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for every twenty thousand feet of merchantable seasoned boards; yet the said E, not minding his said promise, but fraudulently contriving to injure the plaintiff, though often requested, and though the plaintiff, has been always ready to receive the said boards, to wit, at &c. aforesaid, hath not delivered the said boards or any part thereof, but wholly neglects and refuses so to do. S. PUTNAM.

On note payable partly in money and partly in work, at an agreed price.

For that the said E, at &c., on &c., by his note in writing under his hand, of that date, for value received, promised the plaintiff to pay him, or his order, the sum of £90 lawful money, of the value of $300, as the plaintiff avers, in six months from the date of the said note, and that he would pay him, £60, part thereof, of the value of $200, as the plaintiff avers, in printing, at the Boston customary price per sheet, and the remaining £30, of the value of $100 in cash, and the said E, in and by his note, further promised. the said plaintiff, that if he could be prevented by any accident from paying the said £60 in work, as above mentioned, he would then pay him the same sum in cash, with lawful interest on the said £90 first mentioned, until paid. Now the plaintiff, in fact says, that the said E, though often requested, has never paid the said sum of £60, in work, as above mentioned; nor has he, though alike requested, paid the said sum of £90, in cash, according to his promise, but unjustly neglects and refuses so to do. C. C. P. Essex, T. PARSONS.

1794, Osborne v. Robinson.

Consignee v. Master; for not delivering goods consigned to plaintiff.

For that whereas the said E, on &c., at C, in parts beyond seas, to wit, at B aforesaid, received of E. W. on board the ship, called &c., whereof the said D then was master, (goods) all of the value of &c. dollars, in good order and well conditioned, to be transported by him from C to M aforesaid, the dangers of the sea only excepted, and there to be delivered in like good order and well conditioned, to the plaintiffs or their assigns, they paying freight therefor &c. dollars, with primage and average accustomed ; in consideration of the premises, the said D then and there promised to transport and deliver the said goods accordingly : now the plaintiff's say, that the said ship afterwards, on &c., did arrive at said M, and that they did then and there pay said freight to one A. O. Esq., owner of said ship, of which

the said D had notice, and that no primage or average is, in such case, accustomed to be paid; yet the said D, though he was then and there requested to deliver said goods, refused and still refuses so to do, &c.

Consignee v. Master; on a bill of lading.

For that the said D, at &c., on &c., received on board the ship, called the M, whereof the said D was master, five hogsheads &c. [containing the goods in the annexed schedule enumerated,] and on &c., at &c., signed a certain note in writing, called a bill of lading, and then and there undertook, the dangers of the sea only excepted, to deliver the said goods at &c. to the plaintiff, he paying customary freight; and afterwards, to wit, on &c., the said D arrived in said ship, at said &c. ; yet he hath not delivered said &c. [goods] though often requested by the plaintiff, who has always been ready to pay the freight aforesaid, but neglects so to deliver the same, &c. J. ADAMS.

Consignor v. Master, for not transporting or delivering goods. For that whereas the said plaintiff, on &c., at &c., loaded in and upon the good ship, called &c. whereof the said D was master, riding at anchor in the port of &c., the goods. and merchandises following, to wit, &c., to the value of &c. dollars, in good order and well conditioned, and from thence to be transported by the said D, to be delivered in like good order and well conditioned (the dangers of the sea only. excepted,) at &c., unto C, or his assigns, freight for said. goods being paid by said plaintiff to the said D, at &c..on &c., with primage and average accustomed; the said D, in consideration of the premises, afterwards, on the same day, at &c., promised the said plaintiff that the goods and merchandises aforesaid, he, the said D, would transport in said vessel, from &c., to &c., and to the said C or his assigns, well and faithfully would deliver the same in like good order,. and well conditioned (the dangers of the sea only excepted); and although the said ship, with the goods and merchandises therein loaded, afterwards, on the same day, sailed from &c., and although the dangers of the sea did not. hinder the said D from proceeding in said vessel to &c. aforesaid, yet the said D, contriving to injure and defraud. said plaintiff of the goods and merchandises aforesaid, did not transport the same to &c. aforesaid, nor there deliver

said goods and merchandises to the said C, or his assigns but hath hitherto neglected and utterly refused so to do.

Shipper v. Owner of ship, for not taking aboard, transporting, nor delivering goods.

For that whereas the said C, E, and T were, on &c., at said B, owners of the ship called the T, (of which H. B. was then the master, by the said owners appointed,) then riding at anchor before the city of A, and employed by the said owners to take on board goods, wares, and merchandise from thence, for such persons as should apply therefor, and to transport the same to the said B, for hire, to be paid them therefor. And the plaintiffs then having, in good order and well conditioned, at said A, one case marked S, P. O., containing three hundred and four pounds of Bohea tea, net weight, of the value of $500, to be transported from thence to the said B, the said C, E, and T, then and there, viz. at the said B, in consideration that the plaintiffs had then and there paid them a certain sum of money, viz. 63 guilders of current money of the said city of A, of the value &c. of our lawful money, for the taking on board, and transporting in said ship, said case, with the said contents, from the said city of A to said B, there to be delivered to the said plaintiffs, or their assigns, in like good order and well conditioned, the dangers of the sea only excepted, and had then and there delivered them the said case, with the said contents, to be taken on board, transported and delivered as aforesaid, promised the plaintiffs, that they would take the said case on board the said ship, and transport the same in her from said city of A to B aforesaid, and there deliver the s..me, in like good order and well conditioned, to the plaintiffs or their assigns, the dangers of the seas only excepted, upon the arrival of the said ship at said B. And the plaintiffs further say, that the said ship, afterwards on &c. arrived at the said B, safe with her lading, without having received any injury from the seas; yet the said C, E, and T, not regarding their promise aforesaid, but intending to injure and defraud the plaintiffs, never took the s id case on board said ship, nor transported the same to said B; nor have they ever delivered the same to the plaintiffs, or to their assigns, though thereto requested, viz. on &c., at said B, but unjustly neglect and refuse so to do. T. PARSONS.

Indorsee of bill of lading v. Master, for not delivering goods. For that whereas the said C, on &c., in parts beyond seas, viz. at T, in the W. I., was commander of a certain ship, called the A, which ship was then bound from thence on a voyage to the port of B, in this Commonwealth; and the said ship, being so bound, and the said C, being so commander, as aforesaid, one R F then and there caused to be shipped in said ship, divers goods and merchandises, viz. ten hogsheads of sugar, in good order and well conditioned, to be carried in said ship from the said port of T to the said port of B, and there to be delivered in like good order and well conditioned, the dangers of the seas only excepted, to the plaintiff or his assigns for a certain reasonable freight viz. &c. to be paid to the said C, with primage and average accustomed, whereof the said C then and there had notice. And the said C then and there, viz. at said T, made and subscribed under his hand, a certain bill of lading, and thereby acknowledged the shipping of the said sugar in the said ship, and undertook, on her arrival at the said port of B, to deliver the said hogsheads of sugar in good order and well conditioned, the dangers of the seas only excepted, to the plaintiff or his assigns, he or they paying primage and average &c., as aforesaid; and by a certain written indorsement, with the handwriting of the said C subscribed, then and there made on said bill of lading, it was declared, that the said hogsheads of sugar, in the said bill mentioned, were consigned to the plaintiff upon the express condition, that the plaintiff would accept and pay certain bills of exchange, drawn upon the plaintiff by the said R F, bearing date the 2d of July, 1788, in favor of certain persons carrying on trade and commerce under the style of Z and Co., at ninety days' sight, for $1000; but if the plaintiff would not accept or pay the said bills, or to the amount of said sugar, the said C, by the said indorsement, engaged to deliver the said sugar to the holder of the said bills. And the said C then and there delivered the said bill of lading, with the said indorsements thereon, to the plaintiff; whereby the said C became liable, and then and there promised the plaintiff faithfully to deliver to him the said hogsheads of sugar, according to the tenor of said bill of lading, and the indorsement thereon made as aforesaid. And the plaintiff in fact says, that the said ship, with the said hogsheads of sugar on board thereof, afterwards, on &c., arrived safe at said B from that voyage. And the plaintiff further says, that he,

the plaintiff, hath always, since the said arrival of said ship, been ready and willing to receive the said hogsheads of sugar, and to pay the freight for the same at the rate aforesaid, with primage and average accustomed, as in the said bill of lading specified, and to pay the said bills of exchange, in the said indorsement mentioned, to the amount of said sugar at B aforesaid; of which the said C there, on &c., had notice and was then and there requested to deliver the said hogsheads of sugar to the plaintiff, according to his promise aforesaid; yet the said C, notwithstanding his said promise, hath never hitherto delivered the said hogsheads of sugar, or any or either of them, but wholly neglects and refuses so to do.

3. For Legacies.

Administrator of legatee v. Devisee, for a legacy.

For that A, late of said A, gentleman, deceased, in his lifetime, viz. on &c. was seized of a parcel of land in Jones' lot (so called) adjoining to said C's house-lot in said A, and other real estate, consisting of upland, meadows, and mills, in said A, and elsewhere, of great value, and being so seized, on the same day, at A aforesaid, made his last will and testament, in writing duly executed, and therein and thereby, after having devised part of said real estate to other persons, devised his said land in said Jones' lot, and one undivided third part of the reminder of his said real estate, to said C, his heirs and assigns forever, and in and by said will, ordered the said C (among other things) to pay to the said B, who was the testator's grandson, and then living, the sum of &c. (which sum the said testator gave said B, in and by his will), in one year after the decease of said A, and afterwards, viz. on &c., the said A died at A aforesaid, so seized of the premises, and his said last will and testament hath been since duly proved, approved, and allowed, as the law directs, and the said C, on the death of said testator, at A aforesaid, assented to said devise, and entered into the premises devised to him as aforesaid, and thereby became liable and chargeable by law, to the said B, then living, to pay him said sum of &c., in one year from that time, and in consideration. thereof, then and there promised him to pay him the same accordingly; yet the said C, though that time is past, and though requested by said B, at the end of said year, viz. on &c., at &c., (the said B being then also in full life)

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