Held, also, that the defendant, having repudiated the title of J's. third under his deed, and recovered the consideration paid for it and interest, could not now set up his possession as that of a cotenant under that deed, and he must therefore be regarded as a disseizor of that part.

RUSSELL v. FABYAN.

Refusal to give a deposition.

A motion for a special commission, to take the testimony of a witness disabled by paralysis to attend court, whose testimony was material, and within his knowledge alone, on the ground that he had refused to give his deposition before a Justice of the Peace, and that the remedy by attachment and fine by a Justice, or by a suit at law was inadequate, was declined as an unusual exercise of the power of the court, and because there was no doubt of the power of the court, as a court of equity, to cause the deposition to be taken de bene esse, upon a bill for that purpose.

PITMAN V. THE TOWN OF ALBANY.

Effect of establishment of boundary lines between towns by Court of Common Pleas.

The judgment of the Court of Common Pleas upon the report of a committee appointed under the provisions of ch. 37, § 6, of the Revised Statutes, which empowered that court to establish the disputed boundary line between two adjoining towns, is a judgment in rem, and conclusive upon all persons.

The effect of such judgment is not merely prospective. It is an adjudication not only of where the line is, but where it always has been since it was established by the incorporation of the towns, and is therefore conclusive upon the parties in a suit against one of the towns, pending when the judgment was rendered, and in which is involved an inquiry into the true location of the boundary.

CARLETON V. Insurance COMPANY.

Trustee process-Jurisdiction of court where principal defendant is a nonresident.

In proceedings under the trustee process against absent debtors, the record must show a strict compliance with the order of notice to the principal defendant, or the judgment rendered against him will be irregular, and liable to be reversed upon error, although there may be funds in the hands of the trustee.

In such proceedings, the entire authority and jurisdiction of the court depend on the existence within the State of a subject matter on which its jurisdiction may be exercised, and if there be nothing in the hands of the assumed trustee, or nothing which can be reached by the process, no valid judgment can be rendered against

the principal defendant, unless his property has been attached, or he has been duly served with process, or has appeared and answered in the suit.

Such judgment, if rendered, is absolutely void, a mere nullity, and will not sustain an action of debt brought upon it.

LANG . EVANS, TRUSTEE.

Plea in abatement.

A plea in abatement for defective service of a writ by copy, must crave oyer of the writ, declaration and officer's return, set them out at large, and also make profert of and enrol the copy served.

Unless the copy be enrolled and made part of the record, there is nothing in the record to confirm or refute the allegations of the plea, and show whether the officer's return is true or false; no basis for a judgment of the court upon those allegations.

Supreme Judicial Court of Massachusetts.

Supreme Judicial Court of Massachusetts. Hampden County.
September Term, 1856.

Argued and decided at Boston, in January, 1857.
Present: DEWEY, METCALF, BIGELOW, and THOMAS, JJ.

BOSTON DUCK Co. v. DEWEY.

Pleading.

An action for goods sold and delivered to the defendant, is not maintained by proof of a sale and delivery of goods to a third person, and of the defendant's promise to pay for such goods, although the statute of frauds be not pleaded.

R. A. Chapman, for plaintiffs.

W. G. Bates, for defendant.

BROWN v. MOOERS.

Evidence-Witness.

The declarations of a workman as to the ownership of personal property on which he is employed, made in the employer's absence, are not admissible in evidence against him.

Proof that a witness had made various contradictory statements, will not authorize the party calling him to introduce evidence of his general reputation for truth and veracity.

H. Vose, for plaintiff.

R. A. Chapman and F. Chamberlin, for defendant.

ELY V. ELY.

Deed - Erasure.

In an action to foreclose a mortgage, the burden of proof is on the plaintiff to show that interlineations, alterations, and erasures therein were made before or at the time of its execution, and there is no presumption that they were so made, or that they were made without fraud.

E. W. Bond, for plaintiff.

C. A. Winchester, for defendant.

HAYDEN v. Bradley.

Landlord and tenant.

No notice or demand is necessary before commencing an action on the covenant of a lessor to keep the building leased in repair. W. G. Bates, for plaintiff.

H. Vose, for defendant.

OSBORNE v. ATKINS.

Covenant of warranty - Damages.

Where one to whom land is conveyed with warranty, is evicted of an undivided part thereof by a paramount title, and threefold damages for cutting wood on the land are also recovered against him in an action of trespass brought by the owner of such undivided part, on Rev. Sts. c. 105, § 7, et seq., he cannot recover the amount of such damages in an action against his grantor on the covenant of warranty.

N. T. Leonard and C. A. Winchester, for plaintiff.
W. G. Bates, for defendant.

Middlesex County.

October Term, 1856.

[In these cases judgments were entered March 1st, 1857.]

Present: THE SAME JUSTICES.

KELLY v. PAGE.
Surety.

Where a surety on a bail bond purchases of the obligee a judgment, recovered by the obligee in scire facias on the bond against the co-surety, and brings an action on said judgment in the name of the obligee, he can recover of his co-surety in such action only half the amount of the judgment on scire facias.

B. F. Butler and I. S. Morse, for plaintiff.

D. S. Richardson and G. F. Richardson, for defendant.

VOL. IX. NO. XII. NEW SERIES.

59

One who purchases of a town the materials of a bridge forming part of a highway which has been discontinued, and suffers the materials to remain in the river, is liable to owners of land above for the damages occasioned by the consequent setting back of the water; and cannot show in defence of an action to recover such damages that he removed other greater obstructions in the river. [Argued at Oct. Term, 1855.]

B. F. Butler, for plaintiff.
J. G. Abbott, for defendant.

MCCABE v. BELLOWS.

Dower.

A bill in equity to recover dower under Rev. Sts. c. 60, § 2, cannot be maintained against the tenant of the freehold, and mortgagee in whose mortgage the plaintiff joined, without tendering the whole amount due on the mortgage.

Morse and Clarke, for plaintiff.

B. F. Butler, for defendant.

HARRINGTON v. INHABITANTS OF LINCOLN.

Witness-Evidence of compromise.

Cross-examination of a witness as to whether he has not been tried and convicted for a misdemeanor in another State, does not authorize the party calling the witness to introduce evidence of his general character for truth and veracity.

A party's admission to a third person of the amount which he had offered by way of compromise of the action, is not admissible in evidence.

B. F. Butler, for plaintiff.

C. R. Train, for defendant.

EMERY U. HAPGOOD.

Action.

A prosecutor who encourages an officer to execute a warrant valid on its face, but issued by a justice of the peace having no jurisdiction of the case, is liable in damages to the party arrested on the warrant. [Argued at Oct. Term, 1855.]

J. G. Abbott, for plaintiff.

B. F. Butler, for defendant.

1

BARKER V. STETSON.

Action.

One who makes a complaint to a magistrate who has not jurisdiction of the case, does not thereby render himself liable to a party arrested on a warrant issued on such complaint.

J. P. Converse, for plaintiff.

B. F. Butler, for defendant.

ROBBINS v. RICE.

Record of execution.

An execution for the possession of mortgaged premises issued on a judgment on a writ of entry to foreclose, is not good against bona fide purchasers without notice, who take before the execution is recorded pursuant to St. 1848, c. 144.

J. B. Robb, for plaintiff.

E. Buttrick, for defendant.

J. being indebted to B. gave him as security a deed absolute on its face, taking back a bond of defeasance, and afterwards and within six months of instituting proceedings in insolvency, and with the intention of giving a preference to F., to whom he was also indebted, and being then insolvent, as F. knew, gave up the bond to B., and B. conveyed the land to F., receiving payment from F. of the amount due B. from J. Held, that F. was thus constituted the assignee of the mortgage from J. to B., and could not therefore be compelled by action at law to give up the land to J.'s assignee in insolvency.

C. P. Judd, for plaintiff.

J. G. Abbott, for defendant.

The owner of land leased to a tenant at will for pasturage cannot maintain an action against a third person for damages occasioned to the land by causing water to flow upon it, without proving injury to his reversion.

E. F. Head, for plaintiff.

T. S. Harlow, for defendant.