
    Dewing vers. Train.
    
    No Action lies for Money recovered of the Plaintiff by Suit on a Note given by him to secure the Defendant against a contingent Liability on an Execution which the Plaintiff has subsequently paid.
   ASSUMPSIT for Money had and received to he Plaintiffs use. The Case was, that one Ball, a Deputy Sheriff, had an Execution against: the Plaintiff issuing on a former Suit brought by J. S., and Train passed his Word for Dewing’s Appearance at a Day then to come; and Dewing gave Train a promissory Note for the Contents of the Execution; notwithstanding which, Train sued Dewing on the Note, on which Suit Dewing never appeared, and Train had Judgment against him, —and, in the Course of the Affair, Dewing was committed by Ball on the Execution in Favour of J. S., and cleared it, and also cleared Train’s Judgment on the Note; and then brings this Action to recover back the Money which Train had taken by his Suit on the Note.

1772.

Sewall, for the Plaintiff, in opening, discovered the Opinion of the Court, that the Action was not maintainable on these Facts, () advised his Client, (who before had refused,) to refer the Cause, which was accordingly done.

Note.

This action was continued under reference from term to term until October, 1774. At this date, there appears on the docket the usual heading for the term, with the exception of a blank in the place of the names of the justices by whom it should have been holden; and after the list of continued actions appears the following entry:

“ N. B. The Superior Court did not lit in the County of Middlesex “ in October, 1774, by reason of the difficulty of the times, & there was “ no term of the said Court in that County until October, 1776. And “ the continued actions are carried forward by a special order of the gen- “ eral Court.”

The circumstances which prevented this session of the Court were as follows : Articles of impeachment had been drawn up by the House of Representatives against the Chief Justice, and, although the Council would take no action in the matter, yet, the articles being published, the effect, as described by John Adams, was that “ when the Superior Court “ came to fit in Boston, the grand jurors and petit jurors, as their names “ were called over, refused to take the oaths,” on the ground that “the “ Chief Justice of that Court stood impeached of high crimes and mis- “ demeanours before his Majesty’s Council, and they would not fit as “jurors while that accusation was depending. At the Charlestown “ Court the jurors unanimously refused in the same manner.” 2 John Adams’s Works, 332. On the 19th of July, 1775, the General Court holden at Watertown, while the American army was at Cambridge, and the British in Boston, passed the act removing all officers appointed by the Governor, whether civil or military, from their respective offices, from and after the 19th of September then next. On the 11th of the following Oftober, a majority of the Council reorganized the Superior Court by appointing John Adams Chief Justice, and William Cushing, William Read, Robert Treat Paine, and Nathaniel Peaslee Sargent, Esqrs., Associate Justices thereof. Adams accepted the appointment, but resigned in 1777, never having taken his seat on the bench. 3 Ib. 23, 24. Read, Paine, and Sargent at first declined the office, and their places were filled by James Sullivan, Jedediah Foster, and James Warren. The latter also declined the appointment, but the two former accepted it, and were commissioned March 20, 1776. Foster had occupied a seat in the Council, which he at once resigned, as incompatible with the office of judge. In his letter of resignation he says : “ It has for sundry Years past been a prevailing Opinion that a “ Seat at the Hon’ble Council, and on the Superiour Court Bench ought “ not to be held by the same Person at one and the same Time : an “ Opinion I think founded in the highest Reason, and should be supported “ in a free Constitution.” 195 Mass. Archives, 14. See ante, p. 242.

In May, 1776, was passed the act changing the style of commissions, writs, processes, and proceedings in law, from the name and style of the King of Great Britain, France, and Ireland, Defender of the Faith, &c., to the name and style of the Government and People of the Massachusetts Bay in New England. Anc. Chart. 798. The first Court held under the new organization appears to have been in Ipswich, for the County of Effex, on the 3rd Tuesday in June, 1776. The records of this term are entitled “ Colony of Massachusetts Bay,” and the Court was held by “Wm. Cushing, Jedediah Foster, and James Sullivan, Esqrs., Justices,” “They having first produced Commissions under the Government Seal, severally appointing them Justices of the said Court.” Rec. 1776, Fol. 2.

In February, 1776, was passed an act altering the place of holding Courts in Suffolk, from Boston to Dedham and Braintree, the former being made the shire town of Suffolk, — the preamble reciting that “ Boston, the Place appointed by Law for holding the Superiour Court f &c., “ is now made a Garrison by the Ministerial Army, and become a “common Receptacle (i) for the Enemies America.” In accordance with this act, the first term of Court for Suffolk was holden at Braintree, in September, 1776. Rec. 1776, Fol. 29. In the following November, the act was repealed, and the first term holden in Boston appears to have been in February, 1777. Rec. 1777, Fol. 67.

The first term for Middlesex was, as before stated, in October, 1776, when the Court met and adjourned to the following February. The adjourned session was held by Cushing, Folter, Sullivan and Sargent, the latter having been reappointed on the 19th of the preceding September, and this time accepting the office. At this term there appear the first: instances of appeals claimed to the “ General Congress of the United States of America.” Rec. 1776, Fol. 51. “Middlesex Minute Book, October, 1776.” The case of Dewing v. Train was continued to the following April Term, which was the first holden at Concord under the act passed in February, 1776, changing the places of holding Court in Middlesex, “ as Charlellown is destroyed by the Enemy.” At this term the referees made their report in favor of the plaintiff for £ 18, 8, 6, for which sum judgment was entered, and execution issued November 3, 1777.

(1) “ Old receptacles, common sewers ”-

Pericles, Act IV. Sc. 6. 
      
      (1) On the general principle that money paid under legal process cannot be recovered back. The plaintiff’s remedy should have been sought by review. 16 Mass. 308. 17 Mass. 394. 1 Pick. 440. 4 Gray, 148. 13 Gray, 70.
     