Volume 61 — Massachusetts Reports

<p>This was an action of assumpsit upon a policy of insurance, and was submitted to the court of common pleas, and, on appeal, to this court, upon the following statement of facts:</p> <p>“ It is agreed that the defendants insured the plaintiff, in the sum of $300, on his' interest in a certain barn, by the policy declared upon in this action, (a copy of which policy is hereunto annexed); that the building so insured was destroyed by fire, as in the plaintiff’s declaration alleged; that the defendants had due notice thereof; and that the plaintiff is entitled to recover the amount insured by the terms of the policy, with the interest thereon, unless the court shall be of opinion that the plaintiff is not entitled to maintain this action. It is admitted, that the plaintiff’s interest in the premises insured was that of mortgagee of one John Murphy, as expressed in a certain deed of mortgage, dated the 1st of April, 1845, a copy of which is hereto annexed. After notice of the loss, and previous to the commencement of this action, the defendants informed the plaintiff that they were ready, and offered, to pay him, if he would assign his mortgage interest to the same amount. But the plaintiff declined to assign his mortgage; and the defendants refused to pay the loss, unless such assignment should be made by the plaintiff.”</p> <p>The material part of the policy, which was dated the 1st of January, 1847, was as follows:</p> <p>“ This policy of insurance witnesséth, That, whereas Edward King, of Dorchester, in. the county of Norfolk, a member of the State Mutual Eire Insurance company, has, agreeably to the by-laws of said company, (hereunto annexed,) paid the sum of three dollars and seventy-five cents, as premium, and the further sum of three dollars and seventy-five cents, as deposit; and also bound and obliged himself, his heirs, executors, and administrators, to pay all such sum or Bums as may be assessed by the president and directors of said company, pursuant to the said by-laws, but not in any event to exceed the sum of fifteen dollars: In consideration of the premises, the said King, his heirs, executors, and administrators, are hereby insured against loss or damage by fire, under the conditions and limitations expressed in the said by-laws, and in this policy, for one year, from the first day of January, at noon, until the first day of January, which will be in the year one thousand eight hundred and forty-eight, at noon, the sum of three hundred dollars, on his interest in a two-story wooden bam, on Mill street, situated in Dorchester, in the county of Norfolk, occupied as a stable, by John Murphy; being not more than the actual value of said property, as appears by the proposal of the said insured, lodged with the secretary of this company. This company hereby express their intention to rely upon a lien upon the property hereby insured, to secure the payment of the assessments that may be made according to the bylaws and the act of incorporation.”</p> <p>By the mortgage referred to, John Murphy conveyed to the plaintiff the land on which the barn in question stood, with all the buildings thereon, to secure the payment of a promissory note for the sum of $400.</p> <p>The case was argued at November term, 1849.</p>

<p>A discharge, under the English bankrupt law, of a merchant residing in England, from a debt to a citizen of Massachusetts, contracted and payable in England, is a bar to a subsequent action on the debt in this state; whether the creditor proved his debt under the English commission of bankruptcy or not.</p>

<p>P., the purchaser of one half of a brig, gave W., the seller, his notes for a certain amount of the purchase money, and also a bond, reciting that said amount was to run on bottomry on the said half of the brig, and conditioned to pay the notes at maturity, and stipulating that P. should keep the half of the brig insured, and that, on P.’s failure to pay the notes, W. might sell said half at public auction for payment of the notes and expenses, accounting to P. for any surplus ; and P., by the same instrument, appointed W. his attorney, to convey said half to the purchaser at such sale. It was held, that this instrument did not create an equitable lien upon the brig, nor declare a trust which could be enforced as against a subsequent purchaser from P., with or without notice.</p>

<p>Bv the colony ordinance of 1647, commonly known as the ordinance of 1641, the proprietors of upland bounding on the sfea have an estate in fee in the adjoining flats above low water mark and within one hundred rods of the upland, with full power to erect wharves and other buildings thereon; subject, however, to the reasonable use of other individual proprietors and of the public for the purposes of navigation; and subject, also, to such restraints and limitations of the proprietors’ use of them, as the legislature may see fit to impose for the preservation and protection of public and private rights.</p> <p>The legislature of this commonwealth has power to establish lines in the harbor of Boston, beyond which no wharf shall be extended or maintained, and to declare any wharf, extended or maintained beyond such lines, a public nuisance; and statutes establishing such lines take away the right of the proprietors of flats in the harbor beyond the lines to build wharves thereon, even when they would be no actual injury to navigation; and such statutes, although they provide for no compensation to such proprietors, are not unconstitutional, as taking private property and appropriating it to public uses without compensation, within the meaning of the Declaration of Bights, art. 10; nor as impairing the obligation of the grant made by the colony ordinance, and thus transgressing the prohibition of the constitution of the United States, art. 1, § 10, against passing laws impairing the obligation of contracts. But such statutes do not affect the right to maintain wharves erected before their passage.</p>

<p>In this case, which was argued and decided at the last November term, the facts appear in the opinion of‘the court.</p>

This was an action of assumpsit by the indorsee against the promisor on a note of which the following is a copy: “ $250. Boston, Feb. 9, 1848. Six months after date, I promise to pay to the order of New England Steam & Gas Pipe Co., two hundred and fifty dollars, value received. Lemuel Lyon.” On the back of the note was the name of the defendant, and underneath it the name of James Derby.

<p>In this action, which was assumpsit, brought by the plaintiff, residing in Boston, against the defendant, a resident of Brunswick, in the State of Maine, no service of the writ was made, otherwise than by an attachment of the barque Sarah Ann, then lying in Boston, as the property of the defendant.</p> <p>The defendant pleaded in abatement, that, at the time of the pretended service of the writ, he had no right, title, interest or property in said barque. And the plaintiff joined issue on this plea.</p> <p>On the trial of this issue in the court of common pleas, certain evidence, offered by the defendant, was objected to by the plaintiff as incompetent, but .admitted by the judge; and the jury, under his instructions, found a verdict for the defendant; whereupon the plaintiff alleged exceptions to the rulings and instructions of the judge.</p> <p>The defendant now moved that the exceptions be dismissed, on the ground that by St. 1840, c. 87, the judgment of the court of common pleas on a plea in abatement is final, and that therefore no exception would lie in this case.</p> <p>The case was argued and decided at the last November term.</p>

<p>This was an action of debt on a bond in the penal sum of sixty five thousand dollars, executed by the defendant, Capon, as principal, and the other defendant, William M. Otis, as .surety, to the plaintiffs, on the 16th of August, 1847, the condition of which was as follows;</p> <p>“ Whereas the said Otis, as master of the ship Georgia, and having her under his command, has lately, to wit, on the 15th day of August, arrived at the city of Boston, from Liverpool, having with him as passengers on board of said ship, the following persons, who have no legal settlement in the commonwealth of Massachusetts, to wit:” (here the names of sixty-five persons are enumerated,) “which said passengers have been landed, and now reside in said Boston, and whereas, in the opinion of the overseers of the poor of said city of Boston, the said passengers are liable to become chargeable for their support to the said commonwealth, of which the said Otis has been duly notified by the mayor of said city: Now if the above bounden Capen shall well and truly indemnify and save harmless the said city, as also the said commonwealth, from all manner of charge and expense which may arise from said passengers, each and every of them, for and during the term of ten years, then this obligation to be null and void, otherwise to be and remain in full force and virtue.”</p> <p>At the trial, which was in this court, before Fletcher, J., it was in evidence, that the persons named in the condition of the bond, were landed from the ship Georgia, at Deer Island, in the harbor of Boston, being sick and destitute, and were there for sundry periods of time, and became a charge upon, and were supported by the plaintiffs. One of these persons was discharged as cured, and went up to the city for employment, but subsequently returned, being unable to find employment.</p> <p>Jotham B. Monroe, the superintendent of alien passengers for the port of Boston, called as a witness for the plaintiffs, testified that on the arrival of the ship Georgia at the quarantine ground, near Deer Island, he went on board and introduced himself to the master, as the person appointed by the city authorities, under the act of 1837, c. 238, to examine passengers, and gave the master a copy of the act; that having mustered and examined ■ the passengers, he informed the master, that there was a certain number, for whom two dollars a head must be paid, and that for the residue, being paupers, a bond must be given. The master answered, that his owner, the defendant Capen, would meet all the necessary demands. The superintendent then stated to the master that, by the quarantine regulations, the ship could not go to town until the port physician had given a certificate that she was thoroughly cleansed, and suggested to him the privilege of having those of his passengers, who were not diseased, landed at the Island Point. Those who were sick were placed in the hospital, and the ship cleansed at once. The superintendent told the master, that the expense of landing these passengers, and sending them up to the city, would, be $100. The master chose to consult the owner, who subsequently agreed with the superintendent, that the latter should land all the passengers on the island, so that the vessel might be cleansed at once, and to pay the expense, as above, which he subsequently did. He also paid the head money on those passengers designated by the superintendent. No bond was required in those cases where head money was paid. The passengers were all landed before the bond was delivered to the witness. The witness further stated,‘that he had never refused to land passengers until a bond was given ; that, in taking the bond in suit, he acted as the superintendent of alien passengers, under the law above referred to; that he alone acted for the city; that he filled up the bond and saw the master execute it; and that it was his impression, that the master took it to the owner, who executed it and brought it to him.</p> <p>Upon these facts, it was agreed that the case should be submitted to the court, who were to enter such judgment, as the law should require, or direct the case to be tried by a jury, if they should think proper; and if the judgment should be for the plaintiffs, to appoint an assessor to ascertain the amount for which it should be rendered.</p>

<p>If a party, with full knowledge of the facts, voluntarily pays a demand unjustly-made on him, and attempted to be enforced by legal proceedings, he cannot recover back the money, as paid by compulsion, unless there is fraud in the party enforcing the claim, and a knowledge on his part that the claim is unjust; although the party paying protests at the time that he is not answerable, and gives notice that he shall bring an action to recover the money back.</p> <p>A vessel arrived at Boston in 1847, with alien passengers on board; after the pas sengers were landed, the master refused to pay the head money, of two dollars for each of one hundred and forty passengers, demanded by the supérintendent of alien passengers, under the statute of 1837, c. 238, § 3, which had been decided by this court to be constitutional and valid; whereupon the overseers of the poor commenced a suit, (under Rev. Stat. c. 46, § 28, and St. 1837, c. 238, § 6,) against the owners of the vessel to recover the penalty of two hundred dollars for each passenger, and attached the vessel in the sum of thirty thousand dollars The owners thereupon paid the 'head money demanded, and costs, under protest, and with notice that they intended to sue to recover it back:The statute of 1837, c. 238, § 3, was afterwards decided by the supreme court of the United States to be unconstitutional and void. It was held, that the owners could not maintain an action to recover back the head money and costs so paid.</p>

<p>When, a deed of land, subject to a mortgage previously made by the grantor, expresses that the sum seemed by the mortgage is part of the consideration of the deed, and that the deed is made on condition that the grantee shall assume and pay the mortgage debt and the interest thereon, as they severally become due and payable; and the grantee enters upon and holds the estate, and does not pay the interest when it falls due; the grantor, after paying the interest on demand of the mortgagee, may maintain assumpsit against the grantee to recover the amount so paid.</p>

<p>It is not necessary to the validity of proceedings in insolvency, instituted on the petition of the debtor, that there should be a formal adjudication by the master in chancery, or commissioner, before issuing the warrant, of the debtor’s ina- ' hility to pay all his debts, of his willingness to assign all his property for the benefit of his creditors, or of the fact that the debts due from him amount to the sum required by the statute.</p> <p>On the trial of an action, brought by a mortgagee against the assignee in insolvency of his mortgagor, to recover the property mortgaged, in which the defendant undertakes to avoid the mortgage as being made for the purpose of giving an unlawful preference, the admission of the schedules of debts and other papers filed in the proceedings in insolvency, only as evidence that such proceedings were had, and not as evidence of the facts stated in the papers, is no ground for a new trial.</p> <p>On the trial of an action, brought against the assignee in insolvency of a mercantile firm, to recover property'mortgaged by them to the plaintiff, in which the defence is placed on the ground that the mortgage was made with the intention of giving an unlawful preference, and therefore void, the books of account of the firm, verified by the testimony ot ,.ne of the partners, as being in the handwriting of his copartner and of their bookkeeper, and as having been recognized and acted upon habitually by the firm as an authentic and true statement of all their mercantile concerns, are competent evidence for the defendant, for the purpose of showing that they were, and knew themselves to ^e, insolvent at the time of making the mortgage.</p> <p>On the trial of a cause, after one party had put in evidence certain books of account, supported by the testimony of the bookkeeper who kept them, the parties agreed to refer the books to an auditor, for the purpose of his stating the results of his examination, on the stand, to the jury, which he accordingly did. It was held, that the admission in evidence of the testimony of the auditor and his re port so made, on a subsequent trial of the same cause, after the books had been rightlj admitted in evidence, on other testimony than that of the bookkeeper, was no ground for a new trial, although the other party was thereby obliged to call the bookkeeper as his witness.</p> <p>A mortgage, made by a debtor, who is actually insolvent, and has no reasonable cause to believe himself solvent, to secure a debt to a preexisting creditor, who has reasonable cause to believe the debtor insolvent, is void, within St. 1841, c. 124, § 3, although the debtor at the time of making it sincerely believes himself solvent.</p> <p>Particular entries, in the books of account of a mercantile firm, offered in evidence for the purpose of showing their insolvency and their knowledge of their condition at the time of making a conveyance to a preexisting creditor, were objected to by the adverse party, solely on the ground that they were not original entries, nor proved by the clerk who made them. It was held, that the party could not, after the admission in evidence of the books, and a verdict against him, object, on a motion for a new trial, that the most important entries objected to at the trial appeared to have been made after the conveyance in question.</p>

<p>A traveller, who drives his horse and wagon on board a ferry-boat, pays the usual toll for their transportation, selects a place for himself, and retains the custody of his horse, without committing him to the care of the ferryman or his servants, or signifying any wish or purpose so to do, is bound to use ordinary care and diligence in the custody of his horse, to prevent the loss or injury of hi* property, by his horse talcing fright or becoming restless. If the traveller neglects his duty in this respect, leaving his horse without any oversight, and the horse becomes frightened at the sound of the bell of the boat, springs against the chain stretched across the end of the boat and attached to a hook, insufficient in strength for the purpose for which it is designed, breaks the hook, and throws himself and the wagon overboard, whereby the horse is drowned, and the merchandise in the wagon injured, without any fault on the part of the ferryman, when, by proper care and attention on the part of the traveller, the accident would not probably have occurred, the proprietors of the ferry are not responsible for the loss of the horse and the damage to the merchandise so occasioned.</p>

<p>A devise to an heir at law of exactly the same estate in land as he would take by descent without the devise is void, and the heir takes the land by descent.</p> <p>A testator devised land to certain trustees, “ in trust to pay over the net rents and income thereof to his son, C., during his life, and, on his decease, to convey in fee, and pay to his children, said houses and lots, or the proceeds thereof, in case they have been sold, and in default of such children, to convey and pay the same to his heirs at law; ” and authorized the trustees to sell, at their discretion, any of the land so devised to them; but no sale was ever made by them under this power, and C. died without issue. The personal estate of the testator was insufficient to pay debts and legacies. It was held, that the devise to the heirs at law of C. was not a specific devise, but that the land so devised was liable to be sold for the payment of debts and legacies, under the Rev. Sts. c. 71, § 20.</p>

<p>The measure of damages, in an action brought for a breach of an implied warranty of the genuineness of an article sold as opium, is the value of an article corresponding to the warranty, deducting the value, if any thing, of the article sold; and if the vendor has, in the mean time, sold the article with a like warranty, the sum paid on a judgment obtained against him, in an action brought by his vendee for a breach of that warranty, is prima fade evidence of the amount which he can recover of his vendor; and, if he gave notice to his vendor of the commencement of that action, he may also recover his taxable costs therein: but he can in no case recover counsel fees paid for the defence thereof.</p>

This was an action of covenant broken, brought on an instrument bearing date of the 22d of August, 1844, whereby the defendant, residing in Hillsboro’, in the county of Montgomery, and state of Illinois, covenanted to convey to the plaintiff, who resided in Boston, certain lands in Montgomery county, “ said conveyance to be made before the first day of January next.” The defendant pleaded the general issue.

<p>The by-laws of a mutual fire insurance company having provided, that any policy, issued by the company to cover property previously insured, should be void, unless the previous insurance should be expressed in the policy at the time it was issued; it was held that a policy, issued by the company, and made in terms sub ject to the conditions and limitations of the by-laws, in which policy a previous insurance on the property was not expressed, was void, even in the hands of an assignee without notice of the defect; although the insurers knew of the existence of such prior insurance, and of the intention of the assured that it should remain in force, and assented thereto; and although the policy was prepared by the insurers and delivered to the assured, as he supposed, pursuant to his said intention, without any knowledge on his part that the prior insurance was not mentioned therein; and although the amount insured by the policy, together with the amount of such prior insurance, did not exceed the value of the property insured.</p> <p>It seems that an order indorsed by the assured on a policy issued by a mutual insurance company, to “ pay the within in case of loss ” to a mortgagee of the property insured, and assented to by the company, will enable the mortgagee, in case of loss, to maintain an action on the policy in his own name.</p>

These were bills in equity, brought by the assignee in insolvency of Richard Saltonstall, in each of which the plaintiff averred that the said Richard made a promissory note payable to the defendant, who endorsed the same for his accomodation, and that he, knowing or believing himself to be insolvent, and in contemplation of petitioning for the benefit of the insolvent law, and for no legal consideration, conveyed certain real estate to the defendant, to secure the defendant…

<p>A creditor of an insolvent debtor, claiming a lien on certain property of the debtor, may apply to this court, exercising the chancery powers conferred by St. 1838, c. 163, § 18, to have such a lien declared in his favor, without first proving his debt against the debtor’s estate.</p> <p>G- and his associates, having been incorporated by act of the legislature as a manv factoring corporation, met and agreed to accept the act, and fixed the proportions in which the shares should be distributed, and also agreed that the corporation should purchase'certain lands of G., with the buildings and machinery thereon, then unfinished, but to be completed by G. The corporation was afterwards organized, and G. conveyed the lands to them ; but before he had finished the buildings, and machinery, or had paid all the instalments on his shares, and before any certificates had been issued to him, he became insolvent, and proceedings in insolvency were instituted. It was held that the corporation had no lien on the shares of G. for sums expended by them, before or after he became insolvent, in finishing said buildings and machinery.</p>

This was replevin for seventy two tons of pig iron. The defendants pleaded the general issue, and specified in defence a title in themselves under a mortgage from the West Boston Iron Company. At the trial in the court of common pleas, before Wells, C. J., the following facts were in evidence: Prior to May, 1848, Leonard Fuller and one Kendall owned and carried on at Boston a machine shop and an establishment for making iron castings.

<p>A grant of land, bounded “ on the sea or flats,” passes the flats appurtenant to the land granted.</p> <p>In construing a deed of land, bounded “ easterly on the sea or flats,” a lease for years, made to the grantee by a former proprietor, and continuing at the date of the deed, of a shop standing on the land conveyed, and bounded “ easterly on the sea or flats of the lessor,” if admissible in evidence, has no tendency to prove that the flats appurtenant to the upland were not included in the deed.</p>

This was an action of assumpsit, and was submitted to the court upon the following statement of facts: On the 22d of June, 1848, Henry G. Knights and William B. Jones, partners in trade under the firm of Knights & Jones, executed and delivered to the defendant a mortgage of certain personal property to secure the payment of certain notes, amounting to $2000, given by them to him, partly in consideration of their being indebted to him, and partly as security for such…

<p>An executor's bond, approved by the judge of probate, in which the sureties are each bound in half the sum in which the principal is bound, is not for that cause void, but is binding on the obligors, and sufficient to give effect to the executor’s appointment, and to render his acts as such valid; but it seems that this court, on an appeal from the decree of the judge of probate, approving a bond in that form, would not countenance such a departure from the usual course of proceeding.</p>

Joseph Valentine, by his will, after providing for the payment of all his just debts and charges, devised and bequeathed all the estate, real, personal and mixed, which he might leave at his decease, to his children and grandchildren, in various proportions, the share of one child to be under the control and direction of his executors thereinafter named.

This was an action of assumpsit on a promissory note for $47.34, dated October 17th, 1848, and on an account annexed for a quantity of butter sold, amounting to the same sum. At the trial in the court of common pleas, before Wells, C. J., it was in evidence for the plaintiff, that he sold the defendant butter, as stated in the account annexed, at the price therein mentioned, and it was admitted that the sale was made on a credit of either thirty or sixty days.

This was an action of covenant for rent reserved on alease for years, dated the 7th of July, 1847, and expressed in the following terms: “ I, Benjamin B. Mussey, of Boston,” &e., “ do hereby lease, demise and let unto Seth B. Scott, of said Boston, a certain brick dwelling house,” &c., “ to hold for the term of one year, from the said seventh day of July, yielding and paying therefor the rent of four hundred dollars per annum ; and the said lessee doth promise to pay the…

This was an action of debt on a judgment obtained in New York; and was tried in the court of common pleas, before Wells, C. J. The defendant pleaded the general issue, and specified in defence, that the original action, in which the judgment was rendered, was brought in the name of the plaintiff, on a draft accepted by the defendant, without consideration, and for the accommodation of Edmund Kimball, Jr., & Company, and that the judgment was rendered without any appearance…

The facts of this case, so far as they are necessary to the understanding of the points of law decided, sufficiently ap* pear in the opinion of the court. Written arguments were presented by G. W. Phillips, for the defendant, and J. B. Robb for the plaintiff.

This was assumpsit on a promissory note, signed by the defendant, payable to one Carley, and by him indorsed.

<p>Twelve persons, having associated theniselves together, according to the forms ana usages of the protestant episcopal church, for the purpose of establishing public worship under the ñamé of Mount Zion Church in Chelsea, and having after-wards organized themselves as a religious society under the Itev. Sts. c. 20, §§ 26, 27, 28,29, and, by means of subscriptions of members, and contributions from other sources, collected funds for the building of a church; subsequently, pursuant to to a vote of the society at a regular meeting called for the purpose, applied to the legislature, by a petition signed by all the members but one, who was absent from the state, for a change of name and an act of incorporation as the proprietors of St. Luke’s Church in Chelsea: The legislature passed an act accordingly, changing the name of the society, and incorporating three of the petitioners, with their associates and successors, as a religious society, with all the powers and privileges, and subject to all the duties, restrictions, and liabilities contained in the twentieth and forty fourth chapters of the Eev. Sts., and with power to hold real and personal estate, to be applied exclusively to parochial purposes: Certain members of the society, who had subscribed towards the building of the church, having had separate meetings before the passage of the act, continued to hold them afterwards, and organized themselves separately, under the act, as the proprietors of the church: The members of the society, also, including said subscribers, accepted the act and organized under it as a religious society; and each of the two bodies chose appropriate officers. It was held, that the act did not create a new corporation, composed of the proprietors of the church merely, but changed the name of Mount Zion Church in Chelsea, and incorporated the members thereof as a religious society, under the name of the proprietors of St. Luke’s Church in Chelsea.</p> <p>On the refusal of the treasurer or clerk of a religious society, whose term of office has expired, to deliver the records and papers of the society to his successor in office, a writ of mandamus will be issued, on the petition of the society, to com pel him to do so.</p>

<p>Since the Rev. Sts. c. 92, §§ 12, 13, one of several joint contractors, who by reason of his absence from the commonwealth is not served with process, in an action brought against them on the contract, cannot be rendered a competent witness for the others, by a release from them of his liability to contribute towards the payment of the debt, in case the plaintiff should recover against them, and they should be obliged to pay it.</p>

<p>This was an action of assumpsit, by the plaintiff, a citizen of Maine, residing in Portland, against the defendant, a citizen of Boston, to recover a balance of $83.91, for hay sold by the plaintiff to the defendant, at different times, from July to September, 1847. The defendant relied in defence upon a discharge in insolvency, obtained by him in May, 1848.</p> <p>It was in evidence for the defendant, that the hay was sold for cash to the defendant by one Field, a citizen of Boston, and that the bills were all made out in the name of Field, as the vendor.</p> <p>Field, being called as a witness for the plaintiff, testified, that he sold hay on commission for the plaintiff; and that he communicated to the defendant the fact, that he sold the hay in question on commission, for a person living in Maine, though he was not sure that he mentioned the name of the owner. There was also other evidence, that the defendant knew that Field was dealing on commission for a person in Maine.</p> <p>The defendant requested the presiding judge of the court of common pleas (Wells, C. J.) to instruct the jury that, where a principal resided abroad, the credit and the whole transaction were considered to subsist between the nominal contracting parties, unless there was an express agreement to the contrary; that, in the present case, as the plaintiff had his residence out of the state, he resided abroad within the meaning of the rule; and, therefore, that the discharge in insolvency of the defendant, which was good against Field, was equally so against the plaintiff, unless there had been an express agreement, (of which there was no evidence,) that the transaction was to be considered as a dealing between the plaintiff and the defendant.</p> <p>The judge declined so to instruct the jury, but instructed them that, if Field in fact sold the hay as the agent of the plaintiff, and communicated to the defendant, and the defendant believed, that he was selling on commission for a principal residing out of the state, the discharge was no bar; and that it was not material that the name of his principal should have been mentioned by Field to the defendant, nor was it material that the bills and transaction were wholly in the name of 'Field.</p> <p>The plaintiff having obtained a verdict, the defendant ex cepted.</p>

<p>This xvas an action of trespass quare clausum fregit, the writ containing also a count for an assault; and was tried in this court, before Fletcher, J., by whom it was reported in substance as follows:</p> <p>The premises in question, being part of a store on Commercial Street, were owned by the defendant, who, on the 1st of January, 1846, demised the store to one Gates, for five years, by an indenture containing a covenant, on the part of the lessee, not to underlet without the consent of the lessor in writing. Gates, afterwards, without such consent, underlet the lower floor and cellar of the premises, by a lease containing a similar covenant, to one Eldredge, from whom, by successive assignments, it came to William M. Hatstat and Company. Gates occupied the residue of the premises until dispossessed thereof in the manner hereinafter mentioned. Hatstat and Company transferred their lease to one Staniels, who was in the possession of the store at the time of the alleged trespass, and gave the plaintiff a verbal permission to remain in the cellar, paying rent to him therefor.</p> <p>The defendant gave in evidence a certified copy of a judgment of the justices’ court for this county, rendered in his favor, on the 19th of January, 1848, against said Gates and Staniels, and one Knight, for possession of the store leased by him to Gates. Under the execution issued on this judgment, an officer took possession of the premises, delivered the same to the defendant, and on the 25th of January, 1848, returned his doings on the execution. The officer also notified the plaintiff that he must remove forthwith, or he would be put out.</p> <p>The plaintiff’s property was removed from the cellar, on the 29th of January, 1848, in the night time, and in the absence of all persons from the store, and when he came there on the morning of the 30th, he found the cellar door barred against him, and attempted to break in with a hammer, but was restrained by Gates and a policeman, who used no more force than was necessary for the purpose. The acts done in removing the .plaintiff’s goods, and in preventing him from breaking into the premises, were done by the orders and under the direction of the defendant.</p> <p>Upon this evidence, the presiding judge ruled, that the plaintiff could not maintain trespass quare clausum; and that as it appeared, that no more force was used than was necessary to prevent the plaintiff from breaking the door, the defendant was entitled to a verdict, on the count for an assault. The jury thereupon returned a verdict on both counts for the defendant. If the ruling was wrong, the verdict was to be set aside and a new trial granted; otherwise judgment was to be rendered on the verdict.</p>

<p>It is no ground for setting aside an award, that the arbitrators did not examine the witnesses under oath; especially when no objection was made at the time to the manner of examination.</p> <p>Arbitrators, who are authorized by the submission to inquire into all matters arising out of the trade and dealing of the parties, without restriction as to time, may go behind a receipt given by one of the parties to the other, and look into the settlement on which the receipt was founded.</p> <p>A submission to arbitrators having provided, that the award to be made up by the arbitrators, or by a majority of them, should be final and binding upon both parties; two of the arbitrators, at a regular meeting for the purpose, at which all three were present, agreed upon an award, which was then drawn up and signed by one of them; the other took time to deliberate, and afterwards signed it; but the third refused to agree to the award, and never signed it. It was held, that the award was valid.</p> <p>Arbitrators have no power to award costs, unless authorized by the submission. When arbitrators, not authorized by the submission to award costs, make an award that one party pay the other a certain sum of money, and an additional amount for costs of arbitration, the part awarding costs may be rejected, and the remainder stand good.</p>

This was an action of assumpsit. The defendant filed in set-off a promissory note for $100, payable to Chandler & Maine, or their order, signed by the plaintiff, and indorsed “ Chandler & Maine to Wingate,” underneath which indorsement appeared the name of “ Andrew T. Wingate,” erased.

<p>This was a petition for the assessment of damages alleged to have been done to the plaintiff in his property, by the discontinuance of a portion of Market Street in the city of Boston, by order of the mayor and aldermen. The trial was before Bigelow, J., in the court of common pleas.</p> <p>The discontinuance complained of was of that part of Market Street covered by the tracks of the Boston and Maine Extension Railroad, the proprietors of which had been permitted by their charter to extend their road through part of the city. The petitioner owned several lots on and near Market Street, and offered to prove that the value of each had been lessened, and the rent of one or more of them diminished ; but it appeared that no one of the parcels bounded on that part of the street which had been discontinued, and that all were accessible by other public streets. The presiding judge ruled, that the petitioner was not by law entitled to prove and recover any damages, because neither of his estates abutted on that part of Market Street, which was discontinued ; and, by his direction, a verdict was entered for thz respondents; whereupon the petitioner excepted to this ruling.</p>

This was an appeal from the judgment of the court of common pleas, discharging James W. Pierce, the alleged trustee, upon his answers, which were substantially as follows: Prior to the service of the writ, the plaintiff complained against the defendant in the police court of the city of Boston, for larceny, by stealing a note of hand, alleged to have been delivered to him for the purpose of getting it discounted.

<p>The certificate of two justices, in the form prescribed by the Rev. Sts. c. 98, § 10, upon administering the poor debtor’s oath, stating that the debtor had caused the creditor, at whose suit he is confined, to be notified according to law, is not conclusive of the regularity of the notice.</p> <p>The provision of St. 1848, c. 286, § 1, that when a debtor “ shall have given to the creditor notice of his intention to take the benefit of the law for the relief of poor debtors, no new notice of the same intention shall be given, until the expiration of seven days from the service of the former notice,” applies to a case, where the first notice is defective and insufficient. [But see St. 1850, c. 212.]</p>

This was an action of debt on a bond for the prison limits, in usual form, and came up by appeal from the court of common pleas, after a judgment for the defendant in that court on an agreed statement of facts. The defence relied on was a discharge within the ninety days limited by the condition, by taking the poor debtors’ oath, which was duly certified to the jailer.

In this case, which was argued by H. C. Hutchins, for the plaintiff, and G. Minot, for the defendants, the facts are stated in the opinion, which was delivered at March term, 1852.

<p>A bill of sale, containing an inventory of the articles, and adding, “ said property being subject to ” certain mortgages specified, is a bill of sale of all the property in the inventory, although some of the articles are not covered by the mortgages ; and cannot be controlled by parol evidence, that the words, describing the property as being subject to mortgage, were added for the purpose of limiting it to the mortgaged articles. And such bill of sale, when delivered to the vendee, with notice to the person in whose hands the property is, passes the title to all the property, although the vendor, at the time of such notice, delivers the mortgaged property only to the vendee, and declares that he delivers no other.</p> <p>In an action to recover property included in a bill of sale purporting to be executed by the plaintiff to the defendant, an instruction given by the court to the jury, “ that, if they should find that the parties had deliberately reduced their contract to writing by the bill of sale, and had therein specified the property in question in such terms as imported a legal conveyance of the same, and there was no uncertainty as to the subject matters intended to be conveyed, parol evidence of conversations between the parties should not be regarded by them to contradict or vary the written conveyance,” is not open to exception, as leaving questions of law to the jury.</p>

<p>Where a person, who is liable to be taxed in a city or town for any real estate, is overtaxed by the assessors, whether the excess is caused by too high a valuation of real estate for which he is liable to be assessed, or by including in the valuation estates for which he is not liable, his only remedy is by application to the assessors for an abatement.</p>

<p>A by-law of the city of Boston, providing that the expense of constructing a common sewer, after deducting the portion to be paid by the city, shall be assessed upon the persons and estates deriving benefit therefrom, either by the entry of their particular drains thereon, or by any more remote means, apportioning the assessment according to the value of the lands thus benefited, independently of any buildings or improvements thereon, is valid. And it is no objection to the validity of an assessment, made pursuant to such by-law, that the greater part of one lot assessed is lower than the bottom of the sewer.</p>

<p>Courts of record have power, at any time, as well after, as during the term, at which any entry is made, of their own motion or on the suggestion of any party interested, and without notice to any one, to correct the mistakes and supply the omissions of their clerks or recording officers, so as to make the record conform to the truth of the case; and are the exclusive judges of the necessity and propriety of so amending and extending their records, and of the proofs and of the sufficiency of the proofs on which to proceed.</p>

<p>When it appears, from a petition for a writ of habeas carpus, that the petitioner, it brought before the court, would not be entitled to a discharge, the writ will not be issued.</p> <p>How far it is competent for one court, by a writ of habeas corpus to the executive officer of another court, to take a prisoner from the custody of the latter, quaere.</p> <p>Congress has power, under the constitution of the United States, to pass laws fot the reclamation of fugitive slaves.</p> <p>The act of congress of 1850, c. 60, concerning fugitives from service, being substantially like the act of congress of 1793, c. 7, the constitutionality of which has been settled by the decisions of the courts of the United States, must be deemed constitutional by this court. The authority which it confers on commissioners of the circuit courts, and its making no provision for a trial by jury, do not make it unconstitutional.</p>

<p>In an action on the case against the owners of a vessel, for the loss of certain packages of glassware, by reason of negligence in stowing and conveying them; after proof of the place and manner of the loss of the vessel, and evidence on the questions, whether the goods were stowed under deck, and whether they could have been washed out by the sea, if they had been so stowed; a witness acquainted with the navigation about the place of the loss of the vessel, and who was near the place at the time of the loss, cannot be asked whether, taking into view the condition and situation of the vessel, and all the accompanying circumstances, the goods could, in his opinion, have been broken to pieces in the hold, or washed out of the hold, if they had been stowed therein</p>

This was an action of trespass on the case. The declaration contained two counts, the first of which stated that the plaintiffs, on the 16th of January, 1849, and ever since, had purchased for a valuable consideration, and were possessed of the sole and exclusive right and privilege of representing and acting for Paran Stevens, the lessee of the hotel or public house in Boston, known as the Revere House, at the station of the Boston and Worcester railroad company in Boston,…

<p>The sureties on a bond, given to dissolve an attachment, conditioned for the payment within thirty days after final judgment of such amount as the plaintiff shall recover, are not discharged, nor the obligee’s right of action against them suspended, by th.e commitment of the defendant on execution, after breach of the condition of the bond ; and if the defendant be afterwards discharged on taking the poor debtors’ oath, the obligee will be entitled, in an action on the bond, to judgment and execution for the amount recovered in the action in which the attachment was made.</p>

<p>This was an action of assumpsit to recover the rent of a shop, formerly numbered 415, on Washington Street, in Boston, from the 1st of October, 1847, to the 17th of March, 1848; certain repairs made by the plaintiff on said shop during that time ; and the taxes assessed thereon on the 1st of May, 1847. The parties agreed upon the following statement of facts, reserving to both parties the right to object to the giving of any such facts in evidence: The plaintiff leased, said shop by indenture of two parts, for the term of three years from the 17th of March, 1845, to Henry F. Parmelee, who covenanted, among other things, to pay the rent and taxes to the plaintiff during said term. The lease was never cancelled, nor the lessee released from the obligations created thereby, unless the facts hereinafter stated constitute such cancellation and release.</p> <p>■ Parmelee entered upon the premises, and paid rent and taxes under the lease, until the 26th of September, 1846, on which day the defendant signed and delivered to Parmelee the following paper, not under seal: “ I hereby agree to take the lease of the store 415 Washington Street, and to pay to Gardner Brewer the rent as it becomes due, and the taxes, and to take the place of Henry F. Parmelee in all eases so far as the store, Parmelee and Brewer, are concerned. Boston, September 26, 1846. Eben. E. Dyer.” And thereupon Par-melee left the premises, and the defendant entered upon them, with the knowledge of the plaintiff, and without any dissent on his part, and continued in possession thereof until early in August, 1847, and paid the rent to the plaintiff according to the lease, until the 1st of October, 1847. The bills for rent paid by the defendant were made out to Parmelee.</p> <p>In August, 1847, the defendant left the premises, and tendered the keys to the plaintiff’s agent, who refused to receive them, and the shop remained vacant till the end of the lease; but repairs were made by the plaintiff’s agent in February and March, 1848. The paper above mentioned, signed by the defendant, came to the possession of the plaintiff or his agent, on or about the 1st of July, 1848.</p> <p>The case was submitted to the court of common pleas upon the foregoing facts, with the agreement that the court might draw all inferences therefrom that a jury would be jus-, tified in drawing, but reserving to both parties the right to object to the giving of any of such facts in evidence. That court gave judgment for the plaintiff, and the defendant appealed.</p>

<p>Under St. 1844, c. 178, § 4, the dissent of a majority in value of the creditors of an insolvent debtor, who have proved their claims, must be filed within six months after the assignment, in order to defeat his discharge.</p> <p>No discharge in insolvency is valid, even as against a creditor who proves his claim, and is himself the assignee, unless the third meeting of the creditors is held within six months from the time of the assignee’s appointment.</p>

<p>The notice, required by the Rev. Sts. c. 60, § 26, for the determination of an estate at will, when the rent reserved is payable at periods of less than three month®, must not only be as long as the interval between the days of payment, but must terminate at the expiration of such an interval.</p> <p>The date of a notice to quit, given by a landlord to his tenant, cannot he presumed, in the absence of «ither evidence, to be one of the days on which rent was payable.</p>

<p>This was an action of trover, by the administrator of the estate of David Pease, to recover the value of a trunk and its contents, including, among other things, several hundred dollars in money. .</p> <p>At the trial before Metcalf, J., at Nantucket, there, was evidence that the trunk and its contents were the property of the plaintiff’s intestate, who left the same in the care of his nephew, Joseph Pease, early in the month of April, 1849; that on the 28th of April, the intestate was suddenly taken sick, and died on the 2d ór 3d of May following; that on Sunday, the 29th of April, the intestate sent for the defendant, and requested him to go to Joseph Pease and get the trunk, and carry it to the defendant’s house, and then come back to the intestate, and he would tell him what to do with it; that the defendant did as the intestate had requested, and, when he came back, told the intestate that he had so done; and that the intestate then told him that he gave the trunk and its ' contents to him, to do as he pleased therewith ; saying that his daughter, who was his sole heir at law, and her husband, Henry Cottle, had used him in such a manner, that he did not intend that they should have any thing that he might leave. There was evidence, also, that the plaintiff had demanded of the defendant the trunk and its contents before this action was commenced, and that the defendant had refused to deliver them. The principal question, to which the testimony was directed, was, whether the intestate, at the time of the alleged gift to the defendant, was of competent capacity to make a valid gift.</p> <p>After nearly all the testimony had been introduced, the plaintiff’s counsel suggested, that the estate of the intestate had been represented to be insolvent; that commissioners had been appointed to examine the claims of creditors against his estate; that they had made their report to the judge of probate, with a list of the claims allowed by them; which report had been accepted and confirmed, and that the amount of such claims exceeded the amount of the intestate’s assets, including the trunk and its contents.</p> <p>The presiding judge thereupon inquired of the defendant’s counsel, whether he admitted these facts; and be admitted that the records of the probate court showed, that the suggestions were true, and that all the proceedings of the commissioners, and of the probate court, in the matter of the intestate’s insolvency, were conformable to the sixty eighth chapter of the revised statutes. But the counsel further stated, that the only claim, allowed against the estate by the commissioners, was an account of $761.74, in favor of Henry Cottle, the intestate’s son in law; and that no person appeared before the commissioners to oppose the allowance of this claim. The defendant’s counsel offered to prove, that, at the time of the intestate’s decease, he was not indebted to Cottle, and that the claim, which was allowed, was fraudulently set up, and was procured to be allowed by false testimony or representation, for the purpose of avoiding the effect of the alleged gift to the defendant.</p> <p>The judge expressed an opinion, that it was too late for the defendant to deny or question the validity of the allowance of the claim, and that it was unnecessary for the plaintiff to show the incapacity of the intestate to make a gift to the defendant; as the gift would not be valid against the intes • tate’s creditors. But, at the. request of both parties, the trial proceeded; and the evidence as to the fact of the testator’s giving the trunk and its contents, and his capacity to give them, was submitted to the jury, with instructions, that if they should find that the intestate did give the trunk and its contents to the defendant, in view of approaching death, and was of sufficient capacity to make the gift, their verdict should be for the defendant, subject to the opinion of the whole court upon the other questions in the case; otherwise, that their verdict should be for the plaintiff. The jury were unable to agree,on a verdict, and the case was taken from them, under an agreement of the parties, that if, in the opinion of the whole court, the defendant could be permitted to contest the allowance, by the commissioners, of the aforesaid claim against the intestate’s estate, and if the insolvency of the intestate’s estate did not affect the validity of the alleged gift, a new trial should be granted, unless the gift should be held by the whole court to be void, because made, if at all, on Sunday; otherwise, that the defendant should be defaulted, and the damages be settled by an assessor, to be appointed by the court, if the parties should not agree upon the damages, or upon an assessor.</p>

<p>These were actions of trespass de bonis asportatis, for taking and carrying away certain animals, (mostly sheep,) belonging respectively to the several plaintiffs. The defendants were field-drivers of the town of Nantucket, and justified the acts alleged against them, on the ground that the animals, described in the several writs, were going at large on the highways in Nantucket, contrary to law. The cases were all tried in the court of common pleas, before Hoar, J.; and verdicts being rendered therein for the plaintiffs, the several defendants alleged exceptions.</p> <p>The first action was for taking and carrying away a bay mare on the 13th of June, 1848; and it was in evidence that the plaintiff" was the owner of the mare, and that she was taken up, while going at large on the highways in Nantucket, and not under the care of a keeper, by the defendants, as field-drivers, and by them impounded in the town pound. The mare, while on the way to the pound with other horses, was seen and recognized by the plaintiff’s son, who, without pointing her out, offered to take her then, and pay the fees, if the defendants would give him a receipt. The defendants offered to give up the mare, but declined giving a receipt, on the ground, that the time and place were inconvenient for the purpose; and the mare was thereupon driven to the pound, and afterwards sold. An advertisement of the taking and impounding was inserted in the Nantucket Inquirer, a newspaper published in Nantucket, on Thursday, the 22d of June, and for three weeks successively thereafter, the last publication being on Thursday, the 12th of July, 1848. Application for the appointment of appraisers was made, and the appraisement took place on the same 12th of July. The sale was made on the 15th of the same month, having been previously advertised in the same newspaper. A notice of the taking and impounding of ten or more horses, among which was the mare in question, was also posted up in some public place in Nantucket, on some day between the 10th and 16th of June, 1848; but the notice contained no description of the animals. It was also in evidence, that after the making of the writ in this action, the plaintiff declared, “ that his son was present when the mare was taken, and that the field-drivers had returned that they had taken up the mare on the highway at the north crossing of Long Pond, but there was no highway there, and that they had got to prove.”</p> <p>The defendants contended, and requested the presiding judge to instruct the jury that, upon the foregoing facts, the plaintiff’s only remedy was by an action of replevin ; that if the plaintiff, at any time previous to the sale, had notice of the impounding, and of the cause of it, no other notice was necessary; that no subsequent irregularities or omissions would make the defendants trespassers; and that the plaintiff, by making the declaration, “ that the field-drivers had returned that they had taken up the mare at the north crossing of Long Pond, but there was no highway there, and that they had got to prove,” had waived all such irregularities and omissions, if there were any. The presiding judge declined so to instruct the jury, but did instruct them, that if the value of the. mare exceeded §30, the sale took place too soon; that if her value was less than §30, too late; and that the sale was illegal, and a fatal objection to the defence.</p> <p>In the other cases, some one or more of the points above stated were taken and relied upon by the defendants, and overruled by the presiding judge.</p> <p>In the cases of Folger v. Easton, and Gardner v. Easton, it appeared that the plaintiff, after the taking and impounding of his sheep, went to the pound and took them out, first paying the pound-keeper’s and field-driver’s fees. The defendants thereupon contended, and requested the judge to instruct the jury, that such payment and taking away constituted an abandonment or waiver by the plaintiff of any right of action. But the judge ruled otherwise.</p> <p>The cases were argued in writing.</p>

<p>A bill ip equity brought by one claiming an estate in three undivided fourths of the mines in a certain tract of land, with the right to pass and repass, to dig for • and carry away the ores, against the owner in fee of the whole of the soE of said tract, for digging and carrying away ore, and wasting and destroying the same, and forcibly resisting and disturbing the plaintiff in the exercise of his rights, is not within the equity jurisdiction of this court, either on the ground of a nuisance by a disturbance of the use of a right of way, or as showing the parties to be tenants in common of the mines.</p> <p>In a conveyance by one tenant in common of bis estate in the land held in common, a reservation of his interest in the mines in and upon the land granted is void.</p>

This was an action of assumpsit for goods sold and delivered, and on the common money counts, to recover the balance of the price of a quantity of hemlock bark, alleged to have been sold and delivered by the plaintiff to the, de - fendant; and was referred by rule of court to an arbitrator, who made an award in favor of the plaintiff, subject to the opinion of the court on the questions of law arising in the case, as appearing on the following report: The plaintiff alleged…

<p>Certain Indians, in a grant of land, made a reservation of a tract, bounded north on a line some miles in length, “ running a due west course ” from a given point In a controversy, arising more than a hundred years after, between parties owning land on different sides of the Indian line, it was held, that, evidence of general tradition and reputation, and of the understanding and occupation of the owners of lands bounding on the line, and of deeds made by them, and acts of the legislature referring to the line, would warrant the jury in inferring that a line, varying some degrees from a due west course, was located, laid out, assented to and adopted by the parties; and that, if the jury did so find, the line, so established, must be taken to be the trae Indian line.</p>

This was an action on the case for injury to the land of the plaintiff, situated on the south side of the north branch of the Hoosac River, and bounded northerly on the line on the south bank of the stream where the land and water coincide, when the stream is at its usual, ordinary and natural height.

In this case, which was argued by I. Sumner and J. E. Field, for the demandants, and by W Porter and F. Chamberlain, for the tenant, the material facts are sufficiently stated in the opinion of the court, which was read at September term 1852, as drawn up by

<p>Where a party designedly absents himself from home, for the fraudulent purpose of avoiding a tender, he cannot object, that no tender was made.</p> <p>If A., the purchaser of real estate at a sale on execution, when B., a purchaser of the debtor’s right to redeem, attempts to make him a tender of the money due, is absent from home by necessity or other cause, and without any intention to evade a tender, and in consequence of such absence, and by the use of due diligence, B. is unable to find A., or any person authorized to act in his behalf, and is thereby prevented from making the tender seasonably, no forfeiture of the estate is thereby incurred; and, in such case, it is not necessary that there should be a precise and accurate count of the money, provided B. was prepared to make the tender; or that B. should offer the money to any one, or leave it where A could control it; or that A. should know that B. had the right to redeem from the sheriff’s sale, provided B., when he goes to make the tender, produces his deed, and declares that he stands in the place of the debtor.</p>

This was a petition for a certiorari to the county commissioners of Berkshire, to certify the record of their proceedings in the laying out and establishment of a highway in Monterey.

<p>This was an action of assumpsit to recover of the defendant, as a co-surety, one third of the amount of a promissory note, which the plaintiff had been obliged to pay. By this note the Ashuelot Manufacturing Company as principals, and Henry Marsh, Bushrod Buck, and Abel Whiting, as sureties, jointly and severally promised to pay Grenville D. Weston or order, five thousand dollars and interest annually; and the note was indorsed “ G. D. Weston, Henry Chamberlin, John Chamberlin.”</p> <p>At the trial in the court of common pleas, before Byington, J., the plaintiff offered, to prove that the parties, whose names appeared on the note as indorsers, agreed between themselves, at the request of the Ashuelot Manufacturing Company, and in order to enable them to obtain a loan of $5000 of one Willis, to indorse the note as co-sureties of said company, if Marsh, who was the agent of the company, would place certain securities in their hands for their joint benefit, and to indemnify them for their liability on the note; that the three indorsed the note at the same time; that the securities were deposited in the plaintiff’s hands, to be held by him for their common benefit; that it was the understanding and agreement of the indorsers, at the time of the indorsement, that they should be liable one to the other as co-sureties on the note, and that the defendant had since made admissions to that effect, and had collected some of the proceeds of said securities, and appropriated them to his own use, and had always stated and claimed that he and the plaintiff and Henry Chamberlin were each entitled to one third part of said securities.</p> <p>But the presiding judge, being of opinion that, as it appeared from the note that the plaintiff was first indorser thereon, the written contract was the proper evidence of the plaintiff’s relation to the defendant and the other indorser, and that it was incompetent for him to prove by parol evidence that, in point of fact, he indorsed the note as co-surety with the defendant, because the effect thereof would be, to vary and control a written instrument by parol evidence, rejected the evidence; whereupon a verdict was returned for the defendant, and the plaintiff alleged exceptions.</p>

This was a writ of scire facias against the defendant, as the trustee of Marsh Stills, and was submitted to the court upon the following statement of facts: John Stills, by his will, bequeathed thirty dollars to his son Marsh Stills, the principal defendant in the original suit, and one hundred dollars to his granddaughter Eliza Stills, payable in six years from his decease.

<p>A traveller on a highway, rendered impassable by a sudden and recent obstruction, may pass over the adjoining fields, so far as is necessary to avoid the obstruction, doing no unnecessary damage, without being guilty of a trespass.</p>

This was an action of assumpsit on the common counts. At the trial in the court of common pleas, before Byington, J., it appeared by the report of an auditor, to whom the case, had been referred, that the action was brought by the plaintiff, formerly the keeper of a hotel in North Adams, against the defendant, an engineer, for the board of himself and men, while surveying a route for a railroad.

<p>In this case, which was argued by E. Merwin, for the defendants, and by I Sumner, for the plaintiffs, on exceptions taken by the former to the rulings and instructions of Byington, J., at the trial in the court of common pleas, the facts suffi-5 ciently appear in the opinion of the court, which was read at the September term, 1852, as drawn up by</p>

<p>In this case, the officer’s return stated that, on the 3d of February, 1851, he summoned the Western Railroad Corporation, who were named in the writ as trustees of the principal defendant, “ by giving Seth W. Norton, agent for said corporation at Pittsfield, in hand, a true copy of the writ,” &c.</p> <p>The said alleged trustees moved the court that they might be discharged, on the grounds, that the summons was served only on one Green, a ticket clerk of the corporation at Pitts-field, and not on “ any officer having charge of their business,” within the meaning of the Rev. Sts. c. 90, § 43; that said Norton was the only agent of the corporation at Pittsfield having charge of their business; and that notice of this service did not reach any of their officers at Springfield, where their principal office, from which all payments to their servants were made, was located, until after they had paid to the principal defendant, who was a workman in their employ, the full amount of his goods, effects, and credits in their hands at the time of the service on Green; which payment they made on the 8th of February, 1851.</p>

<p>A release to a tenant in common from his co-tenants, of their interest in a specific part of the land held in common, confirms a conveyance previously made by him of that part of the land</p> <p>The first mortgagee of land may sell on execution, to satisfy the mortgage debt; the mortgagor’s right to redeem a second mortgage of the same land.</p>

<p>Where a son, at the suggestion and by the agency of his father, who was insolvent, purchased and gave his notes for a lot of land with timber growing thereon; and, by an agreement between the father and son, the father was to cut off and sell the timber, and to pay for the labor and other charges, out of the proceeds, and appropriate the balance towards payment of the notes given for the purchase money, and to pay any remaining surplus to the son ; it ivas held, that trees cut and lumber sawed under this agreement were the property of the son, who might maintain trespass against an officer for attaching the same as the property of the father, and recover damages to the full value of the property at the time of the trespass.</p>

This was an appeal from a decree of the judge of probate for this county, allowing the account of the respondent as administrator of the estate of Mason Gordon.

<p>A party, of whom a tax, illegally assessed, has been collected by distress, can recover of the town, in an action for money had and received, only the amount of the tax, with interest thereon from the time of the sale, and not the surplus value of the property sold, nor the costs of distress.</p>

<p>An auditor, appointed under the provisions of the Rev. Sts. c. 96, to hear the parties, examine their vouchers and evidence, state the accounts between them, and make report thereof to the court, is authorized to consider and determine whether a particular individual was the authorized agent of one of the parties, to purchase, on his behalf, the goods charged by the other in account against him.</p>

<p>A citizen of this state gave a note to the treasurer of the state of Connecticut for rent of land situate in this state, owned by that state, and leased to him by an agent of that state. It was held, in an action on the note, that the discharge of the maker, under the insolvent laws of this state, was not a bar to the action; the claim not having been proved under those laws.</p>

<p>Where personal property mortgaged was described as “ all the staves I have in Monterey, the same I had of Moses Fargo; ” and it appeared, in evidence, that the mortgagor had no staves in Monterey, but had a quantity in the adjoining town of Sandisfield, near the boundary of Monterey, which he had of Moses Fargo, it was held that the first part of the description might be rejected, as false, and that the remainder was sufficient to pass the property.</p> <p>If a mortgage of personal property is made as security for the payment, “ according to its tenor,” of a promissory note, payable at a day certain, which has passed, the condition must be understood <o be the payment of the note in" its then existing state.</p> <p>The owner of a quantity of staves made an agreement to sell and deliver them- and that when they were all delivered, the purchaser should give good security therefor; the purchaser, after delivery of a portion of the staves, and paymen of a portion of the purchase money, made a mortgage of all the staves. It was held, that the property in the staves did not vest in the purchaser, until the delivery was completed, and the security given; th(it the mortgage was therefore void, so far as respected the staves not then delivered; and that it was not rendered valid by the subsequent completion of the delivery and giving of security, as against attachments made still later by the creditors- of the original owner.</p> <p>It is no sufficient objection to the validity of a demand, made by a mortgagee of personal property, upon an officer attaching the same as the property of a mortgagor, that the demand is signed by attorney; or that it states a claim of title under a pledge, as well as under the mortgage.</p>

This was assumpsit on a promissory note. The defendant specified in defence, and proved, a discharge under the United States bankrupt act; to avoid the effect of which the plaintiff relied on a new promise, made since the discharge, to pay the note; and called a witness, who testified, that at the request of the plaintiff, he called on the defendant, and looked over with him the accounts between the parties; that he told the defendant that the plaintiff wanted him to do…

<p>This was an action of trespass quare elm-sum fregit. At the trial in the court of common pleas, before Byington, J., the plaintiffs, to prove their title, offered in evidence an original writ of entry sued out by them, describing themselves as the heirs and children of one Elijah M. Paddleford, deceased, against the defendant, on the 13th of June, 1843, to recover the same land described in the writ in the present action, and duly served on that day. On the back of said writ of entry the following agreement was indorsed: “ The tenant in this suit, Daniel Sturtevant, acknowledges the title in the within premises, in the demandants, and he gives up peaceable possession of the same to the demandants, and pays the writ and service of this suit, and the same is discontinued by agreement of parties. Pittsfield, Sept. 5, 1843.</p> <p>“ P. L. Hall, Attorney to demandants.</p> <p>“ Daniel Sturtevant.”</p> <p>The plaintiffs also introduced a witness, to prove that the plaintiffs in this case were the children and hens of Elijah M. Paddleford, deceased, who testified as follows: “ The defendant once spoke of one of the hens of Paddleford coming up to Savoy; he asked me if I was the agent of Paddleford’s heirs; I should think he talked a number of times about the heirs, but cannot tell the words.”</p> <p>The presiding judge ruled that the evidence introduced by the plaintiff was insufficient to prove the death of Elijah M. Paddleford, and that the plaintiffs were his heirs at law; and that from this evidence, the jury could not lawfully find the title to be in the plaintiffs. The plaintiffs thereupon abandoned this ground of recovery, and claimed to recover on the ground of possession. The evidence on this point was submitted to the jury, who found a verdict for the defendant</p> <p>Whereupon the plaintiffs excepted to the ruling of the judge on the insufficiency of the evidence to prove their title.</p>

<p>The father of an infant, interested in the estate of a deceased person, having himself no adverse interest therein, may petition the judge of probate, as the next friend of the infant, for leave to sue the administration bond.</p> <p>A devisee of real estate, having only a contingent estate therein, or a present interest, defeasible upon a condition subsequent, is not entitled to bring an action on the administration bond.</p> <p>Whether a devisee of real estate is a person interested in the estate of a deceased testator, and entitled as such to bring an action on the administration bond, within the provision of the Rev. Sts. c. 70, § 6, quaere.</p>

<p>This was an action on the case for a breach of the following agreement:</p> <p>"Berkshire, ss. July 12th, 1848. Received of William Hodskin, deputy sheriff, for safe keeping, the goods and chattels following, viz., [Here followed a description of the property,] of the value of two hundred dollars, which property the said officer has taken by virtue of a writ against W. W. Green, in favor of Charles Thompson et al., returnable at the August term of the court of common pleas for the county of Franklin, 1848; and, in consideration of one dollar, paid us by the above-named officer, the receipt whereof we do hereby acknowledge, we hereby promise and agree safely to keep and redeliver all the property above mentioned to the said officer, or his order, or to his successor in office, on demand, to be delivered at said Hodskin’s store, in Adams, in the like good order that the same is now in, free from all charge and expense to the above-named officer or the creditor aforesaid; and we agree that a demand on us shall be considered as binding on us; and we further agree, that if no demand be made upon us, we will, within thirty days from the rendition of judgment in the action aforesaid, redeliver all the above-described property, as aforesaid, that the same may be taken in execution. Thomas Cox, David Walley.”</p> <p>The case was submitted to the court of common pleas, and upon appeal to this court, upon the following statement of facts: The property attached was left in the possession of Green,. the defendant in that action, upon and by reason of the giving of the above receipt. No dollar was actually paid by the defendants to the plaintiff upon the giving of this receipt. Judgment was rendered in the action of Thompson v. Green, on the 25th of November, 1848, and execution issued thereon on the 4th of December, and was put into the hands of the plaintiff on the 6th, who was ready with the execution at all times afterwards, at his store in Adams, to receive the property in question upon the execution, and who, on the 29th of the same month, dem'anded the property of the defendants. On the 25th of said December, Green, on the peti* tion of his creditors, was declared insolvent, and a warrant issued against his estate, which, on the 27th of December, was delivered to a messenger, and served by him, by talcing possession .of all Green’s property, and giving him notice. The first publication of notice was made on the 4th of January, 1849. The plaintiff had notice of the warrant before bringing this action. If the court are of opinion that the plaintiff can recover, judgment is to be rendered for the amount of the judgment recovered against Green, and costs; if otherwise, for the defendants.</p>

<p>An indictment for a conspiracy alleged that the defendants, on the 5th of Janu ary, 1850, conspired to defraud the H. insurance company, by removing and secreting the goods belonging tó one of the defendants, and insured by said company, and then pretending that they had been destroyed by fire. The evidence was, that the policy was issued on the 2d of January, 1850; that the goods were removed on the 5th; that the shop from which they were removed was destroyed by fire on the 7th; and that the defendants had no knowledge of any insurance of the goods by the H. insurance company until after the fire. It was held, that this evidence did not support the allegation in the indictment.</p>

<p>The prudential committee man of a school district, chosen by the district, pursuant to a vote of the town, is not liable to the district for money, received by him out of the treasury of the town, which had been raised by the town, and appropriated by it to the support of the school in such district, and placed to the credit of the district upon the town treasurer’s books.</p>

<p>This was an action of assumpsit on a promissory note, bearing date of January 16,1850, and payable to the defendant or his order, on demand.</p> <p>At the trial in the court of common pleas, before Hoar, J., the following facts appeared: The defendant on the 3d of February, 1850, transferred this note to Field & Leland, in payment of a debt, and wrote his name on the back of the note, with these words over it: “ I hereby guaranty the within note.” Field & Leland subsequently transferred the note to the plaintiff, and indorsed upon it, over their signature, these words: “ For value received pay to Henry S. Belcher at his own risk.” The defendant objected that the plaintiff could not maintain an action in his own name, on the defendant’s indorsement; that it showed a contract of guaranty with Field & Leland, and was not negotiable. But the court ruled that although the contract of guaranty was not negotiable, the effect of the transfer of the note from the defendant to Field & Leland with the indorsement upon it, was such as would have authorized Field & Leland, and would authorize the plaintiff to write over the indorsement the words “ pay to Field & Leland or their order; ” and the plaintiff was permitted by the court against the objection of the defendant, to write those words.</p> <p>The plaintiff having obtained a verdict, the defendant excepted to the above ruling.</p>

<p>The several trustees in this case having made answers, whereby it appeared that they had in their possession several sets of books known as “ Sears’s Pictorial Works,” Robert Sears, of New York, upon application to the court, was admitted as a party to the cause, and claimed the said books as his own property. The only question submitted to the jury at the trial, which was in the court of common pleas, before Hoar, J., was whether, at the time of the service of the writ on the trustees, these books were the property of Sears, or of the plaintiff. Sears contended that the books in question were delivered to the trustees, as agents accountable and responsible to him, and that they received the same to sell, and make remittances to him; and in support of this claim, he offered in evidence a contract in writing betweén himself and Benson, under which the books were delivered, of which the following is a copy:</p> <p>“ The following agreement between Robert Sears, of the city of New York, on the one part, and George W. Benson, of Northampton, Mass., of the other part, witnesseth: That the said Robert Sears, the party of the first part, agrees to furnish such good and responsible persons, as the said George W. Benson, the party of the second part, may designate or elect to act as agents for the sale of Sears’s Pictorial School Library, with said works at $13.50 per set of twelve volumes, to said Benson, supplying their orders and receiving their remittances, and placing all money so received above the amount of $13.50 as above specified, to the credit of said Benson, and at the close of the labors of the said agents, to receive all the books returned by them uninjured, and credit the same to said Benson, at the cost price above specified; and the said George W. Benson, the party of the second part, hereby guarantied to said Robert Sears, the security and full payment of the above named price of $13.50 per set of twelve volumes of the aforesaid work as may be delivered to all such persons as he, Benson, may appoint as agents, and to whom he may direct said books to be sent. It is further agreed between said parties, that settlements shall be made quarterly for all bills contracted by said Benson on his account. ”</p> <p>The plaintiff contended that the books delivered under this contract became the property of Benson, and the construction of the contract was the only question submitted to the court. The judge ruled, that under this contract, the books still remained the property of Sears; and under this ruling, the jury found a verdict for him; whereupon the plaintiff" excepted.</p>

<p>The parties, summoned as trustees of the principal defendant in this case, were the president, directors and company o{ the Holyoke Bank, and John Clarke, their president. The case was submitted to the court upon the answers of the said Clarke, which, it was agreed, should be taken also as the answers of the bank. He answered as follows:</p> <p>“ At the time of the service of the writ, there was in the vault of the Holyoke Bank, a small trunk, which had been left in the vault by Augustus Clarke; neither I nor any other officer of, the bank have known its contents, or had access to said contents. He merely requested the privilege of leaving it in the vault, whenever he has brought it there; and this privilege I have sometimes given, when I was present at the time; or, if I was not there, the cashier, or the clerk would give it. Neither the bank nor I personally took any responsibility of safely keeping said trunk; and the said Augustus Clarke usually himself put it in the vault and took it from thence. Said trunk was kept locked up with other property in the vault, whenever it was there at the usual time, of locking the vault. I can’t recollect how long he had been in the practice of leaving the trunk there ; he had done so for some time prior to the service of the writ. No person has access to the vault without permission of some one of the officers of the bank. And, as I have stated, Augustus Clarke acted, as I have no doubt, under a permission from myself, or the cashier or clerk in the bank, present at this particular time of leaving it. But I have no knowledge or recollection as to who was present or gave the permission at this particular time. I might have given it, the cashier 'might, or the clerk might; whenever such permission was given, it was given by either of us, rather as a neighbor, and as granting a neighborly favor, than as an officer of the bank, having any authority in behalf of the bank to grant such permission. This deposit did not differ from many, perhaps most, of the other deposits of trunks or valuables. We have often given a permission, such as was given to Augustus Clarke. I have not at any time known from said Clarke, or otherwise, any of the contents of said trunk, or of what the contents consisted.”</p>

<p>The statute of 1850, c. 5, providing that “if any person has heretofore received or suffered, or shall hereafter receive or suffer, any bodily injury,” &c. through any defect or want of repair in a highway or bridge, "he may recover in a special action of the case of the county, town or persons, who are by law obliged to repair the same, the amount of damages sustained thereby,” if they had reasonable notice, or if the defect had existed twenty iour hours ; and repealing Iiev. Sts. c. 25, § 22, saving actions, in which verdicts had been rendered when the statute of 1850 took effect; did not prevent the recovery of single damages against a town for an injury occasioned by such a defect or want of repair, in an action upon Rev. Sts. c. 25, § 22, which had been commenced, but in which no verdict had been rendered, when the statute of 1850 took effect.</p> <p>A town is not responsible for a defect or want of repair in a bridge, whereby a public highway passes over a railroad, the proprietors of which are bound by law to keep the bridge in repair.</p>

This was an action on the case to recover damages for an injury to the plaintiff, by reason of a defect in a highway in the town of Wendell.

<p>This was an action of assumpsit upon a promissory note. The defendants pleaded the general issue, and specified in defence a discharge of the suit by the plaintiff. At the trial in the court of common pleas, before Wells, C. J., the only evidence introduced by the defendants was a writing, signed by the plaintiff, in the following words: “ I hereby certify, that the suit now pending in the court of common pleas, in my name, against Charles Thompson & others, was commenced without my authority or consent, and I hereby discharge the same.” No notice was given of any objection to the right of the attorney for the plaintiff to appear, other than the filing of the above specification of defence. The presiding judge ruled, that the written paper did not, of itself, constitute a defence to the action. The jury, thereupon, returned a verdict for the plaintiff, and the defendants excepted.</p>

<p>Where the advertisement and notice of sale of real estate, for non-payment of 8 tax of three dollars and thirty cents, state the amount of the tax to be four dol lars and twelve cents, the sale is void.</p>

<p>The bill in equity, provided by St. 1849, c. 222, § 5, for enforcing the orders of county commissioners, respecting the manner of constructing a railroad where it crosses a public highway, can be maintained only by the mayor and aldermen of the city, or the selectmen of the town, within which the way is situated, and not by any individual inhabitant of such city or town, although he is owner in fee simple of the land over which the way is located.</p>

This was a complaint for an assault and battery, and was addressed “ to James W. Crooks, Esq., one of the justices of the peace within and for the county of Hampden.” Crooks administered the oath to the complainant, as “justice of the peace;” and issued a warrant, signed by himself, as “justice of the peace,” requiring the officers, to whom it was directed, to bring the defendant before “the subscriber, or some other justice of the peace within and for said county.” At the…

<p>The defendants were convicted in the court of common pleas for the county of Hampden, upon an indictment which alleged that William G. Shedd and Sarah Clough, wife of one Leonard N. Clough, on the 22d of January, 1851, “ at Chicopee, in the county aforesaid, being evil disposed persons, and wickedly devising and intending, not only to deprive one Joel Church of his good name, fame, credit and reputation, but also to defraud and prejudice the said Joel Church, then and there, with force and arms, did amongst themselves conspire, combine, confederate and agree together to cheat and defraud the said Joel Church of divers large sums of money;” and then proceeded to set forth the doing of certain overt acts by the defendants, in pursuance of this conspiracy.</p> <p>The defendant Shedd afterwards moved in arrest of judgment, because the offence charged in the indictment was not fully and properly set forth; which motion being overruled by the court, (Merrick, J., presiding,) he alleged exceptions.</p>

This was an action of assumpsit to recover damages for the breach of a written contract, set out in the first count of the declaration, in which the plaintiffs alleged, that the defendants agreed to furnish the plaintiffs with stock for the manufacture of twenty fifteen feet engine lathes, the castings and forgings for seven lathes in three weeks, and for the remaining thirteen within ninety days afterwards; and also promised that the planing of the ways should be done…

<p>A party, duly appointed under the laws of the late republic of Texas, “ to the succession ” of a person deceased there, is not accountable in this state for personal property held by him in that capacity.</p>

<p>S. conveyed land to H., describing it as bounded “ north on the line of Blandford ”; the line of the town of Blandford was subsequently established by act of the legislature ; after which H. conveyed to C. by a similar description. It was held, that the line so established was the northern boundary of the land included in the deed from H. to C.; and that parol evidence was inadmissible to show that, prior to this act of the legislature, the line of Blandford was understood and reputed to be farther north than the line so established, and was defined by a line of marked trees, and that the deed from H. to C. was intended and understood by the parties to convey the same land included in the deed from S. to H.</p>

This was a bill in equity, under the Rev. Sts. c. 81, § 8, to compel the delivery of a mare, detained from the plaintiff, and secreted so that she could not be replevied.

This was a petition for a writ of mandamus, in which the petitioners set forth that they, together with Mary Bliss, the wife of George Bliss, were all the heirs at law of Jonathan Dwight, deceased: That the respondents had located a certain road over certain land owned by the petitioners and Mary Bliss, as heirs at law of said Jonathan Dwight, as tenants in common, and had awarded five hundred dollars as damages in gross to the heirs of Jonathan Dwight: That the petitioners…

<p>An application, of a debtor committed to jail on execution, to be admitted to take the poor debtors’ oath, must, since St. 1844, e. 154, as well as under Rev. Sts. c. 98, be made to the jailer, and through him to a justice of the peace. And if such debtor, who has given bond for the prison limits, is admitted to take the oath on an application made by him directly to the justice, and thereupon goes without those limits, it is a breach of the bond.</p>

The first of these cases was an action of assumpsit to recover the amount of three promissory notes, signed by the defendant, dated the 21st of June, 1850, and payable, to the order of C. P. Bissell, the plaintiffs’ cashier; one for $2,000, and two for $1,500 each; and payable in four months, from the 19th of June, the 25th of June, and the 14th of July, 1850, respectively.

<p>The testimony of one of the subscribing witnesses to a deed is sufficient to prove its execution; unless the judge, in his discretion, requires the production of the others.</p> <p>When a witness is called to prove the signature of a deed, it is within the discretion of the presiding judge to allow the adverse party, who has not yet opened his case, to cross-examine the witness immediately, on the whole case, or to require him to wait and recall the witness, after having opened his case.</p> <p>The acts and declarations of one party are not competent evidence to affect anothei, unless it is first proved that both have been engaged in a common purpose and design; and whether the evidence is sufficient to establish the concert between them, or proper to be laid before the jury as tending to establish it, is within the discretion of the presiding judge, and not a ground of exception.</p>

This was an action by the plaintiff, as indorsee, on a promissory note, signed by Francis G. Post. The name of the defendant was indorsed on the note, under the name of the firm of Decreet, Boyington Si Company, of which the plaintiff was a member.

<p>A covenant to indemnify A. against all damages and costs which he may incur in consequence of indorsing any notes of B., past or prospective, relates only to indorsements made by A. for the accommodation and at the request of B., and does not extend to indorsements by A. of notes given him by B. for his own debts to him.</p>

<p>This was an action of assumpsit originally commenced on the 17th of January, 1849, returnable before a justice of the peace. The declaration contained the common money counts, and also a count for the use and occupation of a certain hall situate in Springfield, known as Hubbard’s Hall, according to the account annexed to the writ, which was as follows: “ Franklin Division, No. 28. To Asahel Hubbard, Dr. To Rent of Hall three months, from May 31 to August 31,1848. $12.50.</p> <p>At the trial before the justice, on the 5th of February, 1849, the defendants pleaded the general issue, and specified in defence a tender made by Badger, one of the defendants, on the first day of the same February, of six dollars and fifty cents, which they brought into court for the plaintiff and deposited in the hands of the justice, the plaintiff refusing to receive it. The justice gave judgment in favor of the plaintiff for the sum of twelve dollars and fifty cents, and costs; whereupon the defendant appealed to the court of common pleas.</p> <p>The case was tried in the court of common pleas on the pleadings made up before the justice. The plaintiff offered in evidence, for the purpose of showing the amount of the rent, a lease from the plaintiff to the officers of the Franklin Division, No. 28, of the Sons of Temperance, and their successors in office. The defendánt offered evidence, that just before the 1st of July, 1848, the plaintiff took possession of the ball, and continued in possession thereof in such a manner as to amount to an eviction of the lessees. To the admission of this evidence the plaintiff objected, contending that the only question open to the defendants upon the pleadings was the value of the rent for the three months claimed in the bill of particulars, and that every thing else necessary to be shown by the plaintiff had been admitted by the defendant.</p> <p>At this stage of the trial, the case was taken from the jury and submitted, upon the foregoing facts, to the court of common pleas, who gave judgment for the defendants; and the plaintiff appealed to this court.</p>

<p>If an action of replevin is dismissed for informality in the replevin bond, and judgment given for the defendant for a return, and the plaintiff returns the property to the place from whence he first took it, he may afterwards bring another action of replevin, for the same property, against the same defendant, although the defendant has not taken out a writ of return, noi: actually received the property under the judgment in the first action.</p>

<p>This was an action of trespass for an assault and battery and false imprisonment, and was tried in the court of common pleas. The defendants relied on the following facts as a defence to the action: On the 14th of July, 1850, a complaint was made before the defendant Packer, against the plaintiff, Stetson, for burning a school-house in Leyden; Packer being a justice of the peace, but not a trial justice, within and for the county of Franklin. Upon this complaint, Packer, as justice of the peace, issued a warrant, commanding Stetson to be brought “ before David Aiken, Esquire, of Greenfield, or some other justice of the peace, within and for said county, to answer to the same,” &c. • On the same day, Stetson was arrested under this warrant by the defendant Nash, with the assistance of the defendants Budington and Miller, and taken, to the jail in Greenfield, and there detained till the next day, when, David Aiken being absent from the town, Stetson was brought before Daniel Frost, of Orange, a trial justice within and for said county; and a nolle prosequi was then entered by the counsel for the government. At the time of the issuing of the warrant, and of the arrest and imprisonment of the plaintiff, David Aiken was a justice of the peace, and also a trial justice, wbhin and for the county of Franklin. Upon these facts, the jury, by the instructions of Wells, C. J., who presided at the trial, returned a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>C, by his last will appointed T. his sole executor, and authorized him to sell and convey such of C.’s property, as in T.’s judgment would promote the interest of all concerned, to raise a certain amount for the payment of debts and of certain legacies; and devised and bequeathed the residue of his property, subject to the rights and directions given to his executor, and subject to the payment of his debts: T. declined to act as executor, and an administrator of the estate of C. with the will annexed, was appointed: T. afterwards accepted the office of trustee under the will. It was held, that T. did not, by renouncing the office of executor, lose the power to sell as trustee under the will, and that sales and conveyances so made by him, after his acceptance of the trust, were valid as against C.’s residuary devisees and their heirs.</p>

<p>This was a writ of entry brought on the 19th of September, 1848, to recover three undivided eleventh parts of certain lands in Leicester. The defendants pleaded the general issue, and specified in defence a paramount title acquired since the commencement of the action.</p> <p>The case was submitted to the court upon an agreed statement, embracing the following facts: At the time of bringing this action, the tenants were in the actual possession of the demanded premises, as disseisors of the demandants, who were residuary devisees of Ephraim Copeland. The appointment, by Copeland in his will, of Jonas Tucker as executor thereof and trustee under the same, Tucker’s renunciation of the office of executor, the appointment of Dunbar as administrator, and Tucker’s acceptance of the office of trustee, were agreed as stated in the next preceding case of Clark v. Tainter. On the third of January, 1848, Dunbar, after public notice, undertook to sell at public auction and to convey to the tenants the demanded premises. On the 30th of December, 1848, Tucker, as trustee as aforesaid, without any public notice, or any notice to the demandants, sold the demanded premises, and executed a deed thereof, to the tenants, for a consideration equal to that obtained by Dunbar, adding interest. It was agreed that a judgment should be entered on nonsuit or default, according to the opinion of the court upon the foregoing facts; saving the question of costs.</p>

<p>A testator devised land to his executor T. in trust to sell such part thereof as in T.’s judgment would promote the interest of all concerned, for the pay ment of certain legacies and debts; T. declined to act as executor; an adminis trator with the will annexed was appointed, and, acting under the mistaken supposition that he was authorized by the will to sell, sold the land, and charged himself with the purchase money in his probate account; T. afterwards accepted the office of trustee under the will, and sold the land to the same purchaser for a sum equal to the consideration received by the administrator, adding interest from the date of that sale. It was held, that the administrator was entitled to be credited in his probate accounts with the sum with which he had so charged himself, and with any interest which had accrued to the estate on such sum.</p>

<p>This was an action of assumpsit on an account annexed tc the writ. At the trial in the court of common pleas, before Hoar, J., the defendant called Stephen Holman, as a witness, and proposed to inquire of him as to a conversation between him and the plaintiff, which took place in the office of Milton Whitney, Esq., an attorney of this court, before the commencement of the suit. The witness having stated, that at the time of the conversation, he was a student at law in Whitney’s office; that the plaintiff called there for professional p ’vice; that he did not know but the plaintiff supposed him to be Mr. Whitney; and that the conversation was relative to the plaintiff’s claims against the defendant, as to which the plaintiff consulted the witness; the judge ruled, that it was not competent for the witness to testify as to any statements then made to him by the plaintiff, for the purpose of obtaining professional advice. Whitney was not present at the conversation ; he was not the attorney of the plaintiff in this suit; and it did not appear that the plaintiff had ever before consulted him. The jury found a verdict for the plaintiff, and the defendant alleged exceptions.</p>

This was an action of assumpsit on the following note: “ On reckoning with F. A. Brooks this day of accounts, after deducting for five cows and one horse he had of me, there is due F. A. Brooks as executor of A. Brooks, Jr., five hundred and twenty three dollars and forty four cents, payable to himself or order on demand, with interest. This is given in exchange for memorandum to him of February 7, 1846, of $690.57. July 23, 1847.

<p>A tender, under Bev. Sts. c. 25, § 23, of a certain sum in full of damages sustained in consequence of a defect in a highway, has the effect and operation of a tender at common law; and where the declaration contains only one cause of action, specifically set forth, the tender is a conclusive admission of every fact, which the plaintiff would otherwise be bound to prove, in order to maintain his action, and precludes the defendant from introducing evidence of carelessness on the part of the plaintiff, either as to the merits of the case, or in mitigation of damages.</p> <p>In an action against a town for an injury sustained by reason of a defect in a high way, groans or exclamations, uttered by the plaintiff at any time, expressing present pain or agony, and referring by word or gesture to the seat of the pain, are admissible in evidence for the plaintiff.</p>

<p>If an attorney, inadvertently and without the knowledge of his client, takes judgment and obtains execution for a sum known by his .client to be more than is really due him, and, on discovering the mistake, goes to the officer, in whose hands the execution is, to give him instructions as to the service thereof; the taking of judgment for too large a sum does not dissolve an attachment made in the action, as against subsequent attaching creditors ; and if the officer refuses to receive the attorney’s instructions, and applies the property to the payment of subsequent attaching creditors, the officer will be liable to the client.</p>

This was an action of assumpsit to recover the amount of an account. annexed to the writ, and was entered in the court of common pleas, at the March term, 1849.

<p>The testimony of experts is admissible, where the figures expressing the date of an instrument are obscure and difficult to be deciphered, to show what the true date is.</p> <p>The purchaser from an assignee in insolvency, of a promissory note payable to the insolvent or his order, and not indorsed either by the insolvent or the assignee, may maintain an action thereon, in the name of the insolvent, against the maker, if the insolvent interposes no objection.</p>

This was an action of assumpsit against the administrator of Horace Newton, founded upon the following writing: “ Worcester, January 19,1847. For value received, we jointly and severally promise to pay the master’s, clerk’s, messenger’s and assignee’s fees, respectively, in the case of Joseph Battles, an insolvent debtor; provided the same are not otherwise paid within six months. Joseph Battles.

<p>Mutual fire insurance companies are not liable to taxation for personal estate invested in their corporate names and held t>y them for the purposes of their incorporation.</p>

<p>Where a mortgagee of real estate made a quitclaim deed of his interest in part of the mortgaged premises, and afterwards, with the knowledge of the mortgagor entered on the mortgaged premises for breach of condition and for the purpose of foreclosure, a certificate of which entry, not stating on what part of the premises it was made, was indorsed on the mortgage deed, and duly recorded, and his grantee continued in possession of the part conveyed to him for three year* after the entry; it was held, that the entry of the mortgagee and the possession of his grantee constituted a perfect foreclosure of the mortgage, as to that part of the premises held by the latter.</p>

<p>This was an action of assumpsit on an account annexed to the writ, most of the items of which, as appeared by the report of an auditor, to whom the case had been referred, consisted of charges for wines and spirituous liquors, sold by the plaintiff to the defendant, in less quantities than fifteen gallons, between July, 1838, and February, 1840.</p> <p>The defendant pleaded the general issue, but did not file any specification of defence. At the trial in the court of common pleas the defendant objected to the plaintiff’s right to recover for these items, on the ground that the plaintiff was not licensed to make the sales; and offered evidence to show that the plaintiff was not so licensed. But the judge rejected the evidence, because the defendant had not filed any specification, of defence, giving notice of his intention to rely upon such a ground of defence, or that the sales were made within the commonwealth. And a verdict being rendered for the plaintiff, the defendant alleged exceptions.</p>