Volume 20 — Maine Reports

This was an action of trespass on the case for a libel. Plea, the general issue. The plaintiff read in evidence the article charged as libellous in the Kennebec Journal under date of Nov. 5, 1834, which was as follows: —. “Post Office Reform.” “We understand that Samuel Usher, Esq. postmaster of Kingfield in Somerset county, has been arrested for being a little too eager for the spoils of victory.

<p>The evidence of the sale of a possessory interest in real estate is not required tb be by deed — and if by deed, the same need not be acknowledged nor recorded.</p>

<p>Exceptions from the District Court, Allen J. presiding.</p> <p>This was an indictment against the defendant. The first count was for lewdly and lasciviously associating and cohabiting with one Lydia Humphrey, a married woman,* the defendant being a single man. There was no allegation that the offence was against the form of the statute.</p> <p>The second count was for fornication with the same person, which was alleged to have been committed against the form of the statute.</p> <p>Before the cause was committed to the jury, the counsel for the defendant moved the Court to quash the indictment, but the motion was denied. The jury returned a verdict of guilty on the first and not guilty on the second, and exceptions were filed.</p> <p>argued that the first count was defective in not concluding contra formam statuti. Such an allegation is necessary in every indictment for a statutory of-fence, and should be in every count. It is necessary in order that the defendant should know with what offence he is charged, and that the Court may know from the record what judgment to pronounce. King v. Holland, 5 D. & E. 624; 4 Bac. Ab. 8; Com. v. Stockbridge, 11 Mass. R. 279. There is no reference to the other count. Every allegation necessary to constitute an offence must be alleged. 1 Chitty’s Cr. Law, 233 ; King v. Aylett, 1 D. & E. 63. The Court will not presume the offence to have been committed against the form of the statute unless it be so alleged. Baxter v. Martin, 5 Greenl. 80. The words contra formam are essential in the description of every statutory offence. 1 Chitty’s Cr. Law, 173. The counts are as distinct as several counts in a declaration. 4 Bac. Ab. 9. An indictment like the present one was adjudged bad in The King v. Mason, 2 D. & E. 581.</p>

This was an action founded on a note signed by the defendant as administrator of one Zadock French deceased. The parties agreed that judgment should be rendered against said Ebenezer, either in his individual capacity, in which event the plaintiff was to take no costs, or against him as administrator with costs, as the Court may adjudge. This case was submitted upon the briefs of counsel.

This was an action against the defendant, as indorser of a draft dated July 1, 1836, payable in sixty days, at the Suffolk bank, Boston, drawn by S. & G. Turner & Co. on Nath’I Fifield, and by him accepted. The plaintiff, to prove his claim, introduced the notarial protest of Win.

<p>Tho cashier of a bank in which a draft has been left for collection, is a competent'witness to prove that due notice of its dishonor has been given to the several parties.</p> <p>Where the final payment of a draft was guaranteed, it is sufficient to maintain a suit against the guarantor to prove the insolvency of the parties to the draft before the commencement of the suit, and that the draft could not have been collected.</p> <p>Neglect to proceed against the principal debtor, or to become a party to his assignment, (in case he has made one,) does not discharge the guarantor in whole or in part.</p> <p>The guarantor of a contract tainted with usury, is so far a party to the same that he may set up usury as a defence to a suit upon his guaranty.</p>

Exceptions from the District Court, Allen J. presiding. This was an action of replevin, returnable before the Municipal Court for the city of Bangor, for certain juniper knees. The defendant pleaded the general issue. Judgment was rendered in his favor, from which the plaintiff appealed.

<p>This was an action of assumpsit brought by the plaintiff for services in keeping school in the town of Hampden, in district No. 15, in the winter of 1835-6.</p> <p>The plaintiff introduced the certificate of Asa Matthews, preceptor of Hampden Academy, and a gentleman of collegiate education, dated Nov. 21, 1S35; the certificate of Hannibal Hamlin, Esquire, dated Dec. 27, 1834; the certificate of the selectmen of the town of Newburgh, the town in which said Jackson lived, of his good moral character, dated Dec. 14, 1835. Plaintiff further read in evidence, as the admission of the defendants, the following offer to be defaulted. —</p> <p>“Penobscot, ss.</p> <p>“ Supreme Judicial Court, Oct. Term, 1836. Leonard Jackson v. The Inhabitants of Hampden.</p> <p>“And now the said inhabitants of Hamden, on the first day of the term of said Court, by their agent, offer to be defaulted in said action, for the sum of ten dollars, debt or damage, and costs of court to be taxed by the Court according to law.</p> <p>“ Signed, Hannibal Hamlin, Agent and attorney for the town of Hampden which offer in writing was filed the first day of said term in court, and so entered on the docket of said Court.</p> <p>The plaintiff further offered in evidence the certificate of Harvey Hawes, and Silas Baker, two of the superintending school committee of said Hampden for the year A. D. 1835, which being objected to, the Court refused to admit, without record proof that said Baker and Hawes were legally chosen and sworn.</p> <p>The plaintiff then offered the records of the town of Hampden, by which it appeared that said Baker, Hawes, and Hannibal Hamlin, Esquire, of said Hampden, were duly chosen and qualified as said superintending school committee, and thereupon offered to read said certificate, which being objected to, was rejected by the Court. It appeared by the testimony of Charles Andrews, that the plaintiff, after having been hired by the agent of the said district, and before he commenced said school, offered himself for examination at said Hamlin’s office, and that said Hamlin was absent; and the plaintiff hereupon again offered said certificate, which being objected to by the defendants, Emery J. who tried the cause, rejected it, and nonsuited the plaintiff. To which ruling the plaintiff filed exceptions.</p> <p>The admissions of the defendant of record, and the offer to be defaulted, are a waiver of their right to contest the legal qualifications of the plaintiff. The offer to be defaulted admits the contract to have been legally made, leaving the amount due the only question to be settled. It is equivalent to a tender, and has the same binding force. McLellan v. Howard, 4 D. & E. 194; Cox v. Brain, 3 Taunt. 95 ; Roscoe on Ev. 31; Morton v. White, 4 Shep. 53; Bul. N. P. 298; Dyer v. Ashton, 1 B. & C. 3.</p> <p>The plaintiff here did his duty by calling on the third member of the school committee. He did all in his power. The certificate of Hamlin, of the preceding year, and that of two of the committee, should have been received, leaving the effect of the evidence for. subsequent consideration. The certificate of two being uncontradicted, is presumed to be the certificate of all. Downing v. Rugan, 21 Wend. 178; Williams v. East India Company, 3 East, 192; Rex v. Haskins, 10 East, 216.</p> <p>It would be a fraud on the plaintiff, who has done all in his power, for the defendants to take advantage of the absence of the third member of the committee, which was caused by their own act. Hartwell v. Littleton, 13 Pick. 233; Clark v. Great Barrington, 11 Pick. 264.</p> <p>No contract is here sought to be dissolved, and the same strictness is not necessary as when that is the case.</p> <p>The offer to be defaulted has not the same effect as a tender. The object of the statute was to enable the defendant to settle a suit without further litigation. If it were to be considered as a tender, it is available to the plaintiff only to the amount tendered. It is no admission for the excess above the sum tendered.- Cox v. Parry, 1 D. & E. 464. Fraud may be proved after a payment in court. Muller v. Hartshorn, 3 B. & P. 556. As to the rest, the plaintiff stands as if no offer had been made. Stevens v. York, 4 D. & E. 10; Stodhart v. Johnson, 3 D. & E. 657.</p> <p>The cases cited for the plaintiff are where no statute qualifications are imposed upon him. The requirements of the statute are compulsory and cannot be waived. The plaintiff at his peril must have the necessary certificates; and if he does not have them he is liable for a penalty. The rights of these parties were determined, and the law on the facts presented in this report settled, when this case was before the Court. Jackson v. Hampden, 16 Maine R. 184.</p>

<p>Where a crime or misdemeanor is committed under color of corporate authority, the individuals concerned, and not the corporation should be indicted.</p>

This was assumpsit on a note signed' by the defendants and payable to Enoch Huntington, treasurer of the committee of the surplus revenue, for the sum of í) 100, and dated March 23, 1837. The note in suit was given for a portion of the surplus revenue. It appeared, that at a regular town meeting, held on the 14th March, 1837, the town voted to receive and to Joan the surplus money, and chose a committee of three for that purpose.

Exceptions from the District Court. This was a special action on the case to recover of the defendants for the loss of a horse belonging to him, occasioned by a defect in a road in the town of Greenbush, which the defendants were by law bound to keep in good repair. The liability of the defendants to keep the road, whore the accident happened, in good repair, was not denied.

Exceptions from the District Court. This was an action of assumpsit for so much money paid, laid out and expended, and for money had and received by the defendant to the plaintiff’s use.

<p>A conveyance of “ a certain saw mill site, in and with the saw mill, machinery, &c. thereon standing,” &e. “ moaning to convey all the promises which said A B (grantor) purchased of C D by deed dated, &c. with all the privtheges and subject to all the restrictions therein expressed •- reference thereto being had for a more particular description of the premises,” will pass the mill and tthe whole land under the same, notwithstanding the grantor acquired by the deed to which reference was had, but a part of the premises upon which the mill was erected.</p> <p>The term mill site embraces all the laud the mill covers.</p> <p>Erroneous or defective references to the sources of title will not be permitted to vary a prior description clearly and definitely given.</p>

This was a petition to enforce a lien under a written contract for performing certain work upon two houses belonging to the defendant. The contract between the parties was dated the 30th day of June, 1836.

Exceptions from the District Court, Allen J. presiding. This was an action of trespass for taking and carrying away thee tons of hay. Plea, general issue. The plaintiff, to maintain the issue, read in evidence a deed of release from William Sherburne to himself, dated June 2, 1830, of the lot of land on which the hay had been cut.

This was an action of debt founded upon a statute of this State, passed March 24, 1835, entitled “ an act for the preservation of the salmon, shad and alewive fisheries, in the Penobscot river, &c.and also upon an act additional to said act passed March 30, 1836. The plaintiffs to sustain their action introduced evidence of the qualification of James Stubbs as fishwarden for the county of Hancock, for the year 1836.

<p>This was debt on a judgment, and the right of the plaintiff to recover was submitted to the Court on the following statement of facts.</p> <p>It was admitted that the judgment declared on had been duly recovered; and that the defendant had been arrested on an execution upon said judgment, and been discharged from arrest and imprisonment by giving the bond required by the statute for the relief of poor debtors, with the conditions of which he had neglected to comply.</p> <p>If upon the above facts this action can be maintained, the defendant is to be defaulted; if not, the plaintiffs are to be nonsuit.</p>

This was a special action of the case against the defendant, as sheriff of the county of Hancock, for the default of one J. P. Fowlcs, a deputy sheriff under him, iu not legally serving the writ hereafter mentioned.

This was an indictment for the forgery of the following instrument which was alleged to be an acquittance or discharge for the payment of money. The instrument alleged to be forged was set forth in the indictment as follows: — “ St. Albans, Aug. 4th, 1833. “C. C. Cushman, Esq. “ Sir, The bond you took for me on the Alden G. Handy demand must be attended to before it is out.

This was assumpsit against the defendants, for neglect of duty, as attorneys at law. On the trial of the cause, before Emjery J. the plaintiffs proved by the testimony of John H. Richardson, that in the winter of 1835, he sent a demand in favor of the plaintiff against one Kimball, for collection.

<p>This was an action of trespass brought by the plaintiffs as copartners against the defendant, a deputy sheriff, for taking and carrying away a certain quantity of goods belonging to their copartnership. The writ w7as dated Oct. 10, 1837.</p> <p>The defendant first attached the goods in dispute by virtue of a writ in favor of Jenness & March, against Thomas G. Brown, one of the plaintiffs, on July 18th, 1837. , The goods then attached were retained by him, and were attached subsequently on Nov. 8th, 1837, by virtue of a writ in favor of Alfred Willard & Co. against Tho’s G. Brown & John Douglas, as co-partners under the name of Tho’s G. Brown &. Co. Judgment was obtained in these suits, and the executions were seasonably placed in the hands of a deputy sheriff, by whom the property attached was sold and the proceeds applied to the payment of the last mentioned suit against the firm of T. G. Brown & Co.</p> <p>There was evidence tending to show the existence of a firm as alleged by the plaintiff, but this point was rendered immaterial by the decision.</p> <p>Upon these facts being proved or admitted, Emery J. who presided at the trial, ordered a nonsuit with leave for the plaintiff to set it aside upon the report of the Judge.</p> <p>contended that partnership funds must first be applied to the payment of partnership debts, and the creditor of one of the firm can sell only the interest of that partner after the joint debts have been paid. Church v. Knox, 2 Day, 514; Prince v. Jackson, 6 Mass. R. 242; Fisk v. Herrick, 6 Mass. R. 271 ; Wilson v. Conine, 2 Johns. 280; Moody v. Payne, 2 Johns. Ch. 548; Knox v. Simmons, 4 Yeates, 477 ; Gilman v. N. A. Land Co., 1 Pet. U. S. It. 460; Harrison v. Sterry, 5 Cranch, 289; Commercial Bank, v. Wilkins, 9 Greenl. 34.</p> <p>The rights of partners in the firm property, are different from those of tenants in common in a chattel. Matter of Smith, 16 Johns. 109. Partners are joint tenants, and not tenants in common. 1 Mad. Ch. 93; Exparte Young, 2 Yes. & Beame, 242. A joint tenancy cannot be severed. Shaw v. Hearsey, 5 Mass. R. 521; Hewes v. Bayley, 20 Pick. 98. The partnership property itself cannot be attached to answer the debt of one member of the firm. All that can be attached is that quantum of interest which the debtor partner could extract out of the concerns of the partnership after all claims against the firm should be paid. Button v. Morrison, 17 Ves. 193. The sheriff can sell only subject to the debts of the firm. The separate creditor takes as the debtor himself held the property, subject to the rights of the other partners. The sheriff cannot seize the partnership effects themselves, for the other partner has a right to retain them for the payment of the partnership debts. Fox v. Banbury, Cowp. 445; Taylor v. Field, 4 Yes. 369; Young v. Keighly, 15 Ves. 559. The sheriff sells only the. interest of the partner in the partnership property; but neither the sheriff nor a purchaser has a right to the possession of the property. Cram v. French, 1 Wend. 311; Dunham v. Murdock, 2 Wend. 554. The King v. Sander-son, 1 Wight, 50; Church v. Knox, 2 Conn. R. 516. The levy under the execution only gives a right to an account. All that a court of law can do is to issue execution against the interest of the separate partners, and not against the effects themselves. This interest is the partner’s share in the surplus after the payment of partnership debts. Nicol v. Musford, 4 J. C. 522; S. C. 20 Johns. 611. A court of law cannot take jurisdiction of accounts between partners. Rogers v. Rogers, 1 Hall,- 391.' The remedy therefore should be sought in a Court of Equity. The original seizure of the goods on a writ against one of the firm, was tortious, and it is no defence, that having wrongfully taken them they were after the commencement of this suit taken by virtue of a writ against the firm.</p> <p>Trespass may be maintained, the original taking having been wrongful. Green v. Morse, 5 Greonl. 291 ; Nelson v. Merriam, 4 Pick. 249 ; Foss v. Slewarl, 2 Shop. 312; Campbell v. Fhelps, 1 Pick. 62; Agry v. Young, 11 Mass. 11. 220; Rool v. Chandler, 10 Wend. 110; Vail v. Lewis, 4 Johns. 450; Phillips v. Hale, 8 Wend. 610.</p> <p>The plaintiffs have no separate interest in the partnership property until it is relieved from partnership liabilities. They are the mere trustees for those who have claims against the firm. Though Brown might have had a resulting interest in the partnership; still the defendant is liable, as be did not seize that interest, but the properly itself. He has executed process unlawfully, and thus has become a trespasser.</p> <p>insisted that the plaintiffs could not maintain trespass for attaching the interest of a member of the firm. The cases cited relate to the appropriation of the funds of the partnership. They were cases in equity, where the contest arose between different claimants. In no case was a suit at law brought by the partners. Their remedy is in equity. Collyer on Partnership, 81—2. The attachment was valid as against the firm. The creditors of the firm subsequently interfered; and the goods attached were applied to pay the debts of the firm.</p>

This was an action of the case brought against the defendant, late sheriff of this county, for the default of Joseph T. Copeland, then one of his deputies, for taking an insufficient surety upon a replevin bond, in a suit of replevin brought by Jonathan and David Greene against the plaintiff. ‘ Plea, the general issue. The defendant likewise filed a brief statement, in which he relied upon the statute of limitations.

Assumpsit against the defendant as guarantor and indorser of two promissory notes, signed by John Sargent, Jr. and William T. Sargent. One note was for $440, and interest, dated July 15, 1835, and payable to the defendant or order, in one year, and by him indorsed before maturity to the plaintiff, in the following manner, viz. — “Good to Joshua Lane or order, without notice.

Thf. fuels in this case sufficiently appear in the opinion of the Court. This case was argued in writing at very great length. referred to and commented on the following cases, to support the position that the legacy to the son of the testator was specific, and that the evidence offered should have been received. Wyman v. Brigden, 4 Mass. R. 154; 2 Dane’s Abr. 240; Whthe v. Winchester, 6 Pick. 52; Farwell v. Jacobs, 4 Mass.

<p>This was assumpsit against the defendant as indorser of a note of hand signed by one Isaac F. Spaulding. The facts in the case sufficiently appear in the opinion of the Court.</p> <p>The cause was argued in writing’.</p>

<p>The mortgagor is seized of an estate of freehold, and whthe in possession may convoy the mortgaged premises, or may bequeath them as and for dowor, or they may be assigned by the judge of probate, and the dowress may enter under such assignment, and hold the same and redeem tlio mortgaged premises.</p> <p>The widow, by virtue of such assignment, has the right in equity during her life, and the reversion remains in the heirs at law, and in such case, either may redeem.</p> <p>If the heir at law or his assignee redeem, he may oust the widow, unless she should redeem by paying such sum as be may have paid for redemption, in which case she and her heirs would hold till the amount paid by her should be reiundod.</p> <p>A mortgage is a mere charge upon the land mortgaged, and whatever will give the money will carry the estate in the land along with it.</p> <p>The mortgage being only security for the debt, the mortgagor has all the rights he ever had against all but the mortgagee.</p>

Exceptions to the ruling of Peiiham J. The facts in the case fully appear in the opinion of the Court. The contract in this case was not to be performed within a year from the making thereof, and is therefore within the statute of frauds. St. 1821, c. 53, 1. It is not taken out of the statute by the fact that part was to be or was performed within a year. Comyn on Contracts, 23, 232; Boy dell v. Drummond, 11 East, 142; Bul. N. P. 202; 3 Bl. Com. 160; 2 Stark.

This was a suit against. the indorser of a note signed by Sheppard Sawtell. Suits were commenced at the same time against the maker and indorser. Judgment was rendered against the maker and the execution which issued thereon was satisfied by a levy upon the real estate of the maker.

<p>It is not necessary to render a policy of insurance void, that there should be a wilful misrepresentation or suppression of the truth. A more inadvertent omission of facts material to the risk, and such as the party insured should have known to be so, will avoid it.</p> <p>The insured is only bound to state in reply to interrogatories on that, subject, the distance and situation of those buildings, which a man of ordinary capacity would judge likely to endanger, in case of tiro, the building insured; not those which by any possibility, might cause its loss.</p> <p>The expression of an opinion, if honestly entertained and communicated, is not a misrepresentation, however erroneous it may prove to be.</p>

This was an action against the defendant, who was sheriff of the county of Penobscot, for the default of Joseph Leavitt, one of his deputies, in not keeping property attached by him on a writ in favor' of the present plaintiff against one William P. Parrott, so that the same might be sold on the execution subsequently obtained, which was within thirty days from the rendition of judgment, placed in the hands of deputies of Otis Small, the then sheriff.

This was assumpsit against the defendant as indorser of five bills of exchange, payable at the Suffolk Bank, Boston, and as promissor of one note of hand.

<p>In a suit on two drafts, where the defence relied upon was usury, and the verdict was for a less sum than the amount due j it was held, that such verdict established the fact of usury.</p> <p>A suit brought on two acceptances, in one of which more than legal interest is reserved, is within the provisions of the statute against usury, and the defendant is entitled to costs.</p>

<p>Exceptions allowed after a default voluntarily and unconditionally submitted to by a defendant are irregularly taken, and will be dismissed.</p> <p>A plea in abatement sotting forth that no service lms been made on one of the defendants without alleging such defendant to be co-promissor or obligor is bad.</p> <p>When the place of residence of a defendant has been mis-deseribed and the officer in consequence thereof has retamed mom est inventos, the writ may be amended by inserting his proper place of residence and service bo made on such defendant by virtue of St. 1835, c. 700.</p> <p>A new description of a defendant is inserting a now defendant within tthe mischief to bo remedied by that statute.</p>

This was an action of entry on the seizin of the plaintiff’s ancestor, Lewis F. Delesdernier, Jr. Plea, general issue. It appeared that in 1815, Lewis F. Delesdernier, senior, conveyed the premises to his sons, Lewis F. Delesdernier, Jr. and William Delesdernier, who soon after went into actual possession, and remained there till Lewis, Jr. the plaintiff’s father, died.

This was an action of assumpsit, on an account annexed, to recover for his services as a schoolmaster in the town of Cooper.

This was an action against the defendant as indorser of a promissory note, dated at Calais, May 5, 1835, for $35, signed by P. H. Glover and Billings Blake, and payable to the defendant or order, in one year from date, and interest, and indorsed by the defendant and one Wm. H. Griffith. From the report of the case by Shepley J. who tned the cause, it appeared by the testimony of Wm.

Bill in equity, against Wm. Hooper and Henry Cobb. The plaintiffs in their bill allege that prior to Aug. 1, 1835, one Abijah Feleh, the father of these complainants, was seized in fee of certain lots of land in Limerick plantation, containing 1280 acres; that being so seized, William Hooper, one of these respondents, applied to said Abijah to purchase said land, and took a bond for thirty days of said land on certain terms therein specified; that before the bond expired,…

This was assumpsit on two promissory notes. There was also a count for-an account annexed,'charging the defendant with L. D. Shaw’s draft on Shaw & Dewey, and damages and expenses thereon, amounting in all to $416,90, and the usual money counts. The writ was dated March 15, 1839.

This was debt on a bond, dated March 24, 1832, the condition of which was as follows: — “ that whereas the said Pike has contracted to convey by deed of release and quitclaim, his right, title and interest in and to the lath machine and the water therefor which is under saw mills number thee and four, at Union mills in said Calais, for as long a time as these mills, numbered thee and four shall stand; and the said Sawtell in consideration thereof has given to said Pike his,…

This was an action of covenant broken. The allegations in the writ were, that Wm.

<p>Assumpsit against the defendant as drawer of a draft on Hall & Duren, and by them accepted, dated Calais, July 24, 1837, for $900, and payable to the order of Zimri B. Heywood, at the Suffolk Bank in seventy-five days from date, and by him indorsed.</p> <p>From the report of Shepley J. before whom the cause was tried, it appeared that the draft was delivered by Heywood to one Heman Norton in part payment of his share of timber cut in township No. 4.</p> <p>On the part of the defendant, it was proved that the draft was an accommodation draft, drawn and indorsed for the accommodation of Hall & Duren, and had been given for a consideration which had entirely fathed.</p> <p>The plaintiff read the deposition of Heman Norton, which was admitted subject to all legal objections, to prove that he transferred the draft to Nathaniel Norton before its maturity, in consideration of money lent him by the said Nathaniel Norton, five or six years previous to and during the year 1837; and that the draft in question was received in payment of money borrowed of the plaintiff; and that he, Heman, was insolvent at the time of the alleged transfer of the draft, and still continues insolvent.</p> <p>It appeared that Heman Norton and Nathaniel Norton were residents of New York at the time of the alleged transfer of the note.</p> <p>The jury returned a verdict for the plaintiff, and the defendants filed a motion for a new trial, because the verdict was against the evidence in the case.</p> <p>The defendant is an accommodation indorser. The draft was passed to H. Norton, in payment for the stnmpage of timber to which he had no title. H. Norton could not have maintained an action on this draft. The draft being an accommodation draft, and the consideration for its transfer to H. Norton having fathed — and the defence of want of consideration being good as against him — the holder is bound not merely to show that it was indorsed before maturity, but that he received it in good faith. Aldrich v. Warren, 16 Maine R. 468; Munroe v. Cooper, 5 Pick. 412; Duncan v. Scott, 1 Camp. 100 ; Rees v. Headfort, 2 Camp. 574. The plaintiff is not entitled to recover on Norton’s testimony. The transfer being in New York the lex loci must govern. The plaintiff must prove that the draft was taken in payment of his debt against H. Norton, and that he risked the insolvency of all the parties to it. No evidence of this fact was given. 1 Dane’s Abr. 442; Tobey v. Barber, 5 Johns. 68; Rosa v. Brotherson, 10 Wend. 85. H. Norton was an incompetent witness, being interested. 2 Stark. Ev. 728.</p> <p>insisted that the jury had found that the draft was indorsed in good faith to the plaintiff, in payment of a pre-existing debt. As between an innocent holder and maker, no inquiry as to the consideration of the draft can be gone into. The case in 10 Wend. 85, is overruled in 16 Wend. 659.</p> <p>If Norton’s testimony were excluded, the result would be the same, the burthen being on the defendant to show how the draft was obtained. The presumption of law is, that the plaintiff came honestly by it.</p>

This was an action of assumpsit. The general issue was pleaded and joined. Held: at which time it was voted to raise the money to settle said warrant, and said Anderson and Mosely were again chosen a committee to settle the warrant of distress with the owners of the same.

This was an action, against the defendant, sheriff of the county of Washington, for the default, of Thomas Skolfield, a deputy sheriff under him, in not safely keeping property attached and in releasing the same.

Thts was debt on a bond given by the defendants to John Dickinson, treasurer of the town of East Machias, the said Savage being the principal therein, and the other defendants sureties for him as collector of taxes in that town, for the year 1834. The condition of the bond appears in the opinion of the Court. The plaintiff read in evidence from a book termed the Assessors’ Book, an assessment of taxes for the year 1834. It did not appear to have been signed by the assessors.

<p>Mem.—Weston C. J. was not present at the hearing of any causes during this Term, being employed in jury trials in the County of Washington.</p> <p>When in a deed two monuments are described, and the length of the line between them is given, but one of the monuments cannot be found, the location of the lost monument is to be ascertained by measuring the given length of line from the known monument, and not by a reference to and conformity with the length of other corresponding lines on the same tract on which the monuments have been preserved.</p> <p>Where a grant is made and bounded by monuments named as existing upon the earth and by distances between them, and not by monuments and distances named as on the plan only, the admeasurement should be made upon the earth, and not by the scale upon the plan.</p> <p>The proprietors of a township surveyed through mistake a portion of land without the limits of their grant, and conveyed the same, describing it as within their limits.—The grantee entering and occupying such premises with a claim of ownership and adversely to all others, will acquire a title by disseizin by lapse of time.</p> <p>The rule that occupation by mistake does not give right, may in such a case be applied to the grantors, but is hot applicable as against the grantees, who are not expected to be familiar with rights of the grantors, and who must be considered as intending to claim what they have purchased.</p>

This was assumpsit, for articles furnished the schooner Caleb and owners in 1832, at the request of Jeremiah Thurlo, master. It was proved at the trial before Weston C. J. that these goods were furnished upon the credit of the defendant, after inquiry into his circumstances, and were charged on the plaintiffs’ books to the Caleb and owners and were such as the owners would be liable for, if Thurlo, as master, had authority to purchase them on their credit.

This was a special action of the case upon the 13th section of the statute, c. 195, passed in 1835, for the relief of poor debtors. The cause was tried before Emery J. The writ was dated Sept. 23, 1839. The general issue was pleaded and joined.

This was a writ of entry to recover a parcel of land situate in Belfast.

<p>One e'o-tenant, holding a mortgage on the part of the other, united with him in a deed of the laud of which they -are co-tenants, by which the several portions of each are conveyed, and in which the premises conveyed are said to be “ free from incumbrances,” and “ that ihe grantors have good right to sell and convey,” without causing any exception to be made of his own title as mortgagee, and without disclosing its existence to the purchaser. He is estopped by the declarations of his mortgagor in their deed to claim under his mortgage.</p> <p>To permit him to disturb a title thus acquired, would be a fraud upon the purchaser.</p>

Replevin for four bales of hops. It was agreed in this case that the defendant was a deputy sheriff and that the hops were attached by him as the property of one Amos Damon on a writ, Isaiah Rich,jr. v. said Damon.

Assumpsit against the defendant as indorser of a bill of exchange, dated Oct. 5th, 1838, drawn by the defendant upon Benjamin Tainter, for $3000, payable to his own order at the Suffolk Bank, in Boston, in nine months from date, and indorsed by bim and by one Richard Treat. Evidence was offered that the bill was duly protested for non-payment, and due notice thereof was seasonably forwarded to the defendant.

This was an action to recover dower in a part of lot 36, in the first division, in Belfast, and was submitted to the Court on the following facts, by the agreement of parties. The demandant was the widow of John Durham, and was married to him in Dec. 1780. To prove the seizin of her husband, she produced an office copy of a warranty deed from Benjamin and Edward Stetson, of lot 36, to him, dated April 2, 1796, duly acknowledged and recorded.

<p>A father cannot by virtue of St. 1821, e. 118, § 17, maintain an action against a town for the loss of services of a minor son in his employ, or for expenses paid for medical attendance, occasioned by an injury sustained by such son in consequence of a defect in a highway for which the town was responsible, oyer which he was passing.</p> <p>The right, which a father has to the future earnings of his minor children, does not constitute present property, and is not embraced within the words “ other property ” in that statute.</p>

This was an action of covenant broken, and was founded on the breach of the covenants of seizin and good right to sell and convey lots No. 9, and 15, in Conway, N. H. From the report of Emery J. who tried the cause, the following testimony was introduced. The plaintiff produced the deed of the defendant to him of the above named lots dated April 23, 1827.

Assumpsit for breach of a promise of marriage. The plaintiff offered the deposition of Comfort Chase.

Covenant broken, for breach of the covenant of seizin in a deed of warranty from the defendant to the plaintiff, dated August 3d, 1835. In this deed many lots of land were conveyed, and several in Corinth were described. To prove the breach of the covenant declared on, the plaintiff read a deed of warranty from John Peck to Benjamin Joy, conveying the town of Corinth, with certain reservations, dated July 27th, 1799.

The suit was against the defendants as indorsers of a promissory note, given by William Smith to the defendants, or order, and by them indorsed, bearing date May 4, 1835, and payable in two years with interest annually. The note was left, before it became payable, at a bank in Bangor, where the defendants resided, for collection.

<p>Where property has been attached, and a receipt therefor has been given to> the attaching officer by the defendant and another, whereby they promise to pay a sum of money, or safely to keep the property free of expense to the officer, and on demand to re-deliver the same to him, or his successor ins office, — and if no demand is made, that they will, within thirty days from the rendition of judgment in the suit, re-deliver the property at a place named, and notify the officer of the delivery, — such contract is not illegal.</p> <p>To maintain: an action (on the contract after the expiration of the thirty days,, it is not necessary for the officer to prove a demand of the property, nor notice to the receipters of the time when judgment was rendered.</p> <p>But the receipters are not to be held liable for the value of a horse, part of the property, which died before the time limited for the delivery, without fault on their part.</p>

Bill in equity, seeking for a decree establishing bis right to redeem a mortgage, heard oh bill, answer, and proof.

Assumpsit on several notes of hand, amounting in the whole to $5500, all given in 1835, the actiou having been commenced Jan. 27, 1837.

<p>In the commencement of real actions, the form of process may be a writ of attachment, or an original summons, at the election of the “demandant.</p>

<p>The demandant in a writ of entry must recover upon the strength of his own title, and is bound to prove the seizin upon which be counts. And upon this point, it is competent for the tenant to adduce rebutting proof, whether he shows any title of his own or not.</p> <p>Where in the deed under which the demandant claims, certain tracts of land, the exact location and limits of which are not there defined, are excepted from the operation of that conveyance, such deed is not sufficient evidence of seizin of any particular portion of the township in the grantee.</p> <p>Unless it appears, in such case, that the tract of land demanded is not within the exceptions, the demandant cannot recover.</p> <p>A deed from the samo grantor, made at the same time, to another grantee, and referred to in the deed to the demandant, of a part of the land excepted, is competent evidence for the tenant, to show the location of the excepted portions.</p> <p>^The lots of actual settlers prior to 1797, upon the townships hack of Bangor and Hampden, numbered two in the first range, and two in the second range of townships, did not pass to Henry Knox and wife by the conveyance to them of those townships from the Commonwealth of Massachusetts, whether the settlers’ lands have been confirmed to them by the Commonwealth or not.</p> <p>Where exceptions or reservations, in a deed conveying lands, depend upon a plan, the actual survey and location upon the face of the earth are to determine their bound.</p>

<p>On the trial of this action of replevin, before Emery J., the counsel for the defendant requested the Judge to instruct the jury on certain points of law. The requests made, pertinent to the grounds of decision, are stated in the opinion of this Court; as are also the facts, appearing in the report of the case. On the subject of confusion of goods, the Judge instructed the jury, that merely taking the mill logs and fraudulently mixing them with the defendant’s logs, would not constitute confusion of goods. But that if from the evidence, they believed that the defendant had fraudulently taken the plaintiffs’ logs of the marks in proof, and had fraudulently manufactured them into boards, and fraudulently intermixed those boards in a pthe of his own, so that they could not be distinguished, with the fraudulent intent of depriving the plaintiffs of their property, the jury might find a verdict for the plaintiffs for the boards in the raft in question ; provided they were satisfied, that any of the boards in the raft were by the defendant so fraudulently manufactured from the plaintiffs’ logs, and by the defendant fraudulently intermixed with the defendant’s boards, with the intent of depriving the plaintiffs of their property. The verdict for the plaintiffs was to be set aside, if the instructions requested ought to have been given ; or if those given were erroneous.</p> <p>This case was argued June 29-, 1840, and the opinion of the Court, Whitman C. J. and Shepley and Tenney, Justices, was delivered July 2, 1842.</p> <p>In his remarks as to what constituted a confusion of goods, he cited 2 Kent’s Com. 360 to 365 ; and Betts v. Lee, 5 Johns. 349. To show that it was necessary to describe the property in a writ of replevin as it then was, he cited 2 Saund. 74, note ; Oliver’s Precedents, Replevin.</p> <p>and cited 2 Rawle, 423; 6 Johns. 168; 7 Cowen, 95; Ryder v. Hathaway, 21 Pick. 298; 13 Wend. 296; 2 Johns. Ch. R. 62; 15 Serg. & R, 9.</p>

<p>Ware and seven others petitioned to this Court, and represented that they were owners in common and undivided, with persons unknown to them, of seven twenty-fourths of one township, and of forty-nine one hundred and ninety-second parts of another; and prayed that the portions claimed by them in those townships might be severed from the other owners, and be set off to them, that they might hold those portions “ in common and undivided with themselves.”</p> <p>After the publication of a notice in the newspaper published by the printer for the State, and no persons appearing to object, partition was ordered, and commissioners were appointed to make it. They returned a report of their proceedings at the October Term of this Court, 1839, when Hunnewell and three others, being part owners of the same townships, appeared and objected to the acceptance of the report, assigning fifteen causes for its rejection.</p> <p>The eleventh was, that the commissioners did not give due notice to all concerned, that were known and within the State, before partition was made, that they might be present at the time of making the same.</p> <p>These objections were overruled by Emery J. then holding the Court, and the report was accepted. To this the respondents filed exceptions.</p> <p>The portions of the commission and return of the commissioners, material to this objection, are extracted in the opinion of the Court. As no opinion was given touching the other objections, it becomes unnecessary to notice them.</p> <p>objected, that the provisions of the Statute of 1821, c. 37, <§> 7, had not been complied with, requiring that “ due notice shall be given by the committee to all concerned; that are known and within the State, before such partition be made, that they may be present, if they see meet, at the time of making the same.”’ He contended, that if the mode of giving notice was proper, that sufficient time had not been given. Much less time was allowed to make preparation and go into the wilderness, than the law requires to be given to attend to the taking of a deposition. But seven days were given for the letters to go two hundred mthes, and for the persons interested to prepare themselves and travel that distance.</p> <p>But the mode of giving notice was, in itself, wrong. The notice should have been served by an officer. There is far less reason for' sending by mail, in this case, than for sending a notice to overseers of the poor. And nothing but the special act of the legislature could make that legal. Groton v. Lancaster, 16 Mass. R. 110.</p> <p>The neglect to give due notice is fatal to the proceedings. Ashley v. Brightman, 21 Pick; 285.</p> <p>contended that here was sufficient notice, -both as to mode and time. The statute does not prescribe any mode of giving notice, and it is left entirely to the discretion of the commissioners. They are made, by statute, the judges of the reasonableness of the notice, and their decision is conclusive.</p>

Assumpsit on an order of which the following is a copy:—. “ Argyle, Oct. 14, 1835. To Nathaniel Danforth, Jr. Treasurer of the plantation of Argyle.

<p>The public seal of a State, affixed to the exemplification of a law, provea itself. It is a matter of notoriety, and will be taken notice of as a part of the law of nations acknowledged by all.</p>

Trespass against Carr, as late sheriff of the county, for the acts of two of his deputies ; the one of J. Leavitt in s At the trial, before Emery J. the plaintiffs introduced a writ in favor of the Lafayette Bank, the party in interest in the defence, dated June 20, 1838, returnable to the next term of the S. J. Court for this county, against E. T. Coolidge and C. H. Hammond..

Bill in equity. The plaintiff claimed title to a tract of land by virtue of a levy thereon as the property of B, Garland, made July 2d, 1836, on an execution in his favor against Garland, the same having been attached on Jan. 26, 1836, and the levy having been made seasonably to preserve the attachment.

Exceptions from the Eastern District Court, Chandler J. presiding. Assumpsit to recover fifty dollars for so much money had and received. The exceptions state, that at the Oct. Term of that Court, 1838, this entry was made by the clerk on his docket under the action, at the verbal request of the defendant’s attorney. “ 1 day.

Exceptions from the Eastern District Court, Allen J. presiding. The writ was dated Nov. 27, 1837. The action was assumpsit upon an order of which a copy follows: — “ Sleeper & Clark. Please to pay William Head the sum of thirty-thee dollars, seventy-six cents, when you receive your payments from A. Woodman on his house, for value received. August 1, 1836. James Proctor.”. Upon it was written, “ Accepted to be paid as here stated.

Exceptions from the District Court for the Eastern District, Allen J. presiding. Trover for a yoke of oxen. The writ was dated May 29, 1838. The plaintiff, to prove the property of the oxen to be in him, introduced a paper, of which a copy follows : — “Orono, Jan. 5, 1836. Received of Eliphalet Perkins, Jr. four oxen, which I agree to return to him in good order on the first day of July next, with usual rent, or pay him ninety-five dollars, with interest from date. Wm.

Exceptions from the Eastern District Court, Allen J. presiding. Assumpsit upon a note, of which a copy follows; — “ Monroe, Nov. 2, 1836.

<p>Assumpsit on the money counts. The plaintiff, defendant, and one Jordan, gave thee notes of hand to John Black, dated Nov. 13, 1833, for $1198,61 each. These notes were to be equally paid by each of the thee, having been given for a bond for land to be conveyed to the thee in equal shares on payment of the notes. The plaintiff sold to Jordan, they agreeing in writing that Jordan should pay the amount of Goodall’s liability to Black, and that it should be accounted for and allowed by the plaintiff to Jordan. Jordan afterwards purchased Wentworth’s share of the bond, but did not agree to pay his share of the notes. He then sold the bond to Dwinel, taking his obligation to pay the notes to Black. Dwinel paid the notes to Black for the benefit of Jordan. Jordan claimed of the plaintiff one half of the amount paid to Black, to which the plaintiff at first objected, but it was allowed and paid in their settlement. One sixth of the thee notes then amounted to f700.</p> <p>If the action could be maintained, a default was to be entered, and if not, a nonsuit.</p> <p>said that the case was, that the plaintiff and Jordan paid equally, each of his own funds, the defendant’s share of the thee notes, to the payment of which they were all equally liable, as sureties for each other. The notes had become due before the payment, and no benefit could be derived from the bond until payment of the notes. The plaintiff therefore can recover of the defendant the amount thus paid as his surety. And the action is rightly brought, as no joint action could be maintained by Goodall and Jordan, for the payment was not made jointly, or from joint funds. It is wholly unnecessary to show the inability of a principal to pay; but here the defendant was himself the principal. Odlin v. Greenleaf, 3 N. H. R. 70; 8 Johns. R. 249; 14 .Pick. 285 2 B. & P. 268, 270; 3 Car. & P. 467; 2 Esp. R. 478 ; 1 Pother, § 430 ; 8 Cowen, 168.-</p> <p>contended, that Jordan was liable under his contract with the plaintiff to pay only his third. Such was the construction put upon it by the plaintiff himself, and it is the true one. There is no evidence of the inability of the defendant to pay. Jordan paid the defendant’s third, and he alone can recover it. 2 B. & P. 268, 270, cited for the plaintiff; Saund. PI. & Ev. 679; 13 Petersd. Ab. 779, note.</p> <p>But if the plaintiff has any claim, it is a joint one with Jordan. If the latter paid for the plaintiff, as well as for himself, it can furnish only the foundation for a joint action. 5 East, 225.</p>

<p>Exceptions from the Eastern District Court, Allen J. presiding.</p> <p>Assumpsit upon a contract in the following terms. “ Dutton, Oct. 3, 1836. For value received we jointly and severally agree to pay Amasa Howard, or order, five hundred bushels of good hard wood coal, to be delivered at his shop in Bangor, on or before the first day of January next.</p> <p>“ Allen Miner,</p> <p>“ Lyman Miner,</p> <p>“ David P. Clark.”</p> <p>The declaration alleged, that when - the note became due, the plaintiff was at his shop in Bangor, ready to have received the coal, and also at any day previous to that time. The plaintiff offered no evidence in support of this allegation; but after proving and 'giving the note for coal in evidence, he rested.</p> <p>The defendant- then proved, that sometime in May, prior to the giving of the note, the shop formerly occupied by the plaintiff was torn down, and that from that time until after the commencement of this suit, the plaintiff had no shop in Bangor, but had left the State and resided somewhere in New Hampshire ; that before and at the time the note became due, the defendant, Allen Miner, had in Dutton a large quantity of coal, estimated at 3500 bushels, in a condition to be delivered; that before the note became due, he called at the shop of one Collomy in Bangor-, and inquired for the plaintiff and the note, and requested Collomy to procure the note, who promised so to do, but could not find it; that A. Miner delivered at Collomy’s shop 200 bushels of coal to be paid on the note, if it could be procured, but this coal was afterwards accounted for to Miner by Collomy; and that he lost a large quantity of coal by “ its being out,” exceeding in value the amount of the note in suit.</p> <p>The plaintiff in interest called one Ford Whitman, who testified, that about the time the note became due it was left in his hands with other papers by the plaintiff; that he made an arrangement with one Egery, to whom the plaintiff was indebted, to take the coal in payment of the note on the plaintiff’s account; that he, the witness, gave no notice to the defendants, and did not demand payment of them. Egery testified to the arrangement made by Whitman with him ; that he was ready at that time to have received some four or five hundred bushels of good hard wood coal on account of the plaintiff who was indebted to him ; but that he never had the note in his possession, never demanded the payment of it, and never gave any notice to the defendants. He said however, that one Fuller did deliver a load of coal to him for Miner, which he credited to the plaintiff; that subsequently another1 load was brought in the same way, which he refused to accept, because it was not merchantable; and that subsequently he paid Miner for the load of coal which had been delivered.</p> <p>The defendants’ counsel requested the Court to instruct the jury, that the plaintiff could not recover, unless he proved that he was at his shop at the time and place of payment ready to receive the coal, as he alleged in his declaration; that if on the day of the maturity of the note, the plaintiff was not in Bangor, and had no shop there, that he cannot recover in this action; that, if the plaintiff had no shop nor residence here, and the defendants used due diligence in seeking for his residence, the action cannot be maintained, unless at some time before the bringing of the suit, the plaintiff had made a special demand and appointed a place in Bangor where the articles could ho delivered ; that if the plaintiff had removed from the State, it was not the duty of the defendants to seek him at such residence, to ascertain where the coal could be delivered in Bangor. The Judge presiding at the trial declined to give such instructions; but did instruct, the jury, that if the plaintiff had no shop in Bangor at the time the contract was entered into, nor since, that it is to be considered as though no place of delivery in Bangor had been mentioned therein; that when no place for the delivery of specific articles is designated by the parties, that it is the duty of the promisor to ascertain from the promisee the place at which the delivery shall be made ; and that the removal of the plaintiff from this State to the State of New Hampshire, between the time of the making and the maturity of the contract, did not absolve the defendants from their duty to ascertain from, the plaintiff what place in Bangor he would appoint for the delivery of the coal on the day of payment.</p> <p>The verdict having been returned for the plaintiff, the defendants filed exceptions.</p> <p>1. It was a part of the contract, that the plaintiff had a shop, or would have one, at Bangor, at the time of the maturity of the note. This was an important stipulation-, from which neither could recede. By it, the defendants were absolved from, the obligation of seeking the creditor, and asking him to appoint a place. -</p> <p>2. The plaintiff having fathed on his part, not having fixed the contract place of payment, through his fault it Was impossible for the defendants to make the tender, and consequently they .are absolved from doing it. Freeman v. Buce, 4 Mass. R. 176; 1 Ld. Raym. 687 ; Chipman on Con. 211 ; 1 D. & E. 645;' Borden v. Borden, 5 Mass. R. 74; 5 B. &. C. 628.</p> <p>3. The ruling of the Court, that if the plaintiff had no shop in Bangor at the time the contract was entered into, nor since, is to be construed as though no place of delivery had been mentioned, was erroneous. It de facto authorizes the plaintiff to erase “ at his shop in Bangor,” and gives him all the legal benefit of such erasure. And yet such erasure would have been a material alteration of the note, and would have avoided it. Chitty on Con. 204; 3 Taunt. 329; 1 M. &’S. 735; 19 Johns. R. 391; Farmer v. Rand, 2 Shepl. 225. .</p> <p>4. As a place was fixed in the contract, if none such existed, it was the duty of the plaintiff to designate such place and notify the defendants of such designation.</p> <p>5. The Judge erred in saying that the defendants were obliged to follow the plaintiff to New Hampshire, or wherever he might be, to ascertain what place he would designate as the place of payment. Ohio Cond. Rep. 591.</p> <p>6. The plaintiff alleged in his declaration that he was ready to receive the coal at the time and place mentioned in the note, to wit, at his shop, in Bangor. The facts thus alleged are material, and must be proved. 2 B. & B. 165; 11 Wheat. 171; 1 Pet. 116, 604 ; 2 Pet. 543 ; 12 Pick. 132; 4 Verm. R. 313.</p> <p>The first instruction requested was properly witheld, because such averments and proofs are unnecessary. Bixby v. Whitney, 5 Greenl. 192; Bacon v. Dyer, 3 Fairf. 19. When such averments are made, no proof need be offered to support them, nor need they be stricken out. Remick v. O’Kyle, 3 Fairf. 340. 1</p> <p>The other instructions requested were properly witheld, because they were indefinite, unintelligible, hypothetical, and contrary to law. Hypothetical instructions need not be given. 2 Fairf. 350; 1 Fairf. 224. In showing that the instructions given were correct, it will appear that those requested are contrary to law.</p> <p>The law in regard to contracts of this description was correctly laid down by the District Judge. Co. Lit. 210, (b) ; 4 Cowen, 452; 7 Conn. IL 110; 5 Greenl. 192. The promisor was not absolved from his obligation on account of the foreign domicil of the promisee. 5 Greenl. 192.</p> <p>If the contract fixes a place for the delivery of the coal, a tender should have been made there, and this was not done. If it does not, then the law was correctly stated to the jury by the Judge.</p> <p>In cases of this kind, where promisors rely upon a tender, or upon any excuse for non-payment, they must clearly show, that they have done all in their power to perform. 1 Ld. Raym. 687 ; Chipm. on Con. 211 ; Wyman v. Winslow, 2 Fairf. 398. Ability to perform is no defence. The defendants should have made such designation of the coal to be delivered, such separation from the mass of what was intended to be delivered in payment, as would transfer the property therein to the promisee, and enable him to pursue the property itself. Brayton’s R. 223 ; 4 Cowen, 452; 7 Conn. R. 110; 5 Greenl. 192 ; 1 Root, 55 ; ib. 443. They should not only have done this, but they should have had the coal in Bangor ready for delivery on the day of payment. It was the duty of the defendants to have made diligent inquiry for the place of residence of the plaintiff. 4 Cowen, 452; Chipm. on Con. 26, 28.</p> <p>Where justice is done by a verdict, the Court will not order a new trial for errors in the instruction to the jury. Kelly v. Merrill, 14 Maine R. 228 ; Farrar v. Merrill, 1 Greenl. 17. A new trial will not be granted to let in new cumulative evidence to points taken at the trial. 1 Sumn. 482; 8 Johns. 84 ; 15 Johns. 210.</p>

Exceptions from the Eastern District Court, Chandler J. presiding. Assumpsit for money had and received, wherein the plaintiff claimed to recover the proceeds' of the sale of a quantity of wood by the defendant, belonging to the plaintiff. The writ was dated Sept. 30, 1839. In the winter of 1838, the defendant and Daniel Bridges made an arrangement whereby Bridges was to cut and haul to the wharf from land belonging to Brown a quantity of wood. This was done.

Exceptions from the Eastern District Court, Chandler J. presiding. Assumpsit upon a promissory note, dated July 9, 1836, payable to the plaintiff, and alleged to have been made by the defendants. Their signatures were denied, and one Abner Lee, who appeared on the note to have been a subscribing witness thereto, was called by the plaintiff.

<p>From a statement of facts agreed by the parties, it appeared that the action was brought to recover for taxes paid, and for the support of one pauper whose settlement was admitted to be in Seaville. For these sums, amounting to 80,24, the defendants offer to be defaulted, The plaintiffs also claimed to recover a further sum for the support of Elias Bartlett and his wife, alleged to have their legal settlement in Seaville; and if that was their place of settlement, it was agreed that the plaintiffs should also recover the amount charged for their support.</p> <p>Elias Bartlett and wife lived in that part of Mount Desert which is now Seaville, for twenty-five years or more preceding 1826 or 1827, at which time they became paupers, and were removed as such to the part of the town which is now Mount Desert, and have been supported there by the town of Mount Desert ever since,</p> <p>In 1838, a part of Mount Desert was incorporated into a new town by the name of Seaville, the act of incorporation containing no provisions in respect to paupers, and leaving the rights of the parties as they stand by the general laws of the State. At the time the act passed and went into effect, Bartlett and wife were supported as paupers by the town, in that part of it which still remains Mount Desert. Immediately preceding the incorporation of Seaville, Bartlett and wife had their legal settlement in the town of Mount Desert, which settlement was acquired in that part of Mount Desert which was incorporated into the town of Seaville, they having ever resided there until they were removed as paupers in 1826 or 1827, to that part which is now Mount Desert, and where they have ever since been 'supported as paupeVs.</p> <p>contended that by the provisions of the St. 1821, c. 122, $ 2, sixth mode, the legal settlement of Bartlett and wife was in Seaville. As there were no stipulations respecting the support of paupers in the act of incorporation, the general laws must govern. Great Barrington v. Lancaster, 14 Mass. R. 253. The incorporation of a part of Mount Desert into a new town was a division of the town. As the paupers had gained a settlement on the territory now. Seaville, and were paupers at the time of their incorporation, and their residence there was involuntary, it is to be considered as being where their legal settlement was. Southbridge v. Charlton, 15 Mass. R. 248 ; Hallowell v. Gardiner, 1 Greenl. 93; Milo v. Kilmarnock, 2 Fairf. 455. Being paupers, they gained no settlement by the act of incorporation different from that originally acquired in Seaville. East Sudbury v. Waltham, 13 Mass. R. 460. The incorporation of the town fixes there the settlement acquired in the new town, whether then within it or not. St. George v. Beer Isle, 3 Greenl. 390; Groton v. Shirley, 7 Mass. R. 156. The term all persons, in the statute, is limited to those who are capable of gaining a settlement in their own right. It has been so decided in regard to the fifil mode, and there is the same reason with respect to the sixth. Hallowell v, Gardiner, 1 Greenl. 93; Milo v. Kilmarnock, 2 Fairf. 455. It can make no difference, whether the paupers were supported as such in one part of the town or another. They had no residence of their own at the time of the incorporation, and should be considered as if out of town, in which case it is clear that the paupers belong to Seaville. Or their home must be still in the last place where they resided voluntarily, and acquired their settlement, acting for themselves, which was in Seaville.</p> <p>said that pauper laws were entirely arbitrary, and the only inquiry was, to which town, by the fair construction of the law, the paupers belonged. The' defendants had no part of the property of the town,’ and there is no equity in favor of the plaintiffs beyond what exists in favor of the defendants. The paupers had their settlement in Mount Desert, and there it must remain, unless the plaintiffs show, that it was transferred to Seaville by the act incorporating that town. Seaville had no existence as a town prior to 1838, and of course was under no liabilities until then. No person within the town gained a settlement in Seaville by reason of its incorporation, unless he was in the new town at the time. Hollowed v. Bowdoin'ham, 1 Greeul. 129; Sutton v. Dana, 4 Pick. 117; Fitchburg v. Westminster, 1 Rick. 144. It makes no difference in which part of the town the settlement was gained. It is to be determined entirely by ascertaining in which he dwelt at the time the act was passed. They were already paupers of Mount Desert at the time of the division of the town, and not living in Seaville, but in Mount Desert, the settlement was not changed.</p>

Assumpsit upon a promissory note of the defendant to the plaintiffs for 1201,50, dated April 19, 1826, payable in four months. The statute of limitations was pleaded and relied upon. There were three indorsements on the note amounting in all to $1106,50, the last of which was dated Sept. 7, 1831. It did not appear in whose handwriting the indorsements were made. The action was commenced May 1, 1835.

Assumpsit, on an account annexed, for labor in logging in the woods, and getting the logs to the mills. At the trial before Emery J. the plaintiff produced, with other evidence, the deposition of one Eurlong, whose testimony is thus stated in the report of the case: — “He testified that Waite had employed him to river drive in the same crew with the plaintiff at $2,00 per day.

<p>Case for an injury to the fishing and water privtheges of the plaintiff’s land in Cutler, fronting upon tide water of Little River, by a dam erected by the defendants obstructing the river. In one count, the plain tiff alleged that the river was an arm of the sea, navigable, and a public highway. In the other, he claimed a prescriptive right to pass to and from the sea to his land unobstructed, and alleged a free enjoyment of this right, until the milldam was erected by the defendants. The defendants, with the general issue, alleged by brief statement, that they had good right to erect the' dam by force of an act of the legislature of Maine, passed March 16, 1836, entitled “ An act to incorporate the Cutler Milldam Corporation.” Prom the testimony given at the trial, before Emery J. which is spread at full length upon the report, it seems that the plaintiff proved title in himself to the land described in the declaration ; that a dam was built by the defendants on land of which they had a deed, across where the tide ebbs and flows, and across the channel at the head of .Little River harbor, and that they had four saw mills, and several lath machines carried by means of a head of water raised thereby; that there was a place on the plaintiff’s land to build .a wharf; and that before the building of the dam fishermen used sometimes to dig clams for bait on the flats opposite the plaintiff’s land. The plaintiff introduced evidence tending to show that some damage was occasioned to the plaintiff by the raising of the water higher upon the beach by the defendants’ dam, although no part of his land was flowed. The defendants offered evidence tending to show, that the plaintiff’s property was rendered more valuable by the building of the dam, to the admission of which the plaintiff objected, but it was admitted.</p> <p>The Judge instructed the jury, that if they found the plaintiff had sustained damage by reason of the dam, their verdict should be for the plaintiff for such damages as they should find he had sustained above the benefit extended to him by reason of the defendants’ dam and mills. The jury found a verdict for the plaintiff, assessing the damages at ten dollars above the benefits derived from the dam and mills; and also, under the direction of the Court to find on the subject, they found that the dam was erected across the head of Little River harbor. The verdict was to stand, be amended, or set aside, as in the opinion of the Court the law requires.</p> <p>contended that no action could be maintained upon the facts appearing in this case.</p> <p>To show that the act was constitutional, he cited 10 Mass. R. 70; 3 Mass. R. 352; 1 Pick. 180; Angelí on Tide Waters, 48, 107 ; 7 Pick. 344; 12 Pick. 476; 4 Pick. 460; 15 Wend. 113 ; 1 Penn. R. 482; 16 Pick. 101 ; 7 Greenl. 292.</p> <p>The defendants were in possession, and the validity of their grant will be presumed until the contrary be shown. Angelí on Tide Waters, 146; 2 Doug, 441; 6 Pick. 94; 16 Pick. 87.</p> <p>No portion of the land of the plaintiff has been touched by the acts of the defendants. They have kept entirely within their act of incorporation. The legislature have power to grant away the right of the public, and no action lies for consequential damage to an individual occasioned thereby. 4 Pick. 460; 15 Wend. 113; 7 Greenl. 273 ; 1 Pick. 430; 7 Pick. 472; 12 Mass. R. 220; 17 Johns. 100.</p> <p>But if the plaintiff is entitled to damages, he has mistaken the remedy. He should have proceeded under the statute of flowing. 11 Mass. R. 364 ; 1 Pick. 430.</p> <p>said the main question was, whether the action was maintainable. The jury have found, that the plaintiff has sustained damages by the acts of the defendants above any possible advantages derived. The defendants attempt to justify under their act of incorporation. But this affords them no protection.</p> <p>1. Because the dam is not erected in accordance with its provisions. The charter only authorizes them to erect it on their own land. It is not erected on their own land. The expression across the head of Little River harbor, is indefinite, and is limited by their own land. After purchasing the land of the proprietors, they should have erected their dam within low water mark, and not across the channel, where the land belonged to the public.</p> <p>2. But if the dam had been erected in accordance with the act, the utmost that can be deduced in favor of the defendants from it, is merely a protection against an indictment for a nuisance, leaving those who are injured by the dam to their remedy by action. 5 Cowen, 165. A private act for the benefit of a particular corporation, is never to be so construed as to destroy the rights of others, unless such construction results from express words, or necessary implication. 4 Mass. R. 145. An act authorizing an injury, without just compensation to the citizens injured by it, is void. 1 Fairf. 447.</p> <p>3. This is not a case coming within the statute regulating mills. 12 Pick. 68; 2 Shepl. 473.</p> <p>4. This is a public highway, and an obstruction of the right of way of an individual is the subject of damages. 8 Cowen, 159. This, however, is not an injury to the public, but to a few individuals. Where a nuisance occasions special damage to any particular person, he may recover damages, although others may also be injured. 7 Cowen, 609.</p>

<p>Although the general presumption of law is, that when the plaintiff, sueing as indorsee, produces at the trial the bill indorsed, that he became the holder before it fell due ; still where the defendant shows that the indorser was in possesvsion of the bill, and claiming to own it, before and until after it became due and was protested, the presumption is so rebutted, that the admissions of the indorser are competent evidence.</p> <p>Where an original contract is proved to have been last seen in the hands of the party in interest in the suit, although not a party to the record, and notice to him to produce it has been given, a copy is admissible in evidence. Where a contract in relation to land is explicit in its terms, and gives no authority to cut timber thereon, testimony to show that the owner had permitted others under similar contracts to cut timber without considering them as trespassers, is inadmissible to prove a license from the owner to cut timber in the case on trial.</p> <p>The defence of want of consideration, is established by proof, that the bill was accepted in part payment of the acceptor's own contract as surety, which was without consideration to the surety or to the principal.</p>

Bill in equity, heard on bill, answer, and proof. The facts are stated in substance in the opinion of the Court. said the mistake, set forth in the bill was admitted in the answer; and the defence sets up an alleged injury to himself, to which the plaintiff was neither party nor privy, to justify an admitted mistake and wrong to the plaintiff. The plaintiff is not bound to redress the injuries inflicted upon the defendant by others.

Assumpsit on a promissory note, dated Sept. 7, 1837, payable in twelve mouths to “ T. Gilbert & Co.” or order, and signed by the defendant. The suit was in the names of Timothy Gilbert and Henry Safford, as plaintiffs, transacting business in the partnership name of T. Gilbert & Co.; and to prove that the plaintiffs composed that firm, they introduced the deposition of B. Williams, taken in 1339.

The question arose upon the disclosure of William Stetson, who had been summoned as the trustee of Lowe, the debtor. The answer was made in June, 1839. W. Stetson and his brother built a schooner of about ninety tons, and launched her in July, 1838. Lowe furnished materials for building the schooner, and was to have one eighth at twenty-eight dollars per ton towards payment for the materials furnished.

Assumpsit upon a receipt given by the defendants to the plaintiff, formerly a deputy sheriff, for property attached on a writ in favor of W. Todd, Jr. against Hill.

<p>Debt on a bond, dated April 18, 1837, given by the defendants to the plaintiff, to procure the liberation of Carlisle from arrest on an execution in favor of the plaintiff against Carlisle, issued on a judgment recovered at the March Term of the C. C. Pleas, 1834, for $36,73, damage, and $10,24, costs. That action was commenced in 1833. The debt on which the judgment was recovered was contracted in 1821. The condition of the bond, after reciting the execution, judgment, and arrest, was, — “ Now if the said James Carlisle shall in six months from the date of this bond cite the execution creditor before two Justices of the Peace, quorum unus, and submit himself to examination, and take the oath or affirmation prescribed bylaw for poor debtors, or pay the debt, interest, costs and fees arising on said execution, or deliver himself into the custody of the jather, within said time, then,” &c. The parties agreed, “ that Carlisle cited the attorneys of the creditor to hear his disclosure before fw'o justices of the peace and of the quorum, according to the provisions of the act for the relief of pool-debtors, passed March 4, 1835, except that prior to his citation he did not make application or complaint to the jather, as required by the act aforesaid, under which, and the supplementary act of April 2, 1836, the bond was given.” Within the six months, the oath prescribed in the act of 1836, was duly administered to Carlisle by two justices of the quorum. Although notified, the creditor w-as not present, personally or by attorney, at the examination and administering of the oath. It. was agreed that if the action could be maintained, judgment should be rendered for the debt, costs, interest, and officer’s fees, unless the Court should also be of opinion that the case fell within the provisions of the statute of Feb. 8, 1839, and that the act was constitutional and binding; in which ease, the Court were to assess the damages.</p> <p>contended that the condition of the bond had not been performed. The taking of the oath prescribed in the poor debtor act of 1836, was an act wholly inoperative. As both the cause of action arose, and judgment was rendered prior to the passing of the act of 1835, the oath to be taken was that prescribed by the act of 1822, c. 209. Gooch y. Stephenson, 3 Shep. 129; Hastings v. Lane, ib. 134. Taking the oath prescribed in the poor debtor act of 1836, was a void act, and the parties stand as they would have done if no attempt had been made to take any oath.</p> <p>The statute of 1839, c. 366, does not apply to or affect this suit. This is not within the cases enumerated by the statute. That furnishes a remedy merely where there was a failure by the debtor to apply to the jather, and have the application to the justices go from him. Here there was no oath taken. We. do not claim to recover on account of any error in the citation, but because nothing was done. The damages, therefore, should be the debt, costs, interest, and officer’s fees.</p> <p>conceded that the proceedings should have been under the statute of 1822, but insisted that the case fell within the operation of the statute of 1839, c. 366. The words of that statute are as general as can be found. Merely nominal damages can be recovered.</p>

Exceptions from the Eastern District Court, Allen J. presiding. Assumpsit on a contract made at Augusta, of which a copy follows: .— “ Augusta, June 21, 1833. Due Mr. Cyrus Stockwell four thousand of pine merchantable clapboards, valued at ten dollars per thousand, freight thee dollars, to be delivered to James M. Earl at Providence, within five weeks.

Exceptions from the Eastern District Court, Allen J. presiding.

<p>Exceptions from the District Court, Allen J. presiding.</p> <p>Scire facias against the defendant as indorser of a writ in favor of H. P. Hoyt, described as of Calais, against Wilson, in which action the present plaintiff, and then defendant, recovered judgment for costs, at the September Term of the C. C. Pleas, 1835. This writ of scire facias was sued out Feb. 19, 1838. The defendant for one plea, by brief statement, alleged, that no execution was duly and seasonably sued out, and seasonable and proper return thereof made of the avoidance, or inability, of Hoyt. On Sept. 30, 1835, Wilson sued out an execution against Hoyt, and afterwards in succession five other writs of execution, but no one of them was given to an officer, and of course no return was made. On June 27, 1837, the seventh execution was sued out and given to the sheriff of this county, who duly returned the same into the clerk’s office, with his return thereon, dated Sept. 19, 1837, wherein he stated that the execution was delivered to him July 29, 1837 ; that he had made diligent search for the property and body of Hoyt, and could find neither within his precinct; and that h.e returned the execution in no part satisfied.</p> <p>The defendant then moved for a nonsuit, because the plaintiff had himself shown a want of due diligence in obtaining payment of the execution of Hoyt. This motion was overruled by the Judge.</p> <p>The plaintiff offered evidence tending to show, that Hoyt had left Calais and the county of Washington, before the judgment was rendered, and could not be found until the execution Was in the hands of the officer. To this the defendant objected, but the testimony was admitted.</p> <p>The defendant introduced evidence tending to show that Hoyt, during the time, resided in another county within the State, and had property subject to be taken to satisfy the execution.</p> <p>The defendant requested the Judge to rule, that the plaintiff had not shown evidence of legal steps taken to charge the defendant as indorser of the writ, and to instruct the jury that the plaintiff had not shown reasonable diligence to recover, the costs against Hoyt, and that the delay in putting the execution into the hands of an officer, and procuring his return of the same, absolved the defendant from his liability.</p> <p>The Judge declined thus to instruct the jury, and did instruct them, that the plaintiff should use reasonable diligence to recover the costs against Hoyt, before he could have recourse to the indorser ; that if Hoyt was not in the county of Washington during the intervening period between the day of judgment and the seventh execution issued thereon, on which non est inventus was returned, this would be conclusive evidence of an avoidance within said county ; that if Hoyt was resident within this State, and that the plaintiff, by reasonable diligence, could have arrested him, and did not so arrest him, they should find a verdict for the defendant; and submitted the question to the jury, whether such reasonable diligence had been used.</p> <p>The verdict being for the plaintiff, the defendant filed exceptions to the rulings and instructions of the Judge.</p> <p>that the liability of the indorser of a writ is but collateral and conditional. The plaintiff must use due diligence to determine the avoidance or inability of the principal. Due diligence must be used to convert a conditional into an absolute liability. Reid v. Blarney, 2 Grcenl. 128; St. 1821, c. 59, § 8. ‘</p> <p>The case, Ruggles v. Ives, 6 Mass. R. 494, settles, — 1st, That the execution must be sued out within one year from the time of judgment, to charge the indorser. 2d, That it must appear from the officer's return, that the principal has avoided, or is unable to pay. 3d, That reasonable diligence to collect of the principal must be used, before resort can be had to the indorser.</p> <p>Miller v. Washburn, 11 Mass. R. 411, does not conflict with these principles, but merely settles, that after the indorser is fixed, the scire facias need not be sued out within the year.</p> <p>The return should be made upon the execution so sued out within the year. Merely taking out an execution, without putting it into the hands of an officer, is not using due diligence. There can be no necessity of taking out the execution, if it is to be kept in the desk of the attorney.</p> <p>And this is a question for the determination of the Court, and not for the jury. Atwood v. Clark, SGreenl. 249; Ellis v. Paige, 1 Pick. 43; 2 Stark. Ev. 255, and notes.</p> <p>By the St. 1821, c, 59, § 8, the indorser of a writ is made liable in case of the avoidance or of the inability of the plaintiff, to pay the costs. And in Harkness v. Farley, 2 Fairf. 491, it is held, that both need not concur. The plaintiff in this case claims to charge the defendant on the ground of avoidance only.</p> <p>The principal question is upon the competency of the evidence by which the plaintiff undertakes to support his action.</p> <p>The officer’s return on the execution was sufficient for that purpose. Ruggles v. Ives, 6 Mass. R. 494; Harkness v. Farley, 2 Fairf. 491. The statute is sthent as to the time of issuing or returning the execution for costs recovered, or in what manner avoidance or inability shall be proved. The return of the officer is conclusive evidence of the avoidance of Hoyt during the time to which it refers.</p> <p>But if the officer’s return is not enough to charge the defendant as indorser, it was competent fof the plaintiff, by parol evidence, to show that Hoyt had not been within the county of Washington between the day of the rendition of the judgment and the time of-issuing the last execution, Harkness v. .Farley, 2 Fairf. 491 ; Pollster v. Little, 6 Greenl. 350.</p> <p>The question whether reasonable diligence had been used, was put to the jury in a manner highly favorable to the defendant, and the jury found in favor of the plaintiff. I-f the plaintiff has used due diligence, the defendant is liable. Reggies v. Ives, before cited.</p>

<p>Where the plaintiff delivered hi¡s horse 1.o another to be kept, until anoto' given for the price became due or was previously paid, and before the time of payment the horse was sold to the defendant by the bathe without notice of the plaintiff’s claim, and the defendant, after having had notice of the plaintiff’s rights, continued to xtsc and claim the horse as his own after the time limited fertthe payment of the note had expired without payment; this amounts to a conversion, and the plaintiff may maintain trover without a demand of the horse.</p> <p>The neglect of a party to proceed against one who is known to hare taken and used his property unlawfully, does not deprive him of his right to do so, until the statute of limitation interposes.</p>

<p>If an administrator, under a license from Court to sell real estate for the payment of debts, sells and conveys land for an entire sum of money for the whole tract sold, exceeding in amount the sum he was authorized to raise, such sale is void.</p>

<p>In an action to recover a fine for neglect iu the performance of militia duty in a company of light infantry raised at largo by enlistment, whether the soldier was enlisted is a question of fact to be decided by the magistrate.</p> <p>The commission of the captain of a light infantry company raised at large by enlistment, is sufficient evidence of the organization of such company.</p> <p>Where a private of a company is duly warned to appear at a company training for the choice of an ensign, such private cannot excuse his neglect by proof, that no legal vacancy in that office had occurred.</p> <p>Where the testimony offered to prove a fact is not fioo from contradiction and doubt, it is the duty of the magistrate to decide upon it, and to give such weight to the testimony of each witness, and to the circumstances tending to corroborate or to invalidate it, as he judges to be justly duo to it. And if it does not appear, that he violated any rule of law, or that ho decided without any testimony to authorize the conclusion to which ho came, this Court will not revise and reverse his decision.</p> <p>It is not necessary to insert in, or annex to, the order to warn the company a list of the men to be warned. An order to the clerk, who keeps the records, to warn all the non-commissioned officers and privates enrolled in the company, is sufficient.</p> <p>The legal presumption is, that persons acting in an official capacity in the militia are properly authorized, and that their official signatures are genuine.</p> <p>If during the trial of an action for neglect in the performance of militia duty, one party calls upon the other to produce papers proved to be in his possession, and a reasonable time is offered to produce them, and they are not produced, parol evidence of their contents may be admitted by the magistrate. Rule 35 of this Court does not bind a magistrate to its observance.</p> <p>If the commanding officer of a light infantry company raised by enlistment, signs a notice of tthe enlistment of a private therein to the commanding officer of the local company in which the private resides, and it is proved that this notice has been delivered, there is no necessity for a written military order.</p>

<p>Error to reverse a judgment rendered before T. Jellison, a Justice of the Peace, on Nov. 2, 1839. The original action was brought by Flint, as clerk of a company of light infantry commanded by captain Glover, to recover of Lowell a fine for neglecting to perform bis duty as a private in that company at a regimental review and inspection. The then plaintiff claimed to recover a fine on the ground that Lowell had become a member of the light infantry company by due enlistment therein and legal notice thereof to the commanding officer of the local. company within which he resided. Lowell, among other grounds, contended that parol evidence was inadmissible to prove that the name “ W. W. Lowell,” on the company books was his name; and also objected that no legal notice of his enlistment was given to the commanding officer of the local company in which he lived, and in which he had been appointed cleric. In relation to the notice, the record is in these terms.</p> <p>“ To prove that the captain of the standing company of infantry was notified in writing within five days from the time of said enlistment, and also to give the date of said enlistment, the clerk was introduced, who stated that he had no doubt that he did notify the said commanding officer within five days, but could not swear positively that he did because he made no record of it, but he would not state said notice was in writing.”</p> <p>This evidence was objected to by the defendant ás insufficient and incompetent to prove any legal notice. The justice admitted the evidence as sufficient to prove such notice, and adjudged that the action was sustained.</p> <p>now plaintiff in error, contended that the evidence permitted by the justice to be introduced for the purpose, and which was held sufficient to prove notice, was in itself incompetent; and if admissible, wholly insufficient. It proved no notice in writing, which is expressly required by the statute, and is therefore inadmissible. All such notices, too, should be recorded on the company books, and such record is the best evidence. St. 1834, c. 121, <$> 12; Sawtell v. Davis, 5 Greenl. 438; Ellis v. Grant, 15 Maine R. 191; Abbott v. Crawford, 6 Greenl. 214.</p> <p>said that the law only required that a written notice of the enlistment should be given to the commander of the local company within five days. This may be proved to have been done by parol, as is the usual practice in proving written notices to. indorsers of notes. No record of the notice is usual or required by law. Whether the notice was proved or not, was a question for the determination of the justice. The testimony was competent; he held it to be sufficient; and his decision of the facts is conclusive.</p>

<p>Mem. — Shepley J. was employed in the trial of questions for the jury in the County of Washington, and did not attend during the arguments of the cases in this county, at this term, nor take any part in the decisions thereof.</p> <p>A contract, free from actual fraud, where the owner of a stock of goods mortgages them to secure the plaintiffs against certain liabilities on certain notes, assumed^ for him as his sureties, containing a stipulation that the mortgagor should retain the possession of the goods until default should be made in the payment of the notes, or some of them, and “should pay over and account for the proceeds of all sales of said goods to the mortgagees, to be applied in payment of said notes, or directly to apply said proceeds to the payment of said notes, at the discretion of the mortgagees,” is a lawful contract.</p> <p>All persons coming in under the mortgagor, stand by substitution in his place, and are equally affected by the contract, whether notified of its existence or not.</p> <p>The power of the mortgagor to make sale of the goods may be implied from his covenant to account to the mortgagees for the proceeds of the sales.</p> <p>If the mortgagor sell the goods, and with the proceeds thereof purchase other goods, these last represent the first, and are substituted for them, and are equally subject to the lien of the mortgagees thereon. So if the mortgagor exchange the goods mortgaged for other goods, and the mortgagees choose to ratify it, the goods received in exchange are equally subject to their lien.</p>

<p>Where a large number of persons, by an agreement in writing, associated, together to form a company for the establishment of a store to deal in English and West India goods, to be conducted under the direction of a board of managers, a paid of whose duty was “ to provide a store for the company,” the managers have power to purchase a store, and land whereon to place it, and to give the notes of the company to secure the payment of the consideration.</p> <p>And if the only grantees named in the deed are “ Whitney, Watson & Co.,” the name under which they conducted their business, Whitney and Watson being persons well known and members of the company; if the other persons embraced under the general term, company, could not take as grantees, Whitney and Watson could, and they would hold for themselves and those associated with them. This would be a sufficient consideration for the notes given for the purchase money.</p> <p>The persons liable to the payment of the notes, besides Whitney and Watson, are to be ascertained by proving who constituted the company at the time the notes were made, and embraced all who had then signed their agreement of association.</p> <p>As some of the persons sued had not joined the company at the time, they cannot be liolden as defendants. But under the St. 1835, o. 178, § 4, the plaintiff may amend by striking out their names, on payment of their costs, to be taxed severally, after issue has been joined, and the case has been opened for trial,</p> <p>If the acknowledgement of a deed be taken by a grantee and certified by him as a magistrate, it is hut a void acknowledgement, leaving the deed operative between the parties.</p>

The facts in this case are stated in the opinion of the Court. After the evidence had all been exhibited to the jury, the counsel for the defendant requested the Judge to instruct the jury: — 1.

<p>Writ of entry, demanding fifteen acres of land in Camden. To prove title in himself, the demandant introduced the following deeds. Abraham Jones to Benjamin Jones, of the fifteen acres demanded in this suit; Benjamin Jones to Abraham Jones, conveying back the same fifteen acres; Abraham Jones to Oliver C. Jones and Abraham Jones, Jr.; and Abraham Jones to Abraham Jones, Jr. Abraham Jones, Jr. was a son of Abraham Jones, Sen., and died unmarried and without issue before the death of his father. Polly Jones, administratrix of the estate of Abraham Jones, Sen., obtained license, and made sale of the real estate for the payment of debts, and made a deed thereof to the highest bidder, Abel Walker, whose title the demandant has. The widow of Benjamin Jones, Sen. made application to have her dower assigned, and before the assignment was made, partition was made of the land held by her late husband as a tenant in common. The substance of these deeds and also of the assignment of dower, and partition, is stated in the opinion of the Court. The tenant introduced no evidence of title in himself.</p> <p>Shepley J., presiding at the trial, instructed the jury, that the demandant bad by these deeds, and the proof, established a title in himself, unless they should find that Abraham Jones, Sen. was at the time of his death disseized, the defendant offering no evidence of title.</p> <p>If these instructions were erroneous, the verdict, which was for the demandant, was to be set aside.</p> <p>contended that the deed from the administratrix of Abraham Jones, Sen. to Walker, under whom the demandant claimed, was void for uncertainty, and that therefore nothing passed by it.</p> <p>But if any thing passed by it, it was the undivided share which was holden by the intestate, as tenant in common with O. C. Jones, of which the land now claimed is no part. The lot demanded is excluded by the description in the deed.</p> <p>By the terms of the original deed to B. Jones, he could make no conveyance, nor could his heirs, during the lifetime of his father, and therefore it came to those who were his heirs at law after his father’s decease, and of course, it was not subject to be sold to pay the debts of the father.</p> <p>and contended that one half of lot No. 8, one half of the whole farm, was conveyed by the deed of the administratrix to Walker. The whole of the real estate of the intestate was intended to be conveyed.</p> <p>It is the object of the law to uphold, rather then to defeat conveyances, though some portions of the description should be erroneous. Wing v. Bur gis, 13 Maine R. Ill; 4 Cruise’s Dig. 405 ; Bridge v. Wellington, 1 Mass. R. 227. And if there be any uncertainty or ambiguity as to that intention, the words of the deed shall be taken as the grantor’s words, and the deed is to be construed most strongly against him, and in favor of the grantee. Tufis v. Cutter, 3 Pick. 272; Hill. Abr. 335. The whole description should be taken together, in giving a construction to a deed. Vose v. Handy, 2 Greenl. 322; Worthington v. Hylyer, 4 Mass. R. 196. The word farm, when used in a deed, has a legal and technical meaning, and includes all the lands in any way connected, or at any time used therewith. Keith v. Reynolds, 3 Greenl. 393 ; Cate v. Thayer, ib. 71; Hill. Abr. 347. Where one who has held his farm by several deeds of separate parcels, made by the same grantor at different times, makes his own deed to a third person, using language sufficiently indicating the whole farm, and then adding that the premises are the same which he purchased by deed of a particular date, and referring to one only of his title deeds, the whole farm shall pass by his conveyance. Hrinkwater v. Sawyer, 7 Greenl. 366; Willard v. Moulton, 4 Greenl. 14 ; Child v. Fickett, ib. 471. The intestate in his lifetime had conveyed to his sons, Oliver C. and Abraham Jones, Jr. by two deeds, his whole farm ; and the demandant is entitled to recover one half of that farm.</p>

<p>Bill in equity, by John Hanly, executor of the will of Noah Sprague, deceased, and Danforth Sprague, Charles Sprague, and Joseph Sprague, minor children of said deceased, by said Hanly, their next friend and guardian, against Noah Sprague and John Davis. The hearing was on bill, answers, and proof. The bill alleged, that the estate of said deceased belonged to said minor children and the creditors of said deceased; that the deceased, in 1831, was seized of a farm called the Benzy farm, of the value of $425, and of another farm of the value of $600, both of which had been previously mortgaged by him to W. Battie, to secure the payment of the sum of $ 150,94; that the testator being unable without inconvenience to pay the debt to Battie, proposed to his son, Hiram Sprague, in 1833, that if he would pay the debt and discharge the mortgage, he should have the Benzy farm at $425, and should pay the difference to the testator, which proposition Hiram accepted; that afterwards Hiram found himself unable to comply with his agreement with his father, and proposed to his brother Noah, one of the defendants, “ that he should take the place of Hiram as to this contract, if his father should agree thereto ;” that the father did agree thereto; and that “ the defendant, Noah, assented thereto, and agreed with said testator, that he would fulfil all the stipulations contained in the agreement of the said Hiram, and among other things that he would pay off said ' mortgage to said Battie, and that he would take the Benzy farm at $425, and account to the testator for the balance, and that the residue of the real estate, with the buildings thereon, should belong to and be the property of the testator;” that Noah did pay the debt, being $150,94, and took an assignment of the mortgage to himself; that afterwards the equity of the testator to redeem the mortgage was sold on execution for the sum of $60, and redeemed by the defendant, Noah Sprague, at his father’s request, out of the balance due for the Benzy farm; that the defendant, Noah Sprague, in violation of his agreement, afterwards, in 1836, fraudulently assigned the mortgage and conveyed the whole of the estate to the defendant, Davis, he, the said Davis, then having full knowledge of all the facts and trusts, and the terms upon which the said Noah was to pay the mortgage, and paying no valuable consideration therefor, but merely giving his note for-$190, which was put into the hands of a brother-in-law of Davis, to be kept for him; and that both defendants refuse to convey to the plaintiffs, or to any of them, any part of the real estate.</p> <p>The substance of the answers and proof sufficiently appears in the opinion of the Court. The statute of frauds was not interposed as a defence by answer or plea.</p> <p>The deposition of Nancy Martin, widow of the testator, to whom a life estate had been given in the will, and who was originally a plaintiff, and whose name was struck out of the bill on her marriage with Martin, was offered in evidence by the plaintiffs, she, with her husband, having previously executed to her children, the minor plaintiffs, a release of all her interest in the estate, which had been accepted by their guardian. Hiram Sprague’s deposition was also offered by the plaintiffs, he having previously executed a similar release, which had been accepted by the guardian. Both these depositions were objected to by the defendants, on the ground that the deponents were interested.</p> <p>and cited Gardiner Bank v. Wheaton, S Greenl. 373; Hadden v. Spader, 20 Johns. 554; Spader v. Davis, 5 Johns. Ch. R. 280; Hendricks v. • Robinson, 2 Johns. Ch. R. 283; McDermutt v. Strong, 4 Johns. Ch. R. 687 ; 1 Mad. 213 ; 14 Johns. 493 ; 5 Mason, 144; 2 Johns. Ch. R. 35; 7 Johns. Ch. R. 557.</p> <p>and cited Schillinger v. McCann, 6 Greenl. 364; Elder v. Elder, 1 Fairf. 80.</p>

Debt on a poor debtor’s bond. Two justices of the quorum certified, that the said Turner presented himself, and we the said justices, having examined the notification and return thereon, and having found the same regular and in due form, have proceeded in the examination of said Turner in the way and manner by statute provided, and upon the whole examination, being satisfied that said Turner’s disclosure is true, and that he is entitled to the benefit of the act aforesaid,…

Exceptions from the Eastern District Court, Chandler. J. presiding. The parties agreed upon a statement of the facts. Assumpsit upon a note to John Gage or bearer, the writ bearing date Sept. 5, 1838. After the making of the note, John Gage died. After his death, the widow brought this action in her own name, declaring on it as bearer thereof.

<p>A school district meeting may be called legally by the selectmen of the town on the written application of thee or more qualified voters, who then resided within the district, although they are not described as such in the application.</p> <p>Whore the selectmen issue their warrant to one of the applicants, directing him to call a meeting “at the schoolhouse in said district,” and he returns on the warrant, that he had posted up notices for the purpose, “one at the schoolhouse and one at the grist mill, both in said district,” the return furnishes sufficient evidence, that the notices were posted, as to place, as the St. 1834, c. 129, § 11, requires, “on the district schoolhouse and one other public place within the limits of said district.”</p> <p>The notice is given a sufficient time before the meeting, if posted up on the sixteenth, when the meeting was to be on the twenty-fourth of the month.</p> <p>If a person be chosen as agent of a school district by the qualified voters thereof, assembled together, but not. at a district meeting legally called, such person is not agent of the district.</p>

<p>No person can maintain an action against a town for supplies furnished toa pauper, but the one who gave the notice to the overseers.</p> <p>If a notice has been given by one furnishing relief to a pauper, and supplies have been furnished by the overseers, believed by them to be sufficient, a new notice is essential to a recovery of the town for supplies furnished afterwards.</p> <p>There seems to he no limitation to the claim of an individual against a town for the support of a pauper, but that of the general statute, although there is a special one to an action by one town against another.</p>

<p>Exceptions from the Eastern District Court, Chandler J. presiding.</p> <p>Trover for a pair of oxen. The parties agreed upon a statement of tho facts.</p> <p>The plaintiff was owner of the oxen and leased them to William Barton and Levi Aunis; William Barton sold them to Joseph Barton, Joseph Barton to Justus flersey, Justus Hersey to the defendant', and the defendant to John Chapman. All these sales were made prior to the commencement of this action. William Barton had no authority to sell the oxen, and the plaintiff has never assented to that or any subsequent sale of them, and never parted with his property in them, unless by operation of law from the further facts to be stated.</p> <p>This suit was commenced April-5, 1838. The plaintiff brought an action of trover for the oxen against Chapman, who had purchased them of the defendant and then claimed to be the owner of them, and at the October Term of the Court of Common Pleas, 1837, recovered judgment against him for the value of the oxen. After the commencement of this suit, June 20, 1838, an execution was issued on that judgment, and delivered, to an officer for collection who returned it in no part satisfied, and the judgment has never been satisfied or discharged. The defendant commenced a suit against Joseph Barton to recover the money paid for the oxen by the defendant; then the defendant told Barton he would discharge .the suit, if he would settle with Chapman and pay him, and thereupon Barton did settle with Chapman, and the defendant discharged Barton. The suit against Barton was brought after the plaintiff had claimed the oxen, and after he had recovered judgment against Chapman. The demand on the defendant was made after his sale to Chapman.</p> <p>If the Court should be of opinion, that the plaintiff was not entitled to maintain his suit, he was to become nonsuit, but if entitled to recover, the defendant was to be defaulted.</p> <p>The district Judge decided, that the action was maintained; and, as the law then was, the case could not be carried to this Court by^appeal, the defendant filed exceptions.</p> <p>said that the question submitted in this case was, whether the plaintiff had lost his remedy by bringing an action of trover against another trespasser, and recovering judgment against him, without satisfaction, the trespasses being several and not done in concert. There is a decision in this State, 5 Greenl. 147, intimating that a judgment and execution issued thereon would be a bar. Here no execution had issued, when the suit was brought. This case does not therefore fall within that decision. The decision however was founded on an English decision, which has since been overruled. The weight of authority is decidedly in favor of the position, that a judgment for damages against one trespasser, without satisfaction, is no bar to a suit for a distinct trespass to the same property by another trespasser.</p> <p>Selling the oxen was a conversion, and no demand was necessary.</p> <p>contended that a judgment in trover, if execution be sued out thereon, though without satisfaction, is a bar to an action of trespass afterwards brought by the same plaintiff1 against another person for taking the same property. White v. Philbrick, 5.Greenl. 147, and cases cited in the opinion of the Court. 3 Stark. Ev. 1507.</p> <p>There was no tortious taking in this case, and the demand on the defendant and his refusal, were no evidence of a conversion, because the property was not then in his possession. 1 Camp. 439 ; 3 Stark. Ev. 3497.</p> <p>The case shows that the plaintiff leased the oxen to Barton and Annis, but does not say for what time. The oxen then were rightfully in their possession, and the plaintiff had no right to the possession of them until a demand. At the time the defendant sold them, the plaintiff had done no act which revested the possession in him, and the demand on the defendant after he sold them was a mere nullity. Vincent v. Cornel, 13 Pick. 294.</p>

Exceptions from the Eastern District Court, Chandler J. presiding. Assumpsit to recover damages for a breach of a parol contract to labor for the plaintiff.

<p>Exceptions from the Eastern District Court, Chandler J. presiding.</p> <p>Assumpsit upon a promissory noto given to William Starrett by Jolin Barber, Jr. as principal, and the other two defendants, Lothrop and Woodman, as sureties. The note was introduced in evidence, and the plaintiff there rested his case.</p> <p>The defendants then called a witness, who testified that after the commencement of this suit, on inquiry about the note, Starrett told him, that ho, Starrett, had not and never had any interest in the note, and that Aaron Davis was prosecuting this suit to recover the amount thereof, which Lad been loaned to Barber on the note; that Barber wished to obtain a loan of money, and for that purpose, the note in suit to Starrett, and another payable at a different time, were made, under tho expectation of receiving the money of him, but Starrett did not furnish it; that he afterwards applied to Davis, who loaned the money, and received the notes, and as security therefor a bill of sale made by Barber to him of a certain quantity of logs; that a controversy arose about the logs, and a suit was brought by Davis therefor, wherein he finally prevathed, and recovered a sum of money, but not to the amount of both notes, after deducting the expenses, but more than sufficient to pay either; that at the time the bill of sale was made, and the notes delivered over to Davis, it was agreed between him and Barber, that if he realized more from the notes and logs than the sum loaned, he should pay the balance to Barber; and that at the time of the trial of the action respecting the logs, Davis called Barber as a witness, and that on his being objected to as interested, the plaintiff, released Barber, and he was permitted to testify. The terms of this release do .not appear.</p> <p>The defendants contended, that as it appeared in evidence that William Starrett had not and never had any interest in the note in suit, the action could not be maintained in his name.</p> <p>Upon this point, the Judge instructed the jury, that if they were satisfied from the evidence that Starrett knew of and assented to the bringing of the action in his name, the action was maintainable, although he might not ever have had any interest in the note.</p> <p>The defendants then contended, that Barber could not bind the other defendants, excepting according to the tenor thereof, and therefore was not authorized to dispose of the note to any other person than Starrett, in the absence of any testimony showing the assent of the sureties to the transfer of the note to Davis.</p> <p>Upon this point, the jury were instructed, that if they were satisfied from the evidence, that it was the understanding between Barber and the sureties at the time of the making of the note, that it was to be thrown into the market, and used generally for the purpose of raising money, Barber had a right to dispose of it to whom he chose, or could procure the money from, and the sureties were bound by the transfer.</p> <p>The defendants farther contended, that inasmuch as Davis had received from the sale of the personal property more than sufficient to pay the amount of the notes, the defendants were entitled to have the same appropriated to the payment of the notes.</p> <p>Upon this point, the Judge instructed the jury, that as to the expense of recovering and taking care of the property to make it available for the purpose for which it was pledged, Davis was entitled to an indemnity from the property thus secured to him, and that the jury might cast interest on the sum loaned to the time of the first payment, deduct therefrom (principal and interest,) the amount paid, cast interest on the balance to the time of the next payment, which deduct from principal and interest added, and return a verdict for the balance, if any, they found to be due, after deducting the amount realized from the pledged property, less the expense incurred by Davis in taking care of and preserving the property.</p> <p>The verdict was for the plaintiff, and the defendants filed exceptions.</p> <p>admitted that the first objection was untenable.</p> <p>The second request for instructions should have been granted. Allen v. Ayers, 3 Pick. 298.</p> <p>But the Judge erred in declining to give the instruction requested on the third point, and in giving such as he did.</p> <p>The general rule of law is, that where the payment made is capable of different applications, the party who pays the money has the power to apply it as ho chooses ; but if he does not apply it, the party who receives it may make the application. 2 Pother on Obi. 45; 1 Wash. C. C. R. 133. This application may be made by the person paying at any time before the appropriation is made by the party receiving it. 7 Wheat. 20; 2 N. H. R. 196.</p> <p>The release to one discharges the whole. Walker v. McCulloch, 4 Greenl. 421.</p> <p>considered that the money was appropriated to the payment of one note by the plaintiff, and the balance only is claimed. The right to do this is admitted. The expenses of the suit were to be deducted on every principle of justice and equity.</p> <p>The release to Barber was a mere release of his liability on the bill of sale of the logs claimed in that suit, and was in no respect a release of his liability on the note. Bank of Chenango v. Hyde, 4 Cowen, 567.</p>

Exceptions from the Eastern District Court, Chandler J. presiding. Assumpsit upon an instrument made by the defendants in these terms: — ® “Frankfort, Dec. 25, 1837. “ For value received of Edwin Chick we the trustees of the M. E. Society, for building a parsonage house on Frankfort circuit, promise to pay him or order fifty-one dollars and seventy-seven cents and interest in one year from Henry S. Trevett, William Homes, Richard Trevett, } Trustees of said House.

<p>If, to authorize an arrest of the body under the poor debtor acts of 1835 and 183G, it be certified upon the writ dial the creditor made oatb, “that the debtor was about to depart and establish Ms residence beyond the limits of this Slate, with property or means more than sufficient'for his immediate,support,” it must be regarded as equivalent to an oath, that lie was to take with him such property or means, in the language of the poor debtor acts.</p> <p>If one of the conditions of a poor debtor’s bond bo, “ and further do and perform, all that is required in and by the acts in such case made and provided,” this imposes the condition that ho should abide the order of the justices before whom he should make his disclosure.</p> <p>Where the justices of the peace and of the quorum, before whom a debtor, having been arrested upon a writ, and having given bond, had made a disclosure after judgment was rendered in the suit, made their order on Jan. 4, 1839, that the debtor might go at large upon the bond until the creditor should make his election to levy his execution upon the body of the debtor, or upon the property disclosed; and where the creditor had within thirty days of that time given the execution to the same officer who had made the arrest, and the officer had made his return, dated Feb. 5,1839, thirty-two days after the order of the justices was made, “that he had notified the bail of the debtor upon the original writ to delioer up his body, the creditor having elected to take the same within thirty days next after Jam,, 4, 1839, but they have neglected so to do,” and that ho could find neither the property nor the body of the debtor within his precinct; in a suit upon the bond, it was held : •—•</p> <p>That if the creditor should within thirty days elect to take the body of the debtor, it should be forthcoming to be imprisoned :</p> <p>That it is fairly deducible from the statutes that the election to take the body should be made within thirty clays, although it may not be necessary to give notice to the sureties on the bond to produce the body of the principal within that time, if the execution remain in force :</p> <p>That such bond is subject to chancery :</p> <p>And that where no extenuating circumstances appear, the measure of damages would be the amount of the execution, interest, and costs.</p>

<p>If the treasurer of the State, by mistake, take from a bank a sum less than the amount of the tax, and give therefor a receipt “ in full for the semiannual tax on the capital stock of said bank which became due” on a cer» tain day, the State is not thereby barred from recovering the just amount.</p> <p>On the petition of the Waldo Bank, the legislature accepted a surrender of their charter, and declared that it should terminate when the act should take effect, o?i March 25, 1838, but also provided in the same act, “ that the said bank shall continue in its corporate capacity for and during the term of two years from the time this act shall take effect, for the sole purpose of collecting tjie debts due the corporation, selling and conveying the property and estate thereof, and shall remain liable for the payment of all debts due from the sanie, and shall be capable of prosecuting and defending suits at law, and for choosing directors for the purpose aforesaid, and for closing its .concerns.” The bank continued to transact ordinary banking business un« til March 25, 1838, and no longer, and on the thirty-first day of the same month, fifty per cent, of its capital was divided among the stockholders. It was held, that the bank was liable to pay the tax for the six months com» mencing October 1, 1837.</p> <p>Where the action was rightfully commenced against the bank, and a state» ment of facts was agreed upon between the parties and signed by theiy counsel, whthe this Court was in session and during the continuance of the .charter, and no law term of the Court was liolden in the county until after fhe charter had terminated, the Court, on motion of the plaintiff, ordered judgment to be rendered as of the term, when the facts had been agreed upon.</p>

<p>Assumpsit to recover the amount of the plaintiff’s fees as a constable of the town of Union for committing to prison at the request of the defendant, one Carkin on his being delivered up and surrendered by the defendant, as bail to Carkin, on the trial of an action of scire facias against him as bail.</p> <p>The case came before the Court on a statement of facts, and on written arguments, and was therefore decided by the whole Court.</p> <p>Robbins brought an action before a justice of the peace against Carkin, whose body was arrested, and the defendant became his bail. Non est inventus was returned on the execution, and Robbins sued out his writ of scire facias against Wthey. On the return day, as the record of the justice states, which was made a part of the case, “ the defendant surrendered on scire facias Isaac Carkin, and presented Robert Thompson, Jr. constable of the town of Union, to receive the said Carkin, and he was ordered into custody of said Thompson by me, the said justice, and mittimus delivered to Robert Thompson, Jr. costs of scire facias paid by defendant.” This was under the date of Dec. 20. The justice’s mittimus, dated Dec. 20, and the return of the plaintiff thereon, were also made part of the case. This return is dated Dec. 22, and states that he had arrested upon the mittimus the body of Carkin and committed him to prison in the county gaol, and left an attested copy of his precept with the keeper of the prison. The competency of the record of the justice and of the mittimus and officer’s return thereon were to be considered as objected to by the defendant. It was proved by a witness, “that the plaintiff admitted in his presence, that the defendant paid him fifty cents for his fees for his attendance before the justice when Carkin was surrendered, as stated in the justice’s record and mittimus.” A nonsuit or default was to be entered according to the opinion of the Court upon the case.</p> <p>An amendment of the writ had been permitted, and a reference was made to the writ to show the nature of it, but no such copy was furnished.</p> <p>said that the statute, 1821, c. 67, § 7, provides, that in a case like this the officer shall be paid by the bail the same fees as are provided by law for committing any defendant to prison on mesne process. The officer, to recover his fees, may well declare in general assumpsit, or declare specially, or may join both counts in one writ. Boswell v. JDinghy, 4 Mass. R. 411.</p> <p>The case finds, that the defendant procured the plaintiff to attend before the justice, and receive the principal. This shows our right of action. It is however contended by the defendant, that the plaintiff cannot recover, because his return is dated on the second day after the principal was surrendered by his bail. This was the day he left him in the prison, probably, or may have been by mere mistake. The twenty-first might have been the Sabbath day, or the snowdrifts might have been so deep as to prevent travelling such distance.</p> <p>contended that the amendment was improperly admitted, and cited Peabody v. Iloyt, 10 Mass. U. 36.</p> <p>The plaintiff can only recover as constable of the town of Union, and the case does not show, that he was constable.</p> <p>The foundation of the suit is, that the defendant had been bail for Carkin, that scire facias had been sued out, that Car-kin was surrendered by the defendant, and that the plaintiff was requested by the defendant to attend Court and receive the principal; and yet the case does not show by competent evidence, that any of these things were done.</p> <p>The Court was holden before the justice, Dec. 20, and on that day Carkin was ordered into the custody of the plaintiff. The mittimus merely authorizes the officer to receive the principal, not to arrest him, and forthwith convey him to prison. He did receive him on that day, and if he allowed him to escape, the defendant is not liable to pay for any services rendered after-wards. He must strictly perform his duty as directed, to have a statute remedy upon the defendant. He has already received payment for attending before the justice, and cannot prevail in this suit.</p>