Volume 17 — Maine Reports

<p>If a negotiable note, indorsed in blank by the payee, be lost by the indorsee, and he afterwards assigns to another his right thereto, the assignee cannot maintain an action at law in his own name upon such lost note.</p> <p>The thirty-third rule of Court, in relation to the denial of signatures in actions upon hills and notes, applies as well to those which are not produced at the trial, if there be a special count thereon, as to those produced.</p> <p>Mem. A part of the Cumberland cases of this term, were published in the last volume.</p>

This was a writ of entry, demanding a small tract of land in Portland. The defendant pleaded the general issue, and by brief statement, alleged that he was not tenant of the freehold. The plaintiffs proved their title by deed from James Neal, dated Feb. 2, 1827.

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. Assumpsit against the defendant as indorser of a note of the following tenor. “For value received, I promise to pay to Joshua Tebbetts or hearer, one hundred and thirteen dollars with interest, within three months after date. Lee, Jan. 21,1835. Alvah Tebbetts.” On the back of the note was indorsed. “ Holden without notice.

This was an appeal from the Probate. Court, approving the last will of Stephen Neal, in which Dow was named as executor. At tlie trial before Shepley J. the questions submitted to the jury were the sanity of the testator, and the due execution of the will.

This action was commenced in the Court of Common Pleas, where the defendant was defaulted, and Bird, the trustee, made a disclosure, and was adjudged by the Court to be trustee. From this adjudication, the trustee appealed, and entered the action at the next term of the S. J. Court.

The facts stated in the answer of Ezekiel Day, who was summoned as trustee, appear in the opinion of the Court. contended, that the bank shares, while standing in the name of Mrs. Crocker, were her husband’s properly, and subject to the payment of his debts. The transfer of the shares to Day, makes him liable to pay Crocker the value.

This was a writ of error to reverse a judgment rendered before a Justice of the Peace, Jan. 1, 1839, against Gowell, the plaintiff in error, in an action in favor of True, as clerk of a company of militia, brought to recover a fine for absence from a-company training on September 11, 1838. One of the many errors assigned was, that Gowell had never been enrolled six months before the said eleventh day of September, 1838, and therefore was not liable to do military duty.

<p>Exceptions from the Court of Common Pleas, Whitman C. J. presiding.</p> <p>Assumpsit on a written agreement to make and furnish threshing machines for the defendant. There were also counts for machines sold and delivered, for labor and materials, and for money paid, and liad and received. The plaintiffs offered in evidence the agreement, and certain evidence tending to prove the making of the machines, and the waiver by the defendant of performance at the time, and among the rest a letter of the defendant. Upon that testimony the plaintiffs contended, that they had made out their case, and wore entitled to go to the jury, and that it was a question of fact for the jury, whether there had not been a waiver of the conditions of the original agreement on the part of the defendant, and that it W'as for the jury to settle whether damages had been sustained. The Judge ruled otherwise, and ordered a nonsuit. The plaintiffs filed exceptions.</p> <p>and contended, that the question, whether the plaintiffs were a corporation, was not before the Court, as no such objection was made at the trial, and that it could be taken only in abatement; that in this respect there w'as no difference between a foreign corporation and one within the State; that the Court had no right to determine the credibility of testimony, this being entirely the province of the jury; that if there be any evidence of waiver for the jury to weigh, the case should bo submitted to the jury; and that it was very doubtful whether the Court can order a nonsuit in any caso without the consent of the plaintiff. 1 Bibb, 319; 2 Bibb, 207, 429, 464; 3 Com. Big. 117; 6 Pctersd. 241; 15 'Wend. 586; 1 Bay, 235; Brinley v. Tebbetts, 7 Grcenl. 70.</p> <p>The plaintiffs did not prove themselves to be a corporation, and could not maintain the action. 10 Mass. R. 92 ; 5 Mass. R. 547 ; 3 Mass. Ji. 276 ; 12 Mass. B. 400. The Court has an undoubted right to order a nonsuit, where the evidence is not sufficient to support the action. Perley v. Xjittle, 3 Greenl. 276; Sanford v. Emery, 2 Grecnl. 5. The evidence, if any, contained in the letter was for the determination of the Court, and not the jury. If a verdict had been rendered upon this evidence, the Court would not have sustained it, but would have set it aside.</p>

Sprague Keen summoned as the trustee of Elbridge G. Snell, one of the defendants, disclosed, that Snell came to live with him ■when he was about three years of age, and remained with him until he was about eighteen years of age, and was then about to leave unless there was -,ome agreement, when it was agreed between them, that Snell should work with Keen until he should become twenty-one years of age, and was to receive a yoke of oxen, a cow, a yearling colt, two pairs of…

Assumpsit for freight. The writ was served July 28, and the Court to which it was returnable was hoMen in November. The general issue only was pleaded. The freight amounted to $33,75. The question made, was one exclusively of costs. The defendant relied upon a tender made after the suit was brought. The writ and service amounted to $3,90.

The parties agreed to a statement of facts, from which it appeared that the action was assumpsit by the plaintiff as indorsee of a note, which was read to the jury, and of which a copy follows. “ Newbury Port, July 10, 1835.

Deane had brought an action against Coffin, and during its pendency in the S. J. Court, the parties made the following agreement. “We agree to and with each other, that 8. S. 8., M. D., and ./.

Assumpsit on a promissory note, dated January 18, 1836, for the sum of £§>3900, payable to Moses Emery, or order, at said Bank, in sixty days and grace,… Held: that an attorney to whom a demand was sent for collection might release an attachment of property and assent to take a dividend, on an assignment, and bind his client in thus doing. This decision is sanctioned by Chancellor Kent. 2 Com. 620, note. The case of Union Bank v. Geary, 5 Beters, 99, is precisely in point.

Assumpsit for money paid, laid out and expended. The plaintiff and defendant had been sureties for one Chadbourne, and a suit had been brought against them, and judgment obtained against the three. This execution had been paid by the plaintiff, Chadbourne being insolvent, and he now claimed to recover one half the amount of execution, debt and costs. The defendant objected to the allowance of any part of the costs.

This was a writ of entry. To make out his title, the demand-ant offered a deed of the land demanded, and introduced a witness who testified, that the subscribing witnesses to the deed resided in Somersworth, in the State of New-Jiampshire, near the line of Maine, and within thirty miles of the place of trial, and were fre» qnently within the county of York; that he was well acquainted with the handwriting of the subscribing witnesses and of the grantor, having seen them…

<p>Assumpsit on a note from the defendant to Ansel Gerrish for $1500, payable in one year, and indorsed in blank to the plaintiff) June 24, 1835, as collateral security to indemnify him as surety for Gerrish to the York Bank. After the note was proved and read to the jury, the defendant proved by the Cashier of the York Bank that the note to that Bank had been paid, and that Gowen was then under no liability to the Bank for Gerrish, and that it appeared that Gowen had paid to the Bank as surety for Gerrish, May 1, 1837, $202,97, and no more. The defendant then proved, and offered in evidence, objection having been made thereto by the plaintiff) and having been overruled by Emery J. before whom the trial took place, a receipt from Gerrish to the defendant dated August 17, 1836, wherein he acknowledged that he had received of the defendant $1250, and all the interest due, to be indorsed on the note. The witness who proved the receipt, on cross examination, stated that the receipt was given at Gerrish’s house, but nothing was paid by the defendant therefor. He also introduced, with like objection made, a note from Gerrish to him, dated the same 17th of August, 1836, for $250. The plaintiff then offered to prove and did prove, although the defendant objected thereto, that after the indorsement of the note to him, he became surety for Gerrish to the South Berwick Bank, about Aug. 1835, for $500, and also to the Rochester Bank, about September, 1836, for the sum of $1000, neither of which sums have yet been paid. The plaintiff proved, that in a conversation had in April, 1837, Gowen said to Wentworth, “ you know I told you I had the note, when l sold you my potash and storeand Wentworth replied, “ I don’t care, I have a receipt.” The sale of the potash and store took place Oct. 10, 1835.</p> <p>The counsel for the defendant contended, that the plaintiff ought to recover in this suit only the sum of 202,97, and interest thereon ; but the Judge ruled, that the plaintiff was entitled to recover the whole amount of the note. The defendant then consented to a default, which was to be taken off if the rulings of the Judge against him were erroneous.</p> <p>argued that the plaintiff ought not to recover but enough to secure him for the amount paid to the Bank. The note was indorsed to him for that specific purpose, and he can retain for that object alone. The surplus belonged to Gerrish and he had a right to release it to the defendant at any time. The plaintiff has paid nothing as surety for Gerrish beyond that amount, and if the whole amount of the note was now received by the plaintiff, he would be the trustee of Gerrish for the whole balance. There is no difficulty in rendering judgment for the amount justly due, and it avoids circuity of action. Story on Bailments, § 304 ; Jarvis v. Rogers, 15 Mass. R. 389; 4 Burr. 2214; 6 T. R. 258 ; 7 Bast, 224; Lane v. Padelford, 14 Maine Rep. 94; Towne v. Jaquiih, 6 Mass. R. 46 ; Stevens v. McJntire, 14 Maine R. 14.</p> <p>The note was indorsed for a sufficient consideration before it fell due, and thereby the entire note became the property of the plaintiff, subject only to be defeated on indemnifying the plaintiff. The payee had no more right to discharge a portion of the note, than to discharge the whole. The note belonged to another and not to him. Want of consideration could not be set up as a defence to the note or to any part of it, and much less can a voluntary payment after notice, have that effect. Smith v. Hiscock, 14 Maine R. 449; Bayley on Bills, (Ph. Sf S. Ed.) 551, note 19; ib. 466, and note 45 ; ib. 545; Batchellor v. Priest, 12 Pick. 399; Pomeroy v. Smith, 17 Pick. 86. The receipt is but a mere acknowledgment or confession of payment by Gerrish, and is inadmissible to prove payment after the note has been negotiated. Hackett v. Martin, 8 Greenl. 77. The receipt is wholly invalid, not being under seal, as the case shows nothing was paid. The note introduced by the defendant is subject to the same objections, and to another sufficient one, that it was not filed in set-off. After the plaintiff had proved the note to have been indorsed to him before it was due, the other testimony offered by him was immaterial. It was however rightly admitted. Evidence that nothing was paid, and that Gerrish was insolvent, was proper for the consideration of the jury, to show a fraud upon the plaintiff. The testimony, that the plaintiff after-wards became a surety for Gerrish to others, was admissible, to enable the jury to draw the inference, that Gerrish agreed that the note should be retained for security generally, and because the law would allow him to retain the note to indemnify him against all loss by becoming surety while the note was in his hands. Story on Bailments, <§> 321.</p>

<p>By the stat. of 1830, c. 478, where the debtor has three swine, of which but one exceeds the weight of one hundred pounds, the one last mentioned “ is exempted from attachment, execution, and distress.”</p> <p>The necessity of malting an election by the debtor of which he will retain, exists only where he has two swine, each exceeding the weight of one hundred pounds.</p>

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. The plaintiff commenced an action against Huntington for the May Term of the C. C. Pleas, 1837, in this county, and his body was arrested upon the writ, and he gave the bond declared on, dated March 15, 1837, to procure his release from arrest. The bond was in the form required by the poor debtor acts of 1835 and 1836.

<p>in this State, since the militia act of 1884, the company roll and the record thereof, without the production of the orderly book, are competent and sufficient evidence to prove that the company had mustered, and that a soldier was absent on a given day.</p>

Assumpsit on a town order of which the following is a copy. “ No. 2. Buclcfield, May 21, 1838.

Assumpsit on a contract signed by the defendants, on the first part, and by the plaintiff, on the second part, dated Dec. 18, 1835, wherein it was agreed, that the defendants should sell to the plaintiff a township of land in the county of Oxford, “ on the following terms and conditions, namely, at the rate of one dollar per thousand feet, board measure, for all the merchantable pine timber now standing on said township suitable for making boards, one fourth part of the…

The writ was served upon the alleged trustees, William Weston^ Richard Clay, Henry Jewell, and Bradbury F. Binsmore, on June 23, 1838.

<p>If the preliminary proceedings, under the statute of 1835, c. 195, for the relief of poor debtors, have all been regular, and the Justices have jurisdiction of the question, and they proceed to examine the notification to the creditor and the return of service thereon, and duly certify that the creditor was notified according to law, of the intention of the debtor to take the oath; their adjudication, until reversed, is conclusive upon the parties.</p> <p>The service of such notification by reading the same to the creditor, instead of leaving a copy, is insufficient.</p>

<p>A town may legally choose a collector of taxes, and a constable, under an article in the warrant calling the annual meeting, “ to choose overseers of the poor and all other town officers for the year ensuing.”</p> <p>The return of a collector of taxes upon his warrant of his proceedings on the distraining and sale of chattels for the payment of taxes, is prima facie evidence of his having tendered to the former owner the overplus arising from such sale beyond the amount of the tax and charges.</p> <p>The vote of a town, at the annual meeting, under authority therefor in the warrant, “to set off” certain inhabitants named, “together with their estates, into a separate school district,” defines the limits sufficiently to create a legal district.</p>

The defendant was indicted in the Supreme Judicial Court, the indictment containing five counts. The first count charged Andrews with having in his possession ten counterfeit bills of a bank in this State, knowing them to be such, with the intent to pass them as true. The second count charged him, in the same manner, with having four counterfeit bills of a bank of this State with the intent to pass them as genuine.

This was a bill in equity, and was originally argued at the May Term in this county, 1838, on bill, answer and proof. An opinion was delivered orally at the same term, and on the then existing state of facts, it was considered that the deed of the land was fraudulently taken by the defendant to himself, when it should have been taken to the plaintiff, and a decree was entered that the defendant should convey the premises to the plaintiff.

Assumpsit upon a promise by the defendant to indemnify the plaintiff, who was a constable of Whitefield, for any damage he might sustain for taking a horse and three tons of hay upon an execution in his hands in favor of Hosea Northey, son of the defendant, against one O ’Brian. The horse and hay were claimed by persons other than the execution debtor. The defendant directed the plaintiff to take the property, which he was unwilling to do without indemnity.

<p>If a woman resides in a town with her husband for 1wo years, when he dies, and she continues to reside therein for the throe succeeding years, unmarried, she gains no settlement in the town by such residence.</p> <p>In determining whether a pauper has gained a settlement by a residence of five years together in one town, it was held, that the jury are to gather the intentions of the pauper, as to a change of domicil, from his declarations, which are not conclusive evidence on that point, and from his acts, all taken in connection.</p> <p>Dix Island is included within the limits of the town of St. George.</p>

<p>Exceptions from the Court of Common Pleas, Smith J. presiding.</p> <p>This was a complaint for flowing the land of the complainants. By brief statement, the defendant denied the title of the complainants to the land flowed, and alleged that the defendant, and those under whom he claimed, had a license to flow without paying damage, and that the title to the land flowed was in the defendant. The complainants derived title from John Seidenspai'ger, by deed, of which the substance is given in the opinion of the Court. The defendant proved by parol, that Prior, the grantor of Henry Fogler, and also Fogler, the grantor of John Seidensparger, during the time they owned the land, severally acknowledged that the grantors of the defendant had a right to flow without paying damages; that the defendant and his grantors claimed the right to flow without payment of damages ; that when Fogler conveyed to John Seidensparger, he reserved by parol the right of the grantors of the defendant to flow the land without the payment of damages. There was however evidence tending to disprove the parol reservation. The defendant offered to prove, that for more than fifty years, the defendant and those under whom he claimed, had maintained the dam, which caused the flowing, at its present height, and claimed the right to flow and had flowed without paying damages, as evidence for the jury to presume a license to flow without paying damages. He also offered to prove that the complainants sustained no damage by the flowing. The other facts sufficiently appear in the opinion of the Court. The Judge ruled, that the uninterrupted flowing for any length of time, with the claim of the right, was not evidence sufficient for the jury to presume a license to flow without paying damages. He also overruled the motion to prove that the flowing was no damage, and ruled, that if the land of the complainants was proved to have been flowed by the defendants’ mill-dam, some damages would be presumed, and the jury or committee to be after-wards appointed, were to estimate the amount of damages, or to ascertain whether in fact there were any or not. The Judge also ruled, that a right to overflow the complainants’ land, derived from the complainants’ grantors, could not be established by proving a parol agreement, so as to affect the title of the present complainants. With respect to the deed of Fogler to Seidensparger, the Judge instructed the jury, that if there was no known monument at the place of beginning, that then they might go to the end of the first line and at the monument of the line at the end of the same, and beginning at that monument they might run back the number of rods mentioned in the deed, and thus determine the place of beginning ; and that in the absence of all other testimony that then the length of the line would be the best evidence to ascertain the boundary, and would show wlicro the same was. The jury returned a verdict for the complainants, and that they found the length of the first line mentioned in the deed by beginning at the second boundary mentioned and running back the number of rods given in the deed to find the boundary first mentioned. The respondent filed exceptions.</p> <p>argued in support of the five objections stated in the commencement of the opinion of ihe Court; and cited Bands Ah. c. 109, art. 10, <§> 11 ; Lappish v. Wells, 6 Greenl. 175; Schwartz v. Kuhn, 1 Fair/. 274; 3 Johns. R. 383 ; Dane, c. 101, art. 5, § 24, 27 ; 16 Johns. R. 172 ; Davis v. Rainsford, 17 Mass. R. 207 ; Ilathorne v. Stinson, 1 Fairf. 224; same case, 3 Fairf. 183.</p> <p>1. That the uninterrupted flowing for any length of time by the respondent and his grantors, and their claiming the right, was not evidence sufficient for the jury to presume a license to flow from the complainants and their grantors, without paying damage, so as to give the respondent a permanent right. Tinkham v. Arnold, 3 Greenl. 120. The cases Ilathorne v. Stinson, 1 and 3 Fairf. w'ere examined by the counsel, and the conclusion drawn, that they were not intended to overrule or impeach the case of Tinkham, v. Arnold.</p> <p>2. That the right to overflow the land of the complainants without paying damages, could not be established by proving a parol agreement made with the complainants’ grantors. Angelí on Water Courses, c. 4 & 6, and cases there cited ; Cook v. Stearns, 1] Mass. R. 537 ; Ricker v. Kelley, 1 Greenl. 117 ; 4 East, 107 ; Stowell v. Flagg, 11 Mass. R. 364; Clement v. Durgin, 5 Greenl. 9 ; 6 East, 602 ; 2 Rolle, 152; 3 Kent, 452; 2 Sound. 175, note; 7 Taunt. 374; 4 Johns. R. 81; 6 Mod, 171; Angelí on W. C. 43 ; Jacob’s Daw Die. .License; 2 Nelson’s Abr. 1123 ; Fopham’s Rep. 151; Wood v. Lake, Sayer, 3. At the close of the argument on this point, it was insisted, that the iollow'ing grounds were established. 1. A permanent right to flow the land of another without payment of damage, can be created only by deed or instrument in writing. 2. A parol license of this kind is revocable. 3. The transfer of the land by deed without reservation is a revocation. 4. The license is not assignable. 5. It is a parol license not to be performed within the space of one year. 6. There was no consideration shown.</p> <p>3. That the flowing of the cultivated, land of the complainants by the respondent’s mill-dam, was evidence sufficient for the jury to presume some damage ; and witnesses should not be admitted to prove that in their opinion, there was no damage. Prov. St. Mills of 1713 ; Mass. stat. on the same subject, 1795 & 1798; Sullivan on Land Titles, 277; Lowell v- Spring, 6 Mass. JR. 398; stat. 1821, c. 45; stat. 1824, c. 261 ;■ Axtell v. Coombs, 4 Greenl. 322; 6 Modern, 89; 6 Cowen, 35; 3 Fairf. 346. The respondent cannot set up any defence not embraced in the brief statement, unless it can be given in evidence under the general issue.</p> <p>4. The instructions of the Judge to the jury, relative to the mode of ascertaining the extent and position of the boundaries described in the deed were correct.</p>

Assumpsit on a policy of insurance. There was in the policy the usual clause, providing for a reference in case of disputes arising under it. There was no evidence of any offer to refer before the commencement of the suit. The counsel for the defendants requested Weston C. J. presiding at the trial, to direct a nonsuit, because no offer to refer had been made. This was declined by the Chief Justice. The plaintiff claimed as for a total loss.

<p>Debt on a bond, given by the defendants, Ruggles, Ludwig and Paine, as executors of the last will and testament of Daniel Hose, deceased, with their sureties, to the Judge of Probate for the county of Lincoln, in form prescribed by law, conditioned to return an inventory, and to administer the estate according to the will. The will was approved Nov. 7, 1833, and the bond dated the same day. By the terms of the will, the persons named as executors were to act not only in that capacity, but also in some respects in the capacity of trustees.</p> <p>The estate was given to the widow and children “ with the provisions and subject to the conditions and exceptions hereinafter provided for, and subject to the discretion and direction in all things of the executors and trustees hereinafter appointed.” After appointing Ruggles, Ludwig, and Paine executors, the will says, “ And I do hereby further constitute, choose and appoint the said Ruggles, Ludwig and Paine, and do hereby make them trustees of all my estate, real and personal,” with certain exceptions, “ in trust and as a trust estate for the benefit of my children.” “ I do hereby give and grant to my said executors full' power over the said trust estate hereby bequeathed, to manage, dispose of and distribute said trust estate according to their own judgment and discretion in all things.” “ That they should divide the property entrusted to their use, equally amongst all my children, upon their arriving at the age of twenty-one, if in their opinion, it shall be proper so to do, and for the benefit of all or either of them.” And gives power and authority “ to dispose of the share of either of my said children in any other way or manner than is herein provided, if they shall have good or sufficient cause for so doing, and in such manner as they shall believe will best promote the interest and well-being of my said children.” “ I give and grant to my said trustees full powers and authority and all that may be necessary for the execution of all trusts herein created.” The will also provides, that if either of the three should refuse to act or should decease, those remaining “ shall in any manner they may see proper appoint other fit person or persons to be trustees in the place and stead of him or them not acting.”</p> <p>The report of the case states, that at the trial before Weston C. J., the defendants contended, that by the will the executors had a right to retain certain property which belonged to the estate, as trustees, to be disposed of as prescribed by the will. The duties and liabilities of the defendants depending much upon the question, whether the executors sustain the character of trustees or not, the cause was taken from the jury for the purpose of submitting certain points to the decision of the whole Court. It appeared that the executors had given no other bond, than the one in suit. Questions were raised:</p> <p>1. Whether the executors are bound by law to give a separate bond in their character of trustees.</p> <p>2. Whether they are bound to do so, the Judge of Probate having passed no order, requiring such bond, or determining for what sum it shall be given.</p> <p>3. Whether the executors, holding themselves in readiness to give a separate bond as trustees, whenever thereto required by the Judge of Probate, and notified of the amount for which it is to be given, have a right to act as trustees under the will.</p> <p>4. Whether having failed, without such requisition or order, to give such bond, is to be considered as having declined the acceptance of the trust specially confided to them by the will.</p> <p>5. Whether in such case, their character as trustees under the will may be revived, whenever they may give a separate bond as such, to the acceptance of the Judge of Probate.</p> <p>. The case was strenuously argued by Preble for the heirs at law and legatees of Rose, who instituted the suit in the name of the Judge of Probate, and by Ruggles, pro se, and for the other defendants, and by Holmes for some of them.</p> <p>Each of the counsel cited and commented upon the statute of 1821, c. 51, to regulate the jurisdiction and proceedings of Courts of Probate.</p> <p>remarked, that there were serious obstacles to the maintenance of the action, not referred to among the matters reserved for the consideration of the Court, but that bo should confine himself to such as were presented. He cited in his argument 9 Petersdorf, 285, n : 3 Bac. Ab. Ex’or C; Toller on Ex’rs 351, 361; 1 Ves. Jr. 63 ; 1 llar. Chan. 524; 3 Aik. 96; 1 Cox, 134; Dorr v. Wainwright, 13 Pick. 328 ; Hall v. Cushing, 9 Pick. 395; Towne v. Amnddoivn, 20 Pick. 535; Saunderson v. Stearns, 6 Mass. R. 37; 8 Cranch, 9; 10 Peters, 592; 1 Paige, 509; Mucklow v. Fuller, Jacob, 198; Williams on Ex’rs and AdrrCrs 1104 ; 3 Bac. Ab. tit. Ex. E 14 ; 6 Madd. 15; l Madd. 578.</p>

<p>The stat. of 1838, c. 311, entitled “ An additional act concerning the public money apportioned to the State of Maine ,” empowers the respective towns to distribute the amount of the money received under the act of 1837, c. 265, among the inhabitants of the town per capita9 whatever appropriation or disposition thereof had been previously made by the town under the act of 1837.</p>

.Exceptions from the Court of Common Pleas, Redington J. presiding. Assumpsit on an account annexed to the writ. Neither the time of the alleged delivery of the articles charged, nor the quantity* nor the description of them, nor the time when the action was commenced, can be ascertained from the exceptions.

Exceptions from the Court of Common Pleas, Redington J. presiding. This was an action of assumpsit against Charles Buck, Cornelius Kidder, Paul B. Barker, Freeman Weeks and Otis Small, for four hundred and twenty-five casks of lime.

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

Exceptions from the C. C. Pleas, Redington J. presiding. The action was assumpsit, the writ bearing date Nov. S3, 1886, on a draft dated Jan. 17, 1830, for fp 1000, drawn by the defendant on John Thompson, payable in Boston in 60 days, to the order of James B. Wheaton, accepted by Thompson, and indorsed by Wheaton. With the general issue the statute of limitations was pleaded by brief statement.

<p>The general rule of law is, that the payment of the price of an article is sufficient to complete the sale between the seller and purchaser; but as it respects a second purchaser or creditor, a delivery is necessary.</p> <p>But there are exceptions to the general rule, of which this is one : — if a party claiming title under the seller, either as attaching creditor or purchaser, had notice of the prior sale before his rights accrued, he cannot allege any defect in the sale for want of a delivery.</p> <p>And in an' action by a purchaser against an officer for seizing the property on execution after the sale, but before the delivery, the want of a delivery furnishes no defence to the officer, if the execution creditor had notice of the sale before the property was taken on the execution.</p>

<p>If an easement in land held in common, be granted by vote of the proprietors, and the grantee enter into possession of the easement, his title will be good against subsequent purchasers, without recording the grant in the registry of deeds.</p> <p>Where referees, appointed by rule of the Court of Common Pleas, make a final report, without submitting any question of law to the consideration of the Court, and the Court, upon inquiry into the facts, accepts or declines to accept the report, the judgment of that Court is final.</p> <p>But where the referees report a statement of facts, and expressly refer the law arising thereon, to the determination of the Court, the acceptance or rejection of the report is not an act of discretion, but a decision of the law which is subject to revision in this Court by exceptions.</p> <p>When a question of law, arising upon a report of referees, is in this Court on exceptions from the Court of Common Pleas, this Court has power to recommit the report to the referees.</p> <p>When a question of law comes before this Court by exceptions from the Court of Common Pleas, the facts stated in the bill, or referred to as making a pari, of the case, must alone be the ground of decision.</p> <p>Where the owner of land flowed by a mill dam, sells the mills and dam, and retains the land, the right to flow the land, to the extent to which it was then flowed, without payment of damages passes by the grant; but where the owner sells the land flowed, and retains the mills and dam, without reserving the right to flow, he is not protected from the payment of damages.</p>

Exceptions from the Court of Common Pleas, Redington J. presiding. This was an action of assumpsit on the following account, annexed to the writ. July 28, 1837. Ezekiel Perry to J. D. Clark. Dr. To 60 lime casks, at 23 cents per cask, $13,80 Aug. 7. To 60 lime casks, at 24 cents per cask, 14,40 To 600 of hay, 6,00 34,20 Cr. by cash, 13,80 $20,40 The defendant filed an account in set-off, but the exceptions do not show, that any evidence was given in reference to it.

Exceptions from the Court of Common Pleas, Redington J. presiding. This was a libel filed by the plaintiff, praying for a decree of forfeiture of a pair of oxen, under the stat. ] 834, c. 137, concerning pounds. Freeman Reed appeared in defence, and put in his claim for the oxen.

Exceptions from the District Court, for the Middle District, Redington J. presiding. Assumpsit against John Swann, John Woodcock, B. T. Pierce and Daniel F. Harding, on a note of the following tenor. “Camden, 20 August, 1829. For value received we promise to pay Amos Barrett, or order, fifty-four dollars and fifty-one cents within sixty days, with interest.

Exceptions from the District Court, for the Middle District, Redington J. presiding. Assumpsit on a note, dated July 7, 1832, given by Allbee, as principal, and by Keith, the other defendant, as surety, for $20, payable to William McLellan, or order, on demand with interest, and by him indorsed. The general issue was pleaded, and the statute of limitations relied on in a brief statement. The writ was dated July 7, 1838.

Exceptions from the District^ Court, for tho Middle District, Redington J. presiding. Replevin for ten cattle. The defendant proved, that the cattle mentioned in the writ were found on land of D. F. Harding, Esq., and that by Harding’s request tbe witness called on the defendant, and desired him to drive the cattle to the pound, and that the defendant did, at the request of Hat-ding, drive them to the pound.

<p>Exceptions from the Court of Common Pleas, Remngton J. presiding.</p> <p>Trover for a heifer. The plaintiff proved property in himself, that the heifer was found in the possession of the defendant, that the plaintiff demanded the property, and that the defendant refused to deliver it. The defendant claims the heifer under a sale at auction by a deputy sheriff, under a decree of sale made by a Justice of the Peace for the county of Lincoln. To prove his title, the defendant introduced the copy of a libel, wherein it was alleged, that the heifer was impounded by one Rogers, “ taken for doing damage in the inclosure of Winslow Gatchell, in said Bowdoin,” and advertised according to law, and that no owner appeared. The copy of an order of notice by a Justice of the Peace on the libel, returnable before himself, with a return of service thereon. And the copy of an order of sale, under the hand and seal of the Justice, directed to the sheriff, «fee., of the following purport. “"Whereas, James M. Rogers of &c. on the 12th day of November, 1885, by the consideration of our Justice Court holden by W. S., Esq., one of the Justices, he. obtained a decree for the sale of the following beast, (describing the heifer,) with costs taxed at $2,78, as to us appears of record, whereof execution remains to be done. We command you therefore, to make sale of the same in manner prescribed by law for the sale of goods and chattels in satisfaction of executions, and after deducting your lawful fees, you will pay over the residue to the pound keeper and take his receipt therefor. Hereof fail not, fee.” On this was a copy of the proceedings of a deputy sheriff in making sale of the heifer. No other evidence v/as produced to show the legality of the sale. The Judge ruled that no defence was made out.</p> <p>The case was submitted by May, for the plaintiff, on his brief, and by E. B. Bowman, for the defendant, without argument.</p> <p>The verdict ought to stand, because the defendant offered no legal evidence of any decree for the sale of the heifer. The recital of that fact in a paper cannot be higher evidence than an execution would be of the rendition of a judgment. A copy of the record of the judgment, if such there was, should have been produced. 4 Mass. It. 402; 16 Wend. 562; 2 Johns. R. 280 ; 11 Pick. 28. But if the paper reciting the decree is evidence of the judgment, it does not show the necessary facts to give the Justice jurisdiction. No one of the requirements of the statute have been complied with. Not even the appraisement to show that the heifer did not exceed twenty dollars in value, without which the Justice cannot act. The record should find affirmatively, all the facts which are essential to give jurisdiction in the case; for nothing can be presumed in favor of the jurisdiction of an inferior tribunal. 4 Mass. R. 641; 2 Fairf. 344. There is one fact stated in the libel, which shows that the Justice had no jurisdiction in the case ; that the heifer was impounded by Rogers foe doing damage in the inclosure of Gatchell. No one but the owner can impound cattle damage feasant. Stat. 1834, c. 137, § 3.</p>

Exceptions from the Court of Common Pleas, Redinoton J. presiding. The indictment alleged, that Douglas, on iSept. 28, 1838, at Topsham in the county of Lincoln, took, stole and converted to his own use a pair of oxen, the property of one Chick. The proof was, that Douglas took the oxen from Chick, the owner, in Litchfield in the county of Kennebec, and drove them to Topsham, and there sold them. The circumstances were such as left no doubt of his guilt.

<p>The parties agreed to a statement of facts in this case, with the exception of that fact, whether the owners of the land taxed had or had not paid the taxes into the treasury of the county. This was submitted to the decision of a jury, and they returned their verdict that the money had not been received by the county. The facts agreed are stated in the opinion of the Court. In the papers referred to in the statement, there was no record of any location of a road where the work was done. The paper called a tax commences thus: “ Tax assessed by the Court of Sessions, December Term, 1829, in the County of Kennebec, on a gore of land between Clinton and Unity, in said County, from the north line of Albion, near the south line of M 1 to the north line of K 2, to make and repair the County road laid out over said gore by Levi Libbey’s. Tax, four cents on an acre — amount of tax assessed $320.” Then follow names of persons, or description of lots, with sums set against each, amounting in the whole to $322,80. It ends as follows. “ At a Court of Sessions in and for the County of Kennebec, December Term, 1829, ordered, that the foregoing tax of $322,88 be collected agreeably to the statute in such cases made and provided.” This was signed by the three Sessions Justices, one of whom was Charles Hayden. On the back of the original paper w'as this indorsement. “ Charles Hayden app’td to expend.”</p> <p>This case was argued at the May Term, 1837, the opinion was delivered at the Nov. Term, in Cumberland, 1839, was received by the Reporter, May 1, 1840, and was accidentally omitted in the last volume.</p> <p>and cited Hampshire v. Franklin, 16 Mass. I?,. 76 ; stat. 1821, c. 118, <§> 24 ; Hayden v. Madison, 7 Greenl. 76 ; Abbott v. Hermon, ib. 118.</p> <p>argued for the defendants, and cited Commonwealth v. Merrick, 2 Mass. R. 529; Todd v. Rome, 2 Greenl. 55; stat. 1821, c. f l 8, § 24; Joy v. Oxford.I, 3 Greenl. 134; Harlow v. jPike, 3 Greenl. 438; Estes v. Troy, 5 Greenl. 368; Emerson v. Washington County, 9 Greenl. 98.</p>

The plaintiff claimed damages of the inhabitants of Augusta, for an injury done to his stage coach, sustained, as he alleged, in consequence of defects suffered to remain in the highway within the town. The claim was submitted to a referee. The award of the referee is stated in the opinion of the Court. The exceptions were by the defendants. The arguments were in writing, by Boutelle and Child, for the plaintiff, and by Emmons, for the defendants.

The Reporter has received no copies or papers in this case other than the opinion of the Court, and can only state the facts as he finds them on his minutes, made while the papers were read.

Error, to reverse a judgment of a justice of the peace rendered against Robinson, the plaintiff in error, for the penalty for absence from a company training on Sept. 23, 1837. Folger brought the suit as clerk of the company commanded by Marlborough P. Faught. No writ of error, or assignment of errors, is found in the case, but merely the exceptions before the justice.

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

This was a writ of entry, dated May 3, 1838, declaring on the demandant’s own seizin within twenty years. It was agreed, that C. W. Apthorp was once the lawful owner of the premises, being a part of ten mile lot, No. 12, and that he died seized thereof in 1797, and that the title descended to his heirs at law.

<p>The guardian of a person, non compos mentis, who is entitled to a pension from the United States, is not bound to apply the pension money in his hands to the payment of pre-existing debts of his ward.</p> <p>Nor is it the duty of such guardian to make sale of the household furniture of the ward, not subject to be taken on execution, for the payment of his debts.</p> <p>In a suit for the benefit of a creditor upon a bond given by the guardian of a person non compos mentis to the Judge of Probate, where the only breach shown is the neglect of the guardian to return an inventory of the estate of the ward within three months, and where the estate was not subject to the payment of debts, the damages are but nominal.</p> <p>In a suit upon a guardian’s bond to the Judge of Probate where it is not alleged in the torit for whose benefit it is instituted, and that the same is sued out for his benefit in tho name of the Judge of Probate, as required by the stat. 1830, c. 470, there being merely an indorsement thereof on the back of the writ, as required prior to that statute, and where but nominal damages could be recovered; the court will not grant leave to set tho writ right by amendment, if the power to grant such amendment exists.</p>

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

Exceptions from the Court of Common Pleas, Redington J. presiding. Assumpsit on a promissory note, made by the defendants to the plaintiffs, dated Dec. 2, 1836, for $864,84, payable in six months with interest. The writ was dated June 2, 1837.

Exceptions from the Court of Common Pleas, Redington J. presiding. Debt upon a writing under seal from the defendant to the plaintiff, dated February 24, 1836. At the trial, the defendant introduced a sealed writing from the plaintiff to him, bearing the same date, in which Low agreed to give, grant, sell, and legally convey unto Marshall, or his assigns, a certain tract of land, described.

Exceptions from the Court of Common Pleas, Redingtqn J. presiding. Assumpsit upon a promissory note, signed by the defendant, and made payable to Smith 8f Boody fy Co. or order, dated Nov. 9, 1836, for $380, payable in June, 1837. The note was thus indorsed : “ Smith 8f Boody Co. by Calvin F. Stevens.” The defendant denied that the note was duly indorsed, and also denied that Stevens had any right to indorse it.

Exceptions from tlie Court of Common Pleas, Redington J. presiding. Replevin for four oxen and four cows, alleged to belong to tbe plaintiff, and to have been illegally detained by the defendants iri tbe town pound of the town of Rome. The writ was dated June 30, 1837, and was originally returnable before a Justice of the Peace. The service was made and the creatures were replevied' the next day, July 1.

The case came before the Court upon a statement of facts. It was a special action on the case against Charles Stetson and Daniel T. Jewett, as counsellors and attorneys at law for their neglect to charge the indorser of a promissory note, left with them for collection by.'the plaintiffs before it fell due. There was also a special count for the neglect of the defendants as agents of the plaintiffs in omitting to take the necessary measures to hold the indorser of the note.

Writ of entry, and plea the general issue. The demandant relied on a levy of an execution upon the demanded premises in his favor against one Hiram Brackett, issued on a judgment of the Court of Common Pleas, August Term, 1827. The execution was extended upon the land, September 12, 1827, and was recorded December 11, 1827.

<p>Where one contracts to purchase goods on certain conditions to be by him performed, and receives them into his possession, but fails to perform the conditions on his part, he is liable to be charged as trustee of the owner of the goods.</p> <p>If one having possession of goods under a contract which has ceased to be valid, be summoned as trustee, and afterwards has notice of a bill of sale of the same goods, bearing a date prior to the service, from the person with whom he contracted to a third person, and sets it forth with the facts in his disclosure; and thereupon the creditor objects that the assignment ought not to have any effect to defeat his attachment under the process, and the assignee is duty summoned into Court to try the validity of his assignment, and refuses to come in, and is defaulted, and the alleged trustee is adjudged to be such; the judgment is conclusive against all claim of the assignee upon the trustee under the bill of sale.</p> <p>And if such assignee, during the pendency of the trustee process, obtains from the alleged trustee by false pretences, payment for the goods by the discharge of a debt against him and by the negotiable note of a solvent man, the amount may be-recovered back in an action for money had and received.</p>

Replevin for a quantity of hay taken by Bachelder, as a deputy sheriff, on a process in favor of A. W. Ladd, against Lemuel Turner, as the property of the latter. The facts were agreed for the decision of the Court thereon. Lemuel Turner had been in possession of the farm whereon the hay was cut for ten years next before the making of the lease of the premises from the plaintiff to him, dated April 1, 1836.

Exceptions from the Court of Common Pleas, Remngton J, presiding. Assumpsit upon a contract of the following tenor. “ Mr. Alfred Lewis. Sir, if ypu will let Andrew C. Butler have one hundred dollars worth of oil cloths, and take back what he cannot sell at the same price he takes them, I will be responsible for what he may sell, August 15, 1836. Ebeneser Freeman.” The oil cloths were delivered to Butler, and one point made in the defence was, that the plaintiff had been paid.

Exceptions from the,Court of Common Pleas, Redington J. presiding. Assumpsit for the use and occupation of a cooper’s shop and chaise-house from May 5, 1835, to the date of the writ. The plaintiff produced a deed from the defendant, of a house,-land and out buildings dated May 5, 1835.

Debt on a replevin bond. From facts agreed by the parties, it appeared, that the original action of replevin in which the bond was taken, was tried on the plea of non cepit only, and the verdict of the jury was for the defendant in replevin. There was no judgment for a return, but merely for costs for the defendant.

<p>One party to a negotiable note may upon request of another party to it, maintain an action for his benefit.</p> <p>And the written consent of the indorser, pending the trial, that the suit may be prosecuted in his name for the benefit of the indorsee, is equivalent to a ratification of the previous proceedings.</p> <p>If a negotiable note be transferred to an indorsee before it becomes payable, without notice of a defence, in payment of a ‘pre-existing debt, want of consideration, or the failure of it, cannot be given in evidence in defence.</p> <p>If the payee of a negotiable note then over due, having knowledge that it was in the hands of an indorsee, for a valuable consideration agrees to pay it, he cannot introduce claims in set-oil' arising after that time.</p> <p>If the depositary of papers assume the execution of the trust, he becomes responsible to any party who may .suffer by the violation of it; liis interest is balanced, and he is a competent witness for either party.</p> <p>If a witness expects that he will be relieved from responsibility to the plaintiff by the suit, and therefore advised the bringing of it, when in fact his liability is not changed by the result of such suit, he is a competent witness.</p> <p>When a witness has been called by one party and examined on some points, the other party may cross-examine him in relation to facts, material to the issue, other than those elicited by the party calling him; and if the answers are not satisfactory, he may by any legal proof contradict, or discredit them.</p> <p>The rule that if a witness testifies falsely as to any one material fact the whole of his testimony must bo rejected, is not of such binding effect as to authorize the Court to instruct the jury, that they cannot believe one part of his statement and disbelieve another. This is but a presumption of law, and cases often occur in which jurors may yield entire credit to certain statements, and disbelieve others.</p>

Assumpsit on a note dated June 3, 1837, for $5059,91, signed by the defendants, and made payable to F. A. Butman, or order, in twelve months with interest, and indorsed without recourse to him as indorsee.

Exceptions from the District Court, for the Middle District, Redington J. presiding. Assumpsit as indorsee of a note by the defendant to Ebenezer Blake, bearing date, April 10, 1834, for $35 on demand with interest. The writ was dated March 14, 1838. To prove the indorsement, the plaintiff called a witness who had seen Blake write, and who testified, that the indorsement was in Blake’s handwriting, and that Blake lived about eight miles from the place of trial.

<p>The grant of a saw-mill and grist-mill carries also the use of the head of water necessary to their enjoyment, with all incidents and appurtenances, as far as the right to convey to this extent existed in the grantor.</p> <p>If such grant cannot be beneficially enjoyed without causing the water to flow back upon other lands of the grantor, a right to do this, passed to the extent to which it had been flowed before the grant, by which all privies in estate under the grantor would be bound.</p> <p>A grant of a saw-mill and grist mill, “ with the privilege of raising a full head of water to the usual height, from the middle of November to the middle of May, so far as it respects lands of the grantor, and at other seasons as may be hereafter agreed,” does not restrict the grantee to the use of the head of water during that time only; but is merely a failure to fix exactly by compact to what extent the grantee might flow for the remainder of the year, and leaves that matter as an incident to the grant, to he determined by legal adjudication.</p>

Exceptions from the Court of Common Pleas, Smith J. presiding. Assumpsit against the defendant as administrator of the estate of Hanson Might, deceased. The testimony on the trial is given in the bill of exceptions, wherein it appears, that the presiding Judge, by consent of the parties, ordered a nonsuit. Exceptions to the order were filed by the plaintiff. The facts are sufficiently given in the opinion of this Court.

<p>The Court, sitting as a Court of Chancery, will not interfere to prevent or remove a private nuisance, unless the complainant has long and without interruption enjoyed a right, which has been recently injured, or which is in danger of being injured or destroyed; or unless the right has been established by a judicial determination.</p> <p>Where there is a gradual fall of water, extending over lands owned by different persons, merely sufficient to allow of one mill-dam; and where the different owners, recently and about the same time proceeded to erect separate dams upon their own land, and the lower dam renders the upper one useless ; the Court, acting as a'Court of Equity, will not restrain the proprietors of the lower dam by injunction from completing it, or interfere to abate it as a nuisance, before the rights of the parties are determined at law.</p>

<p>Exceptions from the Court of Common Pleas, Redington J. presiding.</p> <p>. Assumpsit for a quantity of bricks delivered in 1829, and a yoke of oxen delivered January 27, 1832. The writ was dated January 27, 1838. Eighteen or twenty years before the commencement of the'suit, the plaintiff contracted verbally with the defendant for the purchase of a farm, and entered upon the farm under that verbal contract, and lived thereon until the time of trial. The bricks and the oxen were delivered at the respective times charged in part payment of the farm, under the verbalu contract for the purchase thereof. The plaintiff proved that the defendant, in.the spring of the years 1837 and 1838, told the plaintiff that he supposed the plaintiff had paid for about one half the farm by way of the oxen and bricks-; that he was ready to,give a deed of the farm;. and that he would see Stubbs and Dickey, and come in a few days to the plaintiff’s house, and give the plaintiff or his son.a deed. The defendant conveyed the same to one Stubbs by deed dated January 18, 1838. The defendant^ for the purpose of showing that tl}e plaintiff had' abandoned the contract for the purchase of the land, proved that the plaintiff said to one Dickey, in Sept. 1837, that he had no interest in- the' land,- and that Allen might convey it to whomsoever he pleased. The defendant offered to prove that shortly afterwards Dickey told Allen what the plaintiff had said. This was ruled by the Judge to be inadmissible, as it did not appear that the plaintiff wished the statement to be made to the defendant. It did not appear, that the defendant gave the plaintiff any information of his intention to sell the land to Stubbs, or that the plaintiff tendered money, or demanded a deed. The defendant filed an account in set-off, for the use and occupation of the farm, and offered at the trial to prove it. The Judge declined to receive the evidence, and directed the account to be laid out of the case. The jury were instructed, that if they believed the admission and promise made by the defendant to the plaintiff in 1837 and 1838 to convey the land, it would enable the plaintiff to recover back what he had paid the defendant therefor, although a part of the payment had been made more than six years before the date of the writ; and notwithstanding the original contract for the sale and purchase of the land was not in writing. The verdict being for the plaintiff, the defendant filed exceptions.</p> <p>remarked, that they should not now contend, that money paid in part performance of a verbal contract for the purchase of land, where there is neglect or misconduct on the part of the seller and w'here the purchaser is not in fault, cannot be recovered hack. But where the purchaser by parol has entered into the possession of the land, and has had the benefit of it, even where he is entitled to recover, it should be only the amount paid after deducting the fair value of the rents. If he seeks equity, he should be held to do equity. The amount paid was but a fair equivalent for the use of the farm during the time, but if more, the balance only should be recovered. Whiting v. Dewey, 15 Pick. 428. The set-off should have been allowed. It is necessary to file an account only where there are distinct and independent demands, and not where the mutual demands arise from the same transaction. Jackson v. Dali, 14 Pick. 151 ; Erskine v. Plummer, 7 Greenl. 447. If this parol contract for the purchase and sale of land is to have effect, it is competent for the parties to abandon and rescind the contract in the same manner, by parol. The instructions on this point were erroneous. The instruction should have been, that the plaintiff could not recover, unless the defendant was in fault. 12 Johns. R. 451 ; 13 Johns. R. 359 ; 9 Cowen, 46. The defendant has always been ready to give a conveyance of the land when the consideration was paid. There should have been an offer to pay the sum due, and a demand of the deed, before any action could be maintained. Before then the plaintiff was not in fault. The plaintiff had the means of giving a title at any time, and that is sufficient. Trask v. Vinson, 20 Pick. 105. The statute of limitations was a good bar to all the plaintiff’s claim unless for the oxen. Here was no promise to pay the amount, or if any can be inferred, it is the conditional one to allow this towards the land, if the remainder should be paid. This condition was never performed. Porter v. Hill, 4 Greenl. 41; Deshon v. Eaton, 4 Greenl. 413; 8 Johns. R. 407 ; 9 Cowen, 674.</p> <p>argued that Hickey’s testimony was-rightly rejected, because it was a mere loose conversation with a third person, and not an agreement with the defendant to give up the bargain. It had relation merely to the legal rights of the plaintiff to convey the land, without consulting him. The law is clear, that the plaintiff may recover back the consideration paid under a parol contract to convey land, when the contract is violated by the defendant. 2 Stark. Ev. 69, and cases there cited. There can be no difference as to the operation of the statute of limitations, whether the new promise to pay be in money, goods, or land. A promise to pay in either is sufficient. Here the promise to pay was in land, and the defendant deprived himself of the power to convey the land. In such case it is not necessary, to show an offer to perform on the part of the plaintiff. 15 Johns. R. 503 ; 2 Stark. Ev. 866. An account for use and occupation of land is not the proper subject of an account in set-off 2 Stark. Ev. 855, 858, 865. Besides, the party cannot be charged on an implied contract, when there was an express one. Here the use and occupation was part of the agreement for the purchase.</p>

This action was brought by the plaintiff as indorsee of a note of hand of which this is a copy. “ King field, March 21, 1836. For value received, I promise to pay Mrs. Lmy Smith or order, thirty days from date, two hundred dollars. William, King.” At the trial before She prey J. the defence set up was a failure of the consideration. The payee of the note, at the time it was given, was a married woman, and the wife of Abraham Smith.

Assumpsit on an agreement, of which a copy follows. “ July 16, 1829. Whereas Benj.

<p>Case against the defendant for serving as a coroner, a writ of replevin sued out by William Ladd against the plaintiff without taking any replevin bond, and for making a false return thereon, stating that such bond had been taken and returned. It appeared on the trial before Shepley J., that a replevin writ and bond had been made by an attorney in favor of Ladd, against James Colman, and put into Ladd’s hands to procure service, and that after the bond had been executed, it bad been altered, making it payable to the plaintiff instead of Colman, the writ having been altered in like manner, to run against the plaintiff instead of Col-man.-- There was evidence tending to prove by the handwriting, that the alteration of the bond was made by the defendant; and alsq to prove, that being so altered, it was returned, and was the only bond returned with the replevin writ. The plaintiff prevailed in the replevin suit, and had á judgment in his favor for damage, costs and a return of the property, but could obtain no satisfaction. It appeared-that the plaintiff had commenced a suit upon the bond, and on a trial discontinued it. ,</p> <p>fphq defendants counsel contended, that if the jury were satisfied, that the bond had been altered by the defendant, .the .bond would not thereby be avoided, as it did not appear that he did it without authority,.and that the burthen of proof was on the plaintiff to prove that it was done without authority. The Judge instructed the jury, that if they were satisfied, that when the bond was executed, it-was payable to Colman, and was altered by the defendant, it would be thereby destroyed as a legal instrument,’ the alteration being material, unlpss the perspn making the alteration had authority from the parties to the bond to make if; and that it was not incumbent upon the plaintiff to prove that the defendant had not such authority, but on the defendant to prove that he had authority to make the alteration. If the instructions were erroneous, the. verdict for the plaintiff was to be set aside.</p> <p>contended, that 'the alteration was not a material one, and therefpre the instruction was not correct. The bond related to the same property, the same- question was to be ,tri(ed, the liability would be the same, whether the bond was to Colman or to the plaintiff. Barrett v. Thorndike, 1 Greénl. 73 ; 2 Stark. Ev. 329; Hatch v. Hatch, 9 Mass. R. 307;. Smith v. Crocker, 5 Mass. R. 538. And if the officer did not return a proper bond, it should have been taken advantage of by plea in abatement*. . Cady v. Eggleston, 11 Mass. R. '285. If the alteration was a material one, then the burthen of proof was on the plaintiff to'show that the alteration was made without authority. The presumption is, that an officer dpes his duty. He acts under oath, and his return is testimony. The plaintiff ¡adopts the alteration and goes to trial 'on the bond, which shows his assent, 'and the consent of the signers of the bond is to be presumed. Hunt y. Adams, 6 Mass. R. 522 ; 1 Stark. Ev. 376 ; 11 Johns. R. 5131 19 Johns. R. 345; 3 East, 192; 10 East,,216; Com, v. Stow, J Mass. R. 53 ; Lane v. Crombie, 12 Pick. 177.</p> <p>argued, that the alteration in the bond ,was a material one. It is the duty of the officer to take a good bond running to the creditor. .The creditor does not see it, until be finds it returned with the writ. Even altering the date of a .writ avoids it. Clark v. Lyman, 10 Pick. 45, It is said the liability is not changed by the alteration, They were not liable in .any way before the alteration, and that places them under a heavy responsibility. If a man is willing to be bound to one, it by no means follows, that he is willing to be bound to every one. This is not an exception to the general rule, that the affirmative is to be proved. We show that there is no valid bond, because the defendant took a bond to another person, and altered it to run to the plaintiff. His return might be evidence in a suit between third persons, but is none in an action against him. The bringing of the suit on the bond does not excuse the defendant from his liability. He proceeded until he found it was a forged bond, and then abandoned the suit. His actually recovering judgment on the bond would not have afforded any excuse to the defendant, if the obligors had been without property. Stat. 1821, c. 89, <§>5; Clark v. Lyman, 10 Pick. 45; Loomis v. Green, 7 Greenl. 386.</p>

Exceptions from the District Court for ■ the Middle District, Redington J. presiding.- The action was debt, commenced February 24, 1836.

Case against the defendant, a deputy sheriff, for refusal to pay over money received by him upon the sale of an equity of redemption in favor of Andrew Morse, jr. against Dawes Whitcomb. Dawes had mortgaged certain land to Andrew Morse, sen’r, and the equity was attached by Morse, jr. in the suit in which the judgment was recovered. After this attachment Dawes made another mortgage to the plaintiffs, which was immediately recorded.

Exceptions from the Court of Common Pleas, Redington J. presiding. This was an action of assumpsit on a written contract, dated Sept. 5, 1835, entered into between the plaintiff and a committee of the district, who were inhabitants thereof, by which the plaintiff undertook to build a school-house for the defendants in a particular manner therein specified, to be completed by November 1, 1835.

Exceptions from the Court of Common Pleas, Re.dington J. presiding.

Exceptions by the plaintiffs from the Court of Common Pleas, Redington J. presiding. The following is a copy of the survey bill referred to in the disclosure. “ Moscow, April 1,1836. Surveyed for Edward S. Moulton Of Co. of Saco, 103.342 feet of timber, hauled by E. Ford and J. Smith of Brighton, at 10s. 6d. per thousand — payment as follows — one third in June next, one third in September next, and one third in December next.

Exceptions from the Court of Common Pleas, Redington J. presiding. Assumpsit on two notes of hand, given to the plaintiff by the defendants Heald, Oragin and Witham, Oct. 9, 1835, as tho consideration of a bond of the same date, from the plaintiff to With-am, in which the plaintiff agreed to convey to Witham a tract of land on certain conditions. The bond is referred to as part of the case, but no copy of it is found in the exceptions, or in the papers in the case here.

Writ of error to reverse the adjudication of Rebington J. in the Court of Common Pleas, that one Andrews had his legal settlement in Guilford.

Exceptions from the Court of Common Pleas, March Term, 1839, Redington J. presiding. The action was originally commenced before a Justice of the Peace upon a note from the defendants to the plaintiff, dated Jan. 19, 1833, for thirteen dollars, payable in six months. After the action had been entered by appeal, in the Court of Common Pleas, it was referred by rule of that Court to referees, to be decided upon legal principles.

Replevin for certain articles of merchandize, which were claimed by the defendant, a deputy sheriff, by virtue of an attachment thereof as the property of William P. Kelley and Jonathan Jewell, on a writ against them in favor of one Sawyer. The plaintiffs claimed the property, because they alleged, that they had been induced to part with the possession of it by means of false representations made to them by Kelley Jewell, with intent to defraud them of the goods.

Replevin for a cow. The taking was alleged to have been on May 25, 1835. The defendant claimed the right to take the cow as his own property.

Debt by the plaintiff, as a fish warden of the town of Orringion, to recover of the defendants, owners of a fish weir in Penobscot River, for the penalties imposed by the stat. 1835, c. 194, for the preservation of fish in the Penobscot waters, for keeping the gate of the weir open at an unlawful time, and for taking fish at a time forbidden by the law.

The six defendants made their writing under their hands and seals, dated July 21, 1835, to Clark, in the penal sum of twenty thousand dollars, saying, “ to the which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, firmly by these presents.” A copy of the condition follows. “ The condition of the above obligation is such, that whereas for a valuable consideration, we have severally agreed with and promised the said Clark, that…

Exceptions from the Court of Common Pleas, Perham J. presiding. Assumpsit on' a note of hand. The facts in the case sufficiently appear in the opinion of the Court. The verdict was for the' plaintiff, and the exceptions were filed by the defendant. The argument was in writing. argued, 1. That the witness was interested, and not competent, unless the interest was discharged by the release. And 2.

<p>No person can use a deposition taken in perpetuam, unless it appears to have been taken at his request, or at the request of those under whom he claims.</p> <p>The Court will not in future enforce parol agreements in respect to the prosecution of a cause, unless made in writing.</p> <p>Whether such parol agreements heretofore made, shall be recognized by the Court as binding the parties, will depend upon the nature of the agreement, and the clearness of the proof by which it may be established.</p> <p>Where a deposition was taken in perpeluam, at the request of a third person, and the defendants in the cause on trial, were notified as the adverse party, and were present, and agreed with this plaintiff that the same deposition might be used in the present suit, and the deponent had deceased, the deposition was permitted to be used.</p>

Assúmpsit on a bill, dated April 14, 1836, payable to the defendant in four months from date, at the Suffolk Bank in Boston, arid by him indorsed to the plaintiffs. A demand was made at the Suffolk Bank on the 17th of August, 1836, and a notice immediately sent by the notary to the plaintiffs -for the defendant, which arrived, by due course of mail at tjiat time at Bangor, the place of business of-the defendant, on the morning of the twentieth of the same month.

Assumpsit by the plaintiff upon a receipt for property, attached' by him as a.deputy sheriff.

<p>Where a bill is left in a bank for collection, although the bank has no interest in it, yet for the purposes of making a demand, and of receiving and transmitting notices, they are to be considered the real holders.</p> <p>In the negotiation of this business, the cashier is the regularly authorized agent of the bank; and any communications affecting them, are properly addressed to him in his official capacity.</p> <p>A notary employed for that purposo by tlio cashier of a bank, to which the- . bill has been indorsed and transmitted for collection only, has sufficient authority to make a demand, and to give notice.</p> <p>If due notice of the presentment and non-payment of a bill be given to an. indorser, it is not necessary that he should also be notified, that the holder will look to him for payment.</p> <p>Where a bill which was drawn, acbepted and indorsed by residents of Bangor and made payable at a bank in Boston, was indorsed to a bank in Bangorr and by that bank indorsed and transmitted to a bank in Boston for collection,, and was by direction of the cashier of the latter bank duly presented there for payment by a notary, and notices thereof and of non-payment were immediately made out by him to all the prior parties, and transmitted by the first mail to th'e cashier of the Bangor bank; and where on the same morning the notices reached Bangor, the cashier took them from the post-office, and directed one to the indorser, then a resident of that city, and immediately replaced it in the post-office ; it was held, that as the notice came from the notary in Boston, that this mode of transmitting it was sufficient.</p>

<p>The action was assumpsit, and was "brought, as the report of the case states, to recover payments made upon a contract alleged to have11 been rescindéd. The writ.was dated.Now. 3, 1836. At the trial, before Shepeey J;, the plaintiff, read a's testimony an account between the parties, adjusted ,Sept. 15, 1836, showing, that the plaintiff had advanced to the defendánt- a large sum of money towards the building of'a steam saw-mill.. He introduced the copy of a mortgage deed from the defendant to John T. Goddard and C. W. Cutter, of one undivided half of the mill and- land connected therewith to secure to them the amount of $12,944,62, dated Oct. Í9, 1835 ; the copy of a deed dated July 3, 1836 from, the defendant to John T. Goddard of one fourth part of the same premises in trust to pay to the Portsmouth Iron Foundery Company a debt düé them ; the copy of a deed, dated Oct. 18, 1836, from the defendant to William Emerson, of one half of said premises, subject to the mortgage to John T. Goddard; the copy of a deed from the defendant to Emerson, dated Nov. 25, 1836, of the other half of the premises; subject to the mortgage to Goddard Cutter. He also introduced a bond, executed May 11," 1836, from the defendant to the plaintiff obliging him to convey to the plaintiff one undivided half of said steam-mill and privileges, when the same should be completed, and the amount of the cost ascertained, .and upon paying or securing to Mitchell, by the plaintiff one half of‘the costs of said steam saw-mill. Many letters between the parties were introduced, showing that the steam-mill was being built on joint account of plaintiff and defendant, and that the plaintiff was to own one half of it, when completed, and that the bond was executed for that purpose, and that the money advanced by the plaintiff was on that account. The defendant read an agreement signed by the plaiptiff, dated July 22, 1836, assenting to the conveyance of July 3, 1838, to John T. Goddard.</p> <p>Upon this testimony the plaintiff claimed to recover, because the defendant had disenabled himself to fulfil his contract by conveying away the whole estate, and the plaintiff therefore was entitled to rescind the contract. The defendant denied that the plaintiff had any claim upon him, without first performing on his part, according to the terms of the bond.</p> <p>The action was then taken from the jury by agreement of the parties, and submitted to the decision of the Court, and judgment was to be rendered for the plaintiff, or for the defendant, according to their legal rights.</p> <p>and cited Pan Benthvysen v. Crapser, 8 Johns. R. 257 ; Judson v. Wass, 11 Johns. R. 525 ; 5 Burr. 2639; Tucker v. Woods, 12 Johns. R. 190 ; Newcomb v. Brackett, 16 Mass. M. 161; 1 T. R. 133; Gillett v. Maynard, 5 Johns. R. 85; 2 W. Blacl<¡. R. 1078 ; Chambers v. Griffith, 1 Esp. R. 150; Chapman v. Shaiv, ,5 Greenl. 59 ; 1 Caines, 47; Farrer v. Nightingal, 2 Esp. R. 639; 2 Com. on Con. 52, 82; 1 T. R. 177.-</p>

The action was a writ of entry, and was referred by rule of Court in the usual form.

Assumpsit upon an agreement not under seal, of the following tenor. “ We hereby promise, covenant and agree to and with Amasa Hewins and Jotham Babcock to take up and fully discharge ten several notes of hand, given by said Babcock and Hewins to Waldo T. Pierce, or order, in May last, for the sum of two hundred and fifty dollars each, payable annually, with annual interest, and that we will save them, their heirs, executors and administrators from any and all costs and…

Exceptions from the Court of Common Pleas, Perham J. presiding. Replevin for two horses, a clock and seven beds and bedding therefor. The defendant in his brief statement alleged, that he was a deputy-sheriff, and that as such, on the 31th of March, 1837,. by virtue of a writ in favor of one living, against William X. Thomas, he attached the goods replevied as the property of Thomas, the true owner, denying the title of the plaintiff.

<p>Where the indorser of a note is notified of the demand and the default of the maker by mail, the notice must be put into the post-office on the day of the demand, or in season to be sent by the first mail of the succeeding day.</p> <p>A new trial will not be granted merely because the Judge in open Court, in presence of the counsel, answers in writing a written inquiry sent from the jury by the officer in attendance.</p>

Exceptions from the Court of Common Pleas, Perham J. presiding. Assumpsit to recover a sum of money for the labor and services of one Jeremiah Lowell, on the ground that Lowell was the apprentice of the plaintiff.

<p>If the writ is indorsed by one of two partners as attorneys at law in his own name, and there is no agreement to indemnify him, the other partner is not bound by the partnership relation to contribute towards any loss that may happen in consequence of the indorsement, and is a competent witness in the case for the plaintiff'.</p> <p>If the indorser of a note, when he knows that no demand has been made upon the maker, promises to pay it, he will be liable.</p> <p>But the plaintiff must proye affirmatively that the indorser knew that there had been no demand.</p> <p>Such knowledge cannot be inferred from the mere fact of the promise to pay.</p> <p>If it be proved that the indorser knew, at the time of the promise, that no demand had been made, it is to be presumed that it was done with a knowledge of his legal rights.</p>

<p>When two mortgages, dated and acknowledged at different times, are recorded upon the same day, their priority of registry must be determined by the record alone, and no parol evidence is admissible to show which was first received.</p> <p>The order in which the mortgages are entered upon the book of records, furnishes no evidence that one was received prior to the other.</p> <p>Where so far as it respects the record, the rights under two deeds are equal, the title under the one first made is not defeated or impaired by such registry of the second; but to give the second deed the priority, it must be first recorded.</p> <p>As the possession and production of a deed by the grantee, is prima facie evidence of its having been delivered; so if it be found in the hands of the grantor, the presumption arises that no delivery had been made.</p>

<p>The poor debtor act of 1835 do'es not allow, the service of the notice to the creditor to.be made upon the attorney, except when the creditor resides without the State. ' ,</p> <p>The statutes of 1839, upofi tiro same subject, make the notice effectual although issued by a Justice or by the party, but do not change the time, or manner of serving it, or the person upon whom service should be made.</p> <p>The return of an officer that he arrested the debtor on an execution on a certain day, and that he gave bond, must be considered as stating the day of arrest truly, until the contrary be made to appear.</p> <p>The fact that the bond bears date upon a different day affords no satisfactory proof that the return was wrong.</p> <p>Where the bond recites the amount of the debt, costs and fees, and is for double the amount thus stated, and there is no evidence that the statement is.not correct, the obligors are bound by their declarations.</p>

The question in this case was, wbetht - Nathaniel Treat, who’ had been1 summoned as the trustee of Thayer, should be charged upon his disclosure. Treat was indebted to Thayer, October 24, 1838, in about the sum of two hundred dollars. On that day Ludo Tháyér drew an order upon him of the following tenor. “ Orono, Oct. 24, 1838. Mr, N. Treat.

This was a bill for discovery in aid qf several suits at law, and for general relief. There was a prayer for an injunction to. restrain further proceedings at law On the part of the defendant in equity. The defendant filed a general demurrer.

Exceptions from the Court of Common Pleas, Peruam J. presiding. The action was brought by Hill, as administrator of the estate of Starrett, and the declaration alleged, that Penny on, &c. with force and arms broke and entered the close of said Starrett, who was then living, and being so entered cut down and carried away a large number of trees there standing and growing, and also took and carried away a large quantity of underwood lying on said land.

Exceptions from the Court of Common Pleas, Peeiiam J, presiding. Debt on a bond, dated Aug. 26, 1836, under the poor debtor act, to procure the release of Hatch from an arrest upon an execution against him.

Tins action was caso, and was originally commenced before a Justice of the Peace, and came before this Court upon an agreed statement of the facts. The plaintiff was sued for a pound breach by Horace Svencer and others, the writ having been made returnable before the defendant, as a Justice of the Peace for the county of Penobscot, Oct. 15, 1836.

The writ was dated June IT, 183T, served upon trustees the same day, and upon the defendant, Aug. 25, 183T, entered at the term of the C. C. Pleas, holden on the first Tuesday of October, 183T. The action was answered to at the first term, and no motion made or plea filed, and was continued from term to term, until the January Term, 1839, when the plaintiff’s counsel filed a motion to amend the writ by striking out the w.ord fourth, preceding the words Tuesday of October…

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

Exceptions from the (Court of Common Pleas, Pebham J. presiding. This action was assumpsit for money paid, laid out and expended, brought against Fislce, Bridge, Stetson and Brown to recover of them, as appeared from the bill of particulars, the increased value of a certain lot of land by buildings and improvements alleged to have been made by the plaintiff.

Exceptions from the Court of Common Pleas, Petihaji J. presiding. This was a petition for partition of a township of land, the petitioners claiming one third part, entered at tho January Term, 1837. The respondent came in, and at the January Term, 1838,. moved to dismiss the process, and on the motion being overruled, filed a plea of sole seizin of the premises, traversing the seizin of the petitioners, and filed the following brief statement.

Assumpsit upon a note signed by Giles Humphrey and Alexander Foster, as principals, and by the defendant as their surety. The suit was against Bartlett alone. The deposition of Humphrey, one of the principals in the note, who had left the State and was insolvent, was offered in evidence by the defendant. This was objected to because the deponent was interested.

Exceptions from the Court of Common Pleas, Redington J. presiding. Assumpsit for money had and received. It was proved at the trial that Messrs.

<p>Where the plaintiff bad agreed with his debtor to take a note payable in threo months to himself or to T. and afterwards gave an order on the debtor to “let A. (the defendant) have the note as we agreed for the balance duo me;” this does not as between them furnish presumptive evidence of an assignment of the demand to the defendant for value.</p> <p>If the defendant, on being sent by the plaintiff to take a note from his debtor in discharge of an existing demand, wrongfully takes the note payable to himself'and disposes thereof for his own use, the plaintiff may waive the wrongful act and claim to have the note delivered to him, and may maintain trover against the defendant for its conversion.</p>

<p>Exceptions from the Court of Common Pleas, Redington J. presiding.</p> <p>Writ of entry on a mortgage. The tenant, with the general issue, alleged in a brief statement, that he was not tenant of the freehold, but was tenant for a term of years.</p> <p>The demandant read in evidence a deed of mortgage from the tenant to himself, dated July 10, 1833, and recorded Sept. 17, 1833, of the same premises, to secure the payment of a note due before the commencement of the suit. It was admitted, that the tenant had been in possession during the whole time since the mortgage was given. The demandant here rested.</p> <p>The tenant then read in evidence a deed of the premises from himself to one Wilson, dated Aug. 26, 1836, and recorded before this suit was commenced. Pie also offered a lease of the premises for one year from the demandant to him, without date. The Judge inquired, if the tenant expected to show, that the lease was in force at the time of the commencement of the suit, and his counsel replied, that he did not, but merely that it was given after the mortgage. The Judge thereupon ruled, that it could not be admitted in evidence without proof, that it was a subsisting lease when the action was commenced. No other evidence was offered. ■The Judge instructed the jury, to find a verdict for the demandant, •and the tenant filed exceptions.</p> <p>contended, that the action could not be maintained, because it was brought against one who was not .tenant of the freehold. The case of Keith, v. Swan, 11 Mass. JR. 216, was decided without authority, and without any reasons for it, and is opposed to the whole current of authorities. Non-tenure is .a good plea when the action is on a mortgage, as well as in other cases. Olney v. Adams, 7 Pick. 31; Jackson on Real Actions, 90; Otis v. Warren, 14 Mass. R. 239; Dewey v. Brown, 5 Pick. 238; Hunt v. Sprague, 3 Mass. R. 312; Parlin v. Ma-.comber, 5 Greenl. 413; Prop. No. 6, v. McFarland, 12 Mass. R. 325.</p> <p>The lease should have been admitted in evidence. As the tenant remained after the year expired, he must be considered as holding from year to year. But whether the holding was to be considered for the year or not, having been in possession under a lease from the demandant, he was entitled to notice to quit; and until a reasonable time had elapsed, the action could not be maintained. Here the suit was commenced without any notice. Moshier v. Reding, 3 Fairf. 478; Brewer v. Knapp, 1 Pick. 332; Ellis v. Paige, ib. 43; 1 Cruise, 286; 3 Peters, 49; IT. R. 162; 5 ib. 471.</p> <p>insisted, that an action on a mortgage can be maintained against any one in possession. It is not necessary that it should be against the holder of the equity, who is the only person, but the mortgagee, who can be said to be tenant of the freehold. The case of Keith v. Swan, 11 Mass. R. 216 has been confirmed in Hunt v. Hunt, 17 Pick. 118; and may be considered settled law.</p> <p>The relation of landlord and tenant did not exist between these parties. Even had there been an existing lease, the conveyance by the tenant would have produced a forfeiture of it. Bennock v. Whipple, 3 Fairf. 346; Campbell v. Proctor, 6 Greenl. 12. The tenant could be nothing more than a tenant at sufferance, whp is not entitled to a notice to quit before the commencement of the suit. Davis v. Thompson, 1 Shepl. 209.</p>

Exceptions from the Court of Common Pleas, Redington J. presiding. Replevin for a quantity of board logs. The brief statement of the defendant alleged that the logs were taken by him as a deputy sheriff, and were then the property of one Sabin P. Jordan, and were seized on an execution in favor of one Bracy against the Narraguagus Log-driving Company, of which' Jordan was alleged to have been a member, and liable for the company debts.

Exceptions from the Court of Common Pleas, Redington J. presiding. Debt on a bond, dated May 29, 1834, given by Savage, as principal, and by the other defendants as his sureties, to John Dickinson, Treasurer of the town of East Machias, or his successor in office, conditioned, that Savage having been chosen collector of taxes for that town for the year 1834, should collect and pay over all taxes committed to him, ■ according to his warrants.

<p>In all actions upon bonds with a penalty, with a condition which provides for the performance of some covenant or agreement, under the additional act regulating judicial process and proceedings, stat. 1830, c. 463, the jury are to assess the damages sustained by breaches of the condition thereof.</p> <p>But where the condition of the bond is such, that it is to be void or is to he defeated upon the performance of some act or duty, the damages are to be assessed by the Court, under the provisions of the siat. 1821, c. 50,- giving remedies in equity.</p> <p>Bonds given in the common form under the poor debtor acts, are of the latter description, and damages arising from breaches thereof are to be assessed by the Court, unless in cases where the poor debtor acts direct such assess- ■ ment to be made by the jury.</p> <p>Where a debtor committed to prison on execution, obtained his release therefrom by giving a bond conforming to the provisions of the acts for the relief of poor debtors in all respects, with the exception that performance was to be made within a shorter time than the law required; and where the conditions were performed within the time required by law, although not within the time limited in the bond; it was held, that such bond was not valid as a statute bond, but was good at common law, and subject to chancery ; and that the measure of damages in an action by the creditor was the amount actually suffered by him.</p> <p>The judgment debt is not discharged by such proceedings.</p> <p>As the act authorizing exceptions to the decisions of the Court of Common Pleas in matters of law, does not require this Court to send the cause to a new trial in every instance where error is found, but only as “ law and justice may require;” if a Judge of the Common Picas erroneously submits to the jury the determination of the amount of damages, and they decide correctly, a new trial will not be ordered.</p>

Exceptions from the Court of Common Pleas, Redington J. presiding. Trover for a furnace used for warming a tavern house in Calais, called the Boundary House. The plaintiff entered into the occupation of the house under one Thompson, but before the expiration of the lease, and during the occupation of the house by the plaintiff, the defendant had become the owner subject to the lease. The lease under which the plaintiff entered, was dated May 5, 1836.

Exceptions from the District Court, for the Eastern District, Allen J. presiding. Assumpsit for labor done upon the schooner Coral.