Volume 19 — Maine Reports

<p>Bottomry bonds may bo executed by the owner of a ship at a home port, and their validity does not depend upon the application of the money, when obtained by tho owner, to tho purposes of tile ship or of the voyage.</p> <p>It is of the essence of a bottomry bond that it is for money taken up on a maritime risk.</p> <p>When bottomry bonds are given as collateral security for debts due, that fact may be shown when the interests of third persons are thereby to he affected, notwithstanding the recital in the bond, that they are given for money lent and advanced.</p> <p>When a bottomry bond is given to secure past indebtedness, if that were discharged to the amount of tho security by bottomry, it would seem that it might be regarded as a new loan on bottomry.</p> <p>When unaccompanied by delivery, such bond cannot be regarded as a mortgage, unless recorded, as required by St. of 1839, c. 390.</p>

<p>Assumpsit for rent. It was agreed in this case that the premises for a portion of which rent was claimed, were purchased in 1822 by N. & L. Dana and L. Cutter, who then were and for a long time after continued to be partuers in trade under the style of N. & L. Dana!1 & Co.; that the land was purchased with partnership funds and for partnership purposes, and was occupied and enjoyed by the firm, till May 13,1837, when the same was sold to Thomas Chadwick, under whom the plaintiff in this case claims title. Said Chadwick gave his note for the purchase money to the firm of N. & L. Dana & Co. by whom the same was transferred to Smith & Dole in payment of a debt, which existed prior to the attachment herein after named as made by the President, Directors & Co. of the Bank of Cumberland. The firm of N. & L. Dana & Co. failed on or about the 13th of May and were deeply insolvent.</p> <p>The defendants claimed title by virtue of an attachment of the premises made on the 28th April, 1837, on a writ sued out by the President, Directors fy Co. of the Bank of Cumberland v. L. Cutter, on which judgment was obtained at the Nov. Term of the S. J. Court, 1838; judgment being rendered thereon the 31st. Dec. 1838. On 15th. Jan. 1839, the plaintiffs in that suit levied their execution issued on said judgment on one undivided third part of the premises purchased by the firm of N. &. L. Dana &■ Co, as before stated, as the property of L. Cutter, and thereby satisfied a part of said execution.</p> <p>The rent claimed is for the third part of the premises levied on by the Cumberland Bank, and which the plaintiffs claim by virtue of a conveyance from the firm of N. & L. Dana & Co. The defendant claims to be tenant of the Bank of Cumberland, and judgment is to be rendered as the title shall be found to be either in the plaintiff or in the said Bank of Cumberland.</p> <p>The plaintiff claims title through and under the firm of Dana & Co. The property levied upon was partnership property, and was pledged to the payment of partnership debts, and has been thus appropriated. The partners could not, if they would, divert this property from its legal appropriation; still less can it be done by others. As between themselves they may be deemed tenants in common, but as respects their creditors, the real estate equally with the personal is held for the payment of the debts of the firm. The Bank of Cumberland taking by levy can have only the rights of the debtor, and the firm being insolvent they acquired nothing thereby. 3 Kent’s Com. 2d ed. 24, 36, 38. Fisk &f al. v. Herrick &y T., 6 Mass. R. 271; Edgar v. Donally &f al., 2 Munf. 387 ; Sigourney v. Munn, 7 Conn. 11; Coles v. Coles, 15 Johns. 159 ; Commercial Bank v. Wilkins, 9 Greenl. 28 ; Watson on Partnership, 57.</p> <p>From the whole law of partnership, the property of the firm is held by the several members as joint tenants. This relation is unchanged by statute of Maine, c. 35, <§> 1. Real estate purchased by a firm for partnership purposes and with the funds of the firm is to be considered as excepted from the operation of the statute, it being liable by the general law on the subject to the debts of the firm, and the partners, as appears by the facts in this case, intending to hold it as joint tenants. Their intention should govern. Anderson v. Parsons al. 4 Greenl. 486.</p> <p>There is no such tenure of lands known to the law as a copartnership tenure. They must bo either held in joint tenancy or co-tenancy. Unless the contrary be specially provided for, all lands are to be taken to be estates in common by st. of Maine, c. 35, <§> 1. The rules of law regulating the personal property of a partnership do not apply to its real estate. Coles v. Coles, 15 Johns. 159; 3 Kent, 1st ed. 15'; Goodwin v. Richardson, 11 Mass. R. 469; Pitts v. Waugh, 4 Mass. R. 424. When partners purchase real estate for the purposes of the partnership, it is always held by them as tenants in common. Courts of law exclude from their consideration the funds with which, or the objects, for which, the lands were bought. Watson on Partnership, 73; Collyer on Partnership, 69.</p>

This was an action of assumpsit against the defendant as indorser of a note given by the second Unitarian Society of Portland, signed by the defendant, W. E. Greely and others, their Parish Committee for that purpose, duly authorized, dated Jan. 29, 1838, for $2575, payable to the defendant or order, in 60 days and grace, and by him indorsed. The general issue was pleaded and joined.

Exceptions to the'ruling of Whitman J. This action was returnable to and entered at the Oct. Term, 1839, of the District Court for the Western District, to be then holden at Portland, for the county of Cumberland. Both of the trustees and the defendant lived in the county of York. At the Oct. Term, Hamilton appeared, disclosed, and was adjudged not to be a trustee.

<p>When a suit is brought by the holder of a note indorsed over due, against the maker, he is not entitled to the benefit of his counter claims against the indorser, unless they are filed in set-olf.</p>

<p>This was an action of debt on bond, given by Ira D. Bug-bee & als. to the plaintiffs, as security for the faithful performance of the duties of cashier of the Bank of Cumberland by said Bugbee, during his continuance in that office. The defendants pleaded non esl faclum, which was joined by the plaintiffs and a brief statement alleging a performance by said Bugbee of all and singular the things which he was required to do by the condition of said bond, and a counter statement by the plaintiffs setting forth the breaches upon which they relied.</p> <p>The signatures of the several defendants were not denied, but the objection was taken that the instrument declared on was not the deed of the defendants, because upon inspection it appeared there were but five seals when there were six signatures, and the counsel for the defendants moved a nonsuit, which was declined, on the ground that whether or not each of the defendants sealed the bond was a question of fact, which should be left to the jury.</p> <p>Upon the issue of non esl faclum, Weston C. J. before whom the cause was tried, instructed the jury that the bond had now six signatures and five seals — that if, as was contended by the counsel for the plaintiffs, there had been a sixth seal, the remains of which they insisted were apparent — that this would be an end of the question. That if originally there were but five seals they might have been allikcd by the first five signers — that by law however one seal might be adopted by two or more signers, and it was for the jury to consider whether the last signer had not ádopted one of the seals — that of this the language of the instrument which he signs “ sealed with our seals ” was presumptive evidence — and that if two of the obligors adopted one seal, it was as well as though there had been six seals.</p> <p>The jury found that the writing obligatory declared on, was not the deed of the defendants — and upon inquiry, by the Court why they had so found they replied, because the bond had not been sealed and executed by all the signers, and that that was the only point which they had considered.</p> <p>There was likewise a motion for a new trial, on the ground that the verdict was against law and evidence.</p> <p>It is well settled law, that two or more signers to a deed may adopt the same seal. Bradford v. Randall, 5 Pick. 496 ; Mackay et al. v. Blood-good et al., 9 Johns. R. 284; Ludlow et al. v. Simond, 2 Caines’ Cas. in Er. 42, 55; Ball v. Dunsterville et al. 4 D. & E. 314 ; Lord Lovelace’s Case, Sir W. Jones, 268; Cady v. Shepherd, 11 Pick. 400 ; Pequawkett Bridge v. Mathes et als., 7 N. H. Rep. 230; 2 Hill. Abr. 293.</p> <p>It is sufficient if the obligor acknowledge any impression already made to be his sea 1. 1 Stark. Ev. 332; 1 Phil. Ev. 360.</p> <p>The jury have found that the bond was not the bond of all the defendants, not having been executed by all the signers. By the common law, signing was not necessary, but the seal the essential requisite. 2 Coke, 5 a; 7 Petersd. Abr. 659; Wright v. Wakeford, 17 Ves. 459.</p> <p>While the sanctity of the seal is retained — and that is the act which makes the deed obligatory, it would be absurd to consider the signing which was regarded as immaterial as conclusively binding. In all the cases cited, the seals were adopted by the consent of all. Here the whole question is, whether a signature by one of the signers is conclusive evidence of an adoption by him of a seal previously affixed. The verdict can only be set aside on the ground that “ sealed with our seals ” is peremptory on the jury. If it be not conclusive — then different juries may come to different conclusions. This was submitted to tlie jury as a matter of fact. It was either a matter of fact, or of law — if of law, the Court should have so instructed the jury. If of fact, then it was for the special determination of the jury •— and the Court will be slow in setting aside a verdict as against evidence, when they have deliberately settled the fact submitted. It was a mockery to leave the jury to infer or not an adoption by one of the seal of another, if after they have drawn such an inference, as to them the evidence seemed to require, the verdict is to be set aside, because that inference is not such as the Court would have drawn.</p>

<p>By Stat. of 1824, c. 272, a note left with a bank for collection is entitled to> grace, and cannot be demanded till the last day of grace.</p> <p>It is not necessary to charge an indorser, that the notice of the non-payment of the bill should state the name of the holder or the place where the note or bill was to bo found.</p> <p>The holder is excused from making further exertion to notify an indorser, when he finds during business hours, his place of business closed and the door locked.</p> <p>Whore a note is made payable at some future period, with interest annually till its maturity, and no demand is made for the annual interest as it becomes due, or if made, no notice thereof is given to the indorsor; if duly notified of demand and non-payment when the note falls due, he is liable for the whole amount due, both principal and interest. — Emery J. dissenting. Interest is to be regarded as incidental to the debt and not a part of it.</p> <p>Annual interest cannot be recovered by a separate action for it after the principal has become due.</p>

It appeared in this case, from the disclosure of the trustees, that on the 24th of Oct. 1839, Joseph S. Munroe and Joseph Goodwin made a contract with Ira Crocker as agent for the Bank of Cumberland, by which they were to cut and haul lumber, for the bank, on land in No. 3, R 12, near Chesuncook, and were to be' paid therefor, on the completion of their labor, by the bank according to certain terms and conditions specified in the contract.

Petition for a certiorari to bring up the records and proceedings of the respondents in relation to the disclosure of J. W. A. Brewster, a poor debtor, who had been arrested on mesne process, by virtue of a writ in favor of the petitioners against him, and had been brought before the respondents, two justices of the peace and quorum for the county of Cumberland, in which the arrest had been made.

<p>The liability of the receipters for property attached is limited by that of the attaching officer, and when that has been discharged the receipters áre no longer holden.</p> <p>The officer may show that the property attached did not belong to the debtor and the same defence is open to the receiptors, unless they have suffered their own goods to be attached and without interposing any claim have receipted for them, in which event they would not be permitted to avoid their liability.</p> <p>The right of redemption of personal property mortgaged is attachable on mesne process by virtue of St. oí' 1835, c. 188,</p> <p>The sum at which property attached is valued in a receipt, is prima facie the measure of damage.</p> <p>If there be an over valuation it may be shown in reduction of damages.</p>

This was assumpsit, and was submitted on the following statement of facts. The plaintiff on August 19, 1835, became the mortgagee of certain lots of land in Chester — upon which, in the winter of 1837 — 8, certain timber was cut under permits from the mortgagors — but without his knowledge or consent. The defendants furnished supplies to the person by whom the timber was cut and afterwards without a knowledge of the existence of the mortgage purchased the timber.

Exceptions to the ruling of Shepley J. by whom the trustee had been charged upon the following facts, which appeared in his disclosure. Previous to the time of the service of the plaintiffs’ writ, Mrs. Day left, by the permission of the wife of the trustee, certain trunks and boxes of bed clothes and wearing apparel at his house — and subject to the order of her husband, the defendant in this suit.

<p>Where the devisor, seized of the estate in which dower was demanded, by bis will, after making divers legacies, directed the same to be sold by his executor, and devised whatever should remain after paying debts and legacies td the husband of the demandant — it was held — that the husband acquired! thereby no seizin — and that the devise was of such portion of the proceeds of the sales made by the executor as might not be wanted for the payment of debts or legacies.</p> <p>When the executor, with power to sell by the will, conveyed the estate of his testator with covenant of the seizin of his testator, and the devisee of the remainder after the payment of debts and legacies by deed of warranty against all persons, but without covenants of seizin conveyed the same estate to the same grantee on the same day on which the deed of the executor was made and delivered — it was held, that the deed of the devisee operated only to confirm the title conveyed by the executor — and that the grantee was not estopped to deny his (the devisee’s) seizin.</p>

This was assumpsit on a promissory note, dated Nov. 5, 1838, for $200, made by Osgood Bradbury, payable to William Bradbury or order, in sixty days and grace, - at either of the Banks in Portland, and indorsed by said Bradbury and the defendant.

This Was an action for dower in certain lands described in' the demandant’s writ, which was dated Feb. 4, 1840. The' demandant proved her marriage with Eli Hamblin, and his death, and that she had duly made a demand for dower on the tenants, Dec. 4, ,1839'.

Assumpsit on an order dated June 12, 1833, drawn by Jov siah W. Beals, in favor of the plaintiff, for two hundred and sixty dollars and interest on the same for one year and one month, on the defendant, and by him accepted — on which were two indorsements, the last of which was dated Jan. 9, 1834. The writ was dated Jan. 2, 1840. The defendant pleaded the general issue, and for brief state-: ment relied on the statute of limitations.

<p>Where the maker of a note procured it td be attested by a witness nearly six years after its date, it was held, that such attestation gave the paper the legal character of a witnessed note.</p>

<p>Assumpsit for money had and received by the defendants to the plaintiff’s use. The writ was dated June 23, 1837.</p> <p>The plaintiff, to support his claim, read in evidence a receipt of the following tenor. “ Saco, March 10, 1835. Received of John W. Appleton, Esq. eight hundred and fifty dollars toward the first payment of lands we are to have of Ether Shepley as per his bond to us, which land we agreed to sell Mr. Appleton on the 15th of this month. “ Amos Chase.</p> <p>“John Spring.”</p> <p>Likewise another receipt for $650 “ as part payment for one fifth part of a tract of land called the Austin Stream, on the Kennebec waters, purchased of myself and Amos Chase,” dated March 14, 1835, and signed by J. Spring for himself and Chase.</p> <p>Also another receipt for a note, for $766,67 payable in sixty days, which “ when paid is in part of advance to Amos Chase and myself for Austin Stream, which we have agreed to sell on certain conditions,” dated March 17, 1835, and signed by J. Spring.</p> <p>To prove that the defendants had no title to the land bargained for till after the commencement of this suit, the plaintiff read deeds from Henry Goddard to Ether Shepley, dated March 25, 1833, of four fifths of one half of the Austin Stream tract, and from Sumner Cummings and J. & J. Dow of the same date, conveying half of the same tract — and likewise a deed of one fifth of the Austin Stream tract from Ether Shepley to Amos Chase, dated Oct. 16, 1837 — and here rested his case.</p> <p>The defendants then read a contract dated Feb. 15, 1835, signed by the plaintiff, by which he contracted and agreed to purchase of them one fifth part of the Austin Stream tract, and $2266,67 was to be paid by him on the JOth of March next, when a deed or bond for a deed was to be given, and the same amount was to be paid in one and two years, with interest annually, with good security. Also a contract with Ether Shepley, dated Nov. 20, 1834, by which he agreed to sell to them one undivided fifth part of Austin Stream tract, purchased of Messrs Goddard & Dow, upon their complying with certain conditions specified in that contract, and notifying him on or before the 15th da j of February next, that they will so purchase— which contract, March 16, 1834, was assigned to Amos Chase. It appeared that due notice was given him of the intention of the defendants to purchase said tract.</p> <p>The defendants further read in evidence a deed from Ether Shepley to Amos Chase, dated March 15, 1835, of one fifth of the Austin tract, — also the mortgage deed from him to Henry Goddard, dated March 25, 1833, which was discharged July 26, 1836 — and to J. & .1. Dow of the same date, which was discharged Sept. 19, 1836, said mortgages being of the tracts, which the said mortgagees had conveyed him by their deeds of the same date.</p> <p>Ether Shepley, called by the defendants, testified, that he executed the deed, dated March 15, 1835, in compliance with his contract of the date of November 20, 1834, the defendants having fully performed whatever was to be done and performed by them in relation thereto. He produced likewise a contract signed by himself, dated March 25, 1833, with Amos Chase, to convey one other fifth of the Austin Stream tract to him on certain conditions therein mentioned — which being performed by said Chase, the deed dated October 16, 1837, was executed in compliance with the agreement on his part.</p> <p>It appeared in evidence on the part of the plaintiff, that he had contracted to sell the land, but that as he was unable to give a deed, the bargain was not carried into effect.</p> <p>It appeared on the part of the defendants, that the plaintiff recognized the defendants’ right-to sell, but refused to sign a memorandum to that effect, alleging as a reason that if he did, he, Chase, might sell at any. price he pleased.</p> <p>The trial was had before Emery J., and on this evidence the plaintiff became nonsuit, with the agreement that the nonsuit should be set aside, and the defendants be defaulted, if in the opinion of the whole Court, the plaintiff had made out his case — with the right to be heard -in damage.</p> <p>The defendants never contracted to sell. The contract signed by the plaintiff of Feb. 15, 1835, was a mere nudum pactum. Bean v. Burbank, 16 Maine R. 458. Tlie receipts are the only indications of á contract. If, which is denied, these constitute a contract to sell on the part of the defendants, then either a deed or a bond was to he given on the first payment being made. The plaintiff was not to give security without first having a deed. If a bond were given, then the defendants had sufficient security. They were not bound to give a deed as they had not the title. Security was not to be given unless the plaintiff first had a deed. Satisfactory security means reasonable security — and had the defendants conveyed the land, a mortgage back of the premises upon which a third had been paid would have been a compliance with the contract in that respect. The plaintiff has done all which was to be done on his part and the defendants having failed to comply with the terms on their part, the. plaintiff has a right to rescind the contract, if one existed, and recover the money by him paid.</p> <p>The receipts upon which the plaintiff relies, negative the suggestion of a contract without consideration. They purport to be in part payment of a contract. The receipts and contract signed by the plaintiff relate to the same land and fully show the contract and its terms. The money paid cannot be recovered back, for the contract was not rescinded nor was there a right to rescind it. Smith v. Haynes, 9 Groenl. 128. The undertakings are dependant. Bank of Columbia v. Ilayner, 1 Pet. 484 ; Stone v. Fowls, 22 Pick. 166; B,obb v. Montgomery, 20 Johns. 15. To entitle the plaintiff to rescind the contract he must show the vendor in default. 2 Phil. 83, 65, n. a. If not in default the action is not maintainable. Dawdle v. Camp, 12 Johns. 451; Ketchum v. Evert son, 13 Johns. 359.</p> <p>The security was to be first furnished, whether the defendants gave a bond or deed — this not being done, the plaintiff has no right to claim a performance of the contract on the part of the defendants — nor to rescind it because neither were offered.</p>

From the trustee’s disclosure it appeared, that she purchased of Susan Chesley, certain bank shares, for which she paid by her negotiable note for the amount agreed upon, upon which she had made divers payments —- that she was the daughter of Joseph and Susan Chesley — that her father had more than twenty-five years before the death of her brother Albert, absconded and left her mother and family without making any provision for their maintenance — that he had resided in…

This was a writ of error to reverse a judgment — rendered by a justice of the peace in an action of debt, brought by the defendant in error, as clerk of a company of militia, against the plaintiff in error, to recover' a fine for non-appearance at a regimental muster. The writ was returnable before a magistrate in the town of Standish.

This was assumpsit against the defendant as indorser of a promissory note, dated August 14, 1837, for $ 1000, signed by Joseph Whitney, and payable to the defendant, or order, on demand, with interest.

This was replevin for one yoke of oxen, one horse and wagon and buffalo skin. The plaintiff was a deputy Sheriff and as such on the first day of June, 1837, attached the oxen on a writ in favor of Henry Hall v. Joseph H. Lambert. On the fifth day of April, 1837, he attached the-horse, wagon and skin on a writ in favor qf Daminicus Harmon v. Same. These suits were prosecuted to final judgment.

This was a bill in equity, and was heard on bill and demurrer. The decision having reference only to the plaintiff’s title, the facts in the bill relating thereto are alone reported. On the 3d day of May, 1837, one Nehemiah Varney owed the defendant, and Asa and William Legrow, the sum of two hundred and thirty-seven dollars.

This was assumpsit upon a note of hand signed by the defendant, which was secured by mortgage. The plaintiff had entered to foreclose, but the three years had not expired from the time of his entry. The defence was that the mortgaged premises were of more value than the debt — and that if the note was not to be considered as paid, that the plaintiff should account for the rents and profits of the premises in part satisfaction of it. cited West v. Chamberlain, 8 Pick. 336.

Exceptions from the District Court, Whitman J. presiding. This was an action of trespass for taking and carrying away the plaintiff’s cow. The defendant pleaded the general issue, and filed a brief statement justifying as collector of the town of Peru for the years 1837 and 1838. It was admitted that the cow was taken and sold by him arid that the balance of the price exceeding the plaintiff’s tax, was tendered him.

Assumpsit on a note of hand dated June 30th, 1835, for $400, signed by the defendant and payable to one Sumner Stone or order, on or before the 30th of June, 1839, and endorsed by said Stone in blank. The plaintiffs were not partners, but each separately and at different times purchased one half of the note declared on.

This was a. petition for a review, 1,o which a demurrer was filed. The facts sufficiently appear in the opinion of the Court. insisted that the officer’s return was conclusive, and that the plaintiff’s remedy was against him for a false return, and cited Bruce v. Holden, 21 Pick. 189; Stinson v. Snow, 1 Fairf. 263; Agry v. Betts, 3 Fairf. 415. referred to st. 1821, c. 57, ■§> 1, 2; st. 59, § 1, 2.

This was a bill in equity. A preliminary question arose as to the sufficiency of the proof establishing the death of Charles D. Morton, which was submitted to the Court.

This was an appeal from the decree of the Judge of Probate approving the will of Stephen Neal. The decree was reversed in this Court, and both parties moved for costs.

This was an action of debt on a bond, conditioned to cite the creditor and make a disclosure. The defendants read in evidence, though objected to, the certificate of two magistrates, showing that be bad notified the creditor, and had taken the poor debtor’s oath.

This was an action of ejectment, wherein the plaintiff' demands seizin and possession of a certain strip of land adjacent to a tract set off' on execution to one William Cobb, Feb. 4, 1828, as the property of Daniel Lunt, deceased. The defendant pleaded the general issue.

<p>This was an action of trespass quare clausum. For the purpose of settling a preliminary question, the plaintiffs and defendant agreed that the locus in quo was a school lot situated in Poland, being lot No. 116 — that this lot, and one other, were originally laid out and reserved by the proprietors of Bakerstown for the use of schools, and that those two lots are the only school lots, or land ever owned by Poland and Minot, or either of them, or that were ever held for the use of schools in said towns or either of them. Bakerstown was incorporated into a town by the name of Poland, which was divided subsequently, and a part set off by the name of Minot. The acts of incorporation of Minot and Poland, which make part of the case, are referred to so far as may be material, in the opinion of the Court.</p> <p>If in the opinion of the Court the town of Minot ought to have been joined in the action, the plaintiffs are to become nonsuit, otherwise the action is to stand for trial.</p> <p>The cause was argued in writing, by</p> <p>who contended that the lot in dispute was not within the provision of the special law incorporating Minot--Mass. Spec. Laws, vol. 2, p. 477, <§> 2, which provides that the public lands appropriated for the support of schools, &c. &c. shall be estimated in the same proportion each town paid at the purchase thereof, because the lot in dispute was private property when reserved — and not purchased by the plaintiffs and not within the intention of the legislature.</p> <p>referred to act of incorporation of Minot, passed Feb, 17, 1795, Mass, Spec. Laws, vol. 2, 478, by virtue of which he insisted that the town of Minot became jointly interested in the school lands with the town of Poland. The custody of the lands should be in the original proprietors until' trustees should be appointed. Shapleigh v. Pilsbury, 1 Greenl. 280. The use being for the towns, they should join. If tenants in common, the suit should have been brought by both jointly. Gilmore v. Wilbur, 12 Pick. 124; Daniels v. Daniel$, 7 Mass R. 135 ; Austin 8f al. v. Hall, 13 Johns. 286.</p>

<p>Bill in equity for an injunction to stay proceedings at law, and for a discovery and relief. None of the parties to the bill Were residents of this State, at the time it was filed. The only service was by leaving a-subpoena with Wm. P. Haines, who was the attorney of the defendant, Hack, in the action — ’the further proceeding in which this bill is brought to enjoin.</p> <p>The facts Upon which the complainant claimed to sustain his bill, are set forth in the opinion of the Court.</p> <p>To this bill, W. P. Haines, denying that he appeared as the' attorney to or by the authority of the defendants, and asserting that he appeared only in obedience to the summons of the Court, demurred in his own name for the causes following:— Because both the parties to the bill were residents of other States, and had no property hete — because the subject matter of this bill was pending before this Court as a court of law — because this is an attempt to try in equity, what has already been tried at law — and because the complainant has an adequate remedy at law.</p> <p>The case was submitted to the Court upon written arguments.</p> <p>This Court has no jurisdiction, because the parties reside in other States, and have no property here. Bissell v. Briggs, 9 Mass. R. 462: Hall v. Williams, 6 Pick. 232: Story’s Conflict of Laws, 459; Story’s Eq. <5> 81. Because the powers of this Court, as a court of law, are sufficient for the purposes of justice, and the subject matter of this bill is now pending before the Court. Story’s Eq. PI. § 473, § 481, 482; Smeed v. Coyle, 4 Litt. 163; 2 Barb. & Har. Dig. 13; McCarty v. Burrows, 2 Ham. 21; Morrison, Ex’r, v. Hart, 2 Bibb, 4; Story’s Eq. PI. § 481. This Court will not interfere, because it has been already settled at law. Simpson v. Hart, 1 Johns. Ch. 91; McVicar v. Wolcott, 4 Johns. 510.</p> <p>The service on Haines, as the attorney of record, is good. Smith’s Ch. Prac. 116; 1 Hoff. Ch. Prac. 109; Smith v. Hibernian Mining Co. 1 Sch. & Lef. 238; Dove v. Baker, 1 Ch. Ca. 67; Jones v. Boston Mill Cor. 4 Pick. 507; Pratt v. Bacon, 10 Pick. 126. The attorney, as such, cannot demur. A demurrer can only be made by a defendant. Story’s Eq. PI. 346, 363. As a plea to the jurisdiction it is bad. It should point out where the matter ought to be determined. Lord Derby v. Duke of Athol, 1 Dick. 129; Nabob of Carnatic v. East Ind. Co., 1 Ves. 373. If bad in part, it is bad for the whole. Baker v. Pritchard, 2 Atk. 388; 2 Mad. Chan. 286 ; Higginbotham v. Burnell, 5 Johns. Ch. 186; Hoff. Ch. Prac. 27 ; Story’s Eq. PI. 350. If neither of the defendants appear, the attorney cannot appear as such — and then there is no demurrer, which the Court can consider.</p> <p>The courts of common law cannot give an adequate remedy. An injunction is prayed for. 2 Story’s Eq. § 891. Fraud is charged. A demurrer to a bill praying for relief and charging fraud, should be overruled. Manningham v. Bolingbroke, Dick. 533. The demurrer admits the facts charged, as true. Atterson v. Mair, 2 Ves. 95; 4 Brown C. Cases, 270 ; Brooke v. Hewitt, 3 Ves. 253. A judgment fraudulently obtained, will be enjoined. Marine Ins. Co. v. Hodgdon, 7 Cranch, 336. A bill lies where the relief at law is inadequate. Charles Hirer Bridge v. Warren Bridge, 6 Pick. 376; Fay V. Valentine, 12 Pick. 40; Weymouth v. Boyer, 1 Ves. 416; Graham v. Stamper, 2 Vern. 146; Burroughs v. Jemino, 2 Ste. 733; Bernis v. JJpham, 13 Pick. 169; Mitford’s Plead. 166.</p>

<p>Money deposited with a Saving institution, to be repaid at certain times prescribed by the institution, may on demand in pursuance with the bylaws, be sued for in assumpsit — and it affords no defence that the institution, having in accordance with its by-laws invested its funds in stocks which have depreciated, is unable to repay the whole amount received.</p> <p>Whether a Court of Equity on a bill brought by the institution against the several depositors, would not apportion the loss among them in proportion to their deposits — guare.</p>

Assumpsit on a note of han.d signed by the defendant for $ 200, dated May 28,1835, and payable in one, two, and three years, to Daniel Herring, Treasurer of Poland, or his successor — with interest annually. The facts in the case are fully stated in the opinion of the Court.

Exceptions from the District Court, W estern District. This was an action on the case for the recovery of damages for the non-performance of a contract made between the parties, for the delivery of a stipulated quantity of hoe shanks. To prove the contract, the plaintiff introduced the following memorandum, dated Oct. 31, 1838: — “ This day contracted with Messrs.

This was an action of dower. The marriage of the demandant with Eli Hamlin, and his death, were admitted. It was proved that dower was duly demanded.

This was an action to recover dower. The facts upon which the decision was made, sufficiently appear in the opinion of the Court.

This was an action of assumpsit, wherein the plaintiffs declare on a special agreement of the defendant to pay for certain threshing machines manufactured by plaintiffs for him. There were likewise counts for labor and materials furnished, money paid, and on an account annexed.

This was an action of trespass quare clausum. Ttie general issue was pleaded. The trespass alleged was for breaking .and entering lot 69, third division, in Standish, and for cutting down and carrying away a number of pine trees. The plaintiff offered in evidence a deed of said lot from Mehitable Pierce, administratrix of William Pierce, to himself.

Assumpsit for use and occupation. At the trial before Emery J. the defendant offered the deposition of Abraham Anderson, who was proved to be unable to attend court, taken in perpetuam at the defendant’s request by C. B. Smith, Notary Public. Notice of the taking of said deposition, and that the deposition was to be used in the present suit, was duly served on the counsel for the adverse party.

Replevin against the defendant, who justified the taking by virtue of a precept in favor of F. O. J. Smith, against one Joseph A. Lambert. On the trial, before Shepley J. a verdict was rendered in favor of the plaintiff, which the defendant moved to set aside, as against law and against evidence. The facts sufficiently appear in the opinion of the Court. The case was submitted without argument.

This was an indictment for adultery with one Deborah Hodgskins. To prove the marriage of the defendant, the Attorney General called Priscilla Tripp, who testified that Chip-man Hodgsldns was her brother — that she was present when he was married to Abigail Thurlow at the house of her father, Richard Thurlow: She' could not state how long ago they were married, but should think it was about twenty-five years ago. She could not state by whom they vyere married.

This was an action of assumpsit, which was submitted to the Court for decision on the following facts. The defendant and the plaintiff were prior and subsequent indorsers on a promissory note, dated Jíov. 21, 1836, for $5000, signed by Henry Ilsley and Henry 3. Ilsley, and payable to Henry J. Ilsley in one year, and by him indorsed. A demand on the makers was seasonably made, and due notice of such demand and non-payment was given the indorsers.

<p>A schedule referred to in a mortgage of personal property, as a part of the same, must., equally with the mortgage, be recorded in the town clerk’s office, to give effectual notice to the public.</p> <p>If the mortgage be recorded, and the schedule tints referred to is not, this is not a sufficient compliance with the provisions of st. i 839, c. 390.</p> <p>Notice to the creditor, prior to the attachment of a mortgage of personal property, supersedes, as to such creditor, the necessity of recording the mortgage.</p> <p>But such notice, to be effectual, should bo a notice of all which the statute requires to ho recorded.</p> <p>Where there was a schedule referred to, and made part of the mortgage, notice to the creditor that the goods wore claimed by the mortgagee under the mortgage, they being part of the goods conveyed by such mortgage, is no), sufficient, without clear notice of such schedule — and the mortgage and schedule being Ircated as distinct, notice of the existence of the schedule is not therefore to be inferred.</p> <p>The object of recording is, that creditors may know the situation a,nd the value of the property pledged, and the sum thereby secured — so that if they should think proper, they might discharge the debt thus secured, and attach the property mortgaged.</p> <p>If the mortgage and schedule are left with the clerk, while they remain unrecorded, they are sufficient notice to the public —but after the clerk has made his record, that is the only record the law recognizes.</p>

This was an action of trespass quare clausum. The general issue was pleaded.

Assumpsit for money had and received, and on a special contract.

Tuts was an action of assumpsit brought originally before a justice of the peace, by the plaintiff, to recover the amount alleged to be due on a town order drawn by the selectmen of the town of Cornish, of which the following is a copy : “ Cornish Surplus Revenue Deposit Fund. “ Sum, $16,32. “ To Augustus Johnson, Treasurer of Cornish, or his' successor in said office, “ Pay to Jonathan Sweat or bearer, five dollars on demand and eleven dollars and thirty-two cents in…

<p>This was an action of ejectment, wherein the plaintiff demanded possession of an undivided fourth part of a certain tract of land in North Berwick, describing the same by metes and bounds. The general issue was pleaded.</p> <p>The plaintiff’s title was derived from Nathaniel Hobbs by his deed dated Feb. 12, 1836.</p> <p>There was evidence introduced, tending to show both that said Hobbs was and was not disseized at the time of this conveyance.</p> <p>Much evidence in relation to the points in controversy was introduced — but as the testimony upon which the case was decided is fully set forth in the opinion of the Court, it is not here reported.</p> <p>Upon the whole evidence, Emery J. who presided at the trial, ruled that the plaintiff could not maintain his action, inasmuch as Nathaniel Hobbs was disseized at the time of the execution of the deed from him to the plaintiff, and that nothing passed thereby ; and by consent, the plaintiff became nonsuit, with leave to move, that the nonsuit be set aside and that he proceed to trial, if on the report of the Judge, the Court should decide that the plaintiff could maintain his action on this evidence, or was entitled to have the testimony submitted to the consideration of a jury, either upon the point of disseizin or of title.</p>

Exceptions from the District Court. From the disclosure of the said Appleton, it appeared that in 1839, he was appointed by the judge of probate for the county of York, administrator on the estate of Jonathan Babb, late of Buxton, in said county, deceased — that he took upon himself that trust and gave bond according to law — that said Babb’s estate was by him represented insolvent, and that a commission of insolvency issued thereon, — that the creditors of said Babb proved…

This was an action of assumpsit. The writ was dated August 3,' 1839, and was returnable to the October Term of this Court. It was duly entered and continued from term to term, to the October Term, 1840, when the defendants filed an offer in writing to be defaulted for the sum of ¡$150 — which was duly entered on the docket of the Court — but which was not accepted by the plaintiffs.

Exceptions from the District Court. This was an action of assumpsit.

Bill in equity. From the complainants’ bill it appeared, that the respondents had filed a bill against them, to have their rights under the last will of Elizabeth Sewall ascertained, and for the appointment of trustees for the preservation of them.

Error, to reverse the judgment of a justice of the peace, in an action of debt, brought to recover the penalty given by statute for non-attendance at a company training. One error assigned was, that the declaration did not allege the penalty to have been incurred against the form of the statute. A motion was made at the argument, by the counsel for the defendant in error, to amend by inserting “ against the form of the statute.” cited Peabody v. Ilayt, 10 Mass.

<p>Assumpsit for supplies furnished one Amos W. Wormwood and wife, and nine children.</p> <p>It was admitted that Wormwood had his legal settlement in Alfred, that he lived in Kennebunk, and had resided there about one year previous to his receiving any supplies from tho plaintiffs — that he was taken sick in Kennebunk with the smallpox a short time after his arrival in a coaster from Boston, where he had been employed as a laborer — that he and his family, to wit, wife and four children, remained sick of the aforesaid disease about six weeks — that after the said Wormwood and family were taken sick, to wit, on the 31st day of December, 1839, the overseers of the poor of Kennebunk notified the overseers of Alfred, that said Wormwood and his family, naming them, were sick with the smallpox, and requesting the overseers of Alfred to order their removal or otherwise provide for them” — it was likewise admitted, that the overseers of the poor of Alfred, within a few days after the receipt of said letter, returned an answer to the overseers of the poor of Kennebunk, denying the right of Kennebunk, under the circumstances, to charge the expenses of Wormwood and family to the town of Alfred, and referring them to the act relating to the smallpox. Part of the expenses in the plaintiffs’ account were for expenses in moving the house, &e. for the residence of said Wormwood and family, and for the protection of the inhabitants of Kennebunk, and to prevent the spread of the disease.</p> <p>Upon these facts, the plaintiffs’ right to recover was submitted to the consideration of the Court — and if the defendants are liable, the amount of damages is to be determined by an auditor, or by' a jury, if the defendants should so wish.</p> <p>referred the Court to St. 1821, c. 102, <$> 11, and c. 127, <§, 1.</p> <p>argued that Wormwood did not fall within the provisions of the law for the support of the poor, c. 102, $ 11 —but within those of the act to prevent the spreading of the smallpox, c. 127, § 1. The first cited law, imposes upon the overseers of the poor the duty of providing for the comfort and relief of persons found or residing in their towns — and who stand in need of relief, but having a laivful settlement in other towns. Ch. 127, $ 1, makes it the duty of the selectmen to make provisions for the preservation of the inhabitants, by removing persons coming from abroad-or belonging to said town, visited with the smallpox, &c. In all the provisions of the poor law the pauper is under the care of the overseers of the poor.</p> <p>By c. 127, the overseers of the poor have no control over the person, but that is confided to 'the care and control of the selectment — neither in this statute is the phrase legal settlement used.</p> <p>The different phraseology used in these statutes — legal settlement — belong and belonging, could not have occurred except to carry out a different intention of the legislature.</p> <p>There are good reasons why the burthens imposed by this statute should be thrown upon the town to which the person belonged — or at which he arrived when coming from abroad. The expense is for the benefit of the town incurring it. The poor law provides that the pauper shall be supported at the expense of the town where he has his legal settlement untibhe be removed; but here Wormwood, was under the charge of the selectmen of Kennebunk and his removal would have been a violation of law.</p> <p>•If the defendants are liable it is only for the expenses necessarily incurred for the paupers’ relief — and not for what was done for the preservation of the health of the inhabitants of Kennebunk.</p>

Exceptions from the District Court. This was an indictment for larceny alleged to have been committed by the defendant in taking and carrying away three sides of sole leather, the property of one Ezra Eastman, of Limerick, on the 23d day of October, A. D. 1839.

<p>This was an action of assumpsit brought by the plaintiff as indorsee of a note of hand, dated Newburyport, July 10, 1835, given by William Palmer and Samuel Phillips for $3302,03, payable in three years with interest annually to the order of Eben Webster, and by him indorsed and likewise by Daniel Burnham and David Webster. Above the names of the indorsers was written, “ I hold myself responsible and waive all notice.”</p> <p>It appeared in evidence that the above note, indorsed S. S. Fairfield, cashier, to John Andrews, cashier of the Mechanics’ Bank, Newburyport, was delivered by said Andrews to W. Woart, a notary public at Newburyport, Mass, by whom the note was on the 13th July, 1838, presented to Samuel Phillips, one of the promissors, of whom he demanded payment, which was refused. That inquiry was made for Palmer, the other promisor, and .for the indorsers — but they could not be found at Newburyport.</p> <p>Upon this evidence the defendant was defaulted, with an agreement of the parties that if the Court should be of opinion, that the evidence offered by the plaintiff was not sufficient to enable him to maintain the suit, the default was to be taken oil’, and the cause stand for trial, otherwise judgment was to be rendered for the plaintiff.</p> <p>argued — that this note had never been discounted nor left in a bank for collection — and that the presentment should have been on the 10th of July. The plaintiff should show, affirmatively, that it was in the bank as early as the 10th. If placed in the bank subsequently to that day, it would be too late. The holder might retain a note till the 11th — then place it with a cashier, procure his indorsement thereon — and have the demand made on the 13lb. But this would be after the indorser was discharged. The plaintiff is bound affirmatively, to show either that it was discounted, or left for collection, and not producing that evidence, the suit cannot be sustained. Warren v. Gilman, 15 Maine R. 70.</p> <p>By St. 1824, c. 272, all bills out. of the State are entitled to grace. The demand on the maker was sufficient, and is fully proved. Shed v. Brett, 1 Pick. 401; Clark v. Bigelow, 16 Maine R. 248; Phoenix Bank v. Hussey, J 2 Pick. 483; Warren v. Warren, 16 Maine R. 260; Green v. Jackson, 15 Maine R. 136. Possession is sufficient evidence of title. Lord v. Appleton, 15 Maine R. 270; Fisher v. Bradford, 7 Greenl. 28; McDonald v. Smith, 14 Maine R. 99. When one has a. beneficial interest, the action may be rightfully maintained in his name. Fair-field v. Adams, 16 Pick. .381; Folger v. Chase, 18 Pick. 66; Ellsworth v. Brewer, 11 Pick. 316; Bailey on Bills, 390.</p>

This was a writ of entry. The general issue was pleaded and joined. To support his suit, the demandant read in evidence a bond given to the Judge of Probate for the county of York, signed by Planeas Ricker, as guardian of the demandant, and by Benjamin Thompson and Joshua Roberts, as sureties, dated Oct. 20, 1820.

This was a writ of entry on the seizin of the demandants, in which they claimed to recover a tract of land in Kennebunkport. The general issue was pleaded.

This was an action of trespass for breaking and entering the plaintiff’s close, in Lovel, and carrying away from his dwellinghouse a Franklin stove. The writ is dated May 28, 1839. The plaintiff proved that on the 10th of August, 1835, he was the owner of the premises described in the writ — and that on that day he conveyed the same to Jonathan Small, who on the same day mortgaged the same premises to the plaintiff, to secure the payment of the purchase money.

<p>This was an action of replevin, for a horse, gig, and harness. The writ was dated November 22d, 1838. The plea was the general issue, non cepii. The plaintiff proved that the defendant attached the property in question, as coroner, on a writ, in a suit, Levi Folsom v. Jonathan Small, Aug. 21, 1838, and took a receipt from Dexter B. M oore for the same property. He also proved that judgment was rendered in the suit, Folsom v. Small, aforesaid, Oct. 12, 1838, and execution issued same day. It. also appeared, that the defendant demanded the property of the receiptor aforesaid, before the expiration of thirty days after the rendition of the judgment aforesaid, in said suit of Folsom v. Small; and that the receipter told the defendant that he would show it to him (defendant) ; and that the defendant said it might remain where it was, and that he was going to sell it.</p> <p>It was also proved, that Jonathan Small was brother of the plaintiff, Josiah Small; and that the property in question belonged to said Josiah, he having purchased the same from said Jonathan about one year before the attachment aforesaid. It was also proved that the same property was suffered by the plaintiff to remain in Jonathan’s keeping and possession, at Lovel, where it was attached, from the time of the purchase aforesaid until the attachment; and that it was never removed from his keeping, but has ever remained with him, in the same manner as before the attachment; that Jonathan Small was a physician, and that he had the horse, gig, and harness, of his brother, the plaintiff, to use in his practice, and was to pay his brother a fair price for their use; and that the same was still in his keeping, and in use by him.</p> <p>Jonathan Small testified, that the defendant' told him that he should sell the property attached if it was not replevied.</p> <p>Dexter B. Moore testified, that after the attachment, the property was suffered to remain in Jonathan Small’s possession, by his consent, he, Moore, having the oversight of it.</p> <p>Upon the foregoing statement of facts, appearing in this case, the Court are to render such judgment as they shall deem proper.</p> <p>Replevin will not lie. There, has been no taking, nor detention from the plaintiff. Maine Laws, St. 1821, c. 63, § 9. The return of an officer, that he has attached, is not conclusive of taking so as to subject the defendant to an action of trover. Bryant v. Willard, lOjiPick. 166.</p> <p>If there was a taking or detention, actual or constructive, still the property was all the plaintiff’s. The possession was his, and Small was his bailee. After the expiration of thirty days from the judgment in the suit in which the attachment was made, all claim by the officer on account of his attachment was extinguished. Benny v Willard, 11 Pick. 519. As the property was in the plaintiff, the attachment gave the officer no rights. The receipter would, if sued, have been discharged on proof of that fact. Fuller v. Holden, 4 M ass. R. 498; Tyler v. Ulmer, 12 Mass. R. 169; Learned v. Bryant, 13 Mass. R. 224. An officer is not liable to the true owner of property attached by him, when such owner has the possession of the property attached or has appropriated it to his own use. Fisher v. Bartlett &f al. 8 Greenl. 122; Laihrop v. Cook, 14 Maine R. 414. The plaintiff by his bailee having always been in possession cannot maintain this suit. A mere threat to attach or seize on execution does not constitute an attachment or seizure nor furnish the foundation for a suit against an officer.</p> <p>The case is conclusive as to the fact of an attachment — as to the detention, this is clearly distinguishable from the case of Laihrop v. Cook, 14 Maine R. 414, — as in that, the receipter was the plaintiff — here he was a stranger.</p>

This was a petition to enter an appeal, or for a review and' new trial of the action appealed.

This was a petition for leave to enter an appeal .from a decree of the Judge of Probate. The facts appear in the opinion of the Court.

Exceptions .from the District Court. This was an action of assumpsit brought against the defendant, as executor of the will of Noah Sprague, by the plaintiff, as physician, for medical and surgical attendance upon said Sprague, during his last sickness. The defendant pleaded the general issue, and filed a brief statement, in which he alleged that the said estate was represented insolvent, and that he had fully administered the same.

<p>Tho provision of Cl. 1839, c. 412, § 2, by which certain properly disclosed is to bo appraised, does not apply, save when the debtor has made the lull disclosure provided by Ct. 1833, e. U!5, § 4.</p> <p>The adjudication of the justices before, whom the disclosure of the debtor is made — that the debtor having disclosed sufficient, in the, opinion of tile justic-s, to pay the debt, is not bound to answer further — .and, having offered the property disclosed, that he is entitled to his discharge, being erroneous — is no defence to a suit on the bond.</p>

Exceptions from the District Court. This was an action of debt on a bond, dated Nov. 8, 1838, signed by the defendants — the condition of which was, “ that whereas the said Otis Kennedy, has this day bargained and agreed with the said Babb, as follows, viz. in consideration that said Babb on or about the 10th day of May next, shall convey to said Kennedy, by deed, the lot of land on which said Babb lives, &c. and in as good order and condition as it now is, the privilege of…

This was an action of assumpsit, in which the plaintiff sought to recover $600, for the transportation of money between Thomaston and Boston, for a series of years, at the rate of 0100 per annum, and upon a special contract made by the defendants.

This was a writ of entry brought to recover possession.of certain lands in St. George. The general issue was pleaded and a brief statement filed alleging the title to be in William Pierce and others. The plaintiff replied to this brief statement by denying the title of Pierce and others, and the right of tenant to set up said title, because he had in no way connected himself with such supposed title of Pierce and others.

<p>This was an action of ejectment, brought to recover certain real estate, described in the plaintiff’s writ. The defendant disclaimed all the land embraced in the plaintiff’s writ, except the estate set off to him by virtue of an execution hereinafter referred to, under which levy he claims title.</p> <p>It was admitted, that on the 22d of Aug. 1836, the estate demanded was the property of one Wm. H. Fales, and that on that day the tenant sued out his writ of attachment against said Fales, and caused all his real estate in the county of Lincoln to be attached. The writ was duly entered, and judgment rendered thereon in favor of the plaintiff, April Term, 1838, upon which execution duly issued, by virtue of which a levy was seasonably made on that portion of the demanded premises claimed by the tenant.</p> <p>The officer, in his return, certifies, “ that the within named debtor is not, and for some months has not been within this State; and understanding that David Fales and Robert L. Dodge were his agents, I called upon them to choose an appraiser for him, and they selected Roland Hatch; and I appointed thereupon said Hatch for an appraiser for said debtor.” It further appeared from the. return, that part of the premises described in the return were excepted from the levy.</p> <p>The demandant proposed to prove, (if admissible) that David Fales and said Dodge, who is the plaintiff in this suit, were the agents of the debtor at the time of the levy, and that the said Fales then resided without the State.</p> <p>On the 18th of Jan. 1837, said Wm. H. Fales, by deed duly acknowledged and recorded, conveyed the premises levied upon, to the demandant.</p> <p>The plaintiff proposed to prove that the said Dodge was not the agent of Wm. H. Fales, and that though said Fales was absent at the time of the levy, that his family resided in the neighborhood; and that said Dodge was not present at the levy, and did nothing in relation to it; that said Fales did name an appraiser, and that an appraiser was agreed to by the counsel for the plaintiff and the officer, who was subsequently rejected, without the knowledge of said David; and that one of said appraisers was not sworn or affirmed.</p> <p>If the parol testimony proposed to be offered is not legally admissible, or would not be sufficient to control the other evidence in the case, and to change the decision which would be made on such other evidence alone, the Court is to decide upon the case as presented, and such judgment is to be rendered as may be conformable to law. If the parol testimony offered would be available, the facts arc to be submitted to a jury-</p>

This was an action of replevin. Plea — the general issue. The defendant filed a brief statement, justifying as a deputy sheriff the attachment, of the goods replevied, as the property of Edward Boyles on a writ in favor of Smith & Price against him.

This was a writ of error to reverse a former judgment of the Court in an action of trespass quare clausum, in which the plaintiff in error was defendant.

This was a writ of error to reverse a judgment of the Court of Common Pleas.

This was an action of assumpsit for certain paper hangings. The general issue was pleaded. The following contracts were introduced.

This was an action of the case against the defendant, as deputy sheriff, for an alleged neglect to return upon a writ against one Thomas C. Noble, certain goods said to have been attached thereon. Plea, the general issue. It appeared upon the introduction of the plaintiff’s writ against said Noble, that the only written order or direction thereon to the officer was in the following words, “ Mr. officer, attach suff.” below which were the names of the attorneys.

This was an action of covenant, broken, and was submitted by the parties to the decision of the Court upon the following agreed statement of facts. Prior to the date of the defendant’s deed, upon the covenants of which the action is brought, a county road had been established through the land conveyed, but not opened.

<p>This was an action of assumpsit for the support of Absalom Howes and family, as paupers, whose settlement was alleged to be in Windsor, in consequence of his having his home and dwelling there on the 21st day of March, 1821 — and to this point much testimony was introduced by both parties.</p> <p>Artemas Kimball, a witness for the plaintiffs, testified that on the 15th of March, 1821, he served a writ against said Howes in Windsor — that he made inquiries of several persons where said Howes resided in said Windsor — and then left the summons at a house and from his recollection had no doubt of its being at one of two places, Trask’s or Wingate’s. The defendants objected to the admission of this testimony, but Emery J. who tried the cause, overruled the objection and received the testimony.</p> <p>The defendants contended, that said Howes and his family resided in Pittston, before March 21st, 1821, and that he was then in the employ of one Linscott. Evidence was introduced, tending to show that said Linscott’s leg was broken before that time. The time having become material, for the purpose of fixing the true date thereof, the plaintiffs offered in evidence, the defendants objecting, a day-book of Dr. Neal, of Gardiner, containing two charges against Temple Linscott, one dated Sept. 28, 1821, and the other Sept. 29, of the same year, for reducing a fracture in his leg, and for medical attendance. It was further proved that Dr. Neal attended at Ballister’s camp and set Linscott’s leg — that he died in 1839, — that he was a regularly practising physician in 1820, and 1821, and that the book introduced was in his handwriting.</p> <p>The jury returned a verdict for the plaintiffs and the counsel for the defendants filed exceptions to the decision of the Court in admitting the aforesaid testimony.</p> <p>1. The testimony of Kimball was inadmissible. If it were proper to state his inquiries of individuals as to the pauper’s residence, it would be proper to give their answers, which would be clearly hearsay. To permit a witness to say that he made inquiries and then shut out the answer and yet at the same time permit him to' say what he did in pursuance of the inquiry, is equivalent to allowing him to give the answer.</p> <p>This testimony was not admissible as part of the res gesta. Declarations are only received because they illustrate the transaction. 1 Stark. Ev. 49. Here no transaction is illustrated. They are offered here to prove a fact, not to give color to or explain any act whatsoever.</p> <p>2. The book of Neal is admissible upon no principle. It is not testimony under oath. The truth of the charges are not to be supported against the person for whom the services were rendered. There is no necessity for its admission. It is introduced as evidence of an incidental fact arising in the trial of a cause, and placed upon an equality with the testimony of a witness. If this be admissible, would not any man’s books be received ? How can this be distinguished from charges and memoranda made by any person at any time.</p> <p>When acts of duty arising in a regular course of business require memoranda to be made for others, such memoranda are evidence after the death of the person making them. Union Bank v. Knapp, 3 Pick. 96; Welch v. Barrett, 15 Mass. R,. 380; Nichols v. Webb, 8 Wheat. 326 ; Lord Torrington’s case, 1 Salk. 285. These are all cases of charges made in the regular course of business. There is another class of cases, where book charges have been received in evidence though the persons making them were under no obligation to others on the ground that they were against the interest of the person so making them. Higiiam &f ux. v. Ridgway, 10 East, 108; Doe v. Robson, 15 East, 32.</p> <p>In this case Dr. Neal was interested to make the charges but in making them he was under no obligations as to others. They are not directly in issue — they are hearsay. 1 Stark. Ev. 46.</p> <p>Kimball testified to an act done and his testimony was properly admissible. Central Bank v. Allen, 16 Maine R. 71.</p> <p>The books of Neal were evidence. Leighton v. Monson, 14 Maine R. 208; 1 Metcalf & Perkins’ Dig. 51, and cases cited; McBride v. Watts, 1 Me Cord, 384; Minors v. Ship Mary, 1 Bay. 118.</p>

<p>This action was debt on a jail bond, dated April 4, 1836, given to the plaintiff as treasurer of the town of Belgrade, to procure the release of the principal defendant from commitment— he having been committed to prison for the non-payment of certain taxes assessed against him in the year 1834. One of the conditions of the bond was, that he should not depart-without the exterior limits of the county until lawfully discharged. The writ was dated July .18, 1837. The general issue was pleaded, and a brief statement filed, alleging that the bond was given under duress; that there was a breach of it the day it was given, and again in the May or June following ; that the bond was given to the wrong obligee; that the tax, for the non-payment of which the arrest was .made, had been abated before the suit was brought; and the statute of limitations.</p> <p>The case was submitted to the Court upon the following . facts. It was agreed that Weston was arrested by Richard Mills, the collector of taxes for the town of Belgrade, and was liberated from arrest, in the gaol office, by giving the bond in suit; that the plaintiff was treasurer of Belgrade in 1834; that Samuel Austin was treasurer in 1835, and John S. Minot in 1836, and Samuel Pago in 1837 ; that in May or June, 1836, said Weston went into the county of Somerset and remained there a week, and then returned to Belgrade.</p> <p>The defendants introduced a book purporting to be a record of orders for Belgrade, which was objected to by the plaintiff's; but upon an affidavit of Weston, in whose possession the order had been, that the same was lost, the Court admitted said book. The order was described in said book as “ an order to Richard Mills of sixty-two dollars sixty-seven cents, for the following abatements and demands among which was the following:</p> <p>“ C. Weston’s tax, 17,35</p> <p>Cost of committing to jail, 2,52”</p> <p>This order was dated July 17, 1837.</p> <p>The plaintiffs then proved, but the evidence was objected to, that on July 17, 1837, Richard Mills, the collector of taxes, by whom said Weston had been committed, applied to the selectmen for an order to the amount of $62,67, to enable him to settle with the treasurer; that said Weston had before applied for an abatement of taxes to the amount of two dollars, and it had been refused ; that he was a man of wealth; and that there was no intention ori the part of the selectmen to abate said Weston’s tax; but that the order was granted for the purpose of enabling the collector to settle his accounts. It was further proved, that some of the taxes referred to in the order were absolute abatements.</p> <p>1. The suit is rightly brought. The St. 1821, c. 59, § 26, does not apply. The statute only authorizes a suit in the name of the treasurer, but does not command it; It is only cumulative. Newcastle v. Bellard, 3 Greenl. 369. This suit is prosecuted for the benefit of the town, and is a bar to any further action. The bond in this case was not given to the treasurer. It was a misnomer — an error of the scrivener — to term the plaintiff treasurer; and the suit is correctly brought in the name of the present plaintiff. Anderson v. Langdon, I Wheat. 85; Sanford v. Sanford, 2 Day, 559; Sanders v. Filley, 12 Pick. 554; Skinner v. Somes, 14 Mass. R. 107.'</p> <p>The bond is not in conformity with the law of 1835. It is not a statute bond. The conditions not being complied with, the plaintiff can claim only debt, cost, and interest. Winthrop v. Dockendorjf, 3 Greenl. 156 ; Kavanagh v. Saunders, 8 Greenl. 422; Huntress v. Wheeler, 16 Maine R. 290. But the bond in this suit is good at common law. Hall v. Cushing, 9 Pick. 404; Woolwich v. Forrest, 1 Pen. 120; 2 Hall’s Am. Law Journal, 80; U. S. v. .Sawyer, 1 Gall. 87; Saunders v. Rives, 3 Stew. R. 109. Being a good bond at common law, the question of the statute of limitations does not arise. The condition that he shall not depart, &c. not being authorized by statute, is not a valid condition, to the breach of which the statute of limitations can apply. The condition that he will surrender himself, &c. is a valid condition, for the breach of which the defendant is liable. A bond • may be good in part, and void for the residue. Kav.anagh v. Saunders, 8 GreCnl. 422; Newcastle v. Reliard, 3 Greenl. 371; Triplet v. Gray, 7 Yerg. 17; Raker v. Haley, 5 Greenl. 240; Winthrop v. Dockendorf, 3 Greenl. 156; Burroughs v. Lowder fy aL 8 Mass. R. 373 ; Vroom v. Smith, 2 Green’s Rep. N. J. 479; U. S. v. Sawyer, 1 Gall. 99; 1 Hill. & Met. Dig. 435.</p> <p>The bond then being voluntarily given, the conditions being neither unlawful nor immoral, it • is binding on the obligors. Co. Lit. 206; 1 Bac. Abr. Condition N.</p> <p>There has been no abatement of Weston’s tax. The amount specified in the order on Mills, was'for the whole of Weston’s tax. But the selectmen have no authority to abate the whole. St. 1821, c. 116, <§> 13. Parol evidence was properly admissible to show for what purpose this was given. Nason v. Reed, 7 Greenl. 24. Th.e order is subject to the same explanation as a receipt would be. Mills was properly admitted to testify that it was not an abatement. If it was an abatement it could not operate as a good discharge — as a contract under seal cannot be discharged by parol. Farley v. Thompson, 15 Mass. R. 18; Sewall v. Sparrow, 16 Mass. R. 24; Bond v. Sampson, í L Mass. R. 42. It is competent to prove for what purpose this order was given. Bangs v. Snow, 1 Mass. R. 181.</p> <p>1. The action is barred by the Statute of Limitations. This is a bond under the law of 1822, c. 209, § 2, for the relief of poor debtors. Section 22 provides that any person committed shall be liberated on giving bond as is-provided in sec. 4. Section 21 sets forth the conditions of such bond. This Statute is not repealed by St. of 1831, c. 520. Neither is this law repealed by the law of 1835, because sec. 17, of that act provides that this act shall not be so construed as to apply to, or affect any suit or suits commenced, or rights vested under sec. 14 of the same act which prescribes the form of the oath, and substitutes, instead of commencement of the action, the assessment of the tax.</p> <p>Then a commitment grounded on an assessment made prior to tlie St. of 1835, does -not fall within its provisions — but is expressly excepted from its operations. In this case the tax was assessed and the warrant issued in 1834. Hastings v. Lane al. 15 Maine II. 137 ; Gouch v. Stephenson, 15 Maine R. 129; Wheeler v. Huntress, 16 Maine R. 296. One of the conditions of this bond, was, that Weston should not go beyond the limits of the county of Kennebec — the gaol limits being confined to those limits by St. of 1828. These gaol limits existed for all cases arising prior to the passage of the law of 1835, by which they were altered, although the commitment was after. Farley v. Randall, 22 Pick. 146.</p> <p>The bond in this case bears date April 4, 1836 — in the May or Juno following, Weston went without the county limits. The writ is dated July 18, 1837, being more than a year after the breach. Statute 1822, c. 209, § 11, limits the lime within which a suit can be commenced to one year.</p> <p>Whether the inhabitants of Belgrade knew of the absence of the defendant, Weston, is immaterial — they were bound to take notice when their rights accrued. Call v. Hagger fy al. 8 Mass. R. 425; Bishop v. Little, 3 Green!. 408 ; Brown v. Houdlette &/■ al. 1 Fairf. 399.</p> <p>If this bond is not good by Statute, it is not good at common law — there being no contracting parties authorized to take such a bond as this. Purple v. Purple, 5 Pick. 226.</p> <p>2. The tax has been abated. The selectmen could only abate it for the benefit of the defendants, c. 116, § 13. This case is not within the provisions of <§>' 59, of' the Statute before referred to. Parol evidence was inadmissible to alter this abatement.- Gray v. Wells, 7 Pick. 217.</p> <p>No action can be maintained in the name. of the present plaintiff, c. 59, >§> 26.</p>

<p>This was ail action of debt brought by the plaintiff as Judge Advocate to recover a fine imposed by a Court Martial. The general issue was pleaded, and a brief statement filed, denying that the Court was duly constituted or had jurisdiction.</p> <p>On the trial of this cause, before Weston C. J. the plaintiff introduced a militia order verified by Francis Davis, aid-decamp and orderly officer; the original judgment signed by the hand of the president, and a certified copy from the Adjutant-General’s office.</p> <p>Dudley P. Bailey, a clerk in the Adjutant-General’s office, testified that the original record which he brought into Court from the office was sent to that office by Maj. Gen. White, in Sept. 1838, in a letter.</p> <p>The defendant offered to prove that in Sept. 1837, Col. Nathan Fowler brought to Waterville a captain’s commission for him — that Fowler said he had one but did not show it — that Fowler went into the store of the defendant while he was engaged in another part of the store, laid the commission on the counter, and while it lay there, without having been seen by the defendant, one Getchel took it up and carried it away, and that it never came into the hands of the defendant, who was never qualified to act and never did act as captain. Upon the above evidence the defendant was defaulted, with the agreement, that if the evidence offered was admissible, and afforded matter of defence, the default is to be taken off and the action stand for trial, otherwise the default to remain.</p> <p>The Court had no jurisdiction — By' the constitution the defendant had a right to a trial by jury. Const, of Maine, Art. 1, $ 20; 4 BI. Cora. 5-; 1 Bl. Com. 413 ; Brooks v. Daniels, 22 Pick. 498. A Court Martial being a court of limited jurisdiction, the plaintiff must show that fact. Nothing will be intended in its favor. Brooks v. Adams, 11 Pick. 441; Brooks v. Davis, 17 Pick. 148; Brooks v. Graham, 11 Pick. 445 ; Winn v. Wethers, 3 Cranch, 333 ; Mills v. Martin, 19 Johns. 7 ; Vose v. Howard,, 13 Maine R. 268. The judgment is to be certified to the Major-General. St. 1837, c. 276, § 13. The Adjutant-General’s office is not the place of deposit. St. 1837, c. 276, § 10. There is no penalty for neglecting or refusing to take a commission.</p> <p>referred the Court to St. 1837, c. 276, <§. 10, 39 ; Brooks v. Daniels, 22 Pick. 498 ; Green v. Gill, 8 Mass. R. Ill; Commonwealths. Cutter, 8 Mass. R. 279 ; Howard s. Folger, 15 Maine R. 450.</p>

<p>ExceptioNs from the District. Court.</p> <p>This was assumpsit, to recover the sum of twenty-five dollars, deposited with the defendant by the plaintiff, as a stakeholder, on a bet on a horse-trot.</p> <p>The following facts were admitted by the defendant — that a bet was made between the plaintiff and one Rufus Hewitt, and that each deposited twenty-five dollars in his hands, to be given up to the winner, after the trial of speed was over — and that after the trot was over, the plaintiff forbade the stakeholder, the defendant, paying over the money to said Hewitt and demanded of him his twenty-five dollars, alleging that there was fraud and unfairness in the trotting — and that notwithstanding this the defendant, on receiving a bond of indemnity from the said Rufus Hewitt paid the whole fifty dollars over to him.</p> <p>The plaintiff offered to prove that there was fraud and deception used by said Hewitt and his associates — and that in fact he did not win the money; but Redington J. before whom the cause was tried, rejected this evidence, and directed a nonsuit. To which ruling and direction the plaintiff filed exceptions.</p> <p>By the civil law, a wager between two persons not interested in the subject matter is not a valid contract. Though the common law of some States may be different it is believed that the law of this State is coincident with-the civil law. Perkins v. Eaton, 3 N. H. R. 152; Lewis v. Littlefield, 15 Maine R. 233; Amory v. Gilman, 2 Mass. R. 1; Hemenway v. Eaton, 13 Mass. R. 10S.</p> <p>All wagers in this State are unlawful. Lewis v. Littlefield, 15 Maine R.- 233. The statute against gaming gives no action against the stakeholder, but only against the winner. St. 1821, c. 18, <§> 2. It does not alter the liability of the stakeholder, but leaves that as at common law. By the common law, no action could be maintained by the loser against the winner. The law leaves the parties to such a contract, as it finds, them. Bent v. Place, 6 Cow. 431; Kent v. Knickerbocker, 5 Johns. 334; McKeon v. Caherty, 1 Hall, 300; Same v. Same, 3 Wend. 494; Me Outturn v. Gourlay, 8 Johns. 147; Greenwood v. Curtis, 6 Mass. R. 381. The stakeholder is as much a party to the illegal contract as the parties to the wager. His promise is to pay as the event may turn. Before the event has happened, upon which the money is staked, there is a chance for repentance — but after that the money cannot be recovered back. Yates v. Foote, 12 Johns. 1.</p>

This was a petition for a writ of certiorari, to bring up the record of the proceedings before the court of County Commissioners, on the petition of Jacob Butterfield and others for the location of a road, &c. The petitioners assigned the following grounds for granting the writ of certiorari prayed for. 1. “That it does not appear by the record of the proceedings, that any notice was given to the parties interested prior to the laying out of said highway.” It appeared from…

<p>This was a complaint under the Statute, for flowing, and is submitted to the Court for their decision upon the following statement of facts.</p> <p>It was instituted against Washington Sprague and Moses Sprague, and during its pendency, Moses has deceased and Augustus Sprague administrator of the estate of Moses has appeared and assumed the defence. The original respondents claimed to be the owners of certain pieces of land in Greene, with which is connected a certain stream whereon are the dam and the mill which occasion the flowing of the land of the complainants, for which they seek redress. The title to the land and water privileges where the dam and mills are situate, in said Greene, was derived to William Sprague, father of the respondents, by two conveyances, at different times, and from different persons, viz. the first from Moses Little, by deed dated Sept. 13, 1783. This deed purported to convey “ Lot No. 151, and lot No. 164, together with all the privileges and appurtenances thereto belonging, excepting and reserving out of the same, the one half of the grist mill and saw mill built by said Sprague on the said lots, together with one half of all the privileges and appurtenances to the said mills, as the improving a mill yard, &c. Also, said Sprague shall have a right of raising a head of water at all seasons of the year, not damaging the owners of the land above, as also said Little reserves to himself.”</p> <p>The second conveyance was from Josiah Little, and was dated July 1 L, 1818. The title by divers conveyances passed to the original respondents in this case.</p> <p>The complainants derive title to the land which they allege to be flowed by the respondent’s mill and dam, by deed from Edward Little to themselves dated May 4th, ¡837. Edward Little is the son of Josiah, and grandson of Moses — and derived his title to the land, by him conveyed to the complainants by his deed aforesaid, through the said Moses and Josiah. The complainants derive their title to the laud flowed, from the same source from which the respondents derived their title to the land and stream, whereon the dams and mills are situate, and at the time of the deeds from Moses and Josiah respectively to William Sprague as aforesaid — the said Moses and Josiah were respectively seized of the land which the complainants allege to be injured by the flowing of the original respondents’ darn and mill. The dam of the original respondents was erected prior to 1808. The dam is not now nor has it been at any time since 1808, higher than it was at that time. The land of the complainants has not at any time since July 11, 1818, been flowed higher, than was the custom of the owners of the mill and dam to flow the same from 1808 to 1818. The aforesaid dam flows the land of the complainants to their injury.</p> <p>If the Court should be of opinion from the facts above stated, and the construction of the several deeds therein referred to, exclusive of a memorandum on the deed of July 11, 1818, (for the terms and effect of which, see Rackley v. Sprague, 17 Maine R. 281,) that the complainants have no right to recover damages of the respondents for flowing, then said complaint is to be dismissed with costs; but otherwise, judgment is to be rendered against the respondents, and commissioners are to be appointed to estimate the damages, and the complainants are to have their costs. And the Court are also to determine whether Augustus Sprague can come in as administrator and take upon himself the defence of the complaint— and to make such decision thereon as may be deemed proper.</p>

Exceptions from the District Court. This is an action of assumpsit to recover of the defendant a sum of money, which had been paid to him by the plaintiff on account of personal property, attached by him on a writ, David Betts v. Jabez Leadbetter Sf al. The general issue was pleaded and joined.

This is an action of assumpsit upon a note of the following tenor:— “For value received, we, the trustees of the Wayne Scythe Company, promise to pay Asa Gile, or his order, one hundred and seventy-three dollars TV Comfort C. Smith, Ezra Fisk.” The defendants pleaded, jointly, that they never promised.

The parties in this action agree to submit it to the full Court for their decision, upon the following agreed statement of facts: — This was an action of assumpsit brought upon three notes of hand, each bearing date, Boston, May 23d, 1838, and payable to the firm of Perrin & Ellis, (plaintiffs) or order, and each signed “ Keene & Weston, by Win.

This was an action of assumpsit. The original count was against the defendant as guarantor. A second count against him as indorser was added, subject to all legal objections. The note in suit is as follows: “Fayette, March 27, 1834. For value received, I promise to pay Joseph Hutchinson, or order, seventy-five dollars in six months from date and interest.” This note was signed by one Zachariah Damon, Jr. and was sold by the defendant to one Samuel Thompson.

Exceptions from the District Court. This was an action of trespass for taking three cows. The general issue was pleaded, and a brief statement filed justifying the taking of the cows by William Wyman, a deputy sheriff, under the defendant, who was sheriff of the county, as the property of one James Kennedy, on a writ of attachment against him in favor of one Abraham Wing.

This was a writ of entry for a tract of land in Strong. The writ was dated August 13, 1838. The general issue was pleaded and joined.

Exceptions from the District Court. This is'an action of assumpsit for- money had and received, according to the account annexed.

Exceptions from the District Court. This was an action of trover, in which the plaintiff claimed to recover the value of four shoats. The plaintiff, to prove his title to the property, introduced a bill of sale, from David and Moses Morrison, dated March 16th, 1839, of two shoats.

Exceptions from the District Court. This was au action of debt. The general issue was pleaded and joined.

This was an action of assumpsit for supplies furnished the wife and daughter of one Isaiah Wood, who was alleged in the plaintiffs’ writ to have his legal settlement in the town of King-field. The general issue was pleaded and joined.

This was a writ of entry, for a small lot of land, and buildings thereon in Fairfield. Plea, the general issue. The tenant also filed a brief statement that lie was not a tenant of the freehold at the time of the commencement of this suit, nor at any time since. The writ was dated Oct. 21st, 1839.

<p>Assumpsit, for supplies furnished Oliver Stevens, and Timothy Staples and family, paupers, whose settlement was alleged to be in the defendant town.</p> <p>The parties agreed to submit the cause to the whole Court for their decision, upon the following statement of facts.</p> <p>Oliver Stevens, a non compos boy, had his legal settlement in that part of Dearborn now Smithfield. About six years ago his father died and the family was broken up. Since that time he has been a town pauper, but never resided in that part of Dearborn annexed to Belgrade, until May 1st, 1838, prior to said annexation, which took place by the act passed 22d March, 1839, when he was taken by Jacob Maine, a resident in that part of Dearborn annexed to Belgrade, on a contract for one year, and actually lived with said Maine until the first of May, following the annexation, when he went back to that part of Dearborn now Smithfield, and was there at the time of the incorporation which was on the 28th of Feb. 1840, being supported by said town as a pauper; of which Belgrade was notified by Dearborn,- but their liability was denied by said Belgrade.</p> <p>Timothy Staples and family had a legal settlement in that part of Dearborn annexed to Belgrade, but had left that part prior to said annexation. His family lived in that part of Dearborn that was incorporated into Smithfield at the time of said incorporation, but Staples himself went to Massachusetts in April, 1839, and returned to his family in 1840. Said family moved into that part of Dearborn now Smithfield, in Sept. 1839. Two months after this, they became chargeable, upon which Dearborn notified Belgrade, which town forthwith denied their liability.</p> <p>It was admitted, that the overseers of the poor of Smithfield gave legal notices of the situation of the paupers, and that they were chargeable, and requested that they should be removed, and did every thing necessary to charge the defendant town, if th'e paupers, or any of them, had their legal settlement therein ; and that the action was seasonably brought; and that the inhabitants of Belgrade returned in due season answers denying their liability to support said paupers, or either of them.</p> <p>The expenses incurred for the support of Oliver Stevens are forty-one dollars, and for the support of Timothy Staples and family are ten dollars.</p> <p>Judgment is to be rendered for the sum or sums aforesaid, according as the Court shall determine the liability of the town of Belgrade.</p> <p>The annexation of part of Dear-born to Belgrade, has the same effect as the incorporation of a new town. Uallpwell v. Beivdpinham, 1 Greenl. 129. But it transfers none except those who dwell and have their home on the part set off, at the time of the separation, and have their legal settlement tliore. Fitchburg v. Westminster, 1 Pick. 144; Sutton v. Dana, 4 Pick. J 1 7. Stevens being a non compos, did not prevent bis having a home where he dwelt. Lubec v. Easiporl, 3 Green!. 220. His being a pauper did not prevent his gaining a settlement in Belgrade. The law embraces all persons; making no distinction between those who are and are not paupers. Windham v. Portland, 4 Mass. R. 384; Groton v. Shirley, 7 Mass. 11. 156. Here, by the agreement, the pauper was settled in Dearborn, before the annexation, and dwelt and had his home on the annexed part. When Smithiield was incorporated, it took no part of Belgrade. Incorporating one town out of several others, did not relieve those towns from liability. The new town is liable only for those who dwell and have a legal settlement within their limits. But here the pauper had no legal settlement in any town. New Portland v. liuntford, 13 Maine 11. 299.</p> <p>The residence of Staples was in the part annexed to Belgrade. His family had removed to Smithiield in his absence. If his home was in Dearborn, the removal of his family will not affect his residence. Sidney v. Winlhrop, 5 Greenl. 123; Special Laws, c. 553.</p> <p>The language in the two acts of incorporation, is the same in each case, and does not vary from the 6th mode in c. 122, <§> 2. The non compos had no intention; he could have none; not having the intention, which is the essence of home, or domicil, he had no home; he had a settlement in Dearborn, but the statute requires a home in the part set off. JJpton v. Northbridge, 15 Mass R. 237. He was a mere boarder, residing with Maine for a temporary purpose. Si. George v. Deer Isle, 3 Greeul. 390; Knox v. Waldoborough, 3 Greenl. 455; Tlallowctt v. Gardiner, I Greenl. 93. A slave gains no home, and the condition of a non compos is no better. Two circumstances must concur— a settlement in the town, and a home on the part annexed, to bring a case within the sixth mode of gaining a settlement by virtue of Sí. c. i 22, <§> 2.</p> <p>Staples was absent, only for temporary purposes, and abandonment is not to be presumed. He returned to his family,, and his settlement is to be referred to that of his family. Richmond v. Vassalborough, 5 Greenl. 396.</p>

Exceptions to the rulings of Redington J. This was an action of trover for a number of sheep. Plea, the general issue. It was admitted that the sheep, sued for in this action, if taken by the defendant, were feloniously stolen by him, and that a criminal prosecution is now pending against him for said larceny. The presiding Judge thereupon ruled that the action could not be maintained, and directed a nonsuit, to which ruling and direction exceptions were filed.

This was an action of assumpsit for services performed and moneys expended in building a dam, one third part of which the plaintiffs claimed to recover ; also, for their services in exploring a township of land belonging to the defendant, at his request. It was agreed, that the plaintiffs could prove that they had performed the services and expended the moneys set forth in their exhibits; but the defendant contested their right to recover of him therefor.

Exceptions from the District Court. This was an indictment for feloniously stealing, taking and carrying away sixty-three sheep, the property of Baxter Crowell. The defendant pleaded that he was not guilty.

Assumpsit on a note for $26,98, payable to the plaintiff or order, dated Aug. 14, 1830, in one year from date with interest, and signed by said Baker and Eben Vose. To this note there was a subscribing witness. Plea, the general issue. By-leave of Court, the name of Vose was stricken out of the writ, there having been no service on him. The defendant introduced a receipt of the following tenor : “ Hallowell, 9 Sept. 1830.

This was an action of assumpsit. The declaration contained only a count for money had and received. The plaintiff claimed to recover the amount of a promissory note of hand, dated Nov. 1, 1838, for $14,15, payable to said Wilshire or order, the first day of June, 1839, and interest after, signed by the plaintiff and Isaac F. Ames, who was in fact surety on the note, though not so described therein.

This was an action opon a bond given by order of the magistrate before whom the defendant, 'Van Rensalacr Tuttle, was brought, upon the complaint of the plaintiff under the bastardy act, and was submitted to the Court upon the following agreed statement of facts: —■ The bond was dated Aug. G, 1839.

<p>A mistaken location of the line between the owners of contiguous lots, is not conclusive between the immediate parties to such location, but as between them the mistake may be corrected.</p> <p>If one making such erroneous location, secs a third person take a conveyance for a valuable consideration, according to the monuments by him located, he will be concluded thereby.</p> <p>Ignorance of the true state of his own title, will not excuse a party who by his own representations has misled, though innocently, a purchaser.</p>

<p>This was an action of assumpsit upon a receipt for property attached by the plaintiff, as a deputy sheriff, in a suit in favor of Samuel II. Blake v. Samuel McG-affy &f al. and dated July 8, 1836.</p> <p>The plaintiff introduced a receipt, in the usual form, signed by the defendants, for certain property attached in the suit, Blake v. M’Goffy al. which was returnable to the next October term of the S. J. Court, by which they promised safely to keep the property attached, and return the same to said Fowles, or his successor ; and further agreed that a demand on any one of them should be binding on the whole.</p> <p>On,the back of this was the following indorsement:</p> <p>“ Sept. 29, 1837. I hereby acknowledge a due and legal demand made by the within named Fowles, for the property mentioned in the within receipt; and also a demand made by A. H. Hitchcock, deputy sheriff, he having the execution present at the time. Samuel McGaffy.”</p> <p>Upon this evidence, Emery J. before whom the trial was had, instructed the jury that the admission of McGaffy on the back of said receipt, was sufficient proof of the defendants’ liability, and that the measure of damages was the value of such of the property attached, as was really the property of the debtor, and interest from the demand, and from the admission they were authorized to presume and infer that all necessary steps had been taken to charge the receiptors.</p> <p>The jury returned a verdict for the plaintiff and the defendants filed exceptions to the above ruling of the Court.</p> <p>There is no proof that there was a judgment; or if one, when it was obtained, or when execution issued thereon, if at all. It does not appear that the execution issued within thirty days from the rendition of judgment. The plaintiff here seeks to recover without showing any liability over. The language of the indorsement imports no more than that a demand has been made. It does not prove the existence of a judgment or the issuing of an execution. Those facts can only be proved by the records of the Court.</p> <p>A “ due and legal demand ” is admitted. Legal would have no meaning unless it were made within the thirty days from the rendition of judgment. Fowles had all the notice necessary to protect himself, and to fix the liability of the defendants. Carr v. Farley, 3 Fairf. 329; Jewett v. Torrey, 11 Mass. R. 219.</p>

This w'as an appeal from the judgment of the District Court, charging the trustee. No exceptions to the decision of the Court below were filed or allowed.

Exceptions from the District Court, Chandler J. presiding. This was an action of assumpsit on an account annexed. The writ was made returnable to the October Term of the Court of Common Pleas, 1837, and was, when sued out, in the name of James Sutherland, and purported to be indorsed by him. At the October Term of the Common Pleas, 1838, the plaintiff moved for leave to amend, which was entered on the docket.

Trover for a horse. The writ was dated Oct. 6, 1836. From the report of Shepley J. who tried the cause, it appeared that the plaintiff formerly owned the horse, and that in Jan. 1836, he let one Edmund Webber have the horse.

<p>Land conveyed to two in mortgage, as security for a debt due them, is held by the mortgagees before foreclosure as joint tenants.</p> <p>In case of the death of one of the mortgagees the survivor is entitled to possession of the mortgage and notes.</p> <p>When one of the co-mortgagees, having possession of the notes, had collected a portion of them, and retained the money collected, and then died insolvent — it was held, that the survivor had a right to the possession of the mortgage securities, and might, from the proceeds of the residue, retain sufficient to equalize the amounts collected by each.</p>

Exceptions from the Court of Common Pleas, Perham J. presiding. This was an action of the case against the defendant, late sheriff of the County of Penobscot, for the default of Abijah Jones, lately a deputy under the defendant, in neglecting to satisfy an execution upon goods attached by said Jones on a writ in favor of the plaintiff against Robert R. Haskins and Romulus Haskins.

This was an action on a promissory note, dated Feb. 25, 1837, and payable to the Penobscot Bank or order, in fifty-seven days-and grace. THe signatures of the signers were admitted, as was the signature of the cashier of the bank, purporting to indorse the note to the plaintiff.

Tilts action wns brought to recover for supplies furnished to Robert French, a minor son of Simon French, as a pauper. The writ was dated the 28th of February, 1838, and the supplies furnished between the 22d of May and the month of November, 1837. On the trial, before Shepley J. it was admitted that Simon French had a legal settlement in Dover on the first of January, 1830.

<p>Whore file pnrties to a negotiable note live in the same town, a demand on tlio maker cannot be made, and notice to tile indorser given, through the post office.</p> <p>Tlio holder of a note is not discharged from tlio duty imposed by law upon him of demanding payment of the maker at its maturity, and giving notice to the indorser of non-payment, by proof that, at the time of tlio negotiation of the note, the indorsor was informed that the holder relied on him for the payment of the note at maturity.</p> <p>It is not aufficieu! proof of a waiver of demand on (he maker, and notice to the indorser of a note, that ho was informed, at the time of the indorsement of the note, that the holder relied altogether upon him for the payment of the note at its maturity.</p>

This was an action of debt, on a bond given on an execution against the principal defendant, agreeably to the provisions of the 7th section of “ an act supplementary to an act, for the relief of poor debtors,” passed April 2d, 1836. The bond was dated Nov. 24th, 1836.

This was an action of debt on a poor debtor’s bond, in the usual form, given by the defendant, Watson. ' The parties agreed to submit the case, upon the following facts, to the Court for their decision. The defendant, Watson, in this case, applied to a magistrate Instead of the gaoler, who issued a citation to the creditor, which was duly served. At the return day of the execution, the debtor appeared and disclosed.

This was an acti'on of debt on a bond, dated May 18,1838, given by the defendant as principal, in conformity to an “ act supplementary to an act for the relief of poor debtors,” passed April 2,‘ 1836, and was submitted to the Court upon the following statement of facts:— The defendants introduced the certificate of two justices of the peace and quorum unus, in the usual form, and duly filed in the gaoler’s office, by which it appeared that due notice had been given the…

<p>Where the treasurer of a corporation was authorized by vote to hire money on such terms and conditions as he might think most conducive to the interests of the company to meet certain acceptances by the defendant of the drafts of the company on him — it was held, that by this vote authority to raise money was given, and to indorse drafts drawn by himself to accomplish that object 5 and that the acceptance of such draft by the defendant, one of the directors, who was present at the meeting when such vote was passed, and who was thereby to be benefitlod, precluded him from disputing the authority of the corporation to pass such vote.</p>

This was an award of referees which came before the Court for their acceptance. The defendants objected to the acceptance of the award, because certain claims which were laid before the referees by the defendants, on which the defendants had been summoned as trustees of the plaintiff, had been disallowed.

<p>Exceptions from the District Court, Allen J. presiding.</p> <p>This was an action of assumpsit on a promissory note dated April 6th, 1836, for the sum of one hundred and twenty dollars, payable to Gilbert Knowlton, or bearer, in one year from date, and signed by Ibrook E. Collins, James Austin, Daniel Collins and Hollis Bond. This note was signed by S. D. Collins as attesting witness. Bond and Austin pleaded the general issue. Daniel Collins was defaulted, and no service was made on Ibrook E. Collins.</p> <p>The defendants called Gilbert Knowlton, who testified, that in April, 1836, Ibrook E. Collins applied to him for the sum of $100, which he agreed to loan on good security for $120 in one year — that Austin brought the note in suit, which he declined taking till he might inquire of Austin and Bond — that they told him on inquiry, not to take the note unless the plaintiff’s name was to the note, and that it was agreed between the plaintiff and said Collins, that he was to secure the plaintiff by mortgage on real estate; that Collins called, and he informed him of the statemenls of Austin and Bond; to which said Collins replied that the note was good enough without — that at this time the note was written I promise to pay, &c., and there was no attesting witness to the signatures of the defendants; that witness asked Collins if it would not be necessary to sue him before he could call on the others, to which said Collins replied that it would; that thereupon the witness declined having any thing more to do with the note — that Collins then immediately erased the c I ’ in the said note, and inserted c We,’ saying that he had a right to do it — that Collins then agreed with witness to procure the name of the plaintiff upon the note, but not succeeding, the witness declined having any thing to do with the note.</p> <p>Willard Howard, who was called by the defendants, testified that the plaintiff told him that the note was written for Austin, Bond, D. Collins, I. E. Collins and himself to sign; that Daniel and I. E. Collins, brought it to him to sign, after it had been signed by the other parties to it; but that he preferred to take the note and let them have the money, to signing it — and that he did. He further testified that the attesting witness was dead.</p> <p>Upon this evidence, the defendants’ counsel requested the Court to instruct the jury that if the testimony was believed, the note was void; that being payable to Gilbert Knowlton or bearer, unless some consideration passed between the payee and the makers, it could not be put in circulation by any other person, and become binding on them; but the Court did not give such instruction, but instructed the jury that if they believed that the note was originally made for Bond, Austin, I. E. Collins, D. Collins, and the plaintiff to sign, that said note was not to be used unless the plaintiff did sign it; and that this agreement was known to the plaintiff when he advanced the money to said D. & I. E. Collins on the note, and there was no subsequent consent by said Austin and Bond that the note might be used without the signature of the plaintiff thereto, that they would find a verdict for the defendants.</p> <p>The counsel for the defendants requested the Court to instruct the jury that the alteration of the note from “ I promise to pay,” to “ we promise to pay,” was material, and avoided the note; but this the Court declined, and instructed them that the note was not, in that particular, altered materially.</p> <p>They further requested the Court to instruct the jury, that the addition of the name of the subscribing witness was also a material alteration; that as the note was proved not to have been witnessed at the time it was signed, that it was incumbent on the plaintiff to show that the attestation of the subscribing witness was duly made or placed there by the consent of the makers. The Court declined giving this instruction: but instructed the jury that the addition of the subscribing witness, without the knowledge or consent of the promissors, if done fraudulently, would render the note void; but that if the name of such witness was added before the note went into the plaintiff’s possession, that the law would presume that such attestation was made witii the knowledge and consent of the promissors ; and that the burthen of proof was on the defendants to show that such alteration was made without their knowledge and consent.</p> <p>The jury returned a verdict in favor of the plaintiff, and thereupon exceptions were filed by the counsel for the defendants, and allowed.</p> <p>1. This note could not legally be put in circulation by Collins. Wheeler v. Guild, *20 Pick. 545. The evidence shows that the plaintiff took the note with the knowledge of all the fonts which impaired its validity ; and having such notice, he cannot recover.</p> <p>2. The alteration from “ 1 promise,” to “ we promise,” avoided the note. It changed it from a several to a joint note. The alteration is material, when the remedy to be pursued is changed by such alteration. Whether the liability of the party be enlarged or diminished by the alteration is immaterial. Chitty on Bills, 130 ; Bailey on Bills, 58; IJenfere v. Bromley, 6 East, 312; Stephens v. Graham, 7 S. & 31. 508.</p> <p>Were the alteration made to conform to the contract of the parties, it might be supported, but such is not the case here. Hervey v. Harvey, 15 Maine R,. 357 ; Farmer v. Rand, 16 Maine R. 453.</p> <p>3. The addition of the signature of a subscribing witness is a material alteration. Smith v. Dunham, 8 Pick. 249.</p> <p>4. The instruction that the burthen of proof was on the defendants, to show the alteration made without their knowledge and consent, was erroneous. Jackson v. Osborn, 2 Wend. 555; Prevost v. Gratz, 1 Pet. C. C. R. 369 ; Jackson v. Jacobs, 9 Cow. 125; Chesley v. Frost, 1 N. H. R. 145; Knight v. Clemens, 35 Eng. Com. Law R. 377.</p> <p>It has been settled by the jury that the plaintiff is an innocent indorsee, taking the note before it was due, for a valuable consideration. If any fraud has been committed, it is that of one defendant on his co-defendants, to which the plaintiff was not a party and of which he was not conusant.</p> <p>Even if the signature of the attesting witness was affixed by the request of the holder, if done in good faith, it does not avoid the note. Smith v. Dunham, 8 Pick. 246. The jury have here negatived all fraud. The presumption of law is, that it was done with the consent of all the defendants. 3 Stark. Ev. 1249 ; Hunt v. Adams, 6 Mass. R. 519. The alteration from I to we, was immaterial. Bailey on Bills, 44 ; Hemenway v. Stowe, 7 Mass. 11. 58; Nichols v. Johnson, 10 Conn. R. 192.</p>

Tins was an action of assumpsit against the defendant as the indorser of a note of band, dated Whitefield, Feb. 27, 1839, signed by Osgood Jolmson, payable to the defendant, or order, on demand and interest, and given for the sum of two hundred and three dollars, thirty-four cents.