tiff as in good credit, and thus inducing him to trust such person for goods, whereby he sustained a loss. Read v. Hatch, xix. 47.

9. St. 1828, c. 112, providing for the surviving of actions for injuries to real estate, applies as well to those commenced after, as before, the death of the deceased party. Goodridge v. Rogers, xxii. 495.

10. Under St. 1828, c. 112, an executor might maintain trespass quare clausum for an injury to the testator's land, done in his lifetime.-Wilbur v. Gilmore, xxi. 250.

11. But, without this act, the provision in the Revised Statutes, c. 93, § 7, allowing such action, is constitutionally applicable to a trespass committed before it took effect; because it affects the remedy only. - Ibid.

12. In an action upon a promissory note, it appeared, that the real estate of the defendant was attached before the note was signed, but it was not intended that the writ should be used for the attachment of personal estate till afterwards; and personal estate was, in fact, attached after the note was signed. Held, the attachment of the real estate was the commencement of suit; and, as there was then no cause of action, both attachments were void. - Swift v. Crocker, xxi. 241.

13. The commencement of an action dates from the date of the writ, it having been previously filled out. Thus a demand is saved from the statute of limitations by the filling and dating of the writ within six years, though not served till after the expiration of that time. Gardner v. Webber, xvii. 407.

1

14. A subscription paper recited that a society was about to build a meeting-house, and had chosen a prudential committee, and that certain persons were willing to contribute towards the expense of purchasing land and erecting said house, and that the subscribers engaged to pay said committee or their order the sums affixed by them to their respective names. The defendant signed and affixed his seal to the paper, adding the words "ten shares, five hundred dollars." Three others subscribed five dollars each, but no house was built, nor were any shares ever made in any stock or property. Held, the defendant was not liable to an action by the society upon his subscription. - First Universalist, &c. v. Currier, 3 Met. 417.

Action on the Case.

1. Where A., a druggist, has invented, and compounds and sells, a certain medicine, if B. prepares an inferior medicine, applies

to it the name of the former, and sells it as and for the medicine of A.; A. may maintain an action against B., without proof of special damage. - Thomson v. Winchester, xix. 214.

2. But where A.'s medicines are designated by his name, as a generic term, descriptive of a kind or class, but he has no patent for manufacturing or selling them; he has no exclusive right to do it, and can maintain no action against B., merely for preparing and selling an inferior article under the same name, and thus impairing the reputation of all the medicines of this class. - Ibid.

3. Action for carelessly and negligently setting a fire on defendant's land, whereby the plaintiff's property upon adjacent land was burned. Held, it was immaterial whether gross negligence were proved, or only want of ordinary care, the measure of damages, in either case, being strictly limited to the actual loss sustained. Barnard v. Poor, xxi. 378.

4. The plaintiffs contracted with the owners of growing wood, to cut and carry it away at so much per cord, the wood to be measured by a sworn surveyor, and the plaintiffs also to have one half of the refuse wood. A large quantity having been accordingly cut and corded, but not measured according to contract, by reason of the defendant's negligently setting a fire on his adjacent land, the wood was consumed. In an action on the case against the defendant, held, the property in the corded wood had not vested in the plaintiffs, and the measure of damages on account of its loss was the value of it, deducting the price which they were to pay for it; that they had become owners of one half of the refuse wood, and were entitled to the value of that half; but that they could not recover for the profits which they would have made on the uncut wood, or for the counsel fees or other expenses, excepting the taxed costs, of prosecuting the action. - İbid.

Admiralty.

1. Trespass by a mariner against the master of a ship, for assault and battery and imprisonment on shore in a foreign port. The defendant sets up, as a bar, a judgment in admiralty against him, in favor of the plaintiff, for an assault and battery and imprisonment, alleged to have been committed, on the high seas, during the same voyage. Held, no bar to this action. Adams v. Haffards, xx. 127.

2. The plaintiff was found on shore by the mate, and imprisoned by him in pursuance of orders from the defendant on the high seas. The Court below instructed the jury, that if any part

of the acts which constituted this. trespass and imprisonment were committed by the defendant on board the vessel, the admiralty court had jurisdiction of the plaintiff's complaint. Held, the fact above stated was immaterial, and the instruction erroneous. Ibid.

Adultery.

1. It is adultery in a married man to have sexual intercourse with a single woman, whether the act is set up as a ground of indictment or of divorce. - Commonwealth v. Call, xxi. 509.

Advancement.

1. Where a son, receiving money of his father, gave his note for it, held, under Revised Statutes, c. 61, § 9, parol evidence that the money was an advancement is not admissible. &c. v. Rice, xxii. 508.

Barton,

Alien.

1. The real estate of an alien dying intestate vests at once in the State, without office found; and no title can be derived from him. Slater v. Nason, xv. 345.

2. Where an alien makes the preliminary declaration of his intention to be naturalized before the death of his wife, and completes his naturalization after her death; he is not entitled to curtesy. Foss v. Crisp, xx. 121.

3. By a United States Statute, April 14, 1802, the children of persons who then were or had been citizens, though born abroad, were declared citizens. Held, this provision included the child of one, who was a citizen after the treaty of peace and the adoption of the constitution. Charles v. The Monson, &c., xvii. 70.

Amendment.

A. Of writs and declarations.

a. As to parties.

b. As to causes and forms of action.

B. Of returns.

A. Of writs and declarations.

a. As to parties.

1. In a suit by an infant, the declaration alleges that he sues by guardian. Held, it might be amended by substituting prochein ami for guardian. Slater v. Nason, xv. 345.

2. Where, upon the writ in an action brought in the name of judge of probate upon an administration bond, there is an indorsement, stating that the suit is brought for the benefit of one A.; the Court will not, without consent of the defendant, allow an amendment by striking out such indorsement, in order that the action may proceed for the benefit of whom it may concern. Leland v. Loud, xvi. 233.

3. Action to recover damages, assessed for flowing lands by a mill-dam, against the owner of a mill at the time of assessment, and the occupant at the time of bringing the action, jointly. Held, the plaintiff might amend by discontinuing against the former.Fitch v. Stevens, 2 Met. 505.

4. By St. 1833, c. 194, "at any time before issue joined, on a plea of non-joinder of a party as defendant, in an action founded on debt or contract, the plaintiff may, on motion, be allowed to amend his writ and declaration, by inserting therein the name of any other person as defendant." Held, such amendment was allowable, where no plea of non-joinder had been filed. Goddard v. Pratt, xvi. 412.

5. In an action brought by A. and B., if it appear that A. alone is interested in the subject matter of suit, the Court may allow B.'s name to be struck out. Winsor v. Lombard, xviii. 57.

6. A writ of entry, brought by several demandants, some of whom have no claim, may be amended by striking out their names; and the others may thereupon recover the shares belonging to them. Thayer v. Hollis, 3 Met. 369.

b. As to causes and forms of action.

7. Action against an heir, upon the ground that a suit against the administrator was barred by lapse of time. The declaration alleged, that the administrator gave notice of his appointment, in the manner directed by the judge of probate, by his order remaining on record, but not the notice required by the statute; but, in fact, the notice ordered by the judge conformed to the statute, and the administrator's affidavit on record showed his compliance with the order. Held, the defect was merely formal, and that the plaintiff might amend, after verdict, without costs. - Valentine v. Farnsworth, xxi. 176.

8. Previously to the Revised Statutes, if a declaration contained two counts upon distinct causes of action, upon the first of which the plaintiff recovered a verdict, but the jury disagreed as to the second; the Court, before affirmation of the verdict, might allow the plaintiff to discontinue as to the latter, and render judgment in his favor upon the former. Hall v. Briggs, xviii. 503.

9. Declaration in trespass, for breaking and entering the plaintiff's close, and taking and carrying away his goods. Held, the plaintiff might amend, by filing a new count for taking, &c., the goods only. Bishop v. Baker, xix. 517.

10. A writ of entry alleged that A., the demandants' ancestor, was seised within twenty years, and the demandants were disseised by the tenant. Held, an amendment was allowable, that the demandants were seised, and the tenant within thirty years disseised them. Slater v. Nason, xv. 345.

11. But not an amendment, substituting a claim for the whole of a messuage, for a claim of two undivided sixths. Ibid.

12. The original declaration in a writ was for work, &c., and materials, and the specification was for the price of a carriage, sold and delivered. An amended count averred an agreement by the defendant to take and pay for a carriage to be built by his order. Held, the counts were for the same substantive cause of action, and the amendment was properly allowed.-Mizer v. Howarth, xxi. 205.

13. A declaration in an action of qui tam, embracing in one count a claim for several penalties for distinct breaches of the law, may be amended by filing counts for each violation. Mitchell v. Tibbetts, xvii. 298.

14. Trespass on the case, to recover threefold the amount of usurious interest taken by the defendant, and a verdict for the plaintiff. The action was continued, upon a motion for a new trial, until two years had elapsed after the cause of action accrued, and