Volume 56 — Massachusetts Reports

<p>This was a petition for a review.</p> <p>The petitioner, who was described as of Hartford, in the state of Connecticut, brought his action, by a writ issued and served on the 19th of October, 1844, and returnable at the succeeding November term of the court of common pleas for the county of Hampshire, against the respondent, who was of Belchertown, in that county, to recover damages for the breach of a special contract for the delivery of mulberry trees.</p> <p>The petitioner set forth, in his declaration, in that action, that in the month of August, 1838, he made a contract in writing with the respondent, by which the latter agreed to deliver him all the mulberry trees then growing on the respondent’s farm in Belchertown, provided the petitioner should demand them within the month of October next, and should offer the respondent good and sufficient security for the payment for the trees in the month of May, 1839, at the rate of twelve cents a tree, with the taps or roots as they stood at the time of making the contract; that the petitioner did demand the trees of the respondent in the month of October, 1838, and offered to pay him therefor according to the contract; and that the respondent refused to deliver the trees to the petitioner, and to accept payment or security therefor according to the contract.</p> <p>This action was duly entered, and continued until the February term, 1847; when it was tried upon the general issue, and notice by the defendant that he should rely, among other things, upon the statute of limitations. After the evi dence had been introduced, the jury were instructed, that in case they should find that the demand for the trees was made by the petitioner more than six years before the commencement of the action, they need inquire no further, but return a verdict for the defendant. Under this instruction, the jury brought in a verdict that “ the defendant did not promise the plaintiff in manner and form,” &c.; and, upon being inquired of by the court, whether they found the demand to have been made within six years before the commencement of the action, they answered in the negative. The verdict was thereupon recorded for the defendant, and judgment was rendered in his favor for costs.</p> <p>On the 24th of January, 1848, within a year after the judgment, the petitioner presented his petition to the court of common pleas then sitting in the county of Suffolk, praying for a writ of review of the judgment in the action against him, and for a stay of proceedings therein. On this petition, notice was ordered and served, and the petition was duly entered (the year having then expired) at the next February term of the court of common pleas for the county of Hampshire, and was from thence continued to the June term, 1848. At the latter term, the petition was amended, at the request of the petitioner, by inserting therein an additional ground for granting the review; and, being so amended, the court (Wells, G. J., presiding) refused the prayer of the same on the ground originally stated therein, but ordered a review for the reasons stated in the petition as amended.</p> <p>The respondent alleged exceptions to the orders of the court, allowing the amendment of the petition and granting the review.</p> <p>The ground, upon which the petitioner prayed for a review, as originally set forth in his petition, was as follows: —</p> <p>It being an important question, on the trial, whether the demand for the trees was made within six years before the commencement of the action, the petitioner introduced the deposition of Joshua Davenport, who deposed, that, as the agent of the petitioner, he called twice at the dwelling-house of the respondent in Belchertown, in the last days of October, 1838, two or three days intervening, to demand the trees, and to pay or give security therefor, according to the terms of the contract; that he could not state the precise day of the month when these calls were made ; that his family then resided in Coleraine, in the county of Franklin, and he was in the employment of the petitioner at Hartford; that when he called the first time to make the demand, he was on his way to visit his family in Coleraine, where he remained a few days; that, on his return from Coleraine to Hartford, he stopped at Belchertown, and called the second time on the respondent, and demanded the trees; and that on the way from Belchertown to Hartford, after making the demand, he purchased two hundred dollars’ worth of mulberry trees of Albert Moseley, of West Springfield.</p> <p>This deponent, the petitioner alleged, would testify, that, on the day when he purchased the trees, he gave Moseley his note therefor, which he afterwards paid and took up; but that at the time when he gave his deposition, which was read on the trial, he was not able to find the note, although he had then made diligent search therefor; that since the trial he had discovered the note amongst his papers; that it bore date the 24th day of October, 1838 ; that from the discovery and examination of the same, he was able to testify, that he made the second demand on the 24th day of October, 1838;' that he was at the respondent’s house, the first time, on Saturday, the 20th of October, 1838; that he arrived at the place where his family was residing, a distance of about thirty miles from the respondent’s, on the evening of the same day; and that he left Coleraine on his return to Hartford, and called at the respondent’s house and demanded the mulberry trees on Wednesday, the 24th day of October, 1838.</p> <p>The petitioner averred, that he was not able, by the most diligent inquiry and search, before the trial, to discover this evidence; but that it had since been discovered, and that it would tend strongly to prove that the cause of action accrued within six years, previous to the commencement of the suit, namely, on the 20th or 24th day of October, 1838.</p> <p>In the amendment, which was moved for and allowed, the petitioner alleged, that since making his petition, he had discovered that Simeon Pepper would testify, that soon after the original action was commenced,- the witness had a conversation with the respondent, in which the latter, speaking of the action, said that the petitioner had sued him for the mulberry trees, and that before bringing the action he had waited till five or six days previous to the expiration of the six years.</p>

The defendants, who were jointly indicted in the court of common pleas, in two indictments, were tried thereon at the same term of the court, before Wells, O. J., and convicted.

This action was brought by the plaintiff, by his guardian, Daniel Wells, on a promissory note for $3199-22, dated August 14th, 1844, and signed by the - defendant, Billings, as principal, and the other defendants as his sureties.

<p>This was an action on the case for defamation, brought by the plaintiff, describing himself as the pastor and spiritual teacher of the church and society known by the name of the First Baptist Church in Amherst, against the defendant, for accusing the plaintiff of the crime of forgery, in altering the record of a vote of the church, fixing the plaintiff’s salary at the sum of one hundred and fifty dollars, to a vote fixing it at five hundred dollars.</p> <p>The defendant pleaded the general issue, and filed a specification of defence, in which he alleged that the plaintiff had forged the records of certain meetings of the First Baptist Church in Amherst, held on the 1st of December, 1842, and on the 15th of June, 1843, which records were set out at length in the specification.</p> <p>To prove this allegation, the defendant first called Seth Clapp, who was the clerk of the church and also of the society, who produced the book of records of the church, and read therefrom a supposed record of two meetings of the church, purporting to be held on the 1st of December, 1842, and on the 15th of June, 1843, which were the records alleged in the specification to have been forged.</p> <p>The defendant then offered, as tending to prove the defence above stated, the deposition of Peter Chase, with a paper thereto annexed, the latter purporting to be the minutes of a meeting of the Baptist Church and Society in Amherst, held on the 1st day of December, 1842.</p> <p>The deponent, in his answer to the third interrogatory in the deposition, made the following statement: —</p> <p>“ On the evening of the 1st of December, 1842, a meeting of the society was held in the meeting-house of the Baptist church agreeable to notice given from the desk on the previous sabbath. The clerk of the society (Mr. Wilson) being absent, the meeting was called to order by Mr. Barnard, the clerk of the church. I was appointed chairman of the meeting, and Mr. Arba Barnard clerk pro tempore. As Mr. Barnard was one of the standing committee of the society, who, by vote, was directed to communicate with Mr. Waters, and was so occupied during a part of the evening, and as he is a blacksmith and not a very ready writer, I made the minutes of the proceedings of the meeting. These original minutes made by me that evening I still have, but I left with Mr. Barnard (the clerk pro tempore) a true copy of these' minutes for him to record in the society’s book. These minutes, I believe, contain, according to my recollection, the true statement of the proceedings of that meeting ; and as I made them at the time, I have more confidence in them than I could have in my memory, and I will read them to show what was done.”</p> <p>The deponent then proceeded to read- the minutes of the-proceedings of the meeting of the 1st of December, 1842, and the same were inserted in the deposition, as read by him, and make a part of his answer to the third interrogatory. The paper containing the original minutes is the paper annexed to the deposition.</p> <p>The introduction of the deposition in evidence was objected to generally; but the objection was overruled, and the deposition and paper annexed were read to the jury. A verdict being rendered for the defendant, the plaintiff alleged exceptions.</p>

This was a writ of entry, dated March 25th, 1846, which was tried before Dewey, J., in this court.

<p>An act of the legislature, in addition to a former act, creating a corporation for the management of a trust fund, was passed without the knowledge or request of the corporation, and was never adopted by any direct vote; but the corporation having elected certain officers provided for by the act in addition, and such officers having exercised the powers thereby conferred on them for nearly ten years; it was held, that these proceedings were equivalent to, or sufficient evidence of, a formal assent and adoption by the corporation.</p> <p>It is no objection to an election, that illegal votes were received, or legal votes ejected, unless the majority is thereby changed.</p>

<p>Where goods, which have been obtained by means of a fraudulent purchase, are seized under a warrant of insolvency, as the property of the buyer, the seller may maintain replevin therefor, against'the messenger, without a previous demand.</p>

This was an action of trover, for certain property hereinafter mentioned, and was tried before Wells, C. J., in the court of common pleas. The case was as follows: — The plaintiff, by an instrument in writing, signed by himself and Solomon Buckland, let the half of his farm in Wilbraham to Buckland, for one year from the 1st of April, 1846, upon certain terms and conditions specified in the writing.

<p>This was an action to recover the amount of expenses incurred by the plaintiffs for the support, nursing, and medical treatment of James E. Belden, a poor person, who was alleged by the plaintiffs to be an inhabitant of and to have a settlement in the town of Worcester.</p> <p>The writ was dated May 19th, 1847, and contained three counts: 1st, on the Rev. Sts. c. 46, § 13, to recover the expenses of supporting Belden as an ordinary pauper; 2d, on an alleged implied obligation, on the part of the defendants, to defray the expenses of Belden’s support; and 3d, on the act of 1837, c. 244, <§> 1, for the recovery of expenses incurred by the plaintiffs in consequence of Belden’s being sick of the small pox in the town of Springfield. On the trial, which took place in this court before Dewey-, J., on the 8th of May, 1848, the following facts appeared in evidence, or were admitted by the parties.</p> <p>On the 5th of May, 1846, Belden, being then an inhabitant of the town of Worcester, and legally chargeable thereto as a pauper, was infected and sick with the small pox in the town of Springfield, and was there provided by the board of health of that town with nurses, medical attendance, a hospital, and other necessaries. Belden remained sick for some time, and the plaintiffs expended in his support and cure the sum of $355-01, which he was wholly unable to pay.</p> <p>The following notice was sent, on the day of its date, by the selectmen of Springfield to the selectmen of Worcester:—-</p> <p>“ Springfield, May 25th, 1846.</p> <p>“ Gentlemen : James E. Belden, a colored man, came here, not far from the 1st of this month, diseased with the small pox.</p> <p>“ The expenses of his sickness have been borne by this town; the man himself having no means of paying them. According to the information we have, the town of Worcester is liable for these expenses.</p> <p>“ We have therefore thought it our duty (although not legally obliged so to do) to notify you of the case, that you may take such measures, in regard to it, as you may deem proper. We are told that Henry W. Miller, of your place, is well acquainted with Belden.</p> <p>“ The physicians, who have had charge of the case, state that their patient will probably recover. His disease has been the worst form of small pox.</p> <p>“In behalf of the selectmen of Springfield,</p> <p>“HENRY MORRIS, Chairman.</p> <p>“ To the Selectmen of Worcester.”</p> <p>This notice was received by the selectmen of Worcester, and, on the 22d of June, 1846, the chairman of the overseers of the poor of Worcester went to Springfield, and called upon some of the officers of that town, in relation to the subject of Belden’s sickness. He denied that Belden had a legal settlement in Worcester, and said that the notice, which was sent to the town of Worcester, was not in the proper form; but he offered, nevertheless, to pay the town of Springfield one dollar a week towards the expenses of Belden’s support. The towns of Springfield and Worcester had both of them regularly organized boards of overseers of the poor during the year 1846.</p> <p>The jury found, upon the evidence submitted to them, -that Belden’s settlement was in Worcester, and that the plaintiffs were entitled to recover the sum of $355-01, and rendered their verdict accordingly.</p> <p>If, in the opinion of the court, the notice was sufficient, under the Rev. Sts. c. 46, <§> 13, or under the act of 1837, c. 244, <§> 1; or, if, under that act, no notice was necessary; then judgment is to be rendered on the verdict, with interest from such time as the court may direct. But if, in the opinion of the court, the notice was insufficient, and the defendants are entitled to object thereto, then the plaintiffs are to become nonsuit.</p>

<p>This was an action on the case, in which the plaintift declared as follows : —</p> <p>“ For that the defendant, on the fourth day of May, in the year eighteen hundred and forty-seven, at Wales, in our said county of Hampden, was one of our justices of the peace, for our said county, and did then and there wilfully and maliciously issue, under his hand and seal of his said office, a criminal warrant against the plaintiff, directed to the sheriff of our said county, his deputy, or to the constable of the town of Holland, in said county, commanding either of them to apprehend the said Pratt, and bring him before the said justice, or some other justice of the peace, for said county, for trial upon a false and malicious complaint of one Elwell P. Burley, charging the plaintiff with a malicious trespass upon the land of said Burley, in said town of Holland; which said complaint was false, feigned, and groundless, and which the said defendant well knew to be false, feigned, and groundless ; and upon said false, feigned, malicious, and groundless complaint and warrant, the plaintiff was taken before said Gardner, as one of our justices as aforesaid, according to the precept of said warrant; and the plaintiff, being thus before said Gardner, the said Gardner did then and there, contrary to his duty and oath as a justice of the peace, and with intent to injure the plaintiff, wilfully and maliciously try, and cause said Pratt to be tried by and before him the said Gardner, upon said false and groundless complaint, without giving time and opportunity to said Pratt to obtain witnesses and proofs favorable to him on said trial, and without giving the plaintiff opportunity to obtain counsel, with which to meet the witnesses against him, and advise him as to his legal rights; all of which the plaintiff moved, desired, and requested of the defendant to be permitted to do; and the defendant, wilfully, and maliciously, and illegally, refusing said request, did try said plaintiff upon the said complaint, and did wilfully, and maliciously, and illegally convict the plaintiff of being guilty of said alleged malicious trespass, of which the plaintiff was not guilty, and of which the defendant well knew that he was not guilty; and the said defendant did maliciously order the plaintiff to pay a fine of two dollars, and also to pay seven dollars under color of costs; which said unlawful and malicious sentence the plaintiff refused to comply with ; and the said defendant did then and there maliciously and wrongfully issue his warrant, directing the sheriff of our said county, or his deputy, or the constable of Holland, to carry the said plaintiff to our common jail in Springfield, in our said county, and commanding the" keeper thereof to receive and keep said Pratt, until he should comply with the sentence aforesaid. And by virtue of said unlawful precept, the plaintiff was carried to and imprisoned in said jail for the space of one day, until, to obtain his liberation and freedom, he was obliged to comply with the false, groundless, and malicious order of the said defendant.”</p> <p>The defendant demurred generally to the declaration, and the plaintiff joined in demurrer.</p>

<p>The statute of 1845, c. 208, does not extend or enlarge the power of a married woman to make a will.</p>

<p>In this action, which was an action on the case, tried in the court of common pleas, before Byington, J., the declara, tion alleged, that the defendants, in April, 1844, were chosen and sworn assessors of the town of Southwick, for that year; that the plaintiff was an inhabitant of Southwick, liable to taxation, and upwards of twenty-one years of age; that the defendants, knowing these facts, refused to tax the plaintiff; and that the defendants, at a town meeting held in the following November, were the acting selectmen of the town, and presided in the meeting as such.</p> <p>In order to prove that the defendants were the assessors and selectmen of Southwick, the plaintiff offered to show, by parol testimony, that they held meetings as assessors, — made out and put up lists of voters for the year 1844, — requested that the names of persons not borne on the lists should be handed in to them, which was done; that the defendants took a memorandum of such names and inserted a part of them on the list, but refused to put the plaintiff’s name thereon ; that the defendants also acted as selectmen, and as such refused to allow the plaintiff to vote, because they had not put his name on the list.</p> <p>The judge, being of opinion, that it was incumbent on the plaintiff to prove that the defendants were legally chosen and qualified as assessors and selectmen, by the records of the town or by copies thereof properly authenticated,’as being the better and legal evidence of those facts, refused to receive the evidence above mentioned. The plaintiff did not offer to prove, that there were no existing records of such facts.</p> <p>The jury thereupon returned a verdict for the defendants, and the plaintiff alleged exceptions.</p>

This was a prosecution under the Rev. Sts. c. 49, originally commenced by Jane C. Rice against the defendant, as the putative father of her bastard child, and entered in the court of common pleas for the county of Hampden, at the February term thereof, 1844. At the October term, 1847, the defendant pleaded in abatement the intermarriage of the complainant with one Arba C. Hyde, since the last continuance.

<p>It is no sufficient ground for refusing to instruct a jury, as to the legal effect of the facts which the evidence'-tends to prove, and for leaving such legal effect to the jury, as a question of fact, that the evidence is alleged to be so obscure, that it cannot be understood by common minds.</p> <p>Where a misapprehension exists between the parties to a contract, with reference to its subject matter, as where one of them intends to sell a particular thing and the other intends to buy a different thing, or where the parties to a sale suppose the subject of it to be in existence, when, in fact, it has been destroyed, such misapprehension, if satisfactorily proved, will show that no contract has in fact been made. But the same consequence will not result from a misapprehension of one or both of the parties, with reference to the legal effect of the terms of their contract, unless it be altogether unintelligible.</p> <p>A party, who enters into a contract in writing, without any fraud or imposition being practised upon him, is conclusively presumed to understand and assent to its terms and legal effect.</p> <p>If A enter into the service of B upon an agreement to labor for him a year, and leave at the end of six months, A can maintain no action for the services so rendered; but if B then promise A to pay him for the six months’ labor, upon the performance of any additional service, however slight, or the doing of some act by A, to his personal inconvenience, though of no value to B, and such servicé is rendered or act done, this will so far operate as a waiver of the original contract, that an action may be maintained by A for the six months’ labor.</p>

’ The plaintiff brought an action of replevin in the court of common pleas, for certain cattle described in the writ, and alleged to be his goods and chattels.

This action, which was commenced on the 4th of October, 1847, was brought to recover the amount due on a promissory note, of which the following is a copy: — “ Granby, August 15, 1825. For value received I promise to pay Aretas Ferry or order three hundred and thirty-one dollars and twenty cents with interest annually — to be paid within three days after the decease of the widow Hannah Ferry of Granby — which payment I bind myself, my heirs and assigns to pay.

This was an action on the case, against the defendants, as selectmen of the town of Millbury, for refusing to put the plaintiff’s name on the list of voters, and thereby preventing him from voting at the town meeting held in March, 1847.

<p>On the trial of this action, which was in the court of common pleas, before Merrick, J., the defendants having called and offered a witness to be sworn, the plaintiff objected to - his competency, on the ground of a want of religious belief; and offered to produce witnesses to provez that the witness in question did not believe in the existence of God, or in a future state of rewards and punishments. The presiding judge declined to hear the testimony, so offered by the plaintiff, and overruled his objection to the competency of the Avitness; who was thereupon sworn and testified on the trial. The jury returned a verdict for the defendants, and the plaintiff alleged exceptions.</p> <p>F. H. Dewey, for the plaintiff, referred to 1 Greenl. Ev. §§ 368, 369; Wakefield v. Ross, 5 Mason, 18; Norton v. Ladd, 4 N. H. 444; Arnold v. Arnold, 13 Verm. 362 ; Curtis v. Strong, 4 Day, 51; Jackson v. Gridley, 18 Johns. 98; Cubbison v. M’Creary, 2 Watts & Serg. 262; to show that no person is a competent witness, who does not believe in the existence of God. A belief in a future state of rewards and punishments is equally essential; though whether the belief must be of such a state in this world, or in the next, is perhaps not settled. 1 Greenl. Ev. <§> 369.</p>

<p>An administrator is not liable as the trustee of one entitled to a distributive share in the estate of his intestate, until after the filing and approval of his administration bond, and the delivery of letters of administration to him by the judge of probate.</p> <p>Where two trustee processes are served at the same time, and judgment is recovered in each for a sum greater than the amount in the hands of the trustee, each of the creditors is entitled to one half of the funds, although their several judgments are for unequal amounts.</p>

<p>This was a bill in equity, filed in this court on the 15th of September, 1846, for the redemption of certain real estate therein particularly described.</p> <p>From the statements in the bill which were not controverted, it appeared, that, on the petition of the plaintiff, presented to a master in chancery on the 21st of July, 1846, proceedings in insolvency were instituted against one Alfred P. Bartlett, the mortgagor of the premises in question, in pursuance of which proceedings, all the estate of Bartlett, which he was possessed of, interested in, or entitled to, on the 24th of July, 1846, was assigned by the master to Francis H. Dewey, esquire, who was duly chosen assignee thereof; that the assignee, on the 11th of September, 1846, by his deed of that date, duly executed, delivered and left in the registry of deeds to be recorded, on the 14th of the same month, assigned all his right, title and interest, as assignee, in the mortgaged premises to the plaintiff; that Bartlett, the insolvent, previous to the proceedings in insolvency against him, made a mortgage of the premises to Alpheus M. Merrifield, as security for the payment of three hundred dollars, on demand, which mortgage was duly assigned by Merrifield to the defendant, on the 6th of August, 1846; that a judgment having been recovered at the June term, 1846, of the court of common pleas, by the Q,uinsigamond Bank against Bartlett, for $421-87, debt, and $6-12, costs, execution issued on the same on the 22d of June, 1846, and the officer having such execution attached and took thereon all the right in equity which Bartlett had on the 20th day of March, 1846, to redeem the premises, and duly sold and conveyed the same to the defendant, on the 25th of July, then next, for the sum of six hundred dollars; and that the defendant then came into and had ever since been in possession of the premises, under and by virtue of such sale and conveyance.</p> <p>The bill then proceeded to allege, that the levy and sale by the officer conveyed no title to the defendant, for the reason, that in the action brought by the Quinsigamond Bank against Bartlett, “ the judgment was not rendered in due course upon a verdict, or upon a default of the said Bartlett, nor was the judgment rendered by order of the court of common pleas, or any justice thereof, but when the actions which were returnable at said court at the term held on the third Monday of June last, were called over on the fourth day of the term, and the action of the said bank was called in due course of the docket, the court ordered, that the said defendant being ex re. said action should be continued to the next term of said court, and that thereafter, without any authority from said court, and without any knowledge of the presiding justice thereof, an entry of judgment was made by the clerk of the court, upon the representation of one William Greenleaf, claiming to appear for the said Bartlett, in the said action, and in one in favor of the said Sutton, and one in favor of the said Greenleaf, against the said Bartlett, and fraudulently and improperly procuring said entries and said judgment; ” and “ that the term of the court, at which said actions were entered, commenced on the 15th day of June last, and that said term continued for the space of six days, and that, contrary to the statute in such case made and provided, judgment was rendered against said Bartlett on the fourth day of said term, and without there being any order made by said court.”</p> <p>The bill also contained a statement, that at the sale by the officer on the execution, the defendant was notified by the messenger, that the title of any one who should become the purchaser would be contested by the other creditors of Bartlett, on the ground that the judgment was inoperative and void ; that the officer received a similar notice from the messenger and from other creditors of Bartlett; and that public proclamation was made of such notice at the time of the sale. The other allegations of the bill are not material to be stated.</p> <p>The defendant, in his answer, admitted all the facts above set forth, with the exception of the proceedings in the court of common pleas, relative to the action upon which the judgment in favor of the duinsigamond Bank against Bartlett was founded.</p> <p>The cause having been referred to a master, with an order to state the facts, he reported thereon substantially as follows : —</p> <p>It appeared, by the docket of the clerk, that at the June term of the court of common pleas, for the county of Worcester, held on the third Monday of June, 1846, three actions were entered on the new docket against Alfred P. Bartlett. The entries and memoranda, with reference to these actions, were as follows: —</p> <p> </p> <p>It further appeared, from the docket, that at the June term, 1846, the court adjourned on the 20th, after a session of six days. An affidavit of Mr. Kendall, late clerk of the courts in the county of Worcester, taken on the 23d of July, 1846, to be used as evidence before the supreme judicial court, for the purpose of obtaining an injunction to restrain the sale of Bartlett’s right in equity on the execution against him, was offered in evidence before the master, by the plaintiff. This affidavit was taken without notice to the defendant, who was not present at the taking of the same ; and Mr. Kendall, the affiant, died before the hearing. It appeared from Mr. Kendall’s statement, that the entries on the docket, as above given, were correct, and that judgment was rendered in the several suits against Bartlett, as therein indicated; but Mr. Kendall did not recollect, that any order or direction was given or made by the court respecting the entries in these actions or either of them, except the order of continuance which was afterwards stricken out, as indicated by the line drawn through the entry thereof; and there was no default in form made in either of the cases.</p> <p>In relation to these actions, it also appeared by the books in the clerk’s office, which were introduced in evidence before the master by the defendant, and which purported to be the records of the proceedings of the court, or of a part thereof, for the June term, 1846, that judgment was rendered in the said actions, as indicated by the several entries on the docket.</p> <p>The following is a copy of the concluding part of the supposed record in the case of the Quinsigamond Bank against Bartlett. In the other cases, the entry was the same, mulatis mutandis: —</p> <p>“Now in this term, William Greenleaf appears, as the attorney of the defendant, and agrees that the plaintiffs may have judgment for the amount claimed by them in and by the writ aforesaid. It is therefore considered by the court, that the said President, Directors, and Company of the Q,uinsigamond Bank recover against the said Alfred P. Bartlett the sum of four hundred and twenty-one dollars and eighty-seven cents, damage, and costs of suit, taxed at six dollars and twelve cents.”</p> <p>It appeared, that the above mentioned entries in the clerk’s books, in reference to these actions, had never been examined and certified by Mr. Kendall, the late clerk, and were not in his handwriting.</p> <p>A deposition of the Hon. Emory Washburn, taken before the master, was also introduced by the plaintiff, from which it appeared, that the deponent was the presiding judge, by whom the court of common pleas was held at the June term, 1846, in Worcester; that when the actions against Bartlett were called, some one, supposed by the judge to be the attorney for the plaintiffs, said that the defendant was out of the commonwealth, whereupon the clerk said interrogatively to the judge, either “ they will be continued,” or “ shall they be continued,” to which the judge gave an affirmative answer, and saw the clerk make what the judge supposed to be an entry of the order for their continuance upon his docket; that the judge did not at any time during the term make any order for the entry of a judgment in favor of any of the plaintiffs in the actions against Bartlett; that he did not authorize any such entry, and knew of none having been made, until Bartlett’s equity of redemption was advertised, by the officer, to be sold on the execution against him in favor of the bank.</p> <p>To the following cross interrogatory, put by the defendant: — “ When a continuance is entered by reason of the absence of the defendant from the commonwealth, and afterwards at the same term, there is an appearance for the defendant and consent to a default or judgment, is it not within the customary or common usage of the court of common pleas, for the clerk to change the entry according to the wishes of the parties, without a special application to the presiding judge ? ” the deponent answered: — “In such cases, I have known applications to be made to the court, but I presume that such entries are made without the direction of the court, although I am unable to call to mind particular instances.”</p> <p>To the following cross interrogatory also put by the defendant:— “Is not the default business on the new docket disposed of in a great measure by the clerk, — defaults, judgments, continuances, &c., being entered by him according to the agreement of counsel, and the suggestions of the plaintiff’s attorney, when there is no appearance, without application to the judge, — the clerk making such entries as are usual, according with the general practice of the court ? ” the deponent answered: — “ The new docket is usually disposed of in the presence of the presiding judge," who ordinarily appears to pay little attention to the disposition of the actions, unless particularly applied to.”</p> <p>It further appeared from the deposition of judge Washburn, that it had been customary for many years, for the court to direct the clerk to call the new docket on the fourth day of the term, and the actions on the new docket had been then disposed of, unless for some reason there had been special orders made in regard to particular cases; and that in relation to such cases, the disposition is often changed during the term by the clerk, with the consent of parties, but without any order of the court.</p> <p>At the hearing before the master, the defendant objected to the introduction of any and all evidence tending to contradict or control the record; and, instead of ruling upon any of the points of law arising upon the facts as above stated, the master referred the whole matter to the court, in accordance with the understanding of the parties. His report was agreed to be received as a statement of the facts.</p>

<p>A judgment being rendered for a certain sum, which was minuted on the writ, and an entry thereof made on the clerk’s docket, execution issued thereon accordingly ; the rébord being subsequently extended, the judgment was stated therein, by mistake, to be for a different sum; and, on the fact being made to appear, by the petition of the judgment creditor, the court directed an amendment of the record.</p> <p>Where the assignee of an insolvent debtor, against whom a suit is pending, on which an attachment of the debtor’s property has been made, is authorized by the court, in pursuance of the statute of 1841, o. 124, § 5, to proceed with the suit to final judgment and execution, the proceedings are to be conducted, and the judgment rendered and execution thereon issued, in the name of the assignee, as such; and, upon being so authorized, the assignee takes the attaching credit- or’s place, with all the remedies and securities, and the benefit of all official liabilities, respecting the attached property, to which the creditor would otherwise be entitled.</p> <p>An assignee, who is authorized under the statute of 1841, o. 124, § 5, to prosecute a suit commenced by a creditor against the insolvent, and who prosecutes the same to final judgment and execution, is entitled to recover the costs of the suit, and will hold the same subject to the claim of the original plaintiff, for the amount thereof disbursed by him, and to the claim of such plaintiff’s attorney for the amount of his lien thereon.</p> <p>A deputy sheriff, who attaches personal property on mesne process, and takes a receipt therefor, and leaves the property in the possession of the receiptor, by whom it is delivered to the owner, who converts it to his own use, is estopped by his return of such attachment, when called upon to seize and sell the property on the execution, to deny that the property is in his hands, both as against the original attaching creditor, and as against the assignee of the debtor, admitted to prosecute the suit under the statute of 1841, c. 124, § 5.</p> <p>Where the assignee of an insolvent debtor, being authorized under the statute of 1841, o. 124, $ 5, to prosecute a suit against the debtor, in which the debtor’s property has been attached, prosecutes the suit to judgment and takes out execution thereon in his own name as assignee, it is the business of the officer by whom the writ was served to ascertain from the record, that the suit is the same in which the attachment was made.</p>

This was an action of trover for the value of a uniform, and was tried before Mellen, J., in the court of common pleas.

<p>In an action of slander, for charging the plaintiff with stealing two beds, it is not competent for the plaintiff, for the purpose of showing malice, to prove that the defendant subsequently entered a complaint against him before a magistrate, for stealing a lot of wood and old iron: first, because the words used in the complaint do not relate to the charge which is the subject of the action; and, secondly, because such using of the words is a proceeding in a course of justice, before a magistrate having jurisdiction of the supposed offence.</p> <p>The defendant, in an action 'f slander, brought by husband and wife, for words spoken of the wife, cannot be allowed to prove, in mitigation of damages, that tha defendant keeps a disorderly house.</p> <p>tt is not competent for the defendant, in an action of slander, with a view to show that the words were not spoken maliciously, to prove circumstances, which excited suspicion, and furnished reasonable cause for belief, on his part, that the words spoken were true.</p>

<p>The plaintiff brought his bill in equity to redeem an equity of redemption, which had been attached and seized on execution as the property of Edmund H. Houghton, and sold and conveyed by the officer to the defendant.</p> <p>The bill was filed on the 30th of August, 1847, and alleged, that, on the 8th of January, 1844, Edmund H. Houghton, being seized in fee of certain real estate in Barre, mortgaged the same to Jason Mixter; that, on the 8th of August, 1845, the mortgagor’s interest therein was attached on mesne process; that, on the 24th of November, 1845, the mortgagor, having continued in possession of the mortgaged premises, mortgaged the same to the plaintiff, subject to the prior mortgage to Mixter, and to the attachment; that both the mortgages remained unpaid and in full force ; that, on the 31st of August, 1846, the interest of the mortgagor in the mortgaged premises was regularly sold on. execution, in pursuance of the attachment thereof, and was conveyed to the defendant by a deed dated the 16th of November, 1846; and that the defendant had since been seized ánd possessed of the same, subject to the right of redemption. The bill concluded with a prayer, that the amount due on the redemption, which the plaintiff offered to pay, might be ascertained; and that he might be allowed to redeem upon such payment. ■</p> <p>The answer admitted the facts stated in the bill, but alleged further, that, on the 28th of January, 1846, the mortgagor petitioned a master in chancery for relief as an insolvent debtor, and such proceedings took place thereupon, that Daniel Bacon was appointed his assignee.; that the attachment of the equity of redemption being ordered by the master to be kept alive, the assignee was permitted by the court to proceed, and did proceed to judgment, with the suit on which the same was made; that the debtor’s interest in the mortgaged premises was duly sold on execution, as set forth in the bill, to satisfy the judgment thus obtained, and the proceeds of the sale, exclusive of costs, vested in the assignee; that, on the 6th of January, 1848, the defendant agreed with the assignee, in writing, under seal, that the latter might, at any time before the 1st of April, 1848, bring his bill to redeem the equity of redemption from the sale on execution, with the same effect as he might have done previous to the 30th of August, 1847; that, on the 9th of March, 1848, Bacon, the assignee, filed his bill in equity to redeem, which was duly proceeded with, and is now pending in this court; that the defendant is informed and believes, that Bacon Intends to dispute the validity of the plaintiff’s mortgage, on the ground, that the same was made without consideration, and to conceal property from creditors; that the defendant is ready and willing to do in the premises whatever he ought by law to do ; that the plaintiff and Bacon both claim the right to redeem, and the defendant is advised that he cannot safely determine to which of them it belongs; and that he has filed his bill of interpleader, praying that they may interplead, in order that this question may be determined between them</p>

The plaintiff brought an action of trespass for breaking and entering his close, described in the writ, and cutting and carrying away the timber and trees there standing and growing ; and, on the trial, which was in the court of common pleas, before Merrick, J., introduced evidence to show an entry upon the close by the defendant, and the cutting and carrying away of the trees and timber, as alleged in the writ.

The defendant was indicted, at the last May term of the court of common pleas, in this county, for selling spiritous liquor contrary to law.

This was an action of assumpsit upon a promissory note. At the trial, which was before Merrick, J., in the court of common pleas, the defendant contended, among other things, that the note was without consideration, inasmuch as it was given by the defendant for a debt of his son, Joshua Corbin, jr., who, at the time of the contracting of the debt, was of full age.

<p>This was an action on the case for an alleged obstruction of the plaintiff’s right of passage over land adjoining his estate, and was submitted to the court upon the following facts agreed by the parties : —</p> <p>On the 18th of July, 1843, Charles Paine and Henry Paine, being the lawful owners of certain premises in Worcester, sold and conveyed the same to the plaintiff, with certain rights as incident thereto, by their deed of that date, which contains the following description, namely: “ Beginning at a point on the south side of said Walnut Street, which shall be twenty feet west in a horizontal line from the north-wesi corner of the brick store of the grantors on Main Street, and now occupied by F. H. Kinnicutt, thence running southerly and parallel with the west wall of the block of stores of the grantors occupied by said F. H. Kinnicutt and others, at a distance of twenty feet west of said wall to land of George Brinley, being about one hundred and eight feet, more or less, thence turning and running westerly and bounded on the south by land of said Brinley about eight feet to the north-eastern corner of land of Warner Hinds, thence continuing in the same direction and bounded on the south by land of said Hinds, till it comes to land of Isaac Davis, thence turning and running northerly and bounded on the west by land of said Davis till it comes to the south side of said open road commonly called Walnut Street, thence turning and running easterly and bounded on the north by said Walnut Street, to the point of starting, together with the right of passing and repassing over the space of twenty feet between the west wall of the store aforesaid and the eastern line of the before grant ed premises.” *</p> <p>The plaintiff has ever since continued to be, and now is, the owner of the estate conveyed to him by this deed. The defendants, at the time of the conveyance, were and ever since have continued to be the occupants of one of the stores in the brick block, being the store named in the deed as “ occupied by F. H. Kinnicutt; ” and during the whole time of such occupation, they have at all times kept boxes, barrels, &c., piled up against the rear of the store, and within and upon the space of twenty feet between the store and the plaintiff’s estate.</p> <p>If the court should be of opinion, that the plaintiff, by virtue of the deed above mentioned, took the right of passing and repassing over the whole of the space of the twenty feet mentioned therein, as and for a passage way, and to have the whole of it kept open and unmolested at all times, then judgment is to be entered for the plaintiff for the sum of twenty-five dollars damage ; but if the court should be of opinion, that such is not the true construction of the deed, but that it merely conveys to the plaintiff a convenient right of passage way, of reasonable and convenient width, over the said space of twenty feet; or that the right conveyed by the deed is other than that of a passage way as wide as the whole of the space of twenty feet; then this statement of facts is to be discharged, and the case to be submitted to a jury, under such directions, as the court shall determine the true construction of the deed requires.</p>

<p>This was an action to recover the amount of a promissory note, purporting to be signed by the defendant, payable to the plaintiffs or their order four months after date, and signed by an attesting witness. The trial was before Mellen, J., in the court of common pleas.</p> <p>The defendant pleaded the general issue and filed the following specification of defence : —</p> <p>“ The said Billings gives notice that he shall deny the signature of the note declared on, and that in his defence he shall -also rely upon a want of consideration for the said note, upon a failure of consideration, and upon the ground that the said note was obtained by fraud.”</p> <p>The plaintiff called the attesting witness in order to prove the defendant’s signature, and also to prove the consideration of the note.</p> <p>The defendant then introduced various signatures of his, the genuineness of which was proved, and also three witnesses acquainted with his signature, to testify as to the genuineness of the signature to the note in question.</p> <p>The plaintiffs then offered to put in further evidence as to the genuineness of the note, to the introduction of which evidence, at that stage of the cause, the defendant objected ; but the presiding judge overruled the objection, and allowed the evidence to be introduced, on the ground that the plaintiffs were surprised, by the course of the trial, supposing that the execution of the note was not the main ground of defence, and that the denial of the signature by the defendant was a formal matter, merely for the purpose of compelling the plaintiffs to introduce the attesting witness; although the defendant’s specification of the ground of defence so taken was filed at a previous term of the court. A verdict being returned against the defendant, he alleged exceptions.</p>

This was an action of trover to recover the value of certain articles of machinery, drugs, and dye stuffs, named in the writ, and was tried before Merrick, J., in the court of common pleas.

This was an appeal from a decision of the judge of pro bate, disallowing the claim of the plaintiff against the estate of William H. Honey, an insolvent debtor, of which the defendant was assignee; and was submitted to the court upon the following facts : — The plaintiff, having an action of assumpsit pending m the court of common pleas, against William H. Honey, on which the real estate of the latter was attached, brought the same to trial, at the December term, 1846, and…

The first of these causes was an action of trover, brought by the plaintiff as the assignee of Lucius Beach, and also of Lucius Beacli and John Bowen, constituting the firm of Bowen & Beach, to recover damages for the taking and conversion by the defendant of a large quantity (upwards of ten thousand pounds) of wool, the property of the insolvents.

<p>In an action of slander» in which two distinct causes of action are set out in several counts, on some of which, being substantially for one of the causes of action, the plaintiff obtains a verdict, and on the others, being for the other cause of action, the defendant obtains a verdict, the plaintiff, as the prevailing party, is entitled to recover the costs of the action, and, under the Rev. Sts. <?. 121, § 16, for all evidence introduced by him, which is not specially applicable to the counts on which the defendant obtains a verdict, as, for example, for evidence incident to the assessment of damages, but not for that which is specially applicable to those counts; and the defendant is entitled to recover costs for the evidence introduced by him, which is specially applicable to the counts on which he prevails, but not for that which is not specially applicable to those counts.</p>

<p>This was a writ of entry, brought for the recovery of a piece of land containing four acres and one hundred and fourteen rods, situated in Northbridge. The case was submitted to the court upon the following agreed statement-of facts:—■ John Cooper, of Northbridge, who was the owner of the premises in question, and from whom both parties claimed title, died, leaving a will which was proved on the 26th of May, 1818, and which contained the following among other clauses: —</p> <p>“ I give and bequeath unto my beloved wife Lydia Cooper the improvement and income of one third of the land lying west of the road leading by my house, with the improvement of all the house during her life.”</p> <p>“ I further give and bequeath to my youngest son Stillman Cooper the improvement and income of all my lands (excepting that which is bequeathed to my beloved wife) during his life, and the improvement and income of my beloved wife’s thirds, after her decease, I will and bequeath to my son Still-man Cooper, if he shall then be living, during his life.”</p> <p>“ And further, I will and order, as to all the residue and remainder of my personal estate, goods, chattels of what kind and nature soever, to be disposed of for the payment of my debts. And as I am owing more money than I have owing to me, I authorize and empower my executrix hereafter named, to sell and convey by a good and sufficient deed so much of my real or freehold estate, as shall be sufficient to pay all my debts together with the expense arising from my last sickness and funeral charges.”</p> <p>“ And I hereby appoint my beloved wife Lydia Cooper sole executrix of this my last will and testament.”</p> <p>Lydia Cooper accepted the trust of executrix, and gave bond for the due performance of her duties as such.</p> <p>The demanded premises were set out to her, by commissioners appointed by the court of probate for that purpose, on the 18th of November, 1818, as the one third of the real estate, the use and improvement of which were devised to her by her husband.</p> <p>It being necessary to resort to a sale of the real estate of John Cooper, for the payment of his debts, the executrix filed a petition in the court of probate, on the 7th of December, 1824, and obtained license and authority to make such sale, on the first Tuesday of January, 1825. The executrix, before proceeding to sell in pursuance of the license, gave the bond and took the oath required by law. In the order of the probate court, containing the license, and in the condition of the bond, she is described as “ Lydia Cooper, administratrix on the estate of John Cooper,” and not as executrix.</p> <p>In pursuance of the license from the probate court, the executrix, on the 25th of May, 1825, offered for sale at public auction the premises demanded in this suit, as the real estate of the testator; and the tenant, being the highest bidder for the same, became the purchaser thereof for the sum of $164-71.</p> <p>Two deeds of the premises so sold were made, executed, and delivered by the executrix to the tenant.</p> <p>In the first of these deeds, which is dated the 25th of May, 1825, the day of the sale, the grantor, describing herself as “ a single woman, widow,” for the consideration of $164-71, paid to her by Erastus Robinson, the tenant, conveyed the premises in question to him, and his heirs, &c., in the following terms: — “a piece of land situate in the northerly part of Northbridge, being a part of the real estate which John Cooper, late of Northbridge, died seized and possessed of, and that part which was set off to me, said Lydia, as my third, and the same land and house, which the honorable court of probate has ordered and decreed I said Lydia should sell for the payment of debts due from the estate of the said John Cooper, deceased, and was set off to me, said Lydia, as follows, viz.” This deed purported to convey a fee simple to the grantee, and contained the usual covenants of warranty.</p> <p>In the second deed, the grantor, describing herself as the “ administratrix on the estate of John Cooper, late of North-bridge, deceased, intestate,” and reciting the license and the proceedings preliminary to a sale, and that pursuant to the license, &c., she did sell at public vendue, on the premises, a tract of land, “being the remainder of the real estate of said John Cooper,” to Erastus Robinson (the tenant) “forthe sum of $ 164-71, he being the highest bidder therefor,” in consideration of that sum paid her by Robinson, and by virtue of the power and authority vested in her by the license, conveyed the premises to Robinson in fee simple, with the usual covenants contained in deeds of that description. This deed was not executed until more than a year after the granting of the license, namely, on the 23d of February, 1826.</p> <p>The sale of the premises was necessary for the payment of the testator’s debts; the license therefor was duly obtained ; legal notice of the time and place of sale was given; the tenant was a bona fide purchaser; the price for which the land was bid off was paid by him; and the proceeds of the sale were duly applied to the payment of John Cooper’s debts, and regularly accounted for.</p> <p>The executrix, on the first Tuesday of July, 1820, rendered her first and only account, which was allowed, and a balance found due thereon to her of $229-22.</p> <p>The demandant claimed an estate for life, commencing on the 12th of February, 1845, when Lydia Cooper died, in the demanded premises, under the will of his father John Cooper.</p> <p>The tenant claimed under the sale above mentioned and the two deeds from Lydia Cooper to him.</p>

<p>A declaration may be amended, by leave of the court, by striking out a count, of which the court has no jurisdiction.</p> <p>Where a plaintiff claimed an easement in land adjoining his mill, on the ground, that from the year 1822 to the year 1846, the premises had been used by him as a part of his mill yard, for the purpose of laying logs, lumber, and boards thereon; and evidence was introduced, on the part of the defendant, tending to show that from the year 1829 to the year 1834, both inclusive, no such use had been made of the premises; it was held, that the omission, if proved, would be such an interruption of the use as would prevent the plaintiff from acquiring a title to the ease ment by prescription; notwithstanding that the premises had remained unoccupied, during the whole period from 1822 to 1846, except by the plaintiff, that no notice had been given to him to cease occupying, and that no act had been done during that period by the owner of the land, indicating an intention to interrupt or disturb the plaintiff in his use of the premises; and that it would not be sufficient to entitle the plaintiff to a verdict, if the jury should be satisfied, that he had used and occupied the premises, for the purpose of laying logs, &c., thereon, for twenty years and upwards, during the period from the year 1822 to the year 1846, exclusive of the year or years omitted, unless the jury should believe that such omission had taken place in consequence of an abandonment of his claim by the plaintiff.</p>

<p>The questions considered by the court in this case, which was an action of trespass to land referred by a rule of court to the Hon. John Davis, and Anthony Chase, Esq., of Worcester, and Moses Sawyer, Esq., of Sterling, arose upon the award of the arbitrators. The order of reference contained the fo’'owing clause : —“ The arbitrators shall determine and award as to the limits and boundaries of the lands of the respective parties, upon and near which said trespasses are supposed to-have been committed, and as to all the rights of the parties to the use of the water in the stream running on or through said lands, and may award that either or both parties shall give deeds and what deeds for the purpose of settling and quieting all the rights of the respective parties.”</p> <p>The facts of the case are sufficiently stated in the award, which is as follows : —</p> <p>“The action is trespass for removing the foundations of a mill dam on Nashua River, near Pomkin Bridge, in Lancaster ; and the matter chiefly contested between the parties was the boundaries of a tract of land supposed to contain about ten square rods, consisting principally of the bed of the river.</p> <p>“ The river runs nearly from north to south, and the locus in quo is immediately south of the bridge.</p> <p>“ Israel Houghton being the owner of a farm upon the west bank of the river, the highway which crosses the stream at said bridge was laid out across the south-easterly angle of said farm, and severed therefrom the tract in question. In 1809, Israel Houghton, being then the tenant in fee of said farm, executed with Aaron Jones a deed of two parts, whereby he leased to said Jones, his heirs and assigns, all the land divided from said farm by said road, containing about ten square rods; and Jones was to keep up a grist mill thereon, so long as he improved the same. A mill was erected, and the premises, after having been several times conveyed, were in 1822 conveyed to the plaintiff, who became the tenant under the lease or agreement with Jones, and entered into and enjoyed the same in connection with a farm owned by him upon the east bank of the river. But the mill, having become dilapidated, ceased to be' used for a number of years, whereby the lease was terminated by its own limitation. The defendant, about this time, purchased the Houghton farm, together with the premises in question. The title to the estate being thus vested in him, he entered and removed a portion of the timbers of the dam which were west of the centre of the river; and this is the alleged trespass.</p> <p>“ The plaintiff admits that the defendant is the lawful owner of the premises covered by the lease, and had a right to remove any obstructions to the water thereon. But while he concedes this right, he denies that the whole or a principal part of the foundations of the mill and dam, as erected and maintained, are upon those premises; and in fact alleges, that a large portion of the site is lower down the river, and upon other land to which neither said Houghton nor his assigns had any right; and he further alleges that the portion of the site so below the leased premises is sufficient to enable him to maintain a dam thereon, and to raise a head of water suitable to work a mill. And he averred that he could _thus maintain a head of water independent of the lease, and had a right so to do, and to flow the land above, because he, and those under whom he claimed, had used and enjoyed this portion of the site for more than twenty years. These assumptions raised several questions, which were discussed by the parties, the principal of which related to the boundaries of the leased premises.</p> <p>“ It appears by the proprietors’ record of the survey of Houghton’s farm, made in 1738 — 9, that the description commences at a red oak tree by the river, above the red spring, and the line runs thence west twenty-one degrees north sixteen rods, to a white oak tree at the next angle. This red oak tree was the monument for the south-west angle of the farm, which was severed from it by the road. No vestige of either of these trees remains, but the fence is standing upon a large portion of this line of sixteen rods, and indicates distinctly the angle where the white oak stood. Following, therefore, from this point the general range of the fence, which is south sixty-eight degrees east, for sixteen rods, we came to what we consider to be the site of the red oak tree, and there set up a long slate-colored stone with a cross cut near the top. From this point, the plaintiff contended that the line should be extended to the thread of the stream, so as to intersect it at right angles therewith. The defendant, on the other hand, contended that it should be extended to the thread of the stream without change of course. Mr. Sawyer, one of the arbitrators, traced a line at right angles with the west bank, from the site of the red oak tree to the opposite bank. The course is north eighty-five degrees east, and it fell upon the north end of a large slate-colored rock lying Upon the sand, into which we cut a cross. We also traced from the same point the other line on the course south sixty-eight degrees east to the opposite bank, where we set into the earth, in a field, á stone with a cross cut at the top.</p> <p>“ The first mentioned of these lines across the river passes over the site of the mill and dam diagonally, but leaves the foundations entirely, and passes into the stream at or near to the centre or thread of the river. The other line does not touch the site of the original mill and dam, but cuts diagonally the foundations of a small building added thereto below the original site. The result is, that the line drawn according to the theory of the plaintiff does not exclude from the leased premises any such portion of the site of the mill and dam as would enable him to construct or maintain a dam thereon. The portion excluded is an acute-angled triangle, with the sharpest point towards the centre of the stream, but probably falling short of it; so that there would be, in that case, no union or connection between the portion of the site thus separated and the foundations of the dam east of the thread of the river ; but if it extends to the thread, no dam could be maintained upon it. The consequence is, that the plaintiff did not, independently of the lease, occupy land upon which he can now maintain a dam, and keep up a head of water suitable to work a mill</p> <p>“ But we are required to establish the boundary line between the parties, and this will be sufficiently complied with, by deciding which of the above lines from the site of the red oak tree to the centre of the river is the true line. It is a principle unquestioned, that if land is bounded on or by a river which is not navigable, the thread of the stream becomes the boundary; although the monuments are placed upon the bank, the law carries the grant to the centre. It supposes the monuments to be upon the bank, because they cannot be safely placed in the stream. They are in fact as near to the end of the lines as they can be, and when the law carries the grant to the centre, it in effect moves these monuments forward, in the course of the lines upon which they stand, to the points where they intersect the thread of the river. We find no authority which countenances a change of the course, or intimates that the thread of the stream is to be intersected at right angles. On the contrary, the case of Ipswich, Petitioners, 13 Pick. 431, supports fully the views which we take.</p> <p>“ We therefore award and decide as follows: —</p> <p>1. That the site of the red oak tree, which stood by the river, is where we placed a slate-colored stone about two feet long in the ground, with a cross near the top, which is sixteen rods from the angle in the fence where the white oak stood, and that the general range of the fence from the angle to said stone is south sixty-eight degrees east.</p> <p>2. That this line shall be continued straight upon the same course to the thread of the stream ; and if so subtended to the upper bank upon the opposite side of the river, it will come to a stone there set up by us, with a cross marked upon the top.</p> <p>3. This, we are of opinion, is the boundary of the defendant’s premises, from the site of the red oak tree to the centre or thread of the stream.</p> <p>4. That a line thus run does not exclude from the defendant’s premises any such portion of the site of the mill and dam, as would enable the plaintiff, by any structure thereon, to maintain or keep up a head of water to work a mill, and consequently that the plaintiff acquired no right to maintain a dam upon the foundations where the structure stood, or to flow the water back, except under the provisions of the lease.</p> <p>5. That the defendant, having a right to enter upon the premises after the lease expired, might lawfully remove therefrom any obstructions to the passage of the water; and if such obstructions consisted of timbers lying in part upon the premises of the plaintiff, still they might be lawfully removed, if in so doing no unnecessary damage was done to the plaintiff.</p> <p>6. We find no evidence tending to prove that unnecessary injury was done, and therefore find that the defendant is not guilty of the trespass set forth in the declaration.</p> <p>“ In compliance with a request made by the plaintiff’s counsel, we leave our decision of the legal question respecting boundaries open to the revision of the court, if we have authority so to do.”</p>

<p>The defendant was indicted and tried in the court of common pleas, before Ward, J., for the crime of perjury; and, being convicted, brought his case before this court, upon exceptions to the rulings of the judge at the trial.</p> <p>It appeared from the evidence, as stated in the bill of exceptions, that, some time in the year 1841, an action was instituted in the court of common pleas, by Samuel Farrar against Lemuel Parker, and that George F. Farley was summoned therein as the trustee of the defendant. The supposed trustee appeared and answered and was thereupon discharged. The defendant then entered a complaint before the grand jury, against Farley, for perjury alleged to have been committed by him in his answer as trustee; and the defendant' appeared and testified in support of his complaint. The indictment in the present case charged the defendant with perjury in his testimony so given before the grand jury.</p> <p>The facts, upon which this charge of perjury was predicated, so far as they are necessary to an understanding of the case, as presented in this court, will sufficiently appear by the following statement.</p> <p>Previous to the commencement of the action, in which Farley was summoned as the trustee of Lemuel Parker, there had been various dealings and transactions between the defendant and Farley of a pecuniary character, in consequence of which the latter had become the creditor of the defendant to a considerable amount. In this state of things, the defendant, upon being pressed for payment, procured a conveyance of certain real estate in Lowell from Lemuel Parker to Farley, to be held and disposed of by the latter, as security for the defendant’s indebtedness to him. This property was after-wards sold by an arrangement between the parties,- and the proceeds, amounting to $579, after paying off the incumbrances, were paid over to Farley, to be appropriated by him to the credit of the defendant. A settlement subsequently took place between the defendant and Farley, which, it was asserted on the one side and denied on the other, embraced and absorbed the funds thus received from the sale of the real estate. The inquiry, which was the subject of the trustee process, was, whether the funds derived from such sale had been so absorbed or not; if, as Farley alleged, the whole sum had been absorbed by the settlement, he was not liable therefor as the trustee of Lemuel Parker; if not so absorbed, he was liable as such trustee, for whatever might remain after payment of the defendant’s debt to him.</p> <p>In his answer, as such supposed trustee, Farley stated, that in pursuance of a previous agreement between the defendant and himself, he had appropriated the whole sum of $579, (with the exception of $20, paid directly to the defendant) in part discharge of demands which he had against the defendant ; and he further used this language : “1 know that I appropriated, paid over, or accounted to said Samuel for, all he money so received by me as aforesaid.” This statement, .n reference to the appropriation of the $579, was the subject of the defendant’s complaint against Farley, before the grand jury, for perjury.</p> <p>In his testimony before the grand jury, relative to this complaint, the defendant made an elaborate statement as to the transactions between himself and Farley, for the purpose of showing that the proceeds of the real estate above mentioned were not included in the settlement. The acting district attorney, Edward Mellen, Esq., then put the following question to him: “ Was there or not any contract or agreement between you and Farley for you to pay him more than six per cent on any contract or any of the contracts he has referred to ? ” The defendant first said, in answer, that he did not see what that had to do with the subject; but, upon the question being repeated in substance, the defendant answered: “No, there was not.” Mr. Mellen then inquired, “In any shape or in any form ? ” and the defendant replied in the negative. He then went on to enumerate the items of the setlement, in order to show from what sources it was made up.</p> <p>The indictment against the defendant charged him with perjury in his answer to the question piit by the district attorney, relative to the existence of any agreement between him and Farley for the payment of more than legal interest. The defendant made several questions in the course of the trial, upon which the court decided against him, which, with certain parts of the charge to the jury, were the subject of this bill of exceptions.</p> <p>1. Upon the evidence introduced and relied on by the government, in order to show the materiality of the testimony alleged to be false, the defendant moved the court to direct an acquittal, on the ground, that the questions and answers above stated were not material to the issue then before the grand jury. The court refused to allow this motion, but, after stating the facts, which the evidence tended to prove, ruled, that if these facts were true and proved, the questions and answers referred to were material. The statement made by the court, as appears by the bill of exceptions, was as follows: —</p> <p>“ That there was evidence tending to show, that between the years 1834 and 1841, inclusive, there had been pecuniary dealings between the defendant and Farley; that Farley had loaned to the defendant money for his own use, and had also loaned @1000, on a note signed by the defendant’s brother, Lemuel Parker, as principal, and by the defendant and others, as sureties, which note, in or about the year 1834, the defendant undertook to pay, as appears by his letter, and which, in the year 1835, was paid by a mortgage from Jewett, one of the sureties; that in the year 1835, the defendant procured and delivered to Farley an absolute deed of a house in Lowell from Lemuel Parker, as security for the defendant’s indebtedness ; that the defendant, at sundry times, also delivered to Farley the notes of third persons as security; that in the year 1837, the house in Lowell was sold, and the net proceeds, @579, were delivered to Farley; that in the year 1841, a settlement took place between the parties (the defendant and Farley) and that Farley took the defendant’s receipt in full of all accounts, and gave him about @62, as the balance then due to the defendant.</p> <p>“ There was also evidence tending to show, that on one or more of these loans, there was an extra interest or bonus paid or agreed to be paid by the defendant to Farley; that shortly after the settlement in the year 1841, a suit was brought by one Farrar against Lemuel Parker, in which Farley was summoned as Parker’s trustee, for the @579, the proceeds of the house; that Farley, as trustee, made his disclosure under oath, in which he stated, that by previous agreement between himself and the defendant, Samuel Parker, “he had appropriated, paid over, or accounted for, all the proceeds of the house ; ” that upon filing the answer Farley was discharged, and that Samuel Parker, the defendant, thereupon laid a complaint before the grand jury against Farley for perjury, in falsely making such answer.</p> <p>“ The defendant, before the grand jury, testified that Farley had never appropriated, paid over, or accounted for the proceeds of the house, by any arrangement or agreement between them ; and, in order to confirm this, he exhibited to the grand jury a statement, in which no extra interest appeared, of all the demands and dealings between them, to show that all Farley’s demands had been settled and paid from other sources; and that there were no demands to which he could have appropriated this sum of $579.</p> <p>“ That there was also evidence tending to show, that including the extra interest or bonus agreed by the defendant to be paid, his indebtedness would absorb a part if not the whole of the $579, and the other sums received by Farley; and that rejecting this extra interest, Farley would be indebted to Parker in the whole sum of $579.</p> <p>“ The defendant was then asked by the district attorney, whether or not there had not been an agreement between himself and Farley, by which he was to pay Farley extra interest or a bonus on any of these loans. To this the defendant answered in the negative. It was for his answer to this question, that the defendant was now on trial.”</p> <p>In charging the jury, at the close of the trial, the judge referred them to his ruling upon the motion above stated, for proper instructions as to the point of the materiality of the alleged perjury.</p> <p>2. The government having called Farley as a witness, he testified, among other things, that the defendant told him that there was a house in Lowell, that had been his brother’s, but that by some agreement, he (the defendant) could have a deed of it any day, and that he would place it in Farley’s hands as collateral security. The defendant called Lemuel Parker, as a witness, and offered to prove by him, in contradiction of Farley, that the defendant had no interest in or control of said house. This evidence being objected to, the court ruled that it was not competent for the purpose of contradicting the statement of Farley, it having no tendency to show what the defendant had or had not told him. The defendant thereupon urged that it was competent as tending to show, that in this respect the defendant had testified truly before the grand j'ury. But the counsel for the government then stated, that they did not rely on or intend to urge any falsity of the defendant upon this point. The court excluded the evidence.</p> <p>3. The witness Farley having testified as to the settlement made in the year 1841, and how it was made, the defendant, in order to contradict and discredit him, called Lemuel Parker, who testified, that after Farley’s discharge as trustee, he called on Farley, and, in conversation with him, told him that his statements about that settlement were not trite, and that the witness could prove them to be false by two papers, which he (the witness Parker) had at home, but of which he had copies then with him; that he then handed to Farley a paper on which were these copies; that Farley took the paper and seemed to read it, and said he guessed that would not make much difference to any body; and that the paper was left with Farley.</p> <p>■ The witness then produced the two papers, which he said were the originals of the paper he had handed to Farley, and the defendant proposed to read them to the jury, but this was objected to, and the papers were submitted to the inspection of the court. One of them was found to be a receipt, which was already in the case, and this was admitted. The other was a certificate of a certain conversation, signed by one Coburn; and this was rejected, on the ground, that it was merely secondary evidence of the paper delivered to Farley by the witness; it not appearing that that paper had been lost, or that Farley had been called upon to produce it.</p> <p>4. In order to prove the falsity of the words alleged as the perjury committed by the defendant, the government relied on one witness, and on certain letters and writings of the defendant which were proved, and were also admitted to be his by his counsel. The testimony of this witness, (Farley,) as to the falsity of the defendant’s statement, was as follows: “ There was an agreement between me and Mr. Samuel Parker, that he should pay me a bonus or extra interest. This was on several demands. He agreed to pay me for raising the money for him, and when he came to owe me, he promised to pay extra interest for the delay.” The contents of the letter relied on are stated in the opinion of the court. In charging the jury, the judge directed them, that, upon this point, (the falsity of the alleged perjury,) one witness, however credible, was not sufficient; but that the evidence of one witness, if believed by the jury, and strongly corroborated by letters or writings of the defendant, admitted to be his, would be sufficient to justify a conviction.</p> <p>The above enumerated rulings and directions of the judge at the trial were the grounds of the defendant’s exceptions.</p>

<p>This was a bill in equity, filed on the 23d of March, 1844, for a conveyance, or compensation for the value, of certain land therein described. The case, as it appears from the report of Hubbard, J., before whom it was heard, was as follows:—</p> <p>Augustus Peabody and John Tarbell, being the joint owners of a promissory note, made by Robert Douglas, on the 25th of August, 1809, and payable to William Porter, or order, they commenced suit thereon, against both Douglas and Porter, on the 22d of February, 1810, in the name and with the consent of Sampson Tarbell, the defendant, and recovered judgments in both suits at the March term of the court of common pleas, in 1810. The judgments not being satisfied, the creditors, in the year 1820, commenced an action on that against Porter, which was for $69-98, damages, and $7-58, costs, and attached thereon a piece of land as belonging to Porter. Judgment was recovered in this action, at the March term of the court of common pleas, 1820, in the name of Sampson Tarbell, for $125-30, damage, and $8-28, costs; and, on the 3d of April following, and within thirty days after the rendition of the judgment, the land attached (being the land described in the plaintiff’s bill) was levied on as the property of Porter, in the name of Sampson Tarbell; and John Tarbell, for himself and Peabody, took possession of the same as the attorney of Sampson Tarbell, the judgment creditor of record under a power of attorney from him. The land was appraised at $147-58, being the amount of the judgment and the costs of the levy. The suit upon which this judgment was rendered, was commenced without the knowledge of Sampson Tarbell, but the levy was with his knowledge and consent.</p> <p>John Tarbell, upon the land being levied on as above mentioned, went into possession of the same, fenced, and improved it, and remained in the occupation thereof, until he removed to Peppered, in the year 1834. Sampson Tarbell, at some time between the year 1837 and the year 1843, but when was not proved, took possession of the land, and, in May, 1842, being an assistant assessor, requested that the land in question should be taxed to him, which was done for that year only. Who paid the taxes after the year 1837, did not distinctly appear, but John Tarbell stated in his deposition, that he paid them up to and including the year 1841.'</p> <p>The defendant admitted by his answer, that he was not the owner of the judgment, to satisfy which the levy was made, and that he paid no part of the costs or expenses attending the suits, or the levy; that Peabody and John Tarbell, in the year 1831, requested him to convey the land to them, and offered him a deed to sign for that purpose ; that he then admitted that he had never paid any consideration for the premises, but refused to execute the deed, because, as he said, John Tarbell had unjustly refused to pay him for certain work and labor for which he owed him ; that, a few years afterwards, Peabody made a further demand on him for a release, but the time when was not proved; that, on the 17th of March, 1842, John Tarbell (without the knowledge of the defendant) conveyed his interest in the land to his son, Edmund P. Tarbell, one of the plaintiffs; and that on the 3d of April, 1843, the defendant, Sampson Tarbell, by deed, sold and conveyed his right and title in and to the premises to one Samuel Slocomb, as he alleged, for the sum of $300, but without giving the plaintiff any notice of such sale and conveyance.</p> <p>The defendant set up three grounds of defence, first, that the plaintiff had an adequate remedy at law, either hy writ of entry, to recover the estate, or by an action for money had and received; and, second, the statute of frauds.</p> <p>As his third ground of defence, the defendant alleged, that Porter had no title to the land levied on, at the time of the attachment and levy, but that it had been previously mortgaged by him to William Watson, in January, 1805; that, in May, 1810, Watson entered for condition broken, and died in 1811; that, afterwards, in May, 1813, Josiah Moore, the administrator of Watson’s estate, sold and conveyed Watson’s interest in the premises to Jonas Wyeth; that Wyeth died in 1817, and the land in question, being set off to his son, Jonas Wyeth, was conveyed by him, on the 1st of April, 1843, to Samuel Slocomb.</p> <p>No evidence of possession, except by the recital in Moore’s deed to Wyeth, was shown to have been had by Moore, and none by Wyeth or his son. The plaintiff denied the validity of the deeds introduced by the defendant to show an outstanding title, especially the deed from Moore to Wyeth.</p> <p>The defendant alleged, in his answer, that John Tarbell removed to Pepperell, according to his belief, in 1833, and relinquished possession of the land, which he had previously held from the time of the levy in 1820, and that the defendant, finding the same unoccupied, took possession thereof, fenced and improved the land, and paid taxes thereon, until he sold to Slocomb, in the year 1843.</p> <p>The defendant paid no consideration for the premises, and claimed no title through Watson or Wyeth, nor any title, except through the levy made for the use of Peabody and John Tarbell.</p> <p>The land was worth much more than the debt and interest, to satisfy which it was taken in execution.</p> <p>The plaintiffs claimed a conveyance of the land, or compensation in damages for the value of it; and, if not entitled to that, they then claimed their debt, with compound interest, or annual rests.</p> <p>Before the filing of the bill, the plaintiffs demanded of the defendant a release of the land, or payment of the value thereof, or of the sum which he received of Slocomb therefor ; but the defendant refused to comply with either of these requests.</p>

This was a bill in equity for the foreclosure of a mortgage.

<p>This was an action of trespass, originally commenced m this court, by a writ dated the 20th of May, 1842, against the defendant, as the sheriff of the county, for the taking and carrying away of a stock of dry goods, and other personal property enumerated in the writ, by Jefferson Bancroft, his deputy; and was submitted to the court upon an agreed statement, from which the following facts appeared: —</p> <p>On the 25th of April, 1842, Charles Maynard was the owner of the stock and property in question ; and the plaintiff held two notes signed by Maynard, which had then become due and payable, and also Maynard’s written agreement to indemnify him against a note held by Herman Bass, on which the plaintiff and Maynard were jointly liable. On the same day, Maynard, for the purpose of preventing an attachment of his property, and also to secure and indemnify the plaintiff, at the plaintiff’s request, gave him a mortgage of the stock of goods and other property, which were the subject of this action. The mortgage provided, amongst other things, that in case of a breach of the condition, the plaintiff should have a' right to take immediate ■ possession of and sell the property.</p> <p>The mortgagor continued his business until the 10th of May, 1842, when he gave a second mortgage of the same property to Hazen J. Burton, a creditor residing in Boston; and, on the 12th of the same May, the second mortgagee being about to take possession, the plaintiff demanded of the mortgagor the performance of the condition of his mortgage. The mortgagor failing to comply with this demand, the plaintiff took actual possession of the mortgaged property, and was proceeding to make arrangements for a sale thereof, agreeably to the terms of the mortgage, when, on the 16th of the same month, the defendant’s deputy, Bancroft, (having a bond of indemnity from the attaching creditors,) attached, took and carried away the property, by virtue of two writs, in favor respectively of Charles Arnold & company, and of Joseph C. Hicks. On the 17th of the same May, the plaintiff made a statement in writing, in due form of law, to Bancroft, of his claims upon the property attached, and demanded payment and discharge of the same within twenty-four hours ; with which demand Bancroft then and ever since has neglected to comply. At the next June term óf the court of common pleas, to which these writs were returnable, Bancroft made return of them with his doings in pursuance of the same endorsed thereon; and they were duly entered, and continued from term to term, until the September term, 1843, when the plaintiffs therein became nonsuit.</p> <p>On the 19th of May, 1842, the attaching creditors, Hicks and Arnold &. company, presented a petition to the district court of the United States, for the district of Massachusetts, setting forth that Maynard had given the mortgages above mentioned; that the same were without consideration and for the purpose of defrauding creditors; that they were executed in contemplation of bankruptcy, and with a view to give the mortgagees a preference or priority over the other creditors of the mortgagor; and praying, that for that cause, Maynard might be declared a bankrupt under the bankrupt law of the United States. This proceeding was resisted, on the part of Maynard, but without effect: and he was adjudged by the district court and decreed a bankrupt on the 21st of October, 1842. From this decree, Maynard appealed to a jury, who, after a full hearing of the matter, found the mortgage (to Burton) of the 10th of May, 1842, to have been given in violation of the bankrupt law, but were unable to agree as to the plaintiff’s mortgage. Maynard was thereupon again declared a bankrupt, on the 20th of December, 1842, and on the 2d of January following, the defendant’s deputy, Bancroft, was duly appointed his assignee.</p> <p>• On the 26th of January, 1843, Maynard, at the request of Bancroft, made upon oath and delivered to the latter a schedule of his property and effects, which Bancroft filed in the proceeding in bankruptcy. Bancroft having obtained from the district court a license to sell the property of the bankrupt, made a sale of the goods and property embraced in the plaintiff’s mortgage, about the 1st of March, 1843, — professing to act therein as assignee under the license of the court, — and the proceeds of the sale were subsequently distributed amongst the creditors, in pursuance of an order of the district court.</p> <p>On or about the 22d of August, 1843, Bancroft, in his capacity of assignee, presented a petition to the district court, setting forth, among other things, the giving of the mortgage by Maynard to the plaintiff; that it was given without consideration, in contemplation of bankruptcy, and for the purpose of securing a priority or preference, in favor of the plaintiff, over the other creditors of Maynard; that Maynard had been duly declared a bankrupt, and that the petitioner had been appointed assignee of his estate; and praying that the mortgage might be decreed void, as being fraudulent under the bankrupt law, and that it should be delivered to the petitioner, as assignee, to be cancelled. The p.laintiff appeared and made answer to the petition, objecting to the jurisdiction of the court, and denying the power thereof, for reasons set forth in the answer, to grant the prayer of the petitioner. But the court overruled the plaintiff’s objections, and such proceedings ensued thereupon, that, on or about the 1st of September, 1846, the district court declared the mortgage to be null and roid, as made in contravention of the bankrupt law, and ordered the plaintiff to deliver the same to the assignee or his attorney, to be cancelled. The mortgage was then on the files of the district court, where it still remains.</p> <p>On the 24th of May, 1842, an injunction from the district court was served upon the plaintiff and Burton, the mortgagees, whereby they were enjoined from further proceeding with their claims, as such, against the mortgaged property, which was then attached and in the possession of the defendant’s deputy, Bancroft.</p> <p>The parties agreed, that the validity of the plaintiff’s mortgage, as at common law, and in the absence of any bankrupt law, was not to be called in question in the argument and decision of the cause, under the statement of facts; the defendant insisting that the same was void, as against the bankrupt law, and that the proceedings and decree of the district court, annulling the same, were valid and effectual for that purpose, so far as this action was concerned; and the plaintiff denying the validity of the proceedings in bankruptcy, so far as regarded his mortgage, and their effect to impair the same, or his right to recover in this action; and alleging that the proceedings and decree of the district court, in this behalf, were not admissible in evidence, on any ground, in defence of this action.</p> <p>The case was argued in writing at a previous term.</p>

<p>This was a bill of interpleader brought by the plaintiff, as the executor of the last will and testament of Jenny Little, who died on the 2d of July, 1845, against the defendants, who were her heirs at law, and the devisees, legatees, and appointees under her will.</p> <p>The will, which was executed on the 30th of May, 1845, contained the following provisions : —</p> <p>“ First. After paying all just debts and funeral charges, and erecting suitable stones at my grave, I give and bequeath to Lois Bartlett, 2d, the use of the house in which I now reside, for the space of one year from my decease, if it shall at my decease be in my possession ; if not, I hereby direct and authorize my executor hereinafter named to procure a comfortable tenement, for the above specified time, for thy use of the said Lois; and in either case, I hereby direct my executor to furnish her with a cow, with suitable feed and fodder; also to furnish her with firewood prepared for use, with all necessary provisions, together with soap and candles sufficient for her use for the space of one year.</p> <p>“ Second. I give and bequeath to the above named Lois the use of seven hundred dollars during her natural life.</p> <p>“ Third. I give and bequeath to the Rev. Hope Brown, the late pastor of the church of which I am now a member, the sum of nine hundred dollars.</p> <p>u Fourth. I give and bequeath to my cousin, Betsey Kelsey, one hundred dollars.</p> <p>“ Fifth. I give and bequeath my household furniture and wearing apparel, in equal shares, to Betsey Kelsey and Lois Bartlett above named.</p> <p>“ Sixth. I give and bequeath to the Evangelical Congregational Church in Lunenburg, of which the Rev. Eli W, Harrington is now pastor, the use of five hundred dollars, the annual interest of which is to be appropriated for the support of evangelical preaching, by such ministers as shall be approved by a majority of the members of the Middlesex Union Association.</p> <p>“ Seventh. If, after paying the above specified legacies, there shall be any portion of my estate remaining, I give and bequeath the same for the promotion of such religious and charitable enterprises, as shall be designated by a majority of the pastors composing the Middlesex Union Association. I also give the seven hundred dollars, appropriated to the use of Lois Bartlett above named, during her natural life, at her decease, to be appropriated in the same manner; and I further direct, that if the church in Lunenburg above named shall appropriate the amount left to it contrary to the directions above specified, or if it shall neglect to sustain the preaching of the gospel for the space of twelve successive months, then the amount appropriated to the use of the said church shall be appropriated to the use of other religious and charitable enterprises as before specified.</p> <p>''Eighth. I hereby appoint Maj. William Brown, of Lunenburg, the executor of this my last will and testament, equesting him to settle my estate as soon as practicable after my decease, and to see that the bequests specified under the second, sixth, and ninth specifications in this instrument are safely vested, and that my directions in relation to the same be strictly complied with.”</p> <p>In pursuance of the authority conferred by the will on the pastors composing the Middlesex Union Association, that body held a meeting at the late residence of the testatrix, on the 7th of April, 1846, and made the following appointments, by an instrument in writing, signed by a majority of the pastors composing the association, namely: —</p> <p>“ To the Orthodox Congregational Society in Shirley, the homestead of the testatrix, the same being the dwelling-house which she last occupied, with the out buildings, and about nine acres of land under and about the same, situated near the middle of Shirley; meaning that the annual income thereof shall be appropriated for the support of orthodox evangelical preaching, by such ministers as shall be approved by a majority of the pastors of the Middlesex Union Association; provided, that if the society shall appropriate the income contrary to this direction, or shall neglect to sustain the preaching of the gospel for twelve successive months, then the whole of the homestead shall be given to those societies, and in those proportions, hereinafter named and specified, in reference to the residue of the estate of the testatrix, that is to be appropriated to religious and charitable enterprises, according to the judgment of the undersigned.</p> <p>“Of the remainder of the estate, both real and personal, together with the legacies as.they shall become applicable, to the American Board of Commissioners for Foreign Missions, two fifths; to the Massachusetts Home Missionary Society, two fifths; and to the American Education Society, one fifth.”</p> <p>The bill set forth the execution of the will, the death oí the testatrix, the probate, the appointment of the executor, and his acceptance of the trust; that there was a surplus of personal property after paying all charges, debts, and legacies; that in the eighth clause of the will, the word “ninth” was used by mistake for the word “ seventh ; ” that the heirs at law of the testatrix were her cousins, who were made parties defendant; and that the testatrix died seized of three parcels of real estate, namely, the homestead, three undivided thirteenth parts of another parcel of land in Shirley, and a tract of land in Lunenburg.</p> <p>The bill then alleged, that the Middlesex Union Association had made the appointments above specified, under the power given by the will, in conformity with the direction, and in pursuance of the authority contained in the will; that the devisees and legatees, and the corporations, to whom the residue was appointed, had been made parties defendant; that doubts had arisen as to the construction of the will, and adverse claims had been set up by the heirs at law and devisees and appointees ; and that the plaintiff could not execute the trusts of the will without the direction of the court.</p> <p>The plaintiff therefore prayed that the defendants might interplead, and set forth the following points in reference to which doubts had arisen : —</p> <p>1. Whether the sum of seven hundred dollars was to be invested and held by the executor, the principal being at the risk of Lois Bartlett, or whether the executor should pay her forty-two dollars a year out of the estate.</p> <p>2. Whether the principal of the bequest to the Evangelical Congregational Church in Lunenburg should be paid to the deacons thereof, or the amount invested by the executor, and the income only paid to the deacons.</p> <p>3. Whether the real estate of the testatrix was disposed of by the will; whether the homestead vested specifically under the will and appointment in the Orthodox Congregational Society in Shirley, or whether the executor might sell the real estate; whether, on a sale thereof, he should pay over any part of the principal proceeds thereof to such society, or only the income arising therefrom ; and whether the appointment vested any estate in the corporations to whom the residue was appointed.</p> <p>4. Whether the expense of managing the funds bequeathed in the second and sixth clauses of the will was to be paid out of the residue of the estate.</p> <p>The bill then prayed, that the executor might have leave to sell the real estate and dispose of the proceeds under the direction of the court.</p> <p>Several of the heirs at law, and the legatees and appointees, appeared and answered; admitting the facts alleged in the bill, and asking the judgment of the court on the questions thereby raised. As to the other parties, the bill was to be taken as confessed.</p>

<p>The act of 1788, c. 68, to prevent the destruction of the fish called shad and alewives in Mystic River,” within certain towns, conferred upon the committees, chosen by such towns, in pursuance of its provisions, power and authority to cause the natural course of the said river, and the streams running into it, to be kept open and without obstruction; to remove all such obstructions as might be found therein; to make the passage way wider or deeper, if they should find it necea* sary; and, for such purposes, to go on the land of any person, bordering on the said river or streams, without being considered as guilty of a trespass, and to remove across such land any such obstructions, implements or tools, as might in any way impede, obstruct or hinder any fish from freely passing up and down said river or streams, otherwise than as provided in the act. In an action of debt, to recover a penalty under this statute, it was held, that the obstructions prohibited by it were such as should impede, obstruct, or hinder the passage of the fish; and that whether such obstruction existed or not was a question of fact, tc b» decided by the jury, in each particular case.</p>

<p>This was a bill in equity for the redemption of certain mortgaged premises therein described.</p> <p>The plaintiff alleged in his bill, that Staples, one of the defendants, on the 3d of November, 1837, conveyed the land' described therein to one Crosby, in fee, and that Crosby, at the same time, gave Staples his bond to reconvey the same to Staples, on the payment by the latter to him of the sum of $200, with interest, whereby the deed to Crosby became a mortgage ; that, on the 6th of March, 1838, Staples’s right of redemption was attached, and afterwards, on the 20th of August, 1838, sold and conveyed, according to law, to the plaintiff, whereby he became seized of all Staples’s interest in the land ; that Staples had not then transferred but still held Crosby’s bond to him, and the plaintiff held the land subject to the mortgage to Crosby; that the plaintiff brought a writ of entry in the court of common pleas against Staples, to recover possession of the land, on which he had judgment for possession, at the September term, 1839, on which a writ of possession issued, October 18th, 1839; that Staples refused to account for the income, or to permit the plaintiff to have possession, of the premises, and the writ of possession was never served ; that .Staples pretended that the plaintiff had no title, that Crosby’s title was absolute, and that the bond had been assigned before the attachment; that the plaintiff believes that Staples did assign the bond to one Edwards, but that the assignment was made long after the attachment, and without consideration, for the purpose of defrauding creditors; that, on the 25th of April, 1839, Crosby released his interest in the premises to Edwards, and Edwards, on the 21st of October following, by deed of warranty, conveyed the same to Staples, who, on the 29th of September, 1842, conveyed his interest to Thomas C. Cutler, the other defendant; that Cutler, before and at the time of the conveyance to him, knew that the plaintiff had “ a ful. claim ” to the premises, and that Staples had no right therein, except as the assignee of the mortgage to Crosby, and as the fraudulent assignee of the bond; that Staples received the rents of the _estate from the 20th of August, 1838, to the 29th of September, 1842, and that Cutler had received them from that time to the time of filing the bill.</p> <p>The plaintiff then averred, that he had ever been ready to pay Staples and Cutler, or either of them, the sum due on the mortgage, deducting the rents, &c., and prayed that the defendants might render an account of the rents, &c., and of the sum due on the mortgage, and discharge the same, and convey the premises to the plaintiff</p> <p>Henry H. Staples, one of the defendants, demurred to the bill, first, because the plaintiff had not stated a case which entitled him to relief in equity; second, because the case made by the bill was founded on a direct charge of fraud and perjury; and, third, because Staples ought not to have been made a party to the bill.</p> <p>Thomas C. Cutler, the other defendant, filed an answer, in which, among other things, he set forth, that, on the 29th of March, 1843, he mortgaged the premises to John Bacon and Nathaniel C. Cutler, to secure the payment of his note to them for five hundred dollars, in one year, with interest; that, on the 11th of April, 1843, he again mortgaged the same estate to Hannah Paine, to secure the payment of his note to her for two hundred dollars, in one year; that neither of said notes and mortgages had been paid or assigned ; and he insisted, that the mortgagees ought to have been made parties to the bill. And, in order to obtain the opinion of the court upon the question, it was agreed, (for that purpose and no other,) that the defendant Cutler did make and deliver the notes and mortgages, as set forth in his answer, and the parties prayed the judgment of the court, if the mortgagees should have been made parties to the bill.</p>

<p>Where a husband made a conveyance of his wife’s real estate, in fee, with the usual covenants of warranty, and the wife joined in the execution of the deed, “ in token of her relinquishment of her right of dower in the premises,” and the grantee and subsequent purchasers under him occupied the estate so conveyed, and exercised the ordinary acts of ownership upon it for more than twenty-nine years without any claim or interruption, on the part of the wife or her heirs: — it was held, 1st, that these facts were not sufficient to authorize the presumption of a grant from the wife or her heirs; and, 2d, that her heirs were not thereby estopped to deny, that the title in fee was not in the husband, at the time of making such conveyance.</p> <p>The demandant in a real action can only recover on a legal and not on an equitable title.</p>

<p>Parol evidence, though not admissible to add to or vary the terms of a written con tract, is admissible to prove facts and circumstances, as to the relations of the parties, and the nature, quality, and condition of the property, which is the subject of the contract; and also the acts of the parties at and subsequent thereto, for the purpose of showing their understanding of its terms.</p> <p>Where an action of indebitatus assumpsit is brought for goods sold under a special agreement, the terms and conditions of which have been complied with, it is immaterial, whether the contract of sale were a single stipulation, disconnected with all others, or a separate and independent stipulation, embraced in the same contract with others.</p> <p>In an action of indebitatus assumpsit, for goods sold and delivered, the plaintiff introduced in evidence a written memorandum, signed by the defendants, from which it appeared, that the defendants were to take the plaintiff's leasehold premises and machinery, at a certain stipulated rent, and upon other terms stated in the memorandum, and the stock therein, consisting of unfinished carpets, yarn, at certain stipulated prices; that the plaintiff should not, during the time of the lease, engage directly or indirectly in the manufacture of any such carpeting as he was then engaged in making; that the defendants should take possession on the 1st of March; and that all carpets in the looms should be taken at the estimate for yarns, adding for scouring, coloring and weaving. The plaintiff also introduced parol evidence to show, that he had mills where he manufactured carpets, and the defendants had mills near his, where they manufactured yarns; that on the 1st of March, 1847, and the following days, two persons on the part of the plaintiff, and two on the part of the defendants, were employed in taking an account of the stock in the plaintiff’s mills, and in making a schedule thereof, which, when examined by the defendants’ superintendent and found to be correct, was sent to the defendants about the 17th of March; that the defendants, between the 10th and the 17th of March, took possession of the plaintiff’s mills, and proceeded to work in two of them, and shut up and locked and took the key of the third; that the superintendent and workmen, who were previously employed by the plaintiff, were employed and paid by the defendants, after they so took possession; that carpets were made in the mills by the defendants, from materials taken by them of the plaintiff, and were sold by the defendants on their own account; that a quantity of wool, included in the schedule, which had been previously purchased by the plaintiff, but had not been removed by him to his mills, was sent to the defendants and used by them; and that on the 20th of March, the two mills which the defendants were so occupying, with some of the stock therein, were destroyed by fire. It was held, that the stipulation on the part of the defendants, to purchase and pay for the stock, &c., was distinct and independent of the performance of the stipulations on the part of the plaintiff, as to the lease, &c.; that, upon taking possession of the premises, and making a schedule of the goods, &c., by the agents of the parties, the defendants became liable to pay therefor, at the prices agreed; that the contract was divisible, so far as performance and the right to recover for non-performance were concerned; and that the plaintiff might recover for such goods, in an action of indebitatus assumpsit for goods sold and delivered.</p> <p>If there be an agreement between two parties, on the one side, to take leasehold premises at a certain rent, and the stock and materials therein at certain agreed prices, and, on the other, to assign the lease by an instrument in writing; and the purchaser voluntarily enter upon the premises, without such assignment, and hold the same without interruption or disturbance; the making of such written assignment cannot then be insisted on as a condition precedent, the performance of which is necessary to entitle the seller to recover payment for the goods.</p> <p>Where an action was brought to recover for goods sold and delivered, which had been insured by the plaintiff before the alleged sale, and were afterwards destroyed by fire, and the plaintiff’s right to recover therein was disputed, on the ground, that a sale of the goods had not been perfected, at the time of the loss, and the defendant having introduced evidence, that shortly after the fire, the parties had agreed to refer the plaintiff’s claim for the goods to arbitrators, introduced a paper signed by both parties, which he alleged was an agreed statement of the facts in the case, prepared with a view to the reference, and the plaintiff thereupon introduced evidence to show, that shortly after the loss, the parties had prepared a statement to be laid before the insurers, with a view to claim the amount insured by the plaintiff’s policy, it was held, that it was rightly left to the jury to decide, from the evidence before them, whether the statement was prepared with a view to a reference, or for the purpose of the application to the insurers, and also whether it was obtained by the defendants from the plaintiff, by disingenuous means or for any sinister purpose; that if the paper imported all that was contended for by the defendants, it did not estop the plaintiff to say, that any admission, which it contained, was inadvertently erroneous; and that if any thing therein admitted by the plaintiff was not true, he might so prove unless he had intended to deceive the defendants.</p>

<p>This court have no appellate jurisdiction, under the insolvent act of 1838, c. 165, j 3, of an application by a mortgagee for a sale of the mortgaged property, and an appropriation of the proceeds towards payment of his debt; but under $ 18, of the same statute, they have original jurisdiction to hear and adjudicate upon the application of a mortgagee, under § 3 $ and, therefore, where a petition was presented to this court, praying a revision of the proceedings of a master in chancery, in relation to such an application, on the ground, that the petitioner had appealed from the adjudication of the master thereon, and it appeared, that the petition had all the characteristics of an original proceeding, the court entertained jurisdiction and adjudicated upon it accordingly.</p> <p>Where a minor entered into a partnership with a person of full age, which was dissolved before the former became of age, and, upon the dissolution, the minor assigned all his interest in the concern to the other partner, who, in consideration thereof, gave the minor his promissory note for the amount of such interest, secured by a mortgage of the partnership property, and such partner afterwards became insolvent, it was held, that the mortgagee might proceed under the act of 1838, c. 163, § 3, in order to have the mortgaged property sold towards payment of his debt, notwithstanding his minority at the time of the transaction.</p> <p>If the application of a mortgagee, under the insolvent act of 1838, g. 163, § 3, for a sale of the mortgaged property by the assignee of the mortgagor, be resisted oa the ground, that the mortgage is fraudulent, as having been made to delay or defeat creditors, or with a view to give the mortgagee an unlawful preference, it is not sufficient, in the answer to such application, to aver the fraud or preference in general terms, but the same must be set forth particularly, and all the evidence in support thereof laid before the court in some form.</p> <p>A mortgage being made of all the goods, &c., then in the mortgagor’s store, and of all goods, &c., which might be afterwards substituted by the mortgagor for those which he then possessed,—the mortgage providing that until default the mortgagor might use and make sales of the mortgaged property, other goods, &c., of equal value being substituted therefor, — it was held, that the mortgage could not apply to goods not in existence, or not capable of being identified, at the time it was made, or to goods intended to be afterwards purchased to replace those which should be sold.</p> <p>An agreement, in a mortgage of the stock of goods then in the mortgagor’s store, that, until default, the mortgagor might retain possession of the property, and make sales thereof in the usual course of his trade, other goods of equal value being substituted by him for those sold, will not authorize the mortgagor to put the mortgaged property into a partnership, as his share of the capital.</p> <p>Where the mortgagee of personal'property commenced a suit for the debt secured thereby, and caused the mortgaged property to be attached and held by the officer until the mortgagor took the benefit of the insolvent law, and then waived the attachment, and allowed the property to be taken into the custody of the messenger, it was held, that the mortgagee was not thereby precluded from availing himself of his mortgage, under the third section of the act of 1838, c. 163.</p>

<p>This was a writ of entry to recover four acres of land in Groton, described by metes and bounds. The tenants pleaded the general issue, and specified as a further defence, a disclaimer and non-tenure as to all the demanded premises, except about thirty feet square thereof, described in the specification by metes and bounds, and to which they claimed title, both to the land in fee simple, and also to an easement in the same for the purpose of maintaining and keeping thereon a town pound, for the use of the town of Groton, by an adverse uninterrupted peaceable possession for more than twenty years, and also by force of a grant, which they alleged had been made by the owner of the land in the year 1815, and had been since lost.</p> <p>The defendants, at the trial before Metcalf, J., introduced evidence tending to prove, that they had built a town pound on said thirty feet square in the year 1814, and had been in possession of it ever since, using it as a town pound, without any claim of rent or title, or objection from any one, until the year 1840, when they were ordered by the demand-ant’s grantor to remove it. They also introduced evidence that prior to 1814 they had erected a pound partly on another portion of the premises demanded in the writ, and that the first pound on the site last mentioned was erected in the year 1665, and was ever afterwards kept up and used in the same place until the year 1814, when it was removed to the place now claimed by the demandant; that when the old pound was removed, the person under whom the demandant now claims took possession of a large portion of the land on which it stood; that he and his grantees had occupied it ever since, and that it was still in possession of the demandant. The tenants contended that they owned the land on which the old pound stood ; and that the consideration of the grant (which they alleged to be lost) of the site of the new pound, in 1815, was the giving up to the owner of the demanded premises the site occupied by the old pound.</p> <p>Among the title deeds, under and through which the demandant claimed, was one from Jepthah Richardson to David and William Child, dated May 3d, 1796, while the old pound was standing, describing the conveyed premises as “ near to and comprehending a part of the town pound,” and at the end of the description, excluding “a shoemaker’s shop standing on a part of the premises and also the town pound.” The tenants contended, that the effect of this deed was to exclude from the conveyance not only the structure but also the land which it enclosed, or the right to occupy it for the purpose of a pound, and so was evidence to show, that the then owners of the premises demanded in the writ admitted the ownership or right in the town to the site on which the old pound stood. But the court ruled, that the effect of the conveyance was not to exclude the land enclosed within the pound, or the right of the town to use the enclosed land for the purpose of a pound, but only to exclude the structure of the pound.</p> <p>The demandant also introduced a deed, under and through which he claimed title to the site occupied by the new pound, from himself and one Fowle, executors of David Child to Joel Haskell, dated November 12th, 1839, in which the premises demanded in the writ were described as follows: “ The following real estate, to wit, the homestead farm late the residence of said deceased, subject to a mortgage ” (describing it) “ and containing four acres, be the same more or less, with all the buildings thereon, and appurtenances thereunto belonging, excluding however the common pound belonging to the town of Groton, or the right which said town now have to set their pound thereon.” Then followed a description by metes and bounds, enclosing the place where the pound stands. This deed also contained covenants, not only that the executors had a right to sell, and had done all things obligatory on them before selling, but also against all claims under their testator, except the mortgage before mentioned.</p> <p>The demandant contended, and offered evidence tending to prove, that in 1814, the town pound was erected upon the demanded premises by the tenants, under a license and with the consent of David Child, who then owned the premises, and were suffered by Child and those claiming under him to remain there under the same license until the year 1840, when the license was revoked.</p> <p>The tenants contended that the legal effect of the deed of. November 12th, 1839, was either to exclude from the conveyance the land enclosed in the pound, or to convey the land subject to a right or easement in the tenants to use it for the purposes of a pound; and that this being the deed. through and under which the demandant claimed in this action, he was not entitled to recover.</p> <p>The court declined so to rule,' but ruled that under that deed the demandant could recover in this action; if at the time of making it the title of the testator’s heirs or devisees, or of the grantors, as his executors, to the land enclosed by the pound, was paramount to that of the tenants.</p> <p>No evidence of any disseizin by the tenants of any part of the demanded premises, except the said thirty feet square, was offered by the demandant, and no exception was alleged to the instructions given to the jury on the subject of adverse and permissive possession, and a lost grant. a</p> <p>The jury returned a verdict for the demandant.</p> <p>A question was made and reserved, as to the form of the verdict, but it was waived on the argument.</p> <p>A new trial is to be granted, or judgment is to be entered on the verdict, as shall be ordered by the whole court.</p>

<p>A note not negotiable, signed by M. & P., and payable toF., T. & company, who were partners, was indorsed in the name of the firm by T., and disposed of by him to A. & company, for its full value: In an action on the note by A. & company against F., T. & company as guarantors, it was held, that if the plaintiffs, when they received the note, knew that it was obtained of the defendants by false representations made by M., or that T. signed the name of the firm, without the consent of his partners, merely for the accommodation of M. and P., the plaintiffs could not recover, unless, in the latter case, the act of T. had been afterward* ratified by his partners.</p> <p>The maker or indorser of a note for a particular purpose takes the risk of its being used in a different manner, and is liable to pay it to any bona Jide holder into whose hands it may come.</p> <p>'The holder of a note not negotiable, which is indorsed by the payee, may sue the latter as an original promisor, or as a guarantor.</p> <p>One partner cannot, by his individual act, bind the firm as the guarantor of the debt of another, or as a party to a note or bill made for the accommodation, or as the surety, of another, without authority specially given him for the purpose, or implied from the common course of business of the firm, or from the previous course of dealing between the parties; unless the act of such partner be afterwards ratified by the others.</p> <p>In an action against a firm, as the guarantor of the debt of another, or as a party to a bill or note made or indorsed for the accommodation or as the surety of another, where the contract is the act of an individual partner, the burden of proof is on the plaintiff to show, that such partner was authorized so to bind the firm by the others, or that they subsequently ratified his act. A precedent authority, for such purpose, may be implied from the common course of business of the firm, or the previous course of dealing between the parties. A subsequent ratification may be inferred from the acts or omissions of the other partners, after they know, or have the means of knowing, of the act of such individual partner.</p>

<p>This was an action on the case against the defendant, as an attorney and counsellor at law, for negligence in conducting the business of the plaintiff.</p> <p>The declaration was as follows : —</p> <p>“ In an action of the case, for that the plaintiff, on the (blank) day of July, in the year eighteen hundred and forty-two, being the owner and holder of two certain notes and accounts against one George Purrington, indorsed by the father of said Purrington, to wit, James Purrington, which notes and accounts were then and there due, and the property of the plaintiff, and the defendant being then and there, to wit, at New Bedford, in the county of Bristol, a practising attorney and counsellor at law, in which said county of Bristol the said George Purrington and James Purrington resided, which notes and accounts were of the amount of $212-63, delivered the same notes and accounts to the defendant, he being a practising attorney and counsellor in the said county of Bristol, to be by him collected and paid over to the plaintiff, and then and there employed and retained the defendant, for a reasonable fee or reward to be paid him by the plaintiff, in his said capacity of attorney, to use all necessary care and fidelity in collecting said demands, and especially to commence a suit against said George Purrington, and to secure the debt by attachment, and to make no arrangement with the said Purringtons to delay the extension of execution upon the lands of the said debtor, and not to take any consideration for said demands or in satisfaction of judgment, other than payment of the same, or extension of execution and set off upon the lands and property of the said Purrington. And the defendant did obtain judgment for the plaintiff on said notes and accounts, and did, without the consent of the plaintiff, and contrary to his express directions, undertake to settle and adjust said claims with said Purrington, and did not follow the instructions of the plaintiff, but so carelessly and negligently conducted the said trust, that the said debt has never been paid or collected, and the plaintiff has wholly lost the attachment and execution, and his claim on said Purrington for the debt, by the proceedings of the defendant in his said capacity as aforesaid, and has otherwise suffered injury and loss.”</p> <p>At the trial, which was in the court of common pleas, before Mellen, J., the defendant admitted that the plaintiff was the owner of the two notes mentioned in the declaration, on which there was due, on the third Monday of August, 1843, the sum of $ 15071; that he was and is an attorney and counsellor at law; that the plaintiff* delivered the notes to the defendant, to collect, and duly employed the defendant to sue Purrington thereon, and employed the defendant to use all such care and diligence as is incumbent on an attorney in such suit; that the defendant instituted suits on the notes, and obtained judgment and took out execution thereon for the plaintiff; and that the notes or debt had never been paid or collected. But the defendant denied the two other allegations in the declaration, namely, that the want of collection, or failure of payment of the notes, was owing to the defendant’s negligence ; and that the defendant had lost any attachment in the plaintiff’s suit, or had lost the plaintiff’s execution, or had lost the plaintiff’s claim on Purrington for his debt.</p> <p>There was evidence tending to show, that an account in favor of the plaintiff against George Purrington was left with the defendant for collection, at the same time with the notes. It appeared, also, in evidence, that two suits were instituted by the defendant in favor of the plaintiff against George Purrington, on which judgments were obtained, and that executions issued thereon on the 23d of August, 1843 ; that these executions were never discharged by any indorsement on them, but that the defendant took a note for the amount of both, dated September 2d, 1843, payable to himself or order, with a mortgage to secure the payment of the same; and that no account was included in either of these actions or judgments. There was no evidence, that Purrington’s ability to pay had ever become less, since the notes were left with the defendant for collection. This suit was instituted on the 10th of October, 1844.</p> <p>The defendant contended, and prayed the court to instruct the jury; that the gist of a suit against an attorney for negligence is the solvency of the original debtor, when the debt was delivered to the attorney to sue and collect, so that by diligence, the attorney might have collected the same, and the debtor’s insolvency when the attorney was sued; and that mere delay and nonfeasance could not be a ground of sustaining this action, if the debtor was as able as ever to pay the debt, though that delay and nonfeasance might be a ground of defence against the attorney, if he should sue for fees.</p> <p>The defendant also prayed the court to instruct the jury, that when a note is delivered to an attorney for collection, if the attorney discharge the debt either with or without payment, or compromise it for part payment without the client’s leave, the only remedy against the attorney is by an action for money had and received; that if in any stage of the proceedings, before payment or discharge of the debt, the attorney delay to proceed and collect, unless a failure of the debtor intervene, the only remedy of the client is to demand the evidences of the debt, or vouchers or execution from the attorney, and in the event of a refusal, to bring an action for the same; but that the only ground, on which this suit could be maintained, would be proof of the attorney’s negligence, by which and by the subsequent inability, or failure of the debtor, a loss of the debt had happened, which by the attorney’s diligence might have been collected before such failure.</p> <p>But the court refused so to instruct the jury, and did instruct them, that though Purrington was and ever had been and then was as able as ever to satisfy valid debts and judgments, to the amount of the debt left for collection by the plaintiff with the defendant, yet if the defendant, by gross negligence, in a matter he had undertaken to perform as attorney, had embarrassed the collection of the plaintiff’s debt, and put it in such a situation, that the plaintiff could not so readily realize the amount of his claim, and the plaintiff’s debt was thereby rendered of less value, the plaintiff was entitled to recover of the defendant in damages.</p> <p>The jury returned a verdict for the plaintiff, and the defendant thereupon alleged exceptions.</p> <p>The defendant also moved in arrest of judgment, in this court, on the ground, that the declaration contained no sufficient allegation of any particular or specific act of negligence, committed by him.</p>

This was an action of assumpsit, commenced in the court of common pleas, to recover the sum of twenty-seven dollars and thirty-four cents, according to the account annexed to the writ. The action was duly entered ; and the parties agreed to submit the same to an arbitrator, no claim in set-off being then filed by the defendant.

The plaintiff and defendant were the owners and occupants of adjoining lots of land, with the buildings thereon, in Randolph. A drain, for the use of the dwelling-house on the defendant’s land, was constructed from the same, through the plaintiff’s land, to a convenient outlet. The drain being out of repair, the defendant entered upon the plaintiff’s land, and opened the drain for a short distance, and made such repairs upon it as were necessary.

This was an action originally commenced before a justice of the peace, to recover the balance due on a promissory note. Judgment having been rendered by the justice in favor of the defendant, the plaintiff appealed to the court of common pleas.

The petitioners having adopted certain by-laws, under the authority conferred upon cities and towns by the statute of 1847, c. 66, petitioned the court of common pleas for an approval thereof, as required by the Rev. Sts. c. 15, 13. That court having ordered the petition to be dismissed, for certain reasons specified in the order, the petitioners thereupon appealed to this court.

<p>This was a writ of entry, for the recovery of certain real estate in Dedham, which was tried, on the general issue, before Forbes, J., to whose rulings and instructions, — a verdict being rendered for the demandants, — the tenant excepted.</p> <p>The demandants gave in evidence a judgment rendered in their favor, in the court of common pleas for this county, against the New England Silk Company, a corporation legally established ; an execution issued in pursuance thereof dated September 2, 1845 ; and a levy, appraisement, and other proceedings returned thereon; from which it appeared, that the officer, by whom the execution was served, on the 11th of September, 1845, seized thereon seven thirty-second parts of the demanded premises ; that further proceedings in the levy were suspended until the 10th of October, 1845, when the levy was completed, and seven thirty-second undivided parts of the demanded premises were assigned to the demandants, in part satisfaction of their judgment.</p> <p>The tenant objected, that it did not appear, that the levy of the execution was completed in due season, after it was commenced; whereupon the demandants gave evidence showing that the same premises were attached, on the 17th of June, 1845, on a writ in favor of other creditors, on which judgment was subsequently obtained, and an execution issued, which was levied on an undivided part of the premises, on the 1st of October, 1845.</p> <p>The demandants also gave in evidence a judgment recovered by them against the New England Silk Company, in the court of common pleas for the county of Suffolk, and an execution issued thereon, upon which seven one hundred and fiftieth parts of the demanded premises were seized and assigned to the demandants, December 17,1845, in part satisfaction of such execution.</p> <p>In both these levies, the appraisers certified, (their certificates were made part of the return,) that, finding the premises incapable of division, they had appraised the undivided parts set off by them, in each case, at the several sums at which they were so assigned, but they did not otherwise report the entire value of the whole estate. The tenant objected to the levies, because the appraisers did not report the entire value; but the objection was overruled.</p> <p>The tenant thereupon produced the evidence, upon which he relied to show his title in the demanded premises, from which it appeared, that Christopher Colt, jiv, treasurer of the New England Silk Company, acting under the supposed authority of certain votes of the company, conveyed the demanded premises, before the seizure thereof on execution as above mentioned, by deeds of mortgage and quitclaim, to James B. Colt, from whom, by intermediate conveyances, the estate came to the tenant.</p> <p>The demandants, among other objections to the evidence on the part of the tenant, not necessary to be stated, objected to the validity of the deeds to James B. Colt.</p> <p>The formal parts of one of the deeds, to which the objection referred, are as follows: —</p> <p>“ Know all men by these presents, that the New England Silk Company, a corporation legally established, by Christopher Colt, jr., their treasurer, of Dedham, &c., in consideration, &c., do hereby give, grant, sell, and convey,” &c.</p> <p>“ In witness whereof, I, the said Christopher Colt, jr., m behalf of said compapy, and as their treasurer, have hereunto set my hand and seal, this,” &c. [Signed and sealed] “ Christopher Colt, jr., Treasurer of New England Silk Company.”</p> <p>The certificate of acknowledgment stated, that “ Christopher Colt, jr., treasurer, &c., acknowledged the above instrument to be his free act and deed.”</p> <p>In the other deed, Christopher Colt, jr., describes himself, in the concluding recital, as “ treasurer of the New England Silk Company, and duly authorized for that purpose; ” and, in the certificate of acknowledgment, it is stated, that, “ in his said capacity,” he acknowledged the instrument to be his free act and deed.</p>

<p>Several complaints by different complainants, under the Rev. Sts. c. 116, being pending at the same time, in the court of common pleas, it is the duty of the court to cause all the complaints to be considered and determined by the same jury. The more correct and proper course, in such a case, is to issue only one warrant reciting the several cases; but, if separate warrants are issued, the sheriff should regard them as a joint warrant, and cause the several cases to be tried together by the same jury.</p> <p>The parties to a complaint under the mill act (Rev. Sts. c. 116,) having agreed upon the appointment of surveyors, who were appointed accordingly by the court, to make surveys and experiments, to be used on the trial of the complaint; and having also agreed, that the result of the surveys and experiments, and the testimony of the surveyors, as to the effect of the dam and flash-boards of the respondent, should be the only evidence, to be used on the trial, upon that question in the case, unless fraud or mistake could be shown on the part of the surveyors ; it seems, that the only evidence admissible to show such mistake is that which relates to some error in the compass, or in figures, or in computation, or to some other like error, and that evidence going over the surveys and experiments of the surveyors, with a view to detect mistakes in the results, is not admissible.</p>

<p>This was an action on the case, to recover for the damages sustained by the plaintiff, by reason of an injury caused by the defendant’s mare (alleged to be vicious and accustomed to kick) to the plaintiff’s minor son; in consequence of which the plaintiff was put to great expense, costs and charges, and he and his family subjected to great bodily and mental suffering. In one count of his writ, the plaintiff also claimed damages for the personal injury and sufferings sustained by the minor in consequence of the injury.</p> <p>At the trial before Mellen, J., in the court of common pleas, it was admitted by the plaintiff, that when the injury occurred, the minor was too young to be capable of rendering him any service, and that he was not entitled to recover for the personal injury and sufferings of the child. But the plaintiff claimed to recover for the expenses incurred by him, by reason of the injury, and for his own trouble, and for the medical attendance and nursing of the child, which thereby became necessary.</p> <p>The judge being of opinion, and so deciding, that the only ground upon which the action could be maintained, was the plaintiff’s loss of the services of his child, which, it was admitted, did not exist in the present case, the plaintiff thereupon became nonsuit, and alleged exceptions.</p>

This was a bill in equity, to compel the specific performance of an alleged written contract, for the purchase of land by the defendant at an auction sale.

<p>These xvere appeals from an adjudication of the court of common pleas, affirming the verdict of a sheriffs jury, empanelled to estimate the damages, if any, sustained by the petitioners, in consequence of the laying out of a highway over their land.</p> <p>It appeared, that the petitioners, in August, 1845, applied by petition to the county commissioners of the county of Norfolk, to lay out a new highway, as described in their petition ; and that the commissioners, on the 30th of March, 1847, having previously adjudged that the same was required by common convenience and necessity, proceeded to lay out the highway, and to award damages therefor to the land owners. The order of the commissioners, as to the damages, was as follows: — ^</p> <p>“ To the owners of the lands, over which said road is laid, are awarded, for their lands taken, for fencing against the road, and for all injuries to their estates, the sums set against their names, respectively; and as to those, whose lands were taken, and who are not named, their benefit was considered an equivalent for the injury done them, viz.: To the heirs of Elihu White, six hundred dollars, $600; East School District, fifteen dollars, $15. For the payment of which, warrants will be drawn upon the county treasury, as soon as said town of Braintree shall have entered upon and taken said lands for the purpose of working said road.”</p> <p>The petitioners, not being named in the award of damages, and feeling aggrieved that their claim therefor was thus disallowed, applied to the commissioners to have their damages estimated by a jury, and a warrant was accordingly issued by the commissioners to the sheriff for that purpose.</p> <p>At the hearing before the jury, the petitioners took exceptions to certain rulings of the sheriff, among others, as follows : —</p> <p>Fisher A. Kingsbury, being called as a witness by the petitioners, and inquired of whether he heard Calvin White, one of the petitioners, claim damages of the county, at the time of the location of the road; the question was objected to by the respondents, and the objection sustained by the sheriff, on' the ground, that evidence had been put into the case, showing that no damages were claimed by Calvin White and others, the petitioners, down to the time of the adjudication that the highway prayed for was of common convenience and necessity, and that it was distinctly understood, that the petitioners waived all claim for damages.</p> <p>The jury found a verdict for the respondents, and the same being returned to the court of common pleas, together with the sheriff's certificate of the rulings excepted to by the petitioners, the petitioners moved- the court to set aside the verdict, for the following reasons : —</p> <p>1. Because the evidence offered by the petitioners, that' they claimed damages at the time of the location of the highway in question, was rejected by the sheriff, on the ground that the petitioners had previously waived their right to such damages.</p> <p>2. Because evidence was offered and submitted to the jury, fcy witnesses, that the petitioners had waived their right to damages; although the county commissioners, in their location of the road, adjudged that the petitioners had received benefits from the location, which were equivalent to any injury to their lands occasioned thereby.</p> <p>The court of common pleas disallowed the motion to set aside the verdict, and affirmed the same. The petitioners thereupon appealed to this court.</p>

<p>J. A., by his will, after sundry devises and bequests, devised: (1) to his wife one half of the net income of all the residue of his estate, during her life; (2) to his daughter, C. W. C., the other half of the net income of such residue, during her life; (3) in case H. C., husband of C. W. C., should survive his wife, the income of one half of the testator’s estate to him, during his life; (4) the other half of the income of his estate not devised to H. C., after the decease of the testator’s wife, together with the reversion of his whole estate, to his daughter, C. W. C., in fee simple, “ thereby meaning,” in the words of the will, “ to vest in her the absolute fee in all my estate, subject,” &c.: The will also contained the following clause: “And inasmuch as my daughter is incapable of making a will during her coverture, without express authority from me, as the devisor, it is my express will and intention, that she may, by any instrument in writing, purporting to be her last will, devise the whole of her estate so devised by me, in such way and manner as to her may seem expedient: ” The testator’s wife died in his lifetime: It was held, that, as to the moiety of the estate devised to the wife of the testator, for her life, the daughter, C. W. C., took an estate therein in fee, which vested in her in possession immediately upon the death of the testator; and that, as to the other moiety, C. W. C. took an estate for life, remainder to her husband, H. C., for life, remainder to herself in fee.</p>

<p>This was an appeal to the court of common pleas, from a decree of the judge of probate for this county, disallowing a claim of the appellant against the estate of Levi Mann, 2d, an insolvent debtor, of which the appellee was the assignee.</p> <p>The case was submitted upon an agreed statement of facts, from which it appeared, that Levi Mann, 2d, on or about the 15th of February, 1848, presented his petition to the judge of probate for the benefit of the insolvent law, upon which such proceedings were had, that a meeting of the creditors of the petitioner was held on the 4th of March following, at which Elisha Mann, jr., was appointed his assignee; that the appellant, being a creditor of the insolvent, presented his claim for allowance, at such meeting, and the same was allowed, amounting to $22-20; that at the second meeting of the creditors, held on the 1st of April, 1848, the appellant requested and moved the judge of probate, that he be allowed a preference, as an operative in the employment of the insolvent, for his claim or such part thereof as appeared to be for services rendered within sixty-five days previous to the insolvency of the debtor, not exceeding $25, which preference the judge of probate refused to allow; that the appellant thereupon appealed from the decree disallowing his claim for a preference, and duly notified the judge thereof, to the court of common pleas next to be held in the county of Norfolk; that the amount of the appellant’s claim against the insolvent was justly due ; that the services, upon which the same was founded, were performed by the appellant personally, as stated in the claim below * except the last item therein, which was the work of the appellant’s wife; that the compensaion, which it was agreed between the parties, the appellant was to have for his services, was computed at the prices charged in his bill; and that the materials, upon which the services were bestowed, were taken from the manufacturing shop of the insolvent, and carried to the shop of the appellant, where the work was done.</p>

This was a real action, brought in the court of common pleas, for the foreclosure of two mortgages, upon which, the demandant contended, he was entitled to a single consolidated conditional judgment.

<p>A testator, having provided for the payment of debts, legacies, and charges of administration, gave all the residue of his estate to trustees, who were also his executors, in trust, to receive the income thereof, and, after payment of charges and expenses, to pay out of the same an annuity of $5000 to his wife, for her own benefit, payable from the time of his decease, and not less frequently than annually, and the residue of the income, during the life of his wife, and the whole of it, after her death, to his daughter, semiannually, in every year during h'er life: The testator also directed, that, inasmuch as he had made abundant provision for his daughter, so that his wife might not be at any charge or expense for her maintenance or education, all such charges and expenses should be defrayed out of the income of the trust property devised for the benefit of his daughter: It was held, that the residue was to be considered as formed, subject to the payment of debts, legacies, and charges, and the income thereof to be computed and payable, at and from the decease of the testator.</p>

Trespass for breaking and entering the plaintiffs’ close (called Neck Swamp) in Halifax, and cutting down and carrying away timber, trees, &c. There were two counts in the plaintiffs’ declaration. The first described the close by metes and bounds, and as containing about four and a half acres; and the second contained a general description of the close, and as containing about four acres; and a single trespass, committed at one time and place, was alleged in each.

This was a bill in equity to redeem an estate therein described, brought by the plaintiffs, as the purchasers of the equity of redemption, against the defendant, as the assignee of the mortgage.

This was an action of indebitatus assumpsit for money alleged to have been paid, laid out, and expended by the defendants, for the use of the plaintiffs.

This was a bill in equity for the redemption of certain mortgaged premises in East Bridgewater, and came before the court upon exceptions by the defendants to the report of Zachariah Eddy, esquire, one of the masters in chancery for the county of Plymouth, to whom it was referred to state the accounts between the parties.

This was a petition for partition, in which the petitioners claimed title under the levy of an execution on the premises described in the petition, in favor of the Peoples Bank of Roxbury against Thomas Hobart, issued on a judgment rendered at the September term of the court of common pleas, 1840, for the county of Norfolk.

<p>This was an action of assumpsit, tried in this court before Wilde, J., to recover a sum of money alleged to have been paid by the plaintiffs for the building of a school-house for the defendants.</p> <p>Before proceeding to trial, the plaintiffs moved that the defendants be defaulted ; and, as the ground of the motion, introduced the record of a meeting of the defendants, held on the 4th of April, 1848, at which it was voted, that the district should be defaulted in this action. The meeting, at which this vote was passed, was called by the selectmen of the town of North Bridgewater, who, on an application made to them by three of the qualified voters of the district, issued their warrant for calling the meeting to one of the applicants, by whom the inhabitants of the district were personally notified thereof, seven days before the time of meeting.</p> <p>The defendants then introduced the records of the district, by which it appeared, that at a regular meeting held on the 28tli of March, 1846, it was voted, “ that the prudential committee call all future meetings of the district, by issuing his warrant to the clerk, who shall post up notices of the meeting on John Tilden’s and W. P. Howard’s store doors.” This vote had never been rescinded.</p> <p>The plaintiffs thereupon offered to prove, that prior to the issuing of the warrant by the selectmen, the prudential committee had issued his warrant to the clerk, who refused to notify the meeting. This was denied by the defendants; but the judge, being of opinion, that if true, the refusal of the clerk would not authorize the calling of a meeting by the selectmen, held that the meeting of the 8th of April, 1848, was illegal, and refused the motion to default.</p> <p>The trial then proceeded, and, from the report thereof by the presiding judge, the following facts appeared: —</p> <p>At a meeting of the district, which was duly called and warned, held on the 29th of July, 1846, it was voted, under a proper article in the warrant for the purpose, to build a school-house for the use of the district; to purchase a lot of land, upon which to erect a sbhool-house ; that a committee of five be chosen to select and purchase a lot of land; to choose a committee of three to build a house; and that the building committee draw a plan of a school-house, and present it at an adjournment of the meeting. Committees were appointed in pursuance of these votes, — the plaintiffs being the committee to build the house, — and the meeting adjourned to the 8th of August, 1846.</p> <p>At the adjourned meeting, on the 8th of August, 1846, it was first voted, that the committee report; whereupon the committee for selecting and purchasing a lot of land made a report, as to the prices of certain lots, which was accepted. It was then voted, that the committee be instructed to purchase the lot next south of Sumner A. Hayward’s ; that the building committee go forward, and procure a plan, and proceed to build forthwith ; that the committee be instructed not to exceed $1000, in the cost of the house ; that the sum of $1000 be raised, to be assessed on the polls and estates of the district, according to law ; that the clerk certify the last vote to the assessors, and that the assessors instruct the collector to collect the tax some time before the 1st of November next; and that the prudential committee be instructed not to expend any money belonging to the district, until a house shall be erected for the use of the district.</p> <p>The committee, appointed to select and purchase a lot of land, proceeded according to the instructions given them, and took a deed of the lot above designated, in the name of the district, on the 18th of August, 1846. This deed was regularly acknowledged and recorded.</p> <p>A meeting of the district, duly called and warned, was held on the 19th of August, 1846, for the purpose of seeing (as stated in the warrant for calling the same) if the district would vote to rescind any or all of the doings of their last meeting on the 8th of August. This meeting was dissolved without coming to any vote.</p> <p>The plaintiffs, in pursuance of the authority conferred upon them, as a committee of the district for building a schoolhouse, under the above recited votes, entered into a written contract, bearing date the 5th of September, 1846, with Apollos E. Howard, to build a school-house for the district, according to a plan and specifications, and for a price, agreed upon by the parties. The plaintiffs also made their personal bond to Howard, conditioned for the payment of the price for building the school-house, according to the contract. This instrument, as well as the written contract, was dated on the 5th of September, 1846; but it was in evidence, that the bond was not actually written and executed, until about ten days after Howard had been notified, as hereinafter stated, of the rescinding of the contract. It appeared in evidence, that the contract between the plaintiffs and Howard was executed about four o’clock in the afternoon of the 5th of September; and that it was stated by the plaintiffs, at the time, that the district was to hold a meeting in the evening of that day, for the purpose of rescinding their votes to build a school-house ; and that the plaintiffs wished to complete the contract before the meeting.</p> <p>At a regular meeting of the district, held on the 5th of September, 1846, under an article in the warrant for the purpose, the district voted “ to rescind all their doings ” at the two previous meetings held on the 28th of July and 8th of August; and at a regular meeting, held on the 28th of September, it was voted “ to choose a committee to call on the several committees of the district, chosen at a former meeting to buy land and contract for building a school-house for the district, for all deeds and contracts, if any they have made or received, for or in behalf of the district; ” and the members of this committee being then appointed, it was also voted, that they “ serve as a committee to superintend the whole subject of building a school-house, or any thing in relation to that subject, that the interests of the district may require.” At these two meetings, on the 5th and 28th of September, the plaintiffs were present.</p> <p>A day or two after the meeting on the 28th of September, the committee appointed at that meeting called on Howard, the contractor to build the school-house, and informed him that the district had voted to rescind their doings in relation to building a school-house, and that they were appointed a committee to forbid his proceeding to build.</p> <p>The committee, at the same time, in the name of the dis trict, offered to indemnify him, if he had sustained any loss in consequence of the contract to build. It appeared, that on the day when they called on him, he had been to a lumber dealer, and had selected his lumber, but that he did not consider himself bound to take it. This was all he had done towards an execution of the contract.</p> <p>A few days subsequently, Howard called on the building committee originally appointed, the plaintiffs, and informed them of what had occurred, and that he should abandon the contract, unless they became personally responsible to him. The plaintiffs directed him to go on with the contract, and executed the bond before referred to, by which they became personally responsible to pay him for the building. Howard thereupon proceeded and built a school-house, according to his contract, on the land which had been purchased for the purpose by the committee of the district, and the plaintiffs paid him therefor.</p> <p>It appeared, by the records of the town of North Bridge-water, that at the annual meeting of the town in 1847, and also in 1848, Davis Kingman was regularly chosen prudential committee of district No. 13; and it was in evidence, that he caused a school to be kept in the house built by Howard, for five months, commencing on the 3d of May, 1847, and also for four months during the following winter, and that he had opened a school therein which was then (May, 1848) in operation. It was also in evidence, that a majority of the voters of the district had never sent to or patronized the schools thus kept; and that the district, in the spring of 1847, prior to the town meeting at which Kingman was chosen prudential committee, elected for themselves another person as such committee for the ensuing year.</p> <p>The judge being of opinion, upon this evidence, that the plaintiffs could not recover, a nonsuit was entered. If the court should be of opinion, that the motion for a default was improperly overruled, a default is to be entered; otherwise, the nonsuit is to stand, or to be set aside, and a judgment entered for the plaintiffs, according to the opinion of the court.</p>

This was an action of assumpsit, brought by the plaintiffs, to recover a sum of money, alleged to have been paid by them for a lot of land for the defendants, and was submitted to the court upon an agreed statement of facts. The votes of the district, as stated in the next preceding case of Hayward against the same defendants, make a part of this.

<p>This was a bill in equity, the object of which was to have the defendants declared trustees for the beneficial use of the plaintiff, and decreed to convey the legal estate in certain land to the plaintiff, on being paid their expenses. The defendants demurred to the bill.</p> <p>The facts are fully stated in the opinion of the court.</p>

<p>Two of three witnesses to a will, when signing it as such, being in a different room from the testatrix, and not in her presence, view, or hearing, although in a room connected by an intermediate room with that in which she was lying; this is not a signing by such witnesses in the presence of the testatrix.</p>

These were actions of assumpsit on policies of insurance, subscribed by the defendants, on the ship Joseph Meigs and catchings on a whaling voyage. The writs were dated February 16th, 1847.

<p>Where a deed of land, executed and acknowledged by the grantor, was deli rered by him to two of the three grantees therein named, by whom it was retained for some time, without being recorded, and was then given back by them, without the knowledge or consent of the third grantee, to the grantor, by whom the same was destroyed, and the grantor subsequently died, it was held, that the declaration of the grantor, that he had made such a deed, was admissible in evidence, after his death, against his heirs or devisees.</p> <p>The admissions of two out of several respondents, in a petition for partition, are competent evidence against such respondents, but not against the others.</p> <p>£he scrivener who drew a deed which had been given back to the grantor and destroyed by him being called as a witness to testify to the contents of the deed; and having stated that it contained one of two conditions, and that his mind was equally balanced, as to which of the two it contained; but that he had a strong belief on the point, derived partly from his recollection of the instructions given him by the grantor for drawing the deed, and partly from the subsequent acts and declarations of the grantor; it was held, that the witness could not be inquired of, either as to his belief, or as to the instructions, for the purpose of defeating or limiting the estate granted; and if the conditions were repugnant to the grant, and therefore void, the evidence was inadmissible on that ground.</p>

The defendants brought their action, by a writ dated March 11th,-1843, and recovered judgment therein against Ezekiel B. Leonard and George Leonard, on a promissory note, of which the following is a copy: — “ Taunton, Dec. 1, 1839. For value received we jointly and severally promise to pay the Trustees of the First Congregational Society in Taunton, or their order, two hundred twenty-six dollars ■{and interest for same till paid.

This was an action of replevin for certain engines and lathes named in the writ, which was dated September 2d, 1846, and was tried before Ward, J., in the court of common pleas. The plaintiff claimed the articles replevied under a bill of sale thereof to him from Pierce Millard, dated August 15th, 1846, and a delivery on the same day, subject to a mortgage to the Fall River Iron Works Company.

<p>Previous to the marriage of I. V. with S. T. C., an indenture of three parts# sealed by the parties, was made and executed by and between I. V. of the first part, V. B. of the second part, and S. T. C. of the third part: I. V. therein covenanted and agreed with V. B., that in the event of the marriage taking place, and his wife’s surviving him, he would “ by his last will or otherwise," make a certain specified provision for her, by the payment of a gross sum to V. B., and by payment or giving security for the payment to him of a further sum yearly during the widowhood of the intended wife, for her use, and to be paid to her by V. B. instead and in satisfaction of dower in the real and of any distributive share of the personal estate of I. V.: V. B. covenanted and agreed with I. V , that he would accept the trust, and receive and pay over the money, for the use and benefit of S. T. C.; and the latter covenanted and agreed with I. V. and V. B. that in case the marriage took place, and she should survive I. V., and the money above mentioned should be provided to be paid and actually paid, and the annuity well and sufficiently secured and provided to be paid, as stipulated in the indenture, the same should be in full satisfaction of her dower in the estate of I. V., and should bar her from claiming the same, if she should survive him, and should also be a bar to any claim on her part of any share in his personal estate, unless given her by his will: The marriage took place, and I. V. died leaving a will in which no reference was made to the indenture, but which contained a general direction for the payment of the testator’s debts and the performance of his obligations: The executor of I. V., within the time stipulated in the indenture, made the payments and gave the security therein specified to V. B., for the benefit of the widow, who refused to receive the same, but made a demand of dower in the real estate of I. V., and brought her action therefor: It was held, that, by the indenture, a pecuniary provision was made for the benefit of the demandant, in lieu of dower, and assented to by her, within the provisions of the Rev. Sts. c. 60, §5 8, 9, by which the demandant was barred of her right of dower in all the lands of her husband.</p>

The plaintiff brought this action against the defendants, to recover the amount of an account annexed to the writ, containing charges for blacksmith’s work, $24-67; for rent of a certain meeting-house, $40 ; and for interest, $5-33. The writ was dated October 9th, 1844. The trial was before Ward, J., in the court of common pleas.

<p>On the 19th of November, 1846, P. O. K. and J. H. K. traders and partners, sold out their entire stock in trade to J. K., their brother, and took" his promissory notes therefor: On the 27th, the property so sold was attached by creditors of P. C. and J. H. K., resident in other states, on suits commenced in the circuit court of the United States: On the 3d of December, an arrangement was made, in pursuance of which, the attaching creditors discharged their attachments, and the notes of J. K. were placed in the hands of the defendant, as a trustee, to receive the amount thereof, and, out of the proceeds, to pay such attaching creditors seventy-five per cent of their demands, and, if there should be any surplus remaining, to divide the same among certain other creditors of P. C. and J. H. K., who had consented to such arrangement, in proportion to their respective de mands : On the 23d of December, P. 0. and J. H. K. took the benefit of the insolvent law, and on the 4th of January, 1847, a conveyance of all their estate was made to the plaintiff, as assignee: In an action of trover by the plaintiff, as such assignee, to recover the value of the notes, it was held, that the transfer of the same, by the insolvents, to the defendant, was not void, as an intended preference of a preexisting creditor, in contravention of the act of 1841, c. 124, § 3.</p>

This was a. writ of entry to recover a tract of land in Taunton described in the writ. The demandants declared on their own seizin, within twenty years, and a disseizin by the tenant. The tenant pleaded nul disseizin, on which issue was joined, and the cause tried before Wilde, J., in this court.

This was a real action brought by the plaintiff, as the assignee of Robert M’Connell, an insolvent debtor, to recover possession of three several tracts of land described in the writ.

<p>This was an action of assumpsit, on a policy of insurance dated the 5th of October, 1843, underwritten by the defendants on the ship Timoleon, her tackel, apparel, outfits and takings, on a whaling voyage described in the policy, for the sum of $4500. The vessel was valued at $10,000, and the outfits at $ 14,000. One of the perils insured against was the “ barratry of the master and mariners.”</p> <p>The ship sailed from New Bedford, on the 10th of November 1843, and having touched at various ports and places, arrived at Tahiti, one of the Society Islands, on the 13th of May, 1844, where she remained forty-two days, during which time the greater part of the crew deserted. Others were shipped in their stead, and, on the 27th of June, the vessel sailed from Tahiti on a cruise for whales, and returned to the same port on the 27th of November, 1844, where she was taken possession of by the consul of the United States, and sent home under the charge of midshipman Brown, of the United States navy, who navigated her to the port of New Bedford, and delivered her into the possession of the plaintiff, on the 12th of July, 1845.</p> <p>The plaintiff claimed to recover as for a total loss of the outfits and voyage, by reason of the barratry of the master, William Plaskett; and the case having been opened to the jury, and sundry documents and depositions read, it was, by the consent of the parties, withdrawn from the jury, and submitted to the whole court upon the evidence introduced, namely : the plaintiff’s specification of his demand; the letter of George R. Chapman, United States consul at Tahiti, dated February 14th, 1845; the certificate of F. Johnston, and H. Cary, surgeon and assistant surgeon in the British navy, addressed to the consul of the United States, at Tahiti; and the several depositions or affidavits of William H. De Lacy, and of William Miller, chief mate, and Charles Rule and Warren Baker, boat steerers, of the Timoleon.</p> <p>If, in the opinion of the whole court, the acts and conduct of the master, as disclosed by all the evidence submitted on the part of the plaintiff, constitute the offence of barratry, against which the defendants insured, then judgment is to be entered for the plaintiff, and the damages to be assessed by an assessor, upon such principles as the court shall direct, otherwise the plaintiff is to become nonsuit.</p> <p>It will be sufficient, in order to render the case intelligible, to state some of the material parts of the testimony, upon which it was submitted to the court.</p> <p>In regard to the conduct of the master, on the voyage from New Bedford to Tahiti, Miller, the chief mate, testified a* follows:.—</p> <p>“ We took the general route of ships bound to the Indian Ocean, except that we kept in a lower latitude than ships generally do; and the consequence was, that it lengthened our passage, on account of the light winds. No attempts were made to get into a higher latitude. I mentioned it several times to captain Plaskett, but he paid no attention to it. I asked the captain why he did not go farther south, and get stronger winds. He said, in answer, that he knew his own business best; so I said no more. In my opinion, the best way to have made the outward voyage would have been round Cape Horn. If we had gone that way, we should have saved the season on the north-west coast. The Navy, Israel, and other vessels, which sailed after us, saved the season. While we were on that passage, the captain was all the time more or less intoxicated; some days more and some days less. He was so bad at times that he was not capable of navigating the ship. In consequence of the long passage, and detention round the land, we lost the season on the northwest coast. At the Cape de Verd Islands, we lay off and on nine days; at the Society Islands, ten days; and we lay at Tahiti forty-three days.”</p> <p>Rule, one of the boat steerers, testified, that while lying off and on at the Cape de Verds, the captain nearly lost his speech, for a time; and that while the vessel was on her outward passage, he was frequently incapable of doing any duty, or taking any care of the ship, from intoxication.</p> <p>Baker, another of the witnesses, testified as follows: “ Whenever we made land, the captain stopped the ship, and went on shore, detaining her a number of days — fourteen days trying to get into the harbor of Tristan d’ Acunha, — three days lying off and on at St. Paul’s, — and at the Cape de Verd Islands, we were seven or eight days, and then he began drinking to excess, and continued it until after we left Tahiti the first time. During this passage out, he continued to drink so hard, that, many times, he didn’t seem to know what he was about. I first perceived the captain to be intoxicated the third day out. He became worse afterwards.”</p> <p>The consul, Mr. Chapman, in his letter, thus describes the arrival of the Timoleon at Tahiti, and the conduct and proceedings of the captain, whilst there the first time: —</p> <p>“ The Timoleon first arrived here from New Bedford, in May, 1844. She had been lying but a few days, when complaints were made at this office of brutal treatment on the part of the captain, who was represented to be constantly in a state of intoxication, totally unfit for the business necessary for expediting the departure of his ship, and, whenever upon deck, or able to leave his cabin, appearing in a state bordering on insanity, and, at all times, without the slightest provocation, abusing his officers and men with the most gross and obscene language.</p> <p>“ Among the greater number, such was principally the nature of the complaints made. He was accordingly summoned to appear at this office, where, upon investigation, the nature of the testimony elicited was such, that the demand for discharges, urged by officers and men, who feared not only for the safety of the ship, but for their personal security, was so far considered justifiable, that the sanction of the consul was obtained in consequence, where the mutual dissatisfaction was so great, and such fears entertained, as represented.</p> <p>“ With the passengers who came out, differences had also arisen, in consequence of his habitual intoxication; and having made threats against the life of Dr. Winslow, it became necessary to confine him. He was accordingly arrested, and during his confinement constantly exhibited evident signs of insanity, which might and would have been considered as the usual consequence of total abstinence, after so long and such beastly dissipation, had not the whole tenor of his conversation and conduct, for the eight succeeding months, afforded additional evidence, that he had not only lost that energy and discretion necessary for the prosecution of a voyage, but, at frequent intervals, was perfectly imbecile.</p> <p>“ During his stay here, which was of at least three weeks’ longer duration than was at all necessary, by discharge and desertion, he had lost nearly the whole of his original crew</p> <p>‘ Beach combers,’ and the detestable class of men that infest the ports of the Pacific, are the only ones to be found to replace absences, either by discharge or desertion, and with such a crew did the Timoleon leave here on her last cruise.”</p> <p>In regard to the conduct and deportment of captain Plaskett, during the forty-two days the vessel remained at Tahiti, the first time she was there, De Lacy testified: “ His conduct at this time was very gross and violent, from the effects of intoxicating drink ; so much so, that he was brought to trial for violent conduct towards a passenger, Dr. Winslow, and was imprisoned in the calaboose. I saw him frequently intoxicated. When not intoxicated, he behaved like a gentleman ; when intoxicated, he was very wild.”</p> <p>Miller testified as follows : “ While we were at Tahiti, the captain conducted about the same, as regards drink, as he did on board the ship. He was very bad all the time at Tahiti. At that time he sold all the tobacco, and some of the prints that were in the ship. All I know is, that after he sold the tobacco and prints, he was put in prison. I took the money from his trunk and sent it ashore. The next day, I told him what I had done, and he said it was eight hundred dollars. Nothing had been sold from the ship before. The ship was not in need of any thing there.”</p> <p>Rule testified, that, while at Tahiti, the captain drank very hard, and during most of the time was not capable of attending to any business or duty of the ship; that many oí the crew deserted, no exertions being made to keep them, or to regain them after their desertion ; that there was no necessity for the vessel’s remaining at Tahiti, as she was in want of nothing; and that there was no reason why they were detained there, except that it was the captain’s will. The other witness testified, that whilst at Tahiti the first time the captain continued to drink excessively, and was on shore pretty much all the time.</p> <p>After remaining at Tahiti forty-two days, the Timoleon sailed on the 27th of June, 1844, on a cruise, with a crew consisting of six or seven only .of he1- original complement of men, the rest having been discharged or deserted, and their places supplied by natives of the island, beach combers, English, Spanish, &c. This cruise is thus described by Baker in his testimony : “ Captain Plaskett had drank so hard, that he had falling fits, a species of epilepsy, which almost entirely disqualified him from conducting the ship; and his conduct was such, that the officers and crew became alarmed for the safety of the ship and their own lives. Upon one occasion, he ran so close into one of the Feejee Islands, that we were much in danger Of being massacred by the "natives. The captain kept hovering in to the island, which kept the crew and officers constantly in fear. On the 20th of October, the captain was aloft, and had one of his fits, and fell from the foretopmast cross trees overboard. We got him on board again, and stood in for the Navigator Islands. When he roused up, which he did in the course of two or three days, he directed us to tack ship, refusing to go in. The next day he directed us to stand for Tahiti, where we arrived on or about the 26th of November.”</p> <p>Miller testified, that the captain did not “ seem inclined to do much whaling, from the appearance of things; ” that he, the witness, started the liquor, knocked it on the head, when they left Tahiti, so that they had none on board that cruise ; that the captain’s health was very bad, and he had a number of fits, occasioned by drinking, as the witness supposed, because he had them on the passage out, after drinking. The captain fell from aloft, while on the cruise, and injured his knee and ankle.</p> <p>Rule testified as follows: “ We cruised two weeks off the islands, and then proceeded to the westward, touching at the islands. We got recruits of fresh provisions, fruit, &c., and the captain got some liquor. After we left Roratongo, the captain had rum fits, and ordered the ship to stand in for the Island Penni, and others of the Society Islands, so as to endanger the safety of the vessel and the lives of the crew. We continued to cruise for some time, without attempting to whale much, or paying any regard to a voyage.”</p> <p>Oil the arrival of the ship at Tahiti, the second time, the first mate, Miller, went on shore, with a boat’s crew, to the United States consul, and informed him of the conduct of the captain, and that he was in such a deranged state of mind, from excessive drinking, that he (the mate) wished to have the vessel brought into port. The consul thereupon went on board the ship, with a surgeon, and found the captain lying in his cabin perfectly helpless, yet obstinately refusing to permit the ship to enter the harbor. The consul was informed, that, during the whole time since the vessel sailed from Tahiti, not one hour had been employed in cruising for whales, but, on the contrary, that the captain had been running the vessel from one island to another, endangering the lives of the crew, and exposing the ship to capture by his foolish temerity at savage islands; and that, in consequence of these things, the crew were not only unwilling to proceed farther with captain Plaskett, but were determined, if the consul left the ship without bringing her to anchor, to allow her to run on shore ; neither officers nor men considering themselves safe with one whom they believed to be a madman. The ship was consequently brought in to an anchor, by the direction of the consul. The men who shipped at Tahiti, for the cruise, having served the time specified, were discharged. Many left without being discharged. At the end of ten days there were only two remaining.</p> <p>The witness, Baker, thus describes the conduct of the captain, and the condition of the ship, after she was carried into Tahiti, and brought to anchor the second time: “ The ship lay at Tahiti, deserted by all her officers and °rew, except myself and a boy, during much of the time. The beach combers would come off with an order from the captain and live on board, and the ship was a rendezvous for many of this kind of persons, until the consul took charge of her. Pretty soon after we came into Tahiti, the captain began to sell things from the ship, and continued selling until the consul took possession. He sold boats, casks, oars, iron hoops, slops, tobacco, domestic goods, carpenters’ tools, crockery, barometer, spyglass. I have no means of forming an opinion of the value of what he sold. The captain continued drinking excessively, all the time we lay at Tahiti, and there had falling fits, and by his conduct the voyage was completely broken up.”</p> <p>De Lacy testified as follows: “ The second time the ship came in, it was some "weeks before I saw captain Plaskett. He was carried up in a weak, deplorable condition to Mrs. Shaw’s, and there he. remained. I saw him occasionally, in a weak and wild state. He appeared very strange. It was about two months before he got out. He got out four or five weeks, perhaps, before the ship left. I do not recollect as to the time. After he got out, he was sometimes pretty fair; at other times, he looked as if he had been drinking. He was walking about, taking but little concern in the ship’s affairs. He did not go on board to my knowledge. I mean to say, that the captain was not competent to conduct the affairs of the ship, when he came in the second time, because he came ashore half a madman, with occasional fits, and from his being a drunkard. He did not continue in this deranged state of mind till I left. When he got collected, and when he did not drink, he was the man. Captain Plaskett did not take charge of the ship, when he got collected. He was not always in a sane mind ; all this was the effect of liquor.”</p> <p>The consul’s statement, with regard to the condition of the vessel, and the conduct of the captain, after the second arrival at Tahiti, was as follows:</p> <p>“ The ship became a place of resort for scoundrels of all nations, and a refuge for deserters. Captain Plaskett sent every one on board who applied. Complaints were daily made by the police of disturbances of constant occurrence on board the Timoleon. The ship lay exposed to the rays of the tropical sun, burning her decks; her sides were becoming bad, her rigging was rotten, her sails were spoiled by mildew ; and two months’ longer detention would have required $2000 repairs absolutely necessary to send her to sea. As it is now, during the time she has already been here, the injury she has sustained by this exposure and neglect, is greater than would have occurred under ordinary circumstances, in the space of an eight months’ cruise. Remonstrance with captain Plaskett was of no avail. He had, since his arrival, again commenced his course of dissipation, although confined to his room, and I seldom if ever found him really rational. He has always admitted, that his health is so far gone, as to render it impossible for him to take charge of the ship again, yet would not consent voluntarily to resign his command, unless I would permit the sale of what oil, stores, &c. he wished, and the proceeds placed at his disposal.”</p> <p>The British surgeons, Johnston and Cary, who visited captain Plaskett, at the request of the consul, certified as folloivs: “ We have, at different times, visited captain William Plaskett, and consider, that independent of the debilitated state in which we have found him, which, of itself, will prevent for many months the possibility of the exercise of the duties of a commander, we do not consider him at all times sane. We find that he is subject to fits of epilepsy, to an alarming extent; in one instance, having fifteen during a few hours. By any of these he is liable to be carried off. We find that excitement deranges his intellect, and no excitement can exert a more delirious influence than that caused by the use of intoxicating drinks, in which, we are positive, he constantly indulges. Nor do we consider that in his present state he is fit to take immediate passage for the United States.”</p> <p>The consul, under these circumstances, deemed it to be his duty to deprive captain Plaskett of his command, and to send the vessel home to her owners.</p> <p>It appeared, from the consul’s letter, that, for twenty years previous, captain Plaskett had been considered, “ in point of energy and ability, for the prosecution of a whaling voyage, second to none sailing from the United States.” Miller testified, that he sailed with captain Plaskett the voyage before, a four years’ voyage; during which he was not intoxicated either at sea or in port; that he was in the habit of taking his glass at eleven and four o’clock, and in the evening ; but that he never drank enough to injure him in the management of the voyage. Rule testified, that Flaskett was always considered a skilful ship-master, and one who was well calculated to obtain a voyage. This witness never heard or knew of his intemperance, till he saw it on the voyage in question.</p>

<p>O. P., by his last will, bequeathed the residue of his estate, to accumulate in the hands of his executors until it should amount to the sum of #50,000, and then to be paid over by them, for the establishment and support of a free English school in the town of N., to a board of trustees to be appointed by the selectmen of N., who, besides appointing the trustees, were “ always and at all times to have and exercise the right of visitation, for the purpose of looking to the security of tn« funds, and that the interest or income of them is applied according to the bequest : ” The will also provided, that vacancies in the board of trustees, after the first appointment, should be filled by nomination from the board, subject to the approval of the selectmen; that in the selection of trustees, no reference should be had to their places of residence, but only to their qualifications for the trust; that the trustees should invest the whole principal in good and sufficient securities, bearing interest or producing income, to the satisfaction of the select* men; and that such principal should remain a permanent fund, the interest or income only of which should be applied to the establishment and support of the school: The purposes of the bequest were declared by the testator to be, “ for the establishment and support of a free English school in N. for the instruction of youth wherever they may belong; the youth to be instructed in reading, writing, and arithmetic, and particularly in the English language, and in those branches of knowledge, necessary to the correct management of the ordinary affairs of life, whether public or private, but not in the dead languages: ” When the residue thus bequeathed had accumulated to the sum of #50,000, the selectmen of N. appointed a board of trustees to whom the same was paid over by the executors, and the trustees were subsequently incorporated by an act of the legislature, with the usual powers and duties of corporations, and with liberty to hold real and personal estate, the net yearly income of which should not exceed #6000, to be applied exclusively to the purposes of education, in conformity with the provisions of the will of -O. P : The trustees, in the execution of their duties, proceeded to erect a building suitable and adapted for the instruction of pupils of both sexes, and announced their determination and intention to establish therein, and to appropriate the income of the fund to support, a school for the instruction of such pupils: The inhabitants of N., thereupon, at a lawful town meeting, appointed a committee to confer with the trustees on the subject, with “ authority to institute amicable proceedings, if necessary, before the S. J. O. for the purpose of determining whether the fund could be applied to the erection and support of a school for both sexes, or for the male sex only: ” The trustees declined proceeding in the manner proposed, and the committee, by three of their members, caused the district attorney to file an information in the nature of a bill in equity in the S. J". C. against the trustees, praying the court to declare, that, according to the true intent and meaning of the testator, the fund was to be appropriated to the establishment and support of a school for boys only; and to restrain the trustees from applying the income of the same, or any part thereof, to the support of a school for girls: It was held: —</p> <p>1. That the act of incorporation did not vary the powers or duties of the trustees, or change the character of the school.</p> <p>2. That the trustees constituted an eleemosynary corpqration, founded by the testator, or donor, for the purposes of education; which was in its nature the establishment of a charity, looking forward to perpetual existence.</p> <p>3. That the selectmen, in their character of visitors, were not the agents, and did not act directly upon the interests, of the town; that they were not accountable to the town for their acts as such visitors; and that, in the exercise of their</p> <p>• visitatorial powers, they could not be directed, controlled, limited or restrained by the town.</p> <p>4. That when a general visitatorial power is provided by the founder of an eleemosynary corporation and foundation for chanty, no court either of law or equity will interfere to control or direct the ordinary exercise of such power; except when the visitors, as such, act contrary to law in a matter amounting in effect to a breach of trust.</p> <p>5. That, by the terms of the will, the selectmen had a general visitatorial power, as to the charity in question, extending to all cases not amounting in law to a breach of trust, and that their decisions within the scope of their authority were final.</p> <p>6. That the selectmen being constituted by the founder a tribunal to superintend the doings of the trustees, to correct their mistakes, and to restrain all abuses of authority by them, it was for the selectmen, in the first instance to decide whether any act complained of as an erro' or mistake were such or not.</p> <p>T. That the trustees and visitors of a charitable institution, each in their own sphere, constitute the regular government of such institution; and, until they have acted finally, and in a manner contrary to law, and in violation of their trust, in reference to a particular matter, there is no ground for the interference of a court of equity.</p> <p>8. That as the selectmen, m the present case, had. not acted, m their visitatorial capacity, upon the alleged violation of their duty by the trustees, the bill could not be maintained.</p> <p>9. That the description in the will, of the objects of the testator’s bounty, was oroad enough to embrace children and youth of both sexes, and did not limit the school to the instruction of either to the exclusion of the other; and, therefore, that if the visitors had acted and concurred with the trustees, in their construction of the will, in this respect, there would have been no breach of trust or violation of duty, on the part of the latter.</p>

This was an action on the case, to recover damages of the defendants, for an injury sustained by the plaintiff, by reason of the defendants’ negligence in not making and maintaining a fence against the plaintiff's land, on the line of their railroad in Andover. The injury alleged was the loss of the plaintiff’s cow, which was killed on the track of the defendants’ road, by one of their locomotives.

<p>This was an action on the case, to recover damages of the defendants, fo> an injury sustained by the plaintiff, in consequence of collision, at a crossing, with a locomotive engine, driven by the- servant of the defendants.</p> <p>At the tria, which was before Wells, C. J., in the court of common pleas, it was in evidence, that the engine which occasioned tt.e damage had been recently repaired, and was being proved at the time of the collision; that the regular train had passed the crossing just before the collision took place; and that, from the formation of the ground, and an interposing growth of wood, a bell, if rung according to the provisions of the Eev. Sts. c. 39, § 78, could not be heard by a person approaching the crossing by the road on which the plaintiff came upon it.</p> <p>The defendants contended that they were bound only to the exercise of ordinary care, and they offered to prove, that they used as much care as those having charge of engines usually exercised in passing railroad crossings ; but the judge ruled, that such proof would not of itself amount to a justification; and, in relation to the care which the defendants were bound to exercise, instructed the jury as follows: —</p> <p>“ That the defendants were bound to exercise reasonable care in passing over crossings with their engines ; that if railroads had existed for so long a time that a practice or usage had prevailed, settling what was proper and reasonable care to be observed at crossings, the care ordinarily observed would be the test of reasonable care; 'but, in consideration of the recent introduction of the use of railroads, the proper course for the jury, in the present case, would be to decide from their own judgment, whether, in view of all the circumstances of the case, and the explanatory evidence, a reasonable care had been exercised by the defendants.”</p> <p>The testimony of persons experienced in the management of locomotive engines, giving their opinion as to whether the evidence showed that reasonable care had been used in the present case, and what was the proper method of managing engines at crossings, was admitted without objection.</p> <p>The defendants further contended, that if they had complied with the provisions of the Rev. Sts. c. 39, § 78, in relation to notices, &c., they were not liable for any damage which might occur from collisions at crossings, unless they were guilty of gross negligence. But the judge ruled, that a compliance with these regulations did not excuse the defendants from the use of the requisite care, when circumstances rendered it reasonable for them to take other precautions in order to prevent a collision.</p> <p>The plaintiff contended, that the place where the collision occurred, from its dangerous situation, was an unsuitable one for proving an engine; and, as the bell could not be heard at that place, that the whistle should have been sounded; but the court left it to the jury to say, whether, in either of these particulars, the conduct of the defendants showed a want of reasonable care.</p> <p>The jury returned a verdict for the plaintiff, and the defendants thereupon alleged exceptions to the several rulings and instructions above mentioned.</p>

<p>The plaintiffs brought their action of debt, to recover the balance alleged to be due on an award of arbitrators. The case was submitted to the court upon an agreed statement of facts.</p> <p>The plaintiffs and defendant were formerly partners, engaged in the business of manufacturing paper, under the name and style of Adolphus Durant & company. The partnership having become insolvent, a dissolution took place; and the plaintiffs subsequently filed a bill in equity against the defendant, in which they alleged, that, at the dissolution of the partnership, the defendant would not deliver over the property and effects, according to his agreement, to the plaintiffs, to enable them to pay the debts of the firm, and to divide the surplus, if there should be any, between the parties, or come to a just and fair account and settlement with the plaintiffs. The bill was filed at the October term, 1841, of this court, in Middlesex, when the defendant also appeared, and the cause was continued from term to term, until October, 1844, when there was no appearance of either party, and the cause was terminated by an entry on the docket to that effect.</p> <p>Whilst the bill in equity was pending, the parties agreed to submit all matters in difference between them, relating to their accounts and dealings as partners, and concerning which the suit in equity was then pending, to the determination of James C. Merrill, Moses Grant, and Edmund P. Tileston; and for that purpose, the plaintiffs on the one side, and the defendant on the other, executed and delivered each to the other a bond, bearing date the 11th of August, 1842, in the penal sum of ten thousand dollars, with a condition that the several obligors therein should abide by, perform and fulfil the award that should be made by the arbitrators.</p> <p>The bond given by the defendant to the plaintiffs, after stating by way of recital the relation previously subsisting between the parties, and the pendency of the bill in equity, and that it had been “ agreed to submit all legal and equitable claims and demands between said parties, and each and every of them, to the arbitration, award and determination ” of the arbitrators above named, contained the following condition, namely: That if the obligor, his heirs, &c., “ shall and do, for and on his and their parts, in all things abide by, perform, fulfil, and keep the award, arbitrament and determination and judgment, which shall by them, the said arbitrators, or a major part of them, be made of and concerning the premises so submitted to them as aforesaid, so as such award, arbitrament, determination and judgment of the said arbitrators or the major part of them be by them made in writing under their hands, ready to be delivered to the parties within two months ensuing the date of these presents, unless prevented by the act of God, then the above written obligation shall be void and of no effect, otherwise shall remain in full force and virtue.”</p> <p>The time for making the award was twice extended, and the agreements therefor, made and signed by the parties, at their respective dates, were written on the bond. The first, signed by the defendant only, was in these words: “ The</p> <p>said parties agree, that the time for making said award shall be extended sixty days from this date, September 27th, 1842.” The other, signed and sealed by all the parties, was as follows : “ 1843, March 28th. It is further agreed by the par-</p> <p>ties, that the report of referees shall be deemed and taken to have been made in due season, if made at and during the session of the court of common pleas, to be holden at said Boston, on the first Tuesday of April next; it being agreed, that the award be made to said court, judgment to be entered and execution to issue accordingly.”</p> <p>The arbitrators, after having heard the parties, made their award in writing under their hands, on the 27th of April, 1843, in favor of the plaintiffs for $5996-37, “ together with costs of court, to be taxed according to law.” The arbitrators taxed the costs of the arbitration at $360, one half of which they directed should be paid by the defendant, and concluded their award in the following words: “ This award to be entered at the present term of the court of common pleas, now held at said Boston, within and for said county of Suffolk. Judgment to be entered, and execution to issue accordingly.”</p> <p>The award was made and signed by the arbitrators, and delivered by them open to the plaintiffs, during the sitting of the court of common pleas, for the county of Suffolk, at the April term thereof, 1843. But the plaintiffs did not, at that term of the court, nor at any term afterwards, offer the award to the court of common pleas, for judgment and execution thereon.</p> <p>On the 20th of October, 1843, the defendant took the benefit of the insolvent law, and on the 17th of January, 1844, the plaintiffs proved the award, and it was allowed, as a claim against the estate of the defendant.</p> <p>On the 14th of July, 1845, the assignee of the defendants’ estate paid the plaintiffs a dividend on their claim, amounting to $310-34, and on the 16th of January, 1846, another dividend, amounting to $79-24.</p> <p>The defendant, on the 17th of January, 1844, was refused a certificate of discharge by the master in chancery, before whom the proceedings in insolvency were conducted, and thereupon appealed to this court, by which, on a hearing of the parties, the certificate was also refused.</p> <p>It was agreed, that if any of the facts inserted in the statement, in favor of either party, would not be admissible evidence for such party before a jury, upon objection made by the other, such facts should be disregarded by the court.</p> <p>If the plaintiffs are entitled to maintain this action, judgment is to be rendered in their favor, for the amount due on the award, with interest from such time as the court shall direct, and costs; otherwise the plaintiff is to become nonsuit, and the defendant to recover his costs.</p>

<p>The defendant was tried in the court of common pleas before Mellen, J., on an indictment for adultery. The indictment contained two counts. In the first count, the offence was charged to have been committed with Esther Bradford, spinster, the defendant being a married man, and having a lawful wife alive, other than the said Esther Bradford. The second count alleged, that the defendant “ did commit the crime of adultery with a certain woman whose name to said jurors is unknown, &c., he the said Tompson being then and there a married man, and having then and there a lawful wife alive other than said woman whose name to said jurors is unknown as aforesaid.”</p> <p>At the trial, evidence was introduced on the part of the prosecution tending to show, that the person, with whom the alleged offence was supposed to have been committed, was known, and that her name was Esther Bradford; and, upon this evidence, the jury were instructed, that if they doubted whether the true name of the woman was Esther Bradford, they might find the defendant guilty on the second count, if the other necessary facts were proved.</p> <p>The jury found the defendant not guilty on the first count, and guilty on the second; and he thereupon alleged exceptions to the instruction above stated. He also moved in arrest of judgment, on the ground, that there was no sufficient description, in the second count, of the person with whom the offence was therein alleged to have been committed; and that it was not sufficient to charge, that the name of such person was unknown. This motion was overruled, and the defendant excepted.</p>

The defendant was tried in the court of common pleas, before Mellen, J., and convicted, on an indictment under the Rev. Sts. c. 130, 2, charging him with the offence of continuing to cohabit in this state with a second wife, having a former wife living.

<p>Where a writ was by mistake made returnable at Salem, instead of Ipswich, and before the expiration of the time of service, the plaintiff caused the defendant to be notified of the mistake, and to be served with a new summons in which the mistake was corrected, and the action was regularly entered, it was held, that the writ might be amended.</p>

<p>Where a defendant, being convicted in the court of common pleas on an indictment which is insufficient, brings his case before this court on exceptions to the decision of the judge in the court below, overruling the defendant’s objections to the ■ indictment, and the exceptions are sustained, the proper order is that the judgment be arrested.</p> <p>An indictment, for keeping open a shop on the Lord’s day, in contravention of the Eev. Sts. c. 50, § 1, must contain a statement of the purpose for which the shop is kept open, and it must appear from such statement, that the purpose is an unlawful one.</p>

This was an indictment against the defendant, containing five counts, the first on the first section and the remaining counts on the second section of the forty-seventh chapter of the revised statutes.

<p>Under the provisions of the act of 1847, c. 224, the mayor and aldermen of the city of Boston have authority to make regulations as to the use of omnibuses and stage coaches, for the transportation of persons for hire from Roxbury to Boston and from Boston to Roxbury, while passing over and using the public streets of Boston; if, in the opinion of the mayor and aldermen, from the character of such vehicles, as to size, numbers, or mode of use, they would otherwise endanger or greatly incommode the public generally, who have occasion to use such public streets; and such regulations may prescribe certain streets as the route of travel for the vehicles mentioned in the same, and may provide for their exclusion from certain other streets; provided such regulations are “ necessary and expedient for the due regulation/* within the city of Boston, of the omnibuses and other vehicles therein specified.</p> <p>The act of 1847, c. 224, does not authorize the mayor and aldermen of Boston to require the payment of money to the city by persons resident in Roxbury, who may set up and drive omnibuses and stage coaches from Roxbury to Boston and from Boston to Roxbury, for the conveyance oí persons for hire, as a tax or duty upon such vehicles, before so using the same.</p> <p>The act of 1847, c. 224, does not authorize the mayor and aldermen of Boston to pass an ordinance, requiring persons resident in ether towns and cities, and setting up and driving omnibuses and other vehicles from, such towns or cities to the city of Boston, and back to their respective stations in such other towns and cities, for the transportation of passengers for hire, to obtain a license therefor, (irrespective of the requirement of the payment of money for the same), from such mayor and'aldermen.</p>

<p>The defendant was tried in the court of common pleas before Cushing, J., on an indictment, charging him with an assault upon Joseph Sanderson, a constable of the city of Cambridge, and with hindering and opposing Sanderson, while engaged in the due and lawful execution of the duties of his office.</p> <p>■The defendant admitted the commission of a technical assault upon Sanderson, and that he hindered and obstructed him in the execution of his office. But he introduced evidence, that Sanderson, at the time of the assault, was forcibly endeavoring to enter the defendant’s house, in order to serve a warrant in his possession, for the apprehension of one Toomey; that Sanderson was not otherwise authorized to enter the defendant’s house than for the purpose of making such arrest; that the warrant was issued by Abraham Edwards as a justice of the peace; that, within seven years previous, Edwards had been duly appointed and qualified as a justice of the peace; and that within three months, he had been duly appointed and qualified as a constable of the city of Cambridge, and held that office at the time of the issuing and service of the warrant against Toomey.</p> <p>Upon this evidence, the defendant requested the judge to instruct the jury,- that the office of a justice of the peace was inconsistent and incompatible with that of a constable; that the acceptance of the latter by Edwards vacated his office of justice of the peace; that the warrant, under which Sanderson was assuming to act, when assaulted by the defendant, was consequently void ; and therefore that the defendant’s resistance of Sanderson was lawful.</p> <p>The presiding judge declined to give these instructions, but instructed the jury, that the acceptance of the office of constable by Edwards did not vacate his office of justice of the peace. The jury thereupon found the defendant guilty, and he alleged exceptions.</p> <p>The defendant also moved in arrest of judgment, in this court, on the ground, that there was no sufficient allegation in the indictment, that the defendant, at the time of the alleged assault, hinderance and obstruction, knew that Sanderson was a constable.</p> <p>The indictment alleged, that the defendant made an assault upon Sanderson, “ he the said Joseph Sanderson being a constable of the said city of Cambridge, legally authorized and duly qualified to discharge the duties of said office, and being then and there in the due and legal exercise and performance of said duties of said office, and him, then and there, while he the said Sanderson was in the due and lawful execution of his said office, unlawfully, knowingly, and designedly did hinder and oppose,” <fcc.</p>

<p>The defendant was one of several defendants, who were tried in the court of common pleas, before Mellen., J., upon an indictment in which they were charged with breaking and entering the treasury of the city of Charlestown, and stealing therefrom certain gold coin, and sundry bank bills, enumerated in the indictment.</p> <p>The indictment set forth, that the defendants, “ on the twelfth day of November, 1847, with force and arms, at Charlestown, in the county of Middlesex aforesaid, the city hall of the city of Charlestown, in said county, there situate and erected for public uses, to wit, the transaction of the municipal business of said city of Charlestown, in the nighttime of said day, unlawfully and burglariously did break and enter, and ten pieces of gold coin, current within this commonwealth, by the laws and usages thereof, called eagles, of the value of ten dollars each, ten other pieces of gold coin current within this commonwealth, by the laws and usages thereof, called sovereigns, of the value of five dollars each, and sundry bank bills amounting together to the sum of five hundred dollars, and of the value of five hundred dollars, of the goods, moneys and chattels of the said city of Charlestown, then and there, in the city hall aforesaid, being found, feloniously did steal, take and carry away, in the city hall aforesaid, against the peace,” &c.</p> <p>At the trial, on motion of the district attorney, Charles R. Train, esquire, the court permitted George Farrar, esquire, a counsellor of this court, to aid in conducting the cause on the part of the commonwealth; and Mr. Farrar did, accordingly, under the direction of the district attorney, open the case to the jury, and examine and cross examine several of the witnesses.</p> <p>The district attorney offered evidence to show, that certain tools and implements, being burglars’ tools, to wit, pistols, shotted colts, skeleton keys, key-bits, an instrument called a safe-borer, and a screw-wrench, were found in the possession of the defendant, at the time of the arrest for the offence set forth in this indictment; although it was admitted by the district attorney, that some of the tools were not used in committing the offence charged in the indictment, and that some portion of them, to wit, the shotted colts and the screw-wrench, might not have been so used by the defendant. The court admitted this evidence, and permitted the tools so found to be exhibited to the jury.</p> <p>The district attorney, having suggested that certain portions of the stolen property were seized at the time of the arrest of the defendant, and were at the time of the trial held in the custody of the officer by whom the arrest was made, offered the treasurer of the city of Charlestown as a witness, and proved that since the stealing, as alleged in the indictment, the treasurer had had the property so stolen from the treasury allowed him on the settlement of his account with the proper officers, and that his accounts were settled in conformity with such allowance. The court admitted the treasurer as a witness.</p> <p>The defendants being convicted, Williams alleged exceptions to the above order and rulings.</p>

The defendant was included in the indictment upon which Williams was tried, as stated in the preceding case, and was tried at the same time and convicted.

<p>The plaintiff brought trover to recover the value of a stock of books, stationery, and other articles enumerated in the writ, and therein alleged to have been converted by the defendant, on the 17th of July, 1846. The writ was dated September 10th, 1846.</p> <p>At the trial before Metcalf, J., the plaintiff, to prove his case produced a mortgage embracing all the articles enumerated in the writ, made to him by J. J. Judkins, then a bookseller in Lowell, dated June 19th, 1846, and recorded the next day ; and also an attested copy of an original writ, from the circuit -court of the United States, for the district of Massachusetts, with a return thereon of an attachment of the mortgaged property by the defendant, the marshal of the district, in which writ, Charles T. Gill, of Nashua, N. H., was the plaintiff, and Judkins, the mortgagor, was the defendant.</p> <p>There was parol testimony tending to prove, that, by the defendant’s direction, some of the property embraced in the plaintiff’s mortgage, was removed from Judkins’s store on the 15th of July, 1846.</p> <p>The plaintiff also produced a written demand made by him upon the defendant, on the 7th of July, 1846, pursuant to the several statutes relating to the attachment of mortgaged personal property.</p> <p>The defendant justified by virtue of the writ' put into his hands for service against Judkins, which, it appeared, was duly entered in court and prosecuted to final judgment and execution. The property attached was seized on the execution and sold at public auction by the defendant.</p> <p>The defendant also justified, as the agent of Gill, the attaching creditor, who, as the defendant alleged, was the purchaser and assignee of a prior mortgage of the whole or the greater part of the property embraced in the mortgage to the plaintiff.</p> <p>It appeared in evidence, that Judkins executed a mortgage to Samuel J. Varney and Ethan Burnap, of Lowell, dated on the 28th of April, 1846, and recorded the same day, of all his stock in trade, a particular schedule of which was annexed to the mortgage, embracing, as the defendant insisted, all or nearly all the property described in the schedule attached to the plaintiff’s mortgage. Judkins remained in possession of the property thus mortgaged until the 30th of June, 1846 when the defendant, by virtue of the writ in favor of Gill took possession of Judkins’s store, and placed a keeper therein over the property attached. On the 8th of July, 1846, Varney and Burnap made a demand upon the defendant pursuant to the statutes referred to above.</p> <p>The defendant introduced Varney, the mortgagee, as a witness, who testified, in substance, that after the defendant put the keeper into Judkins’s store as above stated, and before the expiration of ten days from the demand made by the witness and Burnap upon the defendant, the attorney of Gill made a verbal agreement with the witness, by the terms of which, the defendant, by his and Burnap’s permission, was to remove a portion of the property and the keeper from Judkins’s store, and the witness and Burnap were thereupon to take possession of the residue of the property, by virtue of their mortgage, and to proceed, as soon as they lawfully might, to apply the same or the proceeds thereof to the payment of the debt which the mortgage was given to secure, and Gill was to pay them the balance of their debt not satisfied by the property.</p> <p>The witness also testified, that this agreement was performed by all the parties; but that the formal transfer or assignment of the mortgage, from the mortgagees to Gill, was not executed until February 12th, 1847, after the sale by the defendant on the execution, (which was on the 6th of February,) of the goods attached by him ; that, on the 16th of July, 1846, the witness and Burnap took possession, by virtue of their mortgage, of all the property which they found in Judkins’s store, and immediately proceeded, by the written consent of Judkins and of the plaintiff, to sell the same and apply the proceeds to the payment of the debt secured by their mortgage; that there remained due, after all the proceeds of the property had been applied to their, debt, about two hundred dollars, which was paid to them by Gill; and that the witness and Varney executed an assignment of the mortgage upon the back thereof to Gill, according to the agreement and understanding with Gill’s attorney.</p> <p>It appeared, also, that after the assignment by Varney and Burnap to Gill, the latter, on the 1st of December, 1847, gavv the notice required by the statute for the foreclosure of a mortgage of personal estate, and that the time provided by the statute for the redemption of such mortgages had expired.</p> <p>The defendant offered in evidence an instrument signed and sealed by Judkins and also by the plaintiff, on the 21st of July, 1846, by which Judkins,—first, reciting that he had given a mortgage of his stock to Varney and Burnap, as already stated, and that the condition of the same being broken, the mortgagees were in legal possession of the property,— consented and agreed, that Varney and Burnap might proceed forthwith to sell and dispose of the same, in such manner as they might deem proper, to the full amount of their mortgage ; and that they might proceed, in like manner, to sell and dispose of the whole of his stock, whether included in the mortgage or not, and hold the proceeds thereof in trust for himself and his creditors. By the same instrument, the plaintiff, reciting that he had a claim by mortgage upon certain articles of the mortgaged property, consented and agreed that the same might be sold and disposed of by Varney and Burnap, upon the terms and conditions, and in the manner and for the purposes, therein before specified.</p> <p>The defendant thereupon contended, that the plaintiff, bj signing this agreement, had waived his right of action, in the present form, against the defendant, and against Varney and Burnap, and all claiming under them; but the judge ruled, that this action was not barred by such agreement.</p> <p>The defendant requested the judge to rule, that the attachment made by the defendant, being by virtue of process issued from the circuit court of the United States, and authorized and regulated by the judiciary act of 1789, could not be affected by any law of this state subsequently enacted relating to attachments of property, and that the plaintiff’s mortgage, the mortgagor being in possession, could not be set up against the attachment; but the judge declined so to rule.</p> <p>The defendant also contended, that the plaintiff’s mortgage was fraudulent, and void as to the creditors of Judkins ; but the jury found otherwise and returned a verdict for the plaintiff</p> <p>If, upon the facts in the case, the court should be of opinion, that this action can be maintained, they are to pass such order as shall be just and legal for the assessment of damages, and a hearing is to be had for that purpose. If the action cannot be maintained, the plaintiff is to become nonsuit, or a new trial is to be granted, as the court may order.</p>

This was a bill in equity, the nature of which, and the facts therein alleged, are sufficiently stated in the opinion of the court.

These were actions on the case, brought by the respective plaintiffs against the defendants, to recover damages for injuries severally sustained by the former, through an alleged defect in a public highway in Andover, by means and in consequence of one and the same accident.

<p>This was an action of assumpsit, to recover the sum of $33-60, with interest, being the amount of a tax assessed by the defendants upon the plaintiff, for the year 1845, and paid by the latter, under protest, on the 18th of November, in that year.</p> <p>The case was submitted to the court of common pleas upon an agreed statement of facts, upon which the court rendered judgment for the defendants; and the plaintiff thereupon appealed to this court.</p> <p>It appeared, from the statement filed in the court below, and additional facts agreed in this court, that the plaintiff, at the time of the assessment, was a professor of mathematics and astronomy in Harvard College, receiving a salary of $2000, a -year ; that he was and had been in the performance of his duties as such professor, and was daily taking a part in the instruction and government of the college, and had no other occupation or employment; that the tax in question was assessed upon a lot of land, with a dwelling-house standing thereon, occupied exclusively by the defendant and his family; that the land was part of a larger tract purchased by the president and fellows of Harvard College in the year 1835, which had never previously formed a part of the college yard, but which was soon after taken into the enclosure, so called; that the part of the land on which was the house occupied by the plaintiff was surrounded by a fence forming a separate enclosure in the college yard ; that since the purchase of the land by the college, a tax had been annually assessed by the defendants and paid by the college ; that, in the year 1844, the president and fellows of the college built and now own the house so occupied by the plaintiff and his family, and that the plaintiff pays rent therefor, at the rate of $400 a year; that the income of the real estate, which was owned by the college and was under its control, at and before the date of the purchase aforesaid, exceeded five hundred pounds ; and that the tax was paid by the plaintiff, after such a demand had been made on him as to entitle him to recover the same in this action, if the tax was not legally assessed.</p> <p>If. the tax was legally assessed, the plaintiff is to be non-suited ; otherwise he is to have judgment for the amount paid by him with interest.</p>