GAGE US. Gannett & AL.

Bond for the plaintiff.

Allen for the defendants.

Per Curiam. Had the condition of this bond been for the payment of interest after the months had expired, the penalty would have been forfeited, notwithstanding the plaintiff's acceptance of the principal. But here it is but an incident in the nature of damages; and the principal having been paid and accepted, the penalty is saved. (a)

-

Plaintiff nonsuit.

Foster Higgins vs. Sar

(a) See Bond vs. Cutler, 10 Mass. Rep. 419. Harris vs. Clapp, 1 Mass. Rep. 308. - Pitts vs. Tilden, 2 Mass. Rep. 118. - Farquhar vs. Morrison, 7 D. & E. 124.. M'Gill vs. Bank U. S. 12 Wheat. 511.. Page vs. Newman, 9 B. & C. 381.. & Al. vs. Weston, 6 Bing. 709. Hogan vs. Page, 1 B. & P. 337.gent, 2 B. & C. 348.- Sneed & Al. vs. Wistar & Al. 8 Wheat. 690. Dawes vs. Winship, 5 Pick. 97. - Parker vs. Thomson, 3 Pick. 429. — Newson's Admr. vs. Douglas, 7 H. & J. 417.

[* 219 ]

66

*JESSE JEWETT versus WILLIAM TORrey.

The defendant had given the plaintiff, a deputy sheriff, an accountable receipt for English and West India goods to the amount of 150 dollars, attached at the suit of A against B," promising to deliver the same to the plaintiff on demand. A having recovered judgment and execution, the defendant was holden liable on his promise, although it appeared that the goods had not been removed from the possession of the general owner, in consequence of the attachment, but had been disposed of by himn for his own use and benefit.

THIS was an action of assumpsit, brought upon the following receipt, viz.: "Bath, July 7, 1811. Received of Jesse Jewett, deputy sheriff, English and West India goods to the amount of one hundred and fifty dollars, attached on a suit of John Getchel vs. Jesse Emerson; which goods I promise to deliver said Jewett on demand. Wm. Torrey."

The action was submitted to the decision of the Court upon a case agreed by the parties.

The plaintiff, being a deputy sheriff, having a writ of attachment in favor of John Getchel against Jesse Emerson, went to the store of Emerson, containing English and West India goods more than sufficient to respond Getchel's demand; Emerson being then absent, and the store being under the management of his apprentice or clerk. Upon the plaintiff's making his object known to the clerk, and desiring him to procure some person to receipt for the amount, the clerk went into the street, and saw the defendant passing along

JEWETT US. TORREY.

in haste, whom he requested so to receipt. The defendant promised to call and sign a receipt on his return. In the mean time, the plaintiff wrote the receipt, which the defendant signed on his return, and immediately left the store, desiring the clerk to see what he had signed, and to take a copy of it.

Neither the plaintiff nor defendant removed the goods or took any account of them; but the same remained in Emerson's store, and were afterwards sold for his benefit.

In January, 1812, Getchel recovered judgment, and sued out execution against Emerson, and delivered the execution to one Wyman, then a deputy sheriff; who within thirty days demanded of Torrey the goods mentioned in his said receipt, offering to deliver him the receipt upon his delivering the goods, which Torrey refused.

Warren, for the defendant. Here was no attachment of these goods by the plaintiff, to constitute which there must be actual possession and custody. (1) The plaintiff then had no such special property in the goods, as gave him a right to demand a [*220] receipt for them, or entitled him to require *a delivery of them from the defendant. The contract was nudum pactum, being wholly without consideration.

Rice for the plaintiff.

Per Curiam. The evidence is of a written receipt and promise, on the part of the defendant, to deliver to the plaintiff goods, not specified as to the particular articles, but of which the amount or value and general quality are distinctly stated; and the special purpose of the receipt is also mentioned, viz., to respond an attachment. A breach of the promise is also proved by the demand and refusal to deliver the goods.

It is objected that the case shows that there had been no sufficient and legal attachment of the goods by the plaintiff. But it is not for the defendant to make this objection. His receipt acknowledges an attachment. He is not to defend himself by questioning the right of the plaintiff. If the goods have been restored to the general owner, the debtor in the writ of attachment, this will not excuse the defendant, when the right of the plaintiff has been continued and enforced by a judgment and execution, and a demand of the goods within thirty days from the judgment. (a) Defendant defaulted.

(1) 5 Mass. Rep. 157, Lane & Al. vs. Jackson.

See ante, Whittier vs. Smith & Al. 211. — Knapp vs. Sprague, 9 Mass. Rep. 262, and note.- Bagley vs. White, 4 Pick. 395. — Chapman & Al vs. Searle, 3 Pick. 38.

AGRY US. YOUNG & AL.

DAVID AGRY versus ELI YOUNG AND OTHERS.

Trespass, and not case, is the proper action against assessors, for assessing one not liable to assessment by them.

THIS was an action of the case against the defendants, as assessors of the town of Pittston, for unlawfully assessing the plaintiff in divers taxes for the year 1812, and causing him to be arrested therefor, and compelling him to pay the sums so illegally assessed.

The action was tried upon the general issue, at the last October term in this county, before Parker, J., when a verdict was returned for the plaintiff, subject to the opinion of the Court upon the evidence reported by the judge; from which it appeared that the plaintiff had not been an inhabitant or resident in Pittston for three years prior to 1812; but had, during that time, resided in Hallowell, and had been there taxed for his poll and estate.

* There was also a motion in arrest of judgment, on [ *221 ] the ground that the action should have been trespass,

and not case.

Rice, in support of the motion, cited the case of Day vs. Edwards; (1) and contended that the injury in the case at bar was direct, and not consequential, which is the true distinction between case and trespass vi et armis.

Bond, for the plaintiff, argued that the injury complained of was the illegal assessment. The arrest, &c., were but consequential. He also referred to a precedent in a like action, which was case, by the late Chief Justice Parsons, when at the bar, and another by the late Judge Paine. (2)

Per Curiam. The practice was formerly to declare in this class of actions in case; but a decision is recollected by us, that trespass vi et armis was the only proper action, and we must adhere to it. (a)

(1) 5 D. & E. 648.

Amer. Prec. of Declarations, 213.

380.

Judgment arrested.

Coburn vs. Richardson, 16 Mass. Rep. 213. - Pease vs. Whitney, 5 Mass. Rep. Little vs. Greenleaf & Al. 7 Mass. Rep. 236.-1 Chitty, 7th ed. 209. — And sec Colman & Al. vs. Anderson, 10 Mass. Rep. 120, n.

BROWN vs. INHABITANTS OF SOMERSET.

JOHN BROWN versus THE INHABITANTS OF THE COUNTY OF SOMERSET.

An action against the inhabitants of a county may be brought to the Court of Common Pleas holden for the same county.

THIS was an action of assumpsit, brought in the county of Somerset, upon sundry orders drawn by a committee appointed by the Court of Common Pleas for the county of Somerset, in June, 1811, to superintend the making a highway through certain unincorporated lands in said county, upon the county treasurer, in the plaintiff's favor, dated March 24, 1813, and by him refused.

The cause was tried upon the general issue, at the last October term in this county, before Parker, J., when a verdict was taken for the plaintiff, subject to the opinion of the Court, upon two objections made by the defendants, viz.: 1. That the action was not rightly brought in the county of Somerset, upon which they moved that the action should be dismissed; 2. That the orders declared on were drawn by a committee appointed by the Court of Common

Pleas, in June, 1811, and the powers of that court, [* 222] touching the subject of roads having been transferred to the Court of Sessions, before the said orders were drawn, the said committee had no authority to draw the same.

Bond, for the defendants, insisted that it was against the common principles of equity that a party should be a judge in his own cause; and to this he cited the express decision of this Court in the similar case of Hawkes vs. The Inhabitants of the County of Kennebeck. (1) (a)

He also argued that the Court, which authorized the committee to draw the orders on which the action was brought, having ceased to exist, the powers of the committee had ceased also; as, upon the death of an individual, the authority of his agent ceases.

Per Curiam. The case of a court is different from that of individual citizens. One court succeeds another, and takes, by statute, all the powers and authorities of its predecessor. The decision in Hawkes's case was grounded upon the test of the writ; although the reasoning of the chief justice, in delivering the opinion of the Court, supports the objection made by the defendants' counsel, grounded upon that decision.

Boutell for the plaintiff.

(1) 7 Mass. Rep. 461.

Judgment according to the verdict. (2)

(2) Vide Stat. 1809, c. 127.

Inhab of

(a) And see Gage vs. Gannett & Al. 10 Mass. Rep. 170, and note.— County of Lincoln vs. Prince, 2 Mass. Rep. 544.

WARREN vs. CHILDS.

EBENEZER T. WARREN versus JAMES CHILDS.

A, being seised of land subject to a mortgage, conveys the same to B; alter which C attaches it as the property of A. Pending C's action, D agrees to purchase the estate of B, and pays the consideration agreed on. B, instead of a conveyance to D, makes a release to A, who had before conveyed to D, and D had entered, and he continued seised until C extended his execution within thirty days after judgment. It was holden, that nothing passed by B's release to A, and that C took nothing by the extent of his execution.

THIS was a writ of entry sur disseisin, in which the demandant counts upon his own seisin, and upon a disseisin by the tenant.

The parties agreed to submit the action to the decision of the Court upon the following facts: On the 7th of November, 1810, one Ephraim Dutton, being seised in fee of the demanded premises, mortgaged the same to Joshua Gage; and on the 29th of June, 1811, for a valuable consideration, conveyed the same

by deed with warranty to * B. and N. Tucker, referring [* 223 ] to and excepting the encumbrance thereon to Gage; which deed was duly acknowledged and recorded on the same day.

On the 11th of October, 1811, Dutton being in possession of the premises thus conveyed to B. and N. Tucker, and at that time erecting a house thereon, the demandant attached them as Dutton's property, by virtue of a writ, upon which judgment was rendered against him in May, 1812.

On the 7th of November, 1811, the tenant, Childs, agreed to purchase the premises, subject to the mortgage to Gage, and gave his promissory note for 900 dollars, and placed the same in the hands of Mr. Bridge, as attorney to B. and N. Tucker, and took from him an obligation to procure a deed of the premises from said Tuckers to the tenant, or to return him the said note, in case of their refusal. On the same day, the tenant took from said Dutton his deed with warranty of the premises, in which his wife joined to release her right of dower therein, which deed was duly acknowledged and recorded on the same day; and the tenant entered upon the premises on the 15th of the same November, and continued seised until the levy of the demandant's execution.

On the same 7th of November, the said Bridge wrote to his partner, then in Boston, stating to him the arrangement he had made with the tenant, and requesting him to procure from the said Tuckers their release of the premises to the tenant; and on the 11th of November, the Tuckers, being informed of the arrangement made by their attorney, acquiesced therein and made a release of the premises to Dutton, his heirs and assigns, instead of the tenant;