Volume 21 — Maine Reports

<p>To sustain, on demurrer, an ihdietment for erecting and continuing a public nuisance, obstructing u Portland harbor, situate and being between the city of Portland and the town of Cape Elizabeth, and also wholly situate and being in the county of Cumberland, ” it is necessary that it should allege, that the part of the harbor in which the obstruction was erected was within the bounds of the city of Portland, or of some other town ; and the place where tho erection was, must be described in a manner that shall be certain to a common intent, and be averred to be within the county.</p> <p>An allegation in an indictment, for erecting a nuisance, that tho said S. at, ábe. u unlawfully, wilfully and injuriously did erect, place, fix, put and sol in the said harbor, and ancient and common highway there, a certain pari of a wharf it being apart of a wharf owned by the said S, and known by the name of Weeks5 wharf ” and has unlawfully, ábe. continued the same, is a defective and insufficient description of the nuisance.</p>

Exceptions from the Western District Court, Goobenow J. presiding. Somerville was indicted at the March Term, 1842, for feloniously taking sundry books on the eighth day of December, 1841, alleged to be “ of the goods, chattels, books and property of one Zabdiel Hyde, then and there in the possession of one William Hyde.” A witness was introduced to prove the property to be in Z. Hyde.

Exceptions from the Western District Court, Goodenow J. presiding. This was an indictment at the March Term of the District Court, 1842, against Somerville for feloniously taking sundry books, particularly described, tho properly of Robert II. Sherburne.

<p>This suit was commenced by William Ormsby, who has since deceased, and of whose estate II. H. Boody has been appointed administrator, against the present defendant; and John G. Deane was summoned as his trustee. Before any answer was made by him, Col. Deane died, and Rebecca D. Deane was appointed administratrix of his estate, and she came in and made an answer. From this answer, which was somewhat extended, it appeared, that J. G. Deane was one of the commissioners appointed by a resolve of the Legislature of this State to run the northeastern boundary line, and that they concluded to make a map to accompany their report. As the State had appropriated no funds to defray the expenses of the survey, the commissioners determined to incur no personal responsibility, and therefore stated to all they employed, that they could expect nothing for their services, except from the State, and what the State should allow them individually. The commissioners kept an account of the amount of services, and handed it to the Governor and Council, and it was allowed by them and the Legislature to each individual. Anson was employed by Deane in behalf of the commissioners, and his bill was among those thus handed in. He was paid for his services up to January 3, 1839, by the State. Since that time Anson labored fifty days in finishing the map. This account was presented to the Governor and Council, and also to Deane for payment, but payment was refused by each. Deane gave Anson a certificate of the time he was employed, as a voucher, to be laid before the Governor and Council. Prior to the service of the trustee process upon him, Deane had employed Anson upon some work of his own in preparing a map for publication of the same territory for his own benefit; and had from time to time advanced money on this account. At the time of the service, Anson was indebted to Deane to the amount of fifteen or twenty dollars. Deane had given a note to Anson, and the fifth interrogatory put by the plaintiff to the administratrix of Deane was, “Was said note for seventy-five dollars given by said John G. Deane to said Anson, on the twenty-seventh of April, prior to the service of the plaintiff’s writ on said Deane on that day ?” The answer by the administratrix of Deane was, “ The note of seventy-five dollars was given, to the best of my knowledge, prior to the service of this trustee process.”</p> <p>The case was submitted on the briefs of the Counsel.</p> <p>cited Cleaveland v. Clap, 5 Mass. R. 201.</p> <p>cited Bainbridge v. Downie, 6 Mass. R. 253 ; Mann v. Chandler, 9 Mass. R. 335; Sumner v. Williams, 8 Mass. R. 198; Scott v. Hancock, 13 Mass. R. 162; Caswell v. Wendell, 4 Mass. R. 108.</p>

‘ The action was assumpsit on a note, on an account for a horse sold and delivered, and for money had and received; and was commenced Feb. 16, 1841. A copy of the note declared on follows: — “ Standish, August 1, 1840.

Trespass on the case for an injury alleged to have been sustained by the plaintiff by means of a rope, extended across a public road in the town of Brunswick, in the evening.

Scire facias against the defendants, as indorsers of a writ, in a suit which had been tried in this Court, and in which •judgment had been rendered for costs for the defendants therein, who are the plaintiffs in this suit. That judgment was rendered April Term, 1840; the execution issued April 27, 1840 ; and was put into the hands of a deputy sheriff for the county who returned thereon as follows. “Cumberland ss. Oct. 27th, 1840.

<p>Exceptions from the Western District Court, Whitman J. presiding.</p> <p>When this action was called for trial, at June Term, 1841, on the 11th day of the term, the said Hervey, by his attorney, moved that the plaintiffs’ writ abate for want of legal service upon the defendant; he also had filed a plea in abatement setting forth the causes of abatement as hereinafter stated, on the 8th day of the term, being the first day he had seen the writ, but not until after the new entries had been called. The motion and plea stated, and an inspection of the writ showed, that the writ was originally dated April 21st, 1841, and subsequently altered in another hand to the 20th of April. Upon inquiry being made by defendant’s counsel, Mr. Daveis who made the alteration, stated that it was done to make the date conform to the fact, that the writ was actually made on the 20th, but it was altered after the writ had been returned to him by the sheriff with the bail bond annexed. Discovering the mistake, he immediately made the alteration, and gave the writ back to the sheriff. The sheriff testified that he took the writ and bond back, and called upon the defendant and the surety, stated to them the mistake, and they consented to it, but he made no alteration in the service or return. The officer’s return stated, that on the 20th of April he arrested the defendant, and took bail as required by the statute. Mr. Adams stated, that he made the writ at the bar, while the Supreme Court was sitting, at the request of Mr. Daveis, and that he thought the day was April 21st, until Mr. Daveis called his attention to it after the service, on the same day, and he was satisfied he was mistaken. The defendant objected to all statements in contradiction to the matter apparent on the record. It further appeared that the oath taken by the plaintiffs’ attorney and entered on the back of the writ, omitted the words “ establish his residence beyond the limits of this State,” and the words “and that the demand in the writ is, or the principal part thereof, due him,” required by the statute. Whereupon the attorney of the defendant moved that he be not held to answer to said suit.</p> <p>The Court ruled that the appearance of the defendant by attorney on the docket, without specification of his object, was a waiver of the objections ; that the motion should have been made before the new entries were called; and therefore ordered the defendant to be called. To which ruling the said Hervey excepted.</p> <p>It appears by the exceptions in this case that the oath taken, and which was essential to authorize the arrest of the debtor, was fatally defective in two important particulars, viz: in not alleging that the defendant was “ about to establish his residence beyond the limits of this State,” and in omitting the words, “ and that the demand in the writ is, or the principal part thereof, due him.”</p> <p>Without these words the arrest was entirely unauthorized and illegal. Act 1835, c. 195, <§> 3„; Whiting v- Trqfton, 4 Shepl. 398. Then, no authority existed for the arrest and it was illegal; and consequently, as nothing else was done, as no summons was left, or delivered, as provided by law, there has been no service of the writ whatever, and therefore the Court had no jurisdiction of the suit.</p> <p>That a defect apparent on the face of the writ may be taken advantage of on motion appears by numerous cases. This principle of practice is recognized in Hathorne v. Haines, 1 Greenl. 245 ; Blake v. Freeman, 13 Maine R. 130; Upham v. Bradley, 17 Maine R. 423. When must such á motion be made? If a plea in abatement were necessary the 18th rule of this Court requires it to be filed within two days after entry. But this is not a plea in abatement, but a motion, and by the 27th rule, these must be made at the opening of the Court on the 2d day of the term, ordinarily; but it is “provided that when the cause or ground of such motion or application shall first exist or become known to the party, after the time in this rule appointed for making the same, it may be made [if the cause require it] at any subsequent time,”</p> <p>The case shews that the motion was made by plea on the day the facts became known to the defendant’s counsel. There has been therefore, no laches on his part.</p> <p>The rules of the District Court, in which this suit was commenced, require that pleas in abatement must be filed before the time allowed for calling the new entries; but there is no rule of that court requiring that motions, for defects apparent on the face of the record, should be made within that time. This motion, then, was seasonably made.</p> <p>And although it may be true, as stated by Emery J. in Trcflon v. Rogers, 13 Maine R. 320, that “ generally, when the objection is taken by motion, it is entitled to no more favor in point of time within which it should be made, than a plea in abatement,” yet the cases cited by him do not confirm his position ; and even if true, generally, the principle cannot apply to a case where the party does not know ike facts, and cannot be presumed to know them within that time. Rathbone v. Rathbone, 4 Pick. 89.</p> <p>The same case shows, that the decisions of the Court below upon its own rules are not final, but subject to revision here.</p> <p>It has been repeatedly settled that where it appears by the proceedings that there has been no legal service of the writ, the Court will, ex officio, refuse to proceed in the suit, and stay all proceedings. Tingley v. Bateman, 10 Mass. R. 343; Gardner v. Barker, 12 Mass. R. 36; Jacobs v. Mellen, 14 Mass. R. 132; Lawrence v. Smith, 5 Mass. R. 362.</p> <p>The Court will dismiss such a writ on inspection.</p> <p>The defendant did not lose the right to take advantage of this illegal service, or in the want, of service, by the appearance of his attorney.</p> <p>It was good in abatement. Had the attorney filed his plea in abatement within the time limited for such pleas, he would not have lost, the benefit of it by having entered his name in the docket.</p> <p>Then if his motion was in lime, he could not have lost the benefit of it by having so entered his name. His appearance must be construed to have been for the express purpose of taking advantage of the exception. Blake v. Jones, 7 Mass. R. 28, and cases before cited. He could only lose the right to ta.ke this exception by a general continuance, or by having pleaded in bar, or the general issue.</p> <p>The plaintiffs have no right to amend their writ, after service. Greeley v. Thurston, 4 Greenl. 479.</p> <p>A plea in abatement in this case was filed on the eighth day of the term of the W. D. C. in June, 1841, and after the calling of the new entries upon the ground of defect in the service of the writ, by reason of the omission of a part of the oath required by the statute in regard to the arrest of the debtor.</p> <p>A motion to quash the writ upon the same grounds was made on the eleventh day of the term.</p> <p>The plea in abatement was not filed in season. Rule 8th, of the Western District Court.</p> <p>The defendant contends that the motion was made by plea on the day the facts become known to the defendant’s counsel. What can be taken advantage of on motion is not ordinarily a proper subject for a plea.</p> <p>The defendant had real and substantial notice of the whole writ at the time of his commitment, when the certificate and oath formed a part of it. And the writ was at the plaintiff’s command on the first day of the term, and if he did not then know the form of the oath certified upon it, it was his own laches; he had constructive notice at least. But it was for the defendant to shew to the satisfaction of the Court that he had no knowledge of these facts until the time the motion was made. This was not done.</p> <p>In fact there is no rule of the Western District Court, authorizing the plea or motion, when made. And this Court will not impose rules upon the District Court regulating the order of proceedings there, nor in ordinary cases interfere with its regulations for the despatch of business. The case of Rathbone v. Rathbone, 4 Pick. 89, cited by defendant, is to the point that the decisions of the Common Pleas upon its own Rules are not final, but that case was an extraordinary one. The effect of the construction being to deprive the defendant of his means of defence, in gross contravention of the intention of the statute allowing him to come in and defend.</p> <p>There can be no question that the plea in abatement was filed too late. If it could be regarded as a motion according to the construction claimed for it by the defendant, it was still too late. A motion to quash a writ must be made at as early a period as is prescribed by law for a plea in abatement. Trqfton v. Rogers, 13 Maine R. 320,</p> <p>This decision of our own Court is supported by the cases in Massachusetts. Simonds v. Parker, 1 Mete. 508; Kittredge v. Bancroft, ib. 513.</p> <p>Chief Justice Shaw says that the time for moving to dismiss, depends upon the same reasons as those for limiting the time for a plea in abatement.</p> <p>The ground of the motion is a mere defect in the service of the process and this is cured by a general appearance by attorney. ' Knox v. Summers, 3 Cranch, 496; 1 Chitty’s R. 129. *</p> <p>Although a defect in the affidavit to hold to bail may be substantial, yet it must be objected to within a reasonable time; and it is too late to object after the defendant has put in bail. 3 Chitty’s Practice, 340, citing Reeves v. Hooker, 2 Tyr. 161 ; S. C. 2 Crom. & J. 44.</p> <p>In Ripley v. Warren, 2 Pick. 592, Chief Justice Parker said, “ all irregularities in process must be taken advantage of by motion or plea in abatement in the first stage , of the process,” citing Gilliland v. Morrell, 1 Caines, 154; Hart v. Weston, 5 Burr. 2587.</p> <p>The case of Ripley v. Warren, is cited and affirmed in Carl-isle v. Weston, 21 Pick. 535, and in Simonds v. Parker, 1 Mete. 508, 511, where Chief Justice Shaw says, “ the writ was manifestly bad, on its face, in not complying with an express direction of the constitution of the Commonwealth,” and he gives this among other reasons for the rule. “ If a party takes no notice of any matter of exception to the form or service of the process in an early stage of the proceedings, it affords a reasonable ground to conclude that he considers them of no importance and is willing to proceed to a trial of his rights upon the substantial merits of the controversy.”</p> <p>The cases are uniform in maintaining the reasonableness of the rule that all defects of service must be taken advantage of at the earliest stage of proceedings, whether by motion or plea in abatement. It is decided expressly in Simonds v. Parker, and in Trafton v. Rogers, that a motion is entitled to no more favor in point of time than a plea in abatement. While the case of Rathbone v. Rathbone, cited by defendant, as establishing the contrary, is not at all in point.</p> <p>The defendant contends that the arrest was illegal, and therefore that the Court had no jurisdiction of the suit, and cases are cited to show, that when the Court has no jurisdiction of the suit, it will ex officio, and at any time abate the writ. This language is inapplicable since the Court had jurisdiction over the suit and the parties. It was a defect of service merely, and the same omission in the affidavit was so holden in Brigham v. Clarke, 20 Pick. 50 ; and in Ripley v. Warren, 2 Pick. 592. An equally fatal defect was held to be cured by the defendant’s appearing and pleading.</p> <p>The cases cited by the defendant from 10 Mass. R. 343, 12 Mass. R. 36, 14 Mass. R. 132, and 5 Mass. R. 362, are all cases where there was neither person nor property within the jurisdiction of the Court, and not cases of defect in the form of service of the writ.</p> <p>The case, Blake v. Jones, 7 Mass. R. 28, cited by the defendant, merely decides that a party may appear for the express purpose of taking advantage of an exception. And the defendant must state in his motion that he appears for that purpose only, as was done in Ames v. Windsor, 19 Pick. 247.</p> <p>The attorney’s entering his name under the action is a general appearance. Howes’ Practice, 203 ; Knox v. Summers, 3 Cranch, 496.</p> <p>The defendant cannot say that his appearance was for the express purpose of taking advantage of an exception, of the grounds of which he professes to have been ignorant until the eighth day of the term.</p> <p>In regard to the amendment of the writ after service, it was, in the first place, proved to have been done with the knowledge and consent of the defendant. Secondly, the amendment was allowed by the Court, upon proof that the writ was actually made on the 20th, and that its being dated the 21sl was by mistake; and it is competent to prove by parol evidence that a writ appearing by its date to have been issued on one day, was in fact issued on a different day. Trafton v. Rogers, 13 Maine R. 315; Bragg v. Greenleaf, 14 Maine R. 395.</p>

Petition for partition of a tract of land, in Falmouth, called the ship yard. The case depended on the construction to be given to the will of Samuel Cobb, senior, which will was approved March 16, 1790. All the portions of the will, having any relation to this question, are given literally in the opinion of the Court.

Assumpsit on a contract of which a copy follows. “Whereas John Welch and Moses Chesley have this day agreed to refer an action by rule of Court, now pending at Paris in the county of Oxford, between Moses Chesley, plaintiff, and John Welch, defendant, to the determination of John Cousins.

The action was debt upon a bond, dated March 26, 1841, given to the plaintiffs to liberate Rice from an arrest on an execution in their favor against him.

<p>The action was to recover supplies furnished by the plaintiffs to Napthali Harmon and family, alleged to have their legal settlement in Springfield.</p> <p>Harmon formerly had a settlement in Harrison, and continued to have one there, unless he had acquired a new one in Springfield by dwelling and having his home there at the time, of the incorporation of that town. No. 5 in the second Range was incorporated into a town by the name of Springfield, by an act approved Feb. 12, 1834.</p> <p>The plaintiffs contended that the town was incorporated on that day; but the jury were instructed by Shepley J. presiding at the trial, that the act did not take effect until thirty days after the session of the legislature terminated. By this instruction, the act took effect April 12, 1834. There were proceedings to organize under the act, March 27, 1834.</p> <p>There was testimony to prove that when Harmon left Harrison to go to No. 5, he expressed an intention to purchase a lot of land and settle there and make it his home; that he went there about Jan. 13, 1834, and remained there with a brother and sister a few days, and then left and went into the woods to work for men engaged in lumbering on lot No. 7, and there remained about a fortnight, and then returned to No. 5. or Springfield, where he worked at thrashing for a few ' days; that he was in Springfield on Feb. 12,1834, or at least, at the time when the news of the incorporation reached there; that during the spring, he went to Shirley to settle up his business there, and get the few things he had left there in 1833; that he worked sometime in Lee, and was again in Springfield about haying time, and from that time had established himself in Springfield as his home until he went back to Harrison in the fall of 1836 ; that ho went from thence to Gorham in the fall of 1837, where he was married, and con" tinued to reside until the supplies were furnished for which this suit was brought.</p> <p>The jury were instructed, that it was not sufficient that the pauper, when he left Harrison to go to No. 5, or Springfield, should have expressed the intention to settle there, unless he carried that intention into effect by having his dwelling and home established there before the act, incorporating that town, took effect.</p> <p>The verdict was for the defendants, and was to be set aside, if the ruling or instructions were erroneous.</p> <p>contended: that the act incorporating Springfield took effect, so far as this case is effected by it, at the time of its passage. The St. of 1821, c. 122, mode 5, refers to the lime of the incorporation. This was a complete and perfect act on Feb. 12, 1834. The town organized under the act before the expiration of thirty days from the close of the session, and thereby accepted the act; and were bound by if. from the time of its passage. But the legislature can provide, that any act may take effect immediately, and they have done so in this case, by providing that No. 5, be and hereby is incorporated into a town by the name of Springfield. Unless this is the true construction, it will always be known beforehand when the incorporation is to take place, and measures will be taken in contemplation of it. Going into a town with the intention of residing there, makes that his place of. residence, whether he has acquired a per.manent right to remain there or not. The instruction is also erroneous, because it requires his home to be established in Springfield before the act took effect. It was enough, that his home was there at the time. New Portland v. New Vineyard, 4 Shep. 69; Westbrook v. Bowdoinham, 7 Greenl. 363; Wilton v. Falmouth, 3 Shep. 479; Baring v. Calais, 2 Fairf. 463; Greene v. Windham, 1 Shep. 225; St. George, v. Beer Isle,- 3 Greenl. 390.</p>

<p>Where an indictment for double voting, under the statute of 1821, c. 115, regulating elections, alleges “that the inhabitants were convened according to the constitution and laws of the State in legal town meeting for the choice of town officers,” it is not necessary also to allege, “ that the inhabitants were summoned by warrant from the selectmen duly and legally served.”</p> <p>Nor is it necessary to add, that the inhabitants were assembled in town meeting to give in their votes, ballots, or lists for the persons to be voted for.</p> <p>A copy of the record of the warrant for calling the town meeting, is competent evidence, without producing the original warrant, or showing its loss. Where one voluntarily appears before the grand jury as a witness, but it does not appear of record that he was the complainant, he is not entitled to half the penalty given by the seventeenth section of that statute; and therefore is not for that cause an incompetent witness on the trial.</p> <p>The offence may be committed, although the presiding officer of the meeting may not keep a check list, as the law requires; and although he may throw out the ballots after the double voting has taken place, and commence the voting again.</p> <p>It is not necessary to allege in the indictment for this offence, that the accused was an elector entitled to vote at the meeting.</p>

<p>In construing deeds, one rule is, that a grant shall be taken most forcibly against the grantor. „</p> <p>Another rule is, that general words are not restrained by restrictive words added, whore such words do not clearly indicate the intention and designate the grant.</p> <p>If reference be made in a deed of conveyance to other deeds by any definite description, they are to be regarded as parts of the conveyance ; but to have that effect, the intention of the parties that they should be, must clearly appear.</p> <p>Where the grantor, at the time of the conveyance, had been in possession of and claimed to own several tracts of land adjoining each other, and containing in the whole about 280 acres, and by a deed convoyed a tract of land and described it as follows : “ M certain tract or parcel of land, situate in Falmouth, containing 230 acres more or less, all the lands which I own in said town, the hutts and homuls may he found in the county records at Portland.,” and conveyances to him were found on record “ of several different tracts of land adjoining each other, all containing 235 acres, and adjoining to these several tracts was another, the close in dispute, and which was claimed and possessed by tlic grantor, but to which lie did not appear to have had any title apparent by the record, or any other than a title acquired hy possession it was held, that the whole of the land was conveyed.</p>

Writ or Entry, demanding a lot of land in North Yarmouth. The demandant read a deed dated May 21, 1817, from Ichabod R. Loring to Jacob Hayes, jr. of a tract of land described thus: — “ Twenty acres of land in the lot numbered fifty-six in the one hundred and twenty acre lot, west side of Royal’s river, in said North Yarmouth bounded as follows, viz. beginning on the westerly side of said river by -the river, at the dividing line betwixt the land owned by Hannah Russell and…

<p>Hull was indicted at the March Term of the District Court for causing a nuisance in the city of Portland. There was no averment in the indictment, that the nuisance was continued. The defendant demurred, and the demurrer was joined.</p> <p>contended that the indictment was bad, because it did not show, that the nuisance was continued by Hull, as well as caused by him. The statute is imperative, that the nuisance must be continued, to render the defendant liable. Rev. St. c. 164, <§> 7.</p> <p>thought the statute negatived the position taken in support of the demurrer, the statute makes the person causing, or continuing, the nuisance liable. One may cause it, and another may continue it, and each may be liable. It is not necessary that there should be any judgment to abate the nuisance.</p>

<p>This action was originally commenced by Daniel Gilbert, since deceased, on whose estate W. Goodenow has been appointed administrator, against Josiah Dunn, formerly sheriff of the County of Cumberland, since deceased, on whose estate Sally Dunn is administratrix, for the default of Sewall Milliken, who had been his deputy. The attachment of the vessel, then unfinished, on Gilbert’s writ against Waterhouse, the builder of the vessel, was made October 14, 1837, being the first attachment in the order of time; the bill of sale of one fourth of the vessel from Waterhouse to Southgate was made July Í3, 1836, to secure him for advances made and to be made in building her; the bill of sale to Carter by Waterhouse of one half the vessel, to secure him also for advances made and to be made, was on May 27, 1836. No delivery of the vessel to South-gate or to Carter was made until October 17, 1837, after the attachment, when all the delivery was made, which was capable of being made, while she was in the bands of the officer, without his consent. The vessel was built, so far as Water-house conducted the building, on the public landing in Scarborough, and she was there in an unfinished state at the time of the making of the bills of sale and at the time of the attachments of Gilbert and of others, but was afterwards, by an agreement of persons interested, moved round to Portland, and there finished and sold by Milliken. Fifteen other attachments of the vessel by Milliken were proved to have been made, and Gilbert, and all the others, claimed a lien on the vessel under the provisions of the statute. The jury found that Gilbert had no lien, but that the other fifteen had. Milliken had in his hands, after paying all expenses incurred by him in finishing the vessel, $8,705,60. The amount of the judgments of the fifteen creditors, entitled to a lien, was $4,005,00. Balance, 4,700,60. The material facts in the case are concisely stated in the opinion of the Court.</p> <p>The verdict was for the plaintiff.</p> <p>There has nothing taken place to prevent maintaining the action against the sheriff for the default of Milliken, his deputy. The contract under which the vessel was finished and sold was never signed by Milliken until after our judgment was rendered, and a demand made on him for the property attached, and then without Gilbert’s knowledge. Milliken was one of the four parties to that agreement, and unless all the parties sign, it is not binding on those who do sign.</p> <p>Nor has there been any ratification. There can be no parol ratification of an instrument under seal. Stetson v. Patten, 2 Greenl. 359. But not even that has been proved.</p> <p>But if the agreement had been executed by all the parties, still it would not have released Milliken in his official character, and of course the sheriff is bound. The sheriff has power to sell personal property attached by consent of creditor and debtor, and the sheriff is liable for the proceeds, when done by the deputy. New Hampshire Savings Bank v. Varnum, 1 Met. 34. By the terms of the agreement, the proceeds were to be held in the same manner, as if the sale had been made on execution.</p> <p>It can make no difference, whether the intestate was entitled to a lien or not. Our attachment was the first, and .there is a balance in the hands of the officer of more than sufficient to pay our execution, after paying all expenses and all creditors entitled to a lien. We are then entitled to recover, unless the mortgages of Southgate and Carter are entitled to a priority over us.</p> <p>■Those bills of sale may be good, as between the parties to them; but they are void as to attaching creditors, because there was no delivery of the vessel. No possession was attempted to be taken, until after the vessel was attached, and in the custody of the law.</p> <p>The sheriff is not liable for the acts of Milliken. He did not act as a deputy, but the vessel was sold under an agreement, entered into not only by the creditor, debtor and officer, but two other parties, not standing in either of those relations, but as mortgagees. The whole parties to the agreement covenanted to do certain things between themselves, and that Milliken should be the agent to carry the agreement into execution. He accepted, and went on and acted ; and’ it is wholly immaterial whether he signed or not. He acted under the agreement, and sold under the agreement, and is bound to pay over under the agreement, and in no other manner.</p> <p>• But were it otherwise, his signature related back to the time of the execution of it by the others and is a ratification of it under seal. In the case cited for the plaintiff’, the ratification was merely by parol. Besides, the mere sale by his authority, and the receipt of the money, under the agreement, estop him to deny, that he had .acted under it.</p> <p>Being a binding agreement, the terms as well as the spirit of it take the-property out of the hands of Milliken as an officer, and place it in them as agent and trustee. As an officer, he could not pay to the mortgagees, and yet the plaintiff, by becoming, a party to the-agreement, agreed that-this should be done. He is an officer as to the whole of the parties or none.</p> <p>Again the putting of Milliken’s own property into the vessel, and finishing it off, and mixing üp the property attached with his own, dissolves the attachment. If the property had been again attached, Milliken could only have held under his agrpement, and not under his attachment. Gordon v. Jenney, 16 Mass. R. 465.</p> <p>The sheriff is not responsible, unless the deputy acts as an officer. Marshall v. Hósmer, 4 Mass. R. 60; Bond v. Ward, 7 Mass. R. 123 ; New Hampshire Savings Bank v. Varnum, 1 Mete. 34.</p> <p>There seems to have been an argument furnished in behalf of the mortgagees; but when, or by whom, or what it was, further than appears in the opinion of the Court, is unknown to the Reporter.</p>

<p>Exceptions from the Western District Court, Whitman J. presiding.</p> <p>Assumpsit on a note of which a copy follows.</p> <p>“ Standish, May 10, 1841.</p> <p>“ On demand I promise to pay Albert M. McKenney, or order, ten dollars, with interest, at my residence at Standish, value received. Carlisle Whipple.”</p> <p>The plaintiff offered the note in- evidence, but had not alleged in his declaration, and did not offer to prove a demand of payment at the maker’s residence before the commencement of the suit.</p> <p>The presiding Judge ruled, that as the note was made payable at the residence of the maker, a demand was necessary before bringing the action, and directed a nonsuit. To this the plaintiff filed exceptions.</p> <p>If a note be made payable at a time and place certain, no averment or proof of demand is necessary on the part of the plaintiff; but if the maker was ready to pay at the time and place specified, that is matter of defence. Carley v. Vance, 17 Mass. R. 389; Bacon v. Dyer, 3 Fairf. 19; Remick v. O’Kyle, ib. 340; Ruggles v. Patten, 8, Mass. R. 480 ; Hart v. Green, 8 Verm. R. 191; Wolcott v. Van Santvoord, 17 Johns. R. 248.</p> <p>There is no reason for any distinction between a note payable at a particular time and place, and one payable on demand at a particular place.</p> <p>A note payable on demand is due immediately, and the statute of limitations begins to run from its date. Little v. Blunt, 9 Pick. 488; Newman v. Kettelle, 13 Pick. 418; Rice v. West, 2 Fairf. 323; Smith v. Bythewood, 1 Rice, 245. As against the maker, the suit may be maintained without deni a rid, allhough to charge an indorser, it may be necessary. Shaw v. Heed, 12 Pick. 132.</p> <p>This question has been decided in the State of New York in our favor. Buxton v. Bishop, 3 Wend. 13. in this case, the Court held the intimation made to the contrary in Caldwell v. Cassidy, 8 Cowen, 271, to be erroneous. In this State, the Court did not intimate, that there was any distinction between a note payable at a place certain on demand or at a fixed time.</p> <p>The decisions in the English Courts can have no bearing on this particular question, because they have held, that a demand is necessary, where the time and place are both fixed in the note. Saunderson v. Bowes, 14 East, 500; Ravee v. Young, 2 Brod. & Bing. 165.</p> <p>admitted that it had been decided in this country, that when a note is payable at a certain day and place both, no demand is necessary before bringing, the suit. But he contended, that the same rule does not apply, where the note is made payable at a fixed place on demand. 2 Brod. & Bing. 165; Caldwell v. Cassidy, 8 Cow. 271 ; Bacon v. Dyer, 3 Fairf. 19; Tuckerman v. Hartwell, 3 Greenl. 151. i</p> <p>The note was made'in this manner to protect the defendant against costs, until a demand should be made upon him at his place of residence. No tender could be made until a demand, and the defendant is not liable until a demand of payment is made upon him at his place of residence, where only he stipulated to make payment.</p>

<p>Trespass quare clausum for breaking and entering the' plaintiff’s close, being a dwellinghouse in Portland. The defendant had purchased a house of Geprge Sumner, and mortgaged- the same back to him to secure the sum of 2300 dollars. Andrew Gilman recovered judgment against the defendant in October, 1838. The right of the defendant to redeem was • seized on execution and legally sold, Dec. 15, 1838, to the plaintiffs, and the officer conveyed to them by deed of the same date. Harding had been in possession before the sale of the equity, and continued in possession until Dec. 1839, when the mortgagee, for the first time," entered into possession to foreclose his mortgage. For the purpose of settling the facts, the jury were instructed by Shepley J. then presiding, that the plaintiffs on this testimony might maintain the action. A verdict for the plaintiffs was taken for the amount of damages from the time of the sale of the equity to the time of the entry of the mortgagee, which was to be set aside and a nonsuit entered, if the plaintiffs were not entitled to recover.</p> <p>contended, that as the plaintiffs had no title, except as purchasers of the equity of redemption, and having made no entry into the premises, they could not maintain the action* Possession in fact is necessary to maintain an action of trespass against the defendant,- who had always been in possession. French v. Fuller, 23 Pick. 104; Rising v. Stannard, 17 Mass. R. 282 ; Taylor v? Townsend, 8 Mass. R. 411.</p> <p>said that the sheriff’s deed was as good as Harding’s. St. 1821, c. 60, § 17.</p> <p>Until the mortgagee takes possession, he is not entitled to the rents and profits. The rents belong to the plaintiffs. Wyman v. Hook, 2 Greenl. 337; Wilder v. Houghton, 1 Pick. 87 ; Boston Bank v. Reed, 8 Pick* 459; Langdon v. Potter, 3 Mass. R, 215,</p>

<p>Debt on á poor debtor’s bond, dated at Calais, Feb. 20, 1838, given by Scammon, as principal, and by the other defendants as his sureties, to procure the release of the principal from arrest on an execution in favor of the plaintiffs. The condition of the bond recited the judgment and arrest on the execution, and .concluded thus: — *•“Now if the said Andrew Scammon shall within six months from the date hereof cite the said S. Longfellow & Son to appear before two justices of the peace, quorum unus, and then and there shall submit himself to examination and take, the oath as prescribed in the tenth section of the act entitled ‘ An act for the relief of poor debtors,’ or pay.the debt, interest, cost, and fees arising on said execution, or be delivered into the custody-of the. jailer of said pojinty, then the above bond shall. be void, otherwise remain in full force.” The creditors were notified to appear before two justices of the peace and of the quorum at a certain place and hour of the day in Bangor, on the 22d of August, 1838, two days after the expiration of six months from the date of the bond, when and where Scammon appeared, and the justices administered to him the poor debtor’s oath.</p> <p>Shepuey J. before whom the case came on for trial, was of opinion, that these proceedings did not constitute a legal defence, or afford the defendants any protection, because the oath was not taken within six months from the date of the bond. The defendants thereupon consented to be defaulted, which default was to be taken off, if the opinion was erroneous.</p> <p>At the April Term, 1842, it was agreed that the case should be argued in writing, but no arguments have come into the hands of the Reporter.</p>

<p>Exceptions from the Western District Court, Whitman J. presiding.</p> <p>Assumpsit on a policy of insurance, dated Nov. 5, 1839, whereby “ the subscribers, associated for marine insurance, do by these presents cause to be insured, lost or not lost, Levi Blanchard, Jacob G. Loring, Thaxter Prince and Paul Prince, for the term of one year from the twenty-fifth day of October, 1839, on the schooner Oxford,” the sum of two thousand dollars, of which sum the defendant subscribed one hundred dollars. The suit was brought in the name of Blanchard alone. The declaration alleged that the plaintiff owned three eighths of the Oxford, and that the remainder was owned by Loring and T. & P. Prince; and averred a total loss within the year by the perils of the sea.</p> <p>At the trial, the plaintiff read his writ to the jury, and the policy of insurance declared on. The District Judge directed a nonéüitj on the ground, that it appeared that other persons should have been joined as plaintiffs. The plaintiff filed exceptions)</p> <p>The Counsel for the plaintiff cited Harding v. Foxcroft, 6 Greenl. 76; Copeland v. Mér. Ins. Co. 6 Pick. 198; 1 Saun. 153; Yelv. 177; Hammond on Parties, 28; 2 Caines, 203 ; 4 Esp. R. 98 ; Gardner v. Bedford Ins. Co. 17 Mass. R. 613 ; 4 B. &> Aid. 436; 4 Wend. 75 ; Cleaveland v. Clap, 5 Mass. R. 201; 1 Binney, 429; M’Cullock v. Eagle Ins. Co. 1 Pick. 278; 5 Wend. 541; Phillip’s Ins. 58; 5 Cranch, 342; 2 Cranch, 45; 8 T. R. 13; Oliver v. Greene, 3 Mass. R. 133 ; 1 Conn. R. 571; 1 Wash. C. C. Rep. 241; Farrow v. Com. Ins. Co. 18 Pick. 53; Wood v. Ward, 13 Mass. R. 544 ; 7 Wend. 82.</p> <p>The Counsel for the defendant cited Davis v. Boardman,12 Mass. R. 80; and Pearson v. Lord, 6 Mass. R. 81.</p>

<p>A tenancy at will, or from year to year, is determined by the death of the tenant.</p> <p>If one occupies a portion of the premises under a verbal agreement with the tenant at will, his right to occupy ceases at the death of the tenant at will, and he is not entitled to notice to quit before an entry into the premises by the owner.</p>

<p>This was an action of trespass by the plaintiffs as copartners against the defendant, then sheriff of the county of Cumberland, for taking and carrying away certain goods, as belonging to the copartnership, oil a process against Joseph P. Bradbury, one of the plaintiffs, to satisfy a debt due from him only.</p> <p>The plaintiffs at the time of the taking were doing business under an agreement of which the following is a copy: —</p> <p>“ COPARTNERSHIP NOTICE.</p> <p>“ This is to certify that the undersigned, all of Portland, County of Cumberland, and State of Maine, have formed this day a limited partnership under the name of J. P. Bradbury & Co. of which J. P. Bradbury is the general partner and Henry Coffin the special partner — said special partner has contributed $jj 1500 as capital to the common stock for carrying on a general grocery business. The partnership will commence from the day of the date hereof and continue two years.</p> <p>“ J. P. Bradbury,</p> <p>“Henry Corbin.</p> <p>“Portland, Nov. 16, 1840.”</p> <p>This was acknowledged on the same day before a justice of the peace, and recorded in the registry of deeds for the county on the next day.</p> <p>It was proved, that Coffin furnished the fifteen hundred dollars, being the whole capital that was to be employed in the business of the firm; that he was to have profits equal only to six per cent, on his investment; and that Bradbury was to perform all the labor and have the remainder of the profits. Goods were purchased with this money, sold, and other goods purchased with the proceeds of the sale, and the business conducted until the attachment took place, within the two years.</p> <p>A verdict was taken for the plaintiffs for the value of the ' property taken by the defendant, which was to be set aside, and a nonsuit entered, if the action could not be maintained.</p> <p>contended that the partnership formed by the plaintiffs, although it might be intended as a special one, was in fact a general partnership.</p> <p>The statute of 1836, c. 211, § 1, provides, that in special partnerships, the .business shall be transacted in the name of the special' partner only without the addition of the word, company. In this case, the business was done in the name of Bradbury and company, and they cannot avail themselves of the privileges of the act, when they have violated its provisions.</p> <p>Whether it is a general or special partnership can make no difference in this case. Whatever stock was bought for the partnership, as soon as purchased, became partnership property. Each partner, therefore, had an interest in the stock; they were tenants in common ; and the sheriff may take and hold the common property for the debt of one, without being liable as a trespasser.</p> <p>The whole learning upon the subject is to be found in an article in the American Jurist for October, 1841, p. 55 to 85. The point has been met, and expressly decided in our favor in this Court in Douglas v. Winslow, in Penobscot county, not yet reported.</p> <p>contended, that they were entitled to retain their verdict.</p> <p>The plaintiffs were in business under articles of limited partnership, supposed to have been instituted pursuant to the provisions of the act of 1836, c. 211. They proceeded pursuant to the act, unless the addition of “ & Co.” to the name of the general partner in the style of their firm be a fatal departure from the statute. This provision of the statute is only directory, and this addition involves no disability or nullity of the firm as a special partnership, nor converts it into one of general partnership, against, the manifest purpose of the parties and the intention of the law; especially in favor of a party who has at no time dealt with the firm.</p> <p>But whether the plaintiffs were partners under the statute, or were partners under the common law principle of contracts, their partnership can only be regarded, upon the proof in the case, as a limited partnership, assimulating in all its features, and in its whole nature, to a contract of agency. If so, it is to be respected in law by all persons, according to such limitations or agency. Was it competent for the plaintiffs to form such a partnership ? If so all persons, no less than themselves, were bound by these stipulations, and could do nothing lawfully inconsistent with them, without being guilty of a trespass. This partnership cannot be regarded other than one in which one partner was to furnish the whole capital, in the ownership of which the other was in no event to have any part, but only in the profits derived therefrom, making it a partnership in only the profits. Story on Partnership, § 23, 27, 88, 38, 40, 41, 45, 51; Allen v. Dunn, 15 Maine R. 293 ; Loomis v. Marshall, 12 Conn. R. 69.</p> <p>The seizure of the property was not at law justifiable. Inasmuch as the facts of the case find, that the property attached was the property of the special partner exclusively, and purchased wholly with his funds, and not otherwise, and that Bradbury never had, and was not, from the nature of the limited partnership proved, to have, any property in the corpus of the goods attached, but only was invested by the terms and nature of the partnership with a possessory interest and control over the same, similar in its nature and effect to that of an agent, there was nothing to justify the attachment — no tangible property of Bradbury in the goods for creditors to levy upon. Rice v. Austin, 17 Mass. R. 197; Allen v. Durm, 15 Maine R. 293; Com. Bank v. Wilkins, 9 Greenl. 38. An attaching creditor of one partner can take no other or different interest in the partnership effects, than his debtor had at the time of the attachment.</p> <p>The action accrues to the plaintiffs against the officer, in the same manner as if the officer had attached, as Bradbury’s property, any other interest not attachable, as in Smith v. Cudworth, 24 Pick. 197, and in Wentworth v. Young, 17 Maine R. 70. If either of the plaintiffs could have maintained an action, certainly the two partners could do so, by which is united the proprietary and the possessory interest in the property, in one suit. Wilson v. Conine, 2 Johns. R. 280 ; Story on Partnership, § 256.</p>

<p>Exceptions from the Western District Court, Whitman J.' presiding.</p> <p>The action was assumpsit, the declaration containing two counts; one for money had and received;. and the other against the defendant as indorser of an instrument of which a copy follows; — “Bangor, July 19, 1834. Due Alfred Knight, or order, forty-nine dollars twenty-five cents, in sixty days. Smith & Parsons.” It was indorsed in blank by Alfred Knight and by" the defendant. At the trial, the plaintiff abandoned the special count, and relied solely on the count for money had and received.</p> <p>The plaintiff offered in evidence the deposition of Parsons, one of the makers' of the note, to prove that, the note was without consideration, and had been obtained from them by Knight by fradulent misrepresentations. To the admission of this deposition the defendant objected, on the ground that one of the signers of the note could not be called as a witness to impeach the note for want of consideration. The objection was overruled by the Judge, and the deposition admitted.</p> <p>S. Chesley was called by the plaintiff and testified, that sometime within three months from Jan. 1, 1835, Marshall called at his shop in Portland and enquired of the witness whether he was acquainted with the signers of the note, and if he considered them good. The reply was, that they were good. The note was then produced by Marshall, who wished to sell it, and said he would take part money and part goods. He was referred by the witness to the plaintiff.</p> <p>Marshall then went and saw the plaintiff, and proposed to let him have the note, if he would pay twenty dollars in money, and the balance in goods. The defendant was asked, if the note had ever been presented, and replied, that it had not. The plaintiff then enquired of the defendant, if the note was good, and if it would be paid when it was sent down, to which the defendant replied in the affirmative. The plaintiff then paid for it twenty dollars in money, and the balance in goods, and Marshall indorsed the note, and delivered it to Cushman.</p> <p>The Counsel for the defendant contended, that the action was not maintainable upon this evidence, no demand or notice •having been proved; that if the plaintiff would recover the money paid for the note on the ground of fraudulent misrepresentations made by the defendant to the plaintiff, it should be in a different form of action, and not under the money count. The Judge instructed the jury, that if the defendant falsely represented to the plaintiff, that the note was valuable and justly due, knowing it' was not, then the plaintiff was entitled to recover of the defendant the twenty dollars paid for the note with interest. The verdict was for the plaintiff, and the defendant filed exceptions.</p> <p>said they were entitled to a new trial, on the ground that the deposition of Parsons, one of the makers of the note, was clearly inadmissible; and .cited Deering y. Sawtelle, 4 Greenl. 191.</p> <p>after remarking that the only objection taken in the opposing argument was, that the deposition of Parsons was improperly admitted, said there could be no objection to it on the ground of interest in the deponent. The recovery of judgment either way could not be evidence in a suit against Parsons. Stark, on Ev. 1729; Gibbs v. Bryant, 1 Pick. 121; 3 T. R. 601.</p> <p>The deposition does not go to show, that the note was void at its creation. In a suit against an indorser, the maker may be called to prove a failure of consideration, or payment after-wards. Baker v. Briggs, 8 Pick. 127 ; Gibbs v. Bryant, before cited; Freeman’s Bank v. Rollins, 13 MaineR. 202.</p>

<p>The mortgagor has no right to have a part of the mortgaged premises, under any circumstances, estimated in payment of his debt, with a view to the redemption of the residue.</p> <p>A foreclosure of a mortgage cannot take place as to one part of the mortgaged premises, and not as to the residue. If the mortgagor has a right to redeem any part, he has a right to redeem the whole.</p> <p>And so long as the mortgagor is suffered to remain in possession of any part of the mortgaged premises, his right of redemption to the whole will continue.</p> <p>Mem. — Shepley J. was called upon to give his deposition, to be used in this case, and took no part in the decision.</p>

This was a writ of entry demanding certain lands in Saco. The land was the property of Olive Spring, the wife of John Spring. On Jan. 4, 1830, Spring and wife mortgaged the property to the Saco Bank, and before the charter of the corporation expired by its own limitation, the bank assigned the mortgage to Jonathan King, Samuel Hartly and George Thacher for the benefit of the stockholders.

<p>Parol proof of an acknowledgment by a principal that an agent hacl authority under seal to enter into a sealed contract obligatory upon bis principal, is not competent evidence of such authority.</p>

This was an action of assumpsit on a promissory note dated May 10, 1839, for 15,00, payable in 30 days and interest, given by the defendant to one Sarah Morrison, and by her indorsed to the plaintiff.

<p>At the trial of this action of dower, before Emery J., the subscribing witnesses to the deed from Caleb Lassell, jr., described as of Hollis, to the tenant, by which he claimed that Mrs. Frost, then the wife of Lassell, had relinquished her right of dower, stated that they did not see her sign it, as it was executed by the husband at the place where it was written, she not being then present, and carried away. The tenant then offered evidence to prove her declarations, “ as to her having signed said deed, and as to her having requested her husband, said Caleb, jr., to sign it for her.” This was objected to by the plaintiffs, but was received by the presiding Judge. Her admissions were proved, some made when her husband, the grantor, was present, some, during his life, when he was hot present, and some made after his death and before her intermarriage with Frost. In some instances she stated that she had signed the deed, merely, and in others, that she requested her then husband to sign the deed for her, and that he so did. In these conversations she said that the tenant gave her three dollars at the time of signing. The closing words of the deed immediately preceding the date, were these : — “In witness whereof J, the said Caleb Lassell, junior, and Susan, wife of said Caleb Lassell, in token that she relinquishes her right to dower in the premises, have hereunto set our hands and seals, this,” &c. Another person, described as “ Caleb Lassell of Waterborough,” was mentioned in the descriptive part of the deed.</p> <p>The verdict for the tenant was to be set aside, if the testimony was erroneously admitted, or if the defence was not made out.</p> <p>contended that a married woman cannot bar herself of dower, unless by a deed executed by her with her husband, at the same time, and part of the same transaction, or by a subsequent deed, reciting the conveyance of her husband. Here, if there was evidence of her signing, it was neither an execution with her husband of his deed, with apt words to bar her of dower, nor a subsequent deed of her own, referring to her husband’s. Fowler v. Shearer, 7 Mass. R. 14 ; Rowe v. Hamilton, 3 Greenl. 63 ; Stearns, 289; Powell v. Monson &f Brimfield Marig Co. 3 Mason, 347.</p> <p>If the testimony was admissible, it does not show, that there was any legal signing of the deed by her. She could not make her husband her agent or attorney to sign the deed for her. It is no deed of hers. And if she could make her husband her agent, it could not be done by parol. Nor is the parol consent of the husband, after the deed is executed by him, at another time, a sufficient assent.</p> <p>A signing afterwards, did not adopt the covenants in the deed.. They were no estoppel. At most it was a bare release of a right which did not exist at the time, and there is no estoppel to prevent her claiming dower, when it did accrue.</p> <p>A power to execute a deed for another, must be in writing and under seal. The whole parole evidence was therefore erroneously admitted.</p> <p>said that the evidence was rightly admitted. It was the best evidence the nature of the case would admit. As the subscribing witnesses failed to prove the execution of the deed by her, other evidence to show the fact was admissible. Her own statements are the most satisfactory. 1 Peters, 596; 1 Greenl. 62, note; Whitaker v. Salisbury, 15 Pick. 544; Pelletreau v. Jackson, 11 Wend. 110, 123.</p> <p>Her acknowledgment was the highest and most satisfactory evidence, when no witness who saw her sign could be produced. Hall v. Phelps, 2 Johns. R. 451; Fox v. Reil, 3 Johns. R. '477.</p> <p>It is contended, that the evidence proved that the signing by her was a signing with her husband. The true rule is, that it is sufficient, if it be a signing of the same deed and for the same consideration, so as to make it a part of the same transaction. And the law' is thus laid down in the case cited for the plaintiffs from 3 Mason, 347.</p> <p>She did not make her husband her agent or attorney to sign the deed for her. She was present at the time, and because she could not write, requested .her husband to write for her. It was her own act and 'own signature.</p>

<p>Writ of entry against Joseph Grant and Joseph Grant, jr., demanding a tract of land in Shapleigh. Grant, sen. pleaded non-tenure, and replication was made that he was in possession. Grant, jr. pleaded the general issue, which was joined.</p> <p>The case was opened for trial, when the demandant proved, that the demanded premises were attached October 15, 1838, on a writ in favor of the demandant against Grant, sen.; that judgment was duly recovered in the action at the Oct. term 1839, Western District Court, for this county ■ that execution issued thereon, and was regularly levied on the demanded premises, as the property of Grant, sen. within thirty days oif the time of judgment, and seisin delivered. The proceedings were recorded within ninety days.</p> <p>The demandant then called R. Buck, who testified, that he once owned the premises; and on October 13, 1836, gave a deed thereof to Grant, sen. with other lands, constituting the farm on which the tenants now live and have lived since the Spring of 1837, and at the same time, took back a mortgage from him to secure notes amounting to $1025, part of the consideration, and the whole thereof, excepting about one hundred dollars, then paid him by J. Grant, jr. and W. Grant, sons of Grant, sen. and then both minors ; that nothing had since been paid to him ; that on January 12, 1839, neither the deed nor mortgage back having been recorded, at the request of Grant, sen. and his two sons, he, having no knowledge of any attachment thereon, took back and cancelled the deed of the farm including the demanded premises, and gave up the notes secured by the mortgage to be cancelled, and made a deed to Grant, jr., the tenant, and W. Grant, and took back from them a mortgage to secure the payment of all the original purchase money, excepting the $100, paid; and that the deed from him to Grant was given back and cancelled, and a new one given principally to save expense.</p> <p>The parties then agreed to take the case from the jury, and submit the same on this evidence as a statement of facts ; and that the Court might render such judgmént as the facts would warrant.</p> <p>At the time of the attach merit, the title in the premises demanded was, as to attaching creditors, in Joseph Grant, sen. He entered into and occupied the land under a deed to him, and was in such occupation at the time the attachment was made. 13 Maine R. 280 ; 1 Marshall, 280 ; 2 J. J. Marshall, 433 ; 2 Bibb, 423 ; 3 Marshall, 12. The occupation of the premises by Grant, openly and peaceably, was equivalent to the registry of the. deed. Webster v. Maddox, 6 Greenl. 258 ; St. 1821. c. 38, $ 1 ; Priest v. Rice, 1 Pick. 168 ; 7 Watts, 261 ; 10 Watts, 412. And as to attaching creditors, the estate was absolutely in Grant, and not merely the equity of redemption. A mortgage must be recorded to be valid against creditors who have no notice of it. 7 Dana, 258 ; 9 Dana, 390, 69, 77 ; 1 Wash. 319, 58 ; 3 Hen. & Munf. 232 ; 4 Hen. & Munf. 424 ; 3 Gill. & John. 426 ; Martin & Gerger, 385; 7 Cowen, 360; Priest v. Rice, 1 Pick. 168; Trull v. Skinner, 17 Pick. 213.</p> <p>The cancellation of the deed from Buck to Grant, though done with the assent of both parties thereto, did not divest the property, if the rights of third persons, as in the present case, had previously attached to the estate. Farrar v. Farrar, 4 N. H. R. 195; Co. Lit. 225, b. note 136 ; 1 R. in Ch. 100 ; Gilb. R. 236 ; Sheppard’s Touch. 69, 70; 3 T. R. 151 ; 2 Lev. 113; 1 Vent. 296 ; 7 Bro. Pari. Ca. 410 ; Cro. Jac. 399; 1 Atk. 520; Gilb. Ev. 109 ; 2 H. Black. 259; 3 Cruise Dig. Tit. 32, Deed, <§. 10 ; 2 Vern. 473 ; Ambl. 429 ; 6 East, 86; 4 B. & Aid. 672 ; 1 Johns. Ch. R. 417; 2 Johns. R. 86; 8 Cowen, 71; 7 Wend. 364; 4 Conn. R. 550; 5 Conn. R. 262; 4 Gerger, 375; 6 Mass. R. 24; 9 Mass. R. 312; 11 Mass. R. 332 ; 9 Pick. 105; 23 Pick. 231; 1 Greenl. 73; ' 17 Pick. 213 ; 16 Maine R. 158.</p> <p>The entry into and occupation of the land by Grant under his deed from Buck is, as has been already remarked, equivalent to recording the deed. As the deed of mortgage was not recorded, and the plaintiff had no knowledge of it, as to him it did not exist. Buck could not set up this secret conveyance by a mortgage against creditors. It would be a fraud upon them, whatever the intention might have been. Fraud, in a legal sense, means an act unwarranted by law to the prejudice of a third person. Lofft’s R. 472 ; 1 Cowp. 117 ; 1 Burr. 474; 3 Atk. 646; 1 Ves. 64; 8 Johns. R. 137; 10 Johns. R. 374.</p> <p>There is not in the case the slightest pretence of fraud on the part of Buck, and he had no knowledge of the plaintiff’s attachment. The only inquiry is, what are the legal rights of the parties ?</p> <p>The authorities cited assert the abstract principle, that the cancelling of a deed does not reconvey the premises. But in other cases, that principle is qualified and explained, and if not overruled, is entirely disregarded.</p> <p>But if it did apply to the extent contended for by the plaintiff, it applies with equal force to the mortgage deed between the same parties, which was cancelled at the same time and was a part of the same transaction. This was so holden in a case similar to this. Jackson v. Chase, 2 Johns. R. 84. In accordance with that are Tomson v. Ward, 1 N. H. R. 9, and Roberts v. Wiggins, ib. 73. Let the effect of the cancelling of the deed be what it may, it is the same upon the deed and upon the mortgage. The plaintiff then has mistaken his remedy, and by grasping at too much has lost the whole. The remedy of the plaintiff was by a sale of the equity of redemption, and not by a levy upon the land. Bayley v. Bayley, 16 Maine R. 151; 15 Pick. 84; 6 Greenl. 289 ; 13 Mass. R. 51; 9 Mass. R. 247.</p> <p>Nor is it true, if the plaintiff is right in saying, that the land was not revested by cancelling the deed, that the mortgage became void by taking the notes of the young Grants. If the deed to Grant, sen. remains valid, then the deed to the sons conveyed nothing, the notes were without consideration, and cannot be enforced. The new notes then did not operate as a payment of the debt from Grant, sen. to Buck. Nothing but actual payment, of the debt will discharge a mortgage, or prevent the mortgagee from having his remedy upon it. Gray v. Jenks, 3 Mason, 520; Vose v. Handy, 2 Greenl. 322; 8 Mass. R. 554 ; 9 Mass. R, 242 ; 7 Mass. R. 63 ; 11 Mass. R. 125.</p> <p>The most that the plaintiff’ can contend for with any semblance of justice is, that the arrangement, of Jan. 12, 1839, when the deed and mortgage were cancelled, did not affect his rights acquired by his attachment. This was but the equity of redemption. 10 Mass. R. 403 ; 13 Mass. R. 498; 6 Mass. R. 32; 1 Greenl. 73; 9 Pick. 105 ; 8 Cowen, 74. If he acquired any title by his levy, which is denied, he cannot hold a greater estate, than what belonged to his judgment creditor, the right in equity. 16 Mass. R. 400. And in such case the action cannot be maintained, as the fee simple is in Buck, the mortgagee, and the defendants are in possession under him. 6 Mass. R. 50; 11 Mass. R. 469; 13 Mass. R. 227; 2 Greenl. 132.</p>

<p>Error to reverse a judgment of a justice of the peace in an action of debt brought by Perkins, as clerk of a company of artillery in the first division and second brigade, to recover a fine of Folsom for neglecting to perform militia duty as a private in that company, on the fourth day of May, 1841.</p> <p>The error mainly relied upon was, that there is no evidence in the record, that Perkins was legally appointed sergeant or clerk of said company, whereas the justice decided that Perkins was sergeant, and was clerk.</p> <p>The evidence appearing on the exceptions showed, that Perkins, to prove that he was clerk, produced a sergeant’s warrant in common form, signed by James Thomas, Brigadier General, second brigade, and first division, dated Aug. 20, 1840, directed to Perkins, as sergeant of the B. company of artillery in said brigade. On the back of this warrant was a certificate signed by the captain of 'that company, appointing Perkins clerk of the company, dated Sept. 2, 1840; and also a certificate of the oath, of the same date. There were two companies of artillery in the brigade, forming a battalion, commanded by a major.</p> <p>The defendant objected that the appointment of Perkins as clerk was void, because he was not a sergeant, the brigadier general having no power to appoint, or to grant the warrant. The justice overruled the objection, and adjudged that Folsom should pay a fine.</p> <p>cited the st. 1834, c. 121, in relation to the militia, <§> 8, 12, 17; and contended that the statute was imperative, that in a case like the present, the sergeants of companies are to be appointed by the captains of the companies, “ who shall forthwith make return thereof to the commanding officer of their respective regiments or battalions, and they shall grant them warrants accordingly.” The brigadier general hád no legal authority to act in the matter, and the warrant signed by him was entirely void. No person can legally be clerk, who is not a sergeant. The nineteenth section applies only to commissioned, and not to warrant officers. Perkins failed of showing himself to be clerk of the company, and could not therefore maintain the action. The judgment then should be reversed.</p> <p>1. The defendant in error, on the receipt of his warrant signed by the brigadier general, was duly authorized to act as sergeant. The authority of the brigadier general to grant warrants to the non-commissioned officers of volunteer companies raised at large, and not annexed to any particular regiment, is obvious from the general tenor of the statute, as well as from military usage. St. 1834, c. 121, § 4, 19.</p> <p>2. If the warrant in question was granted by competent authority; the certificate thereon of the original plaintiff’s appointment and qualification as clerk by the captain, is sufficient evidence of his appointment to that office. § 8.</p> <p>3. If the brigadier general had not in the first instance the power to grant the warrant, although he was the superior officer, yet the battalion major, having expressed no dissatisfaction, had by more than a year’s silence ratified the act, and had adopted it as his own. Rollins v. Mudget, 4 Shepl. 339.</p> <p>4. In case the original plaintiff was not a sergeant at the date of his appointment as clerk, and the appointment therefore void, the captain, who is indirectly a party, has the right by statute to assume and continue the prosecution of this suit to final judgment; and the Court may permit an amendment for that purpose. St. 1837, c. 276, <§> 9; st. 1834, c. 121, § 45.</p>

<p>The location of a town or private way by the selectmen, or their order, must precede the issuing of the warrant to call the meeting for its acceptance. •</p> <p>A town or private way cannot bo proved by- parol, to sustain an indictment against an individual for obstructing it. The law on this subject was not changed by the itev. St. c. 25, § 101.</p> <p>The records of a town which are not admissible to prove the existence of a legal town way, cannot be admitted to show the limits, or outside lines, of the road,.although it may have been proved that a road had been actually travelled sonmwhere witliin those limits for more than twenty years.</p>

Assumpsit upon a promissory note, dated Feb. 1-8, 1831, for $600,00, signed by J. W. Ripley, since deceáséd, as prinpal, and by the defendant as surety, payable with interest annually. The writ is dated Jan. 9, 1841. With the general issue, the statute of limitations 'was pleaded.

<p>A recognizance entered into by a party, conditioned “ to prosecute with effect an appeal, made by him, at the Court of Common, Pleas,” at the next Supreme Judicial Court, when the statute in force at the time required that the party appealing should recognize “ to prosecute his appeal, and to pay all such costs as may arise in such suit after such appeal,” not conforming to the provisions of the statute, is void as a statute recognizance.</p> <p>It is denied, that a recognizance to prosecute an appeal is good here at common law.</p> <p>If however it should be considered that the recognizance is good so far as it conforms to the statute, a condition “ to prosecute his appeal,” is performed by entering the action at the next Supreme Judicial Court, and afterwards becoming nonsuit.</p> <p>Mem. — Tehney J. did not sit in the determination of this case.</p>

<p>A donatio causa mortis is good, although a chose in action, accompanied by a mortgage as collateral security therefor; and notwithstanding it were in trust for the benefit of others besides the donee.</p> <p>A married woman may be the recipient of such a donation, provided her husband was assenting thereto, even if he was the debtor.</p> <p>And if the donation has once vested for the benefit of the donees, it is out of the power of the husband to alienate it, to ibeir prejudice.</p> <p>In an action on the mortgage by the administrator of the alleged donor, the husband of a donee, who had released to the defendant all interest in and claim to the note and mortgage, reserving all claim upon the administrator for any money paid to him, was held lo be a competent witness for the defendant.</p>

<p>By the provisions of the poor debtor act of 1839, c. 412, the oath should not be administered to the debtor, who has on his examination disclosed “ any bank bills, notes, accounts, bonds, or other chose in action,” until he has performed all the duties which the statute requires of him, one of which is to choose an appraiser, “ to appraise off sufficient property thus disclosed to pay the debt.”</p> <p>And in such case, where the debtor is not entitled to have the oath administered, if the justices proceed and administer it, it is illegally taken and wholly inoperative, and will not be considered as a performance of the condition of the bond.</p> <p>And if the parties, in the suit upon the bond, submit the case for decision upon an agreed statement of facts, which does not show that an appraisement was made, such agreement must be presumed to state all the facts material to a correct decision of the case ; and the Court cannot imply that any appraisement was made.</p>

<p>A deed of land, absolute and unconditional in its terms, but made, as appears by minutes of the grantees in managing their own affairs, to secure the payment of a loan of money, is not by our statutes a mortgage; and when the time stipulated for the payment of the money has elapsed, and payment has not been made, the estate becomes absolute in the grantees; although a Court having general equity jurisdiction might regard such a conveyance as a mortgage.</p> <p>Banks, incorporated under the laws of this State, may receive real estate as security for a loan, or in payment of debts due.</p> <p>And if land be conveyed to a bank as collateral security for the payment of money, and the title has become absolute in the bank by the neglect of the grantor to make payment at the stipulated time; and afterwards, at the request of the grantor, the bank conveys the land to a third person, on payment by the latter of the amount due; this is not a redemption of the property, so as to restore the title to the original grantor.</p> <p>And if a purchaser, bona fide, of the grantee of the bank without the knowledge of usury in any transaction in relation thereto, brings his writ of entry, demanding the land, against one who was not a party or the legal representative of a party to the usury, it is not competent for the latter to set up as a defence, that there was usury in the transactions between the person requesting the conveyance and the grantee of the bank.</p> <p>The liability of one who had been a stockholder in the bank, but who had sold out his interest three months before he was offered as a witness for the bank, is too remote, uncertain and contingent to render him incompetent.</p>

<p>Where file wife became entitled to the premises, as heir at law, during her coverture, and her husband conveyed his life estate therein, and his grantee continued in possession for more than thirty years, the husband still living; she may, after the decease of her husband, make an entry and recover the land.</p> <p>Tims, where the demandant, on the dentil of her father, iu 1800, became entitled to one fifth of the demanded premises, as ail heir at law, she then being the wile of II. M. who soon afterwards convoyed u h'ny right to the estai;} and gar o a deed of it in which his wife did ;not join and his grantee entered imo possession, and he and those claiming muter him, of whom the tenant is one, have since continued in possession; and in 1832 the bus-band of the demandant died, and in 1840 she made an entry, and brought Ihiosnit; It was held, that by the deed of the husband bis grantee could hold his life estate; that the demandant could not lawfully enter or interrupt Ibis possession during the life of her husband; that her rights were not barred by the statute of limitations; and that she was entitled to reeov er.</p> <p>But if the demandant and her husband bad been disseised during the coverture, they would have liad a right to enter immediately upon the disseisor, mid from that time the statute of limitations would have commenced running against the husband, and against the wife also,</p> <p>if a division of the real estate of an intestate among the heirs be commenced by virtue of proceedings in the Probate Court, but do not «appear to have been accepted or recorded in that Court, and the records are apparently entire, and no loss of any papers of the probate office is shown, and no assent of one of the heirs at law «appears; the division will not bo binding upon such heirs, «although an occupation by others according to it lias continued for more than thirty years.</p>

<p>Debt on a poor debtor’s bond dated February 16, 1841. It was contended by the defendants, that the condition of the bond was performed by legally citing the creditor, disclosing the state of his affairs and taking the poor debtor’s oath, in manner provided by law. Several exceptions were taken to the proceedings, in behalf of the plaintiff, but the decision of the Court rested wholly on the consideration of one of them. The facts and arguments in relation to the others are therefore omitted. The facts in relation to this point are stated in the opinion of the Court. It appeared by the papers, that the counsel for the creditor, after claiming the right of the creditor to select one of the justices, and after it had been denied, and after the justices selected by the debtor had proceeded in the examination, “ and not waiving any legal objections,” proposed certain interrogatories to the debtor. It was agreed, that if the proceedings constituted a legal defence, a nonsuit was to be entered ; but otherwise judgment was to be rendered for the amount of the legal liability of the defendants ; unless the Court should also be of opinion, that the defendants are entitled to have the plaintiff’s damages assessed by a jury, in which event the case was to be sent to a jury.</p> <p>contended that the creditor should have been permitted to select one of the justices to take the disclosure of the debtor, and decide upon his right to take the oath, agreeably to the provisions of the Revised Statutes, c. 148, 46. Because this right was denied, the justices had no power to act, no jurisdiction, and their proceedings are void.</p> <p>The Revised Statutes had long before been published, and had been in operation five days before the attempt to take the oath. It might be sufficient to say, that whether the Rev. St. or the preceding ones are to govern, we are equally entitled to recover. If the former, the proceedings are void, because we were denied the right to select an appraiser : if the latter, then we should also recover, because the oath provided by those statutes was not administered, but a different one.</p> <p>All the statutes in relation to poor debtors, before existing, were repealed by the Revised Statutes ; and those alone regulated the rights of the parties. As the course pointed out in those statutes to constitute the Court, or tribunal, to act in the matter was not pursued, the justices had no power to act, and any adjudication made by them is entirely void. Smith, v Rice, 11 Mass. R. 507 ; Putnam v. Long ley, 11 Pick. 487 ; Knight v. Norton, 3 Shepl. 337; Granite Bank v. Treat, 6 Shepl. 340.</p> <p>Putting jnterrogatives, reserving all rights, cannot make illegal proceedings valid. 1 Wils. 420; 1 W. Black. 451.</p> <p>The defendants are not entitled to have the damages estimated by a jury under the Rev. St. c. 115, <§> 78. Here was no Court qualified by law to administer any oath, and of course, no oath was administered according to law. To enable the debtor to have the damages assessed by a jury, the oath should have been administered by magistrates competent to act, and some error in the intermediate proceedings should have existed. Judgment should be rendered agreeably to the provisions of the Revised Statutes, c. 148, § 39. Stone v. Tilson, argued in this county, 1841.</p> <p>said that the statutes of 1835 and 1836, on the subject, became dead letter matter-, after July, 1841. The oath was administered five days after the Revised Statutes took effect. That provided by those statutes was therefore rightly administered.</p> <p>The justices must be selected before the time for the examination of the debtor, and may be, as soon as notice is given. The law will not presume, that any act was wrong, until it is shown to be so. In the absence of proof, it will be presumed that the selection was made at least six days before the examination, when the debtor had by law the right to select both.</p> <p>But the Rev. St. c. 148, § 46, do not necessarily give the right to the creditor to select. One justice may be selected by the creditor, or in some other mode.</p> <p>The law makes the magistrates judges of the whole matter. They are to determine all these questions, and their decision is made final and conclusive. If the justices err in judgment, the sureties of a poor debtor, who sign his bond from motives of humanity, are not made by the legislature responsible for the payment of the large debt of a man wholly destitute of property. Churchill v. Hatch, 5 Shepl. 411.</p> <p>Had there been any error in the selection of the justices, the act of the plaintiff in going into the examination of the debtor before them, and putting interrogatories, was a waiver of all objections.</p> <p>However, in any view of the case, the damages, if any, are to be assessed by a jury. If there be any error in the proceedings, the damages are to be assessed by a jury in all cases where the oath has been taken, and the debtor thus shown to be destitute of property. Such is both the letter and spirit of the law.</p>

<p>Where the seller sends to the purchaser a different article from that contracted for, and on learning the fact, directs it to be sent back by the first ship, and it is sent coastwise in conformity with the directions, but is lost at sea; the purchaser may recover back the consideration money paid, although no bill of lading was taken, or letter of advice sent.</p> <p>Neither the st. 1821, c. 85, nor the Rev. St c. 133, authorizes the taking of a deposition during the sitting of the Court, to be used at that term, because the deponent wishes to go out of the State.</p> <p>Where a Judge, in bis discretion, grants a commission to take a deposition in term time, because the witness is about to go out of the State, with the express reservation that the admission of the deposition should be subject to the discretion of the Court, he has the power to reject the deposition, when offered in evidence.</p>

Assumpsit on two drafts, or bills, each dated July 2, 1836, drawn by J. P. Lee on R. M. N. Smyth, payable in ninety days from date and to the order of Lee, indorsed by him, by Jesse Aiken, and the defendant, accepted by Smyth and discounted by the plaintiffs. They were afterwards indorsed by the cashier of the plaintiffs and of other banks. Smyth, the acceptor, lived at Bangor.

<p>When land has been flowed by means of a dam erected for the use of a watermill; while the owner of the land suffers no damage, and can therefore maintain no suit or process, 'or in any way prevent such flowing, he cannot be presumed to have granted, or in any manner to have surrendered or relinquished any of his legal rights; and no prescriptive right to flow his lands without payment of damages.can be acquired against him.</p> <p>But where damages have been occasioned by the flowing, and the owner of the land flowed has had -the power to maintain a process to recover them, a prescriptive right to flow the land without payment of damages may be acquired.</p> <p>If a dam be erected which retains the water of a pond and causes it to overflow the lands of others, but no mill is carried by the fall of water thus created; and such dam is only necessary to raise and preserve the water for the use of mills, lower down on the stream and carried by other waterfalls, at certain times when the water usually flowing in the stream has become diminished; the only remedy is by proceedings pursuant to the statutes for the support and regulatipn of mills.</p> <p>One who is neither the owner or occupant of a watermill for the use of which the water has been raised or continued, nor the owner or occupant of the milldam, is not liable to the owner of the land flowed, although he may be benefitted by the flow of the water.</p> <p>If a blacksmith’s shop in which the bellows is worked by a waterfall, can be considered a mill, yet if there is only a right to use the water for that purpose at the will of the owners or occupants of the dam, and at such times and under such restrictions as they may please to prescribe, the owner of such shop is not liable to the payment of damages for the flowing of the water. It would not be a mill for whose use the water was either raised or continued.</p> <p>In a complaint under the statute to recover damages to land, occasioned by its being flowed by a dam erected for the use of mills, the question whether ■ the complainant has suffered any damages, is to be determined only when the amount of damages is under consideration.</p> <p>A lot of land was conveyed, and described as bounding on one end upon a pond; and it appeared that there was a narrow cove or arm of the pond extending from the pond across the lot; and that if the laud conveyed was limited by this cove, that the lines would not correspond with those of the adjoining lots, and there would remain a portion of land not conveyed, between the cove and the pond. It was held, that the land granted extended across the cove to the main body of water called the pond.</p>

Writ of entry demanding against Ames Foss and Silas Foss fifty acres of land in Winslow. Ames Foss pleaded a special non-tenure on which issue was joined. Silas Foss disclaimed the west half of the lot, and defended the other half. The disclaimer was accepted by the plaintiff, and issue joined as to the part defended. He also put in a claim for betterments, and the demandant put in a claim to have the value of the land estimated with the improvements.

<p>This was a bill in equity, and came before, the Court on bill, answers, and proof. The substance is given in the opinion of the Court.</p> <p>This case was argued, it is said, at the May Term, 1841, when the present Reporter was not in office ; and was again argued at the May Term, 1842,</p> <p>Allen, cited Buck v. Pike, 2 Fairf. 9; Conner v. Lewis, 16 Maine R. 275; Gardiner Bank v. Wheaton, 8 Greenl. 373; Powell v. Mon. fy Br. Man. Co. 3 Mason, 347; Jewett v. Palmer, 7 Johns. C. R. 65.</p> <p>Rand contended, that the answers explicitly denied every material allegation in the bill, and that there was no sufficient proof in the case to contradict and destroy the effect of the answers.</p>

Three objections were made to the right to maintain the action, but they were overruled by the justice, and judgment was rendered in favor of the plaintiff. These three objections were assigned, as causes of error. The first was, that since the militia act of 1 834, no action can be maintained against a minor. St. 1834, c. 121, 33, was cited, and relied on. The second was, that there was no proof, that the defendant ever joined the company.

This was a writ of error brought to .reverse the judgment of a justice of the peace, imposing a fine upon the plaintiff in error for neglecting to appear at a company training.

The suit was brought on July 18, 1839, to recover the amount of a promissory note, for which, it was alleged, Samuel Weston, on whose estate the defendant was administrator, was liable as one of several persons associated as the Fairfield Mill Company. The defendant pleaded the general issue, and by brief statement, that the estate of his intestate was, before the commencement of this suit, represented to be insolvent, and so decreed, and commissioners appointed.

<p>A person living on a plantation and having his home there at the time of its incorporation into a town, prior to the Massachusetts settlement act of 1793, c. 34, thereby acquired a settlement in such town.</p>

This was a bill in equity against Samuel Williamson, Joseph White, Samuel Hutchins, and James L. Child; and alleged, that in August, 1834, White being the owner of certain land in Pittstou, gave to one Dudley and his assigns a bond with condition to convey the land to Dudley on the payment of certain sums by March 9, 1838, and Dudley went into possession thereof; that on March 9, 1838, White commenced a writ of entry against Dudley; that this action was referred to W.…

This was an action of trespass brought against the defendant’s intestate, as sheriff of this county, for an alleged trespass committed by Francis Davis, Jr., one of bis deputies, in attaching a quantity of goods formerly owned by Patty & Betsy Cromett, on writs against them in favor of William Legg &. Co. and of S. E. & J. Brackett.

Debt on a probate bond, in which the defendant was surety for Sarah Crumpton, now deceased, as executrix of the will of her late husband, Samuel Crumpton. After the bond and will had been read, the plaintiff produced and examined sundry witnesses to prove that the executrix did not faithfully inventory all the personal estate.

<p>Where it was proved, that a notification, stating the facts in relation to a pauper, as required by the act for the settlement and relief of the poor, St. 1821, c. 122, § 17, and properly directed to the overseers of the town where his settlement was alleged to be, was put into the postoffice on a certain day, and did arrive at the postoffice in the town to which it was directed, and was actually received by the overseers, but the precise day did not appear; it was held, that in the absence of all other evidence, the presumption of law was, that the notice was received in due course of mail.</p> <p>The arrival of the notice at the postoffice in the town to which it is directed, is made by the St. 1835, c. 149, equivalent to a delivery to the overseers, and the two months within which an answer is to be returned back, commence from such arrival of the notice.</p> <p>It is not necessary that the postage on the letter in which the notice is sent, should be paid by the town sending it.</p> <p>After two years from the time a notice is given, where no judicial decision respecting the settlement has been had, and where no action, or process, is pending between the parties in relation to it, such notice becomes wholly inoperative, and cannot afterwards vary the rights of the parties.</p>

<p>This was a suit instituted to recover for supplies furnished to Lydia Day and her son, James Day. It appeared that Lydia Day was a daughter of Benjamin Day, and the only settlement attempted to be proved was derived from her father. Notice, and a denial of settlement, were admitted.</p> <p>The plaintiffs, at the trial before Shepley J., alleged that Benjamin Day acquired a settlement in Sidney by the fourth mode provided by the act of Massachusetts, passed February 11, 1794, by having an estate of inheritance or freehold in that town, and dwelling and having his home there, of the clear yearly income of three pounds, and taking the -rents and profits thereof three years successively. There was testimony introduced by the defendants tending to prove that during some of the years while he held the' estate, he had received small supplies as a pauper, and the jury were instructed that after the time when he first so received supplies, if he received them afterward, yearly, he could not be regarded as having an estate, and as taking the rents and profits of it, in the manner required by the statute. ' •</p> <p>There was testimony proving that during other and more than three successive years, he resided and took the profits of an éstate; and that the same 'was not taxed in'the town of Sidney during those years. And the plaintiffs contended that the yearly net income should be ascertained upon the basis that it was not subjected to taxation, and requested the. Judge so to instruct the jury, but he declined, and instructed them that it was to be ascertained by deducting all expenses to which it might necessarily and legally be subjected. The jury found a verdict for the defendants, which was to be set aside, and a new trial granted, if these instructions or refusal. to instruct’ were erroneous.</p> <p>and cited ’on the first point, Andover v. Salem, 8 Mass. R. 436; Granby v. Amherst, 7 Mass. K. 1; Somerset v. Dighton, 12 Mass R.' 383. And on the second point, Western v. Leicester, 3 Pick. 198; Groton v. Boxborough, 6 Mass. R. 50. •</p> <p>and cited on the first point, Brewster v. Dennis, 21 Pick. 233 ; East Súdbury v. Waltham, 13 Mass. R. 460 ; East Sudbury v. Sudbury, 12 Pick. 1; Beetham v. Lincoln, 4 She'pl. 137. And on the second point, Groton v. Boxborough, 6 Mass. R, 50; Western v. Leicester, 3 Pick. 198;' Granby v. Amherst, 7 Mass. R. 1; jReading v. Tewksbury, 2 Pick. 535.</p>

<p>Assumpsit for two parcels of hemlock timber, delivered in July, 1838. It appeared that the timber in question, went to the use of the Kennebec Dam Company, Daniel Williams being at that time their treasurer, Amasa Hewins their agent for the purchase of timber, and the defendant their agent for hiring, directing and paying laborers. It appeared, that what was called dam paper, was written evidence of debt against the company, signed by their treasurer. For the plaintiff, Amasa Hewins testified, that being at the time agent of the company for the purchase of timber, early in July, 1838, he applied to the plaintiff, to purchase from him the first parcel of timber; that the plaintiff said, that he would not know the dam company in the business, or sell to them, but that if Daniel Williams would pass his word, as an individual, that ho should have the money at the time it was due from the plaintiff to Mr Southwick, of whom he bought the first parcel, and a part of the second, which would be in ninety days, He wins might have the timber. The witness further testified, that upon communicating these terms to Mr. Williams, he agreed to do as the plaintiff required. That not far from a month after, he had occasion to apply to the plaintiff for the second parcel, and he consented to sell it upon the same terms as he had before prescribed. That subsequently the witness stated to Williams, in the presence of the defendant, that the plaintiff would sell upon the same terms as before, but he had no recollection of then stating, that the plaintiff would have nothing to do with the dam company, and thought he did not. That Williams thereupon stated, that there was the agent, Lambard, and he must see to it. He then turned to the defendant, and repeated to him what the former bargain was. That the defendant then inquired, what security does the plaintiff want ? The witness replied, that which will produce the money in ninety days. That the defendant then said, he had the plaintiff’s note, does he want any better security than his own paper ? The witness said, that probably would be satisfactory. Thereupon the defendant said, I will exchange the plaintiff’s paper for dam paper, and should be glad to do so. The witness communicated this conversation to the plaintiff, who said that he wanted no belter security than his own paper, and that the surveyor agreed on might survey the timber, which was accordingly done in the presence of Hewins, but not of the plaintiff; and the surveyor made out the survey bill, as he did of the former parcel, as from the plaintiff to the dam company, and on the presentment of these bills to the treasurer, by the surveyor, he paid him for surveying. These bills were produced by the treasurer at the trial.</p> <p>Upon this evidence the plaintiff claimed to charge the defendant for the second parcel, conceding that he was not liable for the first. It was admitted that the plaintiff, in the fall of 1839, by his agent,, called upon the defendant and requested him to indorse the amount due for the timber on plaintiff’s notes,, but the defendant refused to do it.</p> <p>It was proved by the defendant • that he held, at the time, paper against the plaintiff, in which others were also interested, but upon which his claim against the plaintiff exceeded the value of the timber, and that the same paper had been put in suit, and the amount due thereon collected and paid to the.defendant, and that each of the notes much exceeded the value of the timber. The survey bill was from the plaintiff to the Kennebec Dam Company.</p> <p>And Daniel Williams testified that he had ho .doubt the survey bill was brought to him by the plaintiff, although he did not recollect the fact. . That he should have given him dam paper therefor, if he had desired it. He further said the plaintiff had said to him, he indorsed' for him, a note which the plaintiff said he procured to be discounted at the Augusta Bank, but for what amount, whether for the first parcel or more the plaintiff did not state. It appeared that during that season, from time to time, the defendant received from the •treasurer large sums of money designed and used for the payment of the laborers. It appeared the dam company did not at that time pay their paper promptly, that their credit had become doubtful, and they.had previously mortgaged a considerable part of their personal property. The following year, 1839, the dam was so seriously injured, that the Company became deeply insolvent.</p> <p>Daniel Williams further testified that they were not sued in the season of 1838, and that if the plaintiff had that year furnished the defendant with dam paper for the timber, he thought the defendant might have protected himself. But in fact he had not collected or secured the amount of a prior debt due himself.</p> <p>The counsel for the defendant contended that the promise proved was collateral, and, there being no memorandum in writing, void by the statute of frauds. As evidence of this they relied upon the form of the general bill and the demand made by the plaintiff upon the treasurer for payment, but principally upon the terms of the proposition, proved, as he contended, to have been made by the' defendant, which his counsel insisted necessarily implied, that the sale was made to the company, and that the plaintiff was first to receive of them the usual evidence of debt. Upon this ground of' defence, Whitman C. J.'then presiding, instructed the jury, that if they were satisfied the timber was furnished on the credit of the defendant, and not on the credit of the dam company, the promise was original and not collateral; and that the presentment of the bill to the treasurer, and the demand on him for payment, did not. impair the plaintiff’s rights against the defendant, who would have been thereby relieved, if the application had been successful.</p> <p>There being no proof that the plaintiff had procured dam paper for the timber, or had offered such paper to the defendant to be exchanged for or indorsed on the plaintiff's own paper, the counsel for the defendant: requested the presiding Judge to instruct the jury, that the action was not maintained. Upon this point, the Judge instructed the jury," that if they believed the understanding of the parties to have been, that the plaintiff should procure what was called dam paper, and present it to the defendant, to be exchanged for his (the plaintiff’s) notes, the action was not sustained. But that they would consider whether it was reasonable for them to believe such to have been, in effect, the agreement between the parties. The contracts were to be interpreted according to the understanding of the parties thereto; and that if the plaintiff did not understand, at the time, that he was first to procure dam paper and present it to be exchanged, and the defendant was aware of this, it could not be considered to be the agreement that he should do so; that they would take into view all the circumstances in evidence in the case, and draw their own conclusions from them ; that the defendant, if he had paid the plaintiff’s bill for the second parcel of timber for the use of the dam company, would have equally as good ground of claim against the company, as if he had obtained dam paper; and that the procuring of such paper might have been but a useless ceremony. And if they were satisfied that the original credit was given to the defendant, and that it was not agreed between the parties that the plaintiff should first procure what was called dam paper, and present it to the defendant, to be exchanged as aforesaid, the plaintiff might be considered as having made out his case.</p> <p>■The jury thereupon returned their verdict for the plaintiff, and the defendant excepted to the foregoing rulings and instructions.</p> <p>argued in support of the grounds of defence taken by him at the trial; and contended, that the rulings and instructions were erroneous. On the point, that the promise was collateral, he cited 2 Stark. Ev. 595, and cases there cited; Matson v. Wharam, 2 T. R. 80.</p> <p>said that the question, whether the promise was original, or collateral, was one of fact, and not of law. The true question is, to whom was the credit given ? 1 Stark. Ev. 407. It was- not a mere interpretation of language, but an inference to be drawn from proof of many facts, and credit to be given to several witnesses. This is the exclusive province of the jury.</p> <p>The contract no more required, that the plaintiff should procure dam-paper, and present it to the defendant, than that the defendant should procure it, and present it to the plaintiff. Besides, the request of the counsel for the defendant was substantially complied with.</p>

Case against Norris, as a deputy sheriff, for an alleged neglect of duty. The writ in this suit was dated June 1, 1840. The general issue was pleaded, and a brief statement filed, setting up the statute of limitations in defence.

<p>This was an action, commenced Jan. 11, 1841, brought to recover the amount expended for supplies furnished to several paupers, alleged to have had their legal settlements in Dear-born.</p> <p>Dearborn had once been an incorporated town. On March 22, 1839, a large portion of the town was annexed to Belgrade ; on Feb. 29, 1840, a large part of the residue, with other land, was incorporated into a new town by the name of Smithfield; and on April 20, 1841, the act incorporating the town of Dearborn was repealed, and the corporation, as a town, dissolved; the remaining territory was made a plantation, and made liable for the debts of the town.</p> <p>The overseers of the poor of the town of Belgrade, and the assessors of the plantation of Dearborn, once the town of Dearborn, agreed to submit the questions of settlement, as to the paupers named in the suit, to the decision of the Court upon the following statement of facts.</p> <p>William Rowe had lived and' had his home for more than five years on that part of the town of Dearborn, which was annexed to the town of Belgrade by the act of 22d of March, 1839, but had removed from said town of Dearborn into the original town of Belgrade, prior to said annexation, and was living there at the time, but had not lived there for five years.</p> <p>Valentine Cook and family, including Eleazer Bickford, lived and had their home on that part of Dearborn, which was incorporated into the town of Smithfield by the act of 29th February, 1840, for more than five years prior to the fall or winter of 1832, and then moved into that part of the town of Dear-born which was annexed to the town of Belgrade by the act of the 22d of March, 1839, and remained there until May, 1837, supporting themselves. They then received some supplies from the town of Dearborn, for which the town retained out of his surplus revenue the same amount the next April. Valentine Cook died in Nov. 1837, leaving his family still living on that part since annexed to Belgrade. At the time of the annexation they were supported by the contractor for the support of the poor for the town of Dearborn, he and they residing upon the territory annexed to Belgrade.</p> <p>John Brooks was an inhabitant of the town of Dearborn, and of that part which was, in the spring of 1839, annexed to Belgrade, and sometime in the month of November or December, 1838, went by virtue of a bargain, made in his behalf by the keeper of the poor in Dearborn, to live in Rome. The bargain made, was, that he might go and live there during the coming winter and until the first of May, provided he should be obliged to do nothing except to cut firewood at the door in pleasant weather, and take care of the few creatures at the barn. When the proposition was made to Brooks, he would not agree to go unless he might return, if he should not like to live there as well as he should where he then was. Sometime in the month of April, 1839, Brooks came back to the same house, and brought all his wearing apparel, which was all the property he owned. Brooks would'not go to Rome without the consent of .the keeper of the poor, at whose house he then was, that he might come back, if dissatisfied. Such permission was given to- him, and that was the principle he went there upon, and accordingly in April, he returned to the same house from which he went, stating that the farm liad been sold, and that he was not wanted any longer.</p> <p>Eleazer Bickford, a minor, had a legal settlement derived from his parents in that part of Dearborn now Smithfield, but had removed from the town of Dearborn, a number of years prior to the incorporation of Smithfield, but had gained no settlement elsewhere. The parties made a statement of the amount expended by the plaintiffs for the support of each of the paupers.</p> <p>It was further agreed, that Belgrade should recover full costs in said action up to the time of the offer, which Dearborn made to be defaulted for a certain sum, likewise for all other costs, if Belgrade shall be entitled to all or any part of said sums claimed for the support of said paupers; but if it be the opinion of the Court, that Belgrade is not entitled to any part of the sum claimed, then Dearborn shall be entitled to full costs from the time of said offer to be defaulted.</p> <p>and cited New Portland v. Rumford, 13 Maine R. 299; and Smithfield v. Belgrade, not yet reported. (1 Appleton, 387.)</p> <p>and cited as to the settlement of Rowe, Hallowell v. Bowdoinham, 1 Greenh 199. As to that of Cook, Fitchburg v. Westminster, 1 Pick. 144; New Portland v. Rumford, ] Shepl. 299. And as to that of Brooks, St. George v. Beer Isle, 3 Greenh 390.</p> <p>He also contended, that by the repeal of the charter and dissolution of the corporation, as a town, the inhabitants of the plantation of Dearborn were absolved from all liability to support paupers belonging to the former town of Dearborn.</p>

Writ op entry, demanding a tract of land in Fayette. A statement was made by the parties from which it appeared, that the land was the property of Isaac josselyn, deceased. The demandants are his heirs at law, and the tenant has the title of Lois josselyn, the widow, derived under the will. The will was dated December 2, 1814, and was duly proved and allowed.

Exceptions from the Middle District Court, Rehington J. ¡presiding. This was an indictment against the defendant, containing two counts. The first count alleged that the defendant on the 20th of April, 1841, beat in the windows and broke the glass of a building, being a dwellinghouse, the property of one David W. Jackman, and that said Whittier had not the consent of the owner of said house for the doing said injuries.

<p>Trespass quare clausum. The trespass was alleged to-have been committed upon a five acre lot, No. 14, in Gardiner.</p> <p>At the trial, before Whitman C. J. at the adjournment in March, 1842, the plaintiffs produced a deed to themselves, purporting to have been executed by John Jeffries and others, by their agent Charles Vaughan, dated April 1, 1841, and proved the execution by Vaughan, and attempted to prove the execution of the powers of attorney authorizing the conveyance. They proved the handwriting, of a subscribing witness to one of them, and thereupon the deed and power of attorney were read to the jury ; but as it afterwards appeared that the power was executed by a person as an executor, and there was not proof that he was such, the deed and power were ruled out of the case. The plaintiffs then attempted to prove that they and their father John Moore, under whom they claimed, had been in the exclusive and uninterrupted ■ possession of the lot for more than twenty years next before the bringing of the suit, and adversely to the defendant and those under whom he claims. For this purpose they introduced ten witnesses, whose testimony is given in the exceptions, and sufficiently stated in the opinion of the Court. The plaintiffs also introduced a written agreement, signed by John Moore, their father, dated Dec. 14, 1819, and proved its execution, and delivery to Charles Vaughan, agent of Jeffries and others, wherein he contracted to purchase lot No. 14 of them. The defendant objected to the reading of this paper to the jury, but it was admitted by the J udge. It was proved, that the land in controversy had been faxed to Else Moore, in 1814, 183 5 and 1816, but that in 1817, and for several successive years, it was taxed to John Moore.</p> <p>The defendant then proved and read to the jury a deed from Else Moore and others, bearing date Feb. 11, 1841, purporting to be a conveyance of lot 14 to him. He also introduced nine witnesses, whose testimony also appears in the exceptions, to disprove the title of the plaintiffs, and to set up one in himself. This is also sufficiently noticed in the opinion of the Court.</p> <p>There was also a motion for a new trial because the verdict was against the evidence.</p> <p>Thereupon the Court instructed the jury, that to constitute a right to maintain this action, the plaintiffs must make out some kind of a title. That possession alone would be sufficient to maintain it against a mere trespasser without any pretence of title. But that against those who exhibited evidence of title something more was necessary. That if the plaintiffs had shown to the satisfaction of the jury, an adverse, exclusive and notorious possession in themselves and the ancestor under whom they claim, of twenty years duration, next before the trespass complained of in this action, a sufficient title was made out on their part to entitle them to recover; provided the act complained of as a trespass were proved. To constitute such adverse possession, that it was not necessary for the plaintiffs to show that they and their ancestor had kept the lot within fence all that time. That it was only necessary the possession should be notorious, so that those who had any claim to the land must have had knowledge of it. That if in the present case, the possession of the plaintiffs and of their ancestor was such that Else Moore and her other sons must have known it, and that it was intended to be adverse and exclusive, and did not for the term aforesaid, attempt to interrupt it; such possession would bar them from a right of entry thereafter. That the plaintiffs, as the case was presented to the jury in this trial, must rely upon such an adverse possession. If it was not made out to the satisfaction of the jury the plaintiffs could not recover. That the evidence to this point was conflicting. That it was their duty to reconcile if they could. If they could not they must consider of the weight of testimony on the one side and on the other, of the characters, standing and credibility of the witnesses. That if they found the testimony on one side of a negative character, and on the other of a positive character, the latter was rather to be allowed to be of weight than the former. But that there were degrees of weight to be attributed to negative testimony, depending upon circumstances. In some cases that it would be entitled to very little weight, while in others it might be nearly or quite equal to positive testimony. That it would depend very much on the opportunity which the witness had for knowing, and upon the attention which it might appear that he paid to the incident about which he might be called to testify.</p> <p>The jury were further instructed upon a suggestion made by the counsel for the defendant, that if Else Moore gave up the lot in question, or abandoned it to her son John, upon his making claim to it, and he went into possession by her consent, and she suffered him to go into the exclusive possession of it, and to continue such possession for the term of twenty years, she could not, nor could any persons under her, enter upon the land without being liable as trespassers. But that if John merely went into possession under her, without any such surrender or abandonment on her part, it would be otherwise, however long his possession might continue.</p> <p>The Court further instructed the jury, that if they were satisfied lot No. 14 had been taxed to said John Moore during his life, from 1817 or T8, they would judge whether it was reasonable for them to believe, that Else Moore and her other sons must have known it or not, and if they did' it might furnish evidence tending to show an adverse possession in him.</p> <p>The Court further instructed the jury, that the deed of Jeffries and others to the plaintiff's, was wholly out of the case, the execution thereof not having been proved; and if in the case, would avail the plaintiffs against Else Moore and those claiming under her.</p> <p>And finally, if they were satisfied, that said John and his heirs, the plaintiffs, had for more than twenty years before the trespass complained of was committed, been in the uninterrupted and adverse possession of said lot No. 14 exclusively and notoriously, and if the commission of the trespass was fully proved, the verdict should be for the plaintiff’s, otherwise it should be for the defendant.</p> <p>The jury returned a verdict for the plaintiffs, and the defendant filed exceptions to the admissions of evidence, and instructions and opinions of the Court.</p> <p>That the contract to purchase of Jeffries and others was improperly admitted. The plaintiff's claimed title by possession, and this paper had no tendency to prove the issue, but merely some claim under supposed owners. It was signed only by the hither of the plaintiff's, and is no better than his declarations.</p> <p>That the instiuclion, that fencing was not necessary in order to acquire a title by adverse possession of land on which were no buildings, was erroneous. Blake v. Freeman, 13 Maine R. 130; Ken. Pur. v. Springer, 4 Mass. R. 416.</p> <p>That the definition of disseisin was erroneous. It allowed the statute of 1821, c. 62, § 6, to act retrospectively, when it should have had but a prospective operation. Ken. Pur. v. Laboree, 2 Greenl. 275.</p> <p>The instruction, that the jury should take into consideration the character and standing of the witnesses was erroneous. If the character for truth is unimpeachable, every witness stands alike.</p> <p>That the possession of John Moore by the consent of his mother, could not disseise her.</p> <p>Taxes may legally be put to the owner or the occupant of land, and the assessment to one or to the other could not affect the question of disseisin.</p> <p>The heirs, and not the widow, succeed to the rights of an intestate in real estate. The possession of John Moore was that of all his brothers and sisters, and he could thereby acquire no title by disseisin against them. 15 Maine R. 455 ; 2 Fairf. 309; 5 Pick. 135; 12 Johns. R. 367.</p> <p>and replied to the argument for the defendants. The remarks of the Judge in relation to the weight of evidence, were, as was said, but commentaries upon the testimony, and not subject to exceptions, as matter of law. On this point were cited Ware v. Ware, 8 Greenl. 42, and Carver v. Astor, 4 Peters, I.</p>

<p>Domicil depends on residence and intention; both are necessary to constitute it; and where it is once fixed, it is to continue until a determination to reside elsewhere lias been carried into effect.</p> <p>And in determining the intention of an individual, when he may move from one place to another, the character of his home, his mode of life, his habits, and his disposition, may appropriately be taken into consideration.</p> <p>To acquire a settlement by residence in a particular town, the person must actually have resided there continuously for the space of five years, intending to make that his home and place of residence. Occasional absences, however, from there, for short periods, during the time, without any intention of taking up bis abode elsewhere, or of abandoning his residence there, would not interrupt the running of the five years necessary to gain a settlement. But if during any part of the five years, he had determined to abandon bis residence, and had actually carried his determination into effect, for ever so short a period, it would prevent his gaining a settlement.</p>

<p>The demandant, in her writ, claimed dower in the premises, as the widow of William Vance, deceased. She proved thé marriage, seisin of the husband during the coverture and until his death, and a demand of dower of the defendant, as tenant of th.e freehold.</p> <p>.The tenant then read in evidence an indenture between the demandant and the said William Vance, of which a copy of the material parts follows.</p> <p>“ This indenture of two parts, made the fourth day of August, in the year of our Lord one thousand eight hundred and thirty-two, by and between William Vance of Readfield, in the county of Kennebec, Esquire, of the first part, and Charity Stafford of said Readfield, single woman, of the second part, witnesseth, that for and in consideration of a marriage intended to be shortly had and solemnized between the said William Vance and the said Charity Stafford, and the sum of one dollar to be had and received by the said William Vaneo, as a marriage portion with the said Charity Stafford, and for that a competent jointure may be had, made and provided for the said Charity Stafford in case the said marriage shall take effect, and for the settling and assuring the lands or tenements hereinafter mentioned, and other pecuniary compensation, to and for the use of her the said Charity Stafford, agreeably to the terms and for the purposes hereinafter mentioned, limited and declared, pursuant to the agreement made upon the contract of the said intended marriage, he, the said William Vance, hath granted, bargained, alienated, and confirmed, and by these presents doth grant, bargain, alienate and confirm unto the said Charity Stafford, to have and to hold in her actual possession, a certain piece or parcel of land, with a dwellinghouse thereon, situated in said Readfield, (described.) To have and to hold the said demised premises with their appurtenances to her, the said Charity Stafford, and assigns, for their use and benefit as hereinafter mentioned, limited, expressed and declared, that is to say, to remain for the use and behoof of the said Vance and his heirs until the said marriage between him and the said Charity Stafford, his intended wife, shall be had and solemnized, and from and after the solemnization thereof, to the use and behoof of the said Charity and her assigns, for and during the natural life of him, the said William Vance, and afterwards so long as she shall remain his widow, single or unmarried, only reserving to the said Vance the privilege during his natural life, in trust for her and for her use and benefit, to preserve and support the same and to prevent waste or destruction thereof, and to make such additions and improvements on the same, for the benefit of the said Charily, as he may think proper, all of which is to be for her use and benefit so long as she remains his widow', single or unmarried, and no longer. And also the said Vance has agreed and doth hereby agree that the said Charity shall have paid her out of his estate, by his heirs, executors or administrators, the sum of one hundred dollars a year, from and after his decease, to he paid in semi-annual payments, so long as she- shall. remain his widow, single and unmarried. The aforesaid rents, tenements, and sums of money to be for her jointure and in full satisfaction of her dower or thirds which she may claim or have in any lands, tenements, or hereditaments whereof or wherein he, the said William Vance, shall at any time during his life be seised or possessed of; and the said Charity on her part, in consideration of the jointure aforesaid and a bond bearing even date with this instrument, made and delivered to her by the said Vanpe in the penal sum of ten thousand dollars, conditioned for the quiet enjoyment of the aforesaid premises and the payment of the one hundred dollars a year, to be paid in semi-annual payments for the term aforesaid, hereby agrees and solemnly obligates herself never to demand, or receive, nor suffer any one for her or in her name, to demand or receive, any dower or thirds in any property, lands, tenements, or hereditaments which the said Vance may be seised or possessed of during - his lifetime or die seised or possessed of. In witness whereof the parties aforesaid have hereunto interchangeably set their hands and seals, this day and year last aforesaid.”</p> <p>This instrument was signed and sealed by the parties, was witnessed, and delivered to the said Charity Stafford a few days before their marriage.</p> <p>On August t18, 1841, the administrator of the estate of William Vance offered to the plaintiff performance of the said indenture,^aiid notified her that the house named therein was ready for her, but no money was produced, She replied, that she would have nothing to do with it.</p> <p>The counsel for the defendant contended, that the instrument made provision for the plaintiff in the nature of a jointure ; or if not, that it contained covenants, grounded on a valuable consideration, which barred her of dower in the estate of said William Vance,</p> <p>W hitman C. J. intimated a different opinion, and the defendant consented to be defaulted, reserving liberty to move to have the default taken off, in case the whole Court should be of opinion, that the indenture did provide for her a join* ture, or contain covenants, which would bar the plaintiff of her claim to dower,</p> <p>and contended, that the demandant Was not entitled to recover, because she had barred herself of dower according to the well settled and established rules of law.</p> <p>She was barred by the jointure secured to her by her expected husband, and accepted by her, shortly before the marriage. The jointure is good, and comes within the definitions found in the best authorities. Co. Lit. 36, b; Vernon’s case, 4 Coke’s R. 1; Moore, 103 ; Leon. 311 ; Bac. Abr. Jointure, B ; M Cartee v. Teller, 2 Paige, 511; Same case, 8 Wend. 267. An estate for life unless she determines it by her own act, is a good jointure. Same authorities, and 1 Cruise, Dower, c. 5, <§>20; Jointure, c. 1 ; 2 Bl. Com. 124 ; Bracton, 202; Bastings v. Dickinson, 7 Mass. R. 153 ; Gibson v. Gibson, 15 Mass. R. 106. There is no distinction between an estate for life and during her widowhood. They are alike a bar to dower, 4 Dane, 683 ; M’ Cartee v. Teller, 8 Wend. 267. When the jointure is granted and accepted before marriage, as in this case, no acceptance after the death of the husband is necessary. Acceptance afterwards is necessary only when the jointure is granted during the coverture. A jointure made and accepted before marriage could not be waived and dower claimed after the death of the husband. Co. Lit. Tit. 5, ■§> 41. Our statutes have not changed the law in this respect, as it was before their enactments, since the St. 27 Hen. 8, c. 10, $ 8.</p> <p>But if the demandant is not barred of her dower by tiie provision made and accepted as a jointure, she is effectually estopped and barred by her covenants in the indenture between herself and her late husband before the marriage. If she recovers her dower, the representative of her late husband, will be thereby entitled to recover of her the amount of the damage sustained by such recovery. This operates as a bar and rebutter to all claim in this suit. Gibson v. Gibson, 15 Mass. R. 106.</p> <p>and insisted, that the defence set up was wholly insufficient to preclude the plaintiff from maintaining her action.</p> <p>Our statute in force at that time on this subject, St. 1821, c. 40, provides that she may be barred of dower only “ where such widow, by her own consent, may have been provided for by way of jointure, prior to the marriage.” To bar her of her dower, it must be a bar to dower at common law, modified by the St. 27 Hen. vm, c. 10. The smallest estate which can operate as a bar to dower by way of jointure, is a life estate* Co. Lit. 36; 2 Bl. Com. 133. Hastings v. Dickinson, 7 Mass. R. 153. And the estate must not be fettered with any conditions. 1 Roll. Abr. 652; Co. Lit. 36. Here a very important condition was imposed. If one condition may be imposed, another may be, and thus the object of the law be entirely destroyed. It is said, that it is sufficient, if the estate is for life, unless she determines it by her own act. This qualification does not apply to the nature of the estate granted as a jointure. That must be for life at least. It applies only tasóme after act of her own, as by joining in an alienation of the estate by fine and recovery in England, or by deed with her husband here. Co. Lit. 36. There was no acceptance in this ease to bar the demandant. An acceptance, to have that effect, must be after the right of dower has accrued. To make an estate during widowhood a bar of dower, she must accept such estate after her right to dower has actually accrued by the death of the husband. 4 Kent, 55, 56, and cases cited. And this is laid down as law in the cases cited for the tenant in 2 Paige, 511, and 8 Wend. 267. And the jointure must be a fair equivalent for dower, both at law and in equity. 4 Kent, 56 ; Co. Lit. 37.</p> <p>The demandant is not estopped from recovering her dower by any covenants in the indenture.</p> <p>No right can be released, until it has accrued. This indenture was made before marriage, and she had no contingent, or possible claim to dower in this estate. If this is an estoppel, then any agreement under seal must also be an estoppel. It is the contract of marriage made afterwards, which gives the claim to dower.</p> <p>But had this been such jointure as would have barred the demandant of dower, at its inception, it could have no such effect now. Where the consideration, or any portion of it fails, the right of dower accrues. Hastings v. Dickinson, 7 Mass. R. 153; Gibson v. Gibson, 15 Mass. R¡ 106. The demandant has received nothing, although the time of payment had long been past before dower was demanded. A mere offer to pay, without the production of any mbney, is not a tender.</p>

<p>Where one enters into the actual possession of land under a deed thereof in fee, and holds the same premises adversely to the claim of any one else, he thereby pommits a disseisin against the title of any one not recognizing, the right of hjs grantor to convey to him in fee.</p> <p>If a tenant by the curtesy makes a conveyance of the estate in fee, he thereby creates a forfeiture of his estate, and the reversioner has an immediate right of entry.</p> <p>Prior to the late revision of the statutes, there was no provision that the right of entry of heirs should he extended to twenty years next after the time when an intervening estate would have terminated by its own limitation, notwithstanding any forfeiture thereof.</p>

Exceptions from the Middle District Court, Reoington J. presiding. Assumpsit against Hall and nine others. The plaintiff was formerly owner of a township of wild land, and had contracted with one Hanscom to erect a barn and a mill thereon.

This was a petition for a writ of certiorari to quash certain proceedings of the County Commissioners of this county.

Assumpsit against ten persons, doing business as a Company in making scythes. A. Gile was called as a witness by the defendants. He was objected to by the plaintiffs, and on their examination on the voir dire, he appeared to have had an interest in the event of the suit. The defendants then proceeded to examine him as to the sale of all his interest to R. B. Dunn, by deed. This was objected to by the plaintiffs, unless the deed or a copy of it from the registry was produced.

<p>Exceptions from the Middle District Court, Redington J. presiding.</p> <p>Debt on a poor debtor’s bond. The plaintiff proved the execution of the bond by the defendants; that an execution in his favor against Jason W. Moor was in the hands of Leighton, a deputy sheriff, for collection; that Leighton arrested Moor upon the execution; that while Moor was under arrest he went with the officer to the defendants, who on being requested so to do, signed the bond, and Moor was released from the arrest; that Moor was present at the time, but did not sign the bond ; that no reason was assigned why he did not; and that there were no conditions or agreement that the same should not be the bond of the defendants, unless signed by Moor. No evidence was offered to show that the condition of the bond had been performed. The defendants offered a witness to prove, that Moor, at the time was destitute of property. The plaintiff objected to the admission of the evidence, but the objection was overruled by the presiding Judge, and the witness was admitted, and testified that Moor was reputed to be poor. It appeared that the penalty of the bond was not quite double the amount of the execution and officer’s fe'es.</p> <p>The Judge instructed the jury, that this was not a bond taken pursuant to the poor debtor acts of 1835 and 1836, but that it was a bond valid at common law, and that the jury might assess such damages as they believed the ‘ plaintiff had sustained by the breach of the bond. The jury returned a verdict for the plaintiff, and assessed the damages at one dollar.</p> <p>To these rulings and instructions, the plaintiff filed his bill of exceptions.</p> <p>The defendants also filed a bill of exceptions in the same case, from which it appeared that, at the trial, they contended, that the bond was not good either as a statute bond, or at common law, but was incomplete and void. The Court overruled this position, and decided, that although it was not a good bond by the statute, yet it was good at common law; and that if its execution had been proved, the plaintiffs could recover whatever damages he had sustained in consequence of its conditions not having been complied with.</p> <p>After the verdict had been returned, the defendants contended that the plaintiff was entitled to recover but a quarter part as much costs as damages. The Judge directed that judgment should be rendered for the penalty of the bond, and ordered the execution to issue for one dollar damage and full costs. And the defendants excepted.</p> <p>contending that the bond was invalid and void. This is a collateral undertaking only as sureties for the performance of certain acts by the principal; and where there is no principal, there can be no sureties. The officer could not take such bond legally. It is against the policy of the law. It was incomplete, and of no binding force. Bean v. Parker, 17 Mass. R. 591; Wood v. Washburn, 2 Pick. 24; 1 Mete. & Perk. Dig. 433. The statute mode has excluded the common law mode, and the bond is not good at common law. Gooch v. Stephenson, 13 Maine R. 371; Cutis v. Hussey, 15 Maine R. 237.</p> <p>If good in any way, it must bo good as a statute bond. But it is not good as a statute bond, because it is not signed by the principal, and because tire penalty is not for double the amount.</p> <p>If the action can be maintained, the damages must be but nominal. It is not a statute bond, and the plaintiff has sustained no damages. If it be true that the question of damages should have been decided by the Court, and not by the jury, it has been repeatedly settled, that no new trial will be granted on that account, if the verdict is rigid.</p> <p>contending, among other things, that as the debtor had been discharged from arrest in consequence of the giving of this bond by the defendants, and could not be again arrested on the execution, and there was no illegality in the transaction, they should not be permitted now to say that it is of no binding force.</p> <p>The statute does not require, that the debtor should sign the bond. It is the voluntary act of the defendants, and they might well stipulate, that another should do certain acts. It is within both the letter and spirit of the law. Vallance v. Sawyer, 4 Greenl. 63; Cutter v. Whittemore, 10 Mass. R. 442; Haskins v. Lombard, 18 Maine R. 140. As it respects the defendants then, at least, it should be considered a good statute bond.</p> <p>But if the bond declared upon is not a good statute bond, it is good at common law. If the creditor chooses to accept it, though less favorable to him, than he was entitled to have, the defendants cannot complain. The creditor may waive any thing which is merely for his advantage. The bringing of the suit upon the bond, is an acceptance of it. If therefore the omission of the signature of the debtor, and the fact that the penalty is less than it should have been, prevent its being good under the statute, we are entitled to judgment upon it as a common law bond. Kimball v. Preble, 5 Greenl. 353 ; Pease v. Norton, 6 Greenl. 229; Clap v. Guild, 8 Mass. R. 153; Rev. St. c. 148.</p> <p>The bond was not subject to chancery. The defendants have bound themselves that the debtor should do certain things, or that they would pay the debt and costs, as stipulated damages. Gowen v. Gerrish, 15 Maine R. 273 ; Howe v. Gammon, 14 Maine R. 250.</p> <p>The damages should have been estimated by the Court, and not by the jury. Hathaway v. Crosby, 17 Maine R. 448.</p>

<p>This was an appeal, under the provisions of the St. 1841, c. 196, from a decision of the County Commissioners, accepting the report of a committee agreed upon and appointed to assess damages occasioned by the location of a county road through the land of McLellan. The report was accepted at the December Term of the County Commissioners’ Court, 1841. The whole of the commitfee attended, heard the parties, and consulted together as to the assessment of damages. Two of them signed the report of the committee, and the third made a certificate, that he was present with his associates, viewed the premises, heard the parties, and consulted with his associates, but dissented, and declined signing the report, because he thought the damages awarded were inadequate.</p> <p>said that an appeal was the proper mode to obtain redress. St. 1841, c. 196, § 2.</p> <p>The report of the committee to assess the damages ought not to have been accepted, because it was signed by but two of the committee. All the members of the committee must concur in the report, or their proceedings are unauthorized and void. Towne v. Jaguilh, 6 Mass. It. 46 ; Greene v. Miller, 6 Johns. It. 39 ; Kyd on Awards, 106; Com. v. Ipswich, 2 Pick. 70 ; Jackson v. Hampden, 16 Maine R. 184.</p> <p>contended that the committee were to be considered as public officers,-the decision of a majority of whom is valid. Where they all acted, but one dissented, because he differed in opinion, as in this case, the committee has the same right to act by the majority, as selectmen, assessors, or the County Commissioners themselves. The case of Jackson v. Hampden, cited for the original petitioners, does not deny the power of a majority to act, but merely decides that all should have notice, and an opportunity to act. All officers may act by majorities. Jurors, if they are entitled to be called officers, are an exception.</p>

The original action was debt by Case, as clerk of a company of infantry in Readfield, to recover of Thorn the fine imposed by the statute for non-appearance at the May inspection of said company in 1841. The organization of the company; the appointment of Case to be clerk ; and the limits of the company were proved.

The parties agreed upon a statement of facts. Debt on bond, dated 18th January, 1840, in the penal sum of $237,02. The officer holding an execution in favor of the plaintiff against said Bridge, arrested him on December 30, 1839.

Exceptions from the Middle District Court, Redington J. presiding. This was a petition to the District Court for a review of a judgment rendered in that Court, whereby the petitioner was charged as the trustee of one W. Hopkins. The petitioner also prayed for leave to amend his disclosure.

Statement of facts. It is admitted in this case, that the plaintiff sailed in the brig Partridge from Bath to Havana in Cuba, and that the defendant is part owner of said brig, and is liable to pay the plaintiff such sum as he is legally entitled to recover; that the plaintiff was in the employment of the defendant, as aforesaid, two months and fifteen days, in 1841, at seventeen dollars per month, amounting to forty-two dollars and fifty cents; that the plaintiff was paid…

<p>Assumpsit. In one count in the writ, the plaintiff alleged, that John Dryden was indebted to him for the balance due on two promissory notes; that on, &c., the defendant, in consideration that Dryden had put property into his hands for that purpose, and in consideration that the plaintiff would forbear to sue said notes, promised to pay the same notes to the plaintiff; that he did forbear to sue Dryden, of which the defendant had notice, and thereby became liable, and in consideration thereof promised to pay the amount due on the Dryden notes to the plaintiff. The facts are stated in the opinion of the Court.</p> <p>At the trial, a nonsuit was directed, which was to be set aside, if the plaintiff was entitled to recover.</p> <p>1. The promise made in this case was made on a good consideration, and does not come within the statute of frauds. It need not, therefore, be in writing. King v. Upton, 4 Maine R. 387; Russel v. Babcock, 14 Maine R. 138; Roberts on Frauds, 232.</p> <p>2. We claim to recover also on the ground, that the defendant had received property from the original debtor to pay this debt, and had the same in his hands for that purpose at the time the promise was made. Smith v. Berry, 18 Maine R. 122; Packard v. Richardson, 17 Mass. R. 122.</p> <p>said this could not be an original promise, because the notes against JDryden were not given up, and the right to maintain a suit upon them against him remained unimpaired.</p> <p>It was therefore a mere collateral promise to pay the debt of Dryden, made while that debt was in existence, and was so to continue. The promise relied on, not being in writing, comes within the statute of frauds, and the plaintiff is not entitled to recover upon it. Our statute is the same in substance as the English statute of frauds, and the construction should be the same. Wain v. Warlters, 5 East, 10; Saunders v. Wake-field, 4 B. & Aid. 595.</p> <p>The cases of Packard v. Richardson, and King v. Upton, cited for the plaintiff, merely go to say, that the consideration for the promise need not be slated in the writing, but affirm the doctrine, that the promise itself must be. If the promise be to pay the debt of another, it must be in writing, or it is void. Stone v. Symmes, 18 Pick. 467. In the present case the plaintiff gave up nothing, promised nothing, and suffered no injury. It was merely advice gratuitously given by the defendant to the plaintiff; and the plaintiff must also fail, because there was no consideration for the promise, had it been made in the mode required by law.</p>

<p>This was a writ of entry to recover a small lot of land in Farmington with a dwellinghouse thereon. The demandant claimed title by a levy on it as the estate of Henry Ford, Jr. and Arthur Morse. On the trial, before Shepley J. it appeared in evidence, that there was an error in describing the lot, in that part of the line, which states it to commence, on the south lino of the land of Henry Russ, and to be in another place bounded by his land, there being another lot between the land intended to be levied on and the land of Russ. In oilier respects the bounds were correctly described. For this cause, and for defects apparent in the proceedings in making the levy, the counsel for the tenant contended that the demandant obtained no title thereby. But for the purpose of enabling the jury to find the facts, these objections were overruled. Morse never had any title to the lot levied upon, and the return of the officer stated that the debtors chose an appraiser. Henry Ford, Jr. conveyed a tract of land, including the premises demanded, to Ebouezer Bean by deed dated Nov. 7, 1835, recorded the 11th of December of the same year. The demandant proved by Elnathan Pope that ho wrote and witnessed the execution of that deed; that it contained all the real estate of Henry Ford, Jr.; that he was then embarrassed, and failed in business, whether before or after cannot say; that Bean was a brother-in-law of Ford, Jr. having married Ms sister; that he saw nothing paid, nor any security given; that the parties were present, and stated, that Bean was to pay a certain sum in cash to pay Ford’s debts, two or three hundred dollars, which it was said Bean had in his house near by, in specie, and they were to go there and make the payment; that another part of the consideration, amount not recollected, was to be paid by certain debts or claims which Bean held against the tenant, Henry Ford, the father of Henry Ford, Jr.; and that a remaining portion of the consideration was to be applied by Bean for the benefit and support of Henry Ford, Sen.</p> <p>It appeared, that Henry Ford, Sen. had paid the consideration for the purchase of the estate, when it was conveyed to Henry Ford, Jr. The report of the case states, that a question was made, whether the deed was not so made by the procurement and hand of Henry Ford, Jr. but the finding of the jury negatived any fraud in this particular. On this testimony the jury were instructed, that if they believed that the agreement between Ford, Jr. and Bean as to the purchase of the land, had been carried into effect, that deed muss, be regarded as fraudulent, as against Henry Ford, Jr.’s prior creditors, un-> less Henry Ford, Jr. was under some legal obligation to sup-1 port his father, of which there was no evidence.</p> <p>The notes upon which the demandant obtained judgment, to satisfy which the levy was made, were made by the judgment debtors to the judgment creditor and one Perham, and it did not appear how or when Perham parted with his interest in them to the demandant. One of the notes was dated the 11th of May, 1832, the other the 24th of November, 1834. The counsel for the tenant contended, that the demandant could not be considered in law as a prior creditor, but the Court decided otherwise. The verdict was for the demandant.</p> <p>If in giving these opinions or instructions, the Judge was in error, the verdict was to be set aside; and if the defects ini the levy are such as to prevent the demandant from obtaining any title under it, he was to become nonsuit.</p> <p>and cited, Herring v. Polly, 8 Mass. R. 113 ; Banister v. Higginson, 15 Maine R. 73.</p> <p>and cited, Tibbets v. Merrill, 3 Fairf. 122; Herring v. Polly, 8 Mass. R. 113; Buck v. Hardy, 6 Greenl. 162; Johnson v. Whitwell, 7 Pick. 71; Harris v. Sumner, 2 Pick. 129; Barney v. Norton, 2 Fairf. 350 ; Damon v. Bryant, 2 Pick. 411; Howe v. Ward, 4 Greenl. 195; Mead v. Davis, 5 Pick. 388.</p>

<p>A note, given to J. M. P. and J. W., who were copartners in the purchase and sale of lands, as the consideration of a deed of certain land, was indorsed by one of them by the partnership name of P. & W. by the prior consent of the other who was not then present, in payment of a debt due by them; and it was held, that the note was legally indorsed and transferred thereby.</p> <p>Where a note was signed by one of two copartners in trade, by the name of their partnership firm, and given as the consideration for the purchase oí real estate, conveyed to both by his procurement, to which the other had never assented, and of which he had no knowledge until afterwards, and this transaction was wholly out of the line of their business, and known to be so by the payees ; but subsequently this partner, in his own name and under his own hand, joined with the other in a bond to a third person, stip- . ulating to convey the same land on the performance of certain conditions, and at the same time disclaimed any interest therein, avowed that he did it only for the benefit of his copartner, and declared that he would never participate in the profits thereof; it was held, that he had so confirmed the doings of his partner, as to be holden on the note.</p> <p>Where anote, given in the name of a partnership, was indorsed for a valuable consideration before it become payable, and the indorsee had no other knowledge of its origin, than that it was given for land purchased, it was held, that this was not sufficient notice to him, that the signature of the partnership name had been unauthorized.</p> <p>If a promissory note has been indorsed and transferred to an indorsee for value before it fell due, and is available in his hands, want of consideration cannot be set up as a defence against his indorsee, although the latter had been notified before the transfer to him, that the note was without consideration.</p>

By accident the report of the case never came into the hands of the Reporter.

<p>Debt on a poor debtor’s bond, bearing date Aug. 4, 1839. At the trial, before Whitman C. J., after the evidence was introduced, the plaintiff became nonsuit, reserving liberty to .move for a new trial, in case the whole Court should be of opinion, that the action might be maintained.</p> <p>The material facts are all given at the commencement of the opinion of the Court.</p> <p>said the contract here was to do certain things within six months from the date of the bond. Any evidence, the effect of which is to extend the time of performance, varies and alters the effect of the written contract. Parol evidence is inadmissible for that purpose.</p> <p>It is said, that a deed takes effect from its delivery, and not from its date. This rule applies only to the conveyance of real estate. But here the date is a material part of the contract, and as material, as the day stated, when performance is to be made by a future day certain, fixed in the instrument. 2 Stark. Ev. 543, 544, and 551, and cases cited; 2 Johns. 11. 230; 4 Barn. & Cres. 408.</p> <p>If the date is to be changed by such testimony, it may change the nature of the contract, and turn a statute bond into a common law bond.</p> <p>To permit such evidence would be to contradict the return of the officer. The law requires, that the officer should return when he took the bond, and return the bond with his precept. The return of an officer cannot be contradicted, unless in a suit against him for a false return. Com. Dig. Return, G.; Bott v. Burnell, 9 Mass. R. 96 ; Same case, 11 Mass. R. 163 : Estabrook v. Hapgood, 10 Mass. R. 313 ; Slayton v. Chester, 4 Mass. R. 478 ; Bean v. Parker, 17 Mass. R. 591; Winchell v. Stiles, 15 Mass. R. 230; Stinson v. Snow, l Fairf. 263.</p> <p>The bond recites, that the debtor was arrested on the day of its date, and he is estopped from denying it.</p> <p>But there should not have been a nonsuit, because, if the bond is to be considered as taking effect from the time the witness said it was signed, still it is good at common law, and the action can be maintained.</p> <p>contended that the officer’s return was not contradicted by the evidence objected to, because it does not appear that this is the bond referred to by him.</p> <p>The action was commenced within six months from Sept. 4, the time the bond was actually signed, if the evidence is admissible to show the 'fact. The only inquiry then is, whether we are at liberty to show the mistake. If we may, the suit is prematurely brought.</p> <p>The rule is, that all mistakes in date may be shown. 2 Stark. Ev. 557, 572, and cases cited. Mistake in the date of a replevin bond, and of a writ may be shown. Chandler v. Smith, 14 Mass. R. 313 ; Johnson v. Farwell, 7 Greenl. 370.</p>

Assumpsit upon a joint and several promissory note, given by the defendants to the plaintiff. The facts stated in the report of the case are all to be found at the commencement of the opinion of the Court. contended that the acknowledgment of one of two joint and several promisors made after the demand has already become barred by the statute, is not sufficient to take it out of the operation of the statute of limitations. Sigourney v. Drury, 14 Pick. 387.

<p>In an action upon a poor debtor's bond, made prior to the statute of 1839, c. 366, it was held, that if it appeared that the Justices, who administered the oath to the debtor, had acted only in pursuance of a citation issued on an application made directly to the magistrate by the debtor, instead of from the prison keeper as the law then required, that they had no jurisdiction of the matter, and that their proceedings would have been illegal and void, if the legislature had not interposed by that statute, and given to the defendants the right to have the action tried by a jury, to ascertain the amount of loss actually sustained, if any, as the measure of the plaintiff’s damages.</p> <p>On such trial, if it be shown, that the oath had been administered by the magistrates, it is still competent for the plaintiff to prove, “ that at the time the oath was administered to the debtor, there was personal property, money, debts, credits, or real estate belonging to the debtor in the hands of his surety on the bond, sufficient, in whole or in part, to pay the execution referred to in said bond.”</p>

This was an action to recover for tho support of a pauper and her children, alleged to have had their settlement in Brownfield.

Exceptions from the Eastern District Court, Aleen J. presiding. Trespass to recover the value of a cow, taken by- the defendant, a deputy sheriff, who claimed to justify the taking by virtue of a writ against the plaintiff, Stephen Freeman, as his property.

<p>Wheri the verdict will necessarily charge oñe, or will discharge him from a fixed liability, he is incompetent to testify in the case; but where there is no fixed or certain liability, whether the plaintiff recovers or not, and his interest, if any, is contingent, a mere possibility that he may be charged, it goes to the credibility of the witness, and not to his competency.</p> <p>In determining whether an instruction to the jury be, or be not, correct, it should be considered in connexion with the evidence in the case, and as applicable to it.</p>

Assumpsit against the defendant as indorser of a note given to him by one Joseph Smith, with the money counts.

<p>In an action by the payee of a draft against the drawer, where it appeared that the plaintiff was one of two assignees of the effects of the acceptor, it was held, that the burthen of proof was on the defendant, to show that the plaintiff, as assignee, had funds in his hands to go, either wholly or partially, to pay the draft.</p> <p>Where an assignment of his effects was made by the acceptor of a draft for the benefit of his creditors, containing a release of the debtor from all his liabilities; and the payee of the draft, with the verbal approbation of the drawer, wrote upon the assignment in the list of creditors, a description of the draft, u for whom it might concern;” it was keld} that this would not discharge the drawer from his liability.</p>

<p>This was an appeal from the decree of the Judge of Probate, approving the last will and testament of Charles T. Halley, deceased. The appellants alleged that the deceased, at the time of making the instrument, was not of sound and disposing mind and memory; and an issue was formed for the jury, and tried before Shelley J. The respondent had introduced and examined one Osmore, who had attended the deceased in his last sickness, and whose testimony had a tendency to show, that the deceased had a sound mind at the time of making the will. The heirs at law introduced evidence to discredit Osmore, and called a witness, who testified, that Osmore had told the witness, that he, Osmore, had lost his devotion; that he intended now to serve the devil as long as he had served the Lord; that he had a pack of cards with him which he carried about in his pocket, and called them his bible.” This testimony was objected to by Webster, but admitted. The heirs at law introduced certain depositions, and certain portions of them £c underscored with black lines” were objected to by the respondent, but admitted. They were these: —££ I endeavored to converse with said Halley but could not, because he was insensible.” ££ He appeared to be very much prostrated with sickness, and did not appear to know Mr. F.”, a neighbor. ££ He appeared at this .time to be in a sog, and perfectly unconscious of what was around him.” ££ I found him exceedingly prostrated.” ££ He appeared at that time to be unconscious of what was transacting around him.”</p> <p>The counsel for the heirs requested the Court to instruct the jury, that if they were satisfied, that a short time before the making of the will, the testator was of unsound and non-sane memory, that the burthen of proof was upon the respondent to satisfy them, that he was of sound mind and memory at the time of executing it.</p> <p>The Judge instructed the jury on that point, that if they were satisfied, that previous to the execution of the will the deceased was of unsound mind and memory, the burthen of proof would be upon the respondent to prove, that at the time of executing it, he was of sound mind and memory; and also that the lowest share of mind and memory which would enable a person to transact the ordinary business of life with common intelligence would be sufficient to answer the requirement of the law that he should be of sound and disposing mind and memory; and that so much inind and memory would be required.</p> <p>The verdict of the jury was, that the deceased was not, at the time, of sound and disposing mind and memory; which verdict was to be set aside, if the testimony was improperly •admitted, or the instructions were erroneous.</p> <p>There was also a motion to set aside the verdict, because it was against the evidence.</p> <p>Note. — At the argument on this motion it was said, that the evidence was not accurately reported. The Court remarked, that where such motion is made, it is the duty of the counsel for the party making it, to prepare a report of the evidence, and deliver it to the counsel of the opposing party. If it be not satisfactory, his view of the evidence should be furnished ; and the Judge, who tried the action, should determine the points of difference; so that no question of this character should be raised at the argument.</p> <p>In the course of their arguments, they cited 2 Eccl. R. 269, 369; 4 Eccl. R. 182; 5 Eccl. R. 211; 2 Stark. Ev. 1702; 4 Coke, 123, Beverley’s case; 1 Swinb. on Wills, 112, 123; 2 Yeate, 48; 1 Hen. & Mutuf. 276 ; Toller, 8; Powell on Dev. 146; 3 Brown’s C. Cas. 443; 13 Ves. 87; 5 Johns. R. 144; 3 Atk. 173; 12 Ves. 450; 4 Wash. C. C. R. 262, 580; 9 Conn. R. 40 ; 7 Serg. & R. 90; 1 Pet. C. C. R. 164 ; 1 Eccl. R. 291; 3 Eccl. R. 258; Brooks v. Barrett, 7 Pick. 95; 1 Stark. Ev. 134; Comm. v. Buzzell, 16 Pick. 154; 7 East, 108.</p> <p>and cited Stone v. Damon, 12 Mass. R. 488; Breed v. Pratt, 18 Pick. 115; 2 Phil. Ev. 191; and 5 Johns. R. 159.</p>

Assumpsit on an account annexed for house rent, a count for use and occupation, and the money counts.

Debt on a bond given by Lancey, as principal, and by the other four defendants as his sureties, to “ Ford Whitman, Treasurer of said city of Bangor, in said capacity, in the sum of fifty thousand dollars, to be paid to said Ford Whitman, or his successor in his said office,” and bearing date July 21st, 1836.

Debt on a bond made by the defendants to the inhabitants of the city of Bangor, dated July 31st, 1837.

This was an action of trover for 355 mill logs, alleged to have been converted by the defendant on July 15, 1839. It was admitted by the defendant that John Black was the authorized agent of the plaintiffs.

The action was brought by the plaintiff as indorsee of a note.

This was an action of assumpsit, brought upon a written agreement made upon the back of a bond given by the defendant to one Kimball.

Assumpsit on a note, dated February 20, 1838, in favor of the plaintiffs against James H. Carleton, Robert R. Haskins and Romulus Haskins, alleged to have then been copartners, doing business in the name of J. H. Carleton & Co. Carleton and Romulus Haskins were defaulted ; and the only question was, whether Robert R. Haskins was liable as a partner. The note, which was admitted to have been signed by Carleton in the partnership name, was read to the jury.

Assumpsit on a note' of hand, made by Abner Bailey to the defendant, and by him indorsed for the accommodation of the maker, dated Feb. 20, 1836, for the sum of $415. To prove payment of the note the defendant offered the deposition of Bailey, the maker of the note'. To the admission of this deposition the plaintiff objected on account of the interest of the witness. The objection was overruled by Si-iepley J. presiding at the trial, and the deposition was read to the jury.

In each of these casos Isaac S. Whitman was summoned as trustee, and made his several disclosures. From these it appear^ ed, that a tract of land, called the Harlow Corner, on which were several small tenements, bad been owned as tenants in common by Harlow, by Drew, by Wiggin and others, Drew and Wiggin had mortgaged their shares in the estate, respectively, to Harlow, and the condition of these mortgages had been broken.

Assumpsit by the plaintiffs, in their corporate name, upon a promissory note dated Oct. 4, 1838. The general issue was pleaded, and a brief statement was filed, alleging that the charter of the bank had been annulled.

This was an action of debt on a replevin bond, and came before the Court on an agreed statement of facts. The facts appear in the opinion of the Court.

<p>Exceptions from the Eastern District Court, Allen J. presiding.</p> <p>Case against the defendant, then sheriff of the County of Kennebec, for the default of Francis Davis, Jr. one of his deputies. . .</p> <p>The facts in the case are stated in the opinion of the Court. The officer’s return on the writ follows. “ Kennébec, ss. May 8, 1837. I attached one horse of the defendant of the value of one hundred and fifty dollars, also all the right, title, and interest lie has in all real estate in the County of Kennebec, and gave him a summons in hand.” The ruling of the District Judge is also stated in the opinion of this Court. The verdict was for the plaintiff for the full amount of the judgment remaining unsatisfied, and the defendant filed exceptions.</p> <p>contending that the plaintiff could not recover on the first count, or at most only nominal damages for not returning the execution. And in regard to that, it was incumbent on the plaintiff to show, that it had not been returned. Varrill v. Ileald, 2 Greenl. 91.</p> <p>On the second count, the plaintiff was bound to prove that the execution was in the hands of the officer within thirty days from the rendition of judgment. If received by him after-wards, though within the life of the execution, he could not be liable any further, than he would have been on the first count.</p> <p>The evidence offered by the plaintiff to show that no actual attachment was made on the writ, ought not to have been admitted. That evidence was to prove a different default from the one charged, and would expressly contradict the declaration. Doane v. Badger, 12 Mass. 11. 69. Such evidence could only have been admissible in an action for a false return, in which the plaintiff could recover no more than the damage actually sustained. Weld v. Bartlett, 10 Mass. 11. 470; Norton v. Valentine, 15 Maine !>,. 36.</p> <p>The Judge erred in his instructions as to the true measure of damages. The jury should have been instructed to assess the damages actually sustained by the plaintiff. Varrill v. Ileald, 2 Greenl. 91 ; Hodgdon v. Wilkins, 7 Greenl. 113; Nye v. Smith, 11 Mass. it. 188; Phillips v. Bridge, ib. 242; Rice v. 1.losmer, 12 Mass. R. 127 ; Shackford v. Goodwin, 13 Mass. R. 187; Burrill v. Lithgow, 2 Mass. R. 526; Colby v. Sampson, 5 Mass. R. 310; Dearborn, v. Dearborn, 15 Mass. R. 316. The admission made by the gentleman, who conducted the trial, who is not the counsel now employed, especially as it was retracted before the trial closed, would not justify the instruction. Hodgdon v. Wilkins, 7 Greenl. 113. In any view of it, it should not be extended further than to recover nominal damages. .</p> <p>and admitted, that the plaintiff could not recover on the first count, for want of proof that the execution was not returned. The exceptions do not show, whether there was or was not proof on the subject. The only questions presented are upon the rulings and ..instructions of the Judge. '</p> <p>The refusal to order a nonsuit was clearly right. It was a question of fact for the jury, and was propérly submitted to their decision.</p> <p>The testimony objected to was rightly admitted. It did not go to prove a different default from that charged, nor did it contradict. the declaration. It was introduced merely to rebut the testimony offered by the defendant.</p> <p>The Judge’s ruling was right .on the question of damages,ánd -of the effect of the evidence of the debtor’s insolvency. The error was in admitting the evidence, of which the defendant cannot complain. To admit, the evidence was to allow the sheriff to contradict his return, and to.instruct the jury, if they found certain facts, to disregard it, could not be wrong. Purrington v. Poring, .7 Mass. R. 392; Weld v. Bartlett, 10 Mass. R: 470 ; Simmons- v. Bradford, 15 Mass. R. 82; Stinson v. Snow, 1 Fairf. 262; Clark ■ v. Lyman, 10 Pick. 47 ; Boynton v. Willard, ib. 169.</p> <p>If the defendant’s principle is right, the actual damage.was the value of the horse attached, and the officer values it in his return at one hundred and fifty dollars, all the jury found.</p> <p>There was no evidence that, the officer attached any particular horse. líe wholly failed to show that the horse attached belonged to another, and so the jury found.</p> <p>No reliance is placed on the admission of the gentleman’s associate, but that the law is clearly as he admitted it to be.</p>

<p>Desertion of the vessel during the continuance of the contract, animo non revertendi, and without sufficient causo, connected with a continued abandonment, works a forfeiture of seamen’s wages by the maritime law.</p> <p>But when a statute desertion is interposed as a forfeiture of wages,, there must be a performance of the duty required by the act of Congress, by making the proper entry on the logbook.</p>

This was a writ of entry, and was tried upon the general issue. The tenant filed a claim for betterments, and the demandant filed a request, that the value of the land might be estimated, as it would have been, had no improvements been made. This suit was commenced April 28, 1838. The demandants proved title to the premises demanded under a title originating in 1815, and the tenant produced a conveyance of the same land from the same grantor in 1824.

Exceptions from the Eastern District Court, Chandler J. presiding. Assumpsit for the use of a sawmill, in Orono, during the summer of the year 1838. The writ contained a count on an account annexed, and one for monej^ had and received, and by leave of Court, the plaintiff also added a count for use and occupation. The writ was dated, August 23, 1839.

<p>By an offer to be defaulted the cause of action must be regarded as confessed ; and such offer under the statute, is equivalent in its effect, in that particular, to bringing money into Court upon the common rule, which has ever been considered as leaving nothing in controversy but the quantum of the debt or damage, which the plaintiff is entitled to recover.</p> <p>To enable the jury to ascertain the amount of rent to be recovered for the use and occupation of a store for a certain time, it is competent for the plaintiff to show what the premises had rented for in years immediately preceding tile period in question; and also what other similar tenements rented for in the same neighborhood, at and about the same time.</p> <p>Leases of the same store in farmer years to which one of several defendants was a party, are admissible in evidence for the same purpose.</p> <p>And also with the same view, it is competent for the plaintiff to give in evidence, for the consideration of the jury, that he requested the defendant to leave the store, and that if he, continued in the occupation thereof, a certain rent would be expected.</p>

This case was submitted for the opinion of the Court, without argument, upon the statement of facts found at the commencement of the opinion.

<p>. The parties agreed, that the action was upon a note of hand signed by the defendant, and that he was at the time of signing it, and still is, an Indian of the Penobscot tribe. If the action could be maintained against the defendant, he being an Indian as aforesaid, he was to be defaulted; and if not, the plaintiff was to become nonsuit.</p> <p>At the June Term, 1842, the case was continued nisi under an agreement, that it should be argued in writing. No arguments have come into the hands of the Reporter.</p>

Exceptions from the Eastern District Court, Allen J. presiding. Debt on a poor debtor’s bond in the penal sum of $66,72, being double the amount of the debt and costs without interest, dated April 15, 1837.

<p>Exceptions from the Eastern District Court.</p> <p>Statement of facts. This was an action of assumpsit upon an account annexed to the writ, and also upon a count on a special contract to pay the expenses the Pattens had incurred in their suit against Whittier. The account is as follows, to wit: —</p> <p>“ Mr. Joseph Whittier to James S. Rowe, Dr.</p> <p>1840, June. To taxable bill of costs in the case Willis Patten al. t. him, 15,03</p> <p>“ Commissions on amount secured by attachment, 10,00</p> <p>$25,03</p> <p>“Cr. July. By cash and Remick’s order, 15,03</p> <p>$10”</p> <p>To sustain his action the plaintiff introduced Willis Patten as a witness, who was released, and testified that sometime in the spring of 1840, he had a suit on a note against Joseph Whittier for $2000, and he came down to settle it, and he said he would give him certain paper for the demand, to which the witness assented, provided he would pay the expenses. He then asked him what it would be, and the witness replied he did not know, but would see Mr. Rowe. He did see Mr. Rowe, and. told him he wanted to know how much the bill would be. Rowe said he would make it out and hand it to him, which he did, and when he came in Whittier was in the counting room. Rowe handed in the bill, which is the s.ame the witness holds in his hand, and is as follows;</p> <p>“ Willis Patten <Sf al. to James S. Rowe, Dr.</p> <p>1840. To bill of cost in suit against Joseph Whittier, 15,OS</p> <p>“ Commissions on amount secured by attachment, 10,00</p> <p>- $25,03’='</p> <p>Whittier took it and looked at it, and told Mr. Rowe, that he would pay it before he w'erit out of town. The witness and his partner afterwards settled the demand as was proposed, and neither party was entered on the docket. The witness told Rowe the arrangement they had made. When Whittier told Rowe, that he would call and settle it before he went out of town, and Rowe said that would be satisfactory. On cross-examination, witness .sard the whole amount of their debt was paid by their own paper, the amount of which he cannot recollect. They employed Mr. Rowe to bring the action. There was no promise in writing to pay the bill.. Rowe said he should look to Whittier for pay. It was proved by the receipt of the plaintiff, which was put into the case by the defendant, that the taxable costs, being $15,03, were paid before the commencement of the action. The bar rules of Penobscot County may be referred to. Upon these facts the District Court rendered judgment for the plaintiff for 'the balance of the account; and the defendant filed exceptions.</p> <p>contended that the defendant was not liable, if the agreement was not within the statute of frauds, because commissions were not chargeable to any one, except where money was collected. And if the item for commissions is chargeable against Patten, it is not a charge against the defendant. His promise was to pay only the costs, but had it extended to the commissions, it would not have been binding upon him ; for a promise made in ignorance of his legal rights is not binding. Warder v. Tucker, 7 Mass. R. 449; Garland v. Salem Bank, 9 Mass. R. 408.</p> <p>The promise is not valid, because it is within the statute of frauds. The Pattens remained liable, and in such case, the collateral promise of a third person must be in writing, or it is not binding. Perley v. Spring, 12 Mass. R.' 297 ; Tileston v. Nettleton, 6 Pick. 509; 1 Saund. 212 ; 2 T. R. 80; 2 Ld. Raym. 1085; 2 Wilson, 94; Corn, on Con. 182,191; 4 Johns. R. 422; 12 Johns: R. 291 ; 7 T. R. 201.</p> <p>There was no consideration for the promis.e, and it was therefore void. The defendant was under no obligation to pay the charge for commissions. Thacker v. Dinsmore, 5 Mass. R. 301 ; 7 T. R. 350. The promise was no injury to the plaintiff, for he had no claim on the Pattens for this charge. Com. on Con. 27; Cabot v. Haskins, 3 Pick. 92.</p> <p>The promise, however, did not extend to the payment of commissions. A promise to pay the expenses of a suit is but a promise to pay the legal costs of the suit.</p> <p>The plaintiff’s claim on the Messrs. Patten for commissions was a legal one, for it was in accordance wdth a long established barrule ; and without such rule, it would have been legal. For no one but his client, can object to an attorney’s charges for his services ; and if he allows them, they constitute a legal claim. W. Patten allowed this charge for commissions, and handed the plaintiff’s bill to defendant as a statement of the expenses to be paid. The defendant received it as such, and without objecting to any charge, promised to pay the bill.</p> <p>The obligation of that promise, in part, he has admitted by paying the charge of taxable costs. There is no ground for the distinction between taxable costs and commissions. Neither constituted a debt of the defendant to the Pattens. Claim for taxable costs follows the judgment. At the time of the defendant’s promise, there was no judgment. Had the action not been dismissed, judgment might have been for the defendant. Until judgment the plaintiff’s claim for costs is no more a debt of defendant’s, than defendant’s claim for costs is a debt of the plaintiffs. Before his promise the defendant was under no legal obligation to pay any part of the bill, and was under as strong moral obligation to pay one part as another, for the whole “ expenses” had been incurred by the Messrs. Patten, in consequence of his neglect to pay his debt to them.</p> <p>There was a good consideration in part, as is admitted, and, the promise being entire, that is sufficient to support the whole. 15 Pick. 159.</p> <p>2. This case does not come within the statute of frauds. The defendant’s promise was an original undertaking, founded on a new consideration, moving between the parties.</p> <p>The consideration was twofold. 1st. A benefit to the defendant in thereby effecting a settlement which he could not have brought about without such promise. For the Messrs. Patten would agree to the compromise, only on the condition, that the defendant should pay, or discharge them from their liability for the “expenses” of that suit. 2d. A loss to the plaintiff in releasing his claim upon the Messrs. Patten for those expenses. For the arrangement between the Messrs. Patten and the defendant was, that their action should not be dismissed until they were discharged from their liability for the expenses ; of which the plaintiff was informed, and consequently, by accepting the defendant’s promise, as satisfactory, and having the Pattens’ suit dismissed, he discharged them. '</p> <p>Either consideration alone would be sufficient to uphold the promise. Dearborn v. Parks, 5 Greenl, 83; Leonard v. Vredenburgh, 8 Johns. R. 31; Farley v. Cleaveland, 4 Co wen, 432; 1 Johns. R. 135 ; 1 Wilson, 305 ; Com. on Con. 196.</p> <p>The discharge of the Pattens’ liability to the plaintiff was not necessary to give validity to this promise. “ In all these cases, founded, upon a new and original consideration of benefit to the defendant, or harm to the plaintiff, moving to the party making the promise, either from the plaintiff or the original debtor, the subsisting liability of the original debtor is no objection to the recovery.” Farley v. Clcaveland, 4 Cowen, 439.</p> <p>3. The defendant’s promise was good though not in writing. Brown v. Atioood, 7 Grecul. 356.</p> <p>4. The contract was entire ; to pay a certain sum, a sum stated and ratified by part performance.</p> <p>There is nothing in the case to sustain the position taken by the defendant, that the promise was made in ignorance of his legal rights. His arrangement with the Pattens was to pay the “ expenses,” (not the taxable costs,) and the amount of the plaintiff’s bill was to be the amount of those expenses. That bill was asked for, rendered and received, without objection, as conclusive evidence of the expenses. The defendant’s promise was made voluntarily, after examination of the bill, when he was not bound to pay a cent of it, to effect a compromise. And if proved, such ignorance is no excuse in law.</p>

<p>It seems evident, that the framers of the Constitution of Maine, when providing for the continuance in office of (f judicial officers,” had in view those who to a general intent and purpose were such, and not those who were incidentally and casually entrusted with some attribute of judicial character.</p> <p>The Recorder of the Municipal Court of the city of Bangor was not, in the sense contemplated by the constitution, a judicial officer; and therefore 'might be removed from office by the Governor and Council.</p> <p>The Municipal Court of the city of Bangor is a court of record.</p> <p>The power to commit for contempts of Court is incidental to all courts of record.</p> <p>'Vyiien a person has been duly removed from the office of Recorder, and an-, other has been appointed in his stoad, the person so removed commits a contempt of Court by persisting, after full and authentic information that he had been so roipoved, to exercise the duties of the office; especially after having been ordered l>y tire Judge to desist therefrom.</p> <p>In such case the Judge lias jurisdiction of the subject matter of a commitment.</p> <p>An action will not lie against a Judge of a court of record for any act done by him in his judicial character, in a matter within bis jurisdiction, although in the discharge of the duties of his office there inay have been an erroneous judgment, or an illegal commitment.</p>

<p>This action was brought against the defendant as late sheriff of the County of Penobscot for the default of Henry B. Farnham, his deputy, in not keeping and delivering on demand certain property by him attached and returned on two writs, in favor of the plaintiff against Samuel A. Gilman, one dated March 12, 1836, and the other, Sept. 5, 1836.</p> <p>The plaintiff introduced the writs. On the back of the first were written these words, “ Mr. Officer. Secure by attaching personal property, goods, &c. by order of the creditor. S. & A.;” and on the other, “ Mr. Officer. Attach sufficient personal property. S. & A.” The writs were indorsed, “ George Starrett, Moses L. Appleton,” and were in the handwriting of Mr. Appleton. Farnham returned an attachment, under date of March 12, 1836, of “goods, wares and merchandize to the value of twelve hundred dollars,” without naming any article ; and on the second, an attachment of various articles of merchandize named, but not separately valued, “ being all to the amount of twelve hundred dollars.” The plaintiff also proved that judgments were recovered in said suits, executions issued thereon, and the property duly demanded of Farnham by the proper officer, having the executions, within thirty days after judgment, and a refusal to deliver the same.</p> <p>The defendant then introduced, as a witness, Farnham, the deputy who made the attachments, who was objected to on the ground of interest; and he then produced a release from the defendant to himself, discharging him from all claim by reason of any default alleged in this action. The plaintiff still objected to his competency, but the objection was overruled by Tenney J. presiding at the trial. Farnham testified, that he thought, about March 12, 1836, George Starrett, Esq. then one of the firm of Starrett &. Appleton, attorneys at law, but since deceased, gave him a writ for service, Henry Rice v, Samuel A. Gilman, which Starrett, having read his instructions, said he wanted secured ; that he did not wish to break up the young man in business; that if S. A. Gilman would give his father’s paper on sixty days, that the witness might take it, and if not, attach his goods in the store, and take his father as receiptor ; that the father was a man of property, and worth fifty or sixty thousand dollars. Farnham further stated, that he went over with the writ; that the debtor’s father refused to give the sixty days paper, and he attached the goods, and took the debtor’s father as receipter; that he then came back to Starrett &. Appleton’s office, and Starrett said it must be good, for he considered Mr. Gilman worth fifty or sixty thousand dollars. Farnham further testified, that in Sept. 1836, Mr. Starrett, gave him another writ in favor of the same against the same, with the same directions as the first; that he told Starrett that the goods had been attached by others on other suits ; that Starrett said to him ho might notwithstanding attach them, and get the old gentleman’s receipt; that he then went into the store, sent for the old gentleman, who gave his receipt therefor; that he then returned to Starrett’s office; that he received his directions in both cases from Starrett; that he thought Mr. Appleton was not present in the office; and that subsequently he gave the receipts to Mr. Appleton, who commenced suits thereon. The plaintiff objected to the admission of this testimony, the grounds of objection not being stated, but it was admitted by the presiding Judge. In the last mentioned receipt, the promise was to deliver the property “ on demand after judgment.”</p> <p>The plaintiff then proved that the first note was sent by him to S. J. Foster, in a letter, dated March 8, 1836, and that Foster handed the note and letter to Messrs. Starrett & Appleton. The- part of the letter relating to the note follows, “ Enclosed you have Samuel A. Gilman’s note for $743,25, for which I wish you to obtain immediate security. I have another note against him payable in six months for the same amount, but make sure of' securing this, if it can be done.” . There was other testimony in the case, in some - degree conflicting with that of Farnham.</p> <p>The Judge instructed the jury, that the evidence introduced by the plaintiff, (and which was stated generally,) if believed, entitled the plaintiff to their verdict, unless the defendant, taking upon himself the burthen, gave them reasonable satisfaction, that Farnham followed the instructions given him by the plaintiff’s counsel; that on a fair construction of the letter of March, 1836, the attorneys of the plaintiff were authorized to direct the officer who had the writs to attach property, and take receipts of a responsible person as one kind of1 security ; that if Farnhani followed the directions of the attorneys, or either of them, in attaching the property and taking the receipts of Allen Gilman, and the doings of Farnham were afterwards approved by the attorneys or either of them, or if Farnham took the receipts in pursuance of the verbal directions of the attorneys or either of them, given after the directions on the writs and before the service of the writs, it was a defence to the action, even if they did not find, that the doings of Farnham were afterwards approved by the attorneys, or either of them ; and that in coming to a result on this question, they were at liberty to take into consideration the evidence touching the conduct of Farnham and the attorneys of the plaintiff, or either of them, in relation to the receipts after the- same had been taken by Farnham, and after they had been delivered to the plaintiff’s attorney. The verdict was for the defendant. If Farnham was not a competent witness, or if any of the rulings and directions of the Judge were erroneous, the verdict was to be set aside.</p> <p>They contended that the release did not render Farnham a competent witness for the defendant. It did not discharge the claim of the sheriff on the bond of the deputy for this default. If his sureties pay, they will have a claim against the witness. His interest therefore remains after the release. Dickey v. Sleeper, 13 Mass. R. 244; 8 Coke, 99, (b.) ; Com. Dig. Bail, G; 4 Hen. & Munf. 293 ; 1 Bailey, 501, 535 ; l Ld. Raym. 690; 3 Mod. 415, 551.</p> <p>The parol evidence was inadmissible to control the written instructions on the back of the writ. The testimony is, that the verbal directions were given at the same time, the writ was handed to the officer with the written instructions. If no written instructions had been given, the officer would not have been liable for any omission to attach property. He cannot be charged for neglecting to obey verbal instructions to attach property. St. 1829, c. 445; Rev. Stat. c. 151, §4; Betts v. Norris, 3 Shepl. 468.</p> <p>The testimony of Farnham was inadmissible, because it goes to contradict his own return. Gardner v. Hosmer, 6 Mass. E. 325.</p> <p>The instruction of the Judge to the jury, that Starrett was authorized by the plaintiff’s letter, to take the course said by Farnham to have been taken, was erroneous. The instructions were communicated to the officer before the service of the writ. Therefore, whether an attorney acting under a general authority has this power or not, the officer knew that Mr. Starrett liad none. The letter is plain and explicit, and gives no such power.</p> <p>An attorney without express permission has no power to authorize, so as to bind his client, an officer to take the receipt of any one individual whatever for property attached by him. An attorney cannot compromise the rights of his client in this respect. He may make himself responsible to the officer, but he cannot waive or destroy the rights of the creditor. It is no part of the duty of an attorney, in the collection of a debt, to absolve the officer from the obligation imposed upon him bylaw. Lewis v. Gamagé,'í Pick. 346; Langdonv. Potter ,- 13 Mass. It. 319; 1 Porter, 212;' 5 Randolph, 639; Parker v. Downing, 13 Mass. R. 465 ; 14 Sergt. & R. 307 ; York Bank v. Appleton, 5 Shepl. 55 ; Springer v. Whipple, ib. 351.</p> <p>The instructions of the attorney, as stated by Earnham, himself, were not followed in relation to the second writ. They did not authorize him to take a receipt for property to be delivered only after judgment. This was an important departure from instructions, because it effectually prevented the plaintiff from obtaining security of the receipter on the receipt until after judgment was obtained against the debtor..</p> <p>The defence set up in this case is against the policy of the law. The sheriff and his deputies are officers of the law, and their duties are prescribed by it. Parties should not be permitted to impose upon the officer burthens which the law does not require ; nor should the officer be allowed to bargain for a less onerous office than the law imposes. Nor should the officer be exposed to the temptation of coming into Court, and by his own testimony throwing the consequences of his owii neglect of duty upon the attorney.</p> <p>It was said, that the main questions in this case had been argued in the county of Washington in 1841, and that an opinion, favorable to the defendant, had been prepared, and was to be delivered in that case (Jenney v. Delesdernier, 2 Appl. 183,) on the ensuing week.</p>

Exceptions from the Eastern District Court, Allen ,T. presiding. Assumpsit by the indorsee against the makers of a promissory note, dated Nov. 2, 1836, payable in two years from date. Bartlett was defaulted, aud the other two defendants placed their defence upon the ground of want of consideration, and that the plaintiff took the note from one Twitchell with a knowledge of the circumstances under which it was made.

<p>In an action for money had and received wherein the plaintiff claims to recover the price of a quantity of his bark, alleged to have been taken and sold by the defendant, it is only necessary, for the plaintiff to prove, that the defendant had taken and sold liis bark, and received payment therefor, without showing that such payment was in money.</p> <p>Where the proof is, “that the defendant said he had sold the bark,” it is not for the Court 1o decide whether payment had or had not been made therefor, upon the more consideration of the legal moaning and effect of the word, sold; but the question should bo submitted to the decision of the jury, who would also regard the attending circumstances and other facts in the case.</p> <p>And if in taking and selling the bark tile defendant acted as the agent of others, it will not be presumed, without proof, that the money had been paid over to the principals, unless from the nature of the business, or the usual course of transacting it, it would be expected that payment would be made to the principal, and not to the agent.</p>