Volume 1 — Maine Reports

X. HÍS was an action of assumpsit brought to recover the price of seven acres of land. At the trial of this action, upon the general issue, before Putnam J. at May term, 1819, the plaintiff proved that on the first day of July 1816, he conveyed seven acres of land to the defendant, by a deed purporting to be in consideration of two hundred and forty-five dollars, paid by .the defendant, the receipt of which was therein acknowledged by the plaintiff.

This was an action of trespass on the case for an injury done to the interest of the wife, by cutting down and carrying away sundry trees standing on land of which the plaintiffs alleged themselves to be seized in right of the wife.

In a case stated for the opinion of the Court, the parties agreed on the following facts, being seized in fee of a certain lot of land, on the 9th day .of August, 1815, conveyed it to one Dudley, by deed, with the usual covenants of warranty; and at the same time, as security for the purchase-money, took from Dudley a mortgage of the same land. At the time of making these deeds Dudley was a minor.

<p> Practice. </p> <p>Where the plaintiff sued trespass and false imprisonment in the Circuit Court of Common Pleas, and judgment being against him there, he appealed to the Supreme Judicial Court, where he had a verdict for thirty dollars only ; yet it was holden that he had “ reasonable cause for such appeal,” under Stat. 1817. ch. 185.</p>

This was a writ of entry on the demandants’ own seizin of a lot of land in Turner, and a disseizin by the tenant; who pleaded the general issue, and prayed in aid the title of Thomas. Hobart.

<p>This was a.n action of trespass quart clausum fregit, similar; in its history, to the foregoing case of Turner v. Carsley, except that the verdict for the plaintiif in this Court was for no more than six dollars,</p> <p>objected, among other things, that the action ought to have been brought before a justice of the peace, the amount of the verdict shewing that it was within his cognizance.</p>

The defendant was indicted for that he, “ with force and “ arms, to wit, with an axe and auger, unlawfully, violently, “ forcibly, injuriously and with a strong hand, did enter into “ the dwelling-house of Joseph Cate in said Portland, and in his “ actual and exclusive possession and occupation with his fami- “ ly; and the said Harding did then and there unlawfully, vio- “ lently, forcibly, injuriously and with a strong hand, bore into “ said dwelling-house with said auger,…

<p>A Shipmaster having received a trunk of goods on board his vessel, to be carried to another port, which on the passage he broke open and rifled of its contents ; the owner of the goods, proving the delivery of the trunk and its violation, was admitted a witness, in an action for the goods against the shipmaster, to testify to the particular contents of the trunk, there being no other evidence of the fact to be obtained.</p>

Dower unde nihil habet, wherein the plaintiff demanded against the defendant Gooding and Ann Graffam her just and reasonable third part of a certain messuage or parcel of land in Port-, land, whereof she alleged herself to be dowable of the estate of her late husband Nathaniel F, Fosdick deceased.

<p>Entry sur disseizin for a lot of land in Portland, in which the demandant counts upon his own seizin within thirty years, and on a disseizin by the tenant. Plea, nul disseizin and issue thereon. At the trial of this action the demandant, to support the issue on his part, read to the jury a deed of the demanded premises from one George Whittemore to him, dated December 21, 1812, which was duly registered. The tenant then read in evidence a judgment and execution in his own favour against George Whittemore which was extended on the same land December 29, 1818, as the estate of said George. And to prove the land to be the property of George, the tenant called Mr. Neal, who testified that in April or May 1815, George, being in embarrassed. circumstances, applied to him to effect a settlement with bis creditors, and in the course of the conversation shewed him a roll of deeds, among which was one from the demandant to., said George, of the land in question. Mr. Neal could not name the subscribing witnesses to this deed, until his recollection was refreshed by a recurrence to certain other deeds on record. He then testified that it was acknowledged before Thomas Webster, Esq. and attested by him and William A. Simonton, as subscribing witnesses; and that he knew the hand-writing of Mr. Webster and of Nathaniel Whittemore, the grantor, which he saw on the deed. Mr. Webster being proved to be interested in the suit, his testimony was not admitted. The counsel for the tenant being then required to produce Simonton the other subscribing witness, it was suggested that he was absent at sea ; and Mr. Neal testified that he was in town some months since, and was under the control, or lived in the house, with said George, but where he was then he did not know.</p> <p>The Judge instructed the jury that this evidence was sufficient to prove the existence and execution of the deed from the demandant to George Whittemore ; and they thereupon returned a verdict for the tenant, which the demandant moved the Court to set aside, for the misdirection of the Judge.</p>

Error, to reverse a judgment rendered by the Circuit Court of Common Pleas on a report of referees. The submission was made pursuant to Stat. 1786. c. 21. The referees, having met and heard the parties, made a report in favour of the defendant in error, which, for some cause not apparent on the face of the proceedings, was recommitted.

<p>No action can be maintained for an escape on mesne process, unless the plaintiff could have maintained the original action against the prisoner.</p> <p>No action lies at the suit of the prosecutor, against the Sheriff, for the escape of a prisoner charged with larceny under Stat. 1804. c. 143. before conviction : even though the prisoner may have pleaded guilty at his examination before the magistrate.</p>

In an action of trespass quart clausum, fregit, the defendant, to prove his title to the land, read a deed from the Twenty Associates to one Molineaux, under whose administrator he claimed ; to the validity of which deed it was objected on the part of the plaintiff that it had been altered after its delivery.

Assumpsit upon a note of hand, called, among bankers, a stock note, given by the defendant to the plaintiffs. The writ was sued out October 23, 1818.

Tub defendants in this case pleaded in abatement of the writ,that it was served by a Deputy Sheriff in the county of Essex who was an inhabitant of Salem; and that at the time of the commencement of the action and service of the writ, there was another Deputy Sheriff for said county by the name of Rhea, who was an inhabitant of said Marblehead; by whom, or by some Coroner of the county of Essex, the writ ought to have been served.

<p>A sum of pme-money, claimed by several owners, having been deposited with an agent, to be kept until it should be “ legally determined” to which of them it belonged ; it was holden that no action would lie against the stakeholder until the question of property was first settled among the claimants by a judgment of law.</p>

Jn this case, which was a writ of entry, possession was demanded of an undivided moiety of two several tracts of land in the town of Chestervilh. At the trial, which was had on the general issue before Wilde J. at October term 1819, the demand-ant’s title was admitted; as was also the tenant’s title to the other undivided moiety of the land, the two tracts having been granted to the parties about twenty-one years since, to hold in equal moieties, as tenants in common.

Assumpsit for the support of a pauper alleged to have her legal settlement in Gardiner. In a case stated for the opinion of the Court, the following facts were admitted. Harriet, the pauper, was the grandchild of Isaac Hazard Stockbridge and Cooper his wife.

Trespass for taking and carrying away two cows, the property of the plaintiff. The defendant justified as collector of taxes for the town of Fayette.

<p>The Selectmen of a town have no authority by law to lay out a public landing, or place for the deposit of lumber.</p> <p>A general usage, like that of depositing lumber on the banks of a river, not accompanied by a claim of title, or an intention of occupying the land to the exclusion of the owner’s rights, cannot furnish any legal presumption of a grant.</p>

Trespass for cutting down and desti’oying part of a wooden bridge, the property of the plaintiffs. The defendants, in justification, pleaded that the bridge was erected on the land oí Kelly, without his license and against his will, and that he removed it from his close as he lawfully might do.

Assumpsit on a promissory note made by the defendants, for forty-seven dollars, payable to the plaintiff in English hay, hemlock bark, or good shingles.

The Legislature of Massachusetts, in order to open a communication between the District of Maine and the British province of Lower Canada, passed a Resolve June 12, 1817, directing the Commissioners for the sale and settlement of the public lands in the District of Maine forthwith to cause to be opened and completed a suitable road from the lands known by the name of Binghani’s Kennebec purchase to Canada line; and to take such measures as they might find necessary to obtain…

<p>Assumpsit for the support of a pauper. In a case stated for the opinion of the Court, the parties agreed that Betsey Watson, the pauper, and her father, had their lawful settlement in Litch-field prior to and on the seventeenth day of June 1817; at which time, by an act of the Legislature, a portion of the territory of Litchfield, [including the farm on which the pauper’s father had dwelt until within a few months previous to that day,] together with the inhabitants thereon, was annexed to Bmudoinham;— that said Betsey lived on said farm in her father’s family, about nineteen years, and removed therefrom about three years before the annexation ;—and that said farm was the last dwelling place and home of the pauper or her father.</p> <p>By the Stat. 1817. c. 48. a part of Litchfield was taken oft', and annexed to Bowdoinham. By this division and annexation Litchfield lost all jurisdiction over this territory, and could not afterwards derive any advantage from the land or from the services of the inhabitants who then lived or might afterwards live on it. And by the same act Bowdoinham acquired authority over the soil thus annexed, and the right to assess taxes upon the land and upon its occupants. Bowdoinham having thus succeeded Litchfield in the jurisdiction over the land, succeeds also to its burdens and liabilities. Groton v. Shirley, 7 Mass. 156.</p> <p>The farm on which the pauper and her father had resided for at least nineteen years before the division of Litchfield, anc! on which they had their last dwelling place and home, was in the territory annexed to Bowdoinham. The Stat. 1793. c. 34. in the tenth mode of gaining a settlement, provides that on the division of towns, every person having a legal settlement therein, but removed therefrom at the time of such division, and not having gained a legal settlement elsewhere, shall have his legal settlement in that town wherein his former dwelling place or home shall happen to fall upon such division. The, dwelling place here intended, is that from which the pauper removed out of the town. Salem v. Hamilton, 4 Mass. 679. Before the Slat. 1793. upon the division of a town, and the incorporation of a part of its inhabitants into a new town, the obligation to support the poor then out of its limits remained unaltered. The law in this respect is now, by that statute, for good reasons, materially changed. Windham v. Portland, 4 Mass. 384. The tenth mode of acquiring a settlement very clearly comprises all cases where, upon a division of towns,- a new town is formed ; and where, upon such division, a part of a town is annexed to another existing town, and no new corporation is created. The principal design of this provision was to afford a remedy for thc inconveniences experienced under the former law, by which the residue of a town, after the most extensive losses of territory and inhabitants by annexations to other towns, was still obliged to support all paupers returned, provided they were absent when the territory on which they had last dwelt was annexed to another town. ~fh Stat. 1793. establishes the setile~ ment of the paupers in the town in which the place of their last residence happens In fall; and thus the town acquiring new terrhoi~ is made to sustain the burdens equitably incident to the acquisition.</p> <p>The settlement of the pauper was not transferred to Bowdoin~ ham by the annexation, because she did not reside on the tcrri~ tory set off to that town. The statute has reference chiefly to persons, not to soil. It takes from Liici~fieid those persons who then actually resided on a certain portion of its territory, and transfers them, with the land, to Bowdoinham. This annexation, as it respects the legal settlement of the persons resident on the territory transferred, has the snme effect as the creation of a new town. Groion v. Shirlcy, 7 Mass. 1~6. West brook v. Fran1c~ fin, 15 .Mass. 254.</p>

Error, to reverse a judgment rendered in favour of the original plaintiff, now defendant in error. The action was replevin of divers beasts, said to have been unlawfully taken by the defendant. The issue being on the property of the plaintiff, it was found against him as to all but one cow, valued in the writ at twenty dollars; and for the taking of which the jury assessed damages at ten cents ; and judgment was thereupon rendered for the plaintiff, with full costs.

Trespass on the case, for a malicious prosecution before a military court of inquiry holden at Portland, on certain charges preferred by the defendant and two other officers of the 34th regiment of United States’ infantry, against the plaintiff, who was Colonel of a regiment of volunteers stationed at Eastporl, and in 1812, and 1813, was commandant of all the troops sta-lioned at the latter place. Of these charges the plaintiff had been honourably acquitted.

Debt on a bond, conditioned for the faithful administration of the estate of Joshua Woodman.

<p>If a widow waive the provision made for her in the will of her husband, she may have her dower assigned in his real estate ; 'out she can receive no part of Ills personal estate, if lie has disposed of it by will.</p>

This was a writ of error brought to reverse a judgment rendered upon the report of referees appointed by a rule of this Court.

This was an action of assumpsit brought to recover a debt due to the plaintiff from one James Boyd, the defendant’s testator.

In this action, which was debt on a recognizance, entered into before a Justice of the Peace, pursuant to Stat. 1782. ch. 21. one D. K. was summoned as the trustee of the defendant; and denying, in his disclosure in the Court below, the possession of any goods, effects, or credits of the defendant at the time of the service of the writ, was there adjudged not to be trustee.

<p>Assumpsit on a promissory note for fifty dollars dated March 19, 1809, alleged to have been made by the defendant, payable to George Hamlin or bearer. The defendant pleaded the general issue, and non assumpsit infra sex annos, which issues were joined.</p> <p>The defendant denying that he signed the note, several witnesses were called who testified to the handwriting, and that they had no doubt but it was his signature. To take the case out of the Statute of Limitations the plaintiff called a witness who testified that about two years since, the plaintiff sent the note to him requesting him to apply to the defendant for payment—that the defendant soon after called on him, and inquired if he held a note against him, and wished to see it—and after looking at it pronounced it a forgery, saying that he never signed it, and never had paid it, and never would pay it:—but also said that if he had signed it, or if it could be proved that he signed it, he would pay it.</p> <p>On this evidence the Judge who presided at the trial of the cause instructed the jury to find for the plaintiff, if they believed that the defendant did promise that he would pay the note provided it could be proved that he signed it, and that in truth he did sign the note : and they accordingly returned a verdict for the plaintiff, which was taken subject to the opinion of the whole Court upon the case as reported by the Judge.</p> <p>There is a strong current of public sentiment against those cases which go constructively to repeal the Statute of Limitations. They are already repudiated in the commercial world, and ought to be rejected universally. The statute is highly beneficial, and ought not to receive a strict construction.</p> <p>It is preposterous to treat a denial of the genuineness of a note as a promise to pay it if genuine :—or a denial of debt as a promise to pay :—and yet the evidence in this case amounts to nothing more than a strong asservation on the part of the defendant that the signature was a forgery, and his firm conviction that the plaintiff could never prove it otherwise. 4 Maulé & Seize. 457.</p>

Case for neglect of the duty of defendant as a Coroner, in the service of an execution in favour of the plaintiff against one J. S. whereby the plaintiff lost the benefit of his judgment.

ASSUMPSIT by the indorsee against the indorser of a promissory note dated May 17, 1812, signed by Ebenezer Mayo, and made payable to the defendant or order, for one hundred and fifty dollars in sixty days with grace, and by the defendant indorsed to the plaintiff. The defence was usury.

Assumpsit, brought to recover the balance of an account annexed to the plaintiff’s writ. A verdict was taken for the plaintiff, by consent of the defendant, subject to the opinion of the whole Court upon the facts stated in the report of the Judge who presided at the trial, which were as follows.

<p>An equitable claim, against an insolvent estate, though never presented to the commissioners, may still be shewn by way of set-off to an action of assump-sit brought by the administrator.</p>

DEBT on a bond given to the plaintiff in his capacity of Judge of Probate, by one Ridley and the other defendants his sureties, as guardian to certain minors.

Assumpsit for the support of Abigail Mowry and her infant illegitimate child.

Trespass de bonis asportatis. The defendant pleaded the gen.-eral issue, and filed a brief statement pursuant to Stat. 1792. c/s. 41. therein alleging in justification, that he was a deputy sheriff of this county, and that having in his hands three several executions, in favour of several creditors, against one James Dag-gett, by virtue thereof he took and sold the hay mentioned in the declaration, as the property of said James.

<p>This was an action of the case, in which the plaintiff declared that he, on the 21st day of June 1815, at Thomaston, loaded in and upon the schooner Fanny, whereof the defendant was master, five tierces and one half barrel of manganese, of a certain weight and value, in good order and well conditioned, from thence to be transported by the defendant and to be delivered in like good order and well conditioned, (the dangers of the seas only excepted,) at Boston unto David Stanwood or his assigns ;—eleven dollars, freight for said manganese, to be paid by said Stanwood to the defendant, with primage and average accustomedand that the defendant in consideration of the premises, promised the plaintiff that he would transport said manganese in said vessel from Thomaston to Boston, and well and faithfully deliver the same to said Stanwood or his assigns, in like good order and well conditioned, the dangers of the seas only excepted : and the plaintiff averred that although the schooner with the manganese on board sailed from Thomaston, and the dangers of the seas did not prevent the defendant from proceeding in the vessel to Boston, yet the defendant, contriving to injure and defraud the plaintiff’, did not transport the same manganese to Boston, and there deliver the same to the consignee or his assigns.</p> <p>The defendant pleaded the general issue ; and the plaintiff obtaining a verdict, the defendant moved, in arrest of judgment,</p> <p>1. “ That by law the said action is not maintainable by the “ plaintiff; but the action on the said bill of lading, if any can “ be maintained, should and ought to be brought by David Stan- “ wood, the consignee named in the bill of lading mentioned in “ the declaration.”</p> <p>2. “ That no cause of action is set forth in the declaration.”</p> <p>This motion was argued at the last term in this county by Orr, for the plaintiff, and Longfellozu and Bailey, for the defendant, and was continued for advisement, to the present term.</p> <p> For the motion. </p> <p>Bailey. The action should have been brought by the consignee. It appears by the declaration that he was liable to pay the freight, which is a sufficient indication of his ownership. It may also be well presumed that the bill of lading was duly indorsed and forwarded to Boston according to the usage of merchants in similar cases. And in either view the property was vested in the consignee. If he could maintain the action, then the remedy pursued in the name of the consignor is misconceived. Evans v. Martlet't, 1 Ld. Raym. 271. Abbot on Ship-. ping 41G, Dawes v, Peck, 8 D. & E. 330. 1 East 4. Barrett v. Regers, 7 Mass. 297.</p> <p>Against the motion,</p> <p>Orr. As to the objection that the declaration shews no cause of action, in other words, that there is no allegation or proof of property in the plaintiff; that was a matter of fact, which the jury have already settled by their verdict. Without such ownership, proved to the satisfaction of the jury, the plaintiff could not have had a verdict. It is true that the possession of the bill of lading is evidence of property in the consignee; but it is only prima facie evidence;—not conclusive ; and in this stage of the cause it is to be presumed that this evidence was successfully rebutted.</p> <p>As the consignee, therefore, does not appear to have been a purchaser of the goods, he is to be treated as a mere factor of the plaintiff, in whom no property could vest without actual possession ; and having neither property nor possession, he could maintain no suit respecting the goods. The shipper, and he alone, has the right to stop in transitu, except where the factor may have assigned the bill of lading to an innocent purchaser. In all other cases he may follow the goods into the hands of any person, even to the assignees of the factor, if he become bankrupt. Lickbarrow v. Mason, 2 D. & E. 63. Abbot on Shipping, [371.] 420. Ellis.v. Turner, 8 D. & E. 531. 2 Wheat, app. xxxiii.</p> <p>The case of a shipper of goods differs in nothing from that of a carrier of goods in any other vehicle. Buffinton v. Gerrish, 15 Mass. 156. The true question in both cases, as to the right to stop in transitu is, whether the goods were paid for or not. He who owns and consigns, has this right;—he who sells and consigns, has not. Wright v, Campbell, 4 Burr. 2050. Feise v. Ray, 3 East 93. Moore v. Wilson, 1 D. ⅜- E. 659. Davis & al. v. James, 5 Burr. 2680. Laclouch v. Towle, 3 Esp. 115.</p> <p>If therefore the plaintiff was, as the case finds him to be, owner and consignor of the goods, he alone could sue for not transporting them, the ship-master being his servant.</p> <p>A verdict finds the facts alleged in the declaration, and nothing more: and in this case it finds nothing as to the title of the plaintiff, because no such title is alleged in the des claration. If any thing is to be inferred from it, it would shew property in Stanwood, the goods being consigned to him, “ or his order or assigns.” If the plaintiff ever had any interest in the goods, he parted with it on the execution and indorsement of the bill of lading. Where this instrument is general, the legal presumption is that the property is in the consignee. A delivery of the bill to him passes the property ; and such delivery, it is to be presumed, was made. The transaction being commenced regularly, the law will presume that it was completed according to the custom of merchants,—that the bill was transmitted and received according to the course of trade;—and if legal presumptions may be taken as facts, the consignee, and he alone, is entitled to maintain this action.</p> <p>But whether the property was vested in the consignee or not, plaintiff cannot recover in this suit, his writ being materially defective in not setting forth any cause of action. The gravamen is, that the defendant did not deliver the goods in Boston, as he had stipulated to do. But the obligation to deliver, depended, by the terms of the contract, on the payment of the freight by the consignee; and this payment, or a tender of it, should have been alleged in the declaration. The verdict only finds that the defendant did not perform an act, which it does not appear that he was bound to perform.</p> <p>The action having stood over to this term for advisement the opinion of the Court was now delivered as follows, by</p>

ASSUMPSIT for money had and received. In support of the action the plaintiffs read a deed from the Proprietors of the Kennehec purchase, dated July 9, 1777, by which they granted a certain lot of land in Winthrop to the town of Winthrop, for the use of the ministry in said town forever.

This was a writ of entry, brought to recover possession of a parcel of land in Sidney, described by metes and bounds, whereof the tenant was said to have disseized the demandants.

Kanavan was indicted for that he counselled and advised M. E., then pregnant with a bastard child, to bring it forth alone and in secret; which child afterwards, by reason of the advice and procurement of the defendant, was born of said M. alone and in secret, and afterwards was found dead, concealed in the Ken-nebec river.

<p>Where the town in which a pauper had his settlement, being duly notified pursuant to the statute, paid the expenses of his support and removed him, but before he reached the place of his settlement he returned to the town where he had been removed, where he again became chargeable -, it was hol-den that the town in which he had his settlement was not liable for the expenses accruing after his return, without a new notice.</p>

Johnson being brought into Court upon a writ of habeas corpus sent to the prison keeper of the county of Cumberland, it appeared by the officer’s return that he had been prosecuted before a Justice of the peace, under Stat. 1793. ch. 59. sec. 8. for keeping a house of ill-fame, and sentenced to imprisonment in the common gaol as a house of correction, for a term which was not yet expired. shewed a copy of the Justice’s record, by which it appeared that, Johnson on being…

In an action of covenant upon the issue of non est factum, the plaintiff offered in evidence the deed declared on, which was in these words : “Know all men by these presents, that I Josiah “ Little of, &c. by virtue of a vote of the Pejepscot Proprietors, “passed on the first day of September 1784, authorizing and “ appointing me to give and execute deeds for and in behalf of “ said proprietors, for and in consideration of the sum of thirty- “ seven pounds to me in hand paid…

This action was brought to recover seisin and possession of a tract of land, described in the writ as being in the town of Pitts-ton in the county of Kennebec.

HeBT on an administrator’s bond. The defendants having had oyer of the bond, in their plea set forth the condition, and alleged performance generally of the matters therein contained.

This was a writ of entry, at the trial of which, at June term 1818, the jury found a verdict for the demandant; and under Stat. 1807. ch. 75, found the increased value of the demanded premises by virtue of the buildings and improvements made by the tenant to be six hundred dollars, and the value of the land, exclusive of the buildings and improvements, to be seventy-erne dollars and forty cents.

This was a writ of entry, in which the demandant counted on his own seisin, and a disseisin by the tenant. The land was formerly the estate of one Bucknam ; but the demandant, having recovered judgment in a personal action against Bucknam, Nash and Wass, extended his execution with the legal formalities on the demanded premises, and caused the extent to be recorded according to the statute.

<p>ASSUMPSIT. The plaintiff alleged in his declaration that he had made two notes of 2500 dollars each to the Saco bank, and renewed them from time to time, for the use and benefit of the defendants, upon their promise to indemnify him against the payment of said notes ; but the defendants had not indemnified him, but suffered him to be sued, and his estate taken to satisfy said notes, Also, that certain persons, for whose doings the defendants are liable, elected the plaintiff one of a committee to build a new meeting-house, and promised that if he would accept the office and execute its duties, they would elect faithful associates with him, for whose doings they would be responsible ; but that he had suffered damage by the misconduct of hi* associates, &x. for which he was not indemnified.</p> <p>The defendants, besides the general issue, pleaded in bar that the plaintiff, with other persons named in the pica, commenced and prosecuted to final judgment a suit against the de fendants, and that the cause of action in this suit was included, in and was part of the same cause of action commenced by the plaintiff' and others against the defendants.</p> <p>The plaintiff’ replied that the parties in the former suit and ' the parties in this suit were not the same, and that the cause of action in that suit and in this were not the same ; and tendered an issue to the country -which was joined.</p> <p>^At the trial of this issue, before Wilde J. at November term 1819, the defendants read in evidence the copy of record of the former judgment, mentioned in their plea, by which it appeared that the action while pending had been submitted to referees under a rule of Court; and proved by two of the referees that the sum recovered in judgment by the Saco bank against Scammon and set forth in his declaration, was allowed to Scammon and others, plaintiffs in the action mentioned in the plea in bar; and that their award, upon which judgment was rendered, was for the balance due to Scammon and others, after allowing them the amount of the judgment in favour of Saco bank, and sundry other charges; and it was admitted that the amount of this judgment in favour of Scammon and others was paid to Scammon,</p> <p>The plaintiff then offered to prove that certain individuals, for whose doings the defendants are by law liable, on the fifth day of January 1802 elected the plaintiff first, and afterwards, at the same meeting, chose four other persons, viz. Seth Slorcr, Foxwell Cutis, James Gray and Edmund Moody a committee to build a meeting-house now owned by the said proprietors that the committee proceeded to build the house ;—that the proprietors, on the seventeenth day of September 1803 at a legal meeting authorized the committee to borrow money to complete the house;— that accordingly they hired of Saco bank 5000 dollars, for which they gave two promissory notes signed by some of the committee and indorsed by Scammon, who in fact received no part of the money, it being paid to Gray, Cults and Storer;— that said notes after being several times renewed, were at last taken into one note, signed by Cults and Gray and indorsed by Scammon, who was sued as indorser, and his estate taken in execution to the amount of 3,341 dollars in part payment thereof; -—that Cutis is dead leaving no estate, and that Gray is insolvent.</p> <p>The plaintiff further offered to prove by the records of the proprietors that the committee on the tenth day of April 1805, were directed to discharge all the debts of the proprietors, except the sum due to Saco bank ; and that on the second day of January 1811 their treasurer was directed to pay in the first place the sum due to Saco bank;—and further offered to prove that each member of the committee received and paid out money of the proprietors without the concurrence of his colleagues, and kept his accounts with the proprietors alone; and that these facts were known to the defendants;—that large sums of money were received and misapplied by Cutis and Gray, but that the plaintiff had been faithful in his office, and had truly accounted for all money by him received.</p> <p>All this evidence offered by the plaintiff was rejected by the Judge, on the ground that the plaintiff, having recovered, with the other members of the committee, the sum of 3341 dollars in the former action, could not recover it again in this ; although it should appear that he had suffered by the unfaithful conduct and insolvency of his colleagues; no evidence being offered to prove that he had sustained any damages beyond the amount of the sum so recovered in the former action. A verdict was thereupon taken for the defendants, subject to the opinion of the whole Court upon the question, whether this evidence ought to have been admitted.</p> <p>This question was argued by J. Holmes and Shepley for the plaintiff, and Emery for the defendants, before Weston J. at the last April term in this county, the Chief Justice, and Preble J. having formerly been of counsel, and therefore not sitting in the cause.</p> <p>The plaintiff, with other persons, having been chosen a committee to build a meeting-house, and a portion of the funds placed in their hands for this purpose having been misapplied by some of his colleagues, the question is, on which of the parties the loss thus occasioned shall fall ?</p> <p>This question will be ans’wered by considering, first, whether the plaintiff would be entitled to recover upon the facts stated, if the former judgment does not operate as a bar ;—and secondly., whether the money now sued for, has already been recovered in the former action ?</p> <p>As to the first point, the plaintiff ought to recover, unless the responsibilitj1' of the committee was joint, and not several. But to create a joint responsibility, there must be a joint act, or a prospect of joint gain. The latter there could not be, from the •nature of their business ; each laboring for his own reward, and entitled, like one of a board of Selectmen, to his compensation according to his individual labour, and not according to the total amount performed by the whole committee. Nor did they act jointly. Each one received and paid money, and kept his own accounts without the concurrence of his colleagues ; and even in the act of borrowing from the bank, each received for himself, as he thought proper, though several joined in the security given. But if it was a joint act, yet it was not a voluntary association, for the purpose of joint profit, but merely a concurrent performance of an order of the proprietors, who alone ought to be answerable. The relation in which the committee stood to each other may be likened to the case of joint prize agents, one of whom squanders the money,—as in Penhallow v. Doane’s adrrfrs. 3 Dali. 88. 103. 115.—or to joint trustees under a will, as in Kips, admlr v. Denis ton, 4 Johns. 23. Cro. Car. 312. 1 Eq. Ca. Mr. 398. 1 Atk. 89. 3 Atk. 583. 2 Vern. 515. Ambl. 218. 4 Ves. jr. 596.—or to joint managers of a lottery, as in Gilbert v. Williams, 8 Mass. 476.</p> <p>And if the legal interest and cause of action be several, although the words of the contract are joint, each may sue separately. 1 Chitly on Pleading 6. Eccleston v. Clipsham, 1 Sound. 1 53. note 1. Shaw ¶. Sherwood, Cro. El. 729. Tippet v. Hawkey, 3 Mod. 263. Anderson v. Martindale, 1 East 497. Osborne v. Harper, 5 East 225. Wilkinson v. Lloyd, 2 Mod. 62.</p> <p>Justice requires that every man be permitted to seek redress unincumbered with associates, if no injustice is thereby done to others. And the law sustains such separate action on very slight grounds. Hall v. Leigh, 8 Crouch 50. Blakeney v. Evans, 2 Crunch 185. Harris v. Johnston, 3 CranchSH. Dunham ■v. Gillis, 8 Mass. 462. Wilkinson v. Lloyd, 2 Mod. 82.</p> <p>As to the second point,—whether the sum now sued for has been recovered in the former action,—it is observable that that action was brought to settle the whole account between the committee and the proprietors, supposing all to have acted faitli-fully ;—this is to recover damages for a loss suffered by the plaintiff by the misconduct of some of his colleagues;—that was to ascertain whether a deficiency had happened in the funds, and how it was occasioned ;—this to recover the loss which was discovered by that investigation ;—that suit was in the nature of an action of account, to settle the money transactions of the concern ;—this is of the nature, and resembles an ac tion of the case for the unfaithfulness of the defendants’ servants ;■—there was no count, in the former writ, for any cause except the adjustment of the accounts of the parties ;—but the gist of the present action is the unfaithfulness of the men whom the defendants appointed to act with the plaintiff, and the money counts only serve to shew his own estimate of the extent of the injury. There was no claim advanced, in the former suit, for any damage to the present plaintiff exclusively ; but this action is brought to recover for a loss sustained by him alone.</p> <p>Had the committee, in that action, jointly claimed of the defendants a sum squandered by one of themselves, the demand could not have been supported for its absurdity. Is it not equally absurd to permit the defendants to claim the benefit of such a sum byway of offset in this action ?</p> <p>The objection thus considered amounts to this, that the plaintiff ought not to recover in this action for the misconduct of his colleagues, because he adopted the only measure which could bring that misconduct and his own injuries to light; by joining with them in a suit against the proprietors, in which all the conduct of the committee might be the subject of investigation.</p> <p>But in whatever light the plaintiff’s claim may be regarded upon the points submitted, yet the verdict ought to be set aside and a new trial ordered, because the question decided by the Judge was a question, not of law, but of fact; and should have been determined by the jury.</p> <p>Whether an action can be maintained for a cause already determined in a prior suit between the same parties, is a question of law; but whether the plaintiff in this action has already recovered the subject matter of his suit by a former judgment, was the fact to be tried. It was a question of identity of the two causes of action, and might have been given in evidence under non assumpsit. 7 Crunch 565. It was a fact put in issue to the country, and therefore improperly tried by the Judge.</p> <p>The evidence offered was rejected, not because it was illegal, or irrelevant; but because, in the opinion of the Judge, it was not sufficient to explain or rebut the testimony offered by the defendants. But no such case existed as authorized the Judge to decide on the weight of evidence. The great point in issue between the parties was, whether the plaintiff or the defendants were responsible for the misconduct of his colleagues ; and this question never has been tried.</p> <p>It is apparent from the report of the Judge that the committee were all chosen u at the same time”; and if the plaintiff was unwilling to act with his colleagues, he might have declined on the spot. He wras under no constraint; and consenting to serve, he consented to risk the fidelity of the others. There is no stronger implication of a request by the defendants to the plaintiff to serve, and a promise on their part to indemnify him, than there is of a request by the plaintiff to obtain the office, and a promise on his part to risk the consequences of the misconduct of his colleagues. The engagement was mutual. It was joint on the part of the committee ; they acted jointly; received the money jointly, and might have controled each other in its expenditure, or divided it among them. The injury complained of was the payment of money to Saco bank, the borrowing of which was a joint act of all the committee except Moody. The money was originally paid over to Gray and Cults, and the notes indorsed by the ’plaintiff as last indorser. The plaintiff therefore had the control of the whole sum taken from the bank, and if it was squandered, it was paid, with his express assent- to the persons who squandered it. All joined in the act; and if only one received the money, yet all are liable. Tolleds Ex. 485.</p> <p>As to the identity of the two causes of action ; the first suit shews a complete developemcnt of all the concerns of the defendants and of the committee, and a demand of the sum now sued for, which was allowed to the plaintiffs. The former judgment was in effect in favour of the present plaintiff; he elected a joint remedy; the action was brought at his instigation ; there was a joint investigation of the accounts, and a joint judgment, and the plaintiff received its amount. If he was not willing that the money thus paid to Saco bank should be allowed by the defendants to the whole committee, he should at least have protested against its allowance before the referees. He has voluntarily placed himself in the situation he complains of; has sought his remedy by another action, and has had it.</p> <p>Courts regard rather the substance of the action, than any niceties of form. In pleading the pendency of another suit, in Chancery, it is not necessary to aver identity of parties. It is against the policy of the law to permit a party to be twice vexed for the same cause of action ; and the law will repress every attempt to try, by any other forms of action, what has once been tried. Cooper’s Plead. 272. 273. Calhoun v.. Dunning, A Dali. 120. Bird v. Randall, 3 Burr. 1353. Ferrar1 s case, 6 Rep. 7. 3 Lev. 1 80. 1 Com. Dig. Action, K. 4. Higgins1 case, 6 Rep. 45. Ward v. Johnson, 13 Mass. 148;</p> <p>Nor did the Judge, in rejecting the evidence offered, invade the province of the jury. The main question was whether the defendants were liable for the misconduct of the plaintiff’s colleagues ; and this, it is obvious, was a question of law.</p> <p>Where agents are appointed by a corporation, they are not responsible for the conduct of each other. The trust confided is to them or either of them. Here the duties of the committee were necessarily diverse, each performing a distinct part of the service, and responsible to the proprietors for his own misdoings. The committee had no control over the conduct of any one of their number for he was not their agent, but the agent of the proprietors. If he squandered the money in his hands, it was not the money of the committee, but of the corporation. Could the committee remove him for breach of the trust ? And if he is not amenable to his colleagues, by vfhat rule of law or equity are they to be made liable for his misconduct ?</p> <p>As to the former action; it exhibits a view of the relations between the proprietors and their committee collectively, but nothing more. It shews that the proprietors were indebted to their agents in a certain sum beyond what monies they had advanced. This sum was paid to the present plaintiff, who had a right to receive it as one of the co-plaintiffs in that action ; and it has extinguished so much of his claim of 3341 dollars. But that recovery is no bar, unless the cause of action is identical with this ; which it is not unless the same questions can be discussed, the same evidence offered, and the same result obtained.</p> <p>The trial of the present action had advanced as far as this question,—whether the plaintiff had abandoned his right to maintain a separate action for his own damages by uniting with his colleagues in a joint action ?—and it ought to have been left to the jury to determine whether his acts amounted to such intentional abandonment or not.</p>

ENTRY sur disseisin, wherein the demandants count upon their own seisin within thirty years, of the lots numbered eleven and twelve, in the first range, and eleven in the second range of lots in the town of Shapleigh, lying within the limits of the East parish in said town ⅛ and a disseisin by the tenant. It was tried upon the general issue.

Scire facias against bail, originally brought before a Justice of the peace, and thence carried by appeal to the Circuit Court of Common Pleas; where, the pleadings before the Justice being waived, and oyer granted of the bail-bond, the defendant pleaded in bar of the action.

Belt on bond. Upon oyer of the condition it appeared that the defendant and divers others, styling themselves members of the first Baptist Society in Sanford, being assessed for the support of the congregational parish and ministry in that town, against their religious principles, which taxes they were “determined not to pay unless compelled thereto by law”, hound themselves to pay each one his proportion of the expenses of defending any suit which might be commenced against…

<p>This was a hill in equity brought to redeem certain estate mortgaged by the plaintiff to the defendant’s intestate^</p> <p>It appeared that August 25, 1810, the plaintiff executed to Cyrus King,Esq. a deed of mortgage of sundry parcels of real estate, of which the estate described in the bill was apart, conditioned to pay $2,935,38 and interest to said Cyrus King, or to the Saco Bank on or before a certain day, it being the amount of two promissory notes given by the plaintiff to Mr. King and by him indorsed to the Bank, for the proper debt of the plaintiff. These notes being paid and taken up by Mr. King as indorser, he sued the plaintiff for the amount, and recovered judgment, which was partially satisfied June 15, 1812 by extent upon certain real estate of the plaintiff. Part of the estate thus extended upon, was included in the mortgage, and was sold June 13, 1815, by Mr. King for a sum larger by six hundred dollars than its value as appraised on the extent. And the residue of his debt being unsatisfied, he afterwards entered into the estate described in the bill, for condition broken.</p> <p>The bill being referred to a master to take an account of rents and profits, he reported the foregoing among other facts, treating the land extended upon as a satisfaction to the amount of its value as estimated by the appraisers, and not as afterwards, sold by Mr. King at private sale.</p> <p>And now Emery, of counsel with the plaintiff, moved that the report be amended by adding the sum of six hundred dollars, being the difference between the price of part of the mortgaged premises as appraised, and the amount it was afterwards sold for, with interest from June 13, 1815 being the time of sale. He contended that the judgment recovered by Mr. King being rendered upon the notes far which the property was mortgaged, nothing passed by the extent upon the same property. A mortgagee cannot be admitted to change his character as such, and thus to deprive the mortgagor of the avails of the estate thus mortgaged; because, by accepting the mortgage he agreed that the mortgagor, as to that estate, and for that debt, should have rights different from those he would otherwise possess. He is merely a trustee, and must account for every profit; •and the amount of the sale by Mr. King must therefore be taken as extinguishing so much of the debt. Hicks v. Bingham, 11 Mass. 300. Goodwin v. Richardson, 11 Mass. 469. Dickens' Rep. tit. Mortgage in Index.</p> <p>contended that whatever might be the gain on the sale of this particular parcel of land, yet it did not appear but that on a sale of the other parcels there would be as great a loss, which must be borne by the creditor, as he could have no remedy against the debtor for the deficiency. And as to the effect of the extent, it might well change the relation in which the parties stood as to that land ; for the creditor might have seized and sold any other of the debtor’s goods, or extended his execution upon other lands, and it would be good and the mortgage was but a lien on a part of the debtor’s estate, and not a selection of that part as a fund to which the creditor was bound to resort; nor did it place this property in any different situation from the other estate of the debtor, all of' which was equally liable. It was a privilege secured to the creditor, to make his debt safe; and not a burden imposed on him, to embarrass him, at all events, with an equity of redemption.</p>

TlilS was a complaint to the Circuit Court of Common Pleas pursuant to Slat. 1795. ch. 74. respecting the support and regulation of Mills; in which the complainant alleged that he was seized in fee of a certain tract of land in Fryeburg, and that the respondent erected and kept up a mill dam across a brook there, and by means thereof caused the water of the brook to overflow his land, and destroy his timber, wood and grass growing thereon ; and praying that a warrant might…

This was an application for a writ of certiorari, to qüash a record of the Circuit Court of Common Pleas in a prosecutioii there, wherein the petitioner had been adjudged the putative father of a bastard child.

This was a writ of entry, brought to recover possession of certain lands in the town of Brownfield.

SCIRE facias. The plaintiffs had formerly brought against the defendant a writ of entry sur disseisin, upon which a trial being had at October term 1808, a verdict was returned for the plaintiffs ; and the defendant in that action having prayed an appraisement of his improvements made on the land, and the plaintiffs requesting an estimate of its value without the improvements, the jury appraised both accordingly, pursuant to Stat. 1807. ch. 75.

ASSUMPSIT on a note of hand given by the defendant to the plaintiff, of the following tenor :—“ Portland, January 16, “1815.

At the trial of an action pending between the parties, the respondent obtained a verdict, principally by means of the testimony of one Philbrook, whom the petitioner himself had called as a witness, and who was afterwards tried and convicted of perjury in the same testimony; whereupon the petitioner prayed that a writ of review might be granted him, because of the perjury by which the former verdict was obtained. argued that the writ ought to be granted, its object being the…

<p>The Slat. 1797. ch. 50. [Revised Statutes ch. 59. sec 7.] authorizing judgment in certain cases against an absent defendant at the second term, does not apply to a process offoreign attachment; but in such process, if ihe principal be rbsent, the cause shall be continued till the third term, by A tat. 1794. ch. 65. sec. 2. [Revised Statutes ch. 61. sec. 3.]</p>

rp J. HIS was an action of assumpsit for the expenses incurred by the plaintiffs in the support of a pauper, his wife, and seven minor children; and the only question reserved was, whether the notice given to the defendants was sufficient.

A.FTER the commencement of this suit, and after the examination of the trustee, the original defendant died, his estate was represented insolvent, and commissioners were appointed to receive and examine the claims of creditors ; and the question was, whether the foreign attachment was thereby dissolved 1

Scire facias against the defendant as bail for one Wilson. Plea that the defendant never became bail for said Wilson; and issue thereon.

<p>This cause was ordered to a new trial by the Supreme Judicial Court of Massachusetts immediately before the separation of Maine from that State, by a written order of the Court transmitted from Boston to the Clerk of this county. But the report of the case not being as yet printed, [since published in 16 Mass. 42.] and the principles of the decision not having been distinctly ascertained, it was opened de novo at October term 1820.</p> <p>The tenant claimed title, as before, under Jonathan Elwell, the demandant, by virtue of a deed executed by Joshua Elwell his attorney, whose authority to make a deed of the premises in the name of his principal was admitted to be sufficient. This deed, after a recital of the substance of the letter of attorney, was in the following words : “ Now know ye, that I the said Joshua, by “ virtue of the power aforesaid, in consideration of two hun- “ dred dollars paid me by J. S. and T. P. S. of,&c. the receipt “ whereoí I do hereby acknowledge, do hereby bargain, grant, “ sell and convey unto the said J. and T. a certain tract of land, “ &c.-To have and to hold the same to them the said J. and “ T. their heirs and assigns forever. And I do covenant with “ the said J. and T., that lam duly empowered to make the “ grant and conveyance aforesaid; that the said Jonathan, at the “time of executing said power was, and now is, lawfully seized “ of the premises, and that he will warrant and defend the same “ to the said J. and T. forever, against the lawful claims and “ demands of all persons. In testimony whereof I have here- “ unto set the name and seal of the said Jonathan, this,” &c. Signed Joshua Elwell, and a seal—and acknowledged by the said Joshua to be “ his and the said Jonathan's deed,” before a magistrate.</p> <p>But the Judge who presided at the trial of the cause ruled that this was not the deed of the demandant, and therefore could not operate to pass the fee from him.</p> <p>The tenant then shewed the deed of Thomas Buckmar, collector of taxes for the town of Northport, in which the land lies, conveying the premises to the tenant, as purchaser at a sale for non-payment of taxes. It appeared that there were five distinct taxes assessed and committed to the collector in separate bills, for the non-payment of all which the land was sold. The only objection made to the validity of the sale was, that in one of these assessments the overlayings exceeded, by ten dollars, and thirteen cents, the amount authorized by the statute.</p> <p>The Judge ruled that this objection was fatal to the tenant’s title under the collector’s deed ; and a verdict was thereupon taken for the demandant, subject to the opinion of the Court upon the facts above stated.</p> <p>argued, as to the first point, that the deed must be taken to be the deed of the de-mandant, unless it was plainly the deed of the attorney. The seal is expressly declared to he the demandant's, and the intent of the conveyance, as is manifest from inspection, was to convey the estate in execution of the power. The cases where the attorney has been held answerable personally on his covenants or other engagements are cases where he acted either beyond his authority;—as where administrators covenanted to warrant, Sumner v. Williams, 8 Mass. 162. 209.—to perform an award, Barry v. Rush, 1 D. & E. 691.—and where a guardian gave a promissory note ; Thatcher ¶. Dinsmore, 5 Mass. 299.—Or without any authority whatever ; Appleton v. Binks, 5 East 148. Tippets v. Walker, 4 Mass. 595. Tucker v. Bass, 5 Mass 164.—Or where he does not name his principal, or does not express in the instrument the authority under which he acts; Stackpole v. Arnold, 11 Mass. 27. Mayhew ¶. Prince, 11 Mass. 54. Arfridson v. Ladd, 12 Mass. 173. White v. Cuyler, 6 D. & E. 176.—Or where he expressly covenants in his own name; Fowler v. Shearer,! Mass. 14. If the instrument be executed in the name of the principal, or distinctly declare the person intended to be bound, it is enough. Long v. Colburn, 11 Mass. 97. Wilkes v. Back, 2 East 142. And as in this case the attorney had sufficient authority, which is recited in the deed, in which the party intended to be bound is plainly shewn to be the demandant, whose seal is affixed; and as the attorney has not exceeded his authority, the deed cannot be considered as his, and is therefore the demandant’s.</p> <p>As to the second point, they contended that no injury could possibly result to the owner of land by supporting a collector’s sale where one of the taxes was legally assessed. The valúation and copy of the assessments being lodged in the proper office would always enable him to ascertain what taxes were legally assessed, and these might be tendered at any time within two years and the land redeemed. The expenses would generally be the same on a sale for one tax, as for more than one ; and if not, the owner might tender his proportion. Colman v. Rnderson, 10 Mass. 105. 117.—119. Pejepscot Prop’rs v. Ransom, 14 Mass. 145. The decisions as to sales of personal chattels it is true are otherwise, and for other reasons.. .¿There the act is entire, and there is no method of separating the good from the bad. The sale is absolute. The owner has no time to redeem his goods ; and thus the illegal tax necessarily affects the whole proceedings. Libby v. Burnham, 15 Mass. 147. Stetson v. Kempton, 13 Mass. 283. In this latter case the tax wras illegal in its object.</p> <p>The first point has already been settled, by a Court of competent jurisdiction, after long deliberation, and upon the weight of authority. But the deed is the deed of the attorney. Here are his covenants, in the words “/ grant, sell and convey,” which import a covenant of quiet enjoyment. Here is also his name, and a seal, and he acknowT edges it to be his deed before the magistrate. If this were an action of covenant against him, the Court would reject as sur-plusage all things contrary to his covenants. Worthington r, Hylyer, 4 Mass. 196.</p> <p>As to the other point; it has been holden for many years that a title under the provisions of a statute must be made out strictly ¡ and nothing is presumed but in favour of ancient conveyances, which this is not. The copie* of the valuation and assessments being duly filed, purchasers may easily know what sort of titles they buy ; and if they purchase those which are unsound, it is their own folly. If trespass will lie for selling personal chattels on a tax illegal by excessive overlayings, a fortiori a sale of lands in such case by a collector is void.</p>

Debt on an arbitration-bond, dated March 1, 1815. There were several issues in the case, among which was that of non est factum. To prove this issue on their part the plaintiffs produced the bond declared on, which appeared to be executed by James D. Wheaton as the agent and attorney of the defendants, and to be made in virtue of a power given by the defendants to the attorney, dated January 9, 1815.

iV_T the trial of this action, which was a writ of entry, the tenant shewed a deed of the premises from one Grant to Richard Major dated April 7, 1798, and a deed from Major conveying all his right in the premises to the tenant and Mr. Cottenll in mortgage, bearing date September 2, 1807, and failing to make out a title against the demandants whose original right to the land had been admitted, he requested that the increased value of the demanded premises by reason of the…

<p>This was assumpsit upon a promissory note dated December 23, 1814, for the sum of $166,67 made by the defendants and payable to the plaintiff or his order in four years from the date; to which the defendants pleaded the general issue.</p> <p>At the trial of this issue the defendants offered in evidence a deed from the plaintiff to them, of even date with the note de-dared on, the consideration of which was six promissory notes, of which the note in suit was one, and which, being each for the same sum, amounted in the whole to a thousand dollars, of which three had been paid. The deed contained the following covenants, viz :—“ And I do covenant with the said Jewell and Man- “ ud their heirs and assigns that the premises aforesaid are free “ of all incumbrances by me made, that I have good right to “ sell and convey the same to the said Jewell and Manuel as “ aforesaid, and that I will warrant and defend the same to “ the said Jewell and Manuel their heirs and assigns forever, t( against the lawful claims and demands of any person other “ than the said Jewell and Manuel their heirs and assigns; Upon “ condition that the said Jewell and Manuel their heirs and as- “ signs shall not demand or receive of the said James Lloyd his “ heirs, executors, or administrators by virtue of the grant or “ covenant aforesaid either express or implied, and for the “ breach or non-performance of the same, any greater or further “ sum than the amount of the consideration aforesaid with interest w thereon after two years, payable in cash to the amount receiv. v ‘ ed on said notes and the residue by delivering up to be cancelled “ such of the aforesaid notes as may remain unpaid”.</p> <p>The defendants then proved that to_a specific part of the premises described in the deed, the plaintiff, at the time of making the conveyance, had not any title ; but the same was, and still continued to be, in the actual possession of a stranger who was the lawful owner; so that no title, to this parcel passed by the deed to the defendants. They also proved that this specific parcel, being estimated by the price they gave for the whole premises, was of the just value of $191,10, being more than the amount of the note declared on.</p> <p>To the admission of this evidence the plaintiff objected ; but the Judge who presided at the trial of this cause, for the purpose of presenting the question to the whole Court, overruled the objection, and a verdict was returned for the defendants.</p> <p>The plaintiff thereupon moved for a new trial, for the following reasons, viz :</p> <p>1. Admitting there had been a failure of title to any part of the premises described in the plaintiff’s deed, the defendants must resort to the covenants in the deed, and ought not to be permitted to go into the title by way of defence to this action.</p> <p>2. If the defendants may set up the facts proved by way of defence to the notes, yet it appears that there are two notes, beside the one in suit, still remaining due and unpaid ; which notes amount to a much larger sum than the deficiency proved, and by the true construction of the covenants in the deed the defendants must first pay for so much of the premises as they have good title, and then, for the sum remaining due, they may set up the deficiency in quantity by way of defence.</p> <p>R. Williams, being about to argue for the plaintiff in support of his motion, was stopped by the Court.</p> <p>Public policy dictates that the defence should be made in this action, if it can be done consistent with the rules of law, as circuity of action will thereby be avoided. The rule that the consideration of a note of hand may be inquired into, as between the original parties, has been too long established to be brought now in question. But it is said that the covenants in the plaintiff’s deed forra a consideration for the note, to which the defendants must resort for their remedy. The question, however, is not whether the defendants might not have a remedy on the covenants, but whether they are so confined to that remedy that they cannot offer the defence here. Courts have latterly been inclined to permit a defence to be set up in certain cases where there was another remedy, though the older opinions were otherwise. Everett v. Gray, 1 Mass. 101. Taft v. Montague, 14 Mass. 282. Barton v. Butler, 7 East 479. Sill v, Rood, 15 Johns. 230. 1 Campb. 190. Winter v. Livingston, 13 Johns. 54. In Bliss v. Negus, 8 Mass. 46. the Court strongly intimate their opinion against the objection to such a defence. But Frisbec v. Hojfnagle, 11 Johns. 50. is expressly in point. It was an action on a note, the consideration of which was a deed of a tract of land with a covenant of warranty; and the defendant was permitted to prove that there had been a failure of title. And though the defendant had never been evicted or disturbed, the Court held that the defence was good, observing that to allow a recovery in this case would lead to a circuity of action, for the defendant on this failure of title would be entitled immediately to recover back the money. So in debt for rent where there is a lease for a term of years, and the lessor covenants for quiet enjoyment, the defendant after being evicted by a paramount title may plead in bar that the plaintiff had no title to the premises leased, notwithstanding he might have a cross remedy by action on the covenant. Haines v. Mallby, 3 D. & E. 438.</p> <p>The peculiar terms and stipulations contained in this deed are of a nature to remove the objection relied on. The notes are particularly described in the deed as forming the consideration, and the covenant is to pay for any defect of title by can-celling notes if they should remain unpaid at the time of the breach, By this reference in the deed, to the notes, they become as one instrument, and this renders it proper that when an action is founded on one part, the other should be received in evidence.</p> <p>The inconvenience arising from trying the title to real estate in an action brought to recover the consideration-money, is imaginary ;—it is no greater than arises from trying the title to personal estate in an action on a note given for its value, which is a case of frequent occurrence. Special pleading may always be resorted to, whenever it is desirable to prove by the record the precise nature of the subject in controversy. The record in this case, with those averments which it would be competent for the plaintiff to make and prove, would be a bar to any action which the defendants might bring on the covenants, which would be virtually, in the terms of the deed, “ giving up the notes to be cancelled.”</p> <p>Nor is the objection that the evidence does not apply to this, but to the last note, of any more validity. That would be altering the terms of the credit from six to five years, in consequence of a breach of the plaintiff’s own covenant. We contend that, it is at the defendants’ election to apply this evidence to either note. But if the election was with the plaintiff, he has waived it by not exercising it, and thus has given the right to the defendants. The other notes may be transferred to bona fide in-dorsees, without notice, and thus the defendants be deprived of that equitable offset which justice obviously requires, and which the parties themselves intended, as is evident from the stipulations in the deed.</p> <p>Public policy does not seem to require that the defendants be admitted to this defence. On the contrary numerous mis-chiefs would result from it. It is true in general that mutual demands may be set off against each other; but this doctrine has never been extended beyond mutual assumpsits. Nor could a judgment for the defendants in this action be a bar to an action on the covenants'in the deed. For how could the present plaintiff avail himself of it ? It would not be an accord, for a judgment is rendered in invitum ;—nor a satisjaction, because nothing would be paid;—neither would it be an extinguishment of the covenant, because no security would be given by the defendants to the plaintiff!, of as high a nature as the deed. 3 East 252. Neither would the record shew' to ivhich covenant in the deed the matter of this defence was applied. And if the defendants should aliene the land, and their grantee be evicted from the parcel in question, the plaintiff would be liable a second time, to such grantee, as assignee of the covenants. This defence also goes to abridge the plaintiff’s remedy against his warrantor, by depriving him of the right of voucher; for even if he should notify his warrantor of the pendency of this suit, the record could be no evidence in a subsequent action against him.</p> <p>As to the question to which note the covenant should apply, this is at the election of the plaintiff. If his covenant is broken, he is to pay the damages in notes or money, at his own election ; and if he elect notes, it is with him to choose which of them he will deliver up,</p> <p>The case finds that the plaintiff’s covenant was broken at the moment it was made, there being an actual adverse occupancy of part of the land. The plaintiffinstantly became debtor to the defendants, to the amount of the incumbrance. The covenant being thus broken, of which the plaintiff was bound to take notice, he had an election in what manner to pay the’damages ; but he should have elected immediately, and notified the defendants, tendering the notes or money to the value of the breach. Such a tender might have been shewn in bar to an action on the covenant. But where the debtor has an election which he neglects to make, it results to the creditor, who may make it, even at the time of trial; and such election the defendants now make, by insisting on the right to set off the damage against the note in suit,</p>

The writ in this case having been served by a deputy sheriff who was at the same time a stockholder in the Bank, the de* fondants pleaded that fact in abatement, alleging that the deputy sheriff being a stockholder and so a party to the suit, the writ should have been served by a coroner, within the provision of Revised Slat. ch. 93. The writ does not run against the corporators, personally, but against the corporation.

This cause, which was assumpsit upon a promissory Rote, came before the Court upon a point reserved by the Judge who presided at the trial, and who directed a verdict for the defendants, subject to the opinion of the Court upon the facts appearing in evidence, which were these.

<p>In this action, which was brought to recover seisin and possession of a parcel of land in Scarborough, the demandant counted on his own seisin within thirty years, and alleged a disseisin by the tenant, who pleaded nul disseisin.</p> <p>To prove the issue on his part the demandant offered in evidence an attested copy of a judgment of the Court of Common Pleas, held at Portland, May term, 1796, on the petition of the demandant for partition of certain lands, of which the demanded premises were a part. This judgment recited the substance of the petition, and an order of notice thereon,—stated that notice had been given pursuant to the order,—that no objection was made against the petition,—that thereupon a commission was issued to certain freeholders to make partition according to law,—that the process was thence continued to a subsequent term,—at which time the commissioners made report of their doings, setting off the demanded premises to the present demandant,—“ which report is accepted by the Court.” And it appeared that the partition was recorded in the Registry of deeds.</p> <p>The counsel for the tenant objected to the admission of this judgment in evidence, until the petition for partition, under which the proceedings in the Court of Common Pleas were had, was first produced;—and further objected the irregularity and deficiency of the proceedings, apparent on the face of the judgment itself;—and also that it varied from, and was even inconsistent with the several entries in the dockets, made from term to term under the case of said petition for partition while the same was pending in the Court of Common Pleas, and offered the several dockets referred to as evidence to support this last objection. But the Judge who presided at the trial of the cause, for the purpose of saving the questions of law for the consideration of the whole Court, overruled all these objections.</p> <p>The tenant then proved by several witnesses that since the judgment and proceedings in partition, the tenant had held the exclusive, quiet and undisturbed possession of the demanded premises; and there was no evidence that the demandant had ever interfered during the whole of that period, until about the time of commencing this action ; nor that he ever, before the judgment for partition, had the actual occupancy, either as tenant in common or otherwise, of any part of the lands of which partition was prayed.</p> <p>The demandant, to rebut any presumption which might arise of any supposed waiver of bis claim under the judgment for partition, and to repel any suggestions of fraud in its procurement, then proved that the tenant and one Thomas Burnham were, with several other children, joint heirs of a certain farm, of which the demanded premises are a part, and being the same lands of which partition was prayed that the administratrix of Thomas Burnham, at public auction April 16,1792, sold the share of said Thomas to the demandant and executed a deed of the same to him, which was duly acknowledged and recorded, at which sale the tenant was present, and was a bidder; that it ■was this share which was afterwards set off to the demandant upon his petition for partition ; and that the tenant well knew all the facts respecting the partition, the commissioners having giv-vn him notice, met at, and proceeded from his house to discharge the duties of their commission.</p> <p>Upon this evidence the Judge directed the jury to consider the proceedings and judgment for partition proved in the case as sufficient to maintain the demandant’s right to recover; and they accordingly returned a verdict for the demandant; which was to be set aside if the evidence, offered by the demandant and objected to by the tenant, was improperly admitted, or if the dockets and entries referred to ought to have been admitted, or if the Judge’s instructions to the jury were erroneous.</p> <p>at the last term, took several exceptions to the evidence offered by the demandant.—1. The petition itself is uncertain, neither naming the co-tenants, nor alleging that they were unknown, nor describing the estate with sufficient certainty.—2. It does not appear how, or what notice was given. The Court, in this particular, perform a duty purely ministerial; and by the rules applicable to the acts of ministerial officers they should have stated specially the kind of notice and the manner in which it was given, that it might appear that the statute was complied with.-—3. There is no record of any judgment quod partilio fiat, and without such judgment the Court had no authority to appoint commissioners to make partition ; nor is there any final judgment quod partilio prmdicta, stabilis, &c.—4. It does not appear, in any part of the proceedings, that the commissioners were freeholders; and none but such were qualified, by the statute, to make partition.—The statute was enacted, not to introduce new principles, but to make partition more easy ;—to provide a remedy for the inconveniences of a tenancy in common with infants, or with persons unknown. It furnishes new facilities, by providing a mode of notice conclusive on all parties in interest; but it in no wise authorizes any departure from the spirit of the common law, the rules of which are applicable in all their force, as well to the remedy by petition as to that by writ. 5 Com. Dig. Parceners C. 9. Co. Lit. 168. b. 171, note. Stat. 8. & 9. W. 3. c. 31. 2 Vi. Bl. 1159. 5 Vin. Abr. suppt. 337. 338. Ramsdcli v. Creasey, 10 Mass. 170.</p> <p>He further adverted to the docket of the Court of Common Pleas for May term 1796 where the entry under the demand-ant’s petition was, “ demurred, defendant’s plea good and this he contended, must have carried the cause out of the power of that Court, else this evil arises, that it cannot be determined which parcel of the land was ordered to be partitioned.</p> <p>The docket is merely a private minute kept by the clerk, of an inferior grade of evidence, and utterly inadmissible to control the record of a judgment, which is the highest evidence, and against which no averment can be received. This solemnity has been accorded even to the judgments of foreign tribunals, so far as regards the facts found in them ; q fortiori it ought to be given to those of our own. Phillips’ Evid. 219. note. Cogs-well v. Burns, 9 Johns, 287.</p> <p>As to the objections taken to the judgment in partition as being apparent on the face of it, he denied that the duty of the Court in the matter of notice was purely ministerial. Notice was ordered to be given according to the directions of the law. Afterwards, it appearing that such notice had been given, commissioners were appointed. Here was a declaration that legal notice had been given, and this by the only tribunal competent to judge of its sufficiency, and one to which was specially committed the exposition and administration of the law. The objection of the want of a judgment quod partilio fiat is founded on the common law, where the interlocutory judgment is necessary only when there is an adverse appearance. If there is no such appearance to oppose the partition, it is taken pro confesso, and the special entry of such judgment is unnecessary. By the Stat. 1783. ch. 41. there was no provision made for any interlocutory judgment; and if there was an adverse appearance the proceedings were necessarily suspended. This inconvenience was remedied by the subsequent Slat. 1786. ch. 53. which provided that if any person was aggrieved by such judgment, he might appeal to the Supreme Judicial Court. But what possible benefit could result from a judgment, when no person appeared to demand it, to contest its regularity, or to appeal from it? Cook v. Alien, 2 Mass. 462. Simmons v. Kimball, 3 Mass. 299. In the case of Ramsdell v. Creasey, there had been notice ordered by the Court, which had never in fact come to the knowledge of the party contesting ; and the question was whether he should come in after the judgment quod partilio, Sue. which the Court admitted him to do, de bene esse, but not vacating the judgment for partition.</p> <p>But even admitting that this judgment is defective in form 5 yet such has been the form in use in this country very many years, under which many estates are held ; and if these defects are held incurable, very extensive mischiefs will ensue. Courts have often sanctioned proceedings in some respects defective, and growing out of the infancy of the country, where the consequence of repudiating them would be the extensive subversion of titles to real estates. And such was recently the case in this county in relation to the proceedings in the Courts of Probate where there had been no judgment of the probate of wills.</p> <p>Neither is the objection well founded that the commissioners do not appear to have been freeholders. They are so described in the commission, which is part of the record. Had they not been so described, the fact might be proved or disproved by-testimony ; but being so styled, it is conclusive.</p> <p>Nor does the statute require any final judgment quod stabilis, &c. It merely enacts that partition being so made, accepted by the Court, and recorded there, and in the Registry of deeds, it shall be sufficient. It substitutes certain proceedings, instead of the process and judgment at common law. Those proceedings being had, are conclusive on all parties and privies, and on all who could have come in while the process was pending.</p> <p>Both the statutes of Massachusetts on the subject of partition are made with reference to the existing state of the remedy at common law. And in this remedy a judgment quod partido, &c. and a final judgment were essential. The inconvenience of this mode of relief was felt where minors were co-tenants, or where some of the part owners were unknown. In England this evil was provided against by Chancery. But having no Courts of equity here, the legislature provided the remedy by petition, leaving it to be governed by the rules of the Courts of equity. It is an enabling statute, intended to extend the benefits of these tribunals to the case of partition of lands, but not to dispense with any known principles of law, much less to authorize partition without judgment of law. It obliges the Courts to render judgment as the law requires,” and admits the respondent to appeal from a judgment quod parlio fiat. Now what law could the legislature mean, but the common law? And why provide for an appeal from such judgment, unless it was necessarily incident to the course of proceeding by petition ?</p> <p>If, as is contended, the Court had power to judge of the sufficiency of the proceedings, it was necessary they should exercise that power. If their duty was not ministerial but judicial, then it is indispensable that there should be a judgment. The mere acceptance of the report is of no greater dignity than the acceptance of a bill of exchange.</p> <p>Nor is it to be presumed that the commissioners were freeholders. The legal presumptions in such cases are always against the party who lies by, as the demandant has done, and are always in favor of the party in possession. It is only to support the possession that Courts have gone thus far; the possession being the great indicium of ownership.</p>

Replevin for a pipe of brandy, and divers other goods. The defendant pleaded that the property of the goods was in one William Parker, traversing the property of the plaintiff, on which traverse issue was taken.

The appellee filed his petition in the Probate Court, for partition of the real estate of which his father died seized, and the Judge thereupon decreed that partition be made.

The plaintiff in review, who resided in Boston, and was defendant in the original suit, filed his petition for review in the Supreme Judicial Court there, at November term 1819, and notice was ordered upon the defendant in review to shew cause at the next term in the same county, which commenced on the first Tuesday of March 1820.

Assumpsit. The ad damnum in the plaintiffs’ writ was laid at more than seventy dollars; and the action was brought from the Common Pleas into this Court by appeal from a judgment rendered pro forma upon a fictitious demurrer, the plaintiffs being appellants.

Upon a writ of error to reverse the judgment of a Justice of the peace, rendered in an action of debt, brought by the plaintiff in error, who was clerk of a company of militia, against the defendant who was a soldier therein, to recover a fine for his neglect to appear at the annual inspection of arms, the case was thus:— The defendant was unfit to do military duty by reason of extreme deafness, and therefore did not attend at the inspection 5 nor did he offer any excuse for…