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USE AND OCCUPATION. 1. A person occupying land under a contract for the purchase of
it, is not liable to pay rent on an implied contract for the use and occupation, if the owner of the land fails to execute a conveyance of it to him. Little v.
Pearson, 7 Pick. 301. 2. P. paid L. 100 dollars as the price of a piece of land, and L.
gave P. a promissory note for the money payable to P. or order, under which the following memorandum signed by L. was written. “N. B. This note is to be given up when I give him a deed of the land which I have engaged to give him,' &c. P. occupied the land nine years, till the time of L's. death, but L. made no conveyance of the land, and P. retained the note. L. died insolvent, and his administrators brought assumpsit against P. for the use and occupation of the land during the
Held, that the action would not lie. 16. 3. It seems, that the note with the memorandum is sufficient
agreement in writing for a court of equity to compel a convey
ance of the land. Ib. USURY. 1. The maker of a negotiable note which he alleges to be usuri
ous, cannot object that an action upon it against him is brought in the name of an endorsee at the request and for the benefit of
the payee. Brigham v. Marean, 7 Pick. 10. 2. Under Mass. Stat. 1826, c. 27, one who reserves usurious in
terest on a contract, forfeits threefold the whole interest, usuri
ous as well as lawful. 1b. 3. Where the plaintiff declared in one count upon a usurious
note, and in another upon a note not usurious, and recovered judgment on both, but with a deduction of threefold interest from the usurious note, it was held, that each party was entitled
to costs. 1b. VARIANCE. Where in debt upon a recognizance, the recognizance was alleg
ed generally, and upon nul tiel record it appeared to be a recognizance with condition, the variance was held fatal. Harrington v. Brown, 7 Pick. 232. VERDICT. See EstOPPEL. VISITER. See CORPORATION, 1 to 11. WASTE. 1. Whether the statute of limitations can be pleaded to a writ of
waste, quære. Padelford v. Padelford, 7 Pick. 152. 2. By Mass. St. 1783, c. 40, s. 3, a tenant in dower committing
waste, forfeits the place wasted and only single damages. Ib. 3. To cut oak trees for fire-wood, is not waste. Ib. 4. It is not waste in a tenant in dower to cut timber on one par
cel of land to make repairs on another, notwithstanding the reversion of the two parcels may be in different persons.
5. It is waste to cut timber trees and sell them in exchange for
fire-wood. Ib. 6. Waste by cutting two trees in a wood-lot does not operate a
forfeiture of the whole land. 1b. 7. The plaintiff prevailing in an action of waste is entitled to full
costs, notwithstanding he recovers less than twenty dollars
damages. Ib. WATER PRIVILEGE. 1. The owner of a mill, who is entitled to use only the surplus
water not required by another mill, is bound to shut his gate when there is not a sufliciency of water for both; but if the other mill-owner, in such case, undertakes himself to prevent the passage of the water to the mill first mentioned, he will be liable to an action if he does not remove the obstruction as soon
as the deficiency of water ceases. Sumner v. Foster, 7 Pick. 32. 2. Where the plaintiff, owner of a mill, carried on business in it
in company with another person, and agreed to make a deduction from the rent on account of back water caused by the defendant's dam, it was held, that in an action by the plaintiff against the defendant to recover damages for the obstruction, such other person was not interested, and therefore was a competent witness.
Sumner v. Tileston, 7 Pick. 198. 2. Where the plaintiff
, in an action of the case to recover damages for an obstruction to his mill, whereby his profits were diminished, declared that he was seized and possessed of the mill, and the evidence was that it was occupied by a tenant at will at a rent reduced on account of the obstruction, it was held that the declaration was supported, for that the possession of the tenant was the possession of the plaintiff
, and the injury was consequential upon a wrong done while the plaintiff was in actual possession, and the damage was sustained by him
alone. Putnam J. dissenting. 15. 4. Where the defendant was owner of an existing mill-dam, and
the plaintiff rightfully erected a mill-dam above it on the same stream, it was held that the defendant had no right to increase the height of his dam to a level with the plaintiff's wheel, and
thereby to obstruct the wheel by back water. Ib. 5. Where the plaintiff erected a mill in 1799, and the defendant,
who owned a mill lower down on the same stream, was in the habit of raising his dam by means of flash-boards when the water in the stream was low, but within twenty years after the erection of the plaintiff's mill, had been frequently ordered to take down the flash-boards and always acquiesced, claiming no right to keep them up to the injury of the plaintiff, and afterwards admitted that he had no right to keep them up, it was held that this evidence was sufficient to defeat any claim of
prescription on the part of the defendant, or to rebut the pre
sumption of a grant. Ib. 6. Where the proprietors of a township, in order to encourage
its settlement, voted to give lands and a sum of money to any person who would build mills on one of the lots designated, and maintain them for ten years, which was done; this was held to give no right to flow the lands of any individual proprietor, holden in severalty at the time of the vote, though more than forty years had elapsed since the mills were built, without
any claim of damage. Stevens v. Morse, 5 Greenl. 26. WAY. See HIGHWAY. WILL. 1. Where after a will of real and personal estate was duly exe
cuted, a scrivener, by direction of the testator and in the presence of only one of the subscribing witnesses, interlined another legacy, it was held, that the alteration did not make
the will void. Wheeler v. Bent, 7 Pick. 61. 2. Suicide committed by a testator soon after making his will, is
not conclusive evidence of insanity. Brooks v. Barrett, 7
Pick. 94. 3. Upon an appeal from a decree of the Judge of Probate dis
allowing a will on the ground that the testator was not of sound mind, the right to open and close is with the appellant, as he is in the first place to prove the execution of the will and to examine the subscribing witnesses as to the sanity of
the testator. Ib. 4. A will being proved prima facie by the statute evidence, the
burden of proof is on the party objecting to its allowance on the ground of insanity, to show that the testator was not of sound mind; and if the evidence is doubtful, the presumption
of law in favor of sanity is to have its effect. Ib. WITNESS. 1. A party to a suit may be a competent witness to prove the
loss of a deed or record, for the purpose of letting in secondary evidence, but not to prove the contents of the deed or
record. Adams v. Leland, 7 Pick. 62. 2. If pending an action brought by the trustees of a charity, one
of the plaintiffs resigns the trust, he is still a party to the record and liable for costs, and so is not a competent witness.
16. 3. In a prosecution by complaint against the owner of part of a
mill-dam, for flowing lands, the owner of another part of the same dam, in severalty, is a competent witness for the respon
dent. Clement v. Durgin, 5 Greenl. 9. 4. In an action brought by a mortgagee, against a stranger, to
recover possession of the lands mortgaged, the morgager was admitted a competent witness for the mortgagee, the latter
VOL. IV.NO. VII.
having released him from so much of the debt as should not be satisfied by the land mortgaged, and covenanted to resort to the land as the sole fund for payment of the debt. Howard v.
Chadbourne, 5 Greenl. 15. 5. A judgment debtor, whose goods have been seized and sold
on execution, does not stand in the relation of vendor to the purchaser. And therefore, not being liable on any implied warranty, he is a competent witness in any suit between other
persons respecting the goods. Lothrop v. Muzzy, 5 Greenl. 450. Sec BILLS OF EXCHANGE AND PROMISSORY Notes,11; HUSBAND
AND WIFE, 2. WRIT. If the endorsement of a writ does not contain the whole christian
name, and is not objected to by the defendant on that account, the endorser cannot afterwards take advantage of this omission, to avoid his own liability. Strout v. Bradbury, 5 Greenl. 313.
NOTICES, SHORT REVIEWS, AND ANALYSES.
Chitty's English Statutes. During the last year, Mr. Chitty completed the publication of his collection of the English ‘Statutes of Practical Utility, with Notes. It is in two volumes, large royal octavo, comprising 1307 pages. The statutes are arranged under distinct heads alphabetically, so that all those relating to the same subject are brought together, and Mr. Chitty has added notes of the decisions upon the particular statutes. This publication is really a very useful one, for it brings the English statutes within the means of lawyers to purchase, and one may at a glance ascertain the state of the English law up to 1828, upon any particular subject. The abstracts of the sections and the references in the margin to other statutes, and cases, are so full, that this collection answers, in a great measure, the purposes of a digest, though the subjects are alphabetically arranged under two hundred and seventy or eighty heads, so that the work itself is constructed upon the plan of an alphabetical index, in which one may turn immediately to any general title; still as the provisions included under these heads, are in many instances, numerous and complicated, it would, without any further help, be frequently a very tedious search to find the sections relating to any particular subject of inquiry. To remedy this inconvenience, the compiler has added a very full Index of 160 pages, in which any particular subject of inquiry may be very readily found, and which serves in some measure as an analitical digest.
This collection does not embrace the subjects of all the laws now in force and contained in the twenty-six quarto volumes of the English statutes. The acts or sections of acts relating to the jurisdiction of justices of the peace, the criminal law, and police and fiscal regulations, are omitted, being reserved for a subsequent volume. Mr. Chitty says that since the beginning of the reign of George III. (1756) the acts of parliament have increased from six to the present number of twelry-six volumes.
Tyrwhitt and Tyndale's Digest of the English Statutes. This work consists of two quarto volumes of 965 pages of the Digest, 158 pages of a chronological list of the statutes, an alphabetical list of articles of 158 pages, an appendix of 37 pages, and a very full