of accounts concerning money due, of the value of twenty dollars, one receipt, release or defeasance, containing an acquittance of money due, of the value of six dollars, and sundry bank bills, amounting together to the sum of eleven dollars, and of the value of eleven dollars, of the goods and chattels of one Alida M. Rholl, in the dwelling-house of one…

Assumpsit on the money counts only. At the trial, in the court of common pleas, before Warren, J., the plaintiff offered in evidence a promissory note, for §110) signed by the defendant, dated July 26th 1841, payable to Goodwin, Sargent & Co., or order, on demand, without interest, and indorsed by the payees. The defendant objected to the admission of the note in support of the declaration; but the objection was overruled.

<p>A bequest, for charitable uses, to an unincorporated female society m another State, composed in part of married women, is valid $ and a court of equity will appoint a trustee to receive the bequest, in trust for such charities as are administered by such society.</p>

<p>This was a bill in equity brought by Lawson Kingsbury and his wife, and their eight children, seven of whom were minors. The bill alleged that Asa Kingsbury, late of Walpole, in the county of Norfolk, father of said Lawson, died on the 12th of August 1840, leaving a last will, which was duly proved and allowed, of which the defendant was appointed executor, and accepted the trust, and which contained (among other things) the following clauses: “Item. I give and bequeath to Lawson Kingsbury, my son, ten dollars, to be paid immediately after my decease. It is further my will, that he be prudently maintained by my executor, out of my estate, during his natural life; my executor taking said Lawson’s own receipt for the same, so that he may receive it free from all control of his creditors. Item. I give and bequeath to Sophia, wife of the before named Lawson, ten dollars, to be paid immediately after my decease. Also the use and improvement of one half of the house and land where she now lives, and one half of the furniture in said house. The furniture and house to be held for her by my executor to this my will. And it is further my will, that she be maintained by my executor, out of my estate, so long as she shall remain the wife or widow of the before named Lawson; my executor taking her own receipt for the same, so that she may receive the same free from all control of her husband, or of his creditors. Item. It is also my will that the eight children, which the before named Lawson and Sophia now have, be prudently maintained by my executor, out of my estate, until they arrive at full age; and that they may-have a common school education, and be brought up to habits of industry and morality. And it is further my will, that my executor pay, out of my estate, to the children of the before named Lawson and Sophia, as follows: To the four sons ” (naming them) “ the sum of five thousand dollars each, when they become of full age; allowing them the privilege, if they may see cause, to let the. whole or a part of said sum remain in the hands of my executor, and receive interest on the same. To the four daughters ” (naming them) “ the sum of two thousand dollars each, when they become of full age, allowing each of them the privilege,” &c. (as in case of the sons.) “Item. It is my will, that the remainder of my estate, both real and personal, which I may die possessed of, should be kept as a fund, by my executor or his successors in that office, for the purpose of paying all the before named legacies, as they become due, and for supporting and maintaining the several persons, as before directed in this my will and testament. And if any thing shall remain of my estate, real or personal, after complying with all the above named provisions, and paying all my just debts, and all funeral expenses, and my executor or his successors in that office for their services,” &c., “ it is my will to give the said remaining estate to such of my before named eight grandchildren as may at such time be living, to be divided among them, in such manner that each grandson shall have double the amount which each granddaughter may receive. If any of the before named grandchildren shall be dead at the time of such division, and have issue then living, such issue shall be entitled to the part that their parents would have been entitled to if then living; to all and each of the persons who may receive the property, to them, their heirs and assigns forever.”</p> <p>The bill averred that the property, bequeathed as above, was about $80,000, and that the income thereof was sufficient (after deducting the sums to be paid to the aforesaid eight children on their coming of age) to meet all the expenses of said Lawson’s family, and all the charges to which said estate was liable, and leave a surplus, annually, to be added to the principal: That' the dwelling-house, occupied by the plaintiffs, was small, inconvenient, uncomfortable and unsuitable for the said family, and must necessarily be abandoned, if the plaintiffs remain together as a family; and that no better use could be made of their large estate, than- that of providing for them a suitable dwelling : That they had applied to the defendant, to appropriate out of the estate of said Asa, the testator, devised and bequeathed to them, as aforesaid, a sum sufficient to erect, upon the land of said testator, devised to them as aforesaid, a suitable dwelling-house and other buildings, to remain a part of said ’ estate, to be distributed according to the provisions of said will j but that the defendant, denying that he has authority so to do, declines to grant to the plaintiffs any relief in the premises.</p> <p>The prayer of the bill was, that the defendant might be authorized and ordered to appropriate, out of said estate, a sum not exceeding $10,000, for the purpose of erecting a suitable dwelling-house for the plaintiffs, and a further sum, not exceeding $2000, for the purpose of purchasing furniture for their use and accommodation.</p> <p>The defendant, in his answer, admitted most of the facts alleged in the bill, but did not admit that the income of the said testator’s estate, after deducting the legacies to be paid to said Lawson’s children when they shall come of age, would be sufficient to meet all the expenses of said family, and leave a surplus, annually, to be added to the principal. He also submitted to the court, whether it did or did not appear, from the said will, that the testator intended that said Lawson’s family should continue to occupy the house mentioned in said will, during the life of the said Sophia. He stated that he did not deem himself authorized, by said will, to make the appropriation demanded by the plaintiffs; that he believed that such an investment would not be a prudent and proper mode of providing a dwelling-house for them, and that he had therefore declined to comply with their request; but that he had offered to hire a suitable dwelling-house for their accommodation. or to allow them a sum of money sufficient to hire such house for themselves. But he declared himself ready and willing to do whatever the court should think fit in the premises, and prayed for that just protection which should be granted, by a court of equity, to a trustee acting in good faith.</p> <p>A replication was filed by the plaintiffs, and evidence was taken, which is referred to in the opinion of the court.</p>

This was an appeal from the decision of a master in chancery, disallowing a claim made by the appellant on the estate of John C. Cook, an insolvent debtor, which was assigned to the appellee, under St. 1838, c. 163. The claim was on the following note, indorsed by said Cook, and by him delivered to the appellant: “Boston, June 12, 1839. Thirty days and grace after date, I promise to pay my own order three hundred dollars, value received. Jno.

<p>This was a petition, praying that a warrant, issued by a master in chancery, against the petitioner, under the insolvent law, might be superseded.</p> <p>It appeared that the said warrant issued on the petition of Gideon L. Knapp, a creditor of said Jordan, in which it was alleged that said Jordan, on the 15th of May 1845, being insolvent, or in contemplation of insolvency, made a fraudulent conveyance, by mortgage, of all his property that was liable to attachment, to N. M. & L. L. Bradbury, preexisting creditors of said Jordan, for the purpose of giving them a preference, they having reasonable cause to believe, when accepting said preference, that he was insolvent. The said Knapp made oath that he believed tfie allegations in his said petition to be true, and the master thereupon ordered notice to be given to said Jordan, that he might appear and show cause why a warrant should not issue, &c. He appeared and filed a plea denying that there was any just ground for said petition, &c. It appeared in evidence before the master, that said Jordan, on the 14th of May 1845, permitted anote for $276-75, due from him to said Knapp, and payable on that day, and which was lodged in a bank for collection, to be protested for non-payment, and that he, on the following morning, made a mortgage of his furniture, and all his stock in trade, to N. M. & L. L. Bradbury, to secure his note to them for $1500, payable in sixty days. Other evidence was introduced by said Knapp ; but said Jordan introduced no evidence. The master issued a warrant directing the estate and effects of said Jordan to be seized; assigning the reasons stated in the margin.*</p>

<p>This was an action of assumpsit against the acceptor oí three bills of exchange. Trial in the county of Nantucket, before Shaw, C. J. whose report thereof was as follows:</p> <p>The plaintiffs gave in evidence a bill, dated September 19th 1842, drawn on the defendant by James Athearn, for $1000, payable, in five months from date, to said Athearn’s own order, and by him indorsed in blank, and accepted by the defendant : Also a similar bill payable in six months from date, similarly drawn, indorsed and accepted: Also a bill dated May 19th 1842, for $1000, payable in six months from date, drawn and accepted like the other two, and indorsed by said Athearn, and by Philip Marett, cashier ■ of the New England Bank. All the signatures to these bills were admitted.</p> <p>The defence stated was, that the first two bills were accepted by the defendant for the accommodation of Athearn, the drawer; that this was known to the plaintiffs; and that they gave time to the drawer, and .thus discharged the defendant : That, as to the third bill, the plaintiffs received it of the New England Bank, for collection; that it was collected at maturity and paid; and that the plaintiffs had no interest in it.</p> <p>To establish the defence, the defendant called James Athearn, the drawer of the bills, as a witness, who was objected to by the plaintiffs, on the ground of interest; but he was admitted as competent, subject to the opinion of the whole court. No other evidence of his interest was offered than that arising out of his relation to these bills, and his liability upon them. He testified that he had been president of the Pacific Bank, and was so in January 1843; that the first bill was drawn by him; that he had no funds in the defendant’s hands, and that it was accommodation paper; that the same was true of the second and third bills, and that they were accepted for his accommodation; that he could not tell what was done with the first and second bills, when they respectively fell due, in January or February; that he did nothing himself; that he had made provision for his liabilities, generally, to the bank, by various written transfers of property. [Notice was given to the plaintiffs to produce these transfers, but they were not produced.] The witness further testified, that some transfers were made in December 1842, and some ear.ier; that all of them were taken as collateral security for his liabilities; that he could not say what proportion the security bore to the liabilities, but that he thought, at the time, the securities were about equal to his liabilities; that in May 1843, when this suit was brought, the security exceeded the liabilities ; that he thought the plaintiffs had converted some of his property, which they held as security, into money, viz. the ship Zone and cargo, one third of the ship Atlantic and cargo, and about $10-000 of other securities : That the third bill (payable in November 1842) was not discounted by the plaintiffs, but at Boston, and was the property of the New England Bank, and came from that bank to the Pacific Bank, for collection; that he did not know whether it ever went to the credit of the New England Bank or not, but that it ought to have so gone, because it was their property when it matured; that he considered this bill as among the liabilities for which he transferred his property for security.</p> <p>The witness also testified that when the first bill (dated' September 19th 1842) became due, he thought he was not president of the bank.</p> <p>The defendant then proposed to give evidence, that notice was given to William Mitchell, the plaintiffs’ cashier, that the defendant’s acceptances were given for the accommodation of Athearn, the drawer, as proof of notice to the corporation, (the plaintiffs,) and thus to show that the acceptor (the defendant) stood in the relation of surety to the drawer, and that the arrangement of the bank (the plaintiffs) discharged the acceptor. This evidence, though objected to by the plaintiffs, was admitted, subject to the opinion of the whole court. The same witness then testified that when the third bill, belonging to the New England Bank, became due, the cashier said to him, “ I suppose this is your paper, or for you to take care of,” and that the witness said, “ it is; ” that the witness did not know what was done with the bill; that he did not know that the cashier knew that the two other bills were accommodation drafts when they were discounted, nor did he know what was done when those bills came to maturity ; that when they were discounted, they were not taken as substitutes for like drafts in the bank.</p> <p>The witness was permitted to testify (the plaintiffs objecting) that the bills were not discounted by a board of directors. He also testified that he first made transfers to the plaintiffs, to secure his liabilities to them, in August 1842; and that William Mitchell, the plaintiffs’ cashier, kept the books of the bank.</p> <p>On cross-examination, the witness was asked if he had not accepted similar bills for the defendant. This question was objected to, but it was permitted to be put. The witness answered, that he had occasionally accepted similar drafts for the defendant, but not of exactly corresponding dates and amounts, but did not know that he did so after the defendant accepted the bills now in suit; that he thought there must have been some understanding between him and the defendant, though he was not certain ; that there was no understanding or agreement that they should accept for each other ; and that he could hardly say it was their practice to do so, though it had frequently been done; that he thought he had accepted more for the defendant than the defendant had for him ; that he (the witness) procured the three bills to be discounted, one at the New England Bank, in Boston, and the</p> <p>others by the Pacific Bank, of which he was then president; that it was done, at the latter bank, with the knowledge of the cashier, and that the amount was paid to the witness, or passed to his credit; that he often passed paper in the same way, having had the principal management of the bank; that he could not say whether his conversation with Mitchell (the cashier) was on the day the bill became due, but that it was either on that day or soon after ; that the bills were for him (the witness) to take care of as indorser.</p> <p>The witness further stated, on the cross-examination, that his first transfer of property to the bank, in August 1842, was known to the cashier, but not to the directors, and that he (the witness) first knew that the directors had knowledge that the transfer had been made, about the 1st of December 1842; that the other transfer, made in December 1842, was made with the knowledge of the directors.</p> <p>Inquiry was made of the witness, by the plaintiffs’ counsel, as to the contents of the transfers; but the judge ruled, that as the plaintiffs had declined to produce the papers containing the transfers, the witness could not be interrogated by them respecting the terms on which the transfers were made.</p> <p>The witness, on reexamination by the defendant, said that the value of the Zone and cargo was $37-000, and the value of one third of the Atlantic and cargo was $6000.</p> <p>It was conceded that the amount of the bill discounted by the New England Bank was passed to the credit of that bank, in account, by the plaintiffs, soon after it came to maturity, and before this action was brought.</p> <p>Upon this state of the evidence, a verdict was taken for the plaintiffs, by consent, for the sum of $3083-51, the amount oí the three bills, with interest, subject to the opinion of the whole court; the court to draw such inferences from the evidence, so far as it is competent, as a jury ought to draw; the verdict to stand, or be reversed or reduced, and judgment thereon, according to the opinion of the whole court upon the questions of law reserved.</p> <p>The argument was had at the last March term.</p>

<p>Debt on a bond for the liberty of the jail limits. The case was submitted to the court on the following statement of facts:</p> <p>Joseph H. Newell, one of the defendants, was arrested, May 10th 1843, upon an execution which issued on a judgment recovered against him by the plaintiffs, and was committed to the jail in Boston, by W. Freeman, a deputy sheriff. On the same day, said Newell, as principal, and the other defendants, as his sureties, gave the bond on which this action is brought, conditioned as the law in such cases requires. On the 21st of July 1843, said Newell, then on the jail limits by virtue of said bond, gave due notice to N. Coolidge, keeper of said jail, of his inability to pay the debt for which he was committed, and of his desire to take the benefit of the law for the relief of poor debtors. Said Coolidge thereupon made known the same to a justice of the peace, who appointed the 28th day of said July, at 10 o’clock, A. M., and the office of said jailer, as the time and place for the examination of said Newell; and notice thereof was served by said Coolidge, on the 21st of said July, upon- the plaintiffs’ attorney of record. At the said time and place so appointed, the said Newell appeared and submitted himself to examination. The plaintiffs also appeared by their attorney, and (reserving all right of objection to said application of said Newell and the proceedings thereon, and protesting that the same were irregular) put in certain interrogatories de bene esse. Upon the examination, the justices before whom it was made were satisfied of the truth of the facts set forth in the oath prescribed by law to be taken by poor debtors, and that the said Newell was entitled to his discharge; and said oath was administered to him, and a certificate thereof was duly granted under their hands. The said Newell, relying upon the said discharge, did not surrender himself, at the expiration of ninety days from the day of his commitment, at the jail house, for the purpose of being committed to close confinement, nor did he make payment of the execution upon which he was arrested.</p>

<p>Assumpsit to recover the amount of a check drawn on the defendants, on the 2d of November 1841, by George F Cook & Co. for four thousand dollars, payable to said Cook & Co. or bearer, and on which the following words were written by the defendants’ teller : “ Good. H. B. Odióme, Teller.”</p> <p>At the trial before Wilde, J. it appeared that Cook &. Co. had no funds in the defendants’ hands, when the check was presented for payment; that Jeremy Drake, cashier of the Freemans Bank, received the check from Cook & Co., as cash, presented it to the defendants for payment, and after payment thereof was refused, caused it to be protested, and sold it to the plaintiff for $3000.</p> <p>It also appeared that Odióme, the defendants’ teller, had been in the habit of certifying that the checks drawn on the defendants by Cook & Co. were “ good,” and that such checks had been received as cash, at different banks, as well as by individuals.</p> <p>The defendants gave in evidence the 23d article of their by-laws, which is as follows: “ It shall be the duty of the teller to make all payments from the bank, including all notes or bills discounted, and to receive payment of such notes, or bills, when due; he shall account daily, and oftener if required, with the cashier, for all sums he may receive, and in case of delinquency, he shall be responsible for the amount thereof. All checks on this bank, received by the teller, shall be delivered, on the day of their receipt, to the bookkeeper, to be entered by him ; and all checks on other banks shall be presented for payment, before one o’clock, on the day he shall receive the same. And if the teller shall pay any check on this bank, the person drawing the same not having the amount thereof to his credit in the bank, he shall be charged with the amount overdrawn, provided the same was done without application to the book-keeper; but if the bookkeeper shall havé declared the check to be good, he shall be responsible for the amount overdrawn. He shall also receive all money, bills or checks, brought to the bank to be deposited, and enter the same to the credit of the person depositing them, or to the credit of such person as the depositor shall direct, he giving a list of such deposit to the teller. Also, he shall receive payment of all notes, bills, and demands, left for collection, and when the proprietors thereof shall desire it, he shall pass to their credit the amount of bills and notes discounted.” Much testimony was introduced as to the custom of tellers of banks in Boston to certify checks as good; and upon the whole testimony in the case, (which need not be here stated,) the plaintiff’s counsel requested the judge to instruct the jury as follows : “ That if they should be satisfied, from the evidence, that Odióme, from the time he became teller, and during his holding said office, certified the checks of the customers of the bank, when funds to the amount were to their credit, whenever their convenience, or that of the bank required it; and if the jury should be further satisfied that this was, in any instance, known to the bank, and not forbidden, and that, during the same period, it was the'custom of all the other tellers of banks in Boston, in like manner, to certify checks; the jury would thereupon be at liberty to infer that the power thus to certify was an original, inherent, implied power of said Odióme, as such teller, unless the existence of such power, in said Odióme, be negatived by the other evidence in the case : That the usage of the defendants, and of the other banks in Boston, to allow certificates of deposit to be certified by their, respective tellers, was evidence in support of a usage of such tellers to certify checks, or of their authority so to do: That if the jury should be satisfied, from the evidence, that it was known to the defendants that Odióme occasionally certified as good the checks of Cook & Co., and the defendants did not prohibit the same, but acquiesced therein, they would thereby become bound to pay any checks of Cook & Co., subsequently certified by said Odióme, whether made fraudulently or otherwise, as against a Iona fide holder of such checks, without notice or ground of suspicion of want of authority, or of fraud, on the part of said Odióme.”</p> <p>But the judge instructed the jury, that an original, inherent, implied power of the teller could not be so infen ed ; and he also instructed them as follows: The question is, whether the certificate of the teller, that the check was good, binds the bank. If he had any authority to bind the bank by that acceptance, the plaintiff may maintain this action. It is not contended that he had any express authority. The by-laws of the bank forbid it; and if it stood on those, there would oe no authority. And no such authority is implied from the nature, or by virtue, of the office. The case must turn upon the question, whether there is such a custom or usage as, under the circumstances, should hold the bank. Usage to issue certificates of deposit does not show such usage in case of checks. The custom, in order to bind the bank, must be a good one, and be so general as to bring home a general knowledge of it to the business community; and the jury will judge, from all the testimony, whether a general custom is proved. Whether the custom, if proved, is good, is a question of law for the court. The general question for the jury is, whether the check was certified according to any usage or authority, and whether it was received by Drake without notice or cause to suspect that Odióme had no authority. If Drake knew that it was not according to usage for a teller to certify checks, he could not have recovered of the defendants, though he intended no wrong, unless the defendants had held up Odióme as a certifying officer. And the plaintiff can stand in no better position than Drake. If there was any usage authorizing Odióme to certify checks, and this was certified according to the usage, and Drake took it in the usual course, without any circumstances to lead him to suspect any thing, then the verdict should be for the plaintiff; otherwise for the defendants.</p> <p>The jury returned a verdict for the defendants, and the plaintiff moved for a new trial; alleging, as a cause therefor, the instructions given to the jury, and the refusal of the judge to give the instructions requested by the plaintiff’s counsel. A full report of the testimony was prepared, and was presented to the court at the hearing of the motion for a new trial.</p>

<p>Several defendants, in an action for a tort, who had pleaded jointly in the common pleas, pleaded severally in this court, and filed a joint specification of defence Held, upon a nonsuit of the plaintiffs, that the defendants were entitled only to joint costs in the common pleas, but to several costs for travel and attendance in this court Held also, that an aliquot part of the cost for witnesses, court dues, &c. might be taxed for each defendant, or that those items might be otherwise so distributed that taking them together, the plaintiffs should be charged no more than if the defendants had recovered only joint costs.</p> <p>When several defendants, who are entitled to several costs, appear by one and the same attorney, the St. of 1842, c. 67, does not prohibit the taxing of the attorney's attendance for each defendant.</p> <p>Three defendants, who were sued in an action for a tort, pleaded severally: At the trial, a nonsuit was entered, subject to the opinion of the whole court: One of the defendants then died, and the whole court afterwards confirmed the nonsuit, and awarded several costs to the surviving defendants : The administrator of the deceased defendant then tiled a petition that costs might be allowed to him, as such administrator, and that a judgment might be rendered therefor: Notice of this petition was served on the original plaintiffs, and they appeared and showed cause. Held, that no right to costs vested in the deceased defendant, in his life time 5 that the suit, as to him, was abated by his death $ and that the petition could not be supported. Held also, that the respondents (the original plaintiffs) were entitled to costs on said petition, and to a judgment therefor against the administrator, de bonis propriis.</p>

<p>Assumpsit on the following instruments:</p> <p>“ Boston, July 13th 1839. Whereas Messrs. Curtis & Meiriam have, at my request, consented to sell goods to my son William Hubbard, on a credit ■ of six months ; now, in consideration thereof, and of one dollar to me paid by them, I guaranty the payment of the amount of a bill of merchandize purchased of them by said William, under date of the 10th of July instant, and of all further sums which he may owe them for goods which they may sell him as aforesaid; provided that the whole amount which he shall owe them, at any one time, shall not exceed eleven hundred dollars ; it being the understanding that I am in no event to be liable for more than that sum: And in case said William shall fad punctually to pay said Curtis & Merriam any sum which may become due to them, I am to have ninety days, after demand in writing is made on me under this guaranty, to pay the amount for which he may be so in default, with interest: And this guaranty is upon the condition that said Curtis & Merriam shall, once in every eight months from the date hereof, give me notice, in writing, of the state of said William’s account with them ; and further, that I shall not be liable for any goods which may be purchased after I shall give notice, in writing, that this guaranty is to cease. Jane Hubbard.”</p> <p>“ Boston, October 28th 1839. Whereas Messrs. Curtis &■ Merriam have, at my request, consented to sell goods to my son William Hubbard, on a credit of six months; now, in consideration thereof, and of one dollar to me paid by them, I guaranty to them the payment of nine hundred dollars, in addition to my obligation to them of eleven hundred dollars, dated July 13th 1839 ; it being the understanding that I am in no event to be liable for more than two thousand dollars in all, upon the same conditions as expressed in my obligation of July 13th 1839. Jane Hubbard.”</p> <p>After the declaration was adjudged to be bad, (6 Met. 186,) it was amended, and the case was submitted to the court on a statement of facts, with power to draw all inferences which a jury would be warranted in drawing from the evidence. This statement was as follows :</p> <p>The action was commenced on the 11th of March 1841. The plaintiffs sold and delivered to said William Hubbard, on credit of six months, sundry parcels of goods, at sundry times, as per account copied in the margin of the next page.* For the amounts of the bills of July 10th and October 30th 1839, said William’s notes were taken at the times of the sales, payable to the plaintiffs, or order, in six months from said dates, with interest after; and for the said bills receipts were given, .at foot of the bills, signed by Curtis & Merriam, as follows ; viz. for that of July 10th, “ received payment by note at six months ; ” and for that of October 30th, “ received note at six months.” These two notes have ever remained in the hands of the plaintiffs, unpaid, except so far as sundry payments, margin, have been or should be applied to reduce them. The said William directed the first three items of credit, in said account, to be indorsed on his note of July 10th, at the time of payment; but no directions were given by him as to the appropriation of the other sums paid; nor was any appropriation of them made by the plaintiffs, other than by a general credit in account. The books of the plaintiffs show that these notes were taken for the amount of said two sales ; and then, according to the mode of the plaintiffs, the “ notes ” are posted to the leger, instead of “ merchandize,” as is done in the other cases, where no notes were taken. The said William paid the plaintiffs the divers sums credited in the said account, at the times therein stated ; and on the 1st of January 1841, the plaintiffs received the further sum of $93-50, for which he is credited.</p> <p>* William Hubbard to Curtis & Merriam . . . Dr.</p> <p>1839.</p> <p>July 10. To note at six months,...........$1019-61</p> <p>Aug. 3. Merchandize, per bill, six months,....... 235-75</p> <p>Sep. 17. Merchandize, “ “ “ 71-16</p> <p>Oct. 3. Merchandize, “ “ “ 3-00</p> <p>“ 30. Note, “ “ ........ 1969-29</p> <p>“ 31. Merchandize, “ “ “ 4-75</p> <p>Nov. 22. Cash for policy of insurance,........ 8-00</p> <p>Dec. 21. do. expense of sending to Gloucester for goods wrecked there,............ 3-50</p> <p>1840.</p> <p>Junel2. Merchandize,.............. 182-82</p> <p>“ 13. Merchandize,.............. 12 49</p> <p>July 16. Merchandize,.............. 12-69</p> <p>Balance of interest to Jan. 17 1841,........ 125-79</p> <p>3654-85</p> <p>Contra, . . . Cr.</p> <p>1839.</p> <p>Oct. 3. By cash,.... .......$160-00</p> <p>“19. “ “............ 99-85</p> <p>“31. “ “............ 47-75</p> <p>1840.</p> <p>June 12. “ “............ 115-00</p> <p>July 9. “ “............ 240-00</p> <p>“10. “ “............ 189-55 852-15</p> <p>$2802-70</p> <p>Deduct goods returned, bo’t Oct. 30 1839, . . $225-04</p> <p>Less per agreement,........ 25-04</p> <p>200-00</p> <p>Add for error in casting in bill Oct. 30 1839, . 30-34</p> <p>169-66</p> <p>Balance of interest in your favor to June 171841, 7-28 176-94</p> <p>2625-76</p> <p>1841.</p> <p>Jan. 1. By cash rec’d of T. Nevins on your account, . . . 93-50</p> <p>$2532-26</p> <p>The said William Hubbard, is dead, and no administration has been taken on his estate. On the 15th of February 1840, the plaintiffs caused the following letter to be delivered to the defendant: “ Mrs. Jane Hubbard: In conformity to one of the conditions of the guaranty you gave us for goods sold to your son William, we now annex a copy of his account. Respectfully, your obedient servants, Curtis & Merriam.”</p> <p>On the same page with this letter was a copy of the first eight items of charge, and the first three items of credit, as stated in the foregoing account in the margin; the balance against said William being $3013-40.</p> <p>On the 12th of October 1840, the plaintiffs delivered to the defendant a copy of their account against said William, which was like the foregoing account in the margin, except that it omitted the words “ six months ” on a line with the charges, and also omitted the charge of $125, “ balance of interest to January 17th 1841,” and all that followed the balance therein stated, after crediting the six payments made by said William; the balance against said William being $2676-91. Accompanying this copy the defendant received this letter : “ Madam: Above, we hand you a copy of your son William’s account, in conformity to one of the conditions of your guaranty. Respectfully yours, Curtis & Merriam.”</p> <p>On the 17th of the same October, the plaintiffs delivered to the defendant another letter, as follows : “ Boston, October 17 1840. Mrs. Jane Hubbard: Your son William having failed to pay us for goods sold him on the strength of your guaranty of July 13th and October 28th, 1839, we hereby notify you that we now look to you for the payment of the same, and that the ninety days’ notice, required to be given you, commences from this date. Our account against him was sent you on the 12th instant. Respectfully, your obedient servants, Curtis & Merriam.”</p> <p>Deducting the two items of charge in the plaintiffs’ account against said William, under dates of November 22d and December 21st 1839, (for which it is admitted that the defendant is not liable,) the balance due and payable on the 17th of October 1840, from said William to the plaintiffs, on the foregoing account in the margin, without interest, and including the two bills for which notes were taken, exceeded two thousand dollars.</p> <p>Defendant to be defaulted, if she is liable to the plaintiffs, and judgment to be rendered for such sum as they are entitled to recover; otherwise, the plaintiffs to be nonsuit.</p>

<p>The firm of T. & W. were also partners in the firm of P. &; Co.: The members ol the firm of P. & Co. were incorporated by the name of the Wareham Iron Company, but gave no notice of the dissolution of their partnership, and continued to do business under the name of P. & Co., and became largely indebted to G.: Said company failed, and made an assignment of all their property to T. & W., in trust, first, to pay them, in full, all that the company owed them, and to indemnify them, in full, against all their liabilities for the company, and secondly, to appropriate the residue to the payment, pro ratá, of the other creditors of the company, who should execute the assignment 5 and this assignment was executed by most of the creditors: W. afterwards died, leaving a will in which T. was appointed one of his executors: Subsequently, G., who had not become a party to said assignment, sued T., as surviving partner of W., for the debt due from said company to G., and recovered judgment, on the ground that he had no notice, when the debt was contracted, of the dissolution of the firm of P. &, Co., oí" which T. & W. were members ■ T. paid #29,000 in satisfaction of said judgment, and presented to the judge of probate a claim against the estate of W., his testator, of one half of the sum so paid by him to G.: This claim was disputed by the widow and heirs of W. 3 on the hearing, it appeared that T., when he so paid G., had in his hands, as surviving assignee of saic company, property sufficient to pay all that the company owed T. & W., and also to indemnify him against G.'s judgment. Held, that T.'s claim could not legally be allowed 5 and that he should have charged the amount thereof to the trust fund under the assignment, although he omitted so to do, and charged it to the partnership fund, for the purpose of quieting the company's creditors, who were not preferred by the assignment, and from an apprehension that, if he did not, they might attempt, as G. had, to recover from him their full demands against the company.</p> <p>When an executor or administrator, pursuant to the Rev. Sts. c. 66, presents to the judge of probate an account between himself and the deceased, and claims a balance as a debt due to him from the deceased, which claim, being disputed, is examined and allowed by the judge, without being submitted to an arbitrator, and parties interested in the deceased's estate appeal to the supreme judicial court, the appeal opens the whole account, and the appellate court has authority, if neither party requests to have the claim submitted to a jury, to decide on the claim, and to decree that there is a balance due from the executor to the deceased’s estate.</p>

Trespass for taking and carrying away a silver watch, frial in the court of common pleas, before Williams, C. J. It appeared at the trial, that the defendant had assigned to the plaintiff, in trust for the defendant’s creditors, certain articles of property, by an instrument which contained the following clause : “ The said party of the first part ” (the defendant) “ doth, by these presents, grant, bargain, sell, convey, assign, transfer and set over, unto the said party of…

<p>Assumpsit -on a note given by the defendant to Stanton Parker, the plaintiff’s intestate, on the 26th of November 1836, for $500, payable to said Parker, or order, on demand, with interest. At the trial in the court of common pleas, before Williams, C. J. the execution and validity of the note were admitted by the defendant; and he proposed to give in evidence, by way of set-off, or payment, or accord and satisfaction, an account against the plaintiff’s intestate, in favor of the defendant and Frederick Boyden and Robert B. Coleman jointly, the balance of which against said intestate was $490-78, in December 1838; which account was duly filed To prove the correctness of said account, and the defendant’s right to apply it in set-off, he offered in evidence the deposition of said Coleman; he and Colem-in having executed releases to each other.</p> <p>Coleman deposed that he, on the 11th of December 1838, presented a bill to Parker (the plaintiff’s intestate) for $684, due to the Astor House, in the city of New York, kept by Stetson, Boyden and the deponent; that Parker then said, “ I will give you $200, to-day. I hold Mr. Stetson’s note for $500, and I intend to turn that in to you for the balance of my account: ” That the . deponent answered, “ I did not know that Mr. Stetson owed you any thing; but if that is so, all is right: ” That the deponent considered it fairly understood and agreed upon that it should be so arranged; and that he so stated to Stetson, who agreed thereto. Parker paid $200 on the same day.</p> <p>No other evidence was offered by the defendant to main • tain his defence ; and the statements made in said deposition were not controverted by the plaintiff.</p> <p>The judge instructed the jury, that the facts stated in said deposition were insufficient, in law, to entitle the defendant to a set-off, and that the plaintiff, on these facts, was entitled to a- verdict for the full amount of the said note. The jury returned a verdict for the plaintiff, according to said instructions, and the defendant alleged exceptions.</p>

<p>Assumpsit by the assignee -ff Henry Curtis, a bankrupt, to recover the balance of an account alleged to be due from the defendant.</p> <p>The facts of the case sufficiently appear in the opinion of the court.</p>

<p>This was an action of assumpsit, pending in the county of Nantucket, upon a policy of insurance, No. 574, hearing date January 29th 1842, by which the defendants caused the plaintiffs “ to be insured, lost or not lost, §10-000 on the cargo and catchings on board the ship Orbit; on a whaling voyage in the Pacific Ocean, or wherever she may cruise for or obtain whales, and until her return to Nantucket; commencing risk May 1st 1841.” The policy contained the following clause: “ It is hereby agreed that, if the insured shall have made any other insurance upon the catchings aforesaid, prior in date to this policy, the said Insurance Company shall be answerable only for so much as the amount of such prior insurance may he deficient towards fully covering the property at risk,” &c. The plaintiffs claimed for a total loss.</p> <p>The parties submitted to the court the following statement of facts: The Orbit sailed from Nantucket, for the Pacific Ocean and wherever she might cruise for whales, on the 11th of August 1839. On the morning of the 7th of June 1842, she was stranded and totally lost, on the coast of Peru, near the port oí Payta. Upon receiving intelligence of the disaster, on the 10th of November 1842, the plaintiffs sent to the agent of the defendants, at Nantucket, a communication as follows: “Nantucket, 11thmo. 10, 1842. Frederick'O. Sanford, Esq. agent of the Whaling Insurance Company at New Bedford. Having received such information as leaves no doubt of the loss of our ship Orbit, on the 7th day of 6th month, 1842, on the coast of Peru, we hereby tender to said company our abandonment of the interest in the cargo of said ship, so far as it has been insured to us by a policy issued by said company, No. 574, and claim as for a total loss.</p> <p>T. & P. Macy.”</p> <p>On the 1st of August 1839, the plaintiffs obtained insurance for $20-000 “ on the ship Orbit and cargo, outfit and catchings, half on each, from Nantucket to the Pacific Ocean and elsewhere, on a whaling voyage, to continue during her stay and cruising, and till her return to Nantucket, with liberty,” &c. by a policy issued by the Ocean Insurance Company in Boston. On the 20th of May 1842, this policy was cancelled, and the plaintiffs received a return of part of the premium ; but this was done without the knowledge of the present defendants. On the 7th of August 1839, the plaintiffs obtained insurance for $7500 on the ship Orbit, and $7500 on her outfits, for the same voyage, by a policy issued by the Suffolk Insurance Company at Boston.</p> <p>If the evidence be admissible, (which the plaintiffs deny,) it is agreed that it is the usage among underwriters and owners of whale ships, to treat a policy of insurance on outfits as covering one quarter part of the catchings, and that, by the usage, the term “outfit ” includes catchings, to the extent of one quarter of their amount; this amount of catchings replacing and standing in lieu of outfits. It is also agreed, that if the custom shall be considered, by the court, admissible in evidence, and the plaintiffs, or their counsel, shall not be reasonably satisfied of it, that question shall be submitted to a jury.</p> <p>On the 1st of May 1841, the Orbit had about 600 barrels of oil on board. After that time, and previously to the loss, she obtained 500 or 1000 more. If the parties shall not be able to agree upon the quantity on board at the time of the loss, it shall be determined by an auditor to be appointed by the court.</p> <p>When the court shall have determined the true construction and effect of the foregoing policies, the case is to be sent to an auditor, to adjust the loss according to the principles established by the court; and judgment shall be rendered accordingly.</p>

<p>Assumpsit by the indorsees against the maker of the following note : “ April 10 1842. For value received, I promise</p> <p>Erastus Clark to pay him, or his order, six hundred dollars, on demand, with interest. Aaron Brooks, Jr.”</p> <p>The defendant put on file this paper: “ In this action, the defendant claims to be allowed the sum due him from one Erastus Clark upon a judgment rendered in favor of said Brooks against said Clark, at June term of the court of common pleas, held at Worcester, within and for the county of Worcester, 1842, for the sum of $685-09, damage, and costs of suit, $7-84.” And he accordingly filed, in set-off, a copy of said judgment.</p> <p>At the trial, in the court of common pleas, before Williams, C. J. the plaintiffs introduced the deposition of Erastus Clark, the payee of the note, who deposed to the following effect: That he, (said Clark,) in 1840, bought of Seth Caldwell a farm in Barre, for which he agreed to pay $9000; that he paid $1000, and gave his note for $8000, payable by instalments; that he applied to the defendant whom he owed $70, to lend him $600, which he wished to pay to said Caldwell; that the defendant, not having money, gave the deponent the note now m suit, and the deponent gave the defendant a note for the same amount, and secured payment thereof, and of the $70 before due to the defendant, by a mortgage of the deponent’s personal property; that he offered the defendant’s said note to Caldwell, who refused to receive it as payment of $600, and shortly afterwards sued the deponent and attached the property, which he had mortgaged, as aforesaid, to the defendant, and advertised it for sale; that the defendant gave notice to Caldwell of said mortgage, before the day appointed for the said sale, but that a sale of part of said property was made, without payment of the defendant’s demand for securing which it was mortgaged; that Caldwell afterwards obtained judgment against the deponent, in the suit on which said attachment was made, and caused the residue of said attached property to be sold on execution ; that the defendant after-wards sued the deponent, and recovered judgment against him on thé $600 note, and the $70 debt, for which said mortgage was given; that the defendant afterwards told the deponent that he (the defendant) had sued Caldwell for taking the said mortgaged property, and that Caldwell had settled with him by paying the $70, and giving him an indemnity against his $600 note, now in suit; that the deponent subsequently bought of Seth Holden, who was the agent of the plaintiffs, one undivided half of the right to make and sell, in the State of Illinois, a corn-planter, a machine invented by the plaintiffs, and gave to said Holden, in payment therefor, the said note now in suit, on receiving a deed of said right; having first stated to said Holden the circumstances under which the deponent obtained the note.</p> <p>The only question raised in the case was, whether the set-off could be allowed. The judge ruled that it could not, and directed a verdict for the plaintiffs for the amount of the note. To this ruling the defendant alleged exceptions.</p>

<p>By the Rev. Sts. c. 32, the pilotage district, which includes the harbor of Boston, extends from Nahant Rock, on the north, to the highlands of Marshfield, on the south; and the words "port of Boston,” or " harbor of Boston,” as used in reference to the regulation of pilotage, include all the ports which use the several channels leading to the city of Boston, and the mouths of the rivers which empty into that harbor.</p> <p>It seems, that it is the duty of the pilots for the harbor of Boston to take charge of a vessel which is subject to the pilotage laws, as well when such vessel is bound to Weymouth, Dorchester, Cambridge, or Charlestown, as when bound to Boston; and that they are entitled to their fees, when they seasonably offer their services to such vessel, and their offer is refused.</p> <p>The eighth rule for regulating the pilotage of the harbor of Boston, prescribed by the commissioners of pilots, in 1835, was not intended to give, and does not give, the true meaning of the word "harbor,” as used in the Rev. Sts. c. 32, and as understood by those who navigate the waters of the bay.</p> <p>In a suit, by a pilot of the harbor of Boston, to recover pilotage fees of the master of a vessel which was subject to the pilotage laws, and bound to Weymouth, and to whom the plaintiff had seasonably offered to pilot the vessel through the waters of his district, and then leave the defendant to take a river pilot, it was held, that parol evidence was admissible to show that the waters of the “ harbor of Boston ” (which was the pilot’s district) extended only to the mouths of the rivers emptying into that harbor, and also to show a usage of the pilots, for the last forty years, to pilot vessels, that were to unlade at towns situated on said rivers, as far as the mouths of the rivers, and then leave them to take a river pilot.</p>

<p>Assumpsit for the balance of an account alleged to be due to the plaintiffs.</p> <p>At the trial, before the chief justice, the plaintiffs’ counsel opened the case as one of joint liability of the defendant with Elisha Hathaway, Augustus L. Richardson, Elisha Hathaway, jr., and Thomas Popkin, and stated that all except the defendant had been discharged under the insolvent laws of this Commonwealth; dividends having been paid from .their estates, which were credited to the account, leaving the balance now claimed of the defendant.</p> <p>The plaintiffs introduced depositions, from which it appeared that the abovenamed Hathaways and Richardson were partners, from the summer of 1834 to the autumn of 1837, under the firm of E. Hathaway & Co., and that their business was that of commission merchants and ship owners ; that the defendant, though not a member of the firm, was part owner of vessels with them, and was occasionally interested with them in voyages and adventures ; that Hathaway & Co. and the defendant, in 1836, were owners of the barqne Roman; that Hathaway & Co. projected a voyage for her to South America, in which they were to be interested to the amount of two thirds, and Thomas Popkin, who was supercargo, was to be interested to the amount of one third ; that the defendant became interested with Hathaway & Co. and Popkin to the amount of one fourth of Hathaway & Co’s, two thirds; that the letter of instructions, which is copied in the margin,* was given to Popkin, with the knowledge of the defendant: and that a letter of credit on the plaintiffs (referred to in said instructions) was obtained by Hathaway & Co., as follows: “Boston, March 7th 1836. Mr. Thomas Popkin, of Boston, is hereby authorized to value on Messrs. Baring, Brothers & Co., London, at sixty days’ sight, at port or ports in South America, for account of Messrs. E. Hathaway & Co., Boston, and himself, for the cost of any shipments of merchandize made for their joint account, on board the barque Roman, for Europe or the United States, for any sums not exceeding, in all, twenty thousand pounds sterling, and the bills will be duly honored, when presented at the banking house of Messrs. Baring, Brothers & Co., in London, if drawn within six months frqm this date, and if accompanied by bills of lading and invoices of such shipments, consigned to the order of Messrs. Baring, Brothers & Co. If desirable, the bills for one half of the above credits may be drawn before forwarding the invoices and bills of lading. For Baring, Brothers & Co. T. W. Ward, Atty.: ” That the following paper was attached to a copy of the foregoing letter of credit: “ Boston, March 7th 1836. Received the original of the above letter of credit for £20,000 sterling. In consideration whereof, we hereby agree with Messrs. Baring, Brothers & Co., to provide, in London, sufficient funds to meet the payment of whatever may be negotiated by virtue thereof, at the maturity of the bills, and also to give security here for the same, at any time previous thereto, if required by them or their agent. E. Hathaway & Co.”</p> <p>It was in evidence that the barque Roman sailed, soon after said instructions were given to Popkin, for her ports of destination, the Cape de Verd Islands and Montevideo, whence Popkin took her to Rio de Janeiro, where she arrived on the 13th of September 1836, after said letter of credit had expired; that he there purchased a cargo of coffee, and sailed therewith to Trieste; and that, to pay for the coffee, he drew two bills on the plaintiffs, for account of E. Hathaway & Co. and himself— one on the 13th of October 1836, for £10,000, and one nn the 21st of said October, for £7,000 — which bills were the basis of the account in suit: That E. Hathaway & Co. stopped payment on the 7th of November 1836, and on that day made an assignment of their property to Crafts, the defendant, for the use of their creditors, under St. 1836, c. 238, Ly an indenture tripartite, executed by them, of the first part, said Crafts, of the second part, and said creditors, of the third part: That, on the 22d of said November, the plaintiffs, in London, accepted the said bill of £10,000, for the joint account of E. Hathaway & Co. and Popkin: That, on the 5th of December 1836, advices were received at Boston of the purchase of said coffee, and the drawing of said bills; and the defendant thereupon directed and delivered to E. Hathaway & Co. the following letter: “ Gentlemen. Having learned from you that Mr. Thomas Popkin has concluded to load the barque Roman with coffee at Rio de Janeiro for Trieste, and as he has, in my opinion, no authority to justify him in undertaking any operation of the kind, for account of the owners of the Roman, under the instructions and credit given him by you, as ship’s agent, at the time of his leaving Boston, I hereby relinquish to yourselves, or Mr. Popkin, or whomever it may concern, all my right, title and interest, to any share in the aforesaid cargo of coffee, and shall not consider myself bound for any loss which may arise from said operation, and give up the use of my share of said vessel, from the time of entering upon the operation, until she is discharged and freed from the same at Trieste and ready for other business ; denying, fully and entirely, the authority of Mr. Pop-kin, or any other person, to interest me in the same. Eben. Crafts: ” That this disclaimer was not made known to the plaintiffs: That E. Hathaway & Co. ratified the aforesaid doings of Popkin, and wrote to the plaintiffs, under date of December 5th, urging them to protect Popkin’s bills: That Popkin went to Trieste with the cargo of coffee, for the purpose of advising and assisting in the sale thereof: That the plaintiffs, on the 9th of January 1837, accepted the bill of £7,000, supra protest, for the honor and on account of Pop-kin, the drawer, and informed Hathaway & Co. of this fact, by letter dated the 14th of said January : That the plaintiffs, on the 15th of March 1837, paid said bill, according to their acceptance, declaring (as the notary certified) that they, nevertheless, held “ the said drawer, and all others Avhom it might concern, in and by said bill, responsible, always obliged to them for reimbursement: ” That the plaintiffs, in January and April 1837, anticipated the proceeds of said coffee, by drafts on the consignees at Trieste; and that, as the proceeds ultimately fell short of those drafts, by about $21,000, the consignees redrew, for this deficiency, on the plaintiffs, who afterwards presented a claim for this amount against the insolvent estates of E. Hathaway & Co. and of Popkin, and received dividends thereon: That Crafts, the defendant, a.s assignee (as before mentioned) of E. HathaAvay & Co., paid to the plaintiffs’ agent two dividends on their said claim, one in June 1838, and one on the 20th of December 1838 : That the plaintiffs’ said claim was presented to the defendant, as said assignee, in March 1838, in the form of an account against “the owners of the barque Roman.”</p> <p>It also appeared, that in the invoices and documents, in the plaintiffs’ books, in the statement of their accounts, and m their correspondence, the names of Hathaway & Co. only were used.</p> <p>T. W. Ward, the plaintiffs’ agent, testified that when he gave the letter of credit, on the 7th of March 1836, it was stated to him by Richardson, who applied therefor, that the' defendant was ¡to be interested in the credit and in the voyage ; and that, after advices were received from Popkin that he had drawn on the plaintiffs, E. Hathaway, sen. called on the witness several times, and very strongly urged him to have the bills accepted; that the witness called at the office of Hathaway & Co., where Hathaway, sen. and Richardson stated to him, “ as a reason for the plaintiffs’ safety in accepting the bills, that Mr. Crafts was responsible for them, and was interested in the cargo.” The witness also testified that “ they gave other reasons — such as Popkin’s being also concerned. But this of Mr. Crafts’ being concerned was one of them.” This witness further testified, that he wrote to the plaintiffs, and stated the case of these bills, and that he thought the plaintiffs “ would be safe if they did accept them, inasmuch as Popkin and Crafts were both interested and responsible, and also as Crafts was assignee of Hathaway & Co., and as Crafts was also concerned in another voyage.” But E. Hathaway, jr. and A. L. Richardson testified, that they had no recollection of stating to Ward, or of having heard it stated to him, after they had knowledge of the purchase of the coffee and the drawing of the bills by Popkin, that the defendant was interested in the coffee, or liable to pay the bills. And the plaintiffs’ counsel admitted that E. Hathaway, sen. would testify, if he were present, in the same manner. Said Richardson also testified, that he said to Popkin, at or just after the time of delivering the letter of instructions to him, “do not touch coffee, unless exceedingly low,” or words to that effect.</p> <p>Popkin testified that he did not engage in the hide voyage, on account of the difficulty of procuring hides, and the high price of them ; that he considered hides as only one object of the voyage, and did what he thought best in respect to the voyage ; that the credit expired before the bills were drawn, by reason of the outward voyage being protracted ; that one cause of the protraction of the voyage. was, that he took a large number of shipwrecked passengers from Salt Island to Montevideo, for whom $6,000 passage money was received.</p> <p>The parties also introduced the correspondence between them, the letters of advice from Popkin to the plaintiffs, the invoices, and various other documents. And it was agreed to take the case from the jury, and submit it to the decision of the court, upon the evidence; the court to draw such inferences as a jury would be warranted in drawing, and to order a nonsuit, or a default and judgment for the plaintiffs for what sum should be due from the defendant.</p> <p>This case was argued in February 1844.</p>

<p>An easement cannot be extinguished or renounced by a parol agréement between the owner of the dominant and the servient tenement.</p> <p>A license, given by the owner of the dominant to the owner of the servient tenement, to obstruct an easement, is not revocable after it is executed, and may operate as an abandonment of the easement, to the extent of such license.</p> <p>The owner of a dominant tenement may make such changes in the use and condition of his estate as to renounce the easement) and this may be relied on, by the owner of the servient tenement, as an abandonment thereof: But, in order to prove such abandonment, it must be shown that the acts relied on were done voluntarily by the owner of the inheritance, who had authority to bind the estate by his grant or release, and were of so decisive and conclusive a character as to prove his intention to aban don the easement.</p> <p>A. conveyed to B., in 1799, land and a new house thereon, bounding said land northerly on the estate of D.: B.’s administrator conveyed to D. a narrow piece of B/s land adjoining the land of D., “ reserving to the house of B. the right of eaves-drops where it bounds on said lot, and also the right of forever keeping open the staircase window at the back of said house, bounding on said lot,” said window being twenty-five inches distant from the line of D.’s land, as it stood before said narrow piece was conveyed to D.: The widow of B., having a right of dower in his said estate, and being in the oc cupation thereof, afterwards gave a parol license to D. to stop up said window, and he accordingly did so i The devisees of D., in 1805, conveyed his estate to I., by deed of warranty, u subject to the reservations expressed in the deed of B.’s administrator to D., of the right of eaves-drops, where the estate late of B. bounds on the land sold by said administrator to D., and the right of forever keeping open the staircase window at the back of the house bounding on said land: ” In 1836, the estate of B. was conveyed to E.: In 1831, W., who then owned D.’s estate, partially obstructed said window 3 and it remained so obstructed for two or three years, when W. sold said estate, which was afterwards conveyed to S., who, in 1841, wholly obstructed the entrance of light and air through said window, and cut off the eaves of said house, by building up a brick wall on the line of his (S.’s) land 3 and E. brought an action against him to recover damages therefor. Held, that the easements reserved in the deed from B.’s administrator to D. were not extinguished, renounced or abandoned, by the license given by B.’s widow, and the acts ofD. & W. Held also, that the reservation in the deed from D.’s devisees to I. precluded S., who was privy in estate with I. from setting up said license. Held also, that the reservation, in the deed of B.’s administrator to D., of the right of keeping open the window, was merely a right then existing, to wit, the right to light and air coming from the space of twenty five inches between the window and the line of D.’s land as it stood before that deed was given, and. that E. was not entitled ta recover damages of S. for any obstruction of the tight and air by an erection on the original line of D.’s land.</p>

Scire facias on the recognizance hereinafter mentioned. The case was submitted to the court of common pleas, at the last June term, on the following facts agreed : On the 5th of April 1844, a justice of the peace in this county issued a warrant against Orris Leach, upon a complaint charging him with having uttered and passed as true, in the State of Connecticut, certain counterfeit bank bills, and also with having fled from said State into this county, and being a fugitive…

The defendant was indicted for a libel published in the “ New England Cataract,” a newspaper printed in Pittsfield. The indictment alleged that said libel, among other things, .contained the following defamatory words of and concerning Oliver Brown: “ However, there were a few who, according. to the old topers’ dictionary, were drunk; yea, in all conscience, drunk as a drunken man; and who, and which of you, desperadoes of the town, got them so?

Writ of entry, brought against Theodore Barrows and Henry Hinsdale, to recover two undivided sixths of a parcel of land in Hinsdale. The parties submitted the case to the decision of the court on the following facts agreed: “ The demanded premises were a part of the real estate of Selden Spencer, deceased.

<p>Assumpsit on the money counts. Property of the defendant was attached on the original writ, and he was defaulted in the court of common pleas, at the return term. Wilson,' Butler & Co., creditors of the defendant, who had attached the same property after it was attached by the plaintiff, were admitted to defend, pursuant to the Rev. Sts. c. 90, <§> 83.</p> <p>The plaintiff offered in evidence two promissory notes, payable to himself or bearer, on demand, signed by the defendant, copies of which had been filed in the case, as a bill of particulars, before the trial, but not until after said Wilson, Butler & Co. had been admitted to defend. These defending creditors objected to the admission of the notes in evidence under the money counts, “ on the ground that, as against subsequent attaching creditors, it was introducing into the declaration a new cause of action.” The court of common pleas overruled the objection, and admitted the notes in evidence. A verdict was returned for the plaintiff, and the defendant alleged exceptions.</p>

Writ of entry to recover one undivided fifth part of two parcels of land in Sheffield. At the trial before the chief justice, the title relied on by the demandants was, that Stephen Stevens, in his life time, was seized of a large tract of land in Sheffield, of which the demanded premises were parcel; that he died intestate, leaving the female demandant, the tenant, Hiram C. Stevens, William J. Stevens and Mary Sumner, his only heirs at law.

<p>Petition for a writ of certiorari. It was alleged in the petition, that Samuel Pettibone and others, on the 23d of January 1844, made a written representation to the comity commissioners, that public convenience and necessity required ar alteration in a certain town way in New Marlborough ; that said Pettibone and others, in September 1843, petitioned the selectmen of New Marlborough to lay out said alteration, and report their doings to the town ; that said selectmen reported an alteration in said town way, and that the town, at a meeting held on the 13th of November 1843, unreasonably neglected to accept said report; wherefore said Pettibone and others petitioned the county commissioners to view said alteration, and cause the same to be established as a town way : That said commissioners thereupon determined to view the premises, and hear all parties interested, and appointed the 14th day of March 1844, as the time, and the house of Seth Norton, in New Marlborough, as the place, for such hearing : That said commissioners gave notice to all parties interested, and met at the time and place aforesaid, and adjourned to the 9th day of April 1844, when they proceeded to view, and heard the parties, and further adjourned, for consideration, to the 8th day of May 1844, when they met at Pittsfield, and considered the whole matter, and adjudged and determined that the town of New Marlborough did not unreasonably refuse or delay to approve and allow the said town way, and thereupon ordered said petition to be dismissed, with costs: That afterwards, at a meeting of said commissioners, held at Lenox, on the first Tuesday of July 1844, the said petitioners (Pettibone & others) presented a petition to said commissioners, by I. Sumner, their attorney, praying leave to amend their former petition; and that the commissioners then and there received and allowed an amendment, in which it was alleged that the selectmen of New Marlborough unreasonably refused and neglected to alter the town way mentioned in said first petition, although thereto requested in writing by said petitioners and other inhabitants of said town, within one year from said first Tuesday of July; and praying the commissioners to cause said town way to be altered, to ascertain the place and course of the way, and to estimate damages : That the commissioners, upon said amended petition, determinen to view the premises and to hear all parties interested, and appointed the 29th day of August 1844, as the time, and the house of Seth Norton, in New Marlborough, as the place of meeting for such view and hearing, and ordered thirty days’ notice of said time and place of hearing to be duly given : That the commissioners met. pursuant to said appointment, and after hearing objections, from said town, against their proceeding, they viewed the premises and heard the parties, and adjudged and determined that the selectmen of New Marlborough had unreasonably neglected and refused to lay out and alter the town way within the termini set forth in the petition, and that common convenience and necessity required that the same be laid out and established as a town way: That the commissioners, on the 8th of October 1844, laid out and established the said town way, as prayed for, and ordered said town to make said road, at its own expense, by the 1st of May 1846 ; and also ordered and adjudged that said town should pay all damages to the owners of the land over which said way should pass, amounting to $243-37, and also all the costs of prosecuting, as well on the original as on the amended petition, amounting to $134-20. Wherefore the present petitioners prayed that the record of the said proceedings of the commissioners might be brought before the court and be quashed.</p> <p>A certified copy of the record and minutes of the proceedings of the commissioners, which accompanied the petition, showed that the allegations in the petition were truly made ; and that, at the commissioners’ meeting in July 1844, it was ordered that the report made at Pittsfield “ be not accepted,” and that said Pettibone and others “ have leave to amend their petition, as on file.” It also showed that the-’second notice to the town was served by publishing, &c. an attested copy of the amended petition only; that the town appeared, pursuant to said notice, by their agent and attorney, who objected to any further proceedings being had by the commissioners, on the ground that the town had no legal notice of the original petition, but only of the amendment thereof, and that no recognizance for the payment of costs was taken on the amended petition; and that these objections were overruled by the commissioners: That the petition of Pettibone and others to the selectmen was thus : “ Feeling that the public convenience requires an alteration in the road leading from Newton Kasson’s to Calvin Ward’s, commencing near the foot of the hill east of James T. Rhoades’s, and running near the river, until it intersects the old road; we ask you to view and survey the said premises, and call a town meeting, as soon as may be, and lay it before them: ” That the selectmen made and signed what they termed a “ survey of a highway near James T. Rhoades’s, beginning at a stake and stones standing south 78| degrees west of the chimney of Newton Kasson’s dwelling-house, and south 51 degrees west of the chimney of Mr. Utley’s dwelling-house; thence south 401 degrees west, seven rods and three links, to a stake and stones ; thence ” (by .numerous courses and distances) “ to the travelled road near Calvin Ward’s dwelling-house: ” That said survey was filed with the town clerk, seven days before the town meeting which was called to act thereon : That the selectmen, in the morning of the day of said meeting, assessed damages to each owner of the land included in said survey, and reported them verbally at said meeting, without signing any paper concerning said assessment; and that no written report of the laying out or alteration of said way was made by the selectmen.</p>

<p>Assumpsit on the following note: “ Lee, October 9th 1841. Ninety days after date, for value received, I promise to pay to the order of John Baker five hundred dollars, at the Kinder-hook Bank. George Wilson.” The note was indorsed in blank by said Baker and by M. D. Field. The plaintiff described himself as “president of the Kinderhook Bank.” The defendant pleaded the general issue, and relied on a discharge under the United States bankrupt act of 1841.</p> <p>At the trial in the court of common pleas, before Washburn, J. the defendant objected to the maintenance of this action in the plaintiff’s name, because the note declared on was the property of the Kinderhook Bank; and the plaintiff thereupon admitted that the note was discounted by said bank for the defendant, and that it was ever afterwards, and at the commencement of this action, the property of said bank. The defendant admitted that the note was brought into this county, by the cashier of said bank, and delivered to an attorney with directions to sue it in the name of the plaintiff, as president of the bank; and that the action was commenced, and had been carried on, under this authority and direction.</p> <p>The plaintiff produced a statute of New York, passed in 1838, which provides, among other things, that “all suits, actions arid proceedings, brought or prosecuted by or in behalf of such association,” (free bank,) “maybe brought or prosecuted in the name of the president thereof.” And it w admitted that the Kinderhook Bank was organized and wen. into operation under this statute, and that the plaintiff was president of that bank.</p> <p>The judge, being of opinion that if said statute did not authorize the commencement of the action, in this State, in the name of the president, yet that the evidence showed that he was so far the holder of the note as to authorize him to bring the action, overruled the objection.</p> <p>The defendant then gave in evidence a certificate of discharge under the United States bankrupt act. Thereupon the plaintiff (having previously given the defendant notice) offered to impeach said discharge, on the ground of a wilful concealment of property, and a fraudulent preference of certain creditors. The defendant objected to the admission of this evidence, and denied its competency, because, in a hearing before the district court of the United States, upon objections there made, by certain creditors of the defendant, to the granting of said discharge, an issue, involving the same questions now offered to be tried, was framed and tried by a jury, and a verdict was thereupon found for the defendant; and the defendant produced in evidence a copy of the record of said proceedings in the district court, and also of the notice of the pendency of said proceedings, published by order of said court. But it was admitted, that neither the present plaintiff, nor any holder of the note in suit, ever proved any debt against the defendant, in bankruptcy, or had any notice of the issue and trial aforesaid, except the constructive notice arising from the publication of the same, as aforesaid, and the facts, that the plaintiff’s attorney in this action was of counsel for the creditors who opposed said discharge, and that the present action was pending at the time of the said hearing before the district court. The judge overruled the objection, and admitted the evidence.</p> <p>The evidence showed that the defendant, before his bankruptcy, was a manufacturer of paper and had a grocery store m Lee ; that between the 12th of March 1842 and the time when he made his application in bankruptcy, viz. August 17th 1842, he paid certain debts. The evidence also tended to show that the defendant was actually insolvent on said 12th of March; that he then stopped his accustomed business, and went into the employment of one Sturgis, who became a receiptor for the property attached in this suit, and afterwards undertook to carry on the paper mill which was before occupied by the defendant, and hired the defendant to superintend it.</p> <p>The judge instructed the jury, that “ if the defendant, knowing his own actual insolvency, and believing that he could not proceed in business, did, in view of that state of things, and for the purpose of giving preference to one or more creditors and preventing an equal distribution of his estate among his creditors, convey or transfer any estate to such preferred creditors, it was a fraud upon the bankrupt act and avoids his discharge ; that it was not necessary that there should have been an intention then formed, or existing at the time of making such preference, to avail himself of the benefits of said act; and that he need not have been guilty of moral turpitude, in order to constitute such preference a fraud under said act.”</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions to the judge’s rulings and instructions.</p>

<p>A., by a writ of replevin against B., obtained possession of B/s property, and sold it to C.; A/s replevin suit was abated by his death, and no judgment was rendered therein : B. afterwards demanded the property of C., and, on C.?s refusal to give it up, replevied it. Held, that C. acquired no title to the property, by purchasing it of A., and ♦hat B. might well maintain an action of replevin against him.</p>

<p>Under the Rev. Sts. c. 98, when charges of fraud are alleged against a party who seeks to take the poor debtors' oath, and the examining magistrates render a judgment in his favor, it is their duty to administer the oath to him, and to make a certificate thereof to the jailer, although the creditor appeals from their judgment 5 and the debtor is thereupon to be discharged from imprisonment, or, if he is at large on bail when the oath is taken, his bail are thereby discharged.</p>

Assumpsit for goods sold and delivered, work done and materials found, and money had and received.

This was a bill in equity, in which the plaintiff alleged that, on the 24th of May 1845, Franklin O. Sayles, a master in chancery, on the petition of Daniel T. Buck, a creditor of the plaintiff, issued a warrant against the plaintiff, commanding the sheriff of Berkshire, or either of his deputies, to take possession of the property of the plaintiff, and to keep it safely, until an assignee or assignees thereof should be appointed, according to the provisions of the insolvent…

<p>V orally requested B. to erect a mill dam, and orally promised him that if the dam should flow his land, he would not claim damages for the flowing: B. built a dam and mill, and flowed A.’s land, and afterwards conveyed the dam and mill to C., who continued to flow the land: A. entered a complaint against C. to recover damages for this flowing, and it was decided that he had waived his right to damages, by his agreement with B., and could not recover: A. afterwards conveyed his land to D., with a covenant that it was free from all incumbrances, and JD. brought an action against him for breach of this covenant, alleging the right of C. to flow the land without payment of damages. Held, that C. had no such right, as against by virtue of A.’s oral agreement with B., and that no breach of the covenant was shown.</p>

This was a bill in equity, brought by the assignees of Levi Dickman, an insolvent debtor, in which they averred that said Levi, on the 7th of March 1844, within six months next before the institution of proceedings in insolvency against him, made to the defendant a mortgage of certain real estate in Hatfield, to secure payment to him of a preexisting debt. The allegations, &c. in the bill sufficiently appear in the opinion of the court.

<p>A vendor of personal property, though he gives a bill of sale thereof, is a competent witness to prove that he had no title thereto; and though he sells with warranty of title, he is a competent witness, for this purpose, when called by a third person, who claims the property and brings an action of trover therefor against the vendee.</p> <p>A party’s admissions of particular facts are receivable in evidence against him, though they were made while he was negotiating for a compromise.</p> <p>In the trial of an action of trover, evidence was received that the defendant, while negotiating with the plaintiff for a compromise of the suit, admitted that he had sold the property in question, and that the plaintiff had demanded it of him, and that the plain tiff then said to him, “ I suppose you would do better by me than you offered yester day.” jHeld, that these admissions of the defendant were properly received, and that though the words spoken by the plaintiff, if they had been unconnected with the other conversation of the parties, would have been inadmissible, yet that they were not, when taken in connexion with that other conversation, so objectionable as to require that the verdict for the plaintiff should be set aside.</p>

<p>Under the Rev. Sts. c. 73, $ 23, which require an officer, in the return of his doings in the levy of an execution on land, to set forth the time when the premises were taken on execution, his return is sufficient, if it state the day of the taking, without mention of the hour and minute 3 and it is also sufficient, if it set forth acts which constitute a taking, without expressly averring it</p> <p>An officer, under date of September 25th, made a return on an execution, stating that he, pursuant to said execution, had caused three discreet and disinterested freehold ers of the county to be sworn, as appeared in the magistrate’s certificate, and that they afterwards viewed the land described in their certificate of appraisement, and that he extended the execution on said land, and delivered seizin and possession thereof to the execution creditor: He also made the certificates of the magistrate and of the appraisers a part of his return: The certificate of the magistrate was, that the appraisers were sworn before him on the 16th of October: The certificate of the appraisers was dated September 25th# and stated that they, having been first sworn, viewed the land and appraised it. Held, that it sufficiently appeared from the return, 1st, that the appraisers were sworn before they viewed and appraised the land, and 2d, that the officer took the land, on the execution, on the 25th of September 3 and that the levy was valid.</p>

<p>In a suit by the payee against the maker of a promissory note, if the defendant relies v the statute of limitations, and the plaintiff relies on a payment by the defendant within six years, the plaintiff may introduce parol evidence of a receipt given by him to the defendant for money paid on the note, although it appears that the defendant returned the receipt to him upon his indorsing the amount thereof upon the note.</p> <p>An oral admission by a defendant that he has made a payment on the demand in suit, within six years next before the suit was commenced, is competent evidence to take the case out of the statute of limitations — Rev. Sts. c. 120, $ 17.</p>

<p>An agreement between A. and B., that B. shall prosecute and manage A/s suit at law, as A/s agent, and that he shall receive, for his services, a certain per cent, on the amount that shall be recovered, and that, if he does not recover, A. shall pay him no more than his actual expenses, amounts to champerty, and is so far illegal and void, that B after obtaining judgment for A, cannot maintain an action on the agreement.</p>

<p>Assumpsit on the Rev. Sts. c. 46, <§> 18, to recov r the expense necessarily incurred by the plaintiff for the relief of Eliab Washburn and his wife, paupers, for eighteen months, viz. from April 8th 1841 till the commencement of this action, after notice and request made to the overseers of the poor of the town of Colerain to provide for them.</p> <p>At the trial in the court of common pleas, before Cushing, J. it appeared that said Washburn and wife received assistance, as paupers, from the defendants in 1838, and were ever after poor and in need of assistance; that in 1839, their support for that year was set up at auction, by a vote of the town, and bid off by Daniel Donelson ; that in April 1840, their support was set up at auction, by a vote of the town, and bid off by the plaintiff at three dollars a week; and that the town then voted that the plaintiff “ should have them to support that year.”</p> <p>It further appeared that the plaintiff, in April 1840, contracted with John Eddy of Guilford in Vermont, son in law of said Washburn, to support said Washburn and wife, for one year, and that said Eddy supported them accordingly, at his house in said Guilford, a town adjoining Colerain, and that the plaintiff was paid by the defendants for said support, at the rate of three dollars a week; that the plaintiff, in April 1841, told said Eddy to keep said Washburn and wife till they should be called for, and he would pay the charges; that said Eddy did support them at said Guilford until the commencement of this action, at the plaintiff’s charge, and that they had never been in Colerain since April 1840.</p> <p>It further appeared that, at the April town meeting in 1841, it was voted “ that the support of the paupers over twelve years of age be set up singly; that Washburn and wife be left to the overseers to provide for: ” That the town then voted to set up all the paupers together, except the children, “ the contractor to be at no expense for paupers out of town, until removed into town, except Washburn and wife: ” That the support of the paupers was then bid off by Walter Bell, jr. at $500; and that the town then voted “ that Walter Bell, jr. have the paupers, collectively, to support for the year ensuing.”</p> <p>It further appeared that the plaintiff, early in April 1841, gave notice to the overseers of the poor of the town of Colerain that Washburn and wife were on his hands, and at expense, and that he wished the overseers to provide for them; that the overseers thereupon told the plaintiff that they had nothing tn do about the matter; that the town had acted for itself, and disposed of the paupers, in open town meeting, to Walter Bell, jr.; and they referred the plaintiff to said Bell.</p> <p>The judge instructed the jury (among many other things not here drawn into question) “ that if they should be satisfied that these paupers had been supported by the town of Cole-rain sometime previously to the 8th of April 1841, they being, at the same time, at Guilford, in the State of Vermont, with the knowledge and consent of the overseers of the poor of the town of Colerain, these paupers might be considered as constructively, if not actually, in the town of Colerain ; and that it was the duty of the overseers of the poor of Colerain, on being notified by the plaintiff of the condition of these paupers, and being requested by him to furnish relief, then to afford such relief.”</p> <p>A verdict was found for the plaintiff, and the defendants alleged exceptions.</p>

<p>When a collector of taxes is removed from office, he and his sureties are liable, on his official bond, for such part of the taxes committed to him as are lost by reason of his remissnéss, although the uncollected taxes have been committed to his successor, who has also given bond for the faithful discharge of the duties of his office.</p> <p>When the same person is collector of taxes for two successive years, and pays to the town the arrears of taxes collected on the tax list of the first year, with the money collected on the tax list of the second year—the town not knowing whence the money came —and fails to perform the condition of his official bond for the second year, his sureties on that bond, when sued for his default, are liable to the extent of the default, and are not entitled to deduct the amount so paid by him for the taxes of the first year.</p> <p>When a collector is removed from office within a year after the taxes are committed to him to collect, his sureties, if sued on his official bond, may give evidence, for the purpose of reducing damages, that the uncollected taxes of certain persons on his tax list could not be collected, by reason of their inability to pay. Aliier, if the collector was not removed until after a year from the time when the taxes were committed to him.</p>

<p>This was an action of trover, commenced before a justice of the peace, by the administrator of the estate of James White. The declaration alleged that the plaintiff, in his said capacity of administrator, on the 21st of February 1844, was possessed of two tons of hay, and that, on the same day, the defendant, knowing said hay to be the property of the plaintiff, converted it to his own use. The justice rendered judgment for the plaintiff, and the defendant appealed to the court of common pleas. At the trial, in that court, the defendant justified the seizure and sale of the hay, as collector of taxes of the town of Colerain, for the non-payment of a tax assessed upon said James White, for the year 1841. It was admitted that said White’s tax for that year was $11-71, and that he paid $4 thereof to the former collector. The only fact in dispute was, whether he paid the whole tax to that collector. The jury found that he did. The other facts in the case were then agreed on, as follows:</p> <p>The hay in question grew on the farm of said White, who died on the 1st of June 1843. The plaintiff was appointed administrator of said White’s estate on the 22d of August 1843. Said hay was cut and made in July and August 1843, by a son of said White, who had a family and farm of his own, by a verbal contract between him and said White, made in the winter or spring preceding. This son took 40 acres of his father’s farm, and no more, to the halves; and another person took another part of the mowing, on the same terms Said hay was deposited in the barn of the deceased, and was inventoried and appraised as a part of his property; the plaintiff and three of said White’s eleven heirs being present at the time of the appraisement. The hay was afterwards divided between said son and the plaintiff, according to the aforesaid verbal contract; and that part of it which was not set off to the son was seized and sold by the defendant.</p> <p>On the 16th of May 1842, James M. Shearer, collector of taxes for the municipal year 1841, was removed from office, and the defendant appointed in his place by the assessors, who committed to him the tax list, which had been committed to the former collector, with a warrant directing the defendant to collect all the unpaid taxes on said list. The reasons assigned by the assessors for the removal of said James M. Shearer were his remissness and negligence, and his inability or unwillingness to account for taxes collected by him, to the amount of $925. (See Rev. Sts. c. 8, § 40.) In said tax list, thus committed to the defendant, the mm of $4 was credited as having been paid by said James White ; but it was apparent that the book had been altered. The defendant called on said White for payment of the balance, and was then told by him that he had paid the tax in full. In default of payment of the balance, the defendant, on the 21st of February 1844, took and sold the hay in question, on his said warrant.</p> <p>On these facts, (and others which were ultimately deemed immaterial,) the case was submitted to the decision of the court of common pleas; and from the judgment of that court an appeal was taken.</p>

This was an action of trespass upon the case, brought by the assignee of James Jones, 2d, an insolvent debtor, against a deputy sheriff, for said deputy’s neglect to serve an execution in favor of said James.

<p>When two persons jointly, or jointly and severally, sign an obligation for the payment ot money, one of them may show, by evidence aliunde, that he was surety for the other.</p> <p>In an action of debt on judgment, brought against a survivingjudgment debtor, who signed the obligation on which the judgment was rendered, jointly or jointly and severally with the other judgment debtor, he may show, by evidence aliunde, that he signed that obligation as surety for the other debtor.</p> <p>If a creditor'informs a surety that the debt is paid by the principal, and the surety after-wards relinquishes security which was given to him by the principal, this is a good defence to an action brought by the creditor against the surety, though the creditor did not intend to deceive or mislead him.</p>

Indebitatus assumpsit for money had and received. At the trial in the court of common pleas, before Cushing, 3. it appeared that Sidney S. Workman duly assigned his prop erty to the defendant and Thomas Shearer, under St. 1836, c. 238, for the benefit of his creditors; that the defendant became party to said assignment, as assignee, and assumed the trust, and that the plaintiff became party thereto, as creditor ; that there were assets of the said Sidney S., in the hands of…

Assumpsit for goods sold and delivered, and on the money counts. Writ dated March 2d 1843. At. the trial in the court of common pleas, before Williams, C. J. the plaintiff gave in evidence a promissory note for $44, given to him by the defendants on the 12th of April 1838. The defence was infancy ; and the defendants introduced evidence tending to prove that one of them was born February 9th 1818, and the other August 11th 1819.

<p>, Assumpsit for work done by the plaintiff and his servants, in 1843, upon the highways in Wendell. The action was commenced before a justice of the peace, who rendered judgment for the defendants ; whereupon the plaintiff appealed to the court of common pleas. At the trial in that court, before Cushing, J. it appeared that the plaintiff was duly chosen and sworn as surveyor of highways in Wendell, for district No. 6, for the year commencing in April 1842. The plaintiff produced, from the hands of the selectmen of Wendell, the highway rate bill, which was committed to him as such surveyor and which he had returned to said selectmen after his term of office had expired. For the purpose of showing that the sums, assessed upon the persons whose names were home on said rate bill, were worked out before the 15th of February 1843, the plaintiff introduced a witness, who testified that he saw and examined said rate bill, on that day, and that it then bore the same marks and crosses which appeared on it when brought into court, and that all the names thereon were then crossed out. This witness (who had been a surveyor of highways) and others testified that the general custom in Wendell was, for the surveyors to make return of their highway rate bills thus crossed, without any further return or indorsement thereon ; that the crosses against the sums assessed indicated payment, and were so understood ,■ and that the officers of the town had settled with the surveyors upon such returns of highway rate bills. Another witness, introduced by the plaintiff, testified that, in the spring of 1843, the plaintiff returned to one of the selectmen of Wendell an account, in writing, of his over-work, and demanded payment therefor, and that said selectman told him that the selectmen had determined not to pay surveyors for over-work.</p> <p>The plaintiff claimed ten dollars for over-work done upon the roads in district No. 6, between February 15th and April 1st, 1843, by himself, with his teams, sleds and ploughs, in removing obstructions in said roads, caused by drifts of snow. And there was evidence that work was so done, by the plaintiff, between said days, and that it was necessary work and of the value of ten dollars and upwards. Upon the evidence, the court ruled that the action could not be maintained. The plaintiff thereupon became nonsuit, and alleged exceptions to said ruling.</p>

<p>A testator appointed A. & B. his executors, and gave to his nephews all his property that should remain after payment of his debts, &c.: He also appointed B. trustee of said remaining property, empowering him to take possession thereof, and directing him to invest it on good security on interest, until he should have occasion to make payment according to the further provisions of the will, viz. to pay it to the testator’s nephews, in equal shares, as they should respectively come of age: A. & B. rendered an administration account, and the balance was retained in the sole possession of B., who gave no bond, as trustee : No further administration account was rendered by A. & B.: B. rendered a separate account, and a decree was thereupon passed that he should pay the balance thereof to the testator’s nephews, according to the directions of the will 3 but B. failed to perform this decree. Held, in a suit on the bond given by A. & B., as executors, that they were jointly answerable for the testator’s property, and that they and their sureties were liable for the amount of the distributive shares of the testator’s nephews.</p> <p>tinder Rev. Sts. c. 70, a legatee cannot put in suit, for his own benefit, the executor’s administration bond, and have execution awarded for his own use.</p> <p>In all cases of suits on administration bonds, except those mentioned in Rev. Sts. c. 70, §§ 3,4, 5, execution is to be awarded, without expressing that it is for the use of any particular person 5 and all money received on any execution so awarded is to be paid, as directed by § 11, viz. to the co-executor or co-administrator, if there be any, or to whoever shall then be the rightful executor or administrator 5 and the money so paid will be assets, in his hands, to be administered according to law.</p> <p>When an executor, who is unfit to be such, is sued on his administration bond, in a case in which execution is to issue without expressing that it is for the use of any particu lar person, the judge of probate should remove him, and appoint an administrator de bonis nonf with the will annexed, who will be entitled to the money that may be received on such execution.</p>

<p>A testator whose estate was insolvent, after giving to his wife certain real estate for life, and certain legacies to others, appointed W. his executor, to whom he made the fol lowing residuary devise and bequest: “ 1 give to my son W., to hold to him and his heirs forever, all the rest and residue of my real and personal estate, subject to the following liens, payments and charges : first, the payment of all debts that I may owe at my decease, and all funeral charges, and the erection of a suitable monument at my grave 5 second, to pay to my three daughters, A., B. and C., each, and to D., wife of J. B., the sum of $70; the aforesaid liens and payments to be made, one half in two years and one half in three years from my decease, with interest from that event: ” W. entered upon the real estate so devised to him, and occupied it two years, either in person, or by his lessees, and took notes from his lessees, for the rent, payable to himself, as executor. Held, that W. was not liable to account, as executor, for any nart of said rents and profits.</p>

<p>This was an action of assumpsit, on the money counts, against Asa A. Prouty and William Bell. The plaintiff, at the trial in the court of common pleas, before Cushing J. offered in evidence the following promissory note: “ April 25th 1843. Sixty days from date, for value received, we jointly and severally promise the president, directors, and company of the Greenfield Bank, to pay them, or order, fifty dollars at their banking house</p> <p>Asa A. Prouty.</p> <p>William Bell.</p> <p>Eph’m H. Thompson, surety.</p> <p>Thomas R. M’Gee, surety.”</p> <p>Ephraim H. Thompson was called as a witness, by the plaintiff, and testified that he knew the signatures of Prouty and Bell; that he first offered the note at the bank, with the names of Prouty and Bell only; that the bank declined taking the note without further security; that he offered the note a second time, after the other two had signed it; that he and M’Gee signed it at the bank; that after the note was discounted, Bell knew of it; that he (the witness) saw Prouty before the note was offered the second time, and Prouty told him to sign the note himself, and get M’Gee to sign it; that he saw Bell afterwards, at Colerain, and told him that he (the witness) did not get the money on the note with Bell’s and Prouty’s names alone, and that he and M’Gee had signed it; and that Bell said,. “ it is all right.”</p> <p>On cross-examination, this witness said, it was a week or more after the money was got, that he saw Bell and told him as before stated; that he got M’Gee to sign the note, at the request of Prouty alone; that M’Gee had the money, and that the witness paid it to him on being called upon by him to pay a debt which the witness owed him ; that Prouty owed the witness a debt of about $100, and that this note was taken in part payment of that debt; that he told M’Gee that Prouty so owed him, and that he would get the money of Prouty, or a bank note ; that it was very likely he told M’Gee what the consideration of the note was; that when the witness called on Prouty, Prouty said he had not the money, but he would get a bank note, and get Bell to sign it; and that, about the time the note became due and payable, the witness saw Bell, and he said he was willing to pay his share, a third or a fourth of it. So much of this testimony as tended to show that Bell was a surety, was admitted by the court, under objections from the plaintiff.</p> <p>The plaintiff contended, first, that the possession of the note by the plaintiff was prima facie evidence that he had paid it and taken it up, and conclusive unless rebutted; and secondly, that the terms and effect of a written contract cannot be varied, altered or controlled by parol testimony, and that it, therefore, could not be shown, by such testimony, that Bell was a surety only.</p> <p>The jury were instructed, “ that the first question for them to decide was, whether the plaintiff had paid the money due on the note ; and that, although no direct evidence of payment had been given, yet the possession of the note was a circumstance from which it was competent for the jury to infer that the note was paid by him: That if the jury should be satisfied that the plaintiff paid the amount of the note, the next question was, whether this payment was made for and on account of the defendants, Prouty and Bell; that if they were the principal promisors, and M’Gee and Thompson merely sureties, then the payment was made for their benefit, and the plaintiff would be entitled to recover; but if Prouty was the principal, and Bell only a surety, then, although they might be liable separately—the one, as principal, for the whole, and the other, as surety, for contribution of his share — yet they would not be liable jointly, as they were sued in this action: That the body of the note contained no evidence of the relation of these parties to one another, nothing showing which of them were to be regarded as principals, and which of them as sureties ; and that the only evidence appearing on the note, as to this matter, was the word 1 surety ’ written against the names M’Gee and Thompson: That it was competent for the defendants to show, by parol testimony, notwithstanding the signatures of M’Gee and Thompson alone had the word ‘ surety ’ written against them, that Bell was also a surety ; and that, if the jury should be satisfied that Bell was a mere surety, then he would not be liable jointly with Prouty, unless it should also appear to the jury that M’Gee became party to the note at the request of Bell.”</p> <p>The plaintiff then moved the court to instruct the jury, that though it might appear that Bell was a surety as respected Prouty, yet, unless knowledge of that fact should be brought home to M’Gee, Bell would still be liable as principal, as to him; and that, though Bell might have been merely a surety of Prouty, as between him and Bell, yet if he intended to be liable as principal, so far as Thompson and M’Gee were concerned, he would still be liable in this action. But the court declined so to instruct the jury.</p> <p>A verdict was returned for the defendants, and the plaintiff alleged exceptions.</p>

<p>A. granted to the Western Rail Road Corporation full and free license and authority to locate, construct, repair and forever maintain and use a rail road, upon, through and over his land, and to take his land therefor, to the extent authorized by their charter ¡ The land was so situated that the embankment of the rail road would cause water to accumulate on the upper side thereof, and it became necessary to provide for the passage of water to the lower side: The corporation therefore made culverts, in suitable places, and in a convenient manner $ but the situation of the land was such that it was necessary to connect ditches with the culverts, and extend the ditches, beyond the line of the location of the rail road, into the land of A., in order to prevent the water from setting back so as materially to injure the rail road or damage the land of A. Held, that the corporation were authorized by said license so to make said culverts and ditches, under the rule of law, that a grant of a thing includes the means necessary to attain it Held also, that the corporation were authorized, by said license, to deepen and widen, in the land of A., beyond the line of the location of the rail road, the bed of a mountain stream, over which the rail road was laid out and constructed, to facilitate the discharge of the waters of the stream; such deepening and widening being necessary to secure the rail road from damage, or to prevent the land of A. from being broken and washed away. It seems, also, that the corporation had authority to do the aforesaid acts, under their charter and the Rev. Sts. c. 39.</p>

<p>By St. 1809, c. 86, trustees of the school funds in the town of Springfield were incorpo rated, with authority to sell and convey such lands as the town had directed, or should thereafter direct, to be sold for the use of schools: The town, in 1810, passed a vote, that said trustees be authorized to sell such parts of the land belonging to the town as the selectmen should, by writing, certify that it would be for the interest of the town to sell. Held, that future boards of selectmen, as well as the selectmen chosen for the year 1810, were intended by this vote.</p>

This was an action of debt on St. 1842, c. 60, § 4, by which it is enacted, that “ the owner, agent or superintendent of any manufacturing establishment, who shall knowingly employ any child under the age of tAvelve years in such establishment, contrary to the provisions of the third section of this act,” (i. e. more than ten hours in any one day,) “shall forfeit the sum of fifty dollars for each offence, to be recovered in any court of this Commonwealth, competent to try…

<p>The cause of action against a sheriff, for the taking of insufficient bail by his deputy, accrues on the return of non est inventus upon the execution against the principal; and the statute of limitations begins to run from that time.</p> <p>A deputy sheriff arrested a debtor on a writ, and took an instrument in the form of a bail bond, except that it was not under seal, signed by said debtor and one surety only, and returned that he had held the debtor to bail: He did not return said instrument with the writ, but filed it in the clerk's office, several months afterwards: The debtor ab sconded, and the execution which issued against him, was returned non est inven tus: The'ereditor, having failed to recover of the bail, brought an action against the sheriff, for the default of the deputy in not taking sufficient bail. Held, that the measure of the plaintiff's damages was the sum that he had lost by the misdoings of the deputy, viz. the sum which the plaintiff would have obtained, if sufficient bail had been taken; that this sam, primé facie, was the amount of the plaintiff’s judgment against the debtor; but that evidence of the debtor's inability to satisfy that judgment was admissible in reduction of damages. Held also, that evidence as to the debtor's property and business, a year or two after the plaintiff's execution against him was returned, was competent to be considered by the jury, with reference to the reduction of damages aga nst the sheriff.</p>

<p>The defendant was found guilty, in the court of common pleas, of selling spiritous liquor, without license, to divers persons mentioned in different counts in an indictment. The first count alleged that the defendant, at Springfield, on the 10th of August 1844, “ did presume to be a seller of wine, brandy, rum and other spiritous liquors, to be used in and about his dwelling-house then and there situate, without being first licensed, according to law, as an innholder or common victualler, with authority to sell spiritous liquors; and did then and there sell to one Thomas L. Clark, one half gill of spiritous liquor, to be used in and about his dwelling-house then and there situate, without being first duly licensed, according to law, as an innholder or common victualler, with authority to sell spiritous liquors, against the peace,” &c.</p> <p>Each of the other counts omitted the allegation that the defendant presumed to be a seller of wine, brandy, &c., without being first licensed as an innholder, &c., and alleged a sale to an individual, in the form adopted in the latter part of the first count.</p> <p>The defendant moved in arrest of judgment, on the grounds hereinafter mentioned in the opinion of the court. This motion was overruled by the court of common pleas, and the defendant alleged exceptions.</p>

<p>In an indictment against the dcfnidant, the first count alleged that he, at Springfield, on the $Oth of December 1844, not being then and there licensed as an innholder, victualler, or retailer of spiritous liquors, for hire, gain and reward, unlawfully did suffer certain persons, whose names to the jurors are unknown, to resort to a certain building there situate, and by said Stowell then and there actually used and occupied, for the purpose of playing at bowls and nine pins, the same being then and there an unlawful game, against the peace,” &c. There were four other counts in the indictment, which charged the defendant, in the same terms, with committing a like of-fence on the 1st, 4th and 11th of January 1845, and on the 8th of February 1845.</p> <p>At the trial in the court of common pleas, before Washburn, J. the district attorney suggested that Chester B. Chappell, a juror from the town of Springfield, should leave the jurors’ seat, because said town was interested in the cause, inasmuch as the fine, if any, to which the defendant was liable, would go to the use of the town. The defendant’s counsel replied that he was willing to waive any objection to said juror; but said Chappell left his seat, and another juror was sworn and served in his stead; no objection to this course being then suggested by the defendant.</p> <p>The defendant contended, and asked the court to rule, 1st, that the indictment, though containing five counts, set out only one offence, and that if the jury deemed him guilty, they should find him so only on one count, and not guilty on the others; and 2d, that the indictment did not describe any offence; the game of bowls or nine pins not being an unlawful game, unless accompanied by gaming or betting. The judge declined so to rule, and the jury found the defendant guilty on the first two counts. The district attorney then entered a nol. pros, as to the other counts.</p> <p>The defendant alleged exceptions, and also moved in arrest of judgment, on the ground that Chappell should not have left the jury. This motion was overruled, and further exceptions were alleged by the defendant.</p>

Indebitatus assumpsit for labor alleged to have been performed for the defendant by the plaintiff’s minor son. There was also a count on a quantum meruit.

<p>P., the second indorser of a note, residing in New York, duly received notice from a notary public of the dishonor of the note, and also a like notice from the notary, addressed to S., the first indorser, who resided at Springfield, but whose residence was unknown to the notary : P., on the day on which he received these notices, transmitted to S., by mail, the notice addressed to him by the notary. Held, that this notice, so transmitted, was sufficient to render S. liable to P., who had paid the note.</p>

Assumpsit on the money counts. At the trial in the court of common pleas, before Merrick, J. the plaintiffs offered in evidence a note for $300, dated December 15th 1842, signed by Erastus R. Wood, payable to the defendant, or order, at the Chicopee Bank, in four months from date, and indorsed by the defendant.

Assumpsit by the payee against the drawers of a bill of exchange. At the trial in the court of common pleas, before Ward, J. the plaintiff gave evidence which was sufficient, ■prima facie, to entitle him to a verdict. The defendants offered in evidence a discharge under the insolvent laws of this Commonwealth, granted by a master in chancery on the 6th of November 1844.

Assumpsit to recover the amount of supplies furnished by the plaintiffs to Mary Hatstat, widow of George Hatstat, and her children, paupers, whose settlement was alleged to be in Dana.