Volume 16 — Maine Reports

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. The action was debt, to recover a penally incurred by taking fish, contrary to the provisions of “ An act to regulate taking of fish, called salmon, shad and alewives, in the Sebasticoolc River, in the town of Clinton,” passed in 1830. The plaintiff was duly authorized by the town of Clinton to tako fish in that river during the spring and summer of 1835.

This was a writ of error, brought to reverse a judgment of a Justice of the Peace in an action wherein Maywood claimed to recover of Morrill the penalty for nonappearance at a company training. The whole of the record in relation to the first error assigned, and the only one considered by the Court, will be found, in the opinion.

ExceptioNs from the Court of Common Pleas, Whitman C. J. presiding. The action was slander. The case will be sufficiently understood from the opinion of the Court. contended, that the Judge of the Common Pleas erred in admitting the evidence; and cited 1 Camp. 48; 2 ib. 72; 7 Johns. R. 269; 1 Phillips’ Ho. 151; 2 Stark. Eo. 870; 2 Stark.

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. The action was slander, for words alleged to have been spoken by the Wife of William Wyma?i of Clarissa Ratcliff, while sole, now tlic wife of Matthias Smith, the brother of Mrs. Wyman. The exceptions do not state what the pleadings were.

TROveb. for a cow and calf, on a statement of facts agreed. The plaintiffj being then the owner of the ców, on the 22d of April 1836, delivered her to one Nason under the following agreement. “ Monmouth, April 22, 1836 ; Rec’d of F. W. Dearborn, one four year old cow, and a calf by her side, which I promise to return to him in Augusta in one year from this date, with a calf by her side, or pay twenty-two dollars and fifty cents. Wm.

Exceptions from the Court of Common' Pleas, Whitman C. J. presiding. Scire facias against the defendant, as indorser of a writ in favor' of one Fabyan against the plaintiff, before a- Justice of the Peace»The Justice gave judgment for the defendant in that suit, and Fa-byan appealed to the Court of Common Pleas, and entered inte recognizance to prosecute his appeal. In the Court of Common Pleas, the present plaintiff recovered judgment- against Fabyan for' his costs.

, This was an action of slander in which the plaintiff alleged, that the defendant charged him with stealing sheep. The defendant pleaded the general issue, and filed a brief statement, wherein he set forth, that he expected to prove, that prior to the commencement of this action, the plaintiff had stolon boards and meal. At the trial before Wjsstos C. J. the defendant offered to prove, that tho plaintiff had stolen boards and meal.

<p>Whore the parties agree upon and mark out a lino of boundary, and the possession is in accordance with it for such length of time as may give a title by disseizin, the line cannot be disturbed, although found to have been erroneously established, unless there bo clear proof that the possession was-not adverse.</p> <p>The declaration of the grantee, made to a third person more than twenty years after the line was agreed on by the parties, that he claimed no more than the number of acres stated in the deed, and that if he had more in his possession it was occasioned by mistake, without any acts of either party, can' have no influence upon their rights.</p> <p>Where land is described in a deed by boundaries on throe sides, and is to extend west so far as to include a certain number of acres, and the parties to' the deed afterwards agree upon and mark that line, and a fence is erected thereon, and the possession is according to it for many years, and no other line is known between them; and' the grantor then makes a deed of land to' another person, describing it repeatedly as hounding on that side, upon the' west line of land previously sold; no land passes by this deed east of tha® lino.</p>

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. This was a petition for partition, wherein the petitioner claimed a moiety of the premises under a deed to him from Reuben Smith, dated Oct. 2, 1835; and to prove his title, offered in evidence a deed from Peter Sanborn to Enoch Smith, father of Reuben and Samuel Smith, of this and other land, dated Nov. 12, 1794, and recorded Oct. 20, 1814.

<p>Although there was a written contract between the parties, this does not preclude parol proof of other allegations made at the time, for the purpose of showing fraud.</p> <p>If one in a contract of sale take a warranty, he is not thereby precluded from rescinding it, if he can prove that it was effected by the fraud of the other party.</p> <p>Fraud may be committed by the artful and purposed concealment of facts, exclusively within the knowledge of one party, and known by him to ho material, and where the other party had not equal means of information.</p>

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. Trover to recover the value of a cow. With the general issue the defendant filed a brief statement, justifying the taking by an officer, whose servant the defendant was, by virtue of a writ of re-plevin sued out by the town of Rome against the plaintiff.

Exceptions from the Court of Common Pleas, Redington J. presiding. The form of action, facts in the case, and ruling in the Court of Common Pleas, appear in the opinion of the Court. The paper offered was a common bank check, of which the following is a copy. “ Commonwealth Bank. “ $140,00 Boston, Nov. 6, 1830. Pay to W. True, or bearer, one hundred forty dollars. To the Cashier. James Thomas.” The words, for value received, are not necessary.

Exceptions from the Court of Common Pleas, Redington J. presiding. This was a complaint, founded on the statute in relation to bastardy, in which it was alleged that on or about Oct. 18, 1822, that said Sarah Keniston, then unmarried, was begotten with child by said Rowe, and that she was delivered of the child, August 12, 1823. The complaint to the Justice was made and sworn to, Oct. 13, 1837.

<p>ExceptioNS Rom the Court of Common Pleas, Rmjhngton J. presiding.</p> <p>Assumpsit against the defendant as indorser of a promissory note made to him by one N. Norton, dated April 7, 1835, payable at the Branch Bank m Portland in two years from date with interest annually. The plaintiffs introduced two depositions taken in Portland, March 31, L838, at 10 o’clock, A. M., to be used at the then next term of the Court liolden at Augusta, on the third day of April; the distance between the places is more than fifty and less than sixty miles. The first day of April was on Sunday. These depositions were objected to because a sufficient number of days did not intervene between the time of taking and the Court to allow the defendant suitable time to attend Court. The depositions were admitted by the Judge. It appeared from these depositions, that the plaintiffs sent the note to Portland for collection to a bank there; that on April 10, 1837, a notary public took the note and carried it to the room occupied by the Branch Bank when the note was given and while that Bank did business in Portland, and there presented it and demanded payment of the Cashier of the Bank of Cumberland, then doing business in the same room, and that the Cashier of the latter Bank refused payment, and informed him, that Norton had no funds there, and that the Branch Bank had closed business in that city. It was proved that the Branch Bank had closed business in Portland in 1836, and had no place of business there afterwards. On the same day the Notary made diligent search in Portland for Norton, and was informed by Norton’s brother and others, that he had left Portland and gone to the western country. The Notary then left a demand and notice in writing at the place where Norton last boarded in Portland, and on the same tenth of April, the Notary prepared a written notice directed to the defendant at Bangor, his place of business, and deposited it the same day in the post office in Portland. This notice, he testified, described the note, stated that it was not paid by the promissor, and demanded payment of the defendant as indorser. To the admission of all this testimony the defendant objected. The Judge admitted it, and instructed the jury, that if believed by them, it was sufficient to prove a demand and notice. The verdict was for the plaintiff, and the defendant filed exceptions.</p> <p>The depositions ought not to have been received, because the party is entitled to time to return before the Court. Stat. 1821, c. 85, sec. 2; Ulmer v. Hills, 8 Greenl. 326. The demand was too late to charge the indorser. Stat. 1824, c. 272. If the Bank of Cumberland was the place of payment, because the Branch Bank had ceased to do business there, the note should have been in the Bank during banking hours. Berkshire Bank v. Jones, 6 Mass. R. 524; Woodbridge v. Brigham, 13 Mass. R. 556. The declarations of the Cashier are not admissible, for he is a mere stranger. Carle v. White, 9 Greenl. 104. As there was no Branch Bank at Portland, at which the demand could be made, it should be made at the usual place of abode of the payee, if to be found. This was not done, nor was due diligence used to find where his place of abode was. Hill v. Varrill, 3 Greenl. 233. No notice was given to the defendant to produce the notice sent to him, and therefore the contents of it were improperly given in evidence.</p> <p>afterwards famished the Court with a written argument.</p> <p>In his argument, he cited siat. 1821, c. 85, sec. 1, 2; Wyman v. Dorr, 3 Greenl. 183 ; Clapp v. Batch, ib. 216 ; 4 Pick. 302; 5 Pick. 528; State Bank v. Hurd, 12 Mass. R. 172; Shed v. Brett, 1 Pick. 413; Williams v. Bank of U. States, 2 Peters, 96; Widgery v. Munroe, 6 Mass. 11. 451; North Bank v. Abbott, 13 Pick. 465 ; Church v. Barlow, 9 Pick. 547; Chitty on Bills, 314; 2 Stark, on Eo. 160 ; Eagle Bank v. Chapin, 3 Pick. 180; 6 Wheat. 104.</p>

ExceptioNs from the Court of Common Pleas, Remington J. presiding. The action was brought by the plaintiffs as indorsees of a note given by the defendant to one Armstrong and by him indorsed. At the time of the trial in the Court of Common Pleas, there was an action pending in the same Court against the town for injuries alleged to have been sustained by Leadbetter by reason of a defective road within the town.

Thu action was assumpsit on a contract in writing to deliver certain specific articles to the plaintiff, dated Jan. 5, 1835. The declaration averred a demand of the articles on the last day of May, 1836. No time, or place, for the delivery of the articles was named in the contract. On the back of the contract was an assignment under seal from Bean to one Sherman, dated April 27, 1836.

Exceptions from the Court of Common Pleas, Redington J. presiding. The form of action was trespass de lonis asportatis. The evidence, the grounds taken by counsel, and the ruling of the Judge as it appears in the exceptions, will be found in the opinion of this Court.

<p>EXCEPTIONS from the Court of Common Pleas, Smith J. presiding.</p> <p>The facts in the case, and the ruling of the Judge of the Court of Common Pleas, will appear sufficiently in the opinion of the Court. The exceptions were filed by the defendants.</p> <p>Where an officer attaches property on a writ, the execution must be given to him within thirty days after judgment, or to another officer who shall demand the property within the thirty days, or he will not be held. Howard v. Smith, 12 Pick. 202. The sheriff is not bound for any but the official acts, or admissions of his deputy ; and therefore the deputy could not legally waive a demand of the property after he went out of office ; and if he did, it would bind only himself, and not the sheriff. Marshall v. Hosmer, 4 Mass. II. 60 ; Pond v. Ward, 7 Mass. P. 123; Blake v. Shaw, ib. 505. It was a perfect defence, if the property did not belong to the debtor, when attached. Fuller v. Holden, 4 Mass. II. 498; Tyler v. Ulmer, 12 Mass. 11. 163. The testimony rejected ought to have been admitted. Blood v. Harrington, 8 Pick. 552.</p> <p>The property was in the hands of the deputy in consequence of an official act, for which the sheriff was liable. His going out of office would not remove the liability to account for the property. Being equally liable before and after going out of office, an admission or waiver binds the sheriff, as much after as before. But the exceptions merely state, that he ceased to act as deputy, not that he ceased to be a deputy. Bridge v. Wyman, 14 Mass. B. 190. The witness could not be permitted to proye the contents of a written instrument. There was no necessity of giving notice to produce the paper, as the plaintiff did not propose to give evidence of its contents. The paper might have been produced, if the defendant had taken the proper course to procure it.</p>

Assumpsit on a note dated May 17,1834, for $317,17, signed by the defendant, on demand with interest. The action was commenced July 22, 1834. The parties agreed on a statement of facts. Libbey did not become twenty-one years of age until June 23, 1834. The note was given for goods sold by the plaintiffs to the defendants several months before it was given. The facts arc sufficiently apparent in the opinion of the Court. The arguments were in writing.

Fhom the statement of facts agreed by the parties, it appeared, that Susan Ireland, the pauper for whose support the action was brought, was the legitimate child of Jonathan Ireland, who was the legitimate son of Abraham Ireland. Abraham Ireland resided in the town of Canaan, at the time of its incorporation in 1789, in that part of it which is now Bloomfield, and gained a settlement there by the act of incorporation. Jonathan Ireland had a settlement derivatively from him.

<p>Where a grant of a township of land is made by the State to certain proprietors, reserving a lot of land near the centre of the township, and the proprietors afterwards assign to the State a lot near the side line of the town, which is accepted as the reserved lot, the title thereby becomes vested in the State. If another be in possession of land, claiming title, at the time the owner makes a lease thereof, this does not destroy the effect of the lease, when the lessee comes into possession under it.</p> <p>Although it may well be questioned, whether a person can be considered as holding lands by virtue of a possession and improvement against the State; yet if the State, by mere release without covenants, convey lands in the occupation of another, without expelling the occupant, he will be entitled to betterments against the grantee of the State, in the same manner as he would have been, if the title had been in the hands of a private person.</p> <p>Where the demandant recovers the land, and the tenant is entitled by the verdict to betterments, and the election is made by the demandant to pay therefor, he may set off his costs of suit in payment of the betterments.</p>

<p>If the proprietor of laud on which are a mill and mill privilege grant to one son “ the use, privilege and benefit of one half of a saw-mill,” and on the same day grant to another son a tract of land, including that whereon the mill stood, “ excepting the privilege of one half of a saw-mill conveyed to ” the other son, “ and his heirsthe grant and the reservation are to bo construed together to ascertain the intention of the parties; and one half of the mill and mill privilege pass by the grant.</p> <p>The words, mill privilege, or the privilege of a mill, in a grant are to he understood as meaning the land on which the mill and its appendages stand and the land and water then actually and commonly used with the mill and necessary to the enjoyment thereof.</p> <p>The omission to use a portion of the mill-yard for a single year will not prevent its becoming a part of it by appropriation and long use.</p> <p>Nor can the quantity of land be lessened by proof, that the mill might have been well used by the occupation of less land, than was in fact used.</p>

Exceptions from the Court of Common Pleas, Redington .1. presiding. The indictment charged, that Adams took certain mill logs from the Kennebec River contrary to the provisions of the stat. 1831, c. 521. Several questions were raised at the trial, and urged in the argument, of which but oho is noticed in the opinion of the Court.

Fkom the facts agreed by the parties, it appeared that the action was brought for tbe support of one Ami 11.

Debt on a bond from Savage as principal, and Dinsmore as surety, to the plaintiff, dated June 7, 1836, reciting that Savage had been arrested on an execution in favor of the plaintiff, and which bond was to be void, if Savage should within six months notify the creditor and submit himself to an examination, &c. Savage notified the plaintiff, and submitted himself to an examination within the six months, on Nov. 14, 1836, and went through a partial examination before the…

<p>If a contract bo not under seal, tlio authority of one person to contract for others may bo proved by their subsequent recognition.</p> <p>Where one party contracts with the other to fix on a proper location and to build a mill, the acceptance of the mill, after it is finished, is a waiver of any objection to the location, or to the timo, or to the manner of building.</p> <p>If a Judge do not himself decide a question of law, but leave it to the decision of the jury, and the verdict is right, it will not for that cause be set aside.</p>

This was an action of dower, wherein the only questions were, whether the former husband of the demandant was so seised of the premises during the coverture as to entitle her to dower; and if he was, whether dower was to be assigned in the whole property, as it then was, or as when the sale was made by the husband.

This was a writ of error brought to reverse a judgment of this Court rendered in favor of Wood against Kirby at the March Term, 1831. The first error assigned was this. “ 1.

This was a writ of entry on the seisin of the demandants wherein they demanded six thousand acres of land in the town of Lee, in common and undivided, alleged to have been conveyed to them by the tenant by deed of mortgage dated June 5, 1827.

This was a petition for partition, wherein the petitioners claimed to have assigned to them in severalty 6478 acres in the township of Lee.

<p>This case was heard on bill, answer and proof. The claim of the plaintiff for relief, and the defence set up in the answer, as well as the proof in the case, will be sufficiently understood in the opinions given by the majority and minority of the Court, without repeating the same here. The following is a copy of the contract referred to. “ Oleman, July 11, 1832. I agree to give Z. Rogers a bond for a deed of £ of 6 lots of land, being the same that I and J. O. Rogers bo’t of the State in Dec. 1830, the consideration of said bond when said Rogers pay, cause to be pay to the State their claim, and then 1 agree to deed to order, and I farther agree to give up all claim for stumpage cut on said land by other people. James Saunders, Jr.”</p> <p>The case was argued at the adjourned term in August, 1836, before the Chief Justice and Emeiiy J., Parris J. having resigned, and no successor having been then appointed, by Rogers, for the plaintiff, and by F. Allen, for the defendant. The Judges disagreed, and no opinion was given. It was again argued at the June Term, 1838, by Rogers and J. Appleton, for the plaintiff, and by F. Allen, for the defendant, before the whole Court, and the opinions of the Court were delivered at the July Term, 1839.</p> <p>it was argued, that although the contract was an agreement to give a bond of the land, it was an ordinary case of equitable jurisdiction, where specific performance is decreed. Story’s Eq. sec. 722, 729; 1 Sim. & St. 66; 16 Ves. 416; 3 Ves. 59. The defendant resists performance by setting up in his answer a condition at variance with the contract. There is no proof of this, and the answer is not evidence, because it is not responsive to the bill. 4 Paige, 33 ; 2 Stuart, 280; 3 Mason, 383. And because it sets up a condition not in the contract. 8 Pick. 119; 2 McCord’s Ch. R. 156; 1 Gill &/• John. 272; 1 Har. &f Gill, 13 ; 1 Munf. 373. When the answer admits certain facts, and relies on other facts by way of avoidance, such facts must be proved. 2 Johns. Ch. R. 62; Flagg v. Mann, 2 Sumner, 486. The respondent alleges in his answer, that he is not bound by his contract, because it was not mutual. Under the statute of frauds, even at law, mutuality is not necessary. Sug. Vend. & Pur. 43; 2 Story’s Eq. 715, 751; 1 Munf. 48; 3 Dess. 514. Equity will compel one to perform his contract, although the other party is not bound. 2 Dess. 271; 1 McCord’s Ch. R. 39; 1 Edw. 1; 1 Sim. & St. 63 ; 1 Russ. 391'; 4 Munf. 177 ; 2 Jac. & W. 425; 14 Johns. R. 485; 4 Greenl. 360. But here acts of possession and part performance are joined with the contract, and that is always sufficient. 6 Har. & John. 288 ; 14 Johns. R. 15; 4 Har. & McH. 252. It is objected in the answer, that specific performance of the contract is barred by lapse of time. But time here was not of the essence of the contract, and therefore no bar. The delay was no injury to the defendant. 2 Ball & B. 228; 12 Ves. 326; 4 Oreenl. 360; 2 Brockenb. 185; 2 liar. 8f J. 46. But here the plaintiff has been in possession, exercising acts of ownership, and paying taxes on the land. In such case, lapse of time is no bar to a specific performance. 4 J. J. Marshall, 157; 4 Munf. 332; 14 Johns. JR. 15; 2 Iiovenden on Fr. 20.</p> <p>it was argued, that the paper called a contract is so loose and uncertain, that no specific performance of it can be decreed. The Court will not undertake to conjecture the intention of the parties, and exercise its own discretion in making a bargain for them. 6 Johns. Ch. R. 222. It is without consideration, and therefore no decree can be founded upon it. It is said that it is not necessary to state any in the bill or declaration, where the statute of frauds interposes. If so, it does not dispense with proof of it, and none is here given v The want of mutuality is decisive against the plaintiff’s claim. Powell on Con. 221; Newland on Con. 152. The plaintiff must have performed on his part, before he can call on the other party to perform. It is said in the bill, that he arranged with the land agent of Massachusetts for delay. This is denied in the answer, and there is not the slightest proof of it. It was never done, but if it had been, it would have been wholly unavailing, because it is not pretended, that it was done with our assent. And further, we specially notified him to perform, and, he neglected. As no time was fixed in the paper, it should be done within a reasonable time. The law will not permit a party to lie by, and permit him to have advantage of the rise of property, and at the same time be under no obligation to take it, should it fall in price. 6 Wheat. 524 ; 4 Dallas, 345. Time is the essence of the contract in all such cases, and indeed in all cases whatever, where but one party is bound. He must show strict compliance on his part, or he cannot call on the other party to perform. 9 Cranch, 456; 2 Wheat. 336; 1 Peters’ Cir. C. Rep. 380; Sug. on Vend. & P. 246; Powell on Con. 235; Newland on Con. 242; 5 Cranch, 278; 3 Mass. R. 12; 10 Wheat. 152; 6 Cranch, 51; Fonb. Eq. 48, 482. A court of equity will not interfere where there is a perfect remedy at law, as there is here, if the defendant has failed to perform any contract. 16 Pick. 357; 4 Peters, 428,</p>

<p>In an action for a quantity of tin ware, where the defendant justified the taking as a justice of the peace, under stat. 3821, c. 71, against hawkers, pedlers, &c., the person from whose possession the property was taken, if not interested, is a competent witness for the plaintiff’, although a complaint is ponding against him for the penalty.</p> <p>And if the defendant object generally, that the witness is inadmissible from interest, and the plaintiff then release all claim opon him for the property in controversy, and lie is then admitted, and he afterwards on the examination, states, “ that he was hired by the plaintiff by the month, and was to be paid in proportion to his earnings,” this is not such interest as will render him incompetent.</p> <p>But if an interest had been disclosed, the defendant should have renewed his objection, when the witness made such statement, and cannot take advantage of it on his first objection.</p> <p>A justice of the peace has no power to secure and detain articles, liable to detention under that statute, until after a complaint made under oath.</p> <p>Where the complaint and the detention are on the same day, parol proof is admissible to show, that the detention was prior to the oath.</p> <p>Whether a trial shall be postponed on account of the absence of a witness, or shall proceed, rests in the discretion of the Judge; and the refusal to postpone presents no cause for a now trial.</p> <p>Where criminal prosecutions originate, under a statute, on complaint, one under oath or affirmation is implied, as a part of the technical meaning of the terms.</p> <p>The stat. of 21 James 1, c. 12, requiring actions against magistrates for acts done under colour of their office to be brought in the county in which they live, is not in force here.</p>

At the trial before Shepuey J. it appeared that the action was debt on two bonds from the defendants to the city of Bangor. The condition of one bond recited, that the defendants, Snow & Burr, had been licensed in the city of Bangor as retailers, and that of the other, that they had been licensed as common victual-lers.

<p>This was a petition for partition, filed at Oct. Term, 1835, wherein the petitioner alleges, that he is seized of an undivided fourth part of a piece of land in Bangor. The respondent claimed to be sole seized. The whole evidence in the case at the trial before Emery J. appears in the report, the conclusion of which is as follows. “ Upon the foregoing evidence, a verdict was returned in favor of the petitioner, subject to the opinion of the full Court, and to be altered or amended, or a nonsuit entered, agreeably to that opinion.” The respondent claimed one eighth part of the premises under a title derived from the extent of an execution thereon in favor of ZadoJc French, against B.obert JL apish, Oct. 16, 1819. The petitioner objected, that nothing passed by this extent, because the return of the officer shew, that the creditor chose two of the appraisers. That part of the return was thus expressed. £< The said Wiggms Bill being chosen by the creditor, and the said Joseph Leavitt being chosen by the creditor, and the said William Bruce being appointed by myself.” The officer made affidavit, that Leavitt was in fact chosen by the debtor, and that its appearing otherwise, arose from a mere mistake of his which he wished to correct. The petitioner made no title under Lapish, nor did it appear that any claim was made to this part of the land by any one under Lapish, except under that extent. The Judge ruled, that the objection was well taken, whereupon the respondent moved for leave for the officer to amend his return by stating that Leavitt was chosen by the debtor, but the Judge declined to grant the amendment. The facts in relation to the betterments, as well as in relation to the title of the respondent to a portion of the premi'ses under a sale to him by the administrator of the estate of Zadok French, to which the petitioner objected for alleged informalities, sufficiently appear in the opinion of the Court.</p> <p>That this was a mere clerical error, and might be amended, as the rights of third persons had not intervened. Buck v. Hardy, 6 Greenl. 162; Howard v. Turner, ib. 106; Litchfield v. Cudworth, 15 Pick. 23. That the amendment might well be permitted also because the petitioner does not claim under Lapish, but sets up an independent title, and cannot object. That the petitioner claiming under Harlow had no title. Harlow v. Fvench, 9 Mass. 11. 192. That the judgments establishing the title of the respondent and French and Lapish gave them a seizin without executing their writs of possession. McNeal v. Bright, 4 Mass. R. 282 ; Gilbert v. Bell, 15 Mass. R. 44. That the possession was voluntarily surrendered up by the petitioner, and no writ of possession was therefore necessary. That the sale by the administrator of French was good, and if not, the petitioner, a mere stranger, cannot object to any informalities. Knox v. Jenks, 7 Mass. R, 488 ; Gray v. Gardner, 3 Mass. R. 399; Colman v. Anderson, 10 Mass. R. 105; Ferkins v. Fairfield, 11 Mass. R. 227; McLellan v. Whitney, 15 Mass. R. 137; Watkins v. Green, 7 Wheat. 27.</p> <p>and cited stat. 1821, c. 47 ; Means v. Osgood, 7 Greenl. 146; Coburn v. Ansart, 3 Mass. R. 319; Ladd v. Blunt, 4 Mas's. R, 402; Prescott v. Pettee, 3 Pick. 331.</p>

<p>At the trial, before Emery J. the plaintiffs introduced, the depositions of Samuel Getchell and Robert Getchell. The counsel for the defendant objected to the admission of the answers to ten of the questions put to the witnesses, because the questions were leading. The following are some of those objected to, and others were similar.</p> <p>“ 2d interrogatory by JV. Wilson, Esq. Atty. to plff’s. Was or was not Ard Godfrey, Jr. frequently at the shop of Rowe and Turner j and did he not himself give the directions in relation to the aforesaid work, and did you or not hear him engage to pay them for the said work 2 Answer by the deponent. I did hear him agree to pay for the work done, and he was in the shop as often as once a day, and frequently three or four times a day, to give directions about the work done.” “ 6th question to Robert Getchell, by same. Did you see or know of any one, at the time you were in the employ of Rowe & Turner, exercising any acts of ownership or control over the said shop or the business of said shop, except said Rowe & Turner 2 Answer by deponent. I did not.” The defendant was duly notified, but did not attend at the taking of the deposition. The objection was overruled by the Judge, and the questions and answers were permitted to be read. The verdict was for the plaintiffs, and the defendant filed exceptions.</p> <p>That the testimony taken by deposition should be as near as possible to that delivered upon the stand, if the deponent were personally in Court. 2. The interrogatories -in both cases should be propounded in such form, as not to suggest to the witness or deponent the answers which he is to give; otherwise they are leading, especially if they can be answered by yes and no. Woodman v. Coolbroth, 7 Greenl. 184; 1 Stark. Ed. 122 and note. He contended, that these answers sbould have been excluded. The omission to attend the taking of the deposition is not a waiver by the defendant of any right to make this objection in Court. There can be no waiver, except when the party is actually present, and does not make the objection. The authorities go to that extent and there stop. Woodman v. Coolbroth, 7 Greenl. 183: 3 Binney, 130: Potter v. Leeds, 1 Pick. 313.</p> <p>said that the objection was merely formal, and that it was very questionable, whether the questions were leading. 1 Stark. B. 82. And they contended, that if they were leading, the objection should have been made at the time of the taking, or it was waived. Woodman v. Coolbroth, 7 Greenl. 181; 10 Scrgt. & R. 63; Talbot v. Clark, 8 Pick. 55. And not only must the objection be made, but the grounds of it must be stated. Allen v. Babcock, 15 Pick. 56. And if the party does not choose to attend, such formal objection is waived. 1 Pennsyl. R. 305.</p>

<p>The action, commenced April 30,1836, was debt upon a bond dated Jan. 2, 1836, given by Fish as principal, and the other defendant as surety, to procure the liberation of Fish from prison, conditioned that be should continue a true prisoner, within the limits of the jail yard, until lawfully discharged, and to surrender himself, and go into close confinement in nine months and three days, unless sooner lawfully discharged. The general issue was pleaded, and a brief statement filed, alleging that the bond was obtained by duress.' Before the arrest of Fish upon the execution, he had been elected a Senator, to represent the county of Penob-scot, in the Legislature of the State for the year 1836. A deputy sheriff received the execution on which the arrest was made, with orders to collect it or commit the debtor forthwith, and on the last Monday of Dec. 1835, called on Fish at his residence in Lincoln, and disclosed his orders. Fish replied, that he should be in Bangor on Friday of that week, and should rather be committed there, than to go down on purpose, but that he should protest against being committed at all, as ho was a member of the legislature, and could not legally be committed. The officer told him, that he could not go to Bangor at that time, but for Fish’s accommodation would hand the execution to another officer who would be there at the time proposed. The officer to whom the execution was delivered, saw Fish at Bangor on the following Friday, Jan. 1, who agreed to be committed the next morning, but at the same time protested against the right to commit him, and said, if he was committed, he must give a bond. He was committed the next morning, and liberated on giving the bond declared on to procure his discharge. On Monday morning next following, Fish left Bangor for Augusta, and attended to his duty on Wednesday of that week, the first day of the session, as a member of the legislature, and continued his attendance until the adjournment. The distance from Augusta to Bangor was agreed to be sixty-six miles, and from Bangor to Lincoln, fifty miles; and that stages passed every day between Augusta and Bangor, and every day but Sunday, between Bangor and Lincoln.</p> <p>The trial was before Sbepley J. who instructed the jury, that if it was proved to their satisfaction, that it was agreed between Fish and the first officer, and was their design to give the officer the same right to arrest Fish on Friday, which he had the preceding Monday; and that it was agreed and designed that the officer should have the same right to arrest Fish on Saturday as on Friday, then they might consider Fish as having waived his privilege from arrest on Saturday; that being different officers would not alter or change the right to arrest; and would then find a verdict for the plaintiff; but if not so proved, they would find for the defendant. The jury found, that the privilege of Fish had been by such ■ agreement waived; that he was on his way to attend the legislature when arrested; and that he was not taking an unreasonable time to travel from his home to attend the legislature. They found a general verdict for the plaintiff, which was taken subject to the opinion of the whole Court.</p> <p>contended, that by the stat. 1835, c. 195, jail yards were abolished, and that the condition of the bond had not been broken, when this suit was brought, the nine months not having then elapsed; that as a member of the legislature, Fish was at the time privileged from arrest; that he did not waive any rights, because at the time he protested, that he was not liable to arrest, and because he had no power to waive his right to attend the legislature, for it was the right of his constituents ; that a privilege from arrest was a privilege from imprisonment, and that Fish had the constitutional right to attend the legislature without subjecting himself to an action ; and that the bond was void, as against public policy. They cited Const, of Maine, Art. 4, part 3, sec. 8; same Art. part 2, sec. 4; 2 Petersdorff’s Ah. 209; 2 Com. Law Rep. 388; Baylies v. Fettyplace, 1 Mass. R. 338; 1 Bin-ney, 77 ; 1 Dallas, 297; 4 Munroe, 539; 4 Har. & McHen. 295.</p> <p>argued, that the only matters put in issue by the pleading of the defendants are what would be triable at common law, under the pleas of non est factum, and of duress; and therefore that the objections now taken, though not made at the trial, that the bond was not according to the provisions of the statute, and that the action was brought too early, are inadmissible. Whatever is not denied by the pleas is admitted. 1 Chitty’s PL 425; Saund. PI. & 'Em. 191, 407, 445; Wheaton’s Selw. 493; Stárlc. Ev. Bail Bond. He also argued, that if it were competent for the defendants to make these objections, that they must be unavailable as a defence. He contended, that Fish was not privileged from arrest. Privileges are to be construed strictly. Coffin v. Coffin, 4 Mass. R. 28 : 2 Johns. Cases, 415; ib. 222. Although decisions on this particular part of the constitution may not be found, yet there are in principle decisions in our favor. Hobbs v. Getchell, 8 Greenl. 187; 4 Bac. Ab. 233, Priv. C. 4. That privilege may be waived, is never questioned in England, but constantly admitted. 2 II. Black. 267, 299; 2 Moore & Scott, 581; 6 Barn. & Cr. 84. And in this country it has been expressly so decided. 4 Dallas, 107 ; Brown v. Getchell, 11 Mass. 11. 14. But in this ease no privilege had attached when the officer would have arrested Fish, had he not voluntarily for his own convenience substituted a later day.</p>

The plaintiff, an inhabitant of an unincorporated plantation, called Number One, adjoining upon the town of Lincoln, but on no other town, brought this action for the support of one Benjamin Crocker, from September 15, 1833, to April 22, 1834. It was not proved tliat tbis plantation was taxed in Lincoln.

<p>If the obligor in a bond, so written that it appears to have been contemplated by the parties that it should be signed by several, sign and seal the paper, and at the same time annex a reservation or condition to his act, that it shall not be binding upon him, unless signed by the other obligors named, he will not be bound by it, unless signed also by the others named as obligors; but if the bond be signed and delivered without any condition or reservation annexed, although under an expectation, that it would be signed by the others, it is his deed, and it will be binding upon him, although the others do not sign it.</p> <p>Where one party, by a writing under seal, agreed to make a certain discount on demands not then payable, if the other party would by a certain time “ give good and reasonable security for the payment of the balance” by a time fixed; an agreement made by responsible persons with the obligee to pay the sums due to the obligors, with a power authorizing the enforcement of payment in the name of the obligee for the benefit of the obligors, they having received advantage from it without making known any objection, was held to be a substantial compliance by the obligee with the agreement.</p> <p>If a covenant be by several with one, if the interest bo separate, and the performance cannot be made jointly, the covenant must be regarded as several, unless the intention of the parties appears to have been, that each should be bound for the performance of the other.</p> <p>The pendency of a bill in equity, claiming the specific performance of a contract, does not preclude the plaintiff in equity from making a defence at law in a suit by the other party against him.</p>

This is the same writ of entry which was before the Court on the then state of facts of which report is found in 14 Maine 11. 9. The additional facts appearing on the new trial will be found in the opinion of the Court now given.

Wiíit of entry. The demandant claimed under a deed from Nathaniel Harlow and Mary Parker, dated May 14, 1829, acknowledged, Jane 6, 1831, and recorded March 11, 1833. The tenant then read in evidence, a mortgage deed from Bagley to Harlow and Parker, of the same date of the first to secure the purchase money, but not acknowledged or recorded.

Assumpsit on a note, dated April 28, 1835, payable to C. A. Stackpole, or order, at tbe Suffolk Bank in Boston, in eight months from date, signed Hills, Bice &f Co., in the bandwriting of Ilills, and indorsed by Stackpole. The action was against Joel Hills and William McLellan.

<p>This was a writ of entry, brought to recover a tract of land in Orrington, being part of No. 25. The facts in the case sufficiently appear in the opinion of the Court. At the trial before Sheplet J. the counsel for the tenant requested the Judge to instruct the jury —</p> <p>1. That the deed from the Commonwealth to Brewer and Fowler operated to convey a title to the premises to the settler represented by Gould, and that their deed to Sweat would not operate to convey it to Sweat.</p> <p>2. That Gould being in possession and claiming to hold, and actually occupying it as his own property at the time of the deed from Brewer and Fowler to Sweat, that deed could not convey it to Sweat, because they were disseized at the time.</p> <p>3. That at the time of the deed from Sweat to Wilkins, Gould was in possession under the title of Neal, and claiming and exclusively occupying by virtue of that title, and the title in Wilkins by that deed was defeated, Sweat being disseized at that time.</p> <p>The Judge instructed the jury— 1. That the title did not pass to the widow Ary by the deed to Brewer and Fovjler, nor to Gould after the designation of the lot by Bummer.</p> <p>2. That when Gould purchased of the widow Ary, if lie did so with the design to take her right as a settler, and to obtain a title through Brewer and Fowler by complying with the terms stated in their deed, and have his lot assigned to him as a settler, then his possession would not be adverse to the title of Brewer and Fowler, but in submission to it, and there would be no dis-seizin ; but if he claimed and occupied with a design not to take a title under them, but claimed to hold against them, being in the exclusive occupation, then they would be disseized, and no title would pass by their deed to Sweat.</p> <p>3. That if, at the time Sweat conveyed to Wilkins, Gould claimed to hold the premises as Neal’s property, and exclusively occupied as such, then no title would pass by that deed. But if he procured the deed from Sweat to Willems, and did not claim to hold against that title, but yielded to it, and intended it should pass the title to Wilkins, then the title would pass, and there would be no disseizin. And if a disseizin had not been proved in either of those ways before stated, the demandant is entitled to recover; but if a disseizin had been proved in either of those ways, then their verdict should be for the tenants.</p> <p>The verdict was for the demandant, and was to be set aside, if the instructions were erroneous.</p> <p>argued in support of the grounds taken in the requests for instruction, at the trial, and cited Shep. Touch. 75, 76; 4 Com. Big. Fait, E (9); 4 Kent, 468; and commented on the several resolves of the Commonwealth of Massachusetts, in relation to this land.</p> <p>argued in support of the ruling of the Judge.</p>

<p>This was an action of debt, commenced, Feb. 18, 1836, upon a bond made by the defendants, James T. Hobart and Sylvanus L. Mitchell, to the plaintiff, dated June 15, 1835, which recites that the defendants had received the full consideration, $44,998,33, for a tract of land described, and concludes thus, “ Now if we in a reasonable time after request shall make and execute to said Hill, or assigns, a good and sufficient deed to convey the title to said premises, then this obligation is to be void, otherwise to remain in full force and effect.” It is believed, that the case will be sufficiently understood from the requests for instruction, from the instructions given, and from the opinion of the Court, without a particular statement of the facts.</p> <p>At the trial before Siieplet J. the defendants’ counsel requested the Judge to give the following instructions. 1. That a demand was not good without the production of the bond, and the offer of a deed drawn, and designation of the parties. 2. A deed from S. L. Mitchell alone, if the title was in him, was sufficient to answer the condition of the bond, and if Hobart had no title in him, it was not necessary for him to sign the deed. 3. If there was a demand in August, and also a promise to deliver a deed at Bangor in the fall when Mitchell came down, yet if Hill after-wards made another demand in November, and a deed was given to him, it was so far a waiver of rights under the first demands, that those first demands may be laid out of the case, and the rights of the parties depend upon the last demand, and the proceedings thereupon. 4. That a deed from S. L. Mitchell, if he had a clear title except the two mortgages-, was sufficient to convey the title to the premises. 5. That if Hayward upon inquiry was told, that the mortgages existed, and he took the deed notwithstanding, and if Hill knew at the time the deed was sent to him, that the mortgages were still existing, by keeping the deed the time he did, he waived all objections on account of the mortgages. 6. That if the plaintiff is entitled to recover any damages, having-shown no special damage, and the defendants having in July, 1836, removed all incumbrances, and having afterwards, on the 3d of August, 1836, again offered the deeds, he can recover nominal damages only. That if the incumbrances existed at the time of giving the deeds, and had never been removed by the defendants, the utmost extent of the damage in such event would be the amount of the incumbrances. 7. That the plaintiff can compel by law or in equity the delivery of the deed to him at any time.</p> <p>The Judge did not give any of the instructions thus requested, and instructed the jury as follows: That if they were satisfied from the testimony, that a demand had been made of either of the defendants for a deed, such demand would be good, although the person making it did not have the bond with him, when it was made ; that it was the duty of the defendants, both by their contract and by law, to make, execute, and deliver the deed, and that it was not the duty of the plaintiff to have it prepared and tendered to them for execution; that a deed from Mitchell alone, even if the title was good in him, would not be a performance of their contract; that the deed of the 20th Nov. would not be regarded as a compliance, as there was a defect in two particulars, in not being signed by Hobart and in not conveying a perfect title, it being proved and admitted, that there were incumbrances upon the land by two mortgages upon the same ; that the deed of Nov. 20, could not therefore be regarded as a performance by the defendants, unless from the circumstances under which it was received by Hayward, referring them to the proof in relation thereto, it was received with a full knowledge of the defect of title, and with a design to accept the same, and not for the purpose of transmitting it to the plaintiff for him to decide for himself by the consent of the defendants, and that if from the proof they believed it to have been received by the plaintiff himself without a knowledge on his part, whether the title was then free from incumbrances, and that he retained it only a reasonable time for him to obtain that information and then returned it, that would not amount to an acceptance on his part so as to prevent him from insisting upon a legal performance, nor would it amount to a waiver of his legal rights. In relation to the amount of damages, the jury were instructed, that the rights of the parties must be determined by the state of the facts at the time this action was brought, and that all subsequent proceedings might be laid out of the case ; that the obligation of the defendants required them to convey the title to the land described; that if they had not complied with it, the injury to the plaintiff was the loss of the title to the land, and that the proper and legal compensation was the value of the land at the time of a demand made and a refusal or neglect to perform, and that in finding that value, they might take into consideration the price agreed by the parties, and such other evidence as there was in the case. The jury found a verdict for the plaintiff for the consideration money, and interest thereon, which was to be set aside, if there was error in withholding the instructions, or in giving such as were given.</p> <p>contended that the instructions requested at the trial, ought to have been given, and that the instructions actually given, did not meet the case, or were erroneous. He cited Sugden on Vend. 162; Parker v. Parmlee, 20 Johns. R. 136; Atwood v. Clark, 2 Qreenl. 249; Freeman v. Boynton, 7 Mass. R. 483; Fuller v. Hubbard, 6 Covjen, 13; Hackett v. Huson. 3 Wend. 249.</p> <p>citing Lawrence v. Barker, 1 Mass. R. L91; Porter v. Noyes, 2 Greenl. 22; Sanford v. Aiken, 5 Mass. R. 494; Barney v. Norton, 2 Fairf. 350; Bean v. Mayo, 5 Greenl. 94; Ketchum, v. Evertson, 13 Johns. R. 359; Newcomb v. Brackett, 16 Mass. R. 161; Fames v. Savage, 14 Mass. R. 425; Com. Dig. Condition.</p>

<p>Tbespass guare clausum, and de bonis asportatis. The plaintiff had leave to amend his writ, and amended by altering the time when the trespass was alleged to have been committed, and the defendants objected to the amendment. From the papers, referred to in the case, it appeared that on Aug. 14, 1833, one Bennoclc conveyed certain lands, adjoining Penobscot River, to R. M. N. Smyth, one of the defendants, “reserving, however, the right of keeping a board sluice, on or near the place where William Ham-mat fs board sluice now is, and also the right to the said Hammatt of rafting boards, and laying rafts at the shore of said river.” By an indenture between the plaintiff and Bennoclc, made the same day, Bennoclc conveyed to Hammatt the rights reserved in his deed to Smyth, The other facts appear sufficiently in the opinion of the Court,</p> <p>At the trial before Siiepkey J. the counsel for the defendants requested the Judge to instruct the jury, that if the defendants, in the removal of the sluice, acted with due care and caution, and did no unnecessary injury to the sluice, and that their acts were necessary to the enjoyment of their rights of property, that this action could not bejmaintained against them for a temporary displacement of the sluice, for the purposes aforesaid. The Judge declined to give the instruction requested, and instructed the jury, that the action on the first count could not be maintained; that if the defendants did displace said sluice and remove the same from the spot where the plaintiff had placed it, they were trespassers, and the action was maintained; that if they were authorized, for the purpose of erecting their mills, to occasion a temporary obstruction of the plaintiff’s rights, or were not answerable in this form of action for such damages, had the same been seasonably replaced, or had notice been given to the plaintiff or his agent, that the same could have been replaced, that their neglect to do either would make them answerable in this action, and that the plaintiff would be entitled to recover, not only the value of the materials removed, if the sluice had been taken and carried away as alleged, but also such injury as the plaintiff had sustained from not being able to use the sluice, from the time it was broken up, to the time of the commencement of this action, if the use thereof was destroyed by the acts of the defendants, and not by the canal. The verdict was for the plaintiff, and the defendants excepted.</p> <p>argued that the amendment could not be allowed. As the declaration stood, there was no cause of action, and the amendment is the very substance of the writ. BennocJc’s reservation, in the deed to the defendants, was of a mere easement. The plaintiff claims only under this, and cannot maintain trespass, quare clausum, for the interruption of this easement. Hasty v. Johnson, 3 Green!. 282; Thompson v. Andros-coggin Bridge, 5 Greenh 62. The record of the process, on the plaintiff’s complaint for damage by the Canal Company, should have been permitted to be read. It would have shown that the plaintiff had recovered his damages of others. The instruction requested should have been given. At or near, in the reservation, implies that we have the right to remove the sluice to another place. We were entitled to the enjoyment of our rights, if the plaintiff was put to some inconvenience thereby. 2 Conn. B. 529; 2 Esp. N. P. 639. The instruction given was erroneous. 3 Starlc. Ev. 1437; 4 Mass. R. 266 ; 9 Johns. R. Í 08. In this action of trespass, no damages could be recovered, in consequence of the neglect of the defendants to replace the sluice.</p> <p>said, that much of the argument for the defendants, had gone upon the ground, that the verdict was on tbe first count, when it was only on tbe count dc bonis aspor-tatis, and that to so much he should not reply. The amendment was rightly allowed. 3 Greenl. 183; 1 Fide. 158. By the terms at or near, in the reservation, the election is given to tile jdaintiff, to remove his sluice, but not to the defendants. But even if the election was given to the defendants, still they are trespassers, as the removal was without notice to us. The instruction requested, had relation to a mere hypothetical case, not warranted by any evidence given on the trial, and was therefore properly withheld. 2 Fairf. 350. The instructions wore correct. The sluice was carried away and destroyed, not merely removed to another place. The rule of damages, given to the jury, was correct. White v. Moseley, 8 Pide. 35G.</p>

Assujmpsit on a special contract by which the plaintiffs agreed to cut and split for the defendant 600 cords of wood, at 75 cents per cord ; and the defendant promised to pay the plaintiffs one half in April, 1836, and the other half in May, 1836. The writ was dated and served May 31, 1836.

<p>The action was by the plaintiffs, as indorsees of a note, dated May 4, 1835, signed by the defendant, payable in one year, to E. S. Smith, or order, and indorsed in blank by them, and by Levi Cram, and by Cram, Dutton & Co. The note was negotiated to the plaintiffs by Levi Cram, eight or ten months before it became payable, without any knowledge by the plaintiffs of the consideration on which it was given, “ in payment of a debt long before that time due from said Cram to the plaintiffs.” It appeared in evidence, the plaintiffs objecting to the admission thereof that the note in suit was taken hy Cram in part payment of the consideration mentioned in a deed of warranty from Cram to the defendant, dated the same day of the note, conveying to him a tract of land. Before this conveyance was made, Cram had mortgaged the same land to one Lewis to secure the payment of notes to him to an amount exceeding one half the consideration of the deed from Cram to the defendant, and before the trial the defendant had paid Lewis towards removing the incumbrance an amount exceeding the note in suit.</p> <p>At the trial, Shepley J. directed the jury to return a verdict for the plaintiffs. The verdict for the plaintiffs was to be set aside, if the action could not be maintained upon such testimony as was properly admissible.</p> <p>contended, that the same defence might be made to the note, as if it had still remained in the hands of the payee. To preclude such defence, the indor-see must take the note in the usual course of trade, and must pay money, or part with value for it at the time it is received. When a creditor receives a negotiable note in payment of a precedent debt, he takes it subject to all the equities between the original parties, and not as a bona fide purchaser for value. 20 Johns. R. 637; 9 Wend. 170; 10 id. 85, as directly in point; 12 Wend. 246; 13 ib. 570; ib. 605. The testimony objected to was admissible, and furnished a good defence to the note. Á total failure of title to the land, which was the consideration of the note, may be given in evidence to defeat an action for the consideration money; and so may a partial failure pro tanto. Rice v. Goddard, 14 Pick. 293; Dickinson v. Hall, 14 Pick. 217; 11 Conn. R. 432. And where the note is indorsed, this defence may be given in evidence without filing in set-off. Peabody v. Peters, 5 Pick. 1.</p> <p>contended, that the note was taken in the regular course of business, in the actual discharge and payment of a debt, and the plaintiffs are as much holders for value, as if they had loaned money or sold goods to the amount. If there was a defence against the note in the hands of the payee, there can be none when indorsed, as this was. Bailey on Bills, 439; Tucker v. Smith, 4 Greenl. 415. Even in Neiu-York, where a note is received in payment of a note paid and cancelled thereby, it is held for value. 20 Johns. R. 637, cited for the defendants. In New-York, the receiving of another note for a preexisting debt is not a payment of it, and the original security remains and may be enforced. 2 Johns. Cases, 71, 438 ; 5 Johns. R. 68. But even there they seem inclined to abandon the doctrine. 16 Wend. 659. But the cases cited for the defendants, have no application here, because by our law, the reception of the note by the plaintiffs was a full and complete discharge and payment of their precedent debt. The evidence objected to was inadmissible, not only because the plaintiffs were indorsees for value before the note fell due, but because if the suit had been between the original parties, still no defence would have been furnished by it. Lloyd v. Jewell, 1 Greenl. 352; Howard v. Witham, 2 Greenl. 390; Knapp v. Lee, 3 Pick. 452. The case cited for the defendant from 14 Pick. Rice v. Goddard, is full against them, that a partial failure of title gives no defence. Here the land passed by the deed, and there was merely an incumbrance upon it. The only remedy was on the covenants of the deed. Smith v. Sinclair, 15 Mass. R. 171.</p>

Assumpsit by the plaintiffs, as indorsees, against the defendants, as indorsers of a promissory note, made by William Smyth to them or order, and indorsed by them and by L. Cram, and by Cram, Dutton & Co., dated May 4, 1835, and payable in one year from date. To prove a demand upon the maker and notice to the defendants, the plaintifls offered a copy of the notarial records of Mr. Starrett, who died before the trial, certified by the clerk of the court of the county.

<p>Assumpsit to recover compensation for the plaintiff’s services in teaching a school ten weeks, in district No. 15, in the town of Hampden, but composed partly of inhabitants of Hampden, and partly of inhabitants of Newburgh, of which towns Hampden was the oldest. The plaintiff had been duly contracted with, by the legal agent of the district, to teach the school; had procured the requisite certificates, and commenced teaching the school. After he had kept the school about two weeks, complaint was made to two of the three superintending school committee, the other member of the committee being absent from town, and not being notified of any of the proceedings, and taking no part therein, and those two members of the committee visited the school, and examined it and the master, and found him, as they said, unfit, and verbally discharged and dismissed him; and, in a few days afterwards, made and signed a written statement to the same effect, and caused it to be delivered to the plaintiff. The agent of the district, knowing all the facts, immediately made a new contract with the plaintiff to teach the school, and directed him to proceed, and he did go on and complete the original contract.</p> <p>At the trial before Shepley J. the plaintiff’s counsel contended, that two of the committee could not legally act and dismiss the master. The Judge ruled that they could, to which the plaintiff filed exceptions. Several other questions were raised at the trial, and argued to the court, but are omitted, because the opinion is based on this, alone.</p> <p>argued that the acts of the two members of the committee were void, because the third was not notified of their meeting or proceedings. The whole committee must act in all affairs between individuals, to make their decision binding; and although, in public affairs, a majority can act in some cases, no act of the majority can be legal, unless the whole were notified, and bad an opportunity to act on tho subject. Commonwealth v. Ipswich, 2 Pick. 70 ; 1 Bos. & P. 236 ; 2 Kent, 293, 633 ; Towne v. Jaquith, 6 Mass. It. 46 ; 6 Johns. R. 39; 2 JVend. 491 ; 5 Bintmj, 485; 9 Serg. & JL 99; 7 Serg. & R. 444; Stat. 1834, c. 129; Searsmont v. Harwell, 3 Greenl. 450.</p> <p>contended, that the powers of the superintending school committee, like those of selectmen of towns, may bo exercised by a majority, and that it was not expected, or intended that all should be present to make the acts of the majority valid. The case of Searsmont v. Harwell, cited for tho plaintiffj is directly in our favor. But here the third member of the committee was out of town, and there was no committee to act, except those who did act. They had the samo power, as they would have had, if the third had been dead.</p>

This was an action to recover damages sustained in November, 1835, by the plaintiff, while passing along a public street in Bangor; by reason, as he alleged, of the negligence of the defendants. There was no special averment in the declaration of the expense incurred by medical attendance and nursing.

<p>This was a writ of review. The original action was assumpsit by Stood against Henry Scott, Jacob G. Remide and Daniel Remide, as partners doing business in’ the name of Scott & Rem-ide. A motion was made to dismiss the writ of review, and overruled by the Judge, at the trial, but was not noticed in the argument or decided by the Court. The original plaintiff introduced testimony for the purpose of showing, that the three defendants were partners, and with other evidence proved, without objection being made, the declarations of Scott, that the three were partners. The original plaintiff then “ offered to prove the partnership, as alleged, by testimony of general refutation.” Objection was made, and Sheplett J. before whom the trial was, refused to admit it. Blood filed exceptions.</p> <p>This case was argued at the June Term, 183T, but the opinion was not received by the Reporter until May 1, 1840.</p> <p>argued, that testimony of general reputation was admissible to prove a partnership on principle, from public policy, and on authority; and cited Whitney v. Sterling, 14 Johns. R. 215; and Qowen v. Jackson, 20 Johns. R. 17 6.</p> <p>controverted those positions, and contended, that the evidence offered was inadmissible. He cited 3 Stark. R. 53 ; 1 M. & Sehv. 686; 1 Stark, on Ev. 61; 14 East, 323 ; 13 East, 321; 3 T. R. 723 ; Whitney v. Ferris, 10 Johns. R. 66.</p>

<p>Assumpsit, declaring on a writing of which a copy follows.</p> <p>“ Bangor, July 31, 1835.</p> <p>“ I hereby obligate myself to pay to A. C. Smith and A. G. Currier fifty cents per acre for a lot of land bonded to me by them, provided said land is sold by me, and fifteen dollars for the whole if it is not sold. “ Benj. Richards.”</p> <p>On the trial before Shepcev J. the plaintiffs offered in evidence the deposition of one Stiles, which was objected to as proving the contents of a written instrument. To remove this objection the plaintiffs read an affidavit of one of them to prove the loss of the bond from one Jordan to the plaintiffs mentioned in the deposition, and which the deponent testified, had once been given by the plaintiffs to the defendant, and by him returned to them. The Judge admitted so much of the deposition as proved the fact that such bond had been given and returned, but excluded so much as went to prove the contents of the bond. Jordan was called by the plaintiffs, who testified, that they were to give him fifty cents advance per acre by a written contract between them which was cancelled and destroyed when the plaintiffs gave him a draft on the defendant, and that the defendant had told him he had sold the land, and that lie and another person had made $1600 on it; that ho was present when the plaintiffs asked the defendant, if he was going to take the land, and he replied that he should; and that he received his pay of fifty cents an acre from the plaintiffs by their draft or order on the defendant, and by him accepted and paid. To the testimony of Jordan, the defendant objected, but it was admitted. The exceptions state, that the defendant read in evidence a bond from one Hopkins to the witness, Jordan, and a draft drawn by tbo plaintiffs on the defendant, and by the defendant accepted, but the contents thereof do not appear in the exceptions. It seemed to be admitted on the argument, that the draft amounted to exactly fifty cents an acre for the quantity of land bonded. The defendant’s counsel then proposed to prove, that at the time of his accepting the order, he was advised that it would be a payment of the sum due to the plaintiffs on the contract declared on, and that he accepted it, declaring it to be for such purpose, neither of the plaintiffs being present. This testimony was rejected. The jury were instructed, that if they were satisfied from tire testimony, that the order was drawn and accepted in discharge of the contract declared on, they should find a verdict for the defendant. If they were satisfied, that the order was drawn for the purpose of designating the proportion of the money to be paid by the defendant to Jordan from that proportion of it to bo paid to Hopkins, and that the defendant so understood it, then the payment being made to discharge a different contract from the one declared on, they should find in favor of the plaintiffs; and that in examining the testimony they might call to mind the language of the paper declared on, where it speaks of a “ lot of land bonded to me by them.” ' The verdict was for the plaintiffs. The defendant excepted to the admission of the testimony objected to, and to the rejection of the testimony offered, and to the instructions of the Judge to the jury. There was also a motion to set aside the verdict as against evidence.</p> <p>That all the contracts are to be construed together. Davlin v. Hill, 2 Fairf. 435. The paper declared on was cancelled, and ceased to be obligatory on the defendant on the surrender by the defendant to the plaintiffs of the bond of the same date. Staclc-yjole v. Arnold, 11 Mass. R. 27 ; Kimball v. Morrill, 4 Greenl. 368; Haven v. Brown, 7 Greenl. 421; Wilson v. Hanson, 3 Fairf. 58. The evidence offered by the defendant and rejected, should have been received, on the ground of its being a payment. The defendant has a right to direct the appropriation. 2 Strange, 1194; 2 Caines, 99; 8 Caines, 14. It should have been received as a part of the res gesta. Pool v. Bridges, 4 Pick. 378; Carter v. Gregory, 8 Pick. 65; Allen v. Duncan, 11 Pick. 308 ; Milford v. Bellingham, 16 Mass. B. 108; Kim-ball v. Morrill, 4 Greenl. 368. He also argued, that the instructions given were erroneous, and that a new trial should be granted, because the verdict was against evidence.</p> <p>said the case was merely this. Hopkins, owning the land, gave a bond of it to Jordan at $3 an acre, Jordan assigned this bond to the plaintiffs, at $3,50 an acre, and they sold and assigned the bond to the defendant, at $4, the acre. The defendant then sold and assigned the bond to a third person at an advance, and received of him all above $3 per acre, and the purchaser gave up the bond to Hopkins, and took a title directly from him. The defendant then has his own profit, and that of the plaintiffs, and of Jordan, and now seeks to make the sum due to Jordan pay both him and the plaintiffs. The course taken by the Judge is too clearly correct to require either argument or authority to support it.</p>

The case came before the Court on a statement of facts. The petitioner claimed the fee of an undivided half of the land described in the petition. The respondents contended, that the land was conveyed by tbe petitioner to them in fee, and that an easement only was reserved to himself. The material parts of the deed are given in the opinion of the Court.

The only question was, whether the company should be charged on their answers, from which it appeared, that the defendant had insured at the office of the defendants, a quantity of potatoes against the perils of the sea, “ and all other losses and misfortunes which have or shall coñac to the damage of the said potatoes or any part thereof to which assurers are liable by the rules and customs of assurances in Bangor, provided, that the said assurers shall not be liable for…

<p>The officer's return of an extent on land is fatally defective, and no title passes thereby, if it do not substantially state, that the appraisers were disinterested and discreet men, and freeholders within the County. And the mere return of “ all of whom being reputable freeholders,” is not a compliance with the requirements of the statute.</p> <p>The Court, in the exercise of their discretionary power to grant leave to amend, declined to permit an amendment, to remedy the defects, after the lapse of twenty-six years.</p>

Tiíe action was covenant broken, upon a duplicate lease under seal and executed by the parties, dated August 12, 1833. By the lease, the defendant was to occupy a house of the plaintiffs’ in Bangor, for the term of one year from date, paying a certain rent therefor in quarterly payments. The substance of the pleadings are stated in the opinion of the Court.

<p>A contract made by one of five members of a committee; chosen by a parish to build a church, in the name of the whole, is not binding on the corporation.</p> <p>And as such contract cannot be enforced against the corporation, the other party is not bound by it.</p> <p>A contract in writing made afterwards, and before the work was finished, with such other party by individual members of the corporation, wherein they agree to secure to him the payment of the amount of his contract, according to its terms, one half when he shall have completed the work, and the balance in sixty days thereafter, is not a collateral but an original promise. The labor performed in completing the work, is a sufficient consideration to sustain the promise.</p> <p>Where a contract has reference to another paper for its terms, the effect is the same, as if the words of the paper referred to, wore inserted in the contract.</p> <p>Although the work may not bo performed strictly within the time and according to the terms of the contract, yet if it he done under the eye of one of those contracting to pay therefor, and be accepted by those for whose benefit it was done, and for whom they acted in making the contract, it is a waiver of strict performance, and payment must be made in conformity with the contract.</p> <p>Any irregularity in the action is waived hy a general submission thereof by rule of Court.</p>

<p>This was a special action on the case brought to recover damages against the Land Agent of the State, for not assigning and conveying to tbe plaintiff five lots of land, agreeably to a resolve in favor of certain revolutionary officers and soldiers, March 17,1835. The parties agreed, that the townships specified in the resolve, were actually surveyed by the deputy surveyor, Dec. 3, 1835; the return of the plan and field notes was made by tbe deputy to the Surveyor General, Dec. 23, 1835 ; and by him examined and returned into the land office in Augusta, Jan. 1, 1836. The plaintiff had become the assignee of five certificates, granted by the Land Agent pursuant to that resolve, and on Dec. 12, 1835, gave the defendant written notice of the assignment of the certificates to him, and that he had selected certain lots described, and requested that a conveyance thereof might be made to him, and filed the notices in the land office at Bangor. At this time the plaintiff was informed by the Surveyor General, that no return of the survey of the township had been made to him. No selection of any lots had been previously made, nor had there been any assignment of the public lots. The defendant denied the right to make the selection at that time, and refused to make the conveyance. A nonsuit or default was to be entered by the agreement, as the opinion of the Court should be.</p> <p>cited the resolve of March 17, 1835, in favor of certain officers and soldiers of the revolutionary war; stat. 1828, c. 393; stat. 1824, c. 280 ; and contended, that the plaintiff had a right to make the selection of his lots on the 12th of December, 1835; and that the Land Agent was bound by law to make the conveyance of those lots to the plaintiff. The law provides, that the selection of the lots may be made when the lots are surveyed and laid out. This was done. It was not necessary, that the plan should first be made, and returned into the land office. The survey and plan are different things. JRipley v. Berry, 5 Greenl. 24.</p> <p>and Hodgdon, pro se, contended, that the township could not be considered as surveyed and laid out, as the law requires, until all power of the Surveyor General over the survey was gone by a return into the land office. No selection of lots could legally be made until this was done, and until the public lots had been selected, as the law requires. These very lots might have been selected as the public lots. The Agent would have violated his duty, to have suffered this attempt of the plaintiff, in fraud of the rights of others, to have been successful.</p>

<p>Exceptions from the Court of Common Pleas, Pebham J. presiding.</p> <p>Assumpsit for boomage of logs, asserted to belong to the defendants. The writ was dated, December 21, 1835, the action was entered at January term, 1836, and continued to October term following, when the defendants called for the right of the attorneys acting for the corporation to appear and act therefor. The Judge ruled, that it was unnecessary. The action came on for trial at January term, 1837, when the general issue was pleaded, and a brief statement was filed, denying the existence of the corporation then or at any time; alleging that the charter by and under which the plaintiffs claimed a corporate existence had been forfeited by non user; that there had been no organization under the same; that it was dissolved by a total loss of all its members ; and that it had never complied with the provisions of the act of its incorporation by a total neglect to choose any officers under said act. To support the action, the act incorporating the Penobscot Boom Corporation, February 13, 1832, Spec. Daws, c. 236 ; a bill of sale from Rufus Dwinal, named in the act, to Samuel Veazie, dated February 17, 1832, conveying one half of the charter, booms, and property ; and another bill of sale from Dwinal to Veazie, dated April 1, 1833, conveying the other half; were introduced. Also, a book called and offered as the records of the corporation, but not - verified by the oath of any one ; “ to the sufficiency of which, to prove the organization, as well as to the introduction of all the testimony offered by plaintiff, the defendants’ counsel objected. The objection was overruled, and a part of the book was read to the jury. The defendants’ counsel having called for the records.” The charter and the bills of sale were copied into this book, and the following vote appeared therein. “ Bangor, April 2, 1833. 1, Samuel Veazie, being the only owner of the Penobscot Boom Corporation, have this day had a meeting of said corporation at my house, and appointed myself to the office of President of said corporation, and clerk of said meeting, with full powers to make all records, and to transact all business that may be necessary for carrying said corporation into full effect, and to receive and collect all tolls that may be due from time to time, and pay all bills against said corporation, and to continue until some person is chosen or appointed in my stead. A true record. Attest, Samuel Veazie, Clerk.” The plaintiff then proved, that the logs were surveyed ia the boom by Davis and Young, sealers, appointed by the Surveyor General of the county of Penobscot, under the statute of March 2, 1833, Spec. Laws, c. 373. Young also testified, that he took charge of the boom in the spring of 1833, and had retained it since; that a large amount had been expended on the boom by Veazie; and that the witness is the general agent of Veazie at Oldtown, and drew on him for money and paid him money received for boomage, and knew nothing of the corporation of his own knowledge. It was proved that the boom was erected in the spring of 1832, under the direction of Dwinal, and has been in operation ever since. The defendants requested the Court to order a nonsuit, but the Judge refused. The defendants then proved, that the boom, when full, prevented the free passage of rafts and logs. The counsel for the defendants, requested the Judge to instruct the jury, that there was no such corporation as alleged ; that there was no vote or direction of the Penobscot Boom Corporation, at any regular meeting of the corporation, authorizing the erection of the boom; and that the action was not maintainable. The Judge did not thus instruct them, but directed them to inquire, if the evidence submitted to them proved the existence of such a corporation as is named in the writ; and if not, they would return a verdict for the defendants. But if such corporation had been proved, it not being denied, that the sum claimed in this action was due, if the contents of the logs had been legally ascertained, they .would find for the plaintiff They were also directed to inquire, if the boom had been erected and continued by authority of .¿e Pe-noiscot Boom Corporation. The jury returned a verdict for the plaintiff, and being inquired of at the request of the counsel for the defendants, stated that they found the boom to have been erected and continued by the authority of the Penobscot Boom Corporation. The defendants excepted.</p> <p>argued in support of the grounds taken at the trial. They contended, that the defendants might show that the plaintiff had no corporate existence, either under the general issue, or by plea in abatement. But here the non-existence appears from the plaintiffs’ own showing, and when that appears to the Court from its own evidence, it is a fatal defect at any time. They cited on this point, 19 Johns. R. 300; 2 Coiven, 378; 11 Mass. R. 25, 119; 5 Pick. 238; 14 Mass. R. 240; 1 B. & P. 43; 1 Sound. 340; 6 JSÍ. H. Rep. 199: 4 Peters, 480 ; Angel &f Ames on Corp. 382; 6 Wheat. 260; 16 Mass. R. 245; 3 Fair/. 15; 1 Bane, 464, sec. 25; 7 Conn. R. 219; 3 Mass. R. 364 ; 8 Pick. 90 ; 4 Burr. 2200; 3 T. R. 240. This is neither a corporation sole nor aggregate. Not sole, because the charter was to Dwinal and his associates, mere private persons. And is not aggregate corporation, because it has not the powers of one and has not organized as such. 1 Bac. Ab. Corp. A; Angel & Ames, 19, 275; 10 Mass. R. 91; 5 Mass. R. 362; 10 Mass. R. 343 ; 14 Mass. R. 132. That the lumber should have been surveyed, in the manner pointed out by the statute, as a prerequisite to the plaintiff’s right to recover. The persons who surveyed the logs, were not appointed by the “ Surveyor General of Bangor,” as the charter prescribes, and they were scalers, and not surveyors. 7 Greenl. 480; 17 Mass. R. 258 ; American Jurist, No. 26, 379. The books were improperly admitted in evidence. 6 Binney, 416; 14 Mass. R. 180.</p> <p>The party waives all right to call for power of the counsel to appear, unless the call is made the first term. C. C. Pleas Rule, 6. This is a mere discretionary act, and not the subject of exceptions. 3 Greenl. 216. And there is no difference in this respect, between corporations and individuals. 9 Wheat. 738. The legal existence of the plaintiffs, as a corporation, cannot be denied, but by plea in abatement. 3 Fairf. 382; 4 Mason, 436; 1 Sumner, 578; 1 Peters, 450; 10 Mass. R. 91, 361; 3 Wend. 291; 12 Wheat. 64; 7 Pick. 371. The defendants have treated the plaintiffs as a corporation in contracting a debt to them, and if is too late to deny it, when called on for payment. 8 Greenl. 365; 2 Fairf. 227. No advantage can be taken of any non user in a collateral action. It is a business solely between the corporation and the State. When the charter is taken away from them, all duties, as well as all powers cease. 2 Kent, 312; 5 Johns. Ch. R. 366; 6 B. & Cr. 703; 9 Crunch, 51; 8 Wend. 652; 4 Paige, 481; 5 Mass. R. 230 ; 4 Gill & Johns. 121; 6 Cowen, 23; 1 Hall,' 198. A solemn vote of the corporation to that effect will not dissolve it. 14 Pick. 68. The survey was in the manner provided by law, and that is all the charter could have intended. The reference in it was to an act, not in existence, and which never did exist in name, though it did in substance. 7 Greenl. 474. If a party calls for books, he makes them evidence. 1 Carr. & Payne, 8 ; 5 Esp. R. 235; 4 jEsp. R. 21.</p>

Exceptions from the Court of Common Pleas, Periiam J. presiding. The same questions were raised in this case, as in the preceding action. In this case, which was assumpsit on an account annexed for boomage of logs, in addition to the facts in that case, the plaintiff moved for leave to file a count for money had and received. This was opposed by the defendant, but permitted by the Court.

ExceptioNs from the Court of Common Pleas, Pee,ham. J. presiding. The distinction between this case and that of same plaintiffs v. Lamson, ante p. 224, will be sufficiently understood from the opinion of the Court. and cited Taft v. Montague, 14 Mass. 2?. 282. said, that the demand sued for, and that for which a set-off is claimed, are entirely distinct, and relate to different descriptions of logs, coming to the boom, at a different time.

Exceptions from the Court of Common Picas, Perham J. presiding. The main questions in this case were similar to those between the same plaintiff and Lamson, antep. 224. The facts bearing upon the objection to the admission of testimony, arc stated in the opinion of the Court. The exceptions make this statement in regard to the writ.

<p>The temporary residence of a citizen, liable to do militia duty, in a town wherein he is not domiciled, merely for the purpose of attending school, does not subject him-to enrolment in that town, or to the performance of militia duty therein.</p>

Exceptions from the Court of Common Pleas, Peiuiam J. presiding. The indictment, the license, and the instructions of the Judge to the jury appear in the opinion of this Court. Atkins &f Walker to whom license was granted, kept a store in one street attended by themselves, and also kept another store in another street attended by the respondent, Stephen Walker. The counsel for Stephen Walker requested the Judge to instruct the jury: — 1.

<p>The general rule is, that lands hounded upon rivers or streams of water extend to the thread of the stream, unless the description he such as to show a different intention.</p> <p>And if land be described in the grant as extending from a road northerly e< to the margin of the cow, thence westerly along the margin of the cove about eleven rodsf and thence southerly to the road ; the land granted extends but to the edge of the water and lire flats are not included.</p>

<p>The plaintiffs brought the action as indorsees of a bill of exchange, drawn and dated at Bangor, July 2, 1835, payable in six months after date, by Reed & Edwards on Tyler Reed 8f Co. of Boston, in favor of Daniel S. Jones and Joseph J. Bigelow, and by them indorsed. The material facts in the case appear in the opinion of the Court. There was also a motion for a new trial, because the verdict was against evidence.</p> <p>and in the course of their argument, cited Chitty on Bills, 213; Bayley on Bills, 283 ; 3 Campb. 262 ; 2 Stark, on Ev. 270 ; IIill v. Var-rell, 3 Greenl. 233; 13 Johns. 11. 432 ; Whittier v. Graffam, 3 Greenl. 82; 8 Pick. 251 ; IQ Pick. 392; 1 Wend. 376; 6 Wend. 436; 8 />. & Cr. 387; 4 Car. & P. 522 ; Doug. 679; 7 East, 231; 3 Barn. 8f Aid. 619; 3 Car. & P. 522 ; Chitty on Bills, (8th Am. Ed.) 592; 7 llalst. 268 ; 3 Gill & Johns. 474; 1 Stark. R. 314; Groton v. Dallheim, 6 Greenl. 476; 4 Leigh, 37; 4 M. & S. 49; 12 East, 433.</p> <p>and cited 10 Mass. R. 1 ; Bayley on Bills, (Ph. & S. Ed.) 280, 284,516; 12 Pick. 484; Atwood v. Clark, 2 Greenl. 249 ; 1 Pick. 401, 413; 1 N. II. Rep. 240 ; 2 Stark. Ev. 255, and cases there cited ; 2 Johns. R. 273; 3 Kent, 1Ó7; 2 Caines, 121; 1 Johns. R. 294 ; 2 Peters, 96.</p>

<p>Where a creditor obtained judgment against his debtor, and had part satisfaction of his execution, returned by an officer, by sale of a personal chattel of a third person, who brought an action against the officer and recovered the value thereof; and the creditor, during the pendency of that suit, recovered a new judgment for the balance of his execution, left unsatisfied, in action oj' debt, and obtained satisfaction of that judgment; and after the recovery against the officer, brought scire facias on the first judgment to have execution for the amount thus returned satisfied on the first execution; it was held, that the scire facias could not be sustained.</p>

Exceptions from the Court of Common Pleas, Perham J. presiding. The declaration contained but one count, for money had and received.

On the disclosure of trustees. Messrs Chandler & Paine, being summoned as trustees of Joseph Staples, disclosed that before the service of the writ they had collected for him of Jedediah Varney a sum of money, which they had not paid over; but that before tbe service they had accepted an order drawn on them by the defendant in the words following. “ Bangor, March 15, 1837.

PieRce was brought into Court on a writ of habeas corpus. It appeared that Pierce had been summoned to appear before two Justices of the Peace and of the quorum for this county, to give his deposition in perpetuara, at the request of one Fiske, who had an interest in the subject matter of his testimony, which was a question proper for judicial investigation in a civil process, but in relation to which no suit was pending.

<p>Whore a nonsuit was ordered, but to be taken off if the defendant should come in on the first day of the succeeding term and be ready for trial, and where it was eventually taken oil' and the action tried; it was held, that the action was so pending, after tile nonsuit was th us ordered and before it was taken oft', that a deposition might be taken in the action during the time.</p> <p>Objections that questions are leading, should be taken at the time the deposition is taken, or they will be considered as waived, and cannot be made at the trial.</p>

ExceptioNS from the Court of Common Pleas, Perham J. presiding. The action was on a bill drawn by Sabin Pond & Co. on Charles Ramsdell, which was accepted by him, and indorsed by the defendant for the accommodation of Ramsdell, dated January 25, 1836, and made payable at the Suffolk Bank in Boston, in ninety days from date. It was said in the argument, that the parties to the bill lived in Bangor, but the exceptions did not show where their place of residence was.

ExceptioNS from the Court of Common Pleas, Periiam J. presiding. Assumpsit against Weston, Hobart, Mayo, Rolles and Smyth, described as trustees of “ The Bangor & Lower Stillwater Mill Company,” on an instrument alleged to liave been signed by them by S. Peabody, their agent, in the following terms. “Orono, March 11, 1836.

EXCEPTIONS from the Court of Common Pleas, Pebham J. presiding. The action was trespass for taking and carrying away two yards of broadcloth. When the action was commenced, the writ was in form an original summons, and property was attached thereon.

<p>Where a writ was dated November 25,1836, and was made returnable to the Court of Common Pleas next to be holden at B, within and for the county of P, which court was by a general law to be holden on the first Tuesday of January in each year ; and where the defendant appeared at the first term, and did not object for that cause until the third term; it was held, that the court had power to permit an amendment of the writ by inserting on which Tuesday of the month and in what month of the year the court was holden.</p>

<p>EXCEPTIONS from'the Court of Common Pleas, Periiam J. presiding.</p> <p>This was a petition filed under the provisions of the stat. 1821, c. 159, “ securing to mechanics and others, payment for their labor and materials expended in erecting and repairing houses and other buildings with their appurtenances,” setting forth a contract made by the respondents, Lewis, Bigelow &f Wadleigh, on one part, and the petitioners on the other part, for the erection of certain mills. The petition was dated Dec, 29, 1836, was entered at Jan. Term, 1837, continued until Oct. Term, 1837, and a motion was then made to dismiss the petition, because the act had been repealed. The motion was denied. The petitioners then read a contract, not under seal, purporting to bo made between the petitioners and respondents, but signed by the petitioners and Lewis only, dated March 8, 1836, and recorded August 23,1836. The respondents objected to the admission of this contract in evidence, but the objection was overruled. The petitioners then offered parol evidence to show that this was the contract of the other two respondents, to which objection was made. The objection was overruled, and the evidence was received. The exceptions then give a list of seven different instruments with their dates, but they were not made a part of the exceptions, and are no part of the case in this Court, in the list one was named as an assignment by Lewis of a mortgage to him by Dexter E. Wadleigh, another respondent, of two thirds of the premises to Isaac Hatch, which was to be made a part of the case, but no copy appears. The respondents were in the exclusive possession of the premises when the contract was made, and until the time of trial. Hatch appeared and filed an answer in which he alleged a right under the mortgage prior to the contract, and objected to a sale under this petition. The petitioners objected to the right of Hatch to appear, but the objection was overruled. There was evidence offered by the petitioners, which they contended proved, that the land was held under such circumstances, that Hatch was not entitled to a priority. The substance of this testimony appears in the opinion of the Court. Immediately preceding the instructions of the Judge, there is found stated, that “ the respondents objected to the introduction of any evidence to prove a trust by parol.” Hatch and Wise knew of the erection of the mills, and there rvas no evidence that they made any objection to such erection.</p> <p>The Judge instructed the jury, that if they found that the contract was made in writing and recorded, though not signed by all the respondents, and that they all went on, ratified, confirmed and adopted it, and that they accepted the mills and received the benefit of the contract, and were equally interested in it, they cannot now object, that it was not signed by all; that if the respondents, or either of them, were proprietors of the land at the time the contract was made, the petitioner’s lien would attach to the land ; that if they did not have the entire interest, then the lien would attach only to the extent of this interest, but if they had no interest in the land, and Match had shown a good title to it, the petition could not be maintained; that if they found, that the conveyances to Hatch were made in bad faith to defeat this lien, and were fraudulent, his claim could not be interposed to defeat this petition. The respondents then requested the Judge to instruct the jury, that Hatch’s knowledge of the pendency of this petition could not affect his title; that neither of the respondents having any legal title in the premises at the time the contract was made, or at the time this petition was filed, the petition cannot be sustained; that if they found there was a contract between Wise and Lewis for the conveyance of the land and that said contract was forfeited, or that the conveyances to and from Hatch were not in pursuance of said contract, they would find for the respondents. The Judge did not give these instructions, but left the jury to inquire into the character of the conveyance under which Hatch claimed, as appeared from the whole evidence, and to return specially, whether it was in good faith, or colorable and fraudulent. The jury returned a verdict for the petitioners, and answered, that “ Hatches title was not made in good faith.” The respondents filed exceptions.</p> <p>The case was argued in writing, by A. W. Paine, for the respondents, and by Washburn, for the petitioners.</p> <p>For the respondents, it was contended : —</p> <p>1. That the petition in this case, being founded on the stat. 1821, c. 159, which was afterwards repealed, by stat. 1837, c. 273, on the same subject, without any saving clause, the petition cannot be any longer sustained. Therefore the motion to dismiss the petition was improperly overruled. The principle seems to be fully sustained by authorities, that any right which depends for its existence upon the provisions of any statute, can exist no longer than the statute giving the right. Thayer v. Seavy, 2 Fairf 284; 4 Yeates, 392; Springfield v. Hampden Co. 6 Pick. 501 ; 5 Crunch, 281 ; 6 Crunch, 203; 1 Wash. Cir. C. Hep. 84; 1. Black. Rep. 451. The act is constitutional. Jt is not an ex post facto law. 3 Dallas, 388 ; 1 Kent's Com. 408. Nor is it a law impairing the obligation of contracts. McCullock v. Maryland, 4 Wheat. 316; 2 Fairf. 290; 12 Wheat. 213; 6 Pick. 501; 2 Peters, 413.</p> <p>2. The contract was admissible, as also was the evidence to prove it the contract of all the respondents. It will not be denied as a general principle, that parol evidence is inadmissible to control, vary, or explain a written contract. An exception to this rule is, where there is a dormant partner who shares in the profits of a contract mado by the active partner, there the law will construe the signature of the active partner to be that of the firm, and will hold both to the performance of the contract. But this case does not come within that exception. In support of the proposition, and to show how far the principle should extend, ho cited 11 Mass. R. 27; 2 Mmf 330; 3 Wash. C. C. Rep. 508; 13 Wend. 85.</p> <p>3. The statute makes it necessary, that the contractors should be owners of the land, having the whole title. Here the whole title was indisputably in Wise, who is not alleged to be a contract- or. Thaxter v. Williams, 14 Pick. 49; 12 Mass. R. 325. That the rights of parties must be judged of as they existed at the time of bringing the action, is too plain a principle of law to need the citation of authorities.</p> <p>4. The instruction was incorrect, that Hatch’s claim could not be interposed to defeat this petition, if made in bad faith. The fraud, if any, was practised after the action was brought, and had no effect to take the property out of the way of creditors. The transaction was wholly between Wise and Hatch, and neither of them was creditor or debtor of cither petitioners or respondents.</p> <p>5. The parol evidence introduced was improperly admitted. It went to prove a trust by parol. Smith v. Dane, 3 Pick. 205.</p> <p>G. The third instruction requested, ought to have been given. The only title which either of the respondents had to the land was a contract to convey on certain conditions, which had been forfeited by them. They certainly had no interest in the land, and had nothing which could be attached.</p> <p>7. The first requested instruction should have been given. The title being in fact in Wise, Hatch was not bound to take notice of any incumbrance from any other person who-had not the title.</p> <p>For the petitioners, it was contended : —</p> <p>1. That the act of 1837, c. 273, did not repeal the statute on which this proceeding is founded. The stat. of 1837, does not in terms repeal the former statute, but only such parts as are inconsistent with its provisions, and the remedies are merely cumulative, and more beneficial to mechanics than the former statute. Where two statutes may stand together, the former is not repealed. The repugnancy must be manifest or there is no repeal. Procter v. Newhall, 17 Mass. R. 92; Wales v. Stetson, 2 Mass. R. 146; 14 Mass. R. 92; 1 Pick. 254; 3 Mass. R. 221; ib. 539. The statute of 1837, cannot act on liens which had attached at the time of its passage, under the earlier statute, especially if process was then pending to enforce the lien. No principle of law is better established, than the principle that vested rights cannot be impaired or disturbed, however much remedies may be changed or modified. If the statute operates as an absolute, entire and unqualified repeal of the former statute, it is unconstitutional and void. Not only it cannot thus operate, but the act of 1837 was not intended by the legislature, and does not purport to repeal the former act, so far as it respects liens then created. He commented upon the authorities cited for the respondents, and insisted that they did not conflict with this view.</p> <p>2. The contract was made in the name of all, and was signed by one for all the respondents, and under the finding of the jury is binding on all. It is not necessary that the signing should be such as would satisfy the statute of frauds. But here there was enough to satisfy even that. The one who signed was authorized to sign for all, and his acts too were subsequently ratified. And neither the previous authority or subsequent ratification need be in writing. Cleaves v. Foss, 4 Greenl. 1 ; Alna v. Plummer, ib. 258 ; Vin. Abr. Tit. Con. and Agree’t, (H) 45; 3 Woodeson’s Lee. 427; Rob. on Frauds, 113, and notes; Shaw v. Nudd, 8 Pick. 9; 12 -Johns. It. 112; 1 Sch. & Lef. 22; 2 T. R. 188. The evidence was rightly admitted for the purposes for which it was introduced.</p> <p>3. The respondents were proprietors of the land in such manner, that the lion of the petitioners attached to it. 4 Kent, 305 ; Barrel v. Joy, 16 Mass. R. 221; Northampton Bank v. Whiting, 12 Mass. R. 112; Jenney v. Alden, ib. 375 ; 15 Mass. R. 218; 16 Mass. 11. 221; 1 Johns. R. 45; 1 Johns. Ch. R. 153; 3 Johns. R. 216; 11 Johns. R. 91; 13 Johns. R. 463; 13 Maine R. (1 Shepl.) 352; 2 J31. Corn. 337; 4 Kent, 302; 3 Burr. 1898; 4 Mason, 349 ; 14 Pick. 54; 3 Mass. R. 253 ; 9 Mass. R. 34; 11 Mass. R. 153; 7 Greenl. 96; 4 Mass. R. 566; 1 Coke, 576, notes; Perk. 372; Cro. Eliz. 503 ; Prest. Est. 546.</p> <p>4. The objection that the respondents were not owners, cannot be taken by them, or by Hatch. 1 Fairf. 383 ; 6 Greenl. 243 ; 2 Greenl. 226; 4 Kent, 38; 1 Caines, 185; 2 Johns. R. 119.</p> <p>5. There was no error in the instructions given, or in refusing to give those requested. But at all events justice has been done, and the verdict will not be set aside. 13 Maine R. 59 ; 1 Mass. R. 237; 7 Greenl. 442; ib. 141; 4 T. R. 468.</p> <p>6. The facts in the case, cited from 14 Pick. 49, are so different from the facts of this, that it is no authority for the respondents. Here there is nothing to give validity to the fraudulent acts of Wise and Hatch, and like others of the same character, they are void.</p>

ExceptioNS from the Court of Common Pleas, Perham J. presiding. Assumpsit on an order, of which this is a copy. “ Argyle, October 14, 1835. To Nathaniel Danforth, Treasurer of thei plantation of Argyle.

<p>In an action on a bond with a penalty, judgment is rendered lor the amount of the penalty, and execution issues for all damages sustained at the time of the rendition of judgment.</p> <p>Where the defendant conveyed to the plaintiff by deed of warranty certain land, then incumbered by a mortgage and by an attachment of the equity, and at the same time gave a bond with a surety, that he would “ within ninety days cause said mortgage deed to be cancelled, and all other incum-brances to be removed from said land, as by his deed he had covenanted and where the incumbrances had not been removed by either party at the time judgment was rendered for the penalty, in an action on the bond commenced after the ninety days had expired, but the mortgagee had entered into the actual possession of the premises under a judgment on the uiovtgáge, and the equity of redemption had been sold for a large sum; it was heid} that execution should issue for the amount of the conditional judgment on the mortgage and the amount for which the equity sold, and interest on those two sums.</p>

<p>Exceptions from the Court of Common Pleas, Redington J. presiding.</p> <p>Assumpsit against Benjamin Greene, Lawrence Greene, and Augustine G. Greene, on an account annexed to the writ containing a large number of items. The delivery of all the articles, charged to Lawrence Greene, was proved on the trial, excepting one item of $22. On motion of the plaintiffs, they were permitted to strke this from their account, the defendants objecting thereto.</p> <p>The plaintiffs introduced evidence to prove the existence of a copartnership between the defendants, and as part of it, the record of a judgment, Fiske & ah. v. the same defendants, founded on two notes alleged to be signed by them as copartners. They did not appear, and the action was defaulted. This was objected to by the defendants, but admitted by the Judge.</p> <p>One of the defendants was originally named in the writ Augustus-, and during the trial, the plaintiffs moved for leave to amend by substituting Augustine for Augustus, which was objected to by the defendants, and permitted by the Court. The verdict was for the plaintiffs, and the defendants filed exceptions.</p> <p>The case was submitted without argument, by Garnsey, for the plaintiffs, and by G. G. Cushman, for defendants.</p>

<p>ExceptioNS from the Court of Common Pleas, Perham J. presiding.</p> <p>The action was for labor done in building a house, and materials furnished therefor. There were three defendants, R. R. and Romulus Haskins, and Jotliam Parsons. The declaration originally was on an account annexed to the writ, and after the trial had commenced, the plaintiff, by leave of Court, the defendants objecting thereto, amended his writ by adding a quantum meruit for the same items. The defence set up was, that the work was done by the plaintiff for Parsons alone, under a written agreement, and that the Haskins were not interested in it. The plaintiff, with a great variety of other evidence on the trial, introduced the testimony of certain master builders, who bad examined the house and made an estimate of the expense of erecting such a house as that was. To this evidence the defendants objected, but the Court admitted it. It was shown on the trial, that the defendants were partners in trade, and that Parsons occupied one part of the house and the Haskins the other. Evidence tending to show the abandonment of the written contract by the parties ; that the materials were to be charged, and the work to be charged by the day ; and that the Haskins, were jointly interested in the house, and contracted with the plaintiff jointly with Parsons; and also evidence to the contrary, was introduced, and all submitted to the jury.</p> <p>The counsel for the defendants requested the Judge to instruct the jury, that if the contract between Tebbetts and Parsons was thrown aside, the Haskins are not liable, unless after such dissolution of the contract they expressly agreed and contracted to do it by the day ; that no implied contract could arise in this case as to the Haskins; and that the measure of damage is the contract price of the building with the real value of the alterations. The Judge instructed the jury, that if the Messrs. Haskins were not interested jointly with Parsons in the building of the house, they would not be liable unless they expressly made themselves so; but if they were jointly interested in the house with Parsons, and had the benefit of it, they would be jointly liable, unless the work was done under special contract; that if the contract was abandoned by the parties, it would furnish no regulation for the price of the work done subsequently ; that if they found for the plaintiff, the amount of damages must be settled by the evidence, of which the jury were the judges ; and that if they should find that the contract between Tebbetts and Parsons had been abandoned by them, and that the two Haskins were interested in the building, they would find for the plaintiff, but if both or either of the Haskins were not so interested, then they would find for the defendants, as the action could not be sustained against the defendants, unless they were all jointly liable.</p> <p>The verdict was for the plaintiff, and the defendants filed exceptions.</p> <p>argued in support of the several grounds taken at the trial, and contended, that the instructions given did not cover the requests, and were erroneous. To show that the testimony of the master builders was improperly admitted, he cited 7 Verm. Rep. 158; 6 N. 11. Rep. 462; 16 Wend. 587 ; 1 Stark. Ev. 389. That the plaintiff cannot say now, that this part of his evidence is wholly immaterial, and so may be rejected. 16 Pick. 567 ; 14 Pick. 520; 2 Hall, 40. That tho contract price was the true measure of damage, making a proportionable allowance, where the contract had been departed from. 16 Wend. 589; 13 Wend. 276 ; 3 Stark. Ev. 1761.</p> <p>said, that the jury have found that the contract had been given up by consent of parties, and in this case, is to be considered as if it had never been made. The evidence of the value of the work from those who had seen it, and were most competent to judge of its value, is not only proper evidence, but the best the nature of the case admits. The work was done for all the defendants, and they must pay for it.</p>

This action, debt on a bond dated July 13, 1836, was submitted on an agreed statement of facts. The defendants, with the general issue, filed a brief statement, stating that Wheeler being under arrest on the execution, was unlawfully required to give the bond declared on, and that to procure his release, the bond was given.

<p>In an indictment against several, they are not of right entitled to be tried separately, but are to be tried in that manner only, when the court from sufficient cause shall so order it.</p> <p>In the trial of an indictment for larceny, a witness from whom the property is charged to have been stolen, is not bound to disclose the names of persons in his employment, who gave the information which induced him to take measures for the detection of the persons indicted.</p> <p>Where several persons are proved to have been associated together for the same illegal purpose, any act or declaration of one of the parties in reference to the common object and forming a part of the res gesta, may be given in evidence against the others.</p> <p>A demurrer to evidence is considered an antiquated, unusual and inconvenient practice, and is allowed or denied by the Court, where the indictment or cause is tried, in the exercise of a sound discretion, under all the circumstances of the ease.</p>

Exceptions from the Court of Common Pleas, Perham J. presiding'. Trespass quart; clausum for taking down and carrying away the plaintiff’s fence. The defendant justified, that the fences were upon a town way and a private way, and that as surveyor of highways be removed them. The bill of exceptions states the evidence, and divers requests for instructions, but does not show, whether any ruling was made, or instructions given or withheld, or whether any verdict was rendered.

ExceptioNS from the Court of Common Pleas, Pebham J. presiding. The kind of action and the facts in relation to the point on which the decision was founded, appear in the opinion of the Court. The notices are thus stated in the exceptions. “ The evidence of James Stubbs, that on the 17th of May, 1836, he gave notice to Joseph It.

Exceptioks from the Court of Common Pleas, Peiuiam J. presiding. The action was assumpsit. The plaintiffs offered the deposition of James Godfrey, to the admission of which the defendants objected, as improperly taken, which appears from the caption. The objection was overruled. The deponent lived without the State, and the deposition was taken by dedimus. The caption was thus, “ Bristol, ss. December 25, 1837.

On June 30, 1837, (S'. & JE7. Smith, the appellants, presented their petition to the Judge of Probate, representing that Marcia Dutton, the Ad-ministratrix of Samuel E. Dutton, deceased, in her account of administration, allowed by the Judge of Probate in April of the same year, had charged, and was allowed, several items, which the petitioners averred had not been paid by said Maicia, and ought not to be allowed in her said account, nor is the estate legally chargeable with…

Exceptions from the Court of Common Pleas, Peeham J. presiding. ■ The action was assumpsit, and the declaration contained two counts. 1. On an account annexed to the writ, charging the defendant with two shares in the Bangor & Dexter Stage Company. 2. Money had and received.

<p>Exceptioss from the Court of Common Pleas, Peru am J. presiding.</p> <p>Assumpsit on a note payable to the plaintiff or order in 60 days, dated May 28, 1835. The defence set up was, that the note was obtained by fraudulent and false representations. It was proved, that tbe note was given in part payment of the consideration for the assignment of a bond from one David Haynes and others to the plaintifij conditioned to convey a tract of land within ninety days, on payment of a certain sum. Tbe defendants offered in evidence a certificate of one Jameson, stating the quantity of timber there was upon tbe laud, and alleged that it was false, and known to the plaintiff at the time to be false, and that it was used by the plaintiff to defraud the defendants. To its admission the plaintiff objected. The Judge did not then admit it, but after the introduction of certain evidence, stated in the opinion of the Court, be did admit tbe paper, and directed tbe jury, that if they were not satisfied, that it bad been used to induce the defendants to make the purchase, from the proof, together with the circumstances of the paper having been in tbe possession of the plaintiff a short time before tbe sale of the bond, and in a few days after in the bands of tbe defendants, it would not be evidence in tbe case. Tbe plaintiff’s counsel requested the Judge to instruct the jury, that if the note was obtained by false pretences, it was the duty of the defendants to return and restore the bond assigned, before its expiration.- The Judge did not give such instructions but did instruct them, that the defendants were not bound so to do, unless they had ascertained, that the statements were false and fraudulent before the expiration of the bond. The verdict being for the defendants, the plaintiff filed exceptions.</p> <p>The Court ought not to have permitted the certificate to go to the jury, until the defendants had shown, that it had been used to induce them to purchase the bond. And this question was to be decided by the Court, and not left to the jury. 5 Amer. Com. L. 183, and cases there cited. Improper testimony ought not to be suffered to go to the. jury, and it is not sufficient, afterwards, to direct the jury not to regard it. Penfield v. Carpenter, 13 Johns. R. 350; Irvine v. Cools, 15 Johns. R. 239. To suffer improper evidence to go to the jury, with instructions to disregard it unless certain other facts are proved, is transferring the duties and responsibilities of the Court to the jury, and depriving the other party of all remedy, if the jury decide wrong. The best evidence to show the inducement should have been produced, for fraud is not to be presumed. Here was no evidence whatever, and the paper was improperly before the jury. 4 Mass. R. 646 ; 5 Mass. R. 305 ; 1 Peters, 596 ; 19 Johns. R. 345. The Judge should have instructed as requested, that if the defendants would rescind the contract, they should have returned, or offered to return the bond. 4 Mass. R. 502; 15 Mass. R. 319.-</p> <p>insisted, that the argument for the plaintiff was mainly founded on an erroneous view of the facts. The paper was not permitted to be read to the jury, until sufficient evidence had been introduced to warrant the jury in inferring that it had been used in the fraud. If the testimony had a reasonable tendency to prove the issue it is sufficient. 2 H. Bl. 296 ; 3 Johns. R. 235; 2 Day, 205. The jury have found, that the fraud had not been discovered by the defendants, until after the time limited in the bond had expired. It was then mere waste paper, of no value to any one, and it could not be necessary to go through the useless form of returning it.</p>

ExceptioNS from the Court of Common Pleas, Pebham J. presiding. Assumpsit against Estes, Rollins, Webster, &f Heald on an instrument of which the following is a copy. “ 1$ 83,44. Orono, April 10, 1836. For value received, we promise to pay to Stephen Jennings, or order, tbe sum of eighty-three dollars and forty-four cents, to be paid in the month of July next, and interest. “Rollins, Estes, Webster & Heald, “By Jefferson Heald.” Heald and Webster were defaulted.

<p>In an action to recover damages for the loss of a building by fire, occasioned by the negligence of the defendant, the testimony of witnesses offered on his part “ that he was very careful with fire, that they never discovered any carelessness in him about talcing care of his fires during the time they were at his house, which was immediately before the fire,” is inadmissible.</p>

<p>The action was covenant broken on a lease, and the defendant, with the general issue, pleaded by brief statement performance generally. It does not appear that there was any replication. The lease was dated Sept. 10, 1830, wherein tile defendant leased to the plaintiff, and his heirs, executors, administrators and assigns, a building at the west end of the bridge in the village of Bangor, with the lot of land belonging to the same and the wharf thereon, for the term of five years, commencing Nov. 1, 1830. One of the covenants on the part of Wheeler was, that the building should not be used for purposes usually denominated extra hazardous as to fire by insurance companies. At the close of the lease was this provision. “ And the parties aforesaid for themselves respectively, each with the other and their respective heirs, executors and administrators do further covenant and agree as follows, viz. that the said Wheeler may at his own expense, repair, alter and improve said building in such manner as shall be most for his interest, but that all fixtures he may make to the premises during said term shall remain and become the property of said Hill, at the end of said term, without any charge for the same — that if said Mill shall make an actual and bona fide sale of the premises during said term, this lease shall expire after two years from this date, but in such case, said Hill shall pay said Wheeler for all betterments which he shall have made on the premises.” The plaintiff introduced evidence tending to prove, that after the execution of the lease he made alterations and improvements in the building; that May 2, 1831, he leased a part of the premises, including the cellar, to Hasty Sf Huntress, for one or five years, from Nov. 1, 1830, the parties mutually agreeing that Hasty & Huntress might at their own expense, repair, alter and improve the premises for their interest and benefit, to become the property of Wheeler without any charge for the same, but that if Wheeler did not hold the premises for the whole five years, the lease should expire after two years, and in such case Wheeler should pay them for all better-ments they should make on the premises ; that Hasty & Huntress made expensive improvements, which were fixtures, and which greatly increased the rents of the same. The plaintiff read in evidence a deed of the premises from the defendant to Samuel Smith, dated Dec. 22, 1832, and an obligation from Smith to Hill of the same date, stipulating that Smith should have all after rents and indemnify Hill against all claims in consequence of the lease. The defendant then introduced evidence tending to show, that the expenditures thus made on the building were calculated to produce an increase of rent, and that were the building to remain for a scries of years in the state in which it was put by the expenditures, the property would be increased in value equal to the value of the expenditures, but that the alterations made, did not increase the value of the property in the market. In the spring of 1833, the building was removed by Smith, against the wishes of the tenants. There was evidence introduced by defendant tending to prove, that certain mechanics, and among them a plane maker, had occupied parts of the premises during a portion of the time, and that those employments were “ usually denominated extra hazardous as to fire by insurance companies.” There was some testimony, that at some time an entry had been made for breach of covenants for non-payment of rent. The defendant offered to read a process of forcible entry and detainer, dated Dec. 13, 1832, instituted by him against one Burr, the occupant of the collar under Hasty &f Huntress, to which Burr had appeared and pleaded the general issue, but no judgment had been rendered therein ; and offered to prove by the counsel for Burr, that bo was instructed by Burr to defend the suit, and that the process was instituted, and possession claimed for an alleged forfeiture of Wheeler’s lease by the appropriation of a part of the premises to uses denominated extra hazardous in contravention of the covenants in the lease from Hill to Wheeler. The counsel for the plaintiff objected to the admission of the process and the testimony of Burr’s statements to his counsel, and they were excluded by the Judge. The defendant then read in evidence, the proceedings in a suit Hasty & Huntress v. Wheeler, and the judgment in their favor, for $478.</p> <p>The trial was before Emuiiy J. and the report concludes in the following manner. For the purpose of reserving certain questions of law for the consideration of the full Court, by agreement of the parties, the jury were requested to answer the following inquiries. What was the value of the betterments of the premises made by Isaac Wheeler ? They answer $101,60. What was the value of those made by Huntress & Hasty 1 The jury answered $487,68. Were the premises used by Wheeler or his assigns for purposes usually denominated extra hazardous as to fire by insurance companies ? They answered, we could not find any. To the question, was there any entry made by Hill or Smith for the broach of the covenants for the non-payment of rent ? the jury answered, we have no proof of it. To the question, to what time the interest was calculated ? the jury answered, we unanimously agreed to calculate it for four years and an half back of this time. There was much evidence introduced to the jury as to the nature, character, extent and value of the improvements. And the Court instructed the jury, that if from the evidence they were satisfied, that the expenditures by Wheeler and Hasty & Huntress, were such as men of prudence and good judgment would have made on the premises in contemplation of the use of the property as authorized by the lease, and that they did in fact add such an amount to the value of the building, supposing it should remain there, they might consider the damages recovered in that judgment Hasty & Huntress against the plaintiff as prima facie evidence of the amount of the betterments made by Hasty & Huntress. The verdict is taken however subject to the opinion of the whole Court, who may amend or set aside said verdict, or render judgment thereon as they may see fit.</p> <p>argued, that the provisions in the lease extending to assigns related merely to the use of the building, as it was, and the rent to be paid for it, but the agreements in relation to the betterments were between the parties themselves, and did not extend to assigns ; and the defendant therefore is not compellable to pay for improvements made by assigns. He has not so agreed, and on the agreement only can he recover. The alterations made by Hasty fy Huntress were such as the plaintiff himself was not authorized to make. If the improvements were recoverable, the judgment was not prima facie the amount of betterments. 1 Phil. Ev. 248; 1 Stark. Ev. 186. Because it was between other parties, was the finding of another jury on other proof, and on evidence not given to the jury in this ease. Hasty v. Wheeler, 3 Fairf. 434. There has been a forfeiture of the estate, and therefore the plaintiff cannot maintain his suit; because the building was used for purposes usually denominated extra hazardous as to fire in contravention of the agreement, and because the acts of Hasty & Huntress amounted to waste. Jacob’s Law Die. Waste. Where the landlord is entitled to enter for a forfeiture, it is not necessary to prove an actual entry. 1 Saund. 287-, note 16.</p> <p>1. That the mere process of forcible entry and detainer, without a judgment rendered thereon, was not admissible in evidence. 1 Stark. Ev. 245, 280; 2 Johns. R. 46, 181 ; 7 Johns. R. 32.</p> <p>2. The declarations of Barr were inadmissible, because mere hearsay; and because confidential communications of a client to his counsel; and because irrelative.</p> <p>3. Judgment was rightly rendered for damages found for Hasty & Huntress'’ improvements. The lease is to assigns, but the letting of a part of them by Wheeler, was not an assignment, but a mere underletting. 6 Coiven, 302; 8 Wend. 175; Swett v. Patrick, 3 Fair/. 9.</p> <p>4. The instructions were correct. They were substantially the same as was decided in Hasty v. Wheeler, 3 Fairf 434. The defendant introduced the judgment in that case, and he has no right to complain that it was used for the only purpose it could be. But it was to be considered by the instruction, only prima facie evidence in case they found the value of the betterments to be equal to the amount recovered in that suit. That those improvements did not amount to waste, was decided in the case cited, Hasty v. Wheeler. The jury have found, that the building was not used for purposes considered extra hazardous as to fire, and that objection is not founded in fact.</p>

This was a writ of error, to reverse a judgment of a Justice of the Pe'ace, in an action brought by Mudgett, as clerk of a company of militia, against Rollins, to recover a fine for neglecting to appear at a company training.

This was a writ of entry. All the facts which the papers in the case furnish are found in the opinion of the Court. When the demandants introduced the original warrant, dated in 1771, and their records, to show their organization as proprietors, the tenant objected that there was no evidence, that the proprietors were notified as required by the warrant. Weston C. J. presiding at the trial, ruled, that after such a lapse of time such notice was to he presumed.

Teespass quarc clausum, for an alleged trespass in cutting trees on lots numbered 53, 54, and 55, in township No. 18, granted to tbe proprietors of certain land prizes, drawn in virtue of the act of Massachusetts, passed Nov. 9, 1786, establishing a land lottery, and another act in addition thereto, passed June 20, 1788, which township has not yet been incorporated as a town or plantation.

<p>Where a sum of money was paid by tho debtor to the judgment creditor, while the execution was in the hands of an officer, and directed to be allowed thereon but was not indorsed; and the debtor was afterwards arrested on the execution, and gave bond in double the amount of the whole execution and officer’s fees; in ascertaining tho amount due in a suit upon tho bond, the sum thus paid, is to be regarded as a payment made at tho time it was received.</p> <p>The attorney in the original suit, having a lien for his costs which were included in the amount for which the bond was given, may receive payment of the debtor after the giving of the bond, and give a valid discharge for tho amount.</p> <p>Where there has been a payment and acceptance of tho full amount equitably due on the bond, before a suit was commenced thereon for the penalty, the action cannot he maintained.</p>

Tkespass quare clausum, for cutting and taking away tbe plaintiff’s grass. The facts in relation to tbe title of the respective parties by deed appear in the opinion of the Court. Jones entered into possession within twenty years under his mortgage, by judgment of Court, and foreclosed the same, and the defendant had the title of Jones.

Exceptions from the Court of Common Pleas, Perham J. presiding. The whole bill of exceptions follows. “ This action is trover and conversion of twelve cords of wood, tried on the general issue. The plaintiff, to prove the issue on his part, introduced several depositions, tending to show he purchased a lot of wood; and that the defendant’s boys were seen with his team hauling some of it away.

Assumpsit on an account annexed to the writ. One item in the account was for “ boarding men twelve weeks and three days, $37,50 — Keeping six oxen one night, $1,50 — Keeping horse four nights, $1,25.” The defendant filed an account in set-off one item of which was “ pair oxen pr agreement, $100;” another, “ use of oxen, $40.” The plaintiff with much other evidence, offered a writing signed by the defendant, and marked B, of which the following is a copy. “ Mr. Nathaniel Lamb.

<p>Mem. Weston C. J. having been detained in the trial of jury causes in the county of Washington, was not present at the arguments in this county.</p> <p>The service of a writ upon a manufacturing corporation, by leaving an attested copy thereof and of the return thereon, with the clerk of such manufacturing corporation, thirty days before the day of the sitting of the Court, to which the same writ shall be returnable, is a good service.</p>

This was a bill in equity, brought against the judgment creditors who extended their execution against one Blaisdell on his land, and against tbe officer who made the extent, by the purchasers of Blaisdell’s right to redeem the land.

These were actions brought by the County of Penobscot to recover the penalty for obstructing the free passage of salmon, shad and alewives in the Penobscot Bay and River, and the streams emptying into the same, contrary to the provisions of the statute of 1835, c. 194. The defendants demurred to the declaration in each case, and the plaintiffs joined in demurrer. The defects for which the declaration was held bad will be seen in the opinion of the Court.

In a writ of entry, the demandant to prove his title, gave in evidence a judgment at the July Term of this Court, 1832, in which he recovered against the tenant the demanded premises. Subsequently the demandant brought an action in the Common Pleas, for the mesne profits of the land, which action with other matters was submitted to referees by rule of Court.

Assumpsit for relief furnished to one Samuel Calef, alleged to have had at the time a settlement in Lincolnville. Notice was given by the plaintiffs to the defendants, Nov. 20, 1833. The relief was furnished from Oct. 19 to Nov. 30, 1833. And the suit was commenced Nov. 4, 1835. The general issue only was pleaded.

At the trial, before Weston C. J. a nonsuit was entered by consent; and if the opinion of the Court should be, that the action could be maintained, the nonsuit was to be set aside, and the action stand for trial. The facts in the case appear in the opinion of the Court. The case was submitted without argument, by Hutchinson, for the plaintiff, merely citing Knight v. Norton, 15 Maine R. 337 ; and by Rogers, for the defendants.

This was a petition for partition, wherein the petitioner claimed an undivided moiety of the land described in the petition, by virtue of a conveyance to him by Abner Knight, by deed dated July 19, 1819, conveying to him an undivided moiety of a tract of land of which the premises are part. The respondent denied the seizin of the petitioner.

This was an action of covenant broken, against Simeon Tyler, Ephraim Wood and Joseph Jones, wherein the plaintiff alleged, that the defendants, by their deed dated Oct. 1, 1833, conveyed all their right, title and interest in and to certain real estate in Camden, particularly described, and in the same deed, covenanted among other things, “ that they would warrant and forever defend the premises, so conveyed as aforesaid, to him the said William Carleton, his heirs and…

<p>Assumpsit for rent, and also on an obligation in the following form. “Lincolnville, Feb. 16, 1837. For a valuable consideration, I promise Samuel A. Whitney, to be responsible to him lor whatever sum he may recover of Ezelciel Stearns, before David, Alden, Jr., John Young, 2d. and David McKoy, referees, to whom is referred a demand made by the said Whitney against the said Ezelciel Stea7-ns and Moses Stearns.” This was signed by the defendant. This action was commenced on May 27, 1837, and on the sixth of the same May, the plaintiff caused Ezelciel Stearns to be arrested on an execution issued on a judgment on the award of the referees, who on the same day gave a bond, pursuant to the provisions in the acts for the relief of poor debtors, to procure his release from arrest. The said Ezelciel failed to comply with the conditions of this bond and it became forfeited, and Nov. 24, 1837, Whitney commenced an action thereon, which is still pending. At the trial of the present action before WestoN C, J. the plaintiff offered no evidence of any consideration to support the agreement other than the instrument itself.</p> <p>The defendant’s counsel objected, “ 1. That the instrument declared on, being a collateral undertaking to answer for the debt or default of another, it was incumbent on the plaintiff to prove a sufficient consideration ; and that the instrument itself, not importing a consideration like negotiable paper, the mere words, “ for a valuable consideration,” were not sufficient to prove the fact. 2. That the plaintiff having received a bond as security for the original debt, and the condition of that bond being forfeited and having become absolute, the above instrument being of an inferior nature to the one under seal, was merged in the bond; and that the plaintiff baying accepted of said security by bringing an action upon it, the original debt was also merged in that security, and by necessary consequence, the present instrument, which was only collateral to the original debt.”</p> <p>The Chief Justice left the question of consideration to the jury, stating to them, that the admission by the defendant in the contract that it was made for a valuable consideration, was evidence of that fact to be submitted to their consideration. The second objection taken was overruled, and the jury were instructed, that the collateral remedy pursued by the plaintiff on the bond, would not defeat his action on the contract, he not having obtained satisfaction upon the bond. The verdict for the plaintiff was to be amended by deducting the amount found on account of the contract, if in the opinion of the Court, the jury were not properly instructed upon either point taken by the counsel for the defendant.</p> <p>argued in supr port of the propositions contended for at the trial. On the first point, they cited Ten Eyck v. Vanderpool, 8 Johns. R. 120; Schoonmáker v. Roosa, 17 Johns. It. 301; Hunt v. Adams, 5 Mass. R. 358; Ulen v. Kittredge, 7 Mass. R. 233; Lent v. Fadelford, 10 Mass. R. 230; Packard v. Richardson, 17 Mass. R. 122. The whole evidence was on the face of the paper, and it was a mere question of law, and should have been decided by the Court, and not left to the jury.</p> <p>argued, that it was for the jury to determine whether there was a sufficient consideration for the promise; that it was a mere matter of evidence ; and that here was the best of evidence, the admission of the defendant in writing. The testimony of a witness, that he had heard the defendant admit that there was a consideration, would have been competent evidence for the jury, and still more clearly is his written admission. The promise here was prospective, to pay the debt of another, which might, or might not exist, and was not a collateral but an original undertaking. Perley v. Spring, 12 Mass. R. 297. If the change of security had taken place between the parties, there might have been some color for contending, that one security was merged in the other, but the merger does not extend to change of security against a stranger. But here there was no forfeiture of the bond at the time this suit was commenced. 5 Mass. Jt. 11; 6 T. R. 176; 10 Mass. R. 88; 3 East, 258; Chitty on Contracts, 294.</p>

<p>Since the stat. 1835, c. 195, for the relief of poor debtors, the body of a debtor cannot be legally arrested on a writ declaring on a contract, unless the creditor, or his agent or attorney, first make oath that he has reason to believe and does believe, that the debtor “ is about to depart and establish his residence beyond the limits of this State, with property or means exceeding the amount required for his own immediate support.”</p> <p>And if the affidavit do not state, that the debtor “ was about to depart and establish his residence beyond the limits of this State,” and the officer having such writ, return thereon, that he has arrested the body of the debtor, and that he gave bail, and afterwards refused to deliver up any bail bond to the creditor on demand, or to return it to the clerk’s office, no action can be maintained by the creditor against the officer for that cause.</p>

ExceptioNS from the Court of Common Pleas, Perham J. presiding. Assumpsit on a note of hand, dated August 22, 1885, for $1575,75, payable to Benjamin Carr or order, in one year from date, and by him indorsed, “ without recourse.” The exceptions, without stating the evidence, or that any bad been offered, after the description of the note, proceed to state, “ that the defendants contended, that the transaction out of which the note originated was fraudulent.

ExceptioNS from the Court of Common Pleas, Perham J. presiding. Trespass on the case against Hall, as late Sheriff of the county, for the default of Spencer Arnold, one of his deputies. With the general issue the defendant filed a brief statement, setting forth that the cause of action did not accrue to the plaintiff at any time within four years next before the commencement of the suit.

<p>Where: the, proprietor of land, overflowed by a dam owned by different persons, proceeded by separate complaints, and recovered a judgment for yearly damages against each owner of the dam for flowing different portions of the complainant’s land, and where afterwards one of the respondents becomes solo owner of the dam; if the proprietor of the land seek an increase of his yearly damages, he may combine the whole subject matter in one complaint against the then owner of the whole dam.</p>

Assumpsit for a balance of ^60,20, claimed of the defendants as owners of the schooner Folly, for a quantity of fish barrels. The charge in the account annexed to the writ was made to £l Schooner Folly and sharesmen,” and amounted, without tile credit, to $165,20. It was admitted that the defendants were owners of the schooner. Alexander C. Todd, master of the Folly, when the barrels were delivered, was called as a witness by the plaintiff, and objected to by the defendants.

This case came before the Court upon a statement of facts agreed by the parties. It was agreed, that so much of the statement as was founded on the testimony of French, one of the drawers of the draft in suit, should be excluded, if the Court should deem it inadmissible on objection made by the plaintiffs.

This was an action against Greely & French, as drawers of the same bill described in the case Waldo Bank v. Lambert & al., ante, p. 416, and was submitted on the same arguments, and on the same facts, with the exclusion of the testimony of French.

<p>ExceptxoNS from the Court of Common Pleas, Pebham J. presiding.</p> <p>Replevin for a pair of oxen. The defendant justified the taking of the oxen under an attachment of them by an officer, August 12, 1835, as the property of one Zenas Lothrop. The plaintiff proved by the same Zenas Lothrop, that he sold and delivered the oxen to the plaintiff in the fall of i 835, for sixty dollars, and that the plaintiff paid three dollars in cash, and gave his note for the residue. The plaintiff also proved, that the same oxen had been attached as the property of one Harding; that Zenas Lothrop had replevied them as his property; and that the return of the officer on the writ of replevin, shew that on August 11, 1835, he delivered the oxen to Zenas Lothrop in the county of Waldo. The defendant proved by the officer’s return, that the oxen were attached by James Cook, a deputy sheriff, in the county of Lincoln, August 12, 1835, as the property of Zenas Lothrop, at the suit of one Page, which suit was still pending when the present action was commenced. The only instruction or ruling of the Judge was, that the return of James Cook on the writ of Jesse Page against Zenas Lothrop and another on the twelfth day of August, 1835, was prima facie evidence of an attachment in the absence of evidence to rebut or control it, which would be valid until thirty days after judgment. No instruction was requested. The jury found, that the oxen were not the property of the plaintiff, and he filed exceptions.</p> <p>said, that he had heard of a rule that the return of an officer was in some cases conclusive, but never before that it was prima facie evidence. An officer cannot make an attachment, unless he can take the property into his possession at the time. Lane v. Jackson, 5 Mass. R. 163; Watson v. Todd, ib. 271; Vinton v. Bradford, 13 Mass. R. 114; Knap v. Sprague, 9 Mass. R. 258. The return must be false, because the oxen were then in the county of Waldo, where CooTc could not attach them. The false return of an officer cannot defeat a bona fide sale.</p> <p>said, an officer’s return was conclusive as to the facts contained in it, except in an action against him. Slayton v. Chester, 4 Mass. R. 478; Estabroolc v. Map-good, 10 Mass. R. 313; Bean v. ParTcer, 17 Mass. R. 591. The jury found that the oxen were not the property of the plaintiff, when he replevied them, and that is a sufficient defence.</p>

This was a scire facias by the administrator of the estate of Elizabeth Titcomb, the widow of Moses Titcomb, deceased, on whose estate Joseph Titcomb was administrator, to have execution against the estate of said Joseph, of whose will the defendant was executrix, for one half of a judgment recovered against the said Joseph, for delinquency as administrator. Plea, that there is no such record as the plaintiff has declared on, with a verification.

Debt on a bond given by the defendants to the plaintiff, dated March 11, 1835. The bond provided that the defendants should pay certain notes given by the plaintiff to a third person, payable at different stipulated times, and also pay certain notes payable at different times, given to the plaintiff by the defendants. The bond concluded thus. “ All which are to be paid according to the tenor of said notes respectively.

This action was to recover expenses for the support of Daniel Kelley, his wife and children, alleged to have their settlement in New-Gloucester; and the question at issue was, whether the settlement of the paupers was in that town ?

<p>An action against tlie defendant for having knowingly and wilfully made a false answer, when summoned as a trustee at the suit of the plaintifi on the stat. 1821, c. Cl, § 12, “ concerning foreign attachments,” is a penal action, and must, be brought within one year from the time the trustee was discharged by judgment of Court, or it will be barred by the stat. 1821, c. 62, sec. 14, limiting penal actions to one year.</p>

<p>Tile authority of an agent to act for a corporation, need not be proved by record or writing, but may be presumed from acts, and the general course of business.</p> <p>Whore by the uniform practice of an insurance company, a deviation from the risk assumed in the policy is waived by the President, for a compensation agreed upon by him and by the assured, and the waiver and assent with the terms thereof are written across the policy, without any new signature, and recorded by the secretary; a contract made in that manner, is binding upon the corporation.</p> <p>And after such contract has received the assent of the assured and of the President of the company, and has been written upon the policy, it is the act of the corporation, although the secretary may not record it upon the record book.</p> <p>Where the custom of an insurance company is to dispense with the signature of the assured to the premium note until after the policy is recorded, the omission to sign the note when the risk is taken, does not render the contract void from want of consideration.</p> <p>In an action on a policy of insurance, it is competent for a Judge at the trial, to permit an amendment of the declaration by adding a new count, varying from the original, only in the date of the policy declared on.</p>

Assumpsit by an indorsee against an indorser of a note. The same action was before tried, and a caso reserved for the opinion of the whole Court, is reported in 14 Maine Rep. 225. A copy of the note and of the indorsements thereon, as well as the facts then in evidence, appear there. The declaration in one count averred a demand and notice. On this trial there was evidence, which the plaintiff contended, proved a demand and notice, but which was controverted by the defendant.

<p>The words, “ we waive all notice on the promiser and indorsers, and guaranty the payment at all events,” written by the indorser of a note over his name, are a waiver of both demand and notice.</p> <p>The sale of a negotiable note, free from usury when made, at a greater discount than legal interest, is not conclusive evidence of usury, although the party making the sale is unconditionally liable by his indorsement.</p>

<p>Exceptions from the Court of Common Pleas, Whitman C. J. presiding.</p> <p>The action was assumpsit, on a written instrument, of which a copy follows. “ Shelburne, April 9, 1835. I hereby agree to give Mr. Alpheus Bean, a good and sufficient deed of six thousand acres of the common and undivided land in the town of Shelburne, county of Coos, in the State of N. H., provided he, the said Bean, shall give me satisfactory security for the same at twenty cents per acre, one fourth part down, and the remainder in three annual payments with interest annually ; this refusal not to run beyond sixty days from date, and this refusal shall be null and void after that time. BarJccr Burbank.”</p> <p>The plaintiff’s counsel in opening the cause to the jury, stated, that among other things, he should prove, that this action was commenced for the benefit of certain individuals, who, in a few days after the date of said agreement, purchased Bean’s interest therein, took an assignment thereof, and paid therefor the sum of twelve hundred dollars; and that they, before the expiration of the term of sixty days therein mentioned, tendered to the said Burbank, the sum of twelve hundred dollars in specie, and also tendered him one fourth part of said sum in cash, and satisfactory security for the remaining three quarters, payable in accordance with the terms of said agreement, neither of which said offers was accepted, but each of them was refused, and that the said Burbank refused to give a deed, anti assigned as a reason, that it was not in his power to do it. The plaintiff then offered to read to the jury, the agreement declared on. Whereupon the defendant’s counsel objected, that the contract or agreement offered in evidence was “ nudum, pactum, and void for want of consideration.” And the Judge who presided ruled accordingly and directed a nonsuit, to which the plaintiff excepted.</p> <p>contended, that the nonsuit was erroneously ordered, and cited Jacob’s Law Die. Consideration; stat. 1821, c. 53, sec. 1; stat. 1829, c. 431; 3 Burrow, 3663; 1 Dane, c. 1, art. 46, sec. 1, 2, 3, 4; Stanley v. Bruns. Hotel Cor. 13 Maine B,. 51; Atwood v. Cobb, 16 Mass. R. 227; G etched v. Jewett, 4 Greenl. 350; Barstow v. Gray, 3 Greenl. 409; Darrell v. Trussed, 4 Taunt. 117; Williams College v. Danforth, 12 Pick. 541 ; Coggs v. Barnard, 2 Ld. Jlaym. 909; 5 T. Jl, 150; 3 Powell on Con. 207.</p> <p>and cited Wilson v. Clements, 3 Mass. R. 1; 1 Saund. 210, and note; 2 Saund. 13, and note ; Oro. Eliz. 126; 7 T. R. 346, in note; 4 Johns. R. 280; Powell on Con. 331, 355 ; 1 Com. on Con. 13; 10 Johns. R. 246; 2 Johns. R. 442; 5 Johns. R. 272; Mills v. Wyman, 3 Pick. 207; Parish v. Stone, 14 Pick. 198; Hill v. Buckminster, 5 Pick. 391 ; Bowers v. Hurd, 10 Mass. R. 427 ; Cabot v. Haskins, 3 Pick. S3; Yeh. 134; 12 Johns. R, 90; ib. 397; Cooke v. Oxley, 3 T, R. 654.</p>

This was a writ of entry demanding a tract of land in Portland. Henry Dinsdell died intestate, seized of the demanded promises and of other land adjoining, prior to August, 1802. By proceedings in the Probate Court, the lot demanded was regularly assigned to the widow of the deceased as her dower in the estate, October 13, 1802, and she entered thereon and occupied it until her death, in 1835.

<p>Exceptions from the Court of Common Pleas, Whitman C. J. presiding.</p> <p>Assumpsit upon a note of hand, signed by the defendant, dated August 20, 1835, and payable to Barzillai Latham, or bearer, at the Casco Bank in Portland, in ninety days, for the sum of $406,50. The defendant rested his defence upon the ground, that the note was obtained by fraud, and was without consideration, and that the plaintiff was not an innocent holder of the note for a valuable consideration. To make out his defence, the defendant offered the deposition of one Hoyt, parts of which were objected to, but the whole was admitted. Among others of a similar character objected to, are the following question and answer. “ 10th int. Did or did not said Latham represent to you, that the signers of said certificates were fine and honest men, and had signed nothing but what was true and correct ? Answer by deponent. He did.” The defendant also offered evidence showing that the note in suit was one of several given as the consideration of the assignment of a bond from one Perkins to Latham, Bradley and Cush-man of the right to purchase on certain terms, an undivided portion of a certain No. 4, in an eighth range, and by the two latter assigned to Latham. To induce the deponent to make a purchase of the same land, certain certificates were exhibited by Latham to him, representing that there was a large quantity of valuable timber on the township, when in fact there was little timber or none, and the township was nearly worthless. The certificates were either intended by the makers to apply to another township No. 4, and were by Latham applied to this, or were false. There was testimony tending to show, that Perkins, Bradley and Cushman knew of the fraud, and were to share in the profits. This testimony was objected to by the plaintiff but admitted. The defendant introduced evidence tending to show, that these certificates had been shown to Hoyt and others to induce them to purchase the same land, which was objected to by the plaintiff, but admitted. There was no direct evidence that the plaintiff was induced to make the purchase by the exhibition of these certificates. There was some testimony creating suspicion, that the plaintiff was but the agent of Latham and others in bringing the suit, rather than proving the fact. The defendant here rested. The Judge ruled, that if it was made out, that there was fraud in the inception of the note, the burden of proof was on the plaintiff to show, that he came innocently by it and paid a fair consideration for it. The plaintiff objected, insisting that it was for the defendant to adduce evidence to show, that the plaintiff was not the innocent holder of the note for a valuable consideration. The objection was overruled. The plaintiff then introduced certain testimony for the purpose of showing that the note was indorsed to the plaintiff before it was due, and was his property.</p> <p>The Judge instructed the jury, that the note declared on having-been read to them, the plaintiff must be considered as having made out a good case prima fade; that if the defendant would avoid the note for fraud in obtaining it, he must make satisfactory proof of the fraud; that if they were satisfied, that a conspiracy had been formed in reference to the bond from Perkins, between La-tham, Cushman and Bradley, with an intention of defrauding some one, in such case, they would consider whatever either said or did, in furtherance of the object, as evidence against them all; that if Latham was set forward by the others for the purpose, and had designedly employed another person to aid him in deceiving the defendant, and had thereby imposed upon the defendant, and induced him to give the note in question without adequate consideration therefor, the note must be considered as void; unless the evidence in the case should satisfy them that the plaintiff was the innocent and bona fide holder of the note.</p> <p>The verdict was for the defendant, and the plaintiff filed exceptions.</p> <p>argued, that the testimony of Hoyt and others, that Latham had made fraudulent representations to them in respect to this land, was mere hearsay, and the relation of attempts to defraud others not communicated to the defendant, and therefore not admissible in evidence. 2 Stark. Ev. 470; Flagg v. Willington, 6 Greenl. 386; Somes v. Skinner, 16 Mass. JR. 348; Peake’s N. P. Cases, 95; 1 Car. 8/ P. 65. The same objection applies to the exhibition of the certificates. There is no proof that they were shown to the defendant, or that he had any knowledge of them. The declarations and conversations of La-tham, Cushman and Bradley, were improperly admitted. The decisions of the Judge in relation to the burthen of proof were erroneous. When it is shown that there was fraud in obtaining the note, it throws the burthen on the indorser to show, that the note came into his hands before it was due. This is sufficient for him. The plaintiff cannot prove a negative, that he did not know of the fraud, but the defendant is to prove that he had that knowledge. This is the extent of Munroe v. Cooper, in the 5th of Pick.</p> <p>and cited 3 Burr. 1516; 1 Camp. 100; 2 Campb. 574; Douglas, 633; 13 East, 134; 2 Car. & P. 606; Chitty on Bills, (8th Ed.) 652 ; 2 B. & Ad. 291; 2 Crompt. M. & N. 342; 1 Moody & M. 80; 5 Binn. 469; 10 Johns. R. 231; Munroe v. Cooper, 5 Pick. 412; 3 Kent, 79; Commonwealth v. Crowninshield, 10 Pick. 497; 3 Serg. & R. 320; 2 Stark. Eo. 402; Seaver v. Dingley, 4 Greenl. 306 ; McKenney v. Dingley, 4 Greenl. 172.</p>

<p>If the attesting witness to a promissory note be called, and does not prove the handwriting of tbe name to be his, it is competent to prove it by the testimony of other witnesses.</p> <p>The stat. of 1838, c. 343, in addition to the limitation act of 1821, extending to an indorsee the same right to sustain an action upon a negotiable note, attested by a witness or witnesses, after six years from the time the cause of action accrued, which is given to the original promisee by the tenth section of the stat. 1821, c. 62, applies to an action on a witnessed note held by an indorsee at the time the act of 1838 was passed.</p>

<p>Receipts are not in all cases conclusive; they afford prima facie evidence of what they purport to declare, but are subject to be overthrown by counter proof from the other party.</p>