the detention thereof, at one thousand and sixteen If the sheriff suffers or permits a prisoner to escape, this, both in common parlance and legal Intendment, is an escape with the consent of the sheriff. The object of the act is, to make the sheriff responsible for a voluntary or negligent escape, and that this shall be found by the jury. And if this appears from the record by express finding, or by the necessary conclusion of the law, it is sufficient. If any particular practice has prevailed in the State courts, as to the manner of entering upon the record the finding of the jury, it is a mere matter of practice as to the form of taking and entering the verdict of the jury, and cannot be binding upon the courts of the United States. IN N error to the Circuit Court of the United States for the Southern District of Mississippi. of a sheriff for an escape was where the plaintiff had not consented to the escape of the pris oner, and the negligence of the officer to make immediate pursuit. The only averment in the declaration in this case is, that the sheriff permitted Scott, against the will of the plaintiff without leave or license, to escape, and suffered him to go at large wheresoever he would, out of his custody. The finding of the jury should have been upon the necessary and required averments; and the verdict should, in compliance with the statute, have found the [*67 facts required by the statute to create the liability of the sheriff. The jury found a general verdict. No implication will be allowed. The statute expressly declares that the jury shall find the facts. The action for an escape is the pursuit of a rigid remedy; and the statute of Mississippi, looking to the hardship of the imposition of liability on the sheriff, has declared that all the facts necessary to create it shall be expressly found. Mr. Henderson, for the defendants in error, contended that the entry of the judgment on the verdict of the jury did authorize the assertion that the jury had found all the facts required by the statute. It was for the defendant below to have brought by plea before the jury, any of the requisitions of the act of Assembly which should be proved to make him liable. If an issue had been tendered on such a plea, these facts would have been brought into controversy. The entry of a general judgment on a special verdict is often made, and is lawful and proper. An action of debt was instituted by the defendants in error against Benjamin Long, then sheriff in Madison County, in the State of Mississippi, for the recovery of six thousand two hundred and seventy-seven dollars and costs, 66*] the same being the amount of a judgment obtained by Palmer, Smith & Company against Thomas S. Scott, at the January Term, This is an action of debt, and the provisions 1833, of the District Court of the United States of the statute of Mississippi do not apply to for the District of Mississippi, with interest, etc. such actions. If the action had been on the The plaintiffs in the District Court averred case for the escape under mesne process, it in the declaration that they had sued out a might have been necessary to have proved all the capias ad respondendum on the judgment against requirements of the statute under proper averThomas S. Scott, who was arrested by the dep-ments in the declaration. The language of the uty-marshall; and who, having him in custody act of Mississippi may authorize this position. under the execution, committed him to the cus- The plaintiffs in this case allege a debt to be tody of Benjamin Long, the sheriff, etc. That due to them for an escape. The defendants the said Benjamin Long received Scott into his plead nil debet, that he does not owe the money, custody, and afterwards, "without the leave or and the jury find that he did owe the same in license and against the will of the plaintiffs, manner and form, etc. This is sufficient. suffered and permitted the said Scott to escape Cited, 4 Call, 370; 1 How. 64; 3 How. 419; and go at large wheresoever he would, out of 2 Gallis. 231; 3 Wash. Rep. 17; 558; Peters's his custody." C. C. R. 74; Tidd's Forms, 334; 1 Archbold's Practice, 205; 1 Munford, 501; 5 Peters, 190; 1 Mass. 153; Paine's C. C. R. 159; 2 Peters, 16. The defendant in the Circuit Court, the case having been transferred to that court, pleaded nil debit, and the jury found a verdict for the plaintiff, in the manner and form as alleged by them; whereupon judgment was entered for the plaintiffs, according to the verdict. Mr. Justice Thompson delivered the opinion of the court: This case comes up on a writ of error from The defendant sued out this writ of error to the Circuit Court of the United States, for the January Term, 1839. The case was argued by Mr. Coxe for the plaintiff in error, and by Mr. Henderson for the defendant. Mr. Coxe, for the plaintiff in error, contended that the judgment against Benjamin Long, in the Circuit Court, was erroneous, upon the principles of the common law; and particularly by the laws of Mississippi. He said that there were no averments in the declaration of matters which, by the law of Mississippi relating to actions for an escape, were, by the express provisions of the statute, required to be found by the jury. The liability Southern District of Mississippi. It is an action of debt brought against the defendant for the escape of Thomas S. Scott, who had been duly committed to his custody by the marshal of Mississippi. The declaration sets out the judgment obtained by [*68 Palmer, Smith & Co., against Scott; the issuing the execution thereupon; the arrest of Scott, and his delivery to the defendant, as sheriff, who received him into his custody, by virtue of the said execution, and detained him until afterwards, to wit, on the 10th day of October, 1833, when, without leave or license, and against the will of the said Palmer, Smith & Co., he suffered and permitted the said Scott to escape and go at large, wheresoever he would, out of the custody of him, the said Benjamin Long, so being sheriff, as aforesaid. To this declaration, the defendant pleaded that he does not owe the sum of money demanded by the plaintiffs in the declaration, or any part thereof, in manner and form as the said plaintiffs have complained against him. And the issue thereupon joined came on to be tried by a jury; who upon their oaths say that the defendant doth owe the debt in the declaration mentioned, in manner and form as therein alleged, and assess the damages for the detention thereof, at one thousand and sixteen dollars and ninety-six cents. The question presented upon this writ of error, arises under a law of the State of Mississippi, concerning escapes, passed the 7th of June, 1822, (Revised Code, 318), the third section of which declares, that no judgment shall be entered against any sheriff or other officer, in any suit brought upon the escape of any debtor in his or their custody, unless the jury who shall try the issue shall expressly find that such debtor or prisoner did escape with the consent or through the negligence of such sheriff or other officer; or that such prisoner might have been retaken, and that the sheriff or other officer neglected to make immediate pursuit. This latter branch of the act is not involved in the present question. The declaration contains no averment of neglect to make immediate pursuit to retake the prisoner. To this section of the act, which is general, and extends to all actions for escapes, whether the prisoner is in custody of the sheriff on mesne process or on an execution, there is a proviso which declares, that when the sheriff or other officer shall have taken the body of any debtor in execution, and shall willfully and negligently suffer such debtor to escape, the party suing out such execution may have and maintain an action of debt against the sheriff for the recovery of all such sums of 69*] *money as are mentioned in the execution, and damages for detaining the same, any law, custom, or usage to the contrary notwithstanding. So that when the action is for the escape of a prisoner in execution, the measure of recovery is fixed, and not left open to any mitigating circumstances. This proviso takes the case of an escape, where the prisoner is in custody on an execution, out of the provisions in the enacting clause. The action in this case is debt, and comes within the proviso. But the grounds on which the sheriff is made liable for the escape are substantially the same. In the enacting clause he is made liable if the escape is with his consent, or through his negligence. And in the proviso he is made liable if he willfully and negligently suffer the escape, The word "or" must obviously be here substituted for "and." Shall willfully or negligently suffer the escape. To consent to an escape, is certainly willfully to suffer it. And the question which arises upon this record is, whether the case is brought within the provisions of this act. The action is debt against the sheriff, and the averment in the declaration, on which his liability for the escape rests, is, that he, without leave or license, and against the will of the said Palmer, Smith & Company (the plaintiffs in the execution), suffered and permitted the said Scott (the prisoner) to escape and go at large, out of the custody of him, the said Benjamin Long, so then being sheriff of the County of Madison, and the said sum of six thousand three hundred and fiftysix dollars and eighty-three cents, due for said damages and costs, being then and still wholly unpaid and unsatisfied. The error complained of in this record is, that the jury have not expressly found that the prisoner escaped with the consent or through the negligence of the sheriff. The plea to this declaration, which contains the averment above mentioned is, that the defendant does not owe the sum of money demanded in the declaration, in manner and form as the plaintiff has complained against him. This plea puts in issue every material averment in the declaration; and the plaintiff was called upon to prove such averments. It put in issue, therefore, the inquiry whether the sheriff suffered and permitted the escape. If he suffered and permitted the escape, this, both in common parlance and in legal intendment, was an escape with the consent of the sheriff. And the verdict of the jury is that the defendant "doth owe [*70 the debt in the declaration mentioned, in manner and form as therein alleged. The manner and form alleged in the declaration is, that he owed it by reason of his having permitted the prisoner to escape. So that, upon the most strict and rigid construction of the act, the jury have expressly found that the escape was with the permission of the sheriff; which is equivalent to finding that it was with his consent according to the requirement of the act. This act does not point out any particular form in which the finding of the jury is to be entered upon the records of the court. The object of the act is to make the sheriff respon sible for a voluntary or negligent escape; and that this shall be found by the jury. And if this appears from the record by express finding, or by the necessary conclusion of law, it is sufficient. So that, if the verdict of the jury in this case should be considered no more than the common form upon the plea of nil debet, all the averments in the declaration are, in judg ment of law, presumed to have been proved. And if any particular practice under this statute has prevailed in the State courts, as to the manner of entering upon the record the finding of the jury, it is a mere matter of prac tice as to the form of taking and entering the verdict of the jury, and cannot be binding upon the courts of the United States. The judg ment of the court below is accordingly af firmed. This view of the case renders it unnecessary to consider the motion to dismiss the writ of error. Judgment affirmed. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum. 71] STEPHEN COCKE, for the use of the At the time this record and certificate were made by William P. Puller, as clerk pro tempore, one Robert D. Haden was the clerk of probate for the County of Lowndes, duly electHaden was duly Y. Constitution and laws of Mississippi regarding clerks of courts-acts of pro tempore clerk of probate court-decision of judge, as to exigency, final. The constitution of Mississippi declares that clerks of the Circuit Court, Probate, and other inferior courts, shall be elected by the electors of the county for two years. The Legislature of Mississippi, by statute, declared that when, from sickness, or other unavoidable causes, the clerk of the Probate Court shall be unable to attend the court, the judge or probate may appoint a person to act as clerk pro tempore, who shall take an oath faithfully to execute the duties of the office, etc. Deeds of trust and mortgages are declared to be void against creditors and purchasers, unless they shall be acknowledged or proved, and delivered to the clerk of the proper court to be recorded; and they shall be valid only from the time they are so delivered to the clerk. Robert D. Haden was elected Clerk of the Court of Probate for the County of Lowndes, and during the two years for which he was so elected, he went to the State of Tennessee on business; and being absent when the Court of Probate sat, William P. Puller was, by the judge of the Court of Probate, appointed the clerk pro tempore and having taken the oath of office, he executed the duties of clerk during the session of the court, and afterwards until the return of the regularly elected clerk. After the adjournment of the court, a deed of trust, duly executed, by which cer: tain personal property was conveyed for the benefit of creditors, was delivered to William P. Puller, and was by him entered for record. An execution was levied on the property thus conveyed by a creditor of the party who had executed the deed; the regularity of the recording of the deed was de: nied, on the ground that the clerk of the Probate Court pro tempore had no authority to receive the deed of trust for record after the adjournment of the Court of Probate. Held, that the clerk pro tempore was authorized to record the deed of trust under the constitution and law of Mississippl. In every instance in which a tribunal has decided upon a matter within its regular jurisdiction, its decision must be presumed proper, and is binding until reversed by a superior tribunal; and cannot be affected, nor the rights of persons dependent upon it be impaired, by any collateral proceeding. Cases cited, Thompson v. Tolmie, 2 Peters, 157; The United States v. Arredondo, 6 Peters, 720; Voorhees v. The Bank of the United States, Ibid. 473; The Philadelphia and Trenton Railroad Com pany v. Stimpson, 14 Peters, 458. IN elected in November, 1837, for two years, and entered upon the discharge of his duties sometime in the month of February, 1839. Haden visited the State of Tennessee on business, and did not return in time to perform the duties of clerk at the March Term, 1839. In consequence of his absence, Thomas Sampson, Esquire, judge of probates, upon the opening of the Court of Probate, at March Term, 1839, appointed William P. Puller to act as clerk pro tempore during the absence of Haden. This deed was recorded by Puller, during the absence of Haden, but after the March Term of the Court of Probate, not while the said court was in session. Haden afterwards returned and resumed the duties of his office. The above described property was, by the trustee, left in the possession of James Carter & Company. At the May Term, 1838, of this court, judg. ment in the above entitled case was obtained against the said James Carter & Company. Execution was issued upon this judgment, and was levied on the assigned negroes, in the possession of James Carter & Company. Upon the levy being made, the trustee came forward and claimed this property, and gave the necessary bond; and this issue is now before the court to try the right to the said slaves. If the deed of trust was properly and legally recorded, then it is admitted that the judgment in the above case is no lien upon said slaves, and that the trustee will be entitled to the same. otherwise, if the deed was not duly and legally recorded, the slaves are subject to the satisfaction of the said judgment. The court adjudged that the trust deed [*73 was not duly and legally recorded; and that the said acts and proceedings of the said William P. Puller, as clerk pro tempore, in the recording of the said trust deed, were without authority of law, and altogether void; and so instructed the jury. To this opinion the plaintiff excepted, and the jury having found a verdict according to the opinion of the court, the plaintiff prosecuted this writ of error to the judgment of the Circuit Court on the verdict. N error to the Circuit Court of the United The case was submitted to the court, on a States for the Southern District of Missis-printed argument, by Mr. Cocke for the plainsippi. tiff, and was argued at the bar by Mr. Key for the defendant. In his argument, Mr. Cocke said: properly recorded. This is to be determined, mainly, by the local laws of Mississippi. There are, nevertheless, some elementary principles involved. On the 24th March, 1838, James Carter & Company executed a deed of trust to William L. Moore, for the purpose of securing the pay- The question involved in this case is, whethment of certain sums of money to the Commer-er the deed of trust mentioned in the record was cial Bank of Columbus, by which they conveyed, 72] among other things, certain slaves, then in Lowndes County, Mississippi, in trust to sell the said property for the benefit of the Bank of Columbus. This deed was presented for record to the office of the clerk of the Court of Probate for Lowndes County, on the 24th day of March, 1838, the day on which it was executed, and was indorsed "Received in my office for record on the 24th day of March, 1838, William P. Puller, clerk pro tem." And it was afterwards certified to have been recorded on the same day, under his hand and seal, by William P. Puller, clerk pro tem. The statute and constitutional law of Mississippi, which is supposed to bear upon this subject most directly, may be found as hereafter pointed out. By the Act of 13th June, 1822, deeds of conveyance were required to be recorded by the clerk of the County Court of the proper county. Alden's Revision of the Laws of Mississippi, 297, sec. 1. This, by the same section, is declared to be in the county in which the land is situated. By sec. 4, p. 298, deeds in relation to personal property shall be recorded in that county in which such personal property shall remain. Same page (sec. 5) provides that deeds of trust and mortgages shall take effect from the time they are delivered to the clerk to be recorded, and then only; but other deeds shall take effect from the time they were sealed and delivered, if recorded within three months. Sections 6, 7, 8, 9, 10, prescribe more in detail the duties of the clerk. By the Act of the 28th June, 1822 (Alden's Revision, p. 183, sec. 7), this language is used: "During the vacancy in the office of clerk of a county court, and during the unavoidable absence of the principal clerk and his deputies, if any he have, the court in term time, or the presiding justice thereof in vacation, may appoint a clerk pro tempore, who, after taking the necessary oath of office, shall be authorized to perform 74*] *the duties of a clerk, and during his continuance in office shall be entitled to all the fees thereof." By the Act of the 16th of February, 1828 (Aldens Revision, p. 194), the judge of probate of the county and the justices of the County Court then in commission, constitute the court denominated the County and Probate Court; and the latter part of the same section provides that the clerk of the County Court then in office should be clerk of said court. Thus the law on this subject stood until the year 1833, when the revised constitution of Mississippi was adopted. At p. 39, Alden's Revision, will be found the revised constitution. Sec. 4, title "Schedule," provides that "all laws then in force in this State, not repugnant to this constitution, shall continue to operate until they shall expire by their own limitation, or be altered or repealed by the Legislature." By article 4 of the constitution (Judicial Department, sec. 19, Alden's Revision, p. 34), "the clerk of the High Court of Errors and Appeals shall be appointed by said court for the term of four years; and clerks of the Circuit, Probate, and other inferior courts, shall be elected by the qualified electors of the respective counties, and shall hold their offices for the term of two years." By article 5 of the revised constitution (Executive Department, sec. 13, Alden's Revision, p. 34), "all vacancies not provided for in this constitution, shall be filled in such manner as the Legislature may prescribe." By the Act of the 2d of March, 1833 (Alden's Revision, p. 198, sec. 70), "all vacancies, either in the office of judge or clerk of the said court, shall be filled by election at the several precincts of the county, to be held at such time as the board of county police may prescribe, and on such public notice as may be provided for by law." By the same Act of the second of March, 1833 (Allen's Revision, p. 199, sec. 73), it is provided, "that, in case the clerk shall be at any time unable, from sickness or unavoidable causes, to attend said court, it shall be lawful for the judge of probates to appoint a clerk, to act as clerk pre tempore, who shall take an oath faithfully to discharge all the duties of his of fice, and for services rendered by the said clerk he shall be entitled to the fees allowed by law to the clerk of said court." *For the purpose of reversing_the_ [*75 opinion of the Circuit Court, Mr. Cocke, for the plaintiff in error, contended, 1. That the deed of trust was properly recorded. 2. That the appointment of William P. Puller "clerk pro tempore," was in conformity with the laws of Mississippi, and valid. 3. That the regularity of his appointment could not be collaterally inquired into. 4. That it was competent for the Probate Court to make the appointment. 5. That as Puller was clerk de facto, by appointment, acting under color of office, his acts were valid as respects the rights of third persons and the community, whether he was clerk de jure or not. 6. That it is not competent for the federal tribunals to declare a State law, regulating her local and municipal police, void or otherwise unconstitutional; unless in conformity with the decisions of State tribunals, when the Constitution of the United States is in no manner contravened. 7. That Puller's right to discharge the duties of clerk continued during the absence of Haden, and until Haden took the office, and resumed the duties of it. To ascertain the intention of the Legislature, laws on analogous subjects may be safely referred to. If this is allowable, we will find a similar provision in reference to the clerks of the circuit courts. Thus (Alden's Revision, page 118, sec. 13), that "during the vacancy of the office of clerk in any circuit court of law, and during the unavoidable absence of the principal clerk and his deputies, if any he have, the judge thereof, either in term time, or in vacation, may appoint a clerk pro tempore, who, after taking the necessary oath of office, shall be authorized to perform the duties of a clerk, and, during his continuance in office, shall be entitled to all the fees thereof." So if, from any cause, there be a just exception to the sheriff, the coroner may act; or, if the cause extends to the coroner, then a justice of the peace may perform the duty. Alden's Revi sion, p. 334, sec. 15. In the case before us, the agreement shows that Haden, the clerk elected, was absent in the State of Tennessee. It was true there was no vacancy. Haden was the incumbent elect, *and consequently there could be no elec- [*76 tion under the law. His absence was, however, about to create a kind of interregnum in the discharge of the duties of clerk. To prevent this, the statute above cited appropriately interposed itself, and provided a clerk pro tempore. The power of the judge of probate to do this is the question. It is contended 1. That the appointment of William P. Puller clerk pro tem of the Probate Court of the County of Lowndes, was in conformity with the law of Mississippi, and, in the absence of Haden. the clerk elect, was directly required by the statute to be done. See Alden's Revision, pag 183, sec. 7, and page 199, sec. 73, above cited. 2. The appointment of the court is itself conclusive evidence that the absence of Haden was an unavoidable absence, and cannot now anywhere be questioned. The court which made the pro tem. appointment was alone com. petent to decide the question; and having made the appointment, its determination is conclusive, deeds to the clerks of probates, and in certain either that Haden was sick, or absent from contingencies, to the clerks pro tem. of that unavoidable causes; and the propriety of that court, to be appointed by the judges of probates. decision cannot now anywhere be impeached, There cannot, it seems, be anything wrong in or collaterally inquired into. Stimpson v. The this; and it is certainly the manner in which Trenton Railroad Company, 14 Peters, 458. the discretion of the Legislature has been exerIf it be true that there can be no clerk pro cised, and nothing is known which would justem. of the Probate Court, so there could be notify the court below, or this court, in saying clerk pro tem. of the Circuit Court; nor could they have been wrong. a coroner be allowed in any contingency to 5. The recording of deeds in not an incident discharge the duties of sheriff, nor a justice of of any court, or its jurisdiction. If even it the peace to discharge the duties of coroner. were not competent for the Legislature to proThe federal judiciary would thus undertake to vide for a clerk pro tem. of the Probate Court determine that the whole system of the Missis- to be appointed as to the matters pecul- [*78 sippi legislation, in seeking to prevent an inter-iar to the jurisdiction of that tribunal, yet there regnum in the offices, and a failure of justice to is nothing in the recording of deeds which can, her citizens in her municipal police, would be by any possibility, enter into such considerations. invalid. It cannot be a sound construction of the 6. The terms, during the unavoidable abconstitution of Mississippi to suppose that if a sence of the principal clerk, as mentioned in elerk should, at any time, be unable, from sec. 7, page 183, and that in case the clerk shall sickness or other unavoidable causes, to attend be at any time unable, from sickness or unto the duties of his office, the framers of the avoidable causes, to attend said court, it shall constitution intended that the interest and be lawful for the judge of probate to appoint business of the country should be suspended. a person to act as clerk pro tempore, who shall If the constitution is to be construed as denying take an oath faithfully to discharge all the duties legislative action as to matters of this kind, not of his office; and for services rendered by said provided for in the constitution, then it must clerk, he shall be entitled to the fees allowed be considered that the convention intended that by law to the clerk of said court, as mentioned if the clerk elect should be unable, from sick-in sec. 73, page 199; cannot justly be limited to 77*] ness or unavoidable causes, to attend to the term of the court which made the appointthe duties of his office, the citizen for the time ment. It is true the law requires the court to should be without any power to perfect his make the appointment; but the last section legal rights, by having his deeds recorded; in defines the tenure of the office to continue comother words, that as a trust-deed, under the mensurate with the causes which made it neceslaws of Mississippi, can have no validity until sary to make the appointment; otherwise he it be delivered to the clerk to be recorded, the could not discharge all of the duties of his office. convention must have intended that if the clerk Again. It is the universal principle, in the should be unable, from sickness or other un-construction of statutes, to regard the reason avoidable causes, to attend to the duties, that, during that time, no right could be created by way of trust-deed; and if the sickness, or other unavoidable causes, should continue longer than three months, titles by deed should be ineffectual altogether. It is no answer to say the clerk might have a deputy. In the case of the clerk, there was no deputy; nor does the constitution provide any more for a deputy-clerk than it does for a clerk pro tempore. 3. But if it be contended that there is no such officer as clerk pro tem. known to the constitution of Mississippi (as such was the opinion of the court below), then it would follow that, as the legitimate business of a constitution is to regulate the general organic law, the duties of regulating in detail the various tribunals and jurisdictions created by it, have been wisely left to the legislative discretion and action. The Legislature having provided for the very state of things here in controversy, the counsel has not been enabled to discover anything in the constitution of Mississippi interdicting the authority of the Legislature on the subject. and spirit of the law and the causes which induced the Legislature to enact it. In the matter before us, it was most obviously the motive with the Legislature to prevent an interregnum in the offices, and to hinder a failure of justice. The business confined to the term of the court is not one hundredth part, in interest and amount, of that which, by the laws, is allowed to be done by the clerk in vacation. If the Legislature intended to provide for the matters of less importance only, it appears they must have been guilty of extreme ignorance, folly, or wickedness; the which this court would reluctantly ascribe to them. This court will give the statute the construction claimed. 7. It is confidently believed that the law is every way regular and proper, and that there does not exist any possible valid objection to the deed, or the time or manner of its execution, probate, or to the recording of it. But whatever may be the nature of the legal rights or liabili ties of Haden and Puller, as to the office, Puller, being the incumbent by appointment, discharg ing the duties of the office under color of title, being the clerk de facto, whether he were clerk 4. The constitution nowhere requires deeds de jure or not, all of his acts, so far as the rights to be recorded at all, nor did (as it is believed) of the community and third persons are conthe common law. The Legislature might discerned, are valid. The King v. Leslie, [*79 pense with the recording of deeds altogether; Andrews' Rep. 163; Taylor v. Skrine, 2 S. C. or they might have them recorded by a notary Rep. 696; Jones v. Gibson, 1 N. H. Rep. 268, public, city magistrate, or by any private citizen and the authorities there; Keyser et al. v. Kesby name, and there would certainly be nothing sam, 2 Rawle's Rep. 139; Buckham v. Reigles, 15 unconstitutional in it. But the Legislature Mass. Rep. 180; Nason v. Wellingham, 15 have thought proper to give the recording of Mass. Rep. 170; Fowler v. Babee, 9 Mass. Rep. |