Volume 51 — Massachusetts Reports

<p>The intervening rent and damages, which a lessee, on appealing from the judgment rendered by a justice of the peace, in the process given to a lessor by Rev. Sts. c. 104, recognizes to pay to the lessor, in case of final judgment for him, include nothing more than the rent at the stipulated rate, and interest thereon.</p>

The complainant, on the 11th of January 1844, made oath to the following accusation : “ The voluntary examination of Jane C. Rice, of Springfield, in the county of Hampden, single woman, taken before me, Josiah Hooker, one of the justices of the peace in and for said county, who saith that she has given birth to a child, which child is still living, and was born a bastard, and accuses Alonzo C. Chapin, of said Springfield, in said county, of being the father of said child,”…

<p>If a mortgagor of chattels makes a new and distinct contract with the mortgagee to deliver to him the mortgaged chattels, and also other chattels, to be held as secu rity for payment of the debt which the mortgage was made to secure, and delivers them accordingly, and the mortgagee takes and holds possession of them under such new contract, he thereby becomes pawnee of all the chattels so delivered. Chattels that had been mortgaged by A. to B., to secure certain notes, and also other chattels of A., were pledged by A. to B., by a new and distinct contract between them, to secure the same notes, and were afterwards attached in a suit by a third person against A.: B. thereupon stated in writing an accurate description of the</p> <p>notes for which the chattels were liable to him, and delivered it to the attaching officer, with a written demand on him for payment of the amount of said notes; In the writing so delivered to the officer was this declaration of B., viz: “ The chattels attached by you are liable and mortgaged to me, and possession taken, for security of the following notes.” Held, that the demand of B. was not restricted to the chattels which had been mortgaged to him, but included all the chattels on which he had a lien by pledge.</p> <p>Under the Rev. Sts. c. 90, § 79, which require, when chattels, which are subject' to pledge, are attached, that u the pawnee shall, when demanding payment of the money due to him, state in writing a just and true account of the debt or demand for which -the property is liable to him, and deliver it to the attaching creditor or officer,” if the pawnee demands more than the amount due to him, his demand will not avail him, unless it appears, 1st, that the error was the result of accident or mistake, and 2d, that the value of the property attached was less than the just and true sum for which it was pledged, so that the attaching creditor was not injuriously misled by the error, and has not thereby suffered any pecuniary loss.</p>

<p>An allegation, in an indictment on the Rev. Ste. c. 47, § % that the defendant sold spiritous liquor to A., is supported by proof that he sold to A. brandy or gm mixed with sugar and water.</p> <p>. t is the duty of a jury, in criminal cases, to follow the instruction of the court in matter of law.</p>

<p>A town voted that certain land, claimed by the town, be sold at auction to the highest bidder, and that a committee of three be authorized to sell it, and to give a warranty deed thereof to the purchaser i One of the committee, who was not a licensed auc tioneer, sold the land at auction to A., who was the highest bidder: A. refused to lake a deed of the land, but consented that B. might take the land at A.?s bid 3 and the committee thereupon made a deed of the land to B., in behalf of the town. Held, that the illegal act of the auctioneer, in selling the land without being licensed, did not affect the conveyance to a purchaser who did not know that the auctioneer was not licensed 3 that the sale was substantially in pursuance of the vote of the town 5 and that the deed to B. was a valid conveyance of the title of the town.</p> <p>The town of R., having no title to land besides a survey thereof, and an entry thereon, under a claim of title, conveyed the land to A. by deed of warranty, and A. sued B. for a subsequent trespass upon the land. Held, that A. could not maintain the action, if B., prior to the date of the entry and deed of the town, had possession of the land, claiming title.</p> <p>Land was described, in different deeds, as bounding “ on the mountain,” and “ by the mountain,” and “the foot of the mountain.” Held, in the particular case, that these words were too indefinite and uncertain to control the courses, distances, and other references in the deeds, descriptive of the land. Held also, that it was a question, depending both on law and fact, whether these words excluded or included a certain part of the mountain, and that this question should have been submitted to a jury, under such directions from the court, as to the rules of construction, as were applicable to the case. Held also, that it might be important, in order to decide this question, to ascertain the location of adjoining lots of land.</p>

<p>A town, at its first settlement, set apart and appropriated, for a burying gfound, a trac* of land bounded westerly on Connecticut River, and a part of said tract was used for that purpose, and was under the charge and oversight of the town until 1696, when the first parish in the town became a separate organization, and assumed, and ever afterwards had, the exclusive possession and charge of the burying ground: About the year 1780, the parish made provision for fencing the burying ground, and erected, about the year 1800, a fence on the top of the bank of the river: That part of said tract, which constituted the shore and bank of the river, being unsuitable for a burying place, was never used as such, and the parish, in 1842, conveyed it to A.: B. after wards entered thereon, by license of the town, and A. brought an action of trespass against him. Held, that parol evidence was not admissible to prove that the shore and bank of the river were known as part of the burying ground, without first proving the loss of the record of the laying out thereof) that said shore and bank could no* be considered as appurtenant to the burying ground 3 that the appropriation of the land, for the purpose of a burying ground, was not a donation to the use of the parish 3 that the parish had no title to said shore and bank, nor any possession thereof) and that A. could not maintain his action.</p>

<p>Trespass for breaking and entering the plaintiff’s close. The defendants, in their specification of defence, alleged that the title to the locus in quo was in the inhabitants of the town of Springfield, and that their entry thereon was under a license from said inhabitants.</p> <p>At the trial in the court of common pleas, before Merrick, J. the plaintiff introduced the same evidence as in the next preceding case of Stearns v. Woodbury, (ante, 27,) and the judge made the same rulings upon the questions raised, as stated in the bill of exceptions in that case. The plaintiff also offered in evidence the following deed, dated and recorded January 12th 1785: “ Know all men, that I, Aaron Warriner of Springfield, for and in consideration of thirteen pounds and ten shillings to me in hand paid, before the ensealing hereof, by Moses Bliss, Zenas Parsons and Ariel Collins, all of Springfield, the receipt whereof I do hereby acknowledge, have given, granted, bargained and sold unto them, the said Moses, Zenas and Ariel, in trust to and for the use of the inhabitants of the first parish in Springfield, for a burying ground forever, a certain piece of land lying in Springfield aforesaid, at the rear end of my home lot, containing about half an acre, and described as follows, viz. beginning at the monument of the late Rev. Mr. Glover, at the westerly end, and extending easterly the whole width of my said lot, nine rods, or to the fence that goes across said lot, bounding northerly upon land of Moses Church, easterly upon my own land, southerly and westerly upon the burying ground ; being the whole of my right in said land, from the said cross fence to the river. To have and to hold the said land and premises to them, the said Moses, Zenas and Ariel, in trust to and for the use of the inhabitants of said first parish, and their heirs forever, for a burying yard. And I, the said Aaron Warriner, for myself, my heirs, executors and administrators, do covenant, promise and engage the before granted land and premises unto the said Moses Bliss, Zenas Parsons and Ariel Collins, in trust to and for the use of the inhabitants of said parish, and their heirs forever, that before the ensealing hereof, I am the true, sole, proper and lawful owner and possessor thereof, and have good right to sell the same as aforesaid, and that I will warrant, secure and defend the said land, with its appurtenances, unto them, the said Moses, Zenas and Ariel, in trust as aforesaid, to and for the use of the inhabitants of said first parish and their heirs forever, as a burying yard, ap aforesaid.” (The land described in this deed was not the same which was in question in the next preceding case, but was the North Burying Ground.)</p> <p>The judge ruled, that though the locus in quo was included in the description in said deed, no title thereto was conveyed by said deed to said first parish. A verdict was returned for the defendants, and the plaintiff alleged exceptions to said rulings.</p>

This was a complaint, which alleged that the respondents flowed the complainant’s land in Brimfield, by means of a mill dam erected and continued by them across Quinebog River, “ for the purpose of working a factory and water-works.” The respondents pleaded the general issue, (not guilty,) and filed the following specification of defence: “ That they, and those under whom they claim, have had peaceable possession and occupation of said factory, water-works and dam, more than…

Trespass for taking, &c. a dish-mill and machinery thereto belonging, ten cows, one heifer, two horses, an ox-cart, a wagon, and other chattels, alleged in. the writ to be the property of the plaintiff. At the trial in the court of common pleas, before Ward, J. the plaintiff claimed title to said chattels, under a mortgage thereof made to him by William C. Clark, dated February 17th 1843.

<p>Writ of entry to recover two tracts of land in Granville. The action was commenced in the court of common pleas, and the demandants counted on the mortgage hereinafter mentioned. The case was submitted to that court on the following statement of facts:</p> <p>“ The demandants claimed title to the demanded premises under a mortgage thereof, (which is part of the case,) made on the 27th of November 1827, to Joel Root, their intestate, and Alva Stow, one of the tenants, who defends this suit, by-Rowland Bancroft and Joseph W. Bancroft, the other tenants, who have been defaulted. This mortgage was given to secure a note of even date therewith, made by said Rowland and Joseph W. to said Root, for $136, payable in one year, with annual interest, and also to secure two other notes, made by said Rowland and Joseph W. to said Root, and signed by said Alva Stow, as their surety, each of the same date and for the same sum, with annual interest, one payable in two years, and the other in three years.* On the 7th of May 1832, a suit was brought in the names of said Root and Stow, upon said mortgage, and at the April term of the supreme judicial court, in 1834, conditional judgment was recovered for the payment of the first of said notes ; the other two notes having been previously paid by said Stow. Execution issued on said judgment, October 15th 1834, but never was committed to an officer, nor did said Root take possession of the premises. Afterwards, viz. on the 20th of July 1840, the said Stow, having an execution against said Rowland Bancroft and Joseph W. Bancroft, caused their right in equity to redeem the premises to be sold thereon, and purchased the same. The sheriff made to him a deed, under which he entered, and has since had exclusive possession.”</p> <p>The case came into this court by appeal from the judgment of the court of common pleas on the foregoing agreed statement.</p>

<p>This was an action of waste, to recover twenty six acres of woodland in Palmer, alleged to be wasted by the defendant, tenant thereof for life, and also to recover the amount of damage done to the land. (See Rev. Sts. c. 105, § 1.) The plaintiff claimed title under a deed from the children of Betsy Larned, the defendant’s wife, alleging that before her marriage, to wit in 1809, the said land was laid out to her, by the name of Betsy Cargill, upon the rights of Ebenezer Merrick and John Moore; and that said Betsy had deceased. The defendant filed, as a specification of defence, a denial that the plaintiff had any title to said land, and also a denial that the defendant was tenant thereof for life. Trial before Dewey. J. whose report thereof follows:</p> <p>The plaintiff, for the purpose of showing the original location to Betsy Cargill, introduced the books of the Proprietors of Elbows, (now Palmer,) in which it appeared that the premises described in his writ were laid out to her, as in said books declared; but it did not appear that the entry of the location was in the hand writing of the clerk of the proprietors, or that the surveyor, who laid out the land, was their sworn surveyor, or that the land was laid out by any vote of the proprietors. The defendant thereupon objeuteu., umt said location gave no title to said Betsy; and he offered to prove that said books were defective, in respect to the signature of the name of the clerk, in many other places on said books. The judge ruled, that though the books might not show, under said location, a title in the plaintiff, valid as against a stranger, yet if said Betsy claimed the land by virtue of said location, and the defendant, after his marriage, entered upon the land under it, the location was good as against him, and would authorize the plaintiff to maintain this action. To this ruling the defendant excepted.</p> <p>The plairitiff then introduced evidence tending to show that the defendant had, at various times, admitted that the land was laid out to his wife, and that, since her death, he held the same subject to the rights of her children and heirs. But it was not proved that she entered upon the land before her marriage.</p> <p>The defendant, for the purpose of doing away the effect of these admissions, introduced the testimony of a witness, tending to show that, eight or ten years ago, he was on the land with the witness, who was negotiating with the defendant about the purchase of some timber upon the land, and that the defendant, at that time, stated to the witness that he (the defendant) had examined the original location, that it was defective, that his wife derived no title under it, and that he claimed to hold it by, and was then occupying it under, a possessory title. The counsel for the defendant insisted that these declarations, made upon the land, were a disclaimer of the title of the heirs of his wife, and vested a possessory title in him. But the judge ruled, that this evidence did not show a disseizin of said heirs as ■ reversioners; that the jury might consider the evidence as bearing upon the general question whether the defendant’s entry and occupation had been under the rights of his wife, but not as evidence of a disseizin which would bar the reversioners, if the defendant originally entered under the title in his wife, and had, up to that time, held and occupied the land as tenant by the curtesy.</p> <p>On the subject of waste, evidence was introduced, tending to show that the defendant had cut over a portion of the tract, upon one corner thereof, consisting of about two acres ; that he had cut off most of the timber and wood from the tract. and had trimmed up the residue, to fit it for a building lot; that the timber cut upon it was partly cut for the purpose ot furnishing timber and lumber for a dwelling-house and bam ; that some of the timber was left upon the land, and that the boards, which were sawed from the logs, were carried back and placed upon the land ; and that some of the trees which he cut had been sold and carried away. The defendant contended that the cutting of that portion of the lot, for such purpose, and in such manner, was not waste upon that portion. But the judge ruled otherwise.</p> <p>Upon the question as to waste upon the entire tract, the judge ruled as follows : “ In reference to a timber and wood lot like the present, containing twenty six acres, the act of cutting one, two, or only a very small number of trees, would not create a forfeiture of the whole lot, and entitle reversioners, in an action of waste, to recover the whole of it. But if the tenant for life should have cut valuable timber trees, in considerable numbers, extending his cutting, in different places, over the whole lot, selecting valuable trees, and cutting the same to such an extent, over the whole lot, as to do substan tial damage to the value of every part of the lot, such cutting would be waste in the whole lot, and subject the party tc a forfeiture of the whole twenty six acres. If the cutting of the trees shall, however, appear to be confined to any particular portion of the lot, leaving entirely free from all cutting another portion of the lot, and that any considerable and substantial portion of the lot, and one which can be distinctly traced, and severed from the portion cut upon, the forfeiture for waste would not extend to this last described portion of the lot, on which there was no cutting.” To this ruling the plaintiff excepted, as not sufficiently favorable to him. The jury found a verdict for the plaintiff, as to the two acres first mentioned, and for the defendant as to the remaining twenty four acres.</p> <p>New trial to be granted, if the plaintiff was entitled to instructions more favorable to him, or if the ruling excepted to by defendant was wrong.</p>

<p>A will, written by the testator’s hand and signed by him, had, at the end thereof, the usual words,t( signed, sealed, published and declared by the abovenamed E. to be his last will,” &c., and the names of three attesting witnesses under those words. The first and third attesting witnesses testified that they subscribed their names thereto, at different times, at the testator’s request and in his presence, and that he declared to each of them that the paper was his last will: The first witness testified, also, that he saw the testator’s signature to the paper ? The second attesting witness testified that the testator asked him to sign the paper, and pointed out to him the place where he wished him to put his name, viz. under the aforesaid words, “ signed, sealed/' &c., and that he signed his name there, in the testator’s presence, but that he did not know what the paper was, and did not notice the signature of the testator, nor of the previous attesting witness, though he surmised that it was the testator’s will. Hddf that upon this testimony, and such inferences as a jury might make from it, a verdict finding that the will was duly executed, should be sustained.</p>

<p>The only question in this case was, whether William Dwight of Springfield, who was summoned as trustee of the principal defendants, was chargeable on his answers. To the general interrogatory, whether he had, at the time of the service of the writ on him, any goods, effects or credits of said defendants in his hands or possession, he answered as follows:</p> <p>“ About the last of October 1840, I received a letter from C. C. Trowbridge, Esq. president of the Bank of Michigan, stating that certain funds which the bank had placed in the hands of John Ward & Co. for the special purpose of paying certain drafts of the bank, made to various individuals, and not then due, were exposed to be attached by brokers, <fcc., and proposing to transfer those funds to my credit with Ward &. Co., and desiring me to make such arrangements with Ward & Co. as to provide for the payment of said drafts, from said funds, so far as they would be sufficient to pay the same ; at the same time enclosing me an order on Ward & Co. to pay me the balance of account then to the credit of the bank on their books. This arrangement was accordingly made prior to or by November 12th 1840. On the above order, the funds were placed to my credit with Ward & Co., and they were instructed by me to pay such drafts of the bank as should be presented at maturity, so long as said funds were sufficient; and on the 12th of November 1840, I wrote Mr. Trowbridge, from New York, advising him of the arrangement, and adding, ‘ every thing • of yours is now in my hands, and what funds you have here are to my credit with Ward. Such drafts as you may draw, or have drawn, on Ward & Co. will be paid by them, to the extent of the credit I may have with them, and no further.’ At the time said funds were thus placed to my credit, paper of the bank, not then due, was transferred to me, the avails, when collected, to be appropriated to the same objects. These funds were placed in my hands for the specific purpose of paying particular creditors of the bank, having drafts therefor, and were so held by me. Additions were made to the funds, from time to time, by collections, as above mentioned, and drafts paid therefrom up to May 1842, when it was ascertained that the funds and paper provided for these drafts would not, probably, be sufficient to pay more than 25 per cent, upon the amount of the drafts ; and Ward & Co. were instructed by me to pay only that amount on each, as presented. The outstanding drafts then amounted to over $20,000, in about seventy separate drafts. From that time to the time of the service of the writ in this case, (April 7th 1843,) 25 per cent, was accordingly paid from these funds upon a portion of the drafts ; and there remained to my credit with Ward & Co., at the time of said service, as I am advised by them, the sum of $1261-82, subject, however, to any commissions and charges due me for the whole business; and there then remained unpaid, of said drafts, a much larger amount; and I believe said drafts, to a much larger sum, had been presented to Ward <fc Co. and protested. Prior to the time when the funds were first placed to my credit, 1840, the Bank of Michigan was much embarrassed, and had refused specie payments ; and as the bank had drafts of the State of Michigan on the United States Bank, which it was supposed would be paid at maturity, and which constituted the principal basis of the funds in the hands of Ward &. Co., the bank made the arrangement with sundry creditors, as I am advised and believe, to take, for their debts, drafts by the bank upon Ward & Co. on time, maturing when it was supposed the state drafts would be paid. After November 1840, and before the service of this writ on me, the bank had utterly failed, and made an assignment, in form, to three trustees, of all their effects, for the benefit of their creditors ; and of these facts the plaintiff, who is a large stockholder in the bank, was advised before said service. He was also previously advised by me, generally, that these funds were placed in my hands, as trustee, for the payment of specific drafts of the bank.”</p> <p>To a subsequent interrogatory, whether he held “ said funds by any other title, or for any other purpose, than what is manifested by the aforesaid letters,” his answer was, that his correspondence with John Ward & Co., and his instructions to them respecting these funds, had doubtless given encouragement, if not assurances, to the holders of said drafts, that they would be paid from the funds, if adequate. He also annexed a copy of the assignment of the Bank of Michigan, (mentioned in his answer to the previous interrogatory,) made to three persons, on the 10th of January 1842, transferring to them all the property, rights, credits and demands whatsoever of the bank, (except its banking house and the land on which it stood,) in trust for the payment of all the creditors of the bank. He further stated that said assignment was made with the written consent, previously given, of himself and of the plaintiff in this action, as stockholders, and that they both had since assented to it; that some, if not all, of the holders of said drafts, previously to the service of this writ upon him, had received notice that said funds were placed in his hands for payment of their claims, and assented thereto; of which notice and assent he had been advised; and that the assignees of the bank had informed him, that they, under the aforesaid assignment, claimed said funds in his hands, if they were not by law liable to the claims of said draft holders.</p>

<p>In the levy of an execution, the real estate levied on was described as “ all the land, supposed to be about 200 acres, that is or can be overflowed by the water raised by the great dam, at its present height, and all the real estate, rights and privileges conveyed to” the execution debtor, “ by deeds from the following persons, recorded in the registry of deeds, as follows, to wit,” among others, “ D. D. recorded book 306, page 138: ” On that book and page of the registry were two deeds from D. D. conveying different parcels of land. Held, that the levy was not, for that cause, void for uncertainty 3 but that the land levied on included that which was described in both deeds, or in .one of them only, according to the further description of the land in the levy.</p> <p>A return-of a levy of an execution stated an appraisement and setting off of a certain tract of land by metes and bounds 3 “ also all the land, supposed to be about 200 acres, that is or can be overflowed by the water raised by the great dam across P. H, Brook, situate on the tract of land first above described, at its present height, with the right of flowing all such land, and of keeping said dam at its present height, and all the other rights of flowing, and other privileges and appurtenances belonging to said dam and land, and all the real estate, rights and privileges conveyed to the ” execution debtor by certain deeds referred to 5 u also the right and privilege of raising the dam across said P. H. Brook, connected with the mill owned by M. L. in the year 1836, being the dam next above the great dam aforesaid, to the height of four feet,” &c., u and the right, now and at all times, to maintain, repair and rebuild said dam, to the height aforesaid,” &c. 5 u also, all the land, supposed to be about 150 acres, that is or can be overflowed by the water raised by the said L. dam at its present height, with the right of flowing all such land, and of maintaining said dam at its present height, and all other the rights, privileges and appurtenances belonging to said dam and land, and all the real estate, rights and privileges which were conveyed to the ” execution debtor, by deeds from certain persons named: The whole of the estate, as above described, with all the privileges and appurtenances thereunto belonging, were appraised and set off at a single sum: In an action to try the validity of this levy, it was objected that the levy was invalid, because it appeared that part of the estate therein described was appraised twice. Held, that this objection was not apparent on the return $ that the various forms of describing the property levied on were adopted with a view to pass the entire estate of the debtor, as his interest in the estate might afterwards be more fully disclosed ; and that the objection to the levy could not prevail.</p> <p>t is sufficient, in the levy of an execution on a debtor’s right and privilege to raise a dam, and overflow, &c. the land of A., to set off such right and privilege, “ subject to the conditions, exceptions and reservations named in the deed of said A.” to the execution debtor, without specifying those conditions, exceptions and reservations.</p> <p>When appraisers certify that real estate, which is seized on execution, cannot be divided without damage to the whole, and they therefore set off to the execution creditor a fractional part, to be held by him in common with others, and the levying officer makes his return accordingly, the court must hold, in an action against the officer for making a defective levy, that it was necessary to set off the estate in that manner.</p> <p>When an officer, in his return of the levy of an execution, states that he delivered to A., the agent of the execution creditor, seizin and possession of the premises levied on, such creditor, in an action against the officer for a defective levy, cannot give evidence that A. was not his agent.</p> <p>An officer made a return of the levy of an execution on a certain fractional part of real estate described in the return, stating that he had delivered seizin and possession thereof to the execution creditor, and thereupon deposited the execution, with the return indorsed thereon, in the office of the register of deeds, for record : Finding that this levy had been, by mistake, made for too large a sum, and was therefore invalid, the officer applied to the register to give back to him the papers • out the register declined so to do, before they should be extended on the record : The officer thereupon, before the time when the execution was made returnable, and before it was returned into the office of the clerk of the court, procured the appraisers, whom he had employed in the first levy, to make a new appraisement and setting off, and he made a new and correct return, stating a levy on a smaller fractional part of the same real estate, and also stating that he had delivered seizin and pi ^session thereof to A., the agent of the execution creditor 3 and he annexed said return, by permission of the register, to the execution then lying m the register’s office, and therein declared that he meant and intended it as the true and only return of his doings in regard to the levy of said exepution: This return was extended on the record, by the register, immediately after the record, which he had, ir the mean time, made of the execution and former levy, and the officer then drew across his original return a black line, without the register's consent: No adverse right to the estate levied on was acquired by any third person, between the times of depositing the first and second returns in the register's office, for record. Held, in an action by the execution creditor against the officer, for an alleged default in not making a valid levy, that the officer had authority to make an amended return of, his levy; that this amended return was valid and effectual; and that the execution creditor had no cause of action against him.</p>

<p>In an action of trespass, brought by an administrator, for taking chattels, an averment in the declaration, that the defendant took and carried away certain chattels “ of the plaintiff’s intestate,” sufficiently avers property m the intestate, and will be construed as an averment of a taking and carrying away in his life time : But qucere, whether such action can be maintained by an administrator.</p> <p>In an action by an administrator against A., to recover the value of a cow taken by him from the intestate, B. testified that the cow was the property of the intestate by virtue of an exchange of cows by him and the intestate, and that there was an agreement, at the time of the exchinge, that he should keep the cow in question for the intestate. Held, that A. might prove — as one link in the chain of evidence that the intestate was not the bona fide owner of the said cow — that B., after said exchange, made a mortgage of said cow to A., without proving that it was made with the knowledge or consent of the intestate.</p>

Writ of entry to recover eighteen acres of land in Uxbridge. Trial before Shaw, C. J. whose report thereof was as follows: « The demandant claimed title to the demanded premises as tenant in tail, and derived the same from John Buxton, son and devisee of Benjamin Buxton, under the last will of said Benjamin, who died in the year 1780, leaving two sons, James and John.

Trespass upon the case for obstructing the flow of water, in logs, from a spring in the land of Dakin, one of the defendants, across his land, to the plaintiff’s house and barn.

<p>The court has no jurisdiction m equity of a suit for the redemption of land sold for payment of taxes.</p> <p>The court, having no distinct equity power in the matter of frauds, cannot, for the sake of aiding parties injured by fraud, convert the fraud into a trust, and thus support a bin in equity for relief.</p> <p>When a bill in equity seeks relief which the court has no power to grant, and also seeks a discovery, the defendant may demur to the whole bill, if it do not aver that a suit at law is pending, or is about to be brought, in which a discovery may be material</p>

This was an action on the Rev. Sts. c. 25, 22, to recover damages which the plaintiff alleged that he had sustained by reason of a defect in a highway in the town of Phillipston, in consequence of the snow with which it was incumbered not having been seasonably removed or trodden down, so as to make the way safe and convenient. At the trial before Wilde, J. the plaintiff introduced evidence tending to show the existence of the alleged defect.

This was an action of debt to recover rent of real estate, from .the 1st of April 1843, to the 26th of March 1844. Trial ' in the court of common pleas, before Merrick, J. whose report thereof was as follows: The real estate in 'question, before 1841, was owned by one Twitchell, and was mortgaged by him for its full value. In 1841 Twitchell leased, said estate to one Houghton, by indenture, for a term expiring on the first of April 1843.

Assumpsit to recover expenses incurred for the support of Timothy B. Wheeler and his wife, paupers, whose settlement was alleged to be in Bolton. At the trial in the court of common pleas, before Wells, C. J. the only point in dispute was the settlement of the paupers. It was admitted by the defendants that Timothy B. Wheeler formerly had his settlement in Bolton, and that it still continued there, unless he had acquired one in Berlin.

Assumpsit on a note signed by the defendant, dated January 31st 1843, promising to pay Samuel R. Leland, or order, $423-39 in eight months, and indorsed in blank by said Samuel R. At the trial in the court of common pleas, before Merrick, J. one ground of defence was payment; and for the purpose of supporting this defence, the defendant offered in evidence a bill of sale from said Samuel R. to him, of even date with said note, of a stock of goods valued in said bill at…

This was an action of assumpsit to recover the rent of a farm occupied by the defendant, under Joseph Robinson, from October 1st 1842 to April 1st 1843.

Assumpsit to recover for professional services rendered and money paid by M. L. Stowe, the plaintiff’s intestate. The action was commenced on the 23d of February 1842, by the intestate, who died in May 1843. At the next term of the court of common pleas, (September 1843,) the plaintiff took upon himself the prosecution of the suit. At September term 1844, the defendant moved to file his claims in set-off.

<p>Assumpsit to recover the value of 500 molasses barrels, alleged to have been purchased of the plaintiffs, by Horace Warner, for the defendant. Trial in the court of common pleas, before Wells, C. J. whose report thereof was as follows:</p> <p>Horace Warner testified in chief, that he was directed by the defendant to purchase the barrels for him ; and on cross-examination, he stated that the defendant, at the same time, gave him a writing, which was substantially in the following terms : “ Buy for me the following articles ; ” enumerating various barrels and casks of different kinds. The defendant thereupon moved the court that all parol evidence of authority should be excluded, as the writing was the authority of the witness, and the only proper evidence of the extent of his authority. It appeared from further testimony of the witness, that said writing was not signed by the defendant, and that his name was not in any way borne upon the paper. The court being of opinion that the writing was a mere memorandum, given to the witness to assist his recollection, and not a power of attorney, ruled that the witness might testify to any verbal directions which the defendant gave him.</p> <p>The defendant’s counsel offered to put in evidence a memorandum book, kept by the defendant with his agent in Boston, who had a general authority to act for him after his departure from Boston for the South, containing a list of barrels to be received by said agent, from various persons, for the defendant; which book was given to said agent before the barrels in question were to be delivered, and after they were contracted for by said Horace. The plaintiff had previously introduced testimony tending to show that the defendant directed said Horace to have the barrels transported to Boston, and then to call on said agent and ascertain from him where the barrels were to be deposited ; or what was to be done with them when they should be delivered in Boston. The defendant offered this book for the purpose of proving (among other things) that said agent had no authority to receive the barrels in question. The court ruled that said book was not evidence for any of the purposes for which it was offered ; but admitted the agent to testify that the defendant directed him about receiving and taking charge of certain barrels purchased of sundry persons, and did not give him notice of any barrels purchased of the plaintiffs, nor any directions respecting such barrels.</p> <p>The defendant also offered in evidence two letters — one of them written by the agent aforesaid to the defendant, when the barrels in question came to the agent, stating that said barrels were brought for him from the plaintiffs — the other, the answer by the defendant, to said letter, written by the defendant at Mobile, on receipt of the letter first named, in which the defendant said that he did not know the plaintiffs in the transaction. The court ruled that said letters were inadmissible in evidence.</p> <p>The defendant’s counsel requested the court to instruct the jury that, if they were satisfied that there was a contract for goods above the price of $50 — no earnest being given, no payment made, and no note or memorandum of the bargain — unless the plaintiffs proved that some of the goods were actually received and accepted by the defendant, then, by the Rev. Sts. c. 74, § 4, the .plaintiffs could• not maintain this action. But the court instructed the jury, that if they were satisfied, by the evidence, that the defendant directed the said Horace to cause the said barrels, when purchased, to be transported to Boston, and there to be deposited in such place as the defendant’s said agent should direct, and the plaintiffs, in pursuance of said direction, did transport the said barrels to Boston, and did there deposit them in a place designated by the defendant’s agent, and the said agent did afterwards ship them to the South, to the place where, by general directions of the defendant, barrels of this kind were ordered to be shipped, this was a sufficient reception and acceptance to bind the defendant.</p> <p>A verdict was found for the plaintiffs, and the defendant alleged exceptions to the aforesaid rulings and instructions.</p>

Writ op entry to recover possession of a tract of land in Hardwick. The parties submitted the case to the court on the agreed statement of facts which follows : “ Both parties claim title to the demanded premises under Joseph Robinson. The demandant’s title is as follows : On the 8th of June 1842, Daniel Bacon commenced a suit against said Robinson, and attached his right in equity to redeem said premises, which then were and still are subject to a mortgage.

<p>When a plaintiff in a justice’s court duly files a bill of particulars, tn an action of general indebitatus assumpsit, and an appeal is taken from the justice’s judgment, and he transmits to the court of common pleas a copy of the record and of the papers filed in the case, the trial in that court, on the appeal, must be confined to the matter set forth in the bill of particulars, unless the plaintiff obtains leave to amend it.</p> <p>On the trial of an action, brought into the court of common pleas by appeal from a justice of the peace, parol evidence is not admissible to prove that a paper, which is sent up by the justice as a copy of one that was filed in the case, was so filed by the plaintiff as a bill of particulars: The question, whether it was filed as a bill of particulars, must be determined by the paper itself, or by the minute or filing thereon written, or by the justice’s certificate accompanying it.</p>

Trespass for breaking the plaintiff’s close in Hubbardston, and cutting and carrying away timber. Writ dated February 19th 1844. At the trial in the court of common pleas, before Merrick, J. it was admitted that Jason Chamberlain owned the locus in quo on the 11th of August 1836.

Assumpsit by the indorsee of the following note : “ Templeton, November 2d 1837. For value received, I promise to pay Luke L. Knight, or order, one hundred and fifty six dollars and eighty two cents, on demand, with interest. Asa Fessenden, for the assignees.” The defendants filed the following specification of defence : “ 1. They deny the execution of the note declared on. 2. They deny that the note was given for a good consideration. 3.

The judge of probate for this county passed a decree, on the first Tuesday of September 1S44, allowing to Hannah Adams, widow of James Adams, late of Barre, the sum of $500 out of the personal property of said James; she having waived the provision made for her in his last will, claimed dower in his estate, and had her dower therein set out to her. The executors of the will appealed from the said decree, and entered their appeal at the last April term of this court.

<p>This was a writ of error to reverse a judgment recovered by Seth Hapgood and Ephraim Hinds, executors of the last will of Hutchins Hapgood, at the court of common pleas, held in this county, in March 1842. The action, in which said judgment was rendered, was brought against the plaintiff m error to recover two tracts of land conveyed by him in mortgage. One of these tracts contained about 100 acres, situate in Hubbardston, which were originally mortgaged to the plaintiff in error by one Hunting, by deed dated June 29th 1825, conditioned for the payment of a note for $1000, and interest thereon. This mortgage the plaintiff in error transferred and assigned to said Hutchins, by deed dated September 3d 1825. The other tract contained about 50. acres, situate in Hubbardston, and was mortgaged to said Hutchins, by the plaintiff in error, by deed dated April 28th 1834, conditioned for the payment of a note for $500, and interest thereon. Judgment was rendered in said action, upon default of the plaintiff in error, that the said Hapgood and Hinds, executors as aforesaid, recover against him possession of both the tracts of land demanded, unless within two months from the day of said judgment, he, his heirs, executors or admin istrators, should pay unto the said Hapgood and Hinds, executors as aforesaid, or their assigns, the sum of $177T50, and interest, and costs of suit, taxed at $24-45; which said sum of $ 1771-50 was the whole amount due upon both of said mortgages.</p>

<p>Trespass for breaking and entering the plaintiff’s close in Sterling. The defendant stated, in a specification of defence, that the soil and freehold of the locus in quo was in the inhabitants of school district No. 2, in Sterling, and that the alleged trespass was an entry under their vote authorizing him to take possession for the district.</p> <p>At the trial in the court of common pleas, before Merrick, J. the plaintiff produced no evidence of title, except by possession. Witnesses testified that the plaintiff went into possession of the land in question in 1831, and continued to occupy it till the spring of 1842, when he planted it with corn; that soon 'after the corn had come up, the defendant entered upon the land and ploughed it; which was the trespass alleged in the plaintiff’s declaration.</p> <p>The defendant, to prove title in the inhabitants of school district No. 2, offered in evidence an office copy of a deed which is set forth in the margin,* made by Zachariah Harvey, purporting to convey the land in question, including also an adjoining tract of land for a burying ground. The defendant then called a, witness, who testified that there was formerly on the said land a school house, which belonged to a district called the Leg District, and which was removed therefrom about the year 1800; that said district was the same which was afterwards, and is now, called district No. 2; that the inhabitants of the district, soon after the school house was removed, voluntarily met, and built a wall in front of said land, upon the road, about ten feet farther from the road than a wall recently erected, in front of said land, by the plaintiff; that the land was leased at auction, in 1831, for the term of ten years; and that it was stated, at the time of so leasing it, that whoever bid it off was to have the privilege of moving the wall farther towards the road, if he pleased so to do; that after 1800, the land was used for cultivation, and that no house had since been placed upon it.</p> <p>The defendant then offered the records of the town of Sterling, for the years 1797, 1830, and 1834, to show that the inhabitants of that part of the town, where said land is situated, were established as school district No. 2. But the judge ruled that said records for the years 1797 and 1831 did not show that fact; but that said district was legally constituted, as shown by the records of 1834.</p> <p>The defendant then offered to prove, by witnesses, that the inhabitants residing in the vicinity of said land had, in fact, before 1834, associated as a school district, and had, as a district, assumed the ownership and management of said land. But the judge ruled that this evidence was inadmissible.</p> <p>The defendant then offered to put in the records of said alleged school district, prior to 1834, to show that said inhabitants, as a district, had assumed the ownership and management of said land. But the judge ruled that the books, purporting to be records of a school district prior to 1834 could not be used as evidence.</p> <p>The defendant then offered Samuel Brown as a witness, to prove that, in the spring of 1831, he (Brown) as agent of the district, leased said land at auction, for the term of ten years, to the plaintiff. But the judge ruled that the agency must be proved by the record, and as there was, at that time, no legal school district existing, the agency could not be proved; inasmuch as the books, offered as such, were inadmissible as records of a school district.</p> <p>The judge also ruled, that said school district No. 2, established in 1834, could not be regarded as the successor of the said alleged district which had no legal existence. And the judge further ruled that, upon the foregoing evidence, and the said evidence offered to be given, the said school district No. 2 derived no title whatever under said deed of Zachariah Harvey.</p> <p>A verdict was found for the plaintiff, and the defendant alleged exceptions to the several rulings aforesaid.</p>

<p>Under the Tiev. Sts. c. 109, a person who claims, by force of an assignment, the effects or credits in the hands of one who is summoned as trustee, may appear and maintain his right, although the party so summoned makes no mention of the assignment in his answer.</p> <p>The delivery, by a lessor to a third person, of a lease in which rent is reserved, to enable such person to receive the rent towards payment of a debt due to him from the *essor, and the agreement of the lessee, on receiving notice of such delivery and the purpose thereof, to account to such person for the rent, constitute an equitable assignment of the rent, so that the lessee is not liable therefor, on the trustee process, to another creditor of the lessor.</p>

<p>When a writ of execution, in a personal action, for a sum not exceeding seventy dollars, is directed, by the clerk, to the sheriff or his deputy, and the plaintiff's attorney, without fraud, but without authority from the clerk, adds a direction to the constables of a town, such addition does not avoid nor affect the execution, and a proper service thereof by one of those constables is valid.</p>

The plaintiffs alleged, in a bill in equity, that William Caldwell, whose legal settlement was in the town of Worcester, was committed to the house of correction in November 1839, and remained therein till May 1840; that he was poor and unable to pay the expense of keeping him there, and had no relations liable to maintain him; that the plaintiffs had paid said expense, as by law they were bound to do ; and that he still remained unable to pay.

<p>Writ of entry upon a mortgage given by the tenants to the demandant, dated January 18th 1841, to secure a promissory note for $300, payable in three years, with yearly interest. The tenants pleaded the general issue, and set forth, in a specification of defence, that since the commencement of this suit, Olive Cutting, having title to the mortgaged premises, entered upon the same and evicted the tenants, and that they held the same by her sufferance, and as her servants.</p> <p>It appeared, at the trial in the court of common pleas, before Merrick, J. that the said mortgage contained the usual covenants of warranty, and a clause providing that the mortgagors should retain possession of the mortgaged premises, till condition broken. It also appeared that only one year’s interest had been paid on the note which the mortgage was given to secure.</p> <p>The tenants offered to prove that five elevenths of said mortgaged premises, together with other real' estate, were conveyed.by John Temple and others, on the 16th of October 1835, to the said Olive Cutting, in trust for the sole and separate use of Mary B. Spofford, the female tenant; and that afterwards, on the 16th of January 1841, upon a partition of the premises so conveyed, the part thereof which is included in the demandant’s said mortgage was duly assigned to the said Olive, without prejudice to the original trust.</p> <p>The tenants further offered to prove, that at the time of making the said mortgage, as well as at the time of the commencement of this action, they were merely tenants at will of the said Olive, and that afterwards, on the 16th of December 1844, the said Olive entered upon the mortgaged premises, and that the tenants, since that time, had been tenants at sufferance, as set forth in their specification of defence.</p> <p>The judge ruled that this evidence was inadmissible, and a verdict was returned for the demandant. The tenants thereupon alleged exceptions.</p>

This was an action for breach of the covenant of warranty in a deed of the defendant conveying a tract of land to Elihu Pond, whose estate therein was assigned to the plaintiff under the insolvent law of 1838. The case was submitted to the com’t on an agreed statement containing the following facts: The defendant, on the 17th of April 1841, by his deed of that date, conveyed the land described in the plaintiff’s writ to Elihu Pond, for the consideration of $1300.

Assumpsit to recover $> 186-47. Trial in the court of common pleas, before Merrick, J. whose report of the case was as follows: On the 23d of May 1843, the parties to this action executed the following instrument: “ Whereas an action on the case, in favor of Amasa Carpenter of Woodstock, (Ct.) against Jacob Edwards, jr. of Southbridge, (Mass.) is now pending before the superior, court for the county of Windham and State of Connecticut, in which action the said Carpenter…

<p>This was a complaint, founded on the Rev. Sts. c. 116, in which the complainant prayed that a jury might be summoned and empannelled to assess the damages which he had sustained, within three years next before the institution of said complaint, by the flowing of his land (described) by means of the respondents’ mill dam. The complaint was dated June 15th 1844, and was filed in the office of the clerk of the court of common pleas on the 26th of said June. The question, whether the complainant could maintain his complaint, was submitted to the court upon the following facts agreed:</p> <p>In 1829, the respondents erected a dam across a stream of water, below the complainant’s land described in his complaint, for the purpose of working a mill constructed by them, whereby his land was overflowed and injured; and they have, ever since, to the time of the institution of said complaint, maintained said mill and dam, and continued to overflow and injure said land. On the 17th of June 1844, the complainant, by his deed of that date, duly executed, acknowledged and recorded, conveyed said land to Jasper Brown, who is now the owner thereof. In that deed there was no grant nor reservation of any claim against the respondents.</p>

Assumpsit to recover the expenses incurred hy the plaintiffs in supporting Lucretia Hatstat, a pauper, whose settlement was alleged to be in the town of Hardwick.

<p>An application for insurance against loss of a meeting-house and its fixtures by fire was made to a mutual fire insurance company that could not, by statute and its own bylaws, insure upon any building an amount exceeding three fourths of the value thereof 3 and in the application the value of the building was stated to be #4000; The company executed a policy, insuring, under the conditions and limitations expressed in its own by-laws and in the statute regulating mutual fire insurance companies, #3500 on the meeting-house and fixtures: The house was destroyed by fire, and the company paid #3000 to the assured, towards the loss. In a suit on the policy to recover the balance of #500, it was held, that the assured could not recover$ that the statement of the value of the house and fixtures, in the application for insurance, was conclusive on the assured, so that they could not be permitted to show that the property insured, at the time of the insurance, was of such a value that #3500 did not exceed three fourths thereof.</p> <p>In the trial of an action on a policy of insurance which is explicit as to the property insured, parol evidence is not admissible to show a mistake, and that it was the intention to insure other property.</p>

<p>On a petition for a writ of certiorari to quash the record of a conviction, the court will not examine the evidence given at the trial, unless it appears on the record that objections were then taken to its competency.</p> <p>A complaint made to a justice of the peace, charging u that S., on the 1st day of March 1845, and on divers days between that day and the day of exhibiting this complaint, at A. in the county of W., was a common railer and brawler, against the peace, &c., and contrary to the form tf the statute,” &c., is sufficient to sustain a conviction of S. by the justice.</p>

Petition for a writ of certiorari. ' This case was like that of Stratton v. The Commonwealth, (ante, 217,) except that it appeared from the record of the justice, that when the complaint was read to the petitioner, and he was asked, by the justice, “ whether he was guilty or not of the offence alleged against him in said complaint,” he “ refused to plead to said complaint, but fraudulently, wilfully and obstinately stood mute.” It also appeared from the remaining part of the…

<p>This was an action originally commenced before a justice of the peace, on the Rev. Sts. c. 104, <§> 2, to recover possession of premises alleged to be held by the defendant without right, and was carried into the court of common pleas.</p> <p>The report of the trial in that court, before Ward, J. was as follows: Caleb Burbank was the owner of said premises,</p> <p>on the 18th of January 1834, and on that day conveyed, by indenture, certain property, real and personal, to Amasa Wood, John Jacobs and Abraham G. Randall, “ to have and to hold the aforesaid estate, real and personal, to them the said Amasa, John and Abraham G., their heirs and assigns, upon trust, and for the benefit of the party of the third part,’ (creditors of said Burbank,) “as is hereinafter pointed out, to wit, the said Amasa, John and Abraham G. are to reduce said estate and property to money, as soon as conveniently can be done, and out of the proceeds, in the first place, to pay ” certain creditors of said Burbank the whole or a ratable part of their demands, according to the amount for which the said property should be sold. This conveyance included a parcel of land described as “ the lot whereon the cotton factory stands ; ” which lot, as the plaintiffs alleged, embraced the premises in question. The assignees immediately took possession of the said premises, and of the other property described in the indenture, and Jacobs, one of their number, died before the business of their trust was finished. After his death, the defendant occupied said premises, and paid rent, (about $26,) for three or six months, to Randall, who acted as agent of the surviving assignees. On the 22d of March 1844, Randall and Wood, as surviving assignees, conveyed said premises to P. Merrick, one of the plaintiffs, who on the same day conveyed one undivided half thereof to Benedict, the other plaintiff. On the 6th of April 1844, this process was commenced.</p> <p>There was evidence to show that the defendant, several days before the date of the process, received written notice of the abovementioned conveyances to the plaintiffs, and that he must quit the premises; but the notice was not given three months before the date of the process, nor was there any proof that rent was in arrear. The defendant had no written lease, nor did the proof show on what terms, or for what time, he held the premises, except as above appears.</p> <p>The defence rested on three grounds: 1st. That the premises named in the complaint, and which the defendant occupied, were not a part of the cotton factory lot, and that there - fore the plaintiffs had no title. 2d. That if the premises were part of that lot, yet by the death of Jacobs, one of the assignees, the power .of the surviving assignees to sell ceased; and that therefore the deed to Merrick was void. 3d. That even if the plaintiffs had a good title, the evidence showed that the defendant was tenant at will, and the plaintiffs were not entitled to recover, because they had not given him three months’ notice to quit, before commencing this process.</p> <p>Upon the first point there was much conflicting evidence ; and for the convenience of the parties, and in order to submit that question to the jury, the court ruled against the defendant upon the second and third points, and directed the jury, that if the said premises were known as the cotton factory lot, or were included in it and parcel of it, they should find for the plaintiffs ; otherwise, for the défendant. The jury found for the plaintiffs, and to these rulings and directions the defendant excepted.</p>

<p>Assumpsit for goods sold and delivered, and for money had and received. The plaintiff annexed to his declaration a specification of his demand, ill which he set forth that he claimed to recover the value of a horse, attached by the defendant, as a deputy sheriff, on a writ in favor of Daniel West against Edward Beals, and sold by the defendant on that writ; the action in which the horse was attached having been entered in court, and finally “ neither party ” entered therein.</p> <p>At the trial in the court of common pleas, before Wash-hum, J. the plaintiff introduced evidence that the horse in question was attached by the defendant on the writ sued out by West against Beals; that on the day after the attachment, Beals, who then owned the horse, mortgaged it, with othei property, to the plaintiff, and that the mortgage was duly recorded on the same day ; that the plaintiff, after the making of said mortgage, and before the sale of the horse by the defendant, and within three days from the time of the attachment of the horse, gave the defendant written notice of the mortgage; that the plaintiff had taken possession of the other property included in the mortgage, for condition broken; and that the said action of West against Beals was entered at the September term of the court of common pleas, in 1842, and was continued to the next December term, when “neither party ” was entered therein; that after the action of West against Beals was entered, the horse was appraised, according to the provisions of the Rev. Sts. c. 90, <§><§> 57-61, and was sold at public auction, by order of the defendant, for $56-50, to said West, and was delivered to him; and that the auctioneer received no money from West, and paid none to the defendant; that the plaintiff, in July 1843, before he commenced this action, but after “ neither party ” had been entered in the action of West against- Beals, demanded of the defendant the price for which the horse was sold, which the defendant refused and neglected to pay to him.</p> <p>No return was filed, in the action of West against Beals, showing that the defendant sold the horse on the writ in that action. Notice was given to the defendant to produce the return of his doings, in selling the horse, but he neglected and refused so to do.</p> <p>The plaintiff contended that the jury should be charged, on this state of the case, that if they believed the horse was attached by the defendant, on West’s writ against Beals, and that he sold it on that writ, by virtue of the statute regulating the sale of property on a writ, he was liable to the plaintiff, for the price of the horse so sold, deducting the expense of sale, without any further proof by the plaintiff that the defendant received anything from the sale. But the judge refused so to instruct the jury, and gave them the following (among other) instructions:</p> <p>That if the jury should be satisfied that the defendant proceeded according to the provisions of the statute authorizing sales upon mesne process, such sale would pass the property in the horse to the purchaser, and would be prima facie evidence that he sold for money : That the mere act of selling the horse at auction, if he did nothing more, and if no money or other thing was paid to the defendant or his agent, and if no appropriation or application of the proceeds of the sale was made for the defendant’s benefit, would not render, him liable in the present action, under the form of the declaration: That if the sale was made by the defendant, as an officer, under the aforesaid provisions of the statute, the presumption was, that he received money or a satisfactory equivalent for the horse, whereby he would be liable to the present action; and that, if the plaintiff made out this part of the case, the burden was upon the defendant to show that he merely made sale of the horse, and never received money, or any thing as an equivalent therefor. And to an inquiry by one of the jurors, the judge answered, that taking a note for the horse would render the defendant liable in this action.</p> <p>A verdict was returned for the defendant, and the plaintiff alleged exceptions to the foregoing instructions.</p>

<p>Assumpsit on the money counts, and for services performed by William Smith, as an attorney and counsellor, from June 1834 to December 1838. The action was commenced and entered by said Smith, who was afterwards declared a bankrupt ; and the present plaintiff, who was appointed assignee of said Smith, was permitted to prosecute the suit in his own name.</p> <p>At the trial in the court of common pleas, before Wash-burn, J. there was evidence that the services for which the suit was brought were performed by Smith, as charged; and an auditor to whom the charges were submitted reported a certain amount as having been proved before him.</p> <p>The defendant introduced evidence that Smith was nevei admitted as an attorney or counsellor of any of the courts of this Commonwealth ; that he was never authorized in writing to appear in any of said courts for the defendant, and that the defendant never personally nominated Smith, in open court, to appear for him as attorney in any of said courts.</p> <p>It was in evidence that Smith had been regularly admitted as attorney and counsellor of the highest court in New Hampshire, and also as attorney of the circuit court of the United States for this circuit, long before the time of performing the services sued for in this action, and that he had practised as an attorney and counsellor in the courts of this Commonwealth, from the year 1833 to the time of his last charge against the defendant, and that no objection had ever been made, during that time, to his appearing as attorney, by any of the courts of this Commonwealth, or by any party in court. No evidence was offered to show that the defendant did or did not know that said Smith was not an attorney of this Commonwealth.</p> <p>It appeared that while several of the actions, for attendance to which, as attorney, said Smith had charged the defendant, were pending, the defendant was at some time in court, consulting about said actions with said Smith; but it further appeared that a portion of the charges was for services in actions, during the pendency of which the defendant never was present in court.</p> <p>The judge ruled, that if the said services were charged at a reasonable price, the present plaintiff was entitled to recover. A verdict was found for the plaintiff, and the defendant alleged exceptions to the ruling of the court, both as to the defendant’s liability and as to the right of Ames, as assignee of Smith, to prosecute the action in his own name.</p>

<p>Trespass upon the case, under the Rev. Sts. c. 14, § 6b, against the administrator of Benjamin F. Vaxnum, late sheriff of Middlesex, for an alleged default of John Kimball, a deputy of said Varnum. The defendant pleaded the general issue, and gave notice of his intention to rely on the statute of limitations — Rev. Sts. c. 120, <§> 3. At the trial before Wilde, J. the plaintiff introduced evidence that, on the 18th of December 1833, he sued out a writ against Daniel Boyes, returnable at the March term of the court of common pleas, in 1834, and placed it, on the same day, in said Kimball’s hands for service ; that Kimball made return that he had attached thereon “ one horse, one sulky and harness, and ten thousand feet of boards, as the property of said Boyes; ” that the writ was duly entered, and that the plaintiff, at September term 1834, recovered judgment against Boyes for $73-03 damages, and $17-38 costs of suit; that execution was sued out and delivered to Kimball for service, within thirty days from the rendition of judgment, and that said Kimball’s return thereon was, that he, by virtue thereof, seized eight thousand feet of boards, and two and a half thousand feet of joists, and sold the same for the sum of $100-81, which was the amount of the execution and his fees and expenses, and that he therefore returned the execution fully satisfied; that the plaintiff demanded payment of Kimball, within four years before the commencement of this action, and that Kimball died insolvent, without paying the plaintiff.</p> <p>The defendant then gave in evidence a duly recorded mortgage from said Boyes to Thomas Nesmith, dated December 26th 1833, of 50,000 feet of lumber, consisting of boards, planks and joists, lying at the head of Pawtucket Canal, in Lowell, to secure payment of three notes of Boyes, amounting to $385-25 ; also an assignment of said mortgage to Cyril Coburn, dated March 5th 1834, and one of the notes secured by said mortgage, on which the sum of $200 was due, indorsed by said Nesmith to said Coburn.</p> <p>Thomas Nesmith was called as a witness by the plaintiff, and testified, that when the aforesaid mortgage was given to him, the lumber was in one pile, and that Boyes had no other lumber; that the witness knew, before the mortgage was given, that the lumber had been attached, and that a notice to that effect had been posted on the pile.</p> <p>Cyril Coburn testified, that on the 18th of February 1834 he made a contract with Boyes, Isaac Lovejoy and W. G. Lovejoy, to build a block of houses for him : that he found there was a difficulty about getting some of said lumber, on account of the mortgage to Nesmith, and therefore he purchased that mortgage, and directed Boyes to remove the lumber for him, and that it was removed to two different places in Lowell; that afterwards, on finding that Kimball was about to sell part of the lumber on execution, he objected and ordered a suit to be commenced against him for trespass ; that the lumber which was sold by Kimball on the execution against Boyes was a part of the lumber included in the mortgage ; and that, when he purchased the mortgage, the lumber lay in one pile. On cross-examination, this witness stated that Boyes and the Lovejoys were to furnish lumber for the block to be built by them, and that he took the assignment of the mortgage to enable them to complete then-contract by using the lumber; and that he knew, before he took the assignment, that the attachment had been 'made.</p> <p>Daniel Boyes testified that the Lovejoys employed one Newhall to remove the lumber, after Coburn directed it to be removed; that Kimball’s permission to have it removed was first obtained; and that I. Lovejoy receipted for the boards that were attached. He also testified that one Conner had about 1000 feet of the lumber, but could not recollect whether he took it before or after it was removed by NeAvhall.</p> <p>Jonathan Bowers testified that, while Boyes’s lumber lay at the Pawtucket Canal, it was attached by Kimball, who appointed the witness to be keeper thereof; that he was about the lumber yard, more or less, every day, and that his counting room was in sight of the lumber; that, in the spring of 1834, Kimball directed the witness to permit the lumber to be removed, and that when it was removed, there were from forty to fifty thousand feet of it; that a notice of the attachment was posted at the end of the boards, about the middle of the pile, and that there was nothing in the notice to indicate that a part of the boards, and not the whole, was attached; that Kimball told him the pile was attached, and desired him to take care of it.</p> <p>Isaac Lovejoy testified that he gave a receipt to Kimball, in the summer of 1834, for 10,000 feet of boards attached on the plaintiff’s writ against Boyes; that he considered the lumber unsafe at the" eanal, and removed it in August or September 1834; that Kimball thought it best to have it removed ; and that the receipt had been given up, and could not be found.</p> <p>Upon this evidence, which was uncontradicted, the judge ruled that, in this action, the attachment made in the original suit against Boyes must be taken as valid, and the lien acquired thereby as subsisting in full force until the seizure upon the execution issued in that suit. A verdict was thereupon taken for the plaintiff, by consent, for the amount of the execution, with interest, subject to the opinion of the whole court upon the correctness of that ruling.</p>

<p>Trespass for an assault and battery alleged to have been committed on the female plaintiff. The defendant pleaded the general issue, and filed the “ following specification of the grounds of his defence : 1. Assault by wife of said William. And 2. Self defence. 3. Defence of his property, being tenants in common. 4. Tenants in common, and, as such, defendant acted in- defence of the property.”</p> <p>At the trial in the court of common pleas, in which the action was commenced, the plaintiffs admitted that they and the defendant were tenants in common of a farm in Chelmsford, upon which the alleged trespass was committed.</p> <p>The evidence tended to show that while the defendant was gathering apples, from a tree on the farm, into a basket of his own, the female plaintiff went to him and was about to overturn the basket of apples, and that thereupon the alleged assault and battery were committed by the defendant. A verdict was returned for the plaintiffs, for twelve dollars damage, and they moved for full costs. Washburn, J. before whom the trial was had, overruled the motion, ana directed that judgment should be entered, for costs, for nc more than one quarter part of said damages. The plaintiffs thereupon alleged exceptions.</p>

This was an action to recover damages for alleged breaches of covenants contained in a deed of bargain and sale in the usual form, made by the defendants to the plaintiff, on the 11th of September 1841. The declaration alleged a breach of the covenant* of seizin, as to a part of the land described in the deed, and a breach of the covenant against incumbrances, by reason of a right of way over another part of the land.

<p>An indictment against the defendant alleged that he, on the 25th of June 1845, at Charlestown, “ had in his custody and possession a certain piece of false and counterfeit coin, counterfeited in the likeness and similitude of the good and legal silver coin, current within said Commonwealth by the laws and usages thereof, called a dollar, with intent then and there to pass the same as true; he the said Stearns then and there well knowing the same to be false and counterfeit,’ &c.</p> <p>At the trial in the court of common pleas, before Colby, J. the only evidence offered against the defendant was his possession or passing of coin counterfeited in the similitude of Mexican dollars. The defendant objected to the admission of such evidence, on the ground that it varied from the allegation in the indictment, which, as he contended, imported, ex vi termini, an American dollar. This objection was overruled.</p> <p>In order to show the defendant’s guilty knowledge, evidence was offered of his other antecedent acts of passing similar coins, which were the subject of other indictments then pending. The defendant objected to the admission of this evidence ; but the objection was overruled and the evidence received.</p> <p>The jury found the defendant guilty, and he alleged ei ceptions to said rulings.</p> <p>The defendant, after the case came into this court, filed a motion in arrest of judgment ; 1st, because no sufficient vharge of an offence was contained in the indictment, inasmuch as the term “ dollar,” therein used, may denote a coin ■ he counterfeiting whereof is not criminal by the laws of vhis Commonwealth; and 2d because, if said term “ dollar ” •nay apply to all the coins current by law or usage in this Commonwealth, and bearing that name, then the charge in '.he indictment is too uncertain, as it does not specify what 'Wxription of dollar, in particular, is intended.</p>

<p>A shopkeeper is liable criminally for an unlawful sale of spiritous liquor in his shop, made with his assent, by a servant or agent employed in his business : But an unlawful sale by the servant or agent is only prirnA facie evidence of the assent thereto by the shopkeeper, and of his liability to punishment therefor.</p>

<p>tis the duty of the court to give instructions to the jury on all questions of law which arise in a cause tried by them $ and it is the duty of the jury to receive the law from the court, and to conform their judgment and decision to such instructions, in applying the law to the facts to be found by them,: To this duty jurors are bound by a strong social and moral obligation, enforced by the sanction of an oath, to the same extent and in the same manner as they are conscientiously bound to decide all questions of fact acccording to the evidence.</p> <p>But, in a criminal case, a defendant has a right, in Massachusetts, by himself or his counsel, to address the jury, under the general superintendence of the court, upon such questions of law as come within the issue to be tried.</p>

<p>A wife who keeps her husband's accounts is a competent witness for him, in a suit in which he introduces his book of original entries, to testify that she made the entries, by his direction and in his presence: And after she has so testified, he may be permitted to testify as to the times when the entries were made, and that the charges contained in them are just and true.</p>

This was an action of replevin, in which the writ commanded the officer “ to replevy an open buggy wagon, of the value of more than twenty dollars,” and deliver it to the plaintiff, “ provided that he, the said Poyen, shall give bond to the said M’Neill, with sufficient surety or sureties, in the sum of dollars, being twice the value of the said goods and chattels, to prosecute,” &c. The officer took a replevin bond, with two sureties, and replevied the wagon.

<p>A suit on the Rev. Sts. c. 104, commenced by a tenant at will against a person holding premises without right, abates by the death of the plaintiff, and cannot be prosecuted by his executor.</p>

<p>A uemise for years of premises before demised at will is a termination of the tenancy at will, and the tenant is thenceforth tenant by sufferance, and not entitled to notice to quit.</p> <p>Rent, payable quarterly by A., a tenant at will, was in arrear, and the landlord, for that reason, gave him written notice to quit, and leased the premises to B. for years. Held, that B. might maintain an action, on the Rev. Sts. c. 104, against A., for possession ot the premises, without first making an entry or giving further notice to quit 3 although A. had no notice that the landlord had leased the premises to B.</p>

The defendants were sued in an action of assumpsit, as partners doing business at Malden, under the firm of “ B. W. Dodge,” to recover two promissory notes, amounting to $914-63, given to the plaintiffs by said Dodge, and also for the sum of $563-93, for goods.

<p>If a deceased debtor, whose estate has been represented to be insolvent, owed partnership and private debts, they are both alike to be paid ratably out of the common fund derived from his partnership and private property: And this rule applies when the surviving partner" proves a claim against the deceased for money taken by him from the partnership fund, beyond his just share; although the surviving partner is insolvent, and his estate has been assigned under St. 1838, c. 163, and the partnership debts have been proved against his estate as well as against the estate of the deceased; and although the effect of the rule is to prevent the payment of the deceased partners separate debts from his separate property, and also to leave the partnership debts unsatisfied.</p>

This was an action of debt, brought for the benefit of William Bean, on a bond in the penal sum of $500, executed on the 30th of April 1841, by Joseph Parker, as principal, and Bethuel T. Cross and Charles Offutt, as sureties, the condition of which was, that said Parker should faithfully perform all the duties of the office of constable of the city of Lowell.

Trespass for taking and carrying away divers goods of the plaintiff, alleged to be of the value of $115.

Assumpsit for goods sold and delivered. The action was commenced, and the defendant’s real estate attached, on the 19th of November 1842. At the trial in the court of common pleas, before Wash-burn, J. the defendant gave in evidence his discharge, under the United States bankrupt law of 1841, purporting to discharge him from all debts due from him on the 17th of January 1843.

Assumpsit for money paid. Writ dated May 27th 1844. At the trial in the court of common pleas, before Wells, C. J. the plaintiff introduced evidence that, on the 20th of February 1843, he signed a note of $100, as surety for the defendant, payable to the Lowell Bank; and that, on the 7th day of October 1843 — said note not being wholly paid — he paid $35, the balance due thereon.

Assumpsit to recover $64-80, the amount of a tax assessed upon the plaintiffs and paid by them to the defendants.

Debt on a bond given by the defendant to the judge of probate.

<p>Bill in equity to redeem a small tract of land in Little-ton. At a former term, (see 8 Met. 153-166,) it appeared that the plaintiff, in November 1826, mortgaged the land to Pliny Blanchard, who assigned the mortgage, in August 1830, to the trustees of the United Society in Harvard; that said trustees, (as appeared by the acknowledgment of the plaintiff, expressed in writing, under his hand, on the mortgage deed,) on the 3d of April 1834, made open and peaceable entry upon the land, in the presence of two witnesses, with the consent of the plaintiff, for the purpose of foreclosing the plaintiff’s right of redemption; that they (as they averred) held peaceable possession of the land for the purpose aforesaid, for the space of three years next ensuing, and until the 30th of April 1840, whereby the plaintiff’s said right was forever foreclosed ; and that they, on the day last mentioned, conveyed the land to the defendant, to have and to hold the same to him and his heirs and assigns forever.</p> <p>After the decision of several questions first raised on the bill, answer and agreed facts, the case was continued, to ascertain whether the said trustees had such a continued possession of the mortgaged premises as is required by statute in order to perfect a foreclosure; and also, if the mortgage was foreclosed, to give the parties an opportunity to prove facts in regard to payments made by the plaintiff after the foreclosure ; to ascertain the value of the mortgaged premises, and the amount due at the time of foreclosure ; so as to enable the court to judge whether the facts furnished evidence of an agreement, between the said trustees and the plaintiff, to open the foreclosure and give the plaintiff further time to redeem, with liberty to add new parties to the bill.</p> <p>Evidence was taken by both parties ; but as the result of that evidence is stated in the opinion of the court, it is unnecessary to set it forth at large. The following is all that need be here inserted :</p> <p>Jonathan Chandler, one of the trustees of the United Society in Harvard, testified that he, as trustee, received of the plaintiff, after April 3d 1837, $10 “as interest on the note secured by mortgage, for which no receipt was given.”</p> <p>Two other witnesses testified that the plaintiff, shortly after the 3d of April 1837, applied to Simon T. Atherton, one of said trustees, and stated to him that the time of redemption had expired, but that he wished a month’s extension, and said he thought, in that time, he could get the money and satisfy the demand; that Atherton told him, if he would bring the money within one month, he (Atherton) would do no more about it; otherwise, he should hold the premises agreeably to the writing on the back of the mortgage ; and that the plaintiff, in about a month, came again to Atherton, and wished a further extension until August.</p>

<p>Four persons formed a partnership in the ice business under the name of G., H. & Co., and transacted their business in Charlestown, (Mass.): The' same persons and C. afterwards, by written articles, formed a partnership, under the name of C. & Co., in the business of shipping ice to Mobile, (Alab.) and selling it there: By these articles, G., H. & Co. were to ship ice to Mobile, consigned to C. & Co. and C. was to devote his personal attention to the sale of the ice there, and C. & Co, were to pay, from the proceeds of the sales, to G., H. & Co., a certain pnce, per ton, foi the ice shipped at Charlestown, and also to pay rent for an ice house at Mobile, and all freights and expenses on the ice shipped, and all expenses of discharging and transporting it from the vessels to the ice house, and all other expenses of taking care of and selling it; and the proceeds of the sales, after deducting all said expenses, were to be divided equally between C. and the firm of G., H. & Co.: R. made an agreemen* with the firm of G., H. & Co. to transport a cargo of ice for them, from Charlestown to Mobile, but did not fulfil his agreement 5 and the four members composing that firm brought an action against him to recover damages for breach of that agreement Held, that the action could not be maintained without joining C. as a plaintiff Shaw, C. J. dissenting.</p>

This was an action of assumpsit, founded on the Rev. Sts. c. 116, 24, and commenced on the 29th of August 1842, to recover of the defendant, as the owner and occupant of a mill dam and privileges in Attleborough, known by the name of the City Factory, the annual compensation formerly awarded to the plaintiff, by a jury duly empannelled for that purpose, against Daniel Reed and Ira Newman, then owners and occupants of said mill dam and privileges, for flowing the plaintiff’s…

<p>This was an action on the Rev. Sts. c. 25, § 22, for an injury alleged to have been received by the plaintiff, by reason of a defect in a highway, in the town of Swansey, which said town was by law obliged to repair.</p> <p>At the trial in the court of common pleas, before Wells, G. J. it appeared that the injury set forth in the plaintiff’s declaration was sustained by him, as therein alleged, on the 11th of June 1843, being the Lord’s day, in the forenoon of said day, as he was travelling from Warren, (R. I.) where he resided, to Fall River, on business connected with the conduct of a cause then pending in the district court of the United States in Rhode Island. The defendants admitted that they were by law bound to keep said highway in repair.</p> <p>The judge instructed the jury, that the plaintiff would not be entitled to recover, unless he satisfied them that his travelling on the Lord’s day was from necessity or for purposes of charity; that it being admitted that his business was of a secular character, the burden was upon him to show the necessity of transacting this business on the Lord’s day.</p> <p>The jury found a verdict for the defendants, and the plaintiff alleged exceptions to the judge’s instructions.</p>

Writ of entry to recover a tract of land in Westport, known as the Allen lot. Trial, on the issue of nul disseizin, before Shaw, C. J. whose report was as follows : The demandant claimed title under Paul Cuffee, his grandfather, who died seized of the estate, and who made a will, which, after his decease in.1817, was duly proved and allowed.

<p>An owner of land made an excavation therein, within a foot or two of a public street, and used no precaution against the danger of falling into it: A person passing in tne night time, went over the line of the street, fell into the excavation and wae injured. Held, that the owner of the land was not liable to an action for the injury thus caused.</p>

<p>Assumpsit to recover damages on a bill of exchange, the principal and interest of which had been paid. Trial before Shaw, C. J. whose report thereof was as follows :</p> <p>The plaintiffs were G. H. Bowen and F. D. Atherton, resident in Valparaiso, in South America, and E. F. Loring, resident in Boston, together constituting a partnership and house of trade, doing business in Valparaiso, The defendant was agent and one of the owners of the whaling vessel Draco, out of New Bedford, of which Peleg Ray was master. The bill was drawn on the defendant by Ray, at Talcuahana, on the 19th of May 1842, in favor of E. F. Loring & Co. or order, for the sum of $1802, purporting to be for value received by Ray for the disbursements of the Draco under his command, and was remitted to Loring, the partner residing in Boston. Under his direction it was presented to the defendant for acceptance on the 21st of September 1842, and for payment on the 14th of October following, and was in both cases protested.</p> <p>The case was opened for the plaintiffs as presenting the question whether the master of a whaling vessel abroad, by virtue of his office, and without special authority, has pe ,vrr to draw bills on his owners for supplies furnished to such vessel, and whether the owners, on whom such bills are drawn, without actual acceptance, are bound as acceptors, so as to be chargeable for damages as on foreign bills.</p> <p>It appeared that the defendant was one of the principal owners of the Draco; that he acted as agent for the other owners in fitting her out and during her voyage; but that, about the time of her return, he relinquished the agency and settled the voyage.</p> <p>As the non-joinder of the owners, as defendants, was not pleaded in abatement, it was ruled that, if the owners were liable as such, the suit might proceed against the defendant alone.</p> <p>The plaintiffs, after reading the bill of exchange to the jury, offered evidence to prove the usage of masters and owners of whale ships. This evidence, though objected to by the defendant, was admitted. (Here the judge stated the evidence in full; but the decision of the cause renders it unnecessary to report it.)</p> <p>It appeared in evidence that the master of the Draco had given to the plaintiffs, as collateral security, a bill of lading for 3604 gallons of oil, which bill accompanied the bill of exchange, and was presented with it, when the latter was presented for acceptance; and that the plaintiffs demanded the oil, after the arrival of the vessel, but never obtained possession of it.</p> <p>Isaiah F. Terry testified that he was appointed agent of the Draco, on her return in June 1843: That he was directed by the owners to pay all the drafts and debts against the vessel, and that he had funds from the sale of the cargo: That he was called on by the plaintiffs’ counsel, for payment of this bill, and that he tendered to the counsel, and afterwards to Loring, one of the plaintiffs, in Boston, the amount of the bill, with interest and costs of protest, which was not accepted: [The witness also testified to offers of settlement made by him, and by the plaintiffs and their counsel, at different times, and to conversation when the receipt hereinafter set forth was given—which is rendered immaterial by the decision of the cause.] And that he paid the said amount with interest and costs of protest, on the 23d of September 1843, to the plaintiffs’ counsel, and took a receipt, of that date, of the following tenor: “ I. F. Terry, Esq. of Fairhaven, has this day tendered to me, as attorney of E. F. Loring & Co., the sum of nineteen hundred and ten dollars and fifty five cents, in full of all claims which the said Loring & Co. have against the barque Draco, of Fairhaven, of which he is agent. I have received the above amount of money of him.</p> <p>H. G. O. Colby, attorney of E. F. Loring & Co.”</p> <p>It was admitted that, previously to this settlement, a process in rem, in the admiralty, had been instituted by the plaintiffs against the barque Draco, for the same supplies for which the said bill was drawn, in which process judgment had been rendered against the plaintiffs. [There was also testimony, not material to be stated, as to the conversation, at the time the said payment was made, concerning the extent of the satisfaction thereby intended to be given and received.]</p> <p>No evidence was offered to show that the plaintiffs had been called on to pay damages to any former holder of the bill.</p> <p>The defendant insisted that, upon this evidence, the plaintiffs had no legal claim to damages on the bill. By consent, the case was withdrawn from the jury, to be submitted to the whole court, with authority to draw such inferences of fact from the evidence, as a jury could properly do, and to enter judgment on nonsuit or default, as in their judgment the merits of the case require.</p>

<p>A by-law of a town, made under Rev. Sts. c. 58, § 10, concerning the licensing, regulat ing and restraining of dogs going at large within the town, will be construed to apply only to dogs owned or kept in the town, although, in its terms, it applies to11 any person permitting his dog to go at large within the town 3" and if it is otherwise valid, it may be enforced against the owner or keeper of a dog within the town.</p> <p>The same section in a by-law of a town imposed a penalty of $10 on any person permitting his dog to go at large in the town, unless the dog should be licensed to go at large, and should wear a collar with the name of the owner or keeper, and the wore “ licensed ” distinctly marked thereon; and the further penalty of #10, if said dog should wear a collar without license. Held, that although the latter part of this section might be repugnant to the Rev. Sts. c.58, § 12, and therefore void, yet that the former part was valid, and that the penalty thereby imposed was recoverable of a person who permitted his dog to go at large without being licensed.</p> <p>The penalties, imposed by the by-laws of the town of New Bedford in relation to dogs may be recovered by complaint before the police court of that town.</p> <p>A dog is u going at large n in a town, if he be loose and following the person who has charge of him, through the streets of the town, at such a distance that he cannot exercise a control over the dog, which will prevent his doing mischief.</p>

<p>Assumpsit on a promissory note, dated February 29th 1838, and attested by a subscribing witness, by which the defendant promised the plaintiff to pay him, or order, $48-50 on demand, with interest. There was also a count for goods sold and delivered. The action was commenced before a justice of the peace on the 25th of July 1843, and was tried in the court of common pleas, before Cushing, J. on appeal, at the last April term. Infancy and the statute of limitations were relied on in defence.</p> <p>There was evidence at the trial, that the defendant was only eighteen years old when the note in suit was given by nim. The plaintiff was then permitted to show that the note was given for necessaries. To prove this fact, he introduced as a witness J. H. Harlow, who testified that he kept the plaintiff’s books when the note was given, and that he attested the note; that the note was given to balance an account standing on the plaintiff’s books against the defendant. The witness then took the plaintiff’s day book and leger, but not his book of original entries, and turned to the account, and stated to the jury the several articles of which the account was composed. The witness did not recollect the delivery of but one of the articles, though he was in the slion of the plaintiff at the dates of charges. The defend • ant objected to this use of the books, but the objection was overruled.</p> <p>The defendant’s counsel contended that the action could not be maintained on this evidence, 1st, because, the books were improperly admitted; 2d, because the testimony of Hailow was incompetent; 3d, because the articles were not necessaries ; and 4th, because the account for which the note was given was barred by the statute of limitations.</p> <p>The judge instructed the jury, that the evidence was competent, if believed, to show the items for which the note was given ; and that if they believed the articles, or any part of them, to be necessaries, they could find so much of the note due as the necessaries amounted to ; for if the articles were necessaries, and the note was given in payment for them, it was a valid contract, and the plaintiff could recover, to the amount of the necessaries, on the note.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions to the judge’s instructions.</p>

Assumpsit on a promissory note for $256-64, given by the defendant to the plaintiffs on the 23d of June 1838, payable in six months, with interest. At the trial in the court of common pleas, before Ward, J. the defendant relied on a discharge under the act for the relief of insolvent debtors ” — St. 1838, c. 163 — granted to him by a master in chancery, on the 24th of March 1844, in the form prescribed by 7 of that act.

This was a petition for partition of several tracts of land in Middleborough and Rochester.

Assumpsit to recover the freight of fifty drums of codfish shipped at Baltimore, April 6th 1840, on board the schooner Susan, whereof Stephen Ellis, jr. was master. The case was submitted to the court on the statement of facts which follows: “ The plaintiffs were the owners of the schooner Susan.

Writ of entry to recover possession of about thirty acres of land in Middleborough. The new trial, which was granted at a former term, (see 8 Met. 355-365,) was had oefore Dewey, J. whose report thereof was as follows : The demandant claimed, first, as heir of Caleb Thomas, and secondly, as heir of Elijah Thomas. The demanded estate passed to Caleb Thomas by a deed from Elijah Thomas, dated August 28th 1817, and recorded May 13th 1818.

<p>Trespass for an assault and battery, in forcibly ejecting the plaintiff from a meeting-house in North Bridgewater. The defendant justified on the ground that he had the control and management of the house; that the plaintiff was a tres passer in the house; and that the defendant used no more force than was necessary to remove the plaintiff. The trial was in the court of common pleas, before Ward, J. whose report thereof was as follows :</p> <p>The defendant introduced evidence to show that, on the 15th of November 1825, Joseph S. Packard, by deed of that date, conveyed the land on which said house stands to himself, the defendant, and twenty four others, for the consideration of $175-47, describing the grantees as persons “ who have associated together, and have entered into a contract, as proprietors, for the purpose of building and erecting on said lot a meeting-house for the public worship of God. To have and to hold said lot to the said proprietors, and to their heirs and assigns, and to each and every person who may hereafter become the lawful owner and proprietor of a pew in said house to be built and erected thereon, and which may and shall afterwards be rebuilt thereon by said proprietors and their successors, to the use and behoof of said proprietors, for the said purpose, and of each and every lawful owner and proprietor of a pew or pews in the meeting-house to be built and rebuilt on said lot, forever.” He also introduced evidence that said house was subsequently built, and that said persons organized themselves as a body corporate, under the statutes of the Commonwealth, by the name of the Proprietors of the Second Congregational Meeting-house in North Bridgewater. And he offered in evidence the records of said proprietors, to prove their organization. The plaintiff objected to this evidence, on the ground that the grantees under Packard’s deed were not such proprietors as were empowered by St. 1783, c. 39, or by any subsequent statute, to organize themselves as a body corporate. But the court ruled otherwise.</p> <p>The defendant then offered evidence that the notice for the meeting of the proprietors, on the 22d of July 1837, was published in a newspaper printed in Plymouth, according to law; and the said records were then admitted for the purpose of enabling the defendant to show an organization of said proprietors prior to the 14th of July 1844. The plaintiff objected to these records, as incompetent for want of sufficient service and return of the warrant and notices of the meeting, and because, upon the face of all the records, which are to be referred to as in the case, there had been no organization of said grantees. But the court overruled the objection.</p> <p>The defendant then showed a vote of said proprietors, by which, on the 16th of March 1839, he was chosen one of a proprietors’ committee of three, under said organization. He then offered evidence tending to show that a majority of said committee authorized him to take charge of said house, and that by virtue of said authority, or in his capacity as one of said committee, he had charge of the house on the day of the assault. To this evidence the plaintiff objected, but the court admitted it.</p> <p>The defendant gave in evidence a power of attorney, dated August 19th 1826, executed by Micha Packard and twenty seven others, who recited therein that they were seized in fee simple of certain shares and parts of shares, each in his own right, in the new meeting-house in North Bridgewater, which the defendant built for them and himself, and appointing P. Crocker, D. Cobb and J. Battles their attorneys, with authority to lease or sell the pews in said house, or the constituents’ shares or parts of shares, to such persons, and for such term of time as they should think proper, &c. and to seal, execute and deliver such deeds of conveyances, with such clauses, covenants and agreements as they should think fit; and also authorizing and directing their said attorneys, out of the moneys which they should receive from time to time, for the rents and sales of the said pews, to pay over to each proprietor or owner of a share, shares, or part of a share, such sum or sums of money as should be the amount which they had paid to the defendant for building the said share, shares, or part of a share in said house, &c. The last paragraph of said instrument was as follows: “ The rest and residue of the moneys that may be received, from time to time, after the payments are made to the proprietors or owners of the house, as aforesaid, we do hereby authorize and direct our said attorneys to pay the same over to the treasurer of the Second Congregational Society in North Bridgewater, to be appropriated to procure preaching for said society,‘•by the committee of said society, or such special committee as may be appointed for that purpose under the direction of said society.”</p> <p>The defendant also gave in evidence an order of the supreme judicial court, passed at May term 1843, by which on the dismissal of a bill in equity that had been brought against the defendant by the Second Congregational Society hereinafter mentioned, the key of said meeting-house which had been ordered from the defendant into the hands of a receiver, on the filing of the bill, had been redelivered to him ; said bill having been dismissed for want of prosecution ; and that since that time he had kept the key and had the sole control, and that the society, after that time, had not been permitted to use the house.</p> <p>The plaintiff then showed that the Second Congregational Society in North Bridgewater was incorporated by an act of the legislature June 18th 1825 ; that all the grantees in said Packard’s deed, and some others, were named as corporators in said act; that said society was organized under said act, August 15th 1825; that the plaintiff was chosen the first clerk, and had remained in said office ever since ; and that said society had annually chosen their officers. He also gave in evidence two papers as building contracts, signed by the defendant who was a house carpenter, which are in the case,* and are signed by many others; and also referred to said power of attorney, as all tending to show that said house was built for the use of said society.</p> <p>The plaintiff showed that, in April 1844, he was duly elected one of the prudential committee of said society, one of whom is a grantee under said deed, and that said society had ordained a pastor, and had used said house as their own for twelve or fifteen years after it was built, and claimed to have control of said house and land, and of the twenty one pews in said house which remained unsold in 1826, after a sufficient number of said pews had been sold, by the attorneys under said power, to defray the expense of building said house ; that the net proceeds of said twenty one pews, obtained by letting them, were paid to said society, and that the incorporated proprietors had assumed the possession of the house before the day of the assault; that on the 9th of July 1844, said society, of which he was clerk, directed the prudential committee aforesaid, of whom the plaintiff was one, to enter into said meeting-house and affix labels to said twenty one pews, as the society’s property ; and that he and one more of said committee entered by virtue of this vote, and was in the act of affixing said labels with paste, when the defendant entered and ejected him.</p> <p>The plaintiff also proved, that on the 17th of September 1832, May 18th 1835, and September 25th 1841, said society voted to label said twenty one pews as their property, which had accordingly been done; that at the supreme judicial court in this county, in 1837, the said society, in an action of trespass quare clausum, recovered judgment against two defendants, who entered on a part of said land conveyed by said Packard, under a license from the defendant; that said society had complained of similar acts of the defendant ever since ; that said society had charge of the dedication of said meeting-house built after the execution of said two contracts signed by the defendant and others, which are in the case ; and that said society, during a considerable part of 1842, hired a minister and worshipped in said house, as tenants of the receiver ; but he offered no evidence to show that, after the said decree of the supreme judicial court, said society had any control of the house.</p> <p>The plaintiff’s counsel hereupon contended that the plaintiff had a right to enter said meeting-house, and paste said labels upon said twenty one pews ; that said incorporated proprietors had not, by their committee, the control of said house and twenty one pews. But the court ruled, and instructed the jury, that the property in the house and land, upon this documentary evidence, was in the grantees of Packard’s deed, until the proprietors were organized as a corporation ; that after such organization, said incorporated proprietors had the control of said land and house; that the Second Congregational Society had never any legal title thereto; that while said society used the house, they were no more than tenants at will or licensees of the incorporated proprietors, and had only a temporary, control; that the said proprietors, having terminated that tenancy or license by assuming the control of the house for some years, no person had a right to enter it by virtue of any vote of the society ; that if the plaintiff entered solely by virtue of said society’s vote, and against the will of the proprietors, he was a trespasser ; that if the defendant was then authorized by the proprietors to manage and control the house, he might prevent the plaintiff from pasting said labels, and, after proper notice to him to depart, he might expel the plaintiff, provided he used no more force than was necessary.</p> <p>The j'ury returned a verdict for the defendant, and the plaintiff alleged exceptions, which were allowed, with liberty to either party to refer, on the argument upon the exceptions, to any of the documents given in evidence at the trial.</p>

<p>This was an indictment which alleged, in the first count, that the defendant, at Roxbury, on the 7th of May 1845, “ about the hour of nine in the night time of the same day, did attempt willfully and maliciously to set fire to and burn, in the night time, a certain dwelling-house there situate, of one Bernard Walmire, and in such attempt did then and there break and enter a certain out house, then and there situated, of the said Walmire, and within the curtilage of said dwelling-house, and did then and there procure and collect together certain shavings and combustible substances, and did then and there, in said out house, set fire to, kindle and burn said shavings and combustible substances, with the intent then and there to set fire to and burn, in the night time, the dwelling-house aforesaid, and towards the commission of such offence, but was then and there intercepted and prevented in the execution of the same.” The second count alleged that the defendant, at the time and place mentioned in the first count, attempted to set fire to and burn, in the night time, a certain shop of said Walmire, within the curtilage of his dwelling-house, and in such attempt broke and entered said shop, and there procured and collected shavings, &c. and set fire to, kindled and burned them in said shop, with intent, in the night time, to set fire to and burn said shop, but was intercepted and prevented. The third count was like the second, except that the word building was substituted for shop, and it was not alleged that said building was within the curtilage of said Walmire’s dwelling-house.</p> <p>At the trial in the court of common pleas, before Colby, J. the defendant objected that the indictment was bad for duplicity, and moved that it might be quashed. This motion was overruled.</p> <p>It appeared from the evidence, that Bernard Walmire and his son were joint lessees of the dwelling-house and shop. The defendant thereupon objected that this evidence did not sustain the allegation in the indictment. This objection was overruled.</p> <p>It also appeared from the evidence, that certain combustible materials were collected in a small shop, which stood within three or four feet of a shed that was connected with the dwelling-house; and that the wind was high on the night of the alleged attempt.</p> <p>The judge instructed the jury that, if they were satisfied that the defendant did the acts alleged in the indictment, they were authorized to infer that he intended to hum the dwelling-house. The jury returned a general verdict of guilty, and the defendant alleged exceptions to said rulings and instruction.</p>

<p>A parish treasurer who has accepted a draft on him, drawn by the standing committee, payable to A. or order, has no authority to bind the parish by accepting A/s draft on him, in favor of a third person, for part of the amount of the first draft, though the amount of the second draft is indorsed on the first, as part payment thereof.</p>

<p>In an action on a promissory note given by the defendant for a sum Awarded by three arbitrators, to be paid by him to the plaintiff, the defendant cannot deiend by showing that one of the arbitrators, upon the statement of the chairman, who drew up the award, that it was right, signed it without reading it or knowing its contents, and that it was for a larger sum than was agreed upon by the arbitrators, unless he also shows that the said arbitrator was induced by some false representation, fraud or misconduct to sign a different award from that which he intended.</p>

Debt on a judgment rendered by a justice of the peace, on the 14th of December 1844. The declaration averred that the plaintiff recovered judgment against the defendant by the name of S. F. Leonard. The action was commenced before a justice, and carried by appeal to the court of common pleas.

Assumpsit to recover compensation for the services of the plaintiff’s minor son.

<p>This was an action of trespass upon the case against an attorney for neglecting to defend an action brought against the plaintiff by F. A. Kingsbury, assignee of Richmond Torrey, which was entered at September term 1844, and defaulted at the following December term.</p> <p>At the trial in the court of common pleas before Colby, J. one ground of defence was, that the action of Kingsbury against the plaintiff could not have been successfully defended, and so, even if the defendant had been guilty of negligence, the plaintiff had not been damnified.</p> <p>It appeared that said action, brought by Kingsbury against the plaintiff, was trover for articles of household furniture, and that the plaintiff claimed said articles by virtue of a bill of sale made to him by Richmond Torrey, about a year prior to said Torrey’s application for the benefit of the insolvent law.</p> <p>The present defendant offered evidence to show that said bill of sale was fraudulent against creditors'; and this question was submitted to the jury, with instructions, that the burden of proof was on the defendant to show that the action of Kingsbury, assignee, against the present plaintiff, could not have been successfully defended; and, if that were proved, that the present defendant was entitled to a verdict in his favor.</p> <p>In the progress of the trial, the defendant produced the assignment, made by a master in chancery, to Kingsbury, in which was 'assigned all the property which said Torrey had on the 2d of April 1844, which was the day of his petition. The day of the first publication of notice that a warrant had issued against said Torrey was the 7th of said April.</p> <p>On the question of the negligence charged against the defendant in not defending the said action against the plaintiff, a witness called by the defendant testified that, when that action was reached in the order of the docket, (it having been marked for trial,) the defendant stated to the court that he had been employed before the September court to make defence to the action; that it had been continued; that he afterwards saw Salisbury, (the plaintiff,) and told him he must call upon him (the defendant) about the 1st of December, and make up a list of witnesses, and instruct him in a defence; that the plaintiff had not called, and that he had not since seen him ; that he (the defendant) had no means of defence, and no defence to make.</p> <p>The introduction of this testimony was objected to by the plaintiff’s counsel, but was allowed by the judge, who instructed the jury that it was not evidence of the truth of the facts stated, but was admitted to show the facts and circumstances which occurred at the time of the alleged neglect.</p> <p>On the question of the validity of the conveyance of the household furniture by Torrey to the plaintiff, the plaintiff’s counsel requested the judge to instruct the jury, that if they believed the bill of sale was a bona fide transfer of the property, so far as Salisbury, the plaintiff, was concerned, and that he was ignorant of any design, on Torrey’s part, to defraud his creditors, a previous demand was necessary to enable Kings-bury to maintain his action.</p> <p>The judge refused to give this instruction; but instructed the jury that the present defendant must prove, to their satisfaction, that the supposed sale was fraudulent, and that both Salisbury and Torrey concurred and united in the fraud; and that it was further necessary to prove that Salisbury had converted the furniture to his own use ; and that demand and refusal constituted one mode, but not the only mode, of proving such conversion.</p> <p>The jury found a verdict for the defendant, and the plaintiff alleged exceptions to the said rulings and instructions.</p>

Assumpsit to recover wages from May 2d to December 20th 1844, at the rate of eleven dollars per month. In the bill of particulars annexed to the plaintiff’s writ, credit was given to the defendant for §7-50, on account of three weeks’ sickness of the plaintiff, during which time he was unable to work. The defendant filed an account in set-off, in which he charged, among other things, for the board of the plaintiff.

<p>A marriage, valid where it is contracted, is valid in this State, if not incestuous by tno law of nature, or not made void by Rev. Sts. c. 75, § 6, although it would be void by the law of this State, if contracted here.</p> <p>The intermarriage of a man and his mother’s sister, though void by the law of this State, is not incestuous by the law of nature, and was not void by the law of England before the St. of 6 Wm. 4, c. 54, though it was voidable by process in the ecclesiastical court.</p> <p>A husband may maintain an action in his own name only, on a promissory note given to his wife during coverture.</p>

Indebitatus assumpsit for two fire engines sold and delivered. Writ dated July 11th 1844.

Oliver Comey and Jason Comey were summoned as trustees of the principal defendant, and the only question in the case was, whether they were chargeable as such.

This was an action of assumpsit, commenced in the court of common pleas, at the December term 1844. On the return day of the writ, Elias Richards and other persons, constituting and representing a minority of the ratable inhabitants of said alleged school district, applied to the court for leave to appear and defend the action; averring that they verily believed that they had a good and valid defence, and could substantiate the same.

The county commissioners, in 1844, laid out and established a town way in Medway, partly over land of Nathan Harding, and awarded $50 to him, as damages. They allowed three months to the owners of the land over which the way was established, to take off trees, &c. and to make fences, and ordered the road to be constructed by the town of Medway, within a year from the last of December 1844.

<p>Proprietors of a rail road, who transport goods over their road, and deposit them in their warehouse without charge, until the owner or consignee has a reasonable time to take them away, are not liable, as common carriers, for the loss of the goods from the warehouse, but are liable, as depositaries, only for want of ordinary care.</p>

Assumpsit on the receipt and promise set forth in the award hereinafter stated.

<p>.The St. of 1701, entitled u an act to prevent and make void clandestine and illegal pur* chases of lands from the Indians ” rendered void, as the foundation of title, all deeds made by Indians, without the license or approbation of the legislature, after the year 1633.</p> <p>A deed was made in December 1700, by three Indians, as principals, alleging themselves to be the only surviving heirs of the late sagamore of Agawam, in which deed they granted, sold, assigned, aliened, enfeoffed and confirmed unto the freeholders and in habitants of the town of Wenham, their heirs, successors and assigns forever, the In dian title to all the land within said town, with the privilege of all rivers, streams ponds, fishing and hunting 3 and two white men, as sureties, also executed the deed and covenanted with the inhabitants and freeholders of Wenham, who were then possessed of land in said town, in their own proper right, that the said Indians had good right to sell, &c., and that they should warrant and defend, &c. Held, that by the true construction of this deed, it was a mere release of any supposed right, equitable claim or interest of the Indians in the lands within the limits of Wenham 3 that it presupposed that these lands had been granted by the government to persons who were then seized under those grants 5 that it enured by way of release to the town, or to individuals, according to their respective grants under the government 5 and that it was not competent evidence to prove the seizin of the town, in its corporate capacity, of any specific parcel of land.</p>

<p>Writ op entry to foreclose a mortgage, dated December 7th 1838, to secure a note of the same date, given by the tenant to the demandant, for $1000 and interest, payable in three years. The case came before this court on the .following bill of exceptions, allowed by a judge of the court of common pleas :</p> <p>“ The tenant was defaulted. The demandant moved for a conditional judgment; and the only question between the parties was as to the amount of that judgment.</p> <p>“ It was admitted by the demandant, that the note and mortgage were given to him by the tenant as security for the payment for such goods as the demandant might sell to the tenant, after the date thereof; and it was also admitted that after said date, and before September 9th 1840, the demandant sold to the tenant divers lots of goods. On the day last named, the tenant executed a deed to the demandant of a portion of the mortgaged premises, with the usual covenants of warranty, &c. except that the covenant against incumbrances was followed by the words ‘ except a mortgage to said Rice; ’ and on the same day the demandant signed and delivered to the tenant a paper of which the following is a copy: ‘ Boston, September 9th 1840. I hereby agree to give up a mortgage deed now held by me for $1000, without interest from date, as soon as payment is made of two notes, amounting to four hundred and eight dollars, with interest. Geo. Rice.’ It was admitted that the mortgage deed referred to in said paper is the one upon which this suit is brought, and that the demandant then held, and now holds, two notes against the tenant, amounting together to the sum of $408, bearing interest; and that this sum was the amount due to the demandant for goods sold to the tenant before the date of said paper, not reckoning interest upon the items of the account.</p> <p>“ The demandant offered to show that the price of the goods delivered to the tenant by him bi-fore the date of said paper, with interest, amounted to more than the sum specified, and contended that he was entitled to a conditional judgment for such larger sum. But the presiding judge directed the conditional judgment to be entered for the amount of the two notes in said paper mentioned, with interest. To this ruling the demandant excepted.”</p>

The defendant, on the 6th of June 1845, conveyed to the plaintiff, in fee simple, by deed of warranty in the usual form, all the real estate which was devised to the defendant by his father, Isaac Dodge ; and this was an action to recover damages for the breach of the covenants in that deed.

Trespass for taking and carrying away a piece of cloth and trimmings. The case was submitted to the court on the following facts agreed: The property mentioned in the plaintiff’s writ belonged to the plaintiff, and was left by him at a tailor’s shop, to be made into a coat for the plaintiff, which was necessary for him; and the same was seized and sold by the defendant, a deputy sheriff, on an execution against the plaintiff.

<p>Assumpsit for money had and received. The case was submitted to the court on the following statement of facts * The town of Newburyport, at its annual meeting in March 1843, voted to raise the sum of $20,000 for town expenses for the current municipal year, of which sum $7000 was appropriated for the support of schools. This sum was assessed upon the polls and estates of the inhabitants, and collected and appropriated accordingly. At the same meeting, it was voted, to establish a female high school, with a male instructor and such assistants as might be necessary, and the selectmen were directed to purchase a site, and proceed to erect a building for the use of such school."</p> <p>At the adjourned meeting, held in April 1843, the selectmen were authorized, by vote of the town, to hire a sufficient sum of money to carry into effect the vote of the town to establish said school, purchase said site, &c.</p> <p>Pursuant to the above votes, the selectmen, in the same year, hired the sum of $6500 on interest, with which they purchased a site, and erected a building thereon for the purpose of said school, which was organized and put into operation in the autumn of that year, and has ever since continued in operation at the town’s expense, as a female high school, for the purpose of teaching book-keeping, algebra, geometry, history, rhetoric, mental, moral and natural philosophy, botany, the Latin and French languages, and other higher branches of knowledge than are taught in the grammár schools of the town.</p> <p>During the whole of the years 1843 and 1844, the town had and maintained, by taxes levied as herein stated, the following other separate and distinct schools ; viz. a high school for males, such as is mentioned in <§. 5 of the 23d chapter of the revised statutes; another English high school, four male grammar schools, six male primary schools, six female primary schools, and three female grammar schools.</p> <p>The town, at its annual meeting in March 1844, voted to raise the sum of $23-500 for the expenses of the town for the current municipal year, of which sum $6650 was appropriated to the support of all the schools aforesaid, and $850 for the incidental expenses of the school committee, $2000 for the payment of the interest accruing on the town debt, including the sum hired as aforesaid, and $2000 to the reduction of the town debt. The said sum voted was assessed upon the polls and estates of the inhabitants, and collected and appropriated accordingly.</p> <p>The town, during said years 1843 and 1844, contained more than 4000 inhabitants.</p> <p>The plaintiff is a citizen of the said town, and resided there in 1843 and 1844, and owned real and personal property there. In 1843, he was assessed, for his proportion of the money voted to be raised that year, the sum of $430-50, which he paid (except the sum of $31-50, which the assessors abated) to the collector, without making any protest. In 1844, the plaintiff was assessed, for his proportion of the money voted to be raised that year, the sum of $365-50, which sum, deducting $21-93, (discount made by vote of the town on payments made in thirty days after the issuing of the tax bills,) he paid to the collector, making a protest, at the time of paying it, that it was an illegal tax, and that he paid it under duress, and not voluntarily.</p> <p>It was agreed by the parties, that if, upon these facts, the court should be of opinion that the action could not be maintained, the plaintiff should become nonsuit; otherwise, that judgment should be rendered for him.</p>

<p>This was an indictment, which alleged that the defendant on the 18th of April 1845, with force and arms, at Newburyport, “ contriving and intending one Jonathan Blake by false pretences to cheat and defraud of his money and property, unlawfully, knowingly and designedly, did falsely pretend to said Blake that a certain watch which he, said Strain, then and there had, was a gold watch, by means whereof said Strain then and there unlawfully, knowingly and designedly did obtain from said Blake sundry bank bills and silver coin, amounting together to the sum of thirty nine dollars and fifty cents, and of the value of thirty nine dollars and fifty cents, of the money and property of him the said Blake, with intent him the said Blake then and there to cheat and defraud of the same ; whereas, in truth and in fact, said watch was not then and there a gold watch, and said Strain then and there well knew that the same was not a gold watch : to the great damage and deception of him the said Blake, against the peace, and contrary to the form of the statute in such case made and provided.”</p> <p>After the defendant was found guilty by the jury, on a trial in the court of common pleas, he alleged exceptions to the ruling of that court on a matter of evidence ; and, when the case came into this court, he filed a motion in arrest ol judgment, which rendered a decision on the exceptions unnecessary.</p>

<p>This was a bill in equity, originally brought by William W. Crease alone, dated April 28th 1837, and entered at November term 1837, against numerous stockholders of the Chelsea Bank, the charter of which was repealed by St. 1837, c. 225, to compel the defendants, under the Rev. Sts. c. 36, $ 31, to pay certain bills, issued by said bank, which were unpaid when its charter was repealed, and of which said Crease was the holder. The bank was made a party to the original bill, which was inserted in a writ that directed an attachment of the defendants’ property. Some of the defendants filed pleas to that bill, and some demurred thereto, on the ground that the repeal of the charter of the bank was unconstitutional and void. This demurrer was overruled in June 1839. (See 23 Pick-. 334 — 346.) Those defendants who had pleaded then moved for leave to amend their pleas; and this motion was argued at November term 1839, by C. G. Loving, Sprague Sp W. Gray, for the defendants, and by B. Rand Sp Derby, for Crease.</p> <p>The matter of the original pleas and of the proposed amendments sufficiently appears in the opinion of the court, delivered on the 30th of March 1840, bv</p>

<p>This was a bill in equity, brought by the plaintiff, for himself and all other holders of bills of the Nahant Bank, which were unpaid on the 19th of April 1837, (when its charter was repealed by St. 1837, c. 214,) against the holders of its stock at that time.</p> <p>The facts of the case appear in the opinion of the court.</p> <p>The first argument was had at March term 1844, by B. tí. Curtis, for the plaintiff, and by Greenleaf Sf Gardiner, for the defendants. The opinion of the court, on the points then argued, was de'ivered on the 1st of July 1844, by</p>

<p>This action was brought at tne April term of the court of common pleas, in 1844. On the first day of that term William A. Cheever, who was summoned as trustee of the principal defendant, appeared by his attorneys, and filed a general answer, stating that, at the time when the writ was served on him, he had not any goods, effects or credits, in his hands or possession, belonging to the said defendant, and submitting himself to be examined on oath. On the same day, the plaintiffs’ counsel filed interrogatories, to which said Cheever, on the ninth day of said term, filed his answers on oath, disclosing the amount of eighty nine cents only in his hands, belonging to the principal defendant. At a subsequent term of said court, the plaintiffs recovered judgment against the principal defendant, and their counsel moved that said Cheever be charged as trustee, upon his answers. His counsel contended that he ought not to be charged as trustee, inasmuch as he had been put to trouble and expense, and his legal fees for travel, attendance, &c. amounted to more than thirty dollars, and if he should be adjudged to be trustee of said defendant, he should have judgment against the plaintiffs for the balance of his costs, after deducting the amount in his hands. But the court ruled that he should be charged as trustee, and have no judgment for costs. To this ruling the said trustee alleged exceptions.</p>

<p>This was an action of covenant broken, brought by the assignee of Thomas Cushing, a bankrupt, on a covenant made by the defendants with said Cushing, on the 21st of August 1835. The defendants moved the court to quash the writ and declaration, “ because it appears by the said writ and declaration that the said Joshua H. Ward brings this suit as assignee, under the late bankrupt law of the United States, of Thomas Cushing, a bankrupt, upon a covenant alleged to have been made by said defendants to said Cushing, before his bankruptcy; and that such a suit is only cognizable by the circuit and district courts of the United States ”</p>

<p>A firm m this State made a note payable to their own order, and indorsed it to a firm in New York. Held, that a discharge of the makers and indorsers, under the insolvent laws of this State, was not a bar to an action against them, on the note, by the indorsees, who had not proved their claim thereon, under those laws.</p>

This was an action of assumpsit, commenced July 9th 1844, on the following bill of exchange: “ Bangor, March 13th 1841. Sixty days after date, please pay to John Fiske, or order, the sum of one thousand dollars, for value received, and charge the same to account of your obedient servant, Joshua Hersey, -jr. To William Foster, Esq., Boston.” There were also the money counts, and a count for three per cent, damages, on the statutes.