7. By the Revised Statutes, c. 146, § 5, proceedings in suits, pending when the former statutes were repealed, are to be conformed to the Revised Statutes. Held, this provision applies to a scire facias against trustees. Burnside v. Newton, 1 Met.

426.

8. Where a trustee is charged upon his answer, by consent, in the original suit, he may, upon scire facias, make such additional answers, even relating to facts which existed at the time of the former answer, as are necessary or proper for his defence. But, if he offer the new answer, after long delay and the accumulation of costs, it will be received only upon the terms that he pay the costs of the scire facias, and recover no costs if he finally prevail. - Ibid.

Unlawful Games.

The game of bowls and nine-pins is an unlawful game, within the meaning of the Revised Statutes, c. 50, § 17. Hence, one not licensed as an inn-holder, &c., is liable to indictment, if for hire, gain, or reward, he suffer persons to resort to a building actually used or occupied by him, for the purpose of playing at bowls and nine-pins. Commonwealth v. Goding, 3 Met. 130.

Usage.

1. An ambiguity in a written agreement may be explained by evidence of custom. Shaw v. Mitchell, 2 Met. 65.

2. Where an indorser is often at a bank, upon business, and often pays notes there, the law presumes him to be acquainted with a usage of such bank, by which the makers of notes are called upon to pay them at the bank, instead of having the notes sent them for payment. Shove v. Wiley, xviii. 558.

3. The plaintiffs, commission-merchants in Boston, bring an action to recover back money paid by them to the defendant, on account of goods which he consigned to them, which they sold to a trader in Salem, but the latter failed to pay for. Held, the plaintiffs might offer in evidence a usage to the following effect, namely; that factors in Boston give six months' credit; that, upon a sale on credit, the amount is immediately credited to the principal, and, upon insolvency of the purchaser, charged back to the principal, unless the factor has been guilty of negligence; that factors delay calling upon country purchasers (those in Salem be

longing to this class) in good credit, for one, two or three months after the debt is due; that they do not drive such purchasers, but charge them with interest; and do not notify the principal of nonpayment at maturity. — Dwight v. Whitney, xv. 179.

Usury.

1. In an action upon a note payable in one year, "" with nine per cent interest"; the forfeiture to be deducted, under Revised Statutes, c. 35, § 2, is three times nine per cent for one year, or threefold the amount of the whole interest reserved. Sumner v. Williams, 1 Met. 398.

2. The inception of a note, payable to the order of the promisor and indorsed by him, is the indorsement. Hence, in a suit thereupon by the first indorsee, usury being set up as a defence, it is a correct instruction to the jury, that, if they believe the note was usurious in its inception, they are to deduct the forfeiture of threefold the interest reserved. Little v. Rogers, 1 Met. 108.

3. The only remedy, to recover back threefold the amount of excessive interest paid, is an action of debt or bill in Equity under section 3, c. 35, of the Revised Statutes. Trespass on the case does not lie.Wiley v. Yale, 1 Met. 553.

4. Where one receives a note by indorsement, to secure a usurious contract between him and the maker, for whose accommodation the note is indorsed; the usury is a good defence to a suit by the indorsee against the indorser. - Dunscomb v. Bunker, 2 Met. 8.

5. In an action upon a note made and negotiated in another State, the law of that State is to determine whether such note be void for usury.

Ibid.

6. By the law of New York, a note, though given for no more than the amount of money lent, is usurious and void, if, at the time of the loan, the borrower agreed to pay more than legal interest. Ibid.

7. Where something besides interest, as such, is allowed on a loan and forbearance of money, it is a question for the jury, whether the contract was fairly and honestly made, or whether it was a cover for Stevens v. Davis, 3 Met. 211.

usury.

8. The holder of a note, which the maker could not pay at maturity, proposed to borrow the money at ninety days, if the maker would agree to pay at that time, but told the maker that the loan would cost so much, and that he ought to pay that sum or a part

of it. To this the maker assented, and afterwards paid the holder $7, being a part of what the holder alleged that he had paid for the loan. In a suit upon the note, the jury were instructed, that, if the representation of the holder to the maker, by which the $7 was obtained, was truly and fairly made, and if the holder in fact paid that sum or more to procure the loan, then the taking of that sum from the maker was not usurious. Held, a correct instruction. Ibid.

Verdict.

1. A verdict in a former action, which, before St. 1836, c. 273, abolishing special pleading, might have been pleaded as an estoppel, may now be given in evidence, with the same effect. Sprague v. Waite, xix. 455.

2. Where A. brings trespass against B., who prevails in the suit, and A. afterwards sues C. for the same trespass, the former verdict is not conclusive evidence in favor of C., though it would be in favor of B. Sprague v. Oakes, xix. 455.

3. Where all the counts in a declaration are for the same cause of action, but some of them defective; a general verdict for the plaintiff may be applied to the good counts. Payson v. Whitcomb, xv. 212.

4. Where a verdict, which is decisive of the case, is found on one or more of several issues, and the jury disagree as to another issue; the prevailing party may waive the other issue, or consent to a verdict against him thereupon. - Inhabitants of Sutton v. Inhabitants of Dana, 1 Met. 383.

5. Where upon an indictment containing two counts there is a general verdict of guilty, and one of them is sufficient to sustain such verdict, and the other not; this is no ground for a writ of er- Jennings v. Commonwealth, xvii. 80.

ror.

6. Where the amount of damages is determined by no legal rule, and does not depend on computation, it is a question for the jury and not for the Court; unless the former award a sum so excessive, as to warrant the belief of partiality, prejudice, or a mistaken view of the merits. (See New Trial, B.)- Worster v. Canal Bridge, xvi. 541.

7. A special verdict found the defendant guilty, but not in the county stated in the indictment. Held, bad. Commonwealth v.

Call, xxi. 509.

8. Such verdict is not an acquittal, but the party must be tried

9. An indictment alleged, that certain goods of A. had been burglariously stolen, and the defendant received them, knowing them to be stolen. Verdict, finding the defendant "guilty of receiving and aiding in concealing stolen goods, knowing them to have been stolen, but not knowing them to have been burglariously stolen." Held, this was a special verdict, upon which no judgment could be rendered, because it did not find that the defendant had received the goods described in the indictment. — Dyer v. Commonwealth, xxiii. 402.

Vote.

1. After town-assessors have made a general assessment, and committed it to the collector, and before another tax is committed to them to assess; they cannot assess a tax upon an individual, in order to qualify him to vote at an election; nor will payment of such tax qualify a person, under article 3, of the amendments to the constitution.xviii. 575.

A.

2. Action against selectmen, for refusing to receive a vote. The following facts were proved: At the election, A., one of the defendants, stood in front of a table, on which was placed the ballot-box, took the votes, as presented, and, finding the names upon the check-list, deposited the votes in the box. When the plaintiff came to vote, A. offered to take the vote in his hand, as he had uniformly done, but the plaintiff demanded the box, which was upon the table, that he might himself deposit the vote. refused compliance with this demand, and reached towards him another box, used for votes on former occasions; but the plaintiff refused to deposit his vote therein. By the Revised Statutes, c. 4, § 4, no vote shall be received, unless deposited in the ballot-box by the voter in person. Held, the box last named was the ballot-box, within the meaning of this act, and therefore, in the absence of any malicious design to deprive the plaintiff of his rights, there was not an unlawful refusal to receive his vote. Gates v. Neal, xxiii. 303.

3. The admission of illegal votes does not avoid an election, unless the majority was thereby changed. First Parish, &c. v.

Stearns, xxi. 148.

-

4. Several illegal votes having been received in the election of parish officers, many legal voters protested against it, and withdrew without voting; but a majority of the legal voters, who remained and voted, cast their votes for the persons afterwards declared to be chosen. Held, a valid election. - Ibid.

5. By Revised Statutes, c. 14, in the election of county commissioners, the voters of each town shall bring in their written votes on one ballot for three commissioners, all of different towns, and not more than one shall be chosen from one town. Held, the names of the towns where the candidates lived need not be expressed on the ballots; and that a candidate was legally elected, though he had not a majority of votes, without counting both those which contained only his name, and those which also mentioned the town to which he belonged. -Strong, &c. xx. 484.

Warranty.

1. The defendant conveyed to the plaintiff, with warranty, a woodlot, which had been previously conveyed in like manner by A. to B. and C. In an action upon the warranty in the plaintiff's deed, held, A. was a competent witness to prove that he entered on the land as agent of B. and C., for the purpose of evicting the plaintiff. Burrage v. Smith, xvi. 56.

2. A. was the agent of B. and C., the real owners of the paramount title, in the care of the wood-lot, and authorized to cut wood upon it, which he accordingly did, in the absence of the plaintiff; but he had no power of attorney or written authority from B. and C., and no special authority from them to oust the plaintiff, nor did he avow this as the object of his entry. Held, this was sufficient proof of an ouster of the plaintiff by the paramount title, and of a breach of the defendant's covenant. Ibid.

3. The plaintiff alleged such entry and proved it, but not that A. gave him notice of it, or that he, the plaintiff, notified the defendant of his eviction by paramount title, to which he had yielded or proposed to yield. Held, it would be presumed, that the plaintiff knew of the entry before the suit was brought, and that such evidence was unnecessary. Ibid.

4. A., having agreed to procure and deliver to B. the note of C., indorsed by two other persons, wrote to B. as follows, “I enclose you the note of C.'s, as proposed, which you will please pass to my credit." Held, equivalent to a warranty of the genuineness of the indorsements upon the note. Coolidge v. Brigham, 1 Met. 547.

5. Either heirs or grantees, &c., are jointly chargeable as assigns, upon a covenant of the ancestor or grantor which runs with the land. Morse v. Aldrich, 1 Met. 544.