Volume 11 — Maine Reports

This was a bill in equity; an abstract of which was as follows, viz. The complainant alleged, that on the 20th of Decemr bery 1823, one… Held: the property exclusively for the benefit or interest of Brewer. —'That, he knew nothing of the' plaintiffs claim, at or before the time of his conveyance to Pike. —That, he told Pike at the time of the conveyance, that his title was good, and that he would hold through or under the deed from Munroe. — That, he passed over to Pike, at…

This was an action of replevin for a horse. On trial before x Weston Justice, it appeared that the horse was originally the property of the plaintiff. That the defendant bought him of one McAllister, he of one Scott, and Scott of one Staples, to whom the horse had been delivered by the plaintiff for use for a limited period and under the expectation of a purchase by Staples.

Error, brought to reverse the judgment in an action of debt originally brought before a Justice of the Peace to recover a military fine. It appeared by the facts as certified by tlie Justice, that Potter, the Clerk, had not received bis appointment from tbo person who was Captain or commanding officer of the company at the time the fine was incurred and action brought, but from his predecessor in said office.

This was a writ of review brought to reverse a judgment rendered in the Court of Common Pleas, March term, 1826, for $532 debt, and $32,65 costs, in favor of Isaac Darling, the present defendant, against John C. Todd, the plaintiff’s intestate. The original writ contained counts on four promissory notes for $200 each, dated May 13, 1820, and payable by said Todd to said Darling, and not negotiable.

Trespass, de bonis asportaiis. Plea, the general issue, with a brief statement. The plaintiff claimed title to the goods in question under a certain deed of assignment made and executed on the 18th of ,May, 1832, by one Cornelius W. Austin. Beside said Austin, and Todd the assignee, it was also executed by Gardner, Waite, and Heyivood, three of the creditors of said Austin. Todd, Waite, and Heywood resided in St. Stephens in the Province of New Brunswick.

In this action, which was replevin, the defendant pleaded to the merits in the Court below, and from the judgment thereon rendered, an appeal was taken to this Court. The only question in the case was, whether a motion to quash the process because of the insufficiency of the replevin bond, would now be sustained, which was submitted on the statement of the parties, by

<p>Where the administrator of an insolvent estate, neglects to exhibit and settle an account of his administration in the Probate office for the term of six months after the report of the commissioners of insolvency has been returned and accepted, a creditor may maintain his action against the administrator in the same manner as if said estate had not been represented insolvent; by virtue of the provisions of stat. of 1821, ch. 51, sec. 28.</p> <p>But this provision is not exclusive of any other remedy — the creditor may, if he prefer it, maintain an action on the administration bond in the name of the Judge of Probate for the official negligence of the administrator; — in which, judgment will be rendered for the penalty of the bond, — and execution will issue for the amount of debt and costs.</p> <p>Such neglect of the administrator was further held, to dispense with the necessity of a demand upon him before suit.</p>

In this action the plaintiff declared in general indebitatus as-sumpsit for money had and received, work and labor performed, find money paid, laid out and expended. The several counts were for the same cause of action, viz. the building of a vessel for the defendant.

<p>Assumpsit, by one part owner of a vessel against the other to recover a sum expended by the former in the building, beyond his proportion. The joint business of the parties relating to said vessel had been closed prior to the bringing of the action; but there had been no liquidation of their accounts, nor balance ascertained, nor any express promise by the defendant to pay such balance as might be found against him. And for failure of proof in these particulars, the counsel for the defendant insisted the action was not maintained. But Weston J. who tried the cause ruled otherwise, and the jury returned their verdict for the plaintiff — which was to be set aside or judgment rendered thereon, as the opinion of the whole Court should be upon the questions reserved.</p> <p>insisted that no action would lie by one partner against another, before any liquidation of their accounts, or demand made, or express promise to pay, and cited the following authorities. 2 Starkie’s Ed. 124; Casey and al. v. Bush, 2 Caine’s R. 293; Beach v. Hotchkiss, 2 Conn. R. 425; ibid, 697; Com. Dig. tit. Merchant D. 169; Gow on Partnership, 99; Chandler v. Chandler, 4 Pick. 78; Has-kell v. Adams, 7 Pick. 60.</p> <p>cited Brigham v. Eveleth, 9 Mass. 538; Jones v. Harridan, 9 Mass. 540, in note; Bond v. Hayes, 12 Mass. 30 ; Willéy v. Phinney, 15 Mass. 116; Fanning v. Chadwick, 3 Pick. 420; Gardiner Factory Co. v. Heald, 5 Greenl. 381.</p>

Debt on an arbitration bond, the condition of which was in the following words, viz: “ The condition of this obligation is such that if the above bounden Joseph Whitney shall well and truly stand to, abide, perform, fee. the award and determination of J. A. — 'J. M. — 'and D. L. or any two of them, arbitrators indifferently chosen as well on the part and behalf of the above bounden Joseph Whitney as of the above named Mary Bixby, to arbitrate, award, &c. of and concerning…

In this action, which was debt on a replevin bond, the parties agreed on the following statement of facts. Hoyt, the present defendant, sued out his writ of replevin against Pettygrove, for a schooner boat, the value of which, as stated in the writ and bond, was ^175. The writ was duly served on the execution of the bond now put in suit, which was in the form prescribed by statute ; and the boat was thereupon delivered to Hoyt.

This was trespass quare clausum fregit. Plea the general issue. The plaintiffs to show title in the close described in the writ, read a deed of mortgage of the same, from the defendant to .Stephen Jones, the plaintiff’s wife’s father, whose sole heir she is, dated Sept. 8, 1812.

<p>A being engaged in transporting timber in his schooner from Georgetown to New York, in which business it was contemplated by both A and B that said vessel should continue, the former contracted with the latter, to carry freight for him in the cabin from Georgetown to New York, during the season ensuing, in payment for a quantity of rice sold him. Within the time, A offered upon two or three occasions to take freight, but B did not furnish it. Afterward, but within the time, B requested A to go with his vessel about two and a half miles up Georgetown river to Kinloch's mills, the place where rice was usually received, there to take a cabin freight; but the vessel being then deeply laden with timber, and it not being safe and proper, (as the jury found) to attempt going to the place designated with so large a vessel, laden, A declined going. Held, that these facts did not show a breach of the contract by A, construing the contract by the circumstances under which it was made.</p> <p>Held also, that it was incumbent on A to do the first act; that is, to have the vessel at Georgetown, ready to receive the stipulated freight, occasionally, as the well known course of his business would allow; — and that the deposit of rice by B at Kinloch's mills was not a condition precedent.</p> <p>Whether the option as to the time when the contract should be performed was with A or B — queere.</p>

Tit over for a note of hand signed by one Charles S. Page, and payable to the plaintiff, for $33,35, dated Nov. 11, 1826. The plaintiff gave in evidence a receipt of the following tenor :• “Received of Randall Freeman a note of $33,35 to collect or to be returned against Charles S. Page, of Campobello. The above note given Nov. 14, 1826. Nathaniel Swett.

Assumpsit upon an account annexed to the writ, and two notes of hand payable in lumber. The writ was dated Dec. 26, 1831. The first note was dated Oct. 28, 1819, and was payable in June, 1820; upon which were two indorsements, one purporting to have been made March 18, 1825, and another June 20, 1827. The other note was dated Oct. 14, 1823, payable in six months, on which was also an indorsement, Oct. 28, 1826. The defendant pleaded the statute of limitations.

In this action, which was debt on judgment, the following facts, in substance, were agreed in a case stated for the opinion of the Court. At the Court of Common Pleas held at Boston, July, 1829, Adams, the present plaintiff, recovered judgment against one Henry J. Benson, as principal, and against his goods, effects and credits, in the hands of Rowe, the present defendant, as his trustee, Rowe at that time residing in Boston, and the service of the writ on him being personal.

<p>One who had been appointed by the S. J. Court to sell real estate here, of a minor, resident in another State, on the petition of the guardian residing in the same State, and receiving his appointment there, is bound to pay over to such guardian the proceeds of said sale.</p> <p>And where such person had placed the proceeds at interest, taking a note running to himself, which he refused to deliver over to the guardian or to pay the amount of it, though he had been cited into Probate Court for the purpose, it was held, that his bond was thereby forfeited, and that the guardian might institute a suit thereon, in the name of the Judge of Probate.</p> <p>And this, notwithstanding there was no formal decree made by the Judge of Probate under the citation.</p>

This was an action of trespass guare clausum fregii, and was submitted to the Court on the following agreed statement of facts. Held: the 2d article in the warrant calling it, being, “ to see if the town would approve and allow said way, called Church street,” the same being sufficiently described. At this meeting the following proceedings were, had, relative to this road, as exhibited on the town records. (!

This was a qui tam action of debt, brought to recover the penalty given in the statute of 1821, ch. 22, sec. 2.

Assumpsit on the following note, or memorandum in writing: “ 1817, May 5th. This day settled all accounts with Samuel Brackett and find due to him sixty-five dollars and eighty-five cents, on interest till paid. Richard Mountfort.

<p>The town of Mew Gloucester, holding lands by grant from the Commonwealth of Massachusetts, prior to the separation of Maine therefrom, for the use of schools ' in that town, deemed, it advisable to have the lands sold; and on application of the town, an act was passed by the Legislature, incorporating certain persons, by the name of “ The Trustees of New Gloucester Schools in the County'of Cumberland” — authorising the sale, by them, of said lands — the putting of the proceeds at use — appropriating the interest annually to the support of said schools — empowering them to fill vacancies in their own board — and containing various other provisions. Held, that this constituted a contract within the meaning of the constitution of the United States and of this State ; and that a subsequent act of the legislature of this State, author-ising the town to choose a new set of Trustees, and directing the first Trustees to deliver» over the trust property was unconstitutional and void.</p>

Assumpsit against Seward Merrill and Charles Merrill on a promissory note. Plea, the general issue. The note produced on trial, was signed S. &f C. Merrill fy Co. and it was admitted, that the firm was composed of the two Merrills and Andrew Scott. The defendant thereupon moved a nonsuit, the evidence not supporting the declaration. And the plaintiff moved for leave to amend his writ, so that it should correspond with the note.

This was an action of the case against the defendant as a Coroner, for neglecting to take and sell on an execution in favor of the plaintiff, against one Edward March, sundry goods and chattels which had been attached by the said Stevens on the original writ. The general issue was pleaded accompanied by a brief statement.

This was an action of trespass, for taking and carrying away and converting to the defendant’s use, certain goods and chattels, the property of tbe plaintiff. The general issue was pleaded and joined; and the defendants also filed a brief statement alleging that they were the assessors of the First Parish in Gorham, and that all the acts by them done were done in that capacity.

<p>This was an action of trover for five tons of bay, four barrels of wheat in tbe chaff, twenty loads of manure, and a lot of plank and boards, and was tried upon the general issue, before Parris J., Nov. term, 1833. Tbe jury found for the defendant, as to all the property described in the writ, except the hay and wheat, and as to these, the following facts appeared in evidence.</p> <p>On the 14th of May, 1832, one Samuel Moody, not having either title or possession, by deed conveyed to William Thornes, the plaintiff’s lessor, the homestead farm of Edmund Moody, deceased, and put the said William Thornes into possession, in the manner hereafter mentioned; and the said William, on the samé day, leased the premises to the plaintiff for oUe year; and the plaintiff immediately entered into possession, and improved the premises until the 28th of February, 1833, and the hay and wheat aforesaid, were grown on said premises, under and during the occupancy of the plaintiff, and were cut and cured by him.</p> <p>It appeared that Samuel Moody was administrator on the estate of Edmund Moody, deceased, and that the defendant was one of the heirs at law of said deceased, and was, on the I4ih day of May, 1832, in the possession and occupation of the premises, residing in the house standing thereon, with his family; that the plaintiff, on that day, with Samuel Moody and others, made a forcible and unlawful entry into tbe premises, and forcibly and unlawfully expelled the defendant therefrom, and kept him out of possession until the 28th of February, 1833, when the defendant was restored to the possession, under a judgment duly rendered in his favor, on a process of forcible entry and detainer.</p> <p>During the time between the 14th of May, 1832, and the 28th of Feb. 1833, the plaintiff had the sole and exclusive possession and occupancy of the premises, under his lease.</p> <p>When the defendant was restored to the possession, on the 28th of February, the hay and wheat were in the bam standing on the premises, and he converted said hay and wheat to his own use.</p> <p>For the purpose of having all the facts settled, so that by a decision of the law the case might be determined, the presiding Judge directed the jury to find the value of the hay and wheat, which they did.</p> <p>If, in the opinion of the whole Court, the plaintiff could maintain his action on these facts, judgment was to bo rendered on the verdict, otherwise the verdict was to be set aside and a nonsuit entered.</p> <p>cited the following authorities, in support of positions which were sustained by the opinion of the Court. Higginson v. York, 5 Mass. 341; Loomis v. Green, 7 Greenl. 386; Cox &f al. v. Callender, 9 Mass. 543 ; Cummings et itx. v. Noyes, 10 Mass. 433.</p> <p>contended that the deeds and acts of Samuel Moody, William Thornes, and the plaintiff, on the 14th of May, constituted a disseisin of the defendant • — 'and that as a disseisor, the plaintiff had title, though subject to be defeated by the true owner. All the defendant’s rights therefore to the herbage and produce were suspended until reentry, when he might have had his action to recover the mesne profits. Knevett v. Pool fy al. Oro. Eliz. 464; Allen v. Thayer, 17 Mass. 299 ; Fletcher v. McFarlane, 12 Mass. 43.</p> <p>The law makes a distinction between a personal chattel and real estate. In regard to the former the trespasser is considered such throughout. Not so in the latter. While he is answerable for the first act in trespass, for all the subsequent acts he is not until after a re-entry. He becomes pro hac vice the owner.</p> <p>In an action of trespass for mesne profits, the plaintiff recovers what may be deemed a reasonable rent, and not the value of what the trespasser raises. The labor of the plaintiff had become incorporated into the hay and wheat, when taken by the defendant, and certainly to this he was not entitled, nor could he appropriate it to his own benefit.</p> <p>Again, the defendant v as not entitled to the crops, because they had been severed from the land; it might have been otherwise had they been standing at the time of his re-entry.</p>

This was an action of debt founded on the 5th sec. of ch. 105 of the revised statutes, which provides that, “ if any witness shall fiilsely, wilfully and corruptly certify that he lias travelled a greater number of miles, or attended a greater number of days than he has actually travelled or attended, be shall forfeit and pay, not less than five dollars nor more than thirty dollars for each offence, to be recovered with costs, either by presentment in the Supreme Judicial…

This was an action of debt against the defendant as administrator of the estate of Daniel Lunt, and was founded on a judgment recovered against the defendant, as administrator, within four years from the time of his taking upon himself that trust, this action not having been commenced until after the lapse of said four years.

Assumpsit by the plaintiff, as indorsee of a witnessed promissory note, dated December 18, 1825, against the defendant as promissor. The writ was dated December 11, 1832. The note was payable to one Stephen Oram or his order, and by him indorsed not accountable. The defendant pleaded the general issue, and filed a brief statement, alleging that he never promised within six years, and that material alterations liad been made in and upon the note declared on. .

<p>This was an action of trespass quare clausum fregit, and was submitted for the opinion of the Court upon the following agreed statement of facts. The locus in quo was originally a part of the farm of the defendant, and was set off to one Sally Godjrey on execution against Kincaid. The levy included the whole front of said farm, exclusive of five rods on one side, which was left as a way from the County road to said Kincaid’s back land, which he still owns. It was agreed that, it would cost from $25 to $300 to make said road, thus reserved, passable with carts and carriages. The plaintiff derived title from Sally Godfrey — > and the trespass complained of, was the attempt of the defendant to pass from his back land to the County road over a portion of the land other than the five rods aforesaid.</p> <p>insisted that, the leveying creditor was bound to leave a convenient way — one that could be made passable by the debtor without being subjected to an unreasonable expense, which in this case was not done. And that, when such way is not left, the debtor has a right to select one for himself over the most convenient part of the land. 3 StarTc. Ev. 1678.</p>

This was an action of debt on a probate bond bearing date Nov. 28, 1804, in the penal sum of $10,000, commenced under an order of the Judge of Probate for this county ; said bond was given by tbe defendant, on bis appointment as administrator on the estate of his late brother, Moses Titcomb. The defendant, after oyer pleaded first, non est factum, on which issue was joined.

This was an action of assumpsit for the use and occupation of eight days in a certain saw mill. It was proved that the plaintiff owned the above proportion of the mill, and that the defendants had occupied the same for a considerable part of the time alleged in the writ.

This was a writ of entry. The demandant, in proof of, his title, read a deed from William Stanwood (the admitted owner of the demanded premises on the 6th of March, 1824,) to his son, Charles Stanwood, dated on that day, and recorded March 11, 1824.

<p>This was an action of trespass de bonis asportatis. The defendants in their brief statement, justified the taking under the alleged authority of an execution, issued on a recognizance in favor of William S. Davis, one of the defendants, against Porter, the plaintiff, — said Haskell being a duly qualified constable of Portland, and the other defendant his aid.</p> <p>It appeared that the execution when issued by the magistrate, and when the goods of Porter were taken thereon, was not under seal; but that since the commencement of this action, the Justice by whom it had been issued, affixed a seal to it.</p> <p>Intending to reserve the question, the Chief Justice admitted it to go to the jury as evidence, though objected to by the plaintiff’s counsel.</p> <p>There was another question raised at the trial, with regard to the legality of the sale of a part of the goods, by the officer; he having sold 116 phials containing medicine, in one lot; and “a case of drawers and contents” in another lot. The Judge ruled that the return of the officer was illegal in respect to those articles sold, where the price of each article was not stated; but that the whole return was not vitiated by those instances of illegality ; and that as to all the residue of the articles sold, the return constituted a good justification.</p> <p>A verdict was returned for the plaintiff for the value of the articles aforesaid, sold in lot, without a specification of the price of each, on which judgment was to be rendered if the ruling and instructions of the presiding Judge were correct, otherwise it was to be set aside and a new trial granted.</p> <p>insisted that the magistrate had the power and right to make the amendment by affixing a seal,- and that when made it operated retroactively and justified the officer; and cited the following authorities: Sawyer v. Baker, 3 Greenl. 29; Howard &f al. v. Turner, 6 Greenl. 106; Buck v. Hardy, 6 Greenl. 162; Means v. Osgood, 7 Greenl. 146; 1 M. S. 427 ; Albee v. Ward, 8 Mass. 84; Twamhly v. Hun-newell, 2 Greenl. 221; The People v. Steuben, 5 Wend. 103.</p> <p>He also endeavored to show, that the sale by the defendant, in all other respects, was in conformity to the requisitions of law.</p>

This was an action of covenant broken. The first count in the writ set out a breach of the covenant of warranty, in the defendant’s deed of a certain mill privilege. The second, set out all the covenants in the deed, and alleged a breach of all. The defendant craved oyer of the deed declared on, and then demurred generally.

This was an action of assumpsit, founded upon the award of an arbitrator and a written agreement touching said award. The submission was in the usual form of a rule from a Justice of the Peace, signed, sealed and acknowledged by the parties, but there was one referee only therein appointed. The rule also required a return of the report of the referee to the then next term of the C. C. Pleas.

The only question in this case was, whether Joseph Fowler, summoned as trustee, was chargeable or not. He stated in his disclosure, that he was administrator of the estate of Clement Fowler. That the intestate, at the time of his death, was indebted to the principal defendant in about the sum of fifty dollars.

In this case, which came up from the C. C. Pleas on exceptions to the ruling of the Judge, the plaintiff claimed to recover $110, compensation for his services in repairing a school-house. The defendants proved a payment of $63,43 in part, arid relied on a tender of $36,67 for the residue. The tender was made by one jHumphrey Snow, an inhabitant of said District, he having no prior authority for that purpose regularly given him by the inhabitants of said District.

This action was tried in the Court of Common Pleas, before Whitman C. J. and was assumpsit for supplies furnished certain paupers, alleged to have their legal settlement in the defendant town.

In bis answers Wescott, the supposed trustee, disclosed that the principal defendants, prior to the service of the writ in this case, had placed certain notes in his hands to collect and appropriate in payment of certain debts due from them, and that he gave them tbe following receipt, viz: “ Jan. 25, 1833. Received of Messrs.

The facts in this case are clearly stated in the opinion of the Court. contended that the claim of William. Hyde should be rejected, on the ground that he, being a partner, had no right to draw upon the company fund to satisfy his own claim until after the partnership debts were paid, and cited the following authorities: 1 Chitty’s Dig. of Chan.

This was a writ of entry upon the demandant’s seizin and a disseizin by the tenant, and was tried upon the general issue before Parris J., Nov. term, 1833. Both parties claimed title under James L. Plaice; the plaintiff by deed dated June 30, 1830, the tenant by the levy of an execution, Nov. 1, 1831.

The facts in this case are briefly and clearly stated in the opinion of the Court. Although there was a dissolution of the partnership, yet for the purpose of settling the partnership it still continued. And the creditors of the firm could not lose their lien upon each member of the firm, without the consent of such creditors. Lodge v. Licas, 3 B. A. 614; Smith &f al. v. Rogers, 17 Johns. 340.

Adeline G. Nott was brought before the Court on a writ of habeas corpus, addressed to Curtis Meserve, master of the workhouse in Portland. By the return of the writ it appeared, that on the 2d day of April, 1S34, two of the Overseers of the Poor of Portland, had set forth under their hands that it appeared to them, “ that Adeline.

This was a writ of entry in which the demandant declared on his own seizin and a disseizin by the defendant within twenty years.

<p>This is the same case, in a subsequent stage of its progress, with those reported in 7 Greenl. 302; and 1 Fairf. 53. The additional facts with the arguments of counsel, appear in the opinion of the Court, which was delivered by</p>

This action was replevin for twenty-three boxes of cotton machinery, forty-five yam beams and eight soap stone rollers, alleged to be of the value of $550. The defendant pleaded non cepit, and also filed a brief statement justifying the taking as a deputy sheriff, on a writ in favor of Moses Whittier against Isaac Wendell and George D. Var-ney, the property being, as was alleged, that of said Wendell and Varney, or one of them.

This was au action of assumpsit, in which the plaintiff sought to charge the defendant for certain sums of money paid, laid out and expended by him, at the request, and for the benefit of the defendant.

In this action, which was debt upon a bond given by the principal defendant with the others as his sureties, to procure for him the liberties of the prison limits, it appeared by copies of proceedings before two Justices of the quorum, produced in evidence by the defendant, that he had been duly discharged on taking the poor debtor’s oath, pursuant to the provisions of the statute. And it was agreed that lie had thereupon gone at large.

<p>The taking of the property of one, by a coroner, on a writ against another, is a malfeasance in office, constituting a breach of his bond given for “ the faith» fill performance of the duties of his office.”</p>

This was an appeal from a decree of the Judge of Probate, licensing the respondent as administrator of the estate of Edmund Moody, to sell so much of the real estate of his intestate as would produce the sum of ‡ 1500. Sally Moody, the appellant was a daughter and heir to the deceased, and had complied with the requisitions of the statute in giving bond, filing reasons of appeal, &tc.

This was assumpsit on a promissory note of hand, given by Edmund Moody, Joshua Moody, and Waldo Hill, to the nominal plaintiff. Hill died after the commencement of the action, and Joshua Moody was defaulted: hut Edmund Moody defended, on the ground that the note had been paid by the two last named defendants, and that the suit was prosecuted for their benefit.

This was an action of assumpsit. The writ contained three counts : 1. indebitatus assumpsit on account annexed —• 2. for the freight of certain goods from Newburyport to Robbinston, and for the wharfage and expenses in taking care of said goods — and 3. quantum meruit for the freight, hauling and taking care of the same goods.

<p>The acceptance, or rejection, by County Commissioners, of the report of a committee appointed by said Commissioners pursuant to the laws of this State and the agreement of the persons interested, to ascertain the amount of damages caused by the laying out of a highway, was held to he a judicial, and not a ministerial act — and therefore, an application for a writ of mandamus to compel the Commissioners to accept such report, was denied.</p> <p>This wTas a petition for mandamus to tbe York County Commissioners, to compel them to accept the report of a committee appointed to estimate the damages in the location of a road.</p> <p>By the certified proceedings of the Commissioners, it appeared that a County road was laid out over the property of the petitioners in the year LS31, of which a return was made and accepted at a regular session of the County Commissioners, on the 2d Tuesday of October, of the same year, and that tbe sum of $100, as damages, was alkwed to said Proprietors. That said Proprietors were dissatisfied with the allowance made them, and at the May session, 1832, petitioned for the appointment of a committee to estimate the damages anew — and Timothy Shaw, Archibald Smith, Jr. and Moses Jlubbard' were appointed such committee by agreement of said Proprietors and the County Attorney. On the 2d Tuesday of October, 1832, two of said committee reported in the premises, Shaw dissenting, allowing as damages to tbe Proprietors, the sum of $200. This report the Commissioners refused to accept, for tbe following reasons,Vhich were entered of record:</p> <p>1. “ Because the Proprietors of said Toll Bridge relinquished all right to said bridge and its privilege and appurtenances to the towns of Kennebunk and Kennebunkport in consideration that the highway aforesaid should be located across said bridge — and in consideration of $100 awarded them by said Commissioners, to be paid by the County aforesaid, agreed with said Commissioners to accept that sum in full of all damages sustained by them the said Proprietors, on account of the location of said highway.”</p> <p>2. “ Because if said Proprietors are entitled to any increase of damages, the sum awarded them by said Committee was excessive.”</p> <p>3. “ Because the Committee aforesaid were not all agreed on said report, two only signing it, and assenting thereto — the other dissenting, and assigning his reasons therefor.”</p> <p>To compel the Commissioners to accept this report, the present application for a mandamus was made.</p> <p>1. The report of the committee was valid though signed by two only. Whenever a committee is appointed by law, or by the Court, or is of a public character, it may act by a majority. Grinley v. Barker, 1 Bos. Pul. 229; Bex v. Beeston, 3 T. B. 593; 8 East, 319; Orbis v. Thompson, 1 Johns. 500; Green v. Miller, 6 Johns. 39; 1 Cowen's Bep. 138; Barret v. Porter, 14 Mass. 143; Maine stat. ch. 118.</p> <p>2. The duty of the Commissioners to accept the report of the committee was imperative — it was not discretionary with them — see statute, ch. 500.</p> <p>The nature of their powers is the same with that of the old Courts of Session — and they were held to be mere ministerial officers. Commonwealth v. Balkam, 3 Pick. 281; Wilbraham v. County Com. of Hampden, 11 Pick. 322; 5 Johns. 282; Danvers v. Essex County Com. 6 Pick. 20.</p> <p>3. The Commissioners had no right to reject the report on thé ground that the damages were excessive. Or if they had, they should have been bound by the evidence before them, and not by the results of their own previous personal examination. The People v. The Sessions of Shenango, Caines' Cas. in Error, 319.</p> <p>Howard, County Attorney, resisted the argument for the Petitioners, and cited, Commonwealth v. Justices of the Court of Sessions for Norfolk, 5 Mass. 435 ; Grinley v. Barker Sf al. 1 Bos. Pul. 229; Cook v. Lovelander al. 2 Bos. &f Pul. 31; Green v. Johnson, 6 Johns. 39; Towne v. Jaquith, 6 Mass. 46; 5 Com. Dig. title Mandamus A. 3 Bile. Com. 110.</p>

Assumpsit upon the following agreement, viz: “We the undersigned committee for the first school district, south side in Bethel, promise in behalf of said district, to pay William Andrews one hundred and five dollars and seventy-five cents, by the first day of November next, providing said Andrews shall complete a school-house in said district to the acceptance of a committee and time specified in a bond which he has given, bearing even date with this.

This was an action on the statute respecting highways, ch. 11S, brought to recover damages for an injury sustained by the plaintiff by reason of an obstruction in a public street in -the city of Portland. It appeared in evidence that a quantity of bricks had been placed in Congress street, opposite the Court-House and outside the curb stones of the side-walk, for the purpose of making and completing the side-walk within the curb stones.

This was an application ior a writ of certiorari to quash the proceedings of the County Commissioners in the laying out of a County road from the town of Jay, through Livermore, to Turner.

<p>Where one in selling a mill, dam and slip, reserved the right of “ slipping his own logs free of toll" it was holden to be a personal right merely, and not assignable.</p> <p>Such little streams as cannot in their natural state be used for the floating of boats, &c. and for the transportation of property, are to be regarded as private property and not as public highways: — and though by the application of artificial means, at the expense of the owner, they become boatable and susceptible of public use, yet they do not thereby become the property of the public.</p> <p>Whether one can open a way across his land, and then exact a toll for the use of a common passage through it, without authority from the legislature — duUtatur. Though he may, undoubtedly, open a way for his own accommodation, and refuse to permit others to use it without a just compensation.</p>

This was an action of debt against the defendant as the keeper of the jail in this county, for the escape of certain prisoners who were committed on execution for debt. The prisoners had given bond for the liberty of the jail-yard and had subsequently taken the poor debtor’s oath and been discharged — but the bond had been approved by but one Justice of the Peace and of the quorum.

This was an action of assumpsit on the following note, viz : “ Thomaston, April 10th, 1832.

This action was assumpsit for the use and occupation of certain mills at M^scassei, owned by the plaintiff, and was referred. The terms of the submission were to decide the cause according to law. Prior to the submission the defendants had tendered and paid into Court the sum of $134. The referees made a special report in favor of the defendants and referred to certain papers from which the following facts may be gathered.

<p>A will, made and executed jointly by husband and wife, devising estate of which he was sole owner, was, on his death, sustained as a valid will of the husband alone.</p>

<p>Money paid to a town for the office of Constable, it having been put at auction prior to the choice, cannot be recovered back. In such case, the rule of law, in pari delictosf potior est conditio dejendcntis) well applies.</p>

This was an action of trespass quart clausum fregit, for open-_ ing a mill-dam which had been built across Madomak river, in Waldoborough; and was tried before Mellen, C. J., September term, 1833.

This was a writ of entry, in which the plaintiff claimed the demanded premises as heir of Joseph Kelley, whose daughter and heir it was agreed she was. The case was submitted for the opinion of the Court upon the following agreed statement of facts.

<p>Assumpsit on the following promissory note:</p> <p>“ jBoston, April 20, 1833.</p> <p>For value received, I, Ammi West, of Augusta, County of Kennebec, and State of Maine, promise to pay Henry Rice &f Co. or order, ten hundred and two dollars and ninety-six cents on demand, with interest after six months.</p> <p> Ammi West.” </p> <p>The action was commenced within six months from the date of the note, and the question was, whether the note was payable on demand, or in six months. It was admitted, that the note was given tor goods.</p> <p>There were other facts agreed in the case, if testimony to prove them was admissible ; but it was rejected. It was agreed that if the opinion of the Court should be, that the note was recoverable before the lapse of six months, the defendant was to be defaulted.</p> <p>contended that the true construction of the note was, that it should be payable “ on demand after six months, with interest after six months.” By adopting this construction a meaning and force is given to every expression in the note. The parties fix a time when interest is to be payable, to wit, the 20th of October, 1833, and not before. Now if this suit be sustained, the plaintiff would recover interest before the expiration of the six months, in direct violation of the contract. If this note was payable presently, then it was dishonored tlic day after it was given, and the goods for which it was given, might have been attached in a suit on the note. Could this have been the intention of the parties ? and the intention is to govern in the construction of the contract. If the plaintiff wanted the privilege of suing before the expiration of the six months, if he should deem it necessary for his security, that should have been incorporated into the note ; then the defendant would at least have understood his liability.</p> <p>Again, receiving interest in advance for 60 days is an agreement to wait that time. Kannebec Bank v. Tuckerman, 5 Greenl. 130. Now here, the Boston merchants have their cash price and their credit price. If six months’ credit in any case be given, the interest for that time is charged in the price. Upon the principle, therefore, of the case of Kennebec Bank v. Tuck-erman, the plaintiff agreed to wait six months.</p> <p>This form is adopted for a snare to entrap the unwary, and the attempt should not be permitted to succeed. Chitty on Bills, 29. They also cited to other points, the case of Haywood v. Perrin, 10 Pick. 228.</p> <p>cited Holmer v. Finer, 1 Esp. R. 132; Chitty on Bills, 540; Boring v. Gurney, 5 Pick. 15.</p>

This was an action of debt on a bond given by the defendant to the plaintiff for the performance of an award. The general issue was pleaded, with a brief statement setting forth sundry matters of defence. “ It appeared that on the 15th of February, 1830, one Joseph Comings, conveyed to Zilpha Stuart, the wife of the defendant, a certain farm in fee. That afterwards, the said Comings was duly placed under the guardianship of the plaintiff, being then a lunatic.

This was an action of debt brought to recover of the defendant certain penalties imposed by statute of 1821, ch. 92, for serving writs and executions as Constable, without having previously given bond to the Treasurer of the town, according to the provisions of said statute.

This was an action on statute of 1821, ch. 118, sec. 17, brought to recover damages for an injury to the plaintiffs’ cattle by the falling of a bridge in Solon, over which the plaintiffs were driving them. It was tried in the C. C. Pleas, before Whitman C. J, and was brought to this Court on exceptions. Much evidence was offered on both sides, to show the state and condition of the bridge at the time of the injury.

<p>This was an action of trespass, in which the defendant was charged with killing the plaintiff’s horse, by running against him "with his, the defendant’s wagon, and thrusting a shaft of the wagon jnt0 tjie horse’s breast. A verdict was returned for the plaintiff; whereupon the defendant moved for a new trial, on the ground that the verdict was against evidence and the weight of evidence.</p> <p>The substance of the facts are clearly stated in the opinion of the Court.</p> <p>endeavored to show that the verdict was against the weight of evidence, and also contended, that the statute did not apply to a case of this kind, the defendant being at the time of the injury, out of the highway; that is, out of the travelled part of the road. And 2. That the plaintiff was not entitled to recover in this action, because he was not using ordinary care, at the time of the injury, and cited the following authorities. Ciarle, Petitioner v. Commonwealth, 4 Pick. 125; Smith v. Smith, 2 Pick. 621; Butterfield v. Forrester, 11 East, 60; Farnum v. Concord, 2 N. H. Rep. 392.</p> <p>cited Fates v. Dearborn, 1 Pick. 345.</p>

This was an action of trespass on the case for erecting and keeping up a dam at the out-let of the “ twelve-mile pond” in Vassalhorough, by which the plaintiffs’ bridge, as alleged, and a part of their road, were overflowed and much injured. The general issue was pleaded and joined.

This was an action of debt on recognizance to prosecute an appeal taken before a Justice of the Peace. The defendant demurred to the declaration, and the demurrer was joined. It was not averred in the declaration that rhe recognizance had in fact been returned to the term of the Court at which it was returnable —or that the Justice had jurisdiction of the cause in which it was taken.

This was an action of assumpsit for labor performed, and was tried upon the general issue, before Weston J. at the last October term in this County. The plaintiffs introduced proof that labor had been performed by one of them, Jewett, and his two sons, upon the defendant’s house. But it coming out in evidence that the work was done under a special contract, the defendant objected to the maintenance of this action, insisting that it should have been brought upon the contract.

<p>In an action on a promissory note, brought by the indorsee, who liad taken it when oyer-due, the defendant filed his account against the payee up to the time of the indorsement, in set-off. Held, that it was competent for the plaintiff to exhibit proof of the payee’s account against the defendant, or other repelling evidence against the off-set.</p> <p>The Judge in his instructions to the jury, is not obliged to give his opinion upon legal propositions put by counsel, by way of hypothesis, not growing out of the facts proved.</p>

This was an action of assumpsit founded upon the following receipt or memorandum in writing, viz : “ St. Andrews, April 6, 1829.

Assumpsit upon the following contract, viz: “ This may certify that we Joseph Holbrook, as principal, and Warren Preston, I 11 as surety, do agree to indemnify and save harmless Samuel Hol-brook, from all claim, right and title Saul Holbrook has in the premises conveyed by said Samuel to the said Preston by deed dated April 29, 1828. Joseph Holbrook, Warren Preston.

This was an action of debt, brought in the name of the State Treasurer, against the defendant, late Clerk of the Courts in this county. The facts were agreed, and are sufficiently stated in the opinion of the Court, which was delivered by

This was an action of assumpsit upon an account annexed to the writ, for materials found, and labor furnished, in tbe building a bridge across “ cold stream” in the town of Cornville, amounting to $26,05.

This was trover for a saw-mill, and is the same ease reported si 1 Fairf. 429. it appeared that the mill in question was built * by tlie procurement of Aaron Church and Shubael Vance, upon , a privilege belonging to William Vance, by his eonsent.

Assumpsit upon the following promissory note : “Madison, July 31, 1826. For value received, I promise to pay Jacob Matthews or order, forty-live dollars in grain, at the market price, next January, or forty dollars in two years from next January, and interest.

<p>The?plaintiff cut logs upon the land of another without license, and sold them upon credit to the defendants, informing them fully 3.t the time of the above fact, and they expressly agreeing to take them, subject to the claims of the true owner. Held, in an action brought for the price, that a defence, founded upon the alleged want or mdawfutness of consideration for their promise, could not prevail.</p>

A verdict in this case was rendered for the plaintiff, which was to stand or be set aside, as the opinion of the Court should be upon the whole case. The facts are sufficiently stated in the opinion of the Court, which was delivered at the ensuing Juné term in this county, by

This was an indictment charging the respondent with the crime of adultery. To prove the marriage the government relied_¶ on evidence of the folio wine: facts:- — -The respondent moved 19 158! . . 44 479' into the town of Fayette, in this State, more than twenty years _ ago, representing at that time, to the person of whom he hired the house, that he had a small family, only a wife and one child.

This was assumpsit on the following promissory note, viz : “ Sunkhaze, Dec. 17, 1831. Value received I promise to pay James W. Wyman, or order, the sum of seventy dollars, to be paid in lumber, delivered at Bangor in the month of June next.” — The writ also contained a count for money had and received. Plea, the general issue, accompanied by a brief statement.

<p>This was an action of debt, brought by the plaintiff as clerk of a militia company, to recover a penalty alleged to have been incurred by the defendant, by neglecting to attend a company training. It was 'originally tried before a Justice of the Peace, and brought into this Court by exceptions to his ruling — the exceptions having been sustained, a new trial was ordered in this Court.</p> <p>The plaintiff, to prove the bounds of the company, offered the captain’s commission and much other evidence of a secondary character, which was objected to by the defendant’s counsel, and ruled to be inadmissible by Weston J. the presiding Judge. Whereupon a nonsuit by consent was entered, which was to stand, or be taken off and a new trial ordered, according to the opinion of the whole Court upon the correctness of the foregoing ruling.</p> <p>contended, that by Statute, eh. 567, sec. 4, the commission of the captain was made sufficient evidence of the point here proposed to be proved. This statute applies as well to cases existing before, as to those occurring after its passage. Baeon v. Callender, 6 Mass. 303.</p> <p>The other evidence offered in the case was also sufficient to prove the existence and bounds of the company. 4 Mass. 140 ; 5 Mass. 553.</p> <p>cited Kirwan v. Cockburn, 5 Esp. 233 ; Sawtel v, Davis, 5 Greenl. 438.</p>

This was a petition for partition of certain flats in Bangor, against persons unknown. Veazie, the respondent appeared and contested the seizin of the petitioner in a part of the land of which partition was prayed, claiming to be sole seised of that part —■ and upon a traverse of the seizin of the petitioner as alleged, issue was joined.

This action was originally commenced before a Justice of the Peace and carried to the Court of Common Pleas, by appeal. While pending there, the parties agreed on a statement of facts, and judgment being rendered thereon, the defendant appealed to this Court, and the question was whether the appeal was sustainable. The first section of statute of 1829, ch. 444, provides for the right of appeal in certain actions, from the judgment in the C. C. Pleas.

Replevin for hay, hogs, oars, &c. Plea, property In one Oren Briggs, and that they were attached on a writ, O. Crosby fy «i- against him. On trial, it appeared that the hogs and oars bad been received by Briggs as the produce of a sale of goods which the plaintiff alleged were his, the said Briggs acting in said transaction, as agent, merely.

<p>This was an action of debt brought to recover $100, it being the sum allowed the plaintiff by the Selectmen of Orono, as the amount of damages for the location of a town or private way over his land. Plea, the general issue.</p> <p>The plaintiff, to support his action, introduced the records of the town of Orono, from which it appeared, that, on application of the President of the Oldtown Bridge Corporation, the Selectmen of Orono proceeded to lay out a road over the land of the plaintiff, after due notice, and awarded the sum demanded in this action, “ to be paid by the Oldtown Bridge Corporation.” It further appeared that a meeting of said inhabitants was duly called and held under a warrant containing the following article, viz.: “ To see if said town will accept a road laid out by the “ Selectmen, leading from the main travelled road to the bridge, “ about to be located by the Oldtown Bridge Corporation, across “ the Penobscot river near the dwellinghouse of James Draper, “ in said Orono, as surveyed and returned under the direction “ of said Selectmen by Joseph Treat, Esq. — for the making “ and keeping in repair of which, and the payment of all dam- “ ages to any person, by him sustained, by reason of the laying “ out of which said Corporation have lodged a bond with us.” Under this article the town voted, “ to accept the road laid out,” &tc. — “ to be accepted agreeable to the conditions of the bond filed with the Selectmen.”</p> <p>The plaintiff then introduced the bond referred to in said note, which was in the penal sum of two hundred dollars, conditioned that, “ if upon the acceptance of said highway by said town, the said Corporation shall make and keep the same in good repair, and shall well and truly pay all damages which any owner or owners of the land over which said road passes may legally recover, and save the said town harmless by reason of laying out the road aforesaid in any respect, then this obligation to be void, otherwise to remain in full force and virtue.”</p> <p>Upon this evidence Whitman C. J. in the Court Common Pleas, ordered a nonsuit, and the case was brought up to this Court on exceptions.</p> <p>referred to statute ch. ]]S, sec. 9, which provides, “ that the Selectmen of the several towns in this State, are authorised and empowered, to lay out town or private ways for the use of such town only, or for one or more individuals thereof, or proprietors therein.” “ And if any person or persons, who are owners of the land through which such way shall be laid out, be injured thereby, he or they shall receive such recompense as the party injured and the Selectmen shall agree upon, to be paid by the town or person or persons for whose use the said way is laid out.” Also to statute ch. 399, sec. 6, which provides as follows : “ That, in all cases where the damages for the laying out of any town or private way have been finally determined and ascertained, the person or persons entitled to such damages may recover the same as well as all costs for him or them taxed in making inquiry thereof, in an action of debt. Provided, demand for the payment of the same has been made on the treasurer of any town, liable to pay the same, thirty days at least before the suit is brought.” And contended, that, by virtue of these provisions, and the proceedings of the town, the action was rightly brought against the defendants instead of the bridge corporation. It was the design of the statute that the person injured should look to the town, and that the latter might indemnify itself by taking a bond or otherwise. The statute never intended to give towns authority to take the property of individuals and turn them over for redress to third persons who may be wholly irresponsible. Hence, in the statute last cited it is said, that in all cases where the damages have been ascertained, &c. there should be a demand on the town treasurer before suit brought. Why should the demand be upou a town officer, unless the suit is to be against the town ? And if the town is not to be liable, why are the Selectmen to agree upon the damages ? Why not let those agree who are to pay, if the town is not ?</p> <p>But if the statute be construed otherwise, still, it is competent for the town to agree to pay. And it is contended, that, the award of the Selectmen, and the taking of the bond from the bridge corporation amount to such an agreement.</p> <p>Or the assessment of damages by the Selectmen may be considered as an offer, and the bringing of this action an acceptance of it. No precise words or form are necessary to constitute an agreement. .</p> <p>contended that, the Selectmen had no authority to assess the damages. They might have agreed with the owner of the land — but in case of disagreement, application should have been made to the Court of Sessions. The town therefore is not bound. Craige v. Mellen, 6 Mass. 7.</p> <p>If the proceedings of the town give any right of action to the plaintiff, it is against the bridge corporation — such are the terms of the award under which he pretends to claim. In no case of the location of a private way, can a town be held liable for the damages to individuals.</p>

This was a writ of entry for the recovery of certain lands alleged to be in the town of Dutton. The demandant shew a conveyance from the Commonwealth of Massachusetts to Henry Jackson, dated October 3d, 1797, and derived title from him'. The defendants claimed title to the contiguous lot under a deed from the Commonwealth of Massachusetts to Parks Sy Lowder, dated September 21, 1825, and from the latter to them.

Tins was a writ of entry to recover possession of certain lands situated in Bangor in this county. Both parties claimed under deeds from the Comm-onwealth of Massachusetts; the demand-ant, lot No. 71, and the defendant, lot No. 7; both deeds referring to Holland’s plan.

Assumpsit on a promissory note for $61,55, dated April 8, 1829, given by the defendant to the plaintiff and payable in two years from the first of June, 1829.

Assumpsit on a promissory note for $151,57, dated Jan. 11, 1833. The defence was, that the note was invalid by reason of the failure of a condition upon which alone it was to be binding. Two witnesses for the defendant, testified, that on the day of the giving of the note, Gustams G. Cushman, the Attorney of the plaintiff, and Jos.

In this case the principal question was upon the sufficiency of the indorsement of the writ, which was thus: “ Jacob Stevens, indorser.” It was admitted to have been written by B. F. Emery, Esq. the attorney who commenced the action — but in the presence of said Stevens, he making no objection thereto. The writ was drawn at the request of Stevens, and when made was delivered to him.

Assumpsit on a promissory note for forty-five dollars, given by the defendant to the plaintiff, dated March 10th, 1832, and payable in January then next. The note was not negotiable, and the suit was brought for the benefit of Francis Hill.

<p>The defendant having been employed under the plaintiffs in selling goods at s store in Levant, assigned to them all the book debts of the concern, there being' then, certain claims outstanding against the concern entitled to off-set, the defendant agreeing to render assistance in the collection. The books and accounts were handed over to F. an attorney, for collection — after which, the’ books being with the defendant by consent of the attorney, certain accounts on the leger were balanced by the defendant, he making the following entries, “ by your account rendered” — “ by hay” — “ by cash.” Afterward the parties submitted their mutual claims to arbitration, and in pursuance of the award, the defendant gave bond with surety, to deliver over all the property, &c. belonging to the concern which had been received by him. In an action on the1 Bond, it was held, that the mere entries on the leger aforesaid, (except the cash) unaccompanied by other evidence or explanation were net sufficient to charge the defendant for the amount — the 'presumption being that they were accounts legally existing against the concern and not against the defendant personally.</p>

<p>A minor, illegitimate and non compos mentis, was held to be incapable of gaining' a seTOWaent in a town by residing therein at the time of its incorporation, un dor the provisions of stat. of 1821, ch. 122 — ■ its mother living at the time, and * there having been no emancipation.</p> <p>The words,iC all persons,” in the statute, must be regarded as applying to those persons who are legally capable of gaining a settlement in their own right in any other mode*</p>

This was an action of assumpsit for work and labor accordingly to an account annexed to the writ, the principal items of which,} were for working out the defendant’s highway taxes in Plymouth,1 five years. The plaintiff founded his claim upon proof of employment to do the work, by one Norris, who, he alleged, was the agent of the defendant.

<p>In a case of the contested settlement of a pauper, his declarations made while in one of the towns litigant, indicative of his intentions as to the place of his residence, were held to he admissible in evidence as facts, or parts of the res gestee. — though such pauper be living and present in Court at the time of the trial.</p>

The writ in this case was' indorsed thus: “R. K. Porter, A.t-to’y to Plff.” — and at the first term a motion was made to qúash it for want of a sufficient indorsement. Parris J. denied the motion — whereupon a default was entered, which was to stand, or be taken off and the writ quashed, according to the opinion of the Court upon the question reserved.

<p>This was an action of indebitatus assumpsit on an account annexed to the writ, for goods sold and delivered, $26 — and a due bill for goods, $4.</p> <p>On trial before Perham J. in tbe Court of Common Pleas, tbe plaintiffs offered evidence tending to prove that when they sold the goods charged to the defendant, he let them have a note therefor against one Rufus K. Lane, for $30, agreeing that if Lane did not pay the note the first time payment was asked of hMj he, the defendant, would take back the note and pay them ■for it, of for the goods. That, they called on Lane for payment, hut did not obtain it-, and that they notified the defendant thereof, and proffered him the note according to the agreement.</p> <p>On the other hand, the defendant offered evidence tending to prove that the plaintiffs- to'ok the note absolutely, and at their own risk, and requested the Judge to instruct the jury, that, if they found the agreement to be as the plaintiffs contended it was, then the calling on Lane for payment and his refusal was a condition precedent to the plaintiff’s right of recovery; and that this ’should have been specially averred in the declaration, and proved at tbe trial.</p> <p>The Judge instructed the jury, that if they were satisfied ii'om the evidence, that the note was received of the defendant absolutely and unconditionally in payment for the goods and due-hill, this action could not be maintained. But if they were satisfied that the defendant agreed at the time the bargain was made, that if Lane did not pay the note the first time payment was demanded, the defendant would take it back and pay the money — that the plaintiffs did call on Lane and that he did not pay the note —■ and that the plaintiffs had notified the defendant of these facts -and offered back the note to him, according to the agreement — 1 in that case, the plaintiffs were entitled to recover in this action the value of the articles charged in the account annexed, with interest thereon from the date of the service of the writ.</p> <p>The jury returned their verdict for the plaintiffs. To the foregoing ruling the defendant tendered a bill of exceptions, and thereupon brought the case up to this Court.</p> <p>If the defendant is holden here, it must be a contract express or implied, and not on both. There can be no implied promise where there is an express one. One excludes the other. Tous-sart v. Martineau, 2 T. R. 105; Whiting v. Sullivan, 7 Mass. 109; A East, 147; Poulter v. Ellinbach, 1 R. &f P. 397; 2 Dane’s Abr. 44, 45.</p> <p>So long as the contract is open and an action can be maintained thereon, the party must resort to it. 1 Dane’s Abr. 221; Weston v. Downes, 1 Doug. 23; Toivns v. Barry, 1 T. R. 134. It cannot be rescinded unless both parties can be left in the same situation as if no such special contract had been made. 4 Dane’s Abr. 471; Conner v. Henderson, 15 Mass. 319. In this case the special contract was open and unrescinded and should therefore have been set forth in the declaration.</p> <p>The instructions given were erroneous also because of their uncertainty, leaving it in doubt what the money was to be paid for, whether the note or goods.</p> <p>cited the following authorities: Sheehy v. Mandeville, 6 Crunch, 253; Felton v. Dickerson, 10 Mass. 287 ; Baylies v. Fettyplace, 7 Mass. 325; Whipple v. Dow, 2 Mass. 415; Goodrich v. Baffin, 1 Pick. 57 ; Keyes v. Stone, 5 Mass. 391; 7 Johns. 132; 10 Johns. 35; Greenwood v. Curtis, 6 Mass. 358; Emerson v. Providence Hat. Man. Co.. 12 Mass. 237; 1 Cowan, 359; Gibbs v. Bryant, 1 Pick. 118.</p>

<p>On certiorari, it appearing by the record of tlie Court of Sessions sent up, that a member of that Court was the owner of certain land over which a County road was located, at the time of the adjudication that such road was of common convenience and necessity, and when the return of the committee was accepted; and it not appearing Inj the record, (he being present) that he did not participate in the proceedings — they were quashed.</p> <p>The procedings were further held to be irregular, one of the petitioners having been appointed, and having acted as one of a committee of three to lay out the road.</p>

Assumpsit on the following promissory note: “For value received we jointly and severally promise James Irish, Land Agent of Maine, to pay him or his order one hundred and twenty-five dollars in three years and interest annually. James Boies. Ichabod RusselL,, When Irish retired from office, he delivered this note to his successor as the property of the State, and a suit was brought thereon for the benefit of the State.

<p>A tender, made to a clerk in the plaintiff’s store, for goods purchased at such store, is equivalent to a tender to the principal himself — and is sufficient, though prior thereto, the claim had been lodged with an attorney for suit.</p> <p>The clerk could also waive any objection to the validity of the tender, on the ground of its being in bank bills and not in specie.</p> <p>Such waiver may be by implication as well as express.</p>

This was assumpsit to recover freight for transporting the defendant’s goods from Boston to a place called Burnt Coat, in Nov. 1827, in the Schooner Polly, of which the defendant was ]yjagter5 an¿ for use 0f saj(j vesse] and crew in taking goods from a wreck. The amount charged was $52,25. The general issue was pleaded and joined.

This was a writ of entry in which the demandant claimed twelve undivided fourteenth parts of a lot of land lying on Union river — and was submitted for the opinion of the Court upon the following agreed statement of facts : —■ The demandant claimed under his father, Caleb Maddocks — and the tenant under the heirs of Benjamin Milliken.

This was an action of assumpsit on the written contract of the defendant as agent for the trustees of the heirs of William Bing-ham, to convey to Gilmore and Beane, the plaintiffs, or to whom they should appoint, certain real estate, on their payment of four notes of hand, amounting to $1145. The contract was dated May 1, 1828.

<p>Á demand upon the maker of a note by the cashier of a bank in which it had been left for collection, is sufficient to charge the indorser, though such cashier had not the note with him at the time — all the parties residing in the town where the bank was located.</p>

This was scire facias against the defendant as indorser of an original writ in favor of one Eliza HarJcness against the present plaintiff, on which judgment had been rendered in favor of the present plaintiff for costs. An execution had issued, and had been returned within three mouths in no part satisfied.

This was an action of the case brought by tiie plaintiff, a vender of tickets, against the defendant as Post-master at Belfast.