Volume 12 — Maine Reports

This was an action of covenant broken in which the plaintiff declared on a breach of the defendant’s covenant of warranty in his deed to the plaintiff conveying certain real estate.

<p>The admissions of one of two joint partners, though made after the dissolution of the paríriercMp, are suiacicnl to taLc a c: ;o out of the statute cf Itebiatioiio as to both ; the existence of the debí prior to the dissolution being proved by other evidence.</p>

This was an action of assumpsit on a promissory note of hand, and was submitted for the opinion of the Court upon the following agreed statement of facts. The action was brought in tlie name of the payees for the benefit of their creditors on the day that the note fell due, to wit, June MAh; hut prior to this, it had been negotiated by them to to the Maine Bank in the regular course of business and its amount received.

<p>One summoned as trustee in a process of foreign attachment, is “ adefendant” within the meaning of stat. of 1827, ch. 35!), which provides that where there are two or more defendants living in different counties, a Justice suit may he maintained against them all in the county in which either defendant lives.</p> <p>A judgment of a Justice of the Peace, against one summoned as trustee under process of foreign attachment, in a case within his jurisdiction, though erroneous, cannot be avoided collaterally, but may be enforced until reversed on writ of error.</p>

This was an action of assumpsit, upon a promissory note of the defendant for one hundred dollars, payable in one year with interest, at the defendant’s store in Baldwin. On the back of it was an indorsement of forty dollars in the hand writing of the defendant, and bearing date subsequent to the maturity of the note.

<p>This was an action of assumpsit, tbe writ containing seven counts. One was on an account annexed to the writ for the sum of $5,50, and the remainder, stripped of all technicality, were on a special parol contract, for the purchase by the defendant; of a lot of land and store thereon, situated in the town of Windham.</p> <p>It appeared in evidence, that the defendant was to pay the plaintiff for the store and lot, the sum of $150. One half in money and the remainder in the notes of Moses Little, to whom the defendant was to sell his store for that sum, payable in one, two and three years without interest. The plaintiff was also to have four shares in an aqueduct company which was to be benefited by the removal of the plaintiff’s store. It appeared, that in pursuance of the agreement, Little moved into and took possession of the defendant’s store, and the defendant caused the store of the plaintiff to be removed to another lot. Afterward, upon two or three occasions, the defendant called upon the plaintiff for a deed of the store and lot, but be declined giving him one, because, he had not received a deed himself from Elias Thomas, of whom he had bought the property, and because of a right of redemption existing in Thomas’s mortgagor which had still a short time to run.</p> <p>After the lapse of about three years, and after the defendant had removed from the town of Windham, the plaintiff tendered him a deed of the store and lot and demanded the stipulated price; but the defendant declined receiving the deed or paying the price.</p> <p>There was much evidence in the case, but from the turn which the cause finally took, the foregoing facts may be regarded, as those only which are material to be reported.</p> <p>A verdict was returned for the plaintiff, for the amount of the account annexed to the writ, $5, 50 ; which was to be enlarged, ór otherwise., as the opinion of the Court should be upon the whole case.</p> <p>relied upon the statute of frauds, the contract not having been in writing — and contended that the doctrine of part performance, in a Court of law, did not take a case out of the statute — that, was confined to a Court of Chancery ; and cited Kidder v. Hunt, 1 Pick. 328 ; Freeport v. Bartol, 3 Greenl. 340.</p> <p>He also insisted, that the defendant’s liability under the contract, if it was a valid one, ceased after the refusal of the plaintiff to give a deed on the demand of the defendant.</p> <p>contended that the case was taken out of the statute of frauds by the part performance of both parties, and cited to this point the following authorities : Seymour v. Bennett, 14 Mass. 266 ; Davenport v. Mason, 15 Mass. 92; Crosby v. Wardsworth, 6 East, 611 ; Pike v. Williams, 2 Fern. 455 ; Earl of Aylsford,’s case, 2 Stra. 783 ; Wilkinson v. Scott, 17 Mass. 249; Com. on Con. 80; Sugden’s Law of Fendors, 72, note 7 ; Winter v. Bracknell, 8 East, 308; Inman v. Stamp, 1 Stark. 11; Lofft, 331; Boyd v. Stone, 15 Mass. 342; Bicker v. Kelly, 1 Greenl. 117 ; Lessee of Tyler v. Eckhart, 1 Bin. 378 ; Welles v. Stradling, 3 Fes. Jr., 381; Billington v. Welch, 5 Bin. 129; 2 Phil. Ev. 65; 14 Johns. 453.</p> <p>2. The covenants or promises of the parties were mutual and independent, and the plaintiff might maintain his action without showing a tender of the deed. Smith v. Sinclair, 15 Mass. 171 ; Sears v. Fowler, 2 Johns. 272; Campbell v. Jones, 6 T. B. 570; Bondage v. Coe, 1 Saund. 120.</p>

This case is sufficiently stated in the opinion of the Court. The principal question being, whether it was necessary for the plaintiff in a prosecution under the Bastardy act, to allege in her declaration, that she being put upon the discovery of the truth, during the time of her travail, accused the respondent of being the father of her child. contended that it was not. That, this was only necessary, in order to qualify her for a witness.

This was an action of trespass originally commenced before a Justice of the Peace, carried to the Court of Common Pleas by appeal, and brought into this Court by writ of error. The trespass alleged, was the throwing down the plaintiff’s fence. The defendant justified on the ground that the fence was extended across a town road, and that it was removed to enable him to exercise his legal right of passing thereon.

Tins case, which was trespass quare clausum fregit, is sufficiently stated in the opinion of the Court. Mellen, for the plaintiff, cited the following authorities : Gould’s PI. 354 ; Proprietors of Ken. Pur. v. Laboree, 2 Greenl. 275 ; Little v. Megquier, 2 Greenl. 176; 5 Com. Dig. Pleader, E. 36 ; 1 Saund. 28 ; 1 Chit.

This was an action of dower, wherein the demandants alleged, that, Elcy Knight was formerly the wife of James Mains, deceased, and that the said James Mains during the coverture of the said Elcy with him, was seised of a lot of land on the Cape, lying between the towns of Standish and Windham, being lot numbered five, containing sixty acres, in which lot she claimed her dower.

This was an action of assumpsit on a policy of insurance, wherein the defendants insured the plaintiff against fire to the amount of two hundred dollars on his store, and the like sum on the goods in said store, for six years from the 17th day of January, 1832, promising, “ according to the provisions of their act of incorporation, to pay the plaintiff the said sum within three months next after said buildings, &rc. should be burnt.” The store and its contents were consumed…

This was an action of replevin for a cow, valued in the writ at twenty-five dollars. The defendant pleaded the general issue and filed a brief statement, alleging that the property w'as in one Anderson Brewer, as whose it was seised for the payment of taxes, he, the defendant, being collector of taxes for the town of Freeport.

This case is fully and clearly stated in the opinion of the Court. and cited the following authorities: Gould’s PI. 20, 315; Co. Litt. 126, a; 3 Black. Com. 314; Lawes on PI. 147, 148; 2 Show. 42; Stra. Rep. 542; 10 Mod. Rep. 112, 192, 210; Gilb. Cas. 138; Gould’s PI. 299, 300, 465 ; Thompson v. Collier, Yelv. 112; 1 Lev. 163; Sir T. Raym. 118; 1 Vmtr. 22; 3 Sound. 211, n. 3; 1 Ld. Raym. 338, 594; 2 Bay’s Rep. 392; 9 Mass. 533. cited 1 Chit. PL 404, n. 1; 1 Johns.

<p>A. by deed, assigned his property to B., C. and D. for the benefit of his creditors. The debts due to the assignees, or either of them, were to be first paid. Held, that by a reasonable construction of the assignment, a debt due to a firm of which B. was a member, was entitled to the same preference as a debt due to B. alone.</p> <p>Held, also, that a debt due to W. C. Co. was secured under a provision to pay W. G. — the latter in fact having no separate demand or claim.</p> <p>Parol evidence was not admitted to show, by the conversation of the parties at the time of executing the instrument, what debts were intended to be secured.</p>

This was an action of covenant brolcen. Plea, non est factum, with a brief statement alleging, 1. That the instrument declared on does not support the plaintiff’s declaration ; said instrument being a joint covenant and not several; and being variant from the declaration. 2. General performance. 3.

Trespass, for the alleged taking and converting to his own use by the defendant, an ox, the property of the plaintiff. The general issue was pleaded and joined. “ The defendant proved, that be met the plaintiff in the street, and paid him $25,50 for an ox, which the plaintiff directed him to go and take.

Assumpsit on a promissory note dated in 1817, by which the defendant promised to pay the plaintiff’s testator $65,85 on demand, with interest. The defendant relied on the statute of limitations in his defence ; and also upon the fact of there having been a material alteration of the note, whereby its validity had been destroyed.

This Bill in equity was brought by the plaintiff as owner of a right in equity, by a purchase at a sheriff’s sale, to redeem the premises, a farm in Falmouth, in this County, from a mortgage originally made to one Royal Lincoln, and subsequently assigned to the defendant.

This was an action of assumpsit, in which the plaintiff declared in a count of general indebitatus assumpsit upon account annexed, and on a special contract set forth in his declaration. The general issue was pleaded and joined, and a brief statement was also filed by the defendant.

This was a writ of entry, brought to recover possession of a part of a dwellinghouse, situated in Lym.an, in this county, and was tried upon the general issue, September term, 1834, before ihe Chief Justice.

This was an action of assumpsit on a decree in chancery in the .State of Maryland, for the payment of money. A statement of the case was agreed on by the parties, and sufficiently appears in the opinion of the Court. contended, that no action at law would lie upon this decree, but that if any could be maintained it should be debt and not assumpsit.

This was an action of assumpsit, founded upon the special agreement of the defendant’s testator, Ichabod Butler, made with the plaintiff and two others. The writ w'as dated January 4th, 1833.

In this case, the trustee disclosed that, on the 21 st of September, 1828, Osgood, the principal defendant, had a suit against one Nathan Elden, pending in the Supreme Judicial Court, in which Messrs. Held: that all set-offs, which the joint debtors, or either of them, had against the principals, should be allowed, whether summoned or not.

This was a writ of entry, brought to recover possession of a lot of land containing about thirty acres. It appeared, on trial, that the land originally belonged to the demandent, Moses Tibbets, and that Elisha Allen, under whom the defendant claimed, in March, 1830, caused an execution ■ to be extended on the demanded premises and tivo other tracts. The whole was appraised at the sum of $115,36.

This was an action of assumpsit, for money had and received, brought to recover back money paid by the plaintiff tq the defendant, as the consideration of certain conveyances made by her, in her capacity of executrix of the last will and testament of Samuel Parlcman, late of Boston, deceased. On trial, the following facts were developed.

This was a writ of entry, in which the demandants counted upon their own seizin within twenty years and a disseisin by the tenant, of one undivided moiety of a certain farm, lying in Water-borough, in this county. The defendant pleaded the general issue, and filed a brief statement under the statute, embracing, substantially, a plea of special non tenure; avering .that he held and occupied as tenant at will, under Elijah Bean, who was tenant of the freehold.

This action, which was brought by the plaintiff to recover her dower in certain lands, grist mill and mill privileges, was submitted to the Court, upon an agreed statement of facts, that part of it relating to the questions raised, being as follows: —■ Elisha Allen, the husband of the demandant, on the 16th day of May, 1831, being then legally seised in fee of the premises, conveyed them by deed of warranty to his son, Francis A. Allen; and on the 11 th of June, following,…

This was a petition for partition under the provisions of stat. of 1821, ch. 37, in which the petitioners stated that they were owners and interested, in certain proportions, with others, in the Province mill privilege and the mill standing thereon ; that, they could not improve their respective parts to advantage, while the same were in common and undivided,” and “ prayed that their said parts might be set off, and assigned to them in severalty.” The respondents, by their…

This was trespass quare clausum fregit, brought to try the title to a lot of land, lying in Wells, in this county, and was submitted to the Court, upon the following agreed statement of facts.

<p>Where a ship, bound from R. to B., was compelled to put into an intermediate port, for the preservation of the ship, cargo, and lives of the crew, the wages and victualling of the crew, from the time of the ship’s bearing away for such intermediate port until her departure therefrom, were held to constitute a proper subject of general average.</p> <p>In an action on a policy of insurance, by the owner of a ship against the underwriters, the adjustment of a general average loss made in a foreign port, is not conclusive upon the owner; but he may show, that items of loss were omitted in such adjustment, which by the laws of this country, where the contract was entered into, should have been included.</p>

This was a writ of entry to recovér seizin and possession of an undivided ninth part of a tract of land lying in Dixfield, in this County, in which the demandants counted upon their own seizin in right of the wife, and upon a disseizin by the tenant. The tenant claimed title under a conveyance in fee and in mortgage by the father of the wife from whom the land descended, and the main question in the cause was, whether the mortgage had been paid and discharged.

This was an action of trover for a blacksmith shop, and was tried upon the general issue, by Parris J. at the last October Term, in this county. It appeared in evidence, that the shop in question, which was the plaintiff’s property, was placed upon land belonging to the heirs of Andrew Craige, deceased, in 1827, under a license or parol permission of Wm. C. Whitney, their agent, on the plaintiff’s agreeing to pay a ground rent of two dollars per annum.

This was a Bill in Equity, an abstract of which, with the answers of the defendants, was as follows, viz: The plaintiff in his bill alleges, that on the 1th of August, A. D. 1826, he contracted with Samuel Haven, Andrew Foster, John Foster, and Thomas Foster, through Wm.

<p>In the grant of a lot of land, it was bounded upon a certain pond — the water, at the time, being raised by artificial means above its natural level. Subsequently, on the obstructions being removed, and the consequent recession of the waters, two and a half acres, between the lines of the lot, became disencumbered and capable of tillage. Held, that the lot was not limited to tho margin of the pond, as it was at the time of the grant, hut that it embraced the two and a half acres.</p> <p>A license to flow the land of another, is not to be presumed in favor of the mill owner, from an uninterrupted use by flowing for twenty years ór more, where it appears that the owner of the land sustained no damageby such' flowing.</p> <p>A special Act of the Legislature, relieving mill owners from a statute obligation to keep a passage open for fish, four months in the year, was held not to affect their liability to the owners of land, for the increased injury to them by flowing.</p>

This was an action of assumpsit, in which the plaintiff claimed contribution of the defendants, upon the ground of general average, alleging that he had a quantity of lime on board the defendant’s schooner Rambler, and that the same was sacrificed for the preservation of the vessel. The general issue was pleaded and joined.

This was an action of assumpsit against the defendant as administrator on the estate of Amos Barrett, and was founded upon the following special agreement of the defendant’s intestate, written on the back of a note for $200, given by Ebenezer H. Barrett to the plaintiff and payable in two years from the 4th day of July, 1828. “ I agree to secure the within note to Bev.

The writ in this case was entered at the May term of this Court, 1830, and was made upon a Common Pleas blank, having the seal of that court impressed thereon. At the September term, 1834, the defendant moved, that the writ be quashed for the want of a seal, and the plaintiff moved for leave to amend by affixing the seal of this Court. contended, that it was now too late for the defendant to make this motion. It should have been done at the return term.

<p>This was an action of trespass for breaking and entering the plaintiff’s close, and cutting down and carrying away a large number of trees. There was also a count de bonis asportatis.</p> <p>The defendants, Benjamin Reed and Samuel D. Reed, pleaded separately ; and claimed title to the locus in quo as heirs at law of Eliphalet J). Reed, deceased, intestate.</p> <p>The plaintiffs shew conveyances of the locus in quo from three of the heirs of the said Eliphalet Reed, including Benjamin Reed, one of the defendants, describing said shares by metes and 'bounds.</p> <p>The plaintiffs also offered to prove that the heirs of said Eliphalet had, ever since the year 1823, occupied their respective shares, according to a division and report of a committee, which had not been returned to, and accepted by, the Judge of Probate. That said Samuel had conveyed his own share by metes ;and bounds conforming to the division aforesaid, and had bought trees of Benjamin, cut upon the locus in quo; and several other acts of said Samuel and the other heirs, indicating their acquiescence in said division.</p> <p>As to Benjamin Reed, the Chief Justice ruled, that he was .estopped by his deed to deny the title of the plaintiffs.</p> <p>He also ruled, that the evidence offered did not make out a ■case against Samuel — 'that the report of the division never having been accepted and recorded, was not effectual to divest the title of Samuel to his share in the locus in quo, and directed the jury to return a verdict of acquital as to him, which was accordingly done.</p> <p>If this ruling was erroneous the verdict was to be set aside and a new trial granted; otherwise, judgment was to be rendered thereon.</p> <p>contended that both defendants were estopped.</p> <p>1. If the provisions of the statute have not been in all respects complied with, in the division of the estate of E. Reed, yet the appointment of a committee on the petition of S. B. Reed &f ah. and his subsequent ratification of their doings, might, for the purposes of justice, have the effect and operation of a submission and award ; which, though it might not operate as a conveyance, would estop a party from setting up a title against the award. Kyd on Awards, 63.</p> <p>2. The defendant, S. B. Reed, is estopped by his silence and submission to the division by the committee. Banes’ Abr. ch. 160, a. 1, 26 ; Fairbanks Sf al. v. Williamson, 7 Greenl. 96 ; 1 Stark, on Ev. 305 ; 2 Stark. Ev. 24; Farley v. Thompson, 15 Mass: 18; Chapman Sf al. v. Searle, Admin’r, 3 Pick. 38.</p> <p>3. lie is estopped by his acceptance of the share assigned him by the committee. Kyd on Awards, 636 ; Calhoun’s Lessee v. Bimning, 4 Balias, 120; 4 Johns. Rep. 202 ; 9 Johns. Rep. 270 ; Varnum v. Abbott, 12 Mass. 476.</p> <p>4. He is estopped by his own deed, conveying his share to John Chapman. 4 Stark. Ev. 30 ; 9 Johns. 92.</p> <p>cited the following authorities, Porter v. Perkins, 5 Mass. 233 ; Porter v. Hill, 9 Mass. 34; Porter v. Pitts, 11 Mass. 125; Bartlett v. Harlow, 12 Mass. 348; Baldwin v. Whiting, 13 Mass. 60 ; Keay v. Goodwin, 16 Mass. 4 ; Rising v. Stannard, 17 Mass. 285; Cutting v. Rockwood, 2 Pick. 443 •, Miller v. Miller, 7 Pick. 133.</p>

This was an action of assumpsit, in which the plaintiff claimed io recover the price of a cargo of limo alleged to have been delivered to one Charles Spaulding on the defendant’s account. The lime was put on board the defendant’s vessel of which Spaulding was Master, but who was sailing the vessel at the time, as the defendant alleged, on shares.

<p>An action to recover'a penalty of fifty dollars for a violation of the statute of 1834, ch. 141, entitled, “ an act for the regulation of innholders, retailers and common victuallers,” was held to be rightly brought in the name of the inhabitants of the town where the offence was committed.</p>

<p>The County Commissioners, under the provisions of stat. ch. 118, sec. 9,10 and 11, are not restricted in the laying out a way, where the selectmen of a town shhll unreasonably refuse, to a way exclusively for the benefit of one or more individuals, but the statute intended to embrace those cases also, where the •^ay should be adjudged to be of general benefit.</p> <p>The requirement of stat. ch. 500, sec. 5, is complied with by the County Commissioners, if they return an accurate plan or description of the way located ; both are not necessary. Held further, that this provision-was intended to apply exclusively to County roads.</p> <p>J8y the provisions of stat. ch. 500, sec. 5, re-enacted in the law of March 9,1832, any one aggrieved by the decision of the County Commissioners in estimating damage's, may make his application for a committee and other proceedings, at any time within one year next after the return shall have been recorded.</p> <p>A just construction of the statutes, ch. 118 and ch. 399, requires1 that the town litigant, and not the county, should be answerable for costs as well as- dama» g'es, where-an individual had appealed from the decision of the County Commissioners ; and his damages had thereupon been increased.</p>

The defendant was indicted on the statute of 1821, ch. 4, § 2, for wilfully and maliciously burning a meeting-house, in the night time, and after conviction, a motion in arrest of judgment was made by his counsel, for causes particularly set forth in the opinion of the Court. and cited the following authorities: Russ, on Crimes, 1677 ; 2 East’s P. C. 621 ; Chitt, Crim. Law, 1104; 3 Inst. 96; 1 Leach, 245; 2 East’s P. C., 1034.

This was an action of trespass, for breaking and entering the ■.plaintifls’ close, treading down the grass, and breaking and destroying a dam on the premises, belonging to the plaintifls. Held: the terms of the acts of the legislature, and the powers which they conferred, and argued at length in support of the position taken, citing Sergeant’s Con. Law, 359 ; Fletcher v. Peck, 6 Cranch, 135; Town of Pawlet v. Clark, 9 Cranch, 535; Vanhorne’s Lessee v. Dórame, 2 Dallas, 304.

This was an action of trespass for breaking and entering the plaintiff’s close, in the town of Clinton, and was tried before the present Chief Justice, October Term, 1834.

This was an action of the case, brought to recover damages for an injury done to the plaintiffs’ bridge, at the head of Tivelve mile pond, by a head of water, raised, as they alleged, by the defendant’s dam at the outlet of the pond.

This was an action of replevin against an officer, for a quantity of bay, and the only question in the cause was, whether the lien created by an attachment of the hay on the original writ, was dissolved; the hay not having been seised on execution within thirty days after rendition of judgment; though the execution was placed by the attaching creditor in the hands of the officer, within that time.

This was an action of trover for a dwelling-house, and was tried before the Chief Justice, upon the general issue, October Term, 1834. The house had been attached on a writ in favor of the plaintiff, and afterward in pursuance of such attachment, taken and sold on execution as the property of Ichabod Patridge, the plaintiff being the purchaser.

Error, to reverse tbe judgment of the Court of Common Pleas, in an action brought by the present defendant against the plaintiffs in error, before a Justice of the Peace, and from thence carried to the Court of Common Pleas, by appeal. The original action was assumpsit for money had and received, and was founded upon a claim of said Bailey, to recover a portion of the amount of certain taxes that had been collected of him, assessed for the benefit of said district.

Replevin for a chesnut colored mare. The facts in the case are sufficiently stated in the opinion of the Court. A verdict was rendered for the plaintiff, subject to be set aside, if this action was improperly brought in the county of Kennebec; otherwise judgment was to be rendered thereon. The action of replevin is local in its nature, and should be brought in the county where the cause of action has accrued. Robinson v. Mead, 7 Mass. 350.

<p>This was a bill in equity, in which the plaintiff set forth a purchase of the defendant of a large quantity of land in the towns of Kilmarnock and La Grange, in the county of Penobscot. That he was induced to purchase, by the false and fraudulent representations of the defendant as to the quality of the land, quantity and quality of the growth upon it, &c., which representations, it was alleged, the defendant well knew to be false. It appeared that the bargain was made with one Smyth, though the defendant gave the deed.</p> <p>At the July term, 1834, in Waldo, the Court made the following order, viz.: “ The Court, having examined the bill and •“ answer and the written testimony by the parties respectfully “ adduced, do order that the parties make up an issue to be tried “ by a jury in the county of Kennebec, at the next October term, ££ submitting it to them to determine — First, whether in the sale “ made by said Herrick to said Bean, which resulted in the cont£ veyance by the said Herrick to the said Bean on the 20th day “ of Oct. 1832, of certain lands in the towns of Kilmarnock and ££ La Grange, fraud was practiced by said Herrick upon said ££ Bean. Secondly, if so, to what amount the said Bean has ££ been injured thereby. And it is further ordered that in the trial to “ be had as aforesaid, there be submitted to the jury the following ££ testimony and none other, viz.: the bill and answer, with the ££ plan or plans and the written description of the land, made by ££ Herrick, and used or referred to at the time of the sale, the ££ depositions already taken, together with such other depositions as £i may be taken by the parties respectively on or before the first “ day of September next: in addition to which, each party is at lib- “ erty to bring two witnesses to be examined at the trial viva “ voce, together with any other written evidence pertinent to the “ issue.”</p> <p>At the October term, the case was submitted to the jury upon the issue and upon the evidence directed by the Court.</p> <p>The Chief Justice, who presided, was requested by the defendant’s counsel to instruct the jury, that the defendant was not answerable for any misrepresentations he might have made as to the quality, condition or value of the lots, which the plaintiff might have seen by going upon them. • That the plaintiff should have examined for himself or taken security that the lots were as represented ; and the title to them having passed by the defendant’s deed to the plaintiff, the latter has no remedy, except upon the deed. That the defendant was not liable for any representations made by him, unless proved to be false, and known by him to be so when made, and made with intent to defraud the plaintiff. That if the defendant believed his representations to be true when made, although not true in fact, he was not answerable. That the defendant was not liable, if the jury believed the land was fairly sold by the defendant to Smyth, and that the deed was given by the defendant to the plaintiff, in execution of tbe contract between Smyth and the- plaintiff.</p> <p>Upon these points the Judge withheld the instructions requested, except as hereafter stated ; but he instructed the jury that ¡as the defendant knew the plaintiff was to purchase without seeing the land, which was one hundred miles distant from tbe place of sale, and from the residence of the plaintiff, if the defendant represented the land, or any part of it, to be heavily timbered ; that, the growth upon it, or any part of it, remained green ; that the land or any part of it, was not injured, or but little injured by fire; or that the land, or any. part of it, was traversed with roads, when he knew that such were not the facts; or if he represented the land, or any part of it, to be good for farming when he knew it to be bog, or worthless for that purpose, and either of these representations was made with intent that the plaintiff, if he should become the purchaser, should be defrauded, and the plaintiff was thereby defrauded, the issue was maintained on the part of the plaintiff. But that it was not maintained by proof of an over-estimate by the defendant, of the value, or by a false estimate of the quality of the land, except as before stated; nor if the defendant believed the representations to be true. And that upon the foregoing principles, the issue would be sustained for the plaintiff, although the defendant had sold to Smyth if he aided in defrauding the plaintiff.</p> <p>The jury returned a verdict for the plaintiff. If the instructions requested and withheld, ought to have been given ; or those which were given, were erroneous, the verdict was to be set aside and a new trial granted; otherwise it was to stand for such decree, as the equity of the case might require.</p> <p>argued in support of the positions taken at the trial, citing the following authorities: Sugden’s Vendors, 2, 8, 195, 200 ; 2 Kent’s Com. 428, note New-land on Coni. 357; 2 Dane’s Abr. 560, 562; Roswell v. Vaughan, Cro. Jas, 196 ; Powell V- Ciarle, 5 Mass. 355 ¿ Dyer Sf al. v. Lewis, 7 Mass. 284; Cro. Jas. 386 ; 2 Dane’s Abr. 543; Harvey v. Young, Yelv. 2) ; 2 Dane’s Abr. 549, 558.</p> <p>cited Sugden’s Vendors, 197 ; 1 Mad. 208, 209, 212 ; 5 Johns. Ch. R. 174 ; Broderick v. Broderick, 1 P. W. 239; 5 Mum,. R. 183; Newland on Con. 361; 1 Brown’s Ch. Cas. 141 ; Bliss v. Thompson, 4 Mass. 488; Morton v. Chandler, 8 Greenl. 9 ; Apthorpe v. Comstock, Hopk. 143; Irving v. Humphrey, ib. 284 ; Livingston v. The Peru Iron Co. 2 Paige’s R. 390 ; 3 Paige, 94.</p>

This was an action of debt, brought to recover the amount of damages that had been awarded to the plaintiff by a committee appointed by the Court of Sessions, for the location of a way, in part over the plaintiff’s land, and was submitted for the decision of the court, upon the following agreed statement of facts.

This was replevin for a carriage and harness, which one Robert M. N. Smyth purchased of the defendant, in November, 1832, paying therefor in two lots of land in Kilmarnock, and sold to the plaintiff in thé following December.

This was an. action of trover - for the conversion of eertain goods, which had been taken as the property of one O’Reilly, by the defendant, an- officer having legal process against him.

<p>Error to reverse the judgment of a justice of tho peace, in an action of debt, brought by the clerk of the Augusta Light Infantry against the plaintiff in error, to recover a penalty for neglect to appear at a training of said company, and of which he was alleged to be a member.</p> <p>By the bill of exceptions sent up it appeared, that, to prove the enlistment of the plaintiff in error, the clerk introduced a paper bearing the names of a number of persons, and among them that of the present plaintiff, admitted to have been signed by him March 5, 1834, under the following caption, viz : “ The under- “ signed do hereby voluntarily enroll themselves as members of “ the Augusta Light Infantry, and agree to be governed by its “ laws and regulations.” The introduction of this paper was objected to by the counsel for the original defendant, but was allowed by the magistrate.</p> <p>As additional evidence of enlistment and enrollment, the clerk introduced a book in the common printed form, running as follows, viz.: “ Record of the Roll of the company of Light In- “ fantry in the first Regiment, first Brigade, and second Division “ of the Militia under the command of William II. Chisam, as corrected on the first Tuesday of May, 1834.” After which followed seventy-five names, and among them that of the original defendant, and to this succeeded the attestation of the clerk. After the signature of the clerk followed sundry other names of persons, purporting to have enlisted after the said first Tuesday of May, 1834, the dates of whose enlistments were set against their names. The defendant contended that this roll was not sufficient evidence of enlistment, as it did not appear when the defendant enlisted — ■ that the company roll of enlistments should be produced, and that this should contain in the proper column the date of enlistment. But the justice ruled that this shew the defendant duly enrolled on the first Tuesday of May, and his signature to the enlistment roll, shew the time of his enlistment to be the 5th of March preceding.</p> <p>It appeared that the notice of enlistments, given by the commanding officer of said company to the commanding officer of the standing company, which contained the defendant’s name, did not exhibit the times of the several enlistments, nor was it given to the commanding officer of the standing company within the time required by law. The clerk, thereupon, introduced evidence to show that the present plaintiff was laboring under a permanent disability, to wit, a rupture, and contended, that not being liable to be enrolled, or to do duty in the standing company, no notice to the commanding officer thereof was necessary; and so the magistrate ruled.</p> <p>To all the foregoing rulings and decisions of the justice, the plaintiff in error excepted, and brought this writ to reverse the judgment rendered by him.</p> <p>The enlistment was not duly proved. It should have appeared by the company roll, containing an entry of the time of his enlistment or enrollment. Sawlel v. Davis, 5 Greenl. 439.</p> <p>The first paper introduced does not purport to be, nor is it pretended by the counsel on the other side, that it is a company roll. The record, next introduced, is defective, inasmuch as the time of enlistment does not appear thereon.</p> <p>2. The enlistment, if one be proved, is void, because the commanding officer of this company did not give notice in writing to the commanding officer of the standing company, of the enlistments, according to the requirements of law. The notice was defective in not stating the respective times of the enlistments, and was entirely nugatory, inasmuch as it was not furnished within the time required by the statute.</p> <p>3. This positive requisition of the statute is not affected by reason of any permanent disability in the person enlisting. The statute makes no such exceptions ; but expressly declares that the enlistment shall be void, unless such notice be given as is therein prescribed. If the position taken by the other side be sustained, it as well might be said, if the maker of a note is insolvent, a demand upon him previous to notice to the endorser is unnecessary, because such a demand would be of no avail. But it has been repeatedly decided otherwise. Bond &f al. v. Farnham, 5 Mass. 170 ; Crossen v. Hutchinson, 9 Mass. 205 ; Sanford v. Dillaway, 10 Mass. 52; Farnum v. Fowle, 12 Mass. 89; Woodbridge &f al. v. Bridgham al. 13 Mass. 556.</p> <p>4. But it was not competent for the clerk to prove the disability of the original defendant. It was a personal privilege, of which he alone could avail himself. But so far from doing this, he had represented himself as able-bodied, by the performance of military duty.</p> <p>5. The evidence was incompetent to prove the fact, if the clerk had a right to prove it.</p> <p>and was sustained in his positions by the opinion of the Court. He also cited the following authorities: Commonwealth v. Smith, 14 Mass. 374; Pitts v. Weston, 2 Greenl. 349; Hume v. Vance, 7 Greenl. 158 ; 2 Esp. N. P. 688.</p>

This was an action of debt. The writ contained several counts, the principal one being founded upon a contract under seal, executed by the plaintiff in favor of the defendants, in which the plaintiff covenanted and agreed to build a school-house according to certain stipulations therein contained. The plaintiff read this contract in evidence, after having called it out of the hands of one of the defendants for that purpose.

This was an action of the case upon the statute, brought to recover damages for an injury sustained by the plaintiff in his horse and sleigh in travelling over a road in the town of Moscow, on the 5th day of March, 1834, which road the plaintiff alleged, the defendants were bound to keep in repair.

This was an action of debt on a judgment recovered against the defendant by the plaintiff’s testator, and which had been nominally satisfied by a levy of the execution on real estate, the title to one half of which, turned out not to be in Tike, and from which the plaintiff's testator had been evicted by one having an elder and a better title.

<p>In an action for breach of promise of marriage, the opinion of witnesses not possessing any professional or peculiar skill, that the plaintiff was once in a state of pregnancy, was held to be inadmissible.</p> <p>Evidence also that she was once reputed to have been in a state of pregnancy and endeavored to procure an-abortion, held to be inadmissible.</p> <p>Certain letters from the plaintiff to the defendant held not to amount to a discharge of the latter from his promise of marriage.</p> <p>The Court refused to disturb a verdict in favor of the plaintiff for $1200, on the ground of its being excessive; the defendant’s property being estimated by the witnesses at from $1000 to $5000.</p>

This was a writ of right, brought to recover lot No. 57, in the town of Athens, in which the demandant counted upon his own seizin within twenty years next before the commencement of the action. The general issue was pleaded and joined. The demandant claimed under the proprietors of Athens, and the tenant under David Copp, one of the members of said propriety ; to whom, with seven others, his associates, the trustees of Berwick Academy, in 1799, had conveyed said township.

Tins was an action of covenant broken, in which the plaintiff alleged, that the defendant, on the 19th of March, 1829, by an instrument under his hand and seal, covenanted that one Seth Bean should well and faithfully serve the plaintiff for the term of three years as an apprentice at the trade of a house-carpenter : and averred a breach. The breach relied on was the refusal of the apprentice to go with the plaintiff to Mirimachi in the Province of New Brunswick.

Assumpsit on a promissory note. On the evidence stated in the opinion of the Court, the defendants were defaulted by consent. If, in the opinion of the whole Court, the action was mainitainable, judgment was to he rendered on the default; otherwise it was to be taken off and a nonsuit entered. 'The note, bond, and resolve constitute one transaction — and 'all the conditions must be complied with before the note can be ■collected.

<p>This was a petition for partition, filed at the June term of this Court, 1833, in which the petitioner alleged that he-1 was seised in fee simple and as tenant in common, of an undivided half part of a tract of land in Bangor, bounded as follows : Beginning at a stake and stone on Maine street, thence running south 33° 30' west, 32 rods to the line of lot No. 8, thence north 45° west, 42 rods, thence north 33° 30' east, 32 rods, thence south 45° east, 42 rods to the first bound ,• that he held said tract in common with persons unknown to the petitioner, and prayed partition thereof.</p> <p>BarTcer, one of the respondents, alleged in his plea, that he was sole seised of the northeasterly half of said tract, separated from the southwesterly half thereof, by a line drawn from the middle of the end of said tract, on the county road or Maine street, northwest to the middle of the opposite end of said tract; and traversed the seizin of the petitioner, as to said northeasterly half; arid thereupon issue was joined.</p> <p>Howe and Pope, the other respondents, alleged that they were sole seised of the residue of said tract, to wit, the southwesterly half thereof; traversed the seizin of the petitioner as to said southwesterly half, and thereupon issue was joined with them.</p> <p>The petitioner, to support these issues on his part, introduced a deed, dated June 28,1803, conveying, for a consideration of $400, the said tract of which partition was claimed, to the petitioner and said Barker, as tenants in common. The southwesterly line of said tract, was, in this deed, described as running from the county road on William Hammond’s line, to a stake and stone, one rod back of a small stream, back of the old county road.</p> <p>The respondents, to maintain the issues on their part, introduced a deed, dated Sept. 14, 1812, from the petitioner, to Henry Rice, conveying in fee, and in mortgage, lot numbered 100 in Bangor, and one undivided sixth part of the premises of which partition is claimed, securing the payment of two notes of even date, each for $275, payable with interest, one in nine, the other in twelve months.</p> <p>Also a deed from the petitioner, to one James Thom, dated Feb. 12, 1813, purporting to convey in fee, and in mortgage, and with the usual covenants of seizin, and warranty, one undivided third part of a certain lot of land, situate in Bangor, containing eight acres more or less, bounded as follows ; beginning at a post on the county road leading from Kenduskeag bridge to Hampden; thence running southwesterly on said road thirty-two rods to land owned by Zadoc Davis, then north 48°, west, fifty rods to a stake one rod beyond a small stream; thence northeasterly parellel with the road, 32 rods to a stake ; thence south 42", east, fifty rods to the bound first mentioned; securing payment of a judgment, on which was then due from said Call, $381,50, on or before Feb. 12, 1814.</p> <p>On the 9th of April, 1814, Rice, by his attorney, Samuel E. Dutton, Esq. duly appointed and authorised, and having with him said mortgage deed from Call to Rice, entered upon the lot of land, described in said mortgage deed, and of which partition was claimed, in presence of two witnesses, and took possession of the same, for the purpose, as was then stated by said attorney, in the presence and hearing of said witnesses, of foreclosing said Call’s equity of redemption in said mortgage.</p> <p>Rice conveyed his interest in said undivided sixth part of said lot to Zadoc Davis, by deed, dated Feb. 5, 1822.</p> <p>On the 24th of May, 1822, James Thom, by his attorney, Jacob Adams, duly appointed and authorised, and having with him said mortgage deed from Call to Thorn, entered upon the lot of land described in said mortgage deed to Thom, in presence oí said Davis and three other witnesses, and took possession of the same, for the purpose, as was then stated by said attorney, in the presence and hearing of said witnesses, of foreclosing said CalVs equity of redemption in said mortgage, and a certificate thereof^ subscribed by said four witnesses, was then annexed to said mortgage deed.</p> <p>On the back of said mortgage deed, by assignment dated May 13, 1823, said Thom conveyed to said Zadoc Davis, his interest in said mortgaged estate and judgment.</p> <p>The premises, on the 9th of April, 1814, were unfenced and unoccupied, and continued so for four or five years afterwards. On the 24th of May, 1822, said Davis, having previously hauled a house on to the premises, then lived on and occupied a part thereof ; and in 1828, [Davis and Barker having, with the consent of the owners of the adjoining land, set down stone posts at the four corners of the tract of land of which partition is prayed, after a survey by deed of partition dated Sept. 10,1828, between said Davis and several others then claiming under him, of one part, (all of whose titles to said mortgaged premises had subsequently been conveyed to said Howe and Pope) and said Barker of the other part, the same was divided in manner stated in the pleas. The parties to said indenture, thereby covenanting and agreeing each with the other, to hold in severalty ; the said Barker the said northeasterly half thereof; and the said Davis and others and their assigns the southwesterly half thereof; after which the respondents and the parties to said indenture had occupied, improved and fenced tbe same in severalty, in manner stipulated in said indenture.</p> <p>It was agreed, that on the 17th of August, 1818, an auctioneer made sale of said estate, mortgaged to Rice, at public auction at Bangor, by direction of Nice’s attorney, and the same was bid off on a credit of two and four months, for one hundred and five dollars. Of this sale, previous notice was given by publication, three weeks successively, in a newspaper then printed in Bangor, the last publication being on the 6th of August, 1818, and by posting advertisements thereof in Bangor, and the two adjoining towns, Orono and Uampdert.</p> <p>At the November term of the Supreme Judicial Court at Boston, in the year 1818, a verdict was returned for said Nice against Call, in an action there pending apon the two notes secured by said mortgage to Nice, for $463,12 debt. Previous to the trial, Call had taken depositions to be used therein, tending to shew, what be set up as a defence to said aetion, that the estate mortgaged to Nice was worth double the amount secured by the mortgage ; and that Nice having taken the land had thereby received full satisfaction for his debt. And after said trial, Call frequently acknowledged and complained that Nice had taken the land mortgaged, and that in said trial the amount allowed him was not its value, but only the proceeds of .the sale aforesaid.</p> <p>In 1826, an execution in favor of Nice, against Call, issued on a judgment recovered in Cumberland county, in 1823, for $575,85, the balance due on the judgment rendered in Boston, on said verdict, was settled by Call paying said Nice, in full therefor, $275.</p> <p>No part of the judgment, secured by Call's mortgage to Thom., bad been paid.</p> <p>Calls residence was in Bangor, after 1812, except about two years residence in Ohio, between the years 1817 and 1820; and until 1834, his residence was within half a mile of the land in controversy, except as above.</p> <p>There was no evidence, except as above, that .the petitioner bad notice of either of said alleged entries for foreclosure, or of said auction sale ; or that he was present at either, or that he had ever been in actual occupation of the mortgaged estate, after said two mortgages were given, said land being in 1812, and for some years afterwards, unfeuced and unoccupied, Davis liad liyed on and occupied the southwesterly half of said premises, after the 24th of May, 1822.</p> <p>Upon this statement of facts, it was submitted to the Court to decide whether the petitioner could maintain his petition for partition of any part or all of the described premises; it being agreed that the Court might infer any facts which it would be competent for a jury to infer, and judgment was to be rendered according to the opinion of the Court.</p> <p>1. Partition may be had, though the petitioner be out of possession, if the right of entry remain. Baylies ail. v. Bussey, 5 Greenl. 157 ; Brougham v. Clapp, 5 Cowan, 298.</p> <p>2. So partition may be had, not only of the fee but of any lesser portion of the fee. As a lessee for years, Baring v. Nash, 1 V. &f B. 553; Wells v. Slade, 6 Fes. 498; Mussey v. San-born, 15 Mass. 155. So as to the owners of the use merely, Mitchell v. Starbuck, 10 Mass. 5. The interest of the owners of an equity is divisible : 7 Johns. Ch. Mep. 140; 17 Fes. 542; 1 Hopk. 505 ; 1 Paige, 469 ; Colton v. Smith, 11 Pick. 315.</p> <p>3. There is a subsisting equity in the petitioner, no notice having been given to him of any entry to foreclose. An entry without notice is insufficient. Pomeroy v. Winship, 12 Mass. 520; Scott v. McFarland, 13 Mass. 313 : Thayer v. Smith, 17 Mass. 431 ; Gibson v. Crehore, 5 Pick. 151; Hadley et ux. v. Houghton, 7 Pick. 29 ; 4 Kent’s Com. 135, (2d ed.) ; Greene v. Kemp, 13 Mass. 519.</p> <p>No notice can be implied from the possession, by hauling on a house and occupying it in 1822. Possession was not then taken in the presence of two witnesses, and with the avowed intention of foreclosing the mortgage. If it were otherwise, it is denied that implied notice is sufficient; the courts have never gone thus far.</p> <p>But the petitioner is entitled to partition in the gore, if no farther. The parties must be bound by the language of their deeds. By these it appears that less was mortgaged in one than in the other, leaving the petitioner’s title clear to the difference.</p> <p>cited the following authorities : Hill v. Payson fy al. 3 Mass. 559; Parsons v. Wells Sf als. 17 Mass. 419; Pomeroy v. Winship, 12 Mass. 514; Newhall &/■ al. v. Wright, 3 Mass. 138 ; Erskine v. Townsend, 2 Mass. 493 ; 4 Dane’s Ahr. 185, 888 ; Thayer v. Smith, 17 Mass. 431; 3 Johns. Ch. Cas. 145 ; Pose v. Handy, 2 Greenl. 322 ; Purrington al. v. Sedgley ¿y al. 4 Greenl. 213; Cate v. Thayer, 3 Greenl. 71.</p>

Trover for a horse. On trial it was admitted, that the horse was originally the property of one Hasty; that the plaintiff, being a deputy sheriff, on the 12th of February, 1833, attached said horse on divers writs against Hasty, and suffered it to remain in his possession, taking a receipt from him and one Farrington, in which they promised to re-deliver the horse on demand.

This was an action of debt on bond. The defendant having craved oyer, pleaded, non est factum, and filed a brief statement alleging general performance. To which the plaintiff replied, setting out as a breach, the non delivery of the deed mentioned in the bond declared on.

Assumpsit on a promissory note for $67 26, payable at the maker’s house, on a particular day. There was an averment in the writ of a presentment according to the terms of the note, but no evidence was offered in support of it, and Parris J. ruled that none was necessary.

<p>This was trover for a yoke of oxen, and was submitted for the decision of the Court upon certain agreed facts, which are stated in the opinion of the Court. A nonsuit or default was to be entered, according to the opinion of the Court.</p> <p>cited Woodruff v. Halsey &f al., 8 Pick. 333; Brooks v. Powers, 15 Mass. 244; Badlam v. Tucker, 1 Pick. 389 ; Haskell &/■ ais. v. Greely, 3 Geenl. 425; Smith v. Hennie 6 Pick. 262; Sawyer v. Shaw, &f als. 9 Greenl. 47 ; Hunt v. Whitaker, 1 Fairf. 310.</p> <p>The words in the contract merely describe a lien which the law itself prescribes, and confer no greater rights than would have existed without the written contract. And although in a sale of this kind, the vendor has a lien for the price while the property remains in his hands,/ yet it is otherwise when he permits the property to pass out of his possession. Yelv. 67; 6 Chan. Cas. 437; Chapman &/■ al. v. Searle, 3 Pick. 38; Parks v. Hall, 2 Pick. 206; 1 Hall’s Hep. 155; Gallop v. Newman 8f al. 7 Pick. 283.</p> <p>He argued from the terms of the contract, and from the circumstances in the case, that it must have been understood by the parties, that the property should go into the hands of Norton, and remain until a forfeiture of the condition occurred by nonpayment of the price ; in which case, the action, it was insisted, was prematurely brought. Wheeler v. Train, 3 Pick. 258; Wyman v. Dorr, 3 Greenl. 183.</p> <p>The law is well settled, that if one obtain goods by false and fraudulent pretences, he acquires no title as against his vendor, though he may pass the property to' an innocent and bona fide purchaser. 8 Cowan, 238 ; 7 Taunt. 62; 2 Caines, 182; 5 T. Rep. 175 ; Seaver v. Dingley, 4 Greenl. 306. By a much stonger reason should it be so, where there is no fraud, but a conditional sale merely. That no distinction in favor of the former class of cases should obtain, cite Hussey v. Thornton, 4 Mass. 405; Harris v. Smith, 3 Serg. &f Rawle, 20; 2 Paige’s Ch. R. 769; 8 Cowan, 238; 3 Caines, 132; 5 Term R. 175; 2 Paige R. 172; 1 Páige R. 315.</p>

This was a complaint under the statute of 1821, ch. 45, against the defendants for flowing the complainant’s lands by means of the erection and continuance of a certain dam and mills. Commissioners were appointed by the court, who, upon a view of the premises, reported the yearly damages at $12. The defendants claimed a trial by jury, and offered evidence to impeach the report of the commissioners. The jury awarded by their verdict the sum of $6,87, as the yearly damages.

This was a writ of entry, in which the demandant counted upon his own seizin within twenty years, and a disseizin done by tho defendant, and was tried upon the general issue by Emery J. October term, 1834. Tho plaintiff, to prove his title, read a deed from John Barker and Stephen S. Crosby, to Joseph H. Bead and Abraham Bead, dated Oct. 20th, 1819 ; and a mortgage from the two latter, back to Barker and Crosby, of the same date, to secure the payment of $350.

This was an action of assumpsit, upon the following promise or memorandum in writing, viz. “ Whereas Artemas Warren and “ Son are hauling lumber for Haicil Delano, the present season, “ I hereby agree to pay said Warrens their wages of twenty-eight “ dollars per month, for a team of four oxen and driver, out of “ the nett proceeds of said lumber, when sold by me. “ Samuel Thacher, Jr. “ February 4, 1832.” It was admitted that the plaintiffs worked two months, commencing Dec.…

<p>Where A. and others, as directors of a proprietary, acting within the scope of their authority, eontracteá with one, under their own seals, to pay him a stipulated price for certain materials to be furnished by him, it was holden that when furnished, he might maintain assumpsit against the proprietary for the price.</p> <p>Where the directors of a corporation have power to bind it by their contracts, that power may be exercised by a majority.</p> <p>It is not necessary that all the doings of such directors should be entered on . their records; but the corporation will be bound by any verbal order or direction, in which a majority of such directors concurred, in relation to any business deputed to them.</p> <p>A provision in the act incorporating certain individuals for the purpose of erecting a house for public accommodation, admitting the members as witnesses in all cases in which said corporation should be a party, was held not to be clearly a violation of the constitution.</p> <p>This objection could not be made, however, by one named in the act of incorporation, and who subsequently expressed his assent by taking stock.</p>

This was an indictment against the defendant for a nuisance, to wit, for erecting and continuing across the Penobscot river, a certain dam, whereby the free navigation of the river was obstructed. The defendants justified under the authority of an act of the Legislature, incorporating “ The Penobscot Mill Dam Company,” and as riparian proprietors.

This was replevin for a yoke of oxen, and was tried upon the general issue and a brief statement of the defendant alleging property in himself. The defendant proved that he put the oxen into the possession of one Waterman, under an agreement to be returned when called for. The plaintiff claimed under a purchase from Waterman, whom he offered as a witness, and who was permitted to testify, subject to the opinion of the whole Court upon his admissibility.

This was a writ of entry, brought to recover possession of 100 acres of land, in which the demandants counted upon their own seizin and a disseizin done by the tenant. The tenant pleaded the general issue, and put in a claim for betterments, under the provisions of the statute of 1821, ch. 47.

<p>The statute of 3831, eh. 501, sec. 2, by which the requirements before then existing, in regard to the evidence to be adduced by a purchaser in support of a title derived under a collector’s sale of non-resident proprietors’ lands, for taxes, are much relaxed, was held to operate upon sales made subsequently to the passage of the law, though the taxes were assessed before.</p> <p>The provision in the stat. of 1826, ch. 377, sec. 8, that the notice of the sale of such lands “ to be published in the public newspapers three weeks successively, shall be published three months prior to the time of such sale,” was construed to mean, that the three weeks should be completed three months prior to the sale, and not that the publication should be three successive months.</p> <p>But where the law required such publication to be in the newspaper of the public printer to the Stale, and before the last publication, such paper had ceased to be the state paper, the notice was held to be insufficient.</p>

Assumpsit upon the following note of hand, viz. “Bangor, April 14, 1828. “For value received, I promise to pay the treasurer of the town “ of Dutton thirty dollars in six months, and interest. “ Joseph Kendrick.” There was also an account annexed to the writ,, in which the defendant was charged with stumpage on the ministerial and school lands in Dutton, for the years 1827 and 1828. The writ also contained the usual money counts.

This action, which was assumpsit to recover the amount of sundry assessments on the defendant’s shares in the Banger House Proprietary, was submitted for the decision of the Court upon the following agreed statement of facts. In January, 1833, the defendant was an owner in common and undivided, with divers other persons, in lots No. 6 and 8, in Bangor, he owning one one hundredth part.

This was an action of covenant broken, in which the plaintiff declared upon a breach of the covenant of seizin in the defendant’s deed, purporting to convey to tbe plaintiff a certain lot of land in Bangor.

<p>A. gave B. and others, a bond, conditioned for the conveyance of a township of land, reserving the right to take off 3,000,000 feet of board logs, without limitation as to time; and subsequently made a conveyance to them without condition, but still went on to cut the 3,000.000 feel of timber. While he was doing this, B. sold his interest in the township, taking from the purchasers a writing acknowledging that they took the land, “ subject to a permit from former owners to A. to cut and obtain 3,000,000 feet of timber on said township the present year,” and agreeing that A. might take without hindrance from them. Heidi that A.? as between him and said purchasers, was entitled to take the 3,000,000 feet of timber, and was not limited in taking it off to the year or winter succeeding the making of the contract.</p> <p>Parol evidence, or contracts in writing between other parties, were not admissible, to show the understanding of the parties in regard to the meaning of the bond or subsequent writing.</p>

This was an action of trespass for taking and carrying away a horse, alleged to be the property of the plaintiffs, who claimed him under a sale from one William Byrne, to secure them for a liability entered into for him.

<p>This was a writ of entry, brought to foreclose a mortgage, and was tried upon the general issue, and a brief statement, in substance a disclaimer.</p> <p>The demandants read a mortgage deed from the tenant to them, dated June 5, 1S27, conveying six thousand acres of land, in common and undivided, in township No. 3, second range, north of the Penobscot Bingham purchase, referring to Nathaniel Ingersoll’s deed to him of the same. Ingersoll’s deed contained a reservation of lots, marked as settlers’ lots, on John Webber’s plan. It was also proved that the tenant lived on lot No. 11, in the 5th range in said township, at the time of the commencement of the action.</p> <p>The tenant read a deed from himself to one Joseph Malleti, of all his interest in the township, dated May 31, 1830, and recorded the 4th of June following. And also the record of the proprietors of said township ; by which it appeared that the proprietors of said township, on the 6th of April, 1828, made application to a Justice of the Peace to call a meeting of said proprietors, for the purpose of organizing as a propriety under the provisions of statute of 1821, ch. 43, and for other purposes therein specified. This application was annexed to the warrant calling the meeting, and was referred to in the warrant as specifying the purposes of the meeting.</p> <p>There was also a division of lots among the proprietors; lot No. 11, in the 5th range, being set off and assigned as a settler’s lot.</p> <p>Several questions arose out of these proceedings, as to their regularity and effect, which are particularly stated, as well as the positions of counsel, in the opinion of the Court.</p> <p>A default was entered by consent, which was to be taken off and a new trial granted, if, in the opinion of the whole Court, upon this evidence, the defence was made out.</p> <p>cited the following authorities : Crosby v. Allyn, 5 Greenl. 453; Hayward, v. Carby, 1 Paige, 471 ; Jackson v. Peirce, 10 Johns. 414 ; Wilkinson v. Parrish, 3 Paige, 653; Cheesman v. Thom, 1 Edward’s Ch. Rep. 629; Wills v. Slade, 6 Ves. Jr. 498.</p> <p>cited Keith v. Swan, 11 Mass. 216 ; Stearns on Real Actions, (2d ed.) 234 ; Olney v. Adams if al. 7 Pick. 31; Folger v. Mitchell, 3 Pick. 396 ; Chamberlain v. Bussey, 5 Greenl. 164 ; Tuttle v. Carey, 7 Greenl. 426; Worthington if al. v. Sylyer if al. 4 Mass. 205.</p>

<p>This was an action of trespass, for breaking and entering the plaintiff’s close in Bangor, and taking down a certain building thereon standing.</p> <p>The defendants justified under an ordinance of the City government, prohibiting the erection of wooden buddings within certain limits in said City; one of the defendants being Street Commissioner, and the other City Marshall.</p> <p>It was admitted that, at the time of the passing of said ordinance, said building, which was built of wood, stood on a lot within the limits described in the ordinance; and that a few days before it was taken down by the defendants, the plaintiff had removed it to another lot within the same inhibited district.</p> <p>The Act incorporating the city of Bangor, conferred authority " to ordain and establish such acts, laws, and regulations, not inconsistent with the constitution and laws of this State, as shall be needful to the good order of said body politic.”</p> <p>The plaintiff’s counsel hereupon contended, that said ordinance was illegal, unconstitutional, and void, as it was not within the legitimate powers conferred by the charter; and also that the removal of this building to the lot where it was taken down by the defendants, was not a violation of said ordinance, not being an erection, within the plain and obvious meaning of that term, and that the defendants were therefore not justified.</p> <p>But for the purpose of settling the damages, Parris J. ruled, pro forma, these points in favor of the plaintiff, and thereupon the jury returned a verdict against the defendants for $154,07, which was to be set aside and a nonsuit entered, if, in the opinion of the whole Court, the defendants were justified under said ordinance ; otherwise judgment was to be rendered thereon.</p> <p>and cited Maine Stat. ch. 24, sec. 1; Vanderlelt v. Adams, 7 Cowen, 349; Stuyvesant v. The Mayor, &fc. of New York, 7 Cowen, 588; Baker v. Boston, 12 Pick. 184; Village of Buffalo v. Webster, 10 Wendell, 99.</p> <p>argued at length in support of the positions taken at the trial, replying also to the authorities cited on the other side.</p>

<p>This was an action on the case for diverting water from the plaintiff’s mill, and was tried upon the general issue, before Parris J., at the last October term in this county.</p> <p>On trial it appeared, that the plaintiff was the owner of a saw mill on one side of Martin stream; and that the defendant was the owner of a grist mill on the other side of the same stream, with a common dam to raise a head of water for the use of both mills. Both parties derived title from Isaiah Thomas. The first conveyance was from Thomas to one Means, the defendant’s grantor, and was of a grist mill and “ also the privilege of using and improving water from the mill pond above said mill dam for the use of the grist mill forever; said grist mill to draw' water from said mill pond in preference to any other mill or machinery now erected, or which may be hereafter erected, taking water from said mill pond.” The grist mill, conveyed by Thomas, had been altered and the floom extended in width by the defendant’s grant- or — and the defendant had also made alterations by inserting an additional set of stones, and a cleanser, and in several other particulars.</p> <p>The plaintiff introduced evidence, tending to show that the defendant, in consequence of alterations made by himself, had withdrawn from the dam more water than he was entitled to.</p> <p>He also introduced evidence (the defendant’s counsel objecting,) tending to show that the defendant had withdrawn from the dam more water than he was entitled to by reason of the enlargement of the flume and other alterations made by Means, the defendant’s grantor, — more water being expended in propelling the mill than was required for the use of the mill conveyed by Thomas.</p> <p>Upon the question of damages, the Judge instructed the jury, that if they should find that the defendant had withdrawn from the pond, water belonging to the plaintiff and necessary for propelling his mill, he was entitled to nominal damages, even if he had failed to prove actual damages ; and if he had proved actual damages, he would be entitled to their verdict for that amount. But if they found that the defendant had withdrawn no more water than he was entitled to, their verdict should be for him. The jury returned a verdict for the plaintiff for nominal damages only. And such judgment, it was agreed, should be rendered, as in the opinion of the whole Court, would be proper upon the facts reported.</p> <p>contended that no other right could be acquired in flowing water than such as was acquired for some beneficial purpose by actual appropriation; and consequently, that no action could be maintained for any appropriation of that water which did not injure the exercise of that right — and cited Williams v. Morland, 2 Barn, Cres. 910; Blanchard &f al. v. Baker, 7 Greenl. 253. And though a contrary opinion seems to he intimated by Angelí in his Treatise on Watercourses, p. 17, yet it will be found on examination that his opinion is not supported by the cases which he cites.</p> <p>2. The verdict does not find whether the diversion of the water was caused by the erections of the defendant himself or of Means, his grantor. If the evidence therefore as to the latter was inadmissible the verdict should not stand. That it was not, he cited 3 Stark. 1527, 1531, 1563, 1564, 1583; 1 Chitt. PI. 380; JDoane v. Badger, 12 Mass. 65; Bull. N. P. 232; Baxter v. M. I. Co. 6 Mass. 207 ; jRolinson v. Jones 8 Mass. 536 ; Smith v. Whitney, 4 Mass. 445 ; La-rned v. Buffington, 3 Mass. 552; Langdon v. Potter, 11 Mass. 313.</p> <p>cited the following authorities : Rich v. Pen field, 1 Wend. 380 ; Whittemore v. Gutter, 1 Gall. 476 ; Hatch v. Dwight, 17 Mass. 289.</p>

<p>In a suit against two defendants, one of them was defaulted; after which his deposition was taken by the other, who defended on the ground of minority, and offered it as evidence in the case. Held,, that it was inadmissible.</p>

Debt upon a jail bond. The defence was, that the principal obligor had taken the poor debtor’s oath before two Justices of the Peace and of the quorum, and had been discharged; and the proper record was introduced to show this fact. The record also recited, that upon examination by the Justices, of the return of the officer upon the notification previously issued to the creditor, it appeared to have been duly served.

This was an action of assumpsit, in which the plaintiff sought to recover a sum of money, alleged to have been paid by him for the defendant, under the direction of one acting as his general agent. The defendant pleaded the general issue, and under a brief statement relied upon the statute of limitations.

<p>This was an action on the case brought against the defendants, as common carriers, for the loss of a trunk and its contents, through the alleged negligence of the defendants.</p> <p>It appeared in evidence, that the defendants were jointly concerned in running a stage between Bangor and Milburn, by which the mail was carried. The plaintiff, who resided at Corn-mile, having proceeded himself to Bangor, left his trunk to be forwarded with its contents by the defendants’ stage. The trunk was taken, by a member of the plaintiff’s family, to the post office, delivered to the post master with a request that he would deliver it to the stage driver, directing him to leave it at the post office in Bangor, which the post master did; but the trunk was lost and not delivered at Bangor.</p> <p>The defendants shew, that when they established their line of stages they posted notices in divers places, and among them at the post office aforesaid, “ that they would not be accountable for any baggage, unless the fare was paid and the same entered on the way bill.” And it was admitted in this case that the fare had not been paid. The post master had knowledge of the defendants’ advertisements, but he did not communicate it to the plaintiff or to the person who brought the trunk to his office.</p> <p>On this evidence the defendants’ counsel contended, that Smith, the post master, having knowledge of said condition at the time the trunk was left at his office, the carrying of the trunk was subject to the condition, and requested the Court so to instruct the jury. But Ruggles J., before whom the cause was tried in the Court of Common Pleas, instructed the jury that the knowledge of the post master of the said advertised condition not being communicated to the plaintiff, or to the person leaving it at his office, did not subject the carrying of said trunk to the condition ; and left it for the jury to decide, whether the plaintiff had knowledge of the published condition before the trunk was taken by the defendants’ servant to be carried as aforesaid. The verdict being for the plaintiff, the defendants’ counsel took exceptions to the ruling of the Judge and brought the cause into this Court.</p> <p>contended that the post master was to be regarded as the agent of the plaintiff, and that notice to him was equivalent to notice to the principal. 7 Johns. 44 ; 1 Term, R. 205; 4 Term R. 66; 16 Johns. 86; 2 Stark. Ev. 54; 1 Term R. 16 ; 5 East, 498 ; Com. Rig. Title Factor; 2 Stark. 60; 4 Taunt. 565; 13 Ves. 120.</p> <p>cited the following authorities : 5 Peters. Ahr. 95 ; 5 East, 428 ; 5 East, 507 ; 2 Stark. 279, 337 ; Story on Bailments, 338; 2 Stark. 234; 1 Pick. 50; 2 Camp. 414 ; 4 Maryland, Rep. 817.</p>

This was an action of trespass, commenced by the plaintiff, as well for himself as for the other co-tenants under the provisions of the Act of 1821, ch. 35, entitled “ an Act to prevent tenants in common, joint tenants, and copartners from committing waste, and for other purposes.” The case was submitted for the opinion of the Court, upon the following agreed statement of facts.

This action, which was assumpsit upon the special contract of the defendant, hereafter stated, was submitted for the opinion of the Court upon the following agreed statement of facts.

This was an action of covenant broken, founded on an indenture or lease executed between the parties in this suit on the 2d day of May, 1831. The general issue was pleaded, and a brief statement filed, alleging general performance. The lease was from the defendant to the plaintiffs, of a C£ store and cellar” in Bangor, to hold for the term of one or five years from the 1st day of November, 1830.

<p>Courts of equity will decree specific performance of a contract for the conveyance of land, though the party seeking* it may not in every respect have strictly performed his part, of the agreement, if no laches are imputable to him.</p> <p>Though the Court will not lend its aid to enforce a hard, unreasonable and unequal contract, yet the enhancement or depreciation of the value of property by events subsequent to the making of a contract for the conyeyance of land, will not be regarded by the Court, if such contract be fairly entered into at the time.</p> <p>The maker of a note may prove by parol, that the payee, subsequent to the making of the note, agreed that payment might be made to a third person.</p>

<p>Where a preliminary hearing was had before one Judge in vacation, on an application for an injunction, and objection was taken to the jurisdiction of the Court, which was overruled; it was held that the defendant was not thereby precluded from taking the same objection when called before the whole Court by bill.</p> <p>Where one erected dams on certain lakes and streams, thereby diverting or keeping back the waters to which the plaintiff in equity claimed to have a legal right for his mills below such erections, it was held not to be a case of “ fraud” within the meaning of the stat. of 1830, ch. 462, extending the equity powers of this Court.</p>

This was a writ of scire facias in which the plaintiff sought his remedy against the defendant under the decision of this Court, upon writ of error, reversing a judgment recovered by the present defendant against the plaintiff. [Nee 2 Fairf. 475.] And the only question in the case was, whether the plaintiff should have execution for his costs taxed against the present defendant in the original suit. ■ contended that he was entitled to recover the costs in defence of the…

<p>This was an action of covenant broken, founded upon a contract under seal, between the parties, by which the defendant covenanted to sell and convey to the plaintiff a certain house lot in Calais; the deed to be given on a day fixed. For which, the plaintiff was to do certain mason work, and within one year after the delivery of the deed, pay the sum of $200 : The plaintiff did the work as agreed, and demanded a fulfilment- of the covenant on the part of the defendant, or payment for his labor. The defendant then made and tendered to the plaintiff, a warranty deed of the lot, but the plaintiff refused to receive it, on the ground that the land was incumbered by a mortgage given by the defendant to his grantor for the original consideration ; and the question was, whether this tender of the defendant, under these circumstances was a fulfilment of his covenant. And it was agreed by the parties, that the Court should render such judgment upon these facts, as in their opinion would be conformable to the law of the case.</p> <p>The defendant’s covenant was broken by the existence of the mortgage. Porter v. Noyes, 2 Greenl. 22; Greenby v. Cheevers, 9 Johns, 126 ; Van Eps v. Schenectady, 12 Johns. 436.</p> <p>A good title as well as a good deed was intended. Wilde v. Frost, 4 Taunt. 334; 6 Cowen, 445; Judson v. Wass, 11 Johns. 525.</p> <p>Whether the plaintiff knew of the mortgage at the time of the contract cannot affect the case. 5 Taunt. 334,</p> <p>He cited further, Brown v. Bellows, 4 Pick. 179 ; 2 Caines’ ft, 195 ; Sug. Vend, 246 ; Parker v. Palmer, 20 Johns. 130; Bean v. Mayo, 5 Greenl. 94 ; Allen v. Sayward, 5 Greenl. 227; Jackson v. Peck, 4 Wend. 300.</p> <p>That parol evidence was inadmissible in the case, 5 Cowen. 507.</p> <p>insisted that the words, “ sell and convey” did not imply a covenant to convey a good and valid title. Spring wras mortgagor in possession, and as to all the world except JDeming was the owner. The land therefore, passed by the deed. The conveyance in fact, was more full than the contract required, containing as it did all the usual covenants. There is a difference between a covenant to convey a lot of land, and to convey an indefeasible title. The covenant in this case was not of the latter description.</p>

This was a petition for partition of certain lands belonging to the estate of John Bucknam.

Assumpsit, upon the following bill of exchange, viz : “ Calais, July 31, 1830.

Assumpsit, upon two promissory notes, one of which was dated April 6, 1825, given by tbe defendant to Joseph Wilson, and by bim indorsed to the plaintiff’s intestate. The writ was dated August 8, 1833. The defendant pleaded the general issue and the statute of limitations.

Trespass, for taking 500 spruce logs. The plaintiffin his writ claimed to recover the value of the logs, and also special damages for the loss of the profit of sawing said logs at his mill. The plaintiff, in support oí the action, called a witness who testified, that, he was present when the plaintiff came to purchase the logs of William White, Jr. in April, 1833. That they called the number 500.

<p>This was trespass, quare clausum fregit, and was tried upon the general issue, before Parris J. at the June term in this coun-' ty, 1834.</p> <p>The facts, substantially, as stated in the bill of exceptions, were thus : John Black, as agent of the Bingham, heirs, in the year 1824, gave the defendant, Reding, a bond, conditioned for the conveyance of the locus in quo, on payment of two certain notes of hand given for the purchase money. Reding entered into possession, though, as Black testified, he gave him no permission so to do, but it was with his knowledge.</p> <p>In 1825, Reding gave one Charles McLean a bond, conditioned for the conveyance of the same land to him or his assigns, on payment, according to their tenor, of eight notes of hand, payable in equal annual payments from the day of the purchase — the bond also providing, that McLean, his heirs and assigns, might enter into the possession of the land and take the rents and profits to his and their use. McLean lived upon the land until 1827, when he assigned Reding’s bond to the plaintiff, and sold him all his “ claims and possession,” of the lot in question. The plaintiff entered the same year, erected a house upon the land, moved his family thereon, and continued to occupy it till the time of the alleged trespass in August, 1832. At that time, Reding had not paid his notes to Black, and had received no deed from him ; nor had he a legal claim for one. Nor had McLean paid his notes to Reding according to their tenor, or the plaintiff his to McLean.</p> <p>In the summer of 1832, Reding put the other defendant, Crosby, into a part of the house, while Moshier himself was absent at Mirimachi, his family still continuing to occupy the other part of the house. Crosby, under the direction of Reding, cut the grass, and this was the act complained of in this action.</p> <p>After the commencement of the action, which was August 29th, 1832, Reding paid his notes to Black and received a deed from him of the locus in quo, dated March 1th, 1833.</p> <p>The presiding Judge instructed the jury, that if they should find that the defendants entered and took possession by the consent of Moshier, or his wife, then their verdict should be for the defendants. But if no such consent was given, and the entry and acts done, were forcible and against the will of Moshier, or his wife, their verdict should be for the plaintiff.</p> <p>The jury returned a verdict for the plaintiff, and the defendant’s counsel thereupon filed his exceptions to the foregoing instructions, agreeable to the statute.</p> <p>argued in support of the following positions: 1. A. lessee can never dispute the lessor’s title until he deliver possession ; or, unless there has been fraud in the lessor ; or the lessor’s title had expired.</p> <p>2. There is no difference in the operation of the law of estoppel whether the tenant enters under a lease or an agreement to purchase.</p> <p>3. Where the lessee or tenant is estopped to controvert the landlord’s title, all claiming under him are equally estopped.</p> <p>4. Notice to quit is unnecessary where the entry is under an agreement to purchase.</p> <p>Jackson v. Dyer, 14 Johns. 224; Jackson v. Cray, 12 Johns. 427; Jackson v. McLeod, 12 Johns. 182; Jackson v. Creal, 13 Johns. 116; Jackson v. Hardner, 4 Johns. 203 ; Jackson v. Stuart, 6 Johns. 34 ; Smith v. Stewart, 6 Johns. 46 ; Jackson v. Vosburg, 7 Johns. 187; Jackson v. De Watz, 7 Johns. 157; Jackson v. Jones, 9 Cowen, 182 ; Brant v. Livermore, 10 Johns. 358; Jackson v. Whitford, 2 Caines’ Rep. 215 ; Bar-wick v. Thompson, 7 T. R. 488; Fletcher v. McFarland, 12 Mass. 43; Jackson v. Wilson, 9 Johns. 92; Jackson v. Dobbin, 3 Johns. 223 ; Jackson v. Davis, 5 Cowen, 123 : Schauber v. Jackson, 2 Wend. 62; Beaver v. Delahon, 1 U. Black. 8; Watertown v. White, 13 Mass. 481 ; 2 Stark. Ev. 533, (note h. k.) Miller v. McBryall, 14 Serg. Rawle, 382; Bow-leer v. Walker, 1 Vermont Rep. 18; Tuttle v. Reynolds, 1 Vermont Rep. 80 ; Rowan v. Little, 11 Wend. 616 ; Whitside v. Jackson, 1 Wend. 41S; Jackson v. Miller, 7 Cowen, 747; Jackson v. Rowland, 6 Wend, 666; Jackson v. Miller, 6 Wend. 228; Jackson v. Smith, 7 Cowen, 717 ; Tillinghast’s Adams on Ejectmen, 247; Binney v. Chapman, 5 Pick. 124.</p> <p>McLean, was in under Reding, and was therefore estopped to deny his title. Moshier claiming under McLean, and well knowing of Reding’s title, is equally estopped. The possession of Reding, if not by deed, was by the tacit consent at least of Black, and this equitable title is sufficient at least against McLean &f Moshier. Besides, it is contended that the deed of Black, had relation back to the time of the agreement to purchase and entry under that agreement.</p> <p>citing the following authorities : Corn. Dig. Trespass, B. 1 ; Hammond’s N. P. 153 ; 2 Wheaton’s Selwyn, 1018; Suffring v. Townsend, 9 Johns. 35 ; Proprietors, &fc. v. McFarland, 12 Mass. 324 ; Shaw v. Wise, 1 Fairf. 113 ; Adams on Ejectment, 247 ; Morgan v. Paul, 17 Com. Law Rep. 303; Coffin v. Lunt, 2 Pick. 70 ; 1 Esp. Dig. 268; 1 Cruise, 281 ; 1 East, 245; 1 Taunt, 322; 2 Saund. on PI. 866 ; Smith v. Stewart, 6 Johns, 46; Jackson v. Davis, 5 Coiven, 123.</p>

This was a writ of entry, in which the plaintiffs demanded certain parcels of land in BucJcsport, being parts of the parsonage in said town, counting on their own seizin within twenty years, and a disseizin by the tenant. The demandants proved the original designation of the lot by the proprietors, as the parsonage lot; and a formal entry upon the same, before bringing the action.

This was an aciion of assumpsit. The writ contained two counts — the first on an account annexed, in which the defendants-were charged for “ labor on the highway in 1828, on account of non-resident propietors’ tax, $41,56, and interest on the same, 5 years and 11 months, $13,76.

This was an action of covenant broken, and was submitted for the decision of the Court upon the following statement of facts, which was agreed by the parties. On the 8th of March, 1830, the defendant being seised in his; own demesne as of fee, of a certain lot of land, conveyed the the same by deed of that date to the plaintiff, in fee and in mortgage, to secure the payment of certain notes of hand, the deed containing the usual covenants of seisin and warranty.

<p>Where a subsequent attaching creditor had been permitted to defend the suit of a prior attaching creditor, under the provisions of stat. of 1831, ch. 508, it was held, that he could not be precluded from pursuing the defence by the defendant bringing into court, and depositing with the Clerk for his acceptance, the amount of his, the said subsequent attaching creditor’s, claim.</p>

This was an action of assumpsit, brought to enforce an agreement made by the defendant and a deceased brother, jointly, with the father of the plaintiff for her benefit. The facts in the case are fully stated in the opinion of the Court. 1. That the defendant was excused from the performance of the agreement, it having become impossible by the act of God, in consequence of the death of the defendant’s brother, who jointly promised with him. 2.

Assumpsit on an account annexed to the writ. The only question in the case, arose from a charge of $1,50 for a quantity of yarn. To show the sale and delivery of this, the plaintiff} among other evidence, called one Melvin as a witness, who testified that he received the yarn of the plaintiff for his own use, on the defendant’s account, in pursuance of verbal directions from him.

This was a writ of entry, brought to recover possession of an undivided moiety of a certain lot of land in this county. The general issue was pleaded and joined. The demandant relied upon a title acquired under the levy of an execution, on the 25th of April, 1829, against Samuel D. Reed and John Drummond, in favor of Hall J. Howe, the demandant, and James Howe, the latter of whom had deceased prior to the commencement of this suit.

<p>Where, in the levy of an execution, the appraisers were sworn to appraise reai estate to satisfy “ the execution,” omitting, “ and all fees,” the levy was nevertheless held to be valid.</p> <p>iThe officer’s return stated, that the debtor refusing to choose an appraiser, two' were appointed by the officer himself. Held, that this was equivalent to á statement that the debtor was notified to choose.</p> <p>In levying an execution upon real estate, the appraisers may lawfully take into Consideration, the contingent right of dower in the wife of the debtor.</p>