judgment was then arrested, on the ground that debt should have been the form of action. Held, the plaintiff should not be allowed to amend by changing the form of action, under St. 1836, c. 273, § 3. Wiley v. Yale, 1 Met. 553.

15. Where one member of a firm gives a note in the name of the firm, partly for their debt and partly for his own, upon which an action is brought; the plaintiff may amend by filing new counts, embracing the partnership debt alone, and upon them recover such debt. But if, at the commencement of suit, the plaintiff knows that the note includes the private debt of one partner, he cannot amend without paying the defendants' costs, and taking none himself, up to that time. Barker v. Burgess, 3 Met. 273.

16. The plaintiff, owning sheep, which were injured by three dogs belonging to different owners, brought several actions against them, alleging in each that the sheep were worth $ 30, and in two of them recovered judgment. Held, in the other action, he might amend, by averring the value to be $50. - Capron v. Thompson,

Ibid. 59.

17. Declaration, that the defendant, designing to deceive, defraud and injure all persons who might purchase a certain note, procured a minor to indorse it, and then sold it to one who relied on the indorsement as valid. Held, a new count might be filed, omitting the fraudulent intent, and alleging, that, after procuring the indorsement, the defendant sold the note as and for a note on which the indorsement was made by a person of full age, effectual, and incapable of being avoided. Lobdell v. Baker, Ibid. 469.

18. A declaration by an assignee of land, on a covenant against incumbrances, may be amended by declaring on the covenant of warranty. Clark v. Swift, Ibid. 395.

B. Of returns.

1. The defendant in a writ of entry claimed the land sued for under an attachment made in November, 1833, prior to the recording of the deed from the debtor to the plaintiff, under which the plaintiff claimed. By mistake of the officer, this attachment was returned as made in November, 1834, after the registry of the deed; but the writ was dated in November, 1833, and judgment rendered upon it for the present defendant in June, 1834. Held, the return might be amended. - Johnson v. Day, xvii. 106.

2. But in case of such mistake, an amendment will not be allowed, after several years, the officer having made no minutes of his doings at the time of attachment. Hovey v. Wait, xvii. 196.

A. In criminal cases.

Appeal.

B. From the Probate Court.

A. In criminal cases.

1. By St. 1832, c. 130, § 3, one convicted in the Court of Common Pleas may in certain cases appeal to the Supreme Court, if the appeal is claimed in a convenient time before the rising of the court at which he is convicted, and if, within such time, he recognizes with sureties for his personal appearance at the Supreme Court, and the prosecution of the appeal; and such appellant shall be in custody until he so recognize, or is sentenced for want of such recognizance. Held, such person was not entitled to an appeal, unless he recognized within the stipulated time, although he remained in custody.- Commonwealth v. Brigham, xvi. 10.

2. Under this statute, a defendant must claim the appeal and recognize during the term when the verdict is rendered against him. Commonwealth v. Richards, xvii. 295.

3. By the Revised Statutes, c. 138, § 5, one convicted in the Court of Common Pleas may appeal, "if such appeal shall be claimed a convenient time before the end of the term at which the conviction is had; and such appellant shall be committed, to abide the sentence of the Supreme Judicial Court, until he shall recognize to the Commonwealth in such reasonable sum, and with such sureties, as the Court of Common Pleas shall order, with condition to appear at the court appealed to," &c. Held, an appellant must recognize in the Court of Common Pleas, and upon failing to do so, be committed provisionally, or until he shall recognize, to give him opportunity of procuring bail in vacation. Commonwealth v. Dunham, xxii. 11.

4. Held, unless the party recognize with sureties to the satisfaction of the court below, before its final adjournment, or appear and submit himself to the order of commitment required by the Statute, the appeal must be dismissed. — Ibid.

5. By Revised Statutes, c. 86, § 10, one convicted in the court below, of an offence punishable by hard labor for more than five years, may appeal to the Supreme Court. Held applicable to one convicted at the same term of three distinct larcenies, and therefore liable, as a common and notorious thief, to more than

five years' imprisonment, although not thus liable for either offence by itself. Commonwealth v. Tuck, xx. 356.

6. A party, having been convicted of an offence before a Justice of the Peace, appealed to the Court of Common Pleas, and was there again tried and convicted. A bill of exceptions was then filed, on the ground that the papers sent up from the Justice were not certified as copies, though this objection was not raised before the trial. Held, in the Supreme Court, that the objection was not waived by going to trial, that the verdict should be set aside, but that the case should be remitted to the Court of Common Pleas, in order that a new trial might be had, if the proper certified copies should be transmitted and filed. Commonwealth v. Doty, 2 Met. 18.

B. From the Probate Court.

1. A creditor of an heir at law cannot, merely as such, appeal from a decree allowing a will which devises reale state. Otherwise with a creditor, who, at the time of the decree and appeal, has attached the real estate as belonging to the heir. Smith v. Brad

street, xvi. 264.

2. It is not usual nor necessary, for an appellant from a Probate decree, to petition the judge to allow an appeal, or for the court to pass a formal decree to that effect.- Boynton v. Dyer, xviii. 1.

3. Upon such appeal, the appellant is restricted to the points stated in his reasons, but not to the arguments, views, or evidence presented in the court below. - Ibid.

4. On appeal from the Probate Court, this Court cannot exercise its general Chancery powers, but can render only such a decree as the Court below might have made. Grinnell v. Bax

ter, xvii. 383.

5. An appeal from the Probate Court, granted by the Supreme Court, under St. 1817, c. 190, § 8, on condition of the petitioner's giving bond for costs, &c., which he does, though not entered and prosecuted, vacates the decree. Paine, &c. v. Cowdin, xvii. 142.

Apprentice.

1. St. 1793, c. 59, § 4, authorizes overseers of the poor to bind out male children, "until they come to the age of twenty-one

years." Held, under this act, they could not bind out a child, until he should be twenty years of age. - Reidell v. Congdon,

xvi. 44.

2. By the same statute, the indentures shall provide for instructing a child "to read, write and cypher," and "for such other instruction, benefit and allowance, either within or at the end of the term, as to the overseers may seem fit and reasonable." Held, an indenture, merely covenanting to give the apprentice "the privilege of all the town school usually taught in the town," was void. Ibid.

3. St. 1793, c. 59, did not authorize overseers of the poor to bind out a child as an apprentice, unless the parent was actually chargeable to the town at the time, though he formerly received aid from the town, or unless they had adjudged or formed an opinion that the parent could not support the child. — Reidell v. Morse, xix. 358.

4. Before thus adjudicating, the overseers ought, if they were not bound, to notify the parent, that he might be heard upon the question. — Ibid.

5. It seems, an indenture of apprenticeship, founded on such adjudication, if duly made, though erroneous in fact, would be valid. — Ibid.

6. The indenture should recite the cause of the binding out. — Ibid.

7. In an action by the parent for the child's services, evidence is admissible to contradict a recital in the indenture, that the parent's being actually chargeable to the town was the cause of the binding out. Ibid.

8. The plaintiff, having an apprentice, placed him in the service of another person of the same trade, for a short time, upon wages to be paid to the plaintiff. During this time, the apprentice absconded and went to sea. Held, by the transfer, the plaintiff's claim to his services was suspended, and did not revive upon his absconding; and that the plaintiff could not recover his earnings in the voyage. Ayer v. Chase, xix. 556.

Arbitrament and Award.

A. Submission to arbitration.

B. Proceedings of arbitrators.

C. Award, form of, and objections to.

D. Ratification of, and remedy upon, an Award.

A. Submission to arbitration.

1. In an action which survives, the death of a party does not revoke the authority of a referee appointed by rule of court. Bacon v. Crandon, xv. 79.

2. Where an oral agreement is made to refer a matter to A. and B., with power to call in a third person in case of disagreement, and, at the same time or afterwards, a written submission to A., B. and C., the latter supersedes the former, and an award made by A. and B. is invalid.- Loring v. Alden, 3 Met. 576.

3. Where a written submission was made to the arbitration of three persons, two of whom made an award without calling upon the third, and in an action upon the award the plaintiff undertook to sustain it, on the ground that the parties varied the terms of submission by a subsequent agreement, that two of the arbitrators might decide the case; held, in the absence of evidence of such an express agreement, an implied agreement could be proved only by facts and circumstances which left no doubt. Ibid.

B. Proceedings of arbitrators.

Submission to the arbitration of three persons, whose award, or that of a majority of them, should be final. All the arbitrators met and heard the parties, but, after consulting together at different times, without agreeing, one of them told the others, that he should not sit with them again. The two others afterwards met and made an award, without requesting the attendance of the third, or giving him notice. Held, the award was valid. Carpenter v. Wood, 1 Met. 409.

C. Award, form of, and objections to.

1. A submission to arbitration included all demands between the parties, and authorized the referees, if they should find a balance due the defendant, to appraise certain chattels of the plaintiff, which the defendant was to receive in part satisfaction. The plaintiff was found indebted to a less amount than the value of the chattels, but, instead of appraising enough only to pay the debt, it was awarded that the defendant should take them, and pay the plaintiff in money the excess of their value over the debt. Held, the arbitrators exceeded their authority and the award was void. Culver v. Ashley, xvii. 98.