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the general court; and, among other measures which were deemed of great importance at the time, he is said to have originated the scheme of establishing committees of correspondence in the various towns in the province, whereby, perhaps, more than by any other means, the spirit of union and resistance to the mother country was kept alive and active. In 1770, he was elected speaker of the house of representatives, in the place of Mr. Hancock, who had been negatived by the governor. In 1775, he was a member of the provincial congress; and, upon the death of Gen. Joseph Warren, was chosen president of that body. He held also the office of paymaster of the American army, while it lay at Cambridge; in which office he enjoyed the confidence of the public, and the friendship and esteem of general Washington. Upon the assembling of a new house of representatives, in July, 1775, pursuant to the recommendation of the continental and provincial congresses, he was elected speaker of the house at its first organization. The following year, he was appointed a judge of the supreme court, which office he declined; and when, in 1780, he was elected lieutenant governor of the commonwealth, he also declined that place, and retired to private life. He, however, had, in the mean time, acted as a member of the navy board, the duties of which were both arduous and responsible, having derived his appointment from the continental congress. After the war, he lived for some time at Milton, occupying the seat which had belonged to governor Hutchinson; but afterwards removed to his native place, where he died at the ripe age of 82, in 1808. He was scarcely less indebted for his fame to his wife, than to his own well-earned honors. She was the distinguished historian of the American revolution, and in every way worthy of being allied to the eminent and eloquent James Otis, whose sister she was. She survived her husband, and died at the age of 87, in the year 1814.
JEDEDIAH Foster was appointed a judge of the superior court, March 20, 1776. He was a native of Andover, and was born in 1726. He was graduated at Cambridge in 1744, but did not pursue the study of any profession. He established himself in mercantile life in Brookfield, where he married a daughter of the distinguished general Dwight, who held an important command in the Louisburg expedition in 1745, and was also many years a judge of the court of common pleas in the counties of Hampshire and Berkshire. He held several military commissions, among which was that of major of a regiment in the “French war” in 1751. Upon the organization of the Massachusetts troops, at the commencement of the revolution, he was appointed a colonel of one of the regiments. In 1775, he was appointed a judge of the court of common pleas for the county of Worcester, and, at the same time, judge of probate for the same county, but held the offices only about a year, when he was promoted to a seat upon the bench of the superior court. Judge Foster was early distinguished as a friend of popular rights, and became a prominent leader in the events in Massachusetts preceding and during the revolution. His election to the council under the charter, in 1774, was negatived by governor Gage, but he was elected to represent Brookfield in the first and second continental congresses, and in that relation filled some of the most important places within their appointment. He acted as a member of many of the leading committees of those bodies, was one of those who were entrusted with the duty of countersigning the bills issued as money by the congress, and in company with Walter Spooner and James Sullivan, he visited the fortresses at Ticonderoga and Crown Point in 1775, to inquire into the expediency and feasibility of maintaining them by the American troops. This commission was created by the Massachusetts congress, and the report made by the commissioners to that body, in June of that year, evinced the faithfulness and ability with which they executed the trust committed to them. In the following October, he received his commission as judge of the court of common pleas, and in September, 1776, was made a judge of the superior court. These appointments withdrew him, somewhat, from the arena of military and political life, but he was a leading member of the convention which met for forming a constitution for the state in March, 1779, and was one of the committee raised by that body for drafting the proposed constitution. He held the office of judge of the superior court until his death, in October, 1779. Although not educated as a lawyer, judge Foster seems to have commended himself to public favor and confidence in his judicial character. He possessed a great share of that experience which is derived from an active and diversified life, which, added to naturally strong powers of mind and a good education, fitted him for the various important offices which he was called to fill. He left two sons, one of whom, Theodore, settled in Providence, and at one time represented Rhode Island in the United States senate. The other, Dwight, settled at Brookfield, and, at different periods, held the offices of sheriff of the county, representative in congress, judge of the court of common pleas, and a member of the senate of the United States.
NATHANIEL Peaselee SARGEANT was long distinguished as a lawyer and a judge; but, like most of that profession, few memorials remain of his public or private life. The most laborious and faithful services of the ablest lawyer may be appreciated by his client or the counsel opposed to him, and the most brilliant forensic effort of a cultivated and powerful mind may be listened to with delight by the few who may witness it, yet the sphere of a lawyer's fame is almost necessarily circumscribed, and the memory of his intellectual efforts ordinarily fades away with the few who personally know and appreciate his character. Immortality seems to have but little affinity with a lawyer's profession or his individual fame. The case of judge Sargeant is by no means a solitary one, where the history of a most useful life may be told in a single paragraph. He was born in Methuen in 1731, and was the son of the Rev. Christopher Sargeant. His mother's family name was Peaselee. He was graduated at Cambridge in 1750, and commenced his profession as a lawyer in Haverhill. At the bar he was distinguished for his integrity, sound learning, and laborious research, far more than for eloquence or power as an advocate. He does not seem to have taken a prominent part in politics, though he was a decided opposer of the aggressions of the mother country, and held a pretty conspicuous place in the provincial congresses of 1774 and 1775, of which he was a member. At the organization of the courts in 1775, he was appointed a judge of the superior court, but declined then to accept the office. However, when, in the following year, 1776, he was again appointed to the place, he accepted it, and retained the office until he was made chief justice of the court, in 1790, upon judge Cushing's being transferred to the bench of the United States court. He held the place of chief justice for a short time only, as he died in October,
1791, at Haverhill, at the age of sixty years. His character as a judge was that of an able, faithful, and impartial magistrate, and the few specimens that remain of his legal opinions indicate the possession of a good share of legal knowledge, as well as of sound judgment and just discrimination. E. W.
ART. VII. — REMEDY ON COVENANTS IN THE REALTY.
[We lately received a letter from one of our correspondents, containing the following statement and request:
“I find that judge Green, in 2 Randolph's Reports, 141, says, that chief justice Parsons was mistaken in 3 Mass. Rep. 545, and the ‘Virginian’ seems disposed to brag a little over the “Yankee.' I suppose that judge Green must be right, yet you know that sometimes mistakes happen even south of “Mason and Dixon.' You will do me a great kindness to inform me of the truth.”
Not feeling quite sure of our ability to inform our correspondent of the truth in the premises, we handed his letter to a learned friend, who shortly afterwards returned it with the following characteristic note.
“A negro, who wore a watch, but could not tell the time of day by it, on being asked what was the hour, pulled out his timepiece, and, thrusting it into the inquirer's face, said, “See for yousef, and not trouble gemmen."— See 10 American Jurist, 117; Williams's Hobart, 46, note to Pincombe v. Rudge.”
Having ourselves forgotten the existence in our journal of any article on the subject referred to, it is to be presumed that some of our readers may be equally oblivious; and we have therefore concluded to republish it for the benefit of our readers in general, and for the satisfaction of our correspondent in particular.]
QUESTIONs. 1. Whether there is now in England any personal remedy on real covenants of warranty touching the freehold, where the freehold is ousted by title paramount 2
2. What is now the rule of damages in England upon covenants for quiet enjoyment 2
As to the first question, it was held in Pincombe v. Rudge, Hobart's R. 3, by all the judges in the exchequer chamber,