Volume 13 — Maine Reports

This was a writ of entry to recover a tract of land In Sanford. The tenant pleaded the general issue, and in his brief statement alleged, that he was not tenant of the freehold, but held only as tenant at will under Timothy Shaw, who was tenant of the freehold. The parties agreed on a statement of facts on which the action was submitted for the opinion of the Court.

This was a bill in equity, in which the plaintiff alleged, that in September, 1829, the defendant and one William. Held: that it does not. It is sufficient to say, that the only question now before the court is, whether the former judgment is a bar to this bill.

This was an action of trespass quare clausum, and came up on exceptions from the Court of Common Pleas. Held: that a writ of entry will lie, where one denies the title of his cp-tenant, and yet no one would pretend, that on such evidence an action of trespass could be maintained. But if the proposition were made out, the cases cited do not shew, that a writ of entry could be maintained on the facts appearing in this case.

<p>This was an action of trespass for taking and carrying away a quantity of timber and bark, alleged to be the plaintiff’s property. The defendant pleaded the general issue, and filed a brief statement, setting forth that the timber and bark were not the property of the plaintiff, but of the heirs of William Bingham and others, owners of township No 14, in the County of Hancock ; and that the defendant, acting by direction of their agent and attorney, took the timber and bark, because it had been illegally cut on said township.</p> <p>The defendant proved a conveyance of said township from the Commonwealth of Massachusetts to William Bingham, by deed, dated Jan. 28, 1793. The deed contained the following words — “ reserving to each of the settlers, who settled on the premises before the 1st day of July, 1791, his heirs and assigns forever, one hundred acres of land, to be laid out in one lot so as to include such improvements of the said settlers, as were made previous to July 1, 1791, and to be least injurious to the adjoining lands; and eacli of said settlers, who settled before Jan. 1, 1784, upon paying to said Bingham, his heirs and assigns, five Spanish milled dollars, and every other of said settlers, upon paying to said Bingham, his heirs or assigns, twenty Spanish milled dollars, shall receive from the said Bingham, his heirs or assigns, a deed of one hundred acres of said land, laid out as aforesaid, to held the same in fee ; the said deeds to be given in two years from the date hereof, provided the settlers make payment as aforesaid, within that period.”</p> <p>The plaintiff shew, that the timber and bark were cut on a lot in said township, which was actually occupied as a settler’s lot before July 1,1791, by one Flood, under whom he claimed. There was no evidence, that any sum of money had been paid or offered to Bingham, or his heirs, for this lot in pursuance of said reservation, or that any deed of the said lot had been given to Flood, or those claiming under him, by Bingham, or his heirs; but there was evidence tending to shew, that the possession of the lot was abandoned by the settler, as early, as 1792, prior to the deed from the Commonwealth, and that no person had subsequently resided thereon.</p> <p>The plaintiff’s counsel contended, that the title to this lot never passed to Bingham by the deed; but Parris J., who tried the cause, ruled that it did.</p> <p>Thomas M. Willing became the owner of one half the township, No 14, by conveyance from Bingham, and by his will, approved Oct. 28, 1822, authorized his executors to make conveyances to pass the real estate, whereof he died seized; and in pursuance of this authority, R. Willing, as surviving executor of T. M. Willing, on the 6th of Sept. 1827, conveyed this lot, in trust, to J. Richards and J. R. Ingersol. A copy of the will of T. M. Willing was filed in the proper probate office in this State, subsequently to the giving of said deed by R. Willing. The counsel of the plaintiff objected, that as no copy of the will had been filed within this State at the time of the making of this deed, that it was inoperative and that nothing passed by it; but the Judge overruled the objection.</p> <p>The defendant proved, that in taking possession of the timber and bark, he acted under John Black, who professed to be agent and attorney of the owners of township No. 14. To prove the agency of Black, the defendant offered a power of attorney from the heirs of Bingham, and from Richards and Ingersoll, to said Black, but failed to prove its due execution. He then offered Blade’s deposition to prove his agency, to the admission of which the plaintiff objected. That the trial might proceed, the Judge permitted the deposition to be read. The jury returned a verdict for the defendant, which was to be set aside, if the ruling of the Judge was incorrect.</p> <p>1. That the reservation in the deed, from the Common wealth to Bingham, operated as a covenant to the use of the settlers. No title to the settler’s lots passed to Bingham in the first instance, nor could it, until he had located the lots, and offered deeds on payment of the sums stipulated in the reservation. The payment by the settler was not a condition precedent, but he was entitled to retain his possession until the location was made of his lot, and would forfeit his right only by refusing to pay on tender of the deed. It could never have been contemplated, when the deed was made, that the settlers were to go to Philadelphia to pay their five dollars eacli to obtain their deeds. But if the reservation did not convey the lots to the settlers, still the title in them did not pass to Bingham,, and the tenant cannot shew title in a third person, unless he can derive title to himself by legal conveyance. Shapleigh v. Pilhbury, 1 Greenl. 271.</p> <p>2. The will of Bingham could have 110 legal effect to convey lands in this State before the copy was filed according to the provisions of our statute.</p> <p>3. The written power of attorney produced, but not proved, shew, that Black’s power, if any, was not by parol, but in writing. Parol evidence to prove its contents is inadmissible. B'laclc was interested, and for that cause his deposition was inadmissible. He was liable to Bean for all damages sustained in consequence of his assuming to be tbe agent of tbe Bingham heirs when he was not.</p> <p>1. As Bingham was to convey tbe foe to tbe settlers, on their complying with the conditions prescribed in the reservation in the deed, the fee must pass to him, or he could not pass it to others. And as there was but one deed made, or contemplated to be made, from the Commonwealth to Bingham, the fee must necessarily pass when the deed was delivered. This question is settled in principle, in Dunlap v. Stetson, 4 Mason, 349. But in this case no such question can fairly arise, because the report shews, that the original settler had abandoned the lot before the deed to Bingham. The reservation applied only to settlers then upon the land.</p> <p>2. Our statute is silent as to the time when the copy of the will and of the probate of it is to be filed. When once filed, the will is to be considered as valid as if it had been proved here at the time it was proved in the place of the testator’s domicil. The filing of the will operates retrospectively and gives effect to it from the time of its being originally proved.</p> <p>3. It is not necessary that a power to act in a case like this should be in writing. If this be true, then it is not necessary to produce a written power, if one exists; but it is sufficient to prove in any mode, the authority to act for the principals. This may well be done by parol. The defendant is not the person holding the written power, and ought not to be prejudiced, if it is withheld. He having acted under the direction of Blade, ought to be allowed to shew that Blade was the agent of the owners, by any means within his power. The deposition of Blade is proper evidence for that purpose. He is a competent witness to prove his own agency; Paley on Agency, 235. It has been held, that a magistrate, having a written commission, may testify on a trial, that he is a magistrate. State v. Hascall, 6 N. H. Rep. 352. Where the acts of the agent are beneficial to the principal, as in this case, the agency may be presumed. Hatch v. Smith, 5 Mass. R. 42.</p>

This was a scire facias in the name of the Judge of Probate, commenced by Moses Titcomb, administrator on the estate of Elizabeth Titcomb. The original action on which judgment was rendered in the suit on the bond, was commenced prior to the enactment of the statute abolishing special pleading.

This was an action of debt on a bond, executed by both plaintiff and defendant, in the penal sum of five hundred dollars.

This is an action against the defendant, as indorser of a promissory note, in which C. C. Mitchell and T. B. Little were promissors. Suits were commenced against the promissors and indorser, at the April term of tho S. J. Court, 1835. The action against the promissers was defaulted at the same term, and that against Osborn continued, the plaintiffs moving for judgment, and tho defendant alleging a defence.

<p>An authorized committee of a corporation by memorandum in writing, agreed that S. should occupy their hotel for one. year at a stipulated rent to be paid quarterly in advance; and that he should have the refusal of it for two succeeding years, provided he kept a house satisfactory to the committee. No time was mentioned in the agreement when the occupancy was to commence, hut it. was fixed on the trial hy the proof of both parties. Held, that this waa a valid contract for a lease, and that the corporation were liable to pay the amount of the loss sustained by their refusal to comply with its terms.</p> <p>Parol evidence, that the agreement was reduced to writing by the committee and delivered to S. in consequence of his statement to them, that he wished to have it in writing to show to a third person for a particular purpose, but to whom it was not shewn, was held not to destroy the right of action on the agreement.</p>

This was an action on the case, and came before the Court on an agreed statement of facts.

This was an action of replevin for a horse, alleged to be the property of the plaintiff. The general issue was pleaded with a brief statement, that the horse was the property of one Parker, and that the defendant, as a deputy sheriff, attached it as Par-Jeer’s property.

This was an action of trespass on the case brought against the defendant for acting as a deputy sheriff, when be was not such in fact, in the extent of an execution upon land of the plaintiff in June, 1829.

<p>Where a town voted to indemnify an inhabitant for his costs, in a certain, suit, “ which had arisen or might arise in the same on account of Gray line,”' and an action had been brought against the town to recover the costs of that suit; parol evidence was held admissible to shew, that the suit was brought at the request of the Selectmen and Town Agent for the purpose of settling a disputed line between that and an adjoining town, with the express agreement, that the town should pay all costs incurred either in settling the line or in proving the title; and to shew, that these facts had been communicated to the town before the vote was passed.</p> <p>Also, to shew, that the suit was conducted to its termination with the advice and direction of the Selectmen and Town Agent.</p> <p>It was held, that the action could be maintained, although it appeared from the verdict of the jury, that the line claimed by the town was the true line, and that the suit failed from defect of proof of title to the land.</p> <p>Parol evidence, admitted to prove that the plaintiff had a good title to the land, was held to be immaterial.</p>

This was an action of trespass, for injuries done to the plaintiff’s store, and was tried before Parris J. There were two counts in the declaration for different trespasses with the space of a year between them.

This was an action of trespass quare clausum, for cutting and carrying away the plaintiff’s grass during the months of July and August, 1835. The general issue was pleaded and joined, and a brief statement filed of soil and freehold in the defendant, and that the plaintiff was not in possession ; and a replication was made, that the soil and freehold were in the plaintiff.

This was an action of assumpsit brought to recover a bill for horse keeping, and was tried at the March term of the Court of Common Pleas, 1836, before Whitman C. J.; and came before this Court on exceptions to the ruling of the Judge.

<p>Where goods are sold on credit at a foreign port and .shipped on hoard a vessel of the vendee, consigned to him, and to bo delivered to him at his port of residence ; and the consignee becomes insolvent before payment is made • the vendor has the right to slop the goods in their transit at any time before they shall come into the actual possession of the vendee.</p> <p>The right to stop the goods in transitu, is not divested by the purchase of the goods of others by the vendor on his own credit for the vendee.</p> <p>Nor by the vendor’s taking bills of exchange drawn in his favour by the master of the vessel on the vendee.</p> <p>Nor by charging a commission for doing the business.</p> <p>Nor does the reception by the vendee of part payment take away the right.</p> <p>A claim made by the vendor on any person having charge of the goods, before the transit ends, is a sufficient exercise of the right of stoppage to revest the goods.</p> <p>To prevent the enforcement of this right, it is not sufficient for the consignee to make his claim to the goods ; he must obtain the actual possession.</p> <p>To entitle himself to exercise his right of stoppage, the vendor is under no obligation to refund what ho may have received in part payment; nor to pay the value of the freight.</p>

Writ of entry on the demandant’s own seizin ; who claimed title from the defendant by virtue of the extent of an execution against him on the premises, July 5, 1831.

This was an action of trespass quare clausum, and came before the Court on a statement of facts. The general issue was pleaded and a brief statement filed in which the plaintiff alleged, that at the time of the act complained of he was tenant in common in the premises with the plaintiff The plaintiff had an undisputed title to one undivided half of the premises from Enos Abbott, by deed dated May 4, 1827. The title to the other half stands thus.

<p>Exceptions from the Court of Common Pleas.</p> <p>The action was trover for the conversion of a watch on the 10th of Nov. 1834, and was tried on the general issue before Whitman C. J.</p> <p>The plaintiff proved by one Perry, that the defendant and Nathaniel Ward stated, that they were joint owners of the right of using a patent threshing machine for a certain territory and that the plaintiff and Perry, the witness, agreed to purchase of the defendant and Ward, on certain conditions; that the watch sued for was delivered by the plaintiff to the defendant to go in part payment for the right to use said machine, if the bargain was completed. The defendant offered in evidence the deposition of said Ward, the substance of which sufficiently appears in the opinion of this Courtwhich deposition was objected to by the plaintiff’s counsel on the ground, that Ward was interested in this suit, as appeared by the testimony of Perry and his own statement in the deposition. The Judge sustained the objection, and refused to permit the deposition to be used. Whereupon the defendant’s counsel moved the Court for a continuance upon the ground, that as his deposition was now rejected, he was taken by surprise by the objection, and was not now prepared for trial, and that if a continuance were granted, Ward would discharge himself from all interest he might have in the watch. The Judge refused to grant a continuance, and directed the cause to proceed to the jury. The jury returned a verdict for the plaintiff, and the defendant excepted to the ruling of the Judge, both in rejecting the deposition and in refusing to grant a continuance.</p> <p>argued in support of the objections taken in the Court of Common Pleas, and cited on the first point; 1 Phillips’ Ev. 38; Hasbrouck v. Lown, 8 Johns. 11. 377; 2 Starkie on Ev. 755, 764, 765, 766; White v. PMi-brook, 5 Greenl. 147; Standish v. Parker, 2 Pick. 20.</p> <p>He cited on the second point, 1 Greenl. 417, Rule 23; St at. ch. 193, sec. 5.</p> <p>and cited Gage v. Stewart, 4 Johns. R. 293.</p>

Exceptions from the Court of Common Pleas. The action was trespass for cutting and carrying away 408 white pine logs on the 19th of March, 1830. The suit was brought on May 20, 1835.

<p>This was a bill in equity, and was heard on bill, answer and proof. The principal allegations in the bill were, that the plaintiff had made a contract of marriage with a Mrs. Bales, who had personal property to the amount of fourteen hundred dollars, and that the marriage took place between them April 5, 1832 ; that the defendants aspersed the character of the plaintiff, and by false and fraudulent representations influenced and induced Mrs. Bates, without the knowledge of her intended husband, on the morning of the day of the marriage, with full knowledge, that it was expected to take place that day, and with the view of defrauding the plaintiff of the rights which would accrue to him when this marriage contract was perfected, to convey all her personal property to the said Marshall Andrews, on the said Marshall’s sole promise to pay her twenty-five dollars annually during her life, taking his bond for the payment thereof without security, as the sole consideration. The bill also charged, that Mrs. Bates was a weak and ignorant woman, and signed the papers without a knowledge of their contents, and that they were different from her expectation: alleged a demand of tho property, and refusal to deliver it; and concluded with a prayer for a discovery of the property, and that a conveyance of it to the plaintiff might be ordered.</p> <p>The defendants made answers severally. Peres Andrews denied, as far as related to himself, every allegation in the bill.</p> <p>Marshall Andrews admits, that the marriage contract was entered into, and that the marriage took place, as stated in the bill, and that she had certain personal property particularly specified. He says, that a short time before the marriage, Mrs. Bates of her own motion, and without any intimation from him, commenced a conversation in which she expressed a determination to place her property in a situation, that she might be able to receive a certain stipulated sum annually in place of it, and requested him to consult counsel, as to the mode in which it could be done; that he did so consult counsel and inform her of the result; that she told him, she had property and no children; that she chose to dispose of her property to her own liking ; that as he was her nephew with whom she had lived a number of years, and from whom she had received many acts of kindness and attention, she resolved to repay him, as she had an undoubted right to do ; and that she then solicited him to accept an assignment of the property securing her twenty-five dollars annually, that sum, as she remarked, being as much as she wanted; and that in consequence of this request he did accept the assignment, and gave her his bond to pay that sum annually, and offered to procure a surety, but she did not wish it. He says, that the time of doing the busines was fixed on by the gentleman who made the papers; that they were read, examined and well understood at the time ; that while the subject of the marriage was in contemplation, she expressed her determination to the plaintiff, that she would not marry him on any condition, but to have her property secured to her, or to remain at her own disposal, or that he should allow her to secure the same in any way she thought proper, without said Tucker’s exercising any control over the same in any way whatever ; that he, the respondent, believes that Tucker then and there acquiesced and consented to these terms; that although the interest was more then twenty-five dollars per year, that this was well understood by her ; that before and since the demand of the plaintiffj Mrs. Tucker has earnestly requested the respondent to keep the property and perform his agreement with her ; that she has since then received money on said bond; and that the bond is still retained in force against him.</p> <p>All the other allegations in the bill are wholly denied, and proof called for.</p> <p>The proof in the case was voluminous but its import will be found in the opinion of the Court, and therefore is not given here. ' ;</p> <p>The arguments were in writing.</p> <p>Deblois, for the plaintiff, cited the.- following authorities, and made extracts from many of them. Newland’s Eq. 417; Pay-ton v. Bladwell, 1 Vernon, 240; Redman v. Redman, ibid., 348; Lambe v. Maman, 2 Ver. 348; Kemp v. Coleman, 1 Salk. 156; Gale v. Lindo, 1 Ver. 475 ; Drury v. Hooke, ibid. 412; Kent v. Allen, 2 Ver. 588 ; Thurston v. Benson, 1 Peere Wms. 459; 2 Powell on Con. 162 to 167; Pitcairn v. Oglander, 2 Vesey, 374; Small v. Brackly, 2 Ver. 602; 2 Fonbl. Eq. 266; Carleton v. Earl of Dorset, 2 Ver. 17.</p>

<p>This was a writ of entry demanding a small tract of land in Litchfield, and was tried on the general issue before Emery J. The demandant made out his title by deed, and the controversy in the case arose from the defendant’s setting up a title in himself by disseisin, and the demandant’s deed was inoperative, because his grantor was disseised, when the deed was made. All the testimony was given at length in the report of the Judge. It appeared, that the defendant had passed over the land in going to and from his house, and had during the summer season fenced in a cowyard on the tract, suffering the fence to be down in the winter. The defendant and others had sometimes piled lumber there. It appeared also, that about the time of the purchase by the plaintiff of this tract, that the defendant had made use of expressions of regret, that he did not purchase the land in dispute.</p> <p>The Judge instructed the Jury, that it was a desirable circumstance, that titles to real estate, in trials at law, should be traceable by deeds on record, as far as practicable; that still titles might be acquired by disseising the true owner; by open, notorious and exclusive possession of the defendant for more than twenty years.</p> <p>That they would carefully weigh and consider all the evidence in this case, and gather from it, whether such acts, as were proved by the defendant, were made under a claim of right, or whether they were merely temporary acts of convenience. That sometimes a man from cupidity, oddity of temper, or from some pressing occasion, might attempt to use his neighbor’s land, and actually enter upon it without leave; and the owner from reluctance to quarrel, from diffidence, or unwillingness to deny accommodation, might omit immediately to assert his right. In such case, if the property were enclosed with a fence, and exclusively occupied by a person, originally having no right, for twenty years ; ho would acquire a title by disseisin. But the circumstance of one’s passing over another’s ground for a dooryard, without its being enclosed by fence for twenty years, though it might he convenient, would not divest the owner of the fee in the land. Nor would the building of a cowyard, and using it in the summer season, and then suffering it to be removed in the winter. They would carefully consider the nature, extent, and continuance of the defendant’s possession, and the jury would judge from the testimony of Levi Kendall, whether the defendant could have pretended any right, when he expressed his sorrow, that Kendall had sold the possession, for the defendant meant to have bought it. And from the testimony of James Jcweit, as to his information about the property, and that ho never heard of Mr. Freeman’s pretending to own the heater piece till since Mr. Blake bought of Mr. Parks. That the defendant shewed no deeds conveying any right to him; that they would determino which was the better title: there was nothing to prevent the operation of the deed to the plaintiff, unless William Parks was disseised at the time it was made. And if ho was not then disseised, they would find a verdict for the plaintiff. But if they were satisfied, that the defendant openly occupied and improved the land exclusively, by surrounding it with fence and continuing the fence for twenty years before the commencement of the plaintiff’s action, they would find a verdict for the defendant.</p> <p>The Jury found a verdict for the plaintiff, which was to be set aside, if the Judge’s instructions were wrong.</p> <p>The land in controversy was in Litchfield, and after the commencement of the suit, and before the trial, that town was annexed to and became a part of the county of Kennehec. And for that cause the counsel for the defendant filed a plea in abatement, and also a motion to dismiss the action for want of jurisdiction.</p> <p>1. That the grantor of the demandant was disseised, and that nothing passed by his deed. 3 Mass. R. 573 ; Porter v. Perkins, 5 Mass. JR. 233; Gould v. JNe.wman, 6 Mass. R. 239; Davis v. Hayden, 9 do. 514; Pixley v. Bennett, 11 Mass. R. 298; Hathorn v. Haines, 1 Greenl. 238.</p> <p>A conveyance by a disseisee is void, and the title still remains in the grantor. Thorndike v. Barrett, 2 Greenl. 312; Brinley v. Whiting, 5 Pick. 348. In a writ of entry the tenant, under the general issue, may disprove the seisin alleged. Stanley v. Perley, 5 Greenl. 369.</p> <p>An entry into land to defeat a disseisin should be done with that intention, sufficiently indicated either by the act, or by words accompanying it. Robinson v. Sweet, 3 Greenl. 316.</p> <p>2. The instruction of the judge, that a fence was necessary to create a title by disseisin was erroneous. The stat. of 1825, ch. 307, has altered the law in that respect. Pro. of Ken. Pur. v. Laboree, 2 Greenl. 287. A fence is but evidence of possession, not essential to it. Dennett v. Crocker, 8 Greenl. 239. A dis-seisin may be affected without the actual knowledge of the owner of the land. Poignard v. Smith, 6 Pick. 172. Where a disseisor employed an agent to procure a deed from the owner of the land, and took the deed in his own name, the disseisin was not purged, and nothing passed by the deed. Small v. Proctor, 15 Mass. R. 495. An offer to purchase of the true owner, made by the tenant in possession of land not his own does not prejudice his right to betterments. Blanchard v. Chapman, 7 Greenl. 122 ;JLittle v. Libby, 2 Greenl. 242.</p> <p>The declaration of Freeman, that he regretted he had not purchased of Kendall, can have no legal operation against him. A proposal to purchase docs not purge a disseisin. Small v. Proctor, 15 Mass. II. 495; Blanchard v. Chapman, 7 Greenl. 122.</p> <p>A. recorded deed alono does not constitute a disseisin of itself. Pejepscot Prop. v. Nichols, 1 Fairf. 262.</p> <p>On the motion in arrest of judgment.</p> <p>There is nothing in the act setting off Litchfield to Kennebec saving in any maimer any right whatever.</p> <p>The action is local, and must bo tried in the county where the land lies. indent Charters, 44; Phelps v. Becker, 10 Mass. R. 267. Actions abate by acts taking place after the suit is commenced. Ryder v. Robinson, 2 Greenl. 127. And this may be taken advantage of on motion. Adams, v. Leland, 7 Pick. 62.</p> <p>Nor is there any difficulty in the case, for the venue may be changed at anytime before the trial. Tidd’s Pract. Venue; Cowper, 409.</p> <p>argued, that as there was no motion to set aside the verdict, because the jury had drawn wrong conclusions, the only question on the report was, whether the Judge’s instructions were correct.</p> <p>The first of these is not opposed to the defendant. The second one, that it was necessary, that fences should bo continued for twenty years was unquestionably correct. The instruction does state, that to be the only mode of acquiring title by possession of land unoccupied by buildings. The stat. of 1825, does not profess to be retrospective, and if it did, it would be unconstitutional and void. As to the other instructions, disseisin is always a question of fact. The law is stated by the court, and the jury settle the facts. As to the fence, the judge merely put it to the jury to say, whether from the fact of its being removed in the winter, it was intended to be the boundary line of his land; an instruction quite as favourable to the defendant, as the law would warrant. There is no principle of law involved in the comments upon the testimony of the witnesses. The law of dis-seisin in this State is too clearly settled to render it proper to cite authorities to shew what disseisin is.</p> <p>As to the objection, that the court has not jurisdiction. The action was brought in the right county, and no alteration in the county lines made afterwards can take from the court the power to proceed with the action. Neither by our statutes or practice is an action sent from one county to another to be tried. The court having once lawfully acquired jurisdiction in this county will hold it until the case is finished. Carver v. As tor, 4 Peters, 1.</p>

<p>The action was debt on a recognizance entered into before a Justice of the Peace, and was brought originally in the Court of Common tPíeas¿ At the first term in that court, the defendant demurred generally to the declaration. In this court, 1 Fairf. 266, the declaration was adjudged bad; but leave was given to amend on terms. To the amended declaration the defendant, after oyer of the recognizance declared on, demurred specially, assigning ten causes of demurrer. The plaintiff joined in demurrer.</p> <p>The recognizance was entered into before Ebenezer Thatcher, as a Justice of the Peace, by Findley Kellock, as principal, and the defendant as surety, in the sum of fifty dollars, to be levied, &c. if default should be made in performance, of the following condition. “ The condition of the above obligation is such, that if the above named Findley Kellock shall at the next Court of Common Pleas for said county of Lincoln, which is to be holden at Topsham, in said county, on the fourth Tuesday of August next, prosecute with effect an appeal by him made from a judgment obtained against him by the said Josiah W. at a Justices’ Court, which was holden before me, the said justice, at my office in said Thomaston) on the day and year aforesaid, and also to pay all intervening costs and the rent of the premises, if judgment be given for complainant; then the above obligation to be void —■ otherwise to remain in full force.”</p> <p>It is well settled, that a recognizance taken by a magistrate of inferior jurisdistion, in favor of which nothing is to be presumed, must recite so much of the cause of caption, as to enable the court to judge, whether he had jurisdiction of the subject, and had a right to require such recognizance. Bridge v. Ford, 4 Mass. II. 641; Same case, 7 Mass. R. 209 ; Commonwealth v. Downey, 9 Mass. B. 520; Commonwealth v. Daggett, 16 Mass. R. 447; Harrington v. Brown, 7 Pick. 232.</p> <p>There is nothing in the recognizance in this case by which any one can conjecture what was the cause of action, or even whether there was any. It mentions a judgment, but what right to render a judgment of any kind against Findley Kellock, does not appear. Nor does it show, if any action was pending, what its nature was; whether ejectment, trespass, replevin or debt. No defect in the recognizance can be remedied by any allegation in pleading. It is itself the record declared on. It is the only record which, as a foundation for a suit, is required to be returned into the Court, where the suit is brought, and is the only record in this case alleged to bo returned. The judgment alleged in the declaration to have been recovered against Findley Kellock, in the C. C. Pleas, cannot be made to cure any defect in the recognizance, even if the declaration had alleged, that the judgment was recovered in the same action or proceeding in which the appeal was made. It could not be used, but for proof of a breach of condition. Commonwealth v. Daggett, before cited.</p> <p>There is no sufficient breach assigned. The declaration merely states, that the plaintiff recovered against Findley Kellock costs of suit, and that those costs have not been paid. There is no allegation, that the appeal was not prosecuted, nor that the costs recovered were in the same suit, and none, that intervening-costs were recovered. There might be a recovery of costs, but none after the appeal.</p> <p>A want of notice before the suit of intervening costs having been recovered, and the amount, is fatal to this action. The settled rule is, that when the event upon which a certain act is to be done, or liability arise, is equally within the knowledge of both parties, no notice is necessary. But if it be more within the knowledge of the conusee or obligee, than in that of the conusor or obligor, notice must be given before the action will lie. 1 Chitiy on PI. 360 ; 2 Saund. 62, n. 4; Com. Dig. Pleader, C. 73. This objection was overruled in Hobart v. Hilliard, 11 Pick. 143, but that was on the ground, that the defendant was the attorney and entered the action, and therefore must be presumed to know the fact. But in this case, the plaintiff must necessarily know how the fact was, and the defendant had no better means of knowing, than any indifferent person.</p> <p>There should have been a demand. The undertaking of the defendant was but conditional and collateral. The plaintiff might have elected to proceed against Findley Iiellock on the execution; and therefore a demand was necessary, and a refusal, before a suit can be maintained against the defendant.</p> <p>But the justice had no right to take such a recognizance in any suit whatever. None such is authorized by law in any case. There is a very material difference between this and that most resembling it, the proceedings by complaint for forcible entry and detainer. By the provisions of that act two sureties are required for the prosecution of the appeal and the payment of costs, and but one for the payment of rent. Here being but one, he must be considered surety for the rent, if anything ; the justice had no power to require one to pay costs. And for that cause the recognizance is void. The condition of this recognizance is to pay intervening costs only. The statute requires the recognizance, in this process, to be to pay all costs. If it be said, that the error is in favor of the defendant, and that therefore it is not for him to object, the reply is, that it is a judicial proceeding prescribed by law, and not arising from contract. The justice has no right to take any other, than the one prescribed by statute.</p> <p>The condition of this recognizance is “ to pay the rent of the premises.” The statute requires it to be to pay “ such reasonable intervening rent for the same lands, as the justice shall adjudge.” In this respect the recognizance is erroneous and void.</p> <p>But had the proceedings been correct in point of form, yet the recognizance would be void, because a justice of the peace has no jurisdiction of forcible entry and detainer. It is cognizable only by a justice of the peace and of the quorum. The declaration as well as the recognizance shows, that he acted as a justice of the peace only.</p> <p>It appears by the condition of the recognizance, that a judgment had been rendered by justice Thacher against Findley Kelloclc, and that he had appealed from it to the Court of Common Pleas ; and these facts appear on oyer. It is too late now to allege want of jurisdiction of the the justice. He should have pleaded want of jurisdiction, and thus have prevented a judgment against him. By the declaration demurred to, it appears, that the judgment appealed from was confirmed in the Court of Common Pleas, and that judgment is in full force. It is a good and binding judgment until reversed.</p> <p>By the statute of 1824, ch. 268, <§> 3, justices have the right to require such recognizances for payment of costs and reasonable rents. The justice did not give judgment for any rents, and therefore the amount does not appear in the recognizance. The declaration refers to the record, and the record gives the perfect and legal history of the proceedings of the justice, and therefore perfect certainty is obtained by it.</p> <p>In making up costs, the whole costs are taxed together, and the judgment is entire. The declaration states that costs were recovered in the Court of Common Pleas, and that they were unpaid. They must necessarily be intervening costs, and when judgment is made up in this suit, if there is any chancery on a recognizance, the amount will be ascertained.</p> <p>The declaration docs state, that the record of the justice and the recognizance were returned to the Court of Common Picas, and that judgment was recovered in the same process for possession and for costs. This is sufficiently certain.</p> <p>It appears by the condition of the recognizance, that Ebenezer Thacher was a justice of the peace, at the time he tried the cause ; and if he was not of the quorum, and therefore had not jurisdiction of the cause, the want of it should have been pleaded in abatement, as has been said. In the judgment referred to, it is stated, that Thacher was a justice of the quorum.</p> <p>The defendant bound himself for the doings of his principal, and was thereby as much bound to know what the judgment was, as the principal. No demand was necessary prior to the commencement of the suit, any more than if he had signed a bond for the payment of money, which had become due.</p>

ExceptioNs from the Court of Common Pleas. This was a writ of entry wherein the demandant, counting on his own seisin, demanded a tract of land in Wiscasset, and was tried before Smith J. upon the general issuo. The plaintiff, in support of his action, read in evidence a deed from Joseph Munsey to Samuel Munsey, Aug. 14, 1823, and from Samuel Munsey to himself, Sept. 6, 1828, and there rested bis case.

Exceptions from the Court of Common Pleas. This was an action of debt on a bond executed by Longfellow, as principal, and the other defendants, as his sureties, and conditioned to pay the “ laying in” charges of one Mary Jenny, then pregnant with an illegitimate child, and to pay the bills which should accrue for the necessary support of her child, until it should be three years old.

This was an action of the case for enticing av?ay and harboring John Hayden, jr. tbe apprentice and servant of the plaintiff.

This was a writ of entry, demanding a tract of land in Dresden. The tenant pleaded the general issue which was joined, and by brief statement claimed an eighth as his own, and disclaimed the residue. The demandants claimed an undivided fourth part as heirs of James Bugnon, who was once seised of it.

ExceptxoNS from the Court of Common Pleas. This was an action of assumpsit for supplies furnished one Eunice Lindsey and her child, alleged to be paupers, and to have their legal settlement in Vinalhaven. Eunice Lindsey was the daughter of James and Uuldah Lindsey.

This was a process of forcible entry and detainer under the stat. of 1824, ch. 268, brought by the defendants in review against the plaintiff in review, before a Justice of the Peace and of the quorum.

This case came before the Court on a statement of facts referring to a deposition of one Campbell, as a part of it.

<p>This was an action of debt on a judgment recovered before the Court of Common Pleas for the county of Lincoln, at the April Term, 1828, for $66,33, debt, and 9,93, costs. The defendant pleaded payment of the judgment to the plaintiffs, and in a brief statement alleged, that he paid the amount of the judgment to one Mason, then a deputy-sheriff, and as such holding an execution issued on said judgment for the amount thereof. The issue was joined. The judgment was proved, and an execution appeared to have been issued thereupon, dated Sept. 29, 1828, returnable to the then next term of the C. C. Pleas, to be holden on the 4th Tuesday of Dec. then next. On the back of this execution was a return in these words :</p> <p>“ Lincoln, ss. Jan. 1, 1829. I return this execution in no part satisfied. Jonas Mason, Dept. Sheriff.”</p> <p>It appeared from a certificate of the clerk of the Courts, that the execution had not been returned into the clerk’s office, May 6, 1835. The defendant objected that this return could not be used in evidence, because it was dated after the return day of the execution. He also offered the deposition of said Mason to shew, that said return was in fact made in July, 1834. Emery J. before whom the action was tried, overruled the objection, and rejected the deposition. The defendant then offered to introduce the deposition of said Mason to prove, that the amount of the execution was in fact paid to him after the return day of the execution, and that the execution remained in his hands until the attorney of the plaintiffs called on him for it in July, 1834; that he told the attorney, that as between Andrews and him, it was considered paid ; that the attorney informed him, that this was a business between the debtor and him, and that he had no right to return satisfaction of the execution after the return day was passed ; and that although the return he made was dated back to Jan. 1, 1829, it was in fact made in July, 1834. The Judge refused to admit the deposition. The defendant then offered evidence to prove, that at a time subsequent to the return day of the execution, and before the return was actually made, that said Mason received the amount of the judgment, and that he wa then agent of the plaintiffs, and had authority to act in the premises and receive payment for the plaintiffs ; but not hov hy shewing any direct authority from the plaintiffs, or their attorney, but by calling sheriffs, deputy-sheriffs and counsellors io prove, that officers having executions in their hands after the ¡uí'iru day, are considered as having such authority. The Judge xcluded the testimony offered for that purpose ; and ruled, that the officer’s return was conclusive.</p> <p>Thereupon the defendant was defaulted ; and if the ruling of the Judge w'as incorrect, the default was to be taken off, and the action was to stand for trial.</p> <p>contended, that the officer had no right to make a return after the return day of the execution. This return therefore is wholly void. If the officer had enough authority to make a return on it, he certainly had enough to receive payment of it. It is competent to shew', when the return was actually made, or that the return was made in ignorance of the law, or through inadvertency. Commonwealth v. Bullard, 9 Mass. R. 270.</p> <p>The return, made when this was, is no evidence that the judgment was unsatisfied. If the judgment is actually paid, it is satisfied ; and if unpaid, it is not; and whatever return is made on the execution is of no importance. When an officer has once sold property on an execution, there too is a satisfaction of the judgment, and no return made by the officer afterwards can give force to a satisfied judgment. Ladd v. Blunt, 4 Mass. R. 402. And if satisfied, no action can be supported on it. But the evidence offered was admissible. It contradicts no return. It shews when the words, called a return, were actually written. Being written on a paper, once an execution, but under which the officer had no power to act at the time, it was no return. If the suit had been against the officer, then he might not be permitted to say, that it was untrue, but between third persons, the evidence was admissible.</p> <p>The officer kept the execution six years, and the plaintiffs must be considered as assenting to and ratifying his acts. The officer is competent to testify to any facts in relation to the execution, taking place after the return day. It has been decided in New York, that after the return day of an execution, an officer cannot enforce it, and therefore cannot make a legal return on it. Reed v. Pruyn, 1 Johns. R. 426.</p> <p>The first question is, whether the officer shall be permitted to contradict his own return, where third persons are interested, as in this case. It was decided, that he could not, so early, as in Gardner v. Hosmer, 6 Mass. R. 325. The plaintiff in a suit against the officer may shew the return to be false, but the officer cannot do it. Simmons v. Bradford, 15 Mass. R. 82; W'in-chell v. Stiles, 15 Mass. R. 230; Estahrook v. Hajigood, 10 Mass. R. 313.</p> <p>To permit his deposition to be used to contradict his return, would be much worse, than to permit him to alter it. When he testifies as a witness, he is not subject to the same liabilities, as when he makes a return.</p> <p>As to its being no return, because made after the return day, it was made on the execution during the sitting of the Court to which it was returnable ; and a return, that an execution is unsatisfied must necessarily be made after the officer bad no power to collect tlie execution. But if the officer bad no power to make Ibis return, because tbe return day was passed, tlien be had, for the same reason, no power to discharge the execution or to receive tbe money for tbe creditor, and the judgment remains unsatisfied and in force.</p> <p>The officer never was the agent of tbe plaintiff at any time. He acted only under the authority of tbe law ; and proof of what deputy-sheriffs and lawyers supposed tbe law to be would be little better, than suffering them to make a law for each case. The case, Green v. Lowell, 3 Greenl. 373, is conclusive on this point.</p>

<p>This was an action of debt upon an arbitration bond. The parties agreed on a statement of facts ; and further agreed, that the Court should draw any inferences from the facts agreed, which a jury might reasonably infer from them. From the statement, it appeared that the parties agreed, by a sealed instrument, to submit to arbitrators all claims, which they had against each other ; the claims for and against Merrill & Higgins to be considered, as Merrill’s own. And they further agreed, that the costs of former cross actions between them should also be taken into consideration by the arbitrators, but the submission was entirely silent in relation to costs of the reference. They mutually agreed to pay any sum awarded against them, forthwith as soon as the award should be made known to the party against whom it was made.</p> <p>The arbitrators made out and signed an award, that the plaintiff should recover of the defendant fifty-five dollars and thirty-three cents in full of all claims and demands aforesaid. In this award, dated Sept. 9, 1834, there is no mention of costs. After-wards, on the same day the arbitrators made and signed, another writing certifying, that of the said sum of $55,33, the sum of $7,78, were for costs and expenses of the reference, and $47,55 were for debt and costs of the former suit.</p> <p>Both the papers were shewn to the parties, and before the commencement of this suit, the plaintiff demanded of the defendant the sum of $47,55.</p> <p>1. The plaintiff claims judgment for the full amount. No affidavits, or testimony of the arbitrators are admissible to vary, or impeach an award under their hands ; nor can an award, regular on its face, be in any mode impeached, or inquired into, except for misbehaviour or corrupt conduct of the arbitrators. If arbitrators exceed their powers, the excess must appear on the face of the award. 1 Dane’s Ab. 127; The leading case is Newland v. Douglas, 2 Johns. R. 62, confirmed in Barlow v. Todd, 3 Johns. R. 363. In our own State, the Court have sanctioned the principal positions stated above. North Yarmouth v. Cumberland, 6 Greenl. 21. Where the reference is in any way under the control of the Court, so that the report can be recommitted, the Courts have adopted different rules from those acted upon in common law awards, where no recommitment can be made.</p> <p>2. The paper accompanying the award is no evidence in the case, and should be wholly rejected. 5 Pick. 291; 3 Greenl. 85; Iienfree v. Bromley, 6 East, 309.</p> <p>3. But if the paper is admissible, it shews how much is debt, and how much costs of reference. It is good then for all but the costs, for where an award is good for part, but not for the whole, judgment will be rendered for so much, as is good. Addison v. Grey, 2 Wilson, 293; Willes’ It. 64; Same, 253; 2 Bos. Pul. 371; 3 East, 18; Gordon v. Tucker, 6 Greenl. 247.</p> <p>If the paper is not admissible, then the award is good for the whole ; if it be admissible, it separates the costs of reference from the rest, and then we are entitled to judgment for all but the costs of reference.</p> <p>fire action is founded on the award; and if that is duly made, tir <v;tion may be supported ; but if not made according to the c<4 T,uLs;,ion and within the power given in the submission, the action must fail. A fatal objection is, that the arbitrators have included in their award, in one gross sum, the costs of the reference, fo, which they had no authority. Where they award two distinct, sums, and have authority, as to one, and none, as to tho oth-ii, ¿to, ixlloii muy be imf,¡Veined for the sum awarded within the submission ; but wiiei"1 íí jc¡ u !,e sum. there can be no separation, and the award in wholly void. Gordon v. Tucker, 6 Greenl. 247; Thrasher v. 2 N. II. Rejpts. 429. .</p> <p>The paper signed afterwards is admissible to shew, that the referees exceeded their authority. Bean v. Farnham, 6 Pick. 269. But it cannot be taken as part of the award. When the referees had once made up and signed the award, they had no power over it, any more than mere strangers. Woodbury v. Northy, 3 Greenl. 85. Even a Court of Equity either enforces an award, as it is made, and as it appears on its face, or sets it wholly aside. 11 Wheaton, 446. The well settled rule is this, where the award is entire, or an entire sum is awarded to be paid, if the arbitrators have exceeded their authority in any part, the award is void, and cannot be enforced. Peters v. Pierce, 8 Mass, jR. 398 ; 5 East, 139; Watson on Awards, 161 ; 1 Wash. Cir. C. R. 56; 7 Serg. & Rawle, 230; 1 Dane’s Air. 272.</p>

<p>Building upon, or enclosing, the land of another, without right, is constructive notice to the owner of an adverse claim to it.</p> <p>But if one enter upon another’s land by his consent, or as his tenant; the owner is not disseised, but at his election, until he has had notice, that the occupancy is adverse, or there has been some change in the nature of such occupancy calculated to put him on his guard.</p> <p>Declarations to a stranger to the title by the lessee, that he holds adversely to the owner, is not evidence of a disseisin.</p>

<p>Where a mortgage is made to husband and wife, for a consideration moving from him, conditioned to support them and the survivor of them during life ; the husband may maintain a writ of entry on the mortgage in his own name without joining the wife.</p> <p>The demandant, in a writ of entry, may offer in support of his action two inde-pendant, and even inconsistent, titles to the premises demanded.</p> <p>Thus, where the demandant shews title in himself, and the tenant then produces against him a deed from him to the grantor of the tenant; the demandant is at liberty to offer evidence to show, that the deed from him was void in law, and at the same time rely on a mortgage made to him by the tenant, claiming title from him under the deed alleged to be void.</p>

<p>This was a writ of entry on the demandants’ own seisin, and was tried, upon tbe general issue, in the Court of Common Pleas, before Smith J. The demandant claimed title under the levy of an execution in favor of the Thommton Bank against Halsey Healey, and a deed from the Bank to him. The writ was dated January 23, 1830 ; the officer’s return, attaching the demanded premises, was dated the same day; the judgment was rendered at the August term of the C. C. Pleas, 1830; the execution was levied on the 10th of September, 1830; and the levy recorded, on the 10th of December following. The tenant claimed title under the levy of an execution in favor of John Dresser upon the same premises, as the property of said Healey, and a convey-anee of Dresser’s interest to him. The writ in favor of Dresser against Healey was dated on the eighteenth day of January, 1830; the attachment of the premises by the officer on the writ was dated the eighth day of the same January; judgment was rendered at the April Term oí the C. C. Pleas, 1831; the levy was made within thirty days and seasonably recorded.</p> <p>The counsel for the tenant contended, that the attachment made on the writ in favor of Dresser was valid, and being prior to that of the Bank, would hold the estate.</p> <p>The Judge ruled, that it did not appear by the said return, dated the 8th of January, 1830, which was before the date of the writ, that the attachment on Dresser’s writ was prior to the attachment made on the writ of the Bank. The tenant then offered to prove by the attorney, who made the writ, that the writ of Dresser was actually made on the 18th of January, and by him handed to an officer on the same day with directions to attach immediately all the real estate of said Healey; and that on the back of the writ, where the return now is, it was then entirely blank, without any words or figures thereon. This evidence was rejected by the Judge. The tenant then moved for leave to be granted to the officer to amend said return, so that it should read 18th, instead of 8th of January. But the Judge overruled this motion.</p> <p>The counsel for the tenant then requested the Judge to instruct the jury, that the levy of the Bank against Healey, bearing date the 10th of September and not having been recorded until the 10th of December, was not in season, and was void, as it respected those claiming under the levy of said Dresser. The Judge declined so instructing them, and did instruct them, that the levy of the Bank was seasonably recorded, and that the demandant was entitled to recover.</p> <p>A verdict was returned for the demandant.</p> <p>To all these rulings and opinions of the Judge, the tenant excepted.</p> <p>contended ; that as both parties claimed from Healey by levies, and the tenant’s attachment was first in the order of time, this must prevail if valid. The return of the officer is, that by virtue of the within writ he attached the land. Tills is made under oath, and is to be treated as a record, and cannot be shewn to be untrue In controversies between third persons. But the date of the writ is immaterial, when the Court, as in this case, was rightly described without it. If there had been no date, or an impossible one, it would not have made the writ or the attachment void. It is not necessary, that the writ should pursue the precise outline of the form of writs given in the statute. Cook v. Gibbs, 3 Mass. IL 193; Wood v. Moss, 11 Mass. M. 276. The date is immaterial, and the return fixes the true time, when the writ was sued out, and the attachment holds good from that time. Even the lest of a writ by the first Justice, although a provision of the constitution of Massachusetts, was there held to be mere matter of form. All irregularities in the process must be taken advantage of by motion or plea of abatement in the first stages of the process. Ri/pley v. Warren, 2 Rick. 592; Prescott v. Tufts, 7 Mass. R. 209. This error in date was nothing more, than an irregularity, which the defendant in the action might waive, and did waive by appearing in the action, and then suffering the judgment against him.</p> <p>The motion to amend is not abandoned, though considered of less importance, than the other objections to the Judge’s decisions.</p> <p>The levy of the Bank was not recorded in season. The words of the statute are “ within three months.” As the levy could be recorded on the same day that it was made, that must be included. The tenth of December therefore must be excluded, or the creditor would have more than three months. Presbrey v. Williams, 15 Mass. R. 193.</p> <p>remarked, that the case shew, that the main ground now assumed in defence was wholly different from that taken at the Common Pleas, and wholly inconsistent with it. If the Court of Common Pleas decided rightly, on the case before them, there should be judgment on the verdict.</p> <p>The return was made on the eighth of January, before the writ was made, on a mere blank. If amending a writ, so as to introduce any new cause of action destroys an attachment, much more should making the whole writ do it. Whatever may be written on a blank piece of paper by an officer, it is no return.</p> <p>The attempt to prove the officer’s return wrong in date is abandoned, and a directly contrary course now taken.</p> <p>Nor is the motion for leave to amend scarcely insisted on. The authorities are clear against the right. Means v. Osgood, 7 Greenl. 146 ; Thacher v. Miller, 18 Mass. R. 270.</p> <p>The day on which the levy was made cannot be included, because the levy might be made on the last moment of the day. The statute contemplates, that the creditor should have his full three months.</p> <p>But the tenant- has no right to contest this question. His attachment was void, and his levy was not made until long after ours had been recorded. McLellan v. Whitney, 15 Mass. R. 137.</p>

This was an action of trespass on the case. The first count alleged, that the defendants, being common carriers between Clinton and Jlallowell, received from the plaintiff, on board tbeir boat, to be safely carried, 758 bushels of oats, to bo delivered at Mallowell; and that the defendants did not deliver the same, but carried them in so negligent and careless manner, “ that the boat was filled with water, and the oats were lost.” The second count was in trover for the oats.

This was a complaint under the statute for flowing the complainant’s land, by means of a dam, at the outlet of Flying Pond, in Vienna.

This was an action of assumpsit upon a note, dated January 13, 1834, signed by Thomas Pinkham, as principal, and by the defendant and one Taber, as sureties, whereby they jointly and severally promised to pay the plaintiffs, or order, $500,00 in fifty-seven days and grace. The note was produced, and the signature admitted. The defence was, that the plaintiffs had discharged the sureties by giving credit to the principal.

<p>A written authority from one to another to give a lease to a third person, on terms previously offered in writing by such third person, is not in itself a lease.</p> <p>Thus, where C. by letter requested II. to obtain from T. his best terms for the rent of C’s store; and T. made a proposition in writing to H. stating the terms on which he would take it for two years, a copy of which was sent by H. to C., who thereupon addressed a letter to H. authorising him “ to conclude the business accordinglyand II. made only a verbal agreement with T. that he should have the store on the terms offered; it was held,, that this did not amount to a written lease, or agreement with T., that he might hold for the term.</p> <p>A tenancy at will may be determined at any time at the will of either party; and notice to quit the premises, or of surrender thereof, does of itself terminate the tenancy at the time the notice is given.</p> <p>Where a tenancy at will is determined by the lessor, the tenant is entitled to the emblements, and to a reasonable lime only for the removal of Ms family and property, with the free ingress, egress and regress for the enjoyment of these rights.</p> <p>The process to obtain possession under the statute of forcible entry and detain-er, may be maintained against a tenant at will, at the expiration of thirty days from the time notice in writing to quit the premises is given. Under that statute notice in \writing to quit, terminates the tenancy at will; and thirty days after such notice is given is the reasonable time allowed to the tenant to remove.</p>

This was a writ of entry, dated July 21, 1835, in which the demandant counted on his own seisin and a disseisin by the tenant. The general issue was pleaded, and a brief statement made by the tenant stating, that he was not at the time of the commencement of the action tenant of the freehold.

This was an action of assumpsit for the support of a pauper named Alice Wade. The question in dispute was, where was the legal settlement of the pauper, which was alleged by the plaintiffs to be in Windham. The pauper was legally married to John Wade on the 4th of November, 1816, at the house of her father, Timothy Wright, in Lewiston.

This was an action of assumpsit for contribution upon the principles of general average, against the defendants as owners of the schooner Herald arising from a jettison on the high seas of the plaintiff’s goods, shipped on freight; on board said vessel. It was admitted, that the defendants were owners of the schooner, and it appeared, that she was employed as a general freighting vessel between Hallow cU and Boston.

Assumpsit for money had and received. The plaintiff produced in evidence an agreement signed by the defendant and Thomas W. Smith, dated August 10, 1829, by which the defendant agreed to purchase for about $ 1400,00 of the plaintiff and said Smith two undivided tenth parts of a certain tract of land, which they and others had before contracted to purchase of the agent of the Bingham heirs; and to give them each a bonus of one hundred and fifty dollars, and to pay them the…

The action was trespass for taking the plaintiffs’ mare, and the writ was dated June 10,1834. The defendant pleaded the general issue, with a brief statement, that as a deputy-sheriff, he took the mare, having attached the same on a writ in favor of J. Her-rin & al. against Israel Winn.

In an action of debt on a jail bond, conditioned that Ballard should not depart beyond the prison limits, unless discharged by law, the defendants proved by the proper evidence, that Ballard was discharged by two Justices of the Peace and of the quorum, who made a regular certificate thereof, stating therein, that the plaintiff’ was legally notified of the time and place of taking the oath.

Assumpsit, for the use of a ferry and ferry-boats from April 13, 1S33, to May 17, in the same year.

EXCEPTIONS from the Court of Common Pleas. This is an action of the case against the executors of the late Benjamin White, formerly Sheriff of the County of Kennebec.

Trespass quare clausum for breaking and entering the close of the plaintiffs in Waterville, between the 1st and 16th of September, 1833, ploughing up their soil, and with cattle treading down their grass, and destroying their produce. The defendant, Orrin Ié. Crommet, justified as a surveyor of highways for that year in entering upon the land in question, as a public highway, and making a town road, and the other defendant justified, as acting by his direction.

Exceptions from tho Court of Common Pleas. This was an action of the case commenced by John Gilman in his life-time against the said Cram, for the December Term of the Court of Common Pleas, L833, wherein the said Gilman in his declaration set forth, that whereas at said Augusta, before the eighth day of April, 1833, one John Wells had instituted a suit in the Court of Common Pleas for said county, in the name of one John Reed, as nominal plaintiff against the said Gilman,…

From the disclosure of the trustee, it appeared, that the defendants, on the fourth of March, 1835, assigned to the trustee, for the benefit of their creditors, certain property, including the schooner Adventure. Without this schooner, the property was not sufficient to pay those creditors, who had executed the assignment before the service on the trustee ; but including her, there was a balance in the hands of the assignee after satisfying those claims.

The action was on a policy of insurance whereby the plaintiff caused $2000,00 to be insured on his house, furniture, barn, shed and hay, for the term of one year from the 12th of December, 1S32, and the plaintiff averred a total loss of the property insured within the year by fire. Certain conditions were annexed to the policy in reference to which it was made.

Exceptions from the Court of Common Pleas. The action was debt, brought Oct. 31, 1S35, by the plaintiff, as Division Advocate of the second division of the militia, to recover the amount of a fine and one half of the costs awarded against the defendant by the sentence of a court martial, under the provisions of the “ act to organize, govern and discipline the militia of this State,” passed March 8, 1834.

ExcuptioNS from the Court of Common Pleas. This was an action of waste: The plaintiff alleged, that the defendants were assignees of a tenant in dower, and that he was the owner of the reversion ; and tbat tbe defendants had made waste and destruction of the premises by suffering the dwelling-house to go to ruin and decay, the windows to be broken, the shingles on the roof to become rotten, &c.; and that the defendants had thereby forfeited the place wasted, together with…

This was a writ of entry on the plaintiff’s own seisin within twenty years, the writ being dated June 12, 1832, to recover a strip of land fronting on seven mile brook in Anson, of the width of eighteen rods and running back half a mile.

<p>The demandant claimed dower in certain real estate in Mercer, of which the late husband of the demandant, now deceased, was alleged in her writ to have been seised during the coverture. The plea was, that the husband was not seised during the covert-ure of such an estate, as would entitle the demandant to dower therein. In support of the action the demandant introduced an agreement for the sale and purchase of the land, signed by the demandant and tenant, dated August 4, 1832, in which are found these words: “ the reversion of the widow’s dower therein, subject to and expressly reserving her, the said Mary’s right of dower in the premises.” Also, a deed from the demandant to the tenant, dated August 6, 1832, as executrix of the will of her late husband, and conveying all the testator’s “ right, title and interest in the premises, if any,” c< reserving and excepting her right of dower in said real estate.” The demandant also gave in evidence the copy of a license from the Judge of Probate, to sell said estate. It was admitted that the demandant made a seasonable demand of her dower of the tenant. The tenant proved, that on the 10th of May, 1804, the husband conveyed the premises wherein dower is now demanded to one Curtis, taking back a mortgage to secure the consideration. It appeared that Curtis took possession of the land, being then wild and uncultivated, and while thus in possession, paid to the husband the sum for which the land was mortgaged. Subsequently to this the coverture took place. It was contended by the demandant, that upon this evidence the tenant was estopped to deny the seisin of the husband of an estate whereof the demandant was entitled to be endowed. A verdict was taken for the demandant, subject to the opinion of the Court. If in their opinion the tenant is thus estopped, judgment is to be rendered thereon ; otherwise the verdict is to be set aside, and the demandant become nonsuit.</p> <p>One point only is presented. Is the tenant estopped to deny the seisin of the demandant’s husband.</p> <p>The case shows, that the husband of the demandant had not the slightest pretence of title during the coverture. Long before the marriage, the estate had been conveyed, and a mortgage taken back; but the mortgage money had all been paid, and the mortgagee never entered under his mortgage ; nor was he in any way in possession. If she had been married before the conveyance to Curtis, still she would not have been entitled to dower, because it was then wild and uncultivated land.</p> <p>The doctrine of estoppel is not to be favoured, but carefully to be restricted. Leicester v. Rehoboth, 4 Mass. R. 180; Bridge-water v. Dartmouth, ibid. 273 ; 5 Dane, 380.</p> <p>Shall the demandant by her own act, as executrix, and because the tenant has received her writing and deed, have dower in land, wherein her husband never had the least interest during the coverture ?</p> <p>Nothing passed by that deed to the tenant, because the testator had before sold to Curtis; nor did he, or could he, take possession under it. There were no covenants of warranty in the deed giving him any remedy for the incumbrance of dower or for any defect of title. The deed was a mere naked release, and the description of the property was such, that if there had been covenants, they would have been useless, because, nothing but the testator’s right, if any, was conveyed. By such deed no relations would.arise between the parties, by which one is placed in subordination to the other. 4 Greenl. 214 ; 7 Wheat. 547. The principle on which estoppels are allowed is to avoid circuity of action ; and where there is no circuity, there is no estoppel. 4 Dane, 494; 1 Church’s Dig. 385. By allowing the estop-pel in' this case it will promote suits, for the demandant cannot hold against. Curtis’ claim. Allen v. Sayward, 5 Greenl. 227. One in possession has a right to purchase claims to secure his title without subjecting himself to any liabilities, 4 Greenl. 219.</p> <p>In Allen v. Sayward, 5 Greenl. 227, it was held, that one giving a release, with covenants of seisin, might set up an after acquired paramount title in himself. In this case she sells, as executrix, and reserves to the widow. If she had any right to dower, the executrix could not sell it. Anything reserved in a deed must be from what would otherwise have passed by the deed. For that reason it cannot operate as an estoppel. Nothing but his interest would pass, if any, by the deed, for nothing more was described, as conveyed. But dower is not reserved, but the mere right to dower, which in this case was nothing. '■</p> <p>The tenant discloses no title, but under the husband of the de-mandant, and the case is to be considered, as it would have stood, if the husband had conveyed before his death, instead of his executrix afterwards. If the tenant had shewn a paramount title from another source, perhaps the case might have been different.</p> <p>The tenant is estopped by the agreement to purchase, in which dower is reserved. It is said, that the words, if any, shew doubt of title in the demandant’s husband. But when he takes a title under it by which he holds the land, for he shews no other, he cannot dispute the title of the testator. The reservation in the agreement shows, that the tenant so understood the title. Johns v. Church, 12 Pide, 557 ; Willard v. Nason, 5 Mass. R. 240.</p> <p>But the tenant is conclusively estopped by the deed. 2 Greenl. 226 ; 6 Greenl. 243 ; 1 Fair/. 383 ; 6 Johns. R. 290; 10 Johns. R. 292; 17 Mass. R. 162. As it respects estoppel, there is no distinction between deeds of warranty and of quitclaim. The tenant is estopped to deny the seisin of the husband by accepting the deed equally, whether the deed be warranty, or quitclaim. Hains v. Gardner, 1 Fairf. 383; Fairbanks v. Williamson, 7 Greenl. 96.</p>

This case was a complaint under the statute, for flowing the complainant’s land in Solon, by means of a dam erected by the respondent for the purpose of working his mill. The respondent claimed the right to flow the land without payment of damages.

The case came before the Court on an agreed statement of facts. The action was assumpsit, upon an account annexed to tbe writ, for materials found and labor furnished in the building of a bridge across cold stream in the town of Cornville, to the amount of $26,05.

<p>This case was on a writ of review. The original action was brought by Trafton against Fling and James Conner, on a contract dated September 30, 1826, in which Trafton bad agreed to build a mill for Fling & Conner, and they agreed to pay him $¡>1 10,00 in the following June, and $¡>50,00 in stock in one year from the next October. There was an account annexed to the writ of $62,76. The action was commenced in July, 1827, and continued until the June Term, 1828, when Fling was defaulted, and Trafton and Conner agreed to refer the action, as far as related to said Conner. The referees awarded, that Conner should pay Trafton $104,00, damage, and no costs, and Conner paid this amount to Trafton. At the next term of the Court, the rule of reference was discharged, and the name of Conner by his consent was stricken out of the writ, that judgment might be rendered against Fling. This was done without the knowledge of Trafton, but by the assent and upon the motion of the then attorney of Trafton of record, but who at that time acted for the benefit of Conner, intending that Conner should have the benefit of the judgment, which, according to the attorney’s impression, he stated to the court. Judgment was made up in the handwriting of the same attorney against Fling ior $ 175,51, damage, and $15,80, costs. Afterwards Conner took out an execution in Trafton’s name, without his knowledge, and gave it to an officer who collected thereupon $100,00 in cash, and took the note of a third person to Conner for the residue. On the opening of the action of review for trial, before Weston C. J., Trafton moved, that the writ in the original action should be amended by restoring the name of Conner, so that the action might be tried in the manner in which it originally stood; but the motion .was overruled by the Court. Trafton also objected to the maintenance of the action of review in the name of Fling alone, and contended, that Conner should have been joined with him. This objection was overruled. The verdict was for the plaintiff. If in the opinion of the Court, the action cannot be maintained in the name of Fling alone, or if the name of Conner should have been restored to the original writ; the verdict was to be set aside, and a new trial granted.</p> <p>Fling became defaulted, and was subject to have an execution taken out against him for the whole amount of the demand, if Conner’s name had been stricken out. This was a larger amount than that for which execution issued. If then Conner had paid nothing, and his name had been stricken out, the plaintiff could not complain of any of the proceedings. Trafton might have taken out the execution and have enforced it. But tbe other defendant would not be defaulted, and after submitting the case to referees, be paid Traflon the amount they found due without costs. Traflon received this sum, and there the case ended, as it respected him. The attorney knew this fact, and all his authority to act for Traflon ceased from that time. In his after course of conduct, the relation in which he stood gave him no authority, and he did not pretend to act for Traflon’s benefit, but for another man. Unless then, because a man has once employed au attorney, he must be bound by all his acts after he has ceased to be such, this furnishes sufficient ground of defence. But the injury to the plaintiff did not arise from the acts of the attorney. The case shews, that it was not the attorney, but Conner, who took out the execution and enforced it. The whole was done without authority from the then plaintiff, or even from the man who had once been his attorney.</p> <p>The statute of 1821, ch. 57, giving the right for review, provides that the review must be prosecuted by all the original parties. Where a part of the writ has been stricken out, it is competent for the Court to restore it on a writ of review. Parker v. Parker, 17 Mass. R. 376. The declaration discloses a cause of action against two, and on trial against one the plaintiff must become nonsuit. 1 Chitty on PI. 29. The trial of the action of review should be had, as the action stood originally.</p> <p>The injury done to Fling, if any, was done by Conner, and the proper remedy is by an action against him. If Conner’s name can be restored, then justice may be done between all the parties: as it stands this cannot be done.</p> <p>When Conner paid the amount found due to Traflon, the whole contract was entirely cancelled, the suit ended, and neither party should have been entered. After the debt, §104,00, was paid, and after the action should have been dismissed, judgment was made up for the whole amount claimed and costs, and collected of the defendant. But it is said, that this was done without the knowledge of the defendant in review, and that he is not liable. It was done by the attorney of record of the plaintiff, and without whose action, it could not have been done. The defendant in review is responsible for his acts.</p> <p>After the amendment was made, the action stood, as if Conner’s name had never been in the writ. This amendment is to be treated like any other, and a trial on a review does not set aside all amendments. The record and judgment stand, Trafton v. Fling, and the review is to be tried, as the action stood at the time of the former trial or judgment. Sawyer v. Merrill, 10 Pide. 16. By permitting the amendment, it would be in effect granting a new trial between other parties, which is beyond the power of one Judge. Parlcer v. Parker, 17 Mass. R. 376.</p> <p>But if the name of Conner was inserted, and the trial was to be had with his name in, it could make no difference. The demand was fully satisfied by the payment of the award; and a joint promissor can make no use of a judgment which has been satisfied by himself. Hammatt v. Wyman, 9 Mass. R. 138.</p>

The only question made in this case, which came before the Court on a statement of facts, was, where was the settlement of the pauper ?

Exceptions from the Court of Common Pleas. The action was trover for a yoke of oxen, alleged to have been converted in August 1834. The plaintiff proved, that he was in possession of the cattle, and that they were taken by the defendant of whom they were demanded. The defendant then called Robert Banks, as a witness to prove the property of the oxen to be in him.

The action was debt, there being but one count in the declaration, founded on the statute of March J3, 1834, ch. 141, to recover two penalties alleged to have been incurred by the defendant for selling by retail, without license therefor, a pint of gin to one individual, and a quart of brandy to another.

<p>The person by whose direction an officer takes the property of one man, on an execution in his favor against another, is liable to the owner in trover.</p>

Exceptions from the Court of Common Pleas, March Term, 1836, Smith J. presiding.

This was an action of assumpsit. The writ bore date Jan. 5, 1834, and the action was entered at the June Term of the S. J. Court, and was then continued until the October Term following, when the trial was had before Emery J. At this last term the defendant moved, that the writ should be quashed, because it was issued on the Lord’s day.

The action was on the statute for supplies furnished Lewis Williams and family, alleged to have been paupers and to have had their legal settlement in Exeter.

<p>This was a writ of entry, brought to recover a certain piece of land, described in the declaration, in the city of Bangor, in which the demandants counted upon their own seisin, and upon a disseisin by the tenants. The general issue was pleaded and joined. It was admitted that Jam.es Dunning the elder, was an original settler in Bangor, and was possessed as sucli of the land in controversy, and of contiguous land. That he died prior to January, 1790, intestate, leaving as heirs, James Dunning, bis oldest son, and six other children. James, the son, was entitled by descent to two shares, and by deed, dated October 14, 1793, he purchased three other shares or eighths of Robert, William & Anne, his brothers and sister. Being thus the owner of five eighths, James Dunning, the son, did by deed of warranty, dated October 1, 1798, duly acknowledged and recorded •October 8, 1798, convey to Thomas Rice, one acre of the common land described, in severalty, by metes and bounds. Thomas Rice, by deed of warranty, dated the 11th, acknowledged the 12th of November, and recorded December, 30th, 1801, conveyed the same acre by metes and bounds and in severalty to Jonathan Hyde; and that land was afterwards known by the name of the Hyde acre. The demandants adduced in evidence, a deed dated June 1, acknowledged December 3, and recorded December 29, 1800, from James Dunning and wife to the demandants, conveying to them his five eighths of all the latid described, reserving and excepting out of said five eighths, the Hyde acre and two other pieces previously conveyed by him by metes and bounds. It appeared that Andrew Dunning, one of the children and heirs of James, the father, did by deed dated 5th of August, acknowledged August 16, and recorded August 25, 1800, convey his share or eighth, to the tenants. With a view to a partition of the common lands among the several tenants, they caused Moses Hodsdon to make a survey and plan of their lands in 1801. Thereafterwards there was assigned and conveyed to the tenants, by deed dated April 3, 1803, by their co-tenants, lot number 39 and other lots, and to the demandants, by deed dated April 2, 1803, there was assigned and conveyed by the other co-tenants, lot number 73 and other lots, and the deeds of release executed and received by the several co-tenants described the lots by number, according to a plan made by Moses Hodsdon, May 14, 1801. That plan was produced by the demandants at the trial. Moses Hodsdon, the surveyor, being called as a witness by the tenants, testified that he made and delivered the plan to Dudley, one of the demandants, in 1801. That at that time the south line of the lot marked as 73 on that plan, was not then drawn by him, nor were these figures made by him on that plan, that he did not again see the plan until October, 1834, when it had upon it delineated the figures 73, and the south line of that lot, but how or by whom made, he did not know; that the lot marked 73, was intended to delineate the Hyde acre, but was left incomplete by reason of a mistake discovered in regard to what was supposed to be the south line of that'acre, and that the other lots he did at the time plat and lay down. By a survey and plan made by Jedediah Herrick, by order of Court, verified by bis testimony, it appeared that there was between the lots thus platted and the true south line of the Hyde acre, a gore of land, and that part of the gore, which lay between lot No. 39, as laid down on that plan, and the Hyde acre was demanded in this action. Moses Hods don, further testified that the existence of this gore was discovered in 1802, whereupon a majority of the co-tenants, and he had no doubt that among them both the demandants, called upon him to make a new survey, and to average the gore among the lots between the Hyde acre and water street. This he stated he proceeded to do, and put down stakes at the corners of the lots thus enlarged; and that so far as he knew, the owners occupied according to the new survey. There was testimony tending to shew, that Dudley owned and occupied lot No. 40, south of 39, and also lot No. 34 and half of No. 35, being part of the five lots in the rear, according to the new survey. It appeared that the tenants claimed to extend lot No. 39, up to the Hyde acre, and that they had occupied the land now demanded, or a portion of it, by piling thereon lumber from time to time ; a considerable proportion however of the land demanded lay below high water mark. The trial was before Weston C. J., who instructed the jury, that if the demandants were not entitled to recover the gore demanded, as a part of lot No. 73, they were entitled to recover five-eighths of it, as common and undivided ; and that the division made by Hodsdon in 1802, and what followed by the parol direction of the co-tenants, did not create a several tenancy in that gore, unless where the tenants had held accordingly by an exclusive, notorious, and continued possession, for a period of more than twenty years, prior to the commencement of the action. The jury returned a general verdict for the tenants. If they were properly instructed, the verdict was to be set aside, and a new trial granted.</p> <p>For the demandants it was said, that the only question before the Court was, whether the instructions of the Judge were, or were not correct.</p> <p>Five eighths of the land in controversy were conveyed to the demandants, and three eighths to the tenants. It is here unnecessary to inquire, whether we are entitled to the whole, or to the five eighths, as in either case we are to have a new trial. The division deeds only conveyed such lots as were then marked and numbered on the plan made in 1801. The land now demanded was not then thus marked or numbered on the plan, and of course not conveyed by the deeds. As the deeds refer to the plan by numbers, the lines and distances marked on the plan have the same effect, as if they had been inserted in the deeds. If there was'a parol partition made afterwards, that was void, and there is no evidence in the report of any title in the defendants acquired by disseising the owners. There was only a little lumber occasionally placed on a small part of the land; and as to most of it, it is not even pretended, that there was occupation of any kind. The putting down of the stakes was not done to locate the land according to the plan or deeds, but for a purpose wholly different. The cases on that subject therefore have no application here. They cited Porter v. Perhins, 5 Mass. R. 233; Whitney v. Holmes, 15 Mass. R. 152.</p> <p>For the tenants it was insisted, that the plan made by Hods-don, and as made by him, was to govern. The report only shews, that the plan went into the hands of Thomas, but does not show by whom the alterations were made; especially, it does not shew, that the tenants assented. The location of the land was afterwards made and monuments erected with the intent to conform to the plan, and to complete any deficiencies therein. The actual survey and location upon the earth, and the erection of monuments according to the survey control the plan, although it is referred to in the deed. This was done before the division and partition by deed,-and must be decisive of their rights. But if the deeds had been made first and the survey and location made afterwards, the same result must have followed. There was no gore of land at that time, but the whole of the land held in common was conveyed to be held by them respectively in severalty. The instruction, therefore, that the demandants were entitled to recover five eighths of the tract, as common and undivided, was erroneous, as in the division no part of the demanded premises fell to their share. It was also wrong because the tenants would have acquired a title to it, if they had not obtained it otherwise, by the parol division made in 1802, and the possession under it since. It was occupied, as part of the lot on which the buildings stood, and actually used, as much as land of that description can be. After a lapse of twenty years, and occupation during the time, a deed is to be presumed. The demandants cannot prevail, because they stood by and saw the tenants making improvements, without asserting their right, for more than twenty years. The verdict ought not to be set aside, because the Court cannot avoid seeing, that in this case substantial justice has been done. They cited, 12 Mass. R. 469 ; 17 Mass. R. 207; 13 Pick. 267 ; 5 Greenl. 24; 7 Greenl. 61 ; 2 N. H. Rep. 197 ; 7 Johns. R. 238; 6 Wend. 467; 7 Cowen, 761; 1 Caines, 362; Mathews on Presumptions, 196; 3 Greenl. 316 ; Cowper, 217 ; 13 Pick. 251; 1 Phillip’s JEv. 121; 3 Paige’s C. R. 545; 1 Johns. C. R. 354; 4 Wheaton, 513; 1 Greenl. 219; 2 Greenl. 213.</p>

This was a petition for partition in which the petitioners alleged, that they were seised in common, with persons unknown, of three undivided eighth parts of an acre of land in the city of Bangor, described in their petition. Certain persons appeared as respondents, and severally pleaded sole seisin in certain portions of the acre, described in their pleas, and traversed the seisin of the petitioners alleged in their petition, and upon these pleas issues were joined.

This was an action of assumpsit for money had and received to recover $115,00, paid by the plaintiff to defendant on the 8th Dec. 1832, for the balance of an adjustment made at Boston, by Z. CooJc, a ship-broker, of general average and for specific charges on plaintiff’s property on board the schooner Jane, of Boston, of which defendant was master, and which had sustained damage and incurred expenses in unloading and reloading the cargo in GouldsborougJi harbor.

This was an action of trespass, quare clausum, for breaking and entering the plaintiffs’ close, in Plantation No. 26.

<p>This was an action of trespass, for assault, battery and false imprisonment at Calais, on the 19th of June, 1834. It appeared that on that day the plaintiff, who lived at Princeton about fifteen miles from Milltown in Calais, having been previously duly summoned, attended at that place as a witness, of which the defendant had notice, in a criminal prosecution before Jjuther Braclcett, Bsq.; that the investigation before the justice terminated about six o’clock in the afternoon, when the plaintiff was going to the residence of his son-in-law for his horse, which he had left there, with a view to return home, when he was arrested by the defendant. The plaintiff’s son-in-law lived in tho village of Milltown, a few rods from tho house of tho justice before whom the plaintiff attended, but in a direction opposite to that which led to the plaintiff’s home.</p> <p>The defendant, being Sheriff of the County of Washington, justified under an execution then in full force which had been put into his hands for service, which issued upon a judgment rendered against the plaintiff at the Court of Common Pleas for this County, at March Term., 1834, in favor of one Paschal Gilbert, which run against tho body of the plaintiff and in which he had not the privilege of bail. Under that execution the defendant arrested the plaintiff and committed him to the jail in Machias, in the County of Washington, but without the least harshness or severity, or the exercise of any more coercion or authority than his duty required, if he was then in its lawful exercise. The counsel for the defendant contended; first, that he was fully justified in making the arrest and commitment complained of in virtue of the precept in his hands ; secondly, if he was not thus justified, that he was not liable to the plaintiff in this form of action. Weston C. J., presiding at the trial, ruled against him upon these points, intending to reserve them for the consideration of the whole Court, and with a view to settle other facts in the case. The jury returned their verdict for the plaintiff. If in the opinion of the Court the defendant was justified under the execution aforesaid, or if liable at all, not in this form of action, the verdict was to be set aside and the plaintiff was to become nonsuit, Otherwise judgment is to be rendered thereon.</p> <p>That the defendant, acting under a precept in full force against the plaintiff, w'as bound to arrest him, and of course was justified in so doing. The officer is not the judge whether the plaintiff is or is not a -witness. The Court is to judge of that, and if he be arrested while attending on the Court, he will be set free by the Court. ‘ The officer is not to hear and judge whether the debtor is, or has been, attending Court, at the peril of paying damages, if he arrests, when he should not, and of paying the debt, if he does not arrest, when he should. But were it certain, that the plaintiff was privileged from arrest, it would not alter the case. An action of trespass cannot be maintained for thus obeying the mandate of the law. The privilege is the privilege of the Court, and not of the witness. Cameron v. Lightfoot, 2 Wm. Bl. Bep. 1190; Cameron v. Bowles, ibid. 1195; Tarleton v. Fisher, Doug. B. 646 ; Vail v. Lewis, 4 Johns. B. 450 ; Bay v. Hodgdon, 11 Johns. B. 433; Swift v. Chamberlain, 3 Conn. B. 531; 5 Dane, 186.</p> <p>But if any action can be maintained, trespass will not lie. Plummer v. Dennett, 6 Greenl. 421.</p> <p>That this was an arrest of the plaintiff, when he was not liable to be arrested, and that the report shew, that the defendant knew this fact. This is not a mere contempt of Court, but a violation of the rights and the liberty of the defendant. It was an illegal arrest, for which the plaintiff has a remedy by an action of trespass, on the principles of the decision in Illsley v. Nichols, 12 Pick. 276. It is like the case of an attachment of goods by breaking into a dwellingbouse, and arresting a person; where the party making the arrest is liable for the injury in an action. The injury is direct and not consequential, and trespass is the proper remedy. The case cited on the other side, Swift v. Chamberlain, 3 Conn. JR. 537, is an authority in our favor. The writ of execution was no protection to the defendant, and he is liable to the plaintiff in the same manner, as he would have been, if he had thus acted without any precept.</p>

This was an action of debt on bond, conditioned to abide an award and to deliver certain timber. The general issue was pleaded and joined, accompanied with a brief statement. The plaintiff adduced in evidence the bond declared on with the condition, tbe contract first made between tbe parties, the award referring thereto, and testimony shewing that the parties were notified of the award on its being made.

<p>If a statute give merely a new remedy, where one before existed at common law, it is cumulative ; and tlie party injured is at liberty to pursue either.</p> <p>If a statute give the same remedy, which the common law does, it is merely affirmative, and the party has his election which to pursue.</p> <p>But if a statute deny or withhold the remedy, which before existed at common law, tho common law right ceases to exist.</p> <p>Since the stat. of 3834, ch. 137, concerning pounds, &e., where parties are owners of adjoining improved lands, and the fence between them is defective and insufficient; and there has been no division of fence, or assignment of distinct portions thereof to each, by the fence-viewers, or by agreement of the parties, or by prescription; no action of trespass can be maintained by either of such owners against any owner of cattle lawfully on the opposite side of such fence, and breaking into the inclosure through such insufficient fence.</p>

Thespass, for taking a quantity of hay on township No. 18. The plaintiff proved that he cut seven and a half tons of hay on said township, and that it was taken by defendant. The defendant by his brief statement justified the taking, as the agent of John Lemist, who it was agreed was the owner of Scott’s meadow, on which the hay was cut, at the time of the cutting.

<p>This was an action of trespass for a certain quantity of bay cut on the Muntly brook meadow in the Indian township in this County, and was tried before Weston C. J.</p> <p>It appeared, that the plaintiff bad cut and stacked the hay on that meadow in the season of 1832, and that the defendant, who was a resident in the Province of iSew-Brunswick, and in the employment of one Mariis, a British subject, took and carried away the hay the winter following. It did not certainly appear, when the hay was cut, but it was not proved to have been cut in the month of August. The plaintiff claimed a right to cut and take the hay by virtue of a reservation in the permit, license, or sale, dated July .14, 1834, given by James Farnsworth, the Indian agent, to one Dudley. By this the agent gave Dudley “ permission to go on to the Indian township and cut and commit to his own use all the grass usually denominated meadow hay.” The writing contained these provisions. “ It is further understood, that the said Dudley is to permit James Boies to cut two small meadows on the Muntly brook for a reasonable consideration,” and “ the said Dudley is not to allow any foreigner to have any control directly or indirectly of the management of said premises under the penalty of being considered a trespasser from the beginning.” On the 29th of August, 1832, Dudley sold to the defendant “ all his right and interest” by the permit or license of tho Indian agent of July 14, 1832. It appeared, that the plaintiff, prior to the 29th of August, 1832, had offered to pay to Dudley a reasonable compensation for the hay reserved for him, which Dudley■ declined to receive. The defendant relied on the transfer of Dudley to him, of August 29, 1832. The jury returned their verdict for the plaintiff, which was to be set aside, if the Court should be of opinion, that the action could not be maintained.</p> <p>The plaintiff brings an action of trespass, and to sustain it, he must have a right to the immediate possession of the property, and must show a direct and immediate tortious taking. 5 Dane, 533; Graham v. Peat, 1 East, 244. The most favorable case for the plaintiff is, that Farnsworth, the Indian agent, sells the grass on the Indian township to Dudley, with this provision, that Dudley should permit Boies to have this grass for a reasonable, compensation to be paid by him to Dudley. The grass then is Dudley’s, and he did not sell it to Boies, but to Maries, under whom the defendant acted. The tender by the plaintiff to Dudley did not vest the grass in him. The assent of Dudley was necessary, and that assent was never given. No person can maintain an action of trespass in consequence of a contract between two other persons. Hornbeck v. Westbrook, 9 Johns. B. 73. A reservation in a deed to a stranger is void. A price was to be agreed on, and a sale to be made, before the plaintiff could acquire a property in the grass. 4 Dane, 109; Co. Lit. 47; Hunter v. Bice, 15 East, 99. The case finds, that the plaintiff offered to pay Dudley for the grass, but this was not a tender, or equivalent to it. If a tender would have transferred the property, it was not made. Brown v. Gilmore, 8 Greenl. 107*</p> <p>The statute says, that no grass growing on the Indian township shall be sold to a citizen or subject of a foreign country. Blake was but a mere resident in New-Brunswick, but if he was a British subject, and the contract void, it left the property in Dudley, and did not pass it to the plaintiff, and he cannot maintain the action.</p> <p>By the contract between the agent and Dudley, the latter was not entitled to this grass, except on the contingency, of the failure of the plaintiff, to whom it was reserved, to comply with the condition. The plaintiff did comply with the condition by offering to pay, as required in the contract. The reservation was binding before upon Dudley, and he could not avoid it without the consent of the other party, the agent. The offer to pay was an assent to the terms, and a compliance with them, on the part of the plaintiff. Dudley could derive no title to this grass, by violating the contract and disregarding his duty. If the defendant stood in the place of Dudley, he would have no defence. He must make out a title to take this hay first. He fails to do this, both because the acts of the parties gave the title to it to the plaintiff, and because Dudley had forfeited all right, if he ever had any, by the violation of the terms and spirit of his contract.</p> <p>The possession of the hay gives the plaintiff the right to maintain trespass against any, but the true owner. The defendant and Maries, under whom he acted, are British subjects, and could derive no title to this grass even from the strongest writing the agent himself could have given. The stat. of 1824, ch. 271, positively forbids such sale. But the contract and the law here both forbid it, for the agent inserted the provision of the statute on this subject, as a part of the contract. A contract made in violation of a statute is void-. Armstrong v. Toler, 11 Wheat. 298; Wheeler v. Russell, 17 Mass. It. 258.</p>

Exceptions from the Court of Common Pleas; This was an action of assumpsit on a. note of hand dated March 19, 1824, for $31,78, payable on the 19th of the following September, given by the defendant to Samuel Gooch or order and witnessed by one Shorey; and not endorsed by the payee.

This was a writ of error brought to reverse a judgment of the Court of Common Pleas. The original action was trespass brought before a justice of the peace, and carried by appeal to the Court of Common Pleas. By the action the Middle Bridge proprietors, by their treasurer, sought to recover of Brooks a penalty of not less than five nor exceeding fifty dollars, under the special stat. of 1827, ch. 357, for forcibly passing their Bridge without paying the legal toll.

Exceptions from the Court of Common Pleas. This action is trover for a bed, bedstead and bedding of the value of $50,00 whicb are alleged to have come into the possession of the defendant on the 21st day of January, 1806, and afterwards, on the 17th day of February, 1835, to have been wrongfully converted by him to bis own use.

<p>W&ere the defendant and others subscribed a fund towards the support of an academy, with an understanding among themselves, that they should be repaid, when there were sufficient funds for that purpose; and this fund was appropriated by them to the erection of a building for an academy; and after-wards an academy was incorporated and the building was conveyed to the corporation without any stipulation, that they should pay for the building; the corporation made use of the building for many years, and during the time divided a sum among the original subscribers; the corporation afterwards sold the building and appropriated the proceeds of the sale to the erection of a now building. It was held, that the defendant could not recover of the corporation any sum for rent of the building, pr for the proceeds of such sale.</p>

Thompson, in bis petition for partition, claimed three undivided fourth parts of a tract of land in Eden. In a statement of facts, referring to the petition, execution and levy, it was agreed, that the petitioner was entitled to two fourth parts: and if there was a fatal defect in a levy upon another fourth part, so that no title passed by that levy, then that he was entitled to an additional fourth part.

Exceptions from the Court of Common Pleas. The process in this action was a writ replevying a person, in which it was alleged, that the plaintiff was taken and detained by the defendant by duress.

This was an action of assumpsit brought by the plaintiff as endorser, against the defendants as drawers of two bills of exchange, the same having been protested for non-payment. It was proved that the defendants as partners in trade, drew the first bill declared on, as follows: ■ “ Bangor, Nov. 12th, 1827 — At four months date, pay the order of Wm. Davenport six hundred dollars, value received, and charge as advised to account of your ob’t servants. Valentine and Davenport.

<p>This was an action of assumpsit on a note of hand given by Daniel Morrill, deceased, to the plaintiff’s intestate. The plaintiff claimed to charge the defendant as executor in his own wrong, and offered proof tending to shew, that about twelve years before the said Daniel’s decease, he conveyed to the defendant, his son, a valuable farm, and stock of cattle, upon the consideration that the defendant promised to support the deceased and his wife during their natural lives. At the time of this conveyance the demand on which this action was founded and some other debts were due and owing by the said Daniel, deceased. Parris J., who presided at the trial, instructed the jury upon the principles of law applicable to fraudulent sales; and among other things stated to them, that the property conveyed to the son was liable in his hands during the father’s lifetime, for the payment of this debt; but that if the son during the lifetime of the father sold and disposed of all the property conveyed to him by the father, and none of it remained in his, the son’s, hands at the father’s death, and he did not thereafter intermeddle with it, he could not be charged as executor in his own wrong.</p> <p>If the instructions were wrong the verdict, which was for the defendant, is to be set aside, and a new trial granted.</p> <p>A fraudulent conveyance or gift of property by a person deceased, in his lifetime, does nbt prevent the fraudulent donee from being charged, as executor de son tort, in a suit, by a creditor of the deceased. Osborn v. Morse, 7 Johns. R. 161; Hawes v. Loader, Yelverton, 196; Bac. ¿Lb. Fraud, C; 2 Wm’s Saund. 137, note 2.</p> <p>The only question in the case is, whether the instruction was not erroneous in saying, that the defendant could not be holden, when the identical personal property had been changed, and other property obtained in its stead. The personal property here bad been kept on the farm; and the property substituted for such as had been disposed of is to be considered, as belonging to the deceased, so far as creditors are concerned. Staples v. Bradbury, 8 Greenl. 181. The personal property is identified as the same by being on the farm.</p> <p>The defendant is also liable, because the real estate, fraudulently conveyed to him, remained in his hands and occupation. The law in England, where, land is not liable for the payment of debts, may be otherwise, but here there should be no distinction. The counsel commented on Mitchell v. Jhunt, 4 Mass. R. 654, and argued, that the decision of that case was not against him in principle.</p> <p>But intermeddling and taking the profits of real estate, even in England, makes the person doing it, liable, as executor de son tort. 3 Bac. Ah. 22; Toller, 38 ; Starkie on Ev. 553 ; Osborn v. Morse, before cited.</p> <p>said that the case, Mitchell v. Lunt, 4 Mass. R. 654, was decisive of the case now before the Court. Neither the possession of land conveyed by the deceased, even if done in fraud of creditors, nor owing a debt to the estate of the deceased, will make one executor in his own wrong. Here the case shews, that the property received from the father had been disposed of in his lifetime. The case, Staples v. Bradbury, cited for'the plaintiff, has no application to the facts here. There was no conveyance of the property by the father to the son, and by the contract, the son was to act as the father’s agent in respect to the personal property.</p>

This was an action of trespass originally commenced in the Court of Common Pleas, in which the plaintiff declared in two counts, first, quare clausum, and second, da bonis asportatis, and was brought into this Court by demurrer. The plaintiff on his motion, by leave of Court, struck out his second count, and proceeded to trial on the first only.

The action was debt on a judgment. The plaintiff took out his execution on the judgment and gave it to an officer, who committed Taylor, one of the judgment debtors, and one of the defendants in this action, to prison. While Taylor was so in prison, the plaintiff commenced the present trustee process, and summoned one Boivley, as trustee.

Tins was a writ of error brought by Prescott, the original defendant, to reverse a judgment of the Court of Common Pleas in an action commenced originally before a justice of the peace The facts appear in the opinion of the Court. cited stat. ch. 44, and argued that a division of fences by the fence-viewers could not be legal, unless they then divided all the fence on the whole line between the parties. contended, that the fence-viewers acted both legally and judiciously in…

<p>This was an action of assumpsit on account annexed to the writ, in which the plaintiff charged the defendant with a quantity of mill logs. The plaintiff offered evidence tending to prove that in April or May, 1834, he, through his agent, John Barter, jr., contracted to sell and did sell to the defendant the mill logs as charged at 10s Qd per M. estimated according to the survey of one Keating, making 188 M ; that the bargain was made at a place about one mile distant from where the logs were deposited, and in the forenoon, and that the defendant at the time of the bargain employed said Barber to haul out a portion of the logs from the river, where they then lay, on to the brow of the defendant’s mill, ■which the said Barber did in the afternoon of the same day.</p> <p>The defendant sawed and used about 50 M. only of said logs and left the remainder where they were at the time of the contract and refused to pay therefor.</p> <p>The defendant’s counsel requested Parris J. who presided at the trial, to instruct the jury, that if they should find that Barber did make an agreement with the defendant to sell him the whole quantity of logs at 10s 6¡i per M. estimated according to the survey of one Keating, making 188 M. as ho testified, that still, if there was at the time and place of making the same, no money paid and no memorandum in writing of said agreement, and no delivery of the logs at the time, or any part thereof, said place of agreement being a mile distant from said logs; that in such case the said agreement would be void by the statute of frauds, and no action could be maintained upon it, notwithstanding a portion of the logs might have been afterwards and on the same day delivered by Barber and received by the defendant.</p> <p>But the Judge charged the jury, that if they found, that the defendant purchased all the logs charged in the plaintiff’s account, and that the logs were all deposited at the same place, and that the defendant, at the time of the purchase employed Barber to haul them out, and he actually did haul out a portion of them on the same day in wriiich the bargain was made, and as soon thereafter as could be conveniently done, and that"they were received and used by the defendant under the contract, that this was such a delivery and acceptance as the law required, and that the defendant would be chargeable for the whole quantity sold.</p> <p>If the instructions were wrong, the verdict, which was for the plaintiff, is to be set aside and a new trial granted.</p> <p>The instruction requested by the counsel of the defendant should have been given, and that actually given was erroneous.</p> <p>The value of the logs was more than thirty dollars. There was no contract in writing, nothing was paid, and there was no delivery. The statute of frauds, ch. 53, <§> 3, of the revised statutes, is a sufficient answer to the plaintiff’s claim.</p> <p>The case finds, that the supposed contract was made in the forenoon, a mile distant from the logs, and that a portion of them were hauled in the afternoon ; and it is said, that this was an acceptance of the whole by the defendant; and that a part was received for the whole. The effect of such rule of law would be, that if a man had a whole cargo of goods, and sold one article, which was afterwards taken away, that he might charge and recover for the whole cargo. So in this case, if the charge of the Judge was right, then the plaintiff might sell a single log, and the defendant might take it away, and then the plaintiff might obtain a witness to prove a contract, and charge the whole thousand. But it was such evidence which the statute was designed to guard against. Hence the title of the act, “ an act,to prevent frauds and perjury.” The plaintiff should at least have furnished proof, that the defendant agreed to accept a part for the whole, before the instructions given would have been authorised.</p> <p>1. If any of the property sold be delivered within a reasonable time it is sufficient. Damon v. Osborn, 1 Pick. 476; 1 Dane, 652; 2 Selw. N. P. 871, and note.</p> <p>2. If such agreement be executed in part, the parties are not permitted to treat it as a nullity ; and acceptance within a reasonable time is sufficient. Davenport v. Mason, 15 Mass. JR. 92; 2 Stark. Ev. 610; Ricker v. Kelly, 1 Greenl. 117; Gale v. Nixon, 6 Cowen, 445.</p> <p>3. Nor is it necessary, that the property should be delivered at the very time of the sale. Vincent v. Germond, 11 Johns. R. 283; Holbrook v. Armstrong, 1 Fairf. 31.</p> <p>4. Actual delivery, in tbe popular sense of tbe word, is not in all cases requisite, but a virtual or symbolical delivery in some cases is equally effectual. Bailey v. Ogden, 3 Johns. 11. 399; Parsons v. Dickinson, 11 Pick. 352.</p>

Exceptions from the Court of Common Pleas. It appeared from the disclosure of Noyes, that before he was summoned, as trustee, he had agreed to sell the defendant a share in his schooner; that the defendant had paid him the greater portion of the purchase money; that he had requested the defendant to pay the balance and take a bill of sale, and that the defendant had neglected to do it; that by the agreement he was not to give a bill of sale until the whole of the…

<p>This was a writ of entry brought to recover a tract of land in Camden, and was tried upon the general issue.</p> <p>The demandant offered in evidence a copy of a deed from John Molineaux, clerk of the proprietary, known by the name of the Twenty Associates, to William Molineaux, dated September 14,1790, which is to be found in the case, Thorndike v. Barrett, ‘ 3 Greenl. 380; and a deed to him from the administratrix of William Molineaux, conveying the tract described in the writ. The whole of the descriptive part of the deed from the proprietors to Molineaux is given in the opinion of the Court in the present case.</p> <p>The tenant offered in evidence a deed from the same Twenty Associates, dated February 15, 1806, conveying the demanded premises to Joseph Pierce, a deed from said Pierce to Daniel Barrett, a deed from Barrett to Abraham Richards, and also a deed from him to the tenant, all conveying the demanded premises by a pertinent description, and the latter containing after the description these words, “ and being a part of Pitts or Beau-champ Neck.”</p> <p>The questions submitted for the opinion of the Court were:</p> <p>1. Whether the grant and deed of the Twenty Associates to William Molineaux confined the extent of his grant to the premises included within the boundaries, viz: on land of Ogier, on land of Thorndike and the Pond; or whether the grant included all the land on Beauchamp Neck situated beyond those boundaries.</p> <p>2. Whether the tenant, by the terms of the deeds referred to, is estopped, so that he cannot be permitted to prove, that the demanded premises are not a part of Beauchamp Neck.</p> <p>The question of estoppel was fully argued, but as the opinion of the Court was made on other grounds, whereby the consideration of this became unnecessary for the decision of the action, neither the arguments nor the substance of the deeds, relating to this point, are given.</p> <p>The case was argued in writing by</p> <p>In the argument for the demandant the following positions were taken.</p> <p>1. That the demanded premises passed by the voles of the proprietors.</p> <p>The paper called a deed, from them to William Molineaux, is in fact nothing more than an exemplification of the votes passed by the proprietors and certified by the clerk. As a deed merely, being by John Molineaux under his own hand and seal, it would pass nothing. Elwell v. Shaiv, 16 Mass. It. 42; Stinchfield v. Little, 1 Greenl. 231. But as a certificate of the vote, it is effectual, and passes the premises described in them. Thorndike v. Barrett, 3 Greenl. 380 ; Mayo v. Libby, 12 Mass. B. 339 ; Springfield v. Miller, ibid, 415 ; Codman v. Winslow, 10 Mass. R. 146. At the meetings they voted, “that Beauchamp Neck be sold”, that they “ sell all the unappropriated land on Beau-champ Neck”, and that “ the clerk execute a deed of Beauchamp Neck”. These terms are sufficiently comprehensive to include the demanded premises. As the land demanded is a part of Beauchamp Neck, it passed by the votes; and all further proceedings in relation to it are merely void.</p> <p>2. The clerk could not by any description of his, restrict or enlarge the description contained in the votes.</p> <p>He had as much power to convey more, as he had to convey less, than he was directed and empowered by the votes. He was a mere ministerial officer, without any discretion of his own. That part of the description, “ all that tract or parcel of land called and known by the name of Pitts or Beauchamp Neck, lying and being in Camden,” was according to the authority given the clerk by the votes. This-was a general and sufficient description. He however does proceed to define the bounds of Beauchamp Neck as on Thorndike, Ozier, and the Pond, thereby excluding a part of Beauchamp Neck, viz. the premises demanded. This is void for want of authority, and for that cause, does not restrict the premises conveyed to those bounds.</p> <p>3. But if the clerk had possessed sufficient authority, and indeed had himself been the owner of the land, general words are not restrained or restricted by words added ex majori cautela. Bott v. Burnell, 11 Mass. R. 163 ; Worthington v. Hylyer, 4 Mass. R. 196; Keith v. Reynolds, 3 Greenl. 393.</p> <p>In Keith v. Reynolds, the reporter’s note is, “ where a parcel of land is conveyed, as being the whole of a certain farm, which is afterwards described by courses and distances, which do not include the whole farm ; so much of the description will be rejected, as that the whole may pass.” The case itself warrants the note of it. Now the description in that deed, " a certain tract of land or farm,” is not more definite, than “ Beauchamp Neck.”</p> <p>4. If there are two clauses, or parts, in a deed repugnant, the one to the other, the first shall be retained and the latter rejected, though it is otherwise in a will. Shepherd’s Touchstone, 88; Worthington v. Hylyer, before cited.</p> <p>The latter case is directly in point, or as far as there is any difference, it is strongly in favor of the demandant. There the general words were, “ all my farm on which I now dwell.” Then follow the descriptive words, particularly bounding out a tract of land, but an entirely different one from the first. The general words were held to govern, and to control the specific boundary, which was wholly rejected. No part of it was permitted to stand against the general description; and this too in a case where the grantor himself owned the land, was at liberty to use his own language, and could convey what he pleased. The intention of the parties is to govern, but that intention is to be sought from the terms of the deed. On inspecting the deed no one can doubt, but that the Twenty Associates intended to convey the demanded premises.</p> <p>The counsel for the defendant in their argument contended :</p> <p>That it appeared by the report, that the demanded premises were not included in the particular description in the deed, and did not pass thereby; and that the demandant bad no title unless it passed by the votes of the Twenty Associates. No shadow of title is shewn to maintain the action, unless from this deed, or these votes. The votes are recited in the deed by way of preamble, but precede the portion of it containing the words of grant, as well as of description of the premises granted.</p> <p>There are but two votes of the proprietors recited in the deed, or appearing in the case. The first of these merely authorises their clerk to execute deeds to be approved by two of the Committee. It is not pretended that this vote of itself passes any title to land. Tiro other vote declares, “ that Beauchamp Neck be sold by the standing committee either by public or private sale,” and directs the manner of sale and the disposition of the money. This vote passes no title from the proprietors. It is a mere authority to sell, and if nothing more had taken place; if in fact no deed had been given; the votes would have been wholly inoperative. The counsel for the demandant has likened it to the case of Mayo v. Libby, 12 Mass. K. 339, where a resolve of the legislature, quieting settlers on tire State lands, passed a title to such settlers. No similarity in principle exists. The resolve clearly shews, that the State, by that alone, intended to part with all their interest in the land; and the persons intended to take it are also distinctly pointed out. True it is, that the names are not given, but it is only to find, wbo had settled on the land, and the description is perfect. The name of tire settler could be ascertained on en-quiry, and this was sufficient. Com. Dig. Grant, B. 1.</p> <p>But in our case, the title was designed to remain in the proprietors until other acts were done, and among them, giving a deed of the land. Here, too, there was no indication in any maimer of the person to take, and no mode pointed out to ascertain, why any one individual rather than another, should bo the grantee. These two essential requisites are wanting, and nothing can by possibility pass.</p> <p>Nor can the vote bo construed to pass the title by way of covenant to stand seized to uses. Here also, the two essential ingredients are wanting; the intention to pass a title, and the cove-nantee, or person designed to take.</p> <p>The other votes are mere votes of a committee, and can have no effect to convey a title. The principle of law, which author-ises towns and proprietors of lands to conVey by vote, does not extend to a committee authorized to sell, nor do the decided cases warrant such inference. Codman v. Winslow, 10 Mass. R. 146 5 Springfield v. Miller, 12 Mass. R. 415. And besides, the .deed was to be given by the clerk, and not by the committee.</p> <p>No title therefore could pass from the proprietors to Molineaux, unless it was conveyed to him by the deed. The vote of the proprietors had determined what should be a proprietor’s title to pass land, and it was by way of a deed executed by their clerk, and approved by at least two of the committee. The principle, that an attorney must execute a deed in the name of bis principal does not apply to cases, where proprietors acting in a corporate character give authority to convey, and also prescribe the manner of doing the act. The cases, deciding that the attorney must act in the name of the principal, are all restricted to attempted conveyances, where the mode of conveyance is not pointed out in the instrument, or vote, giving the authority; and such must have been the grounds of the decision in Thorndike v. Barrett, 3 Greenl. 380, and justifies the remark, that the case differed from Stinchfield v. Tittle, 1 Greenl. 231. The deed being executed by the Urgent of the proprietors, in the mode by them directed, is their deed. By that alone the demandant must obtain his title, if any he has.</p> <p>The deed does not convey the demanded premises. As the boundaries of the tract of land described in the deed do not include the land demanded, such construction must be given to the deed, as to include a different tract, or the action must fail. There is nothing in the case, or in the deeds referred to, tending to shew any particular tract of land designated as Beauchamp Neck, and therefore, even if there had been an intention to convey, nothing would have passed for the uncertainty. But there is evidence on the face of the deed, that the whole Neck was not intended to be conveyed by it. The committee did not agree to sell to Molineaux the Neck, but only a portion of it; to sell only “ all the unappropriated land on Beauchamp Neck” How great a portion of it was then unappropriated does not appear, except from the boundaries of the tract described in the deed. The land too was sold by the acre, which precludes the supposition that any indefinite quantity was intended. The only construction of the deed, which will give effect to all its parts, is the plain and obvious one; that so much of Beauchamp Neck was conveyed as is described within the boundaries. The case of Worthington v. Hylyer, has been insisted on, as directly in point for the de-mandant. But the cases have very little resemblance in any respect, and none in principle. That was a case, where two distinct and separate tracts were described in the deed, and the question was which should pass. Here there is but one tract described in the deed, and but one in question between us; and we differ only in the extent of it.</p> <p>Strike out the words “ called or known by the name of Pitts or Beauchairrp Neck” and the description is as perfect, as the power of man can make it. Those words only designate the part of the town of Camden, wherein the land is.</p> <p>The obvious meaning of the deed is the same, as if the words “ which is,” had been inserted before the words “butted and bounded.” As the demandant can recover only on the strength of his own title, he cannot support his action; even if he has succeeded in shewing, that we are estopped to set up ours.</p>

This was an action of assumpsit, commenced before the passing of the act prohibiting appeals from the Court of Common Pleas in civil actions. The damages demanded exceeded one hundred dollars.

<p>This was an action for a malicious prosecution. In one count in the declaration, there was an averment, that the plaintiff had been committed to prison in consequence of the malicious prosecution, and that lie had sustained special damage by being injured thereby in his business, as a merchant and trader, and that in consequence of his arrest and imprisonment by the defendant’s acts, his property had been attached and sold at a great sacrifice.</p> <p>The action was tried at the December Term of the S. J. Court, 1834, before Emery J., but from the very great length of the report of the Judge, covering one hundred and sixty-two large and closely written pages, and from other causes, the case was not prepared for argument at the next law term, and stood over until July Term, 1836. Several questions of law were reserved on the report of the Judge for the consideration of the Court. The following motion was filed*by the counsel for the defendant at the term when the trial was had, and the questions arising thereon were argued with the questions on the report.</p> <p>And now after verdict and before judgment, the said Mitchell, being present in Court, moves the Court here, that the verdict .aforesaid may be set aside and a new trial granted for the following reasons, to wit.</p> <p>1st. Because the said verdict is rendered against the facts proved in the case.</p> <p>2d. Because the jury in rendering their verdict on the points submitted to them by the Court, could not agree to finding a fact proved by legal and uncontradicted documentary evidence; said fact having a tendency to support the defence; whereas the said jury have found that the defendant did fraudulently and designedly conceal from the magistrates the fact, that a staple was gone from the mail-bag, without any evidence whatever having been laid before them, that said Mitchell at the time of the examination had noticed the fact, or even knew that a staple was gone from the mail-bag.</p> <p>3d. Because evidence was adduced to prove, that some of the friendly creditors of Merriam called upon him by suit to pay to them certain sums of money due and owing to them, and that afterwards, by consent of parties, the personal property of said Merriam which was attached, was sold, as the plaintiff alleged, at a loss; which said testimony was introduced, although objected to by the defendant, for the purpose of enhancing the damages, if any should be recovered.</p> <p>4th. Because it is manifest, on comparing the testimony laid before the jury with the answers which the jury have given to the questions put by the Court, that the jury in rendering their verdict must have been influenced, however unknown to themselves, by prejudice against the defendant and his cause.</p> <p>5th. Because the damages given in this case are excessive and not warranted by the evidence in the case, or the facts complained of.</p> <p>6th. Because during the trial and while the cause was actually in hearing, one of the jurymen, Benning Pease, did receive privately a slip of paper from a friend of the plaintiff, Francis Fletcher, 2d. and after reading the same, wrote upon it and returned it to that friend ; who again wrote and passed it back to the juryman, and this proceeding was more than once repeated in Court.</p> <p>7th. Because since the evidence was closed in this case, the defendant has discovered new and important evidence, tending to prove clearly and unquestionably, that a man in a gig did leave Camden on the morning or early part of the day of the 28th of Sept. 1833, pass the cross-road from Camden to Warren in accordance with the evidence introduced by the defendant, and this under suspicious circumstances.</p> <p>8th. Because evidence was admitted to show the property of the defendant for the purpose of enhancing the damages, and the jury have evidently proceeded upon the principle of giving vindictive damages.</p> <p>9th. Because the sum for which the verdict is rendered, to wit, the sum of ^1666, proves that they must have chalked for it, or made an average.</p> <p>10th. Because the defendant is ^informed and verily believes, that he shall be able to prove, that some of the jurymen not only formed an opinion against the defendant before the evidence was out, but actually expressed an opinion against the defendant.</p> <p>The report of the Judge commences with the following statement.</p> <p>“To support the issue on the part of the plaintiff, he proved the complaint of the defendant against the plaintiff, as set forth in the writ; that ho was arrested thereon; carried before magistrates ; ordered 4o recognize in 5000 dollars to appear at the Circuit Court of the United States; and not finding sureties was detained a prisoner until the grand jury declined finding the bill of indictment to be true, and that thereupon the defendant was discharged.</p> <p>“ In order to facilitate the advance of the case, for the purpose of this trial, I directed the jury on the proof before stated, and the evidence hereafter recorded, that there was no probable cause for the prosecution commenced as aforesaid by said Mitchell against said Merriam; intending to reserve the question for the consideration of the whole Court. And to enable the jury to pronounce whether there was malice on ihe part of the defendant in that prosecution, and to ascertain what damages the plaintiff had suffered; and with a view to ascertain facts deemed material for the jury to decide ; fifteen questions were submitted to them with a request, that as far as they could agree they would answer them. One was, had losses of money and detention of notes occurred on the mail route from Belfast to Thomaston, previous to complaint to the Post Office Department ? The jury could not agree to answer. Another question was, did Nathaniel Mitchell receive from the Post Office Department, a commission to examine the mail routes the whole length of the route from Portland to Lubec, and make investigation upon the whole length of it, accompanied by a petition from individuals in Belfast and instructions from the Post Office Department for this purpose, as exhibited in evidence; and did he in pursuance of that commission, and instruction, proceed on that duty from Belfast to Camden on the 28th day of September, 1833 ? To this the jury could not agree to answer. Another question was this; was the Bath decoy package in the mail-bag after the examination at Lincolnvillel The jury answered it was. Another question submitted was this; was the mail afterward on that day delivered to and opened by William Mcrriaml The jury say it was. Another question submitted was this; was the Bath decoy package in the mail-bag at the examination at Goose River l The jury say that it was. Another question submitted to them was this; Did Nathaniel Mitchell in good faith believe, that the Bath decoy package had been withdrawn from the mail-bag by William Merriam at the time when he made his complaint to justice Dillingham, during the trial before the magistrates, and at the time he testified before the grand jury ? To this the jury could not agree to answer. Another question submitted to them was this; how many packages were dropped after the examination at Northport, and not restored to the mail-bag before its arrival at Camdenl The answer is, we say one. Another question submitted to them was this; was it practicable between the time that Mitchell & Piclcard returned from Goose River, on the 28th of September, 1833, and the time of the stage passing the Post Office at Damariscotia Mills, for a person to go in a gig on the cross road from Camden to Warren, from the Post Office in Camden to the Post Office at Damariscotia Mills and there deposit a letter in season to be placed in the mail going that day westward ? To this the jury could not agree to answer. Another question submitted to them was this; was it practicable at that time to introduce a package of the size of the Bath decoy package into the mail-bag then used on this route from Belfast to Bath, without unlocking the mail-bag ? The jury answer, it was. Another question submitted to them was this; was the said Mitchell actuated by malice, in the commencement and prosecution of the complaint against William Merriam ? They answer, wo say ho was. Another question submitted to them was this ; was the examination of the mail-bag at Goose River, and of the packages therein, conducted by Mitchell $f Pickard with due and reasonable care, and caution, and did they honestly believe that the Bath decoy package was not then among the packages in the mail-bag ? To this, the jury could not agree to answer. Another question submitted to them was this ; did Nathaniel Mitchell fraudulently and designedly conceal from the magistrates the information that was given to him by Mr. Reed, of the finding of the package of letters to Mr. Whitney l The jury, answer, we say he did. Another question submitted to them was this; at what time did the Bath decoy package arrive at Bath, with the money in it in the mail, and was it abstracted from the mail at any time before, after leaving Bincolnville ? The jury answer, it arrived in due course of mail, and was not abstracted. Another question submitted to them was this; if the Bath package was abstracted from the mail after leaving Bincolnville, was it abstracted by William Merriam ? The jury answer, we say it was not. Another question submitted to them W'as this,; did ISaihaniel Mitchell fraudulently and designedly conceal from the magistrates the fact, that a staple was gone from the mail-bag? Answer, we say he did.</p> <p>“ The plaintiff offered evidence to prove, that after he was so arrested on the complaint of said Mitchell against him, his goods were attached, and afterwards sold by consent; and upon the whole evidence already staled, and hereafter recited, the jury by their verdict found the defendant guilty, and assessed damages for the plaintiff, in the sum of sixteen hundred, and sixty-six dollars.”</p> <p>The whole of the testimony given on the trial, on each side, then follows, and the report concludes thus:</p> <p>“ It is to be recollected, that the plaintiff’s counsel, though called on especially to say in tho close of his argument, whether be insisted oh the evidence in relation to the letter opened by Mr. Mitchell, as having any bearing on the case, frankly declared, that be did not, and had not noticed it in bis argument. If upon the foregoing evidence offered by the plaintiff under the circumstances before stated; and upon the directions given by the presiding Judge and the verdict of the jury thereon, the full Court should be of opinion, that the action is maintainable, the verdict is to stand; but if any of the evidence admitted ought to have been rejected, unless excluded by what is before stated; or if the directions of the presiding Judge to the jury be erroneous, the verdict is to be set aside and a new trial granted.”</p> <p>The foregoing extracts contain all the instructions, which appear in the report to have been given to the jury.</p> <p>It is intended to give such facts only from the mass of evidence reported, as are pertinent to the questions of law, without any reference to the merits of the controversy, as a question of fact for the jury, or for the consideration of the Court in the exercise of their discretionary power to set aside the verdict.</p> <p>Complaints had been made to the Postmaster General, that letters containing money had been taken from the mail on the lower route between Lubec and Bath, in the summer of 1834 ; and in the month of September of that year, the assistant Postmaster General appointed the defendant, then postmaster at Portland, agent of the Department to make an investigation. In a letter from the department he was specially instructed in the mode of performing the duties of the agency, and detecting such as might be guilty. One of the modes suggested, was that of preparing and putting a package into the mail containing money, ascertaining that it was in the mail before it reached a post office, and then passing by and examining the mail, when out of sight of the office. Having received notice of his appointment, with the instructions, the defendant proceeded to Lubec, and on his return westward arrested one of the postmasters between Lubec and Belfast for robbing the mail, who pleaded guilty to the charge. On the evening of the 27th of September, 1834, the defendant was at Belfast, and there with the knowledge and assistance of the postmaster at that place made up, and put into the mail, two packages containing money, one directed to a person at Bath, and the other to one at Wiscasset. From Belfast the defendant, with a gentleman of that place as an assistant, proceeded westward, opened the mail before reaching Camden, proceeded past the office, and at a place in the vicinity, called Goose River, again opened the mail, returned back to Camden, and made complaint to a justice of the peace, that the plaintiff had taken the Bath package from the mail. A warrant was issued, and the plaintiff, then acting as postmaster at Camden, as the deputy of Col. Hall, postmaster at that place, was arrested and carried before two magistrates. After an examination the plaintiff was bound over by the magistrates to appear at the Circuit Court of the United States to be holden at Wiscasset, on the first day of October following, and in default of obtaining sureties, was committed to prison at Wiscasset. The grand jury did not find a bill of indictment against him, and he was discharged, and then brought this suit. On the trial it was proved, that the Bath decoy package, as it was denominated, was received by the mail at Bath on that day, and delivered to the person to whom it was addressed. It was also proved, that the defendant and his assistant with the stage driver, made on examination of the mail-bag at Goose River, west of Camden post office, and did not find the Bath package. The defendant offered evidence for the purpose of showing, that the Bath decoy package, which was alleged in the complaint to have been taken from the mail at Camden by the plaintiff was not in the mail-bag when it was examined at Goose River, and that it was sent from Camden after the departure of the mail from that office by a different route, and again put into the mail either at the post office at I) amar is cotta, where packages mailed at a neighboring office, where there was no regular conveyance of the mail, were forwarded without being again mailed, before the mail arrived at Bath, or was put into the mail before it reached the Bath office at some place, whore the stage conveying it stopped, through an opening in the mail-bag occasioned by the loss of one of the staples through which the chain passed. There was evidence offered on the part of the plaintiff for the purpose of shewing, that the decoy package could not thus have been put into the 'Damariscotia office or into the mailbag. The fact, that the decoy package arrived at Bath by course of mail was communicated to the defendant at Wiscasset, and he afterwards continued his endeavours to have a bill found by the grand jury against the plaintiff.</p> <p>From the report it appeared that there was before the jury, as evidence offered by the plaintiff, testimony that the defendant opened a letter taken from the mail at a post office on the route from Belfast to Camclen, addressed to a person, who did not reside at the latter place; also the record or account of mails received at and sent from the Camden post office on the day of the arrest, in the handwriting of the plaintiff; also the statement in a deposition, that the deponent had heard, that the defendant had arrested Col. Mall for robbing the mail, given by the deponent in answer to a question thus stated in the deposition, “ did your hear on Monday, that Col. Hall of Camden had been arrested by Mr. Mitchell for robbing the mail, (objected to by defendant’s counsel).” Also testimony, that the personal property of the plaintiff had been attached at the time of the arrest, and afterwards sold by consent of parties on the writs at a loss upon the costs thereof, but the suits were in favor of persons friendly to the plaintiff, one of whom was his mother. And also testimony by the magistrates, before whom the examination of Merriam was had, that if the dropping of a package by the defendant, when he opened the mail before it arrived at Camden, and which fact had become known to the defendant during the examination, had been communicated to them, that it might have prevented their committing Merriam to prison. It did not appear from the report, that the objection made in the deposition to the testimony, as to the arrest of Col. Hall, was renewed at the trial. The counsel of the defendant objected to the admission of the other evidence.</p> <p>After giving a history of the case, he remarked, that the plaintiff, to make out his case, must among other things prove: first,15 that the prosecution was commenced by the defendant against the plaintiff without probable cause therefor: and second, that it was done, not from a sense of duty, but from malice on the part of the prosecutor. As actions of this character tend to discourage enforcing the laws, and bringing offenders to justice, they are not to be favoured. Buller’s N. P. 14. Both these points are clearly to be made out, and if either fail, the action fails with it. 2 Dane’s Ab. 723. In the English practice, where copies of a case tried can only be bad by permission of the Court, the Courts never suffer copies to be taken, that a suit may bo instituted, unless in their opinion, there was no probable cause. 3 BL Com. 126. Within this principle are many cases, such as where a father complained on information from a young daughter, where it was held, that there was probable cause to make the complaint from that information; and the magistrate having bound over the accused, it was also hold, that it was the duty of the prosecutor to appear before the grand jury, and it was adjudged that there W'as probable cause, although it turned out, that the accused was innocent. Cox v. Wirrall, Cro. Ja. 194. In Virginia it has been held, that a commitment by a magistrate is sufficient evidence of probable cause. Maddox v. Jackson, 4 Munf. 462. He did not propose to trouble the Court with a citation of a long list of authorities on this subject. The general rule is laid down by this Court iu Ulmer v. Leland, 1 Greenl. 135. The essential foundation of an action of the case for malicious prosecution, is, that the plaintiff has been prosecuted without probable cause. Probable cause, in general, may be understood to be such conduct on the part of the accused, as may induce the Court to infer, that the prosecution was undertaken from public motives. In this case the Court cite w'ith approbation the case, Smith v. McDonald, 3 Esp. N. F. Rep. 7, that whore the evidence is such, as should induce a jury to pause, that there is probable cause. But want of probable cause is not enough. The action should not be maintained without rank malice and iniquity, the language of Ch. J. Holt, as stated in Bulled s N. P. 14. Even if express malice be proved, want of probable cause cannot be implied from it; nor can express malice be inferred from want of probable cause. They are distinct, and each must be proved. The principle stated in Willans v. Taylor, G Bing. 183, is the true one, that express malice and want of probable cause must both be shown, and must be such, as to satisfy every reasonable man, that the prosecutor had no desire to proceed for any purpose, but merely to injure the accused. True it is, that it has been held, that where the prosecutor knew, that there was no ground for the complaint, that it is evidence of express malice. This is because under such circumstances, the prosecutor cannot proceed but from bad motives. The belief of the prosecutor is important, and it has been held, that where the complainant testified to the guilt of the accused, and other evidence shew, that he was mistaken, that this was evidence of probable cause. His own belief, that he was prosecuting the guilty, is conclusive evidence, that' there could not be malice. This is the principle upon which the cases may be reconciled. Where a man prosecutes, with the knowledge, that there is no cause for it, it must be done from bad motives; and where he really believes that he is doing nothing, but what duty demands of him, this forbids the supposition, that such motives can exist. Burlingame v. Burlingame, 8 Cowen, 141; Jacleson v. Burleigh, 3 -Esp. N. 311; Snow v. Allen, 1 Starkie’s N. P. Bep. 502; 12 Petersdorf’s Ab. 288; and notes; 9 East, 361; 5 Taunt. 580. Want of probable cause cannot be implied from express malice. Cox v. Wirrall, Cro. Ja. 194; Bull. N. P. 14; 2 Phil. Eo. 112. In an action like this, there are but three grounds, on which damages can be recovered. 1. Imprisonment of the person. 2. Damages sustained by the scandal to his character and reputation. 3. To his property in making his defence. These are all the subjects of damages recognized by law. Bull. JV. P. 14; 2 Stark, on Ev. 917; 12 Petersdorf’s Ab. Art. Damage, and notes.</p> <p>The first class of objections is to the admission of testimony.</p> <p>The second, is to the charge of the Judge.</p> <p>And the third to the conduct of the jury in finding the verdict.</p> <p>Under the first class of objections are:</p> <p>1. The admission of the evidence of the proceedings at the Lincolnville post office, with respect to opening a letter. This was objected to, as a transaction- between other persons, and which had no relevancy to this case. It was admitted, and was seized upon, as evidence that the defendant was wholly regardless of the rights of others, and it had an influence upon the minds of the jury.</p> <p>2. The admission of the statement of letters received and letters sent away on that day, in Merriam’s handwriting, against our protestations, is alone a sufficient cause for setting the verdict aside. This is creating testimony in his own favor, after the arrest was made, by his own act. The paper has none of the qualities of a record, and is not more legal or proper evidence, than to have admitted Merriam upon the stand to testify in his Own case.</p> <p>3. The admission of the false story, that the defendant had arrested Col. Mall for robbing the mail, is so glaringly wrong, that comment is unnecessary. It had a direct tendency to injure the defendant, when the integrity of his motives was in question, as well as to increase the damages by inflaming the minds of the jury. It is difficult to imagine a case, where the admission of hearsay testimony would be more improper.</p> <p>4. The admission of the testimony in relation to the attachment and sale of the property of the plaintiff was altogether wrong. It was not connected with the transaction, and was no lawful subject of damages, as the authorities before cited on this subject prove. In this case, it was got up for the occasion by his friends.</p> <p>5. The testimony of the magistrates, tvho committed Merriam, of the effect the dropping of the package at Lincolnville, would have had on their minds was improperly admitted. As it was not the decoy package, it ought not to have influenced any mind. But if it had been proper to admit testimony to show that a package had been dropped, it was for the jury, under the instruction of the Court, to determine whether that circumstance ought to have had any effect, and not for the Justices to give their opinion on the subject.</p> <p>The charge of the Judge is highly objectionable. He ruled at once, that there was not probable cause, thus determining what was the effect of the very voluminous, and in some degree contradictory evidence, and taking from the jury their province of deciding the facts, and drawing inferences from them. It was deciding the whole case, but the single question of damages, instead of stating the law to the jury and leaving them to an unbiassed decision. This decision is taking to the Court the determination of the question, whether the defendant acted from good motives and from a sense of duty, or from malice and revenge. After making this decision he put a string of questions to the jury for them to answer, but the answers were made with the prejudice upon their minds, which a decision by the Court, that the defendant was guilty of the charge, was calculated to produce. But the jury did not answer but a portion of them. If it were proper to put them, they should have been answered. If this practice is to be tolerated, juries may as well be dispensed with.</p> <p>This course deprives us of the power of knowing upon what legal principles the decision of the Judge was founded, and thus deprives us of the power of excepting to any ruling made in relation to the law. We are therefore driven to show, if the course taken was legal, that on no possible construction, which can be given to the evidence, can the action be supported.</p> <p>There is no dispute here, but that the magistrates after a full hearing bound the defendant over to appear at the Circuit Court. This in itself is evidence of probable cause. There can be no difference, between the conviction of the magistrate, where he has jurisdiction, and the binding over, where he has not. The one has been decided to be evidence of probable cause in Massachusetts, and the other in Virginia. Whitney v. Peckham, 15 Mass. It. 243; Maddox v. Jackson, 4 Munf. 462; 2 Stark. JEv. 913, and notes. The instructions of the Judge were tantamount to directing the jury to find a verdict for the plaintiff. He undertook to instruct them, that there was no probable cause, he inferred, that there was malice, and the jury considered, that they were bound by it. He told them to find, as to certain facts, but still that the case was to be given to the plaintiff. Such course in the Judge was illegal, and the verdict should therefore be set aside. Under the objections to the finding of the jury, he argued, that they must have been influenced, by some improper causes in the finding, as they did; that some of the answer’s were given, not only without evidence, but against the evidence; that others were given without evidence; that they refused to give answers, where they would favour the defendant; and he drew the conclusion, that for these causes the verdict should be set aside.</p> <p>It is enough to sustain the verdict, if the defendant from any cause has attempted to procure the conviction of the plaintiff without reference to the question, whether he was guilty or not guilty; whether such conduct was occasioned by suggestions from others, or from unfounded suspicions of his own. It should always be remembered in this case, that the plaintiff was not guilty, and that the defendant on his own complaint arrested and imprisoned an innocent man.</p> <p>Where there are questions of fact to be settled by the jury, and much testimony on each side, and not easily to be reconciled, the finding of the jury will not be disturbed. Hammond v. Wad-hams, 5 Mass. R. 353; Hall v. Huse, 10 Mass. R. 41; Smith v. Brampston, 2 Salk. 644; Winchcl v. Latham, 6 Cowen, 682; Douglass v. Tousey, 2 Wend. 352; Smith v. Hicks, 5 Wend. 48; Foivler v. ¿Etna F. 1. Co. 7 Cowen, 270. In penal actions, in cases of libel, and of malicious prosecution, the Courts will give no second chance of success by setting aside a verdict, unless some positive rule of law be violated. Jarvis v. Hathaway, 3 Johns. R. 180 ; Farewell v. Chaffey, 1 Bur. 54; Hurtin v. Hopkins, 9 Johns. R. 36; Paddock v. Salisbury, 2 Cowen, 811; Feeter v. Whipple, 8 Johns. R. 369; Woodward v. Paine, 15 Johns. R. 493; Crafts v. Plumb, 11 Wend. 143. A verdict will not be set aside, although against the positive testimony of a witness, where circumstances in the evidence tend to lessen the probability, that such testimony is true. Waite v. McNeil, 7 Mass. R. 261; Blanchard v. Colburn, 16 Mass. R. 345; Harding v. Brooks, 5 Pick. 244. If the verdict be against the weight of evidence in actions of tort, it will not be set aside. Jackson v. Loomis, 12 Wend. 27; Ayer v. Bartlett, 9 Pick. 156 ; Feeter v. Whipple, 8 Johns. R. 369; Ex parte Baily, 2 Cowen, 479. If a good cause of action be established by unimpeachable testimony, a verdict will not be set aside because some improper testimony has been admitted. Stiles v. Tilford, 10 Wend. 338 ; Baker v. Briggs, 8 Pick. 122. The fact, that the plaintiff is innocent is in itself sufficient evidence of want of probable cause. 2 Stark. Em. 916, and notes and eases there cited. Probable cause for the arrest is not to be inferred from slight suspicion. 6 Petersdorf’s Ab. 131; ibid. 88, Art. A. The omission of the jury to answer some questions put to them is no cause for setting aside the verdict. Pejepscot Pro. v. Nichols, 1 Fairf. 256. The testimony, as to the injury sustained by the plaintiff by the attachment and sale of his property, was properly admitted. This is alleged in the writ, as special damage. The jury are the proper judges whether the arrest of the plaintiff was the cause of the loss. No improper motives should be imputed to the jury. Brewer v. Inhabitants of Tyringham, 12 Pick. 547. In a case like this, no new trial should be granted on account of excessive damage. Coleman v. Southwick, 9 Johns. R. 45; Southwick v. Stevens, 10 Johns. R. 443; Douglas v. Tousey, 2 Wend. 352; Shuie v. Barrett, 1 Pick. 82; Thompson v. Mussey, 3 Greenl. 305. No new trial should be granted on account of newly discovered evidence merely cumulative. 10 Wend. 285; 6 Greenl. 479. The condition of the parties is properly to be taken into consideration by the jury in estimating damages. Tillotson v. Cheetham, 3 Johns. R. 55. Merely chalking for damages, without agreeing to be bound by it is no cause for setting aside a verdict. Dorr v. Fen-no, 12 Pick. 521; Winn v. Col. Ins. Co. ibid. 279. He argued, that upon these principles of law, applied to the facts stated in the report, judgment ought to be rendered on the verdict.</p> <p>said, that he did not dissent from most of the positions of law laid down by the counsel for the defendant, but differed widely in the application of them. To support the action the plaintiff was bound to show, that the prosecution was without probable cause, and with malice. But malice may be inferred, as a fact, by the jury from want of probable cause. The latter is the great and leading ingredient in actions for malicious prosecution. If the finding of the jury in (his particular was right, then all the rest follows. He proposed to consider the case under three general divisions, which seemed to him to embrace the whole of it.</p> <p>1. That as matter of law on the facts found by the jury, there was not probable cause. The facts are to be found by the jury, and thereupon, probable cause, or the want of it, is for the determination of the Court.</p> <p>2. That the verdict is not so against evidence, that the Court should set it aside.</p> <p>3. That there was no material evidence admitted, which ought to have been excluded.</p> <p>Under the first, he stated this general proposition; that where an innocent man has been arrested and imprisoned, who has given no occasion for suspicion by his own misconduct, he has a remedy against some one; against the prosecutor, if he proceeded on groundless suspicion of his own, or against the slanderer, who gave false information justifying an arrest. The supreme law of the land, the constitution of the United States, art. 4 of the amendments, protects the citizens from unreasonable seizures of their persons, and forbids the arrest of any one, but upon probable cause. If a man proceed to act in such case on his own carelessness and negligence, he is to suffer, and not the innocent victim of his folly and negligence. The mere belief of the prosecutor, that he is acting honestly is no protection to him. Some people are firm believers in dreams; and would a thrice dreamer that an innocent man had committed a murder, a robbery, or a larceny, be justified for that cause in occasioning his arrest and imprisonment? He dissented entirely from the views of the counsel for the defendant in this part of his law, and believed not only common sense and common justice, but the law of the books, would bear him out in it. 2 Stark. JEv. 915; Iioscoe on Ev. 303. Probable cause must be shewn in defence, if it lies wholly within the complainant’s knowledge. 2 Dane’s Ab. 725. And it must be knowledge and not suspicion.</p> <p>He said that the jury had found, that the decoy letter had passed in regular course of mail to Bath, its place of destination, and was in the mail-bag, when the defendant examined it after it had passed the Camden office, and before it had reached any other. The plaintiff was therefore innocent of the crime charged against him. The plaintiff, by his own conduct, had not given the slightest occasion for suspicion. It is the case of the arrest and imprisonment of an innocent and wholly blameless man. The defendant had no information from others justifying his conduct, and must be held accountable for the injury he has inflicted. But the defendant not only arrested an innocent man, hut one who had resisted a temptation purposely thrown in his way by the defendant. In the case Pierce v. Pierce, 3 Pick. 299, where the husband had laid a snare to induce his wife to commit adultery, the Court refused to grant a divorce. In this case, if it be allowable for the defendant to place inducements in the way of others to commit crimes, the law certainly should not permit such conduct to be the occasion of his imprisoning an innocent man with impunity.</p> <p>It has been said on the other side, that this action is of a description not to be favored, and Blackstone has been cited to shew it. The .old books do contain some expressions, that actions for malicious prosecution are not to be favored; and that actions for libel and slander should be discouraged. If the loose remarks of old writers ever did correctly express the law of the Courts, the doctrine has long since become obsolete. They are to be treated like all other actions, where the plaintiff must make out his case, or he cannot recover. The cases cited from Cro. Ja. and from Cowen do not conflict with the positions we assume. The first was where the prosecutor had received false information on which he acted, and if the story told him had been true, the accused was guilty. In such case, if the information was of a description, that a reasonable man, with due care, should believe it, the prosecutor will be excused, and the remedy will be against the slanderer. In the New- York case the plaintiff’s own misconduct had given occasion for well grounded belief of his guilt. All the cases cited on this point go on the ground of misconduct in the party accused, or wrong information from others. In the case now before the Court, there was not the slightest misconduct on the part of the plaintiff and the defendant was not mislead by false information from others. No case has been found to show, that under such circumstances the accused is without a remedy.</p> <p>The fair construction of the charge of the Judge is, that he did not undertake to decide any fact whatever, but that he merely said to the jury, you are to take it for granted, that there is a want of probable cause until the facts are found by you, and for the purpose of enabling the Court to enter the proper judgment, you may answer as many of the questions propounded, as you can. It has already been shown, that when the facts are found, it is for the Court to determine whether there was, or was not, probable cause. There were the same materials for the decision at the trial, that are now spread out in the volume of evidence reported.</p> <p>Under the second division, the counsel went into an examination of the testimony to show, that the verdict was fully justified by the evidence. He said, that it was a well settled principle of law, that the jury may infer malice from want of probable cause, and cited in addition to the cases already cited on this point, Sutton v. Johnstone, 1 T. R. 493. Malice is not necessarily a grudge against an individual, but a want of due care, and a reckless design to accomplish an object regardless of the rights of others. In some cases malice is but wilfulness, jDexter v. Spear, 4 Mason, 115 ; Roscoe on Ev. Phil. Ed. 302; United Slates v. Coffin, 1 Sumner, 394.</p> <p>Under the third division, that there was no material testimony admitted, which should have been excluded, he said:</p> <p>1. That if any objection was made to the admission of the testimony in relation to the opening of the letter at Lincolnville, the objections were entirely waived. The testimony in relation to the dropping of the package was proper and admissible. One portant question on the trial was, whether Mitchell had acted with care or with carelessness. Another was, whether he did or did not overlook the Bath decoy package at Goose River. On both these subjects, whether the defendant was so careless, as to drop a package without knowing it, was very important; and the relation of his whole conduct on this business was proper.</p> <p>2. The record kept in obedience to the law at the Camden post office, of which another man was postmaster, was proper evidence, and it is wholly immaterial, whether it was in the handwriting of Merriam or any other man. It is equally a record in either case. The effect of the evidence when admitted might be greater in the one case, than the other; but its competency would remain the same.</p> <p>3. It does not appear on the report of the Judge, that any objection was made to the very unimportant testimony in relation to a story of the arrest of Col. Hall. If it could have had an influence in any part of the case, it is on that about which the jury did not agree.</p> <p>4. We cannot assent to the limitation of the subjects of damage made by the counsel for the defendant. The destruction of a man’s credit, as a man of property, is a legitimate subject of damages. 2 Stark. Ev. 917. The case in Burrow, 1971, Farmer v."Darling, not only decides, that the loss of credit may’ be taken into consideration in estimating damages, but that the jury may infer it from other facts proved. 2 Dane’s AJb. 730, 735. Here the loss of credit, and loss of property in consequence of it, were proved.</p> <p>5. The act of the magistrates in binding over Merriam is relied on by the defendant, as showing probable cause. It becomes therefore both pertinent and important to shew, what occasioned the binding over by the magistrates, and the grounds of their decision. This could come only from them, or at least not so properly from any other source. The testimony went to show, that the concealment of a material fact by the defendant occasioned the act of the magistrates in the binding over of the defendant. The want of ordinary care in the examination of the mail, just before the arrest, would have an important bearing on the question of care in examining the mail so soon afterwards.</p>

This was a bill in equity brought against the defendant, as administrator of the estate of Samuel C. Bradbury, deceased, intestate.

This was an action of assumpsit on a contract dated January 24, 1834, made with the plaintiffs, by A. S. Patten and E. II, Favor, assuming to be authorized by the defendants to contract to build a bridge at the great falls in Dover, and was tried before Weston C. J. To prove the authority of Patten and Favor to make the contract in behalf of the defendants, the plaintiffs called Flavel Bartlett, the town clerk of Dover for the years 1834 and 1835, who produced the records of…

Exceptions from the Court of Common Pleas. This was an action of assumpsit, and was tried before Whitman C. J. One of the defendants was defaulted. Gordon and Haskell, the other two defendants, pleaded the general issue, and filed affirief statement, alleging that Haskell was a minor at the time the contract was made. Evidence was offered to show that Haskell was a minor.