Volume 54 — Massachusetts Reports

This was a writ of entry, to which both tenants, Henry D. Bull and Joseph Ball, pleaded the general issue, and Joseph-Bull filed a special notice of a disclaimer.

The plaintiffs set forth, in a bill in equity, that they were administrators of the estate of Joel Root, late of Granville, to whom Rowland Bancroft and Joseph W. Bancroft, on the 24th of November 1827, made ' a deed of mortgage of two parcels of land, [described,] the condition of which deed was, that if said Rowland and Joseph W. should pay to said Joel their note of hand, of the same date, for $136, payable in one year from its date, with interest annually, and should…

This was an indictment, in which it was alleged, in the first count, that on the 1st of April 1844 there was, and from thence to the day of the finding of said indictment “ hath been, and still is, a common and public highway in the town of Hatfield, in the county of Hampshire, leading from the north end of Hatfield Street, in Hatfield aforesaid, through the North Meadows in said Hatfield, to a part of said meadow, called Bashan, for all the citizens of the Commonwealth to…

<p>A sold certain personal property to B., as stock for a tannery, and took a- note therefor, payable in four months, with interest annually; and B., to secure the note, made to A. a mortgage, which was duly recorded, of the same and other property, and also of whatever stock, of every description, that might thereafter belong to B., wherever situated, and whether manufactured or not, or whether at market or not, or the proceeds of the same, if sold, and all leather that might thereafter be manufactured from the proceeds of property then on hand, and in whatever shape it might thereafter exist, so that the then existing and the future property and earnings of B.’s tan works might stand conveyed, pledged, and hypothecated to A. Held, that A. had no legal or equitable lien on any property which was not in existence at the time of the mortgage, but which afterwards came into B.’s hands, unless he had done some act by which he obtained possession of that property; and that, as he had done no such act, and as A.’s property, acquired subsequently to the mortgage, had been assigned under S¿. 1838, c. 163, B. could not, under § 3 of that statute, require that such property should be sold, and the proceeds applied towards the payment of A.’s note to him.</p>

This was a bill in equity, in which it was alleged that Oliver Smith, late of Hatfield, died on the 22d of December 1845, leaving a last… Held: according to said order and appointment of the judge of probate, at which meetings electors were duly chosen, who met on said 6th of September, and elected Osmyn Baker, John Dickinson, jr. (the plaintiffs) and Austin Smith (the defendant) as the three trustees provided for by the third section of said will; that said trustees, so…

<p>When a party makes a special agreement to do certain work within a fixed time, and fails to do it in the manner and within the time agreed, yet if he acts in good faith, and the other party receives a benefit from the work which is done, the law implies a promise by him to pay such sum therefor as the benefit which he receives is reasonably worth to him, and he is liable for such sum, in an action of indebitatus assumpsit.</p> <p>County commissioners ordered a road to be altered and repaired by a town, in a certain manner and within a certain time: The town chose a committee to superintend the alterations and repairs, and to contract for payment therefor: The committee put up the work, at auction, to the lowest bidder, and A. became such bidder, and did work on tie road, for which he sued the town, in an action of indebitatus assumpsit: The town gave evidence, in defence, that the committee, when they put up the work at auction, announced that the road was to be made more thoroughly and safely, in certain particulars, than was required by the order of the commissioners, and that A. had not so made the road. Held, that A., for the purpose of showing that he performed his work on the road in good faith, might give evidence that he did not hear the announcement of the committee, at the auction, but believed that he undertook to do the work on the road in the manner prescribed by the order of the commissioners.</p> <p>Xn an action against a town to recover pay for repairing a road which the county commissioners had ordered to be raised four feet in a certain hollow, the plaintiff jaay, for the purpose of proving that he had raised the road four feet, as ordered, and in good faith supposed that he had so raised it, give evidence that the commissioners, before they made the order, placed a stake in the ground, and stated that they should require the road to be raised as high as the top of the stake, and that the plaintiff had raised the road to that height.</p> <p>And in such action against a town, though the plaintiff did not finish his work within the time agreed on between him and the committee of the town, with whom he made the agreement, yet if the committee and other principal inhabitants of the town knew that he continued his work after the agreed time for finishing it had expired, and made no objection to his proceeding, the jury may infer that the town had waived the agreement as to time.</p>

This was an action of debt on a bond, dated September 1st 1834, given to the judge of probate for the county of Hampshire, by Aaron Dickinson, guardian of Medad D. Smith, a minor, and by the other defendants, as sureties for said Aaron, in the penal sum of $2000, conditioned (in the form usually adopted at that date) for the faithful performance, by the said Aaron, of the duties by law required of him, as such guardian.

<p>This was an action of trespass upon the case, to recovet damages alleged to have been sustained by the female plaintiff, by reason of a defect in a highway, which the defendants were by law bound to repair. The declaration described the highway as “ leading from Colerain to Whittingham in Vermont, passing by and near the houses of Daniel Donelson and Timothy Harris ; ” and the defect complained of was alleged to have existed “ between the houses of said Donelson and Harris.” The case was tried before Dewey, J. and his report thereof was as follows:</p> <p>It appeared that the highway mentioned in the declaration ran from Donelson’s house, westerly, to Harris’s house ; that, at a point about half way between these houses, another public way or lane, which the defendants were bound to repair, ran from said highway, at a right angle, southerly, to the plaintiffs’ house; that there was a path from said lane, beginning near the plaintiffs’ house, and running northeasterly, across the plaintiffs’ fields, till it came to said highway at a point between said Donelson’s house and the said lane; and that this path was made by said Stephen (one of the plaintiffs) for his own convenience. The evidence tended to prove that the accident complained of happened at a point between the fences erected on each side of the highway described in the declaration, and directly opposite to the place where said path through the fields entered said highway. There was also evidence tending to prove that, at the place of the accident, the travelled path, many years ago, ran nearer to the fence on the southern side of said highway, than to the fence on the northern side thereof; that the defendants, about twenty years ago, worked a new path for travel, nearer the northern fence, and left a space, of about ten feet, between that and the old path; that some person, in 1845, put several cart loads of stones into the old path; and that, at the time of the accident, the new or northern path was, and for some time had been, the commonly travelled path, and that the old path had become covered with grass ; that the new travelled path was higher than the old one ; and that from the new travelled path to the old one was a sudden and steep offset.</p> <p>There was also evidence tending to prove the following facts : That on or about the 26th of November, before the accident, the lane leading from said highway to the plaintiffs’ house was obstructed by snow, so as to be impassable ; that the plaintiffs thereupon resorted to the path through the fields to the said highway; that the lane was, shortly afterwards, rendered passable, and remained so for a few weeks, when it was again rendered impassable by snow, and so remained until and at the time of the accident; that the plaintiffs then again resorted to said path, for the purpose of passing to and from the said highway ; that this path was made where there was but little snow, and was in the most eligible place for said purpose; that the ground to the eastward of the path was not of such a nature as to be convenient or safe for the passage of a sleigh; that on the morning of the accident, the plaintiffs went to the village of Colerain, and on returning, in the evening, they passed, from the eastward, on said highway, to the place of the accident, and there turned to pass down from the then travelled path near the fence, on the northern side of said highway, to Tie old path, so called, near the fence on the southern side, for the purpose of passing into the said path across the fields, on their way to their house; and that, in thus passing down from the travelled path in said highway to the old path, so called, the injury complained of was received; that the alleged defect in said highway was south of the said travelled path, in a place not necessary to be passed over by persons going east or west, but necessary to be passed over by persons wishing to go into the path through the fields, to go to the house of the plaintiffs.</p> <p>The jury were instructed that they had a right to infer, from the evidence, that the highway extended beyond the limits of the then travelled path ; that if the injury arose from any defect, or want of repair, in any part of the wrought portion of the road, or that part appropriated to travelling, the defendants were responsible therefor; that if, upon the highway, running east and west, a suitable and proper road "for travellers was made and wrought, safe in its construction, of proper width for travellers to pass and repass, with proper facilities to turn upon said road, and in all respects such that the plaintiffs might have travelled with safety, continuing thereon, and if the lane road, being that commonly used by the plaintiffs to pass from the said highway to their house, was then, and for a long time had been, so obstructed with snow as to be impassable by travellers, and this fact was well known to the plaintiffs at and before the time they commenced their travelling on the day of the accident, and they, while travelling on said highway, turned out of the main road, and passed southerly down a declivity, out of the main road, for the purpose of entering upon a temporary way opened by them upon their own land, and in thus passing from the travelled path- of the main road to the way over their land, at a place without the limits of the wrought or made road, but within the limits of the highway, taking the same as bounded by the fences on each side, by reason of an obstruction upon such portion of the highway, without the limits of the wrought or travelled way, the feina.e plaintiff, while they were thus passing to their own private way received the injury complained of, by the upsetting of theii sleigh, as alleged in their declaration, the defendants were not responsible for the damage thereby sustained.</p> <p>The jury returned a verdict for the defendants, and thereby settled the point, that the old path, so called, on the southern side of the highway, had ceased to be a part of the worked or travelled pathway, even if it was within the limits of the highway.</p> <p>The verdict is to be set aside, if the instructions wc re not sufficiently favorable to the plaintiffs; otherwise, judgment is to be entered on the verdict.</p>

Assumpsit on the money counts. Trial in the court of common pleas, before Wells, C. J. who signed the following bill of exceptions: “ The plaintiffs gave evidence sufficient, prima facie, to support their action.

Assumpsit on the following promise: “ Heath, April 13th 1832. I promise to pay David Henry, or bearer, the annual interest of ten notes which are due by annual payments of ten years, signed by Elijah Flagg and Joshua Flagg, and backed by Silas M. Flagg, in which it is not named that it is compound interest; and this writing is to show that I promise to pay the compound use on said notes, if not paid by the signers.

<p>The publication of a false and malicious libel has always, by the common law of Massachusetts, been an offence punishable by indictment.</p>

Action of waste. The plaintiff’s declaration alleged that the defendant held a certain messuage (described) in Colerain, as tenant for life ; that the plaintiff held the next immediate estate of inheritance therein ; and that the defendant “ did make waste, sale and destruction in the said messuage,” (setting forth the acts of waste,) to the damage of the plaintiff.

<p>Indebitatus assumpsit for work and labor. Af the trial in the court of common pleas, before Wells, C. J. the defendant, after the plaintiff had given evidence of the work for which he claimed payment, introduced an indenture of apprenticeship, (the contents of which sufficiently appear in the opinion of the court,) by which the plaintiff was bound to him, as an apprentice, by an overseer of the poor of the town of North Kingston in the State of Rhode Island; and he contended that this indenture constituted a bar to this action, inasmuch as said work was done during the time for which the plaintiff was so bound to him.</p> <p>The judge ruled that although the indenture was executed conformably to the law of Rhode Island, it constituted no bar to this action, unless the covenants therein contained had been fully kept by the defendant. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions to the aforesaid ruling.</p>

This was an action of trover for a horse, and was tried in the court of common pleas, before Wells, C. J. At the trial, the only question was, whether the taking of the horse by the defendant, as collector of taxes for the town of Deerfield, for the year 1845, was legally justifiable.

Assumpsit to recover, among other demands, the amount of the following note: “ Cabotville, July 17th 1843. Six months from date,-1 promise to pay S. W. Eldridge or order, at the Farmers & Mechanics Bank, Hartford, one hundred forty five dollars, value received, with interest.

<p>This was an action of trespass upon the case, founded on St. 1840, c. 85, to recover the amount of a loss which the plaintiffs sustained by a fire alleged to have been communicated to their dwelling-house hy a locomotive engine of the defendants. The parties submitted the case to the court, on the following agreed facts :</p> <p>“ On the 9th of July 1845, a carpenter’s shop, owned ty William W. Boyington, adjoining the rail road track of the defendants, near their passenger depot in Springfield, was destroyed by fire communicated by the locomotive engine of the defendants. There was a high wind, which wafted sparks from this shop, while it was burning, over Lyman Street, sixty feet, upon the dwelling-house of the ■ plaintiffs, and set it on fire, whereby it was partially consumed.</p> <p>“ The plaintiffs were insured by- the Springfield Mutual Fire Insurance Company, who requested the plaintiffs to commence a suit against the defendants, to compel payment by them of the plaintiffs’ loss, and offered to indemnify the plaintiffs from costs, and to save them harmless, in reference to said suit. The plaintiffs refused to commence a suit, as requested, but demanded the amount of their loss of the said insurance company, who paid the same, first notifying to the defendants that they did not intend thereby to relinquish any claim which they might have against the defendants for the amount, in their own or in the plaintiffs’ names. The insurance company, in the name of the plaintiffs, then brought this action to recover the amount paid by said company to the plaintiffs. After the action was commenced, and before the entry of the writ, the plaintiffs executed an instrument, declaring that they had received payment of their loss, of the insurance company • that they had no claim against the defendants ; that they (the plaintiffs) had not authorized the commencement of this action against the defendants, and did not wish to have it prosecuted; and fully releasing any claim which they might have against the defendants on account of said loss,</p> <p>“At the May term of this court, in 1847, the case was opened to the jury, and the defendants presented the aforesaid release from the plaintiffs, and contended that the insurance company, in consequence of this release, could not maintain this action. The court ruled, that receiving payment of the loss by the plaintiffs of the insurance company, constituted an equitable assignment, by the plaintiffs, to the company, of any claim they might have had. Whereupon the parties agreed the facts before recited in relation to the origin of the fire.</p> <p>“ In case the court are of opinion, that receiving payment, by the plaintiffs, of the insurance company, amounted to an equitable assignment by them of any claim they might have had against the defendants; that the release referred to was in fraud of the insurance company; and that the defendants are liable for the loss, on the facts stated, the plaintiffs are to have judgment for the sum of §623-65 damages, and interest on this sum,-from the 14th of November 1845. Otherwise, the plaintiffs are to become nonsuit.”</p>

<p>A declaration, in an action of trespass quare clausum fregit, described the close as bounded northerly by land of S. and others, easterly by the old N. B. Turnpike, southerly by the road leading to W., and westerly on W. River. Held, that this description sufficiently complied with St. 1839, c. 151, § 3, which requires that “ the close or place of the alleged trespass shall be designated by name or abuttals, or other proper description.”</p> <p>By a grant of a mill, the land under the mill, and land adjacent thereto, so far as necessary to its use, and commonly used with it, and no further, will pass by implication : So of an exception of a mill from a grant of land.</p> <p>A. granted to B., by deed, a tract of land, bounded on all sides by the lands of persons named, excepting therefrom “ the mills and water privileges ” then owned by A.: At the time of this grant, about an acre of land lay common and unfenced, as a mill yard, and was used for putting timber thereon, and for passing and repassing to and from the mills, but part of that acre was afterwards used, by the owners of the mills, for a garden, and for the site of buildings not connected with the mills. Held, that the land which had been thus used for such buildings and for a garden was not within the exception in A.’s deed.</p>

<p>The indictment, in this case, alleged that there was a common and public highway in the town of Sutton, called the Old Central Turnpike, and that the defendant, on the 1st of August 1846, “did unlawfully and injuriously put, place, lay and continue a large quantity of stones, in and upon a part of said highway, to wit, upon a space thereof ten rods long and one rod wide, and the said stones, so placed as aforesaid, he the said Wm. King, from said first day of August, until the finding of this bill, unlawfully and injuriously did keep, continue and maintain, in and upon said highway, whereby the same has been, during all the time aforesaid, and still is, greatly narrowed, obstructed and stopped up,” &c. “ against the peace,” &c. “ and contrary to the form of the statute in such case made and provided.”</p> <p>It was admitted, at the trial in the court of common pleas, before Merrick, J. that the Central Turnpike Corporation, established by St. 1824, c. 13, was duly organized, and laid out its road four rods wide, and made it of lawful width for travel; that in the year 1837, said corporation surrendered its corporate rights, and that the county commissioners laid out the same road, and of the same width, as a common highway, conformably to the provisions of the Rev. Sts. c. 39.</p> <p>It was also admitted by the defendant, that he, in October 1846, erected about six rods of stone wall, a little less than a rod within the lines of said highway, and between the travelled way and his land, for the purpose of enclosing that part of the highway, around which said wall extended, with his land, and as a part of it.</p> <p>The defendant then offered to introduce evidence tending to prove that the part of said highway, where said wall was erected, and the space between said wall and the exterior line of that side of said highway, had never been wrought nor prepared for travel, either by said turnpike corporation or by any persons; that the same had never been used for travel, and could not be travelled over, by reason of the ledges, rocks and stones, in the place where said wall was erected, and in said space; that there was, after the said wall was erected, as ample and convenient room for all travel on said highway, as there was before; and that said wall did not, in any degree, obstruct or hinder the travel on said highway. But the court ruled, that such evidence, if admitted, would not constitute a good defence to the indictment, and refused to admit it. The jury found the defendant guilty, and he filed exceptions to the ruling of the court.</p>

<p>The defendants were indicted, in several counts, for selling spiritous liquor, contrary to the provisions of the Rev. Sts. c. 47, §§ 1, 2, 3. When they were set to the bar to be tried, in the court of common pleas, before Merrick, J. their counsel requested the court to put the following questions to the first juror who was called: “Have you formed or expressed any opinion, or are you sensible of any bias or prejudice upon the questions of law involved in this indictment, or the law on which it is founded, or upon the questions whether so much of the 47th chapter of the revised statutes, as was repealed by St. 1838, c. 157, and §§ 1, 2, 3 of said 47th chapter, are valid and in force, and the enactments, contained in said sections, constitutional, or not ? ” These questions were propounded, by the court, to the juror, who answered, that he had formed and expressed the opinion that the said first three sections of the said chapter were valid and in force ; that so much of the said chapter as was repealed by St. 1838, c. 157, was revived by the enactment of St. 1840, c. 1; and that the provisions of said first three sections of the said chapter 47 of the revised statutes were constitutionally enacted. The defendants’ counsel thereupon objected, that said juror wa$ disqualified to act as a juror, as he had formed and expressed an opinion upon one of the essential elements of the issue to he tried upon said indictment. But the court, being of opinion that it did not appear, from the juror’s answers, that he did not stand indifferent, overruled the objection, and ordered him to be sworn. The defendants’ counsel then requested the court to ask the said juror, “ whether, having formed an opinion, and having a bias on his mind, that the first three sections of c. 47 of the Rev. Sts. are in force, and that so much of the said chapter as was repealed by St. 1838, c. 157, was revived by St. 1840, c. 1, and that the provisions of said three sections were constitutionally enacted, he could hear, appreciate, and give due weight to, and be fairly influenced by, the arguments of the defendants’ counsel, that said three sections are not in force, and were not revived by St. 1840, c. 1, and that the provisions therein were not constitutional.” But the court declined to permit the question to be put; and the juror was then sworn. A jury was empannelled, and a verdict was found against the defendants, who alleged exceptions to the rulings and decisions of the court.</p>

Trespass for taking and carrying away goods. At the irial in the court of common pleas, before Washburn. J. the plaintiff offered evidence of the value of the goods alleged, in the declaration, to have been taken by the defendant. To the admission of this evidence the defendant objected, because there was no averment in the declaration that the goods were of any value.

<p>By the Rev. Sts. c. 65, §§ 11,14, the sale, by an administrator, of real estate mortgaged to his intestate, and of the debt secured by the mortgage, is required to be by license of the probate court, obtained in the manner required, by Rev. Sts. c. 71, altnough neither the intestate nor the administrator has taken possession of the estate.</p>

<p>Assumpsit on the money counts, to recover the contents of this note: “ Boston, January 11th 1836. For value received, we jointly and severally promise to pay to the order of Daniel Mann six thousand three hundred and eighty dollars and twenty five cents in one year from the 22d day of August next, with interest annually from the 22d of August last. Daniel Mann, Principal.</p> <p>Attest: Samuel Kendall, Surety.</p> <p>J. Willard to D. Mann.</p> <p>T. Peckham, jr. to D. M. and S. K.”</p> <p>The case was submitted to the court, on the following agreed statement: “ Said note is indorsed by the said Daniel Mann, by his writing his name across the back thereof, which is attested as follows, viz. ‘ Witness, J. Willard.’ The plaintiff is the holder of said note, and the writ is dated May 12th 1846. The defendant relies upon the statute of limitations.</p> <p>“ Said J. Willard, the attesting witness, saw the defendant sign said note and write his name upon the back thereof; and said witness, at the same time, attested both said signatures in the defendant’s presence. The defendant can prove, by said witness, if it be competent evidence and legally admissible, that said note was not originally indorsed to the plaintiff, but to one Rufus K. Goodnow, by whom it was passed to the plaintiff; but the plaintiff contends that such parol testimony is not legally admissible.</p> <p>“ If the plaintiff is entitled to recover, upon the foregoing statement of facts, the defendant is to be defaulted; otherwise, a nonsuit is to be entered.”</p>

Trover for certain tools and implements of trade, which were alleged to be by. law exempted from attachment, but which were attached by Edwin Eaton, a deputy sheriff, one of the defendants, on a writ against the plaintiff, in favor of Stephen M. Holbrook, the other defendant.

<p>Assumpsit, by the surviving partner of the firm of Holbrook & Houghton, on a note for 0349-50, given by the defendant to said firm, dated March 4th 1844, payable in four months. The defendant filed an account, in set-off, of one hundred and fifty dollars, “ cash paid to Stephen M. Holbrook,” (the plaintiff,) in February 1845, and offered evidence, at the trial in the court of common pleas, before Washburn, J. to show that he lent that sum to the plaintiff. But the judge ruled, that money lent by the defendant to the plaintiff could not be set off against a claim in favor of Holbrook & Houghton, though sued by Holbrook alone, as surviving partner. To this ruling the defendant alleged exceptions.</p>

Bill in equity. The plaintiff alleged that Crocker Nye, on the 23d of July 1822, mortgaged certain real estate to Elizabeth Waldo, to secure payment of $500, and on the 15th of February 1827 mortgaged certain other real estate to the Massachusetts Hospital Life Insurance Company, to secure payment of $12,000; and that Dulcena Nye, Wife of said Crocker, executed both said mortgages, with him, and released her dower in the mortgaged premises: That on the 14th of November 1840,…

Trover for one hundred and twenty pairs of boots, attached by the defendant, a deputy sheriff, as the property of Phinehas Brooks. At the trial in the court of common pleas, before Washburn, J. it was admitted that the boots were in the possession of said Brooks when they were attached, and that they were afterwards sold by the defendant, on an execution against Brooks.

Writ of entry, to recover possession of a parcel of land in Worcester. At the' trial before Dewey, J. the demandants claimed title to the demanded premises through John Knower, who acquired the same by a deed made to him by Benjamin Jepson and others, bearing date January 4th 1782. It appeared that said John Knower entered upon said premises under said deed, and occupied them; and no question was made as to his title thereto.

<p>This was an action of trespass, originally brought m the tourt of common pleas. The first count in the declaration alleged “ that said Ryan, on the first day of May last, [1846,] broke and entered the dwelling-house of said Sawyer, situate in Lancaster, being the same dwelling-house occupied by said Sawyer, with force and arms, and did then and there take and imprison the said Sawyer for a long space of time, to wit, for the space of one hour, and held him so imprisoned during all the said time, without any legal or probable cause, against the will of said Sawyer, and against the law of the land, and during said imprisonment threatened said Sawyer, and put him in great fear, for the purpose of unjustly extorting money from said Sawyer, and other wrongs to said Sawyer then and there did, against our peace,” &c. The second count, after averring the breach and entry of the plaintiff's dwelling-house, as in the first count, alleged that said Ryan “ did then and there take and imprison said Sawyer, and held him there detained for a long time, to wit, for the space of one hour, without any legal or probable cause, against the law of the land, and against the will of said Sawyer, and other wrongs to said Sawyer then and there did,” &e. The third count averred the breach and entry of the plaintiff’s dwelling-house, as in the first two counts, and alleged that the defendant ‘ then and there threatened said Sawyer, and put him in great fear, and endeavored to induce and compel him to pay a large sum of money to him, the said Ryan, without any legal cause, against the law, and against the will of said Sawyer, and other wrongs then and there did,” &c.</p> <p>The defendant pleaded the general issue, and set forth, m a specification of defence, that he should justify, on the ground that, at the time and place mentioned in the plaintiff’s writ, the defendant was acting as assistant of a constable of the town of Lancaster, who had lawfully commanded his aid in the service of a search warrant; and that all the trespasses, pretended in the plaintiff’s writ, were lawful acts done as such assistant.</p> <p>A trial was had in the court of common pleas, before Mer-Hck, J. and a verdict was found for the plaintiff, and damages assessed at one cent. The plaintiff moved for full costs which the court allowed. The defendant alleged exceptions.</p>

<p>A wife, by joining with her husband in a written contract with a mechanic for furnishing labor or materials for erecting a building on her land, does not thereby create a lien on her estate in the land for the amount due to the mechanic for such labor or materials, under the Rev. Sts. c. 117» and therefore cannot properly be joined with her husband in a petition, by the mechanic, that the land may be sVld for a breach of such contract: Rut such contract creates a lien on the husband's estate in the land, and if she be joined in such petition, the petitioner may discontinue as to her, and proceed against the husband for a sale of his estate in the land.</p> <p>By a written contract with a mechanic, made by a husband and wife, for the erection of a building on the wife’s land, it was provided that the last payment, of $430, to the mechanic should be made “ upon the entire fulfilment of the contract, ir4 all its parts, on or before the first day of May ” 1844: There was also a provision in the contract, that if any difficulty should arise between the parties, in the construction or execution thereof, it should be submitted to the decision of two housewrights: The building was not completed on the first day of May 1844, but was completed on or before -.the tenth day of June following: A difficulty arose between the parties, as to the construction and execution of the contract, and they submitted the matter, on the twelfth day of June 1844, to two housewrights, who decided, on the fourteenth day of said June, that the husband and wife should pay to the mechanic a balance less than $430; and on the thirteenth day of December 1844, the mechanic filed a petition that the land on which the building was erected might be sold, andrthe proceeds of the sale be applied to the discharge of the balance found due to him by the housewrights. Heldy that the mechanic’s lien on the husband’s estate in-the laud was not dissolved at the time of the filing of the petition, by virtue of 'the provision in Rev. Sts. c. 117, § 3, that “ the lien shall be dissolved at the expiration of six months after the time when the money due by the contract, or -the last instalment thereof, shall become payable, unless a suit for enforcing the lien shall have been commenced within the said six months.”</p> <p>At the time when a husband and wife made a contract with a mechanic to furnish labor and materials for the ^erection of a building on the wife’s land, they had not had a child born alive; but after the mechanic filed a petition that the land might be sold for breach of the contract, pursuant to the Rev. Sts. c. 117, they had a child born alive. Heldy that the mechanic’s lien extended to the husband’s estate in the land as tenant by the curtesy initiate.</p>

This was an action of trespass upon the case : and the declaration alleged that Samuel Carter was seized and possessed of a close, water mill, ancient dam, and the water privileges thereto appertaining, situate on the north branch of Nashua River, in Lancaster, and the right of having the whole water of said stream flow, without obstruction, for the benefit of said mill, and of having the uninterrupted use and occupation of said mill and privileges; and that said Carter,…

<p>This was an appeal, taken by David Boutelle, administrator of the estate of Percy Atherton, deceased, from the decision of commissioners appointed to examine the claims of creditors against said estate, which was duly represented to be insolvent. The trial was before Hubbard, J. who made the following report thereof:</p> <p>The amount of the plaintiffs’ claim was admitted by the administrator, subject to the objections hereinafter stated.</p> <p>It was proved on the trial, that in the year 1832, certain machinery of the value of $10,500 was bought by said Atherton and William Buffum, and the bill of sale taken in the name of Atherton, but agreed to be the joint property of the two. By consent of Buffum, and for the mutual benefit of him and Atherton, the machinery was immediately mortgaged to John Famum, one of the plaintiffs, for $2500, he having advanced that sum in part payment of the purchase money. In 1839, said Buffum sold all his interest in the machinery to said John Farnum. Before that time, viz. in 1835, said Famum assigned the said mortgage to the plaintiffs, who are commission merchants in Philadelphia. At the time of this assignment of the mortgage, the said Buffum and Atherton were using the machinery, in the name of Atherton, in the manufacture of cotton goods at Fitchburg, and so continued till Buffum sold his interest in it, as aforesaid ; and afterwards Atherton continued to carry on said business till his death. The goods manufactured were sold by the plaintiffs, who, from time to time, made advances thereon, keeping an account current with the manufacturers, under the name of “ the Stone Mill.”</p> <p>Soon after the transfer of said mortgage to the plaintiffs, the amount due thereon was charged to “the Stone Mill,” in the account kept by the plaintiffs with that concern, and was never withdrawn from that account. Accounts current were rendered naif yearly, by the plaintiffs, to the manufacturers, during all the subsequent years.</p> <p>Between the time of the charge of the amount, of the mortgage to “ the Stone Mill,” and the time of the sale to Farnum of Buffum’s interest in the machinery, there were credits to “ the Stone Mill,” the aggregate amount of which was $74,000; but the balance, on the rendering of each account, was in favor of the plaintiffs.</p> <p>On the 9th of January 1844, the defendant, as administrator of the estate of Atherton, sold at auction “ all the right, title and interest Percy Atherton had in the machinery in the Stone Mill, and lease of the mill,” which machinery was that m question. Peter Farnum, one of the plaintiffs, was present at the sale, and on being called upon by the defendant to state his claims, he then said he had a good and valid mortgage on the machinery, given in 1833, and that nothing had been paid on it. The defendant (the administrator) then said that he should sell, subject to whatever incumbrance was on it, and that the purchaser must take his risk. It was bid off by said Peter Farnum, at §3500, being the fair value of one half of the machinery, and somewhat more than the sum at which it was appraised.</p> <p>It was shown in evidence, that twenty nine bales of cotton goods, which were sold by the plaintiffs, and for the proceeds of which the sum of §1752-81 was credited in their account, were put into a wagon, by direction of Atherton, the day before his death, to be forwarded to the plaintiffs, and that an invoice of them was made; but that the goods had not left Atherton’s premises at the time of his death, but were forwarded to the plaintiffs, by Atherton’s son, the day after his death.</p> <p>The defendant contended that he was entitled to receive the proceeds of said goods; and it was agreed by the parties, that if such should be the opinion'of the court, the above-sum should be added to the plaintiffs’ claim against said’ Atherton’s estate. It was further agreed by the parties, that: upon the facts above stated, judgment should be rendered for the plaintiffs for such sum as, in the opinion of the court, may be due, and that, on such judgment, the plaintiffs should have-such dividend as should be decreed for the creditors of said’ Atherton.</p>

This was an action of assumpsit. The writ was directed ‘ to the sheriff of the county of Worcester, or his deputy, oi the constable or constables of Hardwick.” The ad damnum was eighty six dollars ; and the writ was served by a constable of the town of Hardwick, who, by the plaintiff’s order, arrested the defendant.

<p>These were actions of assumpsit for money had and received of Jacob Anthony, by the defendants, to the plaintiff’s use. Trial before Dewey, J. whose report thereof was as follows:</p> <p>In'the first of these cases, the plaintitf proposed to show that said Jacol Anthony, who had resided many years at Northampton, in the county of Hampshire, left the Commonwealth in February 1846, and went to Utica in the State of New York, carrying with him a considerable amount of money, and also a large quantity of goods, consisting of boots and shoes; that he left secretly, and with intent to defraud his creditors; that he was, at that time, insolvent, or in contemplation of insolvency; that the defendants, being his creditors, went in pursuit of him, in April 1846, found him at or near said Utica, demanded of him payment of their debt, and that he thereupon paid them $800 in money, in discharge of said debt.</p> <p>The plaintiff offered further to show, that the defendants, when they received said $800, had reasonable cause to believe that said Anthony was insolvent; that on the-8th of April 1846, a creditor of said Anthony applied to a master in chancery, in the county of Hampshire, for a warrant against said Anthony’s estate, under the insolvent laws, and that a warrant was issued accordingly, and the plaintiff legally chosen assignee of said estate.</p> <p>The plaintiff insisted that, upon proof of the foregoing facts, he would be entitled, by virtue of St. 1841, c. 124, <§> 3, to recover of the defendants the money received by them as above stated.</p> <p>The defendants (denying that said Anthony was in fact insolvent, or that they had reasonable cause to believe him to be so, when they received said payment,) contended that this action could not be maintained, if the facts offered to be proved were established. “ 1st. Because a payment of money to the defendants, which was received by them in payment of a debt due them, was not a case within that clause of St. 1841. c. 124, <§> 3, authorizing assignees of an insolvent debtor to recover the value of property transferred, or the property transferred, in the hands of a preferred creditor. 2d. Because the receipt of money from an absconding debtor, in the State of New York, by a creditor thus pursuing him, and obtaining the money from him, in payment of a debt, was not a case within the provisions of the statute aforesaid.”</p> <p>The plaintiff offered no evidence with, a view to maintain the action upon St. 1838, c. 163, <§> 10, and did not contend that he was entitled to recover by the provisions of that statute.</p> <p>The judge proposed to rule in favor of the defendants, upon their first ground of defence above stated, and the case was then taken from the jury, by consent, under an agreement that the plaintiff should be nonsuit, if, in the opinion of the whole court, the defence could be sustained upon either ground taken by the defendants, supposing all the facts proved which the plaintiff offered to prove; otherwise, that a new trial should be granted.</p> <p>In the second of these cases, the payment of the money was admitted by the defendants, and under the same circumstances as were alleged by the plaintiff in the preceding case. The only additional fact proposed to be proved in this case was, that the defendants, at the same time when they received the money sought to be recovered in this action, received, by way of purchase, a quantity of boots and shoes, the price of which was allowed by them in payment of a debt due from said Anthony to them.</p> <p>This case also was taken from the jury, under an agreement similar to that above mentioned in the first of these cases.</p>

This was an action of debt, brought to recover the gross damages awarded to the plaintiff, by a jury, against Nahum Howe, on a complaint preferred against said Howe, by the plaintiff, under the Rev. Sts. c. 116, which prescribe proceedings for the support and regulation of mills.

This was a writ of review, brought by the defendant The original action was assumpsit on an account annexed to the writ, and was commenced in the court of common pleas.

<p>If a lessee, to prevent being actually expelled from the demised premises, yields tne possession thereof, and attorns, in good faith, to one who has a title paramount f.o that of the lessee and his lessor, and also a right to immediate possession, this is equivalent to an actual ouster, and is a good defence to an action, brought by the lessor against the lessee, for rent.</p>

This was an action of debt on the following recognizance . “Memorandum. Worcester ss.

Assumpsit on a joint and several note for $175, given to the plaintiff by Nelson Darling, as principal, and Ananias Gifford, as surety, dated March 8th 1841, and payable on the 1st of April 1842. The .action was commenced in the court of common pleas, where Darling was defaulted, and Gifford made defence.

Assumpsit to recover for supplies furnished by the plaintiffs to Lot Simpson, a pauper, whose settlement was alleged to be in Sutton.

This was an action of assumpsit to recover the amount of expenses incurred by the plaintiffs for the support of Warren Murdock, a pauper, whose legal settlement was alleged to be in Uxbridge. The case was submitted to the court upon the following facts agreed: The said Murdock’s legal settlement was in Uxbridge, and he was supported by the plaintiffs as a pauper.

<p>A master in chancery, after reciting that attachments had been laid on the estate of an insolvent debtor, by A. and B., and by certain other persons whose names were to him unknown, passed an order that said attachments should survive, according to the provision of St. 1841, e. 124, § 5; that the assignees should have power to proceed with the suits in which the attachments were made; and that the messenger should give notice to the attorneys in said suits, and to the attaching officers, by serving them with an attested copy of said order: Such service was made on all the attaching officers, and on the attorney of C., an attaching creditor who was not named in the order. Held, that C/s attachment survived, and that the .assignees had authority to proceed with C/s suit against the insolvent debtor.</p> <p>U seems that actual notice to a creditor, of an unrecorded mortgage of the personal property of his debtor, does not debar him from taking such property by attachment or execution: But if any notice will debar him, it must be notice that is full, clear and explicit, so as to designate the specific property bound by the mortgage, by marks and numbers, or other description, capable of identifying it; especially when it is left in the possession of the mortgagor: The notice must express the sum for which the property is bound, and must give substantially the same information as would be given by an inspection of the mortgage deed.</p>

<p>This was an action of trover, brought against the sheriff’ of Worcester for the conversion of sundry articles by Edwin Eaton, one of his deputies. At the trial, in the court of common pleas, before Washburn, J. the plaintiff claimed title to the articles alleged to have been converted, under a mortgage made to him by Benjamin P. Rice, on the 25th of Hay 1843) and recorded on the 16th of December 1845, to secure payment of a note given to the plaintiff by said Rice for $361-67, payable on demand. There was a provision in the mortgage, that Rice might retain possession of the mortgaged articles until condition broken.</p> <p>The plaintiff gave in evidence a writ, dated March 12th 1846, returnable to the court of common pleas at the following June term, in favor of George M. Rice and others against Benjamin P. Rice and Charles Belcher, and the return thereof by said Eaton, stating that he had attached said articles on the day of the date of said writ, and had afterwards sold them upon mesne process, pursuant to the provisions of the Rev. Sts. c. 90.</p> <p>One witness, called by the plaintiff, testified to the identity of the articles mentioned in said mortgage and in Eaton’s return of the attachment on said writ; and another witness testified that the plaintiff, made a demand on Eaton, on the 14th of March 1846, by a writing (a copy of which the witness produced in court) in which he stated, as was admitted by the defendant’s counsel, a just and true account of the debt for which the attached property was liable to him by the mortgage, as required by the Rev. Sts. c. 90, § 79.</p> <p>No other evidence was offered of any demand upon the mortgagor, or upon Eaton, before the commencement of this action.</p> <p>It was admitted that Benjamin P. Rice and Charles Belcher had taken the benefit of the insolvent laws of this Commonwealth; that the first publication, on the petition of Rice, was made on the 25th of February 1846, and on that of Belcher, on the 5th of August 1846 ; and that Rice had received a discharge under said laws, but that Belcher had not.</p> <p>The defendant called said Benjamin P. Rice as a witness; and he testified that a partnership in the baking business was formed between him and said Belcher in December 1844, which was dissolved on the 31st of October 1845; that when said mortgage was made, he was the individual owner of the articles mortgaged by him to the plaintiff; that said articles were put into the partnership by him, and were used and treated as partnership property.; that when the partnership was dissolved, said articles were not left with him to pay the partnership debts, but that he paid Belcher a certain sum per month for the time they had been together, as if they had not been in partnership; and that Belcher left every thing in his (Rice’s) hands, as it was when he (Belcher) came into the partnership; “ that Belcher, when he came into the partnership, put into the concern a note which he held against him (Rice) by purchasing half the property and giving his (Belcher’s) note to him (Rice) for the balance of the half over and above the amount of his (Rice’s) own note, given up; and that when they dissolved, he (Rice) gave up to Belcher the note he had given for the balance of the half of the property.” Said Rice also testified that the debts of the partnership had not all been paid ; that he agreed with Belcher to pay all the debts of the partnership, “ but that nothing was said of the property being left to pay the debts with; that they settled, and that he (Rice) was to have all, as if Belcher had not come into the partnership; and that Belcher gave him no bill of sale of the property, but left it just as it was when he came in.”</p> <p>The defendant then offered in evidence a writing, dated December 21st 1845, purporting to be a conveyance, by said Rice to said Belcher, (including the articles mortgaged to the plaintiff,) of the partnership property, in trust for payment of the debts of the partnership. But the judge ruled that it was incompetent, unless known and permitted by the mortgagee, (the plaintiff,) except for the purpose of impeaching the validity of the original mortgage; and the writing was not read to the jury.</p> <p>The defendant contended that, upon the foregoing evidence, trover could not be maintained. But, it having been admitted that, upon the demand on the officer by the plaintiff, no payment had been made towards said mortgage debt, the judge overruled the objection. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>The owners of several estates, being jointly interested in the water power connected therewith, formed a company, and entered into an agreement, by indenture, in which each covenanted, for himself and his personal representatives or assigns, with the others and their respective personal representatives or assigns, and his and their respective estates, for the faithful performance of the conditions and provisions of said indenture, “ meaning and intending to create a lien upon and to bind ” their “ said estates, so far as ” they might, “ in law or equity, do the same, and ” their “ several heirs, executors, administrators, or assigns, so far as said estates,” &c. were “ concerned, and to the extent thereof, and no further, as fully and absolutely, and as far as ” they might “ do the same, either in law or equity, for the faithful discharge and fulfilment of all the liabilities of said company, and of the requirements and provisions of said indenture: ” C., one of the parties to said indenture, having afterwards incurred expense, pursuant to the provisions of the indenture, for the purpose of increasing the water power, in which all the parties to the indenture were jointly interested, brought a bill in equity against third persons, to whom some of said parties had conveyed their said estates, praying that they might be held to pay him their shares and proportions of said expense, and also praying for general relief. Held, that the indenture could not be so construed as to operate as a legal mortgage; that it could be regarded only as an equitable mortgage ; that if it created any lien, implying a trust, it was a trust sui generis, in the nature of an equitable mortgage, of which the court has no jurisdiction; and that the bill must be dismissed.</p>

<p>A <mt, in which the amount of the plaintifPs damages is wholly omitted, may ne amended, by leave of the court, by filling the blank with the proper sum.</p>

<p>A. granted to B., by deed, a narrow strip of land “ for the purpose of enabling the grantee to erect a mill dam:” By the same deed, A. granted to B. “the right to build, upon the land of the grantor, a mill or factory, somewhere near the northwest corner of S. W.’s land; and also the right to dig a canal or trench from said mill dam to such mill as may be erected; with the right of passing to and from said mill dam and mill, over the grantor’s land: ” B. built a mill dam on said narrow strip of land, and also a mill near the northwest corner of S. W.’s land, but not on the land of A., and dug a canal from said dam, partly through the land of A., to said mill, and, six years afterwards, entered upon A.’s land, through which the canal was dug, to repair and clear out the canal. Held, that said deed gave B. no right to dig a canal through A.’s land in any other place than that designated, namely, from said mill dam to a mill on A.’s land; and that A. might maintain an action of trespass against B. for entering on A.’s land to repair and clear out the canal, even though A. had acquiesced, for six years, in the building of the mill and the digging of the canal.</p>

<p>Writ of entry, to recover one undivided eleventh part of a tract of land in Leicester. The case was submitted to the court upon the following agreed statement of facts:</p> <p>“ Ephraim Copeland died, on the 3d of March 1842, seized of the demanded premises, and of other real estate in Leicester By his last will, made on the 27th .of May 1837, and duly proved and allowed in August 1842; he made the following (among other) bequests : 1 In the first place, I give, bequeath and devise to my wife, Tamesin Copeland, the income and interest of one thousand dollars. In the second place, I give to my daughter, Lucy Tainter, wife of Harvey Tainter, the use and income of one thousand dollars during her natural life. In the fifth place, I give, bequeath and devise in trust, to my executor hereinafter named, a strip of land [described] for the site of a school house, in case I should not erect one in my life time, and access thereto. Also one thousand dollars, at the decease of my said wife, for the following uses forever, to wit, to maintain a school house, and a school to be taught by a female or females, &c. And in order to accomplish said object, said trustee and his heirs shall have reasonable time to bring the same about. In the seventh place, I give, bequeath and devise all the rest, residue and remainder of my estate, real, personal and mixed, to my daughter, and her children born and to be born in lawful wedlock, and my grandson, Ephraim Copeland, in equal shares, subject to ■ the rights and directions given by me to my executor hereinafter named, and to the payment of my just debts. In the eighth place, I hereby nominate and appoint Captain Jonas Tucker of Charlton to be the sole executor of this my last will and testament, and hereby authorize and fully empower him to sell and convey such of my property, as in his judgment will best promote the interest of all concerned, to raise the two thousand dollars for the use of my wife and daughter, and to pay my just debts.’</p> <p>“ The daughter mentioned in said will is the wife of the demandant, who had nine children born of her in lawful wedlock, and living at the time of the testator’s death, and none born since. Lucy K. Tainter, one of said children, died September 16th 1844, leaving the demandant (her father) her heir; whose interest he seeks to recover in the present action.</p> <p>“ On the 4th of April 1842, the said Jonas Tucker declined the office of executor, in these words: 11, the subscriber, having been named as executor, in the last w'll and testament of Ephraim Copeland, late of Leicester in said county, deceased, do hereby decline that trust. Jonas Tucker.’ And in April 1842, Harvey Tainter, the demandant, was appointed special administrator of said Copeland’s estate, and in May 1842, he returned to the probate office an inventory of said testator’s property, in which his real estate, including the demanded premises, was appraised at $7566, and his personal property at $739-17. The amount of other personal estate, not appraised, was $129-50.</p> <p>“In August 1842, Tamesin Copeland, the widow of the testator, waived the provision made for her in his will, and claimed her dower, which was, in November 1842, set out to her, to wit, a third part in value of the testator’s real estate, nut no part of the demanded premises.</p> <p>“ On the 3d of January 1843, Ebenezer Dunbar, a creditor of the estate, petitioned the judge of probate to be appointed administrator, with the will annexed, and, in pursuance thereof, on the first Tuesday of February 1843, administration of said estate was committed to him, with the will annexed In April 1843, he returned to the probate office an inventory of said testator’s property, in which his real estate, including the demanded premises, was appraised at $6566, and his personal property at $65-16. Also good notes at $271-77, and bad notes $71-50.</p> <p>“ By virtue of the authority derived by this appointment of administrator, with the will annexed, and no other, the said Dunbar, after administering the personal property, proceeded to sell, at public auction, all the real estate left by said testator, (including reversion of land set off for his widow’s dower,) for the purpose of raising money to pay the debts and legacies ; and among the deeds executed by him, in his said capacity, is the deed conveying the tract of land, described in the demandant’s writ, to the tenant, who is son in law of said Dunbar; said deed bearing date October 18th 1843. Notice was given of the sale of said real estate, and the same was sold at the times, and in the lots, and to the persons, and for the prices, mentioned in the affidavit of said Dunbar, filed in the probate office.</p> <p>“ The demandant, previously to the sale, recommended how the real estate should be lotted out, in order to sell best, and it was sold in such number of lots as he had recommended.”</p> <p>After G. Parker, for the demandant, had stated' the case, the court expressed a wish to hear the tenant’s counsel first.</p>

<p>The St. of 1783, c. 36, § 17, which prescribed the form of the oath, to be taken by an administrator, executor or guardian, who had obtained a legal order or license to sell real estate, did not, like St. 1817, c. 190, § 11, require that the oath should be taken before fixing on the time of sale.</p> <p>Though an administrator, who obtains license to 'Sell his intestate’s real estate, cannot lawfully be himself the purchaser, either directly or indirectly, and though, if he so becomes the purchaser, the heirs of the intestate may avoid the sale, yet the estate, so sold and purchased, passes to the grantee, by the administrator’s conveyance thereof, subject to be defeated by the heirs; and if it is afterwards sold and conveyed, for a valuable and full consideration, to a bona fide purchaser, who had no notice that it had been bought, at the administrator’s sale, for the administrator’s benefit, such purchaser will hold it against the heirs of the intestate.</p> <p>in a suit by heirs, to recover land of which their ancestor died seized, upon the alleged ground, that the sale thereof by his administrator, under a license, was fraudulent and voidable, the surety of the administrator, on his administration bond and also on the bond given by him on his obtaining license to sell, is a competent witness.</p>

<p>This was a writ of entry, to recover a parcel of the estate which was sold by Silas Blood, sen. administrator of the estate of Silas Blood, jr. as is fully stated in the next preceding case of Blood Sf wife v. Hayman, [ante, 231.) The present case was tried before Shaw, C. J. and the demandants proceeded on the same ground as in the preceding case, namely; first, that the sale made by said Blood, as administrator of the estate of his son, Silas Blood, jr. under a license, was void, because the estate was, in effect, purchased for himself; and secondly, that the sale by him to Johnson was merely colorable.</p> <p>The tenant gave in evidence, and relied on, a deed of warranty from Silas Blood, sen. dated November 3d 1826, conveying to the tenant, in consideration of $2000, the demanded premises, together with about thirty three acres of other land, and witnessed by Edmund Page and Jonathan Woodward, jr.</p> <p>To sustain the first of their grounds of claim, above stated, the demandants introduced evidence; and the tenant introduced counter evidence. The whole evidence on this point was submitted to the jury, with instructions,, to which the demandants did not except.</p> <p>To sustain their second ground of claim, the demandants called Edmund Page as a witness, who testified that he wrote and witnessed the aforesaid deed of November 3d 1826; that said Blood requested him to write it, and said that he was going to give Rideout (the tenant) the farm, or let him have it, as Rideout was about to marry his daughter; that the witness asked Blood what consideration should be inserted in the deed, and Blood said it did not make any great difference whether it was $1500 or $2000, and the witness inserted $2000; that the witness asked Blood who was to pay the mortgage which the Groton Fund had on the farm, and Blood told him to make the deed free and clear of all incumbrances; that “ no money was paid or spoken about at the time; nor any thing of value, except a life lease; ” that when Blood called on the witness to write the deed, he said he wished him to write a deed and a life lease; that the witness afterwards wrote a life lease from the tenant (Rideout) of the same land described in said deed, to said Blood and his wife, and gave it the same date as that of the deed, viz. November 3d 1826.</p> <p>The tenant then introduced (among other evidence) the following note: “ Dunstable, November 28th 1826. For value received, I promise to pay Silas Blood, or order, the sum of seven hundred dollars, within seven years, to be paid one hundred dollars yearly, without interest.</p> <p>Attest: Eben. S. Burge. . David Rideout.”</p> <p>On the back of this note were indorsements of seven yearly payments, according to its tenor.</p> <p>The deposition of said Burge was then introduced, in which he deposed as is hereinafter stated in the opinion of the court.</p> <p>The demandants objected to this testimony, as hearsay, but the judge admitted it to be read to the jury.</p> <p>The demandants, in order to show that there was an agreement between Blood and Rideout, that Rideout should pay Blood the sum of seven hundred dollars, in full satisfaction for said Blood’s life estate in the land thus conveyed, and that said note was given for that purpose only, and not for the purchase of the fee in the reversion, offered to give evidence to show, in connexion with other evidence in the case, the value of the real estate, conveyed by Blood to Rideout, ui 1826, when it was conveyed. The professed object of the proof, thus offered, was that which is hereafter stated in the opinion of the court. The judge refused to admit the evidence.</p> <p>A verdict was returned for the tenant, on the second point m the case, to wit, that the tenant purchased the estate for a valuable consideration, without notice of the supposed franc in the administrator’s sale. New trial to be granted, if eith:er of the foregoing rulings was wrong : otherwise, judgment to be rendered upon the verdict.</p>

<p>Debt on an award. At the trial in the court of common pleas, before Wells, C. J. the plaintiff gave evidence that he and the defendant submitted a matter in dispute between them to the arbitration of two men. This submission was not made before a justice of the peace, under the Rev. Sts. c. 114, but was in the following form: “ We the subscribers, John</p> <p>Vose, jr. and Phineas HoW, do hereby promise and agree to refer to [two persons named] all matters of dispute in reference to a contract or bargain of said How to purchase of said Vose a receipt to make composition for glazed hats, and that we will abide their decision. Phineas How,</p> <p>Haverhill, March 7th 1845. John Vose, jr.”</p> <p>The plaintiff also gave in evidence the award of said arbitrators, the conclusion of which was thus: “ We therefore</p> <p>do determine and award that said Phineas How pay to the said John Vose, jr. the sum of one hundred fourteen dollars and eighty cents, and the costs of this reference, taxed at eighteen dollars and forty two cents.”</p> <p>The defendant contended that the arbitrators had no authority, under the above submission, to award the costs of arbitration. But the judge ruled otherwise, and a verdict was returned for the plaintiff for the full amount of the award, including the costs. The defendant filed exceptions to the judge’s ruling.</p>

<p>Under Si. 1839, c. 117, which established separate terms of the court of common pleas, in the county of Middlesex, for the transaction of civil and criminal business, a complaint, under Rev. Sts. c. 49, by the mother of a bastard child, against the alleged father, must be entered and proceeded with at a term held for the transaction of criminal business.</p>

<p>Debt on a judgment of the police court of Lowell, rendered against the defendant, in favor of the plaintiff, on the 16th of January 1838. Writ dated August 24th 1844. Defence, the statute of limitations.</p> <p>The parties agreed that if the court should be of opinion that the police court of Lowell is such a court .of record, that actions on its judgments are not barred by the lapse of six years from the rendition of such judgments, then the plaintiff should have judgment in this action; otherwise, that judg ment should be rendered for the defendant.</p>

Trespass for an assault, battery and false imprisonment. The defendant pleaded the general issue, and filed a specification of defence, containing the matter hereinafter mentioned.

<p>This was an action on a bond, joint and not several, executed on the 23d of April 1845, by Josiah K. Bennett, as principal, and Sumner Shattuck, the defendant, as surety, conditioned for the performance, by Bennett, of an award of arbitrators, to whom he and the plaintiff had submitted all matters in difference between them. The original writ, in this case, was issued against the defendant and said Bennett; but the officer made return that he could not find said Bennett in his precinct, nor any property of his, and therefore made no service upon him. At the return term, the plaintiff filed a bill of particulars of his claim under said bond; to wit, the non-performance of the award of arbitrators, as mentioned in the condition of the bond. The defendant, after having oyer of the bond, pleaded the general issue, and filed a specification of the matter which he proposed to give in evidence, in avoidance or discharge of the plaintiff’s cause of action. After several continuances, the defendant, by leave of court, (the plaintiff objecting,) filed a further specification of matter of defence, which had happened since the last continuance.</p> <p>At the trial in the court of common pleas, before Wells, C. J. at December term 1846, the execution of the bond, the hearing before arbitrators, their award, and Bennett’s refusal or neglect to perform it, were admitted. The defendant then offered to give evidence of the matter stated in his first specification of defence ; but the plaintiff objected, and the judge excluded the evidence, on the ground that the defendant was precluded from giving such evidence, by his filing of a second specification, and relying on it in his defence.</p> <p>The defendant then gave in evidence, under his second specification of defence, a copy of a writ, dated September 29th 1845, returnable to the court of common pleas to be held at Manchester, in the county of Hillsborough, in the State of New Hampshire, on the fourth Tuesday of October 1845, wherein the said Bennett and Shattuck were jointly impleaded, by the present plaintiff, in an action of debt, founded on the same bond, and for the same cause of action that is embraced in the plaintiff’s bill of particulars in the present case. And it appeared from the officer’s return, indorsed on said writ, that he made service thereof on said Bennett, but that he could not find, in his precinct, either said Shattuck or any of his property. In connexion with said writ and return, the defendant gave in evidence an authenticated copy of the proceedings of said court in New Hampshire, in said action, from which it appeared that said action was duly entered at the return term of said writ, and was continued, from term to term, .until the term of said court held at said Manchester, on the fourth Tuesday of October 1846, (which was since the last continuance of the present action,) when and where the said plaintiff recovered judgment against said Bennett for the sum of $149-05 damages, and $18-57 costs. The defendant’s counsel contended that said judgment, thus recovered, was a bar to a recovery in this action against him. But the court ruled otherwise, and the plaintiff obtained a verdict. The defendant filed exceptions to the judge’s ruling.</p> <p>It was admitted, at the argument, that at the time of the execution of the bond in suit, and at the time of the trial, Bennett was an inhabitant of New Hampshire, and the defendant an inhabitant of this Commonwealth.</p>

This was an action of assumpsit, originally brought by Theodore Ames and Peter H. Coburn, partners, and afterwards prosecuted by the plaintiff, who was appointed assignee of their estate, under the insolvent laws, on a note of hand of the following tenor : “ $300. For value received, we promise to pay French, Tapley &> Co. three hundred, payable in fifteen days from date and grace. Rufus McLellan, Lowell, May 9th 1845.

Assumpsit on the following note: “ Lowell, April 29th 1846. For value received, I promise to pay J. O. Benthall, or order, two hundred and fifty dollars, ten days from date. J. J. Judkins.” On the back of this note, in blank, were the names of the other two defendants, Samuel J. Varney and Artsmas L. Brooks. At the trial in the court of common pleas, before Wells.

Trover for a wagon. At the trial in the court of common pleas, before Washburn, J. there was evidence tending to show that one Orfut, under whom the defendant claimed title to the wagon, bargained the same to Henry Fowler, under whom the plaintiff claimed it, the bargain being that the wagon should be said Henry’s upon his paying a certain price ; that .Orfut sold his interest in the wagon to the defendant, who had knowledge of the aforesaid bargain, and that said Henry sold…

<p>When a sworn attorney of the court enters- his appearance for a party, the party is bound by any admissions made by him, in- writing, though out of court, concerning the facts in the cause, until the appearance is withdrawn, or the party revokes the attorney’s authority, and gives notice of the revocation: Until the appearance is withdrawn, or the authority revoked and the revocation notified, the party cannot give evidence, on the trial of the cause, that the attorney had no authority in fact.</p>

This was an action, commenced April 16th 1845, upon the Rev. Sts. c. 104, to- obtain possession of a store in Charles-town.

This was an action on the Rev. Sts. c. 104, commenced m the police court of Lowell, on the 19th of December 1844, to recover possession of a tenement in Lowell.

<p>Slander. The first count in the plaintiff’s declaration alleged that the defendant, on the 28th day of November 1844, at Lowell, “in the presence and hearing of divers good people of this Commonwealth, did londly and publicly speak, utter and publish the following false, malicious and scandalous words, of and concerning the plaintiff, to wit, 1 she (meaning the plaintiff) is a bad girl; ’ then and thereby meaning and intending that the plaintiff was a prostitute, and had committed the atrocious crime of fornication.” The second, fourth and fifth counts alleged that the defendant, on different days, said of the plaintiff, “she is a very bad girl,” meaning thereby that she was a lewd, lascivious and wanton person, and had committed and was guilty of the crimes of fornication, prostitution, lewdness, &c. &c. The third count alleged that the defendant, on the 29th of November 1844, said of the plaintiff, “ she is a bad girl, and unworthy to be employed by any company in Lowell,” meaning, as is alleged in the other counts. The sixth count alleged that the defendant, at Lowell, on the 2d of December 1844, “ did loudly and publicly, openly and falsely, charge the plaintiff with being guilty of the crimes of fornication, lewdness, lasciviousness and wantonness.”</p> <p>The defendant pleaded the general issue, and the case was tried in the court of common pleas, before Washburn, J. at September term 1846.</p> <p>When the counts were read to the jury, the defendant objected that they were insufficient; the words alleged to be spoken not being actionable, without a further colloquium than is contained in said counts. The judge sustained the objection as to all the counts but the sixth, and the trial, by his direction, proceeded on the sixth count alone.</p> <p>Jotham S. French was called as a witness by the plaintiff, and testified as follows: “ I went to the counting room of the Middlesex Company, to see if there was not some way in which matters could be fixed, so that the plaintiff could be employed. The defendant said he did not know, or did not see, any way it could be fixed; she was a bad girl, a very bad girl. I then turned to Mr. Lawrence, and told him I wished there could be some way fixed, so that she could go to work. I told the defendant, in the first part of the time I was there, that the plaintiff had worked for me, and her reputation stood high then. The defendant said she must have altered very much since, for she was now a very bad girl. I told Mr. Lawrence I was aware of their rules, but I supposed them to apply only to those wilfully vicious. He replied that such was the case. The defendant was then present. I turned to him, and inquired what she had done to render her unfit. . He replied that she was a bad girl, and ought not to be allowed around among other girls; and I think there was included in the statement, ‘ she was unfit to be employed.’ I cannot say whether this expression was before or after he used the words 1 ought not to be around among other girls.’ ”</p> <p>The plaintiff then inquired of the witness, what meaning he understood the defendant to convey by these words. To this inquiry the defendant objected, and the judge ruled, that the witness might testify as to any existing facts or circumstances, to which the defendant referred, if any; but that, as the witness had proposed to give the whole conversation, it was for the jury to determine what was meant by the language, and that it was not competent for the witness to testify as to his understanding of the meaning of the defendant in the words made use of; and that the above inquiry was not in this case competent.</p> <p>There was testimony, on the part of the defendant,' as to what was said at the interview at the counting room, some of which was contradictory to that of the above witness.</p> <p>The jury returned a verdict for the defendant. The plaintiff alleged exceptions to the judge’s ruling as to the sufficiency of the first five counts, and as to the competency of the inquiry last put to the witness.</p>

This was an action of replevin, to recover certain chattels which had been attached by the defendant, a deputy sheriff as the property of Edward H. Ashcroft and Henry B. Odiorne, partners, doing business under the firm of E. H. Ashcroft & Co. in Medford.

<p>This was an action of debt on a bond, bearing date September 22d 1845, in which the defendant acknowledged himself to be bound to the plaintiff in the sum of $500. The condition of the bond was thus: “ Whereas the said Pattee has this day taken a certain bread route, as follows, viz. in the town of Woburn, of the route leading thereto; in the town of Lynn, or the route leading thereto, and in the towns of Somerville, Charlestown, Cambridge, Boston and South Boston ; and the said Greely agrees to quit the said routes, and give the same to the said Pattee for his own benefit: Now therefore, if the said Greely shall in all things well and truly keep and perform the covenants, and agreements and contracts herein stated, and shall not, either himself or through any other person, molest, interfere or interrupt sail Pattee in the enjoyments of said routes, and the customers thereon, and does not sell, or cause to be sold, within said routes, bread of any description; then this bond or obligation shall be void; otherwise, shall remain in full force and virtue.”</p> <p>The defendant pleaded the general issue, and specified, as further ground of defence, (among other things,) that the bond declared on was made on the Lord’s day, between sunrise and sunset of that day; the making thereof not being a work of necessity, charity or mercy.</p> <p>The case was submitted to the court on the following facts agreed: “ The defendant can prove, if it be legally competent for him to do so by parol evidence, that said bond was signed and delivered to the plaintiff, at his house, in the afternoon of the Lord’s day, and before sunset, in October 1845 - that the defendant, at the time, was residing in Charlestown, and went thence to West Cambridge, to execute the bond. Both parties were, at the time, in good health; and there is nothing to show that to execute the bond on that day was a work of necessity, charity or mercy. The plaintiff can prove that said bond was given for the consideration set out in his declaration, if it be legally competent for him to prove the same by parol evidence. After the execution of said bond by the defendant, and before the date of the plaintiff’s writ, the defendant committed a breach of the condition of said bond.”</p>

This was an action of trespass upon the case, brought against Amos Binney and Nathaniel Burpee, to recover damages for injury alleged to be done to the plaintiff’s garden and nursery in Cambridge, by smoke, heat and gas, proceeding from their brick kilns, made and burnt in a brick yard near said garden. The defendants severally pleaded the general issue.

Trespass upon the case to recover damages for an injury sustained by the plaintiff, by reason of defects and incumbrances in and over a public sidewalk on Merrimack Street in Lowell. Trial before Hubbard, J. who made the following report thereof: “ The defendants admitted that said street, including the sidewalk, was at the time of the injury, and for a long time before had. been, a public highway in and through a compact part of Lowell.

This was an action of trespass upon the case, originally brought before a justice of the peace, in March 1846, by an inhabitant of Lunenburg, in the county of Worcester, a town adjoining Townsend, for an alleged injury caused by the obstruction of a highway by snow and ice. The defendants demurred to the plaintiff’s declaration, and the justice overruled the demurrer, and gave judgment for the plaintiff, for five dollars damage, and costs of suit.

Writ of entry. The original count demanded of the tenant “ possession of a certain parcel of land, situated in Woburn ; ” (described by metes and bounds;) “ whereupon the said Blanchard says, that he was seized of the demanded premises, with the appurtenances, in his demesne as of fee, within twenty years last past, and ought now to be in quiet possession thereof; but the said Kimball hath since unjustly entered, disseized him thereof, and still withholds the same.” The…

This was an action of replevin, in which the plaintiff’s damages were alleged, in the writ, to be seventy dollars. The articles replevied were appraised at ¡$26-92, by persons appointed and sworn pursuant to the Rev. Sts. c. 113, § 29.

Trover for a horse. At the trial in the court of common pleas, before Merrick, J. the plaintiff gave evidence that the horse was conveyed to him, by Seth C. Hawes, by a mortgage dated January 11th 1845, (but which was never recorded,) as security for a debt due from said Hawes to him. He also gave evidence tending to show that the defendant, who purchased the horse of said Hawes, after the making of the mortgage, was fully informed thereof, and of its continued existence.

This was an action of assumpsit, brought against Abijah L. Wright and John S. Webber, partners, to recover the balance of an account, due from them to the plaintiffs, for grain and grain bags sold and delivered.

Assumpsit for goods sold and delivered. At the trial in the court of common pleas, before Wells, C. J. the defendant relied on his infancy, in defence, and the plaintiffs admitted that the goods sold by them to him were not necessaries. Both parties admitted that the goods were sold to the defendant on the 17th of December 1845; and the defendant introduced evidence that he was twenty one years old on the 7th of February 1846.

<p>Ad act incorporating a rail road company provided that the capital stock should not exceed two thousand shares; that no assessments should be laid on the shares to a greater amount, in the whole, than one hundred dollars; that the number of shares should be determined, from time to time, by the directors j and that as soon as two hundred and fifty shares should be subscribed, the company should proceed to construct and open the road: C. subscribed for five shares, and the directors, after more than two hundred and fifty shares were subscribed, voted to close the subscription books of the capital stock, and passed no other vote fixing the number of shares: C. paid six assessments on his shares, but neglected to pay the seventh, and the treasurer of the company, pursuant to the Rev. Sts. c. 39, § 63, sold said shares at auction, for a sum insufficient to pay said assessment, and the company thereupon brought an action against C. to recover the deficiency. Held, that the vote of the directors to close the subscription books for shares, on a given day, was in effect a vote fixing the number of shares at the number then subscribed for, as acertained by said books, and lawfully fixed the number for the time being; that C.*s shares were legally liable to assessment; and that he was answerable for the deficiency sued for.</p> <p>When a defendant is sued as a stockholder in a rail road corporation for the sum remaining due on an assessment upon his shares, after they are sold for non-payment of the assessment, it is competent and sufficient, for the purpose of showing him to be such stockholder, and liable for the assessment, to give evidence that he signed a subscription paper for shares, before the corporation was organized, that he attended the meeting of the stockholders for the organization of the corporation, and that he wrote and distributed votes, and himself voted, for directors.</p> <p>A by law of a rail road corporation provided, that in case of a sale of shares for non-payment of assessments, the treasurer should give notice to the'delinquent owner, when his residence was known, of the time and place of sale, by letter seasonably put into the mail. Held, that" this by-law was directory to the treasurer, and not a condition precedent; and that a written notice of the time anV place of sale, signed by the treasurer, and delivered to the owner of the shares or left at his dwelling-house, and received by him as soon as he was entitled to receive it by mail, was sufficient.</p>

<p>This was a proceeding upon a petition for a jury to assess damages sustained by the petitioner by the laying out of the respondents’ rail road over her land in the town of West Cambridge. The petition was presented to the county commissioners in September 1846, and they issued a warrant, directed “ to any deputy sheriff of our county of Middlesex, Samuel Chandler, Esq. sheriff of said county, being interested,” to summon a jury, agreeably to law, to estimate the petitioner’s damages. A deputy sheriff thereupon proceeded to execute the warrant, by causing jurors to be drawn by the proper authorities of Cambridge, Watertown and Somerville, three towns nearest to West Cambridge, and by summoning said jurors to appear, &c.</p> <p>When the jury convened, and before they were empannelled, the respondents objected, “ that no jurors were taken from the town of West Cambridge, being the town in which the land of the petitioner is situate, and not being interested in the question : Also that the jurors were summoned by the officer to whom the warrant was directed, and not by a constable : Also that the jurors, in the cases of this petitioner</p> <p>and of George Pierce, were summoned under two warrants, both applications for a jury having been presented to the county commissioners, and passed upon, at the same time, for the assessment of damages occasioned by the laying out of the same rail road : Also that the officer, with the two</p> <p>warrants, made but one requisition upon each of the towns for jurors.” These objections were overruled, by the officer appointed to preside at the trial, and the jury was empannelled.</p> <p>During the trial, a witness for the petitioner was asked what was given, by the respondents, for land next adjoining the land of the petitioner. Another witness for the petitioner, a farmer who had occasionally bought and sold land, was asked what, in his judgment, was then the value of his own land next adjoining the land of the petitioner. Both of these questions were answered.</p> <p>The jury were distinctly instructed by the presiding officer and the rule was repeatedly stated, in their hearing, that opinions, except of experts, were not evidence ; but that the facts and reasons, on which any opinion or judgment was founded, were the evidence on which the opinion of the jury must be formed.</p> <p>Exceptions were duly taken to the proceedings aforesaid, and were allowed by the presiding officer.</p> <p>The verdict of the jury was returned into the court oí common pleas, and was there ordered to be set aside. The petitioner appealed to this court.</p>

Bill in eq,uitt. The plaintiffs alleged, in the bill, that Micah Stone of Framingham made his last will on the 26th of August 1813, which was proved and allowed on the 13th of October following, and in which, after various devises and bequests, was the following clause : . “ I give and bequeath to the town of Framingham all the remainder of my estate, of what name or nature soever, under the following regulations and restrictions ; viz. the annual interest to be applied,…

This was an action of debt on a judgment recovered against the principal defendant; and the city of Lowell were summoned as his trustees.

<p>These were writs of entry, brought in May 1844. In the first, the demandants sought to recover a piece of land in East Cambridge, containing 8420 square feet; and in the second an adjoining piece of land, (with the buildings and appurtenances,) containing 11,580 square feet; both forming a part of lot No. 118 on a plan of lands at East Cambridge, made by Stephen P. Fuller, and recorded in the registry of deeds in Middlesex county, Book 243, folio 544.</p> <p>At the return term, the demandants, by order of the court, filed a specification of the grounds of their claim, in both actions, in the words following: “ The demandants in these suits seek to recover the demanded premises, on the ground of an alleged breach of the conditions in the deed (dated January 14th 1823) by which the demandants conveyed the premises to Amos Binney and others; said deed being recorded in Book 246, page 184. Breaches relied on by the demandants are the following : 1. That the parsonage house, school house and meeting-house, mentioned in said deed, were not erected and finished within the time limited by the deed. 2. That the parsonage house was not erected on the land granted by the demandants, as required by the deed. 3. That there has been erected, on the demanded premises, a dwellingnouse, other than the parsonage, and not authorized by, but in breach of, the condition of said deed. 4. That the basement story under said meeting-house has been appropriated, by the tenants, for a tailor’s shop, provision store. <fco. 5. That the tenants, on or about January 1st 1828, leased to the Trustees of the Wesleyan Academy a part of the lands conveyed by the demandants, by their deed aforesaid, (the part on which the school house and a dwelling-house stand,) for the term of 999 years, at a nominal rent, and have ever since the date of said lease, permitted said lessees to have possession of, and to appropriate, the demised premises and the rents and income thereof to uses and purposes other than the support of the public worship of God, as specified in said deed. 6. That the tenants have heretofore conveyed a part of said premises, with the parsonage house thereon, in fee and in mortgage, to Amos Binney, now of Boston, to secure the payment of $1200. 7. That said lessees have heretofore conveyed that part of the premies, leased to them in fee and in mortgage, to John Emory, Esq. of New York, to secure the payment of $2500.”</p> <p>By a like order of the court, the tenants, in both actions, filed specifications of the grounds of their defence. The specification of the Trustees of the Methodist Religious Society, tenants in the first action, was as follows: “ The tenants in this action will require the demandants to make out their title fully and affirmatively, and will set up in defence all such matters and things as, at common law or by statute, may be given in evidence under the general issue, and will rely, in particular, upon the following matters of defence: 1. That there has been a complete and full performance of all the conditions of the grant to Amos Binney and others, by the demandants. 2. That there have been no acts done, amounting to a breach or violation of any condition of the said grant, as alleged by the demandants. 3. That the time for the performance of the conditions of the said grant, as by the terms thereof limited, was extended by the demandants, and the said conditions performed, either within said time or the time originally limited. 4. That the demandants have accepted the acts and doings of the grantees, and those claiming under them, as a full and satisfactory performance of the conditions of said grant, and have exonerated and discharged them therefrom, and from any further performance thereof. 5. That the conditions, in said deed limited, were not the conditions of the grant, as declared and limited by the votes of the demand-ants, (granting the demanded premises, as prayed for by the petition of Atherton H. Stevens and others,) and upon which said grant was made, and which were directed by the demand-ants to be limited in the deed thereof; but that the same were inserted in said deed without the knowledge or authority, and contrary to the direction, of the demandants, and do not in fact constitute the conditions on which the demanded premises are held or were granted. 6. That the several acts and things alleged by the demandants to have been done, and to be breaches of the said grant, have not been in fact done, or, if done, do not constitute any such breach or breaches as will work a forfeiture of the demanded premises. 7. That neither the demanded premises, nor any part thereof, nor the rents and income thereof, have been appropriated to uses and purposes other than those limited by the terms of said grant, and contemplated by the demandants. 8. That the lease and mortgages, alleged by the demandants to have been made, and the alleged appropriation of the basement story of the meeting-house to a tailor’s shop, provision store, &c. if in fact made and done, were made and done in performance of, and to obtain the means to perform, the conditions of the said grant. 9. That the parsonage house was in fact erected on the premises granted by the demandants, or, if not wholly, so far, at least, as to be a substantial performance of the conditions of the said grant; or, if not, the same has been accepted as a performance, and all objection thereto waived and relinquished by the demandants. 10. That the last condition in said deed is repugnant to the said grant, and to the conditions in said deed previously limited, and to the uses and purposes therein declared.”</p> <p>The specification of the Trustees of the Wesleyan Acad emy, tenants in the second action, was thus: “ The said trustees will insist that this action cannot be maintained against them, because they claim, and ever have claimed, to have nothing in the demanded premises, but only a term for years, by virtue of indentures of lease, dated January 1st 1828, whereby the Trustees of the Methodist Religious Society in Cambridge, then and now tenants of the freehold, conveyed the premises therein described to the said supposed tenants for a term of 999 years, which indentures were made for a full and adequate consideration, paid to said trustees of said religious society, or those under whom they claim, and which was by them applied to the performance of the conditions of the grant of the demanded premises to Amos Bmney and others by the demandants, and to the uses and purposes thereof; the fee and freehold then, ever since, and now, remaining and being in the said Trustees of the Methodist Religious Society in Cambridge. And for a further specification of defence, the said supposed tenants adopt that filed in the case of the Proprietors of the Canal Bridge against the Trustees of the said Methodist Religious Society.”</p> <p>The tenants, in both actions, closed their specifications with a notice that if judgment should be against them, they should claim compensation for all buildings and improvements made or erected by them, or any under whom they claimed, upon the demanded premises, and to have the same ascertained and assessed by the jury, according to the provisions of St. 1807, c. 75, and the Rev. Sts. c. 101.</p> <p>The trial was before Hubbard, J. who made a report thereof as follows: The demandants gave in evidence the following deeds: 1st. Their deed of January 14th 1843, for the alleged consideration of five dollars to Amos Binney and others, mentioned in the specifications of the parties. The habendum of this deed was as follows: “To have and to hold the above granted premises to the said Binney, [and four others named,] their heirs and assigns, to the several use-, and upon the several trusts, and subject to the several conditions, declarations and agreements hereinafter mentioned: To wit, in trust for Atherton H. Stevens, [and twenty eight others named,] their heirs and assigns, together with such other persons as may associate with them, for the purpose of the public worship of God, and the erection, on said premises granted, of a church or meeting-house for said worship; as also a house for a clergyman, and a school house. And this grant hereby made is upon the express condition that the grantees or cestuis que trust, or some of them, shall build and finish, within two years from the ninth day of November ■ast,” (1822,) “ on the lot hereby conveyed, a church or meeting-house for the public worship of God, and shalPalso build and finish, within three years from the said ninth day of November, a suitable dwelling-house for the clergyman, and a school house, all on the lot hereby conveyed. And in case the said church or meeting-house, and parsonage house and school house, shall not be built on said lot, and finished within the respective periods above mentioned, then the land hereby granted, with its appurtenances, is to revert to said Proprietors of the Canal Bridge. And this grant is upon this further condition, that the land hereby conveyed shall be forever hereafter appropriated to the maintenance and support of the public worship of God, as herein before specified, and to no other uses or purposes whatever; otherwise, the same to revert to said corporation of the Canal Bridge, as above mentioned.” The boundaries of the land conveyed by this deed are stated in the opinion of the court.</p> <p>2d. A deed of the same premises, from Amos Binney and others, grantees in the deed last mentioned, to the Trustees of the Methodist Religious Society in Cambridge, dated July 1st 1824, conveying said premises to them, to have and to hold the same, to the same uses, and upon the same trusts and conditions, that were expressed in the deed of January 14th 1823 from the demandants to said Binney and others, except that the church or meeting-house, to be ereqted on the premises, was to be “for the worship of God according to the discipline of the Methodist Episcopal Church in the United States.”</p> <p>3d. A mortgage deed, made to Amos Binney by the Trustees of the Methodist Religious Society aforesaid, dated October 1st 1845, conveying a part of the land described in the two last mentioned deeds, viz. the land on which the parsonage house was built, to secure the payment of §1219-21, in five years, with interest payable semiannually.</p> <p>4th. An indenture of lease for the term of 999 years, from said Trustees of the Methodist Religious Society in Cambridge to the Trustees of the Wesleyan Academy, of the premises demanded in the second of these actions. This lease reserved one dollar per annum, as rent, and was “ upon</p> <p>the express condition, that no building ” should “ be erected on any part of said land, nor any business, trade or occupation transacted or carried on thereupon, or in any building thereupon, which ” should “ in any wise interfere with or interrupt the peaceable and quiet enjoyment of the said church and parsonage house ” contiguous to the demised premises, “ or be in any wise a nuisance to them who ” should “ lawfully occupy and use the same,” &c.</p> <p>5th. A mortgage deed, from said Trustees of the Wesleyan Academy, of the premises described in the indenture of lease to them, above mentioned, to John Emory, acknowledged on the 14th of November 1830, to secure payment of $2500 in four years, with semiannual interest, payable in New York.</p> <p>The demandants abandoned any claim under the first and second breaches of condition alleged in their specification, and proceeded to give evidence of the following facts; some of which were not denied by the tenants: 1. That a brick dwelling-house, two stories high, was erected and finished before November 1st 1826, by the tenants in the first of these actions, on that part of the premises conveyed by the demandants to Amos Binney and others by the deed of January 14th 1823, and which was afterwards leased to the Trustees of the Wesleyan Academy, as above stated : That the house was built at the same time and in connexion with the school house, and forms a part of ‘ the school house block,' so called. 2. That the Trustees of the Wesleyan Academy have, ever since the date of the lease aforesaid to them, had possession of the premises described in said lease and in the demandants’ writ against them, and have received the rents and income thereof, and appropriated the same to the uses and purposes of the academy at Wilbraham: That the school h Duse has always been, and now is, kept up and maintained by said lessees, and rented by them at a low rent, sometimes for a high school, and sometimes for a private and primary school. 3. That the basement under the meeting-house was rented by the tenants in the first of these actions, for the storage of glass and other merchandize, from 1824 to 1842:</p> <p>That during that period, the embankment, on the north side of the meeting-house, came above and covered the rough stone foundation of said house, and sloped off gradually towards the sidewalk in Cambridge Street: That, in 1842, this embankment was removed, to the depth of about four feet, leaving said foundation, towards said street, uncovered ; and windows and doors were inserted in the basement wall, and the basement was partitioned off into three apartments, which were finished; one for a vestry, one for a tailor’s shop and one for a provision store : That the vestry has been ever since occupied, as such, by the said Methodist church and society, and the store and shop have been rented by the trustees of said society, and the rents thereof, and of the basement while rented for the storage of glass, &c. have been applied to the payment of the debts of the society, incurred in erecting the buildings, for repairs and for preaching, and to the support of public worship: That on the 25th of April 1844, the demandants made an actual entry on each of the parcels of land demanded in said actions, for breach of the conditions of their said deed of January 14th 1823, and for the purpose of obtaining seizin and possession thereof, upon the ground of an alleged forfeiture.</p> <p>The tenants then gave in evidence the following acts of the legislature : tit. 1809, c. 85, incorporating a company by tue name of the Lechmere Point Corporation, and tit. 1822, c. 19, in addition thereto ; St. 1823, c. 46, incorporating the Trustees of the Methodist Religious Society in Cambridge, and St. 1823, c. 81, incorporating the Trustees of the Wesleyan Academy : Also the records of said Lechmere Point Corporation, of September 21st and October 31st 1822. From these records it appeared that at a meeting of the directors of said company, on the 21st of September 1822, it was voted “ that Messrs. Binney, Rogers and Terry be a committee to consult and report upon the petition of sundry persons for a lot of land for a meeting-house; ” and that, on the 31st of October following, at a meeting of said directors, it was voted, “ that the petition of sundry persons for land for a meeting-house be referred to the Proprietors of the Cana. Bridge.”</p> <p>The tenants then put into the case a deed of the demanded premises, made by the Lechmere Point Corporation to the demandants, (who were incorporated by Sts. 1806, c. 88, and 1807, c. 61,) dated October 21st 1822: Also the following extracts from the records of the demandants, to wit, first, a report read and accepted at a proprietors’ meeting held on the 9th of November 1822, in these words: “ The committee, to whom was referred the petition of Atherton H. Stevens and others, asking a donation of a lot of land for the erection of a house for public worship and other purposes, have seen the petitioners, and, from a communication with them, learn that they wish to erect a house for the minister and a school Impressed with the utility of such institutions, and considering that the property generally will be enhanced in value, the committee report, that in their opinion it is expedient to grant them a lot of land, one hundred feet square, on the corner of Cambridge and South Third Streets, provided a church shall be erected and finished in the course of two years. And one other lot of one hundred feet square, on the corner of Otis and South Third Streets, provided that a suitable dwelling-house for the clergyman and a school house shall be erected and-finished within three years from the present period. That the land shall be conveyed to trustees appointed by the petitioners, and approved by the directors; and in case of noncompliance with the conditions above named, said lots tore vert to Canal Bridge.” Second, a record of the proceedings at a directors’ meeting, held on the 10th of January 1823, when the trustees, chosen by the petitioners for a lot of land) to receive a conveyance thereof, were approved, and an order passed, that a deed should be made to said trustees, (Amos Binney and others,) and that a stockholders’ meeting should, be called on the 14th of January 1823, to enable the president to sign said deed. Third, a vote, at a proprietors’ meeting held on said 14th of January, “ that the president be authorize! to sign the deed to the trustees mentioned in the vote of the directors, of January 10th instant, of a certain lot of land at Lechmere Point, for the purpose of building a meetinghouse, according to a vote of the proprietors, of November 9th 1822, and the report of the committee and the vote thereon.” Fourth, the following vote passed at a proprietors’ meeting held on the 25th of April 1826: “ On the representation of the directors, that they had granted to Colonel Binney an extension of time, for the purpose of erecting a school house on the lot granted to the Trustees of the Methodist Society at Lechmere Point, for the erection of a meetinghouse and school house, as appears by vote of proprietors January 14th 1823; the meeting-house and dwelling-house being completed: It was voted, that the extension granted by the directors be confirmed, and that the time for the completion of said school house be extended to the first of November next; the said school house to be built of brick.” Fifth, the appointment of a committee, by the directors, on the 24th of October 1826, to ascertain whether the conditions of the deed of January 14th 1823 had been complied with; and a report of said committee (William Payne and Ebenezer Francis) in these words: “ Boston, November 16th 1826. The undersigned, a committee appointed by the directors of Canal Bridge, on the 24th ult., have examined the buildings erected on land granted to Amos Binney and others, trustees, and report: That a meeting-house, parsonage house and school house have been erected on said land, in conformity to the conditions made in said grants; and that the same have been built with brick, in a substantial manner.”</p> <p>The tenants also gave in evidence the records of the Trustees of the Methodist Religious Society in Cambridge, accepting their act of incorporation on the 21st of July 1823; passing by-laws on the 28th of July 1823; accepting, on the 9th of August 1823, the proposal of Amos Binney to build a meeting-house, and choosing a committee to obtain a plan, in conjunction with Binney, and adopt measures for finishing the house; authorizing Binney, on the 27th of May 1824, to lease the cellar under the meeting-house; voting, on the 2d of June 1826, to mortgage the land, granted to Amos Binney and others, to said Binney, or to any person or persons who would advance the funds necessary to erect the buildings required by said grant of the land, and to give a lease of said buildings, as payment of the interest of the money thus advanced ; and also (among other proceedings and votes) a vote, passed on the 28th of August 1834, authorizing the secretary and treasurer to execute a mortgage deed of the parsonage house and lot to the representatives of the estate of Amos Binney (deceased) for the payment of the amount due to said estate.</p> <p>The tenants also gave in evidence a discharge of the mortgage made, as above mentioned, to John Emory.</p> <p>To the admission of all the foregoing documentary evidence the demandants objected; and the tenants thereupon offered to prove all the facts therein set forth and contained, by the testimony of witnesses. Whereupon the demandants admitted the truth of said facts, but denied that said facts were admissible or competent to be proved in this case. And it was thereupon agreed, that all the facts contained in said documentary evidence, so far as legally admissible and competent, and no further, should be taken to be proved in this case.</p> <p>It further appeared, on the part of the tenants, that a brick meeting-house was erected on the lands granted to Amos Binney and others by the demandants, as above stated, in the spring of 1824, and was dedicated on the 21st of July 1824, and has ever since been used, as a meeting-house, by the Methodist Society in Cambridge ; that constant religious worship has been maintained therein; and that said house was constructed over a large cellar or basement, which has been occupied, as before stated.</p> <p>It also appeared, that the parsonage house, mentioned in the aforesaid deed to Amos Binney and others, was erected on part of the demanded premises, prior to April 25th 1825, and has ever since been appropriated by the tenants in the first of these actions for the use of their minister.</p> <p>It further appeared, that the money, to pay for the erection of the several buildings aforesaid, was advanced to the Trustees of the said Methodist Religious Society, by Amos Binney, and that he was settled with by said society, in the manner stated in said society’s records: That no buildings, besides those above mentioned, have been placed on the demanded premises, and that all the buildings now remain on the land, precisely as they were originally made, and as they were on the 16th of November 1826, when visited by the committee of the demandants; except that the cellar or basement of the meeting-house has been finished off into a vestry, &c. as above stated.</p> <p>It was agreed by the parties, at the trial, that the claims of the respective tenants for compensation for buildings and improvements should be postponed, without prejudice to either party, until the court should determine the question of law arising on this report of the facts.</p> <p>The cases were taken from the jury, under an agreement that judgment should be rendered upon nonsuit or default, or that the cases should be put to a jury, as the whole court should direct.</p> <p>These cases were argued at the last October term.</p>

This was an action of debt for rent of a stable, &c. The plaintiff declared on the lease hereinafter mentioned, and added a count on a quantum meruit for use and occupation.

<p>H. made a written agreement with B. to convey certain real estate to B. .within twenty days, and, before the expiration of twenty days, conveyed the estate to A.: B. brought a bill in equity against H. and A. for a specific performance of H.’s agreement, and alleged in the bill, that H. and A. unlawfully combined to defraud him, and that H. fraudulently conveyed the estate to A., without consideration and that A., before H.’s conveyance to him, had been informed, or had reason to believe, that H. had before contracted to convey the estate to B.: A., in his answer, denied that the estate was conveyed to him without consideration, or that there was any unlawful combination between him and H.; but he admitted that, before H. conveyed the estate to him, he had been informed, and that he believed, that H. had made some bargain with B. respecting said estate; but that he had been informed that the bargain had ceased to be binding, and that H., when ho conveyed the *•'- % te to b’m, informed him that he (H.) had good right to sell the same to him, and that he had no reason to believe, and did not believe or suspect, that H. was under any obligation, at the time when he conveyed the estate to him (A) to convey it to B. Held, that this answer put B. to the proof of the facts alleged in the bill; and that upon the answer, it did not appear that A. had such notice of H.’s agreement with B., as would entitle B. to a decree against A. for a conveyance of the estate to B.</p>

Trover for household furniture. Writ dated August 3d 1844. At the trial in the court of common pleas, before Washburn, J. the plaintiff produced a mortgage of the articles described in his writ, made to him by A. T. Bruce, dated December 9th 1843, to secure a note for $109, made by said Bruce to him, hearing the same date, and payable in thirty days.

Assumpsit, on the money counts, to recover twenty five dollars.

The indictment in this case alleged, that the defendant, on the 1st of January 1845, at Charlestown, “near to a publi* street and common highway there, and also near to the dwelling houses of divers citizens there situate and being, did unlawfully erect, build and maintain a certain building, for the purpose of making and manufacturing neat’s-foot oil therein, and did unlawfully and injuriously make and set up, place and maintain, in the said building, divers furnaces,…

Trespass for breaking and entering the plaintiff’s close in Tisbury, in the county of Dukes county, subverting his soil, tearing down his building, and taking and carrying away fifty thousand alewives from his fishery in said close. The defendant pleaded the general issue, and filed the following specifications of defence: 1.

<p>Debt oil a bond, executed on the 28th of February 1846, by Josiah C. Parker, jr. as principal, and the other defendants, as his sureties. The condition of the bond was, that whereas the plaintiff, upon her examination, on oath, before a justice of the peace, had accused said Josiah C. of being the father of a bastard child, of which she was likely to be delivered, and that said justice had ordered him to give sureties for his appearance at the court of common pleas, to be held at Barn-stable, in April 1846, then and there to answer to the said accusation; if said Josiah C. should appear at the said court, and answer to the said accusation, and abide the order of the court thereon, the bond should be void; otherwise, should remain in force.</p> <p>The case was submitted to the court, on the following statement of facts: The plaintiff, on the 25th of February 1846, made complaint in writing, and on oath, to a justice of the peace, alleging that she was with child, and that the child was likely to be bom a bastard, and accusing Josiah C. Parker, jr. of being the father of said child, &c. and praying that said Parker might be apprehended, and held to answer to said complaint and accusation. On the same day, said justice issued a warrant against said Parker, directed to the sheriff of the county of Barnstable, or his deputy, or either of the constables of the town of Barnstable, requiring either of them forthwith to apprehend the said Josiah C. Parker, jr. and to bring him before said justice, or some other justice of the peace in and for said county of Barnstable, to find sureties, as well for his personal appearance at the next court of common pleas, &c. as that he should abide such order or orders as should then and there be taken, in pursuance of a law of the Commonwealth in such case made and provided The recital, which was in the warrant, and which preceded the aforesaid direction to the officer to apprehend said Parker, was in these words: “ Whereas Virginia McCall of Barn-stable in the county of Barnstable, single woman, by her voluntary examination, hath declared that she is with child, and that the said child is likely to be born a bastard, and accuses Josiah C. Parker, jr. of Barnstable in the county ol Barnstable, mariner, of being the father of said child, and hath prayed process against the said Josiah C. Parker, jr.”</p> <p>The record of said justice showed that said Parker was brought before him, on the 28th of February 1846, “ by virtue of a warrant duly issued upon the voluntary examination and accusation of Virginia McCall,” (setting forth the substance of said examination and accusation,) and that, upon the reading of said Virginia’s accusation to said Parker, and upon his being asked by said justice, whether he was guilty or not guilty of the offence charged upon him in the said examination and accusation, he pleaded and said he was not guilty. The said record then concluded as follows: “ But, after a, due investigation and examination, it appears to me that the said Josiah C. Parker, jr. is guilty of the offence aforesaid. It is therefore considered and ordered by me, the said justice, that the said Josiah C. Parker, jr. give bond in the sum of five hundred dollars, with sufficient sureties, for his personal appearance at the next court of common pleas to be held,” &c. in April 1846, “ to answer to such charge, and to abide and perform such order or orders, as shall then and there be made, and to stand committed till he comply with the above order.”</p> <p>The plaintiff’s complaint was entered in the court of common pleas for the county of Barnstable, at April term 1846, when the parties appeared; and it then appearing that the complainant had not been delivered of the child mentioned in her complaint, the case was continued to the ensuing September term of said court, when, for the same reason, the case was again continued to April term 1847. At that term, the said Virginia presented to said court her complaint, alleging therein, by herself, and by her next friend, Charles Lewis, that she was delivered of a bastard child, on the 7th of October 1846 ; that Josiah C. Parker,-jr. of Barnstable was the father of said child, (stating the time and place when and where the child was begotten ;) that on the 25th of February 1846, she made complaint to a justice of the peace, (naming him,) “and desired to institute a prosecution against said Parker, whom she then accused of being the father of said child ; that thereupon the said justice took her accusation and examination in writing, under oath, respecting the person accused, the time and place when and where the complainant was begotten with child, and respecting such other circumstances as the said justice then judged necessary for the discovery of the truth of said accusation :That, said justice issued his warrant, on which said Parker was arrested and carried before said justice, who, after hearing him in his defence, required him to give a bond to the complainant, with sufficient sureties, in the sum of $500, to appear and answer to said complaint, &c. with which requisition the said Parker complied, as by the record thereof and by the bond, in court to be produced, will appear: That the cause founded upon said accusation was entered in court and continued from term to term: That having been put upon the discovery of the truth respecting said accusation, in the time of her travail in the birth of said child, she did thereupon accuse the said Parker of being the father of said child, of which she was then about to be delivered; and that she had continued constant in such accusation. Wherefore she prayed that the said Parker might be held to answer to her complaint and accusation, and be adjudged the father of said child, and stand charged with the maintenance thereof, with the assistance of the mother, in such manner as the court should be pleased tr order.</p> <p>Charles Lewis appeared and was admitted, by the court, ai next friend of said Virginia, (who was then an infant,) tr prosecute said complaint; and thereupon the said Josiah C Parker, jr. withdrew, and, though solemnly called to come into court and answer to said complaint and accusation, did not appear, but made default.</p> <p>The said Josiah C. Parker, jr. at the time of the execution of the bond in suit, was under the age of twenty one years, and this fact was known to. all parties concerned. At the April term of the court of common pleas, in 1846, and at the following September term, an appearance, .by attorney, was entered for said Parker; which appearance was withdrawn at April term 1847. Said Parker was under the age of twenty one years when he was defaulted, as aforesaid, but was more than twenty one years old when the writ in this suit on the bond was served upon him.</p> <p>Upon these facts, it was agreed by the parties, that if this action were maintainable against either or all of the deft ndants, the court should “render such judgment therein as to law and justice shall appertain.”</p>

<p>P. and R. made a written submission to arbitrators of all accounts, claims and q demands which they had against each other, of whatever name or nature; all which claims they agreed to make respectively, each against the other, before the arbitrators, who should consider the same, and whose report should be final: At the time of the submission, there were conflicting claims, between P. and B., respecting certain real estate, and these claims were laid by them before the arbitrators, who awarded, in full of all matters submitted, (among other things,) that B. should convey to P., his heirs and assigns forever, by a deed of warranty, a certain strip of land, and should execute a deed, releasing to P. all B.’s right and estate in a certain passage way, to which land and passage way they had conflicting claims. Held, that the terms of the submission included the parties’ claims concerning real as well as personal property; that the arbitrators were thereby authorized to direct B. to make such deeds; and that P. might maintain a bill in equity to enforce specific performance, by R., of that part of the award.</p>

Assumpsit. The plaintiffs’ declaration alleged that they, as assignees of the Taunton Iron Company, exposed certain real estate for sale, on the 5th of April 1843, and that the same was struck off to the defendant, who was the highest bidder therefor, for the sum of $30,300; that they executed; and tendered to the defendant a good and sufficient deed of said estate; that the defendant refused to receive the deed,, and to pay for the estate, according to the terms of the sale…

<p>This was a writ of entry, and the case was submitted to the court upon the following statement of facts:</p> <p>Barnabas Canedy, on the 31st of March 1775, being then seized of the demanded premises, and other lands and tenements, after giving to his wife the use and improvement of all his real estate during her life, devised, among other things, as follows: “ Item. I give, grant and convey unto my brother William Canedy’s son, Noble Canedy, during his natural life, (that is, after the decease of my said wife Elizabeth Canedy,) and at his decease to his eldest male heir, and after his decease and to said male heirs and assigns forever, all and singular, my homestead in Taunton and Middleborough, with all my houses, barns, out-houses and orchards on said lands, and part of a cedar swamp, known by the name of John Thrasher’s cedar swamp, more or less. Likewise all the rights I own in the eleventh lot in Assonet cedar swamp, (provided he, the said Noble Canedy, pay the sums hereafter mentioned,) and one half of my wearing apparel.” The will, in which the above devise was made, was proved and allowed on the 30th of July 1776; and the demanded premises are a part of the said John Thrasher’s cedar swamp.</p> <p>The demandant claims the demanded premises, as eldest male heir of Noble Canedy mentioned in said will, and it is agreed that he was the only male child that survived the said devisee, Noble Canedy. Said devisee went into possession of the estate devised to him, as aforesaid, after the death of said Elizabeth, (who survived the said Barnabas, the testator, and died a few years after his decease,) and continued to hold the demanded premises, until he conveyed the same, aa hereinafter mentioned, and died in the year 1840.</p> <p>Said Noble, the devisee, had seven children, who were all born after the decease of the testator. Two sons, the eldest born and the youngest, died in infancy. Three children survived him, viz. the demandant and two daughters of full age at his decease. Barnabas, the second son, (the demandant being the third,) died in 1815, of full age, but unmarried and without issue. Said Noble, the devisee, also left a grandson and great grandson, the legal representatives of a deceased daughter.</p> <p>On the 25th of May 1810, said Noble, the devisee named in said will, by deed of that date, for a valuable consideration, and bona fide, attested by two credible witnesses, and duly acknowledged and recorded, conveyed the demanded premises to his said son Barnabas, and his son in L ,v James P. Reed; both said grantees being then of full age. On the 15th of October 1810, the said Barnabas and James P., by their deed of that date, for a valuable consideration, and bona fide, and duly attested by two credible witnesses, and duly acknowledged and recorded, conveyed the same to the tenant.</p> <p>It was agreed that if, on these facts, the court should be of opinion that the demandant is entitled to recover the demanded premises, the tenant should be defaulted, and judgment be entered for the demandant; otherwise, that the demandant should become nonsuit.</p>

<p>Assumpsit for the use and occupation of land owned in common by the defendant and the plaintiff, and alleged to have been hired of the plaintiff by the defendant. To prove such hiring, the plaintiff, at the trial in the court of common pleas, before Colby, J. offered to show that the wife of the defendant called upon the plaintiff and agreed with him that the defendant should have the sole occupation of the land, and should pay the plaintiff a certain sum therefor, and that the defendant did afterwards so occupy the land. But the judge ruled that “ evidence of a hiring by the defendant’s wife was not admissible, unless knowledge of such hiring was brought home to the defendant, or authority from him was shown.” A verdict was thereupon taken for the defendant, and the plaintiff alleged exceptions to the said ruling.</p>

Trespass for breaking and entering the plaintiff’s close. At the trial in the court of common pleas, before Colby, J. the plaintiff, to prove his title to the close alleged to have been broken and entered by the defendant, offered, among other evidence, an office copy of a levy of an execution, issued on a judgment recovered by him, upon certain real estate, including the said close.

<p>Trespass for taking, driving away and detaining the plaintiff’s cattle. ' At the trial in the court of common pleas, before Colby, J. it appeared that the plaintiff and defendant resided in Norton, about a mile from each other, and that, on the night of the 21st of August 1845, the plaintiff’s cattle were put into his bam yard, and that the bars of the yard were put up; that. the cattle, very early in the morning of the next day, were in the highway, near the house and adjoining the land of the defendant, and that the defendant impounded them in his field or enclosure, claiming to have taken them for doing damage to bis apple trees, (the limbs of which extended over the highway,) eating his apples, and throwing down his fences. Evidence was submitted to the jury, which tended to show that the cattle, while in the highway, damaged.some of the branches of said trees, and ate the apples thereon.</p> <p>The plaintiff requested the court to instruct the jury, that the defendant, not being a field driver, had no right to take up and impound the cattle, being upon the highway, although they, while in the highway, damaged his trees which overhung it. But the court instructed the jury, that if the cattle, while in the highway, did any damage, however slight, to the plaintiff’s trees, he might lawfully impound them as taken doing damage on his premises.</p> <p>It also appeared that within an hour or two after the cattle were thus impounded by the defendant, in his close, the plaintiff came in pursuit of them, and learned that they were thus impounded; and that there was then a conversation between the plaintiff and defendant concerning the cattle ; and that the cattle remained in the defendant’s custody, where they were first impounded, until four or five o’clock in the afternoon of the same day, when the defendant drove them towards the town pound in Norton, which was four miles from the residence of both parties and from the place where the cattle were first impounded, and there delivered them to the pound keeper, (who was also a field driver,) as cattle taken by the plaintiff doing him damage.</p> <p>The pound keeper testified that he received the cattle in the highway near the pound, in his capacity of field driver, and then impounded them, and proceeded to give the notice required to be given by a field driver ; and that he kept the cattle impounded in the town pound for several days, but finally delivered them to the plaintiff.</p> <p>It did not appear that the defendant left with the pound keeper any memorandum in writing, stating the cause of impounding or the damages claimed. The pound keeper testified that when the defendant delivered the cattle to him, he wrote a paper and left it with him, and took it away on the next day. But there was no evidence as to the "contents of said paper.</p> <p>The court instructed the jury, that if the plaintiff’s cattle were in the highway, doing any damage to the defendant’s trees which overhung it, and he impounded them in his enclosure in the morning, the plaintiff knowing that they were there impounded, and if, in the afternoon, the defendant drove them to the town pound, a distance of four miles, it not appearing whether there was any other town pound in Norton, and there delivered them to the field driver, as cattle taken doing him damage, he had a right to do so, and was not bound to do any further act, unless he claimed damages ; and that, if he waived his damages, or claimed none, when the cattle were delivered to the field driver, he was not bound to leave any memorandum in writing, or to cause notice to be given to the plaintiff.</p> <p>The jury found a verdict for the defendant, and the plain tiff alleged exceptions to the aforesaid instructions.</p>

Scire facias against the bail taken by Elias A. Morse, a deputy sheriff, in an action brought by the plaintiff against Warren Billings. At the trial before Hubbard, J. the plaintiff, to prove the execution of the bail bond by Billings, the principal, offered the said Morse as a witness.

This was a writ of entry to foreclose a mortgage of land and buildings in Taunto.n. The action was commenced in the court of common pleas, and was submitted to that court upon the following statement of facts : The mortgage deed declared on, dated December 8th 1840, was duly executed and acknowledged by Dan Wilmarth, and the condition thereof was broken before this action was instituted. The demanded premises are a part of the property conveyed to the demandants by said deed.

<p>JT., holding a note against W., who died solvent, and of whose estate his son G. was administrator, demanded payment of the note from G-., and threatened to put it in suit, if it were not paid: A sale of W/s real estate was necessary, in order to pay his debts, and a sale thereof, when this demand was made, would have been at a sacrifice: S., the widow of W., for the sake of preventing such sacrifice, guarantied payment of the note, and received from G. a deed of his share of W/s real estate; and J". forbore to sue on the note, but did not give S. notice that G. had not paid it: After a suit against G., as administrator, was barred by the statute of limitations, (Rev. Sts. e. 66, § 3,) J. sued S. on her guaranty. Held, that the guaranty was an a sufficient consideration, and that the omission to give S. notice of non-payment by G. furnished no defence to the suit, as she was not prejudiced by such omission</p>

<p>After a suit against an administrator, who was also one of the heirs of his intestate, who died solvent, was barred by the statute of limitations, (Rev. Sts. c. 66, 5 3,) the administrator, by consent and agreement of the intestate’s widow, made a note, payable to her or order, for a debt due from the estate to W., and she indorsed it to W. Held, in a suit by W. against the widow, on this note, that it was given on a good and sufficient consideration.</p> <p>The following notice, seasonably given, was held sufficient to bind the indorser of note, which was made payable at a bank: “ April 20 1846. Mrs. S. L. Wilmarth Please to take notice that a note, signed by George L. Wilmarth, for three thousand dollars, indorsed by you, is due this day, and by me protested for non-payment. You are requested to pay the same to the holder. B. P. Notary Public.”</p> <p>In an action against the indorser of a note, the maker, if released by the indorser, is a competent witness for him.</p>

<p>This was an action of trespass upon the case, in which the plaintiff’s declaration alleged that the defendants, on the 15th of September 1844, and on divers other days afterwards, took up and removed a drain or sewer leading from the plaintiff’s cellar, under Main Street in Fall River, to and through the defendants’ close, and erected the foundation of a building across the place where said drain or sewer ran, and placed earth and rubbish there, so as to prevent water from running off from the plaintiff’s cellar, and changed the position of parts of a ceitain dam, waste-way and floom, and so placed earth, stones, timber, planks, boards and other materials, as to cause the water of a certain mill pond to flow, through said drain or sewer, into the plaintiff’s cellar.</p> <p>The trial was before Hubbard, J. and all the testimony in the case was reported. So much of it as is necessary to an understanding of the points decided by the court is contained in the following statement:</p> <p>The plaintiff was the owner of a store standing in the northeast corner made by the intersection of Main Street by Bedford Street, in Fall River. The defendants were the owners of a mill dam, of which Main Street formed a part, flowing water on the eastern side of that street. By reason of the defective structure of this dam, the waters percolated, in considerable quantities, through its foundation.</p> <p>It was in evidence that, after the town had widened Main Street, the defendants, in the spring of 1844, erected a block of stores and tenements upon their close, on the westerly side of that street, and so laid the foundation of said block upon the line of that side of said street, and so prepared the ground of said street, in front of said block, as to make a tight dam for their mill pond, and permanently to prevent the flowing of water from any drains which had conducted water from Bedford Street, across Main Street, upon their close.</p> <p>There was evidence tending to prove that there was an ancient town drain running, from a point a few feet in front of the plaintiff’s store, southward across Bedford Street, and thence continuing southwesterly across Main Street, to the defendants’ close, through which the water from those streets ran off; and that about 20 years before the commencement of this action, a drain, from the cellar of the plaintiff’s store, was made into that drain.</p> <p>It was also in evidence that the part of the town drain, which crosses Main Street, was found, in 1830, to be filled up, and that another town drain was then made instead, and was made wider and deeper than the former one, and was varied from it, in its course and in its termination: That in 1843, the plaintiff made his cellar from 10 to 12 inches deeper than it was before, and at the same time increased the depth of the drain from it to the town drain ; and that, but for these changes in the depth of his cellar and drain, the water from the pond of the defendants would not have flowed into his cellar.</p> <p>The defendants contended, that there was not evidence to show the existence of any one drain, passing across Main Street, for the period of twenty years, with which the plaintiff ’s drain had been connected. And the jury were instructed that, in order to find for the plaintiff, they must be satisfied that there had been one and the same drain across Main Street uninterruptedly for twenty years before this action was brought, and that the plaintiff’s drain was connected with that drain; that if there was a drain, before the town drain that was made in 1830, yet if the latter drain was made wider and deeper than the former, breaking it up, or essentially varying its termination upon the defendants’ land, then it was not, in legal effect, the same drain ; and that there must be a constant, unbroken use of substantially the same drain, by the town or individuals, for twenty years, in order to give a right by adverse enjoyment.</p> <p>The defendants also contended, that if the water flowed into the plaintiff’s cellar, by means of his deepening the cellar and the drain in the street between the cellar and the town drain in Bedford Street, in 1843, without license of the town, the plaintiff was not entitled to recover, and that any right which the plaintiff might have to enter his drain into the town drain, and to pass the water from his cellar through said drain upon the defendants’ land, was terminated by the act of the town in building a new drain and abandoning the old drain ; and also, that if the water from the plaintiff’s cellar was let into a town drain, and through that upon the defendants’ land, without the defendants’ knowledge, then no adverse right was acquired. But the judge, for the purposes of the trial, instructed the jury, that if the town drain under Bedford and Main Streets had existed, essentially in the same place and state, for twenty years before the plaintiff’s action was commenced, the town had acquired a right to have their drain empty itself upon the defendants’ land, and that the plaintiff had a right to enter the drain from his cellar into the town drain, and to have the water run through it upon the land of the defendants, although the plaintiff’s drain had not existed twenty years. And the jury were also instructed, that if the flowing of the water into the plaintiff’s cellar was caused by the removal of the bulk head or dam westward of its former position, or by the filling or building of the street, and these were done by the town, or the agents of the town, then the defendants were not liable.</p> <p>The defendants furthermore contended, that as it appeared that if any thing had been done by the defendants to cause the water to flow into the plaintiff’s cellar, it was by a mill dam erected, continued and maintained for the purpose of raising water for the working of a water mill, the remedy of the plaintiff, if any, must be sought under the provisions concerning flowing, contained in the Rev. Sts. c. 116. But the judge, for the purposes of the trial, instructed the jury, that this action was the proper remedy for the plaintiff.</p> <p>A verdict being returned for the plaintiff, the defendants moved for a new trial, because the verdict was against the evidence. Exceptions were also taken to the instructions given to the jury.</p>

<p>In an action brought by the assignees of an insolvent debtor to try the validity of a sale of chattels made by him shortly before proceedings in insolvency were instituted against him, he is a competent witness for the purchaser, to prove that the sale was not made for such purpose, or with such intent and knowledge, as rendered it void against his creditors.</p>

The declaration, in this case, contained the following counts: “ For that the plaintiff was, on the first day of November last past, and unto this day is, seized and possessed of a certain mill, mill dam and water privilege on Furnace or Trout Brook, so called, in Kingston, in the county of Plymouth, and had a right to the use of the water in said brook, for the raising of a head of water, and for the driving of his said mill, without molestation; and the plaintiff avers…

<p>Assumpsit, to recover four dividends declared by the defendants on thirty five shares of their capital stock, standing in the name of the “Trustees of the Ministerial Fund in Wareham.”</p> <p>At the trial before Hubbard, J. the plaintiffs shoAved, by the records of the town of Wareham, that, at the annual town meeting in March 1844, Joshua B. Tobey, Peter Mackie, Jedediah Briggs, John Galt and Osier Howard were chosen trustees of the ministerial fund; and that they were again chosen at the annual town meeting in March 1845. The plaintiffs also read, from said records, a vote of the town, instructing these trustees to collect the interest due on said fund, and appropriate it to pay expenses, and invest the balance in good notes : Also a vote authorizing the trustees to apply to the legislature for a statute confirming an equitable distribution of the income, arising from said funds, among the different religious societies in said town : (It was ad. mitted that no such statute had been passed.) Also a vote passed January 24th 1846, authorizing the trustees to collect the dividends due upon said fund from the Wareham Bank, and to bring a suit for the same, if the bank should refuse to pay : Also a vote authorizing the town treasurer to hire the sum of $420 for paying expenses in collecting said dividends: Also a vote of the town, passed April 25th 1846, that the town trustees collect the interest due on the ministerial fund, and divide it among the several religious societies in the town, in proportion to their population.</p> <p>The plaintiffs gave in evidence certificates of thirty five shares of the stock of Wareham Bank, dated November 10th 1835, signed by the president and cashier, to “ the trustees of the ministerial fund in Wareham.” The cashier of the bank testified that the stock was transferred, by William Fearing, Sylvanus Bourne and Peter Smith, to the then trustees of the fund, and that he delivered the certificates to said Bourne, and that all the dividends on said stock, previously to April 1844, had been paid to said Bourne, who gave his receipt for the same, as chairman of the trustees ; and it appeared that said Bourne, as treasurer of the first parish in Wareham, credited these dividends in the parish books, and paid them to the minister of the parish.</p> <p>The plaintiffs relied on St. 1825, c. 121, authorizing the town of Wareham “to make sale of certain lots of woodland and meadow in said town, originally appropriated for the support of the regular administration of gospel ordinances therein, and to be exclusively devoted to that purpose,” and also directing the town thereafter to elect annually, in March or. April, three or more persons, to be “ trustees of the fund to be raised by the sale aforesaid,” and to invest the proceeds of said sale, and “ annually appropriate the income thereof, according to the original intention of said town, when the lands and meadows aforesaid were laid out and appropriated; ” and that the trustees should “ give bond to said town, for the faithful performance of their duties.” The plaintiffs also claimed interest on a portion of the dividends sued for, by virtue of a paper, dated June 9th 1845, purporting to be a vote of the directors of the bank. And a former cashier of the bank, called as a witness by the plaintiffs, testified that said vote was passed at a meeting of the directors, when a majority were not present; that he did not record it, but that he gave the original paper to the trustees, promising to allow them interest. This testimony and the introduction of the paper were objected to by the defendants, but the objection was overruled.</p> <p>The defendants gave evidence that certain lands and meadows in the town of Wareham, originally laid out to the use of the ministry, had been, until they were sold in 1826, under the aforesaid St. of 1825, c. 121, called, known and occupied as ministerial property, and that the use of them had been appropriated to the support of the congregational minister of said town; that there was only one religious society, to wit, the congregational, in the town, until 1828, and that the town acted under one warrant, in town meetings, in its municipal and parochial capacities, until 1828 ; that in 1826, upon the petition of the town for authority to sell said lands and meadows,- calling them parish property, the legislature passed the aforesaid St. of 1825, c. 121; that in the autumn of 1826, the said lands and meadows were sold, and that the town, in 1827 and 1828, elected trustees, as required by said statute.</p> <p>The defendants then introduced the proceedings in the organization of the first parish in Wareham, in February 1828. And it appeared by the records of said parish, that the parish had chosen trustees of the ministerial fund, in February 1828, and annually afterwards, in March or April; and that, in 1829, Bartlett Murdock, Benjamin Fearing, William Fearing, Isaac Pratt and Eliphalet Bumpus were chosen such trustees: That the parish, on the 5th of October 1829, voted to authorize the treasurer of the town to cancel the bond given, as required by the aforesaid statute, by the trustees; that the securities should be delivered into the hands of the trustees of the parish; and that said trustees should give bond to the treasurer of. the parish. '</p> <p>The following receipt, found among the papers of the present town treasurer, was then given in evidence : “ Ware-ham, June 14th 1830, Received of Peter F. Briggs, treasurer of Wareham, $3611T1, it being the whole amount of the property belonging to the town of Wareham, called the ministerial fund, principal and interest, to 4th December 1829.</p> <p>William Fearing, c Trustees of Eliphalet Bumpus, ) said fund.”</p> <p>The defendants then gave evidence that the interest of said, fund was appropriated to the use of the first parish, by the trustees, who paid it to the parish treasurer; that Sylvanus Bourne was first chosen, by the parish, one of the trustees of the fund, in 1831, and annually afterwards till 1844, and acted in said capacity; that he was treasurer of the parish during most of that time ; that he, in 1835, with the consent of the other trustees, invested the funds in thirty five shares in the stock of Wareham Bank, and that the aforesaid certificate of said stock was then issued and delivered to said Bourne, who held it as trustee, or treasurer of said parish, till 1844, when he delivered it to Joshua B. Tobey, after said Tobey had been chosen one of the trustees of the town : That said Bourne, from the time of the purchase of said stock, received all the dividends declared thereon, and signed the dividend book, as “ chairman of trustees,” or “ chairman,” and, in one instance, in his own name alone ; and that he, as treasurer of the parish, appropriated the dividends, so received, tc the minister of the parish—a small part being applied to parish purposes: That said Bourne was not chosen trustee by the town, and that the town, after 1828, chose no trustees, until 1844, in which year the parish also chose trustees, at their meeting on the 29th of April.</p> <p>It did not appear in evidence, that from the passing of said St. of 1825, c. 121, (on the 3d of March 1826,) till the year 1845, the trustees chosen by the parish ever executed any oond, either to the town or to the parish, for the faithful discharge of their duties.</p> <p>It appeared that in 1844 a written application, signed by twelve persons, was made to a justice of the peace to organize the first parish in Wareham; that said justice issued his warrant, dated March 1st 1844, calling a meeting of the parish on the 9th of said month ; that a meeting was held, on that day, at which no trustees were chosen ; and that this meeting was dissolved, after a vote had been passed designating the manner in which future meetings should be called. The plaintiffs objected, that this was an organization of a new parish, and not of the first parish, and that all subsequent proceedings were the proceedings of such new parish. They also objected, “ that there was not now any congregationa. parish in Wareham, except as involved in the town, which has the power to act parochially; the first organization of the parish having become extinct.” These objections were overruled.</p> <p>The defendants gave in evidence a vote of the parish, passed on the 29th of April 1845, authorizing the trustees, chosen by the parish, “ to demand and receive all the papers and evidence of property belonging to said parish, and to demand and recover the interest on dividends which have accrued on said funds, and to take all legal measures necessary in the premises, and also defend the same.” The defendants also showed, that on the 5th of January 1846, they paid $420 — the full amount of dividends then due — to said trustees chosen by the parish, and took from said trustees a bond of indemnity; and that said sum had been applied, by said trustees, to parish purposes.</p> <p>It was admitted that there were several organized parishes in Wareham, and that the officers of each of them had demanded, from the trustees chosen by the town, their portion of the income of the ministerial fund.</p> <p>A nonsuit was entered, subject to the opinion of the whole court. If any of the judge’s rulings were wrong, in any material point, the nonsuit to be taken off, and a new trial had, or the defendants to be defaulted, as the court shall determine.</p>

<p>Under the Rev. Sts. c. 39, § 57» which provide that a party, who is dissatisfied with the estimate, made by county commissioners, of the damages caused by taking; land for a rail road, (< may apply for a jury to assess the damages, either at the same meeting at which such estimate shall be completed and returned, or at the-next regular meeting thereafter,” if a party applies for a jury, at the same meeting at which the estimate is completed and recorded, and a jury is then ordered,, and a warrant therefor issued, he cannot, by merely omitting or refusing to proceed under that order and warrant, entitle himself to a jury on applying therefor? at the next regular meeting of the commissioners.</p>

<p>H., a broker, whose business was to buy and sell fish, as well for himself as for others, was authorized by S. & Co. to buy fish for them, and bargained with F. for a quantity of fish, intending-to buy for S. & Co., but not intimating to F. that he was not buying for himself, and made this written memorandum of the bargain: “ October 21st 1846. F. agrees to sell H. his fare of fish, at $2'50 per quintal, as they lay, or to go on flakes one good day, at $2-62J; and to have the refusal of them until Friday evening, 23d instant: ” H. gave notice to F., before Friday evening, that he would take the fish at #2-62¿, they to be put on flakes one good day: F. refused to deliver the fish to H., and S. & Co. brought an action against F. for breach of the bargain. Held, that the case was within the statute of frauds, and that the action could not be maintained.</p>

This was a writ of entry, to recover “ one eighth part of a messuage ” in Scituate, to wit, a saw mill, wheel, wheel floors, saws, right of taking water from the pond adjoining, and other privileges and appurtenances thereto belonging. The tenant pleaded the general issue, (nul disseizin,) and filed a specification of defence, asserting title in himself, and denying title in the demandant.

<p>Under the Rev. Sts. c. 103, a joint tenant or tenant in common, though disseized, may maintain the process of petition for partition, if he has a present right of entry, as he might under the previous statutes.</p> <p>Before the passing of St. 1850, c. 278, a respondent, in the process of petition for partition, had no remedy for the improvements which he or those under whom he claimed might have made on the premises of which partition was sought.</p>

<p>0. and H. settled an account, in which C. had charged H. with large sums, and had also credited him with large payments in cash, leaving a balance against H., and proposed to advance to H. a further sum, and take H.’s note on time, secured by a mortgage, for a certain amount, which included such balance and such further sum, and agreed with H., that if there were overcharges against him, in said settled account, they should be corrected: H. gave his note and mortgage accordingly, and the sum thus advanced by 0. was added to the account, and the note was credited, and the account closed. Held, that upon proof of overcharges against H., in the settled account, he might maintain an action against C. for money had and received, and recover the amount of such overcharges.</p>

This was an action of debt upon an award, and was commenced in the court of common pleas. The plaintiffs were Sewall F. Belknap of Windsor, (Vt.) Eliab Gilmore of Concord, (N. H.) and John A. Carpenter of Dedham in this county, copartners.

The writ, in this case, was dated June 27th 1845, and was returnable at the following September term of the court of common pleas. The plaintiff resides in this county, and the principal defendant in Middlesex. John Kinnin, the only person who was named as trustee, in the writ, was described as of Quincy in this county, and the writ was served on him, by reading it to him, in Quincy.

Petition for a writ of mandamus, commanding the county commissioners of Norfolk to pass an order for a jury to revise the estimate, made by said commissioners, of the damages caused to the petitioner by the taking of his land, &c. by the Stoughton Branch Rail Road Company, or for such other relief to the petitioner as law and equity may require.

Trespass for taking away and converting the plaintiff’s wagon. The action was commenced before a justice of the peace, and went into the court of common pleas by appeal, in that court, the parties submitted the case upon an agreed statement of facts, on which a judgment was rendered, from which an appeal was taken to this court.

<p>A testator made the following devise: I give unto my wife M. and to my youngest son N., her only child, all that part of my real estate (described;) provided always, that if M. shall survive N., and N. die without issue, then I give said lands to M. for her life, and after her decease to my children, S., A., M. and C., and their heirs forever, in equal portions; provided always, that if my son N. shall survive my wife M., I give said lands to said N. and to the heirs of his body, and if he or they die without issue, then I give said lands to my children, S., A., M. and C., and to their heirs forever, in equal portions; provided always, that if my wife M. shall die before me, then I give said lands to my said son N. and to the heirs of his body; provided always, that if my son N. shall die before me, without issue of his body, then I give said lands to my wife M. for her sole use during her life, and after her decease I give the same to my children, S., A., M. and C., and to their heirs forever, in equal portions; provided always, that if my son N. die before me, leaving heirs of his body, then I give said lands to his said heirs, in the same manner, and on the like terms and conditions, as I have now given the same to my son N., either jointly with his mother, or to his own use, as events may prove; my meaning and intention being to give said lands to my said wife and my said son N., for their lives, and to the survivor of them, then to the children of said N-., and in default of issue, then to my children, S., A., M. and C., and to their right heirs forever. If my said son N. should, at any time after my death and the death of his mother, be desirous of disposing of his interest in the lands devised to him in manner as aforesaid, my will is, that he should first offer the same to my eldest son, and if he refuse to purchase the same, then to my next son, and so on in succession ; and if they all refuse to purchase the same, then he is at liberty to sell his interest in the same to whomsoever he may see fit.</p> <p>The testator’s wife M. and his son N. survived him, and N. survived M.: When the testator’s will was made, N. was unmarried; but at the time of the testator’s death, N. was married and had children, who were living at the time when he made the deed hereinafter mentioned: After M.’s death, N. offered the lands, devised as above stated, to the testator’s elder sons, in succession, according to the testator’s will, and they all declined to purchase the same: N. afterwards conveyed said lands to W., in fee simple, by a deed of warranty, in common form, with the usual covenants; and W. brought an action of covenant broken against N. Held, that the will gave N. an estate tail, and that he had authority, by the Rev. Sts. c. 59, § 3, to bar the entail by his deed to W., and that W. could not maintain the action.</p>

<p>The directors of an insolvent manufacturing corporation have authority to convey all the property of the corporation to one of its creditors, upon condition that he shall apply the property to the payment of his claim, and pay over the surplus, if any, to the treasurer of the corporation : And such conveyance is not fraudulent, as against other creditors, by reason of its tendency to give a preference.</p> <p>Unless the by-laws of a manufacturing corporation, or a statute, expressly provide otherwise, the same person may be treasurer and director, and a majority of the directors constitute a quorum, and a majority of the quorum have authority to decide any question upon which they can act.</p> <p>It is not necessary that the president of a manufacturing corporation should be present at a meeting of the directors, in order to authorize them to transact business.</p> <p>When a part only of the directors of a manufacturing corporation attend a directors* meeting, and transact business, it is not necessary to the validity of their transactions that it should appear that the absent directors had notice of the meeting: If the contrary do not appear, the legal presumption is that they had notice.</p> <p>The directors of a manufacturing corporation voted that an assignment of all the property of the corporation should be made to S., one of the stockholders, (who was liable, for a large amount, as indorser for the corporation,) for the payment of his indorsements, and authorized the treasurer to make such an assignment, and sign it as treasurer: The directors, at the same time, voted that a bond should be taken of S., conditioned that the proceeds of the assignment should be applied to the payment of his indorsements, and that the surplus, if any, should be paid over to the treasurer, for the benefit of other creditors: The treasurer made 9 deed of release and quitclaim to S. of all the property, real and personal, of the corporation, and constituted S. the attorney of the corporation, to sue for and recover all money due, and all property belonging, to the corporation: To this deed the treasurer signed his own name, and affixed his own seal, declaring that he acted as treasurer and agent of the corporation, and was duly authorized: S. gave a bond to the corporation, with a condition conformed to the aforesaid vote of the directors, and also gave to the treasurer a power of attorney, authorizing him, in the name of S., to settle all accounts and demands of the corporation against all persons, and to sell and dispose of all the property of the corporation, and receive payment therefor, as S. might himself do: Afterwards, another creditor of the corporation attached part of the personal property assigned to S., as the property of the corporation, and S. brought an action of replevin against the attaching officer. Held, that the personal property of the Silk Company passed to S., by the assignment; that he was entitled to the property attached; and that the question, whether that property, though belonging to S., might lawfully be attached, under the Rev. Sts. 0. 38, § 30, for the debt of the corporation, was not open to the officer.</p>

<p>Writ of entry, brought by the heirs at law of John R. Hollis, to recover lands situate in Braintree and duincy, and which the tenants claim to hold under the last will of said Hollis. The parties submitted the case to the court upon the following statement of facts:</p> <p>John R. Hollis died seized of the demanded premises, m May 1842, leaving a will, dated April 13th 1842, and a codicil thereto, April 25th 1842, which were duly proved and allowed by the judge of probate. The demandants are all the heirs of said Hollis, and have duly entered upon and demanded said premises, which are the same that are referred to by said Hollis, in his devise of “ the improvement of the residue of” his “property, both real and personal, to the South Parish in Braintree.”</p> <p>By St. 1828, c. 84, the tenants were “ incorporated as a religious society and body politic and corporate, by the name of the South Parish in Braintree, with all the powers, privileges and immunities, and subject to all the liabilities of parishes, according to the constitution and laws of this Commonwealth and with the right to “hold and possess by grant, gift, devise or otherwise, real and personal estate, for the purposes of supporting public worship and other parochial charges, not exceeding the net annual income of one thousand dollars,” and with the power “ to choose trustees to manage the same.”</p> <p>The said Hollis, in his will, after directing his just debts to be paid, and giving a specific legacy to his sister, Betsey Hunt, made the following devise: “ I give to my said sister, Betsey Hunt, the improvement, during her natural life, of all my real estate lying and being on the north side of the road, called Plain Street; also the improvement, during her natural life, of the piece of land situated on the south side of the said Plain Street, bounded,” &c. “And at the decease of my said sister, Betsey Hunt, I give the improvement of all the same property, above described, to her son, Nathaniel H. Hunt, during his natural life; and at his decease I give all the same property to his children and grandchildren. In case the said Nathaniel H. Hunt should not leave any child, or grandchild, or grandchildren, I give the improvement of all the said property to the South Parish in said Braintree, now under the pastoral care of the Rev. Lyman Matthews, to be applied foi the benefit of schooling all the children belonging and residing in said parish.”</p> <p>Another clause in said will was as follows: “ I give to John Ruggles Hollis WiIIiams,.son of Chauncey Williams of Weymouth, one hundred dollars, to be paid to him by my executor, when he, the said John R. H. Williams, shall become of age ; and my executor is hereby directed to put the said sum of one hundred dollars at interest, with some responsible security, and the interest thus accruing is to be paid to the said John R. H. Williams, at the said time when he becomes of age; and in case the said John R. H. Williams should die before he comes of age, and leave no issue, then the said sum of one hundred dollars, and the interest on the same, I give to the aforesaid parish, the interest of which to be applied for schooling, as aforesaid.”</p> <p>The last clause in said will was thus: “I give the improvement of the residue of my property, both real and personal, to the said South Parish in Braintree, upon the following conditions and stipulations; viz. the whole of which property to be placed into the hands of three suitable trustees, (in trust for said parish,) chosen annually by said parish, by written ballots, expressly for this purpose; they to manage the same in the following manner; viz. the real estate to be leased out for any length of time not exceeding five years on any lease ; the personal property to be put to interest, secured by mortgage on real estate to double the value, or on security of the town of Braintree, or the security of any incorporated city; the income of both real and personal estate together, with the income of what I have heretofore given, in this will, for schooling, is to be for the benefit of schooling in said parish, as aforesaid. And in regard to the wood standing on said real estate, the improvement of which is for schooling, as aforesaid, I hereby authorize the said parish (if they think proper) to cut and sell, as they may deem necessary, and the avails of the same to be put to interest, as aforesaid, which interest is to be applied for schooling, as aforesaid ; and none of the interest or income, as aforesaid, is to be applied for building, or the repairs of any building whatever; but for the hire of a good teacher or teachers; and none of the principal of the real or personal estate is ever to be diminished, but always kept for the benefit of schooling, as aforesaid.”</p> <p>In the codicil, the testator gave legacies to one of his nephews and to four of his nieces, and added this direction : “The aforesaid bequests, in this my codicil to my last will," I direct to be taken from the property, the income of which I have given to the South Parish in Braintree for certain purposes, as before stated.”</p> <p>All the demandants are named in said will and codicil, as devisees or legatees, and have, more than two years ago, received said devises and legacies.</p> <p>A school was established by said parish (the tenants) in October 1845, and has ever since been in operation ; and the whole income of the property devised to the parish, as aforesaid, has, since that time, been applied to the hire of a teacher in said school. The said school is attended by children of parents who are members of said parish ; and as the children of parents, members of said parish, do not fill up the school, the directors of the school have admitted to the school children of parents not members of said parish, and not inhabitants of Braintree, and children of parents residing out of the State, on payment of tuition fees, which are appropriated to paying such expenses of said school as the income of said Hollis’s property, devised therefor, is insufficient to pay. In said school are taught the learned languages, the various branches of an English education, music, both sacred and secular, as in the public schools in Boston and elsewhere.</p> <p>The whole income of said parish, besides that given by said will, is about $250, and not $300.</p> <p>In addition to the real estate demanded in this action, the tenants have received, under said will, of the executor, $3500-75 in money, and the sum of-for wood, cut off from the demanded premises, and sold; but the whole annual income from the property of said Hollis, both real and personal, devised to the tenants for the purposes expressed in' the will, is not so much as $450.</p> <p>At a legally warned parish meeting, founded on an article in the warrant, sufficient for the purpose, the parish, on the 21st of August 1842, “ voted to accept the legacy bequeathed to the parish, agreeably to the will of Mr. John R. Hollis.” And after passing sundry resolutions, among which it was recited that “this parish are under obligations to take prompt and efficient measures to carry into execution the provisions of said will,” it was “ voted to choose three trustees to receive and manage the fund left by the late Mr. John R. Hollis, deceased, for the purpose of maintaining a school in said parish, agreeably to the directions in his will; ” and “ Isaac Dyer, Apollos Randal and Edward Porter were chosen.” “ Voted that the trustees give bonds to the parish.” “ Voted that the name of the Hollis Institute be given to the school.”</p> <p>A school house was built by proprietors, by voluntary subscription, for said school, and has been used accordingly.</p> <p>Said trustees have been elected annually by the parish, since 1842, and they have kept a record of their doings, showing their management of the fund.</p> <p>On the 2d of April 1844, a board of seven directors was chosen by the parish “ to arrange the school and employ a teacher, and transact any other business legally connected with the formation of the school; ” and said directors have kept a record of their doings.</p>

Writ of error, to reverse a judgment of the court of common pleas, rendered in the county of Essex, at June term 1846. At that term of the court, three indictments were returned against the plaintiff in error. One of them charged him with having in his possession, at Beverly, on the 9th of May 1846, a counterfeit coin, in the similitude of an American half dollar, which he then and there uttered as true, with intent, &c. knowing the same to be false and counterfeit.

Assumpsit for shoes sold and delivered, by a shoe manufacturer in Danvers in this county, to a merchant in Mobile, in the State of Alabama.

Assumpsit on the following memorandum: “ Methuen December the 5th 1846. This is to certify that I have sold to Jeremiah Ryan of Amesbury four building lots, commencing bn the main road, on the west corner of Durant’s land ; first two lots 90 feet front, depth about 114 and 96i; next two lots on the main road, 100 feet front, depth about 92 and 76 feet; all the above lots the same as laid down on the plan.

Trespass for breaking and entering the plaintiff’s dwelling-house in Marblehead. At the trial in the court of common pleas, before Wells, C. J. the plaintiff gave'evidence tending to prove her possession of the house, claiming title, and that the defendant, against her will, introduced certain tenants into the house, and continued them there several months, against her will, and removed her furniture from certain parts of the house claimed by her.

<p>County commissioners laid an aqueduct from a spring, through the lands of several persons, to the county buildings, and thereby diverted the water which before flowed to the works of S.: At or about the time when the aqueduct was laid, a lateral pipe was inserted in it, and water thereby conveyed to said works; but it did not appear by whose order or at whose expense the pipe was thus inserted: The commissioners afterwards caused the pipe to be cut off, and S. was thereby deprived of the use of the water: S. brought an action against the commissioners, alleging, in one count, that they had diverted the water of the spring, and in another count, that they caused the pipe to be cut off: The commissioners, in their defence, gave in evidence a deed, executed after the aqueduct was laid, by S. and others, through whose land it was laid, in which deed they recited that it had been laid with their consent, and acknowledged that they had received full satisfaction for all damages occasioned to their several lands by laying it, and in which they also granted to the county the liberty of entering upon their several lands, for the purpose of repairing, or relaying, or taking up said aqueduct, whenever the county commissioners, or any authorized agents of the county, might deem it necessary; the county to pay to the owners of said lands such damages as should be thereafter occasioned by entering thereon for said purpose. Held, that this deed was a grant to the county of the entire use of the water of the spring; that the whole damages for such use had been received by S.; that if the pipe was inserted in the aqueduct before the deed was executed, the right to continue it was relinquished by the deed; that if the pipe was inserted after the deed was executed, it was either a trespass, or was done in pursuance of a parol license of the commissioners, which was revocable and had been revoked; and that, in either case the commissioners had a right to cut off the pipe.</p>

Assumpsit on a receipt given by the defendant to the plaintiff, for certain goods, and a promise to return them to the plaintiff.

Assumpsit, on an account annexed to the writ, for labor done for the defendant. At the trial in the court of common pleas, before Ward, J. the plaintiff introduced a small memorandum book, containing the charges sued for, all which were upon one leaf of the book, with no intervening charges ; and the whole were written with a pencil.

<p>This was an action of assumpsit, to recover the amount of , the following note: “ Andover, August 1st 1836. The Andover Mechanic Association, for value received, promise to pay to the Trustees of the Free Schools in the South Parish in Andover, or their order, three hundred ninety eight dollars, forty one cents, on demand with interest. John Flint, Treasurer.” On the back of this note were six indorsements of a year’s interest; the last indorsement bearing date October 4th 1842.</p> <p>The parties submitted the case to the court upon the following agreed statement of facts: The plaintiffs were incorporated by St. 1801, c. 9. The Andover Mechanic Association was incorporated by St. 1821, c. 40, “with power,” among other things, “ to make by-laws for the management of said corporation and its funds, and to have all the privileges usually given, by acts of incorporation, to charitable societies.” On the 27th of February 1822, at a meeting of said association, certain by-laws were adopted, which were afterwards printed and distributed, the eleventh article of which was in these words : “ The members of this association pledge themselves, in their individual as well as their collective capacity, to be responsible for all moneys loaned to this association, and for payment of which the treasurer may have given his obligation agreeably to the direction of the directors.”</p> <p>The plaintiffs recovered judgment against said association, on the note which is now sought to he enforced against the defendant, and took out execution on said judgment, which execution was returned wholly unsatisfied, before the commencement of this action. Before this action was commenced, to wit, on the 16th of October 1845, the plaintiffs made a demand on the defendant, as a member of said association., to pay the sum now sought to be recovered. The defendant has been a member of said association from the time of its organization to the present time, and was treasurer thereof from its organization to the 1st of January 1840. The number of the members of said association is about thirty.</p> <p>The plaintiffs offer to prove, (if the proof be admissible,) by one witness, that she was a creditor of said association; that her demand remained unpaid ; that when she lent money to said association, the defendant was treasurer ; that she inquired of him as to the security of said corporation, and that he, in reply, informed her that the individual members of said association were liable for its debts; and that the same statement was made to her by the defendant’s successor in the office of treasurer.</p> <p>The plaintiffs also offer to prove by another creditor of said corporation, that when he made a loan to said corporation, the defendant was treasurer, and that he stated to the witness that he considered the individual members of the corporation liable for its debts, and at the same time furnished the witness with a copy of the said by-laws: That the witness gave said copy to another person, who will testify that he afterwards made a loan to said corporation, being induced by, and under the supposition of, the liability of the members.</p> <p>The plaintiffs also offer to prove, by the testimony of a member of said association, that he and the other members thereof, so far as he knows, considered themselves liable individually for its debts; that he had attended their meetings, at which he had heard the subject spoken of by members ; but that he does not know whether the defendant was present at those meetings.</p> <p>The said association, on the 25th of April 1845, made an assignment for the benefit of its creditors; but the plaintiffs refused to become parties thereto.</p> <p>At the time of the loan of the money sought to be recovered In this action, the defendant was treasurer of the Trustees of the Free Schools in the South Parish in Andover, (the plaintiffs,) as well as treasurer of the said Andover Mechanic Association. He resigned the office of treasurer of the plaintiffs on the 12th of December 1836.</p> <p>If the aforesaid testimony be admissible, the court may draw the same conclusions therefrom which a jury would be bound to draw.</p>

Assumpsit to recover the expenses incurred by the plaintiffs in supporting a pauper whose settlement was alleged to be in the town of Lynn. At the trial in the court of common pleas, before Wells, C. J. the plaintiffs undertook to prove that the pauper gained a setlement in Lynn, under the Rev. Sts. c. 45, § 1, by her husband’s residing there for the space of ten years together, and paying all taxes duly assessed on him for five of those years.

This was an action of debt on a bond, given to the judge of probate, by James B. Sawyer, executor of the last will of Leonard Sawyer, and by the other defendants, as sureties of said James B., cofiditioned as required by the Rev. Sts. c. 63, § 2.