Volume 9 — Massachusetts Reports

<p>Where land was taken by execution from a husband, the wife was held to be dowable in the land, as it existed at the time of the extent of the execution, and not in tire erections or other improvements afterwards made.</p>

<p>The judge of probate for this county, on the application of Mary O’Neil, widow of James O’Neil, late of York, deceased, on the 20th of May, 1811, issued his warrant to certain commissioners therein named, authorizing them to set off to the said Mary her dower in the estate of her deceased husband. The commissioners made a report of their doings, which was accepted by a decree of the judge of probate on the 18th of November following. From this decree an appeal was interposed by Mr. Sheafe, to whom the. said James O’Neil had, in his lifetime, conveyed the estate in fee and in mortgage, which conveyance was uncancelled, and the money due there by unpaid.</p> <p>Sundry reasons of appeal were filed by the appellant, but in none of them was the exception taken, which was now suggested by Mellen, of counsel for the appellant, which was, that the said James O’Neil not having died seised, the Court of Probate had no jurisdiction in the case; and that the respondent’s only means of obtaining her dower, if she was entitled to it, was by bringing her writ of dower as at common law.</p>

<p>The declaration, which was in case, contained several counts. The first was as endorsee against the defendant as endorser of a promissory note, made by one James Rounds, dated September 4, 1805, for fifty-three dollars, payable, with interest, to the defendant or his order in two years from the date, with an averment of a demand on Rounds, his refusal to pay, and notice thereof to the defendant. Another count alleged that the defendant, at, &c., on, <fcc. having a note of James Rounds, for the sum of fifty-three dollars, payable to the defendant or his order in two years, with interest, in consideration that the plaintiff would pay him fifty-three dollars promised the plaintiff to endorse the said note to him, and that the same was good against Rounds, was given for a valid and'legal consideration, and would be paid to the plaintiff when it should become payable: then follow averments that the plaintiff paid the money; that the defendant endorsed the note; that the plaintiff, confiding in the defendant’s promises, * sued Rounds upon the note ; that upon the trial of that action in this Court, it appearing that the note was not given for a valid or legal consideration, a verdict was returned against the plaintiff, and Rounds recovered his costs taxed at thirty-two dollars ninety-six cents, which the plaintiff had been held to pay, besides fifty dollars more expended by himself in that action, and had lost the amount of the note and interest; of all which the defendant had had notice, and thereby became liable, &c. There was also a count for one hundred and fifty dollars laid out and expended by the plaintiff for the defendant, and another for a like sum had and received by the defendant for the use of the plaintiff.</p> <p>A trial was had upon the general issue before Thatcher, J., at the last October term in this county, and a verdict taken by consent for the plaintiff, subject to the opinion of the Court on certain facts stated by the parties.</p> <p>The execution and endorsement of the note, as declared on, were agreed. The plaintiff also produced a copy of the judgment recovered by Rounds, as mentioned in the declaration.</p> <p>No demand was made on Rounds, except by bringing the action against him, in which he recovered costs against the plaintiff; nor any notice to the defendant, except that J. Dane, Esq:, the plaintiff’s attorney in the action against Rounds, after the commencement of that action, having informed the plaintiff that Rounds had pleaded, or would plead, usury in defence of the action, and .having requested him to furnish evidence in support of the action, the plaintiff replied that he had informed M’Dugall, who had said that Rounds would not stand trial in the action.</p> <p>After the judgment was rendered against the plaintiff, Mr. Dane applied to him to satisfy that judgment, as he, Mr. D., by endorsing the original writ, was liable therefor. ' Some time afterwards, M’Du-gall called on Mr. D., in expectation of meeting the plaintiff, for the purpose of adjusting the concern; but not finding the plaintiff, he expressed a readiness to pay the amount of the note and in terest, * but did not consider himself liable to pay any costs. Mr. D. refused to make the adjustment upon those terms.</p>

Entry sur disseisin. The demandant counts on his own seisin within thirty years, and on a disseisin by the tenant, who pleads in bar as to one undivided third part of the demanded premises, that James O'Neil, her late husband, before the seisin of the demand-ant, and during the coverture of the said James and Mary, was seised in fee of the demanded premises, and afterwards the said James died, the said Mary never having parted with her right of * dower in the premises;…

<p>Trespass for an assault and battery, and false imprisonment. The defendant pleads the general issue, which is joined; and also in bar, that at the Supreme Judicial Court, holden at Alfred, in and for this county, on the last Tuesday of October, 1807, Abigail Lyman and the defendant recovered judgment against the plaintiff, for the possession of a certain tract of land described, and costs of suit taxed at 29 dollars 79 cents, unless the said H. should, within two months from, &.c., pay the said Abigail and the defendant the sum of 551 dollars 51 cents, being the amount of the principal and interest due on the mortgage deed declared on; which judgment he avers to remain in full force; and that, on the 15th of August, 1809, it was unsatisfied for said costs only; and the said Abigail having died after the rendition of the judgment, and before the day last mentioned, the defendant on that day purchased</p> <p>out of the clerk’s office a jpluries execution, in which was stated the death of the said Abigail since the rendition of the judgment, * directed to the sheriff or his deputy, and delivered the same to a deputy sheriff, to be executed and returned according to law. The plea then sets forth the exe cution in hese verba, in which, after the recital of the judgment, there is a suggestion of the death of the said Abigail after the rendition of the judgment, and a command to the sheriff to levy the money for which the judgment was rendered, with two dollars and forty cents more for this and three former writs, and to pay it to the said Moses Lyman. There is then set forth the return of the deputy sheriff, that for want of goods, &c., he had committed the said Hamilton to the jail in Alfred. And the plea concludes with stating that the plaintiff was imprisoned, kept, and detained, under the said execution, for the time mentioned in the declaration, as it was lawful, &c.</p> <p>To this plea the plaintiff demurs generally, and the defendant joins in demurrer.</p>

Assumpsit on a policy of insurance, dated December 5, 1809, whereby the plaintiff caused himself to be insured the sum of 2000 dollars “ on the brig Joseph from Boston to Tonningen; ” the vessel being valued at 4500 dollars. Premium fifteen per cent. The policy was against the usual risks, and the defendant subscribed 300 dollars. The declaration contained several counts.

<p>Where a plaintiff in the Common Pleas recovered on a verdict more than 50 dollars, the defendant appealed, and in this Court the damages were reduced below 50 dollars, the plaintiff was allowed to tax single costs only.</p>

<p>The liability of a pew in a meeting-house recently built, for the expenses of building the meeting-house, was held not to be such an encumbrance as that the vendor thereof was held to answer in damages, on a covenant that it was free from all encumbrances.</p>

<p>The defendant, being convicted before Thatcher, J., at the last October term in this county, of breaking and entering the shop of John Low, and stealing therefrom, moved that the verdict might be set aside, and a new trial be granted, because the said Low, the prosecutor, and the owner of the goods supposed to be stolen, was admitted as a witness on the trial, and did testify, not only to his property in the said goods, and that they were lost or stolen, “but. also to all the facts of the manner of losing and of finding the same, and the means thereof; and also the means and manner of breaking and entering the said shop, and to all other circumstances at large, tending in any way within the knowledge of the witness to the conviction of the defendant, in the same manner as any other witnesses; notwithstanding the objection of the defendant’s counsel to the admission of the said witness so to testify.”</p>

This was a writ of certiorari brought to quash the proceedings had before a justice of the peace for this county, at the suit of one Josiah Crediford, as clerk of a militia company, against the respondent Annis, for the deficiency of his minor son, Stephen Annis, Jun., in the arms and accoutrements required by law, and for which the justice imposed upon the respondent a fine of one dollar and fifty cents.

<p>One joint-tenant cannot convey a part of the land holden in joint-tenancy by metes and bounds to a stranger. — Nor can one entering under such a conveyance be a disseisor of the other joint-tenants; for one joint-tenant cannot be disseised by a stranger unless all are disseised; and the grantor was not disseised, as the grantee entered by his consent. The grantee in such a conveyance, therefore, gains no seisjn, either by right or by wrong.</p> <p>Where a grantee of land has recovered judgment and satisfaction against his grantor for a breach of his covenant of warranty, he cannot afterwards recover tile land granted on the grantor’s .acquiring a more perfect title.</p>

The petitioner alleges that he, being the first Protestant minister settled in the town of Brownfield, in the county of Oxford, is seised of one sixty-fourth part of all the lands within the said town, in the right of said town, and for the use of the ministry ; and also of another sixty-fourth part of all the said lands in fee simple, as such first settled minister; that he holds the same as tenant in common with the heirs of Henry Y. Brown, Esq., deceased, and others to…

<p>A owing B a sum 01 money tor a valid consideration, and B owing C a sum on which he had received usurious interest, an agreement was made that A should give to C a promissory note for the sum due from B to C, including the usurious interest; and A was discharged of so much of his debt to B. It was held that the note so given by A to C was not void by the statute against usury ; the verdict of the jury having negatived any contrivance to evade the statute.</p>

This action was brought to recover possession of certain lands, mortgaged to the plaintiffs by the defendant, as collateral security for the payment of his promissory note for 4000 dollars, payable in two years, another note for 6000 dollars, payable in three years from the date, and eight other notes for smaller sums, payable at sundry times respectively within three years from the dates, all the said notes being dated October 19, 1807, which was also the date of the…

<p>Where the drawer of a bill of exchange, at the time of drawing the bill, exhibited to the payee an absolute engagement on the part of the drawee to accept the bill, and at the same time communicated to him certain conditions and restrictions, to which the engagement was subject; in an action by the payee against the drawee, the drawer was held a competent witness to prove such communication.</p>

Assumpsit on a promissory note for 129 dollars 74 cents, made on the 28th of November, 1807, by James Weeks, the defendants’ testator, and payable to the plaintiff or his order in ninety days from the date.

<p>Of stoppage in transitu.</p> <p>[The house of W. if S. shipped certain merchandise, in their vessel, to the house of L. 8f Co. in Liverpool, with which house they had an account current; L. if Co., on receipt of the outward cargo, for which they advanced according to agreement, wrote to W. if S. that they would find employment for the vessel, or ship a return cargo. L. if Co. accordingly put on board a cargo shipped on the account and risk of W. if S. and bills or lading were signed by the master, deliverable to W. if S., to whom the goods were charged in account by L. if Co.</p> <p>Previously to the shipping of the return cargo, W.if S. had executed a writing or bill of sale to plaintiffs, purporting to convey all the cargo then on board the ship of W. if S., then on the voyage to Liverpool and back to U. S. The vessel being detained by contrary winds, after the shipment, L. if Co. heard of the failure of W. if S., and thereupon, by threatening to stop the vessel if he refused, prevailed upon the master to give up the bills of lading already signed, (excepting one, which, on his return, he delivered to W. if S., who endorsed it to the plaintiffs,) and to sign other bills of lading deliverable to the defendant or his assigns, being the agent of L. if Co.; held, in replevin fbr the goods, that the defendant must prevail, because L. if Co. had so far a control over the goods, after they had been put on board, and the first set of bills of lading had been signed, as that they might lawfully alter their destination, or they migh at least stop them in their transit; and that, if the bill of sale to the plaintiff’s could, in any event, operate to pass the property in the return cargo, it must be subject to the rights of L. &r Co. — Ed.]</p>

<p>The goods of a deceased intestate, in the hands of his administrator, are liable to be seized by an officer having an execution against the effects of the intestate, although the administrator has inventoried them, and charged himself with the amount of the inventory in the probate office, provided lie has not paid debts of the intestate to the amount of the inventory.</p>

<p>In mutual promises, where money is to be paid on a day certain, and the thing to be done by the other party is to be done on the happening of a certain event, contemplated to take place before the day fixed for the payment of the money, and the event happens accordingly, if the party fails to perform the thing, he shall have no action for the money.</p>

<p>Case upon a policy of insurance, dated January 24, 1811, by which the defendants insured for the plaintiff one thousand dollars on the schooner Jason and appurtenances, lost or not lost, valued in the policy at two thousand dollars, “ to, at, and from, one or more ports on the globe for one year, commencing the risk at Barbadoes on the 1th day of December, 1810, at 12 o'clock at noon of said day, al a premium of ten per cent., beginning the said adventure upon the said vessel and appurtenances as aforesaid, and to continue and endure during the voyage, and until the said vessel shall be arrived and moored at anchor twenty-four hours in safety, at and within the year aforesaid."</p> <p>It was agreed by the parties, in a case stated for the opinion of the Court, that the policy was duly executed on the day of its date ; that the plaintiff was owner of the vessel insured; that the said vessel was at Barbadoes on the sixth of said December, and was reported in a newspaper, which was produced by the president of the company at the time of executing .the policy, as having sailed from Barbadoes on the eighth of December for * Carthagena; that she did, in fact, sail on the sixth, and on the seventh day, at noon, was pursuing her voyage from Barbadoes for Carthagena, being then near the Island of St. Vincent in safety, and about fifty miles from Barbadoes; and that on the eleventh of said December, she was wrecked on the Island of Aves and lost. It was further agreed that, at the time of effecting the insurance aforesaid, it was not known to either of the parties on what day the said schooner left Barbadoes, otherwise than from the aforesaid report in the newspaper; but the plaintiff had before that time received a letter from the master of the Jason, dated at Barbadoes on the 5th of December, informing that the schooner was then and there in safety, and bound to Carthagena. It was likewise agreed that the plaintiff might have had his insurance commence from the 5th of December, but preferred to have it commence on the 7th, relying upon the said report in the newspaper, and not wishing it to commence earlier than he supposed necessary.</p> <p>If, upon these facts, the Court should be of opinion that the plain tiff was entitled to recover, the defendants agreed to be defaulted, and that the amount, for which judgment should be rendered against them, should be settled by commissioners to be appointed by the Court; otherwise the defendants should recover their costs.</p>

<p>Where, upon an execution, the appraisers and sheriff returned an extent of an undivided part of the real estate of which the father of the judgment debtor died seised, being in the towns of W. and G., referring, for the description thereof, to the inventory of the said estate, the return was held void, and the title to the estate not affected by it</p>

The original writ in this case, which was a personal action, was directed to the sheriff or his deputy. The ad damnum being under 70 dollars, the writ was served and returned by a constable, although not directed to him. At the return term in the court below, Howard, for the defendant, moved the court to abate the writ, ex officio, for want of legal service.

<p>The extent of an execution upon land not belonging to the judgment debtor gives no seisin thereof to the creditor.</p>

<p>The infancy of his testator is a good plea by an executor to an action on a promissory note made by the testator.</p>

<p>Entry sur disseisin. Samuel Porter demands possession of certain lands in Freeport, in this county, described in his writ, alleging that he became seised thereof in the following manner, viz.: That the tenant, Thomas Millet, on the 6th day of May, 1805, being seised of the demanded premises in his demesne as of fee, conveyed the same, by his deed of bargain and sale, in consideration of 130 dollars, to one Jacob Johnson, who, on the same day, executed and delivered to the tenant a bond in the penal sum of 260 dollars, with condition to reconvey the premises, recited therein to have been conveyed to the said Johnson, *as security for a debt of 130 dollars due to him from Millet on demand. The condition of the bond is, that if the said sum be paid within one year, and the obligee, his heirs, &c., shall refuse to reconvey the premises to Millet, then the bond shall remain in force; otherwise be void. Whereby, as the demandant alleges, the said Johnson became seised in fee and in mortgage; and being so seised, conveyed the same, on the 13th day of September, 1808, to one Abraham Reed, who, on the 3d day of May, 1809, conveyed the same to one Israel Millet, who thereby became seised in fee and in mortgage, the equity of redemption remaining in Thomas Millet, the tenant. The demandant then alleges that he, together with Leonard Morse and Seward Porter, having recovered a judgment against the said Thomas Millet, sued out their execution, and delivered the same to one Josiah Reed, a deputy sheriff, who, on the 19th day of April, 1809, seized the equity of redemption as belonging to Thomas Millet, and after having given the legal notice, and pursued in all respects the requirements of the law in this respect, on the 22d day of May, 1809, sold the same at public vendue to the demandant, and executed and delivered to him a deed of bargain and sale thereof; — and that he, having tendered to Israel Millet, the tenant in mortgage, the sum due to him, which he refused to accept, became seised of the land, of which the tenant has disseised him.</p> <p>The action was tried upon the general issue, at an adjourned session after October term, 1810, before Thatcher, J., from whose report it appears that the regular evidence, to prove all the aforesaid allegations, was produced; and it appears further from that report, that on the 10th day of April, 1809, the tenant assigned to the said Israel Millet the bond of defeasance, which had been made to him by Johnson; neither the bond nor the assignment thereof having been recorded.</p> <p>A verdict was taken for the demandant by consent, subject to the opinion of the Court, on the facts reported by the * judge who sat in the trial; it being agreed that if the Court should be of opinion that the defendant was entitled to recover in this action, judgment should be entered on the verdict; otherwise the verdict should be set aside, and the demand-ant become nonsuit.</p> <p>The cause was argued at the last May term in this county, by Whitman and Mitchell for the demandant, and Longfellow and Cutler for the tenant; and being continued for advisement, the opinion of the Court was delivered at this term by</p>

<p>Where a sheriff, having attached personal chattels on an original writ, delivers them to a third person for safe keeping, such person is the mere servant of the sheriff, and has no legal interest in the chattels; he cannot, therefore, maintain trover for them.</p>

<p>After an indictment has been received and filed by the Court, no objeeticra of an irregularity in the empanelling of the grand jury can he received as a plea to such indictment.</p> <p>Quakers are capable of serving as grand jurors.</p>

<p>Replevin of a horse. The defendant pleads property in one Frederick Perley, in abatement, and traverses the property of the plaintiff; and, for a return of the horse, he avows the taking on the 1st day of August, 1810, as a deputy sheriff, by virtue of a writ of attachment sued by one John Walker against the said Frederick Perley.</p> <p>The plaintiff, in his replication, alleges that the said Frederick Perley being indebted to him in the sum of 168 dollars, he sued out a writ of attachment against him, upon which he caused the said horse to be attached, on the 9th day of May, 1810, by one Edward Fuller, another deputy sheriff, who, after attaching the horse, placed and deposited the same in the hands and possession of the plaintiff for safe keeping; the plaintiff receiving the same into his possession for that purpose, and giving to Fuller a receipt therefor, in which he promised Fuller to return the horse to him on demand. He then alleges a return of the writ, and of the said attachment thereon, a judgment against the said Frederick Perley, and the purchase of an execution thereon, which he delivered to one Thomas * Nikerson, another deputy sheriff, who, on the 10th of January, 1811, having the said receipt given by the plaintiff to Fuller, demanded and received the said horse from the plaintiff, and afterwards duly sold him at public vendue, by virtue of said execution.</p> <p>The defendant, in his rejoinder, repeats the allegations contained in his avowry; to which the plaintiff demurs generally, and the defendant joins in demurrer.</p>

<p>Where the administrator of an insolvent estate unduly neglects to settle the account of his administration, &c., an action lies on the administration bond for the benefit of a creditor, besides the remedy against the proper estate of the administrator.</p>

<p>This action was assumpsit for a quantity of saddle-trees. The defendant pleaded in abatement, that he never made the promise alleged, but jointly with one John Minot.</p> <p>Issue being joined on this plea, a trial was had, at the last October term in this county, before Thatcher, J., and a verdict taken by consent for the defendant, subject to the opinion of the Court upon the following statement of the evidence agreed by the parties, viz.: —</p> <p>On the 1st of August, 1807, the defendant being a merchant in business at Farmington, in this county, and the said Minot carrying on the trade of a saddler in the same town, an agreement was made between _ them to carry on the saddlery business, the defendant to find the stock, and to pay and board a journeyman, and Minot to do the work, the saddles, when finished, to be divided between them, and also the profits of the business. They continued so to transact business for two years and a half. In October, 1807, the defendant agreed with the plaintiff to pay for the saddle-trees which Minot should want, and accordingly afterwards received said saddle-trees from the plaintiffs, then agreed for; and at the conclusion of said term, he took * from the shop all the saddle-trees then on hand, Minot having sold his share to the defendant, who afterwards sold the whole to a Mr. Johnson. During the term, Minot kept a book, in which was entered the stock furnished by the defendant, and also an account of saddlery sold from the shop to divers persons. On the 31st of October, 1807, the defendant agreed with R. Sylvester, one of the plaintiffs, for one hundred saddle-trees, and as many more as the defendant might want, at an agreed price, to be paid for partly in money and partly in saddlery work; and the plaintiffs then delivered the defendant a quantity of trees, in pursuance of said agreement. It was in evidence that the defendant had told a witness, in a conversation relative to his arrangement with Minot, that he, the defendant, was to find and pay for the materials to carry on the saddlery business, Minot to do the work, and the manufactured articles to be divided between them. No indentures of the agreement were produced at the trial, nor was there any evidence of directions to the plaintiffs to charge the saddle-trees to Minot, as well as to the defendant. The saddle-trees were delivered during the aforesaid term; and there was evidence that the defendant had expressed a willingness to pay the plaintiffs’ bill, but not to pay the costs.</p> <p>It was agreed that if, upon this evidence, the Court should be of opinion that the plaintiffs could maintain their action against Smith, the verdict should be set aside, and a new trial be had; otherwise that the verdict should stand, and judgment be entei xl accordingly.</p>

<p>A prison-yard enclosed, in which is situated the only necessary-house for the use of prisoners, if it has been adopted by usage as an apartment of the prison, and as an indispensable accommodation, may be considered, within a reasonable construction of the statute, as an. enlargement of the chamber or lodgings of a prisoner for debt, who is entitled to the benefit of the yard.</p>

<p>Assumpsit on a promissory note, made by the defendant to the plaintiff, as treasurer of the county of Somerset.</p> <p>The action came before the Court upon a state of facts agreed by the parties; from which it appeared that, in the year 1805, upon the application of sundry inhabitants of that part of the then county of Kennebeck, which has since been erected into the county of Somerset, to the Court of General Sessions of the county of Kennebeck, the said Court had caused to be laid out a public road through sundry unincorporated plantations, within the limits of the present county of Somerset.</p> <p>In the year 1810, the county of Somerset having been created, application was made to the Court of Common Pleas of that county, then having, by law, jurisdiction of all matters formerly cognizable by the Sessions, stating that the road, so laid out, would be impassable for a considerable part of the year, and the object of opening it defeated, unless a number of bridges and causeways were erected and made over the various streams and bogs intersecting the same; and that the expense thereof would amount to a greater sum than the inhabitants residing on and near the said road were able to encounter; and thereupon praying the said Court to order the sum of 1500 dollars to be assessed on the owners and proprietors of lands, through which the said road passed, and adjacent thereto. — After notice in the public papers, the said Court caused an assessment to be made on sundry tracts of land, for the completing and putting in repair the road aforesaid. (1)</p> <p>The defendant, being the agent of the owners of several of the said tracts or parcels of land, gave the note declared on, to prevent the sale of the same for the taxes so assessed, with an understanding and agreement that all questions, relative to said supposed road and tax, and the right to sell said lands for the non-payment of said tax, should be submitted to the determina tian of this Court.</p> <p>* It was agreed that, if the Court should be of opinion that the said road was legally laid out and established, and the tax aforesaid legally ordered and assessed, and duly advertised, so that a sale of said lands, or part thereof, for the payment of said tax, would have been valid and legal, the plaintiff should have judgment for the amount of the note declared on, and costs; — or if the Court should be of opinion that the said road was legally laid out and established, and that the said Court of Common Pleas had authority to assess a tax upon part only of said lands, and that the assessment aforesaid might be considered legal as to such part, then the Court was to determine how much the defendant ought to pay upon the land represented by him as aforesaid, and render judgment therefor with costs; —: but if the Court should be of opinion that said tax was wholly illegal or void, the plaintiff was to become nonsuit, and the defendant allowed his costs.</p>

<p>Where, in an action commenced in the Common Pleas, the plaintiff obtained a verdict and judgment for more than fifty dollars, and, upon an appeal by the defendant, and a trial in this Court, the plaintiff recovered less than twenty dollars, it was held that he was entitled to no more costs than one quarter of the damages recovered by him.</p>

<p>This was an action of debt, in which the plaintiff declares on a judgment of the Court of Common Pleas for the county of Suffolk, October term, 1807, for 277 dollars 70 cents, damage, and 9 dollars 77 cents, costs of suit. The defendant pleaded nil debet, with a reservation to give any special matter in evidence, and issue was joined by the plaintiff.</p> <p>At the trial of this issue, which was had at the last September term here, before Thatcher, J., the plaintiff produced a duly-attested copy of the judgment declared on.</p> <p>The defendant then read to the jury an attested copy of an execution, issued on the said judgment, dated November 27, 1807 and returnable on the first Tuesday of January, 1808, on which was the following return, viz.: “ Lincoln, ss. Jan. 5, 1808. By virtue of this execution, I have made diligent search, and cannot find any goods, nor moneys, nor estate, of the within-named Daniel</p> <p>Holden, within my precinct, nor wherewith to satisfy * this execution in any part; so I return it in no part satisfied. Attest. Hezekiah Wyman, Dep. Sheriff.”— The defendant read also an attested copy of a writ, sued on the 23d day of January, 1808, by the said Allen against Edmund Bridge, Esquire, sheriff of the county of Lincoln, returnable to the Court of Common Pleas in Suffolk county, April term, 1808, for the neglect of said Wyman (who was admitted to have been a deputy of the said Bridge, and to have had the said execution delivered to him in due season for service) in not executing said precept, collecting its contents, arresting the body of Holden, or returning said execution.</p> <p>It was admitted that, while the action against Bridge was pending, Wyman went to Boston, and made an adjustment with Allen, giving him his promissory note for the amount of his judgment against Holden, in consideration of which Allen discharged Bridge from the action he had brought against him, and assigned to Wyman all his, Allen’s, interest in the judgment now declared on, with authority to prosecute this action for the benefit, and at the expense, of Wyman.</p> <p>It was further in evidence that, while the said execution was in force, the defendant paid about a hundred dollars to one Cornelius Thompson, who then owed the defendant a sum of money, which, with the said hundred dollars, was equal to the amount then due on the execution; and that said Thompson thereupon agreed with the defendant to pay the execution; that Wyman called on Holden, and afterwards on Thompson, a short time before the return day of the execution, and the latter promised Wyman that he would discharge the execution, and requested him to let it expire in his hands, observing that he had some debts due him, out of which he expected to raise the money. It was understood by the witness, who testified to these latter' facts, that Wyman acquiesced in this proposal, and in consequence of this assurance of Thompson, neglected to serve the said execution on Holden.</p> <p>* A verdict was taken for the defendant by consent, subject to the opinion of the Court upon the above facts, contained in the judge’s report. If that opinion should be that the action was not maintainable, judgment was to be entered for the defendant on the verdict; otherwise the verdict was to be set aside, and a new trial granted.</p>

<p>This was an action of trespass, for taking and carrying away sundry goods and chattels of the plaintiff.</p> <p>The defendants filed a brief statement, pursuant to the statute of 1792, c. 41, in which Davenport sets forth a justification as a deputy sheriff, under an execution in favor of one Abraham Barker against Enoch Jones and Josiah Noyes, alleging the said goods to have been the property oi the said Enoch Jones, and a justification of the defendant Wyman, as servant and assistant to him, the said Davenport.</p> <p>The action was tried upon the general issue joined, at the last September term in this county, before Thatcher, J.; from whose report of the trial the following appear to be the material facts, on which the action was supposed to be maintained.</p> <p>In December, 1808, a suit was commenced by one John Peterson against the plaintiff Hammatt and the said Enoch Jones, on a joint bond given by them to secure a sum of money which they mutually owed to Peterson. Judgment being rendered in that suit against Hammatt and Jones in August, 1809, execution issued thereon on the 14th of September following, which was delivered to the defendant Wyman, also a deputy sheriff, to be by him served. Wyman soon after redelivered the execution to Mr. Ames, the attorney of Peterson, informing him that Hammatt * would soon call and settle it; and Hammatt did, in fact, settle the execution with Ames, by paying the amount of the judgment and fees. But instead of having a discharge entered upon the execution, which Ames was about to do, he, at the request of Hammatt, (who stated that he wanted the execution, in order to raise by it out of Jones’s effects one half of the debt,) gave Hammatt a separate receipt, purporting that he had received the sum paid, in full satisfaction of the execution. Hammatt then delivered the execution to Wyman, and directed him to seize and sell the household furniture of James, which was accordingly done by Wyman, the regular steps having been taken to notify the sale; and Hammatt was the purchaser of the articles for which the present action is brought. No return was made by Wyman of this sale upon the execution; no bill of sale was given, nor any delivery of the goods to Hammatt; but the same remained in the possession of Jones, (who acted as clerk at the auction,) and were intermixed, without any distinguishing mark, among other furniture of Jones’s. No receipt was ever given by Hammatt for the purchase, nor any credit in any way passed to Jones. After this, the first-mentioned execution against Jones in favor of Barker, was put into Wyman’s hands, who delivered it to Davenport, the other defendant, by virtue of which the same articles of furniture, being still in Jones’s possession, were seized and sold; and for this taking the present action was brought against the two defendants.</p> <p>The judge instructed the jury that, if they were satisfied such was ♦he meaning and understanding of the parties to the transaction, they might consider the payment of the money by Hammatt to Ames as an advance made on account of Jones’s moiety of the judgment, which was not to avail to vacate the execution, as to such moiety, but that as to it Wyman was still to proceed to sell Jones’s gooas in virtue of the execution, it was lawful for Wyman to sell as he did; that the sale was legal, and vested the property in the vendee, although the officer had not made a particular return of the sale; or, if otherwise, that it * did not lie in the mouth of Wyman to impeach his own sale on that ground; that the continued possession of the goods by Jones was evidence of fraud to those only who did not know the real state of the property; and the lending them by Hammatt to Jones, unless they were to be holden at the will of the borrower, was not such a fraudulent act as the creditors of Jones might avail themselves of.</p> <p>The defendant’s counsel excepted to the directions of the judge; and a verdict being returned for the plaintiff, the action stood continued to this term, for the consideration of the exceptions.</p>

<p>Wfiere one had conveyed land with covenants of warranty, his wife joining in the deed to relinquish her claim of dower, and the purchaser afterwards recovered damages of the vendor for a defect of his title to the land, it was held that the wife’s having joined in the deed did not bar her claim of dower in the land after her husband’s decease.</p>

<p>The entry, in the daytime, into a private house, by a prisoner having the liberty of the yard, although happening before the passing of the statute of 1808, c. 99, is not now considered to be an escape within the condition of the bond given by prisoners to entitle them to the liberty of the yard.</p>

This was also an action of debt, on a bond given by Wilson, a nrisoner in execution, at the suit of the plaintiff and his sureties.

<p>This was an action on the case against the defendant, as endorser of a promissory note, dated November 7, 1808, for the sum of 3349 dollars 16 cents, made by Jones Of Noyes, payable to the defendant, Page, at the Lincoln &f Kennebeck Bank, in fifty-seven days from the date, with customary grace, and duly endorsed by the. defendant to one Abraham Hammatt, and by him to the plaintiffs.</p> <p>At the trial, which was had before Thatcher, J., upon the general issue, at the last September term in this county, the making and endorsements of the note were agreed as declared on; the only questions made were respecting a demand on the makers, and notice of non-payment by them to the defendant.</p> <p>The cashier of the bank testified that he had always made it a practice to make out notices to endorsers of notes in the bank on the day they became due, in case they were not paid or renewed; and that he remembered making out notices to the defendant, and to the said Hammatt, when the'note in question became due, and had no doubt that he put the notice directed to the defendant into the post-office at Wiscasset; but he had no distinct recollection of this last fact. It was also proved that the defendant had agreed, in writing, that all notices directed to him should be left at the said post-office. The said cashier also testified that it had been his practice to make out all notices to promisors at the bank on the discount day, previous to the time their respective notes became due, informing them of the time when their notes would fall due, and requesting payment; which notices were usually sent by some director, when any such lived in the town with such promisors; that P. Tollman, who lived * in the same town with the said Jones &f Noyes, the promisors, was a director, and was present at the bank on the discount day, previous to the note in question becoming due; that he, the cashier, had no doubt of his making out the usual notice to Jones f Noyes, and delivering it to Tollman on that day, although he had no specific recollection of that fact; and that he was at the bank during the usual hours of business on the day the note in suit became due, ready to receive payment of the same.</p> <p>The said Tollman testified that he had generally taken notices to Bath; that he was present at the discount day above named, and had no doubt, if said notice was delivered to him, that he delivered it to Jones & Noyes, or left it at their store, though he had no distinct recollection of it, but had always been careful to deliver notices as directed, when intrusted to him.</p> <p>There was some other evidence, tending to fortify the presumption that a demand had been duly made on the promisors in the note in question, (a)</p> <p>And it was in evidence that, by a by-law of said bank, the cashier was required to notify all promisors on notes, one day, at least, before they became due, of the time of their becoming due.</p> <p>The counsel for the defendant contended, at the trial, that the plaintiffs had not proved notice to the said Jones Noyes, and a demand of payment from them, agreeably to law, and the custom and usages aforesaid.</p> <p>But the judge, who sat in the cause, directed the jury that, if the cashier of the bank was present at said bank, at the usual bank hours on the day the said note became due, and there was no money paid or deposited in said bank by said Jones &/■ Noyes, a demand upon them, or any previous notice to them, according to the custom aforesaid, was not necessary. To which direction the defendant’s counsel excepted, a verdict being found for the plaintiffs, * and the action stood over to this term upon the said exceptions.</p>

This action, being upon the same note as that demanded in the preceding action, was tried at the same term before Thatcher, J., and the same - evidence substantially produced, with the additional-testimony of the postmaster of Bath, where this defendant also lived, tending to prove that a letter of notice from the cashier was received by the mail from Wiscasset, and that it was delivered from the post-office in Bath; but at what time did not appear.

This was a writ of entry, upon which the demandants, in right of said Sarah, recovered judgment at the last September term in this county. After the judgment was rendered, and before a Writ i>f possession was sued out, the said James died. And now, at this teim, N. Bridge, attorney to said Sarah, suggested the above fact, and prayed that a writ of possession might issue on the said judgment in her name.

<p>A, seised in fee of land, devised tne same ('to B, and C, Ms wife, and the heirs of her body, to be at the disposal of their father, B, among his children, as he shall think proper, on consideration that he, the said B, or Ms heirs or assigns, pay my loving wife yearly, during her natural life, every first day of June, twenty pounds lawful money, ¡and in case I should sell said estate, I order that the money I receive shall be paid to the said B, to be disposed of among Ms children as aforesaid, he, the said B, or Ms heirs, giving my loving wife security to pay her twenty pounds yearly, as aforesaid.”</p> <p>After the death of A, B, for a valuable consideration, paid, or secured to be paid, conveys the land to D, in fee, with warranty against all persons claim- " ing under himself, or under C, his wife, and against the heirs of the devisai^ claiming as such. This deed concludes in the following words: “ I, the sajif? B, and C, my wife, in token of her full, free, and entire' relinquishment of atT her right to said grants i premises, have hereunto set our hands and seals,” &c., and they both executed the deed, in presence of two subscribing witnesses. D, at the same time, mortgaged the same land to B, as collateral security for a part of the purchase money. After the death of B, administration of his estate was granted to C, and B, the son of B and C, jointly; who made a deed, re citing the before-mentioned deeds, and calling the first the deed of B and his wife C, who are said to have conveyed the premises to D; and further reciting that D and F, originally concerned with the said D in the purchase of the land, had paid the sum mentioned in the condition of the mortgage, in full satisfaction thereof; and in order that the said mortgage should be fully and absolutely discharged, and that the tract of land aforesaid should be vested in the said D and F, the said C and E, also described as administrators of B, and in consideration of the sum mentioned in the condition of the mortgage deed aforesaid, paid by D and F, do, for themselves, and in their capacities aforesaid, grant, remise, release, and quitclaim, to the said D and F, their heirs and assigns forever, all their, the grantors’, and all the said B’s right, title, interest, and estate, in the same land; — and there is a covenant by C and E for themselves, their heirs, executors, and administrators, and in their capacities of administrators, to warrant and defend the afore-granted premises, against all persons claiming from, by, or under the grantors, or under B, deceased, it was holden that the operation of the last deed was to declare and confirm the intentions of the parties in the first; that it effectually conveyed the premises to D and F, to hold in fee simple; and that it was sufficient, according to the provisions of the statute of 1791, c. 60, to bar the issue in tail, claiming under C, even if, upon the construction of the devise, the first deed, made by B and C, was not effectual to the same purpose.</p>

<p>Of the rights of parties to a mortgage. [Where two oí three grantees ot a mortgagor, the other being at sea, agreed with R. to sell him the mortgaged premises, he providing for redemption, and paying them a certain sum of money, who, at their request, as a means of obtaining a complete title, paid to the mortgagees the mortgage debt, under an agreement that the mortgagees, as soon as the equity of redemption should be foreclosed, should convey the premises to him; or, in case of a redemption, if any should be made seasonably, and insist ed upon, should repay to him the money so paid for redemption; held, on a bill in equity, by the grantees of the mortgagor to redeem, that the payment by R., under the agreement aforesaid, was not to be considered as a payment or • discharge of the mortgage debt, so as to enable the plaintiffs to maintain their bill; and that, the time for redemption having expired, the grantee, who was absent at the time of the sale to É, had no remedy but by ratifying the sale, in which case he would be entitled to a proportion of the money agreed to be paid by J3.]</p>

<p>This action was brought to recover the seisin and possession of a parcel of land in Bangor, in this county. The demandants allege that within fifty years next before the date of their writ, one Thomas Smart was seised in fee of the demanded premises; that he died in the year 1776, leaving the demandants (and two other children, who died without issue and unmarried) his children and heirs; that, within thirty years before the date of their writ, the demandants entered into, and became seised of, the demanded premises; and that the tenants have no entry, but after a disseisin of the demand-ants committed by one John Smart.</p> <p>The tenants disclaim a part of the demanded premises, and the disclaimer is admitted; and as to the i esidue, they traverse the disseisin by John Smart, on which issue is joined. This issue was tried at the sittings here, after * June term, 1810, before Thatcher, J., when a verdict was taken for the tenants, by consent of parties, subject to the "opinion of the Court upon the rejection of certain evidence offered on the part of the demandants.</p> <p>To maintain the issue on their part, the demandants proved that, in the summer of 1771, the said Thomas Smart entered on the demanded premises, and in that or the next year built a small log-house, in which he and his family continued to live until his death, which took place in the spring of 1776 ; that, during his living on the land, he cleared a part of it, and raised upon it some corn and grass; and that, after his death, his widow, with her minor children, continued to live in said house for a year, when she removed, leaving the lot in the care of John Smart, who, for about four years next following, had the charge of it, for the use of the widow and children, and paid them rent for it. The demandants also proved their pedigree as alleged by them.</p> <p>The tenants offered some evidence, to show that the said John Smart entered upon said lot, and occupied it in .connection with the said Thomas Smart, and that, after the death of the latter, John entered and possessed the same exclusively, until he sold it, as after mentioned. They also produced copies of a letter of administration upon the said Thomas’s estate granted to his widow, and of the inventory of his estate, as rendered by her, which did not contain the said lot, although it did contain other real estate of the intestate; and they proved that, at the time of taking said inventory, she declared to the appraisers that the lot in question belonged to the said John Smart. They also produced a deed, dated April 13, 1784, from said John to James Budge, conveying the same lot to him and his heirs; also a deed of the same from Budge to John Peck and his heirs, dated March 13, 1799; also a deed of the same from said Peck to Daniel Wilde and his heirs, dated March 23, 1799; also a deed from said Wilde to Zadock French and Robert Popish *and their heirs, of one half of the said lot, dated November 21, 1800; and a deed of the other half from said Wilde to Amasa Stetson and his heirs, dated March 3, 1801; also a deed from John Reed and Peleg -Coffin, Esquires, styling themselves agents appointed by the General Court of the commonwealth of Massachusetts, to make and execute conveyances, agreeably to a resolve passed June 19, 1801, and by virtue of other powers vested in them by the same resolve, and pursuant to another resolve passed March 5, 1801, and for the consideration of eight dollars and ninety cents, conveying to the said Lapish, Stetson, and French, “ assignees of James Budge, who settled in said town of Bangor before the 1st day of January, 1784,” all the right of the commonwealth to the lot in question, viz.: to Lapish one fourth, to Stetson two fourths, and to French one fourth, this deed being dated March 2, 1802; and a deed from said Lapish, French, and Stetson, to the tenants, dated July 9, 1805. The tenants also read a resolve of the General Court, passed March 5, 1801, entitling those settlers in the town of Bangor, or their legal representatives, who actually settled before the 1st of January, 1784, to a deed of their respective lots of one hundred acres each, on their paying into the treasury of the commonwealth eight dollars and forty-five cents, with interest from the date of the resolve ; directing the agents for the sale of eastern lands to cause the several lots to be surveyed and run out by metes and bounds, and providing, in case of disputes arising between any of the settlers, relative to their dividing lines, that such disputes shall be adjusted by arbitrators, to be chosen by the parties and the surveyor; also another resolve, dated June 19, 1801, discharging the committee for the sale of eastern lands from any further service, and vesting in the said Reed and Coffin all the powers which said committee had before that time possessed.</p> <p>The demandants then moved for leave to introduce witnesses and evidence, to show that said Budge was never a settler on the demanded premises, nor in possession of the same, or of any part thereof, until after * January, 1784; and also further evidence to prove that the said John Smart never made any claim to the said lot demanded, but was ever considered as a tenant to said widow and children, as before stated ; that he had been quieted, as a settler, before January, 1784, on another lot in Bangor, under the resolves aforesaid; and that the said Thomas Smart was the true and only settler on said lot, within the true meaning of the said resolves, and entitled to all the rights of such settler; and of course that the said agents had no right or authority to make the said deed to the said assignees of the said Budge, and that nothing passed thereby. These motions were all overruled by the judge who sat in the trial; and if the evidence thus offered was proper, and ought to have been admitted, the verdict was to be set aside, and a new trial granted; otherwise, judgment was to be entered on the verdict.</p> <p>The cause was argued at the last June term in this county, by Mellen and Wilde for the demandants, and Lee and Crosby for the tenants; after which the action was continued for advisement; and at this term the opinion of the Court was delivered by</p>

<p>Tho deeds of the agents on eastern lands to the settlers m Bangor, made under the authority of the resolve of March 5,1801, are conclusive as to the bounda ries between the lots claimed by different settlers.</p>

<p>This was a writ of error brought to reverse a judgment of the Court of Common Pleas for this county, rendered in an action wherein the defendants in error were originally plaintiffs, and the plaintiff in error was original defendant.</p> <p>The declaration in the original action, which was in assumpsit, contained seven counts. The four first were upon an award of certain arbitrators, mutually elected by the parties. The first count, after reciting that certain differences existed between the parties, concerning their mutual accounts, &c., alleges that the parties put themselves on the award, determination, and judgment, of A, B, and C, to award, order, and judge, touching the premises, that they made their award in writing, and ordered that the said * Kingsley should pay to the said Bill &r Al. a certain sum of money mentioned. Neither in this, nor in the second count, is there any allegation of a promise to perform the award, or that the same was ever published or made known to the parties to the submission. The second count states the submission to have been made after the judgment of a justice of the peace had been rendered on the premises, and an appeal had been interposed by the original defendant, and adds that the award was to be made to the justice, whose judgment thereon was to be final. But there is no averment that the award was returned to the justice, or that he rendered any judgment thereon. The three last counts were indebitatus assumpsit, quantum valebant, and insimul computassent.</p> <p>The defendant pleaded, 1st. The general issue to all the counts, which was joined; and, 2d, to the three last counts he pleaded a judgment of a justice of the peace of this county, rendered in a suit for the same causes of action, in bar. To this plea the plaintiffs replied that there was no such record, &.c. The' defendant demurred to this replication, and the plaintiffs joined in demurrer.</p> <p>Upon the general issue, the jury returned a general verdict foi the plaintiffs. The Court entered judgment on the verdict, and also that the defendant’s plea in bar was insufficient.</p> <p>The cause was submitted without argument, and the judgment of the Court was pronounced by</p>

This action, which was assumpsit for the support of one Polly Severance, a pauper, was submitted to the decision of the Court, upon the following facts agreed by the parties,, viz.: That Polly Severance, formerly Polly Hall, is now a pauper, and an expense to the plaintiffs; that she was born, and had a legal settlement, in Bernardston; that, on the 4th day of March, 1800, she intermarried with one Erastus Severance, at Guilford, in the state of Vermont, the said Erastus…

This was a complaint to the Court of Common Pleas for this county, afterwards brought into this Court by appeal, wherein the said Vandusen states that he is the owner and possessor of certain lots of land in Great Barrington, situated on either side of Muddy Brook, so called, and that he ought to enjoy the same, flee from all encumbrances; and that the respondent, Comstock, is the owner and occupant of a certain saw-mill situate on said brook below said land, and, in order…

<p>A demand by the holder of a promissory note upon the maker, and notice to the endorser, are not to be dispensed with, where the promisor becomes insolvent after the assignment, and continues so until and at the time it falls due.</p>

<p>Trover for sundry cattle, swine, and other personal chattels, which were the property of Caleb Grosvenor, the plaintiff’s intestate.</p> <p>The action was submitted to the opinion of the Court upon an agreed statement of facts, of which the material ones are shortly these: —</p> <p>An action was brought on the 12th of February, 1806, by the piesent defendant against the plaintiff’s intestate, and the chattels for which the present action was brought, were attached upon the original writ in that suit, as the debtor’s property. In that suit, judgment was recovered in August, 1807; and within thirty, days after the rising of the court, the goods were taken on an execution, which issued on the . judgment upon the 3Íst of said August, and were duly sold in part satisfaction of the said execution. Three days after the issuing of the execution, the judgment debtor died. Afterwards, and after the taking of the chattels on the execution, and the sale of them by the officer, and more than thirty days from the rising of the court, at which the judgment was rendered, the present plaintiff took out letters of administration on the estate of Caleb Grosvenor, the judgment debtor. He has represented the estate to be insolvent; commissioners of insolvency have been appointed ; and a decree of distribution among the creditors has been made.</p>

Assumpsit by the payee against the maker of a promissory note.

<p>A plea in abatement may be filed in this Court, in an action originating here, at any time before an imparlance.</p> <p>Where a writ of review had been served by a sheriff, to whom it was not directed the Court permitted the plaintiff to amend, by inserting a direction to such sheriff</p>

<p>This was a writ of dower, to which the tenant pleaded in bar, — 1st. That the demandant’s husband, Joseph Catlin, was never seised, &c., on which issue was joined. 2d. That the said Joseph, being seised in his demesne as of fee, on the 28th day of March, 1793, by his deed of that date duly acknowledged, &c., for a valuable consideration, bargained and sold the same land, in which the demandant claims her dower, to one David Horton in fee simple; and that the said Abigail, by the consent of her husband, for the consideration in the said deed expressed, and also of one dollar paid her by the said David, assented and agreed to the same deed of the said Joseph, and then and there, by her act and consent, signified by her affixing her seal to the said deed, and subscribing her mark thereto, she being unable to write her name, barred herself of all right of dower in the same premises, and every part thereof; by virtue whereof, the said David became seised in fee of the same premises, free and exempt from all claim, demand, or right of dower, of the said Abigail therein</p> <p>The demandant replied, that she did rrot, by her act and consent signified, &c., bar herself, &c., and tendered an issue to the country, which was joined by the tenant.</p> <p>The several issues thus joined were tried at the last April term of this Court in this county, before Sedgwick, J., from whose report it appears that the seisin of the demandant’s husband, and her coverture, were agreed, as alleged in the writ.</p> <p>The tenant produced the deed of Joseph Catlin to David Horton. mentioned in the pleadings. It purported a conveyance *in fee of the land, in which dower is demanded, and to it, after the name and seal of her husband, were set the demandant’s seal and mark. But her name was not otherwise mentioned in the deed, nor were there any words therein purporting or implying a release of her right of dower. The deed was acknowledged by the husband, and recorded ; but there was no acknowledgment by the wife.</p> <p>On the part of the tenant, it was insisted, at the trial, that the latter issue was proved on his behalf. But the judge directed a verdict on both issues in favor of the demandant; referring to the decision of the Court the question whether that direction was right.</p> <p>It was also referred to the Court to determine any question which might arise from the finding of the jury, respecting the improved value of the land; the improvements having arisen from ditching the land, making walls, and erecting and improving buildings.</p> <p>The jury returned a verdict conformably to the directions of the judge; assessed the demandant’s damages at 49 dollars 50 cents; and certified that the improvements made upon the demanded premises, since the conveyance thereof by Joseph Catlin, were at the rate of fifty per cent.</p>

Debt on a prison bond, dated October 7, 1805, for 467 dollars 58 cents, with condition that the said David, a prisoner in the jail at Northampton at the suit of the plaintiff, should continue a true prisoner, &c. • The defendants, after oyer of the bond and condition, plead,— 1. Non est factum, on which issue is joined. 2.

<p>This was an action of slander. The declaration states that on the 1st of September, 1806, the defendant said that the plaintiff had been criminally intimate with the defendant’s wife, and that he made similar declarations on the 30th of November, 1806, and on the 1st and 30th of March, 1808.</p> <p>The action was tried, April term, 1811, before Sedgwick J., when a verdict was found for the plaintiff, and his damages assessed at three hundred dollars.</p> <p>At the trial, the plaintiff having given evidence to prove the speaking of the words charged, the defendant, by his guardian thereto admitted, having given evidence tending to show that he, the said David, before and at the several times of speaking the words, was insane, his counsel offered evidence, by the testimony of divers witnesses, to show that the said David, ever since the speaking of said words, had been, and still was, delirious and insane ; to which the counsel for the plaintiff objected. The judge refused to admit any testimony to show that the said David had been insane since the summer next succeeding the time of speaking said words ; the last time of speaking having been in the month of March. The counsel for the defendant also offered the depositions of Medad Pomeroy and Charles Blake, two physicians, who testified that in their opinion the said David had been insane from the time of speaking said words; to the admission of which depositions the counsel for the plaintiff objected, and they were excluded by the judge. To these decisions of the judge the defendant’s counsel filed exceptions, and the same were allowed by the judge.</p> <p>*The cause was argued, at the last September term here, by Newcomb for the plaintiff, and Bliss and Ash-man for the defendant.</p>

<p>A writ of error will not lie to. the Circuit Court of Common Pleas, where an appeal lies to tills Court, notwithstanding the statute provision respecting the costs upon appeal.</p> <p>Where an appeal lies, the judge below is not bound to allow a bill of exceptions.</p>

The original writ in this case was dated August 17, 1812, was served on the same day by Rodney Day, as a deputy sheriff of the county of Hampden, and was returnable to the Common Pleas for that county on the fifth Monday of August last.

This was an action of debt upon a bond executed by the defend ants, as sureties for Eleazer Clark, conditioned for his faithful dis charge of the trust of executor of the last will of Caleb Clark, Esq., deceased, dated the 4th day of December, 1792. It appeared that the action was brought for the benefit of Esther, the wife of one Wing, to whom a legacy of fifty pounds was bequeathed in and by the said last will.

<p>Debt on a bond. The defendants prayed oyer of ihe bond, which was in common form; and of the condition, which, after reciting that the plaintiff had recovered a judgment in an action of trespass on the case, against the said Silas, for the sum of 532 dollars 73 cents damage, and 46 dollars 6 cents costs, and that the said Silas, at the time of rendering the said judgment, informed the Court that he would prosecute a writ of review of the said action, &c., proceeds thus: “ Now, the condition of the foregoing obligation is such, that if the said Silas shall prosecute a review of said action to effect, at, &c., and shall answer and pay to the said Anna the sum recovered as aforesaid, with interest therefor after the rate of twelve per cent, per annum, from the time of making up the judgment aforesaid, with additional damages and double costs, if the judgment aforesaid shall be affirmed in whole, or be not otherwise satisfied; and if affirmed in part only, then shall pay the said Anna what shall remain due to her by force thereof, and shall not be reversed by the judgment that may be given on such review, or otherwise satisfied, together with interest therefor after the rate of six per cent, per annum, without fraud, covin, or delay, then this obligation to * be void and of no effect; otherwise to be and remain in full force and effect.”</p> <p>The defendants then demurred generally to the declaration, and the plaintiff joined in demurrer.</p>

This action was entry sur disseisin, in which the said Davis demands sixty-five acres of land in Rutland, in this county. lie counts on his own seisin in fee simple within twenty years last past, and until disseised by the tenant.

The declaration was “ in a plea of the case, for that there is a certain post road and public highway, leading from New York to Boston, which passes through the town of Leicester; and the said inhabitants are, and on the 6th day of April last past, were, by law, obliged to keep in repair that part thereof which lies within the said town, with all the causeways, bridges, and sluices, thereon; and * the said Ephraim is the owner and proprietor of a certain public stage-coach,…

<p>Case against the defendant, sheriff of the county of Worcester, for the neglect of one of his deputies. The declaration contained three counts, on the last of which alone the question in the action arose. That count alleges, in substance, that the plaintiff, with one Jonathan Nelson, one Daniel Nelson, and one Ashael Allen, made their joint and several note to one Daniel Waldo, for 750 dollars, payable in 57 days, and dated the 18th of December, 1808; that the note being unpaid, Waldo sued out a writ of attachment thereon, against all the said promisors, and delivered the same to one William Eaton, a deputy of the defendant, who thereupon attached sundry chattels, the property of the said Jonathan Nelson, of the value of 800 dollars, of which he made due return; that Waldo recovered judgment in the said suit for the sum of 523 dollars 67 cents damage, and 6 dollars 25 cents costs of suit; upon which he sued out his execution, and delivered the same to one Shepard Pratt, another of the deputies of the defendant, to be by him executed and returned; that Pratt, within 30 days from the rendition of the judgment, demanded of Eaton the goods he had attached as aforesaid, that they might be by him taken to satisfy the judgment aforesaid, but Eaton neglected and refused to deliver the same; that the note aforesaid, whereon the said judgment was rendered, was made and given for the sole and proper debt of the said Jonathan Nelson, and no part thereof for the debt of the plaintiff or the other promisors, or either of them, of which the said Eaton was in no wise ignorant, having been notified thereof by the said Waldo at the time of the attachment aforesaid; and that by means of the said neglect and refusal of the said Eaton, and for want of other property of the said Jonathan Nelson, to satisfy the said execution, the plaintiff had been compelled to pay, and had paid, to the said Pratt one moiety of the said judgment, &c., amounting, in the whole, to 269 * dollars 98 cents, and has wholly lost the same; — to the damage, &.c.</p> <p>A verdict on this count having been rendered for the plaintiff, the defendant moved that judgment thereon might be arrested; because the said count, and the facts therein set forth, were insufficient in law to entitle the plaintiff to have and maintain an action against the defendant, and that no judgment could by law be en tered up against him for any of the causes alleged in that count.</p>

This was an action of the case, brought against the defendant, as he was administrator of the goods and estate of Thomas Eaton. upon the following note, viz.: —

This action was assumpsit, to recover the value of an ox-wagon and one pair of oxen ; and it was tried upon the general issue joined by the parties, before the Chief Justice, at the sittings here after the last September term, when a verdict was found for the plaintiff, by direction of the judge, for 114 dollars 26 cents damage, being the value of those chattels, with interest, from the time of the demand hereafter mentioned, subject to the opinion of the Court upon the…

The declaration was in case for slander, and, after the usual allegations of the plaintiff’s good name, &c., sets forth that, in March, 1808, he was chosen town clerk of the town of Rutland, in this county, and duly sworn into office, and has ever conducted himself, in his said office, with integrity ; that, on the 6th day of March, he was engaged in the legal discharge of that office in a meeting of the inhabitants of said town, and, among other things, did faithfully and…

This action was replevin. A verdict was taken for the plaintiff, by consent of the parties, subject to the opinion of the Court upon I he following facts admitted or proved: — The chaise, which was the subject of controversy, was formerly the property of one Joel Wesson, and, on the 17th of September, 1808, was attached on an original writ against him, at the suit of one jDaniel Dennie, by one Caldwell, a deputy sheriff.

Debt on bond, the condition of which was in these words, viz.. “The condition of this obligation is such, that whereas Joseph Dodds, of Rutland, &c., hath been appointed, by the president and directors of the Worcester Bank, accountant in said bank; now, if the said Joseph Dodds shall well and faithfully perform all those duties and services in the said bank which, from time to time, shall be required of him by the president and directors of said bank for the time being, and…

This was an action against the defendant, as sheriff of the county, for the neglect of David Howe, one of bis deputies, and it was submitted to the opinion of the Court upon certain facts stated by the parties ; it being agreed that if the opinion of the Court should be, that the plaintiffs had a right to recover, the defendant should be defaulted, and judgment be rendered for the plaintiffs for their damages and costs: otherwise the plaintiffs should become nonsuit, and the…

This was a writ of certiorari directed to a justice of the peace, commanding him to certify the proceedings had before him upon the complaint of Bullard, as clerk of a militia company, (against one Nahum Andrews, a private soldier in the same company,) at whose suit the writ of certiorari issued.

Case in assumpsit. The declaration contained four counts. 1. Indebitatus assumpsit according to the account annexed ; 2. Quantum valebant for the use of the plaintiff’s vessel, and the labor and services of himself and men; 3. Indebitatus assumpsit for money laid out and expended; and, 4. For money had and received to the plaintiff’s use.

<p>A minister having been settled in a parish at a fixed salary, the parish afterwards vote that the parish committee shall annually valué the salary, according to the price of the necessaries of life, so that it should be increased as that price rose, the'minister also agreeing that it should be decreased as the price fell; it was holden that the minister was bound by the valuation of the committee, unless he could show that they had acted therein unfairly, partially, or corruptly.</p> <p>When a Congregational minister changes his religious sentiments and opinions, and the parish retain those first held by the minister, a proper case exists for an ecclesiastical council.</p> <p>The result of a mutual ecclesiastical council, legally convoked, will not bind either party rejecting it; the effect of the advice of such a council being nothing more than a legal justification of the party who shall adopt it</p> <p>When a parish, for sufficient cause, are desirous of an ecclesiastical council to advise on the dissolution of their contract with their minister, the interference of the church will not justify the minister in refusing a mutual council; and in case of such refusal, the parish may convoke a council ex parte.</p>

<p>Assumpsit and quantum meruit for services and labors performed by the plaintiff at the request of the defendants.</p> <p>The action was tried before Parker, J., upon the general issue joined, at an adjourned session of the last October term in this county, holden here in April last.</p> <p>The case made out at the trial by the plaintiff, as reported by the judge, was as follows: In the year 1804, the defendants associated for the purpose of instituting a bank at Taunton, and subscribed their names in a book, engaging to take the number of shares set against their names respectively. The plaintiff was himself a subscriber. It being necessary to apply to the legislature for a charter, it was agreed, at a meeting of a number of the sub scnbers, to employ an agent, to attend the- legislature for the obtaining such charter. The plaintiff was nominated, and the nomination agreed to by the persons present; and one of the members, acting as secretary, recorded the choice. * The plaintiff was present, and declined the agency, but it was insisted on that he should accept; and i.t was said by the company that he must be paid for it. The plaintiff did attend several sessions of the legislature, upon the business, and endeavoring to obtain the charter; but he did not succeed. It was not disputed that the sum demanded was reasonable, provided the plaintiff was entitled to recover any thing.</p> <p>No evidence was given on the part of the defendants; but certain statements, made by their counsel, were admitted to be true, viz.: That there were other subscribers besides the defendants; that several of the defendants were not present at the meeting when thb plaintiff was appointed agent; and that the defendants were not all of them petitioners to the legislature for the charter, .but were all subscribers for the bank, and would have been members of the corporation, had the législature seen fit to grant, the charter. It was also stated, and not denied, that some of the defendants did not know of Mr. Spr'oat’s employment, until after the failure of the application to the legislature; but the subscription was completed, and meetings were held, and their proceedings were recorded before the appointment of Mr. Sproat. Several meetings were called, of those who had associated, to settle with Mr. Sproat, at which meetings there was some dispute about the amount of his charge ; but it was not proved that the defendants were present.</p> <p>The judge observed to the jury, that those who associated for the purpose of establishing a bank must have contemplated an application to the legislature; that the attention of some of the associates, or of some person in their behalf, to state their claims before a committee of the General Court, was usual, if not necessary ; that the act of a part of the associates, in employing the plaintiff, might be presumed to be assented to by all who did not expressly dissent; and that, under the foregoing circumstances, there was an implied promise of all to pay those * expenses which should necessarily arise in the prosecutian of their enterprise.</p> <p>Under this opinion of the judge, a verdict was taken for the plaintiff by consent; which was to stand, and judgment be rendered thereon, unless the Court should be of opinion that the facts reported did not warrant the verdict, in which case the verdict was to be set aside, and the plaintiff become nonsuit; the objections on the part of the defendants being, that those who were proved to have been present when the agent was appointed were alone liable for his compensation; that there was no express promise, nor any consideration for an implied one; and that the subscription was only an engagement to take shares, and could not be construed into a promise to pay expenses.</p> <p>The action was called up at this term, and continued nisi, to be argued at Taunton, next week ; [the Chief Justice observing to the defendant’s counsel, that the only question in the case was, whether, when a number of persons associate for a specific purpose, they are not to be understood as engaging to pay the necessary expenses incurred in endeavors to effect the purpose, according to their respective interests in the association;] when</p>

This was an action of debt on a bond, conditioned to perform certain articles of agreement of the same date with the bond.

<p>Tenant in fee executes and acknowledges a conveyance of land to his son, without the privity of the son, .and delivers it to a third person, to be kept until the grantor’s death, and then to be delivered over to the grantee, which was done accordingly ; and it, was holden that, whether the writing was to be considered as an escrow or as a deed, at the time of such delivery, it was to be considered as then effectually delivered to the use and benefit of the grantee he having received the deed, and claimed the granted premises under it, after the grantor’s death.</p> <p>Written executory contracts are vacated by a material alteration, and possibly by an immaterial one, made by the person claiming under such contracts; but this strictness is not applied to conveyances of real estate, which has vested in the grantee by a change of possession, the title to which is not destroyed by the loss or destruction of the deed itself.</p>

<p>The original suit, upon which the judgment sought to be reversed ' by the writ of error in this.case was rendered, was brought by the defendant in error, as clerk of a company of militia, against the plaintiff in error, a private in the same company, to recover a fine for disobedience of orders, and was commenced before a justice of the peace, and thence carried by appeal to the Circuit Court of Common Pleas, holden in this county in April last, where judgment was rendered for the original complainant.</p> <p>It appeared by a bill of exceptions allowed and sealed by the Chief Justice of the Circuit Court, that the complainant produced evidence of his appointment to the office of clerk, and of his having officiated as such for * several years; but he produced no record of his having been sworn. To establish this latter fact, he offered as a witness a justice of the peace, who testified that he could not positively affirm that he ever administered an oath to the complainant as clerk, though he had some faint recollection of having done it; but that he had made no record of such oath. Two other persons testified that they were present when the said justice administered the said oath.. The counsel for the respondent objected to the admission of the said testimony, insisting that the' only competent evidence of the fact was the certificate of the justice’s record. But the court overruled the objection, and admitted the testimony; and, the respondent’s disobedience of orders being admitted, instructed the jury that the complainant had proved himself duly qualified as clerk, and directed them to find a verdict in his favor, which they did accordingly, and judgment was rendered thereon.</p>

<p>Case upon the following note, viz.: “New Bedford, April 19, 1806. For value received, I promise to pay William, White, or order, the sum of two hundred and fifty dollars on demand, with interest till paid. As witness my hand, Nathan Taber.” On the back of the note was the following endorsement, viz.: “ April 19, 1806. For value received, we, jointly and severally, undertake to pay the money within mentioned to the said William White.” “ Signed, John Coggeshall, Jun., John H. Howland.”</p> <p>The declaration contained several counts, one of which was as upon a promissory note signed by the defendant alone.</p> <p>The action was tried upon the general issue of non assumpsit, before Parker, J., at the sittings here after the last October term.</p> <p>It was proved, at the trial, that the amount specified in the note was advanced, on loan, by the plaintiff to Taber, * on his agreeing to give his note, with two endorsers ; that the note in suit was made with that intent, but was by mistake made payable to White, instead of Coggeshall, the first endorser ; that the defendant objected to putting his name on the note, because it was not properly drawn as an endorsed note, and because no time of payment was limited, but that he nevertheless put his name upon it.</p> <p>The defendant contended that he ought to be treated as the endorser of a negotiable note ; and that, as there was no evidence of a seasonable demand on Taber, and of notice to him, he was not by law holden. These objections were overruled by the judge ; but he reserved the question, as also whether, upon either of the counts, the verdict, which was for the plaintiff, could be maintained. Taber, the promisor, was solvent at the date of the note, and continued so until March, 1810, when he failed, and has since been insolvent.</p>

<p>Error upon a judgment of the Common Pleas for this county, rendered December, 1808, between the sáme parties.</p> <p>In the original action, the plaintiff in error demanded payment of a promissory note made to him by Abijah Hodges, the defendant’s testator, for 270Z. lawful money.</p> <p>In that action, a rule was entered into by the parties, referring the said action and all demands to the determination of three referees, and agreeing that final judgment should be entered upon the report of the three, or of any two of them.</p> <p>The referees reported that they had notified, met, and heard the parties to the rule, and had fully considered their several pleas and allegations on the subject matter thereof; and thereupon they awarded that the plaintiff had not supported the demand made by him ; and that the said William, in his said capacity, should recover the costs incurred in the reference, but no costs of Court. The report was accepted by the Court, and judgment rendered accordingly</p> <p>There came up, in the case, an account of the defendant’s testator against the plaintiff, which had been duly filed in the action by the defendant, pursuant to law. •</p> <p>The defendant pleaded in nullo est erratum.</p>

<p>Assumpsit for the amount of sundry assessments made on the shares of the said turnpike, for which the defendant subscribed.</p> <p>The defendant, at the return term of the writ in the court below, filed the following plea, viz.: And now comes the said W.P. W., in his own proper person, and defends, &c., when and where, &c., and prays judgment of the plaintiffs’ writ; because he says that, the said action is a personal and transitory action; and at the time of the purchase and service of said writ, or at any time before, the defendant did not live in said county of Bristol ;■ and the said plaintiffs, at the time of the purchase and service of said writ, and long before, were a corporation in- fact and in name within this commonwealth, but had no domicile in said county of Bristol; and that he, the said W. P. W., at the time of the purchase and service of said writ, and long before, lived, and still lives, in Boston, within the county of Suffolk, in said commonwealth ; wherefore the plaintiffs, if they had any good cause of personal or transitory action against him, the said W. P. W., ought to have brought the same to the Court of Common Pleas within.and for said county of Suffolk, and not to the Court of Common Pleas within and for said county of Bristol; and this the said W. P. W. is ready to verify; wherefore, & c.</p> <p>* To this plea the plaintiffs demurred, and assigned for causes of demurrer, 1. That the defendant hath made full, instead of half defence, and thereby admitted the jurisdiction of the Court. 2. That A, B, C, and others, are members of said corporation, and live within the county of Bristol. The defendant joined the demurrer.</p> <p>At the last term, Tillinghast, for the plaintiffs, insisted that the case at bar was not within the provision of the statute of 1784, c. 28, § 13, on which the defendant’s plea was predicated. But, if it was, the corporation was established within this county, and most of the corporators were inhabitants thereof. The action was well brought, therefore, in this county.</p>

<p>This was a writ of certiorari issued at the suit of the respondent, directed to a justice of the peace for this county, commanding him to certify the proceedings before him in a cause wherein James Goff was complainant, and the said Bliss was respondent.</p> <p>*Upon the return of the writ, it appeared that Goff, as clerk of a company of militia, had complained against Bliss, as a private in the same company, for neglecting to attend a muster of the company on the 16th of September, 1808. The justice issued his summons for Bliss's appearance at a day and place appointed.</p> <p>The respondent pleaded, 1. The general issue of not guilty, which was joined by th.e complainant. 2. In bar, that having become, by misfortune, disabled and infirm in body, he obtained from the surgeon of the regiment to which the said company belonged, a certificate as follows, addressed to the captain of the company: “ Mr. Cromwell Bliss, a soldier in your company, by a. wound in his left hand, has his thumb and fingers rendered useless thereby, and is unable to perform military exercise. Rehoboth, May 5, 1807.” And that on the same day the captain of the company discharged him from doing military duty in the company the full length of time expressed or implied in the certificate, that is to say, for life, by endorsing his name on the said certificate, which was afterwards approved by the commanding officer of the regiment; by force of all which the said Bliss was, and still is, discharged, &c.; and this, &c.; wherefore, &c.</p> <p>The complaint replied that Isaac Fowler, who signed the said certificate, was not then the surgeon of the said regiment, upon which issue was joined.</p> <p>After hearing the cause, and adjourning his court to another day for consideration, the justice found that Bliss was, on the day charged in the complaint, a private soldier, as set forth in the complaint, and liable to do military duty in the said company, and that he did unnecessarily neglect to appear, &c., and thereupon sentenced him to pay a fine and'costs.</p> <p>At the last term, Tillinghast, for the respondent, contended that the proceedings should be quashed. Here were two issues joined in good form. Neither of them are found, but other matters foreign to them both; and upon these foreign matters the justice rendered judgment.</p>

<p>This was an action of the case by the plaintiff, as collector of taxes for the town of Taunton, to recover the amount of sundry state, county, town, and parish taxes assessed upon the defendant’s testator before his decease. The action is given by the statute of 1789, c. 4. And the only question referred to the Court was, whether the plaintiff was entitled to interest on the amount of the several taxes, from the time they were respectively due and payable.</p>

The judgment, which the writ of error in this case' was brought to reverse, was rendered by the Court of Common Pleas for this county, September term, 1810, in an action of trespass, wherein the defendant in error was plaintiff, and the plaintiffs in error were defendants.

<p>In a writ of entry sur disseisin, the demandant counts upon his own seisin of the demanded premises within six years, and upon a disseisin by the tenant.</p> <p>The tenant pleads in bar, that the demandant had not, at the date of his writ, any right to the demanded premises, except by two deeds, the one dated the 8th of November, 1806, being a mortgage of the demanded premises, as a collateral security for the payment of 700 dollars with interest; and the other a quitclaim of the same premises, for the consideration of 1200 dollars, expressed * therein, which is dated the 10th of September, 1810 ; and that in the said sum mentioned in the mortgage deed, for securing the payment of which the said deed was given, is contained,—by a corrupt and usurious contract, made by the demandant with the tenant, for the delay of payment of the sum actually received, — more than after the rate of six per cent., viz., at the rate of ten per cent.; and this he is ready here in Court to ver ify by his oath ; wherefore he prays judgment if the demandant his action against him ought to have by virtue of said deed of mortgage.</p> <p>And further he saith that the demandant his action aforesaid on account of, or by virtue of the said quitclaim deed, ought not to have, &c., because he says that in the consideration mentioned in said deed there is contained money, which accrued by a corrupt and usurious contract, made by the demandant with the tenant, by which was secured to be paid, and which is actually contained in said consideration, for the forbearance of the payment of the sum originally lent, more than after the rate of six per cent. <fcc., as before ; and tenders his oath, and prays judgment if the demandant ought to have and maintain his action by virtue of said deed of quitclaim. To each of- these answers the demandant replies, that he ought not to be precluded, &c., because he says that the evidence offered therein to support die fac .s alleged therein is insufficient to prove the said facts, and that the said pleas are severally, in other respects, insufficient and informal; to which he is not bound by the law of the land to answer ; — wheieiore he prays judgment, &c.</p> <p>The tenant rejoins that his pleas are severally good, and the evidence offered sufficient in law for the purpose of proving the facts alleged ; and forasmuch as the demandant has not denied that such evidence will be given, but only denied its sufficiency, he prays judgment.</p>

The plaintiffs in error brought their writ, in this case, to reverse a judgment which the defendant in error, as treasurer of the Norfolk and Bristol Turnpike Corporation, recovered against them at the Circuit Court of Common Pleas holden for this county, December, 1811 The- original action, which was commenced before a justice of the peace for this county, was trespass, “ for that, by an act of this commonwealth, entitled an act establishing the Norfolk and Bristol Turnpike…

<p>This action was assumpsit against the defendant, as endorser of a note made by George Jackson, dated the 12th of February, 1810, by which he promised to pay the defendant, or his order, 358 dollars 44 cents in eight months after date. The plaintiff avers in the declaration, that the note fell due on the 13th of October, 1810, and that a demand was made on the maker of the note, and notice given to the defendant on that day.</p> <p>The cause was tried on the general issue, before Thatcher, J., at the last March term in this county; and a verdict found for the plaintiff, subject to the opinion of the Court on the evidence as reported by the judge.</p> <p>It appeared that on the 12th of October a written notification, in which it was stated that the note had fallen due and was unpaid, was left at the dwelling-house of the defendant; but the witness who was the bearer of the notification, did not carry the note with him to the defendant’s house, to receive payment thereof. Three days afterwards, the same witness had a conversation with the defendant, who admitted that he considered himself liable by reason of said notice, and stated that the maker of the note had informed him that payment had been duly demanded of him. It was m evidence that the defendant had taken from the maker of the note, after it fell due, an assignment of a suit then pending against one Hunneman, to indemnify him for his liability on the note ■ declared on in this case; but he had not yet derived any benefit from that assignment, the said suit being still pending at the time of the trial. It was also proved that the defendant had received part of the rent of a house belonging to Jackson, towards his indemnity for the said endorsement.</p> <p>When the cause was called up at this term, the counsel for the defendant was not present, but</p>

Case, “ for that the said Aaron, at, &e., on, &c., by his note under his hand of that date, for value received in a debt due to the estate of Ephraim Pollard, deceased, promised John Hartwell and Mary Pollard, executors of the last will of said Ephraim.

<p>W Hare the treasurer of a turnpike corporation gave his notes in that capacity for the proper debt of the corporation, it was holden that he was not personally noble.</p>

This was an action of debt on a bond dated March 17, 180], made to the plaintiff as judge of probate for the county of Suffolk, by the defendant as administrator de bonis non, with a copy of the last will of Thomas Boylston, late of London, &c., annexed, pursuant to the statute of 1785, c. 12. The action was prosecuted for the benefit of the inhabitants of the town of Boston, named as residuary legatees in the said last will.

The action was debt on a bond given to obtain the liberty of the yard for William Dane, then a prisoner in the jail in Concord in this county. Issue was taken on the question, whether he did or did not escape. This issue was tried at the sittings here after October term, 1809, when a verdict was found for the plaintiff, subject to the opinion of the Court on the following case stated by the parties.

<p>The plea of alienage, not being an alien enemy, in a real action, is only in abatement, to the disability of the demandant to sue.</p> <p>Escheats arise by our laws but in two cases — one where an alien purchases lands; the other where a citizen dies intestate, and without heirs. The widow of the former is not entitled to her dower.</p> <p>The widows of the persons denominated conspirators, &c., in the act of this government, passed April 30, 1779, are not, by force of that act, deprived of their right of dower in the estates of their husbands confiscated.</p>

This was a petition for partition of certain lands, in which the petitioners each claim to be seised in common and undivided of one seventh part, with other persons to them unknown. Upon general notice having been given in manner required by law, Samuel Reed came in, claimed to be sole seised during the life of Hannah Reed, and traversed the seisin of the petitioners.

Entry sur disseisin. The demandant counted on his own seisin within thirty years, and until disseised by * the tenant, who pleaded the general issue, which was joined. The cause was tried before the Chief Justice, at the sittings here after the last October term, and a verdict taken for the tenant, subject to the opinion of the Court upon the following question stated in the report of the Chief Justice.

Debt on a bond given by the defendants, conditioned, in the form prescribed by the statute, for the defendant Pitts’s faithful administration, as executor of the last will of Samuel Pitts, deceased. The action was brought for the benefit of Mary Pitts, the testator’s widow, for the arrears of an annuity of 300 dollars, which she claims under her husband’s will.

This ivas a writ of entry in the quibus, in which the demandant counted upon his own seisin of lands in Townsend, * in this county, within thirty years, and upon a disseisin within that time by the tenant.

Replevin for sundry chattels mentioned in the writ. The defendants pleaded property in Samuel Etheridge, and not in the plaintiffs. The plaintiffs replied property in themselves, on which issue was joined to the country. This issue was tried before the Chief Justice, at the sittings here after the last October term.

This was an appeal from a decree of the judge of probate for this county, allowing the administration account of the respondent, as he was executor of the last will of Jonathan Porter, deceased. The appeal was claimed and made by Downing in right of his wife, whom he alleges to have been a daughter and heiress of Jabez Porter, deceased, intestate, who was a son and residuary legatee and devisee of the said Jonathan Porter.

The defendant was indicted, October term, 1810, for assaulting and beating one Lucy Holman, and administering to her a certain dangerous and deleterious drought or potion, against her will, with intent to procure the abortion and premature birth of a bastard child, of which she was then pregnant, and which the defendant had before that time begotten of her body, et alla enormia, &c., to the great damage of the said Lucy, against good morals and good manners, in evil example…

<p>The inhabitants of the town of Cambridge piusented a petition, stating that at the Court of Common Pleas for this county, holden in December, 1809, upon a petition of the said inhabitants, complaining of the report of a committee before that time appointed to locate a way in said town, and particularly of the damages awarded by the said committee to Andrew Cragie, an owner of the land over which tne said way passed, and praying that a jury might be summoned according to law, to determine whether the said Andrew had sustained any damages, and, if any, to what amount, by the locating of said way;—such proceedings were had thereon that a jury was empanelled, and at the June term, 1811, of said Court of Common Pleas, returned a verdict that the said Andrew had sustained no * damage thereby ; that the said Common Pleas refused to accept and record said verdict, and ordered it to be set aside ; whereat the said inhabitants being aggrieved, they pray that a writ of mandamus may issue to the justices of the Court of Sessions for this county, to whom the jurisdiction of the said Court of Common Pleas in this regard had been transferred, commanding the said justices to accept and record the said verdict.</p> <p>Notice having been ordered to the said Andrew Cragie to appear and show cause, <fcc., Bigelow, on his behalf, suggested several objections to the receiving the verdict, one of which was, that the coroner, who had been commanded to empanel the jury, had summoned fourteen jurors, instead of twelve. Another objection was, that the jury had exceeded their powers in awarding that Mr. Cragie was entitled to no damages, whereas they had authority only to reduce the damages reported by the committee, if they found them excessive.</p>

<p>A conveyance of land from a fattier to his son ten years of age, for the consideration of natural affection, the father at the time having other real estate sufficient to support himself and family, and not being encumbered with debt, and also continuing with the son in the occupation of the land, was held good against a creditor who had levied an execution on the same as the father’s estate, the creditor having had notice of the conveyance before the father became indebted, at which time this latter had no title to any other lands than those so conveyed.</p>

This was an action of the case against the defendant, as sheriff of the county of Middlesex, for a false return of an execution by' one of his deputies.

<p>Lands descending in another state are not assets in this commonwealth, by which tile heir of a covenantor may be here charged.</p>

<p>Where one, indicted for a larceny, stood mute upon his arraignment, a jury was empanelled, who returned their verdict that he stood mute fraudulently, wilful *y, and obstinately; whereupon he was sentenced as upon a conviction.</p>

Assumpsit for services rendered. 1st count, Indebitatus according to the account annexed to the writ. 2d count, Quantum meruit. At the trial of the action, which was had upon the general issue, before Sewall, J., at the sittings here after the last November term; the plaintiff relied on the deposition of John Proctor; an objection to his competency as a witness in this cause having been overruled.

Assumpsit for 1600 dollars, money had and received by the defendants to the use of the plaintiff.

Assumpsit for the support of Samuel Reed, a pauper, with averments that his legal settlement was in Boothbay ; that the overseers of the poor there were notified, &c. At the trial of the action, which was had upon the general issue, at the sittings here after the last November term, before Sewall, J., the pauper was proved to be the son of John Reed by his wife Mary, since Mary Knowlton, her deposition being admitted in evidence, and her marriage with John Reed being fully…

Indictment for a conspiracy, with others unknown, to compel one James W. Stearns to an unjust settlement of his accounts with said Davis, and to alter the nature and condition of an agreement between them, which was, that Stearns should find all the stock for a brewery, that Davis should afford his labor for five years from 1809, and that they should divide the net profits equally.

The indictment charged that the defendant, being admitted as a legal voter at the town meeting holden on the 11th day of March, 1811, at Salem, for the choice of town officers, “ did then and there wilfully, fraudulently, knowingly, and designedly give in more than one vote for the choice of selectmen for said town of Salem, at one time of ballotting, — to the great destruction of the freedom of elections, to the great prejudice of the rights of the other qualified voters in…

<p>A devise in fee was “to the inhabitants of the second parish in B., confining it only to the use of the inhabitants of said B.” In fact, the said parish included certain inhabitants of A. It was holden that the parish could not take, because part of its inhabitants were not inhabitants of B., and that the other inhabitants could not take, not being a corporation; nor could they take as tenants in common. The heir at law was therefore entitled to hold, until some one could make a title under the will.</p>

This was a bill in equity, brought to redeem certain tenements mortgaged by the plaintiff to the defendant’s testator. The death of the plaintiff being suggested on the record, Putnam moved that her* executor might be admitted to prosecute the suit.

This was a libel for a divorce a vinculo, for the cause of adultery, and having been duly filed in the clerk’s office, a summons had issued, which an officer returned that he had served by reading the libel and summons to the said Elizabeth.

Assumpsit by the plaintiff, as endorsee of a promissory note for 500.dollars, dated December 1, 1808, subscribed by the defendant, payable in sixty-five days to Joseph Obrien or order, and by him endorsed to the plaintiff.

Replevin for seventy-six bags of coffee, containing 8991 pounds. The defendant pleaded property in Timothy Wellman and Benjamin Hopes, and avows the taking, &c., on the 4th of June, 1810, as a deputy sheriff, &c., by virtue of a writ of attachment, at the suit, of Gamaliel Hodges against the said Wellman 8f Hopes.

Trover for sundiy goods, wares, and merchandise. Upon the general issue of not guilty pleaded and joined, a trial being had before Sewall, J., at the sittings here after the last November term, the defendants filed their bill of exceptions, at common law, to the opinion and direction of the judge who sat in the trial.

This was an action of the case upon a policy of insurance, for a total loss by capture, and a previous partial loss by stranding. The policy was in the common form, and against the usual risks, including capture, detention, &c. It was dated March 2, 1805.

This was a writ of entry sur disseisin, in which the demandant counts upon the seisin of Anne Martin, his grandmother, within fifty years, and upon a disseisin by Richard Cranch and others.

<p>This was an action of debt upon a judgment recovered, in the Superior Court of Judicature, in the state of New Hampshire, by the present plaintiff against the defendant, and one Joseph Gair. since deceased.</p> <p>The defendant pleaded two several pleas, nil debet, and not guilty. On both these pleas issue was joined to the country.</p> <p>The trial of these issues came on before the Chief Justice, November term, 1811, when the plaintiff produced in evidence a record of the judgment declared on, authenticated as is required by the statute of the United States, 1 Cong. Sess. 2, c. 11.</p> <p>From the record produced, it appeared * that the original action was trespass de bonis asportatis; that the plaintiff was an inhabitant of New Hampshire, and that the defendants were inhabitants of Massachusetts; that the defendants being in the state of New Hampshire, the original writ was served on them personally ; that they appeared, took on themselves the defence of the suit, and pleaded to the action; and that judgment was rendered for the plaintiff, as he has alleged in his declaration. On this evidence the plaintiff rested his cause, insisting that the judgment was in this case conclusive.</p> <p>The defendant insisted that it was competent for him to impeach the judgment, by evidence proving that the plaintiff ought not to have recovered judgment for any damages ; or, if he was entitled to any damages, yet that too great damages had been assessed against him and the deceased Gair.</p> <p>The cause was then taken from the jury, and the parties agreed to submit the question thus raised to the opinion of the whole Court; and if the Court should be of opinion that the said judgment was conclusive, so that the defendant could not be admitted to show that nothing ought to have been recovered against him and Gair in the former action, or that the damages assessed therein were too great, the defendant agreed that judgment should be rendered against him by default, for the damages recovered in the former action, with interest thereon; otherwise a trial was to be had on the merits of the demand.</p> <p>The cause was argued under this agreement, at the last March term in this county, by Dexter for the plaintiff, and Bigelow for the defendant; and afterwards, in the same term, judgment was pronounced as follows by</p>

<p>The sheriff is guilty of a neglect of his duty in accepting one surety on a bail bond in a civil action, although such surety be of large fortune, and in good credit, at the time of executing the bond; and in case of his failure to satisfy the judgment on scire facias, the sheriff is answerable for the consequent damages suffered by the plaintiff.</p>

Action on the case against the defendants, as printers of a public newspaper in Boston, to recover damages for the incorrect printing of an advertisement, relative to the sale of an equity of redemption, upon which the plaintiff, as a deputy sheriff, had levied an execution in favor of one Coolidge; by reason of which the levy failed, and' the plaintiff had been compelled, by a suit at law, to pay a part of the amount of the execution to the creditor.

This was a writ of scire facias, brought to recover the costs of an action heretofore prosecuted by Mr. Heard, in his said capacity, against the now plaintiff. The former action was referred, together with all demands between the parties, by a rule of the court, to certain referees, who awarded to Amblard a small sum as debt or damage, and the costs of reference and of court.

Giles Lodge was summoned as the trustee of William, Naylor, John Summers, and Robert Milton, defendants in the action, who were merchants and copartners, doing business at Leeds, in Great Britain, under the firm of Naylor, Summers, Sf Milton.

Covenant broken, upon an indenture of two parts, wherein the defendant, “ as superintendent or agent of the Massachusetts state prison,” covenanted to furnish the plaintiff with a number of convicts, from 20 to 40, for one year from the date, for the purpose of employing them in the business of plating and harness-making, or the manufactory of such other articles as the defendant might find profitable, and to furnish stock as it might be wanted monthly, and to provide tools,…

<p>On an indictment for adultery, the marriage of the party charged may be provea by the testimony of witnesses present: a copy of the record of such marriage is not required.</p>

<p>Upon a trial for robbery, the jury, after being long out, returned into Court, not having agreed on a verdict, and saying that it was not probable they ever could agree; a juror was withdrawn without the prisoner’s consent, and the jury being discharged, he was afterwards tried and convicted by another jury, and it was holden a good conviction.</p>

Covenant broken, on a bill of sale of a sloop and appurtenances, with the usual covenants of warranty.

Assumpsit to recover the balance of an account. The counts in the declaration were indebitatus assumpsit on the accounts annexed, and the common money counts. The controversy between the parties arose from a charge in that account, of the 2d of May, 1801, of 650Z. sterling, as a remittance to pay a bill of exchange of like amount, drawn by Hicks if Post, of New York, the defendant’s agents, upon the plaintiffs, merchants in Dublin.

This was an action of formedon in remainder, in which James Freeman as rector, and Ebenezer Oliver and Joseph May as wardens, of King’s Chapel, demanded against William Pelham a certain messuage and land in Boston.

This was a petition for partition of certain lands in Boston, on which a verdict was taken for the petitioner, at the last March term in this county, subject to the opinion of the Court upon the following point, viz.: — Francis Wells, being seised of the lands in question, devised all his real estate to his wife, Susannah, for her life, remainder to the petitioner and others, and died in 1766.

<p>This was an action of assumpsit, in which the plaintiffs set forth ■ an indenture of a lease for six years, made on the 18th of January, 1809, by one Andrew Dexter, Jun., to William, Hamilton, of a certain messuage in Boston, called the Exchange Coffee-House, and sundry articles of furniture, and other personal property ;—another indenture between the same parties, made on the 5th of May following, making some alterations in the rent reserved, and the mode of payment; — an indenture made on the 6th of the same May, between the said Dexter and one George Odiorne, by which the said Dexter assigned to the said Odiorne the rents reserved in the said lease, with a power of attorney to receive the same in trust, to pay the several sums due from the said Dexter tb certain of his creditors therein named, and with condition to be void as soon as the said Odiorne should receive a sum sufficient to pay those debts ; — another indenture, of four parts, made on the 23d of June following, between the plaintiffs and the said Dexter, Odiorne, and Hamilton, by which all the three last-named parties assigned all their respective interests in the said premises to the plaintiffs, and the said Dexter also made certain covenants with the plaintiffs, and for their benefit, which are set forth, and by which same indenture the plaintiffs covenanted with the said Odiorne to pay him 12,500 dollars in one year, and another like sum in two years, with interest, in trust for the before-mentioned creditors of the said Dexter. The plaintiffs then allege that, on the 4th of September in the same year, in consideration that they, by their deed poll of that date, assigned and conveyed to the defendants the last-mentioned indenture, which was annexed to the deed poll, and all the said furniture and personal property, and the residue of said term, with all the rights and interests created, or secured to the * plaintiffs, by the same indenture, the defendants promised the plaintiffs to pay the said Odiorne the said two sums of 12,500 dollars each, and interest, in manner above mentioned, and to do every thing which the plaintiffs were bound to do by force of said indenture, in like manner as if they, the defendants, had been originally parties thereto in the place and stead of the plaintiffs.</p> <p>The cause was tried upon the general issue, at the last November term in this county, before the Chief Justice; and, at the trial, the plaintiffs offered to prove the several deeds set forth in the declaration, which evidence was objected to by the defendants, but admitted by the judge, and the said deeds were accordingly read to the jury. It was admitted that the defendants took possession of the premises, in virtue of the said conveyance made to them on the 4th of September. The plaintiffs contended that this evidence was sufficient to prove the promise set forth in the declaration ; but they further offered two depositions of one E. Centre, to prove an express agreement of the defendants to the same effect; which evidence was objected to by the defendants, and rejected by the judge.</p> <p>The defendants offered in evidence a deed of release from said Dexter to said Goodwin, dated August 7, 1809, and a deed of release from said Goodwin to the defendants, dated November 18, 1809, both which were read to the jury.</p> <p>A verdict was taken for the defendants, subject to the opinion of the Court; and if the Court should be of opinion that the said evidence, consisting of the deeds aforesaid, produced by the plaintiffs, was admissible, and that this, together with the possession taken by the defendants, was competent to maintain the issue on the part of the plaintiffs, the verdict was to be set aside, and a verdict entered for the plaintiffs for the sum of 15,109 dollars; otherwise, the verdict was to stand, and judgment be entered accordingly; unless the Court should be of opinion that the said two depositions of E. Centre, offered by the * plaintiffs, were improperly rejected on the trial; in which latter case the verdict was to be set aside, and a new trial granted.</p> <p>The cause was argued by Dexter and Jackson for the plaintiffs, and by Otis and Sullivan for the defendants.</p>

<p>An estate is conveyed by indenture to A and his heirs, to the use of B, the wife of C, for life, remainder to C for life, remainder to “the joint heirs of the body of B and C, by them lawfully begotten; ” and the estate so limited- to B is declared to be in trust, that, in case of the insolvency of C, it should not be liable for his debts. It was hoi den that this was an estate in special fee tail in B and C, and that their eldest son was entitled after their death, exclusively of their other children.</p> <p>Nothing passes by the conveyance of land, of which the grantor is only heir apparent</p>

<p>The original action was trover, in which the present defendants in review were plaintiffs, and recovered judgment against Otis, who gave bond, according to the statute, and sued out his writ of review. After the service of the writ of review, and before its return, the plaintiff in review died. At the return term, William Otis, his administrator, suggested the death on the record, and moved to be admitted to prosecute the review; and the statute of 1788, c. 47, >§> 3, was relied on in support of the motion, which was granted, the defendants in review not opposing.</p>

<p>A recognizance must recite the cause of its caption.</p> <p>A scire facias can only issue from a Court in possession of the record upon which it issues.</p>

<p>The declaration in this case was in debt, for that, as the plaintiffs aver, on the 8th of June, 1807, there was, and for many years before that time there had been, a trade and traffic carried on, by merchants dwelling in Boston and elsewhere, to the north-west coast of America, with the natives there, who are uncivilized or savage tribes, to buy sea-otter, land-otter, and beaver skins, and to carry them to China, to merchandise and make profit of; that the said trade is limited- as to the number of such skins, which amount, on an average, to nine thousand skins annually, and which are sufficient only to load, with reasonable expectation of profit, six vessels at most; and that the profits in said traffic depend upon the number of vessels sent to said coast, to be supplied with cargoes therefrom to China aforesaid. The plaintiffs further aver that they, and also the said Theodore, had been such merchants trading to the northwest coast of America; and that said trade can be carried on advantageously by those only who have experience therein, and who have information from year to year of the state of demand on said coast, by the natives there, for the articles, goods, and merchandise, which it is the object * of said trade to exchange with them for the skins aforesaid; — that the profits of said trade are dependent upon such experience and information, and upon the amount of capital which any merchant has power to employ therein; that the defendant was then and there a merchant of great experience and accurate information in said traffic, and was able to employ a very great capital therein ; and the plaintiffs were then and there desirous of having the defendant withdraw himself and his capital from said traffic, and the defendant was also desirous of withdrawing himself therefrom, on being compensated to his satisfaction for the property which he then had with intention to employ the same in said traffic, and on effecting the sale of said property at prices by him fixed and limited; and, to this end, was desirous of disposing of a certain ship called the Vancouver, and her appurtenances, which had been by him employed in said traffic, and also of a quantity of merchandise and provisions, which he had prepared, and had intended to use in the prosecution of a voyage to said coast; and the defendant then and there proposed to the plaintiffs to purchase of him the said ship and appurtenances at a certain sum of money by him fixed and limited, viz., the sum of 8000 dollars; and to purchase the said merchandise and provisions at a certain advance and price also by him fixed and limited ; so that the defendant might withdraw himself and his property from the prosecution of the adventure and voyage which he had intended; he then and there proposed to the plaintiffs that, if they would purchase, as aforesaid, said ship, merchandise, and provisions, he would not, directly or indirectly, make any further adventure to the said coast for the term of seven years; and the plaintiffs aver that they did purchase of the defendant the said ship and appurtenances, and the said merchandise and provisions; and the defendant, having so agreed to sell to the plaintiffs the said ship, &c., and being enabled to withdraw himself from said traffic as to the said ship Vancouver, and having also agreed with the * plaintiffs that he would not, in his own name, or in the name of any other person for him, directly or indirectly, be interested" in any voyage to the said coast, or in any adventure to that coast, or any species of traffic with the natives of that country, for the term of seven years from the said 8th of June, the said parties then and there made a memorandum in writing, between the plaintiffs of the one part, and the defendant of the other part, which was sealed with the seal of the defendant, and by him duly executed and delivered, and which the plaintiffs bring into Court, the date whereof is the day and year aforesaid ; and by which writing, made as aforesaid, it is expressed that the plaintiffs agreed with the defendant to buy of him the said ship, then lying in the harbor of Boston, and to pay therefor, in one year from said date, 8000 dollars; and the defendant, in and by said memorandum, in consideration of having received the promissory note of the plaintiffs, payable to him in one year, covenanted and agreed with the plaintiffs that, provided they should pay the said sum when it should fall due, according to the tenor of said note, he would not, in his own name or in the name of any other person for him, be directly or indirectly interested in any voyage to the said coast, or in any species of traffic with the natives of that country, for the term of seven years from the day aforesaid ; and bound himself, his heirs, &c., in the penal sum of 8000 dollars. And the plaintiffs aver that they did well and truly pay to the defendant the sum due by their said promissory note, when the same became due ; and that, after the making of said agreement in writing as aforesaid, and within seven years from the date thereof, and after the payment of the said sum as aforesaid, the defendant, at said Boston, on the 16th day of March, 1809, regardless of his said covenants with the plaintiffs, was interested and concerned in a voyage or adventure to the said coast, and was then and there owner of a certain _ ship or vessel called the Hamilton, then lying in the harbor of Boston, and had there, on the said 16th of March, loaded with a cargo, and * fitted out the said ship Hamilton, for a voyage to the said coast; and that the said ship did sail, within the said month of March, for the said coast, properly laden, fitted, and prepared, for a trading voyage thereto; the defendant being sole owner of said ship and cargo until about the time of her departure, and interested therein after her departure; and so continued to be interested until he sold and disposed thereof to great profit and advantage to himself; and the plaintiffs further aver that the said ship did proceed to the said coast, and the cargo laden on board her was afterwards, on the 1 st day of May last, used and employed in trade and traffic with the natives of the said coast. And so the said Theodore his covenant with the plaintiffs has not kept, but hath broken the same; by means of all which an action hath accrued to the plaintiffs to demand and have of the said Theodore the aforesaid sum of 8000 dollars. Yet, though requested, &c.</p> <p>The defendant, besides two pleas in bar, which resulted in issue to the country, pleaded,</p> <p>First. That although he, on, &c., was the owner of the ship Hamilton, and the same was laden with a cargo and fitted out for a voyage to the north-west coast of America, by one George Lyman, son of the defendant, with funds supplied in part by the defendant upon credit, and with his knowledge and consent, but on the sole account of said George; and with the intent that, before the departure of the said ship on the said voyage, she should be sold and conveyed to the said George for a good and valuable consideration, and that he, the said George, might sell and dispose of a part of said ship and cargo to some other person or persons; and that, until such sale should be effected, the whole fitting out and preparing for said voyage, and the adventure to said coast, and the</p> <p>trade and traffic there, should be done and carried on by the said George, for his account and profit, and afterwards for the account and profit of the said George and such other person or persons, other than the defendant, as might become purchasers * thereof. Of all which the plaintiffs, during the time of the fitting out and preparing for said voyage, had due notice, as well from the defendant as from the said George. And the defendant avers that, during the time of said fitting and preparation, a conversation and treaty were had and carried on between the said George and the defendant in behalf of said George, on one part, arid the plaintiffs on the other part, in which it was proposed to the plaintiffs that they should become purchasers of the said ship and cargo, and interested in the said voyage and adventure to the said coast. And protesting that the said ship and cargo, or any part thereof, or of either of them, at the time of her said departure, or at any time afterwards during said voyage and traffic, were not owned by him ; and that he was not, in his own name, or in the name of any other person, directly or indirectly interested therein, nor in said adventure, nor any species of. traffic, otherwise than as a father and creditor of said George. Nevertheless, the defendant further says that, after the departure of the said ship and cargo, in the declaration mentioned, upon the said voyage, and long before the arrival óf the same on the said coast, the treaty aforesaid, which had been carried on as aforesaid, was completed; and the plaintiffs purchased from said George a part of the said ship and cargo on board the same, and thus became part-owners thereof, and so continued to be during the whole of the said voyage ; and fhat the prosecution of said voyage, and the using and employing of the said vessel in said trade and traffic, were by the license and command of the plaintiffs, and for their benefit and profit, as part-owners of the same.</p> <p>To this plea the plaintiffs replied, (protesting that the said ship was not fitted out with intent to be sold, &c.; that they had no notice of such fitting out with intent, &c.; that a treaty and conversation were not had, &c.; that such treaty was not completed; that no such purchase was made; and that the using and employment of said ship *and cargo in said trade and traffic were not by the license and command of the plaintiffs, or for their benefit as part-owners;) that the said ship was by the defendant owned at, &c., on, &c., and was by him there fitted out and prepared for a trading voyage to said coast, and was there used and employed in trade and traffic with the natives thereof, the defendant being the sole owner thereof until about the time of the said ship’s departure, as the plaintiffs have in their declaration alleged ; without this, that the said ship was laden with a cargo, and fitted out for a voyage to the said coast, oh account of said George, as the defendant in his said plea has alleged.</p> <p>To this replication the defendant demurred, assigning for causes the following, viz.: —</p> <p>1. That he, in his said plea, hath set forth and alleged good and sufficient matter in bar of the plaintiffs’ action, viz., that the plaintiffs did become purchasers and part-owners of the said ship upon the said voyage, and that the said voyage was prosecuted by their license and command, and for their benefit and profit as part-owners ; which the plaintiffs have not in any way confessed and avoided, nor contradicted or denied; but have traversed and attempted to put in issue an allegation in the said plea, which is matter of inducement merely, and which is wholly immaterial to the merits of the action.</p> <p>2. That the plaintiffs have answered by way of protestation, only, all the new and material allegations in the said plea; and that the said replication is altogether informal and insufficient.</p> <p>Secondly. In another plea in bar, the defendant alleged that, although the said ship was fitted out, &,c.,‘and did proceed on said voyage. &c., yet that the plaintiffs were part-owners of the said ship and cargo, &c., and that the prosecution of the said voyage, and the using and employing the ship in the said trade, &c., were with the license,- consent, and command, of the plaintiffs</p> <p>To this plea the plaintiffs replied that, after the defendant had prepared and fitted out and loaded said ship with a * cargo, &c., and had sent her on said voyage, contrary to his said covenants with them, and long after he had broken his said covenants, as they have alleged, and after said ship had arrived at said coast, they, on the 25th of October, 1809, had notice that the said ship had been so prepared and sent; and that they, on the day last mentioned, to save themselves, as far as in them lay, from some of the losses and damages occasioned by the said acts of the defendant, and also to obviate, so far as they could, the derangement of their plans of trade with said natives, occasioned by the defendant’s acts as aforesaid, and also to preserve an interest and connection in said trade, which they aver were necessary in their future trade and traffic with the said natives, did purchase a part of said ship and cargo, at a great advance and profit to the defendant, and did become part owners of the same ship and cargo.</p> <p>The defendant demurred to the said replication, and assigned the following causes of demurrer, viz.: —</p> <p>1. Because the plaintiffs therein allege that, after the said ship had departed, &c., they had notice, &c., but they do not allege that at this time they first had notice; so that the time of such notice being given (if material to be alleged) might be traversed or denied.</p> <p>2. Because the plaintiffs aver that they, after the supposed breach of covenant by the defendant, purchased, &c. And one of the breaches of covenant assigned by them is, the using and employing of said ship in said trade ; and yet they allege, among other things, as a reason for said purchase, that it was to preserve an interest in said trade; whence it follows, by the plaintiffs’ own showing, either that the said purchase was made prior to the using and employing of said ship in said trade, or that they, by aiding in the continuance of such use and employment, waived all right to damages for the breach of said covenant.</p> <p>3. Because the plaintiffs, by their own showing, did, after the alleged breach of said covenants, among other things, “ to save themselves from some of the losses and * damages occasioned thereby,” and to secure to themselves certain. other advantages not specified in or secured to them by the said original deed, purchase a part of said ship and cargo, with full notice that she was then prosecuting said voyage; thus electing and accepting, by way of accord and satisfaction, another indemnification for the very losses and damages, for which, as they say, the said covenant was originally made, and aiding and assisting him in the further breach of covenants made with themselves.</p> <p>4. Because the defendant has, in his said plea, alleged that the prosecution of said voyage, and the employment of the said ship in the said trade, were with the license, consent, and command, of the plaintiffs, and for their interest and profit as part-owners of the same ; which allegation they have not denied, except by implication, nor in any way confessed and avoided the same.</p> <p>5. Because the said replication is informal, double, not issuable, uncertain, and insufficient.</p> <p>There was a second count in the declaration, like that above recited, substituting the brig Lydia for the ship Hamilton, on which count there were similar pleadings.</p> <p>The cause was argued, at this term, upon the demurrers, by Dexter and Sullivan for the plaintiffs, and Otis and Bigelow for the defendant.</p>

<p>On the 4th of February, 1810, the House of Representatives of this commonwealth passed an order requesting the attorney or solicitor-general to file informations in the nature of a quo warranta, to know by what authority sundry persons, therein named, exercised certain offices in the county of Hampden, and, among others, by what authority Jonathan Smith, Jun., Esq., exercised the office of sheriff of said county.</p> <p>Whereupon, at this term, the attorney-general and solicitor-general filed an information, in which they recited at large the aforesaid order, and in pursuance of and compliance with the same, and of the request therein contained, give the Court to understand that said Smith, for six months last past, has used and exercised, and still doth use and exercise, the office of sheriff of the said county, without any warrant or lawful authority therefor ; which said office and the powers, &c., thereto belonging, he hath usurped, and still doth usurp, upon the government of the commonwealth, to the great damage and prejudice of the lawful authority thereof: —Whereupon the said attorney and solicitor-general pray the advisement of the Court in the premises; and if the Court are of opinion that the aforesaid order of the House of Representatives contains sufficient power and authority for them to prosecute this information to final judgment then they, the said attorney, &c., move the Court for due process of law against the said J. S., Jun., in this behalf to be made, to answer to the said commonwealth, by what warrant he claims to have, use, exercise, and enjoy, the said office of sheriff of said county of H.”</p>

This was a writ of error brought to reverse a judgment of this Court, rendered in an action wherein Cochran was plaintiff and Whiting was defendant. The judgment was against Whiting as principal, and against his goods, effects, and credits, in the hands' of Andrew Dexter and another, who had been summoned as trustees, and defaulted.

<p>This was an action of trespass for mesne profits, and came before the Court upon the following case : —</p> <p>The plaintiffs, at the Supreme Judicial Court for this county, March term, 1810, recovered judgment against said Callender for seisin and possession of the premises, whereof the rent is demanded in this action, being twenty-three undivided seventieth parts of the messuage and land described in the declaration. The judgment was founded on *a writ of entry, in which the plaintiffs declared that said Callender had no entry, but after the disseisin which one Lemuel Cox did to the plaintiffs within thirty years previous to the date of that writ. The said Cal-lender pleaded to said action, that said Lemuel Cox did not disseise those demandants, as they alleged in their writ. The jury found that Lemuel Cox did disseise the demandants; and they also as sessed, in favor of said Callender, for the buildings and improvements made by the said Callender, and those under whom he claimed, the sum of 476 dollars 33 cents, which the plaintiffs paid to him ; and on the 28th day of June, 1810, the plaintiffs received seisin and possession of the demanded premises, in virtue of a writ of habere facias possessionem issued on said judgment. The disseisin done to the plaintiffs by the said Lemuel Cox, as aforesaid, was more than twenty years previous to the date of the said writ of entry served on the said Callender; and the said Lemuel Cox, and those who claimed under him, had quiet seisin of the premises for more than twenty years next before the date of said writ. Said Callender had possession of the premises for the whole space of six years previous to the date of the writ in this action, which was the 18th of June, 1810.</p> <p>If, on the above state of facts, the plaintiffs were entitled to recover in this action for mesne profits, judgment was to be rendered for the plaintiffs, for the amount of rents received by the defendant within six years next before the date of the writ, deducting any sums he should have paid for taxes or repairs during the same time; but if the plaintiffs were not entitled to recover in this action, they were to become nonsuit, and the defendant to have judgment for his costs.</p>

<p>Case against the defendant, sheriff of the county of Hampshire, for the misfeasance of one of his deputies. The parties agreed to submit the action to the determination of the Court upon the following facts, viz.: —</p> <p>The plaintiffs, on the 16th of December, 1805, sued out of the Common Pleas for this county a writ of attachment, in due form of law, against one Solomon Johnson, directed to the sheriff of the county of Hampshire or his deputy, commanding them to attach the goods or estate of said Johnson to the value of 100 dollars; which writ the plaintiffs, on the same day, delivered to one Judah Sexton, then one of the defendant’s deputies, with special directions en dorsed thereon in writing, to attach sufficient. ‘ The said Sexton, by force of said writ, on the 19th of December aforesaid, attached two oxen and' two cows, the property of Johnson, and having given him a summons, duly returned the same writ to the said Court of Common Pleas at Boston, January term, 1806, when and where it was returnable ; and such proceedings were had thereon, that at the S. J. Court holden at Boston, November, 1810, the plaintiffs recovered judgment against said Johnson for 78 dollars damages, and costs taxed at 169 dollars 93 cents; and upon that judgment, on the 18th day of February, 1811, they sued out their writ of execution, in due form, against said Johnson,* and delivered the same to Zehina Dickenson, then a deputy under the defendant; and the said Dickenson, by directions from the plaintiffs, there afterwards, and within thirty days from the rendition of the said judgment, requested said Sexton to deliver to him the said oxen and cows, that he might extend said execution upon them. But the said Sexton neglected to produce or deliver said oxen and cows, or to account for them in any way. There is no evidence that the defendant or his deputy ever incurred any expense in keeping said cattle, unless it results from the deposition of the said Johnson, which is made part of the case ; and in which he testifies that the property, which Sexton returned as attached on the said original writ, was never receipted for, to the deponent’s knowledge.</p> <p>If, upon these facts, the Court should be of opinion that the plaintiffs have a right to recover in this action, the defendant agreed to be defaulted, and that judgment be rendered against him for 100 dollars, with interest and costs ; but if the Court should be of a different opinion, the plaintiffs agreed to become nonsuit, and that the defendant recover his costs.</p>

<p>Josiah Crosby, who was summoned as the trustee of Coates, the principal defendant in this action, stated, in answer to the usual interrogatory, that at the time of the service of the process, in this case upon him, he held the amount of 528 dollars in the bills or notes of the Hillsborough Bank, in the state óf New Hampshire, which belonged to the said Coates, and which had been refused payment when presented by Crosby at the said bank for that purpose. And the only question before the Court was, whether Crosby was to be adjudged the trustee of Coates on these facts.</p>

<p>A, and other creditors of B, an insolvent debtor, executes a letter of license to B, covenanting not to sue him within two years; and on the same day, B conveyed to A the moiety of a machine, the profits of which were to be distributed among B’s creditors pro ratá, B continuing in the use of the machine: before the expiration of the two years, A brought an action of assumpsit against B for the moiety of the profits received by him; and it was holden that the action lay.</p>

<p>The authority to grant administration upon the estate of a deceased intestate, who was, at his death, an inhabitant of the commonwealth, is vested exclusively in the judge of probate for the county where such deceased person dwelt at the time of his death; and the doings of any other judge of probate on such estate are void.</p>

<p>Assumpsit for money laid out and expended by the plaintiff for the use of the defendants. A verdict for the plaintiff was taken by consent, subject to the opinion of the Court upon the following facts agreed by the parties: —</p> <p>On the 24th of December, 1805, the defendants chartered by deed the brig Amity, to .the plaintiff, for a voyage from Boston to Barladoes and Martinico in the West Indies, and back to Boston. The master was appointed, and the crew shipped, by the defendants. The plaintiff covenanted, on his part, that no contraband goods should be laden on board said brig during said voyage, and that he would pay 3100 dollars as the hire of said vessel. The Amity proceeded on her said voyage, and the day after she sailed from Martinico, on her return to Boston, she was captured by a British cruiser, on suspicion of having French property on board, and carried into the Island of Nevis for adjudication, and there libelled in the Admiralty. The goods on board were the proceeds of the outward cargo, and the property of citizens of the United States. Five days after the arrival of the vessel at Nevis, but prior to any hearing in the Admiralty, the captors proposed to release their prize, on payment of 838 dollars and the costs, by the plaintiff, who was on board. This was at first refused; but the plaintiff and the master, being advised by counsel that no portion of the property was subject to condemnation, acceded to the said proposal of the captors, to obtain the release of the vessel and cargo. The plaintiff accordingly drew a bill of exchange on one Abraham Carter for said sum of 838 dollars, which bill was endorsed by Packard, the master; and this was accepted by the captors, and the vessel and cargo were discharged on payment of the costs by the plaintiff, and returned in safety to Boston. The plaintiff * claims 536 dollars, a portion of said sum of 838 dollars, as an average loss upon the said vessel and hire.</p> <p>It is admitted, on the part of the plaintiff, that he was bound to pay 27 dollars per day, in nature of demurrage, for every day that the vessel should be detained beyond 51 running days during said voyage ; and that a considerable sum was due on that account, at the time of her departure from Martinico; that the vessel was worth 4000 dollars, and the cargo the same sum; that the vessel was captured for the cause aforesaid, and for no other; that the said bill was never accepted by said Carter, and was not paid by the master or the plaintiff when this action was commenced ; and that the freight earned for the plaintiff, in said voyage, was equal to the hire of said vessel.</p> <p>Now, if the Court should be of opinion that the plaintiff is entitled to recover, and that the amount of said bill of exchange is to be apportioned on the value of the said vessel, her hire under the deed aforesaid, and the cargo, then judgment is to be rendered for 536 dollars and costs. But if the Court should be of opinion that the freight earned by the plaintiff is to be charged with the loss, and not the hire as aforesaid, then judgment is to be rendered for •234 dollars and costs. If the Court should be of opinion that the plaintiff is not entitled to recover in this action, he is to become nonsuit.</p> <p>The cause was argued, March term, 1811, by Solfridge for the plaintiff, and Bourne for the defendants.</p>