Volume 23 — Maine Reports

<p>Writs of certiorari are grontablo only at the discretion of the Court; but this is a legal discretion, to be exorcised according to the rules of law.</p> <p>If the petitioner for the writ is aggrieved by a proceeding clearly erroneous, and to liis injury, he should not be denied a remedy; but if the error is merely matter of form, and the exception is purely technical, it would be no violation of essential rights, if the Court should withhold its interference.</p> <p>And if the error complained of exists, yet if it in nowise operates to the injury of the party seeking a remedy, although it may to some person who does not complain, the Court may, in such case, with entire propriety, and in the exercise of a sound legal discretion, refuse its aid.</p> <p>In laying out the road, the Commissioners must necessarily be more precise in designating the termini of the road laid out, than is required in a petition to have it laid out; and therefore, whore they may not appear identical on the record, they may be presumed to be the same, in the absence of proof to the contrary.</p> <p>The Stat. of 1832, c.42, (Rev. Slat, c.25, § 3,) requires that the County Commissioners should make a return with their doings, “ with an accurate plan or description of said highway,” to “the regular session of said County Commissioners’ Court, to be held next after such proceedings shall have been had and finished;” but does not require that the plan should be made and their proceedings finished and returned to the regular term next following their viewing and laying out the road.</p> <p>If the commissioners name the persons considered to have sustained damage by the location of the highway, and say that no other person has sustained damage thereby, it is no sufficient cause for granting a writ of certiorari', if it should be made to appear, that the road passed over lands of others not named.</p> <p>It is not necessary that it should appear of record, as preliminary to further proceedings, that the County Commissioners first adjudicated upon the ability of the petitioners to pay the expenses which might become payable by them. The provision of the statute on that subject is merely directory, and the omission does not render the proceedings of the commissioners in laying out the road void.</p> <p>It is sufficient, if the County Commissioners adjudge the road laid out to be, “ of convenience and, necessity,” omitting the word, “ common,” found in the statute preceding the word convenience.</p>

<p>The whole of the testimony given at the trial, before Tm-ney J. appears in the report of the caso. The substance of it is concisely stated in the opinion of the Court. A nonsuit was entered by consent, which was to be set aside and a default entered, if the Court, upon a view of the whole ease, should think the plaintiff was entitled to recover.</p> <p>said the money was collected by the commission merchants in New York and credited to the master and owners of the Orbit; that the captain had received his share, and thus severed it from that of the owner; that the defendant specially agreed to obtain this money from the commission merchants and pay it over to the. plaintiff; and that the defendant at the time knew all the facts.</p> <p>The money belonged to the plaintiff, and the defendant is liable on his promise to pay it over to him, when received.</p> <p>contended, that the money belonged wholly to the master ; that the half earnings of the vessel, was but the measure of the amount to be paid for the charter of her; that the claim of the plaintiff was merely a personal one on the master; and that the defendant was accountable for the money to the master only. It has been decided, that where the master takes the vessel, to be sailed on shares, that the freight money is the property of the master. Thompson v. Snow, 4 Greenl. 264.</p> <p>What the defendant said respecting paying over the money to the plaintiff, if it should come into his hands, must be understood merely, that he would pay it to the owner, if he had authority for it from the master. It could not. have been the expectation of either party, that the defendant was to pay to the plaintiff the money belonging to another, against his will; nor would the defendant be bound by such promise.</p>

This was a writ of entry. Both parties claimed under Christopher Benner; the demandants under a levy of an execution in their favor against him upon the premises, Feb. 24, 1841; and the tenant under a deed dated July 10, 1838, and recorded on the sixteenth of the same month. To avoid the effect of the prior deed to the tenant, the demandants undertook to show that the deed was fraudulent against them as creditors of Benner.

This appears to have been a bill in equity, claiming the right to redeem a mortgage made by one Hatch to Borland, one of the defendants. The only papers in the case are the copies of the bill and answer.

The action was on a poor debtor’s bond, dated Sept. 23, 1841, made in conformity with the provisions of Rev. St. c. 148. Two justices of the peace and of the quorum for the county of Kennebec certified under their hands, that Hall, the debtor and principal in the bond, had taken the oath prescribed in Rev. St. c. 148, § 28.

<p>This was a bill in equity, and was heard on the bill, as amended, and on the first and second answers. The substance of the bill and answers, as well as of the assignment referred to therein, appears in the opinion of the Court.</p> <p>contending among other grounds, that the plaintiffs were creditors, and that the defendant had, as assignee, received funds from the effects of the debtor, and had not paid over to the plaintiffs their proportion. These facts are sufficient to enable us to support our bill. Each party interested may proceed, and assert his rights. The refusal of one cannot prejudice the rights of the others. Besides, the others have received more than their proportion, and have no interest in calling money out of the hands of the as-signee. We cannot call it out of their hands, but the assignee may. If through misapprehension of his duties and the rights of others, the assignee has paid to the creditors more than they are entitled to, he may recover it back. Ward v. Lewis, 4 Pick. 518.</p> <p>But two objections are interposed to our recovery in the- answer. No others can be considered here, because new objections cannot for the first time be made in the argument.</p> <p>It was not necessary to have made Manley a party, as is asserted in the answer. He had no interest in the question. The demands against him were discharged, and they were to be paid in lull before the assignor could be entitled to any thing. The objection is dilatory in its character, and should not be allowed to defeat the bill.</p> <p>The other is, that although we signed and sealed the instrument, that we are not parties to it, merely because the amount was riot appended to the signature.</p> <p>Wo have been recognized by the defendant as a party, and he has paid us a part of our dividend. He cannot now say that we are not a party. The assignment law requires a distribution of the funds equally, in proportion to their demands, among all the creditors. The statement of the amount is only necessary, when but a single demand is claimed, where there is no security, and another kept back where others are liable, or there is security by mortgage. Where no sum is put down, the whole claim is discharged, whatever it may be, and a dividend is also to be paid on the sum actually due, be it little or much.</p> <p>The bill alleges that the assignment was duly made, and that is not denied in the answer. It is therefore to be considered as an established fact.</p> <p>contended that the assignment was void and wholly inoperative, because it is not conformable to the provisions of the statute of April 1, 1836, “concerning assignments.” This was not repealed by the Revised Statutes. That act requires, that affidavit should be made to it by the debtor, and that public notice should be given by publication in a newspaper. Neither of these provisions was complied with.</p> <p>The assignment requires that each creditor who should sign, should annex the amount of his demand to his signature. This was not done, and therefore there has been no signature of the plaintiffs in the mode required, and they are not parties to the assignment. The mere fact of the payment to them, regarding them as parties, can make no difference. If they had not put their names to the paper, it would not be pretended, that treating them as creditors under the assignment would make them such. As no amount was affixed to the signing, the assignee could not know how to apportion his dividend. 9 Pick. 410; 21 Pick. 239; 2 Mete. 93.</p> <p>Manley, the debtor, should have been made a party to the bill. The persons really interested are all the creditors and the debtor. They should liquidate the sums, and determine the mode of apportionment. The defendant has no means of knowing the justice of the claims set up.</p> <p>The plaintiffs cannot be permitted, as is now attempted by them, to sustain their bill, without showing performance on their part. 1 Fonb. Eq. 391; 4 T. It. 761 : 1 Salk. 112; 16 Maine. Rep. 92.</p>

This was an action of assumpsit, to recover back money paid for the purchase of one fourth part of several lots of land in Lexington in the County of Somerset, containing in the whole about eleven thousand acres.

<p>The action was brought by Thomas Longley, Benjamin Rackley and James Phillips against .the defendants, for the price of tw.o horses, purchased for the company and paid for by the plaintiffs, and for a sum of money paid to the Granite Bank for the defendants.</p> <p>The case came before the Court on a motion for a new trial, filed by the defendants, because the verdict for the plaintiffs was against evidence.</p> <p>Shepley J. who presided at the trial, reported the evidence, the ground assumed by the defendants at the trial, and his instructions to the jury. It is unnecessary to state it here. It seems that the plaintiffs had been running a stage from Portland to Augusta through Standish, and had obtained a contract to carry the mail; that it was.proposed to form an incorporated company who should take the property and run the stages ; that a corporation by the name of the Longley Stage Line Company was established by act of the legislature in February or March, 1838, having informally commenced conducting the business from the first of .February of that year; that the company organized on the 29th of March, 1838 ; and chose officers, and recorded their proceedings; that on the 4th of June* 1S38, they “concluded to rub out and begin anew/’ and they again organized under the act of incorporation, and chose a new set of officers, and commenced their records anew in a new book. The claim of the plaintiffs arose out of transactions between March 29th, and June 4th, 1838. It did not appear that either of the plaintiffs were at the meeting of June 4th but each of them afterwards subscribed for some shares. Edward Little had not been a petitioner or stockholder until soon after June 4th, when he subscribed for one share, but at the time of the trial had become the proprietor of the principal portion of the stock.</p> <p>The counsel for the defendants contended, “ that the plaintiffs, being a part of those who on June 4, 1838, consented to organize anew on that day and to have the corporation commence its existence then, they could not afterwards themselves set up a claim against the company for the items named in the writ.”</p> <p>The presiding Judge on this point instructed the jury, that if the plaintiffs, on June 4, 1838, did understandingly, knowing the effect of what was done and voluntarily consenting thereto, intend to surrender their claims upon the company, they would find for the defendants; but that if they came to the conclusion, that the plaintiffs did not intend to surrender, discharge, or affect any of their claims against the corporation, by consenting to a new organization of it, they would find their verdict for the plaintiffs.</p> <p>argued in support of the grounds of de-fence taken at the trial; and cited, 2 Mete. 422; Sugden Vend. & Pur. 122 and cases there cited.</p>

Currier was indicted in the District Court under the statute to prevent gaming, Rev. St. c. 35, $ 7.

<p>The power over mortgages, given by statute to the Supreme Judicial Court, extends only to cases of foreclosure and redemption.</p> <p>If land be conveyed, and at the same time mortgaged back, each conveyance being with covenants of warranty, and the mortgage bo assigned; and after the assignment, the mortgagor acquires a title to the same premises under a sale for taxes, assessed upon the land prior to such conveyances, the tax title enures instantly to the benefit of the assignee of the mortgage ; and the remedy of the mortgagor is on his grantor.</p> <p>But if one afterwards merely contracts to purchase a portion of the mortgaged premises of one of the several mortgagors, it does not prevent him from acquiring a title under the tax sale, and holding it for his own benefit.</p> <p>The principle is well known in equity jurisprudence, that equity, regards what is contracted to be done, as done ; but it means no more, than that a party to a contract, or his legal representatives, may insist upon being placed in a situation equally as advantageous as if the contract had been fulfilled.</p> <p>To obtain relief in a court of equity, fraud must be clearly and distinctly made out. It cannot be inferred from circumstances of an equivocal tendency ; or from a deficiency of mere neighborly kindness.</p>

Writ of entry demanding a dwellinghouse and small tract of land in Wales, in this County. Robert Brinley originally owned a small farm, of which the demanded premises are a part, and on Jan. 2, 1819, conveyed the same to John Given, husband of the tenant, who at the same time gave back a mortgage to secure the whole or part of the purchase money, both which deeds were immediately recorded.

The plaintiffs brought this writ of scire facias for the purpose of obtaining a judgment and execution against the defendant for the amount of a judgment recovered by them against Elwell & Pray, and against the goods, effects and credits of the debtors in the hands of the defendant. On March 7, 1835, the plaintiffs brought an action against Elwell & Pray in the Court of Common Pleas, and summoned Bachelder as trustee.

Assumpsit for money paid for the defendants, C. Keene and W. C. Weston. Weston was defaulted, and Keene defended.

<p>Assumpsit by the plaintiff as the bearer and owner of a note, dated April 25, 1837, for $25,00, payable in two years and interest after due, given by the defendant to Charles Robinson, or bearer. The defendant introduced in evidence a paper signed by the plaintiff, of which a copy follows. “July 12, 1837. This day received of Charles Robinson five notes of hand against Joseph Robinson. These notes are dated April 25, 1837, and to be paid to Charles Robinson or bearer, one of $26,50, to be paid in a year from its date and interest, the other four notes are $25,00 each, without interest, and to be paid yearly after the above. The first note is to be applied on one due me, signed by John Glidden and Charles Robinson, that is due me, some days before this demand is out. I have received these notes only as collateral security.” The Glidden note was for $150,00, and was paid before this suit was commenced. The plaintiff then held three notes of $200 each, against Charles Robinson, secured by a mortgage of land, dated April 15, 1837, payable in two, three and four years. The counsel for the defendant offered to prove by parol, that the notes were put into the hands of the plaintiff, for the sole purpose of securing the payment of the Glidden note. Siiep-ley J. presiding at the trial, ruled that the evidence was inadmissible.</p> <p>The counsel for the plaintiff alleged, that the land was wholly insufficient to secure the notes, and claimed that the plaintiff had the right to retain the note in suit for security of the notes described in the mortgage, and could recover in this suit. It did not appear that the plaintiff had any other demands against Charles Robinson, than those mentioned. The presiding Judge, ruled, that by the terms of the receipt, the plaintiff might retain the notes as security for any demands which the plaintiff might have against Charles Robinson at the date thereof, not otherwise secured; but that he had no right to retain or appropriate the same to secure him against any loss upon demands he had against said Charles Robinson secured by mortgage.</p> <p>The plaintiff became nonsuit; and if the ruling of the Judge was incorrect, the nonsuit was to be taken off and the case stand for trial.</p> <p>in his argument, said that when the plaintiff received the five notes and gave the receipt, he held four notes against Charles Robinson, one secured by the name of Glidden, as surety, and the other three secured by a mortgage of certain real estate. The five notes were received as collateral security. If nothing further had been said, the plaintiff would most certainly have had the right to hold the notes for the payment of all demands he then- had against Charles Robinson. The appropriation of one of them towards the payment of the Glidden note, affected that alone, and left the others as additional security to the notes secured by the mortgage. The last ruling of the Judge, then, was erroneous.</p> <p>The terms used in an agreement shall prevail according -to their most comprehensive popular sense. Chitty on Contracts, (Springfield Ed. of 1839,) 66.</p> <p>contended that the ruling of the Judge on the last point was correct. The Glid-den note had no connexion with the notes secured by the mortgage. The five notes, mentioned in the receipt, did not amount to as much as the Glidden note, and the receipt mentions that note only, and has reference to that alone. The first note was to be taken in part payment, and the other four as collateral to the Glidden note. Glidden was not a surety, as the counsel for the plaintiff seems to suppose, but a joint note of the two. The receipt has no reference to the separate debt of Robinson, which, for any thing appearing in the case, was abundantly secured by the mortgage. As the note to which that in suit was collateral was paid before this suit was commenced, all right of the plaintiff to this note, had ceased, and he cannot maintain his action.</p>

<p>When a service has been made thereon, the attorney who made the writ has no authority to alter it without leave of Court.</p> <p>But if an alteration of a writ be made, after a service of it by attachment of property and giving a summons, this does not excuse the officer from performance of the duty of keeping the property safely, that it may be applied to satisfy the judgment obtained by the plaintiff, or returned to the defendant.</p> <p>The officer serving a writ is not a party to the judgment rendered in the suit, and where there is no fraud, he cannot impeach it collaterally.</p> <p>Where an officer returns on a writ an attachment of certain goods only, without fixing their value, the presumption of law is, in the absence of all other testimony, that they were of the value commanded to be attached.</p>

The action was trespass, quare clausum, for entering upon the pass way of the plaintiffs, tearing down their railing, and “ encumbering and impeding their right of passage.” At the trial, before Shepley J. it appeared that a partition of certain real estate was made in 1837, by which land was set off to John Goodridge, whose rights the defendants have, which included within its boundaries the premises where the acts were done, complained of as trespasses; and that at the…

The action was trespass, de bonis asportatis, for goods attached and taken by E. C. Blake, a deputy of the defendant, on Feb. 1, 1842. as the property of Michael Welcome, on a writ against him in favor of Manning & Glover.

<p>There are general and particular customs, and those relating to a particular trade or business. General customs are such, as prevail throughout a country, and become the law of that country; and their existence is to be determined by the Court. Particular customs are such, as prevail in some county, city, town, parish, or place; their existence is to be determined by a jury upon proof; the Court may overrule such customs, if they be against natural reason; and when proved and allowed, they are binding upon all over whom they operate.</p> <p>There are «usages also showing a particular mode, or. amount of compensation in a particular business or employment; but these do not necessarily , bind all, and can never be allowed to operate against an express contract.</p> <p>It is competent to admit testimony to prove the usual compensation claimed and paid, for the purpose of enabling a jury to determine what is a reasonable compensation, in the absence of a special contract, in cases of the like kind, such as the usual charge for wharfage, for freight or carriage of goods, for the services of commission merchants, auctioneers, of the various classes of mechanics, of physicians and of attorneys.</p> <p>But there must be some proof, that the contract of employment had reference to the usage, or proof arising out of the position of the parties, their knowledge of the course of business, their knowledge of the usage, or other circumstances, from which it can be inferred or presumed, that they had reference to it, or it will not necessarily be binding upon them.</p> <p>When a usage, regulating the compensation to be paid for a particular description of personal services, has been proved, whether the usage be, or be not reasonable, is for the decision of the Court and not of the jury. The true question for the consideration of the jury, in such case, is, whether the usage was so generally known and acted upon that the parties, from that and the other facts and circumstances proved, must be presumed to have had reference to it for the compensation to be paid; as in such case it would become, as it were, a part of their agreement, and binding upon them.</p> <p>And if there be such error of the District Judge, this Court cannot enter upon the merits of the case, under a bill of exceptions, and decline granting a new trial, on the ground that the usage proved was an unreasonable one.</p>

This was a bill in equity, and was heard on the bill and answer. On Nov. 18, 1836, Wheeler & Perkins conveyed a steam sawmill to the defendant and Harlow Spaulding.

The action was debt against Nathan Nason and Read Jacobs, commenced April 9, 1842, upon a poor debtor’s six months bond, dated Oct. 8, 1841, in the penal sum of $69,46, given by Nason, as principal, and by Jacobs, as surety, to procure the release of the former from an arrest, that day made upon an execution against him in favor of the plaintiff, issued on a judgment, recovered in 1841, for $28,19 damage, $6,36 costs, 15 cents for execution, $1,69 officer’s fees and interest.

<p>If neither of the alternatives of the condition of a poor debtor’s bond be performed within the six months, the surety is not discharged from his liability by the principal debtor’s filing his petition in bankruptcy before the expiration of the six months, and, after that time, obtaining his certificate of discharge as a bankrupt, under the bankrupt law of the United States.</p>

<p>The inhabitants of the town wherein the offence is alleged to have been committed are competent witnesses to sustain the prosecution, on the trial of an indictment against an inhabitant of the same town for being a common seller of wine, brandy, rum, and other strong liquors without license, contrary to the provisions of Rev. St. c. 26, § 17; although the town would bo entitled to the penalty incurred.</p> <p>The Court is under no legal obligation to quash a defective indictment on motion before the trial is concluded, as the party indicted has his remedy by a demurrer, or by a motion in arrest of judgment.</p>

Assumpsit for the support of the wife of Simeon Lamkin, a pauper of the town of Jay, from May I, 1839 to May 1, 1840. The facts in the case are stated at the commencement of the opinion of the Court.

Exceptions from the Western District Court, Goodf.now J. presiding. Trespass quare clausum. The defendant justified entering on tho premises by order of a highway surveyor, and alleged that a legal highway was laid out over the same by the town of Jay.

<p>By the Statute of 1821, c. 118, § 9, tlie inhabitants of a town, at a legal meeting called for that purpose, had power to alter or discontinue a town way, without any previous action of the selectmen thereon.</p> <p>Where, in a rule of reference, entered into before a justice of the peace, the whole matter in controversy is submitted to the referees, “ to be decided according to the principies of law," the law and the fact are equally submitted to their decision; and that clause does not prevent their being the final judges of both, or require them to report the facts and their conclusions upon them to the Court for its revision.</p>

This was a bill in equity. The facts are stated in the opinion of the Court. contended that the Court had power to grant relief in this case. The power is given in the clause in relation to frauds. The defendant cannot avail himself of his own fraudulent act to obtain the property of the plaintiffs. Cases are taken out of the operation of the statute of frauds on the ground of a part performance of the contract.

At the trial before Whitman C. J., after both parties had introduced their evidence, objections to the admission thereof having been made on each side, a nonsuit was entered, under an agreement of the parties, that the nonsuit should be set aside, and a default entered, if in the opinion of the Court, the plaintiff was entitled to recover upon all the legal testimony in the case, the Court being authorized to draw such inferences from the evidence, as a jury might do legally.

The defendant demurred generally to the following declaration. “ In a plea that to the said Berry the said Stinson render the sum of one hundred dollars, which the said Stinson owes and unjustly detains from the said Berry, for that the said Stinson, on the day of the purchase of this writ, being treasurer of said town for the year 1842, duly elected and qualified unto said office by the inhabitants of said town, did then and there neglect, and ever since his election and…

<p>In an action on a poor debtor bond, where the certificate, or record, of persons acting as justices of the peace and of the quorum, stating that they had administered the poor debtor’s oath to the debtor, is introduced in evidence by the defendants, it is competent for the plaintiff to prove by parol testimony that such persons had no jurisdiction of the subject.</p> <p>Two justices of the peace and of the quorum must appear at the time and place fixed in the notice from the debtor to the creditor, for the purpose of acting in the matter, before any legal act can be done. If therefore but one appear, he has no power under the statute to adjourn until a subsequent time.</p> <p>And if the attorney of the creditor should consent to such adjournment by one-justice, not being conformable to the statute provisions, it would still be invalid.</p>

Exceptions from the Muidle District Court, Redington J. presiding. Assumpsit to recover the sum of $22,50, alleged to be due to him for the labor and services of his servant, Saniuel Johnson, performed for the defendants, and at their request. To show that he was entitled to the services of Samuel Johnson, the plaintiff introduced in evidence a paper of this tenor. “ Bloomfield, Nov. 30, 1839.

Assumpsit. The writ is dated May 29, 1841. With the general issue, the statute of limitations is pleaded. Prior to 1816 Oliver Crosby, the plaintiff, and Jesse Varney had been partners in business in Dover in the State of New Hampshire, and on July 25, 1816, they, severally, as principals, and Mann and Chandler, as sureties, made their note to the Strafford Bank, located at Dover, for one thousand dollars, and it was discounted by the bank.

This case was argued in 1841, when the present Reporter did not hold the office, and no papers, except the opinion, came into his hands. The facts, however, sufficiently appear in the opinion of the Court.

Writ of entry. Statement of facts by the parties. From this statement, it appeared, that both parties claim under Joel Hills.

This was a bill in equity against Lendall M. Gray and Edward Gray. The plaintiff is Benjamin Shaw of Newport. Another man of the same name, Benjamin Shaw of Orono, on Sept. 16, 1826, mortgaged certain lands to Sanger to secure the payment of a debt, who on Aug. 27, 1827, took possession under his mortgage for condition broken.

The bill in equity of the plaintiffs alleges, that on January 30, 1819, a lot of land in No. 2, now Greenbush, in the State of Maine, was the ptoperty of the Commonwealth of Massachusetts, and that on that day the legislature, by a resolve, authorized Lucy Nowell, whose husband had occupied the land in his lifetime, and her children, to occupy the lot twenty years, rent free; that the commissioners of the land office were by the same resolve empowered to convey in fee the…

Assumpsit upon a note dated April 26, 1839, for $>283,00, given by the defendants to F. & I. S. Whitman, and indorsed to the plaintiff. The suit was for the benefit of the payees.

<p>In an action by an indorsee of a promissory note, indorsed, before it fell due “ without recourse,” where the defence set up was, that the note was obtained by the fraudulent representations of the plaintiff, or that it was given in consequence of a mutual mistake in the value and character of the land for which the note was given, it was held, that a verdict for the plaintiff should not be set aside for error in the instructions to the jury, when they were instructed to find for the defendants, if there was fraud between the plaintiff and the defendants, inducing the latter to make the purchase and give the note in question ; or if there was fraud between the vendors and the defendants in obtaining the note declared on of which the plaintiff was conusant; or if there was a mistake which went to the essence of the contract, and the plaintiff procured such contract to be made, or was instrumental in making it.</p>

Writ oe entry. The following is a copy of the contract between the demandant and the tenant, refered to in the opinion of the Court. “ Memorandum of an agreement between John Kelley, on the one part, and Charles G. Kelley, on the other.

This case came before the Court on exceptions, on the part pf the defendant, to the ruling of Tenney J. presiding at the trial, permitting the action to proceed in the name of the plaintiff on the record, after he had been decreed to be a bankrupt, and an assignee had been appointed. The facts and grounds of defence appear in the opinion of . the Court. and cited 1 Chitty’s PI. (7th Ed.) 24, 25, 80, 81; 7 Taunt. 59;- Eden on Bankr. 346, 347 ; 15 East, 627 ; 2 Johns.

<p>This case was to have been argued in writing, but no arguments have been furnished.</p>

<p>This case came before the Court on exceptions, and on a motion for a new trial, because the verdict was against the evidence.</p> <p>' The last provision in the permit to cut timber from the agent of the proprietors to Bartlett was this. “ And all the timber cut on said land shall be and remain the property and subject to the control of said Stackpole, until one half of the amount of the stumpage for the lumber, cut under this permit, shall have been paid, which shall be on or before July 1, 1835, and an indorsed note or draft, satisfactory to said Stackpole, payable September 1, 1835, for the other half, shall have been given, and all the other conditions contained in this permit shall have been duly and faithfully performed.” The whole evidence at the trial, and papers read, amounting to fifty pages, appear in the exceptions. It is believed, that the questions of law will be sufficiently understood from what appear in the instructions to the jury, and in the opinion of the Court.</p> <p>After the evidence at the trial, Tenney J. presiding, was before the jury, the exceptions state that the defendants contended, that there was evidence to go to the jury to prove that the plaintiff had surrendered the logs to the Messrs. Stevens and abandoned them entirely, before the defendants took them. But the Court ruled that there was not sufficient evidence to authorize a verdict against the plaintiff on this point, and declined to allow the question to be argued to the jury, and instructed the jury for the purpose of this trial, that they would not regard the logs as the property of the Messrs. Stevens.</p> <p>The defendants further contended that if the jury should find that the Messrs. Stevens’ claim on the logs was more than they were worth, with the other evidence in the case touching the right of Messrs Stevens, that then the plaintiff could recover nothing or only nominal damages. But the Court instructed the jury on this point, that the plaintiff was entitled to recover the full value of the logs, if any thing.</p> <p>The defendants further contended, that it was a question of fact for the jury, whether the title of Bines to the logs had been lost before he sold them to the defendants; and the Court so instructed the jury, and further instructed them, that if the plaintiff once had possession of the logs, claiming them, and the defendants took and made use of them afterwards, the burthen of proof was on the defendants to show title in themselves, and that if Bines’ testimony was believed by them, it proved that he had parted with all his title before he sold to defendants, that nothing passed to defendants by any of the transfers put into the case, and the plaintiff was entitled to recover the value of the logs, but that the credibility and correctness of his testimony was for their consideration, in con-nexion with the other testimony in the case, tending to impeach or corroborate it, and that this was the great point in the case for their consideration.</p> <p>The defendants further contended, that if Bines had not parted with his title before his sale to the defendants, that if his title was' transferred to the defendants, the plaintiff could not maintain trespass against the defendants; and the Court so instructed the jury.</p> <p>On the evidence the plaintiff contended:</p> <p>1. That Bartlett, by taking a negotiable draft and giving an absolute receipt for the stumpage, forever discharged it. .</p> <p>2. That if Bartlett did not absolutely relinquish his lien on the logs, when he took said draft, he was bound in a reasonable time after said Stevens refused to accept said draft to elect whether to retain said draft, or his lien on the logs, and to notify I. I. Stevens of said election, and return said draft to him.</p> <p>3. That by retaining said draft, and commencing an action upon it, he relinquished his lien.</p> <p>4. That he relinquished said lien by attaching these very logs and other property of Isaac J: Stevens.</p> <p>5. That Bines by taking an assignment of this draft, even if he did not take it in payment of his stumpage, with a knowledge that it was taken by Bartlett for the stumpage and of the course that Bartlett had taken in relation to it, thereby ratified Bartlett’s acts and became bound by them, and thus relinquished and lost his own lien.</p> <p>6. That Bines by prosecuting the action on the draft to judgment, and taking execution, which still remains unpaid and has never been released or returned to I. J. Stevens, relinquished, or lost, their lien (if they then had any) on said logs.</p> <p>7. That the permit gave no power to Bines to sell these logs for stumpage without judicial sanction.</p> <p>■8. That if the permit gave power to sell, the sale must have been made in good faith, free from suspicious circumstances, and that Bines’ intention to become a purchaser, and the hasty manner in which the sale was made, and the low price, and the immediate sale by Bines & Griffin at an advance, rendered the sale invalid.</p> <p>9. That if Rimes agreed with Griffin before the sale, to be equally interested with him and stand equally with him after-wards. the sale was void.</p> <p>10. If this agreement was not made till immediately after the sale, in the manner stated by Griffin, still the sale was void.</p> <p>11. That the assignment of the permit by Comstock to I. J. Stevens (fo Co. did not convey any interest in these logs, or if any interest, only a pledge, and that was void for want of delivery ; bonce the sale to the defendants was void for want of a demand of payment of the plaintiff, and notice to him of the intended sale.</p> <p>12. That if the Messrs. Stevens had an interest, still, the plaintiff being the general owner, such demand on him and notice to him were necessary.</p> <p>13. That the appearance of Mr. Prentiss at the sale, on behalf of Mr. Stevens, was not sufficient to show that he had authority from Stevens to appear, or that he was notified seasonably by Hines of the intended sale.</p> <p>14. The assignment by the proprietors to ibices, conveyed only the sfrumpaga and not any interest in the logs.</p> <p>15. That the amount of the stumpage on these logs, according to the Gtackpole permit, was modi less than the amount for which the logs were sold, and that the plaintiff at any rate was entitled to recover for a part of the logs.</p> <p>16. That Riucs abandoned Ms possession to Wadleigh, and never took possession afterwards, and thereby lost the claim on the logs.</p> <p>IT. That the spruce logs were not conveyed by the auction sale, and that the defendants were liable for them.</p> <p>The presiding Judge sustained these positions so far as appears in the following instructions to the jury and no farther. That by the Glaekpole permit the proprietors retained the ownership and control of the logs, subject to be defeated by complying with the terms of the contract; that if the stump-age was not paid so as to give a right in the other contracting party to control lire logs, the proprietors would become the absolute owners of the logs, after the failure of the other party to comply ; that their assignment to Riñes gave him the same control over the logs which they had ; that if Riñes had not before done any thing to relinquish his claim, he could dispose of the logs as he thought proper, either at public or private sale; that it was no matter if the logs were struck off too soon, as the conduct of Riñes in relation to the sale and his interest in it, would not vitiate the sale; that it was for the plaintiff, as between him and Riñes, to show that Riñes had received payment of the stumpage; that if Bartlett took the draft in payment of the stumpage this did not injure Riñes, unless he took it also^ in payment; that Bartlett’s retaining the draft and commencing an action and attaching the logs and other property, and Riñes’ taking an assignment of the draft and action, with the knowledge of these facts, and continuing to prosecute the action, did not destroy Riñes’ claim on the logs, if he in fact took the assignment as collateral; but were proper circumstances for the jury to consider in determining whether he received the draft in payment or as collateral; that if Riñes received the draft in discharge of the stumpage, his claim on the logs could not be afterwards resumed as against the plaintiff without his consent; that they must determine, from the testimony whether Riñes received the draft in payment ; and that as the assignment did not express the consideration, that if the testimony of Riñes was out of the case, the plaintiff could not recover, provided the defendants had shown to the satisfaction of the jury, that they had acquired the right which Riñes derived from the proprietors.</p> <p>The verdict was for the defendants.</p> <p>To the rejection of testimony offered by the plaintiff, to the admission of testimony objected to by the plaintiff, to the overruling^ of the plaintiff’s positions ; and to the instructions of the Court to the jury, the plaintiff excepted.</p> <p>furnished a written argument of more than sixty pages. An abridgment could not do it justice, and the whole cannot be published. He cited, in support of the positions taken, 2 Greenl. 121 ; 2 Dallas, 63 ; 16 Yes. 276; 9 Greenl. 125 ; 5 Pick. 46; Story on Bailm. 241; 2 Kent, 638; 21 Pick. 230; Montagu on Liens, 215; 1 Mason, 212 ; 1 Johns. R. 34 ; 10 Johns R. 104 ; 15 Johns. R. 247 ; 5 Pick. 178 ; 8 Mass. R. 150; 20 Pick. 399 ; 10 Mass R. 155; 4 Mass. R. 620 ; 4 Mass. R. 443; 3 Pick. 38, 365 ; 8 Pick. 408 ; 4 Pick. 220 ; 2 Kent, 614 ; 12 Mass. R. 60; 1 Mete. 39 ; Com. on Con. 23 ; 2 Mete. 260; 6 Verm. R. 448; 7 Pick. 52; Story on Bailm. 209, 213; Story’s Eq. 317, 319; Caines’ Cas. in Er. 183 ; 2 Kent, 577; 1 Pow. on Mori. 3, 4 ; 4 Kent, 137 ; 6 Mass. R. 424 ; 15 Mass. R. 480; 1 P. Wms. 261; 1 Brown, 176; 3 East, 258; l Johns. R. 290; 4 Johns. R. 475; 1 Stark. Ev. 199; Phil. Ev. 39; 3 Greenl. 165 ; Greenl. Ev. 563 ; 2 Greenl. 64; Bougl. 56 ; 3 East, 366; 14 Johns. R. 82; 1 Marsh. 526; 2 Pick. 20; Greenl. Ev. 449; 4 Mass. R. 488; 2 Kent, 585; Story on Bailm. 238 ; 5 Bac. Abr. 165 ; 4 Kent, 159 ; 8 Pick. 73.</p> <p>furnished concise written arguments, citing 11 Mass. R. 27 ; 16 Maine R. 478; 6 Greenl. 200; 7 Greenl. 386 ; 18 Maine R. 357; 4 Mass. R. 683 ; 3 Fairf. 201; 8 Greenl. 30; 8 Pick. 51.</p>

<p>Assumpsit on a note given by the defendants to F. & I. S. Whitman, dated April 26, 1839, for $283,00, payable in six months, and indorsed to the plaintiff. There was another suit between the same parties, brought afterwards on a note similar in all respects, save that it was made payable in eight months. They were both argued at the same time, as one case, on exceptions to the rulings and instructions of Tenney J. presiding at the trials, and on motions to set aside the verdicts as against evidence.</p> <p>The defendants in a brief statement, alleged that the notes were given for boards, bought within the county of Penobscot to be shipped beyond the limits of the county, and not surveyed according to the provisions of the statute regulating the survey of lumber in that county, and that there was a war-ianfy at the sale, that the boards were merchantable, when in fact they were not. It was agreed, that the actions should be subject to the same defence, as if F. & I. S. Whitman were the plaintiffs. The sale of the lumber was made by an agent, Dexter E. Wadleigb. The defendants introduced in evidence the bill of sale of the lumber, of which a copy follows.</p> <p>“Messrs. Freese & Chadwick bought of F. & I. S. Whitman, Bangor, April 26, 1839, the following mentioned lots of lumber, viz. two lots, at the mouth of the Pushaw stream, boards, also certain lots of boards and dimension stuff now at and about the mills at Pushaw; being the same lots shown to Mr. Chadwick by Dexter E. Wadleigh in the presence of Warren Brown, April 25, 1839, estimated to be two hundred thousand, more or less; also, seven thousand of clapboards under the mill, also thirty thousand of laths, all for the sum of eight hundred and fifty dollars per agreement. Received payment in notes of four, six and eight months.</p> <p>“ F. & J. S. Whitman.”</p> <p>Among the witnesses called was one Oakes who testified, that he was a deputy surveyor of lumber in the county of Pe-nobscot, and as such surveyed a quantity of this lumber, and made his return thereof, according to the provisions of the statute, to the Surveyor General, where it was recorded. He was inquired of respecting the quality of this lumber. The plaintiff objected to the admission of this testimony on the ground that there was better evidence in writing. The Judge rejected the testimony. The surveyor’s books were then introduced, and the same witness was asked by the defendants, whether a large portion of the boards surveyed by him were not of a quality inferior to what appeared on the survey-book. The plaintiff objected, and the Judge ruled that the testimony was inadmissible, and that the surveyor could not contradict his own survey of those boards.</p> <p>The objections made, at the trial, to the admission of Wad-leigh and I. S. Whitman as witnesses, and the facts and rulings in relation thereto, are stated in the opinion of the Court.</p> <p>The general instructions to the jury, appearing in the exceptions, relate exclusively to the question of fraud in the sale, one ground of defence set up at the trial. As no objections were made to their correctness in the argument, they are not given. The verdict was for the plaintiff, and the defendant filed exceptions.</p> <p>Under the motion for a new trial, it was contended, that the bill of sale was a mere bill of parcels, and that parol evidence was admissible to show a warranty ; and that the verdict was against evidence on that ground. The lumber sold was described in the bill of sale as boards, which amounts to a warranty, that they were such and of fair quality. 13 Mass. It. 139; 11 Pick. 97; 2 Pick. 214; 2 Rawle, 23; 12 Wend. 566.</p> <p>There was an implied warranty in law, that the lumber was of a merchantable quality. The sellers were the manufacturers of the articles sold. 1 Stark. Ev. 384; 2 Kent, 483 ; 2 Hill. 606 ; 6 Taunt. 327 ; 5 Bingh. 533 ; 4 B. & Cr. 108.</p> <p>It was also contended that the rulings of the Judge were erroneous, both in the admission and in the exclusion of the testimony.</p> <p>He said no points of law were open to examination, but such as were made in the exceptions; and contended that the rulings of the Judge, who presided at the trial, were correct in overruling the objections made on the part of the defendants to the admission of the plaintiff’s witnesses, and in rejecting the introduction of parol evidence to contradict the survey made by the witness, which had been returned and recorded according to the provisions of the statute regulating the survey of lumber in this county.</p> <p>He contended, however, that if new points of law could now be made, under a motion for a new trial, the positions taken for the defendants could not aid them. There is no warranty in the bill of sale; and on the question of warranty, no parol evidence was admissible of what was said before or at the time of sale. Besides the defences of fraud and warranty cannot be set up together. They are inconsistent.</p>

<p>Writ of entry. At the trial, before Tenney J. after the evidence was before the jury, a nonsuit was ordered, by consent of parties, on the ground, that by the true construction of the deed, Hamlin to Sheppard, the premises in controversy belonged to the tenants. If that construction was erroneous, the nonsuit was to be set aside, and the action stand for trial. The material parts of the deeds are given in the opinion of the Court. A plan was exhibited, and remarks made in reference to it at the argument, but none appears with the papers.</p> <p>and in support of his views, cited 11 Pick. 193; Sheph. Touch. 87; 3 Pick. 272 ; 7 Greenl. 220; 20 Maine R. 61; 5 Greenl. 482; 5 Mason, 410.</p> <p>citing 17 Maine R. 123; 1 Har. & Me. H. 139; 4 Monr. 32; 1 Met. & P. Dig. 479; 5 N. H. R. 450 ; 7 Wheat. 10 ; 3 Sumn. 170; 8 Greenl. 85; 6 Cowen, 544, note; 3 Kent, 480; 20 Wend. 149; 7 Cowen, 723; 11 Conn. R. 163; 13 Pick. 145; 5 Pick. 135; 3 Fairf. 326; 3 Greenl. 398; 7 Verm. R. 511; 5 Greenl. 4S6.</p>

<p>A conveyance of personal propety, made without consideration, and for the purpose of defrauding creditors, is void as well against subsequent as prior creditors of the vendor.</p> <p>Where it was agreed between the parties, that one should take certain furniture in a house in payment of a pro-existing debt, the price to be determined by the appraisement of certain men, who ascertained the value in the presence of the parties, and the vendor left the premises and the vendee immediately entered into the occupation thereof and took actual possession of the furniture, this is a sufficient sale and delivery, although no receipt is given for the furniture, or charge or credit on the books, and no formal delivery is made.</p>

<p>John Bowley was once the undisputed owner of the land demanded in the present action, and both parties claimed under him.</p> <p>On July 20, 1835, Bowley, by his deed of that date, conveyed the premises to Solomon Moulton, and at the same time Moulton made a mortgage thereof back to secure the purchase money. The deed to Moulton was recorded on June 19, 1837, and the mortgage to Bowley, Oct. 28, 1836. This mortgage was assigned to the demandant on Oct. 30, 1839, and the assignment was recorded on the next day. Bowley, by his bill of sale, under seal, bearing date July 15, 1835, conveyed to Moulton, “ one half of the herbage and crops of all kinds now standing and growing on the land conveyed by me to said Moulton, by deed of even date with this writing,” and the materials for erecting a house lying upon the premises, “ the said Moulton to furnish at his own expense one man to help cut and make the hay the present season.” At the time the deed and mortgage were made, Bowley was in the possession and occupation of the land, and so continued until long after the mortgage thereof to Eli Hoskins.</p> <p>Moulton made another mortgage of the same premises to Eli Hoskins on Oct. 29, 1835, which was recorded on the same day. On March 24, 1841, Eli Hoskins made an assignment of this last mortgage to Elisha D. Hoskins, the tenant, but the assignment was not recorded until the day of the trial.</p> <p>At the trial, before Tenney .T. the demandant was permitted by the presiding Judge, although objection was made thereto by the tenant, to prove the confession of Eli Hoskins, that before he took the mortgage from Moulton he knew of the mortgage to Bowley, made after his assignment to the tenant and before the recording thereof.</p> <p>After the evidence was all introduced, a verdict was taken for the demandant, without any instructions to the jury, which was to stand, provided the ruling as to the admission of evidence was correct, or if it should appear from the whole case that the demandant was entitled to judgment; otherwise the verdict was to be set aside.</p> <p>considered it to be very clear, that the admissions of Eli Hoskins, made after he had assigned the mortgage, were improperly admitted. The verdict was obtained by illegal evidence, and the tenant is entitled to a new trial. Without this evidence ours was the prior title, as our mortgage was first recorded. There was no entry or possession shown under the demandant’s mortgage. The possession of the mortgagee was under the contract only.</p> <p>said that so long as the assignment remained unrecorded, it was the same as if never made, except as between the parties. The testimony was therefore rightly admitted. But this is an immaterial question, as we are entitled to judgment on other grounds.</p> <p>1. The mortgagee, under whom we claim, was in the actual occupation of the premises until long after the mortgage of the tenant was made. This is equivalent to the recording of our mortgage. Webster v. Maddox, 6 Green!. 256; Davis v. Blunt, 6 Mass. R. 487. The contract between the parties as to the crops does not alter the case. It did not authorize the holding.</p> <p>2. If a man takes a title from a grantor who has no record title, he does it at his peril, and subject to all encumbrances existing upon the premises. When the tenant’s mortgage was made and recorded, his grantor had no title whatever on the records. If the tenant relies on the records to give priority to his subsequent deed, they show our prior mortgage before they show any title in his grantor. He therefore fails with the records, as well as without them. Flynt v. Arnold, 2 Mete. 626.</p>

<p>This was a writ of entry wherein was demanded one half part of a tract of land in Bangor, bounded beginning in the easterly line of a twelve feet passage way leading from Hammond Street northerly to Kenduskeag Stream, 69 feet northerly from the North line of said Hammond Street as used in 1832; thence North 87East, 13L feet to the centre of the Kenduskeag Stream ; thence up said stream North 32“ West, 166 feet; thence South 61£° West, 17J feet to a 12 feet way ; thence on the easterly line of said passage way South 8° West, 136 feet to the place of beginning. Also one undivided fourth part of another parcel of land in Bangor, bounded beginning on Hammond Street 12 feet westerly from the southwest corner of T. A. Hill’s store, as it was standing in 1832; thence easterly on the line of Hammond Street 23 feet; thence northerly at right angles to the centre of Kenduskeag Stream in the same direction with the side lines; thence down said stream to a point where the westerly line of a twelve feet passage way leading from said Hammond Street to Kenduskeag Stream extending in the direction as the side lines would strike the centre of said stream; thence southerly on said passage way to the place of beginning.</p> <p>The action was originally brought by Waldo Pierce and Robert Treat. During the pendency of the action, Oct. 10, 1841, Pierce died, and Treat moved for leave to amend by striking out the name of Pierce and otherwise amending, so that the action should stand as if commenced by Treat alone. The tenants objected, but the amendment was permitted by TeNney J. presiding at the trial.</p> <p>Each party filed exceptions to the rulings and instructions of the Judge. The Reporter has received the exceptions on but one side. It is believed that the rulings and instructions of the Judge, and such of the facts as are necessary to show their bearing, appear in the opinion of the Court.</p> <p>The question presented by both the bills of exception were ably and elaborately argued- by</p>

Debt on a bond dated Nov. 30, 1838, given by E. G. Thompson, as principal, with the other defendant as surety, to procure his release from imprisonmenfby virtue of an execution in favor of the plaintiff. The defendants introduced the certificate of two justices of the peace quorum unus, that after due examination, &c. they had administered to the debtor the oath prescribed in the act entitled “ An act for the relief of poor debtors.” This was the poor debtor act of 1835.

Writ of entry. Pierce claimed under the levy of an execution upon a tract of unimproved and unenclosed land in Bangor, and regularly traced his title back to an attachment thereof as the property of Samuel Smith, on Jan. 20, 1836.

<p>Replevin for a pair of oxen and a cow. Plea that the defendant as an officer, attached them as the property of Hazen Eastman, whose property they were.</p> <p>At the trial, before Tenney J. it appeared that the oxen and cow were once the property of Hazen Eastman, and as such had been attached by Adams on a writ in favor of Sweetser, and delivered to the plaintiff as receiptor therefor; that such proceedings were had, that the plaintiff became liable to Adams for the value of the property, because he did not restore it to him on demand ; that afterwards Hazen Eastman, in the words of the witness, “ did deliver the property to the plaintiff as security on that account;” that the plaintiff then told Hazen Eastman, that he might keep the cattle until he, Chandler Eastman, was called upon to pay the execution; and that Hazen Eastman did keep them in his possession until they were taken from him by the defendant by virtue of an attachment thereof on a writ in favor of Zebulon Pease against Hazen Eastman.</p> <p>contended that the action could be maintained upon this evidence. The plaintiff did not stand in the mere relation of servant of the officer, but of a creditor of Hazen Eastman, who had transferred the property as security for the plaintiff’s liability. He had the ownership, and the right to take immediate possession of the property, and that is all that is necessary to maintain trover, trespass, or replevin. It was, too, that description of property, which the statute permits to remain in the possession of the former owner, without subjecting it to attachment.</p> <p>argued :</p> <p>1. That the plaintiff, as receipter, could not maintain the action. He is the mere servant of the officer. 9 Mass. R. 312, 265 ; 14 Mass. R. 217 ; 7 Cowen, 294; 8 Cowen, 137.</p> <p>2. The contract existing between the plaintiff and Hazen Eastman was that of pledge only, and not mortgage; and therefore possession must not only be given but retained. A mortgage is a conveyance by which the legal title passes conditionally to the mortgagee, and if not redeemed at the time, the title becomes absolute. In a pledge a special property only passes, the general property remaining in the pledger. This is no more than a pledge. Story on Bailm. § 287; 2 Story’s Eq. $ 1030; 15 Maine R. 49; 2 Ves. Jr. 378; 2 Pick. 610; 12 Pick. 81; 8 Pick. 236 ; 12 Pick. 320.</p>

<p>Where an objection to tile form of a writ might have been taken by plea in abatement, it cannot be assigned as error to reverse the judgment.</p> <p>If the declaration be sufficient in substance, and the judgment be formal, there may be an informal writ without subjecting the party to the loss of his judgment. Error will not lie for defects in matter of form.</p> <p>A promise by an administrator to pay a debt of the intestate need not be in writing, nor upon any other consideration than the debt due from the intestate, to be sufficient to authorize a judgment against the goods and estate of the intestate in the hands of the administrator.</p> <p>And when the action is founded upon such promise by the administrator, it is not necessary to declare upon a promise made by the intestate, or to allege that he was requested and refused to pay. And indeed a request to pay need not be alleged in any other than those cases, in which it is necessary to allege and prove one, to entitle the plaintiff to maintain his action.</p> <p>All objections to the form of the writ and declaration are cured by a verdict, or judgment by default.</p> <p>Where the clerk of the Courts, in an action by an administrator, erroneously enters up judgment against tlio administrator instead of against the goods and estate of the intestate, or makes a mistake in the name of the administrator, the judgment should not be reversed, but corrected.</p>

Bill in equity. The case is stated in the opinion of the Court. among several causes of demurrer, said that a most substantial and meritorious one, was the want of proper parties. The bill states that there were four partners, doing business at Bangor, of which the plaintiff ' and defendant are alleged to be members. It is indispensable, that all of the partners should be made parties to the bill. 21 Pick. 526; Story’s Eq.

<p>An award to do some act, other than the payment of money, to be good, should be so certain, that a specific performance could be decreed.</p> <p>An award, that B should pay to A a certain sum “in property as good as he had received,” and that A should pay to B “the amount which B had paid to R in as good property as he had paid to R,” is void for uncertainty.</p> <p>An award may be good for part and bad for part; and the part which is good will be sustained, if it be not so connected with the part which is bad, that injustice will thereby be done.</p> <p>Where the parties enter into an agreement in writing in relation to a certain business between them, one cannot maintain an action for money had and received against the other, to recover money received in the business, as provided in the agreement, if it still remains open and executory.</p>

Barker, who was summoned as the trustee of Crosby, admitted in his disclosure, that he had effects, which had belonged to the debtor, in his hands, but claimed the right to retain the same by virtue of an assignment thereof to him for the benefit of certain creditors of Crosby who had become parties to the assignment, dated July 12, 1839. The plaintiffs had never been parties to it.

The action was assumpsit for money had and received, and was submitted to the Court on the following statement of facts.

Bill in equity. The substance of the bill, and the grounds taken in defence, in support of the demurrer, appear in the opinion of the Court. citing Rev. Stat. c. 96, 10; Given v. Simpson, 5 Greenl. 303; 9 Story’s Eq. 1085; Story’s Eq. PI. 994 to 934. citing Story’s Eq. PI. 349; 1 Story’s R. 384; 1 Mason, 178.

This . was an action on the case against the defendant, as late sheriff of the county of Hancock, for the alleged default of Sevvall Lake, in not keeping logs attached by him, on a writ in favor of the plaintiff against Greene & Welch, to be taken on the execution issued on the judgment. A copy of the officer’s return follows. “Hancock, ss. April 29, 1837.

<p>The Judge of Probate has no power to assign dower to the widow out of any lands purchased of the husband .during his lifetime, or where an heir or devisee, or person claiming title under an heir or devisee, disputes her right of dower in such lands.</p> <p>It was not intended, that any question of title should be submitted to the decision of the Judge of Probate.</p> <p>In determining whether the Probate Court has power to assign dower anew to a widow who has been “ evicted of lands assigned to her as her dower,” the fourteenth section of Rev. Stat. c. 95, should be considered in connex-ion with the second section of the same statute.</p>

<p>If an incorporated manufacturing company, by their agent, draw a bill upon their treasurer and indorse the same, a demand upon him, and his refusal to make payment, have the effect against the company, in order to charge them as indorsers, of both demand and notice.</p> <p>If the agent of an incorporated manufacturing company be clearly authorized to issue negotiable business paper, indorsees, not privy to its origin, would not be bound to look into the particular transaction giving rise to the existence of a note or draft; but would have a right to presume that it had been drawn in pursuance of the authority delegated.</p>

<p>The protest of a notary public of another State, wherein he states, that he sent a notice of the dishonor of a bill to the drawer on the next day after the demand and refusal, “ and by the first practicable mail thereafter,” is competent evidence to prove the facts thus stated.</p>

<p>Tlie holder of a bill or note lias a right to adopt a private conveyance, instead of tile mail, for the receipt and transmission of notice to a drawer or indorser of the dishonor thereof; but in such case, it is incumbent on the holder to show, that due diligence was used.</p>

<p>To render a person liable as owner of a vessel, it is not necessary to show that he was such by the register, or by bill of sale, or other instrument in writing; but for that purpose, the ownership may be proved by parol evidence.</p> <p>The taking of the vessel by the master, his victualing and manning her, paying a portion of the port charges, and having a share of the profits, do not of themselves constitute him the owner pro hac vice. It is the entire control and direction of the vessel, which he has the power to assert, and the surrender by the owners of all power over her for the time being, which will exonerate them from their liability for the contracts of the master relating to the usual employment of the vessel in the carriage of goods.</p> <p>It is not competent for the master of a vessel, by virtue of his power as such, to bind the owners in the purchase of a cargo; and before they can be holden for the payment therefor, there must be satisfactory proof of prior authority to purchase, or subsequent ratification of his acts.</p> <p>If the owners of a vessel receive her from the master, with a cargo on board, knowing it to have been purchased on credit for the benefit of the vessel and owners, and send the same to another port under charge of another master for the purpose of making sale of the cargo, and on this voyage a part of the cargo is thrown overboard for the security of the remainder and of the vessel, and the residue is sold at the port of destination, and the proceeds thereof are applied to the repair of the vessel, the owners are liable to those who furnished the cargo for the price thereof.</p> <p>To determine whether an instruction, given by the Judge to the jury, at a trial, be correct, it should be considered in connexion with the evidence and the other instructions to them on the same subject.</p>

Trespass for breaking and entering the camp of the plaintiff in the county of Aroostook, and taking and carrying away various articles in use in lumbering operations. There was also a count for a trespass on the person, and false imprisonment. Jarvis, at the time of the alleged trespass, was provisional Land Agent of the State, and as such justified the acts complained of under the authority of the resolves of 1839, and especially that of Jan. 24, 1839.

Case against the defendant, as late sheriff of the County of Washington, for neglecting to attach sufficient personal property to respond the judgment on a writ in favor of the plaintiffs against L. C. White.

Assumpsit for services alleged to have been by her performed for the defendant in washing clothes. The plaintiff, at the time of the commencement of the suit, was the widow of David Prescott, whose estate was insolvent. The plaintiff proved the services charged to have been performed personally by her, while she was the wife of said'David, but did not show any promise by the defendant to pay her personally.

<p>This case came before the Court upon a statement of facts of which the material parts appear in the opinion. If in the opinion of the Court the action could be maintained, a default was to be ordered ; and if it could not be, then tlie plaintiff was to become nonsuit.</p> <p>In support of the position, that all statutes on the same subject should be considered in connexion, in giving a construction to any one of them, they cited 1 Bac. Abr. Stat. I. And to show that all the parts of a statute are to be examined, and that the general intention should govern, regardless of particular words, they cited Co. Lit. 381 (a) ; 1 Kent, 461 ; 2 Gall. 204; 2 Cranch, 33 ; 1 Piet. 248. They also cited the various statutes in relation to banks, with comments, and particularly, St. 1836, c. 233, and Rev. St. c. 77.</p> <p>And in support of the position, that if the act of 1836 was retrospective and embraced the present case, it was thus far unconstitutional and void, they cited 3 Story’s Com. on the Const. § 1370, 1379; 9 Cranch, 43; 8 Wheat. 1 ; 2 Greenl. 28 and 275; 6 Greenl. 112; 8 Mass. R. 445; 15 Mass. R. 447; 16 Mass. R. 76.</p> <p>commented upon the statutes in relation to this subject, and contended that the act of 1836, in its terms, clearly embraced the present case.</p> <p>The act was constitutional. The Court will not declare an act of the legislature to be unconstitutional, unless it be clearly so. 14 Mass. R. 340; 16 Mass. R. 270 ; 2 Fairf. 284.</p> <p>He contended that the statute of 1836 created no new liability of stockholders in banks, but merely provided a remedy for a creditor to avail himself of the liability created by the prior statute of 1831. The books are full of cases to show, that an act of the legislature providing a remedy in such cases is constitutional. Among them are J Mete. & P. Dig. 559, 554, 563; 4 Wheat. 122; 10 Wheat. 370; 2 Pick. 158; 19 Pick. 48 ; 21 Pick. 169, 250 ; 22 Pick. 430; 2 Fair!’. 284 ; Oriental Bank v. Freese, 6 Shepl. 109.</p>

<p>The two first counts in the declaration were founded upon a memorandum of which the following is a copy.- “ Know all men by these presents, that I, Henry S. Jones, do' hereby bind myself to re-convey to Jonathan Osgood and Samuel P. Osgood a certain parcel of land this day conveyed to me by them, and also the goods in their store this day sold me, when they, the said Jonathan Osgood and Samuel P. Osgood, shall or do pay Charles Warren & Co. four certain notes of hand, bearing even date with these presents, amounting in all to the sum of five hundred and ninety-two dollars, which notes I have signed as surety. Mount Desert, Aug. 12, 1837. Henry S. Jones.” The other facts in relation to these two counts appear in the opinion of the Court.</p> <p>The third count was for money had and received, and the fourth was upon a note given by the defendant to the plaintiffs. The plaintiffs and the defendant, as the report of the case states, on April 27, 1840, settled an account between them, in which the latter charged the plaintiffs with “ indorsed on Jonathan Osgood’s note, 57,27J.” That sum was allowed on the adjustment. The statement of the proceedings in the suit in favor of Jones against Jonathan Osgood before judgment is thus. “ Said note had subsequently been put in suit, and after appearance of defendant by counsel, and a continuance, judgment upon default had been rendered upon it for the whole amount, no indorsement of said sum having been made; and neither the plaintiffs, nor their counsel, at the term when said action was continued, nor at the term when it was defaulted, had any knowledge that such sum had not been indorsed upon said note.” The other facts appear as full in the opinion as in the report of the case.</p> <p>and on the point, that if the demand for a deed was informal, the reply amounted to a waiver of any objection to it, cited 9 Mass. R. 277 ; 1 Peters, 455; 2 Greenl. 1 ; 6 Greenl. 208; 2 Fairf. 258 and 475; 3 Fairf. 332; 14 Maine R. 335; 17 Maine R. 34 and 296 ; 16 Pick. 327; 18 Pick. 16 ; 19 Pick. 13; 21 Pick. 396.</p> <p>And to the point, that as the defendant had made a false assertion, that the sum was indorsed on the note, and had thus caused a mistake on the part of the plaintiffs, it could be recovered in this action, they cited Fowler v. Shearer, 7 Mass. It. 14 •; Rowe v. Smith, 16 Mass. R,. 306.</p> <p>and on the point, that it was the duty of the plaintiffs to furnish a deed and offer it to the defendant, and request him to sign it, cited For. 61 ; 6 M. & W. 6 and 385.</p>

<p>Jifera.— Shepley J. was employed in holding the Court in the county of Washington for the trial of jury causes, and could not attend at this term, and took no part in the decisions.</p> <p>If the jury have through a misconception of the meaning of legal terms returned a verdict the reverse of what they intended, and such verdict has been affirmed, the papers may be again delivered to the jury by direction of the presiding Judge, before they have separated or left their seats, and the Judge may explain to them the meaning of those terms, and they may correct their verdict, although the writ in the next action may have been read to them,</p>

<p>Assumpsit against tfie defendants as indorsers of two promissory notes. The plaintiffs introduced the proof necessary to charge the defendants as indorsers.</p> <p>The defendants thereupon contended that the action could not be maintained by reason of the provisions of the additional act of April 16, 1841, repealing the charter of the Frankfort Bank, which required all claims to be presented and proved before the receivers, appointed to take charge of the effects of the bank, prior to July 1, 1842, as it had not been shown, that the plaintiffs had complied with such provision. The plaintiffs then proved, that the action was commenced Feb. 2, 1841, and that, property was attached on the same day. And that on Juno 17, 1841, a copy of the writ was duly served upon the receivers.</p> <p>Shefley J. who presided at the trial, ruled that the service of the writ upon the receivers was not such presentation of the claim and proof, as the statute required, and that the action could not be maintained. The plaintiffs filed exceptions.</p> <p>contended that as the action was commenced before the repeal of the charter, and the debt secured by an attachment of property, their right became vested, and that the legislature had no constitutional power to pass acts affecting their rights injuriously. Mete. &. P. Dig. 555; 8 Mass. P. 43; 2 C Tills. 141; 2 Groen!. 294; 3 Green!. 32G; Story’s Corn, on Const, c. 34.</p> <p>They also contended, that the service of the writ upon the receivers was in substance a compliance with the requirements of the statute in relation to proof of the claim.</p> <p>said that the legislature reserved in the charter the right to repeal it, on the happening of a certain event, which it is admitted has taken place in this case. This is clearly a constitutional act. When the corporation ceased to exist, the action was gone. This is decisive against the present case. The legislature, however, did' provide a remedy by taking possession of the effects of the corporation, and making an equal distribution thereof among all the creditors, who would bring in and prove their debts. ! The plaintiffs have less ground for setting up a claim to vested rights, than the creditor who has attached the property of an insolvent man, who dies during the pendency of the suit.</p> <p>Merely giving the receivers notice of the suit, cannot be considered as presenting and proving the claim.</p>

<p>The first of these actions was debt upon a bond dated Aug. 16, 1836; and the second upon anotherbond, dated October 20, 1838. There was a third bond given by Johnson, as cashier of the bank, on October 7, 1839, on which a third suit had been brought. The sureties were not the same in the two first bonds as in the last. The facts are given, at the commencement of the opinion of the Court.</p> <p>Shepley J. presided at the trial, and ruled that the action could not be maintained for the recovery of damages sustained by the unfaithfulness of the cashier after he had been reappointed and had given a new bond. The verdict of the jury in the first action was for the defendants ; and in the second, under the same ruling, the defendants offered no evidence, and a nonsuit was ordered. The plaintiffs filed exceptions.</p> <p>contending, • that there was nothing in the law which made it necessary, that there should be an annual election of cashier of a bank, . but merely, that a new bond should be taken annually. By the condition of the bond, the obligors were holdeu so long as the principal should be cashier of the Bank. The new bond is not a substitute for the old one, but merely an additional security to the plaintiffs. Dedham Bank v. Chickering, 3 Pick. 335: 1 Mete. & P. Dig. 390.</p> <p>contending, that when a new election was made and a new bond was given, that the first bond could be a security, only for the good conduct of the cashier until the giving of the second bond. It is like the case of an election of a city or town treasurer for a second and third year, where the sureties are liable but for the defaults happening during their year.</p>

<p>Trover for a pair of oxen.</p> <p>A witness called by the plaintiff testified, that the oxen were purchased by the plaintiff, and left in the possession of the witness, subject to the call of the plaintiff; that while they were so in the personal care of the witness, the defendant said to him, that he had a precept against him, with orders to attach those oxen as his property; that he informed the defendant, that they were not his property, but belonged to the plaintiff; that the defendant replied, that he was indemnified, and instructed to attach them on a writ against the witness: “ that the defendant than suggested the expediency of procuring a receipter for the oxen, to which witness assented, and they thereupon left the oxen, and went together to Aaron Nicker-son, who receipted for them ; that said oxen were not taken from the sled, or in any way interfered with by the defendant, except by saying he must attach them, and did attach them as aforesaid; and that the oxen have since remained in the possession of the witness.” After the witness had testified, the testimony was turned into a statement of facts. There was nothing in the case to show, whether any return was. or was not made upon the writ by the defendant of an attachment. It was agreed that such judgment should be rendered by the Court, on the statement, as the law required,</p> <p>contended that when property was attached, that the officer became a trespasser by' the act, unless he could justify himself by the precept under which he acted. It is the attachment of the property, which constitutes a conversion of it; and it is immaterial, whether he makes a return upon the writ, or not. 7 Johns. R. 254 ; 8 Wend. 610 ; 10 Wend. 110.</p> <p>said here was not the slightest intermeddling with the property. It was a mere statement that he would take the oxen unless something should be done-. The taking of a receipt for the property does not constitute an attachment. There has been no act done from which a conversion can be inferred. Boynton v. Willard, 10 Pick. 168; Lathrop v. Cook, 14 Maine R. 414.</p>

The plaintiff, as indorsee brought his action against the defendant on a note given by him to Harriet Treat, dated March 8, 1838, for $28,82, payable on demand with interest. The consideration of the note was two small notes from the defendant to Nathaniel Treat, given up at the time to the defendant by the agent of Harriet Treat.

The parties agreed to a statement of facts. The action is debt upon an award, the writ bearing date Oct. 19, 1841.

<p>Under the Rev. Stat. c. 94, the return of the officer of a levy upon land, that the debtor’s agent, named in the return, selected an appraiser, is regarded as prima facie evidence of the authority of the agent to select an appraiser, and that the debtor was virtually notified for the purpose; especially where it docs not appear, that there was any privity between the execution debtor and the demandant.</p> <p>If the justice certifies, that certain persons named, personally appeared and made oath, in proper form, as appraisers of real estate, the certificate furnishes sufficient evidence, that the appraisers were sworn by him, although he may omit the words, usual in such cases, preceding his signature, “ Before me.”</p> <p>Nor will the levy be void, if the appraisers, in the certificate of the magistrate and in the return of the officer, are denominated “persons,” and not “men,” in the language of the statute, the names of the persons indicating that they were males, and not females.</p> <p>It is a sufficient proceeding with the officer to view and examine the land, by the appraisers, under Rev. Stat. c. 94, § 6, if they proceed under the direction and supervision of the officer.</p> <p>The true construction of the seventh section of the same statute is, that whatever the nature of the estate may be, it shall he described by metes and bounds, or in such other mode, as that the same may be distinctly known and identified.</p>

Writ of entry demanding an island in Penobscot Bay, called Job’s island. The demandants claimed under a release procured from the Land Agents of Massachusetts and Maine, dated Dec. 20, 1829.

The plaintiff was a stockholder in the Frankfort Bank, and brought this action against the defendants as directors of the same bank, under the provisions of Stat. 1831, c. 519, 28, regulating banks and banking; alleging that he had lost the value of his shares in the capital stock, through the misconduct of the defendants, as directors thereof.

This was a writ of entry wherein the demandant claimed under a mortgage of the premises by Samuel Merrill to the demandant and David Sears, since deceased.

<p>The plaintiff was a depositor of money with the corporation, and on June 17, 1839, gave the regular notice of his intention’to withdraw the same. On July 17, 1839, the plaintiff made a regular demand on the treasurer for the amount deposited. Payment was refused, and this suit was commenced.</p> <p>At the trial before Shepley J. at Nov. Term, 1841, the defendants offered to prove, that the whole liabilities of the Institution amounted to $94,703,43 ; that the sum of $5,043,54 had been collected, and dividends to the amount of that sum declared; that the assets of the institution, after deducting the sum last mentioned, were of the value of $42,231,52 only; and that the losses, by which the value of the assets had been so reduced, had not arisen from any neglect or fault on the part of the institution or its officers.</p> <p>The presiding Judge was of opinion that such testimony would not operate in any manner as a defence to this action, and rejected the evidence. Thereupon a verdict was taken for the plaintiff, which was to be set aside, if the testimony should have been admitted, or if the Court should be of opinion that upon the facts the action could not be maintained.</p> <p>The act of the Commonwealth of Massachusetts, of June 11, 1819, incorporating the defendants, by the name of the “Institution for Savings for the town of Portland and its vicinity,” and the by-laws of the institution, were referred to as part of the case.</p> <p>The case was argued on April 21 and 22, 1842, by</p>

<p>This was a bill in equity, and after its address to the Court, commenced thus: “ Complain your orators, Stephen Longfellow, Joshua Richardson, Albert Newhall, Eliphalet Greely, William Swan, Levi Cutter, William Pitt Preble and William Willis, as they are the board of trustees of the Institution for Savings for the town of Portland and its vicinity, that the said institution for savings was duly incorporated by the legislature of the Commonwealth of Massachusetts, by an act entitled “ An act to incorporate the Institution for Savings for the town of Portland and its vicinity,” passed the eleventh day of June, in the year of our Lord one thousand eight hundred and nineteen.” In another part of the bill it is said, “ as the several depositors, as well as your orators and the said Institution for Savings, are remediless in the premises at and by the direct and strict rules of the common law, and cannot have adequate relief save in a court of equity.” The bill appears to have been brought by the gentlemen who were trustees of the corporation, but as the entry in Court was made in the name of the “ Savings Institution,” as plaintiffs, and the trustees have no personal interest, the corporate name is retained, in place of that of the plaintiffs.</p> <p>The main provisions of the act of incorporation and of the by-laws, will be found in the opinion of the Court in this case, and in the preceding case of Makin v. The Savings Institution ; and it is unnecessary to repeat them here. The substance of the bill and answers is also stated in the opinion.</p> <p>The case was argued on April 21 and 22, 1843, by</p>

This case came before the Court upon the following bill of exceptions from the Western District Court, Goodenow J. presiding. Trover against the defendant for one barrel of beef, one barrel of pork, four barrels of flour, and five and a half bushels of corn.

This was a writ of error brought to reverse a judgment, rendered by a justice of the peace in an action of. debt, in favor of .Lakin, as clerk of a company of militia, against Emerson for neglecting to appear at a regimental review and inspection on September 9, 1840.

<p>This was a bill in equity against T. R. Sampson, A. Sampson and C. C. Mitchell, and was heard upon bill, answers and proof.</p> <p>The view of the ease taken by the Court renders it unnecessary to state the facts more fully, than they appear in the opinion of the Court, or to notice some of the positions taken in the argument.</p> <p>contended, that the discharge of the first mortgage had been obtained through fraud or mistake, it being immaterial which ; and that the Court should set aside the same in a bill in equity seeking this relief, and place that mortgage in the situation in which it stood before the discharge. Harding v. Randall, 3 Shepl. 332; 1 Story’s Eq. 201, 202; 2-Bro. Ch. R. 385; 10 Ves. 475; 1 Vern. 136; 1 Ves. & B. 355; 1 Vern. 9; lP.Wms. 240; 3 Peere Wms. 129; 1 Story’s Eq. <§. 197; 2 Atk. 33 & 203; 1 Munf. 330; Daniels v.' Mitchell, 1 Story’s R. 172.</p> <p>The discharge of the mortgage should be rescinded, and the parties placed, as they before stood, because of the concealment of the fact of the existence of the second mortgage. He was bound in duty to have disclosed that most material fact. 1 Fonbl. Eq. B. 1, c. 2, <§, 8; 1 Vern. 19; 6 Ves. 173 ; 2 Wheat. 178; 2 Shepl. 363; 4 Shepl. 30; 1 Sch. & Lefr. 209; 6 Yerger, 108 ; 4 Mason, 375.</p> <p>said, that the whole facts, so far as within Mitchell’s knowledge, are stated in his answer. Ho derived no advantage from the transaction, acted uprightly in the whole matter, and should in no way be injured or put to expense in the business. If justice can be done between the other parties, he has no objection.</p> <p>contended that the plaintiffs did not rely upon any statements of T. R. Sampson, but examined the registry of deeds for 'themselves, and acted on the information there obtained. A. Sampson had nothing to do with these transactions, and had no knowledge of them. If there was any mistake under which the parties acted, it was the mistake of the register. If any false representations were made by T. R. Sampson, they must have been relied on by the plaintiffs, or he can have no remedy on that account. 1 Story’s Eq. § 191.</p> <p>But there is no evidence, that T. R. Sampson made any false representations. There is nothing of the kind found, excepting in the answer of Mitchell; and that is not evidence against the other defendants, as there is no partnership or joint interest between them pretended.</p> <p>in reply, considered the answer, as evidence in the whole case, circumstanced as this is; but contended, that there was sufficient evidence of the fraud without it.</p>

The facts in the case appear in the opinion of the Court. The notice to which objection was made was as follows: ((Augusta, Dec. 29, 1836. . Sir — Please to take notice, that Wheeler & Perkins’ note, dated August 25, 1836, for fourteen hundred and ninety-one ' dollars and ninety cents, payable in four months, became due this day, and is protested for non-payment, and that the holder looks to you as indorser for the same. “ D. Williams, Not.

Assumpsit upon a promissory note, of which the following is a copy. “ $375. May 20, 1835. For value received I promise to pay Daniel Burnham or order three hundred and seventy-five dollars, with interest annually, payable in three yearly equal payments. “ Daniel Brown.” The suit was commenced Dec. 5, 1842. The statute of limitations was pleaded as a bar to the recovery .of the first yearly payment and the interest for the first year.

Exceptions from the Western District Court, Goodenow J. presiding. This was an indictment against the defendant as a common seller of spirituous liquors, at Portland, without license, from May 15, 1842, until March l, 1843. The County Attorney called certain citizens of Portland as witnesses, to prove the charge in the indictment, who were objected to as incompetent witnesses, but the objection was overruled, and they were received as witnesses.

<p>The lessor of the plaintiff in an action of trespass quare clausum, wherein soil and freehold in the premises are pleaded by the defendant in himself, on being released from all claims under the covenants of the lease, is a competent witness for the plaintiff to disprove the title set up by the defendant.</p>

This was a complaint under the statute, originally instituted before a justice of the peace, wherein the complainants allege, that one Samuel Rand, whose legal settlement was in Portland, was found in distress and in need of immediate relief in Wind-ham, and prayed that the lawful settlement of Rand might be adjudged to be in Portland, and that he might be removed to that city. The complaint was dated June 22, 1842.

Assumpsit upon an instrument in writing of which a copy follows. “ Mem. Due Edward Crehore seven hundred and ten dollars for seventy-one shares in the Androscoggin Canal and Mill Company. Washington, Jan. 10, 1836. “ Moses Mason, Jr.” With the general issue the statute of limitations was pleaded.

<p>The demandant in a writ of entry can recover only on the strength of his own title, and not by the failure of title in the tenant.</p> <p>The owner of the premises will not become disseized thereof by a survey, allotment and conveyance thereof, and by recording the deed, without any open occupation or improvement of any part of the estate purporting to be conveyed by the deed.</p>

Exceptions from the Western District Court, Goodenow J. presiding. This was a complaint under Rev. Stat. c. 32, for the purpose of compelling Hugh Bennett to support his father, an alleged pauper of Bridgton. The counsel for the respondent called for the exhibition of the authority of the counsel to appear for the town, and contended that the complaint was improperly brought .without authority of the town, and ought to be dismissed.

Exceptions from the Western District Court, Goodenow J. presiding. This was an award under a rule of reference, entered into before a justice of the peace pursuant to the provisions of the Revised Statutes.

21, 1842. One of the seven errors assigned was, that it appeared by the record of the justice, that at the time when the alleged disturbance and contempt took place, if any occurred, it was after sunset. The facts sufficiently appear in the opinion of the Court,

Case against the defendant for neglecting to deliver five tons of hay, to be taken on an execution in favor of the plaintiff against one Dennin, the same having been attached by the defendant as the property of Dennin on a writ in favor of the plaintiff.

<p>This Court lias equity jurisdiction in all suits to compel a specific performance of contracts in writing, made since February 10, 1818, when the parties have not a plain and adequate remedy at law. But where the agreement has been carried fully into effect, and no further act is to be done under it, there can be no decree, under the equity powers of the Court to compel a specific performance of contracts, that other acts for the convenience or security of the parties should be done.</p> <p>Where the parties agreed in writing under their hands, that a person designated by them should ascertain and mark the linos between their respective estates; and where the service was performed and the lines marked, and the parties occupied according to those lines for several years, when one of th.em entered beyond the line, thus marked as his boundary, and took timber and wood therefrom, it was held, that the party injured thereby could not maintain a bill in equity, either to compel releases of the land beyond the line thus marked, to be given, or to obtain compensation in •damages for the injury sustained.</p>

Exceptjoks from the Western District Court, Goodenow J. presiding. On February 5, 1842, the plaintiffs brought their action on an account annexed to the writ for the rent of a certain mill for sawing lumber. With the general issue the statute of limitations was pleaded. The plaintiffs offered in evidence the account, at the foot of which was a note signed by H. C. Babb, and a memorandum signed by the defendant.

Assumpsit to recover the amount of a bill charged to t: Owners of schooner Bethiah, Thing & Morse.” The first item was under the date of April 15, 1841, and the last on the eighth of September following. Thing was defaulted, but the other defendant, Morse, denied bis liability. The facts sufficiently appear in the opinion of the Court. said it was well settled, that one part owner of a vessel could not, as such merely, render the other owners liable for the cargo.

Assumpsit against E. A. Greene, as administratrix, of the estate of Roscoe G. Greene, deceased, whose estate had been represented to be insolvent. The plaintiff had presented his claim to the commissioners; and being dissatisfied with their decision, brought this suit under the provisions of Rev. St. c. 109, 20. The first paper introduced by the plaintiff at the trial before Whitman C. J. was thus. “ Portland, June 30, 1835.

<p>Assumpsit for goods sold and delivered as by a bill of particulars annexed to the writ.</p> <p>The facts are given in the opinion of the Court.</p>

The nature of the action and the main facts in the case appear in the opinion of the Court. The case came before the Court upon an agreed statement of facts. contended that the act incorporating the town of Pownal, March 3, 1808, made provision for the support of the paupers between that town and Freeport.

Assumpsit for goods sold and delivered, as by a bill of particulars annexed to the writ. The articles of the greatest bulk and weight were casks of liquor, no one containing a greater quantity than forty-five gallons, and barrels of sugar. At the trial before Shepley J. the plaintiffs introduced their books of original entries, on which the commencement of the account in suit was thus. “ Mr. S. F. Belknap to C. C. Mitchell & Son, Dr. 1842.

Exceptions from the Western District Court, Goodenow J. presiding. The facts in the case, and the questions raised in the District Court, as well as the rulings and decisions of the District Judge, appear in the opinion of this Court. in support, of their positions in the District Court; and cited Wood v. Fresco'd, 2 Mass. II. 174; Spear v. Bicknell, 5 Mass. R. 129; Ilodgdon v. Foster, 9 Green!. 113; Low v. Ross, 3 Green!. 256 ; Com. Dig.

<p>When a caso is opened 1o the jury, and taken from them without a verdict, and submitted to the opinion of the Court upon a report of the evidence, and there is no agreement of the parties inconsistent therewith, it is within the discretion of tho Court to permit other evidence to be offered, if it is in itself pertinent to the issue;, and has a tendency to throw light upon the questions presented.</p> <p>Where justices duly selected and qualified have administered the poor debt- or’s oath, after an examination, to a debtor, who had been arrested on execution and had given bond, they may amend their certificate, conform-ably to the truth of tho case, not only after tho commencement of a suit upon the bond, but upon the trial thereof.</p> <p>Ctidor the poor debtor act of tin; Revised Statutes, if the debtor wishes to avail himself of the benefit of an examination and of tho poor debtor’s oath, it is for him to take such measures, that a legal tribunal for the purpose shall bo constituted. Ho must select one justice, and procure bis attendance at the time and place appointed in the notice; and if the creditor omits to appear and select the, other, the debtor must cause the appointment to be made by an officer, and procure the attendance of the justice so selected.</p> <p>The statute has pointed out no mode, document or precept, in reference to the selection of a justice, which an officer is hound to regard, or notice; and the debtor has but the same power to procure the appointment and attendance of the other justice, in such case, that he has in procuring the attendance of tho justice selected by himself.</p> <p>Tr is not necessary that the officer making the selection of a justice, should have absolute knowledge of the failure of the creditor to make bis own selection. If the officer acted under erroneous information, and made an appointment, when the creditor had procured the attendance of a justice of his own selection, the appointment by the officer would be void.</p> <p>Tho justices may amend their certificate by adding, in accordance with the truth, a more full statement ol’ the mode in which their own selection was made.</p> <p>Whore it appears by the certificate of the justices to what debt, the proceedings related, their omission to insert the date of tho execution, on which the arrest was made, will not render tho proceedings void.</p> <p>When the certificate of the justices states that the debtor was examined prior to his taking the oath, it is conclusive in that respect; and parol evidence is inadmissible to show that there was in fact no examination.</p> <p>That there was an examination is implied from the language of a certificate which says, “ that in our opinion the debtor is clearly entitled to have the oath prescribed in the 28th soefion of said chapter administered by us, and that wo have, after duo caution to him, administered said oath.'’</p>

<p>If a note is signed by one person, witnessed, and delivered over to the payee, and afterwards, when the subscribing witness is not present, a third per, son in pursuance of an original agreemeiit to that effect, signs his name Upon the back thereof, so far as it respects the latter it is not within the provisons of the tenth section of the statute of limitations of 1821, c. 62, as a “ note in writing, made and sighed by any person or persons and attested by one or more witnesses.”</p>

Writ of entry wherein certain lands in Shapleigh were demanded. The parties agreed upon a statement of facts, and that the Court might render such judgment as they would, if the same had appeared on the report of a Judge on trial of said action, and might order a nonsuit or default. The title under which the demandants claim is thus derived.

Samuel Lord and others presented their petition at the regular term of the Court of the County Commissioners- for the county of York, in May, 1840, wherein they prayed that a new road might be located from a certain point in the middle road village in Parsonsfield, to another point at Limerick corner in Limerick.

<p>Assumpsit against Joseph H. McKenney‘and Leander Staples, on a note dated March 13, 1835, given by them to Lydia Boody, then the wife of tho plaintiff. Staples was defaulted, but Mc’Kenney defended, pleading the general issue and infancy.</p> <p>The facts are stated in the opinion of the Court. The Court were authorized to draw such inferences from the facts as a jury might properly do.</p> <p>said that he did not contend, that it was competent to introduce parol evidence to change the terms of the note, but that the evidence offered was admissible to prove that the note was to be delivered up on the happening of a certain contingency, which had happened.</p> <p>The declarations of Staples ought to have been admitted, as part of the res gesta. The possession of that part of the property was changing at times and the cause of it was stated, and this was the evidence offered. It is a common mode of poving a sale, by showing that the owner has declared that he sold it. And it is the best evidence the nature of the case would admit, as the plaintiff had chosen to prevent Staples from being a witness, by joining him as a defendant. The receipt was admissible on the same principle, but if either is admissible it is sufficient.</p> <p>But if the evidence be not admissible, how then does the case stand ? As McKenney was an infant at the time of the signing, it must be shown, that he has said something, or done something, after he became of age, to make him liable, or judgment must be in his favor. He has said nothing, and the only pretence is, that he had a very small portion of the property received by Staples of H. McKenney, in his hands, after he hecamé twenty-one years of age.</p> <p>If the note had been given to Henry McKenney, then Joseph could not have avoided the contract. It was valid between the other parties, and Joseph had no power to take property from Staples and return it to Henry, and could not avoid the contract. Staples was liable, and it was wholly a matter between him and Joseph, what was done with the property. Joseph had no power to rescind or disaffirm the contract.</p> <p>The property sold by Henry McKenney to Staples and Joseph, was not the same sold by Mrs, Boody to Henry. She had no better claim, than if she had never owned any portion of it. There was no privity whatever between Mrs. Boody and the present defendants. She took the note of Staples, whom she knew was of age, and of Joseph, known to her not to have been of age, instead of the nofe of Henry. The security was as good as before without Joseph, The note would have been good against Staples without consideration, and against Joseph also, but for his infancy. She, therefore, had nothing to do with the consideration as between Henry and the defendants. Whether Joseph had none, or all, of the property purchased of Henry, so far as the plaintiff was concerned, was wholly immaterial, and could not affect the liability of Joseph, if he could have returned the property she could not have held it a moment. If the sale was rescinded, the property would not have belonged to her. If the defendants could not have set up want of consideration as a defence against the plaintiff, had the property turned out not to belong to Henry, it would seem to follow, that the liability of the defendants could not he affected by the use made of the property.</p> <p>As the contract between the parties of age was valid, no act of disaffmnation on the part of Joseph could give the plaintiff, or Henry a right to take the property. How then could the manner in which the property was disposed of between Staples and Joseph vary the rights of any of the parties to this transaction ?</p> <p>No prior rescinding of a contract is necessary, in order that the plea of infancy may be availing, nor is it necessary to return the property. Tucker v. Moreland, 10 Peters. 75; Jienham v. Bishop, 9 Conn. 11. 330. The infant must do some positive act to confirm the contract, after he arrives at full age, or he cannot be bound. And a mere acknowledgment of indebtedness is not enough, but there must be an express promise to pay. Ford v. Phillips, 1. Pick. 203 ; Thompson v. hay, 4 Pick. 48; Hale v. Gerrish, 8 N. H. R. 374. And must be made to the party in interest. 3 Wend. 479; 11 Mass. R. 147. A partial payment, after the minor has arrived at full age, is not a ratification of the contract on which the payment was made. Putnam v. Dutch, 14 Mass. R. 460; Barnaby v. Barnaby, 1 Pick. 221. And the promise must be made deliberately and with a knowledge that he is not bound by law. 9 Mass. II, 62 and 100. The mere possession of part of the personal property after of full age, and' sale thereof, does not amount to a ratification. Thing v. Libby, 4 Shepl. 55. .</p> <p>The ground on which the possession and sale of the property by the infant, after he becomes of full age, is considered as equivalent to a new. promise, is a matter between seller and buyer, and is believed to be, • that he shall not be suffered to avail himself of the consideration, and pay nothing for it. The facts do not show this, but the reverse. Staples was at all events liable, and took possession of the whole 'of the- property, and retained it for more than a year saving the portion he had previously sold. The only part of this property, which ever came into the possession of Joseph, was but a very small one and was received directly from Staples, who disposed of all the rest. Joseph did not receive this property from the plaintiff, nor from Henry. Nor did he ever receive the half of the property, or any equivalent for it from Staples. There is, therefore no foundation for any conclusion that he received the colt in any other mode, than as a purchase of it from Staples. He should'not be held liable, as it was not received under any contract with the plaintiff or Henry, and could be no affirmance of it.</p> <p>contended, that the contract whs for the benefit of the infant, and was therefore valid and binding upon him ab initio. Ü. States v. Bainbridge, 1 Mason, 82; Keane v. Boycott, 2 H. Black. 514; Stone v. Dennison, 13 Pick. 6.</p> <p>Infants are liable for necessaries. Certain articles of property are in themselves necessaries. Other articles become necessaries, whenever they accord with the infant’s proper bush ness or station in life. 8 T. R. 578; 2 Strange 1101 ; Chitty on Con. 31. These articles were necessaries for him as a farmer.</p> <p>The infant has no defence, for he has tacitly acquiesced for five years, and has not disaffirmed the contract, or given notice that he did not intend to be bound. 8 Taunt. 39 ; 8 Greenl. 405 ; 6 Conn. R. 494.</p> <p>If he had given proper notice of his disaffirmance on arriving at majority, yet in order to avail himself of a defence to the note, he was bound to return the property, or at least so far as he was able, to have restored to the plaintiff his just rights. 15 Mass. R. 363; 1 Greenl. 13; 7 Cowen, 179; 2 Kent, 241.</p> <p>If the contract was originally voidable, the infant has affirmed it by his holding and making sale of the colt, and converting the proceeds to his own use. Lawson v. Lovejoy, 8 Greenl. 405; Dana v. Coombs, 6 Greenl. 91. It was incumbent on him, if he would disaffirm the contract with Mrs. Boody, to Lave taken his part, of the property from Staples, and to have restored it to the legal holder of the note.</p> <p>replied.</p>

Trespass for an alleged illegal arrest and false imprisonment. • On March I, 1842, a complaint was made against the plaintiff and his partner in business as traders, alleging that they, “on the first day of August, eighteen hundred and forty-one, and from that day to the first day of March, eighteen hundred and forty-two, at said Kennebunk, did presume to be, and were, and have been common sellers of wine, brandy, rum and other strong liquors by retail and in less quantities…

<p>Trespass for taking and carrying away a barrel of flour. On May 23, 1843, the plaintiff purchased of A. Chase, and paid therefor, a barrel of Baltimore flour, manufactured from grain which had never belonged to the plaintiff. At, this time the plaintiff was indebted to Chase for a barrel of flour, previously purchased and carried away, and not. paid for. Chase procured a writ against Tucker on this demand, and gave it to the defendant, a deputy sheriff, who attached thereon the barrel of flour last purchased. At the time of the attachment the plaintiff had a family, and no breadstuff in his house.</p> <p>It was agreed, that the Court might render such judgment as the law required, and order a nonsuit or default.</p>

Trespass quare clausum. The plaintiff claimed under a deed from Samuel Chase, dated Nov. 13, 1838, and forthwith recorded.

Exceptions from the Western District Court, Go on enow J. presiding. Assumpsit for money had and received by the defendant, to the use of the plaintiffs.

Case ' against the defendant, late sheriff of the County of Oxford, for an alleged default of J. J. Perry, then one of his deputies. The writ, in the action wherein judgment was recovered and the execution issued, whereon the equity was sold, was not served by Perry. All the material facts appear in the opinion of the Court.

Assumpsit upon a promissory note, dated Jan. 1, 1841, for ^414,13, signed by Butterfield & Barker, and payable to the defendant, by whom it was indorsed, in ninety days and grace, at either of the banks in Portland. To sustain his action the plaintiff offered in evidence the protest by Henry Ilsley, jr. a notary public for the County of Cumberland in this State, dated April 3, 1841, before the Rev. Stat. went into effect as laws.

On the trial of this action a verdict was returned in favor of the plaintiffs, and the defendants moved that it should be set aside; —. 1. Because the verdict is against evidence and the weight of the evidence at the trial. 2. Because the verdict was against the instructions of the presiding Judge to the jury. 3.

The action was assumpsit by Philo Clark, as administrator of the estate of Cyrus Clark, deceased. By the defendant the general issue and statute of limitations were pleaded. The action Was commenced Oct. 24, 1842.

Assumpsit upon a promissory note, dated Feb. 7, 1837, given by the defendants to the intestate, John Wadsworth, or to his order. The defendants, at the trial before Whitman C. J. offered to prove, that owing to some mistake or misrepresentation, made by the payee at the time of the making of the note, they ought not to be held beyond the amount paid and indorsed on the note. The plaintiff objected to the admissibility of such proof.

Assumpsit against Hutchins-as guarantor of a note of which a copy follows.— “ Portland, June 2, 1836. Value received I promise to pay Moses Hutchins, Jr. or order one hundred and fifteen dollars on demand and interest. Wm. Rice.” . On the back of the note were these words, subscribed by Hutchins, without date. “ For value received I guarantee the payment of the within note to W. Gamage. “ Moses Hutchins, Jr.” The action was commenced Dec. 30, 1841.

Replevin for two heifers. The writ was dated Oct. 28, 1842, was served upon the defendant the next day, and was made returnable before a justice of the peace on Nov. 5, 1842. On the return day the defendant appeared, and pleaded in abatement, that by the return upon the writ it did not appear to have been served fourteen days before the day of the Court to which it was made returnable, and that therefore the service was insufficient. This plea was overruled by the justice.

Complaint under the bastardy act. The examination of the plaintiff' before a magistrate, wherein she alleged that the child was begotten by the respondent “ on or about the 20th of October, 1842, just before bedtime in the evening, .in the kitchen of said Bosworth,” was taken April 7, 1843. After proving that she accused Bosworth in the time of her travail, she was offered as a witness.