The court of chancery will not however make an adverse order to pull down what has been done,' but there is one instance where an injunction in the negative was granted, commanding the defendant "not to permit it to remain." This example however would not probably be followed.

If the nuisance were of a public character it would be indictable, and then after conviction there would be a judgment that it be removed. In cases therefore where the party injured and his friends could not abate it, his only direct course to get rid of it would be in a court of equity.

In cases where an injunction would not be granted before a trial at law, and in all others, after a verdict has been rendered finding the nuisance, and not before, a court of equity will order it to be removed."

I have thus endeavored to furnish an outline of the present state of the law, upon this subject. It is submitted, with the humble hope, that it may be somewhat useful in the discharge of your professional duties, and aid in promoting the laudable objects of this association.

12 Vesey, 533, Ryder v. Bentham.

21 Clark & Fin. 13, Rankin v. Huskisson.

1 Cox. 102; 2 Vesey Jr. 193; Carey, 26.

ART. III.-BIOGRAPHICAL SKETCH OF NATHANIEL BYFIELD.

ALTHOUGH the subject of this notice was never a member of the superior court of the province, his connexion with the other branches of its judiciary entitle him to a place among the notices of the judges of Massachusetts.

He was born in England in 1653, and was the son of Richard Byfield, one of the clergymen who constituted the famous Westminster assembly of divines. His mother was a sister of bishop Juxon, and he was the youngest of a family of twenty-one children.

He arrived at Boston in 1674, where he resided until he became a proprietor of the town of Bristol, then within the limits of the Plymouth colony, at its incorporation in 1680. About that time he removed to that town, where he settled upon and became the proprietor of the beautiful peninsula of Poppysquash. Although educated as a merchant, and possessed of a considerable fortune, he engaged in the practice of the law after removing to Bristol, and upon the division of the Plymouth colony into counties, in 1685, he was made chief justice of the court of common pleas for the county of Bristol. One of his associates upon the bench was the famous warrior Church, with whose exploits against the Indians, our early histories have rendered every one familiar.

Upon the union of the Massachusetts and Plymouth colonies under the charter of 1692, although colonel Byfield continued to hold his place upon the bench of the common pleas, he entered with much spirit into the politics of the day, and in 1693, having been chosen to represent Bristol in the general court, he was made speaker of the house of representatives.

By the provisions of the province charter, the establishment of courts of admiralty was reserved to the crown, from whom the judges of that court were to derive their appointments. A court of admiralty was early organized, and at first embraced New York, Connecticut, Rhode Island, Massachusetts and New Hampshire, which, together, constituted one district. The judge of this district appointed his deputies for particular portions of the territory, and in 1699 colonel Byfield was made a deputy judge of this court. In 1703 a division of this district was effected, and a commission to colonel Byfield, as judge of the "northern district," consisting of Massachusetts, Rhode Island, and New Hampshire, was received by him. This office he held until 1715, when, as it would seem, on account of his

political opinions, he was superseded in his place upon the admiralty bench. In the year 1702 he was made judge of probate for the county of Bristol, and held the office till 1710.

The vicissitudes of political favor at length restored him to the place in the court of admiralty, from which he had been ejected, and he was again commissioned as judge, in 1729. He continued to hold this office from that time until his death. As he still held his office upon the bench of the common pleas, it will be perceived, that for many years he was judge of probate, of the common pleas, and of admiralty, at the same time. And, as will be remarked hereafter, he was, during all this time, actively engaged in political life, holding political offices, and embroiled in all the excitements of a bitter political warfare.

In 1731 he removed from Bristol to Boston, and upon the accession of governor Belcher, with whom he was connected by family, he was appointed to the place of chief justice of the court of common pleas for the county of Suffolk; having for one of his associates the distinguished Elisha Cooke, the younger of the two who bore that name.

Although not constantly a member of the court of common pleas while he resided in the county of Bristol, it is said he held the office of chief justice of that court for thirtyeight years, the last period of his office having been from 1716 to 1725. He remained upon the bench of Suffolk county until his death, which took place in 1733, at the advanced age of eighty.

Although it is not easy to conceive how, among his other avocations and engagements, he could have qualified himself as a lawyer, to fill the places which he occupied, yet, it would seem from the character of Mompesson, whom he succeeded, and Menzies, by whom he was superseded, that legal acquirements were regarded in making appointments to the bench of the admiralty court. Mompesson is said to have been "the best lawyer in America," and Menzies was

regularly educated to the profession, and had been a member of the Faculty of Advocates" in Scotland. How much politics or family influence' had to do with his numerous appointments, it is difficult to determine, but it was true that he was quite as distinguished a politician as a judge.

He seems to have possessed an inordinate share of ambition, and more perseverance than prudence. His first election to the house of representatives has been mentioned. In the years 1696, 7, and 8, he represented Boston in that body, and in the last of these years was again chosen speaker.

He became a zealous supporter of that party which embraced the democracy of the province, at the head of which were the Cookes, the father and son, the latter of whom has already been mentioned.

While the leaders of this party aimed only to secure the rights of the people, Byfield sought by means of it to obtain office and accomplish his purposes of revenge upon his personal and political enemies.

He was for many years a member of the council, and, although at the accession of governor Dudley he seems to have been his friend, in consequence of a harsh and severe reproof from the governor in open council, on account of some judicial proceedings, he conceived a most implacable hatred towards him, which he carried so far as to attempt to supplant him in his office.

For this purpose he visited England in 1714, and an amusing account is given by the distinguished Jeremy Dummer, in a letter to Dr. Colman. "I had your letter by colonel Byfield, for which and for all other letters and favors I thank you. The second time that gentleman and I met

He is stated by Hutchinson to have been father-in-law to lieutenant governor Tailer.

was at my chambers, where we soon came to a full understanding of each other with respect to the present governor. I told him that both my duty and inclination bid me to stand by his commission, with what friends and interest I could make; and he replied that by the help of God, he would get him turned out, and therein please God and all men. Accordingly we have both been pretty diligent, but I think he is now out of breath. His age makes him impatient of the fatigues of application, and his frugality makes him sick of coach hire, fees to officers, and door keepers and other expenses, so that I believe he now heartily wishes himself safe in his own government at Poppysquash. He is really an honest worthy man, but he is so excessively hot against colonel Dudley that he cannot use any body civilly that is for him."

Although Dudley was unable to retain his office, Byfield met with but little success in his endeavors to obtain the place, and sorely to his displeasure, colonel Shute was appointed as Dudley's successor, in the place of colonel Burgess, who, though appointed, never came to Massachusetts. Colonel Shute found the state of party feeling highly exasperated in the province, and did little to allay it. Indeed there is scarcely a period in the history of Massachusetts when the violence of party spirit was greater than during the administration of governor Shute. The year 1720 was distinguished for the height to which these dissensions rose. Byfield having returned from England was chosen to the council that year, and his election was negatived by the governor. He was again chosen, and again negatived in the two following years. Nor did he find any more favor in 1723, when the government was left in the hands of lieutenant governor Dummer. From that period, however, he was permitted to take his seat at the council board until 1729, when his name was omitted by the house from the list of counsellors. This seems to have closed his