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ant were joint owners, was immaterial, there being other evi. dence to prove the ownership of the surviving defendant. Bud

dington v. Shearcr, 22 Pick. 427. TROVER. (Demand.) If a purchase of goods is effected by

means of fraudulent representations on the part of the vendee, the vendor may maintain trover for the goods against the vendee, without a previous demand. Thurston v. Blanchard, 22

Pick. 18. 2. (Same.) So if the fraudulent vendee gives his own negotiable

note for the price of the goods, the vendor may maintain such action without a previous tender of the note, provided the note has not been negotiated but remains in his hands and is pro

duced at the trial to be surrendered to the defendant. Ib. TRUST. (General charity.) Where property was given by a

testator to a trustee for the purpose of maintaining public lectures, to be delivered in Boston, for the promotion of the moral, intellectual and physical instruction and education of the inhabitants of such city, without limitation as to time, and the testator provided for a perpetuation of the trust and for a perpetual succession of trustees, and prescribed a mode in which the accounts of the trust should be kept and audited, and without reference to the provisions of the probate laws, and appointed a perpetual board of visiters of such trust, it was held, that this was not a gift in trust for any person or persons, within the meaning of revised statutes, c. 69, § 1, it being for a purpose of general charity, and that the trustee was not obliged to give bond pursuant to such statute, before entering upon the execution of the

trusts. Lowell, Appellant, &-c. 22 Pick. 215. 2. (Creation of.) If A purchase land with B's money, and take

the conveyance in his own name, he holds the land in trust for B; and the land so held is liable for the debts of the cestui que

trust. Blair v. Bass, 4 Blackford, 539. 3. (Same.) Such a trust may be established by parol testimony,

even against the answer of the trustee. In such case, however, the bill must be supported not only by two witnesses, or by one witness and corroborating circumstances, but the testimony must be clear and should be received with great caution. 16.

4. (Same.) It cannot be shown by parol evidence, in order to es

tablish a trust in real estate, that the person having the legal title purchased the estate with his own money for the use of

another : that would be to overturn the statute of frauds. Ib. TRUSTEE PROCESS. (Negotiable security.) One summoned

under the trustee process, made answer, that certain negotiable notes had been left with him by the defendant for collection, and that he had given an accountable receipt promising to account for the proceeds to the defendant or bearer; that a part of the notes had been collected and was in the hands of the respondent at the time of the service of the writ; and that he had been called upon to pay the whole of the proceeds to one R., who produced the receipt, claiming to be the bearer. It was held, that the receipt was not a negotiable security, because not a promise to pay a certain sum; and as it did not appear that it had been duly assigned before the service of the trustee process, the respondent was charged as trustee. Fiske v. Witt and Tr.,

22 Pick. 83. 2. (Assignment.) Where a citizen of another state executed

therein an assignment of his goods there situated, to a citizen of Massachusetts, in trust for the payment of his creditors, most of whom lived in such other state, to which assignment the creditors were not parties, but which nevertheless, by the law of such other state, was a valid assignment, and the goods were never brought into Massachusetts, it was held, that the assignee was not liable to be charged there for the goods, on a trustee process sued out by one of the creditors, a citizen of Massachusetts.

Alden and Tr., 22 Pick. 245. 3. (Plea.) One summoned on a trustee process returnable in the

county of Suffolk, pleaded in abatement, that at the time of suing out and service on him of the writ, he dwelt in the county of Norfolk, and did not dwell in the county of Suffolk, and that at that time none of the parties then named in the writ as trustees, dwelt in the county of Suffolk. It was held, that the plea was not double, and that it concluded rightly with a verification. Hooper v. Jellison and Trs., 22 Pick. 250.

Wales v.

4. (Service.) The service of a trustee process on a trustee living

out of the county where the writ is returnable, is void or voidable, if the writ do not contain the name of a trustee living in the county where it is returnable, and the subsequent insertion of such a name before the writ is served on the principal defend

ant, will not cure the defect. Ib. 5. (Doubt.) It seems, that the rule that one summoned under the

trustee process is to be charged as trustee if he leaves it doubtful whether he has goods, effects or credits of the principal defendant, is to be applied only to the case where, upon some part of his answers which he fails to explain, he appears prima facie to have such goods, effects or credits in his hands.

Shearer v. Handy, 22 Pick. 417. WAGER. If goods be won on a wager respecting the result of

a presidential election, and be delivered to the winner, the loser cannot, either at common law or under our statute, sustain an action against the winner for the price of the goods. M Hatton

v. Bates and another, 4 Blackford, 63. 2. Such a wager is illegal, and if the goods be not delivered to the

winner, he is without remedy. Ib. WITNESS. (Competency.) Although the effect of a husband's

testimony may be to increase a fund given to trustees for the use and benefit of his wife, and the income of which is to be paid over to her for her sole use and upon her own receipts under her hand, he is not therefore an incompetent witness, his

interest being contingent. Dyer v. Homer, 22 Pick. 253. 2. (Indian.) An Indian is not a competent witness under the sta

tute of the state : but the supreme court cannot presume that a witness, admitted as competent in a circuit court, was an Indian, merely because he was the principal chief of an Indian nation.

Harris v. Doe d. Barnett and another, 4 Blackford, 369. 3. (Impeachment of.) If a witness be impeached by proof of his

having previously made statements inconsistent with his testimony,


may be corroborated by evidence of other statements made by him in accordance with his testimony. Otherwise, if he has not been thus impeached. Coffin v. Anderson, 4 Black. 395. VOL. XXIV.NO. XLVII.


4. (Maker of note.) The maker of a promissory note is a com

petent witness for the plaintiff, in an action by the assignee against the assignor, involving the validity of the consideration of the note. Fosdick v. Star

Fosdick v. Starbuck, 4 Blackford, 417.




On the 29th of January, the governor of Massachusetts, under the provisions of the 2d section, 4th article of the constitution of the United States, made a requisition upon the governor of Maine, to deliver up two persons alleged to be fugitives from the justice of that state and then residing in the latter. The agent authorized to receive them, exhibited a copy, duly authenticated, of an indictment found against them in the municipal court of Boston, for a conspiracy to cheat, and obtaining goods by means of false and fraudulent pretences. The governor of Maine, thereupon, in pursuance of the directions of statute March 20, 1838, instituted an investigation; and satisfactory proof being produced, that the persons ged were fugitives from stice, a warrant was issued for their apprehension. But one, however, was arrested, and he, the same day, made his escape ; and had not been retaken at the time of this hearing.

In this stage of the case, several of the citizens of Thomaston sent a petition to the governor, asking that the warrant might be recalled,—whereupon a day was fixed and due notices issued, for a hearing of all concerned upon this application.

At the hearing, which was on the 26th of February, the honorable John Holmes appeared as counsel for the accused, and Jonathan P. Rogers and Henry C. Lowell, esquires, against them. Much evidence was introduced on both sides, having a supposed bearing on the question of the alleged fleeing from justice, after which the case was elaborately and ably argued by Messrs. Holmes and Rogers.

The following is a sketch of the opinion of governor FAIRFIELD, written out since its delivery :

There being no question in my mind in regard to the power to recall the warrant which has been issued in this case, should circumstances justify it, I acceded readily to an application for a

hearing of the parties, inasmuch as the first examination was, as such cases must generally be, ex parle, and because, notice to the accused cannot now cause what at first it might have induced, the escape of the prisoners. Questions are also frequently occurring under this provision of the constitution, and I was glad to avail myself of the light which other and abler minds could shed on a subject involving difficulties of great moment, and which, it is feared, when presented in cases relating to a peculiar species of property, may have a tendency to disturb the harmony of the union.

The words of the 2d section of the 4th article of the constitution of the United States, are as follows: “A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on the demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime."

The constitution, of which the foregoing is a section, I took an oath to support, when entering upon the discharge of my official duties, and if the warrant in this case properly issued, no considerations addressing themselves to the feelings merely, should have any weight in inducing its recall.

An objection to the exercise of this power on the part of the executive, has been drawn by the counsel for the accused, from that provision of the constitution of this state, which secures, to the accused, " in all criminal prosecutions," the right to a trial “by a jury of the vicinity.” The term “ vicinity” in this place I have always regarded as applying to the place where the offence was committed, rather than to the residence of the offender. And in this view, if the provision had any applicability to the case, it would seem to defeat the position in support of which it was cited. But I apprehend it is clear, that this provision was intended to apply solely to offences committed within the jurisdiction of this state, and prosecuted in our own courts. If it was designed to go farther than this, and to contravene the provision of the constitution of the United States before cited, it would of course be entirely nugatory, the latter being the paramount law.

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