Volume 14 — Maine Reports

<p>Where a mortgage is assigned to one having an interest in the premises mortgaged ; the mortgage is not extinguished, if it be for the interest of the assignee to uphold it.</p> <p>Where one man conveys land to another, and at the same time the grantee gives a bond to the grantor, conditioned that the grantee should reconvey the premises on demand, and should permit the grantor to enjoy the premises until the conveyance back; the grantee can maintain no action against the grantor on the covenants of the deed.</p> <p>If one man convey land to another, covenanting only, that neither he, nor his heirs, nor any person' under him or them, shall set up any demand, right, or title to the premises forever, and at the same time takes back a bond to re-convey the premises to him on demand, and afterwards becomes the assignee of a mortgage previously made by him to a third person; he is not estopped from setting up his title under the mortgage, against his grantee, or those claiming under him.</p>

Assumpsit on a note of hand, given by the defendant to the plaintiffs, dated March 18, 1833, for $500, in 90 days and interest. The execution of the note was admitted, but the right of the plaintiffs to recover was resisted, on the ground of fraud and misrepresentation on their part.

This was an action of assum/psit, brought to recover the value' of certain materials, and labor furnished and done by the plaintiff, as he alleged, in building a bridge for the defendants, over Great Works stream,, in their plantation. The general issue was pleaded and joined. At the second term after the pendency of the action in this Court, the counsel for the plaintiff, called upon the counsel for the defendants, for theft authority to appear in their behalf.

Exceptions from the Court of Common Pleas. Assumpsit for a bill of $26,50 for medical attendance and medicine furnished the defendant’s minor son. This son had left the father’s house about a year before his sickness, and had lived in the neighborhood laboring industriously at several places, was a steady boy, but dying of the sickness left no property, excepting his clothing. On being taken sick the son returned to his father’s house, and there remained until his death.

Assumpsit upon an account annexed to the writ, against which the defendants filed an account in set-off. The plaintiff offered in evidence a shingle, on which it was proved that his intestate entered from day to day in the woods an account of the timber hewed by him each day, under a contract with the defendants. No more of the evidence is given in the report of the trial, and no further description of the shingle; but it was referred to in the report.

This was an action of replevin for a chaise and harness. The defendant pleaded the general issue and filed a brief statement, alleging property in himself. Both parties claimed under Benjamin Hasty; the defendant by a conveyance, Feb. 13, 1833, and the plaintiff by a sale in July following.

<p>Where the interest in a bond for the conveyance of real estate to a debtor is seised and sold on execution, agreeably to the provisions of the stat. of 1829, c. 431, the lien of the creditor becomes fixed by the seisure on the execution, and is not dissolved by a voluntary surrender of the bond to the obligor by the obligee or his agent, without consideration.</p> <p>A bill in equity may be maintained, under that statute, by the purchaser of such right without making any tender, or oifer of payment, if the obligor in the bond, on request made by the purchaser, before the expiration of the time for payment or performance, shall refuse to give true and correct information of the amount due, or condition remaining unperformed.</p> <p>And it is not a sufficient excuse for withholding this information, that the purchaser had heard it from others.</p>

<p>The action was assumpsit brought to recover three quarters’ rent on a lease dated, October 1, 1833. The instrument declared on was in the common printed form of a lease, signed by both parties, but no seals were affixed to it, and by its terms leased, demised and let unto the defendants the premises therein described for the term of five years, commenceing on the twenty-second of May, 1834, “ yielding and paying therefor the rent of one hundred and seventy-five dollars per year, and the lessees do covenant to pay the said rent in quarterly payments at the end of every three months during said term, and to quit and deliver up the premises to the lessor, or his attorney, peaceably and quietly, at the end of the term in as good order and condition, (reasonable use or wearing thereof, or inevetible accident excepted,) as the same are, or may be put into by the said lessor, and to pay all taxes, and not to make or suffer any waste thereof.” The three quarters had expired before the suit was brought.</p> <p>The defendants introduced a former lease of the same premises dated the 22d of June, 1833, for the term of eleven months, at the rent of $75,00 per annum payable quarterly. This lease was in form similar to the other.</p> <p>The defendants then proved that the lot leased by the plaintiff to the defendants was situated on the Kenduslceag stream in Bangor, and was covered with a wharf on which stood a small building for a store-house; that the value of the property to a lessee arose principally from the wharf, as a place of deposite of goods and lumber, the access to which was from the public street; that before the arrival of the period when the premises were to be enjoyed under the lease sued, but after its execution, a large proportion of the leased premises, to wit, forty feet of the wharf in length, and of the breadth of the whole lot, through the natural decay of the material of which it was composed, was destroyed; that in consequence of the destruction of this part of the premises the residue of them could not be approached without a circuitous route, and over the property of others, except by water, and that by water it could not be approached beneficially. And the defendants further offered to prove, that they called upon the plaintiff immediately after the destruction of the premises and while they were lessees under the first lease, to put the premises in a situation similar or equal to what they were in when the lease was executed; that the plaintiff neglected to rebuild the wharf, and that thereupon and before the arrival of the period, when the defendants were to enjoy the leased premises, abandoned their possession of them, notified the plaintiff of their election to do so, and have never since claimed or occupied them; that the premises on the 1st Oct. 1833, and on the 22d May 1834, were essentially different in character and value; that at the latter date they were of little or no value, to the defendants, and that in consequence of the change, and file neglect of the -plaintiff to repair them within a reasonable time, they hired other premises in lieu thereof. The plaintiff proved that in another action between the same parties for the first quarter’s rent on the lease of Oct. 1, 1833, the defendants brought a sum of money into Court. A default was entered by consent, it being agreed, that if in the opinion of the Court, the foregoing facts, if proved, furnish matter of defence, the default was to be set aside and the action stand for trial; otheiwise judgment is to be rendered for the plaintiff.</p> <p>This is a question of construction of the instrument declared on.</p> <p>The intention of the parties is to govern. This is a familiar principle, and but a few cases will be cited to show the extent of it. 8 Mass. R. 179; 10 Mass. R. 379; 11 Mass. R. 302; 1 Pick. 332. The contract was conditional and the payment of rent was to depend upon the enjoyment of the property. And such is the language of it, “ yielding and paying rent therefor.” The parties must have understood the contract to have been reciprocal and mutual. 9 Mass. R. 78 ; 11 Mass. R. 302; 15 Mass. R. 500; 2 Stark. Ev. 90, note M and cases cited.</p> <p>There is a good defence to this action from failure of the consideration of the contract. It is under seal, and the consideration-may be inquired into. Here was a destruction of the property fi-om causes against which the defendants were not bound to guard, before the time fixed in the contract for the enjoyment of the property had arrived. It is like the case, where one party stipulates, that the other shall have an article at a future day, or a sale of property to be delivered at a coming day. The property here being destroyed without fault of the defendants, there is an entire failure of the consideration on which the promise was made. 1 Com. Dig. 297, Day’s ed. and note; 7 Dowl. fy R. 117 ; 1 Moody f Rob. 112.</p> <p>The payment of money into Court merely admits, that the suit can be maintained for the sum brought in. It is only evidence in that case, and not in any other. It has no more to do with this case, than the verdict in the other case has.</p> <p>The effect of payment of money into Court has undergone some alterations, but the present doctrine of the Courts is as above stated. 2II. Black. H. 374; 1 Camp. R. 557; 1 Taunt. 419; 1 T. R. 464; 2 71II. 275 ; 2 Wend. 431; 3 Stark, on Eo. 1004, and cases cited ,• 1 Phil. Em. 149.</p> <p>Here the repairs were in fact made within a reasonable time, and the real question in dispute was, whether so made or not. But this case must be decided on the facts appearing on paper. When there is a written lease, it is not necessary for the plaintiff either to allege or prove an entry or occupation under it, the defendants being parties to it. Oliver’s Free, of Dec. 408, 442; Chilty on Con. 207 ; 4 Har. &f Johns. 564.</p> <p>If the law be correctly stated on the other side, still there is no defence; it was not an entire destruction of the property, and the remedy would have been by an action for not repairing. 11 Johns. R.495.</p> <p>But this is a lease, strictly and technically, and a seal is wholly Unnecessary. Jacob’s Law Die., Title, Lease. Nor is it necessary, that the party should have the immediate right to enter under the lease to give it that character. Ibid. This is a lease, and has all the qualities of one, but even an agreement to give a lease, where no other paper is contemplated by the parties, has been held to be a lease. 3 Johns. 44.</p> <p>This lease contains no stipulations on the part of the plaintiff to make repairs, but on the contrary, there are covenants that the defendant shall keep the premises in repair. The plaintiff certainly is not bound to make repairs. 6 Mass. R. 63 ; 16 Mass. R. 238 ; 3 Johns. R. 44 ; 4 Taunt. 45 ; 18 Vesey, 115 ; 3 Kent, 2d ed. 467; Com Dig. Waste, D. 2 ; 4 Dane, 382; 6 Cowen, 475. It is sufficient in this action, that the plaintiff is not bound to repair, as the defendant has expressly contracted to pay rent.</p> <p>The payment into Court of the money due at the time on this lease, is evidence, as between these parties, in all controversies in relation to it, of its existence at the time, as a valid contract.</p>

<p>This was an action of trespass for taking and carrying away a harness of the value of $30, alleged to be tire property of the plaintiff. The plaintiff introduced testimony to show, that the harness originally belonged to one Jameson, who sold it to the plaintiff; that the harness remained in the possession of Jameson, who was*’ authorised by the plaintiff to sell it for him; that Jameson agreed with the defendant to sell him the harness on condition, that he should pay ten dollars in cásh on the Monday following, and secure the payment of the residue; that the defendant then took the harness, promising to return it the following Monday, if he did not before that time pay the money and give the security; and that neither was done; that the agent of tire plaintiff did not sell the harness, or give tire defendant any permission to keep it, unless payment was made and security given. He also proved, that the defendant afterwards sold the harness to another person.</p> <p>The defendant contended, that there was an absolute sale to him by Jameson, and attempted to prove, that a trustee process had been served on him, as the trustee of Jameson. Among other instructions requested by the counsel for the defendant, was one, that upon the facts testified to by the plaintiff’s witnesses, no demand having been proved upon the defendant, trespass would not lie. Upon this point, Weston C. J., who tried the action, instructed the jury, that trover would have been the more appropriate remedy ; but that if Jameson had made no sale, and had reserved to the plaintiff, whom he represented, the possession on the Monday following his interview with the defendant, the plaintiff was entitled to the immediate possession on Monday, and that the sale and transfer afterwards by the defendant, might be regarded as a trespass. The verdict was for the plaintiff, and was to be set aside, if the jury were erroneously instructed.</p> <p>Trespass will in no case lie, when the goods were lawfully delivered. 1 iSch. &f Lef. 322. No definition of trespass can be found which excludes force directly and immediately applied. The criterion of trespass is force directly applied. 2 Sergt. Sf Rawle, 360. The original act must be wrongful, and no subsequent act by relation can make the act, originally lawful, a trespass. 1 Wend. 109; 3 Wend. 242 ; Rutter’s N. R. 32. Detention does not make one a trespasser. 20 Johns. 467 ; 15 Johns. 401 ; 7 Johns. 140. The person guilty of a wrongful act is not of course a trespasser. Where the bailee of a beast put out to bo kept, shall sell or kill it, he is not liable in trespass, though doubtless he would be in trover. The principles on which the two actions are founded are different, and frequently higher damages can be recovered in trespass than in trover. 2 Saund. 47, note 1; 4 East, 110 ; Co. Lit. 200 ; Com. Dig. Trespass, D; Rro. Trespass, 216; 1 T. R. 480; 1 Bur. 35 ; Cro. Eliz. 824 ; 12 Wend. 536 ; 14 Johns. R. 352; 4 Pick. 467. Trespass ab initio is confined to cases of authority conferred by law. 5 Taunt. 198 ; 5 Dane, 557 ; 5 Rae. Abr. 162 ; Com. Dig. Trespass, D; 11 Johns. R. 380.</p> <p>contended, that the sale by the defendant to a third person, after the license to retain the property had expired, made him a trespasser. All right over the property had ceased, and any act of the defendant in relation to it, injurious to the plaintiff, was without justification or excuse, and made him a trespasser. 3 Stark, on Ev. ed. by M. fy J. Trespass, and authorities there cited. It is very easy to run through the books, and show, that upon any given state of facts trespass will or will not lie. The books mean merely, that where the taking was rightful, and there has been no subsequent misuse of the property, that trespass will not lie. In this case, if the defendant had merely neglected to return the harness on Monday, perhaps trespass could not have been supported. But' after that time he disposed of the property to a third person, who took it away beyond the reach or knowledge of the plaintiff. He had no more right to do this, than to have taken the harness from the stable of the plaintiff without leave, and sold it. Nor is there any ground for saying, that where the taking was originally by consent for one purpose, and the property is converted to a different purpose, that trespass will not lie. If the defendant had borrowed a horse to go to Oldtown, and had gone to Augusta, directly the other way, he would have been liable in trespass. He could not justify the act by airy authority from the owner.</p>

Exceptions from the Court of Common Pleas. The action was assum/psit on the following order. “ Messrs. E. &/• S. Smith, For value received of Levi Oram pay him or bearer forty-one dollars and twenty-four cents in three days, and place the same to my account. Yours, &c., George Sherburne.- Becember 20, 1833.

<p>The action was covenant broken, founded upon a deed of defendant covenanting among other things, that the lot conveyed to the plaintiff, No. 18 in the 4th range, Williams College township, was free of all incumbrances, and alleging as a breach, that the premises were encumbered by a mortgage of 6000 acres, lying in common and undivided with the residue of said township, made by the defendant to the Trustees of Williams College. The plaintiff gave in evidence his deed and the mortgage, and there rested, claiming only nominal damages, as the mortgage was not paid off. This was resisted by the defendant, on the ground that the lot in question was not incumbered by the mortgage. The defendant then gave in evidence a deed to him from Nathaniel Ingersoll, of 8000 acres of land, with the same description, as that in the mortgage to the College, bearing date the same day, and all a part of the same transaction. He then gave in evidence deeds to him of fifteen hundred acres more, in the same township, in common and undivided with the residue of the township; also a deed from tire Commonwealth of Massachusetts to the Trustees of Williams College ; and also the same organization of the proprietors and partition of lire township, mentioned in Williams College v. Mallett, 3 Fairf. 398. At the meeting of the proprietors it was voted to set off to said IngersoU thirteen lots, and to said Mallett fourteen lots of 100 acres each, on which improvements had been made, and which were described in the vote as having been sold by Mallett to settlers and as settlers’ lots, one of which was the lot in question. The defendant also offered to prove the attachment and sale of the equity of redemption of the defendant in the land described in the mortgage, and a deed by the officer, enumerating between 50 and 60 of the lots, but this lot was not included among them. Parris J., before whom was the trial, excluded this testimony. If the evidence offered ought to have been received, or if the evidence which was received was sufficient to sustain the defence, tire default was to be taken off.</p> <p>1. There is no incumbrance on the plaintiff’s lot, fire defendant owned 1500 acres more than he mortgaged to tire College, and there is no certainty, that the mortgage will fall on any part of this lot. The mere possibility of an incumbrance will not support an action. It must be fixed, certain and determined. Barnard v. Fisher, 7 Mass. R. 71; Borden v. Borden, 5 Mass, R. 75; Powell v. Monson Man. Co. 3 Mason, 365.</p> <p>, 2. If there was originally an incumbrance, it was extinguished before the commencement of this action. Partition had been made by tire proprietors and this was binding upon them. Williams College v. Mallett, 3 Fairf. 398. The interest of tire College attach-' ed only to tire land set off to Mallett other than the settlers’ lots; and the land left was more tiran fhe land mortgaged. Crosby v. Allyn, 5 Qreenl. 453. On a division of the remaining lands, were that necessary, these lots would be assigned to the settlers.</p> <p>3. In the sale of the equity, this lot was excluded in the officer’s deed, and when the mortgage is paid off by the purchaser, he can have no claim on this lot.</p> <p>remarked, that if all the facts had been known at the time, the action would not have been brought, but as it was here, the law must decide it. He admitted, that the partition was binding, but argued, that the effect of it was to confine the claim of the College, under the mortgage, equally over the remaining 7500 acres, instead of extending over the whole township ; and thus increasing, instead of diminishing, the lien by the mortgage on this lot, existing at the time of the conveyance to die plaintiff.</p>

This was an action of assumpsit, for money had and received, brought in die names of Thomas F. Kennedy, Thomas D. Scudder and Calvin W. Kennedy, and for the benefit, as it was proved, of Josiah Scudder.

<p>"What is, or is not, a reasonable time within which a party may rescind a contract, where no time is fixed by its terms, is a question of law.</p> <p>In the absence of all testimony, tending to show that so long a period was necessary, it was held, that a delay of two and an half months was beyond a reasonable time.</p>

This was a bill in equity, and was heard on bill, answer, and proof.

This was a writ of entry on the seisin of the demandants. They derived their title to the lot in question, being 95 containing 110 acres, from Knapp and associates to whom the Commonwealth of Massachusetts granted the territory, now embraced within the limits of Brewer &f Orrington, on the 29th of June, 1785, the deed being recorded May 2,1798.

This was an action of trover for a note, the writ being dated Sept. 9, 1834.

This case came before the Court on a statement of facts, of which a copy follows. This is an action of trover, brought to recover the value of a horse, which the plaintiff alleged to be his property, and to have been converted by the defendant, on the second day of May, 1834.

This was an action on the case, against the defendant, as Constable of Bangor, for not keeping property by him taken on a writ, at the suit of the plaintiff, to respond the judgment rendered thereon.

This was an action of assumpsit, brought February 8, 1834, upon a note of hand, dated Nov. 25, 1832, wherein the defendant promised to pay the plaintiffs $992,56, on demand with interest; also upon an account annexed for merchandize for $ 183,77. The note declared on was adduced in evidence, upon which there were certain indorsements. It was admitted, that the plaintiffs had furnished the defendant the merchandize stated in the account annexed.

This was an action of assumpsit on a joint and several note of hand, signed by the defendant and one Harry Padelford, for the sum of $150, dated February 26, 1834, payable to Solon Beale or order, in 60 days, and by him indorsed to one Orff in blank, and indorsed in the same manner by Orff.

<p>Exceptions from the Court of Common Pleas, May Term, 1835.</p> <p>The action was replevin, originally commenced before a Justice of the Peace, and before March 21, 1835. The defendant justified the taking as an officer, by virtue of a writ of attachment against the plaintiff. It was attempted to be proved on the part of the plaintiff’, that the goods replevied were exempted by law from attachment. T. P. Chandler, for the defendant, objected, that if this point were made out in evidence, that still the action of replevin would not lie; and the Court of Common Pleas sustained the objection. To this ruling, C. Gilman, for the plaintiff, excepted, and entered the action in this Court upon the exceptions.</p> <p>moved to dismiss the action, because exceptions will not lie in this case, the suit having been commenced before the passage of the act of 1835,' giving the right to except in such actions; and cited st. 1822, c. 193; Witham v. Pray, 2 Greenl. 198.</p> <p>contended, that exceptions would lie, as the trial was after the passing of the act.</p> <p>The question raised at the C. C. Pleas was also argued by the counsel.</p>

Exceptions from the Court of Common Pleas. Assumpsit against the defendants, as indorsers of a promissory note made by one Stover Riñes and payable to them, or order, for the sum of ^1300,00, dated June 1, 1835, and payable in six months.

Exceptions from the Court of Common Pleas. The action was assumpsit on a promissory note made by the defendant, payable to one Edward A. Emerson, witnessed by one S. A. Bailey, and indorsed one month and twenty-two days after it became payable thus, by said Emerson: “ eventually accountable —Edward A. Emerson.” No other words were added to the indorsement at tbe trial.

<p>Representations by a creditor to a debtor, that he did not wish for the property so much for his own security, as to secure it to the debtor from attachment by other creditors, made to obtain a bill of sale of property to secure a debt, then justly due, are not conclusive evidence of fraud; but circumstances merely to be left to the jury from which fraud may be inferred.</p>

<p>Exceptions from the Court of Common Pleas.</p> <p>The action was assumpsit, the writ bearing date, May 8, 1835, in which the plaintiff claimed §76,50 for work and labor done from Nov. 1, 1834 to April 9,1835. The plaintiff proved by one Stubbs, that about the first of Nov. 1834, that one TI. S. Rowe hired the plaintiff to work the winter season in the woods, at $16 per month, and at the same time Rowe said, he would get the defendant, who furnished his supplies, to say that he would be hold-en for the plaintiff’s wages ; that on the 22d of Dec. following, he was present with the plaintiff, defendant and Roive, and that the defendant said to the plaintiff, that he would be accountable to him for his winter’s work, and that if the plaintiff should want any goods during (lie winter, to send to his store in Bangor, and they should be furnished; and that he would pay the plaintiff his wages in June or whenever the lumber came down, and the witness stated that the lumber was down, 'May 3, i 835. The same witness stated that Rowe hired the plaintiff, witness and other hands to work that winter. Another witness, called by the plaintiff, stated that in the last of Dec. 1834, Brown was in the woods and Locke asked him, whether, if he sent for goods at his store towards his wages, he could get them; to which Brown replied, yes, there would be no difficulty. The witness on cross examination stated, that he was hired by Rowe, and that Brown was not, to his knowledge, accountable for the wages of any of the men. Another witness said, that in March, 1834, he heard the defendant say, that he was to pay the men, if they did a good winter’s work, and he thought they had so done. To show that the plaintiff would not be likely to trust Rowe, the plaintiff proved, that Rowe was committed to prison Jan. 6, and took the poor debtor’s oath Jan. 25,1835. To the admission of this last testimony the defendant objected, and the objection was overruled. Upon this evidence, Appleton and Hill, counsel for the defendant, requested the Court, Per ham, J. presiding, to order a nonsuit, but the Court declined. The defendant then called his clerk, who testified, that in April, 1835, the plaintiff called at the store, and said, that he would work no longer, and would leave the woods, unless the defendant would be accountable to him for his wages, and that Brown agreed, that if the plaintiff would go on and work, he would pay him after that time, and that nothing was then said about Brown’s being accountable for any thing before that time; and the witness also stated, that the plaintiff afterwards presented an order to Brown for the amount due, and requested payment, that Brown refused, and the plaintiff said he would sue him; and that Rowe was indebted to Brown for supplies furnished for lumbering. The defendant also introduced, without objection, papers of which the following are copies.</p> <p>“ This may certify, that I agree to be accountable to James Locke for what work he may do for Rogers S. Rowe, in running and rafting lumber from Madaceunk from this date, until said Rowe shall get what lumber he has on the land rafted and run to Ban- , gor, at the rate of $1, per day, reserving the privilege of dismissing said Rowe, if I please. B. Brown.</p> <p>“Bangor, April 11,1835.”</p> <p>“ B. Brown to James Locke, Dr.</p> <p>1835, May 7. To 20 days labor, horn 10th of April to 3d of May, done for Rogers S. Rowe, at 6s. $20,00.</p> <p>“Rec’d pay, James Locke.”</p> <p>The defendant’s counsel requested the Court to charge the jury, that upon this evidence, that the hiring by Rowe, was an original undertaking by Rowe, and that to render Brown liable, he must have promised in writing, and that by law, the plaintiff could not recover; and that it was incumbent on the plaintiff to prove, before he was entitled to recover, that the lumber had all been run to Bangor before the action was commenced. But Parham J. did not so instruct the jury, but directed them, that to make the defendant liable, they must be satisfied, that he was originally so liable, and that the credit was given to him, and to inquire, if Rowe had authority from Brown to bind him, when he hired the plaintiff; or " if the defendant had subsequently ratified the contract so made by said Rowe; and if not, the action could not be maintained. The Judge referred the jury to the evidence, and left them to find for the plaintiff or defendant according to the facts, as they should find them. • The verdict was for the plaintiff, and the counsel for the defendant excepted to the rulings and instructions of the Court.</p> <p>enforced the several positions taken at the trial, and cited, Miller v. Lancaster, 4 Greenl. 161; Roberts on Frauds, 218; Chitty on Contracts, 201; 8 Johns. R. 37; 2 T. R. 80; 1 H. Black. 120; 3 Car. fy P. 130; 10 Barn, fy C, 664; 2 Peters’ B. 551; 6 Pick. 511; 13 Wend. 259; 2 H. Black. 116; 4 Car. Sy P. 295; and 15 Mass. B. 75.</p> <p>said, that the question, whether the work was completed according to agreement, before the commencement of the suit, was solely for the consideration of the jury, and presented no question of law on the exceptions.</p> <p>The main question, whether the contract was within the statute of frauds, was properly left to the jury. They were instructed to inquire, whether the defendant undertook originally, or only collaterally ; whether the defendant did or did not make himself originally liable; and to return their verdict, as they should find, one way or the other. The cases cited by the counsel for the defendant, show that the Judge of the Court of Common Pleas was right. The testimony, that Bowe was insolvent, and had taken the poor debtor’s oath, was competent to enable the jury properly to decide the question of the defendant’s original liability.</p>

<p>An action of assumpsit, as implied by law, is never the proper remedy against a public officer for neglect, or misbehaviour, in his office.</p> <p>Before an action can be maintained on a sheriff’s, or constable’s official bond, the party seeking that remedy must obtain a judgment against the officer, founded directly upon his official delinquency.</p> <p>A judgment against a constable in an action of assumpsit, declaring for money had and received, or on an account annexed to the writ, on a promise implied by law, is not sufficient evidence to support an action on his official bond.</p>

<p>Exceptions from the Court of Common Pleas.</p> <p>This was an action of trover, for'* 100 M. pine shingles, marked W. The plaintiffs, to maintain the issue on their part, claimed title under one Temple M. Perry, and introduced a permit or license, given by Charles Ramsdell to said Perry, of which the following is a copy.</p> <p>“ Permission is hereby given to Temple M. Perry to cut and make into shingles and clapboard cuts, and carry the same away, any-down timber or such as is not suitable for board logs ; and if said Ramsdell and Perry cannot agree as to the price of stumpage, the same is to be referred to Daniel Davis of Oldtown, and said Perry has liberty to cut saplin pine timber, for timber, any where round the shad pond, and not interfering with permits already agreed for; and payment to be made in June next.</p> <p>“ Bangor, July 30, 1833.</p> <p>“ Chas. RamsdelV’</p> <p>The plaintiffs also introduced a bill of sale from said Perry, of which the following is a copy.</p> <p>“Messrs. Jewett Wyman, bought of Temple M. Perry one hundred thousand of pine shingles now on the bank of the Millinocket river, in the East Indian township (so called) in the county of Penobscot, valued at two hundred and fifty dollars, and receiyed payment by credit on said Jewett Sf Wyman?s books; and I further agree to run the above described shingles to Bangor as soon as there shall be a sufficient quantity of water, to run them in good order and free of expense to the said Jewett Sf Wyman, and deliver the same to them or their agent, William C. Crosby, and if the above described shingles sell for more than two hundred and fifty dollars, the said Jewett Sf Wyman are to allow me the overplus after taking out the expense of selling, if there should be any.</p> <p>“ Sebee, Oct. 24, 1834.</p> <p>“ Temple M. Perry.”</p> <p>The plaintiffs offered no evidence of any written assignment of said permit to them, or any assignment, except it was to be inferred from the fact of their producing it on trial and having delivered it with the bill of sale and writ, to an officer in June, 1835. There was no direct evidence that the plaintiffs ever took possession or had a delivery made to them of the shingles, but it was proved that certain shingles on said township, were, previous to April, 1835, marked W. in the woods, and that the plaintifis made claim to such shingles by directing an officer, who had a writ in their favor against said Perry, not to attach shingles marked. W. but to take them as their property under the bill of sale, which together with the permit were delivered him with the writ. Also the fact that W. is the initial letter of the surname of one of the firm of Jewett Sf Wyman; and the witness testified that from the appearance, he should think there were as many as 100 M. with that mark.</p> <p>The defendants claimed title under the same Temple M. Perry by purchase of Joseph Chase at Bangor, in June, J 835 ; and introduced a bill of sale from said Perry as follows.</p> <p>“Sept. 9, 1834. — This day sold Joseph Chase one hundred thousand pine shingles, now lying on the bank of the Millinocket stream, up the Penobscot river, of which he is to hold to all intents and purposes, for collateral security for a debt he is holden to Thomas F. Hatch of Bangor, for me, of thirty-five dollars; also for two notes said Chase now holds against me : — viz. one of sixty-two dollars and thirty-five cents, the other for eleven dollars and fifty cents; said notes on interest.</p> <p>“ Temple M. Perry.”</p> <p>And the plaintiffs proved, that in May, 1835, said Chase took possession of a part of said shingles marked W. and run them with other shingles to Bangor, and sold them to the defendants, who are merchants in Bangor. It was in evidence, that there was a large quantity of shingles on the township, made by the Berrys, under the permit, besides those marked W. The defendants introduced evidence to prove that the shingles were delivered the said Chase’s agent under the bill of sale to him; and the plaintiffs _ produced evidence to rebut and contradict it, which were left to the jury, by Perham J., with directions to inquire, and if they found the shingles marked W. had been delivered to Chase, under his bill of sale, before they were taken possession of by the plaintiffs, and that Chase had no notice of the plaintiffs’ interest in them, to return their verdict for the defendants. The witness thought defendants bought of Chase about 190 M. shingles that were cut on the township, in the winters 1833 and 4, and 1834 and 5, and no evidence was offered to show how Chase obtained his title to more than 100 M. The price of shingles at Bangor was from ‡3 to $4. The defendants contended, that said permit, thus introduced, could give no right to the plaintiffs, but on this point, Perham J. instructed the jury, that they might infer, if they were satisfied from the evidence that said permit was delivered to said plaintiffs to secure them.for the supplies which they had or might furnish said Perry, and if it was so assigned it would give the plaintiffs a right to hold, by a lien thereon, the shingles made of the timber taken under said permit, but he- did not instruct them, that it would give the plaintiffs any lien on the timber before it had actually been cut and taken by said Perry. The defendants also insisted, that there was no proof of a delivery to said plaintiffs, and no evidence from which a delivery could be inferred; but the Judge instructed the jury, that they might from all the evidence infer a delivery, if they were satisfied there had been one made, or possession taken of the shingles under the plaintiffs’ bill of sale. The defendants also contended, that by the terms of the plaintiffs’ bill of sale, it was conditional, and that no property or right of possession in the shingles vested until a delivery to them or their agent in Bangor. But the Judge instructed the jury, that they might regard the bill of sale as giving the plaintiffs a right to immediate possession. The jury returned a verdict for the plaintiffs, and gave damage $ 266,06. To which rulings of the Court, the defendants’ counsel excepted.</p> <p>enforcing the grounds taken at the Court of Common Pleas, and citing, 3 Stark, on Eh). 1245 ; Commonwealth v. Parmenter ,~5 Pick. 279; Flagg v. Dry den, 7 Pick. 52; Emerson v. Fiske, 6 Greenl. 200; Pease v. Gibson, ib. 81 ; Melvin v. Whiting, 13 Pick. 184 ; Brewer v. Smith, 3 Greenl. 44 ; Marston v. Baldwin, 17 Mass. II. 610; Gleason v. Drew, 9 Greenl. 79 ; Ward v. Sumner, 5 Piclc. 59; Badlam v. Tucker, 1 Pick. 389; Reed v. Jewett, 5 Greenl. 96.</p> <p>and cited Meyer v. Sharpe, 5 Taunt. 74 ; Giles v. Nathan, 1 Marsh. 226; Shumway v. Rutter, 7 Pick. 56 ; Lanfear v. Sumner, 17 Mass. R. 110 : Parsons v. Dickinson, 11 Pick. 852; Tuxworth v. Moore, 9 Pick. 347.</p>

<p>The original action was debt, by which said Fuller, as clerk of a company of militia in Carmel, claimed to recover of the plaintiff in error a fine for not appearing at the place of parade of the company in Hampden, at five o’clock A. M., on the 26th of September, 1834, the commander of said company having been ordered to attend with his company at Hampden for regimental review and inspection, at 7 o’clock, A. M., on the same day. The limits of the company were proved; that one John Fuller was the commander of it; that the plaintiff was duly ajzpointed a serjeant of said company, and that an indorsement was made on the back of his warrant, as seijeant, as follows: —</p> <p>“ This may certify, that I do hereby appoint David Fuller to be Clerk of the 8th Company of Infantry, in the 2d Reg., 2d Brig., and 3d Division, and that he has been duly qualified by talcing the oath required by law, before me.</p> <p>“ John Fuller.</p> <p>“ Carmel, Sept. 25, 1834.”</p> <p>The Company in Carmel was the 8th in that Regiment. It was objected, that this furnished no evidence, that the original plaintiff was Clerk, but the objection was overruled. To show the enrolment of the plaintiff in error, the original plaintiff offered a paper in common form of a company roll, on which was die name of said Hill, and which paper was verified, as a roll, only by the following certificate thereon:</p> <p>“■Militia of Maine. Roll of the 8th Company of Infantry in the 2d regiment, 2d brigade, and 3d division of tire militia, under the command of Capt. John Fuller, as corrected on the sixteenth day of September, 1834. Attest, John Fuller, Capt.”</p> <p>There was no evidence of any other roll. The plaintiff in error objected, that this furnished no evidence of any legal enrolment of said Hill, but this objection was also overruled. There was no date against the name of the plaintiff in error, showing the time when he was enrolled. The company order to one Kimball, who duly left a written notice with said Hill, directed him to warn the persons whose names were set down in the list committed to him. There were no names of any privates of said company on the face of said order, but on the back thereof were several names, and among them that of the plaintiff in error. It was objected, that J&mball had no authority to warn, but this objection was also overruled. It was insisted, that the captain had no right to order his company to appear at Hampden at an earlier hour, than that fixed in the regimental order, but this objection too was overruled. The plaintiff in error did not appear at the place appointed at any time on that day. The said Hill then proved, that he owned land in Newburgh, a town adjoining Carmel, and hired a house and moved into Carmel with his family, April 1, 1834, to live there until he could build a house on his own land; that he worked sometime on the roads in Newburgh during the summer of 1834, but continued with his family to reside in Carmel until long after October, 1834. It was contended that the said Hill was not liable to do military duty in Carmel, in consequence of his residence there under such circumstances, but this objection was also overruled.</p> <p>1. The plaintiff in error was not liable to enrolment in Carmel, because he went there for a temporary purpose only, until he could build a house on his land in another town. 1 Pick. 195 ; 4 Mass. R. 556'; 3 Greenl. 436.</p> <p>2. No legal roll was proved. The only evidence was the certificate of the captain. He is not a certifying officer, nor the proper person to keep the roll. It should have been verified by oath.</p> <p>3. If a roll, it is defective in not stating the time when Hill was enrolled. The forms furnished by the adjutant-general require the time of the enrolment to be stated; and those are binding. 5 Greenl. 438.</p> <p>4. The original plaintiff was not legally appointed clerk. If there was any certificate of qualification, it was before the appointment. There was none after it.</p> <p>5. The company order to warn was irregular on its face, and void. It contained no names of the persons to be warned, and therefore gave no authority to warn any persons. The commander of a company has no authority of his own to order his company to appear out of town, and tire order does not recite, or profess to act under, any authority from the commander of the regiment.</p> <p>6. The regimental order confers no power to warn the company to appear at 5 o’clock, as that directs the appearance to be at 7 o’clock.</p> <p>1. The plaintiff in error moved into the limits of the company with his family to reside and dwell there, and there he would have had a right to vote, and there he is subject to perform militia duty. 7 Greenl. 501.</p> <p>2. The roll was sufficient in itself, and was sufficiently proved to have been a roll, to show a legal enrolment of the plaintiff in error. It is the duty of the captain of the company to enrol the members of it, and the clerk is only to assist him in this duty. The certificate on the roll is to identify and distinguish it from any oilier, and it is to be taken, prima facie, as true. No proof of it is necessary, but if it were, the certificate is enough. As there is no date of the time when the plaintiff in error was in fact enrolled, it must be taken to be when the roll was certified to have been corrected, and that was before the warning. Stat. of 1834, ch. 121, <§> 12; law of U. S. <§> 1.</p> <p>3. The clerk was duly appointed and sworn. The design of the captain to appoint him clerk, and to qualify him for the office, distinctly appears, and that is sufficient. 1 Fairf. 421; 6 Greenl. 217.</p> <p>4. The company order was sufficiently certain, and it was wholly immaterial whether the names were on the face or on the back of the order. Had this been a prosecution against the private to whom the order was directed for refusing to warn, it might have been necessary to have had the names of the privates appeal- on the order; but in this case, it is enough, that Hill was legally enrolled and legally warned, and it is wholly immaterial, whether there was any order or not.</p> <p>5. Hill did not appear at any time, and cannot say, that he was ordered to appear at too early an hour. If the captain did wrong in ordering him to appeal- too soon, the captain may be punished, but it furnishes no excuse for neglect of duty in the private. But it would be impossible for the captain to have his company in a proper state to go upon the field at the time appointed for the Regiment to assemble, unless they were ordered to meet at an earlier hour, and prepare themselves for appearing, as a company. And such is the common practice.</p>

<p>Where the equitable owner of a note, payable to another, recovered judgment upon it in the name of the payee, and gave tho execution to an officer, who took the note of a third person for the amount, payable to the judgment creditor, and discharged the execution j it. was held, that the equitable owner might maintain an action on the last note, in the name of the payee.</p> <p>The possession of a note, payable to a third person, and not negotiated, the declaration of the holder, that it was his property, and the leaving it with an attorney for collection as such, in the absence of all opposing proof, are evidence of an equitable assignment of the note to him.</p> <p>Evidence of such declarations is admissible, as part of tho res gesta.</p>

<p>Where a note, given as the consideration of a quitclaim deed of land, and where there was no fraud, had been paid by the grantee, the money cannot be recovered back, although such grantee has been evicted by an elder and better title.</p>

This was an action of assumpsit, declaring specially on a pro- ■ mise of the defendant to pay tire debt of another upon the consideration of forbearance. The facts sufficiently appear in the opinion of the Court. The action was defaulted, which default was to be taken off, if in the opinion of the Court the action could bo maintained. The case was argued in writing by Gutting, for the defendant, and by W. P. Fessenden, for the plaintiffs. Cutting, cited Rob. on Frauds, Tit.

<p>An old vessel built upon and enlarged and enrolled without intended fraud by a new name, without delivering up the old register, and thereby rendered liable to forfeiture by the laws of the United States, is the lawful subject of insurance against the usual perils of the seas; and the insurers cannot avoid the payment of a loss covered by the policy by reason of such liability.</p> <p>If there be no stipulation in the policy, that the vessel insured is a vessel of the United States, such enrolment by the new name, is competent evidence to prove the property to be in the assured.</p> <p>Where the national character of the vessel is not made a part of the contract of insurance, the want of the proper documents to show such character is not material, unless it appear, that the loss happened, or that the risk was increased, in consequence of the want of such documents.</p> <p>The declarations of a stockholder or of a director of a corporation, are not admissible in evidence against such corporation, made at a time when he was not acting as the agent thereof.</p> <p>Where one agreed to employ a vessel for a certain time, paying for her use a share of her earnings, and during the time and while under his control and while he was acting as Master, a loss of the vessel happened; his declarations, made after the loss, are not admissible in evidence against the owner.</p> <p>Answers to questions put by way of explanation of the testimony called out by the other party, are not admissible in evidence, when the testimony, which they were intended to explain, is excluded.</p> <p>Objections to the form of the questions and to the manner of the examination should be made before the commission issues, when testimony is taken by commission, and when on notice, before the magistrate at the time of the taking; but testimony in itself illegal cannot bo admitted, because objections are not thus made.</p> <p>Where a party takes a deposition he may withdraw it at any time during the first term, and in such case it is not evidence for either party; but if it be left on file after the first term, under rules 31 and 43 of this Court, the opposing party has the right to read it in evidence in his favor.</p> <p>Those rules of Court do not contravene the provisions of the statutes in relation to the taking of depositions.</p> <p>And if the party by whom the deposition was taken shall take the same from the files of the Court after the first term, and will not produce it, the opposing party may read a copy thereof in evidence.</p> <p>The admission of improper testimony in relation to a particular fact, but which fact is wholly immaterial to the issue, furnishes no cause for a new trial.</p>

This case came before the Court on the following statement. The parties agree to the following statement of facts, viz: On the fifteenth day of September, 1835, Samuel Winter of Portland, the plaintiffs’ intestate, then doing a large commercial business, and owing amongst other debts, several notes and drafts, amounting to nine thousand five hundred dollars, on which said Bowman was liable as indorser or surety, and which he has since the death of said Winter been obliged to…

This was a writ of right on the seisin of James Means, the ancestor of the demandants, in fee and in light, within thirty years, and the issue was upon the mere right. The seisin of the said James Means in fee and in right, within thirty years from the commencement of the action, was proved by the demandants.

The action was on a bond from the defendant to the plaintiffs, dated April 7, 1835.

<p>If one draw a bill in his own name, without stating that he acts as agent, unless when acting for the government, he is personally liable; although he directs it to be paid out of a particular fund, and although the person in whose favor it is drawn, knows the drawer was but an agent.</p> <p>Where an agent draws a bill on his principal in such manner as to make himself liable, yet as between them, he may show that it was drawn for the benefit of his principal.</p> <p>Although it may be otherwise in England, in this country the master of a vessel has a lien on the cargo for money expended, or debts necessarily incurred, in that character.</p> <p>The power usually incident to the office of master of a vessel, does not authorize him to purchase a cargo.</p> <p>But if his instructions constitute him an agent for that purpose, and he draw a bill making himself personally liable, and invest the proceeds in the purchase of a cargo, he has a lien thereon for his indemnity.</p> <p>The death of the principal does not deprive the agent of his lien.</p> <p>And if the bill be drawn at a shorter date, than his instructions permit, the principal may disclaim the transaction; but if he claim the property, he cannot deny the agency.</p> <p>Where an agent has a lien on property for his security, the general owner cannot maintain replevin against him for it, until the lien be discharged.</p>

<p>The word bond does not necessarily imply an instrument under seal, or with a penalty, or forfeiture.</p> <p>Parol evidence is admissible to show, that in a certain description of contracts, any instrument in writing is considered a bond by the parties.</p>

This was a writ of error. The action was originally brought before a Justice of the Peace, where the defendant in error prevailed, and the other party appealed. At the Court of Common Pleas, the defendant in error again recovered judgment, and the then defendant, now plaintiff in error, filed exceptions and brought Iris writ of error. At a former term of this Court, the judgment was reversed, because the Court of Common Pleas had admitted illegal evidence.

This was an action for an injury sustained by the plaintiff in the loss of a horse through a defect in a highway within the town of Standish, which the defendants were bound to keep in repair. A question of law was. reserved for the opinion of the whole Court, and a motion for a new trial was made, because the verdict was against evidence, and the whole testimony was reported in Ml, from which such facts are gathered, as will present the question of law.

<p>Where a corporation, established with power to erect a bridge across a river and take toll of passengers, adopted as part of their bridge a way made by individuals, of a few rods extent, being tho only entrance from the public highway to the bridge; and a traveller on passing over this way to the bridge where ho paid toll, had his horse injured from a defect in such way; it was held, that the traveller was entitled to recover of such corporation the damage sustained thereby.</p> <p>And if the traveller expend money in a prudent, but ineffectual, attempt to cure the horse, which finally died in consequence of the injury, he may recover it of the corporation in addition to the value of the horse.</p> <p>A party may prove what a deceased witness had testified to, at a former trial of the same action.</p> <p>A verdict will not be set aside merely because immaterial testimony has been erroneously admitted at tho trial.</p> <p>A stockholder in a toll bridge corporation is not a competent witness for that corporation on the ground of interest; and the provisions of the Rev. Stat., ch. 87, for admitting inhabitants of towns, and certain other colorations as witnesses,” do not render such stockholder a competent witness for the corporation.</p>

Tins was a writ of error, brought to reverse a judgment before a Justice of the Peace, in an action for a fine for neglect to appear at a company training, by the then plaintiff, as well as now plaintiff in error, as clerk of a militia company in Westbrook. To show the enrolment of the defendant, the plaintiff produced a roll of the company, with the name of the defendant thereon, in the form provided by the Adjutant General of the State.

Assumpsit on an account annexed to the writ, a copy of which follows: — “ Nicholas W. Manson “ to Robert Leighton, 3d, and Joshua Gowen, jr. Dr. “ 1831, Dec. 20, To 3551b. beef, at $4£ pr. cwt. $15,97 ” ” ” 360 ” AÍ ” 16,20 $32,17 The plaintiffs were surviving partners of one Prince. The co-partnership of the plaintiffs and Prince was admitted, and the death of Prince, before the commencement of the suit, was proved.

Assumpsit for money paid, laid out and expended, and for money had and received. The defendant had an interest in a tract of land owned by an association, of whom J. W. Appleton was one, called the Languedoc tract, under said Appleton, with the privilege of being interested in any other lands the association might purchase on paying his share. This interest the defendant assigned to one Locke, on certain conditions, and Locke assigned to the plaintiff.

<p>This was an action of replevin for a quantity of mill-logs, and came before the Court upon a statement of facts agreed by the parties, in substance, as follows. Isaac York, one of the defendants, owned a small farm in Standish, of about thirty-five acres, about half of which was woodland, with some timber upon it, and the residue improved land, with the buildings and fences thereon much out of repair; and on the 14th of Oct. 1831, by deed of warranty conveyed the same to his son Joseph. This deed was in common form, except that immediately following the description of the land, and preceding the habendum, were these words, “reserving to myself the use and control of the above described lands during my natural life.” Joseph York, the grantee, on Nov. 24, 1834, conveyed all the pine and hemlock trees upon said land to the plaintiff,' “ reserving so much of said trees and timber for the benefit of Isaac York, who has a life estate in the premises, as shall be necessary, convenient and indispensable to the enjoyment of the premises aforesaid during his lifetime, the quantity reserved and left to be ascertained and designated by Isa&c Spring." At this time Isaac York was poor and unable to support himself, and the income of the real estate was wholly insufficient for that purpose, and in Dec. 1834, he agreed to sell a quantity of timber from this land to be delivered on the bank of Saco River, “ intending to appropriate the proceeds of the sale to his own support, and had he been permitted so to apply it, he would have had no more, than a comfortable provision thereunto.” He with the other defendant proceeded to cut the timber, but before it reached the river it was replevied in this suit.</p> <p>and insisted that the greatest estate Isaac York could possibly have, was a life estate; that tenant for life had no right to cut down timber, that being the first thing noticed in the books, as waste; that the restriction was carried so far, that even the tenant for life could not sell firewood to be carried from the land, or clear up woodland for cultivation, much less to cut timber for sale; that when the timber was severed, it belonged to the reversioner under whom the plaintiff claims, and whose rights he has, and that replevin was the proper action in this case. He cited 5 Greenl. 232; 1 Cruise, 130; 1 Coke Lit. 52, a; 7 Johns. R. 233; 7 Pick. 152; 5 Mason, 13; 1 Greenl. 6; 15 Mass. R. 164; 10 Mass. R. 303 ; 3 Atkins, 216; Hob. 234; 2 Peere Wms. 141; 3 Peere Wms. 266; 8 Pick. 309 ; 1 Cruise, 138 ; 4 Mass. R. 266 ; 5 Mass. R. 341; 3 Dane, 187; 5 Mass. R. 280 ; ib. 303 ; 15 Mass. R. 362 ; 16 Mass. R. 147 ; 4 Greenl. 306; 1 Coke Lit. 53, a; 2 Cro. Eliz. 533 ; 1 Vem. 23 ; 2 Vem. 738; Rev. Stat. ch. 34.</p> <p>contended, that the action could not be maintained, because the sale to the plaintiff gave him no right to the trees, it being a mere injury to the freehold; that if any person could maintain the suit, it must be the tenant of the freehold, and not the plaintiff; that if the trees were sold, as personal property, and could otherwise pass, that a delivery was necessary; that the true construction of the deed was, that the reservation gave to Isaac York all the rights over the real estate during his life, that he would have had, if the deed had not been given, Joseph being to have it only, as it was left at Isaac’s death; that the smallest estate Isaac could take was a tenancy for life without impeachment of waste; and that if there was any remedy, it was by bill in equity, and not by this action. He cited 1 Chitty on PI. 146; 9 Mass. R. 112; 15 Mass. R. 310; 4 Greenl. 376 ; 5 Greenl» 277; 12 East, 221; 1 Vesey,jr. 484; 2 Peerá Wms. 241; 4 Coke, 62.</p>

Exceptions from the Court of Common Pleas. Assumpsit for money paid for the defendant as his sureties, as collector of taxes in the town of Gorham. The plaintiffs proved that they were sureties of the defendant on his bond to the town. They also proved, that they gave a note to the town, the amount of which was indorsed on the bond, and that the note was after-wards paid by them.

Exceptions from the Court of Common Pleas. Assumpsit by the plaintiff, as indorsee, against the defendant, as indorser, of a promissory note, of which the following is a copy. “ $350. Boston, Oct. 31, 1835. “ Eight months after date, I promise to pay to the order of J. Fairbank, at Tremont Bank, in Boston, three hundred and fifty ' dollars, value received with interest.

Assumpsit for seaman’s wages. On the trial the plaintiff read in evidence the deposition of Jeremiah Staples, taken under a commission from the Court. The counsel for the defendant objected to the ansiver by the deponent, to the last cross-interrogatory of his client, as being inadmissible, and not called for by the inquiry, and as being contrary to the express import of the inquiry. Emery ./., presiding at the trial, overruled the objection.

<p>It is the duty of Courts to give effect to contracts, however unskilfully drawn, if the intention of the parties can be understood; and they can be enforced without a violation of the rules of law.</p> <p>A latent ambiguity in a deed may bo removed by evidence aliunde.</p>

This was an action of assumpsit, against the defendant, as drawer of a bill of exchange of which the following is a copy. “No. 1. Held: but the agent is not. Winter authorized the drawing, and had the benefit of the proceeds, and is held for that cause. Enough appears to show., that the defendant intended to bind the principal, and not himself, and that this was known to the plaintiff at the time. Bayley on Bills, ed. of P. S. 73 ; Mann v. Chandler, 9 Mass.

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. The suit was brought on a promissory note dated Dec. 9, 1831, given by the defendant to one Dennis Johnson, and by him indorsed to -the intestate, John Lowell, deceased, for the sum of $220 payable in one year with interest. There was a special count on the note in the declaration and the money counts. Besides the general issue, there was a brief statement alleging that the note was void for usury.

Hanson Field was indicted for manslaughter in killing one Nathaniel Field, on the 22d of Dec. 1835. The prisoner and the deceased both occupied different parts of the same house. It appeared at the trial, that the prisoner and the deceased had both been drinking on that day, and had had a violent quarrel about half an hour before tire one in which Nathaniel was killed, in which both were badly injured, the injury to Nathaniel having been inflicted with an axe.

<p>This was an action of debt, alleging that the defendant, on the 6th of Feb. 1836, by his writing obligatory of that date, duly executed and delivered, bound and obliged himself to pay the plaintiff the sum of five hundred dollars. The instrument declared on, and produced in evidence by the plaintiff on the trial, was under seal, and signed by both parties. By it, the plaintiff agreed to sell to the defendant one eighth part of a tract of timberland in New Hampshire, “ at the rate of one dollar for each and every thousand feet of sound pine trees, suitable for making merchantable boards,” one fourth part to be paid on the delivery of the deed, and the residue in three annual payments, secured by a mortgage of the premises. The quantity of timber was to be determined by three persons named in the paper, and the- plaintiff was to prepare and have ready at a place also named, a good deed of warranty of the land within ten days after receiving the report of the quantity of timber, subject to a mortgage made by the plaintiff thereon for a part of his purchase money. The plaintiff agreed to give an obligation to pay off that mortgage, or to take the amount due on the same in part payment. The defendant agreed, that he would make the purchase of the land on the terms, and would within ten days after notice of the deed being ready, be there prepared to make the payments and complete the purchase. The concluding part of the agreement, excepting the dates, was: “ And the parties aforesaid do hereby respectively bind themselves each to the other in the sum of five hundred dollars, for the faithful performance of the several agreements herein above entered into, together with the expense of the survey.” The persons agreed on made their estimate of the quantity of timber, both parties being present at the time, and gave notice to each of their doings. While they were examining the timber, one of the committee, with the knowledge of both parties, and neither objecting thereto, Vas absent one day. The plaintiff left a deed according to the agreement at the place, and also some other papers, whose contents did not appear; and the defendant was seasonably notified thereof, but neither said nor did any thing. Emery J., presiding, instructed the jury, that the sum of five hundred dollars, mentioned in the bond, was liquidated damages, and not a penalty. The verdict was for that sum and interest from the date of the writ, which verdict was to he set aside, if that instruction was erroneous.</p> <p>contended, the sum of $500, mentioned in the instrument, was to be considered but a penalty attached to the non-performance of the condition, and not as damages fixed on by the parties for any and every failure in complete and full performance. The intention of the parties was, that this should be the extent of their liability, and that the real damages only should be given. This is precisely the case contemplated in the Rev. St. c. 50, ■§> 2. He cited and commented upon the following authorities. Perkins v. Lyman, 11 Mass. R. 16; Smith v. Dickinson, 3 B. &f P. 630; Brown v. Bellows, 4 Pick. 179; Merrill v. Merrill, 15 Mass. B. 488; Stearns v. Barrett, 1 Pick. 451; Dennis v. Cummins, 3 John. Cases, 279; Lowe v. Peers, 4 Bur. 2228; Roy v. Duke of Beaufort, 2 Atk. 190; Graham v. Bickham, 4 Dallas, 149.</p> <p>said, that upon the facts, the plaintiff was clearly entitled to recover something. The deed was to be given up only when payment is made. West v. Emmons, 5 Johns. R. 179. It is difficult to state any fixed rules adopted by the Courts on the main question, whether the sum was to he considered a penalty, or as liquidated damages. In this case, the defendant was not to do many things, but one thing, to purchase and pay for the land. Perhaps the best rule may be, that where the Court would not interfere on a bill in equity to grant a specific performance, hut leave the parties to their remedy at law, the sum specified is to be considered as liquidated damages. Slosson v. Beadle, 1 Johns. B. 72; Tingley v. Cutler, 7 Conn. 291. Generally, where a small sum is fixed to ensure the performance of a large contract, the sum specified is to be considered as liquidated damages. The Court are to be governed by the intention of the parties. No case has been found, where the sum was held to be liquidated damages, when the word penalty was used; but with that exception, no particular form of words is necessary to make it one or the other. Where all the prominent circumstances are combined, as in this case, tending to show that the sum was intended to be liquidated damages, the Court cannot hesitate. Kemble v. Farren, 6 Bing. 141; Loive v. Peers, 4 Bur. 2229; Fletcher v. Diche, 2 T. R. 32; 1 Dane, 549, ■§> 18 ; 2 Ver. 119 ; 3 Taunt. 469; 3 B. Sf Aid. 695.</p>

The defendant was appointed executor of the last will of Daniel Lunt, on the 2d of March, 1824, accepted the trust, and complied with the requirements of law, in giving notice of such appointment. Within four years of that time the plaintiff, as executrix of the will of Samuel McLellan, recovered a judgment against the estate of Daniel Lunt under the administration of the defendant, as his executor.

This was a bill in equity, against Cross, Wyer, and Noble, alleging, among other things, that Cross and Wyer were indebted to the plaintiff, and had agreed to convey to him a certain tract of land, desci'ibed in the bill, in part payment, and that Cross and Wyer bad conveyed their property, including this land, to Noble for the purpose of defrauding the plaintiff; and seeking a discovery, as well as alleging a fraudulent combination of the three defendants, and asking for a…

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. The action was trespass for breaking and entering the close of the plaintiff, being lot No. 65, in the town of Cumberland. The plaintiff claimed title to the land under a deed from David Spear, dated and executed Sept. 20, 1828, and recorded the 22d of the same month.

<p>Exceptions from the Court of Common Pleas, Whitman C. J. presiding.</p> <p>Assumpsit against the defendants, as indorsers of a promissory note, made by Hanson &p Hah to Pelatiah Harm,on, one of the defendants, or bis order, dated Nov. 27, 1835, and payable in four months and grace. On the back thereof was indorsed, in the handwriting of Harmon, P. Harmon, Harmon &f Silsby, in blank. Harmon was defaulted, and the defence made by Silsby. Due demand and notice were proved by a witness, of whom the counsel for Silsby proposed to inquire, what declarations were made by Silsby at the time the notice was given to him as indorser. Objection was made, and the Judge ruled, that, as the plaintifF was not present, that the declarations were not admissible. The plaintiff proved a publication of partnership between the two defendants, “ under the firm of Harmon if Silsby,” published by their order, On the 24th of Dec. 1835, and a notice similarly published on the 15th of April, 1836, of the dissolution of the partnership by mutual consent, and a direction to all indebted to the firm to make payment to Harmon, who was authorised to settle the partnership concerns. The plaintiff then proved, by a broker in Portland, where the defendants lived, that Harmon, after the copartnership was formed, brought the note to him and wished to raise money on it; that the witness suggested, that there was more strength wanted on the note, and that if the firm of Harmon &/• Silshy was indorsed upon it, he thought he could get tire money, and that Harmon thereupon, in presence of the witness, wrote the name of the firm Harmon tf Silshy, Silshy not being present, and that the witness then took the note to the plaintiff who gave him a certain sum of money for it, and less than the face, but the precise sum he did not remember, which sum he paid to Harmon, after deducting his commissions for doing the business. He did not communicate to the plaintiff in what manner the names, “ Harmon Silshy” came upon the note. Silshy then offered to prove, that the note was made in pursuance of an agreement between the makers and payee for the purpose of raising money, which when obtained was to be divided between them for their individual purposes ; but as no knowledge thereof was communicated to the plaintiff the Judge rejected the evidence. He then offered the cash book and other books of the firm, to show that the money was never received by the firm, to which the plaintiff objected, and they were excluded by the Judge. Silshy contended, that the plaintiff was not entitled to recover, but the Judge ruled otherwise. The verdict was for the plaintiff, and Silshy excepted.</p> <p>contended, that the indorsement of the partnership name by Harmon was a fraud upon Silshy, and void. Fraud vitiates all contracts. To charge both partners, the business müst be done in the usual course of partnership transactions, which was not the case here. 15 Mass. R. 232; 14 Mass. R. 260; 5 Greenl. 295; 1 East, 48; 6 Mass. R. 245; 4 Greenl. 84. Selling notes is no part of the partnership business. This was a private note of Harmon’s, and an indorsement on a note in the partnership name for the private debt of one is not binding. Matson on Part. 195; Ed. Raym. 176 ; 2 Caines, 246 ; 3 Pick. 495 ; Com. on Con. 488; 15 Mass. R. 75.</p> <p>The evidence rejected should have been admitted, as part of the res gesta. 16 Johns. R. 34; 1 Wend. 529 ; 4 Johns. R. 251; 2 Esp. JR. 526 ; 7 East, 212 ; 4 Mass. 11. 270; 7 Mass. It. 58; 5 Pick. 11; ibid. 413 ; 6 Pick. 259; 19 Johns. It. 154. Enough appears to show this to have been an usurious transaction. Com. on Con. 2d Amar. Ed. 99, and cases cited; 12 Johns. It. 102; Chitty on Con. 73 ; 2 Pick. 285; 3 Pick. 5.</p> <p>contended, that this was an ordinary partnership transaction, and binding on both the partners¡ The note belonged to the firm, as part of Harmon’s stock put in, or such was the inference the plaintiff would naturally draw from an inspection of the paper, being entirely ignorant of the manner in which the indorsement was made. Gow on Part. 54.</p> <p>But if the indorsement by one partner of the partnership name had been a fraud on the other, it would not affect the plaintiff’s rights, as he knew nothing of it. Gow, 52, and cases there cited; It ay ley on Bills, 52; 13 Petersdorff’s Ab. 110; Boardman v. Gore, 15 Mass. It. 331. The case finds no facts on which to ground the defence of usury. It was a purchase in the market of a person, whose name was not upon the note, and without any previous knowledge by the plaintiff of its existence. No argument can be required to show, that the evidence offered was rightly rejected.</p>

Exceptions from the Court of Common Pleas. The action was against Abbott and Brown, on a note of hand, and on an account for goods sold, amounting to the same sum as the note. The note was signed by Abbott, and Brown’s name also was signed by Abbott professing to act for him. Abbott was defaulted, and Brown defended.

Exceptions from tbe Court of -Common Pleas, Whitman C. J. presiding.

Bill in equity, by the 2d Unitarian Society in Portland, and Charles Mussey and Enoch Paine. Certain persons associated together, prior to March 2, 1835, to form a society for public worship, and were desirous of purchasing a house for that purpose already erected and for sale.

<p>Notes made payable at a particular bank, but not discounted by any bank, or left therein for collection, are not entitled to grace by the st. of 1824, c. 272.</p> <p>The words, we waive notice, written over the names of several indorsers of a note, arejprima facie evidence of a waiver of notice by such indorser; and the burden of proof is on him to shdw, that the words were placed there under such circumstances, that they are not binding upon him.</p> <p>The rule, which excludes parol testimony, offered to explain or vary that which is in writing, does not apply to proof of a fraudulent or unauthorized alteration of a written instrument, varying the liability of one or more of the contracting parties.</p> <p>The objection, that a party to a negotiable instrument cannot be admitted as a witness to prove it void, extends only to proof, that it was void when originally made.</p> <p>The indorser of a note, if without interest, is a competent witness to prove any fact, which does not show the note void in its inception.</p> <p>Mem. — Emery J. dissented from the opinion of the majority of the Court.</p> <p>The usual manner of publication has been to arrange the cases in the order in which the Courts are holden in the respective counties. By such arrangement, Buck v. Appleton in Cumberland precedes Greene v. Darling, in Washington, although the opinion in the latter case was delivered first, both cases having been continued for advisement.</p>

This was an action of dower, and was submitted to the opinion of the Court from an agreed statement of facts. From this it appeared, that David Stanwood, the husband of the demandant, was the son of William Stanwood, and they had both died before the demand of dower in this action. A deed of the premises in which dower is claimed was made from William to David, dated March 1, 1824, and acknowledged, March 6, 1824.

The action was assumpsit, for money paid, laid out and expended, and for labor done. Certain individuals, being owners of building lots lying on the public street in Bangor, agreed to appropriate a certain portion of the lots for the purpose of extending a mall, and also agreed to pay their respective proportions of the expense of constructing it.

This was a writ of entry on a mortgage, given by one Enoch Gammon to the demandant. The general issue was pleaded. The parties agreed upon a statement, from which tire following' facts appear.

<p>Assumpsit on a note of hand, dated Nov. 10, 1828, for $50,57 in six months and grace, payable to J. B. Osborne, and by him indorsed to the plaintiffs without recourse to him. The action was commenced August 30, 1836. The general issue was pleaded with a brief statement of the statute of limitations. The plaintiffs relied on a promise within six years, and to prove it, produced a deposition, in which the deponent stated, that he called on the defendant within the six years and requested him to pay the note, and that “ Mr. Mills did not deny the note. He said, he could not pay it. He said, he was poor and could not pay it.” Emery J., presiding at the trial, directed a nonsuit, which was to be set aside and a default entered, if the Court should be of opinion, that the plaintiffs had sufficient testimony to take the note out of the statute.</p> <p>cited Clementson v. Williams, 8 Crunch, 74 ; Perley v. Little, 3 Greenl. 97 ; Porter v. Hill, 4 Greenl. 41 ; 2 Stark. Em. 892 ; Bangs v. Hall, 2 Pick. 368.</p> <p>cited Porter v. Hill, 4 Greenl. 41 ; Heshon v. Eaton, 4 Greenl. 413 ; Perley v. Little, 3 Greenl. 97 ; Miller v. Lancaster, 4 Greenl. 159 ; 3 Bing. 329; 10 Pick. 232.</p>

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. Trespass for taking and carrying away a quantity of pine boards, alleged to be the property of the plaintiff. The defence was, tliat the property was attached by a deputy sheriff, whose servant the defendant was, as the property of one Haley, the owner.

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. Assumpsit for the board of one William Jones, with the usual money counts in the declaration.

This was an action of assumpsit, brought on a note- or memorandum, signed by the defendant, in the following words : “Westbrook, June 8, 1830. “ Received of Benjamin Quinby, administrator on the estate of Miles Winslow, fifty-one dollars, and twenty-five cents. . “Timothy Higgins, “Guardian to Winslow F. Higgins.” The case was submitted on the following agreed statement of facts.

<p>This was an action of trespass for taking three and one half tons of hay, of the alleged Value of thirty-five dollars. The defendant justified the taking as a constable of the town of Scarborough, by virtue of a writ of attachment, in favor of one Henry H. Googins, against the plaintiff", returnable to the Court of Common Pleas for the county of York, at the October Term, 1833, as the property of the plaintiff", which the plaintiff" contended he had no legal right to do, because the said hay was by law exempt from attachment.</p> <p>The parties agreed to the following statement of facts. At the time of the attachment aforesaid, the defendant attached about five tons of hay, being all which the plaintiff had in his possession. Afterwards, on the 14th day of September, 1833, one Joseph Foss, jr., the brother of the present plaintiff, sued out a writ of replevin, against the defendant, for the said five tons of hay and other property, returnable to the Gourt of Common Pleas for the county of Cumberland, on the first Tuesday of October, 1833. On the trial .of this action of replevin, it was proved, that to secure the said Joseph Foss, jr. for certain sums of money for which the said Thomas F). Foss was indebted to him, the said Thomas had bargained and agreed with the said Joseph to sell him the said five tons of hay, being all which he had ; and tlie said Thomas being called as a witness, on the trial of said action, testified to these facts, and that he considered tbe hay to be the property of his brother ; but it being proved, that: no delivery of tbe bay had been made by 'Thomas to Joseph, it was adjudged that the property of the same had not passed from the said Thomas, and that the attaching officer could hold the same as the property of the said Thomas, and judgment for a return of the said five tons of hay to the said Stewart was accordingly rendered against the said Joseph, which judgment the said Joseph has since fully satisfied.</p> <p>It is admitted, that the action of replevin aforesaid, was commenced with the knowledge of the said Thomas F. Foss, and that said Thomas had hired a small farm of about 20 acres, and tavern-house tliereon, in Scarborough, of one Fogg, and that the said Joseph was surety for the said Thomas on the lease, under which the said Thomas occupied at the time the attachment of the hay was made. The hay was not actually removed by the attaching officer, but was receipted for by one Andrews, and after it was replevied, it was left in the possession of the said Thomas, who used a part of it, by permission of the said Joseph. The said Thomas then kept a cow, but had no sheep.</p> <p>Tbe writ of return was issued upon the judgment for return, but was never ]iut into the hands of an officer, pursuant to an agreement made by the counsel of the respective parties, and consequently a demand for a return was never made upon the said Joseph, but said Joseph paid the adjudged value of the said hay, which was ten dollars per ton, together with the damages and costs awarded to the defendant in said suit of replevin. Judgment has never been rendered in the original action, Googins against the plaintiff.</p> <p>If, upon tire foregoing statement of facts, the plaintiff in this suit shall be entitled to recover, judgment is to be entered for such sum as the Court may award in damages and costs; otherwise the plaintiff is to become nonsuit and the defendant is to have judgment for his costs.</p> <p>cited the statute of 1821, c. 95, exempting from attachment, execution, and distress, one cow and ten sheep, and “ thirty hundred of hay for the use of said cow, and two tons for the use of said sheep.”</p> <p>Although the plaintiff had no sheep at the time the attachment was made, still he might purchase them the next day, and he must have hay to keep them, when he takes them home. The statute should be .construed liberally, and most beneficially for the purposes of the intended remedy. Gibson v. Jenney, 15 Mass. R. 205 ; Howard v. Williams, 2 Pick. 80 ; Richards v. Daggett, 4 Mass. R. 534. But the case shows, that when die hay was attached the plaintiff had one cow, and for that cause was entitled to retain one and an half tons of hay. The payment of the value of the hay to the officer by the person who took it out of his possession byjthe writ of replevin, makes him accountable to the plaintiff in the same manner as if the hay had remained in his hands. If he had not taken the property out of the plaintiff’s hands, he would have had it, and if he loses it, the loss will be occasioned by the acts of the defendant. The provisions of the statute will be evaded, if the action does not lie.</p> <p>said, that the plaintiff had been once paid for the hay by his brother, had made use of it himself, and now claims to have the value of it from the defendant. When the defendant attached the property, the plaintiff disclaimed all ownership in himself, another claimed it with the knowledge of the plaintiff, and the defendant contended with him successfully and held it. As the property was not removed from the possession of the plaintiff the action of trespass cannot be maintained. But the property was legally attached. The statute exempts certain articles from attachment, when necessary for the use of the debtor. But the sale of this hay to his brother is evidence, that it was not necessary for his own use. He must appropriate the property for the use intended by the statute, or he will not be protected by it. The ground of the decision, in Buckingham, v. Billings, 13 Mass. B. 82, was, that the property was not necessary for the use of the debtor.</p>

Exceptions from the Court of Common Pleas. This was a writ of entry on the dem'andant’s own seisin. On the trial the demandant produced in evidence a mortgage deed of the demanded premises, dated April-28, 1832, from the defendant to the demandant, and there rested his case. The defendant objected, that this evidence was insufficient to entitle the demandant to recover; but Whitman C. J., who presided at the trial, overruled the objection.

This was an action of slander ; the defendant demurred to the declaration and the plaintiff joined in demurrer.

Writ of entry demanding a tract of land in York. The demandant was an heir at law of John Nowell, sen., who died in 1810, intestate.

<p>Where a mortgage is assigned as security for the payment of a debt, and the assignee afterwards, with the knowledge of the assignor, enters to foreclose against both him and the mortgagor, the assignee has the right to waive and release to the mortgagor the entry to foreclose against him without the assent of the assignor; and such waiver is no fraud upon the assignor.</p>

This was an action of covenant broken on a bond given by the defendant to the plaintiff, dated June 23, 1830, reciting that the defendant had agreed to convey to the plaintiff two lots of land, and had received from the defendant his four promissory notes of the same date, each for the sum of $78, payable in one, two, three, and four years, with interest annually; and concluding as follows: “ Now if the said Embrson, on the payment of said notes according to the tenor…

The action was trespass quare clausum, for taking away the fencAof the plaintiff, in Buxton. The defendant, as surveyor of highways, justified the removal, because the fence was upon the public highway.

<p>The Revised Statute, c. 52, § 12, by which actions, brought by heirs to recover real estate sold by executors, administrators, and guardians on license, are limited to five years from the giving of the deed, applies alike to sales made prior and subsequent to the parsing of the act.</p> <p>That statute violates no provisions of the constitution.</p>

<p>Thu case was on a statement of facts, which sufficiently appear in the opinion of the Court.</p> <p>contended, that the facts show an admission of unsettled demands between the parties; and cited Daxter r. Penniman, 8 Mass. 11. 133; Fisk v. Needham, 11 Mass. It,. 45‘2; Lloyd v. Mound, 2 T. R. 769; Davis v. Smith, 4 Greenl. 337.</p> <p>commented on the language used, and contended, that the case came within the statute, according to the principles established by modern decisions.</p>

<p>The grantee in a deed of release., containing no covenants of warranty, is not thereby estopped from contesting the seisin of the grantor, and showing that he was himself before seised of the premises by an elder and better title.</p>

Seven causes of error were assigned by the counsel for the plaintiff in error, but as the judgment was reversed without considering several of the errors assigned, the facts and arguments in relation to them, will be omitted. Two of them were the following. 2.

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. The plaintiff read to the jury the copy of a record, from which it appeared, that the plaintiff was convicted before a Justice of the - Peace on a complaint made by the defendant against him, but that on an appeal to the Court of Common Pleas, he was acquitted.

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. Replevin for a yoke of oxen. It was proved, that about the first of June, 1835, Elias Junkins, the plaintiff’s intestate, then living, and who died the sixth of September, 1835, exchanged oxen with the defendant, and paid him ten dollars on the exchange.

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. This was a writ of entry, and the demandant claimed under a deed from Samuel Cowell to James Cowell, Sept. 30, 1828, and a levy by the, demandant upon the same, Nov. 12, 1830. The judgment was rendered on a note dated Oct. 3,1829. The tenant claimed under a deed from the same James Cowell, dated My 30, 1829, a.nd recorded the same day.

The case came before tlie Court oil a statement of facts, which sufficiently appear in the opinion of the Court. There was a brief argument by

The action was asmmpsit for money had and received, and paid, laid out and expended. The writ was dated Sept. 4, 1835» The defendant and Calvin Stone had agreed to purchase the timber on a certain township No 2, on Dead River, one quarter of the purchase money to be paid in cash in thirty days, and the residue by notes in three equal annual payments.

<p>Exceptions from the Court of Common Picas, Whitman C. J. presiding.</p> <p>This was a writ of entry to recover twenty-five acres of land in Jay. Both parties derived title under Asa Allen. The demand-ant claims by a deed describing the land thus, “ my homestead farm, situated in said Jay, being lot No. 13, in range 4, containing one hundred acres of land, be the same more or less, with the buildings thereon.” The premises demanded were a part of lot No 13, in range 3, and adjoined No. 13, in range 4. The demandant offered to prove, that at the time of the execution of that deed, that Asa Allen, the grantor, occupied," owned and improved, as his homestead farm, lot No. 13, in the 4th range, and also that part of lot No. 13, in the 3d range demanded in this action; that although the buildings were not on the demanded premises, his barn was within a few feet of the line of the lots; that no distinction was made between the lots in the improvement of them. He also offered to prove, that when he afterwards purchased the tille of the grantee, at public auction, both parties to that deed were present, and that no notice was given, that the premises demanded were not a part of the premises described in the deed from Asa Allen. All this evidence was rejected by the Judge, who ruled, that the evidence produced and offered was insufficient to maintain the action, and directed a nonsuit. The defendant excepted.</p> <p>argued, that the first part of the deed, “ my homestead farm in Jay,” conveyed all the homestead farm, and that the words following, being inconsistent with them, should be rejected. The number of the lot is descriptive of the farm, and not the farm descriptive of the lot. The testimony offered was to show the extent of the homestead farm, at the time of the conveyance, and is clearly admissible. Worthington v. Dylyer, 4 Mass. R. 205 ; Cate v. Thayer, 3 Gi'eenl. 71 ; Willard v. Moulton, 4 Greenl. 14 ; Keith v. Reynolds, 3 Greenl. 393; Drink-water v. Sawyer, 7 Greenl. 366; Rose v. Dandy, 2 Greenl. 322; Allen v. Richards, 5 Rick. 512; Storer v. Freeman, 6 Mass. R. 435; Deland v. Stone, 10 Mass. R. 459 ; Fowle v. Bigelow, ib. 379.</p> <p>argued, that'the intent of the parties to the deed must govern, when it can be ascertained from the description in the deed. The word homestead, has no other meaning, than merely where he lived, where his house was, and the extent was ascertained by the description. The word means no more, than my home lot. But talcing the whole description together, no doubt can remain. There is no conflict in the different |)arts of the description, and in that respect it is unlike the cases cited for the demandant. Conflicting particulars in the description in a deed, should be reconciled, if possible. Allen v. Littlefield, 7 Greenl. 220 ; Lyman v. Clark, 9 Mass. li. 238; Jackson v. Myers, 3 Johns. It. 388; Child v. Fickett, 4 Greenl. 471; 4 Kent’s Com. 455.</p>

Replevin for sixteen bushels of clover seed. The defendant, as a deputy sheriff, justified the taking by virtue of a writ against one Moody E. Abbott, whose property he alleged the clover seed to be. The plaintiff carried on the farm of her late husband by consent of all the heirs, for her own benefit, and the grass seed was raised upon the farm. Moody E. Abbott was the son of the plaintiff, and lived with her as her hired man.

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. At the first term the defendant moved, that the writ be abated for want of being duly indorsed. The plaintiff’s counsel, being specially authorized in writing for that purpose, wrote the name of the plaintiff, “ John Rowe,” upon the back of the writ when it was made. The Judge decided, that the writ was not indorsed agreeably to the statute, and adjudged, that the same should be abated.

Exceptions from tbe Court of Common Pleas, Whitman C. J. presiding. Assumpsit on a promissory note made by the defendant and payable to the plaintiff in thirty days. The date was April 19, 1836, and the writ was dated May 19, 1836. At the trial, the defendant objected, that the action was prematurely brought, having been commenced before the expiration of the thirty days.

<p>The statute bf 1829, ch. 444, regulating appeals from the Court of Common Pleas, left the costs on judgments on reports of referees, in appealed cases, subject to the provisions of the statute of 1821, ch. 59, § 30.</p> <p>By the latter statute full costs are taxed upon the reports of referees, where the plaintiff is the prevailing party, however small the amount recovered may be, unless the referees otherwise direct.</p>

Trover for 38 tons of screwed hay. The plaintiff introduced evidence tending to prove by parol a sale of the hay, on the 9th of April, 1835; and a material question arose/ whether there was proof of a delivery. It was proved, that the' hay was previously all screwed, and weighed and labelled, and the weight marked on each bundle. The hay was all in one barn, and the sale, if such it was, embraced all the hay.

Exceptions from the Court of Common Pleas, Whitman G. J. presiding. Assumpsit for 15 cords of wood, and the expense of piling and •surveying it. The plaintiff read in evidence a paper signed by the defendant. “ I hereby agree to take of J. G. Coombs, a gondola of wood surveyed on his wharf, at 2-3 my expense, at $3,25 per cord.” Also an order signed by the defendant. “Mr. J. G. Coombs.

Exceptions from the Court of Common PJoas, Perham J. presiding. This was an action on a mortgage, made by Joseph G. Torrey to Azuhah Torrey, the plaintiff’s intestate. After the evidence was closed, the presiding Judge directed a nonsuit, to which the plaintiff excepted. The facts in the case sufficiently appear in the opinion of the Court. said that Joseph Torrey and his wife took the estate by entirety and not by moieties, and the wife, as survivor, took the whole. 5 Mass.

Exceptions from the Court'of Common Pleas, Smith J. presiding. The only question raised in the case, was, whether the widow was entitled to dower in land situated as this was. The premises in which dower was claimed, containing about fifteen acres, and part of a larger tract, was wholly woodland, and on which no improvements have ever been made.

Exceptions from the Court of Common Pleas, Smith J. presiding. Trespass quare clausum. The plaintiffs claimed the locus in quo by virtue of tlie levy of an execution thereon in their favor against the defendant, June 3, 1830, as his property. Two objections were made to this levy. 1. That it does not appear, that Eusebius Fales, one of the appraisers, was sworn. 2.

<p>An action of replevin cannot be maintained by the owner of goods against an officer, who had returned an attachment thereof on a writ against a third person, but had not taken them into his possession, and where the plaintiff in replevin had the actual possession at the time of the attachment, and re-' tained it until after the commencement of his suit; although the plaintiff had given a receipt to the officer, promising to return the goods to him on demand, but containing no admission that the property was not in himself.</p> <p>Where the owner of goods, which wore returned by an officer as attached upon a writ against a third person, retains them in his own possession, and gives to the officer a receipt, promising to deliver the goods to him on demand, but containing no admission that they were the property of such third person ; proof that the goods were his property furnishes a valid defence to the owner, in an action against him on the receipt.</p>

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

Exceptions from the Court of Common Pleas, Smith J. presiding. Replevin for cattle. The general issue was pleaded, and a brief statement filed, alleging that the defendant took the cattle by command of D. F. Harding, doing damage in his field, between which and the plaintiff’s pasture there was no legal and sufficient fence, and put them in the pound for that cause.

Call was indicted and tried in the Court of Common Picas for an offence. During the trial several objections were made by the counsel of Call, presenting questions of law, which were overruled by Smith J. presiding at tbe trial. Tbe jury returned a verdict of guilty. Tbe counsel of Call wished to file exceptions to the ruling and opinions of tbe Judge, and also to be heard on a motion for a new trial, because of the alleged misconduct of some of the jurors.

Complaint for flowing lands. The complaint alleges merely, that the complainant was seised of a tract of meadow land in China, in this county, which was described, adjoining on a certain stream of water, also described, and that the defendants have erected upon said stream of water a certain mill-dam, and for many years, to wit, ten, have kept up the same dam, whereby the land of the complainant has been overflowed with water for the space of four years, and thereby rendered…

<p>Assumpsit on a receipt. Tlie plaintiff, as a deputy sheriff, had attached divers articles, as the property of one Leadbetter, and took tlie receipt therefor, signed by the defendant, promising to deliver tlie same to the plaintiff on demand. Judgment was rendered in the suit against Leadbetter, June term of the Common Pleas, 1834, for a sum greater than the value of the property attached. The plaintiff made a demand of the property of the defendant, October 10, 1833, and immediately commenced this suit. Within thirty days after judgment an execution was taken out upon the judgment, and delivered to a coroner of the county, as the office of sheriff was then vacant. The coroner had notice of the attachment, and though not having tlie receipt, within thirty days demanded the property of the defendant, but made no demand therefor of tlie plaintiff within the thirty days. When the attachment was made and the receipt given, the property was permitted by the receipter to go back into tlie possession of the debtor, and at the time of the judgment part of it had been consumed by the debtor, part of it remained, and parí of it had been destroyed without any fault of the debtor.</p> <p>It was contended by the counsel for the defendant, that he was answerable to the plaintiff only so far, as he was liable to tlie attaching creditor, and that no demand having been made upon the plaintiff, his liability to the creditor had ceased. Weston C. J., presiding at the trial, overruled the objection, that the damages might be assessed. The verdict for the plaintiff was to be amended, or set aside, if the want of such demand is' fatal to the action, and a nonsuit entered.</p> <p>As no demand was made upon the plaintiff within the thirty-days, he is not liable to the creditor. 9 Mass. R. 258 ; 11 Mass. R. 211; ib. 317 ; 14 Mass. R. 196; 16 Mass. R. 465 ; Story on Bailments, <§> 132.</p> <p>As the property was left in the hands of the debtor, the owner of it, the officer is not liable over to him. 11 Mass. R. 219; 16 Mass. R. 5; 14 Mass. R, 196 ; 8 Greenl. 130; 12 Pick. 202; 9 Mass. R. 360.</p> <p>But if the defendant could have been rendered liable to the plaintiff by a proper demand on him by a coroner, yet this demand was unavailing, because the coroner did not have the receipt to deliver up, if the property was delivered by the receipter. 7 Mass. R. 483.</p> <p>But if the action can be maintained, the damages should be but nominal. 8 Greenl. 122; 12 Mass. R. 163; 1 Fairf. 20 ; ib. 397.</p> <p>contended, that no demand for the property within thirty days after judgment, by the coroner upon the plaintiff, was necessary. The plaintiff had already made his demand, and had brought this suit before judgment was rendered. The attachment was not released by any act of the creditor, for he put his execution into the hands of an officer within thirty days after judgment. Nor -by any omission of the coroner, for he made a demand of the property of the defendant, who was bound to produce it, either to him or to the plaintiff. No demand is necessary, when the property cannot be produced. The demand -would he wholly useless, whether made upon the receipter, or upon the attaching officer, and therefore the law does not require it. Jewett v. Torrey, 11 Mass. R. 219; Whittier v. Smith, ib. 211; White v. Bagley, 7 Pick. 288. The plaintiff, having attached the property, is accountable for it; and the defendant, having failed to comply with his written promise to deliver the property to the plaintiff, is liable to him.</p> <p>The amount to be recovered, should be the value of the property at the time judgment was rendered. Robinson v. Mansfield, 13 Tick. 139; Johns v. Church, 12 Pick. 557; Wakefield v. Stedman, ib. 562; Chapman v. Searle, 3 Pick. 38. As there was a good cause of action, when the suit was commenced, and the plaintiff has done nothing to impair his rights, we are entitled to at least nominal damages.</p>

Lucy Shaw demanded dower in a tract of land of which her husband was seised during the coverture, and which he conveyed to one Hibbard, under whom the tenant claims, Nov. 16, 1816. She did not join in this conveyance; but Jan. 9, 1817, she gave a deed of release in which her husband did not join, “ in consideration of one hundred and fifty dollars paid her husband,” to said Hibbard, of her claim to dower in the same premises.

Trespass for certain chattels taken by Randall Fish, a deputy of the testator, late sheriff of the county. Fish took the chattels on an execution against one Cowan. The .title set up by the plaintiffs was an instrument in writing from Cowan, whereby he pledged to them the property in controversy, to secure to them certain claims against him, and to indemnify them against certain liabilities, which they had assumed on his account.

The action, was trespass quare clausum, for cutting down and carrying away a quantity of wood standing thereon ; and came before the Court on an agreed statement of facts. On December 24, 1832, the plaintiff acquired a title by deed to the premises, where the trees were cut, and has occupied and improved the same ever since. In January, 1833, the plaintiff, by an absolute deed, conveyed the same premises to James Bolton.

Exceptions from the Court of Common Pleas, Smith J. presiding. This was an action of trespass for breaking and entering the plaintiff’s close in llallowell. The action was originally brought before the Municipal Court of Ilalloweil, having the same jurisdiction in civil actions, as a Justice of the Peace. The general issue only, not guilty, was pleaded. The Municipal Court rendered judgment in favor of the plaintiffs, from which judgment the defendants appealed.

Exceptions from the Court of Common Pleas, Smith J. presiding. The action was trover for a trunk, containing goods, described particularly in the declaration. The testimony of Young and Sawin, referred to in the fourth exception, was in substance this.

Exceptions from the Court of Common Pleas, Smith J. presiding. Assumpsit by the plaintiff, as indorsee, against the defendant, as promissor of a note of hand given to one Russ, or order, and by him indorsed, dated April 16, 1833, for $833,33, payable in Jan. 1835, with interest after. In September, 1834, the note was indorsed and placed in the hands of Bachelder, a deputy sheriff, as security for a demand of about $500, in his hands against Russ.

This was a bill in equity, alleging that the plaintiffs are judgment creditors of Elwell, one of the defendants, and that Elwell was possessed of sufficient property for the payment of his debts, but had fraudulently and collusively conveyed the same to Hodgdon, the other defendant, to defraud the plaintiffs, and his other creditors, and that Hodgdon had .received the conveyances of the property with the same view, and had left it in the possession, and under the control of…

This was a writ of error, brought to reverse a judgment of the Court of Common Pleas in an action commenced originally by the plaintiff in error, before a Justice of the Peace. Atibe trial in tli« Court of Common Pleas, the plaintiff offered to prove, that, although the note was indorsed by Frye in blank, he promised at that time to be responsible, at all events, for its payment.

Assumpsit for the use and occupation of a store in Hallowell, from July 15 to Dec. 4, 1834. The plaintiffs had leased the store to F. C. Krantz for one year from the fifteenth of April, 1834, at a certain rent, payable quarterly. The defendants entered into the occupation of the store under Krantz at the commencement of his term, and continued it until the close of the term for which rent is claimed.

Assumpsit for labor and materials on the defendant’s dam across Bridge’s brook. The parties had made a written contract in relation to the building of the dam, and while the work was proceeding, they differed in their construction of the contract, and agreed, that the work should be completed in the manner contended for by the defendant, and that if the contract did not require it, he would pay for all the additional work.

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. This case was referred to D. Williams, Esq. to be decided upon legal principles.

This was an action of debt on a bond, dated Jan. 19, 1835, made by Sager, as principal, and the other defendants, as bis sureties, to the plaintiffs.

Assumpsit on a note of hand purporting to have been signed by Isaac Thompson, Samuel Homans and Charles Keene. Thompson did not answer. Homans and Keene denied, that the signature of their names to the note was in their handwriting, or made by their authority. To prove and to disprove the genuineness of the signatures, testimony was introduced on both sides. A number of specimens of the true signatures of each were introduced and submitted to the jury.