10. So, an extent upon all the interest and estate of the husband in land of the wife passes all his interest, however acquired, though the return does not describe the land as held in right of the wife. Ibid.

11. A husband's interest in land of the wife may be levied on, either by taking the rents and profits for a certain time, or the whole estate at an appraisal founded on the probable duration of his life. Ibid.

12. But, where the amount of the execution is less than the value of the estate, it seems, the former mode of levy is the proper, if not the only legal one. Ibid.

13. An execution was extended upon land held by the debtor in right of his wife, as upon an estate in fee simple, but no entry was made, and husband and wife continued to occupy till she died, leaving no children. Held, the proceeding was no disseisin of the wife, and her heirs might maintain a writ of entry, declaring upon their own seisin, without an actual entry. - Larcom v. Cheever, xvi. 260.

14. The husband having erected buildings on the land during the life of the wife, held, neither he, after her death, nor the creditor, could make a claim for betterments, as against the heirs. -Ibid.

15. Conveyance by a husband, in his own name, of his wife's land, she merely signing and sealing the deed "in token of her relinquishment of all her right in the bargained premises." Held, her interest did not pass, and, after his death, she might maintain a writ of entry for the land, on her own seisin. Bruce v. Wood, 1 Met. 542.

16. By St. 32 Hen. 8, c. 28, no act by the husband only shall make any discontinuance of the wife's inheritance or freehold, but she and her heirs, &c., may lawfully enter thereupon according to their rights. Held, this statute is part of the common law of Massachusetts. Ibid.

17. Conveyance, executed prior to the Revised Statutes, to husband and wife for their lives and the life of the survivor, and to the heirs of their bodies. Held, they took an estate tail. Steel v. Cook, 1 Met. 281.

b. To personal estate.

18. Where personal property descends to a married woman, and her husband dies before the decree of distribution, and before doing any act to take possession of it; she holds by survivorship. Hayward v. Hayward, xx. 517.

19. A., a married woman, lent the interest, accruing after, upon a note held by her before, her marriage, and took therefor a note made payable to her, in compliance with the wish of B., her husband, that it might be her exclusive property, B. often stated, that the money, as well as the interest thereon, belonged to her alone, and that he did not mean to claim or receive any part of it; but he also stated, that there had been no agreement on the subject between him and A. B. having died, and A. having kept possession of the note, the maker paid it to her. Held, she was not liable for the amount to B.'s executor. Phelps v. Phelps,

xx. 556.

20. B. devised to A. his real estate for life, in lieu of dower, and on condition that she should claim no property as her own from his estate, and allow all which she had usually considered as her private property to be distributed as the other parts of his estate. After his death, A. remained in his house, another person occupying a part of it for five months with her permission, but did not claim the house. Held, as by the Revised Statutes, c. 60, § 6, A. might occupy the house with the heirs of B., so long as they did not object, she did not, by the above acts, accept the devise, and relinquish her claim to the money. - Ibid.

21. If a creditor of a husband attach by the trustee process the wife's distributive share in an intestate estate, and the husband die before judgment, she will hold the property, discharged of the lien. Strong v. Smith, 1 Met. 476.

22. A husband may maintain an action in his own right, after the death of his wife, for a legacy given her during the coverture. Hapgood v. Houghton, xxii. 480.

23. The holder of a note bequeathed to his daughter, her heirs and assigns, all the money due from the maker, her husband, appointing him executor. The husband inventoried the note, and in his account charged the legacy as paid, and the charge was allowed. Afterwards, being insolvent, in consideration of the delivery of the note to him, he conveyed his real estate to a trustee for the use of his wife. Held, the legacy was not a chose in action, and vested immediately in the husband; that, if it were a chose in action, he had reduced it to possession; that the note was extinguished before the deed was made; and that the deed was therefore without consideration, and void as to prior creditors of the grantor. Peirce v. Thompson, xvii. 391.

24. The holder of a note bequeathed to his wife all the income or interest of his personal estate, and his administrator, from time to time, paid her from the estate the amount of such income, not taking any receipt therefor; but nothing was received upon the note till after her death, when it was paid to an administrator de

bonis non. The wife's executor then brings an action against the administrator, for the interest upon the note from the testator's death to that of the wife. Held, the payments, made to the widow by the original administrator, were not admissible as evidence of payment of such interest; that the re-delivery of the note by her, after the original administrator indorsed it to her, was not evidence of an intent to relinquish such interest; and that evidence of fraud on the part of the widow and the original administrator, who was also her residuary legatee, for the purpose of defeating the rights of those claiming under the will of her husband, was not a defence to such action. George v. Cushing, xvii. 448.

C. Claims and liabilities of, and actions between, by or against, husband and wife.

1. Where a way appurtenant to a wife's land, which is occupied by her and her husband, is obstructed; they may join in an action on the case therefor. Cushing v. Adams, xviii. 110.

2. It is sufficient, after verdict, for the plaintiffs to allege, that they were seised of the land in their demesne as of fee in her right. Ibid.

3. Upon a bill in equity by husband and wife for a legacy due her, it seems, he may be required to make a suitable provision therefrom for her. Sawyer v. Baldwin, xx. 378.

4. But the court will not so require, where the testator, though acquainted with the husband, did not provide that the legacy should be paid to her separate use, and it is not suggested, that he had changed in character or become improvident since the testator's death, and the wife desires that the legacy be paid to her husband, and not secured to her. Ibid.

5. A husband may have a writ of habeas corpus, to obtain possession of a child from the wife. Commonwealth v. Briggs, xvi. 203.

6. And in case of a separation, without justifiable cause, of the wife and child from the husband, the court will restore the child to him, unless he be clearly proved unfit for the charge. — Ibid.

7. For cutting trees upon land held by husband and wife in her right, he may bring trespass either in his own name or in the names of both, at his election. Allen v. Kingsbury, xvi. 235.

8. The husband of the defendant's intestate was a non compos,

living in the almshouse, apart from her; she held real estate in her own right, his interest in which the husband had transferred to a stranger. Under these circumstances, the plaintiff supplied the defendant's intestate with necessaries. Held, neither she nor the defendant was liable, either upon an express or implied promise. -Shaw v. Thompson, xvi. 198.

9. A married woman, living apart from her husband, may be indicted alone, and punished, for keeping a house of ill-fame.Commonwealth v. Lewis, 1 Met. 151.

Encest.

Indictment for a rape upon the daughter of the defendant. The jury found a criminal connexion, but that it was not by force, and against her will. Held, he might be convicted of incest, under Revised Statutes, c. 137, § 11. Commonwealth v. Goodhue, 2 Met. 193.

Endians.

The provision of St. 13 Wm. 3, c. 20, that all conveyances of land obtained from the Indians, without license of the General Court, shall be void, applies only to lands in which the aboriginal right of occupancy has never been extinguished; and a purchase from an Indian, without such license, of a lot in an old settled town, is valid, unless he be proved to have held the aboriginal right of occupancy. Clark v. Williams, xix. 499.

Endictment.

A. What allegations are necessary, and what parties may be joined, in an indictment.

B. Evidence upon an indictment.

C. Proceedings upon an indictment.

D. Indictment after a former indictment.

A. What allegations are necessary, and what parties may be joined, in an indictment.

1. An indictment against a person as a common seller of spiritous liquor, to be used in his house, &c., without authority or license, need not allege him to be an innholder or common victualler. Commonwealth v. Pearson, 3 Met. 449.

2. By Revised Statutes, c. 47, § 3, no person shall presume to be a retailer or seller of spiritous liquors in a less quantity than twenty-eight gallons, without a license as a retailer. Held, one act of sale was a violation of this statute. Commonwealth v. Thurlow, xxiv. 374.

3. Hence, an indictment must allege a sale at a certain time and place, to a person named or unknown. It is not sufficient to allege, in the words of the statute, that the defendant presumed to be a retailer, &c. Ibid.

4. It must be alleged, that the defendant was not duly licensed; and, as this negative averment may be easily proved by the records of the county commissioners, the government is bound to offer prima facie evidence of the fact. Ibid.

5. An indictment under Revised Statutes, c. 47, § 2, need not allege, that less than twenty-eight gallons of liquor was sold by the defendant. Commonwealth v. Churchill, 2 Met. 118.

6. Indictment under § 1, c. 130, of the Revised Statutes, against an unmarried man, for adultery with a married woman. Held, it need not be alleged, that he knew she was married. Commonwealth v. Elwell, 2 Met. 190.

7. The Revised Statutes, c. 127, § 15, provide the punishment of imprisonment for life, against any person having in his possession ten or more pieces of counterfeit coin, with the criminal intent to utter them as true. By § 16, any person having less than ten pieces shall be imprisoned not more than ten years, &c. Indictment, charging the possession of more than ten pieces. Proof, of less than ten. Held, the defendant might be convicted and sentenced under the 16th section. Commonwealth v. Griffin, xxi. 523.

8. An indictment under St. 1804, c. 120, § 2, for having in possession ten or more counterfeit bank-bills, must allege possession of them at the same time. On the same day is not sufficient. Edwards v. Commonwealth, xix. 124.

9. An indictment under § 4 need not have alleged an intent to pass a counterfeit bill "as true," but only possession thereof