Volume 55 — Massachusetts Reports

This was an indictment on the first section of the forty-seventh chapter of the revised statutes, against the defendant, charging him, on the first day of October, in the year eighteen hundred and forty-six, and on divers other days, between the said first day of October and the first Monday of November following, with being a common seller of wine, brandy, rum, and other spiritous liquors, &c. On the trial, in the municipal court, it was proved that the defendant was the…

The defendant was indicted and tried in the municipal court for the city of Boston, with one Charles Crocker, for stealing half a ton of pig non, of the alleged value of $19-00, the property of William E. Coffin and another. Both defendants being convicted, Doane brought his case to this court, on exceptions taken to the rulings and instructions of the judge of the municipal court.

This action was brought to recover the sum of $44-00, being the value of the one half of a partition fence between lands of the plaintiff and defendants, as ascertained by fence viewers, together with $11-36, the costs of ascertaining the same, under the provisions of the Rev. Sts. c. 19, § 12.

This action was brought to recover the amount due on a promissory note, of which the following is a copy: “$750. — Nantucket, December 4th 1838. Ten years after date, I, Daniel Bunker, as principal, and George Myrick, jr., as surety, for value received, promise to pay tc Peter F. Ewer, or his heirs, the sum of seven hundred and fifty dollars, with interest semiannually. Fifty dollars of the principal to be paid annually until the whole is paid. Daniel Bunker.

This was an action of debt, commenced in the court of common pleas, on a judgment of the court of common pleas for the county of Providence, in the state of Rhode Island, rendered against the defendant and others, on the fourth Monday of November, 1836. On the trial in the court below, before Colby, J., the following facts appeared in evidence.

The plaintiff, some time in April, 1845, purchased, paid for, and received, of the defendant, forty-six half and six quarter boxes of cigars, which, on the 9th of May following, were seized, by the collector of Boston, as forfeited, for having been imported into the United States contrary to law.

The defendant was indicted and tried in the municipal court of the city of Boston, for the offence of cheating by false pretences.

<p>The defendant, who was the editor and one of the publishers of a daily newspaper, called the Daily Chronotype, published in the city of Boston, was indicted, tried, and convicted in the municipal court of the said city, for a libel on one Moses Clark, who, at the time of the publication complained of, was serving as a traverse juror in the court of common pleas then sitting in said city.</p> <p>The indictment was as follows:</p> <p>The jurors, &c., present, that Elizur Wright, of, &c., being a person regardless of the integrity, purity, and impartiality, which the citizens of this commonwealth, when summoned to serve and serving as jurors in any of the courts of this commonwealth for the administration of justice between party and party, ought to possess and sustain, and unlawfully and maliciously devising and intending to traduce, vilify, and bring into contempt and detestation one Moses Clark, of Boston, aforesaid, who was on the day hereinafter mentioned and for divers days previous had been a traverse juror duly summoned, sworn, and empanelled, at said Boston, to serve, and did on the day hereinafter next mentioned and on divers previous days duly attend and serve as such traverse juror in the court of common pleas for the county of Suffolk, which was begun and holden at Boston on the first Tuesday in April, in the year of our Lord eighteen hundred and forty-seven, and was thence continued by adjournment from day to day, and holden on the day hereinafter next mentioned, in which said court, on the seventh day of May instant, the said Moses Clark, with eleven other jurors, composing the first traverse jury, after being sworn and empanelled according to law to try the case, did return a verdict in an action wherein one Michael Tubbs was plaintiff and one Francis Tukey was defendant, in favor of the said Tubbs, for the sum of three hundred and four dollars and fifty-eight cents damages, and also unlawfully and maliciously intending to insinuate and cause it to be believed, that the said Moses Clark, with another of the said traverse 'urors, when considering of the said verdict, in the action aforesaid, instead of deciding therein according to their duty and to the law and the evidence given to them, as the said traverse jurors were sworn and obliged to do by law, unlawfully, scandalously, and corruptly agreed to decide and did decide the amount of damages which they should render in their said veixlict in the action aforesaid by a game of draughts, on the fourteenth day of May, in the year last aforesaid, unlawfully, deliberately, and maliciously did compose, print, and publish in a certain newspaper published in Boston, called the Daily Chronotype, of and concerning the said Moses Clark, and of and concerning his discharge of his said duty as such juror sworn and empanelled as aforesaid, an unlawful and malicious libel; according to the purport and effect, and, in substance, among other things, as follows, that is to say,</p> <p>“It is said that his” (meaning the said Clark’s) “marking against Tukey,” (meaning the defendant in the said action) “from which he” (meaning the said Clark) “declared with emphasis he would not budge, was four hundred and ninety-nine dollars and ninety-nine cents, but he did budge from it for this reason ” (meaning that the said Clark in considering of the said verdict had declared to the other jurors that he would not consent to a verdict for a less sum than four hundred and ninety-nine dollars and ninety-nine cents, but that he after-wards did consent to a less sum for the reason given in the next sentence of the said unlawful and malicious libel).</p> <p>“ He ” (meaning the said Clark) “ agreed afterwards with one other juryman ” (meaning one other of said jurors sworn and empanelled in said case) “ who had marked differently, to stake the decision upon a game of draughts with him ” (meaning the said other juryman) — (meaning that the said Clark unlawfully, scandalously, and corruptly agreed with another of the said traverse jurors sworn and empanelled as aforesaid, who differed from said Clark in opinion as to the proper amount of damages to be rendered in the said verdict, to stake the decision of the amount thereof upon a game of draughts.)</p> <p>“ It was so staked and the game going against Clark he was obliged to concur with a lower marking ” (meaning that the said Clark and another of the said traverse jurors, while considering of their verdict in the said action, played a game of draughts for the unlawful, scandalous, and corrupt purpose of deciding thereby what amount they should return in the said action, and that the said Clark having lost the said game accordingly and unlawfully, scandalously, and corruptly concurred in a verdict so decided).</p> <p>“ After the matter was arranged ” (meaning after the aforesaid unlawful, scandalous, and corrupt agreement charged as aforesaid) “ in a trial which decided nothing, he ” (meaning the said Clark) “ marked down his one cent ” (meaning that the said Clark voted for a verdict of one cent damages in the said action) “ where in the opinion of the community generally we believe the verdict ought to have been ” (meaning that the said Clark originally voted for a verdict in the said action for a sum as damages greatly disproportionate to the justice and merits of the said action and afterwards by an unlawful, scandalous, and corrupt agreement with another juror voted for one cent damages and so trifled and sported with his duty as a juror and was guilty of a misdemeanor), to the great injury, scandal, and disgrace of the said Moses Clark, and against the peace, &c.</p> <p>The defendant moved in arrest of judgment:</p> <p>First, because the publication set forth in the indictment does not contain any libellous or indictable matter;</p> <p>Second, because the publication" does not contain any such libel as is charged in the indictment;</p> <p>Third, because the indictment does not profess to set forth the very words or tenor of the alleged libel, but only the purport, effect, and substance thereof,- and,</p> <p>Fourth, because the indictment is, in other respects, uncertain, informal, and insufficient in law.</p> <p>The presiding judge of the municipal court overruled this motion, and the defendant thereupon brought his case to this court by exceptions.</p> <p>The case was argued, on the part of the defendant, by R. Hildreth, as to the first and second grounds of the motion in arrest, and by II. E. Smith, as to the third.</p> <p>Hildreth. The party alleged to be libelled was at the time serving as a juror, and the publication referred to him as such and not in his private character. The defendant was the publisher of a newspaper. There is nothing, therefore, in the case, which should induce the court to disregard technical objections. The prosecutor was quasi a public man; the defendant was in the performance of a duty to the public ; and, in this country, it is not held to be an aggravation of a libellous publication, that the subject of it is a public character. Newspapers are no longer considered as nuisances; but as a necessary article of life ; the daily bread of the public. Editors are often obliged to act upon slight evidence; to get up their publications with great haste ; and they are surrounded by exciting causes. In the performance of their duty to the public, they are therefore entitled to some indulgence ; and the law ought not to be so strict with reference to their publications, as in regard to those which have no public purpose in view. Prosecutions for libel against editors ought not to be encouraged.</p> <p>1. The publication complained of is not a libel. What is a libel ? It is something published, which tends to blacken or defame a man’s character, and to make him an object of hatred or contempt; and, in order to do this, the publication must contain a serious and substantial charge, and not merely one of a light and frivolous description. There is nothing in this publication, which can by any possibility be deemed libellous, unless it be that part of it, which charges the prosecutor with entering into an agreement with one of his fellows, to decide upon their verdict by a game of chance. But, by the agreement, as stated, the two jurors only undertook to settle the amount of damages, and not the verdict, by means of a game of chance. If it had been the latter, the statement might have been libellous. The jury had agreed upon a verdict for the plaintiff, and the only point then before them was as to the amount of damages. They had to decide. whether they should agree upon the amount, or disagree and be discharged from giving a verdict.</p> <p>2. The publication was not what'it is set forth to be in the indictment. The latter alleges, that the defendant charged the prosecutor with acting corruptly. But the charge itself does not import any thing of a corrupt nature. The conduct of the prosecutor, as stated in the publication, might be improper or even unlawful, but it was not in any sense corrupt. If, then, the indictment allege a charge of corruption, and the publication, as stated, import no such charge, this is a repugnant and defective statement, and a sufficient ground for arresting the judgment.</p> <p>Smith. The third ground of exception is, that the indictment does not profess to set forth the very words or tenor of the alleged libel, but only its purport, effect, and substance. The indictment professes to set out only a part of the libel, namely, the substance of it. The terms employed, — “ according to the purport and effect, and in substance, among other things, as follows, that is to say,” —indicate only that the substance of the libel is set out. The terms “ purport and effect ” do not add to, or mean any thing more than, the word “ substance,” which is used in connection with them. Purport and effect import substance. 1 Chitty C. L. 234; Archbold C. P. 44; Wharton Am. Grim. Law, 83, 84. We contend, 1st, that the indictment should set out the libel in the very words of which it is alleged to be composed ; 2, that it should profess to do so ; and, 3, that it should set out the whole of those words.</p> <p>1. The language of a libel must be set out in the indictment in the very words of the publication. Archbold C. P. 42; Wharton Am. C. L. 83; Zenobio v. Axtell, 6 T. R. 63 (as to the mode of setting out a libel published in a foreign language); State v. Stevens, Wright, (Ohio,) 73; State v. Gustins, 2 Southard, 744; Commonwealth v. Sweeney, 10 S. & R. 173; Wright v. Clements, 3 Barn. & Ald. 503; King v. Beer, 12 Mod. 219; State v. Parker, Il. Chipman, 298; Starkie on Slander, 323.</p> <p>2. The very words must not only be set out, but the indictment must profess to set them out. 1 Starkie on Slander, 323; 1 Chitty C. L. 234; Wharton Am. Grim. L. S3 ; 3 B. & A. 506. For this purpose, certain forms of expression, indicating.that the words are so set out, must be used, as, for example, “of the tenor following,” — “as follows,” — “ containing,” — “ in the words and figures following,” &c.</p> <p>3. These rules ought to be applied with more strictness, where the indictment does not profess to set out the whole of the publication, but only that part of it, which the prosecuting officer considers as libellous. He is doubtless at liberty to select and set out in the indictment those portions which he charges as libellous, without inserting the residue of the publication. But, if, in addition to this, he were allowed to set out only a part, that is to say, the substance, of those portions, the defendant would be under great difficulty in knowing what he was charged with.</p> <p>It is exceedingly clear, from the English authorities, and from cases decided in other states, that the indictment must profess to set out the alleged libellous matter, and must set it out in the very words. It was argued in the municipal court, that the words, “ according to the purport and effect, and, in substance, among other things,” might be rejected as surplus-age, and then the indictment would profess to set out, and would in fact set out the very words. But this would be to make a new indictment. In Wright v. Clements, 3 Barn. & Ald. 503, Abbott, C. J., says, the words “ in substance ” give a different meaning.</p> <p>It seemed to be admitted, on the argument in the court below, that the indictment was bad, according to the English authorities. But it was said, that a practice had become established, in this commonwealth, which was sanctioned by the forms in Davis’s Precedents, 125, 154, to state a libel according to the substance and effect. Mr. Davis refers to East P. C. 975, as his authority; but the rule there laid down, which was with reference to indictments for forgery, is directly the other way. In Commonwealth v. Houghton 8 Mass. 107, Mr. Davis referred to his own practice as authority, but the court disregarded it; and in Moore v. Commonwealth, 6 Met. 243, the authority of one of his precedents was directly set aside.</p> <p>The case of the Commonwealth v. Parmenter, 5 Pick. 279, was a'so relied on as sanctioning the doctrine, contended for on the other side. In this case, the court say, that as the statement of the note alleged to be forged is according to the purport and effect, there is no material variance between promised and promise. But the point now presented was not raised, and that case therefore cannot be considered as decisive of the present.</p> <p>Another point, which was taken in the court below, was, that marks of quotation performed the office of a recital, — upon what authority was not stated; but unless inverted commas perform a higher function than that of a recital, the argument is of no avail.</p> <p>It was argued, also, that the practice in this commonwealth, which had prevailed for a long time, to describe written instruments, according to their purport and effect and in substance, ought not now to be questioned. This argument is answered by the remarks of Chipman, C. J., in the case of State v. Parker, 1 D. Chipman, 298, which was an indictment for uttering and giving in payment a counterfeit bank note; the instrument was not set out in words and figures ; this being objected to, the form was admitted to be bad, according to the common law ; but it was attempted to be sustained on the ground, “ that indictments for forgery had been so drawn in Vermont, for more than thirty years, and that not one had been quashed, or held bad on demurrer for this exception; ” but the court, notwithstanding the long usage, which was admitted to have prevailed, though not universally, sustained the exception, and adjudged the indictment to be bad.</p> <p>In order to sustain this indictment, the court must decide me of two things, namely: either that it is not necessary, in an indictment for a libel, to set out the words, but only the substance ; or that the terms purport and effect import that the very words are set out. If the latter, the court ought also, at the same (ime, to decide that the word tend' in a recital imports that the substance only is given ; otherwise, all distinctions will be confounded.</p> <p>In conclusion, we contend that it is clear, both upon reason and authority, that in an indictment for a libel the very words of the alleged libel must be set out, — that the indictment must profess to set them out, — and that certain technical words, which have acquired a settled meaning, must be used to signify whether the very words are set out, or whether their substance only is contained in the indictment. The contrary practice has not prevailed long enough, or been so extensive, as to have become the common law of this commonwealth.</p>

The defendant, described in the indictment as a physician, was indicted and tried in the municipal court of the city of Boston, for printing, publishing, and distributing, a paper containing obscene language and descriptions, and for receiving and having in his possession, great numbers of similar printed papers, for the purpose of exhibition and circulation, and with the intent to introduce the same into the families of the citizens of said city, contrary to the provisions…

<p>This cause was tried before Shaw, C. J., from whose report thereof, for the consideration of the whole court, the following facts appeared.</p> <p>Charles Wellington, being the owner of an unfinished dwelling-house, in Charlestown, which was under a mortgage for $800, sold and conveyed his interest therein, for $200, to Robert Kellen, who was to pay the sum due on the mortgage.</p> <p>On the 3d of May, 1845, the defendants, by a policy duly executed, insured Kellen against a loss of the premises by fire, in the sum of $1000, for one year. The policy contained a clause, by which it was provided, that the sum insured should be paid “ to the said Kellen, within sixty days after proof of such loss or damage, unless within sixty days after notice of such loss or damage, the said company shall have replaced the said property, lost or damaged, with other of the like kind and quality, at the election of the said company.”</p> <p>The building insured was destroyed by fire, on the 27th or 28th of May, 1845, and due notice of the loss was given to the defendants. Shortly afterwards, ■ Kellen made an order, in writing, indorsed on the policy, directing the defendants to pay the loss under the same to the plaintiff. This arrangement was assented to by the president of the defendants, acting for them, by an indorsement in writing on the policy. The order and assent are as follows:</p> <p>“ May 29, 1845. Pay the loss under the within policy to Joseph A. Tolman. Robert Kellen.</p> <p>Assented to. C. W. Cartwright, Pres.”</p> <p>The plaintiff demanded payment of the loss, at the office of the defendants, who refused to pay the same; but the president said, that he was going to rebuild the house; and the defendants did, accordingly, replace the building destroyed with another of the like kind and quality, and of equal value.</p> <p>The plaintiff brought this action on the policy to recover the amount of the loss.</p> <p>It was contended, on the part of the plaintiff, that the assent of the president (whose authority in this respect was not denied) was a waiver, by the company, of their right to rebuild, and an agreement to pay the loss in money to the plaintiff, sufficient to enable him to maintain this action therefor, in his own name.</p> <p>On the part of the defendants, it was contended, that this assent was not an election to pay the money, or a waiver of their right to rebuild; but that they retained that right under the policy, as well after the assignment as before.</p> <p>The judge ruled: 1. That the indorsement on the policy, and the assent thereto by the. president of the defendants, did not amount to an- election to pay the money and waive the right to rebuild, but was merely an assent to the assignment by the plaintiff; that the defendants had notwithstanding a right to rebuild; and, having rebuilt, that was a satisfaction of the loss.</p> <p>2. That the order indorsed on the policy was not in the nature of a draft for money, and that the assent thereto by the defendants was not an acceptance, upon which an action would lie by the plaintiff against the defendants.</p> <p>3. That the indorsement by the assured was an authority to the plaintiff to settle with the defendants, and their assent thereto was an admission and acknowledgment of that authority ; or it amounted to an assignment of a chose in action, which did not authorize the plaintiff to bring an action in his own name.</p> <p>A nonsuit was thereupon entered, subject to the opinion of the whole court. If the directions were right, judgment was to be entered on the nonsuit for the defendants: otherwise, the defendants were to be defaulted, and the case to be referred to an auditor to determine the amount due, or a new trial was to be had, as the court might order.</p> <p>The cause was argued at a former term by A. B. Merrill, for the plaintiff, and C. A. Welch, for the defendants.</p>

This case was submitted to the court of common pleas, upon an agreed statement of facts, from which the court were to draw such inferences, as, in their opinion, ought to be made by a jury.

<p>Where the declaration alleged, that the defendant, in consideration that the plaintiff would sell and convey to him five dwelling-houses, &c., promised to pay the taxes that were or should be assessed thereon for the current year; and the proof showed, that the payment of the taxes was not the whole consideration of the conveyance: —it was held, that there was no variance.</p> <p>Where the purchaser of real estate promised the seller to pay the taxes thereon for the current year, and, on being notified of the assessment, neglected to pay the same, and the seller thereupon himself paid the taxes; the latter was held to be entitled to recover the amount so paid without a previous demand.</p> <p>A promise by the purchaser of real estate, at the time of the conveyance, to pay the taxes that are or may be assessed thereon, for the current year, is not “ a contract for the sale of lands, &c., or of any interest in or concerning the same,” within the meaning of the Rev. Sts. c. 74, § 1. •£</p> <p>A conveyance of real estate cannot be proved by oral testimony without first giving a sufficient reason for not producing the deed.</p>

This was a bill in equity containing a statement of the following facts. Matthew Bartlett, the plaintiff, and John Townsend, one of the defendants, on the 6th of April, 1844, entered into a partnership, under the name of John Townsend, for the purpose of manufacturing goods at South Berwick, in the state of Maine.

<p>The facts of this case, which was argued by G. Farrar, for the defendant, and by F. W. Sawyer, for the plaintiff, are sufficiently stated in the opinion of the court.</p>

This was an action of assumpsit to recover compensation for services, rendered by the plaintiff as a broker, in selling or aiding to sell certain real estate belonging to the defendant. The decimation contained the common money counts, a bill of particulars, and a special count.

<p>This was a petition for partition, in which the petitioner alleged, that, as one of the devisees under the will of her late husband, Windsor Fay, deceased, she was seized in fee of an undivided third part of all the real estate of which he died seized and possessed, in common with the respondents, who were the other devisees under the will. The respondents pleaded that they were sole seized, and issue was joined on .such plea.</p> <p>The cause was submitted to the court upon an agreed statement of facts, from which it appeared, that the petitioner was the Avidow of Windsor Fay, late of Boston, deceased, Avho died seized of the several parcels of real estate described in the petition ; that Eliza, one of the daughters and devisees of the testator, died February 2d, 1843, leaving one child; that the testator died May 28th, 1844, having made the will alluded to, which was duly proved, approved, and allowed; and that the daughter of Eliza died December 31st, 1844, an infant, unmarried and without issue, leaving her father alive.</p> <p>The material parts of the will, upon the construction of which the questions arose, which were decided in the case, are as follows:</p> <p>1. “I will, order, and direct all my just debts to be paid, as soon after my decease as conveniently may be, hereby recommending to my executors hereinafter named, to sell oif my shipping and other property, abroad and at risk, and all other property not suitable for permanent investment, as soon as it can be done to advantage, and to cause the same to be converted into money or some safe, secure, and permanent investment.</p> <p>2. “ I give to my honored father, John Fay, and mother, Lavina Fay, now residing in Fitzwilliam, New Hampshire, the use, rents, and improvement of all the land, dwelling-house, and farm, which I own in said Fitzwilliam, during their joint lives and the life of the survivor, they to pay the taxes thereon and keep the same in tenantable repair, and I do further will and order, that my said executors shall release them from all liability for prior rents of said place, or any other claims I may hold against them.</p> <p>3. “ I give, devise, and bequeath to my dear wife, Dorcas Fay, the use and improvement of one third of all my real estate, except the farm above referred to, which, after the decease of the survivor, I do hereby give to my two sons William C. Fay and Francis W. Fay, to be equally divided between them, to their heirs and assigns forever. I give also to my said wife Dorcas all the household furniture in my house and family stores therein contained, the said furniture during life, and at her decease to be equally divided among my daughters herein named; I also give my said wife pew No. 56 in the Rev. Mr. Mott’s meeting-house, in Boston; and, wishing6 amply to provide for my said wife, during widowhood, if she shall survive me, I do further give her, so long as she shall remain my widow, the income of one third part of all my personal estate, to be quarterly paid her by my trustees hereinafter named, during life, if she shall so long live my widow, but in case of her second marriage, the said income so made payable as aforesaid is to fall into the residue of my estate, to be paid over and distributed in manner and form as provided in the residuary clause hereinafter set forth, and the foregoing provisions for my said wife, which Í hdv« reason to believe are ample, are to be taken and considered in lieu and bar of all right to dower or thirds or other claim on my estate.</p> <p>4. “ I give to my daughters Lucinda Fay, Eliza Fay, and Helen Maria Fay, the sum of one thousand dollars each, to be paid them on their marriage or arrival at twenty-one years, whichever first may happen.</p> <p>5. “ I give my son Francis W. Fay the sum of four thousand dollars, to be paid him on his arrival at the age of twenty-one years.</p> <p>6. “ The residue and remainder of my estate, real, per-. sonal, and mixed, be the same more or less, or wherever to be found, of which I may die seized or possessed, or entitled so to be, I do give, devise, and bequeath the same to my son William C. Fay, and William A. Hyde, and to the survivor of them, and to his executors and administrators, but in trust to and for the several trusts, uses, and purposes hereinafter expressed and declared, and none other :</p> <p>“ In trust to manage the real and personal estate, and from time to time to receive and collect the rents and income thereof, and after making all needful repairs and deducting all expenses, including insurance, and all other reasonable charges necessarily incident to said trust: then,</p> <p>“ In trust to pay over quarterly to my said wife, Dorcas, the income and interest of one third part of my said personal estate [ex]elusive of the legacies aforesaid, during the term of her widowhood :</p> <p>“ In trust, in the second place, to pay over quarterly the rent, income, and interest of the said residue of my estate, including and embracing that, the use whereof is devised to my wife during widowhood (when the same shall fall in) to my several children, Dorcas C. Smith, wife of Nathaniel P. Smith; Caroline Pond, wife of Sabin Pond; Mary H. Brewer, wife of Nathaniel Brewer; Lydia Ann Robbins, wife of Henry Robbins; Lucinda Fay, Eliza Fay, Helen Maria Fay, William C. Fay, and Francis W. Fay, to be equally divided between them, and in case of the decease of either of my said children, without children or lawful issue, I then will, that the income and interest so given as aforesaid shall, in like manner, be divided among the survivors; but in case my said children die leaving issue, then the capital of such deceased child’s share shall be equally divided among such issue, share and share alike, to their heirs and assigns forever.</p> <p>“ And it is expressly my will and intention, that the said several shares of income and interest growing and arising out of the trust fund or property aforesaid, and made payable to my daughters, through the agency of the trustees, as aforesaid, should be paid to my daughters, upon their own separate order or receipt, to be severally signed by themselves, free from the control or interference of any husband or husbands they now have, or may in future have, and not in any way to be subject to the debts of any such husband or husbands, or to be liable upon any attachment, trustee process, judgment, or execution, and which said shares of income and interest, as aforesaid, and also the said capital, are hereby expressly declared inalienable, and not subject to sale, mortgage, lien, or any other incumbrance whatsoever, by my said daughters, or any husband or husbands they may have..</p> <p>7. “ And I do hereby authorize and empower my said trustees, or the survivor of them, to grant and sell the whole or any part of my estate, real or personal, with full power to execute any deed or deeds effectual in law to pass a complete title thereto, at and for such prices ad they may deem proper; but the avails thereof are to be by them retained and held for the same uses and purposes as the lands or other property would be held by the trusts before created.</p> <p>8. “ I do hereby nominate and appoint my said son William C. Fay, and William A. Hyde, trustees for all the purposes of this will, and executors of this my last will, and testament, hereby revoking all former wills by me heretofore made.”</p>

<p>The rule, established in England, — that residuary devises are to be regarded as specific, on the ground, that a testator can only dispose of the lands owned by him, at the time of making his will,—if it ever was in force here, was abrogated by the Rev. Sts. o. 62, § 3, by which testators are enabled to dispose by will of subsequently acquired real estate.</p> <p>Where the estate of a devisee is taken for the dower of the testator’s widow, the right of such devisee to contribution, under the statute of 1839, o. 96, is the same that it would have been under the Rev. Sts. c. 62, §§ 25, 26, if the estate devised to him had been taken for the payment of the testator’s debts.</p> <p>A residuary devisee, whose estate is taken for the dower of the testator’s widow, is not entitled to contribution from the other devisees, under the statute of 1839, c. 96.</p>

<p>Where the words used in a will, if construed according to their technical force and meaning, would defeat the obvious intention of the testator, such a construction is not to be adopted.</p> <p>Where a testator, by a residuary clause, devised the residue of his real and personal estate “ to the survivors of his brother and sisters,” naming them;—it was held, that this was a devise of an estate in common to all the devisees who should survive the testator, with the right of possession immediately after his decease, and not a devise upon a contingency, to the two out of the three persons named who might survive the third.</p> <p>The effect of a codicil, ratifying, confirming,^and republishing a will, is to give the same force to the will, as if it had been written, executed, and published, at the date of the codicil.</p> <p>Where a will was made before, and a codicil added after, the passing of the revised statutes, it was held, that the will might operate upon after purchased real estate, in the same manner, as ifiat had originally been made at the date of the codicil. Tinder the Rev. Sts. c. 62, § 3 which provide for the passing, by will, of after purchased real estate, “ if sueti shall clearly and manifestly appear, by the will, to have been the intention of the testator,” it is not necessary, that the intention should be manifested by an express declaration; but it is sufficient, if it can be inferred from the several provisions of the will; and the true question seems to be, whether the testator intended to die testate as to all the property which he -might leave, or whether he was content to die intestate as to a part, and to leave it to be distributed according to law.</p> <p>Wherever there is a devise of the whole estate, or of all the residue of the estate, of a testator, — there being both real and personal estate upon which the mil may operate, — an intention to give after acquired real estate may perhaps be justly inferred, unless‘there be some indication of a different intention to be found in the will.</p>

<p>A legacy to one, “ if he shall arrive to the age of twenty-one years, then to be paid over to him by my executor,” is not a contingent but a vested legacy.</p>

This was an action of debt, on the Rev. Sts. c. 35, The declaration contained two counts.

<p>The real estate of a bank, including its banking-house, is liable to taxation in the town where such estate lies.</p>

<p>The facts in this case are sufficiently stated in the opinion of the court, which was delivered by</p>

<p>This was an action of assumpsit, to recover the sum of one hundred and twenty-eight dollars, paid by the plaintiff to the defendants, under protest, and in order to prevent certain pews, belonging to him, in the defendants’ meeting-house, from being sold for the payment of taxes. The writ was dated September 3d, 1842, and contained the common money counts. The cause was tried in the court of common pleas, at the January term, 1843, before Williams, C. J., who, being of opinion on the whole evidence, that the action could not be maintained, directed a nonsuit. The plaintiff thereupon filed exceptions to this order, and to certain rulings of the court, in the course of the trial, excluding evidence offered by him, and admitting evidence against his objections.</p> <p>From the report of the evidence, as contained in the bill of exceptions, the following facts appeared.</p> <p>The legislature, by an act approved January 21st, 1823, incorporated (■§> 1) certain persons named therein, fifty-five in number, together with all others who might associate with them, and their successors, as a religious society, by the name of the Central Universalist Society, in the city of Boston, with all the privileges, powers, and immunities, to which other religious societies in this commonwealth were entitled by law ; and Avith express authority (>§> 2) to purchase, hold, and dispose of any estate, real or personal, for the use of the society, provided the income thereof should not exceed, at any time, the value of four thousand dollars.</p> <p>On the 28th of April, 1823, — the society having been previously organized under the act of incorporation, — a meeting of the corporation was held, at which a committee Avas appointed to appraise the pews in the new meetinghouse belonging to the society in Bulfinch Street, and to assess the same ; to cause the pews to be offered for sale, at a proper time, and to sell them, but not for a price less than the sums at Avhich they Avere severally appraised; and to prepare suitable deeds of the pews to be given to purchasers. The committee proceeded accordingly, and appraised the pews, and fixed the proportions, to be paid by the several proprietors, of all taxes to be levied thereon, for defraying the expenses of the society. In this appraisal, the amount of tax to be assessed upon each peAV Avas not fixed at any regular proportion of the value of each as compared with others ; pews valued at four hundred and twenty dollars being taxed tAventy-four dollars, and pervs valued at one hundred dollars, one hundred and twenty-five dollars, one hundred and forty dollars, one hundred and fifty dollars, one hundred and sixty-five dollars, being all taxed at ten dollars each. The pews were subsequently advertised for sale ; and, on the 12th of May, 1823, were put up and sold at auction, under the direction of the committee, and deeds thereof prepared by the committee were given to the purchasers.</p> <p>The deeds were signed by the treasurer, by order and in behalf of the society, attested by the signature of the clerk, and were in the following form :</p> <p>Know all men by these presents: That for and in consideration of four inched and twenty dollars, paid by S. C., of Boston, in the county of Suffolk, to the Central Universalist Society in Boston, for pew No. 66, in the Central Universalist Meeting-house, in Boston aforesaid, said C. is hereby declared and acknowledged to be the sole, true, lawful, and legal owner of said pew No. 66, which pew is to remain the property of the said C. his heirs and assigns, so long as he or they shall pay or cause to be paid such sum or sums of money as shall from time to time be assessed thereon, by a legal vote of said society, for the support of the minister, repairs of the house, and other necessary expenses.</p> <p>And, if said C., his heirs or assigns, should fail of paying, or causing to be paid, the said assessments, for one year, then said pew shall revert back to the society, who are hereby authorized and empowered to sell said pew No. 66, and after deducting what may be due to said society and incidental charges, shall pay the overplus to said C., or his legal heirs and assigns.</p> <p>And if said C. should at any time intend to transfer said pew, No. 66, he shall first offer it to the society; and whenever said pew is transferred, the taxes due thereon shall be paid to the end of the quarter in which the transfer is made.</p> <p>The appraisal and assessment were not recorded in the society’s records at the time they were made; but the defendants produced a certificate, recorded therein June 20th, 1841, signed by nine persons describing themselves as the surviving members of the committee, which contained a copy of such appraisal and assessment; and it was agreed, for the purposes of the trial, that the persons, whose names were subscribed to the certificate, would testify to the facts above stated, relative to the making of the appraisal and assessment; that a report was made by the committee in accordance therewith; and that the appraisal and assessment so made had ever since been observed and acted upon by the society.</p> <p>On the 18th of May, 1823, certain by-laws were adopted oy the corporation.</p> <p>By the third article of these by-laws, the standing commit* tee of the society was required, among other things, “to examine and approve all accounts against the society, before authorizing the treasurer to pay them ; and to compute the expenses of the society, and assess them on the pews according to their appraisal.” The treasurer, by the fourth article, was required “to give special notice to delinquent proprietors three months previous to their pews being forfeited; to note to the committee all pews which should become forfeited ; to cause notice to be given of their sale, by posting a printed or written notification thereof upon the doors of the meetinghouse, and placing one in each pew in the house, at least fourteen days previous to the sale thereof; and to employ a licensed auctioneer to make the sale.” By the ninth article, the taxes were required to be paid quarterly ; and, if not paid at the expiration of the fourth quarter, it was declared, that the pew, or pews, should become forfeited to the society for their payment, and should then be sold at public auction, and the surplus of the sale, after deducting the moneys due to the society, should be paid over by the treasurer to the former owner thereof.</p> <p>In the year 1838, the subject of a change of the corporate name of the society was brought forward at a quarterly meeting, regularly notified and held on Sunday afternoon the 18th of February, at which a motion was made in writing, for the appointment of a committee of three, to consider the propriety of applying to the legislature for an alteration of the act of incorporation, “so as to conform to the sentiments of the society and the name of the church.” After discussion, the subject was referred to the standing committee, who, at their next regular meeting, came to a vote thereupon, “ that it be recommended to the proprietors, that it is expedient to change the name, but would leave it with them to designate.”</p> <p>A meeting of the society being called and held for the purpose, the committee made a report of the vote above mentioned ; and a discussion thereupon ensued, at the close of which the report was accepted, by a vote entered on the records as nineteen to eleven. It was then voted, that an application be made to the legislature, to change the name of the society to that of the Bulfinch Street Society, and that the clerk prepare and present a petition for that purpose.</p> <p>The clerk, in pursuance of these votes, prepared a petition, and caused it to be presented to the legislature, in the name and on the behalf of the society, setting forth that the members were desirous that their corporate name should be changed as above mentioned, for the reason, that the term “ Universalist,” as then theologically defined, expressed a meaning inconsistent with their principles of faith. On this petition being presented, seventeen members of the society signed a memorial or remonstrance, which was presented to the legislature, praying that the name might not be changed, as they knew of no benefit that could arise to the society therefrom; and expressing their belief, that if the change should take place, a division would be created in the society, which they desired to prevent. The legislature, notwithstanding, passed an act, April 17th, 1838, authorizing the society to take the name of the Bulfinch Street Society, whenever, at a legal meeting called for the purpose, it should so elect.</p> <p>At a meeting of the society held on the 22d of April, 1838, the clerk reported, that, agreeably to the instructions received by him at the meeting of March 18th, he had made application to the legislature, in behalf of the society, for a change of its corporate name, and that the legislature had granted the request and had passed an act accordingly, as already mentioned. The report was accepted.</p> <p>A meeting of the society being called and held for the purpose of acting upon the result of the application for the change of name, the clerk was directed to read such parts of the records as had reference to the subject of the meeting, together with a copy of the petition for the change of name, and the act passed by the legislature for that purpose ; which having been done, it was then voted, that the question of the acceptance of the act be taken by yeas and nays on written ballots; and the question was thereupon so taken, and decided in the affirmative, eighteen yeas and fourteen nays.</p> <p>On the 20th of May, 1838, the by-laws of 1823 were revised and amended, among other particulars, as in the following new draft of the fourth article :</p> <p>Article 4th. The treasurer shall also be the collector of the society, and shall keep a just account of all the receipts and expenditures thereof, and of all the debts and credits of each member of it, to be open for the inspection of any member of the society, and make a report thereon at the annual meeting.</p> <p>He shall collect and receive all moneys due to the society, and give special notice to delinquent proprietors, three months before their pews become forfeited.</p> <p>He shall note to the committee all pews that have become forfeited, and shall cause notice of their sale to be given according to law: namely, he shall post up a notification of the intended sale thereof, at the principal outer door of such church or house, at least three weeks before the time of the sale, therein setting forth the number of the pew, if any, the name of the owner or occupant, if known, and the amount of the tax due thereon; and if said tax or any part thereof shall remain unpaid at the time appointed for such sale, the treasurer shall sell the pew, by public auction, to the highest bidder, and shall execute and deliver to the purchaser a sufficient deed of conveyance of the same ; and the money arising from said sale, beyond the taxes and reasonable incidental charges, shall be paid by the treasurer, to the former owner of the pew so sold, or to his (or her) assigns.</p> <p>On the 25th of January, 1839, the plaintiff became a member of the society, then known as the Bullfinch Street Society, by purchasing a pew of one of the original purchasers at the sale in 1823, who had ever since been the owner thereof. The transfer to the plaintiff was made by an indorsement, signed by the grantor, on the back of the original deed, in the following words : “In consideration of two hundred dollars, I hereby transfer and convey the within named pew to Benj. B. Mussey, January 25th, 1839. S. C.” On the same day, the plaintiff received, without objection, a deed of the pew from the society, in the form already mentioned (p. 151) except that the name of the Buliinch Street Society was substituted therein for that of the Central Universalist Society.</p> <p>In October, 1839, the Rev. Mr. Gray, a minister of the Unitarian denomination, was settled over the society.</p> <p>On the 12th of February, 1840, the plaintiff first refused to pay the tax on his pew, having previously paid the tax thereon from the time of his purchase.</p> <p>Or the 13th of March, 1840, the plaintiff purchased two more pews, and received deeds thereof from the society, without objection, in the form already described.</p> <p>A special meeting was held on the 25th of October, 1841, in pursuance of an order of the standing committee, and after notice duly given by the clerk, at which certain alterations were made in the by-laws, and a preamble and vote were adopted, confirming the past acts and doings of the corporation, as recorded in the book of records, especially the proceedings relative to the change of name, and to the alterations of the by-laws.</p> <p>The following are the material changes which were made in the by-laws, at this meeting:</p> <p>The words “ their appraisal,” in the third article, relative to the assessment of taxes, were struck out, and, instead thereof the words “ the original assessments made by the committee of the proprietors appointed at a meeting held April 28th, 1823, and which is recorded at page 441 of these records,” were inserted. The notice to delinquent proprietors, as provided in the fourth article, was abrogated; and, instead thereof, notice was required to be given to such proprietors, as provided in the ninth article, which was revised and amended, as follows:</p> <p>Article 9th. The taxes shall be paid quarterly, and notice thereof shall be given by the treasurer, by a printed bill or notification left in each pew on the Sunday preceding or next after the day when the tax shall be payable; and if the same shall not be paid within six months after such day, any pew upon which such tax shall remain so unpaid, shall thereby become forfeited, and notice thereof, signed by the treasurer, stating the amount of the taxes due, and of the intention of the treasurer to sell the same, unless they shall be paid with interest, and of the day and hour and place of sale, shall be served on the proprietor, by leaving a copy at his usual place of abode, or by depositing the same in the post office, directed to him at Boston, and in such pew, at least four weeks before the day fixed for such sale; and if the taxes and interest shall continue unpaid, the treasurer shall proceed to make sale of such pew, as prescribed in the fourth article, unless otherwise directed by the standing committee.</p> <p>Additional by-laws were also made, relating particularly to the form of the deeds to be given by the society on a transfer of pews. The new form contained a condition, that the grantee should pay all taxes, &c., lawfully assessed upon his pew, pursuant to the by-laws, and, that upon failure or neglect of payment, for the period of six months, the, pew should become forfeited and revert to the society, and be sold in the manner prescribed by the by-laws, for the payment of the taxes due thereon.</p> <p>On the 26th of April, 1842, payment of taxes having been for some time refused by the plaintiff and several other proprietors, the standing committee directed the treasurer to notify the delinquents, that their pews were forfeited, and would be sold at auction, on the 7th of June- then next, unless the taxes due thereon, with incidental expenses, should be previously paid. On the 27th of April, the treasurer gave the notices as directed, by sending one in a letter to each delinquent, through the post-office, by depositing them in the pews according to the by-laws of 1841, and by posting a notice three months on the outer door of the meetinghouse. The notice consisted of a schedule of the pews, according to their numbers, with the names of the proprietors, and the amount of taxes due on each, and a statement of the time and place of sale.</p> <p>On the 7th of June, 1842, a sale of the pews of delinquent proprietors took place, agreeably to notice, on the following conditions : “ first, cash as soon as knocked down; second, receipt to be given for the money, and deed as soon as it can be made out; third, deed to be given in form adopted 25th of October, 1841.” The plaintiff, who was present, protested against the sale of his pews, and paid the taxes thereon and expenses, declaring, at the same time, that he should bring an action to recover back the money so paid. He also purchased at the sale fourteen pews belonging to other delinquents, which were sold for taxes assessed in like manner, and for the like purposes, with those on his own pews, and received deeds of the same from the society, without objection, in the form prescribed by the by-laws of 1841.</p> <p>It appeared, by the testimony of the treasurer, that all the taxes since 1835 had been notified and paid quarterly upon the basis of the original appraisal and assessment made in 1823, with an addition of ten per cent which had been made in 1833, and had been since continued, and with occasional temporary additions to the amount, prior to the year 1833, but with no change in the proportions ; and it was admitted by the plaintiff, that all the taxes prior to 1835 had been collected in like manner, and upon the same original appraisal and assessment, with the addition of the ten per cent in 1833. It appeared by the records, that accounts of the taxes received quarterly, and of the expenditures incurred, had been yearly rendered by the treasurer to the standing committee and proprietors, since the year 1835, which accounts had also been annually approved by the committee and the proprietors ; that-the doings of the standing committee, for the same time, had been uniformly approved at the quarterly meetings of the proprietors, down to and including the 25th of April, 1841; that the proprietors, at their several annual meetings, had fixed the sala’-y of their minister by vote ; and that no protest or objection against any proceeding had been made by the plaintiff, till the sale of his pews, except on the occasion of the settlement of Mr. Gray, in 1839, and the meeting of October 25th, 1841.</p> <p>It did not appear, that any record had been made of a computation of the expenses, and of an assessment of taxes, during the years 1839 and 1840, or subsequently until July, 1841; when, at a meeting of the standing committee held on the 13th, it was voted, that a subcommittee be appointed to compute the expenses of the society, and to assess them on the pews, according to the appraisal. The subcommittee subsequently computed the expenses for the year 1841, and reported the same to the standing committee, who thereupon voted, that the sum so ascertained be ratably levied and assessed on the pews, according to the assessment and appraisal of 1823.</p> <p>No subsequent computation and assessment were made until July 12th, 1842, when a similar proceeding took place with reference to the expenses for the year ending May, 1843.</p> <p>The plaintiff paid the taxes on his first purchased pew, from the 12th of February, 1839, to the 12th of February, 1840, without protest or objection. From the last mentioned date, he refused to pay the taxes on that pew, and those also assessed on the two others purchased by him March 13th, 1840, to the day of the sale, June 7th, 1842. The taxes, for payment of which the plaintiff’s pews would then have been sold, if he, had not paid the same, were due on one pew, ten quarters from February 12th, 1840, to May 12th, 1842, and eight quarters on each of the other pews from August 12th, 1840, to May 12th, 1842. The sum paid by the plaintiff included the taxes, interest, and expenses.</p> <p>The plaintiff, in the course of the trial, proposed to introduce evidence to show, that the taxes assessed since the fall of 1839, for the recovery of which the suit was brought, were raised and in part appropriated to pay the salary of the Rev. Mr. Gray, a minister of the Unitarian denomination, who was settled over the society in October, 1839; that the settlement of Mr. Gray was illegal and void; and that the taxes had consequently been raised for an illegal purpose. But the court ruled, that the validity of Mr. Gray’s settlement could not be tried in this action.</p> <p>The defendants offered to prove, that the records of March 18th, 1838, had been altered without authority, and that the vote on the acceptance of the report of the standing committee, respecting a change of name, was, in fact, nineteen to one, and was originally so recorded, and that the number of the votes in the negative had been altered from one to eleven. But the court ruled, that evidence to contradict the record in this particular, was inadmissible.</p> <p>The cause was argued at a former term, by B. Rand, C. H. Warren fy A. H. Fiske, for the plaintiff, and by C. G. Loring fy W. Dehon, for the defendants.</p>

This case came before the court on exceptions taken to the rulings and instructions of .the judge of the court of common pleas, before whom it was tried. The bill of exceptions is as follows : “ This was an action of assumpsit.

<p>The defendant, in a bill of discovery, is not bound to answer any interrogatories, which may be used as evidence against him on a criminal charge.</p> <p>The allegation of combination and fraud should be omitted in a bill of discovery.</p> <p>T.he rule of the English courts of equity, that the plaintiff in a bill of discovery ((shall only have a discovery of what is necessary to his own title, and shall not pry into the title of the defendant ” (Cooper Eq. P. 58), is not applicable in this commonwealth.</p> <p>The assignee of an insolvent debtor, who has commenced an action of trover for the recovery of personal property, mortgaged by the insolvent before his insolvency, may maintain a bill of discovery against the mortgagee, for the purpose of obtaining evidence to impeach the title of the latter.</p> <p>Where the defendant in a bill of discovery demurred, and the demurrer was sustained as to certain formal parts of the bill, and was overruled as to the residue, and was then withdrawn, and the bill amended, it was held, that the defendant, notwithstanding the delay produced by filing the demurrer, should be entitled to his costs, on filing full and proper answers.</p>

<p>An agent has no right to delegate his authority to a sub-agent, without the assent of his principal; but, where from the nature of the agency, a sub-agent must necessarily be employed, the assent of the principal is implied; as, where a draft, payable at a distant place, is left with a bank for collection, it must be presumed, that it is intended to be transmitted to a sub-agent, at the place where it is paya ble, and not that the bank is to employ its own officers to proceed there, for the purpose of obtaining payment.</p> <p>A bank, by which notes and bills, payable at a distant place, are received for collection, without specific instructions, is bound to transmit or to cause the same to be transmitted, by suitable sub-agents, to some suitable bank, or other agent, at the place of payment, for that purpose; and where suitable sub-agents are thus employed, in good faith, the collecting bank is not liable for their neglect or default.</p> <p>The D. and M. Bank, at Milton, in this state, having discounted a number of drafts, payable in Washington, in the District of Columbia, transferred the same, by a general indorsement, and without any specific instructions, to the N. E. Bank, in Boston, their general agents, for collection: the latter, having no correspondent in W., transferred the drafts, by a like general indorsement, to the C. Bank, in Boston, then and afterwards in good credit, for collection: the C. Bank transmitted the drafts to their correspondent, the Bank of the M. , in W., for the same purpose: the C. Bank having subsequently failed, the N. E. Bank demanded the drafts of the B. of the M. before they became due: the latter refused to deliver the drafts, but collected them, and applied the proceeds to the payment of a balance due them from the C. Bank; whereupon the N. E. Bank commenced an action against the Bank of the M. to recover the amount: — it was held, 1, that the N. E. Bank, having acted in good faith, and the C. Bank being a suitable agent, had authority to employ the latter to make the collection; 2, that no proof of general usage was necessary to give the N. E. Bank such authority; and, 3, that, as the drafts were transferred to the N. B. Bank, by a general indorsement, that bank might transfer them in the same manner to the C. Bank, and were not bound to make a restricted indorsement.</p>

<p>It is in the discretion of the court, in which an indictment is pending, to quash it, or to leave the defendant to a motion in arrest of judgment, and the refusal to quash an indictment is not a proper subject of exception.</p> <p>An indictment ought not to be quashed, in a doubtful case, but only when it is clearly insufficient to sustain a judgment against the defendant.</p> <p>In order that the papers and letters of an insolvent debtor, produced by his assignee, may be competent evidence as coming from the possession of the insolvent, it must be shown that the assignee received them from the messenger, and that the latter took possessions them under his warrant, as papers relating to the estate of the insolvent</p> <p>Letters addressed to a party, and found in his possession, are not evidence against Mm of the matters therein stated, unless the contents have been adopted or sanctioned by some reply, or statement, or act done, on his part, and shown by other proof.</p> <p>Where one of two persons, who had examined and appraised the assets of an insolvent debtor, was called as a witness to the value thereof, and produced a paper signed by himself and his associate, containing the results of their appraisal; it was held, that such paper could not be read to the jury, as the joint certificate of the witness and his associate, without first calling the latter to testify to its accuracy.</p> <p>An indictment for a conspiracy alleged, in the first count, that the defendants conspired together to cheat and defraud P. S. S. of his goods; in the second, that they conspired to get the goods of P. S. S. into their possession, under color and pretence of buying the same; and, in the third, that they conspired to get possession of the goods of P. S. S., upon trust and credit, and then to remove the same out of the commonwealth: On the trial of this indictment, evidence having been given of a purchase of goods by the defendants of P. S. S., ostensibly for cash, but, in fact, on the short credit resulting from the indulgence usually allowed on cash sales: — it was held, that the prosecuting officer might inquire of a witness, whether, at the time of the sale, the standing and credit of the defendants were such, that they could have bought goods on credit;—also, that other purchases of goods, made by the defendants of other persons, at about the same time, and under the same circumstances, with the purchase of P. S. S., were admissible in evidence, to show the nature and extent of the defendants’ business, and to prove the criminal intent alleged in the indictment; — also, that evidence of the defendants’ having obtained bills of lading, about the same time, and forwarded them to their correspondents in other places, accompanied by drafts thereon, before the goods described in such bills of lading had been in fact purchased, was admissible to prove the criminal intent.</p> <p>it is competent for a party, after having closed his case, so far as relates to the evidence, to introduce additional evidence, by the cross examination of the witnesses on the other side, for the purpose of more fully proving his case.</p> <p>Where handwriting is to be proved by comparison, the standard used for the purpose must be a genuine and original writing, and must first be established by clear and undoubted proof: Impressions of writings, taken by means of a press, and duplicates made by a copying machine, are not originals, and cannot be used as standards of comparison.</p> <p>Where several persons are jointly indicted and on trial, the submitting of the case of one of them to the jury, by itself, in the course of the trial, at the instance of the other defendants, in order that such defendant, if acquitted, may be called as a witness by them, is a matter peculiarly within the discretion of the presiding judge, and depending upon his view of the evidence; to be allowed, where there is no evidence against the party, and to be refused where there is such evidence, although, in the opinion of the judge, it may be altogether insufficient for a conviction.</p> <p>The obtaining of goods on credit, by an insolvent person, without disclosing his insolvency, and without having any reasonable expectation of being able to pay for such goods, in and by means of the fair and ordinary course of his business, is not of itself such an unlawful act, as may be the subject of a conspiracy; though, it would be otherwise, it seems, in the case of a purchase made without any expectation of payment.</p> <p>The obtaining possession of goods, under the pretence of paying cash for them, on delivery, the buyer knowing that he has no funds to pay with, and appropriating the goods to his own use, in fraud of the seller, is such a fraud or cheat, as may be the subject of a conspiracy.</p> <p>In an indictment for a conspiracy to do an act, which is a well known and recog nized offence at common law, the object of the conspiracy may be described by the general terms, by which it is familiarly known; if the alleged purpose be the doing of an act, which is not unlawful in itself, but which is to be effected by the use of unlawful means, those means must be particularly set forth; if it be the doing of an act, which is not an offence at common law, but only by statute, the purpose of the conspiracy must be set forth in such a manner as to show that it is within the terms of the statute.</p> <p>"When a conspiracy is plainly and technically alleged, the acts done in pursuance of it need not be set out; or, if set out, they need not be proved.</p> <p>It is not a sufficient statement of the offence, in an indictment for a conspiracy to cheat, to allege that the defendants conspired together to cheat and defraud P. S. S. of his goods; or to acquire and get into their possession the goods of P. S. S., under color and pretence of buying the same; or to get possession of the goods of P. S. S. upon trust and credit, and then to remove and transport them out of the commonwealth.</p> <p>The words “ cheat and defraud ” do not necessarily import any offence, either by statute, or at common law; and, therefore, an indictment for a conspiracy, in which the object is alleged to be to “ cheat and defraud,” must set forth in detail such further allegations, as will show the object to be an offence, either by statute, or at common law.</p>

<p>Where one of the parties to a written contract, without objection from the other, introduces parol evidence to add to such contract, with reference to a particular point, he cannot afterwards object to the introduction of similar evidence by the other party to the same point.</p> <p>A general agent, for buying and selling, cannot, without special authority, resort to extraordinary and expensive means, to raise money for his principal.</p> <p>The record of a vote of the directors of a manufacturing corporation, appointing an agent, and an acceptance and record of the report of a committee, appointed to arrange with him for his compensation, do not constitute a contract in writing.</p> <p>Where the clerk of a manufacturing corporation was applied to, by letter, for information as to the terms upon which a firm, of which the clerk was also a member, conducted the business of the corporation, as its agents, and made a verbal reply thereto;—it was held, that such reply was admissible in evidence against the firm, as the confession or admission of a party.</p> <p>A factor, having a lien on goods consigned to him for sale, to a greater amount than the value of the goods, and being called upon by a creditor to give security, agreed with such creditor and a third person, that the latter should become the purchaser of the goods, and give his notes therefor, at an agreed price, on a credit of eight months ; that the notes should be deposited with the creditor as collateral security; that the goods should remain with the factor, in order to be resold by him; that the proceeds thereof, when sold, whatever the amount might be, should he paid over to the creditor, towards payment of the debt; that the notes of such third person should thereupon be cancelled; and the agreement was carried into execution accordingly:—it was held, that the transaction was a valid sale of the goods to the first purchaser, and not a mere pledge to the creditor; and that, as between the principal and factor, the price of the goods was that for which they were first sold, and not that for which they were resold by the factor.</p> <p>The agent of the H. M. Co. at Ware, being authorized for the purpose by a vote of the corporation, made drafts on D. B. & Co. of New York, payable to the order of G. S., treasurer of the company, and one of the firm of G. S. & Co., the agents of the company in Boston, which drafts were there accepted by D., one of the drawees, who was also a member of the firm of G. S. & Co., and were then indorsed by G. S., treasurer, and by G. S. & Co., and negotiated and disposed of by them for their own benefit, under an agreement with the H. M. Co. that they would pay them at maturity: G. S. & Co. having failed before the drafts became due, and being unable to take them up at maturity, the drafts, when due, were proved and allowed as claims against the H. M. Co., who had also failed in the mean time, and dividends were paid thereon by the assignees of the latter:—it was held, that the assignees of the H. M, Co. were entitled to charge the amount of such drafts against Gr. S. & Co. in account; notwithstanding, that, on some of them, the indorsement of G. S., treasurer, was made by attorneythat some of them were paid by one of the indorsers, subsequent to Gr. S. & Co., without previous demand of the acceptor, and notice to such indorser;—and that some of them had been negotiated and received in payment of or as collateral security for illegal loans.</p> <p>A draft, by the agent of a manufacturing corporation, payable to t( G. S., treasurer ” thereof, is payable to him personally, though described as treasurer, and not merely as treasurer for the time being, and may be indorsed by him, as treasurer either in person, or by attorney.</p>

<p>This action, which was upon a policy of insurance against fire, was tried before Shaw, C. J., from whose report thereof the following facts appeared.</p> <p>The policy was dated January 6th, 1843, and by it the defendants caused the plaintiffs to be insured, to the amount of six thousand dollars, on their brick building, with a “composition roof, occupied by several tenants, and connected, by doors, with the adjoining building, situate at the comer of Charles Street and the Western Avenue, in Boston. A cabinet maker’s shop is in the building.”</p> <p>The policy also contained a clause, providing, that, “in case of any loss, the same is to be paid, without any deduction, in ninety days after proof thereof; ” and a further clause, that “ the assured agrees, that in case of any loss, or damage, the said company shall have the right to replace the articles lost or damaged, with others of the same kind and equal goodness, at any time within ninety days after notice of the loss.”</p> <p>The plaintiffs introduced evidence tending to prove, that, at the time the policy was effected, a block, consisting of two brick buildings, belonging to the plaintiffs, stood at the corner of Charles Street and the Western Avenue, the most easterly of the two being directly on the corner of the street; that the last named building was much older than the other and most westerly one, and, before the latter was built, had attached to it a brick, two-storied spur or L part, containing a kitchen in the lower story, and a breakfast room over it in the upper; that, when the westerly building was erected, the northern wall was joined on to, and built over, the spur part, so that the wall of that part was incorporated into and made a part of the northern wall of the new or westerly building, and the rooms of the latter building, in the third and fourth stories thereof, extended over the rooms in the L; that the wall between the easterly and westerly building was entirely of brick, from the cellar to the roof, and there were three doors through it, namely, one leading from a room in the lower floor of the easterly building, occupied as a grocery, into a corresponding room in the westerly building,—a second leading from the entry of the eastern building into the lower room of what was previously the spur or L, — and a third in the second story of the easterly building, leading into the room which was before the upper room of the L; that the building on the corner, at the time the policy was made, was occupied by several tenants, was covered by a flat composition roof, and had doors in the partition wall between it and the western building ; that the western building was occupied by several tenants; that it had a hipped roof, with a space on the top, of about one hundred feet, covered with composition, the remainder, containing about fourteen hundred and fifty feet, being steep pitched and slated; that in this building there was a carpenter’s shop; and that, within the period mentioned in the policy, a fire occurred on the premises, by which the western building was partially consumed, and the eastern slightly injured.</p> <p>The defendants contended that the policy, upon the face of it, was void; or, if not void, that it covered the easterly house only. But the presiding judge ruled, that, if the wall, constituting the original western wall of the main part of the house first built, was carried up higher, and formed the easterly wall of the new westerly building, and included in such new building the former kitchen and breakfast room, or L part; if there was no connection between such new westerly building and the old house, but by three or four doors, such wall being carried up above the roof of the old house, tc constitute the easterly wall of the new one ; if each part was occupied by several tenants, and each was a brick building, the easterly house covered with a composition roof, and the westerly in part with a composition roof; and if there was a cabinet maker’s shop in the westerly building, and no cabinet maker’s shop in the easterly building, each being connected with the other by doors; then the building insured was the one lying westerly of the wall, and that lying easterly of the wall, and on the corner of Charles Street and the Western Avenue, was not included in the policy.</p> <p>The plaintiffs, in order to show a notice and proof of loss, read in evidence a letter from them to the defendants’ president, dated November 14th, 1842, in which the plaintiffs informed him, that it had “ become necessary for the assured, under policy 8650, made by the Franklin Insurance Company, to give notice of a loss or damage to the premises insured, which happened on the evening of the 12th instant, and to request that they may be indemnified, according to the effect of that policy.”</p> <p>The defendants contended, that this letter alone was not sufficient proof of loss, within the meaning of the policy; but the judge ruled otherwise, and no other evidence was introduced of any notice or proof of loss having been given to the defendants, before the commencement of the action.</p> <p>Other points arose on the trial, and were ruled upon, which became immaterial, in consequence of the opinion of the court, with reference to the questions above stated.</p> <p>The cause was argued at the March term, 1846, by R. Fletcher Sy E. D. Sohier, for the defendants, and by S. Bartlett Sy W. Sohier, for the plaintiffs.</p> <p>The opinion of the court was delivered at the same term, by</p>

This action, which was tried in t'he court of common pleas, before Wells, C. J., was brought to recover one quarter’s rent, for the use and occupation of certain premises, from the 25th of December, 1845, to the 25th of March, 1846. The premises, which had been occupied by the defendant, who was a physician, consisted of a suite of apartments, which the plaintiff had been accustomed, for a long time, to let to persons of the medical profession.

<p>This action, which was brought to recover the price of two tubs of butter, came before the court on exoptions (only one of which was now insisted on), taken by the defendant to the rulings of Colby, J., before whom the cause was tried in the court of common pleas.</p> <p>The plaintiff having been allowed, against objection on the part of the defendant, to prove his claim as a book account, the defendant then introduced evidence, from which the following facts appeared. In November, 1845, the plaintiff offered several kegs of butter to the defendant for sale. On examining the butter (two or three kegs only), the defendant told the plaintiff that he had been smoking, and was therefore unable to decide whether it was good or not, but that he wanted it of a first rate quality. The plaintiff then said, that he called the butter first rate, and the defendant replied, that if it was good, the plaintiff might leave him two tubs. The two tubs were left, in the course of the day, at the de fendant’s store, where they remained for about a week, when the plaintiff came to the store, and some conversation ensued relative to the butter. The plaintiff was there again some time afterwards (the witnesses did not state when or how long afterwards), and requested that the butter should be put into the cellar.</p> <p>The principal question was, whether the butter was of a good quality, and much evidence upon this point was introduced on both sides.</p> <p>The defendant contended, that the butter was sold under a warranty that it was of the best quality, and that the burden of proof was on the plaintiff to prove that it was of such a quality. But the presiding judge instructed the jury, that if the butter were sold with a warranty as to quality, or with a representation amounting to a warranty, the burden of proof was on the defendant to show, that it was not equal to the warranty or representation. The jury returned a verdict against the defendant, who thereupon filed exceptions.</p>

In this action, which was brought to recover the amount due on a promissory note, given by the defendant to the plaintiff, dated January 31, 1835, and purporting to be witnessed, the defendant relied on the statute of limitations, Rev. Sts. c. 120, § 1, in defence, and the question was, whether the note was “ signed in the presence of an attesting witness,” within the fourth section of the same chapter.

In this case, which was an action of replevin, tried in the court of common pleas, before Colby, J., it appeared, that, on the 26th of February, 1846, Sarah L. Hawes, being the owner of the property replevied, made a mortgage thereof, with other property, to the plaintiff, to secure the payment of a debt on demand; that, on the 19th of June following, the mortgage still subsisting, the defendant, a deputy sheriff, seized the mortgaged property on an execution against the…

<p>This action was brought by the plaintiff, as the payee, against the defendant, as the acceptor, of an order drawn on him by Patrick Calpin, of which the following is a copy:</p> <p>“ $100. North Berwick, December 27th, 1841. S. F. Belknap, — Sir Please pay the hearer, Jeremiah Lord, of North Berwick, one hundred dollars, and charge the same to my account. Patrick Calpin. [Indorsed] Accepted to pay the within when due according to P. Calpin’s contract. S. F. Belknap, by Ben], S. Newhall. Dec. 28, 1841.”</p> <p>It appeared, on the trial, which took place before Wells, C. J., in the court of common pleas, that, by articles of agreement, dated July 2d, 1841, it was agreed between the de-. feudant, under the name of S. F. Belknap and company, and Calpin, the drawer of the order, that the latter, in consideration of the payments and covenants, to be made and performed by the former, should construct and finish, according to the descriptions and specifications contained and referred to in the agreement, a certain section of the Portland, Saco & Portsmouth Railroad, in the most substantial manner, in every respect, and to the satisfaction and acceptance of the resident engineers of the road.</p> <p>The agreement contained also the following clauses:</p> <p>“ And the said section of the road shall be made and completed, as herein described, on or before the first day of June, 1842, and for a failure to make and complete the said section of road within the time fixed for its completion, said B. & Co. shall assess such damage as they may think just and reasonable, and charge said P. C. with the amount thereof, and the said B. & Co. may employ other help to hasten the completion of the work, within the said specified time, and the expense of such help shall be paid by the said C.</p> <p>“ And, in case it should appear to said engineers, or to said B. & Co., that the work has not proceeded or gone on with sufficient speed, they shall have power to determine that this contract has been abandoned, and, in the event of said determination, this agreement on the part of said B. & Co. shall become null and void, and any balance of money due shall be forfeited by said C. to said B. & Co., and the said B; & Co. shall have full right to contract with any person or persons in the stead of the said P. C., &c., for the completion of the said work, &c.”</p> <p>“ In consideration of the fulfilment, by the said P. C., of the foregoing provisions of this contract, the said B. & Co. do hereby promise and agree, for doing and performing the work as aforesaid, to pay or cause to be paid to the said P. C., his, &c., for every cubic yard of earth, &c., in monthly payments, of three fourths of the amount of the engineer’s estimate, of work done.</p> <p>“Provided always that said engineer shall decide on the quantity and quality of the excavation, and that his decision shall be final and conclusive. And when the whole of the section hereby contracted for shall have been accepted as completed agreeably to contract, the balance due shall forthwith be paid to the said C., his, &c. And the decision of said engineer, upon the admeasurement of the work to be executed under this contract, shall be conclusive. And it is hereby further agreed, that if the said P. C. shall not, on his part, well and truly perform all the covenants herein contained, said B. & Co. may dismiss him from the work, and then and in that event, this contract shall become null and void, and any balance for work done on said road, which would have been due to said P. C., shall be forfeited and become the right and property of the said B. & Co.”</p> <p>The plaintiff admitted, that the contract had been abandoned by Calpin, either voluntarily, or by a dismissal under the terms of the contract, on or about the first day of June, 1842, and that the work remaining unfinished had been performed by the defendant.</p> <p>The plaintiff then offered further evidence, which was objected to by the defendant, on the ground, that no action would lie against him under and by the terms of the contract, until the final completion of the same by Calpin, and consequently, that nothing was due on the acceptance according to its terms.</p> <p>But the court decided, that further evidence was admissible, and that the defendant would be liable on the acceptance, provided the plaintiff could satisfy the jury, that a sufficient amount of funds, payable from the three quarters advanced payments provided for by the contract upon the engineer’s estimates, over and above other liabilities assumed to be paid by the defendant, previous to the acceptance of the order, was, at any monthly settlement between the date of the, acceptance and the time of the abandonment of the contract by Calpin, in the hands of the defendant, unless the defendant could satisfy the jury, that the damage sustained by the abandonment exceeded the one quarter reserved by the terms of the contract.</p> <p>The evidence, offered by the plaintiff, was thereupon admitted ; and a verdict being rendered in his favor, the defendant filed exceptions.</p>

<p>These were actions on the case, for an alleged obstruction, by the defendants, of the plaintiff’s enjoyment of a right of way in a passage or court called Morton Place, which the plaintiff claimed as appurtenant to his dwelling-house.</p> <p>The declaration, in each case, set forth the unlawful erection of warehouses, the windows, shutters, and doors of which opened upon and swung over, and the eaves of which projected into, the passage or court known as Morton Place; that the defendants had excavated parts of the same, and had placed upon and around such excavations large quantities of iron and stone ; that they had placed upon other parts of the passage large quantities of earth, bricks and stones, and had erected a sidewalk thereon; and that they had raised and elevated parts of the passage, so that the same was obstructed, and the flow of the water from the surface thereof impeded, and directed into and upon the plaintiff’s foundation and cellar.</p> <p>The cases were tried in this court before Wilde, J., from whose report thereof, accompanied by plans and deeds exhibited by the parties, the following facts appeared.</p> <p>The plaintiff’s dwelling-house was on the easterly, and the erections and obstructions complained of on the westerly, side of Morton Place.</p> <p>The defendants had erected warehouses on lands belonging to them, on the westerly side of Morton Place, with a sidewalk in front containing trap doors, and gratings, for communicating with and admitting light to apartments under ground, and with doors and shutters, projecting, when opened, over the line of the passage way.</p> <p>Several witnesses, called by the plaintiff, who were occupiers of houses on the easterly side of Morton Place, testified, that, in their judgment, the narrowing of the court, by the erection of the sidewalk; — the leaving of the iron shutters partly open, which frequently occurred; — the keeping open of the trap door, in the sidewalk of one of the defendants, Avhich was the case from a third to a half of each day, for the purpose of putting in and taking out goods; — the peril in the night time from a break in the sidewalk owing to an increase of its width opposite the building of one of the defendants; — and the unpleasantness, to females and others, of that part of the sidewalk, Avhich consisted of iron gratings for the admission of light; —Avere an injury to the plaintiff’s estate.</p> <p>The plaintiff derived the title of his estate, to which he claimed the right of way in question as appurtenant, from Jonathan Cogswell, under a deed bearing date July 24th, 1835; at which time, Cogswell was the owner of the estate Avhich he then conveyed to the plaintiff, and was also seized in fee of the court or passage known as Morton Place.</p> <p>The deed of Cogswell to the plaintiff described the house and land thereby conveyed as being numbered five on a plan of Morton Place, and granted and conveyed to the plaintiff an easement in Morton Place, in the following terms: “ the privilege of using said court or passage way, called Morton Place, which, with the sidewalk, is about thirty feet in width, for the purpose of a passage way, in common with all other persons, whose estates are bounded thereby, or communicate therewith, so, however, as not to hinder or prevent me the said Cogswell, or my heirs or assigns, from erecting and maintaining a fence or wall on the westerly side of said passage way, in case I or they choose to do so, at any time, if, by the erection of such fence or Avail, the width of said court shall not be reduced more than eighteen inches, Avhich reservation is made to enable me, my heirs and assigns, to hinder and debar the owners, tenants and occupants of the land adjoining said court, on the westerly side thereof, from using said court, or having any communication therewith, except by my or their permission and consent.”</p> <p>The estates of the defendants are situated on the westerly side of Morton Place, and arc parts of what was known' as the Bowdoin estate, the defendant Wigglesworth being the owner of one lot, and the other defendants of three lots.</p> <p>At the date of the deed of Cogswell to the plaintiff, Cogswell was seized in fee of Morton Place; and his estate therein, subject to the easements created by his deed to the plaintiff, subsequently passed by mesne conveyances, and, in April, 1836, vested in Russell and Amory; who were also at the same time the owners of the Bowdoin estate, including the land, of which the defendants subsequently became the purchasers. In October, 1836, Russell and Amory conveyed the Bowdoin estate to Henry Rice, in fee, by a deed which contained the following clause: “ And also conveying to said Rice, his heirs and assigns, the right of passing and repassing, draining, and all the usual easements on said Morton Place, not inconsistent with those of the easterly abutters.” In June, 1841, Rice conveyed the estate, with the exception of a part previously conveyed to John Davenport, to Thomas Searle. The deed to Searle conveyed the right of passing, repassing, &c., in Morjton Place, in the terms of the deed from Russell and Amory to Rice. The estate of Searle, which consisted of an equity of redemption, was sold on execution, in March, 1843, by Watson Freeman, a deputy sheriff, to George Wildes, including “ the right of passing, repassing and draining, and all the usual easements on said Morton Place, not inconsistent with those enjoyed by the easterly abutters.” The estate, or a portion thereof, was conveyed by Wildes, December 29th, 1843, to Griffin, who subsequently conveyed portions or lots thereof to the several defendants; but in none of these last mentioned conveyances was there any grant or mention of a right of way in Morton Place.</p> <p>The judge, before whom the trial took place, being of opinion, that the defendants had a right, under their deeds, to erect the structures complained of, in the manner already-described, verdicts were thereupon entered, by consent, for the defendants, subject to the opinion of the whole court. If, in the opinion of the court, the defendants had the right in question, judgments are to be rendered on the verdicts; otherwise new trials are to be ordered.</p>

<p>In an action for goods sold and delivered, an admission by the defendant, that ne purchased and received the goods in question, to be paid for, not in money, but in specific articles, is not sufficient to entitle him to open and close, under the forty-first rule of the court of common pleas.</p> <p>An action for goods sold and delivered having been referred under the statute (Rev. Sts. c. 96, § 25) to an auditor, who reported, that it was objected that the goods were sold on barter account, and to be paid for in printer’s ink,—that the objection was sustained only as to a part of tlie goods, which were paid for accordingly, by way of set-off, — and that the plaintiff was entitled to recover for the balance of the account;—it was held, that the auditor had not therein exceeded his authority.</p>

<p>Where one, who is restrained of his liberty against his will, and without legal process, as an insane person, employs counsel to prosecute a writ of habeas corpus, on his behalf, for the purpose of investigating the grounds and circumstances of the restraint, the counsel so employed will be entitled to recover a reasonable compensation for his services, provided they be rendered in good faith, and upon due inquiry into the causes of the confinement, and the condition of the party be such, that an investigation before a judicial tribunal is proper.</p>

This was an action by the plaintiff, as the indorsee, against the defendant, as the maker, of a promissory note, dated August 14th, 1843, for thirty dollars and thirty-three cents, payable in three months to the order of Lyman Wood, and indorsed by him.

<p>? ** Rev. Sts. c. 126, $§ 39 to 45, enumerate all the different classes of malicious mischief to property, which are made punishable by law, and provide a specific punishment for each class: § 39 further provides, that, for all offences of the same kind, eommitted “ in any manner, or by any means, not particularly described or mentioned ” in the same chapter, the punishment shall he “imprisonment in the state prison not more than five years, or by fine,” &c.: The subsequent statuteLof 1846, c. 52, § 1, provides, that, in all cases of malicious mischief, committed “ in any manner, or by any means, not particularly described or mentioned in the one hundred and twenty-sixth chapter of the Rev. Sts.,” the punishment shall be “by imprisonment in the county jail or house of correction, not more thjin thirty days, or by fine,” &c.: It was held, that the negative words, in the last mentioned statute, limiting the punishment, operated to repeal so much of the Rev. Sts. c, 126, § 39, as relates to the punishment of the offences therein described in the general terms above mentioned.</p> <p>A plaintiff in error, who is discharged on the writ, is entitled to his costs for travel, as an item of the legal costs, to be “borne by the commonwealth,” notwithstanding, that, during the pendency of the writ of error, he is imprisoned in a house 'of correction under the sentence against him.</p>

This was an action on the case, against the defendants, foi negligence in running their vessel against a building belonging to the plaintiff, and injuring tne same. The trial was before Wells, C. J., in the court of common pleas.

<p>This was a petition, filed at the November term, 1846, for a writ of mandamus, to be issued to the chief justice of the court of common pleas, requiring him to allow and sign bills of exceptions, in the cases above entitled, under the following circumstances.</p> <p>The plaintiff brought actions of debt, against the defendants, in the court of common pleas, to recover penalties for selling adulterated oil, in violation of the provisions of the Rev. Sts. c. 28, §<§> 169 to 173. The defendants pleaded the general issue, which was joined, and, by order of the court, the two cases were tried together and submitted to the same jury. On the trial, which took place before Wells, C. J., it was proved, that the defendants were partners in trade; but it was contended, on their behalf, that the evidence in each action was insufficient to charge more than one of them; and their counsel, in his opening, stated it as a rale of law, that, unless the evidence was sufficient to prove the liability of both defendants, no action could be maintained against either This position was not controverted by the counsel for the plaintiff, and \t as adopted by the judge in his charge to the jury, as a correct statement of the rule of law. The jury returned verdicts for the defendants in both actions.</p> <p>The plaintiff then moved the court for a new trial, on the ground, that the rule of law as above stated was incorrect; and, consequently, that the instructions to the jury were erroneous. This motion was argued by counsel, on both sides, and was overruled by the court. The plaintiff, thereupon, filed exceptions to the instructions; but the judge, before whom the proceedings took place, being of opinion, that, under the circumstances stated, it was not competent for the plaintiff to allege exceptions, refused to allow the same. The trial, the hearing of the motion for a new trial, and the filing of the exceptions, were all at the same term of the court.</p> <p>The defendants filed an answer in writing to the plaintiff’s petition, in which they objected to the granting of the prayer thereof, on the several grounds taken by their counsel in argument.</p> <p>The case was argued in writing, at a former term, by W. Hilliard, for the petitioner, and by W. Brigham, for the respondents.</p> <p>On the part of the respondents, it was contended:</p> <p>1. That, inasmuch as the rule of law, stated by the defendants’ counsel, and laid down by the court, was not objected to but sanctioned by the plaintiff, the latter was not aggrieved thereby; and, further, that by not making his objection at the time, the plaintiff had lost his right to except. Jones v. The Ins. Co. of N. A., 1 Bin. 38; Leach v. Woods, 14 Pick. 461.</p> <p>2. That, by filing a motion for a new trial, the plaintiff had thereby submitted the whole matter, finally and exclusively, to the discretion of the court of common pleas, and could not afterwards revise the decision thereon, by means of .a bill of exceptions. Chase v. Blackstone Canal Co., 10 Pick. 244; Gray v. Bridge, 11 Pick. 189; Morse, Pet'r., 18 Pick. 443.</p> <p>3. That the instruction complained of was correct. Hill v Davis, 4 Mass. 137; Boutelle v. Nourse, 4 Mass. 431; Burnham v. Webster, 5 Mass. 266, 270.</p> <p>. 4. That, by the Rev. Sts. c. 82, 12 and 14, exceptions must be taken in the court of common pleas, and allowed, at the term when the trial takes place, and must lie entered at the next following term of this court; and, inasmuch as the term of this court, next following the proceedings in the common pleas, had long since passed, the writ prayed for, if now granted, would be wholly unavailing.</p> <p>It was argued for the petitioner:</p> <p>1. That there was nothing in the circumstances of the case to justify the court below in refusing to allow the exceptions. It is .the duty of the court to instruct the jury correctly, upon every material point of law arising on the trial; and exceptions may be taken to incorrect instructions, even though counsel, believing, at the time, that the instructions are proper, make no objection to them. Exceptions may be alleged, for the first time, after the verdict is returned. Buckland v. Charlemont, 3 Pick. 173. It is no objection to the right to except, that the ground of exception has previously been made the ground of a motion for a new trial, which has been overruled; the party excepting is none the less “ aggrieved by the opinion, direction, or judgment of the court of common pleas,” within the meaning of the statute. There is no discretion in the court below to allow or disallow a bill of exceptions; the statute being express, that if “ found conformable to the truth,” the exceptions shall be allowed and signed. Rev. Sts. c. 82, <§> 12.</p> <p>2. The instruction objected to was erroneous. Wortley v. Herpingham, Cro. Eliz. 766; Coppin v. Carter, 1 T. R. 462; Bastard v. Hancock, Carth. 361; Hardyman v. Whitaker, 2 East, 573, note; Powers v. Spear, 3 N. H. 35. The cases of Hill v. Davis, and Burnham v. Webster, cited for the defendants, are distinguishable from the present.</p> <p>3. The court has authority to >ssue a writ of mandamus, in this case. Rev. Sts. c. 81, <§> 5. And it is the appropriate remedy. Crane, Ex parte, 5 Peters, 190; People v. Judges of Washington County, 1 Caines, 511.</p> <p>4. The suggestion, that judgments have already been entered in the actions referred to, is not true; if it were, the fact would be immaterial, inasmuch as if the exceptions had been allowed, judgment would notwithstanding be rendered, though no execution could be issued thereon. Rev. Sts. c. 82, «§» 13.</p>

<p>A disseizin of flats may be made by an appropriate occupation thereof for that purpose, as by entering upon and filling them up, or by building a wharf and using the flats adjoining for laying vessels at the same; in which cases, the occupation of the land, or the use of the flats, if exclusive, constitutes a disseizin of the proprietor : But passing with vessels over flats, and anchoring on them, or using them for the purpose of access to and egress from a wharf with vessels, being a usage of common right provided for in the ordinance of 1641, is not inconsistent with the right of the proprietor to a fee in such flats, and constitutes neither a disseizin nor a trespass.</p> <p>Where it appeared that the tenant in a real action, who had acquired a title to a wharf by disseizin, had also exclusively occupied the flats at the end of the same, to the distance of eighty feet, for the purpose of laying vessels at such end. and had used the flats in front of the wharf, beyond the distance of eighty feet, for the purpose of access to and egress from the wharf with vessels, it was held, that the exclusive occupation to the distance of eighty feet was a disseizin of so much, but that the occupation beyond that distance was not a disseizin of the residue, nnd that the former did not extend to and create a disseizin of the latter.</p>

<p>This was a bill in equity, brought by Charles Scudder, Thomas F. Cordis and David W. Horton, a firm doing business under the name and style of Scudder, Cordis and company, in behalf of themselves and all other creditors of Samuel Crocker and Charles Richmond, late partners in business under the firm and style of Crocker and Richmond, against the said Samuel Crocker and Charles Richmoi 1, and certain persons, their assignees and trustees, namely, Francis Baylies, William A. F. Sproat, George A. Crocker, Nathaniel Grand ell,-(since deceased,) Charles J. Holmes, and Lovett Morse.</p> <p>The subject of the bill, and the subsequent proceedings thereon, which gave rise to the questions before the court, will appear from the following statement.</p> <p>The first named defendants, Samuel Crocker and Charles Richmond, for some time previous to the 12th of April, 1837, had been engaged in extensive business in Taunton, as partners, under the firm and style of Crocker and Richmond. Finding themselves embarrassed and unable to meet the demands against them, they, on that day, undertook to make an assignment of all their property, both joint and individual, for the benefit of their creditors, according to the. provisions of the act of 1836, c. 238, “ to regulate the assignment and distribution of the property of insolvent debtors.” In order to effect this object, an indenture of three parts, by and between Crocker and Richmond, of the first part, three of the other defendants, Baylies, Sproat and George A. Crocker, of the second part, and the various persons, creditors of Crocker and Richmond, who should become parties thereto, of the third part, was executed by the parties of the first and second part, on the 12th of April, 1837.</p> <p>This indenture purported to convey and assign all the property and estate, of every description, (a schedule of which was to be afterwards made out,) belonging to Crocker and Richmond, either as partners or as individuals, to the assignees, Baylies, Sproat and Crocker, in trust, to be sold and disposed of, and the proceeds thereof, after payment of the expenses, and a “just compensation to the trustees, for their services and responsibility in the premises,” to be distributed among the creditors of the assignors. The clause relating to the distribution was in the following terms:</p> <p>“The residue, &c., the said party of the second part shall pay and legally distribute to and among all the creditors of the said firm of Crocker and Richmond, and Samuel Crocker and Charles Richmond, and all who may become their creditors, or the creditors of either of them, by reason of any now existing note, acceptance, indorsement, or liability for them, and who shall become parties to this instrument, in the proportion of their just claims and demands against the said firm of Crocker and Richmond, or against the said Samuel Croo reí or Charles Richmond.”</p> <p>This instrument was not executed by any of the creditors of Crocker and Richmond, and nothing was ever done under it by the trustees; but the property covered by it remained in the hands of the assignors, and under their control and management, as before.</p> <p>At the same time with this assignment, another firm established in Taunton, under the name and style of Horatio Leonard and company, of which Crocker and Richmond were members, also made a similar assignment, for the benefit of creditors, to the same trustees. Subsequently, the members of the firm of Horatio Leonard and company were incorporated as the Taunton Iron Company, and in that character became the purchasers of the assets, under an obligation to pay the debts, of Horatio Leonard and company, as will be more fully stated in another part of the case.</p> <p>This continued to be the situation of the affairs of Crocker and Richmond, until the 10th of January, 1838, when they addressed a circular letter to their creditors, making certain statements and propositions, relative to their affairs and to the payment of their debts. In this paper, Crocker and Richmond represented to their creditors, that, in consequence of the general depression of business then prevailing, which rendered the collection of debts difficult, and the disposition of their property impracticable, except at ruinous prices, they had been unable to liquidate their debts and resume business as they had expected. They proposed to their creditors, therefore, to allow them further time for payment, by receiving their notes, payable by equal instalments in one, two and three-years, with interest annually, for all debts, which, with the interest thereon, on the 1st of July then next, should exceed $500, and for all debts which should then fall short of that sum, notes payable in like manner in three, six and nine months. To secure the ultimate payment of the notes thus to be given, which they estimated would amount to $380,000, they proposed to place in the hands of trustees certain enumerated articles of property, estimated at $665,878-75, and to retain in their own hands, relieved from the incumbrance of the assignment above mentioned, and as a capital for going on with their business, and meeting their engagements under this arrangement, certain other property estimated at $304,724-48.</p> <p>These propositions being generally acceded to by the creditors, the arrangement proposed was carried into effect by means of an instrument dated July 1st, 1838, and executed by most of the creditors between that day and the 22d of March following, and a deed of the latter date from Crocker and Richmond to Baylies and Sproat, two of the former trustees, and Nathaniel Crandell, one of the defendants, a? trustees.</p> <p>By the first named instrument, the creditors, after a recita of the propositions of Crocker and Richmond and their acceptance thereof, fully and unconditionally discharged and exonerated the assignees under the indenture of April 12th, 1837, from all liability to them as such, and authorized, constituted and appointed Baylies, Sproat and Crandell (provided Crocker and Richmond should consent and unite therein), to act as trustees to receive and hold the property proposed by Crocker and Richmond to be placed in the hands of trustees for the benefit of their creditors. The instrument then proceeded to enumerate the several items of property alluded to, together with the estimated value thereof, and concluded in these terms:</p> <p>“ That, in case the said Crocker and Richmond should fail to pay their several debts in the manner proposed, the said property may be sold, and the proceeds of the sale applied to that purpose, giving them, the said trustees, full authority to do the same, and to make and execute all the legal and necessary instruments to constitute them trustees as aforesaid, and to enable them to execute the said trusts, provided all the creditors, whose claims shall exceed $500, shall become parties to this instrument.”</p> <p>By the deed from Crocker and Richmond to Baylies, Sproat and Crandell, dated March 22d, 1839, the grantors conveyed alt and singular the property mentioned in the instrument above described, (with one or two exceptions,) to the grantees therein named, and the survivors or survivor of them, to be held in trust for the purposes of the agreement between Crocker and Richmond and their creditors, recited in the said instrument, namely: “ for securing the payment of the several notes of hand, which they should give in pursuance of said agreement, payable in equal sums for all debts, obligations, and demands, exceeding five hundred dollars, in one, two and three years, from the first day of July now last past, with interest, and for all debts, obligations and demands of a less amount than five hundred dollars, their notes payable in . equal sums, in three, six and nine months from the said first day of July, and interest.”</p> <p>This deed contained and concluded with the following clause:</p> <p>“Now, therefore, if we, the said Samuel Crocker and Charles Richmond, our heirs, executors or administrators, shall well and truly pay to our several creditors the full and just amount of their debts, in the manner and on the days above mentioned, and otherwise faithfully comply with the terms of our several agreements, .as above mentioned, and pay to them, the said trustees, their survivors or survivor, as aforesaid, a just and reasonable compensation for their services and expenditures, in executing said trust, then and in that case this deed to be void, otherwise to remain in full force and virtue.”</p> <p>On the day of the execution of this deed, the grantees therein, Baylies, Sproat and Crandell, signed a paper certi ■ fying to the creditors, that all the real and personal estate (enumerating the same), which Crocker and Richmond had agreed to convey for the benefit of their creditors, had been conveyed to, and placed in the hands of, the grantees.</p> <p>In pursuance of the arrangement thus entered into, Crocker and Richmond effected a settlement with the most of their creditors whose demands exceeded $500, by giving their • notes therefor, dated July 1st, 1838, and payable in one, two and three years, with interest annually. No notes appear to have been given in settlement of the demands of $ 500, and under, as was also stipulated in the agreement.</p> <p>.. The trustees held the property thus conveyed to them, without making any sale or other disposition of any part thereof, until a short time previous to the 1st of July, 1839, when the first year’s notes, or the first instalment notes, as they were called, became due. When the time for this payment was approaching, Crocker and Richmond applied to the trustees to release to them a part of the property in their hands, in order to enable the former to meet the payment of this instalment. The trustees acceded to the request, and accordingly released to Crocker and Richmond eighty-one shares in the stock of the Taunton Branch Railroad Company, valued at $7614, and sixty shares in the stock of the Taunton Iron Company, valued at $60,000, with the proceeds of which and funds of their own, Crocker and Richmond paid the first year’s notes amounting to $100,000, and upwards ; being all the notes then due, with the exception of four, which were afterwards paid by the trustees, but, for the non-payment of which by Crocker and Richmond, there did not appear to be any particular reason, other than the accidental neglect or delay of the creditors in demanding payment. This relinquishment was made by the trustees, upon the understanding that Crocker and Richmond should place in their hands evidence that they had paid notes, which had been given according to the terms of the trust deed, to an amount equal to the value of the property so released.</p> <p>No further sale or disposition of the property was made by the trustees, until February, 1841, from which time until the close of the year 1843, sales were made to about the amount of $20,000. The residue of the property, remaining in their hands, was sold by the trustees under a decree of this court, made in the present cause on the 18th of August, 1843, and the proceeds thereof were paid into the hands of the clerk.</p> <p>On- the 1st of April, 1841, Crocker and Richmond made a further deed to Baylies, Sproat and Crandell, by which they confirmed their former conveyance of March 22d, 1839, and explained and enlarged the powers thereby conferred.</p> <p>On the 7th of December, 1841, certain creditors of Crocker and Richmond made an application to the judge of probate for the county of Bristol, praying that proceedings in insolvency might be instituted against them. The application was allowed by the judge, and a warrant was accordingly issued on the same day, upon which possession was taken by a messenger of all the property of the debtors, both partnership and individual. A meeting of the creditors was subsequently held, at which the defendants, Charles J. Holmes and Lovett Morse, were chosen assignees, and the judge of probate thereupon conveyed to them all the property of the insolvents. In pursuance of these proceedings, Crocker and Richmond received certificates of discharge from all their debts, partnership as well as individual, on the 23d of February, 1843. Those of the creditors, who proved their demands against Crocker, were paid thereon a dividend of twenty per cent.</p> <p>The bill in this cause was filed on the 4th of April, 1842. As originally drawn, it prayed for an account of the property, which was assigned by the indenture of April 12th, 1837, and a distribution thereof to and among the creditors of Crocker and Richmond, according to the provisions of the act of 1836, c. 238. The defendants filed answers setting forth, in substance, the facts already stated. The plaintiffs then amended the bill, so as to present their claim to an account and distribution, in the alternative, namely, either under the indenture of April 12th, 1837, or under the arrangement which was completed by the deed of March 22d, 1839, according as the court should adjudge them to be entitled.</p> <p>The amended bill was demurred to by George A. Crocker, for multifariousness; and Baylies and Sproat moved, that the plaintiffs should be required to elect on which ground they would proceed, namely, on the indenture of April 12th, 1837, or the arrangement of March 22d, 1839. The court overruled the demurrer, and disallowed the motion.^; and the defendants thereupon answered the bill. In their answers, the defendants set forth the transactions between Crocker and Richmond, and their assignees and trustees, and the proceedings of the latter relative to the property in their hands, together with their accounts of sales of the same, and of their disbursements, expenses and commissions.</p> <p>At the November term, 1844, by the consent and agreement of the parties, the court passed a decretal order in the cause, the material parts of which, necessary to be here stated, are as follows:</p> <p>It was, in the first place, ordered, adjudged and decreed thereby, that the indenture of April 12th, 1837, had become and was inoperative and no longer in force; that the deed of March 22d, 1839, was valid and effectual to convey the property therein mentioned, to the parties and for the purposes stated in the same, and that the trustees were bound to account for such property, in this suit, to the plaintiffs and all other persons and corporations, who should become parties thereto, and who were creditors of Crocker and Richmond on the 12th of April, 1837; and that the deed of April 1st, 1841, was valid and confirmatory of the deed of March 22d, 1839.</p> <p>It was then further ordered and decreed thereby, that the cause, with the bill, answers, orders and proofs therein, be referred to George S. Hillard, Esquire, one of the masters m chancery for the county of Suffolk :</p> <p>1. To ascertain and report upon the state and amount of the funds, deposited in the hands of the clerk, by order of the court, in this cause, and who is entitled to the same.</p> <p>2. To ascertain and report what has become of the property conveyed by the deed of March 22d, 1839; whether the same has been accounted for according to the provisions of the deed, or of any order of the court; and, if any part of the same remain unaccounted for, what it is, why it has not been disposed of, and who is accountable therefor; whether the trustees have diligently and faithfully performed the duties undertaken by them in accepting the trust; and what sum, if any, should be allowed them for their services and disbursements in the execution thereof.</p> <p>3. To ascertain and report what sums were due from the defendants, Crocker and Richmond, to the plaintiffs in thi? suit, on account of any claim or claims existing on the 12th of April, 1837; and to give notice, as specified in the order, to all persons and corporations, who were creditors of Crocker and Richmond, on account of any claim existing on the 12th of April, 1837, to come before the master, and prove their demands, on or before a day to be fixed by him, on pain, if they should neglect to do so, of being wholly excluded from participating in the trust fund created by the deed of March 22d, 1839.</p> <p>4. To ascertain and report the names and give a description of all the creditors of Crocker and Richmond, who should come in and prove their claims, as aforesaid, and the amount due each, respectively, on account of such claims as existed on the 12th of April, 1837, “though the evidence of such claim or claims may have been changed since ” that day.</p> <p>5. To inquire and report whether any and which of the creditors are secured by a pledge or mortgage, and, if so, what is the value of the security in each case; to deduct such value from the amount of the debt so secured, and to report the balance only as a claim against the fund.</p> <p>6. To inquire and report whether any and what creditors have received, from the property conveyed in trust by the deed of March 22d, 1839, more than one third of the amount of their several demands, as the same existed on the 12th of April, 1837, (that being the proportion supposed to have been subsequently paid to the creditors according to the arrangement completed by the deed aforesaid); such excess to be considered as a payment, pro tanto, of any dividends, to which the creditors receiving the same might otherwise be entitled.</p> <p>In pursuance of this order, the master proceeded to the discharge of his duties under the same, and passed upon the claims of a great number of creditors, which were offered for proof before him, and upon the proceedings and accounts of the trustees, and made his report upon the several matters so submitted to him, on the 19th of June, 1847. Several of the claims made before the master, and adjudicated upon by him, having been contested at the hearing, on various grounds, the master, at the request of the parties, inserted a statement of the facts relating to such contested claims, together with his decision thereon, in his report.</p> <p>The plaintiffs, for themselves and the creditors generally, filed exceptions to the report, on the ground of the allowance by the master of the claims of certain creditors therein specified, and of the allowance of certain particulars in the accounts and proceedings of the trustees; certain creditors, whose claims were allowed in part, filed exceptions because their claims were not allowed in full; and the trustees filed exceptions, on the ground, that certain charges contained in their accounts against the fund were disallowed by the master.</p> <p>The various claims and accounts, which were the subjects of controversy before the master, and of the exceptions taken to his report, together with the facts relating thereto, so far as the same are material to be here stated, and as they appear from the master’s report, and other documents in the cause, are as follows.</p> <p>The assignees of the Taunton Iron Company presented an account, consisting of a great number and variety of particulars, most of which were proved before the master and allowed by him against the fund. Some of the claims offered for proof by the same claimants were disallowed in part and others rejected altogether.</p> <p>In reference to these claims, generally, it appeared before the master, that, previous to the 12th rf April, 1837, the two commercial houses of Crocker and Richmond, and Horatio Leonard and company, the latter engaged in the iron business as manufacturers and dealers, and the former in general commerce, were established and doing business in Taunton ; that Crocker and Richmond were at the same time partners in the firm of Horatio Leonard and company, the other members of which were Horatio Leonard, George Leonard, Charles Robinson, I. Robinson and E. Robinson; that, on the 12th of April, 1837, both these firms failed, and assigned their property for the benefit of creditors, pursuant, to the act of 1836, c. 238, to the same assignees, Bay lies, Sproat and George A. Crocker, three of the defendants in this cause; that, on the 7th of March, 1837, the members of the firm of Horatio Leonard and company were incorporated as the Taunton Iron Company, which was duly organized on the 27th of December, 1837; that, on the 2d of January, 1838, the Taunton Iron Company purchased of the assignees of Horatio Leonard and company all the assets of that firm, and, at the same time, entered into a contract with the assignees to pay all then-debts, which contract had been performed, and the debts paid accordingly. The whole number of shares in the Taunton Iron Company was three hundred, two hundred of which were the property of Crocker and Richmond.</p> <p>The master, in his report, distributed the several claims offered for proof by the assignees of the Taunton Iron Company into five classes.</p> <p>1. The first class consisted of payments made by the Taunton Iron Company, subsequent to the 12th of April, 1837, of negotiable securities originally signed by Crocker and Richmond, and indorsed by Horatio Leonard and company, or vice versa; which indorsements or signatures were made by Horatio Leonard and company on account of Crocker and Richmond, and for their benefit; and the original securities represented claims which would have been provable against the fund.</p> <p>It appeared, that, in various instances, the notes and acceptances of the Taunton Iron Company were used, in the manner and under the circumstances mentioned in relation to the next class of claims, to take up the securities thus indorsed by Horatio Leonard and company; that the amounts of such securities, when ultimately paid by the Taunton Iron Company, were entered to the credit thereof, and to the debit of Crocker and Richmond,-in the books of the parties, respectively; that, in several instances, the original securities thus taken up were produced by the assignees of the Taunton Iron Company, from the files of Crocker and Richmond ; that, in one or more cases, the notes and acceptances of the Taunton Iron Company, which had been used to take up the original securities indorsed by Horatio Leonard and company, had since been paid by the assignees of the Taunton Iron Company ; and that, in making such payments, a compromise had been claimed and submitted to by the holders, on the ground of a doubt, whether the notes and acceptances of the Taunton Iron Company, thus used, were binding on that corporation.</p> <p>Upon all the facts, relating to this class of claims, the master was of opinion, that Horatio Leonard and company were originally sureties of Crocker and Richmond; that the Taunton Iron Company, having taken up the securities so indorsed by Horatio Leonard and company, was entitled to be substituted or subrogated to all the rights of the holders of such securities; and, as the holders thereof would have had a right to prove the same as claims against the fund, that this class of claims ought to be allowed.</p> <p>2. The second class of claims embraced certain payments, made from the funds of the. Taunton Iron Company, to discharge debts due from Crocker and Richmond of a date anterior to April 12th, 1837, and in reference to which the Taunton Iron Company claimed a right of substitution.</p> <p>The material facts, respecting this class of claims, were, that Crocker, of the firm of Crocker and Richmond, was president of the Taunton Iron Company, and, as such, authorized to sign and indorse the paper of the company at his discretion, and that he also had the general management and control of all the aifairs of the company; that Robinson, the treasurer of the Taunton Iron Company, was accustomed to sign the company’s notes, and leave them at the counting room of Crocker and Richmond, and these notes were frequently applied to pay the debts of Crocker and Richmond; that, in such cases, the notes so used were not always credited to the Taunton Iron Company, but, in general, a memorandum was made in the bill book of Crocker and Richmond, that the notes given were the Taunton Iron Company’s, and that Crocker and Richmond must provide for them ; that the same person acted as book-keeper to both Crocker and Richmond, and the Taunton Iron Company, so far as related to that part of the business of the latter, which was transacted at the counting room of the former, and it was only by his evidence, and that of the books of Crocker and Richmond, that the several appropriations in question could be traced: that, upon the books of the Taunton Iron Company, these appropriations were merely debited as charges to Crocker and Richmond, without reference to the appropriation of the several items; that when the notes of the Taunton Iron Company were appropriated in this manner, the fact was generally made known to the treasurer, either at the time, or afterwards; and that such appropriations were made with perfectly good intentions, the firm of Crocker and Richmond being supposed to be solvent. These appropriations were made prior to the early part of the year 1841.</p> <p>The creditors of Crocker and Richmond, whose debts were thus alleged to have been paid by an application of the funds of the Taunton Iron Company, were creditors before the 12th of April, 1837, and their claims were consequently provable against the fund.</p> <p>On the part of the plaintiffs, it was urged, that these transactions constituted a mere loan of money from the Taunton Iron Company to Crocker and Richmond, which created a new debt; that they so appeared on the books of the company ; that it would be unjust to revive old debts which had been extinguished by payment; and that the Taunton Iron Company, in reference to these claims, could only stand on the footing of a general creditor.</p> <p>On the other hand, it was contended, that Crocker and Richmond had used the funds of the Taunton Iron Company, without authority, to pay their own debts, and that in equity they became holders of the paper thus taken up and discharged, in trust, for the Taunton Iron Company, whose funds had been so applied, and that the company had a right to be substituted in the place of the original holders.</p> <p>The master adopted the latter as the most equitable view, and admitted this class of claims.</p> <p>3. The third class consisted of a single item of claim, amounting to $70,879-14.</p> <p>This was the first item on the debit side of the Taunton Iron Company’s account, filed before the master; on which it was entered as a “ balance of account,” under date of April 15th, 1837. The amount was actually due from Crocker and Richmond to Horatio Leonard and company, on the 12th of April, 1837, but the balance was not struck until three days afterwards.</p> <p>It was contended, before the master, that the assignees of Horatio Leonard and company were trustees of the creditors of that firm, and sold their assets on the account and for the benefit of the creditors; that the Taunton Iron Company could have no other claim than that of their assignors, and, consequently, that the claim in question was virtually a claim on behalf of the creditors of Horatio Leonard and company, and must be postponed to the claims of the creditors of Crocker and Richmond.</p> <p>It was further contended, that the Taunton Iron Company had charged this item in account, and that Crocker and Richmond had assented to it, as a debt due to the company from them; and that it consequently became a new debt to the Taunton Iron Company, at the time of the assignment in January, 1838, and that the briginal debt to Horatio Leonard and company was thereby discharged.</p> <p>In proof of this, four several accounts transcribed from the books of the Taunton Iron Company were introduced, showing the transactions between the Taunton Iron Company and Crocker and Richmond, from the 30th of April, 1838, to the 30th of April, 1841, in which this item was the first item of debit; and it was contended, that the first item of credit should be applied in discharge of it.</p> <p>On the other hand, it appeared, that there was no transfer of this item of charge from the books of Horatio Leonard and company to those of the Taunton Iron Company, but that the books of the former were used by the latter, who had no other books; that this charge was upon .these books: at the time of the transfer, and, in copying the entries, this item was included; and that the same person acted as bookkeeper to Horatio Leonard and company and to the Taunton Iron Company.</p> <p>It also appeared, that nearly a year after the account between the parties, which was relied upon, had been running, namely, on the 22d of March, 1839, the Taunton Iron Company became a party to the deed then made by Crocker and Richmond for the benefit of their creditors; and there was no evidence, that the Taunton Iron Company had any other claim of a date prior to the 12th of April, 1837, or that there was any other ground than the item in question for its becoming a party to that instrument. The Taunton Iron Company was also one of the creditors, to whom Crocker and Richmond addressed a circular letter, preliminary to the deed of March 22d, 1839.</p> <p>Upon the facts and evidence above stated, the master admitted this claim.</p> <p>It was further contended, before the master, on behalf oí the plaintiffs, that the Taunton Iron Company had received more than one third of the amount of this item, from the property held in trust, under the deed of March 22d, 1839. The ground, upon which this claim was put, was, that a dividend of two hundred dollars' on a share, on two hundred shares of the capital stock of the Taunton Iron Company, amounting to $40,000, had been credited under date of March 19th, 1844, in the account of the Taunton Iron Company with Crocker and Richmond, rendered on the 30th of April, 1840, and that this dividend, being derived from the property constituting the trust fund, must be regarded as a payment out of the same, and could not be considered as a general credit.</p> <p>It appeared, that sixty of these two hundred shares had been released by the trustees to Crocker am Richmond, previous to March 19th, 1840, the date of the credit, in order to enable them to pay their first year’s notes, which came due on the 1st of July, 1838. The master was of opinion, that it was to be presumed, that these shares had been released in virtue of the condition in the trust deed of March 22d, 1839, in consideration of the payment, by Crocker and Richmond, of so much of their debts, as was equivalent in amount to the value of these shares; and, consequently, that so far as these shares were concerned, there was no payment to the Taunton Iron Company out of the trust fund.</p> <p>As to the dividend on the remaining one hundred and forty shares, the master was of opinion, that the trust deed was to be treated as an equitable mortgage; that the rents and profits of the property thereby conveyed remained subject to the control of the mortgagors, Crocker and Richmond; and, consequently, that the crediting of this dividend was a payment by them on account, and not a payment by the trustees, or out of the trust fund.</p> <p>4. The fourth class comprised a single charge of $8500, of which the Taunton Iron Company claimed payment in full, as a preferred debt. The facts relating to this claim were substantially as follows:</p> <p>On the 2d of November, 1837, Crocker and Richmond were indebted to Otis and Mason of New York, in the sum of $8500, on two acceptances, for which eighty-four shares in the stock of the Taunton Manufacturing Company were pledged -as collateral security; and, at the same time, Willett and company of New York had in their hands a considerable amount of funds belonging to Horatio Leonard and company.</p> <p>At this time, Sproat, one of the assignees of Horatio Leonard and company, and also of Crocker and Richmond, being in New York with Richmond, the latter, with the knowledge and consent of Sproat, took the funds in the hands of Willett and company and applied them to the payment of the debt to Otis and Mason.</p> <p>At the same time, other drafts of equal amount, namely, $8500, were drawn by the assignees of Crocker and Richmond upon Otis and Mason, and were accepted by them; they continuing as before to hold the stock of the Taunton Manufacturing Company as collateral security for their acceptances.</p> <p>It was stated in evidence, by Sproat, that these drafts were discounted, and the proceeds applied, for the benefit of the estate of Crocker and Richmond, in the hands of their assignees, though he was unable to state the particular application. It further appeared, that when the acceptances became due, they were paid by Willard and West, and the shares above mentioned were then transferred to them, as collateral security, by Otis and Mason. This stock was subsequently sold by the surviving partner of Willard and West, in 1842, for about four thousand dollars.</p> <p>The day after the transactions above mentioned at New York, entries thereof were made in the books of the assignees of Crocker and Richmond, and of Horatio Leonard and company, as of a debt from the former to the latter.</p> <p>The object of Sproat, as testified to by him, in thus applying the funds of Horatio Leonard and company, was to prevent a threatened sale of the stock held as collateral security by Otis and Mason; which was considered to be valuable and worth much more than it was pledged for, and which would have been sacrificed if it had then been sold. This stock, in the circular letter of Crocker and Richmond, to their creditors, preliminary to the arrangement of March, 1839, was valued at $ 58,906-25; and in the schedule of property conveyed by the trust deed, it was described as eighty-four shares in the stock of the Taunton Manufacturing Company, “now in the hands and possession of George L. Willard, surviving partner of the late Willard and West, to be transferred to the said trustees, on the adjustment of claims between us, the said Crocker and Richmond, and the late firm of Willard and West.”</p> <p>The master rejected the claim, both as a preferred debt, and as a debt entitled to a dividend.</p> <p>5. The fifth and last class of claims comprised notes of Crocker and Richmond, indorsed by the Taunton Iron Company, given in payment of debts due prior to April 12th, 1837. whicn the assignees of the Taunton Iron Company had paid, and which they then held and produced before the master as vouchers.</p> <p>These claims were admitted.</p> <p>Among the claims, proved before the master by the assignees of the Taunton Iron Company, there were several of which no part had been paid since the 12th of April, 1837; and, in reference to these claims, it was contended by the claimants, that, to the extent of one third part of each of these claims, they were entitled to a preference, in the distribution of the assets, over those creditors, one third part of whose claims had been paid since April 12th, 1837. The master disallowed this claim.</p> <p>William Rotch, Jr., presented a claim, founded on a note of hand, dated July 10th, 1834, and signed by Crocker and Richmond, in their individual names, by which they jointly and severally promised to pay him or his order nine thousand dollars. This note had been renewed by the promisors, by a memorandum thereon in writing, signed by them individually, bearing date the 22d of January, 1840. Payments of principal and interest were indorsed on the same, under dates of July 4th, 1835, July 9th, 1836, and January 10th, 1840; and the claim having been proved against the individual estate of Crocker, on the 31st of December, 1841, a dividend of twenty per cent had been received thereon.</p> <p>The note was oifered to be proved for the balance against the fund in court; and there was evidence before the master, that it was given for a consideration which accrued to the firm, and that it was intended to be, and was in fact, the note of the firm.</p> <p>It appeared, from the indorsements, that no part of the debt had been paid or satisfied since the 12th of April, 1837; and the claimant thereupon contended, that, as to one third part, he was entitled to a preference over such of the other creditors, as had received one third part of their claims, since that time, in virtue of the arrangement of March 22d, 1839.</p> <p>The master allowed the claim as a general one, but rejected the demand of priority.</p> <p>The master was directed by the decretal order, among other things, to inquire and report what had become of the property conveyed to the trustees, by the deed of March 22d, 1839; — whether the trustees had faithfully performed their duty as such ;— and what compensation should be allowed them for their services and disbursements.</p> <p>The proceedings of the trustees, as appearing from their answer to the bill, and the documents appended thereto, are thus stated in substance by the master.</p> <p>By virtue of the arrangement between Crocker and Richmond and their creditors, which was completed by the conveyance of March 22d, 1839, and the receipt or certificate of the same date, already referred to (see page 332), their whole property was divided into two parts. One of these parts, consisting of personal property, of the estimated value of $ 300,000, and upwards, was left in the hands of Crocker and Richmond, as a fund or capital to enable them to continue their business. The remainder of the partnership property, including real estate, stocks, patent rights, &c., of the estimated value of $ 600,000, and upwards, was put into the hands of the trustees, Baylies, Sproat and Crandell, in trust, to secure the payment of such persons as were creditors of Crocker and Richmond, previous to April 12th, 1837, with a condition, which has already been stated at length (see page 332), that the conveyance to the trustees should become void, if the debts of Crocker and Richmond should be paid according to the agreement made by them with their creditors.</p> <p>In pursuance of the arrangement alluded to, a large proportion of the creditors of Crocker and Richmond, who were such on the 12th of April, 1837, and whose debts exceeded $ 500, in amount, gave up their original evidences of debt, and, in place thereof, received Crocker and Richmond’s notes for the amounts severally due them, payable by equal portions in one, two and three years from the 1st of July, 1838. It was a part of the arrangement, that those of the creditors, whose debts did not exceed $500, should receive Crocker and Richmond’s notes therefor, payable in three, six and nine months. No such notes, however, were in fact given; but, in some cases, debts of that description were paid by an arrangement between Crocker and Richmond and the creditors, and many of them remained unpaid.</p> <p>The first year’s notes, given by Crocker and Richmond, as above mentioned, became due on the 1st of July, 1839, and were paid in part, as already stated (page 333), by Crocker and Richmond, out of the proceeds of trust property released to them by the trustees for that purpose.</p> <p>In the course of a month or six weeks after the payment of the first instalment notes, the book-keeper of Crocker and Richmond, with their knowledge and approbation, selected from their files thirty-two of the notes, which had thus been paid, and delivered them to the trustees, by whom they were produced before the master as vouchers for the property released by them. The amount of these notes corresponded very nearly with the estimated value of the property released. In making the selection, it was not attempted to pick out the particular notes, which had been paid by the property released, but only to take an equal amount.</p> <p>Among the notes thus produced by the assignees, as representing the property released, were two, which the Taunton Iron Company alleged to have been paid, in part, from their funds, and on account of which they claimed against the fund in court. These claims of the Taunton Iron Company were included in the second class already considered.</p> <p>There were several creditors of the date of April 12th, 1837, who, for some unexplained reason, had not changed their original securities for new notes payable in one, two and three years, but proved them before the master. In general, creditors of this description did not receive one third of their claims in July, 1839; some had not been paid at all; and others had received small sums or proportions of their claims. No general rule was adopted in regard to the payment of these creditors; there was no apprehension among them, that they should not eventually be paid : some of them had partial security for their debts; and there was a very general expectation, that Crocker and Richmond would work through their difficulties. It did not appear, that Crocker and Richmond were pressed for payment, or that the trustees were called upon, m any case, to make payment of claims not paid by Crocker and Richmond, or that any complaint was made to them of such non-payment, or that they were called upon by an f of the creditors of Crocker and Richmond to take possession and dispose of the trust property, in consequence of the non-payment of any claim by Crocker and Richmond.</p> <p>All the creditors, who did not receive one third of their debts in July, 1839, claimed before the master to have priority to that extent in the distribution of the fund in court; but this claim was rejected by the master.</p> <p>From the payment of the first year’s notes, in July, 1839, nothing transpired in the history of the trust until the 1st of May, 1840. On that day, Crocker and Richmond, feeling that they should not be able to meet their second year’s notes which would become due on the 1st of July following, addressed a printed circular to all their creditors, containing, 1st, a request of further time for reasons stated; 2d, a statement of the trustees, that a sale of the property could not then be made without loss; and, 3d, an answer for the signatures of such of the creditors as should assent to the request. Twenty-three of the creditors signified their assent; nine declined without some further condition; and the residue made no answer. The second year’s notes, due July 1st, 1840, were not paid when due, or at any time afterwards.</p> <p>Before the third year’s notes became due, Crocker and Richmond made an attempt to procure a further extension, which resulted in a proposition made by a committee of the creditors, to extend the time of payment for another year, on certain conditions, one of which was, that all the creditors, who were parties to the trust deed, should become parties to this arrangement. An instrument was prepared accordingly, and executed by many of the creditors, but not by all.</p> <p>In December, 1841, the property of Crocker and Richmond was taken possession of by virtue of a warrant, under the insolvent laws, and was subsequently conveyed to two of the defendants in this suit, Charles Ji Holmes, and Lovett Morse, who were duly chosen assignees.</p> <p>The trustees were directed, by a vote of the creditors, tc take possession of the property in July, 1842; and, from that time, to the time of the rendering of their account, they charged themselves with the proceeds, rent, and income thereof.</p> <p>Upon the facts above stated, the proceedings of the trustees were called in question, and various particulars of their account objected to, on behalf of the plaintiffs.</p> <p>It was contended, that the trustees, by the terms of the conveyance to them of March 22d, 1839, and of their receipt or certificate of the same date, were bound to take possession of every article of the property enumerated in the conveyance, and to account therefor, and that they were estopped to say that they had not received the same, or that no evidence of the title or ownership thereof had come into their hands.</p> <p>It was also contended, that, from the facts as above stated, it appeared, that Crocker and Richmond did not pay the whole amount of the first year’s notes, which became due in July, 1839; that it. thereupon became the duty of the trustees to sell the whole property, and to apply the same to the payment of the debts of Crocker and Richmond; and that in default thereof they were bound to account for the same at its fair market value on the 1st of July, 1839.</p> <p>It was urged, on the other hand, for the trustees, that they had not been guilty of any neglect or omission of duty; that they had never been called upon to reduce into possession the property conveyed to them by the deed of March 22d, 1839; that the paper of the same date, signed by them, was merely a certificate and not a receipt, still less an estoppel; that the condition, on which they were, to take the property into their hands, and dispose of the same, was not broken in July, 1839, nor until July, 1842; and that they were not to be held liable for any depreciation of the property which occurred between those dates.</p> <p>The trustees, in their account, claimed to be exonerated from all liability for certain articles of property, five in number, (as to two of which no question was made in this court,) included in the conveyance and certificate of March 22d, 1839, on the ground, that the same were not delivered to them at the time, and that no evidence of the title or ownership thereof had ever been placed in or come to their hands. The plaintiffs objected to the allowance of the account in reference to these particulars.'</p> <p>1. The first item consisted of eighty-four shares in the capital stock of the Taunton Manufacturing Company, which, at the time of the conveyance, were in the hands of George L. Willard, surviving partner of Willard and West, as collateral security for a debt of §8500, and which were to be transferred to the trustees, on the settlement of the account between Crocker and Richmond and Willard and West. The debt, for which these shares were held, was never paid, and they were sold in 1842 for less than half the amount for which they were pledged.</p> <p>It was in evidence before the master, from a witness who kept the books of the Taunton Manufacturing Company, from 1836 to the failure of the company in 1843, that, although the stock was considered as valuable by Crocker and Richmond, yet, in his opinion, there never was a time subsequent to the 22d of March, 1839, when these shares would have sold for §8500.</p> <p>The master reported, that the trustees were not responsible for these shares.</p> <p>2. The second item consisted of two hundred shares in the capital stock of the Cohannet Bank, which were conveyed by the deed of March 22d, 1839, as “ always subject to the payment of §10,000, to the said bank,” and described in the certificate of the same date, as subject to “ a lien which the bank has of §10,000 included by said company as one of their debts.”</p> <p>In reference to this stock, it appeared, that, on the 5th of April, 1837, Crocker and Richmond, then being the owners of two hundred shares, and, at the same time, indebted to the bank in the sum of §10,000, transferred the shares to Milton Barney, to be held by him as collateral security to the bank, for the payment of the debt. Crocker and Rich mond were also indebted to the bank in a further sum of $2300, for over drafts.</p> <p>At the time of the conveyance, therefore, to the trustees, there was no stock of the bank standing in the names of Crocker and Richmond; but, on the next day afterwards, March 23d, 1839, Barney transferred the shares standing in his name to the bank itself, which continued to hold them as collateral security for the debt of $10,000; and the bank afterwards allowed Crocker and Richmond to have the entire control over the stock, to receive the dividends payable thereon, (which they did for the years 1837, 1838, and 1839,) and to direct all subsequent transfers thereof, subject to the lien of the bank, as fully as if the stock had stood in their own names.</p> <p>The trustees did not interfere, in any manner, to prevent Crocker and Richmond from dealing with these shares as their own; nor did they ever take any measures to reduce the stock into their own possession ; and one of them stated in evidence before the master, that, in his opinion, the trustees could enforce no claim against the stock, because it did not stand in the names of Crocker and Richmond.</p> <p>These two hundred shares were subsequently transferred by the bank, agreeably to the directions of Crocker and Richmond, and the proceeds were appropriated to pay Crocker and Richmond’s debt to the bank,—towards payment of a debt due from them previous' to the I2th of April, 1837, — and to the raising of funds for their use.</p> <p>It was contended, on these facts, that the trustees were responsible for the par value of the stock, deducting the amount for which it was pledged to the bank; but the master decided otherwise, and reported that the trustees were not responsible therefor.</p> <p>3. The third item, from which the trustees claimed to be exonerated, was the interest of Crocker and Richmond in twenty-four shares of the stock of the Weymouth Iron Company, which was specified in the agreement of the creditors contained in the instrument of July 1st, 1838, and in the receipt or certificate of the trustees, dated March 22d, 1839, but not included in the trust deed of that date. In the certificate, it is recited, that the twenty-four shares of the Weymouth Iron Company were to be placed in the hands of the trustees, when the certificates thereof should be issued by the company.</p> <p>In regard to this interest, it appeared, that, before the execution of the conveyance in trust, Crocker and Richmond had subscribed for twenty-four shares in the stock of the Weymouth Iron Company (incorporated March 4th, 1837), and had paid $3600 towards their subscription. The certificates of stock had not been issued when the trust deed was made, and Crocker and Richmond, not wishing to pay any further subscriptions, sold their interest as subscribers to the Taunton Iron Company, who paid the remaining assessments, and credited Crocker and Richmond with the $3600 previously paid by them. The company was successful, and the Taunton Iron Company subsequently sold its interest therein at a small advance.</p> <p>The master was of opinion, and so reported, that the trustees were not responsible for this item.</p> <p>The trustees also claimed an allowance for certain articles of property, included in the conveyance to them, which remained unsold, and which they considered to be of no value.</p> <p>The property óf this description, in reference to which a question was made, consisted of one hundred and twenty shares in the stock of the Bristol Print Works, and one hundred and forty shares in the stock of the Taunton Iron Company, which, the plaintiffs contended, it was the duty of the trustees to have sold in July, 1839, and that having failed to do so, they had been guilty of neglect, and were accordingly bound to account for the property at its fair market value, at that time.</p> <p>The trustees, on the contrary, contended that it was not their duty to sell this property in July, 1839, and that inasmuch as the shares had since become of no value, without any fault of theirs, they should not be held to account therefor.</p> <p>The facts, relating to the allowance claimed by the trustees, on account of these stocks, were as follows :</p> <p>In regard to the shares in the Bristol Print Works, it was in evidence before the master, that they began to depreciate in value from the latter part of the year 1838; that they could not have been sold at all in the year 1839, or at any subsequent period; and that in point of fact the company was insolvent in 1839. The business was afterwards continued by the company, in the hope of retrieving its affairs, but without success; and, in 1841, it had lost its whole capital and was so heavily involved, that an assessment became necessary upon the shareholders, in order to meet the liabilities of the company.</p> <p>The one hundred and forty shares in the Taunton Iron Company, for which the trustees claimed an allowance, were a part of the two hundred included in the trust deed, the remaining sixty having been released or conveyed by the trustees, as already stated, to Crocker and Richmond, in orde to enable them to meet their first year’s notes, in July, 1839 In October, 1842, the Taunton Iron Company became insolrent, and assigned all its property for the benefit of its creditors. The private property of the stockholders had become liable for the debts of the corporation, in consequence of a neglect to comply with the requisitions of the law relating to manufacturing corporations, and there had consequently been no sales of stock for some years before the failure. For these reasons, the stock had no market value, and could not have been sold to any advantage.</p> <p>The master reported, that the trustees were not liable to account further for these shares.</p> <p>The plaintiffs objected to the allowance of the first item of payments and expenses charged in the account of the trustees. This charge was as follows:</p> <p>*'1839. First instalment notes of Crocker and Richmond, taken up by sale of Taunton Railroad and Taunton Iron Company’s stock:</p> <p>“ Amount [of notes] enumerated, . . . $ 67,642-20</p> <p>“ Less paid by Crocker and Richmond, .... 28-20</p> <p>#67,614”</p> <p>This sum corresponded exactly with the amount of the first two items of the sales of the trust estate:</p> <p>“ 81 shares stock in Taunton Branch Railroad Corp., # 7,614</p> <p>“ 60 shares stock in Taunton Iron Co., .... 60,000</p> <p>#67,614”</p> <p>The notes, enumerated and charged as above, were offered before the master as vouchers for the proceeds of the first two items of sales.</p> <p>The plaintiffs objected to this portion of the trustees’ account and contended upon the facts previously stated with reference thereto, that the trustees had no right to release or convey the two items of property above mentioned, but that they should be held responsible therefor, and that the notes produced by the trustees were not in any sense legal vouchers or evidences of payment, to discharge the trustees.</p> <p>The master was of opinion, that these notes were proper vouchers to discharge the trustees from the sales above mentioned, (without reference to the claims of the Taunton Iron Company, on account of two of them, and whether those claims were allowed or not,) and reported accordingly that the trustees should not be held further responsible for the same.</p> <p>The plaintiffs objected to the items of #2182-24 ana # 3670-30, paid to Baylies and Sproat, two of the defendants, respectively, as assignees of Crocker and Richmond, under the indenture of April 12th, 1837, on the ground, that their services as such assignees were a proper subject of charge against Crocker and Richmond only, and not against the trust fund ; that these charges were not a claim provided for by the decretal order; and that if they were a lien on the estate conveyed to the assignees by the indenture of April 13th, 1837, the lien was waived by the release of the property to Crocker and Richmond, in pursuance of the arrangement which was completed by the execution of the trust deed on the 33d of March, 1839.</p> <p>The trustees contended that their claim for services, under the indenture of April 13th, 1837, was paramount to all others; that by the terms of that instrument, the assignees were to be first paid for their services, before any disposition could be made of the proceeds of the estate thereby assigned; and lhat the estate had never been discharged from the lien.</p> <p>The master was of opinion, and reported accordingly, that these charges ought not to be allowed, and that the trustees were bound to account for the sums retained by them on account thereof.</p> <p>The trustees charged for their services, under the trust deed, the sum of 04363-38, being a commission of five per cent on 0 87,315-71, the amount of sales of property made by them, on their own authority, and the further sum of 03076-53, being a commission of five per cent on 0 41,530-57, the amount of sales of property made by them under the order of this court.</p> <p>The plaintiffs objected to these charges as being too large.</p> <p>The master reported, that, at the hearing, no particular evidence was given as to the extent, nature, or difficulty of the duties performed by the trustees; but, it was urged, that, upon the admitted facts in the case, they had entitled themselves to a liberal compensation ; that the amount of property was large, — that their position was one of peculiar delicacy,— that they had employed eight years in the discharge of their duties as trustees, — and that in the course thereof they had been involved in two suits at law and one in equity.</p> <p>The master, being of opinion that the commissions charged were not an unreasonable compensation for the services rendered, allowed the charges in question.</p> <p>The cause was argued, upon the facts and with reference to the questions above presented, as well as others upon which the court did not find it necessary to express any opinion, by R. Fletcher W. R. P. Washburn, for the plaintiffs; by N. Bartlett, for the assignees of the Taunton Iron Company and. William Rotch, Jr.; and by T. G. Coffin, for the trustees.</p>

This was an action on the case, in which the plaintiff alleged that the defendant, without authority from her, made a complaint to a judge of this court, in August, 1845, for the purpose of obtaining a writ of habeas corpus, in her behalf, on the ground, that she was imprisoned and restrained of her liberty; and that a writ of habeas corpus was issued accordingly, and delivered to an officer, by whom the plaintiff was taken into custody, and carried before the judge by whom…

This was a scire facias against the defendant, as the bail of Henry W. Ellsworth, in a suit, on which judgment had been rendered against him by default after an appearance.

<p>An award of arbitrators, appointed by a submission before a justice of the peace, pursuant to the Rev. Sts. c. 114, and returned to the court of common pleas, may be recommitted to the arbitrators, with directions to amend the award, without rehearing the parties on the merits, by certifying whether the arbitrators were all present at the hearing and adjudication.</p>

The defendant, having been convicted in the municipal court of the crime of adultery with one Abby Dow, brought his case to this court upon exceptions taken to the rulings of the judge before whom the trial took place.

<p>The provision of the Rev. Sts. <?. 93, § 14, that when the demandant, in a real ot mixed action, shall die before final judgment, his heir may appear and prosecute the suit, does not extbnd to a devisee of such demandant.</p> <p>It is not erroneous in a judge to decline instructing the jury, in the manner requested by either party, when the instructions prayed for are not founded in the evidence, or are not applicable to the case.</p> <p>The entering upon unenclosed flats, when covered by the tide, and sailing over them with a boat or vessel, for the ordinary purposes of navigation, is not such an open, notorious, exclusive and adverse possession, as is necessary to constitute a disseizin.</p>

This was an action of covenant, submitted to the court upon an agreed statement, from which the following facts appeared. Held: and to Stanley the proportion which the plaintiff had held. The consideration, being $ 2600, was received of the grantees by Roberts. This settlement and conveyance took place at Augusta, in Maine, where the plaintiff resided; but, though notified, he took no part therein.

<p>Where a contract is entered into in this state, and to be performed here, between parties who are then citizens thereof; and the creditor subsequently removes to and becomes a citizen of another state, in pursuance of an intention to do so formed before the making of the contract; such removal and residence will not prevent the debtor’s certificate of discharge, under the insolvent laws, from being a bar to an action on the contract in the courts of this state.</p>

<p>Ancient books, purporting to be the records of the Lower Housatonic Proprietary, produced by the clerk, were held admissible as evidence, without proof of the original and continued organization of the proprietary.</p> <p>Office copies of registered deeds, purporting to have been executed in 1736 and 1742„ are admissible in evidence, without other proof.</p> <p>M. K., in 1736, by a deed, which was absolute upon its face, conveyed an estate to P. L,; who, in 1742, conveyed the same estate to R. K., by a deed, in which it was recited, that R. K. had purchasedM. K.*s right of redemption therein: it was held, that this recital was no ground for presuming that the first deed was a mortgage.</p> <p>B. K. devised to the lawful heirs of his son H. K. all the lands and real estate, situated in the county of Berkshire, which descended to him as the heir at law of his father B. K.: One of the heirs dying and her share descending to her father H. K., he made a conveyance to S. K. in the following terms, namely, “ all right, title, and interest, that I have or ought to have to a tract or parcel of land situated in Cheat Barrington, being the same that was bequeathed by my father B. K., deceased, to my children,It was held that these terms were not sufficient to pass an estate in Sheffield, although B. K. possessed an estate there, which was included in the devise to the children of the grantor.</p>

This was an action on the case, to recover damages for an injury sustained by the plaintiff, while travelling on a highway in Adams, on the 29th of July, 1846. The highway in question was laid out four rods, and the travelled part directed to be made sixteen feet, in width. The trial was before Forbes, J., in the court of common pleas.

<p>The facts, set forth in a creditor’s petition under § 19 of the insolvent law (St. 1838, c. 163), must be proved by competent evidence, before a warrant can be issued thereon; and an affidavit, taken in another state, by which it does not appear, that the adverse party had notice of the taking, or that it was impossible to give him such notice, as required by the Bev. Sts. c. 94, § 33, is not such evidence.</p>

<p>This was an action on the case, to recover damages for an injury sustained by the plaintiff, in consequence of a defect in a bridge in the town of Williamstown. The trial was before Forbes, J., in the court of common pleas.</p> <p>It was in evidence, that the plaintiff was riding over the bridge, in company with two other persons, in a light carriage drawn by two horses ; that when the horses had arrived near the centre of the bridge, it gave way, and the plaintiff was precipitated about fifteen feet down upon the rocks and stones in the stream below, by which he was injured in the cheek or side of the face, and became sore and lame ; and that the plaintiff, though the injury was not very severe, was, by the accident, put in considerable peril.</p> <p>It was contended, for the defendants, that they were not liable in damages for the risk and peril sustained by the plaintiff, but only for the actual damage to his person.</p> <p>It was contended, on the part of the plaintiff, that the life of the plaintiff was put in great jeopardy; that the accident could not have happened in the manner proved, without great terror and mental suffering ; and that the jury, in estimating the damages, had a right to consider not only the injury to the person of the plaintiff, but also his mental anguish, and the risk and peril attending the accident.</p> <p>The presiding judge, after calling the attention of the jury to the provisions of the Rev. Sts. c. 25, § 22, instructed them, that towns are liable, in cases like the present, only so far as they are made liable by the express provision of law; and, that for mere risk and peril, no action can be sustained against them; but, that where an injury to- the person is sustained, the damages are to be commensurate with the injury; and, that if the injury to the person is of such a character, as to be necessarily attended with mental suffering, such suffering is, within the meaning of the statute, a part of the injury to the person, and may be considered in the estimate of damages.</p> <p>The jury thereupon returned a verdict for the plaintiff, and the defendants filed exceptions.</p>

<p>This was an action of trespass, to recover damages for an injury sustained by the plaintiff, from being struck by a ball, thrown by some one of the defendants, who were engaged in a game of wicket.</p> <p>At the trial, which took place in the court of common pleas, before Forbes, J., it appeared, that, on the 8th of April, 1846, the plaintiff was driving with a one horse wagon along a public highway, in the village of Great Barrington, where the defendants and others, to the number of twelve or more, were, at the time, playing a game of wicket; and, while so passing, the plaintiff was struck in the pit of the stomach and much injured by the ball which the players were using.</p> <p>The highway, where the accident occurred, was four rods in width, three of which were occupied by the travelled path, and was very considerably used for the purpose of travel. On the west side of this road, at the place in question, there was a store, and on the east there were several buildings, one of which was a large flouring mill. The defendants had often played ball in the same place before, and one witness said he had seen ball playing there a hundred times.</p> <p>At the time of the accident, Fayar Hollenbeck, one of the defendants, whose part in the game was to catch the ball after it had been struck, and to throw it back to the person whose business it was to roll it, was stationed in a northeasterly direction from the latter, whose station was at one of the wickets. The plaintiff had passed the wicket a little, and was west of a direct line from Hollenbeck to the person at the wicket. At this moment, Hollenbeck threw the ball with an intention to throw it to the person at the wicket; but the ball being- wet, it slipped in his hand, when he was m the act of throwing it, and was thus turned from the intended direction, and struck the plaintiff as already stated.</p> <p>The other defendants were engaged in the game with Hollenbeck, but they had no other connection with him in the act of throwing the ball.</p> <p>The defendants requested, the court to instruct the jury, that if they should be satisfied, that Hollenbeck designed to throw the ball to one of the other players, — that it was thrown with such design and slipped in his hand, — that, by accident, on his part, he hit the plaintiff,—and that the other defendants had nothing to do with the throwing of the ball in this particular instance, although engaged in the general play, — then such other defendants would not be responsible for the injury occasioned by the accident.</p> <p>The presiding judge declined to give these instructions, but instructed the jury as follows: “ That if the deiendants were all engaged in the game of wicket in the public highway, and, if, from the situation of the road, the number of persons passing, or other cause, the game there was of such a character, as to endanger or expose to injury the persons travelling along the road, or their property, and the injury was received by the plaintiff, while travelling along the road, without any fault on his part, the defendants would all be liable in this action; provided the party who threw the ball was acting in the usual manner of persons engaged in the game, although his object was merely to return the ball, and it took a different direction from that intended, by slipping in his hand, and taking a direction towards the plaintiff.”</p>

This was an action on the case, originally brought in the court of common pleas, against the defendant, an attorney of this court, for a fraudulent misrepresentation. The declaration contained two counts.

These were appeals by the defendants, from the decisions of the commissioners of insolvency on the estate of Philo Upson, late of Egremont, deceased, allowing the claims of the plaintiffs. The claims allowed in favor of Ostrom were two promissory notes, payable on demand, dated March 30th, and April 29th, 1840, and signed by Philo Upson.

This was a writ of entry, brought in this court, in the form prescribed in the Rev. Sts. c. 101, §§ 2 and 3, in which the demandant declared on his own seizin, without setting forth the title, under which he claimed. The tenants pleaded the general issue, and the case was tried thereon before Metcalf, J., at the present term.

<p>The will of a married woman, under the statute of 1842, o. 74, is not valid, unless the assent of her husband be given thereto, in writing, and indorsed thereon, during her lifetime.</p>

<p>The defendant, being the holder of a promissory note, signed by William Williams, for ninety-three dollars, payable to the defendant or bearer by the 1st of April, 1841, on which, under date of April 15th, 1841, was indorsed a payment of forty-four dollars, sold and delivered the same to the plaintiff, and, at the same time, gave the plaintiff a writing, signed by himself, of which the following is a copy :</p> <p>“ This certifies, that I have this day sold to J. F. Sanford a note against William Williams, of Egremont, Mass., amounting now to forty-eight dollars ninety cents, (originally ninety-three dollars,) which note I do guaranty to the said Sanford to be perfectly good and collectible.</p> <p>(Signed) Miron Allen.</p> <p>North Kidgeville, August 5th, 1841.”</p> <p>The plaintiff brought this action for a breach of the guaranty, and, on the trial in the court of common pleas, before Forbes, J., introduced evidence to prove that he demanded payment of the note of Williams, within a reasonable time after the 5th of August, 1841; that Williams refused to pay the same ; that he gave the defendant notice of such demand and refusal; that, on the 5th of August, 1841, Williams had not sufficient property to pay the amount due on the note, but had then disposed of his property ; and that he had ever since been entirely unable to pay the note.</p> <p>The defendant contended, that, in order to entitle the plaintiff to maintain this action, he must also prove that he had endeavored to collect the note of Williams by a suit prosecuted to judgment and execution.</p> <p>The judge ruled otherwise, and instructed the jury, that if Williams was insolvent and wholly unable to pay the note, at the date of the guaranty, and had continued to be so ; that if he had no property, out of which an execution could have been satisfied, either wholly or in part; and that a judgment and execution against him would have been of no avail, the plaintiff might recover in this action, without proving the existence of such judgment and execution.</p> <p>The jury rendered a verdict for the plaintiff for the amount due on the note, and the defendant alleged exceptions.</p> <p>B. Palmer, for the defendant, argued, that the concluding words of the guaranty, “ good and collectible,” referred to the ordinary mode and course of collecting debts, and that the plaintiff took upon himself the duty of employing all the usual means for that purpose. Witnesses could not know whether the debt was collectible or not; the only mode of proof was the issuing and service of an execution; and the agreement indicated that the plaintiff was to prosecute the claim by a suit, if necessary.</p> <p>I. Sumner, for the plaintiff, was stopped by the court.</p>

<p>The first of the above named actions was originally commenced by Eliza Ann Hewins, then the widow of Joseph H. Hewins, and is now prosecuted in the joint names of herself and Lockwood Carey, with whom she has since intermarried. It was an action on the case, to recover damages for the loss of the life of the female plaintiff’s late husband, in consequence of the negligence, carelessness, and unskilfulness of the defendants’ servants and agents.</p> <p>On the trial, which took place in the court of common pleas before Wells, C. J., at the October term, 1845, the plaintiff (Eliza Ann Hewins, then sole) offered to prove, among other things, that, on the day of the alleged injury, Hewins was employed by an agent of the defendants, with other laborers, to go on the defendants’ road, southerly of the station at West Stockbridge, as far as the north part of Great Barrington, to shovel snow from the track, in order that the trains might proceed ; that he was employed as a day laborer, and to be paid by the day, and was not constantly employed by the company under any contract; that, on the day referred to, Hewins was engaged to clear snow from the track, until a car should be sent down to bring him and the other laborers back, and was directed to remain at work until he should be thus sent for ; that this arrangement to bring back the laborers by the cars was made, in order that they might have a longer time to work; that, at evening, the cars were sent accordingly, and Hewins, and the other laborers, who were then at work several miles below, were taken on board the cars and brought back to the station at West Stockbridge ; that, when the cars were approaching the station, and making arrangements to run into the place appropriated to them, they were, in consequence of the carelessness and inattention of the switch tender, directed towards and carried to the engine house, the doors of which were closed ; that the cars ran against the doors of the engine house, stove them in pieces, and entered the house ; that the engine was behind the cars, pushing or backing them up on the track and against the doors of the engine house; that the cars were open or freight cars, and Hewins was sitting on the floor of one of them; that the engineer, seeing the danger, directed those in the cars to cleai themselves therefrom; that Hewins, before he could thus clear himself, was thrown from the car in consequence of its striking the door of the engine house ; that, on being thrown off, he fell between the tender and the car, and was run over, and so severely injured and bruised, that he died of his wounds in eighteen or twenty hours afterwards ; that Hew-ins’s death was occasioned solely by the injuries so received ; that he was the husband of the plaintiff, who was poor ; and that, by his death, she was left to provide for herself and the support of three small children.</p> <p>The judge being of opinion, that if the facts stated were proved, tl ey would not entitle the plaintiff to recover, a Verdict was thereupon rendered for the defendants, and the plaintiff filed exceptions.</p>

In this case, which was a proceeding under the authority of the county commissioners for the county of Berkshire, for the assessment by a jury of the damages sustained by the respondent, for land belonging to her which had been taken by the petitioners for the purposes of their road, it appeared, that the warrant was directed to the sheriff of the county of Berkshire or his deputy (the sheriff being appointed therein to preside at the trial), and was executed by the sheriff,…

<p>These were actions of trespass to land, tried before Ward J., in the court of common pleas, and brought into this court by the defendants, against whom verdicts were rendered, upon exceptions to the instructions of the judge. • From the bill of exceptions, the following facts appeared, as the ground of the instructions complained of.</p> <p>One of the defendants, Jonathan C. Stevens, being the owner of the premises, consisting of a house and other buildings, and lands adjoining, and having mortgaged the same to Miles Miner, the plaintiff, previously to the 21st of April, 1843, made a conveyance thereof, by a deed of bargain and sale of that date, containing general covenants of warranty, to Fuller, Dixon and Smith.</p> <p>These grantees, on the 11th of November, 1843, executed a reconveyance of the same premises to Jonathan C. Stevens, which was delivered to him about the time of its date, and remained in his possession without being recorded, until the 21st of December, 1844, when it was redelivered to the grantors, Fuller, Dixon and Smith, who thereupon made a quitclaim deed of the premises to Ensign D. Stevens, another of the defendants.</p> <p>On the 24th of May, 1843, the plaintiff commenced an action for foreclosure, in the court of common pleas, against Jonathan 0. Stevens, the mortgagor, as sole defendant, on which the conditional judgment was obtained at the October term, 1845, and a writ of possession issued March 18th, 1846.</p> <p>It was in evidence, that, at the time of the commencement of the action for foreclosure, and at the time of the service of the writ therein, and also at the time of the service of the writ of possession, Ensign D. Stevens, the grantee above mentioned, was upon the premises, and that when the writ of possession was executed, he claimed and attempted to maintain his right to remain, hut was forcibly removed by the officer.</p> <p>The writ of possession was executed by the officer, by ejecting the defendants from the house and land constituting the premises, and delivering seizin thereof to the plaintiff.</p> <p>The defendants subsequently entered upon the premises, and committed the acts of trespass complained of in these actions, between the 23d of April and the 8th of June, 1846.</p> <p>At the time of the making of the deed from Jonathan C. Stevens to Fuller, Dixon and Smith, Stevens’s property, or some portion of it, was under attachment, and he was much embarrassed and pressed by creditors.</p> <p>The defendants justified the trespasses, Ensign D. Stevens in his own right, and the other defendants as his servants, on the ground, that, at the time of the commencement of the action for foreclosure, Fuller, Dixon and Smith were the owners of the equity of redemption and tenants of the freehold, and that, at the time of the execution of the writ of possession, Ensign D. Stevens, their grantee, had acquired all their rights in and to the premises; and they contended, that the action for foreclosure having been commenced against the mortgagor alone, and not against Fuller, Dixon and Smith, as tenants of the freehold, and the judgment in that action having been rendered against the mortgagor alone, the proceedings, as against Fuller, Dixon and Smith, and Ensign D. Stevens, as their grantee, were void, and that in forcibly removing Ensign D. Stevens from the premises, in the execu tion of the writ if possession, the officer was a trespasser.</p> <p>The defendants objected, that, upon the evidence, as above stated, in substance, these actions could not be maintained; but the judge ruled otherwise, and instructed the jury accordingly, who found the defendants guilty in both actions.</p>

<p>WTiere a party was in the unlawful possession of a farm, lying partly in Massachusetts, and partly in Connecticut, and the owner entered on the Massachusetts side, and demanded possession of the whole, and the other party, being then a short distance on the Connecticut side, and having an ox goad in his hand, thereupon threatened violence to the owner with that weapon, if he did not leave the farm, upon which the owner abandoned his demand of possession; — it was held, that this was a forcible detainer of that part of the farm lying in Massachusetts.</p>

This action was brought to recover the amount of a promissory note signed by the defendants, Henry Williams, Amanda Williams, his wife, (against whom the plaintiff had discontinued), and Mary Robinson. Levi R. Percival, summoned as the trustee, was the executor and trustee under the will of Levi Robinson, the father of Amanda Williams, and of Mary Robinson.

This was a complaint, originally made before a justice of the peace, against the defendant, for selling strong beer contrary to a by-law of the town of Adams. The defendant, being convicted by the justice, appealed to the court of common pleas; and, on the trial in-that court, before Ward, J., requested the judge to direct an acquittal, on the ground, that the by-law was invalid on its face. This direction being refused, and the defendant convicted, he alleged exceptions.

This was an action of trespass to land, tried before Forbes, J., in the court of common pleas.

A complaint was made to Henry L. Dawes, esquire, one oí the justices of the peace for the county of Berkshire, alleging that the defendant, on the day and at the place named therein, “ did presume to be a retailer and seller of wine, brandy, rum and other spiritous liquor, in a less quantity than twenty-eight gallons, and that delivered and carried a-way all at one time, and did then and there sell to one G. M. one pint of' spiritous liquor, the same being spiritous liquor…

The defendant, having been tried and convicted in the court of common pleas, on a complaint originally made and tried before a justice of the peace, charging her with an unlawful sale of spiritous liquor, moved in that court, in arrest of judgment; and, her motion being overruled, she appealed to this court.

<p>The provision of the Rev. Sts. c. 120, § 9, that the time of a party’s absence and residence out of the state shall not be taken as any part of the time limited for the commencement of an action against him, applies to actions which accrued before the revised statutes went into operation, provided the right of action was not then barred.</p>

<p>This was a bill in equity, in which the plaintiffs set forth the following case :</p> <p>On the 20th of October, 1834, Elisha Adams, as principal, and the defendant, Snow, as surety, by their note, promised to pay A. N. Dewey, treasurer of the plaintiffs, or his successor in office, the sum of $329, by the 1st of April then next, with annual interest.</p> <p>On the same day, Adams, by a deed duly executed, which was recorded the next day, made a mortgage of certain real estate to Snow, to secure him against his liability as surety on the note to the plaintiffs, and also to secure the payment of a note from Adams to Snow of $71. The condition of the mortgage was, that Adams should pay the note for $ 329, on which Snow was surety, to the plaintiffs, and the note for $ 71, to Snow. The mortgage was made subject to a prior mortgage to the Massachusetts Hospital Life Insurance Company for $ 900.</p> <p>The plaintiffs alleged, that, by the deed to Snow, he became seized in fee and in mortgage, and in trust for them as holders of Adams’s note, and subject to the equitable lien created by the deed for the payment thereof.</p> <p>On the 11th of July, 1840, Adams released to Snow all his right, &c., in the "premises.</p> <p>The consideration of the note from Adams and Snow to the plaintiffs was a loan of money by the latter to Adams. The note was given to the treasurer for the use and benefit of the plaintiffs, who, at the date thereof, became, ever since had been, and then were the holders of the same. Interest Was paid thereon by Adams to January 1st, 1841. No 'other ■payment had been made; and the principal sum, and interest from that date, were due at the time of filing the bill. Adams had long since died insolvent and intestate, and no administration had ever been taken on his estate.</p> <p>On the 11th of July, 1840, Adams released to Snow all his right, &c., in the premises; and on the 12th of April, 1845, Snow sold and conveyed the premises (subject to the prior mortgage above mentioned) to the other defendant, William E. Austin, for the consideration of §766-85, which sum had been duly paid in money and notes.</p> <p>The plaintiffs alleged, that Austin had notice that the premises were held by Snow in trust for them, and subject to their equitable lien ; and that the lien, which attached to the premises in the hands of Snow, as mortgagee, remained attached thereto in the hands of Austin, as his grantee, with notice.</p> <p>On the 1st of April, 1846, the plaintiffs demanded of Snow such part of the proceeds of the sale of the premises as they claimed to be entitled to; but he refused to deliver the same.</p> <p>The prayer of the hill was, that Snow might be decreed to pay or assign to the plaintiffs, as the equitable owners, the proceeds of the sale to Austin; and that Austin might be decreed to hold the premises as the trustee of the plaintiffs, and subject to their equitable lien, and as security for the payment of their note, and to pay the amount due to Snow for the premises to the plaintiffs, as equitably entitled thereto.</p> <p>The defendant Snow, by'his answer, admitted the making of the note and mortgage, the death, &c., of Adams, the conveyance to Austin, as set forth in the bill, and other allegations in the bill, not hereinafter denied; but he alleged, that, by virtue of the mortgage by Adams to him, he became seized of the premises in fee and in mortgage to his own use, and the use of his heirs and assigns forever, and to the use of no other person whatever, as was apparent from the express language of the deed; and he denied, that he was seized of the premises in trust for the plaintiffs, as the holders of Adams’s note, as set forth in the bill, or that by force of the mortgage, a trust or equitable lien upon the premises was created for the security and payment of the note to the plaintiffs.</p> <p>The defendant further averred, that the plaintiffs made the loan of §329, to Adams, upon the sole security of the note given to their treasurer by Adams and the defendant; that the plaintiffs were no parties to the mortgage, nor was the same made at their request, or for their benefit, or by their procurement, nor were they in any way induced to make the loan in consideration of the making of the mortgage; that Adams, being desirous to borrow the money of the plaintiffs, applied to the defendant to become his surety in the note; that the defendant did agree to become his surety accordingly, upon Adams’s agreement with him to give him a mortgage, to secure the payment of a debt then due from Adams to him of §71, and to indemnify and save him harmless against his liability as surety to the plaintiffs on the note to them of § 329 ; that he had never derived or received any benefit or advantage from the mortgage except as security for the payment of § 71, due to him from Adams; and that neither Adams nor Austin, nor any other person, had paid the defendant any part of the note for §329, and that no proceedings had ever been instituted by the defendant upon the mortgage to enforce the payment of such note.</p> <p>The defendant Snow also alleged, that Adams, on the 27th of March, 1837, (which was previous to his release to Snow,) released the mortgaged premises to Eliada Kingsley and Russell R. Kingsley (who shortly afterwards conveyed his interest to the former), for the consideration of § 300, paid by them, and, at the same time, took from them their bond conditioned to reconvey the premises to him, upon his paying the said sum of $300 and interest within two years, and upon certain other conditions recited in the bond, namely, that Adams should pay them all such sums as they might pay to extinguish previous incumbrances on the premises; that Adams never paid the $ 300 or any part of the same to the said Eliada, nor any sum which had been paid by the latter to extinguish prior incumbrances; that, on the 11th of April, 1840, the said Eliada mortgaged the premises to the defendant and one Kendall Baird, as security to indemnify them against their liability as sureties on a note to the Housatonic Bank, for $475, of which the defendant was afterwards compelled to pay $150-66, which had not been repaid, but, with the interest thereon, still remained due to the defendant, and, for which, (the said Eliada having since died wholly insolvent), the defendant had no security but the said mortgage.</p> <p>The defendant Snow further alleged, that, after the making of the last mentioned mortgage, the said Eliada released his interest in the premises to one Huldah Lester, for a valuable consideration, by a deed xvhich was executed previously to the deed from the defendant Snow to the defendant Austin; that the right in equity of Adams to redeem the premises was seized and sold on execution in June, 1840, by Jabín B. Williams, who, on the 29th of August in the same year, by his deed of release, conveyed to the defendant all the right acquired by him in virtue of the sale on execution; that Adams was a poor man and remained in possession of the premises to his death in March, 1845, without objection on the part of the plaintiffs, or of any one else, and without the payment of more than a very small sum as rent; that, on the 1st of April, 1845, the defendant Snow conveyed the premises to the other defendant Austin, by a deed of warranty-, subject to the mortgage to the Massachusetts Hospital Life Insurance Company; that the farm, of which the premises consisted, was then valued at $1700, and the amount due on the said mortgage being $933, abalance was left of $767, for which the said Austin gave his notes, which the defendant Snow then held ; that the defendant Snow claimed to retain to his own use the sum due him on the mortgage given by said Adams and interest, together with the interest paid by him on the mortgage to the Hospital Life Insurance Company, with interest on the same, and the taxes on the premises; and that the said Eliada Kingsley, after the taking of his mortgage from Adams, paid sundry sums of money on the mortgage to the insurance company, and also paid the interest for one year, from April 1st, 1836, to April 1st, 1837, on Adams’s note to the plaintiffs.</p> <p>The defendant Snow further averred, that, at the time of his conveyance to the other defendant, and long before, he had ceased to be liable to pay the note signed by him as surety for Adams to the treasurer of the plaintiffs, and the recovery thereof had been barred by the statute of limitations, and, that having held the mortgage simply as surety (except as to his own debt of $71), he supposed and believed, and still believed, that he had no claim or right by virtue thereof, and that the premises would be held by virtue of the subsequent deeds, subject to the mortgage to the Life Insurance Company, and to the debt to himself of $71,- and that the plaintiffs, in his belief, had knowledge of such subsequent conveyances, and never pretended to have any claim on the premises, or that the defendant held the same in trust for them, until long after the conveyance from him to Austin.</p> <p>This defendant also alleged, that, out of the purchase money of the premises, he ought to be paid his own debt, and all sums which he had paid,, as before stated, together with the sum paid by him as the consideration of the deed of release from Williams to him, and the sums paid by Kingsley, deducting therefrom what the defendant had received as rent.</p> <p>The defendant further answered, that neither Kingsley nor Lester had any knowledge that the plaintiffs claimed or pretended that he held the mortgage in trust for them, and they had and claimed title under the mortgage to Eliada and Russell Kingsley; that if any balance should remain in the hands of the defendant, after payment of the claims above mentioned, it ought in equity to be paid to the said Lester; and that the defendant made the deed to Austin, expecting to pay such balance to her, and she expecting to receive it.</p> <p>The defendant denied, that he gave any notice to Austin, and alleged that he had no knowledge or belief that Austin, at or before the conveyance to him, had any notice, that he, the defendant Snow, held the premises in trust for the plaintiffs.</p> <p>He also alleged, further, that prior to making the conveyance to Austin, he had repeatedly offered to convey to the plaintiffs all his title in the premises, provided the plaintiffs would pay his claims, and make a deduction of fifty dollars from their demand; which offer was rejected by the plaintiffs.</p> <p>The defendant, in conclusion, denied that there was any trust created in favor of the plaintiffs, or any of which the court had jurisdiction; that if the court should decide that there was a trust, it was one which ought not to be enforced; but, that if enforced, all sums due the defendant for his debt of $71, — for payment of interest to the Life Insurance Company, — all sums paid as the consideration of the release to him,—the amount paid by him as surety for Kingsley to the Housatonic Bank, — the amount paid by Kingsley for interest,— together with a reasonable compensation for his services as trustee, and for answering to this suit, — should be deducted out of the purchase money, and the balance only, if any, paid to the plaintiffs.</p> <p>The defendant Austin, in his answer, admitting the conveyance by Snow to him, averred that the same was made subject to the mortgage already mentioned to the Massachusetts Hospital Life Insurance Company for the sum of $ 933, which this defendant assumed to pay, as a part of the consideration for the purchase; that for the balance, being $ 767 he gave his notes on interest to Snow, on which only about $20 had been paid; that he took" the conveyance in the belief that Snow was the lawful owner of the premises, and had good right to sell and convey the same ; that he had no notice that Snow held the premises in trust for the plaintiffs, or that there were any liens or incumbrances on the same except the mortgage aforesaid, which he had assumed to pay, or that the premises were charged with any trust whatever; but, on the contrary, that he bought the premises in good faith, and in the belief that he acquired a good title by his deed ; nor did he know that any thing was due on the mortgage given by Adams to Snow, or that the plaintiffs pretended to any claim on the mortgaged premises, until long after the conveyance to him; that the said note for $ 329 had been due upwards of ten years, at the time of the conveyance to him; and that if there were any such trust between Snow and the plaintiffs, there was none between them and this defendant, and that he ought to hold the mortgaged premises discharged of said trust.</p>

<p>On the trial of this action, which took place in the court of common pleas, before Wells, C. J., the attorney who made the writ, and who was also actively engaged in the trial, as one of the counsel for the plaintiff, and opened the cause to the jury, was called by the plaintiff as a witness, and was allowed to testify as such, against the objection of the defendants. The plaintiff having obtained a verdict, the defendants excepted.</p>

<p>This was an appeal from a decree of the judge of probate, appointing the appellee administrator of the estate of Arba Arnold.</p> <p>It appeared, that Arba Arnold, of Belchertown, died about two years before the commencement of these proceedings in the probate court, intestate, leaving no widow or lineal descendant; and that on the second Tuesday of May, 1847, the appellee was appointed administrator, on the ground, as set forth in his petition, that the intestate left estate of which administration was necessary, and that the appellee was a creditor, and as such entitled to the administration.</p> <p>The reasons of appeal were:</p> <p>1. That the intestate left no widow or lineal descendant; that the appellant' was his father, and had not voluntarily taken or renounced the administration; and that living within the county, he had never been cited by the judge for that purpose.</p> <p>2. That the appellee was not, in fact, a creditor of the intestate.</p> <p>On the hearing in this court, before Dewey, J., it appeared, in reference to the first reason, that no citation was issued md served on the appellant, and that the only notice ever given to him, of the pendency of the appellee’s petition, was a general public notice, to all persons interested in the estate of the intestate, to appeár and show cause, &c.</p> <p>It appeared, also, by the testimony of the judge of probate, that, at the time when the appellee was appointed, the appellant was present, and was inquired of by the judge whether he wished to take the administration; to Avhich the appellant replied, that he would have nothing to do with it, or in words to that effect.</p> <p>The appellant contended, that the notice was not sufficient ; but that there should have been a citation issued and directed tó and served upon him, stating the time and place, when and where the petition of the appellee was to be acted upon; and that he Avas not barred from prosecuting his appeal, by reason of any act or declaration made by him to the judge of probate; he not having made any written renunciation of his right to administer upon the estate of his deceased son.</p> <p>The judge ruled, that after the general public notice in the newspaper, and the acts and declarations of the appellant, as testified to by the judge of probate, the appellee, as a creditor, might properly be appointed administrator.</p> <p>As to the second reason of appeal, namely, that the appellee was not in fact a creditor of the intestate, the appellee produced his book of accounts, and made oath to a charge therein, against the intestate, of fifty-eight cents, for repair of a wagon. The appellee testified further, that the entry of this charge on his book was an original entry, made at the time of its date; that he presumed, though he could not say, that it was first put upon a slate; that he Avas in the practice of makmg entries on a slate, but could not swear that he made this entry; that if he himself did not make it, it was made by one Smith, who worked for him at the time; and that when- he returned home, after being absent, and found charges on the slate, he transferred them to his book.</p> <p>The appellant objected to the competency of this evidence to prove that the appellee was a creditor of the intestate. But the judge overruled the objection, received the evidence as competent, and decided that it was sufficient to prove that the appellee was a creditor of the intestate, to the amount of the charge of fifty-eight cents.</p> <p>The judge thereupon affirmed the decree of the probate court, appointing the appellee administrator of the estate of Arba Arnold, and the appellant filed exceptions.</p>

<p>An alien, resident within the commonwealth, is entitled to the benefit of the insol vent laws.</p>

This was an action of trespass, for taking and driving away a cow belonging to the plaintiff’s intestate, Fanny Thayer, in her lifetime. The case was tried in the court of common pleas, before Washburn, J., and came before this court upon exceptions there taken by the defendant, against whom a verdict was rendered, to the rulings and instructions of the judge.

<p>Where a jury, summoned to reassess damages for land taken for a railroad, rendered a verdict, in which they assessed the damages at a certain sum, " with interest thereon from the time when the said railroad company took possession of the land,” it was held, that the verdict was void for uncertainty, and that the cour of common pleas had no authority to alter the same, or to supply any defect therein.</p> <p>On the hearing before a jury summoned to reassess damages for taking land for a railroad, the party claiming damages has the right to open and close.</p> <p>Where the court of common pleas set aside a verdict of a jury, summoned to reassess damages for land taken for a railroad, they have no authority to award costs to the party objecting to the verdict.</p>

<p>Inhere a bankrupt, under the United States bankrupt act of 1841, knowing that one of his creditors, who is about to oppose his discharge, can prove that he has done acts, which, if shown to the district court, would prevent him from obtaining his discharge, pays such creditor a sum of money to induce him not to oppose the discharge, and such creditor thereupon withdraws his opposition, and the bankrupt obtains his discharge, the same may be impeached and avoided under the fourth section of the act.</p>

<p>The facts appear to be sufficiently stated in the opinion.</p>