Volume 6 — Massachusetts Reports

<p>The writ of error in this case issued to the Court of Common Pleas for this county, to remove the record of a judgment rendered there in favor of the defendant in error, upon an appeal made by the plaintiff in error, from a judgment given against him by a justice of the peace.</p> <p>The original suit was replevin of cattle by a writ issued by the justice, who, on issue joined before him, gave judgment, that Wood, the original defendant, recover against Holmes, the original plaintiff, one dollar damages and costs. From that judgment Holmes appealed to the Common Pleas ; and there Wood, waiving his plea before the justice, came and defended, &c., and reserving liberty to give any special matter in evidence under the general issue, pleaded non cepit to the country, which was joined by the [*2] * plaintiff Holmes, and tried by a jury, who found that Wood, the defendant, took the cattle damage-feasant in his field, and rightfully, and assessed his damages at two dollars. Upon this verdict, the Common Pleas rendered judgment, that the defendant, Wood, recover against the plaintiff, Holmes, the sum of two dollars damage and costs of suit.</p> <p>The writ of error was sued to reverse this judgment, and, among other errors, the general error was assigned. The defendant in error appeared and pleaded in nullo est erratum. — No argument was had.</p>

<p>A judgment of the Court of Common Pleas, rendered upon the default of the defendant, is valid, although it does not appear explicitly that the Court inquired into the damages.</p> <p>A writ of error does not lie, where the party aggrieved is entitled to a remedy by appeal.</p> <p>Where the Court quash a writ of error, as having improvidently issued, they do not award costs to the defendant in er,ror.</p>

This was a writ of entry sur disseisin, in which the demandant counts on his own seisin, and on a disseisin by the tenant. The tenant, under a leave granted him to plead double, pleaded, 1. The general issue of nul disseisin, which was joined by the demandant. And, 2. in bar that the demandant was never seised of the demanded premises in manner and form as he in his declaration has alleged.

<p>When the selectmen of a town locate a town way, they are not to estimate the damages sustained by the owner of the land over which the way passes; but if they cannot agree with the owner, he must make application to the Sessions, now the Common Pleas.</p> <p>A way laid out by the selectmen from one part to another of a county road, may yet be a town way for the convenience of the inhabitants, and properly laid out by the selectmen.</p> <p>When a town way has been laid out by the selectmen, and approved by the town, it is immediately a way, although a party aggrieved by the location has a year to apply to the court for a discontinuance.</p> <p>A meeting of a town for the choice of representatives, and for the transaction of the ordinary business of the town, may be called by one warrant, distinguishing the different classes of voters.</p>

The plaintiff, holding a note, by which the defendant, Center, and six others, jointly and severally promised to pay him 800 dollars, had sued all the promisors, at the same term of the Common Pleas, as on several promises, and had recovered judgment against each for his damages ; and costs had also been taxed for him against one of the * promisors other than Center, [19*] and he moved for costs also in this action, which the court below refused to allow, alleging on the…

<p>This was an action of traver, for the conversion of a chaise and harness, the property of the plaintiff.</p> <p>The parties submitted the action to the decision of the Court upon the following facts, viz.: The defendant is a constable of the town of Concord, and an execution having duly issued from the Court of Common Pleas for this county, on a judgment there rendered against the plaintiff, directed to any constable of Concord, the same was delivered to the defendant to execute, he being by law authorized to execute it, according to the precept therein con tained. The execution was returnable to the Court of Common Pleas, to * be holden on the Monday preceding [ * 21 ] the third Tuesday of March, 1809. On that day, after the Common Pleas had been then holden, and after it had been adjourned to the next day, the defendant, under color of that execution, seized the plaintiff’s chaise and harness, and afterwards, in due form of law, advertised and sold the same to satisfy the execution, which on the following Saturday, the court being still in session, he returned with his proceedings thereon.</p> <p>If, on these facts, the Court should be of opinion that the plaintiff ought by law to recover in this action, the parties agreed to submit the question as to the amount of damages to the Court; otherwise the defendant was to recover his costs.</p>

<p>This was an action of trespass guare clausum fregit. The defendant pleaded in bar, that Jonathan Williams and Charles Williams, at the time when, &c., were seised in fee simple of an undivided moiety of the locus in quo, and that he, as the servant of the said Jonathan and Charles, and by their command, entered, &c-The plaintiff traversed that seisin, and tendered an issue to the country, which was joined ; and upon a trial before Parker, J., at the last November term in this county, a verdict was found for the defendant.</p> <p>From the report of the judge, who sat at the trial, the following facts appear: —</p> <p>In the year 1794 or 1795, one Adams, being seised in fee of the close, executed a deed purporting to convey the same in fee to Spaulding and Foster in equal moieties. They paid a part of the purchase money to Adams, and gave him a promissory note for the remainder, and entered and took possession of the close under that deed, and continued in possession until the 9th of September, 1805.</p> <p>On the 17th of July, 1805, Jonathan and Charles Williams, being creditors of Foster, (one of the purchasers, and a tenant in possession,) caused one moiety to be duly attached on their writ against Foster. Having prosecuted their suit to final judgment and execution, they, in March, 1806, and within thirty days after the rendition of judgment, caused their execution to be duly extended on the moiety attached, and seisin thereof was delivered to them.</p> <p>To defeat this title in J. and C. Williams, the plaintiff proved that the note given by Spaulding and Foster for the remainder of the purchase money, not being paid, was assigned to one Prescott, and that in June, 1805, he demanded payment or security from the promisors. As security, they delivered Adams’s deed of conveyance to them, which was not acknowledged nor recorded to [ * 25 ] Prescott, * and authorized him to sell the land, and on the sale to return their deed to Adams, and take from him a new deed to the purchaser, Prescott agreeing to account with them for the proceeds of the sale after their note was paid. In September, 1805, Prescott delivered to Adams his deed to Spaulding and Poster, and received from him a deed duly executed, purporting to convey the land to Prescott in fee, which deed was acknowledged and recorded, Adams, Prescott, and Foster, well know ing of the prior attachment of J. and C. Williams.</p> <p>The judge directed the jury that, by the deed from Adams to Spaulding and Foster, the land passed to the latter, notwithstanding the deed was not acknowledged or recorded; and the grantees having entered under the deed, and continued in possession until the attachment of J. and C. Williams, that attachment could not be defeated by a delivery of their deed from Adams over to Prescott, either before or after the attachment; that the fee of the moiety of the land was in Foster at the time of the attachment, so that the levying of the execution gave a seisin to the creditors ; that the taking of a new deed by Prescott from Adams, or the surrender of the old one, could not prejudice the title of the creditors under the execution, especially as Prescott, Foster, and Adams, all knew, at the time of this transaction, that Foster’s interest in the land was attached.</p> <p>The plaintiff moved for a new trial for the misdirection to the jury of the judge who presided in the trial.</p> <p>Stearns, in support of the motion for a new trial, contended that nothing passed by Adams’s deed to Spaulding and Foster, for want of acknowledgment and registry, and therefore paroi evidence ought not to have been received. For this position he relied on the provincial statute of 9 W. 3, c. 7, revised by the statute of 1783, c. 37, the construction of which is to be made by analogy to the established modes of conveying real estate in England.</p> <p>* Livery and seisin, if ever in use in the colony, were [ * 26 J neither generally nor long in use; and as the statute of enrolments was held not to extend to this country, the delivery of a deed of bargain and sale was sufficient to convey real estate until the colonial ordinance of 1641, and for most purposes until that of 1651.</p> <p>The principal object of the colonial ordinances, and of the provincial and revised statutes, was the same as the English statute of enrolments, viz., to prevent fraud by compelling purchasers of land to record their titles, and thus give notoriety to the transfer of real estate. And if a time had been limited for recording deeds under our statute, the English decisions would have been a guide to ours. In all other respects, it is apprehended their construction must be the same.</p> <p>When the deed is enrolled, it has relation back to the delivery, for the benefit of the bargainee, to avoid all mesne encumbrances. But the fee does not pass by the delivery of the deed. (1) So, under our statute, though the deed, without acknowledging and recording, is sufficient to hold the land against the grantor and hia heirs, it is not because the fee passed from the grantor by the delivery, but because he is estopped by his deed to claim the fee against the bargainee. If the fee passed by the delivery, then a second deed to a fair purchaser without notice, and first acknowledged and recorded, could convey nothing.</p> <p>But allowing that the delivery of a deed of bargain and sale raised a use which was immediately executed by the statute, still the use would not be absolute, but determinable on the event of six months passing before enrolment; and by analogy here, upon the event of the deed’s being cancelled or destroyed, so that it never could be recorded.</p> <p>As in England, without any act done, by the mere omission to enrol the deed, the use to the bargainee determines, and a use in fee results to the bargainor, so, under our statute, the use, if executed in the bargainee by the delivery of the deed, must, [ *27 ] by his destroying that deed, and * yielding the possession to the bargainor, be determined, and a use result to the bargainor.</p> <p>The words of the statute are very strong, and, unless its provisions are conformed to, the conveyance i,$ not good, except against the grantor and his heirs, unless in cases of actual fraud, or prior notice, which is constructive fraud. The present case is not within the exception, which establishes a deed against the grantor and his heirs; and it is believed that fraud will not be pretended.</p> <p>When Adams first sold the land to Spaulding and Foster, as he received but part of the consideration in money, and their notes for the residue, instead of giving a mortgage, they kept their deed un recorded for Adams’s security, and when Prescott became the holder of the same notes, being still unable to discharge them, they deposited the deed with him, agreeing that Adams might cancel it, and make a new one to Prescott or a purchaser under him. They all considered the title as still in Adams as a trustee, and intended it should so continue until he should realize the value. This is a very usual mode of transacting affairs of this kind among unskilful persons in the country.</p> <p>It was not fraudulent in Spaulding and Foster to omit recording their deed, when they had agreed that it should not be done until Adams was paid. And it would have been a gross fraud upon this latter, if they had voluntarily subjected this land, thus situated, to the payment of the debt of one of them to Williams.</p> <p>Great inconvenience would follow from determining that land may be attached by a creditor of the bargainee the moment the deed is executed. For where the agreement was, that a mortgage should be given to secure the purchase money, as there must be a moment at least between the delivery of the deed to the purchaser, and his delivering the mortgage, a creditor might seize that moment to attach the land, and thus deprive the grantor of his whole property.</p> <p>* The decisions on our statutes have turned upon the [ * 28 J priority of the recording, or the question of notice, or both, and have been made after both deeds had been recorded. The first point has no relation to the present case, the deed having been destroyed without recording. And as to the attachment, notice is immaterial. It is like the cases, under the 27 Eliz. c. 4, of voluntary conveyances to deceive purchasers. If the second purchaser knows of the first conveyance, he also knows that it is fraudulent by the statute, and therefore void. (2) So here, if Prescott, who was a creditor, knew of the attachment by Williams, he also knew that Spaulding and Foster had surrendered the possession, and given up their deed, according to the original understanding of the parties, and therefore considered the attachment void.</p> <p>But if the conveyance to Prescott had been fraudulent, that would not avail the defendant; for fraud can only defeat the fraudulent act; it cannot establish a defective title. To avail the defendant, the deed to Prescott must not only be void itself, — it must give a fee to Foster without any legal conveyance. And even if the deed to Prescott had been fraudulent, so that he could not avail himself of it, a subsequent conveyance to the plaintiff without notice would purge the fraud. (3)</p> <p>Our statute expressly saves the dower of wives in all lands taken fron their husbands by execution. In this case, then, Foster’s wife will be entitled to her dower in this land in virtue of the extent of Williams's execution, or the right of the latter is more perfect and extensive than it would have been if the first deed had been recorded.</p> <p>It will be noticed by the Court that here are no exclusively merl torious claims on the part of the attaching creditor. Prescott’s claim was the original purchase money of this very land. And it is surely as equitable, to say the least, that this land should go to pay for itself, as that it should be appropriated to pay another creditor.</p> <p>[ * 29 ] * On the whole, it is submitted to the Court, that there was at the time of the levy no such estate in Foster as could support it; and that there are not in the case any such grounds of fraud, as can authorize the Court to dispense with the requisitions of the statute.</p>

Debt on a replevin bond executed by William Neal as principal, and William Tyler, the defendant’s intestate, as surety, being the same bond which was in the case of Flagg vs. Tyler, [ante, vol iii. 303.] The original defendant having deceased, and his administrator having been admitted to take upon him the defence of the action before the former judgment was pronounced, a repleader was awarded by consent.

<p>The libellant presented his libel for a divorce during the sitting of the Court at the last April term in this county, and took out an order of notice to the respondent, to be served thirty days before this term, and personal notice was given by the sheriff pursuant to the order.'</p>

<p>A bequest was made to A B of ninety pounds, to be kept in stock, and the interest paid annually to her during her natural life, and, after her decease, to be equally divided among her heirs, lawfully begotten of her body ; and it was held, that A B was not entitled to the principal, but that the executor should retain it, paying over the income to A B during her life, and the principal to her issue after her death.</p>

<p>When the members of a' turnpike corporation have expressly agreed to pay the assessments that may be made by the corporation, an action lies for the corporation to recover the assessments ; but if there be no such agreement, the sole remedy for the corporation is by the sale of the shares of the delinquent members.</p>

<p>Where there is an agreement by parole to submit a dispute to the arbitrament of three, who all hear the parties, and two of them only make an award, the third dissenting from them, the award is not valid.</p>

<p>Assumpsit for money laid out and expended by the plaintiffs, in supporting a pauper alleged to have his settlement in Boxborough The cause was tried on the general issue, at the sittings after the last October term in this county, before Parker, J., and a ver diet taken for the plaintiffs, subject to the opinion [*51] * of the Court, whether the pauper was settled in Groton or Boxborough, from the facts reported by the judge who sat in the trial.</p> <p>It is reported that in January, 1803, the pauper, then being settled in Boxborough, purchased lands in fee simple in Groton, of a greater clear yearly value than ten dollars; that on the 17th of April in that year he removed from Boxborough on to these lands, and there lived, taking the profits thereof until his death, which happened in April, 1807; that on the 1st of April, 1806, within three years after he had removed to Groton, he mortgaged the same lands in fee, to secure the payment of 350 dollars, with interest; and deducting from the annual value of the land the yearly interest of the mortgage, there would not remain ten dollars by the year.</p>

<p>In debt, on a replevin bond, the defendants pleaded performance generally; the plaintiff replied, that he had judgment for a return, and that no return had been made; the defendants rejoined, that the plaintiff in replevin reviewed the action, that the now plaintiff had judgment and execution, on which the chattel replevied was seized and sold. The rejoinder was adjudged bad, as a departure from the plea in bar.</p>

Assumpsit on a promissory note subscribed by the defendant, of the tenor following, viz.: — “ Cambridge, Nov. 2, 1808. For value received, I, Timothy Fuller, as guardian of Edward Scott, of Cambridge, in the county of Middlesex, promise Joseph Forster to pay him two hundred, and, three dollars and seventy-two cents in six months and interest.

<p>Where A and B had, for the proper debt of A, given C two joint and several promissory notes for a specific quantity of merchandise, to be delivered at a place certain, at two several times, and A was summoned by a creditor of C, as his trustee; pending the original suit, the time for payment of the first note having arrived, B, the surety of A, paid it; A, not having satisfied the execution issued on the original suit, was sued in scire facias, pending which the time for payment of the second note arrived. A was discharged as trustee, but held to pay costs, not having submitted to an examination in the original action.</p>

This was an action of covenant brought by the plaintiffs, to recover the sum of 225 dollars, for rent alleged to be due from the ninth day of April, 1807, to the ninth day of January, 1808, of a chocolate mill demised by the plaintiffs to the defendants, by a certain indenture between the parties dated the third day of November, 1806.

<p>This was a libel for a divorce a mensa et thora for the extreme cruelty of the respondent.</p> <p>The evidence was, that, for a long course of time, the respondent had made use of brutal language and violent threats of personal abuse; and that, about six years since, he unjustifiably assaulted and beat her; after which fact the parties continued to reside together, the respondent still continuing to use the same abuse and threatening language.</p> <p>It was suggested for the respondent, that although the evidence of the personal violence used by him might have furnished a sufficient cause for a divorce, if it had been seasonably prosecuted, yet that the libellant, by her after cohabitation with him, had remitted her claim to a divorce, and had pardoned the outrage.</p>

The judgment which the writ of error in this case was brought to reverse, was rendered by the Common Pleas for this county, on the report of referees appointed by a submission entered into before a justice of the peace under the provision of the statute of 1786, c. 21.

An indictment found by the grand jury, at the last April term at Ipswich, against the defendant, states, that he, being an evil-disposed person, and contriving and intending one Benjamin Adams to deceive, cheat, and defraud, falsely pretended and affirmed to the said Adams, that his, the defendant’s, name was William Waterman; that he lived in Salem, and there kept a grocery store; that he wished to purchase, on credit of Adams, fifty pair of shoes, giving his own note as…

<p>Of the evidence necessary to support an indictment for a conspiracy. [The gist of the offence is a conspiracy to cheat; and if that be shown, it is not necessary to show any act done in consequence of it — Ed.]</p>

<p>The defendant was indicted at the Common Pleas in this county, December term, 1808, for unlawfully travelling, with a stage-carriage for passengers, through the town of Newburyport, on the twentieth day of November preceding, the same being Sabbath or Lord’s day, and the said travelling not being from necessity or charity, against the statute of 1791, c. 58.</p> <p>The cause came up to this Court by appeal from the Common Pleas ; and at this term the attorney-general and the defendant agreed on a state of facts for the opinion of the Court, and that if on those facts the indictment should not be maintained, a nolle prosequi should be entered, otherwise that the defendant should plead guilty.</p> <p>The facts are, that Josiah Paine had contracted with the postmaster-general of the United States, to carry, or cause to be carried, the public mail between Portland and Boston, on each day of the week, for the term of two years from the first day of October, 1808; that in pursuance of that contract, and according to the terms thereof, the defendant, as the servant of Paine, and-in his employment, travelled with, and drove the stage containing the mail, as charged in the indictment.</p>

<p>This was an action of trespass for an assault and battery committed on the plaintiff (who, being an infant, sues by his next friend) by the defendant, also an infant, who defends by his guardian appointed by the Court. It appears from the record that the original writ was purchased as well against James Dennis as the defendant ; but Dennis, not being served with process, was, at the plaintiff’s motion, with leave of the Court, struck out of the writ.</p> <p>The defendant pleads in bar, that the trespass charged was committed jointly by him and Dennis, and that pending the suit there had been an accord and satisfaction betw'een the plaintiff and Dennis, the latter having paid the former fifty dollars in full satisfaction.</p> <p>The plaintiff, protesting that he did not accept the said sum of fifty dollars in satisfaction of the trespass, replies that, at the time of the supposed satisfaction, he was an infant, of eighteen years of age, and no more.</p> <p>To this replication the defendant demurs generally, and the plaintiff joins in demurrer.</p> <p>* Dane, in support of the demurrer. It is a general- [*79] principle, that if an agreement be for the benefit of an infant at the time, it shall bind him. (1) It is averred here that the fifty dollars was a full and ample satisfaction, which the plaintiff has not denied, though he insists upon further damages. If fraud or imposition had been practised, it should have been shown by the plaintiff, and the accord would have been avoided. The writ was sued by the plaintiff’s next friend, and it is to be presumed that he was consenting to the settlement, which in such case would certainly bind; and by our law an infant above fourteen years of age may choose his own guardian. The privilege of an infant should never be made the engine of fraud, which will be the case, if, after having received a fair satisfaction for a personal wrong, he can still compel a second satisfaction for the same injury. A minor may sue, arrest, and imprison, one who has done him a personal injury ; and it seems to be an absurdity, that, with this power, he should not have authority to receive the compensation which he demands for the injury, and to discharge the wrong-doer.</p>

<p>Case for money had and received to the plaintiff’s use. The parties agreed to a statement of facts, from which it appears, that the money demanded was paid by the plaintiff to Tobias Lord, Jun., who received it for the defendant. The payment was endorsed upon a policy of insurance, made to the defendant alone, to insure for him 1000 dollars on the brigantine Mariner, and 500 dollars on her cargo, for a voyage and risk, in which it is admitted that [ * 83 ] * a total loss happened ; and that, at the time of the loss, the defendant was owner of one quarter of the said brigantine, the whole being valued at 5500 dollars, and of her cargo, the whole being valued at 2008 dollars and 33 cents.</p> <p>By subscriptions on this policy prior to the plaintiff’s, and by two other policies of a prior date, the defendant was insured in his own name, and upon the same property and risk, to the amount of 4600 dollars; and upon the happening of the total loss, he became entitled, upon those policies, and by the subscriptions prior to the plaintiff’s upon the policy in question, to the sum of 2920 dollars, after deducting the premiums.</p> <p>It is admitted, also, that all those policies, although made in the name of Nathaniel Lord only, were bona fide intended by him for the use and benefit of his partners as well as himself; that those partners had usually made their insurance by a policy in the name of one, with a view and intention that it should avail for the common benefit of the joint owners ; and "that only 2000 dollars had been insured in the name of Tobias Lord, Jun., one of the partners, and owner of three eighth parts of the vessel and cargo, by a policy prior in date to either of those effected by the defendant.</p> <p>All the policies are expressed as assurances to the party named alone, and in each of them there is a proviso against an over-insuronce ; by which, in that event, subscribers after the property at risk is wholly covered, are to be discharged.</p> <p>It is likewise agreed, that the plaintiff, upon proof of the loss, paid his subscription ; but that neither at that time, nor at the time of his subscription, had he any particular notice of the concern of the other part owners of the vessel and cargo.</p> <p>If, upon these facts, the Court should be of opinion that the plaintiff is entitled to recover back the said 200 dollars paid by him, or any part of that sum, then the defendant was to be defaulted, and the plaintiff’s damages assessed* by the Court; [ * 83 ] if otherwise, the plaintiff was to become nonsuit, and the defendant have judgment for his costs.</p>

<p>A discharge of the acceptor, by the payee of a bill of exchange, is not a discharge of the drawer, where the acceptor has no funds of the drawer in his hands.</p>

<p>This was a replevin of cattle. The defendants, as bailiffs of Abigail Trask, well acknowledge the taking and detaining them as damage feasant in the close of the said Trask.</p> <p>To this conusance the plaintiff pleads in bar, that he is seised of a close called Biscay Island, which is enclosed by a fence ; —. that to his said close are adjoining Trask’s close, the locus in quo, Riggs’s close, and also Low’s close ; — that Riggs’s close is also adjoining upon Trask’s close; — *and that Low’s [*91 ] close is adjoining to Riggs’s close ; —- that the partition fence, between the plaintiff’s close and the locus in quo, was and is undivided, and that he and Trask are jointly and equally bound by law to make and maintain the same ; — that the partition fence between the plaintiff’s and Low’s closes was and is also undivided, and that the plaintiff and Low are jointly and equally bound by law to make and maintain the same, but that the same partition fences are in all parts not legal nor sufficient; — that the plaintiff put the cattle into his own close to depasture, whence they escaped into Low’s close, through the insufficiency of the partition fence, thence into Riggs’s close, for want of any partition fence between those closes, and thence into the locus in quo, because there was no partition fence between Riggs’s close and the locus in quo.</p> <p>To this plea the defendants demur generally, and the plaintiff joins in demurrer.</p> <p>The cause was argued, at the last November term in this county, by Prescott and Andrews for the plaintiff, and Dane and Story for the defendants.</p> <p>Sketches of the relative Situation of the' several- Closes mentioned in the Plain-: tiff’s Bar:— _</p> <p>Rust’s Close, called Biscay island. Low. Riggs. Trask. Locus in quo.</p> <p>For the defendants, it was observed that the plaintiff having admitted the fact complained of, and having undertaken to justify, he was bound to show a clear title to every intent, and that he was himself entirely without fault. His justification is, that there was no fence between him and Low, and this was his own fault in the first instance; and that the fence was not kept up between entire strangers, who are bound only to fence against each other, even by iur own statutes, and at common law not bound at all.</p> <p>It is not alleged in the bar, that Trask was bound to make the lence between her and Riggs, and in excuse of a confessed trespass the Court will presume nothing.</p> <p>At common law, no man is bound to fence his close against his neighbor’s adjoining field; but every man is bound to keep his cattle within his own close at his peril; and an obligation to maintain a fence could only arise by covenant or prescription. (1) [ * 92 ] * Further, at common law, if a man be bound to make the fences of his close, this duty extends only as against the owner of the adjoining close, or some person having an interest therein, but not as against strangers; and therefore, if the cattle of a mere stranger escape into the close from defect of fence, trespass lies. (2)</p> <p>The common law on this subject is still in force in this commonwealth ; and the statutes of 1785, c. 52 and c. 53, have altered it only as between owners of adjoining closes, and, occupants under them,. Indeed, as to occupants, they were by the common law bound to enclose, wherever the owner was so bound.</p> <p>By the act of 1785, c. 52, occupants of adjoining closes, and none others, can compel the making of fences, and this only while the lands are improved. To the same purpose is the act of 1785, c. 53, respecting common fields, and the fences thereof, and the additional act of 1794, c. 38. By these statutes, it is a joint duty, to be enforced by either; but they may, as between themselves, dispense with a law made for their benefit. The first of these statutes repeals all other statutes on the subject.</p> <p>The statute of 1788, c. 65, § 3, which provides that every man, having his land legally fenced, may have trespass, or impound, &c., is merely affirmative, and affects the cases of lands legally fenced, and not the cases at common law, where lands are not fenced. There is nothing in this act which shows an intent to repeal the common law in other particulars; and manifestly its provisions apply only as between adjoining owners, and not strangers. For the construction of statutes, where they are in affirmance of the common law, see the authorities in the margin. (3)</p> <p>For the plaintiff, it was contended, that our statutes had virtually repealed the common law in this case; or rather that the English common law on this subject had never been adopted here. By our laws every man is bound to fence his close, not only against his neighbors, but against all the world. This law naturally arose out * of the situation in which our ancestors [ * 93 ] found themselves in this country on their emigration, and for a long time afterwards. For want of proper pasture land, it was absolutely necessary that the cattle should be permitted to go at large in the forests for subsistence ; and from the sparseness of the settlements, and the scarcity of inhabitants, it was impossible to watch them, so as to prevent their trespassing upon the unenclosed lands of others, the owners of which were therefore held to protect their enclosures by sufficient fences. Thus, as early as 1642, (4) it was ordained that no man should be liable to satisfy for damage done in any ground not sufficiently fenced, except for damage done by swine, calves, or unruly cattle, &c., and except also wilful and voluntary trespasses. And in 1662, it was enacted that, where any cattle should trespass on any propriety, not sufficiently fenced in the judgment of the fence-viewers, the owners of the fence, or of the land, should bear all such damages as were thereby sustained.</p> <p>From these ordinances of the colony there grew up a usage or common law of the country, which seems to be recognized by the provincial acts of 5 W. & M. c. 11, and 10 W. 3, c. 4. And by the statute of the commonwealth, 1788, c. 65, § 3, it is provided that any person injured in his mowing, tillage, or other lands under improvement, that are enclosed with a legal and sufficient fence, by swine, sheep, horses, or neat cattle, may have an action of trespass, &c., or he may impound the creatures, &c. The inference is irresistible, that if his lands are not so enclosed with a legal and sufficient fence, he must sustain the damage himself, and has no remedy against the owner of the cattle doing the damage.</p> <p>It appears in the case at bar, that the parties were jointly bound to maintain the fence between them. Of course one of the parties had no right to impound the cattle of the other, if the fence was insufficient. It is not, then, for the defendants now to say [ * 94 ] that there was not a sufficient fence between * the plaintiff’s land and that of Trash. It will be also admitted that Riggs could not have impounded the plaintiff’s cattle for escaping from Low’s into his land, because the fence between those closes was also insufficient, and the owners were jointly bound to maintain it. The plaintiff’s cattle were, then, lawfully in Riggs’s close; and Trash was bound to fence against any cattle, which were lawfully in the adjoining close. (5)</p> <p>If the law were not so to be considered, much difficulty and inconvenience would arise in the community. It would be making a distinction, equally idle and troublesome, between the cattle of the owner of the land, and the cattle of others, which the owner of the land had suffered to be in his close.</p>

<p>In a policy of insurance, restraints and detainments of princes have the same meaning.</p> <p>Information by a belligerent to a neutral vessel, that her port of destination is blockaded, and a warning not to proceed thither, do not amount to a restraint or detention.</p> <p>As between the parties to a policy of insurance, it is immaterial whether a blockade is, or is not, authorized by the law of nations.</p> <p>An insurance by subjects, or. a voyage prohibited by their sovereign, is void , but not on a voyage prohibited by the trade laws of a foreign state, nor on goods contraband of war against capture and condemnation on that account, if, in either case, the facts are known to the underwriter, and the risks are not excepted in the policy; and in either of the two latter cases, if the policy is void as to those particular risks, it is still good against other risks within it.</p> <p>Neutral goods bound to a blockaded port are to be considered as contraband of war.</p> <p>A discontinuance of a voyage, and a return of the ship to her port of departure, through fear of capture, furnish no cause of abandonment, or claim for a tota loss, whether such capture be, or be not, insured against</p>

<p>Assumpsit upon a policy of insurance on a brigantine and cargo, at and from Salem to St. Andero, in Spain, in which the plaintiff was interested to the amount of the sum insured; and he demanded for a total loss.</p> <p>The cause came before the Court on a case stated by the parties, from which it appears that the brigantine sailed on the voyage insured ; that on the 27th of December, 1807, she was boarded by an officer from the British armed ship of war Union, and by an endorsement on the brigantine’s register by the commander of the armed ship, the master was warned not to enter any port of France or her allies, of which Spain was one, but to proceed to Great Britain, Gibraltar, or Malta, pursuant to the British orders of council of the 11th of November, 1807, whereupon the master of the brig an tine discontinued his voyage to St. Andero, and proceeded to Gibraltar, where she arrived in safety.</p> <p>The remaining history of the voyage, as contained in the case stated, having, in the opinion of the Court, no legal bearing on the cause, a recital of it is unnecessary.</p> <p>The plaintiff offered to abandon to the defendants, who refused to accept the same.</p> <p>* The cause was submitted without argument, as the [ * 123 ] points arising out of the facts were similar to those in the preceding action of Richardson & Al. vs. The Maine Fire and Marine Insurance Company, which was fully argued at the last March term, in Suffolk.</p>

<p>This case contains the same principles as the preceding one.</p>

<p>Upon the trial of this action of assumpsit, upon the general issue pleaded, before Sewall, J., a verdict was taken for the defendant, subject to the opinion of the Court, on the following facts: —</p> <p>“ The defendant, being master of the ship Hope, on her voyage from Salem to Calcutta, in the years 1806 and 1807, received on board said ship a keg -containing 1000 dollars, the property of the plaintiff, to carry to Calcutta aforesaid, on the proper account and risk of the plaintiff, and there to lay out the same to the best advantage in piece goods, and bring home the same in said ship ; the defendant to receive, for his freight, commissions, and all services, one third part of the net proceeds that he should gain on the said dollars.”</p> <p>When the ship arrived, in the course of her voyage, in Ballasore Roads, at the head of the Bay of Bengal, a master pilot took charge of her, to pilot her up the River Hoogly to the town of Calcutta; and while she was proceeding under the orders of the said pilot, she struck the ground, and beat hard against the bottom. It being every moment expected that she would bilge, it was thought to be necessary immediately to abandon her. The boats were accordingly hoisted out as quickly as possible, and some provisions and clothing, with seven kegs and two small bags of dollars, being the first that came to hand, were put into the long-boat. The defendant, with his crew, then immediately abandoned the ship, and made for the shore, leaving the ship, with her sails up. In their way to the shore, * the sea ran so high as to en- [ * 126 ] danger the boat’s foundering; and one sea having partly filled the long-boat, it became necessary, for the preservation of the lives of all on board of the boat, to throw the heavy articles overboard ; among which were some parcels of baggage, and six of the kegs of dollars, one of which was the keg first mentioned, belonging to the plaintiff. The remaining keg, with the said two small bags, were saved. One of the said bags belonged to the defendant, and the other bag, and the keg, belonged to the other officers of the ship, and were under their care and custody on board of the boat.</p> <p>On the next day after they reached the shore, they discovered the ship drifted along shore, about ten miles distant from them, and went on board, and moored her in a creek. The remaining cargo of said ship, consisting of dollars, was then taken out, and put on board the boats, in which the defendant and his crew proceeded towards Calcutta. While on their way, they met with a brig bound to that place, on board which they put the dollars, and went up in her to Calcutta. Afterwards the defendant, with assistance from Calcutta, went down to the ship, to pump her out, and to put her in the best possible state to prepare to get her into deep water. For that purpose every exertion was used for four days, when she was got out of the said creek, and proceeded under the orders of the pilot to Calcutta.</p> <p>Every exertion in the power of the defendant, pilot, and crew, was used, to avoid and prevent the several accidents and misfortunes which happened to the said ship, treasure, and cargo.</p> <p>And upon the facts aforesaid, the parties submit to the opinion of the Court, whether the defendant is liable, in this action, for any average or contribution, either upon the whole property concerned in the voyage, or upon the property in the boat, from which the keg of money carried for the plaintiff was thrown. And if the Court should be of opinion, that the defendant is so [ * 127 ] liable for an average, he is * to exhibit an account of the property, either in the ship or the boat, upon which such contribution is to be assessed by the Court, and the verdict is to be set aside, and judgment entered for the plaintiff, for the sum so assessed ; but if otherwise, judgment is to be entered for the defendant, according to the verdict.</p> <p>The cause was argued upon these facts by Prescott and Putnam for the plaintiff, and Story and Pickering for the defendant.</p> <p>For the plaintiff, the general principles of contribution were relied upon. The treasure thrown from the boat was voluntarily lost for the preservation of the remaining treasure, and the lives of those in the boat; and the plaintiff is thus entitled to an average, at least from the boat and such of its contents as were saved. But, further, the lives were necessary to the recovery and preservation of the ship, and the property which remained on board her. What was put into the boat was part of the cargo, and the putting it on board, and proceeding with it to the shore, was a pursuing of the voyage, or like putting the cargo on board a new vessel, which would be a new voyage. In this view, the plaintiff holds himself entitled to a salvage from the part of the property saved by the men, whose lives the loss of this adventure, in fact, aided in preserving.</p> <p>Whatever is thrown overboard, and is thus the means of saving the remainder, whether so intended or not, shall be contributed to-by the property saved. In order to save the property left in the boat, the plaintiff’s dollars were thrown over ; and the transaction is not distinguishable from any common case of a jettison.</p> <p>For the defendant, it was argued that here was a complete shipwreck, in which case no contribution is due from goods saved The ship and property on board were wholly abandoned, and at the time of this transaction despaired of. The goods laden on board the boat were not put on board with any view to the preservation of the ship, or of the cargo left on board, nor did they contribute to that object. * The plaintiff’s keg of [*128] dollars, with the other baggage thrown from the boat, were thrown over for the preservation of the lives of the people in the boat, which gives no claim to contribution. (1)</p>

<p>In a writ of entry sur disseisin, the demandant declared on his own seisin, and on a disseisin by the tenant. The tenant claimed under a levy of an execution extended upon the demandant’s land, issued upon a judgment recovered against him by one Edmund Sawyer.</p> <p>On the trial, which was had before Sewall, J.“, at the sittings here after the last November term, upon the general issue, the only question in dispute was, whether the land, which the tenant claimed to hold, was included within the bounds of the land, on which the execution was extended. Upon the evidence, the judge was of opinion with the tenant, and so directed the jury ; but they found a verdict for the demandant. The tenant thereupon moved for a new trial, because the verdict was against evidence.</p> <p>[ * 132 ] *From the report of the judge, it appears that the land on which the execution of Sawyer was extended, was bounded south-westwardly by Drury Lane, thirty-five feet; northeastwardly by the land of Sanborn and Collins, ninety-nine feet; north-westwardly by other land of the demandant, about thirty-five feet, by a line parallel to Drury Lane; and south-westwardly by land of Fletcher, ninety-nine feet; and this parcel is said to contain thirteen rods.</p> <p>From a plan which had been taken under an order of the Court, the line on Drury Lane, extending from the land of Sanborn and Collins to the land of Fletcher, appears to be thirty-five feet three inches and a half; and by the same plan, the line on the demand-ant’s other land appears to be forty-two feet nine and a half inches: and this last extent of line is preserved for twenty-eight feet six inches from the said other land of the demandant towards Drury Lane, where the length of the line is thirty-seven feet three and a half inches.</p> <p>The demandant insisted that, as there was an over-measure oi three and a half inches on one side, he ought to recover on that side a strip of that width the whole length of the parcel extended upon ; and as, on the other side, there was an over-measure of five feet six inches, extending twenty-eight feet „six inches, in the form of a parallelogram, he ought also to recover that parallelogram. But it was agreed that Drury Lane, the land of Sanborn and Collins on one side, and the land of Fletcher on the other side, are all fixed, known monuments, about which there was no dispute; and that there was no question between the parties as to the other land of the demandant’s parallel to Drury Lane. The demandant relied not only on the admeasurement, but also on the contents, which give the tenant thirteen rods and two fifths, instead of thirteen rods, the contents stated in the extent of Sawyer’s execution.</p>

<p>Assumpsit for work and labor done b} the plaintiff for the defendants, from March 26th to December 9th, 1807, at an agreed price. M’ Convitte was defaulted, and the other defendants pleaded the general issue, which was tried, at the last November term in ibis county, before the chief justice. On the trial, a verdict was found for the plaintiff, for 119 dollars 88 cents, by consent of the parties, subject to the opinion of the Court upon a case stated.</p> <p>From the facts in the case, it appears that the plaintiff [ * 144 ] did the labor for the defendants, for which the action * is brought; that the defendants had constituted M’Con-mile their receiver and paymaster; that on the 22d of October, 1807, the plaintiff and M’ Conville made a settlement for the labor then performed, and after deducting the advances made to the plaintiff, there was found due to him 108 dollars 33 cents, for which sum M’ Conville then gave the plaintiff his, the said M’ Conville’s, promissory note payable to the plaintiff or his order with interest, which the plaintiff, during the trial of this cause at the court below filed in the case; that the plaintiff continued to labor for the defendants until December 9th, when M’ Conville gave him a certificate, that there was due from the defendants to him the sum of 119 dollars 88 cents, which sum M’ Conville, in behalf of the defendants, promised that they should pay him on demand with interest; that this last-mentioned sum included the sum for which the note was given ; that none of the defendants, except M’’ Conville, were present at or privy to the adjustment, signing the note, or giving the certificate ; that afterwards, in the same December, the defendants were all together, making an account of the bills .against them ; that the plaintiff’s bill was included in the said account; that it was the understanding of all the defendants, that each one was liable to the payment of one fourth part of the said account; but that the plaintiff was not present, nor privy to this transaction.</p> <p>If, on these facts, the defendants were liable in law to pay to the plaintiff the sum for which the said promissory note was given, it was agreed that the verdict should stand ; but if the defendants, except M’Conville, were discharged from paying that sum, by the plaintiff’s receiving said note from ISP Conville, then the verdict was to be amended, by deducting from the sum therein found the sum for which the note was given, and judgment in either case to be rendered accordingly.</p> <p>At the adjournment in July last, Paine, for the defendants, contended that the promissory note given by M’ Conville [ * 145 ] * in October, was payment of the precedent debt, because, 1. The plaintiff so received and considered it. 2. If the plaintiff did not at the time so receive and consider it, yet it m ist be now so applied, because he has used no diligence to collect it from the maker. (1)</p> <p>If M’Conville had a legal authority to give the note, so as to bind the other defendants, the plaintiff may still endorse the note to a third person, or may recover it himself against them; if he had no such authority, he must be considered as a stranger, and the plaintiff, accepting his note in payment, is bound.</p>

<p>This was a libel for a divorce a vinculo, brought by the husband against the wife, for her adultery.</p> <p>The chief justice pronounced the decree in the case, and having stated the evidence, and the opinion of the Court resulting therefrom, that the crime charged in the libel was sufficiently proved, he proceeded —</p> <p>But if this crime in the wife, against her husband, has been remitted by him, he shall not afterwards, for this cause, obtain a dissolution of the marriage. For an offence, forgiven by the injured party, cannot afterwards be the foundation of a prosecution for his own benefit. And when the wife has committed adultery, and the husband has knowledge of her guilt, if afterwards he will cohabit with her as his wife, he exhibits conclusive evidence of his forgiveness.</p>

<p>Upon the application of executors, &c., for license to sell the real estate of the testator, &c., for the payment of debts, the Court may direct the sale of any specific part of the estate.</p> <p>Where the testator ordered his debts to be paid, made a specific devise of certain lands to his sister, and devised all the residue, of which he should die seised, to a residuary devisee, and he died seised of lands purchased after the making of the will, which, of consequence, did not pass thereby, and the executors applied for license to sell real estate for the payment of debts, the Court directed them first to sell the devised lands not included in the specific devise, and next the lands which descended to the heirs.</p>

<p>This was an action of assumpsit on a bill of exchange drawn at Manchester, in England, July 6th, 1807, by the plaintiff upon the defendants, for 487l. 18s. sterling, payable to the plaintiff or his order in six months, and accepted on the same day, by the defend ánts, to pay in London, and afterwards duly protested, for non-payment, of which due notice was given to the defendants, and a demand made on them for payment.</p> <p>On the trial of the cause, before Parker, J., at the last November term, on the general issue, a verdict for 2488 dollars 17 cents was found for the plaintiff, by the consent of the parties, subject to the opinion of the Court on the following case:</p> <p>“ The plaintiff is entitled to recover on the bill; and the only question is, what damages ought to be assessed for him.</p> <p>The plaintiff is a merchant of Manchester, in * England. [ * 158 ] The defendants are merchants of Boston, in this state, one of them being in Manchester when the bill was accepted. The charges of protesting the bill were 2 dollars 48 cents. The legal rate of interest in England is five per cent. When the bill was returned, with a demand of payment from the defendants, re-exchange between Boston and London was five and a quarter per cent.; but it was ten per cent, when the verdict was found. In assessing the damages, the jury allowed six per cent, on the sum for which the bill was drawn, and the charges of protest, from the time the bill was payable, to the time of finding the verdict, and also one tenth of that sum for damages ; the said sum, charges, interest, and damages, amounting to the sum of 2261 dollars 97 cents, and to this sum ten per cent, of it was added for re-exchange, making, in the whole, the sum of 2488 dollars 17 cents, for which the verdict was found.” And it was agreed, if the damages were assessed upon just and legal principles, the verdict should stand : but if not, the damages should be assessed by the Court upon such principles, and the verdict be made conformable thereto, and judgment rendered accordingly.</p> <p>The cause was argued at the July adjournment of the last term in this county, by Dutton for the plaintiff, and Sullivan for the defendants.</p> <p>The next case, of Barclay & Al. vs. Minchin & Al., containing the same points, was argued on the same day by Jackson for the plaintiffs, and Amory for the defendants. For greater convenience, the arguments in the two cases will be here recited and blended.</p> <p>For the defendants, it was contended that this was a mere inland bill, and so not entitled to damages, or re-exchange. It was a promise of the defendants, then in England, to pay to the plaintiff a sum of money at a given day in London. The contract being made in England, and the performance of it contemplated to be in the same country, the laws of that country must govern in [ * 159 ] the construction. * But in England, all that the plaintiff could recover upon this bill would be the amount for which it was drawn, the charges of protest, and interest at five per cent. This, and this only, ought to have been the measure of damages in the case at bar. The inquiry is, What is the value of a dollar in sterling money ? So many dollars as the bill amounts to, say 4s. Qd. sterling for one dollar, with interest at five per cent., and the charges of protest, he is entitled to. The defendants have nothing to do with re-exchange,— which is due when a bill is sold circuitously, and a new bill is drawn,— nor with the inquiry whither the plaintiff proposes to carry his money when received. Such, at least, has always been the construction given by merchants to contracts of this kind. If it is a mistaken one, it is time that mercantile people were better informed. (1)</p> <p>For the plaintiff, it was argued, that this was in fact a bill drawn by an American house, payable in London, to an English merchant; it was dishonored, and the plaintiff has thence a right to be indemnified, or made whole; and this only can be done by furnishing him with the means of placing the same sum at his control in the same place, with interest on that sum, and the charges' he has been at: (2) in other words, the plaintiff is entitled to recover the sum for which the bill was drawn, the charges of protest, interest at six per cent., from the protest of the bill, ten per cent., the damages fixed by the custom of this state, and the re-exchange at the time of the verdict, which the case finds was ten per cent.</p>

<p>The facts in this case, and the decision upon them, were similar to those m the next preceding case.</p>

<p>This was an action of assumpsit for sundry supplies furnished by the plaintiff for the sloop Betsy Ann, Andrew Coleman, master, alleged by the plaintiff to be the property of the defendants. The parties, by a rule of this Court, agreed that certain arbitrators named should ascertain and report the facts in the case, upon which, if the Court should be of opinion that, the plaintiff was entitled to recover in the action, judgment should be rendered for him accordingly ; otherwise he was to become nonsuit.</p> <p>The facts reported by the arbitrators were, that the sloop sailed from Edgarton, in Dukes county, on or about the 13th of June, 1805, for the Falkland Islands, on a whaling, fishing, and skinning voyage, being at that time owned by the defendants, and registered in their names; that on the 17th of September following, they sold one fourtl) of said sloop to one J. Jenkins, and another fourtli to one William Kelly; and on the third of December following, the remaining half to B. F. Bourne and Benjamin Rich, for the use and benefit of their (the defendants’) creditors; that in the months of December, 1807, and January and February, 1808, the said sloop being then in Rio Negro, in South America, the plaintiff, at the request of the master, furnished her with necessaries to fit her for sea, and enabled her to proceed on her voyage and return home, to an amount stated ; that it did not appear that either the plaintiff or the master knew of the sale aforesaid, at the time [" * 164 ] the * said supplies were furnished ; that the sloop arrived at Boston, on her return from said voyage, on the 10th of April, 1808, when no measures were taken by Jenkins, Kelley, Bourne, or Rich, to obtain possession of her; that on the 23d of the same April she was attached in this suit; and that on the 4th of May following, she was arrested by the marshal of the district, by virtue of a warrant from the District Court, issued on a libel filed against her for the wages of her crew, and was afterwards sold under a decree of the said court, for the payment of the said wages.</p>

<p>An auctioneer, selling goods by orders from a sheriff, and receiving the money for them, is accountable only to the sheriff, and cannot be held as the trustee of those who may have claims on the sheriff for the proceeds.</p>

<p>A devise to the testator’s wife of an annuity, “ during her widowhood and life,” was held to cease upon her second marriage, by the testator’s intention; but it was further held, that such intention being in terrorem, and against the policy of the law, as in restraint of marriage, it could not take effect, and that the wife was entitled to the annuity during her life, notwithstanding her second marriage, the same not being expressly devised over, except to the residuary legatee, who was the heir at law to the testator.</p>

<p>Error on a judgment of the Common Pleas for this county, rendered in an action wherein the defendant in error was original plaintiff, and the plaintiff in error original defendant.</p> <p>The original action was indebitatus assumpsit for five dollars, money had and received by the defendant for the plaintiff’s use, and was commenced before William Wetmore, Esquire, a justice of the peace for this county, and also chief justice of the said Court of Common Pleas, by whom, the general issue being pleaded, judgment was given for the plaintiff, from which the defendant appealed to the Common Pleas.</p> <p>Upon the trial in that Court, it appeared that Adams, the plaintiff, possessing the promissory note of Young, the defendant, for 252 dollars, payable to the plaintiff in foreign bills, received in payment a number of bank bills to the amount of the note, which were counted and accepted ; whereupon the note was given [ * 133 ] up as paid. These bills being * the next day carried to a public bank, where they were to be deposited or paid, and being there more strictly examined, a five dollar bill amongst them was discovered to be a counterfeit. This was sent on the next day to the defendant, and he was required to give a true bill in lieu of the counterfeit," which he refused to do, or to make any compensation for it; and this action was brought to recover the sum thus eventually deficient to the payment of the note.</p> <p>The court below instructed the jury that the plaintiff had maintained his action, and directed them to find a verdict for him. The defendant filed his bill of exceptions to the said directions, and brought his writ of error to reverse the judgment rendered by that court upon the verdict returned for the plaintiff.</p> <p>The errors assigned were, in substance, 1. That the evidence produced did not support the declaration, it appearing, in the transaction upon which the suit was founded, that no sum or sums of money had actually been received by the said Young of the plaintiff to the plaintiff’s use.</p> <p>2. That the bank bill, stated to have been passed by said Young to said Adams, was duly accepted by said Adams in payment; and no deceit, fraud, or artful practice, appeared, or was suggested to have been used by said Young in the passing of the said bill; and no contract or agreement was alleged or proved, whereby said Young agreed to be holden to suffer the loss of the bill aforesaid. Whereupon the court below ought to have instructed the jury that he was not liable in the said action.</p> <p>3. That the said action was originally brought before W. Wet-more, Esquire, a justice of the peace for the said county, and by him tried, and judgment thereon rendered; and the said W. W. is chief justice of the said Court of Common Pleas, and did sit and act as such on the trial of the appeal at the said court from the judgmen by him rendered as a justice of the peace</p> <p>4. The general error.</p> <p>The defendant in error pleaded in nidio est erratum.</p>

<p>To an action by an endorsee against the maker of a promissory note, the defendant avers that the note was made and endorsed in blank, and given to one L, T., to secure a sum of money borrowed of him by the defendant; and that L. T. has not assigned his interest, but is the real creditor in the action; and this he is ready to verify, &c. — He then proceeds with a regular plea of usury taken by L. T. on the note, and upon the loan to the defendant, and tenders his oath in proof thereof, when, &c. — Upon demurrer, the plaintiff had judgment.</p>

<p>Where an insurance broker had adjusted a loss with the agent of a party in whose name the insurance was effected, and had charged the several underwriters with their respective proportions of the loss, and credited the party in whose name the insurance was effected, with the amount of the loss, by setting it off against his premium notes, pursuant to an agreement in the policy, the underwriters were held to be discharged from the demand of the real party in interest, although the policy was effected in the name of “ N. £., and whoevei else it might concern.”</p>

<p>Case upon a policy of insurance, which is in the usual form, insuring for the plaintiff “ 5000 dollars, in specie or merchandise out, and merchandise home, on board the brig Success, at and from Boston, to port or ports in the Islands of Sumatra and Java, for the purpose of disposing of the outward, and procuring a return cargo, and at and from thence to her port of discharge in the United States, with liberty to touch at the usual places of refreshment, on the outward and homeward passages, and to trade thereat.”</p> <p>The cause came before the Court on a case stated, in which the parties agree to the following facts: —</p> <p>The defendants made the policy declared on, and the plaintiff was interested in the cargo, to a greater amount than the sum insured thereon by him.</p> <p>The vessel arrived, with her cargo on board, at Labouaga, in the Island of Sumatra, on the 5th of June, 1805, when John Hilliard, the master, went on shore, three days successively, to ascertain the price of pepper; and finding the state of the market unfavorable, he determined to proceed to another port in [* 198] said island. When he was weighing * anchor for this purpose, the chief magistrate or sovereign of the countries, called Dato Bassow, sent off certain messengers, and offered to furnish him with a cargo of pepper upon terms which were satisfactory ; and he accordingly, the next day, proceeded to take on board his return cargo. He continued lading, according to the usual course of business in that place, until the 24th of said June, when he agreed to sell to the said Dato a chest of opium, being the property of the plaintiff, and part of the cargo, at an agreed price, and to receive one half the price thereof in dollars, and the other half in pepper, which he supposed would complete the lading of the vessel. The said Dato accordingly ordered his subjects to deliver the said pepper, which Captain H. continued to take in until the evening of that day. Early in the morning of the next day, the said Dato came on board the vessel, to ascertain how much more pepper she could take in. He appeared to be very friendly, and after tarrying about half an hour, and examining the vessel, he went on shore. The captain went with him, and sent off the last boat-load of pepper that the ship could take in, which, with one third before received on account of the opium, made about two thirds of the value of the opium. The Dato then desired to have the opium brought on shore, and said he would pay the balance in dollars, as he had agreed. It was brought on shore, and the Dato ordered his men to take it to the scales, and see if it held out in weight; and while they were placing it in the scales, the Dato told Captain H. that he must let him have it at a price which he named, and which was less by one fifth than the price before agreed on. Captain H. immediately replied, that unless the Dato would comply with the agreement, he would pay him in dollars for the pepper received on account of the opium, which he would take on board again. To this he apparently assented; and Captain H. sent for his long-boat and four hands to take the opium on board the ship. The water being shoal for some distance, the people waded up*to their knees in the water about four or [*199] five rods, with the opium, and had rested it on the gunwale of the boat, and were part of them getting into the boat to stow it, when the Dato ordered his subjects to bring it on shore again. About two hundred of the natives accordingly ran to the boat, and brought back the opium with loud shouts. On inquiring of the Dato the meaning of this extraordinary conduct, he told the captain, that when he had paid for said pepper, and had received back a chest of muskets, which he had previously sold him, and returned the price paid for them, he might go on board his vessel, with the opium and muskets. Captain H. sent on board for his money, and paid 212 dollars 50 cents, which he had received foi the muskets, and 1785 dollars, which was the price of the pepper, and desired that some of the natives should assist him in getting the muskets and opium into the boat. The Dato then replied, that those goods should not be carried on board until the money received for one half of the opium, which he said he had paid the day before, was returned. On the captain’s asking him the meaning of such conduct, the Dato replied, that he had paid him in dollars for half the opium the day before, and that it should not be carried on board until that sum was returned. This assertion was wholly untrue, and the captain became alarmed, and inquired of the interpreter, who had always been friendly to him, if the Dato intended to rob him. The interpreter replied, in a low voice, that he did The captain said, that he might as well take his life as the opium, and that he must take it on board that night. The interpreter replied, “ You will do well to get away alive yourself, and, as a friend, I advise you not to hesitate a moment.” As it was then evening, and Captain H. knew that the Dato had no superior, to whom he could apply for relief or protection, he determined to get on board with his boat’s crew as soon as possible; and ne had scarcely got clear of the shore, when an attempt was made by the natives to stop him, but without success. On the * said 25th day of June, there were nearly 2000 of [*200j the natives on the shore, and rather more the next day, a larger portion than usual of whom were armed. Before that time, there had never been above 200 together. During the whole night of the 25th, the crew were expecting to be attacked by the natives, and made every preparation to defend themselves. In the morning, a prow, or small vessel, belonging to a neighboring port, came off from the shore, the master of which advised Captain H. not to go on shore, telling him that the natives had carried the opium, back into the country, that they were making preparations to capture the vessel, and were arming every prow in the harbor for that purpose. This information corresponding with what had already occurred, and with the hostile appearances on shore, which were seen from the vessel, Captain II. determined, for the preservation of the lives of the crew, and the residue of the property, to put to sea immediately. As soon as this was seen from the shore, the natives began to fire at the vessel from the fort, but did not prevent her departure. The usual mode of conducting business at said Labouaga is to contract with the Dato, or king, in whose name all contracts are made. His subjects furnish the articles contracted for to an officer, who delivers them to the purchaser, and in return receives the money, or other articles given in exchange, and distributes them among the natives. Captain Hilliard, conducted his sales and purchases, and his mercantile transactions, in all respects, according to the usage of said place. The value of the opium and other arti cles lost was, at the time of the shipment, 3100 dollars; and the sum due from the defendants, if they are liable for the whole of said loss, is 2558 dollars 57 cents, with interest from, &c.</p> <p>If, upon the foregoing statement, the Court should be of opinion that the plaintiff is entitled to recover for said loss, the defendants agree to be defaulted, and that judgment be rendered [*201 ] against them for such sum as the Court * shall award, with costs; otherwise the plaintiff agrees to become nonsuit, and that judgment for costs be rendered against him.</p> <p>The cause was argued upon these facts, at the last March term, by Otis and Jackson for the plaintiff, and Deader and Hall for the defendants.</p> <p>For the plaintiff, it was insisted that the seizure of the opium by assailing thieves, while lading on board the ship’s boat, was a loss protected by the policy. It was never safely landed, and though this is not an expression in the policy, yet words full as com prehen sive are used. The insurance was on merchandise on board the ship at and from Boston, &c., and at and from Sumatra and Java, for the purpose of disposing of the outward, and of procuring a return cargo. The property was then covered by the policy so long as it might be considered as on board the ship, (and for this purpose the boat is a part of the ship,) and until disposed of for the avowed purpose of the voyage, or until it was landed in safety according to the course of the voyage.</p> <p>But if it were safely landed, yet being afterwards seized by violence, while lading on board the boat, and had thus become part of the return cargo, still the insurance will protect it.</p> <p>The money demanded and taken by this JDato Bassow, or sovereign prince of the country, was property lost by the “ restraint and detainment of kings, princes,” &.c., and so expressly within the words of the policy. (1)</p> <p>For the defendants, it was insisted, that the insurance was limited to merchandise on board the ship. Here the article was landed in pursuance of a previous bargain, which had changed the property, and two thirds of the consideration had been actually received. This opium had become the property of the Dato Bassow, who in this case is to be considered solely as a merchant; and thus the defendants were discharged as much as if it had been landed. (2)</p> <p>" * The case of Martin vs. The Salem Marine Insurance [ * 202 ] Company (3) shows that goods insured must retain their connection with the vessel, to be within the contract of insurance. But this opium had been taken on shore, and put into the merchant’s scales to be weighed, when he fraudulently fell from his bargain, and with violence seized it, refusing to pay a balance still due for it. This was merely a fraud in this merchant, against which underwriters never insure. The pepper, which had been delivered in payment for the opium, and was on. board the ship, was at the risk of the underwriters as return cargo; but they could not be held for the outward and return cargoes at the same moment.</p> <p>As to the money, for which the plaintiff demands an indemnity, it was not taken by force, but voluntarily carried on shore, after the D to Bassow had unmasked himself. The master might certainly have refused to surrender it, and have brought it away with him.</p>

Case upon a policy of insurance, Nov. 3d, 1807, by which the defendants insure for the plaintiffs 10,000 dollars on merchandise on board the ship Meridian.

<p>This action was case upon a policy of insurance, subscribed by the defendants for the plaintiffs, May 7th, 1807, for 1800 dollars, on the freight of the ship Fortune, from Leghorn to Smyrna, with cotton, and at and from thence back to Leghorn; and a total loss by capture was claimed.</p> <p>On the trial upon the general issue, before the chief justice, November term, 1808, a verdict was found for the [*221 ] * plaintiff, by the consent of the parties, subject to the opinion of the Court on the following case : —</p> <p>“ The plaintiff is entitled to recover, unless the defence set up by the defendants should be a legal bar to his claim. The defence rested on two grounds — a concealment of material facts from the defendants, and the sailing of the ship with false papers when she was captured.”</p> <p>“ To support these points, it was proved, or admitted, that the plaintiff, and two other merchants of Newburyport, were the sole owners of the ship, and that they sent her into the Mediterranean, to be there employed under the directions of John Harrod, the supercargo ; that in February, 1807, at Leghorn, Harrod, having the authority aforesaid, agreed with Messrs. Franchetti, subjects of the emperor of France, then one of the powers at war, to transport for them in the said ship, from Leghorn to Smyrna, a cargo of coffee and cochineal, the same to be covered as Harrod’s sole property, by papers to be made out in his name, and also to transport back from Smyrna to Leghorn a cargo of cotton, their property, for a stipulated freight; that in March, 1807, the ship sailed from Leghorn to Smyrna pursuant to this agreement, the cargo being covered as aforesaid ; that the ship arrived and delivered her cargo at Smyrna, and for her return voyage took on board a cargo of cotton on freight, the property of the said Messrs. Franchetti; but the bill of lading on board falsely purported the cotton to belong to the owners of the ship, and that no freight was to be paid for it; that the ship sailed from Smyrna, with this cargo of cotton and false bill of lading on board, the true bill of lading being sent on by tne mail, on her return voyage, and on that voyage was captured, by a British armed ship, and sent into Malta, where the cargo, after time allowed for further proof, was condemned, and the ship was acquitted ; but the prize court refused to decree freight to the owners, because the bill of lading expressed the cargo to be the owners’ property, and that no freight was to be paid; that no information * was given to the defendants, either be- [ * 222 ] fore or at the time of effecting the policy, of the agreement of Harrod to carry on freight the property of the said Franchetti, subjects of one of the belligerent powers, or to coyer the same, from Leghorn to Smyrna, by false papers, as the property of the supercargo, or that the property of the cotton back from Smyrna was, or was not, intended to be covered by a false bill of lading, as aforesaid, on which no freight was to be paid, the same being owners’ property ; but thereof the defendants were wholly ignorant.”</p> <p>“ Now if, on these facts, the plaintiff ought to recover, the verdict is to stand ; otherwise it is to be set aside, and a general verdict for the defendants is to be entered, and judgment is to be entered accordingly.”</p> <p>The cause was argued, at the last July adjournment in this county, by Channing for the plaintiff, and Jackson for the defendants.</p> <p>Channing argued, 1. that the taking of the goods of a belligerent on freight, or the chartering of a ship to a belligerent, was not, in any view, illegal, or a breach of the neutral character of the ship; nor was it a circumstance of the kind or nature to require a representation of it to underwriters on a proposal for insurance. R might have come out on the inquiries of the underwriters, if they had seen fit to make such. (1)</p> <p>2. There was no warranty in this case, express or implied, nor any representation as to the neutrality of the ship or cargo; and in such case there is no obligation on the insured respecting the documents relating to either. (2) The opinion of Lawrence, J., in the case cited, is quoted with approbation in the case of Seaton Al. vs. Low; (3) and the same doctrine was afterwards adopted by Lord Ellenborough, in the case of Dawson & Al. vs. Atty. (4)</p> <p>3. The defendants have suffered nothing from the particular mode of employing the ship in this case. That the ship was acquitted is sufficient proof that the cargo was not condemned [ * 223 ] as enemy’s property covered by a neutral. * The British prize courts, always condemn the ship itself in such cases. (5) The cargo was detained, in this case, for further proof, and was afterwards condemned of course, such proof not being furnished within the limited time.</p> <p>4. The owners of the ship, having a legal right to charter her to a French citizen, and having done this, had no further control of her, or of those to whom she was hired, until the voyage was performed, and of course are not to suffer for their misconduct, if they were not guilty of any themselves.</p> <p>Jackson insisted that the case clearly shows a want of good faith in the assured, a criminal concealment of facts essentially affecting the risk. The defendants were never informed that Frenchmen were owners of the cargo, or that the bill of lading was a false one. These were important facts, for they were the very cause of the condemnation, by which the loss was incurred. There can be no need of producing authorities, to show that voyages are to be conducted in the usual course of the trade, with the common and requisite documents, and that, when this is not the case, the assured is bound to communicate it to the underwriter.</p> <p>The case of Talcot vs. M. I. Company turned wholly on the question whether the voyage had ever been commenced. The other authorities from the New York reports are not warranted by any cases or writers on marine insurance. Marshall says that, “ if the nature of the service, in which the ship is to be employed, be attended with any extraordinary danger, the concealment of it will avoid the policy.” (6)</p> <p>And he cites from Emerigon the report of a decision of the parliament of Aix precisely in support of the position he had laid down. As to the observation that the defendants suffer nothing from the particular circumstances of the voyage, — if they are held to pay this loss, so far is it from the truth, that the loss will be entirely chargeable to the plaintiff in the criminal prosecu [ * 224 ] tian of his voyage. * This misconduct was the immediate act of the plaintiff’s own agent; and, indeed, if it had been the act of those who hired the ship, the plaintiff would be equally accountable, since they must be considered as the substitutes of the owners for the voyage.</p>

This was an action of entry sur disseisin, to recover possession of the land described in the writ, of which the demandants allege that they were seised within thirty years, and have been disseised by the tenant.

<p>An insurance is made upon merchandise from Boston to Rio Janeiro. On the voyage, the ship puts into a port in Portuguese America for supplies, where she is arrested, and, with her cargo, detained by the Portuguese government, because it appeared she was bound to a port where, by law, Americans were not permitted to trade. The assured abandoned to the underwriters, and recovered for a total loss.</p>

<p>After an assignment of an estate, mortgaged by the mortgagee, the action to foreclose the mortgage must be brought in the name of the assignee.</p>

<p>This was an action of the case against the defendant, a deputy sheriff of this county, for a false return of a writ of execution. It was submitted to the Court upon an agreed statement of facts, which were recited by the chief justice in delivering the opinion of the Court. An argument was had at the adjourned session in July last, by Channing for the plaintiff, and Sullivan for the defendant, after which the action was continued for advisement to this term.</p>

The declaration in this action was in covenant broken upon an indented lease, by which the defendant demised to the plaintiffs a certain brick store, with the land and appurtenances thereto belonging, situate in State Street, in Boston, and covenanted and agreed with the plaintiffs that they should hold and occupy the said premises for the term of five years, to commence on the Sth day of September, 1804, on Condition of the quarterly payment of the rent of 500 dollars per…

This was a petition for partition of a parcel of land in the county of Lincoln, known by the name of Brown’s right, described as a tract eight miles wide, and twenty-five miles long. — The solicitor-general, who presented the petition, on moving for an [ * 253 ] order of notice to all concerned, * suggested that the tract described in the petition comprehended several townships and parts of townships, which contained several thousand inhabitants.

<p>Where one engaged as surety for a seaman, who enlisted on board a vessel of the United States, that such seaman should repair on board the vessel, and proceed to sea therein, or, in default thereof, that the surety would be accountable for the wages advanced to the seaman, and the seaman deserted, it was held that no action lay against the surety in the name of the officer commanding the vessel, but the remedy was exclusively in the name of the United States.</p>

This was a special action of the case against the defendants, merchants in Boston, for not having caused insurance to be effected on the sloop Rambler and cargo, belonging to the plaintiffs, merchants at Surinam. The action was tried on the general issue, at the last November term in this county, before Parker, J., from whose report it appears that the defendants are general commission merchants, and have before transacted mercantile business for the plaintiffs.

<p>In this action, which was on contract, Fuller, of counsel for the defendant, moved for a new trial; one of the grounds of which motion was the admission by the judge, at the trial, of a deposition of a M. Coquebat, taken in France, and which was objected to, as containing no evidence that an oath had been administered to the deponent.</p> <p>The deposition began thus : “ jDefait le sieur Coquebat a la moine droite levee, declare,” &c.; and it concluded thus:</p> <p>“ Telle est sa declaration, qu’apres lecture il a reconnue ajjime et signee. La minute est signee G. Coquebat.”</p> <p>“De laquelle declaration nous,juge de paix surdid, avons decernee acte, pour savoir et valoir ce qui sera juge appartenir.”</p>

Rowe moved the Court, that a writ of habeas corpus should issue to bring in the body of M’Neil, who had been arrested by a constable on a civil process, while attending this Court as a witness, notwithstanding he had a writ of protection, which he had exhibited to the constable. Upon inquiry, it appeared that he had not been summoned as a witness, but attended voluntarily ; his father being the party in the action who desired his testimony.

<p>When, upon a bill in equity brought by a mortgagor for possession of the mortgaged premises, it shall appear that there is a balance due from the mortgagee to the mortgagor, the latter cannot have judgment and execution for such balance upon his bill in equity, but is put to his action at law.</p>

The supposed trustee stated that they owed Herrick, the principal defendant, nothing in his individual capacity at the time of the service of the writ upon them, but that, at that time, they were indebted to the firm of Smith Sf Herrick, of which the said Herrick, the principal, is one, a certain sum payable in cash, and another sum payable in merchandise ; and upon these facts they pray to be discharged, and to be allowed their legal costs.

This was a writ of error, brought to reverse a judgment of the Court of Common Pleas for this county, rendered in favor of the plaintiff in error, who was also plaintiff in the original action. The error assigned was, that the judgment was rendered for too small a sum in damages, owing to a mistake in the calculation of the interest upon a promissory note, upon which the original action was brought.

<p>Upon the application of Margaret Larey, stating herself to be the mother of Catharine Cuddy, an infant, and alleging that the said Catharine was unlawfully restrained of her liberty by the respondent, Hamilton, a writ of habeas corpus ad subjiciendum issued to the said Hamilton, commanding him forthwith to bring into Court the body of the said Catharine, with the cause of her restraint, &c.</p> <p>The respondent returned that the said Catharine was duly bound in service to him, until she should attain the age of eighteen years, by the church-wardens of the parish of Niagara, in the province of Upper Canada, in conformity to the laws of that province, and is now within the years for which she was so bound ; and he annexed a copy of the indenture, by which the binding was made.</p> <p>J. T. Austin, for the commonwealth, moved that the infant should be discharged, and, in support of his motion, he made two points: —</p> <p>1. That if there were no indentures of apprenticeship, the mother was entitled to her charge.</p> <p>2. That the indentures set forth in the return are in this commonwealth nugatory and void.</p> <p>As to the first point, he referred the Court to the case of Wright vs. Wright, (1) and to the other authorities in the margin. (2)</p> <p>Upon the second point, he contended that the indentures were a contract between foreigners in a foreign country, and would support no action in this Court. (3) The contract is executory, as the beneficial interest of the defendant was the future services to be performed by the minor.</p> <p>Indentures made without the consent of the minor, or the natural guardian, are in restraint of the personal liberty of the citizen, and are ineffectual and void here. There is no process of law, by which the defendant could retake this minor, if she left his service.</p> <p>[ * 274 ] * There is no reciprocadty of obligation in this case. There is no counterpart of the indenture here ; so the defendant may discharge this infant at his pleasure, in case of sickness or any other misfortune, and there is no authority here to compel him to relieve her. Neither can he be compelled to give her the instructions he has contracted to give, nor is there any au thority to discharge the infant for his negligence or misbehavior, although our laws make provision in all these cases, where apprentices are properly bound.</p> <p>This indenture is repugnant to the English law (4) under which it was made. If the overseers cannot legally bind poor children to persons in another parish, much less can they to a person in another kingdom. If such person should consent to receive the apprentice, he would not be bound to retain him longer than he chose.</p> <p>These indentures are also void as repugnant to our own laws, which prohibit the carrying the minor out of the state without the consent of his guardian, and require that the indentures shall contain certain covenants for the minor’s benefit not found in this indenture, and provide a remedy in case of neglect, &c.</p>

<p>Upon a libel for a divorce from the bonds of matrimony, the respondent pleaded that the several allegations contained in the libel are wholly false, and thereupon prayed that the divorce prayed for might not be granted.</p> <p>The respondent then moved for a continuance, and filed his affidavit, stating the absence of a material witness, by whom he expected to prove adultery in the libellant.</p>

<p>In an action upon a policy of insurance, the sentence of a foreign Court of Vice-Admiralty, condemning the ship insured for a breach of blockade, is conclusirf evidence of the fact of such breach of blockade.</p>

Assumpsit for wages due to the plaintiff, as mate of the schooner Eliza, owned by John Gray, now deceased, and commanded by the defendant, on a voyage from Boston to the West Indies and back to Boston. On the general issue pleaded and joined, the cause was tried at the last November term in this county, before Parlcer, J., and a verdict found for the plaintiff, subject to the opinion of the Court on the facts in evidence, as they should be reported by the judge.

<p>The provisions of the 3d section of the statute of 1807, c. 74, called The Limitation and Settlement Act, extend to the case where a tenant in a real action claims to hold under a title which proves defective, as well as where he holds by virtue of a possession and improvement only.</p>

<p>Assumpsit on a note in writing, by which the defendant promised the plaintiff to deliver him thirty-seven barrels of beef on demand.</p> <p>On the general issue pleaded and joined, the action was tried before Parker, J., at the last November term, when a verdict was taken for the plaintiff by consent, subject to the opinion of the Court upon the report of the judge who sat on the trial.</p> <p>From the report it appears that the defendant made the note declared on, but that there had been no demand for the beef, unless the following facts do in law amount to such demand, vis., that, within four years from the making of the note, the defendant became a bankrupt, and was duly proceeded against as such, but never obtained a certificate; that the plaintiff exhibited the note in question to the commissioners who had before them the case of the defendant, having made oath, “ that the defendant was and is justly indebted to the plaintiff in the sum of 411 dollars, for money had and received, and for which sum he has received no satisfaction nor security but the said note,” and the said claim was accordingly allowed by the commissioners, and a dividend ordered thereon which dividend was not received by the plaintiff before the commencement of the present action.</p> <p>And it was agreed by the parties, that if the Court should be of opinion that the facts aforesaid are in law equivalent to a demand on the defendant, judgment should be entered on the verdict; otherwise the plaintiff should become nonsuit.</p> <p>At this term, Sullivan, for the defendant, moved the Court to set aside the verdict, and he argued that, until a demand made, no right of action existed ; there was no breach of the promise made by the defendant; and the plaintiff had no right to prove his debt under the commission. (1) But if this were not so, the plaintiff [*311 ] did not demand a performance * of this promise before the commissioners. His demand was for money had and received; and he stated the precise sum due him. And whether he had, or had not, a demand provable before the commissioners, still, to support this action against the defendant, he is bound to show a demand upon him, which is necessary to give him a cause of action upon this promise.</p>

<p>A vessel insured for the voyage, and until moored twenty-four hours in safety, arrived at her port of destination in a gale of wind, and came to anchor; the gale increased during the twenty-four hours, after which the vessel lost her anchors, and was driven on shore; it was held, the underwriters were discharged.</p>

<p>This action was assumpsit by the plaintiff, as endorsee of a bill of exchange, drawn in Boston by Meriam & Perry, merchants in South Carolina, on Justin Smith, merchant in Philadelphia, in favor of the defendants, and by them regularly endorsed to the plaintiff.</p> <p>The action came before the Court on facts agreed by the parties in a case stated by them. The only question arising on the facts is, whether notice of the protest for the non-payment of the bill in Philadelphia was given to the defendants in Boston, so as to make them liable as endorsers.</p> <p>The facts agreed are, that the notary public in Philadelphia, who protested the bill for non-payment, on the day of the protest, or on the morning of the next day before the mail for Boston was closed, put a letter into the post-office in Philadelphia, directed to the defendants in Boston, and containing the necessary notice ; but the case adds, “It does not appear that the defendants ever received that letter.”</p> <p>It is also agreed that the drawers and the drawee of the bill had failed some time before the bill became payable, of which the defendants at that time had knowledge.</p>

<p>Where a voyage is abandoned from fear of capture, it is not so defeated as to charge underwriters with a total loss.</p>

This action was assumpsit for a quantity of New England rum sold and delivered by the plaintiff to the defendant. The general issue was pleaded, and upon a trial before Parker, J., at the last November term, a verdict was taken by consent for the plaintiff, subject to the opinion of the Court on the facts stated in the judge’s report.

This was an action of trover for the conversion of 650 barrels of flour, the property of the plaintiff. At the trial upon the general issue, at the last November term, before Parker, J., a verdict was found for the plaintiff, agreeably to the directions of the judge who sat in the trial.

Case against the defendant, as sheriff of the county of Middle-sex, for the misconduct of Peter Edes, his deputy. On the general issue pleaded and joined, a trial was had at the last November term, before Parker, J., and a verdict taken for the plaintiff, subject to the opinion of the Court on the question whether the judge, who sat in the cause, rightfully rejected certain evidence offered by the defendant in the course of the trial.

<p>In pleading a common recovery as sued to the use of the tenant in tail, who was tenant to the prtztipe, it is not necessary to aver that the indenture to lead the uses was executed by him, as the recovery would have the same effect without the indenture, as that was intended to give it</p> <p>Nor is it necessary to show that the attorney of record of the tenant was legally constituted by him ; such a fact can only avail in error to reverse the common recovery.</p> <p>When the statute of limitations once begins to run against an heir in tail, no subsequent event can interrupt its progress; and when it has run twenty years, no formedon can afterwards be maintained.</p>

The defendant Brannon, having been, by the Municipal Court in Boston, on the prosecution of the plaintiff, adjudged the putative father of her bastard child, entered into a recognizance to her, before that court, for the maintenance of the child ; and this action is scire facias on that recognizance. The defendants pleaded the payment and receipt of 150 dollars, by way of accord and satisfaction. This plea was traversed, and an issue to the country joined on the traverse.

<p>Where an action of covenant broken is founded on privity of contract between the parties, their executors or administrators, it is transitory ; but when it is founded on privity of estate, it is local, and must be sued in the county where the land lies.</p>

<p>This action was entry sur disseisin, in which the demandant demanded a parcel of land in Boston, formerly flats, but now part of India Street, counting on his own seisin within thirty years, and on a disseisin by the tenants, who pleaded the general issue. On the trial, a verdict was taken for the tenants, subject to the opinion of the Court upon a case reserved by the parties</p> <p>The cause was argued at this term by Dexter and Charming for the demandant, and by Otis and Jaclcson for the tenants; after which the opinion of the Court was delivered by the chief justice, from which the facts in the case, and the points made by the counsel at the bar, will sufficiently appear.</p>

<p>In an action brought upon a bond to review, where it appeared that the jury on the trial by review had affirmed the first judgment for the original plaintiffs, who were the defendants in review, and had added interest at six per cent, to the time of their verdict, the Court gave an additional six per cent, on the amount of the first judgment to the second verdict, double costs, and interest on the whole from the judgment in review.</p>

<p>In an action upon a bond to save harmless the obligee, by reason of his having given a receipt on behalf of the obligors, the defendants pleaded non dammficatus; the plaintiff replied the attachment of his property in the hands of his trustees, and a payment by them of a sum of money in discharge of the said suit; the defendants traverse the payment before the commencement of the action against them; it was held, that the replication was not double, and that the rejoinder was bad.</p>

This action was trover for certain chattels claimed by the plaintiffs as their property, and averred by them to have been converted by the defendant to his own use.

<p>Where one, by public advertisement, offered a reward for a parcel of bank billa which he had lost, it was held, that the finder of a part was entitled to a pro raid proportion of the reward offered.</p>

<p>A justice of the peace cannot hold one to bail for an offence which may, by law, be prosecuted by information qui tam, as well as by indictment</p>

<p>Uf the evidence m an action of entry sur disseisin.</p> <p>[An actual seisin of the ancestor, within the time alleged m the writ, being proved, the tenant must show a rightful entry; but acquiescence for more than twenty years in the adverse possession and enjoyment of such tenant, is primó facie evidence of a rightful entry and possession under a lost deed. — En.j</p>

<p>The letters of a deceased agent were received as evidence of a demand made upon a debtor of his principal on the coast of Africa.</p> <p>A contract made in a foreign place, valid there, and to be there executed, may be enforced in this state, although not valid by our laws, or prohibited to our citizens, except the commonwealth or its citizens may be injured by giving the contract a legal efiect here, or the enforcing it in our courts would exhibit to the citizens of the state an example pernicious and detestable.</p> <p>Where one had purchased a cárgo on th'e coast of Africa, to be paid for in slaves, and, having delivered a part of the slaves, settled the account, acknowledging a balance due in cash, and the same day gave a note for the same balance payable in slaves, it was held, that the creditor might recover on the insimm computassent.</p>

This was an action on a foreign bill of exchange, sued by the plaintiff as endorsee of the payee, against the defendant as the drawer. On the trial, upon the general issue, at the sittings after the last May term in this county, before Parker, J., a verdict was taken by consent for the plaintiff, subject to the opinion of the Court on a case agreed by the parties. From the case, it appears that the bill was drawn by the defendant, whose signature is admitted, on Messrs.

<p>In the year 1768, the said Joseph Storer, deceased, on taking administration of the estate of the said John Storer, gave an administration bond to the judge of probate for this county and his successors. The said Joseph Storer died before he had closed his said administration. The defendants, * his ad- [ * 391 ] ministrators, settled an administration account of their intestate, as he was administrator of the estate of the said John Storer, deceased, which was allowed in the probate office in September, 1798, when a balance of 627 dollars 14 cents was found due from the estate of Joseph Storer, deceased, to the plaintiff, as administrator de bonis non of John Storer’s estate; and a decree was passed, directing the defendants to pay that balance to the plaintiff.</p> <p>That balance not being paid, the administration bond aforesaid, given by the said Joseph Storer, deceased, was afterwards put in suit against his administrators, the now defendants, for the benefit of the plaintiff, as administrator de bonis non; and such were the proceedings in that suit, that at the May term of this Court, holden in 1803, judgment was rendered, that the judge of probate, in his said capacity, recover against the defendants, as administrators, the penalty of the bond and costs; and it was ordered by the Court that no execution should issue on that judgment, until the further order of the Court, and that the said judgment should be a security for the payment by the defendants of such sums as should be found due from them, as administrators of Joseph Storer, to the plaintiff, as administrator de bonis non of John Storer, or to the next, of kin to the said John Storer, deceased, and their legal representatives, upon the adjustment of the plaintiff’s administration account, and upon a decree for the distribution of the balance that should be remaining in his hands.</p> <p>No further proceedings' appear to have been had upon that judgment. But the plaintiff, as administrator de bonis non of John Storer, deceased, brings the present action of debt against the defendants, as administrators of Joseph Storer, deceased ; declaring on the aforesaid decree of the Probate Court as on a judgment.</p> <p>To this declaration the defendants plead in bar, alleging all the above-recited proceedings, and judgment on the [ * 392 ] * administration bond, and averring that the plaintiff hath not, since the judgment, made any adjustment of his administration accounts, and that no subsequent decree of distribution has passed.</p> <p>To this plea in bar the plaintiff demurs, and the defendants join in demurrer.</p> <p>The counsel for the defendants contended that no action lies on a decree of the judge of probate, the law having furnished another and better remedy by an action on the administration bond, which covers every neglect or fault of the administrator, and by the extensiveness of the condition applies to every case in which he can be culpable. But admitting the plaintiff entitled to a remedy equally on the bond and on the decree, yet he cannot have both remedies; and having elected to proceed on the bond, the judgment on that is a good bar to a subsequent action upon the decree. If he recovers in this action, he may still sue out a scire facias upon the former judgment upon the bond, which yet hangs over the defendants’ heads, for the whole penalty and costs. Where a party is by law entitled to two remedies, and has elected one of them, it is a good answer to the second that he has already recovered upon the other; and it is not material whether he has obtained satisfaction. Further, if the plaintiff has a right of action upon this decree, yet it should have been brought against the defendants in their personal capacity, and not as administrators.</p>

Trover for the conversion of a title deed of lands of the plaintiff ’s intestate, of which he died seised, alleged to have been committed in the lifetime of the intestate. The parties agreed on the sum for which judgment should be rendered against the defendant, if the Court should be of opinion that the plaintiff, in her capacity of administratrix, is entitled to recover.

This appeal was claimed and allowed in September, 1809, and was made to, and entered at, the then next term of this Court, viz., October term, 1809.

<p>Upon a complaint to the Comraoh Pleas by the owner of lands overflowed by a mill-dam, against the nwaer of the dam, the latter may traverse the complainant’s title to the leads overflowed; may set up a right to overflow them, without payment of damages, or for an agreed composition; or he may deny that he is owner uf the dam, or that the complainant has sustained any damage if issue be joined upon either point, an appeal lies to this Court — Otherwise, where the quantum of the damages is the only question.</p> <p>No appeal lies to this Court, by stat 1782, c. 11, except in civil suits commenced by writ</p>

<p>A constable is not authorized to serve an original writ in a real action.</p>

<p>This was an action of assumpsit, brought to recover of the defendants a sum of money, which had been assessed, by the proper officers of the said parish, on the polls and estates of James Buxton and Amos Knight, as their ministerial taxes for the years 1798 to 1805, inclusive, for the support of the Congregational minister settled in said parish; the said B.uxton and Knight having been, during said years, inhabitants of said parish ; which sum the plaintiff demands, that it may be applied to his support and maintenance, as the Protestant teacher of a religious society in said town of Falmouth, alleged to be of a different denomination from that of the Congregational society composing said parish, viz., Universalists; said Buxton and Knight being also alleged to have belonged to the said society, * whereof the plaintiff is al- [*402] leged to be the teacher, as aforesaid.</p> <p>Upon the trial of the cause, which was had upon the general issue, before Thatcher, J, October term, 1807, the plaintiff’s counsel having proved the payment to the defendants of the taxes demanded in the declaration, and a proper demand of them by the plaintiff before the date of the writ, offered to prove to the jury by witnesses, that the plaintiff was, and had been for several years, including the years before named, a public teacher, as aforesaid, of the society aforesaid, in said Falmouth, and was, about seven years previous to the trial, by the wish and consent of said society, placed and ordained over them as their teacher, (although the mode of ordination was not stated,) and so continued ; although the said society has never been incorporated by any act of the legislature.</p> <p>But the judge rejected the proof so offered as improper and inadmissible, inasmuch as such facts could only be proved by record ; and accordingly no further proof was afterwards offered in the cause. And the judge instructed and directed the jury, that as the said society, over which the plaintiff was alleged to be ordained, was not a town, parish, precinct, or body politic, or religious society incorporated within the meaning of the constitution and laws of this commonwealth, the said action could not in law be maintained. The jury returned a verdict for the defendants, pursuant to the said direction. The opinion and direction aforesaid were excepted to by the counsel for the plaintiff; and the exceptions being allowed by the judge, the action stood over for the opinion of the whole Court thereon ; and was argued at the May term, 1808, and again at the last May term, by Mellen for the plaintiff, and Longfellow for the defendants.</p> <p>Mellen observed that at the trial the defendants had principally relied on the statute of 1799, c. 87, as requiring an incorporation of a society, before its teacher can have a right to demand the taxes paid by his hearers for * the support of [*401$ j public worship. He denied this to be the true construction of that statute. But if it was, he contended that it was opposed to the declaration of rights as relating to this subject, and was therefore void ; and if the statute was consistent with the declaration of rights, it ought to receive such a construction as shall not militate with it. The declaration gives the right, which the plaintiff is by this action endeavoring to avail himself of, to the public teachers of religious societies of a different sect or denomination from that of the town or parish. The word public is opposed to private or domestic; and a public teacher must mean one who openly instructs, in a stated place or places, those who resort to him for instruction. Such an assembly may be, and in fact frequently is. much more numerous than many of those which are incorporaled. The plaintiff in this case has received regular ordination; and the case finds that, during the years for which the tax is demanded, he has uniformly officiated with a society, of which the persons whose taxes are demanded are members. That the Universalists are of a different denomination from the incorporated parish, the defendants, it is presumed, will not be disposed to deny.</p> <p>Longfellow contended, 1. That the plaintiff was not a teacher of a different sect or denomination from the defendants. Those terms relate wholly to discipline, in which these parties agree. They are both Congregationalists. But, 2. He insisted that to constitute one a public teacher within the meaning of the declaration of rights, it was necessary that he be the teacher of an incorporated society, such a one as could be compelled to support their teacher, and such a one, too, as might be punishable for neglect of providing a public teacher. He expatiated on the mischiefs arising out of another construction, and urged that the legislature, by the statute of 1799, had given the same construction which he contended for.</p>

<p>This was a writ of entry sur disseisin in the per, in which the demandants count on the seisin of Samuel Waldo, their ancestor, within fifty years, and on a disseisin by one George Knight, by whom the tenants have their right of entry. The tenants pleaded the general issue, that the said George Knight did not disseise, &c., which was joined by the demandants.</p> <p>On the trial of this issue, at the last October term in this county, before Sedgwick, J., after the demandants had opened their title on their part, and produced their evidence, the tenants offered to prove, and did prove, that they had been in the exclusive possession of the demanded premises for thirty-nine years last past; and that, during said possession, and before the commencement of this action, two deeds were made, to wit, one by Sarah T. Waldo, as administratrix of Samuel Waldo, father of some of the demandants, and the other by Lucy Waldo, one of the demandants, to one Adam Sloan; the first deed bearing date November 23d, 1801, and purporting to convey nine twentieths of the demanded premises, and the second deed bearing date July 15th, 1802, and purporting a release of all the grantor’s estate in the demanded premises. Upon which the judge directed the jury, that if they believed the evidence of the possession by the tenants, and of the execution of the said two deeds, they ought to find their verdict for the tenants; and they [*419] found for the*tenants accordingly. The demandants moved for a new trial, as for a misdirection, and the cause stood over for the decision of the whole Court upon the said motion.</p> <p>And now Davis, solicitor-general, and Mellen, of counsel for the tenants, being called on by the Court to support their verdict, referred to a former decision of this Court in a case of Drinkwater vs. Martin, as in point for the tenants, which, being within the memory of the present judges, they did not recite. They argued that the land in question, if recovered by the demandants, would enure to the use of Sloan by way of estoppel, and, therefore, that the demandants ought likewise to be estopped. It was said, too, that it did not lie in the mouth of these grantors to say that they made a void deed, by which nothing passed.</p>

<p>Replevin for one hundred and ninety tons of Liverpool salt. The cause was submitted to the Court on a statement of facts agreed by the parties.</p> <p>The facts agreed are, that Lemuel Weeks & Son, being sole owners of the ship Harriet, and having sent her on a voyage to Liverpool, in Great Britain, and back to the United States under the command of David Gray, as master, while the said ship was at Liverpool, on the said voyage, on the 2d of January, 1808, conveyed one moiety of the ship and appurtenances, with all her earnings which might be due for freight on her return voyage, to the plaintiffs in mortgage, to secure to them the payment of certair promissory notes, which the bank held, and which were signed by one William Stevens, Jun., payable to said Weeks Sf Son, and by them endorsed; that, after the said conveyance, the house of Logan, Lenox, &f Co., in Liverpool, of which house the said Stubbs is a partner, shipped on board of the Harriet the salt replevied by the writ in this case, to be transported to Boston, and there to be delivered to the said Stubbs; that the said master received the said salt on board, and signed bills of lading for the same, by which he stipulated, * with the usual exceptions, to deliver the salt at [ * 423 ] Boston to the said Stubbs, or his assigns, acknowledging that the freight had been paid him at Liverpool; that, during this transaction, and until after the ship sailed for Boston, neith he said house of Logan, Lenox, Co., nor the said master, had any knowledge of the said mortgage to the plaintiffs; that the said ship, on her voyage to Boston, with the said salt on board, and also the said Stubbs, who had sailed in another vessel in company as a passenger, put into Portland, and there Stubbs required the said Gray, the master, to proceed to Boston, and there to deliver him the salt, agreeably to the bills of lading, which the said Gray refused to do, unless Stubbs would agree to pay the freight therefor from Liver pool to Boston; that Stubbs then required Gray to deliver him the salt at Portland, which Gray also refused, unless Stubbs would agree to pay the freight therefor from Liverpool to Portland; that the plaintiffs can prove that no freight was paid for the said “salt, in Liverpool, if such proof is in this case by law admissible; that Stubbs refused to pay any freight for the said salt, but replevied it from the said Gray, by a writ executed by the said Gibbs, then a deputy sheriff; and that thereupon the plaintiffs took it by this writ of replevin, claiming to detain the same until they should receive the freight.</p> <p>And it was agreed that if, upon consideration of these facts, the Court should be of opinion that the plaintiffs ought to have and maintain this action, the defendants should be defaulted, and judgment be rendered against them for nominal damages, and for their costs; otherwise the plaintiffs should become nonsuit, and judg ment be rendered for a return of the salt, and damages and costs, agreeably to law.</p>

<p>Where a Kote was obtained by unfair means from the maker, it was held, that he was still liable to an endorsee, who had obtained it bona fide, for a full consideration, and without any knowledge of the fraud, and within seven days from its date, the note having been made at Portland, payable on demand, and sold to the endorsee in Boston.</p>

<p>Assumpsit by the endorsee against the drawer of a bill of [ * 431 ] exchange, drawn in Antigua, upon Thomas Merrill, * Jun., of Portland, made payable to F. G. Robinson Sf Co., and by them endorsed to John Taber if Son, and by these last specially endorsed to the plaintiff as follows, viz.: —</p> <p>“ Pay Jacob Barker or order, without recourse to us.</p> <p> John Taber & Son.” </p> <p>The action was tried upon the general issue before Sedgwick, J., at the last October term in this county, by whose report it appeared that the bill of exchange declared on was sent to the said John Taber and Daniel Taber by the said Francis G. Robinson Sf Co., as their agents, for collection only. And thereupon the defendant offered the said John Taber as a witness, to prove that the said note was by him, in the name of himself and partner, the said Daniel Taber, endorsed, in the manner expressed on the back thereof, to the plaintiff, merely as the agent of the said F. G. Robinson Co., and for their use. The said John Taber was admitted as a witness, although objected to, and did testify to the fact above mentioned. It was then proved that the said F. G. Robinson <¡f Co., before the commencement of this action, requested the defendant not to pay the contents of the said bill to the plaintiff. And thereupon the jury were directed, if they believed the fact testified to by the said John Taber to be true, to find a verdict for the defendant, which they accordingly did. The parties agreed that the verdict should stand or be set aside, according to the opinion of the Court, as to the propriety of the admission of the said Taber as a witness, as above stated.</p> <p>And now, Hopkins, for the plaintiff, moved for a new trial, on the ground that Taber was an incompetent witness. No one is a competent witness to impeach a security which he has given, though he is not interested in'the event of the suit. (1) But the witness here was directly interested in the event of the suit; for, if the plaintiff recovered, Taber would be immediately liable to Robinson S)' Co. for misconduct as their agent. Taber & Son were employed as commission merchants, and were thus answerable for * slight negligence; or, if they were to have no remuner- [ * 438 ] ation, they were still liable for misconduct or gross negligence in the execution of their trust. (2)</p>

<p>This was an action of trespass for breaking and entering the plaintiff’s close, situate on Gamaliel’s Neck, in the town of Cape Elizabeth, in this county, including a parcel of flats between high water mark and low water mark, over which the sea ebbs and flows.</p> <p>The defendant pleaded two pleas: the general issue, and soil and freehold in himself. On these pleas, issues were joined to the country, which were tried before Sedgwick, J., at the last October term in this county; and on both issues a verdict was taken for the plaintiff, subject to the opinion of the Court upon two questions, viz: —</p> <p>1. Whether the deeds hereafter mentioned, one of which was from Abigail Dyer, as administratrix of the estate of Benjamin Dyer, to Caleb Dyer, bearing date December 9th, 1790, and the other from the said Abigail, administratrix as aforesaid, to Joshua Dyer, bearing date December 10th, 1790, did convey the land there lying between high and low water mark.</p> <p>[ *436 ] *It was agreed that those deeds legally conveyed the estate, as therein expressed, to the respective grantees; that the title to the same estate was in the plaintiff; and that the shore therein mentioned adjoins water of the sea, which ebbs and flows, but less than one hundred rods.</p> <p>The first of said deeds purports to convey twelve and a half acres of land, within certain boundaries, two of which boundaries are “ running from a certain stake there described, N. 28° W. to the shore of the neck, thence by the shore to other land of the said Qaleb.” The deed to Joshua Dyer purports also to be a conveyance of twelve and a half acres of land adjoining on one side to the land described in the first deed. Among the boundaries, one line runs from a heap of stones there mentioned north-westwardly seven rods, to a heap of stones at the shore of the neck at William Elwell’s Corner, so called, thence by the shore to the land conveyed in the first deed.</p> <p>2. Whether by law the defendant might, by oral testimony, explain the intent of the grants made by the said deeds.</p> <p>And now, at this term, it was agreed by Mellen, for the plaintiff, that the signification of the word sea-shore, as universally understood in this country, was the line or margin of the water for the time being; and the true construction of these deeds must be, that they conveyed the land to such line; but as the boundary must be a fixed and certain line, as distinguished from a variable or changing one, and as every deed is to be construed most strictly against the grantor, the farthest boundary, or low water mark, must be here intended by the shore.</p> <p>But without the aid of construction, and supposing the grant to extend only to the edge of the upland, — the ordinance of 1641, although perhaps repealed by the vacating of the first charter, still forms the common law of the country, and gives to the owner of upland adjoining the sea “ the propriety to low water mark, where,” as the case finds here, “ the sea doth not ebb above one hundred rods.”</p>

This suit was upon an information in the nature of an inquest of office, founded on the statute of 1791, c. 13.

<p>In assumpsit, the defendants severally pleaded the general issue of non assumpsit, which was joined by the plaintiff.</p> <p>, On a trial before Parker, J., during this term, a verdict was returned for the defendants.</p> <p>Afterwards, when the Court was full, Orr moved for a direction to the clerk to tax costs for each of the defendants, as they had pleaded severally.</p>

<p>When a plantation is made a town by incorporation, the inhabitants gain a settlement therein, and, of course, lose any former settlement they may have had.</p> <p>When the overseers of the poor apply to the Common Pleas for the removal of a pauper, they act as mere agents of the town; and if they fail, costs may be taxed for the respondents against the town.</p> <p>Where a complaint alleges the settlement of a pauper to be in B., it is not a material error, if the court adjudge the settlement to be not in B., but in the town in whose behalf the complaint is made.</p>

<p>The appellant, at a Probate Court holden in February, 1809, represented to the judge, that the estate of her intestate was insolvent, and prayed for the appointment of commissioners to receive and examine the claims of the creditors. On a hearing of the parties, the judge rejected the representation of the administratrix, and refused to appoint commissioners. —Afterwards, at a Probate Court holden in July of the same year, she again represented to the judge, that the estate was insolvent, and insufficient to pay all the just debts of the deceased, and renewed her request for the appointment of commissioners; declaring that she was ready to prove the truth of her representation by legal evidence. The judge refused to receive this evidence, decreed that her representation should be rejected, and denied her request for the appointment of commis sioners, because he had before decreed that her first representation should not be allowed, nor her prayer for the appointment of commissioners be granted. From this decree of the judge she appealed to this Court, and filed her reasons of appeal, one of which is the refusal of the judge to receive evidence of the insolvency of the estate of her intestate.</p>

<p>Where a note is payable at a day certain, with grace, notice to the endorser, ot the non-payment by the maker, given on the last day of grace, is sufficient.</p> <p>A party to a usurious negotiable security cannot be a witness to defeat the security on the ground of usury.</p>

<p>This was an action of assumpsit. The declaration contained a number of counts upon promissory notes made by *the defendants, for sums less than five dollars, and [*452] payable to bearer. The counts were in the usual form, containing the common averments.</p> <p>On the trial upon the general issue, which was had before Thatcher, J., at the last May term in this county, the notes were produced, all bearing date before the first of April, 1805, not being wholly in writing, but bearing the impression of printers’ types. The defence at the trial was founded on the statute of 1804, c. 58, in which it is enacted that no action shall be maintained in any court of law on any promissory note, for any sum under five dollars, and made payable to bearer or order, which shall bear the impression of plates, types, or printing, if such notes be issued after the first day of April, 1805. Under this statute, the defendants insisted that it was not enough for the plaintiffs to prove the signatures of the defendants, but that they were also bound to prove that the notes were issued on or before the first of April, 1805. The judge directed the jury otherwise. The defendants also insisted that the plaintiffs ought to prove that they were the bearers of the notes before that day. On this point, also, the direction of the judge was against them. And the defendants further insisted, as these notes passed by delivery, that the plaintiffs should prove the delivery to themselves. The direction of the judge was likewise against them on this point. A verdict being returned for the plaintiffs, the defendants filed exceptions to the foregoing directions, and moved for a new trial.</p> <p>At this term, Whitman, for the defendants, enforced the points raised at the trial.</p>

<p>This was an action of trespass for obstructing the plaintiff’s watercourse in Winthrop, and filling up the same with logs, stones, and earth.</p> <p>The defendant pleaded that the watercourse mentioned in the plaintiff’s declaration was a nuisance in the highway in Winthrop, and that the abatement of that nuisance was the trespass alleged.</p> <p>To this plea the plaintiff replied in substance, that he was seised of a close of land on each side of the highway, the one close on the north, and the other on the south side; and that he was [ * 455 ] possessed of a right of conducting water * from the close on the north to the close on the south side of the highway, for the purpose of working certain mills belonging to him, and standing on the close last mentioned.</p> <p>The rejoinder denied the right of the plaintiff to the watercourse, for the purpose mentioned in the replication, and on this right an issue was joined to the country.</p> <p>Upon the trial of this issue, before Sedgwick, J., at the last October term in this county, it appeared that one John Chandler formerly owned the two closes before mentioned, and that one Sampson Da-vis purchased the north close, bounded upon the road upon one side, and on the water upon the other side, by deed dated December 5th, 1798, with privileges through Chandler’s land to his upper mill-pond or dam, for the purpose of conveying water where Chandler formerly conveyed it, or in any other place, where Davis should think most convenient, and the privilege of digging a ditch into Chandler’s mill stream for the conveyance of water. After-wards, on the 7th day of the same month, Davis purchased of Chan aller the south close, which was bounded by the water on one side, and on the opposite side by the highway. On the 21st of January, 1801, Amos Perley duly levied an execution, issued upon a judgment in his favor against Davis, upon the two closes, and on the land between them, over which the highway was located ; and on the 12th of April, 1803, the said Amos Perley, by deed of release, conveyed to the plaintiff in fee, the estate on which his said execution was levied. Upon these conveyances the plaintiff rested his right to the watercourse; he having also offered evidence to prove that he was in possession of the land described in Amos Perley’s deed of release to him, at the time it was given.</p> <p>It was agreed' that the plaintiff, claiming a right to do it, made the watercourse, for the filling up and obstructing whereof he brought this action, to convey therein water from the close on the north side to the close on the south side of the highway, [ * 456 ] for the purpose of working his mills * standing on the last-mentioned close, and that those closes were the same conveyed by Chandler to Davis.</p> <p>A verdict was taken for the plaintiff by consent, subject to the opinion of tfee Court, upon the facts, which are in substance above atcd. And if the Court should be of opinion that the plaintiff jad the right put in issue, judgment should be rendered on the verdiet so taken; and otherwise, that a verdict should be entered for the defendant, and judgment be rendered accordingly.</p>

The plaintiffs in this action, having obtained a verdict, moved the Court that they might be allowed to tax costs for their travel from Boston, where their office is situate, their records kept, and their meetings uniformly held.

<p>This was an action of the case, for the defendant’s not accounting to the plaintiff for a quantity of ash barrel heading, which the defendant was to merchandise as the plaintiff’s bailiff, and for which he promised to account.</p> <p>A trial was had on the general issue before Sedgwick, J., at the last October term in this county, and a verdict being found for the defendant, the plaintiff moved for a new trial, alleging that the verdict was given against evidence, which is reported by the judge who sat in the trial. It is agreed by the parties, that, after the evidence on each side was given to the jury, the counsel for neither party summed up his evidence, but left it to the judge to sum up, and to give to the jury the necessary instructions. The judge reports that the evidence to support the plaintiff’s demand [#460] was' contained *in certain depositions, which accompany the report, which were unimpeached, uncontradicted, and unexplained, and were sufficient, in the opinion of the judge, if believed by the jury, to support the plaintiff’s declaration so clearly, that he apprehended no instructions were necessary; and accordingly none were given, but such as related to the allowing of interest to the plaintiff.</p>

<p>Where one is answerable in a personal action to two or more, jointly, and settles the dispute with one of them, the cause of action is severed, and he shall still answer to the rest</p> <p>A want of proper plaintiffs in actions upon contract, is an exception to the merits, and is to be taken advantage of, either upon demurrer, in bar, or on the general issue, but not in abatement</p> <p>A false and fraudulent affirmation, made by the seller of an estate, to two or more purchasers, is, in its nature, a several tort to each, and they cannot join in an action therefor.</p>

<p>Insurance was upon a ship, her cargo, and freight, against a toted loss only. The ship was cast ashore, the cargo was saved, and the vessel afterwards got off and carried into a safe harbor; where the master, not having funds to repair her, which, however, might have been done at less than half her value, as agreed in the policy, sold her and the cargo, to defray the salvage and expenses incurred in attempts to preserve and secure her. It was held, that the assured was not entitled to recover upon the policy.</p>

This action was on a policy of insurance, subscribed by the defendants for 4000 dollars upon the plaintiff’s brig Betsey, valued at 4000 dollars, for one year commencing at noon on the 26th day of July, 1807, and ending at noon on the 26th day of July, 1808, against the usual risks, at a premium of ten per cent.

<p>A juror was put on the panel, upon his swearing that he had been summoned, the constable having omitted his name in the return of the warrant</p>

<p>Where a bona fide purchaser of land enters under his deed, and continues in the open possession of it, a second purchaser cannot avail himself of the first purchaser’s neglect to register his deed.</p> <p>Where judgment is rendered by consent in one county, as of a prior term in another county, property attached in the suit is holden only for thirty days from such prior term.</p>

<p>This was a certiorari to the Court of Common Pleas of this county, directing them to certify the record of the proceedings of the Sessions, in laying out and establishing a county road in the towns of Egremont and Sheffield, on the petition of Andrew Andrews and others. It appears that, on presenting the petition, the Court of Sessions, without notifying or hearing the towns in which the proposed road was to be located, and without any adjudication that the way prayed for was of common convenience or necessity, appointed a committee of five freeholders, to locate the way; and on their report the way was established by the Court of Sessions.</p>

Upon the return of a certiorari to certify the record of the proceedings of the Court of Sessions of this county, respecting the laying out and establishing a highway from Stockbridge Plain to the meeting-house in Great Barrington, several exceptions were taken to the record, two only of wh ch were considered by the Court.

<p>This was a writ of scire facias, in which the plaintiffs allege that, at the term of this Court holden in May, 1808, they recovered judgment against Benjamin Hawkins and Asher Canfield, both of the city of New York, for 43 dollars 30 cents, for costs and charges in an action brought against the now plaintiffs by the said Hawkins and Canfield; and although the judgment be thereof rendered, yet the execution thereof yet remains to be done ; whereupon the defendant Ives, who endorsed the original writ in the said action, is summoned to show cause wherefore the plaintiffs should not have their execution against him for the said costs.</p> <p>The defendant, by leave of the Court, pleaded two several pleas in bar: —</p> <p>1. That more than one year elapsed after the rendition of the judgment before the suing out of this scire facias.</p> <p>2. That no execution in favor of the plaintiffs has ever issued against the said Hawkins and Canfield, and been returned unsatisfied.</p> <p>To both these pleas in bar the plaintiffs demurred generally, and the defendant joined in demurrer.</p>

The writ of error in this case was brought to reverse a judgment of the Common Pleas for this county, rendered at the last April term, on a report of referees made under a rule entered into before a justice of the peace, pursuant to the statute of 1786, c. 21. Several errors were assigned ; but one only was insisted on, mz., that it did not appear by said report, that all the referees named in the submission were present at the hearing, two only having signed the report.

<p>No review lies under the statute of 1786, c. 66, unless there has been an issue to the country tried, and not two verdicts against the party applying for the review.</p> <p>If there has been but one trial, and the verdict found for him, if he is aggrieved, he may review.</p> <p>No review lies by the statute of a judgment on default, whether the damages were assessed by the Court or by a jury.</p> <p>Where issues in law as well as fact have been decided in an action, and the party aggrieved at the judgment, on the verdict reviews, all the issues may be again tried.</p> <p>Whether a dowager may have dower in a messuage erected after the alienation of the land by her husband. Quaere.</p>

<p>If one town will voluntarily maintain a pauper having a settlement in another town, no action will lie to recover compensation, unless it is given by the statute of 1793, c. 59, or is founded on an express promise.</p> <p>Notice from one town to another, to obtain the removal of a pauper, or a reimbursement of the expenses of a pauper’s support, is sufficient, if it be given to one of the overseers of the town on which the claim is made ; but it must be in writing, and signed by a major part of the overseers of the town giving the notice, or perhaps by an agent duly authorized by the town.</p>

The plaintiff declares on a promissory note made by the defendant, dated August 14th, 1802, payable to Messieurs Graves Sp Root or order for 75 dollars 50 cents on demand with interest, and endorsed by them to Perez Graves or order, and by him to the plaintiff. The defendant pleaded non assumpsit, and non assumpsit infra sex annos, on both which pleas issues were joined, and a verdict found for the plaintiff, that the defendant promised within six years.

<p>Where one falsely, maliciously, and without probable cause, arrests and imprisons another on a process, legal and regular in form, and obtains a deed from the party so arrested, to procure his deliverance, such deed may be avoided by duress of -imprisonment.</p>

Judgment having formerly been obtained by Freeland against the petitioners, when no review lay of right, the petitioners, on application to the discretion of this Court, obtained leave to review the action by virtue of the statute of 1791, c. 17. On the trial upon the review, the respondent again obtained a verdict, upon which judgment, as of course, was rendered against the petitioners They now applied to this Court for leave again to review the action

. This was an action of the case against the defendant for slandering the plaintiff, by saying of him, at various times, and before different citizens, “ He has stolen, and I can prove it.

<p>An alteration of a written promise, by the insertion of a word, which the law would have supplied, will not annul the contract, although it be interlined by the promisee without consent; and if it be an immaterial alteration, the law will presume the assent of the promisor to the making of it.</p> <p>Where one adds, at the bottom of the promissory note of another, that he acknowledges himself to be holden as surety for its payment, he is considered as an original joint promisor.</p>

The plaintiffs declare on a promissory note made by one Amasa Olesen, on the 21st of October, 1807, by which he promised the defendant to pay him or his order 125 dollars, at the Berkshire Bank, in sixty-one days ; and on an endorsement by the [ * 525 ] defendant, he waiving all right to * the notice, to which, by law or custom, he was entitled as endorser. The plaintiffs also allege a request and refusal by Glesen, the maker, and also notice to the defendant.