Volume 10 — Maine Reports

This was an action of assumpsit for the price of certain lottery tickets, as per account annexed to the writ, which was as follows, viz.: — 1826, Dec. 28, To tickets, $29, 00 “ 1827, Jan. 15, ” tickets, 29, 00 “ ” Feb. 13, ” tickets, 29, 00 Cr. $87, 00 “ 1827, March 27, By return tickets, $48, 48 “ 1828, Jan. By do. do. 12, 22 $60, 70 Balance due, The writ contained one count of indebitatus assumpsit referring to the account annexed, and another of quantum valebant for the…

This was a writ of entry, wherein the plaintiffs demanded a lot of land in Standish containing 100 acres. Plea, the general issue. On trial the demandants offered in evidence a deed of the demanded premises from John King to Simon Elliot, dated April 15, 1790, recorded April 5, 1791.

Case for the neglect of one Lambert, a deputy of the defendant, while he was Sheriff of the County of Lincoln. On the trial of this action before the Chief Justice, it appeared that Lambert had attached, at the plaintiff’s suit against George Houdlette, one eighth part of the brig Mary &/• Nancy, and placed the same in the possession of two receiptors, who in writing agreed to return the same to him on demand or pay him $300.

In this case the record of the Court of Sessions for this County being brought up on certiorari, it appeared that, on the 1st Tuesday of June, 1828, certain inhabitants of the town of Pownal petitioned said Court to lay out a road in said town.

Replevin for a brown mare. The defendant pleaded non cepit, and filed a brief statement, alleging that at the time of the supposed taking, he was a deputy sheriff, and had in bis hands for service, a writ against Daniel Pottle in favour of Alpheus Shaw, by virtue of which he attached said mare, the same being the property of said Pottle.

Tins was an action of assumpsit. The first count in the declaration was a general indebitatus assumpsit on account annexed, wherein the defendant was charged with the value of six cows.

<p>"Where, in the statute of 1821, ch. 59, sec. 8, the agent or attorney of a plaintiff, indorsing a writ, is made liable to a prevailing defendant for costs in case of the avoidance or inability of the plaintiff, — the plaintiff of record, is intended; though he may be a nominal one merely.</p> <p>In a suit brought in the name of A. B. for the benefit of C. D.; the writ was indorsed thus : u C. D. by his attorney, E. F.” On scire facias afterwards being brought by the original defendant against E. F. for the costs recovered in the original suit, it was held that he was not liable, not having acted as the agent or attorney of the plaintiff on record.</p>

Assumpsit, on a promissory note of hand for sixty dollars, dated Sept. 19, 1828, and payable to the plaintiff’s testator Richard Manning, or order, as agent for the heirs of Richard Manning, late of Salem, deceased, in one year and four months. The general issue was pleaded and joined.

This was an action of debt brought upon a Probate bond, and is the same case reported in 7 Greenl. 302.

This, was a Bill in Equity, brought for the redemption of an estate under mortgage. It was originally commenced in the Court of Common Pleas pursuant to the provisions of stat. of 1821, ch. 39, sec. 1, and was brought to this Court by appeal. Two questions were presented, 1. whether it was appealable, and, 2. whether the Report of the Master made in the Court below came up in the case, and could be used here. Greenleaf and W. Goodenow, contended that it was not appealable.

<p>This case is fully stated in the opinion of the Court, which was delivered by</p>

Assumpsit, on account annexed to the writ for goods sold and delivered. They were delivered to one Silas M. Weymouth ; and the plaintiffs contended, and stated in the opening of the cause to the jury, that they were delivered to Weymouth on the credit of the defendant’s intestate, and his promise to pay for them. This was denied by the defendant. The plaintiff then called Oliver II.

This was a bill in equity, in which the plaintiff alleged that on the 11th of October 1830, he contracted with Reuben Elder, now deceased, for the purchase of a certain lot of land lying in the towns of Windham and Westbrook, being one parcel, and not several, though accidentally intersected by the boundary line of those towns, said lot being the entire share of Reuben Rider in the real estate of John Rider, deceased, which had been set off according to the will of the…

This was an action of covenant broken, tried on the general issue and a brief statement in which the defendant alleged that he bad fully kept and performed all his covenants in the deed declared on.

<p>In this action, which was assumpsit to recover certain expenses incurred for the support of Rosanna Mayberry, it was admitted that she' had once a legal settlement in the town of Windham, and the only question in the cause was, whether she had since gained one in Standish by a residence there for more than live successive years. It was proved that she had resided in the latter town ever since Nov. 1324 ; but it was contended that during that time, or a part of it, she had directly or indirectly received supplies as a pauper from said town of Standish or from the town of Windham. On this point there was much evidence before the jury on both sides : and among the rest, it appeared that, in the fall of 1824, Rosanna Mayberry, then residing in Windham,, became chargeable as a pauper, and that the town of Windham paid to the son-in-law of said pauper, five dollars for her support. The sons of the said pauper, then residing in the town of Standish, being of sufficient abili» ty to maintain their mother, were then called on by the town of Windham to repay the amount thus expended for her, which they did; and also gave to Windham an obligation whereby they engaged to support the said Rosanna as long as they were able; and it appeared that she had continued to live in the family 'of one of the sons since she became a resident in Standish.</p> <p>All the evidence in the cause was submitted to the' jury for their consideration ; the Chief Justice, before whom the cause was tried, at the same time instructing them that, the aid of the sons in giving said writing, and of the town of Windham in receiving it, in connexion with the pauper’s residence in the family of one of said sons, did not, in legal contemplation, amount to the furnishing of supplies, directly, or indirectly, by the town of Windham to the pauper.</p> <p>The jury having returned a verdict in favour of the defendant town, the case was reserved for the opinion of the whole Court, on the correctness of the foregoing instructions. •</p> <p>The town of Windham by coercing the sons of the pauper to give a bond to maintain her, indirectly furnished her support, and therefore her continued residence in Standish for five years, could not operate to fix her settlement in that town. If one town can send its paupers into another town, and enable them to gain a residence as contended for by the defendants, it would seem to be a palpable perversion of the statute. In this case Rosanna Mayberry was sent to Standish as a pauper, and was supported there by her sons as a pauper, they being answerable over to the town of Windham. Watson v. Cambridge, 15 Mass. 286 ; East-Sudbury ®. Waltham, 13 Mass. 460.</p> <p>relied on the case of Wiscasset ®. Waldoborough, 3 Greenl. 388, as decisive of this.</p>

This action, which was assumpsit, was submitted for the opinion of the Court on the following agreed statement of facts. One Thomas Beck, by his will, which was duly proved in Probate Court in the year 1830, devised certain real estate in Portland, to his daughter, Mary Chadbourne, wife of James Chadbourne, in terms which of themselves it was admitted imported U fee. Mrs. Chadbourne had children born alive during the coverture.

The defendant as Warden of the 2d Ward in the City of Portland, was indicted for receiving at an election of Governor, Senators, and Representatives, the vote of one Daniel Merritt, when the name of the said Merritt was not borne on the list of voters for said Ward.

This was an action of entry upon disseizin, and was tried upon the general issue before Parris J. in this County, September terna, 1832.

<p>Whether a bond given to procure the liberties of the jail limits pursuant to the provisions of the fourth section of the act of 1822, ch. 209, approved by but one justice of the peace and of the quorum, be sufficient to justify the prison keeper in releasing the debtor — quaere.</p> <p>But the prison keeper would be justified in releasing the debtor on the giving of such bond, though it were defective, if accepted and approved by the creditor. Such approval may be express or implied; — or before or after, the discharge of the debtor.</p> <p>And where the creditor wrote to one of the obligors in the bond, who was a surety, as follows : u By the statute one year only is given to commence an i{ action [on the bond] and as that time has nearly expired, I write at this time “ to give an opportunity to settle the same if you think advisable— it was construed to be an acceptance of the bond.</p>

Scire facias, against the defendant as indorser of an original writ. The facts are succinctly and clearly stated in the opinion of the Court: the general question being, whether the death of Scotty G. Usher, the original plaintiff, during the pendency of his suit, “ and the insolvency of his estate, discharged the de- “ fendant from the contract created by his indorsement.” argued that it did not. The death of the plaintiff during the pendency of the suit does not abate it.

Trover for a mill-saw. The general property in the saw was admitted to be in the plaintiff, but the defendant justified the taking as an officer upon a writ of attachment against the plaintiff, who claimed to hold it exempt from attachment, on the ground of its being a “ tool necessary for his trade or occu- “ pation.” It was in evidence that the plaintiff’s principal business was that of sawing in a mill, in which he was a part owner, both for himself and for some of the…

This was a writ of error, brought to reverse a judgment of the C. C. Pleas against the present plaintiff, rendered on the report of a referee. The writ in the original action was sued out by the present plaintiff, in his capacity of administrator of the goods and estate of Humphrey W. Eaton. The defendant, Cole, filed his account against said intestate, in set-off, and the action was then referred.

<p>A. and B. levied on the life estate of the husband, the fee being in the wife. Before the expiration of a year from the levy, the husband and wife united in conveying the fee to A. and B. to a part of the land levied on, and A. and B. thereupon conveyed their interest in the residue, to C. D. the father of the husband : — Held, that, this did not operate as a discharge of the prior levy of A. and B., so as to let in, and perfect the title under a subsequent .levy on the same land.</p> <p>' Held also, that the conveyance to C. D. of the reversionary interest of the wife, though without consideration, was no fraud upon the creditors of the husband.</p>

This was a writ of error, brought to reverse the judgment of a justice of the peace rendered against the present plaintiff, in an action brought by the present defendant as clerk of a company of infantry, commanded by Oliver Adams, to recover a military fine.

Assumpsit, on the following promissory note, viz : “Boston, Nov. 25, 1831. “ For value received, I the subscriber of Saco, in the County “ of Yorlc and State of Maine, promise to pay James T. Jlo- “ hart or order, ten hundred and thirty-two dollars, fifty-one “cents, [on demand] with interest after four months.” —The words “ on demand” having three parallel lines drawn across them, but still remaining perfectly legible. The writ was dated, January 14, 1832.

This was a writ of entry, in which the demandants claimed the possession of a certain farm in Lebanon. It was admitted that Benjamin Lord, one of the defendants, owned the farm, on the 15 th day of July, 1828 ; at .which time he conveyed the same in mortgage to Messrs. Hayes and Cogswell.

<p>In assumpsit on account annexed to the writ, the defendant may prove payment, in money or goods, or services, of all or any part of the plaintiff’s account, thoug-h he may not have filed any account in set-off.</p> <p>Where a plaintiff produced in evidence his books of account in maintenance of his action, which was assumpsit on account annexed, it was held that the defendant was entitled to the benefit of any credits found therein to him, though not embraced in his account filed in off-set.</p>

This action while pending in the Court of Common Pleas was submitted to the Reporter as referee. In the award certain questions of law were left open for the decision of the Court, and upon such decision being had, the case was brought to this Court, by appeal. The parties here, agreed to the report as a true statement of the facts in the case, and submitted the questions raised therein to the decision of the Court.

This was a writ of entry wherein the plaintiffs demanded, in right of the wife, one undivided third part of a lot of land in Buxton. On the trial of this action before Parris J. it appeared that Eliza Ann Payne, one of the defendants, and formerly Eliza Ann Butterfield, was sole heir to Samuel Butter-field, who, it was admitted, was at the time of his decease sole owner in fee of the entire tract described in the plaintiffs’ writ.

This was an action of assumpsit, brought for the recovery of a sum of money expended by the plaintiffs for the support of Sally Turner, a pauper, whose settlement was alleged to be in the town'of Turner. The general issue was pleaded and joined.

<p>A sale and conveyance of Proprietary lands by a Collector of taxes, thereto authorised by a vote of the proprietors, passed March 23, 1780, was held to pass no title, —forty days not having elapsed between the giving of the authority and the execution of it, pursuant to the Provincial act of 26 Geo. 2. Jinc. Char.</p> <p>If one receive a deed of several distinct and separate lots of land from one having no title, — cause his deed to be recorded, — and enter upon and occupy a part of one only of the lots, under his deed, — it will not constitute a disseizin of the t/ue owner of the other lots, so as thereby to render his deed thereof to a stranger inoperative; though it be a mere release without covenants.</p> <p>Whether a tenant in common can he disseised by a stranger claiming his interest only,— queer e.</p>

This was a writ of entry, wherein was demanded three lots of land, Nos. 10, 11 and 12, in the town of Weld. The demandants counted upon the seizin of their ancestor, Samuel JRawson, and a disseizin done by the tenants.

This was a writ of entry brought by the demandants to recover seizin and possession of a tract of land of thirteen acres, lying in the town of Union, in which the demandants count upon their own seizin within twenty years and a disseizin by the defendant.

This was a complaint under stai. of 1821, ch. 45, for flowing the complainant’s land, and was tried before the Chief Justice, at the jDec. Term, 1832. The respondents pleaded the general issue and filed a brief statement.

<p>Assumpsit, on account annexed to the writ, for labour done and performed on the building erected for an Academy in Newcastle. It vras admitted that the work had been done, and that the sum charged was reasonable, but the defendant denied that he was liable to pay it.</p> <p>To maintain the action the plaintiff read the following memorandum : —■</p> <p>“ Newcastle, Aug. 15, 1829.</p> <p>“ §148,13.</p> <p>“ Due Nathainel Robinson for work on the new “ Academy building in Newcastle, one hundred and forty-eight “ dollars and thirteen cents.</p> <p>“ Ebenezer D. Robinson,</p> <p>“ Agent for the subscribers.”</p> <p>“ (Errors excepted).”</p> <p>It was also further proved or admitted, that at a meeting of the trustees of Lincoln Academy, May 1, 1828, a vote was passed, directing the removal of the Academy to Newcastle, whenever a building of a certain description should be there erected and presented to the Institution. Whereupon certain individuals, May 24, 1828, by writing .under seal, after reciting the above vote, covenanted “ to pay the sums voluntarily placed “ by them against their respective names', unto Ebenezer Farley, “ Esq. whom they had duly elected their Treasurer for this “purpose, and to any other person who may succeed said “ Farley in said capacity, one half in three, and the remainder “ in six months.” The defendant was one of said subscribers to the amount of $25. The whole sum subscribed was about $1500, which had been paid to said Farley, the treasurer. After said subscription, the subscribers met and organised by choosing a chairman and clerk, and a committee of three of the subscribers to direct as to the materials, form and manner of building, and to superintend generally the erection of the building. At the same meeting the defendant was chosen an agent to employ workmen, purchase materials, and generally carry on the work. Afterwards the defendant employed the plaintiff as master-carpenter to do the work charged in the account annexed. At several times during the progress of the building, the plaintiff drew orders on the defendant as agent of the subscribers, and on the completion of his work, received from the defendant the memorandum aforesaid.</p> <p>The defendant never gave*any notice to the plaintiff who were the subscribers, or how much was subscribed. But in Sept. 1831, before the commencement of this suit, the plaintiff called on the defendant with the memorandum aforesaid and requested payment, when he replied, that there were no funds to pay the same — that a sufficient sum had not been subscribed to pay for all the work done on the building. And on being further inquired of as to the names of the subscribers, he replied that he could not state who they were, as he had no control over the paper.</p> <p>Upon these facts it was agreed, that if in the opinion of the Court the action was maintainable against the defendant, the nonsuit which had been entered by consent, was to be taken off, and the defendant defaulted, otherwise the nonsuit was to stand.</p> <p>argued that the defendant was liable on the ground, 1. that he contracted with the defendant to do the labour, without disclosing at the time who was his principal, — and afterwards refusing to give the names of the subscribers when expressly inquired of to that effect. Maure v. IJejferman, 13 Johns. R. 58; Raihbon v. Rudlong, 15 Johns. R. 1.</p> <p>3. Because he transcended his authority, by incurring expenses beyond the amount of the funds —■ this makes him personally liable. Gill v. Brown, 12 Johns. R. 385 ; Pothier on Contracts, 1, 41; Comyn on Con. 1, 248; Sumner v. Williams, 8 Mass. 162; Abbot on Shipping, 100; Schimmelpennick v. Bayard &f al. 1 Peters, 264; Arpidsan v. Ladd, 12 Mass. 173.</p> <p>The memorandum may be a mere certificate or evidence of an insimul computassent. But if it be any thing more, it is the promise of the defendant, and the word agent is used merely as descriptio personae. Long v. Colburn, 11 Mass. 97; Damon v. Granby, 2 Pick. 345.</p> <p>If the defendant say that the action, should have been against all the subscribérs, the reply is, that it is too late for him to avail himself of that objection, he should have pleaded it in abatement.</p> <p>contended that, the defendant contracted as the agent of' the subscribers. He had no intention of charging himself, nor had the plaintiff, any intention at the time to charge him. The plaintiff well knew in what capacity the defendant was acting, as appears by the orders which he drew while he was performing the work. If the defendant was authorised to sign the memorandum produced by the plaintiff, then surely he is not answerable on it personally. If he was not authorised to sign it, then the action should have been a special action on the case and not assumpsit.</p> <p>To show that the defendant was not liable under the circumstances of this case, he cited the following authorities : Bainbridge v. Dffwning, 6 Mass. 253 ; Mann v. Chandler, 9 Mas.s. 335 ; Tippets v. Walker, 4 Mass. 595 ; Emerson v. Providence Hat Manufactory, 12 Mass. 237 ; Odióme v. Maxcy, 13 Mass. 178 ; Williams v. Mitchell, 17 Mass. 98.</p>

This was an action of assumpsit, founded on two promissory notes signed by Hatch, the original defendant, payable to tone Clarjc, or order, and by him indorsed. In the Court of Common Pleas it was agreed by Hatch, and entered on record, that one trial should be final on his part. A verdict was returned, and judgment entered thereon, in favour of Hatch.

This was an action of assumpsit to recover the price of a vessel, and was founded on the following special agreement between the parties. “We agree to sell the schooner Honor &f Amy, to Capt. Jon- “ athan Norton of the town of St. George, in the State of “ Maine, for one thousand and thirty dollars, to receive her as “ she now lies at the wharf in Gloucester, and to pay for her “ in the following manner: to give us his notes of hand for “ $530, payable in six months from the…

Entry sur disseizin. The premises demanded was the southerly half of lot No. 10, in Lisbon. Plea, the general issue. On trial, the general title was admitted to have been in the demandants. The defendant’s counsel then read the following deeds, viz.: John Dain to John Dain, Jr. conveying the demanded premises, dated May 5, 3816, and recorded May 9, 1829; and John Dain, Jr. to- the defendant, dated March 4, 1822, and recorded Sept. 15, 1830.

Assumpsit, on a promissory note of hand. The defendant pleaded in abatement that the summons mentioned in the return of the officer was in hcec verba, setting it out; by which it appeared that the defendant was summoned to answer to William J. Farley, and not to the plaintiffs, — and averred that the officer neither gave the defendant -in hand, or left at his usual place of abode, any other or different summons in said action, than the one set forth.

This was an action of debt, commenced in the Court of Common Pleas, on a recognizance entered into before a justice of the peace for the prosecution of an appeal, payment of costs, &c. The plaintiff stated in his declaration that, though judgment in said suit had been rendered in his favour by the Court of Common Pleas for costs, &c., yet that the defendant had never paid the same.

This was an action of assumpsit for money had and received, and came to this Court on exceptions filed to the opinion of Whitman C. J. in the Court of Common Pleas.

Trespass, cjuare clausum fregit. The plaintiff derived title to the locus in quo from William Sullivan, by deed dated Feb. 5, 1822 ; and the principal question in the case was, whether at said time, Sullivan was so seised, as to be legally capable of conveying a good title.

<p>H. instituted process against W. and F. in the Superior Court of ■ Georgia, founded on an alleged joint contract. F. not being within reach of process, no service was made upon him. W. appeared, pleaded the general issue, which was joined, and a verdict was thereupon rendered in favour of H. and judgment entered up against W. and F. both. Afterward, the same Court on motion of H. and after notice to the attorney of W. who had been employed in the defence of the action, (W. himself having left the State some years before, and not having returned,) permitted an amendment of the record, by striking out the name of F. and entering up judgment against W. alone. In a suit against W. founded on the amended judgment, it was held :</p> <p>That, the original judgment was erroneously entered up against F. and could have no binding efficacy in the Courts of this State. As amended, this Court was bound by the Constitution and laws of the U. States, to give “ full faith and credit” to the record.</p> <p>That, where the error in making up a judgment, is in the Court, it cannot be amended at a subsequent term on motion; — aliter where the mistake is that of the Clerk.</p> <p>That, the absence of the defendant from the State, could not limit the authority of the Court with regard to the amendment. After their jurisdiction over the cause had once attached, they could not be ousted of it, by the change of domicil of one of the parties.</p> <p>That, notice to the attorney of the defendant, before granting the amendment, was not indispensable ; but was a matter entirely within the discretion of the Court.</p>

This was a writ of entry, in which the demandants counted upon their own seizin, and upon a disseizin by the tenant. The general issue was pleaded and joined. The defendant admitted that he was in possession of the demanded premises, and claimed to occupy them in virtue of an agreement made between the plaintiffs and Abraham Roundy, Jr., and an assignment of the same by the latter, to the tenant.

This was assum/psii, on a note of hand, given by the defendant to the plaintiff for $653 43, dated July 1, 1828, payable in nine months without interest. Held: and took four other notes, each signed by Houdlette and Lilly, payable on demand, to the persons to whom the lumber sold to Houdlette originally belonged. One of these was taken to the plaintiff for $250 or $260 — one to the defendant himself for about the same amount, and one to Joseph Southwick.

This was a petition for partition of certain lands, in which the petitioner claimed one half. The plea of the respondent was sole seizin in himself. Both parties claimed under one Levi B. Erskine, who on the 9th of February, 1810, conveyed one undivided half of the premises to Josiah Stebbins.

<p>Trover for a horse. Plea, the general issue. The plaintiffs to prove their property in the horse, produced a mortgage bill of sale from one Aaron Plummer, of the stock upon a farm, including the horse in question, made to secure the payment of a debt which it was admitted was justly due, and as security for further advances. The bill of sale was dated December 7, 1827. On the 11th of the same December, one of the plaintiffs went to Plummer and received a formal delivery of the stock mentioned in the bill of sale, and marked the horns of some of the cattle with the initials of his name. The stock remained in Plummer’s possession and use as before the sale, and it was not known to any of his neighbours that there had been any change of the property, until April, 1828, when what remained was taken possession of by the plaintiffs.</p> <p>In January, 1828, Plummer sold the horse to the defendant, as his property, bona fide, for a full consideration, and without notice of the plaintiffs’ claim.</p> <p>If upon these facts the Court should be of opinion that the plaintiffs were entitled to recover, judgment was to be entered on the default for an agreed sum ; otherwise, the default was to be stricken off and a nonsuit entered.</p> <p>admitted that sales like this have been held good against attaching creditors. But this case presents a different question. It is, which one of two honest purchasers shall suffer. Contend, that the plaintiffs by permitting their vendor to hold, use, and in all respects treat the property as his own, have thereby enabled him to do wrong — to work an injury. — Who shall suffer for that wrong ? An innocent person, or he who has furnished the agent with the means of working the injury ? The latter. Powell on Mort. 37, 38; Young v. Austin &r al. 6 Pick. 2S0.</p> <p>In the cases decided in this Court and in Massachusetts, protecting sales where the possession remained in the vendor, the sales were attempted to bo avoided by prior creditors, not by those who had been induced to give the credit in consequence of such possession.</p> <p>Where one has parted with his property through a fraud practiced upon him, he may reclaim it from the fraudulent purchaser, and from his prior creditors, but not from a subsequent bona fide purchaser. Applying this principle here, why should not the defendant, who is a subsequent bona fide purchaser, be protected in his .purchase ? Nee Buffington v. Gerrish, 15 Mass. 156 ; Seaver v. Bingley, 4 Greenl. 306; Gilbert v. Hudson, 4 Greenl. 345.</p> <p>Possession in the vendee should follow the sale. The public should have some notice of a change of property. In case of a mortgage of real estate, the possession of the mortgagor is consistent, because his possession is secured by law — and the public cannot be injured because the mortgage is to be recorded. The possession of real estate affords but a slight indication of ownership, and therefore the law requires that there should be a record of the deed, or notice, actual or implied, to one claiming to hold as purchaser, notwithstanding the mortgage. Hussey &f al. v. Thornton, 4 Mass. 405; Smith v. Dennie, 6 Pick. 262.</p> <p>In England, if the mortgagee permit the mortgagor to retain the possession of the title deeds, and the mortgagor obtain further advances upon the land, the first mortgage shall be postponed. Pow. on. Mort. 59 — 62.</p> <p>In case of mortgage of a ship at sea — it is held to be good, provided possession be taken as soon as the ship returns. Portland Bank v. Stubbs &f al. 6 Mass. 422; Badlam v. Tucker al. 1 Pick. 389.</p> <p>Where there have been two sales, both bona fide, he shall be protected in his purchase who first obtains possession. Lamb v. Durant, 12 Mass. 52; Lanfear v. Sumner, 17 Mass. 110.</p> <p>These principles applied to the present case, will go to sustain the purchase and title of the defendant;</p> <p>cited Brinley &/■ al. v. Spring, 7 Greenl. 241; Marshall v. Fisk, 6 Mass. 24; Ricker v. Ham al. 14 Mass. 137 ; Lanfear v. Sumner, 17 Mass. 110.</p>

Assumpsit on a promissory note of hand for $72, 36, given by the defendant to the plaintiff in payment of two smaller notes which had been standing some years, and for a small sum of money lent. It appeared that in ascertaining the amount for which the new note should be given, the sum due on the old notes was computed upon the principles of compound interest. This the defendant insisted was usurious, and the right of the plaintiff to recover was resisted upon that ground.

This was an action of assumpsit to recover damages for the breach of an agreement made, as alleged, by the defendants with the plaintiff… Held: March 15, 1830. In the warrant calling said meeting, the 7th article was in the following words, viz.: “ To “ grant such sum or sums of money as shall be thought neces- “ sary for the maintenance of the poor, and other necessary “ town charges the present year.” Article 9th was, “ To see “ what measures the town will take to provide…

Trespass, quarc clausum fregit. The close described in the plaintiff’s writ, was about two acres of land, situated in Water-mile, with a house and barn thereon. The defendant pleaded soil and freehold in himself. To maintain the issue on his part the defendant shew title in one Smith, a conveyance from him to one Lloyd, and from Lloyd to himself; the last, dated March 1, 1828. The plaintiff relied upon a deed from the defendant to himself, dated April 15, 1828.

This was an action of debt on bond, with condition as prescribed by the act for the relief of poor debtors. The breach relied on by the plaintiff was, that the debtor did not surrender himself according to the condition of the bond. The defendants produced a certificate of two justices of the quorum that they had administered the poor debtor’s oath to the execution debtor. Also a written acknowledgment of notice, signed by John Otis, Esq, attorney to the plaintiff.

This was an action of trespass quare clausum fregit, for cutting down and carrying away trees from the range-way in the rear of front lot, No. 47, in the town of Sidney, according to Winslow’s plan. The general issue was pleaded and joined.

In this action, which was trover, for a yoke of oxen, it was admitted, that the oxen originally belonged to the plaintiff, and that the defendant had converted them to his own use. To prove property in himself, the defendant produced a bill of sale from the plaintiff, of the same oxen, dated May 12, 1829. He also produced a note of hand of the same date, from the plaintiff to him, for $50, which he offered to give up to the plaintiff.

In this action, which was assumpsit to recover for supplies furnished a pauper, the following facts were agreed by the parties. Moses Welch and family, the paupers described in the plaintiffs’ writ, fell into distress in the town of Leeds, in Dec. 1831, and were supplied with necessaries to the amount of $37,87.

<p>Assumpsit, to recover the amount alleged to be due for the services of Jeremiah Spaulding, the plaintiff’s minor son, while in the defendant’s employ. The defendant pleaded in abatement the non-joinder of one Amaziah Jones, who he alleged was a co-partner, and that the promise if any was made, was made by him and said Jones jointly, and that he was still alive and within the jurisdiction of the Court. The plaintiff in his replication denied the co-partnership, and alleged that the promise was made by the defendant alone, and, upon this, issue was joined.</p> <p>The defendant to maintain the issue on his part, offered the deposition of the said Jones, in which he deposed, that he was a co-partner with the plaintiff, — that Spaulding was hired on their joint account, —that he so understood it, and received a portion of his wages from the deponent.</p> <p>To the admission of this deposition, the plaintiff’s counsel objected, on the ground of the deponent’s interest in the suit. The Chief Justice of the Court of Common Pleas where the cause was tried, ruled that it was inadmissible, and a verdict was thereupon rendered for the plaintiff. The cause was brought to this Court on exceptions taken by the defendant to the ruling of the Judge aforesaid.</p> <p>argued that the witness was not interested in the event of this suit. It was a matter of perfect indifference to him which prevailed. • If the defence succeed, then he will be answerable to the plaintiff for his proportion of the debt. If the plaintiff recover, then the witness will be answerable to the defendant for contribution. When the interest of a witness is balanced, his testimony is admissible. _ York If al. v. Bluff, 5 M. &f S. 71; Lockhart v. Graham, 1 Str. R. 35; Hudson v. Robinson, 4 M. &f S. 475.</p> <p>He denied that the defendant would be liable to pay any part of the cost. Such have been the decisions in case of co-sureties. Leavenworth v Pope, 6 Pick. 419; Dawson v. Morgan, 9 B. Sf C. 618.</p> <p>But even if liable to pay a part of the cost he is still admissible as a witness. Merton v. Atkinson, 1 D. fy E. 476 ; Burt v. Kurshaw, 2 East, 458.</p> <p>cited the following authorities ; 2 Starkie’s Ev. 5 ; 3 Starkie’s Ev. 1084; Young v. Baimer, 1 Esp. Rep. 203; Goodacre v. Breame, Peake’s Cases, 175 ; 1 Phillips, 48; Hubbs v. Brown &f al. 16 Johns. Rep. 70; Scott v. McLellan &/■ al. 2 Greenl. 199; Anderson Sf al. v. Brock, 3 Greenl. 243 ; Whitney v. Cook, 5 Mass. 139.</p>

This was an action of debt on an administration bond, given by the defendant as administrator of the goods and estate of David Young. The bond was in the form prescribed by law. The defendant pleaded the general issue, with a brief statement alleging a general performance of the condition.

This was an action of trespass for taking and carrying away a quantity of pine mill logs. It was proved that they were cut by the plaintiff in the winter of 1828-9, on a township of land then owned by John P. Boyd, which he purchased in July, 1828, of the State, in pursuance of information derived from the plaintiff, who had spent considerable time, and incurred some expense in exploring it.

This action, which was brought to recover the demandant’s dower in certain real estate in Hallowell, was submitted upon the following agreed statement of facts; or such of them as the Court should be of opinion were legally admissible. The demandant was married to Jonathan Hains, Sept. 19, 1808, and remained his wife till he died, which was May 4, 1829.

<p>In the deed conveying a lot of land, the grantor made the following reservation: “ Jlnd the said £. hereby reserves to himself the right of passing and repassing “ with teams in the most convenient place, across the land conveyedHeld that, the term “ across” did not necessarily confine the right of a way to a transverse one, over the lot.</p> <p>But, where the grantor’s lot was nearly in the form of a parallelogram, and the grant was of one half, dividing it longitudinally; and it appeared that the rear end of the grantor’s land not conveyed, occupied as a mowing field, was separated from the front where the grantor’s buildings were, by an impassable barrier; the reservation was construed as retaining to the grantor the right of passing in the most convenient route, from said field to his buildings, though in so doing it was necessary to pass over the lot both transversely and lengthwise.</p>

This action, which was debt on a replevin bond was, submitted for the decision of the Court, upon the following agreed statement of facts. The plaintiff as a deputy-sheriff, having in his hands a writ against Moses B. Gilman, in favour of one Clancey, attached certain personal property including a horse, estimated to be worth $60. In July, 1828, the defendant replevied the property attached, and gave the bond declared on.

Debt on a bond given by the defendants to procure the liberties of the prison limits. The facts in the case were agreed, and in substance were as follows: was legally committed to the jail in Wiscasset, May 25,1830, on an execution in favour of the plaintiff, and on the same day, gave bond in the usual form, to procure his release from close imprisonment, which bond, forms the basis of the present action.

This was an action of assumpsit, brought to recover for supplies furnished a pauper, and was submitted for the decision of the Court, upon the following agreed statement of facts. Laura Ann Josselyn, the pauper, was the illegitimate daughter of Temperance Swift, and was born in the town of Leeds in the year 1811 ; said Temperance Swift at that time having her legal settlement in that town.

Assumpsit on the following note or contract in writing. “Dennysville, Sept. 11, 1830. “ For value received of William Baldwin, we, the subscribers, “ jointly and severally promise to pay him or order forty-four “ dollars in one year from date and interest, payment to be de- “ manded at their dwellinghouses in Dennysville. “ The conditions of this note are these, that if the said “ Baldwin shall within the space of four weeks from date, deliv- “ er, or cause to be delivered…

This was an action of trespass quare clausum fregit. The locus in quo was alleged and described to be, lot No. 87, on the plan of the north half of the town of Solon. The cutting alleged by the plaintiff and admitted by the defendant, was on the southerly half of said lot.

Assumpsit on a note of hand made by the defendant to the plaintiff for $45, payable in grain. It had been duly assigned to Warren Prescott, and this action was brought for his benefit.

Error, brought to reverse the judgment of a justice of the peace rendered in an action of debt brought to recover a penalty alleged to have been incurred for neglect of military duty.

<p>A. being a deputy-sheriff and also a constable, received a writ for service, directed to the sheriff and his deputies alone. Notwithstanding which, he served and returned the writ as constable. The plaintiff’s counsel, without noticing the return, entered the action, obtained judgment on default, and delivered the execution which issued thereon to the same officer, which was afterward returned by him in no part satisfied. Held, that the Sheriff was liable, in case, for the neglect of the deputy inMot serving the writ. The entry of the action and pursuing it to judgment, under the circumstances, being no waiver of the plaintiff’s claim against the Sheriff for the neglect of the deputy to serve the writ.</p>

This was an action of trover for a saw mill, mill-chain and dogs. On trial it appeared, that the land and privilege upon which the mill was built, at the time of the erection, in 1824 or 1825, belonged to William Vance. That Shubael B. Vance and Asa Church, had bargained by parol with the said William Vance, for the purchase of the privilege, and had caused the mill to be built thereon, through the agency of one Seth Emerson, by the permission of the said William Vance.

This was assumpsit for money had and received, and came up to this Court on exceptions taken to the opinion of the presiding Judge in the Court .of Common Pleas.

<p>One duly licensed as a common victualler under the 2d. section of ch. 133 of the statutes, and selling spiritous liquors in small quantities to those whom he victualled and others, to be drank in his cellar, and not permitting them “ to drink to drunkenness or excess,” was held, not thereby to have violated the provisions of the 1st section, which impose a penalty for any person’s presuming to be a “common seller of wine, brandy, rum and other strong liquors, “ without being duly licensed.”</p>

<p>Where by statute, “ the Selectmen, Town Clerk a,nd Treasurer of a town for “ the time being” “ are constituted and declared to be a body corporate and “ Trustees of the, Ministerial and. School fund” in. such town forever, with power “ to prosecute and defend suits at lawit was held, that a suit was rightly brought in the corporate name of u Trustees of the Ministerial and School “fund in the town of L.” — and that it was not necessary that the names and •official characters of those individuals should be particularly set forth in the writ.</p> <p>A note of hand made payable to G-. W. as treasurer of a corporation, was held, to he rightly sued in the name of such corporation.</p> <p>Whether an action could have been maintained thereon in the name of G. W- ■— quwre.</p>

<p>This was an action of trespass quare clausum fregit. Plea, the general issue, which was joined.</p> <p>The injury proved, was the location of a State road for about two hundred rods through the plaintiff’s grounds, his title to which was admitted.</p> <p>The defendant justified under two resolves of the Legislature of Maine, one passed March 12, 1830 — the other, March 28, 1831, which directed the location of the road in question, but made no provision for compensation to the owners of the land through which the road was to pass.</p> <p>It was admitted, that the defendant was duly appointed Agent of the State under said resolves. And it appeared that the road was located and made under his authority.</p> <p>Weston J. intending to reserve the question of justification arising from this authority, and with a view to have the jury determine the amount of damages, ruled that the justification was not made out.</p> <p>The jury returned a verdict for the plaintiff, on which judgment was to be entered, or the verdict set aside and a new trial granted, as the opinion of the whole Court should be upon the ruling aforesaid.</p> <p>contended that, there was no necessity for directing a remuneration to the citizen in the act by which his property is directed to be [taken for public uses, because it is already secured to him by the constitution. If, therefore, redress had been provided in the law authorizing the laying out of the road, it would have given the defendant no greater right than he then already enjoyed.</p> <p>The mode of seeking redress is by petition; — this results from the nature of the case, and the parties. It is such a redress as all who have claims against the State are obliged to resort to, not having the power to sue.</p> <p>Suppose the act had provided a remedy or compensation, what could it have been ? Must the surveyor go with the money in his hands when he takes the land ? Must the acts be simultaneous ?</p> <p>In the case of private corporations it may be and is provided, that the citizen whose property may be taken shall have a right of action against the corporation. It is not required that, the money or measure of redress should be advanced. Now shall the same rights be denied to the State which are granted to private corporations ? Shall it be assumed that the State would be unwilling to do what was just and right ? And assumed as a legal ground of action ?</p> <p>There are no decisions that say the indemnity should precede, or even accompany the act of taking — Nut simply that there shall be an indemnity.</p> <p>The defendant being duly authorized by the State — and the act being lawful in itself — this action cannot be maintained.</p> <p>maintained the unconstitutionality of the resolve.</p> <p>1. Because no measures preceded the taking of the defendant’s property, to show that “ the public exigencies required it.” Const, of Maine, art. 1. sec. 21.</p> <p>2. Because the laying out of this road was a judicial act — therefore not competent for the legislature to do it. Const, of Maine, art. 3 ; Lewis v. Webb, 3 Greenl. 326.</p> <p>3. Because it directed the taking of private property without making “just compensation.” 21st art. of Const.</p>

This was trover, for a note of hand given by one Daniel Forhes to Thomas J. Forbes, for $535, 98, and was submitted for the opinion of the Court upon the following agreed statement of facts.

This was assumpsit on a promissory note of hand, payment of which was resisted by the defendant, on the ground that it had been submitted to arbitration by the parties, and an award thereupon made in favour of the defendant.

<p>Partnership debts must be paid out of the partnership funds, before creditors of the individual members of the company can be permitted to appropriate any part of those funds in payment of their demands.</p> <p>The fact of issue being joined in an action pending, will not per se prevent the defendant’s being summoned as the trustee of the plaintiff in a process of foreign attachment. He should, however, have an opportunity in the first suit of availing himself of the commencement and pendency of the trustee- suit.</p>

This was an action of debt on a jail bond. Plea, non est factum, with a brief statement. The bond declared oh, was produced in evidence from the custody of Fislce> one of the defendants, with a discharge written upon the back of it, and with the names of the signers erased. testified, though objected to as incompetent, that when the bond went from his hands, there was no erasure of signatures, or mutilation of seals.

“ This was a scire facias on a recognizance entered into by “ the defendant as one of the sureties of Henry G. Badger « before two justices of the peace and the quorum, in virtue “ of the act of 1821, ch. 68 ; the said Badger then being in « prison on a charge of larceny, for not finding sureties for his « appearance at the Court of Common Pleas for the county of “ Penobscot, on the first Tuesday of October, 1831.” The mittimus on which Badger was committed, in reciting the…

This was assumpsit, brought to recover the amount of an assessment on a share in the Bangor Bridge Company, alleged to belong to the defendant.