Volume 53 — Massachusetts Reports

This was an appeal from a decree of a master in chancery. The appellant set forth the following facts: On the 17th of June 1846, Isaac B. Rich and Isaac Tribble of Plymouth, partners in trade, petitioned a master in chancery for the benefit of the insolvent laws, and a warrant was issued by the master. An assignee of their estates, joint and separate, was chosen by their creditors.

This was an action of trespass against the sheriff of Plymouth, for the taking and carrying away of the plaintiff’s horse, cattle and sheep, by J. M. Reed, one of the defendant’s deputies.

At the court of common pleas, held by Washburn, J. August term 1846, Henry Sturtevant applied to said court to accept and record the verdict of a sheriff’s jury, assessing damages occasioned by the laying out of a highway over his land.

<p>A judgment of a justice of the peace, in a criminal case, is erroneous, if the complaint do not show in what town or county the alleged offence was committed.</p> <p>A writ of error lies, to reverse a judgment of a justice of the peace, in a criminal case, although the judgment was open to an appeal.</p>

The general answer of William B. Crandell, who was summoned as trustee of the principal defendants, was filed at the December term of the court of common pleas, in 1842, and he therein denied that he had in his hands any goods, effects or credits of said defendants, or of either of them, unless he should be holden as a trustee of Charles B. Wilmarth, one of said defendants, upon the following facts: “On the 16 th of November 1842, he received of Charles B. Wimarth a aeed of…

This was an action of assumpsit, commenced on the 31st of December 1844, upon a promissory note, given by the defendant to the plaintiff, dated September 15th 1838, and payable on demand.

<p>Writ of entry, to recover one undivided third part of a messuage and sixty acres of land in Dartmouth. Trial before Hubbard, J. who made the following report thereof :</p> <p>It was proved .or admitted, that William Smith formerly owned the demanded premises, that he resided at Newport (R. I.) at the time of his death, which was on the 28th of May 1807; and that his will, dated October 9th 1801, was duly proved, at said Newport, on the 3d of August 1807. The following items in the will relate to the land now demanded : “ Item. To my beloved wife, Hannah Smith, I give and bequeath all the profit and benefit of my whole estate, real and personal, until my youngest child, Demarus Smith, doth arrive at the age of fifteen years, provided she remain my widow until that time ; but if she marries again, though it be before my daughter Demarus arrives at the age of fifteen years, then the same to cease and determine, and the whole to be distributed among my children, in such manner and proportions as is hereinafter directed. Item. After my daughter, Demarus Smith, arrives at the age of fifteen years, then I give and bequeath unto my wife, and my will and desire is, that she should have the use and profit of the one half of my whole estate, for the term of her natural life; except such parts of it as are otherwise specially disposed of. Item. From the time that my daughter Demarus arrives at the age of fifteen years, I give and devise one half of my real estate unto my son David Smith, his heirs and assigns forever; and if, after she arrives at the age of fifteen years, as aforesaid, my wife, that now is, doth marry again, then I give and devise unto my son David the whole of my real estate, to hold to him, his heirs and assigns forever; said estate consisting of a farm which was given me by my father, situate in Dartmouth, in the State of Massachusetts. Item. I give and bequeath unto my daughter Mary Cranston six dollars, and unto my daughters Sarah Smith, Hannah Smith, and Demarus Smith, each the sum of eighty dollars. Said legacies to be discharged by my son David, in their respective proportions, one half in one year from the time at which he comes into possession of the estate hereinbefore devised unto him, and the other half in two years from the time of his first possessing the same. And whereas it often happens that the improvement of lands, by reason of the difficulty of obtaining good tenants, is a source of perplexity, and material injury arises to the freehold from carelessness, waste and shipment, to the detriment of the heirs, it is therefore my desire, that the real estate mentioned, being a farm in the town of Dartmouth, from the time of my decease shall be under the management and control of my son David Smith, he being accountable to his mother, Hannah Smith, for the avails, profits and benefits thereof, agreeably to the disposition of the land hereinbefore expressed. And if he should die without lawful heirs, then all that I have given and devised unto him I give and devise unto his three younger sisters, Demarus, Hannah and Sarah, their heirs and assigns forever, subject to the limitations, benefits and uses hereinbefore made to the mother.”</p> <p>Elizabeth Russell, a witness called by the demandants, testified that she was a daughter of said William Smith, and was brought up on the Smith farm in Dartmouth, with her grandfather, and lived there about twenty five years, and in sight of it since ; that her father did not live on said farm, after he was married, but came into possession of one half of it, after the death of his father in 1800, and used to let out his half of it while he lived; that his widow, after his death, let it out, till Bradford Howland took possession of it in 1826 or 1827; that said widow died in 1842 or 1843, not having married again, and that David Smith died in Charleston (S. C.) on the 25th of February 1826, never having been married.</p> <p>It was in evidence that the female demandant, before her marriage, was Sarah Smith, daughter of said William Smith, and that Hannah Smith, another of his daughters, was still alive.</p> <p>The demandants claimed title in right of said Sarah, as devisee under her father’s said will, on the ground that David Smith died unmarried and without heirs of his body. The tenant claimed title under a deed to him from Bradford Howland and Daniel Howland, jr., of the whole premises demanded, bearing date June 2d 1831, and recorded March 11th 1833. Said Howlands claimed title under a deed of Hannah Smith, the widow of said William Smith, and his daughters Hannah and Demarus, bearing date September 6th 1827, and recorded on the 14th of the same September. This deed conveyed all and each of the grantors’ right, title and interest in the demanded premises, which were therein described as “being the same estate that descended to us, the grantors, as heirs at law or legal representatives of William Smith.” The said Bradford Howland also claimed title under a deed of David Smith, bearing date in the year 1826, without date of month, acknowledged February 1st 1826, and recorded August 15th 1827, conveying to said Bradford the whole of said demanded premises, for the alleged consideration of $500. This deed recites, that the farm was devised to said David by the will of his father, William Smith, dated and proved as before mentioned.</p> <p>After' the foregoing evidence was introduced, the cause was withdrawn from the jury by consent of parties, that the full court might render such judgment as the law requires.</p>

<p>This was an action for a deceit alleged to have been practiced by the defendant on the plaintiff, in an exchange of horses by them on the 17th of November 1844. The trial was in the court of common pleas, before Colby, J. whose report thereof was as follows :</p> <p>Isaac Barker, the plaintiff’s witness, who was the only person present at the time of the alleged deceit, testified that he accompanied the plaintiff to the house of the defendant in Randolph, in the county of Norfolk, on the 17th of November 1844, being the Lord’s day, and that, between the hours of three and four o’clock of the afternoon of that day, the plaintiff exchanged with the defendant a horse-that he had, for a horse owned by the defendant, and gave the defendant one hundred and seventy five dollars difference, and that there, during that time, and in relation to said exchange of horses, the defendant made the representations, and used the deceit, charged in the plaintiff’s declaration.</p> <p>The plaintiff, upon inquiry by the defendant, admitted that he did not expect to control the testimony of the witness, in respect to the time when the exchange was made and the deceit was alleged to have been practised.</p> <p>The defendant requested the court to rule, that if the jury believed that the purchase of the horse was made by the plaintiff, on the Lord’s day, between sunrise and sunset, and that-the deceit complained of was in relation to the exchange of horses, in the nature of a contract, between sunrise and sunset, then the whole proceeding was unlawful, and the plaintiff. could not maintain his action. But the court ruled, that if the deceit was practised in relation to such a contract made on the Lord’s day, between sunrise and sunset, it did not, for that cause, prevent the plaintiff from recovering of the defendant for the damage he suffered by the deceit. The jury found for the plaintiff, and the defendant alleged exceptions to the ruling of the court.</p>

<p>Proprietors of common and undivided land voted to convey to a parish a parcel thereof, on which a meeting-house had been erected, “ reserving to the inhabitants of the town the privilege of occasionally holding town meetings in said meeting-house,” and authorized a committee to execute a deed: The committee executed a deed, which recited the vote, but made no reservation in the granting part thereof. Held, that the deed conveyed the land, subject to the reservation in the vote. Held also, that a person, who bought the meeting-house of the society, had notice of the reservation, by the record of the deed, and took the house subject to the right of the town to hold meetings therein, whilst it should stand on the land conveyed by the proprietors.</p> <p>A town held its meetings in a parish meeting-house, nearly fifty years, free of charge, and the parish afterwards sold the house to G. Held, that G. could not dispute the right of the town to hold meetings in the house, whilst it remained where it was erected. Held also, that a grant, by the parish to the town, of a right to hold meetings therein, might be presumed from the long occupation of the house for that purpose.</p> <p>Selectmen have no authority, by virtue of their office merely, to make a contract, in behalf of a town, for the hiring of a building for the purpose of holding town meetings in it.</p>

This was a complaint under the mill act, (Rev. Sts. c. 116,) in which the complainant prayed that a warrant might issue for the empannelling of a jury to assess the damages occasioned to his land by a reservoir dam maintained in part by the respondents, and used for working their mills.

<p>Assumpsit to recover expenses incurred by the plaintiffs in the support of Henry Andrews, a pauper, son of Henry Andrews deceased. The case was submitted to the court, upon the following agreed statement of facts:</p> <p>“ The legal settlement of Henry Andrews, the father of the pauper, was in the town of Taunton, and the pauper’s settlement is still in that town, unless he acquired a settlement in the town of Middleborough, by the following facts and circumstances : The pauper himself acquired no settlement in Taunton, unless through his father. His father resided in Taunton, and the pauper lived in his family until 1829, when his father went to reside in Middleborough, the pauper being in his family, and then of the age of twenty eight years, and being at that time, and long before he came of age, and until the present time, an idiot. His father continued to reside in Middleborough until September 1844, when he died; the pauper all that time living in his family. In October of the same year, the overseers of the poor of Taunton removed the pauper to the alms house in Taunton, where, he still continues ; and the action is brought for the expenses of supporting him there since March 1845. His father was taxed in the town of Middleborough, every year, from 1833 to 1843, inclusive. In July 1839, he had paid all the taxes assessed upon him for the first five years; and the subsequent five years’ taxes also were paid. It appears by the books of the selectmen and overseers of the poor of Taunton, that various sums of money were paid by them to the pauper’s father, to aid in the support of the pauper, while they lived in Middleborough; from 1829 to 1834, inclusively, five dollars a year; in 1837, 1838 and 1839, fifteen dollars a year; in 1841, 1842 and 1843, twenty dollars a year. If the fact be admissible in evidence, it is agreed that the pauper’s father was a man of no visible property or estate, while he resided in Middleborough. It is also agreed that due notice was given by Taunton to Middleborough, and due rejection made by Middleborough to Taunton.”</p>

<p>A judgment recovered by a plaintiff, in an action for use and occupation of real estate, is admissible in evidence against the defendant on the trial of a writ of entry, brought against him by the plaintiff in the former action, tc recover possession of the same real estate.</p> <p>A tenant of real estate, who enters under a parol demise from A., and holds over, cannot defeat a writ of entry brought by A. to recover possession of the demised premises, by setting up a conveyance of the premises, made by himself to B., after the demise, and a subsequent holding by him under B.</p>

<p>This was an action of trespass upon the case, charging the defendants with having so negligently and carelessly transported the plaintiff’s trunk, when he was travelling, as a passenger, over their road, that the same, with its contents, was wholly lost.</p> <p>At the trial in the court of common pleas, before Colby, J. the plaintiff was admitted as a witness, to prove the contents of his trunk. He testified that it contained certain articles of wearing apparel, several books, and twenty five dollars of money, in half eagles. He also testified to the value of the wearing apparel and books.</p> <p>The defendants objected to the admission of the plaintiff as a witness, and also to his being permitted to testify, if at all, to the value of the contents of the trunk. The defendants also contended that they were not liable for the books or money, alleged to be a part of the contents of the trunk, as they did not constitute a part of a passenger’s ordinary baggage, for the safety of which passenger carriers are liable. But the judge overruled these objections, and instructed the jury, that if the testimony of the plaintiff was believed, there being no other evidence in the case to control it, the defendants were liable, in this action, for the trunk and its contents, with interest from the date of the plaintiff’s demand on them for indemnity.</p> <p>Under these instructions the jury returned a verdict for the plaintiff. The defendants alleged exceptions.</p>

<p>This was an action of assumpsit for money had and received, money paid, goods sold and delivered, work and labor performed, and materials found. A count was added on the following account annexed to the writ: “ June 13th 1843. To amount of proportion of slop bills against the seamen on board the barque Franklin, on her recent voyage, received by you in settlement with William E. Beetle, master of said</p> <p>barque,...............$326-55</p> <p>Interest to October 29th 1844, .... 27-75</p> <p>$354-30.”</p> <p>At the trial before Hubbard, J. it was agreed by the parties, that the barque Franklin belonged to the defendants, and that William E. Beetle was the master: That the barque sailed on a whaling voyage, in July 1839, and returned in April 1843 : That before she sailed, the master, who had lad dealings with the plaintiff, entered into an agreement with him to take a quantity of slops for seamen, to sell on joint account, and that the invoice of the goods was headed thus : “ Invoice of merchandize consigned by Joshua Richmond to Captain William E. Beetle, for sale on joint account ; the profits to be divided, after paying interest and insurance.” It appeared that the amount of the aforesaid invoice was $525-80, and that one half of this amount was charged by the plaintiff to Captain Beetle, in account, and that a note was1" given by Beetle to the plaintiff for the balance; that Beetle received the goods on board the Franklin, and sold nearly all of them to the crew, during the voyage, and charged the crew, respectively, with the amount that each received; that Beetle, on his return home, rendered the account of his slop bills against the crew to the owners of the barque, amounting to $653-10, which sum was credited to him in an account settled June 2d 1843, on which account there was a balance of $59-92, due to him, independently of his share of the voyage, for, which share another account was stated with him by the owners, in which he was credited $977-60, and with the aforesaid balance of $59-92, and charged with a note and a small account held against him by the owners; leaving a balance to him of $864-82, which the owners (the defendants) paid over, on the 11th of January 1844, to T. G. Coffin, Esq. for account of Munroe & Morse, to whom Captain Beetle, being insolvent, had assigned his interest in the voyage, by an order on the defendants of the following tenor : “ For value received, pay to the order of Munroe & Morse the Avhole amount due me for the balance of my voyage in the barque Franklin. W. E. Beetle.”</p> <p>It appeared that the aforesaid order was presented to the defendants the day after the arrival of the Franklin, in April 1843 ; and that the plaintiff, on the 5th of June 1843, gave Avritten notice to the defendants that he claimed the amount of money in their hands, derived from the slops sold on board the Franklin to the seamen, and requested them not to pay over the proceeds to any other person.</p> <p>The following facts also appeared : After the plaintiff gave the aforesaid notice to the defendants, Munroe & Morse, in the name of Beetle, sued the defendants, who at first attempted to defend the suit, for the plaintiff; but Munroe & Morse gave an indemnifying bond to the defendants, who then suffered judgment to be rendered against them; putting on file the following agreement made between them and Munroe & Morse: “ It is hereby agreed that judgment in this case shall not prejudice or affect, in any way, the rights or claims of Joshua Richmond to any part of the money in the defendants’ hands, any further than any payment of them would, with notice of said Richmond’s claim thereto.” The amount paid over by the defendants to Munroe «Sí Morse was $864-82; the defendants retaining all that was due from Beetle to them, by note or account, without reference to the Franklin’s voyage;</p> <p>The plaintiff claimed, in the present suit, the proportions due to him (with interest) for the slops furnished to Beetle, and the proceeds of which were received by the defendants.</p> <p>Munroe «Sí Morse (who defended this suit) claimed to retain the whole amount received by them.</p> <p>The judge directed a verdict for the plaintiff, for the sum claimed by him.,- and a verdict was returned accordingly, subject to the opinion of the whole court.</p>

Trespass for breaking, cutting down and destroying a seine reel, the property of the plaintiffs.

This was an indictment against William P. Blodgett, Stephen Hendrick and Darius Briggs, founded on the Rev. Sts. s. 125, 20, and alleging, in… Held: under and by virtue of the same, against the laws and existing authorities of said State: That by said elections, a government, claiming to derive its powers from said constitution, so called, was, on the 4th of May 1842, actually organized at Providence, within said State, as the General Assembly thereof, and proceeded to pass…

The defendant was indicted on St. 1845, c. 216, 1, which enacts that “ any person, who shall fraudulently and deceitfully entice or take away any unmarried woman, of a chaste life and conversation, from her father’s house, or wherever else she may be found, for the purpose of prostitution, at a house of ill fame, assignation, or elsewhere,” &c. “ shall be punished,” &c. The trial was in the court of common pleas, before Wells, C. J. whose report thereof was in substance as…

<p>(Jnder an article in a warrant for an annual town meeting, “ to choose all such town officers as the law directs,” the town may lawfully pass a vote authorizing the several school districts to choose their prudential committees.</p> <p>A school district passed the following vote or by-law: “ The annual meetings of the district shall be called by the prudential committee, and warned by the clerk, who shall cause a copy of the warrant to be published in ” a certain newspaper, printed in the town, “ and shall also post a copy of the same in four different public places within the limits of the district; and the prudential committee shall call the annual meeting of the district on the Saturday evening following the annual town meeting in March: ” The clerk signed and issued a warrant, not under seal, for an annual district meeting on the Saturday evening designated in the said vote or by-law, “by order of the prudential committee,” (which order was oral,) and made thereon the following return: “ In pursuance of the above warrant, I have warned the legal voters of the district,” (naming it,) “ as prescribed by the by-laws, to attend and act upon the business therein named. J. A. G. District Clerk.” Held, ihat the warrant for the meeting, and the warning of the meeting, were valid. ». school district, after having chosen one person as prudential committee at its annual meeting, and adjourned, may choose additional members of such committee at the adjourned meeting.</p> <p>A majority of a prudential committee of a school district may lawfully do official acts, especially after a refusal of the minority to meet with them.</p> <p>A school district, by vote, instructed its prudential committee “ to prosecute for trespasses that have been, or in future may be, committed, by breaking into the school houses of the district,” and the committee employed an attorney to commence several actions of trespass, which he commenced and prosecuted accordingly ; and he afterwards sued the district for his fees and disbursements in those actions. Held, that the district was bound by the acts of the committee, and that the attorney was entitled to recover, although the said vote of the district was not in pursuance of any article in the warrant for the meeting at which it was passed.</p>

<p>This was a bill in equity, praying for the specific performance of an alleged agreement to lease to the plaintiffs a parcel of land for the site of a school house. The case was submitted to the court on the bill and answer, and the following statement agreed on by the parties :</p> <p>It appears by the records of the plaintiff district, that at a meeting of said district, on the 23d of September 1839, in pursuance of an article in the warrant “ to see how the district will have their district meetings called and warned in future,” the district “ voted to authorize their clerk to call and warn their annual meetings,” and also “ voted to notify the meetings by posting notices at the stores of Leonard Hodges and L. & W. S. Belcher; ” and that all meetings of the district, since that time, have been so called and warned, with the knowledge of the defendant, who was usually present and took part in the proceedings, without objecting to such mode of calling and warning.</p> <p>A meeting for choosing officers was held on the 14th of March 1845, and Jedediah Adams was reelected clerk of said district. Said Adams was chosen clerk at a meeting on the 14th of March 1843, and made the record of said meeting, and was sworn on the 22d of March 1843, since which time he has never been sworn, but has been clerk ever since, until the 18th of October 1845, when Samuel W. Curtis was chosen clerk and sworn ; said Adams having resigned. Said Adams, as clerk, recorded the doings of said district at their meeting on the 14th of March 1845.</p> <p>On the 18th of April 1845, said Adams, as clerk of said district, at the special request of the defendant, drew up and signed three papers, which were alike, and of which the following is a copy: “ The inhabitants of the third school district in Stoughton, qualified to vote in town affairs, are hereby notified to meet at their school house, on Monday, the 28th instant, at 5J o’clock, P. M. to consider and act on the following articles, viz.: Art. 1'. To choose a moderator. 2. To see if the district will procure a piece of land for the use of the scholars, &c. 3. To see if the district will move their house on the said land, if they procure any. Jedediah Adams, District Clerk. Stoughton, April 18th 1845.” Two of these papers were posted up, one at said Hodges’s store, and one at said Belchers’ store, at least seven days before the said 28th of April. But if parol evidence be admissible to prove that fact, no return in writing of said posting or service was ever made on either of said notices, or on the 'district records, until the 13th of October 1845, and after this suit was instituted; but said copy of the notice, on the book of records, was made from the original, at or about the time of the meeting on the 28th of April, as hereinafter mentioned; and on the 13th of October 1845, said Adams, still being clerk, made the return, in writing, on the back of said original notice, and recorded the same in the book of records.</p> <p>The notice for said meeting of April 28th 1845 was issued without any application being made in writing, and signed by voters in said district, and without any warrant being issued by the prudential committee, or by any town or other officer. And the defendant, when he requested the said Adams to draw up the aforesaid papers, did not suggest the contents or phraseology thereof, except the general tenor of the articles.</p> <p>At the meeting on the 28th of April 1845, the original notice was brought into the district meeting, (the clerk, said Adams, being absent from said meeting, if parol testimony be admissible to prove it,)'and said meeting was called to order by virtue of said notice, and thereupon said district chose Samuel W. Curtis clerk pro tempore, who, if parol evidence be admissible to prove it, or if the records prove it, accepted said office, and wrote upon a sheet of paper the doings of said meeting, which were, in a day or two after said meeting, written out in the book of records from minutes, by said Adams, and by him subscribed as district clerk, and are a true record of the doings of that meeting, if parol evidence or the said records are competent to prove the fact. Said Curtis was never sworn as clerk pro tempore. A moderator was then chosen. The defendant, an inhabitant of said district, and legal voter therein, was present at said meeting, and when said articles came up to be acted on, verbally offered to lease to the district, for the purpose aforesaid, so long as they should wish to use it, one half acre of land, near their said school house, of which he was and still is seized and possessed in fee simple in his own right; and that he demanded therefor, as rent, the sum of three dollars per year; whereupon said meeting voted to adjourn for ten minutes, to view the land, and did so adjourn, and in company with said Atherton, who pointed it out to them, paced and staked it off; that they then returned to their said place of meeting, and having come to order, the defendant was requested to put his proposal or agreement in writing, as the same would have to go on the records; to which the defendant assented, and sat down in said open meeting, and wrote the following: “ E. A. will lease to the third school district a lot of land containing half an acre, to be six rods wide on the road, the northwest side to be where the fence now stands, by the orchard, and extend back far enough to make said half an acre; said district to keep it fenced with a tight board fence not less than five feet high; they to pay said Atherton three dollars per year, payment to be made at least once in five years, and interest when not paid annually, and interest to be deducted when paid in advance ; they to hold the same on these conditions, as long as they choose to occupy it for the purpose of keeping a school house thereon, and no longer.”</p> <p>Said memorandum was not signed at bottom; the first nine words, including the “ E. A.” were written by the defendant in lead pencil, the rest in ink. This agreement the defendant handed in to the chairman of said meeting, and said, that was what he would do. The chairman read it aloud, and upon motion to that effect, said district unanimously voted to accept the agreement, and voted that J. Adams, the clerk oí said district, be authorized, in behalf of the district, to sign and take a lease of said land; and the moderator at the same time handed the agreement to said Curtis, the clerk pro tempore, to be by him recorded, and it was recorded, as aforesaid, as appears by the records of said district. Immediately after said meeting, the district purchased lumber, and carted it on to the land, for the purpose of building said íence, and their school house now stands upon land of the defendant, of which the district are only tenants at will; and the defendant has notified them to quit the same, and remove the school house therefrom ; and unless they have a lease ot the premises demanded, there is no place in said district to which they can move it, without great and disproportionate expense and inconvenience. Said district, immediately thereafterwards, called on the defendant, and requested him to make and execute a lease according to said agreement, and tendered him such a one, requesting him to execute it, which he refused ; and said district then and ever since were ready, and offered to execute and perform their part of said written agreement; but the defendant refused; but he offered to execute a lease at a rent of five dollars per annum, instead of three dollars, or if the district would indemnify him against all trespasses on his lands by the school children; and, up to the time of suit brought, has assigned no other reason for his refusal.</p> <p>At the meeting of the 23d September 1839, Amasa South-worth was clerk, and made said record; and if his parol testimony to that fact be admissible, or if he can now be allowed to amend said record, he would swear that the vote of the district was, that, their clerk be authorized to call and warn all district meetings, and would amend his record accordingly. At a meeting called, warned and holden, as appears by the records, on the 18th of October 1845, said Samuel W. Curtis, pursuant to an article to that effect, was chosen clerk of the district, accepted the office, and was duly sworn; and he immediately afterwards, on the same day, from full and original minutes in his own hand writing, taken on said 28th of April, recorded in the book of records the doings of the meeting of said 28th of April.</p> <p>If, upon the foregoing statement of facts, which said district and said Atherton agree to, simply for the disposition of this case, (in no wise admitting their truth for any other purpose,) the court shall be of opinion that the plaintiffs are entitled to a decree for a specific performance, then the bill is to be taken pro confesso, and such decree passed thereupon as the court judge reasonable; but if the court shall be of opinion that the plaintiffs are not entitled to a specific performance, or any other relief, the bill is to be dismissed.</p>

Assumpsit for the use and occupation of a house, barn and garden, from February 1841 to February 1845.

<p>Replevin of two cows. Trial in the court of common pleas, before Wells, C. J. who made the report thereof, which follows:</p> <p>The defendant undertook to justify the taking of the cows, as a field driver of the town of Quincy, on the ground that they were going at large, contrary to law. Whether or not the said cows were under the c.are of a keeper, at the time they were taken, and whether or not the notice required by the Rev. Sts. c. 113, § 8, was given to the plaintiff within twenty four hours after they were impounded, and the time of the commencement of the present action, were questions submitted to the jury, under the following rulings, and in relation to which evidence was offered by both parties. And a verdict was returned for the defendant.</p> <p>The following is a copy of the notice given by the defendant to the plaintiff, and which was ruled to be sufficient, and -a compliance with the requisitions of the statute in regard to notice, in form and substance : “ Mr. Harvey Field. Sir: I took two red cows belonging to you, and impounded the same in the-town pound, whereof Thomas Chandler is pound keeper, on the tenth day of July instant, for going at large in Franklin Street, in said Quincy, contrary to law. John Jacobs, Field Driver. Quincy, July 11th 1845.”</p> <p>It was also ruled, that if the action was commenced within twenty four hours of the time of the impounding, it was not necessary for the defendant to give any notice to the plaintiff of the impounding.</p> <p>It was further ruled, that the burden of proof was on the defendant to show the giving of the requisite notice, and that it was given within the time required by the statute, unless the necessity of notice was superseded by the commencement of the action within twenty four hours of the time of the impounding; subject, however, to a presumption that an officer, in the discharge of an official duty, discharges such duty legally and properly.</p> <p>Evidence was introduced, tending to show that the writ was begun to be made on the day that the cows were impounded, (and it was left in doubt whether or not it was completed on that day,) and that the bond was not executed until after the expiration of twenty four hours from the time of the impounding, when the writ, with the bond, was given to the officer for service.</p> <p>The writ and the bond both bear the date of July 10th 1845, which was the day of the impounding.</p> <p>The jury were instructed, that if the writ was filled out before the expiration of twenty four hours from the impounding, with the intent, at all events, to have it served, whether the defendant should give the plaintiff notice of the impounding within twenty four hours or not, the action was commenced at the time the writ was thus filled, although not given to the officer for service, nor served, and although the bond was not made until after the expiration of twenty four hours from the time of the impounding.</p> <p>It was also ruled, that the bond was no part of the writ, and that the action was commenced when the writ was made, without any reference to the bond, or the making of the bond.</p> <p>The plaintiff alleged exceptions to the said rulings and instiuctions.</p>

<p>This was an action of debt, commenced on the 13th of August 1845, to recover $400, awarded to the plaintiff, by the county commissioners of Norfolk, as damages sustained by him by the laying out by said commissioners (after a refusal of the selectmen of Medway to lay it out) of a town road over his land.</p> <p>At the trial in the court of common pleas, at December term 1845, before Wells, C. J. the defendants offered the following evidence, which was admitted, though objected to by the plaintiff:</p> <p>1 st. That the land taken for said road was only sixty one rods in length, and that fifty five rods more of land belonging to the heirs of Adam Bullard, and not to the plaintiff. were taken for said road, and were included in the estimate of said $400, by said commissioners, and for which said heirs have had a jury, and have had their damages assessed upon said fifty five.rods. 2d. That at the date of the plaintiff’s writ, his land had not been taken or entered upon for the purpose of making said road. 3d. That the selectmen of Medway, on the 18th of December 1845, at an adjourned term of the county commissioners, applied for a jury to reduce said $400 damages.</p> <p>The defendants admitted that the plaintiff, according to an order of the county commissioners, had taken his fence from his said land, and had fenced out said road, and had demanded payment of the defendants, and been refused, prior to the date of his writ; and that said land had been taken and the road made, prior to the said application of the selectmen to said commissioners for a jury to reduce said damages.</p> <p>The judge ruled that the plaintiff could not maintain his action. The jury returned a verdict for the defendants, and the plaintiff alleged exceptions.</p>

This was an action of debt to recover one fifth part of a sum awarded by the selectmen of Medway for damages done to the land of the five heirs of Adam Bullard, (of whom the plaintiff’s intestate was one,) by the laying out of a town road, by said selectmen, over said heirs’ undivided land.

Writ of entry to recover four acres of meadow land in Braintree. The case was submitted to the court on the following statement of facts: The demandant claims under a clause in the last will of John R. Hollis, dated April 13th 1842, in these words: “ Item.

<p>Assumpsit on the money counts, and on an agreement, (hereinafter set forth,) dated October 1st 1828. The action was commenced in 1841.</p> <p>At the trial in the court of common pleas, before Colby, J. September term 1845, the plaintiff gave in evidence the report of an auditor, who had been appointed, at a former term, to hear the parties, examine their vouchers and evidence, &c. This report stated that on the 1st of October 1828, the following paper was signed by the defendant, by each of the plaintiffs, and by sundry other persons :</p> <p>“ Whereas it is contemplated by us, the subscribers, to build a meeting-house near the rail "way in Milton, and whereas we have chosen James Hall, Edward Glover, Gridley Bryant and William Newcomb, all of Quincy, in the county of Norfolk, and William Felt of Milton, in said county, a committee to locate and build said house, which is not to exceed an expense of $5000, including the purchase of the land and all expenses to the completion of said house; and whereas it will be necessary to borrow the sum of $5000, to enable our said committee to execute the said undertaking; now in consideration that our said committee do give their note for said money, upon such terms as they can procure the same, we do promise and agree, that we will indemnify and save harmless the said committee, in the proportion to the number of shares for which we have respectively subscribed, it being understood that the number of shares, at first agreed to be eighty, shall be increased to one hundred, and that our said committee be authorized to fill up said subscription to said number, by additional admission, at their discretion, either before or after the signing of this instrument. The said subscription paper, which is hereunto annexed,* suffering the alteration as to number of shares and amount above specified, shall still be directory to our committee abovesaid as to the building of said house. In witness whereof, we the subscribers have hereunto set our hands, the 1st of October 1828: ” That the whole number of shares, that were ever subscribed for on the foregoing paper, was eighty three, of which the defendant subscribed for three ; and that each of the plaintiffs subscribed for one share or more : That the plaintiffs (the committee named in the foregoing paper) constructed and completed a meeting-house in Milton, at an expense exceeding $5000, viz. $5941-62, exclusive of interest; and that if interest should be added, up to the time of the auditor’s making his report, the expense would be $10,784-14: That by the sale of pews, and from assessments laid and collected, the plaintiffs had received the sum of $9708-03, casting interest, as above, on the principal received; leaving a balance of $976-11. And the auditor reported that the last mentioned sum was due to the plaintiffs.</p> <p>The defendant, at the trial, relied on the statute of limitations. The plaintiffs, to take their case out of the statute, showed that they borrowed $1000 of L. Cushing, as a part of the $5000 mentioned in the subscription paper aforesaid, and gave their promissory note therefor, dated June 2d 1829; that within six years of the commencement of this action, they requested the signers of said paper to join and assist in paying the note, which said signers refused to do ; and therefore the plaintiffs paid said note on the 17th of July 1839. There was no evidence of any other payment made by the plaintiffs within six years next before this action was commenced.</p> <p>Upon the foregoing facts, the counsel for the defendant contended that the action could not be maintained ; because it was barred by the statute of limitations; because the plain • tiffs, being themselves subscribers of the paper of October Is' 1828, could not sue the defendant in an action at law, but that their remedy, if any, was by bill in equity; because the said subscription paper was never perfected; because the defendant was not liable beyond $5000 ; and because the declaration was insufficient, and not adapted to the evidence And the judge so ruled and instructed the jury. A verdict was rendered for the defendant, and the plaintiffs alleged exceptions to the said ruling and instructions.</p>

<p>Assumpsit on a promissory note, made to the plaintiff’s intestate, of the following tenor : “ Medway, 13th December 1837. On demand, for value received, I promise to pay Susan Adams, or order, two hundred five and T6g2g- dollars, and interest. James B. Wilson.”</p> <p>At the trial in the court of common pleas, before Wells, C. J, the defendant, after his signature to the note had been proved o'- admitted, placed his defence on the want of consideration. and also on the failure of consideration.- To support these grounds of defence, he offered to prove the following facts r That early in the year 1837, the plaintiff’s intestate had three notes against C. S. Cheever, amounting to $230, and also an account: That the defendant was the consignee of said Cheever, and had in his hands a large amount of his goods : That the plaintiff’s intestate applied to the defendant for payment of her said debt, but that no arrangement was made respecting it until after the failure of Cheever, which was in March 1837, at which time the defendant had a very considerable amount of Cheever’s goods in his hands, but was liable on acceptances of various drafts drawn on him on account of said goods: That the plaintiff’s intestate, through her agent, applied to the defendant for payment of her said debt, and the defendant promised to pay the debt, provided he had sufficient property to pay it, after meeting all his acceptances : That an arrangement was afterwards made with said agent, by which it was agreed that the plaintiff’s intestate should indorse her said notes and deliver them to the defendant, and that the defendant should give his promissory note to the said agent for the amount due to said intestate, which note was not to be delivered to her, nor the fact of its having been made be communicated to her, but the note was to be retained by the agent, for her benefit; and an accountable receipt was to be signed by the defendant and delivered to said intestate : That said notes, indorsed by the said intestate, were delivered to the defendant, and he signed the note and receipt, as agreed: That, some time after this, the fact of the existence of the defendant’s note to said agent was communicated to the said intestate, and she applied to the defendant for a settlement of the business: That the defendant, after some delay, and being in a state of some vexation and excitement, told the said agent, that he had concluded to give the said intestate a note, or pay her, whether he got any thing, or not, from the property consigned to him, and requested the agent to go with h im to her, and make a settlement: That the parties met; the agent gave uo the note previously given to him ; the said intestate gave up the defendant’s receipt, and the defendant gave to her the note in suit, being for the balance ascertained to be her due from Cheever: That there was no other consideration for the note : That the defendant retained the notes given by Cheever to said intestate, and had filed them in set-off, in' the present action.</p> <p>The defendant also offered to prove, that when he signed and delivered the last note, it was agreed that the same should not be payable, unless the defendant should be found to have in his hands property or funds of Cheever sufficient to pay it, as before stated. This he offered to prove by evidence of an oral agreement made at the time of the giving of the note, and by a subsequent admission of the intestate. And he offered further to prove, that upon a final sale and disposition of said property, it was ascertained that the property so in his hands was not sufficient to discharge the prior claims that were upon it, and that there was nothing in his hands, belonging to said Cheever, applicable to the payment of the note in suit.</p> <p>The judge ruled that said offered evidence would not prove a want or failure of consideration for the note ; that evidence of an oral agreement that the written promise of payment, which was absolute in its terms, was a conditional promise, was not admissible; and that the plaintiff was entitled to recover. A verdict was returned for the plaintiff, and the defendant alleged exceptions to said rulings.</p>

<p>Trespass upon the case. The plaintiffs’ original decoration alleged that they were owners of a tract of land ¡described) in Wrentham, situate on a brook, and that the lefendant, on the 1st of May 1845, and from that day to the 1st of November following, dammed up and obstructed the flow of water in the brook, and prevented the water from lowing off from said land, and caused the water to overflow said land, whereby the grass and cranberry vines of the plaintiffs, growing thereon, of great value, were injured and destroyed.</p> <p>At the trial before Hubbard, J. it appeared that the flowing complained of by the plaintiffs was caused by a mill dam of the defendant; and the defendant’s counsel objected to the right of the plaintiffs to maintain their action. The plaintiffs thereupon moved to amend their declaration by filing a new count. To this the defendant objected. But the judge permitted the ’amendment, and they filed a new count in substance as follows:</p> <p>For that the plaintiffs, at a court of common pleas held at Dedham on the third Monday of September 1843, duly made and entered their complaint against the defendant, alleging that they, on the 2d of May 1840, and before and since, had been and still were seized and possessed of a tract of land (described) in Wrentham, situated on Stoney Brook, and that the defendant, on said 2d day of May, erected a dam across said brook, and has ever since maintained said dam, for the purpose of collecting and detaining the waters of said brook, to drive and carry mills upon and near said dam; and that the erection and continuance of said dam have caused the water of said brook to flow back upon said tract of land, whereby the plaintiffs had suffered great damage; that said dam had been raised to an unreasonable height, and ought not to be kept up and closed during the whole year, wherefore they prayed that a jury might be empanelled to determine how much, if any, said dam should he lowered, and what part of the year, if any, the same should be left open, and the plaintiffs’ said land left unflowed, and also to assess the sum which the defendant should pay for the damage then sustained by the plaintiffs, by reason of the said flowing, and also the sum which the defendant should pay annually to the plaintiffs, as a reasonable compensation for the yearly damages thereafter occasioned by said dam, so long as it should be used conformably to the verdict of the said jury ; and also to assess a sum in gross, as a reasonable compensation to be paid to the plaintiffs, by the defendant, for all the damages thereafter occasioned by such use of said dam, and for the right of using and maintaining the same forever, in manner aforesaid : That, upon said complaint, it was ordered by said court that a jury should be summoned to hear and determine of said complaint, and to decide all such matters as should legally come before them, on such hearing: That at the December term of said court, in 1843, a jury, summoned and empanelled for the purposes aforesaid, returned the following verdict: “ The jury find that said complainants are entitled to receive damages for the injury caused by the flowing complained of, and they assess the amount of damages sustained within three years next preceding the institution of said complaint, and down to the time of rendering this verdict, at the sum of thirty two dollars for said three years; and they further find, that said dam, of said Sayles, has been raised and kept up, to an unreasonable height, a certain portion of the year, to wit, from the 1st of May tc the 1st of November; and they further find, that said dam ought to be kept open and unclosed, from said 1st of May to said 1st of November, in each year hereafter; and they further find, that the sum of five dollars is to be paid annually by said Sayles to said complainants, and will be a just and reasonable compensation for the damage that shall be hereafter sustained and occasioned b'y the dam aforesaid, so long as it shall be used in conformity with the verdict; and they also further find, that the sum of sixty five dollars in gross will be a reasonable compensation for all the damages to be hereafter occasioned by such use of said dam, and for the right of maintaining and using the same forever, in manner aforesaid;” which verdict was accepted by said court. Yet the defendant, well knowing the premises, at said Wrentham, on the 1st day of May 1845, and from that day to the 1st day of November 1845, raised, kept up and closed, the aforesaid dam, and did not, during said time, keep said dam open and unclosed, according to the terms of said verdict; by means whereof the said Sayles has, during all the time between said 1st day of May and said 1st day of November, caused the water to flow back upon the aforesaid land, and has thereby greatly obstructed the flow of water in a certain stream running through said' land of the plaintiffs, whereby said land has been overflowed and injured, and the grass and cranberry vines there growing thereon, of great value, have been injured and destroyed.</p> <p>The trial then proceeded, and the following report thereof was made by the judge:</p> <p>The plaintiffs offered in evidence a copy of the record of the complaint, verdict, &c. set forth in their declaration, which was objected to by the defendant, but was admitted by the court.</p> <p>It appeared in evidence, that upon the stream contiguous to the plaintiffs’ land, there was an ancient dam, through which the water was accustomed to flow, and that between the said dam and the defendant’s factory dam, there was another dam, with gates in it, which could be opened and closed at pleasure; that the factory dam made the mill pond; that, after the finding of the verdict set forth in the plaintiffs’ declaration, and before the 1st of May 1845, the passage way in the dam first mentioned, through which the water of the stream had been accustomed to flow, was closed for the purpose of making a reservoir on the defendant’s land below said dam, and the water of the stream was diverted from its natural channel, and carried round above said upper dam, and through the defendant’s said land, into the more easterly part of the mill pond: That the gates of the said second dam, after the water of the stream had been obstructed from flowing through said first mentioned dam, as aforesaid, were kept closed, for the purpose of preventing the water of said reservoir from flowing into the mill pond ; the mill pond thereafterwards being ordinarily supplied by the waters of the stream, which flowed through said new channel.</p> <p>It was admitted that the factory dam had at all times been kept closed; which was necessary for the operation of the mills on the dam.</p> <p>No evidence, except the record in the case, was introduced to show which of the aforesaid dams was referred to in said verdict.</p> <p>Upon this evidence, the court instructed the jury, that if they were satisfied that there was a dam erected by the defendant across Stoney Brook, and that said dam had not been kept open and unclosed, from the 1st of May to the 1st of November, and that in consequence thereof the plaintiffs’ land had been flowed, the plaintiffs were entitled to maintain this action. Whereupon a verdict was returned for the plaintiffs, subject to the opinion of the whole court. And it was agreed by the parties, that if, upon the whole evidence, as reported, the plaintiffs were not entitled to maintain their action, the verdict should be set aside, and the plaintiffs become nonsuit; and that if the amended count was not rightly permitted to be filed, it should be considered as no part of the case.</p>

<p>Since special pleading was abolished by St. 1836, c. 273, a tenant in a writ of entry may rely on the defence of non-tenure, &c., under the general issue of nul disseizin, on filing a specification of such defence.</p> <p>Under the Rev. Sts. e. 107, $ 8, a writ of entry to foreclose a mortgage cannot be maintained against a tenant at will, or tenant for years, if he is willing and ready to give up the possession of the mortgaged premises. But if he denies the mortgagee’s right, and refuses to give up the possession, the mortgagee may treat him as a tenant of the freehold, by disseizin, and maintain a writ of entry against him.</p>

<p>Writ of entry. Trial before Hubbard, J. who made a report thereof, which sufficiently appears in the opinion of the court.</p> <p>The case was argued at the last November term.</p>

<p>Assumpsit on the money counts, to recover the amount of two promissory notes, dated in 1840, signed by the father of the defendants, and payable to Eleanor Johnson, or order.</p> <p>At the trial in the court of common pleas, before Colby, J. it appeared that the plaintiff, in April 1841, was duly appointed administrator of the estate of said Eleanor Johnson, and that these notes were appraised as part of her property; that he settled his final account, as such administrator, in January 1842, and indorsed said notes to himself, for the purpose of transferring the property therein to himself personally; having previously paid to said Eleanor’s heirs at law all which they were entitled to receive from her estate.</p> <p>The plaintiff gave in evidence a mortgage from the defendants to their father, dated October 2d 1843, and a bond from them, of the same date, conditioned to pay their father’s debts. The attorney, who wrote the bond and mortgage, testified that when he wrote them, he had said notes in his office for collection, and had previously called upon Phinehas Foster, Jr. one of the defendants, to pay them; that said Phinehas came to his office and examined the notes, and was there told that the plaintiff would look to him for payment, as his father had divested himself of all his property; and that said Phinehas “ made little or no answer.”</p> <p>The defendants relied upon the cancellation of said bond, by an indorsement thereon, made since the commencement of this action, by their father. They also gave in evidence a release from their father to them, dated March 15th 1845, and a new bond, bearing the same date with the other, and with a similar condition, but executed after this suit was commenced.</p> <p>The judge instructed the jury that the foregoing evidence entitled the plaintiff to recover, and a verdict was returned for the plaintiff. To these instructions the defendants alleged exceptions.</p>

<p>The provision in the Rev. Sts. c. 62, § 3—that lands acquired by a testator, after the making of his will, shall pass thereby, if such shall clearly and manifestly appear, by the will, to have been his intention — applies to wills made before those statutes took effect, as well as to wills made afterwards.</p> <p>A testatrix, by a will made in 1834, devised to A. and P., and the survivor of them, his executors and administrators, all her property, including expressly the trust property which had been conveyed to A. and G. for her use, and the proceeds thereof in the hands of A.; said devise being in trust, with authority to A. and P. to pay the income to S., her nephew, and to pay the capital to S.’s children, &c. after his decease: The testatrix, in 1840, purchased land, but never republished her will. Held, that it appeared, by the will, that the testatrix, when she made it, did not intend to die intestate, as to any part of her property; that there was no reason to suppose that her intention was changed when she purchased land in 1840; and that the land, then purchased, passed to A and P., by her will.</p>

<p>This was an action for breach of the covenants in a deed made by the defendant to the plaintiff, dated January 29th 1840, giving, granting, selling and conveying to the plaintiff certain real estate which was thus described: “ All my right, title and interest in and to that parcel of real estate situate on Green Street, in Marblehead, and is bounded south-east on said street, and north-east on a line from the centre of the front yard or garden gate through the middle of the front entry, on a straight line to the back part of the dwelling-house ; then on a diagonal line,” &c. &c. by metes and bounds, courses and distances; “ the front entry of said dwelling-house to remain in common for use of the owners of said house. The premises are the same this day conveyed to said Brown by Joseph Martin.” The covenants in this deed were, that said Brown was lawfully seized in fee of the aforegranted premises; that they were free of all incumbrances ; that said Brown had good right to sell and convey the same to the said Sweet, and that he would warrant and defend the same to the said Sweet, his heirs and assigns forever, against the lawful claims and demands of all persons. The plaintiff*’s declaration alleged a breach of all these covenants.</p> <p>The case came before the court on the following report, made by Dewey, J. before whom a trial was had: The plaintiff contended that the covenants in the deed applied to certain specific parcels of real estate particularly described in said deed. The defendant contended that the deed only conveyed “all the right, title and interest” of the defendant in the premises conveyed, and that the covenants extended no further. The court proposed to rule in favor of the construction contended for by the defendant, and the plaintiff thereupon consented to become nonsuit, reserving the question for the whole court.</p>

<p>An inhabitant of a school district, who removes therefrom before the district votes to raise money for the purpose of erecting or repairing a school house, is not liable to be taxed for that purpose, although he was a member of the district on the 1st day of May next before the vote was passed.</p>

<p>This was an action of trespass upon the case, to recover expenses paid by the plaintiffs in repairing a highway, and was submitted to the court upon the following statement agreed upon by the parties :</p> <p>“ The defendants are owners of mills situate upon Cochechewick Brook, which flows from the Great Pond in Andover to Merrimack River. For the purpose of forming a reservoir of water for the use of their mills, the defendants, in 1837, erected, and have continued to this time, a dam across the meadows below the outlet of said pond, and thereby raised and kept up the water in the pond several feet above its natural height. The highway in question was located by the shore of the pond. The water, so raised by the defendants’ dam, flowed and washed said highway, and occasioned the defects and expenses which are the foundation of this action. The plaintiffs are bound to keep this highway in repair, and have been twice indicted and compelled to pay costs and make repairs for defects therein caused by the water raised by the defendants’ dam. The plaintiffs gave notice to the defendants of said defects, and of the intention to repair, before the repairs were made, and also demanded payment of the expenses from the defendants, before this suit was brought ; and the defendants refused payment. The expenses incurred by the plaintiffs, in making said repairs, were necessary and proper for them to incur. Part of the costs of repair was paid for building a bank wall upon the shore of the pond, out of the line of the location of the highway, to stop the washing away of the banks of the pond, and to protect the road against the action of the water. In those places where the wall was so built, the water was wearing away the banks of the pond, so that it would probably soon reach the boundary of the road, unless prevented. The plaintiffs claim to recover the following items of expense, which have been paid by them in this behalf, with interest from dates of payment: Cash paid Samuel F. Barker, $588-75. Expenses of committee, $47-50. Cost of indictments, $45-04. Total, $681-29. If the plaintiffs are entitled to recover in this action, judgment is to be rendered for them, as the court shall direct; and if the parties cannot agree upon the sum, the court may appoint an assessor to determine the same. If the plaintiffs are not entitled to recover any of said items, then judgment is to be rendered for the defendants.”</p>

<p>The maker of a note for three thousand dollars, payable in one year, with interest semiannually, paid a bonus of ninety dollars, at the time of giving the note, and also made one semiannual payment of interest before the note became due: In an action on the note, the jury found that the contract was usurious, and that the amount of the usury was ninety dollars. Held, that the forfeiture to be deducted, under the Rev. Sts. c. 35, § 2, was eight hundred and ten dollars, being threefold the amount of the bonus and of the lawful interest for one year.</p>

<p>Assumpsit for money laid out and expended. The action was brought to recover double the value of a partition fence built by the plaintiff, after fence viewei^, pursuant to the Rev. Sts. c. 19, had directed the defendant to build it, and he had neglected so to do.</p> <p>At the trial in the court of common pleas, before Wells, O. J. it appeared that the plaintiff and defendant were occupants of adjoining lands in Ipswich, and that, in 1827, a division of the line between them was made in writing by fence viewers, who assigned to each party his share of the partition fence. The defendant offered to prove that both parties then believed that they owned, on their respective sides of this line, down to low water mark, and that since that assignment, it had been decided by the supreme judicial court, (Brown v. Lakeman, 15 Pick. 151, and 17 Pick. 444,) that all the land lying between high and low water mark, on the defendant’s side of said line, was and is the property of the plaintiff, and that the aforesaid division and assignment, in accordance with the rights of the parties, as then believed to exist, are not legal nor equitable, nor binding on the defendant. But the judge ruled that the evidence was inadmissible.</p> <p>It also appeared that, in 1843, the plaintiff complained to ihe fence viewers of Ipswich that the defendant refused to repair his part of the aforesaid partition fence ; that the fence viewers, after due notice to the parties, surveyed the defendant’s fence, determined that it was insufficient, signified the same to the defendant in writing, and directed him to repair or rebuild the fence within ten days; that the defendant neglected to repair or rebuild the fence within the time thus prescribed; that the plaintiff afterwards rebuilt it; that the fence viewers adjudged it to be sufficient, and gave a certificate of the value thereof, under their hands ; and that the plaintiff, more than one month before this action was commenced, demanded of the defendant double the sum ascertained by the fence viewers to be the value of the said fence, together with the fence viewers’ fees.</p> <p>The defendant offered to prove that the adjudication of the fence viewers that the fence built by the plaintiff was legal and sufficient, was incorrect and untrue; that some part of the soil, on which this fence was built, was boggy and muddy, and some part of it shifting sand, and that said fence was in no respect legal and sufficient. But the judge ruled that the adjudication and return of the fence viewers were conclusive, so far as they were made bona fide, and that their judgment as to the value and sufficiency of the fence could not be shown to be erroneous.</p> <p>The defendant also offered to prove that, at the time when the fence viewers were called by the plaintiff and acted, the plaintiff’s fence, on his part of the line, was wholly insufficient ; and the defendant contended that the plaintiff, before he could maintain this action, must show that his own part of the fence was sufficient. But this evidence was excluded by the judge, and he ruled that it was not necessary for the plaintiff to show that his own fence was sufficient.</p> <p>The jury found a verdict for the plaintiff, and the defendant alleged exceptions to the rulings of the judge.</p>

<p>The notice which a person who impounds beasts is required by Her. Sts. c. 113, § 8, to give tu the owner of them, within twenty four hours, need not state the hour of the day when they were impounded. And proof that notice was left in the hands of one of the owner’s family, at his dwelling-house, is sufficient to authorize a jury to find that it was left at his place of abode.</p> <p>A field driver, who impounds beasts for going at large on a public highway, is not bound, by ¡Rev. Sts. c. 113, § 6, to leave with the pound keeper a memorandum, stating the cause of the impounding and the sum that he demands from the owner.</p> <p>Xt is no objection to the notice required, by Rev. Sts. c. 113, § 8, to be given by a field driver to the owner of impounded cattle, that the field driver’s name is signed by another person, if it be done at the field driver’s request.</p> <p>In an action of replevin brought against a field driver by the owner of cattle impounded by him for going at large, the defendant may show in evidence not only that he gave the plaintiff the notice required by Rev. Sts. &. 113, § 8, but also that he posted notices iccording to the provisions of $ 9. But the plaintiff cannot give evidence that the cattle were not suitably provided for, or were ill treated in the pound.</p> <p>A notice given by a field driver to the owner of cattle, that they are impounded for going at large on the public highway, is prima facie evidence that they were so at targe, and puts on the owner the burden of proving the contrary.</p> <p>A turnpike is a public highway, within the meaning of Rev. Sts. c. 19, § 22, which require field drivers to take up and impound cattle going at large in the public highways.</p>

<p>When selectmen refuse to lay out a way, and application is thereupon made to the county commissioners to lay it out, they have jurisdiction of such application, and may proceed thereon, although the selectmen, in the petition to them, were requested to discontinue an old way, (which they had no authority to do,) as well as to lay out a new one.</p> <p>When a town way is laid out by county commissioners over land which A. has con veyed to B. by a deed not recorded, and B. does not make known to the commissioners his title and claim for damages, although he has an opportunity so to do, and they award damages to A. and not to B., a writ of certiorari will not be issued, on the petition of B., for the purpose of quashing the commissioners* proceedings.</p>

<p>The list of estates, real and personal, which the inhabitants of towns are required to present to assessors, before an assessment of taxes is made, is not intended to contain a statement of the estimated value of the property; and if the list contains a statement of the value, such statement is not, by § 22 of that chapter, conclusive on the assessors; but they are to exercise their own judgment in estimating the value of the property.</p>

<p>On a trial for perjury, the testimony of a single witness is sufficient to prove that the defendant swore as is alleged in the indictment.</p> <p>When a party is indicted for perjury in giving testimony on the trial of an issue in court, proof that his testimony was admitted on that trial is not sufficient to warrant a jury, upon the trial of the indictment, to infer that such testimony was material to the issue.</p> <p>Perjury may be committed by wilfully false swearing in a point which is only circumstantially material to the question in dispute.</p>

<p>The St. of 1817, c. 171, § 10, which imposes a penalty on “ any" person who shall smoke, or have in his possession, any lighted pipe or cigar, in any street, lane or passage way ” in Boston, applies to all open ways, used as such, although they may not be legally established as public ways.</p>

<p>The law does not require that a police officer for the city of Boston, appointed put suant to St. 1838, c. 123, should he sworn to the faithful discharge of the duties of his office; and therefore a party indicted for assaulting such police officer, and obstructing him in the discharge of the duties of his office, cannot defend by showing that he had never been sworn.</p>

<p>The indictment against- the defendant alleged that he, on the 5th of September 1846, at Boston, in the shop of Joseph Thompson, took, stole and carried away one bag, and sundry pieces of silver and copper coin, the property of Barzillai Russell, in his possession and on his person.</p> <p>At the trial in the municipal court, before Cushing, J. Russell was not called as a witness. John S. Brewer was called by the attorney for the Commonwealth, and testified that he was in one of the watch houses, in Boston, between eleven and twelve o’clock in the evening of September 5th 1846, and that while he was there two of the watchmen of the city, having the defendant in custody, came in; that one of the watchmen said, “ here is a man that has been robbing a man; ” that presently Russell, the person named in the indictment as having been robbed, came in crying, and said, “ that man ” pointing to the defendant, “ has stolen my money; ” that the other watchman, named Baxter, made a search of the defendant’s person, but found nothing, and was proceeding to lock him up in the cellar ; that as the defendant was going down cellar, the witness saw him put his hands up, turn himself, and shove something between a water bucket and a little earthen pot, that stood on a shelf built up in the corner of the watch house; that the witness then got up from his seat, looked at the place where the defendant had put his hands, and saw a bag, which he took up, and thereupon said, “ here is the bag; ” the defendant then being on the stairs, going down cellar, and within hearing ; that Russell immediately said, “ that is my bag ; ” that Baxter then took the bag, and counted the money in it; and that while Baxter was counting the money—the defendant then standing in the watch house — Russell said, “ that was all the money I had in the world; ” and that the defendant made no reply to any of the aforesaid declarations.</p> <p>The defendant’s counsel objected to the admission of the declarations of Russell, on the ground that the testimony of Russell himself was the best evidence, and that the defendant was entitled to it, and to the right of cross-examining him. The judge admitted the declarations of Russell, as above reported." The defendant was found guilty by the jury, and alleged exceptions.</p>

<p>Charles Smith and Hiram Underwood were jointly indicted for breaking and entering a dwelling-house, in the day time, with intent to commit larceny therein. Underwood pleaded guilty, and Smith pleaded not guilty. At the trial of Smith, in the municipal court, before Wells, C. J. the prosecuting attorney, after the evidence for the defence was closed, offered Underwood, who had not been sentenced nor discharged, as a witness for the Commonwealth. The counsel of Smith objected to the admission of Underwood’s testimony, on the ground that he was still a party to the record, and therefore incompetent to testify. This objection was overruled, and Underwood’s testimony was admitted. The jury found Smith guilty, and he alleged exceptions.</p>

<p>This was a writ of error to reverse a judgment of the court of common pleas, rendered at May term 1844, in the county of Worcester, by which the plaintiffs in error were sentenced to confinement in the state prison.</p> <p>The indictment, on which the plaintiffs in error were convicted, alleged that they, on the night of the 15th of August 1843, at Millbury in the county of Worcester, with force and arms, “ the office of the president, directors and company of the Millbury Bank, a corporation duly and legally established there situate, feloniously and burglariously, did break and enter, with intent the goods, chattels and moneys of said corporation, in said office then and there being, then and there feloniously and burglariously to steal, take and carry away, and divers bank bills, amounting in the whole to the sum of seventeen thousand dollars, and of the value of seventeen thousand dollars, of the goods and chattels and moneys of said corporation, in the office aforesaid, then and there being found, then and there feloniously and burglariously did steal, take and carry away, in the office aforesaid, against the peace of the Commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>The assignment of errors was as follows: “ That the indictment, upon which said judgment was founded, is materially defective, in that it does not specify, in the words of the statutes, whether the office therein mentioned was adjoining, or not adjoining, to a dwelling-house : That said indictment is materially defective, in that it does not specify either numbers, kind, or separate value, of the articles, therein averred to have been stolen : That said judgment is generally erroneous and void.”</p>

<p>It is not required by the Bev. Sts. c. 126, § 19, that the court, in order to warrant the sentence therein prescribed for a person convicted of larceny, who has been previously convicted of the like offence, should adjudge him, in terms, to be a common and notorious thief.</p>

<p>The plaintiff set forth, in a hill in equity, that he was executor of the last will of Edward Tuckerman, late of Boston, which was proved and allowed on the 19th day of June 1843; that said Tuckerman, by his said will, made the following bequest: “ To the wardens and vestry of St. Paul’s Church in Boston I bequeath five thousand dollars, to be received and held by the legatees, as the formation of a fund which l am desirous should be established for the sup, port of a city missionary of the Protestant Episcopal Church; ” that the plaintiff was provided with the means requisite for the payment of said bequest to said wardens and vestry; that St. Paul’s Church in Boston was incorporated, as a religious society, by St. 1819, c. 77, under the name of “the proprietors of St. Paul’s Church in Boston,” and that said corporation claimed from the plaintiff the payment of said legacy of five thousand dollars, so as aforesaid given to the wardens and vestry of said church; that said wardens and vestry declared themselves to be a body distinct from the proprietors of St. Paul’s Church, and asserted and' claimed a right to have payment of said legacy made to them ; that the children of said Tuckerman, and the trustees to whom he devised the residue of his property, for the benefit of said children, claimed and insisted that neither said corporation. nor said wardens and vestry, were entitled to recover said legacy, and denied their capacity to take said sum, and then power to execute the trust, for the performance of which said legacy was made, and further claimed that the plaintiff should pay said sum to said trustees.</p> <p>The plaintiff further averred that he was desirous to pay said sum to the parties legally entitled to receive it, but was unwilling, at his own hazard and peril, to decide to whom, as between the said opposing claimants, the said legacy belongs. He therefore prayed that, to the end that the right and claim of said corporation, of said children of said testator, and of said trustees, in and to said legacy, might be settled and determined by a decree of this court, the said parties might interplead among themselves, according to law and equity, to determine their respective claims to the payment of said legacy.</p> <p>The parties to the bill, who were made defendants, appeared and filed their several pleas.</p>

<p>This ivas a writ of entry to recover a parcel of land in South Boston, and was submitted to the court on the agreed statement of facts which follows:</p> <p>Isaac C. Pray, on the 8th of June 1833, duly made his last will, by which, after providing for the payment of his debts, he made the following disposition of his property: “ All the rest and residue of my estate, real and personal, of Avhich I may die seized and possessed, or to which I may be in any way entitled, of whatsoever the same may consist, or wheresoever it may he situate, I give, devise and bequeath unto Robert Waterston and Henry Rice, merchants, and Francis O. Watts, Esquire, all of Boston; to have and to hold the same to and to the use of them, the survivors and survivor of them, their heirs, executors and administrators and assigns, in trust, nevertheless, for the uses and purposes hereinafter expressed, and to and for no other use, intent or purpose whatsoever ; that is to say,” &c.</p> <p>Since the decease of said Pray, the tenants have entered upon the demanded premises, and claim to hold the same in fee simple, in trust for the uses and purposes declared in said will.</p> <p>At the time of executing this will, said Pray had a wife, Martha Pray, and several children, no one of whom was living at the time of his decease, with the exception of two sons, his only heirs at law, who are the demandants in this action.</p> <p>After the death of Mrs. Pray, above mentioned, the testator married a second wife, who survives, by whom he never had issue.</p> <p>The testator died on the 23d day of January 18 46, and his said will was duly proved and allowed at a probate court held at Boston, on the 20th day of April 1846. The tenants were therein named as executors, as well as trustees, and all of them accepted the trust, as trustees, and two of them, Messrs. Waterston and Watts, that of executors.</p> <p>At the time of executing said will, said Pray was the owner of real estate, all in Massachusetts, and the greater part, and, as is believed, the whole of which elsewhere, was sold before his decease. His title to the demanded premises, as well as to other real estate, was acquired after said will was made, and after the revised statutes went into operation.</p> <p>On the foregoing facts, the parties agreed that if the court should be of opinion that the demanded premises did not pass by the said will, the tenants should be defaulted, and judgment be rendered for the demandants to recover possession ; otherwise, that they should become nonsuit.</p>

<p>When the plaintiff, in an action of assumpsit, amends his writ and declaration, whether at the first term or afterwards, by striking out the names of part of the defendants, according to the provisions of Rev. Sts. o. 100, the remaining defendant or defendants may plead the nonjoinder of the other or others in abatement, and can take advantage of such nonjoinder in no other way.</p>

<p>This was an action of assumpsit, commenced on the 24th of September 1845, by the payee against the maker of two promissory notes; one dated April 24th 1835, for $567-70 ; the other dated July 15th 1835, for $162-74 ; and each payable in six months from date.</p> <p>It was in evidence, at the trial in the court of common pleas, before Washburn, J. that the defendant, after the making of the notes, until September 1836, was and continued to be an inhabitant and resident of this State; and that, in September 1836, he departed from the State, and remained absent therefrom, until the spring of 1845.</p> <p>The defendant relied on the statute of limitations; but the judge instructed the jury that the action was not barred by that statute. A verdict was returned for the plaintiff, and the defendant alleged exceptions to the judge’s instruction.</p>

<p>In a suit by the payee against the maker of a promissory note, made payable anso lutely, the defendant cannot give evidence, in defence, that he took property of the plaintiff, at his request, to sell and dispose of, as if it were his own, and sold it to A., and took A.’s note therefor, which note he had not collected, and could not collect, and that he gave to the plaintiff the note in suit, upon an oral agreement between him and the plaintiff, that said note was not to be paid unless the defendant should collect A.’s note: Such evidence is not admissible to prove that a condition was annexed to the payment of the note, and has nc tendency to show want of consideration, or failure of consideration.</p>

<p>An officer who enters a house by authority of law, and attaches goods therein, becomes a trespasser ab initio by placing there an unfit person, as keeper of the goods, against the remonstrance of the owner of the house.</p>

<p>An action of trespass cannot be maintained against the master of a vessel, for carrying to sea an officer who went on board to arrest a person, just as the vessel was leaving the wharf, if the plaintiff did not use due diligence to get on shore, after receiving due notice that the vessel’s fasts were about to be cast off, and that all persons not belonging on board must leave her.</p> <p>In such action against'the master of a vessel, when the facts are in dispute, the question whether the plaintiff used due diligence in making the arrest, and in attempting to get on shore, is to be decided by the jury.</p> <p>In such action, the pilot is a competent witness to prove that he got the vessel off; that, in so doing, he acted under the direction of the owner; and that the master had no agency in the matter: And it is for the jury to decide who had the direction and control of the vessel, at the time when the alleged trespass was committed on the plaintiff.</p> <p>It is within the discretion of a judge, in a case in which there are several grounds of claim or defence, to inquire of a jury upon what facts their verdict was found.</p>

<p>Assumpsit, to recover for three months and one day’s service rendered to the defendant, on her farm, at twelve dollars per month. Trial in the court of common pleas, before Merrick, J. on the general issue, without any specification of defence.</p> <p>The only evidence in the case was the deposition of John Q,. A. Street, the defendant’s son, which was taken by the defendant and filed, and was used by the plaintiff to prove his claim.</p> <p>The defendant set up, as a defence, that her contract with the plaintiff was for an entire service for seven months, and that he was not entitled to any wages, because he had not performed his contract.</p> <p>The material part of the aforesaid deposition was as follows : “ Lot Davis came to my mother, Ann Maxwell, on the ninth of April last, [1844,] to hire himself to work on her farm in Waltham, and he said he would sooner work for her at twelve dollars per month, than work on a milk farm foi thirteen dollars per month. The bargain was then made for seven months, at twelve dollars per month, and he came to work in the afternoon. After that, I have repeatedly heard him say that he was going to stay with my mothei seven months, at twelve dollars a month. He staid with hex three months and seven days, having been absent between five and six days during that time. I do not know his motive for leaving; but he told my mother, on the day he left, that he was going to look for work. She replied that there was work enough there for him to do. He then said that if she did not secure his wages to him, he would not work any longer. My mother then went into the house, and he asked me if he could leave his clothes. I told him yes, and he then went away. My mother told him that she should not pay him any wages, if he left.” In answer to the plaintiff’s question, whether the defendant paid him for his first month’s woi’k, the deponent said, “ she has paid altogether, I believe, about twelve or thirteen dollars.” And in reply to the plaintiff’s question, whether he had ever requested the defendant to pay him any thing towards his wages, besides the twelve or thirteen dollars, the deponent said, “ I do not know. He had said, repeatedly, that she agreed to pay him five dollars per month; but I did not hear that part cf the engagement.”</p> <p>It was admitted by the plaintiff, that the defendant had paid him the sum of twelve dollars and forty five cents.</p> <p>The plaintiff contended that the defence set up was special, and could not be proved under the general issue, without a written specification; that the evidence showed a contract, on the part of the defendant, to pay the plaintiff twelve dollars at the end of each month’s service, and also showed ? breach of that contract; and that there was evidence tending to show a special contract, on the part of the defendant, to pay the plaintiff five dollars of his wages at the end of each month, and a breach of that contract.</p> <p>The judge ruled that the contract, as stated in the deposition, was entire, and could be taken advantage of under the general issue, upon the proof offered by the plaintiff; and that the deposition contained no evidence of a special contract, on the part of the defendant, to pay the plaintiff five dollars at the end of each month.</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions to the judge’s ruling.</p>

<p>The owner of a dog that injures a minor child, so that the parent, by reason of such injury, loses the child’s services, and is put to expense for his cure, is liable to the parent, under Rev. Sts. c. 58, § 13, for double the damages by him thus sustained.</p>

<p>C. and D. agreed to submit all disputed claims between them to the final award of B., and to abide by his decision; and that if B. should decline to act alone, as referee, he might select one or two other referees to act with him; and that if he should decline altogether, the matters should be referred to such person or persons as he should select: B. declined to act, and appointed G., H. and I. as referees, on the 23d of March, of which appointment C. and D. had immediate notice, and G., as chairman of said referees, called on D., and informed him that the referees had agreed to hear the parties, in the afternoon of that day: D. told G. that he could not attend to the business on that day; and G. told D. that H. and I. could not attend at any other time, and that other referees would have to be appointed in their place; to which D. made no objection nor reply: On the next day, G. gave notice to D. that the hearing would be on the 27th of March, at a certain place: On said 27th of March, H. and I. were not present at the appointed place, and B., at the request of C. and G., appointed K. and L. as referees in their stead: G., K. and L. thereupon proceeded to hear C., in the absence of D., and made an award in C.’s favor. Held, that D. was not bound by the award.</p>

<p>Assumpsit on this note: “ Boston, November 19, 1830. Value received, I promise to pay John Eliot Thayer, or order, three thousand two hundred and thirty six dollars and fifty four cents, on demand, with interest. Le Baron Putnam.</p> <p>Witness: Thomas C. Healy.”</p> <p>At the trial in the court of common pleas, before Merrickt J. the following facts appeared in evidence :</p> <p>Certain collateral security was given to secure the payment of the note in suit, for which the following receipt was given by the plaintiff: “ Boston November 19, 1830. I hold, as collateral security for the payment of Le Baron Putnam’s note of this day, payable on demand, with interest, for three thousand two hundred and thirty six dollars and fifty four cents, the following: John Clark and Charles Bradley’s certificate, as assignees of L. Putnam, dated February 11, 1829, for nineteen hundred and twenty three dollars and twenty two cents, payable on certain conditions. Also Braman and Benedict’s draft on Walter, Putnam and Torrey, dated December 27,1828, at four months date, for two thousand dollars, which was protested for non-acceptance February 1829, which is indorsed Perez B. Wolcott. Also Spring and Whidden’s note, dated October 28, 1828, payable in eight months, for three hundred and ninety five dollars and sixty one cents. Also Spring and Whidden’s note, October 28, 1828, payable in seven months, for four hundred and thirty seven dollars and forty cents. I am to sell or collect the above, and indorse the proceeds on his note due me.</p> <p>Jno. Eliot Thayer.”</p> <p>Afterwards, the writing which follows was given by the defendant to the plaintiff: “ Mr. John E. Thayer. Sir, 1 hereby give you the right to compromise with Spring andWhidden for the notes of theirs you hold as collateral, for fifty cents on the dollar j and also to take five hundred dollars for the draft of Braman and Benedict for two thousand dollars.</p> <p>Le Baron Putnam.”</p> <p>The plaintiff on the 8th of April 1831, recovered four hundred and twenty five dollars for the notes of Spring and Whidden; and on the 24th of April 1832, four hundred dollars for the draft of Braman and Benedict.</p> <p>The plaintiff tendered in court, to the defendant, the certificate for a dividend from his estate, on a claim for one thousand nine hundred and twenty three dollars and twenty two cents, which was signed by his assignees ; nothing having been received thereon.</p> <p>The defendant waived all ground of defence, except the fact that the plaintiff took four hundred dollars for Braman and Benedict’s draft.</p> <p>The plaintiff then, with the consent of the judge, indorsed upon the note in suit four hundred and twenty five dollars, as received on the 8th of April 1831, and five hundred dollars, as received on the 24th of April 1832, and claimed judgment on the note so indorsed. A statement of facts was then prepared, containing the evidence herein before set forth, for the ruling of the judge thereon; and he entered judgment for the plaintiff for the amount of the note declared on and interest, deducting the sums indorsed. From that judgment the defendant appealed to this court.</p>

<p>Trespass for taking and carrying away the plaintiff’s hay and grass from a lot of land belonging to the East Boston Company. At the trial in the court of common pleas, before Ward, J. the plaintiff produced a written lease of said lot of land, dated May 8th 1844, made by the agent of said company to E. Dow, “ for the season ; ” and then gave evidence of a sale to him, by said Dow, of the said hay and grass, and of the taking and carrying away thereof by the defendant, on the 4th, 5th, and 6th of July 1844.</p> <p>The defendant then introduced evidence tending to prove that, in March 1844, the said agent of said company orally leased the same land to the defendant for the same term, (“ for the season,”) and that the defendant entered on the land, and cultivated a part of it, and repaired the fences.</p> <p>The plaintiff introduced evidence tending to rebut the evidence of the said oral letting, and also tending to show that, at about the date of the written lease, said Dow entered upon the land, ordered away the defendant’s servants, who were at work there, and gave notice to them of his lease. And there was no evidence that the defendant again entered upon the land, until July 4th 1844.</p> <p>The authority off the said agent of the East Boston Company to make an oral lease of said land was not denied by the plaintiff. He contended, however, that the written lease to Dow annulled the prior oral lease to the defendant, if any such' were ever made. But the judge ruled otherwise, and instructed the jury, first, that if the defendant had, in March, received an oral lease of the land, and entered under such lease, and had never abandoned nor surrendered his lease or interest in the land, he was entitled to a verdict; and secondly, that if the defendant had, in March, an oral lease, and entered and occupied under it until May, and then received notice of the written lease to Dow, and thereupon surrendered his oral lease, and relinquished the premises to Dow, with intent to yield up his right of possession, he could not afterwards resume his possession.</p> <p>The jury returned a verdict for the defendant, and the plaintiff thereupon alleged exceptions to the foregoing instructions.</p>

<p>This was an action on a promissory note made by the defendant, on the 10th of April 1842, for six hundred dollars, payable to Erastus Clark, or order, on demand, with interest, and indorsed by said Clark to the plaintiffs.</p> <p>The case was originally tried in the ' court of common pleas, at July term 1843, where the defendant filed a set-off of a judgment for six hundred and eighty five dollars and costs, recovered by him against said Clark at the June term of the court of common pleas, held at Worcester, in 1842, on two notes given to him by Clark. This set-off was disallowed by the' court of common pleas, and the case was brought into this court, by the defendant, on a bill of exceptions. The exceptions were sustained,-and a new trial was granted. 9 Met. 367.</p> <p>At the new trial, before Wilde, J. the plaintiffs introduced the deposition of Clark, which was to the effect following : That he, (said Clark,) in 1840, bought of Seth Caldwell a farm in Barre, for which he agreed to pay nine thousand dollars ; that he paid one thousand dollars, and gave his note fci eight thousand dollars, payable by instalments; that' he applied to the defendant, whom he owed seventy dollars, to lend him six hundred dollars, which he wished to pay to said Caldwell; that the defendant, not having money, gave the deponent the note now in suit, and the deponent gave the defendant a note for the same amount, and secured payment thereof, and of the seventy dollars before due to the defendant, by a mortgage of the deponent’s personal property ; -that he offered the defendant’s said note to Caldwell, who refused to receive it as payment of six hundred dollars, and shortly afterwards sued the deponent and attached the property, which he had mortgaged, as aforesaid, to the defendant, and advertised it for sale; that the defendant gave notice to Caldwell of said mortgage, before the day appointed for the said sale, but that a sale of part of said property was made without payment of the defendant’s demand for securing which it was mortgaged; that Caldwell afterwards obtained judgment against the deponent, in the suit on which said attachment was made, and caused the residue of said attached property to be sold on execution; that the defendant afterward sued the deponent, and recovered judgment against him on the six hundred dollar note, and the seventy dollar debt, for which said mortgage was given; that the defendant afterwards told the deponent that he (the defendant) had sued Caldwell for taking the said mortgaged property, and that Caldwell had settled with him by paying the seventy dollars, and giving him an indemnity against his six hundred dollar note, now in suit; that the deponent subsequently bought of Seth Holden, who was the agent of the plaintiffs, one undivided half of the right to make and sell, in the State of Illinois, a corn-planter, a machine invented by the plaintiffs, and gave to said Holden, in payment therefor, the said note now in suit, on receiving a deed of said right; having first stated to said Holden the circumstances under which the deponent obtained the note.</p> <p>The plaintiffs introduced a copy of the mortgage of Clark’s personal property to Brooks, spoken of in Clark’s deposition. They also showed, by testimony, that Caldwell’s attachment of Clark’s goods was made on the 12th of April 1842; that the said goods were soon after appraised, and a portion of them sold as perishable, and the proceeds of the sale paid to Caldwell,1 and that, among the goods so sold were those which Clark had "mortgaged to the defendant — the proceeds of which were received by Caldwell, and amounted to more than Clark’s two notes to the defendant.</p> <p>The plaintiffs called Seth Holden, as a witness, who testified that, in the summer of 1843, the defendant told him, in Boston, that Caldwell had paid him the seventy dollar note, and indemnified him against the six hundred dollar note, and' that he Had no interest in this suit; and that, in the spring of 1844, the witness again saw the defendant in Salem, and that he then made the same statement to the witness, which he had before made in Boston.</p> <p>It appeared that the defendant’s suit against Caldwell, mentioned in Clark’s deposition, was never entered in court.</p> <p>The bond of Caldwell, indemnifying the defendant against the six hundred dollar note, was dated March 7th 1843, and the condition thereof was as follows: “ Whereas the said Brooks did, on or about the tenth day of April last, give his promissory note to one Erastus Clark, in the sum of six hundred dollars, and said note is now outstanding, in the hands of said Clark, or some one to whom it may have been negotiated, and said Brooks may be called upon by said Clark, or some other person or persons, to pay the same, or to incur expense and trouble in defending against it; now, if the said Caldwell shall indemnify and save said Brooks harmless from said note, and shall pay to him all damage, costs, expense and trouble, to which he may be subjected in consequence of his liability to pay said note, or that may come upon him by reason of said note, then this obligation shall be void; otherwise, to remain in full force.”</p> <p>The case was taken from the jury, by consent of the paries, who agreed to refer it to the decision of the whole court, apon the foregoing evidence.</p>

<p>This was an action of trespass, to recover the value of personal property, which was seized and sold by the defendant, a deputy sheriff in the county of Norfolk, on an execution in favor of David O’Brien.</p> <p>It appeared in evidence, on a trial in the court of common pleas, before Merrick, J. that said property was mortgaged to the plaintiffs, by a deed dated February 2d 1843, and recorded on the 10th of March following ; that the mortgage was made without the request or knowledge of the plaintiffs ; that, at the request of the mortgagor, a person employed y dim took a list of the mortgagees, (who were about twenty tn number,) and saw them on the 7th of April 1843, and informed them of the mortgage, and that they, without seeing the instrument, said they would accept it; that the said property was seized on execution, by the defendant, on the 11th of April 1843, and was sold on the 25th of the same month ; that some of the plaintiffs gave the defendant notice of their mortgage, and demanded payment of the money due thereon, on the 15th of February 1844, and the others on the 9th of March 1844, agreeably to the Rev. Sts. c. 90.</p> <p>The defendant’s counsel contended, that as no evidence had been given of any notice to take possession of the property, or to foreclose the mortgage by the plaintiffs, agreeably to St. 1843, c. 72, the plaintiffs could not maintain trespass. The defendant’s counsel also objected to the sufficiency of the notice, on account of its having been given ten months after the time when he sold the property.</p> <p>The judge instructed the jury, on both points, in favor of the defendant, and directed a verdict for him, which was returned accordingly. The plaintiffs excepted to the said instructions.</p>

<p>Assumpsit on a promissory note, dated November 15th 1843, signed by the defendant, for the sum of two hundred dollars, payable to Charles Beaumont or order in ninety days from date, and indorsed by him to S. C. Bugbee, and by said Bugbee to the plaintiffs.</p> <p>The trial was in the court of common pleas, before Ward, S. where the defence was, that the note was given by the defendant to Beaumont, and by him indorsed to Bugbee, without consideration, and for the accommodation of Bugbee ; and that it was transferred by Bugbee to the plaintiffs after it was overdue.</p> <p>The defendant called Beaumont, the promisee, as a witness; and he testified that he and his wife, for a certain sum, had conveyed certain land, on Jamaica Plain, to the defendant, he agreeing to allow the witness to negotiate sales of it, and to receive to himself what he could sell it for beyond the sum for which he had conveyed it to the defendant: That the witness accordingly negotiated the sale, to Bugbee, of a parcel of said land, at four cents per foot; the same having been conveyed to the defendant, by the witness, for three cents per foot; making a difference of six or seven hundred dollars; and that the defendant accordingly conveyed the same to Bugbee, and took back a mortgage to secure the purchase money. But the witness testified that he had released the defendant from his engagement, so far as it concerned the lot sold to Bugbee, before the making of the note in question.</p> <p>It appeared that the witness, Beaumont, owned a tract of land adjoining to the lot which Bugbee purchased, and that he, to induce Bugbee to make said purchase, and to build a house on said lot, (which the witness believed would benefit his own adjoining tract,) promised Bugbee that, if he would buy the land and build the house, the witness would lend him, to aid in building said house, four hundred dollars, to be repaid out of the proceeds of the sale of it. And it appeared from the testimony of Bugbee, that he would not have made the purchase and undertaken the enterprise without said promise of Beaumont.</p> <p>It also appeared in evidence, that Bugbee began to build the house, and that Beaumont, when Bugbee called on him for part of the money which he had agreed to lend him, said he had not the money on hand, but would procure the note of Shepherd, the defendant, and let Bugbee have it instead of the money : That Bugbee agreed to take Shepherd’s note, and that it was procured by Beaumont, and indorsed by him, in blank, and given to Bugbee instead of the money which Beaumont had agreed to lend, as aforesaid; and that Bugbee gave the following receipt therefor: “Nov. 15th 1843. Received of Charles Beaumont two hundred dollars, by Wm. Shepherd’s promissory note at ninety days after date, made payable to and indorsed by said Beaumont; which amount I hereby promise and engage to account for out of the proceeds of a house which I am now building on the Lakeville estate, being on that portion thereof,” &c. “ purchased by me.</p> <p>S. C. Bugbee.”</p> <p>Beaumont also testified that the defendant received no consideration for said note, and that if he should be obliged to pay it, he (Beaumont) would be bound to repay him.</p> <p>It appeared that Bugbee indorsed the note in blank, and procured the note to be discounted; that, at its maturity, it was protested for non-payment; and that Bugbee, as second indorser, took it up, and afterwards transferred it to the plaintiffs, to pay for work on said house.</p> <p>It also appeared that Beaumont, after said note was given to Bugbee, let him have one hundred and fifty or two hundred dollars in cash, according to the agreement above mentioned, for which Bugbee gave him a receipt, on the same paper upon which the former receipt was written, as follows “ Nov. 29th 1843. In consideration of the further sum of one hundred and fifty dollars to me this day loaned by Charles Beaumont, I hereby engage to proceed with erecting the house above alluded to, and repay him out of the proceeds of sale thereof. S. C. Bugbee.”</p> <p>It was admitted that said house had not been sold at the time of the trial.</p> <p>The judge instructed the jury, “first, that the note having been taken by the plaintiffs from Bugbee, after it became due, they took it subject to all the objections and equities to which it was liable in the hands of Bugbee ; and secondly, that if the note was made for the accommodation of Bugbee, the plaintiffs could not recover; but if Beaumont procured the note from Shepherd, (the defendant,) and indorsed and transferred it to Bugbee, before it became due, in pursuance of, or in payment of, a valid engagement by him to lend Bugbee money, to be paid out of the proceeds of the sale of said house, and in payment of work done by the plaintiffs thereon, the note could not be construed as coming within the rule of law as to accommodation notes, without a consideration, negotiated when overdue, and the verdict must be for the plaintiffs, although it might have been made by Shepherd to Beaumont for his accommodation, without consideration.”</p> <p>The defendant’s counsel requested the judge to instruct the jury, that if Shepherd, when he gave the note, was ignorant of the promise or engagement of Beaumont to Bugbee, above stated, their verdict should be for the defendant. But the judge directed the jury, that “ if Shepherd was a party to the agreement with Bugbee, and gave said note, to be transferred to Bugbee as a substitute for money, as aforesaid, and to be repaid as aforesaid, and the note was' transferred to the plaintiffs, as aforesaid, before the sale of the house, they were entitled to recover; but if the note was made by Shepherd, for the accommodation of Bugbee, without knowledge of, and assent to, the agreement in respect to the payment out of the proceeds of the sale of said house, the plaintiffs could not recover.”</p> <p>A verdict was found for the plaintiffs, and the defendant alleged exceptions to the judge’s instructions.</p>

<p>The plaintiff alleged in a bill in equity, that James Wilson, late of Boston, died intestate, on the 10th day of January" 1842, possessed of personal estate of great value, which by law descended to Martha, his wife, (now Martha Leishman wife of John Leishman,) Thomas P. Wilson, only surviving child of said James, and the plaintiff, only child of Elizabeth P. Wilson, a deceased daughter of said James ; the said Martha, Thomas P. and the plaintiff being the only persons interested in said deceased’s estate, and each of them entitled to one third part thereof: That in the year 1842, Phinehas Capen was appointed administrator of the estate of said James, and proceeded to administer the same, and filed an inventory thereof, in which it was stated that certain sums of money, belonging to said estate, were in the hands of said Martha: That the said James, at the time of his decease, was entitled to various sums of money, deposited by him, or for his account, in the Savings Banks in Boston, and elsewhere, in the name of Grace Dunlap, trustee, and in the names of other persons known only to said James and said Martha; and that said Martha, intending to appropriate' the same to her own use, refused to inform said Capen concerning the same, and would not suffer him to obtain the same; and that he was unable to obtain or discover the sam.e: That said Thomas P. thereupon caused proceedings to be commenced for an account and recovery of said sums of money, and that a settlement w2as made between him and said Martha and said Leishman, whereby said Thomas P., in consideration of receiving five hundred and seventy five dollars, to him paid, agreed to release said Martha and John from all further claim on account of said sums of money: That the plaintiff had no knowledge of said transactions at the time thereof; and that said Capen then had no knowledge of the plaintiff’s existence, and that he.assented to said settlement, in the belief that said John and Martha Leishman and said Thomas P. Wilson were the only persons interested in the estate of said James : That said Capen, on the 15th day of May 1845, presented the first account of his administration of said James’s estate, for allowance, wherein he charged himself with certain small sums of money received from sales of furniture and stocks, (but made no mention of said sums of money referred to in the inventory returned by him,) and prayed allowance for moneys paid to said Martha and Thomas P., and for debts and expenses.</p> <p>The bill also averred that the plaintiff did not know in whose names the aforesaid sums of money were deposited, nor the amount thereof, but that she believed the same were collected by said Martha, or by said John and Martha, and that the amount thereof was five thousand dollars; that the plaintiff was entitled to one third part of said sum, and that said one third part thereof was held in trust for her, by said John and Martha; that the plaintiff was also entitled to one third part of the balance of the aforesaid administration account; that she had requested said Capen to collect said sums of money, and to account therefor, and pay her portion to her; and that she had also requested said John and Martha to account with her, and pay to her one third part of said sums of money; but that they had refused so to do, and that they and said Capen had refused to admit her rights.</p> <p>The bill also stated that the plaintiff believed that said sums of money had been withdrawn by said John, or John and Martha, and invested in real estate, so that a trust had arisen, and that said estate was held in trust, for the benefit of the plaintiff and other heirs of said James; but that she knew not where said estate was situate, nor by whom it was held, and that said John and Martha, though requested, had refused to inform her.</p> <p>The prayer of the bill was for an answer under oath, and that said John and Martha might be decreed to account, and pay over said sums to said Capen, to be administered according to law, or to account with and pay over to the plaintiff one third part of the said James’s estate ; and that said Thomas P. might be decreed to pay over to the plaintiff one half of the money received by him of said Capen. There was also a prayer for general relief, and for process against said John Leishman, Martha Leishman, Thomas P. Wilson; and Phinehas Capen.</p> <p>No service was made on Thomas P. Wilson, he being an inhabitant of New York; and Phinehas Capen, the administrator, did not appear. John Leishman and Martha Leishman demurred to the bill, and assigned the following causes of demurrer: 1st. That the plaintiff has a plain, adequate and complete remedy, at the common law, for all the grievances and injuries stated in said bill. 2d. That the bill is multifarious. 3d. That Thomas P. Wilson, named in said bill, ought, by the plaintiff’s own showing in said bill, to be made a party thereto ; yet he is not, by the plaintiff, made a party thereto by any service of any subpoena on him, or otherwise.</p>

<p>A widow, who is administratrix of her husband’s estate, and brings a bill in equity to redeem real estate mortgaged by him, does not make the bill multifarious, by therein claiming to maintain her suit in both capacities.</p> <p>A bill in equity is not necessarily multifarious, by reason of its seeking to redeem two distinct mortgages of different parcels of real estate, or by reason of its seeking specific performance of distinct contracts relating to different parcels of real estate.</p> <p>A valid objection to a part of the claim made in a bill in equity will not sustain a demurrer to the whole bill.</p>

<p>Bill in equity. The plaintiff alleged that heretofore he was a partner of Horace Pierce, the defendant, Arnold Nelson and Simon S. McDonald, as contractors, under the firm of Nelson, Pierce & Co., in Albany; that they, as such partners, entered into a contract to perform certain work for the Albany and West Stockbridge Rail Road Company, (or by whatever name said company may be known,) on the rail road from Albany to West Stockbridge; that said partners began their said work in the year 1840, and finished it in the following year; that the amount of money, agreed to be paid for said work by said company, was $45,000 ; that said company did not pay that amount, and that a suit was instituted against them by said partners, which terminated in 1842, and thereupon a large sum of money, was paid by the company, a portion whereof came into the hands of said Pierce.</p> <p>The plaintiff further alleged, in his bill, that the work aforesaid was done at. a loss by said partners; that the other partners had received their portion of the money due to them on a settlement with said rail road company; but that the plaintiff had not received a portion equal to his share of the amount received by said partnership; that the defendant had received a portion much exceeding his share as one of the partners; that the plaintiff had often requested the defendant to come to a settlement, and pay to him his share of the money received from said company, but that the defendant had failed to make such settlement; that all the books and papers, necessary to a final settlement of the affairs of said partnership, were in the hands and possession of the defendant, or within his reach, and that he had access to them; but that the plaintiff, although he had requested that he might examine said books and papers, had not been permitted so to do.</p> <p>The plaintiff further alleged, that more than $800 were due to him from said partnership, and that all the other partners had received their full shares, and that the defendant had received, beyond his portion, a sum sufficient to satisfy the plaintiff’s claims; which sum the defendant received under a trust to pay and account for the same to the plaintiff ,• but that the defendant, in fraud of said trust, had refused to account to the plaintiff for the same ; that at or about the time when said partnership was dissolved, the defendant had, or received into his possession, certain articles of the partnership property, consisting of cars, derricks, and tools suitable to the business of said partnership, and other articles, the particulars of which were unknown to the plaintiff, of the value of nearly $1000, and had appropriated said articles, or the proceeds arising therefrom, to his own use; that all the debts due from said partnership had been paid; and that the aforesaid sums, received by the defendant, had not been applied in payment of said debts.</p> <p>The plaintiff furthermore averred, that the other members of said partnership were “ beyond the reach of the jurisdiction of the court.”</p> <p>The prayer of the bill was, that the defendant might, on oath, make a full answer, and state all sums received and paid by him as partner, and also produce the vouchers for every item by him so paid; and that he might be decreed to pay to the plaintiff such sum as should be found due on a final settlement of the accounts of said partnership.</p> <p>The defendant filed a demurrer to the bill.</p>

<p>A. mortgage of “ all and singular the stock, tools, and chattels belonging to ” the mortgagor, “ in and about the wheelwright’s shop occupied by ” him, is not void, as against his creditors; and if they attach the property, the mortgagee may demand payment of the attaching officer, in the manner prescribed by Rev. Sts. c. 90, § 79, and in an action against him, may show, by parol evidence, what articles were in and about the shop when the mortgage was made.</p> <p>When a mortgage mentions a specific number of articles of a certain kind, in and about a shop, and also all the other personal property there situate, the specific enumeration does not prevent the passing of other articles of the same kind, which are in and about the shop.</p> <p>When unfinished articles of manufacture are mortgaged, and the mortgagor after-wards adds labor and material to them, the mortgagee will hold them, as against a creditor of the mortgagor, if they remain substantially the same as when mortgaged. Whether he would so hold them, if they are substantially changed, or their value is greatly increased, by such addition— qxu&re.</p> <p>A mortgagee of chattels which were attached by a creditor of R., the mortgagor, seasonably delivered to the attaching officer the following writing: “I hereby demand payment of, and indemnity for, the amount stated in the following account.” (Describing six promissory notes of R.) “ All the above demands are now due and payable from said R. to me. I also demand of you indemnity for my liability, as indorser for the accommodation and benefit of said R., of the following described notes of hand.” (Describing them.) 16 The foregoing demand is made on you, in consequence of an attachment made by you on a writ in favor of G. and S. against R.; which property I claim to hold under two mortgages executed and delivered by said R. to me.” (Setting forth the dates of the mortgages, and the volumes and pages in which they were recorded in the registry of mortgages.) Held, that this was a sufficient statement and demand, under the Rev. Sts. c. 90, $ 79.</p> <p>On the trial of an action, brought by a mortgagee of chattels, against an officer for attaching them as the property of the mortgagor, the jury were instructed that the plaintiff must prove that the written statement, which he made to the officer, of the debt or demand for which the property was liable to him, was substantially true and correct, but that no slight, innocent and immaterial misstatement would defeat his action. Held, that this instruction was not justly subject to exception. The rule that requires the owner of chattels, which he suffers to be mixed with those of another, to point out his own, and demand them of an officer, who seizes the whole as the property of the other, before he can sue the officer, does not apply to the holder of a mortgage of all the personal property on certain premises, with a provision (which he supposes to be legally operative) that it shall also cover all other personal property which the mortgagor may put on the premises in the place of such as he should sell and deliver.</p>

<p>Assumpsit for goods sold aud delivered. At the trial in the court of common pleas, before Wells, C. J. it appeared that the goods were delivered to the defendant’s son, who purchased them in the absence of the defendant; and that they were originally charged to the defendant. And there was evidence tending to prove that they were so charged by direction of the son, and that he, on previous occasions, had purchased goods of the plaintiff, which the plaintiff charged to the defendant, with the defendant’s consent.</p> <p>It appeared that after the goods, which were the subject of the present suit, were delivered, the following letter was immediately written to the defendant, and was shortly after-wards delivered to him. “ Boston, October 29th 1841. Mr. A. C. White. This is merely to inform you that your son, Mr. A. H. White, of Liverpool, (N. S.) was here September 15th, and purchased of me glass ware to the amount of $ It 1-92, and of Mr. Thayer, who does business in my store, paper hangings, to the amount of $156-45; all of which he bought in your name, on six months’ credit, and the bill made out to you. I have no doubt but that it is all correct; but still I thought it proper for me to inform you of the transaction. Yours, &c. John Waldron.”</p> <p>To this letter the defendant did not return any answer.</p> <p>The judge instructed the jury, (among other things, not excepted to,) that if they were satisfied that the defendant designedly omitted to answer this letter, with intention of having the plaintiff infer, from his silence, that he agreed to the transaction, such silence would of itself render him liable to the plaintiff; but that, if the omission to answer the letter was owing to carelessness, or any motive other than the design above mentioned, the defendant would not be affected by such omission ; and that the burden of proving such design was upon the plaintiff.</p> <p>The jury returned a verdict for the plaintiff, and the defendant excepted to said instructions.</p>

<p>By the provisions of the Rev. Sts. c. 146, the rules and regulations, made by the commissioners of pilots, approved by the trustees of the Boston Marine Society, and published in the newspapers, pursuant to St. 1835, c. 149, § 4, remained in force, with all the authority of law, after that statute was repealed by the St. of February 20th 1836.</p> <p>Under the Rev. Sts. o. 32, and the fifth rule of the commissioners of pilots, made on the 16th of April 1835, and approved and published, as required by St. 1835, c. 149, § 4, the owner of a vessel, as well as the master, was liable to pay pilotage fees to a pilot who duly offered to pilot the vessel into Boston harbor.</p>

<p>0., whose business was that of collecting rough talloty and preparing it for market, made an oral agreement with L. to furnish him with a certain quantity of tallow, of good quality and color, at a certain price per pound, and to deliver it at a certain place, and afterwards furnished and delivered the specified quantity, and made and signed bills of parcels in which the article was denominated “ tallow,” without other description or designation: L. accepted the tallow, and paid the agreed price for it. Held, that the agreement was within the statute of frauds, and that L. could not recover for a breach of warranty, made by C. at the time of the agreement, that the tallow should be of good quality and color. Held also, that if the delivery of the tallow by C. and the acceptance and payment by L. were to be regarded as constituting one entire contract of sale, yet there was no contract of warranty, because the bill of parcels, which was the only written memorandum signed by C, specified none, and contained no description or denomination, from which a warranty could be inferred.</p>

This was a writ of right, brought by John W. Means and Sophia R. Means, his wife, and William B. Cushing and Catharine E. Cushing, his wife, and the action was commenced on the 10th of October 1845.

<p>A chose in action is subject to sequestration to compel the payment of money undez a decree of a court of equity.</p> <p>An insurance company, that owned stock in a bank, was made party to a bill in equity, under Rev. Sts. c. 36, § 31, which render the holders of stock in a bank, when its charter expires, liable for the payment of all its bills, and was ordered, by a decree of the court, to pay a certain sum for the benefit of the holders of unpaid bills, and an execution was issued against the company, which was returned unsatisfied : The plaintiffs in said bill afterwards filed another bill, alleging therein that the only property of said company was a promissory note for a large amount, payable to its own order j that the company had placed said note in the hands of S. and B. for safe keeping, to remain the property of the company until the suit by said first bill should be determined; that the plaintiffs were remediless, inasmuch as the company had no property on which an execution could be levied; that the company refused to indorse the note to the plaintiffs, and that S. and B. refused to do what was equitable and just towards the plaintiffs, and to enforce payment of the note by the makers; and praying that the aforesaid decree against the company might be enforced, and that the maker of the note might be decreed to pay to the plaintiffs the amount due from said company, on said decree; and also praying such further relief as the court might deem meet. Held, on demurrer, that the second bill was maintainable.</p>

<p>This was a special action on the case, by a stockholder of the Phoenix Bank, against those who were directors of the said bank, for several years next before and at the time of the failure of said bank, in October 1842. There were two counts; one founded in nonfeasance of official duty, the other in misfeasance.</p> <p>The first count recited, as matter of inducement, that stockholders in banks are bound by law to elect a certain number of directors, who have by law the entire control and management of the business and property of the corporation, with power to appoint or elect a president and cashier, and such other subordinate officers and agents as they may think proper, for the purpose of conducting the business of the bank, in such manner as the directors may order; that it is the duty of the directors to order, direct and superintend the acts and proceedings of the officers, and cause them to account, from time to time, for the property which may come to their hai ds, and to exercise reasonable vigilance, in seeing that the money and other property of the bank are not lost, wasted or misused ; and to make and authorize loans by discount upon banking principles, and to hold regular meetings for that purpose, and to exercise their own skill and discretion about loans and securities, with a view to the preservation of the capital and profit of the stockholders, and to cause true records to be kept, and proper books of account, and to examine them personally, with the vouchers, and ascertain the profits of the business, before declaring dividends, and see that the returns made to the secretary of the Commonwealth, as required by law, exhibit truly the condition of the bank, and that true statements and exhibits are made to the bank commissioners, at their examinations of the bank, and to the stockholders at their meetings ; to keep the issues of the bank and its aggregate of debts, and the amount of loans to the directors, within the limits by law prescribed, and to see that the moneys of the bank are not lent to irresponsible persons, and upon inadequate security, or upon securities not conforming to bank usage, nor capable of being discounted, or otherwise irregular; and that it is the duty of each individual, who accepts the office of director, to exercise, concurrently with his associates, unless prevented by inevitable accident, a reasonable degree of diligence and fidelity, in performing the common duties of the board; and that, if the capital is lost by the official mismanagement of the directors, the stockholders arc by law made answerable for it, and that, when the charter is annulled or expires, they are liable also for the redemption of all outstanding bills.</p> <p>The said count further recited the incorporation of the Phoenix Bank, with a capital of three hundred thousand dollars, the acceptance of the charter, the organization of the corporation, and the actual transaction of banking business, upon said capital duly paid in; that the plaintiff was an original subscriber for ten shares in the corporate stock, and paid in the amount of said shares, November 1st 1832; that four of the defendants were members of the first boaid of directors, and were reelected from year to year; that the business was, for many years, faithfully and prosperously conducted under their direction; and that the plaintiff, confiding in their fidelity and diligence, was induced, in October 1836, to buy ninety shares more of the stock; that the stockholders continued to reelect, annually, the four defendants above referred to, and for the last five years had elected, jointly with them, the other defendants and William Wyman, to be the directors of the bank ; that the directors had annually elected William Wyman to be president, and Thomas Brown, jr. to be cashier, each with a large salary; that all the defendants had constantly accepted their respective offices, and had thereby undertaken, with all and each of the stockholders, to discharge the duties thereof, with due skill, prudence, diligence and fidelity; that the plaintiff, confiding in their undertakings, and the returns made and authorized by them to the secretary of the Commonwealth, and "the reports of the bank commissioners, upon the exhibits made to them, and the dividends of profits regularly made, and the representations to the stockholders at their meetings, was induced to continue a stockholder, and not to sell his shares, relying upon them as a safe investment; that, until after January 1st 1837, the capital of the bank was in fact well invested in suitable banking securities; and that the property of said bank, after paying debts and liabilities, was worth more than the whole amount of said capital, and would have so continued if the business had been conducted with due skill, prudence, diligence and fidelity, by the defendants.</p> <p>The said count then alleged that, for a long space of time, the defendants, “ not regarding their aforesaid duties, as such directors, nor their respective and concurrent promises in that behalf, but wholly disregarding the same, and contriving together to injure and deceive the plaintiff therein, neglected and omitted, without any reasonable excuse, during the said term of years, to give reasonable and proper personal attention to the business of the said bank, and the care and management of its property and concerns, and to exercise a reasonable care and diligence in ordering and directing the said president and cashier, so elected and appointed, from time to time, in manner aforesaid, concerning the business of the said bank, and the manner of conducting the same, in their respec tive departments.”</p> <p>And the said count proceeded to allege, particularly, such entire neglect of each and every duty set forth in the recital, and particular instances thereof, and among them, that they “wholly neglected and omitted, without any reasonable excuse, to exercise their own skill, care, judgment and discretion, in the making of loans and discounts, out of the moneys in the possession of said bank, and otherwise administering and directing the negotiations and business of the said bank, and, on the contrary thereof, negligently permitted the said president to control and manage the whole business of the said bank as he saw fit, and to issue the bills and lend the moneys of the said bank according to his own will and pleasure, and to lend, out of said moneys, divers large sums to divers persons, amounting, in the whole, at the time of the failure of the bank, hereinafter spoken of, to a sum greatly exceeding the whole capital of said bank, to wit, the sum of five hundred thousand dollars, taking and receiving, as security therefor, unaccepted and unauthorized drafts, notes on demand, memorandum checks, and other informal promises, and pretended securities, not usual in bank dealing, nor capable of discount, nor well approved as banking securities, according to the usage of all well regulated banks in this Commonwealth, nor deemed nor decided by the board of directors to be safe and expedient securities for the said bank to take and hold, or well adapted to preserve the capital stock thereof, and secure a reasonable profit on the said loans, for the benefit of the stockholders; which said drafts, notes, checks and other securities were, and are, wholly valueless and unpaid.”</p> <p>The said count then set forth the particulars of such loans to Stanley, Reed & Company, and to other individuals named, and of sums taken by the president himself, for his own use, and of loans to individual directors, exceeding the limits of the law, and issues of bills beyond such limits, and other improper acts alleged as done by the said president, through the negligent permission of the defendants.</p> <p>•The said count then averred, that by reason of all the aforesaid negligences and omissions, and the said acts of the president and cashier, so negligently permitted, the hank suddenly failed, on the 3d of October 1842, and became up able to redeem .its bills and pay its debts; that its capital was wholly lost, and that the plaintiff’s shares therein became valueless, and that he was made liable, in a large amount, for his proportion of the capital, lost by the official mismanagement of the directors, and further liable, at the expiration of the charter, to pay large sums for the redemption of the bills of said bank, and liable to be harassed by suits of the bill holders and other «creditors of the bank, and to be put to heavy expenses and great losses thereby.</p> <p>The second count, after setting forth nearly the same matters of inducement which are set forth in the first count, alleged that the defendants, for three years next before- the commencement of this action, “ not regarding their aforesaid duties as such directors, nor their respective promises in that behalf, but wholly disregarding the same, and contriving together to injure and deceive the plaintiff therein, concurred and agreed with each other, annually, during the said term, in appointing the said William Wyman to be the president of said bank,'and jointly with the said Wyman, appointed the said Thomas Brown, jr. to be the cashier thereof; and further concurred and agreed with each other, and with the said Wyman, that the whole business of the said bank should be managed and conducted by him, as president and general agent of the said bank, and of the directors thereof, in such manner as he should see fit; and that the said cashier should be wholly under the orders and directions of the said Wyman, and should execute the duties of his said office in such manner as the said Wyman should from time to time require and direct; and that they, the said directors, would permit, sanction, ratify and confirm such discounts, loans, issues, transactions and negotiations in the business of said bank, as the said Wyman should from time to time make, authorize and transact, and would pay him a large sum of money, to wit, three thousand dollars, annually, out of the moneys of said bank, as a compensation for his services in attending to and transacting the business thereof in manner aforesaid; and the said directors, in pursuance of their said agreement, intrusted to the said Wyman the entire management and control of the business of said bank, during the said term, and permitted, sanctioned, ratified and confirmed the discounts, loans, issues and other transactions and negotiations by him made, authorized and transacted in his said agency during the said term, and paid him for his services therein the said annual sum of three thousand dollars out of the moneys of said bank : ” And that the said defendants themselves declared and made dividends, when there were no profits, and caused false returns to be made, to the secretary of the Commonwealth, of the state and condition of the bank, and by their agent, the said Wyman, and the cashier under his direction, made false exhibits and statements to the bank commissioners; by all which means the plaintiff was misled, and induced to rely on the security of his investment: And that the directors, through said Wyman, to whom they had unlawfully delegated their whole authority, made the same loans, and did the same unlawful and irregular acts, (setting forth the same particularly,) which in the first count are charged as done by said Wyman, through their negligent permission: And generally, the said second count charged, as acts of the defendants, the matters which-in the first count, were charged as negligences and permissions ; and deduced therefrom, in like manner, the failure of the bank, and the special damage to the plaintiff</p> <p>This count concluded with an averment, that the defendants, by “ misconducting the business of said bank, as aforesaid, so wilfully, deceitfully and fraudulently mismanaged the business and property of the said bank, that the whole capital thereof was utterly lost and wasted.” .</p> <p>The defendants demurred to the declaration, and the plaintiff joined in demurrer.</p>

<p>A ship, lying at anchor between Boston and Chelsea, off Constitution Wharf, at the distance of one fourth or one third of a mile from said wharf, in water of the depth of four or five fathoms at low tide, and between one third and one half of a mile’s distance from the navy yard in Charlestown, is within the body of the county of Suffolk; and an offence committed on board a merchant ship, so situate, owned by a citizen or citizens of the United States, is exclusively cognizable by the courts of the State.</p> <p>An acquittal by a jury, in a court of the United States, of a defendant who is there indicted for an offence of which that court has no jurisdiction, is no bar to an indictment against him, for the same offence, in a state court.</p>

<p>This was an action of assumpsit, in which the declaration alleged that “ the said Gilbert, at Boston, on the seventh day of November 1844, for value received of the plaintiff, drew his order, in writing, under his hand, of that date, directed to James Cheever, therein arid thereby requesting said Cheever to pay to the plaintiff the sum of one hundred dollars; and the plaintiff, on said seventh day of November, at said Boston, presented said order to the said Cheever for his acceptance and payment, which the said Cheever then and there refused to do; of which the said Gilbert then and there had due notice, and was requested to pay the same; whereby he became liable.” There were also the money counts.</p> <p>The said Cheever, on whom said order was drawn, was summoned as the trustee of the defendant, and the writ was served upon him on the 27th of November 1844.</p> <p>At the January term of the court of common pleas, in 1845, the principal defendant was defaulted. At a subsequent term, the trustee filed his answer, which was as follows :</p> <p>“ In September or October 1844, Henry Davis and the defendant Gilbert came to my counting room, and placed in my hands the sum of one hundred and severity five dollars, Gilbert one hundred dollars, and Davis seventy five dollars, which I was requested to hold and dispose of upon the following terms, as contingencies ; that is to say, if Henry Clay was elected the next president of the United States, I was to pay the said sum of one hundred and seventy five dollars to said Gilbert; and if Henry Clay was not so elected, I was to pay said sum to said Davis. I was about to make a memorandum in writing, to which Mr. Gilbert objected, and said there was no need of any; that Mr. Davis was a gentleman, and would not sue back; and for himself, he would sooner have his hand cut off than to sue for it, or do any thing dishonorable about it. I accordingly made no memorandum, and took the money. On the 15th of January 1845, when the result of the election was ascertained to my satisfaction, I paid said sum of one hundred and seventy five dollars to said Davis, and had not then, nor have at any time ever received any notice or direction from said Gilbert, not to pay over said money, or any part of it, to said Davis, either personally or in writing from him, or by any one acting or assuming to act as agent of said Gilbert. In the latter part of November 1844, a person whom I suppose, but do not know, to be Ball, the plaintiff, presented to me a draft, in the common form, purporting to be signed-by Henry Gilbert, to pay to said Ball (I think) one hundred dollars, for value received. I do not know whether the signature was the handwriting of said Gilbert, or not; and he has never said any thing to me on the subject, before or since. Said draft had no reference to any bet made by said Gilbert, nor to the presidential election; nor did it contain any notice or direction not to pay any money, in my hands, to said Davis, nor to refund to said Gilbert, or to pay to said Ball, or any other person, any money said Gilbert had deposited in my hands. The person who presented said paper did not direct me not to pay said money to any person but himself, nor give any directions as to said money; nor did he assume to act, or appear to act, for said Gilbert, hut for himself alone. I have no recollection of any transaction with said Gilbert, except that described above, when the said Davis placed money in my hands, to be paid over as then directed; which direction was never countermanded by said Gilbert, in any way, to my knowledge.”</p> <p>The court of common pleas charged said Cheever, on his aforesaid answer, and he took an appeal to this court.</p>

<p>An estate in fee, or in tail, defeasible upon a contingency, is liable to be taken in execution by a creditor of the tenant, and held until the happening of the contingency.</p> <p>An administrator who takes real estate on execution to satisfy a debt due to his intestate, and receives payment therefor, on its being taken from him for public uses, is estopped to deny that the estate was liable to be levied on, or that he took any thing therein by the levy.</p> <p>When real estate, on which an administrator has made a levy to satisfy a judgment recovered on a debt due to his intestate, is taken for public uses, after the time allowed to the judgment debtor to redeem it has expired, and the money, awarded as a compensation therefor, is received by the administrator, the sureties on his administration bond are liable for his default in regard to that money.</p> <p>The court will not sustain a bill in equity, brought on the Rev. Sts. c. 70, § 16, against the devisees and legatees of a surety on an administration bond, whose estate has been settled, to recover for the default of the administrator for whom he was surety, if the claim is a stale one, and the claimant has been guilty of great negligence, laches and delay, although the claim is not, strictlv speaking barred by the statute of limitations</p>

This was an action of trespass upon the case, to recover damages alleged to have been sustained by the plaintiff, by reason of the negligence and carelessness of the defendant’s servant.

<p>A testator in New Hampshire, who owned shares in-a bank in Boston, made the following bequest to his wife, whom he made executrix of his will: (t All the property, both real and personal, that I am possessed of, during her life, except my farm in the town of W. No part of the bank stock is to be disposed of, unless her comfort should require it; but it is to be apportioned to my relations, according to her discretion, to be enjoyed by them, after her decease: ” She caused the will to be proved in New Hampshire, and gave bond as executrix, but never caused the will to be allowed and recorded in this State, according to the provisions of St. 1785, c 12, and Rev. Sts. c. 62: She also gave a power of attorney to a citizen of Boston, authorizing him to sell the shares in the bank there, which were accordingly sold by him, and a transfer thereof was made to the purchaser, in due form, on the books of the bank: After the death of the executrix, the will was duly allowed and recorded in this State, and administration, with the will annexed, was granted to H., who brought an action against the bank, to recover the dividends on the shares, from the time of the said sale and transfer. Held, that the executrix, as such, had the legal power to convert the shares into money, without the aid of a probate court in this State, if she could do it without legal process; that the bank was not bound to see to the application of the proceeds, nor to decide whether her comfort required the sale; that if she had no authority to appropriate the proceeds to her own use, or if she sold the shares, when she ought to have retained them, she was guilty of a violation of official duty, for which her sureties were responsible on the probate bond; and that the action could not be maintained.</p>

This was an action of assumpsit, brought by the assignee of Silas A. Stone, a bankrupt on his own petition, to recover the price of one hundred and eighty shares of the capital stock of the Hudson and Berkshire Rail Road Company, or damagesfor non-fulfilment of a contract made with said Stone by the defendant, in the State of New York, and there to be performed, for the purchase of said stock.

<p>On the trial, in the court of common pleas, of a complaint made to a justice of the peace, which contained six counts, charging the defendant with selling spiritous liquor, without license, in the open air, the jury returned a verdict that the defendant was guilty of the charge contained in the third count, and stated that they had not agreed as to the other counts. Held, that the attorney for the Commonwealth, with leave of-the court, might enter a nol.pros. as to the other counts, without the defendant’s consent, and that judgment might be rendered on the third count.</p>

<p>An indictment on the Rev. Sts, c. 126, § 32, alleged that G. designedly and unlawfully did pretend to N. that A. wanted to buy cheese of N. and had sent G. to buy it for him, and that a certain paper described, purporting to be a ten dollar bill of the Globe Bank, in the city of New York, was a good bill, and of the value of ten dollars ; by means of which false pretences, said G. unlawfully obtained from said N. forty pounds of cheese, of the value of four dollars, and sundry bank bills and silver coins, amounting to, and of the value of, six dollars, with intent to cheat and defraud; whereas the said A. did not want to buy cheese of said N., and had not sent G. to him for that purpose, and the said paper was not a good bill of the Globe Bank, in the city of New York, and was not of the value of ten dollars, but was spurious and worthless. Held, on motion in arrest of judgment, that the false pretences set forth were such as might have been effectual in accomplishing a fraud on N., in the manner alleged; that neither the omission to allege that G. knowingly made the false pretences, nor the omission to mention any person whom he intended to defraud, rendered the indictment bad; and that there was no objection to the indictment on the ground of duplicity.</p>

<p>By the Rev. Sts. c. 73, § 21, when an execution, that has been levied on real estate, has been returned or recorded, and it appears that the estate levied on was not the property of the judgment debtor, or not liable to be seized on execution, or cannot be held thereby, the judgment creditor cannot maintain an action of debt on the judgment; but his only remedy is by writ of scire facias, requiring the debtor to appear and show cause why an alias execution should not be issued on the judgment.</p>

<p>B. made a promissory note payable to S. or order, and S. and T. signed their names to these words written on the back thereof: “We guaranty the payment of this note.” Held, that this was not such an indorsement as authorized the holder of the note to sue upon it as indorsee.</p>

<p>By St. 1827, c. 77, § 14, and Rev. Sts. c. 39, § 17, when a turnpike road is laid out as a common highway, the owners of the land, over which the turnpike was laid out, are net entitled to full damages, as if their land had then, for the first time, been taken for a way, but are entitled to such damages only, if ary as exceed those which they would have sustained by the continuance of the roa«. us a turnpike ; although by St. 1804, c. 125, § 15, and Rev. Sts. c. 39, § 15, upon the discontinuance of a turnpike road, the land revests in the persons who were owners thereof when it was taken or purchased for the purpose of making the turnpike, or in their heirs or assigns : And the legislature had authority to prescribe this rule of damages, in cases of turnpikes previously granted, as well as in cases of turnpikes granted subsequently.</p>

<p>A conveyed land to B., with covenants of seizin and warranty, and B., at the same time, mortgaged the same land to A., by a deed containing the same covenants: A. was not seized of all the land when he conveyed to B., and B. was evicted from a part thereof, and brought an action against A. on his covenant of seizin. Held, that the action was maintainable; B.’s covenants not operating as a rebutter to his demand against A., to prevent circuity of action.</p>

<p>Assumpsit on a receipt given by the defendant for property attached by the plaintiff, a deputy sheriff, in a suit brought by John P. Beckman against George Wilson. The case was submitted to the court upon the following agreed facts :</p> <p>The defendant executed the receipt declared on, and the plaintiff demanded of him the property mentioned therein, before this action was brought, viz. on the 5th of October 1846. The action of John P. Beekman, against George Wilson, on which the plaintiff attached said property, was commenced at the June term of the court of common pleas, in 1842, and was tried at the October term of that court, in 1844. Said Wilson pleaded in bar, that he had been discharged of his debts, including the one sued in that action, by force of the United States bankrupt act of 1841. The said Beekman replied, that said discharge was void foi fraud upon said act by said Wilson, and a verdict of the jury found that it was so void. Said Wilson filed exceptions to the ruling of the judge, which were overruled by the supreme judicial court, at September term 1846, (9 Met. 434,) and judgment was rendered on the verdict, for said Beekman, for $665-06 damage, and $78-58 costs ; and execution issued on that judgment, which is wholly unsatisfied</p> <p>“ In this action, the said Sturgis defends on the ground that, by force of the proceedings under the bankrupt law, the attachment of the property, for which the receipt sued on was given, was dissolved, and so said Ives has no claim to the property. The attachment was made on the 12th of March 1842, and while the action was pending, viz. on the 17th of August 1842, said Wilson made oath to his petition in bankruptcy, and the same was filed in the office of the district clerk on the 31st of said August. Said Wilson was decreed a bankrupt on the 8th of November 1842, and an assignee of his estate was • appointed by the district court of the United States, and that court, before the trial of the aforesaid action, granted to said Wilson a certificate of discharge under the. said bankrupt act.”</p> <p>Upon these facts the agreement of the parties was, that if the plaintiff was entitled to recover, judgment should be rendered for him for the amount of the aforementioned judgment recovered by Beekman against Wilson; otherwise, that the plaintiff should become nonsuit.</p>

<p>This was an action upon the case, to recover damages foi detaining and converting the plaintiff’s goods.</p> <p>At the trial in the court of common pleas, before Merrick J. the defendant justified, as messenger, under a warrant, issued by the judge of probate for this county, against the estate of the plaintiff, pursuant to the insolvent.law of 1838. And it was proved or admitted, that the defendant, under said warrant, and by virtue thereof, took possession of a desk in the plaintiff’s dwelling-house, and of another in his store, in both of which were various notes, deeds and other papers, and the plaintiff’s account books; that he also took possession of said store, which was then unoccupied, locked the door thereof, and took the key into his possession; and that this key, and all the property before mentioned, were retained by the defendant, until returned to the plaintiff, as hereinafter stated.</p> <p>The plaintiff put into the case the record of the proceed-, ings against him as an insolvent debtor; from which it appeared that those proceedings were instituted upon the petition of Hiram C. Stevens, who represented therein, among other things, that he was a creditor of the plaintiff, who owed him a debt exceeding $100; that at a meeting of the plaintiff’s creditors, duly called and held by the said judge of probate, on the 6th of January 1844, the said judge, after a due hearing, rejected the said alleged claim of said Hiram C. against the plaintiff, and thereupon ordered and decreed that said petition of said Hiram C., and all proceedings tl ere-on, be dismissed. And it was proved or admitted, that said Hiram C. forthwith duly entered an appeal from said order aad decree, rejecting his said claim, to the court of common pleas then next to be held for this county; that he duly entered and prosecuted said appeal, and that the same was pending until the 20th day of October 1845, when judgment was entered in said court, affirming said order and decree or the judge of probate; that after the rendition of said judgment, by the court of common pleas, to wit, on the 6th of January 1846, the defendant returned .to the plaintiff thr said key, and all the aforesaid property, so as hforesaid taken by him.</p> <p>The plaintiff objected that said key and property were not returned to him in a reasonable time. This question was submitted to the jury upon all the facts and circumstances which were in evidence in the case, and they found' their verdict, on this point, for the defendant.</p> <p>It appeared that soon after the said order and decree of the judge of probate, rejecting the claim of said Hiram C. and dismissing the said proceedings, but after the appeal of said Hiram C. had been duly made, the plaintiff demanded of the defendant a return of said key and property, but that the defendant declined returning them at that time, because said proceedings, by reason of said appeal, were still pending. The plaintiff contended that the defendant was bound to return said property in a reasonable time after the said decree of the judge of probate, notwithstanding the pendency of the appeal; and that he was specially so bound, upon the plaintiff’s demanding their return. But the judge ruled that the defendant was not bound to return the property, after said appeal was duly made, so long as the same was duly pending in the court of common pleas.</p> <p>The plaintiff further contended that the defendant had no right to lock up the store and take and keep the key. But the judge ruled that the defendant, by virtue of his warrant, had a right so to do.</p> <p>A verdict was found for the defendant, and the plaintiff alleged exceptions to the judge’s rulings.</p>

Assumpsit by the payee against the maker of a promissory note for $31-47, dated March 31st 1845, and payable with interest after June 20th 1845.

<p>A., a citizen of this State, ordered goods from a trader in Connecticut, which were sent to him. Heidi that A/s discharge under the insolvent law of this State was not a bar to an action brought against him for the price of the goods, by the seller, who had not proved his claim, under that law.</p> <p>A., the surviving member of a firm, that owed W. $20 for goods sold, wrote a letter to W., within six years next before W. sued him for the goods, saying that W’s bill ought to have been paid before, and promising to attend to it in a short time : A. afterwards took advantage of the insolvent law, and inserted in the schedule of his debts the sum of $20, as due to W. Heidi that these facts showed a sufficiently definite acknowledgment of the $20 debt due to W to take the case out of the statute of limitations, on which A. relied in defence.</p>

<p>L. made a note for $3000, dated February 6th 1839, payable to B. on the 1st of April following; and B. signed the following "writing at the bottom of the note: “ In the event that L. does not get the appointment of postmaster at A., I agree to submit to such deduction from this note as C. and D. shall say: ” L. was not appointed postmaster at A. until the 25th of May 1841, and was afterwards sued by B. on the note. Held, that the contingency, on which B. was to submit to such deduction as C. and D. should say, occurred on the 1st of April, when the note was payable, and that L. was entitled to such deduction, though he afterwards was . appointed postmaster.</p>

<p>When a bill in equity seeks for discovery only, and not for relief also, the defend, ant will be compelled to make discovery, if the court can suppose that it can bo in any way material to the plaintiff, in support or defence of any suit; although the bill does not aver that the right, which the plaintiff seeks to enforce, cannot be established without the aid of the discovery which is sought.</p> <p>An action on a contract was brought against three defendants, one of whom alone defended it; and the plaintiff filed a bill against him for a discovery of a letter, written to him by the other defendants, concerning the subject of the action. Held, on demurrer to the bill, that the defendant must answer it, either by making the discovery which was sought by it, or by stating such facts as would excuse him from making the discovery.</p>

<p>Trespass for an assault and battery. At the trial in the court of common pleas, before Merrick. J. the plaintiff introduced evidence tending to prove that on the 22d of March 1844, he sent his servant to the depot of the Western Rail Road, at Pittsfield, to purchase a ticket for his passage in the cars from that place to Richmond, and that the servant procured the ticket by employing a third person to purchase it: That on the next day, the plaintiff, having the ticket in his pocket, went to the depot, entered the room at the door where passengers usually enter to take the cars, and was proceeding through the room towards the stairs, which led to the platform where passengers entered the cars, when he was stopped by the defendant Power, but struggled to get by him, and was making his way to the stairs, when Power rang a bell: The plaintiff offered no evidence that any thing was said by either Power or Hall to the other: That the other defendants immediately appeared, and that Power ordered them to put the plaintiff out of the depot, which they did ; the plaintiff at the same time resisting their efforts; and that this took place while the cars from the east were at the depot, and about to start for Richmond.</p> <p>It was admitted that Power was superintendent at the depot, and that the other defendants were servants employed by the corporation, under him.</p> <p>The plaintiff also gave evidence, that after he was expelled from the depot, and after the cars had left, he took his ticket from his pocket, and held it up, and requested those present to take notice that he had a ticket for Richmond; to which Power replied, that this was the first time he had shown his ticket.</p> <p>The defendants then offered evidence, that for several months previously to this affair, a number of persons were in the habit of coming to the depot, at the time of the arrival and departure of the cars, for the purpose of soliciting customer? for the several hotels in the neighborhood of the depot; and for the several carriages and lines of stages, which were accustomed to carry passengers to and from the depot: That the plaintiff kept a hotel near the depot, and that he and his servants were in the habit of coming, with others: That these persons were in the habit of crowding on the platform, to the great inconvenience and annoyance of passengers, and that frequent and great complaints were made by the passengers to the conductor of the train, and to Power, on this subject: That Power had frequently requested them to desist from the practice, but that his requests were disregarded, and the annoyance constantly grew worse: That about the 13th of March 1844, he issued a circular, stating the facts, and requesting innkeepers and others to discontinue the practice, and giving them notice, that they would thereafter be excluded from the platform; which circular was sent to the plaintiff, and was received and read by him : That all other persons, except the plaintiff, desisted from going to the platform, and remained outside of the depot: That the plaintiff denied the right of Power to restrain him from going to the platform as often as he pleased, and expressed a determination to disregard his request: That on several occasions, he went to the platform, and that on Friday, and on Saturday morning, previously to the alleged assault, and while the trains were in, he forced his way down the stairs, against the efforts and remonstrances of Power; and that Power repeatedly ordered him not to come to the depot any more, on account of his conduct. Evidence was also offered, that a.t the time of the alleged assault, Power, before calling the other defendants to expel the plaintiff, and while he was going forward, told him not to go down stairs ; to which the plaintiff made no reply, but pressed forward.</p> <p>The defendants offered evidence to prove that the plaintiff had violated other regulations of the depot, by carrying baggage through the room appropriated to ladies, and in other particulars. This evidence was objected to by the plaintiff; and the defendants thereupon admitting, that at the time when Power expelled the plaintiff, he did not claim a right to expel him on account of the violation of any regulation besides that contained in the circular, and that they had no evidence to offer, in addition to that hereinbefore recited, tending to show that said expulsion was on account of the violation of any other regulation than that contained in said circular, the evidence was rejected by the court.</p> <p>The cause was submitted to the jury, under instructions from the court as to the right of Power to remove the plaintiff from the depot by force, which were not objected to by defendants, except as follows, to wit: The defendants requested the court to instruct the jury, that Power had a right to order Hall to leave the depot, and not to come there any more, and to remove him therefrom by force, if he did come, if, in the judgment merely of said Power, the plaintiff had violated the regulations contained in said circular, or had conducted offensively towards said Power, although the fact that the plaintiff had violated such regulations, or had so conducted himself towards said Power, was not proved. But the court declined to give such instructions to the jury.</p> <p>A verdict was returned for the plaintiff, and the defendants alleged exceptions.</p>

Trespass for taking and carrying away two hundred and fifty pounds of butter, two hundred pounds of wool, and thirty lambs. The defendant pleaded the general issue, and filed a specification of defence, wherein he justified taking said articles, as constable of the town of Florida, on a writ against Smith Hix and Russell Stafford, in favor oí Shoreman Goodman; alleging that said articles were the property of said Hix and Stafford.

<p>A. directed B. to get C. to do, on A.’s account, what blacksmith work B. wished to have done, and agreed to pay C. for it: B. procured 0. to do such work for him, from time to time, informing C. of A.’s direction, and C. charged the work tc A.. C. afterwards sued A. for the work so done, and called B. to prove his charges ; but B. could not recollect the dates, nor the particular items of C.’s account. Held, that C.’s shop book, with his suppletory oath, was admissible in evidence to prove his charges against C.</p>

Bill in equity, filed on the 12th of January 1846, to redeem a tract of land in Lanesborough.

This was a petition for partition, and was entered at the June term of the court of common pleas, in 1846. Notice was ordered and given to all persons interested; an appearance was entered for some of them, at the following Octobei term, when the petition was continued to February term 1847. Between said October and February terms, the petitioner died.

<p>Trespass upon the case. The plaintiff’s declaration alleged that there was a stream of water, flowing from West Pond, in Becket, through the defendants’ land, and then through the plaintiff’s land, to his factory standing thereon; that the defendants made a canal upon their own land, above the land and factory of the plaintiff, and turned the water of said stream from its ancient course, and from the plaintiff’s factory, into said canal, and conducted the said water through said canal, and discharged the same into the ancient bed of the stream, below the land and factory of the plaintiff; by means whereof the plaintiff was deprived of the use of said water for doing the work of his factory.</p> <p>The trial was before Deioey, J. who made the following report thereof: The plaintiff gave evidence tending to prove the averments in his declaration, and that so much water was diverted from his factory, as to render it nearly useless. He also introduced, as evidence of his title to his land and factory, a deed of the equity of redemption, which was sold on an execution against Robert Stedman, dated August 2d 1843, and also a deed of Clark Dorman to Robert Stedman, dated April 30th 1833, (to which the aforesaid deed of Stedman’s equity of redemption referred for a description of the premises conveyed,) which contained, besides a description of the land, the following clause : “ With the privilege of flowing back the water, by a dam on said premises, within two rods of where the water is now taken out of the abovesaid West Pond. Also the privilege of using the water on said premises for all kinds of machine, except for a saw mill and clothier’s works for customers; and also the privilege of drawing water from said West Pond, by raising the gate for the benefit of the machinery that may be erected on said premises under the above exception or reserve. And further, I reserve to myself, my heirs and assigns, the privilege of raising the gate at said West Pond, at all times, to draw water for the benefit of my machinery below.”</p> <p>The following facts appeared in evidence : At the time oí the grant by Dorman to Stedman, there was a dam, called a sheep dam, (which has been taken away, or has decayed,) across the stream, near its outlet at West Pond, in which was a gate used for the purpose of letting off the water for the works of Dorman, and afterwards for the works of both said Dorman and Stedman, below. The stream had a circuitous course from its outlet to the pond formed by the dam "of said Stedman. The defendants dug a new ditch from West Pond, through their land above the plaintiff’s land, and turned the water into the same, before the time when they diverted it from the plaintiff’s mill, so that the water from its outlet does not pass in the ancient bed of the stream, but runs in a more direct course. There was a dam on the premises conveyed by Dorman to Stedman, at the time of the conveyance, and had been long before.</p> <p>All the defendants, except Miles D. Wells, justified the acts complained of in the plaintiff’s declaration, on the ground that they acted as said Wells’s servants, and by his command. As special matter of defence, said Wells offered to prove that he owned a furnace, on the aforesaid stream, about a mile below the works of Stedman; that said Dorman, on the 22d of April 1839, conveyed to said Miles D. Wells and to Moses Wells the land owned by Dorman, lying above Stedman’s land, and extending to West Pond, and also a strip of land, two rods wide, east of the plaintiff’s land, on which said Miles D. Wells dug the canal through which he diverted the water from the plaintiff’s factory, and also relinquished to said Miles D. and Moses the right to flow any other land which said Dorman owned, by a dam which might be, or could be, raised on the land thus conveyed; that the aforesaid Moses Wells conveyed to said Miles D. Wells all the interest of said Moses in said premises, on the 20th of March 1843 ; that said Stedman, while he owned the premises now belonging to the plaintiff, increased the height of his dam, so as to cause the water to flow back further than the right to flow was granted to him by Dorman’s aforesaid deed to him ; that he extended the east end of his dam upon said Miles D. Wells’s land, and thereby enlarged his pond of water, and thus wrongfully stopped the water that ought to flow to him, and to which he had right, by a j'ust construction of the conveyances to him, and of Dorman’s deed to Stedman. And he contended that, although the defendants did divert a part of the water, so that it would not flow to the plaintiff’s factory, yet that neither the plaintiff nor Stedman had a right so to extend his dam, or to increase its height, as to cause the water to flow back further than the right to flow it was granted to Dorman, by his deed of April 30th 1.833 ; and that he fsaid Miles D. Wells) was justified in diverting so much of the water as would keep it down to the limits of said grant; that is to say, so much of said water as he alleged was so wrongfully stopped as aforesaid. And he further contended, that he had a right to take the water so stopped, either by abating the plaintiff’s dam, (especially that part of it which was on said Wells’s land,) or by means of the canal com plained of.</p> <p>The defendants offered to show that the canal, which diverts the water, was dug entirely upon said Wells’s land, and that the bottom of its upper end was not lower than the sill of the sheep gate ; and that they had placed a gate, as a substitute for the sheep gate, in the'said canal from the pond, and as far up the stream as the sheep gate, and no lower than that gate was, and on said Wells’s own land.</p> <p>The plaintiff contended that if all, which the defendants thus offered to prove, was proved, it would form no defence to this action ; that he (the plaintiff) had a right to have all the water in the stream flow, in its ancient course, through his premises and past his factory, even if his dam was longer than he had a right to make it: That the defendants had no right to make a partition of the water flowing from West Pond ; because the grant of Dorman to Stedman was a grant to flow without the payment of damages, and did not preclude the plaintiff from the right of flo'wing the lands above the limits of the grant, upon payment of damages, whenever the gate, referred to in the deed to Stedman, should not be used, or should be removed, or whenever Dorman should convey the land above the plaintiff’s works, without a reservation : That, as the reservation in Dorman’s deed to Stedman was for the benefit of Dorman’s saw mill and clothier’s works below, and he has since, without any reservation, conveyed the lands above to the defendant Wells, and Moses Wells, on which said gate was, which he had a right to raise for the passage of the water for the benefit of said works, and the gate has been removed and the channel of the stream changed by the defendants, the plaintiff has a right to raise his dam to such height as his works may require, subject to the payment of damages, under the statute regulating mills : That if Stedman or the plaintiff had extended his dam upon the defendants’ land, it formed no justification of a diversion of the water from the land of the plaintiff.</p> <p>The judge being of opinion that the facts offered to be proved would constitute no defence to the action, the case was taken from the jury, and reserved for the consideration of the whole court.</p> <p>A new trial to be granted, if the offered proof would constitute a defence; otherwise, the defendants to be defaulted, and the plaintiff’s damages to be ascertained by an assessor.</p>

This was a bill in equity, in which the plaintiff prayed to be let in to redeem a lot of land in Lanesborongh.

This was an action of replevin, commenced in the court of common pleas. In that court, the defendant moved that the action should be dismissed, for the following reasons: “ Because the officer made his service, or commenced the service, before any bond was given, as the law requires.

<p>H. sold to A. and B. the personal property of M., and M. demanded it of A. and B., who refused to give it up, stating to M. that they bought it of H. who represented to them that he owned it. In the trial of an action of trover afterwards brought by M. against A. and B., to recover the value of the property, it was held, that the defendants might show, in their defence, notwithstanding their said statement fo M., that H. was M.’s agent, duly authorized to sell the property.</p> <p>On the trial of an action of trover for property sold to the defendant by a third person, after the defendant has given evidence that such third person was the plaintiff’s agent, duly authorized to sell the property, the plaintiff cannot give evidence that such third person, after the sale, declared that he had no authority to make the sale.</p>

The defendant was indicted in the court of common pleas, for' selling spiritous liquor, contrary to the Rev. Sts. c. 47, The defendant, after pleading guilty, moved in arrest of judgment, “ because it is not averred that the liquor, sold to be used about his house, was sold in a less quantity than twenty eight gallons.” This motion was overruled by the court of common pleas, held by Merrick, J. and the defendant filed exceptions.

This was an indictment on the Rev. Sts. c. 47, § 3, which is in these words: “ No person shall presume to be a retailer or seller of wine, brandy, rum, or other spiritous liquors, in a less quantity than twenty eight gallons, and that delivered and carried away all at one time, unless he is first licensed as á retailer of wine and spirits, as is provided in this chapter, on pain of forfeiting twenty dollars for each oflence.” There were several counts in the indictment; and…

<p>Trespass upon the case, against the sheriff of Hampden, brought by the administrator of the estate of Frederick F. Parker, late of Pepperell in the county of Middlesex. The declaration set forth, that the plaintiff’s ■ intestate, in March 1840, having a demand against Nathaniel B. Moseley of Springfield, sued out a writ against him, returnable to the court of common pleas next to be held in the county of Middlesex, and delivered it to W. H. Foster, a deputy of the defendant, who attached thereon a stage coach and eight horses, of the value of $1000, and duly returned the writ ; that said intestate duly entered his said writ, and prosecuted his action thereon to judgment, which he recovered against. said Moseley, at the supreme judicial court held at Lowell, on the second Tuesday of April 1841, for $747-59, damages, and $40-65, costs of suit, and took out execution on the 1st of May 1841; “ and said execution was, on the day and year last aforesaid, delivered to the defendant’s deputy, for service; yet neither the defendant nor said Foster safely kept the property aforesaid, so that the same was seized and sold on said execution, nor caused the same to be so seized and sold; nor was ■ said execution in any part satisfied.”</p> <p>The general issue was pleaded, with notice that the defendant would rely on the statute of limitations; also on the fact that no demand was made of his deputy, Foster, for the property alleged to have been attached, within thirty days after the rendition of judgment in the original action; and that, before said judgment, the said Foster had ceased to be the deputy of the defendant.</p> <p>The trial was before Shaw, C. J. who made the following report thereof: The plaintiff offered evidence of the original attachment by Foster, the recovery of judgment, the issuing of the execution, and the transmission of it to Foster, and the delivery of it by Foster, then out of office, to D. M. Moore, a deputy of the defendant; and also a certificate of the clerk of the courts in Middlesex, that the execution had not been returned.</p> <p>The defendant contended that this action could not be maintained against him, for the default of Foster in not keeping the attached property, without proof that a demand was made upon Foster, by an officer having possession of the execution, with authority to serve it; that such demand must have been made within thirty' days from the rendition of judgment; that no such demand was made, or, if it was made, that it was complied with.</p> <p>There was evidence tending to show that, when Foster made the original attachment, he delivered the coach and horses to Jonathan O. Moseley, and took his receipt therefor, bearing the same date with the return of the attachment, (March 16th 1840,) by which said Moseley acknowledged the receipt of the property as attached, and promised to deliver the same on demand, or pay all damages. On this receipt was an indorsement, signed by said J. O. Moseley, dated May 10th 1841, acknowledging a demand made on him for the goods on that day, by D. M. Moore, deputy sheriff.</p> <p>There was evidence tending to show that Foster and Moore went together to said Jonathan 0. Moseley, at West Springfield, with the execution and receipt, and that a demand was there made by one or the other, or both, as certified on the receipt; that the coach and horses were not delivered ; that they were then in the joint possession of said Jonathan 0. and his brother Edward, and employed on a line of stage coaches between Springfield and Lowell. No other evidence of demand was given.</p> <p>There was also evidence tending to show that, after the demand made upon J. O. Moseley, the receipter, in presence both of Foster and Moore, and after the receipter acknowledged such demand, Foster delivered the receipt to Moore, who accepted it, and, at some time afterwards, commenced an action upon it. Whereupon it was ruled, that if Foster, who, in contemplation of law, had the custody of the property, under the attachment, was out of office, before the rendition of judgment, he was bound to keep the goods safely thirty days after judgment; but that, in order to charge him, or the sheriff for his default, it must appear that a demand was made on him, unless waived by him, within thirty days after judgment, by an officer having the authority, and charged with the duty of collecting and satisfying the execution; and that, unless such demand was made, or waived, there was no default for which the sheriff was responsible; that Moore, who received the execution from Foster, was, or was not, to be considered as if directly employed by the plaintiff; that if he was not to be so considered, then no person was evei authorized and employed by the plaintiff to serve the execution, no demand whatever was made on Foster, and he was in no default; that if he was to be considered as if he had received the execution from the plaintiff, (the supposition most favorable for the plaintiff,) then he was to be considered as the agent for the plaintiff, to make the demand of Foster.</p> <p>On this state of the evidence, the presiding judge was of opinion, either, 1st, that there was no demand by Moore, of Foster, for the delivery of the specific goods attached, or if there was, then, 2d, that the delivery of the receipt, by Foster, to Moore, after a demand on the receipter by Foster, or by Moore in Foster’s presence, (which would be a constructive demand by Foster,) rendered the receipter responsible on his contract; and that the acceptance of the receipt by Moore, under the circumstances, was admitted by him as a sufficient compliance with such demand, and a waiver of any further performance.</p> <p>Upon the expression of this opinion, the plaintiff, waiving his right to go to the jury, upon any question of fact, became nonsuit, subject to the decision of the whole court upon the correctness of this opinion.</p>

<p>[n an action against a sheriff for the default of A., his deputy, the declaration averred that the plaintiff recovered judgment against M., and took out execution thereon, and delivered it to said A.; that goods and real estate were attached on the original writ, by F., another deputy sheriff, and were held by him to satisfy said execution; yet that A. neglected to levy the execution on the real estate attached, and to seize and sell the goods attached, and to return the execution : The agreed facts in the case were, that the execution was sent to F. after he was out of office, and he delivered it to A. within thirty days after said judgment was rendered, and informed him that the goods, which F. attached on the origina/ writ, were delivered to 0., who gave a receipt for them, and redelivered them tc M., the debtor, who afterwards sold them; that F. and A. went to 0.\s house, and A. demanded of him the attached goods for which he had given a receipt; that F. then delivered the receipt to A., on the back of which 0. had written and signed an acknowledgment that A. had demanded of him the goods therein mentioned; that A. accepted said receipt, and that 0. promised to pay the amount in a short time, but afterwards became insolvent; that A. had no knowledge of the attachment of the real estate of M. within thirty days after said judgment was rendered, that, before the expiration of that time, M. had alienated said estate; that no instructions were ever given to F. or A. to levy on real estate, or in what manner to collect the execution; and that A. never returned the execution into the clerk’s office, but enclosed it in a letter, directed and sent by mail either to the clerk or to the creditor’s attorney.</p> <p>Held, that A. was not guilty of any default, for which an action could be maintained against the sheriff, besides that of not returning the execution, and that, for A.’s default in not returning the execution, the sheriff was liable to nominal damages.</p>

Assumpsit for money had and received by Israel M. Parsons, the defendant’s testator, to the use of the plaintiffs.

<p>In an action by the payee against a surety on a promissory note payable in five months, at which time the principal was able to pay it, but had become insolvent before the action was commenced, the defendant cannot give in evidence the plaintiff’s admission that the defendant refused to sign the note, unless the plaintiff would agree that he should not be held if the plaintiff should not sue the note as soon as it was payable, and that the plaintiff agreed to sue it at that time.</p>

This was an action upon the case, to recover damages for a deceit in the sale of a horse. At the trial in the court of common pleas, before Wells, C. J. the plaintiff introduced evidence tending to show that, at the time of the sale of the horse to the plaintiff, the defendant made certain representations concerning the horse, and that those representations were false.

Assumpsit on this promissory note: “ West Springfield, April 20 1814. For value received, I promise to pay Daniel Tattle one hundred dollars, as a legacy, to be paid at the decease of my honored father, Titus Tuttle. Henry Tuttle. Test. Luke Parsons.” The defendant filed, with his plea of non assumpsit, a specification of payment and discharge, in defence.

This was an action on a policy of insurance, dated June 1st 1838, whereby the defendants caused Seth Williams, his heirs, executors, administrators and assigns, to be insured, for the term of seven years, against loss or damage by fire, “ under the conditions and limitations expressed in the rales” of oaid company, the sum of $1200, viz. on his dwelling-house, occupied by himself, $500; on his barn, on same premises, $200; and on his furniture, within said house, $500; “…

This was a writ of dower, in which the demandant claimed, as widow of Arthur Burbank, her dower in land of which he was seized during her coverture. At the trial before Dewey, J. the demandant, to prove u demand on the tenants, produced the following paper, signed by her : “ To Messrs. Heman, Rodney and Henry Day.

<p>This was an action of assumpsit, on the general counts, and was commenced on the 25th of August 1845. The plaintiff filed the following, as a bill of particulars: “ Plaintiff claims of defendant payment for labor done and materials furnished in rebuilding and repairing house in 1845. $300.”</p> <p>The defendant filed, with a plea of the general issue, a specification of defence, stating that he was an infant, and that the plaintiff had recovered judgment, for the same claim, of Mary Cadwell, the defendant’s mother. A trial was had in the court of common pleas, before Ward, J. who made the following report thereof:</p> <p>“ It appeared in evidence, that the defendant’s father, Stephen Cadwell, died in August 1844, and left a will which 'was duly proved in 1845, by which he bequeathed to the,said Mary Cadwell, his wife, the use of one undivided third part of his real estate for life, and the residue thereof to the defendant; that after the decease of said Stephen, his widow occupied and had the care and charge of the mansion house, and furnished a home there for one of her daughters and several young granddaughters, and had also the management of the farm; that the defendant usually lived abroad, but sometimes returned home; and that he worked on the farm during the haying season ; that the house was old, and needed shingling and clapboarding ; but there was no evidence that it leaked, or that it would have suffered materially if no repairs had been made till 1846. Some of the plaintiff’s witnesses testified that it was in as good repair as many dwelling-houses occupied by respectable families in the vicinity, and that, in their opinion, the repairs might have been safely delayed for a year; that the house consisted of a main building, one and a half stories high, containing two rooms on the first floor, and a rear part, of one story, containing a kitchen, buttery and bedroom ; and that the front and rear part had each a chimney, and that the principal chimney did did not draw smoke well.</p> <p>“ The plaintiff did not prove any express contract with any one for making the repairs charged in his bill; but he proved that Mrs. Cadwell, the defendant’s mother, employed other carpenters, with whom the plaintiff had no connexion, and over whom he had no control, to take the back part of the house entirely away, and erect in its stead a new frame somewhat larger than the old one, and also to take off the roof of the main house, and to cut away a portion of the rear of the main building, and add to the frame another half story, so as to make the front building two stories in height; that after the back building and the roof had been taken away, and during the time when they were raising the new frame, the plaintiff and his workmen were hired, began to work, and were then preparing stuff for a new covering; and that, when the frame was prepared for him, he began to put on the covering ; that he clapboarded and shingled the house, made some new doors and window frames and sashes, laid some floors, and furnished the brick and lime for rebuilding the chimneys; and that the value of his work and materials was three hundred dollars.</p> <p>11 To prove that the repairs were made for the defendant, the plaintiff gave evidence that the defendant was repeatedly at home, while the work was going on, and that, on one occasion, he wished to borrow money, saying that he had some to pay to the plaintiff; but the plaintiff’s witnesses also testified, that the defendant’s mother had the principal direction of the repairs, and lived in the house while the same were going on.</p> <p>“ The defendant gave evidence that he was twenty one years old on the 7th of January 1846 ; that the plaintiff, on the 8th of August 1845, sued the said Mary Cadwell, in the' court of common pleas, for the said work and materials, and at February term, in 1846, recovered judgment against her foi $240 and costs, and had taken out execution thereon; but that said execution was not satisfied.</p> <p>“ The defendant’s counsel requested the court to instruct tee jury, that if they believed the defendant to be a minor when said work was done and said materials found, he was not liable to pay for them; but the court declined to give this instruction, and charged the jury, that if the mother alone made the contract, the son was not liable; that if the son employed the plaintiff alone, or jointly with the mother, he was not liable, if he was then a minor, unless the work and materials furnished by the plaintiff were actually necessary to prevent immediate serious injury or destruction of the property; that if ths repairs and work done by the plaintifl could have been postponed until the next year, or until the defendant’s majority, they were not necessaries, and the defendant was not liable ; that in passing upon this point, the jury might look to the actual condition in which the property was, at the time when the plaintiff was first employed, and began to work; that if, at this point of time, the roof had been stripped off, the chimneys taken down, and the frame exposed, by other workmen not connected with the plaintiff, and over whom the plaintiff had no control, so as to expose the property to immediate and irremediable injury, then so much of the plaintiff’s work and materials as was requisite to prevent this, were necessaries, and if the defendant contracted for them, he was liable.</p> <p>“ The jufy found a verdict for the plaintiff for $300. Upon being inquired of by the court, they stated that they had found the defendant to be a minor when the work was done, and that the whole of the plaintiff’s work and materials were necessary. The defendant excepted to the ruling of the court.”</p>

Scire facias against the defendant, as bail of William M’Cune. Trial before Wilde, J. who made the following report thereof: On the 6th of January 1844, the plaintiff sued out a writ against William M’Cune, returnable at the court of common pleas for the county of Hampden, June term 1844, directed to the sheriff of Worcester, or his deputy.

Assumpsit by the administrators of Pearly Truesdell, deceased, to recover the amount of a note, in their possession, of the following tenor : “ Monson, May 15, 1837. Three years after date, I promise, for value received, to pay William Russ, or bearer, one hundred and eighty dollars, with interest, payable at the said Thompson’s now dwelling-house in Monson, Said note to be kent in the hands of Pearly Truesdell.

<p>A testator devised and bequeathed all his property to W., on condition that tie should pay all the testator’s debts and the legacies given by his will; and he also appointed W. executor of his will: Among the legacies given by the will was one to B. which was to be paid in two years after the testator’s decease: When the will was made, the testator held several promissory notes against B., which were overdue, and which were of greater amount than the legacy to B.: W. accepted the devise and bequest made to him, but declined the trust of executor; and administration on the testator’s estate, with the "will annexed, was granted to a third person: G. brought an action against B., and summoned W. as B.’s trustee Held, that W. was not chargeable as trustee of B.</p>