Volume 22 — Maine Reports

Assumpsit on an agreement, with the common money counts. The agreement was in these words. “ Dancing School. We the signers of this do agree to join and subscribe our equal proportion of the expenses attending a dancing school, to be held in the Hall at R... D. Crocker’s Hotel at Dixmont corner, to commence as soon as the majority of the school may think proper.” There was no date, and it was signed by twenty-six persons, of whom the plaintiff and defendant were two.

<p>When an officer attaches personal property, he should make a true, strict, minute and particular return of his doings.</p> <p>If an officer returns op a writ, that lie has “ attached one hundred and seventy-five yards of broadcloth, the property of the within named defendant,” it is not competent for him, in an action for not producing the property to be taken on the execution, to show that but thirty yards were in fact attached by him.</p>

Exceptions from the Eastern District Court, Allen J. presiding. ' The parties agreed on a statement of facts, from which it appeared, that the action was on a poor debtor’s bond, dated' February 16, 1839. The judgment, on which the execution issued whereon the arrest was made, from which Williams was released on giving the bond, was founded on a note signed by him, and Peaslee and Smith, as his sureties, and was against the three.

Assumpsit upon a draft drawn by one Nay on W. H. Johnson & Co, and accepted by them, payable to the order of G. K. Jewett & Co, and by them indorsed, dated Oct. 20, 1837, to bo paid in three months from date al the Suffolk Bank in Boston. This draft was given in part payment of a note, dated July 30, 1835, made by Johnson & Co. to the plaintiff in part payment of a tract of laud sold to them at the same time by Thayer, the plaintiff.

<p>Exceptions from the Eastern District Court, Allen J. presiding.</p> <p>The action was brought to recover damages to the land of the plaintiffs, occasioned by the alleged carelessness of the defendants in keeping a fire set by them upon their own land, and from which it came upon the land of the plaintiffs. While this action was pending in the District Court, the parties made an agreement, out of Court, under their hands and seals, “ to refer the whole subject matter of dispute about said fire and property alleged to have been destroyed by the same,” to three persons named, and then proceeded to say ; “ and therefore we, the aforesaid parties, hereby agree that the award and final determination of said referees, or any two of them, shall be final and conclusive between the parties in the premises ; and that in case said referees award that the plaintiffs recover nothing, then the plaintiffs are to become nonsuit in said action, and the defendants are to recover their legal costs; and in case the referees award that the defendants shall pay the plaintiffs’ damages, then the defendants are to be defaulted in said action for such sum in damages, as shall be awarded by said referees, and shall pay the plaintiffs their legal costs. Said referees are to make their award in writing, to be signed by them, or a majority of them, and returned to Court, sealed, and to be opened by the Court and filed in the writ in said action, and not subject to any revision or alteration of the Court on exception by either party ; but execution is to issue thereupon against the plaintiffs or defendants according to the award as aforesaid of said referees.”</p> <p>The referees, after stating a notice and hearing of the parties, “ do award to the plaintiffs in the case the sum of one hundred dollars as damages.” The report was signed and returned into Court in manner provided in the agreement.</p> <p>The defendants made several objections to the acceptance of the report, stated in the bill of exceptions, and relied on in the argument, but having no reference to the ground of decision in this Court. The bill of exceptions stales; “and now the Court having heard the aforesaid objections, and duly considered the same, overrule the same, and order that the defendant be defaulted. To which ruling of the Court the defendants except.”</p> <p>among other objections, contended, that the District Court had no power to order a default of the action, under the circumstances. The defendants had a right to proceed to trial in the action; and if the award was offered, to try its validity.</p> <p>insisted that this was like the agreements every day made as to the disposition of actions. The Court hold these agreements valid, although made by counsel, and out of Court, if in writing, Much more should the agreement of the parties under seal, as to the disposition of an- action in Court, be conclusive upon them.</p>

<p>Exceptions from the Eastern District Court, Chandler J. presiding.</p> <p>This was an action of assumpsit on a bill of exchange, drawn by Samuel L. Valentine, as agent of the Penobscot Mill Dam Company, on Amos Davis, by him accepted, made payable to the order of said Valentine, and by him indorsed, and also indorsed by “ Miller & Co.” all which indorsements were set forth in the plaintiffs’ declaration. The defendant denied the indorsement of “ Miller & Co.” and the existence of any such firm. The plaintiffs thereupon introduced a witness, who testified that the indorsement of “ Miller & Co.” was in the handwriting of Adams Daniels, who was one of the persons composing that firm, which consisted of J. R. Miller, I. K. Gilmore and Adams Daniels. The defendants then offered to introduce testimony to show, that the only connexion which ever existed between the persons said to compose said firm of Miller &i Co., arose from a special contract made for the purpose of procuring certain lumber in which each of the parties thereto agreed to furnish certain labor and materials ; that by said contract, neither of the parties thereto had a right to bind the other by any contract, or to use the names of the others as members of a firm; that the said parties to said contract never acted as -partners or hold themselves out to the woild as such ; and that before the date of this bill that contract was fulfilled, and all connexion thereby existing between the parties thereto was at an end. All which testimony so offered the Judge ruled to be inadmissible.</p> <p>The defendants also offered to go info evidence of a failure of the consideration of said bill. This evidence the Judge ruled to be inadmissible. The plaintiffs called on the defendant to prove that notice had ever been given that the co-partnership of Miller, Daniels & Gilmore, was in any way limited or that the same co-partnership had ever been dissolved.</p> <p>The jury returned a verdict for the plaintiffs; and the defendant filed exceptions.</p> <p>contended that as the plaintiff had set out all the indorsements, he must prove them. The plaintiffs gave but prima facie evidence of the indorsement, if any, and we offered evidence to rebut it. This was improperly excluded. Stark, on Ev. part 4, p. 247. This Shut US out of our defence. We could have proved want of consideration.</p> <p>said that the other members of the firm made no objection to the indorsement, and that the defendant could not do it. 7 East, 210 ; 15 Mass. It. 339; 17 Maine R. 180; 16 Maine R. 155; Gow on Part. 54; 2 Shepl. 271; 1 Taunt. 224.</p>

This action was against Littleton Reed, William B. Reed and Arad Thompson; and William H. Johnson was summoned as their trustee. In his disclosure Johnson denies that he is trustee, as he understands the law, and states many facts, on the examination of the plaintiff’s counsel.

<p>Where the plaintiff took a note of the then holder and paid the money for it, on the express promise of the maker to pay the amount thereof to him in sixty days, it is not competent for the maker, in a suit against him on the note, to set up a prior failure of consideration as a defence ; although the plaintiff previously knew the facts in relation thereto.</p> <p>And it can make no difference, if the money so paid for the'note was appropriated at the time to the payment of a note on which the plaintiff was before liable as a surety for the holder.</p>

<p>Exceptions from the Eastern District Court, Allen J. presiding.</p> <p>This question came before the Court on the following objections to the acceptance of a report of referees, made in behalf of the defendant.</p> <p>■ 1. Because the rule was improvidently issued, and not according to the submission, which was to Jacob Hale, Calvin Copeland and Charles C. Cushman, and not to them or the major part of them, as appears by the docket of the Court. 2. Because the report is signed by but two of the referees, and they had not by the terms of the submission authority to act and decide in the premises. 3. Because by the agreement of the parties Jacob Hale was appointed chairman of the referees, but by the rule of Court, C. C. Cushman was appointed chairman. 4. Because C. C. Cushman, not being chairman, acted as such. 5. Because the report is void for uncertainty; and not according to the submission; and because it is not final.</p> <p>While the action was pending, an agreement was made, of which a copy follows: — “ Dec. 31, 1841. It is agreed that the action pending in the D. Court, Penobscot County, Seth Billington v. Dennis Sprague, in which Asaph Leonard comes in under the statute for the benefit of subsequent attaching creditors and defends the action, by leave of Court, shall be referred at the next January Term to Jacob Hale, Calvin Copeland and Charles C. Cushman by rule of Court. Samuel McLellan, attorney for Asaph Leonard. Abner Knowles attorney to Billington.”</p> <p>Certain entries by the clerk on his court docket were referred to as part of the exceptions, and were as follows : —</p> <p>“ Selh Billington v. Dennis Sprague.</p> <p>“October Term, D. C. 1840. Asaph Leonard has leave to come in and defend, and has filed his bond approved.</p> <p>“ January Term, 1842. Referred to Jacob Hale, Calvin Copeland and Charles C. Cushman.”</p> <p>The rule, made out by the clerk, on which the report was made, had Cushman’s name as the first of the referees, instead of the last, as it was on the agreement; and concluded with : “ The report of whom or a major part of whom, to be made as soon as may be; judgment thereon to be final; and if either party, on due notice, neglect to attend, the referees to proceed ex parte.”</p> <p>The referees made their report at the May Term, 1842. It was signed by two of the referees, and the third made a certificate that he was present at the hearing and adjudication, and that the report was presented to him for his signature, but that he declined signing it, because he differed in opinion. The report, after stating that they had “ duly notified the parties therein named, as also Asaph Leonard, who was permitted by the Court to come in and defend as subsequent attaching creditor, met them,” &c., says, that the referees “ do award and determine, and this is our final award and determination in the premises, that the said Seth Billington do recover of -the said Dennis Sprague the sum of six hundred and four dollars and twenty-eight cents, debt or damage, and of the said Asaph Leonard such costs of reference- and damages as he may be legally entitled to pay; and costs of Court, to be taxed by said Court, of said Sprague. Given under our hands,” &c.</p> <p>The exceptions then set forth, that “ it appeared in evidence that S. McLellan, counsel for both Leonard and the defendant, offered a rule similar to the one presented, except that C. C. Cushman’s name was first; that was noticed, but both were before the referees at the same time. J. B. Hill, Esq. counsel for the defendant, testified that he was not aware, at the heaving, of the error in the rule, and that if he had known it, he should have objected to the further hearing, which last evidence was objected to. C. C. Cushman, Esq. one of the referees, testified that no objection was made -to the rule that was used, and that the reason of using it instead of the other was, because the parties were notified under it. The several objections of the defendant’s counsel the presiding Judge overruled, and accepted the report.</p> <p>“ To the above ruling of the Court the defendant excepts, and prays that his exceptions may-be allowed.</p> <p>“ By John Appleton, Attorney for Leonard.”</p> <p>At the June Term of this Court, 1842, the case was continued nisi to be argued in writing; and written arguments were afterwards furnished.</p> <p>By the agreement of the parties and by the entry on the docket this action is to be referred to three individuals named. The reference was not, nor was it intended to be a reference to three or a major part. This agreement is to be construed according to its legal effect.</p> <p>A submission to arbitrators, is a delegation of power for a mere private purpose; it is necessary that all should concur in the award, unless it is otherwise provided by the parties. Thompson J. in Greene v. Miller, 6 Johns. R. 39, and cases cited.</p> <p>Unless it be expressly provided in the submission, that a less number than all the arbitrators named may make the award, the concurrence of all is necessary ; &c. Kyd on Awards, 106 ; 1 Dali. R. 119, 293 ; 4 Watts, 75.</p> <p>They would go too far were they to infer an authority not intimated, by any expression of the parties to their submission, to the three arbitrators, arising constructively by an unnecessary implication from the terms of the submission. Towne v. Jaquith, 6 Mass. R. 49.</p> <p>The contract of submission is to govern and by that all three are to decide, not two.</p> <p>The reference is to be “ by rule of Court.” But the object of a rule of Court, is only by the process of the Court to carry out more effectually the contract of the parties. It must correspond to that contract, from which alone it derives its existence. It cannot be altered, varied, or changed by the Court, or its officer. If legal, it is binding on all.</p> <p>To change the agreement from a submission to three to a submission to three or the major part would be an alteration of the agreement. Had either of the parties interpolated “ or a major part,” without the consent of the others, it would be a forgery. The clerk cannot do that, any more than a party. Being a contract binding on both, it can be altered in any essential part only by concurrence of both.</p> <p>It was the duty of the Court to have carried into effect the agreement of the parties and to have made the rule conform to the agreement to refer which is the basis of all proceedings.</p> <p>“ When the submission is to three persons, an award made by two of the three is bad although in the rule issued by the prothonotary, two of them were authorized to make an award ; no such authority being contained in the submission.” Witty v. Tentman, 4 Watts, 75.</p> <p>Where an agreement to refer a suit appointed three persons as referees without giving authority to any two of them to report, and the clerk by mistake expressed the rule in usual form, the Court set aside the report made by only two of the referees. Tetter v. Rapesnyder, 1 Dallas, 293.</p> <p>The Court on the authority of these cases should have set aside the award.</p> <p>A rule agreed on by the parties cannot be enlarged by the Court without the parties’ consent. Rice v. Clark, 8 Vermont R. 104.</p> <p>The award is void for uncertainty, and for not following the submission.</p> <p>The reference was of this action, which was on three notes signed by defendant.</p> <p>The award is, that Billington do recover of Sprague $604,28, damage, and of Asaph Leonard such costs of reference and damages as he may be legally entitled to pay, and costs of court to be taxed by the Court. The plaintiff recovers of Sprague, $604,28, and costs of court; of Leonard such costs of reference and damages as he may be legally entitled to.</p> <p>That the award is void for uncertainty, in reference to the costs of reference, and damages, is abundantly obvious, no costs of reference, no damages are fixed. The whole is as indefinite as can be conceived. Now such an award, one so vague and uncertain will never be supported.' No judgment can be rem dered at present as two items are yet undetermined.</p> <p>The report does not conform to the submission.</p> <p>A report is bad which refers to the Court, what was referred to the referees. Kingston v. Kincaid, 1 Wash. C. C. R. 448,</p> <p>A report finding that the sum of £75 was due the 3d of Mareh last was set aside for uncertainty. Young v. Rubens, 1 Dal. 119.</p> <p>An award to pay the costs of arbitration, without saying how much is to be paid, is void. Schuyler v. Vanderveer,- 2 Caines, 235.</p> <p>An award to give security for certain sums is void for un.? certainty. 3 S. & R. 340; 9 Johns R. 43.</p> <p>As to awards void for uncertainty, see Caldwell' on Arbitra-ilion, Am, Ed, 117, and seq,; Ky.d on Awards, 194.</p> <p>The award then being uncertain, as to costs and damages, is void. "</p> <p>The defendant’s counsel’s first objection to the acceptance of the report is, because the rule was not made out by the clerk in conformity with the record. And this presents the question, whether or not, when an action is referred “ by Rule of Court” to three individuals, the clerk is authorized to issue a rule authorizing the three or a major part of them to report.</p> <p>That the clerk is so authorized, I infer from the invariable and uniform practice of all clerks so to issue rules, when a reference is to three, in this county, for the last twenty years; and the Court on inspection, will perceive in the copy of the rule annexed a blank space in which to insert “ a major part.”</p> <p>But assuming, that such is not the fact, and that the defendant’s objection is valid, what consequences hereafter are to follow? Most assuredly writs of error and a reversal of judgments in all such cases, and a glorious harvest for the profession. And the defendant’s counsel at this late day shall have all the credit of having made the discovery, and of springing a trap upon the community and catching his own clients.</p> <p>None of the authorities cited by defendant’s counsel support his proposition; they refer to arbitration and arbitrators, and not to rules issued by Courts, or to statute references. Between the two classes of cases there is a broad distinction ; by the former it may perhaps be said, that power is delegated, as the defendant’s counsel has remarked, “for a mere private purpose,” that the arbitrators receive their authority and jurisdiction solely from the agreement and assent of the parties, and that such authority and jurisdiction cannot be controlled by statute or the common law without affecting their free agency. But see American Common Law, 1 Vol. p. 465, and cases cited, viz. 1. McCord’s S. C. R. 13?. Lockhart v. Kidd, 2 Const. R. 217. Courts have no control over an arbitrament excepting incidentally, when the award is pleaded in bar. Otherwise with rules of Court and statute references, such being for the advancement of public justice. 1 Bos. & Full 239.</p> <p>The authority' of Courts to issue a rule is derived from the common, law, and is not a statute regulation. The power of Courts over the report of referees entered into before a justice of the peace is conferred by statute; and their power over both, when regularly before them, is precisely the same. The latter remedy differs only from the former, inasmuch as it dispenses with the necessity of suing out a writ and entering the same in order to give the Court jurisdiction.</p> <p>So in England, until the statute 9 & 10 W. 3. c. 15, § 1, Courts had no authority to issue a ruleexcept in cases depending in Court. “ The intent of this act was to put submissions where no cause was depending in Court, upon the same footing with those, where the cause was depending, and it is only declaratory of what the law was before in the latter case.” 2 Petersdorff’s Abr. 79 [110] Note.</p> <p>Even so our own statute; Itev. St. c. 138, is declaratory of what the law was before as to references entered in actions depending. See Sec. 8 “ The referees, &c. shall have the same authority, as those appointed by a rule of said Court.”</p> <p>See Sec. 2, as to the substance of the prescribed agreement. “ The report of whom (or a major part of whom,)” &c. The part embraced within the parenthesis to be inserted when the referees consist of any number more than one or two, as by this act the parties may submit their controversy to one or more referees. It is otherwise in the statute of 1821, c. 78, where the form prescribed is to three referees, in which case the paenthesis is omitted, but the words retained. The authority ' therefore given by statute to referees, is; that a majority may report, and consequently is “ the same authority” referred to in Sec. 8.</p> <p>But the defendant’s counsel, as though aware of the fallacy of his proposition on general principles, attempts to support it by the introduction of the agreement to refer.</p> <p>This paper was designed and had no other force and effect than to convey to the Court the assent of the parties to refer the action “ by rule of Court,” and to authorize the clerk to make the entry in the absence of one or both of the attorneys. The Court will notice the expression, “ by rule of Court," which is general in terms and must mean such a rule as is issued in ordinary cases, which was the rule in fact issued; and which, as 1 have attempted to show, was in accordance with the principles of the common law and the uniform practice of our Courts.</p> <p>Bul I consider this question settled in favor of the acceptance of the report on authority, in our own State. Inhabitants of Cumberland v. Inhabitants of North Yarmouth, 4 Greenl. 459. This case I consider to be precisely in point. I have stated that none of the authorities cited by defendant’s counsel support his proposition. Perhaps I ought to except the case of Tetter v. Rapesnyder, 1 Dali. 293. This case I consider nb authority; it was only the decision of an inferior Court, and whether an inferior Judge or not, we have no means of determining; excepting from the absurdity of the decision. Mr. Dallas, in 1788, must have been hard pushed for materials for his reports, when he was obliged to resort to the decisions of a Judge of the Court of Common Pleas; as also the defendant’s counsel when he is compelled to resort to those decisions in support of his propositions. And besides we do not know whether references in Pennsylvania at that time were regulated by statute or the common law.</p> <p>But I still have another and, as I apprehend, a full and complete answer to this proposition.</p> <p>The evidence discloses that the tenor and terms of the rule, as issued by the clerk, was known to the counsel at the time of the reference. “ It appeared in evidence that S. McLellan Esq., counsel for both Leonard, and the defendant, offered a rule similar to the one presented except,” fc.</p> <p>Now it cannot be argued very consistently, that McLellan, who was the principal counsel in the case and who signed the agreement to refer, should have taken out a rule and produced it before the referees, and at the same time was ignorant of its contents. Such a supposition would argue gross ignorance and carelessness on the part of counsel. Now I contend, indeed, T think 1 may assume, that under these circumstances, after having proceeded to trial before the referees, without objection, and putting the plaintiff to the hazard of an unfavorable issue, that when he finds the report against him, it is too late to make his objection ; it is unjust; yea, it is dishonorable. It is a kind of finesse not to be sanctioned in a court of justice ; it is like a party, who, knowing of some legal objection to a juryman during the progress of a trial, but keeping it concealed until finding a verdict against him, and then comes in for the first time and moves the verdict to be set aside for that cause; or like a party who suffers a witness to be examined without objection, and, then moves for a new trial, after having tried an experiment, in consequence of interest iii the witness which he knew as well before as after the trial. Fox v. Ilazeltine, 10 Pick. 275.</p> <p>The next and only other objection made by the defendants counsel to the acceptance of the report is, “ that it is void for uncertainty.”</p> <p>So far as it regards Sprague, the defendant of record, and against whom we claim judgment for debt and costs of Court, I am unable to perceive any uncertainty. So far as it respect's Leonard, in this suit we do not expect, neither can we in any event recover any thing, and we never claimed any thing, and that portion of the report which alludes to Leonard was intended to have relation hereafter to his bond; if by force of the statute the plaintiff should be entitled to recover any thing. Rev. St. c. 115, <§> 117.</p> <p>Now if this “ defence had not been made” by Leonard, what would have been the judgment against the defendant, Sprague ? Certainly nothing more nor less than the debt and costs of Court, for Sprague had no concern with the reference; he was willing to be defaulted. Leonard caused the action to be referred; and the referees very properly, and in strict conformity with the statute, awarded debt and costs of Court against the defendant, Sprague.</p> <p>By Sec. 115 of the same statute, it is provided, “If the Court shall admit the petitioner to defend against such prior suit, he shall give bond, or enter into recognizance with sufficient surely, in such sum, as the Court shall order, to pay to the plaintiff in such previous suit, all such costs and damages, as the Court shall adjudge and decree to have been occasioned to the plaintiff, by such defence.” Now, that part of the report respecting Leonard, viz. “ and of the said Asaph Leonard such costs of reference and damages as he may be legally entitled to pay,” is intended particularly for the consideration of the Court “ in awarding execution on the recognizance,” and to inform the Court that costs of reference was not included in the amount awarded against Sprague. And if the Court, when the subject matter of the recognizance comes properly before them, (which cannot be until after the termination of this suit,) should adjudge that the plaintiff was legally entitled to recover the costs of reference of Leonard, then the Court would probably give the plaintiff an execution for that sum to be taxed subject to their inspection and approval. And the same consequences would have followed had the referees said nothing about Leonard and costs of reference, and in this point of view, that 'part of the rule is immaterial. Mr. Appleton objected to the acceptance of the report as attorney for Leonard, and if that part of the report is void for uncertainty, why should Leonard complain ? It cannot injure him by accepting the report as against Sprague, since the execution will issue only against Sprague.</p> <p>The cases cited on this point have no relevancy to this case. They relate to parties of record.</p> <p>But, “ where part of the award was void for uncertainty, and is not so connected with the rest as to affect the justice of the case, the award is good for that part.” 1 Wheeler’s American Common Law, 450, citing 'Marlin v. Williams, 13 Johns. R. 264, and Adams v. Willoughby, 6 Johns. R. 65; Kyd on Awards, 280; Clement v. Durgiri, 1 Greenl. 300.</p>

<p>This was ari action of replevin for 600 bushels of salt-, and the question was, whether the property of the salt when replevied, was in the plaintiff. For eight or ten years before thfe trial the plaintiff had been and then was owner of the island of Campo-bello, in the province of New Brunswick, on which island he resided. For many years prior to and on the 22d of September, 1835, William McLane was the tenant under the plaintiff of a wharf and store on said island. On the above named day the plaintiff distrained the said salt/ which was then in that store, for rent, due on said lease to him from McLane, which salt was then the property of the defendant. The same not having been replevied by the said Boyle, was sold at auction and purchased by the plaintiff. Prior to such sale and after the distraint was made, the directions Of the act of said province, c. 21, <§> 4, were complied with. The salt remained in the store till the spring of 1836, at which time the defendant, without the permission of knowledge of the plaintiff,- took and removed the salt to a store at Lubec in this county, entered the same at the custom house, und paid the duties, immediately after which the plaintiff replevied the salt. At the trial, before Shepley J. at the July Term, 1840, one ground of objection against the' right of the plaintiff to distrain the salt, was, that the same was so dis-trained in the said store where the same had been deposited on storage by the defendant,* with the consent of said McLane, after he had brought the samé from St. John for the purpose of exportation; and that the Said store was at the time a common warehouse for the deposit of goods on storage paid to said McLane. Evidence to prove the abpve facts was produced on the trial.</p> <p>The defendant offered in evidence the deposition of the said McLane, to the admission of which the plaintiff objected ; and being inquired of by the Court for what reason, answered, because he was the party whose property was distrained. The Judge remarked, if there was no other reason, it must be admitted ; and it was admitted.</p> <p>The counsel for the plaintiff contended, that inasmuch as the defendant, after the salt was distrained, and he had immediate notice of it, did not commence an action of replevin of the same, in the manner- pointed out in the annexed copy of the statute of the province, and thereby stop all further proceedings as to the distress, but lay by and permitted the whole of the same to be sold at auction, that therefore by such sale the defendant’s property in said salt was divested, and the same was vested in the purchaser, whether the same salt was liable or not liable to be distrained; and that the proper and only remedy of the defendant was an action of trespass, or trover, against the landlord, in which damages would be recovered equal to the injury sustained by means of the distress and sale, if the plaintifl' had no legal right to dis-train the salt.</p> <p>Alfred L. Street, a counsellor at law in the Province of New Brunswick, testified that the course of proceedings in distress for rent is the same in England and New Brunswick, except and so far as it is altered by the Provincial statute ; and that the common-law of England in relation to distress for rent is in force in the province of New Brunswick.</p> <p>The Judge instructed the jury, on the point here presented, that a common warehouse, in the sense used in the law relating to this matter, was a building, or an apartment in one, used and appropriated by the occupant not for the deposit, safe keeping or selling of his own goods, but for the purpose of storing the goods of others, placed there in the regular course of commercial dealing and trade, to be again removed or reshipped ; and that if they should find from the testimony, that the building or apartment in which the salt was seized, had acquired the character of a warehouse in the sense stated, and that the salt was the property of the defendant, and had been there placed by him in the regular course of trade, the duties being paid, to be stored and again removed or re-shipped, it was not liable in law to be taken by a warrant of distress for rent in arrear, due from the lessee of that building, and that the proceedings in New Brunswick, if regular, would not under such circumstances have the effect to transfer the property in the salt to the plaintiff.</p> <p>The verdict for the defendant was to be set aside and a new trial granted, if these rulings and instructions were erroneous.</p> <p>The following were proved to be true extracts from “ The Acts of the General Assembly of Her Majesty’s Province of New Brunswick.”</p> <p>“Chap. XXL</p> <p>“An Act to regulate the proceedings in actions of replevin, and to enable the sale of goods distrained for rent, in case the rent be not paid in a reasonable time, and for the more effectual securing the payment of rents and preventing fraud by tenants. Passed the 14th March, 1810.</p> <p>“ IV. And be it further enacted, That when any goods and chattels shall be distrained for any rent reserved and due upon any demise, lease, or contract, whatsoever, and the tenant or owner of the goods so distrained, shall not within five days next after such distress taken and notice thereof (with the cause of such taking) left at the dwellinghouse or other most notorious place on the premises, charged with the rent dis-trained for, replevy the same, with sufficient security to be given to the sheriff, according to law, that then in such case, after such distress and notice as aforesaid, and expiration of the said five days, the persons distraining shall and may, with the sheriff, or under sheriff of the county, or with a constable of the parish, city or place where such distress shall be taken (who are hereby required to be aiding or assisting therein) cause the goods and chattels so distrained, to be appraised by two sworn appraisers (whom such sheriff, under sheriff or constable are hereby empowered to swear) to appraise the same truly according to the best of their understandings; and after such appraisement shall and may lawfully sell the goods and chattels so distrained, for the best price that can be gotten for the same, towards satisfaction for the rent for which the said goods and chattels shall be distrained, and of the charges of such distress, appraisement and sale, leaving the overplus, if any, in the hands of the said sheriff, under sheriff, or constable for the owner’s use.”</p> <p>At the term at which the trial took place, it was agreed that the case should be argued in writing; and arguments were afterwards sent to the Court.</p> <p>The first ground of our motion for a new trial, is the admission of the deposition of William McLane, on the application of the defendant, though objected to by the plaintiff Before the objection had been made, we had introduced proof that McLane had, for several years been the tenant of Owen, and that the salt had been distrained by him for rent, in the store, being part of the leased premises; and that the salt, when dis-trained, was the property of said Boyle. On this ground our objection, on account of McLane’s interest, was placed. His interest is this; Boyle’s salt was, on the leased premises, dis-trained and sold for payment of rent due from' McLane to Owen; and tire question, then depending before the Court, was, whether the same was lawfully distrained and sold; for, .if so, then Boyle had thereby, in effect and legal contemplation, paid a sum of money for McLane; he had paid his debt, or a part of it to Owen; and, in consequence, had a legal right of .action against McLane to obtain a reimbursement of it. It was therefore for McLane’s interest to defeat the present action, and, by so doing, to relieve himself from all liability to Boyle, if he could by his testimony establish facts, shewing that the salt was illegally distrained and sold. Skillinger v. McCann, 6 Greenl. 364.</p> <p>The second ground of our motion for a new trial has respect to the instructions of the presiding Judge, as to the effect of the sale of the salt, after it had been distrained, and the proceedings, prior thereto, had taken place, in relation to it. It is familiar law that certain goods are not liable to distress for rent; as goods of a stranger, though found on the leased premises, when there are sufficient goods of the tenant, which may be legally distrained. So also goods which are protected, as being stored in a common warehouse or in the possession of persons to be wrought in various ways which need not be here mentioned. So also certain beasts and articles in use, &c. And no articles can be distrained by a landlord, when no rent is due. In all these cases the law furnishes an appropriate remedy to any person, whose rights or property may be invaded in any of the before mentioned circumstances. This principle no one can violate with impunity. But it is equally true that it is the province, and in the power of the legislature, to prescribe any constitutional and lawful mode in which a person injured in his property, shall seek redress, either in procuring a restoration of the specific property, or damages for the injury he may sustain by an illegal disposition of it. Of these provisions there is a vast variety in all governments. In Gedney v. Inhab. of Tewksbury, 3 Mass. R. 307, and Smith v. Drew, 5 Mass. R. 514, the Court say, “ When a statute gives a right and furnishes the remedy, that remedy must be pursued.” We may add that when the remedy, as prescribed, is to be employed under certain limitations, as to time or circumstances, it must be sought and enjoyed accordingly.</p> <p>We will first examine the cause merely by the language of the section of the Provincial statute, and its plain provisions, conditions and directions. The whole statute is, from its nature, a general one; applicable to all distresses for rent. In the first part of the section we meet with this idea. The language is, “ if the tenant or owner shall not within five days next after such distress taken and notice thereof, &c. &c. replevy the same, with sufficient surety given, &,c. &c.” then the goods shall and may be sold at auction. The use of the words “ tenant or owner,” shows that the legislature had in view property distrained belonging either to the tenant or some other owner i yet the same provision as to the replevin is applicable equally to both; and in the present case there was no replevin to stay the statute proceedings, terminating in a sale of the distress. What reason had Owen to suppose that Boyle would ever assert any claim to the salt ? By omitting, after notice, to replevy the salt, he impliedly assented to a sale, relying on a future remedy for his damages. What course could Owen pursue ? If he had abandoned the salt and proceeded no further and no sale had been made he would have been liable to an action for damages, as was expressly decided in the case of Smith v. Goodwin, 2 Neville & Manning, 114. Besides, he had no other mode of obtaining the expense of the distress, notice and appraisement, as provided for in the fourth section, lie followed the plain directions of the statute from the beginning to the cud, as to the course of proceeding with the distress. This leads to the inquiry, “ what is the effect of a lawful sale of a chattel ? There is but one plain answer to this question. It divests the property of the owner and vests it in the purchaser. A legal sale surely is not a nullity. Can such a sale be condemned as such, and the purchaser lose the purchase money ? The question is a general one; not merely applying to this case.</p> <p>The Judge instructed the jury, that if the salt, when it was distrained, had been the property of McLane, the tenant, instead of Boyle, inasmuch as the sale was not prevented by a replevin, such sale would have transferred the property to the purchaser, though the same was not liable to distress. The fourth section recognizes no such - distinction ; but excludes it; the section is general, and embraces all kinds of distresses, without considering whether they are lawfully made or not; the question as to the lawfulness of it is to be decided in an action of replevin, if the owner prefers that mode; or, he may let the distrainor proceed and sell the distress, and seek recompense of the landlord in an action of trespass or trover and recover damages, if the distress was unlawful. Again, what good or plausible reason can be assigned why a distress and sale at auction of goods belonging to the tenant, though not liable to distress, should convey a good title to the purchaser, and yet that such a seizure and auction sale should convey no title, if the property belonged to any one else, or if the distress was made when no rent was due ?</p> <p>Chancellor Kent seems to recognize no such distinction as that which we have been considering. In volume 3d, page 476, he says, “ when rent is due and unpaid, the landlord, on demand, may enter immediately, by himself or his agent, upon the demised premises and distrain any goods and chattels that are to be found there belonging to the tenant or others.” He then mentions certain articles not liable to distress; and, on page 180, proceeds thus, “after the distress has been duly made, if the goods are not replevied within, &c. after notice, the goods shall be appraised and sold at public auction.” Judge Blackstone, volume 3d, page 13, when speaking of goods which have been distrained, says, that they “ must remain impounded till the, owner makes satisfaction or contests the right of distraining by replevying the chattels; a replevin answers the same end to the distrainor, as the distress itself; since the party replevying gives security to return it if the right be.determined against him.”</p> <p>By the language of the provincial statute, the right of preventing a sale of the salt and the effects of such a sale, was granted to Boyle conditionally; and the condition was a precedent one; and it was not complied with. Our argument proceeds on the principle of perfect respect for the rights of all parties, and a perfect protection of the rights of Boyle; but, by his own election and conduct, that protection must be enjoyed in the form of' damages, if any rights have been violated. He has waived his right, if he has any, to all other protection and remedy.</p> <p>Very numerous cases in the English reports support the position for which we are now contending. Francis v. Wyatt, 3 Burr. R. 1498; Parry v. House, 1 Holt, 498 ; Bradbury v. Wright, 2 Doug. 624; Newman v. Aderton, 2 New. R. 224; Braddytt v. Jones, 4 Doug. 52 ; Fenton v. Logan, Bing. 676; Bead v. Burley, Cro. Eliz. 596; Davis v. Gyde, 2 Adol. and Ellis, 623 ; Walker v. Rumbald, 12 Mod. 76; Davies v. Powell, Willes’s R. 46 ; Moss v. Gallamore, 1 Doug. 279; Brown v. Shevilt, 2 Adol. and Ellis, 138; Gilman v. Éaton, 3 Brod. & Bing. 75; Thompson v. Mashita, 1 Bing. 283 ; Shepherd v. Case, 5 Car. & P. 418; Tenner v. Yolland, 2 Chitty’s R 167. The prescribing course of proceeding and series of decisions in this class of actions prove how the principles and practice of law are established and understood in the English courts, and which are similar in the province of New Brunswick ; and we also further believe that they are applied to all cases of distress whatever, for rent due, and sale of the distress without distinction; whether the property distrained was liable to distress or not; or whether it belonged to the tenant or another owner. Bradley, in liis* treatise on Distress, neither makes, nor alludes to any distinction between the above cases; but on page 228, after prescribing the forms respecting the appraisement of the goods and the oath of the appraisers, adds, “ the next thing is to search the sheriff’s office to see if the goods have been replevied; and if they have not, and the rent and charges are still unpaid, then to sell the goods, after they have been appraised?’</p> <p>We will now present to the consideration of the Court three more cases, which we presume are decided on principles which completely show that we are entitled lo a new trial on the merits of the cause. Simpson v. Hariopp, Willes’s R. 512; Gorton v. Faulkner, 4. T. R. 564; Matthias v. Mesnard, 2 Car. & P. 353.</p> <p>The same principle was sanctioned in each of the last three cases, though in Gorton fy al. v. Faulkner, the verdict was for the defendant. In each of the other two the property dis-trained was not liable to distress when taken, and did not belong to the tenant who was indebted for the rent. In those two cases the facts exactly resemble those in the case of Owen v. Boyle; the property distrained was not liable to distress and did not belong to the tenant. The same judgment would have been given in the ease of Gorton &f al. v. Faulkner, had the property been in actual use when it was distrained. So that the whole Court, in the case of Simpson v. Hariopp, and Best C. J. in Matthias v. Mesnard, concur as to the law; and the approving opinion of the learned Judge Duller gives additional weight to tire decision in Simpson v. Hariopp ; as stated by him in Gorton fy al. v. Faulkner.</p> <p>In the most careful examination which we have been able to make, not a single case or sentence has been found, in which an auction sale of a distress has been a question, or the validity of a title, under such a sale, doubted. On the contrary, the verdicts in cases of trespass and trover are evidently intended as a compensation for the goods distrained and sold, when on trial it appeared that the distress was unlawful. “ When a distress and sale for rent are made when no rent is due, the owner may recover of the distrainor double the value of the goods distrained and sold with full costs.” Comyn, Distress, D. 9. The probable reason is, that he must have known that he was acting unlawfully; but in other cases single damages only are recoverable.</p> <p>We conclude this long argument with respectfully observing ' that in the present case the powers of the Court are more limited than they are in those cases where théy are examining the construction of the statutes of this State, or the correctness of the construction which may have been given to them, or the manner in which the principles of the common law have been applied in certain cases, which are the subject of re-examination. In forming their decisions, when thus sitting in judgment, the whole province of judicial investigation is opened to our Courts, so far as our laws prescribe rules of action, and subject principles to the government of their sound and legal judgment and final decision. But in the case now before the Court, permit us to inquire, what is the legal discretion of the Court, and what are its legitimate boundaries ? If the plaintiff ever acquired any title to the salt in question, he acquired it under the law of New Brunswick, as administered or executed by the officers of the government of that province; and it seems to be merely a question of fact what that law is. We apprehend that our Courts have no power to revise the decisions made in any foreign court, or give any construction of an English or provincial statute different from that which the Courts of England or New Brunswick have given; or adopt a course of proceeding, in carrying into execution their statutory provisions, different from that which has been adopted there; or give less effect to a sale of a distress, according to the act of New Brunswick, in one case, than in another, where, by the course of proceedings and practice in that province, no such distinction appears in the reports relative to this class of cases. As we have no such system in this State as the summary process of distress for rent, it is most respectfully submitted to the Court whether a safer course can be pursued in such a case as the present, than to follow in the footsteps of those whose province it was to execute the laws, by which the plaintiff, on appealing to them, became the purchaser of the property demanded in this action.</p> <p>We apprehend that, from our examination and argument, the following conclusions are legitimately drawn and firmly established.</p> <p>1. That certain property may be legally distrained for rent; and that certain property cannot be legally distrained for such purpose.</p> <p>2. That there is but one provision in the province statute which points out the course to be pursued by the person dis-training, as to notice, inventory, appraisement and sale of the property distrained, when it is not replevied.</p> <p>3. That the right to replevy distrained property, whether the distress is lawful or unlawful, exists in all cases, whether exercised or not, in the manner provided by the statute.</p> <p>4. When such right of replevying the property, is not exercised, and a sale thereof prevented, such sale, made according to the provisions of the statute, transfers the property to the purchaser.</p> <p>5. And that the construction of said section of the statute by, and the proceedings thereon in the English Courts, furnish evidence of the correctness of the four preceding conclusions.</p> <p>The counsel for the defendant proposes to do no more than submit the following heads of an argument.</p> <p>First. The deposition of McLane was properly admitted:</p> <p>1. The objection taken by the plaintiff’s counsel was not warranted by the facts in the case. The property taken was not McLane’s.</p> <p>2. At the former trial McLane’s deposition was objected to generally, on the ground of interest, and the defendant shewed that he was released by him before testifying, and the deposition was thereupon read. The limited character of the objection taken at the last trial rendered it unnecessary to shew a release.</p> <p>3. But assuming that McLane was interested, and was not released, his interest was a balanced one. If the plaintiff prevails, the witness must account with the defendant for the value of the salt. If the defendant prevails he must pay the rent.</p> <p>Second. The plaintiff’s counsel assume, that the legal effect of the statute proceedings in the Province of New Brunswick, in reference to the salt, was to divest the property of the owner, the defendant, and to vest it in the purchaser, the plaintiff. This position is denied ;</p> <p>1. It is not supported by the numerous cases cited and commented upon by plaintiff’s counsel. They go to shew the particular remedy each party sought, for a violation of his right of property in those cases. They by no means establish the proposition contended for, that replevin, trespass or trover against the landlord or his servants is.the only remedy a party has for an injury to his property in distraint for rent. The legal effect of a sale on distress for rent, where the property distrained belonged to a third person, was not raised or considered in any one of them. Nor is it fairly déducible from all the cases cited. They merely show what property is, and what is not, the subject of distress in England, and consequently in the Province of New Brunswick ; and they establish conclusively, what this Court has already decided, that the salt in controversy was not, under the circumstances, liable to that process.</p> <p>2. The position taken by the plaintiff’s counsel is against a fundamental principle of the British constitution. It goes to deprive the subject of his property without judgment of law. 4 Bl. Com. 425 ; 29 ch. Magna Charta.</p> <p>A judgment of law without notice will not bind the debtor nor his property. Buchanan v. Rucker, 9 East’s R. and cases cited in notes; Sawyer v. M. F. &/■ M. Ins. Co. 12 Mass. R. 291 ; Bradstreet v. Neptune Ins. Co. 3 Sumner, 600.</p> <p>Much less will it bind the property of a third person not a party to the suit.</p> <p>If the principle contended for is correct, then a judgment creditor may levy his execution on the property of a stranger, and make a good title to the purchaser. This is against the first princples of natural justice.</p> <p>But it is said that the statute of New Brunswick has created a right, and given a remedy for its violation, which alone can be pursued. If the statute has created the right to take the property of a subject without judgment of law, or without his consent, and without compensation, it is unconstitutional.</p> <p>But the Act in question creates no such right, and confers no such power. It merely regulates proceedings, between the parties, in case of distraint for rent. It gives the tenant, or owner of the property distrained, a choice of remedies, a right to replevy the distress within a limited time, or, abandoning the specific chattel, to go for damages. It is silent as against whom he may bring his action. It does not say, that he shall not have bis remedy against the vendee. The cases cited by the plaintiff’s counsel show that he may have his action against the landlord or his servants. Upon principle the vendee also is liable.</p> <p>3. It is against the authority pf decided cases. The purchaser acquires no title to property which he buys at a sheriff’s sale unless it belongs to the judgment debtor.</p> <p>Yelverton’s Reports, 180, (a) in the notes, where are eited: Cooper v. Chitty, 1 Burr. 20; Shaw v. Tunbridge, 2 Bl. R. 1064; Sheric v. Huber, 6 Binney, 2; Stone v. Ebberley, I Bay, 317 ; Pettingell v. Bartlett, 1 N. H. R. 87.</p> <p>In Cooper v. Chitty, (which was the case of the assignees of a bankrupt against the sheriffs of London for taking the goods of the bankrupt after the act of bankruptcy and before the assignment, and a sale after the assignment,) the counsel for the plaintiff contended that the action could be maintained either against the plaintiff in the cause, the sheriff, or the vendee of the goods. This principle was not controverted by the defendants’ counsel, and Lord Mans-? field, in delivering the opinion of the Court, says, “It is admitted on the part of the defendants that an innocent vendee of goods so seized can have no title under the sale but is liable to an action.” Again, in remarking upon the cases cited for the defendants, he says, “ None of these cases authorize the sheriff to sell the goods of a third person, and it is admitted the vendee is not protected here because at the time of the sale the sheriff had no authority to sell.”</p> <p>4. But the plaintiff, in the present case, is both vendee and landlord. The case finds that he was affected with notice of the defendant’s rights. He knew, or is presumed to have known, all the facts which made the distraint unlawful; to wit, that the salt was the property of the defendant, that it was placed in McLane’s warehouse on storage and for exportation, and was, therefore, not liable to be distrained for rent.</p> <p>It is an attempt on his part to avail himself of proceedings inter alios under a statute of the Province to deprive the defendant. of his right of property without judgment of law; which this Court will not sanction.</p>

Assumpsit on three notes, dated March 23, 1839, signed by the defendant, and made payable to the plaintiff in specific articles. This action was commenced Sept. 3, 1839.

<p>Where there is a conveyance by the mortgagee to one who had previously acquired a right in the equity of redemption, the rule is well established, that the mortgage will not be considered as extinguished, when it. is for the interest of the grantee to have it uphold, unless the intention of the parties to extinguish it is apparent.</p> <p>Where the conveyance from the mortgagee to the purchaser of the equity of redemption concluded thus; — “ meaning and intending hereby to convey all the right, title and interest now vested in me by virtue of any and all conveyances heretofore made to mo by I. & J. C. Pool, ” the mortgagors; it was held, that no intenion to discharge the mortgage appeared, hut the reverse.</p>

The action was assumpsit on the common money counts, and was brought to recover of the defendant the amount of two bills of one hundred dollars each, of the Commonwealth Bank, Boston, exchanged by the defendant with the plaintiffs on the 12th day of January, 1838, after the failure of the Commonwealth Bank.

Assumpsit on a promissory note given by the defendants ÍO the plaintiff, dated Sept. 16, 1825, payable in one year with interest. Two payments had been made and indorsed thereon, the last of which was under date of March 4, 1828, The action was commenced Jan. 22, 1839. The defendants relied on the statute of limitation. The parties agreed upon a statement of facts, which appeared in the depositions of J. B. Clark, II. S. Favor and L. Morang, taken in 1840.

The facts pertinent to the understanding of this case are stated in the opinion of the Court. The trial was before Emery J. when several other questions were raised. On this point, the jury were instructed, that the levy of the defendant, Cutler, was seasonably recorded, and that he acquired a title to the land in controversy by that levy against the title under which the intestate claimed, the defendants being prior in point of time.

<p>This was an action of assumpsit for $500, for money laid out and expended. The general issue was pleaded and joined. The action was brought under the statute 1821, c. 62, $ 5, for improvements made upon land in possession of the plaintiff upon which the defendant had entered as proprietor. It appeared. that the plaintiff had been in possession of the land, prior to the defendant’s entry, long enough to be entitled to betterments, if his possession had commenced and been continued under circumstances, which would legally give him that right.</p> <p>It appeared that the land in controversy was a part of a half township of land which had been granted to the trustees of Belfast Academy, that in 1825 the plaintiff had agreed with the trustees to survey said half township, to put on certain settlers and to make a road, for all which he was to have conveyed to him 500 acres in the township and also to have 500 acres more, paying therefor thirty-five cents an acre; that the plaintiff performed on his part, and that he located himself upon one of the lots, extending his improvements upon the lots in question, which adjoined that upon which he had erect-. ed his buildings ; and, that the plaintiff was the general agent of the trustees of the Belfast Academy to take care of theif interests upon the half township.</p> <p>On the 16th day of February, 1835, the trustees of Belfast Academy, by their deed of general warranty, conveyed to Ike defendant eighty acres of land, including the land in controversy. The defendant was fully apprised from the beginning of the improvements made by the plaintiff; but the jury found that the trustees at the time they made their deed to the defendant, had not been acquainted with' the fact, that the plaintiff had made improvements upon any part of that land. The jury further found that the value of the plaintiff’s betterments, if he was entitled to recover, was $250,00.</p> <p>The plaintiff did not claim an interest in the land in controversy as any part of either 500 acres, to which he was entitled by the contract; but claimed the same as a disseisor of the trustees. Weston C. J. then holding the Court, ruled that, as he was the agent of the trustees, the plaintiff could not claim rights in this land against them or against their grantee, the defendant. The jury returned a verdict for the defendant, upon which judgment was to be rendered, if the Court should be of opinion that the action cannot be maintained. But if the Court should be of a different opinion, the verdict was to be set aside, a default entered, and judgment rendered thereon for the $250,00.</p> <p>citing 9 Greenl. 62: 3 Fairf. 373 ; 16 Maine R. 60; 6 Pick. 178 ; 3 Fairf. 478.</p> <p>and cited 13 Ves. 103; Paley on Agency, 33; Story’s Agency, 196, 207; 6 Cranch, 148; 1 Mason, 341; 14 Ves. 199; 12 Mass. II. 329; 13 Mass. R. 241 ; 1 Greonl. 348.</p>

Assumpsit against the defendant as indorser of a note of which this is a copy. “ 3378,62. Boston, May 18, 1837. “ Six months from date, value received, I promise to pay to the order of Joseph Whitney three thousand three hundred and seventy-eight dollars and sixty-two cents. “ Luther C. White.” Although dated at Boston, the note„vvas made and indorsed at Calais.

<p>Where there is no rule of Court requiring the clerk to enclose a commission to take depositions to the commissioner under seal, and where the commission contains no directions that the interrogatories should not he seen by the deponent; if they are shown to him before the commission is delivered to the commissioner, this furnishes no legal impediment to the admission of t}ie deposition.</p> <p>In an action to recover the price of sails and rigging, where the plaintiff offers in evidence his original books of entry with his own suppletory oath, it is not competent for him to testify, that he was directed by the defendant to deliver the sails and figging on board another vessel and that he did so deliver them.</p> <p>The creditor is not entitled to recover interest on the amount of articles, charged on account after the expiration of six months from the time of their delivery, by proof, “ that the usual term of credit on the purchase,” of such articles qt the place of the sale, “ was six months with interest after.” The plaintiff would b.e entitled to such interest, only by proof of an agreement to pay it, or by proof of a demand of payment anterior to the date of the writ.</p>

The action was brought on a contract, signed by the defendant, bearing date May 24, 1839. The material facts in the case are stated in the opinion of the Court.

Assumpsit against Smith as the drawer of a bill of exchange of which a copy follows: — “ $1000. Calais, June 12, 1839. “ Ninety days after sight, value received, pay to the order of Duncan Barber & Co. one thousand dollars, and place the same to my account, as per advice. Noah Smith, Jr. “ Isaac Clapp, Esq. Boston.” The bill was accepted by Clapp and indorsed by Duncan Barber & Co., and by the plaintiffs, and - “on account of the Commercial Bank, of New Brunswick.

Debt on a judgment recovered by G. I. Galvin, on whose estate the plaintiff as administrator, at the C. C. Pleas for this county, Sept. Term, 1837, against the defendant.

<p>If the defendant represented himself to be an agent for the owners of a tract of land, when in fact he was not, and by such representation the plaintiff was deceived, and induced to pay him for trespasses committed therecu, an action may bo supported to recover back the amount, so paid.</p> <p>But if the plaintiff has sustained no loss by reason of the false representations, he cannot recover.</p>

Assumpsit for labor performed by the plaintiffs in making a road in the town of Cooper. At a meeting of the inhabitants of the town of Cooper, on Oct. 1, 1838, the following vote was passed. “Voted, that a committee be chosen to lay out and let the remainder of said road to the lowest bidder. Nathaniel Sawyer, Warren Gil-man and James Tyler were chosen said committee.” This vote conferred on the committee all the power they had to act for the town.

<p>The plaintiff, an inhabitant of the Province of New Brunswick, built the brig Thistle^ within that province, in 1834, and has since been her sole owner. While the brig was on the stocks, the plaintiff requested Buck & Tinkham, merchants residing at Eastport in this State, and doing business there in partnership, to procure her to be insured; and on the 4th of December, 1834, they wrote to the defendants, merchants in the city of New York, doing business there in co-partnership, in the name of Peter I. Nevius & Son, requesting them to have-the insurance effected. Insurance was obtained by them on the brig in the same month, the risk commencing Dec. 1, 1834, for one year, the policy stating that, “ Peter I. Nevius & Son', on account of whom it may concern, do make insuranee,” &c.; and the insurance was renewed in the same way in 1835. In 1836 the partnership of Buck &. Tinkham was dissolved, and Buck continued the business on his own account, and had the same authority from the plaintiff. The policy was renewed, in the same manner, in 18-36, 1837, and 1838. In the first, and in all subsequent letters from Buck & Tinkham, and from Buck to the defendants, requesting them to effect the insurance, the defendants were informed that the plaintiff was owner of the brig, and throughout the transactions, it was understood, that the insurance was procured for the benefit of the owner. In November, 1838, being prior to the last renewal of the policy, the brig sustained a partial loss upon the coast of Ireland, and the fact came to the plaintiff’s knowledge in Feb. 1839, when he requested Buck to act as his agent in adjusting the loss with the insurers, and Buck corresponded with the defendants on the subject, slating that the plaintiff had requested him so to act. Buck died Oct. 16, 1839, before any adjustment of the loss had been made with the company, and it appeared, that his estate was insolvent. On October 22, 1839, the plaintiff, being indebted to the Frontier Bank at Eastport, assigned the proceeds of the insurance to the bank, and drew on the insurers in favor of the administrator of Buck, which order was forwarded by him to the defendants for collection, and they were directed to place the amount received in the Merchants’ Bank to the credit of the Frontier Bank. The defendants acknowledged the receipt of this order, Oct. 29, 1839. The loss was adjusted, and in December, 1839, the insurers paid to the defendants on that account, $3997,89, and they then sent an account to the administrator of Buck, wherein they credited the sum of $2840,04 to Buck’s estate, being the balance of their general account against him, and accounting for the balance as, “ cash deposited in Merchants’ Bank, N. Y. to credit of Frontier Bank, Eastport, per order of J-. C. Noyes,” the administrator of Buck. On receiving the account, the administrator, notified the defendants, that he objected to this course. At the time of Buck’s death, the plaintiff was indebted to him on general account in the sum of $3658,84, and the Frontier Bank held the plaintiff’s note, indorsed by Buck & Tinkham for $4000, and the note of Buck, indorsed by the plaintiff, for $3550,00. On January 7, 1840, the plaintiff settled his account with the administrator of Buck, and gave his negotiable note for the balance. This action was commenced January 23, 1840, to recover the $2840,04, which the defendants had retained, and passed to the credit of Buck’s estate, and is prosecuted for the benefit of the Frontier Bank. Prior to the loss, the plaintiff had no direct communication with the defendants. The premiums were charged by the defendants to Buck & Tinkham and to Buck in general account, and the return premiums and . receipts for losses credited in the same way. On July 15, 1839, while negotiations were pending for the adjustment of the loss with the insurers, Buck stated to the defendants, that the money to be received for this loss was to go to them, and they on that account extended a further credit to Buck, he having shortly before sustained a heavy loss by fire in East-port. In October, 1839, the' plaintiff saw a paper wherein it was stated that the defendants intended to balance their account against Buck out of this money, and it did not appear that he notified them of any objection thereto. The amount charged and credited by the defendants to Buck, for premiums' paid and sums received for return premiums, were by him, up to the time of his death, charged and credited to the plaintiff in general account, to which he made no objection.</p> <p>The letters, accounts, depositions and admissions, from which the facts are obtained, are quite voluminous, but it is believed, that the state of the accounts at particdlar times will be sufficiently understood from the opinion of the Court.</p> <p>and among other positions, contended for the following.</p> <p>The defendants have no lien upon this fund.</p> <p>They acted at the request of Buck for the use of the plaintiff, and carried their charges into general account with Buck, and with his assent. They chose to trust to the personal credit of Buck, and cannot now retract.</p> <p>If however, they had a lien, it could only be to the extent of the advances made on account of the insurance of this brig, which have all been paid. Story on Agency, $ 390, 397. Where there is no particular appropriation made at the time, and balances of general account are carried forward from time to time, the law appropriates payments to the satisfaction of items first due. 8 Taunt. 149; 1 Mete. 166; 9 Wheat. 720; 4 Mason, 333 ; 3 Sumn. 99.</p> <p>The defendants had no lien on this fund for their balance of general account against Buck, nor had Buck any such against the plaintiff. Story’s Ag. *§> 366, 377, 389: Livermore’s Ag. 242.</p> <p>The sub-agent can avail himself of the lien only when the agent could do so, when, as in this case, the sub-agents knew that Buck was but an agent of the plaintiff; 7 B. & Cr. 517; Story’s Ag. 377; 2 Campb. 218; 2 Johns. C. R. 327 ; 1 East, 335; 1 Bingh. 20. Long before this money was received, Buck’s debt against the plaintiff had been assigned to the Frontier Bank, to secure a debt where Buck was liable, and the plaintiff had given his negotiable note to his administrator for the balance.</p> <p>The direction of Buck to the defendants to place the amount to be received for the loss to his credit, could give them no rights. He had no power to pledge the plaintiff’s property to pay his debts. Story’s Ag. 219, 372; Paley’s Ag. 214, 340; Liv. Ag. 129, 149. Besides, Buck died before the money was received, and if any power was given previously, it was revoked by his death.</p> <p>It does not appear that the plaintiff noticed the intention of the defendants to apply this money, when received, to pay any debt from Buck to them. He certainly did not assent to it. But if he had, it would have given the defendants no rights, as they knew he had before that time assigned the fund to the Frontier Bank.</p> <p>There is sufficient privity of contract to enable the plaintiff to maintain this action. The defendants knew that the insurance was made for his benefit, and that he was the owner of the vessel, and Buck merely his agent. The plaintiff could have maintained an action against the insurers on this policy. Story’s Ag. 405; 1 Mete. 166; Liv. 200. And he may follow the money wherever it is. 8 Taunt. 159; 17 Mass. R. 560; 17 Pick. 159.</p> <p>making the following, among other objections to a recovery by the plaintiff.</p> <p>The action cannot be maintained, because there was no privity between the parties to this suit.</p> <p>The plaintiff being a foreigner, the defendants were personally liable to the insurers. Buck & Tinkham, and Buck, were liable as principals to the defendants, and they alone were liable to the plaintiff. The plaintiff assented to the exclusive dealings between the defendants and Buck throughout, and this appears by the mode of keeping the accounts between all the parties. Had he not been already paid, the plaintiff’s remedy was on Buck alone, and he can maintain no suit against the defendants. Story’s Ag. 88, 255, 208, 426 and note, 290; Paterson v. Gandasequi, 15 East, 62; HeGaillon v. L’Aigle, 1 B. & P. 368; Thompson v. Davenport, 9 B. & Cr. 338; Stephen v. Badcock, 3 B. & Adol. 354 ; Pinto v. Santos, 5 Taunt. 447.</p> <p>If the plaintiff was in a position to maintain a suit against these defendants, he has no ground of action. The defendants, as sub-agents, had a lien upon this policy, and upon the money to be received upon it, for their complete indemnity. They had so by the usage and practice between all the parties, 'shown by their accounts and dealings. 4 Burr. 2214; Story’s Ag. <§> 386; 2 Kent, 4th Ed. 613. They had by the act of Buck, the authorized agent of the plaintiff, in directing the money to be received for the loss to be passed to Buck’s credit, and obtaining a further credit from the defendants on that account. This money was appropriated by Buck to pay his debt to the defendants. It was equivalent to a payment by them to Buck, which would have discharged all claim of the plaintiff. Story’s Ag. 399; 4 Campb. 349; 17 Pick. 159.</p> <p>The direction of Buck to the defendants to credit the amount received to him, and his statement to them that the same should go in payment of the debt then due, amounted at least to an assignment to them of Buck’s rights against the plaintiff. Buck had the right to appropriate this money to pay the balance of his account against the plaintiff. Buck was his general agent, and as such had a right to retain it.</p> <p>Buck had also an interest in the policy, and a lien upon it, and had a right to have the money come into his hands, and on this ground also could appropriate it to the payment of his debt to the defendants.</p> <p>No acts of the administrator of Buck could change the state of affairs existing at, the time of his death. It was not in his power to take this fund from the defendants, and transfer it to the bank.</p>

Debt on a poor debtor’s bond. The material facts appear in the opinion of the Court. The case states, that it did not appear on the trial, that Mosely had surrendered himself, or had offered to do so, after Jan. 12, 1839. contended that where the general issue is pleaded, and a brief statement of the special matter relied on in defence is filed, the defendant cannot give in evidence any special matter, which is not distinctly stated in the brief statement.

. Exceptions from the Eastern District Court, Chandler J, presiding. This was an action of assumpsit upon a guaranty by the defendant of an order by one Nelson on Brooks & Waldron, by them accepted payable in boards, in favor of one N. H. Mooney, for $41,55.

Exceptions from the Eastern District Court, Chandler. J. presiding. Debt for the penalty prescribed for taking herring in the county of Washington, contrary to the provisions of the statute on that subject.

<p>Exceptions from the Eastern District Court, Chandler J. presiding.</p> <p>The indictment against Grant was for larceny, wherein he was charged with having stolen a trank and money, “ the property of one Eusebius Emerson of Addison in the county of Washington.” To prove the allegations in the indictment, a witness was called, who testified, that his name was Eusebius Emerson ; that he resided in Addison ; that he was the son of Eusebius Emerson, who also was residing in the same town ; that he, the witness, used formerly to sign his name without the addition of junior, but that for some years, since he had resided in the same town with his father, and been in business for himself, he had written his name, “ Eusebius Emerson, Jr.,” in order to distinguish his name from his father’s. The witness stated that the trunk and money was his property; that part of the money was received in the ordinary course of his business, and that the residue was received as the earnings of a vessel belonging to himself and his wife’s mother in equal shares, and that he was the vessel’s agent, and had given her credit on his books for her part of the earnings.</p> <p>The counsel for Grant then contended, that the allegation as to ownership of the property, was not sustained by the proof, inasmuch as a part of the property was shown to have been the property of Eusebius Emerson, Jr. and the residue to have belonged to him and his wife’s mother. The presiding Judge overruled the objection, and instructed the jury, that junior was no part of a name, and that if the witness was believed, he had such property or interest in the articles stolen, or such possession thereof, as sustained the allegation of ownership.</p> <p>To prove the taking of the property by Grant, the attorney for the State called one Jacobs, who testified to certain confessions of the accused. The witness stated, that he, knowing that ■ J. D. Grant and an older brother,. Calvin Grant, were charged with having stolen the property, and, as Calvin had a wife and family, feeling desirous to get Calvin clear, before the confessions were made, he had an interview with James and Calvin for that purpose ; that Calvin appeared cast down and was crying; that he told James, that he thought he, James, was more guilty than his brother; that it was a pity for both of them to go to jail; that his brother had a wife, and that James had better confess and save Calvin; but that he held out no inducements, that James would fare any better for it; and that thereupon the confessions were made.</p> <p>The counsel for the accused objected to the admission of this testimony of confessions thus made, as they were not free and voluntary, but were made under an appeal in behalf of his brother, and under the influence of the advice of the witness for the purpose of saving his brother. The Judge overruled the objection, and admitted the testimony.</p> <p>The verdict was guilty, and the accused filed exceptions.</p> <p>argued in support of the positions taken at the trial.</p> <p>On the first point, that there was a fatal variance between the allegations in the indictment and the proof, both as to the name of the owner of part of the property, and as to ownership of the residue, they cited, 3 Stark. Ev. 1576, 1578 ; 1 Peters, 139; 1 Salk. 7; Boyden v. Hastings, 17 Pick. 200.</p> <p>And to the point, that the confessions should have been ex-eluded, Comm. v. Knapp, 9 Pick. 496 and 10 Pick. 490; 2 Stark. Ev. 49 ; 2 Leach, 636 ; Grecnl. Ev. 248, 254.</p> <p>said that junior was no part of the name of the owner of the goods, and was inserted merely to describe the person. The identity of person may be shown by evidence, as it wras here. This word was no part of the description of the offence. Roscoe’s Crim. Ev. 597.</p> <p>As to the property, the money was received as Emerson’s, and he was liable over to the other part owner for the amount. And that is sufficient. Roscoe’s Crim. Ev. 583.</p> <p>To exclude the confessions, there must have been a promise of favor, or a threat of injury, to the person making the confessions. Here w'as neither the one nor the other. Ros. Cr. Ev. 38, 39.</p>

<p>The parties, in this case, agreed to submit it to the decision of the Court upon a statement of facts, and papers referred to as part thereof; “ the Court to consider such of the facts as are relevant, and to draw such inferences therefrom as a jury might.”</p> <p>The following was found in the statement. “ The action is assumpsit upon the annexed guaranty, not dated, but made in October or'November, 1834.”</p> <p>The facts upon which the decision was made are found in the opinion of the Court.</p> <p>and cited Seaver v. Bradley, 6 Greenl. 60 ;• True v. Harding, 3 Fairf. 195 ; Norton v. Eastman, 4 Greenl. 525 ; Bent v. Hartshorn, 1 Mete. 24.</p> <p>and cited Babcock v. Bryant, 12 Pick. 133 ; Norton v. Eastman, 4 Greenl. 521; 2 Stark. Ev. 649 ; Tucker v. French, 7 Greenl. 115 ; Cremer v. Iligginson, 1 Mason, 323. '</p>

The question in this case was, whether the trustee was to be charged on his disclosure. Bishop had brought a writ of entry against Holt, the present defendant, and had recovered judgment, but the jury had awarded a sum of money to the defendant as betterments.

This case came before the Court on a statement of facts signed by the counsel for the parties. Assumpsit on a note dated Nov. 13, 1837, for two thousand dollars, signed by Lincoln, Foster & Co. payable to Willis Patten & Co. “ at either bank in Bangor,” six months after date, and indorsed Willis Patten & Co. Over the indorsement was written “ holden without notice or demand,” and no demand was proved, the plaintiff relying on the waiver.

<p>Bill in equity. The facts in the case appear in the opinion of the Court, as do also the material parts of the bill and answers.</p> <p>said that the claim of the plaintiff was originally limited to the possessory title, extending over the whole lot. The defendant has since that time united the legal and possessory title. If the sale of one half be bona fide, the sale of the other half is clearly fraudulent, and compensation should be made from that as far as it will go.</p> <p>The statute of limitations cannot bar our claim, for we could not assert our right against the defendant until he purchased in the legal title, which was within six years. The statute of limitations is not pleaded, nor relied upon in the answer, and therefore cannot be urged in the argument. And the statute is no bar, because the defendants were guilty of a fraud which prevented the plaintiff from prosecuting his claim at an earlier period. It is no bar, because the defendant says that “ he has never refused to deliver up said possession and betterments before the filing of this bill.” And the possession of the land is demanded, and not the payment of money, unless in consequence of the defendant’s own recent acts. It is no personal contract between the parties, to be barred by the limitation of personal actions.</p> <p>contended that the claim of the plaintiff was not entitled to much consideration from the circumstance, that it is based upon a transaction óf more than twenty years standing. Equity always discountenances neglect. 1 Story’s Eq. 73; I Mad. Ch. 99; 2 Mád. Ch. 309.</p> <p>The defendants set up in their defence the statute of limitations. It is said? that they are precluded from relying upon it, because it is not specially pleaded. It is embraced in their several answers, and that is sufficient. Rule of Court, 14, in 9 Greenl. 102.</p> <p>The purchase in of the legal title of Gardinei, could not affect the rights of the plaintiff. That title might as well be hold-en by Butler as by Gardiner. This purchase then could not be considered as a fraud upon the plaintiff.</p> <p>The plaintiff has a plain and adequate remedy at law, unless he has lost it by his own neglect. lie might have taken possession, or have maintained an action against Butler, if he resisted, or have brought his action to recover the betterments under the statute, after Butler had taken possession, or he might have maintained an action upon the written agreement; and have recovered damages.</p> <p>The bill cannot be maintained, because the plaintiff had never demanded possession, prior to the filing of the bill.</p> <p>The part of the premises conveyed to John Butler, Jr. was free from all pretence of fraud, and without notice of any claim of the plaintiff and he is entitled to hold it.</p> <p>It can be of no importance to the plaintiff, whether the legal title is held by Gardiner or by Jairus Butler. He has never hindered or obstructed the plaintiff in the enjoyment of any of his rights. How can the bill then be maintained against him ? What greater reason is there for it, than to have brought the bill against Gardiner, had he continued the owner ?</p>

This case came before the Court on motion for a new trial for the alleged misconduct of one of the jurors who returned the verdict, filed by the defendant against whom the verdict was. The specifications of misconduct are found in substance at the commencement of the opinion of the Court. The action was replevin for a quantity of clapboards, attached by the defendant, as an officer, as the property of one Morse.

Assumpsit by the plaintiff as indoisee against the defendant as maker of two promissory notes, each dated June 1.5, 1833, payable in two years, the one to William Emerson, or order, and by him indorsed, and the other to W. & J. Coburn, or order, and by them indorsed, and both were also indorsed by W. T. & H. Pierce & Co. On the back of the first were written, but not signed by any one, these words, “ The contents of this note to be appropriated to the payment of R. M. N.…

This was a bill in equity, instituted in July, 1841, wherein the plaintiff alleges that on Feb. 28, 1822, he gave his note to the defendant, Wilson, and his then partner, Z. Porter, since deceased, for @120, payable in six months with interest, and on the day next following he left with them, they being attorneys at law, a large amount of notes and accounts in his favor against different persons to pay this note, and that they agreed to collect the demands, pay the note from…

<p>This was an action of the case, the declaration containing three counts, one for a conspiracy to injure the plaintiff,'one for a malicious prosecution, and the third a special count setting forth all the facts, and claiming damage for the injury.</p> <p>The general issue was pleaded and joined, at the trial at December Term of this Court, 1841. The plaintiff introduced copies of a prosecution instituted on the complaint of said. Caswell against the. plaintiff, made to Stephen Barrows, Esq. dated the 16th of February,- 1839, for cutting twenty-five cords of wood on the 7th of the same month on certain land - described therein,- not having the consent of the owner thereof, and a judgment of the said justice against said Payson, finding him.guilty of the offence charged against him; an appeal to the then Court of Common Pleas ; and the judgment of said Court, showing a verdict of acquittal, and judgment thereon. The ruling of the Judge was based upon the facts' in the case which follow.</p> <p>The plaintiff then introduced the following witnesses who testified as follows, to wit.</p> <p>James Keene, Jr. That he was at the office of Edwin Smith, Esq. in Warren, in February, 1839, as he believed ; the defendants, Isaac Caswell and Ephraim Bowley, were there, a conversation took place about a warrant against the plaintiff; but lie did not know whether a warrant was obtained. Bowley said to Caswell, “ we will have the warrant.”</p> <p>James Tolman testified, that he was present with the defendants after the plaintiff was discharged in the Court of Common Pleas, last season, in a store, Caswell said they did it to draw out Payson’s strength. Bowley said, “ we did not expect to do any thing, we have made out all we expected;”' that the witness did not bear it in mind.</p> <p>Samuel Hewett; that in conversation with Caswell, in going to.Thomaslon in .Fob. 1840, Caswell said, he did not calculate to beat Payson, but he drew out his strength to use in his civil suit against Payson. The witness had asked him how he made it with Payson.</p> <p>Lewis Hall; that, he heard the defendants conversing together after the trial in the Common Pleas, in a store, about the case. Caswell said, “ we did not expect to beat Payson, but to draw out his strength;” that Caswell or Bowley said, “ we know now just what we have to prove.” Bowley and Caswell were both present before the justice who tried the case against Payson, and testified.</p> <p>William Bowley ; that in the winter of 1840, Caswell said he cared nothing for Payson, if Hewett, (referring'as the witness supposed to Ephraim G. Hewett) would not take up for him ; said he had found out all Payson would do.</p> <p>Rufus Keene; that he had conversation with Caswell in April, 1839, witness said, “'you have had a suit with Payson and lost it,” he said, “ that is of no consequence, I did not expect to make out much in that, I only did it to draw out their strength, I know how to take them, I know how to use them up, I am going to bring another suit.” Ephraim Bowley was present, and entered into conversation with us. -</p> <p>Ephraim G. Hewett; that he was present at the trial in which Caswell complained of Payson, before the • justice, and had conversation with Ephraim Bowley about that case before the trial. This was the November or December before; that Ephraim Bowley called at witness’ brother’s store and said to witness, “ I understand you have bought, or talk of buying a piece of land of Sion Payson,” and he wished to know how it was; that he told him that the plaintiff wished to sell some; Bowley said, as near as he could learn there was no rightful owner to it, said he inquired of Thayer and others, and their opinion was that the one who should chop on it would hold it, said he was not afraid of any one’s interfering, excepting Bayley Moore or Sion Payson ; was not much afraid of Moore, for he had deeded it or would deed it to Isaac Caswell; that Caswell had used Moore up once, and he would not wish to trouble him; that he was not afraid of Payson unless he got some one to buy the land for him; he was poor and no great sprawl; he said if witness would not buy the land or assist Payson in any way, he would give twenty dollars, or more if that was not enough. Witness told him he had no interest in it, and did not know that he should have, and would not take it.</p> <p>On crossr-examination; that Bowley told him at the same conversation, that he had a deed, or should have one of the land, and witness told Bowley that Payson owed him eighty dollars; that he is not on good terms with Caswell. Payson and witness had before talked about the purchase of the land.</p> <p>William Bowley called again, — that he had conversation with Caswell about the criminal prosecution and said something about the trial; said Payson was bound over, but he told the justice to fine him as light as he possibly could; he said considerable of the trial, and he got a fine of two dollars on him. After the justice trial, and before the following March, Caswell said he had taken a part of the wood cut by Payson, and he intended to have the whole of it. The morning after Payson was discharged in Court, in Bickford’s cellar, Payson said to Caswell, “I shall prosecute you,” Caswell said, “you dare not, I did not expect to beat you, but now I know how to take you.” Ephraim Bowley was then present. Payson told Caswell he should sue for the wood, he had hauled away.</p> <p>Stephen Barrows; that he was the magistrate who tried the case, ¡State v. Payson, on Caswell’s complaint; Caswell brought to him the complaint and warrant; Caswell was a witness at the trial, and George Bowley and Ezekiel Bowley, but could not tell what was the testimony of Isaac Caswell; that Isaac Caswell did not state that he knew Payson had a claim to the land ; said he himself had a deed of the land ; Ezekiel Bowley was called to testify to the execution of a deed; the plaintiff requested to have the trial put off from the 16th Feb. to 8th of March, and it was done ; it was proved that plaintiff cut the wood; witness did not recollect that Payson introduced evidence ; Bayley Moore was then examined and his testimony was favorable to Payson. Afterwards witness thought Ephraim Payson was called by Sion Payson. The witness being afterwards called, testified, that Ephraim Bowley was at the trial and testified, and on being inquired of in relation to the plaintiff’s claim, said he had no knowledge till recently, that plaintiff had any claim (a deed was presented to witness by the defendant’s counsel and he said it was offered at the trial before him;) that plaintiff admitted that he cut the wood described in the complaint, and admitted that the deed shown to the witness from E. Bowley to Isaac Caswell covers the same land embraced in the complaint.</p> <p>William Bowley, called again ; that in 1827 or 1828, Ephraim Bowley came to him and asked him if it would not be a good plan to fence the land which is now in dispute; said Sion Payson was going to hold it; said he had sold that piece of land to Caswell; that he had sold him a piece of his original lot and a piece of the 60 acre lot; that he thought Ephraim Bowley said the plaintiff was going to hold the disputed land under Bayley Moore, but was not positive ; same fall, at another time, witness said to Ephraim Bowley, “ you had better give me the land, rather than to go to law about it.” He said, “ you have as good a right as Payson or I,” Bowley made a fence all round the land ; that he has known the gore between No. 1 and the Camden line about thirty years ; lives from it about half a mile, or a little more, to go straight; has lived there about twenty years; set sable traps and crossed hedge fences more than thirty years ago; does not know who built the fences; Bayley Moore was in possession of lot No. 1; that the witness is nearly fifty years old; that he never worked on the gore ; that he worked on the Camden gore; that he knew the line because it was on the way to Grassy Pond.</p> <p>Ephraim Payson ; that he knew the land described in the complaint about twenty-five or twenty-six years ago ; Bayley Moore was in possession of lot No. 1 at that time, and Moore told him he was in possession of the gore, at the time he was between the gore and lot No. 1; that in 1817, he bargained with Moore for 60 acres off No. 1, and it came to the gore and no further, and they run the line on a fence which was upon the line of the gore, that he had often seen the fence, and it was called a possession fence. At that time Moore occupied the other part of No. 1, exclusive of the sixty acres, till 1827 or 8 ; but never possessed the part of the gore that he gave a deed of to Ephraim Bowley; that he told him at the time the deed was given that he had no title to the gore, but Bowley said, it would prevent witness from going on to it, and said he would pay for the deed ; that soon after the date of the deed to Ephraim Bowley, there was a dispute between Bayley Moore and the witness, Moore claiming pay for the gore; it was referred to Brickett, Littlehale and Lindsey ; Ephraim Bowley testified at that reference, that the witness told him at the time he gave the deed, he had no title to the gore.</p> <p>On cross-examination; that he found fence between the gore and the 60 acres and went no farther; that Moore gave him a bond of the 60 acres; that he occupied it several years ; that he gave notes to Moore for the 60 acres for $480; that when he bargained for the 60 acres, Moore urged him to take, the gore for $20, saying he presumed no one would call for it; said he would give a quit claim deed of the gore for $20; this the same day the 60 acres were run out; that he told Moore he would give the $20, to be paid after he had paid for the 60 acres; but when the bond was given, nothing was said about the gore and the deed of that was never given ; that the only matter before Brickett, Littlehale and Lindsey as referees, was the $20, which Moore demanded for the gore; that he had no recollection of having seen the fence between the gore and the 60 acres, after the latter was run out, and he had nothing to do with the gore; that it was in his opinion ten years after the bond was given, before he talked with E. Bowley about the gore lot; that he contracted with him to sell a year before the deed was executed; that E. Bowley said if witness would not think hard of him to go and cut, he would give witness a deed of one and a half acres of land, which would fetch the 60 acres to the road; that witness told him he would not think hard; that he received a deed of the one and a half acres and built a house thereon, and gave nothing excepting a deed of the gore; that he did not pay Moore for the 60 acres and never had a deed; he paid all but $56 of the 480, and Moore conveyed the 60 acres to D. F. Harding without witness’ consent; that he never cut or disposed of any thing on the gore, other than by the deed to E. Bowley; that he supposed Moore to be dead; that he never paid him for the gore; that Moore said when they run out the 60 acres, that he had fenced the gore, but witness did not know it to be so; that he sold said one and half acres to E. Bowley; that plaintiff was living on the south west part of the gore at the time he gave the deed to E. Bowley, but not the part in dispute ; that Moore never lived in Hope; went to Searsmont more than twenty years ago; that the deed from him to E. Bowley embraced the disputed part and no more.</p> <p>Joseph H. Beckett; that he was a referee between Bayley Moore and Ephraim Payson twenty years ago; Payson said he told E. Bowley he had no title to the land conveyed by him, and that he did not remember that Bowley, who was present, made any objection.</p> <p>W. Boys; that he knew the gore in 1817, and bought a part of it then; that his purchase was wholly soutli west of what is opposite lot No. 1; was often before on that which is opposite lot No. 1; before 1817 Bayley Moore cleared a piece on No. 1, and there was a fence round the part, so cleared. In a year or two there was a fence round a part of this gore, small trees lopped down and the butts resting on the stumps, but witness does not know who built it. Moore boarded at his father’s and worked on the gore; it was two hundred rods from clearing on No. 1, to the gore and it was one and a half miles from gore- to witness’ father’s house, and that witness worked on No. 1, for Moore.</p> <p>On cross-examination; that he did not recollect either of the corners between the 60 acres and the gore; that he does not know that he passed over brush fence. E. Bowley owned land near grassy pond and owned and occupied the lower end of gore.</p> <p>Jeremiah Lassell; that he had known the gore over fifteen years; that the plaintiff lived on a piece of it not in dispute ; there Was a hedge fence ; saw B. Moore in the disputed piece in 1817 or 18, Moore said he had sold it to Sion Payson, and had put him in possession; plaintiff and the witness repaired an old fence on the Camden line in 1825; bought timber of the plaintiff, at one lime after fence was repaired, two or three years.</p> <p>On cross- examination; .did not cross over brush fence on Camden line; knows Folger’s corner. The place where saw plaintiff and Moore together was southerly of the part in dispute ; John Payson and Sion were then dividing the line.</p> <p>John Floger; that he knew No.. 1, and the gore ; tha't he purchased of the plaintiff a part of No. 1, and part of the gore. In 1836, saw plaintiff on the part of the gore now in dispute ; spoke of the lot as his own ; this was before witness had a deed ; while we were there, he offered to sell it to me.</p> <p>On cross-examination, Payson said he was willing to sell his farm ; that the witness knew nothing of the lines; that he worked near the upper camp-; that they were sawing stave stuff; one tree was blown down near the line and one they cut; that he gave for farm @1000; plaintiff asked @1200 ; plaintiff said he would sell as much as there vras no dispute about, and he bounded it out in the deed ; that the plaintiff offered to sell lumber, but witness could not tell which side of the line it was; that the deed from E. Payson to E. Bowley includes the land in dispute.</p> <p>William Wilson ; that E. 'Bowley told him he had a case here and wanted him to come as a witness; that he told him, that he should have to testify about the trees, he said the witnéss might keep that back, but witness said he forgot all about that statement; that he worked for E. Bowley 16 or 17 years ago; knew the lot, called the gore lot, thinks he has cut timber on it; was a boy 15 or 16 years old; cut at different times 5 or 6 years ; that he only knows they called it the gore lot; knew E. Payson’s 60 acres; knew the town line of Camden ; that he, E. Bowley and others went through and spotted the Sine, as they said, on the gore; that Bowley owned one side and Leach the other, and on Bowley’s side they lumbered; that plaintiff camo and sold spruce logs to Bowley ; that they were there on the gore; plaintiff asked Bowley what he would give a thousand for such trees as would make plank; plaintiff hauled the logs and witness the plank ; plaintiff pointed out the highland; the spotted line was crosswise of the gore.</p> <p>Joseph Barns; that he was on the land in the winter of 1840 ; knew it in 1827 and 8 ; plaintiff then lived on the west end of the gore ; that witness lived at Geo. Bowley’s and was in his employ and helped cut two trees; Jones was there; the trees were cut on land in dispute ; E. Bowley said they were cut on Sion Payson’s and they must pay for them ; said they had to buy them of Sion Payson.</p> <p>On cross-examination; that this conversation was in Geo. Bowley’s store, and he was there ; that witness never knew any of the lines ; that the timber was cut between the two camps. Neither George nor Ephraim Bowley were on the land and he did not inform Ephraim where they were cut and he did not know that Epnraim had knowledge where they grew; that witness said, “ you get this timber easy,” and they said, they must pay Sion Payson for it; that the trees were hauled to Geo. Bowley’s barn, short of half a mile to where tho trees were cut.</p> <p>Stephen Hatch ; that he knew the east line of the disputed. land, and was there in 1833 ; that in 1832, he made an agreement with E. Bowley for standing wood on the south and east of the disputed land; had chopped considerable and no lines had been shown ; that he told E. Bowley, that plaintiff was watching to see that he did not get over the line; that he called on Bowley to show the lines; that Bowley run on a line and the witness spotted new trees, there was a large pine and a large spruce tree which witness wanted; that he told Bowley he was sorry they were not on the lot he was cutting on ; Bowley said, “ Oh you must not take them, for they are on Sion Payson’s,” that he said to Bowley, that as the oak was reserved, he ought to have the pine and spruce, and he answered, “ you can find no fault for they are on Sion Payson’s that plaintiff came there the same winter and witness told him the line shown by Bowley, and the plaintiff' said it was right; that the pine and spruce were on him, and he offered to sell them to the witness. In 1834, the witness having cut only a part of the wood, purchased of E. Bowley, he sold it back.</p> <p>On cross-examination; that the lot of wood was on the pond, but witness did not know how far it extended.</p> <p>John Folger, called again ; that Isaac Caswell was sworn on the trial of his complaint, as was E. Bowley; Bowley testified that he did not know that plaintiff had any title, or said it just after; that Caswell said he did not know a syllable of any claim that plaintiff pretended to have, till about the time he was going to cut; thinks the land described in the deed from Payson to Bowley is the same described in the complaint; that on the trial of the criminal case in the Court of Common Pleas, Sion Payson had eight witnesses; several witnesses came to Belfast on Thursday, started from home on Wednesday, and went home the following Saturday. The jury were out on the case fifteen minutes or a little longer.</p> <p>The plaintiff offered to prove by parol, that at the trial of the criminal prosecution in the Court of Common Pleas, State v. Payson, the cause w'as submitted to the jury on the single question of title to the land in Caswell, but the Court ruled the evidence to be immaterial, and it was not adduced. The foregoing evidence being adduced by the plaintiff, and he having rested his cause thereon, the defendant’s counsel moved a nonsuit, whereupon the plaintiff’s counsel contended, “ that he was entitled to recover, because he had established the facts, that the judgment rendered against him at the justice court, had been procured principally, or in part at least by the false and malicious testimony of the defendants, especially in said Bowley’s denying that he ever knew that said Payson had or pretended to have any title or interest to the premises described in the complaint, until about the time the plaintiff moved away from Hope, and in said Caswell’s swearing that he never heard or knew that said Payson had or pretended to have any claim whatever to the premises described in the complaint, till a few days before the cutting by the plaintiff, and by their suppression under oath of other material facts, and hence that the record of said judgment, so rendered, was not evidence for the defendants of probable cause. That from all the evidence, it appeared that Bayley Moore took possession of lot No. 1, and of the entire gore opposite to said lot, some thirty years ago; that he subsequently sold his possessory title to said Sion Payson and put him into the open possession of the same, and that the plaintiff had ever since kept up that possession to the entire gore, in such a manner as to be good in law against Ephraim Bowley, and all claiming under him, or at least, that Caswell had not such title, as would enable them (Bowley and Caswell) to maintain that criminal prosecution in behalf of the State against said Payson; and that the defendants, well knowing the same, instituted that prosecution for the purpose of learning what evidence, it would be necessary for them to procure to defeat Payson’s and establish their own claim to the land in a civil suit, without any expectation or belief that they should be able to procure his conviction; that they bore false testimony at the trial in the Court of Common Pleas, in suppressing material facts and in misstating and denying others, and that all the evidence taken together showed an entire absence of probable cause.”</p> <p>“ That the cutting of the twenty-five cords of wood, stated in the complaint, being admitted at the trial of the prosecution against Payson, the verdict was evidence, that Caswell had not such title in himself, as would be the foundation of such prosecution against Sion Payson ; and that if the jury should be satisfied of a conspiracy of these defendants to get him prosecuted as a criminal in order to harass him and to ascertain and procure evidence for a civil suit, then the defendants would be liable on those counts in the writ, charging them with a conspiracy, whether Payson had in fact acquired by possession a good title or not.”</p> <p>But Tenney J., then presiding, ruled, that upon the foregoing facts, it did not appear there was a want of probable cause for the prosecution in the complaint and warrant of the State v. Payson, and intimated doubts, whether there was sufficient evidence to induce the jury to return a verdict for the plaintiff, on the ground of a conspiracy in the defendants to injure the plaintiff. Whereupon it was agreed by the parties, that the defendants might put into the case the deeds adverted to by the witnesses, and that a nonsuit should be entered subject to the opinion of the whole Court. The defendants then produced in evidence a deed from Ephraim Payson to Ephraim Bowley, dated April 22, 1828.; also a deed from Ephraim Bowley to Isaac Caswell, dated Dec. 24, 1835, both which had been recorded. A nonsuit was entered according to the agreement, which is to stand, if in the opinion of the Court, on the foregoing evidence, the plaintiff is not entitled to recover. But if the evidence is sufficient to authorize a jury to return a verdict for the plaintiff, the nonsuit is to be taken off and the action is to proceed to trial.</p> <p>and among other grounds, contended:—</p> <p>That by an abuse of legal criminal process the defendants had injured the plaintiff in his person, by the vexation caused by it; in his reputation, by his arrest and trial as a criminal; and in his property, by the amount of expenses necessary for his do-fence. For this he has a remedy in some appropriate form. Const, of Maine, Dec. of Rights, <§>19.</p> <p>To support the count for malicious prosecution, two things are necessary ; that the criminal prosecution was without probable cause, and that it was with malice. Here the evidence was examined, and it was insisted both were made out. In examining this question, and in support of various propositions considered to be pertinent, the following cases were cited. The facts should have been submitted to the jury, with appropriate instructions. The facts must be found before the Court can decide as to probable cause as matter of law. Stone v. Crocker, 24 Pick. 81; Jackson v. Rogers, 1 Johns. Cases, 81; Tillinghast’s Adams on Ejectment, 44 and notes. The defendants had no such title as would enable them to maintain the criminal prosecution, and this was known to them. 14 Wend. 192; 12 Pick. 324; 4 Kent, (4 Ed.) 445 to 449 and notes; Hilliard’s Abr. 27; 6 Mass. li. 418; 5 Pick. 348. The defendants acquired no title by the deeds, because their grantor had none, and so informed them, and because none could have passed by reason of a disseizin by the plaintiff. St. 1821, c. 62, <§>6; St. 1825, c. 307, <§> 2; 2 Grecnl. 275; 4 Kent, (4 Ed.) 446; 6 Pick. 172; 6 Mass. R. 229; 14 Mass. R. 200; 15 Mass. R. 495; 10 Peters, 414; 11 Peters, 41; 4 Segt. & R. 465; Adams’ Ejectment, 430.</p> <p>The conviction of the justice was not conclusive evidence of probable cause, and indeed no evidence of it. The case of Whitney v. Peckham, 15 Mass. R. 243, has been examined and overruled, and cannot now be considered as law. 4 Wend. 598; 2 Fairf. 475 and 367. With the other proof, the. conviction of the justice furnished evidence of want of probable cause, rather than of its existence.</p> <p>On the face of the proceedings the justice had no jurisdiction of the matter, and his judgment is void. Const, of Maine, Dec. of Rights, <§> 6 ; St. Maine, c. 76; Merriam v. Mitchell, 33 Maine. R. 439; 8 Greenl. 365; 1 Grcenl. 230.</p> <p>The plaintiff should have been permitted to show, that at the trial of the criminal process in the Common Pleas, the case was submitted to the jury on the single question of title to the land in Caswell, to rebut any presumption of probable cause. 19 Eng. Com. Law R. 487; 24 Pick. 81.</p> <p>The evidence was sufficient to support the action on the count for a conspiracy. 2 Mass. R. 337 ; 9 Mass. R. 415; 16 Eng. C. L, R. 19; Lieber’s Pol. Ethics, 346, 367 ; 7 Cowen, 445 ; 2 Day, 249 ; Ham. N. P. 278.</p> <p>The action is sustained on the special count. 1 Binney, 172; 8 Wend. 674; 4 Wend. 259; 17 Mass. R. 186; Greenl. Ev. 122, 123; 3 Mass. R. 196; 1 Tyler, 60; 1 U. S. Com. Law Dig. 546.</p> <p>for the defendants, said that the offence with which the plaintiff was charged before the justice, was not a crime, but a mere trespass to land. It was one mode allowed by statute of preventing a repetition of an injury to the property of the complainant. Without proof of special damage, of which there was none, the action cannot be maintained. And malice must be expressly found. 2 Esp. N. P. 121; 1 Campb. 199.</p> <p>The complainant had a seizin of the land where the cutting was by his recorded deed. The plaintiff had no title whatever, and could acquire none by possession to unfenced woodland, as this was. There was then neither title, nor possession in the plaintiff, and of course, there was no disseizin to prevent the effect of the plaintiff’s deed. The plaintiff admitted the cutting, and offered no evidence of permission from the owner. Not only probable cause was made out for the prosecution, but full evidence to sustain it. Where there was probable cause, the action cannot be maintained even by proof of actual malice. Ulmer v. Leland, 1 Greenl. 135; 2 Stark. Ev. 907 to 919; Yelv. 105.</p> <p>The plaintiff defeated his action by the introduction by him of the record of his conviction before the justice. The testimony of the defendants was wholly immaterial, and besides has not been shown to be untrue. Whitney v. Peckham, 15 Mass. R. 243 ; Witham v. Gowen, 14 Maine R. 362.</p> <p>The nonsuit was properly directed for three reasons, at least; one that the plaintiff had not introduced evidence to maintain his suit; another, that he had introduced conclusive evidence to defeat it; and the third, that it was done with his consent. Either of the two former is sufficient to show, that the nonsuit was rightly ordered on the merits; and the latter, that he cannot now complain, that the case was not submitted to a jury, even if otherwise it should have been.</p>

Debt on a poor debtor’s bond, dated April 13, 1840. Bartlett, the debtor, on June 6, 1840, having previously duly cited the creditor, appeared before “ two justices of the peace, quorum unus,” submitted himself to examination under oath, took the oath prescribed by law, was thereupon discharged by the justices from arrest, and they made the usual and proper certificate to the jailer of the County of Waldo.

The action was debt, brought by Sayward, an inhabitant of Thomaston in the County of Lincoln, as adjutant of the fourth regiment, “ detailed and commissioned according to law, to take the command of and train and discipline the B company of infantry in said regiment, said company being a company of infantry belonging to the town of Camden in the County of Waldo, and then being, and for three months previous thereto, and ever since having been, without any commissioned…

Exceptions from the Eastern District Court, Allen J. presiding. Trespass for taking articles of personal property.

<p>Debt on a judgment. A brief statement of payment of the judgment was filed with the general issue. The parties agreed upon a statement of facts, and upon what a witness testified.</p> <p>A judgment, as declared upon, was rendered in 1830, and an execution was issued thereon. R. B. Allyn, Esq., original attorney of the plaintiffs, testified that immediately after the issuing of the execution, which was dated Nov. 1, 1830, he delivered the same to Isaac Allard, a deputy sheriff and the same who served the writ, for collection; that on July 14, 1831, said Allard paid to him, as attorney of the plaintiffs, the full amount of the execution, and he immediately afterwards paid the same to the execution creditors, the present plaintiffs. This action is brought for the benefit of said Isaac Allard, who has hitherto kept, and still has the execution.</p> <p>If the Court should be of opinion that the action can be maintained upon the principles of law, the cause is to be tried by a jury; otherwise the plaintiff is to become nonsuit.</p> <p>said that it was well settled, that an action of debt might be maintained in the name of the creditor upon a judgment, which has been assigned. The officer may well be the assignee. Here no question is raised in the statement respecting the validity of the assignment. Nor does the question whether the judgment has been satisfied by the defendant, come up here. That is for the jury. The delivery over of the evidence of the debt is a valid assignment. Allen v. Holden, 9 Mass. R. 133; Dunn v. Snell, 15 Mass, R. 481.</p> <p>said that the officer, having an execution in his hands to be collected of the debtor, could not by paying the debt to the creditor, substitute himself in his place, and maintain an action on the judgment in the name of the creditor, who had been fully paid, against the debtor. The authorities are clear against it. If the execution has once been paid to the creditor, no action can be maintained upon the judgment, whether such payment was with the money of the debtor or the officer. Stevens v. Morse, 7 Greenl. 36; 7 Johns. R. 426; 15 Johns. R. 443.</p> <p>But here the creditor never gave his assent to the bringing of the suit, and never made any assignment of the claim. This is an entirely different question from one, where the creditor sold and assigned his judgment, and received the payment as the consideration thereof, and not in satisfaction of his debt.</p>

The plaintiff brought an action of trespass against the defendants, and while it was pending in the District Court, it was referred before a justice of the peace. When the report was offered for acceptance in the District Court, it was objected to by the defendants. Goodenow, District Judge, ordered judgment to be rendered on the award; and the defendants filed exceptions. The grounds of objection appear in the opinion of the Court. and cited Rev. St. c. 138, $ 3, 4; 3 Mass.

This case was submitted on the following statement of facts. The action is on a promissory note, signed by T. Sawyer & Co. dated Dec. 24, 1838, for $202,50, on four months, payable to and indorsed by the defendant.

This was an action of trespass, for taking a piano of the plaintiff’s, against the defendant as sheriff of Cumberland, the act having been done by his deputy, who justified the taking by virtue of a writ against John S. Dunlap, keeper of the Cumberland house, in Portland, alleging that the piano was Dunlap’s property at the time of the attachment.

<p>Where a pair of oxen had been conditionally sold, but were to remain the property of the seller until paid for, and were delivered into the possession of the conditional purchaser, and before payment therefor were attached and taken as his property, all right of such purchaser to the possession was held to have been determined, when the owner informed him, that he should take back the oxen, and pn his presence demanded them of the attaching officer.</p>

This was an action of assumpsit for money had and received, brought against the estate of Roscoe G. Greene deceased. The evidence to support the claim consisted of a writing of which the following is a copy. “ Whereas Richard Davis of Bridgton and Isaac Dyer of Baldwin, have assigned to me a bond of certain lots of land bonded to them by Thomas Hammond, Charles Merrill and John Leighton.

This was a bill in equity instituted by David Morton against Charles E. Barrett, trustee under the last will and testament of Reuben Morton late of Portland, deceased, Samuel Hanson, guardian of his three children who were also children of his late wife, Statira, now deceased, the daughter of said Reuben Moiton, and James Furbish, guardian of the two children of his late deceased .wife, who was the other daughter of said testator.

This was an action of the case for slanderous words, alleged to have been spoken by the defendant, accusing the plaintiff of forgery. The defendant justified by pleading the truth of the words spoken. In two of the pleas the defendant set forth the documents alleged to be forged ; and in the other two pleas the justification was general, describing the forgery of the instruments in general terms. An issue was tendered in the replication to each plea and joined.

<p>Trover for a quantity of pine mill logs.</p> <p>At the trial of the action, after the facts were before the jury, and which are sufficiently stated in the opinion of the Court, a default was entered by consent, which was to be taken off, if the defence was made out.</p> <p>contended that a mortgagee of land, who has not entered into possession for condition broken, cannot maintain trover against a stranger for cutting trees thereon, although perhaps he might against the mortgagor. Hammatt v. Sawyer, 3 Fairf. 424; 17 Mass. R. 289; 15 Johns. R. 205 ; 2 Greenl. 387 ; ib. 173 ; ib. 132; Gore v. Jenness, 19 Maine R. 53 ; Tfilkins v. French, 20 Maine R. 111.</p> <p>But if the mortgagee can maintain a suit, one tenant in common as the plaintiff is, cannot maintain trover without joining the other. 12 Pick. 120; Gould’s PI. 200; 1 Chitty’s PI. 43 ; 13 Johns. R. 286. It is not necessary to plead nonjoinder of plaintiffs in abatement.</p> <p>Nor is the plaintiff in the least relieved from his difficulty by the severance of the trees from the land. One tenant in common cannot maintain trover against the other for a mere detention of the property.. Nor can one, without joining the other, maintain a suit against a stranger for the destruction or sale of the property of both. 7 Wend. 449; 9 Wend. 338; 21 Wend. 72; Stark. Ev. (in 2 Yol.) 840; 21 Pick. 559.</p> <p>The release of Chase, one of the tenants in common, is a complete and perfect bar to the maintainance of the plaintiff’s suit. The cause of action is thereby discharged, and the plaintiff’s remedy is only on his co-tenant. Rising v. Stannard, 17 Mass. R. 282 ; Knox v. Silloway, 10 Maine R. 201; Rawson v. Morse, 4 Pick. 127 ; Maddox v. Goddard, 15 Maine R. 218; 8 Wend. 505; Arnold v. Stevens, 1 Mete. 266; 13 Johns. R. 286; Bac. Abr. Release, G.</p> <p>argued, that the mortgagee, although he had not entered into the actual possession for condition broken, could maintain trover for logs cut by a stranger, and sold to the defendants, who had them in possession when the demand was made. An action will lie in favor of the mortgagee against the mortgagor or his assignee for cutting trees. Stowell v. Pike, 2 Greenl. 387; Smith v. Goodwin, ib. 173 ; Blarney v. Bearce, ib. 132; Newhall v. Wright, 3 Mass. R. 138. If the mortgagee can maintain trover against the mortgagor, much more shall he against a stranger. Nor could the defendants acquire any title under the trespasser. Gore v. Jmness, 1 Appl. 53; Perkins v. Pitt, 11 Mass. R. 130; Starr v. Jackson, ib. 5L9; Higginson v. York, 5 Mass. R. 341; I Johns. R. 471 ; Ripley v. .Dolbier, 6 Shepl. 382. The trespasser can impart to another no rights superior to his own. The mortgagor, as against the mortgagee, has only a right in equity to redeem, but no title. 3 East, 38 ; 3 Greenl. 424.</p> <p>Nor can the defendants contend successfully under the release of Chase, the other mortgagee of an undivided share of the land. That release did not discharge the plaintiff’s right of action. One tenant in common cannot discharge a trespass committed in relation to a chattel, nor a suit in trover by a co-tenant to recover bis share of the value of the chattel. Chase, having wrongfully converted the property, could not convey any rights to the defendants. One tenant in common cannot, like a partner, sell the whole interest of his co-tenant. Nor could he give any greater rights to the defendants, than he had himself. And if a personal chattel, held in common, be sold by one of the tenants as exclusively his own, such sale is a conversion. 9 Cowen, 230; 5 Johns. R. 174 ; 7 'Wend. 449; 4 Wend. 525 ; 15 Johns. R. 179 ; 2 Wend 553 ; Reed v. llovxird, 2 Mete. 36 ; Weld v. Oliver, 21 Pick. 559 ; Puller’s N. P. 34. Or if one tenant in common destroy the thing in common, the other may bring trover. Herrin v. Eaton, 1 Shepl. 193; 1 Taunt. 241; 1 Conn. R. 95; 10 East, 121; 1 L. Raym. 737. One of several tenants in common of a tree, may maintain an action against the others for cutting it down. Chitty on PL 170; Maddox v. Goddard, 3 Shepl. 223 ; Gibbs v. Chase, Í0 Mass. li. 125; 15 Moss. R. 204 ; 20 Pick. 413. On a demand by the plaintiff, and a refusal to deliver and a denial of our rights by the defendants, they became liable. 2 Campb. 335; 2 Stark. ííep. 312; 13 Pick. 297 ; 21 Pick. 559. But, as before said, trover may be maintained by one tenant in common against another, when the latter sells the whole property as' his own. • White v. Osborne, 21 Wend. 72.</p> <p>The rule of the common law is, that no right passes by a release, but the right which the -releasor had at the time of the release, made. Quarles v. Quarles; 4 Mass. R. 680; Co. Lit. 265. The defendants, therefore, could thereby only acquire Chase’s interest, and not the plaintiff’s.</p>

The actions R. A. L. Codman r. Misha Strout, and S. R. Clements, Trustee, and Misha Strout v. Samuel R, Clements came, thus entitled, from' the District Court to this Court by one bill of exceptions, signed b.y Messrs. Codman & Clements, but they were entered as separate actions. The facts appear in the opinion of the Court. and contended that Clements should have been charged as trustee; and that being rightly charged, furnished a good defence for him in Strout’s suit.

Assumpsit against the defendant as indorser of a note of which a copy follows. — “Portland, March 31, 1835. For’ value received I promise to pay Daniel Brown, or order, two thousand eightv-one dollars in two years with interest annually. “ Henry Ulsley.” ■ This pote was indorsed by the defendant and by Mason Greenwood.

Scire facias by the administrator of Elizabeth Titcomb, who was the widow of Moses Titcomb, deceased, on whose estate Joseph Titcomb was administrator, to have execution for one half of the amount of a judgment formerly recovered against Joseph Titcomb, founded on official delinquency in fraudulently concealing a debt due to the estate from the administrator himself and neglecting to account for the same.

<p>Where the return of an officer sets forth, that by virtue of his precept he had made diligent search for the property of the debtor, and could find none, the return would be false, unless he had the execution in his hands before the return day; for he could do nothing by virtue of it, unless it was in force at the time. And therefore where an officer makes such return on an execution, under a date subsequent to the return day, it must be considered, that the execution was in bis hands seasonably, and that his return of his doings had reference to the time when he could lawfully act by virtue of it.</p> <p>In scire facias against the indorser of a writ, the inability of the execution debtor to satisfy the execution, where that fact is relied upon to sustain the process, should be directly averred. If, however, this has not been done, but the plaintiff has averred, that his execution for costs has not been satisfied, and has recited the officer’s return thereon, showing that the want of satisfaction arose fiom want of ability in the debtor to discharge the same, and has alleged, that for want of sufficient property of the debtor to satisfy the execution, the indorser became liable, the declaration will not, for that cause, be bad on general demurrer, under the provisions of Rev. st. c. 115 § 9.</p>

This was a writ of entry in which was demanded of the tenant, the possession of a lot of land with the bhildings thereon, situate in Portland. The writ was dated Sept. 21, 1841. The general issue was pleaded, with a brief statement, that Demerritt was not tenant of the freehold, but tenant for the term of one year under a lease from S. Pease and wife, and that he claimed nothing further.

The action was debt on two judgments recovered by the plaintiff against the defendants in 1834, the costs in both suits amounting to $33,60. Messrs. Smith & Bradford were the attorneys of record of the plaintiff in the recovery of these judgments.

This was a petition for partition, entered at the June Term of the District Court, 1840, against persons unknown. The respondents entered their appearance in that Court, after the Revised Statutes went into operation, and it was brought into this Court by demurrer. No question was raised, whether, as the law then was, an appeal would lie.

<p>Where a testator in his will, after having said that, “ as touching my worldly estate, I give, devise and dispose of the same in the following manner and form,” and after directing that his “debts and funeral charges be first paid,” without stating by whom or from what fund, proceeded thus: — “My will is, that my said wife Dorothy Varney, shall have the whole of my estate real and personal during her natural life,” and made no other devise or bequest in his will; it was held, that Dorothy Varney took but an estate for life in the land.</p> <p>It is the duty of a tenant for life to cause all taxes assessed upon the estate during his tenancy to be paid; and if lie neglects it, and thereby subjects the land to be sold to pay such taxes, and afterwards receives a release of the title acquired under that sale, it will but extinguish that title, and can give him no rights to hold under it against the reversioner.</p> <p>Where the occupant of land has a legal right to the possession thereof as tenant for life, he is to be considered as occupying according to his legal rights, and not as a wrongdoer, and he cannot establish any title therein by disseizin against tlio reversioner; his possession cannot be adverse ; and he cannot, therefore, bo entitled to “betterments” against the reversioner “by virtue of a possession and improvement” under the statute.</p>

<p>It is well settled at common law, that the dioses in action ox a female, upon her marriage, pass to the husband; so that lie may, at any time thereafter, during the life of himself and wife, reduce the amount due on them to possession*</p> <p>The wife cannot receive payment of the sums due on them, except as the agent of her husband; but if lie knows of payments made to her, and does not object, he will be considered as authorizing them.</p>

<p>Trespass for taking, carrying away and converting certain personal property alleged to have been attached by the plaintiff, then a deputy-sheriff, on a writ in his hands in favor of George F. Richardson v. James P. Frothingham fy Co. The defendant justified the taking, by Jacob Coburn, his deputy, of the property on a writ in favor of Anthony Fernald & al. v. the same defendants, as in the former suit, together with George F. Richardson, alleging them to be co-partners under the name of James P. Frothingham & Co. The attachment returned by Waterhouse, the plaintiff, was on Sept. 3d, 1840, and that returned by Coburn, the deputy of the defendant, was on Feb. 15, 1841.</p> <p>At the trial before Whitman, C. J., after the evidence was all before the jury, the plaintiff became nonsuit by consent. The nonsuit was to be set aside, if in the opinion of the Court the action could be maintained. The whole evidence is given in the report of the case, of which sufficient appears in the opinion of the Court for the proper understanding of the questions of law presented.</p> <p>contended, first: —That the plaintiff made a sufficient and legal attachment of the property which he returned upon his writ. The officer’s return is at least prima facie evidence of the facts therein stated. Nichols v. Patten, IS Maine R. 238. There is nothing in the case to contradict this return.</p> <p>Second. The attachment was continued in force, and not abandoned, when the property was taken away by the deputy of the defendant. Denny v. Warren, 16 Mass. R. 420; Gordon v. Jenney, ib. 469; Hemenway v. Wheeler, 14 Pick. 480; Foster v. Clark, 19 Pick. 332; Fairbanks v. Stanley, 18 Maine R. 302.</p> <p>contended, that the plaintiff never made a valid attachment of the property. To constitute an attachment, the officer, by himself or servants, must be in a situation to control the property, and take it into his actual possession. This was never done. Lane v. Jackson, 5 Mass. R. 157; Train v. Wellington, 12 Mass. R. 495 ; Philips v. Bridge, 11 Mass. R. 242; Knap v. Sprague, 9 Mass. R. 258 ; Nichols v. Patten, 18 Maine R. 238.</p> <p>But if the property was originally attached, the attachment was lost before the deputy of the defendant interfered. He contended that the facts in the case, showed an entire abandonment of the property. Knap v. Sprague, 9 Mass. R. 258; Bonham v. V/ild, 19 Pick. 520 ; Gordon v. Jenney, 16 Mass. R. 469; Gower v. Stevens, 19 Maine R. 92.</p>

<p>Debt on a bond, dated April 20, 1841, given by Charles Fox, as principal, and by the other defendants, as his sureties, the condition of which recited, that Charles Fox had been appointed “ Clerk of the Judicial Courts within and for tho County of Cumberland,” and then proceeded. “ Now if the said Charles Fox shall well and truly do and perform the duties of said office, and fulfil all the requirements of the law touching the same, then this obligation shall be void,” &c.</p> <p>Mr. Fox was a member of the house of- Representatives in the winter session of 1841, and having been appointed clerk in the place of Mr. Cobb, removed, entered upon the duties of the office on April 28, 1841. He held the office until January-26, 1842, when he was removed, and Mr. Cobb, who had been re-appointed, entered upon tho duties of tho office.</p> <p>The statutes in force during the time provided, that each of the clerks shall keep a true and exact account of all the moneys he shall receive, or be entitled to' receive, for services by virtue of his office, and shall annually, on the first Wednesday in January, render to the treasurer of his county under oath, a true account of the whole sum thus accrued ; and after deducting his own salary, pay over the residue, if any, of the gross amount, to the treasurer of his county, for the use of the county.” The clerks were severally permitted to retain the sum of $1000, “if so much shall have accrued to them during the year preceding, and in the same proportion for any less time than one year; and in addition, one half of all the fees of office to them respectively accrued, over that sum or proportional part thereof, as their salaries.”</p> <p>The account, and the only one, rendered by Mr. Fox, was signed by him and under oath, was dated January 5, 1842, and was in these words. “ Amount of fees received by the subscriber as clerk of all the Judicial Courts for the County of Cumberland, for the past year, for entries, continuances, ex’ons, copies, &c. &c., amounting to the sum of nine hundred twenty-seven dollars and forty cents,” It was agreed, that Mr. Fox, during the time he was in office, preceding the first Wednesday in January, 1842, received the said sum of $927,40, and in addition thereto the sum of $780,79, “ for services as particularly set forth and articulated in the three bills charged to the County of Cumberland, copies of which are hereunto annexed and make a part of this case, said bills were severally allowed by the County Commissioners for said County of Cumberland, and the several amounts thereof were paid to him, the said Charles Fox.” And also in addition, the sum of $18,00, for “ issuing venires, &c.” It was admitted that said Fox, during the time he was in office, for services prior to January 5, 1842, received in the whole the sum of $1726,19, and had not paid over any part of it, and claimed the right to retain the whole for his own use. Of this sum $773,75, were for charges prior to August 1, 1841, when the Revised Statutes went into operation. Among the various items of charge in the “ three bills” allowed by the County Commissioners, and the amount paid to Mr. Fox, those for attending the Supreme Judicial Court, District Court, and County Commissioners, amounted to $236, those for making “dockets” to $209,29, those for “indexes to records,” 31,00, one for issuing twenty-eight warrants to the assessors of the several towns to assess the county tax, at 20 cents, $5,60,” one for “ keeping account of Justice’s attendance, April Term, $0,75,” one “for calculating and making up jury districts and equalizing jurors, $6,00,” “issuing venires for jurors, June Term, and keeping an account of time, &c. &c. and certifying the same to the county treasurer, $5,00,; Commissions on $62,50, costs in criminal prosecutions paid treasurer, $3,11; do. on $63,00, jury fees, paid do. $3,15”; with various other charges, some of the same character, and some of a different description.</p> <p>If the plaintiff was entitled to recover, a default was to be entered and the Court was to assess the damages — otherwise a nonsuit was to be entered.</p> <p>argued for the plaintiff, citing and commenting upon the statutes on this subject.</p> <p>The points of defence and the statutes referred to by the counsel are stated in the opinion of the Court.</p>

Trover for a horse. At the trial, before Whitman C. J. it appeared, that one Wilson was the owner of a patent right in a thrashing machine; that he and the plaintiff agreed to go together to New York to dispose of rights in the machine there; that the plaintiff should find money and assist Wilson, and have one half of the proceeds of all sales they could make there; that they went to New York together and received the horse in question in payment of rights sold in the…

<p>The facts in the case are stated in the opinion of the Court.</p> <p>that as the land of the plaintiff was bounded on Harrisicket river, and began at a rock in the river, and run along that line, that the margin of the river and at low water mark was intended. The words at the shore, and by the shore, are equally applicable to the line at low or high water mark. This view is aided by the consideration, that this originally was a partition line of the point of land, and the deeds must have been intended to convey the whole of that side. 3 Kent, 427; • 1 Sim. & St. 190; Col. Ord. of 1641; Storer v. Freeman, 6 Mass. R. 435; 2 Dane, 693.</p> <p>The right set up was, that every inhabitant of the town had the right to take muscle-bed manure there, and of necessity, each must have an interest. Lufkin v. Haskell, 3 Pick. 356 ; Odióme v. Wade, 8 Pick. 518.</p> <p>said that there was a wide difference in the construction of grants of land bounded on rivers where the tide ebbed and flowed, and where it did not. On tide waters, a grant of land, bounded on the shore, extends only to high water mark. Dunlap v. Stetson, 4 Mason, 349 ; Lapish v. Bangor Bank, 8 Greenl. 85 ; Nickerson v. Crawford, 16 Maine R. 245 ; Hatch v. Dwight, 17 Mass. R. 289 ; Parker v Cutler Mill-Dam Co. 20 Maine R. 353. But the bounds also show, that high water mark was intended, as the oak tree must be on or above it, and the stone is on the shore, at high water mark. To, from-and by are terms of exclusion. Bradley v. Rice, 13 Maine R. 198.</p> <p>But if the grant of the plaintiff did extend to the sea, or low water mark, the public have the right to fish, fowl, and take sea manure on the flats. 2 Dane, 693 to 700.</p> <p>The testimony offered, and rejected by the Judge, ought to have been admitted. 1. The verdict could not be evidence in any other suit between different parties, and therefore there was no interest. 2. If any interest, it was too minute, and remote to exclude the witnesses. 3. The witnesses were admissible from the necessity of the case. 3 T. R. 27 ; 4 Mass. R. 488; 7 Mass. R. 398 ; 13 Mass. R. 199 ; 18 Maine R. 49; 2 Fairf. 341.</p>

<p>It is not necessary that the notice to the adverse party that a deposition was to be taken, should be precisely in the form given in Rev. St. e. 333, § 11, It is sufficient, if it conforms thereto in substance.</p> <p>Whore the magistrate before whom a deposition is to be taken, adjourns the time of taking it because the deponent, although duly summoned, did not attend, under the provisions of Rov. St. e. 133, § 3G, it is not necessary to give a new notice to the adverse party, whore he had been duly notified of the time first appointed and did not attend.</p> <p>If an attorney at law has been grossly negligent in the management of a demand entrusted to him for collection, and has promised to pay the amount to the creditor, an action may be sustained against the attorney without first making a demand of the money.</p>

<p>• Where the plaintiff in a bill in equity alleged, that the owner of certain land, being involved in debt, persuaded him to receive a deed thereof and to give his negotiable promissory note therefor, and assured him that payment of such note should never be enforced, and thaj as soon as a purchaser could be found the note should be given up on the re-conveyance of the estate;.and that influenced by such persuasion and assurance, and being wholly innocent of any fraudulent or sinister design in the transaction, and desirous only to aid the owner as far as honestly he might, the plaintiff re- * ceived a deed of the land and gave his promissory, note therefor; and prayed that it might be decreed, that the note should be given up or can-celled on a re-conveyance of the estate; on demurrer to the bill, it was held: —</p> <p>That such arrangement was fraudulent as to the creditors of the grantor, but that it might be good as between the parties to it, as neither of them could be permitted to allege a mutual fraud upon the rights of others, as a ground of relief from it: —</p> <p>And that with reference to the parties to it alone, it presented but the case of a conveyance of real estate and a payment for it by note with an alleged verbal agreement that the note should be returned to the party giving it on his re-conveying the estate to the other, which parol agreement, to destroy the effect of the deed and note, could no more be received in equity than at law.</p>

<p>Assumpsit against J. S. Putnam and Paul Langdon, as executors of the last will and testament of Elizabeth Sewall, to recover the sum of $250, alleged to have been paid by mistake in supposing that a note from the plaintiff to the testatrix was on interest from its date, when in fact it was not on interest until it became payable. The note was for $2212,25, payable to William Goddard and by him indorsed, “without recourse,” bearing date Nov. 5, 1835, and payable on March 24, 1837. There was nothing said in the note respecting interest. There were the following indorsements on the note. “ Oct. 17, 1837. Received $265,45 for two years interest on this note.” “ July 26, 1839. Received interest to Nov. 5, 1839, ($232,27.)” “May 10, 1841. Received note for inerest, $175.”</p> <p>The note was given up to the plaintiff on May 10, 1841, by direction of the executors, on his conveying to them certain real estate and transferring certain stock in a bank at Portland. At the trial before Whitbian C. J, the defendants introduced testimony tending to show, that the real estate and bank stock taken in payment thereof were of less value than the amount of the note. Letters from the plaintiff to Mrs. Sewall and to the executors, and from them to him, wer.e read. The letters and evidence are stated at length, but sufficient appears to understand the questions of law involved in the case, without copying the whole here.</p> <p>The report states,' “ that the defendants, by their counsel, contended that the house and lot conveyed to them was received by them in satisfaction of the amount due on the note of Nov. 5, 1835, at the time of the decease of the testatrix, and the note of $175, afterwards paid, was received for and in lieu of the interest which accrued subsequent to such decease— that the proposition in writing dated April 28, 1841, signed by one of the defendants and accepted by the plaintiff in writing under his hand, and carried into effect by the plaintiff May 10, 1841, is conclusive in this case as to what were the terms of the contract between the parties; that the letters of April 19, 1841, and April 26, 1841, though not objected to when introduced, which was before the letter from Paul Lang-don to Judge Preble had been read, are not admissible or competent in law to explain or vary the .terms of the proposition so made and accepted; and that neither are the letters of May 15 and May 25, 1841, competent or sufficient to modify or explain the aforesaid proposition of April 28, and acceptance thereof of May 10; and further, that the proposition on the part of the defendants being entire and as such carried into •effect by the plaintiff, if it were founded upon a mistake of the parties, such supposed mistake cannot be corrected in this form of action by the plaintiff, but that the contract must be set aside by a bill in equity so that the parties may be respectively restored to their former rights and condition. And the defendants’ counsel further contended that the payment of $265,45, Oct. 17, 1837, should be applied first to pay any interest actually accrued, and the balance towards the principal, and could not, nor any part of it, be recovered back as paid by mistake. And the defendants’ counsel moved the Court so to instruct the jury in these several particulars.”</p> <p>The presiding Judge declined so to instruct them; and instructed them, that they must determine from the evidence whether the $212,25 was for money actually received, or for , the interest which would accrue on a loan of $2000, being the residue of the note until the time when it would become payable. That if the latter, then they must ascertain from the evidence whether the $212,25 had or had not by mistake been treated as a part of the principal, and whether the plaintiff' and defendants had finally adjusted and settled the note upon the supposition that it was so. That if they should be satisfied in the affirmative, then the plain (iff, in the absence of any fraud practised on his part, was entitled to recover. , But if in the final adjustment nothing more had been exacted and received than the $2000, and interest thereon, then the plaintiff ought not to recover. That if on the other hand the mistake did exist,, yet if the circumstances attending the final adjustment were such as to authorize the belief that it was not the understanding of the parties, that the defendants were exacting payment of the note in full with interest on the $2212,25, and that in getting payment in the manner they did, they were merely compromising with the debtor, as if in doubtful or insolvent circumstances, and without receiving or calculating to receive the whole amount of $2212,25, with interest thereon, the plaintiff could not recover. Tire verdict was for the plaintiff for the sum of $212,25, with interest thereon.</p> <p>The letter referred to, as dated April 28, 1841, was introduced by the defendants, was addressed to the attorney of the executors in Portland, and was in these words : “ In our proposal to Mr. Goddard, we engaged to give up his note, he paying $175 as interest on his note, and conveying or transferring to the executors twelve shares in the Canal Bank, and house, land and appurtenances belonging to the same, which we viewed, with a good deed of the same. If he complies with the above, you will please settle the business, and oblige your ob’t serv’t, Paul Langdon.</p> <p>“April 28, 1811.”</p> <p>On the back of this letter, in the handwriting of the plaintiff, were these words.</p> <p>“Portland, May 10, 1841.</p> <p>“Received of Judge W. P. Preble the note within referred to, I having complied with the requirements therein expressed.</p> <p>“ Henry Goddard.”</p> <p>The defendants also moved that the verdict might be set aside and a new trial granted for the following reasons.</p> <p>1st. Because the verdict is against law upon the facts offered in evidence and proved in the case.</p> <p>2. Because the damages assessed by the jury áre excessive, and not warranted by the rules of law.</p> <p>3. Because the verdict is against evidence.</p> <p>4. Because the Court left the legal construction of written evidence of contract as matter of fact to the jury.</p> <p>5. Because the Court misdirected the jury in matter of law.</p> <p>6. Because the Court and jury by the direction and disposition of the cause have made a contract for the testatrix which she never entered into.</p> <p>7. Because the Court refused to direct the jury in matters of law as the defendants requested them to do.</p> <p>argued in support of the positions taken by him at the trial, and in his motion.</p> <p>said that if the verdict was for a sum greater than the amount received by mistake, that he would release it.</p> <p>The mistake was in casting too much interest on the note. This interest was paid in money, and paid and received as interest. The principal was paid in a mode satisfactory to the parties, though not in money. If the parties had not agreed to the payment of the money as interest, the law would so have appropriated it. Too much money was paid, and it may be recovered back in this action. Howe v. Bradley, 19 Maine R. 31; Cremer v. Higginson, 1 Mason, 307 ; 4 Cranch, 317 ; 6 Cranch, 8 ; 9 Wheat. 720.</p> <p>There was no compromise, or contract of compromise, between the parties. No deduction was made in the amount, and no mention of any deduction is made by either party in the whole transaction. The debt was agreed to be paid, and was paid in real estate and bank stock instead of money.</p> <p>But if it can be called a contract, we do not seek to dis-affirm it, but to confirm it. By mistake there was an overpayment, which we ask to recover back. Payment is the execution of the contract. This contract, however, was the original contract by the note. The mere agreement to take property in payment, instead of money, is not the contract on which the payment wras made.</p> <p>The letter of Langdon of April 28, 1841, refers to certain other letters, as containing the proposition. These are clearly admissible, and as much so, as a deed is, which is referred to in another for a description of the laud intended to be conveyed.</p>

<p>Case against the defendant, deputy inspector of beef and pork for the County of Cumberland, for neglect of duty in putting up and inspecting beef of the plaintiffs, whereby it became injured and worthless.</p> <p>The testimony given at the trial is set forth in the exceptions, and is quite voluminous. It appeared that, the plaintiffs, by an agreement with Porter, furnished the hands who performed the labor in cutting, packing, and salting the beef, and furnished the barrels wherein the beef was packed. The proof was sufficiently clear, that the beef was unfit for use; and it became a subject of inquiry whether it was occasioned by the negligence of the defendant, or by the misconduct of the men employed by the plaintiffs, or by latent defects in the barrels furnished by them. The bill presented by the defendant and paid by the plaintiffs was as follows.</p> <p>“ Nov. 1840. Hayes & Barstow, Drs. to R. Porter for inspecting beef, 323 barrels, for 15 cents, $48,45.</p> <p>“ Received Pay, Rufus Porter.”</p> <p>Thirty barrels of the beef were alleged to have been injured. They were marked by the defendant, “ R. Porter, Inspector.” The declaration alleged, that in consideration, &c. “ the said Porter undertook to inspect, cut, w'eigh, pack, salt and cooper said beef in a careful, faithful and proper manner; yet not regarding the duties of his said office, nor the charge that he had taken upon himself as aforesaid, the said Porter so ignorantly, negligently and unskilfully inspected, cut, weighed, packed, salted and coopered said beef, that the same thereby became putrid,, disgusting and worthless, and the plaintiffs have thereby wholly lost the same.”</p> <p>It was contended by the defendant, that the statutes of the State regulating the inspection of beef and pork for export were not applicable to and did not govern this case, where the parties made such an agreement or arrangement as appears from the testimony, so far as the parties to such agreement were concerned, although they might apply, and the duties and liabilities of the defendant be prescribed and determined thereby, so far as third persons and the public are concerned, and in a different form of action.</p> <p>It was further contended that the defendant was not accountable for the conduct of the plaintiffs and the laborers and coopers employed by them, and that if the beef was improperly put up by them, or became'damaged in consequence of their negligence, inattention, mistakes or wrongdoings, the defendant was not accountable therefor.</p> <p>The defendant further contended that he was not accountable for barrels furnished by the plaintiffs, and that if the beef became damaged in consequence of defects in the barrels, he was not accountable therefor; more especially if the barrels appeared to be good at the time they were used and had latent defects not known to him at the time, and which he could not discover by the use of ordinary skill and care, as was contended ; and that he was not accountable for the conduct of the cooper who selected and coopered the barrels, and whose duty it w'as to select and cooper suitable barrels.</p> <p>It was further contended for the defendant, that if the defendant was accountable for the barrels furnished and used, yet the plaintiffs’ declaration w7as insufficient in this respect, and that under it the plaintiffs could not recover for any damage resulting from said barrels.</p> <p>Upon the testimony, Whitman C. J. presiding at the trial, instructed the jury, that if the defendant had not conducted negligently to the injury of the plaintiffs they could not recover in this action against him; that they must look to the law to ascertain what his duties were; that the law requires, “ whenever the inspector or his deputies shall have inspected and assorted beef and pork, as the law requires, the said inspector or his deputies, with his own laborers and coopers, or such other laborers and coopers as they shall employ, and for whose conduct in said business they shall be accountable, shall cut, weigh, pack, salt and cooper the said beef, which they have thus inspected.” And that “ every barrel and half barrel, in which beef or pork shall be packed and repacked for exportation, shall be made of good seasoned rift white oak, white ash or maple staves and heading, free from any defectThat the manner in which the laborers were furnished in this case, as developed in the testimony, did not exonerate the defendant from his obligation to observe the provisions of the law: That he would at least be liable to a penalty if he had not observed them.</p> <p>But that if the plaintiffs had colluded with him in violating the law, or had furnished him with barrels which were defective in such a manner that, with due care, he could not ascertain that they were unsuitable for the purpose, they could not recover against the defendant for any injury they had sustained therefrom. But that the jury would consider whether the plaintiffs had or not conducted in good faith, and if they had, and had given the defendant to understand, that they relied upon him to have the beef properly packed and inspected, and he had been guilty of any neglect in doing it, whereby they had been injured, they would have a right to recover against him the amount of injury so occasioned. If he was aware when the beef was packed that the barrels were unsuitable for the purpose, he violated the law in using them, and if it was to the injury of the plaintiffs they had a right to recover for it in this action. And that the plaintiffs’ declaration was sufficient to entitle them to recover upon this ground. That if they, the jury, were satisfied the plaintiffs were entitled to recover, they would ascertain the amount of the damages from the evidence; if not they would return their verdict for the defendant.</p> <p>The verdict was for the plaintiffs, and the defendant filed exceptions to the ruling of the Judge ; and also filed a motion for a new trial because tho verdict was against evidence.</p> <p>contended that the duties and liabilities of an inspector of beef were regulated entirely by statute, and that no remedy existed against him, except such as the statute provides. This action therefore cannot be maintained. As it repecis the public, the remedy is by enforcing the penalty. As it respects the plaintiffs, they made a special contract, and furnished the persons who performed the work, and received seventeen out of the thirty-two cents allowed by law for the inspection of a barrel of beef. The inspection was by the plaintiffs themselves, and they have no cause of action against the defendant.</p> <p>The defendant is not liable for the negligence, or want of skill of the men furnished by the plaintiffs, or accountable for the damage sustained thereby. The instructions therefore were in this respect erroneous.</p> <p>The instructions are also erroneous, because they make the defendant liable for defects in the barrels provided by the plaintiffs, and coopered by men employed by them.</p> <p>But even if any such liability existed, this declaration does not claim damages for that cause, and will not enable the plaintiffs to recover on that account.</p> <p>said that the penalty given by the statute furnished no remedy to persons injured by neglect of duty of the defendant. Any other person, equally with the injured, might sue for it, and besides, it might be wholly inadequate. Like the sheriff, his duties are mainly prescribed by statute, and like the sheriff, the inspector is liable at common law to the party injured by his official misconduct. Barden v. Crocker, 10 Pick. 383.</p> <p>The St. 1821, c. 148, § 5, expressly makes the inspector liable for the acts of the persons employed in the business. The men were procured by the plaintiffs merely for the accommodation of the defendant, who might accept or reject them as he pleased. The object of the law was, that he should oversee the work, and cause it to be done well and according to law.</p> <p>The defendant is liable for due care aud diligence in seeing that the barrels are good ; and the instructions to the jury make him liable for no more.</p> <p>The declaration is sufficient; for the beef could not be well packed, if the barrels were bad.</p>

<p>So far as it respects the rights of the creditor, the effect is the same, if the execution be placed in the hands of the sheriff, within thirty days after judgment, as it would have been if it had been placed in the hands of his deputy who made the attachment, for the law regards the sheriff and hia deputy the same officer.</p> <p>When the sheriff has the execution in his hands for service, notice to his deputy who made the attachment, within the thirty days, that the attachment has been preserved and that the creditor claims to have the property attached applied to satisfy the execution, will be equivalent to a demand for the property.</p> <p>If the attaching officer delivers the property to a third persou, taking his receipt to re-deliver the same, and afterwards, before the expiration of thirty days after judgment, sends the receipt to the attorney of the creditor, without any request or agreement that it should be received as a substitute for the claim of the creditor upon the officer for a delivery of the property, and the attorney takes measures to obtain it from the receiptor; this does not discharge the officer from his liability. •</p> <p>This stipulation in a receipt to an officer for property attached, on the delivery thereof; “ I further agree, that if no demand be made, I will, within thirty days from the rendition of judgment in the action aforesaid, re-deliver all the above described property as aforesaid at the above named place, and forthwith notify said officer of said delivery,” appears to be a valid contract.</p>

Assumpsit by the plaintiff, described in the writ as “ master of the house of correction situate in Portland,” for the support of Harding Lombard in the county house of correction from March 1, 1837, to April 23, 1839. The writ was dated January 26, 1842.

<p>The provision in the militia act of 1834, § 19, (Rev. St. c. 16, § 14) which requires tiiat, when any person shall enlist, into any volunteer company, “ the commanding officer of the company, into which such person may enlist, shall give notice thereof in writing to the commanding officer of the standing company, in which such person is liable to do duty, within live days,” is not applicable to an enlistment by a petitioner for the volunteer company at its first formation prior to the choice of officers.</p>

Exceptions from the Western District Court, Goodenow J. presiding. The form of the action, and general bearing of the testimony appear in the opinion of the Court. Thaxter, a witness called by the plaintiff, went with him to the house, and states the conversation thus, “ Capt, Blake told the defendant she must be accountable for the rent.

Exceptions from the Western District Court, Goodenow J. presiding. At the June Term of the District Court for this County, 1841, Welch recovered judgment against Chesley, and the latter appealed to the next term of the S. J. Court, and entered into a recognizance, tvith the other defendant as his surety, to prosecute the appeal.

This was a writ of entry, demanding against James McDonald and his wife a farm lying partly in Gorham and partly in Standish. The evidence reported, and the papers referred to, cover much space, and are not necessary for the proper understanding of the points decided. Sufficient appears in the instruction of the Judge at the trial, and in the opinion of the Court.

This was a bill in equity, brought by Seth Spring, and was heard on bill, answer and proof. After the answer was made, the proof taken, and an argument thereon, Seth Spring died, and the heirs at law did not come in until the Judges who had heard the argument, had gone out of office without coming to a decision. The case was again argued at the April Term, 1843.

On July 25, 1834, Elizabeth Sewall, widow of the late Judge David Sewall of York, made her will. This was in her own handwriting. Held: that Mary Harris took an estate in fee in the land, and the absolute ownership of the personal property. And in Burbank v. Whitney, 24 Pick. 146, the same principle is recognized.

<p>The Stat. 1821, c. 122. § 15, (Rev. Stat. c. 32, § 35) does not authorize the removal, to the place of their lawful settlements, of those persons who might be considered as likely to become chargeable as paupers at some future and as yet uncertain time; but authorizes their removal only, when the fact whether they were likely to become chargeable, would not depend upon a contingency, but upon an ascertained necessity.</p>

This was an appeal from a decree of the Judge of Probate, approving an instrument as the. last will and testament of Elizabeth F. Gerrish. Two of the subscribing witnesses were present and testified on the trial before the jury, Shepley J. presiding, and the testimony of the other was read from the minutes of the Judge of Probate by consent, the witness having since deceased.

<p>If a record be destroyed or irrecoverably lost, parol evidence is admissible to show, that it once existed, and the purport of it.</p> <p>The writ, with the officer’s return of his doings in virtue of it, is to be regarded as appertaining to, and indeed a part of the record.</p>

This action was assumpsit, and was commenced on Oct. 22, 1841, to recover the sum of eighty dollars and eighty-four cents paid by them to the inhabitants of the town of York, on Oct. 14, 1831. The declaration was upon the statute, 1821, c. 122, 19, and averred that the plaintiffs were entitled to recover by virtue thereof. The statute of limitations was pleaded.

<p>Where the owner of land had been disseized thereof for twelve years, and at the end of that time had made an entry thereon, and brought his writ of entry and recovered judgment therein for the land, and the tenant had put in his claim for betterments, and had the same allowed upon the trial; it was held, that an action of trespass quare clausum, commenced while that suit was pending, for cutting trees on the premises during its pendency, could not be maintained.</p> <p>And it would seem that an action of trespass quare clausum, cannot be maintained against one who has become legally entitled to his improvements upon tho premises, for cutting trees thereon, after he has become thus entitled.</p>

<p>It was held that the printed volume of Massachusetts Revised Statutes which went into effect on May .1, 1836, wherein was found a reference to a prior statute, as Stat. 1824, o. 130, and a repeal of Stat. o. 130, describing it as “ an act to allow grace on bills of exchange and notes, according to the custom of merchants,” was competent and sufficient evidence from w liicli a jury might infer, that by the laws .of Massachusetts, grace was allowed on promissory notes, on I’ob. 6, 1836.</p> <p>It is not competent for the defendant,, under the provisions of Rev. Stat. e. 69, § 3, to testify to any facts, but such as go to establish the defence of usury.</p> <p>The verdict of a jury is not valid and final until pronounced and recorded in open Court.</p> <p>If the jury return a verdict into Court, which is not such as the issue requires, the Court may send them back to reconsider their verdict, with appropriate instructions, at any time before it is received and recorded as a verdict.</p> <p>Courts take notice of the local divisions of the State into counties, cilios, and towns; but they are not bound to take judicial notice of the local situation and distances o'f places in counties from each other.</p>

Hooper & Bickford recovered a judgment in this suit for debt and costs, and had previously recovered a judgment for costs of a suit brought by Brundage against them, and recovered judgment against Brundage in a writ of entry, the costs'of which remain unpaid. Brundage had brought a suit against them, wherein they had brought into Court $275,00, which was taken out by his attorney.

This was an action of trover to recover about 1300 mill logs marked W. H. It appeared that Joseph W. Ilaley by contract in writing, agreed to purchase of the plaintiff' the standing trees on a lot. of land for (¡>350,00, and that he gave his notes to the plaintiff at that time for the purchase money.

<p>While the common law doctrine is admitted, that there must be proof of a consideration to support an unsealed written contract, the position cannot be maintained without limitation, that a moral obligation is a sufficient consideration. There are many moral duties, which cannot be enforced at law, although a verbal or written promise may have been made to perform them.</p> <p>Where one person has voluntarily received a benefit from another, not gratuitously conferred, or has been the occasion, without sufficient excuse, of loss or injury to another, there arises a moral obligation to compensate him ' for the benefit received or the loss occasioned ; and the law will enforce the performance of this duty, if some statute, or rule of public policy, providing for the general good even at the expense of individual loss, does not interpose.</p> <p>A contract, void by the statute of frauds, from which a party might otherwise have derived a future benefit, is not a legal consideration for an express promise; but if one party, by such contract, has induced the other to perform in part, or to incur expense in preparations to perform, while he i’c-fuses him the future, benefit of the contract, the loss and injury thereby occasioned is a valid consideration for a promise to make compensation therefor.</p>

<p>This suit was commenced Oct. 3, 1842, on a bond dated June 9, 1841, given to procure the release of Berry from arrest upon a writ in favor of the plaintiff against him.</p> <p>The case came before the Court upon, a statement of facts, from which it appeared that the poor debtor’s oath provided in the statute of 1836,-had been duly administered to the debtor, Sept. 17, 1842, before two justices of the peace and of the quorum, both selected by the debtor, on Sept. 17, 1842. Final judgment in the action was recovered at the adjournment of the May Term to Aug. 17, 1842, more than fifteen days prior to taking the oath, the notice to the creditor having been given within the fifteen days. The justices certified, that the attorney of the plaintiff was present at the time of the taking of the oath, and objected to their jurisdiction, because more than fifteen days had elapsed after final judgment, and because they had not been legally selected, and that they overruled the objections.-</p> <p>It was agreed, that if the question as to amount of damages was properly for the decision of a,jury, that Berry, the debtor, was without visible property and reputed to be poor; and that the Court should render such judgment in this case as they should deem authorized by law, and in case they should hold the question of damages to be triable by a jury, they were authorized to determine what, if any, damages the plaintiff has sustained, in the same manner as a jury should.</p> <p>and cited and commented upon Rev. Stat. c. 115, <§> 78, and the act of amendment of the Rev. Stat. in 1842, c. 31, <§> 9; Hathaway v. Crosby, 5 Shepl. 448; Stat. 1830, c. 463; Rev. Stat. c. 148, § 35, 36, 37, and 39.</p> <p>and cited and remarked upon Stat. 1835, c. 195, <§. 7, 8; Stat. 1836, c. 245, <§■ 3, 8; Rev. Stat. c. 115, <§> 78; Goodwin v. Huntington, 5 Shepl. 75; Oriental Bank v. Freese, 6 Shepl. 113; 6 Dane, 600; 3 Greenl. 156; 3 Shepl. 55; 6 Shepl. 152; 3 Shepl. 338; 4 Shepl. 386; Rev. Stat. c. 148, *§> 17, 5; Rev. Stat. repealing act, <§. 2, 4; 4 Shepl. 370,</p>

<p>In an action upon a bond given to procure the release of a debtor from arrest on mesne process, the condition of which has not been performed, where there was no evidence in relation to the amount of damages, excepting that the poor debtor’s oath had been irregularly taken by the debtor before two magistrates who had certified that he was clearly entitled to have the oath administered after a disclosure of his affairs, it was held, that execution should issue for nominal damages only.</p>

<p>This action was assumpsit on a note given by Isaac Chapman and the defendant to the plaintiff, January 5, 1839, for $39,44. The facts were agreed, from which it appears, that the plaintiff had an account against Isaac Chapman, amounting to $51,44, the first item being under date of Nov. 28, 1838, and the .last Jan. 2, 1839. There were credits of cash, Nov. 30, 1838, $5,00; Dec. 3, $5,00; and Dec. 19, $2,00. The note was given on the day of its date for the balance. A part of the charges in this account, amounting to $27,66, was for spirituous liquors sold in the town of Saco by the plaintiff to Isaac Chapman, in less quantities than twenty-eight gallons, for the purpose of being sold out in small quantities in that town. At the times when the articles were sold and delivered, the plaintiff had no license authorizing him to sell spirituous liquors.</p> <p>If in the' opinion of the Court, the action could not be sustained for the whole or some part of the note in suit, judgment was to be entered for the defendant; and if it could, judgment was to be rendered for the plaintiff, for such sum as the Court should adjudge he was entitled to recover.</p> <p>contended that the Staf. 1834, c. 141, ought not to be extended by construction; and that it would seem reasonable to suppose, that inasmuch as the legislature has provided remedies in the act itself for any violation of the provisions of the act, that no further consequences should follow. This view is confirmed by the fact, that in other statutes, where it was intended to avoid securities, &c. they are made void by the acts themselves. In the English statute relative to the sale of spirituous liquors, 24 Geo. 2, c. 40, notes, &c. are expressly made void. By our statute it is not so, and it forms a good reason for believing, that the legislature did not intend to attach such consequences to securities given for liquors.</p> <p>But however it may be in reference to that part of the note given for liquors, it would seem that the decisions are clear, that if the legal can be separated from the illegal part of the consideration of a note, that judgment will bo given for amount of the legal part. Even in England, where such notes are expressly made void by statute, the legal part of the consideration may.be recovered, if it can be distinguished. Crookshank v. Rose, 5 Car. & P. 21; Gilpin v. Rendle, Selw. N. P. 61; Dawson v. Remnant, 6' Esp. R. 24; Spencer v. Smith, 3 Campb. 9. This question has been decided, directly, in Pennsylvania. Yundt v. Roberts, 5 S. & Rawle, 139. The credits should be deducted from the amount of spirits, and that balance from the whole sum. This would leave $23,95, for merchandise ; and for this sum and interest we ought to have judgment.</p> <p>The case shows, that the liquors were bought to be sold again ; and courts have held, that in such cases, even the act of 24 Geo. 2, c. 40, did not apply. Peake’s N. P. R. 181.</p> <p>There is no privity between the plaintiff and defendant in relation to the consideration. The goods were sold to Isaac Chapman, and the defendant cannot come into Court and insist on the defence set up here.</p> <p>in support, of these positions.</p> <p>1. The St. 1831, c. 141, forbids, the sale of spirituous liquors without license, in such quantities as were here sold, under a severe penalty. The note is void so far as it had for its consideration the spirituous liquors sold in such illegal manner. It is well settled that a contract made in violation of any statute provision is illegal and void ; and that a security given in pursuance of it, or to carry it into effect, is illegal and void also. Nor can the price of goods sold in violation of a statute be recovered. Chitty on Con. (5 Am. Ed.) 417, 427; Met-calf on Con. in Am. Jurist, No. 43, 44, 45 ; Hunt v. Knickerbocker, 5 Johns. R. 327 ; Greenough v. Batch, 7 Greenl. 462 ; Wheeler v. Russel, 17 Mass. R. 258. It can make no difference, whether a statute prohibits a contract expressly, or only impliedly by the infliction of a penalty. 5 B. & Cr. 406 ; Kepner v. Kelfer, 6 Watts, 231; Wright v. Geer, 1 Root, 474; 1 Taunt. 136; Chitty on Con. (5 Am. Ed.) 419,422, 694, 696 ; Garth. 252; Mitchell v. Smith, 4 Dali. 269; Roby v. West, 4 N. H. R. 287; 2 Kent, (4th Ed.) 466.</p> <p>2. The partial illegality of the consideration of the note in suit, vitiates the whole note, and renders it entirely void. There is a distinction to be observed between a want, or failure, and illegality of consideration. Want or failure of consideration in part can effect a promise only pro tanto. Parish v. Stone, 14 Pick. 198. Partial illegality destoys it entirely. Metcalf on Con. before cited; Chitty bn Con. (5 Am. Ed.) 692, 693, 694; Com. Dig. Assumpsit, B. 13; Bliss v. Negus, 8 Mass. R. 51; Greenough v. Batch, 7 Greenl. 461 ; 1 Chip-man, 137'; 6 N. H. R. 225; 2 B. & P. 377; 1 Kent, (4 Ed.) 467; 2 Stark. Ev. (6th Ed.) 50, and note. The consideration of the note was entire, and cannot be separated. It was not given for the legal charges, but for the balance of all the charges. Cro. Eliz. 199; 3 Taunt. 226; 1 T. R. 359; Greenough v. Batch, 7 Greenl. 462; 2 Kent, 467.</p> <p>3. Whether the consideration of the promise be entire or not, the promise itself indisputably is; and if any part of an entire promise be illegal, the whole promise is void. Chitty on Con. 692, 693 ; 11 East, 502; 7 T. R. 200 ; 2 Vent. 223 ; 8 Johns. R. 253 ; Loomis v. Newhall, 15 Pick. 167.</p> <p>Decisions upon the Stat of Geo. 2, c. 40, are not applicable to the present case, since that statute did not make the sale of spirituous liquors illegal, either by an express prohibition or a penalty, but only prevented the seller from maintaining an action for the price thereof. Chit ly on Con. 755.</p> <p>If any portion of the note can be recovered, it should be merely for the small balance remaining after deducting the credits from the amount of the legal charges. No appropriation has been made by the parties, and the law will appropriate the credits first in payment of the legal charges. Hilton v. Burley, 2 N. H. R. 196; Greenough v. Batch, 7 Greenl. 463. If this rule is not adopted, the credits should go in payment of the first items of charge.</p>

Exceptions from the Western District Court, Goodenow J. presiding. The Mousam Manufacturing Company were summoned as trustees of Knox on Sept. 1,1842, and disclosed, that at the time of the service upon them there was in their hands a sum of money, due from them to Knox for his personal services from Jan. 3, 1842, to Feb. 3, next following, amounting to $28,50, which remained in their hands ; and that Knox left their employment on Feb. 3, 1842.

Assumpsit upon a writing of this tenor. “March 26, 1836. James Irish. Pay Daniel Burnham or order, fifteen hundred forty-seven dollars and sixty-eight cents, for value received. “ J. Spring.” Irish was called by the plaintiff, and testified that the paper was presented to him for payment in the month of March, 1836, and that he refused to pay it, having no funds of the defendant in his hands at that or any other time, and so informed the plaintiff at the time.

The parties agreed on a statement of facts. The suit was commenced May 3, 1842, on a note for $28,84, dated Eeb. 8, 1830, payable to the plaintiffs in sixty days with interest, given jointly and severally by Waterhouse as principal, and by Hersey as surety. On August 8, 1836, an agreement was signed by Waterhouse, on the back of the note as follows: “August 8, 1.836. I agree to pay the within. Joseph Waterhouse.” Waterhouse is defaulted.

Exceptions from the Western District Court, Goodenow J, presiding. The plaintiff claimed to support his action as indorsee of a note made by the defendant to Baker Webster or order, for $1250, dated Sept. 9, 1839, and payable one half in one year and one half in two years. The writ was dated Oct. 2, 1840, The indorsement was thus : — “Baker Webster by D. Web-i ster, Agent.” The defendant denied, that D^ Webster had any authority tp make the indorsement.

<p>On August 27, 1814, Seth Spring conveyed to Stephen Chase, by deed of warranty with the usual covenants, a tract of land in Lovell, for the consideration of one .hundred and twenty dollars. Chase entered into possession under his deed, and continued in the uninterrupted possession until August 17, 1831. Seth Spring conveyed this land, with much other real estate, to Samuel Parkman by absolute deed, dated Jan. 8, 1814, but not delivered until March 18, 1814, when Parkman gave back to Spring a writing, not under seal, promising to re-convey the premises on the payment of certain notes against Seth Spring and sons; and if the notes should not be paid, to sell sufficient to pay the notes and convey back the residue, if any. On July 4, 1827, this writing was assigned by Seth Spring to John Spring, and given up to the heirs of Parkman, who conveyed the whole real estate included in the deed of Spring to Samuel Parkman to John Spring, and he paid a portion of the amount due, and mortgaged back the same property to secure the payment of the balance. On August 17, 1831, the heirs of Parkman made a formal entry on the land conveyed to Chase, under the mortgage of John Spring, for condition broken, but did not otherwise interrupt Chase in the possession. On Nov. 15, 1832, Chase paid the heirs of Parkman seventy-five dollars, and received from them a release of their right in the land conveyed to him by Spring, commenced a suit against Seth Spring, declaring on all the covenants in his deed, and in Jan. 1833, took judgment by default for the sum of $252,60, and costs of Court, $9,63. He took out execution on this judgment, and collected thereon $153,00. Seth Spring petitioned for a review of Chase’s action against him, which was granted; and on the hearing, the facts above stated appeared.</p> <p>said the action of Chase could not be maintained on the covenant of seizin. Spring was in possession as the owner of the equity, and conveyed to Chase who entered into the possession under his deed and has remained in the actual possession ever since. He had been in possession more than seventeen years when the entry was made under the mortgage. If things had remained, as before the entry of Parkman’s heirs, no suit could have been maintained. This covenant was not broken.</p> <p>The action may be maintained on the covenant against incumbrances. The measure of damages, in such case, is the amount paid to extinguish the only incumbrance upon it and interest.</p> <p>If there can be a recovery on the covenant of warranty, the measure of damages is the value of the land at the time of the eviction. In this case, it is the sum he paid to Parkman to acquire a perfect title, and interest to the time of judgment. He cannot say, that lie purchased the land for less than its value ; especially, when there is no evidence, that it was not the true value. And we may reasonably suppose it was timberland, and that the defendant has taken off the timber. Whether Chase can recover on the covenant of warranty, or on that against incumbrances, it is immaterial to inquire, as in this case the damage would be the same. The principles of law governing this case are clearly settled, and familiar. Boothby v. Hathaway, 20 Maine R. 251; Cushman v. Blanchard, 2 Greenl. 266; Bearce v. Jackson, 4 Mass. R. 408; Twambly v. Henley, ib. 441; Marston v. Hobbs, 2 Mass. R. 433.</p> <p>Chase then was entitled only to the seventy-five dollars paid, and interest until he received the money of Spring, and costs of suit, and the judgment should be reversed for the residue. We are entitled to an execution for the overpayment and interest, and our costs of the petition for review and of the present trial. Kavanagh v. Atkins, 2 Greenl. 397; Rev. St. c. 124, § 12.</p> <p>contended that nothing passed by the deed of Spring to Chase, as the conveyance to Parkman had already been made.</p> <p>The paper given back did not make the transaction a mortgage, because it was not under seal, and was not at the same time, and part of the same transaction, and was not recorded. Fuller v. Fratt, 1 Fairf. 197; 5 Dane, c. 104, art. 10; Kelleran v. Brown, 4 Mass. R. 443 ; Flint v. Sheldon, 13 Mass. R. 443 ; French v. Sturdivant, 8 Greenl. 246; 5 Pick. 450; 7 Pick. 157. The Stat. 1821, c. 50, gives no definition of the term defeasance, but leaves it to be determined by the common law. Parkman then was seized of the premises, and the covenant of seizin was broken as soon as the conveyance was made, and the measure of damage was the consideration paid and interest.</p> <p>The possession of the mortgagor is the possession of the mortgagee. Spring did not hold adversely to Parkman, but under him, by virtue of his right to have the land on the payment of a certain sum. Spring therefore was not in possession as a disseisor of Parkman, and no seizin was imparted to Chase by the deed. Noyes v. Sturdivant, 18 Maine R. 104. Although in possession Spring claimed no title, and the action could be maintained against him forthwith. Wheeler v. Hatch, 3 Fairf. 389; Kinsell r. Daggett, 2 -Fairf. 309. It is only where the deed conveys a seizin to the grantee, that the grantor is liable on the covenants of warranty. The grantee is liable to Parkman for profits derived from- the land, if there had been any. As there is no evidence on the subject, it is to be presumed there were none.</p> <p>The deed from Parkman’s heirs to Chase was a mere release of their right. If John Spring had redeemed his mortgage, Chase would have had no title to this land. The sum paid to Parkman for this release has nothing to do with the subject of damages. There is, therefore, no good reason why the original judgment should be in any part reversed.'</p>

<p>This was a bill in equity, and was heard on bill, answer and proof, and was very fully argued in writing. Including the arguments, the case extended to two hundred and thirty-five printed, and seventy-four manuscript pages. A statement of the prominent facts, sufficient to understand the questions of law arising out of them, will be found in the opinion of the Court. The legal positions, only, taken by the counsel for the parties, respectively, with the authorities cited in support of them, can be given without filling a greater portion of the volume, than can be spared for any one case.</p> <p>cited the following authorities in support of their argument.</p> <p>Firstly, that the original contract was void :</p> <p>I. Because Chase had no title to the property he undertook to convey, and nothing was conveyed to Bradley. 2 BI. Com. 451; 3 BI. Com. 166 ;-Chit. on Cont. 133 ; Story’s Eq. Jur. § 134, 141, 142, 143, 208, 219, and authorities cited; Pasley v. Freeman, 3 T. R. .57, 58 ; Bingham v. Bingham, 1 Ves. 126 ; Johnson v. Johnson, 3 Bos. &, P. 162; Caswell v. Black River M. Co. 14 Johns. R. 453, 457; Johnson v. Tool, 1 Dana’s R. 469; Waggener v. Waggoner, 3 Munro. 556; Cox v. Strode, 2 Bibb, 275 ; Gill v. Corbin, 4. J. J. Marsh, 596.</p> <p>And even where the title to a material part fails, the contract will be set aside. • 2 Kent’s Com. 470 to 476, (3d Ed.) and cases cited; Roffey v. Shallcross, 4 Madd. 227; Dalby v. Pullen, 3 Sim. 29; Edwards v. M’Leary, Coop. R. 308; Cassamajor v. Strode, 2 Myl. & Kee. 726; Hammond v. Allen, 2 Sumn. 387, 395; Allen v. Hammond, 11 Peters, 63.</p> <p>II. Because Chase had no such interest as he represented, and undertook to convey. Farrer v. Nightingal, 2 Esp. Ca. 639, (cited 2 Kent,' 469;) Hearn v. Tomlin, Peake’s Ca. 192; Thompson v. Miles, 1 Esp. Ca. 184; Hibbert v. Shee, 1 Camp. Ca. 113; Duffel v. Wilson, 1 Camp. Ca. 401; Belworth v. Hassel, 4 Camp. Ca. 140; Long v. Fletcher, 2 Eq. Ca. Abr. 5, pi. 4; Pasley v. Freeman, 3 T. R. 51, 57; Dutricht v. Melchor, 1 Dali, 428; Raymond v. Bearnard, 12 Johns. R. 274; Putnam v. Wescott, 19 Johns. R. 73.</p> <p>III. Because, if Chase had any assignable interest, there was an incumbrance upon it, which was not known to the complainants. Story’s Eq. Jur. $ 208; 2 Kent’s Com. 570; Sugden on Vend. 5, (2d Ed.) and p. xii. addendum; Tucker v. Woods, 12 Johns. R. 190; Junkins v. Simpson, 14 Maine R. 364, 367, 368.</p> <p>IV. Because the contract was entered into by the complainants under material mistake. 1 Fonbl. Eq. 120, note x; 2 Pow. on Cont. 196; 2 Kent’s Com. 441; 1 Pothier on Obi. (by Evans,) 17, 18; 1 Story’s Eq. Jur. § 140, 142, and authorities cited; Hepburn v. Dunlop, 1 Wheal. 197; Allen v. Hammond, LI Peters, 63, 71; Hammond v. Allen, 2 Sumn. 387; Daniel v. Mitchell, 1. Story R. 172 ; Roosevelt v. Fulton, 2 Cow. 129 ; Champlin v. Leighton, 18 Wend. 407.</p> <p>V. Because the contract was made under misrepresentation and concealment by the defendant, as to material and intrinsic circumstances, which the complainants had not equal means of knowing, and under a delusion created by the conduct and representations of the defendant. 3 Bl. Com. 165; 1 Madd. Ch. 262; 2 Kent Com. 482; 1 Story’s Eq. Jurisp. § 191 to 218, and authorities cited; Jeremy’s Eq. Jurisd. b. 3, p. 2, c. 3, § 1, and authorities cited; Small v. Atwood, 1 Younge, 407; Edwards v. M’Leary, 2 Swanst. 287; M’Ferran v. Taylor, 3 Cranch, 270; Laidlaw v. Organ, 2 Wheat. 178; Smith v. Richards, 3 Peters, 26; Cochran v. Cummings, 4 Dali. 250; Daniel v. Mitchell, 1 Story R. 172; liar ding v. Randall, 15 Maine R. 332 ; Irving v. Thomas, 18 Maine R. 418.</p> <p>As to the evidence upon this point, see Beal v. Thatcher, 3 Esp. 194; Hunter v. Gibson, 2 II. Bl. 187; Filmare v. Hood, 5 Bing. N. C. 97; Dobell v. Stevens, 5 B. & Cres. 623; Crocker v. Lewis, 3 Sumn. I ; Bottomley v. U. S. 1 Story R. 135 ; Bridge v. Eggleston, 14 Mass. R. 245; Somes v. Skinner, 16 Mass. II. 348; Foster v. Hall, 12 Pick. 89; Howe y. Reed, 3 Fairf. 515; Hawes v. Dingley, 17 Maine R. 341.</p> <p>VI. The fact that the price paid by the complainants was grossly beyond the value of the property, and that the bargain was unconscionable, supports these reasons. Jeremy’s Eq. Jur. 396, 483; 1 Fonbl. Eq. 122, note; 1 Madd. Ch. 268; Chit, on Contr. 224; 1 Story’s Eq. Jut1. §'246, 249, 331, and authorities cited; George v. Richardson, Gilmer’s (Va.) R. 231; Hough v. Hunt, 2 Ham. (Ohio) R. 502.</p> <p>Secondly. Considering the contract of May 6th, 1835, as an executory agreement, that the complainants are entitled to recover the consideration paid by them; see Long on Sales, 138, citing Giles v. Edwards, 7 T. R. 181; Skillern’s- Ex’rs v. May, 4 Cranch, 137; Bullock v. Beemis, 1 A. K. Marsh. 434.</p> <p>Thirdly. That the general language in the writing of January 16th, 1837, does not extend the meaning of that instrument, nor give it any effect beyond what is specified in it, and what the parties had in view at the time; see 1 Story’s Eq. Jur. <§> 145; 1 Evan’s Pothier, 59; Jeremy’s Eq. Jur. 546; Stokes v. Stokes, 1 Vent. 35; Lyman v. Clarke, 9 Mass. R. 225.</p> <p>And that this instrument was void for the reasons given in the argument; see Chit, on Cont. 222; Story’s Eq. Jur. § 217, and authorities cited; Wood v. Downes, 18 Ves. 120; Baugh v. Price, 1 Wils, 320, .and note; Canny. Cann, 1 P. Wms. 723; Roche v. O’Brien, 1 Ball & Beat. 330; Dunbar v. Tredennick, 2 Ball & B. 317; Murray v. Palmer, 2 Scho. & Lef. 486; Cockerell v. Cholmerly, 1 Russ & Myl. 425; Crowe v. Ballard, 3 Bro. C. C. 117 ; Gordon v. Gordon, 3 Swanst. 400; Hammond v. Allen. 2 Sumn. 387 ; M’Donald y. Neilson, 2 Cow. 141; Anderson v. Bacon, 1 A. K. Marsh. 51; Carr v. Callaghan, 3 Litt. 366; see also authorities cited ante, VI.</p> <p>Lastly. That the defendant has not answered .directly, under oath; see Story’s Eq. PI. § 664, 854; 1 Grant’s Ch. P. 122; Taylor v. Luther, 2 Sumn. 228; Jackson v. Webster, 6 Munf. 462.</p> <p>in support of their argument, cited the following authorities; — premising, however, that,in their view, this case involved, mainly, questions of fact rather than law.</p> <p>■ I. The answer, being responsive to the bill, must prevail. Walton v. Hobbs, 2 Atk. 19 ; Janson v. Ray,- 2 Atk. 140 ; Cooth v. Jackson, 6 Ves. 40; Cooky. Clayworth, 18 Ves. 12; Clark’s Ex’rs v. Vanreimsdyk, 9 Cranch. 153 ; Smith v. Brush, 1 Johns. Ch. R. 460 ; Daniel v. Mitchell fy ais. 1 Story’s R. 188; 2 Story’s Eq. Jur. <§> 1528.</p> <p>II. Representations made to strangers to the sale, in respect to the property sold, are not material unless they were communicated to the purchaser, so as to become the basis of the purchase. Crocker v. Lewis, 3 Sumn. 8; 1 Story’s Eq. Jur. <§> 191, 192; 1 Eonbl. Eq. B. 1, Ch. 2, § 8.</p> <p>We contend, that the facts involved in this case do not call for, or admit of the application of the principles involved in the numerous authorities cited by the plaintiffs. We have not supposed that there could be any doubts as to the law governing the case, when once the facts were ascertained. In this case, we contest the application of the principles contended for by the plaintiffs, — more than the principles themselves.</p> <p>An examination of the authorities cited by the plaintiffs, will show that their theory, as such, is well constructed ; ■ — ■ but the facts to support it are wanting.</p>

<p>Where the plaintifl'held a bond from a third person for the conveyance of a tract of land on the payment of six hundred dollars in six months, and sold and assigned to the defendant one half of the bond, and received the written promise of the latter to pay the plaintifl' $625,00; and the defendant, before the expiration of the six months, gave the plaintiff one half of the six hundred dollars, to be by him paid to the obligor, and the plaintiff promised to pay the same, as well as his own half, but neglected so to do, and kept the money, and the time expired, without payment; ii was held, that the plaintiff could not maintain an action to recover the $625,00.</p> <p>If a stipulation he for the performance of an act, which the party alone is competent to perform, and he is prevented by the act oí God from performing it, the obligation is discharged.</p>

Replevin for a horse. From a statement of facts by the parties, it appeared that on Jan. 16, 1839, the horse was the property of the plaintiff, and was on that day attached as his property by Cousens, a deputy sheriff, on a writ in favor of Pierce against Brown.

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

<p>Appeal from a decree of the Judge of Probate.</p> <p>Ebenezer Smith died April 1, 1828. On Sept. 22, 1831, Deborah Smith, his widow, was appointed guardian to Polly Smith, a minor daughter of said Ebenezer and Deborah, and at the Oct. Term of the S. J. Court, 1832, petitioned for license to sell the real estate of the minor to bo put at interest for her benefit, stating in her petition, that she was the widow of Ebenezer Smith, and “ guardian to Polly Smith, a minor aged ten years, and the only child and heir at law to the said Ebenezer Smith who died intestate,” and that at the time of his death he “ owned a small farm on which he resided.” License was granted, and on Jan. 26, 1833, the guardian sold all the right, title and interest, of the minor in the real estate, and for the consideration of $850, made a deed thereof to the purchaser wherein she recited her appointment as guardian, license and proceedings, and covenanted in this manner. “'And I do further in the capacity aforesaid, covenant with the said S. B. his heirs and assigns, that the premises are free of all incumbrances ; and that I will warrant, secure and defend the same to him, the said S. B. his heirs and assigns forever against the lawful claims and demands of all persons.” On March 19, 1833, Deborah Smith, the guardian, was married to Calvin Bumpus, the appellant; and on Sept. 17, 1833, Bumpus was appointed guardian to Polly Smith, the minor. On December 20, 1840, Ira Bean was married to the said Polly Smith. Afterwards Polly, the wife of Ira Bean died, and he took administration on her estate, the precise time not appearing, nor whether there was any order of notice before granting administration, and on Aug. 1842, made a petition to the Judge of Probate, requesting that the guardian should be cited into Court to settle his account, aiid that the balance thereof might be paid over to him, as administrator, or in his own right as the owner of the property by virtue of the marriage. Bumpus settled his account as guardian in November, 1842, the balance of which found due was $953,83. In this account Bumpus credited the whole amount of interest on the proceeds of the sale of the real estate, and charged, and was allowed one third part of the interest thus credited, as “ being the income of my wife’s part of proceeds of sale of the farm.” The decree of the Judge of Probate was, “ that the said Calvin Bumpus pay over the amount of said estate now remaining in his hands to said petitioner, administrator on said estate, to be administered upon pursuant to law.” Bumpus appealed to the Supreme Court of Probate, and filed the following reasons of appeal.</p> <p>1. Because the property and money in the hands and possession of said Calvin, being the balance of his guardianship account aforesaid, were never in the hands and possession of the said Polly in her lifetime, nor in the hands and possession of her said husband, nor any part thereof; nop were the same or any part thereof ever demanded of said Calvin by said Polly, or her said husband, or by any other person or persons for them or either of them, in the lifetime of said Polly; and that said Polly did not die possessed of the same or of any right or in» terest therein, so as to vest the same or any right thereto in him, the said Bean; and that the same in fact consisted of mere dioses in action, never reduced into possession by said Bean.</p> <p>2. Because the said Polly died on the day of July, A. D. 1841, under the age of twenty-one years, leaving no children or issue, nor father, nor brother, nor sister living at the time of her death, but that said Polly did leave a mother living at the time of her death, viz. Deborah Bumpus, the wife of said Calvin Bumpus, to whom, it is insisted, the property aforesaid did descend upon the death of said Polly, as her sole heir.</p> <p>3. Because said Polly died free from all debt; that said property is not wanted to pay any debt or charge whatsoever; and that if said Calvin were to pay the same over to said Bean, he insists, that said Bean would be bound by law to pay the same back to him, the said Calvin, as husband of the only heir to said Polly; and that to prevent circuity of action, said decree ought not to have passed; but that the decree in the premises should have been, that said Bean take nothing by his said petition.</p> <p>4. Because the decree aforesaid does not decide all the matters and things embraced in said petition, and especially does not decide to whom the absolute property in the balance of said guardianship account does lawfully belong.</p> <p>5. Because the administration aforesaid is void, it having been granted without notice to any person or persons; and without property, goods or estate, whereon the same could legally operate.</p> <p>6. Because said decree is erroneous and altogether against the law of the case.</p> <p>The arguments were in writing.</p> <p>contended that the decree of the Judge of Probate ought, to be reversed; and argued in support of the positions taken in the reasons of appeal.</p> <p>And he insisted that in no view of the case, should the whole balance be decreed to be paid over to the administrator, because a portion of it belonged to Mrs. Bumpus, being the proceeds of the sale of her right of dower in the premises; and because Mrs. Bumpus was entitled to another portion of it as an heir to a posthumous child, which he said was born a few days after the death of Ebenezer Smith, and lived a day, and then died. He cited Rev. Stat. c. 105, § 39 and 33.</p> <p>contended that the property in the hands of the guardian arose from the sale of the estate of the wife of the appellee, and came into the hands of the guardian. On her decease the guardian is bound to pay it over to her administrator, to be then distributed according to law. Had she never been married, the decree would still have been right.</p> <p>No notice is required to be given prior to the appointment of an administrator, when the person appointed is entitled to it by law; and the practice is universal, not to give notice in such cases.</p> <p>But on the marriage the whole personal property of the wife became vested in the husband. And if any part had not been reduced to possession if he survived her, he could as administrator of his wife collect it, and retain it for his own use. 2 Kent, 109, 113, 114, 115; Rev. Stat. c. 93, $ 15 and 16.</p> <p>He denied, that there was any posthumous child, and referred to the petition of the widow herself for the license to sell this estate, wherein she alleged that Polly was the only child and heir, and entitled to the estate.</p> <p>The right of Polly Smith, only, was sold in the real estate, and if the widow has not cut herself off from dower by the covenants in her deed, she may still have it assigned to her. The appellee is, however, willing that she should have secured to her one third part of the income of the property during her life.</p>

This was an action of trespass, quare clausum, and was originally commenced before a justice of the peace, where title to real estate in the defendant was pleaded in defence, and the case was removed, without trial, to the District Court pursuant to the provisions of Revised Statutes, c. 116, § 3, 4, 5.

<p>This action was replevin, and was originally commenced before a justice of the peace, was there tried, and appealed to the District Court. There was a trial in the Court last mentioned at the April Term, 1843, when a verdict was given for the plaintiff, and judgment was rendered thereon. The defendant claimed an appeal and entered into recognizance to prosecute, &c. He entered his appeal at the May Term of the S. J. Court, and the plaintiff there moved to dismiss the action, because no appeal was open to the defendant.</p> <p>cited and commented upon the act of amendment to Rev. Stat. p. 764, <§> 13; Rev. St. c. 116, <§> 1; Rev. St. c. 130, § 9.</p> <p>relied on Rev. St. c. 97, <§> 13, as conclusive in his favor.</p>

<p>The time when a mortgage of personal estate was received by the town cleric, must be noted both “ in the book” of records “ and on the mortgage,” ill order that it should “ be considered as recorded, when left,- as aforesaid, with the clerk,” under the provisions of Rev. St. c. 125, § 32 and 33.</p>

<p>Exceptions from the Middle District Court, Redington J. presiding.</p> <p>Assumpsit upon a promissory note, dated December 21, 1836, for $105,20, made by the defendant to the plaintiff, and payable on demand with interest. The defence set up was, a want or failure of consideration. It was proved, that the plaintiff was a licensed auctioneer, and as such sold at public auction an old schoolhouse for $100,00, and an old stove and some old furniture for $5,20, on a credit of six months. The defendant was the highest bidder, and the same were struck off to him. At the expiration of the six months the note in suit was given for the articles bid off.</p> <p>At the trial the plaintiff offered to prove by the testimony of witnesses, that for more than forty years prior to 1836, there had existed distinct shcool districts with well marked limits, and particularly that there was a district called the Parker district, whose limits were well understood throughout the town. This was objected to by the defendant, but admitted by the Court.</p> <p>It was proved that, more than forty years before the sale the town assigned one hundred dollars to each of the school districts, of which the Parker district was one, and that the school house was built with this money and money subscribed by individuals, and had been used as a school house for that district until recently before the sale.</p> <p>The facts are sufficiently stated in the opinion of the Court.</p> <p>The counsel for the defendant requested the Court to instruct the jury : 1. That a school district cannot prove its existence by reputation. 2. That the committee had no authority by the vote of the district to sell the house. 3. That a school district has no authority to sell its schoolhouse. 4. That inasmuch as the vote of the town, when purporting to divide the original No. 2, did in fact divide twro other districts, when the article in the warrant only authorized the division of No. 2, and therefore the south district was not legally constituted.</p> <p>The presiding Judge declined to give these instructions, but did instruct them, that if they believed the districts had been established, and their limits fixed and known from the early period named by the witnesses, and that the defendant, at the time of giving the note, understood the whole character of the sale, and possessed such mental powers as to render him capable of understanding his contracts, he must be chargeable in this action. The verdict was for the amount of the note and interest, and the defendant filed exceptions.</p> <p>This was continued nisi to be argued in writing, at the May Term, 1843; but no arguments have been received by the Reporter.</p>

<p>It is not necessary to call more than one of two subscribing witnesses to a deed, before other testimony in relation to its execution and delivery may be legally admitted.</p> <p>Delivery is essential to the operation of a deed as' a valid instrument, and without it, the grantee cannot be bound by any recitals or covenants contained therein; and he is a competent witness, to prove that it was delivered to a third person on a condition to be performed, and had never been delivered to him.</p> <p>It is not necessary that there should be an express declaration that a deed is delivered to a third person as an escrow to make it such. If the delivery be conditional, so as not to constitute any present obligation, it is an escrow, 1 and not a deed.</p> <p>Where an instrument has not been delivered to the grantee, but to a third person, to be delivered to him upon the performance of a condition, which has never been performed, it is but an escrow, and not a deed, and no title passes thereby to the grantee.</p>