Volume 7 — Massachusetts Reports

<p>Assumpsit for money expended by the plaintiffs in the support and maintenance of one Eli Emmons, a pauper, whose settlement they allege to be in Amherst.</p> <p>The question, whether the defendants are liable to refund the money so expended by the plaintiffs, was submitted to the deter mination of the Court upon a case stated by the parties.</p> <p>The case states that Robert Emmons, and the pauper, his son, had their legal settlement in Amherst, on the first of May, 1780: the father then removed, with his son, a minor, [ * 2 ] * to Granby, where the father occupied lands, of which he was seised in fee, of the value of 500 dollars, and for which he paid taxes. In the autumn of 1784, Robert, with his said son, removed from Granby to Belchertown, upon lands, of which Robert was seised, of the value of 300 dollars, and which he occupied, and for which he paid taxes, his son Eli living with him until his death, March 14th, 1790. The lands descended to the pauper, his only son and heir, he being then a minor. From his father’s death the pauper lived with his guardians, in Belchertown, until the latter part of August, 1795, except when he was absent at Dartmouth college, where he was four years, and until he received his degree. On the 14th of March, 1795, he came of age, and on the 28th of July, in the same year, he sold the said lands. For the period of two years and more from his father’s death, the same lands were of the clear yearly value of 10 dollars and more, and during that time in the actual occupation and improvement of his guardians, for his sole use and benefit.</p> <p>The parties agreed that at the time of Robert’s removal from Amherst to Granby, he was lawfully settled in the former place, and that he so continued until his death, unless, by the facts agreed, he lost his settlement by gaining a new one in some other place; and that the said Eli, the pauper, was also so settled in said Amherst, at the time of his father’s removal therefrom, and so continued until the commencement of this action, unless, from the facts agreed, he had gained some other settlement.</p> <p>It was also agreed that if, upon these facts, the Court should be of opinion that the said Eli was lawfully settled in Amherst, judgment should be rendered for the plaintiffs for a sum agreed in damages with costs; otherwise the defendants were to recover their costs.</p>

<p>By a grant of a grist-mill with the appurtenances thereon, the soil of a way, immemorially used for the purpose of access to the mill ftom the highway, does not pass.</p>

At the Common Pleas, for this county, November term, 1808, an indictment was found by the grand jury, charging, “ that there is, and for a long time hath been, a certain common highway, leading from Chicopee road, so called, in the town of Springfield, to the town of South Hadley, in said county, by a place called the Slabury Ponds, used by and for all the citizens of this commonwealth, with their horses and carriages, to go, pass and [ * 10 ] repass, at their free * will…

<p>W here one conveys land as the attorney of another, he must do it in the name of his principal, and as his act, and not as the act of the attorney.</p> <p>A wife may bar herself of dower by joining her husband in a deed of conveyance, relinquishing her claim to dower, and putting her seal to the deed.</p> <p>Or she may do it by her separate deed, subsequent to and in consideration ot her husband’s sale.</p> <p>So she may pass her own land by deed executed by her jointly with her husband; but her covenants in such deed have no operation but by way of estoppel.</p> <p>Her separate deed is ipso facto void, as are all the covenants contained in it.</p> <p>if a promissory note be given without any consideration, it is nudum pactum, and void as between the parties.</p> <p>Where an attorney had a promissory note committed to him for collection, and receiving a partial payment of the debtor, paid it over to the creditor, without endorsing it on the note, and afterwards obtained judgment on the note, he was held liable to the debtor for the amount of such partial payment, in an action for money had and received.</p>

<p>This action was assumpsit, and was tried at the last April term in this county, before Sedgwick, J. A verdict being found for the plaintiffs, the defendants filed exceptions, on which they moved for a new trial. The exceptions were to the admission of Justin Ely, Esq., as a witness'for the plaintiffs, when his admission was opposed by the defendants.</p> <p>The witness was examined on the voir dire, and declared generally that he had no interest in the event of the suit; but on his examination it further appeared that he had endorsed the original writ in this case, and continued as endorser until this term, when, on motion therefor, the name of the said Justin Ely was erased, and the name of Jonathan Dwight, jr. Esq., substituted in lieu thereof as endorser. The said Justin further declared, on his said oath, that he should indemnify the said Jonathan for such costs as he might be compelled to pay, in consequence of such endorsement ; and that he expected to charge the amount of such payment to the plaintiffs, and to receive the same from them.</p>

<p>One summoned as a trustee of an absconding debtor cannot appear and plead for his principal, unless he have effects in his hands, on which the process may take effect.</p> <p>Nor can he plead in his own name, except when he is personally injured by the process, as when he is the only person summoned as trustee, and is called to answer out of his county.</p> <p>But a trustee having effects may, in the name of his principal, take any legal exception in abatement, as the want of a regular service on the principal.</p>

<p>Practice. — In trespass quare clausum fregit, by husband and wife, for a trespass on the wife’s land, after a verdict for the defendant, and before judgment the wife died, and the defendant had judgment for his costs against the husband.</p>

<p>When money is paid in consideration of a contract, which contract is void foi a want of power in one of the parties, or for any cause other than fraud or illegality in the contract, the money so paid may be recovered back m an action for money had and received.</p>

<p>The plaintiff, as sheriff of the county of Hampshire, having appointed the defendant, Thomas Kidd, to be one of his deputies, took from him, and the other defendant, a bond, conditioned, among other things, that Kidd should pay over to him one quarter part of all fees which he should receive as a deputy sheriff. The present action was debt upon that bond.</p> <p>The defendants, in a plea in bar, set forth the provision of the statute of 1795, c. 41, commonly called the fee bill, which declares that “ no sheriff shall demand or receive from any of his deputies, more than at the rate of twenty-five per cent, on the amount of fees for travel and service.” And thereupon the defendants say that the writing obligatory declared on is void in law.</p> <p>To this plea the plaintiff demurs generally, and the defendants join in demurrer.</p>

<p>An officer, having an execution against one, may lawfully enter the close of the debtor, and cut down, seize and sell, as personal estate, corn or other product of the soil there growing, when ripe and in a fit state to be gathered.</p>

<p>A commission merchant, m Boston, sold goods consigned to him on three months’ credit, taking in payment the purchaser’s promissory note, payable to himself or order; the purchaser became bankrupt before the time of payment arrived, and no dividend was ever declared of his estate. It was held, that the factor was not answerable to his principal for the value of the goods sold.</p>

<p>This was an action of assumpsit for the support and relief ol Stephen Temple, Rhoda Temple, alleged by the plaintiffs to be the wife of the said Stephen, and their six children, being paupers, whom the plaintiffs aver to have their legal settlement in Worcester.</p> <p>The action was tried upon the general issue, at the sittings after the last September term, in this county, before Sewall, J.</p> <p>The report of the judge states, that “ the parties agreed to the items of the account, and to the sums charged for the same; sub ject only to the question of the settlement of the paupers; that due notice had been given by the town of Milford, which had been replied to seasonably, as the law requires, by the defendants; and, upon the question of settlement, it was agreed that the said Stephen Temple had his legal settlement in Worcester; and that the said Rhoda and the six children had their legal settlement there also, if she was the lawful wife of the said Stephen; but if not, that then the town of Worcester is liable for the expense of supporting Stephen Temple only.”</p> <p>“The evidence of a marriage between the said Stephen and Rhoda was a certificate, by the town clerk of Upton, in the county of Worcester, that, in the book kept for that purpose, there is an entry, July 6, 1784, of the intentions of marriage of Stephen Temple and Rhoda Essling; and by the deposition of the said Rhoda, and the testimony of other witnesses, it appeared that, in the year 1784, and several years before, the said Stephen and the said Rhoda, then Rhoda Ss sling, were residents in Upton, and some time in [ * 49 ] * that year they came together to a tavern in Upton, when - }Dorr, Esq., then a justice of the peace for the county of Worcester, happened to be there; and producing a certificate, that their intentions of marriage had been published, requested him to marry them; but he, after some inquiry into the cause of the application to him, refused “ to take an active part,” as the witnesses expressed it. The said Stephen and Rhoda continued notwithstanding in the room where the said Dorr was, and there in his presence, and before several other witnesses, the said Stephen declared that he took the said Rhoda as his lawful wife ; and she declared that she took him as her lawful husband; and each made to the other the vows and promises usual in contracting marriages. According to some of the testimony offered for the plaintiffs, this proceeding was directed and encouraged by the said Dorr. But this part of the testimony was contradicted by the deposition of Dorr; and the judge left it to the jury to decide upon the whole evidence, whether the proceedings had the sanction, in any degree, of the said Dorr, acting as a magistrate; with directions to find for the plaintiffs the amount of their account, including the support of the woman and her children, if the consent of the said Dorr to be present as a magistrate had been proved; and otherwise to find the amount due for the relief of Stephen Temple only.”</p> <p>The jury found for the plaintiffs the amount due for the relief of the said Stephen, and no more. The verdict was taken, subject to the opinion of the Court, upon the evidence reported, whether there was proof of a lawful marriage, &c.</p>

<p>A promissory note in form, “J promise to pay," &c., and subscribed by two persons, is a joint and several note.</p>

<p>This action, which was assumpsit for money had and received for the use of the plaintiff, was tried upon the general issue before Sewall, J., at the sittings after the last October term.</p> <p>The sums demanded were stated at the trial to be the amount of certain assessments, paid by individuals, inhabitants of the said precinct, and there liable for parochial taxes, voted, and assessed, in the years 1805 and 1806, but who, in those years, had usually attended public worship with the plaintiff; and had employed him as their religious teacher.</p> <p>The evidence, in support of this claim, was a compact in writing, dated March 1.5th-, 1805, signed, among many others, by Forbes, Hunter, and Pellett, the persons whose assessments the plaintiff claimed; in which compact the subscribers mutually engage to have stated annual meetings for choosing a select committee and officers, for the support of public worship, and to maintain each other against oppression, &c.; also another written document, dated September 22d, 1803, purporting to contain, among other things, a certificate of the ordination of the plaintiff, as an evangelist, or religious teacher, according to the Abrahamic covenant, &c., which was admitted in evidence, by the consent of the defendants, to have all the effect which the like testimony of the subscribers thereto would have, if sworn as witnesses in the trial.</p> <p>From oral testimony it appeared that, in the years 1805 and 1806, the plaintiff’s usual residence and home was at Sturbridge, which is contiguous to Brookfield; that in those years he had the care, as a religious teacher, of five distinct societies, understood to be similar associations with that in Brookfield, to whom he had engaged to preach one Sunday in each calendar month in a regular course, that is to say, at Brookfield, Sturbridge, Charlton, and Oxford, and as often *as a fifth Sunday happened in a [ * 61 ] month, at South Brimfield, places not more than seventeen miles distant from the said second precinct in Brookfield.</p> <p>From the same testimony it appeared, that the plaintiff and his adherents call themselves Universalists, and profess to teach and believe a final redemption of the whole family of mankind, a continuance after death of the means of probation, and a restoration, sooner or later, of all moral beings to a capacity of happiness, and a state of salvation, through the mediation of Jesus Christ, though not without a suitable reformation and conformity of the creature, &c.; that the persons whose assessments are demanded usually attended public worship with the plaintiff, and that he preached to them, in the course of the years mentioned, as often as twelve Sabbaths in each year, at a meeting-house, in the said precinct, originally erected by a voluntary society of the persuasion called Baptists, among whom were some now associating as Universalists; that the said meeting-house and the pews therein are, and were, in the years 1805 and 1806, occupied, and understood to be owned, by individu ais, a large majority of whom continue of the persuasion called Baptists, and who, in the year 1805, became an incorporated Baptist society; but being without any constant or regular teacher, the plaintiff preached in their house, when there happened to be no teacher of the Baptist persuasion employed.</p> <p>Upon this evidence the judge directed a nonsuit, subject to the opinion of the Court upon the foregoing report, the plaintiff moving to have the nonsuit set aside, and for a new trial.</p>

<p>The petition, in this case, which was presented at the last April term in this county, stated that the respondent had recovered a judgment against the petitioner for 907 dollars 65 cents, damage, with costs, at the Court of Common Pleas for this county, September term, 1809, and, for reasons set forth, prayed for a review.</p> <p>At the last term, notice was ordered returnable at the present term, and a stay of execution upon the petitioner’s giving bond, with sureties, to respond the judgment on the review, or to pay the amount of the former judgment, in case the action should not be reviewed. No notice having been given, Blake, for the petitioner, now moved for a new order of notice, and for a further stay of execution.</p>

<p>This was an action of trespass on the case for the recovery of damages for a deceit in the sale of a mare.</p> <p>The declaration contained several counts for the same cause of action. The fifth count, upon which the verdict was taken, alleges that the defendant, at, &c., on, &c., being possessed of a marc, which was unsound, and infected with a bad and inveterate sore in her shoulder, which rendered her of no value; and the plaintiff being then and there also possessed of a mare and a pair of steers, as of his own proper goods, of the value of eighty dollars; the defendant, to induce the plaintiff to exchange his said mare and steers with the defendant, for his said mare, and a note, or piece of paper, did, then and there, falsely and fraudulently affirm to the plaintiff, that his, the defendant’s, mare was well, sound, * and good.. Whereupon the plaintiff, giving full credit [ * 66 ] to the said affirmation, was instantly induced to, and did then and there, deliver his said mare and steers to the defendant, in exchange for his said mare, and a note, or piece of paper; and the defendant then and there delivered his said mare, and a note, or piece of paper, to the plaintiff, in exchange for his said mare and steers. The plaintiff then avers, that the defendant’s mare was not, at the time of the delivery, exchange, and affirmation, aforesaid, well, sound, or good ; but was infected with a bad wound, oi swelling, commonly called a fistula, in and over her shoulder, which made her utterly unfit for service, and good for nothing; of all which the defendant was well knowing; and so, by means of his said false affirmation, hath greatly injured and defrauded the plaintiff.</p> <p>The cause was tried, upon the issue of not guilty, before Sewall, J., at the sittings, after the last September term, in this county.</p> <p>At the trial the plaintiff produced a witness, who testified that he was present at the time of making the bargain, but did not hear the conversation which passed between the parties; that he was called upon by the defendant to witness the bargain, and the defendant then stated, in his presence, that he had agreed with the plaintiff to deliver to him a bay mare, which was not then present, safe and sound ; that he was to have a horse of the plaintiff in exchange, which was then and there delivered; and that the plaintiff was to keep a certain pair of steers, understood by the witness as then belonging to the plaintiff, for one week, and that the defendant was to deliver a piece of paper to the plaintiff, the nature of which he, the witness, did not know ; and that he, the witness, received a paper from the defendant, which he delivered to the plaintiff, but did not know what the paper was. It was also in evidence that the steers were a part of the bargain. The defendant objected, that this evidence did not support any one count in the plaintiff’s declaration, because it was not alleged in any [ * 67 ] * of the counts, that the plaintiff was to keep the steers a week. The judge overruled this objection, and directed the jury that the variance was immaterial; and thereupon the jury returned a verdict, in which they found the defendant guilty as to the fifth count, and not guilty as to the other counts.</p> <p>The defendant’s counsel excepted to the direction of the judge to the jury, and thereupon moved for a new trial. The action stood over to this term, upon the said motion; and now</p>

<p>There may be implied covenants, or covenants in law, in a deed containing express covenants; but such implied covenants must be consistent with those expressed.</p>

This was a writ of entry sur disseisin, in which the demandant counts on his own seisin within one year, and on a disseisin by the tenant, of four several parcels of land.

<p>This action was a writ of entry in the post, in which the demand-ants claim two undivided tenth parts of the tenements described in their writ, and they count on the seisin of their father, Abijah Everenden, within fifty years, alleging that the tenant has no entry, but after an abatement of the heirs, on the death of their father, by one Josiah Bussey.</p> <p>* The general issue was pleaded ; and also, by leave of [ * 77 ] the Court, a plea in bar, in which the defendants allege that, pending the suit, the demandants have, by deed, released all their right to the said James Beaumont, then in the actual possession.</p> <p>To this plea in bar the demandants, after having oyer of the deed of release, reply that they, before the commencement of this action, believing and supposing that they had good right to sell and convey the premises, had bargained, sold, and conveyed the same to one William Dunbar and his heirs; and that the said William also believed and supposed that the demandants had such right to convey the same; and that this action is sued for the use and benefit of the said William; all which the defendants well knew before the execution of the said release to the said Beaumont by the demandants.</p> <p>To this replication there was a general demurrer, which was joined.</p> <p>The cause was briefly spoken to at the last October term in this county, by B. Whitman for the demandants, and by Wheaton for the defendants, and being continued nisi, Jackson, at the last March term in Suffolk, was heard in support of the replication. The opinion of the Court was afterwards delivered at the last-mentioned term by</p>

<p>The judge of probate has no authority to assign the reversion of the widow’s dower to one of the heirs, in exclusion of the rest; and a decree to that effect, of forty years’ standing, was held to be void, and the land yet subject to partition.</p>

In this action Fisher demanded one undivided forty-eighth part of the land described in the writ. It was submitted to the decision of the Court, on a case stated and agreed by the parties. John Fisher, on the 16th of August, 1796, was seised of the demanded premises, and on that day devised the same to Thankful, his wife, for the term of her life, remainder *in [ * 87 ] fee to Samuel Hill, jun., son of the tenant.

<p>Assumpsit for moneys expended by the plaintiffs in the support and maintenance of one Roba Vickons, a pauper, alleged by the plaintiffs to have had her legal settlement in Natick, and a child of the said Roba.</p> <p>The parties agreed that judgment should be rendered on the following facts: —</p> <p>The pauper is the daughter of Ishmael Coffee, of Medway. The said Ishmael is half black and half white. His wife, who is the mother of Roba, the pauper, is a white woman; the said Roba was married to one Christopher Vickons, of Natick, a white person, August 6, 1789, by the Rev. Stephen Badger, of said Natick. The said Christopher is dead, and at the time of his death had his legal settlement in the said town of Natick. The said Roba, and her child by the said Christopher, are residing in Medway, are poor and indigent, and have been relieved by the said town of Med-way, &c.</p> <p>If, upon these facts, it should be the opinion of the Court that the said Roba is a mulatto, within the meaning of the “ Act for the more orderly consummation of marriages,” (1) and that the said act, so far as it relates to a prohibition of marriage between a white person and a mulatto, and declaring the same to be null and void, is constitutional, then the plaintiffs agree to become nonsuit But !f the Court should be of opinion that the said Roba is not i mu« lotto, or that the said act, so far as it relates to prohibiting the marriage of a white person with a mulatto, &c., is unconstitutional, then the defendants agree to be defaulted, and that judgment shall be rendered for the plaintiffs for the sum demanded by them.</p>

This action, which was trespass for an assault and false imprisonment of the plaintiff by the defendants, came before the Court upon certain agreed facts; from which it appears, that the defendants were duly appointed assessors of the third parish in Dedham, on the 14th of March, 1808; that during the same year the parish granted sundry taxes for parish purposes, which the defendants assessed upon the parishioners, and amongst them upon the plaintiff, who was a member of the…

<p>Reviews are had only in actions commenced by writ.</p>

This was a writ of error, brought to reverse a judgment of the Court of Common Pleas for this county, rendered upon the report of referees, appointed pursuant to the statute of 1786, c. 21.

<p>A libel for divorce cannot be sued by a guardian of a spendthrift.</p>

<p>This was an action of debt upon bond. The plaintiff, having recovered judgment against one Jonathan Nutting, for 578 dollars 65 cents damage, and 15 dollars and 97 cents, costs of suit, sued out her execution on that judgment, on which Nutting was arrested and committed a prisoner in the county jail at Cambridge. While thus a prisoner, and to obtain the liberty of the yard, Nutting, as principal, and the defendant, and one Jesse Brown, as his sureties, jointly and severally executed to the plaintiff the bond declared on in this action, in the penal sum of 1189 dollars, with a condition in due form of law.</p> <p>[ * 99 ] *The defendant pleaded three several pleas. 1. Non est factum, on which issue was joined, and a verdict found for the plaintiff, the defendant admitting the bond to be his deed. 2. In bar, that the bond was void, not being made pursuant to the statute, as the penalty was not in double the sum for which Nutting was imprisoned. To this plea the plaintiff demurred, and the defendant joined in demurrer. 3. In the third plea the escape of Nutting was traversed, and the issue was, whether he had or had not committed an escape.</p> <p>The chief justice, before whom both the issues in the case were tried, at the last October term in this county, reported that, on the trial of this last issue, it was proved, or admitted, that the said jail, and the dwelling of the jail-keeper, were under one roof; that on the lower floor there is one room, and on the second floor two rooms, furnished with locks, bars, and grates, and which have been always used as the jail, to confine prisoners lawfully committed; that in the upper story, or garret, were chambers, which have been always appropriated as lodging-rooms for debtors in execution entitled to the liberty of the yard; that on the lower floor are two rooms always appropriated for the dwelling of the jail-keeper and his family, in which prisoners are never confined; and that the whole building is included within the limits of the yard, appurtenant to the said jail; that when Nutting was committed as aforesaid, the said apartments were, and ever since have been, occupied by the jail-keeper and his family, as their habitation. No record of the Court of Sessions of any of the said appropriations, was shown on the trial, but they were proved only by evidence of immemorial usage. After Nutting and his sureties had executed the said bond, lie occupied one of the said rooms in the upper story for his chamber or lodging-room; and since that time, and before the commencement of this action, he was frequently, in the night-time, in the apartments on the lower floor, appropriated for and occupied by the jail-keeper and his family as their habitation.</p> <p>[ * 100 ] *on these facts the jury were directed, that, in law, the said Nutting had committed an escape, and that the plaintiff had maintained the issue on her part. But the jury found a verdict for the defendant. The plaintiff moved for a new trial, because the verdict was against law, and against the direction of the judge in a matter of law.</p>

<p>This was an action of the case against the defendant, as propn etor of four shares in the turnpike, for not paying sundry assessments, duly made by the directors of the corporation, amounting, in the whole, to the sum of 860 dollars, on the defendant’s four shares. The declaration contained a number of counts, of which the sixth was as follows, viz. * “ And, also, for [ * 108 ] that the said Hay, at, &c., on, &c., in consideration that the plaintiff did then and there permit him to subscribe a certain agreement to become a member of said corporation, and be propri etor of four shares therein, whereby said Hay did, in fact, become a member and proprietor as aforesaid, did then and there promise the said corporation, that he would pay them all assessments which should be legally assessed by said corporation upon the said four shares, provided the same should not exceed one half the value of his estate. Now the plaintiffs aver, that since the time of subscribing said agreement, and making said promise, there have been legally assessed by said corporation, on each share therein, several assessments, amounting, in the whole, to 215 dollars, payable at several periods, all of which have long since elapsed, amounting, in the whole upon the said four shares, to the sum of 860 dollars, of all which said Hay has had due notice. And the plaintiffs aver, that the said sum of 860 dollars is far less than one half the estate of said Hay. Yet, though requested,” &c.</p> <p>The action was tried upon the general issue, before the chief justice, at the sittings after the last October term, in this county ; and a verdict found for the plaintiffs by consent of the parties, subject to the opinion of the Court on the following case:—that the said corporation was erected by the statute of 1805, c. 14; that on the ninth day of September, in the same year, the persons named in the statute, in order to obtain associates, caused a subscription paper to be drawn of the tenor following, viz. “ Whereas the legislature of this commonwealth, has, at the last sessions, granted leave for making a tum/pike road, from near the house of John Russel, in Andover, through the west parish in Reading, thence through the town of Stoneham, near the house of David Hay, and from thence to the market-place in Medford: We, the subscribers, desirous of having the same completed as soon as possible, agree to take in said road the number of shares set against our names.” That [*104] the defendant then subscribed this * paper, and set against his name two shares; that afterwards, on the ninth of December, in the same year, at a legal meeting of the members of the corporation, the defendant added two shares more against his name; and in open meeting declared, when speaking of the expenses of making said turnpike, that if one thousand dollars was not enough, he would spend two thousand dollars, and if that was not enough, he would spend half his estate; that the said turnpike road had been duly located and made; that the sum of 860 dollars has been duly assessed on the defendant’s four shares aforesaid, being less than half the value of his estate; that after due notice of the premises, the defendant has refused to pay the said assessments, or any part thereof.</p> <p>If, upon these facts, so far as the Court should deem them legally admitted in evidence, the Court should be of opinion that the defendant made either of the promises alleged in the plaintiff’s leclaration, then the verdict was to stand; otherwise it was to be set aside, and a general verdict entered for the defendant, and judgment in either case to be rendered accordingly.</p>

<p>The law will not imply an assumpsit where there is an express promise; no? against the express declaration of the party, made at the time of the supposed implied assumpsit.</p>

<p>This was an action of the case in assumpsit, and was tried upon the general issue, October term, 1808, before Parker, J.; and a verdict found for the plaintiff, who, as appears from the judge’s report, objected thereto, and moved for a new trial, on the ground that the jury allowed interest, on two certain papers declared upon, only from the date of the writ; the plaintiff insisting that the interest ought to have been allowed from the date of those papers; and although the difference in the amount was small, it was yet important, because the jury having returned less than fifty dollars, the plaintiff was, by the statute of 1803, c. 155, § 5, subjected to the payment of the costs of this Court; whereas, had there been no mistake in the calculation, the verdict must have been for more than fifty dollars, and in that case the plaintiff would recover her full costs.</p> <p>The evidence, upon which the plaintiff rested her claim to a verdict, was, that the notes described in the several * counts were delivered to her by the defendant in dis- [*111 ] charge of a demand which she had against him, but she had failed to obtain payment of them without any loches on her part; and it was, testified in the case, that when the adjustment took place between the plaintiff and the defendant, the interest on the notes was calculated from their several dates, and that the defendant was allowed therefor out of the plaintiff’s demand against him ; and this testimony was unimpeached.</p>

<p>The declaration in this case was in a plea of covenant broken; in which the plaintiff declares on a deed executed by the defendant, whereby, for a valuable consideration therein expressed, the defendant covenanted that, if he should survive Tuthill Hubbard, he would pay over and convey to the plaintiff, his heirs, executor, and administrators, one third part of all the estate, real and personal, which might descend to the defendant from the said Tuthill, as an heir to him ; that the defendant survived the said Tuthill, who died intestate, and from whom a large estate, real and personal, descended to the defendant, who has come to the possession thereof; that thereupon the plaintiff requested him to pay and convey one third part thereof to him, which the defendant has refused to do, and so has broken his covenant, to the plaintiff’s damage 25,000 dollars.</p> <p>The defendant prays oyer of the deed declared on, and it is read to him in these words, viz. “ This indenture, made and concluded between John Hubbard, of Broadalbin, in the county of Montgomery, and state of New York, of the first part, and Abel Boynton, of the city of Schenectady, and state aforesaid, of the second part, witnes^eth, that whereas the said party of the first part is the nephew of, and heir expectant to one Tuthill Hubbard, of Boston, in the state of Massachusetts, as likewise nephew of, and heir expectant to one Elizabeth Patridge, of Boston aforesaid, widow, sister to said Tuthill Hubbard, and should he survive, the said John Hubbard is the person to whom the estate of the said Tuthill and the said Elizabeth, in all probability, will descend. And whereas the said party of the second part is willing to make advances of money to, and otherwise assist the said party of the first part, he agreeing in some manner to remunerate him out of the said estate, or estates, should the same so descend to him upon the death of the said Tuthill or Elizabeth. Now, know all men by these presents, that I, the said John Hubbard, * in considera- [ * 113 ] tian of the sum of four hundred and fifty dollars, to me paid by the said Abel Boynton, the receipt whereof I do hereby acknowledge, and for divers other good considerations, do bind myself, my heirs, executors, and administrators, in case I should survive the said Tuthill Hubbard, or the said Elizabeth Patridge, and become heir, by will or otherwise, to the estate of the said Tuthill, or the said Elizabeth, or any part thereof as aforesaid, to pay over, or cause to be conveyed to the said Abel Boynton, his heirs, executors, and administrators, one third part of all the lands, tenements, hereditaments, goods, chattels, or effects, whatsoever, that now has, may or shall descend to me, the said John Hubbard, in manner aforesaid, as heir to the said Tuthill Hubbard, and said Elizabeth Patridge, as soon as I, the said John, can obtain possession of the same by due enforcement of law; and the said Boynton is to receive in this proportion of all property, of every name and nature, that I may receive, possess, or be entitled to, in manner aforesaid, or that I may in any way or manner receive, as heir to said Tuthill and Elizabeth, by settlement, agreement, or compromise. In witness whereof, I have hereunto set my hand and seal, this fifteenth day of July, in the year of our Lord eighteen hundred and seven.” And thereupon the defendant pleads that he ought not to be charged with any breach of the covenants contained in the said writing, because he says that the same was obtained by the fraud and imposition of the plaintiff, and so the same is not his deed; and thereof he puts himself on the .country. This issue being joined by the plaintiff, was tried by a jury, who found a verdict for the plaintiff, and assessed his damages at 2000 dollars.</p> <p>The defendant thereupon moved in arrest of judgment, on the ground that the deed declared on is void, as against the general policy of the law.</p> <p>The plaintiff also moved for a new trial, 'because the damages were too small. This motion of the plaintiff was to, be decided, not upon the report of the evidence by the 1*114] * judge, but upon certain facts agreed by the parties, viz. that the said Tuthill Hubbard died intestate leaving an estate worth 300,000 dollars ; that the defendant was entitled, as a co-heir, to one sixth part thereof; and that the plaintiff had required him to transfer one third part of his share, which he had refused to do.</p> <p>But the plaintiff not waiving his right to a review, his motion for a new trial was afterwards withdrawn ; and the only motion remaining for decision was that made by the defendant to arrest the judgment.</p> <p>This motion was argued at the last term in this county, by Otis and Bigelow for the defendant, and Ward and Dana for the plaintiff.</p>

<p>This was an action of the case against the defendant, for the negligence and misfeasance of William Caldwell, his deputy. Upon a trial had before the chief justice, at the sittings after the last October term, in this county, upon the general issue, a verdict was found for the plaintiff, by the consent of the parties, subject to the opinion of the Court upon a case stated ; it being agreed that the verdict might be amended or set aside," as the opinion of the Court should be upon the facts in the case.</p> <p>It appears, from the case, that the plaintiff sued his writ against one Daniel Goulding, upon which he afterwards recovered the .judgment alleged in the declaration;— that the writ was dujy directed and delivered to the deputy to be served, with an endorsement thereon, not signed, of the following tenor: “ Mr. Officer, take property sufficient to secure the debt;” — thaJ [ * 124 ] when the writ was delivered to the * deputy, which was on Saturday evening, the fifteenth day of September, 1807, he was directed to attach personal property sufficient to secure the debt, if he could find enough; if not, attach real estate, so as to make the debt secure;—that the deputy, after expressing his doubts whether sufficient real and personal estate could be found, took the writ, saying he would attend to the business immediately, and would secure the debt, if it were possible;—that in the afternoon of the next Monday, the deputy went to Goulding’s house to attach personal estate, and was admitted;—that Goulding, being by trade a tanner, had a number of hides in his vats to tan, and he proposed to the deputy to attach them, and to take a lease of the vats until the hides should be tanned, to which proposition the deputy agreed;—that Goulding had in his house furniture liable to attachment, worth 100 dollars, but the same was mixed with furniture belonging to some women, some of whom were then in the house;—that the same deputy then had another writ against Goulding, at the suit of a Mr. Heywood, but received after the plaintiff’s writ;—that after he had agreed to attach the hides, he left Goulding’s house, with Heywood, to attach on his writ some cattle, hay, and husbandry tools, which were worth, deducting all charges of attaching, keeping, and selling, one hundred and fifty dollars; — that he attached the same for Heywood, who showed them to him, he having before no knowledge of them; but by reasonable inquiry he might have discovered and attached them upon the plaintiff’s writ on Monday morning, before he received Heywood’s writ;—that the deputy then returned to Goulding’s to attach the hides, but in the mean time another deputy had attached them for other creditors, taking a lease of the vats, having them afterwards tanned, and selling them on other executions, the net proceeds of which, deducting the expense of tanning, and all other charges, amounted to 517 dollars 65 cents;—that if the deputy had tarried at Goulding’s to attach the hides, and take a lease of the vats, he could not afterwards, on the same day, have gone and * attached the chattels which he did attach at [ * 125 ] Heywood’s suit;—that the attaching of the hides, and taking them from the vats into the deputy’s custody, would have materially damaged them;—and that he had, in fact, made no attachment of any estate of Goulding’s at the plaintiff’s suit, and the plaintiff’s execution against him is wholly unsatisfied, although duly issued and delivered to the deputy.</p> <p>The counsel for the plaintiff contended that it was the duty of the deputy sheriff to attach the hides, all movable property being liable to be seized in execution, and therefore to be attached on mesne process, except those exempted by the statute of 1805, r. 100. The attaching of hides in vats is so customary here, as to have become, in a manner, the common law of the country. Whatever may be distrained for public taxes, may be attached for debt; but the legislature do not exempt hides in vats, nor, indeed, any articles as perishable, from distress for taxes. It is very difficult to draw a line between articles perishable and those not so. Indeed, very little injury arises to hides from suspending the process of tanning. It is a ruling principle, in the policy of our country, to provide for the payment of debts; and to this almost every other consideration is made to yield. Thus lands are subject to be taken in execution, and the fee transferred by the act of law from the debtor to the creditor; other rights in land, as equities of redemption, are sold for cash at auction, as are all chattels; so that any arguments drawn from the common law respecting distresses, which was attempted at the trial, apply with very little weight here. It is also to be considered that in this state, and especially in the country, a very great proportion of the personal property of the citizens is in a state in which it will be injured by long keeping, as provisions, and all articles in the hands of manufacturers.</p> <p>It was argued for 1,he defendant, that the deputy sheriff having committed no fault, the defendant ought to have had a verdict in his favor; that the deputy had no indemnity from the [ * 126 ] plaintiff, nor any direction to attach any particular * chattels, and, therefore, was not obliged to expose himself to any hazard by making a special attachment. As to the furniture in Goulding’s house, it was mixed with other furniture, and had no mark by which the deputy could distinguish it. The goods attached on Heywood’s suit were unknown to the officer, and he was not obliged to discover them; Heywood having found them, he had a right to have them attached on his suit; and as to the hides, the deputy was not obliged to hire the vats, and turn tanner. (1)</p>

This was a writ of entry, brought to obtain possession of certain lands, mortgaged by the tenant to Royal Makepeace and Robert Rose, in joint tenancy at common law, since the statute of 1785, c. 62, (by the fourth section of which it is enacted, that all gifts, &c., of any lands, &c., made to two or more persons, shall be taken to be estates in common, and not in joint tenancy, unless it shall be therein said that the grantees, &c., shall hold the lands, &c., jointly, or as…

<p>Tenants in common, and heirs, by our statute of distributions, must join in an action for the destruction of their charters or title deeds</p>

<p>The purchaser of an equity of redemption, sold by the sheriff on execution, pursuant to the statute of 1798, c. 76, obtains by such sale a legal seisin of the land, and may maintain a real action against any stranger, unless such stranger had, in fact, disseised the mortgagor before the sale of the equity.</p>

<p>The provincial act of 6 G. 2, c. 2, respecting an officer’s setting off cross execu tians against each other, is not repealed by the revised statute of 1783, c. 57, concerning the issuing and serving of executions.</p> <p>An officer, having an execution in favor of A against B and C, and another in favor of B against A, ought, if B consent, to set off one execution against the other.</p> <p>But where a coroner had an execution in favor of A B, against a deputy sheriff and another, and that other had an execution against A B, directed to the sheriff or his deputy, which he offered to the coroner, and requested him to set off one against the other; it was held that this was not a case within the act of 6 G. 2, c. 2, and that the coroner, Being a stranger to the last precept, was not obliged to receive it, nor to return it in any part satisfied.</p> <p>Where A obtains a judgment against B and C, and, at the same term, B recovers a judgment for a larger sum against A; if B will acknowledge satisfaction of the amount of A’s judgment against C and himself, in part of his judgment against A, the Court will stay A’s execution, and give B and C their execution for the balance.</p>

<p>At common law, a father may assign the services of his minor son to another for a consideration to enure wholly to the father; and this for a longer or shorter term, limited, however, by the son’s minority and the life of the father.</p> <p>And the statute of 1794, c. 64, does not take this power from the father; all contracts of service, legal at the common law, remaining legal since the statute; but the only remedy, which either party can have, is upon the contract, and not under the statute, unless the binding pursue the statute.</p> <p>When minors are bound as apprentices, pursuant to the statute, all considerations must be secured to the apprentice; whether such binding be by parents ur guardians, or by the minor with the approbation of the selectmen.</p>

<p>This action was commenced by writ returnable to the Court of Common Pleas holden for this county, on the Monday preceding the third Tuesday of March, 1807; which writ was served on the principal the 26th of the preceding February, on W. &f A. Whittemore the next day, and on Walker on the 2d day of March follow ing. In this action the plaintiff demanded four several sums of money, due by four several promissory notes made by the defendant to the plaintiff. The action was duly entered and prosecuted, and the defendant, Tippets, was defaulted ; the two WJlitte- [ * 150 ] mores * then appeared and offered to answer, but it was agreed by them and the plaintiff, that the action should be continued against the trustees, until the determination of a suit then pending between Tippets as plaintiff and these supposed trustees as defendants. In this last suit judgment was rendered in this court November term, 1808, for Tippets against the defendants, who procured a stay of execution by giving bond to review in due form of law. The action was reviewed by writ returnable to the then next April term of this court, at which term it was entered and continued to the succeeding October term, 1809. This action of Locke against Tippets and his trustees, was continued from term to term in the Common Pleas, to September term, 1809, when Walker, one of the trustees, was defaulted, not submitting to an examination; and the two Whittemores,' upon their examination under oath, declared that the contract, on which Tippets had sued them, was not intended to be their personal contract, but an agreement on behalf of the Middlesex turnpike corporation; that a review of said action was still pending; and that they had no other goods, effects, or credits, belonging to Tippets, in their hands, when this process was served upon them. Upon this disclosure, by the judgment of the Common Pleas, they were discharged with costs against Locke, who had judgment against Tippets, and an award of execution against his body, goods, and estate, and against his goods, effects, and credits in the hands of Walker. From this judgment Locke appealed to this Court; and at last October term of this Court, the two Whittemores further disclosed on oath, that they had settled the action of review with Tippets by paying him the former judgment, with twelve per cent, interest, and double the costs of the review agreeably to the condition of the review bond.</p> <p>The question before the Court upon these facts was whether the two Whittemores were liable to be holden in this action as the trustees of Tippets, the principal defendant. *This [ * 151 ] question was argued at the last March term in Suffolk, the action having been continued nisi by Ward for the plaintiff, and Bigelow and Dana for the trustees.</p>

<p>This was a writ of dower, and was submitted to the opinion ol the Court, upon a state of facts agreed and filed.</p> <p>From the statement it appears, that the demandant was once the wife of Thomas Hastings; that during the coverture, her said husband was lawfully seised in fee simple of the land, of which his widow demands her dower; that during the coverture, he mortgaged the lands in fee to Elizabeth Balch, then sole, but since married to William Dickinson, and with him the tenants in this action; that on the death of the said Thomas Hastings, the said mortgage not having been discharged, the tenants entered, in right of the wife, for condition broken.</p> <p>It further appears from this statement, that previous to the mat riage of the demandant with her husband Hastings, a marriage settlement was executed by them and one Jacob Watson as a trustee. In this settlement, the demandant covenanted with her intended husband, his heirs, executors, and administrators, that, in consideration of the intermarriage, and of the provision made by him by the covenants and agreements therein after mentioned to be done and performed on his part, for her support in case of widowhood, never to demand, claim, or challenge any right of dower for her thirds in the whole of the estate, of which the said Thomas might die seised and possessed. And the said Thomas, in consideration of the premises, for himself, his heirs, executors, and administrators, covenanted with the demandant, and the said trustee, that if she survived him, she should have full right and povver to demand and receive in money of his executors or administrators six per cent, on one fourth part of all the estate, of which he should die seised and possessed, after the payment of all his debts ; or at the rate of one dollar by the week, if the said six per * cent, was not an equiva- [ * 154 ] lent, and this annuity to continue during her life. There were some other stipulations and conditions in the said settlement •vhich have no bearing upon the present case.</p> <p>And it was further agreed by the parties, that the said Thomas Hastings died testate, having made in his will ■ some provision for the demandant; that she has renounced that provision; and that his estate is insolvent, and insufficient to pay all his debts.</p> <p>If, upon these facts, the Court should be of opinion that the demandant is entitled to dower in the land described in her writ, the tenants agreed to be defaulted, and that judgment should be rendered that the demandant recover her dower with legal damages and costs ; otherwise the demandant agreed to become nonsuit, and that the tenants should have judgment for their costs.</p> <p>At the last October term, Hilliard, of counsel for the tenants, argued that this marriage settlement was a bar to the demandant’s action ; that it is a perpetual covenant, which the Court, to avoid a circuity of action, would construe to be a release or estoppel; and that the intermarriage did not discharge the covenant. (1) A rea sonable expectation or even a hope of a contingent interest is a foundation for a contract. (2)</p>

<p>This action was case against the defendants to recover the expenses of maintaining James Bartlett, a pauper, alleged to have his settlement in Shirley.</p> <p>The cause was tried on the general issue, before the chief justice. at the sittings here after the last October term</p> <p>On the trial, it was admitted that the pauper’s settlement wai derived from his father, Samuel Bartlet; and that if the father’s settlement was in Shirley, the plaintiff must recover. On this point it was proved that Samuel, the father, before and on the 25th of January, 1765, lived in Stow, in that part of it then called Stow-leg, having his legal settlement there; that on the same 25th of January, by an act of the provincial legislature, the said Stow-leg and all the inhabitants living on it were annexed to and made a part of the town of Shirley; that the said Samuel continued to dwell in that part of Shirley formerly Stow-leg from that time to the 18th of April, 1767, without having been warned out; and on this last day he removed to Groton.</p> <p>On these facts the chief justice directed the jury, that in law the said Samuel had acquired a settlement in Shirley; and a verdict was found for the plaintiffs. The defendants moved for a new trial, on the ground of a misdirection by the judge.</p> <p>The action stood over to this term upon the said motion ; and now Dana, in support of the motion, contended, 1. That it was unnecessary for Shirley to warn Samuel Bartlet upon [ * 157 ] * the annexation of his place of dwelling to that town: he did not go there to sojourn ; and if he had been warned he could not have been removed from his freehold. 2. Notwithstanding this annexation to Shirley, he retained his former settlement in Stow. (1)</p>

<p>It is discretionary with the Sessions to appoint a viewing committee,'on an application for a highway, or not; and such committee may be appointed before notice to the town, &e. They need not be sworn ; and they may view at the expense of the applicants for the way.</p> <p>When certain persons had been admitted to oppose the location of a way, and after a continuance, the petitioners moving for further proceedings, prior to which the Court had ordered all the respondents should be notified, and further proceedings were had, without notice to those who had been so admitted, the proceedings were held to be irregular.</p> <p>The phrase from place to place,” in the statute of 1786, c. 67, § 4, means from one place in a town to another place in the same town.</p> <p>Upon an application for the alteration of an existing way, the Court cannot lay out a new one.</p>

<p>Where one who had been committed to the house of correction, as being a person dangerous to be permitted to go at large, was brought from the house of correction by order of Court, and tried and acquitted on an indictment for murder, he was remanded by the Court to the place from whence he had been brought.</p>

<p>An administrator may surrender a principal, for whom his intestate was bail.</p>

<p>In an action against the proprietors of a canal, who were bound by their incorporation to construct their canal so deep and wide, that rafts of a certain description could pass through it when the same could pass the river with which it was connected; it was held that they were liable to the owner of a raft of such description, having received toll thereof, for all the damages he sustained in consequence of the canal not being sufficient to pass the raft, without evidence that it could have passed the river.</p> <p>An action of trespass upon the case will lie against a corporation aggregate, for neglect of a corporate duty, by which the plaintiff suffers.</p>

<p>A conveys land for a valuable consideration to B, C, and D, selectmen of the town of H, to them and their successors in the said trust of selectmen, for the time being, for the use of E, and, after his death, if any of the premises should remain, then to E’s heirs forever; to hold, for the use aforesaid, at the discretion of the grantees ; E being in possession of the premises before and after the conveyance until his death, and having devised the same to his wife in fee : — It was held that B, C, and D look a legal estate in trust for £ and his heirs; that, as the legal estate was in trust, it must be commensurate with the trust, and therefore was an estate in fee simple; and that E had an equitable fee simple, which he might lawfully devise.</p>

This was an action of debt on a bond executed by the defendants, and dated Sept. 29th, 1808. Davis, being a prisoner for debt, duly committed to the jail in Concord, in this county, at the suit of the plaintiff, executed the bond, with the other defendants as his sureties, to obtain the liberty of the yard ; the condition of the bond being conformable to the statute of 1784, c. 41.

This was an action of debt, in which the plaintiff declared on a judgment of the Court of General Sessions of the Peace for this county, rendered February, 1806, for the sum of 1348 dollars damages, in his favor, and against the said corporation.

<p>This action was assumpsit on a promissory note, sued by Bond as the endorsee, against Cutler as the maker.</p> <p>At the sittings after "the last October term in this county, it was tried by review before the chief justice, and a verdict found for Bond; having been tried at a preceding term on the general issue, and a verdict having been returned for the defendant, Cutler. — At the last October term, after the chief justice had left the Court, and Parker, J., was on the bench, for the purpose of disposing of one or two causes, in which the chief justice had been counsel while at the bar, the counsel for Cutler filed a petition for a new trial, alleging certain grounds therefor, which will appear in the opinion of the Court, as recited below.</p>

In this action of debt upon a recognizance entered into before a justice of the peace, and of which a partial report was made, (vol. 4, page 641,) the plaintiff had leave, by consent, to amend by filing any new counts, the defendant waiving his demurrer.ϯ [ * 210 ] * The plaintiff accordingly filed three new counts In the first he recites, that, pursuant to a law of the commonwealth, passed March 4, 1790, entitled “An act to regulate the catching of salmon, shad, and…

This was a writ of entry, brought to recover possession of a parcel of land heretofore the property of Bartlet, the bankrupt. The action was submitted to the determination of the Court upon the following facts agreed by the parties.* , The said Bartlet was seised in fee of the premises demanded in the original writ, on the 21st day of September, 1802, and remained so seised, from that time, until he was divested of it in manner hereinafter stated.

<p>The plaintiff, calling himself of Chester, in the county of Rocking ham, and state of New Hampshire, sued this action against the defendant, naming him of Monmouth, in the county of Kennebeck, declared against him in trespass for taking and carrying away one pair of oxen, the property of the plaintiff, and converting them to the defendant’s use, at jIpswich, in this county.</p> <p>The defendant pleads not guilty as to the force, &c.; and as to the residue of the trespass, he pleads in bar, that he was a constable in the town of Monmouth, in the county of Kennebeck, duly chosen and sworn; and that one Moses Joy, of Winthrop, in the same county, sued out of the Common Pleas for said county, a writ of execution in due form of law, against one Gould French, of said Monmouth, directed to the several sheriffs of the counties of Kennebeck, Lincoln, Hancock, and Cumberland, or either of their deputies, or the constable of the town of Monmouth, for 36 dollars 13 cents, which writ was delivered by the said Joy to the defendant, to be duly served and returned ; and afterwards, by virtue of the said writ, he took the said oxen, shown to him by the creditor as the property of the said Gould French, to satisfy the said execution, which he sold, after keeping and advertising them according to law, and applied the proceeds of the sale to satisfy the said execution, of which he made due return; which is the residue, &c., and traverses his being guilty in any other place than in Monmouth, and in due execution of his said office, &c.</p> <p>[ * 230 ] *To this plea in bar the plaintiff demurs generally, and , the defendant joins in demurrer.</p>

<p>Assumpsit for money had and received to the use of the plaintiff.</p> <p>At the trial, which was had upon the general issue, before Seusall, J., at the last April term, the plaintiff's demand * was specified to be the amount of several assessments [ * 231 ] for parish taxes, paid by certain inhabitants of the said parish, and by them requested and directed to be paid over to the plaintiff as their religious teacher, &c.</p> <p>The evidence for the plaintiff was, that for more than twelve years last past he has been the religious teacher of a society of the denomination of Baptists, who assemble for public worship in a meeting-house built for their use more than twenty years since, in Rowley, adjoining the parish of Byjield; and that public worship has been supported and attended by the said society, separately from the other inhabitants of Rowley, for more than thirty years. The plaintiff was engaged in 1797 by the said society as their teacher or elder, in which capacity he has ever since continued, having a salary annually voted him for his services, his agreement with them having been every year renewed. The society have a book in which their doings are recorded, and it appeared therefrom that, pursuant to articles agreed upon in 1794 for the regulation of the society, they have every year since that time chosen a standing committee to manage their concerns, and with, authority to certify respecting members, &c. The taxes demanded were those assessed in the years 1801 to 1807 inclusive. Those assessed previously to the year 1807 were demanded on the 20th of May, 1808; and those for 1807 were demanded on the 28th of February, 1809. The demands were in each case accompanied with certificates signed by the plaintiff as teacher, and by the committee of the society chosen as aforesaid, for the time being, purporting that the persons, whose taxes were demanded, belonged to the said society, and attended their stated meetings for religious worship; and the persons taxer' at the same time requested that their taxes might be paid over to the plaintiff, as their religious teacher. There was also evidence that the said taxes had been paid to the parish collectors. On the 7th of March, 1809, the said parish, at a legal meeting, authorized their assessors to pay over all taxes demanded [ * 233 ] * by members of the parish worshipping with the Baptist society in Rowley, if a decision at law had been made in favor of any unincorporated society.</p> <p>Upon this evidence the judge directed a nonsuit, which was entered, subject to the opinion of the Court; the parties agreeing that, if the nonsuit should be set aside by the opinion of the Court that the action is maintained for any part of the sum demanded, the defendants should be defaulted, and the damages' assessed by the Court.</p>

<p>Where one wrote his name in blank upon the back of a promissory note, uu a guarantor of the payment, and authorized another to write a sufficient guaranty over the name, it was held to be a memorandum in writing signed by the party, within the meaning of the statute of frauds; and parole testimony was received to prove such authority.</p>

Trespass for false imprisonment. The parties agreed to the following facts: The defendants were assessors for the town of Newburyport, duly chosen and sworn, for the year 1805.

<p>A promissory note payable to B, or order, “ on the-day of-, or when he completes the building according to contract,” was holden to be payable at a day certain, and negotiable.</p>

<p>The defendant was indicted for a robbery, at this term, and was tried and convicted at the sittings after the term before Sewall, J., by whom I have been furnished with the following note of the case, which was read by him in Court previously to the prisoner’s being sentenced.</p> <p>“ In the indictment, upon which the prisoner at the bar stands convicted, the allegations are, that with force and arms, in the public highway, he feloniously assaulted- one Peter Tracy, and one silver watch and watch-key, of his goods, &fc., from the person and against the will of the said Peter, in the highivay aforesaid, by force and violence did steal, rob, take and carry away, against the form of the statute ; omitting the allegation heretofore usual in indictments for robbery, of putting in fear.”</p> <p>This omission occasioned some doubt in the minds of the chief justice, and the other justices of this Court, present, when the indictment was preferred by the grand jury, whether the description therein of the offence charged against the prisoner contained all the allegations essential to a technical description of the crime of robbery. Upon the conviction of the defendant, I thought him entitled to have this question examined, as the result might be some mitigation in his punishment.</p>

<p>The breaking and entering a dwelling-house, with intent to cut off an ear of an inhabitant, is not a felony.</p>

<p>Practice. — Depositions taken in term time, the Court not being in actual session, and the opposite party having notice, are received, though taken without an order of Court.</p>

This was a petition, pursuant to the statute of 1788, c. 11, for the review of an action of assumpsit, in which the petitioner had been defaulted at the Court of Common Pleas. To prove the allegations contained in the petition, the petitioner offered his own affidavit, which was objected to by the counsel for the respondent, who insisted that such affidavit was never received, except on the first application, to obtain an order of notice to the opposite party.

<p>This was a writ of entry, pending in the county of Barnstable, in which the demandants count upon the seisin of James Eldredge, their grandfather, and a devise by him to his son, Jesse Eldredge, their father, in fee simple, after the death of Priscilla, widow of the testator, and aver the death of the said Jesse, after his father, and in the lifetime of the said Priscilla, and her death afterwards, and an entry by the tenants thereupon, &c.</p> <p>The action was tried upon the general issue, before Sewall, J., at the last October term in Barnstable county.</p> <p>It appears, from the judge’s report of the trial, that the tenements demanded were parcels of the real estate of which James Eldredge, grandfather of the demandants, died seised, which, since his death, and the death of his widow, Priscilla, have been assigned and set off, by a warrant from the Probate Court for the said county of Barnstable, to the said Esther, who was the widow of the said Jesse Eldredge, but since his death has been married to the said James Forrestal, as her dower.</p> <p>The last will of the demandant’s grandfather, dated February 4th, 1S04, and proved March 22, 1809, containing the devise alleged in the demandants’ count, was given in evidence at the trial; and it. was proved, or admitted, that, after the death of the said testator, his son, the said Jesse, died, leaving the said Esther, his widow, and the demandants, his only children and heirs at law; and that afterwards the said Priscilla died, before the said assignment of dower to the said Esther.</p> <p>Upon this evidence a verdict was taken for the demandants, subject to the opinion of the Court, whether they were entitled to recover; and if not entitled, the verdict was to be set aside, and a verdict entered for the tenants.</p> <p>The action was continued nisi, for the opinion of the Court, which was delivered at this term, (absente Parsons, C. J.,) without any argument at the bar, by</p>

This action was originally brought against Jeremiah Allen, Esq., late sheriff of this county, (after whose decease the defendant came in and took the defence upon himself,) for the default of George Jackson, one of his deputies, in not levying the plaintiff’s execution, issued upon a judgment recovered by him against Richard Mero, administrator of Abraham Patch, upon certain chattels, which Jackson had attached upon the original writ against Patch.

Case for money had and received by the defendant, for the use of the plaintiff, in his capacity of administrator of-Davenport. A trial was had upon the general issue, before Parker, J., at the last November term in this county, and a verdict taken for the plaintiff, subject to the opinion of the Court upon the following facts, reported by the judge who sat in the trial. In 1798, a voyage was undertaken by the defendant and the house of Rawson &f Davenport.

<p>\ public officer, who has money in his hands to satisfy a demand, which one has upon him merely as such public officer, cannot, for that cause, be adjudged his trustee.</p>

<p>A verdict is not to be set aside, although it be given against the positive testimony of a witness not impeached, where there are circumstances in evidence tending to lessen the probability that such testimony is true.</p>

<p>Where one had made a promissory note payable on demand, and the promisee afterwards executed a letter of license to him, in which he covenanted to receive payment in five equal instalments, and that if he sued the promisor, contrary to the tenor and effect of such license, he should be discharged of all demands: The three first instalments were duly paid, and the fourth not being paid, the promisee brought his action upon the note before the fifth was due: — It was held that the action lay, and that the plaintiff was entitled to recover the whole balance due by the note.</p>

Assumpsit for money paid, laid out and expended by the plaintiffs for the use of the defendants. The action was tried upon the general issue before Parker, J., at the last November term in this county.

<p>An executor cannot be charged as the trustee of one, to whom a pecuniary legacy is bequeathed by the will of the testator.</p>

<p>This cause (vide vol. 6, page 277) was again tried at the last November term, in this county, before Sewall, J., and a verdict being found for the defendants, the plaintiffs filed their exceptions to the opinion of the judge, which being allowed by him, the action stood over to this term for its final decision.</p> <p>The action was case upon a policy of insurance, and tried upon the general issue. At this last trial, the plaintiffs proved the loss of the vessel by capture, soon after leaving the port of Cadiz; and that at the time of' her departure it was not known or believed in Cadiz, that the said port was in a state of blockade, and that while the said brigantine was at the said port, and until her departure therefrom, neutral vessels, and especially American vessels, laden with merchandise, were continually arriving at and sailing from said port; whereupon the defendants produced in evidence the decree of the Vice-Admiralty Court, in .Gibraltar, stated in the former report of this cause, and contended that it was conclusive evidence in their favor, and sufficient to preclude the plaintiffs from producing any parole evidence to contradict said decree, and also from maintaining their action.</p> <p>Whereupon the plaintiffs contended that, pursuant to the provisions of the constitution of this commonwealth, the said decree ought not to be adjudged to be conclusive evidence against them , and that by the same they were entitled to the benefit of parole testimony, relative to the existence of the blockade, or to any supposed violation thereof, by the said brigantine, during the said voyage and to the verdict of a jury thereon. And they produced, and moved the judge to admit parole testimony to prove that the port of Cadiz was not blockaded at the time referred to, and that the vessel had not, during her said voyage, violated any other existing blockade.</p> <p>[ * 276 ] * The judge refused to admit such testimony, and instructed the jury, that they were bound in law to consider the decree aforesaid conclusive evidence against the plaintiffs; and that the said decree could not be legally contradicted or invalidated by any parole testimony whatever.</p> <p>This decision of the judge formed the ground of the plaintiffs’ exceptions, and of their motion for a new trial, which came on to be heard at this term.ϯ</p>

<p>A justice of the peace has no authority to take a recognizance from one cnarged as the receiver of stolen goods to the party from whom the goods wore stolen,' to secure to him the payment of the treble damages given by statute of 1784, c. 66.</p>

This was an action of the case, in which the plaintiffs declared that the defendants, being owners of the schooner Morning Star, in consideration that the plaintiffs at the special instance and request of the defendants, would buy the said schooner, affirmed and promised to the plaintiffs, that she was of such length, depth, and breadth, and of the burden of sixty-nine tons ; and that the plaintiffs, giving credit to the said affirmation and promise, at the request of the…

<p>W here A receives, in payment of a debt due him from B, the promissory note of C, payable to A, such note is at the risk of A, unless there be an agreemen to the contiary.</p>

<p>Practice. — Of costs to be taxed when an action is referred.</p>

<p>By the provincial laws in force prior to the statute of 1783, c. 32, which authorized the courts of law to license executors and administrators to sell the real estates of persons deceased for the payment of debts, &c., no certificate from the Probate Court of the necessity of such sale was required; but the same might be made to appear in any other waj'. — Therefore, when an insufficient certificate had been made in such a case 27 years before, and, in consequence thereof, a sale had been licensed by the Court of Common Pleas, the administrator in the subsequent proceedings having conformed to the requirements of the law, the heir at law of the deceased, in an action against the purchaser, for the recovery of the land sold under such license, was not permitted to give evidence that the personal estate of the deceased was sufficient for the payment of all his just debts.</p>

<p>This was an action of the case against the defendant, master of the brigantine Governor Sumner. The declaration -alleges that the defendant, at Liverpool, received on board his vessel three cases of merchandise, in good order and well conditioned, to be by him transported to Boston, for a certain stipulated freight, all and every the dangers and accidents of the seas and of navigation excepted, and there to be delivered in like order to the plaintiffs or their assigns; and the plaintiffs say that the defendant arrived safely at Boston with said vessel, yet that he did not deliver said merchandise to the plaintiffs, or their assigns, but negligently kept and secured the same, and suffered them to become wet and damaged, whereby great part -thereof was lost to the plaintiff.</p> <p>- The action was tried on the general issue, at the last November term, before Parker, J., from whose report of the trial it appears, that the correspondents of the plaintiffs, in Liverpool, shipped on board the brig, of which the defendant was master, three cases of velvets, for which he signed bills of-lading in common form, promising to deliver them to the plaintiffs, or their assigns, in * 298 ] good order and well * conditioned, the danger o'f the seas and navigation only excepted. The brig arrived, after a passage of about three months, with the merchandise, which was duly delivered to the plaintiffs, the consignees.</p> <p>On the part of the plaintiffs, it was in evidence, that the hoops of the cases were rusty, the cases water-lined; and, on opening them, the goods were wet, and filled with particles of salt, but not rotten ; and sundry ¡persons swore that, in their opinion, they would have been rotten, had they been wet, as when opened, as many as twenty days.</p> <p>On the other hand, the defendant proved that the goods were stowed either on or among crates-of ware, well-duUnaged, and .perfectly secure from -the salt, of which, together with coals and bales of goods, the cargo consisted ; and some witnesses swore that they were delivered in perfectly good order, without any marks of damage upon them.</p> <p>The plaintiffs applied to the defendant for a port-warden’s certificate, which they did not obtain ; and sold the goods at auction foi the benefit of the underwriters. The defendant produced no port-warden’s survey, -no protest, no evidence of any damage of the seas or of navigation, nor any evidence to prove a fraud practised upon him by the shippers or packers of the goods in Liverpool.</p> <p>The plaintiffs’ witnesses also swore that the goods would not have received any damage, if stowed as sworn to by the defendant’s witnesses, and that the damage appeared to be recent.</p> <p>The judge left the cause to the jury without any remarks upon the evidence, or any direction in matter of law, except that the bill of lading, signed by the defendant in Liverpool, was not conclusive evidence that the goods were in good order within the cases, when received on board the vessel.</p> <p>At a former term of the Court, this cause was committed to a jury, who did not agree upon a verdict. At the term previous to that, at which the trial above recited was had, it was again committed to a jury, who returned a verdict * for [ * 299 ] the defendant; as did also the jury at the last term, the cause being then tried upon review.</p> <p>The plaintiffs move for a new trial, for the misdirection of the udge in matter of law.</p>

<p>This was an action of assumpsit, founded on a writing, signed by the defendant in the words following, viz. “ The subscriber hereby engages to Messrs. Sturges and Parfcman, that if they will credit Elijah Davis, of Bath, a sum not exceeding five hundred dollars, in case he shall not pay the same in twelve months from this date, I will pay the same myself. October 8th, 1804.”</p> <p>The action was submitted to the opinion of the Court, on a case stated by the parties, from which it appears that, in consequence of the said engagement, the plaintiffs immediately after sold and delivered to Davis merchandise to the value of 500 dollars, and took from him a promissory note for that sum, dated October 10th, 1804, payable on demand, with interest, after six months from the date. Immediately after the selection of the said merchandise, the plaintiffs sold and delivered to the said Davis sundry other goods, to the value of 375 dollars, for which they took his promis- [ * 302 ] spry note of the same date, payable in six months, * without any guaranty. In the course of the year 1805, the plaintiffs received of Davis, by several instalments, the amount of the last-mentioned note, which was cancelled and delivered up to him on the 14 th of December, 1805; at which time, the sum of 111 dollars 58 cents, the balance of that note, together with the interest thereon, was paid ; the two first payments thereon, amounting to 200 dollars, having been made within a year from the date of the writing signed by the defendant. On the 14th of October, 1805, notice was given by the plaintiffs to the defendant, that no part of the sum, for which he had undertaken, was paid by Davis; and payment was demanded of the defendant. On the 17th of December, 1805, the plaintiffs credited the said Davis with other merchandise, to the value of 379 dollars 63 cents, for which he gave his note, without any other security, payable in six months and on the 26th of November, 1806, he paid 200 dollars on ac count thereof, the residue of the last-mentioned note, and the whole of the first note for 500 dollars, being still due.</p> <p>Upon these facts, the questions submitted to the Court were, whether the defendant is liable, and, if liable, whether the payments aforesaid, or any part thereof, ought to be applied towards the discharge of his said contract. If the plaintiffs are entitled to recover, the defendant agreed to be defaulted, and that judgment should be rendered against him, for such sum as the Court should award, with costs. If otherwise, the plaintiffs agreed to become nonsuit, and the defendant was to recover his costs.</p>

<p>This was an action of debt, brought upon the statute of 1796, c. 85, $ 3, to recover of the defendant the penalty of fifty dollars, for undertaking, as a pilot, to carry out of the harbor of Boston the United States frigate Chesapealc, he being commissioned as a pilot for the inward division of pilotage in said harbor, and not for the outward division.</p> <p>The cause came before the Court upon a statement of facts, m which the parties agreed, that, on the 1st of July, 1809, the plaintiff was a branch pilot for the outward division of pilotage for the harbor of Boston, duly commissioned and sworn; and the defend ant was a branch pilot for the inward division, duly commissioned and sworn, but not for the outward division ; that, on the day aforesaid, the United States frigate Chesapealc being in the harbor of Boston, and on pilotage ground, the defendant, at the request of the commander of the said frigate, who preferred the defendant to any other pilot, undertook to pilot, and did pilot, the said [*307 j frigate out of the said harbor, and * received his fees therefor; the plaintiff, an experienced pilot for the outward division of pilotage, being then ready to perform the said service.</p> <p>If, upon this statement, the Court should be of opinion that the plaintiff was entitled to recover the penalty demanded in this action, it was agreed that judgment should be rendered for him accordingly ; otherwise that he should become nonsuit, and costs adjudged to the defendant.</p>

<p>Whether in any case the party, who tenders an immaterial issue which is found against him, can have a repleader awarded on his motion : Qutere.</p> <p>Where land had been conveyed in payment of a pre-existing debt, which was cancelled at the time of the conveyance, and it was agreed, by deed, that the land should be appraised, as soon as convenient, by three disinterested men, after the manner of land taken on execution, and if the value of the land should be less than the debt cancelled, the grantor would pay the difference in six months from the date of the agreement; after the expiration of the six months, the grantee nominated an appraiser, and the grantor refusing, he was held liable to an action of debt for the penalty of the agreement.</p>

<p>This was an action of assumpsit, brought to recover the proceeds of eighteen hogsheads of molasses, alleged to have been shipped by the plaintiff at St. Vincents, and consigned to the defendant for sale. There was also a count for 1000 dollars, money had and re ceived by the defendant to the plaintiff's use.</p> <p>Upon the trial of the action before Parker, J., at the last November term in this county, the plaintiff offered certain evidence to prove that in November, 1807, one Elias Williams was at Wilmington, in North Carolina, (where the plaintiff resides,) in the schooner Fair Trader, of which he was master, and one Moses Wallis, of Salem, was owner; that the plaintiff put on board said vessel a quantity of lumber, to be carried to Barbadoes, and delivered to his consignee there, on payment of certain freight, stipulated in the bills of lading.</p> <p>* The vessel did not arrive at Barbadoes, but was [ * 320 ] driven by contrary winds to St. Vincents, as stated by 'Williams, the master. At this latter place, he sold the whole cargo to one Dunham, receiving part of his payment therefor in the produce of the island, with which he sailed in January, 1808; and after stopping at Havanna, arrived at Charleston, South Carolina, in April following. The plaintiff went there, and attempted to get from Williams the proceeds of said cargo, or compensation therefor, but could obtain nothing. Williams left the remaining sum due for the said cargo in Dunham’s hands, at St. Vincents, with orders to ship it in molasses to the defendant, as soon as the new crops should come in, and the price become lower. It appeared that the molasses in question was afterwards shipped, in pursuance of this order.</p>

<p>The declaration, which was in case, contained three counts. The first was a general indebitatus assumpsit for sugar sold and delivered. The second count alleged that the defendants, at Boston, on the 9tfi day of December, 1807, in consideration that the plaintiffs had, on that day, sold and delivered to them ninety-two boxes of white sugar, and ninety-eight boxes of brown sugar, at their special request, promised to pay them therefor the sum of 2965 dollars 34J cents in three months, and another sum of 2965 dollars 34J cents in four months, and to deliver to them, within a reasonable time, certain certificates of debenture of the United States, so called, of the value of 1929 dollars 68 cents. The third count was 'similar to the second, except that it alleged the promise, as to the last-mentioned sum of 1929 dollars 68 cents, to be to pay that sum in money in four months.</p> <p>The defendants pleaded the general issue to the first and third counts, and to the promises to pay money, alleged in the second count, which was joined by the plaintiff.</p> <p>And as to the promise to deliver the certificates of debenture, they pleaded in bar, that the certificates, mentioned in the declaration, were to be granted and issued by the officers of the customs on the exportation of the same sugars, mentioned in the declaralion, from the United States, and could not be obtained, unless the same should be exported ; that within a reasonable time for obtaining and delivering the said certificates, after the said 9th [ * 826 ] of December, * viz. on the 22d day of the same December, the defendants did all things necessary and proper on their part to be done, in order to export the same sugar, and to procure such certificates to be issued j and that on the same day a certain act or law was passed and enacted by the congress of the United States, entitled “An act laying an embargo on all ships and vessels in the ports and harbors of the United States; ” by means of which act, the same having continued unrepealed, and in full force at the time of the commencement of this action, the defendants were then, and continually afterwards, until the commencement of this action, prevented and hindered from exporting the said sugar, and from obtaining the said certificates of debenture, and thus, by force of the said law, and without any act or default of themselves, they have been and yet are wholly unable to deliver the said certificates of debenture to the plaintiffs; aud. this, <&c. ; wherefore, &.C.</p> <p>To this plea in bar the plaintiffs replied, that long after the passing of the said act, and notice thereof had by the defendants, viz. on the 31st day of the same December, the defendants demanded of the plaintiffs the delivery of the said sugar, and the plaintiffs, from that day, until the 16th day of January following, did deliver the same, in virtue of the sale thereof made to them as aforesaid. And this, &c.; wherefore, &c.</p> <p>To this replication the defendants demurred generally, and the plaintiffs joined in demurrer.</p> <p>The action proceeded to trial before Parker, J., on the issue of fact joined ; and the jury returned their verdict, that the defendants never promised, &c., subject to the opinion of the Court, whether, upon the evidence produced in the case, the action, as it respects the third count, could be maintained.</p> <p>The plaintiffs, to maintain the issue on their part, proved that the sugars- mentioned in the count were delivered by them [ * 372 ] to the order of the defendants, between the first and * sixteenth days of January, 1808 ; and there was no dispute about the price, which was according to the sums mentioned in the count.</p> <p>The defendants read in evidence a receipt, signed by the clerk of the plaintiffs, for the first sum mentioned in the declaration, dated March 15th, 1808; and also another receipt, signed by the same person, dated April 14th, 1808, for the second sum mentioned, which last receipt was in the following words, viz. “ Received of Fettyplace & Watson twenty-nine hundred and sixty-five dollars 19 cents, being the balance of the within bill, exclusive of the amount of the debentures.” And it was agreed that the last sum mentioned in the declaration was to have been paid in debentures ; which were not paid within the time agreed between the parties, but had been paid since the commencement of this action.</p> <p>The judge directed a verdict for the defendants, on the ground that an express contract was proved, different from that alleged in the declaration.</p> <p>The cause was argued at the last March term, by Otis and Welsh for the plaintiffs, and Dexter and Jackson for the defendants; the counsel confining themselves principally to the question arising under the demurrer.</p>

The writ in this case was a scire facias commenced in the Court of Common Pleas, praying for an execution upon a recognizance, entered into by the original defendant to the plaintiff before a justice of the peace, conditioned to appear in the Municipal Court, and there to answer to the plaintiff, on a charge of being the putative father of her bastard child. The writ alleges that the defendant was called to appear at the Municipal Court, but made default.

<p>By the final judgment, mentioned in the statute of 1784, c. 10, § 3, within one year from which scire facias must be served upon bail, is intended the first judgment, oa which the plaintiff may sue out an execution; whether such judgment be rendered in the Common Pleas or in this Court; and a judgment on review is not intended.</p>

<p>A cargo was insured from Boston to Rotterdam and Amsterdam. On the outward passage, the master received notice of the British orders in council, declaring the ports of France, &c., in a state of blockade, and in consequence thereof proceeded to Plymouth, in England, for the purpose of procuring intelligence. While at this latter port, he was informed of the French decrees, which declared all vessels, &c., good prizé, which had been at a British port By the laws of England, at that time, he could not clear for a port in Holland without leaving a part of the cargo. Upon this he went to London, where the cargo was discharged for the benefit of all concerned. As soon as the assured heard that the cargo was unlading in London, they abandoned the cargo to the underwriters on the ground of a total loss of the voyage. It was held that the going to Plymouth was no deviation ; that the prohibition there to export a part of the cargo to Holland was not an arrest or detainment by princes, &c.; that the going from Plymouth to London was a deviation.; and that the underwriters were not liable, as for a loss of the voyage.</p>

<p>This was a special writ of entry sw disseisin, brought to foreclose a mortgage, and was submitted to the determination of the Court on the following facts agreed by the parties: —</p> <p>On the first day of April, 1805, Uriah Cotting and others were seised in fee of the demanded premises, and on that day conveyed the same to the demandants, who on the same day conveyed the same in fee and in mortgage to the said Cotting and others, to secure the payment of three several promissory notes given for the purchase money, viz. one note for 690 dollars, and two notes for 1035 dollars each. On the second day of the same April, the demandants executed a deed of bargain and sale of the same premises to Artemas Newhall and Leavitt Lincoln, who on the same day executed to the demandants a deed of mortgage of the premises, conditioned to save the demandants harmless from the notes and mortgage which they had given to Cotting and others. On the twenty-seventh of March, 1806, Leavitt Lincoln conveyed one undivided moiety of the premises to Porter, the tenant, who undertook to discharge and pay one half of the money due [ * 356 ] to Cotting and others. The tenant * has paid all the money due to Cotting and others, excepting 380 dollars, and excepting also one year’s interest on one of the notes for 1035 dollars, amounting together to 442 dollars 10 cents. The other undivided moiety of the premises was conveyed by Artemas New-hall to Robbins and Inman, who undertook to pay one half part of the money due on said notes to Cotting and others. Cotting having become proprietor of the whole debt due upon said first mortgage by releases from his partners, on the 15th of October, 1807, conveyed to the tenant, for his account and risk, the two notes of 1035 dollars, deducting the 442 dollars 10 cents, paid as above mentioned. At the time when he conveyed said notes to Porter, the tenant, the said Cotting held said mortgage deed; and afterwards assigned it to Chelly and Martin by Porter’s direction.</p> <p>Taylor and Wilson now demand the w'hole of the mortgaged prem ises of Porter, who never had any title or claim to more than one undivided moiety, and who never was in possession, except as tenant in common with some other person or persons.</p> <p>The demandants found their claim upon the aforesaid payment of 442 dollars 10 cents. The tenant claims to hold one undivided moiety of the demanded premises under said Lincoln. And it was agreed by the parties that if the Court should be of opinion that the demandants can maintain this action under the above circum stances, and that they are entitled to possession of the demanded premises, as mortgagees, for condition broken, judgment should be rendered, as in cases of mortgage, for the above sum of 442 dollars 10 cents, with interest; otherwise that the demandants should become nonsuit, and the tenant recover his costs.</p>

This was an action of the case in assumpsit. The declaration contained five several counts. A trial was had before Parker, J., upon the general issue pleaded to all the counts, and a general verdict upon all the counts found for the plaintiff. The defendants moved in arrest of judgment, because the last count was bad, and the verdict being found upon all the counts, judgment ought not to be rendered upon it.

<p>Where an action for money had and received was submitted, by a rule of the Court to referees, and in the rule the plaintiff agreed that he had no other demand against the defendant; the referees reported that the defendant still held sundry notes, the proceeds of which, when collected, would belong to the plaintiff, and gave a list of them, such agreement is no bar to a future action for the said proceeds when collected.</p>

<p>This was a popular action brought to recover two several penalties, alleged to be forfeited by the defendant, by force of the statute of 1783, c. 55, against usury, for receiving of one James Rounds usurious interest on two several corrupt usurious contracts.</p> <p>The defendant pleaded the general issue, upon which a trial was had before Sedgwick, J., November term, 1809.</p> <p>At the trial no evidence was produced but of one contract between the defendant and Rounds; and as evidence in support of the action, and to prove the corrupt contract stated in the plaintiff’s first count, he offered a deed from Rounds to the defendant, conveying sixty-two acres and a half of land, which he also offered .o prove were worth, at the time of the conveyance, sixteen hundred dollars, and that the defendant, in fact, paid therefor no more than three hundred and fifty dollars. The defendant had, by a memorandum in writing not under seal, agreed with Rounds, that if the latter would pay the defendant five hundred and twenty-two dollars ninety-seven cents, at two instalments [ * 362 ] * the last of which was within three years from the date of the conveyance, he would convey to Rounds all the right to the land which he, the defendant, had under Rounds’s deed to him; the plaintiff then offered to prove that the contract, although disguised as a purchase of, and a contract to reconvey land, was, in truth, a mere loan of money upon a usurious agreement. He also stated that, except the said conveyance of land to the defendant, he had no evidence to prove that the defendant had received any thing whatever of Rounds, upon or towards the said loan.</p> <p>Whereupon the judge directed a nonsuit, with liberty to the plaintiff to move to have the same set aside, and a new trial granted, if the said direction should, by the Court, be determined to be wrong.</p> <p>At the last May term, in this county, Holmes, of counsel for the plaintiff, moved the Court to set aside the nonsuit; and he urged that this was an indirect but gross attempt to evade the wholesome provisions of the law against excessive usury. Here was a loan of money, and a conveyance of land made as a pledge to secure the repayment, with usurious interest. Pursuant to the contract, the pledge has become forfeited, and the defendant has an absolute title to the land. If he is not answerable in this action, the law seems to have furnished no method in which oppression of this kind can be reached. The forfeiture of the land is equivalent to the payment of the money by Rounds. Although originally intended only as a security for the payment of the money and the usurious interest agreed upon, yet, being forfeited, and the whole power of redeeming it gone from Rounds, it has become payment.</p>

<p>Assumpsit for work and labor performed by the plaintiffs, (who are inhabitants of Vassalborough, in the county of Kennebeck,) about the new jail lately erected in this county. The writ was sued out of the Common Pleas for this county, and bore test of the first justice thereof.</p> <p>The defendant suggested that Joseph North, Esq., the first justice of the Common Pleas, and in whose name the writ was tested, was an inhabitant of the county of Kennebeck, and a party to the action, and for this cause moved the Court to abate the writ.</p> <p>At the last May term in this county, Perley, for the defendants, cited the fifth article of the sixth chapter of the constitution of this commonwealth, which prescribes that “ all writs issuing out of the clerk’s office of any of the courts of law shall be in the name of the commonwealth of Massachusetts; they shall be [*462] under the seal of the * court from whence they issue; they shall bear test of the first justice of the court to which they shall be returnable, who is not a party, and be signed by the clerk of such court.”</p>

<p>A ship is insured from the United, States to Cork or Liverpool, either or both; after passing Cork, contrary to the intentions of the master, so far that it was impracticable to reach it in the then state of the wind and weather, although it was practicable to go to Liverpool, the master bore away for Dublin, to gain information of the state of the markets, and in the course thither a loss was incurred. It was held that this was no deviation, and that the underwriters were liable for the loss.</p> <p>Of the adjustment of a general average upon a valued policy.</p>

<p>In debt for an escape of one committed upon execution, the plaintiff is entitled to recover the whole sum for which the prisoner was held.</p>

<p>A conveyance of land, when recorded, relates back to the time of its execution ; and is evidence of a seisin in the grantee from that time against ail persons, except a subsequent purchaser from the grantor without notice.</p> <p>A trespass on the land of another will not amount to an ouster, without a know! edge thereof by the owner, either express or implied.</p> <p>Where one has pleaded the general issue to a writ of entry, it is not competent to him to prove himself tenant at will of the land demanded.</p> <p>A release to one not in possession, if made for a valuable consideration, will be construed to be any other lawful conveyance, by which the estate might pass.</p>

<p>This was a writ of error brought to reverse a judgment of the Court of Common Pleas for this county, upon an appeal from the judgment of a justice of the peace, before whom the action was commenced; in which the defendant in error was original plaintiff, and the plaintiffs in error original defendants.</p> <p>The action was trespass for breaking and entering the close of the plaintiff in Limington, and prostrating two rods of his fence.</p> <p>The defendants severally pleaded not guilty, with a reservation of liberty “ to file any brief statement, or give any justification under this issue.” Issue being joined, the judgment of the justice was against the defendants, who appealed therefrom to the Common Pleas, and the cause was tried in that court upon the same issue.</p> <p>At the trial, after the plaintiff had proved the trespass as alleged, the defendants offered to prove, by the testimony of witnesses, that the locus in quo was a private way, and that it had been uninterruptedly used and occupied as such, by the defendants and others, for twenty years next before the commencement of the plaintiffs’ action The court refused to admit the evidence, and directed the jury, that, in all actions of trespass quare clausum fregit, originally commenced before a justice of the peace, if the defendant intends to contest the plaintiffs’ title to the close wherein the supposed trespass is alleged to have been committed, or to show a title to the same in himself, he must inform the justice thereof by a special plea, or in some other way; in which case the cause ought to be removed to the Court of Common Pleas; otherwise he will have no right to contest the plaintiff’s title, or to justify by setting up a title of his own.</p> <p>* The jury returned a verdict for the plaintiff, and the [ * 386 ] defendants tendered a bill of exceptions to the opinion and direction of the court, and the same was allowed and sealed by the first justice.</p> <p>The errors assigned were in substance the refusal of the court to receive competent evidence of a right of way offered by the defendants, and the misdirection of the court to the jury.</p>

<p>Trespass for taking and carrying away a calf, and a chaise and harness, the property of the plaintiff.</p> <p>The case came before the Court upon an agreed statement of facts; from which it appears that the plaintiff’s property in the chattels taken, and the taking and carrying of them away by the defendant, are admitted ; that the defendant, being a deputy sheriff, by virtue of two several warrants of distress, issued by a justice of the peace for this county against the plaintiff, for neglect of duty as a training soldier in the militia, took the said chattels in Falmouth, where the plaintiff then lived; that he put his own horse to the chaise, and, taking another person with him, rode out of the town in which he had seized them, making a considerable circuit; that he afterwards sold the chattels in North Yarmouth, and re- [ * 389 ] turned upon the warrants of * distress, that, having kept the chattels seized four days, and the sums ordered by the warrants to be levied of the plaintiff not having been paid, nor the chattels otherwise redeemed, he sold the same at public auction to the highest bidder, “ having given twenty-four hours’ previous notice of the time and place of sale, according to law.”</p> <p>Upon these facts, it was agreed, that, if the Court should be of opinion that the defendant could be permitted to introduce parole evidence to contradict his returns upon the warrants, and to prove that he advertised the chattels at North Yarmouth forty-eight hours before the sale ; and if the Court should also be of opinion that all the proceedings of the defendant were correct, and amount to a legal justification — the plaintiff should become nonsuit; and if otherwise, the defendant should be defaulted, and the plaintiff’s damages be assessed by the Court.</p> <p>The cause was argued at the last May term in this county, by Longfellow for the plaintiff, and E. Whitman for the defendant.</p>

<p>Trespass for taking and carrying away a horse, the property of the plaintiff.</p> <p>This action came before the Court upon a case stated, containing similar facts with those in the action of Purrington * vs. Loring, immediately preceding. In addi- [ * 393 ] tian to those facts, it was also agreed, in the present case, that the defendant sold the horse at auction, but the purchaser, discovering some blemish which he supposed would injure the horse, requested to be released. To this the defendant, after some resistance, at length consented ; and again putting up the horse for sale, he was bid off to another person for a smaller sum than was bid on the first attempt to sell him. It was not more than twenty minutes from the time of the first sale, until he was put up the second time, and the same persons were present during the whole transaction. Longfellow for the plaintiff.</p>

<p>The facts in this action, which was trespass for breaking and entering the plaintiff’s close, subverting his soil, carrying away his logs, &c., and which came before the Court on an agreed statement, are sufficiently disclosed by the chief justice in delivering the opinion of the Court as follows: —</p>

<p>This was a writ of scire facias, sued by the plaintiff to have execution upon a recognizance taken before a justice of the peace for this county, in which the defendant recognized as one of the sureties to the plaintiff, for the appearance of one Hugh Prince at the then next term of the Court of Common Pleas, to answer to the plaintiff upon her complaint against him for getting her with child, alleging that the child, of which she was then pregnant, if born alive, would be a bastard.</p> <p>The defendant prayed oyer of the recognizance, and thereupon, by leave of the court below, pleaded five several pleas in bar, all of which resulted in demurrers or in issues in law on the record specially joined. As no decision was made on any of these, it would be useless to state them particularly; it being settled by the court that the justice was not authorized to take the recognizance in question.</p> <p>The cause was submitted without argument, and the opinion of the Court was delivered by '</p>

This was an appeal from a decree of the court below, proving, approving, and allowing the last will and testament of Peter Thatcher, Esq., late of Gorham, in this county, counsellor at law. The appeal was claimed in behalf of the heir at law. The sanity of the testator being the question, an issue was formed and tried by a jury. The executors offered two members of the Maine Missionary society to be sworn as witnesses.

<p>This was an information filed by the attorney-general, May term, 1808, for an intrusion by the defendants into certain lands of the ci mm on wealth.</p> <p>The information is alleged to be brought in pursuance of a resolve of the legislature, passed February 24th, 1807, directing the attorney-general or solicitor-general to institute an inquest of office, or any other process in law, against the defendants, to ascertain the title in tns commonwealth to revest the possession of the land on both sides of the Androscoggin river, above and northerly of a south-west line drawn on the westerly side of said river, from the uppermost part of the upper falls in the town of Brunswick; and on the east side of said river northerly of a north-east line drawn from said river, five miles above the said uppermost falls, extending up the said river to the limits of the commonwealth, holding the breadth of four miles on the west side of said river, and extending to the lands belonging ■.o the Plymouth company, and Kennebeck river on the east side; unless the Pejepscut proprietors, or those to whom any part of said 'ands were divided, should, within six months from the passing of the said resolve, make, execute, and deliver good and sufficient deeds to all the settlers, agreeable to the report of commissions appointed by virtue of a resolve of March, 1801; and also a deed to the commonwealth, to be made and delivered agreeably to a report of certain referees ; and likewise pay to certain commissioners therein named a sum of money mentioned, with interest.</p> <p>And the attorney-general further alleges that six months have elapsed since the passing of said resolve, and that neither the said proprietors, nor those to whom any part of said land was divided, have, within said term of six months, made and delivered such deeds to the settlers, and to the commonwealth, nor paid to the said commissioners the said money and interest. Whereupon he informs the Court that * the late province of Mas- [ * 400 ] sachusetts Bay, within forty years last past, viz. on the fourth day of July, 1776, was seised and possessed of a certain tract of land in the said county of Cumberland, called province land, bounded north-easterly by Androscoggin river, south-westerly by a curve line parallel thereto and four miles distant therefrom, southeasterly by a line drawn from Brunswick falls westerly to said line, and northerly by a line drawn west from the uppermost part of twenty-mile falls to said curve line ; and the said province continued so seised, until succeeded by the commonwealth, /who ought now to be in the actual and undisturbed possession of the same. Nevertheless, the Pejepscut proprietors have, within the term of twenty years past, with force and arms, illegally entered upon the said tract of land, and disturbed, and still continue to disturb, the commonwealth in the possession of the same, and have taken, and still continue to take, the profits thereof, in contempt of the said commonwealth, and against their authority and laws.</p> <p>The defendants, May term, 1809, pleaded, 1. The general issue of not guilty, which was joined.</p> <p>2. In bar of the information, they set forth, in hcec verba, a former information and process respecting the same land, sued and prosecuted against Josiah Little, in which, after divers continuances and proceedings, the said Pejepscut proprietors, with the consent of the attorney-general, became parties to the said suit; and thereupon a rule of reference was entered, pursuant to a resolve of the General Court, by the attorney-general for the commonwealth on the one part, and by the said Pejepscut proprietors and the said Josiah Little on the other part. The resolve granting this authority is recited in the proceedings, and requires certain stipulations and conditions on the part of the said proprietors ; particularly that they should lay oi t and sell to each and every settler then on the land that might be awarded to said proprietors and remain undivided, one hundred acres of land, to be so laid out as should best [ * 401 ] include *the improvements of said settlers, and be least injurious to the adjoining lands, for so much money, and on such terms as three commissioners, to be appointed by the governor and council, should judge reasonable, which commissioners were also to settle all disputes respecting the location of the lots for the settlers. The rule of submission then recites, that the said Little and the said proprietors consented to the said stipulation and conditions required by the said resolve; and thereupon the commonwealth, and the said proprietors, and the said Little, did submit to the determination of Levi Lincoln, Samuel Dexter, junior, and Thomas Dwight, Esquires, the said suit or inquest of office, and the claims and estate which the said proprietors and the said Little, or either of them, or any person claiming under them, had, or which the commonwealth had, in and to two tracts or parcels of land lying on each side of Androscoggin river, bounded, &c.; — This rule contained the following, among other conditions, viz. that if the proprietors should neglect or refuse to comply with or perform their stipulations aforesaid, according to the true meaning and effect thereof, that then the said rule, or any report that might be made pursuant thereto, and any judgment that might be rendered thereupon, should be absolutely null and void, and of no effect whatever, either in court or elsewhere, if the commonwealth should at any future time choose to consider it so; and that the nullity of the same act, resulting from such nonperformance of the said stipulations, might be given in evidence on any issue between the said commonwéalth and any person claiming under the same, and the said Little, the said proprietors, or any person claiming under either of them ; — It having been agreed, by the parties to the said suit, that the report of the said referees should be made to this Court, sitting in any county, and judgment rendered thereon as of the then next preceding term in the county of Lincoln, the record further contains, that the [ * 402 ] * said referees made a report at the term of this Court holden at Boston, in the county of Suffolk, February, 1800, by which they awarded, that the title and claim of the said proprietors ought to be considered as extending, and that they shall have and hold, subject to the provisions and regulations stated in the said rule respecting settlers, all that tract of land situated in the county of Lincoln, bounded, &e. Also, one other tract of land, situated in the county of Cumberland, bounded, &c., being the same tracts which are mentioned and described in the said rule; These tracts the referees awarded to the said proprietors, upon condition that they should, within six months from the date of the award, by a deed of release made to the commonwealth, sufficient, in the opinion of the Supreme Judicial Court, or of the attorney-general, to bar the said proprietors from any future claims to land northerly of the said northerly boundaries of the said two tracts of land respectively, and to confirm the same to the said commonwealth, release all their the said proprietors’ claims, right and title in and to the said land situate northerly of the boundaries aforesaid to the commonwealth, and should lodge the same deed within the said term, in the clerk’s office of the same court, or with the attorney-general, for the use of the government: — Which said report was accepted by the same court, and it was thereupon ordered by the same court that judgment should be rendered according to the said report, as of the then preceding term of this Court, holden at Augusta, July 16,1799 : — It was therefore considered by the court, that the title of the said Josiah Little, and of the said Pejepscut proprietors, and of all persons claiming under them, and of either of them, in and to the land described ip the said report, be confirmed to them, their heirs and assigns, agreeable to said report. The defendants then aver that the said judgment in the said record mentioned yet remains in full force, and not reversed or annulled; that the tract of land described in the said report, lying in said county of Cumberland and the * tract of land de- [ * 408 ] scribed in this information are one and the same land, and not different; that the said proprietors mentioned in the said record and those mentioned in this information are one and the same, and not different; and that the estate and title claimed and set up by the commonwealth in and to the premises in said record mentioned, and the estate and title claimed and set up by the commonwealth in and to the premises described in the present information, were one and the same, and not different; all which they are ready to verify: wherefore they pray judgment if the said attorney-general, in behalf of said commonwealth, his information aforesaid thereof against them ought to have or maintain, &c.</p>

<p>Iron stoves fixed to the brick work of the chimneys of a house are a part of the house, and pass with it, on the extent of an execution upon it.</p>

<p>It is not usurious in a banking company to take their notes payable in Boston money, and, upon renewal of such notes, to take a premium equal to the difference between that and other money.</p> <p>Nor is such a transaction within a prohibition in their charter to use their moneys, &c., in trade or commerce.</p>

This was an action of covenant broken, brought by the plaintiffs, as administrators of the goods and estate of Thomas Minot, deceased, upon a charter-party of affreightment, dated the 3d of November, 1807, whereby the defendant hired of the said Thomas and others the brig Fortitude, on a voyage from Portland to St. Croix and back to the United States, thence to St. Croix and back to the United States twice.

The persons summoned in this case, as the trustees of the defendant Weeks, having severally sundry demands against him, and having, as his sureties, executed bonds to the United States, for duties on merchandise imported by him, had received from him a conveyance of sundry effects to be by them appropriated for discharging their demands and indemnifying them against those bonds Afterwards, those effects being apprehended to be insufficient for the purposes for which they had…

<p>A poll parish is within the statute of 1786, c. 10, § 5, which provides that the remaining part of a town, from which a parish is taken, shall constitute the first parish.</p> <p>A parish may be known by several corporate names.</p>

<p>In an action on a covenant of warranty of lands brought by one who has assigned his interest in the lands to another, the declaration must show that the plaintiff is answerable to his assignee.</p>

This was an action of trespass for breaking and entering the close of the plaintiffs. The parties agreed to submit the cause to the determination of the Court upon certain facts stated. If thereon the Court should be of opinion that the plaintiffs were entitled by law to maintain the action, judgment was to be rendered in their favor for a sum agreed as damage, and for costs; otherwise they were to become nonsuit, and the defendants to have judgment for their costs.

Error coram, nolis, to reverse a judgment of this Court, rendered at the last May term of this Court in this county, in favor of the defendant in error, original plaintiff.

<p>Case by the endorsees against the endorser of a bill of exchange. The declaration alleges that Lemuel Weeks 8f Son, at Portland, on the 13th of August, 1807, drew their bill of exchange on the house of Lodges Tooth, in Liverpool, for £945 sterling, payable to the defendant or his order at sixty days’ sight; that the defendant endorsed the bill to the plaintiffs, who, on the 12th of October, presented the same for acceptance; that, the drawees refusing to accept the same, it was duly protested, of which the defendant had notice; that, on the 14th of December, the plaintiffs presented the bill for payment, which being refused, it was duly * protested for non-payment, of which the defendant had [ * 450 ] due notice, and thereby became liable, &c.</p> <p>In the second count on the same bill of exchange, the plaintiffs allege an endorsement by themselves, and sundry posterior endorsements, and that the bill being presented for acceptance, and after-wards for payment, by the last endorsee, was duly protested for nonacceptance and for non-payment; that afterwards, on the 16t.h of December, one John Copper, at the city of London, paid the same for the honor of the plaintiffs, as second endorsers thereof; that the plaintiffs, on the 2d of March, 1808, received notice thereof, and paid the said John Copper the sum so paid by him, with interest; of all which the defendant, on the 11th of the same March, had notice, and thereby became liable, &c.</p> <p>There is a third count for 6000 dollars, had and received by the defendant to the use of the plaintiff.</p> <p>The cause came before the Court upon an agreed statement of facts, from which it appears that the bill of exchange declared on was drawn, endorsed, presented for acceptance and afterwards for payment, duly protested in each case, and taken up and paid by Copper for the honor of the plaintiffs, as alleged in the declaration ; that the defendant endorsed the bill for the accommodation of Weeks Son, and to give it a greater credit, he having no interest in it, and no compensation for his endorsement; that the drawers had no funds in the hands of the drawees; that the drawers, about the time of their failure, which was on the 25th of December 1807-, made their promissory note to the defendant for 20,000 dollars, to enable him to secure sufficient property of theirs to indemnify himself against his liabilities on their account; upon which, however, he did not obtain enough to indemnify him against all his said liabili ties, exclusive of his endorsement, for which this action is brought; that no notice was given by the plaintiffs to the defendant, or to the drawers of the bill, of the protest for the non-accept- [ *451 ] anee or the non-payment of the bill, until the * 2d of March, 1808, when the plaintiffs at Philadelphia, where they owell, wrote advice to both the said parties of the protest for non payment, which notice was received by the defendant on the 11th of March, the plaintiffs not having, until the said second day of March, received any notice of the non-acceptance, or of the nonpayment, although a number of vessels sailed from Liverpool to various ports of the United States in the months of October, November, and December, 1807, by which letters were brought and received, some of which were dated the 13th of October, and others on the 3d and 5th of November, and were received in December; that the defendant wrote an answer to the plaintiffs’ letter of the 2d of March, in which he expressed hopes of recovering property of the drawers sufficient to indemnify the plaintiffs, acknowledged his accountability to them for the amount of the said bill, and engaged to do all that was in his power to make payment.</p> <p>It was agreed by the parties that if, upon the facts stated, the Court should be of opinion that the plaintiffs were entitled to recover, judgment should be entered for them for the amount of the bill, with customary charges, &c.; otherwise they should become nonsuit, and the defendant recover his costs.</p>

<p>Where a merchant, in pursuance of a previous general agreement, had shipped goods to one on credit, who, after the shipment, became insolvent, the shipper had still a right to stop the goods in transitu; the credit contemplated being predicated on the supposed ability .of the consignee to pay at the expiration of the credit.</p> <p>The right of stopping in transitu goods shipped on the credit and risk of the consignee remains until they come into his actual possession at the end of the voyage ; unless he shall before have sold them, and assigned the bills of lading to the purchaser.</p> <p>And in all cases, where an actual possession of the consignee, after the end of the voyage, is provided for in the bills of lading, the right of stopping in transitu remains after the shipment, whether the consignee be the hirer or owner of the ship, or the shipment be made on a general ship. — But if the goods are shipped for a foreign market, and are not to be transported to the consignee the right of stoppage ceases on the shipment</p>

<p>This was an action of trespass, for breaking and entering the plaintiff’s close, situate in Brunswick, in this county, and cutting down his trees, subverting his soil, &c.</p> <p>The action was submitted without argument to the opinion of the Court, as to a part of the trespass charged, upon a case stated. The facts in the case will be found recited by the Court in their opinion, as the same was delivered at this term by</p>

<p>A sheriff is answerable to a judgment creditor for the thirty per cent, interest given by the statute of 1783, c. 44, § 3, when his deputy refuses to pay over moneys received on execution, as well as when the sheriff himself refuses.</p>

This was an action of assumpsit, commenced November 1, 1808, to recover the sum of 158 dollars 32 cents, for the support of a pauper, from November 1, 1806, to November 1, 1808, at 1 dollar 33 cents per week, and for 24 dollars for .clothing, furnished the pauper during the said term; the plaintiffs alleging the pauper’s legal settlement to be in Monmouth. * This action was tried at an adjournment of the last [ * 468 ] October term, in this county, before Thatcher, J., whose…

<p>At the last term this action was submitted to the determination of referees, under a rule of this Court. The referees made their report at the present term, in substance that the plaintiff recover ten dollars damage, with costs of Court.</p> <p>The report being accepted, the plaintiff moved that full costs be taxed for him, notwithstanding the provisions of the statute of 1807, c. 122, § 2, which enacts that “if, upon any action originally brought before the Court of Common Pleas, judgment shall be recovered for no more than twenty dollars debt or damage, in all such cases the plaintiff shall be entitled for his costs to no more than one quarter part of the debt or damage so recovered.”</p>

Assumpsit bn a promissory note of the following tenor, viz. “ Vass. 23, 3 mo. 1803. Value received, I promise to pay Bartholomew Taber, or order, seventy-five dollars, in three years from date, interest. Caleb Hanson, Jun.—Attest. Elihu Hanson.” On the back of the note were the two following endorsements, viz. “ I am not to be holden; for value received, pay the contents to Nathaniel Parker. Bart.

<p>The limitation and settlement act (stat. 1807, c. 74) does not extend to actions tried on review.</p>

<p>Upon the suggestion of the counsel for the respondent in a libel for a divorce, that she was insane, the Court admitted the counsel to plead to the libel in the name of the respondent.</p>

In a case stated by the parties in this action, it was agreed that the defendant Dillingham is a deputy sheriff for this county; that the original writ in the action was directed to the coroners of the county, or any of them, and was served on all the defendants by Daniel Evans, a coroner for the county, duly qualified, and also a deputy sheriff of the same county, occasionally executing the duties of each of those offices.

<p>A petition for partition lies only for a person who has a seisin in fact of the premises.</p>

<p>The provision of the statute of 1807, c. 122, limiting costs to one quarter of the damages recovered in actions commenced in the Common Pleas, where the damages do not exceed twenty dollars, does not extend to actions of trespass quare clausum, fregit..</p>

<p>This was a writ of scire facias against the defendant, as bail for one John H. Dearborn.</p> <p>The plaintiff alleges, in his writ, that he recovered judgment against Dearborn, at the October term of this Court, in the year 1809, for 111 dollars 83 cents damage, and 105 dollars 18 cents costs; that execution issued thereon on the 21st day of the same October, which was made returnable in six months from its date, and was duly delivered to J. F., a deputy sheriff, to be executed; that Dearborn hath not abode the said judgment, but has avoided the same, so that he could not be found; that the deputy sheriff returned the execution at the end of the six months, with his return endorsed thereon, that he had made diligent search for the body and property of Dearborn, and could find neither, and therefore he returned the execution in no part satisfied; and that the said judgment is still unsatisfied. Whereupon the defendant is summoned to show cause, &c.</p> <p>The defendant pleads in bar that there are two terms of this Court established to be holden annually in this county, viz. one in May, and one in October; and that the plaintiff’s execution ought to have been returnable to the May term then next, and not at the end of six months from the issuing thereof.</p> <p>To this plea in bar the plaintiff demurs generally, and the defend ant joins in demurrer.</p>

The plaintiff declares upon a promissory note, dated April 26th, 1805, subscribed by—Fales, and payable to the defendant or his order, in six months with interest; and avers an endorsement and guaranty thereof by the defendant to the plaintiff, and due intelli gence to collect the same of the promisor, and notice to the defendant of the promisor’s failure of payment, &c. At the trial, which was had before Sewall, J., upon the general issue, the plaintiff gave in evidence the…

This was an action of assumpsit, brought by the plaintiffs as endorsees of a promissory note, dated at Boston, September 4th, 1806, by which one Joseph Boynton promised the defendant to pay him or his order 902 dollars 16 cents in nine months from the date, with interest after six months, and which the defendant endorsed to the plaintiffs. On non-assumpsit pleaded, the cause was tried before Thatcher, J., at the last September term in this county.

<p>This was a writ of entry sur disseisin, in which the demandants counted upon the seisin of Henry Knox, whose heirs they are, of four fifth parts of the premises described in the declaration, and upon a disseisin by the tenant, who pleaded the general issue, that he never disseised the said Knox, deceased. This issue, being joined by the demandants, was tried before Thatcher, J., at the last September term in this county.</p> <p>A.t the trial, the demandants, to prove such seisin as to two fifth parts, produced the deed of Samuel Waldo, Esq., and others, to said Knox, deceased, bearing date October 11th, 1793, and recorded October 22d, 1794; and it was proved that the grantors in said deed owned the said two fifth parts, at the time of making and executing the deed. On the 29lh of November following, the grantors, by their attorney, who was duly appointed to enter on the land, demanded, and thereon to deliver said deed, entered on the laud, and delivered possession thereof, to the attorney of said Knox, deceased. To prove said Knox's seisin, as to * the [ * 489 ] other two fifth parts of the premises demanded, the demandants proved, that on the L5th of February, 1765, Thomas Fluclcer became seised thereof, and continued so seised, until all his estate was duly confiscated to the use of the now commonwealth of Massachusetts, he being a conspirator ; that said Knox, deceased, was, by the legislature of the commonwealth, appointed agent to settle said Flucker's estate, to pay his debts, and make sale of his property for the use of the commonwealth; conforming in such sale to the law relating to and directing the sales of estates by executors and administrators; that he was duly licensed by the Supreme Judicial Court to sell, and gave the bonds required by law ; that he took the oath by law required, which was administered at Philadelphia by James Iredell, one of the associate justices of the Supreme Court of the United States, on the 25th of March, 1791, he certifying such oath in the above capacity only ; that due notice of the intended sale was given, as by law required; that on the 2d of July, 1791, the said two fifth parts were sold at auction to Oliver Smith, from whom, by several mesne conveyances, they were at length conveyed to the said Knox, deceased, by a deed dated the 5th of October, 1792.</p> <p>On the part of the tenant, it was in evidence, that on the 2d day of June, 1785, one Jonathan Spear conveyed the lands described in the writ, with warranty, to Jenks, the tenant in fee, by a deed recorded on the 7 th day of November following; that the said Jenks entered under his deed, improved and lived upon the said land, erected a dwelling-house thereon, and gradually extended his improvements, and in the year 1793 .had as much as twenty acres of the land enclosed and under cultivation.</p> <p>The counsel for the tenant contended at the trial, that the deed from Waldo and others, dated in October, 1793, could not legally operate to pass any estate to Knox in that part of the land improved and enclosed as aforesaid ; and that the certificate of Justice Iredell was not legal proof that said Knox was sworn according [ * 490 ] to law, inasmuch as it did * not appear that said Iredell was a justice of the peace ; whence it was insisted that nothing passed by the deed of Knox to Smith.</p> <p>The judge who sat in the trial delivered his opinion that the said objections could not avail the tenant; and that upon the facts disclosed the demandants were entitled to recover; and the jury found a verdict for them accordingly.</p> <p>The tenant’s counsel filed his exceptions to the opinion thus given by the judge, and the action was thereupon continued to this term. And now,</p>

Assumpsit by the endorsee of a promissory note, payable on demand, against the endorser.

<p>Where land lying on each side of a river was owned by tenants in common, and they made partition of the same, by assigning the land on one side of the river to one, and that on the other side to another, it was held that the two tracts were to be considered as separated by the thread or central line of the river.</p>

<p>Where a copy of a libel and summons had been left by an officer at the last and usual place of abode of the party libelled, but it appeared that she was not then, nor afterwards before the sitting of the Court, within the county, the Court would not hear the cause until personal notice given.</p>

The petitioners, of which there were three, made application to the Common Pleas for this county, alleging themselves to be seised in fee, as tenants in common, of a certain tract of land described in their petition, lying in Hampden, in this county, stating their several shares or purparties, and praying that partition might be made of the said tract, and their respective shares set off in severalty, according to the law in such case provided.

This was an action of the case against the defendant, late sheriff of this county, for the default of one John Balch, who was his deputy. It was submitted to the opinion of the Court upon the case stated, containing, in substance, the following facts: — The plaintiff, in April, 1806, purchased out of the clerk’s office of the Court of Common Pleas for this county a writ of attachment against one Samuel Greenleaf, and delivered the same to Balch, to be served and returned.

<p>Trover for a quantity of cord-wood. At the trial before Thatcher, J., at the sittings here after the last June term, the plaintiff, in support of his declaration, produced evidence to show that he put on board the schooner Laura, owned by the defendant, forty-one cords of wood, to be carried from Penobscot to Boston, on freight, the master, John Booden to account to the plaintiff for one half of what the wood should sell for in Boston. In the prosecution of the voyage, the master was lost, and the vessel stranded near Newburyport. The defendant, who lives in Boston, hearing of the misfortune, went to Newburyport, where the vessel lay, and took charge of her and her cargo, part of which he sold at Newburyport, and carried the remainder to Boston, where it was sold by him. Before the plaintiff commenced this action, he made a demand of the wood of the defendant.</p> <p>* If the Court should be of opinion that trover is main- [ * 508 J tainable upon these facts, then the verdict, which was in the plaintiff’s favor, was to stand; otherwise the plaintiff was to become nonsuit, and the defendant recover his costs.</p>

Case upon a promissory note made by the defendant to Eli Bush, upon whose estate the said Ruth, when sole, was appointed sole administratrix. The said Matthew having since intermarried with her, the action was brought in their joint names, as administrator and administratrix.

<p>Debt on bond. Oyer was had of the bond and of the condition, which last recites that, at the then preceding term of this Court for this county, upon the petition of the said Oliver Ruggles and one Charles Loveland for a new trial, in an action wherein the said .Tames was plaintiff, and the said Oliver and Charles were defendants, and in which the said James had recovered against the said Oliver and Charles the sum of 1230 dollars 33 cents damages, and 47 dollars 56 cents costs of suit, it was ordered by the said Court, upon the said petition, that a writ of review should issue in the said action, provided the petitioners give bond with surety to the said James, conditioned for the payment of the debt which the said James might recover on the trial of the said review, and also pay the costs taxed in the former suit; and three months were allowed for the performance of the condition of the said order of Court. “ Now, therefore, if the said Oliver and Charles shall pay to the said James such sum as the said James may recover in damages and costs, in the final trial and judgment and the action of review which the said Oliver and Charles may prosecute against the said James, then the foregoing obligation shall be void; otherwise to remain in full force.”</p> <p>* Whereupon the defendants plead in bar, that from [ * 512 ] the time of making the said writing obligatory hitherto, they have well and faithfully observed, performed, and fulfilled all and every thing in the said condition mentioned, on their part to be performed, observed, and fulfilled, according to the form and effect of the said condition; and this, &c.; wherefore, &c.</p> <p>The plaintiff replies, (protesting that the defendants have not performed, &c.,) that the said Oliver and Charles .entered their action of review, and that such proceedings were had therein that, at the September term, 1809, of this Court, he recovered judgment against the said Oliver and Charles, for the sum of 1401 dollars 8 cents damages, and 12 dollars 7 cents costs of the same suit, on which judgment execution duly issued and was delivered to a deputy sheriff, who demanded payment of the said Oliver, (the said Charles being out of the county,) who refused payment; of which refusal the said deputy sheriff notified the said Silas; and afterwards returned the execution unsatisfied; “ which said judgment remains in full force, not reversed, annulled, satisfied, or in any way discharged, and which said judgment the said Oliver and Silas were, by the said bond and the condition thereof, bound to pay, satisfy, and discharge; which they and each of them have wholly failed to do and perform. Wherefore he prays judgment,” &c.</p> <p>To this replication the defendants demur generally, and the plaintiff joins in demurrer.</p>

Case upon several promissory notes made by the defendant to Gurdon Ellsworth, the plaintiiPs intestate, dated at Ellington, the 4th of August, 1800, and payable on the 1st of March, 1801. The defendant pleads the statute of limitations in bar.

<p>Oral testimony is not admissible to control the effect of a written contract</p>