ACTION.

1. In an action upon a promissory
note, it appeared, that the real es-
tate of the defendant was attached
before the note was signed, but that
it was not intended that the writ
should be used for the attachment
of personal estate until afterwards;
and personal estate was in fact at-
tached after the note was signed.
It was held, that the attachment of
the real estate must be deemed the
commencement of the action; and
that, as the plaintiff had then no
cause of action, the attachment, as
well of the personal as of the real
estate, was void. Swift v. Crock-

er.

241
2. Under St. 1828, c. 112, an execu-
tor might maintain trespass quare
clausum for an injury done to the
land in the lifetime of the testator.
Wilbur v. Gilmore.
250
3 But if that statute had not been
enacted, the provision in Revised
Stat. c. 93, 7, allowing such an
action, is not unconstitutional when
applied to a trespass committed be-
fore this provision went into opera-
tion, inasmuch as it affects the
remedy only.
Ibid.

4. Where, in a trustee writ, the de-
fendant was described as an inhab-
itant of another State, and the offi-
cer returned, that he had sum-
moned the trustee, and no service
was made upon the defendant by a

direct attachment of his property
or otherwise, and the trustee dis-
closed, that he was indebted to the
defendant but was not an inhabit-
ant of this Commonwealth, it was
held, that the courts of this Com-
monwealth were not authorized to
take cognizance of the action, al-
though personal notice of the pen-
dency thereof, was given to the
defendant in pursuance of an order
of court; and that, as these facts
appeared upon the record, includ-
ing the return and the answer of
the trustee, the action should be
dismissed on motion Nye v. Lis-
combe and Tr.

263

5. The appearance of the defendant
in such case, by an attorney of the
court, merely to move that the ac-
tion should be dismissed for want
of service, will not give the court
jurisdiction of the action; and as
such motion is not technically a
plea to the jurisdiction, it may
rightfully be made by attorney.
Ibid.
Where a writ is filled up provis
ionally and delivered to an officer
with instructions not to serve it un-
til after a certain time or the hap-
pening of a certain event, the ac-
tion will not be deemed to have
been commenced until the service
of the writ. Seaver v. Lincoln. 267
7. Thus, where a writ against the

6.

indorser of a note was delivered to
an officer with instructions not to

ACTION ON THE CASE.

1. The master of a vessel is not re-
quired by any positive law or gen-
eral usage, always, in the night
time, to exhibit a light on his vessel
while at anchor in a harbor; and
whether the omission to exhibit one
will amount to negligence, so as to
bar a claim for an injury received
from another vessel's running foul
of her, must depend on the partic-
ular circumstances of the case.
Carsley v. White.
254
2. In an action on the case against
the defendant for carelessly and
negligently setting a fire on his
own land whereby the plaintiffs'
property on adjoining land was con-
sumed, it is not material whether
the proof shows gross negligence
or only want of ordinary care, for
in either case the plaintiffs would
be entitled to recover damages to
the amount of the actual loss sus-
tained by them, and no more, in
the form of vindictive damages or
otherwise. Barnard v. Poor. 378
3. The plaintiffs entered into a con-
tract with the owners of growing
wood, to cut and carry it away at a
fixed price per cord, the wood to be
measured by a sworn surveyor, and
the plaintiffs were also to have one
half of the refuse wood; and in
pursuance of the contract a large
quantity of wood was cut and
corded, but was not measured in
the mode agreed on. In an action
of the case against the defendant
for negligently setting a fire on his
land adjoining, whereby the wood

was consumed, it was held, that the
property in the corded wood had
not vested in the plaintiffs, and that
the measure of damages in respect
to it was the value of the wood,
deducting the price which the
plaintiffs were to pay for it to the
owners; that one half of the refuse
wood had vested in the plaintiffs,
and as to that the measure of dam-
ages was the value of their half;
and that they were not entitled to
recover for the profits which they
would have made on the wood
which remained uncut, in case it
had not been destroyed; nor for
the counsel fees or other expenses
of prosecuting the action, beyond
the taxed costs.
Ibid.

1. In an action against an heir,
brought after the remedy against
the administrator was supposed to
be barred by the lapse of four
years from his appointment and le-
gal notice of the appointment, the
declaration averred that the admin-
istrator gave notice in the manner
directed by the judge of probate by
his order remaining on record, in-
stead of averring that he gave the
notice required by the statute: but
it appeared that the notice ordered
was in fact the same as that pre-
scribed by the statute, and the ad-
ministrator's affidavit on record
showed that the order had been
complied with. It was held, that
the mistake was a defect of form
only, and after verdict the plaintiff

A partnership consisting of W, B,
S and S, doing business in one town
under the name of W, S & Co.,
and in another under the name of
B & Co., made three promissory
notes in the name of W, S & Co.
to the plaintiff's intestate. This
partnership was dissolved, and
thereupon B, S and S formed a
new company, doing business in
both places under the name of B&
Co., and became indebted to the in-
testate in the sum of $100-78. The
new company soon after assigned
their property in trust for the pay-

ment of their creditors, and in a
schedule of the creditors and of the
sums due to them respectively, an-
nexed to the indenture of assign-
ment, was the name of the intes-
tate, with the sum of $100 set
against it. By the indenture, the
creditors who became parties to
it "release unto the said B, S and
S, and each of them, the several
debts and sums of money, written
opposite to their respective names,
in the schedules hereto annexed."
It was held, that construing the in-
denture by itself, the intestate, by
executing it, released only the sum
set against his name, and that parol
evidence to show that the notes
were intended to be embraced by
the release, was inadmissible. Rice
v. Woods.

30
2. Under a common assignment of an
insolvent debtor's goods in trust for
his creditors, empowering the trus-
tee to sell the goods in such man-
ner as he may consider expedient
and most for the interest of all par-
ties, the trustee has authority to
sell on a credit. Neally v. Am-
brose & Trs.

185

3. In the case of a general assign-
ment by an insolvent debtor in
trust for the benefit of his credit-
ors, purporting to be made by and
between the debtor, the trustees,
and those of the creditors who shall
execute the instrument within a
fixed period from its date, and con-
taining a release to the debtor, a
creditor who executes the instru-
ment after such period has elapsed,
is not a party to it, and his claim is
not affected by the release. Bat-
tles v.
Fobes.
239
Where, previously to the sailing
of a whaling ship, a seaman drew
an order in favor of the plaintiff, on
the owners, for his share of the
proceeds of the voyage, and the
agent of the owners declined ac-
cepting it, but told the plaintiff, that
he would take the order if the
plaintiff wished, subject to his con-

4.