Volume 8 — Massachusetts Reports

This writ of error was brought to reverse a judgment of the Court of Common Pleas for this county, rendered upon the report of referees appointed by a rule between the parties, made before a justice of the, peace, under the statute of 1786, c. 21.

On the trial in the court of common pleas, before Hoar, J., of an indictment against the defendant, the jury, having received instructions from the judge, to which no exception was taken, retired to consider of their verdict, and after an absence of several hours, were sent for by the judge, and reported that they had been unable to agree.

The plaintiffs in error, being the children and heirs at law of Moses Hawley, deceased, brought this writ of error, September term, 1808, to reverse a judgment of this Court rendered in May, 1792, in favor of the defendants in error against the said Moses.

<p>The declarations of one occupying land, that he occupies it as tenant of another person, are admissible in evidence, as part of the res gestee, to prove such other’s possession, in an action brought against him by a third person claiming title to the land.</p> <p>In an action of trespass quare clausum fregit, brought against one claiming to hold the premises under a lost deed from the plaintiff, a witness, who has testified to a conversation, at which the plaintiff was asked, “ whether he had received pay for the land,’’ and answered in the affirmative, cannot be asked by the defendant what land he understood the conversation to refer to.</p> <p>In an action of trespass quare clausum fregit, the defendant, claiming title by adverse possession, put in evidence a will containing a devise by the testatrix to certain of her grandchildren, under whom he claimed'; and the plaintiff gave evidence of subsequent declarations of the testatrix, that she did not cwn the land when she made the will, and did not intend to buy it, unless certain arrangements could be carried out, because it would be giving the devisees more than her other grandchildren. It was held, that the plaintiff might then put in evidence the final account and the decree of the probate court on the settlement of the estate of the testatrix, to show what the shares of the other grandchildren would be, compared with those of the devisees, if they held this estate.</p>

<p>This was a petition for a writ of mandamus, dated the 6th of March, 1850, and brought by Caleb E. Nourse, a minor of the age of eighteen years, and Caleb Nourse, his father and next friend, against the school committee of the town of Bolton.</p> <p>The petition set forth that Joseph Houghton, late of Bolton, deceased, made his last will and testament, which was duly proved and allowed in December, 1847, and by said will among other devises and bequests, made the following: “ Item. I give, bequeath, and devise unto a part of the inhabitants of the town of Bolton, and unto a part of those persons who may become inhabitants of said town of Bolton, to wit, all that are now inhabitants of said town or may become inhabitants of aid town of Bolton, excepting Joseph Sawyer, John E. Fry, Henry Jewett, Christopher C. Moore, Oliver Barrett, Jr., Caleb Nourse, Nathaniel A. Newton, Thomas Houghton, and Samuel Nourse, and their descendants, the sum of twelve thousand dollars upon the following conditions, to wit, said town of Bolton is to loan said sum of twelve thousand dollars, and secure the payment of the principal and interest by a mortgage or mortgages upon real estate. The principal is to be kept as a permanent fund, the interest is to be expended yearly, after two years from my decease, in the support of one school to be kept near the centre of said Bolton, in which such academical instruction shall be given as said town shall decide to be most useful; said school is to be continued through the whole of each year, excepting necessary vacations; said school is to be free to all persons who are now inhabitants of the town of Bolton, or may become inhabitants of said town, excepting such persons as do not conform to proper rules and regulations that shall be established in said school by said town, and such persons as said town shall determine to be of an unsuitable age, and the aforenamed Joseph Sawyer, Henry Jewett, John E. Fry, Christopher C. Moore, Oliver Barrett, Jr., Caleb Nourse, Nathaniel A. Newton, Thomas Houghton, and Samuel Nourse, and their descendants, who are excluded from attending said school for the term of one hundred years, and after the expiration of said term of one hundred years, the school is to be free to all the inhabitants of said town of Bolton, who comply with the rules of said school. No person is to be considered eligible for a teacher in said school for more than two years. Whenever the said town of Bolton, shall fail to fulfil the above conditions, the said twelve thousand dollars shall become the property of my legal heirs. I also give, bequeath, and devise unto the same aforenamed inhabitants of the town of Bolton, to whom I bequeathed twelve thousand dollars, eighty rods of land, [described,] upon the following conditions, to wit, said land is to be used for the purpose of erecting a school-house upon it, for the use of the school aforenamed, and to become the property of my heirs, whenever said land shall be used for any other purpose, after the expiration of two years from my de cease. Said town of Bolton is to be paid, by my executors hereafter named, the aforenamed sum, twelve thousand dollars within two years from my decease, with interest on the same from the day of my decease.”</p> <p>The petition further stated, that the town of Bolton, on the 11th of September, 1848, voted to accept the legacy; and on the 5th of December, 1848, voted that the school be carried into effect in two years from Houghton’s decease; that a school-house be built upon the land devised, and that the town treasurer be authorized to obtain a loan of $600, on the credit of the town for that purpose; chose a building committee, and a committee to receive the legacy and loan the same upon the conditions named in the will; and voted to appoint the school committee, that should be chosen at the annual meeting in March, 1849, to take charge of said school, and report a code of rules and regulations for the government thereof, to be acted upon by the town ; and that, on the 8th of January, 1849, the town voted that the town treasurer be authorized to obtain a loan of $1,000, upon the credit of the town, to be used in payment of the expense of said schoolhouse, and that the town reserve $100 yearly, from the interest accruing from the $12,000, until the reservation should amount to enough to pay the loan of $1,000 and interest: That the school-house was afterwards erected by the town, and used and occupied for the purposes of the school at and for three months previous to the date of the petition : That the town, on the 10th of September, 1849, adopted a code of by-laws for the regulation of said school, (which were set forth in the petition,) regulating, among other things, the times of keeping the school, the age, scholarship, and character required for admission into the school, and the powers and duties of the school committee: That on the 8th of December, 1849, at a meeting called, among other things, “ to see whether, in the management of the Houghton school, the town will abide by a provision in the will of the late Joseph Houghton, by excluding certain individuals, named in said will, and their descendants from said school, or disregard said provisions by voting said school free to all the inhabitants of the town,” the town, on motion, that the town disregard the" provision in the will of the late Joseph Houghton, whereby certain individuals are excluded, and vote it a free school,” voted in the negative ; and further voted, “ that the school committee be instructed not to receive the children of the rejected ones into the Houghton school: ” That the school committee had employed a teacher of said school, and had examined many of the children of the inhabitants of Bolton for admission, and had admitted them into the school, and had taken the school under their charge; but had refused to examine, or admit into the school, any of the persons excluded by the will; and that the petitioners believed that they were unjustly and unlawfully deprived of the advantages, which, as inhabitants of said town, they ought to share and enjoy in the public school education designed for all the inhabitants thereof: That on the 4th of March, 1850, the respondents were chosen the superintending school committee of the town for the current year, and accepted the trust: That the petitioners by a written application represented to the school committee, that the minor petitioner was above the age prescribed by the by-laws, being eighteen years of age, and that, as they believed, he was able to sustain a fair examination in all the requisite branches of education, and requested that he might be examined accordingly, and, if found qualified, be permitted to attend said school; which application was rejected by the committee, only because he was the son of one of the persons excluded by the will: That this was not a valid and sufficient reason, first, because the restriction and limitation by the will of the enjoyment of the advantages of said school were void; and, second, because the school was a public one, established in part by taxes levied upon the inhabitants of the town, managed by them, and ought to be open for the instruction of their children, irrespective of the names of their parents. The prayer of the petition was, that a mandamus might issue to the school committee, commanding them to examine Caleb E. Nourse for admission into said school, and, if found qualified in scholarship and character, to issue a certificate authorizing him to receive instruction in said school.</p> <p>The inhabitants of Bolton and the school committee- answered, admitting that the petition set forth correctly the devise and legacy given in Houghton’s will, the acceptance thereof by the town of Bolton, the votes and measures adopted by the town, and by the school committee acting under the authority and instructions of the town; and that the minor petitioner was of suitable age, and that he made application to them to be examined for admission into the school so established, and that they declined to examine him on the ground that he was the son and descendant of Caleb Nourse, named in the will, and for no other reason. The answer further stated, that since the adoption of the votes and resolutions mentioned in the petition, the town at a legal meeting instructed the school committee to adopt all honorable measures to have the children of the persons named in the will share in the benefits of said school, if it might be done without a forfeiture of the devise and legacy of Houghton: That the respondents, regretting the provisions of Houghton’s will, excluding any inhabitants of Bolton from the benefits of said school, had yet felt themselves constrained in the execution of the trust, to follow with exactness the provisions of the will. And the school committee, “ desirous of executing with fidelity the trust committed to them, and also of admitting, if they may lawfully so do, the said Caleb E., and the descendants of all other persons named in the will of said Houghton, to the benefits of said school,” submitted themselves to the direction of the court.</p>

This was an action of trespass quare clausum fregit, for quarrying and carrying away stone from a part of the Millstone hill, so called, in Worcester; and was submitted to the court upon the following facts: — The plaintiff, at the time of the alleged trespasses, was, and from the 20th of May, 1848, had been, the owner in fee-simple of the premises' in question, deriving his title thereto, through sundry mesne conveyances, duly recorded, from the proprietors of the town of…

This was a proceeding under the Rev. Sts. c. 104, commenced on the 3d of July, 1848. At the trial in the court of common pleas, before Mellen, J., the following facts were in evidence: The defendant mortgaged the premises to Asa Cutler, himself remaining in possession.

This was a proceeding under the Rev. Sts. c. 104, commenced on the 24th of June, 1850; and was submitted to this court upon the following statement of facts: The defendant entered on the premises described in the writ, on the 1st of April, 1850, under a parol agreement with the plaintiff, that he should hold them for one year, in consideration of his taking care of certain young trees on the premises.

<p>A person in possession of an estate, under a bond from the owner, conditioned to convey the estate to him on payment of his note for a certain sum with interest semiannually, is not, on a failure to pay such interest, liable to the landlord and tenant process provided by Rev. Sts. c. 104, § 2.</p>

<p>Where an equity of redemption was attached and levied on and sold on execution and conveyed to the purchaser, as “ all the right in equity” which the mortgagor had at the time of the attachment “ to redeem certain mortgaged real estate in B., described in certain mortgage deeds,” stating the names of the mortgagors and mortgagees, the dates of the mortgages, and the books and pages where they were recorded in the registry: It was held no ground for impeaching the validity of the levy and sale, that one parcel of land, included in the description of the estates advertised and sold, and embraced in the officer’s return and deed, was not the property of the mortgagor, at the time of the attachment, nor of the levy; or that one parcel of land, which did not belong to the mortgagor, and was not included in the officer’s return, was bid off with the other parcels, and its price included in the sum bid for the whole; or that the mortgage, subject to which the equity of redemption was sold, described the premises as being two lots embraced in a former mortgage referred to, without further designation, except as to one the lots, whereas the former mortgage embraced three lots, so that it was impossible to distinguish which of the other two lots was intended; or that other judgment creditors of the mortgagor had agreed with the purchaser, that he might bid off the equity of redemption at a sum sufficient to satisfy all their judgments; or that the debt of one of the creditors had been paid before the recovery of judgment thereoil, and that the purchaser knew this; or that the date of the mortgage, subject to which the equity was sold, was incorrectly stated in the advertisement of sale ; or that certain machinery and tools, not included in the mortgage, were embraced in the sale and conveyance of the equity and enhanced the price bidden and paid therefor.</p>

<p>P., to secure one debt, made a mortgage to B. of three parcels of land: 1. A tract of land, situated in the towns of M. and U., on the south-westerly side of the B-river, containing by estimation one hundred and thirty acres; 2. A certain othei tract of land, containing by estimation one fourth of an acre, situated in M.; 3. A certain other tract of land, containing by estimation five acres, situated in M. on the same side of the B. river, and on both sides of the B. canal. P. had formerly resided on the first tract, occupying the others as parts of the same farm. P.’s administrators obtained a license from the probate court to sell the whole of P.’s real estate for the payment of his debts, and advertised the whole for sale, described in the notice, so far as could apply to the premises so mortgaged, as “ consisting, first, of a farm of about one hundred and twenty acres, situated on the westerly side of the B. river, partly in M. and partly in TJ.; and also of a lot of about four acres, known as the Canal lot, on the same side of the river, and on both sides of the B. canal; ” and in their return to the probate court stated, that they had sold to H. the estate first described in the notice. Their deed to II. purported to convey “ all the right, title, and interest whereof P. died seised and possessed, of, in and to a certain parcel of land and estate, situated partly in M. and partly in U., and on the south-westerly side of the B. river, it being the farm on which P. formerly lived, and which was conveyed to B. by deed of mortgage,” (of which the date, and the book and page of the record, were given, corresponding to the mortgage above mentioned,) “to which reference may be had for a further description of the premises.” It was held, that the deed from P.’s administrators to H. conveyed all P.’s title to the whole estate mortgaged by him to B.</p>

This was a bill in equity against the administrators of Charles C. P. Hastings, for the redemption of a mortgage, made by Esek Pitts to Moses Buffum on the first of August, 1834, to secure the payment of a promissory note for $5,000, and which mortgage, together with Buffum’s right, title, and interest in said note, and in the estate described in the mortgage, had been assigned by Buffum on the 6th of January, 1838, to Hastings, to secure the payment of a like sum of §5,000…

<p>Case upon a promissory note made by the defendant, payable to the plaintiffs.</p> <p>Upon trial of the action at the last April term in this county, before Sedgwick, J., a verdict was taken for the defendant, subject to the opinion of the court upon the judge’s report.</p> <p>From that report it appeared that the note declared on, and another of the same amount, were given in consideration of a deed of assignment dated March 31st, 1806/a copy of which came up in the case. After reciting that one John Sibley, on the 13th of December, 1803, obtained letters patent from the government of the United States, securing to him, his heirs, &c., for the term of fourteen years, the exclusive right and liberty of making, using, and vending to others, to be used, a new and useful improvement in painting rooms, ornamenting ceilings, borders, &c., and thence deriving the said patent right, through several mesne conveyances to the plaintiffs, the deed assigns to the defendant, for the consideration of one hundred and fifty dollars, all the right and privilege so conveyed to the plaintiffs, to be exercised within certain enumerated towns in the county of Worcester, with a covenant to warrant and defend the same against the claims of any pther person.</p> <p>It was agreed at the trial, that the letters patent, mentioned in the assignment, were duly issued in conformity to the statute; but it appeared in evidence that the invention mentioned in the letters patent was not the invention of the patentee, and that the art of that invention had been long before the patent publicly known and used, both in England and in the United States ; and that this was known to the patentee at the time he obtained the letters patent. It also appeared, and was admitted to be true, that at the time of making the deed above mentioned, none of the assignments mentioned therein had been recorded in the office of the secretary of state.</p> <p>* On this evidence the judge ruled that a verdict ought to be found for the defendant; and a verdict was found accordingly. — But the judge observes, that what gave rise to his report were the following facts : —</p> <p>It appeared by the evidence that the notes and the assignments were made and executed in the forenoon of the 31st of March, 1806. Afterwards, on the same day, and while the parties continued together, there were delivered to the defendant by the order of the plaintiffs, certain samples in relation to the invention mentioned, and some paint proper to be used in the art; and at the same time one of the plaintiffs undertook to send to the defendant two persons to instruct him in the art. In pursuance whereof a man and boy were sent and labored in the art, in presence of the defendant, a part of two days.</p> <p>Hereupon the plaintiffs’ counsel insisted, that from this evidence the jury ought to presume, that the articles so delivered, and the labor so performed, made part of the consideration of the note; and if so, that that circumstance would give validity to the note. ' Upon this point the judge instructed the jury to inquire whether those articles and labor formed any part of the consideration for which the note was givenand if they were of that opinion, to find by their verdict the value of the articles and labor, which they accordingly found to be fourteen dollars.</p> <p>The action stood over to this term, upon the motion of the plaintiffs for a new trial for the misdirection of the judge And now,</p>

<p>Several parties, by agreement in writing, “associated together to construct and maintain a reservoir, and therein to raise and reserve a head of water for the use and benefit of their several mills and water privileges, situated below said reservoir upon M. river,” and fixed the number of shares to be held, and the proportion of the expenses to be paid by each, and agreed that “the times and seasons when, and the quantity and manner in which, the said water may be drawn off for the use of the parties interested therein, shall be subject to the will, order and direction, of a majority in interest for the time being of the owners of the reservoir,” “ the right to draw off and exhaust the water from said reservoir, at any and all times, to supply the mills and water privileges below the reservoir on said river, being subject exclusively to the control and direction of a majority in interest of the proprietors for the time being of said reservoir, as hereinbefore provided.” It was held, that the majority, even though they should have no occasion to use the water themselves, had no right to require the minority to pay any rent or compensation for the use of the water, although the minority had heretofore made such payments without objection; and that the majority were not authorized by the agreement to let the water run to waste, without regard to the interests of the minority, and should be restrained by injunction from so wasting the water.</p>

<p>The declaration alleges that the defendant is a practising attorney in the counties of Berkshire and Hampshire; that .the plaintiff, being possessed of a certain promissory note for 28 dollars made by one Willard and payable to one Cutler, delivered the same note to the defendant, to be by him collected and paid over to the plaintiff, the same being*due and the property of the plaintiff; that he retained and employed the defendant, for a reasonable fee or reward to be paid him by the plaintiff, in his said capacity of attorney, to use all necessary care and fidelity in suing and collecting said note, and especially directing him without delay to commence a suit thereon, and to attach sufficient property of Willard’s to secure the debt and costs, which he might liave done ; but that he so carelessly and negligently conducted the said trust, that the note has never been paid or collected, and the plaintiff has wholly lost the money due on said note, by the mere negligence of the defendant in his said capacity as aforesaid.</p> <p>The action was referred to the opinion of the Court upon an agreed statement of facts, in substance as follows: —</p> <p>In February or March, 1804, the plaintiff wrote a letter to the defendant, then collecting attorney in the courts of the counties of Hampshire and Berkshire, containing a copy of the note mentioned in the declaration, requesting the defendant to collect the money due on it, suggesting that he considered the debt precarious, and desiring him to secure it by an immediate attachment of the debtor’s property. On the 15th of March, the defendant answered the plaintiff’s letter, saying that he had seen Willard, that he was to continue there in business, and had assured him that if the note was sent, it should be paid. March 20th, the plaintiff replied, “ Agreeable to your request I enclose the note against Willard. Should you get the money, it will not be necessary to send it by mail. Probably you will attend the first court at Northampton, and if I am not there, you may hand it to Mr. Leavitt or Mr. Newcomb.”</p> <p>At that time Willard was tenant of a furnace in Dalton at a rent, carrying on business therein, and apparently in large and profitable business and good credit. When called on by the defendant to pay the note, he assured him that he would pay it shortly, and proposed to get an order on the defendant from one Booth, for whom the defendant was collecting money, and with whom Willard had dealings. * The note not being paid, the defendant on the 7th of May filled a writ against Willard, which he endorsed, and on which he directed sufficient property to be attached, or no service to be made of it. But on Willard’s assurance that the money should be paid before the court should sit, or an order obtained from Booth, the writ was not delivered to an officer. Willard continued in good credit until June 15, 1804. He had before that time confessed a judgment to one Goodwin for about 700 dollars, which was not known to the defendant. A .few days previous to the 15th of June, Goodwin’s execution on the said judgment was delivered to a deputy sheriff, who arrested Willard thereon, pursuant to orders from Goodwin, and .committed him to prison. But it is agreed that, had the officer had other orders, he might have secured the demand. On this his other creditors immediately attached his property, which was sold at a very great loss upon execution. The defendant was absent from home on the day of Willard’s arrest, but returning in the evening, he delivered a writ of attachment against Willard to a proper officer, directing him to attach property. On this writ the officer’s fees for attaching and securing property, all of which had been previously attached, were charged at 8 dollars 25 cents, and paid by the defendant. The property so attached was afterwards sold to satisfy judgments secured by prior attachments. A judgment was obtained against Willard, and execution sued out and delivered to an officer for collection ; but no part of it was collected, and Willard is insolvent, and wholly unable to satisfy the judgment.</p> <p>On the above-mentioned 15th of June, while the defendant was from home, two writs of attachment were issued by his cleric, (who did not know that Willard’s note had been left with the defendant for collection,) by which Willard’s property was secured, to the value of" more than 50 dollars.</p> <p>It is agreed that the defendant received no other instructians from the plaintiff, than are above mentioned ; * that the plaintiff knew nothing of the proposed arrangement for payment by way of Booth, as above stated ; and that Willard’s note to Cutler was the property of the plaintiff.</p> <p>Upon these facts it was agreed that the Court should render judgment, provided that in their opinion the same would support the plaintiff’s declaration, or any other that could be filed in the case arising on the said facts. If the Court should be of opinion that the defendant was guilty, judgment to be rendered for the plaintiff for 30 dollars 24 cents, with interest from the recovery of the judgment against Willard; otherwise the defendant to recover his costs.</p> <p>The cause was argued at the last September term in this county by Leavitt and Newcomb for the plaintiff. Mr. Williams defended himself.</p>

<p>This was an action of assumpsit to recover the amount of a tax assessed upon the plaintiff in 1849, and paid by him to the defendants under protest.</p> <p>The case was submitted to the court upon the facts herein* after stated. Annexed to the statement of facts was a copy of the valuation of the plaintiff’s estate by the assessors of the city of Worcester for the year 1849, as taken from their books, consisting of fourteen items of real estate, and five items of personal estate, of which the only ones material to be stated are the following : —</p> <p>“ Real — Estate he lives on between Elm and Cedar streets,.........$32,000</p> <p>“Three lots south side Elm street,........................ 6,000</p> <p>“ Six acre lot west of M. B. Green’s,...................... 4,800</p> <p>“Four lots on Oak and Cedar streets, near R. P. Angier’s,.. 3,200</p> <p>“ Strip of land south side of Elm street,.................... 300</p> <p>“Estate occupied by Wm. S. Lincoln, and the remainder of home farm,.........................................12,000</p> <p>“ Four houses on Thomas street,.......................... 7,500</p> <p>“Personal — Bank, Railroad, and other stocks,.................... 11,700</p> <p>Most of the land taxed to the plaintiff, including the land on the south side of Elm street, was one farm thirty years ago, and occupied by the plaintiff. The three lots on the south side of Elm street have for more than thirty years been cultivated by the plaintiff, and the. produce thereof stored, mingled and used, with the produce of his said farm. The six acre lot west of M. B. Green’s is a part of said farm, and separated from the residue of the farm by fences only, has always been occupied as a cow-pasture in connection with said farm, is surrounded by the plaintiff’s other land, and across it lie the necessary and only ways whereby the plaintiff’s teams pass for the purpose of cultivating the adjoining parts of the farm. Oak street is a private street, made by the plaintiff in 1847, and still owned by him. The original farm of the plaintiff had been reduced by sales of portions of it at different times. Until the year 1849, no part of said estate, except houses and gardens occupied by tenants, had been valued separately in the assessment of taxes, but the whole of said estate had been valued and taxed as his home farm, or the estate on which he lived, or by some general description. The plaintiff owned no land which would answer the description “ Estate of Wm. S. Lincoln, and the remainder of home farm,” except those parts of his original farm which he had not sold, and two lots purchased within six years, and since occupied in connection with his farm. The “ four houses on Thomas street,” with the land on which they stood, were owned by the plaintiff; two of them, on the north side of the street, having been acquired by will; and the other two, on the south side, having been acquired by purchase, at different, times and from different persons; and the four houses were occupied by different tenants, one of whom held under a parol lease and without any agreement as to the payment of taxes.</p> <p>The plaintiff owned stock, in his own right, in the Boston and Worcester and other railroad corporations, and in various banks in the commonwealth; and also held nine shares in the Boston and Worcester railroad corporation, as the guardian of Sarah Sever, who was of full age, and resided at Kingston, where she was taxed for her property. These nine shares were included in the valuation of stock assessed to the plaintiff in his individual capacity. The stocks held by the plaintiff were of different values, some above par, and some much below.</p> <p>The plaintiff gave in to the assessors no list of his taxable property for the year 1849.</p>

<p>To an indictment upon the second section of the statute of 1804, c. 120, for having in possession ten or more counterfeit bank bills, it is no sufficient objection, that it is alleged, that such bills purport to be bills of such a bank; that they were payable to the bearers thereof; that they are not alleged to be similar bills; that they are described as promissory notes or bank bills ; or, that it is not alleged, that the party charged had knowledge of the false making, &c.</p>

<p>A town voted to let an inhabitant, who sent his children to school in another town, “ draw his proportion of school money; ” and reconsidered this vote before the money was paid : It was held, that such inhabitant could not maintain assumpsit against the town for the amount of the taxes assessed upon and paid by him for the support of schools.</p> <p>A tax-payer in a' town cannot maintain assumpsit against the town, for his proportion of the expenses of the burial of persons not paupers, paid by the town out of the money raised by town taxes.</p>

<p>This was a proceeding before a sheriff’s jury, for the recovery of damages sustained by the petitioner, in consequence of the lowering, by the respondents, of the grade of a highway, adjoining the petitioner’s land in the city of Worcester.</p> <p>The petitioner, in his application to the county commissioners for a jury, set forth, that the respondents having failed to make any provision for the payment of his damages, and having never caused any adjudication thereof to be made, the petitioner, on the 19th of June, 1850, presented a petition to the mayor and aldermen, praying that his damages might be legally assessed; that this petition was referred, by both Dranches of the city government, to a committee, who reported thereon, that the respondents should pay the petitioner, in full compensation for his said damages, the sum of seven hundred and fifty dollars; that this report, being made to the board of aldermen, was there read and laid on the table, on the 5th of August, 1850; and that no further action had been taken or had thereon. The petitioner, therefore, alleging himself to be “ aggrieved by the said determination of said board of mayor and aldermen, and by the amount reported by the said committee as the amount that ought to be paid to him in full for his damages,” prayed that a jury might be summoned and impanelled, according to law, to ascertain and determine his damages, for and by reason of the lowering of the grade of the highway as aforesaid.</p> <p>The commissioners ordered the prayer of the petition to be granted; and issued a warrant, pursuant to which the sheriff summoned and impannelled a jury, one of whom, Harvey Bancroft, of Auburn, was the owner of real estate for which he paid taxes in Worcester. The respondents objected to his being sworn, when the following proceedings took place, as appeared by the sheriff’s certificate: “ The sheriff put to the said Harvey Bancroft the several questions stated in Rev. Sts. c. 95, § 27, all of which he answered in the negative. The counsel for the inhabitants of Worcester requested the sheriff to inquire of the juror, Harvey Bancroft, whether he is not the owner of real estate in the city of Worcester, and whether the city have not made repairs or alterations upon the highway where his estate abuts on the same, and if so, whether he does not feel himself aggrieved and injured by such repairs and alterations, and whether he does not claim damages of the city in consequence of such repairs or alterations, and also, whether he does not consider himself entitled to damages therefor. The sheriff declined to put the inquiries, stating that if all the questions were answered in the affirmative, he should not consider that Mr. Bancroft was disqualified to serve as a juror; that he considered the question of interest arising from the possession of real estate without inhabitancy as settled in the case of. Rutland v. Worcester, 20 Pick. 71, 84; and that as regarded any repairs or alterations of highway in the vicinity of land of Mr. Bancroft, it was in a different street, more than a quarter of a mile distant, and had no connection whatever with the alteration complained of by the petitioner.”</p> <p>Bancroft and the other jurors were then sworn by the sheriff ; and after they had chosen a foreman, proceeded, against the objection of' the respondents’ counsel, to view the premises ; and, after both parties had been heard, agreed upon a verdict in favor of the petitioner, which was returned into the court of common pleas, and accepted by that court; whereupon the respondents appealed. The objections taken by the respondents to the acceptance of the verdict are stated in the opinion.</p>

The defendant was indicted at the Court of Common Pleas fat this county, November term, 1809, for selling spirituous liquors within the town of Springfield, in this county, against the form of the statute, &c. The indictment contained three counts, charging the defendant with three distinct offences in selling rum to three several persons. Upon a trial had in the court below, he was convicted, and sentenced to pay a fine and costs.

This was an action of trespass quare clausum fregit, brought to try a question of boundary.

<p>In this commonwealth, an illegitimate child, born after the 10th of April, 1767, and before the passing of the St. 1789, c. 14, has the settlement of his mother at the time of his birth, if she then had any.</p>

Upon the motion of Lincoln, a writ of habeas corpus issued to the sheriff, returnable instanter, commanding him to bring in the body of Thomas Morey, a prisoner in the county jail, with the cause of his commitment. — The sheriff returned a copy of a mittimus or warrant of commitment, issued by one Bottom, a justice of the peace for this county, in which it was recited that Morey •had been brought before him on the complaint of one J. P., and had thereupon been “ required to…

This was an action on a policy of insurance, whereby the defendants insured the plaintiff “ two thousand dollars on his machine shop, a watchman kept on the premises; with the privilege to insure $2,000 at the Fitchburg office, $500 at the New England office, Concord.” At the trial, which was before Fletcher, J., the only ground of defence relied on was, that there was not “ a watchman kept on the premises,” and that the plaintiff therefore could not recover.

<p>In case against the sheriff for neglect of his deputy in the service of an execution issued by a justice of the peace, in the plaintiff’s favor, upon a recognizance taken pursuant to the statute of 1782, c. 21, by which the plaintiff lost his debt: where the execution misrecited the recognizance, both as to the sum in the recognizance, and as to the time of entering into it, it was held that no action lay against the sheriff.</p>

This was an action of assumpsit on a policy of insurance, whereby the defendants insured the plaintiffs against damage or loss by fire to the amount of $13,100, of which “ $1,500 on their old mill (woollen) and fixtures; $1,500 on machinery therein; and $2,000 on stock therein.” The policy contained the following proviso : “ If the representations made ” in the plaintiffs’ application for insurance “ do not contain a just, full, and true exposition of all the facts and…

<p>This was an action of assumpsit on a promissory note, bearing date the 20th of December, 1848, payable to the plaintiff or order on demand, subscribed by John E. Stanley; and on which the defendant’s name was indorsed in blank. The trial was before Hoar, J., in the court of common pleas.</p> <p>The declaration contained four special counts; in the first of which the defendant was sought to be charged as an original promisor; and in the others as a guarantor. The consideration alleged in the three last counts was a forbearance to sue John E. Stanley.</p> <p>It was in evidence for the plaintiff, that the defendant, on the 19th of February, 1849, paid a part of the note; that at the time of making the payment he said that he had signed a note for his brother John E. Stanley; that he had become surety for his brother to the plaintiff, who furnished him with goods and thereby helped him; that he, the defendant, was secured, and held a bill of sale or a mortgage of the goods and effects of John E. Stanley to secure him ; and that the plaintiff was pressing him for payment.</p> <p>The defendant then introduced evidence tending to show that he did not put his name on the note until the 14th of February, 1849. The defendant also put in evidence the deposition of Horace Mecorney, who testified, that, in the latter part of February, or the early part of March, 1849, the plaintiff called on John E. Stanley to pay or secure a note which the plaintiff held against him; that John replied, that he would try to get his brother Douglas, who was in the next room, to sign with him, and asked the plaintiff if he would accept of that, to which the plaintiff answered that he would; that John then went into the room where his brother was, and both came together, immediately, into the room where the witness and the plaintiff were; that the defendant then said to the plaintiff, that if he would not ask him for payment nor call on him for it in less than six months, he would sign with his brother; that the plaintiff then said he would not, and they made a writing to that effect, which the plaintiff signed; and that thereupon the defendant indorsed his name on the note.</p> <p>The plaintiff, upon these facts, insisted, that the defendant was liable on the first count in the declaration, if not on the others. But the judge ruled and instructed the jury, that if the defendant did not put his name on the note at the time it was given, but at the time and in the manner stated in the deposition of Horace Mecorney, he was not liable on the first count; and that to sustain the three last counts, it was not sufficient for the plaintiff to prove a forbearance to sue John E. Stanley; but that he must prove an agreement, binding upon the plaintiff, to forbear to sue John E. Stanley; that an agreement not to sue the defendant would not be sufficient and that there seemed to be no sufficient evidence in the case, from which' the jury could infer an agreement to forbear to sue John E. Stanley, leaving that question, however, to the decision of the jury.</p> <p>The jury returned a verdict for the defendant, whereupon the plaintiff alleged exceptions.</p>

<p>Offences against the statute of 1791, c. 58, for the due observation of the Lord's day, are not originally cognizable in this Court.</p>

<p>An action, brought against C. by B. to recover damages for the loss of a debt for goods sold by him to P. on C.’s recommendation, was compromised by C.’a paying a certain portion of the debt; and B. gave C. a written receipt, containing an agreement that B. should pay C. a similar proportion of any amount which he should receive from P. B. had previously obtained, to secure this debt, a policy on the life of P., containing a condition, that in case of loss he would assign to the insurance company a portion of the debt equal to the sum received of the company. B., at the time of the compromise, offered to give C. an interest in the policy, if he would pay a portion of the premium, which C. declined to do. It was held, that in case of loss and payment by the insurance company, assumpsit would lie by C. against B., to recover a proportion of the amount paid him by the company, after deducting the premium paid and incidental expenses.</p>

In this case, which was argued upon exceptions taken by the defendant to the rulings of Hoar, J., before whom the case was tried in the court of common pleas, the facts are sufficiently stated in the opinion of the court.

<p>This action was trespass, brought to recover damages for taking the personal chattels of the plaintiff, to satisfy a tax assessed on him for the use of a school district in the town of Upton, in this county, in the year 1804, against the defendants, as assessors.</p> <p>* The action was tried upon the general issue, before Sedgwick, J., at an adjournment of the last September term in this county, and a verdict given for the defendants.</p> <p>At the trial, it was agreed that the defendants, at the time of the assessment of the tax for which the plaintiff's chattels were dis-trained, were the assessors of Upton, duly elected and sworn ; — that the assessment was duly made for money legally voted by an established school district in that town for the purpose of erecting a school-house in the same district: — that the plaintiff was an inhabitant of that town, residing in a-district other than that for which the tax was granted, and haying lands in his own occupation in the district wherein he resided ; — that the tax, for which the chattels were taken, was for the lands of the plaintiff only which lay in the district first mentioned ; — that the goods mentioned in the plaintiff’s declaration were taken by the collector, and sold in the manner prescribed by law ; — and that they were the property of the plaintiff.</p> <p>The lands, for which the said tax was assessed, were not assessed for the use of any other district in the year 1804, nor was the plaintiff assessed in that year for the use of any other school district.</p> <p>On the part of the defendants, evidence was given to the jury, to prove that the lands, for which the tax was assessed, were, during the year 1804, occupied by N. Beals, as the tenant of the plaintiff. This evidence was opposed by testimony given on the part of the plaintiff, that Beals occupied the lands merely as the plaintiff’s servant, and for his benefit.</p> <p>It was proved by evidence unimpeached and unquestioned, that at a meeting of the defendants as assessors, for the purpose of making a valuation of the taxable property of Upton, at which meeting the plaintiff and Beals were present, the plaintiff desired the assessors, in the presence of Beals, to place the said land, for which the tax was assessed, and which was in the occupation of Beals, vo the plaintiffs account of taxable property, informing them that he * was to be taxed for it; with which request the assessors complied.</p> <p>The judge, who sat at the trial, directed the jury, that if they were satisfied that the lands, for which the tax was assessed, were in the actual occupation of Beals, as the tenant of the plaintiff, and not in the plaintiff's own occupation, they ought to find their verdict for the defendants; and otherwise for the plaintiff; and vhey found for the defendants.</p> <p>The plaintiff moved for a new trial for the misdirection of the judge; and the cause stood over to this term for the consideration of that motion.</p>

Entry sur disseisin, in which the demandants count on their own seisin within thirty years, and on a disseisin by the tenants. The original writ was directed to and served by a coroner, and the reason alleged therefor was that one Gibbs Sibley was a member of said parish, and also a deputy of Thomas W. Ward, .Esquire, sheriff of the county of Worcester.

The plaintiffs were described in the writ as of Hartford, in the state of Connecticut. The writ bore no indorsement, except “ office of William R. Hooper,” who was the attorney of the plaintiffs, and made the writ and the indorsement. The defendant moved in the court of common pleas, that the action be dismissed for want of a sufficient indorser; which motion being overruled, he alleged exceptions.

<p>The petitioner, on the 19th of September, 1851, filed a petition under oath before Henry Chapin, a commissioner of insolvency for this county, setting forth that she was a creditor of Prince Davis, who was within one year previous a resident in said county, but now supposed to be in California; that her debt, the nature of which she particularly described, amounted to one hundred dollars, and was provable against the estate of Davis according to the provisions of the insolvent laws: That on the 28th of April, 1851, all the right and interest of Davis, in and to certain real estate in the county of Worcester, was attached on mesne process, for the sum of one hundred dollars and upwards, in a civil action founded on a demand in its nature provable against Davis’s estate under the insolvent laws, on a writ sued out of the court of common pleas by Ridolpho Wolfe of New York, and returnable to the last June term of that court: That Davis being then out of the</p> <p>commonwealth, an order of notice to him was taken out, and duly published, returnable at the September term of that court, at which term Davis appeared by attorney to defend the action: And that Davis did not dissolve the attachment within fourteen days from the last named return day. And the petitioner prayed that a warrant might be issued' to take possession of Davis’s estate, so that it might be seised and distributed according to law; and that such further proceedings might be had in the premises as the law in such cases prescribes.</p> <p>On this petition an order of notice to Davis was issued by the commissioner, returnable before. him on the 25th of September, and was duly served on Davis, who appeared before the commissioner at the time appointed. At the hearing before the commissioner, the allegations of the petition were duly proved; and it also appeared that the real estate attached was described by metes and bounds in the officer’s return. But the commissioner refused to grant the prayer of the petitioner upon the ground that the petition was not filed within ninety days after the expiration of the June term of the court of common pleas; and ordered the petition to be dismissed.</p> <p>The petitioner, on the 30th of September, presented a petition under oath to this court, setting forth the above proceedings ; and praying that the commissioner might be summoned to appear and show cause why a writ of mandamus should not be issued, commanding him to issue his warrant to a messenger to take possession of the goods and estate of Davis according to the provisions of the insolvent laws; and that such other proceedings might be had touching the premises as law and justice might require.</p>

<p>After a divorce a vinculo had been decreed by the Supreme Court of the state of Vermont, the wife brought her action here, to recover of the husband the proceeds of certain promissory notes given to her before the marriage, which were received by him after the divorce; and she had judgment: the court refusing parole evidence, that the court of Vermont, in settling the wife’s alimony, took into consideration the said proceeds as belonging to the husband when they should be received by him.</p>

The defendant was attached “ to answer to Arnold Buffum, of Providence, in the county of Providence, Sfc., agent of the Providence Hat-manufacturing Company, in a plea of the case for that the said I. C., at, &c., on, &c., by his note of hand of that date, for value received of the Providence Hat-manufacturing Company, promised the said A. B., as agent thereof, to pay to him or order the sum of, &c., to the damage of the said A. B., in his said capacity,” &c After a verdict…

This was an action of assumpsit, tried in the court of common pleas, before Merrick, J., to whose ruling the defendant alleged exceptions. The opinion of the court exhibits the whole case.

This action was assumpsit for expenses incurred in the support of Hugh Casey, a pauper; and it was tried upon the general issue before Sewall, J., at the sittings after September term, 1809, in this county.

<p>This was an action of assumpsit on several promissory notes, and on an account. The defence relied on was a certificate of discharge under the insolvent laws, granted by the commissioner of insolvency for the county of Hampshire. The case was submitted to the court upon the following statement of facts: —</p> <p>The defendant in 1843 applied to the judge of probate for the county of Franklin for the benefit of the insolvent laws, and after due proceedings received a certificate of discharge. Becoming a second time insolvent, in 1849, he presented his petition to the commissioner of insolvency for the county of Hampshire, whereupon a warrant was issued to take possession of his estate, which was afterwards duly assigned by the commissioner. Within six months from the date of the assignment eleven creditors proved debts to the amount of $7,451.93 against his estate, and all gave their assent to the defendant’s discharge, in writing, which was duly filed. At a subsequent meeting of the creditors, held within the six months, the plaintiff presented for proof against the estate a claim, amounting to $4,256.04, which was disallowed by the commissioner. An appeal was taken from his decision, and afterwards sustained by this court, and the case remitted with orders to allow said claim; and it was accordingly allowed, and a dividend ordered and paid on all claims proved against the estate. At the expiration of the six months, and before the entry of said appeal in this court, the commissioner granted to the defendant the certificate of discharge now relied on in defence of this action. The assets of the defendant’s estate paid less than fifty per cent of the claims proved against it under the second insolvency. If, on the foregoing facts, the second certificate of discharge was improperly granted by the commissioner, or is otherwise invalid, judgment is to be entered for the plaintiff; otherwise for the defendant.</p>

<p>The defendant was indicted for “ that at, &c., on, &c., he had in his custody and possession more than ten, viz., twenty-five, false, forged, and counterfeit bank bills or promissory notes, payable to the bearer thereof, purporting to be twenty-five bank bills or promissory notes, signed in behalf of the Union Bank, for the sum of five dollars each, the said Union Bank being a corporation by law licensed and authorized as a bank within this .commonwealth ; and that he, the said Houghton, having knowledge that the aforesaid bills or notes, and each and every one of them, were false, forged, and counterfeit, did then and there willingly aid and assist in rendering the aforesaid false, forged, and counterfeit bills or notes, and each of them, current as true; and for that purpose did, then and there, and at one time, have and possess each and every one of the aforesaid false, forged, and counterfeit bills or notes, knowing the same to be false, forged, and counterfeit, with intent to utter and pass the same, and thereby to injure and defraud the president, directors, and company of the Said Union Bank, — against the peace of the said commonwealth, and against the form of the statute in such case made and provided.”</p> <p>*The defendant, being tried and convicted before Sedgwick, J., at the last April term in this county, moved in arrest of judgment, assigning the following reasons, viz.</p> <p>1. “That the said indictment does not contain any precise or sufficient description of the bills or notes alleged. to have been in the possession of the defendant, either according to the tenor or purport- of the same; nor is any reason alleged why they are not so described.</p> <p>2. “ That it is no where alleged or averred in said indictment, by whom the said bills or notes were signed, or what were the dates of the same.</p> <p>3. “ That it is averred in said indictment, that the said bills or notes were signed in behalf of the Union Bank, the said bank being a corporation by law licensed and authorized as a bank within this commonwealth ; whereas, in truth, no such corporation exists within this commonwealth.</p> <p>4. “ That it is alleged in said indictment, that the defendant was possessed of the said bills, with an intent to defraud the president, directors and company of the Union Bank; whereas, in truth, there is no body politic or corporate, or any person or persons, known by that name within this commonwealth.</p> <p>5. “ That there is no allegation in the said indictment of the defendant’s having knowledge of the false making, &c., of the said bills or notes.</p> <p>6. “ That it is not alleged in the said indictment that the said bills or notes were similar.”</p> <p>The cause stood continued to this term upon the said motion; and. now '</p>

On the petition of Richard Baker and William Baker, co-partners in trade under the name and firm of R. & W. Baker, the commissioner of insolvency for this county issued a warrant to a messenger to take possession of their joint and separate estates, and subsequent proceedings in insolvency were had according to law; and the assets of Richard’s separate estate paid fifty-five per cent on all debts proved against it; but neither the assets of William’s estate, nor of the joint…

<p>Where the charter of a railroad corporation provides that the capital stock shall consist of not more than a certain number of shares* “ the number of which shall be determined from time to time by the directors thereof,” the directors have no power to levy assessments upon subscribers for stock, before determining the whole number of shares.</p>

To an action of assumpsit, brought against the defendant, as executor of the last will and testament of Moses Gill, Esquire, de ceased, the defendant pleaded in bar, that the action was not commenced within four years after his acceptance of the said trust of executor.

<p>The first of these cases was an action upon the case brought by the owner of land bordering on a salt water creek, in which the tide regularly ebbed and flowed, to recover damages for injury done to his land and the buildings thereon, by means of the flowing caused by a dam erected by the defendant across the creek, for the purpose of working a mill, solely by the ebb and flow of the tide.</p> <p>The defence was that the creek was a stream not navigable, and that the plaintiff’s remedy was by complaint under the Rev. Sts. c. 116, commonly called the mill act.</p> <p>The parties submitted to the decision of the court the question, whether the defendant could avail himself of this defence, irrespective of the question of the navigability of the creek; with the agreement that if he could not, the defendant should be defaulted; otherwise, the case should go to trial.</p>

<p>By the practice of the courts in this state, judgment is presumed to be entered on the last day of the term; unless on motion it be in fact entered previously, in which case the time is minuted; and the thirty days, during which goods and estate attached on mesne process are held, are to be reckoned accordingly,</p> <p>A creditor’s choosing an appraiser, and receiving seisin of lands upon execution, are sufficient evidence of his election to extend his execution upon real estate, although the sheriff does not certify such election.</p> <p>A judgment creditor may extend his execution upon real estate, although there may be sufficient personal estate to satisfy his execution, and notwithstanding he may have attached such personal estate on his original writ i 1 the same suit.</p> <p>If one of two judgment debtors elect an appraiser to appraise land belong ng to them both, or to him only, it is sufficient; otherwise if the land belong solely to the other debtor.</p>

<p>This was an action of trespass quare clausum fregit. At the trial in the court of common pleas, before Wells, C. J., it appeared in evidence that the plaintiff was tenant at will, and the defendant the general owner, of the locus in quo ; and that the wife of the defendant, in company with a person employed for the purpose, entered the house occupied by the plaintiff, and cut off and carried away a copper pump, used for drawing water from the well; no resistance being made, and no violence used. And thereupon the presiding judge ruled, that if at the time of the trespass complained of, the plaintiff was tenant at will of the locus in quo under the defendant, he could not maintain this action. The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>A mortgagee, who has entered for the purpose of foreclosing his mortgage, cannot maintain against his mortgagor the process provided by Rev. Sts. c. 104, to recover possession of the mortgaged premises.</p>

<p>A general count in an action for defamation, as charging the plaintiff with stealing, is good.</p> <p>Where one said he would venture any thing the plaintiff had stolen the hook, the words, being proved to be spoken maliciously, were held to support a verdict for damages.</p>

This was a proceeding by complaint, under the Rev. St. c. 104, § 4, originally commenced before the police court of the city of Lowell, to recover possession of certain premises described in the complaint. A judgment being rendered in that court against the defendant, he appealed to the court of common pleas.

Debt upon a judgment of the Court of Common Pleas for this county, rendered at August term, 1803, for 53 dollars damage and 9 dollars 75 cents costs.

<p>This was an action of assumpsit on a policy of insurance, dated the 15th of February, 1842, whereby the defendants insured Benjamin Wilde against loss or damage by fire, “ under the conditions and limitations expressed in the act of incorporation ” of the defendants, (St. 1825, c. 141,) “ and subject to the lien upon the buildings insured, together with the land under the same, created by said act, for seven years,” “ the sum of $2,000, viz.: $1,000 on his dwelling-house No. 1, and $1,000 on his dwelling-house No. 2, [in Lowell,] payable in case of loss to John A. Lowell, Esq., of Boston, mortgagee.”</p> <p>The trial was in this court, when the following facts were admitted by the parties: In October, 1841, the plaintiff, then owning the land, gave Wilde a bond to convey to him in fee the land on which said dwelling-houses were afterwards erected, and to loan him $2,000 on mortgage thereon, besides the purchase-money; upon Wilde’s erecting buildings thereon of such value that Wilde could procure insurance on them to the amount of $2,000, and upon his procuring such insurance payable in case of loss to the plaintiff; the deed to be given on or before the 1st of April, 1842; and the mortgage to secure the loan and purchase-money to be made at the same time, payable in ten annual instalments, with interest an* nually. Wilde accordingly erected said dwelling-houses, each of the value of at least $1,500, on said land, and procured this policy thereon. The application, (which was not referred to in or made a part of the policy), was dated at Lowell, the 15th of February, 1842, signed by Benjamin Wilde, and purported to be “ taken and transmitted by Joel Adams, agent; ” and contained eight printed questions, and written answers thereto, the eighth of which questions and answers was as follows: “ 8. Whether incumbered, by what, and to what amount ? If not incumbered, say so.” Answer. “ Mortgaged to John A. Lowell for $2,000, including about eight thousand feet of land.” This application was filled up by Joel Adams, one of the directors and an agent of the company, and the rate of premium was fixed by him.</p> <p>On the 1st of April, 1842, the plaintiff conveyed said land to Wilde in fee, and loaned him $2,000; and Wilde mortgaged the premises to the plaintiff, to secure the payment of Wilde’s note of the same date for $3,842.75, payable in ten annual instalments, with interest annually; said note being given for the loan of $2,000, and the purchase-money of the land. On this note and mortgage $2,042.75, and interest from April 1,1848, were due and unpaid on the 16th of May, 1848, and still remain unpaid. On the 12th of April, 1842, Wilde conveyed one undivided half of said land to James Bowers, to whom, on the 21st of March, 1845, he conveyed all his remaining interest in the land. On the night of the 16th of May, 1848,.the dwelling-house No. 1, was wholly destroyed by fire; of which the defendants’ directors had due notice, but refused to determine the amount of the loss, or to allow or pay the same.</p> <p>Benjamin Wilde testified, that before he closed the bargain with Lowell, he went to Adams to see if he could get the insurance before he had a deed of the land; that he then took the bond of the tenor above stated, and showed it to Adams to see if it was right, and Adams examined it; that in February, 1842, he carried the bond to Adams to have the insurance made; that Adams prepared the application, and he signed it, but did not notice it particularly; that Adams had read the bond through, and knew the whole of it; and that the buildings were worth and cost more than $3,000, besides the cost of the land, which was twenty-five cents a foot. It was also in evidence that Adams had notice of the conveyances from Wilde to Bowers, when they were made.</p> <p>Joel Adams testified, that he was an agent and director in the defendants’ corporation; that he wrote the application, and supposed it was drawn from facts stated by Wilde; that he did not recollect what was stated by Wilde, nor that he saw the bond; but that he might have seen it, as Wilde was often in his office; that on the 30th of December, 1846, an assessment was ordered by the company, payable on or before the 30th of January following; that within three or four months after the 1st of January he called on both Wilde and Bowers to pay the amount assessed on the premium note given by Wilde at the time of procuring this policy; but it had never been paid; and that within thirty days after receiving said assessments from the company for collection, he paid them in advance on the same $1,000 at one time, and other sums afterwards, so that, before the time of the fire, he thought he had paid the company all that would be coming to them on the assessments, above his fees. There was no evidence that the plaintiff ever knew of the assessments, or of the conveyances to Bowers.</p> <p>There being no fact in dispute, the case was taken from the jury by consent of parties, to be submitted to the full court, with the agreement that the court, on the foregoing facts, and so much of the above testimony as was competent evidence, might enter such judgment, as in their opinion the law might require.</p>

The decree of the Probate Court appealed from in this case had appointed the respondent, Bennet, guardian of the person and estate of the appellant, as a person non compos * mentis. This decree was founded upon an inquisition made by the selectmen of the town of Middleborough, of which the appellant is an inhabitant, by virtue of a warrant issued by the judge of probate, pursuant to the provisions of the statute of 1783, c. 38, $ 3.

The libel in this case, which was for a divorce a vinculo lot adultery, alleged that the respondent had deserted the libellant, had left the commonwealth, and, during his absence, had committed the crime of adultery with a woman unknown to the libellant. Mitchel, in support of the libel, offered evidence of adultery committed in Greenwich, in the county of Hampshire, and within the commonwealth.

Upon the application of the devisees named in the last will of the late Hon. William Sever, deceased, commissioners had been ap pointed, by warrant from the Probate Court, to divide the real estate of the said deceased among the said devisees, pursuant to the provisions of the statute of 1783, c. 36, 12. The commissi oners reported a division, which was accepted by the judge of •probate. From that acceptance, the appellant entered his appeal.

This was an action of assumpsit. The declaration contained tluee counts on three several promissory notes, made by the defendant to Hannah Beals, the plaintiff’s intestate, who died within six years before the commencement of the action. The defendant pleaded three several pleas, viz., 1. The general issue. 2. That lie never promised within six years before the action was commenced. 3.

<p>This was an action of assumpsit, brought by the plaintiff, for the benefit of Eliphalet Wheeler, returnable at the October term, 1849, on a policy of insurance, whereby the defendants, on the 13th of March, 1844, insured Elijah Bemis and Cyrus Bemis against loss or damage by fire, under the conditions and limitations expressed in the rules and regulations annexed to the policy, for seven years, $600 on their dwelling house, “ payable in case of loss to John T. Macomber, mortgagee.” Among these rules and regulations was the following: —</p> <p>“Am. 7. When any building shall be alienated by sale or otherwise, the policy shall thereupon be void; but the grantee or alienee, having the policy assigned to him by the insured, upon application to the secretary, within thirty days, may, with the consent of the president, have the policy renewed, upon becoming responsible for the payment of his, her, or their proportion of the conditional funds; and. by such renewal, the person or persons causing the same shall be entitled to all the rights and privileges to which the original insured was entitled under the said policy; and in case application and renewal shall not be made, as aforesaid, the policy may be surrendered, and the insured shall be entitled to receive his, her, or their deposit note, upon payment of his, her, or their proportion of all losses and expenses that have accrued prior to such surrender.</p> <p>No mortgaged estate shall be deemed to be alienated, within the meaning of this article, until the mortgage shall have been foreclosed. And any policy, payable to a mortgagee in case of loss, shall continue so payable, notwithstanding any alienation of the estate, made subsequent to such mortgage; provided, such mortgagee shall pay any and all assessments, for which the company would have had a lien on the estate, if no such alienation had been made, if the original insured shall not pay the same on demand.”</p> <p>The following facts were agreed by the parties: —</p> <p>On the 17th of February, 1844, Elijah Bemis and Cyrus Bemis, being then the owners of the premises insured, mortgaged the same to Macomber. Elijah Bemis died in 1846, leaving a widow and eight children. On the 1st of September, 1847, Cyrus Bemis, and the widow and seven of the children of Elijah Bemis, duly conveyed all their interests in this estate to Eliphalet Wheeler; to whom the interest of the remaining child was also duly conveyed on the 14th of the same month. No notice of these conveyances was given to the defendants. After these conveyances, in 1846 and 1848, two assessments were laid by the defendants upon the deposit note, and collected of Cyrus Bemis.</p> <p>On the 19th of November, 1846, Macomber assigned his mortgage, and all his interest in the policy, to Hollis Cloyes, who, on the 22d of September, 1847, assigned the same to said "Wheeler; and Wheeler, on the 34th of September, 1847, entered upon the premises, in the presence of witnesses, for the purpose of foreclosing the mortgage, and has since been in possession of the estate. On the night of the 26th of March, 1849, the dwelling-house described in the policy was wholly destroyed by fire; of which the defendants ha-’ due notice.</p> <p>The parties agreed that the plaintiff should be nonsuit, or the defendants defaulted, as the court, upon the foregoing facts, should direct.</p>

Assumpsit upon a promissory note, made by the defendant to Solomon Thompson or order, and endorsed to the plaintiff’s testator, William Bennett.

<p>This was a special action of the case against the defendant for diverting an ancient water-course which passed through the plain-ti. - close, and by which it was fertilized, so as to produce annually a large crop of grass.</p> <p>The cause was tried before the chief justice, upon the general issue, at an adjournment of the last October term in this county, and a verdict found for the plaintiff, by the consent of the parties, subject to the opinion of the Court upon the following íeport of the judge who sat at the trial.</p> <p>It was proved that there was an ancient brook of running water, as described in the.declaration ; and that the plaintiff was seised of the close therein mentioned ; and that this water-course first passed by the defendant’s meadow, which was bounded on it; that in its natural course it passed by several meadows belonging to persons not parties to the action, and then passed by the plaintiff’s meadow, as alleged in' his declaration ; that the defendant, claiming a right to divert the water for any purpose as he pleased, in fact cut * several sluices in the bank of the water-course, in his own land, that he might, with the water passing through those sluices, irrigate his own meadow; that the water thereby passed on to the defendant’s meadow through those sluices, but afterwards passed into the same brook above the plaintiff’s meadow, except such part as was absorbed in the defendant’s meadow, or evaporated; and that so much of the water was absorbed in the defendant’s meadow, or evaporated, in consequence of the sluices so opened by him, that less water than usual came to the plaintiff’s meadow, by reason of which his said meadow wot greatly damaged, the quantity of grass produced thereon being materially diminished.</p> <p>If, upon these facts, the defendant had a legal right to divert the water from the said ancient water-course, for the purpose and in the manner aforesaid, the verdict was to be set aside, and a new trial granted; otherwise the verdict was to stand, and judgment to be entered accordingly.</p>

<p>The provision of the Rev. Sts. c. 91, § 15, “that the bail” of any person arrested in a civil action, who shall surrender him, as provided in § 12, “ shall within fourteen days after such surrender, deliver to the jailer a copy of the original writ or process whereby the prisoner was arrested,” is directory merely, and not a condition precedent; and a failure to deliver such copy within fourteen days is not fatal to the subsequent proceedings.</p>

This was an action of the case in assumpsit brought against the defendant for not paying the amount of certain assessments for the expense of making the said turnpike road. The declaration contained six counts.

<p>A debtor, surrendered by his bail, and discharged on giving bond, pursuant to St. 1837, c. 198, conditioned to surrender himself at the prison on a certain day, commits no breach of such bond by being without the prison limits until that day.</p>

<p>This was a writ of entry, in which the demandants counted upon their own seisin, in right of the wife, of one forty-second part of the lands described in their writ, and upon a disseisin by the tenant.</p> <p>The parties submitted the action, or rather the right of the demandants to recover in any form of action, to the determination of the Court, upon a statement of facts, in substance as follows : —</p> <p>The demandant Eunice Kenney is the daughter of Thomas Cranes Jun., who was the eldest son of Thomas Crane, Sen., and died in the year 1787, intestate, living his father, and leaving the said Eunice and six other children his heirs at law. Thomas Crane. Sen., died in the year 1804, intestate, and seised of the demanded premises; and his real estate, after payment of the debts and charges of administration, exclusive of his widow’s dower, was appraised at the sum *of 3925 dollars. He left six children, viz., Elijah Crane, Ruth Barker, Sarah Bird, Mary Wales, Rebecca Crane, and Abigail Gill, together with the said children of his son Thomas, his heirs at law. The said Thomas Crane, Jun., on the 29th of April, 1774, being then more ■than 21 years of age, by his deed of that date, in consideration that his father and mother had, at his request, and as, and for his advancement in his said father’s and mother’s estate, advanced and paid him the sum of £133, 6s. 8d. lawful money, (equal to 444 dollars 44 cents,) released and quitclaimed to his said father and mother, and their heirs and assigns, forever, “ all such right, estate, title, interest, and demand whatsoever, as the said Thomas Crane, Jun., had, or ought to have, in or to all the estate, real or personal, of the said Thomas Crane and Mary Crane, that now is, or may be hereafter, by any ways or means whatsoever, that would otherwise be mine by heirship; ” The said deed being made, and the said money paid, with the knowledge of the family of the said Thomas, Sen. — A similar deed, and for the like consideration, was afterwards made by the said Elijah Crane. — The estate of the said Thomas Crane, Sen., after his decease, and after payment of his debts, &c., was, in the year 1807, by a warrant from the judge of probate for this county, divided among his children and heirs, (except the said Elijah, and the children and heirs of the said Thomas, Jun.,) who entered and became possessed of the same, agreeably to said division.— The tenant Tucker derives his title and possession from the said children and heirs of Thomas Crane, Sen.</p> <p>Upon these facts it was agreed that if, in the opinion of the Court, the demandants were entitled to recover in any form of action, the tenant should suffer judgment to go against him by default; otherwise the demandants were to become nonsuit.</p>

This was an action of trespass qua/re clausum fregit. The defendant, in justification of the alleged trespass, relied on a right of way over the plaintiff’s close, as appurtenant to an adjoining lot of land, belonging to the defendant.

<p>In debt on bond to prosecute a writ of replevin, the plaintiff is entitled to recover the value of the goods replevied, with the damages and costs recovered, and interest on such damages and costs from the date of the judgment in replevin, to the time of rendering judgment on the bond.</p>

<p>Covenant broken on a deed of the defendant to the plaintiff, made, for the consideration of 1676 dollars, to convey part of a messuage, &c., with covenants of a lawful seisin, good right to sell, premises free of all encumbrances, &c. The plaintiff avers that the defendant was not lawfully seised, that the premises were not free of encumbrances, and that Gillam Taylor had recovered the premises in a suit against the plaintiff, and ejected him by a lawful title. — The defendant pleads in bar, that Townsend, at the time of the conveyance, knew of the deed of defeasance under which Taylor recovered, and accepted the deed with an agreement that the defendant, Weld, should not be charged in the event of a recovery under that deed. This is traversed in the replication, and an issue taken thereon.</p> <p>Upon the trial of this issue, before Sewall, J., at the last March term in this county, the defendant offered to prove the agreement averred in his plea in bar, by parole testimony, which the judge ruled to be incompetent, and the parties proceeded to an inquiry of damages. The plaintiff finally consenting to take the sum mentioned as the consideration of the deed, with interest thereon, and his expenses in Taylor’s action against him, including the fees of counsel, a verdict was accordingly found for the aggregate of these sums. The defendant, waiving his review, moved for a new trial, for the judge’s rejection of the parole testimony.</p>

Debt on bond. Upon oyer it appeared that the bond was made to the plaintiff, as a deputy sheriff of the county of Norfolk, with the following condition, viz.: “ The condition of the above obligation is such, that if the above bounden J. A. and J. A., Jun., do appear at the next county court to be holden at Dedham, within and for the county of Norfolk, aforesaid, on the last Tuesday of September next, and then and there prosecute his action with effect against the said…

Trespass for breaking and entering the plaintiff’s close, and taking and carrying away one gelding and two heifers, the property of the plaintiff.

<p>Where a .workman, in the employment of a manufacturing company, made an assignment of the wages then due, and which should thereafter become due, to him, to a certain date, in consideration of being indebted to the assignee, and an Undertaking on the part of the latter to supply the former with groceries, from time to time, as his family might need them; it was held, that the assignment, in the absence of fraud, was valid, and transferred to the assignee all the assignor’s interest in his wages for the time specified.</p>

In replevin of goods, which had been attached by the defendant as a deputy sheriff, the goods were valued at 150 dollars, and the coroner was directed to execute the precept, provided the plaintiff in replevin should first give bond in the sum of three hundred dollars. But the coroner actually took a bond in the sum of 800 dollars, the plaintiff’s damage in the writ, upon which the goods were attached, having been laid at 400 dollars; and this had probably misled the coroner.

This was an action of trespass for taking and carrying away certain chattels of the plaintiff’s. The cause was submitted to the Court on an agreed state of facts, of which the following is the substance.

<p>In an action on the guaranty of a promissory note, tried in the court of common pleas, and brought before this court on exceptions, it cannot be objected that the declaration contains only the money counts, unless that objection was taken at the trial.</p> <p>Where a guaranty is made on a promissory note before it is delivered by the maker to the payee, no proof of a distinct consideration is necessary in order to charge the guarantor; and in an action against the latter, when the guaranty is without date, and there is no direct proof of the time when it was made, it may be left to the jury to find that it was simultaneous with the note itself The guarantor of a promissory note, who in his guaranty expressly waives demand and notice, is liable to an action thereon without previous demand or notice.</p>

This was an action commenced on the 6th of March, 1849, -Against the defendant, as the indorser of a promissory note, signed by J. F. Woodman and Company, of which the following is a copy: — “ Boston, October 5th, 1847. $218.44. Sixty days after date, we promise to pay to the order of John C. Thurston two hundred and eighteen dollars forty-four cents, value received.” Over the signature of the indorser was written a waiver of demand and notice.

This was a writ of entry sur disseisin, in which the demandant counted upon his own seisin, and upon a disseisin by the tenant. The tenant prays to be heard in chancery on the suit, and avers that at the time when the conveyance, under which the demandant claims the land described, was executed, viz., on the 7th of April, 1808, the demandant made and executed to him a deed of defeasance, which he sets forth.

<p>The general school committee of a city or town have power, under the laws of this commonwealth, in order to maintain the purity and discipline of the public schools, to exclude therefrom a child whom they deem to be of a licentious and immoral character, although such character is not manifested by any acts of licentiousness or immorality within the school.</p>

<p>Debt on bond, conditioned that Nathaniel Tolman should continue a true prisoner in the custody of the jailer, &c. Issue was joined on the question of escape, and a verdict found for the plaintiff, subject to the opinion of the Court upon a case agreed, which was to the following effect: —</p> <p>At the time alleged in the plaintiff’s replication, the said Nathaniel was a prisoner in the jail at Dedham, at the suit of the plaintiff, and had given bond according to the statute, the defendant being his surety, conditioned to be a true prisoner until he should be thence lawfully discharged. On the 19th day of February, 1803, he was released from confinement, by taking the poor prisoner’s oath. From the date of the said bond until so discharged, he slept and remained during the night time in the house of one William Smith, in which house all the other prisoners, who had given bond for the liberty of the yard, also passed the night.—In December, 1801, the Sessions passed the following order, viz.: “ On verbal report of a committee, ordered that William Smith’s east chamber be accepted for the present, as appurtenant to the jail, for accommodation of such debtors only as may give security for continuing true prisoners.” — Afterwards, in September, 1802, the Sessions passed the following order, viz. : “ Ordered that the whole of William Smith’s house be considered as part of the jail, for such debtors only as shall have liberty of the yard, instead of one chamber, as heretofore.” — The said house remained so appropriated by the Sessions for. the purpose aforesaid until the said Nathaniel was discharged. During the said term, the rent of said house for the said use was paid by the county. During the said Nathaniel’s confinement, the keeper of the jail exercised no control over said house, nor over the said Nathaniel, who was not in the county jail du.ring that time, unless the said house should be considered part of the said jail.</p>

<p>Administrators of an insolvent estate, under a license of court to sell the real estate of their intestate for the payment of his debts, sell an equity of redemption, of which their intestate was supposed to die seised, (the grantees at the same time purchasing an assignment of the mortgage ;J and in their deed the administrators covenant, in their said capacity of administrators, that they, as administrators, are lawfully seised of the premises; that they are clear of all .encumbrances, except the mortgage ; that they have, in their said capacity, good right to sell, &c.; and that, as administrators, they will warrant and defend the same to the grantees and their heirs, &c., against the lawful claims of all persons ; and they sign and seal the deed as administrators. — In an action against them upon the covenant to warrant, &c., after an eviction by a paramount title, it was holden that they were answerable personally on their covenant; and that the measure of damages was the consideration money and interest, with the costs that had arisen to the grantees in defending against the suit, by which they had been finally evicted; and not including the money paid for the assignment of the mortgage, nor for the release of dower by the intestate’s widow.</p>

<p>The owner of shares in a corporation, who refuse to give him certificates thereof on demand, or to recognize him as the owner thereof, but sell the shares to another person, may recover of the corporation in assumpsit the value of the shares at the time of his demand.</p> <p>The members of a partnership organized as a corporation, under an act obtained for the purpose, and the corporation purchased the property of the partnership at a valuation. In an action brought against the corporation by one of the members to recover the value of certain shares in their stock, of which he claimed to be the owner, but which the corporation had refused to give him certificates of, and had sold for non-payment of assessments, the plaintiff was permitted to give evidence of a verbal agreement between all the parties, previous to the purchase by the corporation, that the whole property of the partnership should be transferred to the corporation at the valuation, and that each partner’s interest in the partnership stock should be applied towards paying for his shares in the corporation. After the defendants had introduced evidence to the point, whether the personal property of the corporation was sufficient to pay their debts, the plaintiff was allowed to give evidence, that, at the time of the transfer to the corporation, it was understood by all the parties that the corporation had made money. The jury found, that the amount of the plaintiff's interest in the partnership was sufficient to pay all the assessments on his shares. It was held, that the admission of the evidence introduced by the plaintiff was no ground for a new trial. It was held, also, that an account of the plaintiff’s payments towards his shares in the stock of the corporation, drawn up under the direction of the general agent of the corporation for receiving all moneys advanced to pay for shares, was rightly admitted in evidence for the plaintiff.</p> <p>A stockholder and director in a manufacturing corporation, which has failed to comply with the provisions of Rev. Sts. c. 38, §§ 16, 17,19, 22, and who is therefore individually liable for its debts, is an incompetent witness in favor of the corporation in an action brought against it by one claiming to be a stockholder to recover the value of shares withheld by it from him.</p>

<p>Proof of the execution, delivery, acknowledgment and recording of a mortgage from a third person to the demandant, is sufficient, prima facie, to sustain a writ of entry to recover the land mortgaged.</p> <p>Where the tenant in a writ of entry pleads nvl disseizin, the demandant is not bound to prove the tenant’s possession.</p>

<p>This was an action of trespass quare clausum fregit against a committee of the town of Sudbury, for building a school house under a vote of the town, upon the premises described in the writ, being a parcel of land in the village of Sudbury, containing about three fourths of an acre, separated only by a road, and not by any fence, from the lot on which the plaintiff’s meeting-house has always stood; the latter, together with the locus in quo, having been always kept open and unfenced as a common.</p> <p>One portion of the locus in quo, up to about fifty years ago, had been used for the erection of some four or five horse-sheds, which had remained there a long time previous, and been used by the persons attending meeting at the meetinghouse. Up to March 1st, 1836, the town of Sudbury and the first parish were the same, the business relating to all parochial matters being transacted by the town; at that time the separation took place, and the plaintiffs adopted a separate organization, which has been kept up ever since.</p> <p>The common unfenced land aforesaid, including the locus in quo, has been levelled off three times, by taking gravel from the locus in quo, carting it upon the other part of the common, and smoothing off the different parts of it; the first time, about fifty years ago, when the meeting-house was built; the second time, about twenty-four years ago, when the same was repaired; and the last time about seven years ago, when the same was altered. And in 1836 the town dug off about one foot in depth of the ground from a rise in one part of the locus, and used it for mending the public roads of the town. An old school-house stood on the locus in quo, from before 1735 until about 1798, when it was removed to a site back of the town-house, and during all this time was used to keep the town schools in. And while the school-house so stood upon the locus, the town of Sudbury, pursuant to a vote of the town to that effect, built a tower attached to the schoolhouse, making the entrance of the latter through the tower; and in the tower hung a bell, which was used for municipal and parochial purposes, until the school-house was removed. After the school-house had remained on its second site back of the town-house, about twenty-five years, the town voted to permit the school district to remove it back to the locus in quo, at their own expense, which was done; and it remained there eight or ten .years, when the town again voted to permit some of the inhabitants of the district to remove it at their own expense, to another part of the common, where the townhouse now stands. It was so removed, and remained there till 1846, when the present town-house was built, and the school-house removed to a piece of land hired by the town for that purpose, where it remained till 1847, when a new schoolhouse was built by the town substantially on the site occupied by the first one, which was erected previous to 1735.</p> <p>In 1723, the proprietors of common lands in Sudbury granted the land on which the meeting-house stands, and the common about it, not including the locus in quo, “ to the west precinct in Sudbury,” “ for the conveniency of said west precinct’s meeting-house, and for a burying place.” The east and west precincts in Sudbury corresponded with the present towns of Wayland and Sudbury. The east precinct was in 1780 erected into the town of East Sudbury, (afterwards changed in name to Wayland,) leaving the west precinct the present town of Sudbury. The terms, east and west precinct, were used previous to such separation, to distinguish the different portions of the original town, as different parishes of the same town, and also for all other purposes, as well municipal as parochial.</p> <p>Grants were made by the proprietors of common lands in Sudbury for the support of the ministry in the west parish, out of which a fund has arisen, which has since come into the possession of the plaintiffs.</p> <p>The locus in quo was included in a grant from the proprietors of common land to Richard Biddlecom in 1722. And said proprietors in 1740 exchanged with John Haynes “ some part of the land laid out for a training field,” &c.; in consideration of which Haynes conveyed “ unto the inhabitants of the westerly precinct in said Sudbury forever, all his right, title and interest in and unto about half an acre of land laid out to the right of Richard Biddlecom, within the common and undivided land in said Sudbury, and on the westerly side of Sud-bury River, and is the land whereon the school-house now stands ”</p> <p>For more than one hundred years the whole common, both the locus in quo, and that part on which the meeting-house stood, has been used as a training field by the militia of Sud-bury, without any objection from any source.</p> <p>The case was submitted to the court upon the foregoing statement of facts, with power to draw such inferences as a jury would be warranted in making, and to render such judgment as the law and facts might require.</p>

This was an action of trespass for breaking and entering the school-house of the plaintiffs on the 16th and 17th of March, 1848 ; and was submitted to the court on the following statement of facts: — In the year 1832, the town of Natick was divided into six territorial school districts, of which the plaintiffs were one.

<p>Where the owners of land in a city open and dedicate it to public use, as a foot-way, placing a fence across it, which allows foot passengers to pass, but is dangerous to horses and carriages, the city, whether they have accepted the way or not, are not liable for an injury occasioned by the fence to a horse and carriage, though driven with ordinary care and skill.</p>

<p>This was a special action on the case on the Rev. Sts. c. 109, § 78, for the alleged false statements under oath, of the defendant, made by him in answer to a trustee process. The trial was before Mellen, J., in the court of common pleas.</p> <p>The plaintiff having brought an action in the police court of Lowell, in which the defendant was summoned as the trustee, the defendant was defaulted, and the plaintiffs thereupon sued out a writ of scire facias against him, in answer to which the alleged false answers were given.</p> <p>The defendant appeared to the writ of scire facias, and filed a plea or answer thereto, to which he made oath, denying his liability as trustee, and submitting himself to a further examination on oath. Interrogatories were then proposed to him by the plaintiff, which he answered, and was thereupon discharged. It appearing from the writ and declaration, that the plaintiff relied, in support of his action, upon the statements made by the defendant in his said plea or answer, and the examination. therein set forth, the defendant thereupon objected that the answer, not being required to be sworn to by law, and not being a part of the examination, could not be made the substantive matter of this action. But the judge overruled the objection.</p> <p>The defendant then objected, that there was a variance between the proof and the declaration, inasmuch as the declaration alleged that the false matter was sworn in the “ trustee examination,” whereas the proof was, that it was in the answer. This objection was also overruled.</p> <p>The plaintiff then introduced evidence tending to show the answers to be false in various particulars; but his whole proof was the testimony of one witness only to each fact; whereupon the defendant requested the judge to instruct the jury, that the defendant could not be proved guilty by the testimony of one witness only; but that something more was needed, than the testimony of one witness, to the falsity of each of the statements, in order to justify a verdict for the plaintiff.</p> <p>The judge declined so to instruct the jury, but instructed them, that if they were satisfied beyond a reasonable doubt, on the testimony of one witness only, that the answer of the defendant was knowingly and wilfully false, in that part thereof, in which the defendant answered that no more than the sum of four dollars and fifty cents was due from him to the principal defendants in the trustee process, at the time of the service thereof upon him, the.testimony was sufficient to warrant a verdict of guilty against the defendant.</p> <p>The jury, under the above and other instructions not material to be stated, returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

This was an action of assumpsit against Reuben N. Rice and David Loring, on a promissory note for $75, dated January 1, 1846, payable to H. A. Wheeler or order, on demand, with interest, signed “ R. N. Rice & Co.; ” and indorsed by II. A. Wheeler before the commencement of the action.

<p>These were indictments against the defendant; the first, for an assault upon William H. Clemence, a constable of Lowell, for the purpose of hindering and opposing him, in the discharge of his duty in the service of a warrant against one Francis Roark, other than the defendant; and the second, for an assault for the same purpose on one Crowell, the assistant of Clemence, in the service of the warrant. Both assaults, if any, were committed at the same time, and the indictments were tried together.</p> <p>At the trial in the court of common pleas before Wells, C. J., the warrant was not produced; and the district attorney, for the purpose of proving its loss, called one Caverly, a justice of the peace residing in -Lowell, who testified, that sometime in July previous, he received, at Lowell, a complaint made by one Crowell, for an assault upon him, by one Francis Roark, within the city of Lowell; and that he issued a warrant thereon, and delivered it to Crowell. Crowell testified, that he gave the warrant to Clemence, who testified, that he arrested Roark and brought him before the justice of the police court of Lowell, and returned the warrant to the office of the court, and that nothing further was done with Roark upon the complaint and warrant; that the defendant did not plead thereto and was not discharged therefrom; that no notice was taken of the warrant; and that a new complaint was made by the city marshal of Lowell, against Roark, upon which Clemence arrested and returned him before the police court of Lowell, taking no notice of the former warrant.</p> <p>Nathan Crosby, Esq., the standing justice of the police court, was called as a witness, and testified, that he remembered no such warrant; that it was .not unusual, when a person was brought before him on a complaint received and warrant issued by a justice of the peace, where such process was considered to be defective or unsuitable, to make out a new complaint and warrant, upon which the accused was arrested and tried; in which case, it was his custom to put the first complaint and warrant on file, without any further action upon it, with the new one issued; that he presumed he had done so in this case; but he had searched diligently and could not find any such warrant, and had no record thereof whatever.</p> <p>The district attorney then offered parol testimony of the contents of the first complaint and warrant, to which the defendant objected; but the judge overruled-the objection and admitted the evidence. The district attorney then called the said Caverly, to prove the contents of the warrant. The defendant objected to any such evidence, unless the witness could swear to the contents of the complaint and warrant, word for word; but the judge overruled the objections, and allowed the attorney to prove that there was a precept substantially complying with all the requisites necessary to constitute a warrant.</p> <p>The defendant further requested the judge to rule, that if Clemence did not continue his custody of the said Francis Roark, other than the defendant, in virtue of the warrant upon which he first arrested him, but abandoned that warrant, and arrested and held him under a new warrant for the same offence, he thereby became a trespasser ab initio, so far as the defendant was concerned; and that the defendant could not be convicted upon the indictment, for obstructing an officer in the discharge of his duty in the service of the precept thus afterwards abandoned. The judge refused so to instruct the jury, but did instruct them, that the acts of the officer, under the warrant, before it was so abandoned, were justified by the warrant; and that an interference and opposition to the service of the same before it was so abandoned would support this indictment.</p> <p>The evidence tended to prove, that the complaint and warrant were in the usual form, and were received and issued by said Caverly and made returnable before the police court in Lowell. The defendant requested the judge to rule, that it appearing that the complaint was received and the warrant issued by a justice of the peace, at Lowell, for an offence committed within the city of Lowell, the warrant was illegal and void, because the police court of Lowell had exclusive jurisdiction of such offences ; and that all complaints, for offences committed within the city of Lowell, must be received by some justice of that court, and all warrants upon such complaints and for such offences must be issued by them. The judge declined so to instruct the jury.</p> <p>The defendant, being convicted, alleged exceptions to the foregoing rulings and instructions.</p>

This was an indictment for robbery, which alleged that the defendants, at the time and place named therein, “with force and arms in and upon one Charles Pendexter, then and there in the peace of said commonwealth being, an assault did make, the said Isaac Clifford and James Bamerick not being then and there armed with a dangerous weapon, and him the said Charles Pendexter did then and there by force and violence feloniously put in fear, and did then and there feloniously…

<p>Where the damages, awarded by the county commissioners for land taken to construct a railroad, are reduced by a jury, on the application of the railroad corporation, and the verdict of the jury is accepted by the court of common pleas, neither party can recover of the other costs accruing after the award of the commissioners ; and the party appealing to this court, from the decision of the court of common pleas refusing to allow such costs, must pay to the other the costs of the appeal.</p>

This was a writ of error to reverse a judgment of this court, rendered at the October term for this county, 1845. The action, in which the judgment was rendered, was a writ of entry commenced in the court of common pleas, by Waugh against Riley, to recover a tract of land, of which Waugh claimed to be seized in fee and in mortgage.

<p>The owner of land, through which a railroad corporation were authorized to make their road, gave them a bond to convey to them by a certain day, on payment of a specified sum of money, so much of his land as should be taken by them by authority of law for the purposes of their road; and the corporation, within the time allowed by law, entered upon and took the land for the purposes of their road; but, on the owner’s tendering them, on the day named in the bond, a deed of the land so taken, refused to pay him the stipulated sum of money. It was held, that the agreement, not having been signed by the corporation, could not be specifically enforced against the corporation in equity.</p>

<p>One, in consideration of a dollar paid him, agreed by his deed not to run a stage on a certain road specified, under penalty of two hundred and ninety dollars the agreement was held valid, and the penalty mentioned was considered as the damages liquidated by the parties.</p>

<p>The administrator of a mortgagee, who during his lifetime recovered a conditional judgment on a writ of entry to foreclose the mortgage, may maintain a writ of entry in this court against a disseizor to recover possession of the mortgaged premises.</p>

<p>This was an action brought by the plaintiff, as administrator of the estate of Benjamin Muzzey, to recover damages for the non-fulfilment of a contract for the purchase of land.</p> <p>The plaintiff alleged in his declaration, and at the trial produced evidence tending to show, that he, being administrator of Muzzey’s estate, obtained a license from the judge of probate to sell so much of the real estate of his intestate, for the purpose of paying debts and charges of administration as would raise the sum of $42,611.54; that he took all the necessary legal steps and finally sold a portion of the said real estate at auction; that the defendant at said sale bid off, for the consideration of $7,280.32, certain tracts of land being those mentioned in the declaration, and signed an agreement in writing that he had purchased said tracts of land and would pay the consideration and take a deed thereof; and that he subsequently refused to pay the consideration and take the deed.</p> <p>The plaintiff also proved that subsequently to the refusal by the defendant, the plaintiff, as administrator as aforesaid and under the aforesaid license, again took the necessary legal formalities and again exposed to sale, “for the benefit of whom it may concern,” the said tracts of land by public auction at administrator’s sale, and that the parcels of land were sold for the sum of $5,303.91, being $1,976.41 less than the amount at which they had been bid off by the defendant.</p> <p>It also appeared that the appraised value of the real estate of the said Muzzey, according to the inventory returned by the plaintiff, was $51,650, being $9,038.46 more than the amount which the plaintiff was authorized to raise by sale under the license of the probate court.</p> <p>The plaintiff here rested his case. He produced no evidence of the amount of debts and costs of administration of the estate other than that contained in his petition on which the license of sale was granted; nor any evidence of the value of all of the real estate other than that contained in the inventory ; nor any evidence of any special damage to the plaintiff as administrator, or to the estate which he represented.</p> <p>The defendant, not controverting any of the facts, asked the judge to instruct the jury, that the plaintiff on this evidence was entitled to recover only nominal damages, or at most only an amount of damages equal to the costs of the second sale, because it appeared by the evidence that there was sufficient real estate to pay all debts and costs of administration notwithstanding the lesser price which the tracts of land in question brought at the second sale; and that therefore any injury or loss, caused by the non-compliance of the defendant with his agreement, was an injury to the heirs at law of Muzzey and not to the plaintiff as his administrator. But the presiding judge declined so to rule, and instructed the jury that the plaintiff was entitled to recover of the defendant the full difference between the amount of the first and second sale, with the costs of the second sale and interest. A verdict being returned accordingly, the defendant alleged exceptions.</p>

In this case the only question made was, whether Downs should be adjudged the trustee of Noyes the defendant. — And as to this, the facts appearing from Downs’s answer were, that he, after the marriage of Noyes with his wife Martha, now living, gave a note, not negotiable, payable to the said Martha, at a future day, which had not arrived at the time of the answer by Downs.

This action, which was tried before Fletcher, J., was brought in this court, on the 10th of November, 1849, to recover damages of the defendants for not making and maintaining two fences, one on each side of their road in Waltham.

<p>Of the effect of the delivery of a deed, and when it shall be considered as an escrow.</p> <p>[Evidence is admissible to show that a deed was delivered subsequently to the date of it. — Ed.]</p>

<p>This was an action on the case to recover damages for the breach of a written contract, dated the 19th of April, 1844, whereby the defendant, in consideration of certain payments to be made, and notes to be cancelled by the plaintiff, promised to convey to him, within twenty days from the date, certain lands in Stoneham and Malden. The breach alleged was, that although the plaintiff had always been ready to perform the contract on his part, and to accept a deed of the land, yet the defendant had neglected and refused to convey the same to the plaintiff; but, on the contrary, before the expiration of the twenty days, to wit, on the 9th day of May, con reyed the same to one Bigelow, and thereby disabled himself to perform his contract.</p> <p>The defendant pleaded the general issue, and specified in defence, that the subject-matter of this action had been before adjudicated by this court, in a suit in equity between the plaintiff and the defendant and Bigelow.</p> <p>At the trial, which was before Fletcher, J., the plaintiff, in order to prove the breach, produced an office copy of the deed of the premises from the defendant to Bigelow, dated May 9th, 1844, and recorded in the registry of deeds on the same day. The defendant then objected that the plaintiff had offered no proof, that he had himself been ready to comply with the terms of the contract on his part, or had in any way offered to do so, or that he had been aware of the conveyance of the premises to Bigelow; that the plaintiff therefore had no right to complain of the breach; and that the office copy was not sufficient evidence of a breach of the contract. But the presiding judge ruled that the office copy was sufficient evidence, in the absence of any other testimony, and that the plaintiff was not bound to furnish any evidence of a readiness or offer to comply with the terms of the contract on his part.</p> <p>It afterwards appeared in evidence, that the original contract was executed before noon of the 19th of April. The defendant thereupon contended that the plaintiff was bound to prove, that the deed to Bigelow was executed and delivered nefore noon of the 9th of May following. But the judge ruled otherwise.</p> <p>The defendant then offered to prove that after the 9th of May, and before the commencement of this action, the plaintiff brought a bill in equity in this court against this defendant and said Bigelow for a specific performance of this contract, and for relief; that in the bill, and in the answers and pleadings thereto, the whole subject-matter of this contract, and the consideration and breach thereof, were gone into and examined ; and that this court, upon a consideration of this bill, answers and pleadings, had ordered the bill to be dismissed with costs for the defendants. But the judge ruled that this evidence was not admissible to support the defence of former adjudication, and refused to receive the same for that purpose and in bar of the action.</p> <p>The jury thereupon returned a verdict for the plaintiff; and the defendant alleged exceptions to the above rulings.</p>

<p>The flats lying between the channels of Charles and Miller’s rivers, outside of the location of the road of the Boston and Maine Railroad Extension Company, and filled up by the said company, pursuant to the authority given by St. 1845, c. 224, § 1, for the location of engine-houses and wood-houses and other purposes for the use of their road, and used, when so filled up, exclusively for such pur poses, are not exempt from taxation.</p>

This was an indictment for a nuisance in placing sand and gravel in a highway in Stow. The defendants pleaded not guilty. The trial was in the court of common pleas before Wells, C. J., who reported the case for the decision of this court on certain questions of law hereinafter stated.

<p>A sheriff cannot be admitted, in a suit between other parties, to change the description of land in his return of an attachment, made by him in a former action, so as to make the description apply to other lands of the debtor.</p>

<p>The rule established, that, in an action upon a covenant of seisin, the plaintiff shall recover only the money paid for the land and interest, applies to actions brought upon conveyances of land in other states, as well as to conveyances of land in this commonwealth.</p>

<p>A town voted, in 1741, that the common lands belonging to the town, lying in a certain part of the town, should “ lie forever for the use of that part of the town for a burying-place and other public uses, as they shall have occasion.” In 1765, the town authorized the inhabitants of that part to fence the burying-ground at their own expense. In 1769, the town voted to that part of the town two acres of the land “to build a meeting-house upon, and for the convenience of said house; ” and this grant was accepted. In the same year a new parish was incorporated, which embraced all that part of the town, and from that time had the uninterrupted possession and use of those common lands; and in 1807, the town passed a vote, recognizing the title of the parish to all those common lands, and authorizing them to retain them. It was held, that the vote of 1741 did not constitute a grant or dedication of the land to the inhabitants of that part of the town; but that the vote of 1807 conveyed to the parish all those common lands, including the burying-ground.</p> <p>A parish, in 1769, erected a meeting-house on land granted them by the town, and . some of the parishioners built horse-sheds on the land. In 1801, other horse-sheds were built by authority from the parish. In 1815, the old sheds were destroyed by the wind; and the parish, being about to build a new meeting-house on a new site, voted not to authorize the proprietors of the old horse-sheds to erect them again where they formerly stood, and appointed a committee to regulate the place and manner of building new horse-sheds ; and the proprietors of the old sheds erected new ones, under the direction of the committee, on other parts of the land: It was held, that the parishioners acquired no easement, adverse to the parish, in the land on which their sheds stood, but merely a right under permission of the parish, which the parish might revoke at their pleasure.</p>

<p>An administrator cannot be holden as the trustee of a creditor of the estate of his intestate.</p>

This was an action of the case for defamation, and for a libel. The declaration contained two counts.

<p>B. died intestate, leaving a widow and four children, A., B., C/s wife, and D.'s wife; and a certain farm and other lands were assigned to his widow for her dower. A. made a deed to C. in 1800 of his interest in the dower lands, and in 1802 anothci deed of his interest in the farm in question. In 1810, after the decease of the widow, D. entered upon the farm, and continued in possession until 1850, taking the rents and profits, and rendering no account thereof, and paying the taxes, and fencing and dividing the land, and leasing parts thereof. In 1846, C. petitioned the legislature to authorize a conveyance of the interest of his wife in one fourth of the farm to the heirs of D.’s wife, who had deceased; and supported this petition by his own affidavit, that an informal partition of the dower lands was made in 1810, between B., C., and D., whereby two fourth parts of the dower lands were assigned to B., one fourth part to C., in right of his wife, and one fourth part, including three fourths of this farm, to D., in right of his wife; that the remaining fourth part of the farm was not included in the partition; and that D. and wife purchased and paid for the interests of the other heirs in this part, C. binding himself to obtain a conveyance to them of his wife’s interest therein, which by reason of her insanity he had not been able to do. A conveyance of such interest was thereupon authorized by the legislature, and was duly made to the heirs of D.’s wife, who afterwards conveyed to D. On a writ of entry, brought by D. against one claiming under a levy and setting off on execution in 1850 of part of the farm as C.’s property, it was held, that C.’s affidavit was admissible to prove that D.’s entry and occupation were adverse to C. It was held, also, that B. must be presumed to have acquired title to A.’s fourth part in the dower lands before the partition in 1810; and that the facts in the case sufficiently proved an ouster by D. of C. continued until C.’s right of entry was barred.</p>

<p>Where, by the terms of a contract, the party may, by payment at a day certain, avoid any Stipulated penalty, such contract is not usurious.</p>

This action was assumpsit for not paying for a yoke of oxen sold by the plaintiff to the defendant. The contract was differently stated in five several counts. To the four first counts the defendant pleaded non assumpsit, on which issue was joined. In the fifth count, the plaintiff alleged a promise to pay seventy dollars in bank notes of any of the New Hampshire banks, except the Coos Bank.

<p>This was an action of covenant broken, in which it appeared, from the plaintiff’s declaration, and the deed declared on, that the defendant, by his deed dated February 28th, 1792, for the consideration of three hundred dollars, conveyed a certain parcel of land described in the declaration to Aaron Putnam in fee, whose assignees the plaintiffs are; and that the defendant covenanted with the said Putnam, his heirs and assigns, that he, the defendant, was seised in fee of the premises; that they were free of all encumbrances ; that he had good right to convey the same ; and that he would warrant them against all persons. — The plaintiffs, .n assigning the breaches, aver that the defendant *was never seised in fee ; that he had at no time any right to convey the premises ; tnat they were encumbered by a right to be seised thereof in fee, which was then vested in the heirs of one Thomas Maudlin, then deceased ; and that the said Newell has not warranted and defended the said premises to the plaintiffs; but that Israel Jenkins and Abigail, his wife, which said Abigail was one of the heirs of the said Thomas Maudlin, deceased, have since prosecuted a plea of land in her right against the plaintiffs, to recover against them one tenth part of the premises; against which suit the plaintiffs have no lawful right to contend, because the right to be seised in fee was in the heirs of the said Thomas Maudlin.</p> <p>The defendant pleaded non est factum, on which issue was joined</p> <p>At the trial of this issue, which was had at the sittings here after the last October term, before the Chief Justice, the execution of the deed being proved, the only question remaining was the rule, by which the damages ought to be assessed ; the plaintiffs insisting upon the present value of the premises, after deducting the value of their improvements, which they could recover against the right owner by the statute of 1807, c. 74, <§> 3. — But the chief justice, intending to save this question, directed the jury to consider the covenants to be broken as soon as they were made, as there had been no ouster or eviction, and that the consideration money, with the interest, were the rule of damages; and the jury assessed the damages accordingly; the plaintiff reserving leave to move for a new trial without costs, or to discontinue, if the verdict should not be set aside.</p>

<p>This was an action on the case against the defendants, as assessors of the first parish in Sherburne for the years 1846 and 1847, for negligence in assessing the taxes voted by the parish for those years.</p> <p>The case was submitted to the court of common pleas, and upon appeal to this court, upon a statement of facts, in substance as follows: The defendants were duly chosen assessors of the parish at the annual meetings thereof in 1846 and 1847, but were never sworn. At the annual meeting of the parish in April, 1847, Richard C. Stone, their minister, addressed to them the following paper signed by him: “ Sherburne, April 6, 1847. To the First Parish in Sherburne. Christian Friends: I hereby make the following communication, relative to my salary: Let the parish raise by vote the same they did in 1845, that is $587.50, and let the tax be assessed upon the same scale as in 1845. Let a yearly subscription be taken of those who worship with us, and added to the assessment; from this sum let the parish receive fifty dollars for incidental expenses, and I will receive the residue. If the sum raised by taxes and subscriptions should exceed my salary and the fifty dollars for expenses, the remainder shall belong to the society. If less than that, the difference shall be my loss. Thus you will perceive by this arrangement, that whoever may withdraw, the taxes for my salary can never be higher than in the year 1845, nor can the society get into debt, except for other purposes. This communication, (if accepted,) shall be in effect until I notify you by your clerk to the contrary, and I withdraw the communication made last year.”</p> <p>The parish voted to accept this communication, and that it be recorded on their clerk’s books, which was done; and also voted to grant five-hundred and fifty dollars for the salary of their minister, and fifty dollars for incidental expenses the en suing year; and chose a committee to solicit subscriptions to assist the parish in defraying its expenses.</p> <p>It was contended by the defendants, but denied by the plaintiffs, that a similar communication was made to the parish by their minister at the annual meeting in 1846, and duly accepted by them. No record thereof appears on the books of the parish. The parish, at their meeting in 1846, voted to grant five hundred and fifty dollars for their minister’s salary, and thirty-seven dollars and fifty cents for incidental expenses the ensuing year; and that the assessors solicit subscriptions from persons not belonging to the parish, to help defray parish expenses.</p> <p>On the 1st of May, 1846, the defendants apportioned on the polls and estates of the members of the parish the sum of $546.87 only, and on the 1st of May, 1847, the sum of $473.70 only, and committed tax rates to the collector, but did not execute and deliver to him any warrant. The sums so assessed were found by multiplying the value of the polls and estates of the members of the parish by the same percentage as that assessed on the dollar in apportioning the taxes of the parish for the year 1845. The amount of taxes actually collected by the collector was only $512.76 in 1846, and only $375.98 in 1847. But the taxes collected, with the subscriptions obtained, exceeded in each year the sums voted for the minister’s salary and for incidental expenses.</p> <p>In both of these years, the taxes were assessed by the assessors by order of the parish, agreeably to and in pursuance of the communication of Stone, made to and accepted by the parish as aforesaid.</p>

This action, which was assumpsit for money had and received, was submitted to the decision of the Court on an agreed statement of facts, from which it appeared that the plaintiff was engaged in October, 1809, as reader to the incorporated Episcopal society in Cambridge, for the term of six months, and from that time to the date of his writ had been so engaged, but always by a contract of six months only, and had accordingly officiated in that character during the said term,…

<p>To this action the defendant pleaded in abatement of the plaintiff’s writ that the same was thus endorsed, viz., “ The Middlesex Turnpike Corporation, by Royal Makepeace; ” whereas the said Tufts says, that although the said Makepeace is agent for the said corporation, yet the said writ ought to have been endorsed by some agent or attorney for said corporation with his Christian and surname, according to the statute in such case made and provided.</p> <p>To this plea there was a general demurrer and joinder.</p>

<p>This was an action of assumpsit to recover the amount of taxes assessed upon the plaintiff, and paid by him to the defendants. The case was submitted to the court of common pleas, from whence it came to this court by appeal, upon an agreed statement of facts, as follows: —</p> <p>The first parish in Sherburne was duly organized as such before the year 1830. On the 27th of March, 1848, the annual meeting of tne parish was held, at which a clerk, assessors and collector were chosen, and the meeting was adjourned to the 1st of May, then next, at which time it was held and dissolved. The clerk was sworn at the meeting, and the assessors on the 8th of May following, by the parish clerk, but not at any meeting of the parish; and the collector, in the same manner, on the 8th of October following.</p> <p>Another meeting was called and held on the 20th of April, 1848, at which it was voted “ to raise the sum of seven hundred and fifty dollars for the Rev. Richard C. Stone’s salary and other necessary parish expenses the ensuing year.” This vote was duly certified to the assessors.</p> <p>The plaintiff, on the 21st of April, 1848, legally withdrew from the parish, complying with the rule laid down in the Rev. Sts. c. 20, § 4.</p> <p>After the 8th of May, 1848, the assessors put up a notice, requiring all persons who were members of the parish on the 20th of April previous, to bring in a valuation of their taxable estates; with which request the plaintiff did not comply.</p> <p>The parish did not at any time pass a vote appropriating the money voted to be raised to any specific expenses, or to any specific object other than that mentioned in the vote. No valuation of the estate of any members of the parish had been called for, nor any tax actually apportioned among the members, before the 8th of May, 1848, by the assessors, or either of them. The assessors took the valuation of the taxable estates of the members of the parish, about the middle of May, 1848, and amongst others, that of the plaintiff, and assessed a tax upon him of twenty-nine dollars and sixty-five cents, about the 1st of July following. The tax list was duly committed to the collector with a warrant for its collection.</p> <p>The collector made a demand on the plaintiff for payment of the tax assessed upon him, and the same not being paid, he seized the goods of the plaintiff, who thereupon paid the tax under protest.</p>

<p>Where the directors of a turnpike corporation, with the assent of the corporation, procured an act of the legislature, altering the course of the turnpike road, one who, before such alteration, had subscribed for a share, and had expressly promised to pay all assessments, was held not to be answerable in an action for the assessments.</p>

This was an action of replevin commenced on the 30th of October, 1849, and returnable at the December term, 1849, of the court of common pleas. The goods sued for were described in the writ as “ nine moulded pine doors, belonging to Henry B. Jaques aforesaid.” The writ was served without any previous appraisal of the goods by a constable of Charles-town, who took a bond in twice the amount of the damages .aid in the writ, which amount was twenty dollars.

In this case, the plaintiff had endorsed the original writ, not having at that time any fixed place of residence within the commonwealth; and since the commencement of the action he had absconded and left the state. The defendants moved that a new endorser should now be fur- ' mshed, who should be sufficient to respond to the defendants their costs, in case they should have judgment for them.

<p>This action was assumpsit, brought by the plaintiffs, as executors of the last will of Elizabeth Disc, upon a judgment recovered by their testatrix against the defendant in the inferior Court of Common Pleas for the county of Shelburne, in the province of Nova Scotia.</p> <p>A trial was had at the last April term in this county, before Sedgwick, J., upon the general issue of non assumpsit, and a verdict taken for the plaintiffs, subject to the opinion of the Court, on the following questions, viz.:—</p> <p>1. Whether the evidence in the case, and which was annexed to a certified copy of the judgment alleged to have been recovered in the province of Nova Scotia, is sufficient to prove the same.</p> <p>2. Whether such a judgment is sufficient evidence to support an action upon the implied promise, which is set forth in the count upon which the verdict is taken.</p> <p>[The evidence referred to in the first question reserved was the affidavit of one John Davis, who swore that he applied to the reputed clerk of the Common Pleas for the county of Shelburne (being the same person who attests the copy of the judgment) for a copy of the record of the judgment; that he assisted the said clerk in comparing the copy with the record, and in affixing the seal of the court to the copy, and saw the same clerk attest the copy by putting his name to it.]</p>

This was a real action, and came before the Court upon an agreed case to the following purport. — Stephen Russell, father of the demandant, being seised of the demanded premises in fee simple, on the 25th day of May, 1800, by his will duly executed, inter alla, devised as follows, viz.: “ I give unto my son-in-law Eliphalet Fox, and my daughter Elizabeth, his wife, three fourths of all my real estate, and three fourths of the thirds given to my wife, after her decease.” —…

<p>This was a petition by the administrator of Susanna Adams against the city of Boston, under the act of 1846, c. 167, “ for supplying the city of Boston with pure water,” empowering the respondents to take land for the purposes oj the act, for the appointment of a committee to estimate the damages suffered by the petitioner’s intestate, during her lifetime, by reason of the respondents’ taking a parcel of her land, for the purposes set forth in the act.</p> <p>The petitioner offered to prove, by parol, that the land described and set forth in the petition was actually entered upon and taken by the respondents, for the purposes of building an aqueduct, authorized by the act, in the lifetime of the petitioner’s intestate.</p> <p>It was proved, that the petitioner’s intestate died in October, 1847, and that the petitioner duly took out letters of administration upon her estate on the 26th of June, 1849.</p> <p>It was also proved, that the respondents made and filed in the registry of deeds in this county, where the land was situated, a description and statement of the same, signed by their mayor, on the 8th of May, 1848. This was the first action of the respondents, which was in any way manifested by a written instrument.</p> <p>The judge of the court of common pleas [Wells, C. J.), before whom the cause was tried, ruled that inasmuch as the entering upon and taking of the land was not filed until after the death of the intestate, this petition for a committee could not be sustained in behalf of the petitioner. To this ruling the petitioner excepted.</p>

<p>Debt on bond. The parties agreed to submit the case to the determination of the Court upon the following facts, viz.: “ The said Ebenezer Bridge, being elected treasurer of the county of Middlesex in May, 1790, executed the bond declared on, which has the following condition underwritten, viz.: “ The condition of this obligation is such, that whereas the above bounden Ebenezer Bridge is chosen treasurer of the said county of Middlesex, and hath taken upon him that trust, —Now, therefore, if the said Ebenezer Bridge shall faithfully discharge the duties of the office of treasurer of said county, and account for all sums of money which he shall receive for the use of the said county, then this obligation shall be void; otherwise to remain in full force.” — The said Bridge was annually elected treasurer of said county from the year 1790 to the year 1806, inclusive, and annually accounted as treasurer with auditors appointed by the Courts of Sessions and Courts of Common Pleas for said county, every year during his continuance in said office, except the last. But no other bond was ever given by him as treasurer of said county. There is due to the county from the said Bridge, as the balance of his accounts for" the year 1806, the sum of eighty dollars. — If, upon these facts, the Court shall be of opinion that the said Bridge is liable in this action for the above-mentioned balance, he is to be defaulted, and judgment rendered against him for that sum with interest; otherwise the plaintiff is to become non suit.</p>

The writ of error in this case was brought to reverse a judgment of the Court of Common Pleas for this county, adjudging the settlement of Nathaniel Nason, a pauper, to be in the town of Walpole., and ordering his removal thither from the town of West Cambridge, to which town the court say he was likely to become chargeable.

This was a petition, under the act of 1846, c. 167, for supplying the city of Boston with pure water, to recover compensation for damages sustained by the petitioner, in consequence of the taking of her land by the respondents for the purposes mentioned in the act. The estate taken consisted of a piece of land, and also of a mill privilege and land adjoining. The trial was before Merrick, J., in the court of common pleas.

<p>This was a certiorari, brought to quash the proceedings before a justice of the peace for this county, had upon the complaint of the clerk of a volunteer corps of militia called * the Medford Independent Light Infantry, against the respondent, for not appearing at a muster of the said company, having been duly warned. The justice convicted him, and sentenced him to pay a fine.</p>

This action was brought in the court of common pleas, on St. 1840, c. 85, which provides that “ when any injury is done to a building or other property, of any person or corporation, by fire communicated by a locomotive engine of any railroad corporation, the said railroad corporation shall be held responsible in damages to the person or corporation so injured.” The declaration alleged that the defendants, on certain days, “ by their agents and engines, did unlawfully and to…

Assumpsit on two promissory notes made by the defendant’s intestate, Thomas Whittemore, to the plaintiff.

<p>This was a proceeding under the Rev. Sts. c. 104, § 4, and St. 1847, c. 267, § 2, commenced on the 31st of March, 1849, to recover possession of a dwelling-house, out building and land adjoining in Malden. The justice of the peace before whom the complaint was brought and tried in the first instance, rendered judgment in favor of the plaintiffs, whereapon the defendant appealed to the court of common pleas; and the case was tried again before Wells, C. J., in that court.</p> <p>At the trial, the plaintiffs gave in evidence a lease, executed by them and by the defendant, whereby they leased him the premises for two years from the 1st of May, 1848, at an annual rent of two hundred and twenty-five dollars, payable quarterly in advance, (namely, on the first day of each of the months of May, August, November and February, during the term), together with the taxes.</p> <p>The plaintiffs also introduced in evidence a notice signed by their attorneys and duly served on the defendant, of which the following is a copy: “ Boston, February 26, 1849. To George Munroe of Malden, in the county of Middlesex : You are hereby required to quit and deliver up forthwith the premises now occupied by you, situate in said Malden, you being in arrears of rent.” The plaintiffs there rested their case.</p> <p>The defendant then offered evidence, that the premises in question were a part of the estate of Thomas Oakes, late of Malden, deceased, from whom the same descended to the plaintiffs, as his heirs at law; and that the plaintiffs had caused partition thereof to be made and portions to be set off to them, respectively, to hold in severalty, and not as tenants in common. The defendant thereupon contended that the plaintiffs could not proceed against him by a joint complaint; and also requested the judge to instruct the jury, that upon the evidence the complaint could not be sustained; but the presiding judge overruled the objection, and instructed the jury, that the plaintiffs could maintain their complaint. The jury rendered a verdict for the plaintiffs, and the defendant excepted.</p>

Entry sur disseisin, wherein the said Whitman demands a certain messuage and land in Cambridge, counting on his own seisin within thirty years, and on a disseisin by the tenants. Joseph Enos, one of the tenants, suffered judgment to go against him by default.

He was returned as a grand juror from the town of Gloucester, and when he was called to be sworn, Story, as amicus curiae, suggested that one--had been accused of the crime of murder, and that it would come under the consideration of the grand jury at this term, whether an indictment should or should not be found against him for that crime; that Mr. Tucker was a neighbor of the accused, living in the same town, had originated the complaint against him, and had most probably…

<p>Where a bill of sale was made by one part owner of a vessel to another, she being then in another port than that where the bill of sale was made, and the vendee claimed possession of her on her arrival a few days after at the port where the bill of sale was made, and where he resided, the sale was held valid and good against a creditor of the vendor, who caused her to be attached im mediately after the bill of sale was executed.</p>

<p>This was an action of debt on a bond for the prison limits, .executed on the 19th of July, 1850, by Tristram Bird, as principal, and Horatio N. Perkins, as surety, conditioned as required by the Rev. Sts. c. 97, § 63, that the said Bird, who had been committed on an execution that issued on a judgment recovered against him by Follansbee, the present plaintiff, would not go without the exterior limits of the jail in Cambridge, until he should be lawfully discharged; and that if he should not be lawfully discharged within ninety days from the day of his commitment, he would surrender himself to the jailer, to be held in close confinement.</p> <p>The question, whether there had been a breach of the condition of this bond, was submitted to the court, upon the following facts agreed: The execution, mentioned in said bond, was obtained in a suit on a note, not negotiable, signed by said Bird, payable to the present plaintiff, and by him assigned to George W. Cochran, who brought an action thereon, in the present plaintiff’s name. In the writ, the said Bird was required “ to answer unto John H, Follansbee,” &c. “ who sues for the benefit of George W. Cochran, of Malden, in said county, trader;” and the same words were inserted in the execution which issued against Bird, and in the bond now in suit; but these words were not inserted in the summons which the officer, who served the writ, left at Bird’s last and usual place of abode. Bird was committed on the execution, July 19th, 1850. The ninety days mentioned in the bond expired, without his having surrendered himself to the jailer, and without any notice or citation to said Cochran, or any discharge by him, or any lawful discharge, unless the court shall decide that he was lawfully discharged upon a citation issued and served as follows: On the day of his commitment to jail, Bird applied for a discharge, under oath, as a poor debtor. A citation was issued and was served on said FoIIansbee, and on no one else. Upon that citation no one appeared to examine of object, and said Bird was admitted to his oath, and was discharged by two magistrates.</p>

The action was assumpsit. The declaration, as finally settled by consent of parties at the trial, contained a count for money laid out and expended, and another money count, and also a special count, in which is set forth, —that the plaintiffs, before the last of March, 1807, had, at great expense, laid out and made that part of a turnpike road, beginning at the line of New Hampshire and coming to the Haverhill post road near the south meeting house in Andover, &c., pursuant…

<p>This was a petition for a writ of certiorari to be issued to the respondents, directing them to bring before this court the record of the proceedings of the selectmen of Lexington, and of the town, in the location and establishment of a private way, on the petition and for the accommodation of David Harrington and James Sanderson.</p> <p>The respondents appeared, and moved the court to dismiss the petition, on the ground, that certiorari would not lie, in the case set out in the petition.</p>

<p>The condition of a bond, given in a prosecution under the bastardy act, (Rev. Sts. c. 49,) that the accused shall appear and abide the order of the court, is broken by a failure to pay such money as the court may order for the maintenance of the child, although it does not appear by the record that the accused was defaulted.</p>

<p>This was a review, sued out and tried in the court of common pleas, of a judgment rendered in that court in favor of Lehan against Good, in an action brought on a promissory-note, purporting to have been signed by Good as maker, and in which action Good was defaulted.</p> <p>No issue having been joined in the original action, Good, the defendant in that action, now pleaded to the original declaration the general issue, which was joined; and under that issue gave notice that he should deny, and should require Lehan to prove, that he (Good) made, or signed, or in any way executed or became a party to any such note as was mentioned in the declaration.</p> <p>Upon the trial of this issue before the jury, Lehan having produced the note declared on, and a copy of the original judgment rendered against Good on default, contended that he had made out a primd facie case, and that in the absence of all evidence on the part of the defendant, Good, he was entitled to a verdict for the amount of the original judgment. But the presiding judge (Merrick, J.) ruled otherwise, and directed a verdict for the defendant. And to this ruling, Lehan, the plaintiff in the original action, (defendant in review,) alleged exceptions.</p>

<p>An apprentice is not assignable.</p>

This was a writ of review, sued out from the court of common pleas on the 28th of November, 1848, to reverse a judgment recovered in that court at the September term, 1848, by Lehan, in an action brought by him against Good, in which action Good was defaulted. At the December term, 1849, of the court of common pleas, Lehan pleaded in abatement of the writ of review, that the same had been materially altered and changed since the issuing of the same.

<p>A defendant, against whom judgment had been rendered, obtained 'a supersedeas of execution, on giving a bond conditioned, among other things, to “ sue cut and prosecute to effect a writ of review of the action on which said judgment was rendered, commencing the same to be entered at the next term ” of the court in which the judgment was rendered; and afterwards obtained an order for a review in general terms, without specifying the term at which it should be entered; and not being able,before the expiration of the time of service for the term mentioned in the bond, to procure a service of the writ of review on the original plaintiff at the place where he was informed by his attorney of record that he resided, though he might have served it on said attorney, altered the writ so as to make it returnable at the next ensuing term of the court, and duly served and entered it at that term. It was held, that this condition in the bond was valid; that it was not controlled by the generality of the subsequent order granting the review; that it was broken by the failure to enter the review at the term specified; and that the facts of the case constituted no justification for such failure, and no defence to an action for such breach.</p> <p>Judgment and satisfaction, in an action on a bond given to dissolve an attachment, constitute no defence to an action on a bond given to obtain a review of the action in which the attachment was made, for a breach of a condition to enter such review at the next term of the court.</p>

<p>The plaintiffs declare in an action of the case, first upon a policy of insurance upon the brig Liberty, her cargo and outfits, of which a total loss by capture in the voyage insured is averred. The second count is for money laid out and expended.</p> <p>A trial was had at the sittings here after the last November term,' before Sewall, J., and a verdict taken for the plaintiffs, in which the damages were assessed for the value of the vessel as insured, for u quantity of provisions and salt on board belonging to the owners, and for expenses incurred in claiming the vessel, when libelled in consequence of the capture. The verdict was taken subject to the opinion of the Court upon the facts to be reported by the judge who sat at the trial, and was to be amended in the amount of damages assessed, or to be set aside, and a verdict entered for the defendants, or a new trial granted, as the opinion of the Court should be.</p> <p>The policy, dated October 30th, 1804, together with sundry depositions and other documents, including a certificate from the registry of the Court of Vice Admiralty at Columba, in the island of Ceylon, of the condemnation of the vessel, and the master’s protest, were read in evidence, and were to be referred to as parts of the case. — The material facts, which were agreed to be proved by this evidence, the judge reports as follows: —</p> <p>By the policy in question, 12,000 dollars were insured by the defendants upon the brig Liberty, Jonathan Lambert, Jun., master, and her appurtenances, valued at 6000 dollars, and her cargo and outfits at 6000 dollars, “ at and from Salem to any port or ports, place or places, backwards and forwards, round the globe one or more times, during her stay and trade at all such places, until her return to her port of discharge in the United States; ” — against all the * usual perils, including capture and detention of princes, &c., excepting only, by a note at the bottom of the policy, “ any loss that might take place for illicit or contraband trade with or by any power whatever; ” — for a premium at and after the rate of three quarters of one per cent, per month, with liberty to withdraw the policy at any time, warranting nine per cent, due on signing thereof.</p> <p>In the month of November, 1804, the vessel, with suitable outfits for a sealing and oil voyage, sailed from Salem, destined to the South Sea, and in the latter part of May, or beginning of June, arrived off the Prince Edward Islands. After a few days employed there in hunting for seals, in which they had very little success, the failure being caused, as they believed, by the lateness of the season, they sailed for the Orozette Islands, but not finding them, after a month employed in looking for them, the vessel returned to the Prince Edward Islands.</p> <p>There several attempts were made to get water, of which they were in want. In one of these attempts the captain and several men having been landed, a gale of wind came on, and the vessel was driven off, and did not regain the island until after fourteen days; when the captain and men were found and taken on board, with a small quantity of water. And in another attempt, an officer and six men having been landed, the vessel was again blown off, and did not return to the island until after sixteen days; and then several days were employed in sailing round the island, and in endeavors to find the part of the crew left on shore; but they were not to be found. Captain Lambert finally concluded to abandon his sealing voyage, at least for the residue of the winter, in the southern latitudes, with an intention, as he then thought, of resuming it in the spring; and he accordingly sailed for the Isle of France, where he arrived August 18th, 1805.</p> <p>At the Isle of France Captain Lambert endeavored to get the brig into some employment; and on the 28th of September chartered her to Joseph M. Slanesbury, of New York * and Israel Israel, Jun., of Philadelphia, to carry a cargo of brandy, wine, and oil to Bombay, and to return to the Isle of France with such cargo as they should put on board. Upon making this engagement Captain Lambert, as appears by one of his letters referred to, relinquished all intentions of resuming a sealing voyage; retaining, however, some intention of attempting an oil voyage, if he could obtain the necessary outfits upon his return from Bombay The implements, utensils, equipments, and provisions, remaining of the outfits for the sealing voyage, having been landed at the Isle of France, part of them were sold there; and the residue were left in the care of John H. Cabot, excepting only about five hogsheads of salt, which, being stowed in the run of the vessel, it was thought not convenient to land, and provisions for four months, which were taken or retained on board as necessaries for the voyage to Bo nbay</p> <p>The merchandise taken at the Isle of France, pursuant to the charter, was stated to Captain Lambert, and believed by him, to be articles of a cargo recently brought there from the United States in the ship Projector, in which said Slanesbury had arrived as supercargo ; Captain Lambert having had information of such an arrival, and having noticed that the boxes of claret, among the articles offered for his lading, retained the mark “ Projector.” — On the 3d of October Captain Lambert sailed in the brig Liberty from the Isle of France, bound for Bombay, with the said Israel as supercargo, and with the merchandise above mentioned belonging to the freighters, and with the said salt and provisions, the property of the insured; and the next day they were captured by the British frigate Duncan, Clement Sneyd commander, and ordered to Columbo, in the island of Ceylon.</p> <p>The register, sea-letter, and Mediterranean passport of the said brig had been left at the Isle of France when Captain Lambert sailed for Bombay, by an accident, as it appears from his testimony, and that of J. H. Cabot, with whom the papers were deposited ; and when boarded' from the British frigate, such papers as they had in their brig were * produced and shown, and the accident by which the other papers had been left at the Isle of France was stated, and on this point the captain of the frigate appeared to be satisfied, and said that the vessel and cargo were clear enough, and might proceed. Then it was suggested to him by his lieutenant, that Columbo was in the way to Bombay; and it might be best to send the brig in for examination ; and after the assent of the crew of the frigate had been obtained, the detention was determined on. But for what particular cause, and whether for any other cause than the want of papers, did not appear otherwise than as stated.</p> <p>At Columbo the brig and cargo were libelled, condemned, and sold for the benefit of the captors, before Captain Lambert left the place.</p> <p>The cause of the condemnation alleged in the admiralty proceedings is, “ He, the said Jonathan Lambert, being a citizen of the United States of America, and master of the said brig, having during the voyage in which the said brig was captured as aforesaid, carried on, and being at the time of the capture thereof carrying on, an illicit trade between the Isle of France, a colony of the French government, and Bombay, a colony of Great Britain; and on account of the cargo belonging to persons inhabiting within the territories of the French Government; and that the said brigantine and cargo were therefore or otherwise subject, &c., as good and lawful prize.”</p> <p>On the 30th of January, 1806, in consequence of intelligence of the capture by the British, received in a letter from Mr. Otis, who had been the mate of the said brig, and had quitted her at the Isle of France, the insured abandoned their interest in the brig and cargo and outfits to the defendants, and accompanied the abandonment with a copy of the said letter. The abandonment having been refused, the said protest by Captain Lambert, received by the insured on the-day of-, was then offered to the defendants in confirmation of the said intelligence.</p> <p>* A usage for vessels employed in the south seas in sealing and oiling voyages, to go to the Isle of France, and to seek employment there, during the winter season of the southern latitudes, with the intention of resuming their original destination on the return of temperate weather, was also proved. And it was agreed by the parties, that the Court of Appeals in England had reversed the said sentence of the Vice Admiralty Court, and had decreed a restitution of the said vessel and cargo.</p> <p>Upon this evidence the jury were directed, that the delays and other circumstances, proved in the conduct of Captain Lambert, while in the south seas, and in proceeding to the Isle of France, did not operate to discharge the underwriters, or amount in any respect to a deviation from the voyage insured; and that the voyage and employment of the said brig, undertaken at the Isle of France, if not unlawful according to the alleged causes of condemnation, were within the risk insured; and that the insured were entitled to recover for the loss proved, notwithstanding the accident of leaving the vessel’s papers at the Isle of France; and even if that circum stance had produced the detention of the vessel in the first instance; and, reserving the question whether the voyage to Bombay was unlawful, and a justifiable cause of condemnation, the verdict was taken for the plaintiffs, in which the damages were assessed for the vessel according to the valuation in the policy, and for the articles the property of the plaintiffs on board according to the amount and value proved ; the counsel for the plaintiffs assenting to the opinion of the judge who sat in the trial, that after the landing of a part of the outfits for the sealing voyage at the Isle of France, the policy became an open policy as to any remaining part of the cargo and outfits on board the vessel at the time of the capture.</p> <p>The cause was argued at this term by Prescott for the plaintiffs, and Dexter for the defendants.</p>

<p>This was an action of assumpsit to recover for the board of three of the defendant’s workmen.</p> <p>The defence relied on was, that subsequent to the time when the board was furnished, there was a submission of all demands between the plaintiff and defendant to arbitrators, and an award in favor of the defendant, upon which judgment was rendered for a balance of $17.37, and costs.</p> <p>At the trial, which was in the court of common pleas, before Hoar, J., it was in evidence, that at the time of the submission, the plaintiff had commenced and was prosecuting actions for the amount claimed in this suit against the workmen themselves ; that the hearing under the submission was in June or July, 1848; that at that hearing the plaintiff made no claim against this defendant for this amount, and that it was not mentioned to or considered by the arbitrators; that after the judgment upon the award, at the next December term, there was a trial of the actions against the workmen; that the defendant Savory was a witness in those actions, and testified “ that he engaged the plaintiff to board his help; that it was his own contract and his own debt, that he was liable, and if he had not paid it, he meant to; ” and on being asked what he meant by saying “ if he had not paid it,” replied that he meant, “ if it was not included in the reference, which he could not tell, as he had not the papers; ” that upon this evidence the defendants in those actions prevailed; and that the defence in those actions had not been stated or disclosed till the day of trial.</p> <p>The defendant contended that the submission and award was a conclusive defence. But the judge ruled that upon this evidence the jury would be warranted in finding for the plaintiff. Whereupon a verdict was taken for the plaintiff; and the defendant alleged exceptions.</p>

This was an action of replevin for six cows, commenced in the court of common pleas.

At the December term, 1848, of the court of common pleas, this action, which was assumpsit on a promissory note, was tried, and a verdict returned for the plaintiff, and the defendant moved for a new trial, as appears by a written motion filed in the case, because the verdict was against the evidence, and also on account of newly discovered evidence.

<p>A. gave a bond to convey land to B. by a quitclaim deed at a day named, on payment of a certain sum of money; on the day named B. offered to pay the money, which he had within his reach and control, though not actually in hand, but made no formal tender of the money; but A. refused to convey the land simultaneously with the payment of the money, insisting that the money should be paid first. It was held, that B. was entitled in equity to a decree for a quitclaim deed of the land, free from incumbrances created by A. since making the bond.</p>

This was an action of assumpsit to recover certain tolls of the defendant for passing over the plaintiffs’ bridge; and was submitted to the court upon the following facts: — The plaintiffs, by their charter (St. 1824, c. 110), were authorized, among other things, to erect a bridge over the Merrimack River, to have and use a common seal, and to sue and be sued in their corporate name.

This was an action of assumpsit to recover certain tolls of the defendant for passing over the plaintiffs’ bridge, and was submitted to the court upon the following facts: — On the 10th of March, 1832, the legislature passed an act (St. 1832, c. 117,) providing that “ the Central Bridge Corporation shall have power and authority to reduce the tolls, which are granted by the act of incorporation, and to compound the same in all cases in which the said corporation may deem it…

<p>This was an action of the case, in which the plaintiff declared, 1. For not transferring to him fifteen shares in the stock of said company, purchased by him, and which having become his property, the defendants had undertaken to have transferred. 2. For not paying dividends on fifteen shares when purchased. 3. For not paying 3000 dollars, money received by the company for the use of the plaintiff.</p> <p>The defendants pleaded that they never promised, &c., on which issue being joined by" the plaintiff, a trial of the issue was had before Sewall, J., at the April term of this court, 1810.</p> <p>For the plaintiff, the evidence at the trial was, that on the 7th of April, 1809, P. Bagley, a deputy sheriff, having an original writ in a suit of Samuel Williams against John Wood, Joseph Cutler, and George A. Rogers, returnable to the Court of Common Pleas for this county, June term, 1809, inquired at the office of the said company for the shares of the original stock of the company holden by said Rogers; and notwithstanding information stated to him by J. Balch, their secretary, that Rogers held no shares there, excepting the interest he might have in fifteen shares, which had been transferred to the company as collateral security for his note .due to the company, the said Bagley gave notice at the office that he attached the said number of shares as the property of Rogers, and returned upon the said writ that he had attached the same. — Judgment for the sum of 4900 dollars and costs being afterwards recovered in the said suit, an execution to satisfy the same was returned by the same deputy sheriff. By the said return it appears that on the 21st of July 1809, the said fifteen shares were levied and taken, and on the 22d of August, next following, were sold at vendue to the plaintiff at five dollars per share; * and on [ the 4th of September then next, the said Bagley left a copy of the said execution and return at the office of the said company ; and the plaintiff, being then there, tendered to their secretary his reasonable fees for recording a transfer of the said shares, and demanded to have the same entered, and to have certificates of the shares in his own name, all which was refused.</p> <p>The act for incorporating the said company (iStat. 1806, c. 89.) was read, as was also a copy of the supposed transfer to the said company, received by the said Bagley when he made the said attachment, and of a certificate which was endorsed thereon by the said secretary--(The said transfer purports a conveyance of fifteen shares of the stock from Rogers to the company, as collateral security for the payment of his note of even date to T. Cross, and by him endorsed, payable in sixty-five days; and also for the payment of such notes as he may give by way of renewal of the said note, or any part thereof, and of any other sums he may owe the company. — In default of payment of such notes or other debts, he authorizes a sale of the shares at auction after public advertisement, a transfer of them to the purchaser, and the appropriation of the proceeds to the payment of the notes or debts, and the surplus to himself; and finally engages to surrender the certificates of his shares ; reserving a right to act and vote as a stockholder until such sale shall have been made. Dated February 1st, 1809. The secretary certifies that Rogers was, before the said transfer, holder of fifteen shares; that there was no dividend due on them; that the note mentioned in the transfer remained unpaid; that the transfer was immediately noted, as was customary, in the books of the company; and that Rogers had never been required to give up the certificate of the shares, on the presumption that the note would be duly paid and the certificate restored.)</p> <p>For the defendants, the evidence was, that the usage of the corn-pony, since its incorporation, had been, (they having no by-laws upon the subject of transfer, or any express * bylaws at all,) in all absolute transfers of stock, to have the same entered and signed by the party making the transfer, in a book kept for that purpose, of which a statement is then made in the day-book to the debt of that party, and to the credit of the party to whom the transfer is made; which is afterwards accordingly posted in the leger. But in occasional transfers of stock, of which there had been no example other than transfers to the company foi collateral security, the usage had been for the stockholder to make his transfer upon a sheet of paper, to be kept on file, and in a form similar to that of which a copy was given to Bagley; after which an entry is made in the day-book and leger, as in the case of an absolute transfer. — On the 1st of February, 1809, the company held the note described above in the secretary’s certificate, which was deposited with them by Rogers, and was the balance of a former note given in discharge of his subscription of twenty-five shares to the stock of the company, and which had been before several times renewed on the deduction of sundry payments made by him ; and on the said 1st of February, 1809, Rogers transferred fifteen shares, as above, being all he then owned. The day-book of the company being produced at the trial, an entry appears therein made on the same day as follows, viz.: “ Sundry accounts dr. to the capital for shares transferred to the co. as collateral security for debts due from the persons hereafter named, as per transfer.” After which are inserted many names, with the number and amount of their shares transferred; and among the rest is the name of “ George A. Rogers fifteen shares, 1500 dollars.”—Afterwards, on the 26th of April, 1809, his note not having been paid, said shares were sold at vendue, pursuant to the authority and trust declared in the said transfer. Ten of them were purchased by M. Hall at 99 dollars per share, and five of them by J. Greenleaf at 100 dollars per share.</p> <p>The sale had been ordered on the 10th of April, and had been advertised more than fourteen days ; and on * the 27th the president of the company transferred the said shares to the respective purchasers. Afterwards, at the sale by Bagley under the execution, the president of the company read to the persons assembled at the auction the minutes of the said transfer by Rogers, and of the sale pursuant thereto, and cautioned all persons against purchasing; and the plaintiff’s purchase was made with a full knowledge of the foregoing transactions. It was admitted on the part of the defendants, that Rogers retained his certificate of stock until May 8th, 1809.</p> <p>Upon this evidence a verdict was taken for the plaintiff for 1560 dollars, subject to the opinion of the Court; and if their opinion should be that the action was not maintained upon the facts above stated, the veidict was to be set aside, and the plaintiff to become nonsuit.</p> <p>The cause stood continued to this term, when it was argued by Story and Mosely for the plaintiff, and by Putnam and Banister for the defendants.</p>

This was an action of assumpsit, to recover a tax for the year 1849, paid to the defendants by the plaintiffs under protest, on personal property held by them as executors and trustees under the will of the late Abel Phelps. The trial was before Mellen, J., in the court of common pleas.

<p>S. & Co. agreed in writing with C., that if he would build a shop on land held by him under a five years’ lease from the owner thereof, and would assign to them his interest in certain under-leases of parts of the same land made by him for the same term, which leases had been assigned by the lessees to S. & Co., and if S. & Co. should be permitted to occupy the land, without paying rent, for three years, they would then reassign the under-leases to C. A few months after the making of this agreement, and after S. & Co. had entered upon the land, a difference respecting the land and the buildings thereon arose between the parties, whe thereupon agreed that such difference should be referred to arbitrators, and that all papers pertaining to the land should he committed to them, and that they should judge in the case, and report what in their judgment was just and right to be done between the parties, and fix the term of time for which S. & Co. should occupy the land as full compensation for what was their rightful due. The arbitrators awarded that S. & Co. should occupy the premises free of rent for two years and six months from the time of their entry upon the premises. It was held, that the agreement in writing was merged in the submission and award; but that S. & Co., if they occupied the premises after the expiration of the time named in the award, were liable to C. in assumpsit for use and occupation.</p>

Case upon a policy of insurance for 10,000 dollars on the ship Ariadne and her freight from Falmouth to her port of discharge in Europe — 7000 dollars on the ship, the residue on the freight; the ship valued at 17,000 dollars, the freight at 9000 dollars; policy dated March 5th, 1810; at a premium of twenty per cent. — The first count was for a total loss by the perils of the seas ; the second for-dollars, money had and received by the defendant for the plaintiff’s use.

<p>In an action of trespass, a count for breaking and entering the plaintiff’s dwelling-house, and taking and carrying away goods therefrom, is not supported by proving a trespass in taking and carrying away goods only.</p>

<p>When a witness, duly summoned, appears before the grand jury, but refuses to be sworn, and behaves in a disrespectful manner towards the jury, they may lawfully require the officer in attendance upon them to take the witness before the court in order to obtain its aid and direction in the matter.</p>

<p>In this action, which was assumpsit for money had and received to the use of the plaintiff, the parties agreed to the following statement of facts, on which judgment was to be rendered, viz.: — That on the 25th of November, 1793, the defendant was owner of the schooner Charming Sally, whereof Richard Crowninshield was master, then lying in the harbor of Salem, and bound on a voyage to the West Indies ; and that the defendant then and there borrowed and received of the plaintiff one hundred and fifty pounds on bottomry, upon the bottom of the said schooner, and executed and delivered to the plaintiff the defendant’s bond in the penal sum of three hundred pounds, with a condition thereto in these words, viz.: —</p> <p>“ The condition of this obligation is such, that whereas the above-bounden George Crowninshield hath borrowed and received of the above-named John Appleton one hundred and fifty pounds on bottomry, being on the bottom of the schooner Charming Sally, whereof Richard Crowninshield is at present master, and now bound on a voyage from hence to one or more islands in the West Indies, and from thence to any port or ports whatsoever, and from thence back to Salem, or port of discharge in this commonwealth; which sum of money is at the risk of said John, but for the proper account and use of the * said George, — if, therefore, the said schooner shall perform the said intended voyage or voyages, and the said George, his heirs, executors, or administrators, shall and do well and truly pay or cause to be paid unto-the said John, his lawful attorney, his heirs, executors, administrators, or assigns, the full sum of one hundred and fifty pounds, lawful money of the commonwealth of Massachusetts, together with three per cent, per month for interest and adventure from the date hereof until the bond is discharged, and within twenty days next after said schooner shall arrive at Salem, or port of discharge in this commonwealth; or in case said schooner should be lost through the perils of the seas, or by fire, or the enemies of the United States, while she is performing the said intended voyage or voyages, then this obligation shall be void and of no effect; but otherwise shall be and remain of full force, strength, and virtue.”</p> <p>And afterwards, on the 1st day of December, in the same year, the said schooner sailed from Salem aforesaid, with a cargo of merchandise on board, belonging to the defendant, upon the voyage described in said condition to said bond, and the said schooner arrived in safety, and without deviation, at her destined port, viz., in the island of Guadaloupe, and there the said cargo was delivered, received, and disposed of, and with the proceeds thereof a return cargo was purchased and laden on board of said schooner, and therewith said schooner afterwards sailed for said Salem, and in prosecution of said voyage, being the voyage described in said condition, the said schooner, with her said cargo, was captured by certain subjects of the king of Great Britain, acting under his authority, and carried to the island of St. Christopher’s, and in the Vice-Admiralty Court there was condemned as lawful prize, against the will and without the default of the defendant; so that the said schoon er never returned to Salem aforesaid, nor to her port of discharge in this commonwealth, nor hath said schooner at any time since said condemnation specifically come to * the hands or possession of the defendant, or to his use. An appeal was interposed by the defendant from the said sentence of said Vice-Admiralty Court to the lords commissioners of appeals in prize causes in England, who reversed said sentence of condemnation of said vessel and cargo, and decreed and ordered a restitution of said schooner to the defendant, and that afterwards the commissioners, appointed pursuant to the seventh article of the treaty of amity, commerce, and navigation between his Britannic majesty and the United States of America, did award to the defendant the sum of two thousand dollars, as compensation for said schooner, and five hundred and sixty dollars for the freight thereof; which sums, it is agreed, were full compensation for said schooner and the freight thereof for said voyage, and also lawful interest for the same sums; and afterwards the defendant received the aforesaid sums of two .housand dollars and five hundred and sixty dollars of the British government, and interest thereon, from the said condemnation of the said schooner and cargo to the payment of the same respectively by the British government: afterwards the plaintiff demanded of the defendant the money loaned to him as aforesaid, with the interest thereof, and the defendant refused to pay the same. It is further agreed that an action was commenced on the said bond by the plaintiff against the defendant, upon which action judgment was rendered in the defendant’s favor, and a copy of the record in that action is to be considered as in the case.†</p> <p>Upon these facts the cause was argued by Dexter and Prescott for the plaintiff, and Story for the defendant, partly at the last November term in this county, and partly at the last March term in Suffolk.</p>

<p>This was an action of trespass quare clausum fregit, originally brought before a justice of the peace; and was submitted to the court of common pleas, and, upon appeal, to this court, upon the following statement of facts: —</p> <p>“ It is admitted that the plaintiffs are the proprietors of the tract of upland described in their writ, with the flats adjoining, at Powder Point, so called, in Duxbury, bordering upon the bay. The defendants, inhabitants of Duxbury, went in their boat upon said flats, and there, at low water, dug five bushels of clams, and put them into their boat, and carried them away. The place where the defendants dug these clams was between high and low water mark, and within one hundred rods of the shore of the plaintiffs’ upland. If the court shall be of opinion that the defendants had a right so to dig and carry away said clams, the plaintiffs are to become nonsuit; otherwise, the case is to be sent to a jury.”</p>

<p>A writ, in a civil action pending before a justice of the peace, which directs the officer “to attach the goods or estate of [blank] to the value of twenty dollars, and for want thereof to take the body of the said W. D.,” may be amended, by leave of the justice, by inserting th'e defendant’s name in the blank space.</p>

<p>Where a mortgagee, before the Rev. Sts., with the consent of the mortgagor, matte open and peaceable entry upon the mortgaged premises, in the presence of the mortgagor and of two witnesses, and took actual possession thereof, for a breach of condition, and for the purpose of foreclosure, and the mortgagor signed a certificate of the same to the mortgagee; it was held, that the mortgage became absolute at the end of three years from such entry, although the mortgagor after wards remained in the occupation of the premises, in the same manner as before, for a longer period than the three years.</p>

This was a petition for a mandamus. The petitioner set forth that in 1846 the county commissioners of the county of Bristol laid out a section of the Taunton and Providence turnpike as a common highway, which was duly accepted and recorded by the commissioners at their meeting in September 1846.

<p>In this case, which was argued at the last October term, by T. D. Eliot, for the defendants, and by T. G. Coffin, for the plaintiff, the material facts appear in the opinion of the court.</p>

<p>This was an action on a probate bond given by the defendants on the 4th of February, 1817, as administrators of the estate of Benjamin Bennett. The action was for the benefit of Henry Bennett, a son and heir at law of the deceased, bom November 16th, 1814.</p> <p>It was agreed by the parties: “ That the administrators returned into the probate court an inventory of the estate of the deceased on the 3d day of June, 1817, and not before; that the administrators had rendered but one account of their administration, namely, on the 5th day of April, 1822; that Edward Bennett, one of the administrators, had received money, from time to time, since the rendering of the account and inventory, up to the time of bringing this action, being the proceeds of interest and dividends on certain stocks named in said inventory, but of which no account had been rendered, and also rents of real estate; that said Bennett had received the profits and use of other property named in the inventory, since the rendering of his account, not afterwards accounted for, but he had lived in the family of his deceased brother, the intestate, most of the time since his death, and had expended sums of money in the support of the widow and children including the real plaintiff, that said Bennett had received the benefit of the labor of the widow and children, including the labor of the real plaintiff, but whether he had expended all the sums so received was not agreed; that no distribution had ever been ordered by the probate court, and that the administrators had never paid over to said Henry Bennett, his distributive share of the estate of the deceased, unless in the manner indicated in the facts above stated; that the administrators were duly cited to appear at the probate court for the county of Bristol, holden on the 6th of August, 1847, to render an account of their administration, and that they did not so appear, but made default; that the judge of probate authorized the present suit; that the widow of the deceased was appointed guardian of said Henry Bennett, during his minority ; and that a demand was made on said Edward Bennett by the plaintiff, three or four months before the citation to the probate court, for the amount supposed to be due the plaintiff from the estate of his father.</p> <p>“ If, upon the above facts, the court shall be of opinion, that the condition of said bond has been broken and the same is forfeited, judgment is to be entered accordingly, and such further proceedings shall be had as the court, under the provisions of the statutes, shall order; but if the court shall be of opinion that the action cannot be maintained, the plaintiff is to become nonsuit and defendants to take costs.”</p>

This was an action of assumpsit for work and labor, in which the plaintiff declared generally, and also on a special contract, signed by both parties, which was as follows: “ Boston, 6th February, 1849. Articles of agreement made between Thomas G. Atkins and Earl C. White.

Mr. Solicitor General Davis suggested to the Court that the honorable Mr. Dane, a counsellor practising in this Court, having been examined as a- witness by the grand jury, it appeared on his examination that he held in his possession a certain paper, purporting to be a promissory note, which, on behalf of the commonwealth, Mr. Solicitor was desirous to lay before the grand jury, believing that public justice might be promoted thereby ; but which Mr. D. had declined…

This was an appeal from a decree of the Probate Court of this county, approving and allowing the last will of Mary Norris, deceased. — Among the reasons of appeal, one was, that the deceased was not of sane mind at the time of executing the will, and on this an issue was formed to the country. • On trial it appeared that the scrivener was called in at 11 o’clock in the morning of the 21st of March last, and received from the testatrix directions as to preparing her will.

<p>In computing the thirty days, within which a town,liable for the support of a pauper, is required, by the Rev. Sts. c. 46, § 15, to remove him from the town in which he has received support, in order to exempt the former from liability therefor at a greater rate than one dollar a week, the day, on which notice is received that the support has been furnished, is to be excluded.</p>

<p>Debt on bond. The condition being set forth on oyer had, it appeared that the penalty was to be saved, if Samuel Lowder, one of the obligors, and a prisoner in the jail at Dedham, in the county of Norfolk, on an execution in favor of the present plaintiff, should thenceforth continue a true prisoner in the custody of the jailer, and within the limits of the said jail, without committing any manner of escape.</p> <p>The defendants, in their first plea in bar, set forth specially a performance of the condition of the obligation.</p> <p>*The plaintiff, in his replication, alleges that on the 2d day of January, 1809, without his license, and against his will, the said Lowder passed out of the custody of the jailer, and out of the limits of the prison, and committed an escape.</p> <p>This is traversed by the plaintiff in his rejoinder, on which an issue to the country is tendered by the defendants, and joined by the plaintiff.</p> <p>In their second plea the defendants plead substantially, that the bond was not taken in double the amount of the debt and costs in the execution; And in their third plea, that the sureties in the bond did not reside or dwell within the county of Norfolk.</p> <p>To the two last pleas the plaintiff demurred generally, and the defendants joined in demurrer.</p> <p>On trial of the issue to the country before Parker, J., November term, 1810, it appeared, by a copy of the record of the Court of Sessions for the county of Norfolk, that in the year 1803, the east chambers of the house of Samuel Daggett, the jailer, with the joint use of the garret over those chambers, the kitchen, &c., with land west of the same to the highway, were assigned by the Sessions, as within the limits ; and a lease had been executed by Daggett to the county of part of his house, comformably to the above-mentioned order.</p> <p>It was proved, that Lowder had frequently been in the south-west chamber of Daggett’s house, in the month of January, as late as 9 o’clock in the evening, the east chambers being uncomfortable and having no fireplaces; but that he always slept in one of the east chambers. — There was a passage from these chambers into the kitchen, and from that to the necessary house and well, and to the highway, without going into the west part of the house.</p> <p>It was testified by Daggett, and by several of the magistrates of the county of Norfolk, that the whole of Daggett’s house was considered as within the limits of the prison; and that the order of the Court of Sessions and * the lease were limited to the east chambers for the accommodation of Daggett, that he might oblige such of the prisoners as should be refractory or uncleanly, to keep within those limits.</p> <p>The jury were directed, that this testimony, though admitted, was not to be considered as proper evidence against the order of the Sessions, and the lease of the jailer, which were conclusive as to the limits of the prison; and that Lowder, having continued out of the limits assigned by the Sessions, had committed an escape, notwithstanding the design of the jailer, and the members of the Court of Sessions, to indulge prisoners with the use of other rooms than those which had been duly assigned.</p> <p>The issue was accordingly found for the plaintiff; and the verdict was to be set aside, and a new trial granted, if the said direc tian was wrong.</p> <p>The cause stood over upon the verdict and demurrers to the last March term, for argument on the demurrers, and upon the motion of the defendants for a new trial of the issue in fact, for the misdirection of the judge to the jury ; and it was then argued by Prescott for the plaintiff, and by Davis (solicitor general) and Jackson for the defendants.</p>

In this case, which was a complaint under the Rev. Sts. § 116, to recover compensation for damages occasioned by flowing the complainant’s land by the respondents’ dam, the respondents pleaded in abatement, that if any such dam was kept or maintained, or such damage done, as alleged in the complaint, it was by the respondents jointly with certain other persons named; and that such persons should have been joined in the complaint as respondents.

This was an action of assumpsit against John Tilden, Martin Hayward, and Howard Tilden, upon several promissory notes, signed previous to 1843 by the firm of John Tilden & company, of which the defendants were members. John Tilden pleaded a certificate of discharge obtained under proceedings in insolvency on a petition instituted by him in January, 1844.

<p>This was an action of assumpsit, commenced in the court of common pleas on the 11th of March, 1850, on a promissory note for two thousand dollars, dated July 1st, 1848, and payable to the plaintiff on demand with interest.</p> <p>At the April terra of that court, 1851, the defendant pleaded a certificate of discharge under the insolvent laws, granted to him on the 23d of November, 1850, under proceedings commenced about the end of April, 1850.</p> <p>The plaintiff, by way of replication to the defendant’s plea, and in avoidance of the discharge, filed specifications, charging that the defendant did not deliver all his property to the messenger appointed by the commissioners of insolvency, but withheld a large amount thereof, (the items of which were specified), for his own use; also that the defendant, being insolvent and in contemplation of insolvency within six months previous to the commencement of said insolvency proceedings, paid large sums of money and conveyed a large amount of property, (the particulars of which were mentioned,) to divers persons named, being existing creditors of the defendant, intending thereby to prefer said creditors.</p> <p>The defendant objects that inasmuch as the plaintiff presented and proved his claim before the commissioner of insolvency, while this action was pending in court, (which fact is admitted,) the plaintiff cannot further prosecute this action. The defendant further objects, that the matter of the allegations now made by the plaintiff, having been inquired into before the commissioner by the creditors in person or by attorney, and having been passed upon by the commissioner, and no appeal having been taken by the assignee or by any other person from the decision of the commissioner granting the discharge, the plaintiff cannot in this action reexamine the case before this court.</p> <p>The parties submitted the case to the court upon the foregoing statement, with the agreement that such judgment might be rendered thereon as the court should deem proper.</p>

<p>This was assumpsit on a promissory note for $200, made by the defendant to the plaintiff, and dated June 24th, 1841. The defendant specified in defence a discharge by a release, dated the 24th of November, 1842.</p> <p>At the trial in the court of common pleas, before Mellen, J., the plaintiff, to maintain the case on his part, read the note declared on, and a paper signed by the defendant, of which the following is a copy: “ January 25, 1843; In consideration of Cyrus Lothrop’s having this day signed an instrument with Peter H. Pierce, Arad Thompson, and others, agreeing to discharge me from my liabilities and to take the dividend of my assets, (said instrument bears date November 24th, 1842), I do agree and promise to pay the said Cyrus Lothrop the full amount of the note which I now owe said Lothrop and all costs thereon, (said note is dated June 24th, 1841, for two hundred dollars, with interest on demand,) said Lothrop is to receive and apply his share in part payment of said note and costs thereon, and I promise to pay and make up to said Lothrop the deficiency, if any there be after deducting said dividend.” The plaintiff here rested his case.</p> <p>The defendant gave in evidence an assignment, dated the 24th of November, 1842, made by him to A'ad Thompson and others for the benefit of his creditors, and containing ar agreement on the part of the creditors executing it, to release the defendant from all his liabilities, and to take a dividend of his assets; which assignment was duly executed by the de fendant, and by the plaintiff and other creditors, and deliverer to the assignees named therein.</p> <p>The presiding judge thereupon ruled, that if there was m fraud in the defendant in making this assignment, and it was duly carried into execution, and if the paper signed by the defendant was made at the same time with, and in consideration of, the plaintiff’s signing the assignment, the assignment discharged the defendant from his liability on the note.</p> <p>A verdict was taken for the defendant, and the plaintiff alleged exceptions to the ruling of the judge.</p>

<p>It is an improper practice to insert the particular errors m the writ of error; they should he stated in the scire facias to hear errors. Error does not lie to reverse a judgment on the ground that a promissory note, filed in support of the action by the endorsee, was not negotiable.</p>

<p>Where, upon a libel for a divorce, filed in the clerk’s office, and served by leaving a summons at the respondent’s last usual place of abode, it was suggested to the Court that he was out of the state, personal notice was ordered to be given, returnable at the present term; which being done, the Court proceeded to hear ' and determine the cause</p>

The defendant was tried before Merrick, J., in the court of common pleas, for selling liquor without license to Parker Cummings; who, being called as a witness for the prosecution was objected to by the defendant as incompetent, on the ground, that he had been convicted of the offence of obstructing the passing of cars on the New Bedford and Taunton Railroad by laying a log across the track, and by filling up the space between the rails with blocks and stones, and by…

The declaration was “ in a plea of the case for that whereas the said Gray, at said Boston, on the first day of July, 1800, had subscribed a certain policy of insurance, which the plaintiffs had caused to be made upon the cargo of the ship Diana, of which the plaintiffs were the owners, and therein and thereby, for a valuable consideration therein mentioned, as the premium of insurance paid the said Gray by the plaintiffs, insured for them the sum of 3000 dollars on the same…

<p>This was a libel filed by the libellant for the purpose of annulling his marriage. At the hearing before Metcalf, J., it appeared that the parties were married in this commonwealth in 1846 ; that the wife had been formerly married in Rhode Island to Thomas G. Stoddard, who is still living; that the supreme court of Rhode Island in 1836, on the petition of Stoddard, granted him a divorce from the bonds of matrimony for certain acts on the part of the wife, which would not have been a cause of divorce by the law of this commonwealth.</p> <p>The libellant contended that he was entitled to a decree annulling his marriage, on the ground that the respondent was the guilty party on the divorce from her former husband, and therefore by St. 1841, c. 83, could not contract another marriage, during the lifetime of her former husband. The presiding judge ruled otherwise, but at the request of the libellant reserved the question for the consideration of the full court.</p>

<p>Where, after judgment in favor of three plaintiffs, one of them dies, his death may be suggested on the clerk’s docket, and execution taken out in the name of the. survivors.</p> <p>A assigned to his attorney C a judgment obtained in a suit against B ; C caused exe cution to be levied on B’s real estate; and the officer returned on the execution that he had delivered seizin and possession of the land “ to C, who is the party in interest, as well as the attorney.” It was held, that B was entitled to hold the land as against a creditor of A, who attached it as the property of A after such levy and return, though before a deed of the land was made by A to B ; and that the levy of an execution by such creditor upon the land did not disseize A so as to render invalid a deed of the land afterwards made by A to C.</p>

This was assumpsit on a policy of insurance. The declaration contained two counts, the first of which set forth the interest of the plaintiffs in the premises insured at the time of the insurance and of the fire, the making of the policy by the defendants, whereby they promised the plaintiffs, within three months after a loss by fire and notice thereof in writing, to ascertain and determine the amount of the loss and pay the same to the plaintiffs; a loss by fire within the…

<p>In debt on bond to perform an award, the defendant, after oyer, alleges a pei formance of the award, by payment two days after the award, to the partner of the plaintiff, (not party to the bond, but whose joint concerns with the plaintiff were referred to the arbitrator,) of three several sums of money awarded to be paid by him: — the plaintiff replies a demand by him on the day of the award made, and a refusal by the defendant: — the replication was adjudged bad.</p>

This was an action of assumpsit for money had and received. At the trial, which was had on a review at the term of this Court in November, 1809, before Parker, J., the plaintiffs rested their case on the following facts proved or admitted, viz.: In March, 1800, they insured for the defendants 5000 dollars on the freight of the ship Columbia from Teneriffe to Jamaica. The said ship was laden at Tenerife with a cargo of wine belonging to Mess.

This was an action brought in the court of common pleas by a counsellor at law, to recover for his services in defending the wife of the defendant against a libel for a divorce a vinculo, filed against her by the defendant, in which the wife prevailed, and obtained a judgment dismissing the libel. At the December term, 1850, the court of common pleas ruled that the defendant was not liable for these services, and gave judgment in his favor.

This was an action of assumpsit, brought to recover the amount of an account annexed to the writ, and tried in the court of common pleas before Mellen, J., who signed the following bill of exceptions: — “ To sustain the action, the plaintiff’s book of original entries supported by his suppletory oath was offered in evidence.

<p>One obtaining a written lease for years does not thereby acquire the right to it cover the premises from a former tenant at will, by the process given by the Rev. Sts. c. 104, without first giving such tenant notice of the written lease.</p> <p>An appeal lies to this court from the judgment of the court of common pleas upon an agreed statement of facts.</p>

This action was trespass. The declaration contained two counts. The first was for breaking and entering the plaintiff’s close in Boston, pulling down, destroying, and carrying away two wooden buildings ; the second count was for breaking down the plaintiff’s fence.

<p>This was an action of trespass quare clausum fregil, tried in the court of common pleas, before Merrick, J., to whose ruling the plaintiff excepted.</p>

This was a petition for partition of land, which the petitioners claimed to hold under a deed from Obed Richardson. At the trial before Merrick, J., in the court of common pleas, the petitioners produced the deed. One of the respondents, Leonard, required them to produce both the subscribing witnesses to the deed, they being both in court, one of whom was the attorney for the petitioners.

This was an action of debt on a bond to abide the award of arbitrators, appointed by a written agreement between the parties “ to ascertain and determine, first whether any damage recoverable at law has been done to [certain] meadow lands of said Lincoln; secondly, whether said damage, if any, has been caused by the operation of the mill or works or business of said company; and, thirdly, if any damages, as aforesaid, have been thus caused, to determine and award what amount…

The plaintiff declares in case, for that the said Makepeace, at, &c., on the 9th day of December, 1807, made his certain order in writing for the payment of money, commonly called a check, therein and thereby requesting and directing the cashier of the Massachusetts Bank to pay to one John Coates, or bearer, 1000 dollars on his account; and the said Coates thereafterwards on the same day assigned and delivered the said check to the plaintiff, who thereby became, and still…

This was a writ of entry to recover a lot of land in Pawtucket. At the trial before Metcalf, J., it was proved, that George Wilkinson executed a deed of the premises in question, on the 10th of September 1841, to James Maxwell Crawford, the demandant.

<p>A refusal of the presiding judge to rule, on a motion to that effect, made by the defendant before offering any evidence, that the plaintiff, on the evidence introduced by him, cannot maintain his action, is not a subject of exceptions.</p> <p>A father, owning certain horses and carriages, put them into the possession of his son to enable him to earn his livelihood, making no stipulation as to the length of time during which the son should keep the property, and telling him that whenever he (the father) should be put to any expense on account of it, he should take it away and sell it. The son established a livery stable accordingly, paying the expenses himself, and taking the profits to his own use ; and on one occasion let a horse and carriage to go to a particular place; but the hirer drove them to another place, where they were attached as the son’s property, on a writ against him, and the attaching officer refused to give them up, when demanded by the father. It was held, that the father had such a right of posses sion as entitled him to maintain trover for them against the officer.</p>

<p>In an action against six several obligors, service was on five only, and as to the sixth, the officer certified that he had no last and usual place of abode in his county : the defendants, on whom service had been made, moved that the proceedings should be stayed for want of service on the sixth, whom they suggested to be an inhabitant of the commonwealth, and within the reach of process. The motion was overruled, and the action proceeded against the five who had been served with process.</p> <p>The statute of 1809, c. 33, § 2, by which suits on bonds given for the liberty of the prison-yard are limited to a year after the breach, does not apply to actions for breaches committed before the passage of the act.</p>

This was an action of assumpsit against the owners of the bark Harriet, to recover the amount of a bill for supplies furnished by the plaintiffs at Talcahuano, in Chili, to that vessel, while prosecuting a whaling voyage, under the command of James Durfee, one of the owners of the vessel. The defendants pleaded the general issue. At the trial, before Dewey, J., the ownership of the vessel was admitted.

<p>This was assumpsit by the assignee in insolvency of Henry W. Coggeshall, on a promissory note, dated June 3, 1847, signed by Charles Richmond, payable in six- months to the defendant, and by him indorsed in blank.</p> <p>At the trial in the court of common pleas, before Merrick, J., the plaintiff, to prove his case, called James P. Ellis, a notary public, who testified, that on the evening of the 6th of December, 1847, he received the note from the cashier of the Bristol County Bank, in Taunton, for protest for non-payment ; that he applied at the place of business of the maker, and finding it closed, and no one there to pay the note, he protested it, and put into the post-office a notice addressed to the defendant at Dighton; that he did not know where the defendant lived; that he made no inquiries, but that the cashier directed him to notify the defendant at Dighton.</p> <p>In defence, it was proved, that there were two post-offices in Dighton, one called Dighton, and the other North Dighton office; that the defendant lived several miles from both offices, but about one mile nearer to that at North Dighton; that he carried on the White Birch Factory, which was nearer to the North Dighton office; and he produced evidence, that many letters and papers were addressed to him by his correspondents at the North Dighton office, and that he took and received them from that office. The post-master at North Dighton testified, that the persons in the neighborhood of White Birch Factory pretty much all got their letters at North Dighton; that the other post-office was near Dighton lower four corners. But no evidence was offered by either party to show whether letters and papers were or were not addressed to the defendant by his correspondents at the Dighton office; or whether the defendant did or did not receive such letters and papers from that office.</p> <p>The defendant also called Henry W. Coggeshall of Taunton, who testified that he owned the note when it became payable and until he became insolvent, and that it was in the bank for collection; that he knew at that time that the defendant was carrying on business at North Dighton, and that if inquired of, he should have directed the notice to him at North Dighton.</p> <p>The judge instructed the jury, that the general rule in rela(ion to indorsers was, that seasonably placing a letter containing the notice in the post-office, directed to the town in which the indorser resides, is a sufficient notice ; but if he resides in a town in which there are two or more post-offices, then the letter may be directed to the town, without specifying to which office it should go, unless, upon reasonable inquiry, it could oe ascertained that he was accustomed to receive his letters at one of the offices only in the town, in which latter case it should be sent .to the accustomed office, and not elsewhere. And in reference to this particular case, the judge instructed the jury, that it was a question of fact, for them to consider and determine, upon the whole evidence submitted to them, whether the defendant was accustomed to receive his letters from the North Dighton office only; and that if, upon all the evi dence, it was left in doubt and uncertainty whether the defendant was or was not accustomed to receive his letters from each and both the offices in Dighton, the letter from the notary having been directed to Dighton, without designation of the particular office to which it was to go, the notice must be held to be sufficient. But if they were satisfied that the defendant was accustomed to receive his letters only from the North Dighton office, and that that fact could upon reasonable inquiry have been ascertained, then the notice must be held to be insufficient, and their verdict must be for the defendant.</p> <p>The verdict was for the plaintiff, and the defendant alleged exceptions.</p>

<p>This was an action of debt in the court of common pleas on a judgment recovered at the December term of that court for the county of Bristol, 1850. An execution was issued on the judgment; but before the service of the execution the defendant had entered in that court his petition for a review of the action in which the judgment was rendered, upon which petition the court issued an order of notice to the plaintiff, returnable at the March term, 1851; and also ordered, that a writ of supersedeas of the execution should issue, upon the defendants’ filing a sufficient bond to be approved by the court, conditioned to pay such sums of money as should appear to be due to the plaintiff upon the final judgment in review. The defendant gave bond according to the order of the court, and the writ of supersedeas issued and was duly served upon the plaintiff before the commencement of this action. At the March term, 1851, after the commencement of this action, the petition for a review was disallowed by the court.</p> <p>Upon these facts, the defendant contended and asked the court to rule that the plaintiff could not maintain his action; but the presiding judge (Hoar, J.) declined so to rule, and instructed the jury that the action might be maintained, and directed a verdict for the plaintiff. And to this ruling the defendant excepted.</p>

<p>This case was argued at Boston, in January, 1852, and is stated in the opinion of the court, so far as is material to the understanding of the points of law decided.</p>

<p>Entry sur disseisin. The demandant counts upon his own seisin within thirty years, and upon a disseisin done by the tenant, who pleads the general issue of nul disseisin, which is joined by the demandant.</p> <p>At the trial of this issue before Parker, J., November term, 1810, the demandant produced in evidence a judgment recovered by him against one David Jones, at the Court of Common Pleas for this county, and an execution, which duly issued thereon within thirty days after the judgment, and which was duly levied on the demanded premises March 5th, 1799, the same having been attached on the original writ August 2d, 1798, and possession delivered by the officer to the demandant.</p> <p>The demandant further proved that, in May, 1798, one Michael Williams, being seised in fee of the demanded premises, in pursuance of a verbal contract made with said Jones, by his deed of bargain and sale, conveyed the same to one George French and his heirs and assigns, the consideration expressed in the deed having been paid by said Jones; -and that said French on the same day executed a bond, in the penalty of 1000 dollars, the condition of which was, that he should convey the bargained premises to any person whom the said Jones should appoint.</p> <p>George French, who was sworn as a witness, testified that he acted in this affair as the friend of Jones, and at his request, Jones being an alien, not entitled to hold real estate in this common wealth; and that he, French, had no interest in the demanded premises. The same facts also were sworn to by French, in his answers' to.interrogatories on a process, in which he had been summoned as the trustee of Jones, but discharged by the Court of Common Pleas.</p> <p>In the defence it was shown that, on the 27th of July, 1798, French and Jones jointly demised the premises to one Joseph Jewett for five years, by a lease under their seals, to which Bat-son, the tenant, was a subscribing witness : * that on the 8th of March, 1799, Jewett assigned his interest in the term to Batson; and that on the next day French executed a •leed of release and quitclaim of the premises to said Batson and his heirs and assigns, under which deed Batson entered, and continued in possession0until the trial.</p> <p>It appeared also on the trial, that about the time when the demandant commenced his action against Jones, and attached the demanded premises, Batson also sued out a writ against said Jones, and caused the same premises to be attached as Jones’s property, and afterwards levied his execution upon a part of the same, but not upon that part which was levied upon by the demandant. There was no evidence of a fraudulent intention in Jones, by the conveyance from Williams to French, to delay or defeat his creditors; but the true object of making the conveyance in this manner was to secure the premises to Jones, notwithstanding his being an alien.</p> <p>If upon these facts the Court should be of opinion that the action could be maintained, it was agreed that judgment should be entered upon the verdict, which was found for the demandant; otherwise he was to become nonsuit, and the tenant allowed his costs.</p> <p>The cause was argued at the last March term by L. Bichardson and Aylioin for the demandant, and Amory and Thurston for the tenant.</p>

<p>The declaration, which was in case, contained the following count: — “ And also for that, at said Buckstown, to wit, at the said Boston, on the fifteenth day of January last past, the plaintiff was the lawful possessor and bearer of sundry bank notes of the said corporation, whereby said corporation had promised the bearers of said notes respectively to pay them the sum of money in the same notes respectively mentioned, and all of which sums amounted, as the plaintiff avers, to 6160 dollars ; and being so the possessor and bearer of said notes, the plaintiff then and there presented the same to the said corporation, at their place of discount and deposit at said Buckstown, and derhanded payment thereof; but the said corporation did then and there utterly refuse so to do; — whereby, and by force of the statute in such case made and provided, the said corporation became liable to pay to the plaintiff, beside the said principal sum after the rate of two per cent, per month thereon, by way of additional damages for the non-payment of said sum, from the time of said demand until the same should * be paid ; and being so liable, the said corporation promised the plaintiff to pay him the same sum accordingly ; yet, though requested,” &c.</p> <p>The declaration also contained two special counts on the bill of exchange or draft hereafter mentioned, and a count for 10,000 dollars, money had and received.</p> <p>The cause came before the Court on the following agreed statement of facts, viz.: —</p> <p>“ On the 5th of September, 1809, the plaintiff held in his possession, and was the proper bearer of bills of said bank, to the amount of 6160 dollars, which he duly presented to said bank, and demanded payment of the same. The cashier of the said bank, having no specie on hand, drew his bill or draft on John Crosby, Esq., president of said bank, in the words and figures following; —</p> <p>“6160 Dolls.-At sixty days’ date, pay to John Brown ox</p> <p>order six thousand one hundred and sixty dollars, and interest until paid, on his delivering to you the original sum in Penobscot bank bills in Boston.</p> <p>Jahaziah Shaw, j <^&£**~*</p> <p>John Crosby, Esq., at Boston.</p> <p>“ Which bill or draft, with the original bills of said bank to the amount thereof, was presented at the last and usual place of abode of the said Crosby in Boston, on the sixth of November, 1809, for acceptance, and not being accepted, was duly protested for non-acceptance, and due notice thereof given to said bank. On the 15th of January, 1810, the plaintiff again presented the said first-mentioned bills to the said bank, and demanded payment thereof, which was refused, the bank not having specie for the payment thereof. Afterwards, on the same day, this action was commenced on the said bills, and on the said draft. — The said parties further agree, L that the special count declaring on said bills shall be considered as good and sufficient, as if each bill had been separately declared on. 2. That if the Court shall be of opinion that the act, on which the plaintiff* claims two per cent, a month on the amount of said bills, as declared for in this suit, is constitutional, judgment shall be rendered for the plaintiff for 6160 dollars, and interest at two per cent, a month from the said 15th of January, 1810; unless the receiving of the said draft, and the holding of the said bank bills, as above, shall, in the opinion of the Court, exempt said bank from such penalty or interest. 3. That if the Court shall be of opinion, that such penalty or interest at two per cent, a month is not recoverable, then judgment shall be rendered for 6160 dollars, with six per cent, interest from Septem ber 5th, 1809, if the Court are of opinion that a bank is under a legal obligation to pay interest at all on its bills not paid when presented for payment. 4. That if the Court are of opinion that the said bank is not holden to pay any interest, judgment shall be rendered for the said sum of 6160 dollars, with costs. 5. That the said bills shall be considered as filed in Court, and be delivered to the defendants, or their agents, on the satisfaction of said judgment. It was also agreed that the bank bills above mentioned were dated and issued before the passing of the act above referred to.”</p> <p>The cause was argued at the last March term in this county by Prescott and Crane for the plaintiff, and by the attorney general, Morton, for the defendants.</p>

This was a writ of scire facias, brought against the defendant as endorser of a writ, heretofore sued out by one Leonard Lewis against the now plaintiff, in which action Lewis having recovered less than fifty dollars damage, upon his own appeal to this Court, Fairbanks had judgment for his costs, pursuant to the statute of 1803, c. 155, § 5.

<p>Hie Court will not permit one judgment to be set off against another between the same parties, when it appears that persons other than the nominal creditor are interested by assignment of the demand on which one of the judgments is rendered.</p>

<p>Case by the endorsee against the endorser of a promissory note, with an additional count for money had and received.</p> <p>On a trial upon the general issue, which was had before Parker, J., November term, 1810, a verdict was taken for the plaintiff, subject to the opinion of the Court on the following facts reported by the judge who sat at the trial: —</p> <p>Timothy Whiting made his promissory note for 5000 dollars, dated March 4th, 1809, payable to the defendant or his order in sixty days with interest. On the same day Jones endorsed the note to Henry. In the afternoon of the 2d day of May, 1809, at Boston, the plaintiff presented the note to Whiting for payment, who said he could not pay it then, or at any time, unless the plaintiff would receive the assignment of a certain note for 500 dollars in part satisfaction, which was refused. The conversation between the parties continued until after dark. Before the post-office was closed, and after the conversation above mentioned, and after the mail for that day had gone to Medway, where the defendant then resided, the plaintiff put a letter into the post-office addressed to the defendant. giving notice of the non-payment of the note in due form. The same evening the plaintiff sent his agent, with the note and a written order to the defendant, to enable the agent to receive payment of him. On the 3d day of May, at 5 * o’clock in the morning, the agent presented the note and order to the defendant, and gave notice of the presentment of the note as aforementioned to the promisor, and of his neglect to pay the contents. The defendant said he was unable to pay it, or any part of it. The agent asked if the money could be paid during that day; and was answered in the negative. The writ was then served by attaching the defendapt’s real estate at 25 minutes past 5 o’clock in the morning, and a summons was left on the 20th day of June following. The writ bore date the same day of the attachment.</p> <p>The cause was argued upon this report at the last March term in this county by Mr. Solicitor General for the plaintiff, and Bigelow for the defendant.</p>

Assumpsit by the endorsee against the endorser of a promissory note of the following tenor, viz. “ Cambridge, June 5th, 1804. — For value received of Mr. Isaac Nichols, I promise to pay him or order the sum of three thousand seven hundred and fifty dollars in five years from date, with interest annually Asa Nichols.” The defendant was defaulted at the last term, and the action was continued for judgment by consent to this term.

<p>The declaration in this case was in assumpsit, and contained the usual money counts.</p> <p>The defendant pleaded in abatement, that he had, before the service of the writ in this action upon him, been summoned as trustee of the plaintiff, at the suit of one Ahiel Wood, Jun., for a just demand of the said Wood, and the said process was still pending in the Supreme Judicial Court for the county of Lincoln, and he the said Carlton, undischarged thereof; but still remains liable upon the same suit for all the goods, effects, and credits of the plaintiff in his, the said Carlton’s hands, and possession at the time of the service of the said Wood’s process upon him ; and he avers that all and every the causes and rights of action contained in the plaintiff’s declaration in this action, which are or at any time heretofore have been in the plaintiff, were in him at the time of the said service; nor has he, the said Carlton, since that time, become indebted in any way to the plaintiff, nor have any of the plaintiff’s goods, effects, or credits come to his hands since that time ; all which he is ready to verify; wherefore he prays judgment, if he ought to be held to answer to the plaintiff’s writ and declaration, and that the same may abate.</p> <p>To this plea the plaintiff demurred, and the defendant joined in demurrer.</p>

<p>This was a certiorari to the Common Pleas of the county of Norfolk, brought by the inhabitants of Roxbury, to obtain a reversal of an order of that court, which was passed on the petition of Joseph Williams, for the discontinuance of a certain highway in said Roxbury.</p> <p>The petition for the discontinuance alleged that, by the laying out of the Norfolk and Bristol Turnpike, a small section of a road from Roxbury street to Dorchester, which passed over land of the petitioner, had been rendered useless, and thereupon prayed for its discontinuance.</p> <p>. The Common Pleas, after notice to the town of Roxbury, and hearing the parties, were of opinion that the said road had become useless by the laying out of the turnpike, and therefore ordered that it should be discontinued.</p>

Assumpsit by the plaintiff as endorsee of a bill of exchange, against the defendant, as surviving partner of the house of Aubin and Cook, endorsers of the bill. A trial was had, upon the general issue joined, before Parker, J., at the last November term in this county, when it appeared that the bill in question was drawn for £300 sterling, on the tenth of August 1809, by Joseph Cutler, of Newburyport, on Mess.

The plaintiff declares in covenant broken, upon the following indenture, viz.: — “ This indented agreement or mutual contract made between John M. Dunham, of, &c., John Gillis, of, &c., and Robert Harrington, of, &c., witnesseth that we, the subscribers, mutually agree to enter into partnership, in the manufactory of printing ink, to be carried on at Cambridgeport, upon the following conditions, viz.: The said J. M. Dunham to find suitable works to carry on the business,…

<p>Assumpsit, in which the plaintiff declares, as endorsee, against the defendant, as endorser, of a promissory note made by one John R. Greene, dated April 21st, 1807, payable to the defendant, by him endorsed to one Thomas Lathrop, and by him to the plaintiff, being payable in sixty days from date with grace at the Norwich bank.</p> <p>On the trial of the action upon the general issue before Parker, J., it appeared that the said Lathrop had procured the note, soon after its date, to be discounted at the Norwich bank, and had received therefrom the sum therein expressed ; that at the expiration of the sixty days and grace, neither the said John R. Greene nor the defendant having paid the same, the said Lathrop paid the said note at the said bank, and having taken it up, afterwards endorsed it to the plaintiff.</p> <p>The judge directed the jury, that after Lathrop had thus paid and taken up the note, it ceased to be negotiable, and therefore that the plaintiff could not recover. And the jury having returned a verdict for the defendant, the plaintiff moved for a new trial, for the misdirection of the judge.</p> <p>Bigelow, in support of the motion, argued that the note still continued negotiable, after being taken up at the bank, unless it came within the principle of the decision in the case of Blake vs. Sewall. (1) But the facts in this case are very different from the case referred to. There the payment was by Pomeroy, the real debtor ; and when he had discharged it, the note was functus oficio. Here the real debtors neglected to pay, and the action is against one of them. That was a fraudulent attempt to obtain payment of an endorser, who had lent his name for the accommodation of Pomeroy, who could never have maintained an action against any of the parties to the note. In the case at bar, Lathrop had a right of action against the prior parties to the note, as soon as he had taken it up, *just as if he had kept it in his pocket the whole sixty days; and that right he could lawfully assign to the plaintiff.</p>

This action was assumpsit, to recover a sum of money as contribution, in the nature of general average, upon a loss which happened to the schooner Polly, of which the plaintiffs were owners, on a voyage from Baltimore to Lisbon, the defendant being a freighter on said vessel. The action was tried upon the .issue of non assumpsit, before Parker, J., at the last November term in this county.

Debt on bond for 5372 dollars, dated June 18th, 1808, and conditioned that the defendant Bacon, then a prisoner in execution at the suit of the plaintiff in the jail at Cambridge, should continue a true prisoner, &c. The action was submitted to the determination of the Court upon a statement of facts, in which it was agreed * that the bond was duly executed ; that Bacon was imprisoned on the plaintiff’s execution issued upon a judgment for 2674 dollars 62 cents debt, and 11…

<p>Petition for partition. The respondent pleaded sole seizin in himself, denying the title of the petitioners. George H. Winchester and wife, seized in the right of the wife, and claiming as their share one ninth and also one seventy-second of the premises of which partition is sought, were two of the petitioners. The trial was in the court of common pleas, before Hoar, J.</p> <p>To maintain the title on the part of the petitioners, two judgments of this court upon writs of entry for undivided portions of the premises described in this petition, as the petitioners contended, against the respondent, and in favor of the demandants therein described, were read in evidence. One of these judgments was in favor of all the petitioners, in which the share of George H. and wife recovered was one seventy-second. The other judgment was in favor of George W. Winchester and wife only, for one ninth of the premises. The petitioners contended that George H. Winchester, the petitioner, was the real party, who, in the last mentioned judgment for one ninth of the premises, was called George W. Winchester; that said George H. carried on the suit, and alone was present in court as the plaintiff, directing counsel on the trial of that-cause, and that the calling him George W. on that record was a mistake, and offered evidence to that effect, to which the respondent objected; but the court overruled the objection, admitted the evidence, and instructed the jury, that if they were satisfied that George H. Winchester, one of the petitioners, was the real party who prosecuted said suit with his wife, by the nam.e of George W. Winchester, and by whom said judgment was in fact recovered, and that W. was put for H. by mistake, then said judgment was conclusive evidence to prove the right and title of George H. and wife to one ninth of the premises therein described.</p> <p>Upon reading the records of the judgments upon said writs of entry, the description of the land recovered in the one was in different words from the description of the land in the other judgment, and the description of the land in the petition for partition was in different words from the description of the land in each of the judgments, insomuch that, on the face of said three descriptions, to a person wholly unacquainted with the premises, it would not appear that they were of the same land. The respondent objected to the admission of said judgments in evidence, on the ground of variance between the descriptions of the land in the judgments and the description of the land in the petition. The petitioners offered the testimony of witnesses to prove that the land described in the petition for partition was the same land described in the judgments. To the admission of this evidence the respondent objected; but the court overruled the objection, admitted the evidence, and instructed the jury that if, upon explanation of the location of the land, under those three descriptions in different phraseology, by witnesses well acquainted with the same, they were satisfied that the premises described in the petition for partition were covered by the descriptions in the judgments, and were the same lands, then the petitioners had established their title.</p> <p>The respondent objected that the petitioners had no seizin in fact of any portion of the premises of which partition was sought, and so could not maintain this petition; the respondent having shown that he had been in possession, claiming title, for more than twenty years. The petitioners having put in evidence the two executions which issued against the respondent on the judgments upon said writs of entry, and the returns of the deputy sheriff putting the petitioners (demand-ants therein) into possession, the judge overruled the objection and instructed the jury that the seizin and possession acquired under said executions were sufficient to enable Winchester and wife, and the other petitioners, to maintain this petition for the portion of the estate recovered in the judgments on which they were issued. The petitioners, under these instructions, obtained a verdict, and the respondent excepted.</p>

<p>By an act of the state of Neio Hampshire creating a banking corporation, it was provided, that if the corporation should refuse or neglect to pay their bills on demand, the original stockholders, their successors, assigns, and the members of the corporation in their private capacities should be liable to the holder. — It was holden that such only of the original stockholders, their successors, &c., as were members of the corporation at the time when payment was refused, were liable.</p>

This was a proceeding to assess the damages occasioned to the complainants, an incorporated parish, by taking for a highway a portion of their land, bounding on land of a private person, and on part of which horse-sheds had been erected by some of the parishioners, by license of the parish.

<p>The declaration was in case, and alleged that the defendants, with one Phillips. Payson, since deceased, on the 6th of January 1809, in consideration that the plaintiffs had drawn, before that time, sundry prizes in the Harvard College lottery, of which the defendants were then and there managers, and which prizes by law the defendants, with the said Payson, deceased, were liable to pay to the plaintiffs, amounting in the whole to the sum of 1392 dollars, and in consideration that the plaintiffs, at the request of the defendants and of the said Payson, had before that * time, on the same day, delivered the same tickets to said John Gardner, [one of the defendants and] one of said managers, promised the plaintiffs to pay them the same sum on demand. — And for that the defendants, with one Phillips Payson, since deceased, at, &c., on, &c., in consideration that the plaintiffs had on the same day, at the special instance and request of the defendants and of said Pay-son, delivered to them prize tickets in the Harvard College lottery, which by law entitled the plaintiffs to receive from the defendants one other sum of 1392 dollars, promised the plaintiffs to pay them the same sum on demand. — There was also a count for money had and received by the defendants to the use of the plaintiffs.</p> <p>The action was tried at the last November term in this county, -upon the general issue of non assumpsit, before Parker, J., who reports the following facts as proved at the trial: —</p> <p>The defendants, with Phillips Payson, deceased, were duly ap pointed managers of Harvard College lottery, agreeable to a contract in the case between them and the corporation of the college, dated June 16th, 1806.</p> <p>On the 6th of January, 1809, the plaintiffs having, as their own property, a number of tickets in the fourth class of said lottery, among which were prizes to the amount of 1392 dollars, all of which tickets were signed by the defendant Gardner alone, delivered the same to the said Gardner, without receiving any money from him, taking his receipt therefor as follows, viz: — “Boston 6 Jan., 1809. Received of Mess. Gilbert Dean prize tickets in Harvard College lottery, amounting to thirteen hundred and ninety-two dollars, to be paid them on demand.</p> <p>“ John Gardner, Manager.”</p> <p>All the managers had joined in advertising the scheme of the fourth class of the lottery. Tickets were signed severally by the managers; and a separate account was kept by each with the treasurer of the college; and on the 25th of March, 1811, an account was settled between the * treasurer and Mr. Tillinghast, (one of the defendants,) in which the latter was allowed a credit for prize tickets signed by Gardner, according to Gardner’s receipt to him. The corporation of the college declined to be answerable for any claims the plaintiffs had on Gardner.</p> <p>Before the plaintiffs delivered these tickets to Gardner, they applied to Mr. Payson, to be allowed the amount of the tickets, who replied, that there would be no difficulty in getting the money of Gardner. The treasurer of the college stated that he settled an account with Gardner in July, 1810, and that in settling, each manager produced his prize tickets, and was credited for the amount of them. A separate bond was given by each manager to the college. The fourth class was finished drawing July 20th, 1808; and by the scheme prizes below 100 dollars were payable in thirty days, and those above that sum in sixty days after the drawing was completed.</p> <p>A verdict was taken for the plaintiffs by consent, to the amount of the tickets and interest, which was to be set aside, and a nonsuit entered, if, upon the above facts, the opinion of the Court should be, that the managers were not all liable in law.</p> <p>The cause stood over to this term for argument; and now,</p>

<p>This was an action of assumpsit on a policy of insurance, dated the 24th of December, 1846, whereby the defendants insured the plaintiffs ten thousand'dollars upon their ship, the Isaac Allerton, for one year, from the 16th day of the same December, at noon, against the perils of the sea, and the other customary perils. The policy contained a stipulation, that “ in case of any loss or misfortune, it shall be lawful for the insured, their factors, servants, and assigns, to sue, labor and travel for, in and about the defence, safeguard and recovery of the said ship, or any part thereof, without prejudice to this insurance, to the charges whereof the said insurance company will contribute, in proportion as the sum insured is to the whole sum at risk.”</p> <p>The case was submitted to the court upon the following statement of facts: “ The Isaac Allerton, being seaworthy and properly manned and equipped, sailed from New Orleans to Liverpool, with a cargo of cotton and cobalt, under the protection of the policy, on the 18th of September, 1847; and during the voyage, on the 10th of November, 1847, about five o’clock in the morning, came in collision with a British steamer, called the Queen Victoria, in which both vessels suffered much damage.</p> <p>“ The ship subsequently arrived in Liverpool, and proceedings were commenced against her in the English court of admiralty in behalf of the owners of the steamer for damage done to her, and the vessel arrested, which was afterwards discharged on the owner’s giving sufficient security. A libel was also instituted for damages in behalf of the owners of the ship against the steamer. Upon a hearing of the causea the court of admiralty ordered the libel against the steamer to be dismissed with costs. for the respondents; and pro» nounced for damages and costs in favor of the owners of the steamer against the owners of the ship; which costs and damages, amounting to the sum of £2,500, or thereabouts, the plaintiffs were obliged to pay. The defendants have paid their proportion of the expenses of repairing the damage suffered by the ship. The records of the proceedings in the court of admiralty are made a part of the case, and the court are to draw all just inferences of law and fact therefrom.</p> <p>“ If, upon this statement and the inferences to be drawn, the court shall be of opinion that the plaintiffs are entitled to recover, the case shall be sent to an assessor, (unless the parties agree on the damages,) and judgment entered for the amount due, with costs; otherwise, the defendants are to recover costs.”</p> <p>The records of the proceedings in the court of admiralty are not material to the understanding of the case.</p>

<p>In an action against one of several joint promisers in a note of hand, it is no bar that one of the promisers other than the defendant has paid his share, and been discharged by the promisee.</p> <p>It is no bar to an action on a promissory note for the payment of money at a day and place certain, that the holder of the note was not present at the time and place fixed for payment.</p>

This action was assumpsit against the defendant as owner of the ship Herald, for wages due the plaintiff’s intestate, Tobias Butler, as a mariner in a voyage from London to some port in Spain, and from thence to South America, and back' to London.

<p>Where a defendant producing a witness had declared that it belonged to such witness to pay the demand sued as well as himself, such witness cannot be sworn.</p>

Debt on an administration bond, in which the defendant was surety for Martha Leverett, to whom the judge of probate had committed the administration of the estate of her deceased husband, Thomas Leverett. Dated April 20th, 1778.

Judgment having been rendered for the plaintiffs at the last term, and they having neglected to sue out their execution thereon, Ephraim Locke, the bail for the defendant, brought him into Court and Hubbard, in behalf of the bail, moved the Court to order the defendant into custody, or otherwise direct, so that he, the said Locke, might be saved harmless from the condition of the bail bond.

<p>There is no statute provision for the punishment of the crime of breaking and entering a warehouse in the night time.</p>

<p>Where the wife joined her husband in a mortgage, relinquishing her claim of dower, and after the death of the mortgagor, the purchaser of the equity of redemption paid the money due on the mortgage, and the mortgagee acknowledged the discharge on the record, it was held that the widow of the mortgagor was barred of her dower.</p>

The declaration in this case, which was in assumpsit, contained three counts.

This was an action of the case upon a policy of insurance, by which the defendants insured for the plaintiff 11,700 dollars on 190 chests of black tea on board the ship President Adams, at and from Boston to Tonningen, with liberty to touch at Heligoland for infor motion, and a pilot.

<p>An agent of a fire insurance company established m a foreign country having executed a policy, on which a supposed loss has arisen, is not therefore the trustee of the assured.</p>

The declaration in this case, which was in assumpsit, contained two counts. The first was on a promise of the defendants to account, as bailiffs and receivers of James Murray, late of Calcutta, deceased, (whose administrator, with the will of the deceased annexed, the plaintiff is,) for certain goods shipped to the defendants from Calcutta by the said deceased.' The second count was indebitatus assumpsit for money had and received.

<p>This was a writ of entry. The whole matter appears in the opinion, which was delivered at the last October term by</p>

<p>A deed, conveying a right to flow, conferred upon the grantees a right to raise and keep up the water of their dam to the height of a hole drilled in a certain rock described in the deed. It was held, that a hole drilled nineteen years afterwards, without notice to the grantor, by one of the grantees, who had in the mean time conveyed away his interest under the deed, and after a disagreement had arisen respecting the right to flow, could not be treated as the monument referred to in the deed, although drilled at the place agreed on by the parties when the deed was made; and that evidence that it was so drilled was inadmissible to show the extent of the right to flow.</p>

<p>This was an action by the payee against the maker of a promissory note.</p> <p>The defendant alleged that the note was an accommodation note, given by him to the plaintiff as a loan without consideration; and also filed an account in set off. It appeared by the writ, that the defendant was held to bail thereon, the oath for that purpose being made, on behalf of the plaintiff, by George Dodge, by whom the writ was also indorsed as follows: “ Mr. Officer. Attach sufficient property, or hold to bail. Per order of George Dodge, for said Snow.” The action had been referred to an auditor, who reported that the plaintiff was entitled to recover the amount of the note with interest, and that the defendant had failed to prove any and every item of his set-off.</p> <p>The trial was in the court of common pleas, before Hoar, J., when the defendant, on the ground that the auditor’s report made aprimd facie case for the plaintiff, moved for the opening and close; but the defendant also stating that the consideration of the note was denied, the judge refused the motion, and the plaintiff opened and closed.</p> <p>George Dodge, being called as a witness for the plaintiff, stated upon his examination upon the voir die, that the note in suit had been used as collateral security to secure a note to the Dorchester and Milton Bank, upon which he was indorser and Snow promisor, and had been held by the bank as such collateral security, until the note so secured was paid by Dodge at the office of the plaintiff’s attorney, where the note in suit was then left by the cashier of the bank; and Dodge then or soon after, as agent for Snow, caused this suit to be brought in the name of Snow, by whom the note was indorsed in blank; that he, as agent for Snow, had paid money for the expenses of this suit; that the money so expended by him had been returned to him by Snow; and that he had no interest in this note or suit, but as agent for Snow; and that there were cross claims subsisting between him and Snow, but he could not state which owed the other. The witness was thereupon objected to by the defendant, but admitted by the court.</p> <p>Dodge testified, that after he had caused this action to be brought as aforesaid, the defendant called upon him, and offered to settle this action by paying the costs and one half of the note in cash, and giving his note, with a good indorser, for the residue, and said that he would pay the note last named as soon as his hands could earn it; and that the defendant, during this conversation, said he owed the note in suit. This testimony was specifically objected to by the defendant, but was admitted by the court.</p> <p>The jury, upon the evidence above stated, and other evidence not material to the understanding of the points of law decided, returned a verdict for the plaintiff. The defendant alleged exceptions.</p>

<p>Assumpsit on a policy of insurance, brought by Martin Carroll and Ebenezer Gay, Esq. assignee of Joshua Snow, a bankrupt. By the policy the defendants assured for the said Carroll and Snow the sum of 1400 dollars on the schooner Union for one year from the 9th day of May, 1801. The plaintiffs declare for a total loss by the perils of the sea within the year.</p> <p>* At the trial, which was had here at the last November term before Sewall, J., it was in evidence that the schooner sailed in the month of December, 1801, from the province of Nova Scotia, bound to some port in the United States, and had never since been heard of.</p> <p>The defence set up was, that before the loss took place, viz. on the 23d of September, 1801, Carroll and Snow conveyed the vessel by a regular bill of sale to one Nathaniel Waterman, who afterwards caused her to be duly enrolled at the custom-house for the port of Boston in his name, conformably to said bill of sale.</p> <p>The judge directed a nonsuit, subject to tfye opinion of the Court, whether the change of property by the said transfer determined the interest of the assured in the policy declared on.</p> <p>At the last term it was moved by Dexter and Thurston, of coun sel for the plaintiffs, that the nonsuit be set aside, and the action sent to another trial; and in support of the motion it was stated, that the bill of sale to Waterman, though absolute on the face of it, was intended by the parties only as a pledge or security, to indemnify him against a bond, which he had entered into upon a replevin of the vessel, which had been attached, and replevied by Carroll and Snow.—It was also stated that afterwards, viz. on the 11th of November, 1801, Waterman agreed with Snow for the absolute purchase of his moiety of the vessel, and had paid him for the same ; and that on the 6th of May, 1802, three days before the expiration of the policy, Waterman, by a bill of sale duly executed, conveyed a moiety of the vessel to the plaintiff Carroll.</p>

Alvah Kittredge and Francis C. Head, summoned as trustees of the principal defendant, disclosed in their answers, that they were two of the five commissioners of the Roxbury Cemetery, with whom the principal defendant had made a contract in writing, on the 10th of May, 1848, to fence the lots in the cemetery at a certain price; “said fence to be completed by the 15th of June next ensuing; when payment is to be made, or as soon after as the money can be collected from…

<p>The parties to a sale of land, at the time of the delivery of the deed and the giving of a note for the purchase money, executed an agreement in writing, stipulating that if it should be determined, in a suit then pending between other parties, in which one part of a certain line was in issue, another part of which affected the boundaries of the premises conveyed, that the grantor was not entitled to a certain part of the land included in the deed, he should repay to the grantee a certain portion of the purchase money. It was held, that by this agreement the grantor’s right and title to convey was made to depend upon the final decision of the suit between the other parties; and that if such decision was unfavorable to the grantor, it might be shown in defence, pro tanto, to an action on the note given for the purchase money.</p>

The action was in assumpsit, and was originally brought against the defendant’s intestate, as he was assignee of the effects of William P. Smith, a bankrupt. The said intestate dying during the pendency of the suit, the defendant was admitted to take upon him the defence of the action. The declaration contained three counts.

-This was an action on the case, tried before Fletcher, J., and, by consent of parties, taken from the jury and reserved for the consideration of the whole court, upon the defendants’ objection, that the declaration disclosed no cause of action. If the court should be of opinion that the action could be maintained, the case was to be sent to a jury; otherwise, the plaintiff was to become nonsuit.

<p>A husband, who for three years successively occupies land assigned to his wife ns dower, obtains a settlement by virtue of St. 1821, c. 94, and Rev. Sts. c. 45, § 1.</p> <p>The occupation of an estate of freehold by the grantor, after a conveyance thereof which is fraudulent and void as against creditors, is not sufficient to gain a settlement under the fourth mode provided in the Rev. Sts. c. 45, 6 1, although he has a bond for a reconveyance from the grantee.</p>

<p>A cargo was insured from Boston to the port of discharge m Europe, against all risks of every name and nature, (bad debts and illicit trade excepted;) it being understood by the parties that the vessel was intended for some port in Holland, or wherever else the master should deem proper, in case she could not get into Holland: The vessel arrived in the Maese, and might have gone to Rotterdam, but the master, learning that if he proceeded to Rotterdam the property would be confiscated, left Holland and proceeded to Gottenburg, and in going from thence for a market in the Baltic the vessel was captured by the Danes, and with the cargo condemned as prize. — It was held that neither the departure from Holland, nor the going from Gottenhurg for a market, was a deviation; but that the property was still protected by the policy, and the underwriters bound to pay the loss.</p>

<p>A minor child, having the settlement of its deceased father, does not lose it, and acquire the settlement of its mother, on her gaining a new settlement by a second marriage.</p>

This was a petition for a certiorari. The petitioner, a minor under the age of two years, by his next friend, Alexander Pope, represented that Henry II, Peters and Susan B. Thaxter intermarried on the 12th of July, 1848; that by an antenuptial agreement, according to the provisions of St. 1845, c. 208, dated the 6th of said July, all the estate, both real and personal, of said Susan, was secured to her sole and separate use, free from the control and interference of her…

<p>The declaration was in assumpsit upon a promissory note made by James Gordon, the defendant’s intestate, dated November 29th, 1765, whereby the said James promised one John Erving, president of the Scots Charitable Society, then so called, one William Murray, treasurer of the same society, and one John Moffat, one of the managers thereof, to pay them or either of their orders, for the use of said society, the sum of 2347. Os. 4 1 -2d. of the late lawful money, &c. The plaintiffs then aver that the said James Gordon died intestate before the 16th day of March, 1786; and that by an act of the legislature of this commonwealth, passed on that day for incorporating The Scots Charitable Society, all the rights, credits and money then due and owing to the said Scots Charitable Society, of which the said John Erving "was president as aforesaid, or to any person or persons for them or their use, were by the act aforesaid confirmed to the said Society by the said act incorporated, whereby the estate, which was of the said James Gordon deceased, became liable and chargeable to the said incorporated society for the contents of said note; yet the said administrator, though requested, &c.</p> <p>A verdict was taken for the plaintiffs, subject to the opinion of the Court on the following facts agreed by the parties, viz. “ That John Erving, Esq., survived .the other promisees. The Scots Charitable Society, at the commencement of the revolutionary war, consisted of more than fifty persons, resident in Boston. At that time many of the members became absentees, and the society’s case of papers was carried first to New York, and afterwards to Nova Scotia; and for some years the possessor refused to deliver it up to the members residing in Boston, alleging that the other members were entitled to their proportion of the funds ; but at length, about six years since, he was induced to give it up, by being paid one hundred dollars.</p> <p>* When the “ act for incorporating certain persons by the name of the Scots Charitable Society ” passed, which was on the 16th of March, 1786, and which act is agreed to be a part of this case, the number of members in Boston was seventeen or eighteen.</p> <p>If by force of the said act, the Scots Charitable Society have a right to maintain this action, upon the note declared on, the parties agree that judgment shall be entered according to the verdict, the costs to be subject to the opinion of the Court; but if the Court shall be of a different opinion, the parties agree that the amount of costs, to which the defendant might be entitled, shall be deducted from the amount of the verdict, and judgment be entered for the balance without costs.</p> <p>[The act referred to, (1) in its preamble recites that a number of persons had for many years associated themselves in the town of Boston, for the purpose of joining their charities, for the relief of certain widows, orphans, and other objects of charity, and had raised a common stock, but were unable to recover the moneys they had letten on interest, and to transact the business necessary for supporting the said institution. The first section incorporates certain persons by name, with such other persons as they may hereafter admit, by the name of The Scots Charitable Society, gives them power to have a common seal, and to make by-laws, &c. The 2d section enables them to sue and be sued, to make purchases, and to hold and manage estates, &c. The third section appoints the method of calling the first meeting, &c. The fourth section limits the number of the society. And the fifth section enacts that the society be “ empowered to receive to their use all moneys due to the society heretofore called the Scots Society in Boston, before the passing of this act, and to give receipts for moneys they shall receive, to any person or persons who have heretofore given their obligations to the said Scots Society, which are now in the hands of absentees, which receipts may be given in evidence in any * action that may hereafter be brought on any obligation of the description aforesaid.”]</p>

Assumpsit on a promissory note made by Curtis to Truman, by whom the action was commenced, and upon whose death his ad ministrator was admitted to prosecute it. - The defendant filed an account for sundry services performed, and for a puncheon of rum.

<p>Assumpsit on a policy of insurance, dated September 26th, 1808, on the ship Franklin and her freight from New London to Martinico, and at and from thence to her port of discharge in the United States; 15,000 dollars on the vessel, and 1000 dollars on freight, against the usual risks.</p> <p>Trial was had upon the general issue, November term, 1810, before Parker, J., from whose report of the evidence at the trial it appears, that the ship sailed from New London on the 11th of August, 1808, and arrived at Martinico on the, 10th of September following. On the first of the ensuing November she was loaded and sailed for the United States; and on the 8th of the same month was captured by a British ship of war, and ordered for Bermudas; but * was afterwards taken possession of by another British vessel, and carried to Gibraltar, where she was libelled and condemned as prize.</p> <p>[In the decree of condemnation, after a recital that the hearing of further proof with respect to the rescue of the said vessel and her lading, and upon the reserved question of violating the blockade of the enemies’ islands in the West Indies, the judge “ pronounced the said vessel called the Franklin and her lading to have been unlawfully rescued and rethken by the master from the possession of the prizemaster, and others put on board thereof from his majesty’s s.oop of war Ferret, — Wells, Esq., commander, whilst proceeding to a British port for adjudication, and as such, or otherwise, subject and liable to confiscation ; and condemned the same as good and lawfu. prize, &c.”J</p> <p>The defendant contended, that the said decree was conclusive evidence that the original capture was for violating a blockade of Martinico, and of her subsequent rescue by the master and crew which remained on board, and that for those causes she was justly condemned, and so the underwriters were discharged.</p> <p>But the plaintiffs were permitted to show to the jury, notwith standing said decree, that the island of Martinico was not blockaded, and that no rescue of the vessel took place; but that whatever was done was by the consent of the British prizemaster; and the jury were directed, that if they believed that the said island was not blockaded, and that no rescue had taken place, they ought to find a verdict for the plaintiffs, there having been an abandonment by the agent of the plaintiffs on the 23d of March, which was within a reasonable time after the intelligence of the original capture was received, and before the subsequent proceedings relative to said vessel were known to the plaintiffs, but in fact after the supposed rescue; and the jury were further instructed, that if they were satisfied that there was no blockade of Martinico, but that the capture was a mere * pretext, without color of right, a rescue under such circumstances was no cause of condemnation by the law of nations, and a condemnation on such ground would not discharge the underwriters.</p> <p>If the decree aforesaid was not conclusive evidence, and the above directions were right in the opinion of the Court, the verdict, which was found for the plaintiffs, was to stand, and judgment to be rendered thereon, with additional interest; otherwise the plaintiffs were to become nonsuit.</p> <p>The action stood continued to the last March term, and was then argued by Prescott and Sullivan for the plaintiffs, and Otis and Jackson for the defendant; and being thence continued to this term for advisement,</p>

This was a petition for a writ of certiorari, in which the petitioners alleged that the county commissioners for this county, at their meeting in June, 1851, adjudged that common convenience and necessity required the whole of the Braintree and Weymouth turnpike, in the towns of Braintree, Quincy and Weymouth, to be laid out as a public highway; that on the 15th of August, 1851, they located the turnpike as a oublic highway through the towns of Braintree, Quincy and…

<p>A mill owner, who erects a reservoir dam on his own land, across a natural stream other than the stream on which his mill is situated, and constructs an artificial channel from the reservoir to his mill pond, for the purpose of conducting water from the reservoir to his mill, and also to enable him to use the reservoir for the purpose of holding the surplus water of the mill pond, is liable, notwithstanding the mill act (Rev. Sts. e. 116), to an action on the case for the flowing thereby occasioned of the land of another person situated above the reservoir on the stream across which the reservoir dam is built.</p>

<p>This was an action of replevin, commenced in the court of common pleas, for “ all the glass ware now in the Norfolk Glass Works in Roxbury, and the buildings belonging to said works; all the moulds in said said glass works so called; all the sand, rosin, soda ash, lime, and other materials for the manufacture of glass, now in or about said works, being the same under attachment by Thomas Adams, sheriff, as the property of one Joseph Foster, over which he has now possession and control; also all the glass, moulds and materials for manufacturing glass, now under attachment by said Adams, wherever they may be in said Roxbury, which he claims as the property of said Foster; all of the value of eight hundred dollars; belonging to Chester Judson, doing business under the style of Judson & Co. of Newton, in the county of Middlesex, doing business in Boston, in the county of Suffolk, and Henry B. Williams of said Newton, merchant, plaintiffs, now attached by Thomas Adams, sheriff of Roxbury, in said county of Norfolk, at said Roxbury, in the county aforesaid.”</p> <p>The writ alleged the taking to be at Boston. The coroner who served the writ returned thereon, among other things, that by virtue thereof he took from the plaintiffs a bond to the defendant with sufficient sureties, approved by the coro ner, in a penalty double the value of the property, as ascertained by agreement of the parties, with condition to prosecute the replevin to final judgment, and to pay such costs and damages as the defendant should recover against the plaintiffs, and also to return the property in case such should be the final judgment. The bond was in the usual form; but' the sureties were described only as “ Baker & Chase, and W. & W. K. Lewis, merchants, of Boston,” and the bond was executed by them respectively by the same names.</p> <p>The defendant pleaded the general issue; and specified in his defence, that as sheriff of this county he attached the goods replevied as the property of one Foster on eight writs against him, and that Foster was the owner or part owner of the property at the time of the attachment.</p> <p>At the return term, the defendant moved to dismiss the action for the following reasons: 1; Because the writ alleged, that the goods replevied were taken at Boston, and therefore the action lay only in the county of Suffolk; 2. Because the writ was not subscribed by, nor did it issue from the office of, the clerk of this court for the county of Norfolk; 3. Because no replevin bond, sufficient in law, was given to the defendant before service of the writ.</p> <p>The plaintiffs thereupon moved to amend by alleging the taking to be in Roxbury instead of Boston; which motion was allowed, and the motion to dismiss overruled, by Eying-ton, J., before whom the case was afterwards tried.</p> <p>The plaintiffs, in support of then: action, introduced in evidence a contract in writing, between them on the one part, and the said Foster on the other, for the manufacture by him of certain articles for the plaintiffs; and it was admitted, that the articles replevied were manufactured by Foster from materials furnished by the plaintiffs, under the contract, and that they were in Foster’s shop at the time of the attachment.</p> <p>The material parts of the contract were as follows: —</p> <p>First, said Judson & Co. and said Williams agree to furnish such materials as are required for the purpose of manufacturing and making glass bottles and such other glass ware as they may from time to time decide upon to be manufactured. And said Foster agrees to manufacture said materials, furnished by said Judson & Co. & Williams, into such glass ware as they shall direct, and to do the same in a faithful and -workmanlike manner, and to give his whole time and attention to said business, and to see that no unnecessary waste is made of any property belonging to said Judson & Co. and said Williams, and that no wares or other property shall be permitted to go from the works, without the consent of and an account of the same being rendered to said Judson & Co. and said Williams (or said Judson & Co. who are to act as agents in conducting the business.) Said Foster furthei agrees to hire the buildings and works necessary to cany on said manufacturing, and to hire and pay all the workmen, and pay all the expense of conducting and carrying on the business.</p> <p>For and in consideration of which, said Judson & Co. and said Williams agree to pay said Foster such amount as shall arise from the profits of the business, after first deducting the cost of all materials furnished, and incidental expenses incurred by said Judson & Co., together with ten per cent on the amount of sales of all ware manufactured at said works.</p> <p>Said Judson & Co. and said Williams to keep a strict and just account of all wares sold, and to make up the sales once a month, and to render a statement thereof to said Foster, if so required, and to pay said Foster the amount which shall be due him, arising from the profits of the business, from time to time as required, reserving to themselves the right to retain in their own hands one quarter of the amount found to be due to said Foster, from, time to time, and are not bound to pay the same to the said Foster until a yearly or general settlement is made, but the said one quarter amount shall remain as security for the faithful performance of this agreement, on the part of said Foster.</p> <p>Said Judson & Co. and said Williams agree to deliver to said Foster money from time to time for the purpose of paying off the men employed; but it is distinctly understood and agreed, that said Foster is to pay said men employed by him, and all rent for said Koxbury Glass Works, and that Judson & Co. and said Williams are in no way liable for the labor of said men or rent, unless by special agreement.</p> <p>This agreement to continue during the pleasure of said Judson & Co. and said Williams, and said Foster shall in no case give up or transfer to any person the said works or business, without the consent of said Judson & Co. and said Williams ; and said Judson & Co. and said Williams shall not discontinue it without first giving said Foster reasonable notice; but if not found to be an object to them to continue to carry on the business, they may at any time discontinue it.</p> <p>The defendant contended that the contract, upon its face, was fraudulent and void as to attaching creditors, and asked the judge so to rule, but the judge refused. The defendant also contended that it was a question to be determined by the jury, upon an inspection of the instrument, whether the contract was fraudulent; but the judge ruled, that the contract was not fraudulent on the face of it, or by any terms contained in it, as to the attaching creditors of Foster, and that whether it was so or not, was a question to be decided by the judge, and not by the jury.</p> <p>The jury returned a verdict for the plaintiffs, and the defendant excepted.</p>

This was an action of assumpsit on the following order, dated at Eoxbury, January 23, 1850, addressed to the defendant, and signed by A. M. & S. Osborn: “ Please pay to Lewis Grandy or order one hundred and fifty dollars, when we shall have fulfilled our part of the contract with you, which is dated September 24,1849, and the third payment mentioned in said contract shall be due from you, and charge the same to us as part of said third payment.” On the face of this order was…

<p>A testator by bis will provided that certain property should be kept on interest, and the interest added to the principal, until the decease of D., and that at D.’s decease the principal and accumulated interest should be paid to D.’s children; and in a subsequent clause provided, that if J. should outlive D., the interest of the principal should be paid to J. annually during his life, and at his decease the principal sum should be disposed of as above directed. J. outlived D. It was held, that on the decease of D., the interest which had accumulated during his life should be distributed among his children, and that J. was entitled only to the interest on the original principal during his life.</p>

<p>» is no defence to an indictment for obtaining goods by false pretences, that the party defrauded made false representations to the defendant as to the goods so obtained; nor that the goods were of less value than alleged in the indictment.</p> <p>It is no ground for arresting judgment, on an indictment for obtaining goods by false pretences, that one of the pretences set forth therein is not distinctly negatived, provided the indictment contains an allegation of one or more false pretences, upon which the defendant may be convicted, which are properly negatived and established by the evidence.</p>

<p>This was a suit in equity, heard before Dewey, J., and by him reported for the consideration of the full court. The case was argued in writing by D. Saunders, Jr., for the plaintiff, and N. W. Hazen, for the defendant. All the facts are stated in the opinion, which was delivered at the November term, 1852, by</p>

This was an action of debt on a bond, dated the 15th of December, 1847, executed by the defendants, Thomas Wade and John Wade, in the penal sum of four hundred dollars, and conditioned that the defendants should deliver up to the plaintiff, at the expiration of one year from said date, “ the drugs, medicines, fixtures, &c., in the store, occupied by the said Thomas Wade, in as good condition as at present, valued at ¡$>319.33, as per schedule of the same hereunto annexed, or…

<p>The drawing of a lottery, with the consent and participation of the assured, in a building insured against loss by fire, as “ a shoe manufactory,” does not avoid the policy on the building, nor on the stock therein.</p>

<p>This was an action of assumpsit against the defendant, as the guardian of three minor children, for whose use the plaintiff had furnished necessaries, and was submitted to the court upon the following facts: Thomas Emerson died in October, 1847, leaving a widow and three minor children, to the latter of whom he devised his real and personal estate. The defendant was duly appointed guardian of the persons and estates of the minors, on the 16th of May, 1848; and the real estate devised to them by their father has been sold by the defendant, in pursuance of an order of the probate court, and the proceeds duly invested. The plaintiff is the father-in-law of the minors, by reason of his marriage with their mother; and has furnished board, clothing &c. for the use of the minors, according to the account annexed to the writ, for the amount of which he is entitled to recover, if for any thing; and is in very moderate circumstances, and of insufficient means to support the said minors.</p>

<p>Stockholders in a manufacturing- corporation, in a bill in equity against the treasurer and secretary of the corporation and F., set forth that the officers of the corporation mismanaged its affairs, and made a deed of all its property, for a nominal consideration, to the treasurer of the corporation and a person residing in New York; ("but the bill did not set forth that this deed was made upon any trustj ; that the officers of the corporation made certain notes in a form sufficient to bind the corporation, and indorsed them to F., and that F. had brought actions at law upon several of these notes against the corporation, and had attached the real estate of two of the plaintiffs ; that the design of the defendants, and .especially of F., with whom the other defendants conspired, was to obtain judgments against the corporation, and then, pursuant to Rev. Sts. c. 38, obtain satisfaction of the stockholders individually, the corporation not having complied with the provisions of that statute; and the plaintiffs prayed that the defendants might be enjoined from levying any execution issued or to be issued on judgments so obtained. It was held, on demurrer, that the bill could not be maintained.</p>

This was assumpsit for money had and received, to recover back the amount of a tax assessed by the defendants on the plaintiff, and paid… Held: for the purpose, among others, “ to see what method the district will prescribe for warning all future meetings.” At this meeting, it was voted, “ That future meetings be notified by posting notices at the school-house, at Captain Joseph Patch’s, and at Aaron Dodge’s corner,” and also, that the clerk warn all future meetings in said…

This was an action on the case to recover damages for a diversion of a part of the waters of a natural watercourse; and was submitted to the court upon the following statement of facts: — The land of the plaintiff is situated on the south side of a highway in the city of Lynn, called Boston old road.

This was a proceeding before a sheriff’s jury, to estimate the damage sustained by the petitioners, in consequence of the taking of the petitioners’ land by the respondents for the use of their road.

This was assumpsit brought in the court of common pleas on a promissory note, dated the 28th of February, 1849, signed by the defendant, payable to Mace & Sawyer, and by them indorsed to the plaintiff.