a mere matter in abatement, though it is presented by the case stated. Ray v. Underwood, 3 Ib. 302; Ellsworth v. Brewer, 11 Ib. 316. So if a party agree to a fact, which the other party would have been estopped to assert, it is a waiver of such estoppel. Wheelock v. Henshaw, 19 Ib. 341.

Statements of this kind are subject to the control of the Court, and they will be discharged and a trial will be ordered, if justice seem to require it. Shearer v. Jewett, 14 Pick. 232. It is the practice in cases involving numerous and difficult questions of law, and where there are but few facts in dispute between the parties, to have the judgment of the jury upon those facts, and to incorporate their finding into an agreed statement. Whenever this is done, it is generally upon the suggestion of the Court and by consent of both parties, and is sometimes eminently useful in bringing about a speedy and final determination of the cause. Thus, where the counsel or the parties have confidence in each other, and are seeking for justice according to law, it is not unusual (though more rare than could be wished) to agree to all the facts susceptible of proof or which are really true, and request the jury to answer certain questions respecting other facts, which are in dispute. In a case tried before the writer, the only question made was whether the officer, to whom an execution was, delivered, knew that an attachment of real estate had been made by the officer who served the writ; and if so, what was the value of such real estate. The jury were directed to answer both questions, and they were incorporated into an agreed statement of facts.

CHAPTER XXVII.

APPEAL.

THE right of appeal, which formerly existed in Massachusetts to such an extent, that trials in the lower Courts, in cases of any importance, were mere rehearsals preparatory to the final performance in the Court of the last resort, has been abolished, in nearly all cases, by the Statute of 1840, c. 87. After years of experience, the Legislature voluntarily reverted to the wisdom of the common law, to which an appeal was unknown.

A few cases remain, in which an appeal is still allowed, and the first is from the decision of Justices of the Peace, which is allowable as a matter of right, in all cases, if claimed within twenty-four hours after the entry of the judgment, c. 85, § 13. Judge Howe cites a case decided in the Common Pleas, in 1826, in which it was held, that an appeal made from a Justice, the day after judgment was rendered, though within twenty-four hours of the time and before execution was issued, could not be sustained. Prac. 442. It is doubtless true that an appeal cannot be granted, unless it be claimed within twenty-four hours of the time. when judgment was rendered; and the decision above cited was predicated upon the peculiar phraseology of the statutes then in force. The appellant must recognize, with sufficient sureties, if required by the other party, to prosecute his appeal with effect, and to pay all costs that may be incurred after the appeal, § 14. The same provisions extend to Police Courts, c. 87,

§ 34. The right of appeal is especially extended to cases of replevin, (c. 113, § 25,) and to cases of ejectment, (c. 194, § 8,) and to cases for the forfeiture of goods, c. 118, § 33. In prosecutions under the militia law, no appeal is allowed from the judgment of a Justice, unless the forfeiture adjudged exceed ten dollars, c. 12, § 112. Where a poor debtor applies to be discharged from imprisonment, and charges of fraud are alleged against him, an appeal may be made to the Common Pleas, by either party, c. 98, § 32.

There can be no appeal from any judgment of the Court of Common Pleas upon the verdict of a jury, (Stat. 1840, c. 87, § 4,) except upon matter of law apparent upon the record, § 5. This provision is brief, but it is clear and decisive, and of course repeals all the provisions of the Revised Statutes upon the subject, whether general or special. The remedy of the party injured by an erroneous decision of that Court is to move the Court for a new trial, file a bill of exceptions, or bring a writ of error. No appeal lies from the judgment of the Common Pleas, dismissing an action, (Cushing v. Field, 9 Met. 180); but it has been held, that where the Common Pleas set aside the verdict of a jury, awarding damages in case of laying out a town way, that the right of appeal existed, because the judgment of that Court was founded upon matter of law apparent upon the record. Parker v. Framingham, 8 Ib. 263. The Court say, that the 4th section of Statute of 1840, c. 87, prohibiting an appeal from the judgment of the Common Pleas, on the verdict of a jury, plainly applies to common law cases tried by jury in the Court of Common Pleas, where the effect of an appeal would be to annul the verdict, as of course, and open the case to a jury trial in the Court

above. So an appeal was allowed in case of an award, for matter apparent on its face. Skeels v. Chickering, 7 lb. 316. The uniform practice is to appeal from the decision of the Common Pleas, on the question of charging or discharging a trustee, because the matter of law is apparent on the record; and such appeal must be entered at the next term of the Supreme Court for the same county, (Stat. 1840, c. 87, § 5,) and may be decided by a single Judge. Shaw v. Bunker, 2 lb. 376.

Appeals are allowed from inferior tribunals to the Court of Common Pleas or to the Supreme Court, according to the amount involved, in certain specified cases. Thus it is allowed from the adjudication of commissioners for improving meadows, (c. 115, § 16); from commissioners appointed to examine the claims against the estate of a deceased person, represented to be insolvent, c. 68, § 8. So where a man and a woman desire to be married, and objections are made, and two Justices of the Peace decide that the objections are sufficient, either of the persons who propose to be married, may appeal to either of the above Courts, which shall be first holden in the county. This is a most important and excellent provision, and the Legislature are entitled to the thanks of the community, for the extraordinary pains they have taken to prevent unnecessary delays in such urgent cases. The right of appeal here is of no practical value, as it was never known that either party ever appealed therein to either of the Courts above mentioned. The common practice is to appeal, at once, to a clergyman or Justice of the Peace in an adjoining State, who commonly settles the question, to the entire satisfaction of the parties, in a few minutes. An appeal lies also from the de

cision of a Judge of Probate or Master in Chancery, by a creditor of an insolvent estate, whose claim is disallowed in whole or in part, (Stat. 1838, c. 163, § 4,) to the Supreme Court or Common Pleas, according to the amount due at the time of the first publication of the notice by the messenger. Whiting v. Gray, 9 Met. 291. So from the commissioners on the estate of a deceased insolvent, to the Supreme Court, if the claim exceed three hundred dollars. Sabine v. Strong, 6 Ib. 270.

In nearly all cases an appeal lies from the Judge of Probate to the Supreme Court. Rev. Stat. c. 70, § 36; c. 83, § 33, 34. The mode of making an appeal from the Court of Probate is particularly pointed out by the 35th, 36th, and 37th sections of the eighty-third chapter of the Revised Statutes. Regularly the appeal must be made to the next term of the Supreme Court, within the county, to be held after the expiration of thirty days after the date of the act appealed from. The appellant is required to file his reasons of appeal, in the Probate office, and cause an attested copy to be served on the adverse party, fourteen days at least before the time, when the appeal is to be entered. An appeal from this Court may be claimed orally. Avery v. Pixly, 4 M. R. 460. It is provided by the same chapter, § 39, that if the party have neglected to make or enter his appeal in due time, without default on his part, the Supreme Court may allow it to be entered and prosecuted on petition, (Cross v. Cross, 7 Met. 211); but in such case there must be a written petition to have the appeal allowed and entered, and notice thereof must be regularly served upon the appellee. Bergen v. Jones, 4 Met. 371. A petition to the Judge of Probate to