6. Where one recognized with sureties, to keep the peace and appear at the Municipal Court to answer to such things as should be objected against him, and he kept the peace, but did not appear to answer to an indictment, whereby he forfeited his recognizance; this Court, in the exercise of its discretion, reduced the forfeiture to such a sum, as it would have been reasonable to require of the principal, in a recognizance to answer only to the offence, for which he was indicted. - Ibid.

7. Debt upon a recognizance, against a surety. The declaration alleged, that, ou May 19th, 1832, the principal and surety entered into a recognizance before the Police Court of Boston, conditioned that, if the former should appear before the Municipal Court, to answer to such matters and things as should be objected against him on behalf of the Commonwealth, but more especially to the complaint of C. H., made on oath before the Police Court, on May 19th, 1832, for stealing from the person of C. H. a pocket-book and its contents, of the value of $27.25, then the recognizance should be void, otherwise, to be in full force; that the recognizance was in pursuance of an order of the Police Court, on the hearing of a complaint against the principal for felony, and was thereupon duly returned to the Municipal Court; that the principal there made default, which was duly recorded, and the recognizance thereupon estreated and filed of record in the Court of Common Pleas, with the exemplification of the record of the Municipal Court, in order that it might be put in suit ; that all these proceedings appear by the records of these courts; and thereupon an action accrued to the Commonwealth against the surety. Demurrer, on the ground that the declaration and recognizance did not show the pendency of any process in the Police Court for an offence within its jurisdiction, and such proceedings as authorized the taking of the recognizance, or that the principal was brought before that court for examination or trial and put to plead to the complaint, or did plead thereto, or that the court considered that there was probable cause to believe him guilty of an offence within the court's jurisdiction, and therefore ordered him to recognize. Held, the declaration was sufficient. - Commonwealth v. Bail, &c. xv. 193.

Record.

1. If a justice of the peace dies after rendering a judgment, and before making up a formal record, his original minutes, embracing every thing material that would have been included in the record, may be used upon an appeal. - Davidson v. Slocomb, xviii. 464.

2. If by the death of the justice the appellant is prevented from producing in Court a copy of the whole case attested by him, according to St. 1783, c. 42, § 6, a sworn copy may be used. Ibid.

3. A paper belonging to the files of the court cannot be regularly withdrawn from the clerk's office, without leave of court. French v. Neal, xxiv. 55.

4. Action upon a promissory note, on which the plaintiff had previously brought another suit, and failed in a trial upon the merits. The note, being offered in evidence in that trial, was placed on the files of the court. Held, the plaintiff should not have leave to withdraw it for the purposes of the second suit.

Ibid.

5. Action of debt upon a judgment, brought by S. B. junior. The declaration set forth the record of a judgment in favor of S. B., but the record produced showed a judgment recovered by S. B. junior. Held, a variance. - Boyden v. Hastings, xvii. 200.

Release.

1. A release of one joint promisor, in order to discharge another, must be a technical release, made by a sealed instrument. Shaw v. Pratt, xxii. 305.

2. A., holding a note signed by B. & C., gave to B. an unsealed writing, stating that, in consideration of the transfer of certain notes to him by B., he thereby agreed to discharge the joint note so far as B. was liable thereon, except that such writing should not operate to affect an action commenced by him against C. Held, this was no release of C. Ibid.

3. The note was payable by instalments, a part of which were not due at the time of the transfer, and the notes transferred were also not due. Held, the latter notes should be applied in payment of instalments not due, not of those sued for in the above-named action. Ibid.

4. Where an instrument is to be executed by various persons, standing in various relations to, and holding different claims against, the party who receives it; general words of release, though the most comprehensive, will be restricted to particular demands, if the consideration, the recital, and the nature and circumstances of the claims, to one or more of which the release is proposed to be applied, clearly show an intention thus to restrict it. -Rich v. Lord, xviii. 322.

5. A mortgagor of land assigned his property upon the trust, that the assignees should first pay certain debts in full, including one for which the mortgagee and one of the assignees were liable as sureties, but not secured by the mortgage, and then the claims of other creditors who should become parties, pro ratâ. Incorporated with the assignment was a schedule of the property, describing the real estate as subject to the mortgage, and also a schedule of the unpreferred creditors, in which the mortgagee was not named. There was also a release by the creditors of "all and singular their several claims and demands against him, of every name and nature," and the instrument was executed by the mortgagee. Held, this did not discharge the mortgage debt. Ibid.

6. Assignment for the benefit of creditors, "a schedule and estimate of the amount of whose several debts is hereunto annexed; with a release by creditors of "all sums of money due and owing or to become due to them respectively," "and also all their respective claims and demands whatsoever." The schedule stated the name and exact amount of one of the claims of a creditor, but did not include a note recently made to him by the debtor as principal, and a third person as surety. Held, such creditor did not, by signing the assignment, discharge such note. Averill v. Lyman, xviii. 346.

7. Action by A. against B. & C. upon their joint and several note. B. was defaulted, and C. set up as a defence an agreement with A., before maturity of the note, by which A. discharged him from one half the debt, upon his then paying the other half, and taking from A., at par, the note of one D., indorsed without recourse to A. Held, a good defence, but that under St. 1834, c. 189, judgment should be rendered against B. Goodnow v. Smith, xviii. 414.

8. A release of "all the right, title, or interest" which the releasor "has or may have in or unto the estate of his father, whether the same may fall to him by will or heirship," includes future rights to be acquired by him; and a covenant, never to make claim to "the premises," is a covenant never to make claim to the estate of his father. Trull v. Eastman, 3 Met. 121.

9. A release by an heir apparent of his expectancy, with a covenant that neither he, nor those claiming under him, will ever claim any right in the same, if made fairly and with the ancestor's consent, is a bar to the heir's claim thereto, by descent or devise, after the ancestor's death. The covenant runs with the land, and protects the covenantee's heirs and assigns. - Ibid.

Remainder and Reversion.
(See Devise, &c.)

"the

1. Devise of real estate to the testator's wife for life remainder of his estate, whether real or personal, in possession or reversion, to his five children, to be equally divided to and among them or their heirs respectively, always intending, &c., that none of his children shall dispose of their part of the real estate in reversion, before it is legally assigned them." Held, the children took a vested remainder in the real estate devised to the wife for life, and that the restriction upon their right of alienation was void. Hall v. Tufts, xviii. 455.

2. Devise, of the use and improvement of one third of all the testator's real and personal property, to his wife for life; and at her decease to his children, their heirs and assigns. Held, the children took a vested remainder in the real estate, as tenants in Nash v. Cutler, xvi. 491.

common.

-

3. Devise:· "I give to my sons, for the term of ten years after my decease, the improvement and income of my tavern farm," &c." Item, I give, &c., to my grandchildren, the sons and daughters of my said sons, after the expiration of ten years from my decease, all those lands and tenements which I have now given the improvement of for ten years as aforesaid to my said sons, to have and to hold to them their heirs and assigns forever." Held, a vested remainder was hereby created in the grandchildren who were living at the testator's death, subject to open and let in those born afterwards, whether before or after the termination of the particular estate; and that the share of a grandchild living at the testator's decease, but who died during the continuance of the particular estate, descended to his father, as heir. - Ballard v. Ballard, xviii. 41.

4. Devise to the wife of the testator, of the use of his real estate, while she should remain his widow. "Should my wife marry or die, the land then shall be equally divided among my surviving sons, with each son paying sixty dollars to my daughters, to be equally divided among them, as soon as each son may come in possession of said land." Held, the remainder given to the sons was contingent, till the marriage or death of the widow; and, upon her death, the estate vested in a son, then living, to the exclusion of the heirs of another son, who died before the widow, but after the testator. Olney v. Hull, xxi. 311.

5. Devise to the wife of the testator, in 1807, of the improvement of his real estate, and the income of one third of his personal property, for her widowhood, and no longer; and, if she

should again marry, one sixth of his personal property to her, absolutely. Two thirds of the personal property were bequeathed to the children; and no further disposition of property was made by the will. Held, by St. 1805, c. 90, immediately upon the testator's death, the reversion in the real estate descended to his surviving children, who also at the same time took one third of the personal property, subject to the bequest to the widow. Russell v. Hoar, 3 Met. 187.

6. A reversion, expectant upon an estate tail, is a vested interest, devisable, and which will pass under a general residuary clause. Steel v. Cook, 1 Met. 281.

7. If limited by way of executory devise, upon the contingency of issue by a future marriage of one of the tenants in tail, the residuary devisee of the reversion may grant it to a third person, subject to the executory devise. — Ibid.

8. A reversioner cannot maintain trespass, for waste committed under authority from a tenant in dower. Shattuck v. Gragg, xxiii. 88.

9. Where land is leased for years, and the reversion is conveyed, absolutely, or by mortgage; the grantee is entitled to all subsequent rents, and may bring an action therefor against the tenant. Otherwise, of rents due and in arrear at the time the reversion was conveyed. Burden v. Thayer, 3 Met. 76.

10. If the grantor of a reversion assigns to the grantee rents due and in arrear, the grantee cannot sue for them in his own name. Ibid.

11. By the St. 4 Anne, c. 16, § 4, grants of reversions were made valid, without attornment. Held, this act is in force in Massachusetts. Ibid.

Replevin.

1. A writ of replevin was framed, according to the form prescribed by the repealed statute, 1789, c. 26; and the officer served it as therein directed, taking and returning a bond from the plaintiff to the defendant, with only one surety, and in a certain sum, without having the goods appraised, &c., according to Revised Statutes, c. 113. At a term subsequent to the return term, the defendant, having appeared at the return term, moves to dismiss the action. Held, the motion should be overruled, and the case proceed to trial; the bond being valid at common law, and the court having jurisdiction of the parties and the subject matter. Simonds v. Parker, 1 Met. 508.