Volume 15 — Maine Reports

The original action, of which ibis is a review, was by Samuel Holbrook against Joseph Holbrook and Warren Preston, on a written contract, which will be found in 2 Fairfield, 361, as will also a description of the bond referred to, with other facts then in the case. On the present trial, some additional facts appeared.

The action was assumpsit. In the first count it was alleged, that in consideration that the plaintiff conveyed to the defendant, April 18, 1834, certain real estate in the County of Penobscot, valued by the parties at $5648, the defendant conveyed to him certain real estate in the ■ County of Somerset, valued by them at $5200, and at the same time agreed with the plaintiff and one A. H. Norton, in consideration of the balance of $448, remaining unpaid in the exchange, to…

<p>Assumpsit to recover tbe price of a vessel, alleged to have been built and delivered to the defendants, founded on two agreements in writing, not under seal, tbe substance of which appears in tbe opinion of the Court. The defendants then read a bill of sale from tbe plaintiff to Smith & Parsons, two of the three defendants, under seal, made after tbe agreements, in which he transferred to them two thirds of the vessel, and therein acknowledged the receipt of payment in full therefor. The plaintiff then offered to prove, that the bill of sale was intended only as a transfer of so much of the vessel, and not as evidence of payment; that he did not receive payment in full; that the accounts between the parties in regard to the building of the vessel were still unadjusted; and that subsequently to the bill of sale, Smith &f Parsons admitted their indebtedness to the plaintiff for building the vessel. Weston C. J. presiding at the trial, refused to admit the evidence, holding the plaintiff estopped by his bill of sale. The counsel of the plaintiff then contended, that the bill of sale could be regarded as evidence only of the payment of two thirds of the vessel, and that he ought to recover the balance. The Chief Justice ruled, that although the contract was originally joint, it was severed by the bill of sale and acknowledgment of payment, and that the action could not be maintained against the three defendants. By agreement the plaintiff became nonsuit. If in the opinion of the Court, the evidence offered was admissible, or if the action could be maintained against all the defendants, a new trial was to be ordered.</p> <p>argued in support of the points made at the trial; and, on the' question of estoppel, referred to the argument for the plaintiff, in Norton v. Preston, ante p. 14.</p> <p>argued in support of the ruling at the trial, citing on the first point the argument for the defendants in Norton v. Preston; and on the second point, Holland v. Weld, 4 Oreenl. 255 ; and Baker v. Jewell, 6 Mass. R. 460.</p>

The action was replevin. The defendant as collector of taxes took the goods and chattels replevied as the property of John Ware for the payment of taxes, and the jury found, that the chattels were the property of said Ware, and not the property of the plaintiff. Judgment was rendered for a return and restitution.

The inhabitants of New-Vineyard petitioned for a certiorari to the County Commissioners for the purpose of having their proceedings in establishing a road, wholly within the limits of that town, quaslied.

Assumpsit on a promissory note. The defence was a want or failure of consideration, and the defendants proved, that the¿ note declared On, and another, both amounting to $500, were given in consideration of a contract of which -a copy follows. “ Whereas Daniel Danker has procured from the General Government the right of transporting the mail on Post Route, No. 29, for the sum of $2475 per annum, and whereas the said Bunker has agreed to transfer the contract to Herbert…

The plaintiff claimed damages for the loss of a horse, alleged to have been killed by reason of a defect in a public highway within the town of Wellington, on the second of September, 1835. The defendants insisted, that the loss was occasioned by the imprudence of the plaintiff in driving very rapidly an unbroken and unmanageable horse in the night time.

The action was assumpsit, for services performed by the plaintiff as collector of taxes in Neiu-Portland. At the March meeting in 1834, the plaintiff offered to serve as collector for one and an half per cent., he to be the sole constable. The town chose the plaintiff constable and chose no other.

<p>A collector of taxes, who has given a bond to the town “ to pay over the money collected to the treasurer,” is bound to pay over money voluntarily paid to him by the .inhabitants, although the tax bills committed to him are imperfect and illegal, and although he has received no collector’s warrant.</p> <p>If a majority of the assessors sign the tax lists in such manner, as clearly to show their intention to give them their official sanction, it is immaterial on what part of the lists the signatures appear.</p>

Exceptions from the Court of Common Pleas, Smith J. presiding. Held: that bail is excused by the act of God, disabling the principal from be ing surrendered, although the decisions have not been in accordance with those of New-Yorlc in regard to the act of the law. The same principle should apply to this case. He cited Champion v.. Noyes, 2 Mass. JR. 481; Parker v. Chandler, 8 Mass.

Exceptions from the Court of Common Pleas, Smith J. pre-. siding. The action was case, for a false return upon the citation to the plaintiff to disclose the actual state of his business affairs, pursuant to the statute of 1831, c. 520, for the abolition of imprisonment of honest debtors, served by the defendant.

<p>Where a right to cut and take a certain quantity of standing timber from a tract of land is reserved, or given, in a written contract, and no time when is fixed by the parties, the law prescribes a reasonable time within which it must be done.</p> <p>When written instruments have reference to a former contract, and contain recitals of its subject matter, and it appears, that there is a variance between such instrumente, and between them and the contract; the recitals arfe to be explained and corrected by the contract to which reference is made.</p> <p>If a contract in writing expressly refer to a written instrument, the law will imply, that a party to the contract has notice of the contents of such instrttment.</p>

Assumpsit for money bad and received, brought to recover back tbe consideration money paid by the plaintiff to the defendant for the assignment of a bond of a lot of land in Bangor. The defendant held by assignment a bond for the conveyance of a lot, described in the bond, on payment of a specified sum.

The action was replevin for a pair of oxen. The writ bore date October 10,1835, and the oxen were replevied the same day. To prove the property in himself the plaintiff produced and proved a paper in these words. “ Know all men by these presents, that I, Wyman C. Hardy, do agree with Jonathan Pickard to bill a sail a yoke of oxen for to secure a payment of thirty dollars, to be paid the twenty-fifth of October.

Debt on a judgment recovered in tbe State of Connecticut, •which at the time of the commencement of the suit was in full force, and not revoked or annulled. Subsequently proceedings in tbe Supreme Court in Connecticut were instituted, which resulted in a reversal of the judgment, and the record of the reversal was produced at the trial, and thereupon the plaintiff became non-suit.

On the trial the plaintiff offered to read a deposition, to the admission of which the defendant objected, because it did not appear by the certificate of the Justice, that due notice had been given to the adverse party. Shepley J. presiding, overruled the objections and permitted the deposition to be read, to which the defendant excepted.

<p>Where an oflicer arrests a debtor on a writ, pursuant to the provisions of the st. of 1831, c. 520, and takes him before two Justices of the peace, and of the quorum, it is the duty of such officer to detain the debtor under arrest until he shall be discharged by the Justices, or be again committed to his custody by their mittimus.</p> <p>It is the duty of the officer having the debtor in his keeping under the mitti-mus, to release him on his giving to such officer a sufficient bond, conformable to the provisions of the statute, running to the creditor.</p> <p>The officer’s return of these proceedings on the writ is legal evidence of the facts, in a suit upon the bond.</p> <p>Where there has been a breach of the condition of such bond, the damage actually sustained is the proper and equitable measure of the claim of the creditor.</p>

Exceptions from the Court of Common Pleas. The action was brought for supplies furnished to one Rogéis, alleged to have fallen into distress in Exeter and in need of immediate relief, and to have had his settlement at the time in Brighton. The question was, whether the pauper had gained a settlement in Brighton by dwelling and having his home there on the twenty-first of March, 1821.

ExceptioNS from the Court of Common Pleas. This was an action of assumpsit to recover damages of the defendants which the plaintiff alleged he had sustained by reason of their refusal to assign to him one sixth part of their interest in a bond made by the trustees of the ministerial and school lands in the town of Edinburgh, to one Nathan Winslow, and by Wins-low assigned to the defendants.

Exceptions from the Court of Common Pleas. Scire facias against the defendant, as indorser of a writ-in favor of one George M. Nichols against the present plaintiff. The brief statement of tile defence was, that there was not any such execution, as was described in the declaration, and that no such ^execution was placed in the hands of an officer to serve according to law.

Exceptions from the Court of Common Pleas. Assumpsit on a draft, accepted by Cram, Button & Co. of Bangor, and drawn and indorsed by the defendant, residing at Orono, dated Oct. 15, 1835, and payable at the Kenduskeag Bank at Bangor, in sixty days from date. The writ was dated Dec. 17, 1835, handed to an officer at 6 o’clock, P. M., and served the same evening.

Exceptions from the Court of Common Pleas. Assumpsit against the defendant as indorser of a bill of exchange drawn in his favor by S. A. Gilman on Charles Gilman, accepted by him and indorsed by the defendant, dated June 30, 1836, payable in thirty days at the Suffolk bank in Boston. On the trial before Peuham J. the plaintiff produced the bill.

<p>This is a real action wherein the plaintiff demands a piece of land in Bangor, which is described in the writ. The parties agree to submit the action to the decision of the court upon the following state of facts. The writ was dated the 18th of Oct. 1835, and counts on the seizin of Moses Broiun, her grandfather, within twenty-five years. It is agreed that the plaintiff is the sole heir at law of said Broten; and that on the 17th of Nov. 1807, one Samuel Greenleaf owned the land demanded, with other land adjacent, and that on that day be conveyed by deed a part of the land demanded, to said Moses Brown. That on the first day oi May, 1805, Stephen Higginson, Jr. and Henry Higginson, having a demand against said Greenleaf, sued out a writ against him and attached the demanded premises. Said suit was brought for the Court of Common Pleas, August term, 1805, Hancock county; was there entered and afterwards demurred to the Supreme Judicial Court, and there entered and judgment rendered on the third Tuesday of June, 1807, in favor of the plaintiffs, for 1310,35. Execution issued on the twenty-fourth of June. On the 2nd of July, said execution was levied on the premises demanded, by one John Batch, a deputy-sheriff. The said John Batch not having returned, by whom the appraisers named in said return, were appointed, the parties submit the question, whether the said John Batch shall, on motion of the defendants have leave to amend his said return, by inserting the fact, by whom said appraisers were appointed. The tenants also offer the depositions of H. G. Batch and Joseph Treat, two of the appraisers named in said return, stating by whom they were severally appointed, which if admissible, with or without said amendment being made, are to be considered as a part of the case. Also the deposition of said John Batch, stating by whom said appraisers were chosen, which if legally admissible, is also to be made part of the case. But if otherwise, they are to make no part of the case.</p> <p>On the 23d of December, 1822, Moses Brown commenced an action against said Greenleaf, describing him as of Cincinnati, in the State of Ohio, returnable at the Court of Common Pleas for the county of Hancock, to be holden on the fourth Tuesday of March, 1823 ; on said writ, the officer returned an attachment of the premises demanded, as supposed to be the property of the said Greenleaf. Said action was entered at March term, and at the same term the court made the following order, as appears on the docket under said action ; “ plaintiff to give notice to the defendant, to be communicated by the clerk, of the nature of the action sixty days previous to the next term.” There is then the following entry, “ notice issued May 8, 1823, and put into the post-office May 11, 1823, W. D. continued.” The next term of the Common Pleas was holden on the 2nd Tuesday of July, at which term judgment was rendered on default of the defendant, he not having ever appeared, for $338,21 damage, and $14,79 costs. The declaration in the said suit described a note as made by said Green-leaf to said Brown, dated April 5, 1811, which was not witnessed.</p> <p>Said Greenleaf had occupied the land until he removed from Bangor, his former residence, with his family to Cincinnati, in the State of Ohio, in the year 1813, and has never returned since. Execution issued on said judgment on the 5th of August, 1823, and on the 9th of August was extended on the premises demanded; which was recorded on same day in the registry of deeds for the county of Penobscot. This levy was in legal form. It is agreed that either party may take all legal exceptions to the evidence on the facts affecting the title of the other party. And it is further agreed, that the court may make all such legal inferences from the facts stated, as a jury might make, and decide upon the validity and effect of said judgment and previous proceeding so far, and in the same manner, as a Judge of this court might do in this cause were the same on trial before a jury, and said judgment and proceedings were offered in evidence and objected to by the parties.</p> <p>It is agreed that the tenants are the legal representatives of the said Stephen Higgimon, Jr. and Henry Higginson. And if upon the whole case, the court shall be of opinion, that said action is maintainable, either for the whole or any part of the premises demanded, said defendants are to be defaulted, and judgment rendered accordingly ; otherwise the plaintiff is to become nonsuit, with costs for the prevailing party.</p> <p>Several papers were referred to in the statement of facts, but which are not found necessary to a sufficient understanding of the case.</p> <p>contending: —</p> <p>1. That the levy under which the tenants claimed was void, because the return does not show by whom the appraisers were appointed. Williams v. Amory, 14 Mass. R. 20 ; Eddy v. Knapp, 2 Mass. R. 154; Whitman v. Tyler, 8 Mass. R. 284; Means v. Osgood, 7 Greenl. 146.</p> <p>2. Nor can an amendment be permitted, because it would disturb the rights of third persons already acquired. Thacker v. Miller, 13 Mass. R. 270; Hall v. Williams, 8 Mass. R. 240 : Means v. Osgood, before cited; Libby v. Copp, 3 N. H. Rep. 45 ; Howard v. Turner, 6 Greenl. 106; Freeman v. Paul, 3 Greenl. 260. Even where in such case the amendment has been allowed, it does not alter the rights of the parties. Emerson v. Upton, 9 Pick. 167 ; Putnam v. Hall, 3 Pick. 445. Making such amendment dissolves an attachment. Willis v. Crooker, 1 Pick. 203.</p> <p>3. Our deed conveyed a good title to that part of the premises, because the grantor was in possession, and the void levy of the tenants gave them no seizin.</p> <p>4. Our judgment was a good and valid one. The defendant was not obliged to plead the statute of limitations, and if he had done so, there was evidence of a new promise. At all events, the judgment is good until reversed.</p> <p>1. The levy of the tenants is good. At least, after the lapse of thirty years, it is to be presumed good, and that all the provisions of the statute have been complied with. Williams v. Amory, cited for the demandants.</p> <p>2. The amendment ought to be permitted. The reason urged against it is, that rights of the demandant have intervened. But she has acquired no rights by the levy of her ancestor. A levy under a void judgment can give no title. The judgment should be regarded as a nullity, where the proceedings show, that the court had no jurisdiction, and a reversal is unnecessary. ' St. of 1821, c. 59, § 1; Brackett v. Mountfort, 2 Fairf. 117; Chase v. Hathaway, 14 Mass. R. 222 ; Bissell v. Briggs, 9 Mass. R. 462; Hall v. Willia?ns, 6 Pick. 462; Hall v. Williams, 1 Fairf. 278 ; Laivrence v. Smith, 5 Blass. R. 362; Bl’Rae v. Blattoon, 13 Pick. 59; Adams v. Rowe, 2 Fairf. 89. As the judgment was void, as the case shows, there are no rights of third persons to prevent the amendment, which is mere matter of form, and we fur-nisli the strongest proof, that all the statute requirements were in fact performed in relation to tbe choice of appraisers, and the amendment should be allowed.</p> <p>3. But the demandant, even if the judgment is good, and our levy is not, ought not to recover the land she claims by deed, because at the time it was made, we had the seizin in fact, and nothing passed by it.</p>

The declaration in case described the plaintiff, as a late deputy sheriff, and alleged, that the defendants at Bangor, on May 30, 1836, by their memorandum in writing of that date, in consideration that they had received of the plaintiff certain goods, wares and merchandize of the value of ^400, the same having been attached by the plaintiff as the property of said Cram, on a writ in favor of N. O. Fillsbury, and for the further consideration of one dollar paid the…

Exceptions from the Court of Common Pleas. Assumpsit by Otis Norcross and Eliphalet Jones, alleged to be copartners under the name of Otis Norcross & Co. The general issue was pleaded. The only evidence to support the declaration was a note signed by the defendants, of which the following is a copy. “$¡301,06. Bangor, August 3, 1835.

<p>This Court has- equity jurisdiction, whore the hill charges a fraudulent conveyance of land, made to defeat and delay creditors.</p> <p>In bills in equity, seeking relief, if any part of the relief sought he of an equitable nature, the Court will retain the bill for complete relief.</p>

<p>Where the trustee has the actual possession of personal property conveyed to him by the principal, or the right to the actual possession and the power to take immediate possession of it, he must be regarded as having it entrusted to him within the meaning of the trustee statute, and must be charged.</p>

This was an action on the case brought in the county of Penob-scot by the plaintiff, an inhabitant of Brewer in that county, against the inhabitants of Frankfort in the county of Waldo, for damages alleged to have been sustained by reason of want of repair and defects in and obstructions placed upon a bridge, part of a highway within the town of Frankfort.

ExceptioNs from the Court of Common Pleas, Peruam J. presiding. The nature of the indictment will be found in the opinion of this Court.

Exceptions from the Court of Common Pleas, Pepu-iam J. presiding. This was an indictment against the respondents for a conspiracy to charge the wife of one of them with the crime of adultery. The facts in the case, and the ruling of the Judge at the trial, appear in the opinion of the Court. No copy of the motion to quash the indictment is found with the exceptions, but it was understood on the argument to be founded on the allegations. 1.

<p>In equity as well as in law, the rule is well established, that parol evidence is not to be received to contradict, add to, or alter, a written contract.</p> <p>But. parol evidence tending to prove matters extrinsic to the terms of a written contract, for the purpose of applying it 1o the subject to which it relates, does not come within this rule.</p> <p>An ambiguity arising from too great generality of description may be removed by parol evidence, which applies it to a single point.</p>

The action was submitted for the opinion of the Court upon an agreed statement of facts. The action was by the plaintiffs as en-dorsees of a note given by the defendant to James Howard, dated February 23, 1832; payable to him or order, in eight months, for $ 100.

ExceptioNS from the Court of Common Pleas, Pebham J. presiding. The action was on a note of hand, dated August 1, 1833, given by Joseph Kimball to the plaintiff, against the defendant, as the executor of Joseph. The defendant in his pleading denied that he was executor. Joseph Kimball died in November, 1834.

Exceptions from the Court of Common Pleas, Perham J. presiding. Assumpsit for money had and received. To support his action, the plaintiff offered to prove by witnesses and by the deeds, that February 19, 1836, he made a deed of certain land to the defendant, for the consideration of $550.

<p>In an indictment on the Statute prohibiting the sale of lottery tickets, giving the accused the addition of lottery vender, when his proper addition was broker,furnishes good cause for abating the indictment.</p>

This was a bill in equity, and was heard on bill, answer and proof. The case sufficiently appears in the opinion of the Court. Lowell cited Dwight v. Pomeroy, 17 Mass. R. 303 ; Black v. Black, 4 Pick. 234; Pratt v. Bacon, 10 Pick. 123; Brooks v. Wheelock, 11 Pick. 439; Campbell v. Sheldon, 13 Pick. 8; Stearns v. Hubbard, 8 Greenl. 320; Given v. Simpson, 5 Greenl. 303 ; Elder v. Elder, 1 Fairf. 80; 1 Story’s Eq. 89.

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

ExceptioNS from the Court of Common Pleas, Peiuiam J„ presiding. The action was assumpsit, on an account, charging the amount paid N. K. Seaton on the defendant’s order. The declaration also contained the money counts. On the trial the plaintiffs offered in evidence a paper, of which the following is a copy. “ Messrs. Kendall & Kingsbury, Gents. — Please pay N. K Seaton four hundred fifty-five dollars, thirty-six cents, and charge the same to my account. Calais, June 7, 1830.

ExceptioNs from the Court of Common Pleas, Perham J. presiding. This was an action of debt on a bond. Several questions were made in the exceptions, and argued by counsel, which have become unimportant, as the decision rested on but one point, which was conclusive of the whole case. The facts bearing upon it are found in the opinion of the Court. The verdict was for the plaintiff, and exceptions were filed by the defendants.

Assumpsit against the defendant as acceptor of a ibill of exchange of which the following is a copy. “ $2010. Calais, 28 November, 1835. Four months after date pay to the order of Elijah D. Green two thousand and ten dollars, value received, which charge to account of, yours, &c. Timothy Darling.

This action, commenced April 1, 1836, was against the defendant as drawer of die same bill described in Green v. Jackson, ante, p. 136. In addition to the facts appearing in that case, the plaintiff offered evidence tending to show, that on the eighth day of April, 1836, he gave notice to tbe defendant of the presentment of the bill to the acceptor, and non-payment by him.

This was an action against Barling, as the drawer of two bills of exchange, drawn by him at Calais, November 28, 1835, on Jeremiah Jackson, of the city of New- York, and by him accepted, payable in three months from date, to the order of the plaintiff. The same objections to proof of demand and notice were made, as in Green v. Jackson, ante, p. 136. The note was presented to the acceptor, in the city of New-York, and payment refused by him, on the third day of March, 1836.

The declaration contained the money counts, and two counts alleging, that the defendant received of the plaintiff one hundred and thirty dollars, which he undertook to pay to the treasurer of the State of Maine for a debt which the plaintiff then owed to the State, and to take up and deliver to the plaintiff his notes, and that the defendant neglected so to do, whereby the plaintiff was put to great additional expense, trouble and cost.

Replevin for six hundred bushels of salt, which the defendant in his brief statement alleged to be his property. The salt had been placed in a store on the island of Campo Bello in the Province of New-Brunswick, but for what purpose it was placed there did not appear. The facts necessary for a proper understanding of the case, will be found in the opinion of the Court. The admission of the title deed of the plaintiff was objected to, but admitted by the Judge.

ExceptioNs from the óourt of Common Pleas, Peeham J. presiding. This was a writ of entry brought to recover a tract of land in Calais, and was tried on the general issue. The demandant claimed a tract of land, oiitíe tbe property of the defendant, deriving title by virtue of an extent of an execution thereon in favor of Abiel Wood, deceased, and a deed thereof from the administrator of Wood.

EXCEPTIONS from the Court of Common Pleas, Pehham J. presiding. Debt, originally commenced before a magistrate, to recover a penalty of one dollar of the defendant, an inhabitant of Eastport, for not having done, or procured another to have done, the duty of watch in that town, Dec. 28, 1835, as provided by stat. of 1821, c. 125.

<p>This was a process of forcible entry and detainer under the statute, and the defendant pleaded title to tlie premises in B. B. Leavitt, under whom lie claimed tlie right to be in possession. On the twenty-third of April, 1833, one Patch, being then the owner of the premises, gave a bond for a deed of the same, on the payment of certain sums in one, two, and three years, to one Florence Sullivan. The plaintiff attached all the right and interest of Sullivan in the land by reason of the bond, January 1, 1835, as provided by tlie stat. of 1829, c. 431. On the 11th of March, 1835, Leavitt, without any knowledge of the attachment, and for the purpose of securing a debt due from Sullivan to him, paid tlie balance then due from Sullivan to Patch on the bond, and Patch executed a deed of the land to Sullivan, and received back Lis bond. At the same time, Sullivan executed and delivered a deed of the premises to Leavitt, and both deeds were immediately recorded. The plaintiff entered his action at the March term of the Court of Common Pleas, 1835, and at the September term recovered judgment against Sullivan, and within thirty days duly levied his execution on tlie land in controversy, being a part of the premises described in tlie bond, but did not sell Sullivan’s right by virtue of the bond, in the manner required by law for the sale of an equity of redemption, the mode pointed out by the statute. The parties made a statement of all the facts, and submitted to the determination of the Court the question, whether the complainant was entitled to the possession of the premises against one claiming under Leavitt.</p> <p>contended, that this was the right and only mode in which the plaintiffs, under the circumstances, could avail themselves of the interest of Sullivan, by the bond, to pay their debt. When judgment was obtained, Sullivan’s equitable right under the bond had been changed to a legal title from Patch. The lien continued on the fee acquired by him, and the plaintiff’s remedy was by levying his execution, and not by selling an equity of redemption which did not exist. Sullivan could and did pay the amount due on the bond, which we could not prevent, but this did not dissolve the attachment. No act of his could do this, but he could and did acquire a title, and we were bound to levy, and not sell the equity. Where a right in equity is attached, and pending the suit the mortgage is redeemed, the lien attaches to the fee. Forster v. Mellen, 10 Mass. Jt. 421. Unless this be the remedy, the debtor may at any time defeat p.n attachment by procuring some one to redeem for him.</p> <p>contended, that the plaintiffs, by neglecting to pursue the mode poinfed out by the statute, had lost all benefit by their attachment; that the lien created by it was dissolved ; and that the lessor of the respondent had acquired a perfect title. Chickering v, Lovejoy, 13 Mass. R. 51; Stat. of 1829, c. 431; Shaw v. Wise, 1 Fairf. 113,</p>

ExoeptioNS from the Court of Common .Pleas, Smith J. presiding. The parties referred their demands by rule of Court, and when the report came in, which was in favor of the defendant, its acceptance was opposed by the plaintiff on the ground of improper management with the referees by the defendant. Several witnesses were examined, whose testimony was given at length in the excep-lions ; and thereupon the Judge refused to accept the report, and discharged the rule.

This case will be sufficiently understood from the opinion of the Court. The argument was in writing. argued, that on a motion in arrest of judgment, the declaration was fatally defective, inasmuch as there was no allegation that the deceased husband was ever seized of the lands during the marriage.

Assumpsit against the defendant as indorser of a promissory note, made to him by one Henry G. Sullivan, dated September 30, 1833, for $431, in four months with interest. With the plea of the general issue, there was a brief statement, that the note, indorsed by the defendant to the plaintiff, was void for usury in the transfer. The note was given by Sullivan to the defendant for the balance due him on the sale of a cargo of lumber.

<p>A foreign judgment is 'prima, facie evidence of tile debt sought to be recovered.</p> <p>The statute of 1821 c. 62, § 7, limiting “ ail actions of debt, grounded upon any lending or contract, without specialty,” does not estend to actions of debt on contracts raised by implication of law.</p> <p>That statute is no bar to an action of debt, on a foreign judgment, founded upon a promissory note for the payment of money, attested by a witness.</p>

<p>This was a review of an action brought by Deer Jsle against Dover, for the support and funeral expenses of one Mary French. The settlement of the pauper in Dover was not contested at the trial. In July, 1832, the year when the supplies were furnished, two of the three selectmen and overseers of the poor of Deer Die conferred together, and one of them wrote a notice to Dover, signed by him in behalf of the whole, and sent it. It was proved by pa-rol, that on the 24th of September, the same two overseers were again together, and fearing that they had no proof, that the first notice had reached Dover, they agreed, that one of them should prepare a notice, and carry it himself, or send a special messenger with it, to Dover, and on that day, one of them authorized and requested the other to prepare and sign for the whole, a new notice. The notice, a copy of which was produced, was signed thus.</p> <p>uRobert Campbell, | Overseers of the poor af Deer Isle™</p> <p>objected to the admission of the parol evidence of authority given by one overseer to the other to sign, and also that the notice thus signed was not sufficient. Weston C. J. presiding at the trial, admitted the evidence, and ruled, that the notice was sufficient. The special messenger sent with the notice, testified, that on the 24th of September, 1832, he carried the notice to Dover, and there inquired for the selectmen and overseers of the poor of that town, and was referred to Messrs. Moore and Patten ; that he went to the store of the latter, who had a sign over his door, and there found a man who answered to that name, and claimed to be a selectman and overseer of the poor of that town ‘ that he found a man, who called himself Moore, and who claimed to hold the same office in Dover; that he gave the notice to these men and requested payment of the bill, sent also by him; and that they made no objection to the form of the notice, but complained that the bill was too high, and offered to pay a part, which he declined to receive. It was objected by the counsel for Dover, that there was no competent proof, that the persons to whom the notice' was delivered, were overseers of Dover. The Chief Justice ruled, that it was competent evidence to go to the jury fcr that purpose. A default was entered by consent, it being agreed, that if in the opinion of the Court, it had not been made to appear by competent proof, that Campbell was authorized to make out and sign the notice, and if on that account, or from any defect in its terms, the notice should be held insufficient; or if the proof of its delivery to an overseer of Dover should be deemed incompetent or insufficient, the default was to be taken off.</p> <p>contended, that the notice was insufficient, because signed by one overseer only. The notice should bo in writing, and should show on its face, that it came from the overseers, or a majority of them. Here it is signed only by one, who does not profess to act for the others, nor to sign in an official character. Stat. of 1821, c. 122, <§> 17 ; Dalton v. Hinsdale, 6 Mass. R. 501. It has been decided, that a notice signed by one, acting in the name of the whole, is sufficient; but these very decisions imply, that one alone, is wholly insufficient. An answer may cure a defective notice, but here, there was no answer whatever, and of course no waiver. The parol evidence, that one overseer authorized the other to sign, cannot aid the defective notice, which must be in writing.</p> <p>There is no legal or sufficient evidence, either that Moore or Patten were overseers, or that the individuals conversed with, were Moore and Patten. Gorham v. Calais, 4 Greenl. 475.</p> <p>There is no distinction, as to the notice, whether the pauper be living or dead. Stat. c. 122, <§>11; Belmont v. Pittston, 3 Greenl. 453 ; Blakesburg v. Jefferson, 7 Greenl. 125. If notice be not necessary, when may the town sue ?</p> <p>argued, that the notice being throughout in the plural number, and the plural placed against the name of the overseer signing the notice, that it must be considered as a signing for the whole; and that is sufficient. Bridgewater v. Dartmouth, 4 Mass. R. 273 ; Yorlc v. Penobscot, 2 Greenl. 1 ; Westminster v. Bemardston, 8 Mass. R. 104 ; Garland v. Brewer, 3 Greenl. 197. The parol evidence, in relation to the authority to sign, was properly introduced, not to add to the notice, but to show that the overseer was authorized to act, as he did, for the whole. The eleventh section, under which this notice was given, does not require that a majority should sign the notice.</p> <p>If any objection had been intended to have been raised, whether the persons with' whom the notice was left were overseers of Dover, it should have been left to the jury. The proceedings at Dover, when the notice was carried there, were a waiver of any irregularity in the notice. The only objection made was to the amount of the charges. Embden v. Augusta, 12 Mass. R. 307 ; Paris v, Hiram, ib. 262; Shutesbury v. Oxford, 16 Mass. R. 102; York v. Penobscot, 2 Greenl, 1. But no notice was necessary, as the pauper had deceased, and the reason for giving it no longer existed, Ealton v. Hinsdale, 6 Mass. R. 501; Bath v. Freeport, 5 Mass. R. 325.</p>

Exceptions from the Court of Common Pleas, Pekham J. presiding. The action was for money had and received. The schooner Warwick, of which the defendants were owners, and the plaintiff one of the crew, fell in with the wreck of a vessel, having no person on board but the mate, and took from it and put on board the Warwick a quantity of goods, and landed them in safety.

ExceptioNS from the Court of Common Pleas, Perham J. presiding. The action was assumpsit, brought in the name of George W. Darling, and Joshua Wilkinson, as surviving members of a fish committee, consisting of three, chosen by the town of Sullivan in pursuance of the statute of February 28, 1833, entitled, “An act to prevent the destruction of fish in the town of Sullivan,” for money jointly expended, against the defendants as owners of the mill referred to in the statute.

<p>Exceptions from the Court of Common Pleas, Pehham J. presiding. *</p> <p>Assumpsit against James Conner and William Coleman. Conner lived at Gardiner, and owned a carding and fulling will at Unity. The business of carding wool and dressing cloth, was carried on at that mill by Coleman, and the articles charged were furnished by the plaintiff, and delivered at the mill. The plaintiff claimed to recover against both, on the ground, that Conner and Coleman were partners in the business carried on at that mill. No articles of copartnership were produced, or proved to have been made, and the plaintiff relied on other evidence tending to prove the partnership. Conner denied the partnership, and offered evidence tending to prove, that he had given notice to the plaintiff, that he would not be holden on any contracts made by Coleman. The counsel for Conner, requested the Judge to instruct the jury, that if Conner notified the plaintiff’s agent, who delivered all the articles, before the delivery, that he, Conner, would not be holden for any thing, unless delivered by his order, then Conner is not holden for any thing delivered to Coleman after such notice. The Judge did not give this instruction, but did instruct them, that if from the evidence in the case, they were satisfied, tiwt the defendants were copartners, such notice would not discharge Conner from further liabilities, unless lie should show them, that by the conditions of the copartnership, such power was reserved to Conner. At the request of Cornier s counsel, the jury were directed to find, whether such notice was or was not given. The jury found a verdict for the plaintiff, and also found, that such notice had been given. Conner filed exceptions.</p> <p>that where there is no express promise, as in this case, none can be implied against the express declarations of the party attempted to be charged. Whiting v. Sullivan, 7 Mass. 11. 107. One partner may contract alone, and be alone responsible for articles used in the partnership business. Sylvester v. Smith, 9 Mass. B. 119. And on the same principle may refuse to be bound without his consent. If one partner expressly forbids the delivery of articles on joint account, he is not bound after such notice, even where the partnership is not dissolved. 3 Kent’s Com. 45; Collyer on Part. 213, 214 ; 3 Conn. It. 124; 11 East, 264 ; 12 Johns. 11. 409.</p> <p>One partner has the right to bind the firm to any extent, in contracts for the use of the partnership. Man. & Much. Bank v. Gore, 15 Mass. R. 75; Board-man v. Gore, ib. 331. The better opinion is, that a notice like this does not exempt the party giving it from liability as a partner. The question is discussed, and the cases reviewed in Gow on Part. 75, note 3 ; 3 Johns. Ch. B. 400. But to avail himself of the defence, Conner should havo gone further, and have shown, that the articles went to Coleman’s private use. Being delivered at the mill, the presumption is, that the goods went to the use of the partners. Etheridge v. Binney, 9 Pick. 272; Walden v. Sherburne, 15 Johns. R. 422.</p>

<p>Exceptions from the Court of Common Pleas, Pep.ham J. presiding.</p> <p>In assumpsit to recover supplies furnished to one Sally Severance, alleged to have a settlement in Thorndike, it was proved by the plaintiffs, that a written notice, as required by law, was seasonably given by them to the defendants; that the supplies were furnished as charged ; and that when furnished to her, Sally Sever-anee had fallen into distress in Unity, and stood in need of immediate relief. The defendants then proved, that within two months from the receipt of the notice from the plaintiffs, two of the overseers of the poor of Thorndike verbally notified two of the overseers of the poor of Unity, that Sally Severance had not her residence in their town, and that they should do nothing about it, and asked the overseers of Unity, if they would receive a verbal answer as a legal one, and the reply was, that they would. The overseers of Thorndike further stated to the overseers of Unity, that they would give the answer in writing if required, the reply to which was, that they would not require a written answer, and that it was not best to be difficult about such matters. The Judge instructed the jury, that the overseers of the poor of Unity had authority to waive any objection to the answer not being in writing, required by the language of the statute, and to accept a verbal answer, as a legal one. On the return of the verdict for the defendants on the whole case, the plaintiffs filed exceptions to this ruling of the Judge.</p> <p>The stat. c. 122, positively requires the answer of the town to be given in writing, and the overseers of the poor have no power to give up or waive the rights of the town. The overseers have no power but such as is given by statute, and that does not extend to bringing actions or settling suits. Peru v. Brunswick, 5 Greenl. 31; Furbish v. Hall, 8 Greenl. 315. It has been decided, that the overseers have no right to make bargains to change the settlement of paupers. This is doing it, indirectly if not directly. Peru v. Turner, 1 Fairf. 185.</p> <p>Had the answer been in writing it would have been sufficient. Notice that a pauper has not a residence is equivalent to notice that he had not a settlement. Westminster v. Bernardston, 8 Mass. B. 104. The language made use of shows fully the intention to waive all objection to the notice not being in writing; and to suppose otherwise, would be to charge the overseers of Unity with intentional fraud. The overseers of the poor of a town have authority to waive any objection to the notice given, or to the answer to the notice. Embden v. Augusta, 12 Mass. B. 307; Shutesbury v. Oxfotd, 16 ib. 102; YorJc v. Penobscot, 2 Greenl. 1; Page v. Plummer, 1 Fairf. 334. Overseers of the poor of a town, have authority to bind such town in any matter relating to the support of paupers. Belfast v. Leominster, 1 Pick. 123. And they may bind the town by a contract not to take advantage of any defects in a notice. Hanover v. Eaton, 3 N. H. Rep. 38.</p>

Exceptions from the Court of Common Pleas, Pebham J. presiding. The facts in this case, the questions raised at the Court of Common Pleas, and the instructions and rulings of the Judge, may be found in the opinion of the Court. The verdict was for the defendant, and the plaintiffs filed exceptions. and cited 1 Gall. 419 ; 2 Black. Com. 405 ; 2 Camp. 575; Walcot v. Pomeroy, 2 Pick. 121. supported the ruling of the Judge, and cited Bond v. Ward, 7 Mass. II. 123.

Exceptions from the Court of Common Pleas, Pebham J. presiding. The action was case, for diverting the water from the plaintiff’s mill, situated within the county of Penobscot, and was originally brought|before a justice of the peace, in the county of Waldo, in which county the defendant resided. The damages demanded were twenty dollars.

<p>By the militia acts, stat. of 1834, c. 121, and stat. of 1837, c. 276, the captain of a company is not made a competent witness, if he acquire or assume any interest not imposed upon him by his official situation.</p> <p>Where an action to recover a fine is prosecuted by the clerk of a company of militia, the captain is not a competent witness, if he have made himself personally liable for the costs of the suit.</p>

Ehrob. to reverse a judgment of a justice of the peace in an action of debt, brought by Grant as clerk of a company of militia, against Ellis, to recover a fine for neglecting to appear at a company training at the annual inspection. The fifth error assigned was this. That no proof was offered, that said Ellis was legally warned to attend the inspection. The facts in relation to this error were as follows.

This was a writ of entry, and the case came before the Court on a statement made by the parties. On the second day of June, 1823, Henry Fossett, being then and until his death seized of the demanded premises and other valuable real and personal estate, made his last will and testament, and soon after died, and the will was duly proved.

Trespass by one tenant in common against another for strip and waste, under the stat. 1821, c. 35, $ 2. On the trial before Weston C. J., it appeared that the land had been divided into sixteen and an half shares. The plaintiff failed in showing title in himself to but four shares, and the defendant failed of proving title in himself to more than ten and an half shares.

<p>Where a contract for the sale of land, which when made was within the statute of frauds and might hayo boon avoided thereby, has boon fully executed, and nothing remains but to pay over the money received, the statute furnishes no defence.</p> <p>If the thing promised may le, •performed, within the year, the contract is not within the provision of the statute in relation to time of performance.</p> <p>Where one has an interest in land, and procures it to be conveyed to another on his parol promise to sell the land and pay over the proceeds of the sale ; this constitutes a good consideration for tile promise.</p>

Thespass by one tenant in common against another for strip and waste, under the statute. Edmund Moody the elder, died seized of the locus in quo, which descended to the plaintiff defendant, and four other children. The estate was insolvent, and the assets finally paid only sixty-eight per cent, of the claims allowed. There had been a sale of the land for the payment of debts by the administrator, and distribution made among the creditors upon the basis of that sale.

This was an appeal from a decree of the Judge of Probate directing the executor of the will of Daniel Walker deceased, to pay over a balance in his hands to the devisees in the will of certain real estate, to repay them, as far as the same would go, for real estate devised to them, and sold by the executor by license of Court to pay the debts of the testator.

This was an appeal from a decree of the Judge of Probate that the executor should not be held to account for the benefit of the devisees of the real estate under the will of Daniel Walker, for a balance arising from the sale of the devised real estate, on license for the payment of debts, and appropriated by him to the payment of the money legacies directed in the will to be paid from the personal estate, and to the payment of a sum allowed by the former Judge of Probate, to…

<p>Where a township of land was conveyed by the State to an individual, with a reservation, that each person who had settled thereon before a certain day, should receive a deed of a hundred acre lot, including his improvement, from the grantee of the State, on payment of a certain sum before a fixed day; it was held : —</p> <p>First, that the State could not elect to be disseized by a settler thereon at the time of the conveyance, when it would violate the declared intention of the parties; —</p> <p>And second, that it was the duty of the settler first to make known his election to take the land, and his readiness to pay the money on the assignment and conveyance of his lot, or that he had been prevented from so doing by the acts of the other party, before he coüld demand a deed.</p>

The writ contained one count, trespass quare clausum, for breaking and entering the plaintiff’s close in Cornish, called the Durgin mill privilege, and tearing down, and destroying the plaintiff’s sawmill, and carrying away the materials thereof and converting the same to their own use ; and another count, trespass de honis aspor-tatis, for tearing down the plaintiff’s sawmill, and destroying and carrying away the materials of the same.

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. Assumpsit on a promissory note, dated Sept. 9, 1835, for $100, payable to John A. Morrill, or order, and by him indorsed. The defence was grounded on the alleged false and fraudulent representation of Morrill, in regard to a lot of timber land of which he lield a bond.

This, action was brought to recover damages for the non-performance of the following written agreement, not under seal. “ The condition of this, obligation is such, that whereas the said Esther Curtis, Mehitabel Curtis, Eliza Curtis and Tobias Walker, as guardian of Jane S. Curtis, (if he can lawfully sell and convey the hereafter described premises, belonging to his said ward,) have agreed to sell and convey to John Wo.rih, a certain farm in Kenne-bunkport, which was the…

<p>Troves to recover an amount of specie and bank bills, which were deposited in the hands of the defendant, to abide the issue of a foot race to be run between Saco and Portland by Lewis, the plaintiff. The general issue was pleaded, with a brief statement of the infancy of the defendant. It was proved, that the defendant was under the age of twenty-ono years when the transaction took place. It was also proved, that Leivis demanded the money, and notified Littlefield not to pay it. over to the winner before it was paid, and that Littlefield, after being so notified, did pay over the money. WestoN C. J. presiding at the trial, instructed the jury that infancy was no bar to the maintenance of the suit. The verdict was for the plaintiff, and the defendant excepted to the instruction.</p> <p>contended: —</p> <p>1. That to maintain this action against a minor, it must be shown that the defendant, at the time the money was put into his hands, intended to defraud the plaintiff of it, or wrongfully convert it to his own use. Campbell v. Stakes, 2 Wend. 137; 2 Kent’s Com. 241.</p> <p>2. The defendant here was liable, if any liability existed, only on the contract made when the money was put into his hands; and the plaintiff has no right to turn an action of contract into an action of tort, to avoid the defence of infancy. Where assumpsit would lie, if of age, trover will not, if a minor. Jennings v. Run-dall, 8 T. R. 335; Story on Bailments, 35; Bristow v. Eastman, 1 Esp. Rep. 172; Green v. Greenbank, 2 Marsh. 485; Smith v. Bickmore, 4 Taunt. 474; Curtin v. Patton, 11 Serg. R. 310; Penrose v. Curren, 3 Rawle, 351.</p> <p>The argument for the defendant, admits, that the wager was illegal and void, and that an action of assumpsit might have been maintained for the money, had not the plea of infancy been interposed ; but insists, that because an action for money had and received might have been brought, infancy is a good defence to this. The well settled principle, that where trespass quare clausum will lie for cutting and carrying away timber, assumpsit will also lie, if the timber have been converted into money, is sufficient to show this position untenable. It will not be pretended, that infancy would furnish a defence in trespass quare clausum. But the money did not come into the hands of the defendant by virtue of any valid contract, as the authorities abundantly show, and as is admitted. Trover would have been the proper action, had the defendant been of full age. It is brought for the conversion of money belonging to the plaintiff, which came into the hands of the defendant without any legal authority, and which he had no legal right to retain for a moment. Here was no violation of any contract, because there was no contract, or none but an illegal one, but a wrongful act in converting the plaintiff’s property. If therefore the New-York and Pennsylvania cases relied on in relation to the misuse of an hired horse, be better law than that of Massachusetts on the same subject, which is much doubted, still it does not touch this case. The case from 3 Rawls, cited for defendant, is in favor of the plaintiff. Mills v. Graham, 4 Ros. & P. 140; Passe v. Smith, 6 Cranch, 226; 1 Chitty on PL 137; 2 Kent's Com. 241; Wheelock v. Wheelwright, 5 Mass. R. 104; Homer v. Thwing, 3 Pick. 492.</p>

<p>The lands of individuals, lying in common and uninelosed, cannot be understood to be “ commons of the town,” within the meaning of tbe stut. 1834, c. 137, concerning pounds and beasts impounded.</p> <p>The common law right to impound cattle, damage feasant, is taken away by the slat, of 1834, c. 137.</p> <p>The Provincial slat, of 1749, prohibiting cattle from running at large on Winter-harbor leach, and charging a committee, to be appointed by the town of Biddeford, with the execution of the law, gives to the town no title to the beach, and cannot be considered as evidence that it was then in the town.</p> <p>Nor can the acts of the committee under the law, give any title in the land to the town.</p> <p>By the word leach, in that statute, is intended the space between the high and low water mark.</p>

<p>Fbom the statement of facts on which the case was submitted for decision, it appeared, that the action was debt on a judgment in favor of Sylvanus Lowell, whose title to the land, Sept. 1, 1831, was, and now is, in the plaintiff, recovered against Seth Spring, in September, 1814. The judgment was founded on a complaint for flowing lands, under the act entitled, “ an act for the support and regulation of mills,” stat. of 1821, c. 45, wherein the yearly damages sustained by the complainant were estimated at the sum of fifty-five dollars, and which sum has not since been altered. Seth Spiing conveyed to John Spring, who before Sept. 1,1831, conveyed the same in mortgage to the defendants’ intestate, who, on the 5th of July, 1832, by virtue of a writ of possession issued upon a judgment on that mortgage, entered into the possession of tbe same, and have since retained the possession thereof. Before that day, the owner of the equity of redemption had the possession. The commencement of the year for which the annual damages were to be paid was Sept. 12. If the plaintiff is entitled to recover damages for the whole year ending Sept. 12, 1832, or any part thereof, the defendants are to be defaulted for the amount and interest; otherwise the plaintiff is to become nonsuit.</p> <p>The only question is, whether the mortgagee, who entered into actual possession under the mortgage, before the expiration of the year for which damage is to be paid, is liable to pay for the year.</p> <p>By the terms of the statute of flowing, there is to be but one action for the damages for one year. The owner cannot maintain an action until the end of the year, and has not the right to bring as many suits, as there were occupants. Whoever chooses to enter into the actual occupation of the land, subject to pay damage, and holds it at the end of the year, is subject to pay the yearly damages for that year. This liability exists, with much less reason for it, in case of leases. 2 Cruise’s Dig. 114, § 14; 1 Cov. & R. Powell on Mort., 181, note L; 7 Past, 335 ; 2 Car. & P. 370: 2 Pick. 267; 12 Johns. R. 165 ; 13 ib. 94; 19 ib, 337; 4 Kents Com. 473.</p> <p>submitted without argument.</p>

<p>RepleviN for a quantity of board logs.</p> <p>The plea in abatement was filed at the term at which the action was entered; the demurrer was put in at the next succeeding term; and the suggestion for a return was made at the next law term, when the case stood for argument. The case is sufficiently understood from the opinion of the Court.</p> <p>cited Gould v. Barnard, 3 Mass. R. 301.</p> <p>cited Quincy v. Hall, 1 Pick. 360.</p>

Thespass, for taking and selling the plaintiff’s horse. The defendant justified as highway surveyor of the town of Sanford. The material facts will be found in the opinion of the Court. At the trial before the Chief Justice, after the case was opened, the opinion of the Court was requested upon the following questions. 1. Whether the warrant and return on the same are sufficient to constitute a justification, if true ? 2.

Exceptioxs from the Court of Common Pleas, Whitman C. J. presiding. The action was against the defendant, as indorser of a note, for $1,000, dated Nov. 11, .1835, made by Phinehas Eastman and Lrnie 8f Usher, to the defendant or his order, payable in one year from date with interest, at either of the banks in Portland, and indorsed to tbe plaintiff.

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. The action was trespass.

ExceptioNS from the Court of Common Pleas, Whitman C. J. presiding.

<p>This was an action on a note of hand, and came before the Court on a statement of facts. The note was made to the plaintiff, or her order, by Dominicus PiJce, as principal, and by the other defendant as surety. D. Pike filed in set-off his own individual account against the plaintiff, claiming an amount exceeding the note. The question submitted, was whether the defendants were entitled to the set-off.</p> <p>At common law there was no set-off allowed, of unconnected claims. Each party was driven to his action. The law of set-off before judgment, is regulated entirely by statute. The stat. of 1821, c. 59, sec. 19, speaks only of demands between the parties to the suit; and by this is intended the- identical parties to the action ; a mutuality of demands. The statute also provides, that in such (rase the defendant shall have judgment for any balance found in his favor, in the same manner as if he had brought his action therefor. The consequence would be, that if this set-off be allowed, that one of the defendants would recover a sum of money against the plaintiff, when she was never indebted to him. Walker v. Leighton, 11 Mass. R. 140; Sherman v. Crosby, 11 Johns. It. 70; Palmer v. Green, 6 Conn. R. 14; Ross v. Knight, 4 N. II. Rep. 236; Osborne v. Etheridge, 13 Wend. 339.</p> <p>The justice of the case requires the set-off to be allowed. The account may have been suffered to run np for payment of the note. Either defendant might pay the note in money, and either is entitled to pay by offsetting a demand of his. A fair construction of the words of the statute shows such to have been the intention of the legislature. There is no necessity of rendering a judgment for the balance, and no claim is made for it in this case. Lyman v. Estes, 1 Greenl. 182; Barney v. Norton, 2 Fairf. 350.</p>

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. At the trial, when the evidence was out, of which the material parts are found in the opinion of this Court, the defendant insisted, that the jury might find, that no sufficient notice to charge the in-dorser had been shown; and that from the facts apparent in the case, the jury might find, that the plaintiff had no interest in the draft in suit, and requested the Judge so to instruct the jury.

ExceptxoNS from the Court of Common Picas, Whitman C. J. presiding.

Debt on a bond, dated July 21, 1835. The condition of the bond was, “ that whereas for a valuable consideration, we have agreed with and promised the said obligees, to sell and convey to them by good and sufficient deeds of warranty, within four months from July 17, 1835, township No. one,” called the Fowler and Ely township, and described in the bond, “ provided they pay or cause to be paid their drafts and notes, dated July 17, 1835, payable to their own order with…

<p>Where one covenants or agrees under seal with another to pay him a sum. or to do an act for his benefit, assumpsit cannot, he maintained, the only remedy being on the covenant or agreement.</p> <p>Where one promises another for the benefit of a third person, such third person may bring an action of assumpsit in his own name.</p> <p>But where one person covenants with another to do an act for the benefit of a third, the action cannot be maintained in the name of such third person.</p> <p>Yet without a violation of these rules, a sealed instrument may be used as evidence in an action of assumpsit, and may form the very foundation out of which the action arises, where in the sealed instrument there is no stipulation for payment or performance to the party to be benefited, or to some other person for his use.</p> <p>Thus where two persons set down on paper, under their hands and seals, a mere naked statement of what their rights, and the rights of certain others, shall be on the happening of a certain event, without any covenant or contract to pay to any one; the rights of such others secured by the instrument maybe enforced in assumpsit, for money had and received, in their own names.</p> <p>Where one sells properly belonging to himself and others, and takes promissory notes therefor to himself alone, payable on time, and transfers the notes for his own benefit, an action will immediately lie against him, although the notes may not have become payable.</p>

This was an action of trespass against the defendant, as Sheriff of the “county, for the acts of one Gower, as his deputy, in taking a quantity of goods, alleged to be the property of the plaintiff. The defence was, that the goods were legally attached by Gower on a writ in favor of Stipipson & Emery, against Asa Lawrence, W. Demmon and W. S. Roberts.

ExceptioNs from the Court of Common Pleas, Whitman C. J. presiding. Debt on a bond, dated Aug. 17, Í835.

This is a bill in equity, in which the plaintiff alleges, among other things, that Richard and Elizabeth Tappan were seized of an undivided share in certain lands in her right, and in order to make an equitable and just partition thereof, between the respective proprietors, agreed by parol to convey her interest- in this tract to an ancestor of the present plaintiff in equity, whose right he has, and suffered his said ancestor to enter into possession thereof; but that…

<p>The action was assurripsit for money paid, laid out and expended, in paying certain debts against the corporation, and in finishing the meeting-hoúse Belonging to the society. It was conceded by the defendants, that the plaintiff had paid debts to the amount of $217,13, and that he had a just claim for that sum¿ The plaintiff proved by witnesses, that he had employed persons to finish the inside of the meeting-house, and had paid for labor and materials $689,58. It did not appear, that the corporation had by vote authorized the plaintiff to finish the house, or by vote had appointed any committee or agents to do the work or cause it to be done. To show an acceptance of the work, and a ratification of his doings, the plaintiff offered to prove acts of members of the corporation, by occupying and enjoying the same house for public worship and other meetings. The counsel for the defendants objected to the admission of any evidence of acts to bind the corporation, other than the votes of the corporation, or acts of its authorized agents. Emery J. presiding at the trial, overruled the objection. The testimony of many witnesses, not very intelligible in some respects, jvas spread upon the report of the case, in relation to the doings of , the plaintiff and of other members of the society, which will be sufficiently understood from the opinion of the Court, as will also the proceedings of the plaintiff under a mortgage from the society to him. The verdict was for the plaintiff for the sum of $944,84, and was to be set aside, if the evidence was improperly admitted, or the charge erroneous.</p> <p>and cited 1 Pick. 87; 2 Pick. 505; 5 Pick. 259; 10 Pick. 398; 1 Johns. Ch. R. 385.</p> <p>and cited Abbott v. Alermon, 7 Greenl. 118; Hayden v. Madison, ib. 96; 2 Pick. í 145; 14 Mass. 11. 282 ; 17 Mass. R. 479 ; Wyman v. Hook, 2 (Ireenl. 337; Tinkham v. Arnold, 3 Greenl. 120; 7 Cranch, 2:99; Doug. 524; 3 Mass. R. 364 ; 5 Mass. R. 80; ib. 491; 6 .Mass. R. 40; 2 Stark. -Ev. 55; 4 B. & Cr. 575; Angelí & on Cor. 128; 12 Wheat. 64. Amies</p>

The facts appear in the opinion of the Court. At tbe trial before the justice the defendant objected, that he was not legally and sufficiently notified of the time and place of parade and inspection of the company, because of the omission of the name of the private warning him in the order. This objection was Sustained by the justice. Tbe plaintiff’s counsel insisted, that tbe appearance of the defendant was a waiver of tbe objection.

The two actions pending between these parties, arose out of the same transaction, and they will be treated as one. But as the parties agreed on distinct and separate statements, the abstract of the facts will be given in the same mode. Newhall & al. Ad’mrs vs. Vabgas.

Assumpsit for goods sold and delivered, and for money had and received. The defendant justified as a deputy-sheriff. The whole of the evidence introduced at the trial, which was before Emery J. is spread upon tlie report of the case, as are also eight questions put to the jury to be answered, and the answers thereto. The case will be sufficiently understood from the opinion of the Court without putting down here an abstract of the facts.

<p>This was a bill in equity, and was beard on bill, answer, and proof, The case, and the points made in defence, appear in the opinion of the Court.</p> <p>and cited 1 Story on Eq. >§> 188, 190, 193, 140, 161; 2 Kent’s Com. c. 39; Smithwiclc v. Jordan, 15 Mass. II. 113.</p> <p>and cited Low v. Treadwell, 3 Fairf. 441; Elder v. Elder, 1 Fairf. 80 ; 1 Mad. Ch. 76; Jeremy’s Eq. 366; 2 Atk. 592; 3 Swanst. 463 ; 1 Story’s Eq. 146, 147; 2 Johns. Ch. R. 557; ih. 632.</p>

Tins was an action of debt on a bond dated December 26,1836, in tile penal sum of 68,62, and came before the Court upon a statement of facts, which sufficiently appear in the opinion of the Court. commented on the poor debtor laws of 1822, 1831, 1835, and 1836, and cited Burroughs v. Lowder, 8 Mass. R. 373; Call v. Dagger, ib. 423; Clap v. Cofran, 10 Mass.

Exceptions from the Court of Common Pleas, Wm'f;?! C. J. presiding. Assumpsit for a gig and harness, with the money counts.

ExceftioNS from the Court of Common Pleas, Whitsían C. J. presiding. Assumpsit on a note made by the defendant to one Oliver Hale, Jr, and by him indorsed, dated July 23, 1835, lor $2760, payable in one year from date with interest. The action was referred in the Court of Common Pleas to J. Adams Esq., the decision to be made on legal principles.

<p>If one have a lien on chattels for labor performed thereon, and deliver them up to the owner, without insisting on holding them as security, the lien is dissolved.</p> <p>Where the plaintift" in proving a conversion of his property by the defendant, at the same time proves that the defendant said, that he acted under lawful authority, the burden of proof is on the defendant to show such authority.</p>

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

<p>Exceptions from the Court of Common Pleas, Whitman C. J. presiding.</p> <p>Assumpsit for goods sold and delivered, and on a bill accepted by the defendant. The facts in the case, and the ruling of the Judge of the Court of Common Pleas, are stated in the opinion of the Court. The verdict was for the plaintiffs, and the defendant filed exceptions.</p> <p>The arguments were in writing.</p> <p>1. The bill declared on was in law a payment of the account. Thatcher v. Dinsmore, 5 Mass. R. 302; Chapman v. Durant, 10 Mass. R. 51; Varner v. Nobleborough, 2 Greenl. 124.</p> <p>2. The alteration of the date of the bill by the holders of it, without the consent of the other party, was a material alteration, which destroyed the bill, and no action can be maintained upon it. Bayley on Bills, 91; Chitty on Bills, 204; Farmer v. Band, 14 Maine B. 225; 5 T. R. 538; 4 T. R. 320 ; 5 Bingham, 183; 3 B. & Aid. 660; Wheelock v. Freeman, 13 Pick. 168 ; Brackett v. Mountfort, 2 Fairf. 115 ; 3 Cranch, 37; 3 Yeates, 391.</p> <p>3. The plaintiffs’ leger should have been produced. Prince v. Swett, 2 Mass. R. 569 : 3 Dane, 321.</p> <p>1. The alteration of the date of the bill, making it to conform to the truth, and to the original intent and terms of the contract between the parties, does not render it void. Smith v. Dunham, 8 Pick. 246; Hunt v. Adams, 6 Mass. R. 519; 10 Wend. 93; Rayley on Bills, 96, note; 2 Stark. R. 313; Nevins v. Degrand, 15 Mass. R. 436; 6 Maulé & S. 142; Bowers v. Jewell, 2 N. U. Rep. 543; Chitty on Bills, 85; 2 American Com. Law, 226; 4 Petersdorff, 348, note; 2 Chitty's Rep. 122; Granite R. Co. v. Bacon, 15 Pick. 239; Hale v. Russ, 1 Greenl. S34; 10 East, 431. ■ The assent of the defendant to the alteration may well be presumed. Hunt v. Adams, 6 Mass. R. 522; Hale v. Russ, 1 Greenl. 334 ; Bayley on Bills, 97, note 17.</p> <p>2. The instruction given at the trial was right. The acceptance of the bill with the fraudulent intention of delaying the time of payment, and the alteration of the time of payment, rendered the bill a nullity, and the action for the goods sold may be maintained. Johnson v. Johnson, 11 Mass. R. 359 ; Stebbins v. Smith, A Pick. 97; 6 T. R. 52; 2 Caines, 118; 8 Johns. R. 389 ; 6 Johns. R. 110; 15 Johns. R. 474 ; 4 Johns. R. 296; Greenwood v. Curtis, 6 Mass. R. 358.</p> <p>The call for the leger, made after the trial had commenced, was too late. Rule of Court, 35.</p>

<p>Exceptions from the Court of Common Pleas, Whitman C. J. presiding.</p> <p>Assumpsit on a note, given by Daniel Mitchell, the intestate, to Nathan Oakes, Sen., or order, for $ 100 on demand with interest, dated June 8, 1818, and indorsed by the payee. With other grounds of defence, not noticed in the opinion of the Court, the statute of limitations was pleaded and insisted on at the trial. For the purpose of proving a new promise, the plaintiff called a witness, who testified, that after the death of the intestate, in February, 1837, he received a letter from the plaintiff, directing him to place the note, in the hands of an attorney for collection, if after once more notifying the defendant he neglected to pay it immediately ; and that he called on the administrator, who said, “ an arrangement will soon be made to pay the note. I calculate to pay it, and I always calculated to pay it.” The Judge ruled, that this was sufficient to prove a new promise, and directed a verdict to be returned for the plaintiff. The defendant filed exceptions.</p> <p>The case was argued in writing.</p> <p>contended : —</p> <p>1. That when a claim is barred by the statute of limitations at the time of the death of an intestate, the administrator has not, nor should he have, the power by any promise of his to revive the demand against the estate, and thus impair the rights of other creditors, or of heirs. They admitted, that there were some decisions opposed to this position, but said they were made at a time when the courts had nearly repealed the statute, and were inapplicable to the state of things since the recent decisions ; and they urged, that the belter opinions were against the right of the administrator to revive the demand by any act of his. 9 Bowl. & Hy. 40; 14 Serg. &f R. 195; 15 Serg. & R. 231; Chittij on Con. 334; 1 Wharton, 66 ; Parsons v. Mills, 2 Mass. R. 80 ; Gardner v. Tudor, 8 Pick. 210; Brown v. Anderson, 13 Mass. B. 201; Richmond, Pefr, 2 Pick. 567,</p> <p>2. .But if the administrator can in any case by a promise of his revive a claim barred by the statute, the evidence in this case is not sufficient for that purpose. Porter v. Hill, 4 Greenl. 41 ; Deshon v. Eaton, ib. 413 ; Bangs v. Hall, 2 Pick. 368; Robbins v. Otis, 3 Pick. 4; Cambridge v. Hobart, 10 Pick. 232 ; Perley v. Little, 3 Greenl. 97,</p> <p>This was an unambiguous acknowledgment of the debt. An acknowledgment within six years by the executor or administrator of the debtor, that the debt is undischarged, will take it out of the statute of limitations. The evidence also is sufficient to prove a new promise to pay the debt. Either will sustain the action. Porter v. Hill, 4 Greenl. 41; Deshon v. Eaton, ib. 413 ; Baxter v. Penniman, 8 Mass. R. 133; Brown v. Anderson, 13 ib. 201; Emerson v. Thompson, 16 ib. 429; Whitney v. Bigelow, 4 Pick. 110 ; Bangs v. Hall, 2 Pick. 368; 10 Bingham, 446 ; 1 Car. & P. 63 L</p>

<p>When a man has a wife and children under his immediate care and protection, and with his family is unable to support himself and them, lie is to be considered a pauper, within the meaning of the stat. 1821, c. 122.</p> <p>In such case if the notice be applicable only to the man himself, the amount expended ibr his support can be recovered by the town furnishing the supplies.</p>

<p>The statute of 1835, c. 165, took away the right to appeal from the Court of Common Pleas in petitions for partition.</p> <p>In making partition of real estate, the commissioners should be governed by the comparative value of the land assigned to each share, and not exclusive-! ly by the quantity.</p>

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. Assumpsit for clapboard and shingle machines. Among the objections made by the counsel for the ■ defendants, at the trial, and overruled by the Judge, Was one to the admission of Nahum Houghton, as a witness, on the ground, that he was interested, and had sold the machines to the defendants and had an interest in making them pay therefor.

The parties, in this action of dower, submitted to the Court, whether the demandant was entitled to dower in the premises ? and if so, to what part and proportion thereof, on a statement of facts. From the statement it appeared, that James Mosher, Jr. the husband of tbe demandant, on Sept. 9, 1814, being then seized of the premises, conveyed the same in mortgage to the trustees of the Ministerial Fund in Gorham.

<p>The action of replevin cannot be maintained, unless the plaintiff have the right to immediate possession of the property.</p> <p>Thus where there is an agreement in a mortgage of personal chattels, that the mortgagor shall retain the possession for a stipulated time, the mortgagee cannot maintain replevin therefor until the time has expired.</p> <p>But if the plaintiff have a right to the possession at the time of the trial, the defendant cannot have judgment for a return of the goods.</p>

<p>Where the proprietor of a tract of land gave a bond to another to convey the same to him or his assigns within a certain time and at a stipulated price; and where the obligee made a contract with a third person to share equally with him the profits made by any sale thereof effected through his agency} and where the obligor, Withiii the time fixed in the bond, arid without the knowledge of the obligee, conveyed the land to purchasers procured by such third person, and received of them, pursuant to an arrangement made with him, a sum in addition to the price stipulated in the bond; in a bill in equity, it was held, that the obligor was entitled to recover of the obligee one half of the amount; above the price stipulated in the bond, received by him on such sale.</p>

<p>Á new promise, made by one of two joint promisors, will take the case out of the statute of limitations against both.</p> <p>If a Judge of the Court of Common Pleas decline to decide a question of law, and leave it to the jury for their decision, and they decide it rightly, exceptions will not be sustained.</p>

This was an action of trespass for taking the plaintiff’s goods. With the general issue, the defendant filed a brief statement, setting forth, that he was sheriff of the county, and that McMillan, one of his deputies, attached the goods on several writs against one Kil-gore, and that the same were then Kilgore’s property.

<p>Where a negotiable note has been assigned, but not indorsed, proof by the maker, that there was no consideration, or that the note was fraudulently obtained by the payee, is admissible.</p>

At the commencement of the term at which the action was entered, and before the jury were empannelled, S. Emery, counsel for the defendant, in writing, moved the Court, that the writ abate, and that the action be dismissed, because the writ was not served upon the defendant by reading the same to him, or by leaving an attested copy, as the law requires, but was served merely by leaving a summons at his last and usual place of abode; and that said writ is an original summons,…

Exceptions from the Court of Common Pleas, WhitmaN C. J. presiding. This prosecution for an assault and battery, was originally before a Justice of the Peace, on the complaint of one Peterson, and came by appeal to the Court of Common Pleas.

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. The indictment for neglecting to keep a road in repair, was found January Term, 1837.

Writ of entry. From a statement of the parties, referring to several papers, it appears, that in 1790, William Butler, being then seized of the demanded premises, made his last will and testament, and died in 1791, and the will was duly approved.

<p>Where, in 3739, a grant of land was made, “ unto the inhabitants now settled on Slieepscot River, at a place called Newcastle,” which place was then unincorporated, to hold unto the “said inhabitants, their heirs and assigns forev-cr, to be and remain in .said .settlement now called Newcastle for a globe or parsonage forever”; and where the same place was, in 1753, incorporated as ■the town of Newcastle, ajad the inhabitants of the town over after claimed and improved the land for parochial purposes, until the town was divided into several parishes, since which the first parish have claimed and improved; the grant was held to pass the land to the inhabitants of the town as a gift or dedication to public, pious, and charitable uses.</p>

<p>A bill of sale of the hull of a vessel with all and singular her tackle, apparel and furniture, does not include a chronometer on board at the time, where no agreement of the parties, or custom of merchants, in relation to it, is made to appear.</p>

ExceptioNs from the Court of Common Pleas, Remngton J. presiding. Assumpsit brought against Purington and James Temple, who died since the commencement of the action, to recover the value of a quantity of iron. The delivery of one parcel of the iron was proved by the hooks and suppletory oath of the plaintiffs, and it appeared that the residue of the iron had been delivered on written orders. The iron was shown to have been used in the building of a vessel.

Exceptions from the Court of Common Pleas, Redington J. presiding. The action was brought upon a contract in writing, dated March 9, 1837, whereby it was agreed by the parties, that the defendant should transfer to the plaintiff, “ twenty shares in the stock of the Damariscotta Bank,” on the payment to him of fifteen hundred dollars on or before March 16, 1837. Several points were made at^the trial, but the decision here rested solely on one.

Exceptions from the Court of Common Pleas, Redington J. presiding. Writ of entry on a mortgage to John G. Borneman, the intestate, made to secure tbe payment of a note of hand. John G. Borneman died intestate in 1830. His estate was represented insolvent, and commissioners were appointed, but no claims were presented, and they so reported. But the administrator claims, that there is a debt due to him from tbe estate.

ExgeptioNS from the Court of Common Pleas, Redington J. presiding. The ad damnum in the writ exceeded one hundred dollars, and the service was made by a constable. The writ was not tested by one of the Judges in office at the time it was issued, but instead thereof was tbe name of Judge Smith, having then recently resigned. For both these causes the defendants seasonably filed their plea in abatement.

The action was brought for supplies furnished to one Mary Urn-berhind, alleged to have had her legal settlement in Lisbon, and came before the Court on a statement of facts agreed by the parties. If the pauper had her settlement in Lisbon, a default was to be entered ; but if in Richmond, the plaintiffs were to become nonsuit. Mary, the pauper, lived with one Edward Umberhind, as his wife, and was reputed to be his wife, in Lisbon from 1819 to 1828.

<p>Wkit of entry. The case was submitted on a statement of facts agreed by the parties. Simeon Turner, being seized of tbe demanded premises, made bis last will and testament in these words, the formal parts only being omitted. fi After my just debts and funeral charges are paid, I give and bequeath unto my beloved wife Sarah Turner all my real and personal estate, so long as she remains my widow. And in case she should marry again, then in that case two thirds of my estate remaining in her hands at that time is to be divided among my children and their heirs. And if she should not marry again, in that case at her decease, what of my estate may then remain, after paying her funeral charges, to be divided to and among my children in equal shares, to them and to their heirs forever. I do give to my wife Sarah my horse and chaise, and they are not to be inventoried as a part of my estate. And my wife Sa-* rah to be my sole executrix.” The will was proved in October, 1805. The widow did not marry again, and died intestate in 1826. Various conveyances and descents are given in the statement, but it is enough to state, that if the widow by the will took only a life estate in tbe land, the demandants are entitled to recover; but .if she took a fee simple estate, the defendant should prevail.</p> <p>The case was argued in writing, by Mellen and Randall, for the demandants, and by Groton and Tollman, for the tenant..</p> <p>The demandants’ counsel cited Co. Lit. 42, a; 2Bl. Com. 121; ■2 Bac. Ab. 272; Carle v. Thomas, 4 Greenl. 341; Minot v, Prescott, 14 Mass. R. 495; Bates v. Webb, 8 Mass. B. 458 ; 6 Cruise, 279; Noy, 80; Stevens v. Winship, 1 Pick. 318; 16 Johns. R. 537 ; Willes, 141; 1 Ves. & B. 466. They contended, that they had established these two propositions. 1. That only a life estate was given to the widow. 2. That no power was given to her by the will to dispose of the fee of the estate, express or implied, or on any contingency; and that no evidence appears, that she attempted it.</p> <p>The points attempted to be sustained by the counsel for the tenant will be seen in the opinion of the Court. They cited Parsons v. Winslow, 6 Mass. R. 174; Stevens v. Winship, 1 Pick. 3251</p>

<p>The action was trespass on the casé, whereby the plaintiff ■claimed damages of the defendants' for erecting a dam and mill below the mill of the plaintiff and on the same stream, and thereby raising a head of water which flowed back upon the plaintiff’s mill, dam and land, and greatly injured and destroyed bis timber, grass and interval. After the plaintiff’s evidence was closed, Weston C. J. directed a nonsuit, which was to be set aside, if the Court should be of opinion that the action was' maintainable on the facts. The material facts are stated in the opinion of the Court.</p> <p>and cited Match v. Dwight, 17 Mass, R. 289; 2 Dane, c. 55, art. 3, sec. 15 ; Miller v. Miller, 7 Pick. 133 ; Co. Lit. 200, b; 2 Black. Com. 193; 3 Black. Com. 221, 235; Cro. Eliz. 803; Rising v. Stannard, 17 Mass. R. 285 ; Bartlett v. Harlovj, 12 Mass. B. 352; Blanchard v. Baker, 8 Greenl. 253.</p> <p>and cited Stowell v. Flagg.t 11 Mass. R. 364.</p>

<p>Exceptions from the Court of Common Pleas, Smith J. presiding.</p> <p>The writ, dated April 11, 1836, contained a count on the note of which a copy fallows, signed by the intestate, with the money counts. “ Warren, May IT, 1808. For value received, I promise to pay tbe treasurer of the Warren Academy, or bis successor in office, or order, for the use of said Academy, one hundred dollars, on or before February 22, 1811, with interest annually.</p> <p>•“ William Starrett.</p> <p>“ Test. Jos. A• Dead-</p> <p>August 23, 1828.</p> <p>“ I hereby renew the above promise. William, Starrett.”</p> <p> if Test. Daniel Newcomb </p> <p>There were on the note nine indorsements of interest, the last in 1824. With the general issue, was pleaded by brief statement, the general statute of limitations. When the note was offered in evidence, the signature was denied, but on proof of the renewal, the whole was admitted. The defendant objected to its introduc-t tion, because it was made payable to the treasurer, and the action was brought in the name of the corporation. The Judge overruled the objection. The defendant contended, that the note, and also the renewal, was barred by the statute of limitations. The Judge ruled, that the renewal might be regarded as an independent note; and being witnessed, that it was within the exception of the statute. The defendant then offered to prove by oral testimony, that at the time when the note was given, it was obtained to enable the trustees to have an apparent amount of funds in order to obtain a grant from the legislature of Massachusetts, and that it was then promised and agreed, that the note should be given up after a few •years interest had been paid. The Judge ruled, that such evidence would contradict the note, and could not be received ; and thaf the note was a good consideration for the renewal. The defendant then offered to prove by parol, that the renewal of the note by the intestate was made upon a condition which was not complied with. This objection too was overruled. The defendant filed exceptions.</p> <p>1. The note ought not to have been read without proof by the subscribing witness. Homer v. Wallis, 11 Mass. R. 309. 2. The action should have been brought in the name of the treasurer, or his successor. Fisher v. Ellis, 3 Pick. 323; Phil. Ldm. Academy v. Davis, 11 Mass. R. 113; Essex Turn. Cor. y. Collins, 8 Mass. R. 298. 3. The defendant should have been permitted to prove the circumstances under which the npte was given. Folsom v. Murray, 8 Greenl. 400; 11 Mass. R. 113, before cited; Bou-telle v. Cowdin, 9 Mass. R. 254; Boynton v. Hubbard, 7 Mass. R. 118. 4. He should have been permitted to prove that the renewal was made under conditions which had not been complied with. Porter v. Hill, 4 Greeril, 41; Deshon v. Eaton, ib. 413. It was a mere admission relied on to fate the case out of the statute, and the whole was proper to be shown. 5. The renewal was incorrectly ruled to be an independent note, and within the exception of the statute. Stat. 1821, c. 62, §10; Gilman v. Wells, 7 Greenl. 25; Russell v. Swan, 16 Mass. R. 314.</p> <p>A moral obligation is sufficient to support an express promise. Andover, fyc. T. Corf. v. Gould, 6 Mass. R. 40. The aetion is rightly brought in the name of the corporation, on a note given to their treasurer. Amherst Academy v. Cowls, 6 Pick. 427 ; Levant v. Parks, 1 Fair/. 441. Whether there was fraud, or want of consideration, is not before the Court on these exceptions ; but merely whether the parol testimony was admissible to vary the written instruments. This was manifestly right. The note was a sufficient consideration for the renewal. Renewing the promise is equivalent to renewing the note. And this takes the case out of the statute of limitations. Murray v. Hatch, 6 Mass. R. 465; Hunt v. Adams, ib. 519; Hunt v. Adams, 7 ib. 518; Richards v. Killam, 10 ib. 239; Stackpole v. Arnold, 11 ib. 27 ; Rice v. West, 2 Fairf. 323 ; Pembroke v. Stetson, 5 Pick. 506 ; 6 Pick. 427, before cited.</p>

<p>After a member of a company of militia lias been elected and commissioned as Ensign, although lie has not been qualified by taking the oath of office, he is an officer, and cannot legally warn a private to perform militia duty, by leaving a notice.</p> <p>Where the Captain of a company has been elected and commissioned as Major, he is no longer commander of the company, although he lias not been qualified a's Major.</p> <p>Where the record shows, that the exceptions were not filed until after the adjournment of the Court without day, they cannot be considered as part of the record.</p> <p>But if the exceptions have been returned as párt of the record, and the defendant in error has pleaded in nullo est erratumhe cannot then make the objection.</p> <p>It is only when a civil suit is pending, that depositions, not in perpetuam, are authorized to be taken; and if the opposing party appear before the magistrate without objecting before him to the taking, and put interrogatories to the witness, this does not preclude him from making the objection at the time of trial.</p>

<p>ExceptioNS from the Court of Common Pleas, Whitman C. J. presiding.</p> <p>Assumpsit against the defendant as indorser, of a promissory note, dated January 22, 1834, for $30, signed by G. W. Washburn, and payable to Lewis, or his order in June then next, with interest, and also to recover costs of a suit against Washburn. On the back of the note were these words, not in the handwriting of the defendant, except his signature, which was admitted to be genuine. “ For value received, I guarantee the within note for debt and posts, without demand or notice. Isaac Lewis.” Before the commencement of this suit, the plaintiff had obtained judgment against Washburn, the maker, for $32,25, debt, and $8,06, costs of suit; and' an execution issued thereon had been returned unsatisfied. The plaintiff read the. note to the jury and offered to read the guaranty op the back thereof. The defendant objected to the reading of it in evidence, unless the plaintiff should first prove, that the same was on the back of the note, when Lewis put his signature there. The Judge permitted the paper to be read in evidence, and instructed the jury, that the legal presumption was, that the guaranty was written upon the note, when the defendant put his signature, and that the plaintiff was entitled to recover the amount of the note with interest, and that he was not entitled to recover the costs incurred in the suit against Washburn, as that part of the guaranty relating to the defendant’s liability for costs extended only to the .expense of protest, and making demand and giving notice. By permission of the Judge, the plaintiff wrote ovér the name of Lewis, “ For value received I indorse the within to William Gilman” The verdict was for the plaintiff, but did not include the costs of the suit against Washburn. The plaintiff excepted to so much of the instruction, as denied the right to recover the costs of the suit against Washburn; and the defendant excepted to so much as related to the presumption arising from the guaranty being over the name of the defendant.</p> <p>contended, that the instruction of the Judge, that the presumption was, that the paper was in its present state, when the defendant placed his name on the back of the note, was erroneous, and that it was right, as to the costs; and cited 1 Stark. Do. 310; Roseboom v. Billington, 17 Johns. R. 182; Josselyn v. Ames, 3 Mass. R. 274; Oxford Bank v. Haynes, 8 Pick. 423 ; Tenney v. Prince, 4 Pick. 385 ; Fuller v. McDonald, 8 Greenl. 213.</p> <p>argued, that the same presumption of law existed in relation to the contract on the back of the note, that did in respect to the one upon its face. The production of the contract and proof of the signature are alike sufficient in both in the absence of all other proof. The word costs is a technical term, and where no qualifying words are attached, means costs of Court. The term may be broad enough also to include the costs of protest, demand and notice. But these do not appear to be recoverable against an indorser without an express promise to pay them. City Bank v. Cutter, 3 Pick. 414 ; Young y, Bryan, C> Wheat. 146; Union Bank v. Hyde, ib. 572.</p>

The demandant in a writ of entry, dated May 17, 1836, counting on his own seizin and a disseisin by the tenant, demanded one twenty-eighth part of the premises, as heir at law to Benjamin B.allowell, and proved his title thereto on the trial. The tenant then proved, that he had been in the continued open possession of the premises for the last twenty-two years before the suit.

The plaintiff in an action of trespass, alleged, that he had been arrested and falsely imprisoned by the defendants. The defendants justified the arrest and imprisonment by virtue of an execution in favor of Lombard against the plaintiff, the other defendant, Eastman, being a deputy-sheriff and having the execution, in his hands.

The action was brought to recover damages occasioned by the neglect of the defendant, as their agent, to defend an action brought against them by one Blanchard, wherein he claimed the sum of $20. The facts in the case appear sufficiently in the opinion of the Court.

Exceptions from the'Court of Common Pleas, Whitman C. J. presiding. Scire facias against the defendant as trustee of one Chamber■* lain. The plaintiff’s counsel moved for leave to amend the writ of scire facias, by inserting a direction to attach the goods and estate of Thompson to the amount of four hundred dollars.

This is a writ of error, brought to reverse a judgment rendered by a justice of the peace, in favor of the defendant, in an action brought by the plaintiff in error against him to recover a fine for neglecting to appear at a company training. The only question was, whether Shorey was legally warned to appear at the training.

The action was for an alleged neglect of duty by the defendant, as a deputy-sheriff of the county of Kennebec. On June 2,1829, the plaintiff commenced an action against Lane & Leadbetter, claiming damages to the amount of two thousand dollars, and delivered the writ to the defendant, a deputy-sheriff, without any written directions on the back thereof, but with verbal directions to attach all their real estate, or the real estate of either of them, in that county.

The case came before the Court on a statement of facts, which appear in the opinion of the Court. The contract is joint and several. But if joint only, the non-joinder can only be taken advantage of in abatement. No demand is necessary because a time and place were fixed in the contract for the return of the articles. And it makes no difference, whether the contract was made in Netv-’Brunswick, or Maine. It was to be performed here. Bioeby v. Whitney, 5 Greenl. 192.

<p>Exceptions from the Court of Common Pleas, Smith J. presiding.</p> <p>The indictment, found at August Term, 1836, charged, “ that John Cottle of Windsor, in the county of Kennebec, at said Windsor, on Nov. 1, 1835, and on divers other days and times, as well before as afterwards, and until the finding of this indictment, with» out any lawful authority, license or admission, did presume to be a common seller of wine, brandy, rum, and other strong liquors by retail, in less quantity then twenty-eight gallons, and did then and there sell and cause to be sold, wine, brandy, rum, and other strong liquors, in manner aforesaid, to divers persons, to said jurors unknown, against the peace of said State, and contrary to the form of the statutes in sdeh case made and provided.” The exceptions state none of the facts, and consist solely in a reference to the indictment, and of the two following requests, and the instructions given by the Judge. The defendant, by his counsel, requested the Judge to instruct, “ 1. That the indictment was defective and therefore void, because it did not appear with sufficient certainty, that any offence had been committed. 2. That to be a common retailer within the meaning of said statutes, the party accused must be in the habitual practice of selling ardent spirits by retail, in less quantities than twenty-eight gallons to all persons applying- for the same, and that the proof in this case of a sale in March, July and November, to eight different persons, and at more than eight different times would not constitute him a common retailer. But the Judge instructed the jury, that evidence of that kind,- together with the facts which were proved, that the defendant had a sign, and had in his house a common bar-room, with kegs and decanters, containing ardent spirits to appearance, was sufficient, if unexplained, to authorize them to find the defendant guilty of the allegations in the indictment.” Cottle filed exceptions.</p> <p>The number and character of the objections made, may be understood from the negative given to them in the opinion of the Court. He cited, stat. 1834, c. 141, concerning innholders, retailers, &c.; stat. 1835, c. 193; 2 Russell on Crimes, 717 ; 2 Ltd. Raym: 1478; 1 Chitty’s Cr. Lato, 199; 5 T. R. 162; Commonwealth v. Pray, 13 Pick. 359; Butman’s case, 8 Greenl. 113 ; Commonwealth v. Hall, 15 Mass. R. 240; Douglas, 153 ; stat. 1821, c. 62, §14; 7 Dane, c. 218, art. 10,' § 3 ; Hawk’s Rep. 460 ; jtat. 1821, c. 92; stat. Geo. 3, c. 170 ; 2 Strange, 900; 2 Mason, 144; 1 Chitty’s Cr. Law, 292; Cro. Jac. 187 ; Hawkins, Book 2, c. 25, <§> 117 ; 3 Bac. Ab. 112; Crown Cir. Com. Ill; 3 Btlrr. 400; 6 T. R. 739 ; 3 Chitty’s Cr. Law, 788; Commonwealth v. Bolltom, 3 Pick. 281.</p> <p>remarked, that Butman’s case, 8 Greenl. 113, and the cases, Commonwealth v. Pray, 13 Pick. 359, and .Commonwealth v. Eaton, 9 Pick. 165, covered every objection made, which had any bearing on this case.</p>

Exceptions from the Court of Common Pleas, Smith J. pre* siding. Noble was indicted for fraudulently and wilfully taking from the JCennebec River and converting to his own use certain logs.

<p>Where a man abandoned his domicil in one town, and removed with his family to another, with the intention there to abide for an indefinite period, and was there in fact abiding, with such intention, on the twenty-first of March$ 1823, his home was there, and he thereby gained a settlement, although his right to continue in the house in which he lived depended on the will of the owner.</p>