Volume 2 — Maine Reports

ASSUMPSIT to recover the expenses incurred by the plaintiffs in the support of Betsey Thomas, and her two children. It appeared that the overseers of the poor of York addressed a letter June 24, 1816, signed by Edward Simpson as one of the overseers and by order of the board, to the defendants, in which they stated that Betsey Thomas, an inhabitant of Penobscot, was supported as a pauper in York, and requested the defendants to pay her past expenses and remove her.

This was an action of debt, brought to recover the penalty given by Slat. 1793, ch. 59, for bringing and leaving a pauper in the town of Sanford, in which she had not a legal settlement, the defendant well knowing her to be poor and indigent.

This was an action of trespass on the case, in which the plaintiff declared that on the 30th day of June 1818, one Humphrey Scammon was indebted to him for goods sold; — that the debt being unpaid, he sued out a writ of attachment October 26, 1818, and caused sufficient personal estate to be attached to satisfy his demand ; — that at April term 1819, the cause came on to be tried in the Circuit Court of Common Pleas, and the plaintiff proved the sale and delivery of the…

<p>Practice. — In a hearing in chancery upon a penal bond, it is th e plaintiff's duty to shew how much is due in equity and good conscience.</p>

THIS was a writ of entry upon the demandants’ own seisin, and a disseisin by the tenant, and came before the Court upon a case stated by the parties as follows.

This was an action of assumpsit for the non-performance of an agreement to purchase a farm of the plaintiff, lying in Box-ford in the Commonwealth of Massachusetts.

Assumpsit to recover monies expended by the plaintiffs for the relief and support of Mehitabel Potter and her children* whose lawful settlement was alleged to be in. Litchfield. In a case stated by the parties, it was admitted that the paupers had no other settlement in Litchfield than was derived from Robert Potter, the supposed husband of said Mehitabel and father of her children, who, it was conceded by the defendants, was settled in Litchfield.

And there is no distinction between civil and criminal cases, in the application of this rule. The prisoner was indicted for the forgery of a check on the bank of Portland; in the name of Allivood (fr Quincy.

This was a writ of entry in which the demandant counted upon his own seisin within thirty years and a disseisin by the tenant. At the. trial, which was upon the issue of nul disseisin, the finding of the jury .was, that the tenant did disseise the demandant in manner and form^as ■ alleged in the declaration; which verdict was received and recorded by the Court, and the jurors separated.

Hebt- for two years’’ rent' of a bouse in Wiscassef. In a case stated by the parties it appeared that the evidence of the contract was a paper not under seal, by which the plaintiffs by their agent bad let the house to' the defendants for three months: — and it was agreed that the defendant, Chase,could' prove by parol testimony, if it was competent for him so to do, that he dwelt in Newcastle, — that he never actually occupied the premises, though he appeared in the written…

This was'an action of the case against the defendant, who was a deputy sheriff of this county, for making a false return upon a writ; and it came before the Court upon a case stated by the parties.

ASSUMPSIT for services performed by the plaintiff, as one of a Committee appointed by the Court of Sessions of this county, to lay out a certain highway,- upon the petition of the defendants.

This was an action on the statute, [Slat. 1821, ch. 118. sec. 17.] for an injury to the plaintiff’s horse, occasioned by a defect in a causeway on a supposed town road in Rome; and came before the Court upon a motion to set aside a nonsuit.

©cire facias upon a recognizance entered into before a Justice of the peace.

IKntry sur disseisin.’ í’he demandant proved that as early as the year 1770, his son David Winslow entered into the demanded premises claiming them as his own ; but that at the commencement of the war of the Revolution he left this part of the country, and was supposed soon after to have died, unmarried, never having been heard from.

<p>By tlie law as it stood prior to Slat. 1821, ch. 135, every person resident withia the limits of a territorial parish, if otherwise qualified, was ipso facto a member of the same, unless he was regularly united as a member to some poll-parish. And on ceasing to he a member of such poll-parish, he became forthwith a member of the territorial parish within which he resided, unless such secession was .colorable and fraudulent.</p> <p>But by Slat. 1821, ch. 135, it seems that no person can become a member of any religious society without first obtaining its consent.</p>

This w'as an action of trespass for talcing and carrying away the plaintiff’s sheep, and came before this Court at the last April term upon a summary bill of exceptions to the opinion of the late Circuit Court of Common Pleas, pursuant to the statute.

James Nowell, the husband of the appellant, was administrator 'on the estate of his father, and died without having settled his account at the Probate office. The .appellant then took administration of the estate of her husband, and the respondent took administration de bonis non of the estate of the father. The appellant having presented to the.

This was assumpsit upon a note of hand made by the defendants to the plaintiff’s intestate, and came before the Court upon a case stated, containing the following, facts.

<p>The liability of the vendee to damage as the surety of the vendor, is not of itself a sufficient consideration to support a'n absolute conveyance of property, against creditors.</p> <p>And -where the vendee, at the time of such absolute conveyance, executed a bond of defeasance to the vendor, it was holden to be incumbent on the vendee, in an action brought by him against an officer attaching the goods so conveyed, at the.suit of a creditor of the vendor, to produce such bond, or to shew that upon due diligence its production was out of his power.</p>

This was an action of the case against the defendant for neglect of his office of deputy sheriff in not serving and returning an alias writ of execution in favour of the plaintiff .against one James Coffin.

<p>Apetition to the Court to enable an administrator to execute a deed, is not an adversary proceeding, nor is the power, thus obtained, imperative on the administrator.</p>

This was a writ of entry on the seisin of the demandants within thirty years, to which the general issue was pleaded. The demanded premises are situated on the east side oí Androscoggin river, above the great falls at Lewiston.

<p>Assumpsit for the support of a pauper named Mary Brazier, the supplies furnished commencing March 28, 1821..</p> <p>In a case stated to the Court, it was agreed that her settlement was in Buxton, unless she had gained another by her supposed marriage with one Joseph Brazier in the year 1814, the validity of which was the only question in the case. At the time of this supposed marriage he resided in Palermo and she in Montville, in the county of Lincoln ; and the marriage was solemnized by Isaac Iiall, an elder of the Baptist church, at his dwelling house in the plantation of Knox in the county of Hancock, adjoining Montville, there being then no settled ordained minister resident either in Knox or Montville. Mr. Hall was ordained in 1806, after the usages of the sect to which he belonged, over an unincorporated religious society composed of individuals resident in the towns of Unity, Montville, and the plantation of Knox, in the respective counties of Kennebec, Lincoln, and Hancock. Brazier left his wife in 1820, and had not cohabited with her since.</p> <p>The objections to the validity of the marriage are twofold viz.—</p> <p>That the person by whom the marriage ceremony was performed was not authorized to solemnize marriages in any case;—</p> <p>And that if he was generally authorized, yet he was not so as it respected these parties.</p> <p>Neither is the marriage rendered valid by the resolve of .March 19, 1821, legalizing certain marriages*</p> <p>1. The statute respecting marriages, 1786, cli. 3, provides that every stated and ordained minister in the town, district, parish or plantation where he may reside, shall be authorised to solemnize marriages, when one or both of the parties to be joined in marriage are inhabitants of, or resident in, the town, district, &c. where such minister shall reside. But the nature of Mr. HalVs ordination, and of his various duties and obligations, preclude all supposition of his being a stated minister within the meaning of the statute. The church over which he was ordained extended into three distinct towns or plantations, and as many counties. In what place, then, could he be said to be a stated minister ? His case is very similar to that of Comfort Smith, who was convicted in this county at the S. J. Court October term, 1818, for pretending to join persons in marriage, he not having the requisite qualifications, but was after-wards pardoned by the executive. A minister thus ordained could not recover taxes paid by his parishioners into the treas- . ury of the town, for the support of public worship. Kendall v. Kingston, 3 Mass. 524.</p> <p>2. Mr. Hall, if generally qualified, had no authority to join these persons in marriage. On this point the statute is explicit. Where there is no minister in the town w'here either of the parties reside, the minister of the next town may perform the ceremony, “provided it be done in the town where one of the parties reside.” But this marriage, having been solemnized in Knox where neither of them resided, is clearly out of the protection of the law.</p> <p>3. The resolve of March 19, 1821, for making valid marriages, and for other purposes, is, to say the least of it, an extraordinary act of legislation; How far it might be effectual as between parties themselves applying for its passage, is not now the question; for the case finds that Brazier had ceased to cohabit with the pauper ldng before the date of the resolve. Between these persons it has no operation, because they never applied to the legislature for this provision, — Ellis v. Marshall, 2 Mass. 269 — and their dissent is clearly implied from their living apart.</p> <p>But whatever may be its effect upon these persons,- it cannot be construed to affect the rights of other persons or corporations. If the settlement of the pauper was in Buxton before the passage of the resolve, by what rule can it, without any act of her own, or of the plaintiffs, and without her knowledge or consent, be. transferred to Ligónia ? To give it this effect would present the singular case of a marriage made between parties actually resident at the time in different towns, and without any assent of either, or any knowledge or suspicion that they were thus to be united: — a construction as little in advancement of public policy, as of domestic happiness. The resolve is void as interfering with vested rights. Before its passage the pauper had her settlement in Buxton, on which town the plaintiffs had a right to call for the reimbursement of any sums they might be obliged to advance for her relief. This right the resolve takes away. Wales v. Stetson, 2 Mass. 143. It impairs the obligation of contracts! Sturgis v. Crowninshield, 4 Wheat. 208. Dartmouth College v. Woodward, ib. 518. Nor can it have the effect of rendering the marriage valid from the time the ceremony was performed; for this operation is retrospective, and therefore void. Dashv. Van Kleick, 7 Johns. 477. Society v. Wheeler, 2 Gall. 134.</p> <p>1. Mr. Hall was ordained, after the usages of his own sect3 dver a church and society not incorporated by law, but voluntarily associated and gathered out of the town of Unity, and the adjoining plantations oí Monlville and Knox.</p> <p>By Stat. 1811, ch. 6, unincorporated religious societies are expressly recognized, and thenceforth must be known in law: and they thus give a character to a minister set over them. And hence, since the passage of that statute, a minister regularly ordained over a church and society not incorporated, must b.e taken to be a “ stated and ordained minister of the gospel.” It is not such ministers that the resolve of 1821 considers as not stated and ordained; — but the ministers of the methodist and other communions, who are ordained as travelling evangelists, without any local charge. The term parish, occurring in our statutes since the year 1811, can hardly be considered as any longer limited to territorial bounds, but is become, in one sense, synonymous with society. These principles are supposed to be supported by Baldwin v. McClinch, 1- Greenl. 102.</p> <p>The word parish in Slat, 1817, ch. 141, is believed to have the force abovementioned, and to mean “ the limits of the minister’s parochial or spiritual charge — and this whether lying in one town or in several. The marriage therefore, being within the “ parish” where one of the parties, viz. the woman, resided, and solemnized by a stated and ordained minister of the gospel, was valid.</p> <p>2. If not, it was made valid by the resolve of March 19, 1821. Marriages are to be supported and encouraged by the civil magistrate, on the ground of public policy, to prevent wanton and lewd cohabitation, and the consequent dissoluteness of public morals. Milford v. Worcester, 7 Mass. 52. Medway v. Need-ham, 16 Mass. 160. On these principles the resolve was passed. A large number of marriages were supposed to be illegal, and parties were tempted to avail themselves of the legal advantages thus presented, to forsake each other and bastardise their issue. It was accordingly resolved, by way of public remedy, that “ all marriages between parties' competent by law to contract “ marriage, and whose intentions of marriage were legally pub- “ lished, shall be deemed and taken to be good and valid in “ law, to all intents and purposes.” Now this being such a marriage, it is legalized by the express language of the resolve.</p> <p>To th eXobjection that these persons did not assent to tile resolve, they continuing to live apart, — it is answered — 1. They assented to a legal marriage, doing all in their power to contract and consummate it; and the resolve does no more than confirm what the parties supposed valid, and probably still deem so.— 2. The resolve, as it specially excepts the case of all who, having been thus married, “ have since separated, and one of the “ parties has been legally joined in marriage with another “ person,” does, by necessary implication, include all who live apart, not having contracted a second marriage. — 3. If the want of express assent is a valid objection, yet third persons have no right to make it. It lies in the mouth of none but thé parties to the marriage or their heirs at law. And so is the doctrine of Ellis v. Marshall, 2 Mass. 269. — 4. All persons are to be presumed to assent,who had not subsequently contracted another marriage. The resolve was dictated by high considerations of public policy, and for the conservation of public and domestic peace. And the legislature had a right to declare that contracts thus solemnly made should be binding. They were valid in foro consciente.' So are verbal contracts for the sale of real estate. Yet even these contracts are held binding when part executed. And ought not a marriage to be held valid, when consummated by cohabitation ? Who is wronged by giving the resolve the effect originally intended by the parties ?</p> <p>To say that-the resolve operates only to render a marriage legal from the time of its passage, and not from the time of the marriage, is in effect to make a new marriage, commencing on that day. This construction at once excludes from the benefit of the resolve all those marriages where one of the parties was then dead, or non compos — together with the children, in both cases, as well as all children then born, whose parents were still living. And these classes of persons probably compose more than half the number of cases on which the resolve wms intended to operate. What then becomes of the claim of dower, — or of estates already descended to children, and perhaps to grandchildren, — or hereafter to be claimed by those born before the passage of the resolve ? Such a construction, inviting endless litigation among lineals, and collaterals, and working so much injustice to those whose rights it was doubtless the great object of the legislature to secure, it is believed the Court will not willingly adopt.</p> <p>The resolve affects no vested rights, and impairs no contracts, for none existed in this case till the supplies were furnished, which was not till after the date of the resolve. And as to the objection that legal settlements are thus arbitrarily changed, it lies equally against many other general laws, of long standing, whose binding force was never questioned, because of their general application.</p> <p>The preamble to Slat. 1811, ch. 6, together with its enactments, sufficiently explain the objects of the legislature, and the objects apparent on the face of it are of sufficient importance to account for its passage and extend its operations, without enlarging its provisions by construction. There is nothing in it which dispenses with the qualifications required in a minister •who is authorized to solemnize marriages by Slat. 1786, ch. 3. Its object is rather to enlarge the privileges of members, than to extend the authority of the teachers, of unincorporated societies. But such rights as are conferred by the statute of 1811, •are so particularly defined as to preclude any implication. It was principally designed to enable such teachers to recover the money paid by their hearers into the treasury of the town, and to exempt them from taxation. It enacts that “ all (such) minis-t! ters shall have the same exemptions from taxation as are “given to stated and ordained ministers of the gospel;”— clearly recognizing a distinction between such ministers, and those who are stated and ordained, — investing them, thus far, with the same privileges, and limiting it to the same extent. The term stated has obviously a reference to place, and cannot properly be applied to one who is ambulatory, whether in a smaller or larger circle.</p> <p>The operation of the resolve of 1821 to render any marriage ■ legal, which was not originally so, may well be questioned. But the difficulties in giving it a construction to legalize the marriage in question are insuperable. If it was not legal when the ceremony was performed, it must be regarded as void;— there is no medium; — it was nothing more than an agreement to marry, between persons who afterwards changed their minds. Their cohabitation, if evidence of their sense of the contract as a legal marriage, is more than counterbalanced by their subsequent separation. The exception in the resolve of those who have separated, and one of the parties “ has been joined in legal marriage,” though unmeaning, as such persons must have remained unaffected, jet is a strong expression of tbe opinion of the legislature that the second marriage in such cases is legal, and consequently that the first was void. That being the case, it would be a singular exercise of legislative authority to declare that certain individuals might lawfully contract matrimony, but that when they had not availed themselves of this privilege they should be considered as already married to other persons.</p> <p>The evils anticipated as resulting from the construction now contended for, are not chargeable upon the law, but grow out of the illicit connection of the parties, and are concomitants of a state of society where the laws regulating the marriage contract, which are plain and simple, are disregarded. Where this has been done inadvertently, it is just that punishment should be remitted, but the parties cannot reasonably claim of the Court all the privileges of those who have been joined in lawful wedlock.</p> <p>The arguments, of which the foregoing is a summary, having be'en submitted in writing during the vacation, the opinion of the Court was now delivered as follows, by</p>

This was a writ of scire facias, in which the plaintiff set forth a judgment recovered by him against the estate of the intestate, in the hands and under the administration of the defendant, at the Circuit Court of Common Pleas, December term, 1820, and execution duly issued and returned nulla bona, and thereupon suggested waste by the defendant, and prayed judgment and execution de bonis propriis.

<p>The three years limited for the prosecution of a petition for review, are to he computed from the term of which the judgment was entitled.</p>

This was a writ of scire facias, in which it was set forth that a complaint was duly made to a magistrate against the defendant for an assault and battery, and a warrant issued thereon, by virtue of which the defendant was arrested, tried before a justice of the peace on the plea of not guilty, convicted, and sentenced ; — that he appealed from the sentence to the next Circuit Court of Common Pleas, to be holden in December then next, and entered into a recognizance…

This was an action for money had and received. It appeared at the trial that the plaintiff TJlmer was late Sheriff of this county, and the other plaintiffs his bondsmen, against all of whom, jointly, the defendant, being a deputy sheriff, in the year 1813, had eighteen several writs of execution in favour of John T. Jlpthorp late treasurer of the Commonwealth of Massachusetts, issued for the benefit of divers creditors of said Ulmer, upon a judgment rendered upon hiá bond of…

<p>In a writ of entry the Court refused leave to amend by striking out the name of one of the demandants which had been improvidently inserted.</p>

AssumpsiU The declaration contained two counts — one on ah insimul computassent — and the other being a general indebita* tus assumpsit — to which the general issue was pleaded. To support the action, the plaintiff read to the jury an order drawn by the selectmen of Nobleborough on David Dennis, their treasurer, requesting him to pay the plaintiff a Certain sum, being the amount due him for building a bridge for said town.

<p>The remedy against the indorser of a -writ in case of the avoidance of the principal, under Stat. 1784; ch. 28. [Slat. 1821, ch. 59, sec. 8.] is by scire facias, and not by action of debt.</p> <p>Debt does not lie upon a conditional or collateral undertaking.</p>

Debt on Stat. 1821, ch. 168, for taking the plaintiffs’ logs.

Trespass quart clausum fregxt. The defendant pleaded soil and freehold in himself, which was traversed, and issue taken thereon.

This was an action of assumpsit. The declaration contained .a general count of indebitatus assumpsit, — one for money had .and received, — and one for money laid out and expended5 — • and it was tried upon the general issue.

<p>Assumpsit, upon three notes of hand. Plea, non assumpsit. " At the trial the defendant read to the jury a receipt describing the notes declared on, of the following tenor ; — 15 Orono, May “ 18, 1822. Received of James Rogers full pay for three notes ‘‘ of hand by him to me or order, which notes were lodged in u the hands of Reuben Haines of Topshdm, the date and amount “ of said notes are as follows,” [describing them] “ received pay “ for the same by indorsements on note, and notes' given up to ■ “ me .which the said Rogers held against me. Thomas G. Clark/ —At the bottom was this memorandum signed by the plaintiff.— w Mr. James Rogers,! have received my notes, and if it is not “' settled to your satisfaction I will settle with you, in August I shall be at Topsham.” ■</p> <p>The plaintiff then read in evidence a paper signed by said Rogers and others, of the following tenor; — “ Topsham> Novem- “ her 11,1817. Then Thomas Gl Clark lodgéd in my hands the “ following notes of ha'nd signed by James Rogers and Charles “ Eaton, according to the request oí the said Clark, Rogers, and “ Eaton, there they are to remain until they become due, after “ that the proceeds of them are to be paid over to Plumphrey Purintori on the notes given him for the payment of a mortgage “ deed of the land and privileges bought by the said Clark and M Reuben Haines in May, 1817. Reuben Haines.” Then followed a list of the notes referred to, among which were the notes' declared on, at the bottom of which were the signatures of Clark, Rogers and Eaton.</p> <p>The admission of this paper was objected to by the defendant’s counsel on the'ground that it had been altered in a material part' by the addition of the name of Haines long after it was executed by the others, and that this alteration was made by Haines, which they offered to prove. But the Judge over- , ruled the objection, and gave the plaintiff leave to become non-suit, subject to the opinion of the whole Court' whether the ac-" t'ion' could'be sustained."</p> <p>The action, though brought in the name of Clark, is for the benefit of Plaines, who is the plaintiff-in interest, claiming the notes by virtue of the instrument of November 11, 1817. Plaines and Clark had bought a parcel of land of Purinion, which they had mortgaged for the purchase money; and to secure the payment of Clark’s móiety and protect Haines, the notes in question were deposited with the latter for the purpose mentioned in the paper. And the question is, whether this is such an equitable assignment as the Court will protect against any attempt by Clark to control it? It was an assignment upon good and sufficient consideration; — for Haines had an interest in the subject-matter, being bound as mortgagor to pay thera/toie debt. The, Redemption of the land by him would enure for the benefit of Clark, against whom he would have none but a personal remedy. II was also entered into with good faith. Haines had a trust; Coupled with an interest. He was by common consent made trustee for the benefit of the concern. The funds wfere- set apart at the request of Rogers, to perforin Clark's own bbligation. The contract could not be rescinded but by' the sainé parties who entered into it; and one of these was Haines. • Dunning v. Sayward, 1 Greenl. 366. Dunn vi.Snell, 15 Mass¿ 481. ' Jones v* Witter, 13 Mass. 304. It wras not material when he signed it, non that all should sign it at the samé time. It ivaS 'probably executed by the other parties, and then carried by them to Haines, in whose possession it remained till the trial. Nor was it necessary that Haines should extinguish the liability of Clark to Purinton. This was not in his power, except by payment of the money, to obtain which the notes in suit were deposited in his hands- It w7as only necessary that the funds should be appro-» printed in good faith by dark, and accepted by Haines ¡ and this was done;,</p> <p>The receipt offered in evidence is a complete answer to the action, unless Haines is beneficially interested as assignee of the notes. The only evidence of this interest is the paper of November 11, 1817; but this is void, having been altered in a material part, by adding the name of Haines. It was material, as making him a party to the contract, who was not so before. He was a mere depositary of the notes, without interest, and might be discharged at the pleasure of the parties. Had the money been paid to Haines, and not paid bver by him to Purinton, the paper Us altered would be evidence of itself to support an action against Haines. But without the alteration it would not.-' It was there-, fore a material alteration. Homer v. Wallis, 11 Mass. 312. Hunt b. Adams, 6 Mass. 5Í9. -</p> <p>- But if it be an immaterial alteration, and Haines really a party to the contract, yet being made by him, and after delivery, bf the instrument, it is void. Hatch v. Hatch, 9 Mass. 311. Masters v. Miller, 4 D. E. -322.</p> <p>And if it be immaterial, and rightfully made, yet Clark..had á right to release the notes, unless he had parted with his zohols interest in them. Now the instrument itself contains no language of assignment, — and of course Haines’ interest in the notes in his hands must depend on the other facts and circumstances of the case. But he had paid nothing for them;- Nor had he discharged Clark from any liability in consideration of their being in his hands. The land was still under the mortgage. Clark was still liable on his notes given for the purchase money, and the land still liable to an entry for condition broken. And if Haines had chosen to pay the debt out of his own money, he might still claim of Clark a'moiety of the money thus paid. As therefore he had no legal interest, because the notes were not regularly transferred to him, — and no equitable interest, because he had’ neither paid money nor assumed any liability in consequence of their being placed in his hands, he is not entitled to the protection of the law, against the rightful owner of the notes.</p> <p>The cause being continued nisi for advisement, the opinion of" the Court was delivered at the succeeding term in Cumberland„■ as follows.</p>

This was a writ of entry, in which the demandants counted on their own seisin and a disseisin hy the tenant, of “'a certain “ lot of land in Palermo in said county, being lot numbered 124 “ according to a plan made by Broadstre&t Wiggin surveyor^ “ containing one hundred and seven acres, more or less,”— without any other description of the premises demanded. ■ At the trial, wliich was upon the general issue, the demand-ants proved á certain lot, called the tenants’, to be in…

This was an action of assumpsit, brought by the plaintiff who was the widow of Moses Haskell, under whose will she claimed an accruing legacy, against the defendants, who were minors and heirs at law of Ebenezer Haskell, son of said Moses.

<p>Where one conveyed lands by deed, reserving to himself the use of part of th® premises, and half the profits of the residue for life, and the grantee entered, and fulfilled the terms of the reservation, and then died insolvent, leaving children who were minors, and whose gyai’dian entered into the land ; — but neglected to perform the terms of the reservation ; — it was held that assumpsit does not lie against them for the particular reservations in the deed, nop for the use and occupation of the land.</p>

This was a certiorari, brought to quash the record of the Common Pleas, in a prosecution upon the bastai'dy act in which the present plaintiff was accused by Almira Dyer of being the father of her Illegitimate child.

In an action of trespass quare clausum fregit the cause was thus: In the year 1811, Philip Mills purchased the locus in quo oí one Wheelwright, to whom he at the same time mortgaged it, as security for the purchase-money, of which no part appeared ever to have been paid.

<p>An entry on land under a deed recorded, and payment of taxes, is no evidence of a disseisin of the true owner, unless the person who entered has continued openly to occupy and improve it.</p> <p>In such a case, though the deed may not convey the legal estate, yet the possession of apart of the land described in it, under a claim of the whole, by the bounds therein expressed, may be considered as possession of the whole, and as a disseisin of the true owner; and equivalent to an actual and exclusive possession of the whole tract, unless controled by other possessions.</p>

<p>If a county road bo laid out and accepted over land of a private citizen, to whom damages are awarded for the easement, which are paid by the town, and the road is afterwards discontinued without having been opened, the town cannot recover hack the money thus paid.</p> <p>The discontinuance of a road by the Court of Sessions is no reversal of the pro» ceedings respecting its location.</p>

'Error, to reverse the judgment of a justice of the peace, rendered in favour of'the defendant in an action of debt for a penalty for neglect of military duty.

This was an action of assumpsit against Benjamin IAnscott, and came before the Court upon a motion to set aside a non-suit. At the trial of the issue, which was non assumpsit, the plaintiff read the note declared on,' of the following tenor: — “ York “ Jan. 2, 1818. We the subscribers jointly and severally, for value received promise to pay Joseph Thompson, Esq. or or- “ der three hundred and forty-two dollars on demand, interest “ till paid. Jeremy Linscott.

Assumpsit on a joint promissorjr note, made by the defendants to the plaintiffs’ testatrix. The defendant Ham not being to be found in this State, and having no domicil here, no service was made on him.

<p>This was an action of assumpsit for the support of Joseph Temple and his family as paupers, and came before the Court upon a case stated by the parties.</p> <p>Temple was an alien born, having no legal settlement in Massachuselts. His wife, at the time of the marriage, had her settlement in Hollis; but at the time of passing the act of March 21, 1821 respecting the settlement and support of the poor, and for several years previous, they resided as housekeepers, with their family, in Sanford.</p> <p>From May 1818 to April 13, 1819 they were supported by Sanford, for which support an action was brought against Hollis, which the latter town adjusted by payment of the debt and costs ; and at the same time entered into contract with an individual in Sanford, to supply them with necessaries at the expense of the town of Hollis, which he continued to do from that time till September 22, 1821, and was paid accordingly; the paupers residing in Sanford during all this period, with the consent of the inhabitants of Hollis. Temple was put on the list of State-paupers, soon after he first became chargeable in Sanford, at the request of the inhabitants of Hollis, who received of the State the expenses of his support, till March 21, 1821.</p> <p>On the 21st of September 1821 Hollis rescinded the contract made for the support of the paupers, for whose subsequent expenses this action was brought. The legal notice and reply were admitted.</p> <p>Temple, being a foreigner, must be supported in the town where his wife has her settlement; and the fact of their being at board in Sa,nford, at the expense of Hollis, does not vary the case, for that very reason. Upon any other construction of the statute, the husband and wife will be separated, which is not to be permitted.</p> <p>The Stat. 1821, ch. 122. sec. 18. requires overseers of the poor to relieve and support “ all poor persons residing or found “ in their towns, having no lawful settlements within this State.” Temple was “ residing and found” within Sanford; — and the words of the Statute being thus satisfied, Sanford is bound to support him. The provisions respecting the settlement and support of the poor are arbitrarily assumed, and therefore always receive a literal construction. There is no moral obligation, no right or wrong, in the case. The only subject of inquiry is the literal meaning of the law. Townsend ¶. Billerica, 10 Mass. 414. Billerica v. Chelmsford, 10 Mass. 397.</p> <p>The wife’s settlement in Hollis makes no difference, That town had paid something for their support, tis true; but it was under a mistake as to their legal rights. They were not bound to support the paupers till they were removed to Hollis. 13 Mass. 504.</p> <p>The adjudged cases are, that the husband and wife shall nov be separated. The statute says that a poor foreigner shall be supported by the town where he is “ residing or found —and if so, then his family also, for they cannot be taken from him. Thus the law is consistent. It is the temporary settlement of the foreigner, — determined, like all cases pf permanent settlement, by the mere arbitrary and positive enactments of the statute; and carrying with it, as in all other cases, the settlements of his family.</p> <p>A foreigner gains no settlement. The words of the statute,' sec. 18. are, “, having no settlement.” And if he has none, he can give none to the wife; and therefore she does not lose the settlement which she had at the time of the marriage, which was in Hollis. Shirley v. Watertown, 3 Mass. 323. Hallowelf V. Gardiner, 1 Greenl. 93.</p>

<p>The Stat. 1822, ch. 193. authorizing- the filing of exceptions in a summary-manner to any decision of the Court of Common Pleas, does not apply to. causes brought there by appeal from the judgment of justices of the peace.</p>

Assumpsit, by the indorsee against the defendants as acceptors of a bill of exchange, drawn on them by one Bradshaw. At the trial, which was upon the generahissue, the plaintiff, to prove the authority given by the defendants to draw the bill in question, offered the deposition of Bradshaw himself, who was appointed by the defendants supercargo of the ship Romeo for a voyage on their account, and drew the bill for payment of part of her return cargo of salt.

Assumpsit on a promissory note made by Jacob Allen, payable to the defendant, and by him indorsed in blank. It came before this Court upon exceptions filed to the opinion of the Court of Common Pleas, Where, upon the evidence adduced, the plaintiff' was nonsuited.

<p>This was an action of trespass quare clausum fregit, for cutting doAvn trees on the plaintiff’s lot numbered eleven, in range jive east, in the town of Baldwin.</p> <p>At the trial, which was upon- the general issue, the defend.ant admitted the plaintiff’s title to lot numbered eleven, it having-been drawn January 5, 1786, to the priginaj right of Charles Kilham; — but he insisted that the land on Avhich he entered • was without the bounds of that lot, Avhich, he contended, consisted of only one hundred acres.</p> <p>The defendant exhibited, as chálfe, an unauthenticated plan, purporting to be a plan of Baldwin, on which it appeared that in the jifth, and several other ranges of lots, the numbers began with one, and continued in regular series as far as eleven, and then folIoAved number twelve and onward. The plaintiff contended that number deven extended from ten to twelve, in which case'it would be twice as large as the other lots — viz. 200 acres. The defendant contended that it extended only half the distance from ten to twelve, which, would give it the size of the other lots, being 100 acres ; — the intermediate space being, as he said, an undrawn lot.</p> <p>To shew that the piece of land in question was not an undrawn or proprietors’ lot, the plaintiff read from the records of the proprietors of Baldwin the transactions of a committee of the proprietors January 31, 1797, appointed to ascertain what lots were yet unappropriated, and the doings of the proprietors upon the report of said committee, in which report no mention was made of lot numbered eleven, nor of any land adjoining it.</p> <p>The plaintiff also read from the records the appointment and report of another committee to ascertain all the undivided lands, lotted or not lotted ; which report, accepted at a meeting September 11, 1805, specified several lots and parcels of land, but not the land in question.</p> <p>The defendant then offered to read from the same records the transactions of the proprietors and their committee at an adjournment of the same last mentioned meeting, held September 14, 1808 after several intermediate adjournments; to shew that they had discovered and reported the land in question as undivided land, and to satisfy the jury that the proprietors never designed that the lot numbered eleven should include the whole intermediate tract between ten and twelve, and that in fact it was not so included. To this evidence the plaintiff objected, and the Judge who presided at the trial refused to admit it.</p> <p>There was other testimony introduced to satisfy the jury as to the original location of the lot numbered eleven ; and the Judge left the cause to the jury upon the whole evidence, — instructing them that the determination of the cause depended entirely upon the original location of that lot, as laid clown upon the face of the earth, prior to the drawing in 1786. If they were satisfied that the locus in quo was within the limits .of that lot as located prior to 1786, they wmuld find for the plaintiff,— otherwise, for the defendant; — and they returned a verdict for the plaintiff, w'hich was taken subject to the opinion, o.f the whole Court, whether the evidence offered and rejected ought to 'have been admitted.</p> <p>The defendant was not a trespasser, unless the locus in quo was part of lot numbered eleven, — and the only question to the jury was, what were the bounds of that lot ?</p> <p>The object of the evidence offered was, not to defeat a grant, —though the proprietors might lawfully, by a subsequent act, declare a draft null, if made erroneously and improperly, the lands still remaining in the hands of the proprietors; — but it was to ascertain the extent of the grant; and this could not appear without recurrence to the records and plan. If the plaintiff had not read from the records, the defendant might, — not to defeat the grant, — but to ascertain how much ivas granted.</p> <p>And this evidence was admissible. The plaintiff had introduced it, and could not therefore ,complain ; — and the whole ought to be taken together. It was a record o'f the transactions at the same meeting — relating to the same subject matter —reported by the same committee — being a continued investigation of facts, and reported from time to time, as fast as they could be ascertained.</p> <p>The question is not upon the effect of the evidence offered, but upon its competency. It is a record of transactions three years after those read by the plaintiff, and thus not coming within the rule of taking all the declaration of the party together;— and it was twenty-two years after the original draft of the lots in 178S. It is at most only the declaration of a grantor, made after the grant; and its admission would be destructive to rights vested under the prior location. Upon the same principle any draft of lots might be vacated at an adjournment of the same meeting, though years afterwards.</p> <p>As a confession of the grantors, the part read by the plaintiff was good evidence against them, as it went to shew the construction which they had given to their own grant; — but the part offered by the defendant related to another time, when the proprietors had an interest to narrow their grant. To suffer this would be to permit a grantor to control the deed after he had parted with the fee. Bartlett v. Delprat, 4 Mass. 702. Clark v. Wait, 12 Mass. 439. 1 Johns. 159.</p>

Entry sur disseisin. The tenant claimed title under a sale, for non-payment of taxes, by the collector of the direct tax of the United States for the year 1813. There was no certificate produced to prove that Levi Quinby, the assistant assessor, had been sworn as such; and the collector testified that he could not find that one had ever been returned to his office.

This was an action of the case against the late Sheriff of this county, for the neglect of one of his deputies.

This was an action of dower, in which the seisin of the demandant’s husband was the only fact in issue.

<p>Ir? eebt for taking and carrying away tlie plaintiff’s logs, against the statute, the declaration was thus: — “for that the “plaintiff at, &c. on the first day of May, A. D. 1819, being “ possessed of two hundred white pine miff-logs, and fifty Nor- “ way-pine mill-logs, which he had turned and put into the “ great Androscoggin river, above the falls in said Lisbon, with “ his mark on the same, to wit,-- and being so possessed of “ the same, the said Thompson at said Lisbon, on, &c. took, and “ sawed, and cut up, and carried away and destroyed the said “ logs, contrary to the statute in such case made and provided^ “ whereby an action hath accrued to the said Little to have and' “ recover fifty dollars for each and every log so sawed and cut “up, carried away and destroyed as aforesaid, and amounting “ in the whole to ten thousand dollars. ’ ,</p> <p>“ And for that the plaintiff ai,'&c. on the first day of May, u A. D. 1819, being possessed of twq hundred white pine logs," “ and fifty Norway-pine logs, other than those aforementioned, which he had'turned into the great Androscoggin “ river, above the falls in said Lisbon, marked, <&c. and being “ so possessed of the same, the said Thompson, at, &c. on, &c. “ took, and sawed, and cut up, and carried away, and destroyed “ the said logs, contrary to the statute in such case made and “ provided ; whereby an action hath accrued to the said Little “ to have and recover,”.&c. The writ was dated August 28,1821.</p> <p>After verdict for the plaintiff, the defendant moved in arrest t>.f judgment for the following reasons ;—</p> <p>1. Because it appears by both counts in the declaration that the taking, carrying away, and disposing of the logs therein set forth was in the year 1819, when the several statutes of the Commonwealth of Massachusetts in this case made and provided were in full force; and it is not averred in said counts or either of them that the said taking was contrary to the form of said several statutes of the said Commonwealth, as ought to have been averred.</p> <p>2. It is not averred, nor does it appear in and by either of said counts in the said declaration, that the taking, sawing, cutting up, carrying away and destroying the logs therein mentioned, was done and committed by the said Thompson without the consent of the said Little, the owner, as by law it ought to have appeared and been averred.</p> <p>3. It does not appear that the .said logs in' either of said, counts were suitable to be sawed into boards, or made or sawed into timber, shingles, joist, clapboards, or any other lumber whatever.</p> <p>4. The said declaration is unsubstantial, and alleges no of-fence or cause of action against the defendant.</p> <p>was about to argue upon the first cause assigned in the motion, - but it appearing that the action was brought after the passage of the law of Maine on this subject, this ground was abandoned,</p> <p>being called upon by the Court to support the verdict against the second cause assigned, contended that the exception was not material, the fault being cured by the verdict. It is the case of a good title, defectively set out. The want of the consent of the owner was a material fact, without proof of wThich he could not have had a verdict; and it must now be taken to have been proved at the trial. Moor ». Bosworth, 5 Mass. 308. Pangburn v. Ramsey, 11 Johns. Í41. Bayard v. Malcolm, 2 Johns. 550. No greater strictness Is required here than in the case of a tort at common law. The statute is not penal, because it does not create an offence where none before existed ; — but it is cumulative and remedial, and ought therefore to receive a liberal exposition.</p> <p>only referred to Spears' v. Parker, 1 D. E.</p>

This aetkm, which was debt oh a judgment, came before the Court upon a case stated by the parties. It appeared that a writ of execution on the judgment had been sued out, and duly extended on the defendant’s land.

Debt on an administration-bond. The writ was indorsed with the name of the attorney who brought this action; — and with this further indorsement; — “ This action is brought for the “ benefit of John McLellan of Portland aforesaid, assignee of the “amount of an invoice or bill of fish included in a judgment “ recovered in favour of Nathaniel Martin against the executors “of James Weeks in the Supreme Judicial Court; and for the “ benefit of Charles Stewart Daveis of Portland…

This was an action of trespass quare clausum fregit,- and was tried upon the general issue.' The locus in quo contained thirty-five aci’es, as to a small part of which the defendant pleaded that it was his own soil and freehold, but no question of law arose upon this part of the case. The whole lot,- of which the locus in quo was a part, contained originally one hundred-and thirty-five acres.

<p>What is reasonable time within which' an act is to be performed, when a con» tract is silent on the subject, is a question of law.</p>

This was assumpsit by the plaintiff as indorsee of a note of hand for three thousand dollars, against the defendants as makers ; to which thejr pleaded the general issue. The cause being called for trial in the Court of Common Pleas, the Court, on motion of the counsel for the plaintiff, called on the counsel for the defendants to state whether they had any substantial defence to the action.

This was ajscire facias on a judgment bf this Court at May term 1814, for ten thousand dollars, being the penalty of á bond given by Joshua Webb and Susanna Webb as administrators on the estate of Jonathan Webb, the other defendants being their sureties.

This was an action of assumpsit on a promissory note, made by one Thomas Crague, April 30,1817, payable to the defendant or his order in six months ; on the back of which' was written as follows ; — “ I guaranty the payment of the within note “ in six months. Thomas Little.

<p>Where one conveyed lands in fee with general warranty, and a stranger at the same time was seised in fact of part of the same land by an elder and better title, the entry of the grantee under his deed gives him seisin only of that part of which his grantor was seised ; — but as to the stranger, the entry of the grantee is a mere trespass.</p> <p>If, in such case, the stranger sue the grantee in trespass, and recover damages and costs against him, yet the grantee can only recover of his grantor the proportion of the consideration-money and interest; — the damages and costs •being recoverable only when incurred in defending the seisin which a grantee actually gained by conveyance from one who was seised in fact.</p>

Trespass, for taking a horse from the plaintiff. The plaintiff, being a deputy of the defendant, who is sheriff of the county, in the execution of his official duty attached the horse by virtue of an original writ in his hands against the owner of the horse, and delivered him to a third person for safe keeping, taking an obligation from the bailee to see him forthcoming •, and made due return of the precept with his doings thereon.

j| his was a writ of entry, in which were demanded 200 acres of land in Whiiejield, on_ the east side of Sheepscut river, 100 rods wide, and extending back from the river one mile; the demandants counting on their own seisin within 30 years and a disseisin by the tenants. As to a part of the premises adjoining the river, being about twenty-five acres of the front of the lot, the tenants pleaded a disclaimer, which was admitted.

The appellee was the widow of James Parsons, who died without issue,- leaving the appellant, who was his father, his heir at law; — and the appeal was from the decree of the Judge of Probate establishing'» nuncupative' will of the deceased.

<p>The statutes of Massachusetts incorporating banks in Maine arid in force at the time of the separation, being recognized in the public statutes of Maine. for the regulation of banking corporations, are thereby become public, statutes and may be proved by a printed copy.</p>

The prisoner was convicted of bringing into and having iri his possession within this State five false forged and counterfeit bills purporting to be bills.of the Kennebec bank, and six other false, forged and counterfeit bills, purporting to be bills of the Bank of the United States, with intent to utter and render them current as true, knowing them to be false, &c. The indictment contained but one count.

<p>In this action, which was assumpsit, the writ contained two counts; — one upon a note of hand made by the defendant, payable to the plaintiff “ as treasurer of the proprietors of the new “ meeting-house in NobUborough, or his successor in said of- “ flee — and the other upon a note of the same date and amount, payable by the defendant to the plaintiff in his private capacity.</p> <p>The defendant protesting that the plaintiff at the time of suing out the writ was not the treasurer of the proprietors, but had been succeeded in that office by one J. G. pleaded in bar that the notes mentioned in the two counts were one and the same,— that the proprietors were a voluntary association for the purpose of building the meeting-house, — that the plaintiff and the defendant, and divers other persons were members of the association, — that the note declared on was an accommodation? note, made for the purpose of ascertaining who were creditors and debtors among said proprietors in building the house •,— and that the note and all other credits among the proprietors is the common and joint property of the whole association, they ' all being in law but one person.</p> <p>The plaintiff replied that before action brought, for a good and valuable consideration, he sold and transferred the note to one S. C. in whom the equitable interest became vested and now is, and for whose use and benefit this action is brought, and that he received the full payment of S. C. therefor, as treasurer and trustee of the proprietors.</p> <p>Whereupon the defendant demurred in law.</p> <p>The pleadings disclose the fact that the defendant and other persons are equally interested with the plaintiff in the note in suit; and it is a well settled principle that all who have the legal interest must join in the action. It does not appear that the plaintiff is treasurer of the association by any legal appointment, or has been constituted to sue for their use, or is entitled to sell and dispose of securities belonging to the company. If he should die, the note would not be assets in the hands of his executors, but must go to the associates who alone are interested in the money, and who ought, therefore, to have joined in the suit. Jn that way also the defendant might avail himself by way of set-off, of his demands against the association, which, if this action can be sustained, will be defeated. 1 Chitty PL 5, 8. Pigot v. Thompson, 3 Bos. Pul,. 147. Gilmore v. Pope, 5 Mass. 491. Niven v. Spikerman, 12 Johns. 401.</p> <p>But if the plaintiff might sue, yet as between him and the defendant the note is void, being without consideration. Nothing passed from the plaintiff, and no benefit accrued to the defendant. Nor would a judgment in this case be any bar to a future action in the name of all the company. Fowler v. Shearer, 7 Mass. 14. Pearson v. Pearson, 7 Johns. 28.</p> <p>The amount of the plea is that the note was an accommodation-note, and is the joint property of all the company. But this contradicts the note on the face of it, and therefore it cannot be received in evidence.</p> <p>There being no corporation, the description of the plaintiff’s capacity is naught, and may be rejected. It is but descriptio persona.</p> <p>Here also a consideration appears. Each individual had received his proportion of the common benefit, for which he was indebted to the common fund*; and this debt is the sum he has agreed to pay.</p>

This was assumpsit for money had and received, and came before this Court upon summary exceptions taken by the plaintiff to the opinion of the Court of Common Pleas given in favour of the defendant upon a case stated by the parties.

While this action, which was trespass quare clausum fregit, was pending in the Court below, the original writ was accidentally lost. The plaintiff thereupon-moved for leave to file a new writ, which was refused by the Court, who ordered a nonsuit to be entered, and gave judgment for the defendant for costs.

This was a writ of entry in which the demandant counted on his own seisin within thirty years, and a disseisin by the tenant ; and it was tried upon the general issue, at the last October term in this county. The demandant, to prove the issue on his part, read in evidence a deed to himself from Mary Molineaux, administratrix on the estate of William Molineaux, dated September 11,1818, and a licence from the Common Pleas to her for that purpose.

The defendants were indicted in the Court below upon StaU 1821, ch. 168, for taking, carrying away, and converting to their owm use two logs lying upon the bank or shore' of a stream called-Dead river; this offence being made penal by that statute, and punishable by indictment in any Court of competent jurisdiction.

<p>A writ of review cannot be granted' in a criminal case, under any of the provisions of Stat. 1821. ch. 57.</p>

<p>Where several particulars are named, descriptive of the land intended to be conveyed in a deed, if some are false or inconsistent, and the true are sufficient to designate the land, those -which are false and inconsistent will- be rejected.</p> <p>If it appears that a debt secured by mortgage has been paid, the mortgagee,- in a writ of entry upon his deed', cannot have judgment for possession of tile land.</p> <p>In this State the assignment of a mortgage must be by deed.</p> <p>A bond may he assigned by delivery only, for a. full and valuable consideration..</p>

<p>Practice. In a writ of error coram vobis the regular authentication of tils' record under the hand of the Judge and seal of the Court below cannot be dispensed with, even hy consent of parties.</p>

<p>Practice. Consent of parties cannot be received to give validity to a bill of exceptions, unless it is certified by the Judge to be conformable to the [truth of the case.</p>

was assumpsit for the use and occupation of a tenement in Canaan, and came before this Court upon exceptions filed in. a summary manner in the Common Pleas.

<p>Where the right in equity of redeeming landsvwas sold on execution by the. . sheriff, and the purchaser forthwith brought his action against the mortgagor to have possession of the lands; and afterwards, and within the year, the mortgagor tendered to the demandant the purchase-money and interest, pursuant to the statute, but did not offer to pay the costs of the suit, — it was holden that under the "laws of this State the tender was no bar to the action, unless it included the costs also, •’</p> <p>JBut in such case, the Court, on payment of the money and costs, will stay farther proceedings.</p>

In a case stated by the parties, it appeared that, they had both signed a joint and several note to one Abbot, for the prop-, er debt of Soule only, Morton being in fact his surety, though not named in that character in the note 3 that Soule, to secura the payment of the debt, mortgaged his land to Abbot, the deed to be void on his payment of the note; — that Abbot on the same day indorsed the note to Mr. Bond, to whom Soule paid part of the debt 5 — and that 'Soule being…

This was an action of debt to recover a penalty against the bow plaintiff in error, “ for neglecting to attend military duty, 5,1 whereby he has by statute forfeited the sum of one dollar and fifty cents,” &c. The magistrate who tried the cause having rendered judgment against the original defendant, he sued out this writ of error to reverse it; assigning divers errors,-among which Was this — that there is no allegation in the writ that the offence was committed against the…

In the original action, which was debt for a penalty for neglect of military duty, the plaintiff proved that the defendant was regularly enrolled in the company of which the plaintiff was clerk, — that being duly notified, he neglected to appear at any company training, — that he did not offer his excuse within the eight days prescribed in the statute, — that he was not prevented from so doing by reason of extreme sickness, — and that during a part of the summer he laboured…

<p>An offer made by the tenant in a real action under Slat. 1821. ch. 47. sec. 4, cannot afterwards he withdrawn by him, it being in its nature an admission on his part, of the value of the estate.</p> <p>Where such an offer was made in the Court below, and the demandant proceeded to trial, and the jury having estimated the land lower, and the im-. provements at a higher sum th^n the tenant offered, the demandant appealed to this Court; — it was holden that the proceedings below being nullified by the appeal, the demandants’ right to accept the offer still continued, anct might be exercised in this Court,</p> <p>But whether he may accept such offer after proceeding; to verdict in a final trial, quart.</p>

JThis was an action of covenant upon an agreement under seal, signed by the defendants, and by “ Simeon Stetson for Amasa, Stetson” the plaintiff, by which the defendants agreed to enter upon certain unimproved lands of the plaintiff in the plantation of Stetson in this county, and make two farms thereof, and pay certain monies to the plaintiff with interest annually; in consideration whereof the plaintiff was to make,execute and deliver to them a sufficient warranty-deed of…

Upon a writ of error brought to reverse a judgment of the Common Pleas in assumpsit, the case was thus:— One John Smith, a citizen of Massachusetts, having a demand against Butman, the plaintiff in error, resident in this county, they referred that and all other demands between them to the arbitration of three men of whom Abbot the defendant in error was one, and entered into a rule of submission before a justice, pursuant to the statute.

This was an indictment at common law for the forgery of á certain writing obligatory or instrument in writing, which purported to be signed by the selectmen of Sangerville, and which was set forth in these words : — “ We the subscribers do recom- “ mend to all persons to whom it may concern, that the bearer “ J. Leland is a man of responsibility, and is able to satisfy the “ demand of five hundred dollars if he agrees to; we under-u stand that he has bought C. V. Ames' land…

<p>tfhe report of the commissioner under the resolve of March 3, 1803. respecting the townships .assigned to Gen. Knox and others, is conclusive evidence, against all persons, as to the occupancy by actual settlers, of the lots therein mentioned.</p>

In assumpsit for goods sold, it was proved that the goods were delivered to one Lalceman of Casline, who was the authorized agent of the defendant, a citizen of Boston, and who was empowered by the defendant to make all contracts on his account relating to his estates'in this county; — that the goods were for the defendant’s use, and were applied in making improvements on his said estates; — and that all the goods, except a few articles to a small amount, were charged in the…

This was an action of trespass vi et armis for taking away fhe plaintiff’s horse, and it came lip to this Court by exceptions filed pursuant to the statute.

In an action upon the covenants in a deed in which the defendant, in his capacity of collector of taxes for the town of Frankfort, undertook to convey to the plaintiff the lands of certain delinquent non-resident owners, — the plaintiff in his declaration alleged that the defendant therein covenanted “ that the “ taxes for which said land was sold Were assessed and pub- “ lished and notice of the intended sale of said lands given ac~ “ cording to law, and that in all…

<p>This was an action of the case against the late sheriff of this county for the neglect of one of his deputies in not delivering over to the plaintiff, upon demand, the bail-bond by him taken in a suit in favour of the present plaintiff, — and in not returning the bond to the clerk’s office within a year from the rendition of the final judgment,</p> <p>There were divers pleas in bar of the action; — the substance of which was — that within a year from the rendition of the judgment, and before the bail-bond was demanded, the original debtor — 1—surrendered himself, — 2—was surrendered by his bail — to the defendant, who had in his hands the writ of execution which was issued on the judgment; and that the defendant was ready to have committed him; but was directed by the creditor’s attorney not to commit him, but to suffer him to, depart.</p> <p>To these pleas the plaintiff demurred, assigning for cause— 1st, that the defendant had not alleged that the debtor was ever taken in execution in discharge of his bail, — 2d, nor that his bail had him in custody, ready to be delivered up, at all times within a year from the rendition of final judgment, — nor that he was surrendered in open Court before judgment; — and 3d, that the pleas were “ double, argumentative, uncertain,” &c.</p> <p>The sheriff is not discharged by any thing set forth in the pleas, unless the same matter would be a good defence in an action against the bail. But a surrender of the principal to the sheriff is not sufficient to discharge the bail, unless the debtor be taken in execution. Walker v, Haskell, 11 Mass. 3 81. Stevens v. Bigelow, 12 Mass. 434. The obligation on the bail that the debtor shall be found at all times within the year, results from a consideration of the statute and the bond, taken together; for the whole subject be-. ing regulated by the statute,- its provisions must be regarded as forming a part of the contract of bail in all cases; The plea therefore is bad, unless it shew that at all times within the year1 the debtor might be found and arrested. The creditor has á right to his lien on the body during that period, that he may choose his own time for making the arrestj with reference to the greatest probability of the debtor’s redeeming himself by payment of the debt; — and if at any time within the year he is not to be found, the bond is forfeit. That may have been the propitious moment to secure the debt by an arrest. Ctesar v. Bradford, 13 Masst 169. Simmons V; Bradford, 15 Mass. 82. 4 Bac. Abr. 464.</p> <p>The bail bond became á nullity by the surrender of the debtor. The condition was that he should abide the final judgment, and should not avoid. This he has performed, by surrendering himself to the sheriff, who had the' writ of execution against him. It was éñough if he was ready to be taken ; for this was giving to the creditor the whole benefit of the pledge. Champion v. Noyes, 2 Mass. 481. The provisions of the statute for a surrender in open Court after scire facias brought, are merely for the further relief of the bail; but do not affect the principle that a surrender in pais is a discharge at common law. 3 Bl. Com. 290. Rice v. Carnes, 8 Mass. 490„-</p>

<p>On ail appeal from a judgment of the Court of Common Pleas upon an issue of law, single costs only are recoverable ; such issues not being- within the provisions of Slat. 1822, ch. 193, sec, 4.</p>

Jln an action of trespass quare clausum fregit, the case was thus: — The plaintiff, by his deed dated September 15, 1819, bargained and sold the close described in the writ, to one Bickford, in fee, taking from Bickford at the same time a mortgage of the same land to secure the payment of the purchase-money, for which Bickford also gave his notes of hand to the plaintiff, amounting to three hundred and thirty dollars, payable at different periods in the course of two years…

Assumpsit upon two promissory notes. From the exceptions. Sled in the Court below it appeared that these .notes were given. for part of the consideration-money mentioned in a certain quit» claim deed of lands in Brownfield, given by the plaintiff to Na* hum Witham one of the defendants.

<p>This was assumpsit upon a spe.ciabagreement dated October 15, 1814, by which the plaintiff and several other inhabitants of the first parish in Otisfield bound themselves to assist the parish by creating a fund “ to support a minister of the gospel of the “ congregational denomination and calvinistic doctrine.” The terms of the agreement were — that the interest on the amount subscribed by each party should be paid annually, so long as such party should continue to reside in Otisfield; — and that iff within seven years then next, any subscriber should remove from that town, and continue to reside in another, town for the space of three years together, the note or notes which he might, give to the parish treasurer for the amount of his subscription should be given up. The declaration contained also- a count for money had and received.</p> <p>It appeared that the plaintiff subscribed two hundred dollars to the fund, for which sum be gave his promissory note to the parish treasurer; — that in the year 1815 he voluntarily paid one hundred and sixty dollars of the note, by procuring other persons who were indebted to him to give their notes to the treasurer for that amount; — that in March 1818 he removed from Otisfield, and had never returned thither to reside; — ■ that after the commencement of this suit he paid a small balance of interest due on the note at the time of bis removal, which the treasurer received without objection, and without knowledge of the commencement of this suit; — that the original note, and the notes given in part payment thereof, or the money, had been duly demanded by the plaintiff; — and that the defendants were willing to deliver up the original note, on receiving the balance of interest aforesaid, but refused to deliver the others or to refund the money paid to them.-</p> <p>Hereupon a verdict was taken for the plaintiff for the principal sum paid, and interest upon it, subject to the opinion of the whole Court upon the effect of the evidence in the case.</p> <p>1. Upon a fair construction of the contract it was never intended by the parties to give a tight of action to recover back monies paid; but only that where the note remained unpaid at' the time of removal, its payment should not be enforced.— If the party chose to pay, it was well, — if not, he should never be compelled to pay more than the interest, if he was punctual in this. And this construction is reasonable. The object of the parties was to support the public m dstrations of religion, by a permanent fund. But the plaintiff would compel them to pay the money belonging to this fund for notes of which they never have received payment, and perhaps never will be able to collect; and which they never can enforce so long as the interest is paid, and the makers reside in that town. The principle on which this action is founded will oblige the defendants always to keep on hand, and unproductive, all the money voluntarily paid, or at least to preclude them from vesting it in permanent loans, since they must be obliged to refund it upon demand. Further, if the plaintiff is entitled to the money for the amount of the substituted notes, it is because they are his property. If so, his remedy should have been in trover. But the payment of the money, in this manner, upon his own note, is a waiver of so much of his rights under the special contract.</p> <p>2. The payment was voluntary, and so not recoverable back unless paid by mistake or coercion, which the case does , not find. Cartwright v. Rowley, 2 Esp, 723. Knibbs v. Hall, 1 Esp. 84. 2 Comyn on Conir. 41 — 43. Brown v. Me Kinnally, 1 Esp. 279. Morris v. Tarín, 1 Dal. 147. Bilbie v. Lumley, 2 East. 469. Taylor v. Hare, 1 New Rep. 260. Marriot ¶. Hampton, 2 Esp. 546. Hall v. Shultz. 4 Johns. 240.</p> <p>3. The action is prematurely brought, the interest due on the plaintiff’s removal from Otisfield not having been then fully-paid up. For until such payment of interest, the note was nob by the terms of the contract, to be surrendered.</p>

In this action, which was assumpsit for money had and received, a verdict was returned at September term 1820, in favour of Asians for $2463,23. The defendants then filed a motion for a new trial at common law, under which the cause was continued till May term 1822, when the motion was overruled, and interest being added to the verdict up to that term, judgment was then rendered for the original plaintiff for $2709,55, being the amount of the verdict and intei’est.

This was a writ of entry on the demandant’s own seisin. She was the grand-daughter of Eliphalet Perkins, who died in 1775, leaving six children, of whom the tenant was one, and Lydia, the demandant’s mother, who afterwards married David Thompson, was another. The demandant, who was the issue of this marriage, was born in December 1784, eight days before the death of her mother.

Assumpsit for tolls upon defendant’s logs which had passed down the Bear-Camp-River, in the State of New Hampshire, in which State the plaintiffs were erected into a corporation.

Trespass, for taking and carrying away the plaintiff’s sheep..

<p>^Depositions taken before one who has acted as the agent of the party in the same cause, are inadmissible,</p>

This was an action upon tbe Stal. 1821. ch. 122. sec. 22, brought to recover the penalty of sixty dollars for bringing into and leaving in tbe town of Parsonsfield one Isaac Stanton a poor and indigent person, he having no legal settlement in that town, the defendant knowing him to be poor and indigent.