Volume 18 — Maine Reports

Thr action was assumpsit, the writ bearing date June 23,1837, upon the following contract in writing. “Wo the six individuals undersigned agree to pay to Isaac Al-lard the sum of five hundred and fifty dollars, (each a sixth part) with interest, provided the said Isaac shall discharge the mortgage given by him of a piece of land in Bristol, in the county of Lincoln, (described) six sixteenths of which he has this day conveyed to us by his warranty deed, the said $550 being a…

<p>If one man builds a house on land of another by his permission, the house is personal property, and does not pass by the conveyance of the land to a third person, but remains the property of the builder.</p> <p>If the builder is not prevented from occupying or removing the house, he cannot maintain assumpsit therefor against the grantor of the land.</p>

The action was assumpsit, wherein the plaintiff alleged, that the defendant became surety for him to the amount of $39,07, and that he conveyed to the defendant, for security and indemnity, his farm, worth $700; that he paid the debt for which the defendant was his surety; that the defendant afterwards conveyed the farm to a third person; that he requested the defendant to re-convey the land, and that he wholly refused to convey to the plaintiff) and conveyed the land to a…

At the trial, the plaintiff, to prove the limits of the company, offered the doings of the selectmen of Swanville assigning limits to the company. The defendant lived within these limits, but he objected that the evidence w-as incompetent to prove the limits, because the two selectmen acted, when there was a third selectman, qualified to act, who for some cause, not assigned, did not act. The Justice overruled the objection.

<p>The enlistment of a minor under the age of eighteen years, into a company raised at large, is void, and to be regarded as if it had never taken place.</p>

<p>This was a writ of error, to reverse a judgment of a Justice of the Peace. The original action was brought by Fales, as ensign of a company in Thomaston, detailed under the provisions of the stat. 1837, c. 276, to discipline and train the B company of militia in Camden, alleged to have had no officers for three months, against Martin, for neglect to perform militia duty at a company training. There were twenty-three other suits brought by Fales before the same Justice, at the same time and place, for alleged neglects or misconduct at the same training. The writs were made returnable before James Cochran, Esq., at the house of Daniel Hotoard, in Camden, where the office of the Justice was alleged to be, on June 24, 1839. Cochran was a Justice of the Peace for the county, but did not reside within the town of Camden, and was not an inhabitant thereof. The twenty-four writs were returned to the Justice on the 18th of June, with a request that he would enter them for trial, and they were filed.</p> <p>On the record returned by the Justice, after a list of the actions, the following entries appear.</p> <p>“ There being great excitement in Camden and vicinity in regard to said actions, and being so informed, and believing the information to be correct, that a powerful armed force of somé one hundred strong, including the defendants, has been organized for the purpose of resisting the militia laws of the Stale, and to prevent, by force and violence, the holding of any Court on the twenty-fourth day of June instant to try said actions, I the said Justice, having been requested by citizens of the vicinity to do so, do postpone the trial of said actions to the eighth day of July next, at ten o’clock in the forenoon, in the belief, that before that time, some measures may be taken, that shall secure the parties a fair trial. And that this postponement shall operate no surprise or injustice to the parties, I have this day caused the following notices and proclamations to be posted up at the place of trial.</p> <p>Attest, James Cochran, Justice of the Peace.”</p> <p>“ All actions returnable before me in Camden, on the 24th instant, will stand postponed to the 8th day of July next, at ten o’clock in the forenoon. Parties and their witnesses will thereof take notice, and govern themselves accordingly.</p> <p>“ James Cochran, Just. Peace.</p> <p>■ “ June 22, 1839.”</p> <p>“ And said notices remained posted up, at the place of trial, until July 8th. James Cochran, Just. Peace.”</p> <p>“ Waldo, ss. July 8th, 1839. — 10 o’clock A. M. The parties appear by their respective counsel, and file the following agreement, to wit, That there may he a full and decisive opinion by the Supreme Judicial Court, on most of the points of objection made or to be made by the defendants, in the prosecutions for military fines of the members of the B company of infantry in Camden ; and in order to save costs, it is hereby agreed, that one of the defendants already served with process, whose case will present the chief points of objection, shall appear before James Cochran, Esq., on the 8th day of July instant, and there protesting that he is not liable to answer, because no justice was present at the time and place of trial on the return day of the writ, and that no proper postponement was had ; and if overruled on this point, 'shall proceed to trial; and it shall be the duty of the Justice to note and reduce to writing all legal points of objection made, and state fully, in writing, the testimony, and sign the same, or receive the written objections of the defendants’ counsel, and sign the same.” The agreement was dated July 1,1839, and further provided for the decision before the Supreme Court, and the disposition of the several actions, and was signed by the counsel of Fales, and of the defendants in the twenty-four actions. Martin’s case was selected for trial.</p> <p>On the eighth day of July, Martin appeared, and denied all power, on the part of the Justice, to take further cognizance, or have further jurisdiction over the action, and protested against all farther proceedings therein, and moved, in waiting, that the same may be stayed, for the following reasons, being the same after-wards assigned as the first four causes of error.</p> <p>1. Because said action was not entered by the plaintiff at the time and place at which his writ was returnable.</p> <p>2. Because the Justice, before whom said writ was returnable, on the 24th of June, neglected to appear at the time and place of trial, and open his Court, and organize the same.</p> <p>3. Because said action was not continued according to the provisions of the statute, passed February 15, 1834, c. 101.</p> <p>4. Because said defendant had no legal notice of the continuance of said action.</p> <p>The plaintiff opposed the motion, and offered to prove by numerous witnesses, that from the ,day of the service of the writs to the 26th of June, there had existed so much excitement and open hostility, in regard to said militia suits, in Camden, where said actions were returnable, that a Court, to try the actions, could not have been held on the 24th of June, with safety to the plaintiff,, his witnesses, and the magistrate. The introduction of this evidence was opposed by the defendant. The record states: — “I excluded and rejected the same, and the propriety of the postponement being, in my opinion, a question addressed to my judgment alone, at the time the same was made as stated in the foregoing copy from my records, and the. entry of the actions on my docket, and the postponement before the day of trial named in the writs, when by me deemed proper, being in accordance with the long practice of my Court, and, as I believe, in accordance with the usage and practice of most other Justice Courts in this section, I also overruled the defendant’s motion.”</p> <p>Other motions to dismiss the action, for other causes, were made by the defendant, and overruled, and many objections were made during the trial, all of which were overruled, and judgment was rendered against the defendant.</p> <p>Seventeen causes of error were assigned, and were argued by the counsel; but as the judgment was reversed without considering any excepting the first four, the facts and arguments pertinent to the last thirteen causes of error, are not given.</p> <p>1. A Justice of the Peace has no jurisdiction in civil actions, unless it is given by statute. As it respects this case, the power of the Justice depends entirely on the stat. 1821, c. 76. As the plaintiff did not attend Court and enter his action on the return day of the writ, it was a failure to prosecute his action, and the suit is at an end. Same stat. <§> 8.</p> <p>2. The neglect of the Justice to appear at the time and place appointed and open his court, on the return of the writ, takes away all power of the Justice to do it afterwards. Statute before cited; Hoive’s Frac. 198. The Justice has no right to enter an action before the time of trial. The parties may settle the action and it may never go before him.</p> <p>3. The act of the Justice in continuing the action on the 22d of June, two days before the time of trial, was entirely void. Prior to the statute of 1834, c. 101, there was an entire failure of a Justice Court, if the Justice before whom the writ was returnable, was not present at the time and place appointed in the writ. The Justice has no right to fix upon a different time and place for trial, by-proclamation, from that stated in the writ. That statute enables another Justice to appear at that time and place and continue the action. If the Justice selected, had too weak nerves to venture within the town of Camden and open his Court, any other Justice within the county would have gone there and have continued it to the eighth of July.</p> <p>4. The defendant was not bound tó look about the room for notices. If there w'as no Justice, he might well suppose there was no Court. Had he seen the paper, it would have been but notice of an illegal and void act, of which the defendant was in no way under the necessity of taking notice.</p> <p>contended, that when the writs were served and returned to the Justice, he had jurisdiction of tho actions, might enter the same at the request of the counsel for the plaintiff, and that having jurisdiction, tho after proceedings in the adjournment of the time, was but the exercise of a sound legal discretion. This may be done as well before the time fixed in the writ for holding the Court, as at that time.</p> <p>But if there can be doubt about the right in ordinary cases, the extraordinary circumstances attending this case justify the course adopted by the Justice. The defendant, in the original action, was himself one of the armed force organized to resist the laws, and prevent the trial. He cannot take advantage of his own wrong, and set the laws at defiance with impunity. Besides, his appearance and going to trial, on the eighth day of July, cures all previous irregularity, if any existed. The Court has the power to. protect itself, and to do justice, notwithstanding the forcible resistance of a party and his adherents.</p> <p>The statute of 1834, c. 101, has no relation to a case like this. Tho same difficulty would exist in going there to adjourn the Court, as in going there to hold it.</p>

Exceptions from the Court of Common Pleas, Peri-iam J. presiding. This was a complaint under the bastardy act. The complainant made her declaration before a magistrate, June 30, 1837, alleging that the child was begotten on or about October 20, 1836, in the house of one Barak Payson. The child was born August 11, 1837. After the preliminary proof, the complainant herself was offered as a witness.

The action was trespass on the case, to recover damages, alleged to have been done to the plaintiffs’ land, and to the fences and growth thereon, by the negligence of the defendant in setting a fire on his own land, near to the land of the plaintiffs, and in not carefully keeping the same. At the trial before Emery J., evidence was introduced by both parties.

Assumpsit to recover the amount of dividends on shares owned by the plaintiff in the corporation. At the trial before Shepley J. it was proved that the plaintiff owned the shares, that the dividends had been declared, that a demand for them had been made, and payment refused, because they were said to have been under an attachment on a suit instituted by Davis &f Marwick vs. The Georgia Lumber Company.

<p>The demandant claimed dower in about ten acres of land in Westbrook, as widow of Joshua Thoms, formerly her husband. The demandant was married to Thoms, September 17, 1820. On the last of December, 1830, she was married to James Cochrane. Noah Harding and Jonathan Morgan levied their respective executions upon the demanded premises, then in the possession of Joshua Thoms, as his property, on June 21, 1827, and the tenant claims under these levies. The demandant offered no other evidence to prove a seizin in Thoms, and the tenant showed no title but under these levies. Joshua Thoms left this part of the country in the beginning of the year 1828, and there was much testimony introduced by the respective parties, all of which was set forth in the report of the case, front which the demandant contended, that she had proved the death of Thoms to have taken place long before her second marriage, and from which the tenant inferred, that Thoms was still alive, or that the balance of evidence was in support of his inference, and at all events, that he was alive when the second marriage took place. The character of this evidence will sufficiently appear in the instructions to the jury, by Emery J., who presided at the trial.</p> <p>The counsel for the tenant contended, at the jury trial, that there was no legal evidence that Joshua Thoms was seized of the demanded premises during the coverture, so as to entitle the demandant to dower. The Judge instructed the jury, that there was legal and sufficient evidence of such seizin.</p> <p>The tenant’s counsel also contended, that there was no evidence of the death of Joshua Thoms. On this point, the Judge intructed the jury, that it was a question of fact purely, for them to determine. The burthen of proof was on the plaintiff, to give the jury reasonable satisfaction that the said Joshua was dead. If she had failed to do it, their verdict must be for the defendant. That the presumption in favor of his being alive, remains, unless from circumstances and evidence a contrary presumption arises; that they would consider his character, health, habits, and intentions, when he left, as made known in evidence ; that he was bound, as he professed, south, among strangers; that, after being absent twice before, he had returned; that he said he meant to change his name ; that in the fall after he went away, which was in February or March, a report existed of his death ; that in the family he was reputed to be dead; that he was much attached to his children, promised to send aid to them, promised both his brothers to write to them, to one if he lived; that no letter or message from him has been received by any of the family. That the circumstances testified by Mrs. Paine, Mrs. Osgood and Benjamin Thoms, if believed, the length of time which has elapsed, was all together prima facie evidence to raise a presumption of his death. It is liable, to be repelled ; and they would consider how far it is so, or affected by the testimony of Nathaniel Thoms, another brother. The law does not require, that some person is to be produced, to swear, that he or she saw the said Joshua Thoms die, or saw him dead.</p> <p>It was also contended by the tenant, that there was no evidence of the death of Joshua Thoms when the demandant married Cochrane, and that by marrying him, as she did, it was an act of adultery on her part, whereby she forfeited all right of dower in Thoms’ estate, if she ever had any. On this point, the Judge instructed the jury, that unless they were satisfied, from the evidence, that said Joshua was dead before the plaintiff married Cochrane, she certainly had committed adultery by that act; that by the ancient common law, neither adultery nor elopement were ,a bar to the claim to dower. Elopement is, where a married woman departs from her husband, and dwells with an adulterer, provided she does so voluntarily ; and for this, without reconcilement to the husband, she will lose her dower; that this was the provision of the statute of Westminster 2d, c. 34, which was now the law in this State. There could be no pretence of reconciliation in this case, for the husband had never returned since the second marriage. It was anciently holden, that if the relatives of the husband keep him from his wife, so that she does not know what has become of him, and give out that he is dead, and thereupon procure her to release all marriages and interest which she can have in him as her husband, and also persuade her to marry again, which she does, with one who has notice that her first husband is alive, but she herself has no notice of it, though she live in adultery with this man, and though her husband be not out of the realm or beyond the seas, yet because she did not leave her husband voluntarily, as the statute says, but by persuasion of his friends, not knowing of herself but that he was dead, this is no such elopement as will bar her of her dower. The Judge further instructed the jury, that if they were satisfied, that the report of the said Joshua’s death was previous to the second marriage, fairly made to the friends and connections, and not fabricated for the occasion, but honestly by her and the family believed to be true at the time of said second marriage, the plaintiff could not be considered as having eloped with the adulterer, and would not, by that circumstance alone, forfeit her dower; but that the jury must be satisfied of his death before a verdict could be rendered for the plaintiff; and that the law considered the claim to dower was a favored claim.</p> <p>The jury returned a verdict for the demandant, which was to be set aside, if the instructions were erroneous.</p> <p>argued in support of the propositions contended for at the jury trial, and cited Stearns on Real Actions, 279; 1 Phil. Ev. 152; 6 Bingham, 135.</p>

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. The action was assumpsit, to recover for the use and occupation of two sevenths, in common and undivided, of a dwellinghouse, lot, and appurtenances, occupied and improved by the defendant, and situated in Portland.

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

Debt upon a bond given to the Judge of Probate, by Cummings, on being appointed administrator of the estate of Jo/m Stevens, deceased. There was an indorsement upon the back of the writ, stating, that the action was brought for the benefit of Robert Leighton, but it was not stated in the writ, that the suit was brought in the name of the Judge of Probate for the benefit of Leighton, and for this cause the defendants moved that tbo writ be abated.

Tins was an action of the case, for the neglect of Charles Hapgood as a deputy of the defendant, who was alleged to have been the late sheriff of the county of Washington, in not paying over the amount of an execution in the plaintiff’s favor, against The Proprietors of the Calais Temperance Mouse, the writ having been sued out July 28, 3838, wherein the amount and thirty per cent, interest wore claimed.

Exceptions from the District Court for the Western District, Whitman J. presiding. This was an action on the case, brought to recover damages for an injury done to the plaintiff's horse by defects in a road within that town. The plaintiff proved, that his horse sustained an injury, when passing over a public highway, June 24, 1887, within the town of Falmouth, leading from Portland into the country, and much travelled.

<p>The indictment alleged, “ that there is now, and long before, and at the time of the obstruction and nuisance herein after mentioned, there was a town and private way in the town and city of Portland, leading,” &c. “ which said town and private way is, and for a long time past, has been, known by the name of Lime Street, for all the inhabitants and citizens of said town and city to go, return, pass and repass in and along the same, at their will and pleasure,” and that Sturdivant had created a nuisance in that street, by erecting and continuing a fence therein. At the trial before Shepley J., there was testimony tending to prove, that the street had been travelled and used as a street, for more than twenty years before Sturdivant removed his fence more westerly into the street.</p> <p>The jury were instructed, that if they were satisfied, from the testimony, that the street bad been so travelled and used as a street, for more than twenty successive years before the removal of t]ie> fence, that it thereby becanie a public street, whether so laid out or not, and that the defendant could not afterw'ard legally remove the fence into the street.</p> <p>There was some testimony tending to prove, that the street had been dug up and extended easterly so as to be the occasion of throwing down the fence of the defendant for a portion of the distauce where il had been removed more westerly than it formerly stood, but it did not appear by whose authority this was done; The counsel for the defendant contended, that if the incumbrance or nuisance had been abated since the finding of the indictment, if could no longer be maintained. The jury were instructed, that no such question could arise for their consideration, unless they were satisfied, from the testimony, that the whole of the incumbrance which existed at the time of finding the' indictment, had been abated or removed, and that it had been done by some one having competent authority. The verdict of guilty was to be set aside, if the jury were erroneously instructed.</p> <p>That the first instruction of the Judge to the jury was erroneous. The indictment is for erecting a nuisance on a town and private way. The authorities clearly show, that a grant of a public highway, may be presumed by User by the public for twenty years, and that a record of the establishment of a public highway, may be presumed by user by the public for more than twenty years^ but that neither grant nor prescription is to be presumed by any user whatever, in favor of a town or private way. If the charge in the indictment had been, the erecting of a nuisance upon a public highway, the instruction would have been correct; but being applied to erecting a nuisance upon a town or private way, it is erroneous. Com. v. ■ JSIcivbury, 2 Pick. 51; Com. v. Low, 3 Pick. 408; Howard v. Hutchinson, 1 Fairf. 335; Dennett v. Hopkinson, 2 Shepl. 341 ; Stedman v. Southbridge, 17 Pick. 162. Our statute being a transcript of that of Massachusetts, the decisions there are equally applicable' here.</p> <p>The acquisition, by a town, of a right of way by grant, or by such user as presumes a grant, creates a mere private way, and a nuisance on a private way, so created, is not indictable. Com. v. Low, 3 Pick. 408. The town ways and private ways content plated by the twenty-sixth section of the stat. of 1821, c. 118s, concerning highways, are town ways and private ways laid out agreeably to the provisions of the ninth section of the samé' statute.</p> <p>said, that the points now raised, were not made at the trial. There was an attempt to show a laying out of the street by law, and failing in that, testimony, to' show a way by prescription, was introduced and admitted. No reference was made to the indictment, and the distinction now set up was not then taken.</p> <p>There is, however, no ground for the distinction. The regular laying out of a highway or town way, may be presumed from its having been used as such for twenty years. Gayetty v. Beihune, 14 Mass. R. 49. The way is public for the usé of all travelers, and not a mere personal privilege of the inhabitants of Portland. This has been so held by our own Court. The case Todd v. Rome, 2 Greenl. 55, decides, that proof of the user of a town road for twenty years, is sufficient for the jury to presume, that a road was laid out, and to subject the town to all the legal consequences attendant upon injuries occasioned by obstructions therein, for which the town is responsible. The Com. v. Newbury is merely the case of an obstruction of a foot path acquired by certain individuals by prescription ; the mere violation of an individual right.</p> <p>Wherever a public way is obstructed, whether town or county, an indictment lies ; but where it is the infraction of a mere private right, it does not. Stedman v. Southbridge, 17 Pick. 162.</p>

This was a writ of error to reverse a judgment of a Justice of the Peace, in an action of debt, brought by True, as clerk of a company of militia in Poland, for the non-appearance of Valentine at a company training. The facts are given in the opinion of the Court. The judgment was, that Valentine should pay a fine and costs. The errors assigned were — 1.

as indorser of a writ, sued out against the present plaintiffs in favor of one. Coffin, described as of Qrono, in the county of Penobscot, wherein they recovered judgment against Coffin- for their costs. The defendant demurred to the declaration, and the plaintiffs joined in demurrer. The writ of scire facias recites the judgment and execution, and states that it was given to an officer of the county .where Coffin lived, who made the following return thereon. “ Penobscot, ss.

<p>Trespass quart clausum for cutting grass. The parties agreed upon a statement of facts, from which it appeared, that the land on which the grass was cut, was formerly the property of one Brown, and that while owned by him, a road was legally laid out over.tbe land in controversy. After this, Brown conveyed the land on one side of the road to the plaintiffs, and on the other to the defendants, bounding both of them on the road. Subsequently the road was legally discontinued. The other facts appear in the opinion of the Court.</p> <p>contended, that the respective grantees of Brown took to the centre of the road. But if the respective grants were limited by the side of the traveled path, the case shows that the defendant cut grass over the traveled path, on the plaintiff’s side. Lunt v. Holland, 14 Mass. R. 149 ; King v. King, 7 Mass. R. 496 ; 3 Kent, 433 ; Jackson v. Hathaway, 15 Johns. R. 447; Peck v. Smith, 1 Conn. R. 103; Tyler v. Hammond, 11 Pick. 193.</p> <p>contended, that the grant in this instance excludes the traveled part of the road; it bounds them on a certain specific line, the side of the traveled path. Where the language excludes the road, as here, the road does not pass. Tyler v. Hammond, 11 Pick. 193. Running the line upon the traveled path, excludes it. The case does not show that the cutting was beyond the traveled path.</p>

Assumpsit against Emery, Stimpson, and Buxton, on an alleged promise to indemnify the plaintiff for attaching, as deputy sheriff, a stock of goods, in the possession of one Lawrence, as his property, on a writ against him in favor of Emery and Stimpson. Emery was defaulted.

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. Assumpsit on an instrument, of which the following is a copy; “ Memo. Due to John C. Gore seven hundred ten dollars for seventy-one shares in the Androscoggin Canal and Mill Company.

Trespass de bonis asportatis for taking and carrying a printing press, types, and articles used in a printing office, particularly described in the writ. The defendant justified the taking as a deputy sheriff, on the 16th day of June, 1837, on a writ in favor of Francis O. J. Smith, for an alleged libel upon him, published in the Portland Daily Courier, June 15, 1837, against E. G. Waterhouse, alleging the property to have been, at the time of the taking, in Waterhouse.

This was a writ of error to reverse the proceedings on a complaint for the removal of William Strickland and Mary Strickland, as paupers, from Standish to Gray. The complaint and warrant were dated April 27, 1838, and was duly served upon the town of Gray, April 28, 1838.

The action was assumpsit on a receipt for a quantity of board logs, attached by Jonathan Burr, a deputy of the plaintiff, then United States marshal for the Maine district, as the property of William Lewis, on a writ against him.

Assumpsit against the defendant, as indorser of three promissory notes, of which, one was dated May 5, 1836, given by William McLellan to the defendant, and indorsed by him and by J. W. Appleton, for $1200, payable in sixty days; another dated May 14, 1836, for $250, payable in sixty days, given by McLellan to the defendant, and by him indorsed; and the third dated June 9, 1836, for $75, payable on demand, made by McLellan, payable to Smith, the defendant, and indorsed by…

Exceptions from the District Court, Whitman J. presiding. This was a writ of entry on a mortgage. The facts in the case sufficiently appear in the opinion of the Court.

Trespass quare clausum, for breaking up the plaintiff’s dam and floom in Cape Elizabeth.

<p>This case came before the Court on a statement of facts. The action was debt on a jail bond, dated June 18, 1838, given by (S'. IV. J. Freese, as principals, and by It. TV. Freese, as surety, to the plaintiffs. The condition of the bond recited, that S. W. J. Freese had been arrested on an execution issued on a judgment in favor of the plaintiffs, a corporation established by the laws of Massachusetts to do business in the city of Boston, at the Court of Common Pleas for the county of Penobscot, at the March Term, 1838, for $86,95, debt, and $8,70, costs, against the principals in the bond, and was in the usual form of such bonds. On October 1, 1838, the debtors made application to a justice of the peace for the county of Penobscot, requesting him to cite the plaintiffs to appear before two justices of the peace and of the quorum, at a place stated, on October 20, 1838, to attend to the disclosure of the debtors, &c. On this application, notice was given to the attorneys of the creditors, in this State. No notice was given on the application of the jail-keeper. At the time and place appointed, the debtors appeared before the justices named in the notice, and such proceedings were had, that the justices certified that, having examined the notice and return, and having found them to be correct, they, after due caution, administered th© poor debtors’ oath to the debtors, and issued their certificate of discharge. This certificate was duly filed with the jailer of the county of Penobscot.</p> <p>The parties agreed, that if, on the facts, the Court should be of opinion, that the plaintiffs are entitled to recover, judgment was to be rendered for the plaintiffs, with legal damages and costs; and if not, the plaintiffs were to become nonsuit.</p> <p>The case was submitted for the opinion of the Court, on the briefs of the counsel.</p> <p>The provisions of the statutes of 1835, c. 195, and of 1836, c, 245, were not complied with by the debtors,, and there was consequently a breach of the bond declared on, and the plaintiffs are entitled to recover, as damages, the amount of the execution, and costs, and fees, and costs of commitment, with twenty-five per cent, interest.</p> <p>“Where the only notice to the creditor was issued by a magistrate, on the application of the debtor, without any from the prison-keeper, the justices have no jurisdiction or power to administer the oath, and their doings are illegal and void.” Knight v. Norton, 3 Shepl. 337.</p> <p>The statute is peremptory, that in all cases where there has been a breach of the condition of the bond, taken under the provisions of that statute, the measure of damages shall be “ the amount of the execution, and fees, and costs of commitment, with interest thereon at twenty-five per cent.” Nothing intervenes, unless operation is given to the statute of 1839, c. 366. This statute is retrospective, and intended to be so, and cuts off the right to a verdict and judgment for those sums, unless the damages should amount thereto. The, breach of the bond was prior to the passing of this act.</p> <p>A retrospective statute is inoperative and absolutely void, and the intention of the legislature to make it retrospective, cannot alter the case, or make it operative or valid. Dash v. Van Kleeck, 7 Johns. R. 477, cited with marked approbation in Hastings v. Lane, 3 Shepl. 134; 2 Mod. 310; 2 Insii. 292; 2 Lev. 227; 4 Burr. 2460; 1 Bay, 179; 3 Dali. 386; 2 Cranch, 272; 6 Bac. Ah. 370; 1 Bl. Com. 44; Co. Litt. 360, (a); Blanchard v. Russell, 13 Mass. R. 17; Call v. Hagger, 8 Mass. R. 423; Story’s Com. on Con. $ 712; Betts v. Bagley, 12 Pick. 572; Lewis v. Webb, 3 Greenl. 326; Bowdoinham v. Richmond, 6 Greenl. 112; Durham v. Lewiston, 4 Greenl. 140; Somerset v. Dighton, 12 Mass. R. 385.</p> <p>Our defence depends upon the constitutionality of the st. 1839, c. 366. The effect of this statute, is simply pointing out a mode of notifying the creditor, and adopting it as valid, except that the plaintiff may recover any damages he has sustained by a breach of the bond, which damages shall be assessed by the jury. The statute allows the party to recover all damages sustained. It is only changing the remedy, and does not destroy the right of action, and is constitutional. Baxter v. Taber, 4 Mass. R. 361 ; Walter v. Bacon, 8 Mass. R. 468; Patterson v. Philbrook, 9 Mass. R. 153; Holbrook v. Phinney,4 Mass R. 566; Bacon v. Callender, 6 Mass. R. 303 ; Potter v. Sturdivant, 4 Greenl. 158 ; Thayer v. Seavey, 2 Fairf. 284 ; Wellington al. Pet., 16 Pick. 95.</p>

<p>Exceptions from the District Court for the Western District, Whitman J, presiding,</p> <p>The action was originally brought before a justice of the peace, to recover the sum of $>7,62 and interest, the amount of a tax upon certain lands of the plaintiff, claimed by the defendants to be within their town. The objection to the legality of the tax, was founded upon the allegation, that the land taxed was not in Cumberland. The spec, act of 1821, c. 78, § 8, incorporating the town of Cumberland from a part of North Yarmouth, provided, “ that all persons dwelling on lands adjoining the division line described in the first section of this act, shall have liberty to belong, with their lands adjoining said line, to which of said towns they may elect; provided they make their election in writing, describing such lands, and file the same in the office of the Secretary of State, within ninety days from the passing of this act.” If no election was made in this case, the land was on the Cumberland side of the line.</p> <p>The facts are sufficiently stated in the opinion of the Court.</p> <p>The plaintiff contended, that the right of election was given by the statute to the person who was the real owner of the land ; that the request made by Joshua Blanchard to William, in 1795, to purchase the land of Waite and others, and his agreement to exchange the ten acres for seven, was an admission of the title of Waite and others, and amounted to a consent on his part, to hold what he occupied on the gore as tenant to William; until the agreement to exchange should be carried into effect, and as there was no evidence that he afterwards pretended to hold adversely to William, till the year 1804, or that he ever denied William’s title to the land, the right of election was in William, and that he, having rightfully made his election, the whole gore was a part of North Yarmouth.</p> <p>The judge ruled, and instructed the jury, that in order to determine who had the right of election, they had only to inquire, who was the visible, open, and apparent owner, at the time of the passage of the act; that if Joshua was acknowledging William as his landlord, or paying him rent, so that William could have a constructive possession at the time, he would have the right to make the election ; but if Joshua did not acknowledge William as his landlord, and was holding adversely to him, and would not suffer him to occupy, and had done so for any considerable time, though for a less period than twenty years, so that William could not be considered as having actual or constructive possession of the premises at the time —■ in that case, William could not be considered as having the right to make the election, and it was therefore void. The verdict was for the defendants, and the plaintiff filed exceptions.</p> <p>and cited Spec. st. 1821, c. 78, <§> 8; Richards v. Daggett, 4 Mass. R. 534; Cumberland v. .Prince, 6 Greenl. 408; Ken. Pur. v. Springer, 4 Mass. R. 416; Norcross v. Widgery, 2 Mass. R. 506; Com. v. Dudley, 10 Mass. R. 403; Porter v. Hill, 9 Mass. R. 34; Little v. Libby, 2 Greenl. 242; Ken. Pur. v. Laboree, ib. 275; Porter v. 'Hammond, 3 Greenl. 188.</p> <p>but did not cite authorities.</p>

<p>The action was covenant broken, on a deed of the testator, Archelaus Lewis, conveying certain real estate. In the Supreme Judicial Court, the action was referred by rule of Court in common form. The referees awarded, “'that the plaintiffs recover against the estate of the said testator, in the hands of the defendants the sum of fifteen hundred dollars, with costs of reference. This report is, however, subject to the decision of the Court upon the question of law raised by the defendants. It appeared, that they were appointed executors in March, 1834, and duly gave bond and notice of their appointment as by law provided, and that this action was not commenced till October 30, 1838. The defendants contended, that as at law they were not bound to answer to any suit commenced against them after the lapse of four years next after the time of their appointment, it was not competent for us, as referees in this case, to proceed further. But we ruled, that we were not, on this ground, precluded from hearing the plaintiffs on the merits of their claim ; and determined, that if they should appear to be well grounded therein upon principles of equity, the award should be made in their favor. If in our decision in this particular we erred, we award that the defendants recover of the plaintiffs their costs of reference.” The report was returned into Court when holden by Shepley J., who ordered the report to be accepted, unless it should be the opinion of the full Court that the same ought not to be accepted because the referees have decided to allow the claim contrary to lawr. To this ruling of the Judge the defendants excepted.</p> <p>contended, that the st. 1821, c. 52, $ 26, was a complete bar to the action; that it was the duty of an executor or administrator to oppose the statute against all claims barred by it; that the promise of the executor, to pay the debt, would not bind the estate, as the statute was made for the benefit of heirs, as well as executors and administrators; and that no license could be obtained to sell real estate for the payment of such claim. Brown v. Anderson, 13 Mass. B. 201; Parsons v. Mills, 1 Mass. R. 431; Same parties, 2 Mass. R. 80; Ex parte Allen, 15 Mass. R. 58; Thompson v. Brown, 16 Mass. R. 172; Emerson v. Thompson, ib. 429; Scott v. Hancock, 13 Mass. R. 162; Dawes v. Shed, 15 Mass. R. 6.</p> <p>The whole law on the subject before the referees, was submitted for the revision of the Court. But if they did not so intend it, the referees exceeded their jurisdiction in doing away the provisions of the statute, and for that cause, the report should not be accepted.</p> <p>contended, that the only question, submitted by the referees to the opinion of the Court, was, whether they had power to decide in favor of the plaintiffs, if justice required it, and not whether they did right in so doing.</p> <p>It is a general and unlimited rule, that executors and administrators have a right to enter into a rule of reference to bind the estate. Coffin v. Cottle, 4 Pick. 454. Referees have power to decide both law and fact, and their decision is final, unless they specially refer a question of law for the decision of the Court. Coffin v. Cottle, before cited ; Forseth v. Shaw, 10 Bdass. R. 253; Bigelow v. Newell, 10 Pick. 354 ; North Yarmouth v. Cumberland, 6 Greenl. 21 ; Parsons v. Hall, 3 Greenl. 60; Bacon v. Crandon, 15 Pick. 79,</p> <p>When the administrators, or executors, have conducted themselves properly, the Court will grant license to sell real estate, if necessary. Richmond, Pet’r, 2 Pick. 567 ; Noiuell v. Bragdon, 2 Shepl. 320.</p>

<p>McDonald, on August 21, 1838, was arrested on an execution in favor of the plaintiffs against him, and committed to jail, and there remained until the twenty-third of August, when he was released upon giving a bond with surety, in the common form of poor debtors’ bonds, dated on that day. The present suit is on that bond. On the day of the commitment, and before giving the bond, the debtor applied to the jailer, and the jailer to a magistrate, w’ho issued his notice to the creditors, W'hich was duly served the same day, citing them to appear at the prison, on the fifth of September, then' next, to attend to the disclosure of McDonald. On the fifth of September, at the time and place appointed in the notice, McDonald appeared before two justices of the peace and of the quorum, and was by them examined and discharged, on taking the poor debtor’s oath, and a certificate of his discharge was left with the jailer. No notice was given to the creditors after the bond was signed. The condition of the bond is found in the opinion of the Court. If the plaintiffs were entitled to recover, the defendants were to be defaulted ; if otherwise, the plaintiffs were to become nonsuit.</p> <p>cited Harrington v. Donnie, 13 Mass. It. 93; Knight v. Norton, 3 Shepl. 337; Slasson v. Brown, 20 Pick. 436.</p> <p>cited Black v. Ballard, 1 Shepl. 239; Cordis v. Sager, 2 Shepl. 475; Agry v. Betts, 3 Fairf. 417 ; Hayward, Pet., 10 Pick. 358 ; Haskell v. Haven, 3 Pick. 404; Bond v. Cutler, 10 Mass. R. 419; Gage v. Gannett, 11 Mass. R. 217 ; Manly v. U. M. &f F. Ins. Co., 9 Mass. R. 85; White v. Crawford, 10 Mass, jft. 183.</p>

<p>Assumpsit on a "promise of the defendant, to pay and deliver to the plaintiff, on demand, at Portland, 130 casks of lime. A demand for the lime was made August 10, 1839. The plaintiff offered in evidence a note, which had been assigned to him, of which a copy follows: “For value received I promise to pay T. W. Pettengill or order, one hundred and thirty casks of Thomas-ton lime on or before the first of July. Portland, May 4, 1839. Jer’A Berry.” The plaintiff also produced and read letters from the defendant to him, bearing date July 23d, and August 10th, 1839, the substance of which is found in the opinion of the Court. It was agreed, that on the first of July, 1839, lime was worth, at the wharves in Portland, ninety cents per cask, and that after August 10, 1839, it was worth one dollar and twenty-eight cents per cask, and that the plaintiff paid that sum therefor. A verdict was taken by consent for the plaintiff, for $ 167,66, being at the rate of $1,28 per cask, on which judgment was to be rendered, if the plaintiff was entitled to that sum ; but if not, the verdict was to be set aside, and judgment entered for such sum as the Court should direct.</p> <p>and cited Matthews v. Houghton, 2 Fairf. 377; Mowry v. Todd, 12 Mass. It. 283; Hatch v. Spear-in, 2 Fairf. 354; 7 Har. &/• J. 213 ; 3 Har. J. 441 ; 4 Bar. Sf J. 351; Lang v. Fiske, 2 Fairf. 385; Crockery. Whitney, 10 Mass. R. 319; Skinner v. Somes, 14 Mass. R. 107; Jones v. Witter, 13 Mass. R. 304 ; Jenkins y. Brewster, 14 Mass. R. 291; 1 Bane, c. 1, art. 7, <§. 15; Attwood v. Clark, 2 Greenl. 253 ; 1 Peters, 455 ; 4 Rand. 346 ; Greenwood v. Curtis, 6 Mass. R. 358 ; 1 Bay, 423.</p> <p>and cited Gainsford v. Carroll, 2 B. fy Cr. 624 ; Gray v. Portland Bank, 3 Mass. R. 364 ; 1 Bane, 544.</p>

Exceptions from tho Western District Court, Whitman J. presiding. Tho action was brought against the defendant, who had been sheriff of the county of Cumberland, for the default of Sawyer, one of his deputies, in not keeping and delivering a quantity of boards and board logs, attached by Savnjcr on a writ in favor of the plaintiffs against ‘Seal and Bailey.

<p>Where the question is, whetlior the vendee of personal properly shall hold it, or whether it shall he subject to the attachment or seizure of a creditor of the vendor, upon the ground that the sale was fraudulent, the interest of the debtor or vendor is balanced, and he is a competent witness for the vendee or his assignee.</p> <p>And if the vendor be made the agent of the vendee in managing the property, still lie is a competent witness.</p> <p>There is no legal objection to the employment of the mortgagor as the agent of the mortgagee.</p> <p>After tho making of a mortgage of personal property, an arrangement, whereby tiie mortgagor is to continue in possession of the property as agent of the mortgagee, no visible alteration as to the property taking place, is not, in itself, prima facie evidence that the mortgage was fraudulent, but is onl)r evidence to go to the jury iu determining the question.</p> <p>Possession of personal property by an agent is the possession of the piincipal.</p> <p>The mortgagee of personal properly may maintain trespass against an officer, seizing or attaching the same as the properly of the mortgagor, without first giving notice of his claim to the officer, or stating his account of the amount due on the mortgage, and without any refusal or neglect of the officer to pay his demand and discharge his lien. Under the sí. I8bh, c. 188, it is the duty of the officer, first to make his demand in writing.</p> <p>The law' docs not require, that when the vendor is made agent of the vendee, he should declare or make known his agency. Ills failing to do so, may he evidence before the jury to prove fraud, but from its omission, the Court are not bound to declare the sale to be fraudulent.</p>

Daniel D. Smith, of Boston, on the 22d of April, 1836, being sole owner of brig 31ary Mart, conveyed, by absolute bill of sale, one half the brig to Samuel Tarbox, of Westport, in Massachusetts, for the alleged consideration of $1,100, to secure a note from Smith to him, of $701,40; and Tarbox, at the same time, and as a part of the same transaction, gave back to Smith a bond, conditioned, that as the bill of sale was made as collateral security for the payment of the note,…

From the statement of facts agreed by the parties, ic appeared, that the suit was against the defendant, as indorser of a paper, of which a copy follows. “ Portland, March 27, 1837. For ^1500. On the first day of May next, for value received, pay to the order of O. B. Dorr anee, fifteen hundred dollars. William W. Woodbury.” This was addressed to the cashier of the City Bank, Portland, and indorsed in blank by Dorrance.

The action was on a note, dated September 28, 1835, for' $600, given by Page to Amos Lunt, of whose estate Molleen is executor, payable in two years, with interest annually. The facts appear in the opinion of the Court, and in the foregoing abstract of the case. citing Tucker v. Randall, 2 Mass. R. 283 ; Estabrook v. Moulton, 9 Mass. R. 258; Green-leaf v. Kellogg, 2 Mass. R. 568; Hastings v. Wiswall, 8 Mass. R. 455 ; Cooley v. Rose, 3 Mass. R. 221.

<p>If the notice to the creditor states that the debtor intends to take the oath provided by the poor debtor act of 1835, instead of that of 1836, and the creditor appears without objection, and examines the debtor, the justices., have jurisdiction, and are entitled to proceed.</p> <p>Under those acts, in determining when the six months expire, the day of the date of the bond should be excluded.</p> <p>The act of 1835 does not take away the power given to the justices by previous acts on the same subject, to adjourn the examination to the next day. If the justices, at the request of the creditor, adjourn the examination to the next day, being the day after the expiration of the six months, and then administer the oath and discharge the debtor, the law excuses strict performance, and will not suffer the creditor to take advantage from an act procured to be done by himself.</p> <p>If the magistrates, in their certificate, refer to the act of 1835, instead of the act of 1836, as containing the oath administered, and annex a copy thereof, which shows that the proper oath was in fact administered, it is sufficient. When a paper offered in evidence is referred to in a bill of exceptions, by a particular name or description, the legal presumption is, that the whole paper is intended to be presented to the court of law, and not so much of it only as may best comport with the description of it.</p>

Exceptions from the Western District Court, Whitman J. presiding.

Exceptions from the Western District Court, Whitman J. presiding. Assumpsit on a note by the defendants to the plaintiff, as treasurer of the town of Durham, promising to pay him $125,00 in eight months, with interest. The whole evidence appears in the exceptions, but enough is found in the opinion of the Court here, to understand the principle of law decided.

Debt on a bond given by Osgood, as principal, and the other defendants as sureties, dated June 6, 1839, to procure the liberation of Osgood from arrest on an execution against him in favor of the plaintiff, under the poor debtor acts of 1835 and 1836. On December 6, 1839, Osgood submitted himself to examination before two justices of the peace and of the quorum, and was admitted to take the poor debtor’s oath and discharged.

Thu parties agreed to submit to the opinion of the Court, upon a statement of facts, the question, “ whether the insurance obtained on the 27th day of March, on the goods then in said store destroyed the policy effected by the defendants ?

Exceptions from the Court of Common Pleas, Whitman C. J. presiding. Replevin, for articles attached as the property of Bichará Bettes, by the defendant, a deputy sheriff. To prove property in himself, the plaintiff offered Be,ties as a witness. The counsel for the defendant objected to his being sworn, because Bettes was an atheist and a disbeliever in the existence of a Supreme Being; and offered B. Gordon, as a witness to prove the same.

The declaration in this action contained one count for money had and received; also a set of many counts, similar to that which is to follow, numbered one; also a set of counts similar to that herein numbered two; also a set of counts similar to that numbered three. The second and third sets of counts, were on the same bills, the one alleging a presentment thereof by Perkins, and the other by the plaintiff.

Exceptions from the Western District Court, Whitman J. presiding. Assumpsit for money had and received. The plaintiff claimed to recover the sum of $70, alleged to harm been enclosed in a letter, June 25, 1837, and delivered by him to the defendant, to be carried to Somersworth, and there to be left with a Capt. Varney, or his wife, for Kelsey 8f Rundlet, of Portsmouth, but by the defendant converted to his own use.

Exceptions from the Western District Court, Whitman J. presiding. Assumpsit for money collected by the defendant as an attorney at law. The defence set up was, that the money had been received in bank bills, and he would pay in bills, but not in gold or silver.

<p>The indorsee can secure to himself by the indorsement of a note, when over tine, only such rights as the payee himself could have then enforced.</p> <p>The set-off of judgments is not restricted to cases where the parties to the record are the same.</p> <p>Under our statutes, where a promissory note has been indorsed when overdue, and judgment has been obtained thereon against the maker in the name of the indorsee, and a judgment in favor of the maker of that note has boen rendered on a note given to him before the indorsement by the payee of the other; the latter judgment may be set-off against the former.</p>

The causes of error set forth in the petition for a certiorari to quash the proceedings of the county commissioners, and the facts in the case pertinent to the legal questions arising at the hearing, are found in the opinion of this Court. and in support of the first cause of error assigned; that the records of the county commissioners do not show any location of the supposed town or private way by the selectmen of the town of Limerick, or any record of any such supposed way…

The questions in this case arose upon the answers of A. F. Howard and W. A. Burnham, who were summoned as trustees. The company was in debt, and suits were brought and personal property of the company attached, for which Howard and Burnham became receipters. The company had also made contracts partly performed at the time of the attachment, which the company could not complete.

Writ of Error. The original suit was brought to recover a fine incurred by Frost, the plaintiff in error, by unnecessarily neglecting to appear at a meeting of the company of militia within the bounds of which he resided, and of which Ilill was clerk. The meeting was on Sept. 19, 1839, and the suit was brought Oct. 29, 1839.

<p>Mem. Shepley J. having formerly been consulted as counsel, did not sit In this case.</p> <p>If an entry to foreclose a mortgage be made by one acting as attorney of a bank to which the mortgage had been assigned, without legal authority, and the fact that the entry had been made, is afterwards recited in an agreement .executed between the bank and the assignees of the mortgagor, this is a sufficient ratification and adoption of the act of the attorney to make it the act of the bank. *</p> <p>If the stockholders of the bank, by their vote, authorize one of their directors to execute an instrument under seal, waiving and relinquishing the entry made by order of the bank to foreclose the mortgage, and the instrument be executed in pursuance of such vote, it is no waiver of the entry, unless the instrument is delivered over to the holder of'the equity.</p> <p>Although the production of a deed by the party in whose favor it is made, is evidence of a delivery, which is to be referred to the day of its date ; yet it is competent for the other party to show the true time of the delivery, or that it was obtained improperly, or against the will of the party whose signature and seal are affixed.</p> <p>Where land is mortgaged to secure the payment of a sum of money according to the terms of a boud, and the mortgagee assigns the mortgage and bond to secure a sum of money due from him, it is by no moans certain that it is not to be treated as real estate and thus the assignor of the mortgage entitled to the statute period of three years, after breach of condition, before his interest can be foreclosed. But if it is to be treated as a mortgage of personal property, if the prescribed condition has not been fulfilled, there exists, as in mortgages of land, an equity of redemption which may be asserted by the mortgagor, if he brings his bill to redeem within a reasonable time.</p> <p>The institution and prosecution of a suit by the assignee of the mortgage against the assignor on the debt secured by the assignment, is evidence that the right to redeem is still open.</p> <p>Although long before the expiration of the three years, the assignees of the mortgagor had paid to the assignees of the mortgagee the amount of their debt, and entered into the actual possession of the mortgaged premises, and had taken a written agreement to assign or convey to them on request, and to pay over the money, if ihe property should be redeemed; yet as the agreement provided, that the assignees of the mortgagee should proceed to consummate the entry to a foreclosure, if the assignees of the mortgagor requested it, ¿í ilyls/¿eW, that the entry to foreclose the mortgage was not waived as against them.</p> <p>The release by the assignees of the mortgage to the assignor of “all the estate, right, title and interest in and to the said mortgaged premises by force •of the conveyance made thereof by him to us, to hold in like manner as if he had never conveyed the same to us,” does not preclude him from availing himself of the entry to foreclose the mortgage made by the assignees, but imparts to him all the power to pursue the entry to a foreclosure, which they would have had, if the mortgage had remained in their hands.</p> <p>Where the question at issue was, whether an entry made by the assignees of the mortgagee against the owners of the equity of redemption, of which the tenants afterwnrdvS became the assignees, was waived and relinquished, it was held, that the declarations of the agent of the defendants, an incorporated manufacturing company, made to the assessors of a town, that the fee of the premises was in the assignees of the mortgagee, were either properly admitted in evidence, or had too slight a bearing on the issue to be a sufficient cause for granting a new trial.</p>

<p>Mem. Siiepley J. having been consulted in relation to the controversy between these parties, before his appointment, took no part in the decision of this case.</p> <p>The mortgagee brought his writ of entry against the assignees of the mortgagor, without declaring as upon a mortgage ; the assignees by brief statement pleaded, that they were the owners of the equity and entitled to redeem, and that if any judgment should be rendered, it should be as upon a mortgage; to this the mortgagee replied, that the right to redeem had been foreclosed, and that an unconditional judgment should be rendered ; the action was tried, and the jury found, that the assignees were not entitled to redeem' in manner and form as they in their brief statement had alleged ; questions' of law were reserved in' the case, and a motion for a new trial filed, and the' action was continued. During the pendency of the suit on those questions, and before any decision or judgment of the Court thereon, the assignees' tendered the amount secured by the mortgage, and brought their bill in equity to redeem, wherein it was, among other things, alleged, that the suit at law was pending, and that the mortgagee was thereby contriving unjustly to injure the assignees ; the mortgagee demurred to so much of the bill as sought relief, and pleaded the proceedings on the writ of entry in bar of so much of the bill as prayed for a discovery.</p> <p>It was held,: —</p> <p>That where the cause is argued upon a demurrer and plea in bar, that- for the-purpose of considering their legal effect, the averments in the plea are to' be taken as true.</p> <p>That if the mortgagee bring his writ of entry, without declaring as upon a mortgage, the assignees of the mortgagor, have their election to suffer a default, or to plead that they have a subsisting right of redemption, and that a conditional judgment only should be rendered. If the latter course be adopted, it opens the whole field of inquiry as to the facts and principles, legal and equitable, upon which the alleged right to redeem is based.</p> <p>That where a controversy has been submitted to the decision of a'court of law, a court of equity cannot proceed upon the same subject matter'.</p> <p>That the plea in bar, if the averments therein are not controverted, is sufficient to preclude the maintenance of the bill for the discovery of facts, based on the assumption, that the right to redeem remained.</p> <p>That if the plea be allowed by the Court, still the complainants may reply to the plea, and deny the truth of the facts contained in it, and put the defendant to establish them by proof.</p> <p>And that the complainants have a plain, adequate and certain remedy at law, adapted to the relief prayed for; that the whole matter had been submitted to a court of law, and was in a train for final adjudication; and that the matter set forth in the bill to which the demurrer extends, does not entitle them to relief in this Court, sitting as a court of chancery.</p>

Writ of entry to recover a tract of land in Fryeburg. The land originally belonged to the proprietors of Fryeburg. Held: in J.797, 1798, and 1799, that the warrants for calling those meetings recited, that “ whereas application had been made by the owners of more than twelve sixty-fourth parts of the common and undivided lands in the township of Fryeburg.” The plaintiffs’ counsel also-contended, that the third article in the warrant was sufficient: and…

<p>Since the additional militia act of 1837, c. 276, the copy of the record of a court martial, certified by the president, and a duly authenticated copy of the order convening the court, are conclusive and sufficient evidence to sustain an action of debt, brought for the recovery of a fine imposed by the sentence of a court martial.</p> <p>There is no provision of the constitution, which forbids the legislature to confer on courts martial the power to punish by fine.</p>

<p>Bill in equity, heard on bill, answers and proof. Evans states in his bill, that he was seized of the premises in question, and on Jan. 11, 1826, mortgaged the same to one of the respondents and the father of the other, whose title he claims ; that the mortgagees in June following assigned the mortgage to Lithgow, who sued the. mortgage, obtained judgment, and entered under it to foreclose,Aug. 24, 1832, and on March 10, 1833, reconveyed to the respondents; that on July 15, 1833, Evans demanded an account which was refused, and on August 21, 1835, tendered the atnoünt due on the mortgage, which was not received ; that Chadwick recovered judgment against Evans, procured the equity of redemption to be sold June 7, 1828, for $85,23, and became himself the purchaser ; that during the year ensuing, Evans made an arrangement with John Bartlett and Act Plummer to pay Chadwick and redeem the land; that they paid or secured Chadwick, and on June 15, 1829, by consent of parties, Chadwick gave to Bartlett and Plummer, his deed of release as collateral security for the money by him advanced for Evans; that Evans afterwards repaid to them the money advanced for him, and the deed from Chadwick to them not having been recorded, it was understood and believed by all concerned that a delivery of the same deed to Evans would be equivalent to a delivery back to Chadwick, and a new one from him to Evans, and thereupon the deed was so delivered to Evans with the intention to restore to him his rights to the land by way of redemption of the equity sold to Chadwick; that all these proceedings were had before the defendants pretended to have acquired any interest in the equity; that the respondents, with the intention to defraud Evans, Oct. 21, 1833, applied to Chadwick to give them a deed, well knowing all the facts, and that Chadwick at length gave them a deed of that date, at the same time stating,that he had before conveyed the same to Bartlett and Plummer; that Nov. 9, 1833, Bartlett made a deed of his pretended right to one of the respondents, and on Aug. 4, 1835, Plummer made a similar one to the other, each being given íbr a nominal consideration only, and both respondents having been distinctly informed by Bartlett and Plummer, that they had no interest in the land; and that the aforesaid deeds to the respondents were fraudulently procured by them.</p> <p>The substance of the answers, and the facts in the case, sufficiently appear in the opinion of the Court.</p> <p>aud contended, that the depositions of witnesses objected to, ought to be received ;■ that the facts alleged in their bill were proved; that they were entitled to relief thereupon ; and that the attempt set up by the re-* spondents, had wholly failed. They cited, Webber v. Webber, 6 Greenl. 127; Royce v. Burrell, 12 Mass. R. 395 ; 1 Story’s Eq. § 61; 2 ib. <§, 1195 ; 10 Ves. 581 ; 3 Mason, 347.</p> <p>The grounds urged by them in defence, appear in the opinion of the Court.</p>

<p>If a note against a third person, with a mortgage given to secure its payment, passed from the intestate to donees as a donatio causa mortis, the administrator can he but a mere nominal party to a suit upon the mortgage, and has no right to interpose, hut for the benefit of the donees and at their request. And if lie bring a suit, the Court has power ‡0 restrain him from prosecuting it, although the note maybe justly due, And if the interest in the note and mortgage be found to be in the donees, and they repudiate the suit, the Court would not suffer it to be prosecuted by a mere nominal party.</p> <p>If, therefore, this defence bo set up, as it must necessarily bo made for the benefit of the donees, they are not competent witnesses for the tenant.</p>

Whit of entry. The title set up by the demandant was under a levy upon the land as the property of John S. Trott, subject to a life estate therein of Mahitable Trott. Her death, before the commencement of the suit, was proved. The levy was made June 5, 1818, upon the whole of the tract of land described in the levy, but not embracing all the land of which John S. Trott, and David G. Trott, were then seized as tenants in common.

<p>If the chattels described in a bill of sale were, at the time it was made, upon the land or within the buildings of the vendee, and the vendor had no longer possession or control of the land or buildings, and they were within the exclusive control of the vendee or his agent, the sale is complete, and no formal delivery is necessary.</p> <p>A conveyance of chattels fraudulent and void as to creditors of the vendor, is still binding upon the parties to it; they cannot sot up the fraud upon creditors, as against each other; the doctrine, in pari delicto, does not there apply; and the vendee, losing his title to the property by the acts of the vendor, may recover its value against him.</p> <p>The vendor therefore, where the conveyance is alleged to be fraudulent, may be a witness, as well to defeat as to sustain the conveyance, his interest being a balanced ono in either case.</p> <p>To constitute an attachment, it is not necessary that the officer should handle the goods attached, but he must be in view of them, with the power of controlling them and of taking them into his possession. And in case of an attempt by another to interfere or take possession, he should take such measures as to prevent it, unless resisted.</p> <p>The return of an officer, where he is a party, is prima facie evidence, and only so, of an attachment.</p> <p>To preserve an attachment when made, the officer must by himself or his agent retain his control and power of taking immediate possession in all those cases in which the property is capable of being taken into actual possession, except in those where our statute prescribes a different rule. And if he does not do this, the attachment will be regarded as abandoned and dissolved.</p> <p>The mere request to a person to give notice, would not be sufficient, unless he consented to assume the trust of taking charge of the goods for the officer.</p> <p>An attachment does not deprive the debtor of the right to convey his property subject to it, and any merely formal act of delivery, which does not resist or deprive the officer of the actual control of it, is no violation of his rights, and will not subject the purchaser to an action.</p> <p>Nor would the continued operations of mechanics upon the property attached, if not objected to by the officer or his keeper, be considered a trespass against him. But any act whatever which deprives the officer or his keeper of the control of the property, or the removal of any portion of it from the place where he chooses to have it deposited, would subject the person committing the act to an action.</p> <p>Fraud is not to be presumed; and the burthen of proof to establish it, is upon the party asserting it.</p>

<p>The action was assumpsit, on divers bills of the bank, amounting in the whole to the sum of four hundred dollars. There was a special count on each bill, wherein the plaintiff described the bill, alleged ownership in himself, a demand of payment thereof at the counter of the bank, in usual banking hours, a refusal to make payment at that or at any other time, that a delay of more than fifteen days had taken place, and that in consideration thereof, and by force of the statute in such case made and provided, the defendants became liable and promised to pay the amount of the bill, and damages, at the rate of two per cent, per month from the time of the demand.</p> <p>At the trial before Emery J. as the report states, “ the demand of the specie for those bills at the counter of the defendants’ banking house or room, in the usual banking hours, was proved to have been made by the plaintiff’s agent, for the plaintiff, of the cashier of the bank on the third day of July, 1837, and that no payment was then or ever made, nor any tender of payment thereof, to the plaintiff or his agent, nor any other presentment and demand of payment, than was proved to have been then made.” This bank paid specie for a time after the general suspension of specie payments by the New-England Banks, but on May 25, 1837, the directors voted, not to pay specie until tbc Banks generally in Boston resumed specie payments. After this the cashier paid no specie. The bank surrendered its charter, and the surrender was accepted by the legislature in March, 1838. The stock had been divided among the stockholders before the trial. It did not appear in the report, whether the bills were made payable at the bank, or not; but it was said in the argument that no place of payment was fixed.</p> <p>The counsel for the defendants, requested the Judge to instruct the jury: —</p> <p>1. That if no demand was made by the plaintiff, or his agent for the payment of the bills in suit, prior to the bringing of the action, it cannot be maintained.</p> <p>2. That to constitute a demand, it is necessary that it should be so plainly and distinctly made, that the person upon whom it is made, shall understand that payment is demanded.</p> <p>3. That if the jury shall be satisfied, that a demand was made at the time and in the manner stated in the deposition, and that no other demand lias been made at any time, the plaintiff is entitled to recover only the amount of the bills and interest at the rate of six per cent.</p> <p>The Judge declined to give the first and third requested instructions, but gave the second: — and further instructed the jury, that if from the evidence in the case, they were satisfied, that the bills mentioned in the plaintiff’s declaration were by his agent presented at the counter of the defendants’ banking house in usual banking hours, and payment of the specie therefor demanded, it would authorize them to find for the plaintiff the principal of the notes declared on, and two per cent, per month interest, as damages.</p> <p>The jury found for the plaintiff, for the amount of the bills with damages, at the rate of two per cent, per month. The verdict was to be set aside, if the instructions requested and withheld, should have been given, or if those given were erroneous.</p> <p>That the demand being made for specie, was not legal. It is not a demand for gold or silver, as the statute requires. Gold and silver are made a legal tender in payment of bills presented, but gold and silver are not always specie. The plaintiff claimed to be paid in a manner he was not entitled to, and his demand was therefore of no effect. A suit even for the six per cent, interest cannot be maintained, much less one for the penalty.</p> <p>The demand was not legal, because made by an agent. The demand must be made by the holder of the bills, and not by proxy. The tedder is to be made only to the person making the demand</p> <p>By the statute of 1838, c. 326, § 3, thirty days are allowed in which the bank may pay the money, and a second demand must be made, before the penalty of two per cent, per month attaches. This1 applies to all cases. It either repeals the former statutes on this subject, or-is explanatory of them. The re-enactment of the same subject matter is a repeal. 4 Bac. Ab. 645; 1 Inst. 381.</p> <p>This is a pénal statute and is to be construed strictly. It is called a penal statute in the act, and it is penal in its provisions.</p> <p>The legislature has power to take away any right given by statute. The power exists to take away penalties incurred at any time before judgment. Medford v. Learned, 16 Mass. R. 216 ; Patterson v. Philbrook, 9 Mass. R. 151 Thayer v. Sevey, 2 Fairf. 284; 6 Wend. 526; 4 Wend. 210.</p> <p>contended, that where a bill is payable on demand, and no place of payment is fixed in the bill as in this case, that a suit for the six per cent, might be maintained without any demand. Bailey on Bills, 197: 3 Wendell, 21.</p> <p>This is not a penal statute, but a remedial one. It merely gives to the party injured by the delay an additional interest.</p> <p>The statute of 1838 does not in terms repeal the prior statutes on this subject, and is merely prospective. But if it did, it would be inoperative, as the legislature had no more right to take away the forty-eight dollars of interest which had accrued, than the four hundred dollars of principal. Story’s Conflict of Laws, 251.</p> <p>A. demand may at any time be made by an agent. There is nothing in this statute requiring a different demand from what is usual in ordinary cases.</p> <p>The demand for specie was distinctly understood to mean a demand to be paid in the legal currency, and so the jury have found, under the instruction given by the Court at the request of the counsel for the defendants.</p>

The action was for breach of the covenants of a deed of warranty of certain real estate. At the time the deed was given, the premises were incumbered by a mortgage to secure the payment of a sum of money. When the suit was brought, the money was payable, but no entry had been made by the mortgagee.

The action was upon a note dated May 3, 1823, given by tbe defendant’s intestate, Samuel Bishop, to Margaret Bridge, on whose estate the plaintiff is administrator. Both Mrs. Bridge and Bishop were alive, at the commencement of the suit, and one Chism was summoned as the trustee of Bishop. Chism admitted that a sum was due from him to Bishop on account, and disclosed, that he had been notified of an assignment thereof from Samuel Bishop, to Charles C. Bishop.

<p>The si. 1834, c. 137, concerning pounds, &c. does not require, that the impounder of beasts should personally drive them to the pound, or deliver them to the pound keeper, and ho may employ others to perform that service ; but the certificate which is to bo sent or delivered to the pound keeper, must bo the personal act of the impounder, or if he employs the hand of another to make the certificate, if should be done in the name of the party impounding.</p> <p>The certificate left with the pound keeper determines who is to be regarded as the impounder, and the action of replevin for the beasts may be rightly brought against the person who signs such certificate in his own name.</p>

Exceptions from the Middle District Court, Redington J. presiding. The declaration was only on an account annexed to the writ. After the action had been entered in Court, and continued several terms, the plaintiff offered as amendments, under a general leave to amend entered at the first term — 1. The money counts. 2. Insimul comjmtassent. 3. A count on a note given by the defendant to the plaintiff, or his order payable on demand, with interest, dated Aug. 22, 1838.

<p>Debt on a bond from the defendant to the plaintiffs, dated Aug. 22, 1838. The condition was, that whereas the parties “ have submitted all their demands to the determination of (three referees named;) now if the said Bailey does well and truly perform on his part, according to the award and determination of the aforesaid referees, whose award is to be published without being returned to any Court of Common Pleas, then, &c.” The submission signed by the parties was made in the form prescribed in the statute, and was acknowledged before a justice of the peace. They therein submitted “ the demand hereunto annexed and all the demands of both parties.” The demand annexed was this. “ Washington, Aug. 8, 1838. John and Sarah L. McNear to George Bailey Dr. To damage in not performing their contract. $300.”</p> <p>The plaintiff made a statement in writing, of his claim for money paid and services rendered, and damages incurred. The facts in the case, (relating to the points decided,) sufficiently appear in the opinion of the Court.</p> <p>At the trial before Emery J. after a parol agreement h,ad been proved, that the referees might determine respecting real estate, the defendant contended, that no parol agreement could authorize the referees to award the conveyance of real estate; and that,the deeds tendered by the plaintiff were not conformable to the award ; and if the referees had power to award that the defendant should convey his real estate, they had no power to direct hipa to convey the real estate of another person.</p> <p>The Judge -was of opinion that the plaintiffs upon this evidence could not maintain their action; and by consent of parties, directed a nonsuit, to be set aside if the whole Court should be of opinion that the action could 'be maintained.</p> <p>that a parol submission was good. True it .could not be enforced, If the award directed the conveyance of real estate, if it stood alone. And for that reason the bond in suit, under the hands and seals of the defendant, was made to compel the performance of it. But the bond shows that all demands between the parties were submitted, including of course the title to real estate. Horton v. Savage, 1 Fair. 455 ; Bowes v. French, 2 Fairf 182; Tyler v. Dyer, 1 Shepl. 41; Homes v. Aery, 12 Mass. R. 134; Newburyport Mar. Ins. Co. v. Oliver, 8 Mass. R. 402; Kyd on Awards, -262; Ford v. Clough, 8 Greenl. 334.</p> <p>contended, that .the bond was merely to secure the performance of the award of the referees upon the matters submitted to them. The submission .and award are both in writing, and parol evidence is inadmissible to alter or explain them. Bac. Abr. Arbitrament, E; Kyd on Awards, 143 ; 2 Atkyns, 384; Phillips’ Ev. 496.</p> <p>The award is uncertain, and is not and does not pretend to be a final adjustment of the matters submitted to them, and is therefore void. Selby v. Russell, 12 Mod. 1-39; Wharton v. King, 2 B. 8f Adol. 528.</p> <p>The referees had no power to award that the bond for the support of the defendant should be given up.</p> <p>The award is invalid, because the referees against the protestations of the defendant persisted upon adjudicating on the coming as well as the past damages, and yet have not stated in the award that this subject was decided on by them. Kyd on Awards, 141, 208. And the same objection exists as to the claim made by the defendant against the plaintiff for the amount of the outstanding mortgage to J. M. Bailey, which the plaintiff admitted before the referees and agreed to pay.</p> <p>The award is not only void, because being on a submission under the statute, the referees have no power to decide upon the title to real estate, but void even on a submission at common law, because it directs the conveyance of real estate by the defendant; which did not belong to him. Lee v. Elkins, 12 Modem, 585 ;• Kyd on Aw. 187, 189.</p>

Exceptions from the Middle District Court, Redington J. presiding. Trespass for an assault and battery. The facts in the case, so far as they have reference to the questions of law, will be found in the opinion of this Court.

Exceptions from the Middle District Court, Redington J. presiding. Assumpsit on a note of which a copy follows. “Bath, Oct. 31, 1833. Twelvemonths afterdate, I promise to pay Messrs. Rogers ^ Cutler and George W. Drinkwater, or order, one hundred twelve dollars, for value received of Eveline Rogers. S. D. Reed.” The note was wholly in the handwriting of Reed, and was given to Eveline Rogers, to be by her transferred to the payees in payment of debts due them.

Exceptions from the Middle District Court, Redington J. presiding. Replevin on a bond given by Lothrop and sureties to Cook, a deputy sheriff, on serving a writ of replevin of articles attached. The facts are sufficiently stated in the opinion of the Court. contended, that the writ having been improperly made to run against the body, and that appearing on the face of the writ, the Court will ex officio abate it. Stat. 1835, c. 195, § 2; Greenwood v. Fales, 6 Greenl. 405.

Exceptions from the Middle District Court, Redington J. presiding. The facts appear in the opinion of the Court. The defendant excepted to the refusal of the Judge to order a continuance. No reasons are given for the refusal to continue the action. cited the stat. 1834, c. 95, and staL 1839, c. 368, § 3, and contended, that the Judge was bound by law to continue the action, when a trustee process is instituted before judgment.

<p>Where the indenture between the parties by which the tenancy is created, has fixed a definite period for its termination, the lessee is not entitled to notice to quit, to impose upon him the legal obligation to give up the estate to his landlord.</p> <p>By the law directing proceedings in forcible entry and detainer, as it formerly stood, they could not be based upon a mere refusal to deliver possession of land, when demanded; but the si. of 1824, c. 268, in relation to this process has extended its provisions to an unlawful refusal of the tenant to quit, after he shall have had thirty days notice, requiring him to do so.</p> <p>To bring the case within this provision of the statute, the tenant must wrongfully hold over for the space of thirty days after his estate is determined; and the notice there provided for is to be given after the tenancy has terminated.</p> <p>Where the tenancy is limited to a definite period, the landlord may enter immediately upon its termination; and if his entry is forcibly resisted, he may at once avail himself of the remedy provided by this statute, without having given any notice whatever.</p> <p>Under this statute the cause of complaint must exist before the aid of the law is invoked; and therefore the process cannot bo maintained by proof of a forcible detainer after the making of the complaint and warrant, and before the service thereof, upon the same day.</p>

<p>A claim for services rendered by a physician in the last sickness of the testae tor or intestate, is a preferred debt, and not subject to a payment pro rata, under a commission of insolvency.</p> <p>And if the creditor, before the estate is rendered insolvent, hands such preferred claim to the executor and demands payment, no presumption of law arises, that the creditor intended that the claim should be laid before the commissioners; and he is not bonnd by any acts of theirs in relation to his claim, thus coming before them from the executor without authority.</p>

<p>Exceptions from the Middle District Court, Redington J. presiding.</p> <p>Trespass for taking and carrying away a pair of oxen, alleged to belong to the plaintiff.</p> <p>The oxen belonged to one Severance, who on Nov. 8, .1836, bargained with the plaintiff to sell them to him, but the bill of sale and the note for the price, were not made until the next day. The sale was made two miles from the place where the oxen were, and Severance agreed to keep them for the plaintiff for a few weeks until he should send for them. After a few weeks they were sent for by the plaintiff, and by him kept until they were taken away by the defendant.</p> <p>On Nov. 8, 1836, the same oxen were attached by one Givens, a constable of Windsor, in which town Severance lived and the oxen were. Within the writ there was a direction to attach pro perty to the value of sixty dollars, and the damage was alleged to be to that amount. The oxen and other property attached at the same time were valued by the officer in his return at seventy-four dollars. At the time of the attachment, Severance was from home, and at the request of his wife, the defendant gave to the officer a written receipt for the oxen, promising to keep them free of expense, and to deliver them to the officer, or his order, on demand ; Within thirty days after judgment in the action, the execution against Severance was delivered to Bugbee, a constable of Windsor, Givens not being then one, and on April 7, 1838, within tho thirty days, Bugbee demanded the oxen of Givens, and on the same day both Bugbee and Givens demanded them of the receiptor. On June 12, 1838, the defendant found the oxen in the pasture of the plaintiff, drove them away, and delivered them to the officer, by whom they were sold on the execution.</p> <p>The Judge instructed the jury, that Curtis rightfully took the oxen, and that their verdict should be for him, provided, Curtis receipted for them in good faith for the benefit of Severance, and provided Severance ratified the act of his wife in requesting Curtis to receipt for them, and also ratified the act of Curtis in becoming receiptor for the benefit of Severance.</p> <p>Tho verdict was for the defendant, and the plaintiff filed exceptions.</p> <p>1. As the officer was directed to attach but to the amount of sixty dollars, and ho attached to the amount of seventy-four, he transcended his authority, and there was no valid attachment. He was a trespasser ah initio. 12 Pick. 270.</p> <p>2. The sale was made on the same day of the attachment. The vendor became the agent of the purchaser for a time, and the possession of the agent is the possession of the principal, and is tantamount to a delivery. The jury should have been instructed to inquire whether the sale was prior to the attachment, and if so to find for the plaintiff.</p> <p>3. The vendor, after he had sold the oxen, could not defeat the claim of the purchaser by ratifying the acts of his wife. There being no legal receipt for them, the attachment was abandoned by leaving them in possession of the debtor, and could not be restored by any act of his.</p> <p>4. All the acts of the defendant were done by the defendant as receiptor, and to relieve himself from his responsibility, and not as the agent or servant of the officer. He has no such interest or title in the oxen as to justify him in taking them from the possession of the plaintiff at any time. Ludden v. Leavitt, 9 Mass. R. 104; Warren v. Leland, ib. 265.</p> <p>5. The debtor had a right to sell the oxen, even after attachment, subject to the lien created by it, and the vendee would by such sale acquire a valid title to the property, whether he knew of the attachment or not, subject only to such lien; and upon the attachment being dissolved in any way, the title would become absolute in the vendee. Bigelow v. Wilson, .1 Pick. 485. The attachment here could not continue more than thirty days after the rendition of judgment, and the oxen not being taken within that time, the attachment was void. Stat. 1821, c. 60, <§> 1; Alderman v. Phelps, 15 Mass. R. 225; Wheeler v. Fish, 3, Fairf. 241; Warren v. Leland, 9 Mass. R. 265.</p> <p>contended, that the law contemplated' that there will be an attachment of personal property above the debt enough to secure the costs and expenses, and provides for a return of the surplus to the debtor. The officer cannot tell for-what sum the property will sell, and must put some valuation upon it..</p> <p>The case shows that the sale was not made until the day after-the attachment, and it becomes wholly irrelevant to inquire wha£ the law would be on a different state of facts.</p> <p>The officer acted agreeably to law in leaving the oxen in the possession of the defendant, upon taking a receiptor therefor, and it is immaterial whether the acts of the wife, or the receiptor were ratified by the debtor. Stat. 1821, c. 60, § 34.</p> <p>There are cases which show that the receiptor cannot maintain an action for the property, but there are none which forbid the receiptor from taking the properly and delivering it to the officer.</p> <p>It was decided in Webster v. Coffin, 14 Mass. R. 196, that when the execution is delivered to the officer within thirty days, he-becomes responsible for the property attached, and that the receipt- or is then holden to the officer on demand made within any reasonable subsequent period. Here the execution was delivered and the property demanded within thirty days after judgment.</p> <p>The attachment might have been dissolved under the laws of Massachusetts by leaving it in the possession of the debtor, but by' the peculiar provisions of our stat. 1821, c. 60, $ 34, this description of property may be left with the debtor, and the attachment remain good against any subsequent sale by the debtor without notice. Woodman v. Trafton, 7 Greenl. 178. The cases cited for the plaintiff are very good law, where they are pertinent, but they have no application to the present case.</p>

This was an action of the case against the defendant, as late sheriff of the county, for the default of Elkanah Spear, Jr., a deputy ; and came before the Court on a statement of facts. The writ was dated April 1,1840.

<p>This action is the same in which a case is reported in 17 Maine R. 287, and was brought to recover against the defendant’s intestate, Hanson Hight, as indorser of a note from Joshua Gould to him or order, dated Feb. 15,1832, and indorsed as follows. “ For a valuable consideration, I hereby assign the within note to my daughter, Abigail Weston, and order that the contents of the same be paid to her for her own use and benefit — March 22, 1832 — hereby assigning to her the same indemnity which 1 now have for the payment of said note. Hanson Hight.” The note was also indorsed by George B. Weston and Abigail Weston thus. “ Pay the contents to Cyrus Weston or order, without recourse to us for debt or costs.” At the trial before Emery J. the defendant objected, that the note and indorsement should not be given in evidence to support the action. The Judge overruled the objection. The plaintiff then offered G. B. Weston, the husband of Abigail Weston, as a witness, who testified to certain facts showing, that he made a demand upon Gould, the maker of the note, and gave notice thereof to the defendant, and demanded payment thereof, and also the indemnity for the payment thereof, and that the defendant refused. He also testified, that Hanson Hight died Dec. 18, 1832; that sometime before his death; the wife of the witness brought home the note; that soon after that time, he was at the-house of the intestate who brought to him a paper not under seal, which had been- signed by Abigail Wpston, relinquishing all claim she or her husband might have to the estate of her father; that in consideration of the indorsement of this and other notes to his wife he signed this paper, which was taken by said Hanson and put among his other papers; that he told said Hanson, that his administrator would say there was no consideration for the indorsement of the notes, that Hanson replied, that that could not be done, for he had received a full compensation for the notes, that the note was safe, and he had indorsed it so as to hold his estate; that the farm on which Gould lived was holden for the payment of the note; and that Gould had paid fifty dollars, and was unable to pay more. The defendant objected to proving the contents of the paper by parol. It appeared, that due notice had been given to produce it, and the objection was overruled. Mrs. Weston, testified, that her father told her, that he was making a disposition of his property, and proposed giving her $300, and this note was handed to her as part of it; that her father told her, she could have the land or the money, and that he indorsed the note over, and it was holden on his property ; and that on account of these notes, she signed a paper relinquishing all claim to her father’s estate; and that he said, if Gould did not pay the money, either of her brothers would take the land and pay the money for the note. It was proved, that Hanson Hight had given Gould a hond to convey a farm to him on payment of the notes, but had not conveyed the land. It was also proved by other testimony, that Hanson Hight said he had made a disposition of his property, and had given this note to his daughter. The defendant offered Gould the payee of the note, who held a bond from the intestate for the conveyance of the land on payment of the note, as a witness, but the Judge rejected him on the ground of interest. The defendant had objected to the .admission of G. B. Weston and of Abigail Weston, but the objection was overruled by the Judge.</p> <p>The defendant requested the Judge to instruct the jury, that the indorsement on the note was a contract by which said Hanson intended to assign his interest in said note with a right to the same security or indemnity, which said Hanson had for the payment of the same; and that said Hanson did not intend to make himself liable to pay the money on said note by said indorsement, and that said Abigail had a right to the same indemnity, which said Hanson had, when she took said note.</p> <p>The Judge declined to give this instruction, and did instruct them, that if they believed the testimony, there was sufficient evidence of consideration for said indorsement; that the demand and notice were sufficient. The verdict was for the plaintiff, and the defendant excepted to the rulings, instructions and refusal to instruct.</p> <p>in his argument, cited Taylor v. Binney, 7 Mass. II. 479; Parish v. Stone, 14 Pick. 198; Fuller v. McDonald, 8 Greenl. 213 ; Smith v. Sinclair, 15 Mass. R. 171; Crane v. Marsh, A Pick. 131; Woodhull v. Holmes, 10 Johns. R. 231 ; Ilubbly v. Brown, 16 Johns. R. 70; Bayley on Bills, 465, 586, 591; 2 Stark. Ev. 298; Freeman’s Bank v. Rollins, 1 Shep. 202.</p> <p>and cited Bayley on Bills, 69; Mead v. Small, 2 Greenl. 207; 1 Stark. Ev. 356; 1 Phill. Ev. 389; Taunt. &fc. Tump. v. Whiting, 10 Mass. R. 327; Stover v. Batson, 8 Mass. R. 431 ; Pierce v. Butler, 14 Mass. R. 303; 4 Day, 108; 2 Greenl. 339; 13 Mass. R. 472: 15 Johns. R. 49 ; 4 Mass. R. 680; 1 Johns. R. 580; 4 ib. 43; 9 Wend. 410; 2 Story’s Eq. 53; 6 Johns. Ch. R. 322; 17 Mass. R. 571; 15 ib. 90; 7 Pick. 274.</p>

<p>The action was case for an injury sustained by the plaintiff, as he alleged, through a defect in the ’public highway in the town of Whitefield. At the trial before Weston C. J., it appeared, that the plaintiff with his wife was traveling in a chaise drawn by one horse, and while he was driving along the usually traveled path, the horse became restive, threw up his hind legs, and got one of them over a shaft of the chaise; that the plaintiff thereupon reined him out of the traveled part of the road towards the fence on the left hand, with the view to relieve him from the situation into which he had thrown himself, and the horse proving unmanageable run the chaise over a cedar log lying by the traveled part of the highway, which was the immediate cause of the injury. For the space of twenty feet from the log to a stump on the opposite side of the path, the road was smooth and well wrought; wheel tracks were to be found quite near to the cedar log, but there was grass for the space of two feet from the log to the traveled part of the road, where no grass remained. The log was lying upon the side of the ditch or gutter which was next to the road, the ditch at that place being but slightly excavated.</p> <p>The Chief Justice instructed the jury, that usually in the country, the public convenience did not require, that the whole road between its exterior limits should be wrought and made smooth ; that it was sufficient, if so much of it was wrought, as to make it safe .and convenient for travelers; that the town however would not be justified in suffering timber, or other deposits to remain in the road, although out of the traveled path, to the annoyance of travelers ; that if in passing other carriages or teams, or by a sudden fright, to which horses might be liable, a carriage might be precipitated upon the log and overset or injured, its being suffered to remain there was a nuisance and defect in the public highway, and if the plaintiff was thereby injured, the action was maintained. It was submitted to the jury whether it was prudent to drive such horse, and whether the plaintiff otherwise managed prudently, and they found for the plaintiff in both particulars.</p> <p>The verdict for the plaintiff was to be set aside, if the jury were not properly instructed.</p> <p>contended, that the defendants were not liable, because the accident happened on an obstruction in that part of the road which the defendants were not bound to keep in repair. A town is not under the necessity of keeping the whole of the extent laid out as a road in a state to be traveled upon. Howard v. North Bridgewater, 16 Pick. 189. The owner of the adjoining land may use all the road not wanted for travelers, and it is as private property.</p> <p>Here the accident was caused by the viciousness of the horse, or the unskilfulness of the driver. The plaintiff voluntarily left the traveled path, and run upon the log. The road was safe, and the injury received by the plaintiff was caused by his own fault or folly. The injury must be occasioned entirely by the defect in the road, to make the town liable, and not partially by that, and partially by the neglect of the plaintiff. Farnum v. Concord, 2 N. H. Rep. 392.</p> <p>Evans’ name was on the docket for the plaintiff, but he was not present, and no counsel argued on that side.</p>

This was a writ of error, brought to reverse a judgment of a justice of the peace, imposing a fine upon the plaintiff in error, for neglect to attend a militia training.

At the trial before the justice, the counsel for Ward contended, that Washburn was still clerk, and consequently that the record, being only attested by Dennis, had no legal attestation, and that the action was not rightly brought; and also, that if Washburn was not clerk, Dennis was not legally appointed clerk until Sept.-21, 1838, because a lieutenant cannot appoint a sergeant, this being the province of the captain alone.

Exceptions from tbe Middle District Court, Redington J. presiding. Tbe action was against the defendant as indorser of a bill, of which a copy follows. “ $150. Augusta, Feb. 9, 1888. Sixty days after date, pay the order of George W. Perkins, Jr., at the Suffolk Bank, one hundred and fifty dollars, value received, and charge the same to the account of Russell Eaton.” To Bichard F. Perkins, Augusta, Me. This was indorsed to the plaintiffs by the defendant.

<p>A general authority to commence suits, will warrant an attorney in commencing a suit and attaching property, and will render the client responsible for any damages occasioned thereby.</p> <p>When one institutes a suit, he may set forth his cause of action in any manner which the law allows; and if he does so by general counts, and is enabled without amendments to maintain his suit, the law will not deprive him of any right, because he has adopted one mode of declaring in preference to another.</p> <p>Property can be attached only to secure the demand sued ; and if other demands are afterwards introduced, the attachment will not be good against subsequent attaching creditors.</p> <p>When a writ contains the money counts, there may be some difficulty in determining what demands were put in suit. But in the absence of all contradictory proof, those will be considered as in suit, which the plaintiff then owned, and which were due and payable and liable to be introduced, without amendment, and which were in fact so introduced, and judgment rendered thereon.</p> <p>But by st. 1838, c. 344, § 4, (Rev. St. c. 114, § 33,) no attachment of real estate can be valid, unless the plaintiff’s demand, on which ho founds his action, and the nature and amount thereof, are substantially set forth in proper counts, or a specification of such claim is annexed to such writ.</p> <p>A note given in payment for goods purchased, may be introduced in evidence under the money counts.</p> <p>Where new counts are introduced, they will be regarded as introducing new causes of action, unless they appear to be for the same cause.</p> <p>In an action against an officer for neglecting to levy an execution on goods attached by him on the writ, he cannot defend himself by showing that he had previously sold the goods, without the consent of the creditor, and received money therefor.</p>

Exceptions from the C. C. Pleas, Redington J. presiding. Complaint under st. 1821, c. 72, for the maintenance of bastard children.

<p>Where a certificate, signed by a person holding the office of justice of the peace and also of judge of a municipal court, shows that a marriage was solemnized by him, and that he held both of those offices at the time, but does not state in which capacity he acted, the law will regard him as acting in the capacity in which he lawfully might perform the duty.</p> <p>The st. of 1838, c. 310, giving to one Justice of the Supreme Judicial Court jurisdiction in cases of divorce, also gives to one Justice jurisdiction in questions of alimony.</p> <p>Under that statute, there is no appeal upon a question of fact. His decision is as conclusive as the finding of a jury, and is no moro open for a revision by the law Court.</p> <p>In questions of divorce, a written motion to dismiss the libel for causes stated, may be equivalent to pleading the same matter in abatement.</p> <p>The wife, although under the age of twonty-one, may in her own name, without acting by guardian or next friend, file her libel for a divorce, and obtain relief.</p> <p>General words in a statute are to receive a general construction, unless there be something in it to restrain them.</p>

Assumpsit upon an account annexed to the writ, to recover the value of certain logs, called prize logs, sold by the plaintiffs to the defendants at private sale. At the trial before Weston C. J. the plaintiffs read in evidence the private act of March 20, 1835, c. 590, incorporating them, and granting certain privileges, and the additional act of March 26, 1838, c. 496. The plaintiffs then offered Stephen Weston as a witness, and he-was objected to by the defendants.

Exceptions from the Middle District Court, Redington J. presiding. This was an action of assumpsit, in which the defendant was sued by the name of Lewis Hinkley. At the term at which the action was entered, the defendant filed a plea in abatement, that Lis name was Benjamin Lewis Binkley.

Exceptions from the Court of Common Pleas, Rbdington J. presiding. Assumpsit against Reed Spencer and Charles Ramsdell. To maintain the issue on his part, the plaintiff produced and proved a paper executed by the defendants and himself, and also proved performance on his part.

Writ or entry demanding about three acres of land in Wayne village. The land was formerly owned by Jabez Leadbetter, and each party claimed under different levies thereon as his property. Judgments were duly rendered in both suits, and executions were taken out and levied on the premises demanded in each case, in June, 1834, within thirty days, after judgment; and the question was, which had the prior legal attachment. The demandant claimed under Abishai Wing.

Exceptions from the Middle District Court, Redington J. presiding. The facts in this case sufficiently appear in the opinion of the Court. After the evidence was fully out, the counsel for the defendant contended, that he was entitled to retain from the goods, effects and credits in his hands the sum of eighteen dollars, as his costs. The Judge ruled, that he was entitled to retain, as costs, only $4,47.

Exceptions from the Middle District Court, Redington J. presiding. The action was money had and received, and was brought to recover back the sum of fifty dollars lost at gaming.

Exceptions from the Middle District Court, Redington J. presiding. Debt on a bond, dated Feb. 15, 1838, given by Shaw, a debtor in execution, as principal, and by Treat as surety, under the acts for the relief of poor debtors. The condition of the bond was in the common form, and contained no stipulation that the debtor should file the certificate of his discharge with the prison keeper.

<p>Where the defendant in an action of trespass guare clausum, becomes defaulted, he has a right to he heard in damages.</p> <p>Where in such case the damages are assessed by a jury, in pursuance of a request made by the plaintiff, either party may except to any legal opinion of the presiding Judge, instructing them upon what principles they should be governed.</p> <p>The records of a town cannot be contradicted by parol evidence, in respect to matters regularly within the jurisdiction of the town or its officers, and where the entry of record is made in pursuance of law.</p> <p>In laying out a road, the selectmen of a town may lawfully perform their duty by a majority of the whole number.</p> <p>The return of the laying out of a road to the town must be made and signed by a majority of the selectmen, but they may depute to one of their own number, or to any other person, the actual location by running out the road, and marking and setting up monuments.</p> <p>And where one of their own number is employed, it is immaterial whether it was done in virtue of a previous consultation, or was subsequently approved and ratified.</p> <p>One of the selectmen may employ the hand of another to affix his signature.</p>

Exceptions from the Middle District Court, Redington J, presiding. This was an indictment against Snow and three others, for a riot. The respondents with many others, were collected together at a militia training. The facts in the case are found in the opinion of the Court. The counsel for the accused contended, that in criminal cases the jury were the judges of the law as well as of the facts.

<p>Exceptions from the Middle District Court, Redington J. presiding.</p> <p>The action was debt, originally commenced before a justice of the peace, and carried by appeal to the District Court. Under instructions from the District Judge on matters of law, the jury returned a verdict for the defendant. The exceptions state, that upon the rendition of the verdict, the plaintiff’s counsel moved for leave to file exceptions, and requested the judgment to he entered up. The Judge suggested whether it might not be too late, after judgment, to file exceptions. The plaintiff’s counsel however, after taking time, and examining, and citing certain statutes, preferred to have judgment rendered. Thereupon in pursuance of the verdict, the Judge rendered judgment, that the plaintiff take nóthing by his writ, and that the defendant go thereof without day, and recover his costs. “ To which proceedings and several rulings and instructions of the Judge as aforesaid the plaintiff excepts, and he also excepts to the rendition of the judgment rendered upon the verdict as aforesaid.”</p> <p>contended, that the exceptions were taken at the proper time. But if they were not, then the judgment ought not to have been rendered, and that is a sufficient ground of exception.</p> <p>insisted, that exceptions did not lie to an irregular final judgment. The remedy then is by appeal, petition for new trial, or by writ of error. St at. 1839, c. 373, <§> 5 ; Stat. 1822, c. 193. Exceptions lie to matters arising during the progress of a cause. Warren v. Litchfield, 7 Greenl. 63.</p>

Exceptions from the Middle District Court, Redington, J. presiding. This was an action of assumpsit, on an account annexed, for boarding and washing for the plaintiff’s son, for the term of three months. The plaintiff offered a writing signed by the defendant, but not sealed. The defendant objected to the introduction of this paper; but the objection was overruled and the paper was read, as follows. “ Hallowell, Avgust 20, 1836.

Exceptions from the Middle District Court, Redington J. presiding. Assumpsit on a note given by the defendants to John Albee, and by him indorsed to the plaintiff “ without recourse.” After the note had been read to the jury, the defendants called the subscribing witness thereto, who testified, that he put his signature to it at the time it was given, and that the words “ with interest,” had since been added.

This action was assumpsit for money had and received. The action was referred to referees, who reported a state of facts, and based their opinion upon the decisions of certain questions of law, specially referred to the Court.

<p>In the st. 1839, c. 373, establishing district courts, there is no provision like that in some of the former acts for an appeal from a judgment on an issue in law or case stated by the parties, unless the damages demanded exceed the sum of two hundred dollars.</p> <p>In all cases therefore, not falling within the exceptions relating to certain descriptions of actions, where the damages demanded do not exceed that sum, the only provision made for bringing them before this Court is by bill of exceptions.</p> <p>Note by the Reporter. By the Revised Statutes, c. 97, § 13, “ any party, aggrieved at tlie judgment of any district court, on any demurrer or agreed statement of facts,” may appeal therefrom to the next Supreme Judicial Court.</p>

Exceptions from the Middle District Court, Redington J. presiding. Assumpsit. The first count in the writ was on an account annexed, charging a “ horse power,” and the second and third set forth in different modes the facts on which the plaintiff relied to maintain bis action.

Exceptions from the Middle District Court, Redington J. presiding. Assumpsit for money paid, laid out and expended, the suit having been commenced July 22, 1839. The plaintiff and defendant had been sureties for Asa H. Hankerson in a note to G. W. Stanley.

This was an indictment for the forgery of a deed, conveying certain land to Shurtliff. Held: that fraudulently inserting a legacy in a will before it was signed was forgery. The essence of the offence is the intention to defraud. So too it is a forgery to write one’s own name to a paper, pretending to be a different person of the same name.

Exceptions from the Middle District Court, Redington J.' presiding. The proceedings in this case, which were under the bastardy act, were in the complainant’s own name, and not by guardian or prochein ami. The complaint and examination bore date of July 18, 1839, and alleged that the child was begotten on or about the 10th of Nov. 1838. The child was born Aug. 10, 1839.

<p>^Posthumous children have a derivative settlement from their father, if he had any ; and in this respect are in the same condition, with such as are born jji Jhjs lifetime.</p> <p>JBy .the .Massachusetts statute of 1793, c. 59, and also by the statute of this ,S.tate of 1821, p. 122, legitimate children are to follow and have the settlement of their father, if he had any within the State, until they gain a settlement of their own; but if he shall have none, they shall follow and have the .settlement of their mother, if she shall have any.</p> <p>A legitimate child, therefore, whose father had a settlement within the State, and died subsequent to the statute of 1793 and prior to that of 1821, does not follow a new settlement, acquired by his mother under the latter statute, but retains .the settlement of his father, until he acquires one in his own right.</p> <p>jit has become a principle of law in the construction of statutes for the relief of the poor, that minor children, until emancipated, are incapable of gaining a settlement in their own right.</p>

Exceptions from the Western District Court, Whitman J. presiding. The action was case, for an injury alleged to have been sustained by the plaintiff to his person, horse and gig, through a defect in a highway and bridge in Dixfield. The bridge was over a brook under which the water was in depth about three feet. The planked part of the bridge was about twenty-four feet in length, and eighteen feet in width, and four and an half feet above the water.

Exceptions from the Western District Court, Whitman J. presiding. Trover for a horse. The exceptions state, that the plaintiff introduced a paper of which the following is a copy: “ This certifies that I have this day sold and delivered to Chas.

<p>Where it appears from the Probate records, that a majority of the selectmen of a town made a representation and complaint to the Judge of Probate for the county, that a certain inhabitant of that, town was a spendthrift and wasting his estate ; and that thereupon notice issued to the alleged spendthrift, to show cause why he should not he put under guardianship; it is sufficient to show that the Judge of Probate had jurisdiction under the Stat. 1821, c. 51, § 53.</p> <p>Although no record of a decree for the appointment of a guardian is to be found in the Probate office, except in the registry of the letter of guardianship, yet as the jurisdiction of the Judge regularly attached by a proper representation and complaint, and he notified the party to be affected, the letter of guardianship is evidence, that the guardian was duly appointed.</p> <p>And if the letter of guardianship misrecites, that this had been done upon an inquest of the selectmen, this does not vitiate the authority of the guardian, and a debtor of the spendthrift is protected in a payment to such guardian. Where there are two guardians of a spendthrift, it is competent for one to receive payment of a debt due to the ward, of which payment his receipt is prima facie evidence.</p>

<p>Where one in possession of lands not his own, submitted to the title of the true owner and consented that a conveyance thereof might be made to a third person, from whom, after the conveyance wras completed, he received a bond for a deed on the performance of certain conditions; it was held, that his occupation after that time could be only that of a tenant at will under the grantee; and that the latter could convey the land and pass the title to another, notwithstanding that the obligee at the time of this conveyance produced his bond and gave notice that he claimed the land.</p> <p>One may make a peaceable entry upon his own land; and having so entered, he is entitled to protect himself from being turned off by one, who has no title therein.</p> <p>An instruction to the jury, that if they believed that one of the parties had attempted to deceive them in an important particular relative to the issue, they might take it into consideration in connexion with the other conflicting testimony, is not legally objectionable.</p>

The action was replevin for a pair of oxen, attached by the defendant as an officer on a writ in favor of one ,Dore against J. Westcott, as his property. The action was referred to a referee, to be decided upon legal principles.

Exceptions from the Court of Common Pleas, Redington J. presiding. Assumpsit by the plaintiff, as indorsee of a note, dated April 3, 1835, for % 1060, payable in one year with interest, to John Ware, or order, and signed by Moody, as principal, and by the other two defendants, French and Roberts, as sureties. The principal was defaulted, and the sureties defended the action.

<p>Wheh tlie debtor is sole seized oi'real estate which can be divided without injury to or spoiling the whole, a levy upon it must be made by metes and bounds, agreeably to the provisions of the st. of J 821, c. GO, § 27.</p> <p>It is not every estate, the value of which may ill some measure be diminished by a levy by motes and bounds, that falls within tlie provisions of the twenty-ninth section. The words, “ other real estate, which cannot be divided without pr judice to or spoiling tlie whole,” iu that section, have reference to such other estate as would ho injured in like manner, as a mill, mill privilege, or factory, would be by such levy, and not to veal estate liable to some, but not to such kind of injury, by separating it by metes and bounds.</p> <p>The Court cannot declare a levy void, merely because it appears to have been injudiciously made, as the determination of that question is entrusted by the statute to the appraisers, whoso decision is conclusive on this point, unless they act fraudulently.</p> <p>Nor can the Court presume that the appraisers have lent themselves as instruments to aid the creditor to perpetrate a fraud upon the rights of tlie debtor, however revolting to one’s sense of justice the levy may appear; but such case, if it shall occur, must bo presented to a jury for decision.</p>

Exceptions from the Middle District Court, Redington J. presiding. Held: if at all, on , a distinct contract; and that the burthen is on the plaintiff to prove such a contract, and to show a valuable consideration to support it. The Judge overruled these objections, and instructed the jury, that none of the above grounds taken in defence of this action could prevail, or be sustained.

Exceptions from the Middle District Court, Redington J„ presiding. Trespass for the taking of an ox, alleged to be the property of the plaintiffs, by one Kimball, a deputy of the defendant, formerly sheriff of the county, on a writ in favor of Strickland against Marsh, as the property of the latter. The taking of the ox from the possession of the plaintiffs by Kimball on a lawful precept against Marsh was admitted, and that Kimball was a deputy of the defendant.

Exceptions from the Middle District Court, Redington J. presiding.

Exceptions from the Middle District Court, Redington J. presiding. The plaintiff brought his action as indorsee of a note, dated July 7, 1837, made by the defendant to Gridley T. Parkman, payable on demand, and by him indorsed to the plaintiff, Oct. 4, 1837. The defendant called Gridley T. Parkman, the payee, and examined him as a witness, and his testimony tended to show, that the note was given to him under such circumstances, that it could not be recovered.

Exceptions from the Court of Common Pleas, Redington J. presiding. This was an action on the case in which the plaintiff claimed damages for an injury done to his horse by reason of a defect or incumbrance, alleged in the writ to have been upon a county road in Garland, which the defendants were bound to maintain.

This was a writ of error, brought to reverse a judgment of a justice of the peace, imposing a fine on Hill, the plaintiff in error, for neglecting to attend a militia training. In the declaration the day of the alleged neglect of duty was so illegibly written, that the justice found it difficult to determine, whether eighth or eighteenth was intended. He permitted an amendment to be made by writing eighteenth in the place of the word.

Assumpsit to recover the expenses of supporting Josiah Lander, alleged to have had his settlement in Harmony, and to have been found in distress and standing in need of immediate relief, in the town of Milo. The facts were agreed, from which it appeared, that the question between the parties was, whether Lander, the pauper, had gained a settlement in Harmony.

<p>When a case comes from the District Court by exceptions, although all the evidence at the trial appears on the face of them, it is not in condition to be examined, as it would be on a petition or motion for a new trial. The only subjects of consideration here are those legal questions apparent on the exceptions, and which were decided hy the presiding Judge.</p> <p>The rule, caveat emptor, does not apply where one party to the contract entered into it by reason of "the false and fraudulent representations of the other.</p> <p>The Court cannot infer that a party to a lease made in consequence of the false representations of the other in relation to the income of the premises leased, waived his right to set up this in defence, from the mere fact that he had seen and been upon the premises before the lease was executed.</p> <p>A false representation relating to the income or value of an estate, the knowledge of which is usually confined to the owner and those standing in a confidential relation to him, does not come within the rule, that the party making it is not responsible to one deceived by it, by reason of its being a matter whieh is or should be equally well known to both parties.</p> <p>Although a party may not be able to rescind a contract partly executed, and recover back what he has paid under it, yet where the contract was made in consequence of the false and fraudulent representations of the plaintiff, this furnishes a good defence to an action to compel a further execution of such contract, unless after a full knowledge of all the facts the defendant has come to a new agreement, or has voluntarily waived all objections to it.</p> <p>A party cannot justly be regarded as voluntarily confirming a contract believed to be fraudulent, because he did not repudiate it upon a violent presumptioh of fraud, instead of waiting until the time when it would be clearly shown whether there was fraud or not.</p> <p>Where premises are leased for three years “ at a rent of eight hundred dollars yearly,” and where the lessee agrees to pay the rent semi-annually, it is not a semi-annual, but an annual rent; and the payment of four hundred dollars at the expiration of the first six months is to be considered as a part of the yearly rent, and not a payment for any specified number of months.</p> <p>An objection made to the admission of testimony of a particular description or class, as to parpl testimony to prove a contract to be fraudulent, does not extend to or imply an objection to any question, or to any answer of a witness, during the examination.</p> <p>Testimony appropriate to one count in the declaration, although not to all, is admissible.</p> <p>A judge may properly refuse to comply with a request of counsel to give a particular instruction to the jury, if the request assume as facts proved on which to predicate the instruction, what had not been proved, or was proper only for the decision of the jury upon the evidence.</p> <p>If the effect of a compliance with the request of counsel to a judge to give a specified instruction, would be to mislead instead of to enlighten the jury, the request may well be denied.</p>

Gilman filesd a petition for partition at Oct. Term, 1835, wherein he alleged that he was seized in fee as tenant in common of one undivided fourth part of a piece of land, with the buildings thereon, on Exchange Street, in Bangor, and prayed to have partition thereof made. Stetson appeared, and pleaded that he was sole seized of the land.

This was a special action on the case, alleging, that by means of a hole cut in the ice in Penobscot River by the defendants, the plaintiff lost his horse, he being then lawfully traveling on the ice, and the horse having fallen in and having been drowned. There was proof in the case tending to show, that there had been a road in the winter on the ice, near the place where the defendants cut the bole, for more than twenty years.

<p>The plaintiffs introduced evidence tending to show, that they sold the goods charged in the account to the defendants, and delivered the same to the order of Martin S. Wood, as their agent j that Wood was their agent; that the property was put into the Bangor House; that a portion of it remained there at the time of the trial, having been leased to the tenant of the house by the proprietors ; that the defendants were informed by the plaintiffs, that they had made the sale of the goods to Wood as their agent, and that the same were charged to the defendants; and that Wood was authorized by the defendants as their agent to purchase of the plaintiffs a part of the articles charged to them in the account. There was much conflicting and opposing testimony upon all these points. It was said at the argument of the questions of law, that the true case was not fully presented in the report.</p> <p>Upon the evidence the plaintiffs claimed to recover, upon the ground — 1. That Wood was the agent of the defendants, and that his contract, made with the plaintiffs was binding on the defendants. 2. That Wood was held out fay the defendants as their agent, and that his contract was binding upon them. 3. That the defendants having received, claimed and used the property sold by the plaintiffs to Wood as their agent, with a knowledge that the same was so sold to Wood and charged to the defendants, was a ratification of his agency, and that claiming and appropriating the same with a knowledge of the manner in which it had been obtained, bound the defendants to pay therefor.</p> <p>The counsel for the defendants requested the Court to instruct the jury, that if the crockery and glass ware, included in the schedule of the articles, was delivered over to the Bangor House Proprietors in part payment of Mood’s note, and was received by them under the lease, that such reception was not a ratification of the purchase of Wood of such crockery and glass ware.</p> <p>Emery, J. who presided at the trial, instructed the jury, that the mere fact that the Bangor House Proprietary received the goods and chattels in question from Martin S. Wood in part payment of his note to them, by direction of the referees in the reference between them, would not be sufficient of itself to charge the defendants, had they been ignorant of the purchase thereof of the plaintiffs by Wood, claiming to act as the agent of the defendants.</p> <p>That the jury would consider all the matters previously in evidence as to former acts of Wood, as the defendants’ agent in selecting crockery ware from the plaintiffs’ store by direction of Mr. Hwinal, the defendants’ agent, Wood’s application to Divinal and Emerson for permission to purchase silver ware, and the evidence of Divinal and Emerson, denying that they gave Wood authority to purchase silver ware in the name of the defendants of the plaintiffs, or to buy crockery of any body in the defendants’ name, after Wood had become the occupant of the house.</p> <p>But if, from the evidence in the case, the jury believed that previous to the reception of said goods from said Wood, the same goods wore purchased of the plaintiffs by said Wood, claiming to be the defendants’ agent, and were by the plaintiffs delivered to Wood and charged to the defendants, and notice was given by the plaintiff to the defendants, of these facts, the reception and uso of those goods by the defendants afterwards for their benefit, would amount to a ratification of Wood’s acts, so far as to make the defendants liable to the plaintiffs for the value of the goods for which the action is prosecuted.</p> <p>If these instructions were correct, the verdict for the plaintiffs under them was to stand ; but if erroneous, the verdict was to be set aside, and a new trial granted.</p> <p>contending that the instruction to the jury, requested in behalf of the defendants, was improperly withheld ; and that the instructions given were erroneous.</p> <p>citing 7 Crunch, 299; 19 John. R. 60; 4 Cowen, 659; 2 Gill 8f Johns. 227 ; 2 Conn. R. 255; 1 Pick. 37,3; 8 Pick. 178; 3 llar, J. 367; 3 Halst. 182.</p>